Litigation Commons^™

Practice And Procedure - Voluntary Nonsuit - Treatment Under Michigan Court Rules, Michigan Law Review

Michigan Law Review

In an action for malpractice, after the plaintiff had rested, defendant moved for a directed verdict. In response to an inquiry as to how he intended to rule upon the motion, the trial judge indicated that he would have to grant the motion. Plaintiff then moved for a voluntary nonsuit, but the judge proceeded to direct a verdict for the defendant. He later granted a motion to vacate the order directing a verdict and to set aside the verdict and judgment. Defendant sought mandamus to compel the trial judge to reinstate the directed verdict and judgment. Held, that under. …

Judgments - Propriety Of Finding That A Nonparty Conducted The Defense, David N. Mills

Michigan Law Review

A patent infringement suit against a distributor was dismissed on the ground that plaintiff's patents were invalid. A finding was incorporated in the judgment that the defense had been "openly and avowedly conducted" by the manufacturer of the article distributed by defendant. Plaintiff objected that the finding "on its face would be a valid estoppel" in case plaintiff later wished to sue the manufacturer in a separate suit. Held, that plaintiff was entitled to have the finding deleted from the judgment since the finding was not necessary to a disposition of the issues between plaintiff and defendant. Minneapolis- Honeywell …

Damages - Expenses Of Litigation - Counsel Fees In A Previous Suit, Gerald M. Lively

Michigan Law Review

Plaintiffs brought this appeal from a judgment dismissing an action to recover the attorney's fees and other expenses of the prosecution of a prior suit with defendant. In the former action plaintiffs had secured a decree requiring defendant to convey to them certain property which the defendant had withheld fraudulently and maliciously. In the present action defendant successfully had moved to dismiss on the grounds that attorney's fees as between original litigants were not recoverable and further that this claim was res judicata due to the prior suit. Held, one justice dissenting as defendant's intentional and wilful misconduct necessitated …

Federal Courts - Conflict Between The Federal Declaratory Judgments Act And The Johnson Act, Spencer E. Irons

Michigan Law Review

Plaintiff gas company contracted with defendant city to furnish gas from a certain field at rates fixed by ordinance. Plaintiff reserved the right, when this field became insufficient, to furnish gas from other fields at rates to be adjusted in accordance with the increased cost. In a suit in the federal district court for a declaratory judgment, plaintiff sought a determination that the local field had become insufficient, and that it was necessary to furnish gas from other fields. Plaintiff alleged that defendant city refused to recognize the changed conditions and insisted that plaintiff continue to furnish gas at the …

Negligence - Assumption Of Risk - Necessity For Contractual Relation, Edward H. Schlaudt

Michigan Law Review

While walking behind defendant through woodland, plaintiff suffered an eye injury caused by the negligence of the defendant in bending over a small sapling and allowing it to fly back and strike plaintiff. Verdict and judgment were for plaintiff. Defendant moved for a directed verdict on the ground of assumption of risk, and appealed from a denial of the motion. Held, from the facts of the case, it cannot be ruled as a matter of law that the plaintiff knew and comprehended the danger which caused his injury and that he voluntarily exposed himself thereto, and, therefore, the judgment …

Judgments - Declaratory Judgments - Use In Statutory Interpretation, Reid J. Hatfield

Michigan Law Review

A mining company, subject to the Fair Labor Standards Act, brought an action against the United States District Attorney for Idaho for a declaratory judgment that it was not subject to threatened criminal prosecutions and penalties under the act. The company had not included the forty minutes allowed for lunch in estimating the number of hours worked by its employees. The employees and their labor union threatened to sue, claiming the lunch period was part of their working hours and that they were therefore to that extent required to work overtime without extra pay. The Department of Labor and the …

Parties - Right To Sue Defendant By Fictitious Name, Oliver B. Crager

Michigan Law Review

Plaintiff brought an action of detinue to repossess an electric refrigerator against "John Doe, whose name is to the plaintiff otherwise unknown, but will be inserted by way of amendment when ascertained," in accordance with an Alabama statute allowing suits to be started against defendants by a fictitious name. Writ of seizure issued on the same date as the summons, but the sheriff did not make service. When it was found that the refrigerator was in the possession of a woman, plaintiff amended the complaint to substitute "Mary Roe, whose name is to the plaintiff otherwise unknown, etc." Service was …

Damages - Injunction Bond - Attorney's Fees As Damages, Harold P. Graves, Raymond H. Rapaport

