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Action for damages for assault and battery by Claude A. Eldred against Raymond J. Burns and others. A verdict in favor of plaintiff was returned against defendants Raymond J. Burns and others, but no verdict was returned against defendant Kingsley Lumber Company. From an adverse judgment, Raymond J. Burns and others appeal.
REVERSED AND REMANDED.
This is an action to recover damages resulting from an assault and battery alleged to have been committed by the appellant Raven Blackwolf, a man 67 years of age, employed by the appellant William J. Burns International Detective Agency as a watchman to guard the waterfront property of the defendant Kingsley Lumber Company. The appellant Burns Detective Agency had entered into a contract with the Kingsley Lumber Company to guard this waterfront property and in furtherance thereof employed Blackwolf.
The respondent alleges in his complaint that on the 27th day of February, 1945, the appellant Blackwolf "wilfully and maliciously and wrongfully" shot him through the right arm causing serious and permanent injuries. The appellant Burns Detective Agency answered, admitting that respondent was shot through the arm, but denied that the shooting was "wilful, malicious or wrongful." As an affirmative defense, it was alleged that the respondent was a trespasser on the property of the Kingsley Lumber Company and that Blackwolf, the watchman, being fearful that respondent and his three companions were going to "beat and injure him," accidentally shot the respondent while defending himself and such property. The appellant Raven Blackwolf, in his answer, admitted having shot the respondent through the arm, but denied that it was done in a "wilful, malicious or wrongful" manner. As a further and separate defense, Blackwolf alleged that about midnight on the 27th day of February, 1945, the respondent, accompanied by three companions, was trespassing on the property guarded by him, and, when he called on them to stop, they advanced toward him in a threatening manner, and, being fearful that respondent and his companions were
"about to beat and injure him," and while acting in defense of himself and said property, fired the shot that hit the respondent. These affirmative defenses were denied in the reply of respondent.
On the issues thus briefly stated, the cause was submitted to a jury and a verdict returned in favor of the respondent and against the appellants Blackwolf and the copartners doing business under the assumed name of William J. Burns International Detective Agency in the sum of $39,349. No verdict was returned against the Kingsley Lumber Company.
There are several errors in the record which necessitate a reversal of the judgment rendered, chief among them being the instruction given by the court and referred to under appellants' fourth assignment of error to the effect that respondent was not a trespasser on the premises of the Kingsley Lumber Company at the time alleged in the complaint.
In order to correctly interpret this record, it is necessary to consider, from the standpoint of appellants as well as respondent, that it has a war time setting. It cannot be accurately understood without considering this background. Shortly after Pearl Harbor, the Army took over the supervising, guarding and patrolling of the Portland waterfront industries and waterfront facilities. Some time during the war and prior to the incident involved herein, jurisdiction was transferred to the United States Coast Guard.
There is much confusion in the description of the properties involved, by virtue of different witnesses having different ideas as to directions. The description used here will be based upon the hypothesis (slightly erroneous, in fact) that the river and the St. Helens road are parallel and run substantially north and south. Because of the indefiniteness of the dividing
line between properties operated by West Oregon Lumber Company and West Oregon Terminal Company, we shall refer to all of this property as West Oregon property. This property is located a short distance north of Linnton, between the St. Helens road and the Willamette River. Upon this property there is maintained a dock for the purpose of mooring, loading and unloading, barges, ships and other water carriers. The entrance to this property was by a main gate a short distance east of the St. Helens road.
Immediately to the south of the West Oregon property was the Kingsley property where the Kingsley Company operated a saw mill, planing mill and dry kiln, and an office. The entrance to this property crosses over a railroad track and proceeds easterly onto the property. The office is immediately to the left of this entrance. There is, between the two properties, a monorail, or crane structure, with a passageway about half way across the properties. At the time involved, there were maintained at this passageway, both on the Kingsley property and on the West Oregon property, signs reading: "Warning. Do not trespass. Enter these premises at main gate only. Order of U.S. Coast Guard." The Kingsley property did not have a dock although the property bordered upon the river and at times scows were loaded therefrom. At the entrance of the Kingsley property was a sign reading: "No admittance. Stop at office."
