Digital Commons Network^™

The Theory And Practice Of Pre-Trial Procedure, Edson R. Sunderland

Michigan Law Review

Pre-trial civil procedure under the English common-law system consisted only of pleading. Whatever the rules of pleading could accomplish in the way of defining and restricting issues contributed to the efficiency of the trial. What could not be done by the rules of pleading could not be done at all.

The great weakness of pleading as a means for developing and presenting issues of fact for trial lay in its total lack of any means for testing the factual basis for the pleader's allegations and denials. They might rest upon the soundest evidence, or they might rest upon nothing at …

Conflict Of Laws - Guest Motorists -How Far Is The Lex Loci Delicti Controlling In The Forum?, M. M. Howard

Michigan Law Review

Before the advent of the "guest statutes," the decisions of all but a very few states recognized no degrees of negligence and measured the duty of the automobile host towards his non-paying guest by due care under all the circumstances-the "ordinary negligence" rule. In the few exceptional states, the decisions required the plaintiff to prove "gross," "wilful," or "wanton" negligence on the part of his host in order to maintain his action. And within the last decade nineteen states have adopted "guest statutes" which, with varying language, adopt the "gross negligence" rule. Since the rule of the lex loci delicti …

Eminent Domain - Public Housing And Slum Clearance As A "Public Use", Wayne E. Babler

Michigan Law Review

The recent legislation providing for housing and slum clearance raises the interesting and practical problem of whether a taking of land for such housing and slum clearance purposes by means of an eminent domain proceeding is condemnation for a "public use," within the meaning of that term in eminent domain proceedings. Such a taking was held to be for a public use in the recent case of Spahn v. Stewart.

Insurance - When Contracts For Contingent Performance Of Acts Other Than Payment Of Money Constitute Insurance, Charles W. Allen

Michigan Law Review

A recent case presents the many difficulties that confront the courts in determining whether a given contract is one of insurance. Plaintiff was a glazier. For a fixed payment he agreed with his customers that during a certain period he would repair and replace, if broken, their store-front glass. Penal proceedings were instituted against plaintiff for failure to comply with the insurance laws. He brought an action to enjoin prosecution of the proceedings. It was held that the contracts were not insurance contracts and that plaintiff was entitled to the injunction.

Negligence - Contributory Negligence - Infant Plaintiff's Violation Of Statute, Wayne E. Babler

Michigan Law Review

A nine-year old boy, who ran out into the street without looking in both directions, and thus violated a statute, was injured by an automobile the driver of which was allegedly negligent. Held, it is not negligence as a matter of law for a nine-year old boy to step into the street without looking both ways, notwithstanding the penal statute. Michalsky v. Gaertner, 53 Ohio App. yr, 5 N. E. (2d) 181 (1937).

Torts - Liability Of Power Company To Resident For Non-Performance Of Contract With City To Keep Street Light Burning, Paul R. Trigg

Michigan Law Review

Defendant public utility was under contract to a municipality to light the streets. Plaintiff, a local resident, was injured in an automobile collision which, he alleged, was caused by defendant's negligent failure to keep a certain street light burning. Defendant demurred. Held, that the demurrer was properly sustained. Tollison v. Georgia Power Co., 53 Ga. App. 795, 187 S. E. 181 (1936).

Damage As Requisite To Rescission For Misrepresentation: Ii, Glenn A. Mccleary

Michigan Law Review

For the purpose of an analytical study of the decisions involving rescission for misrepresentation in which the damage problem has been considered, it seems convenient to classify the cases into three groups: (1) where the representee obtains the very thing that he expected to get, but it is worth less than he was led reasonably to expect under the representations made to him; (2) where the representee obtains something substantially different than he was led to expect; and (3) where the representee obtains the very thing that he expected and it is as valuable as he expected it to be, …

Public Utilities - Collections - Discontinuance Of Service, Charles E. Nadeau

Michigan Law Review

Defendant's rate schedule provided for a minimum charge of $1 per month for each month of the year. Plaintiff was connected to defendant's system in May. The first electric bill included four dollars as the minimum charge for the months from January to May, defendant claiming that the minimum charges ran from the first of the calendar year. Plaintiff paid for the other items but refused payment of the four dollars. Service was discontinued in July. The lower court decided that it did not have jurisdiction to give either an injunction or damages. Held, where an account is honestly …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-four 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.

