Ferguson v. Union Elec. Co. of Mo.

• Decision Date: 12 September 1955
• Docket Number: No. 44482,No. 1,44482,1
• Citation: 282 S.W.2d 505
• Parties: Woodrow FERGUSON et al., Respondents, v. UNION ELECTRIC COMPANY OF MISSOURI, a corporation, Appellant
• Court: Missouri Supreme Court

Page 505

282 S.W.2d 505

Woodrow FERGUSON et al., Respondents, v. UNION ELECTRIC COMPANY OF MISSOURI, a corporation, Appellant.

No. 44482.

Supreme Court of Missouri, Division No. 1.

Sept. 12, 1955.

Motion for Rehearing or to Transfer to Court En Banc Denied

Oct. 10, 1955.

Harry H. Kay, Eldon, H. C. Salveter, Sedalia, for appellant, John A. Woodbridge, St. Louis, of counsel.

George H. Miller, Sedalia, Frank M. Brady, Warsaw, Ralph B. Nevins, Hermitage, for respondents.

COIL, Commissioner.

Union Electric Company of Missouri has appealed from a judgment for damages allegedly sustained by respondents as a result of floodwaters overflowing their respective farms. We shall refer to the parties as they were designated in the trial court. Originally there were nine counts in plaintiffs' second amended petition involving seven different farms. Prior to the submission of the case two of the counts were dismissed. The $38,671.90 judgment entered was for damages to crops on five farms and included seven separate claims. Defendant contends, inter alia, that the trial court erred in giving instruction 2.

Defendant owns and operates a hydroelectric dam at Bagnell, Missouri, which impounds the waters of the Osage River and its tributaries to form the Lake of the Ozarks. The dam is about 2,560 feet long and 148 feet in height. In it there are twelve floodgates, each 24 feet X 32 feet. Those gates at full capacity will permit a total of 144,000 cubic feet of water per second to pass through them when the lake is normally full, i.e., 660 feet above mean sea level. In addition, there are six openings in the dam which permit water to pass to generators for the purpose of producing power, each of which, at full capacity and a normal full lake level, will allow 5,000 cubic feet of water per second to pass through. The total Osage watershed is an area of 14,000 square miles; 11,500 square miles of which are above Warsaw, Missouri. Warsaw is 95 miles (by water) above the dam.

According to plaintiffs, when the water level is 660 feet above sea level at the dam, the lake reservoir covers 60,000 acres and extends from the dam 125 miles by water to the County Line Bridge which spans the Osage between St. Clair and Henry Counties. Two of plaintiffs' farms are located on the Osage, one on Hogles Creek, and two on the Pomme de Terre River, both of which latter streams are Osage tributaries, and all five farms are located between the County Line Bridge and Warsaw.

Plaintiffs alleged in their petition that in June and July of 1951 floodwaters of the Lake of the Ozarks overflowed and 'backed upon the farm land of plaintiffs, remaining upon said land for several days, and damaging and destroying plaintiffs' crops'.

Defendant had obtained easements giving it the right to flood plaintiffs' farms to certain heights (varying as to the individual plaintiffs between 667 and 673 feet). In each instance, however, plaintiffs sought recovery only for crop damage occurring above the height designated in the respective easements. (Overflow or flooding of plaintiffs' farms and crops will hereinafter refer to overflow or flooding above the easement level.)

Plaintiffs' basic theory was that the height of the water at the dam affected the height of the water in the Osage at any place in the lake reservoir, and consequently at any place below the County Line Bridge, and that the height of the water at the dam likewise affected the height of the water in the two Osage tributaries involved, the Pomme de Terre River and Hogles Creek, for a distance from their respective mouths beyond the location of plaintiffs' three farms on those tributaries. Plaintiffs adduced evidence to the effect that if the lake level at the dam had been maintained at a height not in excess of 660 feet above sea level, all the Osage floodwaters would have flowed past plaintiffs' respective farms without overflowing; that the lake level was not maintained at 660 feet above sea level or less, although defendant could have so maintained it by proper use of the floodgates, but, on the contrary, the lake level at the dam was permitted to be and remain higher than 660 feet.

