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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.

Measures Of Land Value For Utility Regulation, Lrston R. Barnes

Michigan Law Review

The appraisal of the land of utility corporations presents problems that are not encountered in the valuation of other utility properties. The basic principles and methods of appraisal applicable to other properties are considered inappropriate for the valuation of lands, and certain inconsistencies between the treatment of land and other properties suggest embarrassing questions as to the principles which should guide the regulation of utility rates. Two concrete problems may serve to provide orientation for the discussion which follows: What elements of cost imposed on utilities in the acquisition of real estate are entitled to consideration in establishing rates? To …

Adverse Possession - Future Interests - Adverse Possession Against Remaindermen, Harold M. Street

Michigan Law Review

The life tenant of the premises in controversy purported to convey a fee title to defendant in 1920 and defendant has been in continuous possession claiming a fee title ever since. The life tenant died in 1931, and in 1938 the plaintiff remainderman commenced an action to clear his title and recover possession. The defendant claimed title by adverse possession on the ground that, since the remainderman had a statutory right to bring a suit to quiet title during the pendency of the life estate, the present action was barred by the ten year statute of limitations on actions to …

Eminent Domain - Measure Of Compensation - Admissibility Of Evidence Of Past Profits, Alfred G. Ellick Jr.

Michigan Law Review

Plaintiff corporation, lessee for a term of ten years of a tract of real estate located at the intersection of a main highway and the tracks of the lessor railroad, was engaged in the poultry business and in the retail buying and selling of automobile equipment. The location of the plaintiff's leasehold enabled the plaintiff to effect many economies in the operation of its business. The defendant municipality constructed a viaduct over the railroad tracks in such a manner that, while none of the plaintiff's property was actually taken, its usefulness as a retail outlet was destroyed. Plaintiff brought suit …

Trusts - Apportionment Of Annual Taxes Between Life Tenant And Remainderman, Charles F. Dugan

Michigan Law Review

Annual taxes on real estate in Massachusetts were assessed on January 1 of each year, and were payable on July and October l, The will set up a trust to pay income to the tenant for life, and to pay the principal to the remainderman. The trustees sought to retain sufficient funds out of income to meet the next year's taxes, fearing that the tenant might not live long enough after January 1 to accumulate sufficient income to meet the taxes, and they brought this bill for instructions. The probate court entered a decree sustaining the trustees' contentions. On appeal, …

Trusts - Power Of Settlor-Beneficiary To Terminate Spendthrift Trust, Roy L. Rogers

Michigan Law Review

The plaintiff established a trust fund, the income from which was to be paid to herself for life, remainder as she should appoint by will or in default of appointment to her next of kin. The trust instrument contained spendthrift provisions, and an express provision against revocation. Subsequently the value of the corpus declined, income dwindled to practically nothing, and plaintiff became practically destitute. Held, the trust, failing to accomplish its purpose, may be terminated. Rehr v. Fidelity-Philadelphia Trust Co., 37 Pa. D. & C. 324 (1939).

Criminal Law And Procedure - Extradition Of A Juvenile Delinquent, Felicia I. Hmiel

Michigan Law Review

The state of Georgia, by an acting justice of peace of a county, charged a thirteen-year-old boy with the crime of assault with intent to murder. Under the Georgia Criminal Code the offense was punishable by imprisonment in the penitentiary for a term of two to ten years. The boy was found in the state of New York, whereupon the governor of Georgia sent a requisition for extradition to the governor of New York. The boy defendant brought a habeas corpus proceeding in a New York court to obtain release from custody under the extradition warrant. Held, the defendant …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 39, Issue 1 of Michigan Law Review

The Premises Of The Judgment As Res Judicata In Continental And Anglo-American Law, Robert Wyness Millar

Michigan Law Review

That every judicial judgment, whatever its character, consists of premises and conclusion is a fact sufficiently obvious. In our system, especially, expression of the premises must very often be sought outside the actual judgment-order and collected from other parts of the judicial record or even from evidence aliunde of what took place at the hearing. But the legal nature of the relation between premises and conclusion is independent of the particular structure of the record and the mode of ascertaining what those premises were. Given satisfaction of the requirements of the law with respect to identity of parties, it is …

