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 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, 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 fatherthe 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 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 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.

BRITTAIN, J., Dissenting.-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 empley 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

sired, 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 273f of the Penal Code provides that "Any person, whether as parent, . . . employer or otherwise, . . . who as employer or otherwise, shall send, direct, or cause to be sent or directed to any saloon, . . . or other immoral place, any minor under the age of eighteen, is guilty of a misdemeanor." Figone was killed on March 14, 1917. In November, 1916, the boy who shot Figone drew the same revolver upon another person who entered the saloon for the purpose of patronizing it. A witness to that occurrence testified that at the time the boys were fooling, and that the defendant was present. In his answer the defendant admitted the revolver was drawn upon a patron of the saloon at that time, and asserted that it was for just cause and because of provocation. No facts were stated in the answer to support those legal conclusions. They amounted merely to an admission on the part of the employer that he knew his minor employee had drawn the deadly weapon, which he provided and kept in his place of business, upon a patron of his saloon, and that he, the employer, approved the act. The answer containing the admissions was regularly admitted in evidence without objection on the part of the defendant. In the saloon, at the end of the bar, was a small space, separated from the bar by curtains, to which patrons of the saloon retired for private conversation. This space was called "the office" in a statement made by the shooter to the police after his arrest. The only evidence of what occurred at the time of the killing was in this self-serving statement of young Guisti. He said: "I was washing glasses and I did not notice John Figone come into the office. And I was all finished washing glasses, I noticed him in the office. I said: 'Hello, John.' I said: 'How are you?' and he said some Sunday he was going to take me to San Jose and shanghai me. I did not know what the word means. I thought it had a vulgar meaning. I said: 'Oh, no, you are not.' He said: 'Oh, yes.' It was then I jumped behind the counter and took the revolver and held it pointed at him, and I said: 'You going to stop now?' And all of a sudden I seen

him laying on the floor hollering for help. I am not sure I pulled the trigger, but I heard the gun explode. At the time I pointed the revolver he was halfway up in his chair, and then I seen him on the floor crying for help." He further stated what he thought was meant by "shanghai," but it is impossible that he could have believed that Figone at that time and in that public place either could or would attempt the act which Guisti described.

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 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, 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