Law Commons^™

Third-Party Liability And Adjustments Between Different Employers And Insurance Carriers In Tennessee, William J. Harbison

Vanderbilt Law Review

In this article the author discusses the Tennessee law as to the relative positions of employers and third party tort feasors in workmen's compensation situations. After discussing the employer's right to subrogation to his employee's right of action, the employer's right to a lien on any recovery in such an action, and the right of the third party to indemnity from the employer, he concludes by treating the problem of joint and successive employers, taking special note of the heretofore untapped resources of the Tennessee Second Injury Fund.

Some Recent Developments In The Substantive Law Of Workmen's Compensation, Wex S. Malone

Vanderbilt Law Review

After setting out the factors which make for change in the compensation structure, the author goes on to discuss three problem areas in which that change is clearly visible: distinguishing between employees and independent contractors, determining tho rights of a borrowed employee, and deciding whether an accident arose out of the employment. He concludes that the law of workmen's compensation is developing in consonance with the social philosophy which underlies it.

The Law Of Workmen's Compensation And Employers' Liability: A Selected List Of Materials 1950-1963, Cyril L. Mcdermott

Vanderbilt Law Review

Professor McDermott has compiled in this article a comprehensive reference guide to the materials of workmen's compensation law. In addition to general works, current specialized sources are arranged by jurisdiction for easy reference.

Covered Employment And Compensable Injury Concepts In Tennessee, Robert N. Covington

Vanderbilt Law Review

This article surveys the existing law of Tennessee applicable to the problems of determining what is covered employment and what constitutes a compensable injury. The survey indicates no radical differences between the law of Tennessee and that of most American jurisdictions,although there are a few troublesome problems in particular areas, such as the "Act of God" and "positional risk" cases.

The Scope Of The Depositor's Duty To Prevent And Discover Alterations And Forgeries Of His Checks, J. Timothy White

Vanderbilt Law Review

With billions of dollars worth of commercial paper changing hands daily, the business world cannot afford uncertainty as to the duties of the various parties to the paper, for uncertainty hinders negotiability. This is especially true in the case of the relationship between the drawer-depositor of a check and the drawee bank. Clearly the drawee may not normally debit the drawer's account when it pays a forged or materially altered instrument. However, when the drawer carelessly executes a check or does not bother to examine his checks when they are cancelled and returned to him, different considerations arise, altering the …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Antitrust Law--Restraint of Trade--Applicability of Section 7 of Clayton Act to Bank Mergers

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Constitutional Law--Appointment of Counsel for Indigent Defendants in State Criminal Trials

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Constitutional Law--Civil Rights--State Action--Effect of Standard Urban Redevelopment Land Use Covenant

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Constitutional Law--Free Exercise of Religion--Denial of Unemployment Compensation to Seventh-Day Adventist

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Constitutional Law--Self Incrimination--Effect of a Defendant's Comment on His Codefendant's Silence

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Labor Law--Ability of Individual Employee To Bring Suit Under Section 301 of Taft-Hartley Act

Trial Practice And Tactics In Employee Injury Cases -- The Plaintiff's Viewpoint, Benjamin Marcus

Vanderbilt Law Review

The author, a practitioner with extensive experience in the workmen's compensation field, sets out a number of "do's" and "don't's" for the successful representation of plaintiffs in employee injury cases, especially with regard to the handling of medical evidence. He also points out defects in the existing law, and calls upon the bar to fulfill its social role by supporting remedial legislation.

Criminal Law And Procedure -- 1962 Tennessee Survey, Robert E. Kendrick

Vanderbilt Law Review

The American states have generally codified in one form or other the common law "felony murder rule" to the effect that homicide committed while perpetrating or attempting a felony, and as a consequence thereof, is murder. Tennessee's statute in this regard, which largely follows the most widely adopted version of the rule in limiting it to specified felonies and in classifying homicides committed in connection therewith as first degree murder, was applied in two cases decided by the state supreme court during the survey period.

The Capital Gains "Holding" Dilemma, Allen Sultan

Vanderbilt Law Review

An important question under the capital gains provisions of the revenue laws is the meaning of the term "hold." The author studies judicial concepts of "holding" and concludes that inconsistencies have been introduced by judicial reaction to changing concepts of property. Noting that past legislative attempts to remedy the situation have been fruitless, he issues a call for "enlightened" congressional action.

Decedents' Estates, Trusts And Future Interests -- 1962 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

I. DECEDENTS" ESTATES

A. Intestate Succession-Release of an Expectancy B. Wills C. Fiduciary Administration and Estate Planning

II. TRUSTS

A. Self-dealing-Purchase by Trustees of One Beneficiary's Interest

III. FUTURE INTERESTS

A. Alternative Gifts B. Class Gifts As in the past, the subject matter will be discussed under the headings indicated above. The developments of the year consist of court decisions only, as the Tennessee legislature was not in general session.

