Opinion
No. 5019.
June 15, 1960. On Rehearing April 10, 1961.
Action against state agency to recover for personal injuries assertedly due to negligence. The Seventeenth Judicial District Court, Parish of Lafourche, P. Davis Martinez, J., rendered judgment for plaintiff and defendant appealed. The Court of Appeal, Tate, J., held that the constitutional amendment empowering the Legislature to waive governmental tort liability immunity and providing that each authorization previously or thereafter granted for suit would be valid for all purposes validated the Legislature's previously granted authority to maintain the instant suit.
Affirmed.
W. Crosby Pegues, Jr., Philip K. Jones, D. Ross Banister, Baton Rouge, for appellant.
Alex P. Rouly, St. Martinville, T.C.W. Ellis, New Orleans, for appellee.
Before ELLIS, LOTTINGER and TATE, JJ.
Before ELLIS, LOTTINGER, HERGET, JONES and LANDRY, JJ.
The state Department of Highways appeals from judgment awarding plaintiff-appellee the sum of $4,000. Pursuant to legislative authorization conferred by Act 282 of 1958, the plaintiff filed this suit to recover damages for personal injuries allegedly resulting from the negligent performance of his duties by a bridge tender employed by the defendant agency.
On June 1, 1959, four days before the trial court judgment in the present suit, our Supreme Court rendered its decision in Duree v. Maryland Cas. Co., 238 La. 166, 114 So.2d 594, which held that an act of the legislature authorizing a suit, although effective in waiving the traditional immunity of the state to suit, did not waive the state's immunity from liability.
Based upon this decision, the defendant Department on June 4, 1959 again filed an exception of no cause of action by which it re-urged its contention that the State of Louisiana and its agencies, including the defendant Department, are immune from any tort liability founded upon the negligent acts of its employees, despite any legislative waiver of immunity to suit. The judgment below was nevertheless rendered, since the Duree decision was not at that time final.
The sole basis of this appeal is the defendant's contention that under the Duree decision appellant, as a state agency, is immune from liability for the negligence of its employees.
The state Supreme Court's interpretation of a provision of our state constitution is of course binding upon the inferior tribunals of Louisiana. The exception of no cause of action must therefore be sustained, and the plaintiff's suit dismissed. See Cotton v. Bossier Parish School Board, La. App. 2 Cir., 117 So.2d 682, 683.
In an effort to avoid the effect of the Duree decision, the astute counsel for the plaintiff-appellee urges that the judgment below was rendered as the result of an agreement of the attorneys representing the State to the effect that (in view of the clear negligence of the state employees) they would consent to judgment in this reduced amount in order to save the State from the expenses of the litigation and from a higher award. Counsel points out that, prior to the Duree decision by the Supreme Court, it has been consistently held by our courts that the legislature was empowered to waive the state's immunity from tort liability by Article 3, Section 35, Louisiana Constitution, LSA; and that, although this view of the law proved to be erroneous, under LSA-Civil Code Article 1846(2) "A contract, made for the purpose of avoiding litigation, cannot be rescinded for error of law".
Despite such ably-argued contention, the record before us does not reflect that the judgment was awarded as the result of any binding agreement. Rather, it shows that the judgment was rendered as the result of a short trial at which the negligence of the state employees and the injuries to the plaintiff were proved, and at which it was stipulated that the amount of any damages to be awarded would be $4,000.
Although we are familiar with the commendable efforts of counsel for state agencies, in some cases where there has been clear negligence on the part of state employees, to stipulate to a lesser figure of damages in order to save the State from the expense of protracted proceedings and from a greater award, we cited to no authority, nor is any claimed, by which state employees are entitled to enter into binding contracts of compromise of such litigation; nor does the record reflect that such was done. We are thus unable to accede to the plaintiff-appellee's persuasive contentions.
For the foregoing reasons, the judgment appealed is reversed and the present suit dismissed.
Reversed.
On Rehearing
In our original opinion, we dismissed the plaintiff's suit on an exception of no cause of action following the Supreme Court's decision in Duree v. Maryland Casualty Co., 1959, 238 La. 166, 114 So.2d 594. Plaintiff, Miss Plaisance, was injured on December 23, 1957, when an automobile in which she was a passenger struck the partially open apron of the La Rose Pontoon Bridge No. 3, crossing Bayou Lafourche. Plaintiff obtained authority to sue the Louisiana Department of Highways by Act 282 of the 1958 Session of the Louisiana Legislature. The lower court awarded judgment for plaintiff after a short trial at which the negligence of the state employees and the injuries to the plaintiff were proven, and at which time it was stipulated that the amount of any damages to be awarded would be $4,000.00. Also, the facts in the record are not disputed and they definitely establish liability on the part of the defendant in that amount.
On June 1, 1959, the Supreme Court in the case of Duree v. Maryland Casualty Co., 1959, 238 La. 166, 114 So.2d 594 held that the Legislature did not have authority to waive the state's sovereign immunity from liability in Tort under Article III, Section 35 of the Constitution.
This Court granted a rehearing to appellee, as a certain amendment to Article III, Section 35 of the Louisiana Constitution was being submitted to the public for vote, the amendment being aimed at restoring the rights of individuals to sue and recover from state administrative bodies for tortious acts, upon obtaining legislative authorization therefor.
The electorate did approve the amendment to the Constitution in the election of November 1960. The pertinent parts of the amendment read as follows:
"The Legislature is empowered to waive, by special or general laws or resolutions, the immunity from suit and from liability of the state, and of parishes, municipalities, political subdivisions, public boards, institutions, departments, commissions, districts, corporations, agencies and authorities and other public or governmental bodies; and each authorization by the Legislature for suit against the State or other such public body, heretofore and hereafter enacted or granted, shall be construed to be and shall be effective and valid for all purposes, as of and from the date thereof, as a waiver of the defendant's immunity both from suit and from liability. The Legislature shall, by special or general laws or resolutions, prescribe the procedural rules, including rules of venue and service of process, to govern suits against the state and other public bodies; * * * In the case of any such claim on which suit heretofore has been authorized by the Legislature, and the suit was dismissed on the ground that the defendant's immunity from liability had not been waived, another suit on the same claim may be filed at any time prior to January 1, 1962, and such suit shall not be subject to the defense of res judicata based on the dismissal of the prior suit on such claim."
It is clear that the Constitutional amendment gives an individual a right of action in tort against the state after proper authorization by the Legislature. The Legislature, pursuant to the authorization contained in the Constitutional amendment, has prescribed the procedural rule to be followed in such suits in LSA-R.S. 13:5101 to 13:5110.
Since the Constitutional amendment states that "each authorization by the Legislature for suit against the State or other such public body, heretofore and hereafter enacted or granted, shall be construed to be and shall be effective and valid for all purposes, as of and from the date thereof, as a waiver of the defendant's immunity both from suit and from liability," the present case clearly falls into its purview, and the effects of the Duree decision are abrogated. (Emphasis added.)
For the above and foregoing reasons, our original opinion and decree is recalled and annulled and it is now ordered, adjudged and decreed that the judgment appealed from be and it is affirmed at defendant's costs.
Original decree recalled.
Judgment of trial court affirmed.