Mobile Light & R. Co. v. Thomas, 1 Div. 216

• Court: Alabama Court of Appeals
• Writing for the Court: BRICKEN, J. PER CURIAM.
• Citation: 77 So. 463,16 Ala.App. 313
• Parties: MOBILE LIGHT & R. CO. v. THOMAS. [*]
• Docket Number: 1 Div. 216
• Decision Date: 13 November 1917

77 So. 463

16 Ala.App. 313

MOBILE LIGHT & R. CO.
v.
THOMAS. ^[*]

1 Div. 216

Court of Appeals of Alabama

November 13, 1917

Rehearing Denied Jan. 15, 1918

Appeal from Law and Equity Court, Mobile County; Saffold Berney, Judge.

Action by Elijah Thomas against the Mobile Light & Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellant.

Webb, McAlpine & Grove, of Mobile, for appellee.

BRICKEN, J.

This action was brought to recover damages for personal injury suffered by plaintiff, and damages to the wagon in which he was riding at the time he was struck by the defendant's street car.

There are 16 assignments of error. Nos. 1 and 2 are predicated upon rulings sustaining demurrers to certain pleas filed by the defendant. Nos. 3 and 16 assign as error certain rulings of the court upon the admission of testimony during the trial of the case. None of these assignments are insisted upon in brief of appellant's counsel. They must therefore be regarded as waived. L. & N.R.R. Co. v. Holland, 173 Ala. 675, and cases cited on page 694, 55 So. 1001.

The remaining assignments seek to have this court to review the ruling of the trial court in the giving of written charges requested by the plaintiff and the refusal of written charges requested by the defendant. These charges do not appear in the record proper, but only in the bill of exceptions. On this state of the record, the assignments of error predicated upon them are not reviewable. General Acts 1915, p. 815; Malone v. State, 76 So. 469; Carter v. State, 76 So. 468; Southern Ry. Co. v. Propst & Duckworth, 76 So. 470; Dempsey v. State, 72 So. 773.

Affirmed.

On Application for Rehearing.

PER CURIAM.

The appellant questions the soundness of the holdings in the cases cited in the foregoing opinion, to the effect that charges which do not appear in the record proper, but appear in the bill of exceptions, are not properly presented for review. The ground on which appellant questions these holdings is that special charges requested by the parties and given or refused and properly indorsed as required by the statute are not made thereby a part of the record proper, and can only become a part of the record by being incorporated in the bill of exceptions.

The statute (Code 1907, § 5364) as amended by act approved September 25, 1915, provides:

"Charges moved for by either party must be in writing and must be given or refused in the terms in which they are written; and it is the duty of the judge to write 'Given' or 'Refused' as the case may be, on the document, and sign his name thereto, which thereby becomes a part of the record, and charges which are given must be taken by the jury with them on retirement, and those refused must be retained by the clerk. The court shall after the conclusion of his charge to the jury read such written charges as he has given for the parties in a clear and audible voice, saying to the jury, 'These are instructions given you by the court at the request of the plaintiff or defendant, as the case may be, and are correct statements of the law to be taken by you in connection with what has already been said to you.' The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general

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