Digital Commons Network^™

Conflict Of Laws - Guest Motorists -How Far Is The Lex Loci Delicti Controlling In The Forum?, M. M. Howard

Michigan Law Review

Before the advent of the "guest statutes," the decisions of all but a very few states recognized no degrees of negligence and measured the duty of the automobile host towards his non-paying guest by due care under all the circumstances-the "ordinary negligence" rule. In the few exceptional states, the decisions required the plaintiff to prove "gross," "wilful," or "wanton" negligence on the part of his host in order to maintain his action. And within the last decade nineteen states have adopted "guest statutes" which, with varying language, adopt the "gross negligence" rule. Since the rule of the lex loci delicti …

The Power To Carry On The Business Of A Decedent, Harry Adelman

Michigan Law Review

The continuation of a business for the sole purpose of making a profit is clearly beyond the scope of liquidating the estate of a decedent. It is rather a trust of the business, created for the benefit of the creditors of the decedent and persons entitled to share in the distribution of the estate. The business is managed as a normal going concern, on a somewhat permanent basis, rather than as a temporary means of preserving the value for an advantageous sale.

Evidence - The Use Of Corporate Minutes In Evidence, Francis T. Goheen

Michigan Law Review

In their treatment of the principles applicable to the use of corporate minutes in evidence, the courts and the text writers have, with little or no explanation, used the language of both the parol evidence rule and the best evidence rule. Most often the question is rather summarily dismissed, and the court's opinion generally discloses very little in the way of enlightening information regarding the reasons for the exclusion or the admission and effect of the offered minutes. If general propositions are to be formulated relative to the use of corporate minutes under given conditions, such propositions must be based …

Damage As Requisite To Rescission For Misrepresentation: Ii, Glenn A. Mccleary

Michigan Law Review

For the purpose of an analytical study of the decisions involving rescission for misrepresentation in which the damage problem has been considered, it seems convenient to classify the cases into three groups: (1) where the representee obtains the very thing that he expected to get, but it is worth less than he was led reasonably to expect under the representations made to him; (2) where the representee obtains something substantially different than he was led to expect; and (3) where the representee obtains the very thing that he expected and it is as valuable as he expected it to be, …

Champerty And Maintenance - Validity Of Contingent Fee - Contracts By Laymen To Prosecute And Collect Claims Against The Government, Charles R. Moon Jr.

Michigan Law Review

It has often been said by the American courts in recent years that the doctrine of champerty, due to changes in the law of assignment of choses in action and other changes of conditions from those prevailing in England at the time of the origin of the doctrine, is no longer applicable in all its stringency. That conditions have changed cannot be denied; however, neither can it be denied that champerty is a very live doctrine today. The real basis for the doctrine of champerty is that certain contracts are contrary to public policy. When we realize this, we see …

Libel - Right Of Privacy -Auction Sale Of Debts, Gerald M. Stevens

Michigan Law Review

A creditor put his claim into the hands of one Power, who held himself out as an advertiser of accounts for sale. Power threatened several times by letter to advertise the debtor's account for sale at auction unless it was paid immediately. No payment was made; and a "flaming orange handbill" was printed and circulated about the debtor's neighborhood. It offered for sale to the highest bidder the debtor's and twenty-three other accounts. It contained, further, the statement that all accounts were guaranteed correct and undisputed and a solicitation for merchants' accounts to be similarly disposed of. Thereupon the debtor …

Executors And Administrators -Abatement Of Legacies - Intention Of Testator As Determined From Nature Of Legacy And Surrounding Circumstances, Victor P. Kayser

Michigan Law Review

When testator's estate is insufficient to pay all bequests provided for in his will, they normally abate in a definite order. For example, specific and demonstrative legacies are payable in toto before general legacies, which in turn must be paid before residuary gifts of personalty. Specific devises are free from abatement to pay pecuniary bequests; the same has been said of residuary devises. If there are insufficient assets to satisfy any class in full, bequests therein abate pro rata.

But testator may vary the order of abatement, may provide for the prior payment of any bequest he chooses. The most …

Insurance - When Contracts For Contingent Performance Of Acts Other Than Payment Of Money Constitute Insurance, Charles W. Allen

Michigan Law Review

A recent case presents the many difficulties that confront the courts in determining whether a given contract is one of insurance. Plaintiff was a glazier. For a fixed payment he agreed with his customers that during a certain period he would repair and replace, if broken, their store-front glass. Penal proceedings were instituted against plaintiff for failure to comply with the insurance laws. He brought an action to enjoin prosecution of the proceedings. It was held that the contracts were not insurance contracts and that plaintiff was entitled to the injunction.

