text:
    STATE of Louisiana v. Lawrence MACK.
    No. 2006-K-0130.
    Supreme Court of Louisiana.
    June 16, 2006.
   In re State of Louisiana; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 450-050; to the Court of Appeal, Fourth Circuit, No. 2005-KA-0137.

Granted. The decision of the court of appeal is reversed and defendant’s sentences are reinstated. Given that the evidence at trial could have supported a verdict of guilty on one count for the charged offense of possession of marijuana with intent to distribute, a crime which carries a maximum sentence of 30 years at hard labor, La.R.S. 40:966(B)(3), and that the defendant’s prior felony conviction was for a crime of violence enumerated in R.S. 14:2(13), no abuse of the trial court’s broad discretion is apparent in the consecutive sentences imposed on the defendant.

JOHNSON, J., would deny.


source: Caselaw Access Project

author: HAWTHORNE, Justice. FOURNET, Chief Justice VIOSCA, Justice ad hoc FOURNET, Chief Justice. McCALEB, Justice

license: Public Domain

text:
    231 La. 775
    Leila Murray DAY v. DEPARTMENT OF INSTITUTIONS.
    No. 42825.
    Supreme Court of Louisiana.
    June 29, 1956.
    Dissenting Opinion Yiosca, J., Aug. 15, 1956.
    On Rehearing Jan. 21, 1957.
    Cadwallader & Dameron, Baton Rouge, Mary Bird Perkins, Baton Rouge, of counsel, for relator and appellant.
    Sargent Pitcher, Baton Rouge, for ap-pellee.
   HAWTHORNE, Justice.

Alleging that the State Department of Institutions has unjustifiably terminated her employment as a c-lerk, Mrs. Lelia Murray Day seeks in these proceedings before the State Civil Service Commission to be reinstated in her former position with full back salary to the date of reinstatement.

This is the second time this case has been before this court. Our prior decision was on Mrs. Day’s appeal from a judgment of the Civil Service Commission maintaining an exception of no right of action filed by the Department of Institutions on the ground that she had permitted more than 30 days to elapse between the time when she had been deprived of her rights or otherwise discriminated against and the date of her demand for a hearing before the Civil Service Commission. See Day v. Department of Institutions, 228 La. 105, 81 So.2d 826. The Department of Institutions in filing its exception took the position that Mrs. Day had orally resigned on September 1, 1953, and that she did not apply to the Civil Service Commission for a hearing until February 8, 1954. The Civil Service Commission maintained this exception, finding that Mrs. Day had allowed more than 30 days to elapse between her oral resignation on September 1 and her appeal to the Commission on February 8, and that consequently her appeal was not timely under Rule 13.2 of the Commission. On appeal this court overruled the exception and remanded the case to the Civil Service Commission for further proceedings according to law. On the remand the Civil Service Commission tried Mrs. Day’s case on the merits and denied the relief sought. She has again appealed to this court.

In the course of the prior opinion we set forth the contention of the appointing authority and announced the law applicable as follows:

“ * * * The contention of the appointing authority that Mrs. Day orally resigned effective September 1, 1953, and the conclusion reached by the Civil Service Commission that Mrs. Day knew at the latest in November, 1953, that the Department of Institutions had treated her as having resigned and had removed her from the payroll as of September 1, 1953, could not stand the test prescribed in the Rules adopted by the Commission itself. In order to make effective the removal of the subject employee from the payroll, the fact of the acceptance of her alleged oral resignation and of her removal from the payroll should have been made known by a statement in writing to her and to the Director in advance of such action.” (Italics ours.) See Day v. Department of Institutions, supra, at 228 La. 112, 81 So.2d 828.

In this former opinion we pointed out that the only written notice received by the appellant was a letter from Dr. Grant dated January 27, 1954. As Mrs. Day’s appeal to the Civil Service Commission was filed on February 8, 1954, it was taken less than 30 days from the date of this letter and was therefore timely under Rule 13.2 of the Commission. See Day v. Department of Institutions, supra.

Pursuant to Article 14, Section 15(0) (1), of the Louisiana Constitution, “* * The decision of the appropriate Civil Service Commission shall be final on the facts, but an appeal shall be granted to the Supreme Court of Louisiana on any question of law if application to the Commission is made within thirty (30) days after the Commission’s decision becomes final”. (Italics ours.)

In the instant case the Civil Service Commission has found as a fact — this finding of fact is final, and we do not have jurisdiction to review it — that Mrs. Day orally resigned from her position on September 1, 1953; that written notice of her removal from the payroll because of her oral resignation was given to her by the letter of Dr. Grant dated January 27, 1954 ; and that the director of the department had likewise received written notice of Mrs. Day’s re-, moval from the payroll by reason of her resignation of September 1, 1953. The Civil Service Commission then said: “Thus, all the requirements of the Rules as construed by the Supreme Court [in the first Day case] have been met.” The Commission consequently refused to reinstate Mrs. Day, finding that she had been effectively removed from the payroll as of January 27, 1954.

We find no error of law in this ruling.

As heretofore pointed out, the Commission found as a fact that Mrs. Day orally resigned on September 1, 1953. This fact standing alone would not have the effect, under our previous decision in this case, of removing her from the payroll. We said in our previous decision that before her removal from the payroll could become effective, the acceptance of her oral resignation and her removal from the payroll would have to be made known by a statement in writing to her and to the director in advance of such action. The Commission found that appellant orally resigned on September 1, and that her removal from the payroll under the decision in the above case was made known to her in writing on January 27. The question then presented is whether she is entitled to pay for this period of time.

According to the findings of the Commission, Mrs. Day obtained a leave of absence without pay beginning August 19 or 20, 1953, and since that time has never returned to her classified position in, or done a day’s work for, the Department of Institutions. According to the Commission, the evidence failed to establish that Mrs. Day ever terminated her leave of absence without pay. Consequently it follows that on January 27, 1954, when her oral resignation became effective and she was legally removed from the payroll, she was still on leave of absence without pay.

We are therefore of the opinion that the decision of the Commission refusing to reinstate Mrs. Day and denying to her any back salary is correct and should be affirmed.

For the reasons assigned the decision of the Civil Service Commission is affirmed.

FOURNET, C. J., dissents and assigns written reasons.

PONDER, J., dissents.

VIOSCA, J. ad hoc, dissents in part being of the view that Mrs. Day is entitled to compensation for the period of time between the date she returned to work and the date her removal was made known to her by a statement in writing.

FOURNET, Chief Justice

(dissenting).

This case is before us on appeal by Mrs. Lelia Murray Day from an adverse ruling of the Civil Service Commission for the second time. When the case was previously before us we reversed the ruling of the State Civil Service Commission maintaining the Department of Institutions’ exception of no right of action and dismissing Mrs. Day’s appeal to the Commission on the ground that it had not been filed within 30 days, as required by the Rules adopted by the Commission in accordance with Act 18 of 1952, incorporated in the Constitution of 1921 under Article 14 thereof. 228 La. 105, 81 So.2d 826.

According to the findings of fact of the Commission in that case, “On the effective date of the Civil Service Amendment [June 30, 1953], Mrs. Lelia Murray Day was an elected member of the East Baton Rouge Parish Democratic Executive Committee, and also an employee, on leave, of the Department of Institutions. On or about August 28, 1953, while Mrs. Day was still on leave, the Department’s Personnel Officer advised her, by telephone, that she could not legally occupy both positions. The Personnel Officer testified that as a result of this conversation, Mrs. Day verbally resigned from the Department. Mrs. Day testified that she had advised the Personnel Officer that she had resigned from the Parish Committee, and that she had never resigned from the Department.

“On September 1, 1953, the Department officially notified the Civil Service Department that Mrs. Day had resigned, and since that date Mrs. Day has not been on the payroll of the Department of Institutions. Mrs. Day subsequently met with the Director and the Personnel Officer of the Department and protested that she had not resigned from the Department. At this meeting, she was advised that she was no longer on the Department’s payroll. The date of this meeting was fixed by Mrs. Day as September 23, 1953, the other witnesses fixed the date as the latter part of November, 1953. In either event, the evidence is clear that as of the date of this meeting, Mrs. Day knew that she had been removed from the payroll of the Department of Institutions.

“Subsequently, after a conference in January between Mrs. Day, her attorney, the Director and Personnel Officer of the Department of Institutions and members of the staff of the Civil Service Department, Mrs. Day, on February 8, 1954, filed her appeal.”

