Law Commons^™

Bankruptcy - Corporate Reorganization - Section 77b - Chapter X Of The Chandler Act - Right Of Creditor To Question The Good Faith Of A Reorganization Petition, Edmund O'Hare

Michigan Law Review

Appellants, two creditors of debtor, objected to the approval of a reorganization petition filed under section 77B by appellees, who were also creditors of debtor, claiming that the petition was not filed in good faith. Held, that appellants had sufficient standing to question the approval of the petition, since any single creditor may raise the issue of the good faith of the petitioners. Snyder v. Fenner, (C. C. A. 3d, 1939) 101 F. (2d) 736.

Appeal And Error - Reviewability Of An Order Granting A New Trial, Robert M. Warren

Michigan Law Review

When a trial court sets aside a verdict and grants a new trial, the order may or may not be reviewable depending on the jurisdiction. In some jurisdictions which permit a review, the aggrieved party must save an exception to the order and assign this ruling as error when an appeal is ultimately taken from a subsequent appealable decision. In other jurisdictions, he may take an appeal directly from the order.

This comment will discuss (1) the common-law practice which permitted no review of an order granting a new trial; (2) the practice allowing the aggrieved party to save an …

Corporations - Recapitalization By Statutory Merger And Consolidation, Robert Meisenholder

Michigan Law Review

When changes in the capital structure of a corporation are attempted by amendment or by voluntary reorganization plans, such efforts at recapitalization are often blocked by dissenting stockholders. As a result, attempts have been made to recapitalize and force dissenting stockholders to go along by following the procedure of the merger and solidation statutes. The extent to which these statutes governing merger and consolidation can be used in order to change the capital structure of a corporation will be examined here. This discussion will consider, first, the governing rules concerning possible .changes in a stockholder's interest and rights when two …

Libel And Slander - Publication - Common Interest In Subject Matter, Michigan Law Review

Michigan Law Review

Attorneys for plaintiff wrote a letter to a bus company claiming damages for an injury resulting from the negligence of the bus company. This letter was referred to the insurer of the bus company. Insurer, in reply, wrote a letter charging the plaintiff with an attempt to defraud, calling him a shyster lawyer, and making other disparaging remarks. Although intended for the bus company, this letter was inadvertently sent to plaintiff's attorneys. In a libel action brought against the bus company and the insurance company, the defendants moved to dismiss, claiming that the communication was privileged. Held, between the …

Gifts - Marriage And Divorce - Restitution Of Gifts Given In Contemplation Of Marriage, Michigan Law Review

Michigan Law Review

Plaintiff became engaged to Loretta Burns in 1914 and gave her a diamond ring. This engagement was ended in 1917 and the ring returned. A period of estrangement followed. In 1921, plaintiff gave her a dinner ring, in 1926 a wrist watch, in 1927 an onyx ring, in 1928 a diamond ring. Each gift was given on Christmas Eve. Loretta died in 1935, leaving defendants as heirs and next of kin. Plaintiff filed a suit in replevin and later a declaration in trover and conversion for these gifts. Held, after concluding that the evidence warranted a finding of an …

Municipal Corporations - Indebtedness - Use Of Mandamus To Compel Payment Of Judgment, John L. Rubsam

Michigan Law Review

Petitioner sought a peremptory order directed to the council of the city of Long Beach, to compel them to include in the 1939 budget a sum sufficient to pay a judgment obtained for materials furnished to the city. Held, the denial of application by the lower court was not an abuse of discretion, since payment of the judgment would have given the petitioner a preference over other creditors of the same class inasmuch as there were insufficient funds available to pay all claims of such class without crippling the city or working unusual hardship on taxpayers. Coombs v. Edwards …

Municipal Corporations - Status Of A City Manager - Are His Functions Primarily Executive Or Legislative?, John H. Pickering

Michigan Law Review

When defendant city adopted the city-manager form of municipal government, it duly abolished by ordinance the board of police and fire commissioners and expressly assigned the board's powers and duties to the city manager. Among such powers was that of recommending salary decreases for firemen and policemen, without which recommendation a decrease by action of the council was invalid. After the abolition of the board of police and .fire commissioners, the council decreased the salary of plaintiff policeman without previous recommendation by the city manager. Plaintiff claimed that such action was invalid, and sued to recover the amount of the …

Bills And Notes - Accommodation Paper - Defenses Which Can Be Asserted Dy Maker Against One Not A Holder In Due Course, Robert A. Solomon

