St. Louis Police Relief Ass'n v. Tierney

116 Mo. App. 447 | Mo. Ct. App. | 1906

NORTONI, J.,

(after stating the facts). — 1 It is argued by learned counsel for appellants that inasmuch as there is neither a certificate of membership in the nature of a policy, nor by-laws evidencing a contract of insurance in the case at bar, that the entire contract between the parties is contained in the constitution of the association; that the sections of the constitution above quoted are controlling and that the adjudication of the issues here involved must be had in strict accordance with the letter of said constitutional provisions because they are charter provisions and such charter provisions are not subjects of waiver by the association. It is insisted that the contract can only be effected in the manner pointed out in the constitution; that in event the assured failed to appear on the third day between the hours of 9 and 11 a. m. and designate a beneficiary in the manner prescribed, then by virtue of the contract between the parties, the provisions of the constitution contained in section 4 of article 7 to the effect that “If he shall have failed to designate, it will be paid to his heirs at law,” etc., toot effect at once and nominated, designated and therefore constituted the heirs at law the beneficiaries under said contract, whose rights, as designated beneficiaries, attached immediately by virtue of the constitutional provisions mentioned, subject only to be divested in the manner pointed out for changing the beneficiary, which was by written notice to that effect. The argument, as will be' observed, is predicated upon the principle that the provisions of a corporate charter are as conditions precedent which must be strictly followed and complied with in carrying out the object and purposes of the corporation; that no deviation therefrom will be allowed or tolerated and therefore, as a corporation cannot deviate from its charter provisions and enter into contracts in a manner different from that prescribed therein, it is likewise not competent for it to Avaive the requirements of any of such provisions.

Indeed, it is generally true upon the principle that inasmuch as the act of incorporation is to' them an enabling act giving to the corporation all of the poAvers of Avhich it is possessed thus conferring its ability to contract and that the constitution or charter is the source through which such powers flow from the fountain head and Avithin which is supposed to> lie the proper limitations on the exercise of such powers, that therefore, when the mode and manner of contracting is prescribed in the charter, the power thus conferred must be exercised in the mode and manner pointed out in the charter and as a necessary result therefrom, such provisions which are material and of the essence of the corporate existence, are not subjects of waiver by the company or its officers. The doctrine is especially applicable in requiring corporations to remain within their charter limits in contracting and contracts entered into outside of its charter provisions are frequently declared ultra vvres in a proper case. [Head v. Prov. Ins. Co., 6 U. S. 127; Presby. Mut. Assurance Fund v. Allen, 106 Ind. 593; Matthews v. Skinker, 62 Mo. 329; Leonard v. Amer. Ins. Co., 97 Ind. 299; Couch v. City Fire Ins. Co., 38 Conn. 181; Plahto v. Mer. & Mfg. Ins. Co., 38 Mo. 248; Ruggles v. Collier, 43 Mo. 353-376; Holland (Guardian) v. Taylor et al., 111 Ind. 121; Sup. Council, etc., v. Smith, 45 N. J. 466; 17 Atl. 770; Blair v. Perpetual Ins. Co., 10 Mo. 565; Bank of Louisville v. Young, 37 Mo. 406; Dairy Co. v. Mooney, 41 Mo. App. 671; Hosack v. College of Physicians, 5 Wend. (N. Y.) 547; Beatty v. Marine Ins. Co., 2 Johns. (N. Y.) 109; Fridley v. Bowen, 87 Ill. 151; Niblack on Benefit Societies (2 Ed.), sec. 215; 7 Amer. & Eng. Ency. Law (2 Ed.), 695.]

