MARY I. AEBY v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
SUPREME COURT OF MISSOURI
April 5, 1926
313 Mo. 492
Division Two
NEGLIGENCE: Unsafe Platform: Defective Construction: Pleading: Knowledge. An allegation of the defendant‘s knowledge of a dangerous depression in its railroad platform arising from defective construction, is not necessary. If the unsafe condition is due to the manner in which the platform was constructed, and the petition sufficiently sets forth the unsafe condition in which it was maintained, it will be assumed that defendant had knowledge of its defective condition prior to the time its employee was injured, and it becomes unnecessary to allege that defendant knew, or by the exercise of ordinary care could have known, of the negligent conditions, or that they had existed for such a length of time to have enabled defendant, by the exercise of ordinary care, to have discovered and remedied them. - ———: ———: ———: Ordinary Care: How Determined: Ice and Snow: Anticipation. Reasonable and ordinary care must be determined in the light of the dangers to be reasonably anticipated. Where the railroad company constructed a ten-foot platform in front of its passenger station, of loose chat and broken stones laid on the ground, and made it a foot higher next to the tracks than at the station house, and permitted rain water to run off the roof upon the platform and the water to wear channels in the chat along the house and at the steps at the door into the waiting room, it must be presumed to know that a depression would form in front of the steps, caused by the rain and the travel of persons to and from the waiting room; that the rain would fill the depression with water; that the water would freeze in the winter, and that the depression would be covered with ice and snow and become dangerous to persons entering or leaving the waiting room. And all these facts being alleged in the petition, and the depression arising out of a defective construction, it was unnecessary to allege that defendant had or could have had knowledge of the negligent conditions. In the exercise of ordinary care the defendant was bound to anticipate, not only that the depression would form, but that its station agent, walking over it upon a cold and snowy night, might slip, fall and be injured, and to make reasonable provisions for such contingencies.
———: ———: Federal Act: Pleading Defective Appliance: Railroad Platform: Works: Casus Omissus. A railroad platform in front of a passenger station, used by defendant‘s station agent in the performance of her duty to meet all trains and to operate a truck in handling mail, baggage and express, if defectively constructed and containing a dangerous depression, is embraced within the provisions of the Federal Employers’ Liability Act, declaring that “every common carrier by railroad” while engaging in interstate commerce “shall be liable in damages to any person suffering injury while employed by such carrier in such commerce . . . by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.” For the performance of such duties by such station agent the platform is “works” or a working place, and a petition alleging that she was injured when she stepped upon a depression in the platform in front of the steps, covered with ice and snow, in returning from placing a truck for the reception of mail from an interstate passenger train, states an injury due to a defective or insufficient appliance designated in the act. - ———: ———: Assumed Risks: Unsafe Place: Ice and Snow: Ordinary Care: Instruction. The servant never assumes a risk created by the negligence of the master. Where the evidence tends to show that the defendant railroad company was negligent in the construction and maintenance of a platform in front of its passenger station; that it was not the duty of the station agent to repair a depression therein caused by rain and travel; that she did not know that there was ice under the snow thereon when she stepped upon it in the performance of her duties, and slipped, fell and was injured; and that the defendant‘s negligence, in the construction and maintenance of the platform and in permitting such unsafe depression to form, was the proximate cause of her injury, she did not assume the risk of injury resulting from the prevailing conditions. If she did not know that ice had formed on the water in the depression under the snow that had fallen during the night, and its existence was not plainly observable, she was not required to use even ordinary care to discover it, and an instruction which required her to use ordinary care to discover the ice under the snow and to avoid stepping on it was more favorable to defendant than the law allows.
- ———: ———: Evidence: Climatic Conditions: Anticipation. Evidence that there were depressions and holes in the railroad platform constructed of chat and loose stones; that rain came on the night of January 13th, and water filled the holes and froze, and snow covered the ice; that this was not unusual; that ice had previously formed in the depressions, and that the place was the northern part of
Arkansas, is evidence from which the jury may properly infer that a reasonably prudent railroad operator could reasonably have anticipated that rain, sleet and ice would fall and accumulate in the holes. - ———: ———: ———: Total Failure: Foreclosed by Instruction: Waiver. Defendant‘s contention on appeal that plaintiff knew or should have known rain had filled the holes in the platform and had frozen and that she failed to exercise ordinary care for her safety, and that her injury was therefore solely due to her own negligence, is foreclosed by its instruction, asked and given, declaring that if plaintiff failed to exercise ordinary care to see and avoid ice on the platform and that such failure directly caused her to slip and fall, such failure is not a bar to a recovery, but the damages, if any, which shall be awarded to her, shall be diminished in proportion to the amount of her failure to exercise ordinary care attributable to her, and by a verdict for plaintiff.
