Law Commons^™

Restitution - Waiver Of Tort And Suit In Assumpsit - Amount Of Recovery Where There Has Been A Sale, Charles B. Renfrew S.Ed.

Michigan Law Review

In a prior action one of the defendants obtained a judgment against the plaintiff. The present action for conversion was brought because of an allegedly irregular execution sale of plaintiff's business property under that judgment. The trial court granted defendants' motion to dismiss on the ground that the action was barred by the statute of limitations. On appeal, held, affirmed. The applicable statute of limitations was not tolled by fraudulent concealment and plaintiff, having elected his remedy in tort, was not entitled to a trial in an action of assumpsit on the theory of a contract implied by law. …

Torts - Libel And Slander - Calling A Person A Communist As Slader Per Se, Ross Kipka S.Ed.

Michigan Law Review

In an action for slander, plaintiff alleged that on three separate occasions defendant had orally called or referred to plaintiff as a communist. The court rendered judgment against the defendant, holding that calling a person a communist is slander per se. On appeal, held, affirmed. Since membership in the Communist Party is a felony under Pennsylvania statute, falsely referring to a person as being a communist is slander per se. Solosko v. Paxton, (Pa. 1956) 119 A. (2d) 230.

Negligence - Duty Of Care - Duration Of Status Of "Driver" For Puropses Of Guest Statute, George Kircos

Michigan Law Review

Plaintiffs were guests riding in defendant's automobile. Defendant stepped out of the vehicle leaving the motor running, the hand brake unset, and the automatic shift in neutral position. A departing passenger brushed against the gear lever and started the vehicle which struck a wall causing injuries to the plaintiffs. On appeal from judgment adverse to the plaintiffs, held, reversed. Defendant may be held liable for ordinary negligence. California's "guest" statute limiting guests to recovery for injuries sustained by the driver's willful misconduct does not apply in this case, since the defendant ceased to be a driver the moment he …

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Transfers Of Joint Property In Contemplation Of Death: A Call For Immediate Statutory Revision, L. Hart Wright

Michigan Law Review

For years the Tax Court sided with the government and the Court of Appeals for the Third Circuit in asserting that the contemplation-of-death provision of the estate tax act was sufficiently elastic to include the tax concept of ownership reflected in the joint-property provision of the same act. The alliance between those tribunals on this point was recently broken, however, when the Tax Court shifted to the competing view supported by taxpayers and the appellate court for the Ninth Circuit. It now believes that the two provisions mentioned above are complete strangers even though at one time these two were …

Estoppel And Crown Privilege In English Administrative Law, Bernard Schwartz

Michigan Law Review

Perhaps the most anachronistic doctrine in Anglo-American public law is that of sovereign immunity. Under it, the State is placed in a privileged position of immunity from the principles of law which are binding upon the ordinary citizen, unless it expressly consents to be bound by such principles. In Anglo-American law the infallibility attributed to the King in the days when he was personally sovereign has been more recently recognized in the State, which the Crown now merely personifies. Thus, even today, and even in the American democracy, the basic principle of public law is that the King can do …

Regulation Of Business - Sherman Act - Administration And Enforcement - A Re-Analysis Of Consent Decrees, Paul R. Haerle S.Ed.

Michigan Law Review

This comment will deal with a review of the history, nature, and use of the consent decree, an analysis of some of the more recent and important decrees, and a discussion of the crucial problem, raised especially by the Report of the Attorney General's National Committee to Study the Antitrust Laws, of the constitutional and statutory bases (or lack thereof) for the relief granted by consent decrees.

Constitutional Law - Criminal Law - Power Of Federal Government To Commit Mentally Incompetent Persons Charged With Federal Crimes, William C. Becker S.Ed.

Michigan Law Review

Petitioner was indicted for robbery from a United States Post Office. After a series of hearings and examinations, the district court found petitioner so mentally incompetent that he could not stand trial, and that, if released, he would probably endanger the safety of the officers, property, or other interests of the United States. The district court ordered petitioner committed to the custody of the Attorney General for confinement in a mental institution. This order was affirmed by the Court of Appeals for the Eighth Circuit, one judge dissenting. On certiorari to the Supreme Court of the United States, held, …

Constitutional Law - Freedom Of Religion - Fluoridation Of City Water, John M. Webb S.Ed.

Michigan Law Review

In its proprietary capacity the City of Bend maintains and operates a water system with the exclusive right to supply water to its inhabitants. In February 1952 the mayor and city commissioners adopted an ordinance providing for the introduction of fluorine into the water supply to reduce dental caries in the teeth of young children. The plaintiff as a resident and taxpayer brought suit to enjoin such action. A demurrer to his complaint was sustained. On appeal, held, affirmed. A city, in the exercise of its police power, may enact reasonable regulations for the protection of the public health, …

Corporations - Statutes Providing For Both Cumulative Voting And Classified Boards, David W. Swanson S.Ed.

