Corrington v. Kalicak

• Decision Date: 06 January 1959
• Docket Number: No. 30006,30006
• Citation: 319 S.W.2d 888
• Parties: M. F. CORRINGTON and Dorothy L. Corrington (Plaintiffs), Respondents, v. John KALICAK, d/b/a John Kalicak Building Construction Co., and University City (Defendants), Appellants.
• Court: Missouri Court of Appeals

Page 888

319 S.W.2d 888

M. F. CORRINGTON and Dorothy L. Corrington (Plaintiffs), Respondents, v. John KALICAK, d/b/a John Kalicak Building Construction Co. and University City (Defendants), Appellants.

No. 30006.

St. Louis Court of Appeals, Missouri.

Jan. 6, 1959.

Motion for Rehearing or to Transfer to Supreme Court Denied

Feb. 2, 1959.

Chapman, Schwartz & Chapman, Adolph K. Schwartz, St. Louis, for appellants.

H. Jackson Daniel, Maurice Schechter, St. Louis, W. Fred Johnson, for respondents.

HOUSER, Commissioner.

This is an action by the owners of ten homes in University City for damages to their respective properties caused by the acts of defendants University City and its contractor in obstructing the River Des Peres, a natural watercourse. The trial court entered an order for the separate trial of the issues as to the owners of each separate property. The case of plaintiffs Corrington, husband and wife, was tried first. Following a jury verdict for plaintiffs for $1,000 defendants appealed from the ensuing judgment.

The petition is in two counts. Count I alleges that pursuant to a contract between city and contractor for the construction of reinforced concrete bridge decks across the River Des Peres at Shaftsbury, Avenue, a public street in University City, the contractor used certain false work, forms, piling and barriers, which formed and created an obstruction of the free flow of water through the watercourse; that a further impediment resulted from the accumulation of logs, stumps and debris collecting against the barriers, causing the river to overflow and cascade down Wilson Avenue, thereby flooding and damaging plaintiffs' real and personal property there located. Count II alleged the same facts but added five charges of specific negligence against both defendants. Count II was voluntarily dismissed at the conclusion of the evidence and the cause was submitted to the jury on Count I.

Defendants' answer admits the execution of the contract but denies the other allegations of both counts and sets up the affirmative defense that whatever damage plaintiffs sustained was caused by an act of God, through no fault of defendants.

Plaintiffs' residence is located on Wilson Avenue, a north and south street abutting the channel of the River Des Peres, a natural watercourse. Shaftsbury Avenue, an east and west street, intersects Wilson Avenue six houses south of plaintiffs' residence and crosses the river a short distance east of that intersection. Plaintiffs' residence is lower than the elevation at the intersection of Wilson and Shaftsbury. For many years a wooden bridge carried Shaftsbury across the river. The wooden bridge was supported by two pile bents. Each bent consisted of five pilings. Both bents extended from the bed of the river to the underneath of the bridge deck. The two bents were 12-15 inches in diameter, set transverse to the direction of the flow of water. In the exercise of its supervision and control of the river the city entered into a contract with John Kalicak to remove the wooden bridge and replace it with a reinforced concrete structure, to be built according to plans and specifications furnished by the city. The contractor took up the planks, removed the pilings and erected tubular scaffolding on which concrete forms were built. The scaffolding, made of iron pipes on the ends, reinforced in between, slipped together. The scaffolding units were welded and latticed ('X' braced) together in such a way that they were rigid. Individual scaffolding units were four feet wide and five feet long. More than 100 scaffoldings were placed under the bridge, spaced according to engineering diagrams indicating the number of pieces necessary to hold up the mass weight. The scaffolding filled up the channel the entire width and depth of the bridge, except one opening 12 to 15 feet in diameter to let the water through. The effect under the bridge was that of a crisscross. Looking through the underside of the bridge the scaffolding 'diminished the sunlight' to a certain extent. The work was subject to daily inspection by the city engineers and inspectors but the methods and means by which the contractor was to accomplish the work were not prescribed by the city but were left to the discretion of the contractor. The plans and specifications did not require the use of scaffolding. Its use was neither approved nor disapproved by the city engineer supervising the construction. The specifications did require that the support forms which were used not be removed until 14 days after the pouring of the concrete, in order to insure that the concrete harden sufficiently to bear the weight.

