Johnson v. Butterworth

• Decision Date: 02 October 1934
• Docket Number: 32826
• Citation: 180 La. 586,157 So. 121
• Court: Louisiana Supreme Court
• Parties: JOHNSON v. BUTTERWORTH

157 So. 121

180 La. 586

JOHNSON v. BUTTERWORTH

No. 32826

Supreme Court of Louisiana

October 2, 1934

Judgment of Court of Appeal set aside, judgment of district court reinstated and affirmed, and plaintiff's suit dismissed.

H. P Viering, of New Orleans, for plaintiff.

James G. Schillin, of New Orleans, for defendant.

OPINION

O'NIELL, Chief Justice.

The question in this case is whether the parents of an infant too young to be deemed guilty of an offense or a quasi offense, are liable for damages for bodily injuries inflicted by the infant upon a third person, there being no charge of fault or negligence on the part of the parents.

The plaintiff avers that her occupation is that of a nurse; that she was employed by the defendant, Bruce Butterworth, to nurse his infant daughter; and that, on a certain occasion when she, the nurse, was performing the duties of her employment and attempted to take the child into her arms, the child "displayed a vicious temper" and bit her on the arm, inflicting a wound which caused great pain and compelled her to lose twenty-three days of employment. She claims $ 1,000 damages for the alleged physical suffering and loss of wages. The age of the child is not stated in the petition; but it is not alleged that she was old enough for her conduct to be deemed culpable; and in fact it appears and is not disputed that she was exactly three years and two months old on the date on which she is said to have bitten the nurse.

The district judge dismissed the suit on an exception of no cause of action. The Court of Appeal reversed the judgment and ordered the case remanded for trial. 152 So. 166; 153 So. 58. The defendant has brought the matter here on a writ of review.

The suit is founded upon the plaintiff's contention that article 2318 of the Civil Code makes the parents liable for any act of their minor child that causes damage to another person, even though there is no fault or negligence on the part of the parents, and no offense or quasi offense or negligence, imputable to the child. The article, which through translation has lost some of its grammatical expression, provides:

"The father, or after his decease, the mother, are responsible for the damage occasioner, by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.

"The same responsibility attaches to the tutors of minors."

In the French text of the article (2297) in the Code of 1825, the language, translated literally, is: "The father, and after the death of the husband the mother, are responsible for the damage caused by their minor children, not emancipated," etc. In the Code Civil of France in article 1384, from which the article in the Louisiana Code was taken, there is no such qualification as "not emancipated," and the liability of the parents for damages caused by their minor children is limited to cases where the children are "residing with them." The literal translation of that paragraph of the article of the French Code is: "The father, and after the death of the husband the mother, are responsible for the damage caused by their minor children residing with them." When this paragraph was adopted in the so-called Code of 1808, or "Digest of the Civil Laws in Force in the Territory of Orleans," in book 3, tit. 4, § 2, art. 20, under the heading "Of Quasi Crimes or Offenses," the language was changed so as to specify that the parents were responsible for only the offenses -- "des delits" -- committed by their minor children, viz.: "Le pere, et la mere apres le deces du mari, sont responsables des delits de leurs enfans mineurs." The words "des delits" were translated into "the delinquency," which is one meaning of the word "delit"; but the more accepted meaning of the word "delit," and the meaning which fits better into the context, is "offense"; for we find in the same French dictionary the term quasi delit defined as "injury caused involuntarily by imprudence or negligence." All of which indicates that the intention was to make the parents responsible for damages caused by the fault or negligence of their minor children, but not for damages caused by their minor children without any fault or negligence on the part of either the parents or the children.

The exception of no cause of action in this case -- or what is termed in other jurisdictions the general demurrer -- is based, primarily, upon the proposition that a child under four years of age cannot be deemed guilty of an offense or a quasi offense, and that, as there is no liability for damages for tort without fault or negligence on the part of some one, there is no liability on the part of the parents of a child under four years of age, for damages for an act of the child causing injury to a third person, unless there is fault or negligence on the part of the parents.

