185 P. 694 | Cal. Ct. App. | 1919
Lead Opinion
This is an appeal by the plaintiffs from a judgment against them, entered upon the granting of defendant's motion for a nonsuit. The action was one brought by the parents of John Figone, a minor, to recover damages for the death of said John Figone, who was shot by the minor son of the defendant, while said minor son (George Guisti) was in the employ of the defendant. On March 14, 1917, the defendant owned and conducted a saloon and restaurant business at 218 Washington Street, San Francisco. He employed a regular barkeeper, and his son George assisted him in the restaurant and also at the bar when the *608 rush of business made his help necessary. Defendant had a loaded revolver in the drawer under the bar counter, which was placed there as a protection against robbers. On March 14, 1917, John Figone entered the saloon. No one was present at this time except the two boys. What happened thereafter appears only from the testimony of George Guisti, who testified that the deceased threatened to "shanghai" him, and he, without being aware of the meaning of this language — and with a general impression that it meant something offensive — pulled out the revolver from the drawer and shot deceased.
It is clear that the action of the boy which caused the death of plaintiff's son was not within the course of the employment, but arose out of the personal quarrel of George Guisti with deceased. However, it is contended that the defendant, in employing in his saloon a boy who was a minor, violated the provisions of section
[1] It may be said that there is practically no dissent from the proposition that the violation of a statute or municipal ordinance is actionable negligence only as to a person for whose benefit or protection it was enacted, and that where the plaintiff does not belong to the class that the law was designed to protect, it follows that it will not avail to supply the element of duty owing. (Indiana etc. Coal Co. v.Neal,
[2] It appears, therefore, that the violation of the statute was a violation of a duty owing to the boy employed, but was not a violation of any duty owing to the plaintiffs, and, therefore, does not furnish a basis for a recovery in this action. Hence, plaintiffs' rights must be examined in the light of very well-settled legal principles. There are two theories which are urged by appellants — one involves a liability by reason of the relationship of principal and agent; and the other a liability by reason of the relationship of father and son. [3] The rule is entirely beyond question that a master is responsible for the torts of his servant only when they are committed within the scope of the employment. The fact, emphasized by the appellants, that the injury to plaintiffs involved the use of a revolver which is a dangerous instrumentality, and that it was by reason of his employment that George Guisti was enabled to get possession of this weapon, does not alter the rule, in this state, at least. For it has been held in the case of Stephenson v. Southern Pac.Co.,
[4] The second theory of appellants is that the father is liable for the tort of his son because he negligently placed him within reach of a loaded revolver which the son used to the injury of the plaintiffs. It is true there are several authorities in other states which might indicate that, in such states, such liability exists and that the question of negligence is one for the jury. We are able to find but one authority in this state upon the question involved here, but as that case stands unmodified and uncontradicted, we are bound by such authority and must decide this case in harmony therewith. That case is the case of Hagerty v. Powers,
In considering the admission made by the pleadings upon which appellants rely, we meet the first objection of appellants that the trial court erred in allowing an amendment to the answer after the nonsuit order had been made. We may concede this point to the appellants, and we shall discuss the pleadings as they were at the time of the granting of the nonsuit and before the amendment to the answer. They then contained an admission that on an occasion previous to the shooting, out of which this action arose, the boy, George Guisti, had drawn a revolver on a person having occasion to enter the saloon and that such fact was known to the father — the defendant. We call attention to the fact that the allegation of the amended complaint is that George Guisti drew the revolver in November without cause orprovocation upon a person having occasion to enter the saloon. The answer, while admitting the drawing of the revolver at that time, *612 denies that it was drawn without cause or provocation, and alleges that it was drawn with just cause and provocation, and denies that the father was aware that the boy would draw the revolver or discharge the same willfully, carelessly, and unnecessarily during his employment. These controverted allegations of the amended complaint are unsustained by the evidence. The only evidence offered upon the question of whether or not the defendant had reason to believe the boy would "draw the revolver or discharge the same willfully, carelessly, and unnecessarily during his employment," was the testimony of Robert Gotelli, as follows: "Q. Did you see any pistol in George Guisti's hand some time before that [the time of the killing]? A. Yes. Q. How long before? A. I could not tell you. About four or five months. Q. Where did you see the pistol in his hands, in the saloon? A. He was right there. He was only fooling around with another fellow. Q. Did you see the pistol in his hands? Where did he get that pistol? A. I could not tell you. I was eating lunch. I just spotted it, that is all, and I went out. I did not stay there very much. . . . Q. Did you see where George Guisti got the pistol from? A. I saw him when he was fooling around there but I could not tell you where he got it from. Q. Where did he have the pistol? A. He had it in his hand. Q. I wish you would state how he held the pistol. A. He held it in his hand and showed it to the otherfellow. I just spotted it there and I went out, I know they are always fooling around there. I don't know where he put it orwhether he pointed it at the other fellow. Q. What did the son say when he had the pistol in his hand? A. He said, 'Look out,' that is all I heard and I went out. Q. Is that all he said, 'Look out'? A. Yes. Q. Where was Mr. Guisti at that time? Was he in the restaurant or in the saloon? A. He was right there serving the people, he was over there by the free lunch counter, because I never saw him alone in there."
