Opinion
14059.
MAY 28, 1942. REHEARING DENIED JUNE 20, 1942.
Certiorari; from Court of Appeals. 66 Ga. App. 295.
Neely, Marshall Greene and W. Neal Baird, for plaintiff in error.
Hewlett Dennis and T. F. Bowden, contra.
1. "A foreign corporation doing business in this State and having agents located therein for this purpose may be sued and served, in the same manner as domestic corporations, upon any transitory cause of action whether originating in this State or otherwise; and it is immaterial whether the plaintiff be a non-resident or a resident of this State, provided the enforcement of the cause of action would not be contrary to the laws and policy of this State." Reeves v. Southern Railway Co., 121 Ga. 561 ( 49 S.E. 674, 70 L.R.A. 513, 2 Ann. Cas. 207).
2. While certain pronouncements in that case may have been broader than its facts and thus not binding as authority, as indicated in Louisiana Rice Milling Co. v. Mente, 173 Ga. 1 ( 159 S.E. 497), neither is the latter decision binding as a precedent, since it was not concurred in generally by all the Justices, one having concurred "specially."
3. As applied to the facts of the instant record, the decision in the former case is now regarded by this court as correctly stating the law of Georgia, and therefore it is followed in preference to the other and later decision.
4. The foregoing rulings are made without reference to the Federal employers' liability act under which the case arose; but on considering that statute, the conclusion is the same as to jurisdiction, on the facts appearing.
5. The case having come to this court by certiorari, on application of the foregoing rulings and of conclusions stated in the accompanying opinion, the Court of Appeals properly reversed the judgment of the trial court sustaining the defendant's plea to the jurisdiction, but the opinion of the Court of Appeals should be modified. Accordingly, the judgment is affirmed, with direction.
No. 14059. MAY 28, 1942. REHEARING DENIED JUNE 20, 1942.
T. E. Parker filed in Fulton superior court a suit against Southern Railway Company, to recover damages from personal injuries alleged to have been sustained by him in South Carolina while employed by the defendant as a switchman in the defendant's railroad yard in the city of Greenville, in that State. The petition alleged that the defendant was a "railroad corporation, having an office, agent, and place of doing business in said State and County," that is in Fulton County, Georgia, where the suit was filed, and "that at the time and place in question defendant was engaged in interstate commerce and petitioner was employed in such commerce." These averments were admitted in the defendant's answer. Before answering, however, the defendant filed a plea to the jurisdiction, in which plea as amended it was alleged:
1. "That plaintiff is a non-resident of the State of Georgia, being a resident of the State of South Carolina, and the defendant is a non-resident of the State of Georgia, being incorporated and organized under the laws of the State of Virginia, and being a resident of said State of Virginia; that plaintiff's suit is based upon an alleged cause of action which is transitory in its nature and which arose without the State of Georgia, the accident giving rise to said suit having occurred in the State of South Carolina; and that said suit is based upon no transaction connected with the business done in this State, with the consequence that this court [the superior court of Fulton County] is without jurisdiction of said suit."
2. In the circumstances above alleged, "for this court to take jurisdiction of said case would constitute a violation of the fourteenth amendment to the constitution of the United States, because the State of Georgia would thereby deprive this defendant of property without due process of law, because the courts of Georgia do not have any jurisdiction of such a cause of action as is claimed in said suit."
By consent the issues made by such special plea were tried before the judge without a jury; and after introduction of evidence by both sides and submission of a stipulation, the judge found that the defendant is a Virginia corporation, with a place of business in Georgia; that at the time the plaintiff was injured and at the time of filing suit he was a "legal resident" of South Carolina; that his injuries were sustained in South Carolina, and at the time they were sustained he and the defendant were engaged in interstate commerce. On basis of these findings, and noting that the suit was based on a transitory cause of action, the judge sustained the plea to the jurisdiction and dismissed the plaintiff's action. To this judgment the plaintiff excepted. This judgment was reversed by the Court of Appeals, and on application of the railway company certiorari was granted by this court. For the decision under review and a more complete statement of the facts, see Parker v. Southern Railway Co., 66 Ga. App. 295 ( 17 S.E.2d 750).
