Opinion
14874
May 4, 1939.
Before PLYLER, J., County Court, Greenville, June, 1938. Affirmed.
Action by American Mutual Liability Insurance Company against E.D. Sloan for premiums alleged to be due, wherein the defendant set up a counterclaim. The Court directed a verdict for the plaintiff for the premiums found to be due and reserved its decision as to whether or not defendant was entitled to his counterclaim. From a judgment for the defendant on his counterclaim, the plaintiff appeals.
Order of Judge Plyler follows:
This action was brought by the American Mutual Liability Insurance Company to recover premiums alleged to be due by the defendant, E.D. Sloan, in the sum of Three Thousand Seven Hundred Sixty-five and 31/100 ($3,765.31). The defendant interposed a general denial and, in addition thereto, set up a counterclaim in the sum of Two Thousand Seven Hundred Fifty ($2,750.00) Dollars. At the conclusion of the testimony, both plaintiff and defendant made motions for a directed verdict.
The insurance company in this action is a mutual company and the policy contains a provision which gives each member the benefit of certain dividends. The clause in reference thereto is as follows: "By his acceptance of this policy the insured becomes a member of the company in accordance with the laws of Massachusetts and by-laws of the company from the effective date of the policy, and shall be entitled to such dividends as may be declared by the board of directors; and agrees to pay, in addition to the premium herein provided for, such sums as may be assessed by the board of directors not to exceed in the whole an amount equal and in addition to the premium earned on this policy at its termination."
Counsel for plaintiff, in arguing his motion for directed verdict, raised the question as to whether or not the defendant should have pleaded his claim for credit of twenty per cent. dividend as provided in the insurance policies. Testimony had been taken throughout the trial upon this issue and no point had been raised that it had not been pleaded. Counsel for defendant, while stating that he did not believe it necessary to plead this credit, made a motion to amend the answer so far as to set forth the claim that he was entitled to a credit of twenty per cent. dividend as provided in the policy. There was no dispute between plaintiff and defendant as to the amount due for premiums, with the exception of the twenty per cent. credit for dividends.
After considerable argument, it was agreed that the Court should reserve its decision as to whether or not the answer should be amended and if the answer should be amended the Court would further decide whether or not the defendant should be allowed to submit additional testimony upon the dividend issue. Counsel for both sides agreed that the Court should submit to the jury the sole issue as to whether or not the defendant was entitled to his counterclaim in the sum of Two Thousand Seven Hundred Fifty ($2,750.00) Dollars, and that after this verdict was rendered by the jury the Court would then give final judgment for whatsoever amount should be due by either party. In other words, the Court directed a verdict in favor of the plaintiff for the premiums found to be due and reserved its decision as to whether or not the defendant was entitled to a credit of twenty per cent. and also a credit of Two Thousand Seven Hundred Fifty ($2,750.00) Dollars in case the jury found in his favor. The jury, after due deliberation, rendered a verdict in favor of the defendant, Sloan, in the sum of Two Thousand Seven Hundred Fifty ($2,750.00 Dollars. Counsel for the plaintiff thereupon made a motion for a new trial, and the matter is now before the Court upon that motion, and also for decision as to a final judgment between the parties.
In order to adequately comprehend the issues involved in this case, it was necessary to recite the facts and to refer to certain provisions of the contracts involved.
On December 11, 1935, the defendant, E.D. Sloan, entered into a contract with the County of Greenville for county road improvements consisting of surface treatment on approximately fifty-two (52) miles of highways. This work was financed in part by grants from the United States and the work was to be performed under the Public Works Administration of the Federal Government. The contract was approved by J.L.M. Irby, Acting State Director, Public Works Administration, February 24, 1936. The contract contained the following provisions relative to insurance required to be carried by the contractor:
"Public Liability and Property Damage Insurance.
"The contractor shall take out and maintain during the life of this contract such public liability and property damage insurance as shall protect him and any sub-contractor performing work covered by this contract, from claims for damages for personal injury, including wrongful death, as well as from claims for property damages, which may arise from operations under this contract, whether such operations be by himself or by any sub-contractor or anyone directly or indirectly employed by either of them. The amounts of such insurance shall be as follows:
"`Public Liability Insurance in an amount not less than $10,000.00 for injuries, including wrongful death, to any one person, and, subject to the same limit for each person, in an amount not less than $20,000.00, on account of one accident, and Property Damage Insurance in an amount not less than $2,000.00.
