Common Law Commons^™

Some Possible New Fields In A Narrowing Act, Ross O'Donoghue

Vanderbilt Law Review

Both Congress and the courts, particularly the Supreme Court, have increasingly tended to narrow the scope of the Tort Claims Act, but within these confines there are certain classes of torts, well-recognized in the common law, which have been little used or totally neglected as the basis for suits. It is the purpose of this paper to suggest some of these and to consider their availability. Of course, such speculation may prove faulty in some cases and overlook others actually available. Prediction in law is a very risky business, so that some of these suggestions will very likely not stand. …

Negligence-Duty Of Care-Determination Of Plaintiff's Status Under Guest Statute, Donald M. Wilkinson, Jr.

Michigan Law Review

Plaintiff, a boy scout, was assisting in a paper collection for the benefit of his troop, and while so doing, was injured when he attempted to regain his position on a utility trailer attached to the assistant scoutmaster's automobile. Plaintiff brought suit against the assistant scoutmaster, alleging negligent operation of the automobile. Defendant's motion for judgment on the pleadings was granted in the lower court, but this ruling was reversed in the court of appeals. On appeal to the Supreme Court of Ohio, held, affirmed, three judges dissenting. Defendant was deemed to have been benefited by plaintiff's activities to …

Negligence-Federal Employer's Liability Act-Extension Of The Safe Place To Work Doctrine, Charles E. Oldfather S.Ed.

Michigan Law Review

Plaintiff, a lumber inspector employed by the defendant railroad, was inspecting railroad ties on a dock owned by an independent lumber company. The employees of the lumber company had piled the ties so that the ends were either flush with or protruded over the edge of the dock. In order to inspect the ends, the plaintiff assumed a ''bent-over" position in which his right foot was on the edge of the dock, his left hand on the pile and his left foot suspended in the air. After losing his balance, he placed his left foot on the dock where it …

Torts-Assault And Battery-Use Of Traps To Protect Property From Felonious Taking, Charles E. Oldfather S. Ed.

Michigan Law Review

Plaintiff brought an action for personal injuries. Defendant planted two sticks of dynamite in the floor beneath the door of his mining warehouse in order to prevent repeated thefts of personal property from the building. The dynamite was rigged to explode when the door was opened. Plaintiff, with the intent of stealing whatever he could, broke the lock, opened the door, and from the ensuing explosion received leg and foot injuries. Plaintiff's act was a statutory felony. Defendant testified that he in good faith thought that the amount of dynamite used would merely frighten the plaintiff. Trial court held the …

The King Does No Wrong -- Liability For Misadministration, Reginald Parker

Vanderbilt Law Review

The age-old rule of the common law that a citizen may not seek redress from the government for wrongs committed by the latter is often restated in the form of two maxims. One is that "the king can do no wrong." It refers to "wrongs" in the narrower sense of the word, meaning torts and related delicts. It has its counter part if not origin in the Roman-Byzantine holding, princeps legibus solutus est.' Many modern countries and some states have abrogated the rule. The other maxim, "the sovereign cannot be sued without his consent," precludes any law suit, not merely …

Torts-Alienation Of Parent's Affection, John J. Edman S.Ed.

Michigan Law Review

Plaintiff, a minor child, brought a tort action against defendant for enticing her mother to desert her, thereby depriving plaintiff of support, maintenance, and maternal care and affection. The trial court sustained defendant's demurrer. On appeal, held, affirmed. The statutes of the state provide other means of support of the child, and he has no right of action for the deprivation of a parent's love and affection. Nelson v. Richwagen, (Mass. 1950) 95 N.E. (2d) 545.

The Federal Tort Claims Act And Its Application To Military Personnel, Harold F. Mcniece, John V. Thornton

Vanderbilt Law Review

The background and history of the Federal Tort Claims Act" are well known. Stemming in part from the medieval political theory that the King could do no wrong, a doctrine evolved in English law that the Crown was, in the absence of its consent, immune to suit. This concept became a part of the American common law, and in the main was enforced as rigorously on this side of the Atlantic as in the mother country.

