This is an original proceeding in this court to review an award of the Industrial Accident Commission in favor of Percy F. Ballinger, the employee, against Jake W. Gardner, his employer, for injuries received on December 19, 1943.

Jake'W. Gardner owned a cocktail bar at 1043 Broadway in Fresno. Ballinger worked for Gardner as day bartender. J. F. Blake was the night bartender. On December 19, 1943, Ballinger’s left ankle was broken by kicks inflicted by a Mr. Brooks whom Ballinger was ejecting from the premises.

The sole question presented here is whether or not the evidence sustains the finding of the commission to the effect that the injuries arose out of and in the course of Ballinger’s employment.

The evidence on this question is sharply conflicting and it seems to us that the contention of petitioner may be supported by a preponderance of the evidence and that the commission might well have decided the case in his favor although there is evidence to the contrary supporting the award.

The rules governing us under such circumstances are clearly set forth in Ledson v. Pacific Indemnity Co., 105 Cal. App. 328 [ 287 P. 566 ], as follows :

A decision of the question presented requires a brief summary of a portion of the evidence. As the commission accepted the evidence offered by Ballinger as true we will summarize the evidence supporting the award and will disregard evidence to the contrary although it was amply sufficient to have supported a decision in petitioner’s favor.

Ballinger’s regular hours were from eight o’clock in the morning to four in the afternoon. He was required to put the place in order and prepare for its opening at ten o’clock. He testified that it was frequently necessary for him to reach his place of employment by seven or seven-thirty in the morning in order to perform these duties.

The night bartender relieved Ballinger at four o’clock each afternoon. However, Ballinger had duties to perform after that hour. These consisted of cleaning and putting fresh water in the sinks, icing beer, and otherwise putting the place in order for the night man. He described some of his duties as follows:

During the afternoon of December 19, 1943, Brooks entered the cocktail bar and asked for a drink of liquor. This was refused by Ballinger because he thought Brooks was intoxicated. About three o’clock Brooks returned and again asked for a drink and was refused for the same reason. Ballinger told Brooks if he did not leave the place he, Ballinger, would put him out. Brooks replied, “I will get you when you get out from behind that bar.”

At about 3:45 o ’clock Mrs. Ballinger came into the place and took a seat at the bar to wait for her husband. Ballinger was relieved by Blake at four o’clock and proceeded with his duties of cleaning up and preparing the place for the night trade. Mrs. Ballinger asked for a package of cigarettes which her husband procured for her. She then asked him to join her in a glass of beer which he did, standing in front of the bar while drinking it. Ballinger described the subsequent events as follows:

Ballinger had not completed his duties and had not put the beer on ice when he was injured at about 4:30 o’clock p. m.

Section 62 of the Alcoholic Beverage Control Act, as amended (Stats. 1937, p. 2175; Deering’s Gen. Laws, Act 3796), makes it a misdemeanor for any person to sell, furnish or give away any alcoholic beverages to any obviously intoxicated person. A license may be revoked for obvious violations of the same act (§ 40). Thus Ballinger was not only performing a duty imposed upon him by law, but was serving the interests of his employer when he refused to serve Brooks and was acting within the scope of his employment in so doing.

It is obvious from the record we have quoted that the final quarrel and the injury of Ballinger had its inception in the refusal to sell Brooks a drink; that the injury was a result of that refusal in a continuance of that controversy by Brooks.

In a somewhat similar case this view was taken by the Court of Appeals of New York in Field v. Charmette Knitted Fabric Co., 245 N.Y. 139 [ 156 N.E. 642 ], where it is said :

McGrinder v. Sullivan, 264 App.Div. 640 [ 37 N.Y.S.2d 1 ], is factually similar to the instant case. There the injured employee was a bartender. While on duty he ejected an intoxicated customer from the premises. The customer said, “I will see you again.” After the employee had finished his work and had left the place of his employment he was injured by the intoxicated person. The court said :

While we have found no California case deciding the precise question here presented, on identical facts, there are cases tending to support the award. Some of them are summarized in Fireman’s Fund etc. Co. v. Industrial Acc. Com., 61 Cal. App.2d 335 [ 143 P.2d 104 ], as follows :

In the Zolkover case, supra, the Supreme Court followed the rule laid down by the Court of Appeals of New York in Field v. Charmette Knitted Fabric Co., supra, and said :

As there is substantial evidence in the record supporting the award we cannot disturb it here although we may regard the contrary evidence more convincing. (Zolkover v. Industrial Acc. Com., supra.)

The award is affirmed.

Barnard, P. J., and Griffin, J., concurred.

Petitioner’s application for a rehearing was denied March 28, 1946, and petitioner’s application for a hearing by the Supreme Court was denied April 25, 1946.