- EXCESSIVE VERDICT: $15,000: Uterine Hemorrhage, Etc. At the time of the trial plaintiff was thirty-six years of age and unmarried. Prior to her injuries she was in good health, was earning from $150 to $165 per month, and between her injuries and the trial she had lost $5,000 in wages. She was a station agent, and in returning from a train stepped upon snow and ice which had gathered in a hole in the chat platform, slipped, fell and was injured, and the trial occurred two years and ten months thereafter. After the accident, she was for fifteen months in defendant‘s hospitals, at defendant‘s expense, and under the care of defendant‘s physicians altogether for eighteen months. While in the hospitals, she was confined to her bed and suffered pain almost constantly, from uterine hemorrhage, spells of weakness and fainting, nervousness, insomnia, and a backward displacement of the uterus. Five months after the injury the appendix and right ovary were removed, and the ligaments shortened and curetted. During the last year before the trial she worked four and a half months at reduced wages, and during the time uterine hemorrhages persisted, and her nervous condition and physical weakness made it almost impossible for her to work at all. The jury, in her action based on the Federal Employers’ Liability Act, assessed her damages at $21,500; at the suggestion of the court she remitted $6,500 from the verdict, and judgment was rendered for $15,000. Held, that in this class of cases the amount of the award rests largely within the discretion of the jury, and there is nothing in the circumstances that requires this court to interfere in behalf of defendant with the final award.
Appeal and Error, 4 C. J., Section 2609, p. 701, n. 49. Damages, 17 C. J., Section 459, p. 1118, n. 22. Master and Servant, 39 C. J., Section 415, p. 290, n. 44; Section 468, p. 349, n. 48; Section 550, p. 434, n. 98; Section 897, p. 696, n. 33; Section 1411, p. 1228, n. 51.
AFFIRMED.
James F. Green and M. U. Hayden for appellant.
(1) The judgment in this case should be reversed, without remanding the cause for another trial, for the following reasons: (a) The petition does not state facts sufficient to constitute a cause of action against appellant. Nowhere in said petition is there any averment that appellant either knew, or, by the exercise of ordinary care could have known, of any of the alleged negligent conditions or that they, or any of them, had existed for a sufficient length of time to enable appellant, by the exercise of ordinary care, after knowing of said conditions, either actually or constructively, to have removed or repaired them and thus have prevented respondent‘s injury. Davidson v. Railway Co., 229 S. W. 786; Zitzmann v. Glueck Box Co., 276 S. W. 23. (b) The allegations of respondent‘s petition do not bring the case within the provisions of the Federal Employers’ Liability Act, as there is no averment that she was injured through the negligence of any officer, agent or employee of appellant, or that her injury was due to any defect or insufficiency in any of the appliances or equipment specified in said act.
Abbott, Fauntleroy, Cullen & Edwards for respondent.
(1) A station platform is the working place of a station agent, who is required to operate a truck across the platform to deliver and receive express, mail and messages from trains, and falls within the term “works” in the Federal Employers’ Liability Act. Elliott v. Payne, 293 Mo. 581; Dietzman v. Screw Co., 300 Mo. 196. (2) Where the defect in an appliance furnished by a master to a servant is a defect of construction, it is unnecessary to allege that the master had knowledge of the defect. 26 Cyc. 1144; 6 Thompson on Negligence (2 Ed.) p. 553; Dietzman v. Screw Co., 300 Mo. 196; Keitel v. Cable Ry. Co., 28 Mo. App. 657. (3) Due care on the part of a
HIGBEE, C.— The plaintiff sued the defendant under the
The evidence for the plaintiff is that she entered the employ of the defendant as a ticket agent at its station at Morefield, Arkansas, a station between Batesville and Magness, on March 20, 1919, and worked there in that capacity until July 2, 1919, when she began work for the defendant as station agent at Magness, a village having a population of about 400, during the absence of the regular agent, Mr. Eden, and served there in that capacity until a few days after she sustained her injuries on January 13, 1921, when Mr. Eden reported for duty. There were four passenger trains passing Magness daily, which were engaged in interstate commerce.
