Lamb v. Licey

• Citation: 16 Idaho 664,102 P. 378
• Parties: EVA E. LAMB, Admx., Respondent, v. B. LICEY et al., Appellants
• Decision Date: 05 June 1909
• Court: United States State Supreme Court of Idaho

102 P. 378

16 Idaho 664

EVA E. LAMB, Admx., Respondent, v. B. LICEY et al., Appellants

Supreme Court of Idaho

June 5, 1909

FLAG-POLE-ERECTION AND MAINTENANCE OF-BREAKING OF-EXTRAORDINARY WIND-INJURY TO PERSON.

1. No liability attaches for damages sustained by reason of an act of God or forces of nature.

2. Held, under the facts of this case that the defendants did not negligently erect or carelessly, negligently or wrongfully maintain the flag-pole which was the cause of the accident complained of in this action.

3. Held, under the facts of this case that the defendants are not liable.

4. Under the provisions of sec. 4824, Rev. Codes, 1909, when there is substantial evidence to support the verdict, the same will not be set aside on appeal.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District for Boise County. Hon. Fremont Wood, Judge.

Action by an administratrix to recover for alleged damages sustained by reason of the falling of a flag-pole and injuring the plaintiff's intestate so that he died. Judgment for the plaintiff. Reversed.

Judgment set aside and cause remanded, with instructions. Costs of this appeal awarded to appellants.

Hawley Puckett & Hawley, for Appellants.

"A lodge is not liable in an action for an act of wrong outside of the declared and real purposes of the association, for such wrongful act stands by itself to be answered for only by those who joined in its perpetration." (Bacon on Benefit Societies and Life Insurance, par. 441, p. 890.)

The strongest requirement on the erection of the pole was that it should withstand the ordinary force and power of ordinary and usual windstorms in the vicinity where erected. (City of Alleghany v. Zimmerman, 95 Pa. 287, 40 Am. Rep. 649; Thompson on Negligence, par. 1241; 29 Cyc. 441; Texas etc. R R. Co. v. Anderson (Tex. Civ. App.), 61 S.W. 424.)

"Where the negligence of the defendant creates the dangerous condition, the plaintiff cannot recover, if notwithstanding the negligence he could have avoided the injury of which it was the occasion by the exercise of ordinary or reasonable care." (1 Thompson on Negligence, p. 489; Dexter v McCready, 54 Conn. 171, 5 A. 855; 29 Cyc. 513.)

Karl Paine, and H. L. Fisher, for Respondent.

"A member is responsible for tortious acts committed by the association when it can fairly be assumed that they were within the scope of the purposes for which the organization was formed." (4 Cyc. 312. See note 65.)

The case was tried upon the theory that the defendants were not copartners. Assuming that it was not, the camp had no well-defined legal status, but consisted of a collection of individuals, part of whom were made parties defendant. It was not a separate entity and could not be sued as such. The members thereof had the right to manage, control and dispose of its property as joint owners thereof. They permitted the pole to be placed on their property and aided in erecting it there. They had the undoubted right to remove it at pleasure, and such right was exclusive in them. Granted that other persons used it, the members of the order had the exclusive control of it. Under these circumstances, they will not be heard to say that they were not maintaining the pole. (Weller v. McCormick, 52 N.J.L. 470, 19 A. 1101, 8 L. R. A. 798; Waller v. Ross, 100 Minn. 7, 117 Am. St. 661, 110 N.W. 252, 12 L. R. A., N. S., 721.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was commenced by the respondent, as plaintiff, to recover $ 20,000 damages against the appellants for the alleged wrongful death of the respondent's husband, by reason of the careless, negligent and wrongful maintenance of a flag-pole. The principal allegations of the complaint were that the defendants and others were members of the local camp of Modern Woodmen of America at the village of Sweet in Boise county, which camp, it is alleged, is a voluntary unincorporated association securing life insurance to its members and promoting their social and fraternal interests, and that as such members they were in possession of a building known as the Woodmen's Hall; that they, as such members, carelessly, negligently and wrongfully maintained a flag-pole in front of and in connection with said hall; that the said flag-pole rotted at a point near where it emerged from the ground, and the rotted and decayed condition thereof by the exercise of ordinary care on defendants' part could have been ascertained; that the plaintiff's intestate lived so close to the pole that the defendants were bound to know that the pole in falling might injure or kill said intestate; that the pole did break off at the point where rotted and decayed, and in falling did kill said intestate. Then follows the usual allegation of damages.

The defendants demurred to the complaint on several grounds: First, on the ground that the complaint did not state facts sufficient to constitute a cause of action; second, that there is a defect of parties defendants and that the complaint is ambiguous, specifying wherein the ambiguity exists. The court overruled the demurrer. In their answer several of the defendants denied practically in toto the allegations of the complaint, and as a further answer, that they had joined said Woodmen Lodge since the death of said intestate. The answer of the other defendants was a practical denial of all of the material allegations of the complaint, while both answers pleaded that the flag-pole was erected by the people generally in the vicinity of Sweet, and was used as a liberty pole by the whole people of the vicinity; that it was not erected by or at the cost of the said Woodmen Camp; that the pole was carefully selected and no decay appeared thereon; that as an inevitable act of God the pole fell, blown down by an extremely high wind; that the deceased had equal opportunities with all, and better than most of the defendants, to inspect and notice the condition of the pole, and voluntarily erected his tent in its proximity. Allegations of contributory negligence on the part of the intestate were made, as well as allegations as to the lack of negligence on the defendants' part.

The case was tried by the court with a jury and the jury returned a verdict of $ 3,600 in favor of plaintiff; $ 600 in favor of the widow, $ 800 in favor of Myrtle R., $ 1,200 in favor of Walter W., and $ 1,000 in favor of Pearl Lamb, children of said deceased.

During the trial a motion was made to dismiss as to the defendants who joined said society subsequent to the death of said intestate, which motion was sustained. A motion for a new trial was overruled and the appeal is from the judgment and the order denying a new trial.

Numerous errors are assigned, but in our view of the matter it will not be necessary to pass upon each assignment separately.

The complaint is framed upon the theory that the members of said Woodmen's Lodge are liable because that lodge carelessly and negligently maintained said flag-pole. After...