September 1, 1922. The opinion of the Court was delivered by
MR. CHIEF JUSTICE GARY.
This is an action brought against the defendant for the unlawful possession, use, and occupation of certain concrete mixers belonging to the plaintiff, and for damages to the same, together with expenses incurred in repairs thereof, and time necessarily lost by plaintiff and his laborers. The jury rendered a verdict in favor of the plaintiff for the sum of $255, and the defendant appealed upon exceptions which will be reported.
If his Honor, the presiding Judge, stated the issues raised by the pleadings erroneously, it was the duty of counsel to call his attention to such error.
Appeal dismissed.
MR. JUSTICES FRASER and MARION concur.
JUSTICE COTHRAN (dissenting):
The action was for damages resulting from an alleged trespass, consisting not only of the rental value of the property taken, but for the physical injury inflicted. I think that it was error to prescribe the rental value as the whole measure of damages.