Citizens' Bank v. Heyward

December 8, 1925. The opinion of the Court was delivered by When this case was heard the first time by the Supreme Court, the opinion was delivered by Mr. Justice Fraser, who has since died.

The following is the opinion which he wrote, except a quotation from the case of Mayfield v. MortgageCo., 104 S.C. 158; 88 S.E., 370, which is omitted: "The facts, in brief, are: Miss Heyward, the defendant, sent her brother, who was her agent, to the plaintiff Bank to borrow money. The agent negotiated the loan with Mr. Brown, the president of the Bank, who was fully authorized by his Bank to make loans. The contract between Mr. Heyward and Mr. Brown, the president of the Bank, and also a director of the Bank, was that Miss Heyward should pay 8 per cent. to the Bank and 2 per cent. to Brown, personally. This loan went on for years. The 8 per cent. was paid to a clerk of the Bank and the 2 per cent. was paid to the president. These two were to run with the life of the loan. Was it usury? The trial Court held that it was not usury. We think it was usury.

"It does not need the citation of authority to show that a principal is responsible for the tortious acts of his agent, performed within the scope of his authority. The principal is responsible for the unlawful manner in which the agent does an authorized act. It makes no difference by what namea thing may be called, when we are uncovering a violationof the law, but what is its nature. It makes no difference thattwo checks were made instead of one. In the Mayfield Casethe fee was so large as to indicate that it was not intended as a fee — only a cloak for usury. In that case there was abasis for the charge of a fee. Here the plaintiff did not dothe law the reverence to even claim that there was a basisof service for which two per cent. was charged. But thecontract was that the two per cent. was to continue duringthe life of the loan. The contract was that the president and a clerk in the Bank should receive ten per cent. for the loan, during the life of the loan, and is usurious. We have seen that even though the payment was voluntarily made, it is immaterial." (Italics added.)

"If this case is affirmed, the statutes against usury aredead. Any money-lending concern can employ a loan agentwho will charge for himself unlimited usury, and no onecan show that behind closed doors the money-lender himselfnot only got his legal eight per cent., but another eightper cent. too." (Italics added.)

"The judgment is reversed.

"Mr. Justice Watts concurred.

"Mr. Justice Marion concurred in result.

"Mr. Acting Associate Justice W.C. Cothran dissented.

"Mr. Chief Justice Gary and Mr. Justice Cothran did not participate."

C.R.I. Brown, a witness for the plaintiff, testified as follows:

"I was the president of the Bank when these loans were made. The by-laws contain the following provisions as to the duties of the president: ``He shall call the directors together when he deems it necessary. He shall at all times exercise general supervision over the directors of the affairs of the corporation. He shall have general superintendence and direction of all officers and employees of the corporation. He shall see that their duties are properly performed and shall perform all services pertaining to the office of president of the banking corporation.' * * * It was the custom of the Bank that the president made the loans for the Bank. The president was usually the agent of the Bank in making loans. That custom was carried out practically through the existence of the Bank.

"I was present at the directors' meeting when this loan was discussed. My impression is that the directors authorized the increase of the loan to $7,020. The questionof the two per cent. commission was not taken up with thedirectors. It never went into the funds of the Bank. They did not know that it was being paid to me individually." (Italics added.)

"Recross-Examination: "Q. Did the directors authorize the increase of $770 after it had been made or before it was made? A. My recollection is that when the loan was raised to $7,020 it was discussed as to the advisability of lending additional money to Mr. Heyward. That is my impression. I have looked over the minutes to see if there was any record of that, but I can't find in the minutes where there was any record of it, but I am sure that a discussion of that account washad with my board because we had done that on several occasionswhen Mr. Heyward requested an additional sum ofmoney. I fail to find in the minute book as yet, casually looking over it, any record where it was brought up at any of these meetings, except this, that the loan has been passed from time to time by the board after it was recorded." (Italics added.)

"I could assume the authority as president to make theloan anyhow. That was usually the custom of the Bank,in case the president cared to have additional informationas to whether or not to make the loan. (Italics added.)

"It was so vivid in my mind because I wanted to be sure that there wasn't any question as to the value of the collateral without reference to Mr. Heyward paying a commission. At that time a statement was made by me personally that I didn't feel that he should have to pay a commission if the loan was good, and we considered it good, and he stated that he would like me to have it, and he knew me personally, and so ``I would like you to have this money.' he said, ``If I don't pay it to you, I will have to pay it toanother bank on Broad Street.' (Italics added.)