The station, a one-story building, 16 by 48 feet, faces to the north. The platform, ten feet wide and 300 feet long, between the station and the railroad track, was constructed of loose chat or small broken stones, laid on the surface of the ground. It is a foot higher at its north side than at the station. There were no gutters on the eaves of the roof of the station building, so that rain ran off the roof to the platform which drained to the west, wearing a channel in the chat along the north side of the building, and in front of the steps at the door into the waiting room, which door is at the west end of the station. When plaintiff was employed as station agent at Magness there was a depression about four feet square and three or four inches deep at the steps in front of this door, caused by the tramping of persons going in and
It was plaintiff‘s duty as station agent to do book work, sell tickets to passengers and handle the express, baggage and freight work. The petition and answer aver that the plaintiff and the defendant were each engaged in interstate commerce and it is averred in the answer that the particular train mentioned in plaintiff‘s petition; to which she was “required to deliver and from which she was required to receive express, mail and messages,” was a train which was operated by defendant and carried passengers and merchandise between the city of Newport, Arkansas, and the city of Joplin, Missouri. The suggestion of, or the making of, repairs in or about the station or the platform did not fall within the line of plaintiff‘s duties; such matters pertained to the duties of the section foreman or his superiors.
When plaintiff and her friend, Miss Fugett, retired on the evening of January 12, 1921 (plaintiff then lived in the station), the station platform was dry. There was a northbound passenger train scheduled to pass the station at 6:18 A. M. When plaintiff and Miss Fugett, at about 6:10 A. M., started out of the station to place the truck to receive the mail, baggage and express, it was dark and there were no lights on the platform; it had rained in the night and two or three inches of snow had fallen. The rain had filled these depressions and frozen. The ice in the hole in front of the door referred to was rough and uneven, but plaintiff did not know, nor did it occur to her, that there was or might be ice in these holes under the snow. She stepped off the west end of the
I. It is insisted that the petition does not state facts sufficient to constitute a cause of action, because it fails to allege that the defendant either knew or by the exercise of ordinary care could have known of the alleged negligent conditions, or that they had existed for a sufficient length of time to enable defendant, by the exercise of ordinary care, to have discovered and remedied them.
The petition alleges that at the time of plaintiff‘s injury, and for a long time prior thereto, the surface of the platform was composed of chat and fine gravel so loosely put together that depressions, holes or drains were formed in it; that the platform and station were so negligently constructed that the platform sloped towards the door of the station and the station had no gutters on the eaves of its roof; that a depression formed in front of the door to the station; that the chat or gravel was carried away from in front of said door by persons passing in and out of the station, and the water falling on the station and on the platform flowed towards this depression, forming a ditch, and that in cold weather, when rain, snow and sleet fell, ice formed in this ditch and depression, and formed a slick, ice-covered and irregular surface, rendering it unsafe and dangerous for a person to step into or upon; that when plaintiff slipped and fell, the depot platform was
“Where it appears from the complaint that the defect is a defect of construction, the authorities do not require an allegation of the employer‘s knowledge of the defect.” [6 Thompson‘s Comm. on Law of Negligence (2 Ed.) 533.]
“Where the defect in an appliance is shown to be structural and is of such a character as renders it unsafe it may be inferred that the employer was aware of the defect and an employee who has been injured by such an appliance need not show that the master knew that it was defective.” [26 Cyc. 1144, and cases cited in note 86.]
In Dietzman v. St. Louis Screw Company, 300 Mo. 196, 210, 254 S. W. 59, GRAVES, J., said: “Nor is there question as to the fact that defendant knew of the situation in ample time to have remedied it before the accident. In fact it constructed the place, and when it made it a working place, was bound to know its condition.”
