author: WOODSON, J.

text:
    JOHN OBERMEYER, by His Next Friend, v. LOGEMAN CHAIR MANUFACTURING COMPANY, Appellant.
    Division One,
    June 14, 1910.
    1. NEGLIGENCE: Construction. Where there was some evidence tending to show that the master’s elevator on which plaintiff was injured while it ascended was negligently constructed, and that plaintiff’s injury was due to such faulty construction, a demurrer to the evidence should not be sustained.
    2. -: -: Contributory Negligence. Where there was evidence that plaintiff’s injury was due to faulty construction and his evidence does not conclusively convict him of contributory negligence, no demurrer to his case should be sustained.
    S. -:-: -: Fourteen-Year-Old Boy. A standard of care required of an adult does not apply to a boy fourteen years old; and it is the duty of employers of boys and girls of immature years not to expose them to such dangers as they are not likely to see, or, if seen, to appreciate. And where the fourteen-year old employee was standing near the edge of the ascending elevator, leaning on the shoulder of another boy, who stepped back on his toes, causing him to step back and his heel to be caught beneath the projecting edge of the floor-beam at the open door to the elevator shaft, it was for the jury to say, even though he had frequently gone up and down the elevator and knew of the faulty construction and dangerous projection at the exposed and uninclosed doors, whether or not he was guilty of contributory negligence.
    4. -: Assumption of Risks. The servant assumes only such risks as are ordinarily incident to his employment, after the master has performed his whole duty to provide him a reasonably safe place in which to work and reasonably safe appliances with which to do his work; and where the master furnishes the servant an elevator negligently constructed, yet not so obviously dangerous that a reasonably prudent person would not continue to use it, the servant does not assume the risk of being injured by such elevator.

      5. -: Concurrent Act of Another: Proximate Cause. Where another boy in the elevator stepped back on plaintiff’s toes, causing him to step back and catch his heel between the floor of the ascending elevator and the projection of a foot beam at the uninclosed door, plaintiff can recover, although his injury was the result of the combined negligence of defendant ' and the action of the other boy. Plaintiff will not be denied a recovery on the theory that the other boy’s stepping back on his foot was the proximate or primary cause of his injury.
    6. -: Testimony: Physician: Employee of Defendant: Double Purpose. Where the physician was in defendant’s employ, and after the accident was sent by defendant to treat plaintiff, and did, and while plaintiff was suffering from shock and severe pain, plied him with questions, for the double purpose, both to ascertain his condition with the view of treating him, and to get some statement or admission that would-be advantageous to defendant, the interview will not be split into parts and the physician be held competent to testify to some of plaintiff’s statements to him and incompetent as to others, but he will be held incompetent to testify to any statement plaintiff made. Aside from that, the excluded testimony in this case was merely cumulative.
    Appeal from St. Louis County Circuit Court.— Hon. Jno. W. McElhinney, Judge.
    Affirmed.

      Wise & McNulty and Seddon <& Holland for appellant.
    (1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the evidence, (a) Because there was no evidence to sustain any of the allegations of negligence contained in respondent’s petition, (b) Because the evidence clearly showed that the risk of riding on the elevator was assumed, by the respondent. Devitt v. Railroad, 50 Mo. 302; Cagney v. Railroad, 69 Mo. 416; Smith v. Railroad, 69 Mo. 32; Price v. Railroad, 77 Mo. 510; Flynn v. Railroad, 78 Mo. 195; Spiva v. Osage C. & M. Co., 131 Mo. 241; Nugent v. Milling Co., 131 Mo. 241; Lucey v. Oil Co., 129 Mo. 32 ;’Fugler v. Bothe, 117 Mo. 475; Steinhauser v. Spraul, 127 Mo. 541; Epperson v. Postal, 155 Mo. 346; Boberts v. Telephone Co., 66 S. W. 157; Matthias v. Kansas City, 84 S. W. 66; Bailroad v. McBride, 135 U. S. 554; Bailroad v. McDade, 191 U. S. 64; Miller v. Cordage Co., 126 Fed. .195; Higgins v. Carpet Co., 79 Fed. 900; Kneisley v. Pratt, 148 N. Y. 372; Sullivan v. Mfg.' Co., 113 Mass. -396; Goodrich v. Washington Mills, 160 Mass. 234; O’Malloy v. Boston Gas, 158 Mass. 135. • (2) The court erred in giving instruction 1 at the instance of respondent, because there is no evidence upon which to base portions of it. Stone v. Hunt, 114 Mo. 66; State v. Hope, 102 Mo. 410; Evans v. Interstate Co., 106 Mo. 59; State v. Brown, 145 Mo. 680; Wilkerson v. Eilers, 114 Mo. 345. (3) The court erred in refusing to allow appellant’s witness, Dr. Amyx, to testify in regard to a conversation between himself and respondent on the day of the accident, when, in the presence of several witnesses, including appellant’s treasurer, the respondent stated how the accident happened, (a) The particular communication sought to be elicited from this witness was not one that was made by the patient in order to enable the physician to properly treat him. Wigmore on Ev., par. 2383. (b) It was not privileged because it was made by the respondent to his physician in the presence of several witnesses, one of them being the treasurer of appellant company. Denser v. Walkup, 43 Mo. App. 625; Scherstein v. Scherstein, 68 Mo. 235; Long v. Martin, 152 Mo. 668, 71 Mo. App. 569; 23 Am. and Eng. Ency. Law, p. 96; Wigmore on Ev., par. 2311; Sharron v. Sharron, 79 Cal. 635; Goddard. v. Gardner, 28 Conn. 172; Hartford Co. v. Beynolds, 36 Mich. 502; House v. House, 61 Mich. 69; People v. Buchanan, 145 N. Y. 1; Hummell v. Kistner, 182 Pa. St. 216.

