Barabasz v. Kabat, 86 Md. 23

Barabasz v. Kabat

86 Md. 23

| Md. | 1897

Boyd, J.,

delivered the opinion of the Court.

The appellee sued the appellant and James Gibbons, Roman Catholic Archbishop of Baltimore for the time being, a corporation sole, for an assault and battery on his wife and causing her to be imprisoned, whereby he alleges he lost her services and the comfort of her society and incurred expense for medical attention and medicines. There are two counts in the declaration, the first being for an assault and battery and the second for false imprisonment. It was not pretended at the trial that either of the defendants personally committed the assault or procured the arrest of Mrs. Kabat, but the plaintiff sought to hold them responsible for the acts of one Joseph Molis, who was alleged to be the agent of the defendants. At the conclusion of the plaintiff’s testimony, the Court below instructed the jury that there was no legally sufficient evidence to establish any liability on the part of the defendant corporation and a verdict was at once entered accordingly. The case then proceeded against the appellant alone, resulting in a verdict against him.

He was at the time of the alleged assault and imprisonment the pastor of the Holy Rosary Church in the city of Baltimore, having been appointed by Cardinal Gibbons, Archbishop of that arch-diocese. The evidence showed that according to the discipline and government of the Roman Catholic Church the pastor “ is the administrator and agent of the Archbishop, who is considered as the owner of the church property.” He has charge of the “temporalities” of the church—that is to say, the revenues of the church derived from pew rents, Sunday and other collections, graveyard charges, school fees and donations. Some of the parishioners of the appellant took a very decided stand against him, and he seems to have had some very troublesome and unruly people in his congregation. Without undertaking to give in detail all that occurred, it was shown that the appellant had been assaulted and otherwise maltreated by some of them in the church, as well as elsewhere. Their *31conduct indicated an utter disregard for the house of God as well as a total lack of respect for their pastor. At times they not only interfered with public worship, but their language and treatment of the appellant could well have led him to believe that his personal safety was not assured when some of the unruly ones were present. It became necessary for him to seek the protection of the police, and he finally determined that it would be best to require those desiring to enter the church to have tickets of admission. It was duly announced that this would be required and it was stated where they could be procured. On November $, 1893, the day on which the alleged assault and imprisonment took place, this practice was begun. Tickets were furnished to those applying at the priest’s house, which was adjoining the church, as well as by members of the committee who had them, and doorkeepers were stationed at the doors to require those seeking admission to exhibit them. The appellant in his testimony gave several reasons for adopting this course, but as we understood the attorneys for the appellee to practically concede at the argument that under all the circumstances it was a reasonable regulation, it will be unnecessary for us to discuss it at length. The appellant was certainly justified in resorting to some plan that would have a tendency to exclude the disorderly members of his congregation who had been giving trouble themselves and had been inciting others to acts that were not only liable to bring reproach upon the church, but to cause a breach of the peace. The protection of the city police had been required at the services of the church since July 30th, 1893. Those desiring to enter the church for legitimate purposes could readily obtain tickets, and under existing circumstances we think it could well be conceded that the means adopted by the appellant to preserve order, protect himself from insult and possible injury and the church from desecration were reasonable and proper. On November 5, 1893, an immense crowd gathered in the street in front of the church—some of the witnesses numbered them *32by the hundred, others by the thousand. Many were doubtless there from curiosity, some desired to enter the church from proper motives, but that there were others there who were bent on mischief cannot be doubted. The police force on duty was considerably increased, and some of the policemen were assaulted and beaten in a manner that indicated that murder was more prominent than religion in the hearts of some of those present.

When Mrs. Kabat presented herself at the door of the church Joseph Molis was there as a doorkeeper, having been appointed by the appellant. He demanded a ticket of her, but she had none. The evidence is somewhat conflicting as to what occurred, but that on the part of the plaintiff shows that she tried to go into the church and Molis pushed her back. Lawrence Loubya, one of the plaintiff’s witnesses, said “she was trying to go in when Molis pushed her off.” Frank Zielski said, “ when she tried to enter by force he (Molis) pushed pretty strong toward the pavement.” She was talking in a loud tone and w'as evidently very much excited. Several policemen took hold of her, and according to her evidence dragged her down the steps and took her to the police station where she was held for some hours. At the conclusion of the plaintiff’s testimony prayers were offered on behalf of the appellant, which if granted would have taken the case from the juiy. They were rejected, but as we do not find any exception to that ruling, we will proceed at once to the consideration of the other rulings of the Court.

