Ticket is a contract between airline and passenger

PLJ 2011 SC 689
[Appellate Jurisdiction]

Present: Tassaduq Hussain Jillani, Khilji Arif Hussain & Asif Saeed Khan Khosa, JJ.

DAOUD SHAMI--Appellant

versus

M/s. EMIRATES AIRLINES and another--Respondents

Civil Appeal No. 1266 of 2003, decided on 27.10.2010.

(Against the judgment of the Lahore High Court, Lahore dated 13.1.2003 passed in RFA No. 745 of 2001).

Carriage by Air (International Convention) Act, 1966--

----R. 3 of Chapter II of the First Schedule--A bare reading of Rule 3.2 indicates that a passenger ticket constitutes, prima facie, evidence of a contract and the terms prescribed on the ticket would be the terms of the said contract.   [P. 694] A

WARSAW Convention, 1929--

----Art. 17--Under Art. 17 of the Convention, a carrier is liable only for the bodily injury in an accident during the operations of embarkation or disembarkation or in the carriage of the passenger.       [P. 694] B

Contract Act, 1872 (IX of 1872)--

----S. 73--Breach of contract--Award of damages--Compensation for loss or damage caused by breach of contract--Essential principles for award of damages--

(i)         such damages as naturally arose in the usual course of things, as a result of breach.

(ii)        and if he claims special damages for any loss sustained (which would not ordinarily flow from the breach) he must prove that the other party knew at the time of making the contract that the special loss was likely to result from the breach of the contract. [P. 700] C

1993 SCMR 441 & AIR 1960 Patna 411, ref.

Carriage by AIR International Convention, IATA Rules--

----Art. 13.12 & 13.15--Airline could refuse boarding if passenger is not in possession of requisite documents Freedom of refusing carriage for carriers--It is by now well recognized principle of the Contract Act that when one part of the agreement which cannot be separated from other part becomes impossible to perform, then the entire agreement becomes voidable at the option of the parties. [P. 701] D

Syed Najam-ul-Hassan Kazmi, ASC for Appellant.

Mr. M.A. Sheikh, ASC for Respondents.

Date of Hearing: 27.10.2010

Judgment

Tassaduq Hussain Jillani, J.--This appeal is directed against the judgment dated 13.1.2003 passed by the learned Lahore High Court vide which R.F.A. No. 745 of 2001 filed by respondent/defendant (Emirates Airlines) was allowed and the judgment and decree dated 28.7.2001 passed by the learned trial Judge was set aside and appellant's suit for damages was dismissed.

2.  Facts giving rise to the instant appeal briefly stated are that appellant Daoud Shami filed a suit for damages "on account of damages sustained by breach of contract", as according to him he having successfully completed his training course in the International College of Hospitality Management, Washington, was proceeding to USA to participate in the Graduation ceremony (for receiving a graduation certificate); that he booked a seat on the Defendant No. 1 (Emirates Airline) for traveling from Lahore to Washington through a travel agent (Defendant No. 2 Travel King (Pvt.) Ltd); that in terms of the itinerary he was to travel from Lahore to Dubai by a flight of Emirates Airline (EK-675) which was to originate from Lahore on 16.7.1999. From Dubai he was to board the same carrier [Emirates Airline (EK-100)] and from London to Washington D.C. he was booked on the Virgin Airline (C0449). He alleged that on 15.7.1999 on his arrival at Lahore Airport to undertake his journey, he was prevented from boarding the Lahore-Dubai Flight (EK-675). As a result of which, he was unable to attend the Graduation ceremony which caused mental shock, agony to him and the respondent airline was liable to compensate him for the loss accrued which was a direct consequence of the breach of contract.

