Great Atlantic & Pacific Tea Co. v. Smalley

• Decision Date: 08 May 1934
• Docket Number: 6 Div. 457.
• Citation: 26 Ala.App. 176,156 So. 639
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. SMALLEY.
• Court: Alabama Court of Appeals

156 So. 639

26 Ala.App. 176

GREAT ATLANTIC & PACIFIC TEA CO. v. SMALLEY.

6 Div. 457.

Court of Appeals of Alabama

May 8, 1934

Rehearing Denied June 5, 1934.

Appeal from Circuit Court, Jefferson County; R. B. Carr, Judge.

Action by H. M. Smalley against the Great Atlantic & Pacific Tea Company, for assault and battery and false imprisonment. From a judgment for plaintiff, defendant appeals.

Affirmed.

Certiorari denied by Supreme Court in Great Atlantic & Pacific Tea Co. v. Smalley (6 Div. 606) 156 So. 641.

J. L Drennen, of Birmingham, for appellant.

Beddow Ray & Jones, of Birmingham, for appellee.

RICE, Judge.

It is our opinion, and we hold, that the witness Carlyle appellant's store manager, was, under the testimony, for the purposes here involved, appellant's alter ego, or principal. Southern Bell Telephone Co. v. Francis, 109 Ala. 224, 242, 19 So. 1, 31 L. R. A. 193, 55 Am. St. Rep 930.

It results that, appellee's testimony being, obviously, more than a "scintilla," there was no error in refusing the general affirmative charge, duly requested by appellant, as to any of the counts of the complaint; nor as to the complaint as a whole. Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411.

While we have examined each of the said assignments of error, together with the rulings underlying same, and are persuaded that the said assignment has no merit, yet we feel constrained to apply the rule recently laid down by our Supreme Court (Code 1923, § 7318) for our guidance, and decline to discuss the following designated assignments of error, to wit: First, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth.

The rule we refer to is deducible from the following excerpt from the opinion by Mr. Associate Justice Brown in the case of Futvoye et al. v. Chuites et al., 224 Ala. 458, 140 So. 432, 433, to wit: "The appellants' treatment of assignments of error 5 and 6 is not sufficient, under the repeated rulings here, to invite consideration and treatment of these assignments. As to assignment 5, they say: 'The court should have sustained defendants' demurrer to plaintiffs' replication No. 2, as the matters set up therein were mere conclusions of the pleader, and no facts are averred on which to base such conclusions.' The same treatment is accorded assignment 6."

While we do not know that the Supreme Court has undertaken to direct the way and manner in which an "argument" shall be made, in order to merit being denominated an "argument," still, from the quoted excerpt just set out, it seems clear that merely "asserting," even if in a variety of ways, that the ruling underlying a given assignment of error is erroneous, is not sufficient. The duty rests upon the appellant, in a civil case, to "point out" error; and "pointing it out" consists of more than merely saying: "There it is!" We venture to suggest that it includes pointing out, under the law-cited- why it is error.

The "argument" of each of the assignments of error we have listed above does not, in our opinion, rise to any greater degree of efficacy than the "argument" of the assignments of error which the Supreme Court refused to consider in the Futvoye et al. v. Chuites et al. Case, mentioned; hence our decision to omit consideration of said assignments. Code 1923, § 7318, supra.

We do not wish to be understood, however, as being in any sense...