#### Long, Appellant, vs. City of Neenah, Respondent.

*February 26*

April *17, 1906.*

*Municipal corporations: Liability for injuries by mob: Notice of threats, etc.: Negligence of person injured.*

*1.*Under secs. 938, 939, Stats. 1898 (giving a right of action against a city for injuries inflicted by a mob, provided the person injured shall have immediately notified the mayor of the city after being apprised of any threat or attempt to injure him by *41any mob), the notice must be given by or on behalf of the person claiming damages; and a notice given by an employer, not on behalf of its employees, of the likelihood of mob violence on account of a strike, does not inure to the benefit of the employees.

.2. The evidence in this case, although it shows that plaintiff and others had been jeered at on the street and called “scabs” by crowds, who also said “we will knock your block off,” etc., is *held*not to show that he had been apprised of any threat or attempt to injure him by the mob which met and assaulted him on his return to defendant city in the nighttime after an absence of two or three days.

'3. Evidence showing, among other things, that plaintiff, a nonunion man, left his place of employment in the nighttime and went to and from the railroad station unaided and unguarded, is *held*not to show that injuries inflicted upon him by a mob were caused by his negligence.

Appeal from a judgment of tbe circuit court for Winne'bago county: Geo. W. BubNell, Circuit Judge.

*Reversed.*

Tbe complaint alleges, in effect, tbat tbis action is brought against tbe city to recover damages sustained by tbe plaintiff wbile a resident of tbe city and in tbe employ of Kimberly & •Clark Company as a workman at tbe Badger Mills, so called, in said city, on tbe morning of July 5, 1904, at said city, by being set upon by a riotous mob, consisting of tbe six persons therein named and other persons unknown to tbe plaintiff; ■that such persons were then’ and there assembled in a violent and tumultuous manner with tbe common purpose to do an unlawful act, to wit, to terrify tbe plaintiff and other persons, and by terror and violence to prevent tbe plaintiff and other persons from aiding in tbe operation of said mills of said company in said city; tbat the plaintiff was then and there by ■such mob beaten, cut,, bruised, and injured, and tbe said injuries were so inflicted upon him by said mob for tbe purpose •of terrorizing, intimidating, and preventing tbe plaintiff and other persons from serving said company in tbe running of said mills; tbat tbe plaintiff tried to escape from said mob •and avoid such injury, but was unable to do so; tbat such *42injuries were so inflicted upon the plaintiff against bis will and without any fault or neglect on his part; that no opportunity was. given to the plaintiff to notify the mayor of the city or the sheriff of the county or any other officer of the-city or county of the threatened injury after he became apprised of the threat or danger thereof; that such attack was made on the plaintiff without notice, and after it was apparent to the plaintiff that such attack was to be made he had no-opportunity to avoid such injuries or to- get aid from any person able or willing to prevent such injuries; that such injuries so inflicted did great bodily harm to the plaintiff and', caused him *great*pain and injury, to his damage in the sum of $2,000. The city answered by way of admissions, denials, and counter allegations. At the close of the testimony on the part of the plaintiff the court granted a nonsuit, and. from the judgment entered thereon the plaintiff appeals.

Por the appellant there were briefs by *Hooper & Hooper,.*and oral argument by *Moses Hooper.*

*J. Mulloy*and *F. G.*Stewart, for the respondent.

Oassoday, C. J.

It apjoears from the undisputed evidence-that the plaintiff left Neenah, where he had been at work for-some time, on Saturday evening, July 2, 1904, and went to-Chicago, and returned therefrom to Neenah a little after 3-o’clock on the morning of Tuesday, July 5, 1904, where he was met at the depot by a riotous mob and by them was beaten, bruised, and pounded cruelly. While the fact is involved in this controversy, yet we are not here called upon to consider the liability or punishment of such offenders. The plaintiff is here seeking to hold the city liable for the damage so inflicted upon him by the mob. It is well settled that at common law a municipal corporation is not liable for damage done by mobs within its limits either to persons or property. 20 Am. & Eng. Ency. of Law (2d ed.) 120(3; 2 Dill. Mun. Corp. (4th ed.) § 959. The liability of the defendant to the-*43plaintiff in tbis action, if any, is purely statutory. Our statute provides, in effect, that “whenever any property . . . shall be destroyed or injured by or in consequence of any mob or riot, the city ... in which such property is situated shall be liable to the owner thereof for the damages- so sustained by him.” And in like manner a remedy in law is thereby “given against such city . . . for any bodily harm or injury so sustained by any person.” Sec. 938, Stats. 1898. But the liability so prescribed is limited by the next section,, which, omitting what is not applicable here, declares that:

> “No person shall be entitled to recover under the provisions of the preceding section when such . . . injury to his . . . person was occasioned or in any manner aided, sanctioned or permitted by him or caused by his negligence, nor-unless he shall have used all reasonable diligence to prevent the same, and shall have immediately notified the mayor of the city . . . after being apprised of any threat or attempt ... to do harm or injury to his person by any such mob or-riot.” 'Sec. 939, Stats. 1898.

