text:
    STATE ex rel. Anthony STOOT v. STATE of Louisiana.
    No. 2006-KH-0811.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Stoot, Anthony;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 01-K-0072-D; to the Court of Appeal, Third Circuit, No. KH 05-01022.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Nolan C. TURNER, III v. STATE of Louisiana.
    No. 2006-KH-0818.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Turner, Nolan C. III;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 203,173; to the Court of Appeal, Second Circuit, No. 41016-KH.

Denied.


text:
    STATE ex rel. Leon WILLIAMS, Jr. v. STATE of Louisiana.
    No. 2006-KH-0833.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Williams, Leon Jr.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 00-2434; to the Court of Appeal, Fifth Circuit, No. 2005-KH-977.

Denied.


text:
    STATE ex rel. Charles LAMBERT v. STATE of Louisiana.
    No. 2006-KH-0854.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Lambert, Charles;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 390-583; to the Court of Appeal, Fourth Circuit, No. 2005-K-1337.

Denied.


text:
    STATE ex rel. Lionell DAVIS v. STATE of Louisiana.
    No. 2006-CI-0856.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Davis, Lionell;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. A, No. 0 none given; to the Court of Appeal, Third Circuit, No(s). KH 06-00079, KH 05-01465.

Denied. Relator must exhaust his administrative remedies before seeking judicial review in the 19th Judicial District Court in East Baton Rouge Parish.


text:
    STATE ex rel. Thomas F. GILLESPIE Jr. v. STATE of Louisiana.
    No. 2006-KH-0861.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Gillespie, Thomas F. Jr.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. B, No. 50454; to the Court of Appeal, Third Circuit, No. KH 05-01244.

Denied.


text:
    STATE ex rel. Byron GEORGE v. STATE of Louisiana.
    No. 2006-KH-0863.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re George, Byron;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 99-7750; to the Court of Appeal, Fifth Circuit, No. 06-KH-7.

Denied.


text:
    STATE ex rel. Dan MITCHELL v. STATE of Louisiana.
    No. 2006-KH-0866.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Mitchell, Dan;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, No. 20,370; to the Court of Appeal, Second Circuit, No(s). 40914-KH, 39164-KH, 39016-KH.

Denied.


text:
    STATE of Louisiana v. Sean GROS.
    No. 2006-K-0902.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Gros, Sean;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. A, No. 407847; to the Court of Appeal, First Circuit, No. 2005 KA 1608.

Denied.


text:
    STATE of Louisiana v. Jack J. CUCCIA.
    No. 2006-K-0903.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Cuccia, Jack J.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 440-982; to the Court of Appeal, Fourth Circuit, No. 2005-KA-0807.

Denied.


text:
    STATE of Louisiana v. Hardy M. PARKERSON.
    No. 2006-OK-0906.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Parkerson, Hardy M.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 10077-OS; to the Court of Appeal, Third Circuit, No. KW 05-01388.

Denied.


text:
    STATE of Louisiana v. James BELT.
    No. 2006-K-0910.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Belt, James;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 407-467; to the Court of Appeal, Fourth Circuit, No. 2005-KA-1099.

Denied.

JOHNSON, J., would grant.


text:
    STATE of Louisiana v. Adam FRANK.
    No. 2006-KO-0915.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Frank, Adam;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. B, No. 03K0233B; to the Court of Appeal, Third Circuit, No. KA 05-773.

Denied.


text:
    STATE ex rel. Quntos WILSON v. STATE of Louisiana.
    No. 2006-KH-0918.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Wilson, Quntos;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 179,482; to the Court of Appeal, Second Circuit, No. 41017-KH.

Denied.


text:
    STATE ex rel. Mario MARSHALL v. STATE of Louisiana.
    No. 2006-KH-0919.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Marshall, Mario;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 00-6865; to the Court of Appeal, Fifth Circuit, No. 05-KH-976.

Denied.


text:
    STATE ex rel. Clarence JONES Jr. v. STATE of Louisiana.
    No. 2006-KH-0920.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Jones, Clarence Jr.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. B, No. 83-0584; to the Court of Appeal, Third Circuit, No. KH 05-01177.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Jimmie PUCKETT v. STATE of Louisiana.
    No. 2006-KH-0921.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Puckett, Jimmie;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 263-663.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    Burnell Leon COLEMAN v. Terry TERRELL, et al.
    No. 2006-CI-0922.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Coleman, Burnell Leon;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Allen, 33th Judicial District Court Div. B, No. 2003-506; to the Court of Appeal, Third Circuit, No. CW 05-01193.

Denied.

JOHNSON, J., would grant.


text:
    STATE of Louisiana v. Stanley J. STIRGUS.
    No. 2006-KO-0923.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Stirgus, Stanley J.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 01-4930; to the Court of Appeal, Fifth Circuit, No. 05-KA-0259.

Denied.


text:
    STATE of Louisiana v. Brandy JEFFERSON.
    No. 2006-KH-0940.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Brandy Jefferson;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 441-813; to the Court of Appeal, Fourth Circuit, No. 2004-KA-1960.

Denied.


text:
    STATE of Louisiana v. Raymond J. NAMIAS, Jr.
    No. 2006-K-0942.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Namias, Raymond J. Jr.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 371919; to the Court of Appeal, First Circuit, No. 2005 KW 2470.

Denied.


text:
    STATE of Louisiana v. Victor MCCLENDON.
    No. 2006-K-0945.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re McClendon, Victor;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, Nos. 8-02-510, 6-02-484; to the Court of Appeal, First Circuit, No. 2005 KA 0273.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Ricky BELL, Jr.
    No. 2006-K-0946.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Bell, Ricky Jr.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. A, No. 02-CR 000130; to the Court of Appeal, First Circuit, No. 2005 KA 1274.

Denied.


text:
    STATE ex rel. Larry SHARP v. STATE of Louisiana.
    No. 2006-KH-0953.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Sharp, Larry;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. D, No. 207,480; to the Court of Appeal, Second Circuit, No. 41,113-KH.

Denied.


text:
    STATE ex rel. Benjamin BENNETT v. STATE of Louisiana.
    No. 2006-KH-0954.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Bennett, Benjamin;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 196,141; to the Court of Appeal, First Circuit, No. 2005 KW 2400.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Michael HAYWOOD v. STATE of Louisiana.
    No. 2006-KH-0966.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Haywood, Michael;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 447-062; to the Court of Appeal, Fourth Circuit, No. 2004-KA-2097.

Denied.


text:
    Kevin PETERSON v. Terry GILDON, et al. Kevin Peterson v. Ray Hanson, et al.
    No. 2006-CI-1098.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Peterson, Kevin;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. A, Nos. 35981, 36226; to the Court of Appeal, Second Circuit, No(s). 40329-CW, 40,328-CW.

Denied.

WEIMER, J., recused.


text:
    WHITTEN FOUNDATION v. Brian WILSON, In His Capacity as Tax Assessor for East Baton Rouge Parish, Louisiana; The Louisiana Tax Commission; and Elmer Litchfield in His Capacity as Sheriff and Ex-Officio Tax Collector for East Baton Rouge Parish, Louisiana.
    No. 2006-C-1563.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Whitten Foundation;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 507,282; to the Court of Appeal, First Circuit, No. 2004 CA 2454.

Denied.

CALOGERO, C.J., would grant.

VICTORY, J., would grant.


text:
    WHITTEN FOUNDATION v. Brian WILSON, In His Capacity as Tax Assessor for East Baton Rouge Parish, Louisiana; The Louisiana Tax Commission; and Elmer Litchfield in His Capacity as Sheriff and Ex-Officio Tax Collector for East Baton Rouge Parish, Louisiana.
    No. 2006-C-1627.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Whitten Foundation;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 520,177; to the Court of Appeal, First Circuit, No. 2005 CA 1287.

Denied.

CALOGERO, C.J., would grant.

VICTORY, J., would grant.


text:
    Benny Ray BARNES, et ux. v. John L. BASS, et al.
    No. 2006-C-1689.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Barnes, Benny Ray; Barnes, Ora;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Lasalle, 28th Judicial District Court Div. 0, No. 32,709; to the Court of Appeal, Third Circuit, No. 06-80.

Denied.

JOHNSON, J., would grant.

KNOLL, J., would grant.


text:
    Harry LEE, Sheriff of the Parish of Jefferson v. Hon. Roy M. CASCIO and Hon. Stephen C. Grefer Harry Lee, Sheriff of the Parish of Jefferson v. Hon. George Giacobbe and Hon. Rebecca Olivier.
    No. 2006-CC-1791.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Lee, Harry, Sheriff Parish of Jefferson;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, Nos. 621,779, 621/780; to the Court of Appeal, Fifth Circuit, No. 06-C-330.

Denied.

TRAYLOR, J., would grant.

KNOLL, J., would grant.


text:
    Frank WILLIS v. Ryan MEILLEUR d/b/a Rapid Services, et al.
    No. 2006-CC-1804.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Rabalais Unland & Lorio L.L.P.; Louisiana Commerce and Trade Association Self Insurer’s Fund; Meilleur, Ryan d/b/a Rapid Services, et al.; National Loss Control Management Inc.; Lorio, Robert T.;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 614-617; to the Court of Appeal, Fifth Circuit, No. 06-C-384.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Christopher COUPE.
    No. 2006-KK-1805.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Coupe, Christopher;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, No. 3404; to the Court of Appeal, First Circuit, No. 2006 KW 0881.

