Law Commons^™

Motor Carrier Taxation, Hal H. Hale

Vanderbilt Law Review

Provisions of the Federal Aid Highway Act of 1956 vastly expanded the federal role in highway improvement on a long range basis, especially with respect to the so-called Interstate System. Authorizations of highway aid were further increased substantially by Congress in legislation enacted in 1958. The 1956 act for the first time also provided that the funds to pay for federal aid highway programs should come from specified levies upon highway users and a highway trust fund was established for this purpose. Owing principally to cost increases exceeding the original estimates, it has become apparent since the 1956 act was …

Regulation Of Motor Carrier Securities, Eugene T. Liipfert, John L. Mechem

Vanderbilt Law Review

The origins of the intercity trucking industry were humble. The development of the motor truck and of an intercity highway system which made its use in the transportation of freight practicable led many enterprising individuals to set themselves up as intercity truckers during the decade between 1925 and 1935. Capital requirements were minimal. The initial investment was frequently no more than the down payment on the motor vehicles employed. In the early stages of development, the typical motor carrier was a sole proprietorship, partnership or family-held corporation which relied for its financing on retained earnings of the business and hand-to-mouth …

Variable Verbalistics -- The Measure Of Persuasion In Tennessee, Kenneth L. Roberts, William M. Sinrich

Vanderbilt Law Review

In a trial one party always has the affirmative burden of persuading the finder of fact to adopt his allegations as true. This burden is met by inducing a particular degree of belief in the mind of the fact finder.'Manifestly, absolute truth is not attainable in a lawsuit. Rather certain facts are found to exist from all the evidence presented and these findings labeled true for the purposes of the case. Since different factual situations require different measures of persuasion, it is necessary that the fact finder, whether judge or jury, know and understand the particular measure applicable in order …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Conflict of Laws--Jurisdiction--Assumption of Personal Jurisdiction over Non-Resident Insurer on the basis of a Single Insurance Contract

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Constitutional Law--Taxation--Tax Immunity of Federal Government not Infringed by Local Taxes upon Possession of Government Property

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Evidence--Hearsay--Utterance of Employee under Emotional Stress Admissible to Establish Scope of Employment and Render Employer Vicariously Liable

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Insurance--Automobile--Duplicating Recoveries allowed under Liability and Medical Payment Clauses of Automobile Liability Insurance Policy

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Insurance--Business Indemnity--Radiation Decontamination Expenses not Recoverable under a Business Interruption Clause

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Insurance--Life--Variable Annuity Contracts not Subject to Regulation by Securities and Exchange Commission

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Physicians--Unprofessional Conduct--Willful Evasion of Federal …

Book Review, Law Review Staff

Vanderbilt Law Review

The National Probation and Parole Association has been working for over 35 years to improve the administration of justice and in the publication of "Guides for Sentencing" it has provided one of its most important services to judges who are charged with the administration of criminal justice and to juvenile and domestic relations courts. The book is the first of a series of practical manuals for all of the above named courts and it is the result of the combined labors of 37 specially selected United States, state and juvenile judges for a period of about five years. Bolitha J. …

Motor Carrier Regulation--An Adventure In Federalism, Val Sanford

Vanderbilt Law Review

By virtue of the nature of our federal system every attempt to regulate extensive economic activity involves constantly recurring problems as to the proper allocation of governmental power between the state and national governments, and thus problems as to the proper balancing of local or state and national interests. The development of motor carrier regulation in the United States has been controlled by the general concepts of federalism and exemplifies the nature of the basic problems inherent in those concepts. The purpose of this article is to examine the regulation of motor carriers from the standpoint of the allocation of …

Some Aspects Of The Problem Of Intercarrier Competition, Ernest W. Williams Jr.