Defendant's basic theory was that in flood times the height of the water at the dam had no effect whatever on the height of the water on plaintiffs' farms for the reason that the farms are located so far away from the dam that they could not be influenced by the lake; that had defendant completely drained the lake prior to the 1951 flood, such act would have made no difference so far as concerned the overflow of plaintiffs' farms, because they were located on a section of the Osage and at places on Osage tributaries where those streams flowed as natural streams, and that 'the water that passes these farms don't know there is a lake ahead of it,' and that all of the involved farms were flooded by an 'Osage River headwaters rise.'

In short, plaintiffs contended that the height of the lake affected the height of the water on plaintiffs' farms during flood times, and that defendant caused the overflow and the damage by permitting the lake to get too high at the dam; while defendant contended that in flood times such as June and July of 1951 the height of the lake had no effect on the height of the water on plaintiffs' farms and consequently it did not matter how high the lake was at the dam or how the floodgates were operated, or whether they were opened at all or to any particular extent.

Plaintiffs' instruction 2 was: 'The Court instructs the jury that if you find and believe from the evidence that in the months of June and July, 1951, the defendant Union Electric Company, owned and operated a hydro-electric dam across the Osage River at Bagnell, Missouri, and if you further find that said dam impounded the waters of the Osage River, creating a reservoir which at full stage of 660 feet above mean sea level extended from Bagnell, Missouri, to approximately the county line between Henry and St. Clair Counties; and if you further find that plaintiffs' farms in question were either upon or nearby the said reservoir as it extended above Warsaw, Missouri; and if you further find and believe that in addition to passage ways for the impounded water to reach the electrical generating turbines there were 12 flood gates in said dam for the purpose of allowing flood water coming into said reservoir to pass said dam; and if you find and believe that said floodgates were of such number, size and capacity to allow all of the flood waters which would have flowed by plaintiffs' farms in June and July, 1951, to pass said farms and thence through said dam without causing the overflow and destruction of the crops in question on plaintiffs' farms; and if you further find and believe that plaintiffs' crops in question, and for which they ask damages from the defendant were flooded and destroyed in the latter part of June and the early part of July, 1951; and if you further find that said flood or overflow waters were caused to go upon plaintiffs' lands because of the failure of the defendant to open the flood gates sufficiently at said dam; and if you further find and believe that in failing to open the flood gates sufficiently at the dam to allow said flood water to pass without destroying plaintiffs' crops that defendant failed to use ordinary care and was negligent; and if you further find and believe that said negligence, if any, was the direct and proximate cause of the destruction of each and all of plaintiffs' crops in question, then your verdict will be against the defendant and in favor of the plaintiffs.'

Defendant contends that the instruction was erroneous in that it omitted an essential element of plaintiffs' case, viz., a finding 'that defendant knew, or by the exercise of reasonable diligence should have known, that sufficient flood waters would flow past plaintiffs' farms in June and July, 1951, to cause plaintiffs' farms to be flooded and their crops damaged unless it opened its gates and that it knew, or should have known such fact in time for it to prevent such overflow and damage to plaintiffs by opening its gates at the Dam.'

We think that contention must be sustained. The duty of defendant to exercise care to so operate its dam as not to injure plaintiffs was not violated and thus defendant was not negligent, unless the jury found that defendant possessed, or as a reasonably prudent operator of a hydroelectric dam should have possessed, timely knowledge concerning the effect of 1951 floodwaters on plaintiffs' farms, and that the overflow could have been prevented by timely sufficient opening of the floodgates. Otherwise stated, the jury, to find defendant failed to exercise the requisite care in failing to sufficiently open the floodgates, had to find that the degree to which the gates were opened was not sufficient and that the defendant, in the exercise of care, so knew or so could have known in time to have opened the floodgates sufficiently and thereby have prevented the overflow.

The instruction required the jury to find in effect that defendant had the gates available; that it failed to open them sufficiently; that the failure to so open the gates sufficiently proximately caused the overflow of plaintiffs' farms and the destruction of their crops; and that such failure to open the gates sufficiently was negligence. The trouble with the instruction is that it directed the jury to find plaintiff negligent upon the sole essential finding of causal connection between failure to open the floodgates and the overflow of plaintiffs' farms. It omitted any requirement that the jury find that defendant had or should have had prior timely knowledge necessarily prerequisite to the further finding that defendant's failure to have opened the floodgates sufficiently was negligence. We cannot know from an examination of this instruction whether the jury considered and contemplated in its finding that defendant's...