Law Commons^™

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 …

Procedure And Evidence -- 1955 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Demurrer: Demurrers are not favored in Tennessee. The pleading to which a demurrer is interposed is construed most favorably to the pleader. For the purpose of determining the sufficiency of a pleading all properly pleaded allegations are upon demurrer taken to be true; in the usual phrasing, they are said to be admitted. Although Tennessee courts, like all others, declare that a demurrer does not admit a conclusion of law, they sometimes let it come perilously close to doing so. Thus, in an action by a bailee against his bailor for failure to return chattels in the condition in which …

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

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, …

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 …

Rule 43(A) And The Communication Privileged Understate Law: An Analysis Of Confusion, George W. Pugh

Vanderbilt Law Review

What rules govern the admissibility of evidence in federal court? Rule 43 (a) purports to provide the answer with respect to cases falling within the ambit of the Federal Rules of Civil Procedure.' Is the Rule working satisfactorily, or should it now be abandoned in favor of a new and different solution? The problem thus presented is broad and pervasive. A definitive answer will not be attempted in this paper. Instead, the writer proposes to give only a general discussion of the broader aspects of the Rule, and to limit analysis of the cases to a very restricted area--the meaning …

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

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 …

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 …

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

Particularizing Standards Of Conduct In Negligence Trials, James Fleming Jr., David K. Sigerson

Vanderbilt Law Review

The general principles to be applied by court or jury in deciding whether conduct is reasonable have been examined elsewhere.' The problem to be dealt with here concerns the specific application of the law's standard of conduct to concrete cases. How, that is, may it be shown what a party or his opponent should have done, in the way of taking precautions or the like, in the situation presented by the evidence? What kinds of proof or argument are available to make this showing? When must such a showing be made by proof? Is the jury or court to determine …

The Admissibility Of Evidence Procured By Illegal Search: Scotland, Zelman Cowen

Vanderbilt Law Review

The question whether illegality in the means of procuring evidence is a bar to its admissibility has received little consideration in the English authorities. There is little authority in the reports, while most text-writers do not deal with the problem at all. Halsbury, who considers it briefly, states a rule that if property or documents have been wrongfully seized, the seizures will be excused if they are in fact material evidence of a crime committed by any person." The principal authority cited in support is Elias v. Pasmore. Archbold states a similar rule, but Phipson, who twice cites Elias v. …

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONSTITUTIONAL LAW--RACIAL RESTRICTIVE COVENANTS--ALLOWANCE OF DAMAGES FOR BREACH

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CORPORATIONS--PARENT AND SUBSIDIARY--SUBSIDIARY AS INSTRUMENTALITY OF PARENT WHEN USED TO CARRY ON UNFAIR TRADE PRACTICES

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EVIDENCE--ADMISSIBILITY OF CONFESSION--SCOPE OF REVIEW OF COURT-MARTIAL BY COURT OF MILITARY APPEALS

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EVIDENCE--CONFLICT OF LAWS--APPLICATION OF DOCTRINE OF RES IPSA LOQUITUR

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EVIDENCE--DUE PROCESS--USE IN STATE PROSECUTION OF EVIDENCE FORCIBLY OBTAINED BY STOMACH PUMP

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EVIDENCE--ENTRIES IN THE REGULAR COURSE OF BUSINESS--TEST FOR EXTENT OF ADMISSIBILITY UNDER FEDERAL JUDICIAL CODE

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EVIDENCE--HEARSAY--ADOPTION OF LIBERAL ADMISSION RULES OF ADMINISTRATIVE TRIBUNALS IN ANTITRUST COURT ACTION

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EVIDENCE--IMPEACHMENT OF ONE'S OWN WITNESS--USE OF PRIOR INCONSISTENT STATEMENTS

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A Symposium On Evidence -- Foreward, Orie L. Phillips

Vanderbilt Law Review

This is the fifth in a series of symposia published by the Vanderbilt Law Review on important legal subjects. This symposium covers a number of selected subjects in the field of Evidence. The privilege accorded me of writing this foreword affords me the opportunity to express my sincere appreciation of this excellent symposium and the confident hope that it will be most helpful to students, judges and practicing lawyers.

The term "Evidence" imports the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.' It embraces the rules of law …

Judicial Notice, Charles T. Mccormick

Vanderbilt Law Review

The traditional Anglo-American system of proof demands rigorous guaranties of accuracy, with its requirement of witnesses having first-hand knowledge, its mistrust of hearsay, however reliable, except for narrow exceptions, and its insistence upon original documents and their authentication by witnesses. These requirements have their roots in the contentious or adversary system, where the party and not the judge is responsible for gathering and presenting facts, and in the method of jury trial. But this strict though scientific insistence upon proving everything at first hand is, like jury-trial itself, enormously costly in time, energy and money. The principal effect of the …

