Anderson v. Rucker Bros.

• Decision Date: 21 July 1919
• Docket Number: 15285.
• Citation: 183 P. 70,107 Wash. 595
• Court: Washington Supreme Court
• Parties: ANDERSON v. RUCKER BROS.

183 P. 70

107 Wash. 595

ANDERSON v. RUCKER BROS.

No. 15285.

Supreme Court of Washington

July 21, 1919

Department 2.

Appeal from Superior Court, Snohomish County; W. H. Pemberton Judge.

Action by Charles A. Anderson against Rucker Bros. Judgment for defendant, and plaintiff appeals. Affirmed.

Hathaway Beebe & Hathaway and J. Y. Kennedy, all of Everett, for appellant.

Coleman & Fogarty and W. P. Bell, all of Everett, for respondent.

BRIDGES J.

Suit for damages caused by overflow.

The respondent was engaged in the logging and lumbering business. To assist it in its operations, a number of years prior to March, 1916, it built a dam near its works for the purpose of creating a backwater pond. In order to do this it dug a ditch from Lake Hanson creek to Worthy creek, in Snohomish county and dug another ditch from Worthy creek to its dam. The purpose of these ditches was to divert a part or all of the water of these two creeks to its dam for the purpose of creating the pond. The pond thus created covered from 5 to 15 acres of land and was from 3 to 6 feet in depth. The appellant owned a farm about three-quarters of a mile below therespondent's pond. The complaint alleged that during the month of March, 1916, through the carelessness and negligence of the respondent in constructing the dam, and in failing to properly maintain and keep the same in repair, and because it had become old and insufficient, the dam and the gates thereof gove way and released large quantities of water stored thereby, which waters were flooded over the appellant's land, causing damage thereto for which he sought recovery. The case was tried by a jury, which returned a verdict in favor of respondent. Judgment was entered on this verdict, and the appeal is from that judgment.

1. At the trial the appellant offered evidence tending to prove that the flood waters caused by the breaking of the dam had deposited on the appellant's land sand and gravel. The trial court sustained objections to this testimony on the ground that it was not within the pleadings. The complaint very particularly mentioned the features of damage. It alleged that----

'The top soil of plaintiff's premises was eroded and washed out, to the plaintiff's damage in the sum of $960; a certain creek running through the plaintiff's premises was filled up with stumps and other débris for a distance of about 160 rods, to the plaintiff's damage in the sum of $350; two bridges were washed out, to the plaintiff's damage in the sum of $25; 10 rods of puncheon were washed out, to the plaintiff's damage in the sum of $25, together with about 100 feet of fence, to the plaintiff's damage in the sum of $20.'

It will thus be seen that, although the complaint very specifically alleges the various items of damage, it wholly fails to refer to any deposit of sand or gravel on the land. A bill of particulars could not have more definitely given the various items for which recovery was sought, and where there is a bill of particulars proof will be restricted to the matters therein set out. Powers v. Washington Portland Cement Co., 79 Wash. 1, 139 P. 615. In the case of Eckhart v. Peterson, 94 Wash. 379, 162 P. 557, this court held that where the complaint sets out the specific items of damage the plaintiff will not be permitted, over objection, to prove other items. Horton v. Seattle, 53 Wash. 316, 101 P. 1091.

If the appellant had asked to have his complaint amended so as to include this item of damage, it would have been the duty of the court to have granted the permission, unless it appeared that the respondent would have been misled, taken by suprise, or injured thereby. But appellant did not ask the amendment. Clearly, the offered proof was not within the pleadings, and the court did not err in its ruling.

2. The appellant next complains of certain instructions given by the court to the jury on the duty of the respondent in the construction and maintenance of the dam. The instructions complained of, the wording of which we will presently notice, the appellant claims did not impose upon the respondent a proper or sufficiently high degree of care.

A few of the earlier cases seem to have held that one creating a pond of water by means of a dam does so at his own peril, and can defend against a claim for damages because of flooding only on the ground that the damage was caused by an act of God. Fletcher v. Rylands, L. R. 1 Exch. 265; Defiance Water Co. v. Olinger, 54 Ohio St. 532, 44 N.E. 238, 32 L. R. A. 736. But the more recent and, unquestionably, the greater weight of authority holds to a less strict and, we believe, a much more just rule of liability, and one which, while properly protecting the rights of others, encourages business development. That rule is that one who, by means of a dam, impounds the water of a stream, is required to exercise such reasonable care and caution in the construction, maintenance, and operation of the dam as a reasonably careful and prudent man, who was acquainted with the nature and habits of the stream, the features of the surrounding country, the snow and rain falls, and other conditions likely to cause freshets, would exercise under like circumstances. This rule would cover the stream not only in its ordinary and usual condition as to water, but also when in such unusual and extraordinary flood and freshet as such careful and prudent man would reasonably expect; but the dam owner would not be negligent in failing to provide against unprecedented floods or freshets or act of God. Maplewood Farm Co. v. Seattle, 88 Wash. 634, 153 P. 1061; Dahlgren v. Chicago, Milwaukee & St. Paul R. Co., 85 Wash. 395, 148 P. 567; Kuhnis v. Lewis River Boom & Logging Co., 51 Wash. 196, 98 P. 655; 40 Cyc. 683; 13 Am. & Eng. Ency. Law, 688; 3 Farnham, Waters, p. 2798; Columbus & W. R. Co. v. Bridges, 86 Ala. 448, 5 So. 864, 11 Am. St. Rep. 58; Todd v. Cochell, 17 Cal. 98.

Let us see if the court's instructions, taken as a whole, will measure up to these requirements.

In its instruction No. 5, the court instructed the jury that----

'If the defendant used ordinary care in constructing and maintaining said dam, that it is not liable, and your verdict must be for the defendant. I further instruct you that ordinary care means such care as ordinarily prudent men would exercise under like conditions, when the risk is their own.'

The trial court's instruction No. 6 was to the effect that----

'The defendant would be required to use 'ordinary care, that is, that degree of care which an ordinarily prudent person would use under the same or similar circumstances, and, under this rule, the dam must be sufficient to withstand not only the usual and ordinary freshets, but must also be sufficient to withstand such extraordinary freshets as an ordinarily prudent person would reasonably expect to occur. If you find from the evidence that there was an unusually large fall of snow in January and February, 1916, and that snow melted away very rapidly in March and caused unusually high freshets, such that an ordinarily prudent person, in the construction and maintenance of the dam in question, would not reasonably have expected to occur, and caused the damage to plaintiff, if you find there was any damage, then in that event the plaintiff cannot recover, and your verdict must be for the defendant.'

It has been held time and again that one maintaining a dam of this character is bound to use only reasonable care and prudence. The case of Maplewood Farm Co. v. Seattle, supra, was very similar to the case at bar. The court said:

'In the instruction defining negligence, the degree of care which the city was held to in building the superstructure was that of reasonable and ordinary care. The appellant requested an instruction which imposed upon the city a higher degree of care than that of ordinary care in the construction of the superstructure. The instructions given correctly state the law.'

At page 688, vol. 13, Am. & Eng. Ency. Law (2d Ed.), it is said:

'That rule in relation to the present subject

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