Dixie Feed & Seed Co. v. Byrd

On Petition To Rehear

Petitions to rehear have been filed by Dixie Feed & Seed Company and its driver Johnson and by Dixie Portland Flour Mills, Inc.

In their petition to rehear Dixie Feed & Seed Company and Johnson first complain because we failed to pass on whether the Feed & Seed Company was subject to process under T. C. A. sec. 48-923. Having held the Feed & Seed Company and Johnson subject to process under T. C. A. sec. 20-224, it was not necessary to hold whether the Feed & Seed Company was also amenable to *640 service as a non resident corporation doing business in Tennessee. This Court is not required or expected to rule upon questions of law deemed to be immaterial or non-determinative of the result. To do so would invite confusion and uncertainty as to whether the holding should be regarded as authoritative or mere dictum.

These petitioners further complain because we failed to pass upon the constitutionality of T. C. A. sec. 48-923 and T. C. A. sec. 20-224. As pointed out it was unnecessary to pass upon the applicability of T. C. A. sec. 48-923. This holding eliminated the necessity of passing upon its constitutionality. As to the constitutionality of T. C. A. sec. 20-224, we cited and quoted at some length from Bertrand v. Wilds, 198 Tenn. 543 , 281 S. W. (2d) 390 , where the question of the constitutionality of the statute is discussed and the statute sustained as a proper exercise of .the police power. It was our intention to hold it constitutional. It is so held.

The petition to rehear of the Feed & Seed Company and Johnson are overruled.

The first ground of the petition filed in behalf of Dixie Portland Flour Mills is that we erroneously treated its motion as a general motion for a directed verdict when, in fact, the following was added at the end of the motion: “and a special motion on each count of the declaration”.

We need not decide whether this language had the effect of making the motion something more than a general motion for a directed verdict. Even if it did have that effect, failure of the Court to sustain the motion as to the second count of the declaration charging a violation of the ordinances of the City of Chattanooga adopting a building code did not constitute reversible error in view *641 of the evidence of common law negligence tending to sustain the first count of the declaration.

In City Transportation Corp. v. Seckler, 32 Tenn. App. 661, p. 667 , 225 S. W. (2d) 288, p. 291 , it was said:

“If we are mistaken, however, in holding that the court was not in error in overruling the motion for directed verdict as to the charge of the declaration respecting the school zone speed limit, we are clearly of opinion it is the duty of this court to treat any error in respect to that charge as harmless and apply to the judgment the findings of the jury on the common law counts and the charges of violating the 30 mile speed limit in business and residential areas contained in the statutory count. ’ ’

The opinion cites in support of the holding the opinion of Mr. Chief Justice Green in Tennessee Central Railway Co. v. Umenstetter, 155 Tenn. 235 , 291 S. W. 452, 453 , and see Taylor et al. v. Cobble et al. cited in our original opinion.

Under the second ground of the petition to rehear it is insisted we failed to respond to petitioner’s assignment of error complaining that the trial court erred in admitting into evidence a building code “in no way relevant to the issues before the court.”

As noted in our original opinion the witness Betts, a structural engineer, testified as to the instability of the wall. The Flour Mills offered no evidence to the contrary. Thus there was undisputed evidence from which the jury could find common law negligence. It is immaterial whether, as charged in the declaration, the wall as so constructed was also in violation of the building-code which the Flour Mills insists does not apply. It, *642 therefore, does not affirmatively appear that, even if erroneous, the admission of this evidence affected the result of the trial.

Under T. C. A. sec. 27-117, we are forbidden to reverse where there is sufficient competent evidence to sustain the verdict and it does not affirmatively appear that the erroneous admission of evidence affected the result. Louvier v. Nashville, 1 Tenn. App. 401 ; Butler v. State, 185 Tenn. 686 , 207 S. W. (2d) 584 ; Management Services, Inc. v. Hellman, 40 Tenn. App. 127 , 289 S. W. (2d) 711 .

It is next insisted we erred in not reversing because of certain remarks made by the trial judge in the presence of the jury. The assignment predicated upon these remarks was overruled because not embraced within the motion for a new trial.

We are also asked to limit the time within which the remittitur may be accepted. The time will be limited to the period of 10 days after the filing of this opinion.

For reasons indicated we adhere to our original conclusion that the judgment should be affirmed, subject to the suggested remittitur.

Cooper, J., and Taylor, Special Judge, concur.