Michigan Law Review

Frequently, when a litigant seeks to establish rights with respect to particular property, it is possible for the opposing party so to act with respect to the property involved, while litigation is pending, as to deprive the plaintiff of the substantial benefit of his remedy should he prevail. Consequently, on prima facie showing of right, courts of equity will grant a temporary injunction to "freeze" the situation until the rights of the parties are finally determined. Since the temporary injunction is issued without a final determination of the rights of the parties, the enjoined party is deprived of dominion over …

Husband And Wife-Wife's Right To Recover For Loss Of "Consortium" Due To Injury To Husband From Wrongful Sale Of Liquor, William C. Whitehead

Michigan Law Review

Plaintiff sued for loss of her right of consortium occasioned by the illness and death of her husband as a result of a sale of liquor by defendant in violation of a state statute. Defendant demurred on the ground that there was no cause of action granted by the statute for damages flowing from such an illegal sale. Held, an action for injury to the wife's right of consortium was available at common law. Swanson v. Ball, (S. D. 1940) 290 N. W. 482.

Boundaries By Agreement And Acquiescence, Harold M. Street

Michigan Law Review

An accurate summation of the present-day status of the doctrines of boundaries by agreement and acquiescence is contained in the, following statement made by an eminent text writer: "There are, in this country, a great number of decisions bearing upon the effect of an agreement by adjoining owners as to the boundary line between their lands, or of their recognition of a certain line as the boundary without any express agreement in relation thereto. These decisions are frequently most unsatisfactory in their discussion of the principles involved, and, purporting, as they variously do, to be based on principles of agreement, …

Substance And Procedure In The Conflict Of Laws, Edgar H. Ailes

Michigan Law Review

It is perhaps the most inveterate doctrine of the conflict of laws that all questions of procedure in a given instance are governed by the lex fori, or the law of the court invoked, regardless of the law under which the substantive rights of the parties accrued. For seven centuries, at least, courts and lawyers have broadly stated or assumed to be axiomatic the rule that substantive rights are fixed and immutable whilst the procedural devices by which such rights may be vindicated and enforced depend solely upon the law of the forum.

Federal Courts - Rules Of Federal Procedure - Production Of Designated Documents And Things Under Rule 34, William C. Wetherbee Jr.

Michigan Law Review

Plaintiff sued for damages and loss of profits caused by the unlawful acts of the defendant beginning in January, 1937. Under rule 34 of the new federal rules the defendant moved that the court order the plaintiff to produce its books showing the company's commercial results for the period prior to January 1, 1936; its duplicate federal income tax returns for the years 1934 to 1938; and all copies of statements furnished to any bank or credit company over a period of some five years. Held, motion granted in regard to books of account and duplicate income tax returns …

Libel And Slander - Implied Representation That Plaintiff Consented To Write Her Love Story As Libel Per Se, Michigan Law Review

Michigan Law Review

Plaintiff brought an action for libel against defendant for publishing in its magazine a story, which it represented as being written by plaintiff, purporting to relate indiscreet intimacies between plaintiff and a certain man. Defendant admitted the false representation of authorship, but requested a directed verdict after submitting in evidence testimony given by plaintiff in a prior law suit, in which she was said to have admitted intimacies fully as capable of bringing her into disrepute as were those published by defendant. On refusal by the court to direct a verdict, defendant excepted and appealed on the ground that the …

Trust Mortgages - Effect Of Foreclosure Of Subsequent Mortgage As Prior Lien Under Subordination Agreement Of Which Bondholders Had No Knowledge, Rex B. Martin

Michigan Law Review

Plaintiff held bonds secured by a trust mortgage. The trustee, Moore, without the consent of all the bondholders, had agreed to subordinate the trust mortgage to a subsequent mortgage. Defendant, the assignee of the subsequent mortgagee, foreclosed its mortgage as a prior lien. Moore was properly served but did not appear, as no bondholder agreed to pay the costs of the litigation. In the present suit to invalidate the subordinating agreement and reinstate the trust mortgage as the prior lien, held, the judgment in the foreclosure action determined the issue of priority and was conclusive against all the bondholders. …

Walsh-Healey Public Contracts Act - Right Of Prospective Bidder To Question Wage Determination Of Secretary Of Labor, David Loeb

Michigan Law Review

Complainants, small steel companies in eastern Pennsylvania, Maryland and Connecticut, brought this action to enjoin the secretary of labor and others from applying the provisions of the Public Contracts Act, as construed, to the iron and steel industry. It was contended that the secretary's wage determination was the result of an erroneous interpretation of the word "locality" as included in the act. The district court dismissed the complaint. Upon appeal the Court of Appeals of the District of Columbia granted the injuction. On certiorari, held, reversed. The complainants have no standing in court to sue. Perkins v. Lukens Steel …