The oft-times inequitable consequences of sovereign immunity in the United States were at first sought to be ameliorated through the device of private legislative …

Equity, Henry L. Mcclintock

Mercer Law Review

Insofar as practicable, the arrangement followed by Professors Hilkey and Hall in the review of equity in the survey for 1949-1950, will be followed, but the differences in the subject matter of the equity cases decided during the two periods necessarily requires many changes in that arrangement. During this past year, as during the one preceding it, the Georgia cases dealing with equity have been concerned mainly with the application of established equity principles to various fact situations; there has been substantially no occasion for the consideration of new principles. In this survey only cases which discuss or apply equity …

Landlord And Tenant-Liability Of Landlord To Persons On The Premises-Breach Of Covenant To Repair, Thomas P. Segerson

Michigan Law Review

Plaintiff, a carpenter, hired by tenant, suffered personal injuries in a fall caused by a defective railing on the rear porch of premises leased by defendant to tenant. By the terms of the lease, tenant was given exclusive possession of the premises, while defendant agreed to keep the rear porch in repair. Defendant had failed to repair the railing on being notified of its defective condition. From a judgment holding defendant liable to plaintiff for the injuries sustained; defendant appealed. Held, reversed. In the absence of control of the premises, a lessor is not liable in tort for personal …

Torts-False Imprisonment-Detention Of Insane Person, John A. Hellstrom S.Ed.

Michigan Law Review

Plaintiff sued defendant doctor for false imprisonment arising out of her detention as an insane person. Defendant had examined plaintiff at the request of the plaintiff's husband, called the police, and advised that she be detained as dangerous. Plaintiff was released ten days later but there was evidence to the effect that she was of unsound mind when originally detained. The arrest and detention of insane persons without a warrant is authorized by a District of Columbia statute on the affidavits of two responsible persons supported by certificates from two doctors or when such a person is found in a …

Torts-False Imprisonment-Detention Of Insane Person, John A. Hellstrom S.Ed.

Michigan Law Review

Plaintiff sued defendant doctor for false imprisonment arising out of her detention as an insane person. Defendant had examined plaintiff at the request of the plaintiff's husband, called the police, and advised that she be detained as dangerous. Plaintiff was released ten days later but there was evidence to the effect that she was of unsound mind when originally detained. The arrest and detention of insane persons without a warrant is authorized by a District of Columbia statute on the affidavits of two responsible persons supported by certificates from two doctors or when such a person is found in a …

Actions For Wrongful Death In Tennessee, William T. Gamble

Vanderbilt Law Review

Familiar to most lawyers is the bit of law-lore to the effect that the reason the earliest Pullman cars were so constructed that passengers slept with their heads towards the front of the train was so that they would be killed rather than merely injured if an accident occurred.' Although the reason assigned for the Pullman Company's practice is purely fictitious the logic of the fiction is sound, for the common law gave no civil action for a wrongfully inflicted injury if death occurred before a judgment was recovered, and it thus was cheaper to kill a person than to …

Bases For Master's Liability And For Principal's Liability To Third Persons, Merton Ferson

Vanderbilt Law Review

The law with regard to principal and agent grew up as part and parcel of the law of contracts. The law with regard to master and servant grew up as part and parcel of the law of torts. Each one takes its origin far back in the history of the common law.

Agents were used in an early day to effect livery of seisin, to create covenants, and to carry on commercial transactions. The terms "principal" and "agent" may be of modern origin. But the power of one person to bind another in legal transactions was familiar in the days …

Bailment-Limitation Of Liability-Effect Of Posted Notice Or Stipulation On Receipt, Walter L. Dean

Michigan Law Review

Plaintiff deposited a traveling bag in the parcel room at defendant's railroad station, paid a ten cent fee, and was issued in return a numbered check or receipt on which was printed, inter alia, a notice that defendant's liability would be limited to $25 unless an excess valuation were declared and paid for at the time of deposit. Plaintiff testified that he hadn't read the printing on the check and hadn't seen a posted sign which contained the same information. On demand the defendant was unable to redeliver the bag. In an action to recover the value of the bag …

