Law Commons^™

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--Implied Warranties Governed by Law of the State Most Closely Associated with the Contract

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Constitutional Law--Due Process--Absolute Statutory Prohibition of the Use of Contraceptives Not a Violation of Rights Secured by Fourteenth Amendment

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Constitutional Law--Freedoms of Speech and Press--Ordinance Prohibiting Distribution of Handbills Without Identification of Author Violates Fourteenth Amendment

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Contracts--Termination--Employment for Indefinite Duration not Terminable for Refusal of Employee to Commit Perjury

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Evidence--Federal Courts--Evidence Obtained by State Officers Through Unreasonable Search and Seizure Inadmissible in Federal Courts

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Judgments--Limitation of Overruling Decision to Parties Before the Court and to Causes of …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Due Process--Duty of Non-Resident Vendor to Collect Use Tax

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Evidence--Criminal Law--Circumstantial Evidence Sufficient to Establish Corpus Delicti

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Evidence--Presumptions--Rebuttable Presumption Persists Until Trier of Fact Finds Nonexistence of Presumed Fact as Probable as its Existence

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Restraint of Trade--Sherman Act--Refusal to Sell as Unlawful Means of Effecting Price Maintenance

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Torts--Negligence--Vendor of Alcoholic Beverage to Intoxicated Minor Liable to Third Party

Procedure And Evidence -- 1960 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

This survey is in large part merely what Professor Chafee once characterized as a horizontal digest. In the previous survey a request was made that interested members of the Bar advise the "Editor-in-Chief of this Review whether the character of the annual survey of this subject should be changed. The request is repeated herewith.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases:

CONTRACTS--CONFLICT OF INTERESTS--GOVERNMENT EXPERT'S PRINCIPAL EMPLOYMENT INSUFFICIENT TO VOID CONTRACT ON GROUNDS OF PUBLIC POLICY

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CRIMINAL LAW-ATTEMPT-CONVICTION OF ATTEMPT TO RECEIVE PROPERTY NOT IN FACT STOLEN

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DOMESTIC RELATIONS-UNIFORM RECIPROCAL ENFORCEMENT OF SUPPORT ACT--RELIEF FROM-EXTRADITION UPON PETITION OF THE OBLIGOR

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EVIDENCE-ADMISSIONS--GUILTY PLEA TO TRAFFIC LAW VIOLATION INADMISSIBLE IN SUBSEQUENT CIVIL SUIT

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FEDERAL JURISDICTION AND PROCEDURE--DIVERSITY JURISDICTION--ABSTENTION BY FEDERAL COURT FROM THE EXERCISE OF JURISDICTION IN DIVERSITY CASE

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LABOR LAW--LABOR--MANAGEMENT RELATIONS ACT-STATE COURT PRE-EMPTED FROM ENFORCING GRIEVANCE PROCEDURES OF COLLECTIVE BARGAINING AGREEMENT

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PROFESSION OF LAW--BAR ASSOCIATION MAY NOT DISCIPLINE AN ATTORNEY FOR CONDUCT AS …

Procedure And Evidence--1959 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

This survey of Procedure and Evidence is in most respects merely a horizontal digest of the cases which have been published between June 1, 1958, and June 1, 1959. Only a few decisions are of the character and importance that would call for comment in regular course in a law review like the Vanderbilt Law Review. Many of them are mere illustrations of inexcusable disregard by counsel of our applicable statutes and rules and previous decisions of our appellate courts interpreting them. Whether this sort of treatment of the subject is justifiable is open to serious question. The answer depends …

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, …

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 …

Variable Verbalistics -- The Measure Of Persuasion In Tennessee, Kenneth L. Roberts, William M. Sinrich

Vanderbilt Law Review

In a trial one party always has the affirmative burden of persuading the finder of fact to adopt his allegations as true. This burden is met by inducing a particular degree of belief in the mind of the fact finder.'Manifestly, absolute truth is not attainable in a lawsuit. Rather certain facts are found to exist from all the evidence presented and these findings labeled true for the purposes of the case. Since different factual situations require different measures of persuasion, it is necessary that the fact finder, whether judge or jury, know and understand the particular measure applicable in order …

Annual Survey Of Tennessee Law, Harold Seligman

Vanderbilt Law Review

Of particular significance in this field during the survey year has been the decision of the Supreme Court of Tennessee in Southern Bell Tel. and Tel. Co. v. Tennessee Pub. Serv. Comm'n. Several aspects of administrative law are involved in this holding, including scope of review, evidence to be considered by the court on review, and the rate-making function...