Vanderbilt Law Review

The past decade has been marked by numerous examinations of the transportation scene, and particularly of government policy toward transportation, which have borne partial fruit in the Transportation Act of 1958. More than anything else, the rapid weakening of the railroad system after World War II and the conviction of railroad managements that the worsening state of their industry was the result of "unfair" govenmental policies led to the almost continuous attention which has been devoted to the subject by agencies of the Congress and of the executive branch alike. And all such studies demonstrate, before they are done, that …

Licensing Interstate Vehicles: State Cooperation Or Federal Intervention?, Jess N. Rosenberg

Vanderbilt Law Review

Roads have been an essential part of transportation since man began to travel and to take his goods with him. This fact is sometimes obscured by the intense current preoccupation with motor vehicles which are often regarded as the cause of roads rather than instruments for utilization of roads. In any event, it is true that, with the advent of the motor vehicle, highways have become an increasingly important part of the nation's transportation system. That this tendency and importance will continue and even be accelerated is portended by the creation of the National System of Interstate and Defense Highways' …

Bills And Notes--1958 Tennessee Survey, S. B. Gilreath

Vanderbilt Law Review

Express Provision Concerning Negotiability. Phelan v. Phelan is the only case which has been found on the subject of bills and notes decided during the survey period. It was a suit in equity on a note in the sum of $4,000 made on April 10, 1954, by R. E. Phelan and payable to W. 0. Phelan on September 15, 1954. The note provided that it was "non-negotiable and non-transferable."

The payee, W. 0. Phelan, filed a bill to recover a decree on this note against R. E. Phelan, the maker, who, in turn, filed an answer pleading as a set-off …

Business Associations--1958 Tennessee Survey, F. Hodge O'Neal

Vanderbilt Law Review

Only a handful of cases were decided in Tennessee during the survey period which raised questions in the field of business associations.Some of the issues raised in these cases, however, were of considerable interest and importance. ...

Disregarding Corporate Entity in Close Corporation: The close corporation, just as the public issue corporation, is generally viewed as a "legal entity" having in law an existence separate and apart from its shareholders. This means that rights, duties and other legal relations arising out of an incorporated enterprise, irrespective of whether it is widely held or closely held, are usually adjusted as though …

Criminal Law And Procedure -- 1958 Tennessee Survey, Charles H. Miller

Vanderbilt Law Review

In surveying the field of criminal law and procedure the cases presented to the supreme court during the year were little more than normal or typical. Several of the criminal cases are not presented in detail in this article, as they are dealt with in other survey sections.

Equity -- 1958 Tennessee Survey, Theodore A. Smedley

Vanderbilt Law Review

Since Equity is a field of indefinite boundaries, it is to be expected that the cases discussed in this section of the survey involve a wide variety of issues. Of the thirteen decisions to be mentioned, four were suits for injunctions to restrain as many different types of alleged wrongs, three were suits to cancel or reform written instruments executed by mistake or fraud, two were suits to declare trusts, one was a suit for specific performance of a contract to sell land, one was a suit to enforce a promissory note, and two were suits turning on procedural factors.

Motor Carrier Operating Authorities, Drew L. Carraway

Vanderbilt Law Review

The enactment by Congress of the Motor Carrier Act of 1935 vested in the Interstate Commerce Commission the power, among others, to grant or deny applications for motor carrier operating authority. The exercise of this power embraces the grave responsibility to regulate motor carriers in accordance with the national transportation policy of Congress as enunciated in the Transportation Act of 1940.

Motor carrier operating authority is a valuable intangible property right carrying with it both privileges and obligations. The holder of such authority is given the privilege of performing operations which may be developed into a profitable business but, at …

Evidence In Motor Carrier Application Cases, Everett Hutchinson, George M. Chandler

Vanderbilt Law Review

The Motor Carrier Act of 19351 brought under regulation by the Interstate Commerce Commission the operation of for-hire motor carriers. The act, which is now part II of the Interstate Commerce Act, requires all such motor carriers, with certain exceptions, to obtain operating authority from the Commission. Carriers operating prior to the passage of the act were granted authority under "grand-father" provisions by a mere showing of past operations, but carriers entering the field since that date or desiring to extend their operations are required to prove that there is a public need for the service which they propose. A …

The Influence Of Proprietary Trucking Upon Minimum Rate Policy In California, William H. Dodge, Richard R. Carll

