Case:
JCP 1957. 2. 10308
Case Drouin and Gillet v. Mangala
Date:
05 April 1957
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Cour d’Appel de l’Afrique Equatoriale française

The Court:

The Facts:

In July 1954 Dutey, Gillet and Drouin agreed to go hunting for elephants in the region of Loudima Sibiti. Accompanied by several trackers, including Mangala, they started out on 10 July, but for two days failed to find any game. On 12 July, however, at 7.30 a.m. when they were on the Loudima Sibiti road, they saw a solitary male elephant grazing on a hillock about 250 metres to their left. They entered the bush along with their trackers so as to approach it downwind, Dutey and Gillet going first followed by their people, while Drouin remained in the rear armed with his camera. It was understood that Gillet was to have the privilege of firing the first shot. After about 20 minutes advance through tall grass they saw the elephant about twenty metres ahead. Gillet and Dutey went to his right while Drouin behind them tried to take a photo. The elephant was in a patch of bush which, unlike the bush through which the huntsmen had been advancing, had not been burnt. While Drouin was taking his photo, having handed his gun to Mangala, Dutey and Gillet fired almost simultaneously, Gillet doubtless firing first. The beast was struck in the head and fell trumpeting to the ground, but rose shortly thereafter and hurtled down a slope towards a creek about 40 metres away. At this juncture Drouin took up his gun and after firing several shots in the direction of the beast as it climbed the neighbouring hill, each of which struck home, waited about half an hour, as advised by Dutey, while the huntsmen were about 50 metres away in the tall grass. Half an hour later they all followed the fresh trail and in fifteen minutes saw the elephant on the hillside about 40 metres distant. Drouin and Dutey both fired and hit the animal on the flank behind the head, whereupon the beast, severely wounded, twisted round and Dutey said “Let’s go for him”. Although Mangala told the huntsmen it was dangerous to pursue a wounded elephant, they followed the trackers towards it. After they had crossed the two small creeks separating them from the animal the two trackers in front threw themselves aside and cried “There’s the elephant!”. The beast made for Dutey who tried to escape while Mangala rushed back to the other two and shouted to them that the enraged animal was charging towards them. Drouin fired, but was unable to stop the beast. He threw himself aside. At this Dutey, five metres behind Drouin, cried out in fear. Gillet and Drouin fired several shots, perhaps Dutey also. The elephant was killed, but one of the shots hit Mangala. Drouin called to his friends that Mangala had been injured, but only Gillet replied. One of them carried the injured tracker into the bush and returned to Dutey who had been trampled by the elephant and was complaining of the pain from his injuries, which caused his death a few days later. According to Mangala, it was Dutey who employed him, the other whites being Dutey’s guests. As Drouin and Gillet both had 10.75 carbines with armoured shot, it is impossible to say which was the gun which injured Mangala.

Procedure:

Drouin and Gillet were prosecuted for involuntary assault but the case was dismissed on 25 October. Then they were sued by Mangala for damages before the tribunal at Brazzaville, which on 13 October 1956 held them both guilty of causative negligence and liable for the accident. It appointed an expert to examine Mangala, who was to put in a liquidated claim on the basis of his report, and ordered Gillet and Drouin to make an interim payment of 30,000 francs. Drouin and Gillet now ask this Court to modify that judgment on the ground that the trial judge was wrong to hold them liable since they were not in any way responsible for the accident to Mangala, whose claim should therefore be wholly dismissed; Mangala simply seeks affirmation of the judgment below.

The Law:

The trial judge was wrong to hold that the appellants were at fault, since in defending themselves against the infuriated beast which was charging at them they behaved quite normally and appropriately, and they cannot be said to have been negligent in the use of their firearms; But given that the facts show first that Gillet and Drouin had agreed to join Dutet in a hunt of a particularly dangerous kind, secondly that they had tacitly agreed to accept jointly the risks inherent in such a hunt and the use of their intrinsically dangerous firearms, and thirdly that the guns which they had under their joint control were designed to kill any wild beast they encountered and, if necessary, to protect themselves and the other hunters; given that the accident to the tracker Mangala on 12 July 1954 resulted from the realisation of those very risks, and that while it is impossible to say which firearm caused the damage to Mangala, it is enough to justify the application of article 1384(1) Code civil to state that the injuries he suffered were the unavoidable consequence of the defendants’ joint control of the firearms, involving risks accepted as common and which unfortunately materialised; given that Mangala is therefore entitled under article 1384(1) Code civil to have Gillet and Drouin held liable for the harm he suffered, subject to the medical examination ordered by the trial judge and the interim payment of 30,000 francs;

For these reasons holds Drouin and Gillet liable under article 1384(1) Code civil for the accident sustained by Mangala on 12 July; confirms the requirement for a medical examination of Mangala in order to determine the true extent of his permanent disability, and makes him an interim award of 30,000 francs, payable on the promulgation of this decision.

Subsequent Developments

Doctrine upheld. See Jurisclasseur “Responsabilité Civile”, Dominique Denis, Fasc. 150-2: “The principal of alternative full possession (“garde alternative”) has sometimes been excluded in the area of hunting accidents. Just as in the area of sport, the problem is that, if the victim of the accident cannot prove fault on the part of one of the participants considered as the author of the damage, he runs the risk of seeing his claim refused on the basis of Article 1384, para. 1 if he cannot either show that a particular thing caused the damage and who was in full possession of it (“son gardien”): in the case of simultaneous shots it is not known from which gun came the pellets which wounded the victim. In order to avoid this result, that is to say the absence of indemnification of the victim, the courts use what is really only a last resource: the system of common full possession (“garde en commun”). Thus, it has been held that, in a hunting party organised in common, the huntsmen were common full possessors (“co-gardiens”) of all the arms used, for these arms “were intended for the destruction of the wild animals they might come across, and , in case of danger, for the common defence of all the huntsmen” (Court of Appeal of French Equatorial Africa, 5 April 1957: “the damage suffered by a tracker killed during an elephant hunt was the unavoidable consequence of the common full possession (“garde commune”) of the arms being used”). It has also been held that, in case of simultaneous shots the huntsmen could be the persons in full possession (“gardiens”) of the one cluster of shot which hit the victim (Civ.2, 20 November 1957, 5 February 1960 and 11 February 1966). The Law of 11 July 1966 made the Automobile Guarantee Fund liable to indemnify damage which arise from hunting accidents where the authors of the damage are unknown or not insured. In spite of this, the courts continue to use the notion of common full possession (“garde en commun”) in cases of hunting accidents (Civ.2, 13 March 1975) or in the case of persons who, with guns of which they have full possession (“la garde”) fire a rifle salute on the occasion of a wedding, in accordance with local custom, and wound other people (Civ.2, 15 December 1980, Bull. No. 269)”. The Court of Cassation does not seem to have passed upon this problem since. On the other hand, a more recent decision of the Court of Appeal of Versailles (20 January 1994, Dalloz IR, P.104) sets out clearly the conditions in which this notion of collective full possession (“garde collective”) can be invoked: “in order that the notion of collective full possession (“garde collective”) may be invoked, while those who shoot during a hunt have full possession (“garde”) of their respective guns, they must also, if they are to be liable for damage on the basis of Article 1384, para. 1, have participated in a common action and carried out acts which, being connected and inseparable, caused the damage”.