Supreme Lodge of World, Loyal Order of Moose, v. Kenny

• Decision Date: 16 November 1916
• Docket Number: 6 Div. 172
• Citation: 73 So. 519,198 Ala. 332
• Parties: SUPREME LODGE OF WORLD, LOYAL ORDER OF MOOSE, v. KENNY.
• Court: Alabama Supreme Court

73 So. 519

198 Ala. 332

SUPREME LODGE OF WORLD, LOYAL ORDER OF MOOSE, v. KENNY.

6 Div. 172

Supreme Court of Alabama

November 16, 1916

Rehearing Denied Dec. 30, 1916

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Suit by Thomas P. Kenny, as administrator of the estate of Donald A Kenny, deceased, against the Supreme Lodge of the World Loyal Order of Moose, Birmingham Lodge No. 432, Loyal Order of Moose, and certain officers of the lodge. Judgment directed in favor of the Birmingham Lodge No. 432, Loyal Order of Moose, and the individual defendants, and judgment rendered against defendant Supreme Lodge of the World, Loyal Order of Moose, and it appeals. Affirmed.

Intestate a stranger, while a candidate for membership in defendant order, had a right to rely upon the apparent authority of its local lodge to make certain electrical stunts part of his initiation.

Suit by plaintiff (appellee) as administrator of the estate of Donald A. Kenny, deceased, for the recovery of damages for the death of intestate, who is alleged to have met his death while being initiated as a member of the Loyal Order of Moose. The intestate, a young man of about 23 years of age, applied for membership in the above-named order to the local lodge of said order known as Birmingham Lodge No. 432, Loyal Order of Moose. During the progress of the initiation of intestate, as an applicant for membership in said lodge, there were used what are referred to as "certain electrical stunts," one known as the "branding stunt," and the other as the "prize ring." In the "branding stunt" the victim was placed on a board and, while strapped there, a current of electricity was passed through him by means of wires attached to his ankles, the current being completed by means of another wire attached to a razor and applied to the back of his neck. The "prize ring" was a mat containing numerous wires interlaced throughout its entire surface, around which mat were chains supported by posts; both mat and chains being charged with electricity. A wooden box was placed on this mat, and three or four of the candidates were placed in the ring with boxing gloves, and instructed to box; the electricity was then turned on, and the candidates were supposed to make a scramble for the box, which was only large enough to hold one at a time.

The evidence as to the strength of the current varied and was in conflict. There was some evidence tending to show that intestate was in the "prize ring," but much of the evidence indicated that the "prize ring stunt," on the night intestate was killed, was abandoned before his initiation. There was evidence tending to show that he was placed on the branding board, and that there was a probability he there received a shock sufficient to cause his death. There was also evidence going to show that on the same night another applicant for membership, going through the same initiation, met his death also. There was evidence tending to show that intestate was physically sound, and had been so pronounced, and evidence for the defendant to the contrary. There was much evidence introduced on the part of defendant tending to show that the current of electricity used on that night was not sufficient to cause death, and was in fact not dangerous.

This suit was brought against the appellant, the Supreme Lodge of the World, Loyal Order of Moose, a corporation organized under the laws of Indiana, and also against the Birmingham Lodge No. 432, Loyal Order of Moose, which was organized according to the constitution and by-laws of the Supreme Lodge, but which was not incorporated. A number of individuals, officers of the lodge, who were present on the night of his initiation, were also made parties defendant.

There were originally three counts in the complaint; the second and third, however, being charged out by the court, and the cause submitted to the jury on the first count, charging simple negligence. The court gave the affirmative charge in favor of the Birmingham Lodge No. 432, Loyal Order of Moose, and also the individuals who were parties defendant. The cause was submitted to the jury, therefore, on the question of liability on the first count of the complaint, charging simple negligence as against the Supreme Lodge of the World, Loyal Order of Moose, resulting in a judgment in favor of the plaintiff in the sum of $18,000, from which judgment defendant prosecutes this appeal. The first count of the complaint charged, in substance, that the defendants were engaged in or about initiating into the order, known as the "Loyal Order of Moose," the plaintiff's intestate, or in or about the administration of certain rites or performances connected or associated with such initiation; and so negligently conducted themselves in reference thereto that as a proximate consequence of said negligence the death of intestate was caused. The evidence further tended to show that the electrical apparatus used in that lodge for initiating candidates was not the property of that lodge, but had been borrowed from another lodge in the city, of a different order, and that these "stunts" had been given candidates in initiation for some several months before this accident happened. There was also evidence to show that a representative of the Supreme Lodge designated as "Supreme Instructor" had previously visited the Birmingham Lodge, had seen these "stunts" given candidates during the initiation, and had approved of same.

