The times., 1901-04-06
LATE LEGAL DECISIONS.

Where in the making of change a per
son receives by mistake package OF
! twenty s. gold coins. instead OF a pack
age of twenty nickeIs. and approprtates
the excess of change. the Court OF Ap-
I peals of Kentucky, in the case OF Cooper
ct al vs. Commonwealth go s w Rep.
s3S), holds that ne is not guilty of lar
| ceny unless he knew OF the overpayment
at the time it was made. and then in
| tended TO convert the money to his own
| use. This question arose on the following
facts Sandy Waggener and three others
were convicted In Kentucky for the crime
of grand larceny. The four had been
| shucking corn and were paid - for their
! services. In order TO divide the money
equally among themselves they went 10
/ the Bank of Uniontown to have s. OF the
money changed into smaller denomina-
/ tions Sandy Waggener went into the
/ bank and to the cashiers counter. handed
him the s. and asked for the change. The
cashier gave him two half dollars and
roll of small-szed coin wrapped in paper.
| saying: There are twenty nlckels.
! Waggener, without knowing what was in
the paper. except from the statement OF
the cashier, reioined his companions and
the four together went 20 "A secluded spoe
n9, TO 9iviae their their money. On opening the
twenty - gold coins instead Of nickels.
| Waggener remarked. Boys, banks don't
correct mistakes and the money was
/ divided among the four and appropriated
1 by them on the trial the jury was in
| structed substantially that II the defend
! ants received the money under a mutual
| mistake, and after discovering the mis-
/ take feloniousiy converted the money to
! their own use. they were guilty. But on
appeal the Court Of Appeals held that this
was not the law and granted new trial.
! The correct rule iu the case OF an over
/ payment, the court said. was that in or
! der to constitute larceny in receiving the
oVerpayment the defendants must have
known of overpayment at the time il
was made and must have then intended
to convert the money TO their own use.
| In a SUIT for damages against a physi-
| clan for abandoning case. and leaving
( the patient without medical aid for an
/ hour. because when he attempted to oper-
! ate the patient screamed, the Supreme
/ Court of California in the case OF I.ath-
rope VS.. Flood (63 Pac. Rep. i007), held
that a verdict OF 5000 was not excessive.
1T is the undoubted law" said the court.
that a physician may elect whether
not he wiz give his services to case. but
having accepted his employment and en-
tered upon the discharge Of his duties. he
is bound to devote to the patient his best
skill and attention, and 70 abandon the
case only under one of two conditions.
First. where the contract is terminated
by the employer. which termination may
be immediate: second. where It is termi-
mated by the physician, which can. only
be done after due notice. and an
ample opportunity afforded TO secure the
presence of other medical attendance" j"
| There was testimony in this case 10 the
effect that after several unsuccessful at
temptS TO operate. during when the
patient screamed. the physician abruptly
left the house without word of explana
uon or suggestion to anyone Ine nus
band OF the patient followed him into the
street, impl0ring him to return. and not
to- leave his wife in that condition The
physician refused, saying in substance
that the woman screamed. and he was not
used TO working for women that screamed
In Missouri a legislative act requiring
railway companies during winter months
to prov ide ali electric cars with screens
to protect the motOrrnen, and imposing
fire OF S25 to S100 for every day that an
electric car is operated in winter without
a screen, has been recently held valid ard
constitutional by the Supreme Court OF
the State, in the case of State vs.. Nhita-
ker go s. w. Rep. 1889. 1t was contend
ed among other things by the railway
companies that the fines imposed for fail
ure TO comply with the statute constituted
cruel and unusual punishment, in contra
VentiOn of the Constitution In OVerrui-
ing this contention the court said: The
charge that the act imposes cTiel and un-
usual punishment is without merit EY-
cry statute imposing a fine might, Dy the
same token. be held cruel and unusual
punishment. The way 10 avoid the cruei-
ty is to obey the law and avoid these ac-
cumulated fines
In a prosecution for forgery Of a check
In Texas it was contended that there was
a fatal variance between the check offered
in evidence and the one described in the
indictment because the former had IithO-
cd
stamp. while the latter omitted the stamp
On appeal the Court OF Criminal Appeals
held that there was no variance, as 1t was
not necessary to set out in the instrument
or describe the revenue stamp, since Il
formed no part of the instrument alleged
to have been forged. (Beer vs.. State, 81
5. w. Rep, S62-)
A manufacturer of an unpatented article
cannot enjOin another manufacturer from
producing an exact imitation. holds the
Supreme Judicial Court of Massachusetts,
in the case of Flagg Manufacturing Com
pany VS. HoIway (59 n. f. Rep, 661). but
the rights of the first manufacturer may
be protected by requiring the second
manufacturer to mark clearly his goods.
so that they will not be mistaken for
those of the first. I'm the absence Of a
patent" said the court, the freedom OF
manufacture cannot be cut down under
the name of preventing unfair cOmpeti-
ton. All that can be asked is that pre-
cautions shall be taken. so far as are con-
sistent with a persons fundamental right
TO make and sell what he chooses, to pre-
vent deception.
One who entered a building undergoing
alterations. and who sustained personal
injuries because of an attempt 70 make
his exit therefrom through a window. the
framing of which was insecurely fastened
could not, holds the Supreme Court OF
Georgia, in the case of Seward vs.. Draper
(37 s Il. Rep. 97S) though his entry was
lawful and though he honestly believed
that in the existing condition OF the prem
ises il was safe and proper 10 use the
window as a means of exit. hold the own
ers of the building liable for those injuries
when his presence therein was not BY their
invitation. either express or implied. and
they in no way induced him To put the
window in question TO such Il use
The relative rights of the drivers OF ve-
hicIes were defined by the Supreme Court,
appellate term, in the recent case of Cohen
vs. Metropolitan Street Railway Company
(6S N Y Supp. 500. as follows: y driver
of a vehicle in a city street has a right
to expect that street cars viii be man
aged with reasonable care. and with a
proper regard for the rights of others
lawfully using the public thoroughfare.
and he may drive along the track In full
vipv, of an approaching car. and the fact
that he so proceeds for any distance will
not charge him with cOntributOry negit-
gence if under all the circumstances his
conduct IS consistent with ordinary prU-
dence the only limitation on his right be
ing that he must not unnecessarily inter-
avrrffh nat a 90 n