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Statutes - Interpretation - Application Of Venue Statute To Owners Of Forms Of Transportation Unknown At The Time Of Its Enactment, Michigan Law Review

Michigan Law Review

An Iowa venue statute passed in 1872 provided that "an action may be brought against any railway corporation, the owner of stages, or other line of coaches or cars . . . in any county through which such road or line passes or is operated." A damage action was brought against petitioner in a county through which its truck line regularly operated. Petitioner moved for a change of venue to the county where its principal office was located. The motion was overruled and petitioner tested the validity of the ruling in an action in certiorari. Held, a common carrier …

Taxation - Interstate Commerce - State Taxation Of Gasoline Of Interstate Motor Carriers, C. Eugene Gressman

Michigan Law Review

An Arkansas statute required the payment of the state tax on all gasoline carried into the state in motor vehicle fuel tanks in excess of 20 gallons. The revenue therefrom was applied for highway purposes. Appellee's buses traveled four different routes, two from Memphis through Arkansas to St. Louis and two from Memphis to cities in Arkansas. For the Memphis-St. Louis trip, 68 gallons were required, only 16 of them being used in Arkansas. These 68 gallons, plus 10 extra ones, were placed in the tank at Memphis. On arrival at the Arkansas line, each bus still had 77 gallons …

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. …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

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

Taxation - Constitutional Law - Power Of Congress To Exempt Federal Instrumentalities From Taxation, Michigan Law Review

Michigan Law Review

The Home Owners' Loan Corporation instituted a mandamus proceeding against the clerk of the superior court of the city of Baltimore to compel the recording of a mortgage upon payment of the ordinary recording charge and without affixing stamps in compliance with the state recording tax. The lending process of the HOLC is expressly declared by Congress to be exempt from taxation. Held, the tax is invalid in so far as it purports to cover the lending process. All justices concurred. Pittman v. Home Owners' Loan Corp., 308 U. S. 21, 60 S. Ct. 15 (1939).

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.

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.

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 …

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 …

Subjective Judicial Review Of The Federal Communications Commission, Harry P. Warner

Michigan Law Review

The basis for judicial review of administrative agencies in one form or another is the Union Pacific rule, originally developed to govern the relationship between the courts and the Interstate Commerce Commission. Variations in the application of this judicial formula to different agencies have been shaped for the most part by the character of the governmental power exercised and the nature of the subject matter under review. For example, the judicial control exercised over taxing authorities is circumscribed by the sovereign demand for revenue essential to the maintenance of government. The scope of judicial review has been extended in deportation …

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 …

Taxation - Federal Income Tax - Distinction Between Sale And Tax Exempt Reorganization Under Section 112, Henry J. Merry

Michigan Law Review

The recent Supreme Court decision in Le Tulle v. Scofield, disapproving the views of four out of five circuit courts of appeals, appears to add a new and more specific requirement to the already complex law on the subject of statutory reorganization under the Revenue Act of 1928 -- that the consideration received by the transferor corporation include some stock of the transferee corporation. In the subject case, the Gulf Coast Irrigation Company transferred substantially all its assets to the Gulf Coast Water Company in exchange for $50,000 in cash and $750,000 in mortgage bonds, four-fifths of which matured …

Banks And Banking - Gifts -- Co-Tenancy -- Joint Accounts -- Statutes, Michigan Law Review

Michigan Law Review

Testator ordered his bank to transfer his account to a new account in the name of himself and his daughter "for either or survivor." After testator's death, suit was brought by his executor to compel discovery of $5,000 which had been withdrawn from the joint account by the daughter prior to the death of her father. The executor introduced evidence which tended to show that neither the testator nor his daughter contemplated that the daughter was to enjoy any interest in the account until her father's death. Held, that the daughter must pay to the executor the amount which …

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 …

Constitutional Law - Original Jurisdiction Of United States Supreme Court - Availability As A Procedural Remedy To Avoid Multiple Taxation, Benjamin W. Franklin

Michigan Law Review

The state of Massachusetts instituted an original proceeding against the state of Missouri and individual citizens of Missouri for leave to file a bill of complaint, alleging that M. B. Blake died domiciled in Massachusetts; that she had created three trusts of securities, reserving a power of revocation over two; that the securities were held in Missouri where the trustees resided; that both states had statutes subjecting to taxation property passing by deed, grant or gift, made or intended to take effect in possession or enjoyment after the donor's death; that the Massachusetts statute taxed intangible property only when owned …

Constitutional Law - Privileges And Immunities Of Federal Citizenship - Discriminatory Tax On Out-Of-State Bank Deposits - Colgate V. Harvey Overruled, C. Eugene Gressman

Michigan Law Review

A Kentucky statute imposed on its citizens an annual ad valorem tax on their bank deposits outside the state at the rate of fifty cents per $100 and at the same time imposed on their bank deposits within the state a similar tax at the rate of ten cents per $100. Decedent, a resident and citizen of Kentucky, died in 1929. On several prior tax assessment dates, he had large funds on deposit in New York banks which he failed to report for taxation purposes. The state brought suit against the executor to recover the tax, interest, and penalties. The …

Fraud - Negligent Misrepresentation - Liability Without Fault - Contributory Negligence As A Defense, Roy L. Rogers

