Digital Commons Network^™

Intoxicating Liquors -The New Michigan Amendment

Michigan Law Review

The people of the State of Michigan at the last general election ratified an amendment to section 11, Article 16 of the state constitution, the so-called prohibition section, to authorize the legislature to establish a liquor control commission and to impose an excise tax on liquor sales. In accordance with constitutional provisions this amendment went into effect on December eighth last. As the new amendment is drafted it leaves unsettled at least three important matters: (1) The present law in Michigan on the subject of intoxicating liquors; (2) The powers vested by it in the legislature and the liquor control …

Constitutional Law-Res Judicata In Federal Courts

Michigan Law Review

In American Surety Company v. Baldwin the Surety Company had chosen the state courts of Idaho as its forum for determining the issue of liability upon the supersedeas bond and had pursued its remedy to the Supreme Court. Then it sought to re-open the issue and inject a federal question by bringing an action to enjoin the enforcement of the judgment in the federal courts in Idaho. It was held that the doctrine of res judicata prevented a resort to an independent hearing in the federal courts in that State. American Surety Company v. Baldwin, (U.S. 1932) 53 Sup. …

Constitutional Law - Requirements Of Due Process In State Procedure

Michigan Law Review

In American Surety Company v. Baldwin the Surety Company complained that the procedure in Idaho deprived it of a hearing upon its liability on a supersedeas bond. After judgment was given on the bond the Surety Company moved to vacate the order and the motion was granted. Baldwin took an appeal from this order to the Supreme Court of Idaho which reversed the trial court. The sole question raised by the motion was whether the trial court had jurisdiction to give judgment. Under the Idaho practice an appeal from the judgment of the court was the proper method to review …

Constitutional Law-Power Of President To Approve A Bill After Final Adjournment

Michigan Law Review

The final adjournment of the 71st Congress occurred on March 4th, 1931. The day following, President Hoover signed Private Bill No. 510 (46 Stat. 2163) giving the Court of Claims jurisdiction to adjudicate the claims of one Edwards against the government. The question of the bill's validity was presented to the Supreme Court on certificate from the Court of Claims, and it was held valid. Edwards v. United States, (U.S. 1932) 52 Sup. Ct. 627.

Practice And Procedure - Declaratory Judgment

Michigan Law Review

Plaintiff brought an action under the Uniform Declaratory Judgments Act to be adjudged the lawful child of J. C., deceased. A demurrer upon the grounds that no cause of action was stated and that the court lacked jurisdiction of the subject matter was sustained. On appeal, held, error. The question of status can be determined under the Act independent of any controversy relating to other rights. Miller v. Currie, (Wis. 1932) 242 N. W. 570.

Torts -Attractive Nuisance

Michigan Law Review

Dynamite caps were left on the banks of a slush pit near defendant's gas well. Cultivated fields immediately around the pit were under lease to a Mr. Bradshaw whose small boy, trespassing upon defendant's pit, found the dynamite caps and showed them to his father who permitted the boy to play with them, thinking that the caps had been exploded. Later the Bradshaw boy gave them to plaintiff, aged five, who drove a nail into a cap which exploded and injured him. Evidence showed that there was a path near the slush pit, and that children frequently crossed the field …

Torts - Malicious Prosecution - Termination Of Previous Proceeding In Favor Of Plaintiff

Michigan Law Review

Plaintiff gave a note with power of attorney to confess judgment, to X who assigned to defendant. Plaintiff paid the note before maturity. On maturity, defendant got a judgment by confession and levied on plaintiff's property. Thereupon plaintiff asked the court to set aside the judgment, and a hearing was granted for the purpose, but the evidence showed that instead of proceeding to a hearing the parties agreed that defendant should mark the judgment satisfied. This was done. Plaintiff later sued for malicious prosecution. Held, that since the prior suit did not terminate in his favor plaintiff could not …

Book Notes And Notices

Michigan Law Review

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

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 31, Issue 3 of Michigan Law Review

Effect Of A Restriction On Assignment In A Contract, Grover C. Grismore

Michigan Law Review

The early common law took a strictly logical view in regard to the assignability of contract rights and duties. Since a contract is essentially a personal relationship voluntarily entered into by the parties to it, it follows as a logical deduction that one of the parties should not be allowed to destroy that relationship by introducing a third person into it in his place without the consent of the other party. This was the view of the early common law. However, in the course of time, as we know, the commercial spirit gradually made inroads into this doctrine until we …

Insurance - Civil Death Of Insured As Effecting Acceleration Of Endowment Policy

Michigan Law Review

An endowment policy was made payable to insured if he should live to the policy anniversary date next preceding his sixtieth birthday, otherwise to his executors or administrators. Four years after the policy was taken out, insured was sentenced to life imprisonment for killing his wife. A statute provided that the estate of a person incarcerated for life "shall be administered upon and distributed, and his contracts and relations to persons and things are affected, in all respects, as if he were dead." In an action on the policy by the administrator of insured, held, that imprisonment of insured …