And under its conclusions of law, based upon Rule 13.2, making it the mandatory duty of the Commission to grant a hearing to a person who alleges he or she has been deprived of his or her rights or otherwise been discriminated against within 30 days of any such action, the Commission, in maintaining the exception of no right of action and dismissing the appeal, reasoned: “Conceding that Mrs. Day did not actually resign; she was deprived of her rights and discriminated against when the Department treated her as having resigned and removed her from the payroll on September 1, 1953. Even if the 30 days within which Mrs. Day could appeal did not commence to run until she was aware of this action, and conceding that she was not aware of it until late November of 1953, nevertheless the 30 days had long since passed when this appeal was filed, on February 8, 1954.”

In reversing this ruling we unequivocally held that under Rule XII of the Civil Service Commission, adopted pursuant to the authority vested in it by the Constitution, “In order to make effective the removal of the subject employee from the payroll, the fact of the acceptance of her alleged oral resignation and of her removal from the payroll should have been made known by a statement in writing to her and to the Director in advance of such action,” pointing out that “The contention of the appointing authority that Mrs. Day orally resigned effective September 1, 1953, and the conclusion reached by the Civil Service Commission that Mrs. Day knew at the latest in November, 1953, that the Department of Institutions had treated her as having resigned and had removed her from the payroll as of September 1, 1953, could not stand the test prescribed in the Rules adopted by the Commission itself.” [228 La. 105, 81 So.2d 828.] (Emphasis added.)

From the foregoing it is clear that when this case was “remanded to the Commission for further proceedings according to law and not inconsistent with the views herein expressed,” and on remand was submitted to it on the record as made up, the Commission was bound by this ruling of law. And, applying this law to the facts of the case as found by the Commission, namely, that Mrs. Day on or about August 28 had orally resigned her position effective September 1, 1953, and that the Civil Service Department was formally notified thereof by her employer, the Department of Institutions, it is clear that Mrs. Day was never effectively removed from the payroll, since the fact of the acceptance of her alleged oral resignation and of her removal from the payroll was not “made known by a statement in writing to her and to the Director in advance of such action.1’ Boucher v. Division of Employment Security, 226 La. 227, 75 So.2d 343.

In the Boucher case, as pointed out in the original opinion, “this Court held that a person who had acquired permanent civil service status could not be demoted, dismissed or discriminated against by the appointing authority without furnishing the employee and the Director, in advance of such action, a statement in writing giving explicit and detailed reasons therefor, and notifying the employee of his right to appeal to the Louisiana Civil Service Commission; and failure to give such notice rendered the employer’s action illegal.’’ (Emphasis supplied.)

The Commission’s ruling to the contrary on the remand of the case of necessity was not consistent with this holding; in fact, was in direct violation thereof when it concluded “all of the requirements of the Rules as considered by the Supreme Court have been met” when “The Director of the Department of State Civil Service received written notice on September 1, -1953, of Mrs. Day’s removal from the payroll by reason of her resignation, and the letter of January 27, 1954, is a statement in writing to Mrs. Day of her removal from the payroll by acceptance of her resignation. * * * The reasons supporting the remand decree of the Supreme Court indicate that such written statement could operate as an effective removal of Mrs. Day from the payroll only from its date, leading to the conclusion that Mrs. Day became effectively removed from the payroll as of January 27, 1954.” The letter of January 27, 1954, cannot by any fiction <of the imagination be construed to be, ¡pursuant to Rule XII, a letter by the ap,pointing authority furnishing Mrs. Day and the Director a statement in writing advising the fact of acceptance of her alleged oral resignation and of her removal from the payroll in advance of such action— meaning in advance of the effective date •of the resignation and of her removal from the payroll.

Under the particular facts presented there was nothing which the Commission could do on the remand of this case but to rule that Mrs. Day was never legally removed from the payroll of the Department of Institutions; and, under the holding of the cases of State ex rel. Boucher v. Heard, 228 La. 1078, 84 So.2d 827, and State ex rel. Anderson v. Walker, No. 42, 842, 230 La. 816, 89 So.2d 324, she was continued on the payroll of the Department of Institutions in her capacity as Clerk with permanent Civil Service status, and entitled to pay from the date that her leave of absence ended, to continue until legally removed.

The Commission, in order to reach the conclusion it did in dismissing Mrs. Day’s claim on the merits, in addition to distorting the law of the case as laid down by this Court when previously before us, found as a fact, without factual basis, “The evidence fails to establish that Mrs. Day ever terminated her leave of absence without pay.” While, under the express provisions of the Constitution creating Civil Service in this State, in reviewing rulings of the Commission we are without authority to review the facts, our jurisdiction being limited to a review of errors of law alone, I do not think it can be gainsaid that we are not bound by an arbitrary and capricious conclusion of the Commission. Such a ruling is not only inimical to the object and purpose of the Civil Service law of this State, but is ■contrary and repugnant to a fair and legal administration of that law by those entrusted with the power of enforcing its provisions. Of necessity such an abuse is illegal and subject to review.

The testimony of Mrs. Day that she reported to the office of Dr. Grant to go to work is not disputed; the only dispute is as to the date she appeared in that office (see footnotes 4 and 5 of the original hearing). She placed the date of the meeting with Dr. Grant on September 23, 1953, while Dr. Grant and the Director of Personnel, Miss Mclnnis, placed the date at the latter part of November, at which time, according to Dr. Grant, “She wanted to come back * * * and I said, ‘Well, that can’t be done because as a separate job that detail does not any longer exist. It has been taken care of within another job,’ ” and assured her “we would use every influence we could to get her a job in another department doing the same thing she had done for us.” And unless the Commission could find some evidence in the record on which to base a different conclusion (which I have not been able to find), it would appear that the testimony is uncontroverted that her leave of absence without pay was terminated not later than some time during the latter part of November, 1953; but if it can be said I am wrong about this, it cannot be denied that Mrs. Day’s letter of January 21, 1954, through her attorney, addressed to her employer, requesting that she be returned to her employment with the Department of Institutions, would be controlling.

I cannot therefore agree with the majority opinion that there was no error in the ruling of the Commission that “all the requirements of the Rules as construed by the Supreme Court * * * have been met,” and the Commission’s finding that she “had been effectively removed from the payroll as of January 27, 1954.”

VIOSCA, Justice ad hoc

(dissenting).

I respectfully dissent in part, being of the view that Mrs. Day is entitled to compensation for the period of time between the day she returned to work and the date her removal shall have been made known by statement in writing to her and to the Director in advance of such action.

I concur in the majority opinion, insofar as it holds that our jurisdiction under Article 14, Section 15(0) (1), of the Louisiana Constitution is limited to questions of law and that the decision of the appropriate Civil Service Commission is final on the facts. There is, however, a vast difference between a finding of facts and the drawing of an erroneous legal conclusion from undisputed facts. As pointed out in the majority opinion, as well as in the dissenting opinion of Chief Justice Fournet, -no civil servant may be removed from the payroll, whether it be for cause or because of'acceptance of an oral resignation, until after a statement in writing to that effect is made known to the civil servant and to the Director in advance of such action. Boucher v. Division of Employment Security, 227, 75 So.2d 343; Day v. Department of Institutions, 228 La. 112, 81 So. 2d 828; State ex rel. Anderson v. Walker, No. 42,842, 230 La. 816, 89 So.2d 324.

In its finding of facts, the Commission found that Mrs. Day went on leave of absence from her position with the Department of Institutions on or about August 19, 1953, to take care of a sick sister. It further found, as a fact, that Mrs. Day expressed her intention to resign her classified position effective September 1, 1953, and that on that day Mrs. Day was eliminated as an employee of the Department of Institutions. The Commission further found that “by the preponderance of evidence, in November 1953, Mrs. Day called on the Director of the Department of Institutions to solicit reemployment.”

All of the foregoing occurred before any notice in writing was ever given to Mrs. Day of the intention of the Department to remove her from the payroll. Therefore, in November 1953, Mrs. Day was still an employee and could not “solicit reemploy-menf’. The Commission, therefore, drew an erroneous legal conclusion when it stated that she was soliciting reemployment, when,, as a matter of fact, she was returning to» her existing employment. This, of course,, brought to an end her leave without pay,. " since no one is presumed to work for nothing. ■ - ■

The fact that Mrs. Day d:d not perform any work after her illegal removal from the payroll is unimportant, for a civil servant illegally dismissed is entitled to compensation. State ex rel. Murtagh v. Department of City Civil Service, 215 La. 1007, 42 So.2d 65, and authorities therein cited.

It is my opinion that Mrs. Day is entitled to compensation from the day in November 1953 when she returned to work (erroneously referred to by the Commission as soliciting reemployment) until such time as she is legally removed by proper delivery to her and to the Director of.written notice of her removal from the payroll.

On Rehearing.

FOURNET, Chief Justice.

