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to perform any duty assumed, and do is to treat disease, and the subwhich is ordinarily performed by li- stitution of words like "analysis," censed medical or osteopathic phy- "palpation," and "adjustment” does sicians, or practitioners of any other not change the nature of their act. form or system of treating the af- Com. v. Zimmerman, 221 Mass. 184, flicted.”

and cases cited on page 189, 108 N. It is clear from the allegations of E. 893, Ann. Cas. 1916A, 858. the complaint that defendant under- Hence, when the defendant assumes took to diagnose as well as to treat to perform that duty he must exerthe disease. Diagnosis is ordinarily cise the care and skill in so doing assumed and performed by licensed that is usually exercised by a recmedical or osteopathic physicians. ognized school of the medical proBut it may be assumed by others, fession. Nelson v. Harrington, 72 and it is held that the practice of Wis. 591, 1 L.R.A. 719, 7 Am. St. chiropractic is the practice of medi- Rep. 900, 40 N. W. 228. This the cine. Com. v. Zimmerman, 221 complaint alleges he failed to do, and Mass. 184, 108 N. E. 893, Ann. Cas. the demurrer admits the allegation. 1916A, 858; State v. Barnes, 119 S. For these reasons we reach the conC. 213, 112 S. E. 62. And the fact clusion that the trial court erred in that chiropractors abstain from the sustaining the demurrer. use of words like “diagnosis," Order reversed, and cause re"treatment," or "disease" is imma- manded, with directions to overterial. What they hold

they hold them- rule the demurrer and for further selves out to do and what they proceedings according to law.

ANNOTATION.

Care and skill required of a chiropractor or osteopath.

It is stated generally (21 R. C. L. perform the operation, and acts with 383) that a physician or surgeon is en- due caution and circumspection, he titled to have his treatment of his pa- would not be guilty of manslaughter in tient tested by the rules and princi- the event of the death of the subject ples of the school of medicine to of the operation; but that the defendwhich he belongs. There are but few ant, an osteopath, who performed the cases involving specifically the care operation in this case (which was of and skill required of a chiropractor or an obstetrical nature), acted with such osteopath.

a shocking degree of unskilfulness, In Wilkins v. Brock (1908) 81 Vt. and showed such an absence of care 332, 70 Atl. 572, in an action for and circumspection, that a verdict of malpractice against osteopathic phy- manslaughter against him was fully sicians, the court held that, osteopathy justified. In regard to the legal propobeing recognized as a distinct school sition stated above, the court says: of practice, the treatment was to be “The right of persons to perform or attested by the principles and practices tempt to perform surgical operations of that school, and not by the prin- upon others, in the honest and reaciples and practices of any other sonable belief that such operations are school, nor of the profession gener- necessary to save the life of those ally.

needing such ministrations, is not In People v. Hunt (1915) 26 Cal. confined to those who are licensed by App. 514, 147 Pac. 476, the court the state to perform surgical operastated the general proposition that, if tions of the nature of that attempted a person, under the circumstances of in this case. Any person actuated by the case presented to him at the time, the reasonable belief, based upon the reasonably believes that a surgical op- circumstances, that such an operation eration is necessary to save life, and is necessary to save life, and who acts acting upon such belief attempts to with due caution and circumspection

upon the

in the performance of such operation, cine, a physician of another school, cannot be held guilty of manslaugh- who had also examined the plaintiff, ter.” This was in answer to a charge would be a competent witness to exof the trial court that the defendant, press an opinion as to the diagnosis as an osteopath, was not licensed to made by the osteopath in the instant perform major operations, and that in case, but such a witness would not performing such an operation result- be competent to express an opinion ing in death he would be guilty of as to the treatment of the plaintiff, manslaughter.

