Fowler v. Monteleone

• Decision Date: 12 March 1934
• Docket Number: 14834
• Citation: 153 So. 490
• Court: Court of Appeal of Louisiana — District of US
• Parties: FOWLER v. MONTELEONE

153 So. 490

FOWLER v. MONTELEONE

No. 14834

Court of Appeal of Louisiana, Orleans.

March 12, 1934

Rehearing denied April 23, 1934.

McCaleb & McCaleb, of New Orleans, for appellant.

Leander H. Perez and Prowell, McBride & Ray, all of New Orleans, for appellee.

OPINION

HIGGINS Judge.

Plaintiff, a member of a deer-hunting party, sued the defendant, another member thereof, to recover damages for personal injuries alleged to have resulted from the defendant negligently shooting him and also for medical expenses incurred.

Defendant admits that he shot the plaintiff, but denies that he was in any way at fault, and specially pleaded contributory negligence on the ground that the plaintiff had left his stand before the hunt was ended and placed himself in the underbrush in such a position as to give the appearance of being a deer.

There was judgment in favor of the plaintiff for the sum of $ 10,000, and the defendant has appealed.

On December 11, 1930, plaintiff and defendant, together with several friends, went to La Place, La., for the purpose of hunting deer. The party barricaded a rectangular wooded swamp section, which was bounded on one side by the Hammond highway, on the opposite side by the tracks of the Illinois Central Railroad Company, and on the remaining sides by the Peavine road and the Frenier Beach road. The dimensions of the rectangle were about one mile by three-quarters of a mile.

The party formed a barricade on the Peavine road; Vic Mailhes, Jr., being stationed near the intersection of that road with the Hammond highway. Next to him, in order, were the plaintiff, the defendant, Mr. Toups, Mr. Geisler, Mr. Marquette, and the last stand was taken by Mr. Vic Mailhes, Sr., where the Peavine road met the railroad tracks. The stands occupied by the parties were about 500 feet apart. The "piquets," those who follow the hunting dogs, and the dogs, were to chase the deer from the direction of the Frenier Beach road through this barricade. The party had hunted unsuccessfully in the morning and then resumed the hunt about 2 o'clock in the afternoon.

The rules governing the hunt were that a man should not leave his post for any appreciable distance, except the two end men, who might leave in order to assist in keeping the dogs within the bounds of the hunting area. The correct signal for the ending of the hunt was to be given by the captain, Vic Mailhes, Sr., and consisted of three blasts of a horn and three shots fired in succession and at about equal intervals. The hunt might also be ended by the captain going to each stand and bringing the members with him to one place. About 5 o'clock p. m. Vic Mailhes, Sr., left his stand, walked along the right of way of the Illinois Central Railroad Company, and then on the Frenier Beach road, where he picked up one of the party, Paul Georges, who was stationed there, and they drove back in an automobile to the point where the Hammond highway, which is paved, intersects the Peavine road, a straight dirt road partly covered by short grass. Mr. Mailhes, Sr., had instructed Georges to prepare to give the horn signal while he made ready to fire the shots as a signal that the hunt was over. Vic Mailhes, Jr., had walked in their direction and reached the point where they were standing at that time. Georges blew the horn several times, and it appears that plaintiff, believing that the hunt was ended, "broke" his gun, removed the shells, laid the gun on the road, and walked over into the swamp in the barricaded area for the purpose of gathering some mushrooms which he had seen while at his post. The defendant also heard the horn, but did not believe the hunt was over, and, having left his stand for some distance, his attention was attracted by the noise that plaintiff was making in picking the mushrooms. Dusk was approaching, the atmosphere was misty, and a large briar patch was between plaintiff and defendant, all of which prevented defendant from seeing clearly. Plaintiff was dressed in a regular khaki hunting outfit (similar to the color of a deer), with red rubber hip boots, and was in a stooping position, with a part of a white handkerchief protruding from his rear pocket, when he was shot in the left buttock and thigh by the defendant with buckshot, all nine shots taking effect. Defendant describes the shooting as follows:

"I heard a rustling in underbrush, I figure about 30 minutes or so, approximately, before I fired the shot. So I waited until I could hear it really distinctly I thought it was a rat or something. So I waited for 15 minutes approximately, and I still could hear it in the brush it was about on a forty-five degree angle. So I waited a while longer, maybe five or ten minutes, and the noise was still in there, and I moved off about 20 or 25 feet, off my stand. There was a big briar patch there about a hundred or two hundred feet long. I thought I would move over about 20 or 25 feet to try to get a good view of it, and as I did, I stooped and looked into the briars, and I could not see anything, and I stooped again, and I taken a shot the fourth time. I seen something brown crawling with something white either crawling or walking, so I shot, thinking it was a deer."

