11004

#### STEELE v. BOYD

(113 S. E. *477)*

ArPEAL AND ERROR-COUNSEL REQUIRED TO CALL COURT’S ATTENTION TO Misstatement op Issues. — Where the trial Judge erroneously states the issues raised by the pleadings, counsel must call his attention to this error.

Before Memminger, J., Florence.

Appeal dismissed.

Action by J. R. Steele against C. Mills Boyd. Judgment for plaintiff for a reduced amount and he appeals.

The exceptions referred to in the opinion are as follows;

It is respectfully submitted that the presiding Judge committed error in stating issues, in that—

(a) He stated the question for the jury, “What compensation shall be paid for the use of these machines in question ?”

(b) “The action is brought here against him [the defendant] for the rental value of these two machines, for the time during which he had them in his possession, 34 days.”

*142(c) “This action is based upon the idea of rent.”

(d) “They .are suing for the rental value of it.”

(e) “This is not an action for damages.”

(f) “Of course it is not possible to collect any claim for damages to this machine by reason of the fact that it was taken unlawfully.”

(g) “They claim the rental value.”

(h) “This action is entirely for the rental value of this property.”

Whereas, the Judge should have charged the jury that the pleadings and the evidence presented a case of unlawful conversion and for damages for the unlawful use and occupation of the property of another and injury thereto.

II. That the presiding Judge erred, it is respectfully submitted, in limiting the findings of the jury to the sole question of rental value; whereas, he should have submitted to the jury all questions of damage, including loss of time, expense in repairs, and .all other disbursements made necessary by the unlawful taking and using said property, the difference in the condition and value of the property before and after said unlawful use and occupation.

III. That the presiding Judge erred, it is respectfully submitted, in charging the jury that the measure of plaintiff’s damages was rental value.

*Messrs. McNeill & Oliver*and /. *K. Owens,*for appellant.

No citations.

*Messrs. Whiting & Baker,*for respondent.

September 1, 1922.

The opinion of the Court was delivered by

Mr. ChiEE 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 *143sum 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.