Denied.


text:
    Gerard MENDONCA v. TIDEWATER INC.
    No. 2006-C-1808.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Mendonca, Gerard;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2002-04522; to the Court of Appeal, Fourth Circuit, No. 2005 CA 1166.

Denied.


text:
    Peter D. COLEMAN and Ralston P. Cole v. Devan PARDUE.
    No. 2006-C-1812.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Cole, Ralston P.; Coleman, Peter D. et al.;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. B, No. 100,891; to the Court of Appeal, First Circuit, No. 2005 CA 1071.

Denied.

CALOGERO, C.J., would grant.


text:
    Dr. James Earl MCCONNELL v. Louis M. DORSEY, et al.
    No. 2006-C-1814.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re McConnell, James Earl Dr.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jackson, 2nd Judicial District Court Div. B, No. 29,536; to the Court of Appeal, Second Circuit, No. 41,045-CA.

Denied.


text:
    B & G CRANE SERVICE, L.L.C. v. Shannon DUVIC, Bryan Vige and Turner Bros. Crane & Rigging, Inc.
    No. 2006-C-1820.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Turner Bros. Crane & Rigging Inc.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 526,939; to the Court of Appeal, First Circuit, No. 2005 CA 1798.

Denied.


text:
    PELTS & SKINS L.L.C. v. THE LOUISIANA DEPARTMENT OF WILDLIFE AND FISHERIES.
    No. 2006-C-1821.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Wildlife & Fisheries, Louisiana Department of; State of Louisiana;—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 523,294; to the Court of Appeal, First Circuit, No. 2005 CA 0952.

Denied.


text:
    STATE of Louisiana v. Mark SANDERS.
    No. 2006-KK-1823.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Sanders, Mark;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, Nos. 06-799 06-800; to the Court of Appeal, Fifth Circuit, No. 06-K-395.

Denied.

CALOGERO, C.J., recused.


text:
    Chad LEJEUNE and Dana Lejeune v. LAFAYETTE INSURANCE CO. and Donald Lejeune.
    No. 2006-OC-1825.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Lejeune, Chad et al.; Lejeune, Dana;—Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. E, No. 26,391; to the Court of Appeal, First Circuit, No. 2005 CA 2454.

Denied.


text:
    SOUTHSTAR INDUSTRIAL CONTRACTORS, L.L.C. v. ELLSWORTH, LEBLANC & ELLSWORTH, INC. and Employers Reinsurance Corporation.
    No. 2006-CC-1829.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Employers Reinsurance Corporation; Ellsworth, LeBlanc & Ellsworth, Inc.;—Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 140626; to the Court of Appeal, First Circuit, No. 2006 CW 0757.

Denied.


text:
    CHEHARDY, SHERMAN, ELLIS, BRESLIN & MURRAY, a Louisiana Partnership v. Dr. Nicholas FRANCO.
    No. 2006-C-1831.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Franco, Nicholas Dr.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2002-6600; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0935.

Denied.


text:
    STATE of Louisiana v. Mark A. JAYCOX.
    No. 2006-KK-1845.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Jaycox, Mark A.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. A, No. 05-4378; to the Court of Appeal, Fourth Circuit, No. 2006-K-0673.

Denied.


text:
    GULF RICE MILLING, INC. v. Richard SONNIER.
    No. 2006-C-1846.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Sonnier, Richard;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. C-206-04; to the Court of Appeal, Third Circuit, No. 05-1432.

Denied.


text:
    Sean EDWARDS v. FORD MOTOR COMPANY.
    No. 2006-C-1847.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Edwards, Sean;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. A, No. 37048; to the Court of Appeal, Third Circuit, No. CA 06-101.

Denied.


text:
    Lina BADER and Munir Bader, Individually and as Administrator of the Estates and as Natural Tutor of Amal Bader, Bader Bader, Dana Bader, and Eman Bader v. KANSAS CITY SOUTHERN RAILWAY COMPANY, City of Bossier City, State of Louisiana Through Department of Transportation and Development.
    No. 2006-C-1848.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Bader, Munir; Bader, Lina et al.;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. B, No. 101,393; to the Court of Appeal, Second Circuit, No. 41,081-CA.

Denied.


text:
    John ANDERSON v. ECKERD CORPORATION.
    No. 2006-C-1849.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Anderson, John;—Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 05, No. 01-06353; to the Court of Appeal, First Circuit, No. 2005 CA 1381.

Denied.


text:
    Connie HUNT v. TOWN OF NEW LLANO, LA, et al.
    No. 2006-C-1852.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Hunt, Connie;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. C, No. 72,248-C; to the Court of Appeal, Third Circuit, No. CA 05-1434.

Denied.


text:
    Rebecca COOK and Vernon Shively v. Cynthia Lynn KENDRICK and State Farm Fire & Casualty Company.
    No. 2006-C-1853.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Shively, Vernon; Cook, Rebecca et al.;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. K, No. 474,335; to the Court of Appeal, Second Circuit, No. 41,061-CA.

Denied.


text:
    Nidal HAMIDEH, Individually & on Behalf of His Minor Child, Hamidi “Hamideh” & the Estate of Hana Hamideh v. A & H CLOTHING, INC., Doing Business as Urban Sportswear, Inc., & Evanston Insurance Company.
    No. 2006-C-1854.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Hamideh, Nidal et al.; Hamideh, Hana Estate of;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 526198; to the Court of Appeal, First Circuit, No. 2005 CA 1654.

Denied.


text:
    GULF RICE MILLING, INC. v. Richard SONNIER.
    No. 2006-C-1855.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Gulf Rice Milling Inc.;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. C-206-04; to the Court of Appeal, Third Circuit, No. 05-1432.

Denied.

VICTORY, J., would grant.


text:
    Artreese PEOPLES v. BATON ROUGE POLICE DEPARTMENT.
    No. 2006-C-1857.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Peoples, Artreese;—Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 521,422; to the Court of Appeal, First Circuit, No. 2005 CA 1661.

Denied.


text:
    BONNETTE AUCTION COMPANY, LLC v. Khalid AZMI.
    No. 2006-C-1862.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Azmi, Khalid;—Defendant; Applying for Writ of Certiorari and/or Review Alexandria City Court, No. 100,059; to the Court of Appeal, Third Circuit, No. 05-1579.

Denied.


text:
    Mrs. Karen GRANGER and Mr. Milton Granger v. Dr. Carol RIDENOUR and Woman’s Hospital.
    No. 2006-CC-1865.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Woman’s Hospital;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 444,650; to the Court of Appeal, First Circuit, No(s). 2006 CW 0819, 2006 CW 0551.

Denied.


text:
    STATE of Louisiana v. Christopher ZAMAL.
    No. 2006-KK-1867.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Zamal, Christopher;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 460-291; to the Court of Appeal, Fourth Circuit, No. 2006-K-0482.

Denied.

CALOGERO, C.J., recused.


text:
    BEL OAKS BUILDERS, INC. v. John and Jennifer RICE.
    No. 2006-CC-1868.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Essex Insurance Company;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 2004-13634; to the Court of Appeal, First Circuit, No. 2006 CW 0735.

Denied.

TRAYLOR, J., would grant.


text:
    Francis THORNING and Kim Thorning v. The STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2006-C-1869.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re State of Louisiana et al.; Department of Transportation & Development;—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 610-247; to the Court of Appeal, Fifth Circuit, No. 2006-CA-0057.

Denied.


text:
    Patrick J. CUNNINGHAM, Anton N. Zanki and All Other Persons Similarly Situated v. INTERNATIONAL BUSINESS MACHINES CORP.
    No. 2006-CC-1870.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re International Business Machines Corp.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 421-453; to the Court of Appeal, First Circuit, No. 2006-CW 0661.

Denied.

VICTORY, J., would grant.


text:
    Robin LANDRY v. ST. MARY COMMUNITY ACTION COMMITTEE.
    No. 2006-CC-1875.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Landry, Robin;—Plaintiff; Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation District 09, No. 05-06462; to the Court of Appeal, First Circuit, No. 2006 CW 0579.

Denied.


text:
    Dawn MAGEE v. ABEK, INC.
    No. 2006-C-1876.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Magee, Dawn;—Plaintiff; Applying for Writ of Certiorari and/or Review Office of Worker’s Compensation Dist. 06, No. 03-01983; to the Court of Appeal, First Circuit, No. 2004 CA 2554.

Denied.


text:
    Adam LOTT v. Willie J. CRAIN; Troy Calvin Crain; Crain’s Mobile Home Towing, LLC; Safari Mobile Homes Manufacturing Inc., Canal Insurance Company; Everett J. Oliver, Firal L. Ryder, Dr. Isaac Appleton, and XYZ Insurance Company.
    No. 2006-C-1882.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Canal Insurance Company;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 509668; to the Court of Appeal, First Circuit, No. 2005 CA 1125.

Denied.


text:
    CYPRESS COVE MARINA, INC. v. Michael A. FRENETTE Also Know as Mike Frenette.
    No. 2006-C-1885.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Frenette, Michael A.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 49-818; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0513.

