Digital Commons Network^™

Carriers Distinction Between Common Carriers And Contract Carriers, Marcus L. Plant

Michigan Law Review

In the recent case of Ace-High Dresses, Inc. v. J.C. Trucking Co., the defendant was a corporation organized for the purpose of doing a general trucking business. At the time of the suit it was operating under separate contracts with five dressmaking establishments, one of which was the plaintiff. Under these contracts the defendant trucked dress goods every day except Sunday. The goods were taken on in New York, carried to New Haven, Hartford or Bridgeport, left there until processed, and then taken back to New York. The defendant's drivers had keys to the factories of the processors, entered …

Abatement And Revival - Exception From Survival Statute Of Actions For Slander As Preventing Survival Of Action For Slander Of Title, Michigan Law Review

Michigan Law Review

Pending plaintiff's action for slander of title, defendant died. A statute provided that no action should abate by the death of either party thereto except actions for libel, slander, malicious prosecution, nuisance, or actions against a justice of the peace for misconduct in office. Held, the action abated, because, although slander of title was not expressly excepted from the operation of the statute, still the action of slander as specifically excepted by the statute embraces the action of slander of title. Billingsley v. Townsend, 132 Ohio St. 603, 9 N. E. (2d) 690 (1937).

Freedom Of The Press And Of The Mails, Eberhard P. Deutsch

Michigan Law Review

It should be unnecessary to amend the Federal Constitution to accommodate the facilities of government to the needs of society, as those needs develop with the social and scientific advance of civilization. But the trend of legislative effort to reach beyond constitutional limits to satisfy fleeting economic or political expediencies, without regard for the vital distinction between sound and substance, and of courts to seek justification for such excursions, under the benefit of constitutional doubt due "solemn expressions of legislative will," may lead to highly dangerous situations. As this trend is permitted to reach extremes, the erasure of the well-defined …

Labor Law - Rights And Duties Under The National Labor Relations Act- Effect Of Norris-Laguardia Act, Lennart V. Larson

Michigan Law Review

Defendants, members of a C.I.O. organization, petitioned for an election in plaintiff corporation's factory in order to determine the representatives of the employees for the purposes of collective bargaining. An employees' association, a union the members of which were restricted to employees of the corporation, received a majority of votes and was certified by the National Labor Relations Board as bargaining representative. Nevertheless, the C.I.O. union called a strike, demanding sole bargaining privileges and a closed shop. Picketing, violence and intimidation are alleged, as a result of which plaintiff's factory has had to shut down. Held, plaintiff is entitled …

Municipal Corporations - Police Power - Extraterritorial Effect, Gerald M. Stevens

Michigan Law Review

A city ordinance prohibited the sale of ice cream within the city unless the seller had first obtained a certificate of registration from the city. The certificate could be obtained by registering the applicant's state ice cream factory license with the city commissioners of health, allowing an inspection of his factory, and paying an annual inspection fee. Defendant sold ice cream in the city without having done so. His factories were located two counties distant from the city; they had been duly licensed by the state. On prosecution by the city, held, the ordinance was void on the ground …

Municipal Corporations - Quasi-Contractual Liability - Distinction Between Quasi-Contract And Ratification, Edward J. Wendrow

Michigan Law Review

Plaintiff sued to recover for services rendered as foreman on a city "Works Project," the services having been rendered at the request of the mayor and with full knowledge on the part of the city council. Because of the foregoing fact the plaintiff claimed the contract had been ratified even though no formal corporate action had been taken authorizing the contract. Defendant's demurrer was overruled in the circuit court. On appeal, held, although plaintiff could not recover in an action based on the alleged contract because no formal contract was ever entered into, and because plaintiff's compensation had not …

Contracts - Illegality - Enforcement Of Contract Declared "Invalid" By Statute, Amos J. Coffman

Michigan Law Review

Plaintiff was injured while in the employ of defendant. Thereupon the defendant agreed to give the plaintiff employment for life if he would not prosecute the claim before the State Industrial Commission. After thirteen years plaintiff was summarily discharged. The time having elapsed for filing a claim with the Industrial Commission, he brought this action for breach of contract. Statutes of Oklahoma provide that no agreement to waive the right to compensation shall be valid and that claims shall not be released. The lower court awarded plaintiff $3,000 damages. Defendant appealed. Held, the rule that invalid contracts will not …