Michigan Law Review

The defendant, at the request of her husband, signed a blank promissory note. After making the note payable to himself, the husband discounted the note before maturity at the plaintiff bank. In an action by the bank against the wife, the accommodation maker claimed that the bank took in bad faith and that the negotiation to the bank was a diversion from the intended purpose of the accommodation. The plaintiff bank sought to recover upon the ground that the defendant was liable to it as a holder for value irrespective of whether it was a holder in due course. Held …

Landlord And Tenant - Assumption Of Risk Of Defective Stairway In Landlord's Control By Employee Of Tenant, John S. Pennell

Michigan Law Review

Plaintiff, employee of a tenant in defendant's building, fell and suffered injuries while using a stairway designed for the use of the tenants and their employees. The stairway was in the control of the landlord, and had long been in a defective condition. It was the only means of ingress and egress. In the plaintiff's action against the landlord the trial court granted a non-suit on the ground that plaintiff had voluntarily assumed the risk of the defective stairway by her use thereof. Plaintiff appealed. Held, the question whether the plaintiff had voluntarily assumed the risk is a question …

Negligence - Escalator Not An Attractive Nuisance, Michigan Law Review

Michigan Law Review

Plaintiff, a four-year-old child, accompanied his mother into defendant's department store. Having wandered over to a nearby escalator, he inserted his hand into the aperture where the steps go under the floor, and suffered the loss of two fingers for which injury this action was brought. Held, defendant's motion to dismiss the action was properly granted below, since an escalator, being an ordinary, common instrumentality constructed for ordinary and common use, is not an attractive nuisance. Kataoka v. May Department Stores Co., (D. C. Cal. 1939) 28 F. Supp. 3.

Negligence - Liability For Injuries Following Emotional Disturbance - Fright Due To Plaintiff's Own Peril, Michigan Law Review

Michigan Law Review

Plaintiff, a woman in good health, was caught in the defectively operated doors of the defendant's bus, as she was about to follow other passengers off the bus. She was released within two minutes. The doors of the bus being encased in rubber, plaintiff received no bruises, abrasions or other physical injuries; but she did suffer thereby a nervous disturbance manifesting itself in paralysis in several parts of her body. Held, plaintiff cannot recover for injuries resulting from emotional disturbance caused by the defendant's negligence because there was no physical injury concurrent with the emotional disturbance. Davis v. Cleveland …

Taxation - Federal Estate Tax - Life Insurance Payable To Specific Beneficiary, Roy L. Steinheimer

Michigan Law Review

Six life insurance policies were taken out by decedent upon his own life between March 19, 1925 and January 2, 1929. On July 20, 1932 the decedent, by an instrument in writing, made an assignment of the policies to his wife and named her the beneficiary under the policies. From the date of the assignment until the date of his death, the decedent did not possess any incidents of ownership of the policies though he continued to pay the premiums. The wife of the decedent sued to recover the amount of the tax, assessed and paid on the net proceeds …

Sales - Implied Warranty By Victualler, Michigan Law Review

Michigan Law Review

Plaintiff purchased a meal at defendant's restaurant, in connection with which he was served contaminated drinking water obtained from defendant's well; he became ill from drinking the water. Plaintiff sued on the theory of implied warranty by defendant of the fitness of the water sold under the Uniform Sales Act, and on the ground that the service of the contaminated water in violation of the Ohio Pure Food Law constituted negligence by defendant. Held, plaintiff may recover on either theory. Yochem v. Gloria, Inc., 134 Ohio St. 427, 17 N. E. (2d) 731 (1938).

Trading In Securities By Directors, Officers And Stock.Holders: Section 16 Of The Securities Exchange Act, Kenneth L. Yourd

Michigan Law Review

The prime objective of the Securities Exchange Act is the establishment and maintenance of a free and open market for trading in securities; a free and open market in the sense that the prices obtaining thereon represent an evaluation of worth based upon a full knowledge in all traders of all pertinent facts and circumstances. In an attempt to achieve a realization of the ideal concept of a free and open market, the framers of the Securities Exchange Act have been careful to bring within the purview of the enactment all elements which they believed in any way were reflected …

Assault And Battery - Intent To Harm - Negligence - Liability For Injury To An Allergic Person, Michigan Law Review

Michigan Law Review

Defendant's agent conducted in plaintiff's store a demonstration of a fly-spray, manufactured by another company, intending to interest plaintiff in retailing it. The spray was placed in an electric difusor which gave off a fly-killing vapor. Plaintiff's wife, unknown to defendant, was allergic to pyrethrum, an ingredient of the spray, and became violently ill upon coming in contact with the vapor. An action for assault and battery was brought. Held, defendant was not liable in the absence of an intent to do harm. Brabazon v. Joannes Bros. Co., (Wis. 1939) 286 N. W. 21.

