I cannot concur in the opinion or conclusion of the majority. As I understand this case, the plaintiff, after offering all his evidence, rested, and the evidence so introduced by him failed to make out a prima facie case, yet my Brothers hold that the case should be reversed because of the exclusion of said evidence. In other words, this case is reversed for the exclusion of the evidence when the trial court could have properly directed a verdict for the defendant had the evidence not been excluded. Therefore I am unable to see how the plaintiff sustained injury because of the exclusion of his evidence when the defendant was entitled to a judgment had the said evidence not been excluded. The plaintiff did not make out a case, and to my mind it is illogical to hold that he was injured by the exclusion of his evidence. I am willing to concede that the rule of excluding all of the plaintiff's evidence, before requiring the defendant to rest his case, is not to be commended, as it gives the defendant a chance to speculate, notwithstanding said rule was approved in the Bromberg Case, 141 Ala. 258, 37 So. 395. But when the plaintiff rests before making out a prima facie case, the defendant is then entitled to a judgment, and it matters not what route the trial court may take to reach the inevitable result in giving the defendant what he is entitled to have. I think that this is plainly a case for the application of the doctrine of error without injury, under the repeated decisions of this court and regardless of rule 45. Athey v. Tenn Coal Co., 191 Ala. 646, 68 So. 154; Wise v. Curl, 177 Ala. 324,58 So. 286, 6 Mayfield's Dig. pp. 325-327. But if such is not the case, then if rule 45 does not apply, I am at a loss to conceive of a case to which it should apply. Said rule reads as follows:
"Hereafter no judgment will be reversed or set aside, nor new trial granted by this court or by any other court of this state, in any civil or criminal case, on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure unless in the opinion of the court to which the appeal is taken, or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties." 175 Ala. p. xxl, 61 South. ix.
How did the exclusion of the evidence so affect any substantial right of the plaintiff as to injure him? He showed his hand and rested his case and failed to prove a state of facts that could take the case to the jury. The only idea upon which he sustained injury must rest upon the remote imagination or speculation that if the evidence was not excluded, the defendant would not have rested, but would have proceeded to put witnesses upon the stand and prove a case for the plaintiff, which he himself had failed to do, a contingency too remote and conjectural to afford a ground for reversal, especially in the face of rule 45. This was an action of ejectment, and my Brothers are reversing the case notwithstanding it is conceded that the plaintiff introduced all his evidence, rested, and failed to make out a case. I think that the judgment should be affirmed, and therefore dissent.