192 So. 95 | La. | 1939
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *677 The judges of the Court of Appeal for the Second Circuit of Louisiana, availing themselves of the provisions of Section 25 of Article 7 of the Constitution of 1921, have submitted for our instruction a question of law which arises in the above entitled case pending before them on rehearing. In their original decree, they had affirmed the judgment of the lower court in favor of the plaintiff.
The facts of the case as certified to us, and accepted by both plaintiff and defendant, are as follows:
"The town of Lake Providence is a municipal corporation chartered under the laws of the State of Louisiana. It owns and operates the light and water utilities used there. Mr. E.J. Chaney is and has been for many years the superintendent and manager of the town's light and water department. Among his many duties were *679 the overseeing of the installation of house connections and the extension of water mains, and, in the event of fire, to be present at the plant and assure the maintenance of an adequate water pressure. He was required to go to various parts of the town whenever necessary, whether day or night.
"Full authority for the employing and discharging of persons in connection with the ordinary work of the department was his. However, the designation of fixed employees, such as an assistant or assistant engineer, required the approval of the town's mayor and aldermen. He was also empowered to purchase materials needed by the department.
"The Town of Lake Providence purchased for and furnished to Mr. Chaney, for use in the performance of his work, a Ford coupe. The machine was kept at his residence at night, with the permission of the governing authorities, to facilitate the discharge of his duties.
"On the night of January 3, 1936, the superintendent went to his home and ate supper. He then asked his son John Chaney, who was in his eighteenth year and lived at the father's home, to accompany him in the town's car to the Providence Motor Company, located in the municipality. His purpose in going there was to obtain his personal car, on which repairs had been made, and his son was taken along to drive one of the automobiles back. On arriving at their destination the son remained in the Ford coupe while the superintendent went inside. He observed the repairs made on his car, and also entered into a discussion with a representative of the automobile company *680 regarding the purchase of some tires for a truck that belonged to the town. He does not remember whether or not he had the tires in mind when he went there; however, previous thought had been given to such a purchase. The discussion caused a delay, so he directed his son to drive the town car back to his home and store it for the night, where it might be had in case he needed it. The son was not an [regular] employee of the town then, but he had previously worked for the utilities department on several small extra jobs. (Brackets ours.)
"The son proceeded to obey the directions given him, and while driving the car toward the designated place of storage it struck and severely injured the plaintiff herein. She instituted this suit against the Town of Lake Providence and the liability insurer of the automobile, asking an award of damages for her injuries."
The question submitted for our instruction is: "Assuming that the driver of the automobile, the superintendent's son, had the last clear chance to avoid the accident, but failed in his duty to do so, under the facts and circumstances above stated is the Town of Lake Providence legally responsible for the damages occasioned by his negligence?"
The town of Lake Providence is authorized, under the provisions of Act 136 of 1898 (section 13), as amended by Act 181 of 1914 and Act 135 of 1916, to own and conduct the business of furnishing electricity and water to the inhabitants thereof. When engaging in such venture the corporation represents the pecuniary and proprietary *681
interest of individuals, and its liability for damages occasioned by the negligence of its officers, employees, and agents in connection with such enterprises, is governed by the rules applicable to any private corporation or individual engaged in a similar business. See the City of New Orleans v. Kerr et al., 50 La.Ann. 413, 23 So. 384, 69 Am.St.Rep. 442; Gann v. Great Southern Lumber Co.,
This liability of an individual or corporation for the tortious acts of its agents, officers, or employees, and the liability of a master for the tortious acts of his servant is grounded upon the maxim of respondeat superior and is to be determined "* * * by considering, from the factual standpoint, the question as to whether or not the tortious act was done while the agent or servant was acting within the scope of his employment." 2 American Jurisprudence 278, 279. See, also, Gaillardet v. Demaries,
In the instant case the defendant contends that the plaintiff is not entitled to recover against the town for the reason that: "At the time of the accident John Chaney was not driving the car as the agent or employee of the Town of Lake Providence, was not engaged in the course or scope of any employment by the Town, and was not pursuing the business or benefit of the Town." In support of this contention the defendant relies on the ruling of this court in the case of James v. J.S. Williams Son, Inc.,
In that case the defendant company owned and operated an undertaking establishment in the city of Shreveport and employed one Roy Rhodes to drive its funeral car which was kept in a garage at defendant's place of business. One evening, after the day's work was done, one Jemison, a helper in the establishment, requested Rhodes to take him home in the funeral car. Rhodes did so and while on the way back to defendant's garage where he intended to store the car for the night, he ran over plaintiff and injured her. In the course of the opinion this court said:
"It would be wholly illogical to hold that when a chauffeur takes his employer's automobile without authority and uses it for a mission of his own, his employer is not responsible for his negligent acts while on the outgoing trip, but is responsible for *683 such acts while he is on his way back, because if the outgoing trip is unauthorized and beyond the scope of the employee's employment, the incoming trip is likewise so, being a continuation and part of the same unauthorized mission. An employee may suspend his contractual relations with his employer by temporarily departing from the scope of his employment and going on a mission of his own or for another, and, when he does, that relationship is suspended during the entire time he is on such mission, and not half the time.