Unfair Labor Practices, Individual Rights And Section 301, Irving Kovarsky

Vanderbilt Law Review

On December 10, 1962, the United States Supreme Court, in Smith v. Evening News Ass'n, established several principles of law which may rival the well-known decision of Textile Workers Union v. Lincoln Mills in importance. The purpose of this comment is to examine the far-reaching implications of Evening News and related Supreme Court decisions.

Creditors' Rights And Security Transactions -- 1962 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

Tanner v. Mobley presented the problem of who may bring an action to recover usury. The plaintiff in the action, brought to recover usury and purge a trust deed and note of usury, was the daughter-in-law and grantee of the maker of the note and trust deed. The note and trust deed were executed in 1952. In 1954 the property covered by the trust deed was conveyed to plaintiff in consideration of her promise to pay the note and care for the grantor. Plaintiff continued to make payments on the note for several years after the death of grantor in …

Equity -- 1962 Tennessee Survey, T. A. Smedley

Vanderbilt Law Review

I. Specific Performance--Statute of Frauds

II. Recission--Fraud and Mistake

III. New Trial After Judgment at law

IV. Injunction--Perpetration of a Nuisance

V. Recission--Return of Consideration

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 …

The Growing Need For Specialized Legal Services, Elliott E. Cheatham

Vanderbilt Law Review

In this lecture Professor Cheatham discusses the specialization of lawyers, a topic of increasing interest and importance to members of the bar. He concludes that while there is a need for specialists in the practice of law, the general practitioner remains vital to the profession.The author lists problems inherent in specialization including training in a particular area, and coordination and cooperation between the specialist, the client, and the generalist, and emphasizes a need for the bar to take an active part in the solution of these problems.

Capital Gains Tax: Significance Of Changes In Holding Period And Long Term Rate, Harold M. Somers

Vanderbilt Law Review

The capital gains tax. in this country has been subject to a number of changes in holding period and long-term rate. Once again, revisions are under consideration. The Administration's tax proposals of 1963 contemplate a change in the holding period from six months to one year and a change in the long-term rate from 50 per cent of the ordinary income bracket, with a maximum tax rate of 25 percent, to a simple inclusion of 30 per cent of long-term gains. With the proposed reduction in ordinary income brackets from a range of 20-91 per cent to a range of …

Agency -- 1962 Tennessee Survey, Edwin R. Render

Vanderbilt Law Review

Two cases decided during the survey period dealt with the existence or nonexistence of the agency relationship. While the agency relationship frequently arises out of contract, a contract is not necessary to the creation of authority in the agent. Consent of the principal is the basis of the agent's authority. Generally, the existence or non-existence of the agency relationship is a question of fact for the jury; but in the two cases to be discussed, Tennessee appellate courts reversed jury verdicts on the ground that there was no competent evidence in the record to support their findings... The other two …

Conflict Of Laws -- 1962 Tennessee Survey, Elliott E. Cheatham

Vanderbilt Law Review

Two cases involved Tennessee decrees of custody of children which altered the rights of custody prescribed by earlier decrees in other states. In both cases the court of appeals held the foreign decrees were not conclusive on the Tennessee courts because of change of circumstances since they were rendered. One of the foreign decrees was not conclusive, it is believed, for the further reason that in the out-of-state proceeding the custody of the children was not litigated and was evidently based on the consent of the parents. At this term the Supreme Court of the United States held such a …

Contracts -- 1962 Tennessee Survey, Paul I. Hartman

Vanderbilt Law Review

I. Revival of a Debt Barred by Statute of Limitations --An Acknowledgement by Debtor that He Owes the Debt as a Revival of the Cause of Action

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II. Rules for Determining Priority of Right Where Successive Assignees Competing for Same Claim --Applicability of those Rules in Contest Between an Assignee and Debtor whose obligation has been assigned

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III. Breach of Contract--Necessity for Tender of Performance by Promisee where Promisor cannot perform -- Rights of Promisee against Third Party inducing Breach of Contract

Administrative Law -- 1962 Tennessee Survey, Val Sanford

Vanderbilt Law Review

The writing of this article is an experience in frustration and despair, for in Tennessee there is little recognition of the existence of any such body of principle, of legal concepts and techniques, of procedures and practice, as "administrative law." There is one law, substantive and procedural, for beer boards, another for the Public Service Commission, another for the rate-making decisions of the insurance commissioner, another for employment insurance benefits,another for licensing well-diggers, and so on ad infinitum--a separate law, both substantive and procedural, not only for each agency, but often for each function within an agency. All of these …

Domestic Relations -- 1962 Tennessee Survey, William J. Harbison

Vanderbilt Law Review

The case of Folk v. Folk' dealt with a long-continued domestic dispute in which the husband sought unsuccessfully to terminate a separate maintenance decree. The litigation had begun in 1954 as a divorce suit by the wife. Although her prayer for divorce had been denied, she had been allowed separate maintenance from her husband because of his mistreatment of her. The chancellor in that action had provided that the separate maintenance payments should continue unless the wife should unreasonably reject a sincere attempt at reconciliation by the husband. The court of appeals had stricken this portion of the decree but …

Nlrb - Fepc?, Jeffrey M. Albert

Vanderbilt Law Review

One potential agency in the attack on racial discrimination in employment is the National Labor Relations Board. The President has indicated that substantial reliance will be placed on that agency for the vindication of Negro rights in areas of employment not covered by Executive Order 10925. Less than a year. ago the board's approach in this area was cautious and its proper role ill-defined and speculative.' Within the past year, however, the NLRB has moved rapidly by sharpening four, possibly five, anti-bias remedies. Three have roots in early NLRB decisions. The fourth is new. The fifth, resurrection of which has …

Local Government -- 1962 Tennessee Survey, Gilbert Merritt, Jr.

