
186 S.E.2d 897 (1972)
280 N.C. 513
Ann F. KOONTZ, Administratrix of the Estate of Dalton Klutz Koontz, Deceased, et al.
v.
CITY OF WINSTON-SALEM.
No. 76.
Supreme Court of North Carolina.
March 15, 1972.
*901 White, Crumpler & Pfefferkorn by William G. Pfefferkorn, Winston-Salem, for plaintiffs Coltrane and Calhoun.
Wilson & Morrow by Harold R. Wilson, Winston-Salem, for plaintiffs Gay, Batts and Naylor.
Harper & Tisdale by J. Clifton Harper, Winston-Salem, for plaintiff Koontz.
Hamilton C. Horton, Jr., Archibald H. Scales, III, Craige & Brawley, Winston-Salem, for plaintiff Beer.
R. Lewis Alexander, Elkin, for plaintiff Dunevant.
C. Edwin Allman, James Armentrout, Hatfield, Allman & Hall, Winston-Salem, for plaintiff Shore.
W. F. Womble, Allan R. Gitter, Eddie C. Mitchell, Winston-Salem, for defendant; Womble, Carlyle, Sandridge & Rice, Winston-Salem, of counsel.
BRANCH, Justice.
This Court has extensively considered the entry of summary judgment pursuant to Rule 56 of Chapter 1A-1 of the General Statutes in the cases of Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823, and Singleton v. Stewart, N.C., 186 S.E.2d 400. We therefore briefly review the rules of law applicable to entry of summary judgment under that rule.
When there is a motion for summary judgment pursuant to Rule 56, the court may consider evidence consisting of admissions in the pleadings, depositions, answers to interrogatories, affidavits, admissions on file, oral testimony, and documentary materials. The court may consider facts which are subject to judicial notice, such presumptions as would be available upon trial, and any other materials which would be admissible in evidence at trial. The motion shall be allowed and judgment entered when such evidence reveals no genuine issue as to any material fact, and when the moving party is entitled to a judgment as a matter of law.
An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action. The issue is denominated "genuine" if it may be maintained by substantial evidence.
Summary judgment provides a drastic remedy and should be cautiously used so that no one will be deprived of a trial on a genuine, disputed issue of fact. The moving party has the burden of clearly establishing the lack of triable issue, and his papers are carefully scrutinized and those of the opposing party are indulgently regarded. See also Gordon, "The New Summary Judgment Rule in North Carolina," 5 Wake Forest Intramural Law Review 94.
The record shows that plaintiffs allege and defendant admits, or competent evidence, without contradiction, shows: (1) that defendant is a municipal corporation; (2) that at the time of the negligence complained of defendant was engaged in a landfill operation for the purpose of disposing of garbage; (3) that this operation *902 generated methane gas; (4) that for several years, by agreement with Forsyth County, defendant had been disposing of garbage collected outside its territorial limits in return for a payment by the County to defendant of one dollar per ton to dispose of the garbage at the landfill site; (5) that the City had purchased the land adjacent to Silas Creek Parkway, consisting of 84.37 acres, part of which was used for landfill and other municipal purposes, for the sum of $22,019; (6) that the City had sold approximately 26.5 acres for the sum of $255,780; and (7) that a portion of the total land sold by defendant was a 16.1 acre tract sold to Ed Owens during the year 1969 for the sum of $165,000.
Careful examination of the record reveals no genuine issue as to any material fact concerning defendant's landfill operations affecting the question of governmental immunity. Thus, the only question remaining for decision is whether the trial judge correctly ruled, as a matter of law, that defendant was exercising its governmental powers in operating the landfill at the time of the negligence complained of.
This Court has not departed from the rule of governmental immunity adopted in the year 1889 in the case of Moffitt v. Asheville, 103 N.C. 237, 9 S.E. 695. The rule set out in Moffitt and stated with approval by this Court in Steelman v. New Bern, 279 N.C. 589, 184 S.E.2d 239, is as follows:
"The liability of cities and towns for the negligence of their officers or agents, depends upon the nature of the power that the corporation is exercising, when the damage complained of is sustained. A town acts in the dual capacity of an imperium in imperio, exercising governmental duties, and of a private corporation enjoying powers and privileges conferred for its own benefit.
