Yalenezian v. City of Boston
| Decision Date | 31 May 1921 |
| Citation | 131 N.E. 220,238 Mass. 538 |
| Parties | YALENEZIAN v. CITY OF BOSTON. GOODMAN v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division; James P. Parmenter, Judge.
Actions by Albert Yalenezian and by Harry Goodman against the City of Boston, to recover damages for clothing and merchandise taken from plaintiff's places of business by members of a mob. The municipal court found for plaintiffs, and reported case to the appellate division, which dismissed the reports, and defendant appeals. Reversed, and judgment entered for defendant.Arthur D. Hill, Corp. Counsel, and Samuel Silverman, Asst. Corp. Counsel, both of Boston, for appellant.
Maurice Klein, for appellee Yalenezian.
Alfred A. Silton, of Boston, for appellee Goodman.
These are actions of tort, brought under R. L. c. 211, § 8, to recover of the defendant three-fourths of the value of certain personal property of the plaintiff, alleged to have been destroyed or injured by 12 or more persons ‘riotously or tumultuously assembled’ on the evening of September 9, 1919, and the morning of September 10, 1919.
Section 8 reads:
‘If property of the value of fifty dollars or more is destroyed or if property is injured to that amount by twelve or more persons who are riotously or tumultuously assembled, the city or town within which the property was situated shall, if the owner of such property uses all reasonable diligence to prevent its destruction or injury, and to procure the conviction of the offenders, be liable to indemnify the owner thereof in an action of tort to the amount of three-fourths of the value of the property destroyed or of the amount of such injury thereto, and may recover the same against any or all of the persons who destroyed or injured such property.’
In each case the defendant rested upon the plaintiff's evidence, and before the final arguments made the following requests for rulings:
‘1. On all the evidence the plaintiff is not entitled to recover.
‘2. If the evidence shows that the property of the plaintiff was stolen from his premises, the defendant is not liable under section 8, c. 211, of the Revised Laws, and the plaintiff is not entitled to recover.
In the case of Goodman there were additional requests, included and classified in the requested ruling numbered ‘10,’ which reads as follows:
‘In order to constitute a riotous and tumultous assembly under section 8, c. 211, of the Revised Laws, it is necessary that all of the following five elements be present and in the absence of any one of them a riotous and tumultuous assembly does not exist:
‘(a) There must have been twelve or more persons assembled.
‘(b) Those assembled must have had a common purpose.
‘(c) Those assembled must have executed or begun to execute their common purpose.
‘(d) Those assembled must have intended to help one another by force if necessary against any person who should oppose them in the execution of their common purpose.
‘(e) Those assembled must have not only used force or violence in demolishing and destroying the plaintiff's property but must have displayed such force or violence in such a manner as to have alarmed at least one person of reasonable firmness and courage.’
The judge refused to give requests numbered ‘1,’ ‘2,’ ‘3,’ and those lettered ‘d’ and ‘e,’ and gave in substance the remaining requests as formulated under the alphabetical letters ‘a,’ ‘b,’ ‘c.’ No decisions upon the statute have been rendered in this commonwealth. It is plain no commonlaw right of the plaintiffs has been violated. Hathaway v. Everett, 205 Mass. 246, 91 N. E. 296,137 Am. St. Rep. 436. It is not contended but that the evidence tended to show that the plaintiffs used all reasonable diligence to prevent the destruction or injury to their property, and to procure the conviction of the offenders.
The statute is not in derogation of any common-law right of the defendant; it is the principle of making all members of a territorial or municipal division sureties for each other in criminal matters, which has found voice in England in the statutes of hue and cry, of robbery, and the protection of property from violence. 1 Bl. Comm. 114, 115, 116; Pinkney v. Rutland, 2 Saund. 374; Crabbe, Hist. of England, 189; Stat. of Winchester, 1 St. 13 Edw. 1, p. 2, c. 3, re-enacted 28 Edw. III, c. 2; St. 27 Eliz. c. 13, § 2; 1 George I, c. 5, §§ 1-7. The object of these statutes, and the policy of the particular statute and similar statutes, is ‘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 duty of the government to prevent.’ Such an act is both remedial and penal. ‘It is remedial so far as it provides compensation to the person whose property has been destroyed, and penal so far as it throws the burden of that compensation on the municipality within whose borders the destruction took place.’ In this aspect the statute is to be construed liberally and in such a way as shall tend to suppress the mischief. Underhill v. Manchester, 45 N. H. 214, 221 (1864); Darlington v. Mayor of New York, 31 N. Y. 164, 88 Am. Dec. 248 (1865); Chicago v. Sturgis, 222 U. S. 313, 323, 32 Sup. Ct. 92, 56 L. Ed. 215, Ann. Cas. 1913B, 1349 (1911); County of Allegheny v. Gibson's Son & Co., 90 Pa. 397, 35 Am. Rep. 670.
In the Goodman Case a concise statement of facts as shown by the uncontradicted testimony of the witnesses, is as follows: September 9, 1919, at 11:30 p. m., there was ‘a large crowd of people * * * in the street in the vicinity of the plaintiff's store,’ shouting, shooting dice for money, singing, dancing and fighting to a degree that a witness testified that ‘things were terrible there, and we were afraid to go through the street.’ At the same place and on the same night at 11:45 p. m. the windows and doors of the store were crashed and broken, and 15 or 20 men entered the store and came out with clothing on their arms. They ran down the street from the store with the clothing, ‘every one had something,’ all had clothing, and two with a small trunk.
In the Yalenezian Case the facts as shown by, and reasonably to be inferred from, the uncontradicted testimony are, that at 1 a. m. on September 10, 1919, crowds passed the store of the...
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Com. v. Abramms
...to pay damages caused by a riotous or tumultuous assembly that it had an obligation to control. See Yalenezian v. Boston, 238 Mass. 538, 542-543, 131 N.E. 220 (1921); Abraham v. Woburn, 383 Mass. 724, 728, 421 N.E.2d 1206 (1981). The Abraham court, supra at 728, 421 N.E.2d 1206, quoting fro......
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A & B Auto Stores of Jones Street, Inc. v. City of Newark
...foreign jurisdictions are in conflict in construction of their own civil riot statutes. Defendant cites Yalenezian v. City of Boston, 238 Mass. 538, 131 N.E. 220 (Sup.Jud.Ct.1921), in support of its position. The Massachusetts statute in issue is similar to 'A theft of property does not sig......
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Abraham v. City of Woburn
...in the neighborhood of such assembly reasonable grounds to apprehend a breach of peace in consequence of it." Yalenezian v. Boston, 238 Mass. 538, 542-543, 131 N.E. 220 (1921). 5 We have also stated that "(p)ersons having lawfully come together and being lawfully together, may, thereupon, b......
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Commercial Union Ins. Co. of New York v. City of Wichita, 47576
...of any who might have had a disposition to come to the assistance of the plaintiff.' (p. 47, 197 P. p. 864.) And in Yalenezian v. Boston, 238 Mass. 538, 131 N.E. 220, there was "a large crowd of people . . . in the street in the vicinity of the plaintiff's store,' shouting, shooting dice fo......