Insurance - Civil Death Of Insured As Effecting Acceleration Of Endowment Policy

Michigan Law Review

An endowment policy was made payable to insured if he should live to the policy anniversary date next preceding his sixtieth birthday, otherwise to his executors or administrators. Four years after the policy was taken out, insured was sentenced to life imprisonment for killing his wife. A statute provided that the estate of a person incarcerated for life "shall be administered upon and distributed, and his contracts and relations to persons and things are affected, in all respects, as if he were dead." In an action on the policy by the administrator of insured, held, that imprisonment of insured …

Torts -Trespassers - Statutory Non-Liability Of Railroads

Michigan Law Review

Plaintiff, five years of age, was leaning over the edge of defendant's bridge, looking into a canal, when a train was backed into standing cars without warning, and plaintiff was injured. Children were accustomed to play on the bridge, despite the presence of "Danger - No Trespassing" signs. Plaintiff recovered judgment in the trial court, and the judgment was affirmed by the circuit court of appeals, but the Supreme Court of the United States held that the New Jersey statute section 55 of the Railroad Act, "negatived the attractive nuisance and implied invitation doctrines," and reiterated the so-called "Massachusetts Rule" …

Bills And Notes - Holders In Due Course - Notice To A Corporation

Michigan Law Review

The plaintiff, as assignee of certain negotiable bonds, brought replevin to recover the same from the defendant who had acquired them as collateral on certain loans made to the thieves. The plaintiff proved that blanket notices of the theft had been sent to a number of banks, including the defendant bank, before the bonds were accepted as collateral, thereby raising a presumption that the notice was received by the mailing clerk of the bank. The officers of the defendant trust company denied having seen the notice or having knowledge of it at the time of the acceptance. Held, since …

Constitutional Law - Federal Questions Reviewable By The Supreme Court

Michigan Law Review

Two cases decided by the Supreme Court at the October, 1932, term of Court raised important questions of federal practice and due process of law. Judgment was rendered, on motion, without notice, pursuant to the terms of the bond, against the American Surety Company on a supersedeas bond given in an action in which the Singer Sewing Machine Company and one Anderson were the defendants in the trial court after the Supreme Court of Idaho had affirmed the judgment of the trial court as to Anderson and reversed it as to the Sewing Machine Company. An order of the trial …

Carriers - Liability Of Interstate Connecting Carriers Governed By Filed Tariff Or Through Bill Of Lading

Michigan Law Review

Goods were shipped from Maine to El Paso, Texas, on a through bill of lading which provided that the carrier in possession of the property described "shall be liable as at common law for any loss thereof or damage thereto." The goods were destroyed by fire, without negligence, while in the possession of the Galveston Wharf Company. This company owned, in addition to certain piers, railroad trackage from these piers to connections with the delivering carrier and other railroads running out of Galveston. Its filed tariff provided that it should be liable only for negligence. Held, the Wharf Company's …

Insurance -Murder Of Insured By Beneficiary

Michigan Law Review

The plaintiff was the beneficiary of an insurance policy carried by her husband. After her conviction for his murder she brought an action against the insurance company to collect the proceeds. The lower court pronounced the defendant liable, gave judgment for the intervening administrator of the deceased's estate, and, in spite of a statute expressly directing insurance moneys in the hands of administrators to inure to the use of surviving widows, ordered that the plaintiff take nothing. On appeal by the insurance company it was held, in an excellent opinion reviewing all the authorities that there was no error. …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 31, Issue 2 of Michigan Law Review

Congressional Redistricting And The Constitution, Harold M. Bowman

Michigan Law Review

Is congressional redistricting by state legislatures an exercise of the lawmaking function, subject to the governor's veto power? Is fairness in such redistricting secured today either by federal statute or by the federal Constitution? Of these two questions, posed by recent events, the first has been completely answered; the second has been answered in part only -- breeding in its answer new and troublesome problems.

Torts - Liability Of Manufacturer To Remote Vendee

Michigan Law Review

In the now famous case of MacPherson v. Buick Motor Company the New York Court of Appeals was faced with the question of the liability of a motor manufacturer to a plaintiff who had purchased a car from a retailer and who had been injured at the time of the coIIapse of a defective wheel. In deciding that such a manufacturer owed a duty to use reasonable care in inspection of the wheels which were to be placed under the assembled car, Justice Cardozo said: "We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, …

Specific Performance - Chattel Contracts Performable In Installments

Michigan Law Review

The refusal of a court of equity to decree the performance of a contract relating to personalty is not based on any intrinsic. difference between land and chattels. Any distinction between them is entirely subordinate to the question whether an adequate remedy can be afforded at law. Yet constant repetition has imparted such a degree of rigidity to the rule that courts have been prone to forget the reason on which it rests. Nowhere is this fact more evident than in the field of installment contracts.

