MONTALBANO v. RAINBOW GARDENS (1934)

District Court of Appeal, Second District, Division 1, California.

MONTALBANO v. RAINBOW GARDENS, Limited.

Civ. 9474.

Decided: June 21, 1934

Joseph Musgrove, of Los Angeles (Thomas H. Cannan and Fred O. McGirr, both of Los Angeles, of counsel), for appellant. Bernstein & Spizer, of Huntington Park, for respondent.

Appellant Rainbow Gardens, Limited, having filed its brief on appeal from the judgment, respondent has presented his motion, under section 3 of rule V, to dismiss the appeal or affirm the judgment.

Respondent contends that the grounds of appeal are so unsubstantial as not to require further argument. But appellant has presented for discussion a question which should not be settled without further consideration. In appellant's statement of questions involved, it asks for decision upon its claim that under the given statement of facts the special police officer, who committed the assault, was not a servant of the proprietor of the dance hall acting within the scope of his employment as such servant. The authorities cited by appellant, and particularly the case of Maggi v. Pompa, 105 Cal. App. 496, 287 P. 982, give to this question an importance which, no doubt, will be recognized in respondent's brief.

The motion to dismiss or affirm is denied.

PER CURIAM.

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