"When such municipal corporations are acting (within the purview of their authority) in their ministerial or corporate character in the management of property for their own benefit, or in the exercise of powers, assumed voluntarily for their own advantage, they are impliedly liable for damage caused by the negligence of officers or agents, subject to their control, although they may be engaged in some work that will enure to the general benefit of the municipality. . . .
"On the other hand, where a city or town in exercising the judicial, discretionary or legislative authority, conferred by its charter, or is discharging a duty, imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers, though acting under color of office, unless some statute (expressly or by necessary implication) subjects the corporation to pecuniary responsibility for such negligence. . . ."
A municipality has only such powers as the legislature confers upon it. Moody v. Transylvania County, 271 N.C. 384, 156 S.E.2d 716; Shaw v. Asheville, 269 N.C. 90, 152 S.E.2d 139.
In 1917 the General Assembly enacted CS 2799, which provides:
The governing body may by ordinance provide for the removal, by wagon or carts, of all garbage, slops, and trash from the city; and when the same is not removed by the private individual in obedience to such ordinance, may require the wagons or carts to visit the houses used as residences, stores, and other places of habitation in the city, and also may require all owners or occupants of such houses who fail to remove such garbage or trash from their premises to have the garbage, slops, and trash ready and in convenient places and receptacles, and may charge for such removal the actual expense thereof.
CS 2799, later codified as G.S. § 160-233, remained effective until 2 January 1972.
*903 North Carolina is among the states recognizing the majority rule that the collection, removal and disposition of garbage by a municipality within its territorial limits constitutes a governmental function, and that there can be no recovery for wrongful death or personal injury against a municipality for negligent acts of omission or commission of its agents or servants while engaged in this governmental function. Stephenson v. Raleigh, 232 N.C. 42, 59 S.E.2d 195; Broome v. Charlotte, 208 N.C. 729, 182 S.E. 325; Parks-Belk Co. v. Concord, 194 N.C. 134, 138 S. E. 599; Scales v. Winston-Salem, 189 N.C. 469, 127 S.E. 543; Dayton v. Asheville, 185 N.C. 12, 115 S.E. 827; James v. Charlotte, 183 N.C. 630, 112 S.E. 423; Snider v. High Point, 168 N.C. 608, 85 S.E. 15; 57 Am.Jur.2d, Municipal, School, and State Tort Liability, Sec. 127; Annotation: "Collection and Disposal of Garbage and Rubbish as Governmental or Private Function as Regards Municipal Immunity from Liability for Tort," 156 A.L.R. 714. However, North Carolina recognizes liability for a taking or damaging of property resulting from the creation or maintenance of a nuisance growing out of the disposal of garbage. Hines v. Rocky Mount, 162 N.C. 409, 78 S.E. 510; Little v. Lenoir, 151 N.C. 415, 66 S.E. 337.
We therefore hold that a landfill operation by a municipality for the purpose of disposing of garbage collected within its territorial limits is a governmental function. Governmental immunity would ordinarily preclude recovery from the municipality for wrongful death or personal injuries caused by the negligent acts or omissions of the municipality's agents or servants. However, appellants contend that the City's operations at the landfill off Silas Creek Parkway were proprietary rather than governmental because (1) defendant contracted with Forsyth County to dispose of the county garbage at the landfill operation in return for the payment of one dollar per ton, and (2) defendant held the landfill property for sale for profit and sold portions thereof for profit.
Defendant contends that it did not depart from the exercise of its governmental powers by contracting with Forsyth County to dispose of county garbage for a fee. Defendant argues that it used the landfill primarily to dispose of garbage for its inhabitants, a governmental function, and that the City did not realize profit from that operation.
In support of its argument, defendant relies upon James v. Charlotte, supra; McCombs v. City of Asheboro, 6 N.C.App. 234, 170 S.E.2d 169; Osborn v. City of Akron, 171 Ohio St. 361, 171 N.E.2d 492; and McQuillin, 18 Municipal Corporations, § 53.46 (3d ed. 1963).
In James v. Charlotte, supra, the Court held that the City of Charlotte was engaged in a governmental function when it removed garbage for its inhabitants for a fee which covered only its actual collection and disposal expenses. We note that in James it is stated that the City acted pursuant to CS 2799.