unless it appeared that the school to In State v. Smith (1914) 25 Idaho, which he belonged and that to which 541, 138 Pac. 1107, reversing a con- the osteopath belonged employed the viction of a duly licensed osteo- same treatment. pathic physician, for involuntary man- In Stemons v. Turner (1922) 274 slaughter because of the death of a Pa. 228, 26 A.L.R. 727, 117 Atl. 922, patient whom he had treated,

the court held, in an action against ground, inter alia, that a physician of an osteopath for negligence in the a different school was permitted to use of an X-ray on a patient, that it testify as an expert as to the correct- was the duty of the osteopath, in ness and professional skill of the operating the machine, to exercise the treatment, the court said that the skill reasonably required in the proptreatment of a physician of one par- er use of such practice and treatment. ticular school was to be tested by the (Generally as to liability for injury by general principles and practices of X-ray, see the annotation in 26 A.L.R. his school, and not by those of other 732.) schools, and a physician or surgeon In the reported case (KUECHLER v. was bound to exercise such reasonable VOLGMANN, ante, 826) it was held skill and care as were possessed and that malpractice may consist in a lack exercised by physicians and surgeons of skill and care in diagnosis as well generally in good standing of the same as treatment, and chiropractors who by system or school or practice or treat- statute are permitted to practise withment in the locality of his practice,

out a license are required to exercise having due regard to the advanced

care and skill in diagnosis, and are state of the school or science of treat

liable for malpractice if they fail to ment at the time of administering

do so, under a statute providing that such treatment. Where an osteopath diagnosed a

any person practising any form or sys

tem of treating the afflicted without physical affliction as a partial dislocation of the hip, when as a matter of

having a license shall be liable to all fact the affliction was a hip disease,

the penalties for malpractice, and igthe court held in Grainger v. Still

norance shall not lessen such liability (1905) 187 Mo. 197, 70 L.R.A. 49, 85

for failing to perform, or unskilfully S. W. 1114, that the plaintiff, in an

performing, any duty assumed, and action for damages for malpractice,

which is ordinarily performed by limade out a prima facie case which

censed physicians, or practitioners of entitled plaintiff to go to the jury, and

any other form or system of treating cast upon the osteopath the necessity

the afflicted. The standard of skill of overcoming it; and the court was and care that should have been exof the opinion that, where the evi- ercised in diagnosis by the chiropracdence showed that the diagnosis of tor in the instant case was that care hip disease and dislocations was the and skill usually exercised by a recogsame by both osteopaths and physi- nized school of the medical profescians of every other school of medi- sion.

R. P. D.

A. G. GRABEN MOTOR COMPANY

V.
BROWN GARAGE COMPANY, Appt.

lowa Supreme Court - November 20, 1923.

(- Iowa, -, 195 N. W. 752.) Lien — for storage of automobile.

1. A garage keeper has no lien for the mere storage of an automobile at the request of the mortgagor, as against the claim of the holder of a recorded purchase-money mortgage.

[See note on this question beginning on page 834.] Mortgage - right of mortgagor in Appeal - rejection of evidence possession.

nonprejudicial error. 2. Permitting a mortgagor of an au- 4. Refusal of the court, in an action tomobile to retain possession of it con- by the holder of a purchase-money fers no implied authority to bind the mortgage to replevy an automobile, to mortgagee by a contract for its stor- permit the reading of the petition in age.

evidence for the purpose of emphasizEstoppel - permitting mortgagor to ing the discrepancy between its allestore property.

gations and the testimony of a witness 3. A mortgagee of an automobile is as to the value of the machine, is not not estopped to assert his rights prejudicial error, where the value of against an alleged lien for storage, by the car, added to the damages alfailure promptly to recover possession

lowed, was substantially equivalent to of the property upon receiving notice the balance due on the purchase price. that the vehicle had been placed in storage.

