Figone

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…

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 sired, they were served with a free lunch, the same as in any other saloon. There was…