1-4. The charges of the court to the jury on circumstantial evidence, accident, and the inapplicability of the doctrine of res ipsa loquitur were not erroneous.
5. The court erred in charging that the jury should find against the plaintiff, where the plaintiff sought to establish the negligence of the defendant, or that such negligence was the proximate cause of the injury complained of, by inferences or circumstantial evidence, where there was direct, uncontradicted, reasonable, and unimpeached testimony consistent with the plaintiff's evidence, which showed that the defendant was without negligence or that the alleged acts of negligence were not the proximate cause of the plaintiff's injury; for there was no uncontroverted direct testimony offered by the defendant which tended to disprove the plaintiff's contentions as to the negligence of the defendant or the cause of the fire, thereby rendering the charge misleading and not applicable under the evidence in this case.
6. The charges of the court in their cumulative effect did not amount to the direction of a verdict for the defendant, and were applicable to the evidence, except as pointed out in division 5 of the opinion. The general grounds are not passed upon, as the court erred in overruling the motion for a new trial for the reasons set forth in division 5 of the opinion.
This was an action for damages brought by Charles Baldwin and his wife, Louvin Baldwin, against Georgia Automatic Gas Company, The petition alleged substantially: that they were the owners of a chicken house or broodery and of twelve brooders and other equipment contained therein; that the defendant sold to the plaintiffs and installed in their chicken house a heating system, which was designed to use liquefied hydrocarbon gas, a highly inflammable product, to be furnished by the defendant; that the heating system was of the defendant's design and was installed under the exclusive direction and control of the defendant's employees, and the system consisted of a storage tank to which was attached one gas regulator which reduced the pressure of the gas to approximately 10 pounds per square inch, then a line of pipes running to a second regulator inside the chicken house which reduced the pressure to 8 ounces per square inch, and then lines to the brooders in the chicken house where the gas was to be burned; that, after the equipment was installed, on March 6, 1949, it was not operated or disturbed until September 14, 1949, when one of the defendant's service men came to the plaintiffs' premises, lighted one or two of the twelve brooders, and advised the plaintiffs that the system was properly installed, ready and safe for operation, and with no leaks or other defects in the equipment; that, when the defendant's employees made the final inspection of the equipment, they should have known it was defective and not safe for use by the plaintiffs or the plaintiffs' employees, but said inspection was incomplete because the system was not tested with all burners lighted and with the gas flowing at maximum volume; that the plaintiff, Charles Baldwin, and his employee, Leonard Swafford, began to light the brooders on September 24, 1949, in accordance with the instructions of the defendant's employees as to the method of lighting; that, shortly after lighting the brooders, Baldwin and his employee were on the lower story of the chicken house, when the upper story caught fire, and although they turned off the gas supply and tried to extinguish the flames, the chicken house and its contents were totally destroyed; that the equipment installed by the defendant was defective, causing an increase in pressure when the burners were lit, which blasted ignited gases into the north end of the second floor of the chicken house and set it on fire; that the equipment produced a great jet of flame because the failure of the regulator and feeder systems increased the gas pressure; that the plaintiffs were not negligent in caring for the apparatus, and the defects in said systems were unknown to the plaintiffs, but were the result of the defendant's negligence and lack of care and skill; that the damages complained of resulted directly from the defendant's negligence in the following particulars: (a) in installing equipment which it should have known was defective; (b) in installing defective equipment which, during its normal operation, ignited and burned the plaintiffs' chicken house; (c) in representing to the plaintiffs that the heating equipment, in itself inherently dangerous and defective, was safe and would not cause a fire; (d) in that the gas-regulating equipment, supplied and installed by the defendant, was defectively constructed and installed so as to permit the flow of gas at high pressure, which such equipment is designed to and usually does prevent; and (e) in failing to inspect and test the equipment
installed under actual operating conditions. It was also alleged that the gas-regulating equipment had not been changed, altered, or tampered with in any way from the time of its installation by the defendant to the time of the fire; and the plaintiffs' damages were laid at $15,000.
The defendant, in its answer, admitted the jurisdictional allegation of the petition, but denied the other allegations, and alleged that it was not negligent; that it did not furnish or install the gas system referred to or undertake to do so, but the system was installed by the plaintiffs; and that the only work which the defendant was called upon to do was to install and connect two regulators, which it did in a careful and workmanlike manner so as not to contribute in any way to the fire and the resulting damage complained of.
