Opinion
No. 32384.
November 9, 1936. Suggestion of Error Overruled November 23, 1936.
1. TRIAL.
Where only one reasonable conclusion can be drawn from evidence, question is for trial court.
2. TRIAL.
Where more than one inference can be drawn from evidence, question is for jury.
3. INSURANCE.
Whether injury sustained by applicant for membership in fraternal society which resulted from act of society's agent, in excess of prescribed ritual should be considered one of normal risks of ceremony, so as to render society responsible, held for jury, particularly where society was chargeable with notice that some, if not all, of its local camps were going beyond prescribed ritual in taking in members.
APPEAL from the circuit court of Simpson county. HON. EDGAR M. LANE, Judge.
Shannon Schauber, of Laurel, and Rainey T. Wells, of Omaha, Neb., for appellant.
We submit that the plaintiff wholly fails to sustain any part of the declaration except the part that Bennie Lee Banks was hit by a paddle. We submit further that the uncontradicted and undisputed testimony shows that W.A. Martin, Jr., and P.D. Fisher did not have any authority or anything to do with any initiation as agents of the Sovereign Camp, Woodmen of the World. We further submit, and under all the testimony, and every witness swore to this, both for the plaintiff and defendant, that there was not anything in the ritual authorized by the Sovereign Camp, Woodmen of the World, which permitted any hazing or paddling.
We further submit that the uncontradicted testimony shows that the ritualistic work had been concluded before any horseplay was indulged in. We also submit that the uncontradicted testimony shows that the only authority the camp had was that given it by the ritual and that if it did anything else it departed absolutely from the prescribed ritual, and was acting without any authority conferred upon it by the Sovereign Camp, Woodmen of the World.
Jumper v. Sovereign Camp, W.O.W., 127 Fed. 635.
We most respectfully submit that in the case at bar there has not been any such relationship shown between the Sovereign Camp, W.O.W., and Pinola Camp, as would make the Sovereign Camp responsible for an unauthorized act of the said Pinola Camp.
Kaminiski v. Knights of Modern Maccabees, 109 N.W. 33; Grand Temple and Tabernacle of Knights and Daughters of Tabor of the International Order of Twelve v. Johnson, 135 S.W. 173, 171 S.W. 490.
In the case at bar the paddle was absolutely prohibited by the ritual and not authorized by the ritual, nor was it furnished by the Sovereign Camp, W.O.W. The testimony shows that the Sovereign Camp, W.O.W., did not have any knowledge of the use of this paddle. The testimony further shows that no one was authorized, directed or empowered, as agent of the Sovereign Camp, to use a paddle in inducting a person into membership in any local camp of the W.O.W.
Hand v. Industrial Life Health Ins. Co., 165 So. 616; A.L.R., Restatement Agency, sec. 229.
The undisputed testimony shows most clearly that the Sovereign Camp, W.O.W., had an authorized ritual, that they turned it over to the local camps to be used in inducting members into the local camps, and that there was nothing in this ritual which permitted any hazing or paddling. The Sovereign Camp, W.O.W., could by no stretch of the imagination, anticipate anything like this was going to be done, nor did they ever authorize it to be done.
We submit without fear of successful contradiction that no one could say that using the paddle was in furtherance of the business of the Sovereign Camp, W.O. W. It could not be construed that way. It was not a part of the ritual. It was prohibited by the ritual, and no one could believe that the Sovereign Camp had reason to suspect that such an act would be done in initiating an applicant into membership in Pinola Camp No. 481, W.O.W.
Jumper v. Sovereign Camp, W.O.W., 127 Fed. 635; Hand v. Industrial Life Health Ins. Co., 165 So. 616.
Where a servant or an agent steps outside the line of authorized duties or outside the scope of his employment, then the principal is not liable.
Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147; Jahn v. Owens, 168 So. 622.
We respectfully submit that the act of using the paddle after the protection degree had been concluded, was so unlike that authorized in the ritual that it was substantially different. The Sovereign Camp, W.O.W., could not be held for this unauthorized act.
