Preuett v. State Through Dept. of Highways

• Decision Date: 07 January 1953
• Docket Number: No. 7852,7852
• Citation: 62 So.2d 686
• Parties: PREUETT v. STATE through DEPARTMENT OF HIGHWAYS et al.
• Court: Court of Appeal of Louisiana — District of US

Page 686

62 So.2d 686

PREUETT v. STATE through DEPARTMENT OF HIGHWAYS et al.

No. 7852.

Court of Appeal of Louisiana, Second Circuit.

Jan. 7, 1953.

Rehearing Denied Jan. 30, 1953.

Lemuel C. Parker, W. Crosby Pegues, Jr., D. Ross Banister, Philip K. Jones and Joseph A. Loret, Baton Rouge, for appellant.

Moss & Wright, Winnfield, W. T. McCain, Colfax, for appellee.

HARDY, Judge.

This is a suit for personal injuries in which the defendants are named as being the State of Louisiana, through the Department of Highways of the State of Louisiana, and the Department of Highways of the State of Louisiana. After trial there was judgment in favor of plaintiff and against the defendant, The State of Louisiana through the Department of Highways of the State of Louisiana, in the principal sum of $35,000, interest and costs. From this judgment the named defendant has appealed. Plaintiff has answered the appeal, seeking the amendment of the judgment by increasing the amount thereof to the sum of $50,000, as originally prayed.

This is a companion suit to one against the same defendants in which the plaintiff is Henry A. Preuett, husband of the plaintiff in this cause, in which the said named husband sued for reimbursement of expenditures necessitated by the injury to his wife, for future medical expenses and other items. The cases were consolidated for trial and for purposes of submission on appeal. La.App., 62 So.2d 693.

Plaintiff brought this suit under the authority of House Bill No. 145, which was passed by the Legislature of the State of Louisiana at the session of 1950, and subsequently vetoed by the Governor of the State of Louisiana. The validity of the authorization for suit has been attacked by counsel for defendant in numerous exceptions, namely an exception to the jurisdiction of the court ratione personae, an exception to the jurisdiction of the court ratione materiae, an exception of immunity from suit, and an exception of no right nor cause of action, all of which were overruled by the district court, but all of which are strenuously re-urged on appeal.

Plaintiff's action arises from an accident which occurred about the hour of 7:00 A.M. on June 21, 1948, on Louisiana Highway No. 19 at a point approximately twelve miles east of Colfax. At the time plaintiff was a passenger in a 1 1/2 ton 1937 model Chevrolet flat-bed truck owned and driven by her husband, Henry A. Preuett. The husband, a farmer by occupation, was engaged in transporting a truckload of cantaloupes to market and was driving in an easterly direction on Highway 19 toward the town of Bentley, in Grant Parish, Louisiana.

The accident occurred on a bridge, the approaches to which structure at either end were curves. The road is a gravel highway and it was established that, on Friday preceding the Monday on which the accident occurred, a road crew, under the direction of an employee of the State Department of Highways, whose capacity was that of a unit foreman, had covered the bridge with what was described as being a mixture of sand, clay and gravel. The flooring of the bridge, according to the testimony, was constructed of creosoted timbers which were old and in bad condition, hence the necessity for the protective covering of gravel. There were large cracks between the flooring timbers, and the employee in charge testified that he was convinced at the time, due to the exceedingly dry weather, the gravel mixture would sift down between the cracks of the bridge flooring and leave an extremely rough corrugated condition on the surface of the bridge. This is what actually occurred, and, over the week-end, traffic across the bridge had brought about this condition to such a degree that, at the time of the accident early Monday morning, the road across the bridge consisted of a consecutive series of hills and hollows, the depressions being some four to six inches in depth.

Henry A. Preuett, driving his truck along the highway, rounded the curve at the western approach of the bridge and, upon striking the corrugations described, the steering wheel of the vehicle was momentarily wrenched from his control and both he and his wife were violently thrown from the seat of the truck cab against the doors, which flew open and precipitated plaintiff wife to the highway. Mrs. Preuett's foot was caught in the door of the cab and she was dragged some distance until her foot became dislodged. Thereupon she fell entirely to the surface of the roadway and the right rear wheel of the truck passed over the upper torso of her body. Her husband meantime had gained a measure of control of the vehicle but realized the danger of applying the brakes and was helpless to avoid running over the body of his wife. He brought the truck to a stop on the shoulder of the road past the eastern end of the bridge. Plaintiff suffered injuries of an unusually serious nature, which will be hereinafter more particularly described.