On the trial, the following facts were brought out by the evidence: According to the testimony of Charles Baldwin, the brooder house was a two-story building, on the side of a hill, with a base of concrete blocks supporting heavy wood frame construction. It was 32 feet wide and about 140 feet long. There were doors on each end of the lower floor, and the upper floor was reached by a rampway from the hillside to a door in the middle of the building. Both floors were covered with an 8-inch layer of pine shavings, a common practice in the chicken-raising industry. The plaintiffs purchased a 500-gallon tank from the defendant for $225, and it was delivered in May or June of 1949 and had a regulator attached to it. Baldwin then intended to use the tank on a flame cultivator but later decided to use it as a part of a heating system for his brooder house. He talked to Paul Presnell, the defendant's superintendent of installation and service, about a heating system for the brooder house before it was built, and Presnell, as an accommodation to the plaintiff, indicated on the plaintiff's sketch of the brooder house where the tank should be located, the proper size of pipes to be used, and suggested using a two-stage regulation of the pressure, whereby the pressure in the tank, of over 100 pounds per square inch, would be reduced to 10 pounds to convey the gas from the tank to the chicken house, a distance of 60 feet, and then further reduced for use in the brooders to a pressure of 8 ounces per square inch by a regulator inside the chicken house.
The plaintiffs purchased the pipes, the fittings and the brooders from other suppliers, buying only an additional regulator, to reduce pressure to 10 pounds per square inch, from the defendant, as he already had an 8-ounce regulator with the storage tank purchased from the defendant. Baldwin and his wife supervised the installation of the 12 brooders and the pipes conveying the gas to them; and when the system was almost complete, they called on the defendant to install the two regulators and to make the final connections of the system, so that the gas from the storage tank could be burned in the brooders.
The brooders weighed about 150 pounds each, and were installed by the plaintiffs according to the manufacturer's instructions, except that, in suspending the brooders from the overhead beams by ropes running through pulleys, the ropes were tied "with a double hard knot" to eyebolts in the vertical columns, instead of being counterbalanced with weights according to the instructions. From pipes running overhead, other pipes 10 1/2 inches long led down to rubber tubes carrying the gas to each brooder; and these tubes had 2 1/2 feet of slack, so that the brooders could be raised or lowered by the ropes for convenience in lighting them. The plaintiffs did not request the person who had sold them the brooders to see whether they were properly installed, and Baldwin conceded that it was not part of the defendant's job to check them.
John C. Thayer was sent by the defendant with an apprentice to connect the pressure regulators in September, 1949. They took the 8-ounce regulator from the tank and replaced it with a 10-pound regulator. Then they put the 8-ounce regulator, which they had removed from the storage tank, on the inside of the chicken house. Baldwin and Swafford watched from a distance of 3 feet, as Thayer made the connection, and when it was completed, Thayer sent the apprentice to turn on the gas at the main tank. When the gas was turned on, there was a loud click from the regulator, "like you would pop a piece Of metal," and upon attempting to light the first brooder, Thayer discovered that there was no gas coming through the regulator, and said, "We have got the thing on backwards." He disconnected it and sent the apprentice to the truck with it to change the fittings, as the regulator was to fit between 3/4-inch pipe on one side and 1 1/4-inch pipe on the other. The changes were made in a few minutes, and the regulator was again connected. After lunch, Thayer lighted two of the brooders on the ground floor, making the necessary adjustments of gas and air entering each burner. Each brooder had 6 burners, 6 pilot lights, and a thermostat.
Thayer then checked the system for proper pressure and for leaks with a U-gauge; after such tests he stated that the system was all right to use and that there were no leaks in it. The plaintiff Baldwin expected the service men to adjust all the brooders: "He didn't light any more brooders. I asked him, and he said, 'The system is O.K. and we have to get back to Atlanta because I am on another call.' "
On the morning of Saturday, September 24, 1949, the plaintiffs' employee, Leonard Swafford, began to light the brooders at about 7:30 a.m., so that they would be warm for a shipment of chickens expected to arrive that day at 10:30 a.m. Swafford first lighted the brooders downstairs, and then those upstairs, making all the necessary adjustments himself. Baldwin later checked them to be sure they were operating properly, bringing the temperature up to 80 degrees. It was a cold morning, and at the last check made, the brooders downstairs had reached a temperature close to 80 degrees, while those upstairs were at 60 or 65 degrees. Baldwin and his employee were downstairs repairing an automatic waterer, when they heard a "swoosh" noise over their heads. Baldwin went out at one end of the building and sent Swafford out at the other end to turn off the gas, which he did. Baldwin saw that the north end of the upstairs portion of the building was in flames, with smoke coming from the vents in the top of the building. Baldwin opened the door to the upper floor, and the flames then went all through that floor. The building burned completely in less than three-quarters of an hour, and none of its materials could be salvaged. The regulator inside the building was also destroyed.