The first exception was to the refusal of the Court to permit a question to be asked one of the plaintiff’s witnesses, but it has not been pressed in this Court. After the conclusion of all the testimony, the plaintiff offered five prayers and the defendant eight, all of which were rejected excepting the defendant’s eighth, and the Court in lieu of the rejected prayers gave instructions of its own. The eighth, which was granted, was in reference to the measure of damages in case the plaintiff recovered.

*33The instructions of the Court were divided into three parts, the first being applicable to the first count, the second to the second count, and the third having reference to the burden of proof. By the first the jury was instructed that if they found “ that one Joseph Molis acted as doorkeeper of the church by appointment of the defendant as its pastor, with instructions to admit only persons provided with tickets of admission, and that while so acting the plaintiff’s wife presented herself for admission without such ticket; and if you further find that said Molis laid his hands upon the plaintiff’s wife, using more force than was reasonably necessary under the circumstances to keep her out, or to prevent obstruction of the passage to the church door, then the plaintiff is entitled to recover.” It being shown that Molis was appointed doorkeeper by the defendant with instructions to only admit those who had tickets, it would seem clear that he was acting within the scope of his employment when he refused to admit Mrs. Kabat unless she produced a ticket. Molis testified “ that he was placed at the door by Father Barabasz, who told him if they had tickets to let them in, and if they had no tickets to keep them out ” If we assume, as we may well do, that the defendant did not intend Molis to use more force than was necessary, and even went so far as to forbid him from using: any force, he cannot, for those reasons alone, be relieved from liability for the acts of Molis. As his employment was to keep those out who had no tickets, his master or principal was liable if he used more force than was reason ably necessary for that purpose, to the injury of a third person, because the act was done in the course of the master’s service and for his benefit, within the scope of his employment. The "principle is well stated in Evans v. Davidson, 53 Md. 245. Judge Alvey, in delivering the opinion of the Court, said : “ In one sense where there is no-express command by the master, all wrongful acts done by the servant may be said to be beyond the scope of the authority given, but the liability of the master is not deter*34mined upon any such restricted interpretation of the authority and duty of the servant. If the servant be acting at the time in the course of his master’s service and for his master’s benefit, within the scope of his employment, then his act, though wrongful or negligent, is to be treated as .that of the master, although no express command or privity of the master be shown.” And this Court in Tome's case, in 39 Md. 36, and in Western Maryland R. R. Co. v. Franklin Bank, 60 Md. 36, approved the statement of Story on Agency that the principal is “ liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances or misfeasances and omissions of duty of his agent, in the course •of his employment, although the principal did not authorize -or justify, or participate in, or indeed know of such misconduct, or even if he forbade the acts, or disapproved of them. In all such cases the rule applies, respondeat superior, and it is founded upon public policy and convenience.” But although those principles are well established in this State, as well as elsewhere, yet under the facts of this case the above instruction was erroneous. The testimony shows very clearly that most of the injury to Mrs. Kabat complained of may have been, and most probably was sustained .after the police took charge of her and not by Molis laying his hand on her, even if done in the violent manner that -some of the plaintiff’s witnesses speak of. The plaintiff was only entitled to recover for the loss of the services of his wife and of her society and for the expense he had in•curred, and if the acts of Molis referred to in that instruction did not cause such injuries to Mrs. Kabat, as to produce some of those results, the plaintiff was not entitled to recover at all. It was therefore error to allow a recovery on the finding of the fact that Molis laid his hands on the plaintiff’s wife, using more force than was reasonably necessary, which this instruction practically did, as there was no •controversy about the other questions contained in it. Nor did the granting of the eighth prayer of the defendant cor*35rect this error, as it only applied to the measure of damages, if the jury found for the plaintiff, whilst the Court’s instruction told them under what circumstances they could find for the plaintiff The jury may have believed that Molis did use more force than was necessary, but may also have believed that the injuries sustained by Mrs. Kabat were caused by the treatment of the police after they had taken charge of her, and not by what Molis did, but there was nothing in the instruction granted that informed them that that would make any difference as to the light of the plaintiff to recover at all. Nor does the third instruction of the Court, in reference to the burden of proof, cure the defect in the first. After saying that if the jury found the facts set out in the first instruction the plaintiff was entitled to recover, it did not sufficiently protect the defendant to grant the third instruction, which, to say the least, was not very clearly stated.

