dissenting. The son of the plaintiff, a boy of fourteen years, was a passenger in the railroad train of the defendants. A switch being left partly open, which under the evidence must be considered matter of negligence on the part of the defendants, the cars were thrown off the track, and the child suffered grievous bodily harm, which has occasioned great expense and mental suffering to his father, and will probably render the child during the rest of their lives a burden to the parent. The action is based solely on allegations of damage suffered by the father, and which are laid at a total sum of $25,000. The only item specifically laid is $1500 for medical and surgical expenses and necessary attendance. The petition contains general averments as to the father’s loss of time, mental suffering, the disappointment of his paternal hopes, with regard to the future of his child and the comfort and aid he expected to derive from his society and the fulfilment of his filial obligations.
We are not aware of any precedent in our reports of such an action by a father. Our first enquiry is how far such an action will lie under our laws and jurisprudence.
The mei\e letter of the 2294th Article of our Code is extremely comprehensive and unqualified with respect to the right of action for damages arising from offences and quasi-offences. “Every act whatever of man that causes damage to another, obliges hjm by whose fault it happened - to repair it.” Yet in general, thip article must be considered as speaking with reference to the person of the immediate sufferer; and we fhink it was properly announced by our predecessors, as the general rule, that actions for injuries to the person are personal. The case, however, of parent and child may within certain limits be justly considered as an exception, and this by reason of the particular nature of the parental relation. Under the Roman law, the right of the father to bring an action for damages for an injury to the person of his child, could have admitted no discussion. For a long time at least, under that system the father was considered as having a right of property in the person of his child, and this lyas illustrated in the law de rei vindicatione which permitted him when his *41child was carried away without his consent, to bring- an action of revindication, an action which could only be brought to recover possession of things of which the demandant was owner. Hence also, under that system originally the parental power of life and death, and the assimilation of children to slaves.
The paternal power had in the Roman law this general effect, that the father of a family and all those under his power as such, were by a legal Action considered, in private matters, as a single person. The consequences of this legal Action were that all that a son acquired belonged to the father, that no contract could be made nor action lie between the father and the son, and that the son could not be a witness of his father’s will. In some respects, however, from public considerations, this unity of person did not hold, as for example in the matter of the peculium castrense.
Our law has greatly softened this rigor of the paternal powers, and placed it in many particulars upon a different footing; but there are principles which can be invoked in support of the present action within certain limits, and which are expressly embodied in that part of our Code which treats of the paternal relation. The law imposes upon the father the duty of supporting the child— Article 243. The immediate and direct consequence of the injury done to the person of the plaintiff’s child has been to make the performance of this legal duty more onerous. It has imposed upon the father the necessity of incurring a large pecuniary liability for medical and surgical aid, and devoting his own time and services to the attention of his child’s sufferings at the sacrifice of his daily business. The damages thus sustained, although not sustained by the immediate sufferer, are recoverable, wo think, by reason of the legal relation and legal duty of the claimant towards the party injured.
I thinka sum of $1,500 may be allowed under the evidence for surgical and medical aid and necessary attendance.
Although clearly of opinion that the father’s loss of time in attending on his child is a legal subject for damages, I regret that I have not been able to concur in the estimate of my brethren, in consequence of the meagroness of the evidence. The point expressly made by the defendant is “ that there is no proof as to the amount of loss, and therefore none can be estimated.”
It seems to me well taken. The sole facts proved in evidence to this item are that plaintiff lost sixty-nine days of time, at a busy season of the year, and was a produce broker. There is no evidence of his daily, monthly, or annual average receipt, or even of the general extent of his business or the average receipt of persons in that calling. The allowance made by my brethren seems to imply a high average annual emolument.
There is evidence of an offer of employment for the lad at $25 per month. But if the son had accepted this employment, the wages would have belonged to him, and the father would not have had even the usufruct. “ This usufruct shall not extend to any estate which the children may acquire by their own labor and industry.” Civil Code, Art. 242.
