(concurring specially) : I concur in the law stated in the syllabus of this case, although I think it is inconsistent with previous decisions of this court. I also concur in the conclusion that the judgment of .the district court should be affirmed.
I do not agree, however, with ali that is said in the opinion. The effort made to harmonize the law of this case with that heretofore expressed in some of the cases decided by this court fails, in my judgment, to accomplish its purpose. The cases are irreconcilable. Under the law of these former decisions the pleadings in this case present a departure and the judgment ' should be reversed. To this extent I concur in the dissent of Mr. Justice Greene.