Orgeron v. Louisiana Power & Light Co.

• Decision Date: 07 March 1932
• Docket Number: 14,090
• Citation: 19 La.App. 628,140 So. 282
• Parties: ORGERON ET UX. v. LOUISIANA POWER & LIGHT CO. ET AL
• Court: Court of Appeal of Louisiana — District of US

140 So. 282

19 La.App. 628

ORGERON ET UX. v. LOUISIANA POWER & LIGHT CO. ET AL

No. 14,090

Court of Appeals of Louisiana, Orleans

March 7, 1932

Rehearing Refused April 4, 1932.

Writs of Certiorari and Review Refused by Supreme Court May 23 1932.

Appeal from the Civil District Court, Parish of Orleans, Division "A". Hon. Hugh C. Cage, Judge.

Action by Robert Orgeron and wife against the Louisiana Power &amp Light Company et al.

There was judgment for defendants, and plaintiffs appealed.

Judgment affirmed.

Oliver S. Livaudais, of New Orleans, attorney for plaintiffs appellants.

L. L. Morgan and A. S. Cain, Jr., of New Orleans, and D. M. Ellison, of Baton Rouge, attorneys for appellee Louisiana Highway Commission.

JANVIER J. HIGGINS, J., absent, takes no part.

OPINION

JANVIER, J.

This matter comes to us on appeal from a judgment of the civil district court dismissing, on exception of no cause of action, a suit for damages for alleged unlawful death brought against various defendants, including the exceptor, Louisiana Highway Commission.

The sole question now before us is whether such commission, an agency or department of the state, may be sued for damages ex delicto.

Plaintiffs, Mr. and Mrs. Robert Orgeron, bring the action against Louisiana Power & Light Company, George Hoffman, Louisiana Highway Commission, and R. A. Cole. It is alleged that Leopold Orgeron, the minor son of plaintiffs, was killed as the result of an automobile accident, which, it is averred, resulted from the joint negligence of the two individual defendants, each driving a motor vehicle, one within the scope of his employment as a servant of Louisiana Power & Light Company and the other within the scope of his employment by Louisiana Highway Commission.

The district judge dismissed the suit as against Louisiana Highway Commission, being of the opinion that the jurisprudence of the state of Louisiana, based on the written law of the state, makes it impossible to entertain a suit sounding in damages against the state, or any of its boards or departments. He strongly expressed the view, however, that, when such "agencies are created and performing the functions, which may perhaps be governmental in nature, and doing other works, * * * when carrying on these works through their agents, who are liable to commit torts and injure citizens * * * there should be absolute permission given to citizens to bring suits against those agencies, to recover for damages they sustain and have such compensation paid out of the fund in the same way that railroad companies or street car corporations doing public service, monopolistic by nature, and to have revenue sufficient to carry on all the operations of the corporation and sufficient also to pay the damages which are inflicted by the torts of its agents." He further stated, referring to the great works of various character now performed by states and state agencies, that "these great works can no more be carried on without torts and injuries committed by the state than they could by private corporations, or public service corporations."

The interesting opinion written on the subject by our brother below and the most persuasive argument presented by industrious counsel for plaintiffs have led us to delve rather deeply into the doctrine of immunity of the state from liability for damages, and we find that, from the earliest times, the doctrine has been in existence in this country, and that this was recognized by Mr. Justice Miller, in the very early case of Gibbons v. United States, 75 U.S. 269, 8 Wall. 269, 274, 19 L.Ed. 453, in which it was declared that:

"No government has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents."

While it is very evident that Mr. Justice Miller either did not intend to include in his reference the countries of Western Europe, or had overlooked the fact that those countries had, from very early times, admitted such liability, nevertheless there can be no doubt that, as to the English speaking countries, England and America, the doctrine of the immunity of the sovereign to assaults in the courts is universally accepted; that "the king can do no wrong" has, as a necessary corollary, "the sovereign may not be forced to submit to suit." Originally the royal prerogative was purely personal, and it was therefore, from the beginning, illogical to apply it to the United States, where the sovereignty, if the governing authority may be so called, is so broadly distributed among the various governmental officials and departments and is, in fact, in theory at least, still with the people themselves.

