Horsley v. Robinson

WADE, Justice. The defendant, Utah Transportation Company, appeals from a $5,175 verdict in favor of plaintiff Erma Horsley for damages suffered in an accident while riding as a passenger for hire in a bus operated by the transportation company between Hill Field and Salt Lake City. The same jury returned a verdict of no cause for action in favor of the defendant Reinhardt. There was an aisle down the center of the bus with seven double seats on each side and one long seat for five persons across the rear end, thus seating 38 persons besides the driver. In the accident plaintiff was thrown forward causing her throat to strike against the back of the seat in front of her and thereby causing injuries which affected her voice. The accident occurred about 5:25 p. m. on January 23, 1944, in Davis County a short distance north of the Salt Lake-Davis County Line on highway 91, the main highway between Ogden and Salt Lake City. The paved portion thereof consists of four 10 foot traffic lanes with a 13 foot shoulder on each side. At the time of the accident the shoulders were lined with snow banks which substantially reduced their width; the highway was covered with ice, and slush and a sleet of snow and rain was falling, thus rendering driving conditions very hazardous. While the bus was proceeding southward at a speed between 20' and 50 miles per hour in the outside west traffic lane on the driver’s extreme right-hand side of the highway in the proximity of a long and very gradual curve and on a slightly down hill slope, the defendant Reinhardt was approaching driving his car from the opposite direction at from 20 to 30 miles per hour in the east traffic lane next to the center of the highway, when suddenly Reinhardt’s car went out of control and swung around so that it was facing to the *230 south in the outside west traffic lane and directly in the course of the oncoming bus. While the car was moving slowly toward the south the left front side of the bus ran into the rear right side of the car thereby shoving it down the highway a distance of from 30' to 50 feet where it was stopped by colliding with another car on the highway. By the impact with the Reinhardt car the bus was turned slightly to the west where it ran into another automobile which was parked on the west shoulder which deflected its course toward the east and it finally came to a stop in the snow bank on the east side of the highway about 75 feet from the parked car. The terms “between distance” and “distance between” used throughout this opinion to indicate the distance between the bus and the Reinhardt car when it first became discernible that the latter was out of control, and the term “due care speed” used to indicate a reasonable speed in view of the surrounding circumstances, were suggested by Mr. Justice Wolfe. The word “control” is used herein in its ordinary sense to mean the ability of the driver to stop or reduce the speed of his vehicle within a reasonable distance and to guide the same in the desired course. From the evidence it is clear that when the Reinhardt car commenced to turn it was within full view of the driver of the bus but that he did not slacken his speed prior to the collision nor apply his brakes until within 5 or 10 feet of the Reinhardt car. From these facts one of three things or a combination thereof must have caused the accident: (1) the Reinhardt car went out of control and into the course of the bus when it was so near thereto that there was no time for the bus driver to do anything to avoid the accident; (2) the driver of the bus, although he had sufficient time and had the bus under sufficient control to avoid the accident failed to see that the. Reinhardt car was turning into his course in time to avoid the accident, or seeing it in time failed to exercise the necessary control to avoid the accident; or (3) the bus driver, although he had sufficient time after the Reinhardt car commenced to turn into his course to *231 avoid the accident had he had the bus under control, did not have the bus under sufficient control to avoid the accident. If the Reinhardt car went out of control and into the course of the bus when it was so near thereto that the driver did not have time to avoid the accident then defendants were not negligent and plaintiff cannot recover. Cederloff v. Whited, 110 Utah 45, 169 P. 2d 777; Hart v. Kerr, 110 Utah 479, 175 P. 2d 475. If the second proposition above stated was the cause of the accident then clearly the defendants were negligent and such negligence proximately caused the accident because clearly the driver owes a duty to keep a proper lookout and see substantial objects on the road in front of him and to take the necessary steps to avoid colliding therewith and if he failed to do so he is liable for the damages resulting therefrom. However, I am not sure that the evidence would justify the jury in finding that such was the cause of the accident. If the accident was caused by the third set of facts above set out then the jury could from the evidence find facts sufficient to sustain a finding that the driver negligently operated the bus at such a speed that he was unable to maintain sufficient control thereof to avoid the accident. So it is necessary to analyze the evidence and determine what facts the jury could reasonably find therefrom. The controlling facts for the jury to determine are: (1) At what rate of speed was the bus travelling at the time of the accident? (2) How far was the between distance? (3) Did the driver have sufficient control over the bus to stop it within the between distance? And from those facts the jury would have