The opinion
BRICKEN, J.
(dissenting). I cannot concur with the majority of this court in granting the application for rehearing, and in setting aside the judgment of affirmance, and in reversing and remanding this cause. As stated in the original opinion, I am convinced that issues involved were fairly, properly, and ably submitted to the jury and that the judgment in the court below should not be disturbed.
I cannot agree with my Brothers that charges 4, 5, and 7 given at the instance of plaintiff withdrew from the consideration of the jury other defenses relied upon in this case. These charges purported to deal only with the issue as to the legal duty of plaintiff to furnish board, lodging, washing, etc., to the deceased, and to this extent they contain absolute correct propositions of law, and are therefore not erroneous. In the case of Forbes & Carloss v. Plummer, 198 Ala. 162 , 73 South. 451 , it is said:
“A charge, in an action for the conversion of a saw mill, purporting to deal only with” one of the issues in the case “set up in the plea, did not withdx-aw all other defenses from the jury.”
See, also, Twitty v. State, 168 Ala. 59, 68 , 53 South. 308 .
If these charges are subject to any criticism, the most that could be said of them is the criticism applied in the opinion that at most they are only misleading. And if as a matter of fact they were misleading, this vice could and should have been corrected by explanatory charges, which was done by the oral charge of the court. While the
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giving of an absolutely erroneous charge cannot be cured by the giving of a correct one, whether oral or written, the mere misleading tendencies of a given charge may be thus corrected. Forbes & Carloss v. Plummer, supra.
The case of Ala. Steel & Wire Co. v. Thompson, 166 Ala. 460 , 52 South. 75 , cited by the majority, is not in point here. That case was an action of damages for personal injury to an employe, and the defenses interposed were naturally contributory negligence and assumption of risk, a special affirmative defense, and in effect made the one and only issue involved, and as a consequence the charges in question, ignoring, as they did. certain phases of the evidence on which the plaintiff might have been entitled to recover, notwithstanding the facts hypothesized in the charges, the criticism of such charges for these reasons was corretet.
In the case at bar, it is manifest from the entire record and the verdict rendered by the jury that the defendant suffered..no in-' jury as a result of these charges. It affirmatively appears that the jury allowed every contention of the defendant on the trial of this case, and under the issues (1) as to whether the board was furnished as a gift, (2) or was paid for by the defendant’s decedent, (3) and also the question of set-off. Prom my viewpoint, if there ever was or could be a case wherein rule 45 should be invoked, it is here. This rule was intended to obviate previous rulings as to reversing cases upon the mere presumption of injury, whenever errór is shown, and makes it incumbent upon appellant to not only show error, but also that he was probably injured thereby. Sup. Ct. Rule 45 ( 175 Ala. xxi , 61 South, ix ); Henderson v. Tenn. C. I. & R. R. Co., 190 Ala. 126 , 67 South. 414 . Injury is no longer presumed. Harrell v. Hooks, 16 Ala. App. 571 , 80 South. 145 ; Wilson v. Owens Horse & Mule Co., 14 Ala. App. 467 , 70 South. 956 .