Figone v. Guisti

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

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 273f of the Penal Code; that under the decisions of our supreme court such violation of a penal statute constitutes negligence per se, and that the only other question remaimng to be determined is whether or not such violation was the proximate cause of the injury sustained by the plaintiffs. Section 273f of the Penal Code provides: “Any person whether as parent, guardian, employer, or otherwise . . . who . . . shall send, direct, or cause to be sent or directed to any saloon, gambling-house, house of prostitution, or other immoral place, any minor under the age of eighteen, is guilty of a misdemeanor.” Plainly, the defendant was violating the foregoing section when he sent his minor son into the saloon conducted by him to assist in any work there. It has been held by the supreme court of this state that where a defendant violates the express provisions of a statute, that violation itself, when proven, establishes his negligence per se. (Williams v. Southern Pac. Co., 173 Cal. 525 , 540, [ 160 Pac. 660 ]; Siemers v. Eisen, 54 Cal. 418 ; McKune v. Santa Clara V. M. & L. Co., 110 Cal. 480 , 485, [ 42 Pac. 980 ]; Stein v. United Railroads, 159 Cal. 368 , 372, [ 113 Pac. 663 ]; Driscoll v. Cable Ry. Co., 97 Cal. 553 , 565, [ 33 Am. St. Rep. 203 , 32 Pac. 591 ]; Bresee v. Los Angeles Traction Co., 149 Cal. 131 , 139, [ 5 L. R. A. (N. S.) 1059 , 85 Pac. 152 ]; Fenn v. Clark, 11 Cal. App. 79 , 81, [ 103 Pac. 944 ].) In all of the foregoing cases, however, and in all others which we have

[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, 166 Ind. 458 , [9 Ann. Cas. 424, and note, 77 N. E. 850 ].) “In an action based upon a neglect of duty, it is not enough for the plaintiff to show that the defendant neglected to perform a duty imposed by statute for the benefit of a third person, amd that he would not have been injured if the duty had been performed-, he must show that the duty was im

[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., 93 Cal. 558 , [ 27 Am. St. Rep. 223 , 15 L. R. A. 475 , 29 Pac. 234 ], that where a servant of the railroad company perverts the appliances of the company to wanton and malicious purposes to the injury of others, the company is not liable. In that case the servant was in charge of a steam engine (which has also been held to be a dangerous instrumentality) and he willfully and wantonly backed it toward a street-car which was crossing the railroad tracks, with the intent to frighten the passengers in the street-car without colliding therewith, and, as a result, some of the passengers became frightened and jumped from the street-car and were injured. The evidence is clear in the present case, as we have stated before,

[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 au-. thorities 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, 66 Cal. 368 , [ 56 Am. Rep. 101 , 5 Pac. 622 ], in which the complaint alleged that the father negligently, carelessly, and willfully countenanced his child in having a loaded pistol, which pistol the boy so carelessly used as to shoot the infant child of the plaintiff. A demurrer was interposed and sustained. The supreme court unheld the action of the trial court, stating in the opinion that the rule therein announced was in accordance with the common law. In view of this case, the second theory of the appellants is also without merit.

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 or provocation upon a person having occasion to enter the saloon. The answer, while admitting the drawing of the revolver at that time,

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

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.

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 de

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, 175 Cal. 280 , [ 165 Pac. 948 ]; Goldstone v. Merchants’ etc. Co., 123 Cal. 625 , [ 56 Pac. 776 ]; Hanley v. California etc. Co., 127 Cal. 232 , [ 47 L. R. A. 597 , 59 Pac. 577 ].)

It has been held in this state that a father ás 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, 66 Cal. 368 , [ 56 Am. Rep. 101 , 5 Pac. 622 ].) In the present case, therefore, there is no question concerning the liability of the defendant merely as the father of the boy who did the shooting. The defendant’s liability, if he was negligent, resulted from his relationship with the boy as employer.

