Varnado v. State

• Decision Date: 07 October 1931
• Docket Number: 871
• Citation: 136 So. 771,18 La.App. 624
• Court: Court of Appeal of Louisiana — District of US
• Parties: VARNADO v. STATE ET AL

136 So. 771

18 La.App. 624

VARNADO v. STATE ET AL

No. 871

Court of Appeals of Louisiana, First Circuit

October 7, 1931

Rehearing Refused December 8, 1931.

Writ of Certiorari and Review Refused by Supreme Court February 1 1932.

Appeal from the Twenty-second Judicial District Court, Parish of Washington. Hon. C. Ellis Ott, Judge.

Action by Ronnie L. Varnado against State of Louisiana et al.

There was judgment for plaintiff and defendants appealed.

Judgment affirmed.

Carter & Carter, of Franklinton, attorneys for plaintiff, appellee.

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

OPINION

ELLIOTT, J.

Ronnie L. Varnado claims of the Louisiana Highway Commission the sum of $ 21,418 on account of personal injuries received by him as the result of an explosion of a lot of dynamite caps.

He alleges that the caps were placed in a box in his store used for holding waste paper, by the agents of an employee of Louisiana Highway Commission. That said agents and employees were at the time performing duties incidental to their service. That said caps were placed in his store without his knowledge or consent. That not being aware that the box contained dynamite caps, he emptied it on the ground in the back yard of his store and set fire to the paper; upon which the caps exploded, seriously injuring his arm and body and destroying his left eye.

He alleges great pain and suffering for many months; heavy expense on account of medical treatment, for hiring work done that he would have otherwise done himself, loss of time, and trips to get necessary treatment and permanent loss of his eye, all as a result of said explosion.

The suit was brought pursuant to authority and consent given by Act 25 of 1930 of the legislature of this state. A copy of the act is annexed to and made part of his petition.

The state and Louisiana Highway Commission excepted to the suit on the ground that plaintiff's petition disclosed no cause or right of action.

The plaintiff filed an amended petition alleging that the Louisiana Highway Commission was engaged at the time in building a highway in Washington parish, and that the act of which he complained had been done by its agents and employees in the performance of the work and duties of their employment. The court, assigning reasons in writing, overruled the exceptions.

An exception of vagueness, filed by defendant, not acted on by the lower court, we look on as having been abandoned.

Louisiana Highway Commission filed an answer. The answer admits that plaintiff was authorized by the legislature to institute the suit, but all the other averments in the petition are denied.

The trial resulted in a judgment in favor of the plaintiff for $ 5,658 with interest. Louisiana Highway Commission has appealed.

Louisiana Highway Commission urges, under its exceptions of no right or cause of action, that under the Constitution and laws of the state, it is an integral part of the state government, and as such is as exempt as the state itself from liability to repair damage to a person for injuries caused by negligent acts and faults committed ex delicto by its agents and employees in the construction of highways for the state.

The Constitution, art. 3, sec. 35, 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."

The Act 25 of 1930 provides:

"Be it enacted by the Legislature of Louisiana, That suit against the State of Louisiana through the Louisiana Highway Commission is hereby authorized to be filed by Ronnie L. Varnado, a citizen and resident of the Parish of Washington, State of Louisiana, upon his claim for damage resulting from accident and personal injury alleged to have occurred on May 24, 1929, by the negligence of persons in the employment of the Louisiana Highway Commission."

The Constitution of 1921, art. 6, sec. 19 et seq., provided for the creation of the Louisiana Highway Commission.

Act 95 of 1921 created the Louisiana Highway Commission, pursuant to the constitutional mandate, invested it with the power and duty to build, construct, repair, and maintain highways. Section 3 provides:

"The Commission shall be a body corporate and as such may sue and be sued, plead and be impleaded, in any Court of Justice."

This provision, that the commission "may be sued and impleaded in any court of justice," was considered in the case of Kilberg v. Louisiana Highway Commission, 8 La.App. 441. That suit was based on an alleged act ex delicto, on the part of the agents and employees of the Louisiana Highway Commission, in the work of constructing a highway. The state intervened in the suit and filed an exception of no cause of action. This court, affirming the judgment appealed from, held that the petition set forth no cause of action. We copy from the opinion as follows:

"The statute is silent as to the nature of the causes of action upon which the Commission may sue or be sued. The quoted clause in the Act must be read in connection with the fundamental constitutional principle that the State may only be sued with its permission * * *, and where a State agency is acting within the scope of its governmental functions, it represents the State and as such, it may not be sued except with the permission of the State.

"It is evident from other provisions in the Act that the clause subjecting the Commission to the liability to be sued does not confer upon a complainant a right of action whereby the Commission would be eventually deprived and dispossessed of the fund which is necessary for it to exercise its governmental functions and which is dedicated by the Constitution to that special purpose. To so hold would be to recognize that the usefulness of the Commission can be destroyed and the...