On February 27, 1945, the night of the shooting, the Kingsley property was being guarded until 12:00 o'clock midnight by one Anton Anderberg. Raven Blackwolf was to relieve Anderberg at midnight and arrived at the office on the Kingsley property a short time before 12:00 o'clock for that purpose. On the
same night, the West Oregon property had a Burns representative at the gate for the purpose of identifying and admitting those entitled to enter. Two Coast Guardsmen were patrolling the dock having come on duty at 6:00 o'clock and were to serve until midnight. There was, at the time, moored at the dock the S.S. St. Cloud Victory. There was maintained, at the gangway to the vessel, a Pinkerton guard who identified and permitted those who were entitled to do so to go aboard.
The Coast Guard regulations, Code of Federal Regulations for the United States of America (1944 Supp.), Title 33, Navigation and Navigable Water, Chapter 1, Part 7, Regulations for the Protection of Waterfront Facilities, promulgated by the Navy Department, commencing at page 3174, set forth the rules and regulations governing the Coast Guard with reference to its connection with waterfront facilities. These regulations provide: "§ 7.1. Purpose. The regulations contained in this part are promulgated for the protection of vessels, harbors, ports and waterfront facilities. * * *" The enforcement of these regulations is under the direction and control of the Captain of the Port. These regulations require all waterfront facilities to maintain guards and to instruct those guards, provide the qualifications of the guards, and provide that these guards must be satisfactory to the Captain of the Port. These regulations likewise provide who may enter and under what circumstances a person may enter waterfront facilities. These regulations, however, shed no light upon the duties or functions of members of the Coast Guard themselves when patrolling docks or other waterfront facilities.
Respondent was a young man 23 years of age, weighed approximately 230 pounds, and was six feet
two and a half inches in height. He was a member of the United States Merchant Marine.
On February 19th he signed on the liberty ship, the St. Cloud Victory, as bo'sun, and, on the night in question, was serving on board as a part of what he termed "a security watch." During the evening, he, being the "boss" as he termed it, secured a substitute for himself, and he and a "fellow seaman" by the name of Gill went to Linnton. There they met Piel, another member of the crew, who had been drinking, and they joined him and had three or four beers.
The three of them then started for the vessel. It was shortly before midnight. Instead of going to the main entrance of the West Oregon property, they attempted to go through the Kingsley property. As they attempted to enter, they were stopped by the guard then on duty, Anton Anderberg. Some argument ensued, and both Anderberg and Blackwolf demanded that they leave the Kingsley property. Blackwolf followed them west to the railroad track where further argument ensued regarding their right to go north on the railroad track. During this argument, Blackwolf contends that Piel struck at him, and it is admitted that he, Blackwolf, struck Piel with his revolver. Respondent and his associates left and shortly thereafter returned to their vessel, the St. Cloud Victory. At 12:00 o'clock Blackwolf relieved Anderberg as guard on the Kingsley property.
A few minutes before midnight, Forrest Yeoman and Eugene Boynton, who were members of what was called the Auxiliary or Temporary Coast Guard, arrived at the West Oregon dock in a jeep for the purpose of relieving two other Coast Guardsmen who had been patrolling that dock since 6:00 o'clock of that
evening. These Auxiliary Coast Guardsmen were citizens of Portland pursuing regular vocations, who had volunteered to assist the Coast Guard in supervising the waterfront facilities in Portland, and who had taken a short course with reference to the work of the Coast Guard, and were now serving one night a week. As Yeoman and Boynton arrived to relieve the other Coast Guardsmen, they were informed of the difficulty occurring a short time before on the Kingsley property between respondent and his associates and the Kingsley guards. They went on board the vessel, contacted respondent and requested respondent and Gill to accompany them back to the place of the difficulty, and started out to investigate the earlier incident. As they approached the office on the Kingsley property, Blackwolf, being then on duty, asked them who they were and told them to get out. They claim that they called back to Blackwolf that they were the Coast Guard and wanted to talk to him, and proceeded to approach the office. Blackwolf again challenged them. They continued to come. Blackwolf fired two shots, one of them striking respondent in the right arm just below the shoulder inflicting the injury for which he seeks redress herein.
The most important assignment of error has to do with the instruction given by the court to the effect that respondent was not a trespasser on the Kingsley property at the time of the shooting. This instruction is covered by appellants' assignment of error No. 4, and is as follows:
"The question as to whether or not plaintiff was a trespasser on the Kingsley Lumber Company is withdrawn from your consideration and forms no issue to be considered or determined by you, because from the evidence here and as a matter of law the
court instructs you that the plaintiff was not a trespasser upon the premises of the Kingsley Lumber Company at the time alleged in the complaint."
