Page:The Green Bag (1889–1914), Volume 20.pdf/688

 NOTES OF RECENT CASES 537

to restrain enforcement of taxes on its vans and wagons on the ground that the right to use the streets was a privilege which was not taxable. The Supreme Court cites and quotes several cases involving somewhat similar questions to those in this one and comes to the conclusion that the statute and ordinance are both valid. It is quite clear that the power to exact a license fee which is no more than a fair return for a special municipal service rendered to an indi vidual is not the taxing power, and can be con ferred on cities. The right to use streets ought not to be held taxable; but a fee might be exacted, for instance, to pay the expense of enforcing the rule of the road on a crowded thoroughfare, or of protecting pedestrians at crossings. These are made necessary by the use of wagons in city streets. J. H. B. NEGLIGENCE. (Turntable Doctrine). Mo.Ct. of App. — The St. Louis Court of Appeals in O'Hara v. Laclede Gaslight Co.. no S. W. Rep. 642, indicates an inclination to stand by the doctrine announced in the " turntable cases" as against the recent tendency on the part of several courts to break away from it. The action was one by a parent to recover for death of a child alleged to have resulted from the negligence of defendant in leaving large gas pipes lying in such position as to be easily moved by children in play. Deceased was sent on an errand by his parents, and the evidence tended to show that while in the middle of the street the pipe, put in motion by some playing children, rolled over him and caused his death. It was claimed that the cause of the accident was the starting of the pipe to roll and not the act of leaving it in the street, but court denominates it a " death trap for children playing upon the street " and refers to the turntable doctrine in support of a judgment for plaintiff. Apparently " The Turn Table Cases " are to be without an end, so long as children are let loose and machinery is left unguarded. There is very little legal justification for the many decisions holding the owner liable to those who meddle with his property however innocent they may be. To say that the owner of the machinery invites the infant population to his property is absurd. It is hardly too much to say that uncon scious sympathy for the injured party has had much to do with the apparent establishment of the doctrine in the face of continual decisions to the contrary. PHYSICIANS. (Practice of Medicine.) Ga. Ct. of App. — The right of a "magic healer" to recover damages for an alleged malicious prosecution for "practicing medicine " without license occupied the attention of the Court of Appeals of Georgia

in Bennett v. Ware, 61 S. E. Rep. 546. Plaintiff claimed the power of healing as a direct gift from God. He used no medicine but simply placed his hands over the part of the body affected by pain. The political Code of Georgia has the following provision : " The words ' practice medicine" shall mean to suggest, recommend, prescribe or direct for the use of any person, any drug, medicine, appliance, apparatus, or other agency, whether material or not material, for the cure, relief or palliation of any ailment or disease of the mind or body." Other provisions require the taking out of license to practice, and provide penalties for practicing without so doing. The court discusses the meaning of the language at considerable length and comes to the conclusion that the acts of plaintiff did not fall within the statute but that the question was sufficiently in doubt to indicate good faith on the part of the physician who had him arrested, and affirmed a judgment sustaining a demurrer to the pe tition. PROPERTY. (Unpublished Manuscripts.) Eng. — It was recently decided in England in Mansell v. The Valley Printing Co. that the author of an unpublished work has a property right in it at common law entitling him not only to an injunction against publication by others but also to damages for a publication as for a conversion. In other words, a full right of property exists in the idea when detached from the manuscript or canvas. RAILROADS. (Accidents at Crossings.) Mich. — An interesting ruling as to the admissibility of evidence in an action for injuries received at a railroad crossing was made in Woodworth v. Detroit United Ry., 116 N. W. Rep. 549. It* appeared that the wagon of plaintiff's decedent was caught between the rail of the track and the planking of a diagonal crossing so that a car ran into it and caused the death of the decedent, for which recovery was sought. Plaintiff was per mitted to prove by one of defendant's employees that at least a dozen rigs had been stuck in the crossing in question in the same way as that of plaintiff's intestate during the last two years. The court held, overruling Gregory v. Detroit United Ry., 138 Mich. 368, 101 N. W. 546, that the evidence was properly allowed, although the defendant admitted full knowledge of the actual condition of the crossing fpr six months prior to the accident in question; that the question in issue was the condition of the street and whether its condition was due to negligence, and for the purpose of showing this the evidence of former accidents at the same place was properly ad mitted.