
    ERNST v. GENERAL REFRACTORIES CO.
    No. 11654.
    United States Court of Appeals Sixth Circuit.
    Feb. 9, 1953.
    
      Jesse K. Lewis, Lexington, Ky., for appellant.
    Thomas D. Theobald, Jr., Grayson, Ky., and LeWright Browning, Ashland, Ky., for appellee.
    Before MARTIN, McALLISTER and MILLER, Circuit Judges.
   PER CURIAM.

This cause was considered by the Court on the record, briefs and oral argument of counsel for the respective parties;

And the Court being of the opinion that the findings of fact of the District Judge are fully supported by the evidence and are not clearly erroneous, and are accordingly accepted on this appeal;

And, that the relocation and construction of State Highway No. 174 was the official act of the Highway Department of the Commonwealth of Kentucky acting through the appellee by virtue- of its contract with the appellee, and that any damage resulting to appellant’s property by reason thereof, appellant’s action not being based on any alleged negligence on the part of the appelleé, is not chargeable to the appellee; Miller Construction Co. v. Collins, 269 Ky. 670, 108 S.W.2d 663; Combs v. Codell Construction Co., 244 Ky. 772, 52 S.W.2d 719;

And, being further of the opinion that evidence on behalf of the appellee with respect to the unprecedented nature of the rainfall and resulting flood was properly admitted even though such fact was not pleaded by it as an affirmative defense; Chesapeake & Ohio Ry. Co. v. Carmichael, 298 Ky. 769, 184 S.W.2d 91; Rule 15(b), Rules of Civil Procedure, 28 U.S.C.A.; Hutchins v. Akron, Canton & Youngstown R. Co., 6 Cir., 162 F.2d 189, 192;

And, that because of the unprecedented nature of the rainfall and resulting flood, except for which the damage to appellant would not have occurred, the appellee is not liable for such damage; Chesapeake & Ohio Railway Co. v. Carmichael, supra; Fife v. Chesapeake & Ohio Railway Co., 307 Ky. 541, 211 S.W.2d 854; Russell Fork Coal Co. v. Hawkins, 311 Ky. 449, 223 S.W.2d 887.

It is ordered that the judgment of the District Court be affirmed.  