Federal Procedure--Third-Party Practice--Contbibution Among Joint Or Concurrent Tort-Feasors, Paul M.D. Harrison

Michigan Law Review

A sued B for injuries arising out of a collision between B's taxicab and an automobile driven by C, in which A was riding as a guest passenger. B filed a third-party complaint against C, who denied B's allegation of negligence and counterclaimed against B for personal injuries. A did not amend his complaint to assert a claim against C. The jury found that A's injury was caused by the concurrent negligence of B and C. Judgment for $11,500 was given to A against B, and B was awarded a judgment against …

Libel And Slander-Testamentary Libel, Charles Hansen S.Ed.

Michigan Law Review

Although the right to recover for injury from admittedly defamatory matter would seem to be clear, the law imposes a series of obstacles when the offending statements are embodied in a will. Of the few cases which have arisen in this area, a recent decision, Carver v. Morrow, serves to illustrate the general problem. In this case, plaintiff claimed that portions of testatrix' will defamed him. After the will was probated, he brought an action against testatrix' executors on the ground that publication had been effected by probate, and that therefore a cause of action in libel existed against …

Torts-Family Relationship-Child's Right To Recover For Enticement Of Parent From Home, William H. Lowery

Michigan Law Review

Plaintiff, a six year old girl, sued to recover damages alleged to have been sustained as a result of defendant's enticing her mother from the family home. Plaintiff contended that as a child and member of the family she had a legally protected right to maintenance of the family relationship. Defendant answered that no tort had been committed, since no right in the plaintiff was recognized at common law and that to recognize such a right would amount to judicial legislation. From a judgment in favor of plaintiff, defendant appealed. Held, affirmed. Allowing a child a right of action …

The Status Of The Last Clear Chance Doctrine In The State Of South Carolina, A. L. Hardee

South Carolina Law Review

No abstract provided.

Executors And Administrators-Personal Tort Liability-Effect Of Statutes Authorizing Continuance Of Decedent's Business, Leroy H. Redfern S.Ed.

Michigan Law Review

It is the purpose here to consider the effect of statutes which provide authority for personal representatives to operate a business on the representatives' tort liability. An important factor in deciding whether the statutes change the common law rules relating to tort liability of executors and administrators is the manner in which the courts regard those rules-are they fair and do they make for good law, or are they harsh and arbitrary? For this reason attention is first directed to the practical operation of and reasons behind the common law doctrine.

Negligence-Proximate Cause, W. Stirling Maxwell

Michigan Law Review

An owner left his car in defendants' parking garage with the key in the ignition. Defendants' employee stole the car and loaned it to X who had no knowledge of the theft. X, while driving the car, ran into plaintiff nearly twelve hours after the theft. Held, as a matter of law defendants were not guilty of negligence. Assuming, however, that defendants were negligent, such negligence was not the proximate cause of plaintiff's injuries. Howard v. Swagart, (App. D.C. 1947) 161 F. (2d) 651.

Death By Wrongful Act-Effect Of Double Death On Recovery Under Minnesota "Death" And "Survival" Statutes, Robert K. Eifler

Michigan Law Review

Recovery was sought by the surviving spouse and next of kin against the estate of a negligent driver where both the passenger and the driver were fatally injured and died "in the same traffic accident." Held, where both the injured person and the wrongdoer die, an action survives against the personal representatives of the wrongdoer. Kuhnle v. Swedlund, 220 Minn. 573, 20 N.W. (2d) 396 (1945).

Innkeepers-Failure Of Guest To Disclose Character Of Contents Of Baggage As Negligence, Kenneth Liles

Michigan Law Review

In an action seeking damages, based on the alleged negligence of a bailee for hire in causing the loss in transit of a salesman's stock of valuable jewelry, because the departing bailor-guest's failure to disclose the extraordinary value of the contents of his trunk amounted to negligence, held, recovery denied. Shiman Bros. & Co., Inc. v. Nebraska National Hotel Co., (Neb. 1945) 18 N.W. (2d) 551.

