The opinion
Vickers and Farmer, JJ. dissenting:
Conceding the existence of errors pointed out in the foregoing opinion, none of them, in our opinion, are sufficient to justify a reversal of the judgment. The case has already been twice tried in the circuit court with the same result. The judgment rendered upon the last verdict has been affirmed by the Appellate Court. The judgment is now reversed and the cause is sent back to the trial court for a third trial. This is a hardship that ought not to be imposed upon litigants where it can be avoided without approving a record containing substantial error. The ruling of the court in regard to the evidence of the witness Drake was correct in every respect. After a statement had been cunningly drawn from him by the attorneys which was inadmissible because based upon hearsay statements, the court. immediately excluded the evidence, and, following this ruling, in the presence of the jury, with an instruction, advised the jury that all evidence that was stricken out should not be considered. This circumstance is given prominence-in the majority opinion, and it is, in effect, held that the striking out of incompetent evidence and instructing the jury to disregard it will not cure the error in the admission of incompetent testimony. If such is to become the established practice it will be difficult to ever obtain a judgment that may not be set aside for an error of this character. The conduct of the attorneys in pressing the inquiry upon the witness Drake when they should have known that he could not answer without basing his reply upon statements made to him by the deceased is highly reprehensible and deserves the severest condemnation of courts, but it ought not to be visited with a reversal of a judgment in favor of an innocent and unoffending client and in spite of correct rulings by the trial court. The other errors pointed out in the majority opinion are equally unmeritorious.
In our opinion the judgment of the Appellate Court should be affirmed.