Law Commons^™

Federal Procedure-Venue-Use Of State Nonresident Motorist Statute To Imply Waive, Raymond R. Trombadore S.Ed.

Michigan Law Review

An Illinois corporation brought suit based on diversity of citizenship in a United States district court in Kentucky against a resident of Indiana, alleging a cause of action arising from a collision which occurred on a Kentucky highway. Plaintiff secured personal jurisdiction over defendant by serving process upon the Secretary of State of Kentucky who in tum gave notice to the defendant in accordance with the Kentucky nonresident motorist statute. Defendant entered a special appearance and moved that the case be dismissed on the ground of improper venue. The motion was overruled and the Court of Appeals for the Sixth …

Federal Procedure-Removal Of Causes-Meaning Of "Receipt By Defendant" When Service Is On A Nonresident Motorist, Gordon I. Ginsberg S.Ed.

Michigan Law Review

As a result of an automobile accident in Missouri, the plaintiff, a resident of Missouri, brought a damage action in Missouri against the defendant, a resident of Illinois. Service was had on the defendant by serving the Secretary of State of Missouri and sending notice by registered mail to the defendant, pursuant to the Missouri nonresident motorist statute. Service was received by the Secretary of State on January 13, 1951, and notice was received by the defendant on January 20, 1951. The defendant removed the cause to the federal district court on February 9, 1951. The plaintiff moved to remand …

Interstate Commerce - Motor Carrier Act Of 1935 - Power Of States To Regulate Interstate Carriers As To Sizes And Weight, Spencer E. Lrons

Michigan Law Review

The Motor Carrier Act of 1935 provides, in section 204 (a) (1) and (2), that the Interstate Commerce Commission, in performing its duty of regulating interstate motor carriers, shall have power to "establish reasonable requirements with respect to . . . safety of operation and equipment." In section 225, the act authorizes the commission "to investigate and report on the need for Federal regulation of the sizes and weight of motor vehicles. . . ." These two sections, when read together, indicate that Congress felt that sizes and weight regulations deserved consideration apart from general safety regulations. The former are …

Taxation - Interstate Commerce - State Taxation Of Gasoline Of Interstate Motor Carriers, C. Eugene Gressman

Michigan Law Review

An Arkansas statute required the payment of the state tax on all gasoline carried into the state in motor vehicle fuel tanks in excess of 20 gallons. The revenue therefrom was applied for highway purposes. Appellee's buses traveled four different routes, two from Memphis through Arkansas to St. Louis and two from Memphis to cities in Arkansas. For the Memphis-St. Louis trip, 68 gallons were required, only 16 of them being used in Arkansas. These 68 gallons, plus 10 extra ones, were placed in the tank at Memphis. On arrival at the Arkansas line, each bus still had 77 gallons …

Negligence - Violation Of Statute As Negligence Per Se - Exceptions To The Doctrine, John C. Griffin

Michigan Law Review

Plaintiff's intestate was driving along the main thoroughfare when B drove into the main highway from a side street without stopping, thereby colliding with the automobile of the intestate. Two days prior to this accident an automobile owned by S negligently collided with one of the defendant's buses with the consequence that defendant's bus, without negligence on defendant's part, knocked down an arterial stop sign. This stop sign had been erected at the intersection of the main highway and the side street out of which B drove his car. A Washington statute made anyone who should deface, mutilate, tear down, …

Carriers - State Taxation Of Interstate Motor Carriers, Thomas K. Fisher

Michigan Law Review

Appellant, an Ohio corporation, was engaged exclusively in interstate commerce as a common carrier of property for hire by motor vehicle. In 1937 the Georgia legislature passed a Maintenance Tax Act which provided, inter alia, for a tax, graduated according to manufacturer's rated capacity, on each motor common carrier for hire, and a tax, substantially smaller in the respective rated capacities, on each motor vehicle not used as a common carrier for hire. Appellant contested the validity of the tax on the grounds that it was repugnant to the commerce clause of the Constitution and that it violated the equal …

Interstate Commerce - Federal Motor Carrier Act - Extent Of Supersedure Of State Jurisdiction, William Stout Gordon

Michigan Law Review

Prior to the passage of the Federal Motor Carrier Act of 1935, interstate motor carriers were subject to regulation by the states to a limited extent. This power to regulate may be briefly summarized as follows: (1) a state could not require interstate motor carriers to show that their operation was required in the interest of public convenience and necessity; (2) it could regulate to some extent the service and facilities offered by such carriers but it could not regulate their rates; (3) it could require them to carry liability insurance for the protection of third parties but it could …