Under our Code, children are bound to maintain their father and mother when they are in need. The duty in the present case would attach upon the happening of a double contingency which may or may not arrive, to-wit: the father’s being in need after his son’s majority, and the son’s being unable by reason of bodily infirmity resulting from this accident to contribute to the father’s support. Such considerations, perhaps, form a very questionable basis for damages by reason of their uncertainty. If, however, it be admitted that *42under our law, and under the very loose allegations of the petition, damages could he awarded for the prospective loss to the parent, by reason of the child’s being probably incapacitated for aiding the parent hereafter, should he be in need, still I do not think damages could be assessed on that score without the assistance of evidence not offered in this cause. In such a calculation it would be necessary to estimate the probable lives of the parent and son, on such data as would be required in calculating an annuity, and data would also be necessary with reference to the cost of annual support according to the situation in life. To leave questions of this sort to the arbitrary discretion of a court or jury, unaided by evidence tending to something like probable and practical accuracy, would in my opinion be inadmissible.
I do not think the father’s mental suffering- should be an element in the assessment of damages in his favor. This would be extending without a sufficient legal ground the exception of the general rule that actions for injury to the person are personal.
Moreover let us bear in mind the difficulty which would result from recognizing the mental suffering of the third party as an element of damage. Where is any but an arbitrary limit to be found in extending its benefit? Could an action for damages on that ground, if allowed to the father, be refused to the mother, the brother, the sister ?
The subject was recently considered in England, in an action by a widow for damages by reason of the killing of her husband, brought under the statute of 9 and 10 Viet., by which in such actions it was enacted that “ the jury may give such damages as they may think proportioned to the injury resulting from such death, to the parties respectively, for whose use such actions shall be brought.” The rule said to be adopted in Scotland of giving a solatium for the mental suffering, was held to be inapplicable to the English statute, broad and general as its language is; and the impossibility of apportioning the damages among the parties entitled to receive them, if they were based upon the mental sufferings of the parties, was greatly relied upon by the court as indicating the intention of the Legislature to confine the damages to the actual pecuniary loss of the sufferers. See, 10 Law and Equity Rep., 442. Blake v. Midland, Railroad Company.
Let it be recollected that the action of this court to-day in a suit against a wealthy railwajr company may be invoked as a precedent to-morrow against a small tradesman, who sends out a horse and cart in the care of a servant. See the remarks of Coleridge, Justice, in the case just cited. See also, the Reporter’s statement of the evidence in that case, which may be usefully consulted for the purpose of showing what data eminent counsel thought it necessary to put before the jury in such an action. '
With regard to that portion of the unfortunate consequences of this accident which involves damages suffered by the child himself, his bodily pain, the mental suffering and mortification which his crippled and deformed condition will involve, the destruction or mental injury of his prospect of future usefulness to himself, for these I think the father cannot recover in this action, which is based wholly upon allegations of damage sustained by the father. For the damages suffered by the child himself, the father could by virtue of the paternal authority have brought an action for the child’s use under the Article 251 of the Code, which says, “ Fathers and mothers owe protection to their children, and of course they may, as long as their children are under their authority, *43appear for them in court in every kind of civil suit, in which they may be interested.” See also, Article 267. The court therefore erred in refusing to give the charge upon this point requested, as appears by the bill of exceptions,* and this misdirection destroys any value which the verdict might otherwise have as a guide in the estimation of damages.
In the above remarks I have assumed that the person injured could recover for prospective loss by reason of his bodily inefficiency caused by the accident. It is well to observe that the allowance of such prospective damages is expressly recognized in the Roman Law.
Ob hominem vero liberum occisum quinquaginta aureorum poena constitui-tur. Si vero vivat, nocitumque ei esse dicatur, quantum ob earn rem cequum judici videt'ur, actio datur. Judex enim compatare debet mercedes medicis proestitas, coeteraquc impendía, quae in caratione facta sunt; praeterea operas, quibus cancit aut oariturvs est, ob id, quod iuulis estfactus. Institutes of Justinian, lib. xv, Tit. v. De obligationibus, quae quasi ex delicto nascuntur.
