Law Commons^™

Negligence - Proximate Cause - Liability Of Saloon Keeper For Liquor Sale Against Wife's Notice, Stephen C. Bransdorfer

Michigan Law Review

A wrongful death action was brought by the widow and children of a deceased patron of defendant's saloon, the patron having been fatally injured in a fall while engaged in fisticuffs after consuming liquor sold by defendant. Plaintiffs alleged that defendant knew that deceased became belligerent when intoxicated and that sales were made despite widow's prior request that liquor not be furnished to deceased husband in sufficient quantity to cause intoxication. The trial court sustained a demurrer without leave to amend and gave judgment for defendant. On appeal, held, reversed; the trial court abused its discretion. Cole v. Rush …

Torts - Liability Of Physician Erroneously Certifying Insanity, Richard Z. Rosenfeld

Michigan Law Review

A physician certified plaintiff to be insane, when in fact she was sane; she was thereafter committed to a state sanitarium. Upon her release, she sued the physician for negligence in examination. Defendant's demurrer for failure to state a cause of action was sustained. On appeal, held, affirmed. Quoting almost the entirety of an analogous 1900 decision from the same jurisdiction, the court held that defendant had owed no duty to plaintiff. Because the administration of the law "should not be obstructed by the fears of physicians that they may render themselves liable to suit," certifying physicians "should be …

Federal Procedure - Venue In Third-Party Tort Actions Against The United States, Robert B. Olsen S.Ed.

Michigan Law Review

Plaintiff sustained serious injuries when he was struck by a mail pouch thrown from defendant's moving train by a United States mail clerk. Action was was brought against the railroad in the District Court for the Western District of Oklahoma, whereupon the railroad filed a third-party complaint against the United States, alleging negligence on the part of the mail clerk. The United States moved for a dismissal on the ground that both plaintiffs residence and the situs of the injury were in the Eastern District of Oklahoma; since the venue provisions of Title 28, U.S.C. (1952) §1402(b) prescribe that tort …

Negligence - Duty Of Care - Effect Of Public Carrier's Financial Capacity On Liability, John E. Riecker S.Ed.

Michigan Law Review

Plaintiff sustained injuries when she fell between defendant's subway car and a platform directly opposite the car door. The cause assigned was the pressure from the closely packed crowd of subway passengers during a rush hour which resulted in plaintiff's being "carried by the crowd" into a position of danger. Defendant had shifted extra guards to the overcrowded area. No evidence of disorderliness or gang action appeared. In an action for damages due to defendant's negligence in failing to control the crowd, held, for defendant. Callaghan v. New York City Transit System, 204 Misc. 236, 125 N.Y.S. (2d) …

Negligence - Causation - Liability Under Statute For Injury Resulting From Fire Started By Railroad Locomotive, Howard. N. Thiele, Jr. S.Ed.

Michigan Law Review

Sparks from defendant's train started a fire on defendant's right of way which spread toward plaintiff's farm. Plaintiff, in an attempt to contain the fire, plowed a fire guard along the edge of his property. While driving his tractor to a safe place after completing the last furrow, he ran over a root or limb which flew up and struck him in the eye, causing blindness. In the trial court plaintiff recovered from the railroad under an Oklahoma statute which specified that "Any railroad company operating any line in this state shall be liable for all damages sustained by fire …

Workmen's Compensation - Injuries Arising Out Of And In The Course Of Employment - Employer Furnishing Transportation And Employee Carrying Work To Do At Home As Exceptions To Coming And Going Rule, James W. Beatty S.Ed.

Michigan Law Review

Decedent, a member of the Public Service Commission, was fatally injured in an accident while traveling between his place of employment and his home. He was driving an automobile furnished by the state, which bore the expenses of maintenance and operation. Decedent had with him certain files to work on at his home, his custom being to devote a part of each weekend to matters connected with his employment. Plaintiff as widow brought an action for death benefits under the Workmen's Compensation Act. The Workmen's Compensation Commission entered an award for the plaintiff. On appeal by the state, held, …

Negligence - Duties Of Railroad - Landowner Toward Frequent Trespasser - Limitations On Rights Of Trespasser, William D. Keeler S.Ed.

Michigan Law Review

The duties of a landowner toward one who enters the land without consent may no longer be determined, in many cases, by merely stating the fact that the intruder is a trespasser whose presence is unknown to the landowner. This comment will discuss an area in which the relationship of landowner and trespasser inter se has been greatly altered, and will deal in particular with a class of cases which serve to limit the expanded rights of the trespasser.

Admiralty - Warranty Of Seaworthiness - Extension To Injury Caused By Appliance Not In Control Of Shipowner, George S. Flint S.Ed.