Wills - Right Of Assignee Of An Expectancy To Contest The Probate Of A Will, Ralph Winkler

Michigan Law Review

The plaintiff filed a bill in equity to set aside the probate of a will which disinherited the testator's heir apparent. The plaintiff alleged that the will was void because of undue influence and the testator's incompetency and that his right to contest was based on an assignment by the heir apparent of his interest in his living ancestor's estate as security for a loan. Held, the plaintiff received no interest in the testator's estate by the assignment and therefore is not a proper contestant within the statute. Burk v. Morain, (Iowa, 1937) 272 N. W. 441.

Municipal Corporations - Police Power - Validity Of Ordinance Fixing Closing Hours, Michigan Law Review

Michigan Law Review

A municipal ordinance required that all local business concerns selling or distributing food stay open for business only during the hours of duty of the municipal meat and food inspector. Hotels, restaurants, boarding houses, confectioneries, drug stores, soda fountains, and milk and cream dispensers were expressly excepted from these requirements. Plaintiff, a general grocery store, sought an injunction against the enforcement of these provisions, alleging that they were unreasonable and that the exceptions were discriminatory. Held, that under its police power to protect the public health, the municipality was authorized to pass such an ordinance as an aid to …

Negligence - Proximate Cause -Train Obstructing Highway - Failure To Warn Of Obstruction - Ice On Highway, Michigan Law Review

Michigan Law Review

Deceased, for whose death an administratrix sued defendant railroad, was a guest in a car which collided with a standing freight car at a highway crossing. The train was unlighted; the crossing unguarded; the visibility poor (as the accident occurred at about nine-thirty in the evening, during a snow storm). The hostdriver did not see the train until he was rather close to it; but he testified that, had it not been for ice concealed under the snow on the road, he could have stopped, after he saw the car on the crossing in time to have avoided a collision. …

Public Utilities - Rate Regulation - Reproduction Cost And Prudent Investment As Factors In Determining "Fair Value", Erwin B. Ellmann

Michigan Law Review

At a hearing conducted by the California Railroad Commission, the existing gas rates charged by a utility were deemed unreasonable, and a new schedule of rates was prescribed. The commission, in determining the rate base, used historical cost exclusively, and refused to attach any weight to the present cost of reproducing the properties. A three-judge federal court enjoined the enforcement of the rates without making a finding that as prescribed the rates were confiscatory. Held, by a majority of the Court, the trial court was without power to enjoin the enforcement of the rates, regardless of the method of …

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

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

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 36, Issue 4 of Michigan Law Review

Evidence - Judicial Notice Of Medical Facts - Judge's Right Of Private Investigation, Edward D. Ransom

Michigan Law Review

A recent case, Anderson v. Jersey Creamery Co., invokes a discussion of the problems of judicial knowledge particularly as it is pertinent to cases involving medical science. This was an action under the Survival Act for electrocution of defendant's employee, who, while working in a wet truck, came in contact with a charged conduit. To maintain the action it was necessary to show that the death was not instantaneous. The father of the deceased testified that he saw his son's face twitch and fingers move while resuscitation was being attempted with a pulmotor. The plaintiff produced no medical testimony …

Bills And Notes - Signing In Representative Capacity - Personal Liability, Erwin B. Ellmann

Michigan Law Review

Defendant, while acting as trustee of the Catholic Diocese of Cleveland, an unincorporated religious association, executed to the plaintiff negotiable promissory notes in the following forms: (1) "Ninety days after date, for value received for The Calvary Cemetery . . . we promise to pay . . . [Signed] Joseph Schrembs, Bishop of Cleveland. Calvary Cemetery Association, By: J. T. B., Treas." (2) "Six months after date, for value received for Sacred Heart of Mary Church . . . we promise to pay . . . [Signed] Councilmen: A. S.; L. F.; V. J. H.; H. S. Z.; Joseph Schrembs, …

