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Constitutional Law-State Taxation Of Gross Receipts From Interstate Commerce, John C. Walker

Michigan Law Review

A New York statute imposed a tax of two per cent on the gross receipts of all utilities doing business within the state. The State Tax Commission construed this statute as applicable to the total receipts of petitioner derived from transporting passengers for hire from a point within New York to another point within the same state over a route which passed through New Jersey and Pennsylvania. The state courts affirmed the determination of the commission, and the petitioner appealed. Held, reversed and remanded. The transportation was interstate, and an unapportioned tax on the gross receipts derived therefrom was …

Negligence-Liability Of Public Amusement Operators For Dangerous Premises, Ruth Wanamaker

Michigan Law Review

While a patron at a dog race track, plaintiff suffered injuries when she slipped on an empty beverage bottle left in the aisle of the grandstand. In an action against the proprietor, a motion for directed verdict in favor of defendant was granted on the theory that plaintiff had failed to show defendant's actual or constructive knowledge of the presence of the bottle; the trial court further stated that if constructive knowledge were relied on, the plaintiff must prove that the bottle had been in the grandstand long enough for the owners, in the exercise of reasonable care, to have …

Soviet Civil Law: Private Rights And Their Back-Ground Under The Soviet Regime Comparative Survey And Translation Of The Civil Code; Code Of Domestic Relations; Judiciary Act; Code Of Civil Procedure; Laws On Nationality, Corporations, Patents, Copyright, Collective Farms, Labor; And Other Related Laws. Volume 2., Vladimir E. Gsovski

Michigan Legal Studies Series

For centuries, jurisprudence has been built up and developed in terms of a more or less comparable body of concepts: family, private ownership, individual rights, and the State, the necessity of which was challenged in the original program in the name of which the soviet government assumed the reins of power. What then is the fate under the soviet regime of the legal concepts thus far operative in all civilized societies? This book seeks to offer material for the answer to questions of this nature. The principal aim of the author has been to inquire into the legal protection and …

Theory Of Pleading A Survey Including The Federal Rules, William Wirt Blume

Michigan Law Review

In an often-quoted report of a committee of the American Bar Association, Roscoe Pound stated: "Pleadings have four purposes: (1) The first is to serve as a formal basis for the judgment. This is the oldest function, and one that goes back before the time of rational, as distinguished from purely mechanical trial of issues. . . . (2) Another is to separate issues of fact from questions of law .... (3) Another is to give litigants the advantage of a plea of res judicata if molested again for the same cause .... (4) Finally, pleadings exist to notify parties …

Courts--Process--Nonresident Motorist Service Statute--Service On "Driver" As Within Provision Permitting Service On "Owner", C. C. Grunewald S.Ed.

Michigan Law Review

While in Arkansas, appellee, an Illinois resident, drove a third party's automobile and was involved in a collision in which plaintiff's intestate was killed. Plaintiff instituted a negligence action in an Arkansas court against appellee, who had previously returned to Chicago, by service and notification pursuant to the Arkansas nonresident motorist service statute. Appellee appeared specially and moved to quash the service as ineffective under the statute. On appeal from the lower court's decision sustaining the motion, held, affirmed. The statutory language which permitted service on a nonresident "owner" did not allow service on a nonresident "driver." Kerr v. …

Discovery -- Scope Of Examination --Attorney-Client Privilege Under Ohio And Federal Procedures, Carson C. Grunewald S.Ed.

Michigan Law Review

During a deposition arising out of a suit against the Cleveland Transit System for its alleged negligent operation, Hyde, defendant's general manager, was ordered under subpoena duces tecum to produce reports of the defendant company and answer questions disclosing "all the busses ( the numbers, and names and addresses of the drivers) from 11:30 P.M. September 25, 1944, to 12:15 A.M., going south on East 152 Street." Hyde and the company attorney who possessed the accident reports refused to produce them or answer questions concerning them, claiming that the reports were within the attorney-client privilege. The deponents were taken into …

Torts - Liability For Intentionally Inflicted Emotional Disturbance, Donald D. Davis

Michigan Law Review

Plaintiff alleged that defendant used vile and abusive language toward her on a public street; that defendant knew she was advanced in pregnancy, highly nervous and sensitive; and that by reason of defendant's language she suffered an emotional disturbance resulting in impairment of health. The trial court rendered judgment in favor of the defendant after the opening statement of plaintiff's counsel. The court of appeals reversed the judgment of the trial court and held that plaintiff was entitled to submit her evidence to the jury. On appeal, held, reversed. Plaintiff did not allege that she was put in fear …

