the damages, because, as we all know, it is impossible to rletermine whether a man willlive out this expectancy of life or not. These insurance tables are based upon the probabilities of the average human life. It may be this man, if he had not received the injury, would not have lived a year, and he may live longer than his expectancy of life. There are so many uncertainties and contingencies in human life. We cannot say whether this man would have continued to earn $50 a month; and, on the other hand, he might have earned a larger amount. So you cannot take this and figure it out on a mathematical basis; but, taking all these facts into account, and remem.bering the uncertainties and contingencies of human affairs, it is for the jury to determine the fair lump sum which will compensate the plaintiff for the pecuniary damage caused him by the injuries he has received. Of course, if you find for the plaintiff, you should remember that this sum is awarded now,-it is Il.warded in lump. He receives it all at once, and it becomes free from the uncertainties of human life, and due consideration should be given to that fact in estimating the damages to be awarded. In cases of this kind, where there is evidence showing that the party has been put to expense for nursing and the services ot a physician, that is another element of damage; but it is not claimed in this case, and there is noevidence before you showing that such lill expenditure has been made, and you cannot take that into account, but you will estimate, in fixing the amount of damage, such a sum as ,will compensate the plaintiff for the pain llJldsuffering caused him in the past and that will be caused in the future by the injury he received, and the pecuniary loss caused him by its effect upon his ability to earn money. Verdict for defendant.
In re AH LUNG.
(CXrcwtt Oourt, N. D. OaUJom1.a. February 28. 1891.)
Order 2085 of the city of San Fra.ncisco fOrbids any apothecary or other person "to sell, barter, give away. dispose of. or deliver to any person in the city and county of San Francisco any opium or morphine, or any extract of opium, or'llroduct thereof, except upon the written prescription or written order of a practiclDg physician." Section 7 of the order forbids any physicIan to prescribe "any ,of said substances, products, extracts, preparBtions,or compounds for the purpose or with the view of any person taking the same for, curiosity. or to experience ant of the sensations produced thereby, or to Indulge in the use of the samet * * for Bnypurpose except bona fide medidal purposes." 'Held, that IIUCIl order forbids the lIale of smoking opium. ,
Habea8 00ryuB. !.r. D. Riordan, fof petitioner. J. D. Page, for :t:espondent. Before SAWYlj:R, Circuit Judge.,
IN BE All LUNG.
SAWYER, J. The petitioner was arrested upon a complaint for selling to one Jerome Miller, "opium prepared and used for smoking and no other purpose," in violation of order 2085. The order makes it"Unlawful for any apothecary, druggist, or pharmacist, or any employe thereof, or any person whatever, to sell, barter, give away, dispose of or deliver to any person in the city and of San Francisco, any opium or morphine, or any extract of opium or product thereof, except upon the written prescription, or written order of a practicing physician. JJ And section 9 of the order further provides, that" Any person violating any of the provisions of this order shall be det>med guilty of a misdemeanor, and punished by a fine not exceeding five hundred dollars, or by imprisonment not six months, or by both such fine and imprisonment. JJ It is earnestly argued, that, this provision was not intended to exClude the sale of smoking opium, but, only, opium and its products, used for medicinal purposes, and in such forms, as physicians are accustomed to prescribe; th!tt physicians never pr!lscribe opium in this form, and, consequ6J:ltly, a prescription could never be ob41ined, and therefore, that a construction embracing smoking opium, would be absurd. The weIlestablished maxim that the law requires nothing impossible, asillustrated in Re Eeong Yick Dew, 10 Sawy. 44, 19 Fed. Rep, 490, is cited. But those maxims only apply, where the law is susceptible of two, or more, constructions, as in the case cited. In this case, there is no impossibility, and there does not appear to me to be any room for construction. The provision is as direct, and specific, as it is possible to make person whatever" to sell, give away, it. The order does not permit or deliver "any opium or morphine, or any extract of opium or product thereof," without a prescription, etc. That language seems to be as enm· prehensive as it is possible to make it. Smoking opium is, certainly, either "opium.", or an "extract or product thereof," e,nd it is, probaBly', the very form in which the great bulk of all the opium produced in the world is collsumed. Besides, it is manifest that it was designed to reach this form of the drug from the provisions of section 7, which, are, that"It shall be unlawful for any physiciao,to to gf/oe a prescription, or order for any of said substances, products, e:Dtraots, preparq,tiona, or
