Opinion
No. 18,859.
Decided March 9, 1959.
Original proceeding in mandamus to require trial court to rule in pre-trial discovery proceedings, that defendants must answer questions relating to insurance coverage. Rule to show cause issued.
Rule Made Absolute.
1. COURTS — Supreme Court — Jurisdiction — Original Writs. Under Art. VI, Sec. 3 of the state constitution, the Supreme Court is given the power to issue writs of mandamus and other original and remedial writs.
2. TRIAL — Pre-Trial Procedure — Discovery — Rules. Application for an original writ of mandamus or certiorari in the Supreme Court is the only procedure by which to test the validity of a trial court's ruling where the question involved, if permitted to await final judgment, would become moot.
3. PRACTICE AND PROCEDURE — Pre-Trial Proceedings — Denial of Right — How Reviewed. The denial of an asserted right in pretrial proceedings, not otherwise reviewable, may be determined by means of an original proceeding in certiorari in the Supreme Court.
4. Discovery — Relevancy — Rules. In an action for damages resulting from an automobile collision, inquiries in pre-trial discovery proceedings concerning the existence of liability insurance and the extent of coverage, are "relevant to the subject matter involved in the pending action" under Rule 26 (b), R.C.P. Colo.
5. Rules — Discovery — Relevancy. The term "relevant to the subject matter involved in the pending action," includes inquiries as to the existence of liability insurance and the policy limits of such insurance.
6. Rules — Words and Phrases — Relevant. The term "relevant" as used in Rule 26 (b), R.C.P. Colo., is not limited to matter which is admissible in evidence at the trial, or which will properly lead to admissible evidence, but includes all matters which are relevant to the subject matter of the action.
7. Rules — Discovery — Insurance Coverage — Relevancy. Questions may be propounded in pre-trial depositions for the purpose of eliciting information as to the existence of liability insurance and the policy limits of such insurance.
8. COURTS — Supreme Court — Original Writs — Authority. Where a rule to show cause issued by the Supreme Court, directed to the district court, is based upon complainant's request that such court be required to "expunge from the record" its previous order, and the order of the Supreme Court was that the rule be made absolute and the trial court ordered to rescind and revoke its former order and require defendants to supply the requested information, such order is appropriate to such proceeding, the Supreme Court having the authority to direct the trial court to comply with its ruling.
Original Proceeding.
Messrs. PETERSEN, EVENSEN EVANS, for complainants.
Messrs. PHELPS, FONDA HAYS, for respondents.
Mr. KENNETH M. WORMWOOD, Mr. SAMUEL M. JANUARY, Mr. WILLIAM K. RIS, Mr. WALTER A. STEELE, Mr. MYRON H. BURNETT, Amici curiae.
THIS is an original proceeding under Rule 106 in which the plaintiff seeks an order directing the District Court of Pueblo County to require the defendants to furnish information pertaining to liability insurance. The matter arose during the taking of the defendants' depositions. This was brought to the attention of the District Court by motion and that court refused to grant the requested relief.
The complaint contains the following facts: That there is now pending in the Pueblo District Court a certain suit in which the plaintiffs here are plaintiffs and George M. and Grace Elaine Moore are defendants; that in the course of taking the depositions of the defendants, questions were propounded relative to the existence of liability insurance and the policy limits thereof; that the defendants refused to answer the questions; that thereupon a motion was filed to compel the disclosure of the liability limits of the insurance policy which the defendants admittedly had, and the trial court denied this motion. It is alleged that the liability policy is subject to the Safety Responsibility Law of Colorado; that this statute was enacted for the protection of the public; and that following the collision, the provisions of the insurance policy became active under C.R.S '53, 13-7-23 (a), and the plaintiffs have a right to discover the information as bearing on the extent of trial preparation and so as to obtain full benefit to the existence of the insurance coverage. It is also alleged that the matter is relevant within the terms of Rule 26 (b), Rules of Civil Procedure.
Hearing on the issues raised by the motion was had in the district court and it held:
"That the discovery in question was sought prior to the trial and judgment, and plaintiffs desired this information for the purpose of using it in an attempted compromise of the action and not for the purpose of satisfying a judgment already obtained."
