On the Merits.
There is little necessary to be said upon the pivotal issue on which the case must turn. It is unquestionably the law that, in order to hold a defendant liable for damages for personal injuries arising ex delicto, there must appear some actual or legal fault; some act of commission or omission which produced the injury or damage, for which reparation is claimed. The article of the Civil Code (2315;, the source of practically all of such actions,- only obliges him by whose fault damage is occasioned to repair it. And the rule of jurisprudence is that:
“To recover damages for injuries sustained through the alleged fault of another, the fault, and the' connection between the fault and the injuries, must be shown, with reasonable certainty. There can be no recovery where only the possibility, or the probability, of such fault and connection is shown.” Rohr v. New Orleans Gaslight Co., 136 La. 546, 67 South. 361.
The rule applies with equal force when the father is sought to be held liable for the act of his minor child. While the law imputes the fault of the minor to the father, there must of necessity be some fault, actual or legal, in the act of the minor which caused the damage, before the father can be held liable- in damages. Fathers and mothers are only made'answerable for the offenses and quasi offenses committed by their children (C. C. 237), from which it follows that, if the act of the minor which caused the damage did not in law constitute an offense or quasi offense, there can be no paternal responsibility.
The evidence in the case fails to meet the legal requirements. The record is silent as to how or in what manner the unfortunate accident happened, and it fails altogether to show any fault on the part of John Rojas. It is alleged in the petition that John Rojas and his companion negligently allowed their hooks and lines to swing and dangle in the air, and that while whirling their hooks and linos around in a careless and negligent manner the hook of John Rojas was caught in the eye of plaintiff’s son. There is no proof to sustain the allegation of negligence in so far as John Rojas is concerned.
The accident occurred on Good Friday; plaintiff’s son went to church; defendant’s son and a companion, Lester Mailleur, went fishing in Bayou St. John. On his way to church plaintiff’s son walked on the sidewalk of Moss street, and on his return he *329traveled in a path on the levee which parallels the bayou and Moss street. The path on the levee is frequently used by pedestrians. When the plaintiff’s son reached the point where the two boys had been fishing, he met Lester Mailleur and a young lady. Mailleur was whirling his line around his pole, and the hook came near catching in the hat or veil of the young lady. Toca remarked to Mailleur that he came near hitting the lady’s hat with his hook, and about the same time, or a few moments after, a hook was caught in Toca’s eye. Young Rojas was not on the levee, but was down between the levee and the bayou, and as soon as the hook was caught in Toca’s eye he went to him and removed it. There is grave doubt that it was the hook of Rojas. No one testified that he saw Rojas at the time or just before the hook caught the eye of young Toca. Edwin Toca, who was 13 years old at the time, was the only witness who was present at the time of the accident to testify in the ease. He did not see John Rojas before the accident, and did not know that John Rojas was about until he saw him removing the hook from his eye. The only reason he knew that it was the hook of John Rojas was because he took the hook from his eye, and had the line and pole in his hands afterwards. His evidence on this point is as follows:
“Q. Now, you say you did not see his hook and lino; can you say it was his hook and line?
“A. After it struck me in the eye, he was holding the line and hook in his hand.
“Q. How do you know that was his book and line unless you saw him before?
“A. After he struck me in the eye with the hook, he was the only one that was holding it.
“Q. You didn’t see him with the hook and line before you were struck?
“A. No, sir.
“Q. Did you know that John Rajos took the hook out of your eye?
“A. Yes, sir.
“Q. You don’t know anything else?
“A. No, sir.
“Q. All you know is that Lester Mailleur was swinging a hook and line over his head and nearly touched the hat of a lady?
“A. Yes, sir.”
This is substantially all of the testimony of the young man touching the manner of the accident and the connection of young Rojas therewith. It certainly fails to show that Rojas' was handling his pole and line in a careless or negligent manner. That fact cannot be presumed because his companion, Mailleur, was careless or negligent in the handling of his pole and line. It was incumbent on the plaintiff to show, not only that it was the act of defendant’s son which caused the injury, but that the act was the result of negligence or the want of due care and caution. It is not disputed that Rojas was dowfi near the water’s edge, and, even if it had been shown that he was winding his line around the end of the pole by whirling it in the air, it is doubtful if such an act would have constituted actionable negligence on his part. While it is true there was a pathway on the levee which was frequently used by pedestrians, the levee was not designed for, nor was it regarded as, a public thoroughfare. As already stated, there was a street' and sidewalk which parallel the levee and bayou, and which was specially dedicated to the use of the public. Rojas was therefore not on any public street or public highway. Toca did not see him, nor did he see Toca. There is no explanation as to why other witnesses were not produced by plaintiff. The young lady spoken of was there when the accident occurred, and there were quite a number of girls and boys on the banquette near by. The young boy, Mailleur, was summoned by the plaintiff; at least counsel for defendant was notified by plaintiff that he expected to take his testimony, but for some reason, not explained, the testimony of this witness was not taken. Having the opportunity of producing these wit*331nesses and failing to do so, the presumption is that ' their evidence would have been against the plaintiff.
We have not considered the testimony of plaintiff’s counsel as to - the admission claimed to have been made to him by young Rojas. The testimony was hearsay and clearly inadmissible. But even if the testimony was considered it would not establish actionable negligence or show legal fault in Rojas. The counsel’s statement is:
“He simply said that ho was coming up the bank whirling his lin.e, and that he did not see the boy until it was all over.”
The accident to the young man is regrettable, the sight of the eye has been limited permanently to two-sevenths of normal, but it is one of those unforeseen, unintentional, and, so far as the evidence discloses, nonnegligent accidents which are liable to happen, and which do happen, in the course of human events.
For the reasons assigned, it is ordered and decreed that the judgment appealed from be set aside, and the plaintiff’s demand rejected at his costs.
PROVOSTY, O. J., and OVERTON and LECHE, JJ:, dissent from that part of the opinion overruling the exception of no cause of action, but concur in the result. DAWKINS and ST. PAUL, JJ., concur in the ruling on the exception, but dissent to the ruling on the merits.