167 P. 900 | Cal. Ct. App. | 1917
This is an appeal from a judgment against the defendant for the sum of $925, being the amount of damages claimed to have been suffered by the plaintiff by reason of the destruction of his house and premises at Melrose in Alameda County through the explosion of a powder magazine on the premises of the defendant.
This is one of a series of cases which grew out of that explosion, two of which were Kleebauer v. Western Fuse Explosives Co.,
The amended complaint appears to have been drawn on the theory that the defendant was guilty of negligence in the employment of an unfit and incompetent employee whose act exploded the powder magazine, and also upon the theory that the powder magazine as maintained by the defendant was a nuisance. The act of the Chinaman in firing the magazine is out of the case since the evidence shows without conflict, *422 and the court expressly finds, that the defendant was not responsible for its employee's act in causing the explosion.
As to the nuisance theory it is obvious that the complaint as amended was drafted upon the theory that the mere keeping of a large quantity of explosive powder in a thickly populated neighborhood, irrespective of the manner in which the magazine in which it was stored was constructed was a nuisance per se.
But before the case came on for trial the supreme court, in the case of Kleebauer v. Western Fuse Explosives Co.,
It thus appears that neither this particular evidence nor the finding of the court based thereon was responsive to any issue in the case. It has been repeatedly held by the supreme court that under those circumstances the complaint cannot be looked to in support of the judgment. "Where," says the supreme court in Chetwood v. California Nat. Bank,
But it is also well settled that when the trial court and the parties to an action proceed to trial upon the theory that there is a material issue, and the court upon the evidence addressed *423
to that issue, and received without any or without a sufficient objection, finds in accordance with that evidence, a party will not be allowed for the first time on appeal to say that there was no such issue. (Schroeder v. Mauzy,
With regard to this contention the record discloses that the defendant several times objected to this character of testimony, but only once included in the objection that the evidence was not responsive to any issue in the case; and that in a motion for nonsuit made by the defendant, it did not include as a ground thereof the insufficiency of the complaint to cover this aspect of the nuisance theory.
We do not think that the defendant intended to conceal the real nature of its objection to this testimony, especially as the rule in the Kleebauer case, apparently responsible for the offer of this testimony, had been announced prior to the trial of the case at bar, and must have been in the mind of counsel both in the offer of testimony and the making of objections thereto. We think under these circumstances the plaintiff was sufficiently apprised of the nature of the objection, and could, if he so desired, have requested leave to amend his pleading, which he failed to do. In the state of the pleadings, and in the face of the objection made, the evidence as to the alleged improper construction of the magazine should have been excluded by the court.
The fact that the defendant introduced testimony in rebuttal upon this same point does not now estop it from claiming that the testimony was erroneously admitted over its objection. InWashington Township etc. Co. v. McCormick,
The judgment is reversed.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 8, 1917.