to perform any duty assumed, and which is ordinarily performed by licensed medical or osteopathic physicians, or practitioners of any other form or system of treating the afflicted."

It is clear from the allegations of the complaint that defendant undertook to diagnose as well as to treat the disease. Diagnosis is ordinarily assumed and performed by licensed medical or osteopathic physicians. But it may be assumed by others, and it is held that the practice of chiropractic is the practice of medicine. Com. v. Zimmerman, 221 Mass. 184, 108 N. E. 893, Ann. Cas. 1916A, 858; State v. Barnes, 119 S. C. 213, 112 S. E. 62. And the fact that chiropractors abstain from the use of words like "diagnosis," "treatment," or "disease" is immaterial. What they hold themselves out to do and what they

do is to treat disease, and the substitution of words like "analysis," "palpation," and "adjustment" does not change the nature of their act. Com. v. Zimmerman, 221 Mass. 184, and cases cited on page 189, 108 N. E. 893, Ann. Cas. 1916A,. 858. Hence, when the defendant assumes to perform that duty he must exercise the care and skill in so doing that is usually exercised by a recognized school of the medical profession. Nelson v. Harrington, 72 Wis. 591, 1 L.R.A. 719, 7 Am. St. Rep. 900, 40 N. W. 228. This the complaint alleges he failed to do, and the demurrer admits the allegation. For these reasons we reach the conclusion that the trial court erred in sustaining the demurrer.

Order reversed, and cause remanded, with directions to overrule the demurrer and for further proceedings according to law.

It is stated generally (21 R. C. L. 383) that a physician or surgeon is entitled to have his treatment of his patient tested by the rules and principles of the school of medicine to which he belongs. There are but few cases involving specifically the care and skill required of a chiropractor or osteopath.

In Wilkins v. Brock (1908) 81 Vt. 332, 70 Atl. 572, in an action for malpractice against osteopathic physicians, the court held that, osteopathy being recognized as a distinct school of practice, the treatment was to be tested by the principles and practices of that school, and not by the principles and practices of any other school, nor of the profession generally.

In People v. Hunt (1915) 26 Cal. App. 514, 147 Pac. 476, the court stated the general proposition that, if a person, under the circumstances of the case presented to him at the time, reasonably believes that a surgical operation is necessary to save life, and acting upon such belief attempts to

perform the operation, and acts with due caution and circumspection, he would not be guilty of manslaughter in the event of the death of the subject of the operation; but that the defendant, an osteopath, who performed the operation in this case (which was of an obstetrical nature), acted with such a shocking degree of unskilfulness, and showed such an absence of care and circumspection, that a verdict of manslaughter against him was fully justified. In regard to the legal proposition stated above, the court says: "The right of persons to perform or attempt to perform surgical operations upon others, in the honest and reasonable belief that such operations are necessary to save the life of those needing such ministrations, is not confined to those who are licensed by the state to perform surgical operations of the nature of that attempted in this case. Any person actuated by the reasonable belief, based upon the circumstances, that such an operation is necessary to save life, and who acts with due caution and circumspection

in the performance of such operation, cannot be held guilty of manslaughter." This was in answer to a charge of the trial court that the defendant, as an osteopath, was not licensed to perform major operations, and that in performing such an operation resulting in death he would be guilty of manslaughter.

In State v. Smith (1914) 25 Idaho, 541, 138 Pac. 1107, reversing a conviction of a duly licensed osteopathic physician, for involuntary manslaughter because of the death of a patient whom he had treated, upon the ground, inter alia, that a physician of a different school was permitted to testify as an expert as to the correctness and professional skill of the treatment, the court said that the treatment of a physician of one particular school was to be tested by the general principles and practices of his school, and not by those of other schools, and a physician or surgeon was bound to exercise such reasonable skill and care as were possessed and exercised by physicians and surgeons generally in good standing of the same system or school or practice or treatment in the locality of his practice, having due regard to the advanced state of the school or science of treatment at the time of administering such treatment.