APPEAL by defendant from a judgment of the Municipal Court of Des Moines (Franklin, J.) in favor of plaintiff in an action brought to recover possession of an automobile. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Theodore Mantz and John right to the possession of the auE. Holmes for appellant.

tomobile upon its purchase-money Messrs. R. R. Nesbitt and P. W.

mortgage, which had been breached Walters for appellee.

by Miller; appellant defended upon Stevens, J., delivered the opinion the theory that it has a common-law of the court:

lien, which is superior to the mortAppellee, a corporation, brings gage lien of appellee. The court this action in replevin to recover the

withdrew this issue from the jury, possession of an automobile from

and submitted to it only the questhe defendant, a corporation en

tions of demand and damages. gaged in the business of keeping a

Appellant relies wholly upon a garage. The automobile was pur- common-law lien. The business of chased by one Miller from appellee, a garage keeper is, in some respects, and a purchase-money mortage giv

similar to that of a livery-stable en to secure the unpaid portion of keeper, in which carriages are kept the purchase price. On or about for hire. No lien existed at comOctober 1, 1921, Miller placed the mon law in favor of livery-stable car in appellant's garage for stor- keepers. McDonald & Co. v. Benage at the agreed price of $10 per nett, 45 Iowa, 456; Smith v. O'Brien, month. It remained in storage un- 46 Misc. 325, 94 N. Y. Supp. 673; til this action was commenced in Nance v. 0. K. Houck Piano Co. 128 August, 1922. Appellee based its Tenn. 1, 155 S. W. 1172. Ann. Cas. (-Iowa, 195 N. W. 752.) 1914D, 834; McGhee v. Edwards, 87 the statute relating to and governing Tenn. 506, 3 L.R.A. 654, 11 S. W. the business of warehousemen. 316. So far, however, as the deci- II. It is also argued by appellant sions in other jurisdictions have that appellee, by its conduct, waived been brought to our attention, stat. its lien in favor of appellant and is utes creating a lien in favor of now estopped to assert same. This livery-stable keepers have been con- claim is based upon the permission strued as having no application to granted Miller, the purchaser of the garage keepers. Smith v. O'Brien, automobile, to retain possession 46 Misc. 325, 94 N. Y. Supp. 673; thereof, and actual notice that the Lloyd v. Kilpatrick, 71 Misc. 19, 127 automobile was being held by appelN. Y. Supp. 1096; Automobile & lant as security for storage charges Supply Co. v. Hands, 28 Ont. L. Rep. under the good-faith belief that it 585, 13 D. L. R. 222; Webster V. had a common-law lien therefor. Black, 24 Manitoba L. R. 456, 28 Implied authority on the part of MilWest. L. R. 300, 17 D. L. R. 15; ler to contract for storage is also asHartney v. Boultney, 27 West. L. R. serted by appellant. Meré reten613, 7 Sask. L. R. 97, 6 West. Week. tion of possession by the mortgagor Rep. 260, 16 D. L. R. 521.

of a mortgaged chattel confers no Section 3137 of the Code makes implied authority upon such mortthe lien of livery-stable keepers sub- gagor to bind the

Mortgage right ject to prior liens of record, so that, mortgagee for con- of mortgagor in if the court were to hold that this tracts of this char

possession. statute is applicable to garage acter, nor is an estoppel created by keepers, it would not avail appellant, the failure of the mortgagee, with as the mortgage in question was re- notice of an ar

Estoppelcorded prior to October 1, 1921. rangement such as

permitting Appellant argues that the case comes is shown in this mortgagor to

store property. within the rule of the common law, case, to terminate which permitted a lien for repairs the same by paying charges for upon personal property. Liens for which such mortgagee is not liable, repairs were allowed at common law

and to promptly recover possession upon the theory that an additional

of the property. Beh v. Moore, 124 value was imported thereto. Pres

Iowa, 564, 100 N. W. 502; Whitlock

Mach. Co. v. Holway, 92 Me. 414, 42 ervation of automobiles by storage

Atl. 799; Adler v. Godfrey, 153 Wis. is quite different from value added

186, 140 N. W. 1115. by the skill of the artisan in making

The record disclosed that a reprerepairs thereon. Liens existed at

sentative of appellee demanded poscommon law in favor of innkeepers, session of the automobile in March, farriers, common carriers, and