This case is before us for the second time from rulings of the State Civil Service Commission dismissing Mrs. Lelia Murray Day’s appeal from the action of the-Department of Institutions in. removing, her name from its payroll. At the time the case was first before us, we reversed1 the order of the State Civil Service Commission dismissing the appeal on the department’s exception of no right of action and remanded the case to the Commission “for further proceedings according to law an'd not inconsistent with the views” ' expressed in the opinion. See Day v. Department of Institutions, 228 La. 105, 81 So. 2d 826, 828. It necessarily follows that in order to intelligently ■ discuss and to. properly dispose of the present appeal, which was taken from the ruling of the Commission dismissing Mrs. Day’s appeal on the merits, it will be necessary for us to review the history of the case in- the light of our original holding, which the Commission was specifically directed to follow, and also in the light of the facts as found by the Commission and quoted in the dissenting opinion when this appeal was previously before us. These are that “On the effective date of the Civil Service Amendment (June 30, 1953), Mrs. Lelia Murray Day was an elected member of the East Baton Rouge Parish Democratic Executive Committee, and also an employee, on-leave, of the Department of Institutions. On or about August 28, 1953, while Mrs. Day was still on leave the Department’s Personnel Officer advised her, by telephone, that she could not legally occupy both positions. The Personnel Officer testified that as a result of this conversation, Mrs. Day verbally resigned from the Depart-ment. Mrs. Day testified that she had advised the Personnel Officer that she had resigned from the Parish Committee, and that she had never resigned from the department.

“On September 1, 1953, the Department officially notified the Civil Service Department that Mrs. Day had resigned, and since that date Mrs. Day had not been on the payroll of the Department of Institutions. Mrs. Day subsequently met with the Director and the Personnel Officer of the Department. At this meeting she was advised that she was no longer on the Department’s payroll. The date of this meeting was fixed by Mrs. Day as September 23, 1953, the other witnesses fixed the date as the latter part of November, 1953. In either event, the evidence is •clear that as of the date of this meeting, Mrs. Day knew that she had been removed from the payroll of the Department of Institutions.

“Subsequently, after a conference in January between Mrs. Day, her attorney, the Director and the Personnel Officer of the Department of Institutions and members of the Staff of the Civil Service Department, Mrs. Day, on February 8, 19S4, filed her appeal.”

Under these facts the Commission, •whose mandatory duty it is to grant a hearing within 30 days of the filing of an appeal under its rule No. 13.2, maintained the exception of no right of action filed by the Department of Institutions and dismissed the appeal. As the basis for such a ruling the commission reasoned: “Conceding that Mrs. Day did not actually resign; she was deprived of her rights and discriminated against when the Department treated her as having resigned and removed her from the payroll on September 1, 1953. Even if the 30 days within which Mrs. Day could appeal did not commence to run until she was aware of this action, and conceding that she was not aware of it until late November of 1953, nevertheless the 30 days had long since passed when this appeal was filed, on February 8, 1954.”

In reversing this ruling we held that under rule XII of the Civil Service Commission, adopted pursuant to the authority vested in it by the Constitution, “In order to make effective the removal of the subject employee from the payroll, the fact of the acceptance of her alleged oral resignation and of her removal from the payroll should have been made known by a statement in writing to her and to the Director in advance of such action.” Of necessity, inasmuch as Mrs. Day was never informed in writing of the acceptance' of her oral resignation prior to her removal from the payroll, she was illegally re.moved. However, being a court - of appellate jurisdiction only, we were powerless on that appeal to do any more than we did, that is, to overrule the exception of no right of action filed by the department that had been maintained by the Commission, and to remand the case to that Commission — the forum having- the power to decide the case on the merits. (The emphasis has been supplied.)

It is clear this was the .law of the case and when the appeal was remanded for further proceedings not inconsistent with these expressed views, the Commission was bound by such ruling of law. Thereunder, Mrs. Day was not only entitled, by reason of her illegal removal, to her back pay from the date of her alleged dismissal or removal, but also to reinstatement. State ex rel. Murtagh v. Department of City Civil Service, 215 La. 1007, 42 So.2d 65; Boucher v. Division of Employment Security of the Department of Labor, 226 La. 227, 75 So.2d 343.

That all parties were clearly aware this ■was the law of the case that was to be followed is clearly evidenced by the pleadings themselves, when the case was re•manded. In her pleading labeled “Application for Enforcement of Judgment of the Supreme Court of Louisiana,” Mrs. Day, through her attorney, points out the opinion originally handed down required that “a .written notice had to be given by the Department of Institutions in order to remove Mrs. Lelia Murray Day, a civil service employee, from the payroll and that the acceptance of the alleged oral resignation of Mrs. Lelia Murray Day and of her removal from the payroll must have been made known to her by a statement in writing and to the Director of Personnel in advance of such action.”

The department’s recognition of our holding to this effect is reflected by the statement in its answer that the principle that notice in writing of termination of services must be given the employee prior to the effective date of such termination “has now been extended by this Honorable Court to cover a situation such as exists here, to-wit: that where an employee voluntarily resigns from a position, that the notice of the acceptance of the resignation must be in writing." Answering further, however, it- sought under the provisions of Paragraph (0)' (3) of Section IS of Article XIV of the Constitution of 1921, to be relieved of the necessity of paying to Mrs. Day the salary allegedly withheld by the state in good faith during the period she did not work, inasmuch as the department believed its action was taken within the framework of the rules governing cases of resignation. (The emphasis has been supplied.)

The commission, quoting in full the law of the case as above set out and taking full cognizance thereof, under compulsion entertained the appeal as having been timely filed. However, holding that Mrs. Day had never in fact terminated her leave of absence without pay and had only sought re-employment, the commission, considering Dr. Grant’s letter dated January 27, 1954, as written acceptance by the department of Mrs. Day’s resignation, dismissed her appeal.

The fallacy of the reasoning of the commission lies in the fact that Mrs. Day could not have sought re-employment since she had never been legally removed from the payroll of the Department of Institutions. Nor is it disputed that Mrs. Day did in fact return to work. As pointed out above in footnote No-. 5, the only dispute was as to the day on which she returned, her testimony being this was on September 23, 1953, while that of the department officials was that she returned the latter part of November 1953. Under these circumstances, inasmuch as Mrs. Day was employed on a monthly basis, it must be held without further evidence, that she reported to work the latter part of November, intending thereby to give notice that she would terminate her leave of absence without pay and return to the service of the state beginning with the calendar month of December 1953. Consequently, she is entitled to pay from» that date until she is in fact actually and; legally removed from the payroll of the-Department of Institutions.

For the reasons assigned, the ruling of" the Civil Service Commission dismissing the-appeal of the plaintiff, and the action of the-Department of Institutions in improperly - and illegally removing her from the roll without full compliance with the provisions-of Rule XII of the Civil Service Commission, are annulled and set aside, and it is now ordered, adjudged and decreed that Mrs. Lelia Murray Day is hereby reinstated on the payroll of the Department of Institutions effective on December 1, 1953, until such time as she is legally removed therefrom, with full pay.

HAWTHORNE, J., dissents, adhering to-the views expressed in the original opinion.

McCALEB, J., dissents with written reasons.

McCALEB, Justice

(dissenting).

If the statement contained in the first majority opinion, reported in 228 La. 105, 81 So.2d 826, 828 that “In order to make-effective the removal of the subject employee from the payroll, the fact of the-acceptance of her alleged oral resignation and of her removal from the payroll should have been made known by a statement in writing to her and to the Director in advance of such action” is the law of this case, the ruling of the majority on this rehearing would be correct forasmuch as Mrs. Day was never informed in writing of the acceptance of her oral resignation prior to her removal from the payroll. But I respectfully suggest this is not the law of the case.

My view, which has heretofore been expressed in a dissenting opinion from the refusal of a rehearing on the first occa-' sion this case was before us (see 228 La. 115-116, 81 So.2d 829), is that the law neither requires nor envisions that an employee in Civil Service, who has voluntarily resigned his position, be given notice of any sort of the acceptance of the resignation and of his removal from the payroll. And I further pointed out in that dissent that the statement to the contrary contained in the prevailing opinion should be corrected by a per curiam or that a rehearing be granted.