J.P. A.K. Edwards, of Mendenhall, for appellee.
A principal is responsible for the acts of his agent done within the scope of his employment and within the line of his duties, though the agent seeks to accomplish the principal's business by improper or unlawful means, or in a way not authorized or known to the principal, or even contrary to his express directions.
Supreme Lodge of World, Loyal Order of Moose v. Kenny, 73 So. 519.
In the case above cited we have a case on "all fours" with the case at bar. The purposes of the organization in the case cited were the same as in the case at bar. The organization of the local lodges was the same. The local lodges were under the absolute control and supervision of the grand lodge under the constitution and by-laws as the case at bar.
Mitchell v. Leech, 69 S.C. 413, 48 S.E. 290, 66 L.R.A., 732, 104 Am. St. Rep. 811; Supreme Lodge K. of P. v. Withers, 117 U.S. 260, 20 Sup. Ct. 611, 44 L.Ed. 762; Murphy v. Independent Order S. D. of J. of A., 77 Miss. 830, 27 So. 624, 50 L.R.A. 111; Bragaw v. Supreme Lodge K. L. of H., 128 N.C. 354, 38 S.E. 905, 54 L.R.A. 602; Reynolds v. Witte, 13 S.C. 5, 36 Am. St. Rep. 678.
The jury was warranted in believing from the evidence, the fact that Mr. Martin and Fisher, the field representatives, responsible for the work in South Mississippi, were the agents of the Sovereign Camp, Woodmen of the World.
According to the laws of the Sovereign Camp and the evidence in this case Mr. W.A. Martin, Jr., was an agent acting in the scope of his employment on the night this injury was caused. He not only acted in the capacity of field supervisor of South Mississippi, responsible for the work of the association, as admitted by the appellant's president and the financial secretary of the Sovereign Camp, Mr. Yates, but he in addition thereto acted as an officer in the local lodge and had charge of the initiation work and directed the whole induction ceremonies. Mr. W.A. Martin put on this degree work in three other local lodges of the appellant in this county and used the same paddle and the same methods and the same Bill Robert Magee to use said paddle after knowing of his incompetence.
In the case at bar the lodge was being operated in the business of the appellant. The appellant was doing business in Mississippi through its local lodges and had appointed Mr. Martin and Fisher as its "Field Representatives," and they and the local lodge were procuring members in said lodge and this membership drive was to further the interest of the appellant in the sale of its benefit certificates which were insurance policies. Surely it could not be said that the lodge and said agents, Martin and Fisher, were doing business for the appellee. And like the Richberger case the time between the ritual and the initiation was so close and unbroken and was so immediate as to become one and the same and in the case at bar the lodge was being operated in the same way and by the same officers and agent during the ritualistic ceremony as it was during the initiation and injury in an unbroken sequence.
Richberger v. American Express Co., 18 So. 922; Gill v. L.N. Dantzler Lbr. Co., 121 So. 153.
Argued orally by A.B. Schauber, for appellant, and by J.P. Edwards, for appellee.
Appellee, while being initiated into membership of appellant's local camp at Pinola in Simpson county, in this state, was struck on the right buttock by a spanker in the hands of Magee, a member of the camp, and was seriously injured. The impact made a hole in his flesh from one and one-half to two inches deep; he bled profusely, was taken to a hospital in Magee where he remained for a while, and was treated by Dr. Diamond, who was in charge of the hospital, for some time. He sued appellant, the Sovereign Camp, for damages for the wrongful injury alleged to have been caused by the unlawful conduct of its agents in performing the initiation ritual. He recovered judgment in the sum of two thousand dollars, from which judgment the appellant prosecutes this appeal.
Appellant is a corporation with its home office at Omaha, Neb. It is licensed to do business in this state. Its principal business is commercial — the issuance to its members of benefit certificates, a form of life insurance. It has local camps all over the country, including this state, one of which is located at Pinola, where appellee received his injury.
Appellee's case is that appellant is responsible for the injury because it was inflicted by its agents in the pursuance of their duties, notwithstanding they might have gone a step beyond their authority. Appellant's defense is that the use of the spanker was no part of its prescribed ritual, and that therefore those using it were acting entirely without the scope of their authority.