"`Provided, however, that the Owner, with the approval of the State Director, may accept insurance covering a sub-contractor in character and amounts less than the standard requirements set forth under this sub-paragraph (b) where such standard requirements appear excessive because of the character or extent of the work to be performed by such sub-contractor.'"
Before commencing work upon this contract, the defendant and was required to submit proof to Greenville County and to the Public Works Administration that he had insurance as provided in the contract. This insurance was purchased from the Americal Mutual Liability Insurance Company, plaintiff in this action, through its agent, Henry A. Brown, on July 1, 1936, the insurance company issued its certificate of insurance as follows:
"Exhibit 5
"No. 2846 A "Risk No. New
"American Mutual Liability Insurance Co. of Boston
"The American Mutual Liability Insurance Company hereby insures the risk as set forth in the following schedule for a period not exceeding thirty (30) days, subject to the terms, limits of indemnity, and agreements of the policy form specified below.
"A pro rata premium charge will be made for the coverage under this binder unless policies are issued and accepted by the insured.
"American Mutual Liability Insurance Co.
"F.R. Mullaney Charles E. Hodges, Jr. "Secretary. President.
"Schedule"Insured, E.D. Sloan Address, News Building, Greenville, S.C. Plant Location, State of South Carolina. Classification, 5506, 5507. Apprx. Prem. $500.00. Policy Limits of) One Person $20,000.00. Form WC, PL. Pd. liability) One accident $40,000.00. Remarks, Property Damage on Greenville PWA jobs, $2-10,000. Binder Begins July 1st, 1936 Binder Ends August 1st, 1936.
Henry A. Brown, District Manager. New Policy No. Renewal of Policy No."
On August 1, another certificate, in exactly the same language as the above, was issued, extending the insurance to September 1, 1936, as shown by Exhibit 6.
Certificates were also issued by the insurance company to the County Board of Commissioners for Greenville County that the policies had been issued as required by the contract. Some time thereafter, the exact date being undisclosed, the insurance company issued the three insurance policies referred to in the binders above set forth.
The defendant, Sloan, in carrying out the terms of the contract with Greenville County entered into an agreement with E.H. Holliday for the purpose of having stone hauled in connection with the construction of the road. Holliday was the owner of a number of trucks available for this purpose, and the agreement between Sloan and Holliday was that Holliday should be paid so much per hour for each truck, which included the cost of the driver. It was further understood that the driver of each truck should be placed upon Sloan's payroll and paid by Sloan and that Sloan should also carry employer's liability insurance covering each driver, but this expense was also to be charged against the account of Holliday, and would be deducted from the amount due him upon the rate agreed upon.
On or about the 5th day of December, 1936, Roy Walters, driving one of the trucks belonging to E.H. Holliday in connection with the building of the road described in the contract, ran into and killed Robert Carson Shetley, a child about fourteen years of age. The administrator of the estate of Robert Carson Shetley brought suit against Roy Walters, the driver, E.H. Holliday and Douglas C. Holliday, owners of the truck, and E.D. Sloan, the contractor, for damages on account of the death of Shetley. Judgment was recovered by the plaintiff in that action against all defendants, in the sum of Six Thousand Five Hundred ($6,500.00) Dollars. E.H. Holliday paid Four Thousand ($4,000.00) Dollars, of this judgment and E.D. Sloan paid Two Thousand Five Hundred ($2,500.00) Dollars, and the judgment was satisfied.
When suit was brought against the defendant, E.D. Sloan, in the Shetley case, the summons and complaint was forwarded to the American Mutual Liability Insurance Company, with the request that the company come in and defend the case as provided in the insurance policy. The insurance company denied the liability upon the ground that the truck being driven by Roy Walters was in the control of the defendant, Sloan, and refused to defend the case. Sloan employed counsel and paid an attorney's fee of Two Hundred Fifty ($250.00) Dollars, in connection with the defense of that case.
