Crain v. State

• Decision Date: 03 October 1945
• Docket Number: 2743.
• Citation: 23 So.2d 336
• Court: Court of Appeal of Louisiana — District of US
• Parties: CRAIN v. STATE.

23 So.2d 336

CRAIN v. STATE.

No. 2743.

Court of Appeals of Louisiana, First Circuit

October 3, 1945

Rehearing Denied Nov. 15, 1945.

Writ of Error Refused Jan. 7, 1946.

O. H. Carter of Franklinton, and Bascom D. Talley, Jr., of Bogalusa, for appellant.

Arthur B Hammond, Atty. for Dept. of Highways, and Jos. A. Loret Asst. Atty. for Dept. of Highways, both of Baton Rouge, for appellee.

LE BLANC Judge.

At its regular session for the year 1944 the Legislature enacted into law Act No. 341 in which it was provided 'that suit against the State of Louisiana through the Department of Highways is hereby authorized to be filed by W. Edmond Crain, a citizen and a resident of the Parish of Washington, State of Louisiana, upon his claim for damage resulting from accident and personal injury alleged to have occurred on the 27th day of July, 1931, by the negligence of persons in the employment of the Louisiana Highway Commission.' � 1. The legislative act then fixed the forum of such suit, if instituted, as either the District Court at the State Capital or the Twenty-second Judicial District Court of Louisiana, in and for the Parish of Washington, where the accident, injury and the damage is alleged to have occurred. It then further provided: 'That the defendant in the suit herein authorized shall not be entitled to file a plea of prescription barring said claim; provided, any suit entered upon authority herein granted shall be filed not later than the lst day of October, 1944.' � 4.

On September 6, 1944, the plaintiff, W. Edmond Crain, who was the party authorized in the said act, instituted suit in the Twenty-second Judicial District Court of Louisiana, in and for the Parish of Washington, seeking to recover from the State of Louisiana, through the Department of Highways, damage in the sum of $18,810 for an injury to his left eye alleged to have been sustained by him on July 27, 1931, the date on which the accident is said to have occurred in the said act.

In that paragraph of his petition in which his cause of action is set out, plaintiff alleged: 'That on July 27, 1931, he was working on the highway in the Seventh Ward of Washington Parish, and while loading gravel at what is known as the Haley-Crain Gravel Pit, he was negligently hit with a shovel, in or over the left eye, by defendant's employee, in the scope of his employment, at the time he was rendered unconscious and was carried to his home by parties employed at the pit; * * *.'

After service the State of Louisiana and the Department of Highways of the State of Louisiana, the State appearing through the said Department of Highways, came into court and through duly authorized attorneys, filed an exception of vagueness to the plaintiff's petition. The exception was based on two grounds: (1) That the petition failed to state the name and surname of the employee who is alleged to have negligently struck the plaintiff, and (2) that the petition failed to disclose for whom plaintiff himself was working at the time he was injured. Without the necessity of having the court pass upon the exception, plaintiff filed a supplemental petition in which he gave the name of the employee who he alleged had caused his injury and also alleged that he himself was employed at the time by the Louisiana Highway Commission.

After this supplemental petition was filed, the defendant filed an exception of no cause or right of action which is grounded on two propositions: (1) That plaintiff's cause of action, if he has any, having arisen out of an accident which occurred at a time when he was employed by the Louisiana Highway Commission, and whilst he was engaged in the scope of that employment, was one exclusively under the Workmen's Compensation Statute of Louisiana, Act No. 20 of 1914 and its amendments, and (2) that if he had a cause of action in tort, under the allegations of his petition, the defendant cannot be held liable under the fellow-servant rule.

The matter was argued and submitted to the lower court on the exception and after due consideration the district judge wrote an opinion for the record in which he sustained the exception of no cause of action holding that plaintiff's remedy, if he had any, was exclusively one under the Employers' Liability Act, but even were that not so, under the allegations contained in the petition the defendant would be relieved from libility under the fellow-servant doctrine. From a judgment sustaining the exception and dismissing his suit, plaintiff has taken this appeal.

There can hardly be any doubt but that ordinarily, under the facts as they are presented in his petitions, plaintiff would be relegated to a suit for compensation under the Employers' Liability Law, Act 20 of 1914, as it is specifically provided by that law, under Sec. 34, that the remedy for an injury caused by accident to an employee while, within the course and scope of his employment, is exclusively one under its provisions. The fact that this plaintiff was employed by a Department of the State, did not affect his status as an employee under that Act, as under Subsec. 1 of Sec. 1 all employees of the State, except State officials, come within its terms and as to them the act is compulsory, exclusive and obligatory the same as to any other employee. It is true that under the recent decision in the case of Martin v. State of Louisiana, 205 La. 1052, 18 So.2d 613, he could not have instituted a suit for compensation against the State itself, under the general provisions of the Act, but most probably he could have maintained a cause of action for compensation against his immediate employer, the Louisiana Highway Commission, now known as the Department of Highways. We think it is important to observe that under the decision referred to, if he had wanted to sue the State itself for compensation, it would have been necessary for him to obtain the same legislative authority he had to obtain in order to file the present suit for damages under the general tort law of the State. In view of this it would seem that the power and authority of the Legislature in granting the authority to sue was supreme. In other words it could as readily have authorized him to sue the State for compensation as to sue it for damages arising out of tort, and if in its wisdom it chose to give him the authority to sue for damages instead, that is a matter of legislative policy with which the courts are not concerned.

The Legislature is the law making body of the State, vested with the power and authority to enact any law it sees fit so long as it does not enact one which is in contravention of any of the provisions of the Constitution of the United States or of the Constitution of the State of Louisiana. By virtue of its authority under Art. 3, Sec. 35 of the Constitution of 1921, the State may waive its immunity against suit whenever it chooses to do so. All that is required is that it shall enact a law as it did in this case and that in that law it shall provide a method of procedure and the effect of the judgment which may be rendered thereunder. There is no question that in this instance the act complied with all the requirements of these provisions.

In the case of Varnado v. State, 18 La.App. 624, 136 So. 771, 773, in considering a statute similar to the one we are here concerned with, it was stated that: 'The power vested in the Legislature * * * is not limited to any particular kind of rights or causes of action. The Legislature is vested with discretionary power that it may or may not exercise, as it is deemed best. The power is unlimited, except that none can be given to transcend the powers vested in the United States through the Constitution of the United States, which is the Supreme Law of the land.' The only criticism that can be made of that statement is that it does not go far enough in its exception for, as we have already pointed out, we do not think that the Legislature in enacting such a statute could transcend the Constitution of the State any more than it could transcend the Constitution of the United States.

Assuming now that the Legislature is vested with such unlimited power what is there to prevent it from investing this plaintiff with authority and permission to sue the State in an action in tort, even though there is an...