In accordance with this doctrine, it was held by the Supreme Court of Connecticut in Couch v. City Fire Ins. Co., 88 Conn. 181, where the charter of the insurance company provided that “If there shall be any other insurance upon the whole or any part of the property insured by said company, during the whole or any part of thé time specified in such policy, then every such policy shall be void, unless such double insurance shall exist by consent of said company, indorsed upon the policy under the hand of the secretary,” that the insurance company could not waive performance of the act required by such provisions and its charter in the mode prescribed and that its consent to the double insurance can only be proved by the indorsement thereof on the policy under the hand of the secretary. To the same effect is Leonard v. Amer. Ins. Co., 97 Ind. 299. And in Presby. Mut. Assurance Fund v. Allen, 106 Ind. 593, where the charter of a mutual benefit society provided that: “Upon the decease of any member of this association, the fund to which his family is entitled, shall be paid as may be designated in the application for membership ; this being changed by death or otherwise impossible, it shall go: 1st. To the widow and infant children. 2nd. To his mother and sister. 3rd. To his father and brothers. 4th. To his grandchildren. 5th. To his legal heirs;” it was held: “The provisions of the charter, as we read them, do prohibit a change of beneficiaries by the act of the insured and insurer, for they declare that the benefit ‘shall be paid as may be designated in the application,’ and that ‘this being changed by death or otherwise impossible, it shall go; in the mode which is specifically provided. We can see no way to avoid the conclusion that this charter provision requires the benefit to be paid to the person named in the application, or to those specified in case of the death of those persons or of some occurrence making it impossible • to pay them.” It will be observed that the contracts in the two cases mentioned were made in violation of the essence and substantial provisions of the charters of the companies and were therefore held to be in conflict with the provisions of the corporate existence and beyond the power of the parties to engage. The well-established doctrine above referred to and upon which the adjudication in the cases quoted is predicated, like all other rules of the law, is subject to its limitations and necessary exceptions.

2. The rule requiring strict compliance with the charter provisions does not apply with all its force to acts provided for in the charter when the provisions are directory merely, rather then mandatory, and in cases where the corporation has acted in a matter not in strict conformity to the charter provisions, which are merely directory, the courts have universally recognized this distinction and even though they were consummated by deviations from the charter, held such acts valid in respect to contracts intra vires or within-the scope of their authority on the ground that such provisions were inserted in the charter not as conditions precedent on them, but are mere directions for the benefit of the corporation and therefore the proper officers representative of the corporate will can waive the same, inasmuch as they are merely directory and not precedent conditions. The fundamental distinction between that which is of the essence of the thing itself and merely directory provisions was recognized at an early date by Lord Mansfield in Rex v. Locksdale, 1 Burr. 447, in the following language: “There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament and clauses merely directory.” And so, too, this distinction was recognized and carried into' the law pertaining to corporate charters at an early period in the jurisprudence of this country by the Supreme Court of the United States in an opinion delivered by Mr. Justice Story in his usual clear and able manner in the case of Bank of the United States v. Dandridge, 12 Wheat. 64, 25 U. S. 64, in which case Chief Justice Marshall dissented,adhering to the less pliable doctrine announced by the same court in an opinion prepared by him in the case of Head v. Prov. Ins. Co., supra. About the same time, the Supreme Court of Pennsylvania recognized and pointed out the distinction in Bank of Northern Liberties v. Cresson, 12 Serg. & Rawl. (Pa.) 306 and quoted and approved Lord Mansfield in Rex v. Locksdale, supra. Until now the following quotation from the opinion of Mr. Justice Story in the case mentioned supra, is recognized as a most clear and terse statement of the law on the subject: “That some of the provisions of the charter. and by-laws may well be deemed directory to the officers and not conditions without which their acts would be utterly void, will scarcely be disputed. What are to be deemed such provisions must depend upon the sound construction of the nature and object of each regulation and of public convenience, and apparent legislative intention.” This doctrine is recognized by the standard authors on the subject and the courts of the country generally. [See 4 Thompson on Priv. Corp., sec. 5674; 5 Thompson on Priv. Corp., 5978; 7 Amer. & Eng. Ency. Law (2 Ed.), 701-714-767; Southern Life Ins. Co. v. Lanier, 5 Fla. 110; Sherman Center Town Co. v. Morris, 43 Kas. 282; Bulkley v. Derby Fishing Co., 2 Conn. 252; Tates v. Bank of State of Ala., 2 Ala. 451; Middle Bridge Props. v. Brooks, 13 Me. 391.]

