Law Commons^™

Criminal Law And Procedure--1959 Tennessee Survey, Robert E. Kendrick

Vanderbilt Law Review

Conspiracy--Cline v. State was an appeal from a conviction of a conspiracy to dynamite and destroy a public school building in Clinton, Tennessee, in violation of a statute making it a felony for two or more persons to agree "to commit an illegal act capable of producing conditions destructive to life or property.. ." by possessing, transporting or using explosives. Three men, D1, D2 and D3, had been indicated; but, before defendants were put to trial, the state entered a "nolle prosequi" against D1, who became a state's witness. Afterwards, D2 was acquitted in the same trial in which D3, …

Domestic Relations--1959 Tennessee Survey, William J. Harbison

Vanderbilt Law Review

In the case of In re Matthews, the supreme court once more was called upon to construe the adoption statutes and to determine the relationship between the juvenile court and a court in which adoption proceedings are pending. In this same case, the court had earlier held that jurisdiction of juvenile courts to declare children abandoned is not exclusive and that in adoption proceedings a chancery court may determine whether there has been an abandonment of the child proposed to be adopted. The supreme court had remanded the case to the chancery court. In that court, the Department of Public …

Insurance--1959 Tennessee Survey, William R. Andersen

Vanderbilt Law Review

What is the meaning of the term "actual cash value" in the standard fire policy? The middle section of the court of appeals, following a prior Tennessee case and the weight of authority, held that the phrase is synonomous with "market value" only where the goods are readily replaceable in a current market. Where there is no market, or where the market value is inadequate to properly indemnify the insured, "actual cash value" means the "'value to the owner' or the loss he suffers in being deprived of the goods." Since the goods involved in this case were personal effects, …

Labor Law And Workmen's Compensation--1959 Tennessee Survey, Paul H. Sanders, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

What is the meaning of the term "actual cash value" in the standard fire policy? The middle section of the court of appeals, following a prior Tennessee case and the weight of authority, held that the phrase is synonomous with "market value" only where the goods are readily replaceable in a current market. Where there is no market, or where the market value is inadequate to properly indemnify the insured, "actual cash value" means the "'value to the owner' or the loss he suffers in being deprived of the goods." Since the goods involved in this case were personal effects, …

Local Government Law--1959 Tennessee Survey, A. E. Ryman, Jr.

Vanderbilt Law Review

Local government law is primarily made up of special exceptions to and provisions concerning laws of general application, both substantive and procedural. Starting with that premise, this survey is classified into two basic subsections: exceptions resulting from relations between sovereign agents, and exceptions resulting from relations between a sovereign agent and private parties. Because of a trend believed to be of significance with regard to other areas of law, the section on financial policy is considered separately as another subdivision herein.

Satisfactory review of all of the substantive legal subjects touched upon by decisions and legislation which involved local agents …

Personal Property And Sales--1959 Tennessee Survey, Claude E. Bankester

Vanderbilt Law Review

Damage to Chattel in Possession of Mortgagor or Conditional Vendee.--When a chattel is mortgaged or sold pursuant to a conditional sales contract and is subsequently damaged by a third party while in possession of the mortgagor or conditional vendee, it is generally agreed that either party to the chattel mortgage' or conditional sales contract has a sufficient interest in the chattel to allow him to maintain an action against the wrongdoer. In Ellis v. Snell, the court allowed recovery by the mortgagor for the full amount of damage to the'mortgaged automobile, even though he was in default on the mortgage …

Real Property--1959 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

Future Interests.-The creation of divided interests in real property always carries with it problems in controlling the use and man- agement by the owner of the possessory interest. One of the most difficult problems in future interests is how to adjust the relation between the holder of a present possessory interest and the holder of a future interest in the same parcel of land. In resolving such problems many courts are influenced primarily by the nature (classification) of the future interest involved and have worked out with some degree of certainty the distribution of benefits and burdens in the simple …

Restitution--1959 Tennessee Survey, William Wicker

Vanderbilt Law Review

A defrauded party to a contract may ask for the alternative right of cancellation of the contract and restitution of the consideration, rather than a right to damages for being led into the fraudulent transaction. This restitutionary remedy is the right of the defrauded party to be restored to the situation which he occupied prior to the fraudulent transaction.

In Bluff City Company v. Davis, seller falsely represented that an automobile was new, and buyer relied on that representation. Within a reasonable time after buyer learned that he had bought a used automobile, he offered to return it. It was …

State And Local Taxation, Paul J. Hartman

Vanderbilt Law Review

That the field of state and local taxation is bedoming much more important, as well as increasingly active, is shown by a number of recent significant major developments that are of interest and concern to taxpayers and their counsel everywhere. Ten state tax cases are already on the United States Supreme Court docket for consideration during the Term commencing October 5, 1959.' During the past term at least a half dozen important state tax cases were decided by the Supreme Court, including the epochal Northwestern-Stockham decision, which threw much of the legal profession, as well as many taxpayers, into a …

Torts--1959 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, a considerable number of cases involving tort law were decided during the survey period. One of the decisions involves a point of first impression in this state, the matter of whether an unborn child comes within the scope of the wrongful death statute. A number of the decisions serve to clarify existing rules, or to carry these rules a step further in applying them to new situations. There were also some significant statutory developments, including the changes in the Railroad Precautions Act.

