Law Commons^™

Conflict Of Laws In Labor Matters In The United States, Stuart Rothman

Vanderbilt Law Review

A sampling of the ways in which the subject of conflict of laws has been treated in the United States in labor matters will be undertaken. However, the term "labor matters" may be regarded as embracing a multitude of topics, and this presentation by no means purports to be encyclopedic. Indeed, questions concerning conflicts between laws of the federal and state governments have been purposely excluded, though admittedly they loom large in domestic law and jurisprudence. On the other hand, the subjects considered are deemed illustrative of the domestic approach to the problems involved.

Constitutional Law--1959 Tennessee Survey, Elvin E. Overton

Vanderbilt Law Review

A smaller number of cases have been selected for inclusion in this year's survey. Seven cases are included, including one federal court decision dealing with a municipal ordinance. In addition, two specific acts of the General Assembly are noted although there has as yet been no opportunity for the courts to rule upon them.

Creditors' Rights And Security Transactions--1959 Tennessee Survey, Forrest W. Lacey

Vanderbilt Law Review

There were few cases of interest in the period under survey. Rone Jewelry Company v. Conley' presented the question of what constitutes "willful and malicious injuries to the property of another" within the meaning of section 17 of the Bankruptcy Act. A debt of this character is not released by a discharge in bankruptcy.

In the instant case the defendant had purchased silverware and a ring from plaintiff under a title retention contract. Defendant then sent the property to his mother in New Jersey. Following a discharge in bankruptcy granted to the purchaser, the seller brought action against the purchaser.

Insurance--1959 Tennessee Survey, William R. Andersen

Vanderbilt Law Review

What is the meaning of the term "actual cash value" in the standard fire policy? The middle section of the court of appeals, following a prior Tennessee case and the weight of authority, held that the phrase is synonomous with "market value" only where the goods are readily replaceable in a current market. Where there is no market, or where the market value is inadequate to properly indemnify the insured, "actual cash value" means the "'value to the owner' or the loss he suffers in being deprived of the goods." Since the goods involved in this case were personal effects, …

Domestic Relations--1959 Tennessee Survey, William J. Harbison

Vanderbilt Law Review

In the case of In re Matthews, the supreme court once more was called upon to construe the adoption statutes and to determine the relationship between the juvenile court and a court in which adoption proceedings are pending. In this same case, the court had earlier held that jurisdiction of juvenile courts to declare children abandoned is not exclusive and that in adoption proceedings a chancery court may determine whether there has been an abandonment of the child proposed to be adopted. The supreme court had remanded the case to the chancery court. In that court, the Department of Public …

Real Property--1959 Tennessee Survey, Thomas G. Roady, Jr.

Vanderbilt Law Review

Future Interests.-The creation of divided interests in real property always carries with it problems in controlling the use and man- agement by the owner of the possessory interest. One of the most difficult problems in future interests is how to adjust the relation between the holder of a present possessory interest and the holder of a future interest in the same parcel of land. In resolving such problems many courts are influenced primarily by the nature (classification) of the future interest involved and have worked out with some degree of certainty the distribution of benefits and burdens in the simple …

State And Local Taxation, Paul J. Hartman

Vanderbilt Law Review

That the field of state and local taxation is bedoming much more important, as well as increasingly active, is shown by a number of recent significant major developments that are of interest and concern to taxpayers and their counsel everywhere. Ten state tax cases are already on the United States Supreme Court docket for consideration during the Term commencing October 5, 1959.' During the past term at least a half dozen important state tax cases were decided by the Supreme Court, including the epochal Northwestern-Stockham decision, which threw much of the legal profession, as well as many taxpayers, into a …

Procedure And Evidence--1959 Tennessee Survey, Edmund M. Morgan

Vanderbilt Law Review

This survey of Procedure and Evidence is in most respects merely a horizontal digest of the cases which have been published between June 1, 1958, and June 1, 1959. Only a few decisions are of the character and importance that would call for comment in regular course in a law review like the Vanderbilt Law Review. Many of them are mere illustrations of inexcusable disregard by counsel of our applicable statutes and rules and previous decisions of our appellate courts interpreting them. Whether this sort of treatment of the subject is justifiable is open to serious question. The answer depends …