The validity of such statutes is not questioned. No recovery can be had unless the right of action is given by the statute, nor without complying with the terms of the statute. It has been held under somewhat similar statutes that, although such statutes were penal in their nature, still they must be liberally construed, because they were also remedial. *Allegheny Co. v. Gibson,*90 Pa. St. 391. Certainly, they must be fairly construed. “Even penal statutes are not to be construed so strictly as to defeat the obvious intention of the legislature.” *State v.*Shove, 96 Wis. 1, 9, 70 N. W. 312, and cases there cited.

The principal ground of defense is that the plaintiff, *“after being apprised*of any threat or attempt ... to do harm or injury to his person by any such mob or riot,”'did not “immediately notify the mayor of the city,” as required by the section quoted. It is claimed on the part of the plaintiff that the written notice given to the mayor by the Kimberly & *44Clark Company about two* weeks before tbe injury complained of, inured to tbe benefit of tbe plaintiff. But as we read tbe statute tbe notice required must be given by or on behalf of tbe person claiming damage. Thus, in New York, under substantially tbe same statute, where tbe property destroyed belonged to several tenants in common, it was held that such of tbe tenants as bad knowledge of tbe threats several days before tbe injury, but failed to* notify tbe sheriff, could not recover, but that such of tbe tenants as “bad no personal knowledge of tbe threats were entitled to recover.” *Loomis v. Oneida Co.*6 Lans. 269. In tbe case at bar it is frankly admitted that tbe plaintiff gave no notice. So the •question is whether be knew facts which required him to give notice. In construing such statute a New York court held that:

> “Tbe statute should be so construed that if a party is informed of a threat and have time to notify tbe sheriff so that be can take all legal means to protect tbe property, then tbe omission to give tbe notice is fatal.” *Schiellein v. Kings Co.*43 Barb. 490.

In a later case in that state it was held that:

> “Tbe provision of tbe act requiring notice to be given to tbe mayor of tbe city or sheriff of tbe county after tbe owner ■of property has been *apprised*that a threat or attempt has been made to destroy or injure tbe same by any mob or riot, necessarily contemplates that a sufficient period of time shall intervene between tbe threat or attempt and tbe execution of it to admit of tbe notice being given.” *Moody v. Niagara Co.*46 Barb. 659.

In a later case in tbe court of appeals in that state it was 'held that such “notice to tbe public officers will not be required where tbe party injured bad no information in respect to which to give tbe proper notice.” *Ely v. Niagara Co.*36 N. Y. 297. In a still later.ease it was “held that tbe fact that tbe original purpose for which tbe crowd bad as•sembled, to wit, to see tbe fire, was a lawful one, did not con*45stitute a defense, as they bad subsequently united in unlawful conduct and wrongfully broken into tbe plaintiffs store ;• tbat be was entitled to recover for tbe goods taken away by tbe mob, as well as for those destroyed upon tbe premises; tbat be was not under tbe circumstances of tbe case bound to notify tbe mayor or tbe sheriff of tbe threatened danger.” *Solomon v.*Kingston, 24 Hun, 562; *S. C.*affirmed, 96 N. Y. 651. From these adjudications, as well as tbe language of tbe statute, tbe plaintiff was only required to notify tbe mayor of any threat or attempt of tbe mob or riot to do him personal barm or injury, after being apprised of tbe same.

From tbe evidence before us it is manifest tbat there was-no opportunity, after tbe plaintiff returned from Chicago on tbe morning of July 5, 1904, and before tbe injury, to notify tbe mayor tbat tbe mob was then present threatening him with personal barm or injury. "Whether there was any threat or attempt by any mob or riot to do tbe plaintiff personal barm or injury before be went to Chicago does not clearly appear from tbe evidence. Tbe plaintiff testified to tbe effect tbat be went to work for tbe company June 13, 1904; tbat be was then told by tbe company tbat there was liable to be a walkout and they wanted new men to fill tbe places; tbat until June 20, 1904, tbe men employed took their meals at tbe Eussell House, a big block away from the Badger Hill where they worked; tbat such employees were all nonunion men; tbat they would go from tbe mill to tbe Eussell House in crowds of four to six; tbat during tbat week there was always a crowd on tbe street, apparently made up of union men and their sympathizers, who would jeer them and call them vile names, such as “scabs,” “we will get you,” “we will knock your block off,” and tbe like; and on one occasion during tbat week two of tbe boys who worked in tbe mill were knocked down, and tbe plaintiff for a moment considered himself in danger; tbat be did not recognize any of tbe mob-at tbe depot as tbe same individuals be bad seen around the-*46Russell House during the week mentioned, but they seemed to be connected with the same enterprise; that from June 20, 1904, to July 2, 1904, when the plaintiff went to Chicago, he and the other nonunion men at work for the company took their meals in the mill. We find no evidence in the record that before the plaintiff went to Chicago he had been “apprised of any threat or attempt ... to do harm or injury to his person by” the “mob or riot” which met him at the depot •on his return from Chicago.

Counsel for the defendant also contends that the injury to the plaintiff was “caused by his negligence” in leaving the mill alone and going to and from the depot unaided or unguarded. But we fail to find any evidence in the record tending to prove, much less conclusively proving, that the injury was caused by his negligence, or that he was chargeable with a failure to exercise “reasonable diligence to prevent the same.” In fact, there is no evidence of misconduct on the part of the plaintiff.

*By the OourL*— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

KerwiN, J., took no part.