H. P. Smith Co. v. Suttich

[541]

BURNETT, J.

—Defendant was the owner of a warehouse built out over the water of the bay of San Francisco. Plaintiff, under agreement with defendant, had certain hay stored in said warehouse and on December 10, 1906, during a storm, the warehouse was demolished and the hay fell into the water. The plaintiff alleged that the accident was caused by defendant’s negligence in allowing the piling and supports of the warehouse to become decayed and out of repair and in failing to provide proper protection from the wash of drift against it, and it prayed for damages in the sum of $3,500.

Defendant denied that the warehouse was unsafe or unfit in any respect for the storage of the .hay. By way of cross-complaint it was alleged that the agreement between the parties was that only two hundred and fifty tons should be stored in said warehouse, but in violation of said agreement plaintiff put therein four hundred and sixty-one tons of hay, and that this over-crowding, in connection with the act of the plaintiff in leaving open the large doors of the warehouse, thereby permitting the high winds prevailing to enter and lift the roof from its supports, was the proximate cause of the accident. Defendant sought to recover $6,000 for the destruction of the warehouse and $250 for the storage agreed to be paid. The jury found for defendant in the sum of $230.50.

1. At the close of the trial plaintiff asked leave to amend the complaint by adding an allegation charging improper construction of the warehouse and negligence in not securely fastening the roof to the walls of the building. The purpose of this, as claimed by plaintiff, was to make the complaint conform to the evidence. The motion was denied.

The power of the court to allow amendments that causes may be tried and determined upon their merits should undoubtedly be liberally exercised.

(Farmers’ Bank

v.

Stover,

60 Cal. 396;

Marr

v.

Rhodes,