Elliott v. Payne, 293 Mo. 581, 239 S. W. 851, was an action based on the
In Sankey v. Chicago, etc., Ry. Co., 118 Iowa, 39, 91 N. W. l. c. 821, the court said: “It is first urged that defendant cannot be held negligent because of the presence
Reasonable and ordinary care must be determined in the light of the dangers to be reasonably anticipated. The defendant must be presumed to know that many persons would pass over this platform and that holes or depressions would form in the loose chat or broken pieces of stone of which it was formed, particularly in front of the door to the waiting room; that rain would fill such holes with pools of water; that in the winter season these pools of water would freeze and were likely to be covered with snow and become unsafe for persons walking on the platform. In the exercise of ordinary care the defendant was bound to anticipate and make reasonable provisions for such contingencies; “for what a man knows and should know are equivalent in law.” [Benton v. St. Louis, 248 Mo. 98, 109, 154 S. W. 473; Schiller v. Kansas City Breweries Co., 156 Mo. App. 569, 577, 137 S. W. 607;
The contention is devoid of merit.
II. It is insisted that the allegations of the petition do not bring the case within the provisions of the
The Act (U. S. Comp. Stat. 1913, secs. 8657-65) reads in part:
“Every common carrier by railroad while engaging in commerce between any of the several states or territories, etc., shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.”
It is insisted that a station platform does not come within any of the appliances or equipment mentioned in the act. The act is remedial and should receive a liberal interpretation. From the general and comprehensive terms employed it would seem to have been the intention of the framers of the acts to extend its protection to an employee suffering an injury in the circumstances of the case in hand. A careful reading of the act does not incline us to the conclusion that the plaintiff‘s cause of
This question was considered in Elliott v. Payne, supra, and it was held that a depot platform is not the working place of a locomotive fireman. GRAVES, J., said (594): “Those employees whose duties require them to unload passengers, baggage or freight, might say that it was a working place, but to other employees it would be a mere way of ingress and egress. Deceased was not in an employment which required him to use the platform as a working place.”
We have seen that the defendant‘s answer avers plaintiff‘s duties required her to deliver to, and receive baggage, mail, express and messages from this particular train.
In appellant‘s statement learned counsel say: “A part of her [plaintiff‘s] duties consisted of operating the truck maintained at the station in the handling of express, baggage and mail. It was respondent‘s duty to meet all trains.”
It is clear, therefore, on principle and authority, that this platform was the plaintiff‘s working place while she was engaged in the performance of those duties and it was the duty of the defendant to exercise reasonable and ordinary care to keep and maintain it in a reasonably safe condition for the performance of plaintiff‘s duties thereon and that the petition stated facts sufficient to constitute a cause of action under the act in question.
III. We have briefly summarized the evidence adduced by the plaintiff and are of the opinion that it is sufficient to support the verdict, and that the court properly overruled the demurrer offered at the close of the case.
Plaintiff did not know or apprehend there was ice in the depression under the snow, nor did she appreciate the danger of stepping thereon, nor assume the risk of doing so.
In Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492, 34 S. C. Rep. 635, 640, the court said: “But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming, until he becomes aware of the defect or disrepair and of the risk arising from it, unless the defect and risk alike are so obvious that an ordinary prudent person under the circumstances would have observed and appreciated them. These distinctions have been recognized and applied in numerous decisions of this court.” [Cases cited.]