Michigan Law Review

Libellant, a longshore foreman for a stevedoring company loading petitioner's ship, was injured when a snatch block broke, causing some loading gear to fall upon his leg. Conflicting evidence in the lower court was resolved by the trial judge, who found that the snatch block was supplied by the stevedoring company. On the basis of this finding, the trial court held that neither the ship nor its appliances were unseaworthy, and that libellant could not recover against the shipowner. The court of appeals reversed and remanded the cause for determination of damages. On certiorari to the Supreme Court, held, …

Torts-The Discretionary Function Exception In The Federal Tort Claims Act, Howard A. Cole S.Ed.

Michigan Law Review

The doctrine of the immunity of the sovereign in tort has long been the subject of attack by statesmen and legal writers. In response to these attacks and with a view to eliminating the unjust, expensive, and time-consuming method of settling tort claims against the federal government by the private bill method, Congress passed the Federal Tort Claims Act in 1946. The act contained a number of exceptions, the most important of which preserved the immunity doctrine as to any claim arising out of a "discretionary function" of government. A recent decision of the United States Supreme Court illustrates the …

Torts - Infant's Liability For Battery - Parent's Liability For Child's, Richard S. Weinstein

Michigan Law Review

Plaintiff, a baby sitter, suffered injuries when she was pushed violently to the floor by her four-year-old charge. Plaintiff brought an action against the child alleging battery and negligence, and against the parents alleging negligence in failing to warn plaintiff of the boy's habit of violently attacking people. The lower court sustained demurrers to all three counts. On appeal, held, reversed on the first and third counts. An infant may be charged with battery, and a parent may be negligent in failing to warn of an infant's violent tendencies. Ellis v. D'Angelo, 116 Cal. App. (2d) 310, 253 …

Municipal Corporations - Waiver Of Immunity To Suit By Purchase Of Liability Insurance, Chester F. Relyea S.Ed.

Michigan Law Review

The City of Knoxville owned and operated a municipal airport under authority of a state statute which permitted a municipality to acquire, maintain, and operate a municipal airport in its governmental capacity, and which barred suits against the municipality with respect to its operation of the airport. The city carried a policy of liability insurance covering it in the ownership and operation of the airport. Plaintiff was injured by a fall at the airport terminal building, and instituted a negligence action against the city. The city moved for dismissal, relying upon the immunity given it by the statute. Held, …

Workmen's Compensation - Injuries At Home Arising Out Of And In The Course Of Employment, Arthur M. Wisehart S.Ed.

Michigan Law Review

Plaintiff was employed as defendant's bookkeeper. With the consent of the employer, she had done all of the bookkeeping at home for several years. As she was about to start her work one night, plaintiff discovered that her husband's oily rifle was lying on the couch where she usually sat. In picking up the rifle to move it to its proper place in the closet, plaintiff accidentally fired the gun, causing an injury which resulted in the amputation of her left thumb. The lower court decided that the injury was one arising out of and in the course of plaintiff's …

Torts - Child's Right To Recover For Alienation Of Parent's Affection, Marvin O. Young S.Ed.

Michigan Law Review

Plaintiff's parents were divorced in 1934 when plaintiff was five years old. Custody of plaintiff was awarded to her mother, but plaintiff alleged that she received "usual paternal love, affection, maintenance, and support" from her father until 1941, when plaintiff's father took defendant as his mistress, keeping her until his death in 1952. Plaintiff brought this action for damages on the theory that defendant alienated the affections of her father, thereby depriving plaintiff of fatherly affection, guidance and support. Defendant's demurrer was overruled by the trial court. On appeal, held, reversed. In the absence of a statute, a child …

Negligence - Proving Inviter's Breach Of Duty By Circumstantial Evidence, Charles E. Oldfather S.Ed.

Michigan Law Review

Plaintiff brought a negligence action for personal injuries suffered when she slipped on a spot of grease in the driveway of defendant's railroad station. The evidence showed that the spot was at least one foot square and was covered with dust and dirt so that it resembled in color and texture the rest of the pavement. The evidence also indicated that vehicles often drove through and parked in the drive, and that there were no marks on the spot other than a deep skid mark left by plaintiff's heel. The trial court allowed the jury to determine from this evidence …

Palsgraf Revisited, William L. Prosser

Michigan Law Review

Perhaps the most celebrated of all tort cases is Palsgraf v. Long Island Railroad Company. Certainly it is one of the most controversial. Thirteen judges in all passed upon the case, and seven of them were for the plaintiff, at least in the sense that they considered that the issue was one to be left to the jury. Four of the remaining six, sitting on the Court of Appeals of New York, had the :final word, and they set aside the verdict, dismissed the complaint, and ordered judgment for the defendant. The Advisers of the Restatement of Torts debated …

Civil Procedure - Service Of Process Under Nonresident Motorist Statute - Effect Of Death Of Nonresident Defendant, Warren K. Urbom S.Ed..