Torts - Liability Without Fault - Rylands V. Fletcher - Necessity For Control Of Premises, Charles F. Dugan

Michigan Law Review

Defendant, under a contract with the federal government to dredge the Chesapeake and Delaware Canal, deposited the effluent material dredged from the canal upon a disposal area owned by the government. The work was carried on under government supervision, and neither the government inspectors nor defendant's employees knew, nor apparently could they have known, of any defect in the retaining wall which had previously been built by the government to hold back the material. Defendant had had nothing to do with prior dredging operations, by which the level of fixed earth behind the retaining wall had been raised considerably. After …

The Test Of The Employment Relation, Gerald M. Stevens

Michigan Law Review

Labor's status is the subject of what seems to be an interminable war, with campaigns in the courts, on picket lines, in conference rooms, and in legislative halls. The prominence of these battles increases, if anything, the obscurity in which a closely related conflict is being worked out. For as long as there are important distinctions to be made on the basis of whether an employment relation exists, there is fairly certain to be at least some argument over the existence of that relation.

Dicey's Law Of The Constitution: A Review, William A. Robson

Michigan Law Review

The first edition of this celebrated work appeared in 1885; and such was its vogue until ten or fifteen years ago that there is scarcely anyone over thirty-five years of age who studied law, politics or constitutional history at a university or professional law school in England and the British Dominions who was not "brought up" on Dicey. "Dicey on the Constitution" was regarded for generations not merely as a perfect, accurate and comprehensive statement of the principles of the British system of government; but also as a reliable explanation of its superior virtues and liberties. The book attained an …

Contracts - Vendor's Agreement Not To Compete - Construction Of The Areement, Michigan Law Review

Michigan Law Review

A South Carolina statute prohibited labor of employees in enumerated manufacturing and mercantile establishments for more than fifty-six hours per week or more than twelve hours in any one day. Plaintiffs were druggists who brought suit to restrain the commissioner of labor from enforcing the statute. A temporary restraining order was issued and the commissioner of labor appealed. Held, the statute was unconstitutional as in violation of the due process and equal protection clauses in both state and federal constitutions. Gasque, Inc. v. Nates, (S. C. 1939) 2 S. E. (2d) 36.

Criminal Law And Procedure - Interpretation Of Statute, Michigan Law Review

Michigan Law Review

Convicted of the statutory crime of falsely uttering a bank check, defendant appealed on the ground that the instrument in question was a promissory note. It was in appearance and form a check except for the substitution of "will pay" for "pay" and the addition of the words "payable at" before the name of the bank. Held, affirmed, the court construing the instrument as a check. State v. Doudna, (Iowa, 1939) 284 N. W. 113.

Torts - Adjoining Landowners - Duty Of Adjacent Owner To Airport Operator - Dangerous Instrumentalities, Jerome Dick

Michigan Law Review

Plaintiff operated an airport which was adjacent to defendant public utility's uninsulated electric power transmission line. Since the airplane could not enter or leave the airport without flying low over defendant's adjacent right-of-way, the wire constituted an obstruction to their means of ingress and egress; in addition there was the danger of electrocution from contact with the wires. Plaintiff contends that this constitutes an interference with his business and seeks damages. Held, for defendant; under the statute plaintiff is a trespasser because he interferes with the reasonable use of defendant's property and a landowner is under no obligation to …

Inconsistencies In Public Utility Depreciation, Robert D. Haun

Michigan Law Review

Depreciation is a matter of valuation and of the determination of the cost of rendering public service. It is only incidentally related to replacements, and accounting for depreciation will not necessarily provide for replacements. Since depreciation does have to do primarily with valuation and determination of the cost of rendering service, and since capital devoted to public utility use is subject to regulation, it would seem that consistency in principles is not only desirable but attainable. It is the purpose of this article to examine the cases decided by the courts and by the regulatory commissions of the various jurisdictions …

Taxation-Federal Estate Tax-Joint Tenancy-Retroactivity, Richard S. Brawerman

Michigan Law Review

The recent decision by the Supreme Court in United States v. Jacobs deals with the troublesome issue of retroactivity under the federal estate tax law. The decedent whose estate was involved in this case had paid the entire consideration for certain real estate which was conveyed to himself and his wife as joint tenants. This transaction took place in 1909. The decedent died in 1924, shortly after the effective date of the Revenue Act of that year. The Commissioner of Internal Revenue included the entire value of the real estate in the decedent's gross estate. The executors paid the tax …