Appellant had inaugurated in South Mississippi a campaign for the establishment of new camps, additional membership, and an increase in the volume of insurance resulting therefrom. Appellant's president, by authority of its constitution and by-laws, had appointed W.A. Martin and P.D. Fisher to take charge of the campaign in that section of the state. Appellee was solicited by Martin to become a member of the camp at Pinola and take a benefit certificate. He accepted the proposition. In order to get the insurance it was necessary that he become a member of the camp and go through the initiation proceedings. The time was set for that, and the place was where the camp regularly met. Appellee and from twelve to fifteen others were initiated into membership. The spanker was used on several of them, including appellee. Martin and Fisher were present and took part in the ritualistic ceremonies. The spanker had been used in their presence on other occasions. Such ceremonies appear to be a type of hazing. The spanker was an instrument of this kind: It was about ten inches square, had a handle about three feet long, on one side it was metal with a cylinder attached to it encasing a blank cartridge; on the other side it was padded. The purpose was to strike with the padded side and the impact would explode the cartridge and frighten the subject.
Appellee was a football player, and testified that before his initiation he told Martin that he had been injured in playing football, and he did not want to be struck with the spanker; that Martin replied that they would not be hard on him, or words to that effect. Appellee was put through the regular ritual prescribed by appellant, immediately after which and as a part of the ceremony Magee administered the spanker. At the time appellee was blindfolded and down on the floor on his all fours; Magee struck him with the wrong side of the spanker (the side with the cartridge in it); evidently the cartridge exploded and tore the hole in his buttock, although those who were present and who testified were not certain whether they heard the cartridge or not. Dr. Diamond testified that about ten days after the injury wadding sloughed out of the wound, and that it looked like wadding from a pistol cartridge.
The evidence for appellant showed without dispute that the use of the spanker was no part of the ritual. Appellant under its constitution and by-laws has direction and control over all of its local camps; it has "original and appellate jurisdiction in all matters pertaining to the general welfare of this association." The local camp and its members, as well as Martin and Fisher, in initiating appellee were acting within the scope of their authority. The question is whether or not appellant is responsible for an act which was a step beyond such authority. We are of opinion that under the evidence in this case that was a question for the jury, and we base that conclusion on the principles laid down in Loper v. Yazoo M.V.R. Co., 166 Miss. 79, 145 So. 743, in which American Law Institute, Restatement, Agency, secs. 229 and 454, are approved, and Hand v. Life Ins. Co., 174 Miss. 822, 165 So. 616. The ultimate question is whether it is just that the injury resulting from the act of the servants should be considered one of the normal risks of the ceremony. Putting it differently, was Magee's unauthorized act one of the normal risks of the ceremony? Should appellant have reasonably anticipated it as a probable occurrence? If only one reasonable conclusion can be reached from the evidence in answering those questions, the court then settles it one way or the other by a directed verdict. On the other hand, if from the evidence those questions might be reasonably answered either in the affirmative or the negative, then it is a question for the jury. We think the present case comes within the latter class. Under the evidence in this case appellant was chargeable with notice that some, if not all, of its local camps were going beyond the prescribed ritual in taking in members. This is an additional reason why such acts should be considered a part of the normal risk of the business.
The case nearest in point is Supreme Lodge, Order of Moose, v. Kenny, 198 Ala. 332, 73 So. 519, L.R.A. 1917C, 469, a suit for an injury received by the plaintiff while being initiated into the lodge. The court held that a principal is responsible for the acts of his agent done within the scope of his employment and while in the line of his duties, although the agent seeks to accomplish his principal's business by improper and unlawful means either in a way not authorized or known to the principal, or contrary to his express directions. The authorities relied on by appellant are not in point; they do not support its contentions.
It follows from what has been said that the court committed no error in refusing the two instructions requested by appellant, by which it was sought to inform the jury that if the evidence showed appellee was injured as the result of going beyond the ritual, there was no liability.
Affirmed.