122 N.Y. 18 | NY | 1890
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *20
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *21 The plaintiff made no complaint of the existence of a nuisance upon defendant's property prior to 1880, when defendant first introduced the use of naphtha in the manufacture of its gas, and it was a disputed question on the trial, upon which there was a strong conflict of testimony, whether the smells from the defendant's works, after it began to use naphtha, were more offensive than when it used coal.
This question, it must be assumed, the jury determined in favor of the plaintiff's contention.
The court charged the jury that, to constitute a nuisance, it was essential that the smells and odors from the defendant's works should be sufficient "to contaminate and pullute the air and substantially interfere with the plaintiff's enjoyment of her property," and that the question for them to determine was: "Did the odor pollute the air so as to substantially render plaintiff's property unfit for comfortable enjoyment." An exception was taken by the defendant to this part of the charge.
The rule stated by the learned judge was in accordance with all the authorities. If one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages, and it is not necessary to a right of action that the owner should be driven from his dwelling; it is enough that the enjoyment of life and property be rendered uncomfortable. (Rex v. White, 1 Burr, 337; S.H.S. Co. v.Tipping, 11 H.L. Cas. 642; Fish v. Dodge, 4 Denio, 311;Catlin v. Valentine, 9 Paige, 575; Campbell v. Seaman,
It was claimed by the defendant, and the court refused a request to charge, "that unless the jury should find that the *24 works of the defendant were defective, or that they were out of repair, or that the persons in charge of manufacturing gas at these works were unskillful and incapable, their verdict should be for the defendant;" and "that if the odors which affect the plaintiff are those that are inseparable from the manufacture of gas with the most approved apparatus and with the utmost skill and care, and do not result from any defects in the works, or from want of care in their management, the defendant is not liable." An exception to this ruling raises the principal question discussed in the case.
While every person has exclusive dominion over his own property and may subject it to such uses as will subserve his wishes and private interests, he is bound to have respect and regard for his neighbor's rights.
The maxim "Sic utere tuo ut alienum non laedas" limits his powers. He must make a reasonable use of his property, and a reasonable use can never be construed to include those uses which produce destructive vapors and noxious smells, and that result in material injury to the property and to the comfort of the existence of those who dwell in the neighborhood.
The reports are filled with cases where this doctrine has been applied, and it may be confidently asserted that no authority can be produced, holding that negligence is essential to establish a cause of action for injuries of such a character. A reference to a few authorities will sustain this assertion.
In Campbell v. Seaman (supra) there was no allegation of negligence in the complaint, and there was an allegation of due care in the answer. There was no finding of negligence, and this court affirmed a recovery.
In Heeg v. Licht (
The principle, that one cannot recover for injuries sustained from lawful acts done on one's own property without negligence and without malice, is well founded in the law. Every one has the right to the reasonable enjoyment of his own property, and so long as the use to which he devotes it violates no rights of others, there is no legal cause of action against him.
The wants of mankind demand that property be put to many and various uses and employments, and one may have, upon his property, any kind of lawful business, and so long as it is not a nuisance, and is not managed so as to become such, he is not responsible for any damage that his neighbor accidently and unavoidably sustains. Such losses the law regards as damnumabsque injuria. And under this principle, if the steam boiler on the defendant's property, or the gas retort, or the naphtha tanks had exploded and injured the plaintiff's property, it would have been necessary for her to *26
prove negligence, on the defendant's part, to entitle her to recover. (Losee v. Buchannan,
But where the damage is the necessary consequence of just what the defendant is doing, or is incident to the business itself, or the manner in which it is conducted, the law of negligence has no application and the law of nuisance applies. (Hay v. CohoesCo.,
The exception to the refusal to charge the first proposition above quoted was not, therefore, well taken.
It is contended, however, by the defendant, that the acts of the legislature relating to gas companies are a protection from liability for consequential injuries flowing from the manufacture of gas, or the prosecution of the business, when want of care forms no element of the cause of injury, and it is sought to apply to this case the broad principle that that which the law authorizes cannot be a nuisance, although it may occasion damages to individual rights and property.