The concrete was poured on July 29, 1955. One hundred twenty-five cubic yards of concrete, which weighed approximately 270 tons, were poured into the forms. On August 9 the scaffolding and forms were still in place. Between 11:30 and midnight on the latter date .35 of an inch of rain fell in the vicinity. From midnight to 4:40 a. m. 2.15 inches fell. From 6:10 to 7:20 a. m. .32 of an inch fell. A total of 2.82 inches fell in 7 hours. The watershed area of the River Des Peres consists of approximately 5,200 acres. The river rose rapidly. Between 7 and 7:30 a. m. on August 10 the upstream side of the bridge scaffolding was becoming clogged with debris, timber, branches, boxes and tin cans, which could not go through the scaffolding. The water backed up, broke its bank about a half block upstream from the bridge, filled an adjacent hockey field and was being diverted into Wilson Avenue, where it was waist deep. The water was 4 feet higher on the upstream side than on the downstream side of the bridge. It was overflowing the upstream bank but not yet overflowing the downstream bank. There was considerable velocity to the flow of water. A considerable amount of water was coming out under the bridge on the downstream side. It was 'gushing' out. The debris caught in the lattice-work tubing did not form a solid block. Some of it got through, but the scaffolding and form work itself constituted an obstruction to the flow of the water, causing a backing up of water. The scaffolding left less room for water than there had been when the old pile bents were supporting the wooden bridge, i. e. while the pile bents obstructed the flow of water to some extent they did so 'in a very limited way' and not so much as the scaffolding. The scaffolding acted as a screen to catch the debris. The scaffolding and the accumulation of debris thereon constituted an obstruction to the flow of water. Upwards of 75% of the underside area of the bridge was obstructed by the scaffolding and debris. The obstruction under the bridge, which was the major contributing factor responsible for the flow of water across the hockey field, down Shaftsbury and Wilson, caused the damage to plaintiffs' property. The water ran across plaintiffs' yard and into their basement and house, leaving their yard littered with silt and mud, washing out their driveway, and doing extensive damage both to their real and personal property.

Appellants first contend that the court erred in submitting the case to the jury because under the evidence and law neither appellant could be liable for damage to plaintiffs' property 'caused by a sudden flash flood' following a 'sudden, intensive rainfall,' described as a 'violent gully washer.' This point must be disallowed. In order to sustain this point it would have to appear as a matter of law that the damage was not caused by the obstruction but resulted from natural causes over which appellants had no control. 93 C.J.S. Waters Sec. 36(5) d. It does not so appear. There was direct and circumstantial evidence that the damage was caused by the obstruction. "When the result in part is ascribable to the participation of man, * * * through active intervention * * * 'the whole occurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the acts of God."' Kennedy v. Union Elec. Co. of Mo., 358 Mo. 504, 216 S.W.2d 756, loc. cit. 763. There was insufficient evidence to declare as a matter of law that this flood was an act of God. An Act of God is 'an occurrence due to natural causes against which ordinary skill and foresight is not expected to provide. 1 C.J.S. Act p. 923.' Buschelberg v. Chicago, B. & Q. R. Co., Mo.App., 289 S.W.2d 447, loc. cit. 449. It is an event in nature so extraordinary that the history of climatic variations in the locality affords no reasonable warning of their coming. The rainfall on August 9-10, 1955, was not unprecedented in that vicinity. On August 14-16, 1946, almost 4.75 inches of rain fell in a 4-hour period. On July 5, 1948, 2.48 inches of rain fell between 7:30 and 10 p. m. Appellants themselves do not, on this appeal, claim that an act of God intervened. They refer to 'similar floods' in 1946 and 1948, when they say the River Des Peres 'overflowed its banks above the Shaftsbury Bridge and flooded Wilson Avenue, including the same house now occupied by Mr. and Mrs. Corrington.' They refer to 'the fact that the same stream has repeatedly overflowed its banks and flooded the same area prior to the reconstruction work on this particular bridge.' The whole question was submitted to the jury by Instruction 6 which directed a verdict for appellants upon a finding that 'there was an unexpected and extraordinary cloudburst, freshet or flood.' The jury resolved the question against appellants. There was ample evidence to support that finding.

Appellants' chief point is that the city and its contractor are not absolutely liable for placing an obstruction in a stream in the course of the construction of a bridge to carry a city street across a natural watercourse, in the absence of negligence. Respondents, contrariwise, assert that any obstruction to the flow of water in a natural watercourse resulting in injury to another person provides the basis for liability; that...