There is nothing in this evidence to show that young Guisti showed any inclination to injure anyone. We do not think the incident was such that a reasonable mind could say that because of it the employer had reason to believe the boy a dangerous person to have around the saloon or that the employer was negligent thereafter, because of such incident, in retaining the boy in his employ. The details of the incident *613
are indefinite and incomplete, but so far as the testimony goes, there is no evidence of any malice or of any danger to anyone. The witness stated that young Guisti showed the pistol "to the other fellow"; that he warned him at the same time to "Look out," and the witness does not know whether or not the pistol was pointed at anyone. [5] We are of the opinion that if the court had allowed the cage to go to the jury upon the admission and evidence herein discussed, and the jury had returned a verdict for the plaintiffs, the court would have been compelled to have set the verdict aside as unsustained by the evidence. The rule is expressed in the case of Geary v.Simmons,
We are, therefore, of the opinion that upon every theory of the case, the action of the trial court was proper.
The judgment is affirmed.
Nourse, J., concurred.
Dissenting Opinion
It is with regret that for the first time since the organization of this division of the court I am compelled to dissent from the opinion and conclusions of my associates in regard to the controlling facts of the case and the applicability to them of the rules of law which would be unquestionable in a case to which they might properly apply.
The appeal is from a judgment of nonsuit in an action for damages for death by wrongful act. The plaintiffs and appellants are the parents of John Figone, twenty years and five months old, who was killed by an employee of the defendant in the defendant's saloon, of which the employee was in sole charge. The shooting was done with a revolver which the defendant kept within ready reach back of his bar, as the defendant stated, so that if anyone tried to hold him up he would be ready for him. At the time of the shooting the defendant's employee, who was his own son, was seventeen years old, and had been in the defendant's employ some fifteen or sixteen months. It was a place where patrons dropped in to get a drink, and on being served with the drink, if they desired, *614
they were served with a free lunch, the same as in any other saloon. There was a separate dining-room. The boy who did the shooting was sometimes engaged in serving meals in the dining-room, sometimes in serving free lunch and making change in the saloon, and sometimes in serving drinks over the bar in the saloon. Section
The foregoing facts were before the court when the motion for nonsuit was made. They are stated most strongly for the plaintiffs. "Upon a motion for nonsuit, the evidence, and every inference that may be fairly drawn from it, must be viewed in the light most favorable to the plaintiff's claim. (Rauer v. Hertweck,
It has been held in this state that a father as such is not liable for the shooting of another child by his minor son, even though it was alleged that the father "willfully, carelessly, and negligently suffered, permitted, countenanced, and allowed his son to have possession of a loaded pistol." (Hagerty v. Powers,
In support of the judgment it is strenuously contended that the shooting of Figone was not in the course of the employment of Guisti. The familiar rule that an employer is not liable for the tortious act of his employee done outside of the course of employment is invoked, and the long line of cases announcing this salutary rule is cited. The rule has well-defined limitations. The law charges every man with responsibilities he may not evade on the ground that he is an employer. If, for instance, he does not act with the care which an ordinarily prudent man exercises in the selection of his employees, and injury results thereby, the master may not evade responsibility under the "course of employment" rule. The defendant left in sole charge of his saloon his seventeen year old employee, and as a part of the equipment *616 of the saloon and within easy reach was a revolver, which the master repeatedly stated he kept so that if anyone attempted to hold him up he would be ready for him. "Every person who acts through a representative is under obligation to discover the skill, experience and diligence of his agent, and if he selects one who is incompetent to perform the duties of the service, he will be accountable to any person who may have sustained damage by such incompetency. Indeed proof of known incompetence has been held by excellent authority to be a foundation for the allowance of punitive damages." This statement of the law is supported by numerous authorities. (18 R. C. L. 791.)
