Miller v. Board of Com'rs of Port of New Orleans, 36248.

• Court: Supreme Court of Louisiana
• Citation: 199 La. 1071,7 So.2d 355
• Docket Number: 36248.
• Decision Date: 02 March 1942
• Parties: MILLER (ROYAL INDEMNITY CO., Intervenor v. BOARD OF COM'RS OF PORT OF NEW ORLEANS.

7 So.2d 355

199 La. 1071

MILLER (ROYAL INDEMNITY CO., Intervenor
v.
BOARD OF COM'RS OF PORT OF NEW ORLEANS.

No. 36248.

Supreme Court of Louisiana

March 2, 1942

Rehearing Denied March 30, 1942. [7 So.2d 356]

[199 La. 1072] James W. Hopkins and Adam H. Harper, both of New Orleans, for applicant.

Eldon S. Lazarus, of New Orleans, for respondents.

Eugene Stanley, Atty. Gen., and Bertrand I. Cahn, Sp. Asst. Atty. Gen., amici curiae.

James Wilkinson, of New Orleans, amicus curiae.

PONDER, Justice.

Plaintiff, Mrs. Leontine Ecuyer Miller, the widow of William R. Miller, seeks to recover [199 La. 1073] from the defendant, Board of Commissioners of the Port of New Orleans, $10,000 as damages for the injury and death of her deceased husband, William R. Miller, caused by alleged vices and defects of the premises of the defendant.

It is alleged in the plaintiff's petition that William R. Miller, the deceased, was an employee of the Waterman Steamship Corporation; that the Waterman Steamship Corporation leased from the defendant a portion of certain docks, wharves and sheds of the Orange and Robin Street Wharves, located along the Mississippi River, in the City of New Orleans; that the deceased, while engaged in the scope of his employment as watchman of the leased premises and while attempting to lower one of the steel sliding doors at the entrance to Shed No. 33 of the Orange St. Wharf was struck on the head by the door when the cradle or bracket supporting the door's rollers broke, thereby causing the door to fall on the deceased, resulting in injury and his death; that the defendant, as lessor, is liable to the employees of its lessee, the Waterman Steamship Corporation, for the damages occasioned by the vices and defects of the leased premises.

The Royal Indemnity Company, insurance carrier of the Waterman Steamship Corporation, filed an intervention wherein it is alleged that Miller's death was caused by the engligence of the defendant; that the intervenor has paid to the plaintiff $2,262 as workmen's compensation for the account of its insured; that in accordance with the Workmen's Compensation Law, Act No. 20 of 1914, the intervenor is subrogated to the [199 La. 1074] rights and actions of the Waterman Steamship Corporation against the defendant; and that the intervenor is entitled to recover from the defendant the amount it has paid plaintiff out of any judgment which might be rendered in plaintiff's favor against the defendant.

The defendant interposed exceptions of no cause of action to the plaintiff's petition and to the intervention. The trial court maintained the exceptions and dismissed the plaintiff's suit as well as the intervention. The judgment was affirmed by the Court of Appeal for the Parish of Orleans. The case is now before us on a writ of review.

The exceptions of no cause of action are based on the ground that the defendant is an agency of the State and cannot be sued without the prmission of the State, which permission the defendant contends has not been granted.

The Board of Commissioners of the Port of New Orleans, hereinafter referred to as the Dock Board, is an agency of the State, performing purely administrative functions. State ex rel. Tallant v. Board of Commissioners of Port of New Orleans, 161 La. 361, 108 So. 770. This view is fortified by the fact that the State provides funds for the operation of the Dock Board. Article VI-A, Sec. 5, of the Constitution of 1921, as amended, provides that 9/20's of the 1� gasoline tax shall be dedicated to the Dock Board. This view is further fortified by the additional fact that the members of the Dock Board and their successors are appointed by the Governor of the State.

It is provided in Article VI, Sec. 16, Par. 1, of the Constitution of 1921 that the Dock [199 La. 1075] Board shall exercise the powers conferred [7 So.2d 357] upon it by the Constitution and such other authority as may be conferred by the legislature. From an examination of the Constitution and the Acts of the legislature dealing with the Dock Board, it is apparent that the right to sue the Dock Board in tort has not been granted.

It is true that Act 70 of 1896 and its subsequent amendments, Act 36 of 1900 and Act 14 of 1915, provide that the Dock Board shall have and enjoy the rights, powers, and immunities incident to corporations. This provision contained in Act 70 and the subsequent amendments has been discussed on two occasions by this Court, and the conclusion was reached that the Dock Board was not a corporation but a mere state agency. Duffy v. City of New Orleans, 49 La.Ann. 114, ...