The Uniform Statute Of Limitations On Foreign Claims Act, David H. Vernon

Vanderbilt Law Review

In July, 1957, the National Conference of Commissioners on Uniform State Laws approved a Uniform Statute of Limitations on Foreign Claims Act.1 Section 2, its only substantive provision, reads as follows: Section 2. [Periods of Limitation on Foreign Claims.] The period of limitation applicable to a claim accruing outside of this state shall be either that prescribed by the law of the place where the claim accrued or by the law of this state, whichever first bars the claim. As promulgated, the Conference proposal amounts to a limited borrowing statute calling for the application of the law of the place …

Mr. Justice Jackson, Free Speech, And The Judicial Function, Walter F. Murphy

Vanderbilt Law Review

All free speech cases decided by the United States Supreme Court are hard cases; and, if they do not, according to the old saw, make bad law, they do make law which is both fragile and fascinating. Wrapped up inside the kernel of each of these cases are many of the most troublesome problems which confront a democratic government: the relation of majority rule to minority rights, the necessity of peace and order but the equally imperative necessity of open discussion, and, not least, the paradoxical role of an appointive judiciary in curbing, in the name of democracy and freedom, …

The Impact Of Antitrust, John P. Miller

Vanderbilt Law Review

The functions of the antitrust laws have never been well articulated. Some proponents of the law emphasize the economic benefits of competition, i.e., incentives to economic efficiency and growth. Others emphasize the political and social advantages of minimizing the concentration of economic power. A review of the history and present status of antitrust suggests that both these views play a part. The Sherman Act prohibitions of "restraint of trade" and "monopolizing" suggest concern that entry into an industry shall not be barred by arbitrary restraints and that decisions of various firms shall be arrived at independently. This is not the …

Annual Survey Of Tennessee Law, Harold Seligman

Vanderbilt Law Review

The subject of administrative law in Tennessee remained generally static in the year in review. The supreme court held consistently to its line of decisions concerning review of administrative actions in the limited number of decided cases concerning the subject. The 1959 General Assembly of Tennessee made some sweeping revisions in the organization of several departments of government and various agencies and boards but these changes were solely for purposes of administrative efficiency and economy with no practical jurisdictional, regulatory or substantive effect.

Agency--1959 Tennessee Survey, Kenneth L. Roberts

Vanderbilt Law Review

Several decisions of the Tennessee and sixth federal circuit appellate courts during the survey period dealt with the nature and scope of duties owing by master to servant. A prefatory review of applicable common law principles should aid understanding of these cases.

Broadly categorized, the master's common law obligations to his servant are fivefold. (1) To afford a reasonably safe place to work. The servant must be protected from dangers known to the master or those which might have been discovered by the exercise of reasonable diligence. If the danger is known or patently obvious and appreciated by the servant, …

Conflict Of Laws--1959 Tennessee Survey, John W. Wade

Vanderbilt Law Review

There have been several developments during the year regarding jurisdiction over nonresidents.

In 1947 the legislature passed a statute requiring "any unincorporated association or organization, whether resident or nonresident," which was doing or desiring to do business in the state to appoint an agent for the service of process and providing that in case of failure to appoint the agent, service might be had on the Secretary of State.' The constitutionality of this act, as applied to foreign associations has since been upheld. A current amendment to the section has added the words "including non-resident partnerships" at the end of …

Business Associations--1959 Tennessee Survey, F. Hodge O'Neal

Vanderbilt Law Review

The Eighty-first General Assembly enacted a considerable number of significant statutes affecting business organizations or their activities. One of the new statutes made important changes in the Securities Law of 1955. Several of the statutes were designed, or at least professed to be designed, to encourage the commercial and industrial development of Tennessee. On the other hand, Tennessee courts handed down during the survey period only two or three opinions touching on business associations questions, and those questions were of but little importance. In general, this article discusses the statutes first, then the judicial decisions.

