Law Commons^™

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Torts--Lex Loci Delicti Is Proper Law When Parties Are Domiciled in Different Jurisdictions Unless Displacing That Law Advances Forum State's Substantive Law Purposes Without Impeding Interstate Relations or Predictability of Result

Plaintiff, an Ontario domiciliary, brought an action in New York for the wrongful death of her husband, also a domiciliary of Ontario,who was killed in a collision in that province' while a passenger in an automobile driven by defendant's intestate, a New York domiciliary. Defendant pleaded as an affirmative defense the Ontario guest statute, which restricts a guest's recovery to damages for injuries sustained only as a …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Due Process--Replevin Statutes Allowing Seizure of Property Without Notice and Opportunity for Hearing Violate Due Process Clause of Fourteenth Amendment

Constitutional Law--Right to Counsel--Absent Waiver,No Defendant May Be Imprisoned Unless Represented By Counsel At Trial

Federal Rules of Civil Procedure-Class Actions-Class Action Alleging Similar Injury by Separate Defendants Who Acted Similarly but Independently Allowed Under Rule 23(b)(3)

Securities Regulation--Securities Act of 1933-Access Of All Offerees To Additional Desired Information Required For Section 4(2) Private Offering Exemption

Torts-Joint Tort-feasors--Apportionment of Damages Among Negligent Joint Tort-feasors Based upon Relative Responsibility of Parties

Recent Development, Law Review Staff

Vanderbilt Law Review

This Comment will explore the origin, evolution, and refinement of the common-law classifications, with particular focus upon recent decisions abrogating these distinctions in favor of a broader standard of ordinary care under the circumstances.

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The problem of defining a landowner's' responsibility toward persons who come upon his premises has been the subject of longstanding controversy. While some commentators have argued that the limited responsibility placed by the common law on landowners does not comport with modern principles of negligence liability proponents of the common-law standards have urged that the common-law scheme of entrant classes--trespasser, licensee, invitee--provides a workable approach …

Mr. Wade And Wade Torts, James H. Wildman

Vanderbilt Law Review

We, his students, have never called him "Mr. Wade;" nor have we called him "Professor Wade." These words do not sound even faintly familiar. Yet Mr. Wade can rightfully claim major responsibility for the causal connection between Vanderbilt law student and Vanderbilt lawyer. Indeed, in this connection, the sine qua non rule applies to Mr. Wade. To the older of us, much of the detail of his visage and style have doubtless been lost--the jabbing hand, the lanky, angular figure, the Abe Lincoln face, the outstretched arms with fingers intertwined, the hands thrust deeply into pockets jingling change, and the …

Some Implications Of The Constitutional Privilege To Defame, Robert E. Keeton

Vanderbilt Law Review

In this issue of the Vanderbilt Law Review we honor an extraordinary scholar, teacher, and Dean. It is a happy circumstance that the editors have offered us this opportunity at a time when we can confidently predict that Dean Wade will continue to serve us with great distinction in years ahead. The present article concerns some pending problems in the law of defamation that have already attracted Dean Wade's active interest. This seems a particularly fitting subject for inclusion in a symposium celebrating not only his distinguished past service but also a commencement incident to his release from decanal responsibility.

Defective Products: Abnormal Use, Contributory Negligence, And Assumption Of Risk, Dix W. Noel

Vanderbilt Law Review

This article will attempt to analyze these three general kinds of conduct on the part of the plaintiff, giving attention to basic tort principles and to traditional distinctions. Special emphasis will be placed on the functions of court and jury in resolving questions posed by situations in which injury is caused both by a defective product and by the plaintiff's handling of that product. It will be shown that a court's choice of policy factors as a basis for strict liability may affect considerably its final decision.

The Legal Paraprofessional: An Introduction, Elliott E. Cheatham

Vanderbilt Law Review

In this country, persons who have not been admitted to the bar are widely used in law offices. In fact, A Lawyer's Handbook, edited by the American Bar Association's Committee on the Economics of Law Practice, devotes an entire chapter to the nonlawyer employee. Investigators and accountants are common and legal secretaries are universal. There are pressing questions on what more should be done to utilize laymen in making legal services available. This issue of the Vanderbilt Law Review considers the paraprofessional in law. The Symposium opens with an article by Mr. William P. Statsky. In his discussion, The Education …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--Treble Damage Actions--Private Litigant Whose Injury Was Reasonably Foreseeable Has Standing To Sue

