dissenting:
As I understand the testimony in this case, it shows clearly that the two police officers of the city of Danville, who set the fire in question, did this for the purpose of capturing, dead or alive, the fugitive from justice, who was resisting arrest, had just a few minutes before killed one of the officers attempting his arrest and seriously wounded others, and was even then firing at every opportunity with murderous intent upon all who approached him; that they would have set the fire as they did if there had been no assembly of people whatsoever, but only the other officers outside of the building; that this action in setting the fire was not actuated by or in concert with the intent or action of such assembly of people, but wholly independent thereof; that these two acted on their own personal initiative as officers, or at least not under or because of any order or direction of the mayor, or other civil authority; that the evidence shows that it cannot be claimed by the insurance company that any order to set the fire came from any other than two sources, namely, from the Commonwealth’s attorney, as speaking for the mayor and from the mayor. The weight of the evidence is overwhelming in exclusion of the hypothesis that the order of the Commonwealth’s attorney caused the fire to be set out. And as to the order of the mayor, if he gave any order or direction for firing the building he did not give it to the officers who set the fire; and it was not communicated to them as *230coming from the mayor, as they expressly testify. Hence, as I think, the jury were warranted in finding, as they did in effect by their verdict, that the conduct of these two officers in setting the fire was not influenced in any way by such order or direction as coming from the mayor. Therefore, as I think, so far as this case is concerned, it must be considered as if no such order or direction was ever given.
The clause in the policy on which the insurance company relies to release it from liability in this case, so far as material, is as follows:
“This company shall not be liable for loss caused directly or indirectly by * * riot * * or by order of any civil authority.”
The riot referred to is the common law offense of riot. To say the least on the subject, it is a matter of much doubt whether the action of the assembly of the people aforesaid constituted a riot. See 1 Bishop’s New Cr. Law (8th ed.), sec. 534; 2 Idem, sec. 1143; note to 94 Am. Dec. 136-7.
As said in 1 Bishop’s New Cr. Law, supra, giving Blackstone’s definition of the offense: “An unlawful assembly is the congregation of three or more persons to do some unlawful act; ‘as, to pull down enclosures, to destroy a warren, or the game therein;’ they parting ‘without doing it, or making any motion towards it.’ If, instead of their separating without action, they accomplished some object to the terror of the people, their offense becomes a riot.”
As said in 2 Bish. New Cr. Law, supra: “Kiot is such disorderly conduct in three or more persons, actually .accomplishing an object, as is calculated to terrify others,” —citing Hawkins, P. C., Coke’s Inst., and other authorities.
From the authorities on the subject there' seem to be two features which are essential to constitute a riot: (1) Either that the assembly of three or more persons must be for an unlawful purpose, or (2) that the action of the assembly *231must be in a manner which is so disorderly as to be calculated to terrify others — the terror arising from the disorder of the conduct. Neither of these features characterized the assembly of the people involved in the instant case. They assembled for a lawful purpose, namely,-to capture the fugitive from justice, dead or alive. They acted when assembled in an orderly and not in a disorderly manner and their manner of action did not in fact, nor was it calculated to, terrify others.
A fortiori the conduct of the two police officers aforesaid did not constitute a riot.
If the insurance company wished to exclude its liability in a case such as that before us-of a fire set out by ministerial officers in order to effect the capture of a fugitive from justice, suitable language to cover such an exception' from liability should have been used in the policy of - -insurance. While the courts will give a fair and reasonable construction to insurance contracts, as to other contracts, still, as is well settled, the form of insurance contracts being chosen by the insurance companies themselves, they are to be strongly construed against them where the meaning of the language is in any doubt; and, as these companies do the business for compensation, the meaning of words relied on to exempt them from liability, after they have collected the compensation, should be plainly to that effect before the courts should give that effect to the words of the contract. And I do not think that it is plain that the words of the exception clause of the policy aforesaid with reference to “loss caused directly or indirectly by * * riot,” cover the case of a fire set out as was the fire in the instant cáse.
In the cases of Lycoming Ins. Co. v. Schwenk, 95 Pa. 89, 40 Am. Rep. 629; Luckett, etc., Tobacco Co. v. Globe Ins. Co. (C. C.), 171 Fed. 147, and Blakeman v. Wichita, 93 Kan. 444, 144 Pac. 816, L. R. A. 1915C, 578, Anno. Cas. 1916D, *232188, cited and relied on for the insurance company, the action of the assembly of people was unquestionably unlawful at common law. In State v. Brown, 69 Ind. 95, 35 Am. Rep. 210, and cited and relied on for the insurance company, the action of the assembly of people was in violation of a statute.
As to the fire being set out “by order of any civil- authority.” Instruction No. 6 given for the defendant submitted that question of fact to the jury in so far as any order of the mayor is concerned. Not being excepted to, that instruction is the law of the case, even if erroneous. R. & D. R. Co. v. Medley, 75 Va. 499. The jury by their verdict, in accordance with this instruction and not in opposition tó it, found against the insurance company on this issue of fact. As aforesaid, the evidence, as I think, was clearly in accord with this finding, so that the verdict should not be disturbed. However, had the verdict in such case been in opposition to the instruction, under the doctrine of the. Medley Case just cited, it should not be disturbed.