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
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.
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
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
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.