The transcript contains over four hundred pages of testimony, most of which is devoted to the question of whether or not respondent was a trespasser at the time of the shooting. The briefs contain over four hundred pages of printed matter, most of which pertains to this same question. We shall, therefore, give the question our first attention.
Was respondent a trespasser? Why was he at the place of the shooting at the time of the shooting? What justification could he have for being there? It is claimed that he was asked to go there by Yeoman and Boynton. What right did they have to be there? Let us consider the record with reference to these questions.
We have examined the Coast Guard regulations referred to above, together with several volumes of additional regulations. These regulations cover the authority of the Coast Guard from a general standpoint.
Under certain circumstances, the Captain of the Port could and did send Coast Guardsmen onto the Kingsley property, in the day time, for the purpose of investigating fire conditions. But Yeoman and Boynton were not sent there for that purpose. They were sent to the West Oregon property for the purpose of patrolling its docks. They had nothing to do with anything else. They had nothing to do with admitting people to those premises. That duty was performed by a Burns representative at the gate where they themselves were required to be identified before entering. They had nothing to do with the vessel moored at the dock, the St. Cloud Victory, boarding of which was
under the jurisdiction of the Pinkerton Agency. They had nothing to do with the Kingsley property. That was being guarded by Anderberg and Blackwolf. In short they were sent to the West Oregon property to patrol its docks — nothing more, nothing less.
They arrived in a jeep a few minutes before midnight and relieved the two other Coast Guards assigned to the same duty. At the time of the change, they were informed of the difficulty which had occurred a short time before involving respondent, Piel and Gill. The city police had already been notified. They had been out and were just leaving when Yeoman and Boynton arrived. Notwithstanding this fact, and notwithstanding the further fact that Yeoman and Boynton were assigned solely to patrol the West Oregon docks, they, shortly after they "started around our beat," abandoned their assignment, went on board the St. Cloud Victory and talked to plaintiff, Piel and Gill regarding the earlier difficulty. They then, instead of returning to their patrol, requested respondent and Gill to go with them to make an investigation. They were asked upon cross-examination what authority they had and admitted that they had none except to report to their base. Yeoman testified: "We were supposed to find out anything happening like that, and report it to the base, and we just figured that something like that should be reported and we should investigate it." This whole unfortunate affair was caused by two well-meaning, patriotic young men who "figured that something like that should be reported and we should investigate it." If it was at all necessary for them to report the earlier incident to their base, they then and there had information sufficient to enable them to do so. The guards they were relieving had not thought it necessary. Certainly no one would contend
that they had any authority at that time of night to try out any question of fact, or to perform any other judicial function in a determination of who was right and who was wrong in connection with the earlier incident.
Let us not forget this war time setting of these events. The air was permeated with alertness. These Coast Guard regulations provide that these Kingsley guards should be instructed in their duties by the owner of the facility. Code of Federal Regulations for the United States of America (1944 Supp.), Title 33, Chapter I, Part 7, § 7.23. Blackwolf had been instructed in accordance therewith to admit no one to the Kingsley property. It was midnight. The plant was not in operation at that time. There was no occasion for anyone to enter. These war time regulations explain why Blackwolf was at the Kingsley property armed with a deadly weapon. What for? To keep out intruders in accordance with his instructions. They explain why a Burns representative was at the gate admitting no one, except those who were qualified and identified. They explain why the Pinkerton representative was admitting no one to the St. Cloud Victory, except those who were entitled to go aboard. They explain why Yeoman and Boynton were assigned to patrol the West Oregon docks.
The waterfront was completely organized, guarded and patrolled. Everyone connected therewith had a duty to perform. If everyone performed the duty assigned, the wheels of a vast war time industry would synchronize. If any one of those agencies deviated from its assignment to go on an excursion which it "figured ought to be attended to," it would lead to confusion and chaos. It would make it impossible for
any one to effectively guard his property. It would naturally lead to unfortunate affairs like the one involved herein. To construe these regulations as giving these Coast Guards the right to leave their assignment and go out on their own at midnight to investigate any of the other agencies, would defeat the very purpose of the regulations.
