Spring Garden Ins. Co. v. Imperial Tobacco Co.

• Decision Date: 10 February 1909
• Citation: 116 S.W. 234,132 Ky. 7
• Parties: SPRING GARDEN INS. CO. v. IMPERIAL TOBACCO CO. OF KENTUCKY.
• Court: Kentucky Court of Appeals

116 S.W. 234

132 Ky. 7

SPRING GARDEN INS. CO. v. IMPERIAL TOBACCO CO. OF KENTUCKY.

Court of Appeals of Kentucky.

February 10, 1909

Appeal from Circuit Court, Caldwell County.

"To be officially reported."

Actions by the Imperial Tobacco Company of Kentucky against the Spring Garden Insurance Company, the Connecticut Fire Insurance Company, the Caledonian Insurance Company, the Hanover Fire Insurance Company, and the Pennsylvania Fire Insurance Company. Judgments for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Flexner & Campbell, Charles H. Shield, and Thomas Bates, for appellants.

Yeaman & Yeaman, for appellee.

CARROLL J.

These several appeals involve the same questions of law. The litigation grows out of the refusal of the appellant insurance companies to pay the amount of fire policies issued to the appellee tobacco company. The refusal of the companies was rested upon the ground that the property insured was destroyed by fire caused by a "riot," and hence they were not liable because of clauses in the policies that exempted them from liability for fire resulting from such cause. The policy issued by each company contains the same conditions and exceptions. They are what is known as the "Standard Fire Insurance Policy of the States of New York, New Jersey, Connecticut, and Rhode Island," and stipulate that the company insures the property of the appellee tobacco company against "all direct loss or damage by fire, except as hereinafter provided." These words appear in large printed letters in the body of the policy and as a part of the insuring clause. In small printed letters in the body of the policy are the exceptions that relieve the company from liability. Among these exceptions and in a separate clause, is the following: "This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority; or by theft; or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire, or when the property is endangered by fire in neighboring premises; or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon." The defense relied upon was presented in answers, to which a general demurrer was sustained; and, declining to plead further the petitions were taken as confessed and judgments entered for the full amount claimed by the insured.

So much of the answers to which a demurrer was sustained as is material to the questions involved reads as follows:

"This defendant further says that said policy of insurance was issued by it to the plaintiff and accepted by the plaintiff as aforesaid, and provides that it does insure the Imperial Tobacco Company of Kentucky for the term of one year from the ___ day of November, 1906, at noon, to the ___ day of November, 1907, against all direct loss or damage by fire, except that said company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war, or commotion or military or usurped power, or by order of any civil authority, and this defendant avers and charges the fact to be that said loss mentioned and set forth in the plaintiff's petition was caused directly or indirectly by invasion, riot, or commotion or usurped power, in violation of the terms and provisions of said policy, and that under the express terms and conditions of said policy the same thereby became and at the time of the bringing of this suit and at all times after said fire occurred was and is wholly null and void.

"This defendant further says that all of the property mentioned and described in said petition, and which is described in and by said policy of insurance, was destroyed and burned by fire on the night of November 30, 1906, or early in the morning of December 1, 1906, by reason of an invasion, riot, and commotion and usurped power within the true intent and meaning of said provision contained in said policy of insurance above set forth, and that said property was destroyed and burned as aforesaid by a large body of men, about 100 or more in number, who invaded the city of Princeton, Ky. on said night of November 30, 1906, or morning of December 1, 1906, and who were armed and disguised at the time of said invasion, and who unlawfully conspired and confederated and banded themselves together for the purpose and with the intention of destroying all the property mentioned and described in the plaintiff's petition, including the three and one story, brick and frame, metal roof building, and its contents, consisting of tobacco in bulk and in packages, and described in the petition, and being the property referred to in the petition as well as a large amount of other property located in said city of Princeton and owned by numerous other parties, and that, in pursuance of said conspiracy, confederation, and unlawful purpose, on the night of November 30, 1906, or morning of December 1, 1906, said large body of men armed and disguised and banded together as aforesaid for the purpose of destroying the property described in plaintiff's petition, as well as a large amount of other property in said city of Princeton, invaded the city of Princeton, Ky. and took forcible possession of the police station, and the police force of said city, and also surrounded and took forcible possession of the fire department of said city of Princeton, Ky. and also surrounded and took forcible possession of the town hall of said city of Princeton, Ky. and of all telegraph and telephone offices in said city of Princeton, and by the numbers and strength of said invaders they overawed and intimidated and terrorized and usurped the power of the civil authorities of said city, and took forcible possession of said civil authorities and of the civil administration of said city, and also of the inhabitants and citizens thereof, and by use of their firearms said mob did hold up, overawe, intimidate, terrorize, and utterly subject and usurp the power of the civil authorities as well as the inhabitants of said city of Princeton to their unlawful control, and, after doing this, proceeded to the property of the plaintiff, as well as to large amount of other property in said city of Princeton, and tore down, dynamited, blew up, shot into, and destroyed and burned the property of said plaintiff, as well as the property of other citizens of said city of Princeton, Ky. all of said acts being committed and commotion being created in an unlawful and riotous manner by said large body of men who invaded said city of Princeton for the purpose of creating said riot and of destroying said property."

Two questions are presented for our consideration: First. Was the fire that produced the loss caused by "riot"? Second. If this be admitted, do the conditions in the policies relieve the companies from liability for loss thus caused.

Taking up these questions in the order named, we will first determine whether or not the fire was caused by "riot," and in considering this question the facts stated in the answers to which demurrers were sustained must be taken as true; so that, accepting these facts as true, do they constitute a "riot" within the meaning of that term as used in the policies? Curiously enough, we have no statute defining or describing a "riot," although it is mentioned in section 1268 of the Kentucky Statutes of 1903 as a punishable misdemeanor; and sections 375 and 381 of the Code of Criminal Practice contain provisions for the dispersement and quelling of riotous assemblies. Nor do we find any decision of this court in which the word has received judicial construction. We must, therefore, look to the common law for a definition of its meaning and a description of the acts that will constitute a riot. In the common-law authorities there is no substantial disagreement concerning the definition of a riot. In 4 Blackstone (Chitty's Ed.) p. 147, we find the following: "A 'riot' is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel, as, if they beat a man, or hunt and kill game in another's park, chase, warren, or liberty, or do any other unlawful act with force and violence, or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner." In 1 Russell on Crimes, p. 265, an old English work of high repute, the author states: "A "riot' is described to be a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful. *** It seems to be agreed that the injury or grievance complained of and intended to be revenged or remedied by a riotous assembly must relate to some private quarrel only, *** or such like matters relating to the interests or dispute of particular persons in no way concerning the public. It seems to be clearly agreed that in every riot there must be some such circumstance, either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people. *** But it is not necessary, in order to constitute this crime, that personal violence should have been committed. *** But the violence and tumult must be in some way premeditated; for if a number of persons being met together at...