Lycoming Fire Ins. Co. v. Schwenk

95 Pa. 89 *; 1880 Pa. LEXIS 287 **

The Lycoming Fire Insurance Company v. Schwenk et al.

Prior History:  [**1]  Error to the Court of Common Pleas of Northumberland county: Of May Term 1880, No. 135.

Covenant by William Schwenk and Jacob Geise, trading as William Schwenk & Co., for the use of Henry Saylor against the Lycoming Fire Insurance Company, upon a policy of insurance upon a coal-breaker and machinery near Mount Carmel, in Northumberland county.

The defendant pleaded: --

1. That the property alleged in the declaration to have been burned and destroyed by fire "was burnt and destroyed by rioters in the perpetration of a riot and not in any other manner;" 2. That the burning and destruction of the said property "was caused by means of a riot and not in any other manner;'" 3. That the burning and destruction of the said property "was caused by means of a civil commotion, and not in any other manner." The defendant pleaded further "non est factum, covenants performed absque hoc and nil debet."

It was provided by the policy that the defendant should not be liable by virtue of this policy "for any loss or damage by fire caused by means of an invasion, insurrection, riot, civil commotion or military or usurped power," and also that "persons sustaining loss by fire or lightning [**2]  under a policy shall give notice thereof forthwith to the secretary, and within thirty days of said loss deliver to the secretary a particular account and proof thereof, signed and sworn to by them, setting forth among other things: "Sixth, the date of the loss and the amount thereof; Seventh, how the fire originated, so far as said persons know or believe." A fire occurred on the 3d of June 1875, and a statement of the loss sworn to by William Schwenk on the 22d of June 1875, purporting to give a particular account of the loss and the origin of the fire was sent to the secretary of the company, in which among other things was the following: "A fire occurred on the 3d of June 1875, at about the hour of ten o'clock, p. m., and originated as follows, viz.: of my own personal knowledge I do not know, but the two watchmen who were in charge of the premises say that about seventy-five men came to the breaker, and while some stationed themselves as pickets, others carried wood for kindling to the boiler-house, and after saturating the wood and parts of the building with coal oil, set fire to it, and then remained and guarded the premises until they were satisfied that destruction to the [**3]  breaker was certain." No notice of any other cause of the fire was ever given to the company, and on the trial the defendant contended that this was notice that the property was burned and destroyed by means of a riot, and also proved by the watchmen and others that the property was set on fire and destroyed in the manner stated in the notice.

The sixth and seventh points of the defendant with the answers of the court thereto were as follows: --

6. That if the jury believe that the breaker was destroyed by fire in the manner testified by Timothy Adams, their verdict ought to be in favor of the defendant.

Ans. "I cannot charge you as requested as a matter of law, but say to you that I have already in the general charge defined the offence of riot, and have just told you, in answer to the foregoing points of the defendant, what circumstances would be deemed a riot so as to constitute a defence to the plaintiff's claim, and I now submit the testimony of this witness with all the other evidence in the case to you from which you are to find the facts." (10th assignment of error.)

7. That if the jury believe that the breaker was destroyed by fire, and in the manner testified [**4]  by Albert Ford, their verdict ought to be in favor of the defendant.

Ans. "I cannot charge you as requested in this point as a matter of law, but say to you that I have already in the general charge defined the offence of riot, and have just told you, in answer to the foregoing points of the defendant, what circumstances would be deemed a riot so as to constitute a defence to the plaintiffs' claim, and I now submit the testimony of this witness with all the other evidence in the case to you, from which you are to find the facts." (11th assignment of error.)

The material portions of the testimony of Adams and Ford will be found in the opinion of this court. In the general charge, the court, Rockefeller, P. J., inter alia, said: --

"[For the present I will say to you that a riot at common law is the tumultuous disturbance of the public peace by three persons or more assembling together of their own authority with the intent mutually to assist one another against any who shall oppose them in the execution of some private object and afterwards executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended is lawful or unlawful.]  [**5]  (1st assignment of error.) [In order to prove a riot it is necessary at common law to prove on the trial a previous unlawful assembling. It must be shown that the assembling was accompanied with some such circumstances, either of actual force or violence, or at least by such apparent tendency thereto as would inspire the people with terror, such as being armed, using threatening speeches, turbulent gestures or the like. If the assembling of persons be not accompanied with such circumstances as these, it cannot be deemed a riot, however unlawful the acts which they actually committed.] (2d assignment.)

"[Then at common law it was also necessary that there should be a tumultuous disturbance of the public peace. By that is meant, we think, a violent, turbulent, disorderly and noisy disturbance of the public peace.] (3d assignment.) Then this disturbance must be by three or more persons, and they must have assembled together of their own authority, with intent mutually to assist one another against all persons who might oppose them in the execution of some private object, as for instance in the execution of the burning down of a building or anything of that kind. Then it must [**6]  be shown that they afterwards actually did execute this object in a violent and turbulent manner, to the terror of the people.

