dissenting.
It is with great reluctance that I offer my views of this case, because of the respect I have for the judgment of my brethren. However, having formed an opinion different from them, which brings me to an opposite result, I do not feel free to remain silent.
The doctrine of harmless error is favored by this court, is firmly embodied in our jurisdiction, and is often applied to avoid mere irregularities in form or technical points of law in our effort to obtain substantial justice. It is thus applicable when we can say it appears clearly that the error did not affect the merits of the case, nor in anywise prejudice the party appealing, and that, upon the whole case, no other proper verdict could have been rendered.
‘In this case, the court gave fifteen instructions to the jury. They covered every phase of the case and an issue not properly involved. The evidence bearing on the question of the negligence of the defendant’s agent was directly in conflict. The jury, upon the conflicting evidence, might have found the defendant’s agent not guilty of negligence, if they had believed the evidence of the defendant. The nature of the case was such as to make a strong appeal to the sympathies of the normal man in favor of the plaintiff. Thus, it would be natural to expect the jury to look for some ground upon which to peg a verdict for the injured party. This situation made it necessary that the instructions correctly state the law applicable to the evidence bearing upon the issues involved.
The majority opinion very properly holds that instruction No. 1 was erroneous, both because it was not relevant to the issue involved and there was no evidence upon which to base it.
The trial court, in giving the instruction over the objection of the defendant, manifestly thought that the jury should give consideration to the circumstances therein recited, circumstances irrelevant to the issue. Plaintiff’s counsel, both in his argument in this court and in his brief, *975stoutly contended that the jury properly found that the defendant failed to employ a competent operator of the truck. Evidence that the “driver of the truck had no chauffeur’s license, and was merely a helper on the truck,” operating it in the absence of his brother on the day in question, was relied on.
The introduction of this evidence emphasizes the error in granting the instruction. The instruction emphasizes the duty of the jury to give it consideration. It furnished the jury an improper basis for a verdict against the defendant. If the trial judge and plaintiff’s counsel believed that this evidence had a bearing on the merits of the case, how can we say that the jury, composed of laymen, escaped such a view?
Every man is entitled to a fair trial. A fair trial is dependent upon a proper application of the law to the facts of his case. In á great number of cases, we have said that error will be presumed prejudicial unless it plainly appears that it could not have affected the result. Norfolk Ry., etc., Co. v. Corletto, 100 Va. 355, 41 S. E. 740; Volume 1, Digest of Virginia and West Virginia Reports (Michie), Appeal and Error, section 265, subsection 3, and cases cited.
See also, Virginia Coal, etc., Co. v. Ison, 114 Va. 144, 75 S. E. 782; Realty Co. v. Burcum, 129 Va. 466, 106 S. E. 375.
“All error is presumed to be prejudicial.” Wolfe v. Commonwealth, 167 Va. 486, 489, 189 S. E. 320.
“There is no presumption that an error is harmless.” Irvine v. Carr, 163 Va. 662, 668, 177 S. E. 208.
A correct statement of the law applicable to the case, when the law is stated, is essential to a fair trial. Limbaugh v. Commonwealth, 149 Va. 383, 140 S. E. 133.
In Norfolk Ry., etc., Co. v. Corletto, supra, Judge John A. Buchanan said:
“It has been repeatedly held that it is error to give an instruction when there is no evidence tending to prove the facts upon which the -instruction is based. The reason for this is that the tendency of such instructions is to mislead *976the jury, by withdrawing their attention from the legitimate points involved in the issue. Juries are sufficiently prone to indulge in conjectures, without having possible facts not in evidence suggested for their consideration. Kimball v. Borden, 95 Va. 203, 207, 28 S. E. 207, and authorities cited. It is also well settled that if a misdirection or other mistake of the court appear in the record it must be presumed that it affected the verdict of the jury, and is therefore ground for which the judgment must be reversed, unless it plainly appears from the whole record that the error did not affect, and could not have affected, their verdict. Kimball v. Borden, supra, and authorities cited; Richmond Traction Co. v. Hildebrand, 99 Va. [48], 56, 34 S. E. 888.”
The defendant in error not only failed to affirmatively show that the error was not prejudicial, but contended that this was no error. But beyond this, for the reasons stated, I am of the view that the erroneous instruction tended to mislead the jury. It is impossible to say upon what grounds the jury based its verdict. Green v. Ruffin, 141 Va. 628, 125 S. E. 742, 127 S. E. 486.
The judgment should be reversed and the case remanded for a new trial, under proper instructions.