Fouchaux v. Board of Com'rs of Port of New Orleans

• Decision Date: 06 February 1939
• Docket Number: 16691
• Parties: FOUCHAUX v. BOARD OF COM'RS OF PORT OF NEW ORLEANS.[*]
• Court: Court of Appeal of Louisiana — District of US

186 So. 103

FOUCHAUX v. BOARD OF COM'RS OF PORT OF NEW ORLEANS.^[*]

No. 16691

Court of Appeal of Louisiana, Orleans.

February 6, 1939

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Action by Douglas Fouchaux against the Board of Commissioners of the Port of New Orleans for injuries sustained when driving a tractor and trailer upon a defective wharf elevator. From an adverse judgment, plaintiff appeals.

Affirmed.

Porteous, Johnson & Humphrey, of New Orleans, for appellant.

Lewis L. Morgan and Philip S. Pugh, Jr., both of New Orleans, for appellee.

Adam H Harper and James W. Hopkins, both of New Orleans, amici curiae

JANVIER, Judge.

The question presented here is one of law: Whether the Board of Commissioners of the Port of New Orleans may be held liable in tort. The issue was raised by exception of no cause or right of action, which, in the district court, was sustained with the consequent dismissal of the suit.

Douglas Fouchaux alleges that on June 15, 1935, he was in the employ of the International Harvester Company as a laborer and that he was employed on a wharf adjoining one operated by defendant, which we shall hereafter refer to as the " Dock Board" . He charges that he was a tractor driver for his employer and that it was necessary for him to drive the tractor, with loaded trailers, upon a large elevator of defendant located on the said wharf and that, as he drove the said tractor and first trailer upon it, the elevator, because of defects, fell and he was hurt. He further charges that the said elevator and all machinery and equipment were the property of defendant Dock Board and that it was maintained and supervised by the said Dock Board; that, to the knowledge of the officials of defendant, the said elevator had fallen on a former occasion. He charges, also, that the said Dock Board " is a Public Board of the State of Louisiana, created by law, with the power to sue and be sued ***" .

The sole defense is that the Dock Board is an agency of the sovereignty, to-wit, the State of Louisiana, and that, therefore, it cannot be sued except with the permission of the State, and we may say at this point that, of course, were we required to accept as true the charge that the said Board was " created by law with the power to sue and be sued", as plaintiff alleges, the matter, so far as the exception is concerned, would end there. But, being a public board created by law, we cannot accept as true that statement unless we find that the applicable statutes do authorize the said Board to sue and authorize persons dealing with it, or persons having claims against it, to sue it.

In support of its contention that such an action as this may not be maintained, the Dock Board calls attention to two cases decided by the Supreme Court of Louisiana in which that court held that no such suit might be maintained. The first of these cases was Barrett Manufacturing Company v. Board of Commissioners of Port of New Orleans et al., 133 La. 1022, 63 So. 505, 50 L.R.A.N.S., 469, the second, Lamport & Holt, Ltd. v. Board of Commissioners of Port of New Orleans, 137 La. 784, 69 So. 174.In the Lamport & Holt Case certain bags of coffee, which had been stored in one of the sheds of the Board, had been damaged by leakage through the roof of a shed. To a suit for reimbursement for the damage sustained, the Board rasied the defense that under the law which created it there was no fund and there could be no fund out of which any judgment might be paid since it was not authorized by law to provide or create any such fund; that the charges which it, the said Board, was authorized to make for the operation of the sheds and wharves, were restricted to such amounts as might be necessary to construct, maintain and manage such facilities, and that there could not be included in such charges any amount to be used for paying for damage caused, or for other such claims; that the Board did not occupy the legal status of ordinary warehousemen since it could not conduct its business at a profit; and, finally, the Board contended that, as a state agency, it could not be sued for acts of nonfeasance or of malfeasance. The court did not express an opinion upon the question of the immunity as an agency of the sovereignty, but decided the matter squarely on the ground that, under the then controlling statute, there was no fund and could be no fund out of which such a judgment might be paid. At that time the pertinent provisions of Act No. 70 of 1896, as amended by Act No. 36 of 1900, under which statutes the Dock Board was controlled, provided, as the Supreme Court found, that that Board could do nothing except collect charges, which must be fixed at such figures as would provide for the actual operating cost of the wharves, and that there was and could be no fund out of which any such judgments might be paid.