Defendant has paid plaintiff the sum of Three Thousand Forty-eight and 12-100 ($3,048.12) Dollars, premiums on the policies involved in this action, and plaintiff claims there is a balance due of Three Thousand Seven Hundred Sixty-five and 31-100 ($3,765.31) Dollars. Sloan claimed credit for dividends of One Thousand One Hundred Forty-six and 29-100 ($1,146.29) Dollars, which left a balance due for premiums of Two Thousand Six Hundred Twenty-nine and 02-100 Dollars ($2,629.02). He further claimed that credit was due him in the sum of Two Thousand Seven Hundred Fifty ($2,750.00) Dollars, upon the premium account when he paid the judgment and that he had a right to offset this amount against his premium account, and refused to pay the insurance company any amount for additional premiums claimed to be due. The insurance company brought suit upon the premium account and the defendant, Sloan, set up the credit of Two Thousand Seven Hundred Fifty ($2,750.00) Dollars, paid by him for the insurance company on the judgment recovered by Shetley.
There are two questions now before the Court, one, whether or not there was any evidence in the case to sustain the defendant's claim against the insurance company for the Two Thousand Seven Hundred Fifty ($2,750.00) Dollars, paid by him upon the judgment obtained against him in the Shetley case, and, two, whether or not the defendant is entitled to a credit for the twenty per cent. dividend.
(1) The insurance contract between plaintiff and defendant as first issued consisted of the binder certificate and the road contract for the first two months. When the defendant was building the road, those two documents composed the insurance contract between the parties. Under the terms of the road contract, the contractor agreed to furnish, and under the terms of the binder, the insurance company agreed to write an insurance policy in accordance with the requirements of the contract, and as evidence that such a policy had been written, the insurance company issued its certificate as follows:
"American Mutual Liability Insurance Co. "Certificate of Insurance"This is to certify that the American Mutual Liability Insurance Company has issued to E.D. Sloan, Greenville, S.C. the following policies: Workmen's Compensation and Employer's Liability Policy No. W.C. to be numbered, effective on July 1st, 1936, and expiring on July 1st, 1937, Public Policy No. to be numbered. Limits $20-40,000, effective on July 1st, 1936, and expiring on July 1st, 1937, location or work, State of South Carolina.
"If at any time this coverage is cancelled, the American Mutual Liability Insurance Company will make every effort to notify the party to whom this certificate is mailed of such cancellation, but the American Mutual Liability Insurance Company undertakes no responsibility by reason of any failure to do so.
"This certificate issued to County Board of Commissioners, Greenville County, S.C.
"Henry A. Brown "Authorized Representative."
Under the terms of this contract, there could be no question that the contract provided "such public liability and property damage insurance as shall protect him and any sub-contractor performing work for this contractor, for claims for damages for personal injury, including wrongful death, which may arise from operations under this contract, whether such operations be by himself or by any subcontractor." The binder issued by the insurance company refers to "Greenville PWA jobs" indicating knowledge that the insurance was to be written in accordance with the terms of that contract and the certificate was issued to County Board of Commissioners of Greenville County. Mr. Sloan's testimony as to the circumstances under which the policies were issued is as follows:
"Q. Now, Mr. Sloan, when you got ready to go to work and get the contract approved, Mr. Brown had talked to you about the insurance, did you take the matter up with Mr. Brown? A. Yes, sir, I gave the American Mutual my insurance, and I contacted Mr. Brown and told him of this contract with Greenville County, and the requirements for insurance set forth in it, and also requesting a certificate showing the coverage had been given me, to show that I had proper insurance coverage.
"Q. You mean you had to issue the contractors and PWA people certificates that you were covered according to the terms of the contract? A. Yes, sir.
"Q. And you, first, did you explain to Mr. Brown that you had this contract and ask him to cover you on the contract? A. Yes, sir.
"Q. In that connection did he before issuing the policy issue you an insurance certificate to that effect? A. Yes, sir; that is it.
"Q. Mr. Sloan, when he gave you this certificate that you were covered according to the terms of the contract, did he issue the policy at that time, or any other insurance policy? A. No, sir, those certificates were issued because the policy wasn't ready."
Having agreed to issue policies in conformity with the requirements of the road contract, the insurance company will be estopped from asserting as a defense provisions in conflict therewith, or that fact would be at least evidence of waiver of those provisions.
In the case of Mack Manufacturing Co. v. Mass. Bonding Ins. Co., 103 S.C. 55, 67, 87 S.E., 442, the Supreme Court holds that the bond and the contract must be construed together. The Court says:
"The specifications refer expressly to the obligations of the contract, and to a bond to be made for the faithful performance of the contract.
"One of the express terms of the contract is that Bowe Page shall furnish at their own cost all the material necessary to do the work. And this carried the implied promise that material shall be paid for by Bowe Page.