      Walther é Muench and A. R. Taylor for respondent.
    (1) This cause is before this court upon a certificate of division of the judges of the St. Louis Court of Appeals, from an affirmance of the judgment by a majority of that court, Mr. Justice Noktoni dissenting on the sole ground that respondent assumed the risk arising from a defective condition or construction of the elevator shaft in question. This was the sole ground of the dissent as appears from dissenting opinion, 120 Mo. App. 78. (2) The doctrine on which the dissenting opinion is predicated, to-wit: that a servant, by remaining in the service with knowledge of a defective condition of an appliance used, thereby assumes the risk arising from such defects, is entirely overthrown in this State by what now is a settled rule of decision. The rule as finally settled is this: that the servant never assumes and can never assume the risk that arises from the negligence of the master in failing to perform his contractual duty for his servant’s safety. This court has steadily adhered to this vital principle of the relation of master and servant in its rulings, beginning as early as the case of Blanton v. Dold, 109 Mo. 76, and followed in Settle v. Railroad, 127 Mo. 343. Pauck v. Beef Co., 159 Mo. 477; Carter v. McNair, 173 Mo. 280; Cole v. Railroad, 183 Mo. 90; Bulz v. Murch Bros., 199 Mo. 286; Charlton v. Railroad, 200 Mo. 433; George v. Railroad, 225 Mo. 364. (3) If assumption of risk of the master’s negligence cannot obtain as to an adult sui juris, how can it prevail against this minor who cannot have a contract enforced against him if he had made such contract?
   WOODSON, J.

— This cause was tried in the circuit court of the city of St. Louis, and resulted in a judgment in favor of the plaintiff for the sum of $3000. The defendant appealed the cause to the St. Louis Court of Appeals, where the judgment of the circuit court was affirmed, in a very able and exhaustive opinion written by Judge Bland, in which Judge Goode concurred, and from which Judge Nortoni dissented. Because of this dissent the cause was certified by that court to this.

After a very careful consideration of Judge Bland’s opinion, we find that he has carefully considered each and every question presented by the record; and in our opinion he correctly disposed of each and all of them, leaving nothing new to be added by this court, except we have added a few additional authorities supporting some of the legal propositions so ably decided by that court, which we embraced in brackets.

We, therefore, adopt the opinion of the St. Louis Court of Appeals as the opinion of this court in this cause, which is in words and figures as follows:

The appellant is a corporation engaged in the manufacture of chairs, in the city of St. Louis. On June 23,1902, the respondent, then fourteen years and eleven months old, was in the employ of the appellant, and at work on its freight elevator. As the elevator ascended from the first floor, the respondent’s foot was caught, at the third or fourth floor, between the elevator and a projecting strip of timber nailed on the floor-beam, and so badly crushed as to necessitate the amputation of his leg about ten inches below the knee. The suit is to recover for the injury. The negligence alleged, and relied upon at the trial for recovery, is as follows:

“That said elevator upon two sides thereof was not provided with gates or guards to prevent persons riding thereon from coming in contact with obstructions in the shaft; that between the sides so left open and the walls of the shaft was a space of several inches; that from each floor there extended a strip or sill of wood several inches in width and reaching to the sides of said elevator so exposed; that the failure to inclose said elevator on said sides and the extension of said strip into said elevator shaft made it extremely dangerous and hazardous to ride upon said elevator, in that persons so riding thereon were apt to come in contact with said sill; that defendant carelessly and improperly exposed plaintiff to the dangers of said elevator and negligently omitted to give plaintiff notice of such dangers or instructions to protect himself from injury.”

The answer was a general denial and the following plea of contributory negligence:

“Further answering, the defendant states that whatever injuries, if any, were sustained by plaintiff on the occasion, mentioned in his petition by and on account of the matters and things in said petition set forth were caused by the negligence of plaintiff directly contributing thereto in this, to-wit: That on the said occasion said plaintiff, while ascending in an elevator, carelessly and negligently stood near the edge of the said elevator platform, and as said elevator ascended said plaintiff carelessly and negligently allowed a portion of his foot to project over the ed'ge of said elevator platform in such a manner as to allow it to be struck by a portion of the siding or inclosure of said elevator. And defendant states that the said acts of negligence on the part of said plaintiff directly contributed to cause whatever injuries, if any, were sustained by him on said occasion.”

A reply was filed denying the new matter stated in the answer.

The elevator was simply a board platform constructed of rough boards, with no cage or shield, and four uprights connected at the top and running in grooves. The north side of the shaft in which the elevator ran was inclosed by a solid brick wall, the south side by a solid wooden wall. The east and west sides were not inclosed, except by doors on each floor which opened and closed automatically as the elevator ran up or down. There were five floors in the building, each story being about seven and one-half feet high. The distance between the elevator platform and the several floors abutting the elevator shaft was about three inches. To lessen these openings for the purpose of preventing the legs of chairs catching between the elevator and the floors when dragged from one to the other, a strip of timber one and one-half inches square was nailed on the floor-beams on a level with the floor. The floor-beams are twelve inches wide.

Respondent testified that he had been working in the factory for several months, at different jobs, but had not worked on the elevator until about twelve days before he was injured; that by direction of the boss, he and several of the boys about his own age, for twelve days prior to his injury, between the hours of five and six p. m., had worked on the elevator, removing chairs from the upper to the lower floor; that on the day of his injury two loads of chairs had been carried down and the elevator was going up to the fifth floor for the third load; that while he was leaning on the shoulder of one of the boys (Clyde Harder) facing east, Harder stepped back on his toes and he threw his foot back, and his heel was caught between the elevator and the projecting strip at the third floor and crushed. He further testified that he knew the strips were on the sills, knew that if he got his foot caught between one of them and the elevator he would be hurt; that it was dark on the first floor, but not so dark on the second and third floors as to prevent one from seeing his surroundings. He also stated that he had not been warned by the foreman or anyone else to look out and be careful not to let his foot get caught between the elevator.

