Savaikie v. Kaiser Foundation Hospitals

Filed 6/23/20; Certified for Publication 7/16/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
TERESA SAVAIKIE et al., B291120
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC615972)
v.
KAISER FOUNDATION
HOSPITALS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Melvin. D. Sandvig, Judge. Affirmed.
Carpenter, Zuckerman & Rowley, Paul Zuckerman and
Robert J. Ounjian for Plaintiffs and Appellants.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson;
Law Offices of Lebeau Thelen and Alan J. Mish for Defendant
and Respondent.
_________________________
Plaintiffs Teresa, Michael, and Ryan Savaikie appeal from
a judgment in favor of defendant Kaiser Foundation Hospitals
(Kaiser) after the trial court granted Kaiser’s motion for
summary judgment. Appellants sued Kaiser for the acts of its
volunteer Ralph Steger. Steger struck and killed 14-year-old
Wyatt Savaikie as Steger was driving his own vehicle home from
an assisted living facility where he provided dog therapy to a
Kaiser patient. Appellants acknowledge an employer is not liable
for the acts of employees while they are coming to or going from
their place of employment, but appellants contend there are
triable issues of fact as to whether the “required vehicle use”
exception to the coming and going rule applied in this case.
Appellants also contend there are triable issues of fact as to
whether Kaiser received an “incidental benefit” from Steger’s use
of his personal vehicle and whether Steger had specially equipped
his vehicle to transport his therapy dog; they claim both
circumstances are two additional independent exceptions to the
coming and going rule. Finally, appellants contend Steger’s stop
at a credit union on the way home from the therapy session did
not insulate Kaiser from vicarious liability for Steger’s
subsequent accident. We find no triable issues of material fact
and affirm the judgment.
BACKGROUND
On July 16, 2015, Steger drove to an assisted living facility
in his own vehicle and provided volunteer pet therapy to a Kaiser
patient. After completing the therapy session, Steger drove to a
credit union to conduct personal business and then began his
drive home. On the way home, Steger struck and killed Wyatt
Savaikie while the young man was on foot in a crosswalk.
2
Wyatt’s parents Teresa and Michael Savaikie filed this
lawsuit alleging multiple causes of action against several
defendants. Wyatt’s brother, Ryan Savaikie, witnessed the
collision and he alleged a claim for negligent infliction of
emotional distress.
Appellants settled with defendants City of Santa Clarita,
County of Los Angeles, and Southern California Edison.
Thereafter, they dismissed the State of California as a defendant.
In April 2017 appellants added respondent Kaiser as a
defendant, ultimately alleging Kaiser was vicariously liable for
Steger’s negligence.
In January 2018, Kaiser filed a motion for summary
judgment on the ground that Steger was not acting within the
scope of his employment at the time of the collision. Kaiser
offered evidence that Steger was driving home from the location
where he volunteered and argued the going and coming rule
applied, that is, an employer was not liable for an employee’s
negligent acts committed during the commute to or from work.
Appellants opposed summary judgment, arguing the
“required vehicle use” exception to the coming and going rule
applied; they also asserted two related exceptions, which they
refer to as the incidental benefit and special mode of
transportation exceptions. They relied in large part on the
deposition testimony of Linda Miranda, Kaiser’s “volunteer and
bereavement director supervisor and coordinator” and Kaiser’s
designee as the person most qualified to testify about Kaiser’s
dog therapy program, Steger’s participation in that program, and
Kaiser’s investigation of the accident. Although Miranda
testified Kaiser did not require Steger to use his own vehicle to
provide pet therapy, appellants contended other portions of her
3
testimony, together with Steger’s testimony, create a triable issue
of material fact as to whether the required vehicle exception
applied.
According to Miranda, Kaiser did not provide
transportation for pet therapists or their animals. Pet therapists
could use whatever transportation they wished, including public
transportation or ride sharing. “So it’s not a requirement for
them to, you know, for them to take their own vehicle.” Miranda
did not know whether Steger used his own vehicle to travel to
therapy appointments; she did not have this information for any
of the pet therapists.
