author: LAMM, J.

text:
    JAMES F. GREEN v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant.
    Division One,
    April 1, 1908.
    1. NEW TRIAL: Other Reasons. If there he good reasons appearing on the record for granting a new trial, other than that assigned hy the trial court, the order granting it will he upheld.
    2. -: -: Erroneous Instructions. Instructions given for respondent, even if erroneous, unless the record shows that appellant objected and excepted to the giving of them, are not a ground for a new trial or for sustaining the order granting it. But in this case, the instructions are not erroneous.
    3. -: -: Misbehavior of Jurors. Affidavits of jurors, impeaching their conduct and showing them guilty of misbehavior, are not sufficient to sustain a new trial. The verdict cannot be impeached by the jurors themselves.
    4. -: -: -: Affidavit of Plaintiff. Affidavits of plaintiff and his counsel, to the effect that one of the jurors, told his fellow jurymen that he had visited the place where plaintiff was injured during an adjournment, and described to them what he saw, and that thereupon some of the jurors shifted from plaintiff to defendant, without íevealing from whom the information was obtained that he had so done, do not authorize the granting of a new trial.
    5. PHYSICIAN: Admission of Patient. An admission of plaintiff to a staff of hospital physicians and surgeons, to which he had been taken after his injury by defendant’s cars, and where his arm was amputated, is not inadmissible, if it related to matters information of which was not necessary to enable them to treat him. In this case such physicians were permitted to testify that plaintiff stated to them: “I wanted to have a passage and I went in between the cars, sat down and the cars backed up on me.” They further testified that the hospital was maintained by defendant, and that they were not trying to. learn the story of the case as to the injury for the purpose of treatment, that the course of treatment had already been determined upon,'and that the statement of plaintiff, whose arm was crushed by the wheel of the hacking car, did not affect the course of the treatment, and it is conceded on both sides that the statement was admitted to prove plaintiff’s position at the time he was injured, that is, that he was behind stationary cars and could not be seen hy the trainmen. Held, that it was. competent for the physicians to detail this admission, and the trial court erred in granting plaintiff a new trial on the ground that it had been erroneously admitted.

      6. EVIDENCE: Objections: No Exceptions Saved in Record. Although the trial court has an established rule, known by all the attorneys, that where an objection is made to evidence an adverse ruling thereon is to be considered as also' excepted to, yet it is necessary that the record on appeal show that such exceptions were saved at the time. But in this case, where plaintiff made specific objections, and the court nevertheless admitted the evidence but afterwards granted him a new trial on the ground that such evidence was erroneously admitted, and defendant appeals from that order, the rule is relaxed on the theory that the trial court presumably saw the exceptions in his mind’s eye, and in order that the matter may be considered on its merits.
    Appeal from St. Louis City Circuit Court. — Boot. Daniel G. Taylor, Judge.
    Beversed and remanded {with directions).

      J. E. McKeighan and Wm. B. Gentry for appellant.
    (1) The ruling of the court, in sustaining plaintiff’s motion for a new trial, on the ground that the court had committed error in the admission of the testimony of physicians, inasmuch as the court concluded that their testimony was privileged, was erroneous. The .communication testified to was not privileged. Brown v. Bailroad, 45 Hun 439; People ex rel. v. Abrahams, 96 App. Div. 27; People v. Cole, 113 Mich. 83; Collins v. Mack, 31 Ark. 684; State v. Kennedy, 177 Mo. 129; James v. Kansas City, 85 Mo. App. 24; Linz v. Ins. Co., 8 Mo. App. 363; State v. Spaugh, 200 Mo. 571; Hamilton v. Crow, 175 Mo. 634; Holloway v. Kansas City, 184 Mo. 19; Murphy v. Comrs., 83 Pac. 577; Pearson v. People, 79 N. Y. 432; Bailroad v. Yates, 67 Ala. 167; Binz v. Dow, 113 Cal. 490; Stone v. Minter, 111 G-a. 45; Denser v. Hamilton, 52 Mo. App. 394; Denser v. Walker, 43 Mo. App. 625; Weinstein v. Beed, 25 Mo. App. 49; Campan v. North, 39 Mich. 606; Green v. Bailroad, 171 N. Y. 201; People v. Koerner, 154 N. Y. 355; Benjamin v. Village of Upper Lake, 110 App. Div. 428; Railroad v. Murray, 55 Kan. 336; 3 Jones on Ev., sec. 778; 4 Wigmore on Ev., p. 3351. (2) The motion for a new trial ought not to have been sustained, even if the communication to the physicians was improperly admitted in evidence. The plaintiff having had the case submitted to the jury, had already received more consideration at the hands of the court than he was entitled to, since his own testimony showed that he was guilty of contributory negligence which was the proximate cause of his injury. Zumault v. Railroads, 175' Mo. 288; Burde v. Railroad, 100' S. W. 509; Harper v. Railroad, 187 Mo. 575. (3) The motion for a new trial ought not to have been sustained, even if the court should hold that the plaintiff was entitled to’ have the case submitted to the jury. It is apparent, even from the cold print in the record of this case, that the verdict was for the right party, and that, on the plaintiff’s own testimony, no jury would be justified in believing his version of the case.

      8. P. Bond for respondent.
    (1) The court was right in granting plaintiff a new trial, as it was error to allow the assistant physicians and surgeons to testify when called by the defendant concerning any information which they may have acquired from the plaintiff while attending him in a professional character on the day of his injuries over and against plaintiff’s objection made and saved at the trial, because anything they learned was a privileged communication between plaintiff and his physicians. G-artside v. Ins. Co., 76 Mo. 452; G-roll v. Tower, 85 Mo. 255; Carrington v. St. Louis, 89' Mo. 216; Thompson v. Ish, 99 Mo. 174; Morton v. Moberly, 18 Mo. App. 459; Streeter v. Breckenridge, 23 Mo. App. 252; Corbett v. Railroad, 26 Mo. App. 626; King v. Kansas City, 27 Mo. App. 247; Weitz v. Railroad, 33 Mo. App. 44; Evans v. Trenton, 112 Mo. 404; Mellor v. Railroad, 105 Mo. 460; Howarth v. Railroad, 94 Mo. App. 225; State v. Kennedy, 177 Mo. 127; James v. Kansas City, 85 Mo. App. 23; Glasgow v. Railroad, 191 Mo. 358; Frief v. Railroad, 97 Cal. 47; Raymond v. Railroad, 65 Iowa 154; Halloway v. Kansas City, 184 Mo. 19. (2) The court did, not err in submitting the'case to the jury under the testimony and law of the case, because where there is a reason to apprehend that the track may not be clear, the persons in charge of a railroad train can not act on the presumption that the track is clear without the company being responsible for the consequences, and this is true notwithstanding the person is a trespasser and the company’s right to have a clear track. However, plaintiff was not a trespasser in defendant’s yards. Chamberlain v. Railroad, 133 Mo. 603; Tearson v. Railroad, 79 S. W. 400,- Morgan v. Railroad, 159 Mo. 282; Klockenbrink v. Railroad, 172 Mo. 688; Dunkman v. Railroad, 95 Mo. 244; Merz v. Railroad, 88 Mo. 673; Kelley v. Railroad, 104 Mo. 389; Bunyan v. Railroad, 127 Mo. 12; Czezewzka v. Railroad, 121 Mo. 201. (a) The court erred in giving the defendant’s first instruction marked “A,” because where the answer alleges a specific act of negligence on the part of the plaintiff as the ground of defendant’s defense, there can be no defense for another act not pleaded in its answer. Chitty v. Railroad, 148 Mo. 73; Crawford v. Aultman & Co., 139 Mo. 271. (b) And the court further erred in giving defendant’s second instruction marked “B,” because it is in conflict with plaintiff’s second and third instructions, which correctly declare the law. (3) It was irregular and unlawful for the juror to visit the scene of the accident. Daud v. Guthrie, 13 111. App. 659; Stampopski v. Steffins, 79 111.' 303; State v. Berlin, 24 La. Ann. 46; State v. Sanders, 68 Mo. 206; Eastwood v. People, 3 Park. Crina. Rep. 54; State v. Lopez, 15 Nev. 407.
   LAMM, J.

— Plaintiff sued for the loss of his left arm, grounding his right of action on the alleged negligence of defendant, and putting his damages at $20,000. The cause was tried with the aid of a jury. A verdict going for defendant, plaintiff filed his motion for a new trial, and from an order granting one defendant appeals.

The following ordinance was in force in the city of St. Louis at the times in hand:

“It shall not he lawful within the limits of the city of St. Louis for any car, cars or locomotive propelled by steam power to obstruct any street crossing by standing thereon longer than five minutes, and when moving the bell of the engine shall be constantly sounded within said limits, and if' any freight car, cars or locomotive propelled by steam power be backing within said limits, a man shall be stationed on top of the car at the end of the train fartherest from the engine, to give danger signals, and no freight train shall at any time be moved within the city limits unless it be well manned with experienced brakemen at their posts, who shall be SO' stationed as to see the danger signals and hear the signals from the engine. The steam whistles of danger shall in no case be sounded except in giving the usual signals for running trains.”

The cause of action is predicated of violations of certain provisions of the foregoing ordinance, viz., (1) in regard to sounding a bell, (2) in regard to- stationing a man on a backing train on top of the car at the end farthest from the engine and (3) in regard to the train being well-manned with experienced brakemen.

