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Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 35, Issue 5 of Michigan Law Review

Curbing The Supreme Court-State Experiences And Federal Proposals, Katherine B. Fite, Louis Baruch Rubinstein

Michigan Law Review

The avalanche of proposals introduced in the last session of Congress seeking to curb the power of the Supreme Court to declare legislative acts unconstitutional and President Roosevelt's recent message to Congress on the judiciary have focused attention on the problem of the function of that Court in our governmental system.

This article does not take sides in the controversy. Its purpose is merely to review the developments in the four states, Colorado, Ohio, North Dakota and Nebraska, which by amendments to their constitutions have sought to place curbs on their supreme courts, and also to classify the proposals which …

Admiralty - Right Of Seamen To Indemnity - Duty Of Shipowner To Warn And Instruct Inexperienced Seamen, James H. Roberton

Michigan Law Review

In the recent case of The State of Maryland, the United States Circuit Court of Appeals of the Fourth Circuit held that a seaman could recover indemnity against a vessel in an in rem proceeding in admiralty, for burns received when oil-burning equipment of the vessel exploded. The explosion occurred while the libellant was attempting to light the oil burner in the pit furnace beneath the boilers without having first opened the lower draft. It was a part of the libellant's duties to light the oil burner. He was inexperienced, and no one had instructed him as to the …

Corporation Statutes As The Answer To Parent-Subsidiary Liability, Elvin R. Latty

Michigan Law Review

The purpose of these few pages is to call attention to the view concerning the liability of a parent corporation for obligations of its subsidiaries set forth in a comment in a recent number of the Review.

Equity - Constructive Trusts - Thieves And Embezzlers As Constructive Trustees, Jacob L. Keidan

Michigan Law Review

During the last hundred years the constructive trust has been extended from its original sphere of operation, that of the express trust, into a variety of situations where the wrong consists of tort or crime. This important extension of remedial principles has been facilitated in some cases by describing as confidential or fiduciary certain legal relations which would not ordinarily be so considered. In other cases any requirement of a confidential or trust relationship has been wholly discarded. The process of extension has gone so far that Justice Cardozo, in Beatty v. Guggenheim Exploration Co., felt justified in declaring …

The "Last Clear Chance" Doctrine In The Federal Courts, Nedra Evans

Michigan Law Review

In analyzing the doctrine of "last clear chance," a qualification of the co.μtributory negligence rule, several questions must be considered. Perhaps the most important one is, (1) Does the court apply the doctrine of discovered peril or is it enough that defendant should have known, by the exercise of reasonable care, plaintiff's peril? (2) Is the doctrine of "last clear chance" confined to cases where the negligence of plaintiff has spent itself? (3) If the doctrine of undiscovered peril is followed for a licensee, will the court still apply the rule of discovered peril if plaintiff is a trespasser? (4) …

Administrative Law - Johnson Act - Jurisdiction Of Federal Courts Where State Review Procedure Prohibits Issue Of Supersedeas, William J. Isaacson

Michigan Law Review

Complainant power company attacked as confiscatory the decrease in rates ordered by the Public Service Commission of Montana. The company demanded an interloctory injunction pending a final decree. It appeared that there was on the statute book of Montana a statute prohibiting supersedeas pending judicial review in such cases. The district court granted the commission's motion to dismiss on the ground that a plain, speedy, and efficient remedy was available to the plaintiff in the state courts, and hence the requirements of the Johnson Act of May 14, 1934, were met. Therefore, so it was contended, federal jurisdiction was precluded. …

Attorney And Client - Drafting Legal Instruments As Practice Of Law, Milton Rabinowitz

Michigan Law Review

In citation of defendant for contempt for unlicensed practice of law, held, that the preparing of a note and chattel mortgage and advising as to the legal effect thereof constitutes practice of law. " . . . [The practice of law] includes . . . drawing of wills, deeds, mortgages and other instruments of like character, where a legal knowledge is required, and where counsel and advice are given with respect to the validity and legal effect of such instruments . . . . " State v. Barlow, (Neb. 1936) 268 N. W. 95.