3.  The respondent-defendant airline in the written statement filed by it controverted the allegations leveled in the plaint. It was maintained that plaintiff had purchased Continental Airlines' ticket from Defendant No. 2 Travel Kings. In terms of the itinerary given in the ticket, plaintiff had a confirmed booking with Defendant No. 1 (Emirates Airline) from Lahore via Dubai to London only and from there onwards it was the Virgin Atlantic Airlines which was to carry the plaintiff to Washington D.C. At 18:55 GMT on 15th of July, the Virgin Atlantic Airlines cancelled the onward flight from London to Washington. As the plaintiff did not have a UK Visa and in view of the U.K. Law prescribing a fine of approximately œ 2000 for carrying such a passenger to London, plaintiffs reservation from Lahore to Dubai/London was cancelled. It was further averred that it was Virgin Atlantic Airlines which could explain the cancellation of its flight but the said airline was never impleaded as a party in the suit.

4.  In terms of the divergent pleas, the trial Court framed following issue and the parties led evidence pursuant thereto:

"Whether the plaintiff has got booked a seat for USA from defendant through Defendant No. 2 and the seat was confirmed but the defendants have refused traveling to the plaintiff by that flight which amounts to breach of contract and therefore the plaintiff is entitled to recover U.S. Dollars one lac from Defendant No. 1 as compensation of breach of contract and damages?"

5.  The learned trial Court vide its judgment dated 28.7.2001 decreed the suit against Defendant No. 1. The learned High Court, however, vide the impugned judgment dated 13.1.2003 allowed respondent's appeal and dismissed the suit as it found that the ticket on which the plaintiff was to travel was issued by the Continental Airlines which had not been impleaded as a party; that the original ticket which could reflect terms and conditions of travel had not been tendered in evidence by the appellant-plaintiff and that damages could not be awarded as the defendant airline was neither aware of the special circumstances pleaded by the plaintiff for which he was going to Washington D.C. nor the damages could be claimed for alleged anxiety.

6.  Learned counsel for the appellant submitted that the appellant had a confirmed booking of his journey from Lahore to Dubai, London and from there to Washington D.C; that the ticket constituted a contract between the appellant and Respondent No. 1 (Emirates Airlines); that after the cancellation of connecting flight from London to Washington D.C. (Virgin Atlantic Airlines), it was the responsibility of Respondent No. 1 to provide alternate carrier in terms of the said contract; that on account of the cancellation of his booking by Respondent No. 1, he could not participate in the graduation ceremony of his college as a result of which he had suffered loss and mental shock and he be awarded damages. He further contended that although the appellant booked the ticket from a travel agent (respondent-Defendant No. 2 Travel Kings) yet the latter was acting as an agent of Defendant No. 1 (Emirates Airlines) and therefore the latter cannot be absolved of its liability. In support of the submissions made, learned counsel referred to the statement of PW-1, the father and attorney of plaintiff, the statement of DW-1 Shahid Tariq Bhatti which according to him clearly indicated that ticket was booked by the travel agent (Respondent No. 2) for respondent-Defendant No. 1's carrier Emirates Airlines and the latter was under an obligation to make alternate arrangements for his onward travel from London to Washington D.C. and having failed to do so it was liable to compensate the appellant for the loss and damage incurred.

7.  Learned counsel for Respondent-Defendant No. 1 defended the impugned judgment by submitting that Emirate Airlines had no contractual obligation to the appellant/plaintiff as Respondent-Defendant No. 2 being a travel agent was working on behalf of different carriers and in the instant case he had booked ticket for the Continental Airlines which is evident from the ticket itself title page of which was produced in evidence as Mark-C; that Emirates Airlines was merely a sub-contractor and the Continental Airlines was never impleaded as party in the suit. He referred to the statement of DW-1 Shahid Tariq Bhatti who in his examination-in-chief candidly stated that Respondent No. 2 (Travel Kings) had issued a ticket to the plaintiff for Continental Airlines and the said Airline in the normal course of its business books passengers for different destinations on several carriers and Emirates Airlines is one of those; that the Continental Airlines and Virgin Atlantic Airlines have code-share partnership and the former had booked a ticket of the latter airlines for plaintiff's journey from London to Washington D.C. but the said flight was cancelled at 11:55 p.m. the same night and the appellant-plaintiff who came to board the flight on 3.30 a.m. next morning was informed accordingly. Learned counsel also referred to the statement of PW-1 Muhammad Aslam Shami (father of the plaintiff and his attorney) who in his cross-examination admitted that the ticket which the plaintiff purchased was that of the Continental Airlines.

