On appeal from a judgment of the Essex County Circuit Court.
For the appellant, Meyer M. Semel.
For the respondents, Reginald V. Spell (Wilbur A. Stevens, of counsel).
The opinion of the court was delivered by
HEHER, J. The fundamental question at issue is whether a religious society is exempt from liability for damages to a nonmember beneficiary of its incidental philanthropy 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 31st, 1853, under the provisions of an enactment entitled "An act to incorporate trustees of religious societies," Revision of April 17th, 1846 (Rev. Stat. 1846-1847, 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 6th, 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. ...