Michigan Law Review

The shareholders of the Winous Company amended the articles of incorporation to provide for staggered elections whereby one of the three directors would be elected each year to serve a three-year term. The Ohio Code provides for classified boards, and contains a guarantee of the right to vote cumulatively which is not to be restricted by the articles of incorporation. The county court of appeals reversed the court of common pleas and held the amendment invalid because it nullified the right to vote cumulatively. They interpreted the cumulative voting provision as specific and therefore a limitation on the more general …

Morris & Leach: The Rule Against Perpetuities, William F. Fratcher

Michigan Law Review

A Review of The Rule Against Perpetuities By J. H. C. Morris and W. Barton Leach.

The Law School - 1955-1956, E. Blythe Stason

Michigan Law Review

Another law school year has become a part of the record of history, and in the belief that some of the pertinent historical facts are of interest to readers of the Law Review, I take advantage of these pages to report some of the principal items of interest arising in connection with the work of the year. The facts and figures herein set forth are derived in large part from the annual report being submitted from the Law School to the President and Board of Regents of the University.

The Fourteenth Amendment Reconsidered, The Segregation Question, Alfred H. Kelly

Michigan Law Review

Some sixty years ago in Plessy v. Ferguson the Supreme Court of the United States adopted the now celebrated "separate but equal" doctrine as a constitutional guidepost for state segregation statutes. Justice Brown's opinion declared that state statutes imposing racial segregation did not violate the Fourteenth Amendment, provided only that the statute in question guaranteed equal facilities for the two races. Brown's argument rested on a historical theory of the intent, although he offered no evidence to support it. "The object of the amendment," he said, "was undoubtedly to enforce the absolute equality of the two races before the law, …

Rodell: Nine Men: A Political History Of The Supreme Court Of The United States From 1790 To 1955, Robert L. Howard

Michigan Law Review

A Review of Rodell: Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955. By Fred Rodell.

The Martial Deduction And Equalization Under The Federal Estate And Gift Taxes Between Common Law And Community Property States, Paul E. Anderson

Michigan Law Review

In 1948, as the culmination of much dissatisfaction with the treatment of community property under the federal estate and gift tax laws, Congress adopted a new formula for the treatment of gifts and bequests between spouses; this formula was known as the marital deduction. It has remained practically unchanged since its adoption and still stands as an integral part of our federal estate and gift tax structure.

The basic purpose of the deduction was to provide equalization in estate and gift tax treatment between spouses residing in community property states and those residing in common law property states. The plan …

Constitutional Law - Equal Protection - Legality Of Plans For Maintaining School Segregation, John B. Huck

Michigan Law Review

On May 19, 1954, the Supreme Court of the United States declared that segregation in public schools was a denial of equal protection of the law. Since that date many and varied plans have been proposed to maintain segregated education by avoiding the impact of the decision. The legality of three of these proposed avoidance devices will be analyzed in this comment.

Recent Books, Michigan Law Review

Michigan Law Review

A List of Books Received by Michigan Law Review

Constitutional Law - Interstate Commerce - Power Of States To Recalculate Aircraft Operating In Interstate Commerce, Robert W. Steele

Michigan Law Review

Defendant village, located one mile from Idlewild Airport, passed an ordinance prohibiting air flight over the town at less than 1,000 feet. Plaintiffs brought suit to enjoin enforcement of the ordinance, with Civil Aeronautics Board intervening as· plaintiff. The Civil Aeronautics Act of 1938 gives the CAB the authority to regulate aircraft in navigable air space, and the authority to define navigable airspace by setting minimum altitudes for flight. The CAB minimum altitude rules provide that aircraft flying over congested areas shall not be operated below 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet, except …

Sales - Contributory Negligence - Use As A Defense In Action For Breach Of Implied Warranty, Thomas S. Erickson

Michigan Law Review

Defendant installed an oil burner in plaintiff's apartment building. The burner failed to function properly and exploded two months after installation. There was no evidence that the furnace was repaired subsequent to the explosion. Plaintiff continued to use the furnace for four years until a second explosion caused considerable damage to the building. Upon inspection, the cause of the explosions was found to be a defective system of heating and piping the oil. Plaintiff brought this action for breach of implied warranty to install the furnace in a good and workmanlike manner and recovered consequential damages. On appeal, held, …

The Installment Land Contract As A Junior Security, E. George Rudolph

Michigan Law Review

It is the purpose of this paper to explore the problems of one group whose members are increasingly, and more or less as a matter of necessity, finding themselves in the role of mortgagees, or vendors under installment purchase contracts, although they do not fit the assumed pattern. This group consists of persons who own homes subject to existing mortgages and for one reason or another decide to sell. The existing mortgages may be insured by the Federal Housing Administration or by the Veterans Administration or they may be uninsured mortgages held by building and loan associations or other financial …

Social Scientists Take The Stand: A Review And Appraisal Of Their Testimony In Litigation, Jack Greenberg

Michigan Law Review

"How to inform the judicial mind, as you know, is one of the most complicated problems,'' said Justice Frankfurter during argument of the school segregation cases. And as law deals more and more with issues of great public consequence the judiciary's need for knowledge increases. Much of this knowledge is within the realm of what are called the social sciences.