The evidence showed, without dispute, that the plaintiff was a member of a switching crew working under Pierce C. Long, acting yard conductor, at the time he was injured; that his injury occurred at night while these employees were executing an order given to Long as conductor to go to a certain mill and get two cars, including a Southern car, and bring them to the yard; that the purpose of bringing the Southern car was to "put it into a train for Atlanta." It did not appear, however, whether Atlanta was the final destination of this car or whether it was destined to some point without the State of Georgia. Besides testimony as to the manner in which the injury occurred, it appeared from the plaintiff's petition that while he was standing on a described loading platform giving signals, he was struck by the door of the "lead" or "forward" car of the passing switch train consisting at the time "of two cars and an engine, the forward car of which was to be left by said loading platform, and the other car, as aforesaid [the Southern car], was to be placed in a train bound for Atlanta."
The opinion of the Court of Appeals, one Judge concurring specially, was as follows:
"The issue of jurisdiction was made by the defendant by its plea in abatement, and the burden of proof was on the defendant to establish the truth of two allegations: 1. That the plaintiff was a non-resident of Georgia, and 2, that the operation of the engine by which the plaintiff was alleged to have been injured was not connected with and bore no reasonable relation to its business in Georgia. Assuming for the sake of argument that the evidence showed the plaintiff was a non-resident, a question which we do not now decide, it did not show that the operation of the engine at the time in question was not connected with the business of the defendant in Georgia. If the Southern car was ultimately destined to a point in Georgia the operation in question was connected with the defendant's business in Georgia, as we shall presently show. If it was simply to pass through Georgia on into another State the operation would not involve the defendant's business in Georgia. The evidence does not show what the final destination of the car was. It only showed that the car was destined to Atlanta or a point south of Atlanta. In order for the defendant to prevail on its plea it was necessary for it to show that the car was destined to a point outside the State of Georgia. Since it did not show such a fact to be true it did not carry its burden, and it was error for the court to hold that the cause of action was a transitory one.
"It is argued by the defendant that the presence of the Southern car, attached to the engine, was merely incidental matter, and that the injury did not occur while the Southern car was being attached to the engine. It is true that the injury occurred after the Southern car was attached to the engine, but it occurred while the engineer was in the act of moving it to a place where it was to be attached to another train and sent to its destination. Another car also had to be picked up. Picking up the two cars on the same operation was to the advantage of the defendant in the saving of time, and to require the defendant to make two complete and separate operations in order to place two cars would be highly useless and impractical. The operations to all intents and purposes were one operation, and if one of its purposes was to place the Southern car where it could be sent to Georgia it rendered the transaction one in which the defendant would be engaged involving directly its business in Georgia. Of course, if the Southern car had been merely attached to the engine and was eventually to be sent to Georgia, but was not at the time being placed so as to be sent to Georgia, the contention of the defendant would be correct. But such is not the case. Under the above rulings and under the rulings in Reeves v. Southern Ry. Co., 121 Ga. 561 ( 49 S.E. 674, 70 L.R.A. 513, 2 Ann. Cas. 207), Louisiana State Rice Milling Co. v. Mente, 173 Ga. 1 ( 159 S.E. 497), and McCorkle v. Pullman Company, 60 Ga. App. 879 ( 5 S.E.2d 382), the court erred in sustaining the plea to the jurisdiction and in dismissing the action."
The petition for certiorari assigned error on the grounds: that the decision of the Court of Appeals is in conflict with the decisions cited to sustain it, and is a misconstruction of decisions of the Supreme Court and of other decisions by that court; that it was error to rule and hold that "the presence of the Southern car (as dead weight) in the train at the time of the switching movement in which the plaintiff was injured was sufficient to give the Georgia courts jurisdiction . . of a transitory cause of action occurring in a foreign jurisdiction between two non-residents of Georgia;" that the Court of Appeals erred in holding as a matter of law "that defendant had not carried the burden of proof showing that the work in which plaintiff and defendant were engaged at the time of his injuries was not related to defendant's Georgia business;" that "the presence of the Southern car in the train at the time of the plaintiff's injuries was not a contributing proximate cause to plaintiff's injuries and the ultimate destination of such car did not and could not cause or contribute to plaintiff's injuries;" that the opinion of the Court of Appeals "shows that there is evidence in the record to support the findings of fact as made by the trial court, and the Court of Appeals erred in ruling as a matter of law that the operation of defendant's train, at the time of plaintiff's injuries, involved a transaction which bore a direct relation to defendant's business in Georgia;" and that "the effect of the ruling by the Court of Appeals of Georgia is to deprive petitioner of its property without due process of law, contrary to the fourteenth amendment to the constitution of the United States."
