Law Commons^™

Agency -- 1964 Tennessee Survey, John S. Beasley

Vanderbilt Law Review

During the period covered by this Survey several cases have raised rather interesting points for consideration under the law of agency. On one occasion the Tennessee Supreme Court declined the opportunity of joining the ranks of the majority of states in moving toward a more modern rule on employer's liability with respect to an employee's child injured negligently by the employee. In this and other decisions, the courts have followed Tennessee precedent rather closely, with the result that there are few changes in the law of agency.

Torts -- 1964 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

As usual, the Tennessee appellate courts decided a considerable number of tort cases last year, covering a wide variety of problems.There were no striking new developments. In fact, the two decisions which were awaited by the profession with the greatest interest, Kyker v. General Motors Corporation' and Texas Tunneling Co. v. City of Chattanooga, tend to slow down some modem developments. In the Kyker case, it was indicated that manufacturers are not yet strictly liable in Tennessee, at least on warranty grounds, without privity of contract. In the Texas Tunneling case, a federal court undertaking to apply Tennessee law placed …

Evidence -- 1964 Tennessee Survey, Lyman R. Patterson

Vanderbilt Law Review

The difficulty in dealing with presumptions arises in part from the fact that the term embraces a host of different meanings, varying with the purposes underlying the presumption in a given situation. Unfortunately, the courts seldom articulate the meaning which they are attributing to the term and consequently do little to clear up the confusion... In Arnett v. Fuston, a negligence action, plaintiff argued that a verdict of not guilty against one of the two co-defendants was not supported by any evidence, and that a presumption should apply against him "for his election to stand on his motion for directed …

Legislation, Law Review Staff

Vanderbilt Law Review

Budget Planners--Regulation To Protect Debtors

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Criminal Law--Taxation of Court Costs

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Statute of Limitations--Professional Negligence--Foreign Objects Left in Patient's Body

Contracts -- 1963 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

Both the one year provision and the sale of goods provision of the Statute of Frauds were construed in Anderson-Gregory Co. v. Lea.'Regarding the duration of the contract, the facts in the opinion are somewhat sparse... The court held that the contract did not come within this provision of the statute. If a contract could have been performed, under its terms, within a year from the time of its making, it is not within the Statute of Frauds, even though it is improbable that the contract would be performed within a year.

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The Tennessee Supreme Court case of Oman …

Procedure -- 1963 Tennessee Survey, William I. Harbison

Vanderbilt Law Review

In two important decisions rendered during the survey period the Tennessee Supreme Court considered some of the aspects of joinder of actions under present circuit court practice. In the first of these, Necessary v. Gibson,' plaintiff joined a count for personal injuries resulting from defendants' alleged negligence with a count seeking recovery in contract based upon alleged promises of defendants to pay plaintiff for her injuries and expenses arising out of the same accident.

Torts -- 1963 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The elements of a valid cause of action in negligence are specifically enumerated by Justice Holmes of the Tennessee Supreme Court in the case of Ruth v. Ruth:

1. A duty of care owed by the defendant to the plaintiff.

2. A failure on the part of the defendant to perform that duty.

3. An injury to the plaintiff resulting proximately from the defendant's breach of that duty of care.

This outline will be used for the treatment of general questions of negligence, and particular fact situations will then be subsequently treated.

Torts -- 1962 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

Most of the tort cases during the survey period do not involve any significant changes in the law. Mindful of the necessity of stability and predictability, and of a tradition of even-handed continuity, our courts have been naturally hesitant to upset established rules. However, in a few areas (injuries to unborn children, application of the immunity doctrine to a minor whose disability is removed, scope of liability for negligent misrepresentation) the courts have been faced with new problems and changed conditions. In these areas the decisions frankly accept responsibility for some development of legal doctrine to keep it responsive to …

Torts -- 1961 Tennessee Survey (Ii), John W. Wade

Vanderbilt Law Review

The twenty tort cases decided during the shorter survey period this year all involved negligence actions.' Most of the cases involved the application of established rules or standards to new fact situations, some of them being fairly routine. Only two cases were of striking significance.

Torts -- 1961 Tennessee Survey, Dix W. Noel

Vanderbilt Law Review

The tort cases reported during the past year were of unusual interest. A number of them dealt with points of first impression in this state. Others represent developments of the law designed to bring it into harmony with changing conditions, as in the application of the res ipsa loquitur doctrine to the unexplained fall of an air-liner, or in the clarification of the duties of an automobile driver to a mere licensee in the vehicle. While the basic pattern for justice in the field of torts has been worked out by our courts with much care and wisdom, occasional modifications …

Bills And Notes -- 1961 Tennessee Survey, John A. Spanogle Jr.

Vanderbilt Law Review

The Tennessee courts decided three cases involving commercial paper this year. The Tennessee Supreme Court decided one case which, unless it is clarified in the near future, may upset principles which were heretofore well-established. Of the two cases decided by the appellate courts, one adopted a rule well-known in other jurisdictions, and the other adopted a sound minority view on a question not settled by the Uniform Negotiable Instruments Law.