Denied.


text:
    Adam LOTT v. Willie J. CRAIN; Troy Calvin Crain; Crain’s Mobile Home Towing, LLC; Safari Mobile Homes Manufacturing Inc., Canal Insurance Company; Everett J. Oliver, Firal L. Ryder, Dr. Isaac Appleton, and XYZ Insurance Company.
    No. 2006-C-1890.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Crain, Willie J. et al; Crain, Troy Calvin; Crain’s Mobile Home Towing, LLC; Canal Insurance Company;—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 509,668; to the Court of Appeal, First Circuit, No. 2005 CA 1125.

Denied.


text:
    Taylor J. CHEVALIER v. ANPAC LOUISIANA INSURANCE COMPANY.
    No. 2006-CC-1892.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re ANPAC Louisiana Insurance Company;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 616-685; to the Court of Appeal, Fifth Circuit, No. 06-C-433.

Denied.


text:
    ANSON FLOWLINE EQUIPMENT, INC. v. HARVEY SPECIALTY & SUPPLY INC.
    No. 2006-CC-1895.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Anson Flowline Equipment Inc.;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. A, No. 51-929; to the Court of Appeal, Fourth Circuit, No. 2006-C-0557.

Denied.


text:
    Willard A. EASTIN, Jr., et al. v. ENTERGY CORPORATION, et al.
    No. 2006-CC-1896.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Entergy Corporation, et al.; Entergy Services, Inc.; Entergy Louisiana, Inc. f/k/a; Louisiana Power & Light Co.; Entergy Gulf States, Inc. f/k/a; Gulf States Utilities Co.;—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 456-981; to the Court of Appeal, Fifth Circuit, No. 06-C-391.

Denied.

VICTORY, J., would grant.


text:
    Hubert BATTLE v. PILGRIM’S PRIDE CORPORATION.
    No. 2006-C-1904.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Pilgrim’s Pride Corp.;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, Office of Worker’s Comp. Dist. 01 E, No. 04-03756; to the Court of Appeal, Second Circuit, No. 41,056-WCA.

Denied.

VICTORY, J., would grant.


text:
    Bobby Joe PERRY, et al. v. TOLEDO NURSING CENTER, INC., et al.
    No. 2006-C-1905.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Perry, Bobby Joe et al.; Perry, Henrietta;—Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Sabine, 11th Judicial District Court Div. A, No. 57,184; to the Court of Appeal, Third Circuit, No. 06-172.

Denied.


text:
    Arthur AMOS v. OUACHITA PARISH FIRE DEPARTMENT and the Ouachita Parish Police Jury.
    No. 2006-CC-1839.
    Supreme Court of Louisiana.
    Oct. 27, 2006.
   In re Ouachita Parish Fire Department et al.; Ouachita Parish Policy Jury;—Defendant(s); Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation District 1E, Nos. 03-08888, 05-06843,; to the Court of Appeal, Second Circuit, No(s). 41480-WCW, 41479-WCW.

Denied.

TRAYLOR, J., would grant.


author: PONDER, Justice.

text:
    232 La. 116
    Cecil Bates REEVES v. STATE of Louisiana through the Department of Highways.
    No. 42806.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    See also 228 La. 653, 83 So.2d 889.
    W. Crosby Pegues, Jr., Gen. Counsel, Louisiana Dept, of Highways, D. Ross Banister, Philip K. Jones, Glenn S. Darsey, Baton Rouge, for defendant, appellant, applicant.
    McIntosh, Hester & Gilfoil, Lake Providence, for plaintiff, appellee and respondent.
   PONDER, Justice.

We granted writs in this case limited to the question of whether or not the court of appeal erred in awarding interest on the judgment from judicial demand.

The plaintiff secured a judgment against the defendant for $20,457 with legal interest from date of judicial demand. See 80 So.2d 206. The judgment in this case resulted from the negligent acts of the employees of the defendant. The suit is admittedly an action in tort. Therefore, the question presented to us is whether or not the defendant, an agency of the state, can be condemned to pay interest on the judgment from judicial demand.

The defendant, relator herein, contends that governmental agencies are not liable for the payment of interest on judgments obtained against them unless provision is made therefor either by stipulation or by a specific statute. Relator takes the position that no stipulation was made for interest and that there is no specific statute authorizing it. Relator relies on the holdings in Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627; Makofsky v. Department of Highways, 205 La. 1029, 18 So.2d 605 and Jefferson Lake Sulphur Co., Inc., v. State, 213 La. 1, 34 So.2d 331.

We have examined the cases relied upon by the relator and find that this Court ruled that the State was not liable for interest on judgments resulting from breach of contract. Since the proceeding herein is an action in tort, the cited cases are not applicable.

The respondent contends that the relator is liable for legal interest from judicial demand on the judgment secured through an action in tort by virtue of the specific statute Act 206 of 1916, LSA-R.S. 13:4203, which provides:

“Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delic-to’, which may be rendered by any of the courts.”

Respondent also relies on the holdings in Hixson Funeral Home v. State, La.App., 33 So.2d 754; Guercio v. State, La.App., 15 So.2d 170; Lively v. State, La.App., 15 So.2d 617 and Ropollo v. State, La.App., 23 So.2d 374.

Act 41 of 1946 authorized the respondent to bring this action in tort but is silent on the question of interest. Under the provisions of Article 3, Section 35 of the Constitution, LSA as amended, suits authorized by the legislature against the state, except as regards citation and original jurisdiction, are to be governed by the same procedure required in suits between private individuals and the effect of this authorization is to be nothing more than a waiver of the state’s immunity from suit.

Act 206 of 1916, LSÁ-R.S. 13:4203, is a special statute and applies to all judgments sounding in damages ex delicto. It was pointed out in the case of Guercio v. State, supra, wherein interest was allowed from judicial demand in an action ex delicto, that the legislature was undoubtedly aware of the provisions of Act 206 of 1916 when it authorized the institution of the suit and intended that any judgment rendered in favor of the plaintiff would bear interest from judicial demand as required by that act. Interest in a tort action was also allowed against the state in Hixson Funeral Home v. State, supra; Lively v. State, supra, and Ropollo v. State, supra. Writs were applied for to this Court in all of these cases except the Hixson case, based on the contention that the court of appeal erred in condemning the State to pay interest on judgments sounding in tort and these applications were refused on the ground that the judgments were correct.

In refusing writs in the case of Ropollo v. State, supra, this Court stated:

“In the case of Guercio v. State, No. 37,393 and Lively v. State, No. 37,426, this Court refused to review the judgments of the Court of Appeal, First Circuit, holding that the State, through its Department of Highways, was liable for interest from judicial demand in a tort action under the provisions of Act 206 of 1916, on the ground there was no error of law in the judgments complained of. A further consideration of our rulings in those cases in connection with the application made by relator herein has convinced us of their correctness and we adhere thereto. The decisions in Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627, and Makofsky v. Department of Highways, 205 La. 1029, 18 So.2d 605 are not applicable to the question presented by relator’s application. Those cases involve actions ex contractu and not ex delicto. Writs refused.”

For the reasons assigned, the judgment of the Court of Appeal, Second Circuit, is affirmed. ; :


author: HAMLIN, Justice ad hoc.

text:
    232 La. 121
    STATE of Louisiana v. Paul PONTHIEAUX.
    No. 43274.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Bernard J. Fonseca, Byrnes & Wallace, New Orleans, for appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Geo. M. McCulloch, Jr., Edward K. Pinner, Louis Fenner Claiborne, Asst. Dist. Attys., New Orleans, for appellee. '
   HAMLIN, Justice ad hoc.

The chronology of the proceedings leading to this .appeal is as follows:

February 17, 1956 —Defendant was charged, by bill of information filed in the Juvenile Court for the Parish of Orleans, with unlawfully failing to provide for the support of his wife, Mrs. Anna L. Ponthieaux. LSA-R.S. 14:74.
February 27, 1956 —Defendant was arraigned and pleaded not guilty.
March 12, 1956 ' —Defendant was ordered to pay $18.00 a week for the support of his wife, who was pregnant; payments to be made through the Alimony Department of the Juvenile Court, commencing March 19, 1956.
March 18, 1956 —Cheryl Ann Ponthieaux was born to Mrs. Anna L. Ponthieaux, wife of the defendant.
March 19,1956 ■ — Plea to the jurisdiction of the Juvenile Court ratione materiae was filed by the defendant.
March 19,1956 . — Defendant filed suit in the Civil District Court for the Parish of Orleans to have his marriage to his wife, Mrs. Anna L. Ponthieaux, complainant, declared null.
April 17, 1956 —Action en desaveu, to have Cheryl A. Ponthieaux decreed not to be his child, was filed by the defendant, Paul J. Ponthieaux, in the Civil District Court for the Parish of Orleans.
July 25, 1956 . — State moved to amend the information, charging the defendant with unlawful failure to support his wife, to include failure to support his child, Cheryl Ann Ponthieaux, born March 18,1956.
July 27, 1956 . — Bill of information was amended.
July 27, 1956 • — Plea to the jurisdiction of the Juvenile Court for the Parish of Orleans was filed by the defendant.
August 1, 1956 —Juvenile Court for the Parish of Orleans overruled the plea to the jurisdiction.
August 2, 1956 . — Counsel for the defendant gave notice that he would apply to the Supreme Court for the State of Louisiana for writs.
August 20, 1956 —Writs were denied. “Relator’s remedy is by appeal.” Article 7, Section 96, Louisiana Constitution, LSA. State v. Smith, 209 La. 363, 24 So.2d 617; State v. Tanner, 224 La. 19, 68 So.2d 743.
September 13, 1956 — The defendant was cited for contempt of the Juvenile Court for the Parish of Orleans, for not having made any payment under the above order of March 12, 1956 for the obligation of alimony of $18.00 per week. He was found guilty and ordered to pay a fine of $400.00 or serve six months in the parish prison.
September 24, 1956 — Defendant was granted a suspensive appeal to the Supreme Court for the State of Louisiana. He was ordered-to furnish an- alimony bond in the sum of $500.00.

