Law Commons^™

Insurance Coverage Against Explosion Damage, William C. Brewer Jr.

Vanderbilt Law Review

Astronomers tell us that the world began with an explosion, and common sense tells us that it may end with one. Today, the explosion is the symbol of the corruption of knowledge. It has always suggested the devastation of property and the tragedy of death, reminding us that man is never in full control of the forces he has loosed for his material benefit. When accidental explosion became frequent enough for consideration by actuaries, it became a natural subject for insurance. It is proposed here to survey the contractual provisions under which explosion may be insured, and to examine briefly …

Contracts -- 1960 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

During the period covered by this survey, the Tennessee courts have had occasion to decide some rather basic questions in the law of contracts. These cases are the subject of comment. Other cases involving only questions of burden of proof regarding contracts questions have not be commented on.

Bills And Notes -- 1960 Tennessee Surveys, B. Gilreath

Vanderbilt Law Review

The fact that there was only one reported Tennessee decision during the survey period for 1958, none in 1959 and again only one for 1960, is a high tribute to the settled condition of the law of negotiable instruments, and the knowledge and wisdom of the lawyers of that state. When the law on any subject is settled and known men can make their contracts and engage in their transactions with security; uncertainty breeds doubt, confusion, strife, litigation and loss.

Agency -- 1960 Tennessee Survey, Warren A. Seavey

Vanderbilt Law Review

In Richardson v. Snipes' both parties to an exchange of land employed the plaintiff, the contract providing that the defendant would pay no commission unless the transfer was completed. The other party satisfied the conditions imposed by the defendant, who, however, refused to go through with the exchange. The court properly reversed judgment for the defendant; but the result should not have turned upon the finding of bad faith of the defendant, as the court held. The plaintiff had performed his undertaking which was to provide one who would exchange titles and who would have gone through with the transaction …

Domestic Relations -- 1960 Tennessee Survey, William J. Harbison

Vanderbilt Law Review

Domestic Relations--1960 Tennessee Survey

I. Adoption of Children

II. Persons in Loco Parentis

III. Divorce, Alimony and Counsel Fees

1. Venue

2. Jurisdiction

3. Cancellation of Decree

4. Alimony and Counsel Fees

(a) Discretion To Deny Alimony

(b) In Solido--In Futuro

(c) Duty To Pay Counsel Fees

(d) Court Alteration of Support Agreement

(e) Attachment of Property-Non-Residents

5. Jointly-owned Property

IV. Family Immunity in Tort

V. Tenancy by Tenancy by the Entireties

Constitutional Law--1960 Tennessee Survey, James C. Kirby Jr.

Vanderbilt Law Review

Eminent Domain--Just Compensation.-Landowners sued the Tennessee Commissioner of Highways and Public Works for compensation for a taking of property for the state's superhighway program in Brooksbank v. Leech. The trial court sustained a demurrer on the ground that the suit was barred by sovereign immunity. In order to dispose of this question on appeal the supreme court first determined whether the legislature had provided an adequate statutory method for just compensation, the absence of which would have rendered the taking unconstitutional under both article I, section 21, of the Constitution of Tennessee and the due process clause of the United …

Creditors' Rights And Security Transactions -- 1960 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

Two cases involving mechanic's liens were decided during the period under survey. Rowland v. Lowe' presented the question of the validity of a material men's lien against the owner of land subject to a contract of sale which required the purchaser to erect improvements on the land. In order to protect the vendor's lien, which was to be retained in the deed, the contract provided:

"The purchaser obligates himself to pay all sums for labor and materials in the construction of the improvements on said lot, and in no event shall there be any lien on the lot of ground …

Insurance -- 1960 Tennessee Survey, William R. Andersen

Vanderbilt Law Review

One of the most delicate problems in insurance underwriting is that of describing the events whose occurrence is the primary condition of the insurer's obligation to pay. Several interesting cases were decided during the survey period involving disputes over whether or not an insured event had occurred.

Personal Property And Sales -- 1960 Tennessee Survey, Gilbert S. Merritt Jr.

Vanderbilt Law Review

A foreigner given to rash generalizations would quickly conclude upon reading this year's sales and personal property cases that the three most flourishing and litigation-producing institutions in Tennessee are the automobile, the General Motors Acceptance Corporation and bootlegging. The automobile is responsible for all five of the cases covered in this survey; in four of the five the General Motors Acceptance Corporation is the defendant; and two of the five grow out of bootlegging activities.