The petition alleges that on the 29th day of July 1904, while plaintiff was “along, upon and near” defendant’s railroad tracks in its yards between Tenth and Twelfth streets in the city of St. Louis, at a point where defendant’s tracks are frequented and used by many pedestrians at all times of the day, he was run over and hurt by a freight train “being shunted or backed and propelled by a locomotive engine belonging to defendant.” That an amputation of his arm resulted from the injury so received. That such injury was directly caused by the carelessness and negligence of defendant’s ag'ents and servants in charge of said locomotive and train of cars to keep a proper lookout for persons upon or near said tracks when by so doing they could have prevented said freight train from running over plaintiff. The ordinance aforesaid is pleaded and sufficient allegations are made relating to a negligent omission to obey it, in the particulars aforesaid, and it is averred that each and all of said omissions directly contributed to plaintiff’s injury.

The causé was tried on an amended answer, coupling a general denial to' an affirmative plea of contributory negligence, to the effect that plaintiff went into defendant’s yards and negligently placed himself so near one of the defendant’s tracks that there was not sufficient room for a train to pass over such track without striking his person. That plaintiff negligently continued to occupy such position and failed to exercise ordinary care to look and listen for the approach of trains and engines or to get out of the wav of them.

The reply was conventional.

The evidence tended to show as follows :

The scene of the accident was defendant’s switching yards between Tenth and Eleventh streets in the city of St. Louis. There was a cluster of tracks there used by defendant in shifting and switching ears to be cut out of and made into trains, and to unload and load them. This use was constant, the yards were a place of great activity and danger and it might be expected that cars would be moved every few minutes. Only one of said tracks concerns us, and that is a single track running east and west between two raised platforms — both used for freight purposes. These platforms were at such a height above the ground that the tops of them were even with the floor of freight cars and were open underneath. The evidence varies somewhat on their height. Some of the witnesses for plaintiff, estimating, put it at from two and one-half to three and one-half feet. The actual measurement by defendant’s engineer showed the height to be from four feet to four feet and four inches. The north platform ran along the rear of a freight house, was used in connection with it and (as we understand it) this freight house fronted on Poplar street. The time of the accident was between six and seven o’clock of the morning of July 29, 1904. It was hours after broad daylight — a bright, dry morning. Looking east from the east end of either platform on that morning, the track in question was unobstructed for 600 feet. Looking west the track was obstructed by a string of freight cars standing between the platforms. The most eastern one of these cars was quite a distance west of the east ends of the platforms, thus leaving a space between them toward the east unoccupied. When cars stand in this space it was so fully occupied that, say, only 20 inches 'were left free between the sides of the cars and the edges of the platforms. It appears that a man squatted outside of either rail would have difficulty in wedging himself between the car and the adjacent platform. The following diagram will aid the description of the locus in quo. It was put in evidence, shows a freight car located' on the track between the two platforms, is drawn to a scale and shows the distance from the rail to the platform, the distance of the body of a ear to the edge of the platform, and the height of the platform itself.

It was shown that a man could- get under these platforms and sit on his hams, although ashes and •other debris were there, and it was not a wholesome •or inviting spot. A man in a squatting position along the southern platform close to the track could see south under the platform and across defendant’s yards. Plaintiff was in a squatted position, and, as tending to show his height when in that position as •compared to that of the platform, the following questions asked him by his counsel and answers made are in point:

“Q. You were in that three feet space? A. Yes, sir.

“Q. Which way were you facing? A. I was facing south.

“Q. In other words, you were facing in under the platform, were you? A. Facing just as I am looking now, the platform and this table in the exact position right here (illustrating).

“Q. Looking under the platform? A. Looking under the platform, yes.

“Q. Was the platform enclosed the other side •or could you see ? A. I could see, could see through.

“Q. Could see all the way across the yards from the position you were in? A. Yes, sir.” ‘

Plaintiff was a laborer and was a member of a working force employed by defendant in East St. Louis. This force was carried to its work on a work-train starting from somewhere near the place of the accident each morning. Plaintiff had been in defendant’s employ for less than a month and on the morning in question came to the rendezvous of his companions at the south side of the south platform. There receiving a- call. of nature, he left his companions seated on a pile of ties or lumber and walked east and then around the east end of the south platform, then west along the north side of the south platform a certain distance and, sitting with his face to the south platform, remained squat on his hams .for two; three or four minutes with his clothes disarrangéd. West of him (according to his testimony) was the standing string of freight cars a few feet away.. East of him were 600 feet of unobstructed track. To his back was the track and the freight house platform. He says he did not get under the platform, nor was he concealed between the platform and the standing cars or between any two of said cars, but squatted in the open between the rails of the track or between the south rail of the track and the south platform. He seems to have anticipated no danger from the west, but did from the east. Accordingly he looked east before and after he sat down to assure himself. He put in testimony from certain of his co-laborers tending to corroborate his statement that he was in the open space east of the string of standing cars, and, while in the position described, a train of ears backed in from the east very slowly — slower than a man would walk — without ringing a bell, with no brakeman on the car farthest from the engine or otherwise. manning the train, and ran him down, throwing him under the west car of the backing train between the rails, and ground oft his left arm under a car wheel.

On the other hand, defendant introduced testimony of great weight and reasonableness tending to show that plaintiff was nowhere in sight. That he went in between the standing cars and the platform, ■or between two of the standing cars, so that he could not be seen, and there was caught by the backing train bumping against the dead ears. It was shown that blood was found on the wheel of one of three standing cars, no other blood was found on any other wheel; that the switching crew were walking along the backing train in a situation to give proper signals to each other and the engineer and see plaintiff if in the open; that one of the crew walked in advance of the train and so stationed himself that he conld attend to coupling the train to the standing cars when the impact came; and that plaintiff was not in sight though the switchman was within a few feet of where plaintiff puts himself. It was shown that the cars did not couple by the first impact and the standing cars were thus bumped west aways, and then for the first time plaintiff was heard screaming to the west where the standing cars were.

Plaintiff made a written statement to defendant’s claim agent shortly after the accident. This statement, was identified by the claim agent who testified it was made voluntarily and understandingly and signed by plaintiff. It was then put in evidence, describing the events leading up to the injury and plaintiff’s location at the time precisely as indicated by defendant’s-testimony. Plaintiff, however, testified that he knew nothing about this statement and was not in a condition to know anything about it at the time it was made and signed. It was in evidence that a train of cars moving at the rate of this train and on a track in the condition of this track could be stopped in a-very few feet. Plaintiff in rebuttal introduced testimony in contradiction to that of defendant’s switching crew as to- their respective situations with the backing train and their positions at the time of the accident.

There was scanty evidence that persons (chiefly employees of defendant) used'the track in question as a passway between the platforms. There was no testimony that it was in general use by the public as a, passway and no testimony that it was or could be so used when occupied by freight cars, as it was at the time of plaintiff’s injury. The testimony is the other way. Two or three of plaintiff’s witnesses had used the track between these platforms once or oftener for the same humble purpose plaintiff was using it when hurt, and possibly another witness for plaintiff had seen it used that way a time or two, but there was no ■evidence that this portion of defendant’s track was ■generally used as a privy to the knowledge of defendant’s officers and servants in charge of its tracks and switching yard.

Plaintiff was taken to St. Mary’s Hospital and there received surgical attention. At that time he made a statement to the attending surgeons to the effect that: “I wanted to have a passage and I went in between the cars, sat down and the cars backed up on me.” Defendant, over the objection of plaintiff, was allowed to prove this statement by 'the attending surgeons. Plaintiff’s counsel excepted to this evidence and claimed error on this ruling in his motion for a new trial, and the trial court was of opinion that error was committed in that behalf, and on that account set the verdict aside.

Any other facts necessary to the determination of the case will appear in the opinion.

I. Attending to the one reason assigned, nisi, for granting a new trial, plaintiff’s learned counsel invokes the doctrine that even if we should hold there was no error in admitting the surgeon’s testimony in the foregoing particular, yet, if there be other good reasons appearing on the record, the order granting one should be affirmed. This is so. Courts are organized to get practical and just results in the administration of law; therefore, if the right thing be done (though a wrong reason be given for doing it) the thing itself may stand. The rule is sensible. It establishes a working theory steadily applied by appellate courts. [Mockowik v. Railroad, 196 Mo. l. c. 568; Smart v. Kansas City, 208 Mo. 162.]

(a) Under this head counsel argues there was error in giving two instructions for defendant, marked' “A” and “B.” Instruction “A,” counsel argues,, goes outside of the answer in outlining the defense, for that the answer alleges a specific act of negligence on the part of plaintiff and the instruction deals with an act of negligence not pleaded in the answer. It is argued, further, that instruction “B” conflicts with plaintiff’s second and third instructions, which in turn correctly declare the law. If these criticisms were-admitted sound, nevertheless they could avail plaintiff nothing on this appeal, because the record does not show that plaintiff objected or excepted to the giving of any instructions for defendant. In the absence of such objection or exception, plaintiff waived the error, if any, and the trial court would not have been warranted in convicting itself of error in that regard, nor should' the order granting a new trial stand on such ground. However, the matter need not pass off on a technicality; for we have looked into the merits and find no substance. The point is ruled against plaintiff.

(b) Under this head, plaintiff further- contends that the jury misbehaved and a new trial was due him on that score. It is attempted to impeach the verdict by the affidavits of jurors.

