(dissenting). — I cannot subscribe to the doctrine announced in the majority opinion in *289this' case on the application for a rehearing. The original opinion was correct, and should have been adhered to.
The opinion of my Brother Somerville on this application, I fear, takes a step in the wrong direction, and I cannot follow. To me it seems to encourage transgression of the law, and to reward the laws offender at the expense of him who is offended against. Brother Somerville's opinion, in my judgment, says to the advocate, in effect, though not in words: “Use any argument not grossly improper or highly prejudicial, if by it you may obtain a verdict in favor of your client; for, perchance, under the rules announced by the court, the other party may not be able to object and except at the right time, or in the right manner, and your verdict, however procured, will be good and valid.” Of course, I know that Brother Somerville and those who- agree with him do not think this is the effect of the decision. They are as free from any will or desire to produce such a result as I am. Their error is in tailing to perceive the effect of what they have said and decided.
The opinion, as I read it, concedes that the argument in question was improper, and calculated to prejudice the party against whom it was used. The record conclusively shows that it was effective; that is that the verdict was what the argument tended to produce. So there is no ground upon which “error without injury” can stand; yet the conrt in effect says to the plaintiff: “You did wrong, and profited by it; but you did it so artfully and gently that the one whom you wronged was not able to so make or formulate his objections and exceptions as to prevent you from profiting by it; so we say to you: ‘Go on; do it again; but don’t get caught.’ ” ■This, I think, is shown by the part of the opinion of Brother Somerville after stating the remarks of coun*290sel, to which he refers. He says: “They presented to the jury a consideration of the wealth, revenue, and advantages enjoyed by the defendant corporation, and must have carried the sinister suggestion that those matters were to be considered by the jury in determining, either the fact of defendants responsibility, or the amount of the penalty it ought to pay. * * * And, indeed, it is but just to say that, unless the facts stated were intended to influence the jury, and were deemed capable of doing so, they would hardly have been presented by plaintiffs counsel.”
To these remarks of counsel, the counsel for the defendant corporation objected, and when the trial court overruled the objection the objecting party excepted. The trial, of course, resulted in a verdict and judgment for the. plaintiff, just as the court says was intended by counsel in using the improper arguments. By the aid of the trial court he scored against the defendant by this argument, when he might not have been able to do so without it. Counsel for defendant, still objecting, and still insisting upon the trial court’s correcting the error, moved the court for a new trial, on the ground that the verdict was obtained by this concededly improper argument. The trial court adheres to his former erroneous ruling, and overrules the motion and allows the ill-gotten verdict to stand. And this court says to the offending pai’ty: “Profit by your own wrong, because the party offended against was not able to prevent the trial court from aiding and allowing you to so profit; and he did not so formulate and time his objections and protests as that we can correct the error; so go on and do it again, and the chances are, if the trial court does not stop you, we cannot, unless “grossly improper and highly prejudicial.’ ”
*291The effect of this decision, in my humble judgment, is to say that this court should affirm errors, if it can, and should correct them only when it is impossible to affirm. I do not believe this to be the proper function or office of an appellate court. I rather agree with the ■Missouri court that “an appellate court is a court for the correction of errors — its own as well as others.”— Mangold v. Bacon, 237 Mo. 516, 141 S. W. 655. The Docket, December, 1912, p. 849.
Technical rules to prevent wrong and injustice are authorized, and are to be commended; but to allow them, to work a wrong or injustice is a bad practice, which will destroy the usefulness of appellate courts,
I am aware, of course, that the majority do not think they are affirming this case on technical grounds, nor that they are aiding injustice or wrong in the decision; but to my mind this is the effect of the ruling, and for these reasons I cannot agree to the decision. The grave error, according to my view, into Avhich the majority have fallen is foreshadowed in the part of Brothei Somerville's opinion Avhich, after stating, in effect, that the remarks were improper and tended, and “were intended,” to influence the jury, “and were deemed capable of doing so,” concludes as folloAvs: “Upon a very full consideration of the two statements heretofore pointed out as improper, we cannot say, from the dim light afforded by the record, that they Avere, as made, either grossly improper or highly prejudicial.” In other words, the court decline to correct the error, because they cannot say it Avas “grossly improper” or “highly prejudicial.”