Since there has been in our consultations upon this and another case now before us, some diversity of opinion as to the purpose and limit of damages for offences and quasi-offences, I have thought it proper to state the conclusion to which a careful considei’ation of the Code and commentators has brought me.
I understand by the word offence, as used in our Code, every act of a man, done with the intention of injuring another, and violating the laws or offending social order. Offences may give rise both to public and private actions. The public action has for its object to punish the disturbance of social order. It belongs to the public, is exercised in its name, and by its functionaries. The private or civil action has for its object the reparation of the damage which the offence has caused to an individual, and belongs to those who have suffered thedamage. See, Merlin Repertoire, verbo Delit. Duranton, vol. 13, No. 699.
By the word quasi-offence, as used in our Code, I understand an act by which one person without malicious intention, but through imprudence, causes damage to anothór. Le quasi-delit, says Merlin., est un fait pour lequel une *44personne, sans malignité, mais par imprudence cause quelque prejudice á une autre personne. It is, says Duranton, un fait illicite quinuit áautrui, mais qui a lieu sans dessein de nuire.
The civil actions for both causes is given by the same Article of our Code. “ Every act whatever of man, that causes damage to another, obliges him by whoso fault it happened, to repair it.” Art. 2294.
This Article, brief as it is, distinctly designates the purpose and limit of the action. It is simply reparation — a just and adequate compensation to the plaintiff for the injury received by him from the defendant. It suggests no idea of revenge or punishment.
In this light it is viewed by the jurists of Prance, whose Code contains precisely the same provisions — -tout fait quelconque de rhomme, qui cause á au-trui un dommage, oblige celui par la faute duquel il est arrive, á la réparer. The quasi-offence, says Merlin, imposes upon its author the obligation of repairing the damage which results from it. "Wherever the law sees an injury inflicted upon a citizen, it seeks out tho author; it enquires if it was possible for him not to have caused the injury; and when it finds on his part carelessness, or imprudence, it condemns him to the reparation of the injury he has caused. The desire of the law is to render a reparation commensurate with the injury.
Toullier speaks to the same purpose. Elle n’exige d’autro satisfaction que le dédommagement de celui qui souffre. Si la faute qui pauvait causer du dom-mage n’en a point causé, la loi n’inflige aucune peine, á moins qu’une defense de commettre Faction n’efft été portée sous une peine déterminée; car alors a peine dérive d’une desohéissance, d’une contravention á la loi.
The action for the enforcement of penalties, says Duranton, belongs only to functionaries to whom tho law entrusts that duty. But the action for reparation of damage caused by a crime or delil, can ogly be brought by those'who have suffered the damage. Yol. 13, No. 700 et seq.
The same theory of reparation is adopted by Domat. All the losses and all the damages which may happen by the act of any person, whether out of imprudence, rashness, .ignorance of what one ought to know, or other faults of the like nature, however trivial they may be, ought to be repaired by him whose imprudence or other fault, has given occasion to it.
My conclusion is that there is nothing in the provisions of our Code or settled principles of our law which sanctions what are called punitory, vindictive, or exemplary damages, in other words damages which blend together the interests of society and of the aggrieved individual. I think the damages in such actions should bo referred to the extent of the wrong done to the sufferer. Where a person other than the immediate sufferer is plaintiff, there is a further necessary limitation already noticed. Where the immediate sufferer is plaintiff, as he is to he indemnified, every circumstance tending to his injury, whether in mind, body or estate, may be taken into view; hut considerations cannot be entertained which do not relate to the consequences of the injury to the sufferer. The true issue in the action is the guilt of the defendant and the damage" it did to tho plaintiff. Criminal punishment is not to be inflicted in a civil action. .
