Sutton v. Champagne

• Decision Date: 12 February 1917
• Docket Number: 22233
• Citation: 141 La. 469,75 So. 209
• Court: Louisiana Supreme Court
• Parties: SUTTON et al. v. CHAMPAGNE et al

75 So. 209

141 La. 469

SUTTON et al. v. CHAMPAGNE et al

No. 22233

Supreme Court of Louisiana

February 12, 1917

On Rehearing, May 14, 1917

A. D Danziger, of New Orleans, for appellants.

St Clair Adams and Arthur J. Peters, both of New Orleans, for appellee Champagne.

Henri Wolbrette and Edward P. Quinius, both of New Orleans, for appellee Sill.

OPINION

PROVOSTY, J.

This suit is against the parents of the two 14 year old boys Charles Champagne and Leo Sill, in damages for the death of a colored boy, the little 9 year old son of the plaintiffs, who was killed in one of the streets of the city of New Orleans, in the built-up part of the city, by a bullet out of a 22-caliber Remington rifle, capable of killing a man at 300 yards, with which the two boys and four other boys of about the same age had just been shooting birds in the street. This discharging of a firearm in the street was a violation of a city ordinance. The responsibility of the parents is deduced from article 2315 of the Civil Code, to the effect that 'whatever act of man causes injury to another obliges him by whose fault it happens to repair it' and from articles 2316, 2317, and 2318, which read:

'Art. 2316. Every person is responsible for the damage he occasions, not merely by his act, but by his negligence, his imprudence, or his want of skill.

'Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modification:

'Art. 2318. The father, or after his decease, the mother, are responsible for the damage occasioned 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.'

If the gun was intentionally fired at the boy, and was in the hands of young Champagne, as plaintiffs contend, the liability of defendant Champagne would have to be admitted, and the liability of the other defendant Mrs. Sill, might also be possible, on the theory on which plaintiffs seek to hold her, that young Sill was aiding and abetting the said intentional act; but, even if the gun was in the hands of young Sill and the firing was accidental, as defendants contend, one or both of the defendants would still be liable for the unskillful or careless handling of so dangerous an instrument as a firearm in the street of a crowded city, as the result of which some one is killed, amounts in law to fault which entails liability. Marionneaux v. Brugier, 35 La.Ann. 13; Mullins v. Blaise, 37 La.Ann. 92; Lagrappe v. Tisseau, 14 February, 1831, Supreme Court of Bordeaux, France Journal du Palais 1831-32, p. 1211.

The rifle and the cartridges had been given to young Champagne by his father, and on the occasion in question young Champagne was shooting birds with it in a large tree in the street; the other boys being with him. Leo Sill begged to have the gun to shoot, and Champagne let him have it; and just then the gun went off, as Leo Sill was trying to ascertain whether it was cocked.

Plaintiff has not made it legally certain that the firing was intentional; hence the case has to be disposed of on the theory that it was accidental.

We have no difficulty in deducing the liability of the defendant Champagne. He, under the above-quoted codal provision, is answerable for the acts of his boy; hence the legal situation as to him is precisely as if he, and not his boy, had handed this rifle to inexperienced young Sill, to be discharged in the street in violation of the city ordinance. Thereby he assumed the risks incidental to the inexperience and unskillfulness of the boy in handling this dangerous instrument.

We meet with more difficulty in solving the legal problem as to the liability vel non of the mother of young Sill. It seems illogical and hard that a mother should be liable in damages for the consequences of the act of somebody else in intrusting a dangerous instrument to her inexperienced child out of her presence and without her knowledge. At the same time the plaintiffs make out a case against her, under the hereinabove quoted codal provisions, when they show that, owing to the unskillful and careless handling of a rifle in the street by her boy, their child was killed. The solution of the problem must be that, while she is liable to the plaintiff, she has her recourse over against the person who by his act brought the responsibility upon her; and we shall so decide.

In view of all of the circumstances of the case, we fix the amount of the damages at $ 5,000.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that the plaintiffs David Sutton and Maria Sutton, have judgment against the defendants, Louis J. Champagne and Mrs. Maggie Sill, in solido, for the sum of $ 5,000 with legal interest thereon from the date of this judgment, and for the costs of this suit, and that, upon payment of this judgment, or of any part thereof, the said Mrs. Maggie Sill have judgment over against the said Louis J. Champagne for whatever amount is thus paid by her.

On Rehearing.

The rehearing was granted only as to the amount of damages to be allowed. It was refused as to other matters.

The plaintiffs are husband and wife, who are suing defendants for damages for the death of their son, aged 9 years.

L. J. Champagne, one of the defendants, complains of the amount of the judgment against him.

A re-examination of cases wherein damages have heretofore been awarded for the death of...