Goldman v. Forcier

• Decision Date: 27 July 1942
• Docket Number: Nos. 8459, 8460.,s. 8459, 8460.
• Citation: 27 A.2d 340
• Parties: GOLDMAN v. FORCIER, Treasurer. STEIN v. SAME.
• Court: Rhode Island Supreme Court

27 A.2d 340

GOLDMAN

v. FORCIER, Treasurer.

STEIN

v. SAME.

Nos. 8459, 8460.

Supreme Court of Rhode Island.

July 27, 1942.

Exceptions from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.

Trespass on the case by Morris Goldman and by Benjamin Stein against Wilfred J. Forcier, treasurer, to recover value of property allegedly destroyed or injured during a riot in the city of Woonsocket. Judgments for plaintiffs, and defendant brings exceptions.

Exceptions sustained. Judgments in accordance with opinion.

Edward F. Dwyer and John J. Mee, both of Woonsocket, for plaintiffs.

Morris E. Yaraus, City Solicitor, of Woonsocket, for defendant.

CAPOTOSTO, Justice.

These two actions of trespass on the case were brought under General Laws 1923, chapter 396, sec. 10, now General Laws 1938, chapter 607, § 14, to recover the value of certain property alleged to have been destroyed or injured during a riot, in the city of Woonsocket, on September 13, 1934. The cases were tried together before a justice of the superior court sitting without a jury. He rendered a decision for the plaintiff in each case in the following amounts: $4,718.71 for Goldman and $578.87 for Stein, interest included. The defendant duly excepted to each of these decisions.

Since the statute upon which the causes of action in these cases are based is the same in both G.L.1923 and G.L.1938, we shall refer to the statute as it appears in the latter compilation of our General Laws. General Laws 1938, chap. 607, § 14, hereinafter referred to as § 14, reads: "Whenever any property of the value of $50.00 or more shall be destroyed or be injured to that amount by any persons to the number of 6 or more unlawfully, routously, riotously or tumultuously assembled, the town or city within which said property was situated shall be liable to indemnify the owner thereof to the amount of three-fourths of the value of the property so destroyed or three-fourths of the amount of such injury thereto, to be recovered in an action of the case in any court proper to try the same, provided the owner of such property shall use all reasonable diligence to prevent its destruction or injury by such unlawful assembly and to procure the conviction of the offenders."

The defendant admits that, on September 13, 1934, there was a riot in the city of Woonsocket within the meaning of the statute, and that the plaintiffs have complied with all provisions thereof so as to enable them to bring these actions. The defendant further admits that it is liable, to the extent provided by statute, for the value of plaintiffs' property that was destroyed or injured in the riot, but it strongly contends that it is not liable for the value of property that was stolen from the respective plaintiffs during the rioting.

The evidence shows that the store of Goldman, who dealt in malt, hops and package liquor goods, and the shoe store of the plaintiff Stein were the subject of mob violence. Goldman's proof of damages rests solely on two inventories, one which he claims to have taken on August 31, 1934, and the other on September 14, 1934, the day following the riot. He testified that he was unable to produce any books of account, invoices, sales slips, or other records, including those which he was required by law to keep in connection with his liquor business, as he had lost them in some unknown manner during the time that his case was pending for trial. He further testified that he could not tell what merchandise had been stolen from his store or what had been there destroyed or injured. "You actually saw that some had been taken from the store. A. I wouldn't say some; I would say quite a bit."

The accountant who took both inventories, with the assistance of Goldman and another, testified that he did not know where the "goods went" which were represented by the difference between the two inventories. "I don't know what amount was stolen or lost. I know it was gone that day," meaning September 14, 1934. "Q. In other words, just how much merchandise was stolen, you don't know? A. No, I don't. Q. Your figures would include both damaged merchandise, broken merchandise, or stolen merchandise? A. All merchandise that wasn't there."

The plaintiff Stein testified that his loss consisted in the disappearance from his store of 199 pairs of shoes. "Q. Those one hundred ninety-nine pairs were stolen? A. Yes; they were stolen. * * * Q. So the rioters had stolen one hundred ninety-nine pairs? A. Yes." This plaintiff also produced no books or other records to support his claim, testifying that he kept no books and that he destroyed all other records when he discontinued business in 1935.

The parties look at § 14 from entirely different viewpoints. The plaintiffs argue that it is a remedial statute and therefore should be liberally construed. The defendant, on the other hand, argues that it should be strictly construed as it is a penal statute in derogation of the common law. In our judgment resort to either of these views as to the general character of the statute is confusing. Whether the statute is remedial or penal, or both, it should be construed fairly, according to its terms, to accomplish the purpose for which it was intended.

It is the general duty of the state to secure to its citizens the peaceful enjoyment of property and to protect it against destruction or injury by riots. The duties of local governmental administration are delegated, in large measure, to the municipalities, which stand in the place of the state in enforcing the law and in protecting property within their respective limits. In the absence of express statutory provision, it is well settled that a municipality, which is created by the state and acts as its agent in the discharge of governmental functions, is not liable for the destruction of or injury to property resulting from riots.

The state, however, in the exercise of its police power for the public safety and general welfare, may impose upon its municipalities liability for property within their respective limits that is destroyed or injured by riots. A statute that subjects municipalities to such liability is, in effect, a police regulation for the better government of the state through its cities and towns. Its primary object is to make scious through apprehension of the penalty the citizens of the municipalities law-con-that they collectively would have to pay by way of compensation, through the municipality, to an individual whose property was destroyed or injured during a riot.

We deem § 14 legislation of that character, attention being called to the fact that before a plaintiff can recover under the section he "shall use all reasonable diligence * * * to procure the conviction of the offenders." (Italics ours.)

It is true that through this kind of legislation a benefit accrues to the individual whose property is so destroyed or injured, but the real purpose of the statute nevertheless is to encourage the proper observance of law and order by the community in general. As far as the individual is concerned, the right that he acquires under such a statute is a permissive right, or privilege, which cannot extend beyond the fair meaning of the language of the statute. In Goldman v. Quinn, 60 R.I. 335 198 A. 549, where the constitutionality of the statute now under consideration was questioned, this court, speaking of the right accruing to an individual whose property was destroyed or injured during a riot, at page 338 of 60 R.I., 198 A. at page 550 of that opinion, says: "By the exercise of its sovereign power, the state has seen fit to confer a privilege on such a person and to permit its municipalities to be sued and to require them to respond in damages for injuries caused to property beyond a certain value. What it thus freely gives, it may as freely take away, or it may enlarge the privilege or restrict it further."

Section 14 should be construed in the light of the rule that the language of a statute is to be given its ordinary and usual meaning, unless it reasonably appears that the language has been used by the legislature in a special sense. In our opinion, this section is drawn in the simple language of common speech. Upon compliance with certain conditions, the statute makes the municipality liable for the value of three-fourths of "property" that is "destroyed" or "injured" by...