"If a chauffeur suspends his contractual relations with his employer by taking and using his employer's car for his own private purposes, as relates to the use of the car for the purpose taken, he is in law a stranger to the owner and his use of it is unlawful, as much so as if he were not employed by the owner in any capacity. It would hardly be contended that if a stranger went to a garage, took an automobile and used it for a joy ride, the owner of the car would be responsible for the negligent acts of the trespasser while on his way back to the garage for the purpose of restoring the car. Yet that would be as logical as to say that the owner is responsible for the negligent acts of his chauffeur who is returning from a wholly unauthorized mission."
The facts of this case are distinctly different from those in the James case in so far as the scope of the duties entrusted to the respective employees is concerned. In the James case Rhodes was a helper in the funeral establishment and his authority to use the car was limited to driving the same *684 when in connection with the defendant's business. All other acts by him were unauthorized and in violation of his authority, and when he took the car to take Jemison to his (Jemison's) home, such act could not in any way be connected with the business of the defendant or in any way benefit defendant, and we therefore think that the court properly concluded that: "When Rhodes turned aside to do something in no way connected with or incidental to his employment, the relationship of master and servant was suspended and remained suspended so long as he was engaged in doing the unauthorized act."
In the case at bar Chaney was given by the town of Lake Providence, and his duties required, the freest possible use of the car, so that he could be present where needed as quickly as possible. Wherever in the city he might be, he was subject to instant call. "Being available" at all times was an essential requirement of his employment.
"Subject to the limitation that the acts complained of must be within the scope of the servant's employment, a master is liable for the acts of one whom the servant employs under authority given him by the master to assist in the performance of the master's work. The authority to employ assistants may be either express or implied; it may be implied from the nature of the work to be performed, from the general course of conducting the business of the master by the servant, or from the circumstances of the particular case." 39 Corpus Juris, paragraph 1458. "It isnot necessary that * * * compensation *685 should be paid by or expected from him." 18 R.C.L., section 245, at page 785. See, also, 26 Cyclopedia, Master and Servant, 1521. (Italics ours.)
"The language `in the course of his servant's employment' * * * is not to be taken as synonymous with `whilst the servant was employed by him,' but refers, as we understand it, to acts done by the servant, however ill judged, in connection with, or in furtherance of, the purposes of his employment." Gann v. Great Southern Lumber Company,
In the Gann case the court quoted with approval from the case of Barrett v. Minneapolis, etc., R. Co.,
"The doctrine of respondeat superior is not limited to the acts done with the express or implied authority of the master, but extends to the acts of the servant done in the discharge of the business intrusted to him, even though done in violation of instructions."
As stated in Corpus Juris: "The test as to liability of the master is whether the servant was guilty of negligence in the doing of his master's work. It is not essential that the negligent act or omission complained of should have been expressly authorized by the master, or that he should have been present when the act or omission complained of was committed, or that he should have had knowledge of the act or omission which caused the injury. And so long as the act is within the scope of the servant's employment, it is immaterial, as *686 affecting the master's liability, what the motive of the servant was. The fact that he had delegated to a third person the power to give the servant instructions as to his work will not exonerate the master from liability." 39 Corpus Juris, Section 1486, at page 1291.