Following the filing of the complaint herein, we issued an order directed to the trial court to show cause why the requested relief should not be granted. Within the time, defendants filed their motion to dismiss the complaint. This motion questioned the validity and propriety of mandamus as a remedy. The averments of the motion are that the question is one which called for the exercise of discretion by the District Court, and for that reason its action is not subject to review by means of this extraordinary remedy.
Although the case purports to arise under Rule 106, it is our view that this rule does not apply to original proceedings. The Constitution of Colorado, Article VI, Section 3, declares in referring to this Court that "It shall have power to issue writs of mandamus, quo warranto certiorari, injunction and other original and remedial writs with authority to hear and determine the same. * * *"
In Leonhart v. District Court, 138 Colo. 1, 329 P.2d 781, we said:
"Our authority to entertain remedial writs is conferred by the constitution, and 'is not dependent upon, or governed by the statute' or rules of civil procedure on the subject. People ex rel. Lindsley v. District Court, 30 Colo. 488, 71 P. 388. 'Those writs, however, are the common law writs * * *' Bulger v. People, 61 Colo. 187, 156 P. 800, 803."
We shall treat this complaint as if it were a petition seeking the issuance of a writ of mandamus or certiorari as the same existed at common law. Although the procedure question here presented was determined when the rule to show cause issued, we shall comment on it (since defendant has filed a motion to dismiss which raises the issue).
1. Validity of the Procedure. We have concluded that the matter should be determined on its merits and that the motion to dismiss should be denied. In our view, the procedure which has been followed by the plaintiffs is the only procedure which would permit them to test the validity of the trial judge's ruling. Had they permitted this question to await final judgment it would then have become moot, because concededly the testimony in question would not have been admissible at the trial with the result that the final judgment of the trial court would not have been affected by the instant ruling. Since the order is interlocutory and thus not reviewable by writ of error, there is in truth no adequate remedy available to the plaintiffs.
Defendants have argued that since the substantive issue is one of first impression in Colorado and since there is a division of viewpoint in other jurisdictions, the trial court exercised a discretion in selecting one viewpoint and in rejecting the other. This, it is argued, cannot be reviewed by mandamus. This argument does not take into account that the ruling of the trial court in pre-trial matters would as a general rule become final and the aggrieved party would be helpless to obtain relief by writ of error. The situation is analogous to that which was presented to this Court in Town of Glendale v. City and County of Denver, 137 Colo. 188, 322 P.2d 1053, wherein it was held in an eminent domain proceeding that writ of error would not issue to review an interlocutory order granting immediate temporary possession. The Court cited Swift v. Smith, 119 Colo. 126, 201 P.2d 609, and said:
"The proper proceeding for relief from an interlocutory order as stated in Swift v. Smith, supra is by certiorari. Later in Patashnik v. Public Service Company of Colorado, 126 Colo. 98, 247 P.2d 137, 138, this court, we think intended to and did in fact remove all confusion as to procedure by carefully outlining the proper remedy as follows:
"* * * within the period of stay of execution granted by the trial court, the owners, not having the right of review of said interlocutory order upon writ of error, filed original action by way of certiorari in this court, alleging that otherwise they were without remedy whatsoever to protect their property from seizure under the order of the district court, which they contend was without lawful authority. * * *' "The court then went on to say, 126 Colo. at page 101, 247 P.2d at page 138:
"'That a writ of error to review an interlocutory order of the district court will not lie is conceded. That an original proceeding in the nature of certiorari under Rule 106, R.C.P. Colo., when directed to an endangered, fundamentally substantive and substantial right, is maintainable and recognized as a proper remedy is settled. Swift v. Smith, 119 Colo. 126, 201 P.2d 609.'"
We hold that the denial of a right such as that here asserted (in pre-trial proceedings), which action is not reviewable otherwise, may be determined by means of an original proceeding in certiorari in this court.
We conclude that the complaint should be entertained and that this question should be determined on its merits.
2. Scope of Discovery. In order to decide whether inquiring into the existence and extent of liability insurance is proper in pre-trial depositions, we must consider Rule 26 (b), R.C.P Colo., which provides in pertinent part:
"* * * the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party. * * *. It is not grounds for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence."