Michigan Law Review

A wife sued for the wrongful death of her husband, which was allegedly caused by a nonresident defendant's negligent operation of his automobile on a Wisconsin highway while the plaintiff's husband was a passenger therein. Service of process was made on the Commissioner of the Motor Vehicle Department in Wisconsin, and copies of the summons and complaint were mailed to defendant in Illinois in accordance with the Wisconsin nonresident motorist statute. Shortly thereafter, before a judgment was rendered, defendant died. Plaintiff sought to revive the action against defendant's administrator by serving notice of the filing of a petition for revival …

Admiralty - Right To Jury Trial In Certain Cases On Great Lakes - Maintenance And Cure Not Contract Or Tort Matter, Richard B. Barnett S.Ed..

Michigan Law Review

Libelant brought an action for maintenance and cure on the admiralty side of a federal district court in Illinois. He requested a jury trial, relying on the Act of February 20, 1845, which provides that in certain admiralty and maritime cases arising on the Great Lakes relating to any matter of contract or tort, trial shall be by jury on the demand of either party. The trial court heard the case without a jury and dismissed the libel on the merits. The court of appeals held, on appeal, that maintenance and cure was a matter of ancient and established …

Common Carrier Liability In The Atomic Age: The Cummins Amendment To The Interstate Commerce Act, Anthony F. Arpaia, Clarence G. Jensen

Michigan Law Review

Any discussion of carriers' liability for goods transported by them necessarily begins with the famous case of Coggs v. Bernard. There Lord Holt two hundred and fifty years ago stated the obligation of carriers to their patrons in language which has lost none of its force and clarity by the lapse of time.

Civil Procedure-Joinder Of Causes Of Action In Michigan, J. David Voss

Michigan Law Review

Plaintiffs were the owners of several lots, and used their respective properties as residences. Defendants, manufacturers of cement and concrete products, operated several large trucks in their business. Plaintiffs filed a declaration to recover damages for injuries to their properties sustained as a result of the loud noises, vibrations, and cement dust caused by the defendants' trucks when using an alley leading to defendants' place of business. The defendants' motion for dismissal on grounds of misjoinder of parties and causes of action was overruled. On appeal, held, reversed. Owners of property are not entitled to be joined in one …

Interstate Publication, William L. Prosser

Michigan Law Review

It is an amazing and a sobering thought that by the utterance of a single ill-considered word a man may today commit forty-nine separate torts, for each of which he may be severally liable, in as many jurisdictions within the continental limits of the United States alone, and without regard to any additional liability he may incur in the possessions and territories and in foreign countries. It calls to mind at once in all solemnity those first words that ever were sent over an interstate wire, and later to the moon. What, indeed, hath God wrought!

Little less astonishing, although …

Negligence-Duty Of Care-Liability Of State Mental Hospital For Acts Of A Dangerous Patient After Improper Discharge, Edgar A. Strause S.Ed.

Michigan Law Review

One Jones, a mental incompetent, was erroneously released as "recovered" from a state hospital for the criminal insane, after having been transferred there because of his dangerous behavior at a state penal institution. Jones' frequent assaultive behavior at the hospital was not reported in his case history upon which the determination of his recovery was partially based, nor was any inquiry made into the motivation for such conduct. Crowded conditions and an inadequate psychiatric staff were responsible for the improper diagnosis of the patient's condition and his ultimate discharge. Four days after his release he killed four persons. The administratrix …

Torts-Libel And Slander, David D. Dowd, Jr.

Michigan Law Review

Plaintiff brought an action in slander alleging that defendant orally described him as a Communist during the course of a neighborhood argument. Plaintiff further asserted that when the defamatory words were spoken he held the position of an official in the United Financial Employees Union. Defendant moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Held, complaint dismissed with leave to amend. The court ruled that the averments were not sufficient to show special damage to the plaintiff, nor did they support an interpretation that the words …

Negligence-Federal Employer's Liability Act-Extension Of The Safe Place To Work Doctrine, Charles E. Oldfather S.Ed.

Michigan Law Review

Plaintiff, a lumber inspector employed by the defendant railroad, was inspecting railroad ties on a dock owned by an independent lumber company. The employees of the lumber company had piled the ties so that the ends were either flush with or protruded over the edge of the dock. In order to inspect the ends, the plaintiff assumed a ''bent-over" position in which his right foot was on the edge of the dock, his left hand on the pile and his left foot suspended in the air. After losing his balance, he placed his left foot on the dock where it …

Torts-Statutory Right Of Privacy, Richard D. Rohr S.Ed.

