Law Commons^™

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases--

Attorney and Client--Contingent Fee Contracts--Divorce Action

Corporations--Corporate Power--Contributions to Philanthropic Institutions

Corporations--Criminal Anti-Trust Action--Indemnification of Directors for Litigation Expenses

Evidence--Presumption of Law and Inference of Fact--Retrospective Presumption of Continuity

Federal Procedure--Class Actions--Discretion of Trial Court

Income Taxation--Deductions--"Ordinary and Necessary"--Expenses

Income Taxation--False Statements--Criminal Penalties

Labor Law--Arbitration Agreements--Specific Enforcement in Federal Courts

Military Law--Discharged Personnel--Power to Arrest for Serious Crimes

Military Law--Privilege Against Self Incrimination--Admissibility of Handwriting Specimen Obtained Involuntarily

Torts--Automobile Guest--Contributory Negligence as a Matter of Law

Workmen's Compensation--Employees' Altercations--Aggresso

Book Reviews, Law Review Staff

Vanderbilt Law Review

Readings in Jurisprudence and Legal Philosophy By Morris R. Cohen and Felix S. Cohen New York: Prentice-Hall, Inc., 1951. Pp. viii, 944,$8.50

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Jurisprudence: Men and Ideas of the Law By Edwin W. Patterson Brooklyn: The Foundation Press, Inc., 1953. Pp. viii, 649.

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Jurisprudence--Its American Prophets By Harold Gill Reuschlein Introduction by Roscoe Pound Indianapolis: The Bobbs-Merrill Company, Inc., 1951. Pp. xii, 527, $7.50

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Law and Society in Evolution By Sidney Post Simpson and Julius Stone Introduction by Roscoe Pound St. Paul: West Publishing Co.,1948. Pp. xlvi, 692

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Law in Modern Democratic Society By Sidney Post Simpson …

Overlapping, Duplication And Conflicts Among Municipal Corporations, Alvin E. Evans

Vanderbilt Law Review

There is a well-known principle of municipal government that there cannot be two municipalities possessed of the same or similar powers, privileges and jurisdiction covering the same territory at the same time. Perhaps the earliest expression of this principle may be found in an early English dictum to that effect where the court explains why such a proposition must be true, viz., "[F]or, instead of good order, that would only be productive of anarchy." Whether in our conglomerate of municipalities we have abided by this principle or have created duplications, overlappings and conflicts due to the vast multiplicity of municipal …

The Rule Of Law And The Modern Social Welfare State, Roscoe Pound

Vanderbilt Law Review

Professor Friedmann, who had already made a notable contribution to jurisprudence in his Legal Theory, now in its second edition, has now made a second and perhaps even more notable contribution toward understanding the role and presaging the future of the common law system in the society of today. His purpose is a reassessment of the function of law and of legal institutions in England a half century after Dicey's Law and Public Opinion in England during the Nineteenth Century, comparing the economic function of law and how the common law was adapted to it in the nineteenth century with …

The Non-General Power Of Appointment -- A Creature Of The Powers Of Appointment Act Of 1951, Allan Mccoid

Vanderbilt Law Review

In the course of the past fifty years, during which estate planning has become a specialty rather than one of many jobs handled by the general practitioner, the power of appointment has become an increasingly popular form of gift. The two great advantages which have been claimed for the power are the introduction of great flexibility into the estate plan and the reduction of the tax burden on the property as it passes from one generation to another. It was presumably with both of these objectives in mind that Professor William J. Bowe made a suggestion last year as to …

Why The Prudent Man?, Alex B. Stevenson

Vanderbilt Law Review

In the law relating to fiduciary investments there has been going on of recent years something very like a revolution. One needs an excuse for adding anything at all to the very considerable volume of comment about the Prudent Man Rule for trust investment. However, failing the hope that anything really new may be said, there does remain a persistent belief that the rationale of what has happened has been somewhat oversimplified.