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

It is argued for the appellants that the employment of the boy in violation of section 273f of the Penal Code constituted negligence per se. Generally, the violation of a penal statute which shows on its face that it was enacted for the protection of a particular class may not be invoked as showing negligence as a matter of law, except by one within the protected class. This rule also is limited. In a case frequently cited as a leading one upon the rule, it was expressly recognized that a co-employee of a child improperly employed was within the protection of the child labor law. In that case it was further fully shown that there was no causal connection between the violation of the statute and the injury of which complaint was made. It does not support the contention that the violation of such a penal statute closely connected with an injury to a third person cannot be relied upon in an action for negligence against the master under the rule requiring him to exercise prudence in the selection of competent employees. (Platt v. Southern Photo etc. Co., 4 Ga. App. 159 , [ 60 S. E. 1068 ].) Section 273f of the Penal Code might properly be considered as one passed for the benefit of the entire community, and so considered its violation would amount to negligence per se. It is not necessary so to determine in this case. If it be considered as one primarily passed for the protection of young Guisti, its evident purpose was to protect him and other minors from the evil effects of being sent to a saloon or other immoral place. As a fact only it was an expression, on the part of the people of the state as ordinarily prudent men of their views concerning the competency of minors employed in a saloon. For fifteen or sixteen months the employer had daily imparted to his youthful em

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 switch-man, 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., 56 N. Y. 44 , [ 15 Am. Rep. 375 ].) Recognizing the justice of this principle, it has sometimes been held that in permitting employees to indulge in vicious habits of work, the master is guilty of maintaining a nuisance. (Hogle v. Franklin etc. Co., 199 N. Y. 388 , [ 32 L. R. A. (N. S.) 1038 , 92 N. E. 794 ]; Fletcher v. Baltimore etc. Co,, 168 U. S. 135 , [ 42 L. Ed. 411 , 18 Sup. Ct. Rep. 35 , see, also, Rose’s U. S. Notes] ; Swinnarton v. Le Boutillier, 149 N. Y. 752 , [ 43 N. E. 990 ].) The reasoning on which these cases depend would apply equally to a case where a motorman, for instance, was retained after the master knew that on one occasion he had fallen in a fit while operating an electric car, or where a master retained a boy in charge of a loaded revolver, knowing he had on one occasion committed an unwarranted assault with it. While the fact of negligence in the final act may not be shown by proof of a similar act of negligence on another occasion, evidence of such an act is proper to show the employer’s knowledge of the employee’s unfitness for service. (18 R. C. L. 791.) In the present case the master knew of the wrongful use of the revolver by his minor employee before the shooting in question. He retained him as his employee, and on the day of the shooting left him in charge of the same instrumentality. While it is argued that the shooting of Figone was not in the course

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, 156 Cal. 640 , [20 Ann. Cas. 124, 26 L. R. A. (N. S.) 134 , 105 Pac. 959 ].) Might reasonable men differ in regard to the extraordinary care, or the lack of it, exercised by the master in leaving this loaded revolver within such handy reach of his minor empoyee, particularly when he knew of its former misuse 1

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 ear, (Stephenson v. Southern Pacific Co., 93 Cal. 558 ,

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 ease, 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, non-suit 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

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, 94 U. S. 469 , [ 24 L. Ed. 256 ]; Mack v. South Bound R. R. Co., 52 S. C. 323 , [ 68 Am. St. Rep. 913 , 40 L. R. A. 679 , 29 S. E. 905 ]; Atkinson v. Goodrich etc. Co., 60 Wis. 141 , [ 50 Am. Rep. 352 , 18 N. W. 764 ]; Purcell v. St. Paul R. Co., 48 Minn. 134 , [ 16 L. R. A. 203 , 50 N. W. 1034 ]; Bosqui v. Sutro R. Co., 131 Cal. 397 , [ 63 Pac. 682 ].) Courts have invariably declared their inability exactly to define the meaning of the words “proximate cause.” The supreme

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 tie had no sufficient information or belief on the subject to permit him to answer the allegations in that regard, and he

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.