"The bond refers to the contract, to the proposal, and to the specifications, all identified by the signatures of the principals, and all expressly made a part of the bond.
"It recites that Bowe Page had assumed certain obligations to the city with respect to the construction of pavements.
"One of their express obligations, as before stated, was to furnish at their own expense all the material necessary to do the work. And that carried as before stated the implied promise by Bowe Page to pay the materialmen.
"The effect of such cross-reference by each paper to the others, both expressly and impliedly makes them synchronous, and constitutes them one transaction. There is therefore no room to conclude that the terms of the bond are broader than the parties intended it to be, or broader than the transaction it was executed to indemnify made it necessary to be."
This case has been followed by our Supreme Court in numerous cases. See also Standard Oil Co. v. Powell Paving Contracting, 139 S.C. 411, 442, 138 S.E., 184, National Loan Exchange Bank v. Gustafson, 157 S.C. 221, 154 S.E., 167. It is quite clear, therefore, that the insurance company is liable for the judgment recovered in this action under the terms of its original contract.
If it should be held, however, that the insurance policy must be construed without reference to the contract and that the plaintiff is only bound by the terms of its later insurance contract issued approximately two months after the work had been in progress, the Court was compelled to submit the evidence to the jury upon the question raised by the pleadings.
The first paragraph of the contractor's public liability policy provides:
"American Mutual Liability Insurance Company of Boston "(Herein called the Company)"Hereby Agrees with the insured named in the declarations attached hereto and made a part hereof and which by the acceptance of this policy the insured warrants to be true, as respects bodily injuries, including resulting deaths, sustained by persons, other than employees of the insured, through accidents occurring during the policy period as expressed in Item 2 of the declarations, in the performance of the operations carried on by the insured at the locations and in the business, as described in the declarations, as follows:
"To Settle or Defend each claim and suit, even though wholly groundless, brought against the insured to enforce the payment of damages for such injury or death, including consequential injuries, and as respects such suit, To Pay the entire premiums on attachment, removal, and appeal bonds, costs taxed against the insured, and interest accruing on the entire judgment up to the date of payment by the company of its share of the judgment, and To Pay the expense incurred by the insured for such immediate medical or surgical relief of any injury covered by the policy as shall be imperative at the time the accident occurs.
"To Pay, within the limits of the Company's liability as expressed in Item 3 of the declarations, judgments rendered against the insured for damages covered by the Policy. If there be more than one named in the declarations as insured the said limits of liability shall be available to them jointly but not to more than one of them severally. The insolvency, or bankruptcy of the insured shall not relieve the Company from the payment of a judgment as respects any such injury sustained before such bankruptcy or insolvency as would have been payable but for such insolvency or bankruptcy.
"To Serve the insured by suggesting such changes and improvements of its machinery appliance and methods as may operate to reduce the number and severity of accidents."
The plaintiff contends that Shetley was not killed "in the performance of the operations carried on by the insured at the locations and in the business as described in the declarations." His claim is that Shetley was killed in operations carried on solely by T.H. Holliday, and without reference to the fact that Holliday was helping to build the road. Holliday was employed by the defendant, Sloan, in connection with the construction of the road at the locations and in the business referred to in the insurance policy, and it would be a most unreasonable construction of the policy to hold that he was not so engaged. In the trial of the case of Shetley v. Sloan, Sloan was held liable under these same circumstances.
Under the terms of the contract, the insurance company also agreed to settle or defend each claim and suit, even though wholly groundless, brought against the insured to enforce the payment of damages for death. This the company has failed to do.
The insurance company further seeks to avoid liability upon the ground that the death of Shetley was caused by a motor vehicle in the control of the insured. While it is true that the driver of the motor vehicle was on the payroll of the defendant and insurance premiums were paid covering him as such employee, yet the motor vehicle was in the control of Holliday. Under the agreement, Holliday was to be paid so much per hour to operate his trucks. Holliday therefore had control of the vehicle. At most, that was a question for the jury. While the fact that the driver was on the payroll of Sloan may be evidence that the driver was Sloan's employee, yet that fact does not prove as a matter of law that the truck was under the control of Sloan. These were issues of fact for the jury, and the jury has decided the fact against the insurance company.