He further testified, on cross-examination:

"Q. Is it your custom to shoot at an object before you know what it is? A. Yes, sir, when you see something like that.

"Q. In hunting, do you shoot at an object that you see in the brush, without making sure of what it is? A. I have shot at objects in the woods, in the swamp, and the briars and killed deer already.

"Q. And you could not tell what they were before you shot? A. No.

"Q. And that is the way you hunt? A. Yes that is the way.

"Q. Is that your custom? A. Well I have done it."

The evidence is conflicting as to whether or not the hunt had been called off and whether or not the plaintiff had wandered in close proximity to defendant's stand at the time he was shot, but, assuming that the hunt was still in progress and that the plaintiff wandered from his stand into the barricaded area, within firing range of the defendant, a view most favorable to him, let us consider whether or not he was guilty of primary negligence in shooting his companion under the erroneous belief that he was a deer.

We have not been referred to any Louisiana case in point. Plaintiff brings his suit under article 2315, Rev. Civ. Code, which reads in part as follows:

"Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it."

Thompson, in his work on Negligence, in paragraph 780, states the rule with reference to the handling of lethal weapons as follows: "Persons having control and possession of fire-arms must exercise the utmost caution that harm may not come to others from such weapon. The degree of care is commensurate with the dangerous character of the weapons. The care is such as ordinarily cautious and prudent persons would exercise under similar circumstances."

In Cooley on Torts (3d Ed.) 1231, we find the following: "When one makes use of loaded weapons, he is responsible only as he might be for any negligent handling of dangerous machinery, that is to say, for a care proportioned to the danger of injury from it. A high degree of care is necessary in the use or manipulation of loaded weapons in the presence or vicinity of other persons and where injury results from a failure to exercise such care the defendant is liable."

In 53 A. L.R. p. 1205, of annotation to Webster v. Seavey, where 20 R. C.L. §§47 and 48, pp. 51 and 52, are cited, it is stated: "While no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say, in general terms, that every reasonable precaution suggested by experience and the known dangers of the subject are to be taken. The test of liability is the power of a prudent person to foresee injury; and this question, of course, depends on the particular circumstances of the case, including the nature of the instrumentality, the time, the place, and the status of the person injured." See, also, Sherman & Redfern on Negligence, vol. 3, par. 686; American & English Encyclopedia of Law (2d Ed.) vol. 12, p. 518.

In the case of Gibson v. Payne, 79 Ore. 101, 154 P. 422, Ann. Cas. 1918C, 383, the charge of the judge of the lower court to the jury to the effect that the weapon, a shotgun, was dangerous to life and limb, and the defendant was presumed to know it, and that the care and precaution on his part in order to avoid injury must be commensurate to the danger involved, was held to be correct. See, also, Weaver v. Ward, Hob. 134; Brittingham v. Stadiem, 151 N.C. 299, 66 S.E. 128; Tally v. Ayres, 35 Tenn. 677, 3 Sneed 677 (Tenn.); Morgan v. Cox, 22 Mo. 373, 66 Am. Dec. 623; Wright v. Clark 50 Vt. 130, 28 Am. Rep. 496; Knott v. Wagner, 84 Tenn. 481, 16 Lea 481, 1 S.W. 155 (Tenn.); Atchison v. Dullam, 16 Ill.App. 42.

In the case of Webster v. Seavey, 83 N.H. 60, 138 A. 541, 542, 53 A. L.R. 1202, the defendant shot the plaintiff, mistaking him for a deer. The court held the following to be a correct charge for the jury: "A hunter, though he may not reasonably anticipate finding human being in woods, is required to use reasonable care to identify object seen before firing at it in order to ascertain that object is deer and not man."

In Koontz v. Whitney, 109 W.Va. 114, 153 S.E. 797, the plaintiff had climbed into some bushes in order to pick wild grapes, and was shot by the defendant, who thought he was firing at a squirrel rustling in the bushes. The court said: "Reasonable care and negligence are relative terms, and the degree of care required of a sportsman using a firearm must be commensurate with the dangers to be avoided."

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