way, but not with a gun. As between Mrs. Weiler and her husband, the former seems to have been more outspoken and active in the part which the Weilers took in the affair. Just before the shot was fired, by the testimony most favorable to the defendant, it would appear that Weiler pulled his wife back and advanced toward the defendant, whereupon the defendant shot and killed him. As we have before noted, we can find no testimony tending to show in the slightest degree that Weiler on the night in question was armed. After the shooting had occurred blood was seen upon the back of the head and neck of the defendant, and it was claimed that this was caused by the attack of Mrs. Weiler, some of the witnesses expressing the view that defendant was so attacked by Mrs. Weiler before he fired the shot, while the evidence for the prosecution was to the effect that, after her husband had been shot to the ground, Mrs. Weiler made an attack with her hands and fists upon the defendant. No briefs were filed in support of this appeal, but at the oral argument our attention was called to a certain instruction given to the jury, as constituting the chief ground of error claimed. That instruction had to do with the right of self-defense. We may add to the statement of the testimony, that by some of the evidence for the defendant it was said that Mrs. Weiler, when she attacked the defendant, had something "shining" in her hand. The court, among other instructions, gave the following: "The jury are instructed that, though the right to take life, or to use a deadly weapon, in selfdefense, is unquestionable, yet one on whom another is making a mere assault with the fist, not with intent to kill, or to do great bodily harm, and who is not deceived as to its character, is not justified in taking life, or in using a deadly weapon in selfdefense." It is contended that by this instruction the court advised the jury, first, that an assault with the fist would in no case justify the use of a deadly weapon in repelling such assault, and, second, by the instruction it was intimated to the jury that the only assault made upon the defendant by the Weilers was one with the fist. We do not think that the objection to the instruction is well taken. We find upon examining the charge, in other of its statements, as the court gave it, that the jury was very fully advised as to the right of a person assaulted to repel the assault with force, even to the extent of using a deadly weapon. By instruction 49 the jury was told: "To justify a homicide committed by one in resisting or repelling an assault or battery committed or attempted to be committed upon his person by another, it must appear to the slayer as a reasonable man that the danger threatened, if any, was immediate and sufficient to excite the fears of a reasonable person that he was in danger of receiving death or great bodily harm, and that he acted under the influence of such fears and not in a spirit of revenge; and it must further appear that the degree of resistance was not clearly disproportionate to the nature of the injury offered or given— that the force used in repelling or resisting the assault or battery was not clearly greater than necessary." Under this instruction the jury must plainly have understood that the court intended to

advise it that even an assault or battery might, under proper circumstances, sufficiently defined, furnish justification for the use of a deadly weapon and the killing of the assailant. Instruction 51 enumerated specifically the various conditions under which homicide is justifiable. [1] In our view of the case, the instructions were full and fair and not misleading.

No other alleged error is called to our attention which warrants particular discussion.

The judgment and order are affirmed.

We concur:

CONREY, P. J.

SHAW, J.

JAMES, J.

Civil No. 2580. Second Appellate District. August 3, 1918. WILLIAM HENRY KELLAR, Guardian of the Estate of Byron H. Kellar, a Minor, Plaintiff and Appellant, v. CITY OF LOS ANGELES, J. D. RADFORD, J. E. COWLES, F. B. SILVERWOOD, C. R. RAITT, C. S. LAMB and ARTHUR A. DIETZ, Defendants and Respondents.

[1] MUNICIPAL CORPORATIONS-OPERATION OF SUMMER CAMP FOR COMPENSATION.-Where a city operates a summer camp in the mountains for compensation it acts in a private and not governmental capacity.

[2] PLEADING ACTION FOR NEGLIGENCE ALLEGATIONS AS TO CONTRACT-PURPOSE-MISJOINDER OF CAUSES OF ACTION.-In an action against a city for negligence in failing and neglecting to provide plaintiff proper care and attention while a boarder at a summer camp conducted by the city, allegations setting out the contract between the plaintiff and the city and the payments made by the plaintiff in accordance therewith constitute potential factors in determining whether the conduct of the business was governmental or private and do not render the complaint obnoxious to demurrer upon the ground of misjoinder of causes of action.

Appeal from the Superior Court of Los Angeles County-Frank G. Finlayson, Judge.

For Appellant-C. Ibeson Sweet.

For Respondents-Albert Lee Stephens, City Attorney, and W. D. Spalding, Deputy City Attorney.

Byron H. Kellar, a minor 16 years of age, by his guardian, sues herein to recover damages on account of alleged negligence of defendants in that they failed and neglected to give him proper care and attention following an injury suffered by him while a resident and boarder at a summer camp which the city of Los Angeles, through defendants other than the city, who constituted its board of playground commissioners, established and conducted in the mountains some distance from the city.

To the third amended complaint defendants interposed a demurrer which presented the issue as to the city's liability. The demurrer was sustained and plaintiff declining to further amend his complaint, judgment went for defendants, from which plaintiff prosecutes this appeal.

