Law Commons^™

On The Early History Of Lower Federal Courts, Judges, And The Rule Of Law, Alfred S. Konefsky

Michigan Law Review

A Review of The Politics of Justice: Lower Federal Judicial Selection and the Second Party System, 1829-1861 by Kermit L. Hall and Federal Courts in the Early Republic: Kentucky 1789-1816 by Mary K. Bonsteel Tachau

Civil Procedure - Jurisdiction - Service Of Process On Foreign Television Corporation, Arnold Henson S.Ed.

Michigan Law Review

Defendant, a West Virginia corporation, operated a television station in Huntington, West Virginia. Its telecasts regularly reached into Boyd County, Kentucky, where part of its customary viewing audience was located. During a twelve-month period in 1954-1955 the corporation derived $71,310.30 in advertising revenue from Kentucky firms, although the contracts for this advertising were made outside Kentucky. In the course of a newscast defendant published an alleged libel against plaintiff, and suit was brought in Boyd County Court. Substituted service of process was made on the Secretary of State in accordance with the Kentucky "doing business" statute, and defendant then removed …

Constitutional Law-Relation Between State And Federal Governments, J. David Voss

Michigan Law Review

Plaintiffs, employees of a United States Naval Ordnance Plant located in an area of exclusive federal jurisdiction within the State of Kentucky, sued in a state court for a declaratory judgment that a license tax on the privilege of working in the City of Louisville, measured by a percentage of all salaries, wages and commissions earned within the city, was not applicable to them. Defendants' demurrer was overruled, and the collection of the tax enjoined. The Kentucky Court of Appeals reversed, and judgment was entered for the defendants. The court of appeals affirmed. On appeal to the United States Supreme …

Future Interests-Powers Of Appointment-Exclusive And Nonexclusive Powers And The Doctrine Of Illusory Appointments, John Houck S.Ed

Michigan Law Review

Testatrix, after making certain specific bequests, devised the residue of her estate to her son George for life. The will stated that upon the death of George, the property should pass to his widow and descendants, "provided, however, that [George] may devise his interest to his widow, his descendants or my descendants." The will further provided that if George should die leaving no widow or descendants, and without having made a testamentary disposition, the property was to pass one-half to George's brother and his descendants, and one-half to a sister. George died without having married and left a will which …

Municipal Corporations--Annexation-Violation Of Due Process, Joseph M. Kortenhof S.Ed.

Michigan Law Review

The City of Silver Grove brought a proceeding to incorporate within its boundaries a parcel of defendant railroad's land under a general law of annexation. It was shown that the land sought to be annexed contained nothing but switchyards, roundhouses, refrigeration plants and other facilities designed exclusively for railroad purposes. It was further shown that the city could make no use of the land nor could it benefit the land in any way since the railroad had complete electrical, sanitation and police facilities. Defendant railroad entered a remonstrance to which the city generally demurred. The trial court sustained the demurrer. …

Negligence-Res Ipsa Loquitur-Justification For A Directed Verdict In Favor Of The Plaintiff, William A. Bain, Jr. S. Ed.

Michigan Law Review

Defendant was driving his car along a straight and unobstructed stretch of gravel road when it ran off the road, overturned, and injured the plaintiff, who was a passenger. There was some conflict in the evidence as to the speed of the car and the only evidence that the defendant could offer as to the cause of the accident was a statement that it could have been the gravel or a tie rod. The trial court directed a verdict for the plaintiff. On appeal, held, affirmed. The car left a straight and unobstructed highway and there is no showing …

Conflict Of Laws-Enforcement Of Foreign Claims For Taxes And Workmen's Compensation Premiums, C. J. Rice S. Ed.

Michigan Law Review

By reason of work done in Ohio, defendant-employer came within the provisions of that state's compulsory workmen's compensation law. The State of Ohio sought to collect insurance premiums due the state fund by an action brought in a Kentucky court. Defendant demurred on the ground that the claim was in the nature of one for taxes, and hence unenforceable extraterritorially. On appeal from an order sustaining the demurrer, held, reversed. Regardless of whether or not the claim for premiums can be classified as one for taxes, Kentucky courts may act as forums for the collection of foreign tax claims. …

Future Interests-Creation Of A Power By Exercise Of General Testamentary Power Held Valid, William R. Hewitt S.Ed.