"I can't state positively that Nat. Heyward never sentone check for both the eight per cent. and the two per cent.interest by mail, drawn to the order of the Citizens' Bank,and I am almost willing to say that he did not do it; thatwould not impress me at all with being the right thing forNat. to do to send a check to cover these two amounts. Hecould have done it, but I doubt very seriously if the Bankwould have had anything to do with the check." (Italics added.)

The following letter was put in evidence:

"March 15, 1920.

"Mr. C.R.I. Brown, Charleston, S.C. ___ Dear Sir: Having paid the interest on a bond and mortgage of Marie H. Heyward, for which I am acting in her stead as her agent, from time to time in the Citizens' Bank, it is understood that I have been paying the Citizens' Bank 8 per cent. interest as called for by the bond and mortgage and 2 per cent. to you personally as commission for said loan.

"This is in accordance with my policy and has been done during the life of the bond, it being understood that we now owe the Bank six months' interest in advance at the rate of 8 per cent.

"Yours very truly, "MARIE H. HEYWARD, "Per N. Heyward, Agt."

Nathaniel Heyward, a witness for the defendant, testified as follows:

"These payments of eight per cent. to the Bank and two per cent. to Mr. Brown, the president of the Bank, were made continuously from 1912, when the first loan was made,up to 1920, when this letter was sent by me. I always figured the amount at each payment. The extra two per cent.was paid on the whole principal of the loan as the principal was increased from time to time. The interest was paid on the whole amount and was increased as the principal." (Italics added.)

The following findings of fact by his Honor, the Circuit Judge:

"That Nat. Heyward, the brother and agent of the defendant, Marie H. Heyward, offered to C.R.I. Brown, the president of the Citizens' Bank, a commission of two per cent. of the amount of the loan, which was offered andaccepted by Brown as his personal money, and was not paid to the Bank. Interest at the rate of eight per cent. per annum was paid to the Bank, and the two per cent. commission paid to Brown was handled separately, and was paid to him for his own individual use and benefit, unknown, unauthorized, and not ratified by the Bank, as a personal commission of two per cent. on the loan during its life. There is no testimony tending to show that the Bank ever received any portion of the commission, or that it benefited in any way by Brown's unlawful act. There is, likewise, a total failure of proof that the Bank knew of, authorized, or ratified the unlawful act of its president.

"It does not appear that the commission was made acondition to making or renewing the loans, and it appearsthat the mortgagor voluntarily paid the commission. Thereceipt by Brown personally of the commission was reprehensibleand cannot be too severely condemned, but the voluntary offer to pay the commission shows that the usual ``oppressiveness' incident to usurious loans was absent in the case at bar." (Italics added.)

"While it might have been within the scope of the president's agency to charge and collect a commission for theuse and benefit of the Bank, surely it cannot be contended that, in the absence of the Bank's knowledge, authorization, or ratification, that he was acting within the scope, or even in the apparent scope of his agency, or for his Master's business in exacting such a commission for his own personal use and benefit; certainly not in the absence of some proof that he was thus compensated for his services rendered to the Bank as its employee or agent."

The exceptions are as follows:

"I. His Honor, the Circuit Judge, erred, it is respectfully submitted in decreeing that the plaintiff, Citizens' Bank, should have judgment against the defendant, Marie H. Heyward, in the sum of $7,020, with interest and attorney's fees and for the sale of the mortgaged property. The error being:

"(a) That the loan was usurious because the president of the Bank, who was also a director in the Bank, and was by the custom of the Bank, in charge of making the loans for the Bank, and who made this loan for the Bank, collected in interest for himself, in addition to the eight per cent. paid to the Bank, two per cent. on the principal of the loan which the Circuit Judge found as a fact to have been done during the life of the loan from March 20, 1912, to November 24, 1919, which amounts to $3,502.33, interest paid to the Bank at eight per cent., and $875.59, paid to the president, director, and agent of the Bank in making the loan.

"(b) The Circuit Judge should have found that Marie H. Heyward was entitled to offset against the loan an amount equal to twice the amount of interest paid, amounting to twice $4,377.92, or $8,755.84.

