Digital Commons Network^™

Trade Marks And Trade Names - Assignment Of Wholesaler's Mark To One Who Will Continue To Sell The Identical Goods, Oscar Freedenberg

Michigan Law Review

In cross suits for infringement of trade mark between the C Distilling Company and the P Brewing Company over the use of the trade mark "Century Club" on liquor and beer respectively, a collateral question arose, whether the assignment under which the distilling company claimed a right to the name was valid. The assignor of the trade mark was a wholesaler of several different brands of liquor that were produced by different distillers. The particular brand "Century Club" was manufactured by the C Distilling Co. The wholesaler assigned its right to use the name "Century Club" to the C Distilling …

Trusts-Right Of Divorced Wife Of Beneficiary Of Spendthrift Trust To Reach The Beneficiary's Interest In The Trust For Alimony And Support For Children, W. Wallace Kent

Michigan Law Review

P, divorced wife of D, brought this action for alimony and for support money for her children. The object of the action was to reach the income from a spendthrift trust created for the benefit of D and his present wife and children in the will of D's mother. The will specifically provided that none of the proceeds of the trust were to go to P or her child. Held, the settlor had the right to devise her property in any manner she chose. There is nothing in the statutes or decisions of Wisconsin which forbid …

Book Notes, Michigan Law Review

Michigan Law Review

This department undertakes to list and, when possible, describe briefly current books on law and matters closely related thereto.

Another New Tort?, Paul A. Leidy

Michigan Law Review

During the past two years there have come suggestions of at least two new torts: intentional infliction of mental suffering, and radio defamation. The ease with which the decision in Baxter v. Ford Motor Company has caught on, especially with legal scholars and with at least one American court, suggests that we may soon have to add a third. This one, however, will be more difficult to label, for the writers who applaud the result seem to be in almost complete disagreement as to the principle of the case; there are already several explanations and justifications for the liability imposed …

The State Legislatures And Unionism: A Survey Of State Legislation Relating To Problems Of Unionization And Collective Bargaining, Russell A. Smith, William J. Delancey

Michigan Law Review

'There ought to be a law!" So declared labor and its friends in the early days of the New Deal, and the Wagner Act and "little" Wagner acts (the "labor relations acts") were the legislative response. Now, some five years later, with Utopia in labor relations not yet at hand, the hue and cry goes up for still more law, both state and federal. In part this is the typical American reaction to particular irritations and assumes with the usual naiveté that there is a single legislative specific for every isolated ailment. In part it is the equally typical reaction …

Torts- Death As A Result Of Worry Over Libel-Survival Of Actions - Legal Cause, Edmund R. Blaske

Michigan Law Review

Plaintiff, administratrix of her husband's estate, brought an action against defendant newspaper to recover damages for the death of her husband, which she claimed resulted from worry over an alleged libel that defendant published. The trial court sustained defendant's demurrer to the declaration and plaintiff appealed. Held, since the "survival statute" does not preserve actions affecting character, the libel abated with the husband's death; and since mental anguish, worry, fear and loss of health are the several results of the wrongful act of libel, they cannot be made the basis of a new cause of action. Judgment for defendant …

The Codification Of The French Customs, John P. Dawson

Michigan Law Review

A renewed attack on central problems of English legal history can gain fresh perspective from the history of French law. France and England entered the later middle ages with a common fund of legal and political institutions. Much of the area that was to be included in modern France was united with England under a common sovereign; political institutions were shaped by the same basic forces into similar forms of feudal organization; private law was largely composed of unformulated popular custom, remarkably similar even in detail. As early as the thirteenth century the tendencies toward divergence, both in law and …

Evidence - Degrees Of Secondary Evidence - Problems In Application Of The So-Called "American" Rule, William H. Klein

Michigan Law Review

Since 1710 the courts of the Anglo-American juridical system have been seeking a solution to the problem of the existence of degrees of secondary evidence. Those courts which have determined that there are degrees have been confronted with the second problem concerning the circumstances under which the secondary evidence rule will actually preclude the admission of the evidence offered. In the majority of decisions the courts have relied on precedent, or on statements of text writers, stripped of their context, and have failed to. seek the solution in terms of the purposes for which rules of evidence have been devised. …

Arrest - Searches And Seizures - Reasonable Ground For Arrest Without Warrant, Michigan Law Review

Michigan Law Review

The defendant was indicted for receiving and concealing seventy grains of heroin unlawfully imported into the United States. The government proposed to introduce the seized drug in evidence at the trial of the defendant. It appeared that the federal narcotic agent who had made the arrest without a warrant had seen the defendant enter and leave a grocery store. in which narcotic transactions were known to have taken place, He knew the defendant to be an addict, and immediately preceding the arrest, in accordance with a prearranged code, he had been informed by a companion of the defendant, known to …

Death By Wrongful Act - Effect Of Recovery By Plaintiff's Intestate, Jerome J. Dick

