Bianchi v. S. Park Presbyterian Church

Decision Date22 September 1939
Docket NumberNo. 31.,31.
Citation123 N.J.L. 325,8 A.2d 567
CourtNew Jersey Supreme Court

PERSKIE, J., dissenting.

Appeal from Circuit Court, Essex County.

Action by Gertrude Bianchi against the South Park Presbyterian Church, Trustees of the South Park Presbyterian Church, a religious corporation, and Ellis Jenkins to recover damages for injury suffered from fall on church property. From a judgment for the defendants, the plaintiff appeals.


Meyer M. Semel, of Newark, for appellant.

Reginald V. Spell, of Newark (Wilbur A. Stevens, of Newark, of counsel), for respondents.

HEHER, Justice.

The fundamental question at issue is whether a religious society is exempt from liability for damages to a nonmember beneficiary of its incidental philanthrophy who suffers injury by reason of its negligence in the management of a house used as an appurtenance to its church.

The defendant society was organized on January 31, 1853, under the provisions of an enactment entitled "An Act to incorporate trustees of religious societies," Revision of April 17, 1846, Rev.St. 1846-47, p. 152, applicable to "every religious society or congregation of christians, entitled to protection in the free exercise of their religion, by the constitution and laws of this state." Trustees were elected, and the name taken was "The Trustees of the South Park Presbyterian Church." Under the statute, the trustees so chosen, "and their successors in office", were "constituted a body politic and corporate in law," by the name thus assumed. They were endowed, as such corporate body, with capacity to acquire and hold lands and personalty "in trust for the use of the said society or congregation, to an amount in value (after the manner of the English statute of mortmain) not exceeding two thousand dollars a year", and not otherwise.

The society has since maintained a church of the Presbyterian communion on lands situate on Broad Street, in the City of Newark. In 1922, it erected another building thereon, separate and apart from the church edifice, but devoted to corporate purposes. This structure housed administration offices, choir practice, reading and meeting rooms, a gymnasium and locker rooms, a kitchen and equipment, sexton's living quarters, a furnace room, and the like. The second floor consisted of a balcony overlooking the gymnasium and women's locker and retiring rooms to the rear. Access to the second floor was had by a stairway which, half way up, made a right angle turn from a landing to the second floor. The uppermost step was also at an angle.

This church house was used as a social center as well as for the administration of church affairs. Its social, recreational and like uses were not confined to members of the society. A girl-scout troop of which plaintiff was a member (she was twenty-four years of age when the mishap presently to be related befell her, and her membership had then covered a period of six years) held weekly meetings there. The troop was in no sense identified with the church body. And plaintiff was not a member of the society, nor had she ever worshipped in its church. Such use of defendant's property antedated the erection of the church house. Originally, the troop gathered in the choir room of the church edifice; later on, in a larger room thereof; and, latterly, in the newly erected church house. There was no charge by the society for the privilege thus granted. The troop made a "voluntary donation" to it "at the beginning of each year". The troop captain testified thus: "We started with $5. because we felt that was all we could afford, and as we became a little larger we increased and now they are paid $25." The troop members "pay a membership fee of fifty cents when they join if they can afford it, and their dues are five cents a week, if they also can afford that." The society furnished light, heat and janitor service; and it seems to be conceded that the "donation" so made was not sufficient to defray the outlay for light and heat, not to mention the janitor service.

On the evening of November 6, 1936, at about nine o'clock, after adjournment of a meeting of the scout troop, plaintiff ascended the stairway to the second floor and entered the locker room, where she remained (with eight or nine fellow scouts) for approximately fifteen minutes. When she passed into the locker room, "lights were on in the lower hall and in the gymnasium." She "couldn't tell" whether the second floor lights "were on", but "it was light enough there." When she left the lighted locker room (accompanied by a fellow-member, leaving several such behind), she found the stairway in darkness. She continued:

"We pushed our way along until we found the stairway. * * * We came to the stairway and tried to find the steps. We saw the first step and that was all we could see, and I fell, but I don't know how I did, it was just too dark.