Five bills of exceptions, re'served to the rulings of the Judge of the Juvenile Court for the Parish of Orleans during defendant’s trial for contempt, are presented for our consideration. Learned counsel for the State of Louisiana argues that since this appeal does not involve the care, custody, or control of children under seventeen years of age, the appeal extends to questions of law alone. This contention is correct, because Article VII, Section 96, of the Louisiana Constitution of 1921 provides:

“Appeals shall lie to the Supreme Court of the State of Louisiana from all final judgments rendered by the Juvenile Court. An appeal shall lie on questions of law and of fact when the judgment of the court affects the custody, care or control of children under seventeen years of age, * * *. An appeal also shall lie on questions of law and of fact in adoption proceedings. In all other cases an appeal shall lie on questions of law alone.” See, State v. Tanner, 224 La. 374, 69 So.2d 505.

Bill of exception No. One was reserved to the ruling of the trial judge in permitting an amendment of the information to include, in the crime charged, unlawful failure to support his child. It is contended that the amendment constituted the charge of a new crime and was not an amendment in respect to any defect, imperfection, or omission in form or substance.

After an examination of the testimony attached to the bill, we find that the defendant was not prejudiced by the amendment. LSA-R.S. 15:253 permits amendment to an indictment or information as to substance where a defendant is not misled or prejudiced, provided he is fully protected in his rights.

LSA-R.S. 14:74 defines criminal neglect as the desertion or intentional non-support by a husband of his wife and by either parent of his child or children. In the instant case, the defendant was charged with the non-support of his wife before the child was born, and, by amendment, he was charged with the non-support of both after the child was born. The amendment was not the accusation of a new crime. It was no more than an alleged enlargement of the crime charged, and the defendant was given the right to file a plea to the jurisdiction. The testimony attached to the bill shows that defendant was aware of his wife’s condition, and it, likewise, proves that the child herein involved was born to the prosecuting witness, Mrs. Anna Ponthieaux.

We are of the opinion that Bill of Exception No. One is without merit.

Bills of Exceptions Nos. Two and Three will be discussed jointly. They were taken to the trial court’s overruling defendant’s pleas to its jurisdiction based on the grounds that he had filed a suit in the Civil District Court for the Parish of Orleans for the annullment of his marriage and had filed another suit in the same court to disavow the paternity of the child, Cheryl Ann Ponthieaux.

These two bills present for our determination the solution of the question of whether the pendency of civil actions instituted by the husband, after proceedings had been commenced in the Juvenile Court, affect the jurisdiction of the Juvenile Court.

Jurisdiction attached to the Juvenile Court for the Parish of Orleans on February 17, 1956, and judgment was rendered on March 12, 1956. Defendant’s actions were filed in the Civil District Court for the Parish of Orleans on March 19, 1956 and April 17, 1956. Although the Juvenile Court permitted amendment of the information to include the child, there was no change in the amount of the original order of March 12, 1956, and the instant matter is a contempt proceeding ■ for non-compliance with that order.

LSA-R.S. 13:1572 provides:

“ * * * When jurisdiction shall have been obtained by the court in a case pertaining to the support of a.wife by her husband, such jurisdiction shall continue unless and until a proceeding for separation from bed and board or for divorce shall have been instituted by either spouse.”

The jurisdiction of .the Juvenile Court, in cases of non-support of a wife by her husband, is only relinquished when a suit for separation from bed and board or for divorce is instituted by either spouse. Since alimony is an incident to such suits LSA-Civil Code, Articles 148 and 160, it follows that the court having jurisdiction of such matters should also have jurisdiction of support.

Alimony is not an incident to a suit to annul a marriage and is, therefore, not recoverable in such a proceeding. State v. Barilleau, 128 La. 1033, 55 So. 664; Monteleone v. O’Hanlon, 159 La. 796, 106 So. 308. Under these circumstances, a suit filed in the Civil District Court to annul a marriage would not ipso facto deprive the Juvenile Court of its preacquired jurisdiction. This Court has held that the pen-dency of an action to annul a marriage was no bar to a criminal prosecution for nonsupport of either wife or child. State v. Barilleau, 128 La. 1033, 55 So. 664; Succession of Barth, 178 La. 847, 152 So. 543, 91 A.L.R. 408.

Defendant’s suit to annul is based on the ground that a Mississippi Court, which granted the prosecuting witness a divorce from a prior marriage, did not have jurisdiction ratione personae. He has not proved his accusations, nor has he received a judgment in his favor. Under such conditions, we do not believe that the petition to annul the marriage could even be considered as evidence in the prosecution for non-, support. State v. Donzi, 133 La. 925, 63 So. 405.

The Juvenile Court for' the Parish of; Orleans had jurisdiction , of. the ¡proceedings under LSA-R.S.. 14:74. It maintained jurisdiction to punish for contempt of its order, despite the filing of the petition .to annul in the Civil District Court.

We are of the opinion that there is no merit to Bill of Exceptions No. Two.

“ * * * To hold otherwise would enable a recalcitrant husband to evade . his obligation to support his wife and children for an indefinite period of time. * *. * ” State v. Loyacano, 135 La. 945, 66 So. 307.

■The above reasoning also governs defendant’s plea to. the jurisdiction of the Juvenilé Court for the Parish of Orleans because of his action “en desaveu” filed in the Civil District Court for the Parish of Orleans. The minor, Cheryl Ann Ponth-ieaux, was born after the 180th day of the prosecuting witness’ marriage to defendant and is presumed to- be the child of the marriage.' LSA-Civil Code, Article 186.

Since the amendment to the information was made to include the minor and did not increase the monetary award, defendant had no right to complain that the Juvenile Court was without jurisdiction. The petition “en desaveu” filed in the Civil District Court could not be considered, since there was no proof offered in its support nor judgment rendered.

The case of State v. Hubbard, 228 La. 155, 81 So.2d 844, where the support of an illegitimate child was under consideration is not apposite. There the Court held that the establishment of paternity of an illegitimate child is a civil function with exclusive jurisdiction thereof vested in the Civil District Court, and that criminal responsibility cannot ensue under LSA-R.S. 14:74. unless a civil obligation has been previously imposed. In the instant case, we have under consideration the support of a child presumed to be legitímate. This is an .appeal from a judgment -finding defendant guilty of contempt of court for failure to comply with the judgment of the Juvenile Court awarding alimony on March 12, 1956. - .

We are of the opinion that there is no merit to Bill of Exceptions No. Three.

Bill of Exceptions No. Four was reserved when the trial judge overruled defendant’s motion for a new trial on the ground that under LSA-R.S. 14:74 specific intent was necessary for the crime of nonsupport, and that no such intent had been proved.

The trial judge was correct in refusing the defendant a new trial, because, under the statute itself, specific intent is presumed. Therefore, Bill of Exceptions No. Four is without merit.

Bill of Exceptions No. Five was taken to the overruling of defendant’s motion in arrest of judgment. Since this bill presents nothing new for our consideration, there is no merit to it.

For the reasons assigned, the conviction and sentence are affirmed.

FOURNET, C. J., absent.


text:
    232 La. 133
    In re PARKING SERVICE, Inc., Administration of Abandoned Automobiles. In re Parking Service, Incorporated, applying for Writ of Review or Certiorari to the Court of Appeal, Parish of Orleans, State of Louisiana.
    No. 43117.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rebearing Denied April 1, 1957.
    Clay, Coleman, Dutrey & Thomson, James J. Coleman, Louis J. Dutrey, Elwood R. Clay, New Orleans, for applicant.
    Philip P. Spencer, Gaspar R. Bossetta, John N. McKay, New Orleans, for respondents.
   PONDER, Justice.

We granted writs in this case in order to review the holding of the court of appeal that Articles 3224 to 3226, inclusive, of the LSA-Civil Code were not applicable under the facts in this case.

The two automobiles involve.d herein were a 1952 Ford and a 1954 Oldsmobile. They were seized by the- Federal Bureau .of Investigation and held as evidence upon the arrest of Richard Monroe Smith, who was charged with violation of the National 'Stolen Property Act, 18 U.S.C.A. § 2311 et seq. Smith was apprehended on May 16, 1954 and the two automobiles were stored with Parking Service, Inc. on that date by the FBI. Shortly thereafter, on the same date, assignments were executed by Smith in favor of A. G. Williams purporting to convey the cars to him. These assignments stated that the cars were in the custody of the FBI.

Williams made demand upon Parking Service, Inc. for delivery of the two automobiles to him but delivery was refused because Williams had no certificate of title and for the reason that they were being held by the FBI as evidence. On May 20, 1954, four days thereafter, a writ of attachment was issued in the Civil District Court for the Parish of Orleans at the instance of Mrs. Welch, whom Smith had swindled out of a large sum of money. By virtue of this writ, the cars were seized by the Civil Sheriff for the Parish of Orleans. They were released on February 10, 1955 to Mrs. Welch but remained in storage. No storage charges had been paid at that time. It appears that there was a compromise entered into between Williams and Mrs. Welch whereby Mrs. Welch relinquished any claim to the cars.