Constitutional Law - Anti-Deficiency Judgment Statutes In Foreclosure Actions - Impairment Of Contract, Elbridge D. Phelps

Michigan Law Review

Plaintiff instituted a proceeding on a judgment bond which was secured by a real estate mortgage, both of which had been executed by defendants, caused judgment to be entered on the bond, and procured the issuance of a writ of execution under which the mortgaged premises were sold. Thereafter, under the provisions of the state Mortgage Deficiency Judgment Act, defendants procured a satisfaction of the judgment in toto. After entry of such satisfaction, plaintiff filed a petition upon which the court granted a rule on defendants to show cause why the satisfaction should not be stricken. From an order dismissing …

Limitations Of Actions - Physicians And Surgeons - Malpractice - Accrual Of Cause Of Action, Michigan Law Review

Michigan Law Review

Defendant, a physician, treated plaintiff's decedent for cancer. Defendant failed to remove certain radium beads from decedent's uterus, and their presence in her body caused her death approximately five years later. The fact that defendant failed to remove the radium beads was not learned by plaintiff until a few months before decedent's death. Plaintiff brought suit, under the Kansas Wrongful Death Statute, within two years of the discovery of the alleged malpractice. Held, since plaintiff's cause of action accrued when the injurious acts took place, and since the statutory two-year limitation upon the bringing of tort actions was applicable, …

Municipal Corporations - Constitutional Home Rule, Charles M. Kneier

Michigan Law Review

The home rule provision of the New York. constitution provides that as to the "property, affairs or government of cities," the legislature may pass special or local laws only on message from the governor declaring that emergency exists, and the concurrent action of two-thirds of the members of each house of the legislature is necessary in such cases. In 1936 the legislature passed an act providing for the establishment of the three platoon system for fire departments in all cities of over 1,000,000 population. The act provided for a referendum vote on the question in such cities. A mandamus action …

Quasi-Contracts -- Contracts Unenforceable Under Statute Of Frauds -- Test Of Benefits, Charles C. Spangenberg

Michigan Law Review

Defendant orally contracted to buy fifty special type motion picture cameras which plaintiff was to build. Plaintiff had completed ten cameras in whole and forty in part when defendant repudiated, setting up the defense that the contract was void under the California statute of frauds. In an action on the common counts for labor done and materials furnished, the court held, that plaintiff could not recover because defendant had accepted or retained no benefit from which a promise to pay could be implied. Mitchell Camera Corp. v. Fox Film Corp., (Cal. 1936) 59 P. (2d) 127.

Specific Performance - Oral Option To Buy Stock - Effect Of Provision To Fix Price By Arbitration, Michigan Law Review

Michigan Law Review

Defendant, who owned all the common stock of a bank, gave an oral option to sell it at a fixed price to plaintiff. Plaintiff was to investigate the bank's books, assets, and liabilities in order to determine the true value of the stock. If the true value did not equal the agreed price, the parties were to meet and set the amount of the diminution. In the event of disagreement, a third party was to be called in. Plaintiff expended considerable sums for investigation before defendant renounced the option and prevented further investigation. In an appeal from an interlocutory order …

Negligence - Failure Of Restaurant Proprietor To Protect Patron Fom Injury, Michigan Law Review

Michigan Law Review

As a result of a fight between two men in defendant's restaurant, plaintiff suffered injuries. There is evidence that defendant knew of the violent temper of one of the combatants and that fights were liable to occur at any time in such a place where beer and alcoholic liquors were sold. Held, that there is sufficient evidence of negligence to take the case to the jury. Peck v. Gerber, (Ore. 1936) 59 P. (2d) 675.

