ON MOTION FOR REHEARING. In its motion for rehearing, defendant insists that even if the 1943 flooding of plaintiffs' building was not entirely due to an Act of God so as to preclude plaintiffs from recovering anything, nevertheless, plaintiffs must prove how much of their damage was caused by defendant's obstruction of the stream; and that since plaintiffs did not do so it is at least entitled to a new trial.
Defendant says "if a natural force (whether anticipatable or not) contributed with the obstruction of the stream by a defendant to cause the overflow of the plaintiff's property, the damages are apportioned and the defendant is required to pay only that part of the damage attributable to his wrongful act."
It is true where part of flood damage would have been caused by an anticipatable overflow, without any obstruction, one who obstructed the stream would not be liable for such part but only for the additional damages caused by his obstruction, as the cases cited by defendant hold. [Sherwood v. St. Louis Southwestern Ry. Co. (Mo. App.) 187 S.W. 260; Brown v. C.B. Q.R. Co., 195 F. 1007; Standley v. A.T. S.F.R. Co.,121 Mo. App. 537, 97 S.W. 244; McAdams v. Davis, 200 Iowa 204, 202 N.W. 515; Pfannebecker v. C.R.I. P.R. Co., 226 N.W. 161.] However, in this case no anticipatable flood would have touched plaintiffs' building; none ever had been that high at this place. Therefore, if defendant's obstruction caused the excess, or only the last four feet of the excess, then defendant's act caused all the damage in this case. What we have held is that plaintiffs had substantial evidence to so show. *Page 520
We pointed out that the instructions herein did apply the rule for which defendant contended, namely; that defendant was liable only if the jury found plaintiffs' property would not have been flooded except for defendant's dam. The jury was thus required to find that defendant's dam caused all of plaintiffs' damage; and this left no apportionment issue in the case.
The motion for rehearing is overruled. All concur.