Routine Bifurcation Of Jury Negligence Trials: An Example Of The Questionable Use Of Rule Makings Power, Jack B. Weinstein

Vanderbilt Law Review

The Federal District Court for the Northern District of Illinois recently adopted a rule providing for submission of the issues of negligence to a jury before evidence on the issue of damages is introduced (hereinafter sometimes referred to as the bifurcation rule or split trial rule). While reflecting a commendable spirit of judicial responsibility for reducing court congestion, the issue of its propriety raises some of the most subtle and difficult problems of the proper relation of courts to legislature in our system of independent branches of government; of the characterization of matters as substantive and procedural for various purposes; …

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

Torts -- 1960 Tennessee Survey, John W. Wade

Vanderbilt Law Review

As usual, there were about forty reported Torts cases this year. There were no striking new developments. Many of the cases were merely routine, some of them indeed carrying quite long opinions without deciding anything which will give them real value as precedents for the future. The great majority of the cases involved actions for negligence, considerably more than half the cases being concerned with traffic accidents.

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 …

Negligence Liability Of Artisans And Tradesmen, Jerry L. Moore

Vanderbilt Law Review

The purpose of this Note is to examine certain aspects of the tort liability of nonprofessional persons who engage in a trade or craft which requires skill and abilities not ordinarily possessed by the average man. Since, with such a wide range of subjects, an adequate treatment of all the problems peculiar to each trade would require volumes, it is necessary at the outset to place rather narrow limitations on the scope of this analysis. Perhaps it is best to define the outside limits in the form of two "issues" as follows. When a person engages in a certain trade …

Book Reviews, John C. Wahlke, Walter P. Armstrong, Jr.

Vanderbilt Law Review

The State Legislative Institution By Jefferson B. Fordham Philadelphia: University of Pennsylvania Press. 1959. Pp. 109.

reviewer: John C. Wahlke

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Handling Accident Cases By Albert Averbach Rochester: The Lawyers Co-operative Publishing Co. 1958. Pp. xii, 1505.

reviewer: Walter P. Armstrong, Jr.

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.

Developments In The English Law Of Medical Liability, John G. Fleming

Vanderbilt Law Review

Throughout the common law world, as indeed elsewhere, our generation has been witness to an unmistakable, if not always consistent, trend of increasingly disassociating the administration of accident law from the philosophy of individual fault in favor of the collectivist principle of loss distribution, as evidenced in the movement towards stricter liability in litigation areas with a background of liability insurance. However debatable the measure of this reorientation in the United States,' it has taken very large strides in the several jurisdictions of the British Commonwealth where a pattern of loss allocation is now visibly emerging which, in many respects, …

Modern Techniques In The Preparation And Trial Of A Medical Malpractice Suit, Fitz-Gerald Ames Sr

Vanderbilt Law Review

Though it is true that in malpractice suits more than in any other type of litigation, the plaintiff must have a strong case on the merits, it is equally important and almost a necessity in most malpractice cases that patient's counsel carefully and thoroughly condition the jurors' minds from the very outset to a psychological acceptance of this type of litigation. Far too many veniremen, before they have been selected as trial jurors in a malpractice suit, have the attitude that (1) a "malpractice" suit connotes conduct either criminal, quasi-criminal or unethical on the part of the doctor or hospital; …

Liability For Negligence Of Pharmacists, George S. King

Vanderbilt Law Review

The purpose of this article is to discuss the liability of pharmacists for professional negligence.' Thus it will be limited to that conduct which arises out of their professional activity and is to be distinguished from liability which may arise out of their activity as a storekeeper or a druggist, using the latter term in the general sense to include all those who operate a drug store or in any fashion engage in the business of supplying drugs, whether licensed pharmacists or not. For example, the pharmaceutical manufacturer may well be classed as a druggist, but his legal responsibilities would …

The Attorney's Liability For Negligence, John W. Wade

Vanderbilt Law Review

The concept of negligence was late in developing in the common law. Perhaps the first group of cases in which the idea began to take shape involved the liability of persons who professed competence in certain callings.' One of these "callings" was that of the attorney,and cases as early as the middle of the eighteenth century hold an attorney liable on this basis.

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.

Liability Of Funeral Directors For Negligence, Edgar E. Smith

Vanderbilt Law Review

Funeral directing cannot be classed absolutely as a "profession."'On the contrary, the funeral director's principal concern probably is the sale of caskets and burial supplies, thus making him a "merchant"or "trader." However, for purposes of rendering services in connection with the care and burial of the dead as well as in accommodating the family and friends of the deceased, the funeral director is considered a "professional man." It is the latter capacity which is under consideration here. It is inconsequential for legal purposes whether a mortician is referred to as a "funeral director," an "embalmer," or an "undertaker." An embalmer …

Professional Negligence Liability Of Public Accountants, Carl S. Hawkins

Vanderbilt Law Review

At least since 1905, in this country, accountants have been recognized as "a skilled professional class ... subject generally to the same rules of liability for negligence in the practice of their profession as are members of other skilled professions."' The question, then, is not whether the usual concepts of professional negligence apply to accountants, but how. What situations have produced malpractice litigation? What are the specific practices or omissions which have resulted in liability? And what are the limits of liability? Like other professionals, the accountant usually gets into the position where he must exercise his professional skill as …

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 …

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.'

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 …

Torts -- 1957 Tennessee Survey, John W. Wade

Vanderbilt Law Review

One who performs an act is ordinarily under a duty to act carefully.When the defendant has acted there is seldom a problem regarding the duty to use care. But when the defendant has failed to act the question of duty raises a substantial problem.' The rule is stated that there is no duty to act, but the exceptions are many. One arises when there is a particular relationship between the parties; another, when the defendant had commenced to act. Both exceptions are involved in Union Carbide & Carbon Corp. v. Stapleton.