The cases cited to sustain this proposition are ones where municipal corporations were engaged in grading and improving public streets and highways. (Radcliff v. Mayor, etc.,
In these cases, in doing the acts complained of, the defendants acted in the performance of a public duty imposed upon them by the legislature, or in the exercise of a right conferred by law, and it is well settled that persons appointed or authorized by law to perform a public duty, or to do acts of a public character are not answerable for consequential damages if they act within their jurisdiction and with care and skill. (Trans. Co. v.Chicago, supra; Uline v. N.Y.C. H.R.R.R. Co.,
This principle cannot, however, be applied to cases like the one under consideration. *27
The defendant is incorporated under chapter 37, Laws of 1848, which authorizes in general terms the creation of corporations for manufacturing and supplying illuminating gas. It acquired by that act its corporate life and character, and the power to purchase and hold such real and personal property as might be necessary to enable it to carry on its business.
By section 18 of the act named, it is given the power to lay its conductors through the streets of the city, village or town in which it is located, with the consent of the municipal authorities of such city, etc., and by chapter 311 of the Laws of 1859, it is required to furnish gas to any applicant within 100 feet of its mains.
It may be conceded that the business of manufacturing and distributing gas through the public streets for public and private use is a business of a public character, and the individual possessing such right has a franchise granted by the state for a public object, and that it meets a public necessity for which the state may make provision.
But the state has not seen fit to confer upon the corporations formed under the act cited, the power of eminent domain, and they cannot, therefore, locate their works where they will.
In their ability to acquire real estate upon which to establish their manufactury, they have no greater power than any citizen of the state, and having acquired property they rest under the same obligation as other citizens, to make a reasonable use of it and to respect and regard the rights of their neighbors.
The proposition contended for by the learned counsel for the defendant has, in recent years, received full consideration in the courts of England and of this country, and the rule is now established that the statutory authority which will justify an injury to private property and afford immunity for acts which would otherwise be a nuisance must be express, or must be a clear and unquestionable implication from powers expressly conferred, and it must appear that the legislature contemplated the doing of the very act which occasioned the injury. (Cogswell v. N.Y.,N.H. H.R.R. Co.,
In Pottstown Gas Co. v. Murphy, the Supreme Court of Pennsylvania said: "The principle invoked applies only when an incorporation clothed with a portion of the state's right of eminent domain takes private property for public use on making proper compensation, and when such damages are not a part of the compensation required."
In Eames v. N.E. Worsted Co., Chief Justice SHAW said: "The Mill Act affords no warrant or justification for erecting or maintaining a nuisance."
In Commonwealth v. Kidder, in considering the effect of a statute authorizing the storing and manufacturing of naphtha and petroleum, the Supreme Court of Massachusetts said: "The reasonable, if not necessary, inference is that it was not the intention of the legislature to establish a new rule in this regard, but to leave the question whether the manufacturing is carried on at such places and in such a manner as to be unwholesome and offensive to the public, and on that account indictable as a nuisance, to be determined by the rules of the common law."
In B. P.R.R. Co. v. Fifth Bap. Ch., it was said: "The authority of the company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them where it may think proper without reference to the property and rights of others. Grants of privileges or power to corporate bodies like those in question confer no license to use them in disregard of the private rights of others, and with immunity for their invasion."
And in Hill v. Managers of Met. Asylum Dist., Lord WATSON said: "When the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put in execution or not, I *29 think the fair inference is that the legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected."
There is nothing in Truman v. L.B. S.C.R. Co., L.R. [25 Ch. Div.] 45) conflicting with this rule.
The House of Lords in that case recognized fully the rule applied in Hill v. Managers of Met. Asylum Dist., and held that the purpose for which the land was acquired by the defendants being expressly authorized by the act of parliament, and being incidental and necessary to the authorized use of the railway for cattle traffic, the company were authorized to do what they did.
The legislature may authorize acts which would otherwise be a nuisance when they affect or relate to matters in which the public have an interest, or over which the public have control, such as highways or public streams.