Michigan Law Review

The decedent recovered from defendant a judgment for personal injuries which was satisfied during deceased's lifetime. Six months later the deceased's death was caused by these same injuries. This action was brought by plaintiff as next of kin to recover damages for the wrongful death under the New York Wrongful Death Act. Held, the judgment recovered by plaintiff's intestate is a bar to this action notwithstanding the enactment of survival statutes which sweep away the rule that an action for personal injuries abates on the death of the injured party or wrongdoer. Fontheim v. Third Avenue Ry., 257 …

Municipal Corporations - Home Rule Amendments - Conflict Between Local And State Law, William L. Howland

Michigan Law Review

The petitioner, on behalf of the city of Akron, applied for a writ of mandamus to compel the board of health of the city to apply the municipal civil service regulations to the employees of the board. In 1912, Ohio had adopted a so-called "home rule amendment" to its constitution, under authority of which the city had formulated its charter. By statute, each city in Ohio constitutes a city health district, and the officers thereof are appointed by the mayor of the city with the consent of the city council. The state statutes make no express reference to civil service …

Municipal Corporations - Liability For Services Performed Under Invalid Contract, Michigan Law Review

Michigan Law Review

Plaintiff was employed by the board of overseers of defendant city to supervise obtaining employment for recipients of welfare relief, thus relieving the city of the expense of providing for them. The powers of the board were restricted by an ordinance which provided that before any increase should be made in the number of subordinates, a report thereof would be sent to the mayor for his approval. It appeared that the original employment of the plaintiff was in violation of this provision, although the mayor subsequently approved it up to April 5, 1936, when plaintiff's civil service appointment expired. Plaintiff …

Negligence - Injury From Bodily Movement Of Sleeping Defendant, Michigan Law Review

Michigan Law Review

Defendant, while asleep on the rear seat of the automobile driven by plaintiff, kicked the back of the front seat, thereby throwing plaintiff forward and causing plaintiff to lose momentary control. Plaintiff brought this action for injuries sustained when the car crashed into a culvert. Held, the trial court properly instructed the jury that defendant was entitled to a verdict if he was asleep at the time he kicked the front seat. The supreme court stated, "fundamentally to create liability for an act alleged to be negligent, it must be shown to have been the conscious act of a …

Libel And Slander - Charging Physician With Lack Of Skill In Particular Case, Michigan Law Review

Michigan Law Review

Plaintiff, a practicing physician, sued to recover damages for an alleged libel committed when defendant falsely published in its newspaper an article stating that plaintiff examined a prisoner in the city jail, diagnosed his condition as "alcoholic paralysis," and ordered his removal to a city hospital, and that a post mortem disclosed that the prisoner's neck was fractured. Held, that to charge a physician with having made a wrong diagnosis in a particular case is not actionable per se, and since there is no allegation of special damage, there can be no recovery. Blende v. Hearst Publications, Inc., …

Torts - Negligence - Duty Of Owner Of Place Of Public Amusement To Protect Against Criminal Acts, Michigan Law Review

Michigan Law Review

Plaintiff as patron of defendant's theater, while in the ladies' room located on one of the top floors of the theater, was assaulted and robbed. The testimony for the plaintiff showed an absence of attendants except on the main floor. At the end of the plaintiff's case the complaint was dismissed. Held, non-suit was erroneous; there was evidence from which the jury could infer that the defendant should reasonably have anticipated the happening of the incident and had failed to take reasonable precautions to guard against it. Hart v. Hercules Theatre Corp., (S. Ct. 1939) 13 N. Y. …

Trusts - Investments - Participation Mortgages - Common Trust Funds, William F. Andersen

Michigan Law Review

A corporate trustee had operated a trust estate described by the court as "a joint trust fund." Mortgage investments were made in the name of the trustee and the individual estates were issued participation certificates. While not appearing on the public records, the trustee's files disclosed the interests of the beneficiaries. Because of the world-wide depression, losses were suffered and the beneficiaries of one such trust sought to surcharge the trustee for those losses. The trustee had acted in good faith and in accordance with accepted trust practices. Held, that this did not constitute a breach of trust, and …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-five leading law reviews.

Book Notes, Michigan Law Review

Michigan Law Review

This department undertakes to list and, when possible, describe briefly current books on law and matters closely related thereto.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 38, Issue 5 of Michigan Law Review

Unfair Competition - Trade Marks And Trade Names -Nature Of Relief Against The Use Of A Misleading Trade Name Which Has Acquired A Secondary Meaning, Harold M. Street

Michigan Law Review

The petitioner, a Pennsylvania manufacturer of cigars which contained only Pennsylvania tobacco, but which it had branded "Havana Smokers" since 1902, was ordered by the Federal Trade Commission to cease and desist from using the word "Havana" to designate its product. The petitioner claimed that the brand had acquired a secondary meaning and asked the court to modify the order to permit retention of the word "Havana" qualified by the legend: "Notice. These cigars are made in the United States and only of United States tobacco." Held, the name so used might result in misrepresentation and its use must …

Torts - Joint Tortfeasors - Husband And Wife - Torts Between Spouses - Immunity Of Third Persons, Michigan Law Review

Michigan Law Review

Plaintiff sued defendants, including plaintiff's husband, for jointly causing a false charge of adultery to be made against plaintiff in a divorce suit. The defendants' demurrer to the complaint was sustained in the trial court as to each and all of the defendants. Held, that although plaintiff's husband was immune from liability, a cause of action had been made out against all the rest of the defendants, and the judgment in their favor was reversed. Ewald v. Lane, (App. D. C. 1939) 104 F. (2d) 222.

