Opinion
Opinion filed December 7, 1956.
1. CONSTITUTIONAL LAW.
The Supreme Court is not authorized to give an advisory opinion.
2. APPEAL AND ERROR.
Where tort action against neuro-surgeon would have to be retried, and there were questions of admissibility of evidence which neuro-surgeon sought to have the Supreme Court decide for guidance on the retrial, the Supreme Court would not take jurisdiction since any opinion it might express would be only advisory.
FROM SHELBYJOHN S. PORTER, BURCH, PORTER JOHNSON, Memphis, for Dr. Richard L. De Saussure.
WILS DAVIS and L.E. GWINN, Memphis, for Janice C. Hall, Executrix.
Action by widow, who was husband's executrix, against neuro-surgeon for performance of an unauthorized operation upon husband's spine after neuro-surgeon had allegedly agreed to perform a different operation. The Circuit Court, Shelby County, Greenfield Q. Polk, Circuit Judge, in trial before court and jury, sustained neuro-surgeon's motion for directed verdict and overruled widow's motion for new trial, and widow appealed in error. The Court of Appeals, 297 S.W.2d 81, reversed cause and remanded it to the Circuit Court for new trial, and neuro-surgeon brought certiorari. The Supreme Court, Swepston, Justice, concurred in result of Court of Appeals' opinion but denied certiorari and, on neuro-surgeon's petition to rehear, held that, where, there were questions of admissibility of evidence which neuro-surgeon sought to have the Supreme Court decide for guidance on retrial of the case, the Supreme Court would not take jurisdiction since any opinion it might express would be only advisory.
Petition denied.
On Petition to Rehear
In this case we concurred in the result of the opinion of the Court of Appeals but denied certiorari. We now have this petition to rehear on behalf of Dr. De Saussure in which it is stated that in view of the fact that this case will have to be retried, there are certain questions of admissibility of evidence which this Court should decide for guidance on the retrial of the case.
In view of the fact that this Court did not take jurisdiction of the matter, any opinion that we might express would be an advisory opinion which we are not authorized to give. Crane Enamelware Co. v. Smith, 168 Tenn. 203, 76 S.W.2d 644; Kendall Oil Co. v. Payne, 200 Tenn. 600, 293 S.W.2d 43, an opinion of this Court announced July 20, 1956.