The specific question for determination is whether the mentioned inquiry is " relevant to the subject matter involved in the pending action" within the meaning of this rule, or whether relevancy as here used is restricted to evidence which is admissible at the trial or testimony which is reasonably calculated to lead to the discovery of admissible evidence.
As bearing on this question, our attention has been directed to the Automobile Safety Responsibility Law, C.R.S. '53, 13-7-1, et seq., and specifically to Sections 13-7-19, 22 and 23. In general, the purpose of the provisions cited is to foster and promote insurance coverage or, in the event of accident, a bond to insure financial responsibility. Its ultimate object is to provide compensation for innocent persons who might be injured through faulty operation of motor vehicles. Toward these ends, it provides inter alia that (1) the insurance carrier's liability shall become absolute whenever loss or damage covered by the policy occurs: (2) that attempted satisfaction of final judgment by insured shall not be a condition precedent to the obligation of carrier to make payment: (3) that fraud, misrepresentation or other act of insured in obtaining the policy shall not constitute a defense available to the insuror against a judgment creditor: and (4) limitations upon the cancellation of a policy. See 13-7-23 supra.
It is often said that the injured person is a third party beneficiary in these insurance contracts. Cf. Ewing v. Colo. Farm Mutual Casualty Co., 133 Colo. 447, 296 P.2d 1040. See also Superior Insurance Co. v. Superior Court, 37 Cal. 2d 749, 235 P.2d 833, and State ex rel. Allen v. Second Judicial Court, 245 P.2d 1003 (Nev. 1952), holding that policies issued pursuant to acts similar to that here in question are enforcible by injured parties.
In People v. Fisher, 12 Ill.2d 231, 145 N.E.2d 588, it was said:
"Thus, under our statutes, as in California, liability insurance is not merely a private matter for the sole knowledge of the carrier and the insured, but is also for the benefit of persons injured by the negligent operation of insured's motor vehicle."
In the light of our Safety Responsibility Act and taking into account its objects and purposes, we are of the opinion that the inquiries concerning the existence of liability insurance and extent of coverage are "relevant to the subject matter involved in the pending action."
The question is one of first impression in this state and we have looked to the decisions of other jurisdictions rendered under acts or rules substantially similar to the Federal Rules of Civil Procedure and our Rules of Civil Procedure (which are patterned after the Federal Rules).
In some of these cases it is held that discovery is permissible only in respect to matters which constitute admissible evidence. In this group is Bean v. Best 76 S.D. 462, 80 N.W.2d 565, wherein it was held that the plaintiff was not entitled to an order compelling production of an insurance policy for inspection and copying. Under South Dakota's Rule 34 the Court held that since the policy was not admissible in evidence, discovery would not be allowed. The Court noted that insurance did not concern (directly) the action which was then pending, rather a future action against the insuror which was contemplated. It is to be noted, however, that the South Dakota rule had not been amended in accordance with the amendments which liberalized the Federal Rules and the decision seems to be predicated upon this fact.
The case of Goheen v. Goheen, 9 N.J. Misc. 507, 154 Atl. 393, also denied the discovery and did so on the ground that "the interrogatories propounded are not material to the issue and are not relevant and competent evidence for the plaintiff." These two decisions are contrary to the express terms of our Amended Rule 26 (b) which expressly provides that the scope of examination is not limited to testimony which will be admissible in the trial.
Rule 26 (b) was amended August 18, 1951, to conform to the 1946 modification of the Federal Rule which is its counterpart. On that occasion the final sentence which provides: "It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence," was added.
As we view it, the purpose of this amendment was not to limit the scope of this examination, but rather to enlarge it by eliminating the objection that the testimony sought would not be admissible at the trial. We do not believe that it was intended to limit the clause "relevant to the subject matter involved in the pending action," so that it embraces only that "testimony * * * calculated to lead to the discovery of admissible evidence." Our conclusion is therefore based upon the pre amendment Rule 26 (b).
