*1 A.) in determin- other could be considered F. 213. The corroboration of the If defendant. confession ing guilt (Robert of the other Chang) son conveyed complete. infor- correctly the foreman It is so with not reference to the merely he jury, balance of mation to the mother. had al- court what the reminded them of jury sent ready If he told them. not whether or court find out from the used, there are be so confession could answers, “No.” The possible “Yes” or two the one given the court answer no There is the defendants. unfavorable to jury were told suspect that the reason to INLAND POWER & LIGHT CO. v. not the evidence could foreman that GRIEGER et al.* rendered, verdict, promptly Their be used. No. 8130. such told that were they indicates that Appeals, The method Court Ninth Circuit. be used. evidence could to the instruction July conveying the court’s repeti- merely a erroneous, being but already the er- given of the instruction tion connec- In this quite harmless. ror was counsel tion, be noticed it should defend- chambers present may and therefore bail were out ants voluntarily absent have been courtroom. harmlessness of to the With reference error, merely num I call attention problem dealing with that decisions ber of ex the view have sustain which tend to
pressed
Peppers
States,
:
v. United
37 F.
(2d)
(C.C.A.6); Dodge
v. United
(C.C.A.)
Hagen
States
258 F.
v. Unit
(C.C.A.9)
merely at the time her son remained silent This at confessed. most would amount part an admission confession on her little, any, weight
would have if it mere as ly would amount to a second confession
and would not be a corroboration of the confession meaning first within the requiring a rule confession to be corro question
borated. The of a lack of cor appellant. roboration not raised jury were not instructed on the sub instruction ject and no was asked with re corroboration, lation thereto. See States, (2d) Pearlman v. United 10 F. (C.C.A.9), citing, Mangum (C.C. v. U. S.
*Rehearing Sept. 24, denied *2 Evans, Ellis, Ellis & Overton G. Evans, Tacoma, Wash., E. Robert all of Gray, Laing Henry Laing & A. John Portland, Gray, Or., appel- S. all of lant. Lord, -Anderson, Wm. P. Gross & Gross, Anderson, Harry Ben L. Portland, Or., appellees. DENMAN, MATHEWS, Before HANEY, Judges. .Circuit HANEY, Judge. brought by appellees re- action injury damages for to their land
cover
by overflowing
which
river
ap-
be the result of
injury was asserted to
judgment-
ren-
negligence,
-was
pellant’s
appellees, from
dered
favor of
appeal.
perfected
appellants
have
ap-
station,
the dam
purchased
On
is located a
Fay Grieger
gauging
Appellee
automatically
land
which records
height
in Clark
proximately 101 acres
November,
Wash.,
Upon
stilling
waters.
county,
float
ain
cylinder,
well is
tape
connected
time, appellees have
since
this land
*3
placed
on
paper.
which is
If the
prop-
The
dairying business.
float de-
a
maintained
ascends,
or
scends
cylinder
the
in the Lewis
is
at
bend
rotated.
erty is located
a
pencil
A
on
loam, which, the
records
the
silty
paper the
varia-
The soil
river.
tions in
height
the
shows,
matter that
of the water
in
testimony
“is the finest
the
stilling well.
it,
Below
floats, you
top
running
in
the dam is
might call
the
another
gauging station
stream;
which is
light.”
used
determine
is
daily
the mean
stream flow.
of
drains an area
about
The Lewis river
High waters
appellee
flooded
Fay Grie-
point
Ariel.
square miles above a
called
750
ger’s property
21,
on December
Ap-
in this area are some mountain
Included
pellees brought this action alleging that the
average
the
from
peaks. The
flow of
river
.damages sustained
negli-
4,370
second feet. The
1933 was
gence
appellant.
of
grounds
neg-
Several
of
kept
flow records
earliest stream
ligence were alleged, but we need to con-
survey
February,
Geological
begin in
U.S.
only
sider
urged
the one
appeal.
on this
ground
That
is
the damage
was “caused
Griswold,
1921,
engineer
civil
one
a
by the
impounded
waters,
release of
flood
position
at
located
Ariel
the Lewis
by appellant
released
through the flood
dam,
for the construction
river
of
which gates
appellant’s
of
dam.” At the conclu-
point
was about miles
above
location
appellee’s
sion of
chief,
case in
appellant
appellee’s
of
From that
land.