There may unquestionably be found in our reports dieta which countenance the idea of punitory, vindictive, or exemplary damages; but casual expressions ought not to be relied upon as deliberate expositions of the law. They were *45probably suggested by expressions found not unfrequently in the opinions of English jurists and commentators; and their force even as exponents of the common law, will be greatly impaired in the apprehension of any one who will read the very able and learned review by Mr. Greenleaf of the English and American cases in the recent edition of his treatise on the Law of Evidence. That author, whose opinion is certainly entitled to great deference, lays down the rule in these emphatic words: “ Damages are given as a compensation, recompense, or satisfaction to the plaintiff, for an injury actually received by him from the defendant. They should be precisely commensurate with the injury; neither more nor less, and this whether it be to his person or estate.” In an elaborate note he defends this proposition, and takes occasion to express the opinion that the rule of damages as limited by the extent of the injury to the plaintiff was the same in the Roman Civil Law.
There is nothing in the Article 1928 of our Code which, rightly considered, conflicts with the above conclusion.
That Article treats of the assessment of damages for breach of contract. After announcing with qualifications and limitations the general rule that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, it observes: “yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality, or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are duo for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of the rule.” Then immediately succeds the following clause: “ In the asséssment of damages under this rule, as well as in cases of offences, quasi-offences, and quasi-contracts, much discretion must be left to the Judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud, or bad faith of the debtor.”
Applying the rule noscitur a soeiis, and looking to the context for assistance, the intention of this clause is easily appreciated. The Code in the previous clause had treated of cases of damage where the feelings and taste are concerned ; damages from their nature not susceptible of accurate and arithmetical computations, yet for which pecuniary compensation was admissible. Quasi-offences were very properly ranged in the same category, and their compensation submitted to the sound discretion of the Judge or jury, since damages for mental anguish, or personal indignity or disgrace, &c., are incapable from their nature of any fixed rule. But the enunciation of this discretion by no means involves the idea that in the assessment of damages, the court or jury can travel beyond the enquiry how far the sufferer himself is afflcted, or exaggerate the amount for the purpose of vindicating offended public justice, or punishing the offender as an example to others. See also, McGary v. City of Lafayette, 4 Ann. 440.
Bill of Bface$)Uon$ — kt the request of counsel for defendant, the Judge makes this memorandum of his charge to the Jury:
1st. He read to them the 2294th, 95th, 96th, and 99th Articles of the Civil Code, to show the law relative to the liability of defendant.
2d. He stated to the Jury that it was at all times the duty of the company to have its road in a safe and good condition, so as not in the slightest degree to endanger the lives or limbs of the passengers, and that for this purpose, they were bound to avail themselves of all the discoveries of science or the knowledge derived from experience applicable to the subject, and were under the obligation to employ sober, skillful and competent servants.
3d. That if the Jury believed that the cars run off the track in consequence of the disarrangement of the switches, and that the switches might have been kept in proper order by having a person stationed at them, it was the duty of the company to employ such person for thatpui-posej and that their failure to do so, was one of those cases of negligence and imprudence mentioned in the Article 2295, O. C.
4th. As to the damages, he charged that the Jury were to estimate them according to the principles laid down in the third section of Article 1928 of the Civil Code, which he read to the Jury, and the case of Hermington v. Smithero, 131 Eng. Com. Law Rep., having been referred to by defendant’s counsel; he also read the instruction of Abbott, 0. J., to the Jury in that case, and stated to them that in his opinion, it only went to the extent of denying that vindictive damages should be given, and in that he concurred. That they were bound to estimate the damages according to the principles of equity and common sense, and the probable loss past and prospective to the plaintiff if they found any damages at all.
5th. Having been requested by the counsel for defendants to charge the Jury that if the boy Alexander, contributed to his own injury, they could not find for plaintiff — the Judge so charged them — butremarked that the being in one passenger car instead of another, could not be considered as contributing to his own injury, for he had the right to go in any of them, unless positively prohibited by the rules of the company, known and published, and the company was equally bound for the safety of all its cars, and if the Jury believed that at the moment of the accident he was not sitting in the car but standing on the step, and holding by the window, they were to take all the circumstances into consideration and consider whether such a position was not rather calculated to secure his safety than contribute to his injury under these circumstances.
Cth. Being requested by the defendant’s counsel to charge the Jury that a recovery on the part of the plaintiff would not bar a future action in behalf of the son, the Judge said that whether plaintiff recovered or not, such action was barred by prescription of one year, and that the year had expired.