"II. The Circuit Judge should have held the loan usurious on the grounds that the rule of law in South Carolina is that the receiving of excessive and unreasonable commissions by the agent of the lender with the knowledge, actual or constructive, of the principal, renders the transaction usurious, if such commissions and the interest added exceed the lawful rates. And as Brown, the president and director of the Bank, was the agent of the Bank in making this loan, his knowledge with respect to the commissions is imputable to the plaintiff Bank."

The only case from South Carolina upon which his Honor, the Circuit Judge, based his conclusion, was Knobelockv. Bank, 50 S.C. 259; 27 S.E., 962. The facts in the present case are entirely different from those in the case of Knobelock v. Bank, supra, in the vital particular that in the Knobelock Case the law as to imputed notice to the principal was not involved, for the reason that the juryhad found that there was no such notice and the verdictwas final. Therefore, any rulings of the Court upon that question were purely obiter dicta.

In the case of Garvin v. Garvin, 27 S.C. 472;4 S.E., 148, the Court says:

"The Court, however, is not considered as bound by the argument of an opinion, but only by what is decided by it. The remark referred to was made in the course of argument, was unnecessary to the question then under consideration, and was one of those observations which, as some one has well said, ``fall from a Judge on a legal question suggested by a case before him, but not arising in such a manner as to require decision by him. It is, therefore, not binding as a precedent on other Judges, although it may be entitled to more or less respect,' etc. The question now made for the first time is res integra."

The language used in the Knobelock Case would be cited to sustain the appellant's exceptions, but for the fact that the question then before the Court is not involved in this case, as will be seen by reference to the following language:

"The question was not whether Small was acting for himself as Trustee, or for himself as an individual, but whether, in the transaction of drawing out the deposit, he was in any way acting for the Bank. Knowledge of Small's fraudulent intent with reference to the deposit was not imputable to the Bank, unless, in the particular transaction of paying out and receiving the deposited money, Small acted for the Bank. * * *

"The real question was whether in the transaction under consideration Small was acting as agent for the Bank. The Bank is presumed to know what its president knew as its agent, but not what Small knew as its executor. * * *

"Besides this, he had already, at plaintiff's request, charged that ``knowledge brought home to the agent of the corporation possessing authority to act, and acting in the matter to which the notice relates, is the strongest case for charging a corporation with notice of matter known to its agents,' in accordance with the decision in Webb v. Graniteville ManufacturingCo., 11 S.C. 408. * * * [32 Am. Rep., 479.]

"Participation by the principal in the fruits of the agent's fraud is not the test whether the agent's knowledge is imputable to the principal, but it affords evidence on the question whether the agent in the fraudulent transaction was acting within the scope of his agency, previously authorized or subsequently ratified, which is the test. * * *

"In the relation of the principal to a third party, the undisputed rule exists, that notice to the agent is notice to the principal, if the agent comes to the knowledge of facts while he is acting for the principal. * * *

"See, also, Akers v. Rowan, 33 S.C. 473; 12 S.E., 172; 10 L.R.A., 705, where the Court said: ``The Circuit Judge overlooked the qualifications to the admitted general rule, that notice to the agent is notice to the principal. Sloan, though he was at the time the solicitor of the Bank and one of its directors did not acquire knowledge of the fact that suits were commenced against Robbins while acting in either of those capacities.' * * *

"Speaking of the last-mentioned case, this Court, in Raply [Rapley] v. Klugh, 40 S.C. 151; 18 S.E., 686, said: ``The Bank was exonerated from responsibility of the knowledge of its agent (solicitor and director), because such knowledge of its agent was not acquired while engaged in business for the Bank, but was acquired while acting as the solicitor of Robbins himself.' * * *

"In the case of Bickley v. Bank, 39 S.C. 294; 17 S.E., 977; 9 Am. St. Rep., 721, the Court sustained the following charge by the Circuit Judge: ``If the president of the Bank commits a fraud relative to a subject that does concern his duty to the Bank in dealing with strangers and other persons having business with the Bank, the corporation will be liable to such third person or persons for such acts and misdeeds of its president and agent.'"

As this is an equity case, the facts are reviewable for the purpose of determining whether there was usury on the part of the Bank, or not.

