Citation Numbers: 224 Tenn. 63, 450 S.W.2d 312
Judges: Canless, Creson, Dyer, Humphreys, Jenkins
Filed Date: 1/16/1970
Status: Precedential
Modified Date: 10/17/2022
delivered the opinion of the Court.
Plaintiff-in-error Evelyn L. Bellar sued National Motor Fleets, Inc., Burton Manufacturing Company and Barry M. Jackson, for damages for injuries allegedly sustained in an automobile accident in Davidson County. Plaintiff got service of process on Burton Manufacturing Company and Barry M. Jackson through the secretary of state of Tennessee, under T.C.A. sec. 20-224. On the plea of Burton Manufacturing Company and Barry M. Jackson, the defendants before the Court, the suit was abated on the ground the venue of the action was in the county where the plaintiff resided, Robertson County, Tennessee. The trial court was evidently of opinion the question of venue was foreclosed against plaintiff Bellar by Carroll v. Matthews, 172 Tenn. 590, 113 S.W.2d 742 (March 5, 1938); Carter v. Schackne, 173 Tenn. 44, 114 S.W.2d 787
Plaintiff Bellar contends these opinions are not controlling. That the facts in her case are different, so the opinions are dictum. She argues that the common law rule, that the right of trial by jury fixed the venue in every action at the locality where the fact arose, whether in a local or a transitory action, should prevail, Haynes v. Woods, 151 Tenn. 163, 268 S.W. 632 (December 1924).
In Carroll v. Matthews, supra, a suit on an automobile tort in Blount County against a nonresident, where service of process had been gotten through the secretary of state under this statute, was abated in the trial court because the secretary of state resided in Davidson County, Tennessee, and venue was in that county. On appeal, noting plaintiff resided in Blount County, this Court construed the statute and held: “So we conclude that by force of section 8671 and Code sections 8640 and 8641 the secretary of state is the agent of nonresident defendants in each of the several counties of the state, and as such agent may receive process or be served with process as if the nonresident defendant was a resident of plaintiff's county, the cowaty of action.”
As we read this opinion the Court said that the “county of action” is the county of plaintiff's residence. This appears not only from the language of the opinion, but from the fact no consideration was given to the allegation the accident occurred in Blount County.
The statute was next considered in Carter v. Schackne, supra. In that case plaintiff, a resident of Davidson County, sued in Davidson County for the alleged wrongful killing of his intestate there. Service of process was
This statute was again before this Court in Thomas v. Altsheler, et al, supra, where the question was as to the venue of an action brought by nonresidents of the State of Tennessee against nonresidents of this state. It was held that there was no statute fixing venue in such a case, so that venue was fixed by the common law rule in the county where the accident occurred. Haynes v. Woods, supra. In this opinion, however, the construction placed
Contrary to plaintiff-in-error’s insistence, the rulings in Carroll v. Matthews, and Carter v. Schackne are not dictum. Dictum is an opinion expressed by a court upon some question of law which is not necessary to the decision of the case before it. Bouvier’s Law Dictionary; Stanten, v. State, 191 Tenn. 157, 232 S.W.2d 18. In Black’s Law Dictionary, 2d Ed., the following definition is found:
“The word is generally used as an abbreviated form of obiter dictum, ‘a remark by the way;’ that is, an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination; any statement of the law enunciated by the court merely by way of illustration, argument, analogy, or suggestion.”
Another definition given by Black is one taken from Rohrbach v. Germania Fire Insurance Co., 62 N.Y. 47, 58, 20 Am.Rep. 451.
“Dicta are opinions of a judge which do not embody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed deliberate determinations of the judge himself. Obiter dicta are such opinions uttered by the way, not upon the point or question, pending, as if turning aside for the time from the main topic of the case to collateral subjects.”
It is clear that under these definitions the rulings in Carroll and Carter are not dictum in the present ease. The rulings involved the construction of the statutory
Since for more than thirty years the words of the statute, “county of action”, has been construed as fixing venue in the county where plaintiff resides, and the legislature has not seen fit to amend the statute to provide otherwise, actually avoiding such a change in the enactment of a later venue statute, T.C.A. sec. 20-224, stare decisis requires that the assignments of error be overruled and the judgment of the trial court affirmed.