Kuhnis v. Lewis River Boom & Logging Co.

• Decision Date: 11 December 1908
• Citation: 51 Wash. 196,98 P. 655
• Court: Washington Supreme Court
• Parties: KUHNIS v. LEWIS RIVER BOOM & LOGGING CO.

98 P. 655

51 Wash. 196

KUHNIS v. LEWIS RIVER BOOM & LOGGING CO.

Supreme Court of Washington

December 11, 1908

Appeal from Superior Court, Cowlitz County; W. W. McCredie, Judge.

Action by Joseph Kuhnis against the Lewis River Boom & Logging Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

Pearcy & Wintler and John T. McKee, for appellant.

A. L. Miller, for respondent.

DUNBAR J.

This action was commenced by plaintiff to recover damages from the defendant for the washing away of a portion of plaintiff's premises and property, alleged to have been caused by the construction and maintenance of a boom owned and operated by defendant in the Lewis river on the opposite side of the river from plaintiff's land.

The case was tried to a jury and a verdict returned in favor of defendant. Plaintiff appeals.

Lewis river is a navigable, meandered stream, and respondent is a corporation organized under the laws of the state of Washington for the purpose of constructing and operating a public boom. The question at issue on the trial was whether the boom caused the current to set across the stream and against the shore with greater volume and with more destructive force than it would have done if the boom had not been constructed where it was. The following instructions among others, were submitted by the court to the jury, and the giving of such instructions is assigned as error by the appellant: '(1) An extraordinary flood is an act of God and imposes no liability upon him whose lawful structure is an instrument causing damages to others. The defendant was and is only bound to build and maintain its said boom as reasonable men can foresee shall be necessary to meet the ordinary contingencies and demands of nature, and cannot be held liable for these extraordinary visitations whose comings could not have been anticipated or guarded against by the exercise of ordinary foresight. (2) If the flood or floods that caused the damage to plaintiff's land were sudden and unusual floods, whose comings could not have been anticipated or guarded against by the exercise of ordinary foresight, then the defendant is not liable for any damages caused thereby, notwithstanding the boom or its operations have contributed to the washing away of plaintiff's land. (3) As to these items (referring to the barn, $1,000, hay $975, and feed $25, as per transcript, page 21), the question has been raised that the loss of same was due to the negligence of plaintiff in not saving same when he had an opportunity. If you find defendant offered to remove this property to a place of safety, or assist in doing so and the same could safely have been done, but was not done on account of plaintiff's refusal to save or permit this property to be saved, then you are to allow no damages on account of the loss thereof.'

The term 'act of God' has received multifarious definitions. It is defined in Words and Phrases Judicially Defined, p. 118, as follows: 'It is said to be that which is occasioned exclusively by the violence of nature; by that kind of force of the elements which human ability could not have foreseen or prevented, such as lightning, tornado, sudden squall of wind, and the like. Again, it is said to be, at least, an act of nature which implies entire exclusion of all human agency whether of the carrier himself or of third persons. It is called a disaster with which the agency of man has nothing to do. It is defined to be a natural necessity, which could not have been occasioned by the interforence of man, but proceeds from physical causes along.' And a multitude of cases are cited to sustain these definitions. In Niblo v. Binsse, 44 Barb. (N. Y.) 54, it is defined as any inevitable accident, and is construed to mean in law something in opposition to the act of man. In Klair v. Wilmington Steamboat Company, 4 Pennewill (Del.) 51, 54 A. 694, it is said that by 'act of God' is meant some inevitable accident which cannot be prevented by human care, skill, or foresight. It has also been described as involving some notion of an accident from natural causes impossible to be foreseen and impossible to be guarded against. In Tompkins v. The Duchess of Ulster, 24 F. Cas. 32, the court said that the act of God which excuses a common carrier from liability must be the immediate and distinct result of providential events, sudden or overwhelming in their character, which human foresight could not foresee. It would not be profitable to incorporate any further definitions of the term in this opinion.

It is contended that the court erred in instructing the jury that an extraordinary flood was an act of God and imposed no liability upon him whose lawful structure was an instrument causing damage to others. We think this contention must be sustained. In the first place, there was no allegation in the answer that the...