Casey v. Roman Catholic Archbishop of Baltimore

• Decision Date: 19 July 1958
• Docket Number: No. 299,299
• Citation: 143 A.2d 627,217 Md. 595
• Parties: , 72 A.L.R.2d 893 Harriet M. CASEY v. ROMAN CATHOLIC ARCHBISHOP OF BALTIMORE.
• Court: Maryland Court of Appeals

Page 595

217 Md. 595

143 A.2d 627, 72 A.L.R.2d 893

Harriet M. CASEY v. ROMAN CATHOLIC ARCHBISHOP OF BALTIMORE.

No. 299.

Court of Appeals of Maryland.

July 19, 1958.

Dissenting Opinion July 28, 1958.

Paul Berman and Melvin J. Sykes, Baltimore (Sigmund Levin and Theodore B. Berman, Baltimore, on the brief), for appellant.

J. Gilbert Prendergast and George E. Thomsen, Baltimore (Clark, Smith & Prendergast, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

Harriet M. Casey, plaintiff-appellant and cross-appellee (the plaintiff), brought suit in the Superior Court of Baltimore City against Roman Catholic Archbishop of Baltimore, a corporation sole of the State of Maryland (corporation sole or defendant), as the holder of the legal title to St. Patrick's Roman Catholic Church of Havre de Grace, for damages arising out of personal injuries she sustained when she slipped and fell on the waxed floor of the church building. The jury returned a verdict in favor of the plaintiff for $2,500, but, claiming that the award was inadequate, she appealed alleging errors in the examination of the jurors on their voir dire, in a ruling on the evidence, and in the instructions of the court with respect to damages. The right of the plaintiff to appeal from a judgment in her favor is not disputed. The corporation sole filed a cross-appeal on the ground that there was insufficient evidence of negligence for the case to go to the jury.

In the afternoon of Saturday, October 2, 1954, before the plaintiff arrived, two workmen or sextons had cleaned and waxed the floors inside the church. At least three-fourths of the center aisle had been waxed with a liquid spread by an ordinary domestic rag mop made of twisted strings. No buffer was used because it was too late in the afternoon and the sextons thought it would be 'better to leave the wax on and let the people work it out themselves,' that is, by walking on it. Although there was no unanimity as to the condition of the weather, it appears that it was not conducive to quick drying. The church was not well lighted, and one witness testified that the center aisle was the darkest part of the church. The church had stained glass windows, and there was evidence that there was no artificial lighting in the main body of the church at the time of the accident.

The plaintiff, an elderly maiden lady and a member of St. Patrick's Parish, arrived at the church at about 5 o'clock, entered the main door, which was at the far end of the church from the alter, walked down the center aisle to the second pew from the main door, and prayed prior to making her confession. Her ante-confession prayers completed, she turned toward the main door, proceeded to the confessional booth immediately to the right of the center aisle from the main entrance, and remained there until about ten after five. Then, as was her custom, and in fact the usual custom for all parishioners, she walked up the center aisle toward the altar to complete her prayers. She did not notice that the floor was slippery until she slipped and fell at a point slightly over halfway to the alter rail. When her feet slipped from under her she fell backwards. She tried to break the fall with her hands and in so doing broke bones in both wrists, and the back of her head struck the title floor. A sergeant in the Air Force interrupted his prayers to aid the plaintiff, and when he approached the place where she was lying, he too slipped but managed to check a fall. He then observed a translucent fluid in the middle of the aisle which appeared to be wax. There was other testimony that there were wet spots which were 'dangerously slippery' due to the wax on the floor. Another parishioner had also slipped a few minutes before the plaintiff but she did not fall. Although the evidence was conflicting, there was also testimony that there were no barriers across the center aisle to give warning of the possibly dangerous condition. No verbal warning of the slippery condition was given to the plaintiff, although at least one other parishioner was so warned.

Father Monmonier, the parish priest, was called and, according to the sextons, he tested the floor by trying to 'skate' up the aisle on the waxed surface to ascertain how slippery the floor was. He 'skated' from where the plaintiff was lying and was stopped only by the alter rail. As a result of the test, he gave orders to the sextons to remove the wax immediately and to mop the center aisle with clear warm water, which was promptly done.