"* * * In our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts." Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220.

But, even if on a sound foundation, when originally applied to the sovereign of old, it is more than doubtful if there is any semblance of reasonableness in applying it to the "sovereign," as the term is used in the United States today, for, while originally the sovereign concerned himself solely with purely governmental functions, today we find our governments, state and national, undertaking to perform works of every nature heretofore considered as being exclusively within the prerogative of the private individual or corporation and never conceived of as being within the rights or duties of a sovereign. Let it not be believed that we intend to criticize the modern trend. Whether it be socialistic, or whether it be for the good, or work to the detriment, of the people as a whole, we find it unnecessary to consider. It is sufficient that we recognize that the tendency exists, and that we express the view that, because of it, it would be well to consider whether we should "remain bound by the fetters of a mediaeval doctrine, often regarded as having the institutional impregnability of an article of faith, which never had much, if any, justification." Borchard, "Government Liability in Tort," Yale Law Journal, vol. 34, p. 3.

If our governments are to engage in corporate business, if the state is to undertake the construction of bathing beaches and amusement parks, if it is to own and operate in its highway work hundreds of trucks, is it still within the bounds of reason to say that, in doing those works, it can do no wrong, and that it is therefore immune to litigation sounding in tort?

The question is an economic one. Should for instance, a flagrant, wrongful violation by an employee of a state agency of the rights of an individual require that the whole loss be borne by that individual, who is himself without fault, or should the burden of the loss be distributed among the whole citizenship?

The state of Louisiana has, in enacting compensation laws, recognized that industrial accidents must occur, and it has adopted the policy that the loss which results from such inevitable accidents shall not be placed at the doors of the unfortunate individuals concerned, but must, through natural channels brought into play by the compensation laws, be distributed among the consumers, or, in other words, be charged back to the general public.

By reason of the application of the doctrine that the state is immune to tort actions, may incongruous results obtain. If the heads of the highway department have in mind the paving of two similar sections of road, and they decide that the department itself will pave one, but will let the other one out on contract to an independent contractor, and if, while the two jobs are in progress, A is killed by a highway truck and B is killed by a truck of the independent contractor, under conditions showing negligence on the part of the drivers, B's representatives may recover, but the members of A's family are told that, since the state may not be sued, they must stand the loss themselves. Another incongruous situation presents itself when we consider that, if the highway department, in building roads, finds it necessary to send its trucks upon the farm of a nearby property owner and take his earth to build an embankment, it may be held liable for the value of the earth, Booth v. Louisiana Highway Commission, 171 La. 1096, 133 So. 169, but that if, in removing the earth, through the sole carelessness of a driver of one of the highway trucks, the landowner himself should be injured, or killed, no redress for his injuries or death could be had, because "the state can do no wrong."

The Supreme Court had no difficulty, under the written law, in announcing in the Booth case the doctrine stated--that the highway commission may be forced to pay for earth removed from the property of a nearby landowner, but, as the law presently exists, it seems that it would be impossible to render judgment in favor of the injured party should the hypothetical accident, which we have above described, actually occur. But the wisdom of economic policy is not for judicial consideration, and we feel that we are not privileged, and we know that we are not anxious, through the medium of judicial interpretation, to impose our views upon the people of the state.

The question which now confronts us was squarely presented to the Court of Appeal of the First Circuit in Kilberg v. Louisiana Highway Commission, 8 La.App. 441, and there our brothers of the other circuit, in holding that the Louisiana Highway Commission may not be held liable in tort, said:

"* * * No fault of an agent of the government can give cause for damages against the government when such agent is acting within the scope of his governmental powers."

Counsel for plaintiffs is...