Michigan Law Review

Defendants used the name and portrayed the career of one Jack Donahue in a motion picture and exhibited this film in Utah. Plaintiffs, Donahue's heirs, brought suit under a Utah statute which creates a remedial action for the use of the "name, portrait, or picture" of a person, living or dead, "for advertising purposes or purposes of trade" without the written consent of that person or his heirs. There was no use of Donahue's name, portrait or picture for the purpose of advertising the film. The film ''biography" was in part without factual basis. The defendants contended that the late …

Negligence-Duty Of Care-Determination Of Plaintiff's Status Under Guest Statute, Donald M. Wilkinson, Jr.

Michigan Law Review

Plaintiff, a boy scout, was assisting in a paper collection for the benefit of his troop, and while so doing, was injured when he attempted to regain his position on a utility trailer attached to the assistant scoutmaster's automobile. Plaintiff brought suit against the assistant scoutmaster, alleging negligent operation of the automobile. Defendant's motion for judgment on the pleadings was granted in the lower court, but this ruling was reversed in the court of appeals. On appeal to the Supreme Court of Ohio, held, affirmed, three judges dissenting. Defendant was deemed to have been benefited by plaintiff's activities to …

Admiralty-Unseaworthiness Of Vessel In Having Vicious Crew Member Aboard, Richard B. Barnett S.Ed.

Michigan Law Review

Plaintiff, a seaman on board defendant's ship, went ashore on leave with the second cook. After returning to the ship, the two quarrelled and plaintiff knocked the cook down. The cook went to the galley and obtained a meat cleaver with which he struck plaintiff on the head, causing serious injury. Plaintiff brought suit against the ship owner for damages on the theory that in allowing a man of the cook's vicious proclivities to become a member of the crew, defendant failed to provide a "seaworthy" ship and that plaintiff had suffered injury as a result. Plaintiff appealed a verdict …

Torts-Defamation-Right Of Corporation To Sue For Libelous Words Concerning Its Employees, Chester F. Relyea

Michigan Law Review

The plaintiff corporation owns and operates a fashionable clothing store. The defendants are authors of a book which stated that some of the corporation's models and sales girls were prostitutes and many of its male designers and salesmen were homosexuals. A number from both groups were said to have been "imported." On defendants' motion to dismiss the complaint for failure to state a cause of action in libel, the court denied the motion. Held: even without an allegation of special damages, it could not be said as a matter of law that a corporation could not be directly damaged …

Torts-Invasion Of Right Of Privacy By Postcard Advertising, James S. Taylor

Michigan Law Review

To promote the sale of merchandise, defendant retail clothing store mailed a series of postcards to prospective customers, one of which was the plaintiff. The cards, in feminine handwriting, read, ''Please call WAbash 1943 and ask for Carolyn." Upon reading this the plaintiff's wife, who had intercepted the card, concluded that her husband was having a clandestine love affair with another woman, and when the plaintiff was unable to explain "Carolyn," she left him. Subsequent inquiry revealed that "Carolyn" was one of the defendant's employees and that the card was an advertising stunt Plaintiff filed suit on the theory that …

Admiralty-Validity Of "Born-To-Blame" Clause In Bill Of Lading, Richard B. Barnett S.Ed.

Michigan Law Review

Petitioner is owner of the S.S. Nathaniel Bacon which collided with the Esso Belgium damaging both ships. The cargo of the Bacon, owned by respondents, was also damaged. The collision was caused by the negligent navigation of employees of both ships. The bill of lading issued to respondents contained a "both-to-blame" clause requiring the cargo owners to indemnify the carrier for any cargo loss indirectly borne by the carrier. This action was brought to determine liability for the damages suffered in the collision. Held, on appeal, the ''both-to-blame" clause is invalid because of public policy prohibiting carriers from …

Negligence-Duty Of Care-Manufacturer's And Supplier's Liability To Allergic User Of Beauty Preparation, Lois H. Hambro S.Ed.

Michigan Law Review

Plaintiff contracted dermatitis from the use of a mixture of ammonium thioglycolate and potassium bromate which she had purchased from defendant manufacturer as a permanent wave lotion and fixative. The lower court held that since the injury was due to her allergy, the plaintiff did not have a cause of action. On appeal, held, affirmed. The manufacturer could not reasonably foresee the injurious effects of a combination of the chemicals. Although the evidence showed that one out of one thousand persons was allergic to ammonium thioglycolate, the plaintiff was injured only by the use of a combination of the …