Suits v. Glover, 8 Div. 711

• Decision Date: 11 March 1954
• Docket Number: 8 Div. 711
• Parties: , 43 A.L.R.2d 465 SUITS v. GLOVER.
• Court: Alabama Supreme Court

Page 49

71 So.2d 49

260 Ala. 449, 43 A.L.R.2d 465

SUITS v. GLOVER.

8 Div. 711.

Supreme Court of Alabama.

March 11, 1954.

J. W. Sherrill, Jr., Decatur, for appellant.

Peach, Caddell & Shanks, Decatur, for appellee.

SIMPSON, Justice.

Tort action by appellant, a schoolboy suing by his father as next friend, against appellee, a former schoolteacher, claiming damages in three counts of the complaint for assault and battery. A jury trial was had resulting in a verdict in favor of appellee. The appellant's motion for new trial, the grounds of which were that the verdict was contrary to the law and was not sustained by the preponderance of the evidence, was overruled and he now appeals to this court.

The failure of an appellant to insist upon errors assigned on the record constitutes a waiver thereof and precludes any consideration by this court. Supreme Court Rule 10, Code 1940, Title 7 Appendix; Coffee County v. Parrish, 249 Ala. 226, 30 So.2d 578; Nolan v. Moore, 254 Ala. 74, 46 So.2d 825; Louisville & N. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001.

And the brief is insufficient which makes some general propositions but which fails to make specific application to the ruling assigned as error, as the Court cannot be put to a search for error not specifically assigned and argued in brief. Schneider v. Southern Cotton Oil Co., 204 Ala. 614, 87 So. 97.

Also, the ground of the motion resting on the challenge that the verdict was contrary to law cannot be considered because the claimed error was not specifically pointed out; a general assignment to that end will not suffice. Cobb v. Malone, 92 Ala. 630, 9 So. 738.

Consonant with these established rules of procedure, it must be held that the only assignment of error which might be said to be sufficiently argued and can thereby invite a review by this court is that one challenging the action of the trial court in refusing to grant the appellant's motion for a new trial on the weight of the evidence. Cobb v. Malone, supra.

There was no conflict but that certain punishment was administered to the appellant, a school pupil, by the appellee, a schoolmaster. The evidence was, however, conflicting as to the type of instrument used to administer the punishment; the appellant's evidence tending to show that he was whipped with a slat from an apple crate and the appellee's evidence tending to show that the instrument used was a ping-pong paddle, commonly used by the school for administering such punishment. There was evidence that the appellee was responsible for maintaining order and discipline and to administer corporal punishment as was deemed necessary as punishment for infractions of the school rules. Further, there was evidence of an infraction of the school rules by the appellant, the nature of which was insubordination and scuffling in the school hall. The appellant's medical expert testified that in his opinion there was no permanent injury and the evidence showed that the appellant...