In the case of Cusimano v. A.S. Spiess Sales Company,
"It is not every deviation from the direct line of his duties on the part of an employee that constitutes a turning aside from his master's business. Duffy v. Hickey,
"And even though a servant may have turned aside from the master's business, yet the liability of the master reattaches as soon as the servant reassumes the business of his master.
"And the authorities hold that, when the servant, having completed the purpose for which he turned aside, is returning to resume his duties, he is, whilst so returning, engaged in the business of his master."
and held "* * * that, even if defendant's chauffeur had turned aside from defendant's *687 business for some purpose of his own, yet at the moment of the accident he had fulfilled his own purpose, and was then in the act of attending to the business of his master either by continuing his deliveries or by returning to the store. And we think his master is liable for his negligence when so engaged."
In the Cusimano case this court quoted with approval from the case of Barmore v. Vicksburg, S. P. Ry. Co.,
"The rule that, where a servant has made a temporary departure from the scope of his employment, the responsibility of the master for the tort of the servant attaches immediately after the purpose of such departure has been accomplished and as soon as the servant re-engages in the discharge of his duty, applies where an employee of a railroad company, whose duty requires him to use a railroad tricycle to aid in gathering wood, leaves the place, where he is thus employed, to carry a sick friend on the tricycle to a station, and, after leaving such friend at the station, injures a third person through his negligence in running the tricycle, though the accident happens before the servant reaches the place from which he started. * * *
"When did Watson resume his service, so as to render his master liable? His private affair was to carry a sick friend to the station, but when that was completed and he began to propel the railroad tricycle back over the route which he had previously traveled, with the intention and for *688
the purpose of proceeding to the discharge of the duty which he was employed to perform, he then resumed his master's service,which had been suspended temporarily while he was engaged abouthis own affairs. The argument that Watson did not resume his duty until he actually reached the spot where he was to gather the fuel rests on no solid legal foundation. He was operating the appliance which it was his duty to operate. He was on the track at a place which he was compelled to pass over, and proceeding to the place where his duty called, for the purpose of performing that duty, and was at the time of the injury engaged about no affair of his own, but discharging in the usual and customary manner the business for which he was employed. Under such circumstances the master is answerable for the tort of the servant." The following authorities were cited in support thereof: Chicago Con. Bottling Co. v. McGinnis,
According to the facts of this case, as hereinabove stated, E.J. Chaney drove the town car to the Providence Motor Company's place of business to get his personal car, which was then being repaired, and after reaching the place entered into a discussion with a representative of the *689 company regarding the purchase of tires for the town, which under his contract of employment he was authorized to do, and, as stated in the facts certified to us by the Court of Appeal, "Thediscussion caused a delay, so he directed his son to drive the town car back to his home and store it for the night, where it might be had in case he needed it." (Italics ours.)
We therefore conclude that in view of the broad and general scope of the duties of E.J. Chaney, as well as of his authority in connection therewith, and the fact that "being available" at all times — twenty-four hours a day — was an essential requirement of his employment, when he directed his son to return the town car to his home "where it might be had in case he neededit" he was acting within the scope and authority of his employment and in the furtherance of the business and interest of the town. (Italics ours.)
For the reasons assigned, the question certified by the judges of the Court of Appeal is answered in the affirmative.
O'NIELL, C.J., and ROGERS and ODOM, JJ., dissent.
Dissenting Opinion
I think the question certified by the Court of Appeal should be answered in the negative. When E.J. Chaney went from his residence to the garage, he went on a mission of his own, in no sense connected with his employment. "His purpose in going there was to obtain his personal car, on which repairs had been made." He *690 departed entirely from the duties for which he was employed. While on that mission, he was a stranger to his master's business. He suspended his contractual relations with his employer by taking and using his employer's car for his own private purpose. He abandoned, and turned aside completely from, the business for which he was employed, to engage in a purpose wholly his own. The fact that, while at the garage, he spoke to a salesman about the purchase of tires for a truck which belonged to the town does not change the situation, because admittedly he did not go there for that purpose.
Having taken and used his employer's car on a mission wholly his own, thereby departing completely from the scope of his employment, he did not reenter his master's work on the return trip, the purpose of which was to put the car back where it was ordinarily kept while not in use. The outgoing trip being unauthorized, the incoming trip was likewise so. James v. Williams Son, supra.