I cannot regard that expression of opinion (which the Court refused to correct by per curiam) as the law of this case as it was unnecessary to the issue presented to the Court on the first hearing. The case on that hearing came to us from a judgment of the Commission sustaining an exception of no right of action filed by the Department on the ground that, since Mrs. Day had allowed more than 30 days to elapse between the time of the alleged deprivation of her rights (removal from the payroll) and the date of her demand for a hearing, her application was too late under Rule 13.2 of the Commission. Since Mrs. Day was claiming that she had been unlawfully removed from the payroll and since the Constitution, Article 14, Section 15 (N)- (1), requires that no permanent Civil Service employee shall be demoted, dismissed or discriminated against except for cause expressed in writing, the Court correctly found that Mrs. Day’s appeal to the Civil Service Commission was not too late as more than 30 days had not elapsed from the date on which she had received, through her attorney, written notification of her separation from the Service some several months prior thereto. But there was no occasion for the Court to decide that a resignation of an employee must be accepted in writing and the ruling to that effect was, in my opinion, purely obiter dicta which was not binding on the Civil Service Commission in its determination of the case on its merits. See Acosta v. Nunez, 203 La. 275, 13 So.2d 860. Upon trial of the merits of the case, the real issue for decision was whether Mrs. Day had been unlawfully removed from office, as she contended or whether she voluntarily resigned, as asserted by the Department of Institutions. This issue was purely one of fact which the Civil Service Commission determined adversely to Mrs. Day and its judgment on that question was not subject to review by this Court, as we found in our original opinion on this appeal.

Since there is no requirement, either in the Civil Service law or in the rules adopted by the Civil Service Commission that a voluntary resignation by a permanent employee be accepted in writing in order for it to become effective and since the Civil Service Commission has resolved the disputed issue of fact as to Mrs. Day’s resignation in favor of the Department of Institutions, I think its judgment should be affirmed.

      . The writer of this opinion only concurred in the decree in that case, which announced the rule of law controlling here. See 228 La. 113. 81 So.2d 828.

      . The record also shows that a copy of this letter was mailed to the director of the Department of State Civil Service.

      . On this point Mrs. Day testified that she had resigned before the effective date by telephoning the Chairman of the East Baton Kouge Executive Committee; the testimony of Mr. Doiron, Chairman of that Committee, sought to be introduced to corroborate her statement, was excluded as being irrelevant on this trial of exceptions. See footnote No. 3 of the original opinion.

      . That letter, addressed to Mrs. Day’s attorney by her employer, the Director of the Department of Institutions, stated:
      “Your letter of January 21 has just been received suggesting that the best solution to Mrs. Lelia M. Day’s problem in your judgment is ‘to return Mrs. Day to her employment with the Department of Institutions.’
      “May I say, Dick, I do not believe that I in the circumstances should engage in a discussion of the merits of Mrs. Day’s claims and statements. These, I am confident, will properly be handled by responsible authorities and at that time I shall be happy to present facts not set forth in your letter. It is rather unfortunate in my judgment that Mrs. Day has committed herself to certain statements, and I can assure you that we at this end of the line because of our personal regard for Mrs. Day are going to do our best to see that nothing is said or done that will in the slighest reflect upon her.
      “The fact is that Mrs. Day resigned orally from her former position with us in spite of my personal protest and the protest of Mrs. Mclnnis in exactly the same manner she claims to have resigned from the East Baton Bouge Democratic Executive Committee. Eor the life of me, Dick, I just can’t understand her position that procedure which she claims is valid in one situation is not equally valid in another.
      “After her resignation, and under authority vested by the Constitution in the Director of the Department of Institutions to ‘transfer duties between positions,’ I merged all her former duties witn another already existing position. Since that time her former functions have been handled to my complete satisfaction at no additional expense to the State. This being true I cannot in good conscience recreate a job that no longer exists even though I have the warmest personal relationship to the former employee involved.
      “May I add, Dick, just this additional word. So far as I am aware Mrs. Day left here on exceedingly happy terms with everyone in our Department. All seemed to speak well of her and she and I, so far as I was aware, enjoyed a very happy personal relationship. Had she been persona non grata with us, or had there been any personal reason to dispense with her services, she could easily have been dropped, or her job abolished, prior to July T953 before Civil Service went into effect. That such was not done should speak eloquently to you of the fact that there is nothing whatever personal involved in our accepting her voluntary resignation from our Department effective last September 1, 1953.”

      . Paragraph (N) (8) of Section 15 of Article XIV of the Constitution of 1921 provides: “No person elected to public office shall, while serving in such elective office, be appointed to or hold any position in the Classified Service of the State or a city.” Mrs. Day testified that in view of this provision Dr. Grant, head of the Department of Institutions, advised her in the early part of June she would have to resign as a member of the East Baton Bouge Parish Democratic Executive Committee if she wished to retain her position with the department and that she immediately telephoned her oral resignation to the committee’s chairman, Mr. Bussell Doiron. It was for this reason that in filling out form “B” of the Civil Service Commission on June CO, 1953, entitled “Application for Qualifying Examination,” which had the effect of blanketing the then employees of the state into the Civil Service system, she answered in the negative the question: “Do you now hold an elective office?” (See Note No. 3 in the majority opinion when the first appeal was before this court, and also Note No. 1 in the dissenting opinion of the author of the instant decision when the former hearing was had in the instant appeal.)

      . It appears that while Mrs. Day was on leave of absence a member of the executive committee, on August 22 or 23, wrote to the Director of Personnel of the Civil Service Commission stating Mrs. Day was then a member of that committee. In reply to this letter the director, by a communication dated August 25 and again the next day, stated the de-partmont was endeavoring to contact Mrs. Day to ascertain if she had in fact resigned from the committee.

      . Although the personnel officer of the department testified that in conformity with the provisions of paragraph 8 of Bule XII of the Civil Service Commission she requested a letter of resignation from Mrs. Day, it is obvious this officer failed to comply with the provisions of the rule since she neither attached to the form showing change of status of the employe the letter of resignation nor explained the reason why such a letter was not furnished. This rule provides: “Voluntary Besignations. Whenever the services of a permanent employee are terminated by voluntary resignation, the appointing authority shall request the employee to submit a letter of resignation. A copy of this letter shall be attached to the personnel status change form. Where for any reason it is impossible or impracticable to secure the letter, the appointing authority shall explain in the personnel status change form the reason why the letter was not furnished.” (This rule was adopted by the commission on May 11, 1953, and was made effective as of July 1, 1953.)

      . Mrs. Day was never given a copy of this change of status form as it affected her and she was never given any notice of the department’s action in treating her as having resigned from the service.

      . The testimony of Mrs. Day that she reported to the office of Dr. Grant to go to work is not disputed; the only dispute is as to the date on which she appeared at that office. (See footnotes Nos. 4 and 5 of the decision when this case was first before the court.) She placed the date of this meeting as September 23, 1953, while Dr. Grant and the personnel director placed the date as the latter part of November, at which time, according to Dr. Grant, “She wanted to come baelc * * * and I said, ‘Well, that can’t be done because as a separate job that detail does not any longer exist. It has been taken care of within another job.” and assured her “we would use every influence we could to get her a job in another department doing the same thing she had done for us.” It is obvious, therefore, that Mrs. Day’s leave of absence was terminated not later than some time during the latter part of November 1953. (The emphasis has been supplied.)

      . Bule XIII, Section 13.2 provides: “A person who alleges ho has been deprived of his rights or otherwise discriminated against as set forth in the foregoing section may, within 30 days of any such action, demand a hearing by notifying the Director in writing that he desires a hearing and outlining in detail his reasons for demanding such hearing. The Commission shall grant the appellant a hearing within sixty (60) calendar days after receipt by the Director of such request, or shall refer the taking of testimony to a Beferee within such period of sixty (60) calendar days.” (This rule was repealed effective as of April 1, 1955, and a more comprehensive series of rules governing appeals and hearings enacted.)

      . Section 15 (I) of-Article XIV of the Constitution of 1921, as amended, provides : “There is vested in the State Civil Service Commission and in the appropriate City Civil Service Commissions for the several cities respectively the authority and power, after public notice and public hearing, to adopt, amend, repeal and enforce rules which shall have the effect of law, regulating employment, transfers, promotion, removal, qualifications, and other personnel matters and transactions * * (The emphasis has been supplied.)

      . In the Murtagh ease the court was called upon to determine, among other things, whether the relator, employed as a permit clerk by the City of New Orleans from 1925, had been blanketed into the city’s service as such when the civil service law became effective on January 1, 1943, with the result that he could not thereafter, on September 9, 1946, be removed from that service unless all formalities were complied with, although he was at the time the law became effective actually severed from the city’s payroll and engaged in doing outside defense work. The determination of this issue under the civil service law depended upon whether Murtagh had resigned, from the city’s service at the time he left in 1942, or was on an extended leave of absence which did not terminate until August 20, 1945. The lower court concluded he had been blanketed into the civil service since the city failed to produce Ms signed resignation or to offer evidence to overcome the presumption 'he never intended to resign, but was •merely leaving the city’s service temporarily during the period of the war, and ■that he must, therefore, be reinstated with full pay from the date of his illegal dismissal on September 9, 1946. This court upheld that ruling.

