The opinion
RICE, Justice
(dissenting).
The reason I cannot agree that the verdict was contrary to the weight of the evidence is that our Supreme Court used this language in discussing a case involving the same controlling legal principle as the one concerned here, to wit: “The full evidence as to the modern equipment of the plant and the details of operation, including inspection both before and after filling the bottle, serve rather to emphasize than to disprove negligence of some employee in passing into the market a bottle containing the articles disclosed in the evidence.” Try-Me Beverage Co. et al. v. Harris, 217 Ala. 302 , 116 So. 147, 148 ; Code 1923, § 7318.
When this case was remanded to us by the Supreme Court, I prepared for this court and, after due consideration, there was adopted by this court the following opinion, to wit:
“Opinion After Remandment.
“RICE, Justice.
“We thought what we wrote in our original opinion was decisive of this appeal. So we stood by it, and on it.
“But, we understand from the majority opinion of the Supreme Court that — her testimony tending to show that appellee suffered injuries from eating bread made of the flour described in our other opinion —the question of appellant’s liability vel non as for negligence was one to be decided by the jury. Code 1923, § 7318; Const. 1901, § 140.
“We therefore proceed to inquire — ■ which, obviously, was unnecessary, if not improper, under the views controlling our original opinion — whether or not prejudi
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dally erroneous rulings, other than the one treated by us therein — properly presented for our review — occurred on the trial of the case in the court below.
“We are persuaded that a detailed treatment of the assignments of error based on the other rulings complained of is not required. It is not our purpose to dispose of the case in such a way as to preclude appellant’s having our decision on the questions presented reviewed by the Supreme Court; so we state that we have carefully examined each assignment of error shown by appellant’s brief on original submission to have been insisted upon in the way prescribed by the rules and holdings by our Supreme Court (Futvoye et al. v. Chuites et al., 224 Ala. 458 , 140 So. 432 ), and that, while we do not say that no error infected any such ruling (other than the lulling of the trial court whereby appellant’s motion for a new trial was denied), yet we do say that no prejudicial error infected same. In other words, in the light of the opinion by the majority of the Supreme Court on certiorari, we cannot say that any one or all of such rulings, even if technically erroneous, in our opinion ‘after an examination of the entire cause * * * has probably injuriously affected substantial rights of the (appellant).’ Hence, under the express terms of Supreme Court rule 45, we are not allowed to order a reversal of the judgment on account thereof.
“As for the action of the trial court in overruling appellant’s motion to set aside the verdict and grant to it a new trial, we observe that the case was tried before- a special judge — a learned member of the bar — literally of appellant’s own selection —it agreeing that he should try the case.
“Much of the testimony on behalf of appellee was subject to the criticism leveled at it by appellant in this court — and, we doubt not, in the lower court. But, such as it was, it was full, copious, and ample.
“The learned trial judge saw and heard the witnesses; saw and heard the things so loudly derided here — the confusion, the inconsistencies, the eagerness, and what not. He denied appellant’s motion.
■ “We do not see, the law being as deducible from the holding by the majority of the Supreme Court on certiorari, upon what principle we might hold the said action of said judge erroneous. We refuse to so hoM.'
“It results, there being no ruling of a prejudicially erroneous nature presented to us, the judgment is affirmed.
“Affirmed.”
The above opinion, though now withdrawn by my associates, still expresses my views.
I, therefore, beg to dissent.