Figone v. Guisti

185 P. 694, 43 Cal. App. 606, 1919 Cal. App. LEXIS 876

• Court: California Court of Appeal
• Decided: October 17, 1919
• Docket: Civ. No. 2904.
• Status: Published

Opinions

LANGDON, P. J.

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 rush of business made Ms 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 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 been able to find, the violation of a statute has been held to establish negligence per se only in favor of one sought to be benefited by the violated statute. In other words, under the statute, a duty is owing to the persons coming within its protection, and as to such persons a violation thereof is negligence per se. The statute being considered here is plainly for the protection and benefit of the minor employee. It is a statute similar to those prohibiting the employment of children in certain dangerous occupations or for more than a stated number of hours each day. Such laws are enacted in the exercise of the police power for the protection and well-being of minors. (Williams v. Southern Pac. Co., 173 Cal. 538, [160 Pac. 660].) “It is a well-established principle that the violation of a statutory duty is the foundation of an action in favor of such persons only as belong to the class intended by the legislature to be protected by such statute. ’ ’ (Lepard v. Michigan Cent. R. Co., 166 Mich. 373, [40 L. R. A. (N. S.) 1105, 130 N. W. 668].) In the case of Platt v. Southern Photo Material Co., 4 Ga. App. 159, 164, [60 S. E. 1068, 1070], the court said: “In determining whether the violation of a statute is negligence so as to support an alleged cause of action, the court is called upon to examine the law in respect to its objects; for if it appears that, notwithstanding the violation, none of the consequences contemplated and sought to be guarded against have ensued; or that the plaintiff is not the person or does not belong to the class to whose benefit or for whose protection the statute was enacted, the court cannot declare that there is a case of negligence per se as to that cause of action or that plaintiff. ’ ’

[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 posed for his benefit and was one which the defendant owed to him for his protection.” (Kelly v. Henry Muhs Co., 71 N. J. L. 358, [59 Atl. 23], see, also, note to Gilson v. Delaware Canal Co., 36 Am. St. Rep. 802, at p. 817; Louisville & N. R. Co. v. Holland, 164 Ala. 73, [137 Am. St. Rep. 25, 51 South. 365, 366]; Southern Coal etc. Co. v. Hopp, 133 Ill. App. 239; Menut v. Boston etc. R. Co., 207 Mass. 12, [20 Ann. Cas. 1213, 30 L. R. A. (N. S.) 1196, 92 N. E. 1032]; Racine v. Morris, 201 N. T. 240, [94 N. E. 864, 866]; Everett v. Great Northern R. Co., 100 Minn. 309, [10 Ann. Cas. 294, 297, [9 L. R. A. (N. S.) 703, 111 N. W. 281].)

[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, that the shooting was entirely outside of the employment. It arose out of a private quarrel, and had nothing to do with keeping order in the saloon or furthering the master’s business. .Upon the theory of responsibility growing out of the relation of master and servant, we think the nonsuit was proper.

[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, 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 hoy 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 other fellow. 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 or whether 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 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 case 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, 39 Cal. 224, that a court is .justified in granting defendant’s motion for nonsuit after the evidence on both sides has been heard in a case, where, if the motion had been denied and a verdict found for plaintiff it would have been set aside as not supported by the evidence.

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.