Vanderbilt Law Review

Local government cases usually make dry reading, but this year one unusual dispute gives some insight into the customs and court-house politics in one of Tennessee's smaller counties. The county judge and the county register of deeds (a lady) disagreed about office space in the courthouse. The county judge wanted to swap offices with the lady, but she refused. So after talking to the sheriff about it, the judge knocked holes in the lady's wall; whereupon she got an injunction. Judge Shriver, speaking for the court of appeals, said the sheriff could not give the judge permission to knock the …

Procedure And Evidence -- 1962 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Construction of Pleading--Where the plaintiffs bill of complaint for specific performance of a contract for the purchase of a specified parcel of realty discloses on its face that the agreement was oral, the defendant may raise the defense of the statute of frauds by demurrer.'

Burden of Proof and Presumptions--The current decisions do little to clear up the confusion caused by the use of the term presumption, though it is usually not too difficult to determine the effect intended to be given it in a particular case.

Judicial Notice--The cases in which the Tennessee courts have applied the doctrine of …

Restitution -- 1962 Tennessee Survey, John W. Wade

Vanderbilt Law Review

For the prevention of unjust enrichment of a defendant the courts make available a number of restitutionary remedies to a plaintiff. These remedies developed separately, and they differ somewhat in their characteristics, but during recent years writers have seen that there is a single principle underlying them all, whether they are administered at law or in equity.

Commercial Transactions And Personal Property -- 1962 Tennessee Survey, John A. Spanoale

Vanderbilt Law Review

The Code, and its repealer provisions, will not become effective in Tennessee until June 30, 1964. This delay gives the practicing attorney fifteen months to become familiar with its provisions. This amount of time will be needed for such education, for the Code is a very large and detailed piece of legislation, and little has been written comparing the present Tennessee law to the Code. It is not the purpose of this article to attempt to summarize the effect of the provisions of this legislation on the present Tennessee law, but only to give notice that it has been enacted …

State And Local Taxation -- 1962 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

I. Exemption of Religious Institution from Property Taxation--Taxation of Parking Lots and Cafeterias Operated by Exempt Institution for Employees

II. Apportionment of Income from a Multistate Unitary Business for Excise Tax Purpose--Inclusion of Income from Sale of Extra-State Land in Measure of Tax

III. Taxability as Income to Stockholder of Distributions from Massachusetts Trust--Distributions in Cash and Stock of Capital Gains from Sales of Securities

IV. Sales Taxes--Taxability of Contractor Installing Air Conditioning Equipment for Tax Exempt User

V. Penalties for Delinquencies in Sales and Use Taxes--Mistake as Basis for Relieving Against Penalty for Delinquencies

Constitutional Law -- 1962 Tennessee Survey, James C. Kirby, Jr.

Vanderbilt Law Review

I. Delegation of Legislative Power to Metropolitan Charger Commission

II. Right to Jury Trial: Special Findings Without General Verdict

III. Due Process of Law: In Personam Jurisdiction Over Nonresident Individual

IV. Due Process: Expulsion from Public University Without Hearing

V. Equal Protection: Legislative Apportionment

VI. Legislative Classification: Suspension of General Law for One County

VII. Legislative Classification: Exemption from Carrier Regulation

VIII. Equal Protection: Racial Discrimination

IX. Standing to Challenge Constitutionality

Corporations -- 1962 Tennessee Survey, Daniel J. Gifford

Vanderbilt Law Review

I. Jurisdiction Over Foreign Corporations--The Solicitation Plus Rule The extent of Tennessee's assertion of jurisdiction over foreign corporations was considered in Atchison, Topeka & Santa Fe Ry. v. Oritz' and Fisher v. Trion, Inc. by two of the Tennessee courts of appeal. Both cases are of interest because of their respective approaches to the so-called "solicitation plus" rule.

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II. Corporate Promotions Community General Hospital, Inc. v. Diehl involved an unsuccessful promotion of a hospital corporation. A preferred stockholder had brought a class action in the Chancery Court of Shelby County for the appointment of a receiver to carry out …

Insurance -- 1962 Tennessee Survey, Robert N. Covington

Vanderbilt Law Review

The courts of Tennessee were confronted by a number of interesting problems of insurance law during 1962. For the most part, the results were neither startling nor unsettling. There were, however, decisions that seem to qualify previous opinions, sometimes without citation, and there was one very troublesome opinion concerning credit life insurance.