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In Flowers v. Benton County Beer Board, the license of a beer permit holder was revoked by a county beer board due to the holder's plea of guilty to driving an automobile while under the influence of an intoxicant in …

Criminal Law And Procedure -- 1958 Tennessee Survey, Charles H. Miller

Vanderbilt Law Review

In surveying the field of criminal law and procedure the cases presented to the supreme court during the year were little more than normal or typical. Several of the criminal cases are not presented in detail in this article, as they are dealt with in other survey sections.

Procedure And Evidence -- 1958 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Construction and Sufficiency on Demurrer: A pleading must be construed in the light of matters judicially noticed; an allegation of facts from which the inference of the existence of an essential fact is no more reasonable or is less reasonable than an inference of its non-existence is not the equivalent of an allegation of that essential fact. ...

Thus in an action against a Pension Board for money due, a demurrer to the bill of complaint specifying only the failure to allege a ground of recovery does not raise the question whether the decision of the Pension Board is made …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--Jurisdiction--Assumption of Personal Jurisdiction over Non-Resident Insurer on the basis of a Single Insurance Contract

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Constitutional Law--Taxation--Tax Immunity of Federal Government not Infringed by Local Taxes upon Possession of Government Property

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Evidence--Hearsay--Utterance of Employee under Emotional Stress Admissible to Establish Scope of Employment and Render Employer Vicariously Liable

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Insurance--Automobile--Duplicating Recoveries allowed under Liability and Medical Payment Clauses of Automobile Liability Insurance Policy

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Insurance--Business Indemnity--Radiation Decontamination Expenses not Recoverable under a Business Interruption Clause

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Insurance--Life--Variable Annuity Contracts not Subject to Regulation by Securities and Exchange Commission

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Physicians--Unprofessional Conduct--Willful Evasion of Federal …

Book Review, Law Review Staff

Vanderbilt Law Review

The National Probation and Parole Association has been working for over 35 years to improve the administration of justice and in the publication of "Guides for Sentencing" it has provided one of its most important services to judges who are charged with the administration of criminal justice and to juvenile and domestic relations courts. The book is the first of a series of practical manuals for all of the above named courts and it is the result of the combined labors of 37 specially selected United States, state and juvenile judges for a period of about five years. Bolitha J. …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Automobiles--Owner's Liability Statutes--Application to the Master-Servant Relationship

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Bankruptcy--Discharge--Failure of Creditor to Inform Bankruptcy Court of Bankrupt's Fraud in Procuring Loan

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Bills and Notes--Demand Instruments--Time When Statute of Limitations Begins to Run

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Bills and Notes--Holder in Due Course--Giving a Check in Exchange for Another Negotiable Instrument is not the Giving of Value When the Check Turns Out to be Worthless

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Constitutional Law--Due Process of Law--Use of Perjured Testimony and Suppression of Material Evidence Favorable to Accused in State Criminal Proceedings

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Constitutional Law--Equal Protection of the Laws--Executory Interest Conditioned upon Racial Restriction on Use of Land

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Book Reviews, Ronan E. Degnan (Reviewer), James J. Lenoir (Reviewer), David H. Vernon (Reviewer), David W. Louisell (Reviewer), David Maxwell (Reviewer)

Vanderbilt Law Review

Book Reviews:

Cases and Materials on Evidence, Fourth Edition. By Morgan, Maguide & Weinstein Brooklyn: Foundation Press, 1957. Pp. xxiv,880. $11.00

reviewers: Ronan E. Degnan and David W. Louisell

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Estate Planning and Taxation Two volumes. By William J. Bowe Buffalo: Dennis & Company, Inc., 1957. Vol. I, pp. lvi, 590; Vol. II,pp. viii, 614.

reviewer: James J. Lenoir

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The Sanctity of Life and the Criminal Law By Glanville Williams. New York: Alfred A. Knopf, 1957. Pp. xi, 350. $5.00.

reviewer: David H. Vernon

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Current Legal Problems Edited by G. W. Keeton & G. Schwarzenberger London: Stevens & …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Application of Privilege against Self-Incrimination to Denaturalization Proceedings

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Constitutional Law--Implied Immunity--Federal Contractor not Subject to State Licensing Requirements

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Evidence--Confession of Co-Conspirator Admissible under Proper Instructions in Joint Trial

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Federal Jurisdiction--Injunctions--Judicial Code Section 2283 is Inapplicable to Injunctions sought by the United States

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Judgments--Res Judicata--Voluntary Absence of Insured Constitutes Extrinsic Fraud

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Labor Law--Unemployment Insurance--Double Affirmation Clause Held Unconstitutional

Rules Of Evidence -- Substantive Or Procedural?, Edmund M. Morgan

Vanderbilt Law Review

It hardly needs stating that the definition of a legal word or term depends upon the purpose for which it is to be defined. If in framing a generalization designed to state a rule or make a discrimination applicable in a specific topic or field of the law, the courts use specified terms, it by no means follows that they intend those terms to be understood in the same sense in generalizations dealing with problems in another topic or field. The words, substance or substantive and procedure or procedural, have been used most frequently in three separate situations: (1) in …