Where an osteopath diagnosed a physical affliction as a partial dislocation of the hip, when as a matter of fact the affliction was a hip disease, the court held in Grainger v. Still (1905) 187 Mo. 197, 70 L.R.A. 49, 85 S. W. 1114, that the plaintiff, in an action for damages for malpractice, made out a prima facie case which entitled plaintiff to go to the jury, and cast upon the osteopath the necessity of overcoming it; and the court was of the opinion that, where the evidence showed that the diagnosis of hip disease and dislocations was the same by both osteopaths and physicians of every other school of medi

..

cine, a physician of another school, who had also examined the plaintiff, would be a competent witness to express an opinion as to the diagnosis made by the osteopath in the instant case, but such a witness would not be competent to express an opinion as to the treatment of the plaintiff, unless it appeared that the school to which he belonged and that to which the osteopath belonged employed the same treatment.

In Stemons v. Turner (1922) 274 Pa. 228, 26 A.L.R. 727, 117 Atl. 922, the court held, in an action against an osteopath for negligence in the use of an X-ray on a patient, that it was the duty of the osteopath, in operating the machine, to exercise the skill reasonably required in the proper use of such practice and treatment. (Generally as to liability for injury by X-ray, see the annotation in 26 A.L.R. 732.)

In the reported case (KUECHLER V. VOLGMANN, ante, 826) it was held that malpractice may consist in a lack of skill and care in diagnosis as well as treatment, and chiropractors who by statute are permitted to practise without a license are required to exercise care and skill in diagnosis, and are liable for malpractice if they fail to do so, under a statute providing that any person practising any form or system of treating the afflicted without having a license shall be liable to all the penalties for malpractice, and ignorance shall not lessen such liability for failing to perform, or unskilfully performing, any duty assumed, and which is ordinarily performed by licensed physicians, or practitioners of any other form or system of treating the afflicted. The standard of skill and care that should have been exercised in diagnosis by the chiropractor in the instant case was that care and skill usually exercised by a recognized school of the medical profession. R. P. D.

1914D, 834; McGhee v. Edwards, 87 Tenn. 506, 3 L.R.A. 654, 11 S. W. 316. So far, however, as the decisions in other jurisdictions have been brought to our attention, statutes creating a lien in favor of livery-stable keepers have been construed as having no application to garage keepers. Smith v. O'Brien, 46 Misc. 325, 94 N. Y. Supp. 673; Lloyd v. Kilpatrick, 71 Misc. 19, 127 N. Y. Supp. 1096; Automobile & Supply Co. v. Hands, 28 Ont. L. Rep. 585, 13 D. L. R. 222; Webster v. Black, 24 Manitoba L. R. 456, 28 West. L. R. 300, 17 D. L. R. 15; Hartney v. Boultney, 27 West. L. R. 613, 7 Sask. L. R. 97, 6 West. Week. Rep. 260, 16 D. L. R. 521.

Section 3137 of the Code makes the lien of livery-stable keepers subject to prior liens of record, so that, if the court were to hold that this statute is applicable to garage keepers, it would not avail appellant, as the mortgage in question was recorded prior to October 1, 1921. Appellant argues that the case comes within the rule of the common law, which permitted a lien for repairs upon personal property. Liens for repairs were allowed at common law upon the theory that an additional value was imported thereto. Preservation of automobiles by storage is quite different from value added by the skill of the artisan in making repairs thereon. Liens existed at common law in favor of innkeepers, farriers, common carriers, and warehousemen, who were bound by law to serve the public in these occupations. Appellant does not claim a lien as a warehouseman, which is now regulated by statute, but relies entirely upon an assumed commonlaw lien. None of the liens allowed at common law exist Lien-for storage in favor of appelof automobile. lant, and the legis

lature of this state has not seen fit to enact legislation specifically creating a lien for storage or hire in favor of a garage keeper. If any exists in this state, it is created by § 3137 or some of the provisions of 31 A.L.R.-53.

the statute relating to and governing the business of warehousemen.

