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PETITIONER:

ACHUTRAO HARIBHAU KHODWA

Vs.

RESPONDENT:

STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT: 20/02/1996

BENCH:

KIRPAL B.N. (J)

BENCH:

KIRPAL B.N. (J)

BHARUCHA S.P. (J)

CITATION:

1996 SCC (2) 634 JT 1996 (2) 624

1996 SCALE (2)328

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

Kirpal, J.

The appellants are aggrieved by the judgment of the

Aurangabad Bench of the Bombay High Court which has reversed

a decree for Rs.36,000/- passed by the Civil Judge, Second

Division, Aurangabad, as damages on account of the death of

one Chandrikabai who was the wife of appellant no.1 and the

mother of appellant nos. 2 to 5, after she had undergone a

sterilization operation at the Civil Hospital, Aurangabad.

The case of the appellants before the trial court was

that the deceased Chandrikabai was admitted in the Civil

Hospital, Aurangabad on 10th July, 1963, for delivery of a

child. This maternity hospital is attached to the Medical

College at Aurangabad and respondent no.2 was working in the

department of Obstetrics and Gynecology as a doctor and it

is she who attended on Chandrikabai. Respondent no.3 was the

Medical Officer of the said hospital while respondent no.4

was the Dean of Medical College, Aurangabad. Chandrikabai

delivered a male child on 10th July, 1963. As she had got

herself admitted to this hospital with a view to undergo a

sterilization operation after the delivery, the said

operation was performed by respondent no.2 on 13th July,

1963. Soon thereafter Chandrikabai developed high fever and

also had acute pain which was abnormal after such a simple

operation. Her condition deteriorated further and on 15th

July, 1963 appellant no.1 approached respondent no.3 and one

Dr. Divan, PW-2, who was a well-known surgeon and was

attached to the hospital, but was not directly connected

with the Gynecological department. At the insistence of

appellant no.1 Dr. Divan examined Chandrikabai on 15th July,

1963, and seeing her condition, he is alleged to have

suggested that the sterilization operation which had been

performed should be re-opened. This suggestion was not acted

upon by respondent nos.2 and 3 and the condition of

Chandrikabai became very serious. On 19th July, 1963, Dr.

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Divan, on being called once again, re-opened the wound of

the earlier operation in order to ascertain the true cause

of the seriousness of the ailment and to find out the cause

of the worsening condition of Chandrikabai. According to the

appellants, respondent nos. 2 and 3 assisted Dr. Divan in

this Operation. Dr. Divan, as a result of the second

operation, found that a mop (towel) had been left inside the

body of Chandrikabai when sterilization operation was

performed on her. It was found that there was collection of

pus and the same was drained out by Dr. Divan. Thereafter,

the abdomen was closed and the second operation completed.

Even, thereafter the condition of Chandrikabai did not

improve and ultimately she expired on 24th July 1963.

Alleging that Chandrikabai was working as a teacher in

a government school and her salary augmented the total

income of the family, it was pleaded that the death of

Chandrikabai was caused due to the negligence of respondent

no.2 who had performed the sterilization operation on 13th

July 1963, as well as the irresponsible behavior of

respondent no.3. The appellants also alleged that the

hospital lacked adequate medical aid and proper care and

there was gross dereliction of duty on the part of the

officers of the Government Civil Hospital which directly

resulted in the death of Chandrikabai and, therefore, the

appellants were entitled to recover damages from the

Government of Maharashtra (respondent no.1) as well as

respondent nos.2 to 4. The appellants claimed total damages

of Rs.1,75,00O/-. It may here be noticed that the suit was

commenced with the appellants' filing application for

permission to sue in form pauperis and, on the same being

allowed, the same was converted to Special Civil Suit no.5

of 1965.

Respondents 1 and 4 filed a common written statement

contending that the appellants' suit was false. It was

denied that there was any negligence in the performance of

the sterilization operation on 13th July 1963, at the hands

of respondent no. 2. In fact the case of the respondents was

that after the sterilization operation on 13th July, 1963,

the condition of Chandrikabai had improved. All allegations

of negligence etc. were specifically denied. In addition

thereto, respondents 2 and 3 filed separate written

statements in which they also denied any negligence on their

part. Respondent no.2 denied having left any mop in the

abdomen of Chandrikabai and, in the alternative, pleaded

that even if such a mop was left inside the body, the same

could not have, either directly or remotely, caused the

death. Respondent no.3 also denied the recovery of the mop

from the abdomen and generally supported the case of the

other respondents.

