Supreme Lodge of the World, Loyal Order of Moose v. Gustin

• Decision Date: 29 June 1918
• Docket Number: 6 Div. 652
• Citation: 202 Ala. 246,80 So. 84
• Parties: SUPREME LODGE OF THE WORLD, LOYAL ORDER OF MOOSE, et al. v. GUSTIN.
• Court: Alabama Supreme Court

80 So. 84

202 Ala. 246

SUPREME LODGE OF THE WORLD, LOYAL ORDER OF MOOSE, et al. v. GUSTIN.

6 Div. 652

Supreme Court of Alabama

June 29, 1918

Rehearing Denied Nov. 14, 1918

Appeal from Circuit Court, Jefferson County; Charles W. Ferguson Judge.

Suit by John C. Gustin, as administrator of the estate of Christopher Gustin, deceased, against the Supreme Lodge of the World Loyal Order of Moose, and others. From a judgment for plaintiff against the Supreme Lodge it appeals. Reversed and remanded.

Somerville and Gardner, JJ., dissenting.

Burgin & Brown and Allen & Bell, all of Birmingham, and E.J Henning, of San Diego, Cal., for appellant.

Harsh, Harsh & Harsh and Beddow & Oberdorfer, all of Birmingham, for appellee.

GARDNER J.

Suit by appellee, as administrator of the estate of one Christopher Gustin, to recover damages for the death of his intestate, who died on the evening of July 24, 1913, while being initiated into Birmingham Lodge No. 432, Loyal Order of Moose, located in the city of Birmingham, Ala. Immediately prior to his death, Gustin had been placed upon an apparatus or appliance known as a "branding board," where he was subject to the following performance: A clip, similar to a pant guard used in bicycling, to which clip was secured a wire leading to a magneto, was placed around one ankle, the other wire of the magneto being attached to a piece of iron shaped like a razor; and Gustin, having been placed upon a board in a horizontal position, was shown a rubber stamp bearing the emblem of the Moose, and told that they were about to brand him, but, instead of using the stamp shown, the razor-shaped instrument was touched to his breast, producing an electrical shock. Gustin was immediately taken from the board, in a fainting condition, walked, with the assistance of several members of the lodge, to one end of the room, where he was placed in a reclining position, and within 15 minutes was pronounced dead. The magneto referred to was one commonly used by telephone companies, and the electrical current was generated by turning a crank by hand.

This suit was brought against the Supreme Lodge of the World, Loyal Order of Moose; Birmingham Lodge No. 432, Loyal Order of Moose; and several individuals, officers of the lodge. Upon conclusion of the evidence in the cause, the trial judge gave the affirmative charge in favor of the defendant Birmingham Lodge No. 432, for the reason, as stated by him, that it appeared that the same was an unincorporated association, and therefore judgment could not be rendered against it. The affirmative charge was also given in favor of the individual defendants, for the reason, as he stated, the evidence was insufficient to identify these defendants as having taken part in, or been responsible for, the initiation with such fatal results. The cause was submitted to the jury, as to the liability of appellant, Supreme Lodge of the World, Loyal Order of Moose, under count 1 of the complaint and pleas of general issue, contributory negligence, and assumption of risk, resulting in a judgment for the plaintiff in the sum of $15,000, from which the Supreme Lodge of the World, Loyal Order of Moose, has prosecuted this appeal.

The incident upon which the present suit is based is the same set of circumstances upon which the case of Supreme Lodge of the World, Loyal Order of Moose, v. Kenny, heretofore decided by this court, and reported in 73 So. 519, L.R.A.1917C, 469, was founded. The two men, Gustin and Kenny, having been initiated and met their death within about 15 minutes of each other, and the two actions arose out of the same accident, wherein the same apparatus was used, operated by the same individuals. A more detailed statement of the case we deem unnecessary at present, as a reference to the Kenny Case, supra, will suffice as a general outline of the facts here also presented.

In the Kenny Case we reached the conclusion that a subordinate lodge, in taking in and initiating candidates into the membership of the ledge, was acting as the agent of the Supreme Lodge; and that the evidence was sufficient for submission to the jury for determination that in such initiation the subordinate lodge was acting within the line and scope of its authority; and the principal, the Supreme Lodge, could be held liable though the subordinate lodge accomplished the same in an improper way or one not authorized by the principal.