I do not think the Irav in this state has ever before been announced to be that, in order for the error of a trial court to be corrected on appeal, it must be affirmatively shown by the party injured that the error Avas *292“grossly improper” or “highly prejudicial.” There may be dicta to support such a conclusion; but I am sure that there are not, and ought not to be, any decisions to such effect. The rule of law in this state is now, and has ever been, that all the appellant is required to show is error on the part of the trial court. When he shows this, the law presumes injury, without inquiry 'whether the error was “grossly improper” or “highly prejudicial.” If, however, the record affirmatively shows that there was no injury, then, of course, the appellate court will not reverse; but, unless this is affirmatively shown, the court must reverse, or the court fails to do its duty —to perform the only function for which it was created, and which affords the only excuse for its existence.
This rule of appellate procedure has been well stated by McClellan, J., in Maxwell's Case, 89 Ala. 164, 7 South. 828, the decision in which case has been frequently quoted and readopted by this court; and the statutes and the published rules of this court have been readopted with this known construction placed upon them. In that case the error complained of was in the admission of evidence. Justice McClellan said: “It may be — indeed, it is highly probable — that the evidence did not prejudice the defendant. Nay, further, we are utterly unable to see that it did or could have worked him injury. But, on the other hand, we cannot affirmatively see that it dicl not injure him; and we do not feel that safety and certainty, which the rule, even in civil cases, requires to rebut the presumption of injury from error, that no harm was done which would warrant us in holding this error to have been without prejudice.” (The italics above are his, not ours.)
I know that the language of Brother Somerville, quoted above, was intended to refer to the remarks of counsel for plaintiff, and not to the action of the- trial *293court; but the error of the court in declining to stop such remarks, and in thus approving them, can stand in no better, if in as good, light as do the remarks of counsel. Appellate courts do not and cannot review the actions of litigants or their attorneys in nisi prius courts; they can only review actions of the trial court.
The trial court was repeatedly called upon to check or prevent this improper argument, and declined repeatedly so to do, thus, in effect, saying to the jury and the litigants, “This is proper argument.” The defendant’s counsel not only repeatedly objected to the argument, and excepted to the ruling and action of the court during the argument, but after this, and after the verdict was procured and was such a one as this argument was calculated to produce, the defendant again moved the court to right its former wrong and error by setting aside the verdict so obtained and awarding a new trial, and the court declined to correct its error, or to attempt to relieve against it; and on appeal this court declines to reverse, notwithstanding it is conceded that numerous errors are shown, for the reason, as the court says: “Upon a very full consideration of the two statements heretofore pointed out as improper, we cannot say, from the dim light afforded by the record, that they were, as made, either grossly improper or highly prejudicial.” In my opinion, this is a new departure from a long line of cases in this court which are cited and reviewed in the case of B. R., L. & P. Co. v. Drennen, supra.
In Drennen's Case the trial court sustained the defendant’s objection to the remarks of plaintiff’s counsel, and nothing further was then requested by counsel; and hence there was nothing to review as to the action of the court on the main trial, because the only ruling or action of the court in the matter was in favor of the defendant; but the defendant assigned this remark of *294counsel as a ground for a new trial, and the trial court overruled the motion, and we held it was error, and reversed the case.
Here the counsel for the same defendant objected several times, and the court overruled his objection, and the defendant excepted. Here there is an action of the court to review as to the main trial, and one which, this court says, in effect, was an erroneous action; but it declines to reverse. The defendant then, in this case, moved the court to grant a new trial on the ground of this improper and prejudicial argument of counsel, which the court had repeatedly declined to check, and in effect approved, for the consideration of the jury. The trial court again erred and refused to do its duty; and this court declines to correct the error, because, as is said, from the dim light afforded by the record, the court cannot say that the remarks were “grossly improper and highly prejudicial.”