In view of the pleadings of the parties the Civil Judge

framed as many as II issues which are as follows:

1. Do plaintiffs prove that the

defendant no.2 performed the

operation without due care,

attention and caution and in the

most negligent manner?

2. Do plaintiffs prove that a mop

was left in the abdomen of the

deceased Chandrikabai during the

first operation, and if so, do

plaintiffs further prove that it

was so left as a result of

negligence, lack of care and

insufficient diligence in the

operation performed by defendant

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no.2?

3. Do plaintiffs prove that as a

result of the mop remaining inside

the body of Chandrikabai during the

first operation by defendant no.2,

a severe pain was caused to her

deteriorating her health and that

the said mop disturbed the internal

organism of the body and resulted

ultimately in the death of

Chandrikabai on 24th July 1963."

4. Do plaintiff's prove that the

defendants no.2 and 3 did not take

proper care of Chandrikabai in the

post operation stage as per details

stated in para 7 of the plaint.

5 Do plaintiff's prove that the

defendant no.4 also did not take

any proper and necessary steps when

he was instructed about the pain

received by Chandrikabai?

6. Do they prove that there was

mismanagement and careless behavior

in the hospital and negligence by

defendant no.3 in the removal of

the same as stated in last part of

para 7 and that it aggravated the

situation resulting in the death of

Chandrikabai?

7. Do the plaintiffs prove that the

death of Chanbdrikabai was caused

due to failure of duty on the part

of hospital authorities and their

dereliction of duty and hence all

defendants are liable for the same?

8. Do plaintiffs prove the various

details of compensation as stated

in para 9 of the plaint?

9. To what amount are plaintiffs

entitled on account of damages?

10. What order about the recovery

of the court fees?

11. What decree and order?

In support of their case the appellants, apart from

examining appellant no.1 and his mother-in-law, also relied

upon the evidence of Dr. Divan PW-2. In addition thereto the

appellants also examined, on commission, Dr. Ajinkya who was

a Gynecologist and Obstetrician of Bombay. According to Dr.

Divan, after the sterilization operation Chandrikabai had

suffered from post operative peritonitis. This was due to a

mop which had remained inside the peritonial cavity for a

number of days and inflammatory condition had reached a

stage from which recovery was very difficult. After the

removal of the mop Dr. Divan said that he saw the condition

of the intestine which continued to remain paralysed. The

treatment of peritonitis was started from 15th July, 1963

and in his opinion the death of the patient was due to the

complications following the leaving of the mop inside the

abdomen. The other expert witness Dr. Ajinkya also came to

the same conclusion, though his statement was recorded

without his having the benefit of seeing the case papers. On

behalf of the respondents, apart from themselves, two

experts, namely, Dr. Marwa, Professor of Surgery, Medical

College, Aurangabad and Dr.B.V. Purandare, a leading

Obstetrician and Gynecologist of Bombay were examined. The

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trial court did not rely upon the evidence of the experts

examined by the respondents because it came to the

conclusion that the original documents and case papers had

been filed late, some relevant entries had also been

tampered with and it was only the typed papers, which were

copies of the tampered documents, which were supplied to the

respondents' expert witnesses for their opinion. The trial

court, while accepting and relying on the evidence of Dr.

Divan, also observed that the effort of respondents 2 and 3

was to throw the blame on Dr. Divan. According to them, they

had prohibited Dr. Divan from performing the second

operation and the said respondents even denied that a mop

was recovered from the abdomen of Chandrikabai. The trial

court decided all the issues, except issues 5 and 6, in

favour of the appellants and passed a decree for Rs.36,000/-

against respondent nos. 1 to 3, but the suit against

respondent no.4 was dismissed.