In Osborn v. City of Akron, supra, the city operated a landfill for the disposal of garbage and allowed individuals and other municipalities to use the landfill for a fee. The plaintiff sued for damages for alleged nuisance created by the city's landfill operation. The Supreme Court of Ohio rejected plaintiff's contention that the operation was proprietary, and stated:
"However, the primary use of this land fill is for the disposition of the garbage and refuse of the inhabitants of the defendant, and the incidental use of such fill by other municipalities and private individuals for a fee does not change the governmental nature of this operation to one of a proprietary nature."
In McCombs v. City of Asheboro, supra, the Court of Appeals, in a dicta statement, said:
"As has been stated frequently by courts of other jurisdictions, actual profit *904 is not the test, and the city will not lose its government immunity solely because it is engaged in an activity which makes a profit. Beard v. City and County of San Francisco, 79 Cal.App.2d 753, 180 P.2d 744 (1947); Watkins v. City of Toccoa, 55 Ga.App. 8, 189 S.E. 270 (1936); Hahn v. City of Ortonville, 238 Minn. 428, 57 N.W.2d 254 (1953); Huffman v. Columbus, Ohio App., 51 N.E.2d 410 (1943); Griffin v. Salt Lake City, 111 Utah 94, 176 P.2d 156 (1947); Marshall v. Brattleboro, 121 Vt. 417, 160 A.2d 762 (1960). "The underlying test is whether the act is for the common good of all without the element of special corporate benefit, or, pecuniary profit.' McQuillin, Municipal Corporations, 3d ed., § 53.29, p. 192. . . ."
McQuillin, 18 Municipal Corporations § 53.46 (3d ed. 1963), at p. 247, in part, states:
Although there is authority which points to a contrary conclusion, the character of the acts of collecting and disposing of garbage, generally conceded to be governmental functions, is not, it is held by some courts, changed by the fact that a charge is made for the services, or because the municipality derives incidental revenue therefrom.
Conversely, plaintiffs contend that defendant's landfill operation became proprietary when defendant entered into an agreement with Forsyth County to dispose of county garbage for a fee, and when defendant prepared and sold the landfill property for profit.
We examine representative authorities supporting this contention.
In Oliver v. Worcester, 102 Mass. 489, the plaintiff was injured by a fall into an excavated area which was dug incident to improvement and maintenance of a city-owned building. Prior to the repairs, the city had leased the basement for use as a city market. After repairs, the city used the building for city offices, board rooms, and meetings of the city governing body. Also, the city rented space to the county for use as a courtroom. The basement was used for police and jail purposes. In considering defendant's plea of governmental immunity, the Massachusetts Supreme Court held that, due to the receipt of rental income, the city was acting in a proprietary function in the operation and maintenance of the building, and that the doctrine of governmental immunity afforded the city no protection. The Court stated:
". . . [T]he plaintiff, while walking, using due care, upon a footpath which had been used by the public for more than twenty years, and had been laid out and graded from time to time and prepared and cared for by the town and city of Worcester, and was within the public common which had been used by the inhabitants of the town for a much longer period, fell into a deep excavation, made by direction of a joint committee of the city council, under the authority and at the expense of the city, in the course of repairing and improving a building standing within the common, used by the city principally for municipal purposes, but a substantial portion of which, both before and after the time of the accident, the city leased, and received rent for, either from private persons or from the county, and which was therefore held and used by the city, not for municipal purposes exclusively, but in considerable part as a source of revenue;. . ."
The Court apparently did not consider whether the city actually profited from leasing the building, nor did it discuss or define its term "in considerable part" as used to describe the rental of the two rooms in the building.
In Duggan v. Peabody, 187 Mass. 349, 73 N.E. 206, the town owned and operated a quarry and stone crushing apparatus. The primary purpose of this operation was to provide stone for use in construction and maintenance of public streets. However, *905 during the five-year period prior to the action the town received an average annual income of approximately $441 from sale of crushed stone from the quarry to private users. The Massachusetts Supreme Court held that these facts required application of the principle that "when property is used or business is conducted by a town, principally for public purposes under the authority of law, but incidentally and in part for profit, the town is liable for negligence in the management of it." Collins v. Greenfield, 172 Mass. 78, 51 N.E. 454; Neff v. Wellesley, 148 Mass. 487-493, 20 N.E. 111, 2 L.R.A. 500; Worden v. New Bedford, 131 Mass. 23, 41 Am.Rep. 185.
