Straus v. Imperial Fire Ins. Co.

• Decision Date: 06 February 1888
• Citation: 94 Mo. 182,6 S.W. 698
• Parties: STRAUS et al. v. IMPERIAL FIRE INS. CO.
• Court: Missouri Supreme Court

6 S.W. 698

94 Mo. 182

STRAUS et al. v. IMPERIAL FIRE INS. CO.

Supreme Court of Missouri.

February 6, 1888.

INSURANCE — CONDITIONS IN POLICY — RESISTANCE TO LAWFUL AUTHORITY.

A clause in a fire insurance policy, providing that the company shall not be liable for "damage by fire which shall happen or arise * * * by any person or persons engaged or concerned in notorious resistance to the authority of magistrates, or to any other lawful authority," following other clauses relieving the company from liability when the fire shall happen by invasion, foreign enemy, insurrection, or civil commotion, does not free the company from liability for a fire caused by four or five convicts while attempting to escape from prison, an attempt easily quelled by the guards, although exaggerated accounts of the matter caused great excitement in the neighborhood, as the notorious resistance to authority mentioned in the policy, construed in connection with the other clauses, refers to acts engaged in by many persons, and widely known at the time, and not to those of a few persons, the results of which become notorious.

Appeal from St. Louis court of appeals.

Charles Nagel and Henry Hitchcock, for appellants. Henry T. Kent, for respondent.

BLACK, J.

The policy of insurance upon which this action was based covered certain personal property and machinery located in the state penitentiary at Jefferson City. The property was destroyed by fire on the twenty-third February, 1883. The plaintiffs Straus & Co. recovered a judgment in the circuit court, which was reversed by the court of appeals, and they appealed to this court.

The defenses to the action are based upon the following stipulations in the policy: "Provided, always, and it is hereby declared and agreed, that these respective companies shall not be liable to make good any loss or damage by fire which shall happen or arise * * * by any person or persons engaged or concerned in any riot, or in notorious resistance to the authority of magistrates, or to any other lawful authority.

While the evidence is voluminous, there is little or no conflict in it, and the facts are these: The penitentiary buildings, of which there are a number, are surrounded by a high stone wall. The penitentiary was operated on the contract system, and the plaintiffs used one of the buildings for manufacturing purposes by the employment of hired prison labor. About 95 men were employed in the second story, in manufacturing harness. The first story was used as a collar factory, and was divided into two rooms. Some 65 men were employed in the front room, and 26 in the rear one, which was called the "stuffing room." The state furnished a guard, or time-keeper, for each of these rooms, whose duty it was to keep the time of the men, to keep order, and report to the deputy-warden all violations of the prison rules; but they were not permitted to carry arms. The contractors furnished a foreman for each room. At the time of the fire there were 1,400 convicts in the prison. Between 12 and 1 o'clock on the twenty-third February, 1883, the convicts returned from the dining-hall to the shops, under the direction of their guards. It was the duty of the convicts to take their respective places at the work benches, but they could work or not, as they preferred, until 1 o'clock. Mr. Tarlton, the guard for the second floor of the building used by the plaintiffs, remained on the upper floor platform of the outside stairway while the men in his charge passed into the room. Three or four convicts under the leadership of Johnson, a convict, unobserved by Tarlton, with knives used at the benches in their hands, went down the inside stairway to the first floor. Johnson stepped up to Van Horn, guard in the front lower room, and Snyder, foreman in the same room, who were then talking together, and commanded them to keep quiet, saying to Snyder that he would kill him if he moved, and to both of them that if they kept quiet they would not be hurt. Johnson left the guard and foreman in charge of his associates, and went to the other room, apparently for the purpose of getting assistant foreman Schinberg, who escaped, crying "Murder!" Johnson then came back, and demanded of Snyder his clothes, threatening to kill him if he did not give them up, and at the same time cut his apron string. Snyder yielded up his pants, vest, and hat, and Johnson put them on over his prison garb, took a coat from another guard by the name of Platt, and went into the yard. There he procured a ladder and went to the inclosure wall, and was attempting to place the ladder against the wall, when the guard on the wall accosted him, and Johnson said "there was a riot in the yard, and that he had been sent to hold that post." Baffled in this effort by the threat of the guard to shoot him, Johnson went back to the collar room, cursing, and calling upon the convicts to follow him. He then passed into the "stuffing room," and in the presence of the guard, foreman, and convicts, struck a match and set fire to a quantity of straw. At the alarm of fire, the engineer attached two lines of hose to the fire plug, and was proceeding with one line of hose when Johnson struck him, and at the same time Johnson and his three or four...