Among other things, the complaint alleged that during the year 1914 the city established, and, through its board of playground commissioners, conducted a summer camp in the San Bernardino mountains, "for the purpose of giving any children of said city, at certain prescribed charges to be paid by said children to said city, a vacation, with care, board and lodging at said camp"; that on July 10th defendants agreed that for two consecutive weeks, commencing July 20th, they would receive, care for, board and lodge said Byron H. Kellar at said camp for the consideration of $7.50, to be paid by him to said city, $3.75 of which sum, constituting the first installment thereof, he paid to the city on July 13th, and on July 20th he went to said camp as such resident and boarder, where he remained for six days under the control, care and custody of defendants, during which time he sustained the injury, which condition caused thereby

necessitated medical care and attention, all of which defendants neglected to provide, as a result of which the boy was subjected to great pain and suffering, with incident illness following, alleged to have been due to his treatment by defendants.

Respondent city, conceding the complaint alleged the commission of acts on the part of defendants which constituted negligence and proof of which, if committed by an individual or corporation, would entitle him to recover damages sustained by reason thereof, nevertheless insists that the conduct and operation of this summer camp was in its governmental capacity, by reason of which, in the absence of statutory provision upon the subject, the rule of decision is that which exists under the common law, viz., that the city is not liable for the alleged neglect. Appellant admits the correctness of the court's ruling, if this contention be sustained.

While not made mandatory, the charter of the city of Los Angeles empowers it to provide playgrounds and "establishments, institutions and places, whether situated inside or outside of the city limits, which are necessary or convenient for promoting the health, morals, education, or welfare of the inhabitants of the city, or for their amusement, recreation, entertainment, or benefit". These are broad powers wholly distinct and disconnected, in part at least, from the usual and accepted definition of governmental functions when applied to a city. Indeed, it may be said the charter in conferring rights and powers upon the city specifies every purpose and enterprise which could be made the subject of human endeavor, except that it is not expressly authorized to engage in the business of banking. When a city having such powers undertakes to exercise the same by engaging in lines of business, wholly disconnected from any function pertaining to its government, and for the product of which business or service rendered it exacts compensation, it should as to liability be subjected to the same rules that apply to private corporations engaged in such enterprises.

When authority exists therefor, free public playgrounds established by a city within its boundaries and the operation and management thereof are in character like public parks, as to the control and management of which, since they are free and for the public welfare, the city acts in its governmental capacity. The question presented for solution, however, is not whether the control and operation of a playground thus described is a governmental function, but whether the conduct of the city in establishing and operating a mountain country resort, the right of access to which is not open to all of its inhabitants, but restricted to those only who, under contract so to do, pay a fixed price for the care and accommodation furnished, constitutes an exercise of such governmental function. If so, then the city might with equal propriety, under a claim that it was acting in its governmental capacity, conduct a seaside hotel, restricting the accommodations to those of its inhabitants who paid such rates as it might fix for its guests. Since, as shown by the allegations of the complaint, a private corporation or individual might conduct

it, the operation of the summer camp in question partakes of the nature of a private business enterprise operated for emolument or revenue, to which no governmental attributes attach. The authorities are uniform that where property owned by a city is leased or rented to private individuals, or the business, such as a lighting plant, transportation or water service, is conducted for revenue, the municipality is held to be acting in a private and not governmental capacity. (Davoust v. City of Alameda, 149 Cal. 75; Esberg Cigar Co. v. Portland, 34 Ore. 282; Chafor v. Long Beach, 163 Pac. 670, and cases there cited.) In an early English case (Cowley v. Mayor etc. of Sunderland, 6 H. & N. 565), the city was held liable for personal injuries suffered by reason of the negligent and dangerous construction of machines in a public washhouse which it had by statute been authorized to erect and for the use of which the plaintiff and other persons using the same were required to pay a compensation. [1] Our conclusion is that the facts alleged, if true, show that in its operation of this summer camp for compensation the city exercised no governmental function.

[2] We perceive no merit in the contention of respondent that the complaint is obnoxious to the demurrer interposed upon the ground of misjoinder of causes of action, one for breach of contract wherein it is alleged that the city for a consideration failed to provide plaintiff care and attention in accordance with its agreement, the other for the tort. Clearly the purpose of alleging the agreement and the payment made by plaintiff in accordance therewith was to show that defendants were operating a camp for revenue, which, as stated by all the authorities, constitutes a potential factor in determining whether the conduct of the business be governmental or private.

The judgment is reversed.

We concur:

CONREY, P. J.

JAMES, J.

SHAW, J.

Civil No. 1806. Third Appellate District. August 12, 1918. E. W. DOUGHTY, as Trustee of the Electric and Garage Company (a Corporation), a Bankrupt, Plaintiff and Appellant, v. FRANK MOORS, J. R. CLARK and C. W. CROUCH, Defendants and Respondents.

cor

[1] PLEADING-SALE OF PROPERTY OF INSOLVENT CORPORATIONPAYMENT OF PRIVATE OBLIGATIONS AS CONSIDERATION-FRAUD-DAMAGE-SUFFICIENCY OF COMPLAINT.-A complaint by the trustee of an insolvent corporation against the majority stockholder of a poration and others connected with an alleged fraudulent disposition of corporation property which, while admitting that the original agreement for the sale of the property was made in good faith and free from any element of fraud against the corporation or its creditors or stockholders, proceeded on the theory that the payment by the purchaser under a subsequent agreement of the private joint obligation of the majority stockholder and another as part consideration for the purchase of said property was the culmination of a fraudulent conspiracy between the parties to de