After carefully considering the facts, we have reached the conclusion that there was a well-planned scheme by the Bank itself to charge usury. Of course, it would not be natural to expect that this would be shown except from circumstantial evidence. The scheme was that the payment of the two per cent., called commissions, was to continue aslong as the loan was unpaid. President Brown did not negotiate the loan as an individual, for if he had done so, he would not have continued to receive it, during the lifeof the loan. The letter written by Mr. Heyward to the president simply shows that he did not intend to take advantage of the fact that the contract was usurious, and wasa mere blind. The statement of Mr. Heyward to President Brown that, "If I don't pay it to you, I will have to pay it to another bank on Broad Street," shows that he wascompelled to pay usury in order to get the money. The following statement of President Brown shows upon its face that the facts were not correctly stated:

"I can't state positively that Nat. Heyward never sent one check for both the eight per cent. and the two per cent. interest by mail drawn to the order of the Citizens' Bank, and I am almost willing to say that he did not do it; that would not impress me at all with being the right thing for Nat. to do, to send a check to cover these two amounts. He could have done it, but I doubt very seriously if the Bank would have had anything to do with the check" —for that would have exposed the usurious contract.

The principle of imputed notice is thus stated in Reynoldsv. Witte, 13 S.C. 5; 36 Am. Rep., 678:

"There is nothing to distinguish this from the ordinary case where one, for convenience, employs another to act as his agent in a particular business, or to exempt Reynolds and Caldwell Sons from the principles which ordinarily attach to the relation of principal and agent. Of all these principles there is not one more important than that which makes the act of the agent, within the scope of his authority, the act of the principal — ``qui facit per alium, facit per se.' Caldwell Sons were the agents of Reynolds, and they misappropriated, and thereby, for the purpose of this case, destroyed the collaterals of Witte. Is Reynolds liable for that act? If Reynolds himself had done the act there can be no doubt that he would have been liable to Witte. * * *

"What is the proper understanding of the phrase ``within the scope of the agency'? Does ``the scope' include negligence and exclude fraud? It cannot properly be restricted to what the parties intended in the creation of the agency, for that would also exclude negligence, as no agent is appointed for the purpose of being negligent, any more than for the purpose of acting fraudulently. The question cannot be determined by the authority intended to be conferred by the principal. We must distinguish between the authority to commit a fraudulent act and the authority to transact the business in the course of which the fraudulent act was committed. Tested by reference to the intention of the principal, neither negligence nor fraud is within ``the scope of the agency'; but tested by the connection of the act with the property and business of the agency, fraud in taking the very property is as much ``within the scope of the agency' as negligence in allowing others to take it. The proper inquiry is, whether the act was done in the course of the agencyand by virtue of the authority as agent. If it was, then the principal is responsible, whether the act was merely negligent or fraudulent."

In Smith's Mercantile Law it is said:

"The principal has been thought to be responsible, not merely for the negligence, but for the deliberate fraud of his agent committed in the execution of his employment, though without the principal's authority, as, for instance, by selling false jewels for true ones. The reason given for this by Lord C.J. Holt, appears a sensible one. ``Seeing,' says he, ``thatsome one must be loser by the deceit, it is more seasonablethat he who employs and confides in the deceiver, should bethe loser than a stranger. Such, certainly, was the opinionof the Roman lawyers.'" (Italics added.)

The principle is well stated in Story on Agency, § 452:

"It is a general doctrine of law that, although the principal is not ordinarily liable (for he sometimes is) in a criminal suit for the acts or misdeeds of his agent, unless, indeed, he has authorized or co-operated in them, yet he is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, negligences, and other malfeasances, and omissions of duty of his agent,in the course of his employment, although the principal did not authorize or justify or participate in, or indeed know of such misconduct, or even if he forbade the acts or disapproved of them. In all such cases the rule applies respondeatsuperior; and it is found upon public policy andconvenience, for in no other way could there be any safetyto third persons in their dealings, either directly with theprincipal or indirectly with him, through the instrumentalityof agents. In every such case the principal holds outhis agent as competent and fit to be trusted, and thereby,in effect, he warrants his fidelity and good conduct in allmatters within the scope of the agency." (Italics added.)

The language from Smith's Mercantile Law and Story on Agency were quoted with approval by Justice McGowan, who delivered the opinion of the Court in Reynolds v. Witte,13 S.C. 5; 36 Am. Rep. 678.

In the case of Union Bank v. Wando Mining ManufacturingCo., 17 S.C. 361, this Court says:

"Mr. Mowry was president of the Union Bank, and a director of the Wando Mining Manufacturing Company, during all the time of the occurrences which had the effect to deprive the president and secretary of the company of all powers of agency, and was present at the meetings of thecompany at which they took place, and was president of theBank at the times when those notes were discounted. His knowledge was, therefore, official, and the Bank is boundby the legal effect of his knowledge." (Italics added).