Torts-Libel-Publication Of Allegations In A Declaration, William H. Buchanan S.Ed.

Michigan Law Review

Defendant published as a news items in its newspaper the fact that the plaintiff had been sued for the alleged alienation of one Emerson's wife, and also printed matter contained in Emerson's declaration. This publication occurred before the alienation suit was tried. Later, a verdict was rendered in that suit in favor of the present plaintiff. The lower court in the libel action decided in favor of the plaintiff. Held, affirmed. The publication of the report of the filing of the action and the charges made in the declaration before any judicial action had been taken was not privileged. …

Battersey's Case (1623): Some Ups And Downs Of The Rule Three Pronounced, Affecting Contributions Between Joint Wrongdoers, John H. Hatcher

West Virginia Law Review

No abstract provided.

Torts - Joint Tortfeasors - Husband And Wife - Torts Between Spouses - Immunity Of Third Persons, Michigan Law Review

Michigan Law Review

Plaintiff sued defendants, including plaintiff's husband, for jointly causing a false charge of adultery to be made against plaintiff in a divorce suit. The defendants' demurrer to the complaint was sustained in the trial court as to each and all of the defendants. Held, that although plaintiff's husband was immune from liability, a cause of action had been made out against all the rest of the defendants, and the judgment in their favor was reversed. Ewald v. Lane, (App. D. C. 1939) 104 F. (2d) 222.

Bankruptcy -Trustee's Liability - Effect Of Requirement Of Deposit In Designated Depositary On Trustee's Common Law Duty Of Due Care, Russel T. Walker

Michigan Law Review

In a suit to charge a trustee in bankruptcy for the loss of funds of the bankrupt estate caused by insolvency of the depositary bank, the trustee contended that as he had fulfilled the requirement of section 61 of the Bankruptcy Act by depositing the funds of the estate in a "designated depositary," he could not be charged with liability for any loss occurring thereafter; he argued that section 61 repealed, by implication, the trustee's common-law duty of due care in the handling of estate funds after they were deposited in a "designated depositary." Held, the fact that the …

Liability In Anglo-American Law For Damage Done By Chattels, Fowler V. Harper

Articles by Maurer Faculty

No abstract provided.

Gratuitous Promises-A New Writ?, Warren L. Shattuck

Michigan Law Review

Under the early common law, the fact situations which presented actionable wrongs were limited in number and stereotyped into various writs which issued from the Lord Chancellor. Only as new writs were devised by him was it possible for new fact situations to achieve the dignity of justiciability and so raise legal rights and duties. But with the liberalization of pleading the recognition of new legal rights and duties became a judicial function. In consequence, the constant struggle of new fact patterns for a place in the law is now principally waged before the courts. In this struggle some fail, …

Declaratory Judgments- Extension Of Protection Against Injuries To Personality

Michigan Law Review

The widespread acceptance of the declaratory judgment as a statutory supplement to common law and equitable remedies has raised some searching questions as to the relation between right and remedy in Anglo-American law. The declaratory judgment can operate in anticipation of specific wrongs that would be a basis for ordinary legal or equitable relief. It does not depend for its efficacy on the use of the familiar remedies of law and equity - that is, on damages, specific restitution in replevin and ejectment, and the injunction and specific enforcement in equity. The question may therefore be asked whether the development …

Rights Of Action Under Death And Survival Statutes, Bowen E. Schumacher

Michigan Law Review

Upon the injury of a person by the wrongful act of another and his death subsequent to and as a result of the injury, it would seem at a glance that there has been two wrongs done. First, there is the wrong to the injured person, giving rise to an action of tort against the wrongdoer, and secondly the injury to the relatives who, by the death, are deprived of support or financial contribution from the decedent. At common law the right of action accruing to the person before his death, i. e. the action for the tort, abated at …