In Devoy v. Railroad, 192 Mo. l. c. 218-9, it was-said: “Our decisions are rich with learning showing solid reasons for the aversion of courts to allow the impeachment of a verdict by affidavits of jurors lifting the veil of the jury room, disclosing its secrets and perpetuating its animosities. See, for example, Pratte v. Coffman, 33 Mo. l. c. 77, et seq., and a current of authority following' that case.”

What was said in the Devoy case disposes of the affidavits of the jurors, but plaintiff filed the affidavit of himself and his counsel in aid of the jurors’ affidavits. We have examined them with care. The fact complained of in all the affidavits is that a certain juryman told his fellows in consultation that he had visited the place of the accident during an adjournment of the case and described what he saw there. It is stated that after this recital some of the jurymen shifted from plaintiff to defendant. The affidavit of plaintiff and his counsel do not state as a fact that the juryman in question actually visited the locus after the adjournment of court and after the submission of the case. There is nothing here showing this juryman did that thing or actually acquired information outside of the sworn testimony. The affidavits tell what the juryman said to his fellows and end there. How this information came to plaintiff or his counsel is not shown. If it came from any other than a juryman. the affidavit of that person should have been produced. If it came from a juryman, certainly the information at second hand ought not to have more force than if it came from first hand, to-wit, in an affidavit from a juryman himself. The point is ruled against plaintiff.

II. Did the trial court err in admitting the surgeons’ evidence? This is the main .question in the case — a bone of contention most learnedly picked by counsel. It arose at the trial in the examination of one of the house surgeons of St. Mary’s Hospital— Dr. Yandover. It seems St. Mary’s Hospital was used by defendant company for the benefit of its employees needing medical or surgical aid. It seems the surgeons of St. Mary’s take statements from defendant’s employees who are brought to the hospital on facts relating to injuries, make out reports and send them to defendant’s officers. , When Dr. Yandover was on the stand he was asked if plaintiff had made this statement: “I wanted to have a passage and I went in between the cars, sat down and the cars backed up on me?” The question went to the vitals of the case; for if plaintiff was in the open (as he testified) where he could he seen, it might he that one rule of law would he applied; if, to jhe contrary, he was (by his own admissions) hid away where he could not be seen, another rule might be applied. The case is submitted here by counsel on the theory that the law would be one way in one case and the other way in the other case; therefore, we may assume that to be so. To the question ■‘plaintiff’s counsel objected generally and asked the privilege of cross-examining the witness before he answered. It developed in such cross-examination that at the time of his injury plaintiff was a member of the Hospital Association of the Terminal Employees and that St. Mary’s Hospital had charge of that work. Plaintiff’s counsel then lodged the following objection: “That he (meaning the surgeon) is incompetent to answer any questions as presented there.” The witness was not allowed to answer the question for the present.' Thereupon there was questioning in which Mr. Gentry, for defendant, Mr.- Bond, for plaintiff, and the court itself took a hand. It was developed thereby that plaintiff made the statement to Dr. Nichols, one of the four surgeons present in the operating room, three of them being assistants to the chief surgeon — Dr. McOandless. Plaintiff was not told in so many words that the surgeons were acting as in the pay of and for the Terminal Railroad Association; presumably plaintiff knew that. It appeared that the surgeons were not trying at the time to learn the story of the case as to the injury for the purpose of treatment. In response to a question directed to that fact, Dr. Vandover replied: “No, they were not; the injury was self-evident, treatment was the same under any circumstances.” He further testified that the course of treatment for the injury had been already determined upon by the surgeons in charge of the case; that there could be only one course ■of treatment and it was self-evident; that the statement by the plaintiff did not affect the course of treatment; and that it was not necessary for the surgeon to know the position of plaintiff when he was injured in order to act. So much appearing, the objection made by plaintiff’s counsel to the testimony of the ■surgeon was overruled, and the witness testified that plaintiff made the statement charged to him and hereinbefore set forth. We do not see from the printed record that any exception was saved by plaintiff’s counsel to the overruling of his objection to that testimony. On cross-examination witness again' testified the inquiry made of plaintiff was not necessary for his treatment. That it was made in order to fill -out a form for a surgeon’s report due defendant company, and was written down. The witness thought plaintiff signed it. The same testimony was offered by defendant from Doctor Nichols, another house surgeon present at the time, and referred to by Dr. Yand-over. To his testimony it was. objected that “it was entirely incompetent, is a privileged communication between the physician and the plaintiff.” This objection was overruled and the witness testified to plaintiff’s statement. Again we do not see from the printed" record that any exception was saved to the ruling of the court. Under the conditions shown, Dr. Wilson, another house surgeon, testified to the same effect. To ■an interrogatory propounded to him, the objection finally made by plaintiff’s counsel was as follows: “We wish to object to the Doctor’s testimony on the ground that it is a privileged communication, any communication that Green might have made at the time, any communication between the physician and the plaintiff, is entirely incompetent for any purpose.” This objection was overruled and again we do not see that any exception was saved.

The absence of exception doubtless came from the announcement made by the trial judge while the first witness was on the stand, viz.: “I will state to the gentlemen for their convenience that exceptions are presumed to be taken to all adverse rulings; that will save the trouble of excepting. That is, in the trial of the case and in the examination of the jury, all through the trial of the case, when you make an objection and the court overrules it you are presumed to have taken your exception; if. the court sustains it, the other side is entitled to an exception.”

That ruling is of doubtful value in the trial of a case and ought to be of no force at all in an appellate court. Obviously, when a case reaches the point where a bill of exceptions is to be made, all exceptions intended to be relied on should be inserted in the bill. They cannot be hid under the cloak of an arbitrary presumption indulged below and be got at by inference. If this were plaintiff’s appeal from a judgment against him the absence of his exceptions would be fatal to his contention; but as it is defendant’s appeal and as the trial court presumably acted under its own ruling and saw the éxception in its mind’s eye though none was made, and undertook to correct what it believed its own error, the question is presented in another form and we may with propriety consider the matter on its merits.

Section 4659, Revised Statutes 1899, is as follows (omitting provisions not material here): “The following persons shall be incompetent to testify: First, .....Second,.....Third, .... Fourth, . . . ... 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.”

This statute creates a privilege unknown to the common law. [23 Am. and Eng. Ency. Law (2 Ed.), 83.] In that particular, it stands on a different foot than a similar privilege relating to an attorney and client. As shown by a table prepared by Judge Jacob Klein and inserted as a note to Gartside v. Insurance Co., 76 Mo. l. c. 452, such statute was first enacted in New York in 1828 and next in Missouri in 1835 — the Missouri statute being substantially a copy of that of New York. A similar statute was adopted in Michigan in 1846 and it is not without significance that this court has levied tribute time and again on adjudications of the higher courts of those two states in interpreting our own statute. See, for example, Gartside v. Ins. Co., 76 Mo., supra, l. c. 451; Groll v. Tower, 85 Mo. l. c. 254, et seq.; Thompson v. Ish, 99 Mo. 174, et seq.

Though in derogation of the common law, courts have not applied the rule of strict construction sometimes applied to statutes of that character. To the contrary, the right doctrine seems to be that the policy of the statute is an elevated one. It was intended to invite confidence between patient and physician and to prevent a breach of such confidence, and should be so construed as to further its life and purpose. It is obvious, the language of the statute is of such sort that its interpretation and application are troublesome. But, because the task is difficult, shall it be made easy by ignoring it? or' by applying the statute automatically to every case and all information? On the one hand, it might be so construed as to fritter away the provisions of the law. On the other hand, it . might be so literally construed as to work great mischief in the administration of justice. The ultimate object of every judicial inquiry is to get at the truth. Therefore, no rule of law standing in the way of getting at the truth should be loosely or mechanically applied. The application of such law must be with discrimination so that 'it may have the legislative effect intended for it and ^yet the investigation of truth be not unnecessarily thwarted. Evidently the Legislature had these considerations in mind, for the language used in section 4659, supra, plainly restricts the privilege created. The-statute does not say, in effect, that the door of the * sick room shall be locked once for all. It does not. say,-in effect, the mouth of the physician or surgeon shall be closed once for all. The wise general rule being- that' the admissions of a party to a suit, made outside the - court room, are admissible in evidence ágainst him, the statute does not say that all such admissions made to a physician or surgeon are privileged. It stands precisely the other way. The information under its ban is not all information acquired from a patient but is such only as was “necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon.” These are clear words in the law and under no canon of construction should they be interpreted out of the law by refinement, or because of fanciful ills. In other words, the danger of frittering away this statute is not to operate as a scarecrow frightening courts from their duty to give to every word of it a due office and meaning — being zealous and astute at all times to see to it that the statute be so construed as not to strike down its obvious purpose. To this delicate and discriminating task courts have addressed themselves; for instance :

In Pierson v. People, 79 N. Y. l. c. 433, it was said: “The purpose was to enable a patient to make such disclosures to his physician as to his ailments, under the. seal of confidence, as would enable the physician intelligently to prescribe for him; to invite confidence between physician and patient, and to prevent a breach thereof. [Edington v. Insurance Co., 67 N. Y. 185, 77 id. 564.] There has been considerable difficulty in construing this statute, and yet it has not been under cónsidération in many reported cases. It was more fully considered in the Edington cáse than.in any other or all others. It may be so literally construed'as to work great mischief, and yét its scope may be so limited by the courts as to subserve the beneficial, ends designed without blocking the wáy of justice.”

