Commercial Union Ins. Co. of New York v. City of Wichita, 47576

• Decision Date: 10 May 1975
• Docket Number: No. 47576,47576
• Parties: COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK et al., Appellants, v. The CITY OF WICHITA and George Lux, Appellees.
• Court: Kansas Supreme Court

Page 54

536 P.2d 54

217 Kan. 44

COMMERCIAL UNION INSURANCE COMPANY OF NEW YORK et al., Appellants, v. The CITY OF WICHITA and George Lux, Appellees.

No. 47576.

Supreme Court of Kansas.

May 10, 1975.

Syllabus by the Court

1. The issues in a case are those set out in the pre-trial order. In the absence of a challenge to that order or any effort to amend it, this court will not consider on appeal issues or contentions which are not fairly encompassed therein.

2. A 'mob,' as defined by K.S.A.1974 Supp. 12-204, must engage in some riotous or disorderly conduct causing a disturbance of the public peace before a city may be held liable for damages or injuries caused by its action.

3. The statutes imposing liability on cities for the actions of a mob are aimed at the mass action of the multitude, as distinct from the acts of a few bent on a particular mischief.

4. While not every member of a mob must personally participate in causing any particular damage or injury, before it may be said that such damage or injury is 'caused by the action of a mob' there must be some sort of mob participation. At the very least the immediate influence of the mob must be exerted on those members who do physically cause the damage or injury.

5. Former K.S.A. 21-1001 and 21-1002 dealing with unlawful assemblies had no bearing on a city's liability under the mob statutes.

6. Under former K.S.A. 21-1002 the duty of a conservator of the peace to disperse an unlawful assembly was a duty owed to the public at large, and not to any particular individual. Breach of that duty did not render him liable for damages caused by a mob which might grow out of an unlawful assembly.

7. A public officer exercising discretion in the performance of his official duties is not liable for resulting injuries in the absence of malice, oppression, wantonness, or willful misconduct.

8. The control of discovery is entrusted to the discretion of the trial court and a ruling thereon will not be disturbed on appeal in the absence of a clear abuse of that discretion.

9. In an action against a city and a police officer for damages arising out of the fire bombing of a business establishment it is held: (1) The evidence failed to show that the damage claimed was caused by the action of a mob so as to make the city liable; (2) the trial court correctly rendered summary judgment in favor of the officer; and (3) the trial court did not prejudicially restrict plaintiffs' right of discovery.

Frank C. McMaster of McMaster & Smith, Wichita, argued the cause and was on the brief for appellants.

H. E. Jones of Hershberger, Jones, Patterson & Thompson, Wichita, argued the cause, and John Dekker, City Atty., Wichita, was with him on the brief for appellees.

FOTH, Commissioner:

This action arose out of the fire bombing of the Gentry Shop, a Wichita clothing establishment, in the early morning hours of August 10, 1968. Plaintiffs are three insurance companies which had issued fire policies on the establishment and who paid the owner an aggregate of $141,748.01 for the loss sustained. As subrogees they brought this action to recoup the loss from the City of Wichita, the Wichita chief of police, the assistant chief of police, and Detective George Lux. Their theory of liability, as set forth in the pre-trial order, was:

'The plaintiffs contend that they are entitled to recover under and by virtue of K.S.A. 12-203 and 12-204, and under the provisions of K.S.A. 21-1001 and 21-1002, and further contend that said defendants are required to respond, regardless of whether or not said actions could have been prevented with the facilities available.'

K.S.A.1974 Supp. 12-203 and 12-204 are our present 'mob' statutes; K.S.A. 21-1001 and 21-1002 (since repealed) prohibited unlawful assemblies.

A motion for summary judgment was sustained in favor of each of the individual defendants and the case went to trial before a jury against the city alone. The jury verdict was in favor of the city, and plaintiffs have appealed. As to the individual defendants, plaintiffs claim error only in the summary judgment for Detective Lux, so that he and the city are the two appellees.

The Gentry Shop is located at 17th and Holyoke, in northeast Wichita near Wichita state university. Across the street is a Peter Pan ice cream store. In early August, 1968, there had been some degree of racial turbulence in Wichita punctuated by an occasional fire bombing. When Detective Lux went on duty around 6:00 or 7:00 o'clock the evening of August 9, his lieutenant advised him 'there had been some problems with some young black males at the Peter Pan Store, that they had made a comment that they would come back and burn it down.'