In the case of Wolffe v. Minnis, 74 Ala. 386, the remarks of counsel were nothing like as objectionable as in the present case, and when objected to counsel making the remarks said: “Oh, well, I’ll take it back.” The defendant’s counsel said to the court, “The defendant insists on his objection.” The court said nothing; did not withdraw said remarks from the jury, nor instruct them not to consider the same, and did not take any action in reference thereto; and the defendant excepted thereto. The defendant did not expressly ask the court to instruct the jury not to consider the same, and did not expressly ask the court to take any action in reference thereto; yet, notwithstanding the defendant’s counsel did not ask the court to take any action, the court considered it reversible error, and that it was properly raised by a mere objection and exception. The court, speaking through Stone, J., in that case said: “We *295think the language complained of in this case should not have been indulged; and coining as it did from able, eminent counsel, it was well calculated to exert an improper influence on the minds of the jurors. The court might, and probably should, have arrested it ex mero motu. It is one of the highest judicial functions to see the law impartially administered, and to- prevent, as far as possible, all improper, extraneous influences from finding their way into the jury box. And when opposing counsel objected to the improper language employed, and called the attention of the court to it, it ivas not enough that offending counsel replied: ‘Oh, well, I’ll take it hack.’ Such remark cannot efface the impression. The court should have instructed the jury, in clear terms, that such remarks were not legitimate argument; and that they -should not consider anything thus said in their deliberations. Nothing short of a prompt, emphatic disapproval of such line of argument, and that from the court itself, can avert the probable mischief. — Sullivan v. State, 66 Ala. 48; Cross v. State, 68 Ala. 476.”
The other cases are reviewed in Drennen’s Gase, supra.
The Texas and Georgia courts have, in my judgment, stated the true and correct rules of practice in such cases. They have said:
“The rules for the government of the district court prescribe that ‘counsel shall be required to confine the argument strictly to the evidence and to the argument of opposing counseland that ‘the court will not he required to wait for objections to be made when the rules as to arguments are violated, hut, should they not he noticed and corrected by the court, opposing counsel may ask leave of the court to rise and present his point of objection.’ — Rules 39 and 41 1142 S. W. xx]
*296“It is'further provided (rule 121) that any supposed violation of the rules to the prejudice of a party may be reserved by bill of exceptions, presented as a ground for a new trial, and assigned as error by the party who may have conceived himself aggrieved by such supposed violation." — Willis v. McNeill, 57 Tex. 474, 475.
“In announcing as a rule of practice that which was subsequently incorporated into the present rules of court, above quoted, it is said by the late learned Chief Justice of this court, in Thompson v. State, that ‘zeal in behalf of their clients, or desire for success, should never induce counsel in civil cases, much less those representing the state in criminal cases, to permit themselves to endeavor to obtain a verdict by arguments based upon other than the facts in the case and the conclusions legitimately deducible from the law applicable to them.’ It is further said that such practice is of sufficiently grave importance and so highly objectionable as to require the decided condemnation of the court.— 43 Tex. 274.
“Whether counsel, under such circumstances, remain silent or object may be alike prejudicial to his cause. Silence may be construed into acquiescence; objection may call forth a damaging repartee.” — Willis v. McNeill, supra.
“Nor ought the presiding judge to wait until he is called on to interpose. For it is usually better to trust to the discrimination of the jury as to what is and what is not in evidence than for the opposite counsel to move in the matter. For what practitioner has not regretted his untoward interference, when the counsel, thus interrupted, resumes: ‘Yes, gentlemen, I have touched a tender spot; the galled jade will wince; you see where the shoe pinches.’ ” — Berry v. State, 10 Ga. 522.
*297Such, I submit, is practically the rule that has always prevailed in this court. See Florence v. Field, 104 Ala. 471, 16 South. 538, where it is said: “On objection raised by defendant’s counsel, the court said the objection was sustained, and stated to counsel making the remark that it was improper; whereupon the said counsel remarked: ‘Well, I withdraw the remark? There was no exception reserved by defendant to this remark of counsel, nor to the action of the court upon it. Nor is it made the basis of a motion for a new trial. It is, however, assigned as error. We have referred to it to state that the remark was calculated to seriously prejudice and injure the defendant with the jury. The action of the court in excluding it was very mild, and not a sufficient antidote to the poison that had been injected into the minds of the jury by the use of such language. Verdicts ought not to be won by such methods; and when an attorney, in the heat of debate, goes to such extraordinary lengths, generally the court should promptly set aside any verdict that may be rendered for his client. The repressive powers of a court to prevent such departures from legitimate argument of a cause before a jury should be vigorously applied. No mere statement that it is out of order or improper can meet the exigencies of the cases. Nothing short of such action on the part of the court and a clear satisfaction, that the prejudice naturally excited by the use of such language had been removed from the minds of the jury ought ever to rescue a case from a new trial on motion of the party against whom rendered.”