The facts of this case are in all respects identical with the facts in the case of Kerner v. Spiegl, ante, p. 162, [166 P. 1013], pending in this court, and this day decided, and the opinion in that case is equally applicable to the present one.

The order denying the plaintiff's motion for a new trial is affirmed.

Beasly, J., pro tem., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 16, 1917. *Page 803