I concur in the reversal of the judgment tendered and in most of what has been said in the opinions which have been written in this case, but in so doing I do not think it is either necessary or appropriate to express or intimate any opinion as to the sufficiency of the evidence to show either the guilt or innocence of the defendant in the court below with reference to the very serious charges made against him (and incidentally against the former Mrs. Edgar) in the plaintiff's declaration, which charges were denied in toto by the defendant. The testimony was sharply in conflict on the issues of fact thus made up between the parties, and thus presented a jury question. If this case, after reversal and remandment, is tried again before another jury, nothing should be said by this Court which could be construed as a ruling by the Court on the weight or credibility of the evidence, either for or against either of the parties. It is, however, appropriate to consider whether the evidence preponderated so strongly in behalf of plaintiff that no other verdict could have been arrived at. In such cases, the errors complained of are usually deemed harmless errors. Such was not the case here. Both sides produced evidence sufficient, if believed by the jury, to sustain a verdict either for or against the plaintiff. It was mainly a question of the credibility of witnesses, which was purely a jury question. The jury should have been left free to fairly consider *Page 834 and determine this question without any errors on the part of the court or any conduct on the part of counsel which tended to get the jury off the track and prejudicially influence their decision.

To fairly summarize or analyze all the evidence introduced by the respective parties, so as to do full justice to both, and to the former Mrs. Edgar, whose reputation is at stake in this case, would require an opinion of considerable length, which I deem unnecessary. The transcript comprises some 850 pages, legal cap, and it took this writer some hours to read it. In passing, we might observe that the excellent manner in which the transcript was prepared, and the highly efficient work of the shorthand reporter as exemplified by the report of the testimony embraced in the bill of exceptions, are entitled to favorable comment. Such efficiency in these respects is of great assistance to the reviewing court.

This was a hotly contested case, and, as too often occurs, in the heat of the contest and argument, many unfortunate remarks were made by distinguished counsel on both sides, which in calmer moments would not have been made, but which tended to prejudice a fair and impartial consideration of the case in the minds of the jurors. Furthermore, some of the questions propounded to witnesses by counsel for plaintiff, and objected to by counsel for defendant, which objections were overruled by the court and exceptions reserved, were not allowable under the rules of evidence, and their allowance by the trial court constituted error. The allowance of some of these questions was also complained of in the motion for new trial. See grounds 15 and 22 of said motion.

Furthermore, several of the charges given by the court unwittingly assumed as proven facts which were sharply disputed and as to which the evidence was in conflict. *Page 835

I concur, therefore, in the opinion of the majority of the Court that the judgment below should be reversed and the case remanded for another trial.

TERRELL, J., concurs.