Federal Courts - Removal Of Causes - Action By State Tax Collector Against National Bank To Recover Taxes - Federal Question, Malcolm L. Denise

Michigan Law Review

The state of Mississippi passed a statute imposing a tax upon national banks, under authority of a federal statute permitting such legislation. The state assessed the tax upon defendant's predecessor, and defendant, in taking over its predecessor's assets, undertook to pay all of its obligations, including taxes due. The state tax collector started suit on the contract in the state court, but upon defendant's application the cause was removed to the federal district court. On appeal it was held the case did not arise under the laws of the United States within the meaning of the removal statute because it …

Public Utilities - Original Cost Of Plant As Item In Company Accounts, Emma Rae Mann

Michigan Law Review

Forty-four telephone companies, thirty-seven of them members of the Bell system, and seven of them members of another group, sued to set aside an order of the Federal Communications Commission prescribing a uniform system of accounts for telephone companies. The companies contended that the system of accounts ordered prevented them from realizing a fair return on their total investment. The Court held that the order of the commission was valid and dismissed the bill. American Tel. & Tel. Co. v. United States, 299 U.S. 232, 57 S. Ct. 170 (1936).

Taxation - Special Assessments For Street Lighting, Herbert J. Bloom

Michigan Law Review

The city of Los Angeles, under the authority of the "Public Works and Utility Act" of California, passed two ordinances levying special assessments for street lighting purposes upon abutting property specially benefited according to the front foot rule. The validity of the ordinance ordering the necessary lighting posts and appliances, which were installed before the present proceeding was brought, was conceded. The other ordinance provided for the furnishing of electric current to light the public streets for a period of fourteen months. This was contested by the plaintiff, who owned three lots subject to the assessment, on the ground that …

The Patman Act In Practice, Blackwell Smith

Michigan Law Review

A recent act of Congress directed against price discrimination and related phases of buying and selling has already become famous as the Robinson-Patman Act, so named for its two principal sponsors in Congress. This act has been much written about, and yet those whose law practice confronts them with daily problems in its application to the actuality of the business world find daily new aspects. The act has something to say with reference to every business transaction (in or related sufficiently to interstate commerce) which involves a price or a service or a facility in connection with the sale of …

The Problem Of Transfers Under Bulk Sales Laws: A Study Of Absolute Transfers And Liquidating Trusts, Thomas Clifford Billig, William L. Branch Jr.

Michigan Law Review

Although the first bulk sales law in the United States was enacted more than forty years ago, the host of decisions still emanating from the courts bears ample witness to the fact that this field of legal learning remains remarkably fertile. For the first decade following the original Louisiana Bulk Sales Act of 1894 the several state legislatures were busily engaged in passing statutes of similar import. During the next three decades the courts became as fully occupied as had been the legislatures in determining precisely what the legislatures meant by the language employed in the several acts. This process …

Negligence - The Determination Of Existence Of Gross Negligence Making Automobile Host Liable To Non-Paying Guest, Jack L. White

Michigan Law Review

Under common-law principles a majority of courts require the motorist, who voluntarily undertakes to carry another gratuitously, to exercise the ordinary care of a reasonably prudent man in the management and operation of his automobile. The minority rule, by analogy to the gratuitous bailment cases, requires a person who invites another to ride gratis to use only slight diligence to avoid injury to that person and holds him liable for gross negligence. The minority view undoubtedly appeals to those who feel that it is unsportsmanlike to sue one's benefactor, and yet it is doubtful whether such a purely emotional foundation …

Insurance - Execution For A Criminal Offense, Herman J. Bloom

Michigan Law Review

The insured was convicted and legally executed for the crime of rape. The beneficiary sued on a life insurance policy which contained no express exemption from liability in the event of death resulting from the legal execution of the insured. The court held that the beneficiary was entitled to recover under the public policy as declared in the constitutional provision against corruption of blood and forfeiture of estate. Progressive Life Insurance Co. v. Dean, (Ark. 1936) 97 S. W. (2d) 62.