Damage As Requisite To Rescission For Misrepresentation, Glenn A. Mccleary

Michigan Law Review

The decadence of equity during the nineteenth century has long been an accepted phenomenon. The attempt to make law coincide with morals in the seventeenth and eighteenth centuries was followed in the nineteenth century by the gradual fixing of rules and a consequent stiffening of the legal systems, in which moral principles became lost in a mass of rules derived from such principles. What were once equitable doctrines tended to become mechanical rules. The former strength of equity has been weakened in the various jurisdictions, due in a large measure to the administration of law and equity by the same …

A Comparison Of Continental And American Legal Education, Stefan Riesenfeld

Michigan Law Review

Legal education in the United States has become more and more a part of university education and the activity of the American university law school is a matter which invites comparison with the law schools of foreign universities. This is true particularly because the system of university legal education has recently also become a "problem" in this country. In 1930 Abraham Flexner published his instructive, but possibly not altogether unbiased, book on universities in which he pictured American, English and German universities. The author gave all his attention to the teaching of science, however, and did not discuss law schools, …

Municipal Corporations - Use Of Streets - Validity Of Ordinance Providing For Parking Meters, Charles M. Kneier

Michigan Law Review

Petitioner was convicted and fined for parking in a meter parking space on a city street without depositing a nickel in the meter as required by municipal ordinance. Upon being committed to jail he applied for a writ of habeas corpus, contending that the ordinance providing for parking meters was invalid. Held, the writ was denied, parking meter ordinances being valid police regulations. Ex parte Duncan, 179 Okla. 355, 65 P. (2d) 1015 (1937).

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.

Trade-Marks - Registration - Likelihood Of Confusion, Herbert L. Nadeau

Michigan Law Review

The applicant sought registration of the trade-mark "Powermax" for gasoline. The application was opposed on the ground of prior use and registration of "Powerine" for the same product. The register already contained the marks "Powerfuel," "Powerline," "Powerite," "Powero," "Powerflash," and "Powerized" for gasoline. Held, the application was properly denied. The mark must be considered as a whole, and the fact that the registered mark, or a portion of it, is descriptive in character does not justify disregarding the similarity in passing on the right to register. The showing of other confusing marks on the register does not help this …

Mortgages - Deed In Lieu Of Foreclosure - Validity, Elbridge D. Phelps

Michigan Law Review

Depression years have brought to the fore a question much controverted in the early law, but now said to have become settled. That question regards the effect and efficacy of a conveyance of the mortgaged land, or a transfer of the equity of redemption, by the mortgagor to his mortgagee. It seems to have been cheerfully assumed by some lawyers, and by laymen in general, that in the absence of liens subsequent to the mortgage, the procedure is perfectly safe and proper in every case. It is the purpose of this discussion, however, to point out certain dangers inherent in …

Municipal Corporations - Implied Power To Sell Appliances As Incidental To Power To Operate Municipal Light Plant, Milton Rabinowitz

Michigan Law Review

A Massachusetts statute authorized municipalities to "construct, purchase or lease, and maintain . . . one or more plants for the manufacture or distribution of gas or electricity for municipal use, or for the use of its inhabitants." Pursuant to this statute the town of Concord contracted with the Edison Electric Company of Boston to supply the municipal light plant with electrical energy for distribution by the latter to local consumers. In order to take advantage of a lower rate to enable it to meet the competition of a privately owned gas company, the municipality sought to increase consumption by …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

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

Purchaser's Remedies For Absence Of Marketable Title, Lawrence Linville

Michigan Law Review

"Where a person takes upon himself to contract for the sale of an estate, and is not the absolute owner of it, nor has it in his power by the ordinary course of law or equity to make himself so; though the owner offer to make the seller a title, yet equity will not force the buyer to take it, for every seller ought to be a bona fide contractor: and it would lead to infinite mischief if one man were permitted to speculate upon the sale of another's estate."

The apprehensions of Sugden were not groundless, as three quarters …

Corporations - Unorthodox Preferred Stock Provisions In Priority Litigation, Elbert R. Gilliom

Michigan Law Review

To one who has accumulated sufficient savings to earn the position of a prospective purchaser of corporate securities there is presented an impressive and somewhat mystifying list of interests from which he may choose, advisedly or otherwise. Between orthodox common stock at one extreme and secured bonds at the other, ranges an endless variety of stocks embodying some bond characteristics, bonds bearing stock attributes, and a welter of certificates professing to be neither stocks nor bonds. Because individual sources of funds needed for industry do differ in their convictions as to relative advantages of different characteristics of securities, issuing corporations, …

Carriers - Shipping - Limitation Of Liability By Stipulation On Ticket, Michigan Law Review

Michigan Law Review

Libelant through an agent purchased a steamship ticket to the West Indies. Neither libelant nor his agent had actual knowledge of a stipulation on the back of the ticket which required passengers to lodge a written notice of any claim against the steamship company within thirty days after termination of the voyage. All passengers were required to sign their tickets, but libelant failed to do so until the day after the cruise began. The district court dismissed a suit for personal injuries suffered while aboard the ship because of noncompliance with the limitation of the ticket. Held on appeal, reversing …

Insurance - Automobile Insurance - "Passengers For Consideration", Jacob L. Keidan

Michigan Law Review

In an action upon an automobile liability insurance policy, defendant sought to avoid liability by proof of voluntary payments made to the insured by the plaintiff subsequent to the beginning of the trip. It was held that since no agreement for payment was made prior to the trip the insured was not then carrying "passengers for consideration" within the meaning of the clause contained in the policy for the purpose of protecting the insurer against such use of the vehicle. Reed v. Bloom, (D. C. Okla. 1936) 15 F. Supp. 600.