Michigan Law Review

H in his will created a trust which provided for a life estate for his wife W. The trustee was directed to distribute the corpus of this trust after W's death "to such person or persons as she [W] may limit, nominate, and appoint by her last will and testament." At her death, W's will provided that part of the property over which she had a power of appointment was to continue in trust for S for life, with the power in S to dispose of the corpus absolutely by her last will. S, …

Corporations-Redeemable Stock-Fiduciary Duty Of Directors, Leroy H. Redfern S.Ed.

Michigan Law Review

A federal district court judge introduced an opinion on the fiduciary obligation of corporate directors by stating that "the doctrine of the fiduciary relation is one of the most confused and entangled subjects in corporation law." In Zahn v. Transamerica Corporation the fiduciary duties of corporate directors were discussed extensively by the Third Circuit Court of Appeals. The court not only failed to terminate the confusion and clear the entanglement but may well have added to it by using the fiduciary concept in a new field.

Conflict Of Laws-Limitation Of Actions-Determination Of Place Of Accrual Of Action To Enforce Liability Of Stockholders In Insolvent National Banks, Edwin F. Uhl S.Ed.

Michigan Law Review

Suits in equity were brought in the federal district courts of Ohio and Pennsylvania against resident shareholders of Banco Kentucky Company, a bank-stock holding corporation. The purpose of the litigation was to enforce an assessment under the National Bank Act on the shares of an insolvent national bank which Banco owned. Ohio and Pennsylvania have six year statutes of limitations on such an action. They also have borrowing statutes, barring suit on a cause of action no longer enforceable in the jurisdiction in which it arose. The bank had been authorized to conduct its activities in Louisville, Kentucky, had engaged …

Insurance-Right To Proceeds Of Policy On Life Of Divorced Spouse, A. E. Anderson S.Ed.

Michigan Law Review

Plaintiff was beneficiary of certain life insurance policies issued by defendant on the life of her former husband. All of the policies involved were issued after the marriage and before the divorce, and plaintiff had paid all the premiums on the policies. The administratrix, decedent's second wife, claimed the proceeds on the basis of section 425 of Kentucky Civil Code of Practice which provides for restoration of property obtained from the other spouse by reason of the marriage upon judgment for divorce. Held, where the wife has procured and paid for insurance on the life of her husband a …

Libel And Slander - Absolute Privilege - Affidavit To Support Petition To Set Aside Judgment

Michigan Law Review

Judgment in a case against Dorothy Mann by the administratrix of a certain estate was rendered in April, 1934. Action to vacate this judgment was instituted in September, 1936. In May, 1936, Irving Mann, defendant in the principal case, executed an affidavit which contained libellous matter defaming the present plaintiff; this affidavit was used to support the petition to set aside the earlier judgment. Held, the defamatory affidavit would not support plaintiff's defamation action; the occasion was one of absolute privilege. Schmitt v. Mann, (Ky. 1942) 163 S. W. (2d) 281.

Federal Courts - What Is An Equitable Claim To Real Property Within The Meaning Of Section 57 Of The Judicial Code?, Charles J. O'Laughlin

Michigan Law Review

Plaintiff, an Ohio corporation, was the lessee of land in Kentucky. It entered into a contract with defendant lessor, a resident of the District of Columbia, to renew the lease. Defendant failed to carry out his agreement, and plaintiff" sued for specific performance of the contract to lease in the United States District Court for Eastern Kentucky, jurisdiction being based on diversity of citizenship. Plaintiff was unable to obtain personal service upon defendant, but obtained service by publication under section 57 of the Judicial Code, which authorizes the court to take jurisdiction and to allow service by publication in "any …

Constitutional Law - Validity Of Voting Machine In General Election - Constitutional Construction, Michigan Law Review

Michigan Law Review

Pursuant to statutory provisions the fiscal court of Jefferson County, Kentucky, appropriated $1,000 for renting voting machines to be used in the general election of 1938. The county on relation of its attorneys filed suit for a declaratory judgment on the constitutionality of the statute. The relators appealed from a judgment declaring the act valid. Held, the statute authorizing the use of voting machines in popular elections is a violation of section 147 of the Kentucky Constitution which provides for a "secret official ballot, furnished by public authority to the voters at the polls, and marked by each voter …

Recent Developments In Actions Against Nonresident Motorists, Maurice S. Culp

Michigan Law Review

When this subject was discussed several years ago, statutes in thirty-five states authorized service of process upon some state official in actions filed against nonresident motorists. The passage of such legislation has continued. Today, out of the forty-eight states and the District of Columbia, apparently only Missouri, Nevada and Utah do not make some provision for such service.