Vanderbilt Law Review

Our analysis of the California cases has shown that public policy must not only balance the interests of one class of shipper, which can save money by private trucking, against those of another class, which must bear the brunt of higher freight rates. When the low-cost shipper and the high-cost shipper are both the same shipper, the objective of low-cost transportation in the public interest is less well defined. From the shipper's position, of course, it is entirely sensible to achieve the economies of his cream traffic with proprietary trans-port while, at the same time, appearing before public authority to …

Judicial Review Of Orders Of The Interstate Commerce Commission Relating To Motor Carriers, Robert W. Ginnane, James A. Murray

Vanderbilt Law Review

When, in 1935, Congress provided for federal regulation of inter-state motor transportation by the Interstate Commerce Commission,it made applicable to the Commission's regulatory orders with respect to motor carriers the same system of judicial review which it had devised for orders relating to railroads in the Urgent Deficiencies Act of 1913.' This invoked not only the naked statutory review provisions but also, at least by analogy, the mass of judicial decisions applying the 1913 legislation to Commission orders involving railroads. The statutory provisions for review of orders of the Interstate Commerce Commission have been codified into Title 28 of the …

Annual Survey Of Tennessee Law, Harold Seligman

Vanderbilt Law Review

Of particular significance in this field during the survey year has been the decision of the Supreme Court of Tennessee in Southern Bell Tel. and Tel. Co. v. Tennessee Pub. Serv. Comm'n. Several aspects of administrative law are involved in this holding, including scope of review, evidence to be considered by the court on review, and the rate-making function...

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In Flowers v. Benton County Beer Board, the license of a beer permit holder was revoked by a county beer board due to the holder's plea of guilty to driving an automobile while under the influence of an intoxicant in …

Agency--1958 Tennessee Survey, Edward R. Hayes

Vanderbilt Law Review

Establishing that Tortfeasor is a Servant of Defendant: Negligent operation of motor vehicles probably is the most prolific source of tort liability today. Within this area an important cause of litigation has been negligent operation by someone other than the owner of the vehicle. The initial common law approach to such cases was to hold the owner responsible if he himself were negligent, as by entrusting his car to a known incompetent driver, or if the negligent driver were the owner's servant acting within the course and scope of his employment.'

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In Smith v. Phillips a pick-up truck, registered …

Conflict Of Laws -- 1958 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The requirement of residence in the Tennessee divorce statutes'has been construed to mean domicile. Two cases during the Survey period raise the issue of domicile in this connection. In Bernardi v.Bernard is the question was whether a member of the armed services had acquired a domicile in the state...

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Torts.-In Schenk v. Gwaltney the court followed the usual rule of choice of law in torts cases. An automobile accident having happened in Indiana, the Indiana automobile guest statute was held to apply, though the court intimated that if the accident had occurred in Tennessee where there was no such …

Constitutional Law -- 1958 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

State constitutional law decisions, lacking the universality of application of many other fields of the law, are vital and of significance frequently only to the local bar and local public officials. There is another difference between state constitutional law decisions, and federal constitutional law decisions: state courts are inclined to deal with state constitutional issues with an emphasis on the pragmatic problem of deciding the case and getting it out of the way,rather than with an emphasis on completing the blue print-of seeking to establish the general principle which reflects the conflicting policies struggling for recognition. In most United States …

Contracts -- 1958 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

During the period covered by this survey article, there have not been many cases in the field of contracts. In two of the cases the only question before the court was the sufficiency of the evidence, and in both of these cases the Tennessee Court of Appeals found that there was sufficient evidence to sustain the lower court, without going into an analysis of the evidence. Thus, there is no comment that can properly be made concerning those cases. There were two other cases, however, upon which some comment can properly be made.

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Contracts-Third Party Beneficiary-Right of County to …

Decedents' Estates, Trusts And Future Interests -- 1958 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

The subject matter of this article will be presented in three parts entitled Decedents' Estates, Trusts, and Future Interests. The developments of the year' consist of judicial decisions of the appellate courts in Tennessee, and the work of the Section on Real Property,Probate and Trust Law of the Tennessee Bar Association on a new statute concerning intestate succession for the state. Since the General Assembly was not in session, there were no legislative developments. The part entitled Decendents' Estates will include a discussion of intestate succession, wills, and the problems of fiduciary administration in decendents' estates. The problems of fiduciary …