Costs - Assessment Of Court Costs Against An Agency Of The Federal Government, Walter Muller

Michigan Law Review

A complaint against defendant, filed in equity by the Reconstruction Finance Corporation, was dismissed without costs, the lower federal court being of opinion that it had no power to impose costs upon a governmental agency. The rule of court which bears on this point says, "costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law." Held, on appeal to the circuit court of appeals, the district court did have power to assess costs against the Reconstruction Finance Corporation. Reconstruction Finance Corp. v. J. G. Menihan Corp., (C. C. A. …

Corporations - Limitation Of Actions - Nature Of Directors' Statutory Liability For Illegal Loans To Stockholders, Oscar Freedenberg

Michigan Law Review

The creditors of a bankrupt corporation sued its directors under a New Jersey statute that made the directors liable for all corporate debts to the extent of loans illegally made to stockholders. The decision hinged on the nature of the directors' liability with respect to the New Jersey statute of limitations. The directors maintained that the action was either for a contractual debt or else for a penalty, and that in either case it was barred by limitations. Held, that the liability of the directors was neither for a simple debt nor for a penalty within the meaning of …

Public Officers - Federal Officer's Liability For Damages Done To Property Pursuant To Statutory Authorization, Jerome J. Dick

Michigan Law Review

The defendant, pursuant to a contract with the United States government for improving navigation on the Missouri River, built some structures in the bed of this navigable waterway which caused a shifting of the channel resulting in damage to the riparian lands of the plaintiff. Thereupon plaintiff sued for damages. In reversing the trial court, which had granted judgment for the plaintiff, the circuit court of appeals said that the action could be maintained against the defendant if there was a wrongful invasion of plaintiff's property rights; but held for defendant because the damage suffered by plaintiff was an incident …

The Powers Of A Court Of Equity In State Tax Litigation, Maurice S. Culp

Michigan Law Review

Hitherto a state taxpayer, otherwise meeting the jurisdictional requirements of a federal district court, could secure an injunction from such a court upon a showing that there was no adequate remedy at law in the federal district court, and this regardless of the legal or equitable remedies afforded by the state courts.

In view of this recent legislation, it becomes important to ascertain the new limitation upon the equity powers of the federal district courts in state tax litigation. Likewise, because of these new rigid limitations upon the jurisdiction of the federal courts, the attitude of the state courts of …

Physicians And Surgeons - Malpractice - Removal Of Swabs By Surgeon - Res Ipsa Loquitur, Michigan Law Review

Michigan Law Review

Defendant surgeon failed to remove a swab from deceased's body after a major abdominal operation, relying in part on the accuracy of the count made by the head theatre nurse, employed by the hospital in which the operation occurred. In a suit by the mother of deceased against defendant for his alleged negligence, held, the doctrine of res ipsa loquitur applies, necessitating an explanation by defendant, but it is for the jury to decide on the evidence in the entire case whether defendant's conduct constituted a breach of his duty to use due care in performing the operation. Mahon …

Public Utilities - Consumers' Actions To Enforce Performance Of Public Duties, Edmund R. Blaske

Michigan Law Review

The petitioner, suing on behalf of himself and ten thousand other consumers, sought to compel the defendant gas company to furnish gas in accordance with the terms of a rate ordinance. The defendant challenged the petitioner's right to sue, on the ground that statutes had conferred this right upon the city solicitor. Held, the statutes were not intended to abrogate a consumer's common-law right to compel a utility company to perform its public duty. Maxwell v. Ohio Fuel Gas Co., 61 Ohio App. 394, 22 N. E. (2d) 639 (1939).

Contracts - Vendor's Agreement Not To Compete - Construction Of The Areement, Michigan Law Review

Michigan Law Review

A South Carolina statute prohibited labor of employees in enumerated manufacturing and mercantile establishments for more than fifty-six hours per week or more than twelve hours in any one day. Plaintiffs were druggists who brought suit to restrain the commissioner of labor from enforcing the statute. A temporary restraining order was issued and the commissioner of labor appealed. Held, the statute was unconstitutional as in violation of the due process and equal protection clauses in both state and federal constitutions. Gasque, Inc. v. Nates, (S. C. 1939) 2 S. E. (2d) 36.