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Constitutional Law--Free Exercise of Religion--First Amendment Violated by Compulsory Education Statute that Prevents a Parent from Raising His Children According to His Religious Beliefs

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Constitutional Law--Immunity Statutes-Section 201 of Organized Crime Control Act of 1970, Which Provides Only Use and Fruits Immunity, Violates Fifth Amendment

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Constitutional Law-Search and Seizure--AFDC Caseworker's Visit to Home of Nonconsenting Welfare Recipient Not Prohibited by Fourth Amendment

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Consumer Protection Law-Standing -United States Has Standing To Seek Injunction Against Practice of Obtaining Default Judgments Through False Affidavits Certifying Service …

Comments On Maki V. Frelk--Comparative V.Contributory Negligence: Should The Court Or Legislature Decide?, Fleming James Jr., Harry Kalven Jr., Robert E. Keeton, Robert A. Leflar, Wex S. Malone, John W. Wade

Vanderbilt Law Review

Believing that the holdings and opinions in the case of Maki v. Frelkare significant legal developments, the Vanderbilt Law Review has solicited comments on these decisions, which it is now pleased to publish. These comments by six distinguished torts teachers and writers bear on the relative merits of comparative and contributory negligence, but more importantly, they discuss whether the judicial or legislative method is most appropriate for adoption of a rule of comparative negligence. It is hoped that these comments will be used as a sound basis for action, whether the problem arises before the courts or legislatures.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Significant Interest Doctrine Extended to Marital Property Litigation

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Constitutional Law-Search and Seizure--Fourth Amendment Restrictions Apply to Electronic Eavesdropping When Conversations Are Private--Physical Trespass Test Discarded

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Constitutional Law-Section 5(a) (1) (D) Prohibiting Members of Communist-Action Organizations from Employment in Defense Facilities Held Unconstitutional Infringement Upon Freedom of Association

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Criminal Law--Evidence-Unauthorized Juror View Violates Sixth Amendment Right to Confrontation

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Domestic Relations--Intentional False Representation of Pregnancy Grounds for Annulment

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Income Tax--Corporations--Attorneys' and Accountants' Fees Incurred in Sale of Assets Pursuant to a Section 337 Liquidation Are Not Deductible

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Interest--Usury--Charging Debtor with Statutory Maximum Loan Fees …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Conspiracy To Eliminate Discounters From Automobile Market a Per Se Violation of Sherman Act

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Antitrust Law--Merger of Two Major Competitors in Industry with History of Concentration Violates Section 7 of Clayton Act

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Criminal Law--Future Confessions Will Be Inadmissible Unless Specified Pre-trial Procedures Are Followed

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Juvenile Courts--Juvenile Delinquent Entitled to Hearing On Question of Waiver of Jurisdiction

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Labor Law--Public Carrier Can Make Unnegotiated Unilateral Changes in Collective Agreements When "Reasonably Necessary" To Maintain Service

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Labor Law--In Future NLRB Elections, Employer Must Furnish List of Employees' Names and Addresses

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Taxation--Thin Incorporation Not Tantamount to Disqualification …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Advertising--Undisclosed Use of Simulations In Television Commercials--a Deceptive Practice

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Antitrust Law--News Service Package Contract, a Tying Arrangement under Section I of the Sherman Act

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Antitrust--Union-Employer Agreements as to Labor Demands To Be Sought From Other Employers

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Constitutional Law--Laws Prohibiting the Use of Contraceptives by Married Couples for the Prevention of Conception Are Unconstitutional

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Constitutional Law--Rights of Addressee To Receive "Communist Political Propaganda" Protected Under First Amendment

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Federal Courts--Erie Doctrine Not the Test for Applicability of Federal Rules of Civil Procedure

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Constitutional Law--Televising of Criminal Trials Held Violative of the Right to a Fair Trial …

Equity -- 1964 Tennessee Survey, W. W. Garrett

Vanderbilt Law Review

In 1956 in the case of Langford v. Vanderbilt University, the Tennessee Supreme Court recognized the existence of a common law right of privacy. The Court of Appeals, Western Division, in Kyritsis v. Vieron, now holds that injunction does not lie to protect a personal right. The suit arose in the chancery court of Shelby County. Complainant alleged he was pastor of the Saint George's Greek Orthodox Church affiliated with the Greek Orthodox Church of North America and Canada, and that defendant was pastor of the Church of the Annunciation affiliated with the Greek Orthodox Archdiocese of North and South …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Attorneys--Interstate Legal Services and the Unauthorized Practice of Law