time until moved for a nonsuit
excepted
and
1929,
investigated
he
the conditions
of
of
ruling
the court which denied the mo-
been
to determine “what had
the his-
river
Appellant
tion.
thereupon
upon
stood
its
peak
of
river.”
in-
flood
His
torical
motion and rested its case without sub-
vestigation
examining
of
consisted
records mission of
evidence. The
returned a
survey,
Geological
log
of the U.S.
drifts
in
appellees
verdict
favor of
in the sum
marks,
high-water
talking
and
with
$4,000 upon
of
judgment
ap-
valley.
in the
He ascertained
settlers
that pealed from was entered.
peak
largest
of the
flood known
re-
December,
occurred
corded
1917. The
Appellant contends that
the evi
60,000
feet,
peak of that flood was
second
(1)
dence
failed
actionable
Amboy,
point on
at
measured
river negligence;
(2) conclusively showed that
the dam location. The flow of
above
unprecedented
an
flood caused the damage;,
at the dam location
river
exceeds the flow
(3) affirmatively
showed reasonable
per
Amboy
Computing
at
about
cent.
appellant.
care
There was evidence
basis,
the flow at the
on that
dam-site
the from which it could be inferred that
largest peak
approximately
flow
be
unprecedented
was caused
feet.
flood,
as
expressed,
66.000
otherwise
an act of
God,
appellant
and that
used reasonable
began
Construction of the dam
about
Therefore,
care.
if
appear
it does not
November,
completed,
1929. When it was
negligent,
can
there
be no
top
the dam was
feet above
recovery.
In considering
evidence,
mean sea
level.
elevation of the bed
must consider
that which is most fa
point
of the river
A
feet.
appellees,
every
vorable to
inference
power house is located at the base of the
fact
be drawn from it.
dam, and the center of the intake- is at
Maryland Casualty Co.
Jones,
279 U.S.
elevation 60. The intake
feet
di-
792, 795,
49 S.Ct.
As we upwards, thousand there was an erosion way? say I especially all the A. would the tortuous bend. And “Q. this was a tortuous bend Yes, through? sir, where this went A.
plenty of it. subject Very erosion, “O. wasn’t it? Yes,
A.
sir.”
With
evidence in mind the infor-
shown
mation
the charts becomes clear-
midnight beginning
day
er. At
1933,
December
the water
level was
high peak
236.1 feet. The
shown
graph
was reached
hours later when the
is apparent
elevation reached 237.6. It
that
beginning
morning
of Decem-
appellant
ber
discharged
had
less
flow,
stream
gauge
than the
because
height
the level
graph
indicates that
impounded
beginning
increased. At
from the
the morning of De-
peak,
four
gates
open,
were fully
cember
the elevation im-
poünded waters
in 30
decreased
inches
Thus it
apparent
that
Appellees
causes,
minutes.
contend that the chart natural
negligently
dis
correct,
charged by
and that
in addition to the
appellant,
appellees’
eroded
flow,
48,400
property
stream
discharged
causing damage.
two
causes
hand,
second feet. Appellant, on the other
were concurrent. There
evidence
was no
physical
contends that due to
precise
factors
as to the
amount of
graph
inporrect,
proceeds
to demon-
the negligent discharge
strate that it
physically impossible
to waters
Appellant
alone.
contends that
it
discharge any such amount of water. We was
appellees
incumbent on
see no
dispute
reason to enter
portion
because
act,
their
of other evidence in the case.
and relies on Radburn v. Fir Tree Lumber
Co., 83
Wash.
Georgia
P.
Engineer Roberts testified
in-
Ry. & P.
Ga.App. 780,
Co. v.
crease over the natural flow on
Johns
December
S.E.
and Brown
Chicago,
Q.
B. &
22d,
approximately
per cent.,
R.
(D.C.Neb.)
Co.
