Walter v. Northern Ins. Co. of New York

• Decision Date: 08 February 1939
• Docket Number: No. 24725.,24725.
• Citation: 18 N.E.2d 906,370 Ill. 283
• Parties: WALTER et al. v. NORTHERN INS. CO. OF NEW YORK.
• Court: Illinois Supreme Court

370 Ill. 283

18 N.E.2d 906

WALTER et al.

v.NORTHERN INS. CO. OF NEW YORK.

No. 24725.

Supreme Court of Illinois.

Dec. 15, 1938.

Rehearing Denied Feb. 8, 1939.

Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Madison County; Dick H. Mudge, Judge.

Action by Charles R. Walter and others against the Northern Insurance Company of New York on a property insurance policy. From a judgment of the Appellate Court, 294 Ill.App. 133, 13 N.E.2d 660, reversing a judgment for defendant notwithstanding verdict for the plaintiffs, defendant appeals.

Judgment of the Appellate Court reversed and judgment of the circuit court affirmed.Warnock, Williamson & Burroughs, of Edwardsville, for appellant.

Jacoby & Daly, of Alton, for appellees.

STONE, Justice.

Appellees sued appellant on a property-insurance policy in the circuit court of Madison county. The suit resulted in favor of the appellant, and, on appeal to the Appellate Court for the Fourth District, that court reversed the judgment of the circuit court and entered judgment for appellees in the sum of $1605. Appellees' cause of action is based on a clause in the policy, designated in this record a ‘riot clause,’ characterized in the contract as a supplemental contract, and covered damage by ‘explosion, riot, aircraft and self-propelled vehicles.’ The policy also provided that the term ‘riot,’ whenever used therein, should include ‘direct loss from pillage and looting when such pillage and looting occurs during and at the immediate place of a riot; riot attending a strike, insurrection and/or civil commotion.’

The facts upon which appellees base their suit are not controverted and are as follows: Sometime during the night of January 3, 1936, the building of appellees, which was undergoing alterations, enlargement and repair, was entered and a large amount of creosote was smeared on the walls, ceiling, windows and floors. The amount of the damage is not disputed. The repairs and enlargement of the building had progressed to a point where the house was in charge of painters. About 5:00 o'clock P. M., on January 3, the painter, on leaving, locked all the doors and all the windows save one, which opened onto the roof of a porch at the rear of the house. This he could not close completely. On returning the next morning he found the doors and windows locked as he left them. He also found a ladder leaning against the roof of the porch near the window which had been left a little way open. Finger-prints and foot tracks were found. The foot tracks were of different sizes and some were made by overshoes.

A neighbor testified that he lived the first house east of appellees' house and near thereto; that he and his wife occupied a bedroom in the rear of his house from the window of which he could look over the rear of appellees' house; that from the time he came home in the evening of January 3 until he left the next morning to go to work, his attention was not called to anything unusual about appellees' premises and he heard no unusual noise or disturbances and saw no one about appellees' premises.

The question, here, is whether this damage was the result of a riot. Counsel for appellees say that since the Criminal Code has defined ‘riot,’ acts constituting that offense under the criminal law constitute the basis of appellant's liability under their contract of insurance against riot. Appellant, on the other hand, says (1) that the statute does not define riot, and (2) that riot, as used in the contract, should be defined in its ordinary sense; that here the damage was done stealthily and in a secretive manner, with an evidence attempt to prevent noise or detection, and that to properly construe the word ‘riot,’ as used in the policy, the force or violence required to constitute such a riot is not merely the manual exertion necessary to accomplish the unlawful act, but includes resistance, or intent to resist constituted authority, or to overcome the protests of the owner of the property.

Section 249 of the Criminal Code (Ill.Rev.Stat.1937, chap. 38, § 504, p. 1165) provides as follows: ‘RIOT.] If two or more persons actually do an unlawful act, with force or violence, against the person or property of another, with or without a common cause of quarrel, or even do a lawful act in a violent or tumultuous manner, the persons so offending shall be deemed guilty of a riot, and shall severally be fined not exceeding $200, or confined in the county jail not exceeding six months.’ Thus the statute defines riot, and since the clause in the policy on which this action is based, insures against a wrongful act, appellant is bound by the definition of such wrongful act in the statute against it.

This brings us then to a construction of the statute concerning riot. It is a cardinal rule of construction that effort shall be made to give effect to the intention of the legislature. Fowler v. Johnston City & Big Muddy Coal & Mining Co., 292 Ill. 440, 127 N.E. 31;Cohen v. Cohen, 287 Ill. 269, 122 N.E. 543;Smith v. County of Logan, 284 Ill. 163, 119 N.E. 932;Cummings v. People, 211 Ill. 392, 71 N.E. 1031. By legislative enactment, this State, in 1819, adopted the common law of England and most of the acts of Parliament passed in aid thereof prior to the fourth year of James I, in so far as that law was applicable and of a general nature. The frequently quoted definition of riot at common law is that given by Hawkins in his Pleas to the Crown and in Greenleaf on Evidence. Hawkins' definition is as follows: ‘A tumultuous disturbance of the peace by three or more persons assembling together of their own authority, with an intent mutually to assist one another against any one who shall oppose them in the execution of some enterprise of a private nature, and afterward actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act itself was lawful or unlawful.’ Greenleaf, in his work on evidence, says of riot: ‘It is necessary that there be three or more persons tumultuously assembled of their own authority with intent mutually to assist one another against all who shall oppose them in the doing either of an unlawful act of a private nature or of a lawful act in a violent and tumultuous manner.’ Greenleaf on Evidence, 16th ed., sec. 216. By the revision of 1827, the legislature, by section 114 of an act covering ‘Offenses against the public peace and tranquility,’ amended division 10 of the criminal law, as it theretofore existed, pertaining to riot, as follows: ‘If two or more persons actually do an unlawful act with force or violence against the person or property of another either with or without a common cause of quarrel, or even do a lawful act in a violent and tumultuous manner, the persons so offending shall be deemed guilty of a riot and on conviction shall severally be fined not exceeding $200, or imprisoned not exceeding six months.’ Rev.Laws of 1827, p. 146. It will be noted that this is the present language of the act.

Under the revision in 1845 the legislature re-enacted division 10 of ‘Offenses against the public peace and tranquility’ as it was enacted in 1827, except that the word ‘either’ was omitted between the words ‘another’ and ‘with’ in the second line of the act. (Rev.Stat. 1845, p. 171, sec. 117.) In the revision of statutes in 1874 (Rev.Stat. 1874, chap. 38, sec. 249, p. 390) provisions were enacted providing for the punishment of racing, rout, riot, affray, unlawful assembly, and the like. Section 249 of the act pertaining to riot is verbatim the language of the revised statute of 1845 with the exception that the words ‘on conviction’ between ‘and’ and ‘shall’ in next to the last line of section 117 were eliminated. No change has been made in that section since 1874. For over a century the act has required that to constitute riot two or more persons must ‘with force or violence’ actually do an unlawful act against the person or property of another, or a lawful act in a violent or tumultuous manner.

The question comes, then, on the construction of the terms ‘force’ or ‘violence.’ Do they mean merely the manual force necessary to accomplish the act, or do they mean something more? There is no doubt that under the common law ‘force or violence’ meant a concerted intent of...