Baldwin recalled that the downstairs brooders had not flared out when he heard the noise upstairs. He did not hear a brooder dropping, although he could have heard one drop unless it had dropped at the far end of the building. Baldwin stated that he did not know and had no idea as to what caused the fire.
According to Mrs. Baldwin's testimony, she understood that the defendant's service man would inspect the whole installation, making recommendations of any necessary changes, and she expected to pay whatever charges were made for such an inspection.
The testimony of Leonard Swafford was in substantial agreement with that of his employer, Charles Baldwin. He heard the sound in the north end of the building, and then cut off the gas supply to the brooders. He described the sound as a "big 'puh' noise, . . . it was a blow, like," and said that the clicking noise in the regulator when it was first installed was a snapping, "Like you would plump your fingers." Thayer at once stated that the regulator was on backwards, and took it off without even attempting to light one of the brooders.
T. J. Sutherland, an engineer called as an expert witness by the plaintiffs, testified as to the operation of a mechanical gas-pressure regulator. Changing pressures on the outlet side of the regulator, the side from which the gas flows to the appliances using the gas, cause a diaphragm inside the chamber of the regulator to move against a compression spring on the outside of the chamber. The spring expands as the pressure in the chamber decreases and is compressed by an increase of pressure in the chamber on the diaphragm. A lever, attached at one end to the center of the diaphragm, opens and closes a valve at the inlet side of the chamber on the other end of the lever, so that when the pressure of the gas in the chamber of the regulator, and going to the appliances, becomes less than 8 ounces per square inch, the spring expands, the lever opens the inlet valve, and gas at high pressure flows into the chamber until a pressure of 8 ounces is reached and maintained in the chamber. As this pressure is approached, the diaphragm compresses the spring, and the lever tends to close the inlet valve, so that less gas, or even none at all, is admitted to the chamber and appliances from the high-pressure line. As one of the defendant's experts put it, the regulator "literally cuts itself off," or adjusts to the varying demand of automatic appliances.
Sutherland also stated that, if the 8-ounce regulator were installed backwards, with a 10 pound pressure in the chamber, the valve would close, so that no gas would pass through, and the high pressure could possibly spring the metal disk supporting the composition diaphragm, pull the diaphragm out from the retaining screws around the edge, or strain it. A failure of the diaphragm in operation would allow the spring to expand and to open the valve, putting the full pressure of 10 pounds per square inch through the regulator and to the appliances, which would cause a flash of fire from the brooders, if they were burning.
George D. Ferguson, a heating engineer called as an expert witness by the plaintiff, testified that the pressure of 10 pounds entering the outlet side of an 8-ounce regulator, as it would if installed backwards, would damage it; and that diaphragms are not designed with a safety factor of 20 times. It was his opinion that the safety tests made by the defendants were insufficient, in that all the appliances were not operating. He also testified that the liquefied petroleum gas used was heavier than air.
Paul Presnell, the defendant's superintendent of installation and service, testified that he instructed Thayer to install the two-stage regulation, and did not instruct him to light the brooders because it was not requested. Presnell "understood that that would be taken care of by Mr. Baldwin."
John C. Thayer testified that he did not put the 8-ounce regulator in backwards and could not have done so because it had a left-hand threaded connection on one side and a right-hand thread on the other connection; that he tested for pressure and leaks; and that both tests were satisfactory. Baldwin requested him to show how to light one of the brooders, and he did this, although not ordered to do so by the defendant, his employer. Thayer made the proper adjustments, and let the brooder operate for fifteen or twenty minutes. Baldwin did not request him to light all the brooders, saying that he understood how to do it.
