We agree with the majority opinion and also with the principle stated by GARDNER, C. J., and BROWN, J., but we conclude it does not here apply for the reason that substantial damage was claimed in the complaint, and the verdict of the jury for defendant may have been upon a finding that there was no substantial damage. Whereas if the element of damage, which was erroneously excluded, had remained in the case for the trial, we cannot say what the verdict would have been.
Application for rehearing overruled, opinion extended.
All the Justices concur except GARDNER, C. J., and BROWN, J., who dissent.