Mallard v. State

• Decision Date: 01 December 1939
• Docket Number: 5996.
• Court: Court of Appeal of Louisiana — District of US
• Parties: MALLARD v. STATE ET AL.

194 So. 447

MALLARD v. STATE ET AL.

No. 5996.

Court of Appeal of Louisiana, Second Circuit.

December 1, 1939

Rehearing Denied Jan. 5, 1940.

Writ of Certiorari and Review Denied March 4, 1940.

Appeal from Second Judicial District Court, Parish of Jackson; J Rush Wimberly, Judge.

Action by Roe Mallard against the State of Louisiana and the Louisiana Highway Commission to recover damages for personal injuries sustained in a collision between plaintiff's truck and defendant commission's truck. Judgment for plaintiff, and defendants appeal.

Affirmed.

N. S Hoffpauir, of Crowley, and E. R. Stoker, David M. Ellison and Bert E. Durrett, all of Baton Rouge, for appellants.

Hillyer S. Parker, of Monroe, for appellee.

TALIAFERRO, Judge.

The State and the Louisiana Highway Commission are impleaded as defendants herein under the authority conferred by Act No. 287 of the Legislature of 1938.

Plaintiff's truck and trailer, heavily loaded with logs, on November 8, 1935, collided with a truck of the Highway Commission, operated by its employee, J. A. Wright, on the Jonesboro highway, near Eros, in the Parish of Jackson. He was seriously injured in the collision and sues to recover a large amount of damages on account of such injuries, the pain and suffering incident thereto, and for physician's and hospital expenses incurred in treating him. He charges that Wright's negligence alone caused the collision. The specific acts of carelessness and negligence accredited to Wright will be hereinafter set out.

Defendants, through different counsel, made separate appearances. Each filed exception of no cause and of no right of action. These were overruled.

The answer of the State, through the Attorney-General, denies the essential allegations of the petition, coupling therewith the following special defenses, viz.:

1. That Wright was not an agent, servant, or employee of the State when this accident occurred.

2. That should it be held that under the provisions of said Act No. 287 of 1938 the State is liable in damages to plaintiff, in such event it is specially pleaded that said act is null, void and unconstitutional for the reason that plaintiff " had not a cause of action for damages against the State of Louisiana at any time within one year following the date of said accident."

3. Alternatively, that plaintiff's own negligence contributed to the accident as a proximate cause thereof, in that he did not at the time have his own truck under such control as to enable him to stop it before the collision occurred.

The answer of the Highway Commission is in effect practically the same as that of the State, with like special defenses, however, while assailing the constitutionality of said Act, no specific grounds therefor are set forth. This defendant additionally pleads that the alleged claim of plaintiff against it was not paid for these reasons, to-wit:

(a) That this defendant is not liable for such payment, and

(b) Alternatively, that all funds in its hands, due or accruing to it, are solely dedicated by Par. (c), sec. 22 of Art. VI of the Constitution of the State" to the maintenance and construction of roads and bridges, and no part thereof may be legally used for the payment of plaintiff's claim."

Inferentially, the lower court overruled the attack on the constitutionality of Act No. 287 of 1938. Judgment for $16,117.50 against defendants insolido was rendered. They have appealed.

In this Court, attorney for the Highway Commission only argued the case. Written briefs filed disclose that the attorneys who prepared same, designate themselves as " attorneys for the Louisiana Highway Commission." However, we do not understand that the State has acquiesced in the judgment appealed from, nor that its appeal has been abandoned. We shall consider and dispose of the case, so far as concerns the State's interest, in the same manner as we do the Commission's, giving to it the benefit of the defenses urged in its answer and also of the briefs filed and argument had by attorneys for the Commission.

