We are clearly of the opinion that the application for the writ of error in this case should be refused. But since the decision of the Court of Civil Appeals overrules not only a former decision of this court, but also the ruling of another court of civil appeals, we deem it proper for the future guidance of the profession to express our concurrence in their opinion. The judgment of the trial court was reversed and the cause remanded by the Court of Civil Appeals, and the conflict alone gives us jurisdiction of the application.
The opinion of the court of Civil Appeals ably reviews the authorities upon the question presented, and is, as we think, unanswerable. We have made a careful and possibly an exhaustive research and have found no case, save those in our own courts, in which a contrary doctrine is announced. To those cited in the opinion of the Court of Civil Appeals in support of their ruling may be added the following recent cases: Kline v. McCandless, 139 Pa. St., 223; Fields v. Williams, 8 So. Rep. (Ala.), 808.
The application for the writ of error is refused.
Application refused. *Page 104