Certiorari was granted because of confusion as to an important question of jurisdiction, resulting primarily from previous decisions by this court, which under the constitution are binding upon the Court of Appeals as precedents. Code, § 2-3009.
Considering the case first without reference to the Federal employers' liability act, we see it as one based upon an ordinary transitory cause of action, involving the same principles that were enunciated by this court in Reeves v. Southern Railway Co., 121 Ga. 561 (supra); and the first question for determination is as to the force that should be given to that decision. The action there was against this same railroad company, a Virginia corporation. The residence of the plaintiff did not appear. The defendant was at that time, as now, engaged in business in Georgia, and was properly served. The action was based on injury to personal property occurring in Alabama during transportation by the defendant railway company under a contract of shipment from Harrison, Missouri, to Atlanta, Georgia. The suit was dismissed on demurrer for want of jurisdiction, and the plaintiff excepted. The ruling of this court, as expressed in the headnote, was as follows: "A foreign corporation doing business in this State and having agents located therein for this purpose may be sued and served in the same manner as domestic corporations, upon any transitory cause of action whether originating in this State or otherwise; and it is immaterial whether the plaintiff be a non-resident or a resident of this State, provided the enforcement of the cause of action would not be contrary to the laws and policy of this State." In the opinion it was said:
"The fact that a corporation has no existence except in legal contemplation gave rise to the conception that its existence could not be legally recognized outside of the territorial jurisdiction of the lawmaking power which created it, and that therefore it was impossible for a corporation to migrate beyond the bounds of its creator. This conception resulted in the courts holding that the corporation could not be sued in a jurisdiction foreign to that which gave it existence. While under this view as a matter of theory the corporation did not migrate, yet as a matter of fact its officers and agents did; and contracts were made in its name, and wrongs committed by its officers and agents, in territory far remote from that in which it was supposed to have its only legal existence. Great hardship and inconvenience resulted oftentimes from the application of this rule, which had the effect of compelling those who sought redress for breaches of contract and other legal wrongs against the corporation to bring their actions in the courts of the jurisdiction creating the corporation; the expenses of the remedy in many cases amounting to more than what would have been the fruits of recovery. The recognition of the hardship resulting from this rule brought about a modification of the rule, to the extent that where a foreign corporation located an agent and actually transacted business in a foreign jurisdiction, it so far acquired a residence in that jurisdiction as to make it amenable to the processes of the courts thereof on all causes of action originating within that jurisdiction. The rule was then further modified to the extent that where the corporation had an agent and was doing business in a foreign jurisdiction, it might be sued upon any transitory cause of action by a citizen of the State in which the corporation was thus doing business. And in this country it followed from this rule that if a resident was allowed to bring this suit, any citizen of the United States would, under the constitution of the United States, have a similar right to bring suit. South Carolina Railroad Co. v. Nix, 68 Ga. 572 (2), 580; Barrell v. Benjamin, 15 Mass. 354; Cole v. Cunningham, 133 U.S. 107, 113-114 [ 10 Sup. Ct. 269, 33 L. ed. 538]. There are many years and manifold changes in economic conditions between the old rule, which denied the right to sue a foreign corporation in personam outside of the jurisdiction of its creation, and the modern doctrine, that the question of jurisdiction and suability is not so much one of citizenship as one of finding. See Williams v. Ry. Co., 90 Ga. 522 [16 S.E. 303]; Dearing v. Bank, 5 Ga. 497 [48 Am. D. 300]. The development of the principle was by gradual steps, and necessarily involved the overturning of many old cases. The case of Bawknight v. Insurance Company, 55 Ga. 194, was decided during the transition period and before the modern doctrine had been firmly established. It denied the right to sue a foreign corporation on a foreign cause of action. This decision seems to have been followed in Central Railroad Co. v. Carr, 76 Ala. 388, 52 Am. Rep. 339. In the Bawknight case it is to be noted that the original record shows that the plaintiff was a resident of the State of Florida, and at that time the fact of the non-residence of the plaintiff was by several courts considered important, some holding that on a cause of action arising in another State a non-resident plaintiff could not sue a non-resident corporation, while others held that it was within the discretion of the court to allow or refuse such right to a non-resident. The true test of jurisdiction is not residence or non-residence of the plaintiff, or the place where the cause of action originated, but whether the defendant can be found and served in the jurisdiction where the cause of action is asserted. A corporation can be found in any jurisdiction where it transacts business through agents located in that jurisdiction; and suits may be maintained against it in that jurisdiction, if the laws of the same provide a method for perfecting service on it by serving its agents. From 1845 to the present time the law of Georgia has provided that service of process necessary to the commencement of ` any suit against any corporation in any court,' with certain exceptions which are not material to this discussion, may be perfected by serving any officer or agent of such corporation, or by leaving a copy of the process at the place of transacting the usual and ordinary business of such corporation, if such place shall then be within the jurisdiction of the State in which the suit is commenced. Civil Code, § 1899 [Code of 1933, § 22-1101]. The language of this section is sufficiently broad to authorize the service of process in a suit against a foreign corporation that has a place of doing business in this State."