The State as well as the respondents 2 and 3 filed

appeals to the High Court. In a marathon judgment of over

300 pages the High Court discussed all the evidence and

firstly came to the conclusion that, in law, the Government

could not be held liable for tortious act committed in a

hospital maintained by it. Thereafter, it held that though

there was no justification for the delay in the authorities'

concerned in supplying the case papers to the appellants, no

prejudice had been caused. The High Court did observe that

there were some erasure marks and rubbing off of the entries

in the original case papers, but held that it was not

possible to infer therefrom that the registers had been

tampered with and that there was no material before the

trial court to hold that the case papers were tampered with

by respondents 2 to 4. The High Court also noticed that the

opinion of the experts was conflicting. Whereas according to

Dr. Divan and Dr. Ajinkya, Chandrikabai had peritonitis even

before the second operation on 19th July, 1963, and she died

because of the same, according to Dr. Purandare,

Chandrikabai was only suffering from acute gastic disorder

till 19th July, 1963, and it was necessary for the doctors

to have waited after removal of the pus on that day and the

second operation was possibly not necessary. Dr. Purandare

deposed that in the absence of a post mortem examination the

exact and correct cause of death could not be determined

though, by looking at the case papers, the cause of death

was peritonitis with septicaemia following the second

operation. The opinion of Dr. Marwa was also to the same

effect. The High Court while accepting the evidence of Dr.

Purandare came to the conclusion that it was difficult to

hold that anything that was done during the sterilization

operation, or thereafter, had definitely caused the death of

Chandrikabai. While, holding that respondent no.2 had

definitely been negligent in leaving a mop inside the

abdomen of Chandrikabai, it held that the appellants had

failed to prove that the negligence of leaving the mop

inside the abdomen had caused the death of Chandrikabai. It,

therefore, concluded that none of the respondents could be

held liable for negligence. It, accordingly, allowed the

appeals and dismissed the suit.

Two questions which arise for consideration in this

appeal are whether the State of Maharashtra can be held

liable for any negligence of its employees and secondly

whether the respondents or any one of them acted negligently

in the discharge of their duties.

Decisions of this Court now leave no scope for arguing

that the State cannot be held to be variously liable if it

is found that the death of Chandrikabi was caused due to

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negligence on the part of its employees.

In State of Rajasthan Vs. Mst. Vidhyawati and Anr. (AIR

1962 SC 933) the question arose with regard to the various

liability of the State of Rajasthan. In that case a vehicle

owned by the State of Rajasthan, which was being driven by

its driver, met with an accident which resulted in the death

of one person. The death was caused due to the negligence of

the driver. The two contentions of the State of Rajasthan

were that under Article 300 of the Constitution, the State

would not be liable, as the corresponding Indian State would

not have been liable if the case had arisen before the

Constitution came into force. Secondly, it was contended

that the jeep which was driven rashly and negligently was

being maintained by the State in exercise of its sovereign

powers and was not a part of any commercial activity of the

State. Rejecting the said contention this Court held that

"the State should be as much liable for tort in respect of a

tortious act committed by its servant within the scope of

his employment and functioning as such, as any other

employer. "This question again came up for consideration in

Kasturi Lal Ralia Ram Jain Vs. The State of Uttar Pradesh.

(AIR 1965 SC 1039) and which has been referred to by the

High Court in the present case while coming to the

conclusion that the State of Maharashtra cannot be held to

be variously liable. In Kasturi Lal's case gold had been

seized and the same had been kept in a malkhana. The

appellant demanded the return of this gold but the same was

not returned. It appeared that the same had been

misappropriated by the person in-charge of the malkhana. The

respondents therein claimed that it was not a case of

negligence by the Police officers and even if negligence was

proved the State could not be held to be liable for the said

loss. While holding that there was negligence on the part of

the police officers, this Court denied relief by observing

that the powers which were exercised by the police officers

could be properly characterized as sovereign powers and,

therefore, the claim could not be sustained. This Court

distinguished the decision in Vidhyawati's case by

observing:

"In dealing with such cases, it

must be borne in mind that when the

State pleads immunity against

claims for damages resulting from

injury caused by negligent acts of

its servants, the area or

employment referable to sovereign

powers must be strictly determined.

Before such a plea is upheld, the

Court must always find that the

impugned act was committed in the

course of an undertaking or

employment which is referable to

the exercise of sovereign power, or

to the exercise of delegated

sovereign power...."