"While the law is for the court to determine, and you are bound by the instructions of the court on questions of law, yet you are to determine the facts from the evidence in the case, and you must have reference in making up your verdict to all the facts and circumstances in the evidence.

"Then if you believe the evidence, on the night of the 3d of June 1875, the plaintiffs' property was destroyed by fire. You will recollect the testimony of the witnesses on the subject as to what took place at the time that the property was destroyed for which the plaintiffs seek to recover the insurance in this case. Timothy Adams stated that he was there, employed by the plaintiffs, William Schwenk & Co., as watchman; that on the 3d of June, at about eleven o'clock at night, he heard a noise in the bush, a rustling in the leaves. He didn't know for certain what was there but he fired his gun, and immediately after his firing it was returned by another proceeding from the direction of this noise in the woods, and presently by another shot, and then in a short time [**7]  he says there was a volley fired. At one time he said there might have been fifty or seventy shots, and again he said that there might have been only four or five, six, seven or eight. What is meant by a volley was the firing of a number of shots. Then, he says, presently a number of men, probably seven or eight, came out to the breaker and he heard them talking. He was up on the plane of the breaker above them and he heard one of them asking for some wood and another asking for some coal oil; soon after that the breaker was on fire. He doesn't speak of any noise having been made by these men except the firing of the pistols, as he thought, previous to the time of setting fire to the breaker. He moved on down the plane and finally got inside of the drift and remained there a short time when he saw the men going away. He doesn't speak of their having made any noise at the time they were going away.

"Then you heard the testimony of Alfred and Joseph Ford and Harriet Farley, all persons who were in the neighborhood the evening of this fire, and you will determine from these witnesses what actually did occur on that occasion. Young Mr. Ford that he saw the men coming down the railroad;  [**8]  that he heard them talking loudly.

"[You will take into consideration all the evidence. Was this a riot? Was this a tumultuous disturbance of the public peace by three or more persons assembled there together of their own authority with intent, mutually, to assist one another against any who should oppose them in the execution of their purposes, or in burning of the breaker or other property? Did they burn the breaker and other property in a violent and turbulent manner to the terror of the people?] (4th assignment.) You heard the testimony, so far as terror is concerned, of Harriet Farley. She was on her way home from Mount Carmel. She testified as to what she heard and saw. You heard the testimony of Alfred Ford in regard to whether he was put in terror, and the testimony of Timothy Adams on the same subject. [You will determine from all the evidence whether the acts of shooting and the noise that was created by the firing of the building were violent and turbulent acts, and whether they were to the terror of the people. We think that it is not necessary that there should have been shouting or blowing of horns; that the noise caused by the shooting off of guns and pistols [**9]  would be a tumultuous disturbance of the public peace.]"

The 12th assignment of error was as follows:

"Because the general charge of the court, as to what constitutes a riot, differs from and is in conflict with the law as is stated by the court by affirming the third and fifth points of the defendant below, which the court below affirmed to be correct to such a degree as to be contradictory and irreconcilable, and this contradiction tended to confuse and mislead the jury, and prevented them from obtaining from the charge any certain idea of what is necessary in law to constitute a riot, to wit: the court in their general charge say, 'then at common law it was also necessary that there should be a tumultuous disturbance of the public peace. By that is meant, as we think, a violent, turbulent, disorderly and noisy disturbance of the public peace, &c.'"

The following are the 3d and 5th points, with the answers of the court.

3. "That if any persons to the number of three or more shall meet together with clubs, staves or other hurtful weapons, to the terror of the peaceable people or inhabitants of this Commonwealth, and shall commit or design to commit violence or [**10]  injury upon the persons or goods of any of the said inhabitants, such persons are guilty of riot."

Ans. "I answer this point as requested."

5. That noise is not a necessary element of a riot, nor is it necessary that any person should be put in actual fear, but if a number of men, to the number of three or more, banded together for the purpose of destroying the breaker of the plaintiffs, and having armed themselves with pistols or other arms or weapons, went to the said breaker with a determination and purpose to destroy it, against any resistance that the watchmen there might offer, and did actually destroy it by fire, the plaintiffs cannot, under the terms of the policy of insurance, recover in this suit, and the verdict ought to be in favor of defendant.

Ans. "Affirmed."

Verdict for plaintiffs for $ 2473.33, and after judgment thereon, defendant took this writ and alleged that the court erred, inter alia, as set forth in the above assignments of error.

Disposition: Judgment reversed.

CORE TERMS

breaker, shots, riot, fired, circumstances

Criminal Law & Procedure, Disruptive Conduct, Riot, Elements, General Overview