Interstate Compacts As A Device To Develop And Regulate Atomic Energy, W. Harold Bigham

Vanderbilt Law Review

When the Congress adopted the Atomic Energy Act of 1954, releasing the atom from federal monopoly and inviting the division of regulatory and control functions between the federal government and the states, the gates were opened for large-scale participation by private industry in the new technology. It was natural, therefore, that the states should begin to view with awakened interest the role which they are to play in the development and regulation of this new source of energy. However amorphous the role of the states may be as yet, some preparation is being made to accept the responsibilities which will …

Insuring Against Medical Professional Liability, Bernard D. Hirsh

Vanderbilt Law Review

The purpose of this article is to analyze the protection provided in medical professional liability policies. Part I consists of a discussion of some of the factors involved in the purchase of malpractice insurance and an examination of the principal insuring agreements, exclusions, and conditions stated in the standard policy. Part II is a summary of the results of a questionnaire sent by the Law Division of the American Medical Association to insurance companies to determine their opinions regarding insurance coverage in a series of hypothetical cases.

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONFLICT OF LAWS--JURISDICTION--RESIDENCE AS A JURISDICTIONAL BASIS FOR DIVORCE

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CORPORATIONS-SECURITIES ACTS--DISTINCTION BETWEEN "CLASS" AND "SERIES" UNDER SECTION 16(b) OF SECURITIES EXCHANGE ACT

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CORPORATIONS-STOCK DIVIDENDS-INCONSISTENCY BETWEEN TRADITIONAL AND MODERN CONCEPTS OF STOCK DIVIDENDS

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CRIMINAL PROCEDURE-EVIDENCE-STATUTORY LIMITATION OF JENCKS DECISION

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EVIDENCE--SEARCHES AND SEIZURES--INADMISSIBILITY IN FEDERAL COURT OF EVIDENCE OBTAINED THROUGH AN UNREASONABLE SEARCH BY STATE OFFICERS

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EVIDENCE--WITNESSES-ABILITY OF ONE SPOUSE TO TESTIFY AGAINST THE OTHER IN FEDERAL CRIMINAL PROCEEDINGS

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HABEAS CORPUS--FEDERAL COURT REMAND OF PETITIONER TO STATE COURT FOR NEW TRIAL

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MUNICIPAL CORPORATIONS--TORT LIABILITY--DUTY TOPROVIDE POLICE PROTECTION TO INFORMERS

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TAXATION--ESTATE TREASURY REGULATIONS ON GOVERNMENT …

The Care Required Of Medical Practitioners, Allan H. Mccoid

Vanderbilt Law Review

"Into whatever houses I enter, I will go into them for the benefit of the sick, and will abstain from every voluntary act of mischief and corruption." -Oath of Hippocrates.

These words, allegedly formulated by the "Father of Medicine,"define the duties which physicians and surgeons over the years have sworn to perform toward those whom they undertake to treat. Like many oaths, however, the noble sentiments of the Greek physician are not sufficient to provide protection for the public. This is evidenced by the fact that over the twenty year period from 1935 to 1955, according to a survey made …

The Attorney's Liability For Negligence, John W. Wade

Vanderbilt Law Review

The concept of negligence was late in developing in the common law. Perhaps the first group of cases in which the idea began to take shape involved the liability of persons who professed competence in certain callings.' One of these "callings" was that of the attorney,and cases as early as the middle of the eighteenth century hold an attorney liable on this basis.

Liability Of An Insurance Agent Or Broker In Procuring Or Maintaining Insurance For An Owner, Jack D. Mcneil

Vanderbilt Law Review

The insurance agent or broker is vulnerable to legal attack on several grounds and may incur liability on a variety of theories ranging from breach of implied warranty to fraudulent misrepresentation. The basic fact situation here discussed arises when one desires insurance and the agent sought for the purpose of procuring that insurance fails to do so through a lack of reasonable care. The nature and origin of the duty owed by such an agent or broker, the various instances in which liability arises, the measure and amount of damages collectible, and the defenses available to the agent are discussed.

Loss Of Citizenship -- Statutory Expatriation, David E. Nelson Jr.

Vanderbilt Law Review

There is no provision in the United States Constitution which expressly gives or denies Congress a right to deprive a person of, or prescribe a method whereby a person may lose, his citizenship. Yet in the Nationality Act of 1940 Congress provided for the involuntary expatriation of an American citizen upon the intentional commission of one or more of several specified acts. In 1957 three cases involving this statute reached the Supreme Court of the United States. The constitutionality of the section providing for loss of citizenship by voting in a foreign election was upheld; the one providing for loss …

Professional Negligence Of Architects And Engineers, George M. Bell

Vanderbilt Law Review

Our courts have erected a protective legal structure around architects and engineers which has been sufficient, at least in the past, to shelter members of those two professions from any extensive liability for their misconduct. However, it would seem that this legal structure was erected on an unfirm foundation and cracks are appearing in the walls so that occasionally architects and engineers have been held legally responsible for their errors. Such responsibility has in general been confined to a liability to the person hiring the professional service. As yet there has been no case which has ruled the architect or …

Professional Negligence -- Some General Comments, William J. Curran

Vanderbilt Law Review

An examination of the tort liability of professional people necessarily involves two areas: (a) an examination of fact situations peculiar to the activities of the various professions, and (b) an analysis of the theoretical basis for professional liability as distinguished, if at all, from any other form of tort liability. In the articles to follow in this symposium, there is a concentration on a particular professional group in addressing each of these questions. In this introductory comment, therefore, an effort will be made to examine some of the general principles of professional liability which may be applicable in many areas.

