(concurring specially). Section 1, chap. 162 Laws 1919 (Workmen’s Compensation Fund), provides as follows:
“The state of North Dakota, exercising herein its police and sovereign powers, hereby declares that the prosperity of the state depends in a large measure upon the well-being of its wage workers, and, therefore, for workmen injured in hazardous employments, and their families and dependents, sure and certain relief is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided.”
*785Section ii provides as follows:
“Employer's subject to this act, who shall fail to comply with the provisions of §§ 6 and 7 hereof, shall not be entitled to the benefits of this act during the period of such noncompliance but shall be liable to their employees for daimages suffered by reason of injuries sustained in the course of employment, and also to the personal representatives of such employees where death results from such injuries, and in such action the defendant shall not avail himself or itself of the following common-law defenses:
“The defense of the fellow-servant rule, the defense of the assumption of risk or the defense of contributory negligence.”
Section 20 provides as follows:
“When an injury or death for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than, the North Dakota workmen’s compensation fund a legal liability to pay damages in respect thereto, the injured employee, or his dependents, may, at his or their option, either claim compensation under this act or obtain damages from or proceed at law against such other person to recover damages.”
It is the contention of the defendant that the Compensation Act abrogates all remedies and causes of action theretofore existing by statute for death by unlawful act, and permits only the remedies and causes oi action stated in.such act; that § 11 of this act denominates only the personal representative as the proper party to maintain an action for death of the employee, against the employer. It may be conceded that the personal representative is a proper party to maintain such action. However, pursuant to the terms of the statute, is the maintenance of an action by. one of the dependents excluded? I am of the opinion, pursuant to § 20 thereof, that the maintenance of an action by a dependent of the employee is not excluded, but, on the contrary, is specifically permitted. In this case the father is a dependent, and, pursuant to the evidence introduced, was, in fact, a dependent of his deceased son.
From the record it appears that the defendant, a storekeeper, had in his employ the deceased son, 16 years of age, and another boy, 13 years of age. These boys at times were left in charge of the store. The loaded revolver was left, or permitted to be left, by the employer in a cash drawer to which the boys were directed to resort when necessary in trading operations. There it had not been casually placed; there it had *786been for years. Assuredly the inference of fact might be drawn that it was there for purposes of the employer’s business. The employer had warned the deceased son about this revolver. He gave no warning to the other boy. On the day when plaintiff’s son was killed, then, for the first time, the other boy knew of the presence of this revolver in such cash drawer. It appears in the evidence that the employer knew and stated that this other boy was a little careless and reckless. In view of the relation of master and servant existing betw'een the storekeeper and the boys, and the duties thereby imposed upon such master, may it be said, as a matter of law, upon this record that the master was free from negligence in the performance of his duties? I am of the opinion that it was for the jury to find, as a matter of fact, whether the master, in the performance of his legal duties, exercised reasonable care, in view of the circumstances and the youth of the boys, in permitting such revolver to be left in such cash drawer, accessible to such boys, without warning or instruction to each of the boys, knowing the careless and reckless characteristics of the younger boy. See 40 Cyc. 873; Ewing v, Lanark Fuel Co., 65 W. Va. 726, 65 S. E. 200, 29 L. R. A. (N. S.) 487; Southern Pacific Co. v. Hetzer, 135 Fed. 272, 68 C. C. A. 26, 1 L. R. A. (N. S.) 288; 18 R. C. L. 565-572. The judgment should be reversed, and a new trial granted.