In the interests of perspective, accordingly, it might be serviceable if we were first (and briefly) to reexamine some of the history of the more dramatic highlights of …

Heir Hunting -- A Profession Or A Racket?, Frank C. Ingraham

Vanderbilt Law Review

Although the cases clearly define the law and public policy applicable to the genealogist's contract, the important variable is the individual factual situation and its implications. The courts have upheld the heir-hunter's contract when the following factors were predominant in the suit: where the services of the genealogist amounted to valuable consideration; where the parties were competent and on equal footing; where there was no implied or express agreement to participate in existing or contemplated litigation; where the beneficiary accepted the evidence which established his claim and received the benefit of the claim; where there was no duty on the …

Book Reviews, Jay W. Murphy (Reviewer), Edmund M. Morgan (Reviewer), Reginald Parker (Reviewer)

Vanderbilt Law Review

Readings in Jurisprudence and Legal Philosophy

By Morris R. Cohen and Felix S. Cohen

New York: Prentice-Hall, Inc., 1951. Pp. viii, 944, $8.50

================================

Jurisprudence: Men and Ideas of the Law

By Edwin W. Patterson

Brooklyn: The Foundation Press, Inc., 1953. Pp. viii, 649.

==================================

Jurisprudence -- Its American Prophets

By Harold Gill Reuschlein

Introduction by Roscoe Pound

Indianapolis: The Bobbs-Merrill Company, Inc., 1951. Pp. xii, 527, $7.50

==================================

Law and Society in Evolution

By Sidney Post Simpson and Julius Stone

Introduction by Roscoe Pound

St. Paul: West Publishing Co.,1948. Pp. xlvi, 692

=====================================

Law in Modern Democratic Society

By …

Section 112(B)(6): Benefit Or Burden?, Raymond Whiteaker

Vanderbilt Law Review

The general provision in the Internal Revenue Code pertaining to the liquidation of corporations is section 115 (c). Under this section gain or loss on a liquidation is recognized to the extent that the assets received in liquidation exceed or fail to exceed the basis of the share-holder's stock. An exception to this general rule, however, is provided by section 112(b) (6) whereby a parent may liquidate a subsidiary without recognizing any gain or loss on the liquidation if the statutory requirements are met.

The nonrecognition provision first appeared in the Revenue Act of 1935 as section 110 (a).' This …

Personal Liability Of Corporate Officers For Ultra Vires Contracts, J. F. Dirisio

Vanderbilt Law Review

A director or other officer of a corporation, when contracting on its behalf, acts as its agent and the laws of agency are generally applicable. This note presents those problems, apparently unique to corporation law, in the liability of an agent who, with authority, contracts for a principal who has no authority.' Of no concern here are those instances where, either because of ratification or estoppel, the corporation itself is liable, since if the principal is bound the other party has no ground of complaint against the agent.

An officer of a corporation, contracting in excess of or without authority …

Torts, John W. Wade

Vanderbilt Law Review

As might have been expected a large portion of the litigation before the Tennessee appellate courts during the Survey period involved tort actions. Most of these actions, of course, were based upon negligence. There were several cases involving the intentional harms of assault and battery and false imprisonment. No cases were decided involving deceit, defamation, strict liability or interference with advantageous relations.

Agency, Merton Ferson

Vanderbilt Law Review

The facts in Dickson v. Blacker were these: Dickson operated a filling station in Memphis and, along with it, a parking lot situated one and one-half blocks from the filling station. Blacker left his automobile at the filling station for storage, and it was taken to the parking lot. An employee of Dickson was sent to the parking lot to get the car. The employee, without permission, drove the car away and wrecked it six blocks from the filling station. Blacker, the owner of the car, was allowed to recover from Dickson, the owner of the filling station parking lot.

Workmen's Compensation, John M. Cate

Vanderbilt Law Review

A review of the past year in Workmen's Compensation in Tennessee must of necessity take into account any legislative change in the Compensation Act itself' as well as trends disclosed through the decisions of the courts. The modern development and growth of this new theory, that of liability without fault, make pertinent the inquiry. Although a development of one generation, the theory of Workmen's Compensation is now almost universal in application. Under it, industry bears its fair share of the cost of injuries to workers, without any reference to fault or blame or negligence, where there is a reasonably apparent …

Annual Survey Of Tennessee Law, John W. Wade

Vanderbilt Law Review

The idea of an annual survey of the law of a particular jurisdiction is not a new one, either in this country or abroad. During a period of at least 25 years an increasing number of publications have undertaken to present such a survey. The task is a delicate one, and performances have been somewhat uneven. A mere digest of appellate opinions or a scissors-and-paste collection of expressed rules of law serves some useful purpose but scarcely justifies separate existence. On the other hand an exhaustive discussion of most of the individual decisions prevents a view of the forest for …