Upon this appeal counsel for appellant have argued ably and strenuously that the record in the instant case differs from the Kenny Case, and that, while the conclusion in the Kenny Case might be justified by the record as it then appeared, it is not conclusive authority upon the present appeal. The points of differentiation in the record, and as argued in brief of counsel, have been very carefully noted; but they are not sufficient to change our conclusion that the evidence was sufficient for submission to the jury both as to the fact of agency, and that the subordinate lodge was acting within the line and scope of its authority, as well also the question of negligence. It is unnecessary to enter into a discussion of this question, as we consider that it was settled upon the appeal in the Kenny Case, and we are content with the ruling there made.

Demurrers were interposed to count 1 for misjoinder of the causes of action; in that, the cause as alleged against the Loyal Order of Moose is an action of trespass on the case, and that against the individuals is trespass, and further that relationship of the parties is not sufficiently shown, nor any duty owing to plaintiff's intestate. The complaint clearly seeks to visit a liability upon the defendants, as for a joint tort, and is in case against all the defendants, and was therefore not subject to the assignment of demurrer as for misjoinder of causes of action. City Del. Co. v. Henry, 139 Ala. 161, 34 So. 389; So. Rwy. Co. v. Arnold, 162 Ala. 570, 50 So. 293; Cent. of Ga. Rwy. Co. v. Carlock, 196 Ala. 659, 72 So. 261; Nat. Baking & Lunch Co. v. Wilson, 73 So. 436. Leach v. Bush,

57 Ala. 145), and we are also of the opinion relationship of the parties sufficiently appears.

It is further urged that the complaint does not state a cause of action for the reason that the suit is founded upon what is commonly known as the Homicide Statute, (section 2486 of the Code of 1907), and fails to allege where the alleged wrongful acts were committed. While we are inclined to the view this is defensive matter, yet, as it appears without dispute that the intestate met his death in the city of Birmingham, Ala., the question presented is highly technical, and could in no manner involve any of the substantial rights of the parties, and, under the rules of this court, could in no manner avail the appellant here.

It is also insisted that reversible error was committed by the trial court in permitting counsel for plaintiff to read to the court, in the presence of the jury, the decision of this court in the Kenny Case, supra, including the statement of the case. It is, of course, apparent that the questions of law determined in that case were very material in this. Upon this question the record discloses that the defendant objected to the reading of the opinion to the court in the presence of the jury, or the reading of the facts in any case, on the ground that it was improper and unnecessary. The court then said he would let the jury retire, if the facts of any case were to be read. Counsel stated to the court that he proposed to argue the case to the court, and in that argument to read the facts involved in the Kenny Case; counsel for plaintiff then called the court's attention to the fact that no request had been made by defendant for the jury to retire. The record further shows that neither before nor after defendant's attention, and the attention of the court, was called to the fact, was any request made for the jury to retire. Thereupon the court overruled the objection.

In Western Union Tel. Co. v. Benson, 159 Ala. 254, 48 So. 712, the court said:

"While it may not be permissible for counsel to read the facts from the report of another case to the jury as a part of his argument to them (Williams' Case, 83 Ala. 68, 3 So. 743), it is not a breach of propriety for counsel, in presenting the law of the case to the court, to read the report of the facts of the case in connection with the opinion. This is frequently necessary, to give the court a clear understanding of the law. It may be that the court would have the right to exclude the jury from hearing while the law is being thus discussed, and this, we find, the court finally did in the instant case."

See Stewart v. State, 78 Ala. 436; Pratt v. Southern Ry. Co., 165 Ala. 501, 51 So. 604.

We are of the opinion that, in this particular case, it would no doubt have been a much safer course for the court to have excused the jury, if it was thought any injustice might result; but the record shows that this the court offered to do, and the language of the record is properly construed as a declaration of willingness on the part of the court to have the jury retire, should counsel for defendant indicate a desire to that effect. All this being stated prior to the reading of the case to the court, and no request being made, we are of the opinion that defendant can take nothing on account of such action, and no reversible error could be predicated upon the action of the court in permitting, under these circumstances, a reading of the case.

After the verdict had been rendered in this cause against the defendant Supreme Lodge of the World, Loyal Order of Moose the said defendant presented to the court a petition seeking a removal of the cause to the federal court, showing the institution of the suit...