There was evidence at the trial that the insurance company shifted its contention from that first made, relative to the control of the vehicle, to the claim that Shetley's death was caused by a person whose remuneration was not included as a part of the remuneration subject to premium computation. The evidence shows that the auditor of the insurance company audited the payrolls of the defendant, Sloan, each quarter, made inquiry as to the relationship existing when he thought necessary, and based upon that audit he sent in his bill for the amount of premiums due. The driver of the truck was on this payroll and premiums were paid for him and he was undoubtedly included in the premium computation. This was also a question of fact to be decided by the jury, and has been decided adversely to the plaintiff's claim.
(2) The only remaining question to be decided is whether or not the defendant is entitled to credit for twenty per cent. Divided as provided in the policy. The Court decided to allow the amendment so as to permit the defendant to plead that he was entitled to twenty per cent divided as a deduction from the amount of premiums chargeable against him. Counsel for plaintiff was notified that having allowed this amendment, the Court would allow any further testimony plaintiff desired to submit upon this issue, and the case was held open for ten days to give plaintiff's counsel an opportunity to submit further evidence. In response to the Court's decision to this effect, the Court received a letter from plaintiff's counsel as follows: "I am instructed by the home counsel of plaintiff not to introduce additional testimony, but to let the case rest on the record as it is now made up."
The only clause in the insurance policy relative to dividends is paragraph L, entitled "Dividends and Assessments", which reads as follows: "By his acceptance of this policy the insured becomes a member of the Company in accordance with the laws of Massachusetts and by-laws of the Company from the effective date of the policy, and shall be entitled to such dividends as may be declared by the board of directors; and agrees to pay, in addition to the premium herein provided for, such sums as may be assessed by the board of directors not to exceed in the whole an amount equal and in addition to the premium earned on this policy at its termination."
When the insurance agent sold the insurance policies to the defendant, Sloan, he submitted a written memorandum showing how the twenty per cent. dividend deduction was allowed. That memorandum, defendant's Exhibit No. 2, is as follows:
"Quotations on equipment E.D. Sloan $10,000 — $20, — Pub. Lia. — $5,000 Prop Damage Gross Price Net — Less Usual 20% dividend Ace 1 1-2 ton truck ea .................. 33.60 26.88 Ace 2 1-2 ton truck ea .................. 55.94 44.75 1934 Buick ea .................. 26.02 20.82 Chev. Fords ea .................. 23.52 18.82 Total Cost 10 — 1 1-2 ton trucks ............ 336.00 268.50 7 — 2 1-2 ton trucks ............ 391.58 313.25 1 — Buick ....................... 26.02 20.82 3 — Chev. Fords ............... 70.56 56.46 ______________________ 824.16 659.33 American Mutual Lia. Ins. Co. 1203 Woodside Bldg. — Phone 3816 Henry A. BrownWe have paid a dividend of 20% or more since organization in 1887."
A.D. Sneddon, the first witness for the plaintiff relative to dividend, testified as follows:
"A. I believe they were declared June 1, 1938. I say: I believe.
"Q. Mr. Sneddon, when a dividend is declared by your company everybody who pays premiums into that company get twenty per cent. back, don't they? A. That is my recollection.
"Q. No doubt, — Why do you hesitate? A. I am only the auditor.
"Q. But you know a good deal about the business of the company if you are their auditor? A. Yes, sir.
"Q. As a matter of fact, that is one of the things that they put to the front to seal the policies? A. That is right. But you will also understand that I am on the road all the time, and not in the office."
Mr. Henry A. Brown testified as follows:
"Q. You were the Production Manager? A. Yes, sir.
"Q. They have got you as the man to produce business?
A. That is the idea of it.
"Q. You put up here when you were selling Mr. Sloan this insurance here you quoted him the premium less the usual twenty per cent. dividends? A. That is right.
"Q. You impressed that on him? A. Yes, sir, I always do that.
"Q. And the dividends of twenty per cent. have been declared every year since organization in 1887? A. Yes, sir, fifty-one years.
"Q. It has never been less than twenty per cent.? A. We declare one each month; we have declared about six hundred up to now.
"Q. No doubt this twenty per cent. dividend has been declared during the period of his policy? A. Yes, sir."
Other witnesses testified also that the regular twenty per cent. dividend had been declared and there is some correspondence in the record showing that the defendant is entitled to twenty per cent. dividend.