Real Property -- 1960 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

It is unfortunate that the statutes in this state on which such decisions as the instant one are based have not long since been repealed or modified. It is becoming more and more apparent that the courts cannot be expected to lessen the oftentimes arbitrary and seemingly unjust result which flows from the literal application of these statutes. The instant case would have been an excellent one in which to permit the defendant to establish the title of his grantors on the merits. But in spite of the desirability of relaxing the rigorous enforcement of such statutes, the court continues …

Labor Law And Workmen's Compensation -- 1960 Tennessee Survey, Paul H. Sanders, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

Labor law is concerned with the rules governing the various phases of the employment relation and the activities of employers and labor organizations vis-a-vis such phases. Sometimes such rules are embodied in criminal law or tort law. If the substance of the alleged crime or tort is not directed toward or used in some respects as a regulation of employment or labor relations, it is excluded by the above definition even though some "labor" aspect is prominently identified with the case. For example, during the survey period the Supreme Court of Tennessee decided the case of Smith v. State, affirming …

Local Government Law -- 1960 Tennessee Survey, A. E. Ryman, Jr.

Vanderbilt Law Review

This survey is directed to the law peculiar to local government. Although nearly every case involves law applicable to parties other than governmental agencies, the focus of attention here is on the aspects peculiar to such agencies. Critique of the law of general application is not within the scope of this article. Although "Elections and Representation" could be treated (as it was last year) under the topic of "Relations of Local Government and Private Persons," it is separated here to emphasize the logical distinction between laws concerned with the creation of governmental agencies on the theory that power is derivative …

I Am Not My Guest's Keeper, Warren A. Seavey

Vanderbilt Law Review

The laisez-faire policy of the common law recently won a resounding victory in Pennsylvania. In an action for the death of her husband, the plaintiff alleged that he was invited by the defendant to visit the latter's land for a consultation upon problems common to their work, strip-mining for coal, which requires deep cuts in the land from which it is necessary to remove accumulated water; that during the conversation the defendant invited the deceased to aid in the repair of a pump in one of the water-filled cuts; that the defendant, by "urging, enticing, taunting and inveigling" his visitor, …

Cost Adjustment In Utility Rate Schedules, Joe H. Foy

Vanderbilt Law Review

For many years public utilities and regulatory commissions have been greatly concerned over the time and expense involved in proceedings relative to utility rates. Few types of legal proceedings are more complex, intricate and expensive than the full-blown utility rate case, with its myriad problems in valuation, economics, accounting, law and engineering. Particularly during inflationary periods, such as the present, mounting expenses of operation confront utilities and commissions with the dismal prospect of repeated applications for rate adjustment and formal hearings thereon. It is not surprising that techniques have been sought to simplify the rate making process, consistent with the …

Promissory Estoppel, James O. Bass Jr.

Vanderbilt Law Review

The general nature and application of the doctrine of promissory estoppel' has been thoroughly discussed in the past by very able commentators. It is not the purpose of this note to enlarge upon these analyses. However, as a basis for a summary of the present status of the doctrine, perhaps a brief review is in order. No proposition of law is more familiar to the legal profession in general than the rule that consideration consists of any legal detriment incurred by the promisee, which was "bargained for and given in exchange for the promise.' There are numerous situations in which …

Book Note, Law Review Staff

Vanderbilt Law Review

James Boswell, whose Life of Johnson is generally recognized to be "the most skillfully written biography in the English language, was an eighteenth-century Scottish lawyer, as well as a prominent literary figure. Boswell's private papers, including his now-famous Journal in which he recorded the day-to-day events of his life during most of his adult years, are owned by Yale University; Boswell for the Defense is the seventh volume in the series of Yale Editions of the Private Papers of James Boswell and covers a five-year period of his life (from ages 29 to 34), a period of "sustained application to …

Public Speech And Public Order In Britain And The United States, Richard E. Stewart

Vanderbilt Law Review

This paper will not attempt a general comparison of free speech in Britain and the United States. It concentrates on one aspect of the free speech problem. That aspect is speech that does or may lead to a breach of the peace by the audience.'

Non-Tax Aspects Of Thin Incorporation, Thomas H. Rainey Jr.

Vanderbilt Law Review

The coveted privilege of conducting business in the corporate form is not an unconditional grant.' As consideration for granting the corporate privilege of doing business with limited liability, the law requires that the shareholders "put at the risk of the business some stake which shall appear reasonably adequate for its prospective needs." This "stake," characterized as equity capital, represents that portion of the shareholders' capital investment which is required by law as the basis of financial responsibility for the protection of corporate creditors. This special fund is substituted for the personal liability which the participants would otherwise have for the …

Book Reviews, Lee S. Greene, Earl F. Murphy (Reviewer)

Vanderbilt Law Review

Index Digest of State Constitutions:

This is a revision of the first edition of Index Digest of State Constitution prepared in 1915 for the use of the New York State Constitutional Convention of that year. Both the first and the present second edition were prepared by the Legislative Drafting Research Fund of Columbia University. The editor of the present volume was Richard A. Edwards, who worked with the aid of associate editors James L. Blawie and Marilyn B. Blawie. Over forty years have passed since the first Index Digest appeared.This has been a period of some rewriting of state constitutions,considerable …

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 …

Wrongful Death-Bases Of The Common Law Rules, T. A. Smedley

Vanderbilt Law Review

One of the oft-sung glories of the English common law is the vitality of its many rules which evolved originally from ancient custom, usage, tradition and experience. This truly amazing vitality has the virtue of imbuing the law with stability, of providing legal sanction for established commercial practices, of protecting vested property interests, and of furnishing some measure of predictability of decisions. Unfortunately, it also serves to perpetuate the force of some rules far beyond the period of their usefulness and to maintain their influence after the reason for their existence has been long forgotten.'Such was the case in regard …

United Nations General Assembly--A Captive Of Its Own Procedures, Erle Cocke Jr.

