National Surety Co. v. Williams , 74 Fla. 446 ( 1917 )

West, J.

After stating the facts.

Numerous errors are assigned and árgued, and while we may not take them up seriatim, we shall consider the several questions presented by them.

It is first contended that the court below erred in overruling the demurrer of the defendant company to the first-count-of the plaintiff’s declaration, and in support of this contention it is urged that - it is not distinctly averred -in this count that the plaintiff had suffered or sustained pecuniary loss under the terms of the bond sued on.

The declaration contains this ayerment: “the said defendant, Alonzo D. Wilder, while in the employ of the said Sopchoppy State Bank, at its banking house, or office, in the said town of Sopchoppy in Wakulla County, Florida' and while the said bond, or writing obligatory, under seal, was in full force and effect, and none of the conditions precedent to recovery had been in any ' way violated, ignored, or evaded, was guilty of fraud and dishonesty, including larceny or embezzlément and misappropriation of funds, as is inore particularly' shown by the itemized statement of the loss of said Sopchoppy State Bank furnished as the proof of such loss to the said defendant, National Surety Company, under and in accordance with the terms of said bond, or writing obligatory, under seal, and within the time therein and thereby required (a copy of which proof of loss, and itemized statement of the loss of said Sopchoppy State Bank in the manner and by the means- so sustained as aforesaid, being hereto attached, marked exhibit ‘B’ and prayed to be taken as part hereof by reference). That the said property and funds so taken, embezzled or misappropriated. by the said defendant, Alonzo D. Wilder, within the time hereinbefore stated, to-wit: Between the 1st day of April, 1912, at twelve-o’clock noon, and the 29th day of July, A. D. 1912; was the property of the said Sopchoppy State Bank by means whereof the said defendant, National Surety Company, became, was and is liable to pay to the said Sopchoppy State Bank and is indebted to the said Sopchoppy State Bank for the full sum of its said bond, namely, $10,000.00, and the said defendant, Alonzo D. Wilder, by reason of his wrongful acts in the premises set forth, became, was and is liable to pay the said Sopchoppy State Bank, and is indebted to the said Sopchoppy .State Bank for the full sum lost by the said bank by reason of his said wrongful acts.”

An exhibit may by apt words be made a part of a declaration ex contractu or ex delicto, and where both parties as well as the court below, have treated such an exhibit as, a part of the declaration which can be reached by demurrer, this court will follow the example of the parties and the trial court and likewise so regard it when the case comes here on writ of error. Woodbury v. Tampa Water Works Co., 57 Fla. 243, text 249, 49 South. Rep. 556; State v. Seaboard Air Line Ry., 56 Fla. 670, 47 South. Rep. 986.

It. is true that the count of the declaration under consideration may not standing alone, and without the aid of the exhibit expressly and clearly set out the specific acts of the defendant Wilder which amounted to and constituted “fraud and dishonesty, including larceny or embezzlement, forgery and misappropriation of funds” within the meaning of these terms as they are employed in the bond, but if the exhibit which is made a part of this count ,taken in conection with its allegations, show acts and transactions of Wilder which come fairly within the definition of either of these terms and by such acts or transactions it appears that the plaintiff suffered pecuniary loss, then the alleged omission is supplied and the count is rendered good.

From the hill of particulars, which is made a part of this count, it appears, among other items, that during the time that Wilder was cashier of said hank he loaned to himself without authority, large amounts of the hank’s funds aggregating a sum equal to one-third of the hank’s capital stock; and it also appears from said hill of particulars that there was a shortage in the hills receivable, the bills receivable account showing one amount whereas an inventory of the bills receivable themselves showed a considerable less amount.

The declaration also contains the following averment: “That by reason of the fraud and dishonesty, including larceny ,or embezzlement, or the misappropriation of funds, as hereinbefore set forth, by the said defendant, Alonzo D. Wilder, the said defendant, Alonzo D. Wilder, became indebted to the said Sopchoppy State Bank for such sum, or sums, and the said defendant, National Surety Company, became liable to the said Sopchoppy State Bank for such wrongful acts aforesaid of the said defendant, Alonzo D. Wilder, to the extent and in the amount of not exceeding $10,000.00, and the interest thereon from the date of such acts of fraud, dishonesty, including larceny, or embezzlement ,or misappropriation of funds, on the part of the said Wilder, but the said defendants have not, nor have either of them, paid the said sum, or any part therof to the said Sopchoppy State Bank ,or the plaintiff herein, though often requested so to do, but has neglected and refused, and still does neglect and refuse to pay the same to the great daamge of the plaintiff.”