C. B. DeBerry Jr., a State liquefied petroleum gas inspector, was the expert witness chiefly relied on by the defendant. After explaining the function of the regulator as did the experts for the plaintiffs, he explained the operation of the regulator's safety or relief valve, which was an opening in the diaphragm that allowed gas at pressures of over 5 pounds per square inch to vent out of the regulator; this feature is required because pieces of dirt may prevent the valve from completely closing, thereby allowing the line pressure to build up in the chamber of the regulator and the remainder of the system. DeBerry stated that he had subjected diaphragms from the same make and type of regulator as was used in the plaintiffs' installation to pressures of 25 pounds without injury to the diaphragm; and it was his opinion that the regulator could not have been damaged by installation backwards, which would require some pipe-fitting work in view of the left and right-handed threads on the ends of the regulator. He did not think it was necessary to light all 12 brooders to show that the regulators were properly functioning. He agreed with the plaintiffs' experts that, if the diaphragm were ruptured, the gas would feed through the regulator to the appliances at a pressure of 10 pounds per square inch, causing them to gush out flame. To him, the "swooshing sound" meant that free gas vapors were being ignited when they were not in an explosive mixture with air. A "whoomp" would be heard in a building as the vapor ignited and burned to the source of the gas. There are no safety-pilot-light cut-offs on commercial brooder equipment; such a device turns off the gas supply to the burner when the pilot light is extinguished. Without such a device, if the pilot light were out, or if the burner were improperly adjusted, the vapor could come into the air unburned, and as it is 2 1/2 times heavier than air, it would go to the floor and form a mass.
The regulations issued pursuant to the Liquefied Petroleum Safety Act of 1949 required only that a system be adjusted to correct pressure and tested for leaks. If the system was correctly installed with regard to pressure and no leakage, the "swooshing noise" would indicate that some burner had gone out, resulting in a flow of raw fuel coming in contact with flame, and there were various possible causes of the extinguishing of one or more of the burners.
The jury returned a verdict for the defendant; the plaintiffs' amended motion for a new trial was overruled, and they excepted to that judgment.
1. In ground 4 of their motion for a new trial, the plaintiffs assign error on the charge of the court: "that, when a party upon whom the burden of an issue rests, seeks to carry it, not by direct proof, but by inferences, the circumstances he places in proof must tend in some proximate degree to establish the conclusion which he claims, and for this the facts shown must not only reasonably support that conclusion but also render less probable all inconsistent conclusions. In civil cases such as this the law requires that the plaintiff must, by a preponderance of the evidence, show that the circumstances relied upon are not only consistent with the conclusion sought to be established, but are also inconsistent with every other reasonable hypothesis, and in that connection I charge you, gentlemen, that direct evidence is that which immediately points to the question at issue. Indirect or circumstantial evidence is that which only tends to establish the issue by proof of various facts sustaining by their consistency the hypothesis claimed." The movants contend that this charge was harmful and prejudicial, in that it was an intimation on the part of the court that the movants had established their case by circumstantial evidence and inferences rather than by direct testimony, and because the charge was incorrect and placed a higher burden of proof on the plaintiffs than the law requires, even in a case where only circumstantial evidence is relied upon.
The charge is substantially in the language used by Judge Powell in Georgia Ry. &c. Co v. Harris, 1 Ga. App. 714, 717 (57 S. E. 1076). It was there stated that the rules of circumstantial evidence in civil and criminal trials are the same, except that "In civil cases this consistency with the one and inconsistency with the other is required to be established only by a mere preponderance; in criminal cases, to the exclusion of a reasonable doubt." The charge did not require that the plaintiff establish his contentions to the exclusion of every other reasonable hypothesis, nor that the circumstantial evidence be inconsistent with other reasonable theories beyond a reasonable doubt or to the point of logical demonstration, but only by a preponderance of evidence, and so did not place a higher burden of proof on the plaintiff than the law imposes in civil cases, where a contention is supported by circumstantial evidence.