Negligence - Proximate Cause - Intervening Act - Mere Condition Or Passive Cause, Michigan Law Review

Michigan Law Review

Defendant, driving an automobile at night on a new highway in process of construction, turned therefrom on to the old road with which he was familiar, at such a speed and angle that his headlights did not immediately reveal the condition thereof; the car struck a lantern-marked depression in the road, caused by the excavation by the defendant construction company for a culvert, whereupon the defendant driver lost control, overturning the car, with resultant serious injuries to the plaintiff passenger. From a directed verdict for the defendant construction company, a refusal of the defendant driver's motion for judgment non obstante …

Nuisance Contributory Negligence As Defense, Michigan Law Review

Michigan Law Review

Plaintiff brought action against the county for injuries sustained when his truck fell into an unlighted and unguarded excavation made by the county in the center of the highway for the purpose of repairing a culvert. Held, that defendant's act, though required by statute, was done in such a manner as to constitute active wrongdoing and a public nuisance, to which a plea of contributory negligence is no defense. Hammond v. Monmouth County, (N. J. S. Ct. 1936) 186 A. 452.

Commission Jurisdiction Over Utility Cooperatives, Israel Packel

Michigan Law Review

A group of farmers desire electricity. They propose to form a cooperative, to borrow money and to construct electric distribution lines. They probably will incorporate the cooperative as a stock or non-stock corporation in order to obtain the benefit of limited liability. The cooperative might be formed under a statute specifically enacted to authorize the formation of cooperatives or under a general incorporation statute. Normally, the charter of the cooperative will provide for equality in control by the members or shareholders and for a limited return or no return on capital investment. The cooperative will probably apply to the Federal …

Federal Regulation Of Motor Carriers, Paul G. Kauper

Michigan Law Review

Regulations pertaining to public safety include such matters as requirements concerning drivers' licenses, safety equipment, clearance lights, maximum speed limits, and others of a similar nature. It has already been pointed out that the states in the absence of federal regulation can enforce safety regulations of this kind against interstate motor carriers. It has also been shown that federal regulation in this field is desired in order to relieve interstate motor carriers from diverse and conflicting state laws. The only limitation upon the right of the federal government to impose such regulations upon interstate motor carriers is the general requirement …

Administrative Tribunals-Notice And Hearing

Michigan Law Review

The State Highway Commissioner proceeded against the defendant railroad under a Virginia statute empowering him to order the removal of any railroad grade crossing and the substitution of an elevated road when in his opinion public safety and convenience demanded it. No notice and hearing was given or required, and the only judicial recourse was an action in equity in the event of "arbitrary" action. Held, by a six-three decision, that although it is assumed that a state legislature might order the same action, it by no means follows that an administrative officer may be empowered to act with …

Torts - Contribution Between Joint Tortfeasors - Right Of Insurer To Contribution

Michigan Law Review

One C negligently drove her car into an obstruction on the highway placed there by defendant. The accident occurred at night and the defendant had failed to place a light on the obstruction to indicate its presence to motorists. At the time of the accident M was a guest in C's car and suffered injuries as a result of the collision. Plaintiff, insurance carrier for C, settled with M for the injuries sustained and obtained a release covering the liability of all parties. Plaintiff as subrogee of C's rights brought the present action to recover contribution from …

Process In Actions Against Non-Resident Motorists, Maurice S. Culp

Michigan Law Review

Personal service on the defendant within the jurisdiction of a State is the conventional form of process in personal actions. But considerations of convenience and public need have resulted in recognizing an additional form of process in personal actions against nonresident motorists. Statutes in 35 States authorize the commencement of suit against the non-resident motorist by substituted service on a public official of the State where the cause of action arises; the official is made for this purpose the agent or attorney of the non-resident motorist.

It is proposed herein to discuss (1) the constitutional basis of such legislation, and …

State Taxation Of Interstate Motor Carriers, Paul G. Kauper

Michigan Law Review

Though the Supreme Court has never had occasion to express its views as to the gasoline tax in its relation to interstate motor carriers (see first instalment of this article), it has been confronted with a series of cases involving automobile registration taxes. Every State today imposes such taxes. A brief discussion of the theory and nature of such taxes will aid in understanding their legal consequences.

