Shake v. Bd. of Com'rs of Sullivan Cnty., s. 26369-26373.

• Decision Date: 10 April 1936
• Docket Number: Nos. 26369-26373.,s. 26369-26373.
• Parties: SHAKE v. BOARD OF COM'RS OF SULLIVAN COUNTY, and four other cases.
• Court: Indiana Supreme Court

210 Ind. 61

1 N.E.2d 132

SHAKE

v.BOARD OF COM'RS OF SULLIVAN COUNTY, and four other cases.

Nos. 26369-26373.

Supreme Court of Indiana.

April 10, 1936.

Actions by Benjamin W. W. Shake, Irvin R. Coffey, Thomas C. Reed, Millard Spurling, and Harry Brodie against the Board of Commissioners of Sullivan County. Judgments for defendant, and plaintiffs appeal.

Affirmed.

TREANOR, J., dissenting.Appeal from Sullivan Circuit Court; Martin S. Pigg, Judge.

John Hickey and Thomas F. O'Mara, both of Terre Haute, for appellants.

J. Hurley Drake, of Sullivan, for appellee.

FANSLER, Judge.

In each case under consideration appellant sued for personal injuries resulting from an assault and battery committed upon him by five or more persons becasue of his having entered into the employment of a certain coal mining company during a strike. It is the theory of the appellants that the county is liable for injuries received under such circumstances, under chapter 85 of the Acts of 1931, p. 245, since repealed (Laws 1932, Sp.Sess. c. 69).

Demurrers to the complaints were sustained, and this ruling is the basis of the error assigned.

There was no right of action against municipalities for injury resulting from lynching or other mob violence at common law, and therefore recovery, if at all, must be under the statute. Statutes creating rights not given by the common law are strictly construed, and one seeking relief thereunder must bring himself clearly within the terms of the statute. The statute penalizes the municipality for the unlawful conduct of individuals within its borders, and the reasons which require that statutes providing for penalties and forfeitures must be strictly construed are applicable.

The title of the act relied upon is as follows: ‘An Act concerning lynching, providing for the removal and reinstatement of county sheriffs having the custody of persons lynched, authorizing the maintenance of actions for damages sustained as the result thereof, and prescribing penalties for inflicting damage or injury on others in certain cases without authority of law.’ Section 1 provides that, if any person or prisoner shall be taken from the sheriff or the deputy sheriff having such person in custody, and shall be lynched, the Governor shall declare the office suspended. Section 2 provides for the reinstatement of the sheriff upon a showing that he did all in his power to protect the life of the prisoner and that he performed all of the duties required of him for the protection of the prisoner. Section 4 provides that the surviving dependents of a person who shall suffer death by lynching may recover damages from the county where the lynching occurred. Sections 5 and 7 are as follows:

‘Sec. 5. Any person who is assaulted and lynched by a mob and who is injured but does not suffer death may have an action against the county where such injury occurs and may recover a determinate sum not to exceed ten thousand dollars.’

‘Sec. 7. That any collection of individuals, five or more in number, assembled for the unlawful purpose of offering violence to the person or property of any one supposed to have been guilty of a violation of the law, or for the purpose of exercising correctional powers or regulative powers over any person or persons by violence, and without lawful authority, shall be regarded and designated by a ‘mob’ or ‘riotous assemblage.”

Chapter 169 of the Acts of 1905, p. 584, which is still in force, defines a mob and the crime or lynching as follows: ‘Any number of persons assembled for any unlawful purpose and intending to injure any person by violence and without authority of law shall be regarded as a mob, and any act of violence exercised by such mob upon the body of any person shall, when such act results in the death of the injured person, constitute the crime of lynching.’ Section 440, p. 685.

Under the act of 1905, a group of persons intending injury by violence is a mob, regardless of the purpose or motive prompting the violence. But, by section 7 of the law under consideration, a mob is limited to a group of persons offering violence because of a supposed violation of the law or for the purpose of exercising correctional or regulative powers. Recovery in these cases is limited to injury by a mob as defined in section 7.

The complaints recite that certain individuals, more than five in number, assembled for the unlawful purpose of offering violence to the person of the plaintiffs and for the purpose of exercising correctional powers by violence, without lawful authority, over and upon the person of the plaintiffs, and that the assemblage of persons was a mob and riotous assemblage. But these are mere conclusions, and we must look to the allegations of fact to determine whether or not the plaintiffs come within the provisions of the statute. The facts alleged show that recovery is sought for injuries resulting from an assault and battery by a collection of persons, more than five...