Legal Remedies Commons^™

Admiralty - Jones Act - Applicability To Dredge Employees As Seaman, Ross Kipka

Michigan Law Review

Petitioner, a laborer, was employed by respondent on a canal digging project. His duties were those of a handyman on respondent's dredge, which was temporarily attached to shore, and his work consisted of carrying supplies from shore to the dredge, cleaning the dredge, and doing errands ashore. The employee was not a member of a maritime union, but was a member of a laborers' union. He lived at home, worked on an eight hour shift, and brought his meals to his place of employment. He was not subject to the supervision of the officer of the dredge but received his …

Federal Jurisdiction - Securities And Exchange Commission - Application Of Rule X - 10b-5 To Transactions Involving Non-Securities, Richard Singer

Michigan Law Review

Plaintiff brought an action for damages and the cancellation of certain instruments under section 10 (b) of the Securities Exchange Act of 1934 and rule X-10B-5 promulgated thereunder by the Securities and Exchange Commission. She proved a series of interrelated acts which took place over a period of months by which the defendants fraudulently deprived her of both securities and other property. The defendants objected to the jurisdiction of the district court on the ground that rule X-10B-5 was not applicable to transactions involving non-securities. The district court retained jurisdiction on the theory that all of the acts complained of …

Corporations - Appraisal Statutes - Elements In Valuation Of Corporate Stock, John C. Baity

Michigan Law Review

The purpose of this comment is to consider the elements of stock valuation generally applicable under the statutory appraisal remedies, and to analyze in some detail the interpretation of such a statute in one jurisdiction-Delaware.

Admirality - Jurisdiction - Action For Wrongful Death On The High Seas Limited To Admiralty, Robert Knauss S.Ed.

Michigan Law Review

Plaintiff as widow and administratrix seeks damages from the United States for the alleged wrongful death of her husband on the high seas. Action was brought at law under the Federal Tort Claims Act. Government's motion to dismiss was sustained. There is no common law cause of action for wrongful death on the high seas. The federal Death on the High Seas Act gives a remedy to the representative only "in Admiralty," and thus jurisdiction is lacking at law in the district court. Kunkel v. United States, (S.D. Cal. 1956) 140 F. Supp. 591.

Restitution - Constructive Trust Relief For Breach Of Oral Contract To Create Trust In Land, Edward A. Manuel S.Ed.

Michigan Law Review

Plaintiff mining company sued to impose a constructive trust on mineral interests purchased by the defendant employee in breach of his oral agreement with the company. The agreement included a promise to hold any property so acquired in trust for the employer at his election. Ruling that this agreement was unenforceable under the Oklahoma statute of frauds, the trial court relied on the defendant's status as an ordinary employee without duties relating to the acquisition of mineral interests or access to confidential information, and gave judgment for the defendant. On appeal, held, affirmed. Without proof of positive fraud or …

Compulsory Joinder Of Parties In Civil Actions, John W. Reed

Michigan Law Review

Compulsory joinder cases involving interests in land display one peculiar and important characteristic: there is almost never any need in the state courts to wrestle with the question of whether a person is indispensable as distinguished from necessary. One hastens to add that this attribute of land cases appears to have gone largely unnoticed, but it exists none the less. It arises out of the fact that in a suit involving real property it is never impossible for the court to obtain jurisdiction over all persons interested therein to an extent which will enable the court to adjudicate controversies over …

Torts - Unauthorized Autopsy - Non-Survival Of Action, Lee H. Snyder

Michigan Law Review

Plaintiff's husband was struck and killed by a motorbus owned and operated by defendant municipality. The body was removed to a hospital maintained by defendant. Subsequently, at the request and direction of a physician employed by defendant, an autopsy was performed, apparently to determine whether the deceased had been drinking. During the examination certain organs were removed and destroyed. Plaintiff brought an action for damages on the ground that the mutilation was done without her consent and in violation of her legal right to the possession of the body. Plaintiff died while the action was pending, and her administrator continued …

Admiralty - Jurisdiction - Quasi -Contractual Remedy, Ross Kipka S.Ed.

