Vincent v. Morgan's Louisiana & T. R. & S. S. Co

• Decision Date: 12 February 1917
• Docket Number: 22182
• Citation: 74 So. 541,140 La. 1027
• Parties: VINCENT et ux. v. MORGAN'S LOUISIANA & T. R. & S. S. CO
• Court: Louisiana Supreme Court

74 So. 541

140 La. 1027

VINCENT et ux. v. MORGAN'S LOUISIANA & T. R. & S. S. CO

No. 22182

Supreme Court of Louisiana

February 12, 1917

Rehearing Denied March 12, 1917

SYLLABUS

(Syllabus by the Court.)

The master is liable in damages for any negligent or wanton act of his servant whereby another sustains injury in his mind body, or estate, and which is committed in connection with or furtherance of the purposes of the servant's employment.

Under our law as it now stands, the right of action for the recovery of damages for personal injury sustained through the fault of another is personal to the injured party so long as he survives, and, unless previously exercised by him, devolves at his death upon the persons specified in article 2315 of the Civil Code (as amended and re-enacted by Act No. 120 of 1908); and, should he die in consequence of his injury without having exercised his right, they acquire also a right of action in damages for injury they may sustain by reason of his death, and are entitled to full indemnity with respect thereto; but neither the person originally injured nor those who succeed to his rights with respect to the injury, and who acquire rights of their own with respect to the injury inflicted upon them by his death, are entitled to recover anything more in the way of damages than adequate indemnity for the injury and loss inflicted upon him and them in mind, body, or estate, there being no provision in our system of laws which authorizes the cumulation in such cases of a civil action for the redress of a private wrong with a quasi criminal prosecution for the assumed benefit of the public, but the sole purpose and principal effect of which is to increase the adequate indemnity recovered by the plaintiff as actual and compensatory damages by the addition of a pecuniary penalty in the form of exemplary, punitive, or vindictive damages.

An action in damages by both parents for the death of their son, aged 16 years, under circumstances which render a railroad company liable therefor, where the ground of action is the injury to their feelings and loss of their son's society and affection, belongs to a class with reference to which our law (Civ. Code, art. 1934) specifically declares that in the assessment of damages much discretion must be left to the judge or jury. Unless, therefore, this court is satisfied that the discretion so vested has been abused, the assessment of damages, as made by the judge or jury in such case, will be left undisturbed.

This court having established precedents for allowing $ 5,000 to one parent for the loss of the society and affection of a child, the allowance in such case of $ 10,000 to both parents is not an abuse of the discretion vested in the trial judge.

Robert H. Marr, Alfred E. Billings, and Denegre, Leovy & Chaffe, all of New Orleans, for appellant.

William H. Byrnes, Jr., and Prentice E. Edrington, Jr., both of New Orleans, for appellees.

Statement of the Case.

OPINION

MONROE, C. J.

This is an action by the parents of a boy for the recovery of damages for his alleged wanton killing by one of defendant's employes, while acting in the discharge of the functions for which he was employed. The case was tried without a jury, and resulted in a judgment for plaintiffs in the sum or $ 10,000. Defendant has appealed, and plaintiff has answered praying that the amount of the award be increased to $ 20,000. The facts, as we find them, disclosed by the evidence, are as follows:

On the evening of February 12, 1915, at about 8 o'clock, Edward Friloux, employed by defendant to watch its property and protect it from trespassers and thieves, was traveling on one of defendant's freight trains, and had in his custody three hoboes, who had been arrested and turned over to him and whom it was his purpose to lodge in the parish jail at Avondale. The train was a long one, and he and his prisoners were seated on cross-ties constituting the load of a gondola which was about the seventeenth car from the locomotive, the prisoners with their faces towards the locomotive, and he, facing them, with his back to the locomotive, their elevation above the ground being eight or nine feet. At a certain point in Gretna where the railway crosses a public road there were gathered at that time some 15 or 18 boys, aged from 11 to 18 years, including plaintiff's son, aged 16 years, and as the gondola in question reached there and was passing there was some 'hollering' and some missiles thrown by the boys, or some of them, at those who were on the gondola, and thereupon Friloux fired a shot from a pistol, which took effect upon plaintiffs' son, and resulted in his death within a few minutes. There is some little conflict in the testimony, but the facts, nevertheless, stand out clearly enough. Ten of the boys were called as witnesses for plaintiffs, and eight of them testify that there was no 'hollering,' and all of them that they threw no missiles and saw none thrown. Two of them testify affirmatively to the 'hollering' as follows:

Joe Russo:

'Well, I heard some boys 'holler,' there was four hoboes, and when the train was going a shot was fired into the boys, and I turned and run behind a tree. * * * Q. Where did the shot come from? A. Come from that flat car (meaning the gondola), and he was on the flat car. Q. Had that flat car passed at the time that shot was fired? A. Yes, sir; passed about 70 feet, or something like that, when he fired.'