It is argued for the appellants that the employment of the boy in violation of section
Again, the "course of employment" rule does not apply where, even though the employer may have exercised ordinary prudence in the selection of his servants, knowledge is brought home to him of habits of wrongdoing, or infirmities of temper or lack or discretion, in the peformance of the duties placed upon them by the employer. One illustration of this rule is that "if a railroad company, for instance, knowingly and wantonly employs a drunken engineer, or switchman, or retains one after knowledge of his habits is clearly brought home to the company . . . and injury occurs by reason of such habits, the company may and ought to be amenable to the severest rule of damages." (Cleghorn v. New York Cent. etc. R. Co.,
It is argued that every man may own firearms and there is nothing unlawful in leaving them loaded. This is true, but "firearms are extraordinarily dangerous. A person who handles such a weapon is bound to use extraordinary care to prevent injury to others and is held to strict accountability for want of such care." (Rudd v. Byrnes,
The "scope of employment" rule is also limited by the impossibility of the master to avoid the consequences of an employee's use of dangerous agencies placed in his control by the master. In those cases, "responsibility is made to depend upon the fact that the wrong was made possible by the position of the employee and the instrumentalities furnished by the employer." (18 R. C. L. 787, 788.) "All courts agree that when the employer places in the hands and under the control of his employee an instrumentality of exceptionally dangerous character, he is bound to take exceptional precautions to prevent injury being done thereby. . . . According to the expressions of some opinions if the owner of an exceptionally dangerous agency places it in the hands of an employee, the negligence of the latter, either in failing properly to guard it, or in improperly using it, is the negligence of the owner, for which he is responsible. The employer is said to be answerable for the exercise of the employee's judgment in the use of the instrumentality." (18 R. C. L. 789.) It is argued that this rule does not exist in this state by reason of the decision in a case where a locomotive engineer negligently backed his locomotive toward a street-car on which the plaintiff was a passenger, and from which she jumped, believing herself to be in imminent danger of injury from an anticipated collision between the locomotive and the car, (Stephenson v. Southern Pacific Co.,
This court ought not decide as a matter of law that in the particular case the defendant was guilty of negligence. Neither upon the facts before the trial court could it decide that the master was not guilty of negligence. Giving the Stephenson case full weight as applying to all the facts in evidence there, and considering the rule which the writer of the article in Ruling Case Law said all courts recognized, the sole question presented on the motion for nonsuit was whether, upon consideration of all the facts in this case, the employment of the minor in violation of the penal statute, the placing him in charge of the extraordinarily dangerous instrument, the approval of his former misuse of it by the master, the retention of him in the same capacity and alone in charge of the weapon, might reasonable men honestly reach different conclusions as to whether or not the defendant had exercised that degree of care which ordinarily prudent men would have exercised. If different conclusions upon these facts might be reached by reasonable men, then under the elementary rules stated at the outset of this opinion, nonsuit should have been denied. The plaintiffs had the constitutional right in such a case and upon such facts to have the question of negligence as a matter of fact determined by a jury. "It is elementary that a motion for nonsuit is not to be granted where there is any substantial evidence which, with the aid of all legitimate inferences favorable to the plaintiff, would support a verdict or finding that the material allegations of the complaint are true." (Burr v. United *620 R. R. Co.,
It is argued that even though the employer were negligent, unless his negligence was the proximate cause of the injury, the nonsuit should have been granted. The question of proximate cause in such a case is also one of fact which should have been submitted to the jury. An injury that is the natural and probable consequence of an act of negligence is actionable, and such act is the proximate cause of the injury. It need not be the sole cause. If the acts constitute a continuous succession of events, so connected that they become a natural whole, liability will attach. There may be a succession of intermediate acts, each produced by the one preceding and producing the one following. (Milwaukee etc. Ry. Co. v.Kellogg,
After the nonsuit was granted, upon motion the defendant was permited to file an amendment to his answer in which, in place of the admission of the defendant of the drawing of the gun upon a patron of the saloon in 1916 and his attempted justification of the act, the defendant averred that he had no sufficient information or belief on the subject to permit him to answer the allegations in that regard, and he *622
denied that the revolver was so drawn by his employee, and further denied that he was ever aware that his employee drew his revolver at any time upon any person. While amendments should be liberally allowed, that liberality should only be exercised in furtherance of justice. (Code Civ. Proc., sec.
The judgment should be reversed and the amended answer stricken from the files.
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 December 15, 1919.
Angellotti, C. J., Shaw, J., Wilbur, J., and Olney, J., concurred. *623