Respondent introduced testimony of an expert, tending to show that the construction adopted by appellant was not the usual construction of elevator shafts, but that the usual construction was either to have the twelve-inch beam extended out further so as to be within one and one-half inches of the passing elevator, or else to fasten a sill at each floor, and have the said sill, instead of extending down one inch, extend down the entire width of the beam. Said expert expressed the opinion that either of said constructions would obviate the dangers incident to a construction like that adopted by appellant.

The testimony in behalf of appellant tended to show that the shaft construction adopted by it was the usual construction, omitting the strips on the floor-beams. This was shown by an ex-inspector of elevators of the city of St. Louis, one of whose duties was to exámine this freight elevator for a period of eight years, during which time he examined it four times a year, and every time issued- a certificate of indorsement; also by an employee of the Moon Elevator Company who had been in the business for seventeen or eighteen years.

As to the happening of the accident, the testimony on behalf of appellant tended to show that the respondent had been several times warned to be careful while using the elevator and not to indulge in play. The testimony on behalf of the appellant, also tended to show that at the time the respondent was injured he was “skylarking” and while so doing allowed his foot to project beyond the floor of the elevator. Appellant offered to show by Dr. Amyx that the respondent stated to him the day of the accident that he was kicking back against the wall of the inclosure of the elevator and that this was what caused his accident. This was objected to by the respondent on the ground that the communication was privileged. The objection was sustained and appellant saved exceptions. The testimony for appellant also tended to show that the construction suggested by respondent’s expert, to-wit, to have the twelve-inch beam extend out further, or the sill extend down the entire length of the beam, would not, in any way, be less dangerous than the construction adopted by appellant, or in any way obviate any of tbe dangers incident to tbe construction adopted by appellant.

The trial resulted in a verdict for three thousand dollars in favor of the respondent and against the appellant. The latter filed its motion for a new trial in due time, which was overruled, and it appealed.

I. At the close of respondent’s evidence the appellant moved for a peremptory nonsuit, which the court refused. This ruling is assigned as error. If the respondent’s evidence shows that the elevator furnished him was a reasonably safe place to work, or if the evidence is all one way that respondent himself was guilty of negligence that directly contributed to his injury, he should have been nonsuited.

Webb on Elevators, section 17, says: “Proper care in the construction of freight elevators does not require that they be wholly inclosed or sheathed, and this may be considered a general rule, although there may be exceptions,” citing Hoehmann v. Moss Engraving Co., 23 N. Y. Supp. 787. The same authority, at section 14, says: “In all cases except where the .failure to exercise care is in violation of some statute, or willful, or such reckless disregard for the personal safety of others as to amount to negligence per se, the questions of fact arising in the case and the estimate of prudence are for the jury to determine.”

Respondent offered some evidence tending to show that the accident was due to faulty construction, viz., that the strips nailed on the floor-beams were not properly constructed; that they should have been the full width of the beams and beveled from the upper to the lower edge to prevent the very sort of accident that happened to respondent. On this evidence, we think the issue, in respect to negligent construction, was a question for the jury to determine. [McGonigle v. Kane, 20 Colo. 292; Goodsell v. Taylor, 41 Minn. 207 (both elevator cases); Hunt v. Railroad, 14 Mo. App. 160; Young v. Webb City, 150 Mo. 333; State v. Peebles, 178 Mo. 475.]

Does respondent’s evidence conclusively convict him of contributory negligence? We do not think so. He was standing near the edge of the elevator, but not in a position to be caught between it and the strip on the floor-beam. He was a boy, who would not be expected to be on his guard at all times to avoid danger, was leaning on the shoulder of another boy, who, he says, stepped back on his foot, and to relieve his foot of the pressure, respondent stepped back and his heel was caught in the manner he described. A man, in respondent’s situation, would perhaps have noticed that the elevator was near a floor and have remembered the danger of having his foot caught should he throw it back, but whether a fourteen-year-old boy should so closely observe and exercise such a degree of prudence, we think was.a question for the jury; for the same standard of care required of an adult, in Rogers v. Meyerson Printing Co., 103 Mo. App. 683, was held not to apply to a boy of thirteen years, and not to apply to a boy of sixteen years in Campbell v. St. Louis & Suburban Ry. Co., 175 Mo. 161. It is the duty of employers of boys and girls of immature years not to expose them to such dangers as they are not likely to see, or, if seen, appreciate, on account of their indiscretion and want of care; and if they do and injury results to the minor, the employers cannot escape liability on the plea of contributory negligence, unless they can. show that the minor failed, after being warned of the danger, to use that care which persons of his age, capacity and intelligence are capable of and are expected to use in like circumstances. [Anderson v. Railroad, 81 Mo. App. 116; Coleman v. Land & Lumber Co., 105 Mo. App. 254; Anderson v. Railroad, 161 Mo. 411.] And whether or not the minor did use such care is almost always a question for the jury. This case does not furnish an' exception to this rule, and wé think the court was right in refusing to nonsuit the respondent.