Some Problems Arising Out Of Deposits To Pay Principal And Interest On Bonds, Paul P. Lipton

Michigan Law Review

Since Lawrence v. Fox contracts students have been puzzled by the numerous and varying relations that may arise when A, the debtor, delivers money to B to pay C, his creditor. Equally puzzling and much more complicated are the rights and relations of the obligor, trustee and bondholders with respect to sums deposited with the trustee to pay principal and interest on bonds.

The insolvency during recent years of many large trust companies that had been named as trustees in indentures securing corporate bonds, having on hand at the time of their failure large sums of money which …

Bankruptcy-Corporate Reorganization-Publicly Held Securities As A Test Of Availability Of Relief Under Chapters X And Xi Of The Chandler Act, Edward S. Biggar

Michigan Law Review

Chapter X of the amended Bankruptcy Act of 1938 was mainly the product of the investigation by the Securities and Exchange Commission of reorganization practices under the old equity procedure and under section 77B. The chief aim of the sponsors of this new chapter was to preclude the control of reorganization proceedings by "inside" groups, and thereby more adequately protect the interests of investors. Contemporaneously with the overhauling of section 77B, however, other sections of the old Bankruptcy Act were being revised. Among the changes effected, old sections 12 and 74, dealing with extensions and compositions, were remodelled and combined …

Marriage And Divorce - Power Of Court To Modify Decree For Alimony Or Property Settlement As Affected By Agreement Of The Parties, Roy L. Rogers

Michigan Law Review

Contracts settling the property interests of a husband and wife or providing for support of the wife or for both of these ends are no doubt valid in all jurisdictions where the parties may contract with each other if the purpose is not to facilitate divorce or future separation. Even at common law, separation agreements could be made, however, through the intervention of a trustee. If not invalid, the contract may ordinarily be enforced in an action on the promise. But, when a divorce is decreed, it is quite often the practice to incorporate in the divorce decree the provisions …

Constitutional Law - Labor Law - Peaceful Picketing Guaranteed By Due Process Clause Of Fourteenth Amendment, Eugene T. Kinder

Michigan Law Review

In the recent Thornhill and Carlson decisions the Supreme Court of the United States declared an Alabama statute and a California county ordinance prohibiting all picketing, peaceful or otherwise, unconstitutional on the ground that such broad legislation deprived employees and union members of their right of free speech, guaranteed by the due process clause of the Fourteenth Amendment to the Constitution of the United States. In holding that employees and workers have a constitutional right to publicize the facts of a labor dispute, the Court was but taking another step in its recent crusade for the preservation of civil liberties. …

Public Utilities - Municipal Corporations - Power Of Municipal Corporations To Regulate Public Utility Rates - Finality Of Such Regulation, John S. Pennell

Michigan Law Review

Since the decision in the case of Munn v. Illinois it has been settled that where property is devoted to a public use and is charged with a public interest, the state may prescribe reasonable rates for such public service. However, the question then arises as to the manner in which the state may prescribe these rates, through what agencies it may act, and the effect on the total picture of rate regulation within a state after there has been action by one of the proper agencies. The answers to these questions depend to a large extent upon the particular …

Admiralty - Workmen's Compensation - Longshoremen's Act Status Of Worker On Vessel Withdrawn From Navigation But Moving On Navigable Waters, Michigan Law Review

Michigan Law Review

Plaintiff and five others were hired to load a lake freighter with cargo for winter storage. They were hired by the day and none lived aboard the vessel, which had been out of commission for a year. Plaintiff assisted in towing the vessel to the elevator dock and worked on deck while the cargo was being loaded. While shifting the vessel along the dock, plaintiff's hand was crushed in a winch. Plaintiff brought an action at law under the Jones Act. Held, plaintiff is not a seaman within the terms of that act, nor "a member of a crew" …