"Q. You say you saw the first step? A. Yes, because of the white line, you could see it in the dark.

"Q. What happened after that? A. I missed the second one.

"Q. What happened? A. I just fell and let out a scream."

The contentions are made that the evidence so adduced makes out a prima facie case of negligence by the sexton in the extinguishment of the lower floor and stairway lights while plaintiff remained in the second floor locker room, and that such fault is imputable to his principal.

The gravamen of the complaint is negligence; and the specifications are (a) the careless extinguishment of the lights; (b) the society's "negligence" in maintaining "two or more steps at the top of the * * * staircase * * * of improper, faulty and dangerous construction, unsuited and unsafe for use as such"; and (c) the society's failure to exercise reasonable care "in the engaging, hiring and selection of a janitor," and "in keeping and retaining such incompetent employee in its service with full knowledge of his incompetency."

The learned trial judge directed a verdict for defendants on the grounds that the scout troop was a "charitable institution or, at least, a charitable foundation," and that plaintiff "was the recipient of a particular benefit offered by the church," and the church was therefore not chargeable with the pleaded delinquency, and that there was no "allegation" in the complaint "of any act of negligence on the part" of the sexton, "individually."

There was no evidence tending to establish the allegations of negligence comprised in subdivisions (b) and (c), supra. But there was evidence of negligent conduct by the sexton; and thus there is presented for consideration the fundamental question of whether the defendant society is liable for negligence under the maxim respondeat superior.

First: In modern conception, such religious societies are eleemosynary corporations, and as such are exempt from liability in tort for the negligence of their servants and agents, save, perhaps, where there has been a failure of reasonable care in their selection, considered by some authorities as a breach of a non-delegable duty. The propagation of religion is now regarded as investing such societies with the attributes of a charitable institution. It is deemed so related to the general good and welfare as to command that category.

The English law of charities is derived from the civil law; and under that system of jurisprudence wills made for "good and pious uses" were considered privileged testaments, valid notwithstanding uncertainty in the objects. Such uses included bequests for "the maintenance of clergymen, the benefit of churches, hospitals, schools and colleges." Charities are not now restricted to those permitted by the law of England in the Elizabethan era. Eventually, the English Chancery came to regard as charities uses identified with public worship and the promotion of religion; and it is now the generally accepted view that a corporation devoted to the advancement of religion and education "among an indefinite number of persons" is "charitable" in character. Trustees of Cory Universalist Society v. Beatty, 28 N.J.Eq. 570, affirmed sub nom. Beatty v. Trustees of Cory Universalist Church, 31 N.J.Eq. 796; De-Camp v. Dobbins, 29 N.J.Eq. 36, affirmed 31 N.J.Eq. 671; MacKenzie v. Trustees of Presbytery of Jersey City, 67 N.J.Eq. 652, 61 A. 1027, 3 L.R.A., N.S., 227; Jackson v. Phillips, 14 Allen, Mass., 539, 553, et seq.; Fairbanks v. Lamson, 99 Mass. 533; Sears v. Attorney-General, 193 Mass. 551, 79 N. E. 772, 9 Ann.Cas. 1200; McNeilly v. First Presbyterian Church, 243 Mass. 331, 137 N.E. 691; Glazer v. Congregation Kehillath Israel, 263 Mass. 435, 161 N.E. 619.

A charity has been defined by Lord Camden as "a gift to a general public use, which extends to the poor as well as to the rich." Jones v. Williams, 2 Ambl. 651. Charities have their origin in the divine command to love thy neighbor as thyself. And so a "pious" gift is deemed "charitable." A gift to "a church generally creates a public charity." Osgood v. Rogers, 186 Mass. 238, 71 N.E. 306. In Earle v. Wood, 8 Cush., Mass., 430, 445, Chief Justice Shaw said: "All gifts and grants in trust, for the support of public...

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