8.  Having considered the submissions of learned counsel for the parties, evidence led and the precedent case law cited, the questions which crop up for consideration are as follows:--

(i)         Whether the ticket purchased by appellant-plaintiff from Continental Airlines through Respondent No. 2 could be construed as a contract between the appellant-plaintiff and Respondent-Defendant No. 1 (i.e. the Emirates Airlines) and whether the cancellation of reservation (from Lahore to Dubai and London) on account of cancellation of Virgin Atlantic Airlines flight from London to Washington D.C. would amount to a breach of said contract?

(ii)        Whether the Respondent/Defendant No. 1 was liable to pay damages to the appellant-plaintiff for the loss and anxiety suffered on account of being unable to attend the Graduation ceremony?

9.  The law relating to international carriage by air has its genesis in the adoption of the Warsaw Convention of 1929 which was subsequently given the statutory force in India by the Carriage by Air Act, 1934. The Convention of 1929 was latter amended by the Hague Protocol of 1951 and 1954. In 1966 the Carriage by Air Act, 1934 (XX of 1934) was repealed and the Carriage by Air (International Convention) Act, 1966 was promulgated in Pakistan. The provisions relating to issuance of tickets for carriage of passengers are enumerated in First and Second Schedule to the afore-referred Act i.e. Act IX of 1966. Rule 3 of Chapter II of the First Schedule stipulates as follows:--

"3.--(1) In respect of the carriage of passengers a ticket shall be delivered containing--

(a)        any indication of the places of departure and destination;

(b)        if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;

(c)        a notice to the effect that, if the passenger's journey involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers for, death or personal injury and in respect of loss of or damage to baggage.

(2)  The passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage. The absence, irregularity or loss of the passenger ticket does not affect the existence or the validity of the contract of carriage which shall, nonetheless, be subject to these rules. Nevertheless, if with the consent of the carriage, the passenger embarks without a passenger ticket having been delivered or if the ticket does not include the notice required by sub-rule l(c) of this rule, the carrier shall not be entitled to avail himself of the provisions of Rule 22." (Emphasis is supplied).

10.  A bare reading of Rule 3.2, referred to above, indicates that a passenger ticket constitutes, prima facie, evidence of a contract and the terms prescribed on the ticket would be the terms of the said contract. Under Article 17 of the WARSAW Convention, a carrier is liable for damage sustained in certain situations. It reads as follows:

"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

11.  Under Article 17 of the Convention, a carrier is liable only for the bodily injury in an accident during the operations of embarkation or disembarkation or in the carriage of the passenger. According to the House of Lords, the rules of the Convention provide the liability of the carrier exclusively, Sidhu and others v. British Airways P1C Abnett (known as Sykes) v. British Airways P1C (1997) 1 All ER 193. It has been held by the House of Lords that a carrier has no liability for mental anguish or agony as it does not fall within the meaning of bodily injury, King v. Bristow Helicopters Ltd. (2002) 2 All ER 565.

12.  In the latest judgment report (2006) 1 All ER 786, it has been held that bodily injury has to be manifested in a case of Deep Vein Thrombosis which could occur in long haul flights, particularly in economy class. The case in hand however, does not fall within the ambit of Article 17 of the WARSAW Convention.

13.  The respondent-Emirates Airline, was privy to the contract but its liability under the law was limited to the sector for which it issued the ticket and to the terms and conditions attached with the ticket. Admittedly, appellant-plaintiff had purchased ticket of Continental Airlines from Defendant No. 2 i.e. Travel King. The general conditions mentioned on the ticket inter alia stipulate that a passenger is required to complete his travel documents including visa etc. Although the ticket was issued by Virgin Atlantic (from London to Washington) under the conditions of contract and carriage, liability of the carrier is sectorwise irrespective of which of the airline issued the ticket or made contract under the IATA Rules, the contract of carriage and conditions of carriage every airline is principal of its own sector. In the instant case, therefore, there is privity of contract between Emirates Airline and the passenger for carriage from Lahore to London. The original ticket was never tendered in evidence by the appellant-plaintiff which would have reflected the terms of the contract. However, from internet this Court downloaded "Emirates: Conditions of Carriage for Passengers and Baggage" (published 30th of December, 2009), the preamble of which addresses the passenger and stipulates as follows:

"If you have been issued with a ticket for carriage by air by Emirates, you will have a contract of carriage with Emirates. The contract gives you the right to be carried on a flight or series of flights and its terms are governed by:

.           the terms and conditions of contract of the Ticket;

.           these Conditions of Carriage;

.           applicable Tariffs; and

.           our Regulations."