Federal Courts - Procedure For Determining Jurisdiction Ab Facto - Burden Of Pleading And Proof, Richard B. Maxwell

Michigan Law Review

Since the beginning of our government it has been recognized that the federal courts are courts of limited jurisdiction. At an early date it was decided that because of this the plaintiff must state in his complaint the facts upon which the jurisdiction depended. The reason given in support of this rule, which is still the unquestioned law, is that there is no presumption of jurisdiction in courts which have only limited jurisdiction, but it is presumed not to exist unless its existence be shown upon the record. When the plaintiff sustained his burden of pleading the jurisdictional facts, his …

Corporations-Amendment Of Charter - Fundamental Change Of Purpose, Michigan Law Review

Michigan Law Review

Plaintiff, a cooperative association incorporated under the laws of Minnesota as a wholesaler of oil, sued defendant, a member of the cooperative, for goods sold and delivered. Pursuant to the statute which provided that such cooperatives may amend their articles by a vote of the majority of the membership "in respect to any other matter which the original articles of incorporation of the same kind might lawfully have contained," plaintiff's articles of incorporation had been amended, adding to the original purposes "any mercantile, jobbing, wholesale and retail, mining, manufacturing and mechanical business on the cooperative plan." These were all objects …

Trusts - Participation In Breach Of Trust By Depositary Of Trust Funds - Tracing, Michigan Law Review

Michigan Law Review

A township treasurer, elected custodian of school funds by the trustees of schools, paid a personal debt to the bank in which those funds were deposited with a check drawn by him as treasurer on the trust account. Subsequently, in like manner, he transferred some $2,000 from the trust account to his personal account in the same bank to meet an overdraft of $ 1,000, using the balance then left in his personal account for his personal advantage without benefit to the bank. Held, that the surety who had paid a judgment in favor of the school trustees for …

Vendor And Purchaser - Equitable Conversion - Application To Obligation To Extinguish Forest Fires, Michigan Law Review

Michigan Law Review

A Montana statute placed the burden of extinguishing forest fires on the person on whose "property" the fire occurred, and, on failure of such person to extinguish it, made him liable to reimburse any authorized unit that should do so. Fire broke out on property owned by D, and a Government unit extinguished it. Previous to such fire, D had contracted to sell the land to X under a contract giving X the right of possession. Held, by the doctrine of equitable conversion, X was the beneficial owner, and the land was not D's "property" so as …

Witnesses - Contradiction Of Party's Own Testimony By Other Witnesses Called By Him, Michigan Law Review

Michigan Law Review

In an automobile guest action for injuries received when defendant drove his auto against the center pier of a viaduct on a city street, wherein the only defense was plaintiff's contributory negligence in remaining in the auto with knowledge that defendant was intoxicated, defendant testified that he was not under the influence of liquor. Held, defendant could not thereafter offer testimony of other witnesses to prove he was intoxicated at a time shortly after the accident, since his own testimony was in regard to facts peculiarly within his own knowledge and given apparently in good faith. Vondrashek v. Dignan …

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.

Depletion Of Oil And Gas Properties For Income Tax Purposes, John W. Beveridge

Michigan Law Review

The Revenue Act of 1936 provides that in computing net income from oil and gas properties there shall be allowed as a deduction from gross income a reasonable allowance for depletion, according to the peculiar conditions in each case. The allowance is made under regulations prescribed by the Commissioner of Internal Revenue.

The first problem is to fix the amount the taxpayer is entitled to recover before he is considered as earning income which is not in essence a mere return of his capital investment. The difficulty of clearly defining the difference between a return of capital and of income …

Wills - Probate - Contest - Appearance By Trustee And Executor Named In Earlier Will, Edward D. Ransom

Michigan Law Review

Petitioner, who was the widow of the testator, sought probate of a will dated December 1934 which gave her practically the entire estate. The bank filed opposition to the will. The bank was named both as executor and as trustee in an earlier alleged will. The earlier will contained certain legacies not included in the later one and a trust of the residue for various beneficiaries. The probate court denied appearance of the bank both as executor and as trustee. Held, the bank is not entitled to contest the will as executor but may as trustee. Reed v. Home …

