Law Commons^™

Liability Of Employers For Misrepresentations Made By Independent Contractors, Merton Ferson

Vanderbilt Law Review

There are two ways of getting a job done. The person who wants it done can do it himself by his own efforts, management and hired help; or he can bargain with someone else for the desired result. When he hires per- sonal services and retains the management of the enterprise he is called a "master," the person hired is called a "servant," and the master is liable for what the servant does in the master's behalf. But when one bargains for a given result he does not then become a master, the person bargained with is called an independent …

Evidentiary Privileges Against The Production Of Data Within The Control Of Executive Departments, William V. Sanford

Vanderbilt Law Review

In the conduct of their affairs the various executive departments and administrative agencies acquire much information--reports, documents, records of all kinds, and other data--which may be useful to litigants in civil and criminal actions. The public interest in a full and fair hearing of all disputes between individuals and between individuals and the state calls for the production and disclosure of all evidence relevant to the issues in dispute.' This public interest calls for the production and disclosure of relevant evidence within the control of executive departments and administrative agencies. The evidence sought, however, may be of such a nature …

Book Review, Journal Staff

Vanderbilt Law Review

No abstract provided.

Liability Of Employers For Misrepresentations Made By "Independent Contractors", Merton Person

Vanderbilt Law Review

There are two ways of getting a job done. The person who wants it done can do it himself by his own efforts, management and hired help; or he can bargain with someone else for the desired result. When he hires personal services and retains the management of the enterprise he is called a "master," the person hired is called a "servant," and the master is liable for what the servant does in the master's behalf. But when one bargains for a given result he does not then become a master, the person bargained with is called an independent contractor, …

Cash And Accrual Methods Of Income Tax Accounting, William J. Bowe

Vanderbilt Law Review

It is the purpose of this article to introduce the two methods of income'tax accounting to the general practitioner who is not a specialist in the field and to the student who is attempting to learn the subject of income taxation. The article simply seeks to express in a clear and orderly fashion the developed law on the topic.

Resale Price Maintenance, Stanley D. Rose

Vanderbilt Law Review

There was a tide in the affairs of men that was taken at its flood by the National Association of Retail Druggists--and it led on to fortune. For this band of little men the Miller-Tydings Amendment to the Sherman Act I was the end of a thirty years war. Enjoined in 1907 from attempting to force up retail price margins and maintain retail drug prices at a uniform level, this association joined with other groups desirous of achieving similar ends in an effort, year after year, to persuade Congress to permit the making of contracts between manufacturers and retailers that …

Book Notes, Law Review Staff

Vanderbilt Law Review

BOOK NOTES

The Law of Trusts

By Ralph A. Newman

Brooklyn: The Foundation Press, Inc., 1949. Pp. xi, 452. $4.50

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Estate Planning

By Joseph Trachtman

New York: Practicing Law Institute. 1949 Edition. Paper bound. Pp. i, 170. $2.00

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BOOKS RECEIVED

The Case of General Yamashita

By A. Frank Reel

Chicago: University of Chicago Press, 1949. Pp. v, 324. $4.00

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Cases and Materials on Commercial Law

By Hugh W. Babb and Carl B. Everberg

Brooklyn: The Foundation Press, Inc., 1949. Pp. iii, 963. $6.00

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Cases and Materials on Law and Accounting

By Donald Schapiro and Ralph Wienshienk …

Evidentiary Privileges Against The Production Of Data Within The Control Of Executive Departments, William V. Sanford

Vanderbilt Law Review

In the conduct of their affairs the various executive departments and administrative agencies acquire much information--reports, documents, records of all kinds, and other data--which may be useful to litigants in civil and criminal actions. The public interest in a full and fair hearing of all disputes between individuals and between individuals and the state calls for the production and disclosure of all evidence relevant to the issues in dispute. This public interest calls for the production and disclosure of relevant evidence within the control of executive departments and administrative agencies. The evidence sought, however, may be of such a nature …

The Present Status Of Connivance As A Defense To Divorce, Robert B. Deen Jr.

Vanderbilt Law Review

The four usual defenses raised to bar actions for divorce are connivance, collusion, condonation, and recrimination. Connivance is ordinarily defined as consent to the misconduct alleged as grounds for divorce.' It differs from collusion in that there are present actual grounds for divorce, rather than fictitious causes or concealed defenses; from condonation in that consent is given before the misconduct occurs, not forgiveness afterwards; from recrimination in that it has to do with the very grounds on which the plaintiff sues, not some other act of misconduct.