to determine whether the defendants were guilty of negligence which proximately caused the accident and injuries. The jury had before it evidence that the bus was traveling as slow as 20 and as fast as 50 miles per hour. From all the evidence how fast could the jury reasonably find the bus was traveling? The testimony adduced by the defendants fixed its speed at from as slow as 20 to slightly faster than 25 miles per hour, and plaintiff fixed it at 50 miles per hour. The fact that the bus struck the Reinhardt *232 car and shoved it from 30 to 50 feet where it was stopped when it hit a parked car, and the fact that after striking the Reinhardt car the bus swerved to the right into another parked car and was deflected to the left across the highway where it was stopped by a snow bank about 75 feet from the parked car indicates that it was traveling with considerable speed. The evidence would sustain a finding by the jury that the bus was traveling as fast as 40 miles per hour. What is the maximum which the jury, from the evidence, could find the between distance was? Plaintiff testified that that distance was a Salt Lake City block (660 feet), Reinhardt estimated it at less than 300 feet and the bus driver esimated it at 75 to 100 feet. These were all interested witnesses but six passengers on the bus at the time of the accident were called by the defendants who testified at various distances ranging from 30 feet to 330 feet. All of them except one fixed it at 150 feet or less. The sixth witness was a Mrs. Sessions who when on direct examination by defendants’ counsel without leading was asked what that distance was answered twice that it was about a half a Salt Lake City block (330 feet). Later defendants’ counsel led her into estimating that distance at about the width of a Salt Lake City street (100 feet). Apparently she did not recognize that this testimony was in conflict with her previous statement. From the position the Reinhardt car was struck and the testimony of all the witnesses it had turned completely in the opposite direction and was traveling slowly toward the south, the same direction that the bus was going. This would require some time. From all of the evidence we conclude that the jury could have reasonably found that the between distance was as far as 330 feet. It is argued that since there is no evidence of the distance required to stop the bus under the then existing conditions at any given rate of speed the evidence is not sufficient from which the jury could find the defendants guilty of negligence which proximately caused the accident. If plaintiff must, in order to make a case, show that the driver could have *233 stopped the bus within the between distance then her evidence is clearly insufficient to justify a finding in her favor, because the evidence does not justify such a finding. On the contrary the evidence points definitely to the fact that the driver did not have the bus under sufficient control so that he could either bring it to a stop, reduce its speed, or steer it to one side sufficiently to avoid the accident within the in between distance. And this is true even though that distance was as far as 330 feet. The following facts quite definitely point to that conclusion : The icy highway covered with snow and slush with a sleet of snow and rain falling; the fact that the Reinhardt car went completely out of control while traveling from 20 to 30 miles per hour; one witness testified that as he approached the scene of the accident from the north he slowed his car down and put it in intermediate gear in order to insure that he could sufficiently control it so that he could safely stop and pick up passengers; the rate of speed at which the bus was traveling which the jury could reasonably find to be as fast as 40 miles per hour; the slightly down hill slope of the highway; the fact that the driver, according to his own testimony saw the Reinhardt car when it commenced to turn and that thereafter, as the jury could reasonably find, he traveled as far as 330 feet without applying his brakes until within 5 or 10 feet of that car and without appreciably decreasing his speed prior to the impact therewith, point almost conclusively to the fact that the driver did not have the bus under sufficient control to bring it to a stop or to turn it to one side sufficiently to avoid the collision. The jury would be amply justified in so finding. Here the jury was not only required to return a general verdict and we do not know how the jury determined the controlling questions of fact. Had the jury been required to answer special interrogatories covering these questions, and had they answered them in the manner we have above indicated they reasonably could find from the evidence, no one would contend that the evidence was not sufficient to sustain such a finding. Since the trial court is not required *234 to submit special interrogatories and therefore we do not know how the jury in fact did determine the controlling issues we must presume that they found the facts necessary to support their verdict if the evidence was sufficient to sustain such a finding. Thus we must view the evidence in its most favorable aspect to support the verdict which the jury has rendered and if from the evidence the jury could reasonably find facts necessary to sustain their verdict it must be sustained. This is true, even though had we been the triers of the facts we would have found them differently, or even though we may not believe that the jury did in fact so find or, even though we believe that such a finding would be against the great preponderance of the evidence. Under a general