State Regulation Of Interstate Motor Carriers, Paul G. Kauper

Michigan Law Review

According to Article 1, section 8, of the Constitution, "The Congress shall have power . . . to regulate commerce . . . among the several States . . . . " Is this provision of the Constitution applicable to interstate motor transportation over a public highway, built, owned, and maintained by a State? The provincial view might have been put forward that because the State owns the highways, therefore it should have exclusive control with respect to the commerce passing over them. Whatever force might have been conceded such a view in the early history of our country, when …

Constitutional Law - Due Process - Regulation Of The Business Of The Contract Motor Carrier

Michigan Law Review

Much of the doubt and uncertainty concerning the power of the States to regulate the contract motor carrier has been dispelled by the recent decision of the Supreme Court of the United States in the case of Stephenson et al. v. Binford et al. A Texas statute specifically defined the two categories of common and contract carriers for hire and undertook to regulate the business of each through the agency of the State Railroad Commission; the statute required contract carriers to secure "permits" which were to be granted by the commission only after a hearing and not if the …

Public Utilities - Private Carrier Cannot Be Made A Common Carrier By Legislative Fiat

Michigan Law Review

The appellant, a private carrier for hire, was arrested for operation of motor vehicles upon the state highways without having obtained a certificate of public convenience and necessity from the state railroad commission and without having paid the mileage tax required by the state statute. This statute also gave the commission power to fix and approve rates and schedules, and otherwise regulate carriers. It further stated that, if any of its provisions were held to be unconstitutional, the validity of the remaining portions should be unaffected. Laws of Florida, 1929, c. 13700. In view of this latter provision, the state …

Appeal And Error - General Verdict On Several Counts- Several Specifications Of Negligence As Constituting One Cause Of Action

Michigan Law Review

In a highway accident case the plaintiff made five distinct allegations of negligence: failure to place lights upon a plank which had been placed across a highway; failure to remove the plank; permitting and suffering the plank to be placed where it was dangerous to travel; failure to construct poles, gates, and guards so that persons using the highway would be informed of the dangerous situation; and failure to employ a watchman to warn the public of the existence of the obstruction. Held, there was but one act of negligence, hence but one cause of action. Therefore, an erroneous …

Workmen's Compensation Acts-Gratuitous Help As Casual Employment

Michigan Law Review

The plaintiff, a farmer living by the side of a public highway, went to the assistance of the defendant's truck driver whose truck was mired on the highway. The driver had been instructed to get help. While pulling out the truck with a tractor the plaintiff was injured. Held, the plaintiff was an employee of the defendant, and as such his remedies under the Workmen's Compensation Act were exclusive. Johnson v. Wisconsin Lumber and Supply Co. (Wis. 1931) 234 N.W. 5o6.

Torts-Defective Trees-Duty Of Abutter

Michigan Law Review

While the plaintiff was travelling along the public highway, he was injured by the falling of a decayed tree which stood within twenty feet of the highway upon the adjoining land of the defendant. On sustaining a demurrer to the declaration, the court held that there was no duty upon the rural abutter to inspect the tree. Chambers v. Whelen, et al. (C. C. A. 4th, 1930) 44 F.(2d) 340.

Easements-Abandonment

Michigan Law Review

A driftway across the defendant's land was created by grant, giving the plaintiff his only access to the highway. The need for a way having ceased, it had not been used by the dominant owner for about twenty-five years, and in places was so overgrown as to be almost impassable. Moreover, the defendant moved two buildings in the line of the way, and about five years previously had prevented the plaintiff from cutting brush within its bounds. The lower court held that these facts constituted an abandonment, but this was held to be error on appeal. Byard v. Hoelscher (Conn. …

Quasi-Contracts-Dutiful Intervention-Discharge Of Public Officer's Duty

Michigan Law Review

By statute in Montana the boards of county commissioners were ordered to cause such highways as were necessary for the public welfare to be "laid out, recorded, opened" and maintained. A highway was laid out through the plaintiff's land in 1903, but the county commissioners refused to continue constructing it though requested to do so by the plaintiff, instead compelling him to remove the fences on his property. His entire land being thus thrown open to the public, he constructed the road himself in 1926, with the knowledge of the commissioners, who on its completion immediately accepted it but refused …

Constitutional Law-Eminent Domain-Michigan Constitutional Provision

Michigan Law Review

The necessity for the exercise of the power of eminent domain in a given case is a legislative question into which the courts cannot inquire, unless an abuse of legislative power is asserted. This results from the very nature of the power to take property for a public use, which power in itself is inherent in sovereignty. When the legislature determines to take a piece of property it is exercising the power in the normal manner. If the use is public, no further determination is necessary once the legislative decision is made. The real reason for the rule would seem …