The second instruction we also think was erroneous. Although we have said above the defendant might be liable for assault if Molis used more force than was reasonably necessary to keep Mrs. Kabat out or to prevent obstruction of the passage to the church door, for such damages as the plaintiff can recover, yet that is because the act of Molis was in the line of his employment. But we find nothing in the record that would justify us in saying or the jury in finding that the defendant ever in any way, expressly or impliedly, authorized Molis to have her arrested and held in custody for presenting herself at the church door without a ticket. Such an act, if done by Molis, was clearly not within the scope of his employment and no such authority can be inferred. Yet by this instruction the jury was told that if they found that the plaintiff’s wife, while acting in a quiet and orderly manner, without in any wise disturbing the peace of the congregation, or unreasonably obstructing the entrance to the church, was arrested and held in custody by the police, at the instance of said Joseph Molis, while acting as doorkeeper as above stated, for no other *36reason than presenting herself at the church door without a ticket, then the plaintiff is entitled to recover. If Molis did have her arrested for that reason alone, it was wholly unjustifiable, but we know of no authority that would hold his principal responsible for that act under such circumstances as existed in this case. The reasoning of the decisions of this Court in Carter v. Howe Machine Company, 51 Md. 290; Tolchester Beach Company v. Steinmeier, 72 Md. 313; Baker's case, 77 Md. 442; Brewer's case, 78 Md. 394; Kirk v. Garrett, 84 Md. 383, and cases cited by them, would seem to preclude a recovery from the defendant for such an act of Molis’, and we will not cite other authorities on the subject. The testimony shows that the police officers were sent there by the city authorities to preserve order, and they were eye-witnesses to what occurred. They knew as well as Molis did what Mrs. Kabat was doing, and unless she was, in their opinion, violating the law, they had no right to arrest her. Molis could give them no such right and certainly could not require them to arrest her. It is not pretended that the defendant attempted to confer any express authority on Molis to have any one arrested, because he presented himself at the church door without a ticket, and such an authority cannot be implied'. There is nothing to suggest that he supposed an arrest would or could be made for such a cause, or that the police officers of the city would be guilty of such a flagrant violation of their duty as to do so, at the instance of Molis, although they knew as well as he did what had been done.

As we have intimated, the third instruction is not as clear as it might have been, but as we have already said the first and second,-to which it referred, were erroneous, we need not discuss it further.

Being of the opinion that, the defendant is not liable for the arrest of Mrs. Kabat, even if it was made at the instance of Molis, as it was not within the scope of his employment, some of the prayers offered by the defendant may not be applicable at a new trial of the case, but we will very briefly *37refer to those that were rejected. The first embraces some matters that are now immaterial, and it did not fairly present the question as to whether Molis assaulted Mrs. Kabat by forcibly pushing her away. The second leaves out of consideration the theory of the plaintiff that there was an assault by Molis by the use of more force than was necessary. The third ought to have been granted. The fourth is not now material. The expression “ if the testimony in this case should be such as. to leave the minds of the jury in a state of equipoise” might be improved on, but this Court said in Ohlendorf v. Kanne, 66 Md. 495, that a prayer which contained that same expression ought to have been granted. As the defendant was not responsible if Molis did ask a policeman to arrest Mrs. Kabat, the fifth prayer, if sustained by the proof, presents a proper defence to the suit. For if the injuries complained of were sustained by Mrs. Kabat while she was in the hands of the police, then, as we have already said, the plaintiff could not recover. The sixth referred to both counts in the beginning and then concluded with reference to matters that only affected the first. By changing it so as to make it applicable to the charge of assault, it can be made a good prayer. The seventh was properly rejected. It would be misleading and ignores the important question as to whether Molis used more force than necessary.

(Decided June 22nd, 1897).

For the reasons we have given the judgment must be reversed. As the case now stands before us, there can be no recovery against the defendant on the second count, but as on a new trial other evidence may be'introduced, and as the plaintiff would be entitled to recover under the first count, if he can establish the fact that Molis did use more force than was necessary, and thereby caused the injuries for which the plaintiff can recover damages, a new trial must be granted.

Judgment reversed and new trial awarded with costs to the appellant.