Mr. Justice Cothran thus concludes his opinion:

"It has been suggested that it is against public policy for this Court to countenance the exaction by the president of a bank of a commission for his personal service in negotiating a loan by his bank, and that the affirmance of Judge Johnson's decree, widely spread as it will be, would work havoc with borrowers and practically annihilate the usury laws of the State.

"It seems to be assumed that the affirmance of the decree amounts to an approval of such conduct. This assumption is wide of the mark; the Court considers it a most flagrantand reprehensible breach of trust, deserving the severestjudicial condemnation; what the affirmance means is that the Bank is not liable for the penalties of the usurystatute." (Italics added.)

"That the Bank might be liable to a borrower who might bring suit against it for the recovery of the illegal exaction, we entertain no doubt. Such exaction forced by the president of a bank occupying a fiduciary situation, and acting within the actual scope of his agency, would constitute a tort, for which his principal would be liable, just as a railroad company would be liable to a passenger for the return of an illegal fare collected by a conductor.

"But the liability of the Bank for the penalties of the usury statute and its liability to return the illegal exaction are entirely different matters.

"The declaration by the Court of the Bank's liability to return the illegal exaction should demonstrate the fallacy of the suggestion that the Court approved of such conduct by an officer of a bank, and should allay the apprehension that the officers of other banks will be emboldened by the decision to follow the abhorred example of the president in this case.

"The Court would welcome the opportunity of giving the mortgagor in this case credit for the two per cent. commissions collected by the president if the pleadings justified such relief; but the counterclaim is based solely upon the penalties under the usury statute and we see no way to do so.

"We think, however, that the defendant should be allowed to move the Circuit Court for an order permitting her to amend her answer by setting up this liability as a counterclaim, this Court reserving the question whether a claim in tort can be set up as a counterclaim in an action upon contract. If it cannot be, the defendant's remedy by a separate action is open to her.

"As to the matter of public policy: The primary source of the declaration of the public policy of the State is the General Assembly; the Courts assume this prerogative only in the absence of legislative declaration. The General Assembly has spoken and declared that the exaction of a commission by an intermediary shall not constitute usury, and this Court has no power to decide otherwise. The Court, however, has the power, the General Assembly having made no declaration upon the subject, to declare that public policy requires that the Bank shall be liable for the tort committed by the president of a bank in the collection of an illegal exaction from a borrower.

"The difficulty in the minds of those members of the Court who favor a reversal of the decree, it is respectfully suggested, lies in the application of the familiar principle that a principal is liable for the acts of an agent within the scope of his agency, and in failing to distinguish between the liability of the principal for a penalty and its liability in damages for the tortious act. The former cannot be enforced except under the statute prescribing the conditions of such liability; the latter under the principles of the common law.

"The judgment of this Court is that the judgment of the Circuit Court be affirmed with leave to other defendant to move for an amendment of her answer as above indicated."

Mr. Justice Cothran states that the decree of his Honor, Judge Johnson, should be affirmed for the following reasons:

"1. The payment by the borrower, of a commission to the agent of the lender where it, together with the interest charged, exceeds the lawful rate, cannot be construed usury unless the lender was cognizant of the illegal exaction.

"2. The knowledge of an agent of an illegal exaction by himself cannot be imputed to the principal as notice thereof, where the agent's act is contrary to law, against the interest of the principal and for his personal benefit.

"3. Assuming that under the law as it stood prior to the passage of the Act of 1916 (Code of 1922, Volume 3, § 3640), the transaction in question may have been judicially declared usurious, at the time of trial the penalty therefor under Section 3639 had been repealed by Section 3640, and was not recoverable."

