Opinion
No. 9784.
October 26, 1962.
Action against city for personal injuries and community expenses incurred as result of an automobile collision. The First Judicial District Court, Parish of Caddo, Henry F. Turner, J., dismissed the action, and the plaintiffs appealed. The Court of Appeal, Bolin, J., held that ruling sustaining city's exception of no right or cause of action predicated on city's allegation that it was immune from liability due to governmental nature of duties being performed by its employee would be set aside when a valid act of Legislature was passed while appeal was pending waiving any governmental immunity the city had.
Reversed and remanded.
Smallenberger, Eatman Tooke, Shreveport, for appellants.
J.N. Marcantel, Loret J. Ross and J. Bennett Johnston, Jr., Shreveport, for appellee.
Before HARDY, GLADNEY and BOLIN, JJ.
Plaintiffs, husband and wife, instituted this action for personal injuries and certain community expenses incurred as a result of an automobile collision between a vehicle operated by Mr. Juneau and a 1960 Chevrolet automobile owned by the City of Shreveport and being driven by one of its employees. Plaintiffs alleged the accident was caused by the negligence of the City of Shreveport, its agents, employees and servants. During the proceedings below plaintiffs' petition was met by an exception of no right or cause of action filed on behalf of the City of Shreveport predicated on its allegation that defendant was immune from liability due to the governmental nature of the duties being performed by its employee in the course and scope of his employment. The lower court sustained the exception resulting in the dismissal of plaintiffs' suit, from which ruling they appealed.
Subsequent to the judgment of the lower court sustaining the exception, and while the case was pending on appeal, the State of Louisiana passed House Concurrent Resolution No. 9 of 1962, which waived any governmental immunity defendant had relative to the accident, and further specifically authorized and granted plaintiffs the right to the continued prosecution of this litigation. Prior to the day fixed for oral argument, plaintiffs filed a motion before this court wherein they set forth the passage of said resolution and moved that the previous ruling of the lower court sustaining the exception be set aside; and that the cause be remanded to the district court for a trial on the merits. Defendant has not opposed such motion.
As the ruling appealed from was based solely on defendant's governmental immunity, which has been specifically removed by a valid act of the Louisiana Legislature, it follows the motion filed by appellants has merit.
It is, accordingly, ordered that the judgment of the lower court sustaining the exception of no right or cause of action is annulled and set aside and the case is remanded to the Honorable First Judicial District Court of Louisiana, in and for the Parish of Caddo, for further proceedings consistent with law and the views herein expressed.
Reversed and remanded.