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Conflict of Laws--New York Public Policy Permits Enforcement of Foreign Gambling Obligation

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Conscientious Objectors--Universal Military Training and Service Act--Supreme Court Test of"Belief In A Relation to A Supreme Being

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Constitutional Law--Abatement of Convictions Occurring Prior to Passage of Civil Rights Act of 1964

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Escheats--Disputes Between States Concerning Unclaimed Corporate Obligations

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Labor Law--Failure To Bargain--Employer Required To Bargain With Respect to His Proposal To Contract Out Work

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Professions--Canon Twenty of the Canons of Professional Ethics Interpreted To Ban Statements to News Media

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Taxation--Corporate Income Taxation--Merger …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Violation of Section 7 of the Clayton Act by Joint Venture

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Civil Rights--Anti-discrimination Law as a Vehicle for a Private Civil Action

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Condemnation--Landowner Cannot Recover From Federal Government for Damages Caused Before Date of Taking Where Government Did Not Previously Contemplate, Condemning Property

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Constitutional Law--Loss of Nationality--Foreign Residency Statute Held Violative of Due Process

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Constitutional Law--Reapportionment--Both Houses of a State Legislature Must Be Based as Nearly as Is Practicable on Population

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Constitutional Law--Twenty-first Amendment--Scope of State Power Over Intoxicants Moving Within Its Borders

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Evidence--Statutory Presumptions--Reasonableness Is Implicit in Test of Rational Connection

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Torts -- 1963 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The elements of a valid cause of action in negligence are specifically enumerated by Justice Holmes of the Tennessee Supreme Court in the case of Ruth v. Ruth:

1. A duty of care owed by the defendant to the plaintiff.

2. A failure on the part of the defendant to perform that duty.

3. An injury to the plaintiff resulting proximately from the defendant's breach of that duty of care.

This outline will be used for the treatment of general questions of negligence, and particular fact situations will then be subsequently treated.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust--FTC Proceeding Will Not Toll the Statute of Limitations in an Action Under Section 4(b) of the Clayton Act

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Conflict of Laws--Where None of the Beneficiaries Reside in Forum State, Limitation on Amount of Recovery Imposed by State Where Tort Occurred Governs

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Criminal Law--Double Jeopardy--Conviction of Greater Degree of Offense on Retrial

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Federal Rules of Civil Procedure--No Requirement that Agent Appointed To Receive Service of Process be Expressly Bound To Give Notice to Principal

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Labor Law--NLRA--Union's Duty To Represent Fairly

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Labor Law-Walsh--Healey Act--Secretary of Labor Not Authorized To Set More Than One Prevailing Wage

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Hart And Honore, Causation In The Law, John H. Mansfield

Vanderbilt Law Review

It is scarcely necessary at this date to give notice of the publication of Causation in the Law. Since its appearance four years ago the book has become widely known and has been much discussed by legal scholars, particularly in the fields of torts and criminal law. Doubtless it has received similar attention from philosophers, for it is a work that seeks to achieve something which is seldom attempted, and then with little success, namely, to combine legal and philosophical thinking in a way that secures the understanding and approval of both philosophers and lawyers by satisfying the analytical rigor …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Administration of Justice-Federal Rules of Civil Procedure--District Court Has No Power To Penalize Counsel for Delay Which Violates Standing Orders of Court

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Carriers--Routes-Action for Reparation Available Under Motor Carrier Act for Unreasonable Routing Defendant motor carrier transported shipments for plaintiff shipper

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Constitutional Law--Full Faith and Credit--Collateral Attack on Errors of Court of Prior Forum

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Restraint of Trade--Labor Law-Where Defendants Stipulated They Were Independent Contractors and Joined Union To Fix Prices, Having No Other Legitimate Union Interest, Membership May Be Terminated Under Sherman Act

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Domestic Relations--Annulment--Female Impotence Is Made Curable by the Surgical Creation of a Functional …

Conflict Of Laws -- 1961 Tennessee Survey (Ii), Elliott E. Cheatham

Vanderbilt Law Review

Jurisdiction of courts over foreign corporations is a developing subject. Almost all aspects of it are touched on by decision or discussion in two cases in different courts and under different statutes; one case was in the Supreme Court of Tennessee, the other in the United States district court.