In her petition plaintiff alleges, as grounds for recovery against defendants, that the employees of the highway department knew, or should have known, that the covering used for surfacing the bridge would become rough, corrugated and unsafe for traffic; that her injuries were caused solely by the negligence, carelessness and want of skill of the department's employees acting in the scope of their employment. Plaintiff itemized her claims for damages in the total sum of $50,000 as being:

'1. Past pain and suffering $15,000.00

2. Pain and suffering to be undergone in the future 25,000.00

3. Loss of her ability to maintain and care for her own household 10,000.00'

Little conflict of testimony was developed on trial. Plaintiff presented her case with reference to the facts of the accident through the testimony of some ten or twelve witnesses. No evidence was tendered on behalf of defendants, who relied upon the establishment of factual defenses through cross-examination of plaintiff's witnesses.

Other facts having some material bearing upon the issue of negligence as established on trial were to the effect that the bridge surface had been uniformly smooth and uncovered prior to the action of the highway employees in placing the gravel covering over the flooring of the bridge on Friday, June 18th; that after receiving information concerning the accident on Monday, June 21st, the employees of the Highway Commission immediately removed the gravel which remained upon the bridge flooring; that the surface of the highway approaching the bridge was smooth and in good condition; that the rough and dangerous condition existing on the bridge was not apparent to approaching motorists; that the highway at this point was subjected to reasonably heavy traffic; that a number of other motorists experienced the rough and dangerous condition existing, some of them being severely jolted from their seats, the force of the impact being such as caused vehicles to swerve from one side to the other of the highway; that in one or two instances motorists who had come in contact with the rough and dangerous condition made return trips by circuitous routes in order to avoid subjecting themselves to the danger for a second time; that no inspection was made by employees of the highway department following the covering operation until after a report of the accident; that no caution nor warning signs were displayed.

On appeal before this court industrious counsel for defendant has assigned thirty separate specifications of error with respect to the judgment of the district court. Careful examination of these assignments indicates that they are repetitious, and, in the final analysis, may be reduced to three essentials; namely, reliance upon the State's immunity from suit; freedom from actionable negligence on the part of the highway department, its agents and employees, and the assertion of contributory negligence on the part of the driver of the Preuett truck. We further reduce the points at issue by observing that the plea of contributory negligence has not been urged before this court and we consider the same to be abandoned and properly so since in our opinion no facts were established which would sustain such a charge.

Counsel for defendant submits that the question of immunity from suit has been properly raised by one or more of the exceptions. We can perceive no useful purpose to be served in discussing the merit of the arguments advanced with respect to the technical propriety of the various exceptions in tendering the issue of immunity. It suffices for our purpose that we willingly concede that the issue has been presented and is correctly before the court.

The burden of defendant's argument is that the immunity from suit which is an attribute of sovereignty inherently possessed by the State of Louisiana has not been constitutionally waived by the passage of House Bill No. 145 of 1950 upon which plaintiff relies. The facts bearing upon this point are undisputed, namely that the bill was passed by both the House and the Senate of the Legislature of the State of Louisiana, submitted to the Governor and by him vetoed. It is urged that notwithstanding the fact that the right of waiver of immunity is vested in the Legislature, nonetheless when a legislative directive is submitted to and vetoed by the chief executive such action has the effect of avoiding such an expression of the legislative will.

We do not think this position is tenable. Authorization for suits against the State is specifically provided by Section 35 of Article 3 of the Constitution of 1921, as amended. After covering the requirments with reference to citation, designation of courts in which suit may be filed, waiver of prescription, procedure, etc., the section specifically declares:

'Except as otherwise specially provided in this section, the effect of any authorization by the Legislature for a suit against the State shall be nothing more than a waiver of the State's immunity from suit insofar as the suit...