II. The appellant assigns as error the giving of the following instructions for the respondent:

“1. The court instructs the jury that if they find from the evidence that the defendant occupied a building in the city of St. Louis in which it carried- on business as a manufacturer, and that in said building there was an elevator propelled by steam and maintained and operated by the defendant; that on the twenty-third day of June, 1902, plaintiff was in the employ of defendant, and was on said day riding upon said elevator in the discharge of his duties as such employee of defendant; that said plaintiff while so riding upon said elevator was injured by catching his left foot and ankle between the floor of said elevator and a certain sill or board which projected into the shaft of said elevator, up and down which said elevator was propelled; and if the jury further believe from the evidence that the extension of said sill or board into said elevator shaft made the same unsafe or dangerous, and that such dangerous condition was known to defendant at said time, or could, by the exercise of ordinary care have been known to it, and if the jury believe from the evidence that the defendant did not exercise ordinary care in maintaining said elevator in such condition, and if the jury further believe from the evidence that plaintiff was injured in consequence of said dangerous condition of said elevator and that, at the time of the injury, plaintiff was exercising such degree of care as an ordinarily prudent boy of the same age and experience would have exercised under the same or similar circumstances, then the jury will find for plaintiff.
“ 2. The court instructs the jury in this case that if they find from the evidence that the plaintiff was a minor of about the age of fifteen years, then he could not and did not assume any risk that might arise in his employment, if any there was, caused by the failure of the defendant to exercise ordinary care to provide a reasonably safe elevator shaft and appliances with which the plaintiff was to work in the discharge of the duties of his employment.
“5. If the jury find from the evidence that there existed in the elevator shaft at the third or fourth floor of the building mentioned in the evidence a certain projection into said shaft, and if the jury find from the evidence that said projection rendered the use and travel on said elevator hazardous, and if the jury find from the evidence that defendant provided said elevator and shaft for the plaintiff to ride upon in the discharge of the duties of his employment; and if the jury find from the evidence that the defendant did not exercise ordinary care in providing said elevator and shaft for the plaintiff to work with in the discharge of the duties of his employment; and if the jury find from the evidence that on the twenty-third day of June, 1902, the plaintiff in the discharge of the duties of his employment was on said elevator and whilst so on said elevator the plaintiff was pushed or shoved by one Harder and thereby was caused to step back, and in doing so got his foot caught between said projection and the floor of the elevator, and thereby sustained the injuries mentioned in the evidence; and if the jury further find from the evidence that said condition or projection in said shaft directly concurred with said Harder in causing plaintiff’s said injury; and if the jury find from the evidence that the plaintiff was exercising ordinary care at the time of his injuries, then he is entitled to recover.”

The objections to the respondent’s first instruction are disposed of by what is said in the foregoing paragraph of this opinion; likewise the objection to the second instruction, except the contention of appellant, that the respondent assumed whatever risk there was in riding on the elevator. This is the principal contention of appellant and is chiefly relied upon for a reversal of the judgment. It is contended that the evidence conclusively shows the case is one of assumed risk; and able counsel have industriously and ably collated and digested the cases in this court upon the subject. Their labor is lost in the circumstances of the case and in view of the unique doctrine established by our Supreme Court, that the servant assumes only such risks as are ordinarily incident to his employment, after the master has performed his whole duty to provide him a reasonably safe place to work and reasonably safe appliances with which to do his work; and holding, that if the master is negligent in furnishing his servant an unsafe place to work, or unsafe appliances with which to do the work, and the servant knows, or by the exercise of ordinary care could have known of the unsafe place or appliances, and yet continues in the master’s service, he does not thereby assume the risk occasioned by the negligence of the master; but if the place to work, if the appliances furnished, is obviously so dangerous that a reasonably prudent man would not attempt to use them, or they could not be used even-with caution, the servant will be guilty of such contributory negligence as to cut off his right of recovery. [Wendler v. People’s House Furnishing Co., 165 Mo. 527; Curtis v. McNair, 173 Mo. 270; Cole v. Railroad, 183 Mo. 81; Blundell v. Mfg. Co., 189 Mo. 552.] See also Stafford v. Adams, 113 Mo. App. 723-4, where Johnson, J., of the Kansas City Court of Appeals, has industriously collated the other Missouri cases in point.

In Blundell v. Mfg. Co., supra, at page 560, Judge Marshall, in respect to the doctrine of assumption of risk and contributory negligence, says: “There is a vast difference between the doctrines of assumption of risk and contributory negligence; the first rests in contract, and the second arises out of the negligence of the servant. The result to the person injured is the same in both cases, but the underlying principles are radically different, and should be carefully borne in mind in every case. The maxim, ‘volenti non fit injuña,’ cuts off a recovery where the injury is caused by one of the risks incident to the business which the servant assumes when he enters the employment. The right of recovery is cut off in the second case under the rule of law that prohibits a recovery where the negligence of the person injured contributes thereto.”

Under the law of the Supreme Court of the State, the respondent did not assume the risk arising from the negligent construction of the elevator, if it was negligently constructed, and hence instruction number 2 is not erroneous. [George v. Railroad, 225 Mo. 365.]

III. It is contended that respondent’s fifth instruction is erroneous for the reason Harder stepping on the respondent’s foot was the primary and proximate cause of the injury.

In Bassett v. City of St. Joseph, 53 Mo. 290, an excavation extending into the street was negligently left uncovered, and plaintiff (a female traveling on the street) through fear of being kicked by a mule, jumped to one side and into the excavation and was injured. It was held that the kicking of the mule, or the fright caused thereby, was not the sole cause of the injury and that plaintiff was entitled to recover, if she was in the exercise of ordinary care.

