Butte Miners' Union v. City of Butte

MR. JUSTICE COOPER

delivered the opinion of the court.

This action was commenced in Silver Bow county to recover damages sustained for injuries to property on two different occasions at the hands of mobs assembled in the city of Butte. It is not disputed that the ownership of the building known as Miners’ Union Hall, and the personal property contained therein at the time of the injuries; was in the plaintiff corporation; nor that the removal and destruction of it were accomplished by mobs within the city limits.

The complaint consists of two causes of action. The first alleges, in substance, the assembling of a mob on June 13, 1914, the attack upon plaintiff’s property with clubs, bricks and bottles; the beating up of persons upon the streets, and the carrying away and destruction of personal property of the value of $30,000. In the second cause of action it is alleged that on June 23, 1914, plaintiff’s building, known as Miners’ Union Hall, was attacked by a mob, torn down and destroyed, to its damage in the sum of $63,000. The answer denies all the allegations of both causes of action, and as against the first cause of action it is affirmatively alleged that the plaintiff was advised upon several occasions prior to, and particularly on,- June 13, 1914, that if it should attempt to conduct a parade upon'that day, such attempt would cause a riot and injury and destruction of its property would follow as a result thereof; that defendant did not know, nor by the *398 exercise of reasonable diligence could have ascertained, that a mob would gather; that the plaintiff knew of the danger attending the holding of a parade and that it would cause injury to its property, but failed and neglected to advise defendant of its fears in that regard. Against the second cause of action it is alleged that plaintiff through its officers caused firearms, guns and ammunition to be stored in its building; that during a meeting attended by more than a quorum of its members, when, one of its members attempted to enter its building for the purpose of participating in the proceedings, men stationed in the building shot and injured such member and also shot into the crowd in front of the building on Main Street, wounding two persons and killing another, thereby causing the crowd to become enraged and to attack and partially destroy the building; that until the shooting commenced no damage had been done, and but for the shooting plaintiff’s property would not have been damaged. By replication all of the affirmative allegations of the answer were denied.

The cause was transferred to Powell county, where it was tried to a jury, and a verdict and judgment were rendered and entered in behalf of defendant. A motion for a new trial was made and overruled and appeal taken to this court from the judgment and order so made.

Appellant’s'position'is that its right to recover is not to be denied it merely because it did not notify defendant that it would hold a parade and that damage would result therefrom, but that plaintiff had a right to parade the public streets of the city, to meet in lawful assembly,, and to repel attack by such force as might be necessary to preserve the lives of its members and to prevent the destruction of its property.

Respondent’s answer to this is that by reason of the holding of the parade, the plaintiff’s failure to notify the city of its intention to parade, the storage of guns, ammunition and explosives in the building, and the shooting therefrom into the assemblage of persons on Main Street in front of the build *399 ing, the riot occurred and plaintiff’s property was removed and damaged.

Thirty-six errors are pressed upon our attention by appellant, but we shall notice only those affecting the turning points in the ease, and those questions likely to arise upon another trial.

Primarily, government exists for the maintenance of peace [1,2] and social order. The purpose of our statute, and those of similar import, is to create municipal liability and tend to instill in the minds of every person liable to contribute to the public expense, a will to discourage violence and to stimulate effort to preserve public safety. This view is upheld by the supreme court of the United States in the case of City of Chicago v. Sturges, 222 U. S. 313, 323 , Ann. Cas. 1913B, 1349, 56 L. Ed. 215 , 32 Sup. Ct. Rep. 92 [see, also, Rose’s U. S. Notes], where the history and purpose of this character of legislation are reviewed, as follows: “The state is the creator of subordinate municipal governments. It vests in them the police power essential to the preservation of law and order. It imposes upon them the duty of protecting property situated within their limits from the violence of such .public breaches of the peace as are mobs and riots. This duty and obligation thus intrusted to the local subordinate government is by this enactment emphasized and enforced by imposing upon the local community absolute liability for property losses resulting from the violence of such public tumults. The policy of imposing liability upon a civil subdivision of government exercising delegated police power is familiar to every student of the common law. We find it recognized in the beginning of the police system of the Anglo-Saxon people. Thus, ‘The Hundred,’ a very early form of civil subdivision, was: held answerable for robberies committed within the division. By a series of statutes, beginning possibly in 1285, in the statutes of Winchester, 13 Edw. I, C. I, coming on down to the 27th Elizabeth, C. 13, the Riot Act of George I (I Geo. I, St. 2), and Act of 8 George II, C. 16, we may find a con *400 tinuous recognition of the principle that a civil subdivision intrusted with the duty of protecting property in fits midst and with police power to discharge the function may be made answerable not only for negligence affirmatively shown, but absolutely as not having afforded a protection adequate to the obligation. Statutes of a similar character have been enacted by several of the states and held valid exertions of the police power. (Darlington v. Mayor etc. of City of New York, 31 N. Y. 164 , 88 Am. Dec. 248 ; Fauvia v. City of New Orleans, 20 La. Ann. 410 ; County of Allegheny v. Gibson, 90 Pa. St. 397, 35 Am. Rep. 670 .) The imposition of absolute liability upon the community when property is destroyed through the violence of a mob is not, therefore, an unusual police regulation. Neither is it arbitrary, as not resting upon reasonable grounds of policy. Such a regulation has a tendency to deter the lawless, since the sufferer must be compensated by a tax burden which will fall upon all property, including that of the evil-doers of the community. It is likewise calculated to stimulate the exertions of the indifferent and the law-abiding to avoid the falling of a burden which they must share with the lawless. In that it directly operates on and affects public opinion, it tends strongly to the upholding of the empire of the law.”