Venue-Forum Non Conveniens-Transfer Of Venue In Federal Employers' Liability Cases Under The New Judicial Code, Donald D. Davis

Michigan Law Review

Plaintiff, a resident of Texas, brought action in a United States district court in Minnesota to recover damages under the Federal Employers' Liability Act for injuries received in an accident in Texas. Defendant, in accordance with section 1404(a) of the United States Judicial Code, moved for a change of venue to Texas for the convenience of parties and witnesses and in the interest of justice. Plaintiff resisted the transfer solely on the ground that the section did not apply where venue was granted under the F.E.L.A. Held, by a two judge district court, motion granted. Hayes v. Chicago, R.I. …

Wills-Validity Of Attestation On Separate Sheet Of Paper Not Physically Attached To Will, Myron J. Nadler

Michigan Law Review

Testatrix drew an instrument consisting of a single sheet of paper, intending it as her will. In the presence of a notary public, three witnesses observed the instrument with testatrix' signature thereon and her acknowledgment of it as her will, but did not sign it. The document was then placed in an envelope. A separate instrument of attestation which referred to the will was prepared by the notary and signed by the testatrix and the attesting witnesses. This instrument and the envelope containing the will were both placed in another folder which was then deposited with the proper officials. Probate …

Constitutional Law-Due Process-Right Of Accused To Writ Of Error Coram Nobis, Bernard L. Trott

Michigan Law Review

Petitioner, a nineteen year old Negro, was convicted of rape in a circuit court of Alabama. The conviction, largely predicated on a confession made by petitioner on July 3, 1946, to the local police, was affirmed on April 24, 1947, by the Supreme Court of Alabama. This petition was subsequently initiated before the Alabama Supreme Court seeking an order granting permission to petition the trial court for a writ of error coram nobis. The request was accompanied by an allegation that petitioner's confession had been induced by mental and physical torture administered by the local police. At no time during …

Freedom Of Silence: Constitutional Protection Against Governmental Intrusions In Political Affairs, Charles B. Nutting

Michigan Law Review

Paradoxically enough, the "right" to be silent has been vociferously asserted by some of our most loquacious citizens. The current activities of Congressional investigating committees and the possible enactment of laws regulating participation in certain political affairs make timely a consideration of the basis for the assertion of the "right" and an attempt to determine the extent to which it may be said truly to be protected against intrusions by the state or national governments. It is proposed first to consider the question of secrecy in connection with the elective process itself and later to extend the inquiry into problems …

Corporations-Appraisal Statutes-Time Within Which Demand For Appraisal Must Be Made, Myron J. Nadler S.Ed.

Michigan Law Review

A resolution to merge the corporation in which plaintiff held shares with defendant corporation was adopted by the shareholders over plaintiff's objection. Eight days later, plaintiff made written demand on defendant corporation for payment of the fair value of his shares. The statute required that such demand be made upon the surviving corporation "within twenty days after the merger . . . was effected," and provided that a merger became effective upon issuance of a certificate of merger by the Department of State. The articles of merger were not promptly filed and the certificate of merger did not issue until …

New Trial - Use Of Testimony Of Jurors To Set Aside Verdict, R. J. Nordstrom S.Ed.

Michigan Law Review

Whether or not testimony of a juror is admissible for the purpose of setting aside a verdict is a question upon which the cases are in conflict. Much of the contrariety of opinion is due to a failure of courts to distinguish between the two basic factual situations which present the problem. The juror's testimony may be sought to be introduced to show either: (1) that, due to some misunderstanding, his own thought processes were misdirected in arriving at his final vote; or, (2) that he observed the open misconduct of a fellow juror. At the outset it should be …

Labor Law-Compulsory Arbitration Of Labor Disputes, James A. Sprunk S.Ed.

Michigan Law Review

In 1947, seven states adopted legislation for compulsory arbitration of labor disputes in public utilities. Four more provide for seizure of such industries in cases of strikes or lockouts, and one prohibits picketing or interference with the service of a public utility. In addition, procedures for conciliation, mediation, or voluntary arbitration with suspension of the right to strike or lockout during such procedures, are provided by still others. Such legislative activity reflects the growing public concern regarding labor disputes and indicates that many state legislators are convinced that to secure industrial peace more is required than the mere imposition of …

Federal Courts-Appeals-Federal Rule 54(B) And The Final Judgment Rule, W. Stirling Maxwell S.Ed.

