Frace v. Long Beach City High School District

SHAW, J. pro tem.

Plaintiff was injured by the explosion of chemicals with which he was attempting to perform an experiment, and in this action seeks to recover damages for the injuries so received. A demurrer to his amended complaint was sustained with leave to amend, he did not amend, and he appeals from the ensuing judgment.

Since plaintiff declined to amend his complaint, we do not consider the possibility that any defects in it could be cured by amendment, but presume that the pleader has stated his case as strongly as it can be stated in his favor.

(Royal Ins. Co.

v.

Mazzei,

(1942) 50 Cal.App.2d 549, 555 [123 P.2d 586].) While the complaint should be liberally construed, with a view to substantial justice between the parties (Code Civ. Proc., sec. 452), that rule “does not, however, permit the insertion, by construction, of averments which are neither directly made nor within the fair import of those which are set forth. On the contrary, facts necessary to a cause of action but not alleged must be taken as having no existence.” (21 Cal.Jur. 54;

Feldesman

v.

McGovern,

(1941) 44 Cal.App.2d 566, 571 [112 P.2d 645] ;

Estrin

v.

Superior Court,

(1939) 14 Cal.2d 670, 677 [96 P.2d 340].)

From the amended complaint the following facts appear. The defendant district conducted a high school, consisting of several buildings, in one of which there was a small chemical

[569]

supply room. In this room chemicals, some of which would, upon admixture, burn and explode, were stored for the use of chemistry students in performing laboratory tests and experiments. The defendant Lewarton was employed by defendant district as janitor and custodian and as such had the care and custody of this supply room and the keys thereto. On several occasions, shortly before plaintiff was injured, Lewarton unlocked this supply room and permitted two high school students, named Murphy and McNanamy, to enter this room, and to remain there and leave without their being under observation, all of which was contrary to the rules of the school. These two students, although not authorized so to do, took from the storeroom potassium chlorate and phosphorus and kept these chemicals in the garage at the home of McNanamy, where plaintiff watched the other two boys experiment with them without injury. Plaintiff thereupon asked McNanamy if he could use the chemicals for an experiment, McNanamy gave plaintiff small quantities of them, plaintiff mixed them in a container and shook them, and from the resulting explosion received the injuries for which he sues. Plaintiff was, at the time, a boy of seventeen, and it is alleged that “by reason of their immature age, inexperience and lack of knowledge of chemicals neither the said McNanamy nor the plaintiff knew that use of said chemicals by them was dangerous and hazardous or would cause an explosion or that the use of said chemicals by plaintiff was likely to injure person or property.”