48 S.E. 290 (S.C. 1904), Mitchell v. Leech

• Citation: 69 S.C. 413,48 S.E. 290
• Date: 14 July 1904
• Docket Number: .
• Parties: MITCHELL v. LEECH et al.
• Court: South Carolina Supreme Court

Page 290

48 S.E. 290 (S.C. 1904)

69 S.C. 413

MITCHELL

v.

LEECH et al.

Supreme Court of South Carolina

July 14, 1904

Appeal from Common Pleas Circuit Court of York County; Aldrich, Judge.

Action by Samuel W. Mitchell against Joseph W. Leech, Dennis Whisonant, Samuel Lush, and the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendants appeal. Affirmed.

D. E. Finley, J. S. Brice, and H. C. Browne, for appellants. Geo. W. S. Hart and Jas. F. Hart, for respondent.

GARY, A. J.

This is an action for damages sustained by the plaintiff on the night of his initiation into a subordinate camp of the Woodmen of the World, in consequence of the use of a mechanical goat. The jury rendered a verdict in favor of the plaintiff for $1,000. The assignments of error are as follows:

"(1) Because it is respectfully submitted that his honor the presiding judge erred, as a matter of law, in charging the jury as follows: 'Now, it is argued here by the plaintiff that the subordinate camp is a constituent part of the sovereign camp. Now, that is matter of fact for you to find from the testimony--whether it is or not. That involves a different principle than the principle involved in mere agency. If the subordinate camp is a constituent part of the sovereign camp--if you find that the subordinate camp is a part of it--then the act of the subordinate camp is the act of the sovereign camp; that is, the act of one and the same party.' Thus leaving it to the jury to interpret the written instruments offered in evidence, in which the relation existing between the sovereign camp and the subordinate camps were fully set forth, to wit, the articles of incorporation of the sovereign camp, the constitution and by-laws of the order, and the insurance policy issued by the [69 S.C. 415] Sovereign Camp to the members of the subordinate camps.

(2) Because his honor erred, as a matter of law, in not construing the articles of incorporation, the constitution and by-laws of the order, and the insurance policy issued by the sovereign camp to the members of the subordinate camp, as to whether or not the subordinate camp was a constituent part of the sovereign camp, instead of leaving it to the jury to determine, as a question of fact, what that relation was.

(3) Because his honor erred in leaving it to the jury to construe the articles of incorporation, the constitution and by-laws of the order, the ritual of the order, and the insurance policy issued by the order, all of which were written instruments, and to determine, as a question of fact, whether or not the subordinate camp was a constituent part of the sovereign camp.

(4) Because his honor erred, as a matter of law, in refusing to charge the jury: 'If you find from the evidence that the defendant Sovereign Camp Woodmen of the World is a fraternal beneficiary association, having power only to collect assessments and dues from its members, to pay death losses, for the erection of monuments, and the payment of the legitimate expenses of the management of its business, then you are instructed that the plaintiff is conclusively presumed to have known at the time of his initiation as a member of the local camp at Hickory Grove that the defendant Sovereign Camp of the Woodmen of the World was not liable for the torts of the local camp or its members, and your verdict should be for the defendant sovereign camp.'

(5) Because his honor erred, as a matter of law, in charging the jury as follows: 'Our law does not go so far as to say in a case like that that the plaintiff should be conclusively presumed to have known that the parent camp, I will call it--the sovereign camp--would not be liable for its torts. That is a matter of fact for you to find.' Thus leaving it to the jury to construe the articles of incorporation, the constitution and by-laws of the sovereign camp, the ritual furnished by the sovereign camp, and the insurance policy issued by the sovereign camp, all of which were written instruments, and determine as a question of fact--whether or not the sovereign camp was liable for the torts of the members of the subordinate camp.

(6) Because his honor erred in not instructing

the jury that the written instrument in evidence above referred to showed that the sovereign camp was not liable for the torts of members of the subordinate camps.

(7) Because his honor erred in refusing defendant's motion for a new trial upon the

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grounds that the verdict was contrary to the weight of the testimony, and upon the further grounds that his honor had erred in leaving to the jury to decide, as a matter of fact, whether or not the subordinate camp was a constituent part of the sovereign camp, and whether or not the sovereign camp was liable for the torts of the members of the subordinate camp, and in not construing the articles of incorporation, constitution and by-laws, and insurance policy.

(8) Because the verdict against the defendant sovereign camp was contrary to law and evidence, in that, it being admitted that there was nothing in the initiatory exercises prescribed and required by the sovereign camp that required the use of a mechanical goat, and that the plaintiff, if injured at all, was injured while riding a mechanical goat, the sovereign camp was in no way liable for such injury.

(9) Because the verdict was contrary to the law, in that it holds the sovereign camp liable for the torts of the members of the subordinate camp.

(10) Because the verdict was contrary to the law and the evidence, in that the evidence showed that the defendant was not injured as alleged while being initiated into the order of the Woodmen of the World.

(11) Because his honor erred in refusing to allow defendant's counsel to ask Dr. J. D. McDowell, an expert witness for plaintiff, 'if Lydston was a standard medical work on genito-urinary and venereal and sexual diseases,' and his honor further erred in not allowing defendant's counsel to read extracts from said work, and ask said witness if said statements were true.

(12) Because his honor further erred in not allowing defendant's counsel to ask Dr. W. M. Love, an expert witness [69 S.C. 417] for defendant, if certain medical works were standard and good authority, and his honor further erred in refusing to allow defendant's counsel to ask said witness if certain statements in medical works were true, and also in refusing to allow defendant's counsel to ask Dr. M. J. Walker, a witness for plaintiff, the same question."

We will first construe the instruments in writing introduced in evidence, for the purpose of ascertaining the relation the Sovereign Camp of the Woodmen of the World, the subordinate camps, and the...