Torts Commons^™

Rights Of Defrauded Quiz Show Contestants, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Book Reviews, Robert B. Looper, Ralph Slovenko

Vanderbilt Law Review

Cases and Materials on Restitution By John W. Wade Brooklyn: The Foundation Press, Inc., 1958. Pp. xxxi, 903. $11.00.

reviewer: Robert B. Looper

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Equal Justice for the Accused By a Special Committee of The Association of the Bar of the City of New York and The National Legal Aid Association New York: Doubleday & Co., 1959. Pp. 144. $3.50.

reviewer: Ralph Slovenko

Liability Of Funeral Directors For Negligence, Edgar E. Smith

Vanderbilt Law Review

Funeral directing cannot be classed absolutely as a "profession."'On the contrary, the funeral director's principal concern probably is the sale of caskets and burial supplies, thus making him a "merchant"or "trader." However, for purposes of rendering services in connection with the care and burial of the dead as well as in accommodating the family and friends of the deceased, the funeral director is considered a "professional man." It is the latter capacity which is under consideration here. It is inconsequential for legal purposes whether a mortician is referred to as a "funeral director," an "embalmer," or an "undertaker." An embalmer …

Abstracts Of Recent Cases, M. D. W. Jr.

West Virginia Law Review

No abstract provided.

Professional Negligence Liability Of Public Accountants, Carl S. Hawkins

Vanderbilt Law Review

At least since 1905, in this country, accountants have been recognized as "a skilled professional class ... subject generally to the same rules of liability for negligence in the practice of their profession as are members of other skilled professions."' The question, then, is not whether the usual concepts of professional negligence apply to accountants, but how. What situations have produced malpractice litigation? What are the specific practices or omissions which have resulted in liability? And what are the limits of liability? Like other professionals, the accountant usually gets into the position where he must exercise his professional skill as …

Exculpatory Clauses In Leases, Margaret Mazza

Cleveland State Law Review

Exculpatory clauses in leases are used in order to free the lessor from liability for his future acts of negligence. For the purpose of this article we will assume that there was a legal duty resting upon the party asserting the clause as a defense. The validity of such a provision then requires a choice between two conflicting policies: (1) a person should be liable for the negligent breach of his duty; (2) a person should have the right to contract freely. The common law developed the rights and duties of the parties in certain relations and determined that damages …

Insurance - Recovery - Delay Of Insurance Company In Rejecting Application For Insurance, Harry D. Krause S.Ed.

Michigan Law Review

Plaintiff, designated as beneficiary by deceased life insurance applicant, sued defendant life insurance company in assumpsit. Deceased, a combat pilot in the Korean War, had applied for one of defendant's policies, passed the medical examination, and made several premium payments on the policy. After the applicant was killed in combat defendant refused payment, contending that it had never accepted the risk but that it had responded to the application with a counter offer containing an aviation waiver. Because of ·the applicant's frequent change of address and his early death this proposal had never been communicated to him. On appeal from …

Contracts - Damages - Punitive Damages Awarded For Breach Accompanied By Fraudulent Act, Theodore G. Koerner

Michigan Law Review

Defendants contracted to purchase a crop of alfalfa from plaintiff, harvesting and processing to be done by defendants and payment to be ascertained according to the processed weight of the alfalfa. When defendants harvested the entire crop but failed to pay for the major part of it, plaintiff brought action for breach of contract. In addition to the non-payment, plaintiff alleged fraud on defendants' part in falsifying weight records and in otherwise scheming to cheat and defraud him. On defendants' appeal from a judgment including both compensatory and punitive damages, held, affirmed. Although punitive damages are not ordinarily recoverable …

Avoidance Of Personal Injury Release For Mutual Mistake Of Fact, Gerald Carlisle

Cleveland State Law Review

The instrument termed a release is a contract that clearly portrays a meeting of the minds. It explicitly states a release from liability for known, unknown, present, and future injuries. In attempting to avoid such a release the party ordinarily may allege the grounds he may have under the law of contracts. In personal injury releases, these grounds usually take the form of charges of fraud or misrepresentation, coercion, inequitable circumstances, mutual mistake of law, unilateral mistake of fact, inadequate consideration, or mutual mistake of fact. We shall deal here with the defense of mutual mistake.

