be that its occupants would be overcome with sudden fear and fright; that there would be immediately created a condition of panic under which the natural tendency of the crowd would be to rush and struggle to get out, and that some, more particularly the weaker, might fall or be thrown down and involuntarily injured in the struggle; this might be expected as a natural consequence.

It may be mentioned here that plaintiff tendered instructions on the theory that the injuries arose solely from the conduct of plaintiff's fellow passengers and to the effect that if the jury so found they should return a verdict for the appellant. The court refused to so instruct but, on the contrary, instructed the jury that if they found from the evidence that such injuries were the proximate result of the fall of the elevator plaintiff might recover therefor. Error is assigned on both the refusal of the court to give the instructions tendered by the appellant and in giving those as to proximate cause, but for the reasons we have given we are satisficd the action of the court was correct in both particulars.

[5] It is next insisted that the court erred in its instructions to the jury as to the duties and responsibilities of persons or corporations operating passenger elevators. The court instructed the jury that such persons or corporations are to be treated as common carriers of passengers and that the same duties and responsibilities rest on them as to care and diligence as on the carriers of passengers by stage coach or railway; that though not insurers of the absolute saftey of passengers they "are bound to the utmost care and diligence of very cautions persons as far as human care and foresight can go and are responsible for injuries occasioned by the slightest neglect against which human care and foresight might have guarded". It is not questioned but that this instruction correctly announces the doctrine as to the responsibility of a common carrier of passengers. The claim only is that this rule does not apply to the operation of passenger elevators. But it was expressly held by this court in Treadwell v. Whittier, 80 Cal. 574, that as to a passenger elevator operated and used just as the one here was for the benefit of customers of a store that the same rule of responsibility attaches as applies to common carriers of persons. It is not necessary to further refer to that case save to say that it fully discusses the matter and clearly points out the reason the same rule of responsibility should govern as to passenger elevators which applies to carriers of persons by stage coach or railway and sustains the correctness of the instruction as given in the case at bar. It is true, as pointed out by counsel for appellant that a different rule is announced in a few other jurisdictions-Griffin v. Manice, 166 N. Y. 197; Edwards v. Manufacturing Co., 27 Md. 248; McCracken v. Meyers, 75 N. J. 935, and Burgess v. Stowe, 134 Mich. 204. In those cases it is held that the same measure of responsibility as is imposed on stage coaches or railway companies does not apply to the owners of passenger elevators; that as to the owners of such elevators they are only required to exercise ordinary care

for the safety of their passengers. The New York case is the leading case holding to this doctrine and is quoted as authority for the similar conclusions reached by the other courts referred to. They concede that a different rule-the rule of Treadwell v. Whittier-prevails not only here, but in other jurisdictions. It is not necessary to do more than refer to those cases relied on by appellant and say that they all lay down a radically different rule than what prevails in this state as announced in the Treadwell case. But while the courts in these particular jurisdictions have not agreed with the rule laid down in Treadwell v. Whittier, it does not distrub us in our belief that that case lays down the correct doctrine as to responsibility. This Treadwell case appears to be the principal and leading case which fully considers, discusses and determines the degree of care exacted of owners of passenger elevators and declares it to be the same as that which applies to common carriers. This case has been followed in a majority of the jurisdictions where the direct question has arisen as to the degree of care exacted of owners of passenger elevators and the rule announced in it is generally accepted as sustained by the weight of authority. (Shearman & Redfield on Negligence, 2nd ed., vol. 3, sec. 319a; Hutchinson on Carriers, vol. 1, 3rd ed., sec. 100; Thompson Commentaries on the Law of Negligence, vol. 1, sec. 1078; Ray on Negligence of Imposed Duties, p. 308; Fetter, Carriage of Passengers, vol. 1, p. 550; Am. & Eng. Ency. of Law, vol. 10, 2nd ed., p. 946; Cyc., vol. 6. p. 596.) [6] Appellant contends, however, that the doctrine of Treadwell v. Whittier cannot apply in the case at bar because, as claimed, the carriage of passengers in the elevator of appellant was without reward and it is declared by section 2096 of the Civil Code that "A carrier of persons without reward must use ordinary care and diligence for their safe carriage." Hence, in the present case it is asserted that the appellant was not bound by the same rule of responsibility as carriers of persons for reward or hire. But if the appellant in the operation of its passenger elevator was a carrier of persons without reward so was the appellant in the Treadwell case, as the respondent there, as here, was a customer riding in it when it fell. It is true, as claimed by counsel here, that this section 2096 is not discussed in that case. But the principal point considered there was the rule of responsibility and it is hardly to be conceived, considering the ability of counsel who represented appellant in the Treadwell case, that if they thought there was any merit in this present point as applying in that case, where it would have applied as pertinently as here, they would not have made it. We do not think, however, the point has any merit because in our judgment the appellant was not operating its elevator as a carrier of persons without reward. Reward does not necessarily import that there must be a fare paid for carriage in a passenger elevator in order to constitute the owner thereof a carrier of persons for hire. The rule is laid down that an elevator which is operated for the use of the tenants of an office building and their visitors is a carrier of persons for hire, the rental paid by the