In Carterville v. Cook, 129 Ill. 152, plaintiff, a boy, while exercising ordinary care for his own safety, passing along a much-used public sidewalk of defendant, was by reason of the inadvertent or negligent shoving by one boy of another boy against him, jostled or pushed from the sidewalk at a point where it was elevated some six feet above the ground, and where it was unprotected by railing or other guard, and thereby severely injured in one of his limbs. It was ruled: “If a person, while observing due care for his personal safety, be injured by the combined result of an accident [as the inadvertent or careless act of another] and the negligence of a city or village, and the injury would not have been sustained but for such negligence [of the city or village], yet, although the accident [or wrongful act of the third person] be the primary cause of the injury, if it was one which common prudence and sagacity could not have forseen and provided against, the negligent city or village will be liable for the injury.”

In Newcomb v. Railroad, 169 Mo. 409, it was held: “A defendant is liable if his negligence concurred with that of another, . . . and became a part of the direct and proximate cause although not the sole cause of the injury.”

The instruction is in line with these authorities, and we think properly stated the law.

IY. Error is assigned in the refusal of the court to give the following instructions asked by appellant:

“33. The court instructs the jury that there is no evidence of any negligence in this case on the part of the defendant with reference to the construction of the elevator in question.
“C. The court instructs the jury that plaintiff in his petition alleged that the defendant was guilty of negligence in having a sill on the interior of the elevator shaft at the third floor of the building in question. And the court instructs the jury, with reference to the sill mentioned in the petition, that there is no evidence of any negligence on the part of the defendant in having such a sill on the third-floor.
“D. The court instructs the jury that if you believe from the evidence the plaintiff knew the way the elevator shaft in question was constructed, and knew that there was a projection of one and one-half inches into the elevator shaft at each floor, and knew this space at this projection was narrower than it was between the floors, and if you also believe from the evidence that the plaintiff knew there was no guard on the platform of the elevator, and also knew that if his foot was out beyond the platform of the elevator it would be caught by such projection, and that he understood and comprehended there was danger of this happening while and during all the time he was using the elevator, and you also believe from the evidence that having this knowledge and understanding (if you from the evidence believe he did have them) he of his own will continued in the employ of the defendant and continued to use the elevator in question, then he assumed the risk of being caught and injured by such projection.”

If we are right in our views of the case as stated in the foregoing paragraphs, the court properly refused these instructions.

Y. Error is assigned in the refusal of the court to permit Dr. Amyx to testify to a conversation had with the respondent in regard to his injury and how he happened to be injured. The doctor’s evidence shows that when respondent was injured, appellant sent him to the doctor’s office for treatment and the interview was had while respondent was in his care. In answer to the following question: “The subject of your interview and conversation with him was to ascertain his condition for the purpose of treating him,” the doctor said: “Yes, sir. And there were other motives there.” He further testified that he was acting as physician and surgeon for the appellant, and that the remarks made by the respondent were not made in answer to any questions asked in order to properly treat him.

Section 4659, Revised Statutes 1899, provides: “The following persons shall be incompetent to testify, . . . fifth, a physician or surgeon, concerning any information which he may have acquired from any patient while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.” The fact that Dr. Amyx examined respondent at the instance and request of appellant for the purpose of treating him did not remove his incompetency. [Weitz v. Railroad, 53 Mo. App. 39.] The doctor’s testimony showed that he had a double purpose in holding the interview with respondent : first, to ascertain his condition for the purpose of treating him professionally; and, second, to ply the boy with questions, while he was suffering from shock and severe pain as a result of the recent injury, for the purpose of getting some statement or admission from him that would be advantageous to his (Amyx’s) employer, the appellant, in case the boy should sue to recover compensation for his injuries. In these circumstances we are not inclined to split the interview into parts and determine what parts were and were not necessary to enable the doctor to prescribe for the respondent, but to hold him incompetent to testify to any part of the interview; besides, the evidence of the doctor,' as offered, was but cumulative and there is no probability that it would have changed the result if it had been admitted. [Smart v. Kansas City, 208 Mo. 162.]

VI. George W. Caldwell, an expert witness for respondent, was permitted to testify, over the objection of the appellant, that the strips nailed on the floor-beams were unnecessary; that “they formed a cage that would catch anything that might get in their way;” that he never erected an elevator or allowed anything like said strips, and it was not the ordinary method of furnishing the well-hole of an elevator, and if put on should extend to the bottom of the floor-beams. It is contended that this was not a proper subject of expert testimony; that the only proper expert testimony in this connection was to show whether this was the usual construction, and that the question as to whether or not it was necessary was entirely immaterial.

In Lee v. Knapp & Co., 55 Mo. App. l. c. 406, in speaking of the construction of an elevator, this court said: “Mere usage by others is not the sole criterion. It is the duty of owners of elevators to make them reasonably safe for the uses to which they are to- be put; and, in so doing, they should exercise that degree of care employed by reasonably prudent men in attaining the same end.”