Real Proof I, Jerome Michael, Mortimer J. Adler

Vanderbilt Law Review

The trial of an issue of fact is an epistemic, a logical, and a legal affair. In its epistemic aspect it can be viewed as a process of learning: By means of the trial the jury acquires the knowledge which it must have in order to decide the issue. The analysis of this aspect of a trial is primarily concerned with the different kinds of knowledge and with the various ways in which knowledge is obtained. In its logical aspect the trial of an issue of fact can be viewed as a process of teaching: By their proof and disproof …

Declarations Against Interest, Edmund M. Morgan

Vanderbilt Law Review

"Declarations of a person, whether verbal or written, as to facts relevant to the matter of inquiry, are admissible in evidence, even as between third parties, where it appears: (1) That the declarant is dead; (2) that the declaration was against his pecuniary or proprietary interest; (3) that he had competent knowledge of the fact declared; (4) that he had no probable motive to falsify the fact declared." This, Mr. Justice Walker of North Carolina in 1906 stated to be the established rule.' What is its origin; for what reason is the evidence held to be admissible; to what extent …

Privileged Communications--Some Recent Developments, Lloyd S. Adams Jr., Mary E. Polk

Vanderbilt Law Review

It is the purpose of this Note to collect and discuss some of the newer decisions construing and applying the rules of evidence as to certain privileged communications, with a view toward indicating possible trends and developments or limitations, if any, in this field of the law of evidence. It is limited primarily to communications between husband and wife, attorney and client, physician and patient, and priest and penitent, with a short discussion of the so-called "novel privileges." The assumption is made that the reader is familiar with generally accepted definitions of the various privileges, as well as traditional limitations.' …

Self-Crimination Privilege: "Links In The Chain", Judson F. Falknor

Vanderbilt Law Review

"According to their [the prosecution's] statement, a witness can never refuse to answer any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of a crime. This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony' which is necessary to convict any individual of a crime. It appears to the Court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself...What testimony may be possessed, or is attainable, against any individual, the Court can never know. It …

The "Fourth Degree": The Lie Detector, Jack Streeter, Melvin M. Belli

Vanderbilt Law Review

Some police departments substitute for evidence the "third degree." It is illegal. Law courts could now supplement oral evidence with a "fourth degree"--the lie detector. It should be legal, when properly operated, when its results are properly introduced and weighed.

Any symposium on evidence ought to include some observations on cross-examination. A 'consideration of the instruments employable in the art of cross-examination should, of course, include a discussion of the instrument, the accepted use of which, some lawyers, and certainly the average layman, believe would make cross-examination unnecessary as to credibility.

The best legally available "lie detector" presently is a …

Some Developments In The Law Concerning Confessions, William Wicker

Vanderbilt Law Review

Our system of administering criminal laws is predicated upon accusatorial rather than inquisitorial proceedings. To maintain inviolate the safeguards consonant with this principle, we have placed upon the State an ever-increasing burden in proving the commission of the crime charged. That this burden has begun to weigh heavily, and perhaps onerously, becomes unmistakably evident from a study of recent developments in the law of confessions.

Requisite Proof Of Basis For Expert Opinion, John M. Maguire, Jefferson E. Hahesy

Vanderbilt Law Review

This article is about the factual foundation of expert opinion evidence. It is tentative, not dogmatic or even confident. It proposes for further consideration by others our effort at more precise shaping of doctrines which have become familiar but remained vague. These doctrines have to do with the degree of stringency which is and ought to be exercised in applying ordinary rules of evidential competency to proof of propositions of fact underlying or related to formulation and announcement of experts' opinions in litigated cases.

The Scope Of Summary Judgment Under The Federal Rules, Henry N. Williams

Vanderbilt Law Review

The Federal Rules of Civil Procedure provide that, under appropriate circumstances, either the plaintiff or the defendant may seek and obtain a summary judgment.' The detailed requirements of Rule 56 have been discussed elsewhere, and they will not be discussed herein other than as they aid in delineating the area covered by summary judgments. In determining the scope of Rule 56, the purpose of the rules as a whole must be considered as well as the effect of the discovery procedures of the rules. In addition the summary judgment rule must be explicitly distinguished from a motion for judgment on …

Expert Testimony, Mason Ladd

Vanderbilt Law Review

The opinion rule of exclusion and the use of expert testimony, like much of the law of evidence, developed out of the adversary system of trial. Not until the Eighteenth Century was the opinion rule established, and although the courts had used witnesses with special knowledge to assist them in obtaining needed information, expert witnesses were not used in the modern sense.' There were also inquisitorial hearings in which the inquisitors were all persons with specialized experience, but this was not similar to the use of experts today as the inquisitors determined the issue upon the basis of their own …

Evidence As A Problem In Communicating, Edward W. Cleary

Vanderbilt Law Review

The law of evidence is sagging to the point of collapse under its own weight. It has cracked visibly in the administrative sphere, and what saves it in the courts is probably a rather general ignorance of what is actually between the covers of Wigmore, plus the fact that lawyers and judges often seem to be downright ashamed to push the rules to their logical extremes. Evidence in action is, happily perhaps, somewhat different from evidence in books. Nevertheless, among people who are thoughtful about such things there is general agreement that something ought to be done.