Michigan Law Review

The Judicial Code provides that "the circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions . . . in the district courts, in all cases save where a direct review may be had to the Supreme Court . . . . " But what is a final ( that is, appealable) decision? The final judgment rule, originated by the English common law courts and embodied in the Federal Judiciary Act of 1789, was stated by Justice Brandeis in Collins v. Miller to require "that the judgment to be appealable should be final not only as …

Specific Performance-Marketable Title To Realty-Perfecting Title By Litigation As An Incident To Specific Performance, J. R. Mackenzie S.Ed.

Michigan Law Review

The normal action on land contracts is two-sided, vendor against purchaser or purchaser against vendor, to settle the rights of the parties on the basis of the condition of V's title at the time of the decree. This action is quite satisfactory where V and P agree as to the condition of the title, whether free and clear or not, but must we adhere to this pattern when there is a controversy between them concerning the title? To make the question concrete, suppose that V claims he has an unencumbered fee simple while P asserts there is a paramount …

Corporations-Application Of Statutes Requiring That Corporate Business Be Managed By Board Of Directors, Bernard L. Trott

Michigan Law Review

In 1942, X corporation and its stockholders entered into an agreement whereby it was stipulated that the management of all theatres leased or operated by the X corporation, or any subsidiary thereof, would be placed in the hands of Y corporation, a large stockholder. This power of management was to include supervising and directing the buying and booking of all attractions, designating and changing the entertainment policy, hiring and discharging employees, and carrying out "such policies or projects as the Board of Directors of the Tenant or its subsidiaries may approve." This agreement was to be effective for a period …

Constitutional Law-Procedural Due Process In Criminal Cases-Adequacy Of Remedies In State Courts To Raise The Questions, David H. Armstrong S.Ed.

Michigan Law Review

This comment will not attempt to consider the guarantees of a fair trial, but will deal with the remedies available to a person confined in a state prison in his attempt to secure relief on the ground of an asserted violation of such guarantees in the conduct of his trial.

Powers-General Testamentary Power:-Ineffective Appointment- Devolution Of Appointive Property, Richard L. Eckhart S.Ed.

Michigan Law Review

In the usual case, the question of the devolution of property subject to a general testamentary power where the appointment is ineffective arises in a contest between those representing the estate of the donee on the one hand and those representing the estate of the donor, including the takers in default, on the other. The historical concept that the devolution of appointive property is from the donor to the appointee competes with the modern concept that the donee's interest in the property is, for many purposes, close to absolute ownership.

Constitutional Law-Due Process-Freedom Of Speech-Limitations On The Used Of Sound Amplification Devices, Bernard Goldstone

Michigan Law Review

Appellant, a minister of Jehovah's Witnesses, used, without a permit, sound equipment mounted on his truck to amplify lectures on religious subjects. He was convicted in a police court for violating a municipal ordinance of Lockport, New York. which prohibited the use of sound amplification devices without the permission of the chief of police. The ordinance provided no standards for the guidance of the local officer in the issuance of the permit. The conviction was affirmed by the county court and by the appellate court. On appeal, held, reversed, four justices dissenting. The ordinance violated the due process clause …

New Foreign Literature Of International Interest, Ernst Rabel

Michigan Law Review

A Review of New Foreign Literature of International Interest

Labor Law--Constitutionality Of Affidavit And Filing Provisions Of Taft-Hartley Act, Jerry S. Mccroskey S.Ed.

Michigan Law Review

Plaintiff union, its president, and two union members sought to enjoin the National Labor Relations Board and its members individually from disqualifying plaintiff union from participation in union representation elections held by the board among the employees of two Great Lakes shipping companies. The exclusion of the plaintiff union was based on its failure to file affidavits and reports under sections 9 (f), 9 (g), and 9 (h) of the Taft-Hartley Act, which failure by the terms of the act served to disqualify the non-complying union from participation in board procedures. The plaintiff union attacked the requirements as unconstitutional. Held …

The Legal Status Of Occupied Germany, Max Rheinstein

Michigan Law Review

The unprecedented situation presently existing in Germany has, of necessity, given rise to new and intricate questions of international law. Of these, one set of problems appears to me to deserve special attention because of both their theoretical and practical significance, namely, the problems concerning the legal relations between Germany and .her occupiers.

Recent Developments In Restitution: Rescission And Reformation For Mistake, Including Misrepresentation, Edward S. Thurston

Michigan Law Review

In accordance with underlying equitable principles, restitution is granted where a mistake has been made by one or both parties to a transaction or series of transactions because of which one of them has obtained an advantage which it would be unjust for him to retain.