The court had already reached the same conclusion in the Barrett Case, in which the court said [page 506]: " The defendant board is not the owner in the ordinary sense of the wharf and shed in question but holds the title in trust for public purposes. The revenues of the board have already been dedicated to public use, and the board has no funds for any other purpose."

The decision in the Lamport & Holt Case was rendered on June 11, 1915. Rehearing was refused on June 29, 1915 and just at that time the Legislature of Louisiana enacted Act No. 14 of the Extraordinary Session of 1915, which was approved on June 10, 1915 and which left to the discretion of the Board the right to fix such charges as it might deem necessary. And not only did that statute leave the fixing of charges to the discretion of the Board, but from it the framers thereof omitted the very language on which the Supreme Court based its decision in the Lamport & Holt Case and in the Barrett Case. Therefore, since the effective date of the 1915 act the Board may charge, and, so far as we know, it may have charged rates sufficient to provide for payment of all judgments which may be rendered against it, and, so far as we know also, it may have provided a fund to pay any just claims which may be presented to it, and we think, therefore, that, since the Supreme Court, in those two cases, based its decisions squarely and solely on that fact-that there was not and could be no fund out of which such judgments could be paid-the result reached there is not necessarily controlling here.

It is argued by counsel for the Dock Board that, since the said statute of 1915 was approved before the decision in the Lamport & Holt Case became final, the court must have taken it into consideration when it decided that case and that, therefore, we may not now reach a conclusion based on the Act of 1915 different from that reached in the Lamport & Holt Case.

But that statute did not become effective on the date on which it was approved, and, in the second place, it could not have been availed of to create a right which did not exist prior to its enactment and the existence of which must be determined as of the day on which the damage was sustained.

Whether the Dock Board, acting as an agency of the sovereignty, enjoys immunity, is another question. Although in the Lamport & Holt Case the Supreme Court referred to the Barrett Case as having held that the Board may not be liable, " being a state agency, whose property is public and not liable to seizure", the ratio decedendi of the Barrett Case, as we have shown by quotation from that decision, was that the Board had no fund out of which any such judgment might be paid.

Counsel for plaintiff, pointing to the distinction between the conducting by municipalities of governmental functions and those of a proprietary nature, maintain that, in operating docks and wharves, a municipality-which, they say, is a state agency-acts in a proprietary capacity, and they argue from this that it follows that municipalities which operate such wharves may be sued. In support of this contention they cite Fennimore v. City of New Orleans, 20 La.Ann. 124, in which it was held that the City of New Orleans might be held liable for defects in such wharves. It will be remembered that at that time the City was operating the docks and wharves and it must be conceded that, in doing so, it was operating as an agency of the sovereignty itself and that, nevertheless, it was held that the City might be held liable for damage caused by defective wharves. But the charter of the City at that time, as now, authorized the bringing of suits against it, and, where there is such authority to sue a municipal agency of the State, it is settled that, under that authority, suits may be maintained where the function which has given rise to the cause of action is a proprietary one. But, where no authority to sue the agency exists, it is equally settled that the agency may not be sued since it is an agency of the sovereignty and since such sovereignty may not be sued without its consent. Nowhere in the statute creating the Dock Board, nor in any of the subsequent amending statutes can there be found any express authority for the maintaining of a suit against the said Board. As a matter of fact, the Dock Board seems to be recognized under the laws of this state as a little closer to the sovereignty than is an agency such as a municipality, or general agent given broad general powers. This agency, the Dock Board, is in effect the State itself. It is created for the purpose of doing one thing; that is, for the construction and operation of docks and wharves at the principal port of the State. This was recognized in State ex rel. Tallant v. Board of Commissioners of Port of New Orleans, 161 La. 361, 108 So. 770, in which the court, referring to the said Board, said [page 771]:

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