      In the Boucher case several employees of the state civil service were dismissed for cause that was given them in writing at 2:00 p. m. on the effective date of their removal from the state’s payroll, despite the fact that Section 2 of Bule XII of the Commission then in effect provided that in every case of removal the appointing authority or his 'authorized agent must furnish the employee and the Director of Personnel in advance of such action with a statement in writing giving the reasons therefor and also notify the employee of his right to appeal to the Civil Service Commission. In reversing and setting aside the ruling of the commission upholding such removal, this court pointed out that the Director of Personnel was not furnished with written notice of the contemplated action as required mvder this rule, although the appointing authority had discussed the matter with him; consequently, that the removal of employees was improper and illegal. In other words, that under the civil service rules knowledge of the Director of Personnel of removal of an employee from the public service was not sufficient, and there must be actual written notice. We accordingly voided the ruling of the commission approving the dismissal from service of these employees, as well as their removal from the payroll.

      . This provision reads: “If any Commission after any hearing orders a dismissed or suspended employee reinstated, it may reinstate such employee under such conditions as it deems proper and may order full pay for lost time.” (The emphasis has been supplied.)

      . “In order to make effective the removal of the subject employee from the payroll, the fact of the acceptance of her alleged oral resignation and of her removal from the payroll should have been-made known by a .statement in writing to her and to the Director in advance of' such action.”

      .This letter is quoted in full in footnote No. 2 of the dissenting opinion-when the case was originally heard on-this appeal. A mere reading of this letter clearly discloses it was never intend-ed as an acceptance of Mrs. Day’s resignation.

      . In this connection, I take cognizance of the provisions of paragraph 8 of Rule XII of the Civil Service Commission quoted in full in footnote No. 3 of the majority opinion on this rehearing. This rule, as I read it, is inapplicable to this case. Indeed, counsel for Mrs. Day have not Claimed that it has any pertinence here or that Mrs. Day should be reinstated because it has not been observed by the Department of Institutions. The rule requires that the appointing authority request the employee to submit a letter of resignation; that a copy thereof be attached to the personnel change form and that, if such a letter is not secured from the resigning employee, the appointing authority shall explain in the status change form the reason why it is not furnished. Obviously, the rule was enacted in the interest of the administration of the Civil Service law; its violation, in my opinion, has no effect on the legality of a voluntary resignation.


author: FOURNET, Chief Justice.

text:
    231 La. 807
    STATE of Louisiana v. Ed CLARK.
    No. 43131.
    Supreme Court of Louisiana.
    Jan. 21, 1957.

      Philo Coco, Earl Edwards, Marksville, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Charles A. Riddle, Jr., Dist. Atty., Marksville, for appellee.
   FOURNET, Chief Justice.

The defendant, Ed Clark, is appealing for the second time from his conviction and sentence on an indictment charging him with the crime of manslaughter in that he killed one Willie Pierce. When the case was first before us we annulled and set aside the conviction and sentence, and remanded the case for a new trial, on the ground that two statements of the defendant, one made under oath at the Coroner’s inquest and the other made in the office of the Sheriff on the day of the killing, were either confessions or admissions involving inculpatory facts and were improperly admitted since the State had failed to show, prior to their introduction in evidence, that they had been freely and voluntarily made in accordance with Article 451 of the Code of Criminal Procedure, LSA-R.S. 15:451. See 228 La. 899, 84 So.2d 452.

In the course of the trial on the remand, after the jury had been duly impaneled and sworn and the indictment read to the accused, the District Attorney in his opening statement explained the nature of the charge and the evidence by which he expected to establish the guilt of the accused, including the two statements or confessions made by the defendant. The first bill relied on was reserved to the trial judge’s refusal to instruct the jury to disregard the statement by the District Attorney in his opening statement referring to the prior conviction of this-defendant on this same charge.

Article 333 of the Code of Criminal Procedure makes it the mandatory-duty of the District Attorney in all cases-tried by jury to make an opening statement to the jury “explaining the nature-of the charge and the evidence by which he expects to establish the same.” LSA-R.S. 15:333; State v. Barton, 207 La. 820, 22 So.2d 183; State v. Ricks, 170 La. 507, 128 So. 293; State v. Nahoum, 172 La. 83, 133 So. 370; State v. Ducre, 173 La. 438, 137 So. 745; State v. Silsby, 176 La. 727, 146 So. 684; State v. Elmore, 177 La. 877, 149 So. 507; State v. Garrity, 178 La. 541, 152 So. 77; State v. Bishop, 179 La. 378, 154 So. 30; State v. Sharbino, 194 La. 709, 194 So. 756. The scope and extent of an opening statement is within, the control of the trial fudge in the exercise of a wise discretion, and a conviction. zuill not he set aside for error therein unless the rights of an accused are plainly-violated. State v. Tullos, 190 La. 184, 182 So. 321; State v. Shuff, 198 La. 67, 3 So. 2d 278; State v. Barton, supra; State v. Poe, 214 La. 606, 38 So.2d 359. That the opening statement forms no part of the evidence is obvious, since it must be made “prior to the introduction of evidence,” State v. Daleo, 179 La. 516, 521, 154 So. 437, 438, and, as pointed out in the case of State v. Ricks, supra [170 La. 507, 128 So. 294], quoting with approval from the case of People v. Van Zile, 73 Hun 534, 26 N.Y.S. 390, 393, “* * * ‘What is said in an opening [statement] has no binding force, and it is designed only to give a general acquaintance with the case, to enable the jury to understand and appre•ciate the testimony as it falls from the lips of the witnesses.’ ” See, also, State v. Crittenden, 218 La. 333, 49 So.2d 418; Stanley v. State, 174 Ark. 743, 297 S.W. 826.

Under the express provisions of the Code of Criminal Procedure, Section .515, LSA-R.S. 15:515, the courts are directed on the retrial to conduct the case “with as little prejudice to either party •as if it had never been tried.” This' Court has on several occasions held that where a new trial is granted following á conviction' of a lesser crime than charged, on the retrial not only is it proper but it is necessary for the prosecuting attorney in his opening statement to so inform the .jury in order to properly apprise it of the issue to be decided; the conviction of a lesser crime than charged, under our jurisprudence, amounts to an acquittal of the greater offense, and of necessity on retrial the accused can only be tried for the lesser offense. State v. Crittenden, 218 La. 333, 49 So.2d 418; State v. Smith, 49 La.Ann. 1515, 22 So. 882; Stanley v. State, 174 Ark. 743, 297 S.W. 826.

We readily agree it would be a ’better practice for the trial judge in cases similar to the one at bar to promptly instruct the jury to disregard a reference to .a prior trial and conviction, and inform it that a man is not tried on an opening ■statement and that no part of it is evi•dence. However, the defendant has failed to show us in what respect his rights have been violated or his cause prejudiced, and we can think of none. It is well settled that where the evidence, or a part thereof, by which the district attorney intends to prove the charge against the defendant is the latter’s confession, the district attorney must so declare in his opening statement; State v. Garrity, 178 La. 541, 152 So. 77; State v. Johnson, 198 La. 195, 3 So.2d 556; State v. Hutton, 198 La. 174, 3 So.2d 549; otherwise, the confession cannot be used or referred to in presenting the State’s evidence against the accused; State v. Ward, 187 La. 585, 175 So. 69. From a reading of the District Attorney’s opening statement in its entirety it is evident that he was explaining that he intended to introduce in evidence the two statements which this Court had held to involve the existence of criminal intent or inculpatory facts, and we are in accord with the views of the trial judge that the passing reference in good faith by the District Attorney to the prior conviction did not prejudice the cause of the accused. Moreover, it is difficult for us to understand how under the circumstances this information could have been kept from the jury; not only had the indictment been read to the jury, it had been presented to it, with a notation on the back that the defendant had been found guilty as charged — and the defendant offered no objection at the time.

A perusal of the decision of this Court in the case of State v. Holmes, 224 La. 941, 71 So.2d 335, 336, will readily disclose that it does not help the defendant’s cause. In that case the defendant complained of a statement made by the District Attorney in his closing argument, i. e., “The case has been tried one time before and the man was found guilty and it went to the Supreme Court,” and while defendant’s counsel may derive solace from some of the language used in the opinion, it still remains that the Court recognized that the ruling of the trial judge was not erroneous since the facts concerning the former trial and its results had been admitted in evidence without objection, and therefore it was well within the prerogative of the District Attorney to comment thereon in his argument. In the course of its opinion the Court very aptly observed: “ * * * he [the prosecuting attorney] merely told the jury that the fact that this court had reversed the former conviction was not to he considered as evidence of appellant’s innocence because this court does not pass on questions of fact but only on matters of law. The plain purpose of this argument was to counteract any favorable inferences which might have been drawn by the jury from this Court’s reversal of the former conviction. * * * ” 224 La. at page 947, 71 So.2d at page 337.

