Page:North Dakota Reports (vol. 48).pdf/805

 Clifford Olson to cash the check. This was the first time that young Clements had opened the drawer, though he was authorized to use it. While Olson was engaged in cashing the check from the money in this drawer, the Clements boy took the loaded revolver out of the cash drawer, rested it on the edge of the drawer, and it went off, the bullet entered the abdomen of Clifford Olson, who was standing nearby; he died a few minutes later as a result of the injury.

Defendant knew the gun was in the drawer, and had warned Clifford Olson about it, but not Herbert Clements, and knew that the Clements boy was somewhat careless and reckless. The Olson boy was in good health, was in the second year high school at Walhalla, and during vacation was earning $40 per month, which was contributed to the support of his parents and the family. The plaintiff is the father of Clifford Olson, and besides Clifford there were two other children, whose ages were 11 and 3 years respectively.

Plaintiff’s first cause of action is based upon the alleged negligence of the defendant in carelessly and negligently permitting a loaded revolver to remain in one of the cash drawers in his store where he employed two young boys within whose reach in one of the cash drawers was the loaded revolver, and, further, that the defendant was negligent in employing a reckless and careless servant, the Clements boy.

For his second cause of action plaintiff alleges a failure of defendant at any time prior to the 10th day of August, 1919, to apply to the Workmen’s Compensation Bureau of the state of NorhNorth [sic] Dakota for classification as an employer, and his failure to comply with the provisions of law in that respect, which is chap. 162 of the Session Laws of 1919, and further sets out his failure to pay a premium as a member of the Compensation Fund to be applied in compensation of injured workmen while engaged in hazardous employment, and further avers that Clifford Olson was killed while engaged in the performance of his duty, and while within the course of business of his employer.

There is one assignment of error only that requires any consideration. It is that the court erred in granting defendant’s motion, made at the close of appellant’s case, that the jury be directed to return a verdict in defendant’s favor for a dismissal of the action. Plaintiff bases his right to maintain the action on § 8323, C. L., as amended by chap. 106 of the Session Laws of 1917, which gives him that right where there is a cause of action under § 8321. But one of the principal questions