
    (35 South. 491.)
    No. 14,850.
    MILLER v. MECHE.
    (Dec. 14, 1903.)
    PARENT AND CHILD—TORTS OF CHILD—LIABILITY OF FATHER.
    1. The father of a minor convicted of shooting with “intent to kill” may not be liable (despite the conviction), for the injurious act thereby committed by his minor son, in a civil suit, brought after conviction, to recover damages from him.
    2. While the father may be liable for the wrongful act of his minor son under article 2318 of the Civil Code, it must be shown, in order to render him liable, that the one who had a difficulty with the son was not himself at fault in the trouble wMch resulted injuriously to the claimant for damages.
    3. One who avoids the law, makes no complaint to the authorities, who is quick to meet a minor, and the first to resort to insulting words and then to blows, is not in a position to recover damages for injuries which were received in the struggle which ensued.
    (Syllabus by the Court.)
    Appeal from Eighteenth Judicial District Court, Parish of Acadia; Conrad De Baillon, Judge.
    Action by Moise Miller against Edgar Meche. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Veazie & Pavy, for appellant. Story & Pugh and R. Lee Garland, for appellee.
   BREAUX, J.

Plaintiff, Moise Miller, asks to recover of the defendant the sum of $6,201.50; $5,701.50 of which are asserted actual damages suffered by him, and $500 of which are claimed as exemplary damages.

Plaintiff alleges, in substance, that he has suffered damages to this amount at the hand of Homer Meche, the minor son of defendant, Edgar Meche, by whom he was shot and severely wounded.

The defendant, in substance, sets forth, in his answer to plaintiff’s demand, that plaintiff was the aggressor in the difficulty with his son in which he was shot, and that his son only sought to defend himself.

The case was tried before the judge.

His decision was adverse to plaintiff, and he dismissed his suit. Plaintiff has appealed.

The action to recover damages from the father for the wrongful act of the son was brought under article 2318 of the Revised Civil Code.

It is met by defendant on the merits.

There is no question of the want of right of action against the father for the injurious act of his minor son.

The questions presented are mainly of fact.

Many witnesses were examined, and different accounts given of the difficulty between plaintiff and defendant’s son.

We will state, before proceeding further with our decision, that Homer Meche, the son of defendant, was indicted by the grand jury for shooting with intent to commit murder, and. was brought before court in a criminal case against him, was tried and found guilty, by a petit jury, of shooting with intent to kill the plaintiff, and was sentenced by the court to two years in the penitentiary, in which he is serving the sentence pronounced.

The trouble between the two arose at a ball in the parish of Acadia, and it resulted in a wound inflicted on plaintiff which is referred to by one of the attendant physicians as a dangerous wound from which a victim seldom recovers.

There is a motion left in the upper portion of the arm, and none in the forearm.

There had been bad blood between plaintiff and defendant’s son for some time.

The father of the plaintiff, and the plaintiff himself, reminded of the minority of defendant’s son, sought to restrain the latter’s animosity (which had manifested itself in the use of intemperate language) by afterward sending messages to defendant to see to it that his son ceased to be disagreeable to plaintiff, and stop his unbecoming rudeness in this regard. This did not have the desired effect.

The testimony shows that peaceful messages afterward were changed to utterances on both sides that were of a very unfriendly nature. One looked upon and spoke of the other as his enemy. There was decided bad blood on the part of each.

On the night of the difficulty, at a dance given to a young couple just married, plaintiff had a loaded “quirt,” while defendant, who was in liquor, was armed with a pistol. We refer to the “quirt” to say that its possession at the time by plaintiff is scarcely consistent with the position which he sought to maintain in the suit—that he left his home expecting no trouble or difficulty, unarmed, and with no means of defending himself.

At the dancing place, intended, doubtless, to be agreeable, hut marred by the difficulty in question, the son of the defendant came out of the body of the house to the gallery. On seeing plaintiff he said that he was master of his enemies, and made the equally foolish remark that, though a minor, his pistol was of age.

Plaintiff, as we read the testimony, gave him the lie direct, and immediately, we take it, each prepared for the fray. We do not for an instant think, after having carefully read the testimony, that it was the intention of plaintiff at the time to create a difficulty.

In the disturbed condition in which each was as soon as they commenced to talk to or at each other, it took but a moment to resort to blows.