The next bill of exception is based on the trial judge’s refusal to give eight special charges, filed timely and in writing — the refusal being on the ground, as stated by the trial judge in his Per Curiam, that those charges which were not immaterial or inapplicable to the case at bar were fully covered in the general charge.

Under the law, the trial judge is required to give every requested charge, when timely presented and in writing, "that is wholly correct and wholly pertinent, unless the matter contained in such charge have been already given, or unless such charge require qualification, limitation or explanation.” Article 390 of the Code of Criminal Procedure, LS A-R.S. 15:390; State v. Dooley, 208 La. 203, 23 So.2d 46. It is apparent from a mere reading of the requested charges, reproduced in full in footnote 1, that some are not wholly correct, others would require either some qualification, limitation or explanation, or were not pertinent; and as a whole we think would tend to confuse rather than enlighten the jury. Besides, the subject matter covered by the requested charges was succinctly and fully covered in the trial judge’s general charge.

The last bill of exception relied on by the accused was reserved by the defendant when the trial judge refused to grant his motion for a new trial, raising for the first time the objection that one of the jurors, Albert Daigrepont, who was selected to deliberate in this cause, was not qualified, in that there was an affidavit filed against him in 1948, and still pending at the time, accusing him of the offense of aggravated battery, though of these facts counsel claimed ignorance until after conclusion of the trial — the witness having denied, when specifically interrogated by the Court on that phase of his qualification, that there were any charges pending against him.

In order for the defendant to avail himself at that late date of the incompetence of the juror it was essential that he prove that the cause for disqualification was unknown to him and his counsel until after verdict, and the juror must have been questioned on his voir dire by defendant’s counsel as to whether he had any charges pending against him, and must have answered in the negative. See State v. Nash, 45 La.Ann. 1137, 1145, 13 So. 732, 734. The fact that the question was propounded by the judge will not suffice. State v. Bryan, 175 La. 422, at page 444, 143 So. 362; State v. Futch, 216 La. 857, 44 So.2d 892.

The record shows that counsel for the defendant was district attorney at the time the alleged charges were filed; that no indictment was ever returned or information filed; that the district attorney had informed Daigrepont that there was nothing to the charge; also, that the charge had been filed in the Clerk of Court’s office and was available to counsel; that the name of this prospective juror was on the regular venire for the week of the trial, and a copy of that venire was furnished to defendant’s counsel in advance of trial. Moreover, we are constrained to believe that the defendant’s counsel did know or should have known of the disqualification of the juror before accepting him; and by failing to object before swearing the jury, he waived his right, and cannot thereafter raise that point. In any event, as pointed out by the trial judge in his Per Curiam, the defendant was not prejudiced by the selection of this juror, but, on the contrary, this juror was one of the two who voted “Not Guilty,” and under Articles 508 and 557 of the Code of Criminal Procedure, LSA-R.S. 15:508 and 15 :557, he is not entitled to a new trial, no injustice or prejudice being shown in this case.

For the reasons assigned the conviction and sentence are affirmed.

      . These were: “1. If you feel, after considering the evidence, that the conduct of the accused was justifiable, even though criminal, it is your sworn duty to find him not guilty.
      “2. If you believe, from the evidence, that the accused killed Willie Pierce, because he believed that he himself was about to be killed or about to receive great bodily harm, at the hands of the deceased, it is likewise your sworn duty to find him not guilty.
      “3. A man has a right to kill another, in self defense, if he reasonably believed he is in imminent danger of losing his life or of receiving great bodily harm from such other person. Therefore, if you find that the accused acted under such belief, you should find him not guilty.
      “4. If you find that the accused did not intend to kill Willie Pierce or to inflict great bodily harm upon him, you should find him not guilty, unless the evidence convinces you, beyond a reasonable doubt, that he killed him while committing or attempting to commit a felony or intentional misdemeanor toward the person of the deceased.
      “5. If you find that the accused killed Willie Pierce through his negligent conduct, only, having had no intention to kill him or to inflict great bodily harm upon him, he should not be found guilty of the crime charged. In such a case he would be answerable under another statute, that of negligent homicide.
      ‘‘6. If you are not satisfied beyond a reasonable doubt, that the blows inflicted upon the decedent by the accused, were the cause of the death of Willie Pierce, you should find the accused not guilty.
      “7. If you believe that Willie Pierce died of heart failure brought about by the vigorous physical encounter or fight between him and the accused or by excessive intoxication, your verdict should be that of not guilty.
      “8. If you find or believe that the accused was so intoxicated at the time that Willie Pierce was killed, that he had no criminal intent to kill him or to inflict great bodily injury upon Mm, then you should find him not guilty.”

      . “The motion for a new trial is based upon the supposition that injustice has been done the accused, and, unless such is shown to have been the case, the application shall be denied, no matter upon what allegations grounded.” LSA-R.S. 15:508.
      “No judgment shall be set aside, or a new trial granted by any appellate court of this state, in any criminal case, on the grounds of misdirection of the jury or the improper admission or rejection of evidence, or as to error of any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.” LSA-R.S. 15:557.


author: HARDY, Judge. AYRES, Judge.

text:
    John W. IRWIN, Plaintiff-Appellee, v. James L. McGEE et al., Defendants-Appellants.
    No. 8558.
    Court of Appeal of Louisiana. Second Circuit.
    Oct. 25, 1956.
    On Rehearing Feb. 5, 1957.

      Jackson, Smith, Mayer & Kennedy, Shreveport, for appellants.
    Plarvey L. Carey, Shreveport, for appel-lee.
   HARDY, Judge.

Plaintiff brought this suit for the recovery of damages to his automobile, which was totally wrecked as the result of a collision with a car driven by defendant, Irwin. Plaintiff’s automobile was legally parked on Fairfield Avenue at the time of the collision. The owner and driver of the offending vehicle, together with his insurer, were made ■ party defendants. A trial by jury resulted in a verdict in favor of plaintiff in the principal sum of $430, and from the judgment signed in accordance with said verdict the defendants have appealed.

On May 4, 1956 defendants filed an amended answer in which they admitted liability for a principal sum not in excess of $350, and in connection with which pleading they deposited in the Registry of the Court the amount of $395.71 to cover the full amount of their admitted liability, together with interest and costs.

It is thus to be observed that the amount in dispute as of the date of the judgment is represented by the difference between the award of $430 in favor of plaintiff and the admitted liability of $350 which was deposited in the Registry of the Court by these defendants. The appellate jurisdiction of this court embraces only those cases in which the amount involved exceeds $100 and in which district courts have concurrent jurisdiction. Constitution of Louisiana, Article VII, Section 29-LSA. Inasmuch as the amount involved in this appeal has been fixed by the respective contentions of the parties litigant in the sum of $80, it follows that this court does not have jurisdiction of the appeal.

Accordingly, it is ordered, adjudged and decreed that the appeal be and it is hereby dismissed at appellant’s cost.

On Rehearing

AYRES, Judge.

On reconsideration of the question of jurisdiction under appellants’ application for rehearing, we have concluded we erred in calculating the amount in dispute and in dismissing the appeal for want of jurisdiction. Jurisdiction on appeal, so far as it is dependent upon the amount or value in contest, is determined by the amount in contest or in dispute at the time the case is finally submitted for decision in the court of original jurisdiction. Wolf v. Thomas, 137 La. 833, 69 So. 269; Tremont Lumber Co. v. Talbot, 140 La. 887, 74 So. 183; Crawford, Jenkins & Booth v. Fisher, 144 La. 129, 80 So. 224; Norwood v. Lake Bisteneau Oil Co., 145 La. 823, 83 So. 25; Crowell & Spencer Lumber Co. v. Lynch, 157 La. 21, 101 So. 797; Chickasaw Wood Products Co. v. Vail-Donaldson Co., 173 La. 59, 136 So. 87; State v. Cook, 197 La. 1027, 3 So.2d 114; Ledet v. Rodgers, 220 La. 650, 57 So.2d 217; Jackson v. Perkins, 221 La. 525, 59 So.2d 708.

The amount herein in dispute at the time the matter was submitted to the trial court for decision, exclusive of interest and costs, was the difference between the amount claimed of $540 and the principal sum admitted to be due and tendered by the defendants of $350, or the sum of $190. Therefore, under the provisions of Art. 7, Sec. 29, of the Louisiana Constitution of 1921, as amended, LSA, this court has jurisdiction of the appeal.

On the Merits

This action involves an automobile collision in the City of Shreveport on December 18, 1954. On that date plaintiff parked his 1947 model Pontiac 4-door sedan at 2124 Fairfield Avenue. Upon returning, he failed to find his car and notified the police of his loss. After an investigation during the next three or four days, plaintiff learned that the defendant, McGee, had driven into the rear of plaintiff’s car, knocking it over the curb and into a tree, demolishing both cars, which were carted off to a junk yard. Plaintiff claimed of the defendant and his insurer the sum of $450 for the value of his car, $40 storage and $50 as rental at $5 per day for a period of 10 days on a replacement vehicle.

