Kennedy v. Union Elec. Co. of Mo.

• Decision Date: 08 November 1948
• Docket Number: 40560
• Parties: C. W. Kennedy and Rena Kennedy, Husband and Wife, (Plaintiffs) Respondents, v. Union Electric Company of Missouri, a Corporation, (Defendant) Appellant
• Court: Missouri Supreme Court

216 S.W.2d 756

358 Mo. 504

C. W. Kennedy and Rena Kennedy, Husband and Wife, (Plaintiffs) Respondents, v. Union Electric Company of Missouri, a Corporation, (Defendant) Appellant

No. 40560

Supreme Court of Missouri

November 8, 1948

Rehearing Denied December 13, 1948.

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Affirmed.

Richmond C. Coburn, Harry H. Kay and John A. Woodbridge for (defendant) appellant.

(1) Plaintiffs failed to make a submissible case for the jury because they did not prove that the defendants' dam was the proximate cause of the plaintiffs' damage. When the wrongful act charged is at best a very remote cause of the injury, it is the duty of the plaintiff to produce substantial evidence connecting the wrongful act charged with the injury. Evans v. Massman Construction Co., 343 Mo. 632, 122 S.W.2d 924. (2) The jury was compelled to speculate or guess as to whether or not the defendant's acts were the proximate cause of the plaintiffs' damage. The fact that comparable high water occurred at the same time at points beyond any possible effect of a claimed obstruction in the stream indicates that the defendant's acts were not the proximate cause of the plaintiff's damage. Brown v. C., B. & Q.R. Co., 195 F. 1007; Morris v. Receivers of Richmond & D.R. Co., 65 F. 584. (3) Evidence comparable to that introduced in the instant case has been held to be too speculative and uncertain to establish the proximate cause of the plaintiff's damage in other flood damage cases. Brown v. C.B. & Q.R. Co., supra; Morris v. Receivers of Richmond & D.R. Co., supra. (4) The plaintiffs failed to prove what part of their damage, if any was caused by the silting, over and above the damage which the plaintiffs would have suffered from the natural flood conditions if no silting had existed. In cases involving an invasion of water rights the concurrent negligence rule is not applied and the plaintiff can recover against any one wrongdoer for only that part of his damage which he can trace to the acts of said wrongdoer. Benson v. City of St. Louis, 219 S.W. 575; State ex rel. Federal Lead Co. v. Dearing, 244 Mo. 25, 148 S.W. 618; Sherwood v. St. Louis-S.W. Ry. Co., 187 S.W. 260; Standley v. Atchison, T. & S.F. Ry. Co., 121 Mo.App. 537, 97 S.W. 244; Martinowsky v. Hannibal, 35 Mo.App. 70; Mosby v. Manhattan Oil Co., 52 F.2d 364, certiorari denied 284 U.S. 677, 52 S.Ct. 131; Montgomery Light & Water Power Co. v. Charles, 258 F. 723; Brown v. C., B. & Q.R. Co., 195 F. 1007; Miller v. Highland Ditch Co., 87 Cal. 430, 25 P. 550; Ryan Gulch Reservoir Co. v. Swartz, 77 Colo. 60, 234 P. 1059; Georgia Ry. & Power Co. v. Jones, 20 Ga.App. 780, 93 S.E. 521; Chicago & Alton R. Co. v. Glinney, 118 Ill. 487, 9 N.E. 203; Wm. Tackaberry Co. v. Sioux City Service Co., 154 Iowa 358, 132 N.W. 945, petition for rehearing overruled 134 N.W. 1064, 40 L.R.A. (N.S.) 152; Polk v. Illinois Central R. Co., 175 Ky. 762, 195 S.W. 129; Davis v. Hambrick, 125 Miss. 859, 88 So. 511; Boulger v. Northern Pac. Ry. Co., 41 N.D. 316, 171 N.W. 632; Panhandle & S.F. Ry. Co. v. Wiggins, 161 S.W.2d 501; Fort Worth & D.C. Ry. Co. v. Speer, 212 S.W. 762; Texas & P. Ry. Co. v. Cochrane, 69 S.W. 984; 56 Am. Jur., p. 522. (5) Where the act of the defendant and an act of God contribute to the overflow of the plaintiff's property, the defendant is liable only for that part of the damage attributable to his act. Sherwood v. St. Louis-S.W. Ry. Co., supra; Standley v. Atchison, T. & S.F. Ry. Co., supra; 112 A.L.R., pp. 1084, 1087. (6) The statements of lay witnesses that the dam contributed to the crest of the 1943 flood on the plaintiffs' property were improperly admitted by the trial court. A flood damage case in which the cause of the overflow is in question calls for the introduction of opinion evidence by experts in the field of hydraulics. Evans v. Massman Construction Co., 343 Mo. 632, 122 S.W.2d 924; Zeikle v. St. Paul & K.C.S.L.R. Co., 71 S.W.2d 154; Texas & Pac. Ry. Co. v. Cochrane, 69 S.W. 984. (7) If the witnesses Fergerson and Martin are to be treated as lay or non-expert witnesses, they should not have been permitted to state their opinion determinative of an ultimate issue in the case. Landau v. Travelers Ins. Co., 315 Mo. 760, 287 S.W. 346; Hanke v. St. Louis, 272 S.W. 933; Hughes v. Prudential Ins. Co., 179 S.W.2d 630; Schaeffer v. Northern Assur. Co. Ltd., 177 S.W.2d 688; Butner v. Union Pacific R. Co., 236 Mo.App. 1134, 163 S.W.2d 100; Martin v. Connor, 233 Mo.App. 1024, 128 S.W.2d 309. (8) Nor will an eyewitness be permitted to give a shorthand rendition of what he has seen in a flood damage case, especially where the area in question is so large that he could not have seen all of the facts bearing upon the conclusion stated by him. Grace v. Union Electric Co. of Missouri, 200 S.W.2d 364; Cane Creek Coal Mining Co. v. Braden, 25 Ala.App. 256, 144 So. 143 (1932); St. Louis, I.M. & S. Ry. Co. v. Yarborough, 56 Ark. 612, 20 S.W. 515; Northern California Power Co. v. Waller, 174 Cal. 377, 163 P. 214; Berry v. Driver, 167 Ind. 127, 76 N.E. 967; Louisville Hydro-Electric Co. v. Coburn, 270 Ky. 624, 110 S.W.2d 445; Northeast Coal Co. v. Hayes, 244 Ky. 639, 51 S.W.2d 960; Midkiff v. Carter, 188 Ky. 339, 222 S.W. 92; Carter v. Griffith, 179 Ky. 164, 200 S.W. 369; Wilbaux Realty Co. v. Northern Pacific Ry. Co., 101 Mont. 126, 54 P.2d 1175; Kendrick v. Furman, 80 Neb. 797, 115 N.W. 541; McLeod v. Miller & Lux, 40 Nev. 447, 153 P. 566; Chan Sing v. City of Portland, 37 Ore. 68, 60 P. 718; Shaw v. Susquehanna Boom Co., 125 Pa. St. 324, 17 A. 426; Jones v. Seaboard Airline Ry. Co., 67 S.C. 181, 45 S.E. 188; DeKalb County v. Tennessee Elec. & Power Co., 17 Tenn.App. 343, 67 S.W.2d 555. (9) The admission of the statements of the witnesses Fergerson and Martin as to the cause of the flooding of the plaintiffs' property constituted prejudicial error. Such statements were not cumulative of other evidence introduced without objection. State v. Harris, 334 Mo. 38, 64 S.W.2d 256; 23 C.J. 10.

