On Petition for a Rehearing.
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 *487Goodwin v. Goodwin, 48 Ind. 584, and Western Union Tel. 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 placed respectively upon the sixth and eighth instructions given by the circuit court are erroneous, because there is nothing either in the textbooks, 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 indulgences 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 siatute 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 beld 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 *488yet, however deliberately and intentionally one may kill another in battle, the former stands excused by the unwritten* but higher, law of war. We might give many other illustrations of the flexibility of general as well as of positive statutes.
One of the most thoroughly established rules in the government of a school permits a teacher to punish a pupil for a violation of good order and necessary discipline, and the reasonableness of such a rule, as an abstract proposition, has never, as we are aware, been seriously questioned; but the nature and extent of the punishment which may be thus inflicted have always been made to depend upon the circumstances of each particular case. Cruel or excessive punishment has ever been construed tobe both an unreasonable and an improper enforcement of this long established rule.
That abuses may be practiced in the pretended enforcement of a rule adopted for the government of a school, affords no argument against the reasonableness of the rule, having reference to the legitimate purposes for which it was adopted..
The distinction between the reasonableness of a school regulation, general in its character, and its negligent or improper enforcement, which we have attempted to define, however novel in form, is nothing more than a logical deduction from the general principles firmly and continuously recognized in the government of schools, and especially public schools. This view is amply sustained by the illustrations we have already given.
In answer to criticisms made upon our construction of some parts of the evidence, we need only state, in general terms, that we might well have contented ourselves with saying at the former hearing that, however much at fault the appellee’s teacher may have been in regard to any of the matters complained of in the complaint, there was no evidence either showing, or fairly tending to show, that the appellant, had any actionable connection with, or personal responsibility for, the mistakes or misconduct of the teacher touching such. *489matters. Such was in effect our conclusion at the time, and nothing has been since adduced to change our conclusion in that respect; consequently, as the evidence did not make a case against the appellant, the appellee has no cause to complain of our view of the evidence in "its abstract application to what may have occurred between her and her teacher.
Filed Nov. 5, 1887.Conceding our view of the evidence, in the respect last stated, to be erroneous, it does not affect the merits of the controversy between the appellant and the appellee. But, considering the immunity which the law extends to a teacher who acts in good faith and is impelled by proper motives in the government of his school, we see no reason to change our formerly intimated, if not expressed, opinion that the evidence would not have sustained an action against the appellee’s teacher if she, instead of the appellant, had been the defendant.
Other questions are discussed by counsel, but nothing is offered which throws any new light upon the cause as it was originally presented.
On the general subject here discussed, further reference is made to 25 Central Law Journal, 339.
The petition for a rehearing is overruled.