Michigan Law Review

Petitioners paid money to respondent for prospective passage to Europe on his passenger vessel held out as a common carrier. When respondent failed to make the voyage or return the passage money, petitioners sued in admiralty for breach of contract. The libel was in the nature of indebitatus assumpsit for moneys had and received and wrongfully withheld by respondent. The district court held this an action based upon the breach of a maritime contract and therefore within the admiralty jurisdiction. The court of appeals reversed, on the ground that the action was in the nature of the common law indebitatus …

Labor Law - Federal Pre-Emption - An Inroad Through The Violence Doctrine, Richard E. Day

Michigan Law Review

The Wisconsin Supreme Court affirmed the circuit court's enforcement of an order obtained by the Kohler Company from the Wisconsin Employment Relations Board enjoining the appellant union, as a violation of the "Wisconsin Employment Peace Act, from further engaging in mass picketing, coercion, and other activities, which were also unfair labor practices under the amended National Labor Relations Act, to which the Kohler Company was subject. On appeal to the United States Supreme Court, held, affirmed, three justices dissenting. While, as a general matter, a state may not, in furtherance of its public policy, enjoin conduct which has been …

Constitutional Law - Eminent Domain - Condemnation Of Riparian Lands Under The Commerce Power, George F. Lynch S.Ed.

Michigan Law Review

The power of the United States to regulate commerce comprehends a right to control navigation and the means of navigation. To the extent necessary for the enjoyment of this power the government may condemn riparian property. The federal power of eminent domain is limited by the mandate of the Fifth Amendment which requires just compensation for private property taken for a public use. Usually, the standard of just compensation is the market value of the property, taking into consideration the most profitable uses for which the property is suited and likely to be used at the time of the taking, …

Negligence - Breach Of Duty - Liability Of Telephone Company For Failure To Relay Fire Alarm, Cyril Moscow S.Ed.

Michigan Law Review

Upon discovering a fire within his business building, plaintiff immediately went to the telephone and dialed the operator. After telling her his address and requesting that she call the fire department, he left the telephone to fight the fire. The message was not transmitted. When the fire department finally arrived in response to an alarm by a neighbor, the fire was out of control and the entire building was destroyed. Plaintiff sought damages, alleging that the telephone company held itself out to the public as willing to convey messages in case of emergency, and that failure to transmit his message …

Torts - Nuisance - Personal Annoyance As Sole Injury, Michael Scott

Michigan Law Review

Several thousand sales slips, mistakenly printed to bear plaintiff's telephone number, were supplied to the defendant store and were circulated widely by the latter's employees incident to normal sales transactions. Calls from defendant's customers soon burdened plaintiff's telephone, and despite numerous complaints by plaintiff over a two-year period, defendant refused or neglected to terminate use of the incorrect slips. On appeal from judgment for plaintiff in a suit for damages, held, affirmed. Defendant's acts resulted in an actual invasion of plaintiff's right to enjoy her property without unreasonable interference. Damages for personal annoyance and inconvenience alone are allowable in …

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. …

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 …

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, …

Taxation - Federal Income Tax - Damages For Injury To Business As Return Of Capital Or Income, Eric Bergsten S.Ed.

Michigan Law Review

The taxpayers, owners of two movie theatres, recovered $36,000 in a compromise settlement of a Clayton Act suit against the major distributors and exhibitors. The taxpayers claimed that the amount received was a return of capital. The Commissioner claimed the amount received represented the recovery of lost profits. Held, Commissioner upheld. The evidence presented did not warrant a finding that any part of the sum recovered represented a return of capital. Chalmers Cullins, 24 T.C. 322 (1955).

Restitution - Recission - Measure Of Restitution Required Of Rescinding Vendee Of Executed Land Contract, Donald W. Shaffer S.Ed.