The same court in Griffiths v. Railroad, 171 N. Y. 106, and in the same volume, Green v. Railroad, p. 201 has laid down a doctrine which, as 'will presently be seen, accords with the doctrine of this court. In- the Griffiths case, Werner, J., said this: “We think there is enough in the record to indicate that the court ruled out all evidence, of the witness as to any conversation he had with the plaintiff concerning the' details-.of the accident and how it occurred.' To bring the evidence of a physician within the prohibition of the Co dé section above qxioted, three elements must coincide: - (1) The relation of physician- and patient must'exist,. .-(2) The information must be acquired while attending the patient. (3) The information must- be necessary -to enable the physician to act in that capacity. Upon the evidence disclosed by' the record, it is doubtful whether either of .these requisites was .established in the case at bar.” ■

In the Green case, Gray, J., speaking, - said: . It will be observed that the question called for -no information, which was acquired by the surgeon to enable him to act - as .such. It called for evidence, merely, of what preceded, and had caused,, the accident according to the plaintiff’s knowledge. Section 834.of the Code of Civil Procedure, whose privilege has been extended to cover this question, applies, by its language, to-eases. where information'has'been acquired by a physician, Or to a surgeon, while ‘attending a patient .in a'professional capacity, and which toas neó~ essary to 'enable him to act in that capacity.’ We may readily admit that Dr. Moorhead acquired the information, which the question called for, while attending the plaintiff in a professional capacity, and, still, we would be far from the point of the legislative purpose in enacting the section of the Code. That was that the information should be of a character necessary to enable Dr. Moorhead, or the hospital staff, to act professionally upon the case. As it was observed In Edington v. Aetna Life Ins. Co. (77 N. Y. 564), 'it is not sufficient to authorize the exclusion that the physician acquired the information while attending the patient; but it must be the necessary information mentioned.’ The object of the statute, as we are bound to presume, was the accomplishment of a just and salutary purpose; which was that the relations between physician and patient should. be protected against public disclosure, so that the patient might nnbosom himself, freely, to his medical adviser and, thus, receive the full benefit of his professional skill. Surely, it could not have been intended that any truthful version of a narrative of the events leading to an accidental injury should be excluded, and that was all the question called for, as it had come from the sufferer’s lips, and when fresh in his recollection. It is rather more consonant with the requirements of justice that no witness should, be prevented from giving such evidence.”

The New York court in those cases, in one particular, went further possibly than this court has gone in regard to the burden of proof. It held that the burden was on plaintiff to show that the testimony was privileged and came within the provisions of the statute. This court has indicated that there was a presumption the other way. But, as will be seen presently, we are in accord with the New York court in holding that the law must be applied with discrimination and that all information given by the patient to the physician is not privileged, but that the privilege extends only to information of the character mentioned in the statute.

The rule in Michigan is the same way. At a time when that Bench held a Cooley and a Campbell, the case of Campau v. North, 39 Mich. 606, came before it for decision. Miss North was a nurse. She sued Campau for personal injuries. At the trial the court-excluded certain testimony from Doctor Lichty, her physician. Plaintiff claimed she was ruptured by blows and other acts of violence while acting as Campau ’s nurse. He called Lichty and sought to prove by him that while he was attending her in a professional capacity, she told him that she had been ruptured before she went to live with plaintiff and had not been ruptured by him. The question was objected to and the trial court sustained the objection. It is not necessary to set forth the Michigan statute. It is substantially ours and we have- so decided in other cases. In disposing of the point on appeal, it was held that the exclusion of that testimony was error. The court said: “The objection and ruling were based on the statute. The common law gives no privilege in such a case. [Citing authorities.] The rule given by the statute is beneficial and based on elevated grounds of policy, and it ought not to be frittered away by refinements. It is not to be forgotten, however, that parties have their rights, and that when one takes the stand as witness to establish by his or her oath the cause of action alleged, the state of facts to give immunity under the statute ought to appear distinctly before making any exclusion of proof of contradictory admissions. So far as practicable the courts ought to see to it that the statute is not used as a mere guard against exposure of the untruth of a party, and that a rule intended as a shield is not turned into a sword. The objection in the present case was not warranted by the facts in the record. The offer was .'to show Miss North’s admission that her rupture was not caused by plaintiff in error but existed before she went to live with him. This-was material, and it does not appear in the record from the doctor’s testimony'or in any way that in case she made the admission as to the pre-existence-of the rupture, and as to its not. being caused by plaintiff in error, it was information ‘necessary to enable the doctor to prescribe for her as a physician or to do any act for her ás a surgeon. ’ And yet this is one of the fundamental conditions for ■exclusion which the statute specifies.” That case has been followed in Cooley v. Foltz, 85 Mich. 47, and in People v. Cole, 113 Mich. 83.

The same doctrine is announced in'Arkansas in interpreting a statute similar to ours. [Collins v. Mack, 31 Ark. 684.] In that case this appears: “Appellant called as a witness' Dr. Joshua Henly, who testified that he was a practicing- physician, and was called to attend appellee in her confinement at the time she was delivered of the child spoken of by her in her testimony. Appellant offered to prove by this witness that during' said visit and attendance, and about six hours after she was delivered of her child, appellee told' witness that she and appellant never had been engaged, and that he never had promised to marry her. Upon the objection of appellee, the court excluded this evidence, But upon what ground, does not appear ■ in the transcript. Not, surely, on the ground that the admission was a confidential communication to the witness, necessary to enable him to prescribe for appellee as a physician, or to do any •act for her as a surgeon (Gantt’s Digest, sec. 2485), for her statement to him was not of that character.”

In Nansas, the samé rule obtains in interpreting •a" somewhat similar statute. In Railroad v. Murray, 55 Kan. 336, in following the Michigan decisions, Johnston, J., said: “The statute does not cover communications made by the patient other than those that relate to the disease or ailment for which the physician was called to prescribe or the surgeon to treat. The declarations inquired about in this case did not relate to the physical ailment of Murray, but were with reference to the circumstances preceding the injury. They were not of a confidential character, and were not necessary to enable the doctor to prescribe or to perform any professional duty for him as a surgeon. In Michigan it was held proper for a plaintiff’s physician to testify that when called in professionally he was told by the plaintiff that she had sued the defendant and would want him as a witness, since said testimony had no reference to plaintiff’s condition. [Cooley v. Foltz, 85 Mich. 47.] . . . The exclusion of this testimony was material error, which requires a reversal of the judgment and a new trial of the case.”

Cases announcing a somewhat different view may be found, but as a rule they take color from peculiar statutory provisions under exposition.

Coming to our own courts, in Weitz v. Railroad, 53 Mo. App. 39, Judge Rombauer, referring to the distinction we have been considering, said: “We concede that, in order that such knowledge should be protected, the relation of patient and physician must exist, at least to the extent of impressing the patient with that belief. [Citing cases.] The words in the statute, ‘ attending him, ’ necessarily imply that limitation. We further concede that even the attending physician is not disqualified from testifying as to facts which he learned from the patient touching the cón- . dition of the latter, and which were in no way necessary to" enable the physician to treat the patient. [Campau v. North, 39 Mich. 606.] . . .”

In James v. Kansas City, 85 Mo. App. l. c. 24, Smith, P. J., nsed this language: “An attending physician or surgeon is not disqualified to testify as to facts which he learned from his patient touching the latter’s condition which were in no way necessary to enable him to treat such latter.”

It was held in both the foregoing cases that the burden of showing the disqualification rests on the party objecting to the testimony, but that may not be the rule deducible from our own decisions when once the relation of physician and patient' is established. [See the Kennedy case, infra.]

The tendency of this court to give such construction to this statute as will confine it within reasonable bounds is indicated in Thompson v. Ish, 99 Mo. 160, where it was held that either the heirs or devisees may waive the privilege and call the attending physician of the deceased as a witness on the issue of testamentary capacity.

In State v. Kennedy, 177 Mo. 98, the statute was under discussion and Burgess, J., for Division Two of this court, said (p. 129): “We take it that the physician or surgeon must, as a general rule, under the statute, determine for himself whether the information acquired by him from his patient is necessary for him to prescribe for such patient, and in the absence of some showing to the contrary, as in the case at bar, the presumption must be indulged that the information in question was necessary for that purpose ; otherwise, he would not desire it. To rule otherwise would be to usurp the prerogative of a physician, learned in his profession, which we have no inclination or right to do. We, of course, do not mean to say that we will not pass upon questions which are apparent to the ordinary observer, and to one not learned in the sciences of medicine and surgery, which have nothing whatever to do with the ease under consideration, and hold them not privileged.”

In the Kennedy ease, Edington v. Insurance Co., 67 N. Y. 194, was quoted from approvingly and the doctrine of that case is referred to in the New York cases heretofore cited.

In Hamilton v. Crowe, 175 Mo. 634, Gantt, J., in discussing the admissibility of a physician’s testimony said, arguendo, “It is obvious that this witness was not testifying to any information which he acquired as a physician from a patient. He was not consulted as a physician, and the information ivas not necessary to enable him to prescribe for her as such.”