Administrative Tribunals-Organization And Reorganization, E. Blythe Stason

Michigan Law Review

No doubt overhauling is needed. However, a consistent and rational theory for the integration of the independent agencies with the remainder of the governmental structure is a condition precedent to an intelligent overhauling. This article constitutes a groping for such a theory. First, I shall discuss some of the more significant attacks which have been made in recent years upon modern administrative organization. Then, the reasons for these attacks will be examined and appraised, for they reveal certain pathological conditions which need excision. Finally, and with all due deference to the other remedies that have been suggested, I shall venture …

Constitutional Law - Public Works Administration - Validity - Requisite Interest To Challenge Constitutionality, Gerald L. Stoetzer

Michigan Law Review

After three years of prolonged litigation which has deprived the nation of many intended immediate benefits, another New Deal measure commonly known as the Public Works Administration has withstood the legal attacks persistently made upon it. One of the earliest enactments of the Seventy-third Congress during the present administration, Title II of the National Industrial Recovery Act, passed with the view of directing the country from an economic abyss, recently received judicial sanction in the United States Supreme Court, although Title I of the same act was early attacked and decreed unconstitutional in Schechter Poultry Corp. v. United States. Title …

Corporations - Interpretation Of The "Public Offering" Exemption Of The Federal Securities Act And State Blue-Sky Laws, Gerald L. Stoetzer

Michigan Law Review

Section 5 of the Federal Securities Act of 1933, as amended, declares that it shall be unlawful to use any means of transportation or communication in interstate commerce or of the mails to dispose of securities or transmit a prospectus thereon unless a registration statement as required by the act is in effect and unless the prospectus meets the statutory requirements. However, certain securities and transactions are expressly exempted from application of the act. Among the exemptions set out in section 4 are those "transactions by an issuer not involving any public offering."

Taxation - Constitutionality Of Federal Admissions Tax As Applied To State Universities, Ralph W. Aigler

Michigan Law Review

In declaring invalid the federal tax so far as it applied to admissions to athletic contests conducted under the auspices of the Regents of the University System of Georgia, the United States District Court has added another very interesting case to the many involving immunity from taxation growing out of our dual system of government. The question arose early, and scores of cases have since been decided.

Witnesses - Privileged Professional Communications As Affected By The Presence Of Third Parties, Dan K. Cook

Michigan Law Review

Interesting problems arise in regard to privileged communications when made to the professional confidant in the presence of a third person. Such problems are concerned with the manner and degree in which the privilege is altered or destroyed by the presence of such third persons. It is the purpose of this comment to discuss the attorney-client and physician-patient privileges as affected by the presence of a third person, where the professional confidant and his client or patient are aware of such presence.

Corporations -Amendment Of Charter - Power Of Legislature To Authorize, Michigan Law Review

Michigan Law Review

Remington Rand, Inc., by amendments to its charter authorized by laws passed subsequent to its incorporation, reclassified its stock so as to extinguish $26.25 dividends cumulated on the first preferred stock. The complainant was owner of some of the first preferred stock. He filed a bill in equity to invalidate the reclassification, to compel restoration of the original capital structure, and to compel the payment of the cumulated dividend so extinguished. Held, complainant cannot succeed as to his demand for invalidation of reclassification and restoration of the capital structure because of laches. He cannot force the payment of dividends …

Municipal Corporations - Police Power - Billboard Regulations For Aesthetic Purposes, Bertram H. Lebeis

Michigan Law Review

Plaintiff applied to defendant superintendent of buildings for permits to erect billboards for general advertising purposes on plaintiff's, property in the city of Troy. Defendant refused to issue the permits on the authority of an ordinance which made it unlawful to erect any billboard and/ or signboard within the city limits, except upon real property owned or leased by the occupants thereof and for the sole purpose of advertising the sale of such property or of merchandise kept for sale upon such premises. Plaintiff petitioned for a writ of mandamus to compel defendant to issue the permits. Held, that …