Michigan Law Review

Plaintiff vendee sought to rescind an executed contract for the sale of an inn, alleging fraud in the inducement. The lower court granted rescission and ordered repayment to the plaintiff of that part of the purchase price already paid over to defendant- vendor, less $2,500, which was found to be the fair or reasonable rental value for the period of the plaintiff's possession. Both parties appealed, defendant claiming a higher rental figure and plaintiff asserting that no rental should be allowed. Held, the plaintiff should be charged rent measured by the value of the benefits which accrued to him …

Restitution - Fraud - Prospective Vendee's Rights Against Broker, Stephen C. Bransdorfer S.Ed.

Michigan Law Review

Defendant was retained as a real estate agent by the vendor. He listed the vendor's eighty acres and buildings for sale. Plaintiff, a prospective purchaser, offered $7,000 for the property. Defendant failed to transmit this offer to the vendor and, instead, fraudulently caused the vendor to convey to two strawmen, as purported purchasers, for $6,500. After the defendant had falsely told the plaintiff that the latter's offer for the whole tract had been rejected, plaintiff purchased seventeen acres, including the buildings, for $6,000, an admittedly fair price. The strawmen conveyed the remaining sixty-three acres to the defendant's son, defendant giving …

Family Responsibilty Under The American Poor Laws: Ii, Daniel R. Mandelker

Michigan Law Review

No substantive statutory provision fulfills the purpose for which it was enacted unless fair and efficient procedures are provided for its enforcement. Under the Elizabethan family responsibility law, enforcement was confined to the parish justices of the peace, who at that time exercised both administrative and judicial functions. The blending of administrative and judicial functions no longer being the rule in American local government, practically all of the American family responsibility statutes provide for some judicial procedure by which the support duty may be enforced. The basic issue with which the courts have been concerned in applying these statutory remedies …

International Law - United Nations - Administrative Tribunals As Adjudicators Of Disputes Arising Out Of Employment Contracts With International Organizations, Edward W. Powers S.Ed.

Michigan Law Review

A crucial though relatively unpublicized problem arising from the creation of international organizations is that of establishing and maintaining the staff or secretariat needed to perform the administrative functions of these organizations. Such a staff must possess not only the competence and integrity of a national civil service, but also an international loyalty or outlook which includes " ... an awareness . . . of the needs, emotions, and prejudices of the peoples of differently-circumstanced countries ... [and] a capacity for weighing these frequently imponderable elements in a judicial manner· before reaching any decision to which they are relevant."

Insurance - Recovery - Land Contract Purchaser Allowed Recovery On Both Vendee's And Vendor's Policies In Excess Of Loss, Jerome K. Walsh, Jr.

Michigan Law Review

An owner of realty entered into a contract to sell the land to the plaintiff. The vendor then took out fire insurance on his interest in the amount of $6,000 and the plaintiff obtained a policy covering his interest in the sum of $12,000, with a "three-fourths value" clause. Before performance of the contract and transfer of title, a fire occurred which caused $12,000 damage to the property. After the plaintiff paid the full contract price and took title to the property, he demanded and received an assignment of the claim under the vendor's policy. Plaintiff then brought suit on …

Rationale Of Valuation Of Foreign Money Obligations, Charles Evan

Michigan Law Review

What then should a creditor of a foreign money obligation collect where there was a delay in payment? When are damages for depreciation of foreign money recoverable? As of what time and in what currency are they to be computed? How is the value of a foreign money obligation to be measured where no damages may be had? The answers to these and other incidental questions require a thorough analysis of certain features peculiar to the law of money.

It is the purpose of this article to clarify these problems, to sum up the primary principles by which they are …

Maritime Lien Priorities: Cross-Currents Of Theory, Roger G. Connor

Michigan Law Review

The purpose of this article is not to develop a synthesis, for no synthesis is possible, but to give an account of the general theories governing maritime lien priorities, together with a discussion of the concrete issues which arise in their application.