verdict we cannot be assured what facts the jury found or that they found the facts necessary to sustain their verdict. So it is universally held under the common law system, as it must be in order to give stability to jury verdicts, that the appellate court must sustain the verdict where the evidence is sufficient to support a finding of the necessary facts to do so. Otherwise, the appellate court would be required to reverse every verdict where in its opinion the great preponderance of the evidence is against a finding of the necessary facts to support it, even though the evidence is such that reasonable minds might conclude from the evidence that such necessary facts happened. To do so would be to review the evidence no matter what we call it. The question of what were the facts and where is the preponderance of the evidence is for the jury and not for the court to determine. Our problem is only to determine whether there is sufficient evidence to sustain the verdict. In doing so our standard is: Could a reasonable mind be convinced by the evidence of the necessary facts to support the verdict? If so, it must be sustained. That this court is not authorized to review the facts found by the jury is expressly provided by our Constitution, Article 8, Section 9, where it is provided “In cases at law the appeal *235 shall be on questions of law alone.” Since we cannot review the facts, whatever we think of where the preponderance of the evidence is, is immaterial. If we were to review the evidence and reverse this case because we think the preponderance of the evidence on a material issue is against the plaintiff, we do so in violation of that constitutional provision. We cannot avoid violation of this constitutional provision by holding that since we have no assurance that the jury did find that the between distance was 330' feet, we may assume that they found it to be much less and reverse the judgment on that ground; because this requires us first to find that the preponderance of the evidence is against the plaintiff on this question, and thus requires us to review the evidence for that purpose, which the Constitution forbids us to do. If the jury found the between distance was as far as 330 feet, that the bus was traveling as fast as 40 miles per hour and that the driver did not have sufficient control thereof so that he could stop or turn sufficiently to one side so that he could avoid the accident within that distance, then under the existing circumstances the jury could reasonably find that he was guilty of negligence which proximately caused the accident. The contention that the defendants were not negligent if the bus could not be stopped within the between distance is based on the assumption that the rate of speed at which the bus was traveling was reasonable regardless of whether the driver was able to control it under the existing conditions when traveling at such rate, and that the question of how much control the driver could maintain over the bus at such rate of speed is immaterial in determining whether such rate of speed is reasonable under the existing road conditions. What is a reasonable rate of speed under existing conditions must always be determined very largely on how much control the driver can maintain while driving at such rate. *236 *235 The driver of a vehicle carrying passengers for hire, owes them a duty to operate his vehicle within such rate of speed *236 as a reasonably prudent person would operate under the existing conditions. Under those conditions an increase in speed would proportionately decrease the control of the operator over his vehicle, and increase the danger to his passengers. Reasonable prudence requires that the driver shall not foreseeably expose his passengers to danger of serious bodily harm. If the operator drove the bus at such a fast rate of speed that he should realize that he could not have sufficient control thereof to avoid serious danger to his passengers under the existing road and weather conditions then he was negligent regardless of how slowly he must operate his vehicle in order to assure reasonable safety to his passengers. Where the road and weather conditions make driving hazardous, reasonable prudence requires a proportionate increase in the care of the driver to avoid injury to his passengers. No rate of speed can be fixed which will be reasonable under all conditions and circumstances. On a clear dry road burdened with little traffic a person could with reasonable prudence operate a vehicle much faster than he could when traveling over a highway covered with slick ice on top of which was slush while a sleet of snow and rain was falling, and where the highway was burdened with heavy traffic. The duty of the operator is to drive his vehicle at such a rate of speed that he can sufficiently control the same so that he does not foreseeably jeopardize the safety of his passengers. He is under this duty regardless of the size and weight of his vehicle and the road and weather conditions. Where the road and weather conditions are bad he must, in order to avoid being negligent, reduce his speed to a rate at which he can operate it with reasonable safety. Here we are only concerned with the defendants’ duty to their passengers not with their duty to the public generally nor with their last clear chance duty to Reinhardt. The rules above stated apply to the public generally and especially to a passenger for hire, since a carrier owes to its passengers for hire a duty to exercise greater care for *237 their safety than it owes to the public generally. Paul v. Salt Lake City Ry. Co., 30 Utah 41, 83 P. 563. The mere happening