In Holloway v. Kansas City, 184 Mo. 19, the matter in hand was under exposition. In that case it was held there was no waiver of the statutory privilege because plaintiff had testified to part of the conversation she had with her doctor. As pointed out, it was not “information necessary for the physician to enable him to prescribe for such a patient as a physician, or to do any act for him as a surgeon.” To the contrary, “it was purely a conversation in regard to plaintiff’s doctor bill or in regard to the contemplated law suit.” The court then cited the ease of James v. Kansas City, 85 Mo. App., supra, to the effect that: “such ineompetency does not touch facts which are in no way necessary for that purpose.” Recurring to the matter again, the court said (p. 44): “But we are not to he understood by these observations as meaning or intimating that Dr. Van Email was not competent to testify as a witness to what plaintiff said to him, if anything, in regard, to bringing suit against defendant for damages, and if she would go into it they would be able to fix up his bill against her. Such statements were not within the meaning of the statute under consideration.”

In the light of our own decisions, we have come to the conclusion that the evidence admitted from the surgeons of St. Mary’s was competent. It was not admitted to prove that plaintiff’s arm had been ground off by a wheel as against an injury by a sharp instrument. That fact stood conceded in the case. It was not admitted to prove that plaintiff was sitting down when struck. All sides conceded that. This was not a case where the location or direction of a wound, such as a gunshot wound, would be determined by the position of the wounded party and possibly material for the surgeon to know. It was admitted to prove that plaintiff was not in the open where he could be seen, but was between the cars when the backing train collided with the standing cars — that is, he was concealed —precisely as his statement made to the claim agent showed and precisely as defendant’s other evidence tended to show, and contra to his evidence at the trial. A case might be imagined where the method by which a man lost his arm was an element essential to correct"surgical or medical treatment/but'no case can be imagined within tbe realm of sense where surgical or medical treatment in' any wise depended upon whether a man was squatted in ah open place or squatted in a concealed place when hurt. The surgeons testified they did not need and did not acquire the information; for surgical purposes. It stood, then, nakedly as an admission and without privilege under the Missouri rule. Hence, the testimony was admissible, and the court was not justified in disturbing the verdict because the-testimony was let in.

III. Conceding plaintiff was a, licensee, yet there was no such pronounced user of defendant’s track between the freight platforms (either when occupied by freight cars or when unoccupied) for purposes of foot -passengers to walk or to -.defecate, as brings the-case within the doctrine of those cases charging defendant with notice of snch user. [Frye v. Railroad, 200 Mo. 377.] That element is out of the case.,

"We are of the opinion that the court erred in setr. ting aside the verdict and granting a new trial. Accordingly, the cause is reversed and rémanded with directions to the lower court to reinstate the verdict and judgment.

Graves, J., and Woodson, J., concur; Valliant, P. J., in the result.


source: Caselaw Access Project

author: VALLIANT, P. J.

license: Public Domain

text:
    WILLIAM T. JONES, Trustee, etc., v. CORNELIA S. HOGAN, Appellant.
    Division One,
    April 1, 1908.
    1. APPELLATE JURISDICTION: Title to Real Estate. Title to real estate is not involved within the meaning of that part of the Constitution defining the appellate jurisdiction of the' Supreme Court, unless the judgment itself affects the title.
    2. -: -:-: Deed to Defraud Creditors: Lien on Land. Where plaintiff brought suit, alleging that an insolvent debtor had with money concealed from his creditors bought real estate and to defraud his-creditors placed the title in his wife, and praying that the defendant wife be adjudged as holding the title as trustee for her husband’s creditors, and the court by its judgment decreed the title to be in hex, and decreed a lien against the property in favor of plaintiff in the sum of $2,188.20, and plaintiff does not appeal, title to real estate is no longer involved, but the only issue that remains is whether or not plaintiff is entitled to his lien.
    Appeal from St. Louis City Circuit Court. — Now. Jno. W. McElhinney, Judge.
    Transferred to St. Lotus Court of Appeals.

      Judson & Green for appellant.

      Bernard Greensf elder for respondent.
   VALLIANT, P. J.

— Plaintiff is the trustee in bankruptcy of the estate of Robert G-. Hogan who filed a voluntary petition in bankruptcy September 15, 1903. The defendant Cornelia S. Hogan is the wife of Robert Gr. Hogan. The petition alleges that the legal title to certain real estate, being a residence in St. Louis county particularly described, stands on the records in the name of the defendant; that the defendant paid no part of the purchase price of the property; that as much of it as has been paid, was paid by her husband Robert Gr. Hogan while he was insolvent, and she knew it, and it was paid with money concealed by him from his creditors and for the purpose of hindering, delaying and defrauding them. The prayer of the petition is that the taking of the title in the name of the defendant be adjudged to be fraudulent and void as against the plaintiff, that the defendant be declared as holding the title as trustee for her husband, and that the title he vested in the plaintiff as trustee in bankruptcy and for general relief. The answer put in issue the averments relating to the alleged fraud, etc., and asserted title in defendant.

The cause came on for trial on the pleadings and proof and at the request of the plaintiff the chancellor made and filed findings of the facts and rendered a decree thereupon. The decree as originally rendered was that an undivided twenty-two fiftieths of the real estate belonged to Robert Gr. Hogan at the time of the filing of his petition in bankruptcy, and the rest, that is, twenty-eight fiftieths, belonged to the defendant; therefore the twenty-two fiftieths was by the decree taken from the defendant and vested in the plaintiff as trustee in bankruptcy. There were motions for a new trial filed by both parties, which were continued until the next term, and when they came on to be heard the court modified the original decree so that instead of divesting the defendant of any of the legal title or vesting any of it in the plaintiff, the whole title was decreed to be in the defendant subject to a lien in favor of the plaintiff for $2,188.20, the aggregate of sums found by the court to have been paid by Robert Gr. Hogan in fraud of his creditors, for interest, taxes, repairs, etc., in keeping down the incumbrance on the property, and that the lien be enforced by sale of the property in the manner prescribed by law for the sale of real estate under execution. The court then overruled the motions for a new trial and the defendant alone appealed. The appeal came to this court presumably on the theory that title to real estate was involved.

Title to real estate is not involved in this case. True the petition attacks the defendant’s title and prays that it be taken from her and vested in the plaintiff, but .the decree as finally rendered leaves the title vested in the defendant just as the court found it, and it only imposes a lien on the property in favor of the plaintiff. The plaintiff has not appealed from that decree and the defendant does not question it in that respect; the title is, therefore, as between these parties finally adjudicated and there is no dispute about it. Title to real estate is not involved within the meaning of the Constitution that defines the jurisdiction of this court unless the judgment itself affects the title. [Edwards v. Railroad, 148 Mo. 513; Price v. Blankenship, 144 Mo. 203; Rothrock v. Lumber Co., 146 Mo. 57; Barber Asphalt Pav. Co. v. Hezel, 138 Mo. 228.]

Plaintiff in his petition claimed the right to have the title vested in him and that was one of the issues in the case, but the judgment of the trial court on that issue was against him and he did not appeal. In his petition the plaintiff also stated facts which the trial court thought were sufficient to entitle him to a lien on the land to a certain amount and so it was decreed and from that decree the .defendant appealed. Whether or not the plaintiff is entitled to such lien is the only issue now in the case.

. " The cause is transferred to the St. Louis Court of Appeals.

All concur.


text:
    THOMAS W. BREWINGTON et al., Appellants, v. JAMES BREWINGTON et al.
    Division One,
    April 1, 1908.
    1. HOMESTEAD: Privilege and Estate. Under the peculiar wording of sections 3616 and 3617, Revised Statutes 1899, the - homestead right during the lifetime of the owner of the fee may, by way of analogy, at least, be defined as a privilege, an exemption from levy and sale under execution; but, under section 3620, a different character or quality of homestead descends to the widow and minor children on the death of the owner. That section imports an estate, and. under it and by virtue of it, an estate vests instanter on the death of the owner in the widow and minor children — a life estate in the widow, .determinable by remarriage, and an estate for years in the minor children, determinable as to each when' he reaches his majority— and necessarily these estates vest in them with the incidents of ' such estates'.
    2. - — : -: Incidents: Revaluation. The incidents of the homestead right during the life of the homesteader, and the incidents of the life estate and estate for years, vested in the widow and minor. children, respectively, on his death, differ naturally in essential features. The homesteader’s right or privilege may swell or shrink in value and is subject to revaluation at any time during his life; but when an estate is vested for life or for years, it is fixed for a prescribed term; and its owner is seized for the term, and in consequence there can be no revaluation of the homestead estate once legally assigned to the widow and minor children.
    3. --: In Minor Children: Revaluation. Where a court of competent jurisdiction (the probate court), proceeding under the statute, has once severed and set out a homestead to. the widow and minor children, in the real estate of the deceased owner of • the fee, the homestead estate vested in them cannot, in the absence of fraud in the proceeding, be revalued and a greater or less extent of land be set apart to them, on a showing that it has since the assignment increased or decreased in value.
    4. -: Partition: Increase in Value. Where the homestead has been set out to the widow and minor children, it cannot be partitioned among the heirs, upon the death of the widow, prior to the time the youngest child attains its majority, however much it may increase in value, nor can it be revalued and reassigned.
    5. -: -: -: Severance and Sale: Statute. Section-3625, Revised Statutes 1899, providing that whenever the land, in which a homestead shall exist, shall exceed the statutory maximum value and extent, “and a severance of such homestead would greatly depreciate the value of the residue of the premises, or be of great inconvenience to the parties interested either in the residue or in such homestead .... the court may order the sale of the whole premises, and apportion the proceeds among the parties,” may have some bearing and be called into play, if as between the debtor and creditor the homestead cannot be severed without great prejudice to all • concerned, or if the homestead estate of the widow and minor children cannot be severed and set out without such inconvenience and loss. But it cannot be said to relate to the estate of the widow and minor children after the homestead has once been valued, severed and set out to them.
    6. -: -:-: Unsaleable Residue: This Case. After the death of the homesteader, by regular proceedings in the probate court, a homestead, consisting of 160 acres of land and valued at $1,500, was set off to his widow and minor children, some of whom are yet minors. There were other lands, and it is charged and admitted that they cannot be sold or profitably used apart from the homestead tract, and it is further admitted that the homestead tract is now worth $2,500, and that the widow is dead. Held, that the homestead tract cannot be partitioned during the minority of any of the children, nor can it be revalued and homestead again admeasured, nor can it be sold and the proceeds distributed under Sec. 3625, R. S. 1899.
    7. -: Statutes: Construction. Homestead laws are not in derogation of the common law, and are not, therefore, to' be strictly construed.
    Appeal from Madison Circuit Court. — Row. B. A. Anthony, Judge.
    Affirmed.