Yeoman and Boynton had no right to go on the Kingsley property to investigate or perform any other duty then assigned to them, and, consequently, they had no authority to request respondent to accompany them to that place for any purpose. They were all trespassers. 52 Am. Jur., Trespass § 12, p. 844; 63 C.J., Trespass § 12, p. 894; § 8-312, O.C.L.A. It was error for the court to instruct the jury that respondent was not a trespasser.
It is contended by respondent that, even though it was error to so instruct the jury, the error was harmless. This contention is based upon the proposition that the mere fact that respondent was a trespasser did not justify Blackwolf in shooting him. This proposition is well established by the authorities, and we so hold. The rule applicable to this case may be stated as follows: A person aggrieved by a trespass may repel the intruder by such force as may be reasonably necessary, short of taking human life or causing great bodily harm; and if, while so doing, the trespasser commits any overt act giving the one aggrieved reasonable ground to believe himself in imminent danger of losing his life or receiving great bodily harm, he may in self-defense use a weapon, even to the extent of taking the life of his assailant, if reasonably necessary. State v. Tarter, 26 Or. 38,42, 37 P. 53; Newcome v. Russell, 133 Ky. 29, 117 S.W. 305, 22 L.R.A. (N.S.) 724 and note; 26 Am. Jur. 273; note 25 A.L.R. 508.
Let us again take a glimpse at the situation at the time of the shooting. Yeoman testified that as the four of them approached the office on the Kingsley property, the light in the office went off and that Blackwolf "hollered out and wanted to know who we were, and `Get off of there.'" He then said that he called out, "This is the Coast Guard. We want to talk to you." They continued to approach the Kingsley office and, as they "swung around," respondent and Gill were in the lead and the two Coast Guardsmen were a short distance behind. Continuing, Yeoman testified:
"* * * Blackwolf stuck his head out of the door again and hollered, `Get out of here, all of you.' And I said, `This is the Coast Guard. We want to talk to you.' And he said, `I don't give a damn who it is. Get out of here, all of you.' And it was just `Bang! Bang!' And Mr. Eldred (respondent) spun around, and it hit him, and he spun around, and he says, `Go on; get out of here, you fellows. He's got me.'"
Blackwolf's version is quite different. He testified that he saw the four men approaching the office about 43 feet away and that he "called to them and asked them where they were going." Whereupon, "the tallest of the four (respondent) said, `It is none of your damn business where we are going.' I said, `What do you want?' He said, `We want you.'" He further testified that when the man came around in front of the office, he called again for them to stop but they refused to do so. "I said, `What do you want?' They said, `We want you.'" Blackwolf said they kept on coming. He further testified that there was "a small arc light that gleamed just past the corner of the building
and struck the man (respondent) about his waist, from there on down. The gleam flashed on a gun that this man was carrying in his right hand." Blackwolf testified:
"When I saw the gun I pulled my gun from the scabbard in this position (indicating). I shot, not meaning to hit anybody, and aiming it as a warning shot to halt him. At the report of the first shot the two men in the lead started and ran up the driveway south towards the St. Helens Road.
"As they crossed the railroad tracks, one of the two gentlemen knelt down as though he was trying to shove something under the end of the planks of the driveway."
To instruct the jury that respondent was not a trespasser as a matter of law was to remove entirely from its consideration the effect upon Blackwolf, whatever that may have been, of the failure of respondent and his aides to stop when challenged. It was tantamount to instructing the jury that respondent et al. did not need to stop, that they had a right to proceed, without disclosing their identity, if Blackwolf's testimony is to be believed. Such a doctrine would be dangerous to society in peace time, and more especially in time of war. The act of trespass was an act of aggression which the jury was entitled to consider along with all the other evidence on the question of whether Blackwolf had reasonable ground to believe himself in such personal danger as to justify the use of a weapon. The instruction was not only erroneous, but was prejudicial.
Counsel for respondent, in support of their position that the Coast Guards had authority to go on the Kingsley property to investigate and to request respondent to accompany them, call our attention to Wright v. White, 166 Or. 136, 110 P.2d 948, 135 A.L.R. 1, and the extended note commencing on page 10, and particularly to cases cited beginning at pages 19 and 37. The gist of these cases, as well as other similar cases, is well summarized by the author of the note at page 37 as follows:
"Recognition of the peculiar necessity of discipline in the military service and of the position in which the subordinate may find himself through no fault of his own, in the event that commands of his superiors clash with the civil authority, has led courts in well-considered cases to regard obedience to a military order as a justification for conduct which would otherwise give rise to civil or criminal liability, unless the order is so palpably unlawful that a reasonable man in the position of the person obeying it would perceive its unlawful quality."
