Opinion
No. 5511.
Argued December 6, 1966.
Decided March 7, 1967.
1. The statute rendering towns liable for property damage resulting from mobs and riots (RSA 31:53, 54) is not solely a penal statute, and its thrust is compensatory, preventive and remedial; and the statute is entitled to a reasonable and not a rigid or strict construction.
2. In an action under such statute by the plaintiff who was engaged as a police officer by the defendant town to help suppress an anticipated riot, for damage sustained to his motor vehicle as a result of the riot it was held that the evidence warranted the finding that plaintiff's conduct in parking his vehicle where he was instructed to by the town's agent did not constitute "improper conduct" which would bar him from recovery under the statute (RSA 31:54).
3. Nor was he precluded from recovery in such case for failure to give notice as required by the statute (RSA 31:54) to "the mayor, one of the selectmen, or a justice of the peace of the town" of an attempt to destroy his property where such notice under the circumstances of the case would have been useless to secure protection against the acts of the mob.
The plaintiff, a resident of Concord, was hired as a police officer by the defendant to assist the town of Hampton police department in anticipation of possible disturbances or riot over the 1964 Labor Day weekend. The plaintiff was instructed by the defendant's police officer in charge to park his vehicle in the municipal parking lot because motor vehicles parked in the police station parking lot had been damaged in a disturbance in the previous year. He did not inspect his vehicle from the time that he parked it on Friday, September 4, 1964, until Monday morning, September 7. During the weekend his working period was eleven, seventeen and eighteen hours respectively for Friday, Saturday and Sunday.
The Court made the following finding: "The plaintiff's conduct in parking his vehicle as he did during the period of his employment was in keeping with the express instructions of his employer, the defendant Town. This conduct was consistent with and arose our of his employment with the defendant, and as such was reasonable and proper under all of the circumstances." The plaintiff recovered a verdict of $125 for property damages to his vehicle under the provisions of the riot statute RSA 31:53, 54. The defendant's exceptions to the denial of its motion for a nonsuit and the denial of its motion to set aside the verdict were reserved and transferred by Dunfey, J.
Wiggin, Nourie, Sundeen, Nassikas Pingree and William S. Orcutt (Mr. Orcutt orally), for the plaintiff.
Perkins, Holland Donovan and William H. M. Beckett (Mr. Beckett orally), for the defendant.
At common law there is no municipal liability for damage to personal property caused by mobs and rioters in the absence of statute abrogating governmental immunity. Chadbourne v. Newcastle, 48 N.H. 196, 199; Goldman v. Forcier, 68 R.I. 291. See Hermer v. Dover, 106 N.H. 534; Gossler v. Manchester, 107 N.H. 310. As early as 1854 New Hampshire passed "an act making cities and towns liable for damages caused by mobs or riots." Laws 1854, c. 1519. The law in its present form provides for the town's liability in the following language: RSA " 31:53 TOWN'S LIABILITY. If persons, unlawfully, riotously and tumultuously assembled, shall injure or destroy any property, real or personal, the town within the limits of which such property is situate shall be liable to the owner thereof for the damages suffered by him, in an action on the case." The statute is limited in its application by RSA 31:54, which reads as follows: "- LIMITATION. No person shall be entitled to the benefits of the foregoing provision if it shall appear that the destruction of his property was caused by his illegal or improper conduct, nor unless it be made to appear that he, upon knowledge had of the intention or attempt to destroy his property, or to collect a mob for such purpose, sufficient time intervening, gave notice thereof to the mayor, one of the selectmen, or a justice of the peace of the town in which the property was situate." The statute further provides that a town which has paid any sum of money may recover against the person or persons who have injured or destroyed the property (RSA 31:55) but this section of the statute is not involved in this case. Hanover v. Dewey, 58 N.H. 485.
