ON REHEARING.
The complaint contained five counts, and demurrers were sustained to counts 1, 4, and 5 thereof, leaving counts 2 and 3, upon which the trial was had.
On application for rehearing, it is complained that, while the law as held in the opinion justified the action of the court in sustaining the demurrers to said counts 1 and 4, which ascribed the negligence of defendant to his act in failing to keep a watchman at the stable at night, yet that what was said in the opinion had no application to count 5, to which a demurrer, was, as said, also sustained, and which contained no averment *193of the character mentioned, but merely averred, in general terms, without specifying the particular acts of diligence the defendant should have 'employed, that: “Defendant failed to exercise ordinary care in keeping said horse, buggy, and harness of the-plaintiff, and negligently allowed the same to be burned up and destroyed by fire.”
(12) With respect to this count we purposely omitted stating in the opinion a matter so manifest that we did not deem it necessary to state, especially in view of the learning and ability of appellant’s counsel, and that is that, while the count was in no wise objectionable (Leach v. Mayson, 57 Ala. 155; Va.-Carolina Chem. Co. v. Mayson, 7 Ala. App. 590, 62 South. 253), there was certainly no injury whatever to the appellant in sustaining the demurrer to it, because it was a practical duplicate of counts 2 and 3, on which the trial was had, and under which the appellant had the right, and was allowed, to introduce all evidence to sustain his case that he could have introduced under count 5 had it remained in the pleading.—Beall v. James, 122 Ala. 414, 26 South. 1.
(13) Complaint is also made on application for rehearing that we did not discuss in the opinion charge 1, given at defendant’s request. Likewise the action of the court in giving this charge was so clearly free from injury to appellant that we did not deem it necessary to point it out. The charge reads as follows: “The court charges the jury that they cannot find a verdict for the plaintiff unless they are reasonably satisfied from the evidence that the destruction of his horse was proximately caused by negligence of the defendant.”
The giving of it did not constitute reversible error in this case, because, although the plaintiff is, as is suggested, suing for the loss of his buggy and harness, as well as for the loss of his horse, and although the charge asserts that the jury cannot find for plaintiff unless reasonably satisfied that the destruction of his horse (ignoring buggy and harness) was proximately caused by defendant’s negligence, and although there may be cases where a plaintiff might recover for the loss of buggy and harness, if there was negligence as to them, notwithstanding there was no negligence as to the horse, whose loss was also sued for, yet in this case the facts are such that it appears without room for dispute that if there was no negligence on defendant’s part as to *194the horse, there was certainly none as to the buggy and harness —all being sued for in the same count as having been lost by the same negligence. Consequently the charge, when applied to the pleadings and facts of the case, was, if error, free from injury to appellant.
As to the other matter complained of on rehearing, to wit, that we erred in the testimony of defendant’s witness Reddock, which was to the effect that in his judgment it was not necessary for defendant to keep a watchman at the stable at night, we may say that we find nothing in the authorities cited, or in the argument presented, to shake us in our conviction that we properly disposed of this matter in the opinion. Besides, we may say, in addition to what was there said, that it occurs to us that it is with poor grace, if with right, that appellant complains of the action of the lower court in letting in that evidence, when it appears that the court, at appellant’s instance and in his favor, let in similar evidence of a positive character; that is, allowed appellant’s witnesses to testify that in their judgment it was necessary for defendant to keep a watchman at the stable at night. Appellant’s witnesses were in law, for reasons stated in the opinion, no better qualified to testify to this affirmative than defendant’s witness was to the inegative mentioned; for each— the affirmative and the negative — was a mere conclusion of the witness as to a matter not within the range of expert testimony.
The application for rehearing is overruled.