учебный год 2023 / jurisprudence

1212 MICHIGANLAW REVIEW [Vol. 48

the second appeal in the principalcase, the court further holds that not to permit a finding of excusable neglect where the 'local agent,"as defined by statute, has

If this were so, it would have been logical to find that the original service upon the agent had not satisfieddue processeither, since the criterionfor determining the validity of service upon any given agent is whether that agent stands in such

a representativeposition to the corporationthat notice to him would reasonably be calculated to reach the corporation.7If such service satisfied due process re- quirements,8then the fact that the corporationdid not actually receive the notice should be immaterialinsofar as due processis concerned. Thus, it would seem that the courton this appealis actuallyfinding a lack of due processin the statutory definitionof "localagent." Once the trialcourthas properlyacquiredjurisdiction,9 its finding as to excusable neglect would not be a matter of due process at all. In approvingminimum requirementsof proceduraldue process in statutes pro- viding for serviceof summons,it has been recognizedthat there will be hardship in some cases, and a remedial procedurehas been provided. But, it is doubtful whether the use or non-use of this procedureconcerns due process. It is simply

finding and relieving hardship on the facts before the court.

LloydJ. Tyler,Jr.

JURISPRUDENCE-STARE DECISIS - VARYING FORCE OF PRECEDENT- Plaintiff passengerbroughtan actionagainstdefendant driverto recoverfor injuries arising from the latter'snegligence in operating an automobile while the parties were engaged in a joint enterprise. Defendant contended that his own negligence should be imputed to the plaintiff to barrecovery. Defendant offeredas authority a previous decision by the same court1in which a passenger,a joint enterpriser with the driver,sued both the driver and the absentee owner of the automobile. There the court dismissed the action against both defendants on the ground of

But the reasoning and authority offered by the court were

6 Principalcase at 41. The court'sargumentis supportedby cases concerninglack of due processin serviceon a public officialas agent, without notice to the corporation.See

Imposedby JudicialConstructionof the Due ProcessClause,"20 CH-KENTL. REV.287 at 311-14 (1942); Gulp, "ConstitutionalProblemsArisingFromServiceof Processon Foreign

Corporations,"19 MINN.L. REV.375 at 383 (1935); 113 A.L.R. 9 at 53, 83 (1938); ConnecticutMutual Life Ins. Co. v. Spratley,172 U.S. 602, 19 S.Ct. 308 (1899); Farmers

and MerchantsBank of Catlettburg,Kentuckyv. FederalReserveBank of Cleveland,Ohio, (D.C. Ky. 1922) 286 F. 566; Frawley, Bundy & Wilcox v. Pennsylvania Casualty Co., (C.C. Pa. 1903) 124 F. 259; Atchison, T. & S.F. Ry. Co., (D.C. Tex. 1918) 248 F. 970 at 980.

8 The North Carolinastatutesatisfiesdue processwhen the "localagent"is representative. Steele v. Western Union Telegraph Co., 206 N.C. 220, 173 S.E. 583 (1934); McDonald Service Co. v. Peoples National Bank of Rock Hill, South Carolina,218 N.C.

533, 11 S.E. (2d) 556 (1940).

9Iwer Wold v. J. B. Colt Co., 102 Minn. 386, 114 N.W. 243 (1907); State ex rel. Bond & Goodwin & Tucker, Inc. v. SuperiorCourt, 289 U.S. 361, 53 S.Ct. 624 (1933).

1Frisorgerv. Shepse, 251 Mich. 121, 230 N.W. 926 (1930).

1950] RECENT DECISIONS 1213

appropriateonly to the causeof actionagainstthe absenteeowner.Withoutany

On appealfroma dismissalof the plaintiff'sdeclaration,held, reversed.When

nordiscussedin the opinion,the caseis not bindingas a precedent.Bostromv.

as a rule of law must examinenumerousfactorsinheringin the previouscase in orderto assayits forcefulness.If the casewas decidedin a supremecourt,it

as in the principalcase,a courtis askedto overrulea priordecision,it will be

dissent.8Recentlydecidedcasesdo not speakwith the samedegreeof authority

case,courtsdonot feelboundby a holdingwherethe particularpoint,necessarily

standably,judgesfrequentlyattachaddedweight to the opinionsdeliveredby

law in question. One of the primarypolicy factorsunderlyingstaredecisis-

mercialtransactionsare involved.ll On the other hand, certainrules of law

Mich. 9, 244 N.W. 211 (1932), wherean agentwas held liable to his principalfor damagesresultingto the principalfromthe agent'snegligentperformanceof his duties as such.

8 Von Moschzisker,"StareDecisis in Courtsof Last Resort,"37 HARV.L. REV.409,

415(1924).

9WAMBAUGH,THE STUDYOFCASES,2d ed., 56 (1894). 10Accord: SALMOND,JURISPRUDENCE, 10th ed., 180 (1947).

11New YorkLife Ins. Co. v. Boling, 177 Miss. 172, 169 S. 882 (1936); LibertyNat.