It is well settled in Louisiana that the doctrine of contributory negligence does not apply to a child under four years of age. Hamilton v. Morgan's L. & T. R. & S. S. Co., 42 La.Ann. 824, 8 So. 586; Thorp Westerfield et al. v. Levis Bros., 43 La.Ann. 63, 9 So. 52; Barnes v. Shreveport C. R. Co., 47 La.Ann. 1218, 17 So. 782, 49 Am. St. Rep. 400; Rice v. Crescent City R. Co., 51 La.Ann. 108, 24 So. 791; Danna v. Monroe, 129 La. 138, 55 So. 741; Palermo v. Orleans Ice Mfg. Co., 130 La. 833, 58 So. 589, 40 L. R. A. (N. S.) 671.

It is argued for the plaintiff that the rule -- which is conceded to be well established -- that a child under the age of four years is not responsible for his or her negligence -- or contributory negligence -- does not mean that a child under four years of age cannot be guilty of negligence or contributory negligence, but means merely that a child that young is not legally responsible -- and cannot be held financially liable -- for his or her fault or negligence. But that argument is not consistent with the provisions of the Civil Code declaring that a minor is liable for damages resulting from an offense or a quasi offense committed by him. Article 1785 declares: "The obligation arising from an offense or quasi offense, is also binding on the minor." Article 1874, referring to the obligations of a minor, declares: "He is not relievable against obligations resulting from offenses or quasi offenses." And article 2227 repeats the statement, but adheres to the French word restituable, meaning "entitled to relief," viz.: "He is not restituable against the obligations resulting from his offences or quasi offences." All of these articles were taken literally from the Code Civil Francais; and they were declared to hold a minor liable for his tort, in Lutcher & Moore Cypress Co. v. Schexnaydre, 11 La.App. 72, 122 So. 911, and in Kern v. Knight, 13 La.App. 194, 127 So. 133. It is to be observed that these articles of the Code, which hold minor childrenliable for damages resulting from their offenses or quasi offenses, do not except very young children, or fix a minimum age limit. Hence the rule, established by the jurisprudence, that a child under the age of discretion is not chargeable with negligence, or contributory negligence, is not consistent with the idea that a child that young, though not responsible for his negligence or his offenses or quasi offenses, may be deemed legally guilty of negligence or of an offense or a quasi offense for which the parents may be held liable, without any fault or negligence on their part.

The principal reason given for the ruling by the Court of Appeal in this case, that the parents of a child under four years of age are liable for damages for an injury inflicted willfully by the child upon a third person, without any fault or negligence on the part of the parents, is that, in the transcribing of article 1384 of the French Code, as article 2297 (now 2318) of the Louisiana Code, there was omitted the proviso, in article 1384 of the French Code, that the parents of a minor child are not liable for damages for a tort committed by him if they can prove that they could not have prevented the act which caused the damage. But that difference between article 1384 of the French Code and article 2318 of the Louisiana Code, with reference to the liability of parents for damages caused by the acts of their minor children, is entitled to explanation. In the first place, the proviso in article 1384 of the French Code, that the parents are not liable for damages done by their minor children unless the parents could have prevented the act that caused the damage and failed to prevent it, has nothing whatever to do with the question, whether the parents -- without fault or negligence on their part -- are liable for damages done by a minor child too young to be deemed guilty of an offense or a quasi offense. In the second place, this difference between article 1384 of the French Code and article 2318 of the Louisiana Code, with regard to the liability of parents for torts committed by their minor children, seems to have resulted merely from the arranging of the several paragraphs of article 1384 of the French Code into separate articles in the Louisiana Code; and it is possible that this result, although of some effect, was accidental, as we shall proceed to explain.

Article 1384 of the French Code provides not only that parents are liable for damages caused by the acts of their minor children, but also that masters or employers are liable for damages caused by the acts of their servants or employees; that instructors are liable for damages caused by the acts of their pupils; and that artisans or mechanics are liable for damages caused by the acts of their apprentices; and the article concludes with this qualifying paragraph, viz.:

"The...