It is proposed herein to discuss the new statutes which have been enacted since the previous article was written, to consider significant changes and developments in older legislation, and to survey the recent judicial decisions interpreting these process statutes.

Quasi-Contracts - Use And Occupation - Recovery Of Benefits Received By A Trespasser, Walter Probst Jr.

Michigan Law Review

The defendant had discovered and developed by considerable advertising the Great Onyx Cave in Kentucky. After a survey ordered in an earlier equity proceeding it was discovered that one-third of the cave was under plaintiff's land. The only opening was upon defendant's land. Through this opening had entered a large number of visitors who had paid the defendant admission fees for the privilege. Held, plaintiff could recover in assumpsit one-third of the net profits earned by the defendant from the cave. Edwards v. Lee's Admr., (Ky. 1936) 96 S. W. (2d) 1028.

Trade Marks-Effect Of Licensing Use Of Trade Mark By Sales Agent On Rights Of Owner Of The Mark

Michigan Law Review

For twenty-five years plaintiff company was licensed by X manufacturing company to sell furnaces made by X in Kentucky and to use the trade-mark "Monarch" thereon along with plaintiff's name, leaving X's name off the furnace. After the termination of this license plaintiff continued to sell other furnaces with the mark "Monarch" affixed thereto. Four years later X licensed defendant company to sell X's furnaces in Kentucky and to use the mark "Monarch" on the same. Plaintiff brought suit to enjoin defendant's use of said. mark on furnaces sold in Kentucky. Held, licensing use of mark by X to …

Trusts-Possible Extension Of The Tentative Trust Doctrine

Michigan Law Review

The settlor established a trust for the plaintiff, his daughter, appointing a trust company as trustee. The trust deed expressed the purpose of adding to the estate, but no additional property was delivered to the trustee. Later the settlor rented a deposit box from the trust company in the name of the plaintiff by himself as agent and informed its officers that he was creating another estate for the plaintiff for her use later in life, that he would manage the estate, and that he did not want plaintiff to know about the box. From time to time he placed …

Bills And Notes - Promissory Notes - Negotiability At Common Law

Michigan Law Review

Defendant contractors left a check for materialmen in the hands of a third party who appropriated the check to his own use and then, in lieu thereof, gave his own note to the materialmen who endorsed it to a bank and credited the contractors with the amount of the note. In an action by the materialmen against the contractors for services rendered and materials furnished, held, such acceptance and negotiation constituted a payment of the materialmen's claims. Riedman v. Macht, (Ind. App. 1932) 182 N. E. 87.

Anti-Chain Store Legislation, Hugh A. Fulton

Michigan Law Review

During the past few years chain store merchandising has made such serious inroads upon the trade of independent wholesale and retail merchants that they have been forced to use every expedient within their reach in order to survive. They have banded together in order to achieve the economies which have made chain store merchandising so successful and have been rewarded with a large measure of success and even with the hope of competing on an equal basis with the average chain system. But they have not been satisfied with merely seeking to operate on a smaller margin of profit. They …

Gifts-Necessity Of Acceptance

Michigan Law Review

The deceased was president of a water company and held stock in it. After his death the widow claimed part of this stock as a gift from her husband. A written assignment of the stock claimed, signed by the deceased, was introduced in the evidence to substantiate her claim. There was also evidence that the deceased had informed others that he had transferred most of his stock to his wife. But there was no proof that the wife knew of the transfer until after the death of her husband. Held, that an unconditional acceptance on the part of the …

Evidence-Admission By Party Litigant-Substantive Proof Or Impeachment

Michigan Law Review

ln an action against an employer for personal injuries, after the plaintiff had testified as to negligence of a fellow servant, his signed statement detailing a contrary account of the injury was introduced. The trial judge charged that the statement was admissible only for the purpose of contradicting the plaintiff's testimony. Held, it was admissible as a declaration against interest with probative value, as well as to impeach the plaintiff's testimony. Pub. Utilities Corp. v. Carden (Ark. 1930) 32 S.W.(2d) 1058.