The expression “as hereinbefore set forth” in the last quoted paragraph relates to the averment of fraud and dishonesty including larceny or embezzlement, or the misappropriation - of -funds of - said. Wilder to which averment the bill- of particulars as attached and ..made a part, and we think Such- averments are prima- facie sufñdient to-show a:misappropriation-of .funds-and pecuniary loss to the bank under the terms of the bond. Field v. Howry, 132 Mich. 687, 94 N. W. Rep. 213.

In the case of Standard Phosphate Co. v. Lunn, 66 Fla. 220, 63 South Rep. 429, in considering the question of the sufficiency of a declaration, this court said: “a court may not be held in error for overruling a demurrer to - an ambiguous- pleading where such a pleading does not put the opposing party at a disadvantage and when under the allegations. or averments of the pleading. a cause of-action or a-defense may fairly be shown, by proper evidence. In such cases the administration of justice- may be facilitated by a trial on. the, facts, the party whose pleading is assailed being then advised of its asserted defects, so as- to- furnish the requisite proofs to fully sustain the action or defense, and the costs following the event of the litigation.”

While we do not wish'to be understood as approving this form of pleading, we are of the opinion that under the allegations of this count of the declaration a cánse of action was stated, and that no reversible error was committed by the Circuit Judge in overruling the demurrer. Standard Phosphate Co. v. Lunn, supra; Tampa & J. R. Co. v. Crawford, 67 Fla. 77, 64 South. Rep. 437.

It is also urged that the court below erred in Permitting the plaintiff to offer in evidence and in denying defendant’s motion to strike from the evidence the minutes of the meeting-of the promoters and organizer of tie Sopchoppy State Bank, held on February 1st, 1912, at which meeting by laws for the conduct of the affairs ot.said bank were adopted, and appear as a part of the minutes of the meeting. Letters patent incorpoLating said bank were not issued until March 6th, 1912, and on behalf of plaintiff in error it is contended that inasmuch as this bank had no corporate existence at the time the meeting was held at which the by-laws were adopted, they cannot be held to be the by-laws of the corporation. The reply of the defendant in error is that the by-laws were ratified by the corporation at a meeting of the stockholders held on May 4th, 1912. From the minutes of the meeting of the stockholders of the bank held on May 4th, 1912, it appears that the minutes of the meeting held on February 1st, 1912 of which the by-laws then adopted were a part, were “read and unanimously approved as read.” At the same meeting the by-laws were amended so as to increase the number of directors of the corporation and several committees- appointed at the previous meeting reported and the reports were received and approved.

It is well settled that a corporation may ratify, confirm or adopt the contracts of its promoters (Cook on Corporations, 7th ed. Sec. 707), and there -is no reason why the stockholders of a corporation may not ratify by-laws adopted by its promoters before letters patent have been issued arid delivered to it. The Circuit Judge held upon the showing made in this casé that the by laws had been ratified by the stockholders of the corporation as the by-laws of such corporation, and we are not prepared to say that he erred in doing so.

Plaintiff in error also contends that the suit was not brought within the time prescribed by the terms of the bond. This contention requires a consideration of the following provisions of the bond:

“2nd. Upon becoming aware of any act which, may be made the'basis of a claim hereunder the employer shall give immediate notice thereof to the Surety at its home office by telegraph at .Surety’s expense and by a registered letter, and within ninety (90) days after the date of said notice, file with the Surety an itemized claim hereunder, duly sworn to, and upon request produce for investigation all books, vouchers and evidence which the Surety may require, and lend every assistance to bring the employee to justice.”

“8th. No action or proceeding at law, or in equity, shall be brought to recover from the Surety any claim under this bond. unless commenced within a period of twelve months after the date the employer shall have given notice of claim.”

