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direct to the materialmen after Abadie aban- [curred by plaintiff to complete the heating and doned the contract covered specified articles ventilating plant covered in the contract bewhich went into the building. He likewise con- tween plaintiff and the said E. H. Abadie Comfirmed Mr. Bonsack's statement that both he pany and the amendments thereto. and Bonsack checked over Abadie's statements and determined from an examination of the work itself how much was due, and that the amounts allowed were based on estimates of 90 per cent. of the work in place and that the $62,500 paid Abadie represented 90 per cent. of the actual work and materials in place.

"He further testified to the amount it cost to complete the contract, some $5,600, he said; that he participated in buying the materials and employing the labor to complete the contract; and that this amount was the fair and reasonable cost of the work, though it was probably considerably more than it would have cost the contractor if he had finished it, without allowing his work to lax; that the contractor had allowed his work 'to lax.'

"Mr. Bonsack, on further examination, testified that the work was done during the panic of 1907, money was hard to get, and the contractor was not overpaid at any time; that at the time the contractor quit the work was virtually complete, minor details only to be finished up; and that the $62,500 paid to Abadie represented 90 per cent. or less of the work and materials in place.

"The deposition of Edward A. Richards was offered, wherein he testified that he was a mechanical engineer and was employed by the plaintiff to superintend the erection of the building in question; that Mr. Black, acting for Mr. Bonsack, the architect, assisted him in overseeing the Abadie contract; that after Abadie abandoned the contract the work was completed under the direction of himself and Mr. Black according to the original plans and specifications; that he and Black employed the labor at union wages, and bought the material at the lowest price obtainable, taking competitive bids therefor; that he and Black both kept records of the moneys expended, which records were exactly alike; and that he had recently examined Black's book, and he identified the item constituting the architect's certificate of the cost of completion as the amounts actually expended in the work, stating in each instance what the article was which was so purchased. His own record had been destroyed.

"(b) If you further find from the evidence that the E. H. Abadie Company purchased materials or incurred indebtedness for labor, for which materials and labor the said Abadie Company did not pay, and if you further find from the evidence that said materials were used in and became a part of the said heating and ventilating system contracted to be erected by said Abadie Company, and that said labor was employed on said work, then you must find from the evidence the amount of the claims thus incurred by the said E. H. Abadie Company and not paid by it, whether said claims were reduced to judgment in the form of mechanics' lien or not.

"(c) If you find from the evidence that there were claims unpaid by said Abadię Company, and if you further find from the evidence that some of said claims were reduced to judgment in the form of mechanics' lien, then you will add to the principal sum of such judgments so found from the evidence the court costs incurred in each case and allow the plaintiff interest on said judgment and costs from the date of entry of the judgment in each case at the rate of 6 per cent. per annum up to this date. You will also allow the plaintiff the reasonable amount of any attorney's fees paid by it to its counsel in connection with said mechanics' liens.

"(d) If you find from the evidence that the contractor, the E. H. Abadie Company, abandoned its work before the completion thereof, and if you further find from the evidence that the work was completed by the plaintiff, then you must find from the evidence the total cost of the heating and ventilating plant contracted for to plaintiff, which cost you will determine by adding to the amount of money you find from the evidence that the plaintiff paid the E. H. Abadie Company before it abandoned the work the reasonable cost to plaintiff to complete the work, as found by you, pursuant to paragraph (a) of this instruction. If the total cost thus ascertained to plaintiff was less than the contract price, with the extras authorized thereunder added, then you will credit the defendant with the difference between the actual cost to plaintiff and said contract price and credit the amount thus found in favor of the defendant and deduct same from any amounts you may find pursuant to this instruction in favor of the plaintiff.

"The payment by plaintiff of mechanics' lien judgments, due to the failure of the contractor to pay for labor and material, was shown; same with interest and costs totaling $9,002.06. "(e) If you find from the evidence that the "Mr. Joseph E. Martin, secretary of the plain-contractor abandoned the work before the comtiff company, testified to the payment of the mechanics' lien judgments and of an attorney's fee for $460 for the defense thereof.