Book Reviews, Robert N. Cooks (Reviewer), Kenneth B. Hughs (Reviewer), Jess Halstead (Reviewer), Walter P. Armstrong, Jr. (Reviewer), Howard J. Graham (Reviewer)

Vanderbilt Law Review

Current Legal Problems 1956 Edited by G. W. Keeton and G. Schwarzenberger London: Stevens & Sons, 1956. Pp. vii, 275. $5.55

reviewer: David F. Maxwell

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Some Problems of Proof under the Anglo-American System of Litigation By Edmund Morris Morgan. New York: Columbia University Press, 1956. Pp. xii, 195. $3.50

reviewer: Charles T. McCormick

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Effective Drafting of Leases with Check List and Forms By Milton N. Lieberman Newark: Gann Law Books, 1956. Pp. viii, 974

reviewer: Robert N. Cooks

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The Law and One Man Among Many By Arthur E. Sutherland Madison: University of Wisconsin Press, 1956. Pp. ix, …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Alimony may be Awarded Wife after Husband obtains Ex Parte Divorce

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CONFLICT OF LAWS--FORUM NON CONVENIENS APPLIED FOR PROTECTION OF LOCAL INTERESTS

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CONSTITUTIONAL LAW--IMPAIRMENT OF CONTRACT--EXISTING AUTOMOBILE DEALERSHIP CONTRACT MAY BE CHANGED TO PROTECT THE GENERAL WELFARE

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CRIMINAL LAW--BIGAMY--GOOD FAITH BELIEF THAT ACCUSED WAS DIVORCED IS A DEFENSE TO A CHARGE OF BIGAMY

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EVIDENCE--RELEVANCY--ADMISSION OF HABIT EVIDENCE TO SHOW DUE CARE

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FEDERAL TORT CLAIMS ACT--SCOPE OF EMPLOYMENT--GOVERNMENT'S LIABILITY FOR SKYLARKING AIRCRAFT

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INCOME TAXATION--RESERVE WITHHELD BY FINANCE COMPANY AND CHARGEABLE WITH AMOUNT OF DISHONORED NOTES NOT ACCRUABLE AS INCOME TO INDORSER

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LABOR …

Procedure And Evidence -- 1956 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

To one who has not inherited the Tennessee system of procedure and has not yet "first endured, then pitied, then embraced" it, it presents some startling contrasts. There is an astounding inter-mingling of the modern, which seeks to make procedure the servant of substance, with the ancient, that has in most jurisdictions been relegated to the legal attic or to a museum of procedural antiques. In an action instituted by warrant in the Court of General Sessions of Shelby County and tried de novo on appeal in the circuit court, the warrant is a summons and cannot serve as a …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Congressional Investigations --Relevancy of Required Testimony

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Constitutional Law--State Taxation of Interstate Commerce--Sales Taxation of Income from Trans-Shipment of Goods within State

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Criminal Law--Felony Murder Doctrine--Co-Felon Killed by Victim of Crime

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Evidence--Judicial Admissions--Testimony as to Objective Facts

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Federal Tort Claims Act--"Private Individual" Clause--Uniquely Governmental Activity

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Income Taxation--Capital Gains and Losses--Business Purpose for Contracting in Commodity Futures

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Labor Law--Taft-Hartley Act--Discharge of Employees because of Union Membership

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Negligence--High Tension Power Lines--Duty to Warn of Dangerous Condition

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Real Property--Joint Tenancy--Severance of Estate by Murder of Co-Tenant

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Torts--Landowner--Duty to Social Guest

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Wills--Pretermitted Heir Statue--Sole …

The Twilight Zone Of Hearsay, Richmond Rucker

Vanderbilt Law Review

The twilight zone of hearsay and nonhearsay has provoked searching analyses by eminent authorities in the field of evidence. Although these contributions have doubtless been of inestimable value, exerting a profound influence in the solution of problems dealing with acts and utterances within this area of proof, there is much to be desired in the way of clarity as reflected by innumerable opinions of the courts. No fatuous notion is here entertained that within the limits of this discussion order will be rescued from chaos, or for that matter that an appreciable contribution will be made toward that end. Nevertheless, …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Governmental Activities--Recognition in Forum of Sister State's Original Revenue Claim

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Constitutional Law--State Taxation of Interstate Commerce--Sales Tax on Shipboard Sales to Passengers

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Courts--Certiorari from United States Supreme Court--Loss of Importance Ground for Dismissal

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Domestic Relations--Adoption--Revocation of Consent by Natural Parents

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Evidence--Admissibility--Exclusion of Evidence Obtained by Unreasonable Search and Seizure