Insurance -- 1958 Tennessee Survey, Robert W. Sturdivant

Vanderbilt Law Review

The case of Clinchfield R.R. v. United States Fidelity & Guaranty Co.' involved the question of whether the insured, in a suit against his insurer, is bound by findings adverse to him in prior litigation between the insured and a third person.The liability insurance policy involved covered certain vehicles of the railroad company but expressly excluded from coverage injuries to employees in the course of their employment. One Harrison, a regular railroad employee, was injured while riding in an insured vehicle with a fellow employee. He sued the railroad company under the Federal Employers Liability Act. Before he could recover …

Labor Law And Workmen's Compensation -- 1958 Tennessee Survey, Paul H. Sanders, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

The federal Labor-Management Relations (Taft-Hartley) Act sets forth as a basic right the freedom of choice of covered employees with respect to unionization and the establishment of collective bargaining. While protecting certain concerted activities, this statute makes it unlawful, among other things, for a labor organization to strike or picket for certain proscribed objectives. In this area of regulation (i.e., the purposes of labor combinations and economic pressures) the federal machinery is exclusive to the extent that the necessary relationship to interstate commerce is present and exceptions to coverage are inapplicable. While the Supreme Court of the United States has …

Local Government Law -- 1958 Tennessee Survey, John B. Thurman, Jr., Roger G. White

Vanderbilt Law Review

The tremendous expansion of the functions of local governmental agencies, particularly into provinces heretofore reserved for private enterprise, has resulted in a similar expansion of local government law. It seems safe to assert that within the confines of local government law can be found legal principles and rules from practically every other field of law. It is necessary, therefore, to limit the scope of an annual survey of local government law; no longer is it possible to include in a survey article such as this a discussion of all of these legal principles and rules. Nor is such a discussion …

Personal Property And Sales -- 1958 Tennessee Survey, Claude E. Bankester

Vanderbilt Law Review

The existence of a confidential or fiduciary relationship between two parties does not prevent either party from making a gift to the other. However, when the gift is from the dependent party to the dominant party of the relationship, there arises a presumption that the gift was obtained by the exercise of undue influence on the donor and therefore void. Consequently, the burden is placed upon the donee to prove by "clear and satisfactory" evidence that the gift was not obtained by use of undue influence. The relationship necessary to raise the presumption may be of any kind which implies …

Procedure And Evidence -- 1958 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

Construction and Sufficiency on Demurrer: A pleading must be construed in the light of matters judicially noticed; an allegation of facts from which the inference of the existence of an essential fact is no more reasonable or is less reasonable than an inference of its non-existence is not the equivalent of an allegation of that essential fact. ...

Thus in an action against a Pension Board for money due, a demurrer to the bill of complaint specifying only the failure to allege a ground of recovery does not raise the question whether the decision of the Pension Board is made …

Real Property -- 1958 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

In Bailey v. Eagle Mountain Tel. Co.' the supreme court in an opinion by Justice Swepston affirmed the chancellor of Knox County who had sustained defendant's demurrer to a specific performance action because he regarded the following language in complainant's claim of title as creating a fee simple determinable in the grantee.

"In consideration of love and interest we have in Education, we this day deed, transfer, and convey a certain lot or parcel of land .... To have and to hold for school purposes ... so long as the aforesaid lot of land is used for the aforesaid purpose." …

Restitution -- 1958 Tennessee Survey, William Wicker

Vanderbilt Law Review

Civil remedies may be grouped under three classifications: torts, contracts, and restitution. The plaintiff's objective in a tort action is a recovery for his loss which resulted from the defendant's wrongful act, the measure of recovery being the amount of that loss expressed in dollars. The plaintiff's objective in a contract action is a recovery for a breach of the defendant's promise, the measure of recovery being the net addition to the plaintiff's estate which would have resulted had defendant performed his promise. Restitution is a giving back of what has been taken away unjustly. The plaintiff's objective in a …

Torts -- 1958 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The number of torts cases was somewhat less this year than in past years, being below the forty figure rather than above it. There were no particularly significant legal developments in the field. Perhaps the cases indicate, however, a developing fashion in automobile negligence actions. At least four of the cases seem to have been brought for whiplash injuries.'