Trade Marks And Trade Names - Mark Used On Patented Article - Effect Of Expiration Of Patent, William J. Isaacson

Michigan Law Review

P company had distributed patented razor-blades marked Enders, and, upon the expiration of its patent, registered the word as a trade mark. It also used the term Keen-Kutter, as part of its mark, but the use of this term on other goods antedated the patent by several years. P now seeks to enjoin the D company from using either term as part of its trademark. Held, (1) the word Enders having become descriptively designative of this type of razor and blade, D was entitled to use it upon expiration of P's patent; (2) as to Keen-Kutter …

Wills - Probate - Deletion Of Libelous Matter, Michigan Law Review

Michigan Law Review

In propounding the will of the testator for probate, the executor petitioned the surrogate court to exclude from probate certain non-dispositive matter therein, which if published during the testator's lifetime, would have supported an action for libel. Held, that the court had power to exclude the objectionable matter from probate, since it was not properly a part of the will. In re Draske's Will, 290 N. Y. S. 581 (Surr. Ct. 1936).

Monthly Periodical Index, Michigan Law Review

Michigan Law Review

This department lists the articles and comments which appear in twenty-four 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.

The Notice Due To A Guarantor, Morton C. Campbell

Michigan Law Review

A guaranty is usually an offer contemplating a unilateral contract in that it requires for acceptance an act or series of acts, or abstention from action, on the part of the offeree. The act or acts ordinarily consist in the furnishing of money, goods, services, or the like, by the offeree to the principal in reliance on the guaranty; or in the assumption of suretyship risk by the offeree on behalf of the principal. Abstention from action commonly consists in the offeree's refraining from pressing the principal by suit or otherwise for an overdue debt.

Corporations - Power Of Majority Stockholders To Reorganize By Transfer Of Assets To New Corporation In Exchange For Stock, Kenneth K. Luce

Michigan Law Review

A private corporation is solvent and prosperous but is nearing the time when its charter will expire. The directors call a stockholders' meeting at which the majority of the stockholders vote: first, to form a new corporation and, second, to transfer all the assets of the old corporation to the new corporation in consideration for the entire capital stock of the new corporation and the assumption by the new corporation of all liabilities of the old corporation. The plan further provides that the old corporation is then to be dissolved, and the stock of the new corporation is to be …

Constitutional Law - Trial By Jury - Waiver Of Absence Of Part Of Jury And Consent To Continue With Remainder, Malcolm L. Denise

Michigan Law Review

The relator in this quo warranto proceeding attacked his previous conviction in a criminal trial on the ground that the verdict was void because rendered by only eleven persons. During that trial, one of the original jurors had been unable to continue, and the relator and the prosecutor had both consented to proceed before the remaining jurors. It was held that the right to be tried by a jury of twelve given an accused by the constitution of the state is a privilege purely for his own protection, and that he could legally waive this, just like any other similar …

Master And Servant - Action By Employer Against Chauffeur, Michigan Law Review

Michigan Law Review

The owner of an automobile suffered personal injury and injury to his car when his chauffeur ran into another vehicle. Held, in overruling defendant's demurrer, that an employer has a cause of action against his chauffeur for negligence, there being no grounds. of policy against such an action and there being no joint enterprise and hence no negligence imputed to the employer. Darman v. Zilch, (R. I. 1936) 186 A. 21.

Negligence - Res Ipsa Loquitur - Application To Carriers, Michigan Law Review

Michigan Law Review

Plaintiff was injured while riding on defendant's bus when it was struck by defendant's street car, the collision being caused by the derailment of the street car. It was not made clear on trial what was responsible for the derailment. Held, the defendant controlled both vehicles, the event was of a type which would not ordinarily occur if reasonable care were used, the injury to plaintiff was not due to any voluntary act on her part, so the jury could properly infer that the defendant was negligent under the doctrine of res ipsa loquitur. Birdsall v. Duluth-Superior Transit …