The witness testified that elevators were not usually constructed as was this one, that strips were not common on elevators in the city of St. Louis. We can see no valid objection to the testimony.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    LEANDER F. HAYES et al., Appellants, v. MATILDA SCHALL et al.
    Division One,
    June 14, 1910.
    1. LIMITATIONS: Mortgagee: Out of Possession. While the Statute of Limitations does not begin to run against a mortgagee’s right to foreclose when he is in possession, and holding possession for the purpose of collecting his debt, yet that rule has no application to a mortgagee who is not in possession, or who having taken possession abandons it.
    2. -: -: -: Presumption: Indorser. Where both mortgagor and mortgagee are dead, it will be presumed that it was pursuant to the mortgagee’s right as such that he went into possession, that is, for the purpose of collecting the mortgage debt; but no such presumption can be indulged where the mortgagee, after having taken possession, abandoned it— and especially where the mortgage was not given to secure a debt due the mortgagee, but to Indemnify him against a contingent liability for his indorsement, and there is no evidence that he was ever compelled to pay the debt or had ever acquired the right to foreclose the mortgage.
    3. -: -: -: Abandoned: Subsequent Possession: Married Women. Wnere the mortgagee took possession and abandoned it in five years, and neither he nor those who claim under him again took possession until after the mortgagor’s only heirs, who were female grandchildren, were married, a continuous possession by them since, though for more than ten years, does not bar the right of such heirs to the property.
    4. MORTGAGE: Payment by Heirs. As against those who claim under the mortgagee, who for five years was in possession and then abandoned the property, the heirs of the mortgagor, brought into court as defendants in a suit to quiet title, are under no obligation to pay the outlawed mortgage as the price of a judgment in their favor.
    5. LACHES. Defendants in a suit to quiet title, who ask for no equitable relief, but stand strictly on their legal title, are not barred by laches.
    5. LEGAL MATTERS IN EQUITY. When a purely legal title is drawn into an equity case, it is decided according to the rules of law. In such case equity follows the law.
    Appeal from Buchanan Circuit Court. — Hon. C. A. ' Mosman, Judge.
    Afitbmed.

      Spencer & Landis for appellants.
    (1) After condition is broken and possession is taken by a mortgagee, the mortgagor cannot maintain ejectment against the mortgagee or Ms assigns, unless the mortgage debt is first paid, so as to cancel the mortgage. Pease v. Iron Co., 49 Mo. 128 ; Johnson v. Houston, 47 Mo. 227. Nor can he obtain relief in a court of equity. Kline v. Vogel, 90 Mo. 239. (2) A court of equity may refuse to grant relief against laches short of the statutory bar, when it would be inequitable. Kline v. Vogel, 90 Mo. 247; Kroening v. Goehri, 112 Mo. 618. And this rule applies to married women. Real Est. Co. v. Lindell, 112 Mo. 61. (3) An. heir’s interest in the equity of redemption is subject to the debts of the ancestor, and before there can be a recovery the heir must pay the debt. Ailey v. Burnett, 131 Mo. 316; Kline v. Vogel, 90 Mr. 236. (1) The fact that a mortgagee or his assigns are in possession of the property is prima-facie evidence that the indebtedness has not been paid. 20 Am. and Eng. Ency. Law, 1005; Den v. Wright, 7 N. J. L. 178; Olmstead v. Elder, 2 Sanf. (N. V.) 325. A mortgagee in possession may stay till the debt is fully paid. 13 Am. and Eng. Ency. Law, 798; Fountain v. Bookstaver, 111 111. 161. (5) The right to redeem expires with the right to- foreclose a mortgage. Long v. Long, 111 Mo. 16; Jones on Mortgages (5 Ed.), sec. 1116. And this rule applies to married women. Jones on Mortgages (5 Ed.), see. 1150. (6) To entitle a mortgagor or his heirs to the benefit of a disability it must be one that existed at the time the right to redeem first accrued, and the right to redeem first accrued at the time the mortgagee took possession under the mortgage after condition broken, which was about 1873. The marital disabilities of defendants did not exist at that time. Jones on Mortgages, secs. 1151-2; Hall v. Hooper, 17 Neb. Ill; Hub-bell v. Sibley, 50' N. Y. 168; Bennett v. Comant, 61 Mass. 163. (7) This proceeding to quiet title, though statutory, is of an equitable nature, intending to supplement the old equitable remedy of removing a cloud from the title. Ball v. Woolfolk, 175 Mo. 285; Garrison v. Frazier, 165 Mo. 65; Huff v. Land Co., 157 Mo. 65; Stone v. Perkins, 117 S. W. 720. A mortgagee in possession is entitled to a decree quieting title. Frizzle v. Dearth, 28 Vt. 787. (8) A suit to quiet title may be in the nature of an equitable action. Lee v. Conran, 213 Mo. Ill; Hudson v. Wright, 201 Mo. 123.'

      E. E. White for respondents.
    (1) The elements of adverse possession are well settled in this State, and the possession by Mentzel under his mortgage lacked several of the elements of adverse possession, (a) It was not shown to be hostile, but the finding of the court is that it was consistent with the mortgagor’s title and interest. 1 Am. and Eng. Ency. Law (3 Ed.), 795; Swope v. Ward, .185 Mo. 324; Hunnewell v. Burchett, 152 Mo. 614; Cockrell v. Stafford, 102 Mo. 69; Munroe v. Barton, 49 Atl. 1069; Horst v. Boyd, 3 San. Ch. (N. Y.) 554; Averett v. Sanford, 36 Conn. 345.. (b) The finding of the court was that the possession which Mentzel took was presumably with the consent of Fetzner, the mortgagor. There was no evidence or finding that Mlentzel’s possession ever changed from a possession consistent with that of Fetzner’s title to a hostile possession, and the intention to change a friendly or subordinate possession must be made known distinctly to the true owner. Tyler on Ejectment, p. 887; Hunnewell v. Adams, 153 Mo. 440; Budd v. Collins, 69 Mo. 129; Hamilton v. Boggess, 63 Mo. 249; Gordon v. Eans, 97 Mo. 603; Quinn v. Quinn, 27 Wis. 230: (c) The possession was not continuous for the requisite length of time, even if the original possession taken had been adverse. Bollinger v. Chouteau, 20 Mo. 89; Lumber Company v. Rogers, 145' Mo. 445; Harrison v. Chacelin, 35 Mo. 77; Lynn v. Williams, 68 Mo. 369; Brown v. Hartford, 173 Mo. 191; Goltermann v. Schiermeyer, 125 Mo. 302; Humphrey v. Hurd, 29 Mich. 44; St. Louis v. Priest, 103 Mo. 652. (2) The entry made by appellants, in 1889, was made after the respondents became married women, and as no suit was brought to enforce the mortgage it became outlawed in 1892. R. S. 1899, secs. 4276-7; Lindell v. Lindell, 142 Mo. 81; Maim v. Balfour, 187 Mo. 309.
   VALLIANT, J.