II. It is also argued by appellant that appellee, by its conduct, waived its lien in favor of appellant and is now estopped to assert same. This claim is based upon the permission granted Miller, the purchaser of the automobile, to retain possession thereof, and actual notice that the automobile was being held by appellant as security for storage charges under the good-faith belief that it had a common-law lien therefor. Implied authority on the part of Miller to contract for storage is also asserted by appellant. Mere retention of possession by the mortgagor of a mortgaged chattel confers no implied authority upon such mortgagor to bind the mortgagee for con- of mortgagor in tracts of this char- possession. acter, nor is an estoppel created by the failure of the mortgagee, with notice of an arrangement such as permitting is shown in this mortgagor to case, to terminate the same by paying charges for which such mortgagee is not liable, and to promptly recover possession of the property. Beh v. Moore, 124 Iowa, 564, 100 N. W. 502; Whitlock Mach. Co. v. Holway, 92 Me. 414, 42 Atl. 799; Adler v. Godfrey, 153 Wis. 186, 140 N. W. 1115.

Mortgage-right

Estoppel

store property.

The record disclosed that a representative of appellee demanded possession of the automobile in March, 1922, and that appellant refused to permit it to be removed without the payment of the storage charges then due. This was the only condition upon which appellant is shown to have consented to yield possession of the automobile to appellant. We shall not review the authorities cited by appellant and relied upon to sustain its contention that Miller had implied authority to bind appellee for the storage charges. The doctrine of these cases has no application to the facts of this case.

Other questions are argued by counsel, but, in view of the conclusion already reached herein, they

are of minor importance. The court refused to permit counsel for appellant to read appellee's petition to the jury. The only possible purpose of counsel in desiring to read the petition to the jury was to emphasize the discrepancy between the allegation therein as to the value of the automobile and the testimony of Graben upon the trial. The ruling of the court was manifestly without prejudice. The value of the automobile, added to the tion of evidence damages allowed by -nonprejudicial the jury, was substantially equivalent to the balance due on the purchase price of the automobile. The evidence on the issue of value was conflicting, but Graben as a witness for appellee estimated the value at considerably less than the value stated

Appeal-rejec

error.

in the petition. This could have little significance in the mind of jurors in passing upon this question.

The court also refused to permit witness for appellant to give testimony as to a conversation over the telephone, overheard by him, between Miller and someone in the office of appellee. If the ruling complained of was erroneous, it was without substantial prejudice. If the conversation could be said to bear at all upon the issue of waiver or estoppel, it was too remote to be of any probable probative value. We find no reversible error in the record, and the judgment of the court below is therefore affirmed.

Preston, Ch. J., and Evans and De Graff, JJ., concur.

Petition for rehearing denied.

I. At common law, 834. II. Applicability to garage keepers of statutes giving liens to livery-stable keepers, warehousemen, and repair men, 835.

1. At common law.

It is indispensable to the existence. of a common-law lien that the party claiming it should have an independent and exclusive possession of the property. 17 R. C. L. 601.

In the absence of statute, it seems that a garage man who stores the car of a customer under an arrangement whereby the latter is allowed to take it out of the garage and use it whenever he desires is not entitled, under the common law, to a lien for storage charges, and to hold the machine until such charges are satisfied. See the reported case (A. G. GRABEN MOTOR Co. v. BROWN GARAGE Co. ante, 832).

A garage keeper is not entitled to a lien on an automobile for keeping and caring for it in his garage, nor for supplies such as gasolene and oil furnished to the owner while the machine was being kept in the garage. Rehm v. Viall (1914) 185 Ill. App. 425.

III. Under statutes giving lien:
a. In general, 836.
b. Waiver, 836.
c. Priority, 837.
d. Assignment, 838.
IV. Miscellaneous, 839.

In Crosby v. Hill (1922) 121 Me. 432, 117 Atl. 585, the court decided that a garage man had no common-law lien for storage, where, after the completion of the repairs on the automobile by the garage man, the party requesting the repairs consented that the car should remain in the garage, and promised that he would pay the garage man reasonable storage thereon until such time as he would be able to pay the repairs thereon, since the rights of the parties were governed by this special contract.

It was held in Saxton v. Gemeh! (1919) 72 Pa. Super. Ct. 177, that a garage keeper who carried on a regular business of receiving, storing, and repairing of automobiles, which the owners were desirous of selling, cars so left with the garage man being in his independent and exclusive possession, was entitled to a lien upon a car so stored in the amount of the