After the accident the plaintiff was taken to the hospital where she remained for three weeks. For three weeks after her discharge, a nurse and a maid took care of her. But the effects of her injuries persisted. It was estimated that she had a permanent disability of between thirty-five and fifty per centum, and a loss of functioning in both hands and both arms.

We shall consider the question of the sufficiency of the evidence as to negligence first, and then the errors alleged by the plaintiff.

(i). Negligence.

Since there was legally sufficient evidence to entitle the plaintiff to recover, the trial court was correct in submitting the issues of negligence and contributory negligence to the jury. In Isaac Benesch & Sons v. Ferkler, 1927, 153 Md. 680, 139 A. 557, recovery was permitted against a department store by a customer who testified that the floor on which she fell was "dark and mucky and smeary, like an oiled floor would be when the oil was not dried," and that the oily condition of the floor was 'what caused her to fall.' We upheld the propriety of submitting the case to the jury by saying, 153 Md. at page 684, 139 A. at page 559:

'There were facts from which the jury might conclude that the appellant [defendant] had been negligent. It was not the mere fact that the floor was oiled and the appellee [plaintiff] fell that entitled her to recover; it was the condition in which the floor was left as a result of the oiling that was submitted to the jury, * * *.'

In the case now before us there was ample evidence of the condition in which the floor had been left. The wax had been poured on and spread only with a rag map, and had not been buffed. No effort had been made to leave the surface of the floor with a uniform smoothness. That task was left to 'the people' by walking on it. As a result wet spots remained in the middle of the aisle which were 'dangerously slippery.' One such spot was within two paces from where the plaintiff fell. Other persons had slipped on the floor both before and after the plaintiff had fallen. Immediately after the accident the parish priest was able to slide or 'skate' up the aisle about thirteen feet to the alter rail, whereupon he ordered the wax removed. One of the sextons had warned another parishioner, but he had not warned the plaintiff of the slippery condition. Under these circumstances, it cannot be said that there was no evidence of negligence. See Prosser, Torts (2d ed. 1955) § 78. Furthermore, whether the plaintiff was guilty of contributory negligence in failing to be on the lookout for a waxed floor or in not observing the slippery condition of the floor was also a question of fact for the jury, and not a question of law for the trial court to decide in this case. Isaac Benesch & Sons v. Ferkler, supra.

(ii). Voir Dire Examination.

Before the trial began the plaintiff requested the court to inform the jury that the defendant was a corporation sole and as such was the 'owner and * * * in possession and control' of the church building, and to propound the following questions to the panel of jurors on their voir dire:

'(1) Does any member of the jury panel have any preconceived objections to, or any preconceived opinions in favor of, or any bias or prejudice in favor of or against, a suit in which Roman Catholic Archbishop of Baltimore, a corporation sole of the State of Maryland, is sought to be held liable in damages for injuries claimed to have resulted to a person, a member of the Parish of the Roman Catholic Church in which such person claims to have been injured, that would prevent you from fairly and impartially deciding such a case?'

'(2) If, in your opinion, the evidence in the case warrants a verdict for the plaintiff, Miss Casey, against Roman Catholic Archbishop of Baltimore, a corporation sole of the State of Maryland, the defendant, is there any member of the jury panel who could not fairly and impartially assess damages in the case in the same manner as if the defendant were a regular corporation or a natural person?'

The court declined to inform the jury or to ask the questions as requested. There is a difference of opinion as to whether the jurors heard the clerk recite the title of the case when it was called for trial. In any event, the trial court, after informing the jurors that one of the parties was a 'religious corporation,' propounded the following question:

'Is there any reason, such as religious scruples or any other reason, which would prevent any one of you from giving the parties a fair and impartial trial, finding a verdict based only on the law and the evidence?'

None of the panel indicated that he had any bias or prejudice, when interrogated on his voir dire. It is possible, of course, that the jurors may have heard the titling of the case when they were sworn to try the issues, but there is nothing to indicate whether they did or not. However, the record does not disclose that any juror informed the court at that time of his disqualification.

The rule with respect to the bias or prejudice of a juror in certain cases is stated in 31 Am.Jur., Jury, § 183, in this manner:

'A general, abstract bias or prejudice which a juror may entertain to a class of litigation will not of itself disqualify him from trying a cause, when it appears that he can set that feeling aside and can and will fairly and...