Torts - Right Of Privacy - Radio Broadcasting, Michigan Law Review

Michigan Law Review

Plaintiff, a chauffeur, had been the victim of a hold-up and shooting, suffering serious injury. Defendant sponsored a radio broadcast in which plaintiff's name was used dramatizing the affair. On hearing the broadcast, plaintiff sued in tort alleging that he suffered mental anguish and physical shock which resulted in impairing his ability to drive and caused him to be discharged from his job. Held, defendant's motion to dismiss denied, as plaintiff had stated a cause of action for invasion of a right of privacy. Mau v. Rio Grande Oil, Inc., (D. C. Cal. 1939) 28 F. Supp. 845.

Torts - Infants - Immunity Arising From Family Relationship, Michigan Law Review

Michigan Law Review

Plaintiff, a twelve year old boy, was injured in an automobile accident by the admitted negligence of defendant, his sixteen year old sister. Neither child had a separate estate, both were unemancipated, unmarried, and were living at home with their parents. Held, plaintiff could recover. Rozell v. Rozell, 256 App. Div. 61, 8 N .Y. S. (2d) 901 (1939), affd. (N. Y. 1939) 22 N. E. (2d) 254.

Book Notes, Michigan Law Review

Michigan Law Review

This department undertakes to list and, when possible, describe briefly current books on law and matters closely related thereto.

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-five leading law reviews.

Expatriation Of American Minors, Lester B. Orfield

Michigan Law Review

The United States Supreme Court in May, 1939, handed down a vitally significant decision on the expatriation of American minors. Prior to that date, one was forced to deduce the law from conflicting decisions of the lower federal courts and of state courts, rulings by the departments of state, labor, and justice, and views of writers. This, therefore, seems an appropriate time at which to discuss the problems which have been raised and the solutions which have been offered.

The Powers Of A Court Of Equity In State Tax Litigation, Maurice S. Culp

Michigan Law Review

Hitherto a state taxpayer, otherwise meeting the jurisdictional requirements of a federal district court, could secure an injunction from such a court upon a showing that there was no adequate remedy at law in the federal district court, and this regardless of the legal or equitable remedies afforded by the state courts.

In view of this recent legislation, it becomes important to ascertain the new limitation upon the equity powers of the federal district courts in state tax litigation. Likewise, because of these new rigid limitations upon the jurisdiction of the federal courts, the attitude of the state courts of …

Administrative Law - Review Of Administrative Orders - Elimination Of The "Negative" Order Doctrine, Robert J. Miller

Michigan Law Review

The recent decision of the Supreme Court in Rochester Telephone Corporation v. United States is of importance in determining the reviewability of administrative orders that are negative in character. In the principal case, under authority of the Federal Communications Act the Federal Communications Commission issued a general order directing that every telephone carrier file statements concerning its business and affairs. The Rochester Telephone Corporation, the petitioner, failed to file such statements, claiming it was not subject to the commission's jurisdiction because of an exemption under section 2(b) (2) of the Communications Act of 1934. This section provides that the commission …

Corporations - Receivers - Rights Of Creditors Or Receiver To Raise An Objection To Corporate Action Which Would Be Open To Shareholders, Jerome J. Dick

Michigan Law Review

The writer will attempt to show that the courts, in spite of their language of fraud and breach of trust, are not applying the legal rules of fraud and trust relationship in allowing recovery to the creditor. The cases brought by the receiver for the benefit of creditors can be roughly divided into three broad groups: (1) instances where the court speaks of a trust relationship, holding that the corporation has breached the duty of trust to the creditors; (2) situations where the court speaks of some hazy principle of "fraud" on the creditors; (3) cases where the court forgets …

Conflict Of Laws-Public Policy Of The Forum A Bar To Wife's Action Against Husband For Negligent Injury, Oscar Freedenberg

Michigan Law Review

Husband and wife were residents of state A, in which a personal tort action between the spouses was not recognized. The wife sued in state A for injuries sustained by reason of her husband's negligent operation of an automobile in state B. Notwithstanding the wife had a right of action under the lex loci delicti, held, that the public policy of the forum is an effective bar to an action by the wife against her husband for personal injuries. (In the record of the case it appears that the defendant in interest was an insurance company.) Kircher …