Taxation - Jurisdiction To Tax Intangibles - Business Situs, William Stout Gordon

Michigan Law Review

The appellant, a Delaware corporation doing business in Minnesota, held the controlling interest in the stock of a large number of banks in numerous states. It transacted its corporate business and fiscal affairs in Minnesota and maintained a business office there. A property tax was imposed by Minnesota upon appellant's shares of stock in Montana and North Dakota state banking corporations. Appellant contended that, since Montana and North Dakota had imposed a property tax on the same shares, the Minnesota tax was contrary to the Fourteenth Amendment. The Court held that the shares of stock had acquired a "business situs" …

Trusts - Power Of Trustee To Invest By Savings Deposit, James W. Mehaffy

Michigan Law Review

The guardian of an incompetent veteran placed trust funds in his hands in the savings department of a trust company. The trust company was closed by order of the state bank commissioner on March 4, 1933, and failed to reopen. Held, the guardian is not chargeable with the loss, this being a proper investment of the funds. Hines v. Ayotte, (Me. 1937) 189 A. 835.

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-four leading law reviews.

Bankruptcy - Corporate Reorganization - Effect Of Release Of Collateral Obligor On Dissenting Creditors, Edward D. Ransom

Michigan Law Review

The federal district court confirmed a plan of reorganization of debtor corporation, under section 77B of the Bankruptcy Act, which expressly released defendant from liability as guarantor of bonds of the corporation and provided for cancellation of the bonds and substitution of new certificates of stock. The plaintiff, a bondholder, made no objection when the plan was submitted to the court; objection by other bondholders was overruled. The plaintiff brought suit in municipal court on the defendant's guaranty. Defendant pleaded the confirmation of the plan by the district court as res adjudicata. The trial court denied the plea and entered …

Trusts - Foreclosure Of Mortgage Held By Trustee - Disposition Of Proceeds Of Sale, Gerald M. Stevens

Michigan Law Review

Trustees foreclosed mortgages in which they had invested trust funds and which were in default. Sale of the land brought less than the principal and interest of the mortgages. Beneficiaries of the trust sued for an accounting to determine the respective rights of life tenant and remaindermen to the proceeds of the sale. Held, the net proceeds were to be apportioned between life tenant and remaindermen. To be treated as principal was a sum which, if invested at the rate of interest current for trust investments, would have produced during the period from default till final sale an income …

Book Notes, Michigan Law Review

Michigan Law Review

This department undertakes to list and, when possible, describe briefly current books on law and matters closely related thereto.

Waters And Watercourses - Extent Of Riparian Land - Compensation On Condemnation, Gerald M. Stevens

Michigan Law Review

Plaintiff owned a ranch comprising over 45,000 acres and fronting for six miles on the North Platte river. One and a half miles of the river frontage were taken by eminent domain proceedings for a dam and reservoir. Plaintiff claimed the value of his whole ranch was reduced by the loss of water rights, by the destruction of sheltering trees and brush, by the creation of a potential hazard to cattle, and by the threat of floods from breaking dam or dikes. He recovered damages on that basis. Reversing the judgment, the court held, riparian rights attached only to …

Negligence - Contributory Negligence - Infant Plaintiff's Violation Of Statute, Wayne E. Babler

Michigan Law Review

A nine-year old boy, who ran out into the street without looking in both directions, and thus violated a statute, was injured by an automobile the driver of which was allegedly negligent. Held, it is not negligence as a matter of law for a nine-year old boy to step into the street without looking both ways, notwithstanding the penal statute. Michalsky v. Gaertner, 53 Ohio App. yr, 5 N. E. (2d) 181 (1937).

Torts - Liability Of Power Company To Resident For Non-Performance Of Contract With City To Keep Street Light Burning, Paul R. Trigg

Michigan Law Review

Defendant public utility was under contract to a municipality to light the streets. Plaintiff, a local resident, was injured in an automobile collision which, he alleged, was caused by defendant's negligent failure to keep a certain street light burning. Defendant demurred. Held, that the demurrer was properly sustained. Tollison v. Georgia Power Co., 53 Ga. App. 795, 187 S. E. 181 (1936).

Eminent Domain - Public Housing And Slum Clearance As A "Public Use", Wayne E. Babler

Michigan Law Review

The recent legislation providing for housing and slum clearance raises the interesting and practical problem of whether a taking of land for such housing and slum clearance purposes by means of an eminent domain proceeding is condemnation for a "public use," within the meaning of that term in eminent domain proceedings. Such a taking was held to be for a public use in the recent case of Spahn v. Stewart.