"Both parties offered instructions to the jury on the measure of damages. The instruction offered by plaintiff and given by the court is as follows:

""The court instructs the jury that if you find in favor of plaintiff that you will assess its damages in the manner following:

"(a) If you find from the evidence that the E. H. Abadie Company abandoned its contract before completing the work it undertook to perform, and if you further find from the evidence that thereafter the work was completed by plaintiff, then you must find and determine from the evidence the reasonable cost necessarily in

pletion of his contract, and if you further find from the evidence that plaintiff made payments to the said contractor after the work progressed and before it abandoned its contract, then you must determine from the evidence whether the amount so paid by the plaintiff to the contractor was in excess of 90 per cent. of the value of the work and materials in place in the structure at the time of its abandonment by the contractor, and if you find from the evidence that the plaintiff did pay to the contractor more than 90 per cent. of the value of work and materials in place as above stated, then you will determine from the evidence the amount of money paid by the plaintiff to said contractor in excess of said 90 per cent.. and the amount thus found must also be credited to the defendant

"The court further instructs you that in no event can you find in favor of the plaintiff in the principal sum of more than $11,045.47, the amount sued for in this case, and interest on the mechanics' liens from the date of the pay

ments thereof to this date.'

and deducted from any amount that you find | plaintiff paid the contractor, prior to the time due the plaintiff, pursuant to the previous para- it abandoned the work, more than 90 per graphs of this instruction. cent. of the work and materials then in place in said plant, and was therefore a violation of the building contract made between them, which it is contended released the defendant, the surety, from all injury it received by reason of said overpayments. But counsel are mistaken in that contention, for there is no evidence upon which to base it. The uncontradicted evidence is to the effect that the payments made by plaintiff to the contractor, prior to its abandonment of the work, did not exceed 90 per cent. of the work and materials then in place. In the absence of such evidence, the action of the court in refusing the instruction was clearly correct.

"The defendant requested the following instruction, which was refused by the court:

""The court instructs the jury that the liability of the defendant herein, if you find there is any liability, is the difference between the total amount of money expended by plaintiff on the contract referred to in the evidence and $68,807.25 being the gross contract price, which amount, however, is subject to a credit of any payment, if any, made by the owner to the contractor in excess of 90 per cent. of the value of the work and materials in place at the time of the abandonment of the contract by the Abadie Company with reference to the entire contract price, which means that if 90 per cent. of the contract had been performed at the time the Abadie Company abandoned the work, then the said amount, being the difference between the gross contract price and the total amount of money expended by the plaintiff on the contract, is subject to a credit represented by any amount, if any, the owner paid to the contractor, or on his account, prior to his abandonment of the work in excess of 90 per cent. of the contract price, and that said amount less said credit is the maximum amount of defendant's liability.'"

[2] Attending the second insistence: But, independent of what has just been said, we are clearly of the opinion that the court correctly declared the measure of damages in the instruction given by it on behalf of the plaintiff, namely, that the plaintiff was entitled to recover any amount paid by it for the completed plant, in excess of the contract price, subject to a credit to the defendant for any amount paid the contractor in excess of 90 per cent. of the value of the work and material in place in the plant at the time of its abandonment by the contractor.

This identical question came before this court in the case of Howard County v. Baker, 119 Mo. 397, and on page 406, 24 S. W. 200,

Reynolds & Harlan and Lydia Lee, all of 202, the court, in speaking through Gantt, P. St. Louis, for appellant.

Jeffries & Corum, of St. Louis, for respond

ent.

WOODSON, J. (after stating the facts as above). I. Counsel for the plaintiff insist that, since the instruction given by the court at its request correctly declared the law as to the measure of damages, it was entitled to recover in this case, and since the uncontradicted evidence showed that it was entitled to a recovery of $11,064.47 and interest, and since the verdict returned by the jury was for only $7,687.50, the jury arbitrarily disregarded the instruction given by the court, or through prejudice or by mistake found for plaintiff in a sum which was only about one-half of what was actually due it.

This insistence assumes the correctness of the instruction given by the court in behalf of the plaintiff as to the measure of damages which is denied by counsel for defendants, and the counter contention is made that the instruction asked by them correctly declared the rule as to the measure of damages, and that the court erred in refusing to give it. [1] We will dispose of these cross-insistences in the inverse order in which they are stated. Regarding the latter: The court properly refused the defendant's instruction for one reason, if for none other, namely: This instruction is predicated upon the contention that the evidence tended to show the

J., said:

"It is next insisted that the sureties are released from their undertaking in the bond, because they claim that the county court overpaid the contractor during the progress of the work; that the provisions relative to the payments were for the benefit of the sureties, and the county court voluntarily abandoned security it should have retained. The stipulation of the contract on this subject was that the court 'should pay eighty-five per cent. on the amount done on the building, on the first of each month, of material furnished on the grounds and work as the work progressed, and this per cent. should be ascertained, upon the estimate of the superintendent, certified by the architects and indorsed by the court.'