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Federal Procedure--Illegal Search--Injunction Against Agent's Testifying in State Court

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Income Taxation--Claim of Right Income--Time of Deduction when Restoration Required

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Malicious Prosecution--Privilege--Filing of Complaint with Bar Ethics and Grievance Committee

Justice Story On The Common Law Of Evidence, John C. Hogan

Vanderbilt Law Review

In our system of jurisprudence it is the province of the jury to decide all matters of fact. The trial is held and the verdict of the jury is delivered in the presence of a judge who is bound to decide matters of law which arise in the course of the trial. Whenever a thing offered as proof is questioned as not proper to go before the jury as evidence, that question is to be resolved by the judge, and unless he permits it to be introduced as evidence at the trial, it can not legally come to the consideration …

Criminal Law And Procedure -- 1955 Tennessee Survey, Austin W. Scott Jr.

Vanderbilt Law Review

Homicide: In Ivy v. State' the defendant, in the course of a fight with A, stabbed B, a peacemaker, killing him. The defendant appealed his conviction of involuntary manslaughter on the theory that the evidence did not support the verdict, since it showed that the defendant was striking at A in self-defense when he unfortunately stabbed B. The court held that the jury could properly find on the evidence either that (1) the defendant, not A, was the aggressor, or (2) even if A were the aggressor, defendant was not in imminent danger or reasonably supposed danger of death or …

Book Reviews, Robert J. Harris (Reviewer), E. M. Morgan (Reviewer)

Vanderbilt Law Review

Book Reviews

The Fifth Amendment Today By Erwin N. Griswold Cambridge)Mass.: Harvard University Press. Pp. vi, 82. $0.50

reviewer: Robert J. Harris

Handbook of the Law of Evidence By Charles T, McCormick St.Paul: West Publishing Co., 1954, pp. xxviii, 774.

reviewer: E. M. Morgan

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Jurisdiction to Modify Custody Decree after Child's Domicile Changes--Full Faith and Credit in Third State

Constitutional Law--Freedom of Speech--"Prior Restraint" of Motion Pictures

Corporations--Uniform Stock Transfer Act--Effect of Notice of Restriction on Transfer

Criminal Procedure--Contempt--Extent of Power of Trial Judge to Punish Summarily

Evidence--Post-Accident Statements--Theories of Admissibility

Insurance--Automobile Theft Policy--Meaning of "Possession" in Exclusionary Clause of Policy

Malicious Prosecution--No Recovery for Base Less Civil Action--Necessity of "Special Injury"

Malpractice--Negligent Prescription of Habit--Forming Drugs--Patent's Simulation of Pain as Contributory Negligenic

Procedure And Evidence -- 1954 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Generally: The strict rules of pleading are not applicable in a will contest,' which is a proceeding sui generis and regulated by statute. Demurrer. A demurrer to a cross-bill in chancery on the ground that it "states no cause of action upon which relief can be granted" is a nullity, and should be stricken on motion.

Plea in Abatement: Where the chancellor upon hearing a plea inabatement of another action pending for the same cause, found that the cause was substantially the same, and granted plaintiff permission to file the bill in the later suit as an amended or supplemental …

Criminal Law And Procedure -- 1954 Tennessee Survey, Clyde L. Ball

Vanderbilt Law Review

Most of the criminal law cases in the Tennessee courts during the past year have dealt with matters of procedure. The basic principles derived from these cases are treated in the Procedure and Evidence article of this 1954 Survey.' However, those cases of especial interest and significance will be considered here in somewhat greater detail. In addition to procedural matters there were a few cases which turned on concepts basic in the substantive law of crimes.

Substantive Law

Homicide: Tennessee has enunciated and followed a rule which states that driving an automobile while intoxicated is an act malum in se, …

Recent Cases, Law Review Staff

Vanderbilt Law Review

A Commentary on Recent Case Law --By Subject:

Constitutional Law--Due Process--Use in State Prosecution of Evidence obtained by Illegal Invasion of Privacy

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Constitutional Law--Unlawful Search and Seizure--Admissibility of Evidence for Impeachment Purposes

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Evidence--Radar Evidence of Speed--Coincidence of Radar and Speedometer Readings as Hearsay

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Federal Courts--State NonResident Motorist Statute--Waiver of Federal Venue Privilege

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Federal Jurisdiction--Diversity of Citizenship--Retroactive Effect of Amendments to Perfect Jurisdiction

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Income Taxation--Deductions--Periodic Alimony Payments

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Labor Law--Preemptive Effect of Taft-Hartley--Scope of State Jurisdiction

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Torts--Dog Bite--Owner's Scienter

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Workmen's Compensation--Accident Arising out of Employment--Pre-Existing Heart Disease