In Haley v. Boston, 191 Mass. 291, 77 N.E. 888, the plaintiff was injured by a wagon hauling ashes picked up by the city from residences for the purpose of disposing of refuse. The city had two ordinances providing for the collection of ashes and garbage. City wagons and personnel picked up household ashes properly displayed by residents. The city performed this service for all residents without charge. City wagons and personnel picked up and disposed of ashes from steam engines for a fee of ten cents a barrelthe cost of collecting and removing the ashes. The Court made a distinction in the performance of the two services, and held that in the performance of the service to all of the householders or residents, the city was not liable for the negligent acts of its agents. Plaintiff's suit was barred because the wagon which struck the plaintiff was engaged solely in removing household ashes at no cost to the householder. However, in a dicta discussion, the Court indicated that there would be liability for negligence in the collection and removal of steam engine ashes because the service, even for a fee that equaled only the expense of collection, was "a matter of contract merely, though doubtless with a view to public convenience."
In Brown v. City of Sioux City, 242 Iowa 1196, 49 N.W.2d 853, the city, incident to the operation of its municipal airport, leased property to various tenants. Plaintiff, one of the tenants, maintained an apiary on leased property near the airport runways. The city sprayed the runways with chlordane to kill harmful insects. As a result of this spraying plaintiff's bees died and his honey was contaminated. Plaintiff sought to hold defendant liable for negligently killing the bees and destroying the honey. Defendant interposed a plea of governmental immunity. The jury returned a verdict in favor of plaintiff, but the trial judge entered a judgment non obstante veredicto. On appeal, the Supreme Court of Iowa reversed the judgment n. o. v. on the ground that the city, by receiving income from incidental use of municipal property otherwise properly engaged in a governmental service, became a proprietor and was liable just as a private individual or corporation would be. In so holding, the Court stated: "A municipality in the exercise of its purely governmental functions, is not liable for negligence. But this rule of governmental immunity is to be strictly construed. . . . Where there is doubt as to whether the city is liable, the question will be resolved against the municipality. . . The city cannot accept and exercise the special privilege of leasing its property to tenants without assuming the responsibilities and liabilities flowing from that relationship."
In Guthrie v. City of Philadelphia, 73 F. 688 (E.D.Pa.1896) the plaintiff sued for damages to his boat caused by negligent operation of the city's ice boat. The ice boat was, by ordinance, entitled to receive compensation for breaking ice, but on this occasion was gratuitously clearing ice around a dock in the State of Delaware. There the Court stated:
"The only defense urged is, in substance, that the city was engaged through its agents, in discharging a public municipal duty, and consequently that it is not responsible for the negligence which caused the injury. The answer to this, in my judgment, is twofold, first that the city owed no municipal duty in *906 Delaware, and second that it was engaged in a private service for the benefit of the owners of the dock, for which it was entitled to compensation. It is unimportant that it performed the service gratuitously. . . ."
In Town of Douglas v. York (Wyo.), 445 P.2d 760, the Court held the municipality liable for fire damage resulting from the negligent operation of the town dump. The basis of the holding was that the town was engaged in a proprietary function because it charged citizens a fee for disposing of garbage.
We find the following statement in McQuillin, 18 Municipal Corporations § 53.90 (3d ed. 1963) at p. 367:
The law in regard to liability for torts connected with public property, other than streets and sewers, may be briefly summarized as follows:
1. If an income is derived by a municipality from particular property owned or managed by it, it is liable for negligence in the care and management thereof. This is well settled and there are no conflicting decisions. Moreover, the amount of income is generally held to be immaterial as is, generally, the fact that the income is merely incidental.