In the case of Cusimano v. A.S. Spiess Sales Co., quoted in the majority opinion, the servant went out on a mission for the master and, while out, turned aside from the scope of his employment and went on a mission of his own. After he had completed the purpose for which he turned aside, he resumed his duties and, while so returning, inflicted personal injury upon another. It was held that the employer was liable, on the ground that the master's liability reattached as soon as the servant resumed the business of his employer. The theory underlying that holding was *691
that the servant went out on a mission for the master. The same principle was announced in Glass v. Wise McAlpin,
In the case at bar, the injury took place while the car belonging to the town was being returned to the garage where it was ordinarily kept, after having been taken out on a mission not connected with the servant's employment.
In my opinion the ruling in the case of James v. Williams Son, supra, is applicable to this case. I dissent.
Dissenting Opinion
The majority opinion on rehearing is based on the erroneous assumption that "The facts of this case bring it within the doctrine of the case of James v. J.S. Williams Son,
The error into which the majority opinion fell is further demonstrated when it said: "It is remarkable how like the present case was the case of Johnson v. City of Iola,
The next case cited is that of Fox v. City of Syracuse,
Keeney v. City of Salem,
The majority opinion, after quoting the above cases, concludes with quotations from Blashfield's Cyclopedia of Automobile Law and Practice, Mechem on Agency, and the Restatement of the Law of Agency. The general rules quoted therefrom are no doubt sound and we could approve them, without, however, detracting from our original opinion.
The basis of the city's liability may well be stated in the language used in the Restatement of the Law of Agency, Section 214, at page 472:
"By contract, however, or by entering into certain relations with others, a person may become responsible for harm caused to them by conduct of his agents or servants not within the scope of *703 employment; the extent of this liability depends upon the dutyassumed." (Italics ours.)
In my opinion the scope of the duties of Chaney's employment may be compared with those entrusted to Fausnacht in the case of Black v. Rock Island A. L.R. Co.,
I think that this case is "on all fours" with the Black case. In the present case the light and water plant of the municipality was operated by sufferance of legislative authority (Act 136 of 1898, as amended by Act 181 of 1914 and Act 135 of 1916) and the injury was occasioned by an instrumentality that was incidental to the use of that privilege, i.e., an automobile used to discover what work or repair was necessary to be made by the light and water plant. The privileges granted to the railroad company and to the light and water plant of the City of Lake Providence are both privileges granted for purposes *704 of public utility and both are charged with the duty to use carefully the instrumentalities connected with and incidental to their operation.
The statement made in the Black case, immediately following the quotation therefrom in the majority opinion, is peculiarly applicable to the facts of this case. "* * * The defendants themselves, being mere intellectual and intangible creations,have no capacity to act otherwise than through their humanrepresentatives, and they can be present at the place where their interests or obligations require that they shall be present, and there act only through such representatives; and, on the other hand, when they authorize certain actual persons to representthem at a particular place and time with respect to suchinterests and obligations, and the persons are there, dischargingthe functions for which they are authorized, the corporationsthemselves are there discharging those functions in the only wayin which they can discharge them, and the acts of the personsrepresenting them are the acts of the corporations. * * *"
Paraphrasing the statement that follows the above quotation, it can be said that the Town of Lake Providence was in possession of its plant and the automobile used in connection therewith for the operation thereof through Chaney, its agent and superintendent. Unlike Fausnacht, however, Chaney had full and complete authority with reference to the operation and maintenance of the plant, the sole exception being the hiring of certain fixed employees, which had to be appointed with the approval of the town's mayor and aldermen. *705
In the opinion of that case, the court, in summing up its conclusion upon the law of the case, stated:
"Where the agents of a railroad company are placed in charge and control of its depot, locomotives, and tracks in a town, with authority to operate the locomotives over the tracks for switching and other purposes (connected with the business of the company), and with actual power to operate them when they please, and the agents, whilst operating them for their own amusement across a street of the town, negligently injure a citizen, who is legitimately using the street, such agents will be held to be acting, though improperly, within the scope of the authority conferred on them, and the company will be held liable for the injury resulting from such action.
"The right to operate a steam locomotive on, or across a street in a town involves the use of an agency highly dangerous to life, limb, and property, and the responsibility for the exercise of such right cannot be shifted by the corporation in which it is vested to the person, who, by its authority, actually exercises it."
