Ryan Gulch Reservoir Co. v. Swartz

• Decision Date: 16 January 1928
• Docket Number: 11723.
• Citation: 83 Colo. 225,263 P. 728
• Parties: RYAN GULCH RESERVOIR CO. v. SWARTZ.
• Court: Colorado Supreme Court

263 P. 728

83 Colo. 225

RYAN GULCH RESERVOIR CO. v. SWARTZ.

No. 11723.

Supreme Court of Colorado, En Banc.

January 16, 1928

Error to District Court, Larimer County; Claude C. Coffin, Judge.

Action by John Swartz against the Ryan Gulch Reservoir Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Stow & Stover, of Ft. Collins, E. S. Allen, of Loveland, and H. A. Alpert, of Ft. Collins, for plaintiff in error.

Ab. H Romans, of Loveland, and Paul W. Lee and George H. Shaw, both of Ft. Collins, for defendant in error.

CAMPBELL J.

The plaintiff Swartz, whose lands have been injured, as he says, by the escaping waters of two reservoirs, one owned by the Ryan Gulch Reservoir Company the other by the Southside Irrigation & Reservoir Company brought his action against both corporations to recover the amount of his damages. The jury awarded him damages against both defendants, which ripened into a judgment in his favor, which, on review by us (Ryan Gulch, etc., Co. et al. v. Swartz, 77 Colo. 60, 234 P. 1059), was reversed, and the cause remanded for trial de novo. Our former opinion should be read in connection with this, as it will save some repetition of the facts, as well as disclose the difference between the case as then made and the case as made upon the second trial. After our remittitur was sent down, the plaintiff, with the court's permission, dismissed as to the Southside Company, probably because in our former opinion we said that upon the facts then before us there was no joint liability of the defendants, and they cannot be sued jointly, even though each defendant, had it been sued alone, might be liable for damages. Plaintiff then amended his complaint accordingly and thereupon elected to proceed, and did proceed, against the Ryan Gulch Company alone. The trial resulted in a judgment, now under review, for the plaintiff in the sum of $6,000.

In no material respect does the amended, differ from the original, complaint, except in the absence from the former of all averments concerning the dismissed defendant. Both complaints in form proceed erroneously, it is true, on the same theory, viz. the absolute statutory liability of reservoir owners for damages in such cases, from which even an act of God as the sole proximate cause does not exempt them. The answer to this amended complaint was, first, a general denial; second, that the flow of waters other than those impounded by the defendant caused the injury; third, act of God as the sole cause of the injury; fourth, a plea of res adjudicata, the same consisting of that part of our former opinion or decision where we said that the record then before us sufficiently showed that an act of God was the proximate cause of the injury.

The trial court sustained plaintiff's motion to strike from the answer the fourth defense of res adjudicata. Plaintiff then filed his replication denying the defense of vis major or act of God, and as an affirmative reply alleged that the defendant was guilty of negligence in the construction and maintenance of its reservoir, which caused or contributed to the injury of the plaintiff, and that defendant's reservoir dam would not have broken and caused plaintiff's injury save for such negligence of the defendant.

1. In our former opinion, we said that the court's instruction as to an act of God was inconsistent with itself. Possibly that statement was not strictly accurate or complete in itself, and we take this opportunity to say that a better expression of our thought is that, under the facts then before the court, and because the defendant at that time neither alleged nor produced evidence bearing on such an issue, the instruction was inapplicable to the facts, and therefore may be confusing or misleading. We did not then intend to rule, and did not say, because the case as made by averment and proof did not call for the announcement, that a defendant's negligent act that contributes to, or co-operates with, an act of God exempts him from liability for an injury inflicted as the result of the combined act of God and his own acts of omission or commission.

The defendant is wrong in interpreting as res adjudicata our announcement in the former opinion that the evidence in the record then before us was sufficient to prove that the rainstorm or cloudburst was an act of God, and could not have been foreseen or prevented by any care of the defendant in constructing and maintaining its reservoir, and that we intended thereby thus to end this controversy. Had such been our conclusion and intention, we would not have remanded the cause for trial de novo, but, on the contrary, would have dismissed the action. Our announcement was not intended to be, and could not be, the law of the case on a second trial, unless the facts elicited at the second were substantially the same as those produced at the first trial. At the first trial the plaintiff offered no evidence as to the negligence of the defendant in building or maintaining its reservoir, because he relied, unwisely, it is true, for a recovery upon the mere fact of the breaking of its embankments and the consequent overflow of its waters upon his lands; in other words, upon the supposed absolute statutory liability of a reservoir owner in such a case. When, however, we held in our former decision that an act of God, or vis major, is a good defense, the plaintiff, on the second trial, on proper averment produced evidence, entirely absent at the first trial, tending to prove, not only that the rainstorm was not an act of God, but, if so, that it was also of such a character as to warrant the conclusion, which the jury reached, that defendant's lack of proper care and maintenance of the reservoir and its embankments in a reasonably safe condition was the sole proximate cause of the injury; or that such negligence contributed to, or cooperated with, the act of God in bringing about that result.

Otherwise expressed, plaintiff's evidence on this issue, at the second trial, tended to show, and the jury found, that, if the storm was an act of God, nevertheless it was not the sole cause of the injury, but that defendant's negligence contributed thereto. Hence a different state of facts was presented to the trial court which required a submission to the jury to make a finding as to the cause or causes of the injury. The trial court properly instructed the jury, in accordance with what we believe to be the law, that the defendant under the evidence was not entitled to a verdict, unless the proximate cause of the injury was solely an act of God, and that, if the defendant was negligent in the building or maintaining of the banks of the reservoir, and that such negligence contributed to, or co-operated with, the act of God, the defendant cannot escape liability. We therefore say that our previous announcement is not, and was not intended to be, res adjudicata. Johnson v. Bailey, 17 Colo. 59, 28 P. 81. The evidence being in direct conflict upon the issue of the cause of the injury, and the jury having found in favor of the plaintiff upon legal and competent evidence, and the trial court having approved of the verdict, we cannot disturb the same or the judgment entered thereon for failure or lack of evidence to support it. Unless the trial court committed prejudicial error of a material nature upon some other branch of the case, the defendant is not entitled to relief here.

2. In a separate assignment, the defendant renews or continues its argument that the court erred in refusing to strike from the replication the plea of defendant's contributory negligence. What we have already said makes this ruling right.

3. Not until our former opinion in this case was announced had it been decided in this jurisdiction that an act of God or vis major is a good defense under the sections of our reservior act above referred to. Probably such a decision was foreshadowed by this court in Garnet, etc., Co. v. Sampson 48 Colo. 285, 110 P. 79, 1136. Some of our cases like Larimer County Ditch Co. v. Zimmerman, 4 Colo.App. 78, 34 P. 1111, have indicated or suggested that liability under these statutes is sufficiently absolute to relieve the plaintiff from alleging and proving negligence in the first instance. None of our cases, and we have found no well-considered case elsewhere so holding, have gone to the extent of saying that, when an act of God or vis major is relied upon as a defense, the plaintiff was thereby precluded from setting up in replication that the defendant...