In Smith v. Winston-Salem; Thomas v. Winston-Salem, 247 N.C. 349, 100 S.E.2d 835, the city voluntarily contracted with persons outside its corporate limits for disposal by the city of sewage generated in households located outside the territorial limits of the municipality. The city allowed the sewage mains serving plaintiffs to become choked up and sewage to back through the service connections into plaintiffs' homes. On appeal this Court reversed a judgment for the plaintiffs on the then recognized doctrine of variance, in that the pleadings alleged a breach of contract and the proof established negligence. This Court, in discussing the powers of a municipality to serve the general public and the status of a municipality contracting to serve persons outside its territorial limits, stated:
"A municipal corporation, city or town, is an agency created by the State to assist in the civil government of a designated territory and the people embraced within these limits. Lee v. Poston, 233 N.C. 546, 64 S.E.2d 835. Its charter is the legislative description of the power to be exercised and the boundaries within which these powers may be exercised. Neither city charter nor ordinance enacted pursuant thereto have extraterritorial effect unless authorized by legislative grant. Holmes v. Fayetteville, 197 N.C. 740, 150 S.E. 624; State v. Eason, 114 N.C. 787, 19 S.E. 88; Dean Milk Co. v. Aurora, 404 Ill. 331, 88 N.E.2d 827, 14 A.L.R.2d 98; Hyre v. Brown, 102 W.Va. 505, 135 S.E. 656, 49 A.L.R. 1230 and annotations; Donable v. Harrisonburg, 104 Va. 533, 52 S.E. 174, 7 Ann.Cas. 519; 37 Am.Jur. 736.
. . . . . .
"When plaintiffs, with the assent of defendant, connected their sanitary facilities with defendant's main, defendant impliedly contracted to furnish services reasonably suitable to plaintiffs' need and not to injure plaintiffs by a breach of their contractual obligation. Defendant, in furnishing these services, was acting in a proprietary capacity. Asbury v. Albemarle, 162 N.C. 247, 78 S.E. 146." (Emphasis added)
Plaintiffs rely heavily on the case of Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913. In that case the City of Raleigh operated a number of public parks. Plaintiff was injured at Pullen Park when struck by a rock thrown from a lawn mower operated by a municipal employee. The City charged a small fee for admission to the swimming pool, train, and merry-go-round located in the park. It received, during the year plaintiff was injured, approximately $18,000 in net revenue from this park. The cost of the maintenance and upkeep of the Raleigh parks was approximately *907 $158,000 that same year. Plaintiff brought suit for damage for injuries sustained, and defendant moved for nonsuit on the ground of governmental immunity. This motion was overruled. The case was submitted to the jury, and plaintiff recovered. Defendant appealed. This Court granted a new trial for error in the charge, but upon the issue of governmental immunity stated:
"Considering plaintiff's evidence in the light most favorable to him, and disregarding defendant's evidence which tends to establish another and a different state of facts, or which tends to impeach or contradict his evidence, which we are required to do on the motion for judgment of nonsuit (Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676), it is our opinion that the net revenue of $18,531.14 for the fiscal year 1 July 1952 to 30 June 1953 received by the city of Raleigh from the operation of Pullen Park for that period, which was used by the city for the capital maintenance of the park area, building items, paying salaries, buying fuel, etc., (the evidence that the $18,531.14 was spent in the amusement area only is the defendant's evidence) was such as to remove it, for the purposes of the consideration of a motion for judgment of nonsuit, from the category of incidental income, and to import such a corporate benefit or pecuniary profit or pecuniary advantage to the city of Raleigh as to exclude the application of governmental immunity. . . ."
On appeal from retrial, this Court affirmed a judgment for plaintiff. Glenn v. Raleigh, 248 N.C. 378, 103 S.E.2d 482.
The case law defining governmental and proprietary powers as relating to municipal corporations is consistent and clearly stated in this and other jurisdictions. However, application of these flexible propositions of law to given factual situations has resulted in irreconcilable splits of authority and confusion as to what functions are governmental and what functions are proprietary. In this jurisdiction the cases of Glenn v. Raleigh, supra, and James v. Charlotte, supra, preserve this tradition of confusion by adopting apparently divergent views as to the effect of receiving income while performing an otherwise governmental service.
The Glenn cases do not disclose that this Court considered whether there was statutory authority for the city to charge a fee for the use of park facilities. It should be noted that in James the city was serving only those within its territorial limits and was acting pursuant to a statute which authorized it to remove garbage from habitations and other places from "the city. . . and to charge for such removal the actual expense thereof."
