Digital Commons Network^™

Evidence -Witnesses - Privileged Communications Between Physician And Patient--Statutory Effect Of Asserting Privilege In Actions On Insurance Contracts, William H. Buchanan S.Ed.

Michigan Law Review

Plaintiff, beneficiary of an insurance policy (but not the personal representative of the deceased insured), sued to recover the amount of the policy from the insurance company. As a defense the defendant claimed that the policy never became effective because the insured had made material misrepresentations in the application as to his state of health. To show that there had been such misrepresentations, the defendant proved that the insured had been treated by physicians during the five years preceding the issuance of the policy. Upon objectionμ by plaintiff the court excluded the testimony of the doctors as to the nature …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 45, Issue 1 of Michigan Law Review

Optional Terms (Jus Dispositivum) And Required Terms (Jus Cogens) In The Law Of Contracts, Arthur Lenhoff

Michigan Law Review

In speaking of statutory law in the common law courts, lawyers have ascribed to it a limiting office, namely, that of interference with the parties' freedom to act and transact at their pleasure. A closer consideration shows them that the function of statutory law varies not only with the legal system to which it belongs, but also with the structural changes within a single legal system.

Master-Servant-Subrogation-Right Of The United States To Recover For Injuries To A Soldier Caused By The Negligent Act Of Another, John R. Dykema

Michigan Law Review

On February 7, 1944, an enlisted soldier in the Army of the United States was injured in a traffic accident in Los Angeles, California, through the negligence of an agent of appellant; he was incapacitated for duty for a period of twenty-nine days. The United States paid his hospital expenses, and also his salary during this period, amounting to a total of $192.56. In March, 1944, the soldier, in return for three hundred dollars, executed a release to appellant "from any and all claims and demands" on account of the accident. The United States sued in the Federal District Court …

Banks-Fiduciary Duty-Guilty Participation In A Breach Of Trust, Robert O. Hancox

Michigan Law Review

The fiduciary relation which "involves a duty on the part of the fiduciary to act for the benefit of the other party to the relation as to matters within the scope of the relation" is of broad scope, including not only the more strictly defined relations such as those involving trustees, guardians, and executors, but also the more loosely knit relations such as found in the corporate field; i.e., directors and stockholders, promoters and subscribers to stock and the like. In contrast to the confidential relation, where to set aside a transaction between the parties there must be shown fraud, …

Renegotiation Of War Contracts-Exhaustion Of Administrative Remedies, Rosemary Scott S.Ed.

Michigan Law Review

Plaintiff sought to enjoin the Chairman of the United States Maritime Commission from enforcing the War Contracts Renegotiation Act against its contracts with the British Ministry of War on the ground that they were outside the scope of the act, and attempted to obtain a declaratory judgment to this effect. Prior to this proceeding the plaintiff had been given notice and had been requested to attend a conference. He filed an objection to the authority of the Maritime Commission which, in turn, contended that the United States was responsible for payment under the contract and that the administrative remedies had …

Constitutional Law-Removal Of Executive Employees By Act Of Congress-Bill Of Attainder, John A. Huston S.Ed.

Michigan Law Review

Respondents, three employees of the federal government, were, among other federal officeholders, accused by Congressman Martin Dies of having engaged in subversive activities and were investigated by a special subcommittee of the House of Representatives on that charge. Upon a report of this committee that the respondents were guilty of such activities, the House attached a rider, in section 304, to the Urgent Deficiencies Appropriation Act, 1943, which prohibited, after November 15, 1943, the application of any appropriation to the payment of respondents' compensation, except as jurors or members of the armed forces, unless prior to November 15 they should …

Constitutional Law-Martial Law-Trial Of Civilians By Military Tribunals In Hawaii, Robert Cardon

Michigan Law Review

On the day of the attack on Pearl Harbor, the Governor of Hawaii suspended the writ of habeas corpus and declared martial law in that territory, acting under authority of the Organic Act of Hawaii. At the Governor's request, the Commanding General of the Hawaiian Department of the Army proclaimed himself Military Governor of the Islands, and established military tribunals to try all violations ,of existing federal laws and military regulations thereafter to be promulgated. The following day all civil courts were closed, and the next day the President approved the Governor's action. One week later, the law courts were …

Insurance-Beneficiaries-Right To Change Beneficiary Where Beneficiary Has Paid All The Premiums, Howard A. Jacobs

Michigan Law Review

Insured's mother, who was the original beneficiary of a life policy, paid all the premiums before and subsequent to the time when insured's wife was substituted as beneficiary. The mother was interpleaded in the wife's suit on the policy. Held, in the absence of a collateral agreement creating a4ditional rights in the mother, the payments were gratuitous and created no vested interest in the mother in the proceeds of the policy, where the right to change the beneficiary was reserved; and that the wife was entitled to the proceeds on the insured's death. McCloud v. Aetna Life Ins. Co. …