Developments In The English Law Of Medical Liability, John G. Fleming

Vanderbilt Law Review

Throughout the common law world, as indeed elsewhere, our generation has been witness to an unmistakable, if not always consistent, trend of increasingly disassociating the administration of accident law from the philosophy of individual fault in favor of the collectivist principle of loss distribution, as evidenced in the movement towards stricter liability in litigation areas with a background of liability insurance. However debatable the measure of this reorientation in the United States,' it has taken very large strides in the several jurisdictions of the British Commonwealth where a pattern of loss allocation is now visibly emerging which, in many respects, …

Modern Techniques In The Preparation And Trial Of A Medical Malpractice Suit, Fitz-Gerald Ames Sr

Vanderbilt Law Review

Though it is true that in malpractice suits more than in any other type of litigation, the plaintiff must have a strong case on the merits, it is equally important and almost a necessity in most malpractice cases that patient's counsel carefully and thoroughly condition the jurors' minds from the very outset to a psychological acceptance of this type of litigation. Far too many veniremen, before they have been selected as trial jurors in a malpractice suit, have the attitude that (1) a "malpractice" suit connotes conduct either criminal, quasi-criminal or unethical on the part of the doctor or hospital; …

Liability For Negligence Of Pharmacists, George S. King

Vanderbilt Law Review

The purpose of this article is to discuss the liability of pharmacists for professional negligence.' Thus it will be limited to that conduct which arises out of their professional activity and is to be distinguished from liability which may arise out of their activity as a storekeeper or a druggist, using the latter term in the general sense to include all those who operate a drug store or in any fashion engage in the business of supplying drugs, whether licensed pharmacists or not. For example, the pharmaceutical manufacturer may well be classed as a druggist, but his legal responsibilities would …

Tort Liability Of Teachers, Paul O. Proehl

Vanderbilt Law Review

The tort liability of teacher qua teacher encompasses a rather narrow ambit and is largely restricted to cases in which it is alleged that the right of the teacher to enforce discipline has been abused and that the teacher is therefore liable in damages for the commission of an intentional tort. The question in such a case is whether the teacher has exceeded, or acted outside the scope of, his privilege.A particular common law concept was developed very early here defining the privilege as one deriving from the fact that the teacher stood in loco parentis,' and the privilege still …

Canons 28 And 29 -- An Appraisal, Henry S. Drinker

Vanderbilt Law Review

How far should Canons 28 and 29 of the ABA's Canons of Ethics deter a lawyer from taking or participating in proceedings against a fellow lawyer in a matter involving the propriety of his professional conduct, by reason of the fact that such proceedings may injure such lawyer's professional reputation. The Canons do not clearly or fully cover this problem...

The solution of these problems related to participating in litigation against a fellow lawyer depends in each case to a great extent on the accompanying circumstances. Professional courtesy should not be distorted or overemphasized merely to avoid a disagreeable or …

Professional Liability Of Abstracters, Thomas G. Roady, Jr.

Vanderbilt Law Review

One of the most vigorous rules in the law of conveyancing is that a vendee of real estate assumes the risk of all defects in title discovered after delivery of the deed. In short, the doctrine of caveat emptor applies with full force to the purchaser and to protect himself as fully as possible he must insist that the transaction proceed in such a manner as to give him recourse against someone should he sustain a loss by reason of the title risk taken or he must proceed in a manner that will eliminate (or at least minimize) the risks …

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 …

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 …

Rights And Remedies Of Members In Internal Union Controversies In The Southern Jurisdictions, Fred Graham

Vanderbilt Law Review

There is a traditional reluctance on the part of judges to involve the courts in the internal affairs of labor unions. Consequently, a judge will often pause in the course of an opinion adjudicating a union controversy with an aside to the effect that:

"Of course, it is well understood that courts are indisposed to interfere with the internal management of an unincorporated, voluntary association as is here involved. We have held that the right of a voluntary association to interpret and administer its own rules and regulations is as sacred as the right to make them, and there is …

State Taxation Of Interstate Commerce, Gilbert S. Merritt Jr.

Vanderbilt Law Review

In Northwestern States Portland Cement Co. v. Minnesota,' the Supreme Court recently granted states the broad power to tax earnings of out-of-state corporations from business done within each state. Justice Clark, speaking for the majority, laid down the doctrine that "the entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the States for tax purposes by formulas utilizing in-state aspects of inter-state affairs." The purpose of this note is to analyze the doctrine, its background and possible economic consequences.

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