While there was direct evidence of facts from which the jury might have concluded that the defendant was negligent in the installation of the regulators and in testing them after they were installed, nevertheless the question of what caused the fire, the defendant's negligence or some other cause, was one which could be determined only by inferences from the facts directly proved. The plaintiff Baldwin himself did not know what caused the fire. The noise, "swoosh" or "puh," which the plaintiff Baldwin and his helper heard in the north end of the upstairs of the chicken house, was contended by the plaintiffs to have been made by jets of flame gushing from the burners following a sudden increase in pressure. The defendant contended that the noise was made by the rapid combustion of a mass of the liquefied petroleum vapor which was not mixed in an explosive proportion with air, and which might have come from a leak or an unlighted burner. The charge did not intimate that the plaintiffs had sought to establish their whole case by circumstantial evidence, but was applicable only to any issue thus sought to be established. There were such issues, and the charge was applicable. This ground is without merit.
3. Ground 7 of the motion complains of the charge to the jury that the doctrine of res ipsa loquitur "is not applicable where there is some intervention or intermediary cause which produces or could produce the injury complained of instead of the act of the person sought to be charged," and that, if the jury "should find from the evidence that there were persons other than the agents and servants of the defendant who had access to the plaintiffs' premises and various pipes, regulators, thermostats, and so forth, confusing the system," then, in the absence of direct proof of the defendant's negligence, the jury would not be authorized to find against the defendant even though they found that a fire was caused on the premises by gas coming from the system.
Error was assigned on this charge on the ground that it misled the jury by indicating that there were persons other that the defendant's servants who had access to the gas system, when there was no evidence that any third persons had access to the system.
Ground 6 assigns error on the charge following the excerpt set out in ground 7 and as follows: "I charge you that the doctrine of res ipsa loquitur is not applicable to serve to prove the acts of negligence charged against the defendant when inferences of negligence by the defendant, the plaintiff, and a third party are equally authorized by the evidence." This was averred to be erroneous because it indicated that there were third parties whose negligence might be inferred, and because the possible inference of negligence was not restricted to the plaintiff and his servants, but included that of third parties, of which there is no evidence in the record.
The principle stated by the trial judge in these two charges is to the effect that the doctrine of res ipsa loquitur is not applicable when the premises or instrumentality causing the injury were not in the exclusive control of the defendant. Whether it was the plaintiffs, their servants, or third parties who had access to the premises is immaterial; any such facts would show that the defendant was not the only person who might have had something to do with the equipment which produced or caused the injury to the plaintiffs' property, thereby rendering the doctrine inapplicable. See Advanced Refrigeration Inc. v. United Motors Service Inc., 71 Ga. App. 576
, 579 (31 S. E. 2d, 605), and Spruell v. Ga. Automatic Gas &c. Co., 84 Ga. App. 657
, 665 (67 S. E. 2d, 178). In the present case, while the defendant was called upon to install the regulators and to make the final connections of the system, the rest of the installation had been made by the plaintiffs themselves, and the plaintiffs undertook to have their own servant light the brooders and make the adjustments thereon about an hour or two before the fire occurred, and some time after the installation of the regulators. Under the evidence, the doctrine of res ipsa loquitur was not applicable, and the charges complained of in grounds 6 and 7 were not erroneous for any of the reasons assigned.
4. Ground 8 of the motion complains of an excerpt from the charge set out in ground 7, pertaining as a whole to res ipsa loquitur, in which the trial judge stated: "in the absence of direct proof that the defendant, through its agents and servants, failed to put in the regulators properly and failed to test or inspect the regulators after their installation, you would not be authorized to find against the defendant." This is said to have been prejudicial error because it put the burden on the movants of proving both that the defendant improperly installed the regulators and that the defendant failed to test or inspect the same properly after they were installed, when a finding of either one of such acts of negligence on the part of the defendant would have authorized the plaintiff to recover. However, the trial judge was here charging the jury primarily that the doctrine of res ipsa loquitur would not apply in the absence of such direct evidence of negligence. The court had previously charged as follows: "But the plaintiff is not required to prove all the allegations of negligence set forth in their petition. If they show that the defendant was negligent in one or more of the particulars set forth in the petition and that such negligence was the proximate cause of the plaintiffs' injury," then the plaintiff could recover. (Emphasis added.) The court also charged: "If the jury believes from the evidence that, in some one or more of the particulars alleged in the petition, the defendant was guilty of negligence which proximately caused the injury," and the plaintiff is not barred by some other rule, then the jury should find for the plaintiff. The trial judge, having thus correctly charged on the point complained of, did not make a prejudicial error in placing the two elements of negligence mainly relied on by the plaintiffs in the conjunctive rather than in the disjunctive, in connection with his charge on the doctrine of res ipsa loquitur. Ground 8 does not require the grant of a new trial.
