Vanderbilt Law Review

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Chapter 145 of the 1955 Public Acts' enacted by the Tennessee Legislature, purporting in some degree to permit a third-party action, has evoked considerable interest among members of the Tennessee Bar and liability insurance carriers.

The act provides that when a defendant deems some other party primarily liable to the plaintiff, then the defendant may file a cross action against the third party. It will be recalled that when the Federal Rules of Civil Procedure were first promulgated, Rule 14 provided that a defendant, deeming a third party liable to himsel for to the plaintiff, could make such third party a defendant to the cause. The effect of this rule was that the plaintiff could have judgment against either the original defendant or the third-party defendant even though the plaintiff had never himself sued the third-party defendant. Because of the novelty of this procedure and the fact that it was not the intent of the federal rules to change substantive law, Rule 14 was soon amended so as to delete the portion that permitted such a cross action when the defendant deemed the third party liable to the plaintiff, so that such cross actions are now only permitted on an allegation that the third party is liable to the original defendant.

It appears, therefore, that the Tennessee statute is unlike the original federal rule in that Chapter 145 does not contemplate plaintiff having judgment against the third-party defendant, and is unlike the present federal rule in that the allegation required is not that the third party is liable to the defendant but rather that he is "primarily liable to the plaintiff."