Sovereign Camp, W. O. W. v. Banks

• Decision Date: 09 November 1936
• Docket Number: 32384
• Citation: 177 Miss. 279,170 So. 634
• Court: Mississippi Supreme Court
• Parties: SOVEREIGN CAMP, W. O. W., v. BANKS

170 So. 634

177 Miss. 279

SOVEREIGN CAMP, W. O. W., v. BANKS

No. 32384

Supreme Court of Mississippi

November 9, 1936

Division B

Suggestion Of Error Overruled November 23, 1936.

APPEAL from the circuit court of Simpson county, HON. EDGAR M. LANE Judge.

Action by Bennie Lee Banks against the Sovereign Camp, Woodmen of the World. Judgment for the plaintiff, and defendant appeals. Affirmed.

Affirmed.

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 F. 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 F. 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 bylaws 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 S.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.

OPINION

Anderson, J.

Appellee while...