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Michigan Law Review

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Municipal Corporations - Indebtedness - Use Of Mandamus To Compel Payment Of Judgment, John L. Rubsam Dec 1939

Municipal Corporations - Indebtedness - Use Of Mandamus To Compel Payment Of Judgment, John L. Rubsam

Michigan Law Review

Petitioner sought a peremptory order directed to the council of the city of Long Beach, to compel them to include in the 1939 budget a sum sufficient to pay a judgment obtained for materials furnished to the city. Held, the denial of application by the lower court was not an abuse of discretion, since payment of the judgment would have given the petitioner a preference over other creditors of the same class inasmuch as there were insufficient funds available to pay all claims of such class without crippling the city or working unusual hardship on taxpayers. Coombs v. Edwards …

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Municipal Corporations - Status Of A City Manager - Are His Functions Primarily Executive Or Legislative?, John H. Pickering Dec 1939

Municipal Corporations - Status Of A City Manager - Are His Functions Primarily Executive Or Legislative?, John H. Pickering

Michigan Law Review

When defendant city adopted the city-manager form of municipal government, it duly abolished by ordinance the board of police and fire commissioners and expressly assigned the board's powers and duties to the city manager. Among such powers was that of recommending salary decreases for firemen and policemen, without which recommendation a decrease by action of the council was invalid. After the abolition of the board of police and .fire commissioners, the council decreased the salary of plaintiff policeman without previous recommendation by the city manager. Plaintiff claimed that such action was invalid, and sued to recover the amount of the …

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Negligence - Contributory Negligence - Standard Of Care - Objective Or Subjective?, John H. Pickering Dec 1939

Negligence - Contributory Negligence - Standard Of Care - Objective Or Subjective?, John H. Pickering

Michigan Law Review

While anchoring a guy wire for a hay carrier on his farm, plaintiff suffered injuries caused by contact between the guy wire and a high tension line owned by defendant. After an answer denying negligence and setting up the defense of contributory negligence on the part of plaintiff, defendant had a directed verdict. Held, that the alleged contributory negligence of plaintiff was a question of fact for the jury which was to be guided by the standard of care of the ordinary, careful, prudent man in the situation of the injured party in all respects, the court saying, "We …

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Negligence - Escalator Not An Attractive Nuisance, Michigan Law Review Dec 1939

Negligence - Escalator Not An Attractive Nuisance, Michigan Law Review

Michigan Law Review

Plaintiff, a four-year-old child, accompanied his mother into defendant's department store. Having wandered over to a nearby escalator, he inserted his hand into the aperture where the steps go under the floor, and suffered the loss of two fingers for which injury this action was brought. Held, defendant's motion to dismiss the action was properly granted below, since an escalator, being an ordinary, common instrumentality constructed for ordinary and common use, is not an attractive nuisance. Kataoka v. May Department Stores Co., (D. C. Cal. 1939) 28 F. Supp. 3.

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Negligence - Liability For Injuries Following Emotional Disturbance - Fright Due To Plaintiff's Own Peril, Michigan Law Review Dec 1939

Negligence - Liability For Injuries Following Emotional Disturbance - Fright Due To Plaintiff's Own Peril, Michigan Law Review

Michigan Law Review

Plaintiff, a woman in good health, was caught in the defectively operated doors of the defendant's bus, as she was about to follow other passengers off the bus. She was released within two minutes. The doors of the bus being encased in rubber, plaintiff received no bruises, abrasions or other physical injuries; but she did suffer thereby a nervous disturbance manifesting itself in paralysis in several parts of her body. Held, plaintiff cannot recover for injuries resulting from emotional disturbance caused by the defendant's negligence because there was no physical injury concurrent with the emotional disturbance. Davis v. Cleveland …

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Sales - Implied Warranty By Victualler, Michigan Law Review Dec 1939

Sales - Implied Warranty By Victualler, Michigan Law Review

Michigan Law Review

Plaintiff purchased a meal at defendant's restaurant, in connection with which he was served contaminated drinking water obtained from defendant's well; he became ill from drinking the water. Plaintiff sued on the theory of implied warranty by defendant of the fitness of the water sold under the Uniform Sales Act, and on the ground that the service of the contaminated water in violation of the Ohio Pure Food Law constituted negligence by defendant. Held, plaintiff may recover on either theory. Yochem v. Gloria, Inc., 134 Ohio St. 427, 17 N. E. (2d) 731 (1938).