Patents - Equity Pleading - Sufficiency Of "Short Form" Of Bill Of Complaint - Burden Of Proof Of Validity Of Patent Infringement Suit, Julian Caplan

Michigan Law Review

Complainant brought suit for infringement of letters patent and used the so-called "short form" of bill of complaint. Defendant moved to dismiss the bill for insufficient facts to constitute a cause of action, since there were no allegations of compliance with the statutory provisions for issuance of a patent. The District Court and the Circuit Court of Appeals for, the Eighth Circuit sustained the demurrer, but the Supreme Court held that under Equity Rule 25 the short form of bill of complaint contained all the ultimate facts necessary for complainant to state a cause of action. Mumm v. Jacob E. …

Evidence - Exceptions To Hearsay Rule - Physician's Testimony As To Statements Of Symptoms Made By Patient, Benjamin H. Dewey

Michigan Law Review

Plaintiff, while in the employ of the defendant, was injured when a ditch he was engaged in digging caved in upon him. Defendant alleged that the shock made active theretofore dormant pulmonary tuberculosis. He received treatment from a physician at the time of the injury. Upon plaintiff's suit under the Texas Workmen's Compensation Act, the physician was allowed to testify, over defendant's objection, that about a month and a half after the injury, the plaintiff had come to the physician's office, and reported that his sputum was stained with blood. On appeal, it was held, one judge dissenting, that …

Insurance - Automobile Insurance - "Passengers For Consideration", Jacob L. Keidan

Michigan Law Review

In an action upon an automobile liability insurance policy, defendant sought to avoid liability by proof of voluntary payments made to the insured by the plaintiff subsequent to the beginning of the trip. It was held that since no agreement for payment was made prior to the trip the insured was not then carrying "passengers for consideration" within the meaning of the clause contained in the policy for the purpose of protecting the insurer against such use of the vehicle. Reed v. Bloom, (D. C. Okla. 1936) 15 F. Supp. 600.

Wills - Executors And Administrators -Titles - Effect Of The Revocation Of Probate Decrees On The Title To Realty Acquired By Bona Fide Purchase From Heir Or Devisee, Victor P. Kayser

Michigan Law Review

There are probably few chains of title to realty that do not contain at least one link consisting of a conveyance from one who claimed as heir or devisee of a decedent. The ability of the granter to convey resulted from the fact that he was heir of an intestate or was a devisee under the last will of his testator. Sometimes it has occurred that the grantee has purchased for value and with no knowledge or suspicion of an impending attack on his grantor's title, only to have it subsequently determined in a judicial proceeding that his grantor's ancestor …

Carriers - Shipping - Limitation Of Liability By Stipulation On Ticket, Michigan Law Review

Michigan Law Review

Libelant through an agent purchased a steamship ticket to the West Indies. Neither libelant nor his agent had actual knowledge of a stipulation on the back of the ticket which required passengers to lodge a written notice of any claim against the steamship company within thirty days after termination of the voyage. All passengers were required to sign their tickets, but libelant failed to do so until the day after the cruise began. The district court dismissed a suit for personal injuries suffered while aboard the ship because of noncompliance with the limitation of the ticket. Held on appeal, reversing …

Mortgages - Deed In Lieu Of Foreclosure - Validity, Elbridge D. Phelps

Michigan Law Review

Depression years have brought to the fore a question much controverted in the early law, but now said to have become settled. That question regards the effect and efficacy of a conveyance of the mortgaged land, or a transfer of the equity of redemption, by the mortgagor to his mortgagee. It seems to have been cheerfully assumed by some lawyers, and by laymen in general, that in the absence of liens subsequent to the mortgage, the procedure is perfectly safe and proper in every case. It is the purpose of this discussion, however, to point out certain dangers inherent in …

Assault And Battery-Abusive Language And Threats - Fright Causing Miscarriage, Michigan Law Review

Michigan Law Review

Upon the plaintiff's refusal to pay anything on her account with the defendant corporation, the collecting agent of the latter, knowing that the plaintiff was far advanced in pregnancy, called her a "deadbeat" and threatened to have her arrested. In a civil action for wiful trespass to the person, the plaintiff alleged that fright caused by the defendant's conduct resulted in illness and a miscarriage. Held, that there was a cause of action stated, even though there was no physical violence. Kirby v. Jules Chain Stores Corp., 210 N. C. 808, 188 S. E. 625 (1936).