clJmpounds, f01' the purpose., or with the view of any peraontaking .the s,ame for curiosity, or.to experience any of the sensations produced thereby, or to indulge in the use of the same, or or morphine habit, orlor any purpose. emcept bona fide medical purposes ofcure or prevention of sickness or disease. JJ
Thus, the order, itself,does not leave the matter, on the hypothesis, that physicians never do or would prescribe opium for the purposes of smoking, but it cuts ofl'all possibility of evading the order byprescl:ibing it for smoking, and for cognate uses, upon the pretense, that, is for medicinal uses. I do not see how it is poBBible to doubt, under these harmonious specific provisions, that the broad scope claimed for this order, on the part of the city, is the proper construction. Ithinkupdn a full consideration of the ordinance"that the intention. oftheboardj in passing the ordinance, is expressed in "unmistakable, ':and unambigUous
language.,'" Bellides, this is aatate law, and an authoritative construction by the state courts is controlling in the national courts. The construction here adopted, was giVen to the ordinance by a department of the superior COtl.rt of San Franciscp, in the case of Pwple v. Ah NUrL, on appeal from the police court;: While this is not a decision of the supreme court, fl;nd, absolutely, authoritative, it is a construction of a state court, and I should hesitate long before court of the same grade as presuming to overrule it, on the construction of a state la'"" even if the construction adopted by the st.ate court were doubtful, or deemed erroneous. The better way in 8uc)icases, if the construction is not satisfactory, and the cOI,lstruction, i's a question at all for the national courts, would be to prosecute anap'peal and 'follow it, if necessary, to the suin the regular order of proceeding. preme court of the United It is urged that section 8, in certain cases, clearly violates the constitution of the United and that it is, consequently, void. But this case does not arise under section 8, and is not one of the cases mentioned. It will be time enough to consider that section, when a case of the kind, suggested by counsel; is presented, arising under the provisions of that section. . , Thepe#tioner must an,d,it is so ordered.
(CircuttOourt, s.n;'OMo, W. D. April 4, 1891.)
', . , Letters patent No. 801,51)6, granted July 8, to Ricbard W. Hopking for an, , " improvement in roll-paper holders arid cUttel's,the prlncipa\!features of Which are a 4angel'01' ,bracket, an(l 8rqke, preferably In one piece, passinga bole, in the hanger or bracket' havmg its arms bent to form aspriilgo and its ends curved to pass a short roUer'or core, thus sUlipendlng'the roU'of paper and allowing it to tUrn Jrell ,on yoke,in combination with a blade having its ends bent atrig4t angle's, so as to guide the paper when unrolled, in or· ,del' that, it may be cut' Ilt'ralght, corinected with tbe bracket by means of a knife l\ ., .. ,yoke, made preferably Qt, one piece, and passing through eyes or staples driven intI> ,;,;': ,the brSC.ketand two. QP,i,l\>SJ.l, on the knife YOll:,e.,an,d so arraneed as to con· tinual1y exert their for\<ein pressing t'l!e, knife against therpll, is a meritorious ,', in,veritlOn, though everyeleIhent of the combination is o.ld; , 2. " .. :," .' Such invention is not anticirated by any device intended to accomplisb astmilar ,}:,...result in-wjlich ,the elemellt,o edge pressed against the roll so ," "that the loose end may be torn: dtf'by puilIng it across the edge, and at the same t, ,time o.perating as a brake to check·the motion of the roll, is wanting. '.' ; Pefendant's device n9t,emplQY a spring for bolding the cutter against tbe -,' roU,but makes the cutter"itself' h"ltvy enough to serve for that purpose. HeZd,., " t.hat tbis i8.:a: mere equh'alenl'.t and infringes: plaintiff's patent.
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rIn -Equity:.: Bill for ,,,: Geo. H.,' K7Lightt' for;cbm plainant.!l.,' ,:,"" ArthurStem,fM,doferilliarit. '[ Iii i,e