Michigan Law Review

Plaintiff purchased a pearl necklace from the defendant. In a suit for fraud, plaintiff alleged that the defendant had misrepresented the quality of the necklace and his own expert ability. Before purchasing, plaintiff had secured the services of another expert. The trial court found that there was no reliance by the plaintiff on the defendant's misrepresentation and that the plaintiff was guilty of contributory negligence. Held, by the trial court, (1) that lack of reliance barred recovery for fraud; (2) that contributory negligence barred recovery for negligent misrepresentation; and (3) that if New York courts recognize a liability without …

Torts - Liability Of Manufacturer Or Supplier Of Defective Chattel - Limitation According To Type Of Harm, Michigan Law Review

Michigan Law Review

Defendant manufactured a type of building lath which was represented to the trade as "practical and satisfactory" and as "a sufficient and superior base for plaster on walls and ceilings in building construction." These laths were sold through another defendant, a supply company, to the plaintiffs, who were builders and owners. The laths were defectively constructed and would not retain plaster after installation. Consequently, the plaintiffs were compelled to remove the plaster and to purchase and install different laths at a high expense. Plaintiffs sued both the manufacturer and the supplier for the damages sustained. Held, a motion for …

Constitutional Law - Delegation Of Legislative Power - Agricultural Marketing Agreement Act, Edward S. Biggar

Michigan Law Review

The declared policy of the Agricultural Marketing Agreement Act of 1937 was to raise the purchasing power of agricultural commodities and, at the same time, to protect the interest of the consumer. The Secretary of Agriculture was empowered to issue orders which, in his belief, based upon a consideration of evidence introduced at a public hearing, would tend to effectuate this policy. Certain minimum requirements as to the provisions of the orders were imposed. For any order to be effective, it must have been approved by a proportion of the producers of the commodity concerned. Pursuant to the provisions of …

Physicians And Surgeons - Malpractice - Removal Of Swabs By Surgeon - Res Ipsa Loquitur, Michigan Law Review

Michigan Law Review

Defendant surgeon failed to remove a swab from deceased's body after a major abdominal operation, relying in part on the accuracy of the count made by the head theatre nurse, employed by the hospital in which the operation occurred. In a suit by the mother of deceased against defendant for his alleged negligence, held, the doctrine of res ipsa loquitur applies, necessitating an explanation by defendant, but it is for the jury to decide on the evidence in the entire case whether defendant's conduct constituted a breach of his duty to use due care in performing the operation. Mahon …

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.

Libel And Slander - Limitation Of Actions -Tolling The Bar Of Statute Of Limitations By Subsequent Sale Of The Libellous Matter, John H. Pickering

Michigan Law Review

On April 25, 1938, plaintiff commenced suit for libel. Nine separate causes of action were set up by alleging nine different publications in successive issues of Liberty Magazine. The first publication was alleged to have occurred on or about April 17, 1937, the second on or about April 24, 1937, and the third on or about May 1, 1937. Defendant showed by affidavit that the issues were placed on sale ten days before the date printed on the cover so that the first issue was on sale by April 7, 1937, the second on April 14, 1937 and the third …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 38, Issue 4 of Michigan Law Review

The "Minimum Standard" Of The Treatment Of Aliens, Edwin Borchard

Michigan Law Review

During the meeting of the Committee of Experts for the Codification of International Law at Lima, Mr. Cruchaga Ossa of Chile contended that article 9 of the Montevideo Convention on the Rights and Duties of States made the equality of rights the maximum that could be claimed by any alien. He denied the existence of any "minimum standard" for the treatment of aliens; but remarked that even if there were one recognized in Europe the countries on this continent had in the first, second, fifth and seventh Inter-American Conferences committed themselves to the doctrine of absolute equality, which henceforth constituted …

Some Problems In The Enforcement Of The Antitrust Laws, Wendell Berge

Michigan Law Review

There has been much discussion through the years about the evils of monopoly, monopolistic practices, and unreasonable restraints of trade. We have always paid lip service to the ideal of free competition. But we have done little in this country to cope with these evils. We have done little to make our competitive ideal effective.

Inconsistencies In Public Utility Depreciation: Deduction Of Depreciation For Rate Base Purposes, Robert D. Haun

Michigan Law Review

When considering depreciation for rate base purposes the courts and the commissions speak of accrued depreciation, existing depreciation, actual depreciation, complete depreciation, realized depreciation, incomplete depreciation, and observed depreciation. Accrued, existing and actual depreciation all have the same meaning.

Contracts - Illegality - Collateral Agreements Under Home Owners' Loan Act, Roy L. Steinheimer

Michigan Law Review

In transactions under the Home Owners' Loan Act it is customary for the holder of the mortgage on the property on which a new loan is sought to agree with the H. O. L. C. to accept in full settlement of his claim bonds of the H. O. L. C. of a face value often times less than the amount of the obligation secured by the old mortgage. However, not infrequently the mortgagee also exacts from the home owner a collateral agreement under which the home owner gives him a new second mortgage on the property as security for an …

Labor Law - Collective Agreements- Validity After Change Of Union Affiliation By Employees, William F. Andersen

Michigan Law Review

Among the problems raised in magnified form by the AFL-CIO schism is the determination of rights and duties under a collective agreement when there is a change in affiliation of the members of the union which negotiated the agreement. Suppose that union A, as sole bargaining representative for the employees in the particular unit, has negotiated an agreement with the employer, that thereafter a majority of union A shift their allegiance to union B. Does the agreement continue to canter rights upon employees who have changed their affiliation? Upon the employees who have not changed their affiliation? This …