Miranda testified that at the time of the accident in July
2015, Kaiser did not provide mileage reimbursement to volunteer
pet therapists. She also testified that if a volunteer used a
personal vehicle or supplied Kaiser with a driver’s license, the
volunteer was annually required to provide proof of vehicle
insurance.
Appellants also relied on Steger’s deposition testimony. In
particular, they relied on this testimony from Steger, who began
volunteering in 2009:
“Q: Did you ever operate Kaiser vehicles to go from one
location to another to provide pet therapy?
“A: No.
“Q: So their arrangement was that you would drive your
own vehicle?
“A: Yes.”
Appellants cited Steger’s testimony about Kaiser’s mileage
reimbursement policy. According to Steger, Kaiser “said they
had it, but I never took it.” Although there is some tension
between Steger’s testimony on this topic and Miranda’s, Steger
4
did not claim Miranda ever offered him mileage reimbursement.
Further, Miranda’s testimony was focused on Kaiser’s policy in
July 2015, as she had only worked for Kaiser for about 4 years
and had not explained the program to Steger when he started
volunteering in 2009.
Appellants also relied on Steger’s testimony about Kaiser’s
insurance requirements, although that differed slightly from
Miranda’s explanation of the requirement. Steger stated Kaiser’s
insurance requirement was “a block thing because there’s some
people that will take people to places. So they just put us all in
there and make us all do the same thing.” He clarified that
“instead of saying we need this from you and this from you, they
say, we need this from everyone.” Steger agreed insurance
coverage was checked annually.
Steger also gave testimony about how he transported his
therapy dog. He put the dog all the way in the back of the vehicle
and “hook[ed] her in like a seatbelt back there so she can’t move
around.” There was no barricade between the back area and the
seats but “the restraint that I have her on, she can’t get up
there.” He explained: “She had the harness. There’s the clip in
the back for like a cargo net or something like that. And I have a
little leash that’s maybe 18 inches long, and I hook her to that.”
Finally, appellants argued discovery responses by Kaiser
established indisputably that pet therapists provided their own
dogs and were responsible for getting themselves and their dogs
to the therapy sessions, which occurred at various and changing
locations.
The trial court granted Kaiser’s motion for summary
judgment. The trial court found the going and coming rule
applied, and no evidence supported the application of the
5
required vehicle exception or any variation thereof. Plaintiffs
timely appealed. Steger is not a party to this appeal.
DISCUSSION
In granting Kaiser’s motion for summary judgement, the
trial court ruled that Steger, although a volunteer, was to be
treated as a paid employee for purposes of vicarious liability. 1
The court also ruled that to hold Kaiser liable for Steger’s
accident, Steger must have struck Wyatt in the course and scope
of his volunteer work for Kaiser.
Then the trial court found: “The evidence establishes this
is not the case. At the time of the accident, Steger had completed
his volunteer dog therapy. (Separate Statement, Fact No. 2.)
Steger had left the location where he was providing dog therapy
and had no intention of returning that day. (Separate Statement,
Fact No. 3.) Steger went to Lockheed Federal Credit Union to
make a deposit unrelated to his volunteer work. (Separate
Statement, Fact No. 3.) After Steger left the credit union, he was
going home at the time of the accident. (Separate Statement, Fact
No. 4.)
The court summarized the general rule: “Based on the
‘going and coming’ rule, an individual is not considered to be
within the scope of his/her duties when going to or coming from
his/her place of employment/volunteer work. (Ducey v. Argo
Sales Co. (1979) 25 Cal. 3d 707, 722 [(Ducey)]; Santa Rosa Junior
College v. WCAB (1985) 40 Cal. 3d 345; Wilson v. WCAB (1976)
1 (See Jeffrey E. v. Central Baptist Church (1988)
197 Cal. App. 3d 718, 722, fn. 6.) Kaiser does not dispute this
ruling.
6
16 Cal. 3d 181; and Pierson v. Helmerich & Payne Industrial
Drilling Co. (2016) 4 Cal. App. 5th 608 [(Pierson)].)”
The trial court found: “There is no evidence that the
‘required vehicle use” exception to the ‘going and coming’ rule
applies in this case. The exception applies when an employer
requires an employee/volunteer to furnish a vehicle for
transportation on the job. (See Ducey, supra, [25 Cal.3d at p.]
