"AN ACT OF GOD"

Evening Post, Volume CX, Issue 132, 2 December 1930, Page 12

"AN ACT OF GOD"

DAMAGE TO A SEWEE

EARTHQUAKE BLAMED

Damage to a sewer main in Lower Cuba street last year, resulting in sewage escaping into the basement of the premises occupied by Davis Bros., auctioneers, was found by the Chief Justice, Sir Michael Myers, in the case heard in the Supreme Court in which Davis Bros, claimed £290 19s 9d damages from the City Corporation, to have been an act of God. In spite of some evidence to the contrary, his Honour said that in his opinion the most, probable cause of the damage to the main was the earthquake in June of last year. ,Judgment was entered for the Corporation, and as no costs were applied for, no costs were ordered against the plaintiffs. The City Solicitor (Mr. J. O'Shca), with the Assistant City Solicitor (Mr. J. Lockie), appeared for the Corporation. The plaintiffs were represented by Mr. W. E. Leicester and Mr. L. K. "Wilson. At the conclusion of the plaintiffs' case yesterday afternoon, Mr. O'Shea moved for a non-suit. Ho contended that there had been no evidence showing negligence on the part of the Corporation officers. Mr. Wilson submitted that once having constructed a sewer the Corporation had a duty to exercise all statutory powers to prevent damago accruing from the sewer. In the present case counsel contended that the Corporation had failed to do that. His Honour said that probably it would be better to hear all the evidence. He provisionally over-ruled Mr. O'Shea's point. Mr. ,O'Shea then called evidence on behalf of the Corporation, and the case had not been completed when the Court rose late yesterday afternoon. This morning the evidence of two more witnesses for the Corporation was heard, after which expert evidence was given by two witnesses for the plaintiffs in rebuttal of the theory advanced by witnesses for the Corporation that the damage to the sewer was a result of the heavy earthquake in June, 1929. In answer to his Honour, Mr. Wilson said that the case for the plaintiffs was rested on an alleged breach of duty of care and on absolute liability. After hearing Mr. Wilson further, his Honour said he could not see that there was any proof of negligence on the part of tho Corporation, whether in the construction of the drain, the construction of the tramway, or the construction of the concrete slab which had been placed near the sower for protective purposes years before. He could not help thinking that notwithstanding what one of the witnesses for the plaintiffs had said, the most probable cause of the damage to the main was the earthquake of June, 1929. It appeared to his Honour that a break in the main was caused, following which there was gradual scouring and then an obstruction. There might be some other cause of the damage, but his Honour said he could not find it. "My sympathy is entirely with the plaintiffs," added the Chief Justice. "They have suffered damage, but the view I take is that they cannot succeed in their claim against the Corporation; but I cannot help that." His Honour said it was an unfortunate case, and he thought the Corporation might well take into, consideration the question of not applying for costs. Mr. O'Shea: "Well, sir, I don't ask for costs." , » Mr. Leicester said he appreciated Mr. O'Shea's generosity. His Honour: "He has acted as one expects a Corporation officer to act in such a matter."