Carriers - Interstate Commerce - Stockyard A Common Carrier, John L. Rubsam

Michigan Law Review

The Union Stock Yard and Transit Company of Chicago performed the services of loading and unloading livestock at its stockyards in Chicago. It neither owned nor controlled any railroad directly or indirectly, but restricted its transportation service to the loading and unloading of livestock as specified in its tariff. It owned the platforms and chutes which were the necessary and only means of loading and unloading at its yard, to and from which the livestock was shipped interstate by rail. For this service it charged the railroads the scheduled rates. Appellant contended that, having divested itself of all control and …

Carriers - Motor Carrier Act Of 1935 - Issuance Of Certificates Of Convenience And Necessity, William H. Hillier

Michigan Law Review

Applicant petitioned the Interstate Commerce Commission for a certificate of public convenience and necessity to operate a transcontinental bus line, claiming that it offered a distinct type of low-cost service, that by so doing it attracted a portion of the travelling public not served by other carriers, that its through-trip features were a special convenience to its passengers, and that meals en route were included in its fare charges, which were slightly lower than those of existing carriers. The protesting carriers claimed that existing bus facilities could amply handle all of applicant's traffic, that competition in the motor bus field …

Charities - Torts - Liability Of Charitable Corporations For Their Torts, Raymond H. Rapaport

Michigan Law Review

Plaintiff was employed by defendant to assist in the work of redecorating defendant's building, and was injured because of defendant's alleged failure to provide a suitable place to work. To plaintiff's plea for damages defendant answered that since it was a charitable corporation it was, therefore, immune from such action. Held, charitable corporations are not immune from liability for torts by reason of any exemption accorded them on the basis of the purposes for which they were incorporated. Gable v. Salvation Army, 186 Okla. 687, 100 P. (2d) 244 (1940).

Constitutional Law - Due Process - Freedom Of Religion And Conscience - Compulsory Flag Salute, William F. Andersen

Michigan Law Review

The minor plaintiffs, aged twelve and thirteen, had been excluded from the public school because of repeated refusal to salute the national flag and recite the pledge of allegiance in accordance with an authorized order of the school board. They sought an injunction in the federal district court against such prohibition, alleging that the order violated the Fourteenth Amendment as an infringement on the free exercise of religion in that their beliefs forbade the revering of anything but God. The injunction was granted and the decree was affirmed by the circuit court of appeals. A writ of certiorari was granted …

Contracts - Intervening Impossibility - Nature Of Excuse Under Casualty Clause, Edmund R. Blaske

Michigan Law Review

The plaintiff sought to compel the performance of a contract by which the defendant obligated himself to make deliveries of logs in specified months. The contract contained the following casualty clause: "And the seller is not liable for delay or nonshipment or for delay or nondelivery if occasioned by . . . strikes, lockouts, or labor disturbances. . . . Buyers agree to accept delayed shipment and/ or delivery when occasioned by any of the aforementioned causes, if so required by the seller, provided the delay does not exceed thirty days." When performance got under way, the longshoremen's strike intervened …

Contracts - Sales - Effect Of Reasonable Belief In Buyer's Insolvency On Seller's Duty To Perform, W. Wallace Kent

Michigan Law Review

The plaintiff ordered goods from the defendant, for immediate delivery, terms $1,500 down, balance covered by notes of three and six months. The check given for the down payment was dishonored because of insufficient funds but was subsequently honored. On investigation the defendant discovered that there were unpaid judgments outstanding against the plaintiff, some of which were upwards of three years old. Inferring that the plaintiff was insolvent, the defendant refused to deliver the goods unless cash was paid therefor and when plaintiff refused this offer defendant attempted to return the down payment. Held, plaintiff's affairs were in such …

Descent And Distribution - Inheritance Through Illegitimate Child - Iowa Statute, James W. Deer