Thereafter, on March 23, 1955, Williams secured an order from the United States District Court releasing the cars to him but no mention was made of the charges. Williams made demand on Parking Service, Inc. for the release of the cars free of storage charges and their release was refused because of William’s refusal to pay the charges. On April 5, 1955 Williams took a rule on the FBI in the Federal Court to show cause why the cars should not be delivered by FBI free of any storage charges., This rule was denied by the judge of the Federal Court. ,

Parking Service, Inc. requested the Public Administrator for the Parish of Orleans to bring the present proceedings pursuant to the provisions of LSA-R.S. 32:524.

The Public Administrator’in the present proceedings petitioned the court for permission to advertise and sell the cars. Parking Service, Inc. intervened asserting a lien for $1,614.40 under Arts. 3224, 3225, and 3226 of the LSA-Civil Code and LSA-R.S. 32:521-32:524 and asked for attorney’s fees in the sum of $500. The court ordered the sale of the cars and on the date of the sale Williams filed a petition of intervention alleging that he was the owner under the assignments from Smith. The sale was enjoined and, after a hearing, the district court recognized Williams as the owner and recognized that there was due the Public Administrator the statutory amount of his commission and costs and further recognized Parking Service, Inc. as having a lien on the cars for storage charges in the amount of $635.96. Accordingly, the court ordered the sale of the cars at public auction by the Civil Sheriff for the Parish of Orleans, the Public Administrator to be paid first out of the proceeds, the lien of Parking Service, Inc. to be then satisfied and the balance to be paid to Williams after deducting all costs of court. From this judgment, Williams appealed except insofar as it recognized his ownership of the two vehicles. Parking Service, Inc. answered the appeal praying that the amount of its lien be increased to $1,614.40 plus whatever storage charges may accrue during the pendency of the suit. After hearing, the court of appeal affirmed that part of the judgment recognizing Williams as owner but amended the judgment so as to order delivery of the automobiles to Williams free and clear of any storage charges or liens and as thus amended the judgment was affirmed.

In the application for writs on behalf of Parking Service, Inq. filed in- this Court, it is contended that the court erred in holding th,af no lien existed in favor of-Parking Service, Inc. for. storage charges and that in effect the judgment of the court of appeal writes out the the provisions of Articles 3224, 3225 and 3226 and LSA-R.S. 32:521-32:524. Relator contends that it was error for the court of appeal to conclude that the contract made by the FBI with Parking Service, Inc. was similar to a contract made by an unauthorized person and that the provisions of LSA-R.S. 32:524 did not apply because the owner was not unknown.

The court of appeal erroneously concluded that Articles 3224, 3225 and 3226 did not apply to the case at bar. The cars in question were seized by the FBI, subsequently attached in a civil proceeding, and stored with Parking Service, Inc. We cannot agree with the court of appeal in its conclusion that there was no authority on the part of the FBI to store the cars taken by them as evidence at the expense of the owner and without his consent thereto. Moreover, the cars were seized by Mrs. Welch in a civil proceeding and released to her subject to the storage charges. Mrs. Welch relinquished her claim against the cars under a compromise with Williams. Under such circumstances, Williams would be liable for any storage charges. Moreover, Williams was unsuccessful in his effort to get a release of the cars free of storage charges in Federal Court.

It is provided in Articles 3224, 3225 and 3226 of the LSA-Civil Code as follows:

Article 3224. • “He who, having in his possession the property of another, whether in deposit or on loan or otherwise, has been obliged to incur any expense for its preservation, acquires on this property two species of rights.”
Article 3225. “Against the owner of the thing, his right is in the nature of that of pledge, by virtue of which he may retain the thing until the expenses, which he has incurred, are repaid.
“He possesses this qualified right' of pledge, even against the creditors of' the owner, if they seek to have the thing sold. He may refuse to restore it, unless they either refund his advance, or1 give him security that the thing shall fetch a sufficient price for - that purpose:”'-
Article 3226. “Finally, he who has incurred these expenses has a privilege against these same creditors, by virtue of which he has preference over them out of the price of the thing sold, for the amount of such necessary charges as he shall have incurred for its preservation. This is the privilege in question in the present paragraph.”

After a careful review of the evidence in this case, we have arrived at the conclusion that the district judge was correct in holding that the above quoted articles of the LSA-Civil Code and LSA-R.S. 32:521-32:524 are controlling of the issues herein presented.

For the reasons assigned, the judgment of the court of appeal is reversed and set aside. The judgment of the district court is reinstated and affirmed at appellant’s cost.


text:
    232 La. 140
    The MISSISSIPPI RIVER BRIDGE AUTHORITY, acting herein for and on behalf of the State of Louisiana, v. Mrs. Juanita Briede CURRY, Divorced Wife of William J. Curry, Sr.
    No. 42826.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rebearing Denied April 1, 1957.

      John W. Bryan, Jr., New Orleans, for plaintiff-appellant.
    John J. Blasi, William. J.. 'Curry, Jr., New Orleans, for defendant-appellee.
   PONDER, Justice.

The plaintiff brought suit to expropriate the property of the defendant, a four-plex located at Nos. 1144-46-48050 Camp Street. In answer to the suit, the defendant admitted the right of the plaintiff to expropriate the property and alleged that the true value of the property was $40,500. Upon trial, the lower court gave judgment awarding the defendant the sum of $35,000. The plaintiff has appealed and the defendant has answered the appeal asking for an increase of the award to $40,500.

The plaintiff-appellant contends that the lower court erred in basing its judgment on testimony relating to replacement value and value of commercial property when in fact the property involved herein was residential. Appellant takes the position that the only evidence the court could consider is a fair market value based solely on revenue without indulging in speculation.

The plaintiff offered the testimony of two witnesses, Max J. Derbes and E. Holland Johnson, both realtors in the City of New Orleans, who testified that the fair market value was $24,500, the basis of the price being the rental of the property for $203 a month. Mr Derbes testified that in duplexes, fourplexes, and double houses comparable sales show that the income approach is the most reliable approach for market value. He stated: “My appraisal is the market value of the property and in my opinion the market value of a four-apartment house is based solely on revenue.” Mr. Johnson’s testimony is to the same effect.

The witnesses for the defendant were Henry C. McCarthy, a construction engineer, engaged in general construction and real estate appraisal for banks and insurance companies, and two realtors, Cliff Probst and James C. Salvant.

Mr. McCarthy testified only as an appraiser of the value of the improvements and replacement value, and his tabulation took into consideration the quality of the lumber used, construction, and the fact that the house contained many marble mantlepieces. He valued the building alone at $33,000.

Mr. Probst testified that the building was under-rented and that rent is not the sole factor in determining market value but reproduction plays an important part in fixing the price. He testified that there were no comparable sales in that neighborhood similar to this particular property because, although it was used as residential property, it was classified as 'G commercial. He did give testimony on sales of commercial property in that vicinity. He stated that in his opinion the fair market value of the defendant’s property was $39,300.

Mr. Salvant testified that there were no comparable sales in the immediate vicinity because the other properties in close proximity were either commercial or commercial downstairs and residential upstairs and, therefore, the rental was not a controlling factor because in such mixed neighborhoods rental is exceptionally low. His figure for fair market value was $40,000.

There is no doubt that recent sales of comparable property are the best criteria of value in expropriation proceedings. See Caddo Parish School Board v. Willer, 227 La. 201, 78 So.2d 833; Greater Baton Rouge Port Commission v. Watson, 224 La. 136, 68 So.2d 901; City of New Orleans v. Noto, 217 La. 657, 47 So.2d 36; and Recreation and Park Commission of East Baton Rouge Parish v. Perkins, La., 93 So. 2d 198. However, the evidence relating to recent sales in the vicinity is of little value owing to the nature of this property.

Replacement cost is not the fair method of calculating the value of improved property. City of New Orleans v. Noto, 217 La. 657, 47 So.2d 36. The rental value of, or income from, property expropriated is not the measure of compensation but is material only insofar as it throws light on the market value of property. Louisiana Highway Commission v. Paciera, 205 La. 784, 18 So.2d 193; Housing Authority of New Orleans v. Persson, 203 La. 255, 13 So.2d 853. The market value of private property expropriated for public purposes is what a willing purchaser would pay a willing seller under ordinary circumstances.

The property in question is on a lot containing 6,404 square feet and the building is a frame building with asbestos siding, two stories high, containing 17 rooms and 4 baths with 4 hot water heaters and there is one garage and a storage shed. The evidence reflects that the building is in good condition. Appraisals range from $24,500 to $40,000 according to the testimony of the expert witnesses offered. Under the circumstances, we cannot say that the trial judge erred in setting a price of $35,000 as the amount to be paid the defendant herein.

For the reasons assigned, the judgment of the lower court is affirmed.


text:
    232 La. 145
    STATE of Louisiana v. Robert L. McCARTY.
    No. 43081.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rebearing Denied April 1, 1957.

      Joseph S. Guerriero, Monroe, for appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Albín P. Las-siter, Dist. Atty., Gilbert T. Brown, Jr., Asst. Dist. Atty., Monroe, for appellee.
   PONDER, Justice.

