This appeal is identical, as to the questions involved, with the appeal in the ease of Ferry v. O'Brien, ante, p. 629 [206 Pac. 449], and for the reasons set forth in said decision the judgment herein is affirmed.

Richards, J., pro tem., Shurtleff, J., Lawlor, J., Sloane, J., and Wilbur, J., concurred.

Shaw, C. J., being disqualified by relationship to plaintiff’s attorney, did not participate.

Rehearing denied.

*799All the Justices concurred, except Shaw, C. J., who did not participate, owing to relationship to attorney for respondent.

Waste, J., was absent, and Richards, J., pro. tern., was acting.