City of Madisonville v. Bishop

Opinion of the court by JUDGE HOBSON Affirming. Appellee, M. TV. Bishop, is a merchant in the city of Madisonville. He filed this suit to recover for the destruction of a costly plate glass window in his store. He alleged in his petition these facts: On Saturday night, December 23, 1899, the ci fy caused and permitted a nuisance in the street in front of his store by suffering a riotous and tumultuous assembly of about 1,000 persons, unorganized, assembled for the purpose of violating the laws of the State as well as the city, and actually violating them by obstructing the street, rendering the use of it by the traveling public precarious, unpleasant, and dangerous, by discharging large quantities of fireworks, torpedoes, bombs, skyrockets, Roman candles, and other missiles loaded with powerful explosives at and near the plaintiff’s buildings situated on one of the principal business streets of the city, and in the heart thereof, where the buildings are' close together and contain valuable merchandise displayed in expensive plate [108] glass windows; that the mob or unlawful assemblage, without plaintiff’s fault, exploded and fired their fireworks at plaintiff’s building, and at the plate glass windows in it; that it was formed and commenced firing about 5 o’clock in the evening, and continued all night; that the damage to his house occurred about 9 o’clock, after the shooting had been continued over four hours, and after other property in the neighborhood had been destroyed by the same assemblage of persons, with the knowledge of the officers of the city, who knew of the damage it was doing and was likely to do to the property of the citizens, but refused to take any steps to check the nuisance endangering life and property; that they had the power and ability of themselves and with the power of the citizens of the city to prevent the damage, and had notice and good reason to believe, and, in fact did believe, that the tumultuous assemblage was about to take place, and were present among the assembly, and saw and heard what was going on in ample time to prevent it from doing injury; but that they refused to allay or suppress the tumult or mob, and by reason thereof his property was destroyed. The defendant demurred to the petition. Tts demurrer was overruled, and it elected to-stand by its demurrer, and, declining to plead to the petition, judgment was entered against it, and from this judgment it appeals. The action is brought under section 8, Kentucky Statutes: “If within any city, any church, convent, chapel, dwelling-house or house used| or designed for the transaction of lawful business, or ship, or shipyard, boat or vessel, or railroad, or property of any kind belonging to any street or other railroad company, or any article of personal property, shall be injured or destroyed, or if any property therein or thereon shall be taken away or injured by any rio [109] tous or tumultuous assemblage of people tlie full amount of damages so done shall be recoverable by the person injured by action against the city if. the authorities thereof ■have the ability of themselves or with the aid of their own citizens to prevent such damage; but no such liability shall be incurred by such city unless the authorities thereof shall have had notice or good reason to believe that such riot or tumultuous assemblage was about to take place, or having taken plací1, shall have had notice of the same in time to prevent said injury or destruction, either by their own force or by the aid of the citizens of such city. No person shall maintain such action who shall have unlawfully contributed by word or deed toward exciting* or inflaming such tumult or riot, or who shall have failed to do what he reasonably could toward preventing, allaying, or suppressing it.” It is insisted for ihe city that the words “any riotous or tumultuous assemblage of people” refer only to an unlawful assemblage bent on evil, such as a mob, and that it was not contemplated that it should apply to a crowd of merrymakers celebrating the advent of Christmas. The purpose of the assembly, or the aim that it had primarily in view, is not. material, if it was¡ in fact riotous or tumultuous, and the city authorities had notice of it and ability to prevent the damage it did. The word “tumultuous” is thus defined: “Conducted with disorder; noisy, confused, boisterous, disorderly, as a tumultuous assembly or meeting.” “Riotous” is defined thus: “Partaking of the nature of an unlawful assembly or its acts; seditious, tumultu•ous.” Webster. Under these definitions an assemblage of 1,000 people in the main street, of a city, obstructing the use of the street, and discharging bombs, skyrockets, Roman candles, and other missiles loaded with powerful explosives at private property, endangering life and prevent [110] ing the use of the street for the» purposes of business, must certainly be held a riotous or tumultuous assembly. In Jolly’s Adm’x v. City of Hawesville, 89 Ky., 280 (11 R., 477), (12 S. W., 313), the intestate had been killed in a celebration of this kind, and the suit was brought against the city for his death. The court, after showing that the city was not liable aside from the statute above quoted, said: ‘‘Rut the care and particularity with which the conditions of such liability art' set out in the statute, and the restriction of it in express terms to cases of injury to property, show the Legislature' did not intend to thereby authorize a recovery against the city for personal injury resulting from the malfeasance or negligence of police officers.” The action before us is fox an injury to property. The purpose of the statute is to secure the property of the citizen from loss by these disorderly assemblages which the city has reason to believe' will do damage, and may be suppressed by it. Such statutes have been passed in mapy of the State's, and are upheld. 2 Dill. Mun. Corp., sec. 959. The statute should be liberally construed with a view to promote its purposes. Kentucky Statutes, sec. 460. Its aim is the protection of private property against injury by disorderly gatherings of persons, and to require the city to exercise its police power to this end. One of the objects of municipal government is the better security of life and property where the populaiion is crowded. It is known that the police do not always suppress disorderly persons, and the purpose of the statute is to put a check upon tumultuous assemblages of people in the cities, and induce greater vigilance on the part of the police in the maintenance of quiet and good order as well as the proper transaction of business. In State v. Brown, 69 Ind., 95, 35 Am. Rep., 210, under a statute [111] making it a misdemeanor for three or more persons to “act ’in a violent and tumultuous manner,” it was held that a party who went out to charivari a newly-married couple with clubs, bells, trumpets, tin pans, cannon, and other weapons, making a great tumult and disturbance, might be convicted. Sanders v. State, 60 Ga., 126. Judgment affirmed.