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Bills and Notes--Fictitious Payee Known only to Fraudulent Employee of Drawer--Negotiable Instruments Law v. Fictitious Payee Act

Constitutional Law--Amendment and Revision--Power to Call Constitutional Convention Limited to Consideration of Specific Topics

Constitutional Law--Interstate Commerce--Dental of License to Ship Milk Held Invalid

Constitutional Law--Separation of Powers--Legislative Control over Admission to the Bar

Contracts--Recited Cash Consideration--Effect of Non-payment

Contracts--Statute of Frauds--Letterhead as a Signature

Criminal Procedure--Communication between Judge and Jury--Effect of Inquiry as to Pronounced Majority

Criminal Procedure--Constitutional Right to Public Trial--Power of Court to Order Courtroom Cleared of Spectators

Estates--Disability of Life Tenant to Purchase Tax Title to Exclusion …

Book Reviews, Stanley D. Rose (Reviewer), Walter P. Armstrong (Reviewer), Paul H. Hardacre (Reviewer), Sam D. Tatum (Reviewer)

Vanderbilt Law Review

The Law of the Soviet State By Andrei Y. Vyshinsky New York: The Macmillan Company, 1949. Pp. xvii, 749. $15.00

The Role of the Soviet Court By I. T. Golyakov Washington, D. C.: Public Affairs Press, 1948, Pp. 20. $1.00

Soviet Civil Law By Vladimir Gsovski Ann Arbor: University of Michigan Volume I, 1948. Pp. xxxvii, 909. Volume II, 1949. Pp. xx, 906. $10.00 per volume; $15.00 per set

reviewer: Stanley D. Rose

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Missouri Lawyer By John T. Barker Philadelphia: Dorrance & Company,1949. Pp. 391. $3.50

reviewer: Walter P. Armstrong

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Magna Carta: Its Role in the Making of …

Recent Cases, Law Review Staff

Vanderbilt Law Review

ADJOINING LAN DOWNERS--OVERHANGING BRANCHES--INJUNCTION AGAINST MAINTENANCE REFUSED

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ADMINISTRATIVE LAW--ZONING BOARD--RIGHT OF BOARD TO APPEAL FROM ADVERSE DECISION OF LOWER COURT

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CONSTITUTIONAL LAW--FREEDOM OF RELIGION--STATUTE OUTLAWING SNAKE-HANDLING

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CONSTITUTIONAL LAW--STATE CONSTITUTIONAL REQUIREMENT FOR VOTING TO "UNDERSTAND AND EXPLAIN" THE CONSTITUTION--EFFECT OF DISCRIMINATORY ADMINISTRATION AGAINST NEGROES

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CONTRACTS--OFFER AND ACCEPTANCE--EFFECT OF ATTEMPTED REVOCATION OF UNILATERAL OFFER AFTER PART PERFORMANCE

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CRIMINAL LAW--DOUBLE JEOPARDY--CONVICTION OF HIGHER OFFENSE ON RETRIAL

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CRIMINAL LAW--LARCENY--SINGLE ACT CONSTITUTING SEPARATE OFFENSES

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FEDERAL JURISDICTION--AMOUNT IN CONTROVERSY--DEGREE OF EVIDENCE REQUIRED

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INSURANCE--INCONTESTABLE CLAUSE--EFFECT ON ACTION BY INSURER TO REFORM POLICY

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LOTTERIES--SLOT MACHINES--FREE GAMES AS PROPERTY OF …

Replevin Of The Contents Of Safe Deposit Boxes, Beverly Douglas Jr.

Vanderbilt Law Review

It is often stated that a plaintiff cannot recover in replevin' or detinue unless the defendant is in possession of the disputed goods at the commence- ment of the action. This requirement is fundamentally one of practicality. Since possession of the chattel is the primary object of an action for specific recovery, replevin is inappropriate unless the defendant is in a position to restore this possession to the plaintiff. But one may sometimes be able to put another in possession and have a duty to do so without himself having that combination of physical control and intent which the law …

Recent Cases, Journal Staff

Vanderbilt Law Review

No abstract provided.

John Howard Moore, Robert W. Sturdivant

Vanderbilt Law Review

This issue of the Vanderbilt Law Review is dedicated to Mr. John Howard Moore. At the end of this current school year Mr. Moore will have served a quarter of a century as a Professor of Law at the Vanderbilt University School of Law and will retire from active teaching.