Chaney was unquestionably the agent of the Town of Lake Providence and was in full charge and control of its water and light plant, and he also had the complete use and control of the automobile which was furnished him to carry out his duties in connection therewith. In fact, it was his duty to have the automobile instantly available for use twenty-four hours a day. In my opinion these facts bring the case squarely within the doctrine announced in *706 the case of Black v. Rock Island A. L.R. Co., supra.
I think the foregoing clearly demonstrates the error into which the author of the majority opinion fell and, in my humble opinion, strengthens the views expressed in the original opinion.
For the foregoing reasons and those assigned in the original opinion, I respectfully dissent.
Addendum
"Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed."
The controlling phrase in this article is "in the exercise of the functions in which they are employed". That means that employers are answerable for damages caused by their employees in the cases only where the damage is done while the *692 employee is performing some duty which he is employed to perform. In this case, the young man who was driving the town's automobile at the time of the accident was the eighteen-year-old son of the superintendent of the light and water plant operated by the town. The young man was not then using the car in or for any service that the superintendent was employed to perform. The superintendent had taken the car from his residence, where the car was kept, and had gone in the car to a garage to get his own car, which had been undergoing repairs; and the superintendent took his son along to drive one of the two cars back home. While at the garage the superintendent entered into a discussion with a dealer concerning the purchase of some tires for a truck that belonged to the town. While so engaged the superintendent directed his son to drive the town's car back home and store it for the night, where it would be available in case he, the superintendent, should need it. It was while the son was driving the car home that it struck the plaintiff and injured her. The young man was not then in the employ of the town. The fact that on previous occasions he had worked on small extra jobs in the utilities department is a matter of no importance.
In determining whether the town is answerable for the injuries we assume that the superintendent had authority to delegate to his son, or to any one else, the duty of returning the company's car to the superintendent's residence, after the superintendent had used the car for his own convenience in going to get his own car *693 from the garage or repair shop. The important fact is that the son was not then performing any duty that his father was employed to perform. The son was merely rendering his father a service while the latter was engaged elsewhere, perhaps negotiating yet for the purchase of tires for the town's truck. From the fact that the superintendent's position or employment was what is called an all-time job, requiring him to be ready at all times to respond to an emergency call, it does not follow, as a proposition of law, that he was at all times in the actual performance of some duty or service for the town.
The controlling feature of the case is that the purpose of the superintendent in taking out the town's car on the occasion of the accident was not to render a service to his employer, but to serve his own convenience. It is true that the superintendent owed a duty to the town to return the car to the place where it belonged, after he had used it for his own personal purpose; but that duty was not one which arose from the contract of employment between the town and the superintendent. The same duty, to return the car, would have rested upon any one else who might have taken the car out for his own use — whether with or without the consent of the town or of the superintendent. The duty to return the car was the necessary consequence of its being taken out for the personal use of the superintendent. Hence the town is not answerable any more for an accident that happened while the car was being returned to the place where it belonged than the town *694 would be responsible if the accident had happened while the car was being taken out for the personal use of the individual taking it out.
The facts of this case bring it within me doctrine of the case of James v. J.S. Williams Son,
"The broader, and as it seems to us correct, view of the case presented is that defendants, being vested with a franchise (that is to say, a privilege conferred upon them by the state, and not enjoyed by citizens generally of common right), by virtue whereof they were authorized to lay their tracks across a public thoroughfare in an incorporated town, and to operate cars propelled by steam power thereon, incurred certain correlative obligations, and among them the obligation to use their franchise with due regard to the public safety. The implied condition upon which they were allowed to lay their tracks across a street which is open to the public was that they should keep the tracks in a safe condition, and that neither they nor those for whose acts they are responsible should operate their cars over them in a manner unnecessarily to endanger the lives or limbs of those who had the right to use the street."
The doctrine of the Black case is explained in the James case, and the Black case is there analyzed and distinguished from the James case. It would confuse matters if we should fail to observe the distinction now.