Sections 3638, 3639, and 3640, Code of Laws 1922, are as follows:

"Sec. 3638. No greater interest than seven (7) per cent. per annum shall be charged, taken, agreed upon or allowed upon any contract arising in this State for the hiring, lending or use of money or other commodity, either by way of straight interest, discount or otherwise, except upon written contracts wherein, by express agreement, a rate of interest not exceeding eight per cent. may be charged: Provided, That where any insurance company, as a condition for a loan by such company, of money upon mortgage or other security, shall require that the borrower insure either his life or that of another, or his property, with such company and assign to such company, or cause to be assigned to it, any policy of insurance as security for such loan, or agree to pay premiums thereon during the continuance of such loans, whether such premiums be paid annually or in installments, such premiums shall not be considered as interest on such loan within the meaning of this section, nor shall any loan be rendered usurious by reason of any such requirements where the rate of interest charged for the loan does not exceed the rate above fixed, and where the premiums charged for the insurance do not exceed premiums charged to other persons under like circumstances and conditions who do not obtain loans.

"Sec. 3639. Any person or corporation who shall receive, or contract to receive, as interest any greater amount than is provided for in the preceding section shall forfeit all interest, and the costs of the action and such portion of the original debt as shall be due shall be recovered without interest or costs, and where any amount so charged or contracted for has been actually received by such person or corporation, he or she, or they shall also forfeit double the total amount received in respect of interest, to be collected by a separate action or allowed as a counterclaim in any action brought to recover the principal sum.

"Sec. 3640. No lender shall be charged with usury under the preceding sections by reason of money paid or agreed to be paid others by the borrower in order to obtain a loan where the lender neither took nor contracted to take more than lawful interest: Provided, however, That suit may be brought within six months from the date of such transaction against such other persons as may have charged excessive fees or excessive commissions, and recovery may be had thereon for the excess over and above a reasonable fee or reasonable commissions."

We proceed to the consideration of the first of these propositions, which is as follows: The payment by the borrowerof a commission to the agent of the lender, where it, togetherwith the interest charged, exceeds the lawful rate, cannotbe construed usury unless the lender was cognizant of theillegal exaction.

We have already shown by the testimony that the lender was a party to the illegal and usurious contract, and that the said proposition is, therefore, inapplicable.

The second of said propositions is as follows: The knowledgeof an agent of an illegal exaction by himself, cannotbe imputed to the principal as notice thereof, where theagent's act is contrary to law, against the interest of theprincipal, and for his personal benefit.

The authorities which we have cited, as well as those cited by Mr. Justice Cothran, show that this proposition cannot be sustained. It is a mistake to suppose that the Bank was not benefited by the fraudulent act of President Brown, as it could not be carried into effect, except by securing a borrower for the Bank, out of whom it made several thousand dollars. See Brown v. Brown, 38 S.C. 173;17 S.E., 452.

The third proposition is as follows: Assuming that underthe law as it stood prior to the Act of 1916 (Code of 1922,Vol. 3, § 3640) the transaction in question may have beenjudicially declared usurious, at the time of trial the penaltytherefor under Section 3639 had been repealed by Section3640, and was not recoverable.

Section 3640 consists of two parts, the first of which is as follows:

"No lender shall be charged with usury under the preceding sections by reason of money paid or agreed to be paid others by the borrower in order to obtain a loan where the lender neither took nor contracted to take more than lawful interest."

— which means that a lender shall be charged with usury under the preceding sections by reason of money paid or agreed to be paid others by the borrower in order to obtain a loan, where the lender either took or contracted to take more than lawful interest.

Mr. Justice Cothran contends that the part of Section 3640 which we have quoted, repealed the penalty under Section 3639, while, on the other hand, we contend that the repeal only extends to those cases where the lender neither took nor contracted to take more than lawful interest. It is merely an exemption which, in orderto be of any benefit to the lender, must be set up as a defenseand established by the testimony.

The other part of Section 3640 is as follows:

"Provided, however, That suit may be brought within six months from the date of such transaction against such other persons as may have charged excessive fees or excessive commissions, and recovery may be had thereon for the excess over and above a reasonable fee or reasonable commissions."

As no question is before the Court, under this part of the section, it has no application to the present case.

It is the judgment of this Court that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for such further proceedings as may be necessary to carry into effect the views herein announced.

MR. ASSOCIATE JUSTICE WATTS, and MESSRS. DeVORE, HENRY, RICE, TOWNSEND, and BONHAM, Circuit Judges, concur.

MESSRS. FEATHERSTONE, SEASE, and SHIPP, Circuit Judges, concur in result.

MESSRS. ASSOCIATE JUSTICES COTHRAN and MARION, MESSRS. ACTING ASSOCIATE JUSTICE R.O. PURDY and

MESSRS. WILSON, DENNIS, MANN, and MAULDIN, Circuit Judges, dissent.