SPECIAL FINDINGS IRRECONCILABLE WITH GENERAL VERDICT.

Court of Appeals for Wayne County.

#### Elizabeth Steele v. The Baltimore and Ohio Railroad Company.

Decided, February 4, 1921.

*Findings as to Cause of the Damage Alleged*— Inconsistent *with Verdict Awarding Damages*— Former *Controls*— Unprecedented *Flood an Act of God*— Application *of Section*11464.

1. In an action for damages to plaintiff’s land from the overflow of a stream, alleged to have been caused by the building of piers for a bridge, testimony to the effect that the damage occurred during an unprecedented flood denotes that the overflow was an act of God for which no recovery in damages can be had.

2. Where special findings of fact made in such a case are to the effect that the flood was unprecedented and that there had been no overflow of plaintiffs land prior to that time, and these findings are clearly supported by the evidence, but a verdict has been returned awarding damages because of such overflow, the court is justified in disregarding the verdict on the ground of inconsistency and may grant judgment for the defendant.

*A. D. Metz,*for plaintiff in error.

*Taylor & Tiling,*contra.

Houck, J.

The plaintiff in error here was the plaintiff below and the defendant in error here was the defendant below, and hereafter in this opinion they will be referred to as the plaintiff and defendant.

The evidential facts in this case are known to the parties *254hereto, the counsel and court, and therefore need not be restated in this opinion.

The plaintiff recovered a judgment in the court below aganist the defendant in the sum of $565 for alleged damages to plaintiff’s lands caused by defendant placing piers under its bridge over a certain ditch or a stream of water, thereby diverting the water therein from its regular course and causing it to overflow over the lands of said plaintiff.

The jury at the time it returned the general verdict answered a number of special interrogatories which were presented by the defendant.

The trial judge sustained a motion of the defendant for a judgment on the special findings of fact because they were inconsistent with the general verdict.

Question: Did the court below err in sustaining said motion? In order to properly pass upon the question here raised, we deem it necessary to refer to but one of the special findings of fact, namely (No. 11), Was the flood of 1913 in the township of Milton, Wayne county, Ohio, where the plaintiff’s lands are located, an extraordinary and unprecedented flood? Answer: Yes.

Edgar L. Steele, the husband of the plaintiff, testified as follows:

Q. In 1911 and 1912 was there any overflow on the land of Mrs. Steele, the plaintiff?

A. No I don’t think so, the most overflowing was in 1913, 1914, 1915 and 1916.

Q. Was it in 1913?

A. That was the time of the big flood, yes sir.

Q. From what stream was her land overflowed?

A. From the Big Chippewa.

Q. What effect did it have at the time of the high water in 1913.

A. It went all over the land.

Q. I understand you now to say that prior to 1913 you *255never had any debris thrown over there by the flood, no Canadian thistles, no briers?

A. No sir.

Q. What year prior to 1913 did yon have any flood over Mrs. Steele’s land?

A. There was a time or two that the water would back up or something of that kind.

Q. You had a backing up of the water even before the bridge was built?

A. Yes, that is when we had it.

Q. Didn’t you say you did not have any except a little backing water until 1913?

A. Yes sir, I say so yet.

Q. Didn’t you answer to Mr. Metz that there was no flooding in 1912?

A. I don’t know.

Q. If you did, was it true?

A. If I said so it was true — I am not here to lie.

Q. Now we will come to .1913. Had you known such a flood as 1913 in any year from 1905 to 1913?

A. 1913 was the highest water.

Q. The fact is that a large portion of Mrs. Steele’s farm was under water in 1913?

A. Yes sir.

Q. When you come to 1913 and that flood you say that those embankments were softened and destroyed and were washed over to your wife’s land?

A.- Yes sir.

Section 11464 General Code provides:

> “When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

Thus as in the instant case where the special finding of fact by the jury is in conflict with the general verdict and is *256upon a question material to or decisive of the ease, it is proper to enter a judgment that is responsive to tbe finding of fad, notwithstanding the general verdict. But unless the special finding of fact is so irreconcilably in conflict with the general, verdict as that both can not stand, then the motion must be overruled without regard to the evidence.

In the present ease the evidence clearly supports the finding of fact that the flood of 1913 was unprecedented,, and further that prior to said time the water from the ditch in question never overflowed the land of plaintiff to her damage. We think the case of *Davis*v. Turner, 69 O. S., page 102, third syllabus, is decisive of the question here raised.

> “To be inconsistent with the general verdict as contemplated by Section 11464. General Code, it must appear that the special findings are irreconcilable in legal sense with the general verdict, and to justify the court in setting aside or disregarding the general verdict on the ground that it is inconsistent with such special findings the conflict must be clear and irreconcilable.”

The damage to the lands of plaintiff, if any, was caused by an unprecedented flood in the year 1913. This was an Act of God, for which in law no recovery in damages can be had. The Act of God denotes natural accidents; su'ch as floods, earthquakes and tempests, and not accidents arising from the negligence of or any act of man. Tlie expression means something in opposition to the act of man.

It follows from what we have already said that it is the opinion of this court that we find no prejudicial error in the judgment of the common pleas court and that it should be affirmed.

Judgment affirmed.

Shields, J., and Patterson, J., concur.