In such cases the legislative authorization exempts from liability to suits civil or criminal at the instance of the state, but it does not affect the claims of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large. (Crittenden v. Wilson, 5 Cow. 165; Brown v. C. S.R.R. Co.,
These views lead to the conclusion that the defendant obtained no immunity from liability for consequential injuries sustained by property surrounding its works by reason of its incorporation, or the privilege conferred upon the business by the acts of the legislature, and that the facts of the case do not take it out of the operation of the rules of law applicable to ordinary common-law nuisances.
The legislature has given to the corporations created to manufacture gas the right to lay down their conductors in the public streets subject to the control and regulation of the municipal authorities, and for acts done in the execution of that privilege they are exempt from prosecution at the suit of the people. *30
The choice, however, of the place to locate their works, and the selection of materials from which to manufacture gas, has been left to the corporations, and those things must be performed with reference to the rights of others.
The fact appears in this case that for twenty years the defendant conducted its business without annoyance to anyone. For the sake of economy (so it alleges) it adopted, in 1880, a new process and new materials from which to make its gas. The result, under the finding of the jury, has been to impair the value of the plaintiff's property and substantially interfere with its comfortable enjoyment. If the defendant's contention should prevail, there would be no restraint upon the location of the business, and no limit to the offensive character of the materials it might use. It would thus have an immunity which the law denies to every other citizen.
We think the proof permitted the conclusion that the defendant had created a nuisance, and that there was no error in the charge of the court, or the refusal to charge.
The judgment must be affirmed.
Dissenting Opinion
This action was brought to recover damages alleged to have been sustained by the plaintiff in consequence of offensive odors proceeding from the gas-works of the defendant, and to obtain an injunction restraining the defendant from permitting further emissions of such odors.
The complaint alleges negligent and unskillful construction of the works, and also negligence in the use and maintainance thereof.
The trial resulted in a verdict for damages, upon which the court awarded a judgment for an injunction.
Upon the trial it appeared that the defendant was incorporated under chapter 37 of the Laws of 1848 for the purpose of manufacturing and supplying the streets, public places and inhabitants of the village of Port Jervis with illuminating gas; that its works were constructed in the year 1860 upon lands purchased for that purpose, since which time it has continued the manufacture of gas; that prior to 1880 coal was used in *31 such manufacture, but since that time naphtha has been used instead; that in making the change from coal to naphtha two storage tanks were constructed, one of which was constructed near to the plaintiff's premises. It further appeared that the plaintiff lived upon the premises adjoining those of the defendant and that she had been the owner thereof since the year 1878. It further appeared that in all works with the most approved apparatus and managed with the utmost skill and care there was some odor which was inseparable from the manufacture of gas.
It was claimed upon her part that prior to 1880 there was a smell of gas coming from the works of the defendant, but not near as strong as since the change to naphtha; that since that time the air has been impure and that there has been a disagreeable smell at all times; that at certain times it is greater than at others, causing a nauseous disagreeable feeling, obliging her to close the windows of her house to keep out the smells. Whilst on the part of the defendant it was claimed that the odor proceeding from the works was not near as strong since the change from coal to naphtha; that the works were constructed in the best possible manner, according to plans of the most approved character and were managed in the highest degree of care and skill.
In submitting the case to the jury the defendant's counsel asked the court to charge "that unless the jury find that the works of the defendant were defective or that they were out of repair, or that the persons in charge of manufacturing gas at the works were unskillful and incapable, their verdict should be for the defendant;" also, "that if the odors which affected the plaintiff were those that were inseparable from the manufacture of gas with the most approved apparatus and with the utmost skill and care and do not result from any defect in the works, or from want of care in their management, the defendant is not liable in this action;" and also, "that if the jury find that the plaintiff became the owner of the premises described in the complaint after the erection of the defendant's works, and after it was engaged in the manufacture of gas *32 therein, she took them subject to such odors as were inseparable from the manufacture of gas conducted in the most careful and skillful manner and with the most approved machinery for that purpose." These requests were severally refused, and an exception taken, and the court charged the jury that "if this defendant's works gave out foul odors or noxious vapors to an extent sufficient to contaminate or pollute the air and substantially to interfere with the plaintiff's enjoyment of her property, then that would be a nuisance as against her and this plaintiff would be entitled to recover," to which charge the defendant excepted.