Although jurisprudents and social scientists have long complained of a gulf between law and social science, little notice has been given to the recent, recurrent collaboration between the two at the trial level. In a variety of cases social scientists' …

Bills And Notes - Holders In Due Course - Payment To An Impostor, Thomas S. Erickson

Michigan Law Review

Drawer bank drew a check on the plaintiff bank payable to a depositor on the faith of a withdrawal order purportedly signed by the depositor but actually forged by an impostor. The impostor forged the indorsement and cashed the check at defendant bank which received payment from plaintiff-drawee bank. Two years later, upon the death of the impostor, the fraud was discovered. Plaintiff-drawee bank voluntarily reinstated the drawer bank's account and, standing in the drawer's shoes, it won a judgment to have its account with the defendant reinstated. On appeal, held, reversed. The policy in favor of the free …

Evidence - Admissibility - Extent To Which Juror's Affidavit May Be Used To Impeach Verdict, Herbert R. Brown S.Ed.

Michigan Law Review

Defendant was convicted of murder in the first degree and made a motion for a new trial on the basis of a juror's affidavit which asserted that the jury had been divided eight to four in favor of life imprisonment over the death sentence, that subsequently several jurors introduced into the deliberations the fact that the defendant had been charged, in another indictment, with assault with intent to kill, that this became a part of the jury's deliberation, and that, as a result, the jury did not recommend life imprisonment and, instead, the death sentence was imposed. On appeal, held …

Labor Law - Lmra - Discrimination Discharge - Effect Of Legal Ground For Discharge Where Possible Dual Motivation Exists, Joy Tannian S.Ed.

Michigan Law Review

Respondent discharged an employee under the terms of a union contract which provided that employees could be discharged for failure to carry out the employer's orders. It was undisputed that the employee had failed to submit required reports on at least two occasions. A complaint alleging the commission of an unfair labor practice was filed. The National Labor Relations Board found that the employee had been discharged as a :reprisal for his union activities in violation of section 8 (a)(1) of the amended National Labor Relations Act. The Board ordered reinstatement under section 10 (c) of the act. In an …

International Law - Sovereign Immunity - Seizure Of Property Under Restrictive Immunity Doctrine, Norman A. Zilber S.Ed.

Michigan Law Review

While in Korea unloading a cargo of rice purchased by the Korean Government, libellant's steamship was damaged by respondent's lighter which was assisting in the unloading operation. Libellant instituted suit against the Republic of Korea in a federal district court. in New York claiming the court had jurisdiction over the respondent by virtue of a writ of foreign attachment on Republic of Korea funds deposited in two New York banks. Respondent, in a special appearance, moved to dismiss the libel on the alternative grounds that property of a foreign sovereign is immune from seizure and that the purchase of rice …

Torts - Parent - Child Action By Child For Indirect Interference With Family Relationship, William R. Jentes S.Ed.

Michigan Law Review

Five minor children sued for the loss of their mother's support, care and affection which resulted from the defendant's negligent injury of the mother in an auto accident. Defendant moved to dismiss the complaint for failure to state a claim upon which relief could be granted. Held, motion denied. A minor child has a cause of action for damages resulting from an indirect, negligent interference with his rights in the family relationship. Scruggs v. Meredith, (D.C. Hawaii 1955) 134 F. Supp. 86.8.

Mason: Security Through Freedom. American Political Thought And Practice., William R. Jentes S.Ed.

Michigan Law Review

A Review of Security Through Freedom. American Political Thought and Practice. By Alpheus Thomas Mason.

Periodical Index, Michigan Law Review

Michigan Law Review

This index includes articles, comments and some of the longer notes which have appeared in leading law reviews since the publication of the last issue of this Review.

Comparative Legal Research, Some Remarks On "Looking Out Of The Cave", Hessel E. Yntema

Michigan Law Review

Despite this risk and without limiting discussion of comparative legal research to a Platonic theory of knowledge-to which I for one would not accede-the text prompts first the inquiry, unavoidable in a constructive discussion of the matter, whether contemporary legal study in the United States is concerned with shadows in an intellectual cave-or in other words, whether it is true, as I was told years ago, partly perhaps in jest, by a late distinguished member of the Supreme Court, then Attorney General, when, encountering me on a visit to the Department of Justice, he kindly asked what I was looking …

Corporations - Shareholders - Majority Liability For Improper Stock Redemption By Corporation And For Misrepresentations In Private Stock Purchases From Minority Holders, James M. Tobin

Michigan Law Review

In 1942 a seemingly innocuous suit was brought against the Axton-Fisher Tobacco Corporation to determine the propriety of the alteration of a stock redemption. In 1955 Judge Leahy of the Federal District Court for Delaware handed down an opinion on the damages and relief to be given in the case in what he hopefully termed was the final phase of this famous litigation. It is the purpose of this comment to appraise the basis of the recovery allowed by Judge Leahy. Two readily distinguishable problems will be treated: (1) the nature of relief from a stock redemption called by fiduciaries …