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Torts - Adjoining Landowners - Duty Of Adjacent Owner To Airport Operator - Dangerous Instrumentalities, Jerome Dick Dec 1939

Torts - Adjoining Landowners - Duty Of Adjacent Owner To Airport Operator - Dangerous Instrumentalities, Jerome Dick

Michigan Law Review

Plaintiff operated an airport which was adjacent to defendant public utility's uninsulated electric power transmission line. Since the airplane could not enter or leave the airport without flying low over defendant's adjacent right-of-way, the wire constituted an obstruction to their means of ingress and egress; in addition there was the danger of electrocution from contact with the wires. Plaintiff contends that this constitutes an interference with his business and seeks damages. Held, for defendant; under the statute plaintiff is a trespasser because he interferes with the reasonable use of defendant's property and a landowner is under no obligation to …

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Torts - Liability Without Fault - Rylands V. Fletcher - Necessity For Control Of Premises, Charles F. Dugan Dec 1939

Torts - Liability Without Fault - Rylands V. Fletcher - Necessity For Control Of Premises, Charles F. Dugan

Michigan Law Review

Defendant, under a contract with the federal government to dredge the Chesapeake and Delaware Canal, deposited the effluent material dredged from the canal upon a disposal area owned by the government. The work was carried on under government supervision, and neither the government inspectors nor defendant's employees knew, nor apparently could they have known, of any defect in the retaining wall which had previously been built by the government to hold back the material. Defendant had had nothing to do with prior dredging operations, by which the level of fixed earth behind the retaining wall had been raised considerably. After …

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Usury - Nuisances - Injunctions - Repeated Violations Of The Usury Laws Enjoinable As Public Nuisance, Michigan Law Review Dec 1939

Usury - Nuisances - Injunctions - Repeated Violations Of The Usury Laws Enjoinable As Public Nuisance, Michigan Law Review

Michigan Law Review

The defendant conducted a small loan office which advertised extensively in the community. The loans ranged from $5 to $50 in amount, and were originally made for terms ranging from one to six months. The borrowers were predominantly wage earners and they were required to give promissory notes far in excess of the sums received. The interest rates of 590 loans made by the defendant averaged well over three hundred per cent per annum, making the business almost exclusively usurious. The Minnesota statute set the maximum interest rate at six per cent with a provision allowing a maximum of eight …

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Monthly Periodical Index, Michigan Law Review Dec 1939

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

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

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Book Notes, Michigan Law Review Dec 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.

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Corporations - Modification Provisions Of Corporate Mortgages And Trust Indentures, Charles H. Haines Jr. Nov 1939

Corporations - Modification Provisions Of Corporate Mortgages And Trust Indentures, Charles H. Haines Jr.

Michigan Law Review

As early as the late 1800's it was not uncommon to find included in corporate mortgages and trust indentures provisions looking to the modification of the rights of the bondholders by action of a given majority of such holders. Ordinarily the power conferred could not be exercised by the holders of less than seventy-five per cent in value of the outstanding bonds; the modification authorized might be the alteration of security rights, the deferment of payments of interest or principal, the reduction of interest, or even the reduction of the debt. Inasmuch as the same equitable doctrines limit their use, …

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Taxation - Jurisdiction To Tax - Multiple Taxation Of Intangibles, Richard Brawerman Nov 1939