Bills And Notes, Paul J. Hartman

Vanderbilt Law Review

The Parol Evidence Rule as Applied to Bills and Notes. The Tennessee Supreme Court case of Lazarov v. Klyce' presented the problem of when an agent who has signed a negotiable instrument can use parol evidence to exonerate himself from personal liability on the instrumentat the suit of the payee. The payee of a note sued the defendant, Arnold Klyce, to hold him individually liable on the note of a corporation of which defendant was an officer. The defense was that the note was an obligation of the corporation, that defendant signed as an officer of the corporation and that …

Contracts, Merton Ferson

Vanderbilt Law Review

The case of Thomas v. Million presented these facts: The defendant listed a house and lot for sale with the plaintiff, a real estate broker,for $16,500. The plaintiff advertised the property for sale and showed it to many prospects, including a man by the name of Cowell. After that, the defendant wrote a letter to the plaintiff, "terminating the agency contract" of the plaintiff. The defendant then sold the property to Cowell for $15,500. The plaintiff was allowed to recover $500 as a reasonable commission.

Creditor's Rights, Paul J. Hartman

Vanderbilt Law Review

In City Finance Co. v. Perry, the Tennessee Supreme Court was called upon to construe a portion of the new and rather involved Motor Vehicle Title and Registration Law, which was enacted by the 1951 legislature. The Perry case construed the provisions which have to do with the recordation of liens upon the certificate of title as constructive notice thereof. These require owners of motor vehicles to register them in the name of the owner with the Motor Vehicle Division of the Tennessee Department of Safety and to procure from it a certificate of title and a title card. This …

Real Property, Herman L. Trautman

Vanderbilt Law Review

The Tennessee cases in the fields of Real Property and Future Interests have been quite abundant during the period' covered by this Survey. Because of the number of cases and the very interesting and novel problems presented in some of them, and because the scope of the law of Future Interests includes cases which involve Wills and Personal Property as well as Real Property, it is believed that the reader will find it more feasible to consider the Future Interest cases in a separate article appearing in this Survey. Therefore, notwithstanding some overlapping, the emphasis of this article will be …

Future Interests, Herman L. Trautman

Vanderbilt Law Review

There were five cases in the field of Future Interests during the period' covered by this Survey. They were all decided by the Supreme Court of Tennessee. From the standpoint of doctrinal development, Mountain City Missionary Baptist Church v. Wagner, involving the relation of the possibility of reverter to the Rule against Perpetuities, was probably the most significant, although the point determined had perhaps been assumed previously in Tennessee. Pope v. Alexander drew a neat distinction between a trust for a "public" cemetery and a trust for a "private" cemetery with respect to the Rule against Perpetuities. A plausible suggestion …

Personal Property And Sales, William D. Warren

Vanderbilt Law Review

The similarity of the subject matter, together with the paucity of cases in each field, has made it advisable to combine the personal property and sales cases in one article. Though the total number of cases falling within these fields was small, the proportion of novel and interesting issues raised was high. This article is an attempt to analyze as well as describe the significant cases decided in this area within the past year.

Procedure And Evidence, Edmund M. Morgan

Vanderbilt Law Review

Demurrer: The Tennessee cases reiterate the orthodox proposition that a demurrer admits the facts alleged or averred in the pleading to which it is interposed.' It is perhaps unnecessary to note that this proposition is true only when the problem concerns the sufficiency of the allegations or averments in the pleading. In truth, the demurrer is merely a default as to the facts and a tender of issue on the law. If the demurrer is overruled and the action is for unliquidated damages, the plaintiff's averment as to the amount of the damages is not taken as true; he must …

Labor Law, Paul H. Sanders

Vanderbilt Law Review

The body of statutory wording, regulations and court and administrative decisions which clusters around such familiar federal landmarks as the Labor-Management Relations Act ("Taft-Hartley") and the Fair Labor Standards Act ("Wage and Hour") fall far short of constituting the entire subject matter of Labor Law. State statutes or the common law of the state may be much more in point in providing the legal framework for solving a particular problem of the employment relationship, whether viewed individually or collectively. The law which governs the various aspects of the "human factor in industry," or which prescribes the ground rules under which …

Statutory Interpretation, Henry N. Williams

Vanderbilt Law Review

The Supreme Court of Tennessee reconsidered several problems in the field of Statutory Interpretation during the Survey period, but its decisions largely followed principles already established in Tennessee and other jurisdictions.