5. In ground 9 of the motion, error is assigned on the following charge: "Where a plaintiff relies on circumstantial evidence to prove either negligence on the part of the defendant, or that this negligence was the legal and natural cause of the plaintiffs' injuries, where the inference of negligence or proximate causation, if existing, depends on circumstantial evidence, and where there is direct testimony consistent therewith which shows that the defendant was without negligence or that the alleged acts of the defendant could not proximately cause the plaintiffs' injury, and this testimony is not subject to discredit, you should find against the plaintiff on those matters; for a fact cannot be established by circumstantial evidence which is perfectly consistent with the direct, uncontradicted, reasonable, and unimpeached testimony that the fact does not exist." It is contended that this instruction was misleading to the jury by indicating that the plaintiffs' case rested entirely on circumstantial evidence, when it was based on direct and opinion evidence, by indicating that there was direct testimony on the part of the defendant which was consistent with the plaintiffs' testimony but which showed that the defendant was without negligence, and by indicating to the jury that there was direct, uncontradicted, reasonable and unimpeached testimony that the facts established by the circumstantial evidence of the plaintiff did not exist.
The defendant (as defendant in error here) asserts in its brief that the plaintiffs could prove their case only by circumstantial evidence, at least with regard to the cause of the fire. However, there was no uncontroverted direct testimony offered by the defendant which tended to disprove the plaintiffs' theory as to the cause of the fire. The plaintiffs' direct evidence was consistent with that of the defendant in showing that the defendant's employees tested the plaintiffs' system for pressure and for leaks after the installation of the regulators; that the defendant's service man lighted one or two of the twelve brooders; that at a later date in the mouth, when the brooders were all lighted for the first time, a "swooshing" noise was made in the upper story of the building; and that it then burned down. But the direct evidence of the plaintiffs was that the defendant's employees had installed the regulator backwards at first, had turned the gas into it, and then had reinstalled the regulator in the proper direction. The defendant's evidence was in direct conflict on this point. None of the defendant's uncontroverted direct evidence tended to disprove the hypothesis relied on by the plaintiff: that the defendant's negligence in installing the regulator backwards so damaged it that it failed after an hour or two of operation, allowing a sudden increase in pressure to reach such of the appliances as had not been cut off by their thermostats, namely, those on the upper floor which were lighted last. It is true that there was expert opinion evidence which tended to disprove the plaintiffs' theory, but it was likewise controverted. "The opinion of an expert witness is not conclusive upon the jury. Such testimony is intended to aid them in coming to a correct conclusion upon the subject; but the jury is not bound by such opinion, and can disregard it." Manley v. State, 166 Ga. 563 (19) (144 S. E. 170). Opinion testimony of expert witnesses may thus be disregarded by the jury, although reasonable, uncontradicted, and unimpeached direct testimony may not. Lankford v. Holton, 187 Ga. 94 (9), 102 (200 S. E. 243); Otwell Motor Co. v. Hill, 79 Ga. App. 686, 690 (54 S. E. 2d, 765).
Since there was no uncontroverted direct evidence offered by the defendant which disproved the plaintiffs' theory of causation, but only opinion evidence, which was controverted by that of the plaintiffs' expert witnesses, the charge was misleading to the jury and not applicable under the evidence. The charge also intimated that the defendant's theory, that the fire was not caused by the acts of its employees, was supported by direct evidence, rather than by circumstantial and opinion evidence. The charge may well have aided the jury in reaching their verdict for the defendant, and so the error in giving this charge was harmful and prejudicial. Ground 9 of the motion for a new trial shows error which requires that the judgment refusing a new trial be reversed.
6. In ground 10, the movants complain of the combination of the charges previously complained of in grounds 4 through 9, with some additional excerpts to the effect that the plaintiff may not recover unless he proves by a preponderance of the evidence that the negligence of the defendant was the proximate cause of his injury and damage. The contentions that the charges were not applicable, and that the cumulative effect of these charges amounted to the direction of a verdict for the defendant, are without merit.
The general grounds of the motion are not passed upon, as the trial court erred in overruling the motion for a new trial for the reasons set forth in division 5 of this opinion.
Judgment reversed. Felton and Worrill, JJ., concur.