Arthur H. Jones, of Chicago, Ill., and Allen & Bell and Burgin, Jenkins & Brown, all of Birmingham, for appellant.

Harsh, Harsh & Harsh, of Birmingham, for appellee.

GARDNER J.

The appellant, the Supreme Lodge of the World, Loyal Order of Moose, is a corporation organized under the laws of the state of Indiana. The purposes of its organization are thus stated by counsel for the appellant in brief:

"It was organized for and its objects were to organize subordinate lodges having ritualistic ceremonies; to unite in bonds of fraternity, benevolence and charity all acceptable male persons of good character; to educate and improve its members morally, socially and intellectually; to assist its members in time of need; to aid and assist the widows and orphans of deceased members of the order; to encourage its members in patriotism and obedience to the laws of the country, and in the tolerance of religion; and to have and hold such real estate and personal property as may be necessary for the purposes of this association. And, further, that the Supreme Lodge should have the power and authority to prescribe ritualistic ceremonies for the various subordinate lodges. The officers of the Supreme Lodge were known and designated as follows: Supreme Past Dictator, Supreme Vice Dictator, Supreme Dictator, Supreme Prelate, Supreme Secretary, Supreme Treasurer, Supreme Sergeant at Arms, Supreme Inner Guard, Supreme Outer Guard, five members of the Supreme Council, and three Supreme Trustees, with power in the Supreme Lodge to create and fill such other and further offices as it may deem to the best interest of the order. The power and authority of each and every officer of the Supreme Lodge was specifically prescribed and designated by the by-laws, rules and regulations governing the said Supreme Lodge of the World, Loyal Order of Moose. In accordance with the power, and the purposes and objects for which the said Supreme Lodge was organized, there was organized and existing a local lodge known as Birmingham Lodge No. 432, Loyal Order of Moose, which was organized according to the constitution and by-laws and articles of incorporation of the Supreme Lodge of the World, Loyal Order of Moose."

The evidence tended to show that the Supreme Lodge of the World, Loyal Order of Moose (hereinafter referred to as the Supreme Lodge), had complete control of all the subordinate lodges in all matters, including those relating to the initiation of candidates; and there was provided what was known in the order as a "Supreme Instructor," who was appointed by the officer known as the "Supreme Dictator," and whose duty it was to visit the various subordinate lodges and instruct them in lodge work which included ritualistic work of the order, and to report to the Supreme Dictator in regard to the work of the subordinate lodges. The evidence shows that the Supreme Instructor, one Rogers, had visited the local or subordinate lodge known as Birmingham Lodge No. 432 some several weeks prior to the night on which the intestate met his death, and had seen and approved the use of the identical apparatus which was used in the initiation of candidates on the night of the fatal accident.

The local lodge at Birmingham was not a separate corporation from the Supreme Lodge; but it operated under a charter from the Supreme Lodge, and in connection with its lodge rooms maintained clubrooms, a bar and cigarette stand in the clubrooms, which were run as a financial proposition, and under a special permit from the Supreme Lodge.

There was evidence also showing that one who became a member of the lodge, and paid his monthly dues, was entitled to a sick benefit of $7 per week for not exceeding 13 weeks in any one year, and in case of his death to a benefit of $100; and in addition thereto was entitled to receive the services of the lodge physician for himself and members of his family. The Supreme Lodge prescribes the rules governing that feature of the order, and, indeed, enacts all the laws of the order. A certain per capita tax was required to be paid to the Supreme Lodge by the various subordinate lodges. The following extracts from the laws of the Supreme Lodge will give some indication of the authority of the officer known as the Supreme Dictator:

"And between sessions of the Supreme

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