Michigan Law Review

This action involved a determination of the heirs of A, a widow, whose deceased husband, B, was an illegitimate child. Three sets of claimants asked for her estate: the legitimate descendants of B's mother, the legitimate descendants of B's father, and the state of Iowa, the domicile of the deceased. The district court awarded the property to the state, as uninherited property, on the ground that the other claimants could not take through an illegitimate. On appeal, reversed. An Iowa statute provided that an illegitimate child could inherit from his mother, and from his father, when …

Eminent Domain - Power Of The Federal Government To Condemn Land In Public Use For An Inconsistent Federal Use, Robert P. Kneeland

Michigan Law Review

Defendants, landowners and next of kin of persons buried in a cemetery which was being subjected to condemnation, moved to dismiss the federal government's petition for condemnation of such lands on the grounds that the federal statutes did not authorize the United States to take land already dedicated to a public use for an inconsistent use; and that public cemeteries were not subject to the United States' power of eminent domain. The land was being condemned to effectuate a federal project under the National Industrial Recovery Act and the Federal Emergency Relief Appropriations Act of 1935, and was for public …

Insurance - Insurable Interest In Life - Right Of Insured To Designate Beneficiary Without Insurable Interest, William D. Sutton

Michigan Law Review

The Metropolitan Life Insurance Company issued a group insurance policy in the sum of $500 upon the life of appellant's husband. The husband paid all the premiums and designated a niece, appellee, the beneficiary therein. Several years prior to the issuance of the policy appellant had ceased to live with the insured, although a divorce had never been obtained. Appellant contested the recovery of the proceeds by appellee on the ground that said niece had no insurable interest in the life of insured. Held, judgment of the trial court awarding proceeds to appellee affirmed, on the ground that appellee …

Insurance - Right Of Insurer Against An Insured Who Has Released The Tortfeasor After Receiving Payment From The Insurer, James A. Lee

Michigan Law Review

Plaintiff insured the defendant against loss on his car due to collision, paid its liability when the defendant's car was damaged by a third party, and took an assignment of plaintiff's claim against the third party to that extent. Defendant then released the third party from liability and plaintiff brought this action to recover the amount paid to the defendant. Held, plaintiff could recover from defendant only for the loss it had sustained by the release, and since plaintiff had failed to prove it could have recovered anything from defendant, it had shown no cause of action. Century Ins. …

Taxation - Income Tax - Interest On Condemnation Award As Capital Gain, John L. Rubsam

Michigan Law Review

Petitioner's land was condemned by the city of New York and as compensation he was awarded a certain sum representing the value of the land and, in addition, a sum classified as "interest" to indemnify the petitioner for delay in payment of the award. The award so classified as "interest" was taxed as "ordinary income" by the commissioner of internal revenue. It was petitioner's contention that such sum denominated as "interest" should have been classed as a "capital gain" and not as "ordinary income." From an order of the board of tax appeals holding this sum "ordinary income," petitioner appealed. …

Trusts - Constructive Trusts - Preferential Claim Against Bank's Assets For Deposits Made After Hopeless Insolvency, James W. Deer

Michigan Law Review

On proclamation by the governor of the so-called bank holiday, the Union Guardian Trust Company was closed as of February 11, 1933. The evidence showed that within nine months of closing the company had made provision for obtaining $2,500,000 by pledging assets, had received loans amounting to $12,000,000 from the Reconstruction Finance Corporation, and was conferring frequently with the officers of· that agency to negotiate an additional $44,000,000 loan. Under the authority of emergency legislation passed after the bank holiday, a conservator was appointed. By the plan of reorganization all the assets of the company were set aside in a …

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.

Scope Of The Business: The Borrowed Servant Problem, Talbot Smith

Michigan Law Review

If your client wants to erect an office building he may be advised of the cost within narrow limits. The necessary expenditure will be X dollars plus Y lives or limbs. If his talents take the turn of bridge construction similar computations may be made. To carry forward to completion either of these projects he must use materials of various kinds, and he must use men. The expenditure of the human, animate, material is as inevitable as the expenditure of the inanimate. With increased care and skill the curve of expenditure of the human material will approach the asymptote of …