Practice And Procedure - General Verdict On Several Counts - Is New Trial Necessary When One Of Two Counts Is Unsupported By Evidence?, Edmund R. Blaske

Michigan Law Review

Plaintiff sued defendant to recover damages arising from personal injuries claimed to have been suffered by him while in the employ of defendant, who was not under the workmen's compensation statute. In the first count of his declaration plaintiff claimed that defendant did not furnish him a safe place in which to work, and in the second count that defendant set him at work on dangerous materials. The jury returned a verdict of "guilty on both counts" and assessed "total damages" at $998.71. The trial court, on a motion for judgment notwithstanding the verdict, ruled that as a matter of …

Corporations - Derivative Suits - Insolvency As A Bar, Edmund O'Hare

Michigan Law Review

Plaintiff, stockholder in defendant bank, brought a derivative suit against the bank's directors to recover moneys allegedly wrongfully appropriated by them from the bank's assets. Before the commencement of the suit the bank had become insolvent and was in the process of liquidation. Held, the directors' motion to dismiss should be granted, since a stockholder may not maintain an action to hold an insolvent corporation's directors liable for fraud or mismanagement unless it appears that he will be benefited by the relief demanded, and full recovery here would still leave an excess of liabilities over assets. Falvey v. Foreman-State …

Administrative Law - Labor Law - Federal Courts - Equity - Propriety Of Interrogatories Directed To The Members Of The National Labor Relations Board, Michigan Law Review

Michigan Law Review

The National Labor Relations Board brought a proceeding under section 10 of the National Labor Relations Act for the enforcement of an order to cease certain unfair labor practices, its petition stating that the board had considered the case before it and upon all the testimony and evidence made its findings of fact and issued its order. The answer alleged that the board did not consider the evidence but referred it to others for suggested findings of fact, and that with no opportunity to respondent to know of or criticize the suggestions they were adopted by the board without further …

Corporations - Stockholders' Suits - Federal Courts -Requirement Of Stock Ownership At The Time Of The Injury Complained Of, Robert E. Sipes

Michigan Law Review

When necessary to protect the interest of a stockholder, a court of equity will entertain an action by the stockholder to enforce a right belonging to the corporation. The suit is a derivative one, the corporation being the party primarily injured and the immediate beneficiary of the proceeds of any judgment. The basis for the suit has been explained in a number of ways. It has been held that in a proper case equity will disregard the corporate fiction and allow the derivative suit in order to protect the right which beneficially belongs to the stockholder although nominally to the …

Corporations - Conditions Under Which Settlement Of Corporate Claims Will Not Prevent A Stockholder's Derivative Suit On Such Claims, John M. Ulman

Michigan Law Review

In the recent case of United States Lines, Inc. v. United States Lines Co. the plaintiff was a minority stockholder in United States Lines, Inc., whose only asset was a minority stock interest in the United States Lines Company. A majority of the stock in both companies was owned by the International Mercantile Marine Company. An action originally brought by the United States Lines, Inc., but settled out of court, was sought to be continued by the plaintiff, who alleged: (1) that the Marine Company and its subsidiaries had entered into fraudulent contracts with the United States Lines Company and …

Evidence - Mailing - Inference Of Mailing Raised Through Proof Of Office Custom, Charles H. Haines

Michigan Law Review

In a suit on an accident insurance policy the defense of the insurer was that timely notice had been given of the revocation of the renewal privilege. At the trial, in order to raise the presumption that the notice was delivered to the insured, proof was offered that the letter was dictated and addressed in the large home office and given to the mail boy for posting according to the office custom. The letter was traced no further. On this evidence the court allowed the jury to find that the notice had been received. Plaintiff appealed. Held, reversed. The …

The Measure Of Recovery In Actions For The Infringement Of Copyright, Julian Caplan

Michigan Law Review

Since the present federal copyright statute was enacted in 1909, and especially quite recently, there have been repeated attempts at drastic modification of the law. Certain groups contend that the present statutory provisions are not of sufficient protection to the copyright proprietor, whereas other groups contend that the extent of the protection is entirely unwarranted. One of the chief phases of controversy has involved the measure of recovery in suits for infringement. The issue is of fundamental importance, since the measure of damages determines to a large extent how effective the other provisions of the statute will be. Whether, under …

A Warning Signal For Municipal Bondholders: Some Implications Of Erie Railroad V. Tompkins, Irvin Long

Michigan Law Review

That branch of municipal bond litigation in which the character and validity of the obligations is involved has usually been conducted in the federal courts. Bondholders pressing for payment of their defaulted bonds usually are nonresidents of the state where the city, county or other defaulting municipality is located. Varying and contradictory state court decisions taught them that no settled rule of decision in the state courts could be expected. The arguments of their counsel, which many of the earlier volumes of the Supreme Court reports preserve, show that they distrusted a judiciary elected for short terms, as was the …