Personal Property And Sales--1959 Tennessee Survey, Claude E. Bankester

Vanderbilt Law Review

Damage to Chattel in Possession of Mortgagor or Conditional Vendee.--When a chattel is mortgaged or sold pursuant to a conditional sales contract and is subsequently damaged by a third party while in possession of the mortgagor or conditional vendee, it is generally agreed that either party to the chattel mortgage' or conditional sales contract has a sufficient interest in the chattel to allow him to maintain an action against the wrongdoer. In Ellis v. Snell, the court allowed recovery by the mortgagor for the full amount of damage to the'mortgaged automobile, even though he was in default on the mortgage …

Restitution--1959 Tennessee Survey, William Wicker

Vanderbilt Law Review

A defrauded party to a contract may ask for the alternative right of cancellation of the contract and restitution of the consideration, rather than a right to damages for being led into the fraudulent transaction. This restitutionary remedy is the right of the defrauded party to be restored to the situation which he occupied prior to the fraudulent transaction.

In Bluff City Company v. Davis, seller falsely represented that an automobile was new, and buyer relied on that representation. Within a reasonable time after buyer learned that he had bought a used automobile, he offered to return it. It was …

Torts--1959 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, a considerable number of cases involving tort law were decided during the survey period. One of the decisions involves a point of first impression in this state, the matter of whether an unborn child comes within the scope of the wrongful death statute. A number of the decisions serve to clarify existing rules, or to carry these rules a step further in applying them to new situations. There were also some significant statutory developments, including the changes in the Railroad Precautions Act.

Criminal Law And Procedure--1959 Tennessee Survey, Robert E. Kendrick

Vanderbilt Law Review

Conspiracy--Cline v. State was an appeal from a conviction of a conspiracy to dynamite and destroy a public school building in Clinton, Tennessee, in violation of a statute making it a felony for two or more persons to agree "to commit an illegal act capable of producing conditions destructive to life or property.. ." by possessing, transporting or using explosives. Three men, D1, D2 and D3, had been indicated; but, before defendants were put to trial, the state entered a "nolle prosequi" against D1, who became a state's witness. Afterwards, D2 was acquitted in the same trial in which D3, …

Equity--1959 Tennessee Survey, T. A. Smedley

Vanderbilt Law Review

The amazing versatility of the chancery courts in Tennessee has been demonstrated again in two decisions handed down during the past year; but on the other hand, two cases decided in this interval disclosed evidence of the regrettable "decadence of equity" which Dean Pound deplored more than half a century ago.' In most of the other decisions which may be classified under the ambiguous heading of "Equity," only normal application of established principles to routine situations seems to have been involved.

Decedents' Estates, Trusts And Future Interests, Herman L. Trautman

Vanderbilt Law Review

The subject matter will be discussed under three headings: "Dece- dents' Estates," "Trusts," and "Future Interests." The section on Decedents' Estates will include developments concerning intestate succession, wills and those problems of fiduciary administration involved in the settlement of decedents' estates; the fiduciary administration problems involving trusts will also be discussed in that section. The developments of the year include court decisions, new legislation, and the work of the Section on Real Property, Probate and Trust Law of the Tennessee Bar Association on proposed legislation.

Labor Law And Workmen's Compensation--1959 Tennessee Survey, Paul H. Sanders, J. Gilmer Bowman, Jr.

Vanderbilt Law Review

What is the meaning of the term "actual cash value" in the standard fire policy? The middle section of the court of appeals, following a prior Tennessee case and the weight of authority, held that the phrase is synonomous with "market value" only where the goods are readily replaceable in a current market. Where there is no market, or where the market value is inadequate to properly indemnify the insured, "actual cash value" means the "'value to the owner' or the loss he suffers in being deprived of the goods." Since the goods involved in this case were personal effects, …

Local Government Law--1959 Tennessee Survey, A. E. Ryman, Jr.

Vanderbilt Law Review

Local government law is primarily made up of special exceptions to and provisions concerning laws of general application, both substantive and procedural. Starting with that premise, this survey is classified into two basic subsections: exceptions resulting from relations between sovereign agents, and exceptions resulting from relations between a sovereign agent and private parties. Because of a trend believed to be of significance with regard to other areas of law, the section on financial policy is considered separately as another subdivision herein.