Mr. Moore has been and remains an idealist and perfectionist in the law. This has been the theme of his teaching. We that had him as a teacher know that it is his belief that neither he nor anyone else is qualified to answer a nice legal question until the …

The Tennessee Law Of Arrest, Rollin M. Perkins

Vanderbilt Law Review

The many sections in the Tennessee Code' dealing with arrest constitute an incomplete codification of the common law of this subject modified by some important changes. This statutory material leaves the common law in full force wherever it is either silent on the particular point or merely restates the preexisting rule. Those sections which produce results different from those found under the unwritten law leave the latter in the realm of matters having historical interest only, as far as the law of this state is concerned. The purpose of this undertaking is to depict the present law of Tennessee on …

The Standard Of Care Owed By A Hospital To Its Patients, William J. Harbison

Vanderbilt Law Review

Despite the: great number of tort cases which have arisen between hospitals and their patients, comparatively little has been written upon the subject of the standard of care required of a hospital in its relationship with those who enter it for treatment. In this Note some of the types of problems arising out of this relationship will be examined.' Questions of substantive and procedural law will be treated together in order to present these problems more clearly.

Generally, public hospitals are excused from tort liability to their patients upon the ground of governmental immunity ; in most states charitable institutions …

Should The Doctrine Of Implied Warranties Be Limited To Sales Transactions?, Robert B. Deen Jr., Charles H. Warfield

Vanderbilt Law Review

The purpose of this discussion is to examine implied warranties in order to determine if their application is limited to sales transactions. In approaching this problem, it is necessary to understand the development of warranty. In the early law, warranty was a pure action of tort.' Special assumpsit developed over a hundred years later than warranty and was based on the tort action of warranty. Thus, at the beginning, assumpsit was thought of as a tort action. Later assumpsit came to be regarded as similar to covenant and hence became classified with contract actions. Warranty was still considered a tort …

Replevin Of The Contents Of Safe Deposit Boxes, Beverly Douglas Jr.

Vanderbilt Law Review

It is often stated that a plaintiff cannot recover in replevin' or detinue unless the defendant is in possession of the disputed goods at the commencement of the action. This requirement is fundamentally one of practicality. Since possession of the chattel is the primary object of an action for specific recovery, replevin is inappropriate unless the defendant is in a position to restore this possession to the plaintiff. But one may sometimes be able to put another in possession and have a duty to do so without himself having that combination of physical control and intent which the law calls …

Assignments Of Accounts Receivable And The Conflict Of Laws Under The Bankruptcy Act, Eugene J.T. Flanagan

Vanderbilt Law Review

Under our system of government there is no constitutional requirement that the laws of the various states be uniform. On some points there are considerable differences between the laws of sister states. Such is the case with respect to the test for priority of right among successive assignees of an account receivable. This difference becomes of great importance when a multi-state transaction raises the question of the choice of the applicable law.

Fundamentally the problem is whether the jurisdiction in question follows the rule of Dearle v. Hall,' or the so-called American rule. The former establishes the order of precedence …

Overtime Pay Under The Fair Labor Standards Act, Paul H. Sanders

Vanderbilt Law Review

Any rate of pay exceeding the statutory minimum that the parties to an employment agreement decide upon is permissible as far as the Federal Fair Labor Standards Act 1 is concerned. In general, too, the mode of payment is uncontrolled by the statute. Does this freedom of contract include the power to make arrangements with respect to the agreed-upon compensation which will be legally effective in determining liability under the statute? This question indicates in broad scope the most persistent controversy centering around the term "regular rate of pay," which, although undefined in the Act, is the required basis for …

Part Performance And Equitable, Estoppel In Tennessee, Cecil D. Branstetter

Vanderbilt Law Review

The Tennessee chancery courts have repeatedly been petitioned for the specific enforcement of parol contracts for the sale of land, on the basis of part performance.' The Tennessee Supreme Court has consistently refused to give such relief, emphatically laying down the rule that part performance of a parol contract for the sale of land does not serve as a substitute for the writing required by the Statute of Frauds...