The defendant was convicted for the offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of Article 98 of the Criminal Code, now LSA-R.S. 14:98. He was sentenced to serve 125 days in the parish jail and to pay a fine of $500, in default of the payment of the fine, to serve six additional months in jail. He has appealed from the conviction and sentence, relying on a bill of exception taken to the overruling of a motion for a new trial based on the ground that there was no evidence to support the conviction and sentence.

The defendant contends that there was no evidence presented to the court that he had been drinking whisky. He admits that he was intoxicated but takes the position that his intoxication resulted from the consumption of beer and that, therefore, under the holding in the case of State v. Viator, 229 La. 882, 87 So.2d 115, the phrase “intoxicating liquor” as used in LSA-R.S. 14:98 does not include intoxication from the consumption of beer.

After reading the testimony taken on the trial of this case which is attached to the bill of exception, we find that it is not necessary for us to determine whether or not the case of State v. Viator has any bearing on this case for the reason that there is some evidence in the record that the defendant had been drinking whisky. He admitted to the arresting officers that he had been drinking whisky and a bottle of whisky fell from the person of his companion at the time he was arrested.

It is only where there is a total lack of evidence of the fact or facts required to prove the guilt of the party that this Court will set aside the conviction. See the recent case of State v. Harrell, La., 93 So.2d 684, and the authorities cited therein. Whether or not the evidence in any case is sufficient to support a conviction is a question of which this Court has no jurisdiction. State v. Martinez, 201 La. 949, 10 So.2d 712 and State v. Tucker, 204 La. 463, 15 So.2d 854. In other words, we cannot inquire into the sufficiency of the evidence. As long as there is some evidence supporting the charge, we are prevented from setting: aside the conviction and sentence.

For the reasons assigned, the conviction and sentence are affirmed.

SIMON, J., concurs in the decree.

HAWTHORNE, J., absent.


author: McCALEB, Justice.

text:
    232 La. 149
    Mrs. Lena B. Gandolfi BOURREE v. A. K. ROY, Inc.
    No. 42911.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rehearing Denied April 1, 1957.

      Sydney J. Parlongue, New Orleans, A. V.' Kling, Jr., Gonzales, Clarence Frost, Reserve, C. William Bradley, Norco, for defendant-appellant.
    Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, for plaintiff-ap-pellee.
   McCALEB, Justice.

This is a suit by the vendee of real estate situated in Jefferson Parish and bordering on Lake Pontchartrain, against her vendor to have the sale rescinded and for a return of the purchase price with costs and interest. The undisputed facts of the case are these:

In 1947 defendant, A. K. Roy, Inc., acquired the land, a small tract in Jefferson Parish lying between the former right-of-way of the New Orleans Lakeshore Hammond Highway and Lake Pontchartrain. On October 6, 1948 the property was sold to the State for non-payment of taxes for 1947 but this sale was cancelled as erroneous on October 19, 1951 by the Register of the State Land Office. Meanwhile, defendant had agreed to sell the property to plaintiff, Mrs. Bourree, for $5,115 cash and, after some delay resulting from examination of title and the furnishing of a title guarantee, the act of sale was finally passed on October 25, 1951. However, long prior to the sale, by resolution adopted in December of 1948 and by another resolution adopted on March 24, 1949, which was registered in the conveyance office records of Jefferson Parish on August 26, 1949, the Board of Commissioners of the Pontchartrain Levee District appropriated the land for levee uses and, when Mrs. Bourree attempted to take possession under the act of purchase of October 25, 1951, she ascertained that the Levee Board had previously taken full possession of the property. She thereupon made amicable demand on defendant for a remission of the sale and offered to retrans-fer the property but defendant refused to accept the tender and reimburse plaintiff for the purchase price. This suit followed.

Although defendant denied in its answer' that plaintiff is entitled to the relief prayed for in the petition, it offered no defense and the validity of her claim was conceded below and in this Court. However, defendant, invoking the provisions of the Third Party Practice Act (Act 433 of 1954, incorporated in the Revised Statutes as R.S. 13:3381-3386), called the Board of Commissioners of the Pontchartrain Levee District as a third-party defendant and alleged that, by reason of its appropriation of the property, said Board is liable to it under Section 6 of Article 16 of the Constitution for $5,000, this being the alleged assessed value of the land for 1948, the year preceding its appropriation.

To this demand, the Board of Commissioners of the Pontchartrain Levee District appeared and filed an exception ,of no right or cause of action which was referred to the merits of the case. In its answer, the Board admitted the appropriation of the property but denied defendant’s right to call it either in warranty or under the third-party statute and prayed to be dimissed.

After a hearing, there was judgment in favor of plaintiff and against defendant, setting aside the sale and for reimbursement of the purchase price and defendant’s third-party action against the Board of Commissioners of the Levee District was upheld, judgment being granted against said Board in defendant’s favor for $5,000. The Board has appealed from the judgment against it and defendant has also appealed solely, according to its counsel, as a measure of precaution.

As we have above stated, there is no issue between plaintiff and defendant as the latter admits that the judgment against it in plaintiff’s favor is correct. On the other hand, there is considerable doubt that defendant had the right to invoke the third-party statute against the Levee Board and require the latter to respond in this suit to' its demand for the constitutional gratuity': not exceeding the assessed value of the land ■ appropriated. This question arises' under the Board’s exception of no right of' action.

The first paragraph of R.S. 13:3381, npon which defendant’s call is founded, reads:

“In any civil action' presently pending ' or hereafter filed the defendant in a principal action may by petition bring in any person (including a co-defendant) who is his warrantor, or who is or may be liable to him for all or part of the principal demand(Emphasis ours.)

Since it is obvious that the Levee Board is not defendant’s warrantor, the only basis upon which the call could be sustained is that said Board is or may be liable to defendant for all or part of the principal demand. The principal demand in this case is a recission of a contract of sale by reason of the defendant’s admitted inability to maintain plaintiff in possession and because it has breached its warranty to convey to plaintiff a title free from all encumbrances.

Defendant’s demand against the Levee Board, on the other hand, has no causal connection with the principal action. This demand seems to be predicated on the theory that, since the Board appropriated the property and has become liable to defendant for the assessed value thereof, the Board may be required to respond in this suit because, but for the appropriation, defendant would not have become liable to plaintiff for breach of contract. But the fallacy of this nebulous theory is that the asserted indebtedness of the Board to defendant neither arose out of nor did it result from defendant’s breach of contract with plaintiff. On the contrary, the appropriation of defendant’s property by the Levee Board occurred long before defendant conveyed the land to plaintiff and the alleged servitude which was exercised by the Board for levee purposes had burdened the property from the time it was separated from the public domain. See Dickson v. Board of Com’rs, 210 La. 121, 26 So.2d 474; Delaune v. Board of Commissioners, 230 La. 117, 87 So.2d 749 and cases there cited.

Thé purpose of the third-party action statute was to provide a method for the settling in one suit of all liability in the numerous instances in which a third party is indebted to the defendant for all or part of the obligation sued upon by plaintiff although no express contract of warranty existed between the defendant and the party called. See discussion of the statute by Professor Henry G. McMahon in IS La. Law Review, 46-49. And, when properly employed, the statute, which is patterned on federal third-party practice, as set forth in Federal Rule of Civil Procedure 14(a), 28 U.S.C.A. accomplishes a salutary function. However, it is manifest that it would lead to undesirable results to permit the statute to be extended to any case in which the indebtedness of the third party to the defendant did not arise out of or have causal connection with the main demand. This case presents a classic example of an attempt to make an improper use of the statute and we think that the Levee Board’s exception of no right of action should have been sustained.

The judgment appealed from is therefore reversed insofar as it holds the Board of Commissioners of the Lake Pontchartrain Levee District liable to defendant on the latter’s call under Act 433 of 1954 (R.S. 13:3381-3386) and defendant’s petition is dismissed. In,all other respects, the judgment appealed from is affirmed. Defendant is to pay all costs and the right is reserved to it to proceed against the Board of Commissioners of the Lake Pontchartrain Levee District in a direct action for such redress as may be appropriate.

HAMLIN, J. ad hoc., recused.

      . The Board has filed in this Court a plea of prescription of two years provided by Article 2630 of the Civil Code and R.S. 9:5624, which is applicable to actions for damages and claims resulting from the expropriation of land. In view of the conclusion we reach, it is unnecessary to pass on this plea.


author: PONDER, Justice. ' McCALEB, Justice

text:
    232 La. 157
    Gabriel MALLETT v. UNION OIL and GAS CORPORATION OF LOUISIANA and Humble Oil and Refining Company.
    No. 42902.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Rebearing Denied April 1, 1957.
    Lislcow & Lewis, Lake Charles, Tinsley Gilmer, Bernard J. Caillouet, New Orleans, for defendants-appellants.
    Herschel N. Knight, Jennings, for plaintiff-appellee.
   PONDER, Justice. '

This is an appeal from a judgment ordering the cancellation of an oil and gas lease. .The plaintiff sought in this suit the cancellation of an oil and gas lease on the ground that the primary term of the lease had terminated on April 24, 1955. The defendants answered denying that the lease had expired or terminated and averred that the lease has been maintained in full force and effect by the production on adjacent property by virtue of pooling and unitization of a portion of the land under lease with other property. Upon trial of ’ the case, the lower court, relying on the holding in Wilcox v. Shell Oil Co., 226 La. 417, 76 So.2d 416, gave judgment ordering the cancellation of the lease and awarded attorney’s fees. The defendants have appealed.