817 damage God, for the act of Telegraph v. Hoffman Co. Telephone & prior sustained the con 221, 227. (C.C.A. 9) 208 F. appellant’s negligence, currence of we be rale where any different Is there objection proof lieve no in this case damage an act are concurring causes proof can be taken. It is true that does By of defendant? negligence God not show to a mathematical scientific authority the weight of overwhelming certainty damage the amount of Cases The Salton Sea rule is same. prior God ap act of to the time when 214; (C.C.A. 9) F. 97 C.C.A. 172 pellant’s negligence It does dis concurred. 4) (C.C.A. De American v. Wese Coal Co. close erosion that occurred to that Ry. 349; v. Southern F.(2d) 30 Patton occurred, time. Where such erosion 287; 979, 27 C.C.A. (C.C.A. 4) Co. 82 F. depth. land was covered with water to some Casey Compare: 45 Eikland v. C.J. impossible stop It abruptly would be 880; Washing (C.C.A. Oregon 9) F. 290 done, measure the then 9) (C.C.A. R. v. ton & Co. Williams N. again. start the flood does not re The law pre Washington 268 F. this rule quire impossible. Appellee showed the & vails. West Seattle Land Howe v. facts, carefully, offered no Co., P. Improvement 59 Wash. proof. situation is the same as in a Co., 495; Ry. Pac. Goe v. Northern personal injury recovery case where 182; Puget Sound Rice v. Wash. 71 P. pain, suffering, had anguish. and mental Co., Traction, Light Power 80 Wash. & here is things one of the L.R.A.1915A, 797. If a different P. cannot mathematically be demonstrated Fir Tree result was reached Radburn v. one, jury’s and we must accept the de Co., then Lumber P. Wash. termination. The statement in Baltimore must consider case be overruled Baptist & R. R. Potomac Co. v. Fifth Libby, Libby, 160 Grant v. McNeill & Church, 317, 335, 719, 731, 108 U.S. 2 S.Ct. P. 139. Wash. 27 L.Ed. that “As with a blow face, may there be no arithmetical rule for argued rule It be that such a See, damages,” point. estimate is in applied a harsh one when to the facts also, Copper United Verde Co. Jordan you case should infer because (C.C.A. 299; (2d) 9) F. United Verde cent, causing per since of the waters Mining (C.C.A. Extension 9) Co. v. Jordan negligently discharged, the damage were 14 F.(2d) Smelting United States Co. *7 appellant’s negligence on therefore ly caused (C.C.A. 8) Sisam 191 F. 37 L.R.A. cent, per damage. the of To sustain (N.S.) 976. you such an inference would to con have negligently clude dis that the waters fact, question no such is be charged top 4 were the inches of the appellant fore us. If we assume was that possible, stream. is not That inference but prior liable for the erosion occurring not only the It rea inference. be as appellant’s negligence, to the time cent, sonable to conclude that the 6 per that must assume the trial so instruct court only, eroded the land because Certainly, jury. pre ed the no. error is you might infer that such waters all sumed. the instructions are not be Since against plaintiff’s the land. It also us, fore we must assume that there no was be inferred such that waters were on the error. stream, bottom commingled or so Grieger’s damaged by land was en with the natural flow it im that would be tirely eroding the part, silt loam on a possible to determine whether the by deposit gravel the of sand and over an natural negligently flow of the waters dis part. other One witness testified that the charged which caused the erosion. Grieger’s market reasonable value of land flood was before the “$250.00 $300.00 question, further not raised acre,” after and that the flood the land had parties, the has in been raised this court. no value. Since it is true that the evidence shows some damage by prior Grieger act testified that of God reasonable to the appellant’s time when negligent market value the land before the act flood concurred, appellant therefor, $22,000 with the buildings, liable not, appellee place and if duty did flood the have a to after was not worth prove $2,000. $1,000 damage amount over This done such evidence sus- part of the Assuming, act of God ? tains without the verdict of the which was deciding, appellant $4,000. would not be liable the act de- Assuming, of God? without assignment is that The second ciding, be would not liable judgment on entering trial court erred in God, for damage caused act of verdict, against verdict was that the prior which was to the con- sustained evidence. unsupported the law and appellant’s currence of negligence, we be- nothing for presents assignment Such an objection lieve no proof in this case Mfg. Dayton Co. v. Sab review. Rubber proof can be taken. It is true that 865; Hecht v. (C.C.A. F.(2d) ra 9) 63 does not show to a or scien- mathematical (C.C.A. 9) F.