Lux, having no particular assignment as a detective that evening, patrolled the northeast section of town. At about 11:00 p. m. he stationed himself in his car on Fairmount (a block from Holyoke) just off 17th Street, where he could observe the Peter Pan store without being seen. From his vantage point he could survey the intersection of 17th and Holyoke and also see the Gentry Shop. He stayed there for about two hours although, he said, 'Several times I was ready to pull off, go get a cup of coffee, however I just struck around. But there was no activity that called, that needed a detective there.'

About 1:00 a. m., as Lux continued his vigil, he saw two cars come from the west on 17th and turn south on Fairmount. One was a two-tone green Dodge, the other a small white compact. They were traveling at a normal speed and doing nothing unusual. A few minutes later he observed four black males come from the south on Holyoke to the intersection of 17th. Three went into an L-shaped recess where the Gentry Shop was, and one stayed on the sidewalk. They were not carrying anything Lux could see, but his suspicions were apparently aroused because he engaged in prompt action. In his words:

'I started to pull out; I was attempting to get on the radio, on the air, to notify the dispatcher to send another car up into the area. As I started moving, I saw all four run. I then saw a bright red flare. Pulled on down to the intersection of Holyoke. I did see a front window in this area was burning. I went south on Holyoke and to 16th Street. I started to stop and talk with several white males that was right around the corner on 16th off of Holyoke to see if they had seen any black males. About that time I did see the Dodge I had seen earlier pull off of Fairmount onto 16th going east. I then gave chase.'

He chased the Dodge some twenty to thirty blocks before stopping it and apprehending four of its five occupants. The fifth, who ran away, was apprehended later. Of the five, only one was over eighteen years of age. Two were fifteen, and two were sixteen or seventeen. All were black. Three of the four two were apprehended by Lux gave tape recorded statements later that morning to Lux and a fire department investigator. Transcripts of these statements were admitted into evidence as plaintiffs' exhibits.

In their statements the three young men told of being at a party earlier that evening at 18th and Hydraulic in Wichita. (There is no evidence that the police had any knowledge of this party until these statements were taken.) There were thirty to forty people of both sexes there, and the idea came up to set fire to several businesses with Molotov cocktails. Four businesses were mentioned, including the Gentry Shop.

Acting on this suggestion five party-goers departed in the green Dodge. They were followed by two others in a white compact Pontiac. They first secured two soda pop bottles from the home of one of the boys, and then sought gasoline. From the hose of a pump at a station closed for the night they drained enough gasoline to fill one bottle. A strip torn from one of their shirts served as a fuse. Thus equipped they proceeded to the Gentry Shop, with the results previously described.

The two occupants of the white Pontiac had driven away before the fire bombing and took no active part in it. It was stipulated in the pre-trial order that 'the actual fire bombing and loss was participated in by less than ten (10) persons, but that said persons had previous thereto been at a party in the 1800 block of North Hydraulic Street, Wichita, Sedgwick County, Kansas, attended by more than ten (10) persons.'

The principal underlying issue in this case is whether the facts set forth above establish a submissible case of liability against either the city or Detective Lux. We hold that they do not.

In so holding we proceed on plaintiffs' theory below that this is purely a statutory action, as set forth in the pre-trial order quoted above. That order supersedes the pleadings and controls the subsequent course of the action. K.S.A. 60-216; Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 522 P.2d 401. There was no challenge to that order either below or here, and no effort was made to have it amended. We note that in discussing the court's proposed instruction plaintiffs' counsel was vehement in his assertion that 'There was nothing in my opening statement about negligence. There was nothing in my opening statement about misconduct. There was in my opening statement, statements about what the police failed to do, which would be the same thing, and can be argued under the statutory mob definition that you give herein later.' Hence we are not called upon to determine questions of common law liability for negligence or official misconduct, or to reconsider the issue of governmental immunity.

We turn, then, to the 'statutory mob definition' which controls the city's liability. The pertinent statutes are K.S.A.1974 Supp. 12-203 and 12-204:

'A city shall be liable in damages for injuries to persons or property caused by the action of a mob within the corporate limits of the city if the city police or other proper authorities of the city have not exercised reasonable care or diligence in the prevention or...