Fullilove v. U.S. Cas. Co. of N. Y.

• Decision Date: 12 April 1961
• Docket Number: No. 9379,9379
• Citation: 129 So.2d 816
• Parties: Dixie L. FULLILOVE et al., Plaintiffs-Appellants, v. U.S. CASUALTY COMPANY OF NEW YORK et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 816

129 So.2d 816

Dixie L. FULLILOVE et al., Plaintiffs-Appellants, v. U.S. CASUALTY COMPANY OF NEW YORK et al., Defendants-Appellees.

No. 9379.

Court of Appeal of Louisiana, Second Circuit.

April 12, 1961.

Rehearing Denied May 10, 1961.

Certiorari Denied June 22, 1961.

Jackson B. Davis, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for Dixie L. Fullilove, Mrs. Myrtle Webb Fullilove and Dottie Jean Fullilove, plaintiffs-appellants.

Ferdinand A. Cashio, Shreveport, for State of Louisiana, defendant-appellee.

Before GLADNEY, AYRES, and BOLIN, JJ.

AYRES, Judge.

This case, as well as the case of Caldwell et al. v. U.S. Casualty Company of New York et al., 129 So.2d 813, with which it was consolidated for the purpose of trial, arose out of an accident of June 13, 1958, on U.S. Highway 80, in Lincoln Parish, when an automobile driven by Henderson Jordan and an automobile of plaintiff, Dixie L. Fullilove, occupied by him and his family, driven by Buford Caldwell, while traveling in opposite directions, violently collided. As a result of this crash and collision, Jordan, Caldwell, and Ronnie Webb Fullilove, minor son of Dixie L. Fullilove and his wife, were killed, and Mr. and Mrs. Fullilove and their minor daughter, Dottie Jean Fullilove, were seriously and severely injured.

At the time of the accident, Jordan was an employee of the Department of Public Works, State of Louisiana.

The plaintiffs herein, Dixie L. Fullilove and his wife, Mrs. Myrtle Webb Fullilove, in their individual capacities, and he, for the use and benefit of his minor daughter, instituted this action for damages not only against the State of Louisiana, through the Department of Public Works, by virtue of and pursuant to joint resolutions of both Senate and House of Representatives of the Legislature of Louisiana, but against the U.S. Casualty Company of New York, the insurer of the car driven by Jordan at the time of the accident, and the Southwestern Fire & Casualty Company, the insurer of Jordan's family car. A smilar action, pursuant to similar joint resolutions of the Legislature, was instituted by Caldwell's father and mother and the administrator of his estate against these defendants for the recovery of damages allegedly sustained through Caldwell's death.

Following the institution of these actions, the U.S. Casualty Company of New York paid, to plaintiffs in these actions, the sum of $10,000, the amount of its maximum contractual obligation under its policy, one-fourth of which was applied to the claims of the Caldwells and three-fourths to those of the Fulliloves. Accordingly, that defendant was dismissed from the suit.

Southwestern Fire & Casualty Company resisted the actions of plaintiffs on two counts: (1) A denial of negligence on the part of Jordan and (2) a denial of liability on the basis that its insurance policy did not extend to or cover Jordan as an insured at the time of the accident.

The State of Louisiana excepted to plaintiff's actions as disclosing no cause or right of action on the basis that the Louisiana Legislature was constitutionally prohibited from waiving the State's sovereign immunity from suits arising out of torts committed by its agents, servants, and employees. This exception was predicated on the language of Art. III, Sec. 35 of the Louisiana Constitution of 1921, LSA as it then read. Therefore, it was contended, notwithstanding the legislative permission for these plaintiffs to institute and prosecute these actions, that they could not do so because of the State's sovereign immunity from liability. Relying on the decisions in the cases of Marler v. State, La.App.2d Cir., 1955, 78 So.2d 26; St. Julian v. State, La.App.1st Cir., 1955, 82 So.2d 85; and the authorities therein cited, the district court overruled the State's exceptions, following which the State answered denying liability on all counts.

Following the filing of answers by the State and by Southwestern Fire & Casualty Company, placing at issue all questions as to Jordan's alleged negligence, as well as the alleged contributory negligence of plaintiffs and of the deceased parties, the nature and extent of the damages and losses sustained by plaintiffs, and the quantum of awards, in the event of the establishment of liability on the part of the defendants, the cases were tried and submitted to the court for decision. While the cases were under consideration and advisement by the trial court and before the rendition of judgments, the Supreme Court, in its decision in the case of Duree v. Maryland Casualty Company, 238 La. 166, 114 So.2d 594, sustained, in that action, the position taken by the State in these cases, that is, that the legislative permission to institute an action against the State could not be construed as a waiver of the State's sovereign immunity for liability for torts of its servants; that the language of Art. III, Sec. 35 of the Constitution effectively barred and precluded the Legislature from waiving the State's sovereign immunity from liability and that, hence, one injured as a result of a tort of an agent or servant of the State could not, under any circumstances, hold the State liable therefor. As a result of that decision, the trial court recalled its prior decision on the State's exceptions and, in its final opinion, sustained them and dismissed the State from the suits.

Judgment was rendered against the Southwestern Fire & Casualty Company, the only remaining defendant, for the amount of its maximum contractual liability under its policy. That defendant appealed to this court and the judgment was affirmed. Caldwell v. United States Casualty Company of New York, La.App., 120 So.2d 285. However, writs of certiorari were granted by the Supreme Court and, on review of the cases there, it was concluded defendant's policy did not cover Jordan at the time of the accident. Accordingly, the judgments of this and the trial court were reversed and plaintiffs' actions were dismissed as to that defendant. 240 La. 859, 125 So.2d 389.

From the judgments dismissing plaintiffs' suits against the State, after trial of the cases on their merits, but in sustaining the exceptions, the plaintiffs prosecute these appeals.

The basis for the present appeals may now be stated.

Since the decision of the court below, founded upon the Duree case, Art. III, Sec. 35 of the Constitution has been amended and completely rewritten, so that it now reads 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 govermental 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; the procedure in such suits, in the absence of applicable procedural rules promulgated by the Legislature, to be the same as in suits between private litigants. No judgment against the state or any other public body shall be exigible, payable or paid except out of funds appropriated for payment thereof. The Legislature may waive any prescription or peremption which may have accrued in favor of the state or other public body against any claim or claims on which suit is so authorized; and any prescription or peremption which may heretofore have accrued, or which would otherwise accrue prior to January 1, 1962, against any claim against the state or other public body on which suit heretofore has been authorized by the Legislature is hereby waived, provided that suit on such claim is brought prior to January 1, 1962. No suit authorized under this constitutional provision shall be instituted in any court other than a Louisiana State Court. 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.' (Emphasis supplied.)

This amendment, which was adopted at the election held on November 8, 1960, Constitutionally overruled the holding in the Duree case, and by its express terms declared 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.'

Thus, it is contended there is now no question but that the authorizations which the Legislature granted these plaintiffs to bring these actions are now valid waivers of the State's sovereign immunity both from suit and liability, and that any deficiency which may have existed as to its sufficiency as a basis for a valid judgment against the State has been Constitutionally removed.

And, it is contended by plaintiffs that the 1960 amendment expressly related to legislative authorizations granted prior to its adoption, and that it was intended to, and did, apply to any litigation then pending, and not final, which was legislatively authorized.

The questions posed by these appeals are these:

1. Does the constitutional amendment above quoted render valid the...