Constitutional Requirements

Certain problems in the field of legislation arise in Tennessee by reason of state constitutional provisions. The Court is committed to the position of interpreting these provisions more or less irrespective of the construction of comparable provisions in other state constitutions.'

The Constitution of the State of Tennessee provides: "No bill shall become a law, which embraces more than one subject; that subject to be expressed in …

Constitutional Law, Paul H. Sanders

Vanderbilt Law Review

The Supreme Court of Tennessee has been faced with few major Constitutional Law problems during the period under consideration. Statistically, the action of the Court in invalidating one law out of almost a score that were attacked before it on the basis of constitutional defect suggests an attitude of judicial restraint toward the product of a coordinate branch of government. The relatively small number of constitutional questions raised-- and many of them were obviously make-weight rather than points of principal reliance-- suggests a general awareness of the Court's stability and the unlikelihood of its departing from established precedent. Similarly, regard …

Criminal Law And Procedure, William D. Warren

Vanderbilt Law Review

In the field of Criminal Law and Procedure, the Tennessee Supreme Court might be said to have completed a normal, even typical, year; some new law was announced, and much existing law was reiterated and reshaped. The Court's respect for local precedent persisted undiminished. No Tennessee case was directly overruled, and Tennessee precedents were closely adhered to when available. Not a single dissent appeared in the cases discussed in this article. The brevity of appellate opinions--particularly their highly condensed fact paragraphs--makes critical analysis of them a difficult and somewhat risky procedure. Nevertheless, an attempt has been made in this article …

Local Government Law, Clyde L. Ball

Vanderbilt Law Review

This summary is limited to cases decided in the Court of Appeals and Supreme Court of Tennessee, reported during the last year, and dealing with some phase of that body of law which embraces' Municipal Corporations, Counties, Officers, Elections and related topics fitting into the general classification of Local Government Law. No attempt has been made to consider Acts of the 1953 General Assembly which may have affected this field, as most of the legislation in this field is local in nature.

Domestic Relations, William J. Harbison

Vanderbilt Law Review

There have been several important appellate decisions by the Tennessee courts in the field of domestic relations during the past year, and several significant statutes on the subject were enacted by the 1953 General Assembly. These decisions and statutes are discussed briefly herein according to subject matter.

Insurance, Robert W. Sturdivant

Vanderbilt Law Review

One of the most significant decisions during the past year in the field of liability insurance was that of the Court of Appeals in the case of Southern Fire & Casualty Co. v. Norris.' The case involved the duty of a liability insurer toward the insured in the settlement of claims. As early as 1928, the Supreme Court of Tennessee held that the insurer has an obligation toward the insured to use good faith in the conduct of litigation and in the settlement of claims when the insurer assumes control of a case under the provisions of its policy.

Wills, Estates And Trusts, William J. Bowe

Vanderbilt Law Review

Formalities. The statutory formalities required for the execution of wills are too frequently brushed aside as trivia. The lawyer, supervising the ceremony of execution, and the testator, as the chief actor, may have feelings of embarrassed self-consciousness in complying with the required minutiae. But the importance of staging a routine ceremony, however silly it may seem at the moment, cannot be overestimated. Law students ought to be told and practitioners reminded to adopt the practice, once the testator and witnesses are assembled, of closing the door, drawing the shades, cutting off the telephone and advising all present that no one …

Business Associations, Paul J. Hartman

Vanderbilt Law Review

Use of Corporate Entity to Evade Contractual Obligations. Scott v. McReynolds afforded the Court of Appeals an opportunity to pierce the corporate veil. Plaintiff and defendant McReynolds were partners in the business of selling butane-propane gas and appliances. In a contract dissolving the partnership, McReynolds agreed not to sell gas or appliances within a specified area. Shortly thereafter, the other defendant, a corporation, was formed, and it sold gas within the exempted area in competition with plaintiff. McReynolds was president of the defendant corporation, was actively engaged in the business and was a "prime mover in the organization of the …