Toca v. Rojas
| Decision Date | 30 June 1922 |
| Docket Number | 24365 |
| Court | Louisiana Supreme Court |
| Parties | TOCA v. ROJAS |
Original Opinion of January 31, 1921, Reported at 152 La 317.
OPINION On Rehearing.
Plaintiff brings this action in tort on behalf of his 12 year old son, Edwin Toca, who had his right eye injured and his sight seriously and permanently impaired by a fishhook attached to a line and pole, which injury is alleged to have been caused by John Rojas, the 14 year old son of defendant. The petition charges that the plaintiff's son was returning from church, and was walking along the levee on Bayou St. John near the corner of Ball street in this city; that John Rojas and his companion, a boy approximately his age, were also walking at or near the same place; that said John Rojas and his companion had been fishing, and carried their poles with hooks and lines attached to the ends of the poles; that the lines and hooks were negligently allowed to swing and dangle in the air, and were not properly and securely fastened around the poles, and that the said John Rojas, while in the act of whirling his hook and line around in a careless and negligent manner, suddenly and without warning and without giving an opportunity to escape, the hook on the line of the said John Rojas was violently whirled into the face of Edwin Toca, and penetrated the right eye of said Edwin Toca, causing him great pain, etc.
An exception of no cause of action was filed, and, the same having been overruled, defendant answered, admitting that the eye of said Edwin Toca was injured by a fishhook on the day and at the time alleged, but averring that the fishhook attached to the line and pole in the hands of defendant's son was in no way negligently handled by him, and that, if the injury to plaintiff's son was caused by defendant's son, the plaintiff's son was well aware of all facts and circumstances connected therewith.
There was judgment for plaintiff for $ 2,000, and defendant appeals.
On the original hearing in this court the exception of no cause of action was sustained, and plaintiff's action was dismissed.
The exception of no cause of action is directed to the failure of the petition to allege that the defendant's minor son was residing with defendant at the time of the alleged negligent act, and it is contended that this fact is a part of plaintiff's case, is a condition precedent to plaintiff's right of recovery, and must be alleged and proved.
The foundation of paternal responsibility for the acts of minor children, which cause injury to the person or property of others, is to be found in the following articles of our Civil Code:
Article 237: "Fathers and mothers are answerable for the offenses or quasi offenses committed by their children, in the cases prescribed under the title: Of Quasi Contracts and of Offenses and Quasi Offenses."
Article 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 fundamental error upon which the exception of no cause of action is founded, in our opinion, is in assuming that an unemancipated minor, whose father is living, and who has not been apprenticed or placed in the care of others, can have a legal or an actual residence other than that of his father.
Domicile is declared to be that place in which a person makes his habitual residence (C. C. 38), and the domicile of the father, when living, and of the mother when the father is dead, is that of the minor not emancipated (C. C. 39). A child cannot quit the paternal house without the permission of his father and mother, who have a right to correct him, provided it be done in a reasonable manner. C.C. 218.
In the Succession of Robert, 2 Rob. 427, it was held that a minor unemancipated, who had lived abroad for 15 years, but who was born in this state, where his tutrix resided, is domiciled here. It was said:
In reviewing the article of the Code hereinabove quoted, and others in pari materia, this court said, in Prieto v. St. Alphonsus Convent of Mercy, 52 La.Ann. 631, 27 So. 153 (47 L. R. A. 656):
Birth gives rise to paternal control and authority over the child, and, as was tersely stated in Coats v. Roberts, 35 La.Ann. 891:
"Paternal responsibility is the consequence and offspring of the paternal authority."
The father may delegate a part of his authority over his minor children to teachers, schoolmasters and others to whom he may intrust them for their education -- such as the power of restraint and correction -- but he cannot permanently divest himself of any portion of the paternal authority, by contract or otherwise. C. C. 220; Gates v. Renfroe, 7 La.Ann. 569. He cannot send his minor children away from the paternal home unless he places them in the care of others, in which event he remains responsible for their acts. Nor can he refuse to support and maintain them without subjecting himself to a criminal prosecution.
Of course the parental authority may be suspended and interrupted, and even taken away altogether by the force and effect of the law. As, for instance, when the state, in the exercise of its sovereign right and power, takes the child away from the parents for the betterment of its condition; when by judgment of court the child is given over into the custody and care of another; where the minor is called into the service of his state or his country, or is summoned into a posse comitatus. In all such instances, the paternal authority is interrupted or terminated, and likewise the paternal responsibility.
"When the law, ex propria vigore, destroys or suspends the paternal authority over the minor, it, at the same time, destroys or suspends the paternal responsibility." Coats v. Roberts, 35 La.Ann. 891.
Whether or not the paternal responsibility ceases when the minor quits the paternal roof without the consent of his parents, or whether the parents can put an end to parental authority and responsibility by sending the minor away from the parental home, without placing such minor in the care of others, is not necessary here to determine, and we do not decide.
We have not found a single case in the jurisprudence of this state wherein it was directly held, in a suit seeking to hold the parent liable for damage occasioned by the act of his minor child, that it was sacramental for the petition to allege that the minor was in fact residing with the parent at the time of the act which caused the injury. All of the cases which we have been able to find after diligent search were met on the merits, and the question as to whether it was required to be alleged and proved that the minor resided with his parent appears never to have been raised prior to the present suit.
The case cited and relied on by defendant, and the only one cited, is Mullins v. Blaise, 37 La.Ann. 92. In that case we find, from an examination of the original record, that the petition did allege that the defendant's child was residing with its father at the time the injury was inflicted on the plaintiff's young daughter. And the court, in its opinion, did say that all conditions requisite to fasten responsibility on the defendant father were established, viz.: (1) That the damage was occasioned by the act of the minor; (2) that the act was a fault of the most culpable character; and (3) that the minor was residing with the father. But in that case the question of residence of the minor was not an issue. The defendant's child was of tender years, and, the law having fixed its residence with the father and no evidence appearing to the contrary, the court very properly said the fact of the minor residing with the father was established. The opinion can hardly be regarded therefore as holding that it was essential to allege and establish by evidence that the minor was residing with the father.
It therefore, being the law of the case that the minor, John Rojas, could have no other residence than that of his father, that residencecontinued until changed in some manner provided by law. If, as a matter of fact, there had been any change in the legal requirement and in the legal status as...
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