concurring specially.
I voted originally with Presiding Judge Deen’s dissent, concurred in at that time by Judges Pannell and Marshall, but I had some misgivings because of the case written by Judge Whitman, to wit, Freeman v. Wilcox, 119 Ga. App. 325 (167 SE2d 163), and suggested to Judge *570Deen that it ought to be overruled, as it seemed to conflict with the case now under consideration, and I felt that this court, under the rule of stare decisis, is bound by the older decision of this court on the same point.
Accordingly, Judge Deen indicated his willingness to disapprove Freeman, supra; but it cannot be disapproved with less than five votes, and we simply don’t have enough votes. Therefore, I reluctantly vote with the majority because of our failure to overrule the Freeman case.