Hack v. Sacramento City Junior College District

STURTEVANT, J.

In an action to recover damages for personal injuries, the trial court made findings in favor of the plaintiffs and from the judgment entered thereon the defendant district has appealed.

On the trial of the action considerable evidence was introduced without objection, which was outside of the issues made by the pleadings. In other words, the parties treated those subjects as being within the issues. In making findings, the trial court found on the issues made at the trial as well as those made by the pleadings. Such findings show the following facts:

Wilma L. Hack is a girl seventeen years of age and Lois R. Hack is her mother. On October 13, 1931, Lois R. Hack was appointed guardian

ad litem

of her daughter and commenced this action. The defendant is a duly organized school district located in the city of Sacramento. On September 4, 1931, Wilma Hack was a student duly enrolled in the school maintained by the defendant district. At about 4 P. M. on that date she was attending her class in the art building. The class was working on the subject of stage craft. In another room there were a number of “flats”, one of which was wanted in the classroom. The “flats” were parts of movable scenery consisting of wooden frames covered with canvas. Each one weighed about twenty-five pounds and was six by twelve feet square. There were twelve or fifteen of them and they were leaning up against a wall, one immediately adjacent to the other. The one that was wanted stood next to the wall. Mr. William G. Halstead, the teacher in charge, directed two students, Arthur Hunt and George Thorne, to go and get the flat. They went and, on observing the arrangement of the stack, one of the boys leaned the outer one farther outwards

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while his associate stood there and supported it. The work so continued and was in progress when Wilma Hack and another girl came by to get some paint as directed by the teacher. Just as they were passing the flats, the load had become so heavy that the student .who was attempting to support it stepped aside and allowed the fiats to fall. As the flats fell they knocked Wilma down and fell on top of her. It was found by the court that the stack of flats was not secured to the wall by means of a rope or otherwise. It was also found that the two students were physically incapable of and inexperienced in the handling of said flats. It was also found that “ . . . the said defendant, its servants, agents, and employees, at said time and place so negligently, recklessly and carelessly removed said flat from the pile of flats ...” that the flats fell on and injured Wilma. Other facts were found by the court stating the nature of the injury, etc. In response to an allegation contained in the amended answer the trial court found “That it is true that plaintiff Wilma L. Hack did not file a verified claim for damages in writing with the clerk or secretary of said Sacramento City Junior College District of Sacramento, California, within ninety days after the occurrence of the accident referred to in plaintiffs’ complaint and that it is true that no verified claim was filed containing the name and address of the claimant Wilma L. Hack or the dates and/or places of the accident and/or the extent of the injury and/or damages received.” In connection with the foregoing it may be observed that the plaintiffs’ complaint was filed October 13, 1931, and that the amended answer just referred to was filed on January 25, 1932, about one week before the trial was had.