It is not seriously disputed that the plaintiff's property was damaged and it is conceded that the plaintiff's conduct was not illegal, but the defendant maintains that the plaintiff's conduct was improper within the meaning of RSA 31:54. Specifically it is argued that the plaintiff should not have parked his car where he did because of the danger of damage to it and that he should have periodically inspected it. What constitutes improper conduct cannot be considered in a vacuum and the plaintiff's actions must be viewed in the light of all the circumstances of the case. The riot that was anticipated and in fact occurred was of substantial magnitude. State v. Mower, 107 N.H. 481; State v. Andresen, 108 N.H. 9. The plaintiff parked his motor vehicle where he was instructed to do so by the defendant's agent and during his long working hours would not be normally expected to make periodic checks of his vehicle or to question the propriety of his employer's instructions. The Court's finding that the plaintiff's conduct "was reasonable and proper under all of the circumstances" is sustainable on this record. Consequently the plaintiff's action is not barred under RSA 31:54 on the ground that the damage to his property was caused by his "improper conduct." Underhill v. Manchester, 45 N.H. 214; Palmer v. Concord, 48 N.H. 211.
The statutes which exist in several states imposing liability on municipalities for damage caused by rioters and mobs vary widely in scope and content. Civil Disturbances and Municipal Law, 28 Nimlo Municipal Law Rev. pp. 516-520 (1965); 50 Minn. L. Rev. 271, 289 (1965). Consequently it is not surprising that judicial decisions construing these statutes do not constitute a homogeneous segment of the law. Annots. 13 A.L.R. 755; 23 A.L.R. 297; 44 A.L.R. 1137; 52 A.L.R. 562. The New Hampshire statute is not solely a penal statute and its thrust is compensatory, preventive and remedial. Underhill v. Manchester, 45 H.H. 214. Such a statute is entitled to a reasonable and not a rigid or strict construction. Ely v. Niagara County, 36 N.Y. 297; Note, Liability of the Municipality for Mob Violence, 6 Fordham L. Rev. 270, 279-280 (1937); Note, Communal Liability for Mob Violence, 49 Harv. L. Rev. 1362, 1366-1367 (1936).
RSA 31:54 provides there can be no recovery by the plaintiff "unless it be made to appear that he, upon knowledge had of the intention or attempt to destroy his property, or to collect a mob for such purpose, sufficient time intervening, gave notice thereof . . . to one of the selectmen, or a justice of the peace of the town in which the property was situate." No notice was given in this case by the plaintiff and it is contended that the plaintiff's action should be dismissed for that reason. The Trial Court found that although the plaintiff had knowledge as to the possibility of a riot he had no knowledge of any intention or attempt to destroy or damage his property. The Court further found that the plaintiff's primary obligations and duties during his tour of duty were such "that there was not sufficient time offered him as a normal condition of his employment to notify the appropriate officials of the defendant town to the effect that his property was in danger of being destroyed."
This raises the question whether the failure to give statutory notice is fatal to the plaintiff's claim. In the circumstances of this case we agree with the Trial Court that notice was not a prerequisite to recovery. Feinstein v. New York, 157 Misc. 157, 283 N.Y. Supp. 335. As the court said in Solomon v. Kingston, 24 Hun. 562, 565, aff'd 96 N.Y. 651: "When the crowd became a riot, there was no time to give notice." Note, Liability of the Municipality for Mob Violence, 6 Fordham L. Rev. 270, 280; Note, Communal Liability for Mob Violence, 49 Harv. L. Rev. 1362, 1366-1367 (1936); 2 Antieau, Municipal Corporation Law, s. 12.06, p. 133 (1963). "The object of notice in such cases is to secure protection against the acts of the mob, and where notice would be useless for that purpose, one whose property is injured will not be deprived of his right against the municipal corporation for damages for failing to give notice." 18 McQuillin, Municipal Corporations (3d ed. rev. 1963) s. 53.149.
Exceptions overruled; judgment on the verdict.
BLANDIN, J., sat at argument but took no part in the decision; the others concurred.