There are two forms of relief, one based upon rescission, the other upon reformation. The first seeks the undoing of a transaction and the replacing of the parties into the positions, as nearly as may be, originally occupied. On the other hand, reformation seeks the performance of an agreement as the parties to it …

Quasi-Contracts-Taxation-Rescission Of Gifts Where Gift Fails To Achieve Donor's Purpose Of Minimizing Federal Income Taxes, Charles M. Soller S.Ed., Edwin F. Uhl S. Ed.

Michigan Law Review

A recent Michigan case, Stone v. Stone, presents problems of complexity and far-reaching importance. The plaintiffs, husband and wife, each owned a one-half interest in a family business partnership, and each apparently reported a proportionate share of the partnership earnings for federal income tax purposes. For the purpose of further reducing taxes on the income of the family unit, each parent transferred a one-quarter interest in the partnership to one of their two minor children, and thereafter each parent and child filed separate income tax returns reporting one-fourth of the partnership earnings as individual income. Each parent, under a …

Appeal And Error-Right Of Defendant To New Trial Where Plaintiff Is Entitled To All Or None And Verdict Is Intermediate, Bruce L. Moore S.Ed.

Michigan Law Review

In an action on an express contrast, plaintiff sued for $1750, representing the agreed 5 per cent commission on the sale of real estate. Defendant denied the validity of the contract, and there was no issue as to the amount of liability if liability existed. The instruction to the jury was that plaintiff was entitled to 5 per cent commission if entitled to recover. The jury returned a verdict for $875, half the amount claimed. Defendant's motion for a new trial was denied. Held, although the verdict was unauthorized as to plaintiff, there was no error as to defendant …

Some Problems In Special Assessment District Obligations, Irvin Long

Michigan Law Review

The question of the jurisdiction of a board or officer authorized to construct a local improvement and levy special assessments therefor has always been troublesome, and is particularly so when bonds or other obligations are issued in anticipation of the collection of such assessments. A vast amount of litigation has occurred in Michigan in recent years over drain district assessments, and bonds which such districts have issued. While this is of primary interest to Michigan lawyers and investors in public securities, many of the questions involved seem to be of such a general nature, so far as special assessment procedure …

Bankruptcy-Contempt--Presumptions-Finality Of Turnover Orders In Contempt Actions And The Presumption Of Continued Possession, T. L. Tolan, Jr. S.Ed.

Michigan Law Review

Problems of jurisprudence and bankruptcy are raised by Maggio v. Zeitz, a recent decision of the United States Supreme Court. The facts were these: In April, I942, the Luma Camera Service was adjudged a bankrupt. Defendant was its principal officer. The bankrupt's books showed a large and unusual merchandise shortage for November and December, 1941. Despite defendant's denial, the referee and district judge were satisfied that defendant had extracted the property from the estate before bankruptcy. But there was no evidence that defendant retained the goods or their proceeds. Relying on a presumption of continued possession, the referee ordered …

Contracts--Specific Performance-Defense Of Hardship Caused By Defendant's Improvements After Giving Option To Purchase, Robert E. Anstaett

Michigan Law Review

In a lease of plaintiff's corner lot to defendant corporation in 1941, the latter granted plaintiff a five-year option to purchase adjacent lots owned by defendant for $35,000, which was then a fair price. In 1945 defendant's officers, overlooking the option agreement, authorized construction of a warehouse on the adjacent property. After defendant had expended about $20,000 in the construction, plaintiff exercised her option by giving notice to defendant. Upon defendant's refusal to convey, plaintiff sued for specific performance. The trial court dismissed the complaint. Held, reversed and remanded with instruction to decree specific performance upon condition that plaintiff …

Discovery-Procurement Of An Order Requiring A Nonresident Plaintiff To Submit To An Oral Examination Within The State Before Trial, Ralph J. Isackson

Michigan Law Review

Relator, a resident of Massachusetts, brought an action in Illinois against the Railway Express Company to recover damages for the negligent transportation of the relator's cattle. After the cause was at issue the Express Company's attorneys presented a motion to respondent, a superior court judge, requesting a court order directing the nonresident relator to appear before a notary public in Chicago for the purpose of an oral examination. The court granted the order, fixing a time and place for the taking of relator's deposition on oral interrogatories. Upon failure of the relator to appear, the court stayed proceedings for a …