ON PETITION TO REHEAR. The first proposition of the petition to rehear is that the Court deprived petitioners of statutory rights in disposing of these cases without oral argument. For this contention counsel refer to section 10639 of the Code.
This statute has no application. This Court did not reverse the judgment of the Court of Appeals, nor did that Court reverse the judgment of the trial court.
In West Construction Co. v. White, 130 Tenn. 520, 172 S.W. 301, to which counsel refer, this Court reversed the judgment of the Court of Appeals. In W.T. Grant Co. v.Tanner, 170 Tenn. 451, 95 S.W.2d 926, the reference to section 10639 of the Code was obviously a misprint. The intention was to refer to section 10629, the Court of Appeals Act, which requires that cases be set down for oral argument whencertiorari is granted.
It is again urged that the practice followed in Merriman v.Coca-Cola Bottling Co., 17 Tenn. App. 433, 68 S.W.2d 149, should have been followed here and judgments entered upon the verdicts in favor of the plaintiffs.
The Court of Appeals held in that case that where the trial court set aside the finding of the jury by a misapplication of legal principles to the evidence, the appellate court would re-instate the verdict and enter judgment on the verdict instead of remanding the case for a new trial. Petition for certiorari was denied by this Court because there was sufficient evidence to support the verdict tested by correct legal principles. Such is the effect of the cases upon which the Court of Appeals *Page 227 based its rule in Merriman v. Coca-Cola Bottling Co., supra.
In the cases before us we find no evidence sufficient to support the verdicts on any sound theory of law. We could not, therefore, re-instate the verdicts.
The remainder of the petition to rehear consists of an argument based upon the facts. We discussed the evidence in the opinion filed. So did the Court of Appeals. We are not able to view the evidence as counsel does and further discussion would be without profit.
The observations made by the trial judge in setting aside the verdict, which he incorporated in his judgment, could have no more force than like observations would be given had he heard the case without a jury. In the latter event, the judgment would have been affirmed if it could have been rested on any theory supported by material evidence. Weinstein v. Barrasso,139 Tenn. 593, 202 S.W. 920, L.R.A., 1918D, 1174; Stephens v.Mason, 99 Tenn. 512, 42 S.W. 143; Brooks v. PaperCompany, 94 Tenn. 701, 31 S.W. 160.
The petition is denied. *Page 228