
    Bickley v. Sherrod.
    
      Assumpsit.
    
    (Decided Feb. 6, 1912.
    57 South. 1013.)
    1. Bills of Exceptions; Construction. — Bills of exceptions are construed most strongly against the exceptor. ■ •
    2. Appeal and Error; Presumptions. — Error is never presumed but. must be affirmatively shown on appeal.
    3. Same; Absence of Evidence. — Where it is not shown that the bill of exceptions contains all the evidence, and in the absence of a contrary showing from the record, this court will presume that the trial court was justified in giving the affirmative charge from evidence in the case not shown by the record.
    Appeal from Colbert Circuit Court.
    Heard before Hon. A. H. Alston.
    Assumpsit by B. W. Sherrod against E. L. Bickley. Judgment for plaintiff and defendant appeals.
    Affirmed.
    Paul Hodges, and W. P. Chitwood, for appellant.
    The court, erred in giving the affirmative charge as it should never be given where there is conflict' in the evidence or reasonable inferences may be drawn therefrom unfavorable to the right of recovery. — Peters v. Railroad Go., 135 Ala. 537; 5 Ma.yf. 150.
    A. E. Walker, for appellee.
    Where the bill of exceptions does not purport to contain all the evidence and in the absence of a contrary showing from the record proper, the presumption will be indulged that there was evidence justifying the court in giving the affirmative charge. — Sanders v, Steen, 128 Ala. 663; Glardy v. Walker, 132 Ala. 264. .
   db GNAFFENNIED, J.

In the case of Doe ex dem School Commissioners v. Godwin, 30 Ala. 242, the Supreme Court lays down the following propositions as definitely settled: (1) That bills of exceptions are to be construed most strongly against the exceptor. (2) That error will not be presumed, but must be affirmatively shown. (3) That when an affirmative charge is given, which is correct as an abstract legal proposition, this court will presume there was evidence to justify the charge, unless it affirmatively appears to the contrary. The above rules have not, so far as we are informed, been at any time departed from.

In the present case the bill of exceptions fails to show that' it sets out all of the evidence. It is. therefore impossible for this court to say that the trial court erred in giving the affirmative charge to the jury, which the plaintiff requested it in writing to give, for the simple reason .that, taking the bill of exceptions most strongly against the exceptor, it is not shown that it contains all of the evidence.—Evansville, etc., Packet Co. v. Slater, 101 Ala. 245, 15 South. 241; Sanders v. Steen, 128 Ala. 633, 29 South. 586; Clardy v. Walker, 132 Ala. 264, 31 South. 78.

The judgment of the court below is affirmed.

Affirmed.  