Smith v. BD. OF CTY. ROAD COMRS. OF CHIPPEWA CTY.

161 N.W.2d 561, 381 Mich. 363, 1968 Mich. LEXIS 118

• Court: Michigan Supreme Court
• Decided: October 21, 1968
• Docket: Calendar 8, Docket 51,718
• Status: Published

Opinions

Dethmers, C. J.

Plaintiff claims damages for defendant’s trespass upon and flooding his property. Defendant raises as defense an act of Rod. The main question in the case is whether that defense was properly left to the jury as a question of fact.

A low area or basin, about five acres in size, was surrounded by roads on the west, north, and east sides. To the south was a hill and an area of several hundred acres which drained into the five-acre basin.

For years prior to 1957 water accumulating in the basin each spring from thawing snows and rains escaped through an 18-inch culvert under the west road and flowed over the top of that road to a depth of from 12 to 14 inches and in a stream of from 40 to 50 feet in width, often continuing thus for several days.

In 1957 defendant replaced the 18-inch culvert with a 24-inch culvert and raised the level of the west road in that area by several feet. Thereafter, water no longer flowed across that road as before.

There are proofs in support of the following: In the spring of 1959 an extraordinarily heavy rainfall occurred and the basin filled with water nearly to the top of the raised west road. The unusually large accumulation of water in the basin caused a breakthrough and washout through the east road. The flow of water from that opening turned north beyond the east road and rushed down toward Lake Superior. In so doing it poured over plaintiffs property and gouged out a large ravine near his summer residence into which the house collapsed with plaintiff and several people in it. The damages resulting from this occurrence are the basis for this action.

At the conclusion of proofs for both sides, plaintiff moved for a directed verdict for plaintiff on the question of liability with the amount of damages to be left to jury determination. Plaintiff also submitted requests to charge, including one which amounted to a request for such directed verdict. These the trial court refused.

The defendant having claimed that plaintiff’s injury was due to an act of God, namely, a torrential rainfall, the court instructed the jury on that subject, defining an act of God in legal contemplation and stating the circumstances under which it was available as a defense. The court made it clear that if an act of God occurred which was not a superseding, supervening force, obliterating all other causes brought about by defendant, then defendant would be liable, but, if there had been an act of God, which was the sole cause of the disaster and the latter was not contributed to by acts or inaction on defendant’s part, then defendant would not be liable. There was no complaint on plaintiff’s part at trial nor on appeal as to the correctness of the court’s charge on this subject, but only that it should not have been given at all.

In this case plaintiff cites cases for the proposition that when an act of defendant concurs with an act of God as a cause of the injury, defendant is liable; that an act of God is a defense only if it is the sole proximate cause of the injury.

* Plaintiff then insists that under the proofs here there can be no question but that defendant’s action in raising the west road was, as some testimony indicates, a concurring cause of the injury, without which it would not have happened despite the unusual rainfall, and, therefore, defendant should be held liable as a matter of law.

Defendant relies on Golden & Boter Transfer Co. v. Brown & Sehler Co. (1920), 209 Mich 503, as holding, under the proofs in that case, that the question of an act of God was a question of fact for the jury. Defendant then quotes from the opinion of this Court in that case, as approving the quotation therein contained from the instructions of the trial court, as follows (pp 509, 510):

“ ‘Now if you find that the sole cause of the falling of the wall was an extraordinary wind storm, such a wind storm as our experience in this locality would not lead us to anticipate, your verdict should be for the defendants, a verdict of no cause of action, for the falling of the wall from such a cause would be what is termed an act of God. I am going to repeat that to you again so that we will make no mistake about your getting it. If you find that the sole cause of the falling of the wall was an extraordinary wind storm, such a wind storm as our experience in this locality would not lead us to anticipate, your verdict should he for the defendants, a verdict of no cause of action, because the defendants would not be required by the law to guard against such an extraordinary storm as I have just been speaking of, for the falling of the wall from such a cause would be what is termed the act of God. By the term “act of God” is meant those events and accidents which proceed from natural causes and cannot be anticipated and provided against, such as unprecedented storms, or freshets, lightning, earthquakes, et cetera. For a loss occasioned by the act of God, ns I have defined it, the defendants would not be responsible. If the sole cause of the falling of the wall was an act of God, I said the plaintiff cannot recover.’ ”

There was testimony here to indicate, or from which it might be inferred, that but for the unusual rainfall here involved the accident and injury would not have occurred.

The trial court was of the view that the proofs left the questions of whether there had been an act of God which caused plaintiff’s damages and whether it was the sole cause, or whether defendant’s change of the grade and level of the west road was a contributing and concurring cause thus rendering it liable despite the act of God, as questions of fact for jury determination. With that view the Court of Appeals concurred and affirmed the jury’s verdict of no cause for action. We do likewise.

Affirmed. Costs to defendant.

Kelly, O’Hara, and T. E. Brennan, JJ., concurred with Dethmers, C. J.

American Coal Co. v. De Wese (CA 4, 1929), 30 F2d 349; Jackson v. Wisconsin Telephone Co. (1894), 88 Wis 243 (60 NW 430) ; Zollman v. Baltimore O. S. W. R. Co. (1918), 70 Ind App 395 (121 NE 135); Chidester v. Consolidated Co. (1881), 59 Cal 197; City of Piqua y. Morris (1918), 98 Ohio St 42 (120 NE 300) ; Inland Power 4 Light Co. v. Grieger (CA 9, 1937), 91 F2d 811; Sauer v. Rural Co-op Power Association (1948), 225 Minn 356 (31 NW2d 15) ; Williams v. Columbus Producing Co. (1917), 80 W Va 683 (93 SE 809); Tobin v. Lake Shore & M. S. R. Co. (1916), 192 Mich 549; Klawinski v. Lake Shore & M. S. R. Co. (1915), 185 Mich 643; LeVasseur v. Allen Electric Co. (1953), 338 Mich 121.