Bills And Notes - Acceleration Clause As Affecting Negotiability

Michigan Law Review

Defendant was sued on a note containing, among other acceleration clauses, a provision that if any holder deemed himself insecure at any time, the note should become immediately due and payable. Appealing from a summary judgment against him, the defendant contended that the instrument was nonnegotiable. Held, the acceleration provisions in the instrument did not destroy its negotiability. Dart National Bank v. Burton, 258 Mich. 283, 241 N. W. 858 (1932).

Bills And Notes - What Constitutes A Reasonable Time In Presenting A Check For Payment

Michigan Law Review

Defendant delivered to the plaintiff, at about 10 o'clock A. M., a check drawn on the B bank. The next morning at 10:30 o'clock the plaintiff's agent went to drawee to cash the check. As there was "a run" being made on the bank that day, the agent was forced to stand in line. After waiting from 10:30 o'clock in the morning to 1 o'clock in the afternoon, he left without cashing the check. The next day the bank failed to open its doors. In an action by the plaintiff to recover the debt covered by the check, the defendant …

Constitutional Law - Interstate Commerce - Tax On Gasoline Imported From Another State And Stored For Local Consumption

Michigan Law Review

The South Carolina Tax Act of 1930 levied a "license" tax of six cents per gallon on all persons who imported gasoline into South Carolina and kept it in storage there for purposes of local consumption, provided such gasoline had not already been subjected to the payment of license taxes upon the sale thereof by local dealers according to the gasoline tax acts of 1925 and 1929. The plaintiff imported gasoline from dealers outside the State, storing the gasoline in its tanks and using it for the purposes of its bleachery business. Held, that the 1930 Tax Act was …

Insurance - Fire Insurance - Jewelry Thrown Into Furnace

Michigan Law Review

Plaintiff had a fire insurance policy covering household goods, including jewelry. Plaintiff's servant, not realizing that an envelope contained two rings, threw the envelope into a waste basket, the contents of which were later thrown into the furnace. In a suit upon the policy a judgment was directed against the defendant. On appeal, it was held, two justices dissenting, that the loss was not covered by the policy because the fire was "friendly" rather than "hostile." Harter v. Phoenix Ins. Co., 257 Mich. 163, 241 N. W. 196 (1932).

Torts - Civil Damage Statutes - Proximate Cause

Michigan Law Review

Defendant Campion purchased "moonshine" liquor from defendants Wrabek and wife, and gave three drinks to plaintiff's husband who shortly thereafter became unconscious, was exposed to sub-zero weather on the street during the night, and froze his hands and feet which, as a result, were amputated. Plaintiff sued for loss of support under sec. 3239 Mason's Minn. Statutes 1927 (the "civil damage" act) which provided for such action by the wife against "any person, who shall by illegally selling, bartering, or giving intoxicating liquors, have caused the intoxication of such person." On an appeal from the court's judgment for defendants Wrabek …

Torts - Negligence -The Duty Element

Michigan Law Review

Plaintiff was the driver of a large motor coach which had skidded on an icy road and knocked down a telephone post, causing a wire, strung thereon, to sag across the road. Perceiving that defendant's approaching truck would run into the wire, plaintiff signalled defendant to stop, but defendant did not stop until his truck had struck the wire, pulling the pole over so that it hit the plaintiff. Held, one judge dissenting, that the question of defendant's negligence was for the jury. Kennedy v. Scott Transportation Co., (C. C. A. 2d, 1932) 60 F. (2d) 717.

Bills And Notes - Promissory Notes - Negotiability At Common Law

Michigan Law Review

Defendant contractors left a check for materialmen in the hands of a third party who appropriated the check to his own use and then, in lieu thereof, gave his own note to the materialmen who endorsed it to a bank and credited the contractors with the amount of the note. In an action by the materialmen against the contractors for services rendered and materials furnished, held, such acceptance and negotiation constituted a payment of the materialmen's claims. Riedman v. Macht, (Ind. App. 1932) 182 N. E. 87.

Trusts - Compromise Agreement As Means Of Terminating Testamentary Spendthrift Trust

Michigan Law Review

In Rose v. Southern Michigan National Bank, the Michigan Supreme Court refused to terminate a spendthrift trust composed of both real and personal property, although to end litigation upon the will all the parties in interest had signed a compromise agreement to terminate the trust according to the Michigan statute. There was no objection as to the fairness of the agreement, upon which ground the court might have refused to sanction the compromise under the statute. The decision seems to have been based upon the theory that to give effect to the compromise agreement would defeat the purpose of …

The Right To Comment On The Failure Of The Defendant To Testify, Andrew A. Bruce

Michigan Law Review

In 1931 the American Law Institute adopted a resolution to the effect that "The judge, the prosecuting attorney and counsel for the defense may comment upon the fact that the defendant did not testify."

In the same year the American Bar Association resolved: "That by law it should be permitted to the prosecution to comment to the jury on the fact that a defendant did not take the stand as a witness; and to the jury to draw the reasonable inferences."