of the accident of course does not prove that the defendants were negligent. Nor does the fact that the rate of speed at which they traveled brought them at the scene of the accident at the time that the Reinhardt car went out of control and into the course of travel of the bus, because that is something that they could not anticipate and guard against. That seems to be the point which is cleared up by the cases of Whalen v. Dunbar, 44 R. I. 136, 115 A. 718 ; and O’Malley v. Eagan, 43 Wyo. 233, 2 P. 2d 1063, 77 A. L. R. 582. But negligence may be inferred from facts and circumstances which according to human experience tend to show and from which reasonable minds might be convinced that in operating, the bus as they did under the surrounding facts and circumstances the defendants should have anticipated that they were endangering the safety of their passengers. It is argued that on an icy highway it is impossible to drive so as to avoid the possibility of all collisions, that the road and weather conditions might be such that even at 5 miles per hour a bus of the size and weight of this one might slide 100 feet or more regardless of anything the driver could do about it. Of course, if this bus had been traveling at the rate of 5 miles per hour the collision with the Reinhardt car would not have injured the plaintiff because at that rate the bus being driven against a small car moving in the same direction would not create sufficient jar to injure the passengers. On the other hand, if the conditions were such that the driver could anticipate that if he drove at the rate of 5 miles per hour he would not be able to stop his bus within 100 feet and that he would thereby seriously jeopardize the safety of his passengers then it would be negligence of him to proceed at such rate of speed. Suppose conditions were such that the driver could anticipate that if he moved at the rate of 5 miles per hour he would slide 100 feet before he could stop and that in so doing he would be apt to slide over the side of the highway *238 and his bus would overturn or slide onto a railroad track where he would be struck by an approaching train, would anyone contend that he could proceed even at that rate of speed without being guilty of negligence? If the bus under normal road and weather conditions were operated on a highway burdened with heavy traffic, at such an excessive rate of speed that it could not be stopped or turned to one side sufficiently to avoid crashing into another car which came into its course of travel when the bus was 330 feet away and continued slowly in the same direction the bus was traveling, the driver of the bus would clearly be guilty of negligence in driving too fast. The defendants would also be negligent if they operated the bus under normal conditions with such defective steering and braking equipment, on a highway burdened with heavy traffic, so that it could not be stopped or steered to one side sufficiently to avoid a collision with a vehicle which came into its course 330 feet away in the manner that the Reinhardt car did in this case. Here the driver had driven more than 20 miles under similar road and weather conditions which he encountered at the time of the accident. He had ample time to fully realize the amount of control or lack thereof which he could exert over the bus in case of an emergency. The driver must know that this highway would be burdened with much traffic, he as a reasonable prudent man must anticipate that vehicles would be constantly crossing and coming into his course of travel. Under such conditions he must anticipate that it would be highly dangerous for him to operate the bus at such a rate of speed that he could not stop or turn to one side sufficiently to avoid a collision with the Reinhardt car if it came into his course of travel 330 feet away. The evidence was sufficient from which the jury could find the defendants were negligent. To this effect, the law is well established in this state: Section 57-7-113, U. C. A. 1943, provides: “ (a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard *239 to the actual and potential hazards then existing. In every event speed shall he so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance .on or entering the highway in compliance with legal requirements and the duty of all persons to use due care. ***** “(c) The driver of every vehicle shall, * * * drive at an appropriate reduced speed * * * when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.” This statute requires that a driver shall not drive at a speed greater than is reasonable and prudent in view of the existing conditions and hazards on the highway, that his speed shall be controlled so as to avoid colliding with other vehicles entering or upon the highway in a lawful manner, and that the speed shall be appropriately reduced when special hazards exist with respect to other traffic or by reason of weather conditions. In other words, since the greater the speed the less control the driver has over his vehicle and a longer distance is required within which to stop, and his ability to guide his vehicle is decreased, and since his control will also be decreased when traveling on icy roads covered with slush when a sleet of snow and rain is falling, he must under such conditions according to this statute decrease his speed so that he can drive with reasonable safety to others using the highway and, according to our cases, he even owes greater care to his passengers. In Nikoleropoulos v. Ramsey, 61 Utah 465, 214 P. 304, the defendant was driving his car at night during a heavy rain storm at about 12 miles per hour; in the distance the