14.  A reference to some of these conditions would be relevant which are as under:--

7.1 Our right to refuse carriage

We have the right to refuse to carry you or your Baggage on any flight (even if you hold a valid Ticket and have a boarding pass) if one or more of the events listed in Articles 7.1.1 to 7.1.21 has happened or we reasonably believe might happen, it being understood by you that we have no duty to make any enquiries when determining whether we believe an event might happen. See also Articles 7.2 and 10.5.4 concerning the consequences of being refused carriage and Article 18 concerning any decision we make about the application of Article 7.1 to you. (Emphasis is supplied).

7.1.12 you appear, in our exclusive opinion, not to meet requisite visa requirements or not to have valid or lawfully acquired travel documents or to have acquired them by fraudulent means or you wish to travel to or enter a country through which you may be in transit for which you do not have valid travel documents or meet the requisite visa requirements, or you destroy your travel documents aboard the aircraft or between check-in and boarding, or you refuse to allow us to copy your travel documents, or you refuse to surrender your travel documents to the flight crew, against receipt, when so requested; (Emphasis is supplied).

13.1.1 You are responsible for obtaining and holding all of the travel documents you need for any country you are visiting (even as a transit passenger).

13.1.2 You must obey all laws, regulations, orders, and other requirements of all countries you will exit, enter, or through which you will transit during your journey. (Emphasis is supplied).

13.1.5 We will not be liable to you if you do not have all passports, visas, health certificates and other travel documents needed for your journey or if any of those documents are out of date or if you have not obeyed all laws, regulations, orders, and other requirements of all countries you will exit, enter, or through which you will transit during your journey.

13.1.6 We will not accept you or your Baggage for carriage if your visas or travel documents do not appear to be in order or if you have not complied with the other requirements of this Article 13.1. We have the right to refuse carriage in this way even if you have started or completed part of your carriage before it becomes clear to us (whether as a result of operation of Article 13.1.4 or otherwise) that you have not complied with Article 13.1.

15.3.2 We will be wholly or partly exonerated from liability to you for Damage if we prove that the Damage was caused or contributed to by your negligence or other wrongful act or omission."

15.  The plea taken by respondent-defendant Emirates Airline in Paras-4 and 7 of the written statement was that it had not permitted the appellant-plaintiff to board its flight, on 16th of July because his onward flight from London to Washington (Virgin Atlantic Airlines) had been cancelled and that under U.K. law a fine of œ 2000 is imposed on the airline which carries to U.K. a passenger who is in transit at airport and does not have the U.K. Visa or a confirmed ticket for the onward journey. This factual and legal position has not been controverted by the appellant either through replication or during submissions made by his counsel. The Emirates Conditions of Carriage for Passengers and Baggage to which reference has been made in the preceding para, clearly indicate that possession of requisite documents including Visa was part of the contract. A bare reading of the U.K. Immigration Laws lend credence to respondent-Airlines' plea that the U.K. Immigration Rules do not permit a passenger in transit having no visa to stay beyond 48 hours. It has never been appellant-plaintiffs case that he had a U.K. visa or that he had booked another flight from London to Washingtonwhich was to fly within the afore-mentioned 48 hours of his arrival at U.K. A reference to Immigration Rules of U.K. would be in order:

Requirements for admission as a visitor in transit to another country.

47. The requirements to be met by a person (not being a member of the crew of a ship, aircraft, hovercraft, hydrofoil or train) seeking leave to enter the United Kingdom as a visitor in transit to another country are that he:--

(i)         is in transit to a country outside the common travel area; and

(ii)        has both the means and the intention of proceeding at once to another country; and

(iii)       is assured of entry there; and

(iv)       intends and is able to leave the United Kingdom within 48 hours.