(2d) Alfaro certainty tific damage the amount trial assignment is that The third prior the act of God to the time when appellant’s denying motion court erred in appellant’s negligence concurred. It does ruling not as for a trial. Such a new prior disclose that erosion occurred to that signable v. Fairmount Glass Works as error. occurred, time. Where such erosion Co., Cub Fork Coal U.S. depth. land was covered with water to some L.Ed. Mutual S.Ct. It impossible would be to abruptly stop that Fargo Bank Life & Union Ins. Co. v. Wells done, measure then (C.C.A. 9) F.(2d) Trust Co. again. start does not law flood Affirmed. require impossible.” supplied.) (Italics (Majority opinion.) DENMAN, Judge. Upon this statement of candid what truly shows, record is created newa rule of I dissent. On facts as found in the liability. plaintiff required It longer no of a majority opinion opposed decision is prove that he what to his every Supreme decision of Court property mately proxi- the defendant’s tort has Memphis from the flood case of & do, caused. All he now has to Reeves, 10 C. Railroad Co. v. Wall. Circuit, prove this impossible is to that it 19 L.Ed. and of all the Cir- proximately such damage. cuits, which holds that one cannot be held theory It is a new of the law that the im- damage of he is not the liable. possibility of maintaining plaintiff’s burden proximate cause. proof shifts the burden to the defend- majority opinion finds that before ant to show his how much or how little defendant, negligence act plaintiff. tort damaged has raged plaintiff’s flood had over lands for at The fact that the case comes to us from depth 12 hours of 4 or feet. least It finds “The soil was a motion which, denial of nonsuit and loam, silty without the court’s instructions does not shows, testimony ‘is the finest matter appellee aid landowner. On the find- floats, it, you might top call court, ings in- ”, fact made no stream; light.’ running it is It finds that struction that the defendant not liable “was sight after the land had been out of occurring for erosion hours, to defendant’s for these 12 under the flood *8 negligence,” suggested majority power company release did the water from opinion, raising impossibility the 4 or 5 feet few would cure the its dam but a of de- when invisibly It finds that the land termining what inflicted damage inches. emerged from the waters all its value had negligence— had been caused defendant’s destroyed. been addition to the few inches the 12 the flood after sweep of the hours of the torrent ,be said, ipsafloquitur, It well res silty light soil. over the any negligence without the flood of the logical, It is but in view of the above company away power large, had carried 'a findings and decision that this court measurable, here- portion plain but not However, decide that a after tort-feasor is must lia- majority tiff’s arable land. damage occurring, a fact that ble for here from opinion finds as arising tortiously flood, prior defendant to his tort. He after the re will be so liable plaintiff raging impossi- inches to the shows the leased added feet wherever impossible bility segregation damage prior of determination. concurrency of the tort and the nat- “Since it is true that the evidence shows proximate forces in ural later 'causation of the damage by prior act God invisibly (and damage. here inflicted) appellant’s when negligent act con- time curred, However, therefor, suppose let liable us dam- not, appellee duty age was from another natural element— if amount of did have a part such instead of visible instead fire progress. invisible, damaging in its by lightning burns Suppose a lire suppose ripe grain; plain!iff’s 500 acres of tortiously starts day neighbor on the same burns- towards a brush fire which lightning fire lightning joins the fire and have burned. segregable after the 500 acres fire con- lightning The brush fire and grain through plaintiff’s together tinue and burn 100 acres more. for 100 neighbor liable Is the tortious It is obvious that 600 acres ? acres the 100 acres. he liable distinguishable because cases are not through
act of nature one works through fire. the other fails disclose careful search holding is liable for that a tort-feasor case by him because damage not inflicted from the tort force disconnected damage, merges prior such caused tort, damage. both inflict further others cited in none flood cases and any finding majority opinion there the tort- unsegregable damage participancy in cause feasor’s jointly caused further prior damage and damage. been judgment should have
reversed.
THE MARIA. STANDARD
GLADIOLI EXPORT CO., LUMBER Inc.
No. Appeals, Fourth Court of Circuit. June *9 Loomis, City L. of New York Homer Donahue, (Loomis, Williams & of New City, & Black and
York and Vandeventer Vandeventer, Va., Norfolk, Braden brief), appellant. on the