The foregoing is only an excerpt, but further quotation will not be indulged. The decision was concurred in by all the Justices, and therefore as to such question as it determined it is binding as authority until it is reviewed and overruled or is superseded by a decision of the United States Supreme Court, as to some Federal question.
In Louisiana State Rice Milling Co. v. Mente, 173 Ga. 1 (supra), it was held: "Where one non-resident corporation brings suit in this State against another non-resident corporation, both plaintiff and defendant being domiciled in the same State, although the petition alleges that defendant foreign corporation `has an office, agent, and place of business and is doing business in Chatham County, Georgia,' but where the cause of action does not arise out of any of the business transacted in this State, and where the cause of action bears no relation to the business transacted in this State, the courts of this State have no jurisdiction. Applying the foregoing principles to the facts of this case, the court did not err in sustaining the general demurrer and dismissing the petition." In the opinion it was stated in effect that the decision in the Reeves case should be restricted to its actual facts; and that since the case was actually one in which the business done by the railroad company in Georgia bore a direct relation to the injury, the decision therein did not control the Louisiana Rice Milling Company case.
It may be said in this connection that on practically every proposition that it is necessary to consider in a case of this kind, the authorities are in direct conflict, with numerous decisions on each side; and this was true even at the time of the decision in the Reeves case. See 20 C. J. S. 174, § 1922; 23 Am. Jur. p. 501, § 496; Lipe v. Carolina c. Railway Co., 123 S.C. 515 ( 116 S.E. 101, 30 A.L.R. 248); Gregonis v. Philadelphia Reading Coal c. Co., 235 N.Y. 152 ( 139 N.E. 223, 32 A.L.R. 1); Steele v. Western Union Telegraph Co., 206 N.C. 220 ( 173 S.E. 583, 96 A.L.R. 361); State ex rel. Taylor Laundry Co. v. District Court, 102 Mont. 274 ( 57 P.2d 772, 113 A.L.R. 1, and especially the annotations). The decision in the Reeves case accorded with the weight of authority at the time of its rendition, and still accords therewith. It expressly overruled Bawknight v. Liverpool London Globe Insurance Co., 55 Ga. 194, supra, as being in conflict with modern authority and with the policy of this State as indicated by legislation in existence at the time that case was decided; and, as shown in the quotation above, it also disapproved Central Railroad Co. v. Carr, 76 Ala. 388 (52 Am. R. 339), another exponent of the minority view, until the Alabama law was changed by legislative enactment. Jefferson Island Salt Co. v. Longyear Co., 210 Ala. 352 ( 98 So. 119); McKnett v. St. Louis San Francisco Railway Co., 292 U.S. 234 ( 54 Sup. Ct. 690, 78 L. ed. 1227). There were still other features illustrating the scope and intent of the decision in the Reeves case.
Accordingly, while it may be true that the cause of action there did bear a direct relation to business done by the railroad company in Georgia, the decision as a whole shows that this circumstance was treated as immaterial, and that the conclusion reached would have been the same in the absence of such relationship. The opinion dealt mainly with important questions of law about which the authorities were in conflict, and deliberately pronounced what was conceived to be the Georgia law and policy regarding them.