Constitutional Law-Due Process-Police Power-Junk Yards

Michigan Law Review

The City of Ashland, Kentucky, acting under a specific power to license and regulate junk yards granted to it by the legislature under section 3058-2 Ky. Stat. (Carroll, 1922) passed an ordinance requiring applicants for licenses to operate junk yards within the city of Ashland. "to make and execute with the Clerk of the City of Ashland, Kentucky, a permit signed by the applicant providing that the Police Department * * * may inspect and search the said shop or place of business." The appellant complied with all other requirements, but refused to execute the permit: Because the clerk would …

Master And Servant-Effect Of Servant's Ownership Of Instrumentality On Liability Of Master

Michigan Law Review

Defendant contracted with miners to dig out clay at ton-rate, the miners to furnish their own equipment. They buried their powder to prevent theft; but some boys found it and were injured in its explosion. Held, the miners were independent contractors, but that, if they were employees, they did not act within the scope of their employment in burying their powder. General Refractories Co. v. Mozier (Ky. 1930) 30 S.W.(2d) 952.

Negligence-Implied Invitation

Michigan Law Review

The plaintiff's intestate was killed as a result of the defendant's failure to keep in repair a footway paralleling a railroad and vehicular toll bridge. Held, that the defendant, by permitting the public to use this footway, had impliedly invited its use and hence owed the deceased the duty of keeping the premises in a reasonably safe condition. Louisville, and Nashville R.R. v. Snow's Admr. (Ky. 1930) 30 S.W.(2d) 885.

Insurance-Automobile Club Membership-Contract To Furnish Legal Services

Michigan Law Review

Complainant automobile club agreed to furnish its members with the services of an attorney, but not to pay judgments rendered, in any action brought by or against any member as a result of the ownership, or operation, of his automobile. Held, a contract of insurance. Allin v. Motorists' Alliance (Ky. 1930) 29 S.W. (2d) 19.

Aliens-Right To Hold Propsrty-Effect Of Statutes

Michigan Law Review

An alien testator devised land to her son, which property was seized during the World War by the defendant Alien Property Custodian as belonging to an alien enemy. Von Zedtwitz v. Sutherland, 58 App. D. C. 153, 26 F.(2d) 525. The plaintiffs sued the son in Kentucky, where part of the land was located, and the Alien Property Custodian in this suit to recover the property on the theory that after the eight-year period which the laws of Kentucky allowed the alien heir in which to dispose of the realty, the title vested in them as next of kin …

Corporations-Consolidation And Merger-Liability For The Obligations Of The Old Company-American Railway Express Company Cases

Michigan Law Review

Following the taking over of the railroads under proclamation of the President dated December 26, 1917, it was suggested by Mr. McAdoo, Director General of Railroads, that various express companies whose contracts with the railroads for transportation of goods pursuant to the general conduct of the express business had been virtually annulled by the proclamation, should form a new corporation, transfer to it property used in the express business and receive in consideration stock in the new company. The Director General made the suggestion to expedite the nation's war time transportation, and it was immediately accepted by the companies. He …

A New Application Of The Right Of Privacy

Michigan Law Review

The right of an individual to privacy in matters personal to him has again been expressly recognized by an interesting application of the doctrine in a recent Kentucky case. The defendant painted a sign on his garage window in large letters to the effect that "Dr. W. R. Morgan owes an account here of $49.67. And if promises would pay an account this account would have been settled long ago. This account will be advertised as long as it remains unpaid." The plaintiff brought suit for damages alleging great mental pain, humiliation, and mortification, and that it tended to expose …

Life Tenant And Remainderman-Income From Corporate Shares In Trust-Extraordinary Cash Or Stock Dividends

Michigan Law Review

A testator devises a block of corporate shares in trust,--the income to go to a life tenant for life, remainder to another as remainderman. So long as dividends are paid regularly, and in cash, distribution is a simple matter for the trustee. Dividends declared after the testator's death and before the death of the life tenant, are income and go to the life tenant; the rule operates regardless of when the profits which justify the declared dividends were earned. A real problem arises, however, when the corporation allows a surplus to accumulate for some time and then declares an extraordinary …