      E. D. Anthony for appellants.
    (1) "Whenever any dwelling-honse, outbuilding and the lands in connection therewith, in which a homestead shall exist, shall exceed the respective value mentioned in section 3616, and a severance of such homestead would greatly depreciate the value of the residue of the premises, or be of great inconvenience to the parties interested either in such residue or in such homestead, either party may apply to the circuit court, by petition, setting forth the facts, for relief; and if it shall appear that such homestead cannot be occupied in severalty without great inconvenience to the parties interested in such homestead, or in such residue, etc., or if the case requires it, the court may order a sale of the whole premises, and apportion the proceeds, and may ascertain the value of the homestead interest, etc. R. S. 1899', sec. 3625; Beckner v. McLinn, 107 Mo. 277. (2) A creditor or party in interest, where homestead and residue of land out of which homestead has been carved or set apart is held in common, “by proper steps,” may “attack the former allotment of the homestead as to quantity or value.” Macke v. Byrd, 131 Mo. 690. (3) A homestead cannot be claimed in land exceeding in value the statutory limit. Blandy v. Asher, 72 Mo. 27. (4) Where the statutes provide a remedy, as in this case, section 3625', the court must exercise some of the alternatives, if it shall appear the facts for relief bring the case within the purview of the law, and may not refuse to grant relief under the petition. (5) In all cases where lands are held in tenancy in common or coparcenary, including estates for life or for years, it shall be lawful to partition, etc. R. S. 1899', sec. 4373; Rolf v. Timmermeister, 15 Mo. App. 249.

      John R. Chitwood, R. Clay Marsh and David M. Tesreau for respondents.
    ■ (1) The homestead is a statutory right secured to the widow and minor children. The minor children cannot he deprived of the statutory right. The homestead right is a sacred and vested estate. Elstroth v. Young, 83 Mo. App-. 257; West v. McMullen, 112 Mo. 411. (2) Under section 3620, the homestead shall pass to and vest in such widow and children, and shall continue for their benefit until the youngest shall attain its legal majority and until the death of the widow. Wilson v. Johnson, 160 Mo. 515; In re Powell’s Estate, 157 Mo. 151; Goode v. Lewis, 118 Mo. 357; Hufschmidt v. Gross, 112 Mo-. 649; Rhorer v. Brockhage, 86 Mo. 545; Rogers v. Mayes, 84 Mo. 520; Adams v. Adams, 82 S. W. 66. (3) Plaintiffs did not state facts sufficient in their petition to authorize the court to order sale of the homestead, or the residue of farms Nos. 2 and 3, not included in the homestead. Sec. 3625. (4) A judgment rendered by a court of competent jurisdiction, as was and is the probate court judgment in originally assigning the homestead years ago to the widow and minor children, is not subject to a collateral attack. Brandon v. Carter, 119 Mo. 572; Camden v. Plain, 91 Mo. 117; Rosenheim v. Hartsock, 90 Mo. 357; ■Holt County v. Cannon, 114 Mo. 514; Sherwood v. Baker, 105 Mo. 472. (5) Under the facts and law farms Nos. 2 and 3 are not subject to partition in this action. The homestead is still in existence, a vested estate during the minority of the owners of the homestead, and this action for partition of the homestead is premature and cannot be maintained.
   LAMM, J.

— W. P. Brewington died intestate seized of certain real estate in Madison county, Missouri, leaving a widow and two sets of heirs, some of them children by an earlier and some by a later marriage — some adults, others minors. The lands of decedent were in three separate and detached tracts, designated in the record as “Farm No. 1,” “Farm No. 2,” and “Farm No. 3,” and here (for convenience) called A, B and O, respectively.

In the latter part of 1895, on due proceedings in the probate court of Madison county, there was valued, severed and set out to the said widow and minor children, a homestead carved out of B and C, leaving remnants of both B and C in the corpus of the general estate. The widow died. Subsequently, in 1903, the adult heirs of W. P. Brewington brought suit against the minor heirs seeking a partition and sale of tracts A, B and C, including, the homestead. As presently seen, the court refused to partition the homestead of 160 acres. Thereat plaintiffs appeal.

Referring to said remnants, partition was also refused, as presently seen, because all parties agreed that such remnants (taken as detached from the homestead) were' valueless for the purposes of partition and ought not to be partitioned at this time, unless the homestead was also partitioned.

For our purposes, it will do to say that, among other allegations, the petition pleads the homestead proceedings in the probate court with a description of the lands included therein, continuing as follows:

“Plaintiffs further state that the dwelling house, out buildings and the land in connection therewith as above set out to the widow and minor children of "W. P. Brewington, deceased, exceed the sum of fifteen hundred dollars in value as mentioned in section 3616 of the Revised Statutes of 1899 of Missouri, and a severance of such homestead for the minor children, the widow being dead, would greatly depreciate the value of the residue of the premises from which-said homestead is set off and be of great inconvenience to the parties interested in the homestead and the residue of said premises and render the residue of said premises, if partitioned and sold without the homestead, valueless. ’ ’

In substance, so far as material, defendants answered denying- the right to partition the homestead until the minor defendants all attained their majority. These answers impliedly admit an increase in the value of the homestead since it was severed and set out, but allege it contained only 160 acres and did not exceed $1,500 in value at that time.

In the judgment, nisi, the homestead proceedings are set forth with a description of .the homestead in metes and'bounds. A partition of tract A is then adjudged and it is ordered sold. As to the homestead and the remnants of B and C, the judgment runs as follows:

1 ‘ The court further finds and decrees that the foregoing described homestead so set out to the widow and minor children is not subject to partition in this action, and the court further finds that the remaining portion of farms Nos. 2 and 3 not embraced in the aforesaid described homestead cannot be divided in kind or sold without great prejudice to the interests of the heirs of said W. P. Brewington, and it is conceded and admitted by the plaintiffs and defendants that a sale or division of said remaining portion of farms Nos. 2 and 3 would be detrimental and prejudicial to the interests of said heirs and recommend that said partition be not made.”

At the trial evidence went in from plaintiffs tending to show that W. P. Brewington died seized of tracts A, B and C. That each was a farm separate and apart from the other. That the homestead was carved from tracts B and 0, leaving out a parcel of each. That the severance of these parcels from the homestead would greatly depreciate them,, and be of such inconvenience to the parties in interest as to render them valueless. Plaintiffs also introduced evidence tending to show that the homestead cannot be occupied in severalty without great inconvenience to the parties interested in such homestead and in such residue. That the homestead when set off was worth $2,000 and is now worth $3,000. That the minor defendants are two boys aged respectively twenty and nineteen years and two girls aged respectively seventeen and fifteen; and that neither tract A, B or O was susceptible of division in kind equitably.

The bill of exceptions shows further, as follows:

“The defendants to sustain the issues on their part offered evidence tending to show that the homestead as set off was worth but $1,500 at the time and is now worth about $2,500, also the ages of minors as stated, and other evidence as to ownership and interest was the same as plaintiffs ’ and that the homestead could not be set out and the remainder of the farm sold without great prejudice to all parties in interest.”

It is asserted in respondents’ brief, and not denied in appellants’, that the judgment of partition, as to tract A, has been fully executed — i. e., the land has been sold, a deed made and the proceeds divided as directed by the court in its findings. No complaint, here, is made of the refusal to partition the remnants of tracts B and C. Contra, the case proceeds on appeal on the assumption that the heirs are in accord in not wanting these remnants partitioned until such time as the homestead be also partitioned. Indeed, as pointed out, so much of the judgment as refused partition of these remnants was entered by consent, provided the refusal to partition the homestead itself was right.

It appears, then, that the sole question presented here is the right to partition a homestead, once severed and set out by proper proceedings in a court of competent jurisdiction to a widow and minor children, on the death of the widow, but before the minors attain their majority.

On the foregoing record, can the judgment stand 1 We think so; because:

I. The nature of a homestead right during the life of the head of a family owning the fee has been troublesome to define with precision, and appellate courts in Missouri, recognizing it as an anxious matter, have been chary and cautious in undertaking to define it. Hence, what has been said in that way may lack a tone of certainty and finality. The logic of the latest utterance may be said to be that the homestead interest (whatever it is) in a live debtor is not such an estate, as, when put in jeopardy by the levy of an execution, the title to real estate is involved. It has, accordingly, been held that an appeal here does not lie (i. e., that this court has no jurisdiction in an appeal) from an order sustaining or overruling a motion to quash the levy of an .execution upon a homestead because of its being exempt. [Snodgrass v. Copple, 203 Mo. 480.]