Despite all of this, however, we do not deem it necessary to determine whether the Reeves decision is absolutely binding as a precedent. Be that as it may, we have in the present case carefully re-examined the questions considered in that case; and having done so, we are convinced that it correctly states the Georgia law as applied to the present situation. It also accords with what has apparently been the consistent judicial usage in Georgia from the early history of this court to the present time, except for the short period between the Bawknight and Nix cases, supra, and the period following the Louisiana Rice Milling Company case; the interruptions amounting in all to only about sixteen years. The decision in the Rice Milling Company case was not concurred in generally or unqualifiedly by all the Justices, the Chief Justice having concurred specially; so that decision is not binding as a precedent upon this court. 21 C. J. S. 305, § 189; 14 Am. Jur. 294, § 81. Nor is there a decision of the United States Supreme Court that would require a similar ruling in the instant case. Accordingly, whether in view of its facts the Reeves case is absolutely binding as a precedent, we are free to follow it in the present case, and we do follow it in so far as it is applicable. To the same effect see South Carolina Railroad Co. v. Nix, 68 Ga. 572 (2), also a unanimous decision. This means, of course, that for present purposes we lay aside the Rice Milling Company case, although the conclusion reached therein may have been correct under its peculiar facts, especially as the plaintiff there was a foreign corporation and thus may not have been entitled to invoke the "privileges and immunities" clause applicable to citizens. As to the right of a corporation to invoke that clause (Code, § 1-402), see Paul v. Virginia, 75 U.S. 168 ( 19 L. ed. 357); Ducat v. Chicago, 77 U.S. 410 ( 19 L.ed. 972); Waters, Pierce Co. v. Texas, 177 U.S. 45 ( 20 Sup. Ct. 518, 44 L. ed. 657); Western Turf Association v. Greenberg, 204 U.S. 359 ( 27 Sup. Ct. 384, 51 L. ed. 520).
The Court of Appeals in dealing with the present case evidently regarded the Rice Milling Company case as a binding precedent (cf. Erlanger Cotton Mills v. O'Neill Brothers Inc., 46 Ga. App. 329, 167 S.E. 715; McCorkle v. Pullman Co., 60 Ga. App. 879, 5 S.E. 382), but concluded that the instant case was not brought within its scope, because of the defendant's failure to show that the operation of the engine at the time in question was not connected with the business of the defendant in Georgia. While we can not see that the plaintiff's injury was connected with Georgia business, we are of the opinion that such connection was not essential to jurisdiction. The trial judge found that the plaintiff was a "legal resident" of South Carolina and the Court of Appeals proceeded on the theory that he was a "non-resident" of this State. As we view the case, it is immaterial whether the quoted terms were intended to refer to residence only, as distinguished from citizenship, in contemplation of the "privileges and immunities" clause. For classifications based on such distinction, see Robinson v. Oceanic Steam Navigation Co., 112 N.Y. 315 ( 19 N.E. 625, 2 L.R.A. 636); Loftus v. Pennsylvania Railroad Co., 107 Ohio, 352 ( 140 N.E. 94); Chambers v. Baltimore Ohio Railroad Co., 207 U.S. 142 ( 28 Sup. Ct. 34, 52 L. ed. 143); Douglas v. New York, New Haven Hartford Railroad Co., 279 U.S. 377 49 Sup. Ct. 355, 73 L. ed. 747. The distinction would not be important under the Reeves case, where the plaintiff was not an alien, especially as the plea of the defendant presented no question as to comity, but was grounded solely upon an alleged want of jurisdiction. As to comity, see Code § 79-305; Southern Railway Co. v. Decker, 5 Ga. App. 21 ( 62 S.E. 678); Tennessee Coal, Iron Railroad Co. v. George, 11 Ga. App. 221 ( 75 S.E. 567); Chambers v. Baltimore Ohio Railroad Co., supra. If the plea to the jurisdiction might be construed as including the contention that the defendant as a foreign corporation is present in Georgia for the purpose of suit only as to business done in Georgia or as to transactions connected therewith, such contention would also fail under the decision in the Reeves case.
