Duffey v. General Petroleum Corp.

California Court of Appeal Sep 26, 1949 No. Civ. 7669Published

Before: Adams

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Holding. The court held that the trial court did not abuse its discretion in allowing an amendment to the complaint, that the defendant waived objections to the measure of damages and the admission of insurance-related evidence, and that the jury's damage award was supported by the evidence.

Issues

Whether the trial court abused its discretion by allowing an amendment to the complaint to increase the amount of damages sought.
Whether the trial court applied an incorrect measure of damages for permanent injury to property.
Whether the admission of evidence referencing the defendant's liability insurance constituted reversible error.
Whether the jury's damage award was excessive.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The allowance of amendments to pleadings is within the discretion of a trial court.”

“We find no abuse of such discretion here.”

“Objection, therefore, cannot be made for the first time on appeal.”

ADAMS, P. J.

Plaintiffs, husband and wife, brought this action against defendant corporation for injuries to their premises alleged to have been sustained as the result of the contamination of their water supply by gasoline spilled by defendant’s employee when delivering gasoline to such premises to fill a 50-gallon tank maintained by plaintiffs for general use thereon. The original complaint, filed March 17, 1948, alleged damages in the sum of $2,100. Defendant denied any damage whatsoever.

At the beginning of the trial, on October 19, 1948, plaintiffs’ counsel moved to amend the complaint 'by increasing the amount of the alleged damage to $4,000, and the motion was granted. Defendant interposed an objection to the amendment,

[759]

but did not ask for a continuance of the trial by reason thereof. The jury returned a verdict for $4,000.

On this appeal it is conceded that there was sufficient evidence to support the implied finding of the jury that defendant and its employee were negligent. Errors of law, only, are relied upon for reversal.

The first alleged error is the allowance by the trial court of plaintiffs’ motion to amend the complaint by increasing the amount of the damages alleged. It is urged that it was made without notice and over defendant’s objection, that it took defendant by surprise and was inevitably prejudicial to it. No authority is cited and we find no merit in this contention. Defendant could not have been prejudiced by lack of notice, since it denied any damages at all. It made no motion for a continuance of the trial in order to permit it to make further preparation therefor, and it cannot be said that plaintiff's acted in bad faith or without just reason in making their motion since the evidence shows that after the filing of their complaint they made efforts to secure a water supply not contaminated, by drilling a new well in a different location, but found the water there contaminated also.

The allowance of amendments to pleadings is within the discretion of a trial court.

(Ray

American Photo Player Co.,

Duffey v. General Petroleum Corp.

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ADAMS, P. J.

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