The real contention of the plaintiff is that before the defendant, Sloan, would be entitled to the twenty per cent. dividend, it is necessary for him to pay the full amount of the premiums due and then receive back the dividend declared by the Board of Directors, and the company claims that when it disputed the liability under the insurance policy, the defendant had no right to withhold the amount he paid out in behalf of the company and claim that as a credit on premium payment. The Court cannot agree with his contention. The defendant, Sloan, has not only paid all of the premiums due by him to the company, but the evidence shows that he has paid One Hundred Twenty and 98-100 ($120.98) Dollars more than he owes plaintiff, if he is given credit for the amount paid on behalf of plaintiff in the Shetley case. This he is entitled to.
In order to decide whether or not the defendant, Sloan, was entitled to credit for the twenty per cent. dividend, it was necessary to have the jury first pass upon the question as to whether or not Sloan was entitled to judgment against the insurance company for the Two Thousand Seven Hundred Fifty ($2,750.00) Dollars. The jury having decided that issue in his favor, the Court holds that this was a payment made by Sloan in behalf of the insurance company and that the company did not have the legal right to require him to pay it more than he was due. Having paid all the premiums due by him to the company under the provisions of the contract, he is entitled to credit for the twenty per cent. dividend. After giving him credit for the dividend and the amount due him upon his counterclaim, it appears that Sloan is entitled to judgment against the insurance company in the sum of One Hundred Twenty and 98-100 ($120.98) Dollars.
Now, therefore, it is ordered, that the motion for a new trial be, and the same is, hereby overruled and judgment is rendered in favor of the defendant, Sloan, in the sum of One Hundred Twenty and 98-100 ($120.98) Dollars, against the plaintiff, American Mutual Liability Insurance Company, and for costs in this action.
Messrs. James A. Herbert and Wilton H. Earle, for appellant, cite: Employee under terms of policy: 104 S.E., 82; 85 A.L.R., 784; 26 F.2d 574; 278 U.S. 630; 196 S.E., 815; 12 S.E., 411; 141 S.E., 506; 120 N.E., 350; 178 P., 822; 44 N.E., 218; 194 S.E., 479; 196 S.E., 815; 125 S.E., 123. Liability of insurer for acts of independent contractors or their employees: 36 C.J., 1056; 29 N.E., 529; 173 P., 1006; 116 N.E., 1080. Duty of insurer to defend suit: 153 N.Y.S., 1148; 167 N.E., 884; 180 S.C. 459; 186 S.E., 399; 174 P., 110; 188 S.E., 581; 183 N.W., 656; 139 S.E., 513; 163 S.C. 229; 161 S.E., 491. Construction of contract: 99 S.W.2d 984; 180 S.C. 72; 185 S.E., 47; 233 S.W. 78; 2 N.E.2d 212; 96 U.S. 547. Possession of policy: 91 U.S. 45; 208 S.W. 124; 87 F., 63; 176 N.C. 652. As to oral agreement to issue insurance: 89 F.2d 194; 41 N.W., 373; 94 U.S. 621. Reformation of contract: 182 S.C. 384; 189 S.E., 657; 70 S.E., 1086; 209 N.W., 104; 257 F., 418; 233 S.W. 78; 204 N.W., 159.
Messrs. Wyche Burgess, for respondent, cite: Construction of contract: 103 S.C. 67; 139 S.C. 442; 157 S.C. 221; 135 S.C. 89; 133 S.E., 215; 161 S.C. 314; 159 S.E., 635; 219 N.W., 49; 123 So., 162; 170 S.C. 151; 169 S.E., 837.
May 4, 1939. The opinion of the Court was delivered by
An inspection of the record in this case discloses that the pleadings are voluminous; the examination and cross examination of witnesses were long drawn out, motions and the arguments of motions were extended beyond the usual, and the exhibits are many. The case was well argued on Circuit, and has been presented on appeal fully and ably.
Judge Plyler, who heard the case in the County Court for Greenville County, evidently gave careful attention to the case when before him on trial, and he has rendered a decision, by his decree, which evinces careful consideration, and comprehension of all the issues involved. It would be a work of supererogation to add to it, and it would detract from its strength to take anything from it. This Court is fully satisfied with it.
Let it be reported.
Judgment affirmed.
MR. CHIEF JUSTICE STABLER, MESSRS. JUSTICES BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE L. D. LIDE concur.
MR. JUSTICE CARTER did not participate on account of illness.