The cases are not applicable. Here discipline required that Yeoman and Boynton perform the duty assigned to them — to patrol the West Oregon docks. Here the Captain of the Port was not called, nor were any regulations produced to sustain the contention that Yeoman and Boynton should have been subject to discipline had they not made this investigation. This is not a case where Coast Guardsmen are claiming an exemption from liability because, under orders, they violated some law of civil authority. Here respondent seeks redress for injuries received while with the Coast Guardsmen. The issue here was: What effect did this trespass or act of aggression have on Blackwolf when he fired the shot inflicting the injury? Did it, together with other circumstances present at the time, give him reasonable ground to believe that he was in danger of receiving great bodily harm?
Again, it is contended that "the question of trespass
was only material to the issue of whether Blackwolf shot in defense of property and upon withdrawal of that defense it ceased to have any bearing on the case." This contention is based upon a misconstruction of the record. The effect of what counsel for appellant said was that they did not contend that the shooting was justified in defense of property. This did not have the effect of taking out of the case the question of trespass, nor was it so construed by any of the parties. The authorities cited by respondent do not sustain his contention.
Much space is devoted in the briefs of the parties to the question of whether or not the Kingsley property was a waterfront facility. Taking into consideration the war time setting of these events, we are considering this case from that standpoint although the question is a close one.
Respondent cites Title 33 Code of Federal Regulations (Cum. Supp.), Chapter I, Part 8, § 8.1201, in support of his contention that Yeoman and Boynton had authority to make arrests. The regulation not only fails to sustain this contention, but Yeoman testified positively that they had no such authority.
Brown v. Cain, 56 F. Supp. 56, is cited to the same effect. This case is most interesting. There the temporary Coast Guardsmen were guarding a war time industry at Chester, Pennsylvania. Their duties included the "suppression of disturbances which might cause damage to machinery and equipment or affect the security of the plant." The guards were attacked by a mob and a riot ensued. One of the guards shot and killed one of the leaders of the mob. The court held "that any act done by Brown which was reasonably necessary to quell a riot * * * was done in the performance of
his duty." Translated to this case that means that, if Yeoman and Boynton had been on guard duty and had a riot occurred in their presence which threatened the safety of the property they were guarding, they would have had authority to quell the riot, and, if it was reasonably necessary, could take human life to accomplish that purpose. The doctrine there taught rather tends to fortify Blackwolf's position than that of Yeoman and Boynton.
It is contended that Yeoman and Boynton had implied authority to go on the Kingsley property to make this investigation, that it was essential to the accomplishment of the main purpose of their assignment. Many authorities are cited in support of this position. The rule applicable is thus stated in 46 C.J., Officers § 301, p. 1035:
"The duties of a public office include those lying fairly within its scope, those essential to the accomplishment of the main purpose for which the office was created, and those which, although incidental and collateral, serve to promote the accomplishment of the principal purposes. * * *"
Section 327, at page 1043, should be read in connection with this statement: "When a public officer goes outside the scope of his duty, he is not entitled to protection on account of his office, but is liable for his acts like any private individual." The investigation of the Coast Guardsmen on the Kingsley property was neither incidental nor essential to the accomplishment of the main purpose of the duties assigned to Yeoman and Boynton. Their action is governed by the latter section.
The contention is made by respondent, and much authority is cited in support thereof, that "If a trespass on property is accomplished by acts that amount
to an assault upon the owner, such as would warrant him in exercising the right of self-defense, then the force he may use will be governed by the rules applicable to the right of self-defense." This contention is stated in the language of 4 Am.Jur., Assault and Battery § 63, p. 162, and correctly states the rule. But no case has been cited, and we have found none, holding that, in applying the rules of self-defense and determining whether or not the one defending himself had reasonable ground to believe that he was in danger of receiving great bodily harm, the first act of hostility, to-wit, the trespass, becomes immaterial.
