Fertich v. Michener

• Court: Indiana Supreme Court
• Writing for the Court: Niblack
• Citation: Fertich v. Michener, 111 Ind. 472, 14 N.E. 68 (Ind. 1887)
• Decision Date: 05 November 1887
• Parties: Fertich v. Michener.

111 Ind. 472

14 N.E. 68

Fertich

v.Michener.

Supreme Court of Indiana.

November 5, 1887.

Appeal from circuit court, Shelby county; K. M. Hord, Judge.

On petition for rehearing. See 11 N. E. Rep. 605.

D. L. Wilson, J. B. McFadden, and L. F. Wilson, for appellant. B. F. Love, O. J. Glessner, N. B. Berryman, L. J. Hackney, E. K. Adams, and H. C. Morrison, for appellee.

Niblack, J.

Rule 24 of this court provides that a rehearing must be applied for by petition in writing, setting forth the cause for which the judgment is supposed to be erroneous. As applicable to that rule, see the cases of Goodwin v. Goodwin, 48 Ind. 584, and Telegraph Co. v. Hamilton, 50 Ind. 181. The petition in this case fails to specify the particular causes, or any particular cause, on account of which the opinion heretofore announced is supposed to be erroneous, and hence does not comply with the rule in regard to rehearings above stated. An elaborate brief has, however, been filed in support of the petition, and as the case is in many respects one of public interest, we will nevertheless briefly consider some of the argumentative causes for a rehearing assigned by the brief.

It is claimed that the constructions we respectively placed upon the sixth and eighth instructions given by the circuit court is erroneous, because there is nothing either in the text books, or in any of the previously decided cases, which sustains the distinction recognized by us between the reasonableness of a rule adopted for the government of a public school and the unreasonable or improper enforcement of such a rule. This claim is based upon the alleged ground that such a rule, to be valid, must have a uniform and humane operation upon all alike, and must be of a character to restrain all school officers from inflicting cruelty or injustice on the one side, or from granting special indulgence to particular pupils on the other side, under its authority We agree that such a school regulation must be operative on all alike, but by that is meant that it must apply to all alike under the same circumstances, that is, to all similarly situated. It is only in this sense that the most sweeping provisions of a statute can be made to have a uniform application. We have a statute which makes railroad companies liable for stock killed at places on their roads which are not securely fenced, and yet we have uniformly held that the provisions of that statute do not apply to places at which public policy does not permit fences to be erected. Under the strict letter of the statute, the deliberate and intentional killing of one person by another is murder, and yet, however deliberately and intentionally one may kill another in battle,...