Leave to enter as a visitor in transit

48.  A person seeking leave to enter the United Kingdom as a visitor in transit may be admitted for a period not exceeding 48 hours with a prohibition on employment provided the Immigration Officer is satisfied that each of the requirements of Paragraph 47 is met.

Refusal of leave to enter as a visitor in transit.

49.  Leave to enter as a visitor in transit is to be refused if the Immigration Officer is not satisfied that each of the requirements of Paragraph 47 is met.

Extension of stay as a visitor in transit.

50.  The maximum permitted leave which may be granted to a visitor in transit is 48 hours. An application for an extension of stay beyond 48 hours from a person admitted in this category is to be refused. (Emphasis is supplied).

16.  The Emirates Airlines Respondent-Defendant No. 1 did not permit respondent-plaintiff to board the flight as the latter was unable to perform his part of the contract which was a mandate of law i.e. he was in transit in London; did not have a U.K. visa; his onward flight from London to Washington D.C. had been cancelled; he had no alternate arrangements and he could not stay beyond 48 hours in transit. In such a situation, besides Article 13.1.6 of the Emirates conditions of carriage (referred to in Para 14 above), in terms of Article 33 of the Warsaw Convention as amended at Hague, the carrier may refuse to carry a passenger and perform its part of the contact if the travel documents are not complete. Article 33 reads as under:

"Except as provided in Paragraph 3 of Article 5, nothing in this Convention shall prevent the carrier either from refusing to enter into any contract of carriage or from making regulations which do not conflict with the provisions of this Convention."

17.  Commenting on the import of Article 33, Chitti on Contracts observes:--

"Even where a contract has been entered into, I.A.T.A. Conditions of his reasonable discretion, the carrier decides that such action is necessary for reasons of safety or to prevent violation of the laws of any country to be flown from, into or cover; or that the conduct, age or mental or physical condition of the passenger is such as to require the carrier's special assistance, or to cause discomfort or objection to other passengers, or to involve any risk to himself or to other persons or to property. The carrier may also refuse carriage if he decides such action is necessary owing to the failure of the passenger to observe the instructions of the carrier." (Emphasis is supplied)

18.  If the Emirates Airlines had permitted the plaintiff to board the flight, it would have been violative of the U.K. Immigration Rules and a contract against law cannot be enforced.

19.  This brings us to the second question mooted i.e. whether the Respondent/Defendant No. 1 was liable to pay damages to the appellant-plaintiff for the loss suffered? The question assumes that there was a breach of contract and what would be the consequence or liability of a party which is guilty of breach. Without going into the question whether damages in the case of carriage by Air will be confined to special law, the general principles of damages under the Municipal Law can be invoked in appropriate cases. A reference to Section 73 of the Contract Act would be in order which reads as under:--

"Sec. 73. Compensation for loss or damage caused by breach of contract. When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.

Compensation for failure to discharge obligation resembling those created by contract.--When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract."

20.  There is no cavil to the proposition that when the contract is broken, the party who suffers such a breach is entitled to receive compensation from the party who has breached the same, compensation for any loss or damage suffered by him provided it naturally arose in the usual course of things from such breach or which the parties knew when they made the contract to be likely to result from the breach of it. In the famous case of Hadley v. Baxendale [(1854) 9 Exch 341], it was held that, "when two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach should be either such as may fairly be considered as arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonable be supposed to have been in the contemplation of both the parties at the time the contract was entered into as a probable result of the breach."

21.  The afore-referred provision of law and the precedent case law to which reference has been made above lay down two essential principles for award of damages which are as follows--

(i)         such damages as naturally arose in the usual course of things, as a result of the breach,

(ii)        and if he claims special damages for any loss sustained (which would not ordinarily flow from the breach) he must prove that the other party knew at the time of making the contract that the special loss was likely to result from the breach of the contracts.