Limitations Of Action - Applicable Statute - Third-Party Injury Provision Agreed To By Contractor Subject To Contract Limitation Only, Walter L. Adams

Michigan Law Review

More than two years following an accident in which they sustained personal injuries when their car fell into defendant's excavation, plaintiffs filed a diversity action in a federal court stating inter alia a cause of action based upon a third-party beneficiary contract entered into by defendant street contractor and the City of Philadelphia for which he was working. The contract provided in essence that defendant alone would be liable for damage sustained by any third party "irrespective of whether or not such injuries ... be due to negligence or the inherent nature of the work." The district court dismissed the …

Contracts -- 1957 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Breach of contract to publish advertisement--certainty of lost anticipated profits--nominal damages: The rule of "certainty" with respect to awarding damages for a breach of contract is simply a standard requiring a reasonable degree of persuasiveness in the proof of the fact of damage and of the amount of damage.' Through the use of the standard of certainty, the court is enabled to insist that the jury must have factual data--something more than guesswork--to guide themin fixing the award. Loss of commercial profits, claimed as damages for breach of contract, has become the principal field for the application of the standard …

Agency - Liability Of Principal For Termination Of Agents Employment, William G. Mateer S.Ed.

Michigan Law Review

In the summer of 1949, appellant entered into an oral contract for an indefinite time with the appellee whereby the former was granted an exclusive wholesale distributorship of appellee's farm and garden equipment. A four-year period followed in which appellant increased the number of dealers in appellee's product from four or five in 1949 to over one hundred in 1953. In the latter part of 1952 appellant contemplated an enlargement of its facilities which would require it to enter upon a fifteen-year lease. Since the lessor desired some assurances as to the duration of appellant's franchise, appellant wrote to appellee …

Corporations - Officers And Directors - Liability For Inducing A Corporation To Breach Its Contracts, William H. Leighner

Michigan Law Review

Plaintiff real estate company brought suit against the directors of a corporation and other third persons for an alleged conspiracy to induce the corporation to breach its contract with plaintiff. The complaint alleged that the corporation had entered into an agreement whereby plaintiff was to procure a purchaser for certain premises owned by the corporation and that plaintiff had found a purchaser; that before a written offer could be obtained, the corporation contracted to sell to another broker who was to be used as a conduit to transfer title to the purchaser found by the plaintiff, and who was to …

Master And Servant - Independent Contractor - Inherent Danger Exception, Jerome K. Walsh, Jr. S.Ed.

Michigan Law Review

Defendant was a home-owner whose home was fumigated by an independent contractor. Plaintiff was the administrator of the estate of a water softener service man, who entered the home and was overcome by the cyanide gas used in the operation. It was agreed by the parties that the contractor was negligent in failing to lock all entrances to the home, and in not posting warnings at all entrances. Plaintiffs request to charge the jury that the work was inherently dangerous was refused. The court instructed the jury to determine whether or not the defendant had used due care in selecting …

Family Responsibility In Tort, William J. Harbison

Vanderbilt Law Review

At common law an unmarried woman occupied no special status as far as tort liability was concerned, and the same rules and standards of responsibility applied to her as to society generally. Since marriage imposed upon a woman a very extensive disability, however, there developed a number of special rules concerning tort responsibility of the married woman.

Marriage did not impose upon the wife any special or peculiar liability for wrongful acts committed by her husband at common law, and, except in certain instances hereafter noted, she is not thus liable today. It is true that since the enactment of …

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).

Regulation Of Business - Fair Trade Acts - Availability Of Injunction Against Nonsigner's Inducing Breach Of Fair Trade Agreement, William R. Jentes S.Ed.

Michigan Law Review

Plaintiff manufacturer had extensive agreements with its distributors under the Michigan Fair Trade Act. The circuit court enjoined the defendant, who was not a party to any of these contracts, from inducing the plaintiff's distributors to sell products to the defendant below the agreed fair trade price. On appeal, held, reversed, three justices dissenting. Defendant is privileged to induce the breach of a fair trade agreement which restricts his business opportunities and is contrary to the state's policy against the enforcement of the nonsigner provision of its fair trade law. Argus Cameras, Inc. v. Hall of Distributors, Inc., …

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 …

Corporations - Stockholders - Effect Of State Constitutional Provisions On Liabilty To Creditors For Unpaid Subscriptions, Douglas Peck S.Ed.

Michigan Law Review

Basset and Company, an Oklahoma corporation, issued stock to defendant for which defendant never paid. The sum due was carried on the corporate books as "subscriptions receivable." The corporation became bankrupt and the trustee brought suit in the federal district court to recover the amount due on the subscriptions. Held, judgment for the defendant. Under the Oklahoma Constitution, where stock is issued for consideration which is less than par value, the issue is void. The stock certificate cannot serve as a consideration to support the would-be stockholder's promise to pay for the stock, and no liability attaches to the …

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 …

Sales - Conditional Sales - Punitive Damages For Forcible Repossession Of Chattel, William G. Cloon, Jr. S.Ed.