Such conditions are valid and enforceable, the contract having been entered into before Chapter 6465 Acts of 1913 became effective (Taylor v. Glens Falls Ins. Co., 44 Fla. 273, 32 South. Rep. 887; Jackson v. Fidelity & Casualty Co., 75 Fed. Rep. 359; Riddlesbarger v. Hartford Ins. Co., 7 Wall. (U. S.) 386), but as a preliminary inquiry we should consider the nature of the obligation of the plaintiff in error on this bond. If it is one simply of suretyship doubtful questions should be resolved in its favor; but if, on the other hand it is entered into and the bond is issued for a money consideration and for pecuniary gain the surety company is regarded as an insurer, whose contracts, being drawn by itself are, if there is ambiguity in the language employed in them to be resolved most strongly against it. The obligation of the plaintiff in error is, we think, clearly within the latter class. It is in the form of an indemnifying bond or policy of insurance for the integrity of Wilder as Cashier of said bank, and is in effect a contract of insurance to which the rules governing ordinary contracts of insurance are applicable. 32 Cyc. 306-7; Bryant v. American Bonding Co., 77 Ohio St. 90, 82 N. E. Rep. 960; American Bonding Co. of Baltimore v. Morrow, 80 Ark. 49, 96 S. W. Rep. 613; Hormel & Co. v. American Bonding Co. of Baltimore, 112 Minn. 288, 128 N. W. Rep. 12; People ex rel. Kasson v. Rose, 174 Ill. 310, 51 N. E. Rep. 246; Bank of Tarboro v. Fidelity, & Deposit Co. of Maryland, 128 N. C. 366, 38 S. E. Rep. 908; Champion Ice Mfg. & Cold Storage Co. v. American Bonding & Trust Co., 115 Ky. 863, 75 S. W. Rep. 197; American Surety Co. of New York v. San Antonio Loan & Trust Co., (Tex. Civ. App.) 98 S. W. Rep. 387; Remington v. Fidelity & Deposit Co. of Maryland, 27 Wash. 429, 67 Pac. Rep. 989; Cowles v. United States Fidelity & Guaranty Co., 32 Wash. 120, 72 Pac. Rep. 1032; American Surety Co. of New York v. Pauly, 170 U. S. 133, 18 Sup. Ct. Rep. 552. In the last cited case the Supreme Court of the United States in dealing with the question of the construction of a similar bond, said: “If, looking at all its provisions, the bond is fairly and reasonably susceptible of two constructions, one favorable to the bank and the other favorable to the Surety Company, the former, if consistent with the objects for which the bond was given, must be adopted, and this for the reason that the instrument which the court is invited to interpret was drawn by the attorneys, officers or agents of the Surety Company. This is a well established rule in the law of insurance. National Bank v. Insurance Co., 95 U. S. 673; Western Ins. Co. v. Cropper, 32 Penn. St. 351, 355; Reynolds v. Commerce Fire Ins. Co., 47 N. Y. 597, 604; Travellers’ Ins. Co. v. McConkey, 127 U. S. 661, 666; Fowkes v. Manchester & Life Ass’n., 3 Best & Smith, 917, 925. As said, by Lord St. Loenards in Anderson v. Fitzgerald, 4, H. L. Cas. *484, *507, ‘it (a life policy) is of course prepared by the company, and i? therefore there should be ány ambiguity in it, must be taken, according to law, most strongly against the person who prepared it.’ There is no sound reason why this rule should not be applied in the present case. The object of ’thé bond'in suit was to indemnify or insure the bank against loss arising from any act of fraud or dishonesty On the part of O’Brien in connection with Ms duties as cashier, or with the duties to which in che emyloper’s service he might be subsequently appointed. That object should not be defeated by any narrow interpretation of its provisions; "nor by adopting a construction favorable to-the company if there be another construction equaly admissible under the terms of the instrument executed for the protection of the bank.”

The rule for the interpretation ’ of insurance contracts is that “in all cases the policy must be liberally construed in favor of the insured so as not to defeat without a plain necessity his claim to the indemnity which in making the insurance it was his object to secure.” L’Engle v. Scottish Union & National Fire Ins. Co., 48 Fla. 82, 37 South. Rep. 462; Caledonian Ins. Co. v. Smith, 65 Fla. 429, 62 South. Rep. 595.

The alleged defalcation of Wilder as Cashier of the bank was discovered by the bank in July, 1912, and the Surety Company, plaintiff in error, was immediately notified by.it thereof by telegraph and registered letter. The proof of loss with an itemized, statement of claim under the bond was made in. October, 1912 and this suit on the bond was commenced in October, 1913.