"The appellants seek now to interpolate a new provision or element in the estimate, namely, that the court should not, at any time, have paid more than 85 per cent. of the amount that the whole cost of the building. But this would have been an unauthorized change in the contract.

the work done and material furnished bore to

"It might have been that the contractor could not build the house for the amount of his contract, but it would not justify the court in violating its agreement with him to pay him 85 per cent. of the materials furnished and work done each month.

"The contract is plain and unambiguous, and there is no room to place upon it the construction contended for. Had the county court placed such a construction on it, pending the building, it might have offered the contractor a

very convenient excuse to abandon his contract, the directions of the court, * as he subsequently did, without it.

"The payments were made on the estimates of the superintendent. In the absence of fraud, of which there is no evidence whatever, his certificate was conclusive on the parties. Williams v. Railroad, 112 Mo. 463 [20 S. W. 631, 34 Am. St. Rep. 403]. The referee found as a fact the payments were made each month as the contract required, and his findings have the effect of a special verdict. Wiggins Ferry Co. v. Railroad, 73 Mo. 389 [39 Am. Rep. 519]; Vogt v. Butler, 105 Mo. 479 [16 S. W. 512]."

*

*

the court

shall, on motion of the proper party, grant a new trial," etc.

Evidently the jury, under the uncontradict ed evidence in this case, either made a mis take in figuring up the amount of the verdict, or else it disregarded the instruction of the court which told them that, if they found for plaintiff, then they would find for it in a sum equaling the aggregate of the various amounts before mentioned, that is, of course, if they found that those amounts were correct; and

otherwise under the undisputed evidence in this case, especially in the light of the fact that upon the same evidence they found the merits of the case for plaintiff and about onehalf of the sum that evidence showed was actually due plaintiff. In discussing a similar question in the case of Fairgrieve v. Moberly,

The same rule is announced in the follow-it is difficult to see how they could have found ing cases: Milavetz v. Oberg, 138 Minn. 215, 164 N. W. 910; Crudup v. Portland Cement Co. (Okl.) 156 Pac. 899; National Security Co. v. Haley (Okl.) 159 Pac. 292; Gorton v. Freeman, 51 Okl. 516, 152 Pac. 127; British Amer. Tob. Co. v. Surety Co., 177 App. Div. 582, 164 N. Y. Supp. 406; Hastings Land Imp. Co. v. Empire State Security Co., 15629 Mo. App. 141, loc. cit. 152, where the unApp. Div. 258, 141 N. Y. Supp. 417; Welsh v. Warren (Tex. Civ. App.) 159 S. W. 106; Southwestern Surety Co. v. Lumber Co., 46 Okl. 701, 148 Pac. 1038; School District v. De Lano, 96 Kan. 499, 152 Pac. 668.

There are some expressions, contained in the opinion of the court delivered upon the former appeal, which appear to be inconsistent with the views here expressed; but after a careful re-examination of the authorities we are of the opinion that they should not be adhered to, and they are overruled. We therefore rule both of these insistences against the defendant.

[3] II. Returning to the question regarding the amount of the verdict: The uncontradicted evidence shows that the contract price of the structure was $68,962.98; that the plaintiff paid the contractor $62,502.50 upon the certificates of the architect, prior to his abandonment of the work; that thereafter he paid an account of materials furnished on the order of the contractor and incorporated in the building to various persons the sum of $2,432.50; that he paid on account of mechanics' lien judgments against said plant on account of materials furnished to the contractor, aggregating $9,468.21; and that he paid $6,607.24 in addition to complete said plant after the contractor abandoned the work, aggregating something over $80,000 with attorney fees, etc., to be added, making the total cost to plaintiff over and above the contract price of $68,962.98, of $11,064.47-but the verdict of the jury was for only $7,687.50, or about one-half of the amount with interest the evidence showed was due the plaintiff.

