Marler v. State
| Decision Date | 31 January 1955 |
| Docket Number | No. 8234,8234 |
| Citation | 78 So.2d 26 |
| Parties | Mrs. Lois Weaver MARLER, Plaintiff-Appellee. v. STATE of Louisiana, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Fred S. LeBlanc, Atty. Gen., W. D. Atkins, Asst. Atty. Gen., for appellant.
Gravel & Downs, McSween & McSween, Alexandria, for appellee.
Plaintiff instituted this action in tort against the State of Louisiana, pursuant to authority granted by Act 153 of the 1952 session of the Legislature, as the result of an automobile and truck collision occurring July 31, 1949, at the intersection of State Highway 24 and U. S. Highway No. 165 in the Village of Forest Hill, Rapides Parish, Louisiana. The vehicles involved were a Chrysler automobile owned and driven by plaintiff's husband, Dave S. Marler, who was accompanied by plaintiff and her sister, who were sitting in the rear seat, and a wrecker truck, one of about 20 military vehicles of the Louisiana National Guard, proceeding from New Orleans to Camp Polk, near Leesville, Louisiana. In the accident Marler was killed, dying immediately following the impact; Mrs. Marler was seriously and severely injured; Miss Weaver, her sister, also received injuries and has since died; and the automobile, for all practical purposes, was destroyed.
After filing and urging an exception of no cause or right of action, which was overruled, the matter was placed at issue by defendant's answer. After trial on the merits, a judgment was rendered in plaintiff's favor for $67,684.19, less a credit of $10,000 received by plaintiff from her husband's insurer. From the judgment thus rendered, the State appealed. The inadequacy of the award is asserted in plaintiff's answer to the appeal, wherein it is prayed that the judgment be increased to $298,153.71, as originally sued for. The State reurged its exception of no cause or right of action.
The statutory enactment authorizing this proceeding reads as follows:
'An Act
To authorize Mrs. Lois Weaver Marler, a resident of Allen Parish, Louisiana, to file suit against the State of Louisiana, through the Military Department of the State of Louisiana, upon a claim for damages: on account of the wrongful death of Dave S. Marler, her husband, who was killed July 31, 1949, at the intersection of United States Highway 165 and Louisiana Highway 24, Rapides Parish, Louisiana; on account of personal injuries, mental and physical anguish, permanent disability, loss of earnings, medical expenses and property damages sustained by Mrs. Lois Weaver Marler on the same occasion, all as a result of the negligence of members of the National Guard of the State of Louisiana, then acting under the control, direction and supervision of the Military Department of the State of Louisiana, and being in the scope of their duties prescribed at the direction of the Adjutant General of Louisiana, the controlling head of said Military Department; to provide a method of procedure and the effect of the judgment which may be rendered in said suit; to authorize the Adjutant General of Louisiana to settle said claim by compromise and to provide a prescriptive period for said claim.
It is contended under this Act that it not only does not create a cause of action in favor of the plaintiff but, since the adoption of Act 385 of 1946 amending Section 35 of Art. III of the LSA-Constitution, the Legislature is prohibited from doing more than to provide a remedy for enforcing a pre-existing right and authorizing a suit against the State. In other words, the State contends that the statute only waived the State's immunity from suit and that the State's immunity from liability for tort was not waived--that the purpose of the Act was merely to waive the State's immunity from suit. Reference has been made to the constitutional provision under which the statute was enacted, which formerly read as follows:
'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.'
It is argued that, by the amendment of 1946, a very substantial and material change was effected in the constitutional provision, which, by such amendment, reads as follows:
By virtue of the language of the amendment, it is submitted by defendant that Act 153 of 1952, merely confers jurisdiction to entertain the suit and does not mean that the State's immunity from liability for the torts of its agents is waived. With this contention and position of the State we are unable to agree. The constitutional provision clearly authorized the statute as enacted and the statute not only waived the State's immunity against suit against it but also its immunity from suit for the negligence of its agents and employees and its immunity from liability for such torts. A construction of the statute as contended for by the State would render the statute a nullity, meaningless, and without any force or effect. If the statute merely permitted plaintiff to physically file a suit in the district court and nothing more, then it did nothing and no purpose was served or accomplished, as she, without authority of the statute, could have done as much. Should she have filed this suit without the statute, the State could and, no doubt, would have filed the same exception, based on its non-liability for the tortious acts of its agents and employees. Such exception would have been meritorious and, no doubt, would have been sustained. The State is contending as much now even in the face of the statute authorizing the suit.
Plainly, it was the intention of the Legislature by its adoption of the statute to waive the State's immunity against the suit in its entirety and to place its defense on the same plane as an ordinary defendant, in the absence of an express reservation to the contrary. The statute, necessarily, was a waiver of the State's immunity as a sovereign in its entirety and does not reserve the right to rely upon its exemption from liability for damages by reason of the negligence of its agents and employees in...
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...for any injury to person or property while performing or attempting to perform any duty required of him by this Part." Marler v. State, 78 So.2d 26, 35 (La.App.1955). The Marler court held This section absolves members of the National Guard from liability for their acts when they have been ......
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