It is conceded that the suit was “commenced within a period of twelve months after the date” upon which the “itemized claim hereunder- duly sworn to” was filed with the surety, but it is said that this- is not sufficient, and-it is contended that a proper interpretation of the two quoted provisions of the bond lead to and require the conclusion that a suit to recover on the bond must be commenced within a period of twelve months after the “immediate notice” to the surety by telegraph and registered letter “of any act which may be made the basis of a claim” under said bond. We cannot. accept this view. The “notice of claim” referred to in paragraph 8th, after the giving of which- suit shall be brought within twelve months, is in our opinion the itemized claim duly sworn to and not the immediate notice of any act which may be made the basis of a claim required to be given by paragraph 2nd. When this notice is given there may in fact be no claim. It is simply notice of an act or condition that may develop into a claim. The language is clearly susceptible of this interpretation. The original bond is before us and is upon the printed form of the Surety Company, plaintiff in error, and’ as we have seen in such a case where the language employed is ambiguous of doubtful, it must be given the strongest interpretation against the insurer that it will reasonably bear. We conclude therefore that the, court below did not err in holding that the suit was brought within the twelve months period after the notice of claim had been given. Remington v. Fidelity & Deposit Co. of Maryland, supra.

It is next contended that the court erred in denying the motion of plaintiff in error to strike from the redirect examination of the witness Lawhon all testimony of this witness relating to what was designated by him as the Jacksonville Certificate of Stock.

The testimony on this point was elicited upon the cross-examination of the witness by counsel for plaintiff in error, and it was not objected to until the evidence was dosed, when a motion was made to strike the testimony on the ground that what took place between the witness and Wilder after Wilder’s connection with the bank had ceased could in no way bind the Surety on his bond as Cashier.

It is urged now on behalf of plaintiff in error that the transaction alluded to, and the conduct on the part of Wilder in connection with it, testified above, tended to discredit him with the jury and to prejudice the status of said Company as Surety on his bond.

It appeared from the testimony that the witness had given two sets of notes, each aggregating $1,000.00, one set for stock in a Jacksonville Insurance Company, the other for stock in an Atlanta Insurance Company. All these notes were handled by the bank, but no claim for loss is made on account of its having handled the notes given for the Jacksonville Certificates. This matter having been referred to by the witness upon his cross-examination, it cannot be said to have been prejudicial error for him to explain, without objection, upon redirect examination what occurred between him and Wilder in reference to it. The rule is that objections to the admissibility of evidence must as a general thing be made when it is offered, or its admissibility cannot be assigned as error. Schley v. State, 48 Fla. 53, 37 South. Rep. 518; Williams v. State, 58 Fla. 138, 50 South. Rep. 749; McMillan v. Reese, 61 Fla. 360, 55 South. Rep. 388. There was no reversible error in this ruling.

Other assignments are based upon several special charges given or refused by the Circuit Judge defining various words and terms contained in the bond sued upon. In view of the difference of opinion that seems to exist in regard to the meaning and application of the words and terms so defined, it was proper, we think, that the instructions complained of be given, and it does not appear that such instructions were erroneous.

The refusal of the Circuit Judge to give the following charges requested by plaintiff in error is assigned aS error:

“6. I further charge you that if you find from the evidence that any of the notes held by the Bank, and that came into the possession of the plaintiff, that are scheduled in Sheet No. 3, Exhibit B, and Sheet No. 4, Exhibit B, attached to the declaration, were not discounted by the Bank in the usual way, that is by the payment of money, but that time certificates of deposit were issued to the holder of such notes by the Bank, and that such certificates were not paid by the Bank within the twelve months from April 1st, 1912, at 12 o’clock noon, to April 1st, 1913, at 12 o’clock noon, or since and before the institution of this suit, then the amounts of such note or notes should not be included in any finding you should make for the plaintiff, if you should, find for him.”

“7. I further charge you that if you find from the evidence that the two notes of J. R. Lawhon, dated June 25th, 1912, and payable twelve months after date, for $500.00 each, and the two notes of C. I. Guilford, dated June 27th, 1912, and payable twelve months after date, for $500.00 each, and the three notes of J. W. Wilson, dated June 27th, 1912, and payable twélve months after date, for $500.00 each, and the two notes of A. D. Wilder, dated July 11th, 1912, and payable twelve months after date, for $50.0.00 each,-which were offered in evidence by the plaintiff, .were-taken by- the Bank from-the holders and time certificates of the bank - were issued. to the holder or holders,. and that- said certificates have not been paid by the bank or the Receiver, you should not include any of said notes in the liability of the defendant, Rational Surety Company under, its bond, if you should find any liability at all on the part- of said defendant.”