The Legislature, by Act No. 287 of 1938, authorized plaintiff to institute suit against the State " through the Louisiana Highway Commission * * * upon his claim for damage resulting from accident and personal injuries alleged to have occurred on November 8, 1935, by the negligence of persons in the employment of the Louisiana Highway Commission." Sec. 2 of the Act designates the venues wherein the suit could be brought and provides that citation be served on the Chairman of the Commission. Sec. 3 authorizes the Chairman of the Commission to compromise said claim. Secs. 4 and 5 of the Act read as follows:

" That the defendant in the suit herein authorized shall not be entitled to plead prescription barring said claim; provided, any suit entered under authority herein granted shall be filed not later than the 1st day of January, 1939. * * *

" That if the judgment rendered in said suit be against the State, or be compromised by the Louisiana Highway Commission it shall be paid by the Louisiana Highway Commission out of any funds belonging to said Commission which may be legally used for the payment of said judgment."

In brief, defendants attack the act in question as being unconstitutional on these grounds:

" 1. A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts. R.C.C. Art. 8.

" 2. The Act deprives defendant of a vested right, i. e., the plea of prescription in contravention of Article IV, Section 15 of the Constitution of Louisiana.

" 3. The Act seeks to deprive the Louisiana Highway Commission of funds dedicated to the construction of roads and bridges in contravention of Article VI, Section 4 [§ 22 (c)] of the Constitution of Louisiana.

" 4. The Act is a special law pertaining to a civil action in contravention of Article IV, Section 4 [§ 22 (c)] of the Constitution of Louisiana."

Excepting number two, none of these charges against the Act's constitutionality is alleged in the Commission's answer. The State, while averring that the Act is unconstitutional, sets up no specific ground thereof. Under the well settled jurisprudence of the State, we would be warranted in ignoring all points of attack save number two in defendants' brief. However, all things considered, we have decided to pass on all four of the grounds of attack.

We are unable to perceive any force whatever in proposition number one. It is a universal rule of law that the sovereign and also its governmental agencies in the performance of governmental functions, may not be sued in tort by its own citizens in its own courts without the State's consent or authority being first yielded. In this State such consent can only be given by the Legislature.

Sec. 35 of Art. III of the Constitution, concerning this question, provides: " Whenever the Legislature shall authorize suit to be filed against the State, it shall provide a method of procedure and the effect of the judgments which may be rendered therein."

This organic permit is the authority for said Act 287. This Act simply permits plaintiff, a citizen of the State, to sue the sovereign on an alleged claim for damages against it, a right and a privilege withheld from him prior thereto. It does not impair the obligation of any contractual relation whatever, and operates retrospectively only to the extent that the alleged pre-existing damage claim may be sued upon. Of course, no such remedial legislation would be passed before such a claim arose. This could only be done by and through a statute having general application. Such a statute, if constitutional, would expose the State to much harassing and, ofttimes groundless, litigation. Hence, none has been enacted.

It is argued that this Act purports to have retroactive effect because it denies to the State the right to plead prescription against the claim in question, alleged to have already accrued. This contention will be fully discussed as we proceed with this opinion.

Likewise, we do not think there is merit in attack number two, which is that the Act attempts to divest the State of a vested right in that it inhibits it from pleading the prescription of one year, established by Arts. 2315 and 3536 of the Civil Code. We think this provision purely surplusage.

Prescriptions, liberandi causa, are established to bar the right of a person to invoke judicial aid to enforce obligations, generally of a monetary character. They do not, nor are they intended to, destroy the obligation or the debt which arose on the happening of an event. The right only to enforce same is thereby affected. There is wide difference between the arising of a claim or money demand against a person and the accrual of a right of action to enforce it. If there exists no legal impediment to such enforcement, then, unless otherwise fixed by law, prescription begins to run simultaneously with the arising of the claim or money demand; but, if the claimant has no legal remedy whereby the claim or demand may be enforced judicially, surely the claim or demand may not be destroyed by prescription or his inaction before a remedy is accorded him. May v. State et al., 133 Ind. 567, 33 N.E. 352.

The limitation of time on the right to sue, fixed by the above mentioned codal articles, applies only to those cases wherein the cause or right of action arose simultaneously with the happening of the event, the basis of the cause of action, or thereafter, at which time there was no legal impediment against seeking judicial recovery.

Reason does not support the contention that, notwithstanding the total lack of right on the part of an individual to judicially enforce payment of that which is due him, on account of lack of...