22.  In the case of Syed Ahmad Saeed Kirmani v. M/s. Muslim Commercial Bank Ltd., Islamabad (1993 SCMR 441), this Court held that only such damages could be recovered which would naturally arise in the usual course of things from such breach or the parties at the time of making the contract know that loss or damage was likely to be result from the breach.

23.  Applying the rules referred to in the preceding paragraph to the facts of the instant case, we find that although the loss was being claimed by the appellant-plaintiff on the basis of special circumstances i.e. that the former had to attend his graduation ceremony in Washington D.C., the said circumstance was not brought to the notice of the defendant airline. In the entire body of the plaint, there is no averment that defendant-airline was informed that he had purchased the ticket and was proceeding to U.S. to attend the graduation ceremony. Even in the evidence led before this Court, no reference was made that respondent-Airlines had notice of the afore-mentioned special circumstance. In Mohindra Lall Sen v. Union of India (AIR 1960 Patna 411), the Court refused to grant damages to a passenger who alleged that on account of delay of train, he had missed the engagement. The Court found that he could only be awarded damages if the railway administration knew at the time of reservation of the suit that plaintiff had an engagement at the place of destination which he could miss if the train was delayed. The Court held as follows:--

"There was no contract to take him to Calcutta for a particular object. It is well to remember that the punctuality of the train is not guaranteed; and assume that on the relevant date the Down Janata Express reached Calcutta very late, say, after 9-00 hours. By the lateness of the train also the plaintiff might have missed the engagement. Can it be reasonable urged that the plaintiff would be entitled to damages on account of his missing the engagement because the train reached late? This circumstance is sufficient to show in bold relief that the damage, on account of his missing his engagement cannot be said to be a natural consequence of the breach of contract by the Union of India.

The plaintiff would also be entitled to damages if the Railway Administration knew at the time of reservation of the seats that the plaintiff had an engagement in Calcutta at 9-00 hours on 29.9.1954, and that he had booked the tickets and reserved the seats in order to go there to fulfill the engagement. Unfortunately, there is no evidence on this point. There is nothing to show that the plaintiff told the Railway authorities that he was booking the tickets and reserving the seats for an engagement in Calcutta at 9-00 hours on 29-9-1954."

24.  As discussed in Para-12 above, the instant case does not fall within the ambit of Article 17 of the WARSAW Convention and the contract to which the respondent-airline was privy inter alia included application of the Emirates Conditions of Carriage for Passengers and Baggage. A passenger in possession of Emirates ticket is mandated to obey laws, regulations and other requirements of all countries which he will enter or exit during journey (Article 13.1.2); the Airline could refuse boarding if the passenger is not in possession of the requisite documents (Article 13.1.5). In refusing the appellant-plaintiff to board the Emirates flight in question, the respondent-Airline was merely complying with the terms of the contract. It is the responsibility of the passenger to have in possession all travel documents including a visa. The Emirates Airlines in the instant case is not liable because the boarding was not refused on any omission or negligence on its part. The freedom of refusing the carriage for carriers is embodied in the International Conventions, IATA Rules, Resolutions and the terms of the ticket itself. It is by now well recognized principle of the Contract Act that when one part of the agreement which cannot be separated from other part becomes impossible to perform, then the entire agreement becomes voidable at the option of the parties and the respondent in these circumstances rightly  refused  to  issue boarding card to the appellant not only to avoid inconvenience that may be caused to the appellant at London Airport but to avoid penal consequences in terms of municipal law of U.K., which prohibit stay in transit to a passenger more that 48 hours at Airport by imposition of the penalties on the airlines.

25.  The appellant-plaintiff neither in the plaint nor in the evidence led, mentioned the date of graduation ceremony which he was to attend, how his non-participation had made the degree of less value or how he was assured a job if the had attended the ceremony or how it injured his feelings. He never made any attempt to have fresh booking for travel to U.S. which would have been reflective of his bona fides qua the claim being agitated. He even never bothered to appear himself before the Court and have his statement recorded.

26.  For what has been discussed above, the impugned judgment is neither against the evidence led nor law declared and the same is therefore unexceptionable. Finding no merit in the appeal, it is dismissed with no order as to costs.

(M.S.A.)           Appeal dismissed.