Did the Circuit Judge err in refusing to give this charge?

The agreement- of the Surety, on the bond was to reimburse'the bank upon satisfactory proof-of -loss, “for any pecuniary loss sustained by” it “by any act of fraud and dishonesty,., including larceny or embezzlement, forgery and misappropriation of funds.’

The appears from the testimony that the notes referred to in these requested charges were taken by Wilder for the bank, and that certificates of deposit were issued therefor. The certificates had not at the time of the institution of this suit been paid and the bank still held the notes for which they were given. In this situation can it be said that the bank has sustained pecuniary loss as a result of the fraud and dishonesty including rarceny or embezzlement, forgery and misappropriation of funds by Wilder, its Cashier?

With reference to the notes taken from, persons other than Wilder himself we think the claim is not sustained. It may be that in taking such notes he acted in good faith believing it to be for the best interest of the bank, and it appears that two of -these notes were made by .a vice-president and-director of the bank -and the others were made by citizens of the community. At any rate it cannot be said that there was any fraudulent or dishonest design or purpose in taking such notes, nor that the bank has sustained “pecuniary loss” as a result of the fraud and dishonesty, including larceny or embezzlement, forgery and misappropriation of the funds by its Cashier Wilder on account of this transaction.

With reference however to the two notes of Wilder himself, referred to in these charges, the case is different. It appears from the testimony that these notes were put in the bank by Wilder on July 11th, 1912, eighteen days before he left the bank. He testifies that the notes were put in the bank and a certificate of deposit was issued by the bank to the Bock Island Sponge Company for a like amount, whereupon this company issued to him, Wilder, its certificate of stock for a number of shares cf its capital stock which lie was- purchasing. In other words Wilder was purchasing certain shares of stock in this company with the funds of- the hank and placing his note in the bank for the funds which he used for this purpose. A “misappropriation of funds” does not necessarily mean a misappropriation of actual cash, because “funds” is a much more comprehensive term, and may include other assets or property of the bank. Montgomery County v. Cochran, 57 C. C. C. 261, 121 Fed. Rep. 17; In re Tatum, 61 App. Div .(N. Y.) 513, 70 N. Y. S. 634; Miller v. Bradish, 69 Iowa 278, 28 N. W. Rep. 594; Dow v. United States, 27 C. C. A. 140, 82 Fed. Rep. 904; Ramsey v. Cox, 28 Ark. 366. And when Wilder put his' note, which was of no value in the bank and 'issued a certificate of deposit of the bank for a like amount which he used to purchase property for himself, the transaction was in legal effect -the -same as if he had taken the cash out of the bank and used it in the purchase of such property. In this situation it cannot be successfully contended that he has not misappropriated the funds of the bank from which it has siiffered pecuniary loss; nor that such misappropriation was hot fraudulent and dishonest. It follows, therefore, that while the defendants were entitled to a charge of this kind with reference to the notes of Lawhon, Guilford and Wilson, the court cannot be held in error for refusing to give the charge as drawn ,because the defendants were not entitled to such a charge with reference to the notes of Wilder.

We are of the opinion that the plaintiff in error.is not liable under its bond for the amount of Wilder’s notes given for twenty shares of stock in the bank for which certificates of stock were issued to him find that the Circuit Judge erred in .refusing to give the requested instruction on this subject. It appears that Wilder gave his notes for this .stock ,as did several other stockholders, dfid he testifies, and it is not contradicted, that when his connection with the bank was severed, inasmuch as these, notes were still unpaid, he left the certificates in the bank, and thereafter made no claim to own the stock. We think that it connot be said that the bank has sustained pecuniary loss as a result of this transaction.

The court also erred in refusing to give the charge requested in reference to the items included in the statement of “errors and discrepancies,” since there was no evidence to show that such errors resulted from the fraud and dishonesty of Wilder. This is likewise true of the items included in the statement of overdrafts, and of the small item on the individual ledger credited to Wilder’s personal account not appearing on the cash book.