In our view, the term "relevant to the subject matter involved in the pending action" includes inquiries as to the existence of liability insurance and the policy limits of such insurance. This is the construction which has been adopted in the following cases: People v. Fisher, supra (Ill. 1957); Maddox v. Grauman (Ky.) 265 S.W.2d 939, 41 A.L.R.2d 964; Brackett v. Woodall Food Products. 12 F.R.D. 4: Orgel v. McCurdy. 8 F.R.D 585 (S.D.N.Y); Demaree v. Superior Court, 10 Cal. 2d 99, 73 P.2d 605 (followed by Superior Insurance Co. v. Superior Court, 37 Cal. 2d 749, 235 P.2d 833). In the case of Layton v. Cregan Mallory Co., 263 Mich. 30, 248 N.W. 539, it was held that existence of insurance coverage was a proper discovery inquiry where ownership of the vehicle was in issue. This case predated the liberalized discovery provisions.
The most fully considered and persuasive decision among those cited, involving as it does a rule identical with ours (except as to the liberalizing sentence of 1951) and a safety responsibility statute similar to that which is in force in this state, is that of People v. Fisher, supra. We quote from that opinion:
"Unlike other assets, a liability insurance policy exists for the single purpose of satisfying the liability that it covers. It has no other function and no other value. Litigation is a practical business. The litigant sues to recover money and is not interested in a paper judgment that cannot be collected. The presence or absence of liability insurance is frequently the controlling factor in determining the manner in which a case is prepared for trial. That there will be actual rather than nominal recovery conditions every aspect of preparation for the trial of these cases — investigators, doctors, photographers and even the taking of depositions. Ordinarily a plaintiff has many sources of inquiry by means of which he can appraise the likelihood that the judgment he seems will be enforceable. In the case of an insurance policy, however, all the customary channels are cut off. Even if he knows the identity of the insurance company and may know its financial standing, it does not help him, for the company is responsible only within the limits of the policy it has issued.
"In determining whether liability insurance is discoverable by pretrial interrogatories, we must also take cognizance of the role of insurance companies in such litigation against their insured, for as Justice Holmes noted, 'Judges need not be more naive than other men. Inasmuch as the insurance company is virtually substituted as a party ( Maddox v. Grauman, Ky., 265 S.W.2d 939; dissent in Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649, 658), as far as the investigation and conduct of the defense is concerned, it would seem to be relevant, if not indispensable, that plaintiff's attorney have knowledge of the existence of insurance in order to prepare for the case he has to meet and be apprised of his real adversary. Such knowledge, furthermore, would also lead to more purposeful discussions of settlement, and thereby effectuate the dispatch of court business. This aspect is most significant in terms of effective judicial administration in coping with today's congested dockets which are largely attributable to the increasing volume of personal injury litigation.
"On the basis of this analysis, it is our opinion that discovery interrogatories respecting the existence and amount of defendant's insurance may be deemed to be 'relat[ed] to the merits of the matter in litigation,' as provided in Civil Practice Rules 101.19-11 and 101.19-4, since they apprise injured plaintiffs of rights arising out of the accident, otherwise unknown, and which the public policy of this State protects, give counsel a realistic appraisal of his adversary and of the case he must prepare for, and afford a sounder basis for the settlement of disputes. We believe that such a construction is in accordance with the intention of the framers of the amended Rules to give a broader scope to the practice of discovery and thereby enable attorneys to better prepare and evaluate their cases."
In Orgel v. McCurdy, supra, the U.S. District Court for the Southern District of New York commented upon the issue presented as follows:
"The information sought by an examination must be relevant to the subject matter of the pending action Stevenson v. Melady, D.C.S.D.N.Y. 1940. 1 F.R.D. 329. Under Federal Rules of Civil Procedure, rule 26 (b), 28 U.S.C.A., it is not necessary to establish the admissibility of the testimony; it is sufficient that the inquiry be made as to matters generally bearing on the issue and relevant thereto. Mackerer v. New York Central R. Co., D.C.E.D.N.Y 1940, 1 F.R.D. 408. See also Engl v. Aetna Life Ins. Co., 2 Cir., 1943, 139 F.2d 469, 472:
"'For by the extensive discovery practice of the new rules, examination before trial may be had not merely for the purpose of producing evidence to be used at the trial, but also for discovery of evidence, indeed, for leads as to where evidence may be located.'"