The question is thus presented as to whether the works of the defendant are, in the absence of negligence either in their construction or operation, a nuisance per se, for if the odors emanating therefrom are inseparable from the manufacture of gas with the most approved apparatus and with the utmost skill and care, and do not result from any defects in their management, it follows that all works for the manufacture of gas are nuisances as to those living near enough to the plant to be affected by the odor, even though they located there subsequent to the works. The question is one of importance. It is not free from difficulty, and the authorities treating upon the subject are not in entire harmony.
A nuisance, as it is ordinarily understood, is that which is offensive and annoys and disturbs. A common or public nuisance is that which affects the people and is a violation of a public right either by direct encroachment upon public property or by doing some act which tends to a common injury or by the omitting of that which the common good requires, and which it is the duty of a person to do. Public nuisances are founded upon wrongs that arise from the unreasonable, unwarrantable or unlawful use of property, or from improper, indecent or unlawful conduct working an obstruction or injury to the public and producing material annoyance, inconvenience and discomfort. Founded upon a wrong it is indictable and punishable as for a misdemeanor. It is the duty of individuals to observe the rights of the public and to refrain from the doing of that *33
which materially injures and annoys or inconveniences the people, and this extends even to business which would otherwise be lawful, for the public health, safety, convenience, comfort or morals, is of paramount importance, and that which affects or impairs it must give way for the general good. In such cases the question of negligence is not involved, for its injurious effect upon the public makes it a wrong which it is the duty of the courts to punish rather than to protect. But a private nuisance rests upon a different principle. It is not necessarily founded upon a wrong, and consequently cannot be indicted and punished as for an offense. It is founded upon injuries that result from the violation of private rights and produce damages to but one or few persons. Injury and damage are essential elements, and yet they may both exist and still the act or thing producing them not be a nuisance. Every person has a right to the reasonable enjoyment of his own property, and so long as the use to which he devotes it violates no rights of another however much damage others may sustain therefrom, his use is lawful and it is damnum absqueinjuria. (Thurston v. Hancock,
So that a person may suffer inconvenience and be annoyed and if the act or thing is lawful and no rights are violated it is not such a nuisance as the law will afford a redress; but if his rights are violated, as for instance if a trespass has been committed upon his land by the construction of the eaves of a house so that the water will drip thereon, or by the construction of a ditch or sewer so that the water will flow over and upon his premises, or if a brick kiln be burned so near his premises as that the noxious gases generated therefrom are borne upon his premises killing and destroying his trees and vegetation, it will be a nuisance for which he may be awarded damages. (Campbell v.Seaman,
Hence it follows that in some instances a party who devotes his premises to a use that is strictly lawful in itself may, even though his intentions are laudable and motives good, violate the rights of those adjoining him, causing them injury and damage and thus become liable as for a nuisance. It, therefore, *34 becomes important that the courts should proceed with caution and carefully consider the rights of the parties and not declare a lawful business a nuisance except in cases where rights have been invaded resulting in material injury and damage. People living in cities and large towns must submit to some inconvenience, annoyance and discomforts. They must yield some of their rights to the necessity of business, which, from the nature of things, must be carried on in populous cities. Many things have to be tolerated that under other circumstances would be abated, the necessity for their existence outweighing the ill results that proceed therefrom. Therefore, as to business which is lawful and reasonable and is not of itself a nuisance when properly conducted, which is carried on upon ones own premises, invading no right of a neighbor, is not such a nuisance as the law will afford redress, even though it produces an inconvenience and annoyance, unless such inconvenience and annoyance is the result of negligence and carelessness; but where the business is of that character as to become a common nuisance the damages may be recovered even though no negligence is shown. (Rockwood v.Wilson, 11 Cushing, 221-226.)
The distinction between the two cases is that in the former the business is not of that nature as to injuriously affect others, but may become so by the negligent manner in which it is carried on; whilst in the latter case the nature of the business is such as must necessarily be injurious, even though managed with the greatest care and skill. (Wood's Law of Nuisances [2d ed.], § 127.)