Corporations - Priority Between Parent Corporation And Preferred Stockholders Of Bankrupt Subsidiary, Erwin S. Simon

Michigan Law Review

It is well settled that when an undercapitalized subsidiary corporation is bankrupt, the claims for money loaned by the parent corporation which has dominated the subsidiary will be subordinated to the claims of other creditors. An analogous problem, which has seldom, if ever, been directly passed upon, is the priority between the claims of the nonvoting preferred stockholders of the subsidiary and those of the dominating corporation which owns all the common voting stock of the subsidiary. In spite of the fact that intercorporate loans are a common and approved method of financing subsidiaries, the question has heretofore been relatively …

Wills - Executors And Administrators -Titles - Effect Of The Revocation Of Probate Decrees On The Title To Realty Acquired By Bona Fide Purchase From Heir Or Devisee, Victor P. Kayser

Michigan Law Review

There are probably few chains of title to realty that do not contain at least one link consisting of a conveyance from one who claimed as heir or devisee of a decedent. The ability of the granter to convey resulted from the fact that he was heir of an intestate or was a devisee under the last will of his testator. Sometimes it has occurred that the grantee has purchased for value and with no knowledge or suspicion of an impending attack on his grantor's title, only to have it subsequently determined in a judicial proceeding that his grantor's ancestor …

Charities - Corporation Organized For Political Purposes As A Charitable Organization, Charles R. Linton

Michigan Law Review

A statute provided, in substance, that bequests in a will to charitable organizations may not collectively exceed one-third of the estate of a testator leaving heirs. Plaintiff, a legatee under a will, appealed from a decree which found the American Jewish Congress was not a charitable organization and therefore was entitled to the full sum bequeathed to it. Among the corporate purposes stated in the articles of incorporation were: (a) to further the development of the Jewish National Home in Palestine, and (b) to secure and maintain equality of opportunity for Jews everywhere. Held, decree reversed; although incorporated for …

Public Utilities - Constitutionality Of Statute Imposing Regulatory Costs Upon Utilities, Charles W. Allen

Michigan Law Review

A state statute imposed an annual fee of one-tenth of one per cent of gross operating revenues upon public utilities. The fees were placed in a state revolving fund used to defray the expenses of administration of the public service law. Plaintiff railroad paid the fees under protest and brought an action to recover that amount, claiming that the act was unconstitutional. The trial court held that the act was unconstitutional on its face. The state supreme court revised this decision, holding that act valid and placing the burden of proof on the plaintiff to show that it had become …

Constitutional Law - Unreasonable Search And Seizure - Unauthorized Examination Of Telegrams, Peter S. Boter

Michigan Law Review

A special committee of the United States Senate, appointed to investigate lobbying activities in connection with the so-called "holding company bill" sought to obtain from telegraph companies, under blanket subpoena duces tecum, all telegrams passing through their offices in Washington from February 1, 1935 to September 1, 1935. When the telegraph companies expressed reluctance to comply with the subpoenas, the Senate Committee sought aid from the Federal Communications Commission. The commission by formal resolution detailed a member of its staff to work with an examiner of the Senate Committee in the examination and copying of the telegrams. Among the messages …

Constitutional Law - Validity Of Minimum Wage Legislation Under The Fourteenth Amendment, Jack L. White

Michigan Law Review

A state statute provided that it should be unlawful to employ women at wages not adequate for their maintenance, and established a commission to fix wages according to such a standard after a public hearing and a conference of representatives of employees and employers, and disinterested persons representing the public. The appellee was employed as a chambermaid in the hotel of appellant at less than the minimum wage prescribed, and brought suit to recover the difference between these amounts. The state court gave judgment for the appellee, and on certiorari the Supreme Court held that the statute was valid and …

Trade Marks - Registration - Color As A Common-Law Or Technical Trade Mark, Michigan Law Review

Michigan Law Review

Plaintiff had applied for registration of a trade mark for a cleaning powder consisting of a rectangular yellow panel, bounded by a contrasting blue border, affixed to the container of the goods. The mark was accompanied by two other trade marks and by certain descriptive material impressed on the body of the mark within the blue border, for which trade marks and descriptive matter registration was not sought. The Commissioner refused to register the mark on the ground that it would not indicate the origin or ownership of the goods, and on the further ground that it would be regarded …

Assessment Of Real Property For Taxation, Kenneth K. Luce

Michigan Law Review

A taxpayer's suit to have the assessment on his real property lowered raises some of the oldest and most troublesome problems in the law of taxation. Invariably both the taxpayer and the government are in position to present convincing evidence and forceful argument regarding the fairness of the assessment. Moreover, to the lawyer the problems of appellate review involved in the taxpayer's suit are exceedingly complex. Except in the case of the public utility, the administrative process usually begins with the fixing of the assessment by the local assessing official. From his decision the taxpayer may in most jurisdictions appeal …