ON APPLICATION FOR REHEARING
Rendered January 5, 1939
BY THE COURT:The above entitled cause is now being determined on plaintiff-appellant’s application for rehearing.
In the outset and in answer to the second paragraph in the application, we desire to assure counsel for appellant that he need have no apprehension that this court will be antagonized through his presentation of his reasons for a new hearing.
The application is presented under Specifications 1, 2, 3 and 4.
Evidently counsel fails to understand our original opinion as it referred to the fact that a full and complete transcript of the evidence was not presented. Counsel had the absolute right to present only so much of the record as he felt would correctly present the errors complained of. The thought that we were conveying was that the character of some of the errors complained of would not be manifest in the absence of a bill of exceptions 'containing all the evidence. While it is true that the court in his charge must take the issues made up through the pleadings as.his guide, yet the evidence relative to these issues influences and .materially affects the court’s charge. For instance, let us suppose that upon some issue the plaintiff presented no evidence at all. Under this condition, the court would withdraw that issue from being considered by the jury. Again, the evidence may not entirely conform to the issue and the averment as set out in the petition, and yet may not go so far as to be a departure. Most assuredly the court should charge this issue in the light of the presented evidence.
In other words, a reviewing court starts out with the theory that the judgment of the lower court is correct, and the same will not be disturbed until it affirmatively appears that error is present.
In the absence of a bill of exceptions containing all the evidence, it is proper, if possible, to presume that the evidence if presented would relieve uhe record of all claimed errors.
Counsel for appellee was not obligated to to secure a bill of exceptions or to take such steps as to bring up a complete bill if under the existing conditions he felt that the court would sustain the judgment under the deleted bill presented by appellant.
Under Specification 2 counsel for appellant asserts that appellee’s failure to file a brief, as required under Rule 7 of our court, should be considered an implied admission that the law as cited by counsel for appellant should govern, and the assignment of errors well founded. We are unable to follow counsel in this reasoning.
It is- true' that the failure of counsel to file answer brief may jeopardize the case and it might frequently happen that a reviewing court would follow the brief of counsel for appellant. However, in the instant case counsel for appellee at the time of the call of the docket, orally stated that he waived answer brief and agreed to submit the case on the record.
Specification 3 is really a lengthy thesis on the social conditions involved in the *393case, and while interesting, has no bearing on the claimed error presented to us.
Referring to counsel’s comments as to exemplary damages, we gave our view on that proposition in the original opinion and do not think it necessary to make further comment.
Under Specification 4 it is again urged that the trial court committed error when he charged compensatory damages relative to the alleged breach of contract on failure to put out tobacco. Our view on this question is set out in the original opinion.
The application for rehearing will be overruled.
BARNES, PJ, HORNBECK and GEIGER, JJ, concur.