Christ v. Spizman

• Decision Date: 16 March 1948
• Docket Number: 6 Div. 560.
• Citation: 33 Ala.App. 586,35 So.2d 568
• Parties: CHRIST v. SPIZMAN.
• Court: Alabama Court of Appeals

35 So.2d 568

33 Ala.App. 586

CHRIST v. SPIZMAN.

6 Div. 560.

Alabama Court of Appeals

March 16, 1948

Rehearing Denied May 25, 1948.

P A. Nash and L. P. Waid, Jr., both of Oneonta, for appellant.

Geo Rogers, of Birmingham, for appellee.

HARWOOD Judge.

The suit below grew out of an automobile collision. Plaintiff below, who is the appellee here, filed her suit against the defendant, appellant here, on a complaint containing one count in simple negligence. To this complaint the defendant pleaded the general issue, and two pleas of set-off and recoupment charging wanton negligence and simple negligence respectively.

The jury verdict was in favor of the plaintiff, her damages being assessed at $500.00. Judgment was entered by the court pursuant to said verdict.

Defendant's motion for a new trial being duly filed and overruled appeal was perfected to this court.

The evidence presented was in many aspects undisputed, but conflicting in other material points.

The brief filed by counsel for appellant is in our opinion inadequate on which to base a review of this case.

It consists of a 'Statement of Facts' under which is included a statement of the 'Undisputed Facts; Propositions of Law,' under which 11 propositions are set forth.

The first three 'Propositions' are supported by citation of cases from this State, the fourth by citation of two Louisiana cases. The remaining seven 'Propositions' are unsupported.

These propositions are followed by an 'Argument.' The first paragraph of this argument consists largely of inferences drawn from the facts by appellant's counsel. We conclude from its verdict that the jury drew other inferences from the evidence.

The remaining portion of the argument is as follows:

'Propositions 1, 2, 3, 4, 5, 6 and 7 deals with negligence both simple and wanton. Assignments of error 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 deal or are founded upon negligence either simple or wanton.

'Under assignment of error 2 we think it clearly admissible that the appellant should have been permitted by the court to give her experience in driving an automobile. As we think this was error where the question of negligence arose.

'In our opinion the giving of the charge as set out in assignment of error 7 at the request of the plaintiff was clearly error. The court gave this general charge for the plaintiff as to the wanton plea of the defendant. Under the admitted evidence of the plaintiff herself and her husband who was driving the car, if there were no wantonness in that action I do not see where there could be unless the party admitted that he intentionally did it. This is not required in wanton negligence.

'We insist that each charge that was requested by the defendant and refused should have been given and that it was error for the court to refuse same.

'As to assignment of error 18, the main grounds in the motion for a new trial which was overruled by the court is the same as has been mentioned above, except as to assignments of error 1, 2, 3, 4, 5 and 6. I do not like to criticize the court but the things that took place under assignment of error 1 was very prejudicial to appellant's rights in the matter and the motion for a new trial included this action of the court, which, is our opinion, the court should have granted on that particular motion.

'Assignments of error 3, 4, 5 and 6 are assignments on exceptions to the Court's oral charge which were set out in the motion and which as, we think, was clearly an error. Under the laws of the State of Alabama there is no such thing as a dogfall as the Court charged the Jury. Further, under the laws of the State of Alabama, there could have been no moral victory without the assessment of damage under any verdict for either the plaintiff or the defendant in the Court below.

'We respectfully insist that this cause should be reversed and remanded on the many errors hereinabove set out in this cause.'

In criminal appeals it is the duty of this court to consider all errors apparent on the record, whether assigned or not. Section 389, Title 15, Code of Alabama 1940. In civil appeals only errors assigned will be considered and where the brief of counsel for appellant does not direct the attention of the court to what is deemed error, the appellate court is not required to search the record and cast about for errors not specified in the brief. Morton et al. v. Clark, 10 Ala.App. 439, 65 So. 408.

As to the essential form and elements of an appellant's brief Supreme Court Rule 10, Code 1940, Tit. 7 Appendix, provides as follows:

'Appellant's brief shall contain a concise statement of so much of the record as fully presents every error and exception relied on, referring to the pages of the transcript. If the insufficiency of the evidence to sustain the verdict or finding, in fact or law, is assigned, the statement, shall contain a condensed recital of the evidence in narrative form so as to present the substance clearly and concisely. The statement will be taken to be accurate and sufficient for decision, unless the opposite party in his brief shall make the necessary corrections or additions. Following this statement, the brief shall contain, under a separate heading of each error relied on, separately numbered propositions or points, stated concisely, and without argument or elaboration, together with the authorities relied on in support of them and in citing cases, the names of parties must be given, with the book and page where reported.'

The statement under a separate heading of each error relied on mentioned in the above rule pertains to what is generally called the 'Specifications of Error' in a brief. In many cases our courts have apparently used the term 'Assignments' as synonymous with 'Specifications of Error' when referring to the briefs of counsel rather than to the assignments of error in the record proper.

As stated by this court in J. F. Snellings v. Malvin Jones, Jr., etc., 33 So.2d 371, 372:

'The suing out of an appeal is analogous to the institution of a new suit. The assignment of errors take the place of the declaration or bill. The office of assignments of error is to inform the appellate court and the appellee of the precise errors relied on. Kinnon v. Louisville & N. R. Co., 187 Ala. 480, 65 So. 397; Life & Casualty Ins. Co. of Tennessee v. Womack, 26 Ala.App. 6, 151 So. 881, certiorari denied 228 Ala. 70, 151 So. 880. An assignment of error which does not succinctly point out the error complained of with sufficient clearness and precision will not be considered on appeal. Harden, Inc. v. Harden, 29 Ala.App. 411, 197 So. 94. Errors not assigned will not be reviewed. 2 Ala.Dig., Appeal and Error, k719(1).

'In the hurry of perfecting an appeal it is the usual practice of lawyers to assign as error all matters that might be even faintly meritorious. Upon further study while preparing his brief he may conclude that, in his anxiety to fully cover all possible errors in his assignments, he has included some that are untenable. These he is free to abandon simply by not carrying them forward in his brief and argument, for as a corollary to the rule that errors not assigned will not be considered on appeal is the proposition that assignments not specified in the brief are considered as abandoned.'

The office of a brief in a civil appeal is to aid the appellate court to understand quickly the issues involved and give such court an adequate basis for such understanding. A progressive sifting of the contents of the record proper, discarding those portions not necessary to proper conclusion, and highlighting the acts of the lower court of which the appellant feels he has cause to complain should be the ultimate aim of every brief. An adequate specification of the errors relied on is a necessary step in such refining process.

Actually, no errors are specified in appellant's brief. The eleven propositions set forth cannot be properly so considered.

Since a mere repetition of the assignments of error in an appellant's brief is not a sufficient compliance with Rule 10 as to a statement of the errors relied on, see W. S. Wiles & Son v. Wright, 24 Ala.App. 409, 136 So. 842, certainly the general reference in bulk to such assignments as is done in that portion of the brief labeled 'Argument,' and set out above cannot be so considered.

We think that the following rules governing the contents and form of an appellant's brief may also appropriately be mentioned as pertaining to the defects present in the appellant's brief in this case.

A brief merely complaining in broad terms of rulings made the basis of assignments of error in effect works abandonment of such assignments. Western Union Tel. Co. v. Emerson et al., 14 Ala.App. 247, 69 So. 335.

A mere statement in the argument in the brief that rulings were erroneous amounts to no more than the reservation of exceptions thereto. Mitchell v. Gambill, 140 Ala. 545, 37 So. 402.

It is further well settled that a...