Taxation - Jurisdiction To Tax - Multiple Taxation Of Intangibles, Richard Brawerman

Michigan Law Review

In two recent decisions of the United States Supreme Court, Curry v. McCanless, and Graves v. Elliott, a majority of the justices refused to adhere to the doctrine that the Fourteenth Amendment prohibits taxation of intangibles by more than one state, and subscribed instead to the view that control and benefit are together the only test of jurisdiction of the states to tax. In Curry v. McCanless, the decedent, a resident of Tennessee, had created a trust of intangibles, reserving control over the income during her life and power to revoke the trust by will. The trust …

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Bills And Notes - Liability Of Drawer Of Bank Draft - Statute Of Limitations, John P. Cofrin Nov 1939

Bills And Notes - Liability Of Drawer Of Bank Draft - Statute Of Limitations, John P. Cofrin

Michigan Law Review

On April 1, 1918, defendant bank's predecessor issued a draft. The draft was negotiated by the payee to the plaintiff on August 10, 1937; presentment, refusal of payment, protest, notice of protest and dishonor all took place on that day. Defendant suffered no loss by reason of the delayed presentment. In a suit to enforce its liability as drawer, the defendant demurred on the ground that the complaint showed the action was barred by the statute of limitations. Held, the cause of action does not accrue in the sense that word is used in the statute until presentment, dishonor, …

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Libel And Slander - Defamation Of Attorney - Words Not Actionable Per Se, Roy L. Steinheimer Jr. Nov 1939

Libel And Slander - Defamation Of Attorney - Words Not Actionable Per Se, Roy L. Steinheimer Jr.

Michigan Law Review

The defendant, during the course of a public address, said of the plaintiff, an attorney: "They are throwing the bum out. The politicians . . . pick up a bum in a gin mill and send him over here to break up the audiences . . . . " Plaintiff alleges that, by innuendo, these words charge him with being a habitual drunkard, which constitutes slander per se because the words prejudiced him in his profession. Held, that the words were not actionable per se. Weidberg v. La Guardia, 170 Misc. 374, 10 N. Y. S. (2d) 445 …

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Practice And Procedure - General Verdict On Several Counts - Is New Trial Necessary When One Of Two Counts Is Unsupported By Evidence?, Edmund R. Blaske Nov 1939

Practice And Procedure - General Verdict On Several Counts - Is New Trial Necessary When One Of Two Counts Is Unsupported By Evidence?, Edmund R. Blaske

Michigan Law Review

Plaintiff sued defendant to recover damages arising from personal injuries claimed to have been suffered by him while in the employ of defendant, who was not under the workmen's compensation statute. In the first count of his declaration plaintiff claimed that defendant did not furnish him a safe place in which to work, and in the second count that defendant set him at work on dangerous materials. The jury returned a verdict of "guilty on both counts" and assessed "total damages" at $998.71. The trial court, on a motion for judgment notwithstanding the verdict, ruled that as a matter of …

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Torts - Liability Of Supplier Of Chattels To Third Persons, John J. Adams Nov 1939

Torts - Liability Of Supplier Of Chattels To Third Persons, John J. Adams

Michigan Law Review

Defendant leased trucks to plaintiff's employer for road construction purposes, contracting to keep them "in good working order" during the term of the lease. Plaintiff, while working alongside the road, was injured by one of the trucks driven by a fellow employee. Defective horn and brakes were responsible for the injury. Held, defendant is liable to plaintiff for breach of duty on any of three theories: (1) that defendant retained control of the trucks through his covenant to repair, the retention of control creating a duty of reasonable care to the lessee and his employees in making repairs; (2) …

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Trade Restraints- Equitable Servitude On Chattels - Radio Broadcast Of Electrical Transcriptions, Roy L. Steinheimer Nov 1939

Trade Restraints- Equitable Servitude On Chattels - Radio Broadcast Of Electrical Transcriptions, Roy L. Steinheimer

