The plaintiff appeals from a judgment for nominal damages in his favor. The only finding in the case consists of two short transcripts of testimony which show two rulings of the court to which the plaintiff took exceptions. A transcript of the entire testimony in the case is also made a part of the record. This was improperly made a part of the record, because it does not appear that the court was asked to set aside the verdict as against the evidence, or to correct the finding. The appeal assigns error in the charge, error in the two rulings on evidence above referred to, and error in granting a motion to strike out a paragraph of the complaint. I concur in the opinion of the majority of the court that there was no harmful error in the *Page 599 last-mentioned ruling, and that the exceptions to the charge cannot be considered by us because the charge itself is not before us, and there is no finding showing that the jury were charged as claimed by the plaintiff.
For a similar reason we cannot find error in the rulings on evidence which were excepted to. It does not appear by the record that those rulings were erroneous. The finding does not show that any testimony was offered tending to prove that the plaintiff was deprived of the use of his automobile by the defendant's negligence. There is nothing in the record tending to show that the car was not capable of use after its alleged injury, or that the plaintiff hired another car to replace it. He could not, because of a scratch upon its body or some other slight injury or blemish to the car, refuse to use it, or supply its place with another car and recover damages of the defendant for the loss of the use of his own car or the rental of another. So far as appears the rulings were correct, and must be presumed to be so in the absence of facts in the record showing that they were not so.
The objection to the admission of the evidence offered to show the rental value of a touring car, was upon the ground that the plaintiff's car was a pleasure car from which he derived no profit, and that he did not use his own car after the accident nor try to substitute another for it; and the court sustained the objection. Unless deprived of the use of his car by the defendant, if the car was capable of use, he was bound to use it if he needed to use a car, and evidence to prove the rental value of some other car which he had not used or needed would be immaterial and incompetent. The same is true as regards the offered evidence as to the wages which he paid his chauffeur. The plaintiff could not let his car and chauffeur lie idle and charge the use of *Page 600 the former and the wages of the latter to the defendant, upon the finding in this case.
I dissent from so much of the majority opinion as holds that the rulings excluding this offered testimony were erroneous.