It was further alleged, in effect, that assumption of jurisdiction by Georgia would violate the fourteenth amendment by depriving the defendant of its property without due process of law. This was a mere conclusion of the pleader, resting only upon the allegations as to non-residence of the parties and occurrence of the injury in South Carolina. There was no allegation or proof touching greater expense or inconvenience of trial in Georgia, and in the absence of such the defendant could not invoke the fourteenth amendment, so far as mere burden is concerned. Cf. Forrester v. Edwards, 192 Ga. 529 (2) ( 15 S.E.2d 851); Washington Seminary Inc. v. Bass, 192 Ga. 808 ( 16 S.E.2d 565); Davis v. Farmers Co-Operative Equity Co., 262 U.S. 312 ( 43 Sup. Ct. 556, 67 L. ed. 996); Atchison, Topeka Sante Fe Railway Co. v. Wells, 265 U.S. 101 ( 44 Sup. Ct. 469, 68 L. ed. 928); Michigan Central Railroad Co. v. Mix, 278 U.S. 492 ( 49 Sup. Ct. 207, 73 L. ed. 470); Denver Rio Grande Western Railroad Co. v. Terte, 284 U.S. 284 ( 52 Sup. Ct. 152, 76 L.ed. 295); International Milling Co. v. Columbia Transportation Co., 292 U.S. 511 ( 54 Sup. Ct. 797, 78 L. ed. 1396).
This is not to imply that any facts as to expense or inconvenience could have deprived the court of jurisdiction, or even that such facts might have been urged in equity to restrain exercise of it, the defendant being engaged in business in Georgia and therefore ordinarily subject to suit in this State. Under the facts of the record these questions are not presented. The question of having jurisdiction and of exercising it are two different things. Nothing here said is intended to rule on the power of a court to refuse to exercise its jurisdiction, where it is duly shown in a proper proceeding that it would be inequitable to do so. Cf. McDaniel v. Alford, 148 Ga. 609 ( 97 S.E. 673); Cole v. Cunningham, 133 U.S. 107 ( 10 Sup. Ct. 369, 33 L. ed. 538); Canada Malting Co. v. Paterson Steamships Ltd., 285 U.S. 413 ( 52 Sup. Ct. 413, 76 L. ed. 837); Rogers v. Guaranty Trust Co., 288 U.S. 123 ( 53 Sup. Ct. 295, 77 L. ed. 652, 89 A.L.R. 720).
Having considered the case thus far without reference to the Federal employers' liability act, we will now inquire as to the effect of that statute. As to Federal courts, it provided that suit might be brought in the district of the defendant's residence, or in which the cause of action arose, or in which the defendant shall be doing business at the time of the commencement of such action; and jurisdiction of the Federal courts was made concurrent with that of the State courts. U.S.C.A. title 45, § 56. There is no attack upon any of these provisions. For cases dealing with constitutional questions arising thereunder and upholding the statute, see Chesapeake Ohio Railway Co. v. Vigor, 90 F.2d 7; Hoch v. Byram, 180 Minn. 298 ( 230 N.W. 823); Boright v. Chicago c. R. Co., 180 Minn. 52 ( 230 N.W. 457).
It seems that under decisions of the United States Supreme Court, suit against a railroad company in a State other than that in which the cause of action accrued might constitute an undue burden on interstate commerce, and thereby deprive the court of jurisdiction, if the defendant did no interstate business in the State where it was sued, but that the rule would be otherwise where, as here, the defendant was engaged in such business within the jurisdiction in which the action was brought. Davis v. Farmers Co-Operative Equity Co., 262 U.S. 312 (supra); Hoffman v. State ex rel. Foraker, 274 U.S. 21 ( 47 Sup. Ct. 485, 71 L.ed. 905); Michigan Central Railroad Co. v. Mix, 278 U.S. 492 (supra); Denver Rio Grande Western Railroad Co. v. Terte, 284 U.S. 284 (supra).
On the facts of the record there was no lack of jurisdiction because the case arose under the Federal employers' liability act. See further, Douglas v. New York, New Haven Hartford Railroad Co., 279 U.S. 377 ( 49 Sup. Ct. 355, 73 L. ed. 747); Murnan v. Wabash Railway Co., 246 N.Y. 244 ( 158 N.E. 508, 54 A.L.R. 1522); and especially Baltimore Ohio Railroad Co. v. Kepner, 314 U.S. 44 ( 62 Sup. Ct. 6, 86 L. ed. 37); Miles v. Illinois Central Railroad Co., 314 U.S. ( 62 Sup. Ct. 827, 86 L. ed. 766), including the dissenting opinions in these two cases as well as the concurring opinion in the Miles case.
From what has been said, the judgment of the Court of Appeals should stand affirmed, but its opinion should be modified to conform with the foregoing views; and it is so directed.
Judgment affirmed, with direction. All the Justices concur.