Barabasz v. Kabat
| Decision Date | 22 June 1897 |
| Citation | 37 A. 720,86 Md. 23 |
| Parties | BARABASZ v. KABAT. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore city court.
Action by Vincent Kabat against Mieczyslaw Barabasz and another. From judgment for plaintiff, defendant Barabasz appeals. Reversed.
Argued before McSHERRY, C.J., and BRYAN, BRISCOE, ROBERTS, and BOYD JJ.
F. C Cook, Joseph S. Heuisler, and Charles W. Heuisler, for appellant.
W. C Schloegel, Howard M. Emmons, and Thomas I. Elliott, for appellee.
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 Moles, 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 archdiocese. 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 conduct 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 5, 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 understand 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 30, 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 by 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 Moles 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 Moles pushed her back. Lawrence Loubya, one of the plaintiff's witnesses, said, "She was trying to go in when Moles pushed her off." Frank Zielski said, "When she tried to enter by force, he [Moles] pushed pretty strong toward the pavement." She was talking in a loud tone, and was 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 jury. 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 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 Moles 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 Moles...
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