The doctrine of the Black case is restated, substantially, in the American Law Institute's Restatement of the Law of Agency, § 214, p. 471, under the rubric Failure of Principal to PerformNon-delegable Duty — thus:
"A master or other principal who is under a duty to provide protection for or to have care used to protect others or their property and who confides the performance *696 of such duty to a servant or other agent is subject to liability to such others for harm caused to them by the failure of such agent to perform the duty."
It is remarkable how like the present case was the case of Johnson v. City of Iola,
"The city owns and operates a gas, electric light, and water plant. Its power house is located about a mile beyond the western limit of the city. Webster was foreman in the city's gas and water departments, and used the truck in the course of his employment. For greater convenience, he kept the truck at his own home, and sometimes did repair work upon it. On the evening of the accident Webster drove the truck to the power house to remove carbon from the cylinders and to grind some valves. When he started home, about 7:30 in the evening, the electric lights of the car went out. He lighted the oil lamps, and proceeded eastward along the south side of the macadamized portion of a highway leading to the city. The night was dark and stormy, and violent gusts of wind blew snow and dust across the road to such an extent that Webster's vision was sometimes completely obscured. On one of these occasions the truck struck the plaintiff, who was walking eastward, and inflicted the injuries *697 complained of. The petition alleged that Webster was acting for the city in the transaction of its business, and was negligent in that he was driving without any white or bright light and at a dangerous rate of speed. * * *
"Webster's duties for the day ended at 5 p.m., unless accident or other special circumstance made additional service necessary. It was no part of his duty, general or special, to take the car to the power house and there work upon it, and he went to the power house, not in performance of any duty required by his employment, but for his own personal convenience. The result is, he was outside the course and scope of his employment in going to the power house, and in setting out for home from that place."
The case of Fox v. City of Syracuse,
"City held not liable for employee's negligence causing automobile collision while returning from week-end visit, notwithstanding during visit he incidentally performed service relating to employment. *698
"City employee, while on customary week-end visit to beach solely for own private purposes, by accident met owner of tenement house on whom it was his duty as tenement house inspector to serve notice that lights required to be kept burning at night in halls used by tenants in common were not kept burning, and gave customary oral notice. Thereafter city employee, while returning to city and driving city's car, caused injuries in an automobile collision."
In the case of Keeney v. City of Salem,
"There is no contention that the charter of the city of Salem authorized the municipality to furnish transportation for the mayor. Neither is it claimed that the city council ever authorized the police department to use a city automobile to convey the mayor to or from the city hall; nor is it asserted that it was within the scope of the authority of the city, through its governing body or any of its officers, to supply *699 taxi service for the private `matter of convenience and accommodation' of the mayor of the city."
In Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Edition, Vol. 5, Ch. 84, § 3029, p. 175, it is said that an employee, who is in the habit, after his day's work is over, although not required to do so by his contract of employment, of taking an automobile turned over to him for his use during working hours to a garage, and returning it to his employer's place of business the following morning, cannot be considered as doing an act incidental to the duties which he is employed to do, in merely returning the car in the morning, before his day's work is to begin, to the place where he is to report for duty. And it is said that this rule applies even though in serving his own personal ends the employee accomplishes something which incidentally benefits his employer.
The rule is stated in Mechem on Agency, 2nd Ed., Vol. 2, § 1898, p. 1474, thus:
"If the servant or agent step aside from the principal's business, for however short a time, to do some act of his own, not connected with the principal's business, * * * the relation of principal and agent or master and servant is, as to that act, suspended."
And the rule is restated, specifically, by the American Law Institute in the Restatement of the Law of Agency, § 238, b., p. 535, thus:
"The mere fact that the master habitually allows the servant to use the instrumentality, *700 or even that the master maintains the instrumentality entirely for the use of the servant, does not of itself subject the master to liability. The master is liable only when the instrumentality is being used by the servant for the purpose of advancing the employer's business or interests, as distinguished from the private affairs of the servant. Thus, a master who purchases an automobile for the convenience of his servants is not subject to liability when a servant is using it for his own purposes; nor is he liable if a group of servants, with his permission, use it for private purposes."
Our answer to the question propounded by the court of appeal is that the Town of Lake Providence is not subject to liability for any injury done to the plaintiff by negligence on the part of the driver of the automobile, under the facts stated. The right is reserved to the plaintiff to apply for a rehearing.
FOURNET, PONDER, and HIGGINS, JJ., dissenting on rehearing.