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determining the city's liability. He and his employees are only required to conduct themselves as ordinary, careful and prudent men would be expected to do under similar circumstances, and he cannot be charged with negligence because he and his employees decline to take human life to preserve the property from destruction.90 But the owner will not be entitled to recover, if he has instigated or participated in the riot.91

§ 549. Notice to be given.-The statutes generally provide that notice shall be given to the municipal authorities of the threatened violence.92 If the notice required by the statute has been given, and if it appears that the destruction of the property was in no manner aided, sanctioned or permitted by the negligence of the owner, and that he used all reasonable diligence to prevent the damages, a prima facie case is made by showing that a riotous mob assembled, broke into a building, and destroyed and took away property.93 It is held that the notice may be given verbally.94

§ 550. Immaterial ruling.-If before the commencement of the riot the party injured knew of the danger, and had ample opportunity to notify the municipal authorities, a ruling of the court excluding evidence that during the riot he could not have reached the street to notify such authorities is immaterial.95

§ 551. Sufficient time to give notice. The provision requiring notice to be given necessarily contemplates that there shall be sufficient time between the threat or attempt and the execution of it to permit of the giving of the notice, as it is not intended to

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provide redress, available only in cases where the mob should proceed with so much deliberation as to allow their purpose to become known to the person whose property was about to be destroyed, and to deny it in cases where secrecy should be observed, and no suspicion should arise of any unlawful design until it had been accomplished.96 Under the Wisconsin statute it is held that notice to the mayor by an employer does not inure to the benefit of an employee.97

§ 552. Constitutionality of such statutes.-Statutes of this character have been attacked as unconstitutional, but the constitutional right of the legislature to pass such laws has been uniformly sustained. "It cannot be doubted that the general purposes of the law are within the scope of legislative authority. The legislature has plenary power in respect to all subjects of civil government, which they are not prohibited from exercising by the constitution of the United States, or by some provision or arrangement of the Constitution of this state. This act proposes to subject the people of the several local divisions of the state consisting of counties and cities, to the payment of damages to property in consequence of any riot or mob within the county or city. The policy upon which the act is framed may be supposed to be to make good at the public expense the losses of those who may be so unfortunate as, without their own fault, to be injured in their property by acts of lawless violence of a particular kind which it is the general policy of the government to prevent; and further, and principally, we may suppose to make it the interest of every person liable to contribute to the public expense to discourage lawlessness and violence and maintain the empire of the laws established to preserve public quiet and social order. These ends are plainly within the purposes of civil government, and, indeed, it is to maintain them that governments are instituted, and the means provided by this act seem to be reasonably adapted to

Moody v. Board of Supervisors of Niagara County, 46 Barb. (N. Y.) 659. See, also, Salisbury v. Washington Co., 22 Misc. Rep. 41, 48 N. Y. Supp. 122; Solomon v. Kingston, 24 Hun (N. Y.), 562; Newberry v. New York, 1 Sweeny (N. Y.), 369.

It is not necessary to give the notice if it would have been unavailing. Schiellein v. Kings County, 43 Barb. 490. See, also, Long v. City of Neenah, 128 Wis. 40, 107 N. W. 10. "Long v. City of Neenah, 128 Wis. 40, 107 N. W. 10.

the purposes in view." 98 Such statutes are not in conflict with the provision of the Constitution declaring that no person shall be deprived of his property without due process of law.99

100

§ 553. Liberal construction.-Such statutes are both remedial and penal in their nature, and must be liberally construed." The Pennsylvania statute was held to include every form of riotous disturbance, large or small. It was also held not to be necessary for a property owner to give notice to the municipal authorities unless he possesses a knowledge of an intention on the part of the mob to destroy his property, and there is sufficient time intervening to enable him to give the contemplated notice; where the authorities already have knowledge of the intention or attempt to destroy property, such a notice is not necessary.101 The liability of a municipal corporation to make compensation for damages inflicted by a mob is not limited by the fact that they are unable to suppress the riot.102 A statute which provides that damages may be recovered for loss of property or injury to life or limb applies to all bodily injuries, and is not confined to such injuries as result in death or the loss of a limb.103 But in the interest of the taxpayers, the courts should see that the claims are established with reasonable certainty.104

98 Darlington v. Mayor of New York, 31 N. Y. 164, 88 Am. Dec. 248. See, also, Underhill v. City of Manchester, 45 N. H. 214; County of Allegheny v. Gibson, 90 Pa. 397, 35 Am. Rep. 670; City of Chicago v. Cement Co., 178 Ill. 372, 69 Am. St. Rep. 321, 53 N. E. 68, 45 L. R. A. 848; Clear Lake Water Works v. Lake County, 45 Cal. 90; In re Pennsylvania Hall, 5 Pa. 204; Williams v. City of New Orleans, 23 La. Ann. 507; Luke v. City of Brooklyn, 43 Barb. 54; Bringham v. Bristol, 65 Me. 426, 20 Am. Rep. 711; Chadbourn v. Town of Newcastle, 48 N. H. 196; City of Atchison v. Irvine, 9 Kan. 350. A statute, however, limiting the recovery by one assaulted