The court gave the following instructions for the plaintiff:
“The court instructs the jury that if you believe and find from the evidence that on and prior to January 13, 1921, the plaintiff was in the employ of the defendant as station agent at its station in Magness, Arkansas;
“And that the defendant maintained between its said station and its rails a platform, and that it was plaintiff‘s duty to pass over and along said platform and deliver to and receive from passing trains express, mail and other things carried by defendant, and to place a truck in position for receipt of same from defendant‘s trains;
“And if you believe that defendant‘s platform had been so hollowed out and worn away in front of the station door that a depression formed in front of said door in which water, falling on the roof of defendant‘s station and flowing over its platform, accumulated therein;
“And if you believe that on the night of the 13th of January, 1921, it rained, and that the rain, falling on the roof of defendant‘s station and on its platform, flowed into the depression in front of said depot door and formed a slick, ice-covered, irregular surface therein, and that same was at the times mentioned in the evidence covered with snow, and that said platform at that point was not level, but slanted towards the depression; and if you fur-
ther believe that sleet and snow fell upon said ice, if such you find, and thereby formed a slick and slippery surface in front of said station door which rendered said station platform not reasonably safe for a person to walk upon and pass over; “And if you further believe that the climatic conditions in and around Magness, Arkansas, at that season of the year were such that the defendant, as a reasonably prudent railroad operator, could reasonably have anticipated that rain, sleet and ice would fall and accumulate in said depression, and after so accumulating, was likely to freeze and thereby form a slick and slippery and irregular surface, unsafe for persons to pass over;
“And if you further believe that the plaintiff fell and was injured while in the course of her employment and in the act of passing over defendant‘s platform into defendant‘s station because of and on account of the slick and slippery irregular slanting surface (if you so find the fact to be), in front of said station; and if you further find and believe from the evidence that no freeze had theretofore taken place while she was in Magness;
“And if you further believe that the defendant could, by the exercise of ordinary care, have erected and maintained said station platform so as to prevent it from becoming unsafe (if you find it was unsafe) in rainy and freezing weather, and that the defendant negligently failed to so erect and maintain its platform; and if you find that plaintiff did not assume the risk of injury as explained in other instructions, then you will find for the plaintiff.”
The court also gave instructions numbered 2, 3, 4 and 5 for the defendant, as follows:
“2. You are instructed that the mere fact that plaintiff may have been injured while in the employ of the defendant is not alone sufficient to entitle her to recover in this case, but, on the contrary, in addition to proving that she was injured, the burden is upon plaintiff to establish by the greater weight of the evidence
that she was injured as the direct and proximate result of some one or more of the acts of negligence alleged in her petition. “3. The court instructs the jury that if you find and believe from the evidence that at the time when plaintiff claims to have been injured the defendant was engaged in commerce between different states of the United States, to-wit, between the State of Arkansas and the State of Missouri, and that at said time plaintiff was employed by defendant as a station agent at Magness, Arkansas, and that said station was located on defendant‘s line of railroad between the city of Newport in the State of Arkansas and the city of Joplin in the State of Missouri, and that the train mentioned in the evidence, to which plaintiff was required to deliver and from which she was required to receive express, mail and messages was a train which was operated and carried passengers and merchandise between said city of Newport, Arkansas, and said city of Joplin, Missouri, then you are instructed that both defendant and the plaintiff were at said time engaged in interstate commerce.
“4. You are further instructed that if you find and believe from the evidence that at the time when plaintiff claims to have been injured she and defendant were engaged in interstate commerce, as defined in other instructions, and if you further find and believe from the evidence that there were certain depressions or uneven places in the platform of defendant‘s station at Magness, Arkansas, or certain slants or slopes in said platform in which water might accumulate and in which snow, sleet or ice could or did accumulate, and if you further find and believe from the evidence that such conditions had existed for some time prior to the date on which plaintiff claims to have been injured and that during such time plaintiff had been employed by defendant as station agent at said station, and if you further find and believe from the evidence that plaintiff either knew or by the exercise of ordinary care for her safety could have known of such
conditions, if any, and if you further find and believe from the evidence that on the occasion of her injury, if any, such conditions, if any, were all open and obvious to plaintiff while passing over said platform and that the danger of slipping on any ice in or upon said platform was known to and appreciated by the plaintiff or by the exercise of ordinary care on her part could have been known and appreciated by her, then you are instructed that the plaintiff assumed all risks of injury likely to result therefrom while passing over said platform and is not entitled to recover in this case. “5. The court instructs the jury that it was the duty of the plaintiff while in the employ of defendant and especially while proceeding across the station platform to exercise ordinary care for her own safety, and while in this case, even though you should find and believe from the evidence that on the occasion of plaintiff‘s injury, if any, she failed to exercise ordinary care to see and avoid coming in contact with whatever depression, if any, and with whatever ice, if any, there were in or on said platform, and that such failure on her part, if any, directly caused her to slip and fall, if you so find, such failure can and does not bar her right to recover. Nevertheless, in the event that you find for plaintiff, the damages which you may award to her shall be diminished by you in proportion to the amount of such failure on her part to exercise ordinary care for her safety, if you find she did so fail, as set out herein, attributable to her.”