Evidence - Admissibility Of Hospital Records As Business Entries, John S. Pennell

Michigan Law Review

Following the report of the Commonwealth Fund Committee, in which they advocated the adoption of a model act to govern the admission of business entries as evidence, a comparatively small number of states have enacted legislation of this kind, either the model act or an act of similar nature. The extent of this comment is to show: (1) in what states hospital records have been held not to be admissible as business entries, the states where there has been no decision on the subject, and the states where the status of the rule is in doubt; (2) the states where …

Constitutional Law- State Regulation Of Hours Of Labor - Police Power And Due Process, Michigan Law Review

Michigan Law Review

A South Carolina statute prohibited labor of employees in enumerated manufacturing and mercantile establishments for more than fifty-six hours per week or more than twelve hours in any one day. Plaintiffs were druggists who brought suit to restrain the commissioner of labor from enforcing the statute. A temporary restraining order was issued and the commissioner of labor appealed. Held, the statute was unconstitutional as in violation of the due process and equal protection clauses in both state and federal constitutions. Gasque, Inc. v. Nates, (S. C. 1939) 2 S. E. (2d) 36.

Banks And Banking - Duty Of Depositor To Determine Status Of His Account, James D. Ritchie

Michigan Law Review

Plaintiff's bookkeeper, who, as defendant bank admittedly knew, had authority only to indorse and deposit commission checks to plaintiff's account, embezzled considerable money between 1926 and 1931 by taking some of the proceeds in cash or drafts. In the passbook and in defendant's own records only the net transactions, not the total amount of the checks, were recorded. Plaintiff discovered the fraud in 1936 and now sues the receiver five years after the bank closed. Held, that plaintiff, charged with constuctive knowledge of the fraud, which reasonable examination would have revealed, is guilty of negligence and therefore barred from …

Evidence - Criminal Law And Procedure - Admissibility Of Recording Made On Device At Receiving End Of Telephone Conversation, William H. Klein

Michigan Law Review

In a prosecution for conspiracy to violate the narcotic laws, defendant objected to the admission of a recorded telephone conversation between himself and an informer, taken down by the latter on a device attached to the receiver. Defendant contended that this was inadmissible under the rule of Nardone v. United States. Held, the evidence was not intercepted, therefore not within the purview of the Federal Communications Act and, consequently, admissible despite the Nardone decision. United States v. Yee Ping Jong, (D. C. Pa. 1939) 26 F. Supp. 69.

Libel And Slander - Libel Per Quod - Necessity Of Special Damages, Michigan Law Review

Michigan Law Review

In her petition, the plaintiff alleged that she had been defamed by the defendant and claimed damages therefor. The allegations were that the defendant had executed a letter and false wage assignment and had sent them to the employer of the plaintiff, whereby the plaintiff was embarrassed and humiliated, and held up to ridicule and scorn. The lower court sustained a demurrer to the petition, and an amended petition was stricken from the files and dismissed. Held, a good cause of action had been stated. The court said: "It is not and is not claimed to be a cause …

Limitation Of Actions - What Is A "Written" Contract Within Statute?, Michigan Law Review

Michigan Law Review

Plaintiff sued on a clause in a deed in which the grantee assumed and agreed to pay a mortgage indebtedness therein specified. This obligation in the deed, being unsigned by the party to be charged, was held to be an unwritten contract by the lower court, and therefore barred by the six-year statute of limitations. Plaintiff appealed. Held, the contract, though unsigned by the party to be charged, was "in writing," and therefore the statutory fifteen-year period of limitations applied. McCormick v. Taft, (Ohio App. 1938) 22 N. E. (2d) 510.

Negligence - Contributory Negligence - Standard Of Care - Objective Or Subjective?, John H. Pickering

Michigan Law Review

While anchoring a guy wire for a hay carrier on his farm, plaintiff suffered injuries caused by contact between the guy wire and a high tension line owned by defendant. After an answer denying negligence and setting up the defense of contributory negligence on the part of plaintiff, defendant had a directed verdict. Held, that the alleged contributory negligence of plaintiff was a question of fact for the jury which was to be guided by the standard of care of the ordinary, careful, prudent man in the situation of the injured party in all respects, the court saying, "We …