dissenting. I concur in Division 1 of the opinion, that any error in the charges given and therein considered was harmless error for the sole reason that the jury verdict necessarily found in favor of the plaintiff on these issues, since they found that neither the appellant nor the appellee was entitled to recover. In my opinion, we cannot find these errors, if error, harmless by "assuming the verdict to be in favor of the plain*282tiff on these issues. . .” I concur in Divisions 2,3,4,5 and 7 of the opinion.
I must dissent, however, from the ruling of harmless error in Division 6 of the opinion. The answer given was not responsive to the question, although no objection was made on this ground. It was further purely a conclusion of the witness relating to the weight and credit to be given the statements of the person referred to in the question. This is a jury matter, not a matter for a witness to determine. His answer was equivalent to the expression of opinion by the witness that he thought that the defendant was lying under the circumstances. This was harmful error and is sufficient to authorize the granting of a new trial, and, for this reason, we should hold that the trial court erred in overruling the motion for new trial.
Failure to object to the question, the answer not being responsive thereto, would not constitute a waiver of the right to object to the answer, and this fact has no bearing on the question of the admissibility of the answer. The fact that other testimony of this same witness showed this witness had an opinion that the fire which burned the dwelling had been diliberately set, could not, and did not, make the error harmless, where the other evidence was not subject to objection and did not relate to the same subject matter. The plaintiff had testified that the value of the dwelling was in excess of $23,000. The jury found against him on this issue of value. We, therefore, cannot say that the admission of this impeaching testimony was, as a matter of law, harmless.
In my opinion, the judgment should be reversed.