It will be noted that the various transactions which are the basis of this action' occurred before the passage of Chapter 6426, Acts of 1913, Laws of Florida.

With reference to the remaining items in this claim, namely, the notes of Wilder as shown by Sheet No. 4, Exhibit ‘B’ as follows: note dated May 23rd, 1912, for $500.00, note dated May 30th, 1912, for $350.00, note dated June 7th, 1912, $360.00, note dated June 10th, 1912, $350.00, noted dated June 15th, 1912, $290.00, note dated June 22nd, 1912, $75.00, note dated July 5th, 1912, $300.00, the two notes dated July 11th, 1912, each for $500.00, and $129.25 of note dated May 29th, 1912, not used in the purchase of bank stock, aggregating $3,354.25, and the amount of the difference between his bills payable account and the actual amount of the bills payable held by the bank. amounting to $2,445.00, we think the case was made out.

Where it is proven that a Cashier of a bank has “loaned” to himself, without authority, excessive amounts, of the bank’s funds, without taking security therefor, and that his bills receivable are considerably less in their aggregate amount than his bills receivable account carried on the books of the bank, it cannot be said that it has not been proven that he has misappropriated the funds of the bank. The fact that he placed his worthless notes in the bank for the amount of the funds used or taken by him does not affect the substance of the transaction, nor change its real character. It is admitted in this case that the bills receivable account is in excess of the aggregate amount of the bills receivable actually held by the bank, and it is apparent that .the jury declined to accept Wilder’s éxplanation of this difference.

It is not necessary for the plaintiff in a suit on a bond conditioned as this bond is conditioned, to offer proof sufficient to convict the principal of embezzlement or larceny before liability upon the bond attached: Champion Ice Mfg. & Cold Storage Co. v. American Bonding & Trust Co., supra. In this case, considering a similar question, the Supreme Court of Kentucky said: “It is not necessary, in order to fix the liability. of appellee upon the bond, that appellant should produce, in. support of any claim that it might have arising thereunder, such proof as would convict Weitkamp of the crime of larceny or embezzlement as defined by the laws of Kentucky. Such a narrow construction of" the provisions of the contract is not required by the law, and was never contemplated by the parties to it. While larceny is a common-law crime, yet in this State it is to a great extent statutory. Embezzlement is purely a statutory crime, but the terms ‘larceny’ and ‘embezzlement,’ in the bond or policy sued, on, are used as generic terms to indicate the dishonest and fraudulent breach of any duty or obligation upon the part of an employe to pay over to his employer, or account to him for, any money, securities ,or other personal property, the title to which is in the employer, that may in any manner come into the possession of the employe.”

It appears that after Wilder left the bank he deposited in it from time to time sums aggregating $1,417.93, and that when the .receiver was appointed he, Wilder, had a balance of that amount on deposit in the bank. It is now. insisted^ that this amount should be deducted from any.amount for which his surety, the plaintiff-in error, is liable. We cannot accept this view. We have seen that Wilder had" various obligations in the bank, and if this depositas to be applied to his obligations, the plain tiff in error has no right to insist that it be applied to the ones that it is liable for.

Since the items improperly included in the verdict are separable and may be eliminated and the items held to be proven were necessarily included in it, the amount of either of them alone being in excess of the difference between the amount of the verdict and the total amount of the claim, the plaintiff below will be given the privilege of remitting the amount of the items improperly included in the judgment. Greenblatt v. McCall & Co., 67 Fla. 165, 64 South. Rep. 748; Seaboard Air Line Ry. v. Simon, 56 Fla. 545, 47 South. Rep. 1001, 20 L. R. A. (N. S.) 126, 16 Ann. Cas. 1234; Turner v. Adams, 39 Fla. 86, 21 South. Rep. 575; Arnau v. First Nat. Bank, 36 Fla. 395, 18 South. Rep. 790.

If the defendant in error do within thirty days enter a remittitur for the amount of the items improperly included in the judgment, thus reducing the amount of the judgment to $5,799.25, the sum of the two items held to be within the terms of a bond and proven at the trial of the case, with interest from the date the action wás begun, effective as of the date of the rendition of the judgment, the judgment will be affirmed; otherwise the judgment is reversed.

Browne, C. J. and Taylor, Whitfield and Ellis, J. J., concur.