1922, and that appellant refused to warehousemen, who were bound by permit it to be removed without law to serve the public in these oc- the payment of the storage charges cupations. Appellant does not claim then due. This was the only condia lien as a warehouseman, which is tion upon which appellant is shown now regulated by statute, but relies to have consented to yield possesentirely upon an assumed common- sion of the automobile to appellant. law lien. None of the liens allowed We shall not review the authorities

at common law exist cited by appellant and relied upon Lien-for storage in favor of appel- to sustain its contention that Miller of

lant, and the legis- had implied authority to bind appellature of this state has not seen fit lee for the storage charges. The to enact legislation specifically doctrine of these cases has no applicreating a lien for storage or hire in cation to the facts of this case. favor of a garage keeper. If any Other questions are argued by exists in this state, it is created by counsel, but, in view of the conclu§ 3137 or some of the provisions of sion already reached herein, they are of minor importance. The court in the petition. This could have refused to permit counsel for appel- little significance in the mind of lant to read appellee's petition to jurors in passing upon this question. the jury. The only possible pur- The court also refused to permit pose of counsel in desiring to read witness for appellant to give testithe petition to the jury was to em- mony as to a conversation over the phasize the discrepancy between the telephone, overheard by him, beallegation therein as to the value of tween Miller and someone in the ofthe automobile and the testimony office of appellee. If the ruling comGraben upon the trial. The ruling plained of was erroneous, it was of the court was manifestly without without substantial prejudice. If prejudice. The value of the auto- the conversation could be said to

31 A.L.R.-53.

mobile, added to the bear at all upon the issue of waiver Appeal-rejection of evidence damages allowed by or estoppel, it was too remote to be -nonprejudicial the jury, was sub- of any probable probative value.

stantially equivalent We find no reversible error in the to the balance due on the purchase record, and the judgment of the price of the automobile. The evi

court below is therefore affirmed. dence on the issue of value was conflicting, but Graben as a witness for

Preston, Ch. J., and Evans and appellee estimated the value at con

De Graff, JJ., concur. siderably less than the value stated Petition for rehearing denied.

error.

ANNOTATION.

Lien for storage of automobile. I. At common law, 834.

III. Under statutes giving lien: II. Applicability to garage keepers of

a. In general, 836. statutes giving liens to livery-stable

b. Waiver, 836.

c. Priority, 837. keepers, warehousemen, and repair

d. Assignment, 838. men, 835.

IV. Miscellaneous, 839.

I. At common law.

In Crosby v. Hill (1922) 121 Me. It is indispensable to the existence

432, 117 Atl. 585, the court decided of a common-law lien that the party

that a garage man had no common-law claiming it should have an independ- lien for storage, where, after the coment and exclusive possession of the pletion of the repairs on the automoproperty. 17 R. C. L. 601.

bile by the garage man, the party reIn the absence of statute, it seems

questing the repairs consented that that a garage man who stores the car

the car should remain in the garage, of a customer under an arrangement

and promised that he would pay the whereby the latter is allowed to take garage man reasonable storage thereit out of the garage and use it when

on until such time as he would be ever he desires is not entitled, under able to pay the repairs thereon, since the common law, to a lien for storage the rights of the parties were govcharges, and to hold the machine un- erned by this special contract. til such charges are satisfied. See the It was held in Saxton v. Gemehl reported case (A. G. GRABEN MOTOR (1919) 72 Pa. Super. Ct. 177, that a Co. v. BROWN GARAGE Co. ante, 832). garage keeper who carried on a reg

A garage keeper is not entitled to a ular business of receiving, storing, lien on an automobile for keeping and and repairing of automobiles, which caring for it in his garage, nor for the owners were desirous of selling, supplies such as gasolene and oil fur- cars so left with the garage man being nished to the owner while the machine in his independent and exclusive poswas being kept in the garage. Rehm session, was entitled to a lien upon a v. Viall (1914) 185 Ill. App. 425. car so stored in the amount of the

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