The defendant, McGee, and his insurer in their original answer admitted the accident but denied liability. In a supplemental answer, liability was admitted to the extent of $350 and tendered into court $395.-71, which amount evidently included interest and costs accrued to the date of tender. Therefore, since there was an admission of negligence constituting the proximate cause of the accident, the only issue is one of quantum. The case was tried by a jury, which rendered a verdict in plaintiff’s favor against both defendants, in solido, for $430.

Three witnesses testified for plaintiff. Bob French and Edward L. Williams, two used car dealers, testified that the car was worth $495. Robert H. Snell, who had considerable experience in adjusting automobile losses, testified the car was worth from $450 to $500. Three used car dealers testified for defendants. Richard R. Nolen testified the car was worth $295, which valuation was based upon a listing of the average value of cars for the month of December, 1954, in so-called official used car guides, entitled “N. A. D. A.” and “Red Book”. Wade Swearingen likewise testified the car was worth from $250 to $300, and Milton T.owbridge was of the opinion the car was worth only $300 but that $350 would be the maximum value. Defendants’ witnesses based their opinions, since they were not familiar with the car in question, primarily upon the average values of the cars listed in the aforesaid publications. The other witnesses, while they used these books for certain purposes, such as for loan values, did not put too much faith in the listings as to car valuations. These publications, as we appreciate the evidence, pertain to the average value of the average car of particular makes and models. These publications, in our opinion, have little, if any, value in the appraisal of a particular automobile, the value of which may depend upon many facts and circumstances, such as the mileage that it has been driven, the manner in which it is driven and the care taken. The record reveals that plaintiff was a very careful driver; that he put very few miles on his car; that he kept it in good mechanical condition, and that, while he had used his car seven years, it had been used only to a limited extent, and had only occasionally been driven further from the City than Cross Lake. As evidence of the care usually taken by plaintiff of his cars, the record shows that a previous car owned by him was operated over a period of 14 years.

The jury heard the witnesses, considered their testimony and all the surrounding facts and circumstances. Its award was approved by the trial judge. From our appreciation of the record, we find no manifest error in the assessment of damages.

Accordingly, the judgment should be, and it is hereby, affirmed at appellants’ cost.

Affirmed.


text:
    231 La. 820
    BATON ROUGE GENERAL HOSPITAL v. SUPERIOR CLEANERS et al.
    No. 42754.
    Supreme Court of Louisiana.
    Dec. 10, 1956.
    Rehearing Denied Jan. 21, 1957.

      Spedale & Conway, Baton Rouge, for defendants-appellants.
    Watson, Blanche, Wilson, Posner & Thi-baut, Baton Rouge, for plaintiff-appellee.
   FOURNET, Chief Justice.

The plaintiff, Baton Rouge General Hospital, alleging that the defendant partnership and the individuals composing it were indebted in solido for treatment rendered by the hospital to their employee, Miss Dot Carlisle, a patient from February 2nd to August 30, 1951 — said hospital services having been allegedly rendered at the written request of Superior Cleaners and in reliance upon the undertaking of defendants to be responsible for the costs by virtue of having signed a “Request for Services from the Baton Rouge General Hospital”— sought judgment against defendants for $4,498.65, plus interest from August 30, 1951, and costs. Exceptions of no cause and no right of action were referred to the merits, following which defendants answered, admitting that one of the partners signed the “Request for Services” but otherwise denying liability. Trial on the merits resulted in judgment for the plaintiff, against the partnership and individually and jointly against the two partners (each for half), for the amount due for services to August 1, 1951, totaling $4,048.75; and defendants have appealed.

The undisputed facts are that on the 2nd of February, 1951, Miss Carlisle, while pursuing her duties as an employee at the cleaning establishment owned and operated by the defendants, paused with her back to a gas-burning heater in order to get warm; her clothing ignited and flamed, and garments below the waist were quickly consumed; she was wrapped in a blanket and Sam Maggio, Jr., one of the partners, ordered the operator to summon an ambulance. Miss Carlisle wa9 accompanied in the ambulance by Mrs. Doris Maggio, wife of Ross Maggio, the other partner; and upon arrival at the plaintiff hospital was taken to the emergency room. Mrs. Maggio was directed to the admitting office, and while there Mr. Sam Maggio arrived. Together they supplied the information requested by Mrs. Ferguson, the admitting clerk, who wrote their answers in long hand in the spaces provided on the hospital’s admission forms, one being a form headed “Request for Services.” That document was handed to Mr. Sam Maggio for signature and he signed “Superior Cleaners,” below which he wrote “Sam Maggio, Jr., 3266 Plank Rd., B.R. I^a.” (The emphasis is ours in all italicized quotations herein.) Compensation insurance was carried in the name of the firm and to the extent of its liability under the law — at that time, $500 for medical, surgical and hospital services. The local agent for the insurance company was then advised of the accident. At the time the severity of Miss Carlisle’s injuries was not known. The patient, throughout her hospitalization, was attended by Dr. Joseph Sabatier. He was not employed by the defendants and was apparently called into the case because he happened to be present in the emergency room when she was brought in. No bills were sent by plaintiff to defendant Superior Cleaners or to either partner until August, 1951; it was then for the first time that a simple statement, dated August 1, 1951, on the plaintiff’s billhead, was addressed to “Mr. Sam Maggio, Jr., Superior Cleaners,” with notation “Account of Miss Dot Carlisle” and the words “Hospital account Feb. 2, 1951 to July 31 * * $4,048.75.” It appears also that less than three weeks after the patient had entered the hospital a letter dated February 20, 1951, from the New Amsterdam Casualty Company, which carried compensation insurance for the defendant firm, was received by the plaintiff advising that in view of the limited medical coverage in the compensation insurance carried by it for Superior Cleaners and the fact that Miss Carlisle’s bills would probably exceed that limitation, they would have to withhold payment until the total due could be ascertained in order that the amount might be prorated. This information was communicated to Mr. Sam Maggio in a telephone call from an employee of the hospital.

The plaintiff’s action is based on the document reproduced below and marked P-1 for identification.

It is contended that by signing the “Request for Service”' form on a line following the words “Person Responsible,” Mr. Sam Maggio, Jr., made the defendants responsible for payment of all bills accruing because of services rendered Miss Carlisle; •and that such responsibility was further brought to Mr. Maggio’s attention in a telephone call from the plaintiff’s office manager, Mr. Huckabay, following receipt •of the letter from New Amsterdam advising of the $500 limitation, at which time, it is claimed, the manager reminded Mr. Maggio that he had signed the “Request” and told him that the hospital was looking to him for payment — to which Mr. Maggio made no protest; and that the first time liability was denied by defendants was upon receipt of the bill dated August 1, 1951.

The defendants, on the other hand, deny •emphatically that by signing the “Request”' form Mr. Maggio intended that the partnership or the partners should assume obligation for the payment of services rendered Miss Carlisle, and that .he signed as he did because it was Superior Cleaners which was covered by insurance. It is the contention of defendants that Sam Maggio ■signed a routine admittance form provided by the hospital, upon request of the clerk •after she had entered the information supplied by him and Mrs. Maggio; that no representation was made regarding assumption of financial responsibility either then or at any later time. Mr. Maggio’s version of the telephone conversation with ■“someone” at the hospital is that he was asked to whom the bill should be sent, and he “told them to get in touch with Hearin, Collins and Mclnnis,” his insurance agents, stating to the person that he “had coverage as far as the law was concerned.”

In upholding the plaintiff’s version of what transpired the trial judge expressed the view that the purpose of the document relied on was to admit the injured patient to the plaintiff’s hospital for services on the financial responsibility of the signer, and that Mr. Maggio so understood it. The Court found, however, that the defendants did revoke their obligation to pay following receipt of the statement of August 1, 1951, and therefore recovery was limited to the amount due up to that .-time, or $4,048.75.

We note that while the trial judge, in giving his reasons, stated “To my mind the form executed by Mr. Maggio has only one significance, which I think would appeal to any reasonable, intelligent person,” it is apt to observe that the record discloses that when defense counsel objected to parol testimony sought to be offered by plaintiff to show that Sam Maggio had received an explanation of “what he was signing,” the Court overruled the objection “for-the reason that the document is', so ambiguous it woxild admit of oral testimony in explanai-. tio'n of it" . ' .