The result of the adjudications on the subject is thus aptly stated in the text (7 Amer. & Eng. Enc. Law, (2 Ed.) 714 to be: “Not every provision in a charter or act of incorporation is to be regarded as mandatory. Some are merely directory. Whether they are the one or the other, must depend upon the nature and object of each provision and apparent legislative intention. Provisions merely directory to the officers of.the corporation do not affect the powers of the corporation.” From the considerations above mentioned and from the further consideration that those provisions of the charter which are merely directory to- the officers of the association for their guidance in the safe and convenient conduct of its business fulfill no more important office than the by-laws of the society which are provided primarily for the benefit of the association and do not necessarily affect the corporate powers in intra vires contracts, it is competent for the society to waive a strict compliance with such merely directory provisions of its charter. This proceeds, of course, upon the principle that such merely directory provisions are in no sense conditions precedent upon the association, but rather fulfill the office of regulations addressed to the officers and members, and are therefore not of the essence of the corporate business, and as such, affecting the power of the corporation itself but rather the mode, manner and details of its exercise, and'therefore a strict compliance therewith may be waived by the association. [Kimball v. Lester, 43 N. Y: App. Div. 27; Kepler v. Sup. Lodge, 52 Hun. (N. Y.) 274; Bulkley v. Derby Fishing Co., 2 Conn. 252; St. Louis, etc., Ry. Co. v. Terre Haute, etc., Ry. Co., 145 U. S. 393; Bank of Northern Liberties v. Cresson, 12 Serg. & Rawle (Pa.) 306; Southern Life & Trust Co. v. Lanier, 5 Fla. 110; Bates et al. v. Bank of Alabama, 2 Ala. 451; Middle Bridge Props. v. Brooks, 13 Me. 391; Bank of U. S. v. Dandridge, 25 U. S. 64, 12 Wheat. 64; Sherman Center Town Co. v. Morris, 43 Kas. 282; St. Louis Police Relief Assn. v. Strode, 103 Mo. App. 694, 77 S. W. 1091; Courtney v. St. Louis Police Relief Assn., 101 Mo. App. 261; 73 S. W. 878; 7 Amer. & Eng. Ency. Law (2 Ed.), 701-714-767; 23 Amer. & Eng. Ency. Law (2 Ed.), 783; 1 Bacon on Benefit Societies (3 Ed.), 239.]

That it is competent for mutual benefit societies to waive a strict compliance with their by-laws, is well settled. [Grand Lodge v. O’Malley, 114 Mo. App. 191, 89 S. W. 68; Grand Lodge v. Reneau, 75 Mo. App. 402; Allison v. Stevenson, 51 N. Y. App. Div. 626; Kimball v. Lester, 43 N. Y. App. Div. 27; Kepler v. Sup. Lodge, 52 Hun. (N. Y.) 274; Courtney v. St. Louis Police Relief Assn., 101 Mo. App. 261, 73 S. W. 878; 3 Amer. & Eng. Ency. Law (2 Ed.), 961; 1 Bacon on Benefit Societies, (3 Ed.) 239-309.]