Satisfactory review of all of the substantive legal subjects touched upon by decisions and legislation which involved local agents …

Contracts -- 1959 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

The distinction between an implied contract (implied in fact) and a quasi contract (implied in law) was presented in a somewhat unusual fashion in the federal case of Holbert v. United States decided by the District Court for the Eastern District of Tennessee. Whether or not a federal district court had jurisdiction over plaintiff's case turned on whether the claim was based on implied contract or on quasi contract.

One of the grounds on which the Tucker Act confers jurisdiction on federal district courts to entertain actions against the United States is where the claim is based "upon any express …

The Care Required Of Medical Practitioners, Allan H. Mccoid

Vanderbilt Law Review

"Into whatever houses I enter, I will go into them for the benefit of the sick, and will abstain from every voluntary act of mischief and corruption." -Oath of Hippocrates.

These words, allegedly formulated by the "Father of Medicine,"define the duties which physicians and surgeons over the years have sworn to perform toward those whom they undertake to treat. Like many oaths, however, the noble sentiments of the Greek physician are not sufficient to provide protection for the public. This is evidenced by the fact that over the twenty year period from 1935 to 1955, according to a survey made …

Tort Liability Of Teachers, Paul O. Proehl

Vanderbilt Law Review

The tort liability of teacher qua teacher encompasses a rather narrow ambit and is largely restricted to cases in which it is alleged that the right of the teacher to enforce discipline has been abused and that the teacher is therefore liable in damages for the commission of an intentional tort. The question in such a case is whether the teacher has exceeded, or acted outside the scope of, his privilege.A particular common law concept was developed very early here defining the privilege as one deriving from the fact that the teacher stood in loco parentis,' and the privilege still …

Professional Negligence -- Some General Comments, William J. Curran

Vanderbilt Law Review

An examination of the tort liability of professional people necessarily involves two areas: (a) an examination of fact situations peculiar to the activities of the various professions, and (b) an analysis of the theoretical basis for professional liability as distinguished, if at all, from any other form of tort liability. In the articles to follow in this symposium, there is a concentration on a particular professional group in addressing each of these questions. In this introductory comment, therefore, an effort will be made to examine some of the general principles of professional liability which may be applicable in many areas.

Interstate Compacts As A Device To Develop And Regulate Atomic Energy, W. Harold Bigham

Vanderbilt Law Review

When the Congress adopted the Atomic Energy Act of 1954, releasing the atom from federal monopoly and inviting the division of regulatory and control functions between the federal government and the states, the gates were opened for large-scale participation by private industry in the new technology. It was natural, therefore, that the states should begin to view with awakened interest the role which they are to play in the development and regulation of this new source of energy. However amorphous the role of the states may be as yet, some preparation is being made to accept the responsibilities which will …

Professional Negligence Of Architects And Engineers, George M. Bell

Vanderbilt Law Review

Our courts have erected a protective legal structure around architects and engineers which has been sufficient, at least in the past, to shelter members of those two professions from any extensive liability for their misconduct. However, it would seem that this legal structure was erected on an unfirm foundation and cracks are appearing in the walls so that occasionally architects and engineers have been held legally responsible for their errors. Such responsibility has in general been confined to a liability to the person hiring the professional service. As yet there has been no case which has ruled the architect or …

Liability Of An Insurance Agent Or Broker In Procuring Or Maintaining Insurance For An Owner, Jack D. Mcneil

Vanderbilt Law Review

The insurance agent or broker is vulnerable to legal attack on several grounds and may incur liability on a variety of theories ranging from breach of implied warranty to fraudulent misrepresentation. The basic fact situation here discussed arises when one desires insurance and the agent sought for the purpose of procuring that insurance fails to do so through a lack of reasonable care. The nature and origin of the duty owed by such an agent or broker, the various instances in which liability arises, the measure and amount of damages collectible, and the defenses available to the agent are discussed.