Vanderbilt Law Review

The work of the Assembly is hindered by its tedious parliamentary procedures. Its procedures should be expedited. A thorough review of these procedures and practices has been had only twice. Consideration of the procedures of the Main Committees where most of the work is done has not been had since the Fourth Session of the United Nations General Assembly. The laggard work of the Assembly increases the cost, places a great burden on the Foreign Offices of member Nations, and hinders the Assembly's efficiently discharging its functions. These functions have grown far beyond those originally intended, and the membership of …

The Real Estate Broker's Undertaking, William E. Wallace

Vanderbilt Law Review

In earlier articles I have discussed problems dealing with the enunciation and expression of listing agreements, their formal import' and the effect of one important segment of many of the attendant" payment" clauses. The former article concerned itself with the general problem of the relationship existing between a real property owner and his broker, while the latter dealt with the significance of words by which the payment clause of a brokerage agreement was introduced and with the effect of a wrongful default by the landowner. The present article will consider the legal significance of the actual terms employed to designate …

Disqualification Of Administrative Officials For Bias, Robert N. Covington

Vanderbilt Law Review

For centuries English and American writers on jurisprudence have been concerned with the problem of the impartial tribunal. With the rise in importance of the administrative agency, which often may function as investigator, prosecutor, and judge in the same proceeding, this concern has found a new focal point.' This note is designed to explore one question arising from the problem of administrative prejudice: When should an administrative official be disqualified from acting because of his bias? In investigating this problem, we shall examine the various formulas developed by the courts before whom disqualification has been urged; call attention briefly to …

Libel Per Se And Special Damages, Alfred H. Knight Iii

Vanderbilt Law Review

Toward the end of the last century a few of the American courts began to express the view that allegation and proof of special damages is necessary in libel actions unless the defamatory meaning of the words is apparent on their face.' Although none of these courts appeared to realize it, this notion was entirely of their own invention. Under the orthodox theory, which went virtually unquestioned in the century preceding these decisions, all written defamation is actionable without proof of special damages, whether it is designated libel per se or libel per quod. Words which are defamatory on their …

Tax And Other Legal Aspects Of The Corporate Practice Of Medicine, Jerry B. Martin

Vanderbilt Law Review

With the coming of regulations allowing doctors the tax advantages of corporate employees, the doctors will probably be more solidly behind the positions of the AMA in favor of the prohibition against the corporate practice of medicine. For example, at least one state group, the Tennessee State Medical Association, has recently adopted a resolution against practicing medicine in the corporate form, and there have been no recent reports of state associations taking the opposite position. The American Hospital Association which seems to lead the opposition to the corporate practice rule does not attack the rule as being intrinsically bad but …

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 …

Deferred Compensation Plans: Qualifying For Non-Qualified Treatment, James F. Neal

Vanderbilt Law Review

For an important number of people in our "affluent society," the problem of spreading large current earnings, and the federal income tax imposed thereon, over a number of years has taken on sizeable proportions. Only slightly helpful for some of these people are the deferred compensation provisions of sections 401 through 404 of the Internal Revenue Code of 1954 (hereinafter referred to as the Code).'Consequently, many highly paid executives must still resort to other arrangements. The purpose of this paper is to explore the present status, from an income tax standpoint, of those non-qualified arrangements between employers and employees which …

The Constitution And The Standing Army: Another Problem Of Court-Martial Jurisdiction, Robert D. Duke, Howard S. Vogel

Vanderbilt Law Review

With the emergence of the Soviet menace after World War II, the United States has, for the first time in its history, found it essential to maintain, both here and abroad, a large standing armed force in what is technically peacetime. That has in turn brought to the fore important and novel questions concerning the jurisdiction which courts martial may constitutionally exercise. With millions of Americans serving and likely to serve in the armed forces, it is to be expected that the Supreme Court will scrutinize, with more care than ever before, legislation which purports to strip from these"citizen soldiers" …

A Variety Of Freedoms, Stanley D. Rose

Vanderbilt Law Review

The Idea of Freedom: A Dialectical Examination of the Conceptions of Freedom By Mortimer J. Adler Institute of Philosophical Research. Garden City, New York: Doubleday and Co. 1958. Pp.xxvii, 689. $7.50 . . .

Each year a number of books appear which are devoted to the subject of freedom. This has been going on for at least two thousand years. But a reading of only a few of this multitude of volumes will show that one man's freedom is not necessarily another man's. It appears obvious that some order and classification ought to be introduced into our thinking about this …