The only witness offered by the plaintiff to prove its case was Mrs. Elva Ferguson, now employed at the hospital in a different capacity but at the time acting as clerk in the admitting office. Although she testified that Sam Maggio was given the document to check the method of payment and to sign it — which he did — from a careful examination of the exhibit marked P-1 and a perusal of the entire record we are convinced that the form was filled in its entirety by Mrs. Ferguson, including the check mark next to the words “On Receipt of Service” in the section headed “Method of Payment,” and was then handed to Mr. Maggio for his signature at the spot indicated by the cross mark. The witness, on being asked what was meant, “from the standpoint of, the hospital,” by the phrase “On receipt of service,” stated that it meant “at the time that the patient is discharged from the hospital;” yet such meaning is clearly not self-evident and there was no attempt to prove that Mr. Maggio was put on notice. Moreover, such arrangement for payment was clearly unlikely in view of the fact (as brought out in Mrs. Ferguson’s testimony) that it was impossible, upon a patient’s admission as an emergency, to know the length of his stay, and the witness was unable to explain why such method of payment would have been made available in a case like this where the signer supposedly was undertaking without qualification to make himself financially responsible for all bills, no matter what the duration of the patient’s treatment. Mrs. Ferguson admitted that under present practice the hospital expects financial arrangements to be made for weekly payments.

It is equally clear that the defendant Sam Maggio, by signing the form as he did, never intended that the defendants should assume any further responsibility for the employee’s injuries than those attaching through the legal obligation, for which the firm carried compensation insurance with the New Amsterdam Casualty Company. Sam Maggio’s testimony was unequivocally to that effect and in this respect he was not only corroborated by his sister-in-law, who was present, but we think, was supported by the testimony of Mrs. Ferguson herself. She testified that the forms completed were “routine admission forms,” and when asked who furnished the information replied, “Well, I don’t remember exactly which one gave the information, it was routine information as to the name and age and address and religion and so forth and I do not remember which one, possibly both.” She admitted there was no discussion had with respect to financial arrangements, and when she was first asked the question, “Did you explain to him what it was he was signing?” answered “I think I did.” It is significant that this witness also testified: “If Mr. Maggio had not signed the form at that time he or some person would have been contacted to have signed, to have given the information for insurance

It is fundamental that no contract is complete “without the consent of both parties * * Louisiana Civil Code, Article 1766; “the will of both parties must unite on the same point,” Article 1798, and in interpreting contracts “it is the common intent of the parties — that is, the intention of all — that is to be sought for; if there was a difference in this intent, there was no common consent and, consequently, no. contract.” Article 1945. See, also, Articles 1779, 1780 and 1797.

While the office manager, Mr. Huckabay, when called under cross examination, did testify positively that upon receipt of the letter from the insurance company he promptly called Sam Maggio, at which time he not only apprised Maggio of the contents of the letter with its limitations but also advised that they were looking to him for payment “because he had signed our ‘Request for Services’ as being the party responsible for the payment of the bill,” and that Maggio did not deny his responsibility, that portion of the conversation is flatly contradicted by Sam Maggio.

To say the least, the plaintiff failed to establish its claim; in fact, we think that the evidence preponderates in favor of the defendant’s contention, for we note in Mr. Huckabay’s testimony he admits that in his conversation with Sam Maggio “He did not make a promise to pay,” and also admitted that if Mr. Maggio had denied liability, Miss Carlisle “would have gotten the same services she did get. There would have been no change in them. * * * people in the business office or any other part of the hospital can have no effect on the service that a patient gets. That’s strictly left up to the doctors. The patient is discharged when the doctor says she is discharged, and she is transferred to another hospital when he says she is to be transferred. We have nothing to say about that.” It is significant that he also admitted “this case was being handled in a different manner,” and that it had been discussed by them in the credit office. This admission, when considered in the light of Dr. Joseph Sabatier’s statement, which appears in the record, is also persuasive as showing that the plaintiff was not in fact relying on th? defendants’ financial responsibility. Dr.. Sabatier stated that there were several conversations with regard to having the patient transported to Charity Hospital in New Orleans but no definite decision was ever made; that while she could have been moved without serious threat to her life some six weeks after admission, yet “if she had been moved at any time during her hospitalization, it would have been inimical to her welfare.” In addition to all of this is the unusual circumstance that defendants were never presented with a bill until the one dated August 1, 1951, at which time the charges had mounted to more than $4,000; and to add to the inconsistencies, this was not for payment “On receipt of services” according to the hospital’s interpretation, since Miss Carlisle remained a patient there for one month longer, having been discharged on August 30, when the charges for services had amounted to ■$4,498.65, the sum sought to be recovered in this suit.

For the reasons assigned, the judgment of the lower court is reversed and set aside, and the plaintiff’s suit is dismissed at its cost.

HAWTHORNE, J., absent.

      . The defendant Superior Cleaners, a cleaning and pressing establishment, is an ordinary partnership composed of Ross Maggio and Ms brother, Sam Mag-gio, Jr., and is located in Baton Rouge, La.

      . The subject matter of that conversation is one of the controversial points of this case.

      . The plaintiff hospital sought to justify its failure to send periodic statements during the six months which elapsed between February 2 and August 1 by the explanation that the “Request for Services” form was checked to indicate that payment would be made on “receipt of service,” meaning payment at the time the patient is discharged.


author: McBRIDE, Judge.

text:
    STANDARD CASUALTY COMPANY and Clinton Green, v. Solomon POLLARD.
    No. 20841.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.
    John E. Jackson, Baldwin J. Allen and John E. Jackson, Jr., New Orleans, for defendant and appellant.
    Rittenberg, Weinstein & Bronfin, New Orleans, for plaintiffs and appellees.
   McBRIDE, Judge.

This appeal involves a collision between two automobiles which occurred on June 5, 1955, at 9:15 p. m. at Monticello Avenue and Jefferson Highway in Jefferson Parish. One of the automobiles was owned and driven by Clinton Green, and he and his insurer-subrogee sue Solomon Pollard, the owner and driver of the other car, for the amount of $122.44, representing the damages sustained by Green’s automobile. There was judgment rendered below in favor of plaintiffs as prayed for and defendant has taken this appeal.

The defendant, Pollard, was driving his Jeep station wagon on Monticello Avenue in a direction away from the Mississippi River and ran into the middle of the right side of Green’s automobile causing the damage complained of. There can be no doubt Pollard was negligent as the evidence shows clearly that he was speeding and' failed to stop in obedience to a traffic sign which confronted him as he approached Jefferson Highway. This sign, located to his right on Monticello Avenue, was set back a dis- . tance of about 25 feet from Jefferson Highway.

In his answer Pollai-d alleges Green drove directly into the path of his car and that in doing so Green was guilty of negligence which contributed to the accident, and this plea of contributory negligence is the sole issue the appeal presents.

On the lefthand side of Monticello Avenue there is a large portion of blacktopped ground which is reserved for parking the automobiles of patrons of a business establishment located there. This parking space is bounded by Jefferson Highway as well as by Monticello Avenue.

Prior to the accident Green had been parked in this lot. He attempted to depart therefrom by making exit via a driveway, delineated by white stripes, which runs diagonally across the parking grounds and reaches Monticello Avenue at a point about where Monticello Avenue meets Jefferson Highway. It is necessary for a motorist leaving the parking grounds by such route to make a slight left turn on Monticello Avenue in order to get onto Jefferson Pligh-way.

The accident happened just as Green had emerged from the driveway but before he attempted to turn left into the highway. He claims his car was stopped when the crash came. He admits when he wás emerging from the driveway he saw :Pollard’s automobile on Monticello Avenue coming at a high rate of speed, but he says, it was 75 feet away and he thought it safe to drive into Monticello Avenue because he expected Pollard to bring his vehicle to a stop in compliance with the traffic sign.

Barnes, who was Green’s passenger, states he saw Pollard’s automobile and “he was coming at a pretty fast rate of speed considering there was a stop sign at the corner.” Barnes contradicts Green’s statement that his automobile was stopped by stating that Green’s car was rolling “rather slow” and was hit just as it made entry into Monticello Avenue. Barnes also said: “I saw this car coming but it was so close on us I thought he was going to observe that stop sign and stop. There was nothing Green could do, go forward or backward because he was coming at a pretty fast rate of speed.”

Considering Green’s testimony and that of his witness, we unhesitatingly reach the conclusion that Green was guilty of contributory negligence. It appears from Barnes’ statements that Pollard’s automobile was much closer to the driveway than Green admits it was when he first saw it, and we think he should have known because of its fast rate of speed that its driver could not or did not intend to stop for the traffic sign. Had Green been the least bit cautious he could have avoided an accident.

When he saw or should have seen that Pollard was so close and was traveling at such speed that he could not stop, Green had no right to indulge in the assumption that a stop would be made.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered, adjudged and decreed that plaintiffs’ suit is dismissed at their cost in both courts.

Reversed.