In Brackett v. Woodall Food Products, supra, the opinion of the U.S. District Court for the Eastern District of Tennessee in upholding the right of plaintiff to production of the liability insurance policy under Rule 34 pointed out that the modern trend of legislation is in the direction requiring operators of motor vehicles to maintain liability insurance for the protection of third persons and that this has been necessitated by the tremendous increase of the number of such vehicles and the irresponsibility problem. The Court said:
"From the tenor and purpose of such legislation it is obvious that such insurance policies are definitely relevant to the subject matter of pending actions growing out of accidents covered by such policies, especially in view of the fact that this legislation apparently would require the defendant to disclose to the state authority the information concerning the insurance which plaintiffs seek, and this would be a matter of public record.
"* * * The Court finds that it is material to the plaintiffs, in the preparation of their cases for trial, that they be given an opportunity to inspect and, if desired, to copy or photograph the liability insurance policy as the policy provisions may afford the plaintiffs rights of which they would otherwise not be able to avail themselves."
"Also in Maddox v. Grauman, supra, the same viewpoint obtained. Again the Court pointed out that the liability insurance policy is for the benefit of injured persons in that it provides security for the satisfaction of any judgment obtained. The Court then concluded:
"If the insurance question is relevant to the subject matter after the plaintiff prevails, why is it not relevant while the action pends? We believe it is. An insurance contract is no longer a secret, private, confidential arrangement between the insurance carrier and the individual but it is an agreement that embraces those whose person or property may be injured by the negligent act of the insured. We conclude the answers to the propounded questions are relevant to the subject matter of the litigation and within the spirit and meaning of CR 26.02. See Brackett v. Woodall Food Products, Inc., D.C., 12 F.D.R. 4; Orgel v. McCurdy, D.C., 8 F.R.D. 585; Superior Insurance Company v. Superior Court in and for Los Angeles County, 37 Cal. 2d 749, 235 P.2d 833."
The thread which runs through all of these decisions is that the term "relevant" is not limited to matter which is admissible in evidence at the trial or which will properly lead to admissible evidence, but includes all of those things which are relevant to the subject matter of the action. These cases hold that the relevancy of insurance coverage stems from the fact that the carrier defends the action and must respond in damages after a judgment is obtained.
It is also conceivable that although a defendant may have liability insurance he may fail to properly notify his insurance carrier. This neglect would seriously prejudice the plaintiff under the Safety Responsibility law. Thus it is in the interest of the plaintiff to ascertain all of the facts pertaining to liability insurance coverage, including whether there has been notice to the carrier.
That the term "relevant" must be given a liberal interpretation is indicated by Moore in his work on Federal Practice. 26.14 (Pocket Supplement attached to Vol 2). He states that the rules contemplate that a deponent shall answer all questions except those to which he objects on the ground of privilege and that objections based on admissibility are to be saved until the actual trial.
The cases which are considered above are included in a note which is reported in 41 ALR 2d 968. This follows a report of Maddox v. Grauman, supra.
As a result of our study of the rules, the statute and the decisions of other jurisdictions, it is our opinion that the holding which allows questions to be propounded in pre-trial depositions for the purpose of eliciting information as to the existence of liability insurance and the policy limits of such liability insurance is the better rule, and the one which is more in accord with the object, purpose and philosophy of the Rules of Civil Procedure. This object and purpose is served by holding that the scope of examination is broad. This will have a tendency to eliminate secrets, mysteries and surprises and should promote disposition of cases without trial and substantially just results in those cases which are tried.
Therefore, we conclude that the rule to show cause heretofore issued should be made absolute, and it is so ordered.
MR. JUSTICE FRANTZ specially concurring, MR. CHIEF JUSTICE KNAUSS, MR. JUSTICE SUTTON and MR. JUSTICE HALL dissenting.
On rehearing:
The defendants and amici curiae have raised constitutional questions in their briefs on rehearing. Defendants contend that the interpretation of Rule 26 (b) in the original opinion in this case constitutes a violation of Sec. 25, Article II of the Constitution of Colorado and of Sec. 1 of the Fourteenth Amendment to the Constitution of the United States, both of which prohibit deprivation of life, liberty or property without due process of law. The contention of defendants on this point is summarized in their brief as follows:
"To require disclosure, would deprive a defendant to a large extent of the value of that property and to deprive him of a right of 'liberty' of which the sovereign may not deprive the citizen without due process of law. In respect to the deprivation of property, a policy of insurance that must be disclosed is not as valuable as is a policy, the existence of which need not be disclosed. This has been brought out wherein it was shown that leverage may be exerted upon the insured Defendants and his insurance company to effect a higher settlement."
