We tried to indicate the respects in which the evidence on the last two trials was materially different, or that it was not "substantially the same evidence"; and that the rule of the statute, Code, § 9519, and Doe ex dem. Windsor Realty Co. v. Finnegan, 216 Ala. 431, 113 So. 277, should not be applied. However that may be, several questions of evidence and arguments of counsel to which exceptions were reserved are pressed for consideration and appear necessary for decision.
In the statement of the case to the jury and in argument, an immaterial and prejudicial issue was presented — whether or not the first operation was properly or skillfully done. This was of no concern to the defendant, who was in no wise bound or to be affected thereby. However, the jury, under such immaterial issues and argument, may not have been able to follow the material evidence presenting the question of vitiating misrepresentations or breach of warranty vel non when the policy was applied for, issued, and delivered.
There was yet another question of fact admitted in evidence and commented upon in argument that should not have been *Page 271 admitted or argued, and with which the minds of the jurors may have been and were, no doubt, confused, viz., the personal knowledge of the soliciting agent as to assured's previous and then physical condition when the policy was delivered. This is illustrated by the argument of plaintiff's counsel, saying:
" 'The agents saw this man day in and day out, and they knew that because they saw him day in and day out that his leg was cut off above the knee.'
"The defendant objected to said statement on the ground that there is no evidence in the case to that effect. Thereupon, the Court said: 'I don't think that there is any evidence that they saw him day in and day out.' Counsel for the plaintiff then said: 'You can assume that they collected thirty cents a week.'
"The Court overruled the defendant's objection to said statement and made this statement: 'He is just probably arguing his inference from the testimony.' To this action of the Court, the defendant then and there in open court duly reserved an exception."
This was an improper argument, highly prejudicial, and not founded on the evidence.
Application overruled.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.