723; Tryer v. Ojai Valley School (1992) 9 Cal. App. 4th 1476, 1482.)
The evidence shows that Kaiser Foundation Hospitals did not
require Mr. Steger to drive a vehicle to the therapy site. (See,
Stern Declaration (Opposition), Exh. 1, p. 28, l. 9 through p. 29,
l. 2.) The fact that Mr. Steger chose to use his vehicle to
transport his therapy dog is insufficient to establish he was
required to use his personal vehicle. Based on the evidence, Mr.
Steger was not prohibited from using another means of
transportation (i.e., walking, taxi, Uber, Lyft, family member,
friend). (See, Stern Declaration, Exh. 1, p. 28, ll. 9-15.)
Transporting the therapy dog does not establish that the required
vehicle exception applies. (Ducey, [at p.] 714; Jorge v. Culinary
Institute of America (2016) 3 Cal. App. 5th 382, 406 [(Jorge)].) The
facts that Mr. Steger was required to provide proof of insurance
to Kaiser Foundation Hospitals, since he provided them with his
driver’s license, and that Mr. Steger mistakenly believed he could
have received reimbursement for mileage do not establish that
the required vehicle exception applies. ”
The court also stated: “The fact that an employee travels to
different working locations that do not require him/her to travel
between different sites during the work period does not trigger
the required vehicle exception. (See Ducey, supra, [25 Cal.3d at
p.] 723; Jorge, supra, [3 Cal.App.5th at pp.] 397, 401–403, 405;
7
Anderson, supra, [14 Cal.App.4th at pp.] 257, 262; Tryer, supra,
[9 Cal.App.4th at pp.] 1479–80.)”
Appellants contend the trial court erred because they did
present evidence creating a triable issue of fact about whether
Steger’s travel fell within the required vehicle exception. They
claim they presented evidence that Steger’s work required the
transport of his dog to “various locations set by” Kaiser and
Steger “necessarily accomplished this work by using his own,
specially-equipped vehicle” and that Kaiser “came to rely on
Defendant Steger’s use of his own vehicle.” Appellants also claim
that Steger testified at his deposition “that was the nature of the
arrangement and that Kaiser offered to reimburse Defendant
Steger for his mileage.”
We review a trial court’s grant of summary judgment de
novo to determine whether there are triable issues of material
fact. (Wiener v. Southcoast Childcare Centers, Inc. (2004)
32 Cal. 4th 1138, 1142.) Like the trial court, we strictly construe
the moving papers and liberally construe the opposing papers.
We view the moving papers in the light most favorable to
appellants. All doubts about the propriety of granting the motion
are resolved in favor of denial. (Wilson v. 21st Century Ins. Co.
(2007) 42 Cal. 4th 713, 717.)
“The rules of law that define the role of inferences in
creating a triable issue of material fact are contained in
subdivision (c) of Code of Civil Procedure section 437c. When
reviewing a motion, the court shall consider the evidence set forth
in the papers and ‘all inferences reasonably deducible from the
evidence.’ [Citation.] Generally, when conflicting inferences can
be reasonably drawn from the evidence, a triable issue of fact is
deemed to exist.” (Pierson, supra, 4 Cal.App.5th at p. 627.)
8
A. There Is No Direct Or Circumstantial Evidence That
Kaiser Required Steger To Use His Own Vehicle To
Volunteer.
“The required-vehicle exception to the going and coming
rule and its variants have been given many labels.” (Piersonˆ
supra, 4 Cal.App.5th at p. 624.) Regardless of the label, the
exception “covers situations where there is an express or implied
employer requirement. ‘If an employer requires an employee to
furnish a vehicle as an express or implied condition of
employment, the employee will be in the scope of his employment
while commuting to and from the place of his employment.’ ” (Id.
at p. 625.) Whether there is an express or implied requirement
“ ‘can be a question of fact for the jury,’ ” but “the question of fact
sometimes can be decided by a court as a matter of law.” (Id. at
p. 626.)
Kaiser representative Miranda testified Kaiser did not
require Steger to use his vehicle. In their reply brief, appellants
contend Steger “testified that he was required to drive his car to
his work. There is no such direct testimony. Appellants are
referring to the following deposition testimony: Question: “So
[Kaiser’s] arrangement was that you would drive your own
vehicle?” Steger: “Yes.”