Michigan Law Review

A popular orchestra leader made certain electrical transcriptions (not records) of unique interpretations of different musical numbers which were distributed, for a consideration, for radio broadcast on the Ford Motor Program. A notice appears on the transcription that it is to be used only by a distributee station and then only on the Ford Program. Defendant, who is not a distributee, broadcast one of these transcriptions without the plaintiff's consent. Plaintiff sued to enjoin rendition of the transcriptions. Held, that the injunction should be granted because there was a proprietary interest in the plaintiff's rendition of these musical numbers, …

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Monthly Periodical Index, Michigan Law Review Nov 1939

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

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

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Dean Bates And The Michigan Law School, Edwin C. Goddard Nov 1939

Dean Bates And The Michigan Law School, Edwin C. Goddard

Michigan Law Review

From its opening in October, 1859, the Law School of the University of Michigan has been fortunate in the continuity of the service of the members of its faculty. The original faculty consisted of that remarkable trio, James V. Campbell, Charles I. Walker and Thomas M. Cooley. Instruction was given by lecture, and almost continuously for twenty-five years those three continued to expound the principles of the law to the students who flocked to the school.

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Evidence - Use Of Transcript Of Grand Jury Proceedings To Refresh Memory Of Witness - Right Of Opponent To Inspect Transcript, Michigan Law Review Nov 1939

Evidence - Use Of Transcript Of Grand Jury Proceedings To Refresh Memory Of Witness - Right Of Opponent To Inspect Transcript, Michigan Law Review

Michigan Law Review

In a criminal prosecution under the anti-trust laws, counsel for the United States, in the cross-examination of witnesses for the defense, based certain questions upon a transcript of the testimony of these same witnesses before the grand jury. The transcripts were used for the sole purpose of refreshing the memories of the hostile witnesses. The transcripts were not placed in the hands of the witnesses, but the witnesses were asked, "Did you testify thus-and-so before the grand jury?" The district court refused the demand of the defense counsel that they be allowed to inspect the transcript thus used for the …

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Front Matter, Michigan Law Review Nov 1939

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 38, Issue 1 of Michigan law Review

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Henry Moore Bates, Harlan F. Stone Nov 1939

Henry Moore Bates, Harlan F. Stone

Michigan Law Review

The retirement of Dean Bates during the present year has brought to a close his active service of thirty-six years as a law teacher, and twenty-nine as Dean of the University of Michigan Law School.

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A Generation Of Law Teaching, Roscoe Pound Nov 1939

A Generation Of Law Teaching, Roscoe Pound

Michigan Law Review

Thirty-six years ago (September, 1903) as Dean Bates was taking up law teaching as Tappan Professor of Law at Michigan, I was delivering an inaugural lecture as Dean of the Law School of the University of Nebraska. In this generation of law teaching we have seen the academic law school rise to a commanding position in professional education, the law teacher gain a position among the leaders of the profession, the growth of co-operation between bar associations and the association of law teachers, the development of co-operation between bar examiners and the law schools, and general adoption by the profession …

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Retroactive Application Of Law-A Problem In Constitutional Law, Edward S. Stimson Nov 1939

Retroactive Application Of Law-A Problem In Constitutional Law, Edward S. Stimson

Michigan Law Review

May an overruling decision be applied to ascertain the legal effect of prior conduct? In cases arising under the diversity of citizenship jurisdiction, the United States Supreme Court has held that the federal courts should apply earlier state court decisions, and not a decision overruling them, whenever the retroactive application of the new rule would adversely affect a party who had changed his position in reliance on the decisions overruled. In the absence of such reliance and change of position it has sustained the retroactive application of a new rule. If the basis of the first principle is elemental fairness …

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Constitutional Law - Fourteenth Amendment - Privileges And Immunities Clause - Civil Liberties - The Hague Case, John N. Seaman Nov 1939