In the light of section 2022, R. S. 1909, and the adjudications of this and other states upon this question, I am unable to see how we can permit this verdict to stand. Said section of the statute, in so far as is here material, reads as follows:

"In every case where there has been

a mistake by the jury, or a finding contrary to

contradicted evidence showed the plaintiff was seriously and permanently injured, and assessed her damages at one dollar, Judge Philips, P. J., said:

"While it is to be conceded to defendant that

its evidence tended to show that the injuries were perhaps less serious and permanent than shown by the plaintiff's evidence, yet it were trifling with obvious facts, almost incontrovertible, to say that her injury was not painful and serious. A dollar compensation for such an injury strikes the mind as monstrous. Such verdicts by juries are justly to be regarded as public misfortunes, as they tend, in large measure, to strike down popular respect for the jury system. No broader highway can be opened to expose it to the full view of public contempt than such awards as they made in this case. The remedy for the increasing evil rests mainly with the trial courts in awarding a venire de novo, after publicly rebuking the jury for such an abortion of justice."

In the case of Morris v. Missouri Pacific Ry. Co., 136 Mo. App. 393 on page 397, 117 S. W. 687, 688, Judge Johnson, in discussing this same question, clearly and forcefully stated the law in the following language:

"The question of law for our determination is whether the trial court possessed authority to exercise such discretion. The rule thus stated by the Supreme Court in Hoepper v. Hotel Co., 142 Mo. loc. cit. 387 [44 S. W. 257], has repeatedly received recognition: "The presumption rulings of the circuit court. It has committed is always in favor of the correctness of the to it much discretion in the matter of granting new trials, and this court should not interfere unless its discretion has clearly been abused. It is therefore uniformly held that an appellate court will not interfere with the discretion of the circuit court in granting a new trial on the ground that the verdict is against the weight of the evidence. The proceedings are all in the presence of the court, and it can better judge of the fairness of the trial than the appellate court which has before it the cold record only.'

"An exception to this rule has been found in

actions ex delicto where the damages cannot be measured by any accurate rule and are not susceptible of direct proof. Speaking of such cases, we said in Edwards v. Railway, 82 Mo. App. loc. cit. 485: "They admit of no other test than the intelligence of the jury, governed by a sense of justice. To the jury, therefore, as a favorite and almost sacred tribunal, is committed, by unanimous consent, the exclusive task of examining the facts and circumstances, and valuing the injury, and awarding the compensation in damages. The law that confers upon them this power and exacts of them the performance of this solemn trust favors the presumption that they are actuated by pure motives, and it is not until the result of the deliberation appears in form calculated to shock the understanding and impress no dubious conviction of their prejudice and passion that courts have found themselves compelled to interpose.'

the law, and an award of a sum not warranted by the rule, is such evidence of passion, prejudice, or more frequently of mistake, or misapprehension, that the verdict of the jury ought not and will not be permitted to stand. It would be a discredit to the administration of justice if this were not so.

"A verdict for a grossly inadequate amount stands upon no higher ground in legal principle, nor in the rules of law or justice, than a verdict for an excessive or extravagant amount. It is doubtless true that instances of the former occur less frequently, because it is less frequently possible to make it clearly appear that the jury have grossly erred. But when the case does plainly show such a result, justice as plainly forbids that the plaintiff should be denied what is his due, as that the defendant should pay what he ought not to be charged.

""The power of the court to award a new trial when dissatisfied with the verdict, on this ground, is I think not open to question, and whether because the verdict is too large or too small, the principle is precisely the same. in practice it has been customary heretofore to grant a new trial in either case.'"

And

After discussing the effect of the evidence in that case, Judge Johnson proceeded and held that the court, in granting a new trial on that ground, acted within the scope of its In duty.

"The exception applies to actions for personal wrongs such as personal injuries, slander, malicious prosecution, and the like. But where the reason for the exception does not obtain the general rule applies. It is immaterial whether the action be ex contractu or ex delicto. If the damages may be measured by a definite rule and under that rule may be ascertained with a fair degree of certainty, it not only is the right but the duty of the trial judge to supervise the verdict and to set it aside when satisfied that it is against the clear weight of the evidence. Bayliss on New Trials and Appeals, p. 505, the author says: 'Where the law itself prescribes the rule of damages to which alone the plaintiff is entitled if he recover, a disregard of the law, and an award of a sum not warranted by the rule, is such evidence of passion or prejudice, or, more frequently, of mistake or misapprehension as will render it the duty of the court to set

aside the verdict.'