It is not reasonable to understand Steger’s testimony in the
manner appellants suggest. Common definitions of arrangement
are “a preliminary measure” or “preparations” (Merriam-Webster
Dict. (2020) [as of June 19, 2020], archived at
.) and “a plan for how something
will happen” or “an agreement between two people or groups
about how something happens or will happen.” (Cambridge. Dict.
9
(2020) [as of June 19, 2020], archived at
.) Even reading “arrangement”
broadly to mean “agreement,” an agreement between Kaiser and
Steger that Steger would drive his own car would not establish or
suggest that driving a personal vehicle was a requirement of the
job. It does not contradict Kaiser’s testimony that using other
methods of transportation, such as Uber or Lyft, was permissible,
and thus other “arrangements” or agreements were permissible.
Appellants argue, in effect, that even if Steger’s testimony
alone is not sufficient to create a triable issue of material fact,
that testimony, when considered with certain other evidence, is
sufficient to support a reasonable inference that Kaiser required
Steger to use his personal vehicle. We disagree.
Appellants point to Steger’s testimony that Kaiser offered
to reimburse him for mileage. Payment for travel expenses is not
evidence of an implied requirement that an employee use his own
vehicle, or have it available for use, as a condition of employment.
(Jorge, supra, 3 Cal.App.5th at p. 405; Caldwell v. A.R.B., Inc.
(1986) 176 Cal. App. 3d 1028, 1042; see Anderson, supra,
14 Cal.App.4th at pp. 262–263.) Further, Steger’s testimony at
most shows Kaiser offered him mileage reimbursement at some
point in the past and he declined. There is nothing in his
testimony to show that he had any knowledge of Kaiser’s policies
in July 2015, whereas Kaiser representative Miranda testified
Kaiser did not offer mileage reimbursement to volunteers in July
2015. The facts in the record do not support the inferences
appellants wanted the trial court to draw.
10
Appellants contend a relevant fact is that Kaiser confirmed
every year that Steger possessed liability insurance for his
personal vehicle. Steger believed Kaiser checked such insurance
for all volunteers as a matter of administrative convenience, but
was only concerned about coverage for volunteers who actually
transported patients. Kaiser’s representative testified Kaiser
checked insurance coverage for all volunteers who provided a
driver’s license or were using their own vehicles. The testimony
in the record about Kaiser’s policy on insurance coverage does not
support a reasonable inference that Kaiser required Steger to use
his personal vehicle to provide pet therapy.
In addition, appellants see probative value in Kaiser’s
admission that it was Steger’s responsibility to provide the
therapy dog and transport the dog to the therapy session. They
characterize the dog as necessary work material. Merely
transporting work material does not establish the required
vehicle exception. (Jorge, supra, 3 Cal.App.5th at p. 406; Ducey,
supra, 25 Cal.3d at p. 714.) No doubt when work material is an
animal, certain forms of transportation, such as public buses,
may not be available. There is no evidence in the record,
however, that transporting an animal could only be done by one
form of transportation, specifically the employee’s own vehicle.
Kaiser did not object to Steger using Uber or Lyft, for example.
Thus, Steger’s need to transport work material does not support a
reasonable inference that Kaiser required Steger to use his own
personal vehicle to provide pet therapy.
Appellants also look to the fact that Steger provided pet
therapy at “various” addresses. As we discuss in more detail
below, “the need to show up for work at different sites [does not
render] the employee’s commute extraordinary—or for the benefit
11
of the employer.” (Jorge, supra, 3 Cal.App.5th at p. 405 [“the fact
the employee reported to work at different, and constantly
changing, remote locations did not make his regular commute to
and from work part of his job”].)
The evidence viewed as a whole is no more compelling than
when considered item by item. It shows Kaiser permitted pet
therapy volunteers to select the means of transportation for
themselves and their animals, assigned the therapists to provide
therapy at a variety of locations, checked the liability insurance
of all Kaiser volunteers who either provided a driver’s license or
used their own vehicles, had at one time offered to reimburse
Steger for his mileage, and had an “arrangement” with Steger
that he would use his own vehicle. These facts do not support a
reasonable inference that Kaiser expressly or impliedly required
Steger to use his own vehicle as a condition of his volunteer work.