"We are not at liberty to read into a statute like section [3] 3485 of the .Revised Codes, language qualifying the right of recovery, but are bound, rather, to assume that had the legislature intended to prescribe the conditions under which it should come into force, it would have particularized in plain and unmistakable words the things intended to prevent recovery under it. Its language is: “Every city or town is responsible for injuries to real or personal property within its corporate limits, done and caused by mobs or riots.” Having, thus spoken upon the subject, for- constitutional reasons familiar to all, it is beyond the scope' of judicial power to write exceptions into a law the legislature has not seen fit to place there. (County of Allegheny v. Gibson, supra; Williams v. *401 City of New Orleans, 23 La. Ann. 507 .) While the statute upon its face is .absolute, it may well be that eases might arise in which the courts would be impelled to deny a suitor its benefits. For instance: It is one of the legal maxims of the jurisprudence of this state that no one can take advantage of his own wrong (Bev. Codes, see. 6185). In the present [4] case, however, nothing short of the commission of an overt act by some agency authorized or abetted by the plaintiff itself to which the damage can be clearly attributed would relieve the city of responsibility under the statute, for along with the right the statute accords are the guaranties of the Constitution that the right of enjoying and defending life, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness in all lawful ways (Const, of Montana, Art. Ill, sec. 3), and the right to bear arms in defense of home, person and property shall not be called in question (Id., Art. Ill, see. 13). In the light of this reasoning, it was the duty of the district court to inform the jury that if the evidence disclosed that, annually, on June 13 (known as Miners’ Union Day), it had been the custom of the plaintiff to hold a parade in the public streets of the city of Butte, that of itself would constitute sufficient notice to the city; and that plaintiff’s right to recover for the destruction of its property could not in any event be affected by its failure to advise the city of its intention to parade, as it was wont to do. It was likewise its duty to state fully to the jury the principle of the statutes applicable to the evidence, and to instruct them that the city would be liable for the damage done to plaintiff’s property through mobs or riots, unless, from a preponderance of all the evidence in the case, it appeared that the plaintiff, by its own wrongful conduct, induced the injury for which damages were sought.

At the close of all the testimony, and without objection on the part of plaintiff, the court instructed the jury, in effect, that the defendant city was liable for injuries to the property of the plaintiff, done or caused by mobs or riots, *402 regardless of its ability or inability to prevent it; that the plaintiff had a lawful right to hold a peaceable parade in accordance %yith its custom; that in so doing neither plaintiff nor its members were in any manner violating any law of this state or of the United States, nor doing anything that would justify persons or a mob in destroying the property of plaintiff; that before such a defense could be considered the jury must find that said parade was organized for an unlawful purpose, and that such parade was the proximate cause of the riotous and destructive acts of the mob on the thirteenth day of June; that if the jury found that the members of the plaintiff corporation were peaceably assembled bn the evening of June 23, 1914, and were gathered in plaintiff’s building in attendance upon a meeting being held therein, and that such members did carry and bear firearms within said building at the time of said meeting, such facts alone would not be a defense in this action, unless they further found that such firearms were present in the building for unlawful purposes.

Objection was made by the plaintiff to the giving of instruction No. 9, in which the jury were told that plaintiff [5] could not recover, “notwithstanding the fact that there had been a neglected duty on the part of the defendant city, or its officers, with reference to the mobs or rioting on the 13th of June, 1914, whereby plaintiff’s property was damaged or injured, if the plaintiff, by want of ordinary care, or by its own voluntary acts so far contributed to the injury that, had it not been for its acts and want of ordinary care, the injury would not have happened.” The phrase “want of ordinary care” used in the instruction injected into the case an issue which neither the pleadings nor the nature of the action justified. Neither did the court advise the jury what acts or omissions of the plaintiff constituted the “voluntary acts” contributing to the destruction of plaintiff’s property. Who can say, therefore, that tHe verdict of the jury, so far as it responds to the issue raised by the affirmative defense to the first cause of action, does not rest upon the alleged *403 failure on the part of the plaintiff to give notice to the city authorities that it intended to conduct its usual annual parade, and that it had reason to apprehend that damage might be inflicted upon its property if it. carried out its purpose so to do? Or who can say that the jury did not, upon the issue created by the defense interposed to the second cause of action, base its verdict upon the presumption that the plaintiff caused firearms, ammunition and explosives to be stored in and about its meeting place, for purposes other than that of preserving the lives of its members and the protection of its property; or that the jury reached the verdict it did under the impression that the weapons plaintiff had caused to be stored in its building were recklessly, without provocation and unlawfully pointed at and discharged into an orderly assemblage of persons in front of its building, and constituted in the minds of the jury the “voluntary acts” or “want of ordinary care” referred to in the instruction.

Upon the whole record before us, it is apparent that the district court adopted and applied principles of law opposed to those above announced, and submitted the case to the jury upon the erroneous theory that the plaintiff merely by the storage of arms in the building provoked the attack and brought upon itself the injury complained of. For these reasons the judgment and order are reversed and the cause is remanded to the district court for a new trial in conformity with the views herein expressed.

Reversed and remanded.

Mr. Chief Justice Brantly and Associate Justices Holloway and Hurly concur.

Rehearing denied December 13, 1921.