"In Watson v. Harmon, 85 Mo. loc. cit. 447, the Supreme Court, in recognizing the exception to the general rule, observed:

In the case of Fischer v. City of St. Louis, 189 Mo. 567, 88 S. W. 82, 107 Am. St. Rep. 380, the plaintiff stumbled over an obstruction on the sidewalk, fell, broke and dislocated her ankle, from which she was confined to her bed for several months and suffered pains and distress naturally incident to such injuries. At the trial the jury found the facts for the plaintiff and assessed her damages at one dollar. This court in that case, in discussing this question through Judge Lamm, on page 578 of 189 Mo., on page 85 of 88 S. W. (107 Am. St. Rep. 380), said:

"But in cases of breach of contract and injury to property which have fixed standards of value, if there appears glaring deficiency in the verdict, justice demands a reversion.' Very "But it is stoutly contended by respondent clear and to the point is what was said by the that on all the facts of the case the jury should Court of Appeals in the following excerpts from have found for respondent and that a one dolthe opinion in McDonald v. Walter, 40 N. Y. lar verdict in substance and effect amounts to 551: Nevertheless, it would be strange, if true, that, merely taking the peculiar form it did out that no instance should occur in which, through of regard for appellant on the question of costs. a misapplication of the law to the facts which "Raking in the dead ashes of antiquated casthey find proved, or through prejudice or pas-es,' to borrow the animated language of Chansion, or mistake, injustice is done, which it cellor Kent in discussing the earlier cases perbecame the duty of the court to correct. While the general rule should be preserved, it would not be safe to assert the uncontrollable supremacy of the jury. Both in England and in this country, therefore, the court has always exercised the power of reviewing the evidence on a case made for the purpose, and of granting a new trial, where upon a cool and deliberate examination the ends of justice seemed to require it.

"And this is always the plain duty of the court where the verdict is palpably against the law applied to the facts found.

"It is upon these principles that verdicts for an excessive and extravagant amount of damages are set aside; and where the law itself prescribes the rule of damages to which alone the plaintiff is entitled, if he recover, a disregard of

taining to the rule in Shelley's Case, it may be found that a notion once prevailed that, in an action founded in damages sounding in tort, the court might set aside a verdict excessively great as indicating passion, prejudice, or misconduct on the part of the jury, but would not meddle with a verdict immoderately small. This doctrine was illogical and, being based on no substantial reason, is exploded. The true rule seems to be that a court with great hesitation will invade the province of a jury and interfere with a verdict for damages sounding in tort for personal injuries, crim. con., seduction, slander, libel, and other cases, especially where malice is an element and smart money or exemplary damages are allowed. But judges have never renounced their right, as an element in the administration of the law, to set aside a verdict, either

J., discussing the matter now in hand, said: 'In other words, where a jury has returned a verdict for nominal damages in a case where the plaintiff is not entitled to any damages, the verdict will not be set aside in the appellate court at the instance of the plaintiff.'

"When it is determined, as it must be in the case at bar, that there was persuasive evidence of the negligence of respondent city, and when it is determined, as it must be, that there was little or no evidence showing a want of care on the part of appellant, and that all the evidence in that behalf fell from her own lips and when fairly considered does not show want of due care, and when the serious character of the injuries of appellant stands confessed, as here, it follows, we think, that the verdict of the jury in this case ought not to be attributed to a benevolent disposition on the jury's part toward appellant in the matter of costs, and as a finding for respondent city based on the substantial evidence, but must be attributed to whim and arbi