Constitutional Law - Fourteenth Amendment - Privileges And Immunities Clause - Civil Liberties - The Hague Case, John N. Seaman

Michigan Law Review

The decisions of the United States Supreme Court in recent years, interpreting the first section of the Fourteenth Amendment, have manifested two striking changes in trend. The first is towards less judicial restraint on governmental regulation of business; that is, towards tolerance of diminished "business liberty." The other is towards greater judicial restraint on governmental interference with individual liberty, commonly called civil liberty. A recent case/ which upheld freedom of speech and assembly and invalidated a city ordinance requiring the obtaining of a permit as prerequisite to a public meeting, not only illustrates the latter of these trends, but is …

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Public Utilities - Rate Regulation - Validity Of Temporary Rate Order, Thomas K. Fisher Nov 1939

Public Utilities - Rate Regulation - Validity Of Temporary Rate Order, Thomas K. Fisher

Michigan Law Review

Of interest to students of public utility rate regulation will be the case of Driscoll v. Edison Light & Power Co. in which the United States Supreme Court side-stepped a reconsideration of the fair value rule as announced in Smyth v. Ames, and a determination of the constitutionality of temporary rates based on the prudent investment theory.

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Bankruptcy - Corporate Reorganization - Section 77b - Chapter X Of The Chandler Act - Boyd Case Rule, Edmund O'Hare Nov 1939

Bankruptcy - Corporate Reorganization - Section 77b - Chapter X Of The Chandler Act - Boyd Case Rule, Edmund O'Hare

Michigan Law Review

A subsidiary of the defendant corporation filed a reorganization petition under Section 77 B of the Bankruptcy Act and defendant presented a claim of over nine million dollars as a creditor, the claim being grounded upon moneys paid by defendant to the subsidiary for its benefit, management and supervision fees, rental and interest charges, and declared but unpaid dividends. Defendant owned about ninety-eight per cent of the common stock of the subsidiary. As the result of objections by the trustee and preferred stockholders of the subsidiary, defendant's claim was compromised at five million dollars. The reorganization plan provided in part …

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Banks And Banking - Stockholder's Statutory Liability For Additional Assessment - Statute Of Limitations, Charles F. Dugan Nov 1939

Banks And Banking - Stockholder's Statutory Liability For Additional Assessment - Statute Of Limitations, Charles F. Dugan

Michigan Law Review

The plaintiff, receiver of the Bank of Saginaw, a Michigan state bank, sought to collect an assessment of one hundred per cent on ninety-six shares of stock of the bank, held by the respondent as trustee for Gardner Grout Rose. On August 31, 1933, the Commissioner of the Michigan State Banking Department, with the approval of the Governor, ordered the then conservator to levy an assessment on stockholders of the bank. On October 31, 1933, the conservator was replaced by a receiver. On September 5, 1934, the Michigan State Banking Commissioner, also with the approval of the Governor, made an …

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Constitutional Law - Carriers - Supersedure Of State Regulations By Federal Regulations - Regulation Of Hours Of Service Of Motor Vehicular Drivers - Effect Of Federal Motor Carrier Act Of 1935, Fred C. Newman Nov 1939

Constitutional Law - Carriers - Supersedure Of State Regulations By Federal Regulations - Regulation Of Hours Of Service Of Motor Vehicular Drivers - Effect Of Federal Motor Carrier Act Of 1935, Fred C. Newman

Michigan Law Review

Defendant, whose business was chiefly interstate, violated a statute of New Hampshire which regulated the hours of service of drivers of certain motor vehicles. The violation occurred after the passage of the Federal Motor Carrier Act of 1935, which, among other things, conferred authority upon the Interstate Commerce Commission "to establish reasonable requirements with respect to . . . maximum hours of service of employees" of common and contract carriers by motor vehicle in interstate commerce. At the time of the breach of the state statute, the Interstate Commerce Commission had not prescribed regulations as to hours of service. Defendant …

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