Arceneaux v. Louisiana Highway Com'n

• Citation: 5 So.2d 20
• Decision Date: 15 December 1941
• Docket Number: 17671.
• Court: Court of Appeal of Louisiana (US)
• Parties: ARCENEAUX v. LOUISIANA HIGHWAY COMMISSION.

5 So.2d 20

ARCENEAUX v. LOUISIANA HIGHWAY COMMISSION.

No. 17671.

Court of Appeal of Louisiana. Orleans.

December 15, 1941

Appeal from Twenty-fourth Judicial District Court, Parish of St Charles; L. Robert Rivarde, Judge.

Joseph F. Blasi, Jr., and Harry T. Wilkins, both of New Orleans James P. Vial, of Hahnville, and John J. Blasi, of New Orleans, for plaintiff-appellant.

Arthur B. Hammond, of New Orleans, and Tom M. Hayes, Jr., and Joseph A. Loret, both of Baton Rouge, for defendant-appellee.

JANVIER Judge.

By Act No 359 of 1940, Webster J. Arceneaux was authorized to file against the State of Louisiana through the Louisiana Highway Commission suit for "damages resulting from the accident and personal injuries alleged to have occurred on August 24th, 1935, by the negligence of the Louisiana Highway Commission through its employees and/or agents."

Accordingly, on September 27, 1940, Arceneaux, in the Twenty-fourth Judicial District Court for the Parish of St. Charles, filed this suit alleging that on the 24th of August, 1935, he sustained serious personal injuries when the automobile in which he was riding was overturned as the result of striking "a hole, or break, in the surface" of the highway. He alleged fault on the part of the Highway Commission "through its employees and/or agents acting within the scope of their employment, in leaving a dangerous depression, hole or obstruction on the said public highway unguarded and without warning signs, notices and/or danger lights * * *."

And he further alleged "that said Highway Commission, its employees and/or agents were also negligent in failing to keep said highway in a proper state of repair, and more particularly in failing to repair this depression, hole or obstruction."

He did not expressly charge that the depression or defect had been in existence for any particular period of time, nor that the Highway Commission, prior to the accident, had knowledge, actual or constructive, of its existence.

The Department of Highways of the State of Louisiana, successor to the Louisiana Highway Commission, appeared and filed exceptions asserting that the petition "does not disclose a legal cause or right of action against defendant." Before this exception could be heard in the District Court, plaintiff, with leave of court, filed a supplemental petition in which he made the following allegations:

"VII. a. Petitioner alleges upon information and belief that the said hole or break in said highway had been there for several months prior to the date of said accident; that it was a matter of common knowledge amongst the people who lived in the vicinity that the said hole or break in said highway existed.

"VIII. a. Petitioner is informed and so believes and alleges that said Highway Commission, and/or its agents and employees acting within the scope of their employment, had knowledge of said hole or break in said highway, or in the alternative that said Highway Commission and/or its agents and employees, acting within the scope of their employment, should have known of the existence of said hole or break in said highway."

When this supplemental petition was filed, defendant filed another appearance "reiterating and reaffirming" the exceptions already filed, and excepting to the supplemental petition on the ground that it "changes the issue" and "makes allegations * * * which are contrary to the allegations set forth in the original petition."

There was judgment maintaining the exception of no cause or right of action and dismissing the suit. Plaintiff has appealed.

Counsel for defendant argue that "In a suit against the State or a political corporation for damage or injury resulting from a defect in a public way under its control, in order to state a cause of action the plaintiff's petition must allege notice, either actual or constructive, of the defect by the defendant before the damage or injury was caused thereby."

Starting with the premise that since the original petition did not contain an allegation charging defendant with knowledge, actual or constructive, of the alleged defect, but on the contrary, contained allegations which counsel say should be construed as showing that there was no such knowledge, counsel contend that the supplemental petition is inconsistent with and contradictory of the said original petition since it, the said supplemental petition, charges that there was such knowledge of the defect.

It is conceded that where immunity has been waived and legislative permission to sue a state or a political corporation has been granted, such permission does not include admission of liability and that consequently a plaintiff must show all of the essential facts from which liability results, and it is also conceded that in such a suit as this, where liability is said to result from a defect in a street or a roadway, there is no liability unless the defendant is shown to have had prior knowledge of the existence of the defect, or unless it is shown that it actually existed for so long a time prior to the accident that it is fair to presume that there was such knowledge, or unless, under the circumstances, it is proper to say that, as a matter of law, the defendant ought to have had such knowledge. In other words, the rule in suits against the State or against one of its political corporations, where immunity has been waived, is exactly the same as that which has been recognized in suits against municipalities, and that rule has been many times stated, notably in Miller v. City of New Orleans, La.App., 152 So. 141, 142, in which we said: " * * * Municipalities are liable only if the authorities have had actual or constructive knowledge * * *."

It is true that in the original petition there is no charge that there was such prior knowledge that the defect existed, though there are allegations which, according to counsel for plaintiff, may be interpreted as charging that there was such prior knowledge. For instance, in paragraph IX of the original petition it is alleged that the defendant was negligent "in leaving a dangerous depression, hole or obstruction * * * unguarded and without warning signs, * * * ".

Counsel point to the word "leaving" and argue that it indicates that there must have been knowledge of the defect that if one is charged with having "left" a hole unguarded, he is charged by inference with having had knowledge that there was such a hole in existence. Counsel for defendant maintain that no such interpretation may be given to the above-quoted words, and they say, moreover, that there are other allegations which, if true, negative the idea that defendant could have had knowledge of the defect. They point to the charge that the defect was "a dangerous hazard * * * because of its invisibility to motorists on said highway." And they also point to the charge that "said hole or break in the highway was an obstruction beneath the surface of the highway" and to the further allegation that because of this "it was impossible for the operator of said vehicle to have noticed or seen same." We think these last quoted charges have been misinterpreted. They do not mean that the defect could not have been discovered but merely that, prior to...