Michigan Law Review

Plaintiff purchased a truck under a conditional sales contract which was assigned to the defendant finance company. He drove the truck to the place of business of the defendant to adjust differences between the two parties, but when he attempted to leave after no agreement had been reached, he discovered that the keys had been removed from the truck. When informed that the truck had been repossessed, the plaintiff produced another set of keys but was unable to leave with the truck. The testimony of the plaintiff that an agent of the defendant seized his hand to prevent the unlocking …

Contracts And Torts Should Be Merged, Thomas A. Cowan

Journal of Legal Education

No abstract provided.

Taft-Hartley Sections 301 And 303 Procedural Aspects, Joseph F. Dirisio, Joseph Martin Jr.

Vanderbilt Law Review

The motives and purposes behind the binate Sections 301 and 303, no less than other sections of the Taft-Hartley Act,' are mixed and ambiguous. Foremost, however, seems the notion that Congress intended to create new federal rights, contract and tort, enforceable nationally in a federal forum. In broad terms, where the required relationship to interstate commerce exists, Section 301 permits suits by either employers or unions for violation of collective bargaining agreements; Section 303 permits those injured by certain boycotts and unlawful combinations to bring suit-- in both cases, the forum provided is the district court of the United States. …

Admiralty - Right To Jury Trial In Certain Cases On Great Lakes - Maintenance And Cure Not Contract Or Tort Matter, Richard B. Barnett S.Ed..

Michigan Law Review

Libelant brought an action for maintenance and cure on the admiralty side of a federal district court in Illinois. He requested a jury trial, relying on the Act of February 20, 1845, which provides that in certain admiralty and maritime cases arising on the Great Lakes relating to any matter of contract or tort, trial shall be by jury on the demand of either party. The trial court heard the case without a jury and dismissed the libel on the merits. The court of appeals held, on appeal, that maintenance and cure was a matter of ancient and established …

Negligence - Proving Inviter's Breach Of Duty By Circumstantial Evidence, Charles E. Oldfather S.Ed.

Michigan Law Review

Plaintiff brought a negligence action for personal injuries suffered when she slipped on a spot of grease in the driveway of defendant's railroad station. The evidence showed that the spot was at least one foot square and was covered with dust and dirt so that it resembled in color and texture the rest of the pavement. The evidence also indicated that vehicles often drove through and parked in the drive, and that there were no marks on the spot other than a deep skid mark left by plaintiff's heel. The trial court allowed the jury to determine from this evidence …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Contracts--Ceiling Price Legislation--Effect upon Performance

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Evidence--Declarations against Interest--Third-Party Confessions

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Family Law--Loss of Consortium of the Parent--Right of Child to Recover Against a Negligent Defendant

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Federal Procedure--Statutory Construction--Meaning of "Mentally Incompetent"

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Income Taxation--Surrender of Lease--Capital Gain to Lessee

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Income Taxation--Taxable Stock Dividend--Treasury Stock Held for Investment

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Judgment--Suit to Vacate--Insufficient Allegations of Cruelty Void Divorce Decree

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Labor Law--Filing Requirements--Noncompliance at Time Charges Filed

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Municipal Corporations--Liability for Negligence--Operation of Swimming Pool for Profit

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Process--Constructive Service--Tort Action Arising Without State

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Torts--Res Ipsa Loquitur--Application To Disappearing Airplane

Recovery Of Damages For Mental Anguish Alone In Breach Of Contract Actions, Law Review Staff

Vanderbilt Law Review

Before the late 1800's it undoubtedly would have been contrary to law to assert that damages for mental suffering might be allowed in breach of contract actions. However, near the beginning of the Nineteenth Century a few courts made what was considered to be a serious departure from the common law and allowed such damages in certain types of cases. The passing of years has brought about considerable, though incomplete, development in this phase of the law. Not only have legal writers failed to give this development the comment which its significance warrants, but the courts have failed to indicate …

Book Reviews, Julius Stone, Harold Gill Reuschlein, Elvin R. Latty, Pendleton Howard, Hardy C. Dillard, Louis Loss, Jerre Stockton Williams, Paul Sayre, Robert Kingsley, Warren M. Ballard, Mason Ladd, Robert Braucher, Robert B. Mckay, Robert H. Wettach

Journal of Legal Education

No abstract provided.

Torts--Inducing Breach Of Contract--Attorney-Client Contingent Fee Contract, Richard W. Pogue

Michigan Law Review

Plaintiff, a practicing attorney, undertook on a contingent fee basis to represent a husband and wife in separate claims for damages alleged to have been suffered by them through the negligence of the driver of a motor vehicle. The driver was insured under a policy issued by defendant. Defendant had notice of the contract. After plaintiff had started suit on the damage claim and as the case was about to be tried, defendant's adjusters, without knowledge on the plaintiff's part, allegedly induced the clients to discharge the plaintiff (and "thereby break their contingent fee contract with him") and subsequently to …