Constitutional Law - Intergovernmental Immunities - Statutory Construction-Applicability Of Price Control Legislation To Sales By States, John F. O'Connor

Michigan Law Review

The Administrator, Office of Price Administration, brought action against the Commissioner of Public Lands of the State of Washington to enjoin the sale of timber on state school lands at a price in excess of that fixed by Price Regulation No. 460, implementing the Emergency Price Control Act. The lands were granted to the state for the support of common schools by the Congressional Enabling Act which admitted Washington to the Union. The state law required the sale of such timber to the highest bidder. On certiorari from the circuit court of appeals which reversed a judgment of the district …

Corporations--Foreign Corporations--Doing Business By Agents--Comity, E. M. Deal

Michigan Law Review

The plaintiff, an Illinois corporation, offered correspondence courses in refrigeration and air conditioning. One of its agents solicited the defendant in Lincoln, Nebraska. The defendant signed a contract and promissory note for the tuition and made an advance payment, whereupon the agent forwarded the contract, note, payment and other papers to the home office of the plaintiff corporation in Chicago, Illinois. The plaintiff accepted the contract in Illinois. After six months, the defendant refused to proceed with the lessons or make further payments in accordance with the contract. The plaintiff sued for the balance due on the note. The Nebraska …

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.

Current Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-four leading law reviews. The index embraces material published since the last issue of this REVIEW.

Labor Law-Some Developments During The Past Five Years-(A Service For Returning Veterans), Russell A. Smith

Michigan Law Review

It will be helpful in appraising labor relations problems of today to recall that unionism in this country has trodden a rough and thorny path over the past century. Unions were not welcomed by employers, worker inertia itself was a considerable obstacle, and by and large the general public was dubious as to the value of unionism. Facing these difficulties unions from the- beginning felt compelled to resort to self-help--the strike, the picket line, the boycott, etc.--to achieve their aims. In so doing they encountered vigorous and successful opposition in the courts, as injured economic interests, and even the government, …

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.

Innkeepers-Failure Of Guest To Disclose Character Of Contents Of Baggage As Negligence, Kenneth Liles

Michigan Law Review

In an action seeking damages, based on the alleged negligence of a bailee for hire in causing the loss in transit of a salesman's stock of valuable jewelry, because the departing bailor-guest's failure to disclose the extraordinary value of the contents of his trunk amounted to negligence, held, recovery denied. Shiman Bros. & Co., Inc. v. Nebraska National Hotel Co., (Neb. 1945) 18 N.W. (2d) 551.

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 44, Issue 6 of Michigan Law Review

Recent Developments In Patent Law, Arthur M. Smith

Michigan Law Review

The framers of the Federal Constitution shared with Thomas Jefferson his "wish to see new inventions encouraged, and old ones brought again info useful notice." Their concern for the public welfare caused many, including Jefferson, to question the wisdom of using a limited monopoly to encourage such inventions.

Implied Warranties Of Non-Infringement, Louis Robertson

Michigan Law Review

When a manufacturer or dealer sells a product, is there an implied warranty that the product does not infringe adversely-owned patents? In other words, does the purchaser who is successfully sued for infringement have the right, without an indemnity clause, to be indemnified by the seller?

Many lawyers, especially patent lawyers, who are accustomed to advising the insertion of express patent warranties in sales contracts to take care of the matter, have answered this question instantly and positively in the negative, and it is quite possible that according to fundamental principles of implied warranties they are right, and yet all …

Precedent In Past And Present Legal Systems, C. Sumner Lobingier

Michigan Law Review

The prevailing notion that stare decisis is peculiar to the Anglican Legal System is quite provincial and far from correct. On the contrary, the principle is inherent in every legal system, at least in its primitive stage; for the earliest form of law is custom, and the "core of custom" is precedent, not necessarily judicial, but something quite as authoritative.

The Effect Of Regulation T On Cash Transactions In Securities, Franklyn S. Judson, Frank D. Emerson

Michigan Law Review

Even a casual glance at the financial page of almost any daily newspaper will at once bring forcefully to the attention of the reader the fact that the inflationary trend now being experienced by the commodity, real estate, and labor markets is likewise a factor in the securities market. A tremendous increase in the market prices of many securities has recently been experienced. A large number are at or near all-time highs. Likewise, the volume of trading is almost without precedent in the annals of the securities business.

Aeronautic Servitudes: A Comparative Study, José Ignacio Perdomo-Escobar

Michigan Law Review

Air servitudes may be of two types: international servitudes, regulated by the law of nations, or servitudes of domestic public law, regulated by administrative law.