B. Steger’s Use of His Personal Vehicle Did Not Provide An
Incidental Benefit To Kaiser.
Appellants suggest there is a variation of the vehicle use
exception which focuses on whether the employer derives an
incidental benefit from the employee’s use of the vehicle.2 We
question whether this is an independent basis for the exception
(see Pierson, supra, 4 Cal.App.5th at p. 625 [phrase “incidental
benefit exception” is used as the equivalent of the required-
vehicle exception]), rather than merely a factor to be considered
2 Kaiser argues appellants did not raise the incidental
benefit argument in the trial court. Appellants correctly point
out they referred to the concept of incidental benefit in their
written opposition to summary judgment. This sufficiently
preserves the issue for appeal.
12
in deciding whether an implied vehicle use requirement exists.
In all four cases cited by appellants which discuss “incidental
benefit,” the courts found an express or implied requirement that
the employee provide a vehicle as a condition of employment.
In Lobo v. Tamco (2010) 182 Cal. App. 4th 297 (Lobo), the
court acknowledged a “ ‘well-known exception to the going-and-
coming rule arises where the use of the car gives some incidental
benefit to the employer.’ ” (Id. at. p. 301.) The court explained:
“The exception can apply if the use of a personally owned vehicle
is either an express or implied condition of employment (Hinojosa
v. Workmen’s Comp. Appeals Bd. (1972) 8 Cal. 3d 150, 152
[104 Cal. Rptr. 456, 501 P.2d 1176] [(Hinojosa)].)” (Lobo, at
p. 301.) That was the situation before the court in Lobo. The
employee’s supervisor “testified that [the employee’s] physical
presence was essential when customers had quality complaints
because he was the sole employee with the expertise to determine
whether products were defective. [The supervisor] testified that
[the employee] is required to use his personal car to discharge
that duty.” (Id. at p. 302, italics added.)3
Use of a personal vehicle was also required as a condition of
employment in Huntsinger v. Glass Containers Corp. (1972)
22 Cal. App. 3d 803. In that case, the employee “had duties both
in the office and in the field; he was required to use his vehicle for
the field work [although] there was no requirement that he report
3 As the court in Lobo indicates, the Hinojosa Court found:
“The condition implicit in the employment itself dictated the use
of car transport . . . . To get from one noncontiguous field to
another within the work day required the use of automobile
transport.” (Hinojosa, supra, 8 Cal.3d at p. 161.) The employer
did not provide transportation. (Ibid.)
13
to the office before engaging in his field duties.” (Id. at p. 809,
italics added.) The Huntsinger court explained the exception to
the coming and going rule applies “when a business enterprise
requires an employee to drive to and from its office in order to
have his vehicle available for company business during the day.”
(Id. at p. 810, italics added.) Similarly, in State Farm Mut. Auto.
Ins. Co. v. Haight (1988) 205 Cal. App. 3d 223, it was “an express
condition of his employment that [the employee] use the vehicle
in attending to his duties.” (Id. at p. 242.) The employee “had
duties both in the office and in the field. He was required to use
his vehicle to travel to work sites. He delivered materials in his
vehicle to the work site. He was required to travel throughout
the county and sometimes outside the county.” (Ibid.)
As we have just discussed, the evidence presented by
appellants does not support a reasonable inference that Steger
was required to drive his own vehicle to therapy sessions. Thus,
appellants have not shown a triable issue of material fact as to
whether the implied benefit exception as applied in Lobo,
Hinojosa, Huntsinger and State Farm pertains to this case.
We note the court in Lobo stated in dicta that an incidental
benefit exception could also apply “if the employee has agreed,
expressly or implicitly, to make the vehicle available as an
accommodation to the employer and the employer has ‘reasonably
come to rely upon its use and [to] expect the employee to make
the vehicle available on a regular basis while still not requiring it
as a condition of employment.’ ” (Lobo, supra, 182 Cal.App.4th at
p. 301.)
Here, there is no evidence Kaiser encouraged or relied on
Steger’s use of his own car in connection with his volunteer work.
