Semple v. Schwarz

BLAND, P. J. (after stating the facts). — 1. The deed of Mrs. Schwarz’s immediate grantor was duly acknowledged and recorded in the recorder’s office in the city of St. Louis at the time she and her husband bought the lot in question. This deed imported notice of its contents to them and all other persons (R. S. 1899, sec. 924), therefore, defendants must be deemed to have purchased the lot with notice of the covenants and restrictions. [Geer v. Lumber and Mining Co., 184 Mo. 84.] 2. The deeds of Fullerton and all those of his tes — 73 — tamentary trustee, to lots fronting on McPherson avenue and platted in Fullerton’s Second Westminster Place Addition, contain covenants and restrictions materially different from those contained in their deeds conveying lots in the first addition. Permission is granted in deeds to lots in the second addition to erect apartment houses on the lots, and the evidence shows that a large apartment house has been erected on the corner of Newstead and McPherson avenues and that four or five different families live in this house; that next door west of the apartment house is Miss Crump’s hoarding house at which from twenty to twenty-five boarders take their meals daily. Defendants contend that the property fronting on McPherson avenue was included in the first plat under the head of “Fullerton’s Westminster Place.” All evidence in respect to Fullerton’s Second Addition was excluded by the court, and we .think properly, for the reason the lots in the Second Addition were hot laid off until long after those in the first were laid off and platted, and the fact that Fullerton called one the first and the other the Second Addition shows conclusively that they were regarded by him as separate and distinct additions to the city of St. Louis.. 3. Defendants insist that the evidence fails to show Dr. Schwarz is carrying on any business at his residence on lot No. 18 that what he does there is in the exercise of his calling as a physician and is professional work, not a business calling or vocation within the meaning of the restrictions. Webster defines business as follows: “1. That which busies one, or that which engages the time, attention, or labor of any one, as his principal concern or interest, whether for a longer or shorter time; constant employment, regular occupation; as, the business of life. (2) Any particular occupation or employment engaged in for livelihood or gain, as agriculture, trade, art, or a profession.” This defini — 74 — tion is approvingly cited in the case of Trustees of Columbia College v. Lynch, 46 How. Pr. 275. In Beickler v. Guenther, 96 N. W. (Ia.) 896, it is said: “To ‘engage in business’ is uniformly construed as signifying to follow that employment or occupation which occupies the time, attention, and labor for the purpose of a livelihood or profit.” In Ragsdale v. Nagle, 106 Cal. 332, it was contended that abstracting was not a business but a profession or trade. The court held that it was a business. In Hacheny & Beno v. Leary, 12 Ore. 40, it was held that taking an application for insurance and transmitting it to the company was doing business. In Rolls v. Miller, 27 Ch. D. 71, the lease of a house contained a covenant that the lessee should not use, exercise, or carry on upon the premises any trade or business of any description whatsoever; it was held (affirming the decision of Pearson, J., “that a charitable institution called a ‘Home for Working Girls,’ where the inmates were provided with board and lodging’, whether any payment was taken or not, was a business, and came within the restrictions of the covenant.” The Incorporated Council of Law Reporting for England and Wales was incorporated for the purpose of reporting the decisions of the superior courts of law and equity. It was held that it was incorporated to do business, in The matter of the Duty on the Estate of the Incorporated Council of Law Reporting, 58 Law Jr. (1889) 90. In Kemp v. Sober, 20 Law Jr. (1850) 602, in the conveyance of a house at Kemp Town, Brighton, a covenant was contained that the purchaser should not carry on any trade, business, or calling in the said, house, or permit the same to be used to the annoyance, nuisance, or injury of any of the houses in Kemp Town; “Held, that keeping a girls’ school was a breach of the covenant; and that the court would interfere by injunction, notwithstanding other schools had been per — 75 — mitted to be carried on upon the same property in houses which were subject to a similar covenant.” Under the Massachusetts exemption laws it was held, in Goddard v. Chaffee, 2 All. 395, that the violin and bow of a debtor, whose business is that of a musician, were exempt from attachment, and in the course of the opinion it is said: “Business is a word of large signification, and denotes the employment or occupation in which a person is engaged to procure a living,” quoted in the case of Hardware Co. v. Manufacturing Co., 86 Tex. 153. See also Abel v. State, 90 Ala. 1. c. 633. In Netterville v. Barber, 52 Miss. 1. c. 171, it is said: “The primary signification of the word (business) is employment — That which employs time, attention, and labor.’ ” The term “profession” signifies an employment requiring a learned education, as those of law and physics, and is applied to a calling which requires learning and special preparation in the acquirement of such knowledge and skill. [Commonwealth ex rel. v. Mayor of Philadelphia, 10 Pa. C. C. 1. c. 147.] The term “profession,” in its broader meaning is defined by Webster to be “the occupation, if not mechanical, or agricultural, or the like, to which one devotes one’s self; the business which one professes to understand, and to follow for a subsistence; calling; vocation; employment;” quoted in Betz v. Maier, 33 S. W. (Tex.) 710. In the case of Holy Trinity Church v. United States, 143 U. S. 457, it is said: “The act of February 26, 1885, ‘to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its Territories, and the District of Columbia,’ 23 Stat. 332, c. 164, does not apply‘to a contract between an alien, residing out of the United States, and a religious society incorporated under the laws of a State, whereby he engages to — 76 — remove to the United States and to enter into the service of the society as its rector or minister.” In United States v. Laws, 163 U. S. 1. c. 266, is tbe following: “One definition of a profession is an ‘employment, especially an employment requiring a learned education, as those of divinity, law and physic.’ [Worcester’s Dictionary, title profession.] In the Century Dictionary the definition of the word ‘profession’ is given, among others, as “A vocation in which a professed knowledge of some department of science or learning is used by its practical application to the affairs of others, either in advising, guiding, or teaching them, or in serving their interests or welfare in the practice of an art founded on it. Formerly, theology, law and medicine were specifically known as the professions ; but as the applications of science and learning are extended to other departments of affairs, other vocations also receive the name. The word implies professed attainments in special knowledge as distinguished from mere skill. A practical dealing with affairs as distinguished from mere' study or investigation ; and an application of such knowledge to uses for others as a vocation, as distinguished from its pursuit for its own purposes.’ ” In Miller v. Kirkpatrick, 29 Pa. St. 1. c. 229, it is said: “The term ‘profession’ . . . is especially applicable to persons who teach or practice in law, physic, or' divinity.” The constitution of the State of Texas exempts the place of business of the head of a family from forced sale. In the case of Shryock & Rowland v. Latimer, 57 Tex. 1. c. 677, the court, construing the exemption, said: “The head of a family must have a calling or business to which the property is adapted and reasonably necessary. Such property must be used as a place to exercise the calling or business of the head of the family. “The words ‘calling’ and ‘business’ are evidently — 77 — used in the constitution in a very broad sense when taken together, but the signification of each one is uncertain; yet we are to infer that they were not used to designate the same thing. . “Taken together, they certainly embrace every legitimate avocation in life by which an honest support for a family may be obtained. “The former was probably used in the sense of ‘Profession’ or ‘trade,’ which would embrace all such employments as by course of study or apprenticeship in any of the learned professions, liberal arts, or mechanical occupations, a person has acquired skill or ability to follow, and which has become practically a matter of personal skill, in its nature not temporary in existence.” Strictly speaking, Dr. Schwarz was engaged, at his residence, in «the practice of his profession as a physician, in the discharge of his professional obligations to those who called upon him for medical advice or treatment. In a narrow or restricted sense of the term, he was perhaps not engaged in business. But the definition of the term given by the lexicographers and sanctioned by the courts is broad enough to comprehend any employment, vocation or calling in which one may engage for a livelihood or profit, and hence broad enough to take in the practice of physic, law or divinity. Whether or not Dr. Schwarz violated the covenants must be ascertained by a proper construction of the following clause in the covenants, to-wit, “nor shall said lot or any part thereof ever be used or occupied for trade or business of any kind whatever.” The covenantor evidently, from the very language used, intended to exclude from the lot all and every kind of business and every occupation or calling which can, within the broadest definition of the term, be classed as business. Any other construction of this clause of the covenant, it seems to us, would do violence to its — 78 — language and tend to defeat its evident purpose. This view is strengthened by a consideration of the object and purpose of this and the other restrictions and covenants which were to make “Fullerton’s Westminster Place” a strictly exclusive residence place and we are bound to conclude that Dr. Schwarz’s evidence shows he breached, the covenant prohibiting the occupation of lot No. 18 for business purposes. But we do hot think the evidence warrants the court to enjoin Dr. Schwarz from receiving patients at his residence at all, or that the court should say he shall not set aside a special room in his residence where patients may be received if they must call. It would be ridiculous and inhuman to hold that no patients should be admitted to Dr. Schwarz’s residence under any circumstances whatever, or to hold that he cannot set apart a room for the purpose of seeing such persons as must of necessity call at his residence for the purpose of consulting him professionally, or such as may be takén there for emergency treatment. The fact that Dr. Schwarz and his wife have set apart a room in their residence for the express purpose of receiving patients, and that he has let his patients know they may call upon him there professionally between two and four o’clock p. m., of each week day, and the fact that he has advertised this particular' room as his office by tacking his professional card on the door, constitutes the business he is conducting at his- residence in violation of the covenant. By the judgment of the circuit court, Dr. Schwarz is perpetually enjoined from habitually receiving, treating or consulting with his patients at his residence, and from displaying on the premises any sign or device indicating that Dr. Schwarz is so using his premises, and from inviting, directly or indirectly, his patients to. visit him at the premises for treatment or consultation as a physician, either by the use of cards, telephone books, or any other form of announcement, or by word — 79 — of mouth.. The covenants . run for twenty-five years only, therefore, the judgment is erroneous in that it enjoins defendants perpetually. We also think Dr. Schwarz should not be prohibited from advertising his place of residence in the telephone books; to do so would prohibit him and his patients the use of this most convenient means of communication with each other. The judgment enjoins Dr. Schwarz from habitually receiving, etc., his patients at the premises. According to the evidence, patients are in the habit of calling at the residence of their physicians whether invited to do so or not. The doctor may and should oppose and discourage such calls, but what is he to do when a call is made? He should not drive a sick person, who calls on him for relief from pain and suffering, from his door, and if he administers to him instead of ordering him off, he should not be charged with keeping an office and doing business at his residence, in violation of the covenant. We think the use of the word “habitually,” in the • prohibiting order of the court is unfortunate; the word has ah indefinite meaning. One call a month in every month in the year can as well be characterized as habitual as one call a day for every day in the year. We will not reverse the judgment and remand the cause with directions but proceed to enter here such a decree as the evidence seems to warrant; it is therefore considered by the court that defendants and each of them, for and during the life of thé restrictions, be and they are hereby enjoined and prohibited from maintaining any office upon the premises for the purpose of receiving or treating any patient who may call upon Dr. Schwarz to be treated by him, or to consult him professionally; and they are enjoined from advertising in any manner, or by any means whatever, the fact that Dr. Schwarz will receive patients or persons at the premises for the purpose of professional treatment, or — 80 — consultation; and Dr. Schwarz is enjoined and prohibited from carrying on his business as a physician at or upon the premises. All concur.