Cour de cassation

The Court:

Given that the Fonds de Garantie automobile, created by the Law of 31 December 1951, article 15, appeals from a judgment handed down on 23 June 1970 by the Tribunal de grande instance of Vannes in a suit brought by Hazevis against Servoin and Allain for damages in respect of the personal injuries he suffered as a result of a hunting accident on 22 December 1968, the tribunal having decided that, since it was impossible to say who fired the shot which did the damage, the damages must, under article 366 Code rural, be paid by the Fonds de Garantie; given that the Fonds de Garantie seeks a judgment holding Allain and Servoin jointly and severally liable, and that they in their turn seek to have the judgment below upheld;

Given that it emerges from information before the Court that on 22 December 1968 a party of six (Hazevis, Fablet, Servoin, Allain, Bertho and Maurice) were hunting together in Saint-Dugast en Plumelec, that the party split into two, with Allain, Servoin, Bertho and Maurice walking through a cabbage-field bordered by a hedge, while Fablet and Hazevis kept close to the hedge, the latter on the far side about three metres from Fablet and in line with Fablet and the other hunters in the field; Servoin was about 40 metres away from Hazevis and Allain was about 9 metres in front of Servoin nearer to Fablet who could be clearly seen, unlike Hazevis who was partially invisible because of the intervening hedge; given that a woodcock started up between Allain and Servoin and flew in the direction of Fablet and Hazevis; Servoin fired first, perhaps two seconds before Allain; Fablet also fired at the bird as it flew past him, and that it was between the second and third shots that Hazevis was struck in the face by several lead pellets.

Given that in view of the relative positions of Allain and Servoin, the quick succession of their shots prior to the injury, and the relatively dense vegetation alongside the field which made it hard to say whether the pellets hit Hazevis directly or by ricochet; the Tribunal found it impossible to say which gun fired these pellets, and that it declined to impose joint liability on both for the full amount; given that all parties agreed that it was impossible to tell which gun caused the harm;

Given that the Fonds de Garantie, alluding to the theory put out by the Court of Cassation in its decision of 11 February 1966, contended that joint liability was justified because these two huntsmen, standing close to each other and firing simultaneously, produced a single cone of pellets; But given that such contention is in conflict with some of the facts before the Court, that one cannot speak of a single cone of pellets when Servoin and Allain were nine metres apart and firing at a bird zigzagging at speed, the cones of pellets from the two guns being clearly quite separate; given that the pellets could have ricocheted from the branches of the apple trees which were close to the hedge, it is impossible to say which gun fired the pellets which injured Hazevis; the Court must therefore apply the line of decisions which lay down that before any particular huntsman can be held liable it is essential to prove that it was his shot which caused the harm for which damages are sought and whose gun the pellets came from; since the judgment below applied this principle quite correctly, the Court must affirm it;

Given that it is unknown who caused the injury, article 366(3) of the Code rural falls to be applied, with the result, as held by the Tribunal, that the Fonds de Garantie must pay the damages; given that it is not shown that Hazevis was at fault in quitting the other huntsmen and walking behind the hedge close to Fablet who was clearly visible, the Court upholds the interim award of 2,000 francs, which Hazevis seeks to have increased, for it seems to be enough to cover his expenses, and he has not shown that he was, as claimed, incapacitated from work for three months.

Doctrine not upheld (sole case). See Jurisclasseur “Responsabilité Civile..”, Fasc. 160, op.cit.: “Where no fault can be shown as against members of a group, the cases then try to base findings of liability upon Article 1384, para. 1, of the civil Code; they justify their decisions by applying the theory of the “single volley of shot” (for hunting accidents) or the notion of “common full possession” (“garde commune”) or “collective full possession” (“garde collective”). Here again it is above all in the area of hunting accidents that this doctrine has been able to develop. Thus, it has been held that the pellets fired by the huntsmen formed a “single volley of shot”, which made it possible to hold liable the persons in full possession (“gardiens”) of the guns, whose projectiles hit the victim. (Civ.2, 5 February 196X, 13 march 1975, Bull. II, No. 88 – See in addition, for a collective salute fired on the occasion of a wedding, Civ. 2, 15 December 1980. Against this, but alone, CA Rennes, 14 January 1971). The Court of Cassation has even applied the theory of the “single volley” when only one of the projectiles hit the victim (Civ.2, 11 February 1966), which is surprising, since there is no longer really a “volley” of shot. In this case, it is the full possession (“garde”) of the guns and their common and simultaneous action which is the basis of the joint liability of the hunters, independently of the volley of shot coming from their arms (CA AEF, 5 April 1957 – see also Civ.2, 15 December, already cited, which lays emphasis upon the common action of the group carrying out connected and inseparable actions). This analysis is to be found, in strictly identical terms, including the “isolated” nature of the decision of the Court of Appeal of Rennes, in the Traité de Droit Civil (LGDJ, 1998) of Geneviève Viney and Patrice Jourdain (in fact the author of the fascicule cited above). On the other hand, concerning this decision, Messrs. Roland, Stack and Boyer (“Responsabilité Délictuelle”, Litec, 1996) seem however to point out (No. 254) that this case rather illustrates the idea that the theory of the “single volley” was inapplicable in that case: pursuant to that theory, “the huntsmen are held liable fro damage caused by all the guns of which they had common full possession (“garde commune”) because the pellets fired simultaneously from these guns formed a single volley. If the shots were not simultaneous, it would not have been possible to find the existence of a collective full possession (“garde collective”) of the guns.

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