In their efforts to justify the presence of Yeoman, Boynton and respondent at the time and place of the shooting, it is suggested by counsel for respondent that since Yeoman, Boynton and respondent had reasonable grounds to believe that Blackwolf had committed the felony of assault with a deadly weapon by striking Piel with his gun, they had a right — even as private citizens — to go to the Kingsley property to arrest Blackwolf. This contention cannot be sustained. The cross-examination of these parties makes it abundantly and conclusively clear that they did not go there for that purpose.
Again, respondent contends that appellants are estopped from claiming that he was a trespasser and that any error in the instructions on that subject was invited. This position is predicated upon the theory that when appellants withdrew the defense of property, the issue of whether or not respondent was a trespasser was thereby eliminated from the case. We have already pointed out that that contention is based upon a misconstruction of the record. The issue regarding respondent being a trespasser was never withdrawn. It had to be
disposed of by the court, and it was not inviting error to ask the court to do so.
Appellants predicate error on the rejection of the following offer of proof by witness Harleigh Glass, an employee of the Burns Agency, who worked as a watchman at the Tidewater Oil Company office:
"* * * that (Glass) left there about 11:30 P.M., when three young men, whom he would describe sufficiently for identification, to identify them as the plaintiff Eldred and his two companions, went to the Tidewater office, and a few minutes later they came out, and when they reached the road junction with the Kingsley road `they all three stopped and hollered and kept hollering all the time I was there, "Come up, you dirty son of a bitch, and bring your gun with you. Come up and fight like a man. Bring your gun and we will break it off in you,' and other remarks of a similar nature. They were still yelling when my bus came along and picked me up. I was about 35 or 40 feet from them. I did not know they were yelling at our guard at Kingsley, but believe they were within hearing distance from the Kingsley office if anyone had been outside the office. I knew nothing of any trouble having taken place at Kingsley's, but thought they were scrapping with some of their own men who were out of my sight.'"
The witness was not present at the time the showing was made, and it is not at all clear that the same question will present itself in the same form upon a retrial. The court sustained the objection to the offer of proof because the threats were not communicated to Blackwolf. In this respect the court was in error. Evidence of such threats, even though uncommunicated to the latter, would be admissible to show a hostile state of mind.State v. Rader, 94 Or. 432, 186 P. 79; State v. Doris, 51 Or. 136, 94 P. 44, 16 L.R.A. (N.S.)
660; State v. Thompson, 49 Or. 46, 88 P. 583; State v.Tarter, supra.
Again, it was error to receive the testimony as shown by appellants' sixth assignment of error with reference to respondent's Coast Guard identification card, and likewise the evidence shown by appellants' seventh assignment of error having to do with respondent's "ship's pass." All of this was objected to on the ground that it was immaterial. It was immaterial. It did not give respondent the right to cross the Kingsley property. The record is clear in this case that the vessel, the St. Cloud Victory, was moored at the dock of the West Oregon Company and that there was a regular gate for admitting people to and from those premises.
The rules and regulations referred to provide:
"§ 7.25. Basic requirements. No person shall enter upon or be permitted to enter any waterfront facility unless he shall possess all of the following:
"(a) A Coast Guard identification card * * *.
"(b) Any of the following kinds of passes: * * *
"(5) A pass when approved by the master, senior deck officer on duty, or representative of the owner in a position of authority of a vessel moored at the waterfront facility.
"(c) A legitimate reason for seeking entrance to the waterfront facility at that particular time. * * *" (Italics supplied.)
Respondent had no legitimate reason for seeking entrance to the Kingsley property at the particular time. The place for him to enter the waterfront facility at which his vessel was moored was at the gate of the West Oregon property. He was clearly a trespasser attempting to cross the Kingsley property. Counsel contend that a seaman might have to cross
other property than the one at which the vessel was moored in order to get to and from the same. Certainly no vessel will be moored at any waterfront facility where there is no means of egress or ingress. If the seaman follows the course provided for such purpose, he will bring himself within the regulations. He will have "a legitimate reason for seeking entrance" thereto. Certainly no one would contend that seamen from all the vessels moored at all the waterfront facilities, who had a Coast Guard identification card and a "ship's pass," could roam the waterfront facilities promiscuously. To permit this would defeat the very purpose of these war time regulations and all of the war time effort to guard and protect a war time industry.
It is not deemed necessary to further indicate the particulars wherein the trial court entertained views of the law differing from those herein expressed, or advert to other errors assigned by appellants, as the same questions are not likely to arise on a new trial. The judgment of the circuit court is reversed, and the cause is remanded for a new trial.