Kaiser’s representative testified volunteers were free to choose
14
their own method of transportation. There is no evidence Kaiser
derived a different or additional benefit from Steger’s use of his
car to commute to the therapy sessions than it would have
received had he used any other form of transportation. We find
no triable issue of material fact as to whether this variation of
the implied benefit exception applies.
In Lobo, Hinojosa, Huntsinger and State Farm, the courts
describe the incidental benefit to the employer as the employee’s
use of the vehicle during working hours to carry out the
employer’s business. This is very different from the employee’s
use of a vehicle to commute from the employee’s home to his or
her work site. In the present case, Steger was not required to
drive his vehicle to Kaiser to have it available during the work
day. There is no evidence he went from Kaiser to a therapy
session, from a therapy session to Kaiser, or from therapy session
to therapy session. At most the record suggests he went to Kaiser
for an occasional meeting of volunteers and volunteered at Kaiser
for, at most, a few hours a week.
Steger was required to travel to different sites to provide
therapy sessions and the locations changed because the therapy
was not long-term. “[T]he need to show up for work at different
sites [does not render] the employee’s commute extraordinary—or
for the benefit of the employer. In Anderson, a lineman for
Pacific Gas and Electric Company (PG&E) worked out of various
locations. He would report to work at a company point of
assembly, traveling there in his own vehicle and then traveling
on to various job sites in a company vehicle. . . . Affirming
summary judgment for PG&E based on the going and coming
rule, the Court of Appeal concluded that the fact the employee
reported to work at different, and constantly changing, remote
15
locations did not make his regular commute to and from work
part of his job.” (Jorge, supra, 3 Cal.App.5th at p. 405.)
C. Steger Did Not Use A Special Mode of Transportation.
Appellants suggest a “special mode of transportation”
exception to the coming and going rule applies here because
Steger specially equipped his vehicle to transport his dog. (See
Wilson v. Workers’ Comp. Appeals Bd. (1976) 16 Cal. 3d 181, 185
[Transporting the materials “may have been essential to
applicant’s employment, but unless such materials require a
special . . . mode of transportation . . . their mere transport does
not warrant exception from the going and coming rule.”].)
Assuming for the sake of argument that using a specially
equipped vehicle is alone sufficient to create an exception to the
coming and going rule, there is no evidence Steger had such a
vehicle.
Appellants claim Steger used “a particular harness and
clips” and the vehicle was “specially-equipped with a harness
system.” Steger’s testimony is the only evidence of how his dog
was transported and he does not describe modification to or
installation of special equipment to transport his dog. Steger
described the clip as “for like a cargo net or something like that”
which indicates the clip was an existing part of the vehicle, not a
modification Steger made to it. As for the harness, Steger
testified simply, “She has the harness.” This in no way suggests
the harness was permanently installed in or attached to the car
or in any way modified the car. Steger stated he had “a little
leash that’s maybe 18 inches long, and I hook her to that.” This
further demonstrates there were no modifications to Steger’s
vehicle: Steger used a lead to hook his dog’s harness to a clip in
the vehicle.
16
Further, appellants have not provided evidence that a
specially outfitted vehicle was necessary to transport Steger’s
therapy dog or that Kaiser required Steger to use a specially
outfitted vehicle.
D. Personal Travel
If the going and coming rule does not apply to Steger’s
drive, Kaiser contends Steger’s stop at the credit union was not in
the course and scope of his volunteering and so Kaiser was not
vicariously liable for the subsequent collision. Because we find
the coming and going rule applies to Steger’s drive, we do not
consider this claim.
DISPOSITION
The judgment is affirmed. Respondent Kaiser Foundation
Hospitals is awarded costs on appeal.
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
17
Filed 7/16/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
TERESA SAVAIKIE et al., B291120
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC615972)
v.
ORDER CERTIFYING
KAISER FOUNDATION OPINION FOR PUBLICATION
HOSPITALS,
[NO CHANGE IN JUDGMENT]
Defendant and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on June 23, 2020, was
not certified for publication in the Official Reports. For good cause, it now
appears that the opinion should be published in the Official Reports and it is
so ordered.
There is no change in the judgment.
________________________________________________________________________
BIGELOW, P. J. GRIMES, J. STRATTON, J.