Again, there is another class of cases in which the question of negligence is material, as, for instance, where the legislature has authorized the doing of that which would otherwise be a nuisance. In such cases the person is shielded from liability for damages that ensue, unless he is chargeable with negligence for the manner in which the act was done. (Radcliff v. Mayor,etc.,
As, for instance, a person may be annoyed and inconvenienced by the noise and tread of passing railroad trains, and yet where the railroad is lawfully built and is managed with proper care and skill, it is not a nuisance, even though it passes near to a dwelling-house and materially disturbs the quiet and slumber of the occupants. (Beseman v. P.R.R. Co.,
But the authority of the legislature should doubtless be express (Cogswell v. N.Y., N.H. H.R.R. Co.,
We are thus brought back to the question as to whether the business of manufacturing gas by the defendant is in and of itself a nuisance. As we have seen, the defendant was incorporated under the general laws of the state for the purpose of manufacturing illuminating gas, and under the provisions of chapter 311 of the Laws of 1859, section 6, it is required to furnish gas for lighting purposes to any applicant within 100 feet of any main laid by it for the distributing of gas. It is subject to legislative control and its meters to the inspection and test of the public inspector appointed by the governor for that purpose. The legislature may give it the power to exercise the right of eminent domain, and the discharge of its duty to individuals, and the public may be compelled by mandamus. (People ex rel. Kennedy v. M.G.L. Co., 45 Barb. 136;Williams v. M.G. Co.,
It is, therefore, a business of a public nature and utility, for which the state can control and make provision. Justice HARLAN, in delivering the opinion in the case of New Orleans GasCo. v. Louisiana Light Co. (
It is undoubtedly true that in the manufacture of gas the escape of some is unavoidable, and it may inconvenience those who live in the immediate vicinity of the works, but the necessities of the people living in large cities and villages imposes some inconvenience to others and has compelled recognition of the principle that each member of society must submit to annoyances consequent upon the use of property, provided such use is reasonable as respects the owner and those immediately affected in view of time, place and other circumstances. (St. HelensSmelting Co. v. Tipping, 11 H.L. Cas. 642-646; Cooley on Torts, 598-601.)
We are aware that a different view has been expressed in reference to gas-works. Carhart v. A.G.L. Co., 22 Barb. 297-312.)
But, notwithstanding this, our conclusions are that, in view of the circumstances, the public character and utility, the business is lawful, authorized by the legislature and that it is not a nuisance if properly conducted. It may, however, be carried on in such a manner as to unnecessarily affect and injure others, in which case it would become a nuisance. If we are correct in this view the question of negligence was involved in the case and should have been submitted to the jury. As we have seen, time, place and circumstances have an important bearing upon the question. A person may negligently select an improper place for the establishment of his business. That which would be proper and tolerated in one locality would not be in another. Negligence may also exist in the construction as well as in the management and operation. Each person should conduct his business with the best *37 approved apparatus, with such skill and care as experienced and prudent persons may possess, in order that he may do his neighbor as little harm as possible. (People v. Sands, 1 Johns. 78-88.)
We do not understand it to be claimed that the defendant was guilty of maintaining a public nuisance, or that it is chargeable with any fault or negligence in the selection of the locality in which it erected its works. It is claimed that they were constructed of the best material according to the best known plan and operated with the highest degree of skill and care. For twenty years they were operated without complaint. The plaintiff subsequent to the location of the defendant purchased the adjoining property and took up her residence thereon. It is true that she claimed to be affected from the odors that came from the naphtha tank constructed near her premises and that that was constructed after she became a resident there. It is possible that the defendant negligently located its tank in an improper place, but that question was not submitted to the jury. Neither was the question as to whether the odors proceeding from this tank produced the nuisance. The question submitted was as to whether the odors proceeding from the entire gas-works constituted a nuisance. It was also true that there was some evidence tending to show that the plaintiff's health had been affected. She testified that on some occasions she had been affected with nausea, but the question as to whether the works affected the health of the public or of the plaintiff was not submitted. On the contrary, it was expressly taken from the jury by the instruction to which the exception was taken, in which the court stated that it would be a nuisance "whether it affected the health of the plaintiff and her family or not."