tenants being a compensation or reward for which the owner undertakes to carry them and their visitors by elevators. And the same rule applies with reference to elevators operated in hotels or apartment houses. (Am. & Eng. Ency. of Law, vol. 10, 2nd ed., p. 946.) In this age of lofty buildings, erected at vast expense for office purposes or devoted to hotel or apartment houses the owners would be unable to rent or use them for those purposes unless elevators were operated therein. The benefits or advantages which the owners of office buildings with elevator service derive through rental from their tenants or the proprietors of hotels or apartment houses derive from their guests or occupants through such installed service is a sufficient compensation or reward to constitute them carriers of passengers for hire as to such tenants, guests, occupants or their visitors for whose benefit the elevator is operated. We perceive no reason why this should not equally apply to the proprietor of a department store operating an elevator to carry customers or prospective customers from one floor of the store to another for the purposes of trade. In no sense is the elevator carriage which he provides for that purpose a service without reward-gratuitous service. A department store covering seven floors as it appears from the evidence that of appellant does, could not expect the patronage which an enterprise of that extent must receive in order to be profitable without providing an elevator service, giving ready access to customers to its various floors. The reward of the appellant was the benefit, advantage and profit to it in trade derived from purchasers or prospective purchasers using the elevator in dealing with it. Naturally this facility of transportation would increase its patronage and necessarily its profits in business. In fixing the price at which its goods and merchandise must be sold so as to return a profit, necessarily the operating expenses of the establishment, including this elevator service, must be taken into consideration and provided for. The prices charged and paid by customers for goods would include a reimbursement to appellant for its expenses entailed in the operation of the elevator for its patrons, and hence would constitute a sufficient reward for their carriage so as to bring appellant within the category of a carrier of passengers for hire and subject to the same duties and responsibilities.

Complaint is made by appellant of the refusal of the court to grant a new trial based on alleged newly discovered evidence consisting of testimony which it was claimed would be given by two physicians who had treated plaintiff in the city of Portland some three years before the accident while she resided there. The ruling of the court was correct. Aside from other reasons which justified it, it appears that appellant was in possession of information long prior to the trial whereby in the exercise of ordinary diligence it could have obtained the testimony of these witnesses. Aside from this, however, the appellant had actually obtained from these physicians full information as to the matters it expected they would testify to, several days before the trial was finished and if it deemed their testimony important

should have applied for a continuance (which it did not) until it could be procured. (Berry v. Metzlar, 7 Cal. 418; Klockenbaum v. Pierson, 22 Cal. 160; Scanlan v. San Francisco etc. Ry. Co., 128 Cal. 586.)

The judgment and order appealed from are affirmed.

We concur:

HENSHAW, J.

MELVIN, J.

LORIGAN, J.

Sac. No. 2159. Department One. March 29, 1915. CLARENCE F. ROWLEY, Defendant and Respondent, v. J. O. DAVIS et al., Defendants.

Sac. No. 2160. Department One. March 29, 1915.

E. C. BAUR et al., Plaintiffs and Respondents, v. J. O. DAVIS et al., Defendants; J. O. DAVIS, ROSINA P. DAVIS and E. F. DAVIS, Appellants.

[1] MORTGAGE-ACTION FOR FORECLOSURE DEFENDANTS-POSTPONEMENT

CONFLICTING CLAIMS OF

FOR FUTURE DETERMINATION-DECREE FORECLOSING MORTGAGE-DISCRETION.-It is within the sound discretion of the trial court in an action for the foreclosure of a mortgage to give the plaintiff judgment for the relief asked and postpone the determination of conflicting claims between the defendants in which the plaintiff is not interested and which do not affect the relief which he asks.