lights of oncoming cars reflected on the wet pavement into his eyes so that at the time of the accident he was unable to see the plaintiff walking on the pavement in front of him until he was within 6 feet and then it was too late to avoid running him down. We held that defendant was negligent as a matter of law, no matter how dark and stormy the night or how bad the visibility, if he drove at such a rate of speed that he was unable to avoid running plaintiff down within *240 the distance plaintiff could be seen walking ahead of defendant’s car on the highway. To the same effect see: Dalley v. Mid-Western Dairy Products Co., 80 Utah 331, 15 P. 2d 309 ; Haarstrich v. Oregon Short Line R. Co., 70 Utah 552, 262 P. 100; O’Brien v. Alston, 61 Utah 368, 213 P. 791. The Nikoleropoulos v. Ramsey case is in substance a holding that it is negligence to operate a vehicle on the highway at any time without having it under sufficient control so that others using the highway will not be unreasonably endangered thereby, regardless of how slow it is required to travel to accomplish that end. If that is the rule where visibility is involved, it follows that the same rule applies where the lack of control which endangers others is the result of slippery roads and stormy conditions. This would be especially true where a passenger for hire is involved. As above pointed out, if the lack of control which caused the danger to the passengers was the result of excessive speed, or defective steering apparatus and faulty brakes, then he would clearly be negligent. Under the above case the fact that the lack of control was the result of bad weather and road conditions, would not exonerate him from negligence. Here the situation is slightly different than it was in the cases cited in that the Reinhardt car was out of control and moving from one side to the other in an uncertain manner. Under such circum,stances a driver might try to pass to one side only to have the skiding car swerve into his path which he expected to be free. However, here as in the cases cited, the driver could be certain to avoid the collision by stopping the bus before it reached the skiding car. Since the car was traveling away from the bus had the bus been stopped, no collision could have occurred. There is also the difference that in the cases cited, the driver was traveling at nighttime, when the driver’s ability to see objects on the highway was limited by darkness, and here there was no such limitation on the driver’s ability to see. Since his ability to see was not so limited, his duty to keep his car *241 under control on that account was not so great. In view of these circumstances the driver was not, as a matter of law, guilty of negligence. But in view of the fact that the jury might have concluded that the car commenced to turn into the path of the bus when it was 330 feet away, and that the weather conditions were such that at the rate of speed the bus was traveling it could not be stopped, slowed down, or brought under control in time to avoid the accident, the jury could reasonably conclude from their own experience and practical judgment, of what an ordinary prudent person would do, that the driver was negligent in driving at such a rate of speed, and that such negligence was the proximate cause of the accident. If the jury found that when the Reinhardt car commenced to turn into the path of the bus, it was as much as 330 feet away, it being clear from the evidence that the visibility was such and the highway was free from obstructions so that the driver could clearly see the car when it commenced to turn; that the slippery condition of the highway had been the same all the way from Hill Field to the place of the accident a distance of more than 20 miles, thus giving the driver ample opportunity to know how fast he could safely drive and still keep it under proper control; that the accident occurred on a main highway where the driver must anticipate heavy traffic conditions; and in view of the fact that the transportation company owed to its passengers a special degree of care for their safety, the jury might reasonably conclude that the driver was operating the bus at such a fast rate of speed that he could not control it sufficiently to avoid the accident. If the jury so found they could reasonably conclude therefrom that he was guilty of negligence which proximately caused'the accident and plaintiff’s injury. This is a finding of negligence from the surrounding facts and circumstances and not merely from the happening of the accident alone. It is universally recognized that negligence may be inferred from the happening of the accident and the surrounding facts and circumstances where the facts *242 are such as to reasonably justify such inference even though there is no direct testimony to establish the exact grounds for negligence which caused the accident. Green v. Higbee, 66 Utah 539, 244 P. 906; Morrison v. Perry, 104 Utah 151, 140 P. 2d 772, which is the last opinion in that case which supercedes the one cited in appellant’s brief. The defendants’ negligence is based, not on the premise that the driver could have stopped within the between distance, but on the opposite premise that by reason of excessive speed under the existing conditions he could not stop within that distance, and has thereby foreseeably endangered his passengers. Evidence of the distance required to stop the bus at various rates of speed would be necessary only where it supplies proof of some essential element of negligence which would otherwise be lacking. Here the essential elements necessary to establish negligence on account of lack of a due