Explaining the distinction between the two types of cases,

it was also observed as follows;

"It is not difficult to realize the

significance and importance of

making such a distinction

particularly at the present time

when, in pursuit of their welfare

ideal, the Government of the States

as well as the Government of India

naturally and legitimately enter

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into many commercial and other

undertakings and activities which

have no relation with the

traditional concept of governmental

activities in which the exercise of

sovereign power is involved. It is

necessary to limit the area of

these affairs of the State in

relation to the exercise of

sovereign powers, so that if acts

are committed by Government

employees in relation to other

activities which may be

conveniently described as

nongovernmental or non-sovereign,

citizens who have a cause of action

for damages should not be precluded

from making their claim against the

State, That is the basis on which

the area of the State immunity

against such claims must be

limited; and this is exactly what

has been done by this Court in its

decision in the case of State of

Rajasthan."

Two recent decisions where the State has been held to be

variously liable on account of the negligent acts of its

employees are those of N. Nagendra Rao and Company Vs. State

of Andhra Pradesh (1994 (6) SCC 205) and State of

Maharashtra & Ors. Vs. Kanchanmala Vijay Singh Shrike &

Ors. ( JT 1995 SC 155). In Nagendra Rao's case some goods

had been conficated pursuant to an order passed under

Section 6 A of the Essential Commodities Act, 1955. The said

order was annulled but due to the negligence of the officers

concerned goods were not found to be of the same quality and

quantity which were there at the time of its confiscation.

The owners of the goods refused to take delivery and filed

a suit claiming value of the goods by way of compensation.

The High Court of Andhra Pradesh held that the State was

not variously liable for negligence of its officers in

charge of their statutory duties. Negativing this, this

Court while allowing the appeal observed at page 235 as

follows:

"In Welfare State, functions of the

State are not only defence of the

country or administration of

justice or maintaining law and

order but extends to regulating and

controlling the activities of

people in almost every sphere,

educational, commercial, social,

economic, political and even

marital. The demarcating line

between sovereign and non

sovereign powers for which no

rational basis survives has largely

disappeared. Therefore, barring

functions such as administration of

justice, maintenance of law and

order and repression of crime etc.

which are among the primary and

inalienable functions of a

constitutional government, the

State cannot claim any immunity.

The determination of various

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liability of the State being

linked with negligence of its

officer, if they can be sued

personally for which there is no

death of authority and the law of

misfeasance in discharge of public

duty having marched ahead, there is

no rational for the proposition

that even if the officer is liable

the State cannot be sued. The

liability of the officer

personally was not doubted even in

Viscount Canterbury. But the Crown

was held immune on doctrine of

sovereign immunity. Since the

doctrine has become outdated and

sovereignty now vests in the

people, the State cannot claim any

immunity and if a suit is

maintainable against the officer

personally, than there is no reason

to hold that it would not be

maintainable against the State."

A similar view has been taken in Kanchanmala Vijaysingh's

case (supra) where, dealing with a claim for compensation

arising as a result of an accident with a jeep belonging to

the State, it was observed as follows:

"Traditionally, before court

directed payment of tort

compensation, the claimant had to

establish the fault of the person

causing injury or damage. But of

late, it shall appear from

different judicial pronouncements

that the fault is being read as

because of someone's negligence or

carelessness. Same is the approach

and attitude of the courts while

judging the various liability of

the employer for negligence of the

employee. Negligence is the

omission to do something which a

reasonable man is expected to do or

a prudent man is expected not to

do. Whether in the facts and

circumstances of a particular case,

the person causing injury to the

other was negligence or not has to

be examined on the materials

produced before the Court. It is

the rule that an employer, though

guilty of no fault himself, is

liable for the damage done by the

fault or negligence of his servant

acting in the course of his

employment. In some case, it can be

found that an employee was doing an

authorised act in an unauthorised

but not a prohibited way. The

employer shall be liable for such

act, because such employee was

acting within the scope of his

employment and in so acting done

something negligent or wrongful. A

master is liable even for acts

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which he has not authorised

provided they are so connected with

acts which he has been so

authorised. On the other hand, if

the act of the servant is not even

remotely connected within the scope

of employment and is an independent

act, the master shall not be

responsible because the servant is

not acting in the course of his

employment but has gone outside."