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§ 554. Common purpose of crowd.-There should be some concert of action or common intention among the crowd to render it a mob. Under the Wisconsin statute it was held that a cause of action was not stated against a city by a complaint that alleged that the plaintiff was injured, while driving along a street on the evening of the Fourth of July, by the explosion of a cannon cracker, thrown and exploded by some one in a crowd of thirty or more, who were obstructing the sidewalk, and in a tumultuous manner engaged in exploding firecrackers, but that failed to allege that there was any common intent or purpose to injure the plaintiff 105 Still, in Kentucky, where on Christmas Eve a crowd composed of a thousand persons assembled in the main street of a city, and discharged missiles loaded with explosives at private property, it was held that the gathering constituted a riotous or tumultuous assemblage of people within the meaning of the statute, and that the city, having notice of the danger, was responsible for the damages inflicted.106 But although a crowd. may assemble for a lawful purpose, it may subsequently unite in unlawful action and do injury for which a city will be liable.107 Under the New Hampshire statute a city was held liable for damages, although the city could not have prevented the destruction, and although none of the rioters were inhabitants of the city.10 108 And under this statute, a newspaper proprietor is entitled to recover damages where his printing materials have been destroyed by a mob. He may recover for damages resulting from the interruption or destruction of his business, and for injury to the goodwill, of his paper, to the extent that such interruption and injury are the direct and natural results of the attacks of the mob.109 A city, however, will not be liable where, in the daytime, an old, unoccupied building is demolished by a crowd of boys who disperse upon the appearance of a police

105

Aaron v. City of Wausau, 98 Wis. 592, 74 N. W. 354, 40 L. R. A. 733.

106

City of Madisonville v. Bishop, 113 Ky. 106, 67 S. W. 269, 57 L. R. A. 130, citing State v. Brown, 69 Ind. 95, 35 Am. Rep. 210; Sanders v. State, 60 Ga. 126, and distinguish

ing Jolley's Admx. v. City of Hawesville, 89 Ky. 280, 12 S. W. 313.

107 Solomon v. City of Kingston, 24 Hun (N. Y.), 562.

108 Palmer v. City of Concord, 48 N. H. 211, 97 Am. Dec. 605.

109 Palmer v. City of Concord, 48 N. H. 211, 97 Am. Dec. 605.

officer, and who show no intent to resist opposition.110 A keeper of a gambling-house is not entitled to recover for property destroyed in a riot in such house arising from a dispute as to a gambling transaction, where the statute provides that no one can recover if the destruction of his property was caused by his illegal or improper conduct.111 A municipal corporation is not relieved from liability because the state militia were sent to the scene of the disturbance.112 It is no defense, under the statute of Kansas, that the city was unable to prevent the injury.113 But the fact that there was no rioting or fighting or unnecessary noise will not excuse a city from liability where a crowd assembles and unlawfully tears down buildings without notice or warning to the owner, and where the police do not endeavor to prevent the execution of the intention of those who have so assembled.114 A municipal corporation cannot relieve itself from liability by showing that it used all its power to prevent the loss of property, or that it was also protected by the state and federal governments. 115 An owner of property is entitled to recover notwithstanding the fact that his employees, when attacked by

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112

Allegheny County v. Gibson, 90 Pa. 397, 35 Am. Rep. 670. See, also, cases holding that a city is not responsible where the acts have been committed by an organized body of citizens acting for the state. Street v. New Orleans, 32 La. Ann. 577; and that it may be shown in mitigation of damages that an ordinance of the city was violated by the plaintiff in exposing their property in the public market, Fortunich v. New Orleans, 14 La. Ann. 115. A judgment for the plaintiff is not justified by evidence that on the afternoon of an election day a crowd,

varying in number from eight to thirty, partially demolished with an ax, a crowbar, a rope and sticks an occupied building, and removed parts thereof, where it appeared that on notification police officers proceeded to the scene, and that the crowd thereupon dispersed, one boy eleven years of age being arrested, and where it appeared that the city had no notice of any such acts or of any threat to perform them, and that it had no reason to apprehend that an attempt would be made to injure the property. Adamson v. City of New York, 96 N. Y. Supp. 907, 110 App.

Div. 98.

113 City of Iola v. Birnbaum, 71 Kan. 600, 81 Pac. 198.

114 Marshall v. City of Buffalo, 176 N. Y. 545, 68 N. E. 1119; S. C., 71 N. Y. Supp. 719, 63 App. Div. 603.

115 City of Chicago v. Pennsylvania Co., 119 Fed. 497.

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