With these principles before us, it becomes our duty to examine the several constitutional provisions involved with a view of ascertaining whether those pertinent here he mandatory or merely directory. Section 1 of article 2 provides that the rights, powers and responsibilities of the association shall he vested in, enjoyed, exercised and borne by an executive committee. It is palpable from those provisions that the executive committee was not expected to exercise the powers in detail personally, for section 3 of article 5 above quoted places the principal portion of the active business of the association upon the Secretary, constitutes him the keeper of the records and seal and makes him the agent thereof for the purpose of consummating the details of the insurance contracts and otherwise conducting the business of the institution, and as such agent, he is required to report quarterly to the executive committee. Section 5 of article 1 provides that Avhen the applicant has been admitted to membership, he shall call at the office of the Secretary between the hours of 9 and 11 a. m. on the third day thereafter and designate on the death benefit record the disposition of his death benefit. And it is provided in section 3 of article 5 that the secretary shall be at his office from 9 to 11 a. m. on such .third day to alloAV such designation to be made and that the same shall be attested by him under his hand and seal. The provisions requiring the applicant and the secretary to he at the office on the third day were certainly incorporated as directory regulations for the purpose of enabling the assured to know on Avhat day he can, if he desires, have his designation attended to and for the convenience of both himself and the association. Prior to the admission to membership, there was an application to he made and a medical examination to he had, after which the act of admission, and therefore three days time no doubt was provided in order to more effectually enable the secretary to notify the applicant of the favorable action on his application and to enable the applicant, a police officer always, no doubt to procure the necessary leave and meet the secretary at the office for the purpose mentioned. From these considerations we cannot believe that they constituted precedent conditions in such a sense that a strict compliance therewith must be had and that, in event the assured failed to make the designation on that day, he was precluded front making the. same thereafter. On the contrary, we understand that it was competent for him to malte such designation on that day or on any other day thereafter that the assured saw fit. Indeed, it might be that the member had no one in mind whom he desired to designate on the third day or for some sufficient reason was unable to attend for that purpose. This certainly would not preclude him from making proper designation at a later day. Nor would such failure on his part constitute the heirs at law the designated beneficiaries within the meaning of the constitution so that it would become necessary for the assured to proceed under the formalities prescribed for change of beneficiary in order to make a designation. We reach these conclusions from two sufficient reasons. One is, the provision of the constitution as to a designation on' the third day, was merely directory, as appears by the reading of the several provisions, inasmuch as it amounted to a formality which neither went to the substance of the contract of membership nor affected the express object of the association, it being a matter of detail only. And then, too, it is competent in construing the constitution to view the recognized interpretation of the same by the officers of the association itself, which made and adopted the same. The Secretary testified that this regulation was never lived up to in his time, and further, that he made a practice of calling at the several police stations for this purpose and that the officers were allowed to call at their convenience and make the designation. The association itself, by solemn constitutional provision contained in section 1 of article 9, recognized this practice of the secretary in carrying the records from place to place for that purpose, in the following language: “No record of the association shall be taken from the office and left at any police station or other place except it be in the custody of the secretary.” This language does not forbid the act but clearly admits it to be a practice of the association, and only seeks to enjoin the duty upon the secretary of constantly keeping the record in his care, when it is thus being taken from place to place for the convenience of the members. All of which shows a waiver on the part of the association of a strict compliance with the merely directory provision requiring the beneficiary to be designated on the third day, etc. [St. Louis Police Relief Assn. v. Strode, 103 Mo. App. 694, 77 S. W. 1091; Hanson v. Minneapolis, etc. Relief Assn., 59 Minn. 123; 1 Bacon on Benefit Societies (3 Ed.), sec. 239-308 and cases supra.]

3. A further reason for holding that the heirs at law were not designated beneficiaries in the sense that renders it necessary for the assured to proceed in accordance with the forms prescribed for changing the beneficiary, is that the constitutional provision on the designation of a beneficiary contemplates a positive, affirmative designation by the. express act of the assured and -in the very nature of things, when the rights of the parties are considered this is eminently proper, for the assured, under a contract of this kind, enjoys but two privileges, first, that of paying dues, and second that of exercising one and only one power in connection with the contract; that is, his power of appointment or designation of the person who is to be the recipient of his bounty, and under such circumstances, every consideration of good conscience and of justice seems to dictate that such designation should only be made by positive and express act on his part, whereby a clear manifestation of his will is had on the subject.

The word “designate” is defined by the Standard Dictionary to mean: “To mention by distinctive name; identify by name.” By Webster: “To point out; to name.” By 9 Amer. & Eng. Ency. Law (2 Ed.), 405, as: “To designate is to point out or mark by some particular token; to show or point out; to' indicate by description'' or by something known or determinate.” Prom this it appears that to designate a beneficiary within the meaning of the constitution, a positive and affirmative act expressly naming or pointing out of the person was required on the part of the assured. As said by the Supreme Court of Minnesota: “By the ‘designation’ of a beneficiary, the by-laws evidently refer to some express act. of the principal specifying and naming some particular person, and by ‘changing’ the beneficiary, they refer to the act of naming and specifying some other person or persons in place of those previously designated. Hanson v. Minn. etc. Relief Assn., 59 Minn. 123-128; Shryock v. Shryock, 50 Neb. 886; It is clear to this court that the failure of Tierney to designate a beneficiary on the third day after his admission to membership did not, ipso facto operate as a designation of the heirs at law within the meaning of the constitution nor the law with respect to designation. This same conclusion is irresistible from still another standpoint and that is, that the constitution in no manner denominated such failure as a designation of the heirs, but on the contrary it treats' of the matter as a failure to designate and provides solely “if he shall fail to designate, it will be paid to his heirs at law” etc. This does not say that upon such failure, the heirs at law are thereby “designated” in lieu of the beneficiary who was not otherwise designated. The provision is merely directory as to what course the fund shall take in event of the failure to designate, and the only standing that the heirs at law can have in this or any other court must be predicated upon a failure to “designate” and not upon the hypothesis that such heirs at law were designated. The result of the authorities on this branch of the case enforce the following conclusions which are amply supported by both reason and principle.

