Page:Harvard Law Review Volume 10.djvu/403

AOTES. 377 before Mr. Justice Hawkins and a special jury. Reported in the London Times, Aug. ii, Nov. i8, 19, 1896.) The material facts of the case were as follows. The defendant performed the operation of double ovariotomy on the plaintiff, a single woman at that time engaged to be married. Just before the operation Miss Beatty told the defendant that if both ovaries were found to be diseased he must remove neither. He replied, " You must leave that to me." The plaintiff denied hearing this remark. When she learned that Dr. Cullingworth had taken out both ovaries, she broke her engagement, and later brought the suit in question for malpractice and assault. The jury promptly found a verdict for the defendant. As a point of law, the question seems to have been inadequately considered, the charge of Mr. Justice Hawkins being little more than a direction to the jury that there was tacit consent to the operation. It is difficult to sustain the verdict on the grounds taken. The facts, involving a direct prohibition, would seem to exclude the possibility of implying consent. But there is the better justification of public policy. When such connection between patient and surgeon is established that it is proper for the latter to act, he may lawfully, in the absence of consent, perform an operaUon which the necessity of the occasion seems to his careful judgment to require. Stephen, Digest of Criminal Law, 5th ed., p. 164, Art. 226. It is true that this does not cover a case where there is express prohibition by one rationally capable of deciding and having knowledge of the circumstances. But in this case, judging from the evident reason or cause of the instructions, the plaintiff did not have a sufficient knowledge of the facts. For the advanced stage of disease which made removal of the ovary appear necessary to a competent surgeon itself rendered the organ practically useless, as well as dangerous. Such, at least, appears to be the general medical opinion. After all is said, however, un- doubtedly the defendant's wisest course would have been to refuse to operate in such a case, when hampered by hard and fast Hmitations. Cer- tainly this is the course that would be adopted under similar conditions by the better class of surgeons in this country. More Unfair Competition Cases. — Never were unsuccessful traders more prone than at present to seek an easy path to prosperity by copy- ing the business name of a more fortunate rival, or by " dressing up " their wares to look like his, in the hope of enticing away a part of his trade. The courts continue to be flooded with these so called " unfair competition " cases. Three decisions, illustrating different aspects of the subject, have been reported within a month. In Buck^s Stove 6^ Range Co. v. Kiechle, 76 Fed. Rep. 758, the defendant, it appeared, was making stoves with white enamel lining on the inside of the doors, in imitation of those long manufactured and sold by the plaintiff, with the fraudulent purpose and result of palming them off upon the trade and the public as the manufacture of the latter. He was promptly enjoined from continuing in that line of business. In Fairbank Co. v. Bell Mfg. Co., reported in the New York Law Journal for December 14, the defendant discovered that the plaintiffs soap powder was finding an extensive market, and so determined to put up his own powder in a package of a very similar sort to that employed by plaintiff. He carried out his plan for some time with considerable success, but he too has now been enjoined. In Mossier v. Jacobs, reported in 7 Chicago Law Journal, 50