holding opinion testimony from non-expert farmers that erection of dam caused flooding was not im proper
How later courts described this case
- holding opinion testimony from non-expert farmers that erection of dam caused flooding was not im proper
- "When the result in part is ascribable to the participation of man, either through active intervention or neglect or failure to act, ‘the whole occurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the acts of God.’ ”
Written by the judges who cited it.
The opinion
ON Motion eob Rehearing.
HYDE, J.
In its motion for rehearing, defendant insists that even if the 1943 flooding of plaintiffs’ building was not entirely due to an Act of God so as to preclude plaintiffs from recovering anything, nevertheless, plaintiffs must prove how much of their damage was caused by defendant’s obstructioin of the stream; and that since plaintiffs did not do SO' it is at least entitled to a new trial.
Defendant says “if a natural force (whether anticipatable or not) contributed with the obstruction of the stream by a defendant to cause the overflow of the plaintiff’s property, the damages are apportioned and the defendant is required to pay only that part-of the damage attributable to Ms wrongful act.”
It is true where part of flood damage would have been caused by an anticipatable overflow, without any-obstruction, one who-obstructed the stream would not be liable for such part but only for the additional damages caused by his obstruction, as the cases cited by defendant hold. [Sherwood v. St. Louis Southwestern Ry. Co. (Mo. App.) 187 S. W. 260 ; Brown v. C. B.
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Q. R. Co., 195 Fed. 1007 ; Standley v. A. T. & S. F. R. Co., 121 Mo. App 537, 97 S. W. 244 ; McAdams v. Davis, 200 Ia. 204 , 202 N. W. 515 ; Pfannebecker v. C. R. I. & P. R. Co., 226 N. W. 161 .] However, in this case no an-tieipatable flood would have touched plaintiffs’ building; none ever had been that high at this place. Therefore, if defendant’s obstruction caused the excess, or only the last four feet of the excess, then defendant’s act caused .all the damage in this ease. What we have held is that plaintiffs had substantial evidence to so show.
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We pointed out that the instructions herein did apply the rule for which defendant contended, namely; that defendant was liable only if the jury found plaintiffs’ property would not have been flooded except for defendant’s dam. The jury was thus required to find that defendant’s dam caused all of plaintiffs’ damage; and this left no apportionment issue in the case.
The motion for rehearing is overruled.
All concur.