First. That the provisions of the constitution pertaining to the designation of the beneficiary are merely directory in their nature, inserted for the convenience of the parties, more particularly designed for the protection of the association, the object being that it might-have in its records authentic written evidence as to who are designated as beneficiaries to whom benefits shall be paid. It is a formality which neither goes to the substance of the contract of membership nor affects the express object of the association, and therefore it could be waived by the association.

Second. That the act of designation contemplated in the constitution is a positive, affirmative and express act on the part of the assured, amounting to the express naming and pointing out of the beneficiary by him and that his failure to exercise the act in the manner and afc the time designated, did not operate as an act of designation of the heirs at law so as to give them vested rights in the fund which could only be divested in the manner provided for changing the beneficiary.' Authorities supra.

4. The former designation of Margaret Tierney as beneficiary in the death benefit record of the first or prior membership in the association, of course ceased to be effective as such when the assured severed his contract relations with the institution, and such prior designation could be of no force or effect in this case as such unless it be that the association had waived the formal designation in the manner prescribed and both parties had adopted and ratified that as a proper designation under the present membership contract.

5. From what has been said, it is apparent that Tierney had made no1 designation at the time of instructing officer Stone to request the secretary to bring the death benefit record to his house in order that he might properly designate his wife. The matter then still remaining open, how was he to proceed to make such designation?

The law is well settled that in making the designation as well as in changing the beneficiary in contracts of this kind, the insured is bound to do it in the manner pointed out by the policy and the laws of the association unless a strict compliance therewith is waived by the association. [1 Bacon on Benefit Societies, (3 Ed.) secs. 238-239-307; Grand Lodge etc. v. O’Malley, 114 Mo. App. 191, 89 S.W. 68; Supreme Conclave, etc., v. Capella, 41 Fed. 1; McLaughlin v. McLaughlin, 104 Calif. 171; Holland v. Taylor, 111 Ind. 121; Presby. Mut. Assurance Fund v. Allen, 106 Ind. 593; Masonic Ben. Assn. v. Bunch, 109 Mo. 560, 19 S. W. 25; Head v. Sup. Council etc., 64 Mo. App. 212; Coleman v. Sup. Lodge etc., 18 Mo. App. 189; Fink v. Fink, 64 N. E. (N. Y.) 506; Wendt v. Iowa Legion of Honor, 72 Iowa 682; Sup. Council v. Smith, 17 Atl. (N. J.) 770; Natl. Assn. v. Kirgin, 28 Mo. App. 80; Keener v. Grand Lodge, 38 Mo. App. 543; Hall v. Northwestern Endow. Assn., 47 Minn. 85; Eastmen v. Prov. etc. Assn., 62 N. H. 555; Ireland v. Ireland, 42 Hun. (N. Y.) 212; Hollins v. McHatton, 27 Pac. (Colo.) 254; Sup. Lodge v. McNair, 60 Mich. 44; Daniels v. Pratt et al., 143 Mass. 216; Hennenberg v. Dist. No. 1, etc., 94 N. Y. 580; Mellows v. Mellows, 61 N. H. 136; Vallman’s appeal—Lang’s estate, 92 Pa. St. 50; Masonic Mut. Assn. v. Jones, 154 Pa. St. 107; Thomas v. Thomas, 131 N. Y. 205; McCarthy v. Sup. Lodge N. E. Order, 153 Mass. 314; 26 N. E. 866; Olmstead v. Mut. etc. Assn., 37 Kas. 93.]