care rate of speed requires a showing that the bus was being operated at such a fast rate of speed that the driver should have realized that it was out of control to such an extent as to endanger the safety of his passengers. Evidence of the distance required to stop the bus at various rates of speed would tend to show either that the driver did or that he did not have the ability to stop the bus within the in between distance. If it showed that the driver could stop the bus within the between distance then it would defeat a claim of negligence on this theory, but would conclusively establish negligence on the grounds that had he used due care he would have stopped the bus within that distance and thereby avoided the accident. If it showed that the driver could not stop the bus within that distance then it would establish one of the necessary elements of this type of negligence, but, as previously pointed out, that element was amply shown by the evidence which was introduced. No complaint is made that such fact was not sufficiently established. The complaint seems to be that such fact was established and that the defendants were thereby exonerated from negligence. *243 A comparison with other distances will help us to visualize how far 330 feet is. It is 110 yards, one-half of a Salt Lake City block, one-sixteenth of a mile, nearly four times the distance between the poles of an ordinary utility pole line. These distances are familiar to every one who has lived a long time in this state. It is a long and dangerous distance for a bus to travel on a highway burdened with traffic without the ability to stop or reduce its speed sufficiently to avoid a collision such as this. The distance within which the bus could be stopped at a given rate of speed is an evidentiary fact and not an ultimate one. The value of evidence thereon would be that the ultimate facts which are controlling in this case might be inferred therefrom. That fact would have some bearing on the question of what was a due care rate of speed but it certainly is not controlling on that question. Here, as above pointed out, there are three sets of facts which were very largely determinative of what was not a due care speed under the existing conditions. They are: (1) How far was the between distance? (2) How fast was the bus traveling? (3) Did the driver have sufficient control over the bus so that his speed was a due care speed? Both of the first two questions were answered by direct evidence, and the question of the distance required to stop the bus when traveling at various speeds would have no bearing on either of them. That evidence would only tend to show whether or not the bus was out of control. Here the evidence is ample to show that the bus was out of control, so that it could not be stopped or its speed reduced sufficiently to avoid the accident. Such evidence was not necessary in order for plaintiff to make a prima facie case, and this court is not authorized to require the plaintiff to produce it. Especially is this true where as here the missing evidence has no tendency to establish the disputed questions of fact in the case. Although the smoother the road surface the greater the distance required to stop the bus at a given speed it does not follow that a driver can, without being negligent, drive *244 at such a rate of speed over a smooth road that the safety of his passengers will be thereby jeopardized. What is due care under the existing conditions is determined by the driver’s duty to his passengers, and that duty is that he must not foreseeably jeopardize their safety; he has that duty whether driving over a smooth icy road or over a normal dry pavement. To this effect the statute and cases cited are positive. The evidence here was sufficient since the jury could reasonably find that the bus was traveling at 40 miles per hour, that the between distance was 330 feet, and that the bus was out of control so that it could not be stopped or its speed reduced sufficiently to avoid this accident within that distance. It must be kept in mind that here our problem is whether the evidence is sufficient to sustain the verdict, not whether the evidence in question is admissible. Had defendants offered to prove the distance which would be required to stop the bus under the surrounding circumstances at a given rate of speed and such offer had been rejected we would have had a different problem. Since the evidence was sufficient to make a prima facie case for plaintiff it is sufficient to sustain a verdict in her favor and that is all we can require her to do. She is not required to produce evidence which will tend to defeat her claim. If there are other material facts which defendants wanted to prove they were at liberty to introduce evidence thereof but they certainly cannot defeat plaintiff’s claim merely on the ground that she has failed to produce all the material evidence. This is especially true where as here the defendants ¿re in a better position to supply the missing evidence than is plaintiff. They, no doubt, have as their employees many experienced drivers of buses similar to this one whom they could call to give evidence on the distance required to stop the bus under the then existing conditions and the driver who was then operating the bus at the time of this accident was in a better position to know these facts than any one else. We have carefully considered the other assignments of error and find no merit to them. The judgment of the trial *245 court is affirmed with costs to the respondent. McDONOUCH, C. J., concurs in the opinion of Mr. Justice WADE, as elucidated by the opinion of Mr. Justice WOLFE.