I take it the homestead right during the lifetime of the owner of the fee may, by way of analogy, at least, be defined as a privilege, an exemption from levy and sale under execution. That right arises under the peculiar wording of sections 3616 and 3617, Revised Statutes 1899; but, when we come to section 3620 in the Homestead Act, the lawmaker used language importing quite another thing and courts have uniformly put a different construction on the character and quality of a. homestead estate descending to the widow and minor children on the death of the owner. Attending to section 3620, it enacts that if the housekeeper or head of a family die, leaving a widow or any minor children, his homestead “shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit . . ., until the youngest child shall attain its legal majority, and until the death of such widow; that is to say, the children shall have the joint right of occupation with the widow until they shall arrive respectively at their majority, and the widow shall have the right to occupy such homestead' during her life or widowhood, and upon her death or remarriage it shall pass to the heirs of the husband; and the probate court having jurisdiction of the estate of the deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto.”

In construing that section, it has been uniformly and .consistently held that the homestead right .therein directed to pass and vest is not a mere privilege or exemption. To the contrary, the language employed clearly imports something more than a privilege or exemption, apt words are used importing an estate, viz.: that a life estate (determinable, as the statute now stands, on the remarriage of the widow) vests, eó instmti, by virtue of that section on the death of the head of a family, in his widow; and an estate for years (determinable as to each minor when he reached his legal majority) vests in his minor children. [Elstroth v. Young, 83 Mo. App. l. c. 258; Hufschmidt v. Gross, 112 Mo. l. c. 659, et seq.; Wilson v. Johnson, 160 Mo. l. c. 515; West v. McMullen, 112 Mo. l. c. 411, and cases cited.] So much must he held settled law.

In further developing the idea in mind, we may profitably attend to Macke v. Byrd, 131 Mo. 682. That case holds that in Missouri a homestead during the life of the head of the family may be moved about. It was said it.could not be. fastened to one spot by a judgment lien, which would he the consequence of permitting it to be sold on execution, subject to the homestead right. A homestead had been appraised and set out under prior executions in favor of one Houck, and thereafter it was sought to subject the homestead to a sale under Macke’s execution. In such condition of things this court held that the homestead, fixed and defined by the appraisers, the sheriff and the court under the Houck execution, held good “until some creditor should by proper steps attack the former allotment of the homestead as to quantity or value.” It was pointed out that this might be done under certain sections of the statute, but, until that course was taken by some one, the debtor was entitled to the full enjoyment of all his rights in and to the homestead property, including the power of disposal, of which he had taken advantage. But, before concluding the case, pains were taken to hint at the distinction between the homestead right in a live execution debtor and the homestead estate vesting in a widow and minor children at the housekeeper’s death-. To that end, Barclay, J., speaking to the point, said: ‘ ‘ The Missouri law on this subject is, unfortunately, not a model of clearness of purpose in some of its features, though its general design is plain enough. It prescribes rules of conduct some of which are applicable to the homestead owner and to his obligations and rights, during his lifetime, and others of which govern the rights of his widow and- children, in or to the homestead, after his death. It is scarcely necessary to say (though we do so out of abundant caution) that our comments are intended to apply only to a case involving the interests and rights of the homesteader, his vendees and his- -judgment creditors, but not of his widow or children, after his death. The case in hand does not involve an' inquiry into the nature of the estate of the widow or children of the homesteader, and our rulings should be understood as applying strictly to the facts now in judgment. ’ ’

The Macke case, then, but sharply points the distinction heretofore discussed between a homestead right in a live execution debtor, and a homestead estate cast by his death on his widow and infant heirs.

To sum up: On this branch of the case our conclusion is that, as near as language can interpret the intention in the legislative mind, it was to provide the shelter of a privilege or right of exemption in the housekeeper from execution levy and sale of his homestead right — this during his life. Our conclusion is further that, if he dies, section 3620 of the Homestead Act is operative to create, pass to . and vest in his widow and minor children an estate for life and years respectively, and this (necessarily) with the incidents of such estates.

II. Assuming the conclusion reached in paragraph I to be sound law, then, as pointed out in the Macke ease, supra, the incidents of the homestead right during the life of the housekeeper, or head of a family, and the incidents of the life estate and estate for years, vested in the widow and minor children on his death, might naturally be expected to differ .in essential features.

Accordingly, in Beckner v. Rule, 91 Mo. 62, it was held that during the life of a debtor he takes and holds his homestead subject to fluctuations in value. That is, when it has been once appraised and set out to him on levy of an execution if it afterwards grow in value, the excess may be subjected by a new appraisement to execution levy and sale. On the other hand, if it depreciate in value he may add to it and claim a revaluation himself. Obviously, the holding in the Beckner case was not directed to the character of estate vested in a widow and minor children on the death of the head of a family. It, on principle, would not apply to a homestead so vested on the death of its owner. As long as the homestead was a mere immunity, a privilege or right of exemption from seizure and sale under execution, it might well be allowed •elasticity — the quality of shrinking or swelling with ■the efflux of time to be adjusted as occasion demanded —although the Missouri doctrine on that score has been questioned and not followed elsewhere by some courts of last resort. [Gowdy v. Johnson, 104 Ky. 648; Gully v. Cole, 96 N. C. 447; Hardy v. Lane, 6 Lea (Tenn.) 379; McCaskill v. McKinnon, 125 N. C. 179.]

The general rule seems to be that a revaluation and a new setting off of a homestead, even to the execution debtor in his life time, will not be allowed in the absence of a plain statutory proyision to that effect. [15 Am. and Eng. Ency. Law (2 Ed.), 607.] The eases cited from Kentucky, Tennessee and North ■Carolina recognize there might be a revaluation of a homestead right claimed by an execution debtor where the original valuation was the result of a fraud, or where some extraordinary incidents had intervened loudly appealing to equitable doctrines. The Missouri •doctrine announced in the Beckner case may be referred somewhat to statutory provisions presently to be considered and which, as presently seen, relate (not so much to an interest in lands arising to the dignity of an estate vested in a widow and minor •children, but chiefly) to the mere right or privilege ■of exemption from execution levy and sale. There is a case in California [In the matter of the Estate of Matthew Delaney, 37 Cal. 176], taking color from ■peculiar statutory provisions under exposition and singular to that State, which holds that after the death ■of the housekeeper the homestead estate is subject to revaluation as of course;. but that case,. because of peculiar statutory provisions expounded, is not instructive on the question made in the case at bar.

Certainly it could not with propriety be held that ra vested life estate or a vested estate for years was ordinarily held subject to the incidents of shrinking or swelling from time to time as the case might be. When an' estate is vested for life or years it is fixed for the prescribed term. Its owners are seized for that term. [Black’s L. Dict., tit. “Vest.”]

Now, a proceeding in a court of competent jurisdiction under the statute to have a homestead estate appraised and set out to a widow and minor children is in the nature of a proceeding in rem — it binds the whole world and affects permanently the status of the estate.

It could not be denied that if such estate- could be recarved and sliced up from year to year as it increased in value, then, by the same token, it could be enlarged from year to year by adding to it other parcels of the general estate in case its value decreases. [Kenley v. Bryan, 110 Ill. 652.] Such a condition of things would breed uncertainty, instability and consequent confusion. In the nature of things it could not but injuriously affect those very persons the law holds in tender regard because of their inability to protect themselves, to-wit, the widow and the fatherless; and, therefore, it seems sensible to conclude, as we do conclude, that, in the absence of fraud in the proceeding (as here) or in the absence of a plain statutory provision allowing a revaluation, questions of value and extent of land are settled once for all when their homestead is regularly set out and adjudged.

This; conclusion is fortified by the proposition that homestead laws are not in derogation of the common law and are, therefore, not to be strictly construed. In Blandy v. Asher, 72 Mo. l. c. 28, the doctrine of Thompson on Homesteads, sections 1; 2, 3 and 4, in that behalf was approved. “Homestead laws,” says Sherwood, J., in the Blandy case, “being of a liberal and beneficent nature, being designed to prevent pauperism and vagrancy and their consequent temptations to crime, should not be dwarfed, and their evident purpose thwarted by a narrow and illiberal construction.”

In this connection, Hazelrigg, J., in Gowdy v. Johnson, supra, well said, arguendo: “The bad effect on the homesteader of rendering his habitation unstable, and increasing his anxiety for the continued shelter of his family, is not to be overlooked. While it is said that the State by such statutes is conferring merely a favor or privilege on the debtor, it is to be remembered that the State gets value received. It comes to be supported in time by a citizenship interested in the State and tied to her soil, of independent home-owners, and not of transient and uncertain tenants. It was aptly said by Mr. Benton in the Senate of the United States that ‘tenantry is unfavorable to freedom. It lays the foundation for separate orders in society, annihilates the love of country, and weakens the spirit of independence. The tenant has in fact no country, no hearth, no domestic altar, no household god. The freeholder, on the contrary, is the natural supporter of a free government; and it should be the policy of republics to multiply their freeholders, as it is the policy of monarchies to multiply their tenants. ’ As already stated, we have heretofore decided, in effect, that once a homesteader always a homesteader. And we think [it] is equally clear within certain limitations as to occupancy and possible exceptions to be noticed, once a homestead always a homestead.”