These instructions were very favorable to the defendant, and in fact put an unnecessary burden on plaintiff. Instruction 4 required her to exercise ordinary care to discover the dangerous conditions mentioned in the instruction. This requirement is in conflict with the McIntyre and other cases cited supra. Under the instructions the jury found that plaintiff did not assume the risk and hazard of slipping and falling on the ice while in the discharge of her duties. Other instructions asked
V. Appellant complains that plaintiff‘s instruction authorized the jury to consider facts not proven, and assumed as true facts which were controverted, and broadened the averments of the petition or the scope of the evidence. Appellant says:
1. There was no evidence that the platform had been so hollowed out and worn away in front of the station door that a depression formed there in which water accumulated. 2. The jury was not required to find that the alleged negligent condition was known to defendant or had existed long enough that appellant knew, or by the exercise of ordinary care would have known of its existence. 3. There was no evidence that the climatic conditions were such that a reasonably prudent railroad operator could reasonably have anticipated that rain, sleet and ice would fall and accumulate and freeze, etc.
There was ample evidence that the depression had worn and formed in front of the door of the station and that it was there when plaintiff was employed as station agent at Magness. The second proposition we have already considered. There was ample evidence as to the climatic conditions at Magness. The rain filled these holes or depressions; the water did freeze and snow fell and covered the ice. There is no contention that this was unusual or phenomenal; in fact, there was proof that ice had theretofore formed in holes in this platform. Several witnesses referred incidentally to rain, snow and ice at Magness in the winter seasons. It is a matter of common knowledge that climatic conditions of this character may be anticipated in the month of January in the northern part of Arkansas. [Christy v. Wabash Ry. Co., 195 Mo. App. 232, 241, 191, S. W. 241; 23 C. J. 140, sec. 1964.] There is no merit in these contentions. This question was submitted by defendant‘s Instruction 4.
Under the Federal act, on which this action is based, contributory negligence of the employee is not a bar to an action for damages.
In Great Northern Railway Company v. Wiles, Administrator, 240 U. S. 444, 36 Sup. Ct. Rep. 406, a rear brakeman of a parted freight train, disregarding his duty to protect the rear of the train by going back and giving signals which the rules required, remained in the caboose and was killed by a passenger train, which he knew was closely following, and ran into the caboose. It was held that the brakeman‘s disobedience of the rule was the causal negligence, there being no claim that the passenger train was negligently run. Davis v. Kennedy, 266 U. S. 147, and Freese v. Railway Co., are also cited, but they are not in point.
VII. Appellant insists the verdict is excessive. Plaintiff was hurt on January 13, 1921; prior to that time she enjoyed good health; the suit was brought November 17, 1922; the trial was on November 14, 1923, two years and ten months after the date of the injury. She was in the Missouri Pacific hospitals fifteen months at the defendant‘s expense, and under the care of
Plaintiff‘s injuries are in some respects similar to those sustained by the plaintiff in Brickell v. Flemming, 281 S. W. 951, except that Mrs. Brickell suffered a disfiguring scar on her cheek. In that case a verdict for $18,000 was affirmed. In Barr v. Kansas City, 121 Mo. 22, 23, 25 S. W. 562, it was said that “injuries of the character disclosed, are far more serious than the loss of a limb, without internal injuries.” A verdict for $10,000 was sustained. In Evans v. General Explosives Company, a verdict for $20,000 for the loss of an arm, torn off at the shoulder, was held not excessive. [See Mayme v. K. C. Railway Co., 229 S. W. 386.] In Caldwell v. Payne, 246 S. W. 312, it was held, In Banc, that $15,000 for the loss of an arm below the elbow by a railroad engineer, aged forty, was not excessive. In this class of cases “the amount of the award rests largely within the discretion of the jury.” [17 C. J. 870.] We see nothing in the cir-
The judgment is therefore affirmed. Railey, C., not sitting.
PER CURIAM: — The foregoing opinion of HIGBEE, C., is adopted as the opinion of the court. All of the judges concur.