The High Court has observed that the government cannot

be held liable in tort for tortious acts committed in a

hospital maintained by it because it considered that

maintaining and running a hospital was an exercise of the

State's sovereign power. We do not think that this

conclusion is correct. Running a hospital is a welfare

activity undertaken by the government but it is not an

exclusive function or activity of the government so as to be

classified as one which could be regarded as being in

exercise of its sovereign power. In Kasturi Lal's case

itself, in the passage which has been quoted hereinabove,

this Court noticed that in pursuit of the welfare ideal the

government may enter into many commercial and other

activities which have no relation to the traditional

concept of governmental activity in exercise of sovereign

power. Just as running of passenger buses for the benefit of

general public is not a sovereign function, similarly the

running of a hospital, where the members of the general

public can come for treatment, cannot also be regarded as

being an activity having a sovereign character. This being

so, the State would be variously liable for the damages

which may become payable on account of negligence of its

doctors or other employees.

Before considering whether the respondents in the

present case could be held to be negligent, it will be

useful to see as to what can be regarded as negligence on

the part of a doctor. The test with regard to the negligence

of a doctor was laid down in Bolam Vs. Friern Hospital

Management Committee ( [1957] 1 WLR 582 ). It was to the

effect that a doctor is not guilty of negligence if he acted

in accordance with a practice accepted as proper by a

responsible body of medicalmen skilled in that particular

art. This principle in Bolam's case has been accepted by the

House of Lords in England as applicable to diagnosis and

treatment. (See Sidaway Vs. Board of Governors of Bethlem

Roval Hospital ( [1985] A.C. 871 at 881 ) Dealing with the

question of negligence, the High Court of Australia in

Rogers Vs. Whitaker ( [1993] 109 A.L.R. has held that the

question is not whether the doctor's conduct accords with

the practice of a medical profession or some part of it, but

whether it conforms to the standard of reasonable care

demanded by the law. That is a question for the court to

decide and the duty of deciding it cannot be delegated to

any profession or group in the community. It would,

therefore, appear that the Australian High Court has taken

a somewhat different view than the principle enunciated in

Bolam's case. This Court has had an occasion to go into

this question in the case of Dr.Laxman Balkrishan Joshi Vs.

Dr. Trimbak Bapu Godbole and Anr. (AIR 1969 SC 128 ). In

that case the High Court had held that the death of the son

of the claimant was due to the shock resulting from

reduction of the patient's fracture attempted by the doctor

without taking the elementary caution of giving

anaesthetic. In this context, with reference to the duties

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of the doctors to the patient this court, in appeal,

observed as follows:

"The duties which a doctor owes to

his patient are clear. A person who

holds himself out ready to give

medical advice and treatment

impliedly undertakes that he is

possessed of skill and knowledge

for the purpose. Such a person when

consulted by a patient owes him

certain duties, viz., a duty of

care in deciding whether to

undertake the case, a duty of care

in deciding whether treatment to

give or a duty of care in the

administration of that treatment. A

breach of any of those duties gives

a right of action for negligence to

the patient. The practitioner must

bring to his task a reasonable

degree of skill and knowledge and

must exercise a reasonable degree

of care. Neither the very highest

nor a very low degree of care and

competence judged in the light of

the particular circumstances of

each case is what the law requires.

The above principle was again applied by this court in

the case of A.S. Mittal and Ors. vs. State of U.P. and Ors.

(AIR 1989 SC 1570). In that case irreparable damage had been

done to the eyes of some of the patients who were operated

upon at an eye camp. Though this Court refrained from

deciding, in that particular case, whether the doctors

were negligent, it observed "A mistake by a medical

practitioner which no reasonably competent and a careful

practitioner would have committed is a negligent one." The

Court also took note that the law recognizes the dangers

which are inherent in surgical operations and that mistakes

will occur, on occasions, despite the exercise of reasonable

skill and care. The Court further quoted Street on Torts

(1983) (7th Edn.) wherein it was stated that the doctrine of

res ipso loquitur was attracted: "....Where an unexplained

accident occurs from a thing under the control of the

defendant, and medical or other expert evidence shows that

such accidents would not happen if proper care were used,

there is at least evidence of negligence for a jury." The

latest case to which reference can be made is that of Indian

Medical Association Vs. V.P. Shantha and Ors. (1995) 6 SCC

651). The question which arose in this case was whether the

Consumer Protection Act, 1986, applied to medical

practitioners, hospitals and nursing homes. It was held in

this case that medical practitioners were not immune from a

claim for damages on the ground of negligence. The Court

also approved a passage from Jackson & Powell on

Professional Negligence and held that "the approach of the

Courts is to require that professional men should possess a

certain minimum degree of competence and that they should

exercise reasonable care in the discharge of their duties.