This case was tried upon an agreed stipulation of facts. The plaintiff as landowner granted a lease on 160 acres of land to S. P. Beckenstein on April 24, 1950, for a primary term of five years. Beckenstein assigned the lease to Humble Oil and Refining Company, hereinafter referred to as Humble, on June 30, 1950. Humble assigned the lease to Union Oil and Gas Corporation, hereinafter referred to as Union, on March 7, 1955. Union had previously completed a well on January 11, 1955, on a tract owned by W. J. Broussard and adjoining the plaintiff’s land. In the month of March, 1955, Humble sought to get an extension of the lease from the plaintiff which was refused. Three days prior, on April 21, 1955, to the expiration of the lease Union filed for record a declaration of unitization covering some 159.9 acres, 53.3 acres of which was the property of the plaintiff and the remaining acreage was the Broussard property. It is to be noted that the Broussard well had been producing gas since January 11, 1955 and it was unitized with the plaintiff’s property three days before the expiration of the lease after the plaintiff had refused to extend the lease. The plaintiff demanded the cancellation of the lease which was refused by the defendants. The plaintiff then instituted the present proceedings under the provisions of LSA-R.S. 30:102 seeking the cancellation of the lease and an award of $2,500 attorney’s fees.

The question presented for our determination is whether Union could under the terms of the plaintiff’s, Mallett’s, lease create a unit by pooling and unitizing plaintiff’s land with the Broussard land upon which a producing well was located ' and thereby extend plaintiff’s lease beyond its primary term.

The trial judge was of the opinion, as reflected by his written reasons for judgment, that the provisions of the lease involved herein were so similar to the provisions in the lease involved in the Wilcox v. Shell Oil case, supra, that that decision was controlling..

In the Wilcox case this Court held that under the terms of the lease involved therein that the lessee could not extend the lease by pooling the leased lands with lands already under production for the reason that the language embodied in the lease contemplated pooling before development. Every lease contract must be governed by its own terms because it is the law between the parties.

Under the terms of the lease involved in this case, the lessee is granted the right to go upon the property of the plaintiff to investigate, explore, prospect, drill, and mine for minerals. In other words, the lessee is granted the right to go upon the property and develop it in order to secure minerals. The purpose of the lease being such, any pooling agreement provided for therein must be considered as incidental to and an aid in carrying out that purpose unless there is clear and unmistakable language contained therein to the contrary. In other words, if the right to pool with producing property is given it must be specifically set out in the lease and cannot be eked out by innuendo. The contract must be construed against the lessee for he either prepares the lease or furnishes the prepared form.

The provisions contained in this lease relating to pooling are as follows (Paragraph 4 of the lease in question) :

“Lessee, at its option, is hereby given the right and power to pool or combine the acreage covered by this lease, or any portion thereof as to oil and gas, or either of them, with other land, lease or leases in the immediate vicinity thereof to the extent, hereinafter stipulated, when in Lessee’s judgment it is necessary or advisable to do so in order properly to develop and operate said leased premises in compliance with the orders, rules and regulations of State and Federal governmental authority, or when to do so would, in the judgment of Lessee, promote the conservation of oil and gas from said premises. Units pooled for oil hereunder shall not substantially exceed 40 acres each in acre, and units pooled for gas hereunder shall not substantially exceed in area 160 acres each plus a tolerance of 10% thereof, provided that should governmental authority having jurisdiction prescribe or permit the creation of units larger than those specified, units thereafter created may conform substantially in size with those prescribed by governmental regulations. Lessee under the provisions hereof may pool or combine acreage covered by this lease, or any portion thereof as above provided as to oil in any one or more strata and as to gas in any one or more strata. The units formed by pooling as to any stratum or strata need not conform in size or area with the unit or units into which the lease is pooled or combined as to any other stratum or strata, and oil units need not conform as to area with gas units. The pooling in one or more instance shall not exhaust the rights of the Lessee hereunder to pool this lease or portions thereof into other units. Lessee shall execute in writing and record in the Conveyance Records of the Parish in which the land herein leased is situated an instrument or instruments identifying and describing the pooled acreage. The entire acreage so pooled into a tract or unit shall be treated for all purposes except the payment of royalties as if it were included in this lease, and drilling or reworking operations thereon and production of oil and gas, or either of them, from any stratum or strata so pooled shall be considered for all purposes except the payment of royalties as if the operations were on and production were from the land covered by this lease, whether or not the well or wells be located on the premises covered by this lease. In lieu of the royaties elsewhere herein specified, Lessor shall receive, on pooled production from a stratum or strata unitized under the provisions hereof, only such portion of the royalties stipulated herein as the amount of the acreage (surface acres) covered by this lease and included in the unit as to the unitized stratum or strata, or Lessor royalty interest therein on an acreage basis, bears to the total acreage (surface acres) so pooled in the particular unit involved; provided, however, no reduction of shut-in gas royalties shall be made under this provision. The production from an oil well will be considered as production from the lease or oil pooled unit from which it is producing and not as production from a gas pooled unit; and production from a gas well will be considered as production from the lease or gas pooled unit from which it is producing and not from an oil pooled unit.”

It appears throughout the lease that it contemplates the development of the property by drilling thereon and we find throughout the lease references made to the drilling or reworking operations; production of oil and gas; and commencing drilling operations. In paragraph 4 we find this language, after reference is made to the right to pool, viz.: “when in Lessee’s judgment it is necessary or advisable to do so in order properly to develop and operate said leased premises.” In the same paragraph of the lease it is to be noted that the phrase “drilling or reworking operations thereon and production” are used.

In paragraph 5 this language is used: “If operations for drilling are not commenced on the land covered hereby or on land with which land covered hereby is pooled hereunder, as above provided.”

In paragraph 6 we find this language, “this lease shall not terminate if Lessee commences or resumes the payment or tender of rentals, or commences drilling operations or" reworking operations.”

In paragraph 9 we find this language: “After the production of oil, gas, sulphur or other mineral has been secured from the land covered hereby or land pooled therewith.”

In paragraph 11 we find, viz.: “Should Lessee be prevented from complying with any express or implied covenant of this lease from conducting drilling or reworking operations,” etc.

The language used in this lease unmistakably shows that the pooling agreement was authorized only for-the purpose of development and the right to unitize with producing property was not granted. The whole tenor of the lease and the pooling agreement contemplates pooling before production.

The defendant states in his assignment of error that the court erred in awarding attorney’s fees. However, this point was not argued or briefed. It is stipulated in the record that should the plaintiff be entitled to recover attorney’s fees that the amount awarded was reasonable. Under. LSA-R.S. 30:102 the plaintiff is entitled to recover reasonable attorney’s fees when the lessee refuses to cancel a lapsed lease upon demand.

For the reasons assigned, the judgment of the lower court is affirmed at appellants’ cost.

SIMON, J., concurs in the decree.

McCALEB, Justice

(dissenting).

I cannot agree that the provisions of the lease in this case are substantially the same as those in Wilcox v. Shell Oil Company, 226 La. 417, 76 So.2d 416, or that the language embodied in the- lease .áuthorizes the conclusion that the right" given to the lessee to unitize must be exercised before the commencement1 of drilling and production from the unit. ■

As I see it, the only paragraph of the lease having any bearing on the right of the lessee to unitize is paragraph 4, which plainly confers upon the lessee the right to create the unitized area “at its option”. There is nothing in that paragraph, or in any other part of the lease for that matter, which either directly or by innuendo makes the right to pool the acreage conditioned upon the establishment of the unit prior to development. On the contrary, paragraph 4 expressly stipulates that it may be done “when in Lessee’s judgment it is necessary or advisable to do so in order properly to develop and operate said leased premises in compliance with orders, rules and regulations of State and Federal governmental authority, or when to do so would, in the judgment of Lessee, promote the conservation of oil a/nd gas from said premises (Italics mine.)

The clause in paragraph 4 of the lease, relied on by counsel for lessor as exhibiting that the unit must be created before drilling and production does not, in my opinion, sustain this position. That provision reads :

“The entire acreage so pooled into a tract or unit shall be treated for "all purposes except the payment of royalties as if it were included in this lease, and drilling or reworking operations thereon and production of oil and gas, or either of them, from any stratum or strata so pooled shall be considered for all purposes except the payment of royalties as if the operations were on and production were from the land covered by this lease whether or not the well or wells be located on premises covered by this lease.”

Counsel points to the conjunction “and”, which I have above. italicized, and argues that drilling amd production is essential in order for'the unitization of the leased property to become effective. This is true but it does not restrict in any manner the time when the unit may be formed or warrant the conclusion that unitization must • take place prior to drilling and production.

I respectfully dissent.


author: FOURNET, Chief Justice.

text:
    232 La. 168
    Mrs. Florence A. ROCHE v. METROPOLITAN LIFE INSURANCE COMPANY.
    No. 40835.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    Henry G. Neyrey, Jr., E. B. Charbonnet, Jr., New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, J. Barnwell Phelps, New Orleans, for defendant-appellee.
   FOURNET, Chief Justice.