Problems In The Removal Of Federal Civil Servants, Ivor L. M. Richardson

Michigan Law Review

The publicity given in the past few years to the loyalty and security program has brought the civil servant of the federal government increasingly before the public eye. At the same time little attention has been paid to the plight of a civil servant who is dismissed from his post for reasons other than those relating to loyalty and security. It is the purpose of this paper to consider different aspects of the removal of civil servants. We shall discuss (1) the government's power to remove civil servants both at common law and under statutes which deal with the exercise …

Taxation - Federal Income Tax - Punitive Damages And Recovered "Insider's Profits" Taxable As Income, Alice Austin S.Ed.

Michigan Law Review

In previous litigation one of the defendant taxpayers received punitive damages for fraud practiced upon it and both received treble damages for injuries to business caused by conduct in violation of the federal antitrust laws. The court of appeals affirmed the Tax Court's rulings that these receipts were not taxable as gross income. On certiorari to the Supreme Court, held, reversed. Money received as punitive awards is includible in gross income under section 22 (a), I.R.C. (1939). Commissioner v. Glenshaw Glass Co. and William Goldman Theatres, Inc., 348 U.S. 426, 75 S.Ct. 473 (1955).

The Patent-Antitrust Problem, Bartholomew Diggins

Michigan Law Review

The Patent-Antitrust section of the Report of the Attorney General's National Committee to Study the Antitrust Laws is an excellent analysis of the existing law and is an invaluable handbook for practitioners in this difficult field. The writer's approach to the problem is different from that of the committee and before commenting specifically on the Report it is only fair to state the writer's views of the problem lest differences in viewpoint give the impression of criticism of the Report.

In any approach to the patent-antitrust problem there is a basic question: does a "patent-antitrust problem" exist? The Report …

Antitrust Administration And Enforcement, John T. Chadwell

Michigan Law Review

The importance of the nation's antitrust policy requires that administration and enforcement powers and techniques be equal to the huge task of effectively safeguarding competition. The recommendations of the Attorney General's Committee represent a statesmanlike effort to balance the need for effective enforcement with the need for the preservation of fairness and the conservation of time and resources in antitrust litigation. Some of the recommendations will undoubtedly engender heated controversy; others seem relatively uncontroversial.

Many individual topics are dealt with in the Report of the committee and space does not permit comment upon all of them. The following discussion is …

Restitution - Election Of Remedies - Action In Quasi-Contract Against Joint Tortfeasor As Barring Fraud Action Against Other Joint Tortfeasors, Douglas Peck S.Ed.

Michigan Law Review

Plaintiff sued for fraud, alleging that defendant engraving companies secretly agreed with an agent of the plaintiff to give the agent a commission in return for which the agent was to contract for engraving work to be done by the defendants for plaintiff at a rate in excess of the fair market price for such work. Upon discovery of the fraud and prior to the commencement of this action, plaintiff had instituted an action in a state court against its agent for money had and received, and had obtained an attachment. Upon defendants' motion to dismiss the fraud action, held …

Real Property - Compensation For Abrogation Of A Restrictive Covenant By Public Authority, Howard N. Thiele, Jr. S.Ed.

Michigan Law Review

It is the purpose of this comment to examine the legal consequences produced when the tranquility of the residential district is disturbed by governmental action.

Admiralty- Conflict Of Laws - Application Of The Jones Act, Robert B. Fiske, Jr. S.Ed.

Michigan Law Review

Admiralty traditionally did not give a seaman a right of action for negligence unless it could be attributed to the unseaworthiness of the vessel. An injured seaman was limited to two remedies: an action for maintenance and cure, or an action based on -unseaworthiness. To remedy this situation, Congress in 1920 passed the Jones Act. This act was framed in terms of "any seaman who shall suffer personal injury in the course of his employment," and gave to such seamen all the rights granted by statutes modifying or extending the common law right or remedy in cases of personal injury …