F. M. Brady, Edwin F. Brady, Lamm & Barnett and D. S. Lamm for (plaintiffs) respondents.

(1) The general rule is that responsibility for damages to property caused by the maintenance of a dam is imposed on the owner and operator of the structure. 67 C.J., p. 724, sec. 59 (5) p. 722, sec. 55 and numerous cases cited. (2) This is the rule, and if the rule were otherwise, it would result in depriving property owners of their property and take it from them without compensation. McDaniels v. Greenville-Carolina Power Co., 78 S.E. 980. (3) One whose property is injured by flooding is entitled to damages proportionate to the injury sustained and measured by the injury which plaintiff has suffered in consequence thereof. 67 C.J., p. 760, sec. 104(4). (4) And the correct measure of damages is the difference between the fair, reasonable market value before and after the injury. 67 C.J., p. 761, sec. 105(b); St. Louis Trust Co. v. Bambrick, 149 Mo. 560; Coffman v. Railroad, 183 Mo.App. 622. (5) A defendant who, by a dam (or otherwise), obstructs the flow of water causing it to overflow is liable for damages resulting, and this rule applies in cases where the dam causes silting and the silting causes the overflow or back water which causes the damage. Standley v. Railroad Co., 121 Mo.App. 537; Hand v. Catawba Power Co., 73 S.E. 187; U.S. v. Chicago, B. and Q.R. Co., 90 F.2d 161; McDaniel v. Greenville-Carolina Power Co., 78 S.E. 980; Doty v. Village of Johnson, 77 A. 866; Grace v. Union Electric Co., 200 S.W.2d 364. (6) This action is in the nature of trespass. It is not in negligence. Grace v. Union Electric, 200 S.W.2d 364; McDaniel v. Greenville-Carolina Power Co., 78 S.E. 980; Judge Hyde's opinion, p. 1, citing 2 Farnham, Water and Water Rights, 1767, Sec. 547; Authorities cited under (1), (3) and (5). (7) Even invasion of air space over one's property is trespass if it interferes with proper enjoyment of a reasonable use of the land. 99 A.L.R. 175. (8) Defendant's legal right to build a dam is not questioned. "The general rule is that one who obstructs a natural watercourse or places a structure therein, even in the exercise of a lawful right to do so, must take proper precautions to prevent injury therefrom to others by the action of anticipatable floods." 56 Am. Jur. 521, sec. 32 and cases cited. Judge Hyde's opinion, p. 9. (9) The term "Act of God," in its legal sense, applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality afford no reasonable warning of them. Farnham 577a; Law v. Gulf States Steel Co., 156 So. 835. (10) And it has been held that to give immunity it must appear that the Act of God was not only a proximate cause but was the sole cause. 56 Am. Jur. 521, sec. 32 and cases cited; Dougan v. Thompson, 150 S.W.2d 518; and cases cited. (11) And it has been held in Missouri that "if defendants negligence concurred with the Act of God and their negligence was one of the proximate causes of the damages, they would still be liable." Bailey v. Wabash Ry. Co., 207 S.W. 82; South Side Realty Co. v. St. Louis & S.F.R. Co., 154 Mo.App. 365, 134 S.W. 1034; Brash v. St. Louis, 161 Mo. 433; Standley v. Atchison, T. & S.F.R. Co., 121 Mo.App. 537, 97 S.W. 244; Kenney v. Kansas City P. & G.R. Co., 74 Mo.App. 301; Inland Power & Light Co. v. Grieger, 91 F.2d 811, 112 A.L.R. 1075; Annotation 112 A.L.R. 1084; Annotation 169 A.L.R. 536; Judge Hyde's opinion, p. 10. (12) Usually, whether a flood is such as should have been anticipated and provided against is a question for the jury. 44 Am. Jur. 473, sec. 249; 2 Farnham, Waters, 1841, Sec. 577a. (13) While the general rule is that non-expert witnesses must state facts and not give their...