Under the provisions of G.S. § 160-234, the City of Winston-Salem had authority "summarily to remove, abate or remedy. . . everything in the city limits, or within a mile of such limits, which is dangerous or prejudicial to the public health; and the expense of such action shall be paid by the person in default and, if not paid, shall be a lien upon the land or premises where the trouble arose, and shall be collected as unpaid taxes."
The City of Winston-Salem did not elect to rely on the provisions of G.S. § 160-234, but chose instead to contract with the county for disposal of its garbage. By so doing, the City avoided the possibility of being forced to exercise its powers to remove, abate or remedy accumulated garbage which might have become dangerous or prejudicial to the public health of its citizens. Under the agreement between the county and the City, licensed private collectors picked up garbage in areas outside the city limits and delivered it to the city's landfill site. By use of the contract, rather than the provisions of G.S. § 160-234, the City could extend its protection against accumulated garbage and refuse for more than one mile from its territorial limits. Also, the City avoided the possibility *908 of having to collect the cost of removal of garbage pursuant to the statute; and, further, avoided the very real possibility of litigation to enforce the lien provided by the statute. Thus, there were advantages under the contract with Forsyth County which inured to the City's special corporate benefit and thereby brought defendant within the often announced rule that a municipality acts in its proprietary capacity when it receives special "corporate benefit or pecuniary profit." McQuillin, 18 Municipal Corporations § 53.29 (3d ed. 1963) at p. 1692. Bolster v. Lawrence, 225 Mass. 387, 114 N.E. 722; Smith v. Birmingham, 270 Ala. 681, 121 So.2d 867; Dallas v. St. Louis (Mo.) 338 S.W.2d 39.
It would seem that the City has again assumed the same posture as in the case of Smith v. Winston-Salem, supra, where this Court stated that the City, by rendering its sewage disposal service to persons located outside its territorial limits on a contractual basis, "was acting in a proprietary capacity."
At this point we stand at a crossroads created by the courts' applications of the various rules of governmental immunity. Here, it is impossible not to be impressed by the striking factual similarities between the Glenn cases and instant cases. In Glenn, as here, the city was exercising a power generally recognized as governmental. In Glenn, as here, the city received income which was not an actual profit. In Glenn the city received 11.7% of the cost of maintenance of its parks. Here, for the period 1 July 1968 to 1 July 1969 (the fiscal period of the City of Winston-Salem immediately before the explosion in the ensuing month of September), the City received 9.39% of its cost for the landfill operations from payments made by Forsyth County for disposal of its garbage.
We again decline to abrogate the firmly embedded rule of governmental immunity. However, we recognize merit in the modern tendency to restrict rather than to extend the application of governmental immunity. This trend is based, inter alia, on the large expansion of municipal activities, the availability of liability insurance, and the plain injustice of denying relief to an individual injured by the wrongdoing of a municipality. A corollary to the tendency of modern authorities to restrict rather than to extend the application of governmental immunity is the rule that in cases of doubtful liability application of the rule should be resolved against the municipality. Gorman v. Adams, 259 Iowa 75, 143 N.W. 2d 648 (1966); Murphy v. City of Carlsbad, 66 N.M. 376, 348 P.2d 492; Brown v. City of Sioux City, 242 Iowa 1196, 49 N. W.2d 853; New Mexico Products Co. v. New Mexico Power Co., 42 N.M. 311, 77 P.2d 634; Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480; Schult v. City of Phoenix, 18 Ariz. 35, 156 P. 75; Erickson v. Fitzgerald, 342 Ill.App. 223, 96 N.E.2d 382.
Applying the rules of law herein stated, we hold that the City of Winston-Salem was exercising powers voluntarily assumed for its own corporate benefit at the time of the negligence herein complained of, and that at the same time the City was receiving revenues over and beyond incidental income, which income "imports such a corporate benefit . . . or pecuniary advantage to the city as to exclude application of governmental immunity."
We hold that the City of Winston-Salem was acting in its proprietary capacity at the time of the negligence herein complained of.
The judgment of the Superior Court is
Reversed.
BOBBITT, C. J., and SHARP, J., concur in result.