By the exercise of some coolness and a little self-possession, and by not rushing into a fight upon slight provocation, it is probable that plaintiff would not have lost his right arm, so much needed for his support and that of his wife and two children, and his antagonist would not have been condemned to' punishment as before stated.

There is no question here of negligence and contributory negligence. The act was willful on both sides, and for that reason it was not one of negligence or contributory negligence. Amer. & Eng. Ency. of Law (2d Ed.) verbo “Contributory 'Negligence.”

The acts of plaintiff contributed to provoke his antagonist.

His conduct, in denouncing him as he did, and in striking him (to put the most favorable phrase upon it), was erroneous and illegal. It was mistaken conduct. In their own way plaintiff and those with whom he advised prior' to and on the night of the difficulty had rude, but correct, notions of the law. They sought the father’s influence to restrain his son, for whose conduct he, the father, was unquestionably responsible. Plaintiff very properly, on the night in question, said to the minor: “Go away from me; you are a minor.” But a moment after he changed his conduct toward this minor, and contributed in bringing on the trouble.

There are five years’ difference between the two. The minor was about 20 years of age.

Plaintiff was the larger and stronger man.

If he had gone into the fight with his naked fist, defendant would be liable.

But the instrument with which plaintiff attacked is suggestive of humiliation and degradation. Nearly all men would prefer to suffer the most adverse and cruel fate than to he chastised with a whip.

A quirt is a rawhide whip plated with two thongs of buffalo hide. Webster’s Dictionary. Plaintiff testified that in striking Homer Meche it was to disarm him and prevent him from shooting. This is not sustained by the testimony. There was an element of wrong on the part of plaintiff in using the quirt.

It is sought to hold the father liable in damages in a civil action.

Issues, in the nature of things, are different from what they would be between plaintiff and son.

Plaintiff chose to disregard the law. As his trouble was with a minor, the courts were open to hear his trouble, and before the courts he might have shown, if such was the fact, that the father was unmindful of the duty he owed to his children and to society, and then the strong arm of the courts would have protected him in all of his rights. This the plaintiff did not do.

There was no wrong in the mere presence of the minor at the ball. The testimony does not show that the father knew that he was armed, or that he knew of his drunken condition, nor is there any testimony before us going to prove that on the night in question it was possible for the father to prevent the shooting.

These are elements which enter into the case to an extent, at least, when it is sought to hold the father liable for the damage caused by his son.

The disposition of the law in this respect is exceptional and rigorous. It should not be extended.

Those who claim from the father or tutor for offenses committed by the son or ward must bring themselves strictly within the law.

It must be shown, when the father or tutor was absent and when he had naught to do with the trouble, either directly or indirectly, that owing to a want of discipline in the family, or to the negligence in not exercising needful paternal influence and authority, he is liable.

The following, in substance, is the text of Fuzier-Hermann, vol. 3, p. 88, No. 77, in reference to the article of the Civil Code, No. 2,-318: Held, that the father is not liable if he proves that owing to his absence he could not prevent the deed.

Again, it is not negligence per se for a father to place a pistol at the disposition of his grown minor son. Id.

But here, different from the case referred to by Fuzier-Hermann, it does not appear that the father knew that his son left his home with a weapon.

Some time prior to the difficulty the father was informed by friends of plaintiff that his son carried a pistol. He attempted to take it away from him.

But the incident, as related by witness, does not impress us with the necessity of holding the father liable because his son had a weapon on the night of the difficulty.

Originally there were three'parties—plaintiff, the son of the defendant, and the state.

The state punished the wrong through the same court before which the civil suit was brought.

The trial judge, by whom the son was sentenced, decided that here the plaintiff is not entirely blameless. After a careful review of the testimony we have arrived at the same conclusion.

The question is very similar to that which was decided in Bankston v. Folks, 38 La. Ann. 267.

Our learned Brother of the district court, in his reasons for judgment, stated that the whole affair is a disgrace. “Miller should not have armed himself with a loaded quirt, nor returned to the ballroom door where Meche was, and it is equally true that Meche should not have gone to the ballroom armed with a pistol. If Miller had apprehended violence from Meche, his plain duty was to make oath of it before an officer of the law, and have him bound over to keep the peace.”

To which we add, the place of innocent, festive amusement should not be invaded, and the lives of innocent persons exposed, by men bent upon satisfaction for' wrongs, imaginary or real.

For these reasons the judgment is affirmed.

MONROE, J. I concur in the decree.  