Thus far we have proceeded upon the theory that the business was lawful, proper and reasonable, and was not a nuisance if properly managed and conducted, and that consequently the question of negligence was involved. But we are also inclined to the view that the business is authorized by the legislature, and is for that reason protected, unless negligence *38 may be shown. As we have seen, the business is of public nature and utility, subject to the control of the legislature, and all individuals living upon the lines of its pipes may demand and enforce service therefrom. It was authorized to acquire land by purchase on which to erect its works. It is true the legislature has not expressly designated any particular lot or parcel of land upon which its works should be erected. The selection of the place was left to the company, and in making its selection, it was doubtless bound to take into consideration the nature of the business and the surrounding locality and so locate as to produce as little harm to others as possible. As we have seen, no complaint has been made in reference to the selection of the locality that was made by the defendant in 1860. The authority to manufacture and supply gas for lighting the streets, public and private buildings of the village of Port Jervis, is express, and if it is conducted in a proper place, with the most approved apparatus, with the utmost skill and care, and without the escape of odors that are not inseparable from such manufacture there can be no liability for consequential injury to others.
The learned General Term was of the opinion that the case ofCogswell v. N.Y., N.H. H.R.R. Co. (supra), held adversely to this view, but we do not so understand that case. The New York and New Haven railroad company had purchased a lot adjacent to the plaintiff's dwelling and had erected thereon an engine-house and coal-bins for the use of its roads. The engine-house was designed to accommodate eleven locomotives and had eleven smoke-stacks extending above the roof to about the height of the third-story window of plaintiff's house. The coal-bins were unprovided with covers to prevent the dust from the coal stored therein from passing into and upon the plaintiff's dwelling. The smoke, gases, soot, and cinders from the smoke-stacks and the dust from the coal-bins when loading and unloading the coal produced the damage complained of. The facts found clearly established negligence. The court it is true, held that in that case the defendant was not protected by any authority that it *39 had from the legislature, there being no express authority for the selection of the lot on which this engine-house was constructed and that the selection made was an improper one. Our views are fully in accord with the principles decided in that case.
In the case of Heeg v. Licht (
We have already shown that any business which endangers the safety or health of others is a common nuisance and must give way for the public good, and that in such cases negligence was not involved. The keeping of gunpowder may not constitute a nuisanceper se; that depends upon the locality and quantity. A thimbleful might not be dangerous, whilst fifty barrels full might be. It thus becomes a question of fact as to whether it is dangerous, and if it is found to be then it is a nuisance perse. The court very properly distinguished this case from those in which the business engaged in is lawful and not dangerous, which, in and of itself, is not a nuisance when properly conducted, but may become such by the negligent manner in which it is carried on.
The claim that the defendant, in order to be brought within the protection of the statute, must have the right of eminent *40 domain and acquire the land upon which its works are constructed by proceedings to condemn is not sustained by any well considered case. What difference can it make whether the land is acquired by voluntary purchase or by proceedings to condemn? It is the business which is expressly authorized by the statute, and in order to carry it on the right to acquire land on which to conduct it is given. As we have already shown, no claim has been made that the defendant's works were improperly located, and it is, consequently, not apparent how the question of location can deprive it of the protection of the statute. It is true that a railroad corporation is given the right of eminent domain, and may acquire lands for the purposes of its incorporation by proceedings to condemn, but in order to institute such proceedings it must be shown that they are unable to agree upon the purchase thereof. If they can agree then the proceedings cannot be instituted. Can it be that such a company would be liable for the maintaining of a nuisance by reason of the noise, jar and smoke of its passing trains, because it has acquired the right of way by voluntary purchase instead of by proceedings to condemn? We think not. The answer would be that it makes no difference how the company acquired the title to the land upon which it was operating its road.
The defendant's business is of a public nature and utility. If it is a nuisance per se, and without the protection of the statute, an individual may procure it to be enjoined and thus drive it from place to place whilst another individual, living upon the line of its mains, may compel the company, by mandamus, to proceed with its business and supply his residence with illuminating gas, thus producing a condition in which the company would be liable if it did, and would also be liable if it did not.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur with BROWN, J., except FOLLETT, Ch. J., and HAIGHT, J., dissenting.
Judgment affirmed. *41