6. This is a proceeding in equity, however, where the arbitrary rules of law are not conclusive on the rights of parties. True it is that equity follows the law, but in so doing, it seeks to supply, its deficiencies. Where the right would be defeated because of the arbitrary rules of law in a proper case, equity may be enlisted to supply the deficiency to the end that justice shall not fail and when it is shown that the party in good faith and good conscience, has sought to comply with the law and has made every effort on his part to do so, the court of equity, in aid of the clear manifestation of the party’s will, frequently extends its salutary relief to the end desired and treats that as done which in good conscience should have been done and was defeated only by conduct over which the moving party had no> control and' it seems that this doctrine of the equity court is especially applicable to cases of this character inasmuch as insurance contracts of this class are testamentary in their nature, so regarded because the law reserves to the insured the absolute right to change the destination of his bounty at any time prior to its taking effect, precisely as it does in the case of a last will, and because of the kindly impulses which primarily prompt the insured to thus provide a benefit for loved ones which is effective only after the life of the provider has passed and. his lips are closed in death. Therefore a court of conscience will, as far as possible, Avhen the assured has acted in good conscience and is without fault, treat his act as an act testamentary and thus more clearly approximate the intention of the person whose bounty is involved. [Duvall v. Goodson, 79 Ky. 224; Assn. v. Montgomery, 70 Mich. 587; Hall v. Allen, 75 Miss. 175; Pa. Ry. v. Wolf, 203 Pa. St. 269; Grand Lodge v. Child, 70 Mich. 163; Scott v. Prov. Mut. Relief Assn., 63 N. H. 556; Supreme Conclave v. Capella, 41 Fed. 1; Hoffman v. Grand Lodge etc., 73 Mo. App. 47; Grand Lodge v. Ohnstein, 85 Ill. App. 355; Hanson v. Minn. etc. Relief Assn., 59 Minn. 123; Schryock v. Schryock, 50 Neb. 886; Manning v. A. O. U. W., 86 Ky. 136; Natl. Amer. Assn. v. Kirgin, 28 Mo. App. 80; 1 Bacon on Benefit Societies, (3 Ed.) sec. 240-310-310a; 3 Amer. & Eng. Ency. Law, (2 Ed.) 961-962.]

The equitable doctrine announced in the cases last above cited is clearly evidenced by the rule to be found in the text (3 Amer. & Eng. Ency. Law (2 Ed.), 961-962) : “In construing the designation of beneficiaries, courts general] y regard the form as secondary to the purpose of promoting the intention of the parties. Accordingly, where it is understood between the secretary of a mutual benefit society, who issues the certificate, and the member who receives it, that the name of a certain beneficiary shall be inserted without further direction, a failure to make such insertion may be corrected by reforming the certificate after the member’s death.” Therefore it seems quite clear that the learned trial judge decreed correctly in the case at bar in awarding the fund to the representative of the wife, Margaret Tierney, for it is palpable that her husband had an absolute right to designate her as beneficiary at the time he requested the secretary to convey the books to his home for that purpose. It appears that it was the custom of the secretary to carry the books around from place to place to accommodate members in making their designation and this the constitution recognized and levelled its inhibition not against the practice itself, but against so much of such practice only as might involve leaving the record at police stations or “other places” unattended by the secretary. Under these circumstances, when the object and purposes of the association, together with the facts that its entire membership, officers and offices were in the same city and connected with the police department only, are considered the request of Tierney was a reasonable request, he being sick in bed and nnable to attend in person to the same. The secretary, instead of complying therewith, investigated the old records and discovering Tierney’s wife designated therein as beneficiary under the prior contract, instructed Stone, the messenger, that the former designation of Mrs. Tierney was sufficient and that it was unnecessary to designate her under the new contract. This information was conveyed to Tierney directly from the officer in charge. Here was a meeting of the minds of the parties on the subject matter, the one desiring to designate Ms Avife, the other, a competent officer of the association, keeper of the records and seal thereof, believing- her to be designated, instructing him in. good faith that his desire was accomplished and then stood a consummated fact. On this Mr. Tierney relied, as he had a right to do and passed from this life, believing- that his wife was his properly designated beneficiary, and would receive the benefit. Nothing more to accomplish the fact could have been done by Tierney, confined to his bed as he was, and in fact, the secretary so believing, as he said, that the former designation was sufficient, no doubt would have declined to' have permitted a designation under this contract had Tierney actually called in person at his office in that behalf. Under these circumstances, every consideration of good conscience and right conduct- enforces the conclusion that by mutual agreement the parties waived all formalities and adopted and ratified the former designation as and for the designation under the present contract. This state of facts certainly constitutes a proper case for the exercise of the power of a court of equity to brush aside technicalities and mere matter of form and effectuate the intention of the parties by treating that as done which should have been done in order that substantial justice may prevail. Our conclusion is that Margaret Tierney should be decreed the proper beneficiary, and it is so ordered.

For the reasons given, the judgment is affirmed.

Bland, P. J., and Q-oode, J., concur.