[2] ID.-D.-ASSERTION OF LIENS ON MORTGAGED PREMISES-A1TACK UPON CONVEYANCE-DECREE FORECLOSING MORTGAGE-POSTPONEMENT OF DISPOSITION OF CONFLICTING CLAIMS-DISCRETION Nor ABUSED. It is not an abuse of discretion in an action for the foreclosure of a mortgage, where there is no defense to the plaintiff's action, to make a decree of foreclosure reserving for future determination certain litigation between the mortgagors and third parties in which the plaintiff had no interest, involving the validity of their attachment and judgment liens on the property, and attacking the alleged conveyance of the land as having been made with the intent to defraud them.

[3] ID.-ID-RIGHT OF REDEMPTION NOT PREJUDICED.-Such practice does not imperil or prejudice the defendant's right of redemption, as the same would run from the time of sale and the amounts to be paid would depend on the price paid at the sale.

Appeal from the Superior Court of Yolo County-N. A. Hawkins, Judge.

For Appellants-Pemberton & Pemberton, J. O. Davis.
For Respondents-Athur C. Huston, J. A. Elston.

For Cross-Complainant and Intervener-Black & Black.

The two cases above entitled present the same questions upon facts identical in effect. A decision in one will determine both. In each case the appeals are from the judgment and from an order denying a new trial. We will state in detail the facts involved in case No. 2159.

Rowley's complaint stated a cause of action to foreclose a mortgage on a tract of land in Yolo county, executed by J. O. Davis and Rozina P. Davis, his wife, on March 9, 1910, to secure

their note for $10,000. It contained the usual allegations and, with respect to all the defendants except the said mortgagors, it merely alleged that they had, or claimed to have, some interest or claim on the premises and that said interests or claims were subsequent to and subject to the lien of plaintiff's mortgage. The mortgage provided for the payment of reasonable fees for plaintiff's attorneys and the complaint alleged that $750 was such reasonable fee.

The defendants, J. O. Davis, Rozina P. Davis and E. F. Davis, appellants herein, filed an answer admitting all the allegations of the complaint, except as to the attorneys' fee, and alleged that $100 was a sufficient fee. Defendant, Nichols, filed an affirmative answer and cross-complaint, claiming therein certain attachment liens on the land under writs issued in actions begun in Alameda county for debts of Davis and wife, subject to plaintiff's mortgage, and alleged that certain deeds whereby the mortgaged land had been transferred from J. O. Davis and wife, through mesne conveyances, to E. F. Davis, prior to the levies of the attachments, were made with intent to defraud Nichols and other creditors of Davis and wife and asking that said deeds be set aside and the land subjected to his attachments. The First National Bank of Berkeley, by leave of court, filed a complaint in intervention, alleged a judgment lien on the land, subordinate to plaintiff's mortgage, and likewise attacking the aforesaid transfers to E. F. Davis, and asking that they be adjudged fraudulent and void. The plaintiff answered the pleadings of the said defendants, denying the allegations of each of them. The appealing defendants demurred to the pleadings of said co-defendants and intervener, but they have not filed answers thereto and no ruling has been made on the demurrers. In this condition of the pleadings the court, on motion of the plaintiff and over the objection of the appellants, proceeded to try the issues arising upon the plaintiff's complaint and the answers thereto, without at the same time trying the issues upon the cross-complaint aforesaid, it's announced intention being to reserve said controversies between the defendants for future determination in the cause. It thereupon made findings that $500 was a reasonable fee for the plaintiff's attorneys, which finding is not attacked, and declaring that no determination was made of the issues upon the other pleadings aforesaid. A decree foreclosing the plaintiff's mortgage and for the sale of the land was thereupon made, expressly saving the rights of the defendants and the intervenor, or either of them. to any surplus remaining of the proceeds after satisfying the plaintiff's debt and costs, and providing that such surplus, if any, should be paid into court to be distributed to the respective defendants as their interests might subsequently be made to appear and as the court should subsequently determine.

The sole point presented in support of these appeals is that the court erred in proceeding to trial, determination and adjudication of the case, upon the plaintiff's complaint, and in entering judgment thereon, without, at the same time trying and adjudicating the respective rights of Nichols and the bank to their asserted liens on the land and their cross-actions to set aside said conveyances.