Frank Allo:

'About 10 or 12 cars from the engine there were three or four fellows on a car, and we all hollered, 'Look at the hoboes on there,' and so soon as we hollered that a fellow fired; I couldn't tell who shot it, or what; I know it was a railroad detective, though. Q. Fired, and then what happened, Frank? A. Well then the boy fell, after he fired.'

Friloux, after stating that he was on the car, with the three hoboes, and had reached the point to which we have referred, testifies further (quoting in part):

'Q. What happened there? A. I got hit on the head with a piece of cypress knot. * * * A. What effect did it have when it hit you? A. It knocked me out a little bit, knocking me on my face, and, when I went to raise up, a brick caught me on the arm and another brick caught me in the back. Q. You know who threw those missiles at you? A. No, sir; I don't know; I know there was a gang down there. * * * Q. Did any of them say anything? A. Yes, sir; just as the knot hit me in the head and I fell down, one of them said, 'We've got the son of a b___; let's kill him.' I raised up, and one caught me on the arm and one in the back. I had my gun in my hand, watching those three hoboes I had arrested, and then I raised up and made a shot in the air to scare them. Q. Did you intend to hit anybody? A. No, sir; shot up in the air. * * * Q. How fast was that train going, about? A. Well, I guess about eight or nine miles an hour. I know I could catch it the way it was running. * * * Q. Was it pretty dark? A. Very dark. * * * Q. Was there any chance for you to get away from those missiles that were being thrown? A. No, sir; the brick was coming too fast, and at the same time the three prisoners were struck, too. One of them was hit in the right side of the head and fell. * * * He was hit with half a brick. * * * Q. What did you say you did with that block that hit you on the head? A. Brought it here and turned it over to the sheriff. * * * Mr. Friloux, how old are you? A. I am 42 years old. * * * Q. How much do you weigh, Mr. Friloux? A. Two hundred and seventeen pounds. * * * Q. You are pretty strong? A. Pretty strong. * * * Q. Now, Mr. Friloux, how far had you passed the bridge, or the public road, where these boys were standing, when you shot? A. Of course, I couldn't tell while the train was going, but just about 25 or 50 feet, at most, just got past there. * * * Q. When you say you shot up in the air, you mean you intended to shoot up in the air, but, as a matter of fact, you did not shoot up in the air? A. I couldn't shoot down. I had to shoot this way because I was about the middle of the car, and by sitting down I just shot over the heads. Q. As a matter of fact, it didn't go the way you intended it to go did it? A. That I don't know. Q. You do know that a boy was shot and that he was shot with your bullet? A. No, sir; I don't know that he was shot with my bullet. * * * I don't think he was killed with my bullet. * * * Q. What kind of a pistol did you have? A. Forty-one. Q. Would you know your bullet if you saw it? A. I know a 41 when I see it; yes, sir. (The witness is shown a bullet, marked 'XX,' being the bullet that was taken from the body of the boy.) The Witness: It is a 41. * * * Q. How many shots were fired? A. I don't know; I fired one. Q. You fired one? A. Yes; and there were other people heard more. Q. How many did you hear? A. I heard one. * * * Q. Those boys weren't right up against the crossing? A. They were right near. Q. Out near the crossing in the public road? A. About 10 or 15 feet from the train. * * * Q. Now, if you had passed the crossing more than 25 or 50 feet, why did you fire at them? A. Because they said, 'Let's get the son of a b___ and kill him.' Q. With the rumbling of a train of 55 or 60 cars, and after you had passed the crossing, you say you heard somebody in the crowd holler, and that is why you shot? A. Yes, sir. * * * I didn't know if they were going to get on the train and pull me off the train. * * * Q. And, according to your testimony, you shot up in the air, and you don't believe you hit the boy? A. I don't believe I did. * * * I will swear I didn't kill the boy. * * * Q. Now, did you think your life was in danger at the time you fired that shot? * * * A. Yes; I thought my life was in danger; sure;...