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Tucker v. International Salt Co. was an action in a state court in contract and quasi-contract against a Pennsylvania corporation.

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Shuler v. Wood was an action in tort in the United States District Court for the Eastern District of Tennessee against two Pennsylvania corporations.

Agency -- 1961 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

The topic "agency" includes the areas of "master and servant" as well as those of "principal and agent." There were few cases in these areas decided by the Tennessee courts during the period under survey. Generally, basic principles were applied to routine cases.In certain instances the reliance upon a prior fact determination avoided the necessity of an elaborate treatment of the facts. In one or two cases the court reached a result that may not be deemed desirable though supported by much authority. Significant points received less attention than they deserved in certain cases. In one case the basic question …

Workmen's Compensation -- 1961 Tennessee Survey, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

Two bills amending the Workmen's Compensation Law' were enacted during the survey year. The first placed a limit of $12,500 on compensation payable for any permanent partial injury, not limited to those set forth in the schedule. It also added the following self-explanatory sentence to the first paragraph of section 50-1027, Tennessee Code Annotated: To receive benefits from the Second Injury Fund, the injured employee must be the employee of an employer who has properly insured his workmen's compensation liability or has qualified to operate under the Tennessee Workmen's Compensation Law as a self-insurer. The second amendment changed the definition …

Conflict Of Laws -- 1961 Tennessee Survey, Elliott E. Cheatham

Vanderbilt Law Review

1. Non-Resident Motorists.-The statute subjecting non-residents to suit in Tennessee for injuries inflicted within the state has been extended by interpretation to non-resident parents who join in their minor child's application for a driver's license.

2. Watercraft.-The principle of the non-resident motorists statutes has been applied to watercraft by a statute entitled "Operation of watercraft in state as appointment of agent for process."

III. Support In Thomas v. Thomas a woman had been granted a divorce in Tennessee and custody of the children of the marriage, with a decree of support for the children against the father but with it …

Torts -- 1961 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

The tort cases reported during the past year were of unusual interest. A number of them dealt with points of first impression in this state. Others represent developments of the law designed to bring it into harmony with changing conditions, as in the application of the res ipsa loquitur doctrine to the unexplained fall of an air-liner, or in the clarification of the duties of an automobile driver to a mere licensee in the vehicle. While the basic pattern for justice in the field of torts has been worked out by our courts with much care and wisdom, occasional modifications …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Freedom of Speech--Prior Restraint on Motion Picture Exhibition

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Criminal Law--Murder--Year and a Day Rule Rejected in Pennsylvania

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Real Property--Restraints on Alienation--Conveyance Giving Housing Cooperative First Option to Buy and Right to Redeem is not an Invalid Restraint on Alienation

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Taxation--Income Tax--Uncompensated Casualty Loss Due to Drought Allowed as Section 165 Deduction

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Torts--Negligence--Fireman in Performance of Duties Allowed Recovery as Invitee

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 …

Torts -- 1960 Tennessee Survey, John W. Wade

Vanderbilt Law Review

As usual, there were about forty reported Torts cases this year. There were no striking new developments. Many of the cases were merely routine, some of them indeed carrying quite long opinions without deciding anything which will give them real value as precedents for the future. The great majority of the cases involved actions for negligence, considerably more than half the cases being concerned with traffic accidents.

Ancillary Rights Of The Insured Against His Liability Insurer, Robert E. Keeton

Vanderbilt Law Review

The primary right of the insured against his liability insurer is the right to reimbursement of loss falling within the coverage defined in the policy. The scope of that right is ordinarily determined by construction of the clauses defining the Bodily Injury Liability and Property Damage Liability Coverages.' The present article is concerned with ancillary rights, arising in part from these and other policy provisions and in part from the relationship created by liability insurance. These rights of the insured are, from the opposite point of view, duties of the insurer--duties concerned principally with settlement of the tort claim or …

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

Remaining Tort Liability Of Employers And Third Parties Under Workmen's Compensation Statutes, Ben F. Loeb, Jr.

Vanderbilt Law Review

Workmen's compensation is a mechanism designed to provide cash benefits to employees to recompense for loss of wages due to injuries sustained in work-connected activities. Theoretically, the cost of the program is charged to the consumer by increasing the price of goods and services sold to the public. An employee, covered by a compensation act, is entitled to payments if he is injured by an accident arising out of and in the course of his employment; and the fact that such employee was at fault or guilty of negligence himself is normally of no consequence.

Compensation benefits, in contrast to …