— This is a suit to quiet title, under section 650, Revised Statutes 189-9. The land called for in the petition is- the. south half of lots 21, 22, 23 and 24, block 4, in St. Joseph Eastern Extension Addition.

Benjamin Fetzner is the common source of title. March 1, 1872, Fetzner executed a mortgage whereby he conveyed the lots in question to Louis Mentzel to secure him against his liability as indorser on two notes, one for $2000 due 90 days after March 1, 1872, the other for $600 due 90 days -after February 20, 1872, both bearing interest after maturity at ten per cent. Plaintiffs claim that at or about the maturity of the notes, Mentzel went into possession of the property under some agreement with Fetzner, the nature of which cannot now be known because both men are dead, and that Mentzel and those claiming under him have been in adverse possession ever since and have made valuable improvements thereon. Plaintiffs by mesne conveyances hold whatever title Mentzel and his successors acquired in that way. So far as the record shows there has been no foreclosure of the mortgage and no redemption; the record shows nothing on that subject.

The defendants, Matilda Schall and Josephine Young, are the heirs at law of Benjamin Fetzner, deceased, who was their grandfather, and each claims title of one-third by descent.

Plaintiffs’ theory is that a mortgagee has a right to possession after condition broken, and if, acting on that right, he takes possession, time never runs against his right to hold possession as against the mortgagor who can recover possession only on payment of the mortgage; that when time bars the right to foreclose, the right to redeem is -also barred and the mortgagee’s title becomes absolute. Plaintiffs also contend that the possession of Mentzel began in 1874 and continued in him during the lifetime of Fetzner who died in 1881, and thence in Mentzel and his assigns down to the date of the institution of this suit in 1906.

As against the plaintiffs’ claim of title under the Statute of Limitations, the defendants, Mrs. Schall and Mrs. Young, assert that Mentzel’s possession ended in 1879 and that he or those claiming under him did not take possession again until 1889, at which time the defendants were both married women and have remained so ever since.

This suit concerns the title to the south half of the lots mentioned; there was another suit of like nature filed at the same time by another plaintiff, A. A. Mc-Ininch, against the same defendants to quiet the title to the north half of these lots; the plaintiff in that suit claims title under Mentzel in the same way that the plaintiffs in this suit claim title, and the defendants, who are the same in both suits, claim as heirs of their grandfather Fetzner, and their defense in the Melninch suit is the same as in this. By agreement the two suits were tried by the court at the same time and on the same evidence and in like manner are submitted together here.

There are four lots mentioned in the pleadings, 21, 22, 23 and 24, but it appeared in evidence that lots 21 and 22 had been sold under a foreclosure sale under another mortgage (or deed of trust) given by Fetzner, and the title to those two lots under that foreclosure sale having been acquired by the plaintiffs, the finding and decree of the court as to those two lots were in their favor and there is no appeal from that part of the decree. As to the other two lots, 23 and 24, the decree was in favor of the defendants, Mrs. Schall and Mrs. Young, and the plaintiffs appealed. One Charles Klaubus is named in the petition as a defendant and he was brought in by an order of publication, but he did not appear and the decree is that he has no interest in the land; his one-third, if he had such, is decreed to the plaintiffs. We infer that there were three heirs to Fetzner, namely, Klaubus, Mrs. Schall and Mrs. Young. The adverse possession of plaintiffs since 1889 would bar the right of Klaubus, who was not under any disability, and that probably accounts for his non-appearance in the case.

The court was requested to make a finding of the facts and did so. The material facts found by the court are as follows:

Benjamin Fetzner was the owner of the property. On March 1, 1872, Fetzner and wife executed the mortgage already mentioned; at that, time the lots were inclosed by a fence and there were a few fruit trees on them, but no other improvements. In March, 1874, Mentzel acquired title under a foreclosure sale under a deed of trust executed by Fetzner to certain other property on which were situated a residence and a soap factory just across the street from the lots in question; he took possession of the property he so acquired and about the same time took possession also of the four lots mentioned in these pleadings, using these lots for pasturage purposes; he and his tenants remained in possession of these lots not exceeding five years. In the later years of the occupancy of these lots by Mentzel and his tenants the fence began to decay and continued to do so, so that in 1879 it had entirely disappeared, and from that time there was no visible evidence of ownership or occupancy of these lots until 1889.

Mentzel died in 1876; Fetzner died in 1881. In 1878 the children and heirs of Mentzel instituted a suit for partition of his real estate and included in their petition the lots in controversy in this suit. In that proceeding those lots were set apart to Mrs. Corn-well, one of the heirs of Mentzel. Fetzner was not a party to that suit nor were these defendants. The plaintiffs now hold whatever title Mrs'. Cornwell acquired by that suit. In 1889 the plaintiffs and those under whom they claim took possession of the lots in question and erected thereon four cottages, two on the north half, which is the part claimed by Mclninch, the plaintiff in the other suit, and two on the south half, which is the part claimed by Hayes, the plaintiff in this suit, and have held adverse possession ever since. Defendants did not know of the erection of those improvements until after they were completed. The defendant Mirs. Sehall was married in 1883, and her sister Mrs. Young in 1885, and have been so ever since. The court’s conclusion of the law was that the instrument under which Mentzel went into possession was a mortgage, and that the two defendants, Mrs. Sehall and Mrs. Young, were each entitled to one-third of lots 23 and 24, but that they had no right to any of the improvements. The plaintiffs excepted to the findings of facts and conclusions of law. The decree of the court was in accordance with those findings and conclusions and from that decree the plaintiffs appealed.