The foregoing forensic eloquence is replete with wisdom and patriotism. No good reason can be seen why.it does not point a public policy to be subserved by courts in the administration of justice. In the Kentucky case it was applied to the mere homestead interest of ah execution debtor. . Possibly, it could not be so applied in Missouri, but that is no reason why it does not closely fit and apply to the estate for years and for life vested by our statutes in his minor children arid widow when the guiding and steadying hand of the head of the family is paralyzed by death.

III. Are there any statutory provisions which command the revaluation and readmeasurement of a homestead and permit its partition when once set out?' The learned counsel for appellant puts Ms finger on section 3625, Revised Statutes 1899, and argues' that we should construe that section to mean that a homestead once set out to the widow and minor children in a court of competent jurisdiction should be revalued and, if found to be increased in value, then it should be partitioned if it cannot be occupied in severalty without great inconvenience to the parties interested in such homestead or in such residue. There being testimony in the case that the homestead, presumably by the natural rise in the value of land, has become worth between $2,500 and $3,000 and there being evidence-that the remnants of tracts B and O are of little or-no value separate from the homestead, it is argued that the conditions referred to in that section exist, ergo, the homestead should be reduced, commuted into-cash and partition go- for the whole of tracts B and C including the homestead itself. But we cannot allow the argument of counsel as sound; because section 3625 has been brought down as a live law from the first Homestead Act. It reads now as it did when it was section 10 of chapter 111 in the General Statutes of 1865, p'. 451. It refers now to section 3616', the first section of the present Homestead Act, as it referred then to section 1, the first section of the original Homestead Act. Under section 5 of the original act (now,, as amended, section 3620 and hereinbefore under exposition) the widow and minor children were vested with an estate. The original act having been borrowed from Vermont, it was held in Stouten v. Wood, 57 Mo. 380, that we borrowed the law together with the construction theretofore put upon it by the Vermont, courts, and, therefore, the -widow took an absolute title in fee, subject to the interest of the children until they attain their majority, as held by said Vermont courts. If, now, section 10 of the old act be construed in connection with section 5, which gave the widow title in fee, we would, under counsel’s theory, have the absurd result of a title in fee once vested in the widow by a valuation and admeasurement of the homestead, divested out of her by piecemeal as the land grew in value — a theory that would destroy or impair her .right of alienation. Such an irrational result never could have been in the contemplation of the Legislature — stability, fixity and alienability being of the essence of estates in fee. To the contrary, section 10 of the old act, now section 3625, Revised Statutes 1899, contemplates one of two things, viz.: either a condition of things pertaining to the homestead right of an execution debtor, or to a homestead right of a. widow and minor children which, because of given conditions, cannot be valued, severed and set out to them. It cannot be said to relate to the estate of the widow and minor children after the homestead has once been valued, severed and set out to them. If, as between the debtor and creditor the homestead cannot be severed without great prejudice to all concerned, or if the homestead estate of the widow and minor children cannot be severed and set out without such inconvenience and loss, that statute may have some bearing and be called into play.

It results that section 3625 does not give the remedy sought by plaintiffs in this case.

Counsel argue that Beckner v. McLinn, 107 Mo. 277, is authority for his position, but that case is not on all-fours with this. That case passed off on three propositions: First, one relating to the sufficiency of an order of publication; next, one relating to the general doctrine of res adjudicaba; and, next, one relating to the right of the heirs to .partition the estate when the homestead is part of an estate held in common. That a homestead may be set out by a partition proceeding, no one questions; but in this case the homestead has been set out and the question is whether, having been set out, it may be partitioned among the heirs prior to the youngest attaining its majority ?

That a homestead, as such, is not subject to partition results from the inherent character of the estate and the purpose it subserves under the policy of our laws. [Rhorer v. Brockhage, 86 Mo. 544; Simpson v. Scroggins, 182 Mo. l. c. 571; id., p. 574; Quail v. Lomas, 200 Mo. l. c. 687.]

The homestead having been once duly valued and admeasured by proceedings in a court of competent jurisdiction, is not subject to- a new adjustment under the pleadings and proof in the case at bar, nor is it subject to partition during the minority of any of ~W. P. Brewington’s children. Therefore, the judgment must be affirmed. It is so ordered.

All concur.


text:
    THE STATE ex rel. THOMPSON, Collector of the Revenue, v. O. E. PAYNE, Appellant.
    Division One,
    April 1, 1908.
    1. TAXATION: Maximum Rate: Waterworks. A city of the fourth class has power to levy a tax of thirty cents on the hundred dollars’ valuation of property, in addition to a tax of fifty cents for general city revenue, to be used in the payment of bonds issued for the purpose of constructing a waterworks system.

      2. -:--: -: Statute. The statute (Sec. 5968, R. S. 1899), authorizing a city of the fourth class “to borrow money and issue bonds for the payment thereof, within the limits prescribed by the Constitution, for the purpose of erecting waterworks .... without increasing the annual rate of taxation,” does not limit the rate of taxation to fifty cents on the one hundred dollars’ valuation, but, in addition to that amount, which may be levied for general revenue purposes to pay current expenses, etc., the city may, when properly authorized to do so by the legal voters, levy a further tax of thirty cents, or any other amount, to pay bonds issued for the construction of a waterworks system, so long as the entire amount of such bonds does not exceed the maximum indebtedness which •such city under the Constitution may incur. [Following Evans v. McFarland, 186 Mo. 703.]
    Transferred from St. Louis Court of Appeals.
    Affirmed.

      R. II. Stevens for appellant.

      Tins. K. Skinher, E. W. Mills and Sam D. Hodgdon for respondent.
   VALLIANT, P. J.

— Tliis is a suit to collect a tax imposed by a city ordinance. Webster Groves is a city of the fourth class; the relator is the collector of the city’s- revenue. Defendant is a resident of the city, owning property there subject to taxation.

Under section 11 of article 10 of our State Constitution, the rate of taxation, for city purposes, in cities of the fourth class, is limited so as not to exceed fifty cents on one hundred dollars’ valuation of property. Under section 12 of article 10, however, as construed by this court in Lamar W. & E. L. Co. v. City of Lamar, 128 Mo. 188, and decisions following that, a city may incur indebtedness in excess of the limitation prescribed in section 11 when it is for the purpose of erecting, maintaining and operating waterworks, electric light works, etc., and when it is authorized by two-thirds of the legal voters of the city and when it does not with the already existing indebtedness exceed five per cent (by amendment it is now ten per cent) of the total taxable property in the city. Section 12, authorizing the incurring of such indebtedness, requires that the city “before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for payment of the principal thereof, within twenty years from the time of contracting the same.”

Section 5968, Revised Statutes 1899, is: “The board of aldermen shall have the power to borrow money and issue bonds for the payment thereof, within the limits prescribed by the Constitution, for the purpose of erecting waterworks, electric light works, a city hall, and other public buildings and improvements, and for furnishing the same, without increasing the annual rate of taxation. But such bonds shall not be issued until two-thirds of the legal voters of such city have-assented thereto in accordance with article 13, chapter 91, Revised Statutes 1899.”

Under that section of the statute and in due compliance with its terms the city had issued its bonds to the amount of $50,000, which was within the constitutional limit, for the purpose of erecting waterworks and supplying the city with water, and those bonds were outstanding when the ordinance imposing* the tax now in question was adopted. By that ordinance a tax of fifty cents on the hundred dollars’ valuation of taxable property was imposed for general city revenue, and thirty cents to create a sinking fund and to pay interest on the water bonds. The defendant in this case tendered the fifty cents tax but refused to pay the additional assessment of thirty cents, and thereupon the collector of revenue brought this suit. The trial court rendered judgment for the plaintiff and the defendant appealed. The appeal was taken to the St. Louis Court of Appeals, and by that court transferred to this court on the ground that a decision of the case would require an interpretation of the sections of the Constitution above mentioned.

The contention of the defendant is that section 5968, Revised Statutes 1899, confers on the city power to incur the indebtedness for the purposes therein named on the condition that it be done “without increasing the annual rate of taxation,” quoting those words from the statute itself, and that therefore the city had no authority to go beyond the limit of fifty cents on the hundred dollars’ valuation, and any provision to be made for paying interest on the bonds and providing a sinking fund for the discharge of the principal within twenty years must be made out of that fifty cents ’ assessment. That is the point on which the ■ defendant rests his case, and it is the only point presented for our consideration.

Since the appeal in this case was taken the same question that it now presents for our decision has been decided by this court in the ease of Evans v. McFarland, 186 Mo. 703. That case was argued more than once before the court and it received our careful consideration.

In that case the city of West Plains, a city of the fourth class, had, for the same purpose the tax in the case at bar has been assessed, imposed a tax of twenty-five cents- on the hundred dollars’ valuation in addition to the fifty cents’ tax for general city revenue, and the contention there was, as it here is, that the words of the statute “without increasing the annual rate of taxation” made unlawful any assessment beyond the fifty cents on the $100. The subject was considered in an elaborate and careful opinion by Lamm, J., speaking for the court, and the conclusion reached that the additional assessment of twenty-five cents to pay interest on the bonds and provide a sinking fund for their retirement was a lawful exercise of the taxing power of the city government. We can add nothing to what was said in that opinion. For the reasons given in the opinion in that case the judgment of the trial court in this case is affirmed.

All concur.