Administrative Law-Exhaustion Of Administrative Remedies As A Prerequisite To Judicial Review-Discretionary Treatment By Federal Courts, James E. Dunlap S.Ed.

Michigan Law Review

The recent Supreme Court decision in Levers v. Anderson held that the rule that one must exhaust his administrative remedies before he is entitled to judicial review does not operate automatically so as to preclude judicial relief when such relief has been expressly permitted by statute. Stated in this way, it is difficult to see how one could reach a different conclusion. Nevertheless, it is believed that this decision, which resulted in a reversal of a circuit court's judgment, did much to remove certain confusion in this field.

Contracts-Release-Misrepresentation By Releasor's Attorney- Avoidance By Releasor For Unilateral Mistake As To Contents, Neil Mckay S.Ed.

Michigan Law Review

Under the objective theory of mutual assent, which bases the imposition of contractual obligations on the expressed intent of the parties, rather than on a subjective meeting of their minds, the law has generally granted relief to the signer of a contract who is under a misapprehension as to its contents only where he can show that the mistake was made without negligence on his part. The theory of affording relief in such a case apparently is that the instrument does not really represent the expression of the signer's intent, and the contract is, therefore, void at its inception. In …

Corporations --Voting Trusts -- Non-Compliance With Statute As A Basis For Judicial Termination, Joseph R. Brookshire S.Ed.

Michigan Law Review

It is not the purpose of this comment to discuss the history of the voting trust, to recapitulate the controversy over its legality, or to examine the many grounds for termination of the trust. It is sufficient to say that in all but perhaps three states this important business device has been made legal by statute or by judicial decision. We are here concerned with finding the degree of statutory compliance necessary in order that the voting trust will be sustained.

Domestic Relations-Recent Developments (A Service For Returning Veterans), John S. Bradway

Michigan Law Review

During the past five years family life in America has been subjected to unusual strains. The repercussions of the war, as well as the usual peacetime factors, affecting the domestic circle have received attention of sociologists and lay writers. The legal implications have not made such prompt appearance in published form.

Information as to that part of the impact of family dislocation caused by war is available in many places, none the least important being the records in the offices of legal assistance officers in the armed forces, of the Committees on War Work set up by the American and …

Constitutional Law-Due Process-Retroactive Application Of Statute Of Limitation To Previously Barred Claim, James R. Bliss

Michigan Law Review

In 1943 appellee Rowley, filed claim with the Department of Labor and Industry, under the Washington Industrial Insurance Act, for compensation for aggravation of an injury suffered, while employed by appellant in 1937, in the course of his employment. The claim was barred by a provision of the then existing statute which placed a three year limit on the filing of such claims; but by amendment in 1941 the time limit was extended to five years, with a proviso, under which appellee claimed, that "any such applicant whose compensation has heretofore been established or terminated shall have five years from …

Constitutional Law-Public Utility Holding Company Act--Validity Of Holding Company "Death Sentence" Clause, John A. Huston

Michigan Law Review

Petitioner was the topmost holding company in a public utility holding company system which included eighty subsidiaries and served three million customers in seventeen states. By provision of section 11 (b) (1) of the Public Utility Holding Company Act of 1935, the Securities and Exchange Commission was empowered to limit the operations of a holding company registered with it under the act to "a single integrated public utility system." Acting under this authority, the commission ordered petitioner, a registered company, to divest itself of all its subsidiary holdings excepting certain interests regarded by the commission as a single integrated system …

Constitutional Law--State Taxation Of Interstate Commerce, George Brody S.Ed.

Michigan Law Review

The city of Richmond by ordinance required all solicitors to pay an annual tax before being permitted to solicit business within the city. Appellant, a representative of a Washington, D.C. firm, was arrested for soliciting without having previously procured the required license. Appellant was convicted and her conviction was upheld by the Supreme Court of Appeals of Virginia. On appeal to the United States Supreme Court she contended that the statute upon which her conviction was based was unconstitutional, inasmuch as it was repugnant to the Commerce Clause of the Federal Constitution. Held, reversed. Taxes that discriminate against interstate …

Insurance-Construction Of Policy-"Military Or Naval Service" Clause-"Aviation" Clause, Paul J. Keller, Jr., S.Ed.

Michigan Law Review

Plaintiffs, six minor children of deceased, were beneficiaries of a $20,000 life insurance policy issued to deceased while a member of the United States Army. Traveling under Army orders, the deceased procured a permit from the operations officer at an Army airfield in Puerto Rico for space on a regular Army transport route to another Army field in Puerto Rico. The plane crashed, killing all of its occupants. The policy issued to the deceased contained an "aviation" clause and a "military service" clause, under both of which the defendant insurance company rests its defense. Held: Deceased was a "fare-paying …