The purpose of this note is to determine the extent to which Tennessee courts will recognize and enforce parol contracts for the sale of an interest inland when the petitioner relies …

Book Reviews, Harold Shepherd, Rollin M. Perkins, Stanley D. Rose

Vanderbilt Law Review

The Rational Basis of Contracts and Related Problems in Legal Analysis By Merton L. Ferson Brooklyn: The Foundation Press, Inc.,1949. Pp. i-ix, 1-330. $4.00

reviewer: Harold Shepherd

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Beutel's Brannan, Negotiable Instruments Law By Frederick K.Beutel Cincinnati: The W. H. Anderson Company Seventh Edition,1948. Pp. xiii, 1628. $15.00

reviewer: Rollin M. Perkins

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Social Meaning of Legal Concepts--No. 1, Inheritance of Property and the Power of Testamentary Disposition Edited by Edward N. Cahn New York: New York University School of Law, 1948.Pp. vi, 90. $1.50

reviewer: Stanley D. Rose

Book Reviews, Journal Staff

Vanderbilt Law Review

No abstract provided.

Options And Valuation Of Property For Federal Tax Purposes, William J. Bowe

Vanderbilt Law Review

In Estate of John Q. Strange, there was an agreement between two brothers, engaged in business in a close corporation, which provided that upon the death of either, the survivor might acquire the stock of the other upon payment of $10,000 to his estate. Payment was so made following the decedent's death. The fair market value of the stock on the date of death was stipulated to be $238,126.54. The Board of Tax Appeals held that the option price of $10,000 was the proper amount to be included in the decedent's gross estate as the value of his stock.

In …

Editorial Board, Journal Staff

Vanderbilt Law Review

No abstract provided.

Recent Cases, Law Review Staff

Vanderbilt Law Review

ADMINISTRATIVE LAW--RADIO LICENSES--FCC CONTROL OF RADIO PROGRAMMING

CONSTITUTIONAL LAW--CORPORATIONS--STATUTE REQUIRING SECURITY FOR COSTS IN STOCKHOLDER'S DERIVATIVE SUIT

CONSTRUCTIVE TRUSTS--TAX SALES--RIGHT OF REMAINDERMAN TO PURCHASE AT TAX SALE TO THE EXCLUSION OF LIFE TENANT

CRIMINAL PROCEDURE--EVIDENCE--EXCLUSION OF VOLUNTARY CONFESSION OBTAINED DURING ILLEGAL DETENTION

DOMESTIC RELATIONS--ALIMONY-POWER OF COURT TO MODIFY OR REMIT PAST DUE INSTALLMENTS

EMINENT DOMAIN--REMOVAL COSTS WHEN PART OF A LEASE IS TAKEN--EFFECT OF RENEWAL OF OPTION TAKING ALL OF LEASE

EVIDENCE--CHARACTER WITNESS FOR ACCUSED--CROSS-EXAMINATION AS TO KNOWLEDGE OF ARREST MANY YEARS PREVIOUSLY

FEDERAL PROCEDURE--FOREIGN CORPORATIONS--WAIVER OF VENUE BY DESIGNATION OF AGENT FOR SERVICE OF PROCESS

FULL FAITH AND CREDIT--SUIT …

Stockholder Attacks On Corporate Pension Systems, F. Hodge O'Neal

Vanderbilt Law Review

This article considers the legal issues raised when a corporate pension system is attacked by minority stockholders. These issues perhaps best can be delineated by focusing attention on a representative fact-situation.

The board of directors of a corporation formulate a pension plan for corporate officers and employees. Retirement benefits under the plan are to be based on employees' "past service" (i.e., service rendered the company prior to the effective date of the plan) as well as on their "future service" (i.e., service rendered after the plan is in operation). The plan includes provisions for funding the pensions with either a …

Strikes By Government Employees, William V. Sanford

Vanderbilt Law Review

It has been the purpose of this Note to examine the various principles and arguments involved in the development of a policy for court or legislative action with regard to strikes by government employees. It is suggested that the following principles should be controlling in the determination of that policy: (1) the general policies of the law towards striking private employees are applicable to striking government employees; (2) strikes by government employees are not all necessarily unlawful; (3) the legality of a strike by government employees depends upon its objects and upon the means used to attain them; (4) the …

A Symposium On Estate Planning: Foreword, Mayo Adams Shattuck

Vanderbilt Law Review

The power and increasing value of conferences and symposia of the sort which the Vanderbilt Law Review has arranged is that a team of first class men are gathered together to give testimony and useful advice upon the various independent factors which must be taken into account in solution of this fascinating problem. When a group of distinguished scholars and practitioners like those participating in this symposium are willing to make thoughtful contributions to this sort-of round table, without hope of compensation except for the satisfaction that comes from the provision of sound ideas and the education that stems from …