All the findings of facts were clearly sustained by the evidence. Prom 1879 to 1889 there was no actual possession of these lots. In so far, therefore, as the plaintiffs’ claim rests on the Statute of Limitations, it must begin with the possession which they took in the early part of 1889, at which time Mrs. -Sehall and Mrs. Young were married women.

The plaintiffs’ contention that after condition broken the mortgagee is entitled to possession and when he takes possession he may hold it until the debt is paid, is conceded, and it is so held in the following cases cited by appellants: Johnson v. Houston, 47 Mo. 227; Pease v. Pilot Knob Iron Co., 49 Mo. 124; Ailey v. Burnett, 134 Mo. 316. In those cases there was no question of the Statute of Limitations; but appellants ’ further contention that the Statute of Limitations does not begin to run against a mortgagee’s right to foreclose when he is in possession, may, for sake of the argument, be also conceded, as held in oases cited by appellant. In Fountain v. Bookstaver, 141 Ill. 461, l. c. 468, the court said that the mortgagee by taking possession was pursuing one of the recognized modes under the law for the collection of the mortgage debt, and while thus proceeding, to collect the debt in a lawful manner the Statute of Limitations did not run. And so it was said in Den v. Wright, 7 N. J. L. 175, l. c. 178; see also 13 Am. & Eng. Ency. Law (2 Ed.), page 798. But what is said in those cases is said concerning a mortgagee who is in possession and holding possession for the purpose of collecting his debt; it has no application to one who is net in possession or who having taken possession abandons it. In 20 Am. & Eng. Ency. Law (2 Ed.), p. 1008, it is said: “A mortgagee lawfully in possession of mortgaged premises may abandon or surrender the possession, or, what is the same thing, acquiesce in the possession of the mortgagor or his successors, thereby indicating his surrender of the pledge. ’ ’ That is just what Mentzel did in this case; after he became the owner of the property on the other side of the street he took possession of these lots and held them in a rather loose way for a while and then abandoned them. The only use he or his tenant ever made of them was for a pasture, and the evidence was to the effect that the fence began to fall to pieces as early as 1875 or 1876 and had entirely disappeared in 1879. Appellants say that because both men are dead no one knows what the agreement or understanding between them was under which the possession was taken, therefore the presumption must be indulged that it was pursuant to Mentzel’s right as mortgagee, and that is so; but what presumption must be indulged as to why' the possession was abandoned? We must remember that this mortgage was not to secure a debt that Fetzner owed Mentzel, but to indemnify him against his contingent liability for his indorsement. There was no evidence tending to show that he had ever been compelled to pay the debt or had ever acquired the right to foreclose the mortgage. The fact that he is presumed to have taken possession for the only purpose that the law gave him the right to take possession, that is, to collect the mortgage debt, naturally leads to the presumption that when he abandoned the possession he abandoned the purpose of trying to collect the debt in that way. Mentzel never acquired any record title except that of mortgagee, and neither he nor those who claim under him ever held possession long enough to prevent the Statute of Limitations from barring his right to foreclose the mortgage.

Plaintiffs cite authorities to maintain their proposition that when the right to foreclose is barred the right to redeem is also extinguished'. That is a mere abstract proposition in this case, because no one is here seeking to foreclose and no one is seeking to redeem. If Mentzel and those claiming under him had held continuous possession from 1874 until the mortgagor’s right to redeem had become barred by the Statute of Limitations we would have a different case to consider. Although Mentzel’s possession began in the lifetime of defendant’s grandfather, yet it ended also during his lifetime, and therefore the theory that the Statute of Limitations having begun to run in his lifetime ■ continues to run against his heirs, notwithstanding their disability, has no application here.

Plaintiffs acquired no right as against these defendants by the possession begun in 1874 which ended in 1879, and the time that has elapsed since they took possession in 1889 does not impair the rights of the two married women.

Plaintiffs invoke the maxim that one who seeks equity must do equity, therefore defendants cannot have a judgment in their favor until they redeem the mortgage. But that maxim has no application here. These defendants have not come into court asking equitable relief, they have not come into court at all voluntarily, but have been brought in by the process sued out by the plaintiffs and have been required to say what title if any they have to the property, and in answer thereto have only said that each of them has a legal title to one-third thereof which she inherited from her grandfather.

Plaintiffs also say that the defendants are so guilty of laches that a court of equity will not grant them equitable relief; but the fact is they are not asking any equitable relief, they are standing strictly on their legal title and asking only what the cold law gives them.

Whether the statutory proceeding under section 650, Revised Statutes 1899, is a suit in equity, as plaintiffs insist, or an action at law, makes no difference in this case in so far as the defendants’ rights are concerned, because when a purely legal title is drawn into an equity case it is decided according to the rules of law. In such case equity follows the law.

As to the improvements put on the property in 1889, the evidence shows, and the court so found, that these defendants knew nothing of them until they were finished. Besides the decree of the court is that the defendants have no right to the improvements.

The trial court took the correct view of the case. The judgment is affirmed.

All concur.


author: YALLIANT, J.

text:
    AMOS A. McININCH, Appellant, v. MATILDA SCHALL et al.
    Division One,
    June 14, 1910.
    Appeal from Buchanan Circuit Court. — Hon. G. A. Mosmcm, Judge.
    Affirmed.
   YALLIANT, J.

— The facts in this case are like those in the case of L. F. Hayes et al. v. Matilda Schall et al., just decided, and reported at page 114. Por the reasons given in the opinion in that case the judgment in this is affirmed.

All concur.