The parties will be referred to here as in the original opinion.
The plaintiff, in its petition for rehearing, urges that the exception of the plaintiff, to the court's findings, was sufficiently saved to entitle it to have its cross-assignment of errors considered and passed upon.
Therefore, assuming, but not deciding, that the exception was sufficient, we shall briefly consider plaintiff's contentions which are: 1. That the trial court erred in not allowing compensation for the time of plaintiff's inspector in examining the property. 2. That the court erred in fixing the value of plaintiff's services at $20 per day instead of $40 per day.
It is insisted that the evidence, relating to the value of the time of the inspector, and to the value of the services of plaintiff, was uncontroverted and that the trial court could not do otherwise than find the full amount claimed by plaintiff.
The evidence given as to the value of the inspector's time and of the value of the plaintiff's services was *Page 257 merely an expression of opinion or an estimate. It was wholly within the province of the trial court, sitting as a trier of the facts, to determine the weight and sufficiency of the evidence. The court was not bound by that evidence any more than a jury would have been bound by it. The trial judge had the right to draw upon the knowledge he possessed, in common with the generality of mankind, to the same extent that a jury could, and had the right to determine, in considering the evidence and all the facts and circumstances surrounding the case, the amount of damage the plaintiff sustained. We can not disturb the findings and judgment of the trial court.
The original opinion is modified as herein indicated, and as so modified is adhered to.
The petition for rehearing is denied and the judgment affirmed.
MR. CHIEF JUSTICE ALLEN and MR. JUSTICE CAMPBELL concur.