In general, a professional man owes to his client a duty in

tort as well as in contract to exercise reasonable care in

giving advice or performing services."

The skill of medical practitioners differs from doctor

to doctor. The very nature of the profession is such that

there may be more than one course of treatment which may be

advisable for treating a patient. Courts would indeed be

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slow in attributing negligence on the part of a doctor if he

has performed his duties to the best of his ability and with

due care and caution. Medical opinion may differ with regard

to the course of action to be taken by a doctor treating a

patient, but as long as a doctor acts in a manner which is

acceptable to the medical profession, and the Court finds

that he has attended on the patient with due care skill and

diligence and if the patient still does not survive or

suffers a permanent ailment, it would be difficult to hold

the doctor to be guilty of negligence.

In cases where the doctors act carelessly and in a

manner which is not expected of a medical practitioner, then

in such a case an action in torts would be maintainable. As

held in Laxman's case (supra) by this Court a medical

practitioner has various duties towards his patient and he

must act with a reasonable degree of skill and knowledge and

must exercise a reasonable degree of care. This is the least

which a patient expects from a doctor.

In the present case the facts speak for themselves.

Negligence is writ large. The facts as found by both the

courts, in a nutshell, are that Chandrikabai was admitted to

the government hospital where she delivered a child on 10th

July, 1963. She had a sterilization operation on 13th

July, 1963. This operation is not known to be serious in

nature and in fact was performed under local anesthesia.

Complications arose thereafter which resulted in a second

operation being performed on her on 19th July, 1963. She did

not survive for long and died on 24th July, 1963. Both

Dr. Divan and Dr. Purandare have stated that the cause of

death was peritonitis. In a case like this the doctrine of

res ipso loquitur clearly applies. Chandrikabai had had a

minor operation on 13th July, 1963 and due to the negligence

of respondent no.2 a mop (towel) was left inside her

peritonial cavity. It is true that in a number of cases when

foreign bodies are left inside the body of a human

being either deliberately, as in the case of orthopaedic

operations, or accidentally no harm may befall the patient,

but it also happens that complications can arise when the

doctor acts without due care and caution and leaves a

foreign body inside the patient after performing an

operation and it suppurates. The formation of pus leaves no

doubt that the mop left in the abdomen caused it, and it was

the pus formation that caused all the subsequent

difficulties. There is no escape from the conclusion that

the negligence in leaving the mop in Chandrikabai's abdomen

during the first operation led, ultimately, to her death.

But for the fact that a mop was left inside the body, the

second operation on 19th July, 1963 would not have taken

place. It is the leaving of that mop inside the abdomen of

Chandrikabai which led to the development of peritonitis

leading to her death. She was admitted to the hospital, on

10th July, 1963 for a simple case of delivery followed by a

sterilization operation. But even after a normal delivery

she did not come out of the hospital alive. Under these

circumstances, and in the absence of any valid explanation

by the respondents which would satisfy the court that there

was no negligence on their part, we have no hesitation in

holding that Chandrikabai died due to negligence of

respondent nos. 2 and 3.

Even if it be assumed that it is the second operation

performed by Dr. Divan which led to the peritonitis, as has

been deposed to by Dr. Purandare, the fact still remains

that but for the leaving of the mop inside the peritonial

cavity, it would not have been necessary to have the second

operation. Assuming even that the second operation was done

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negligently or that there was lack of adequate care after

the operation which led to peritonitis, the fact remains

that Dr. Divan was an employee of respondent no.1 and the

State must be held to be variously liable for the negligent

acts of its employees working in the said hospital. The

claim of the appellants cannot be defeated merely because it

may not have been conclusively proved as to which of the

doctors employed by the State in the hospital or other staff

acted negligently which caused the death of Chandrikabai.

Once death by negligence in the hospital is established, as

in the case here, the State would be liable to pay the

damages. In our opinion, therefore, the High Court clearly

fell in error in reversing the judgment of the trial court

and in dismissing the appellants' suit.

For the aforesaid reasons, this appeal is allowed, the

judgment of the High Court of Bombay under appeal is set

aside and the judgment and decree of the trial court is

restored. The appellants will also be entitled to costs

throughout.