The opinion
SAYRE, J.—
(dissenting). — In Williams v. L. & N. R. R. Co., 176 Ala. 631 , 58 South. 319 , I took occasion to express my views on the subject of the proper relation between this court and the Court of Appeals. I believe our subsequent experience in dealing with cases brought from that court to this by certiorari has demonstrated both the legal propriety and expedience of the views I then entertained and expressed. Accepting now, however, the opinion of the majority in that case, which is, according to my interpretation, that this court will not only supervise, but will revise by certiorari, the rulings of the Court of Appeals, as being now the rule of this court, I am of opinion that the revision should be complete and thorough, to the end that justice may be done according to law between the parties. To merely revise the opinions of the Court of Appeals results in no good. That course neither contributes to the uniformity of our jurisprudence, nor does it determine the rights of litigants. It does, however, introduce a new element of uncertainty and delay into the administration of the law, as witness the result in this case.
My view of the case presented by the record here transmitted to this court from the Court of Appeals is that there was no error, in the ruling of the trial court in respect to the right of recovery under the wanton count, and hence no room for an application of the doctrine of error without injury — that there was nothing in the evidence to warrant a finding of willful or wanton wrong, and that this court, looking to the record,. ought to order an affirmance. I understand that the majority of the court refuse to examine the record for1 the purpose of determining the propriety of the general *425 charge on the wanton or willful counts because that would involve a finding of fact. In that view I do not concur for reasons which have been stated by Judges Mayfield and De Graffenried in Ex parte Will Kirk-wood, infra, 63 South. 990 . I do not conceive that the case depicted by the Court of Appeals in its argument is of impossible occurrence. That court puts its conclusion as to error without injury on the evidence, on the facts, and I do not think its decision can be reviewed without an examination of the evidence, of the facts, and, in my judgment, that examination ought to he pushed to the point where this court can see Avhether the case was properly tried and make a ruling accordingly.