Amici curiae, eminent attorneys, who according to their statement, represent insurance companies which issue in excess of 50% of all liability policies written in Colorado, have also raised a number of constitutional questions. They argue that there has been a violation of due process, state and federal; equal protection of the laws as guaranteed by the Fourteenth Amendment to the Federal Constitution; privileges and immunities in violation of the Fourteenth Amendment and of Article V. Sec. 25 of the Colorado Constitution; searches and seizures in violation of the Fourth Amendment of the Federal Constitution and Sec. 7, Article II of the Colorado Constitution. They finally argue that the ruling constitutes invasion by the judiciary of the province of the Legislature.
We have carefully examined the arguments and authorities set forth in the briefs and have considered the oral arguments of counsel which were offered at the hearing which was extended to all of counsel, including amici curiae, and we are of the opinion that all of these contentions are without merit. It seems to us doubtful in the extreme that the Supreme Court of the United States would conclude that this Court's construction of its own rule constitutes a violation of the provisions of the Constitution of the United States. Furthermore, these arguments do not, in our opinion, disclose any violations of the constitutional rights of either the insured or the insuror in the case at bar or any rights of other insurors not parties to this action.
We wish to point out, however, that although the ruling on these constitutional questions is on rehearing, the respondents raised the questions at the earliest possible time and there should not be a refusal to consider them based upon the fact that the determinations first appear on rehearing. The reason for this is that our original opinion was issued following a notice to respondents to show cause. Their response consisted, through no fault of theirs, of a motion to dismiss the complaint or petition. The respondents had anticipated filing an answer following disposition of their motion to dismiss (if it were denied). We announced our first opinion in the belief that the defendants had elected to stand on the motion to dismiss. As a result of this confusion, a hearing on the merits has been extended to the respondents. This has consisted of filing of briefs and the submission of oral arguments. All of this followed the granting of respondents' motion for rehearing.
The original opinion mistakenly stated that the defendants herein had refused to answer questions relative to "existence of liability insurance." The record indicates that the defendants refused to divulge the limits of their liability insurance policy. This was the only issue here presented. Defendants admitted the existence of liability insurance.
Some additional comments are indicated for the purpose of procedural clarification. In the opinion we treated the complaint herein as a petition seeking a writ of certiorari. The rule to show cause was made absolute. However, the records of this Court show that the following order was issued:
"On consideration of the pleadings and briefs herein, it is hereby ordered, adjudged and decreed that the rule to show cause heretofore and on, to-wit: — the sixth day of November. A.D. 1958 issued herein be, and it hereby is made absolute.
"It is further ordered and adjudged that the defendants, the District Court of the County of Pueblo in the Tenth Judicial District and the Honorable John H. Marsalis one of the Judges thereof be, and they hereby are, commanded to rescind and revoke that certain order made and entered September 29, 1958, in civil action No. 39,428, entitled Mary V. Lucas and William E. Lucas. Sr., Plaintiffs, vs. George K. Moore and Grace Elaine Moore, defendants, lately pending in said court, denying plaintiffs' right to discover the insurance limits under the liability insurance policies owned by the said Moores at the time of the occurrence of the automobile accident complained of. The defendants are further ordered and commanded to require said Moores to supply plaintiffs herein and in said action with the information requested in conformity with the opinion filed herein."
In their petition, petitioners requested that the district court be directed to "expunge from the record" its previous order. Even though the rule was made absolute, this requested relief was not ordered. The order simply directed the trial court to "rescind and revoke its former order." It further directed that the court enter an order commanding the defendants to supply the requested information. The above order is an appropriate one in this type of proceeding. In other words, this Court has the authority to direct the district court to comply with its ruling and that in substance is the requirement of the above quoted order.
We have carefully considered the able and extensive arguments of counsel for defendants and of amici curiae and we are of the opinion that the original opinion as here modified should be adhered to and it is so ordered.
MR. JUSTICE FRANTZ specially concurring. MR. CHIEF JUSTICE KNAUSS, MR. JUSTICE SUTTON and MR. JUSTICE HALL dissenting.