excessive in bigness or ridiculous in littleness, where the result reached shocks the understand ing and cannot be fairly justified on any hypothesis except misconduct or prejudice or willful disregard of instructions. In arriving at a conclusion, however, the presumption is in favor of the good conduct of the jury, and therefore, if on the whole record the case preponderates in favor of the defendant, or is evenly balanced in the scales, or where, as in a case of assault, there was strong provocation, and where, as in a case of slander, etc., there were facts tending to prove mitigation of damages, the courts have refused to interfere with nominal verdicts although on first blush they may appear illogical. It would serve no useful purpose to collate the cases or undertake to distinguish them, for they abound in nice refinements, and, after all, each case depends upon its own merits and cannot be settled offhand on a mere general rule. The va rious propositions asserted above may be found discussed and applied in Weinberg v. Railroad, 139 Mo. 286 [40 S. W. 882]; Haven v. Rail-trariness and a disposition to play fast and road, 155 Mo. 216 [55 S. W. 1035]; Dowd v. Westinghouse Air Brake Co., 132 Mo. 579 [34 S. W. 493]; Overholt v. Vieths, 93 Mo. 422 [6 S. W. 74. 3 Am. St. Rep. 557]; Leahy v. Davis, 121 Mo. 227 [25 S. W. 941]; Watson v. Harmon, 85 Mo. 443; Gregory v. Chambers, 78 Mo. 294; Pritchard v. Hewitt, 91 Mo. 547 [4 S. W. 437, 60 Am. Rep. 265]; Boggess v. Railroad, 118 Mo. 328 [23 S. W. 159, 24 S. W. 210]; Goetz v. Ambs, 22 Mo. 170; Fairgrieve v. City of Moberly, 29 Mo. App. 141; Chouquette v. Railroad, 152 Mo. 257 [53 S. W. 897].

loose with the law and the substantial rights of appellant, and should be explained alone as the product of prejudice or some kindred motive.

"Holding these views, we conclude the learned circuit judge erred in not sustaining appellant's motion for a new trial, and therefore the cause is reversed and remanded, with directions to the lower court to set aside the order overruling appellant's motion for a new trial, to sustain that motion and grant appellant a new trial, and for further proceedings in the cause."

The same rule is announced in the following cases: Watson v. Harmon, 85 Mo. 443; Fury v. Merrman, 45 Mo. 500; Prichard v. Hewitt, 91 Mo. 551, 4 S. W. 437, 60 Am. Rep. 265; Edwards v. Railway, 82 Mo. App. 585.

"In Pritchard v. Hewitt, 91 Mo. loc. cit. 550 et seq. [4 S. W. 437, 60 Am. Rep. 265], after quoting approvingly the reasons for the general rule of noninterference from Graham and Waterman on New Trials, to the effect that: "The reason for holding parties so tenaciously to the Viewing the facts of this case as disclosed damages found by the jury in personal torts is, that in cases of this class there is no scale by by the uncontradicted evidence, in the light which the damages are to be graduated with of the authorities considered, we are clearly certainty. They admit of no other test than the of the opinion that the jury was actuated intelligence of a jury governed by a sense of jus- either by prejudice or passion, or was guilty tice. * * To the jury, therefore, as a fa- of a mistake in computing the plaintiffs' damvorite and almost sacred tribunal, is committed, ages, or that they disregarded the instrucby unanimous consent, the exclusive task of ex- tions of the court, in assessing the amount of amining the facts and circumstances, and valuing the injury and awarding compensation in dam-damages the plaintiff had sustained; and it ages. The law that confers on them this power is against the plain letter and spirit of the and exacts of them the performance of this law and should not be permitted to stand. solemn trust, favors the presumption that they are actuated by pure motives, * and it is not until the result of the deliberation of the jury appears in a form calculated to shock the understanding and impress no dubious convicFor the reasons stated, the judgment is tion of their prejudice and passion that courts have found themselves compelled to interpose-reversed, and the cause remanded, with diBrace, J., speaking to the point, says: 'Of rections to the circuit court to retry the case course, it goes without saying that actions ex in harmony with the views herein expressed. delicto, wherein the damages may be measured with some degree of certainty, are not within the rule, and that those cases where the damages, under the circumstances, are such as to shock the "understanding," and induce the conviction that the verdict was the result of either passion, prejudice, or partiality, are exceptions to this rule.'

"In Haven v. Railroad, supra, the court, nisi, set the verdict aside for inadequacy, and its action was sustained by this court. Marshall,

III. There are some other minor questions presented, but they in no manner can change the result arrived at, so we will not consider them.

PER CURIAM. The foregoing opinion of WOODSON, J., in Division No. 1, is adopted as the opinion of the court in banc.

WALKER, FARIS, and GRAVES, JJ., con

cur.

WILLIAMS, J., concurs in result.
BLAIR, J., dissents.

BOND, C. J., not sitting.

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