The plaintiff, Mrs. Florence A. Roche, instituted suit to recover on a policy of insurance issued by the defendant, Metropolitan Life Insurance Company, on the life of her late husband, ■ William T. Roche, in which she is named as beneficiary. The defendant in its answer admitted issuance of the policy but made the affirmative defense that in the application for the policy in suit the insured had made certain false and fraudulent answers for the purpose of deceiving the defendant as to the true condition of his health, and that the policy would not have been issued had the true facts been disclosed. The answer adds that the defendant has no interest in the sum of $321.36 paid to it as premiums on said policy, which amount had been tendered to plaintiff before suit was filed, but refused, and that it wished to deposit said sum in the Registry of the Court. The deposit was made, and following trial there was judgment, rendered in accordance with the verdict of a jury, rejecting plaintiff’s demand. The plaintiff has appealed.

The record shows that on July 12, 1945, the defendant company issued its Policy No. 15,585,393A, agreeing, upon the death of the insured, to pay the sum of $3,000 to the named beneficiary, the plaintiff herein. The application for the policy is divided into Parts A, B and C. Part A, dated May 31, 1945, was, according to testimony in the record, completed by the agent from answers of the insured, and contains applicant’s name and personal data as well as the statement: “It is understood and agreed that: 1. The foregoing statements and answers are correct and wholly true and, together with the answers to questions on Part B hereof, shall form the basis of the contract of insurance, if one be issued. * * Part B, dated June 28, 1945, is labeled “Continuation of the Application, Applicant’s statements to the Medical Examiner.” Part C, the Medical Examiner’s Report, is headed by the printed notation that it is “No part of the Applicant’s Declaration.” It is in Part B that the insured answered “No” to four questions in which he was asked, respectively, if he had “ever been an inmate of a hospital, sanatorium, asylum or cure whether for observation, examination or treatment?” if he had “ever had any ailment or disease of the heart or lungs,” had “ever raised or spat blood,” or “consulted a physician for any ailment or disease not included in your above answers;” and to a fifth question, “What clinics, hospitals, physicians, healers or other practitioners, if any, not named above, have you consulted or been treated by, within the past five years?” he answered “None” — whereas the uncontradicted record of the Charity Hospital at New Orleans •shows that the insured visited the outpatient clinic of that institution, for the purpose of being treated for tuberculosis, several times each year beginning, in 1938 .and extending through 1945, having spent four days as a patient in the hospital in 1938 when his condition was diagnosed as pulmonary tuberculosis; and that X-Rays •were taken of his lungs on various occasions in each of those years, the last having been made on March 15, 1945.

Counsel for appellant argues that the insured considered his illness to be trivial and of no consequence, and, relying on Cunningham v. Penn Mut. Life Ins. Co., 152 La. 1023, 95 So. 110, submits that his misstatements should not be held to void the policy. Counsel also points to the fact (established on the trial of the case) that the policy was written at the insistence of defendant’s agent who, having sold Roche two policies some eight or nine years previously, sought to induce him to take a new one for $10,000 — yet the insured applied for only the $3,000 policy contested here; and he argues that this negates any attempt to defraud the defendant.

The instant contract was confected prior to the adoption of Act 195 of 1948, the Insurance Code of Louisiana (now incorporated in the Revised Statutes as R.S. 22:1 et seq.), and the law applicable is set out in Act 52 of 1906, as amended by Act 227 of 1916. A purpose of this and enactments of other states containing similar provisions was to abolish the highly technical doctrine of warranty, the intent of the Legislators being to transform a warranty into a representation, thus saving a policy of insurance from forfeiture for false statements contained therein unless they are found to be material or fraudulent. See Vance, Handbook of the Law of Insurance (3rd ed. 1951) 417, Sec. 74. In Goff v. Mutual Life Ins. Co. of New York, 131 La. 98, 59 So. 28, this Court commented on the difference between warranties and representations, observing that in the case of the latter, their falsity does not vitiate the policy unless material, and that a statement in an application for life insurance, to be material, must have been an inducement to the contract. See 45 C.J.S., Insurance, § 595d(3), p. 406; 29 Am.Juris. 422, Insurance, Sec. 524; ’annotation, 63 A.L.R. 846 et seq., in particular at 854, subdivision “n”; annotation 131 A.L.R. at 617 et seq.; Rhodes v. Metropolitan Life Ins. Co., 5 Cir., 172 F.2d 183.

The rule universally obtaining is clearly and succinctly stated in 45 C.J.S., op. cit. supra, thus: “To avoid a policy on the ground of false representation, the representation ordinarily must relate to a matter material to the risk, the test of materiality being whether knowledge of the facts would have influenced the insurer in determining whether to accept the risk or in fixing the amount of premiums. In the absence of statute, a causal connection between the facts misrepresented and the death of the insured is not necessary to establish the right to forfeiture.”

A case having many points of similarity to the one now being considered, and which we think is controlling here, is that of Lee v. New York Life Ins. Co., 144 La. 445, 80 So. 652. In that case, as here, the application for insurance was made on the solicitation and insistence of defendant’s agent, who sought to induce the insured to take a policy for a much larger amount than that applied for; there, as here, the insured denied ever having had any ailment or illness of various named organs of the body, and gave an untrue answer about having ever consulted a physician; the medical examination in both cases revealed no past or present disease, and in the Lee case, as here, the insured had the appearance of a' healthy man, led an active life attending to his business — yet suffered from a chronic condition (Bright’s disease) for which he had received treatment from physicians-over a period of years arid had been given-certain tests which are usually identified1 with the disease. This Court, in affirming the lower court’s judgment dismissing the suit of the beneficiary under the policy, held that if the insurance company had been advised of those tests, some of which occurred" a short while before the application for insurance, “it would not have insured his life without knowing the result of those tests, and * * * the information that was withheld was therefore material.” 144 La. at page 454, 80 So. at page 655.

From the record it is clear that the insured, at the time he made this application* was not only aware of the fact that he was suffering from pulmonary tuberculosis, but is bound to have known of the seriousness-of his condition because of the number of consultations, the various tests, and the-eighteen X-Rays made of his chest and’ lungs during the period; and we are equally-satisfied that the information withheld was.material and that the defendant would not have insured the life of Roche without fur-' ther information relative to the showing.made by the tests and examinations men- • tioned above.

The case relied on by plaintiff, Cunningham v. Penn Mutual Life Ins. Co., 152 La. 1023, 95 So. 110, is not apposite from a?, factual or a legal standpoint; that case-applied the well settled rule of our jurisprudence that questions to an applicant for - insurance concerning diseases or consultations are to be understood as referring to . appreciable disorders, and not to inconsequential illnesses of a temporary character, . though attended by a physician; so that - although the answers may be knowingly - untrue, the policy will not be thereby avoided unless the said representations are material to the risk.

Nor is there merit in the plaintiff’s argument that “No evidence whatever was offered to show that the insured signed Part IB of the application annexed to the policy, nor was it shown that any of the answers appearing therein were written into the application before the same was signed by whomever signed it,” and therefore the plaintiff must prevail since, having made an affirmative defense based on the falsity of certain answers in Part B, the defendant carried the burden of proving every element to maintain the defense. That rule does not apply where, as here, the plaintiff’s claim is founded on the genuineness of the very document as to which she now seeks to put defendant to strict proof. The plaintiff waived the need of such proof; so long as the signature is genuine for purposes of her recovery, it is also genuine with respect to a defense based on the falsity of its declarations. See Wigmore on Evidence (3rd ed. 1940), Vol. IV at 589, Sec. 1297; op. cit., Vol. VII at 575-576, Sec. 2132.

Our attention is called to the fact that the judgment makes no reference to the sum of $321.36, representing annual premiums on the policy, which amount was deposited in the Registry of Court below by the defendant. To that extent the judgment will have to be amended.

For the reasons assigned the judgment .appealed from is amended by decreeing Mrs. Florence A. Roche to be the owner of the money deposited by the defendant in the Registry of Court, and accordingly the Clerk of the District Court is ordered to turn over to her the amount of $321.36, and as thus amended the judgment appealed from is affirmed; the plaintiff to ;pay all costs.

      . The death of the insured occurred on October 6, 1946, though admittedly from a cause other than pulmonary tuberculosis.

      . This is said to be shown through the testimony of plaintiff’s witnesses, which was uncontradicted and was to the effect that the insured was active in his business of conducting two barrooms in which he owned an interest, of running a handbook on horse racing and conducting ■poker games; he took no special rest, ■spent almost all his waking hours at his place of business, led a life that at times -was dissipated; he also acted as precinct captain and held a job as sidewalk inspector for the City of New Orleans; ■never spoke of any illness, appeared well and healthy, and no precautions were taken to protect members of the family from contagion, though his grandchildren were often at his home.

      . “Be it enacted * * * That every policy of insurance issued or delivered within the State on or after the first day of January, nineteen hundred and seven, by auy life insurance corporation doing business within the State shall contain the entire contract between the parties and nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application or other writings unless the same are endorsed upon or attached to the policy when issued; and all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties, and no statement or statements not endorsed upon or attached to the policy when issued shall he used in defense of a claim under the policy unless contained in a Witten application and unless a copy of such statement or statements he endorsed upon or attached to the policy when issued. Any waiver of the provisions of this section shall be void.” Act 52 of 1906, as amended by Act 227 of 1916. See Dart’s Louisiana General Statutes, Yol. 3, Sec. 4113. (The portion shown in italics indicates that which was added by the 1916 amendment.)

      . His answer was “Tes,” with the explanation that the consultation related to malaria of which he had had a mild attack one year before, lasting only three or four days.