author: BAILES, Judge Pro Tem.

text:
    Paul A. NEWELL et al. v. ZURICH INSURANCE COMPANY.
    No. 10542.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    John B. Noland, Baton Rouge, for appellants.
    David W. Robinson, Baton Rouge, for appellee.
    Before SARTAIN, J., and BAILES and PICKETT, JJ. Pro Tem.
   BAILES, Judge Pro Tem.

Plaintiff-appellant, individually and as administrator of the estate of his minor son, appeals the judgment of the district court rejecting his demands for damages for personal injuries received by his minor son and for the medical expenses incurred in the treatment of such injuries. On our finding that the judgment of the court a quo is correct, we affirm.

This tort action arose on May 27, 1971, when David M. Newell, the son, slipped and fell while a guest at the Bellemont Motor Hotel in Baton Rouge, Louisiana. On that date, Newell was on a class trip to Baton Rouge and, shortly before the 9 p. m. curfew imposed by the chaperone, received permission to leave his room to get a cold drink from a vending machine. He was told to do so quickly so that he would not be out past 9 o’clock.

The cold drink machine was located in a building other than the one in which he was staying and to reach that place, it was necessary that he proceed part of the way under a covered walkway, cross an open parking lot driveway, and then again go under another covered sidewalk which lead to the machine’s location.

As young Newell left his room barefooted, it was raining and windy, as it had been throughout the day. Upon reaching the open driveway, he ran across it and began to enter the covered walkway on the other side, which was wet. On the edge of the sidewalk under the overhang was an area 6 feet wide by 14J4 feet long which had been covered with a non-skid substance as a demonstration area by a manufacturer’s factory representative.

Newell crossed the non-skid substance and, as he came off of it and on to the plain sidewalk, his bare feet slipped on the wet walkway and he flipped over backwards, sustaining severe injury to his mouth and several of his teeth.

The plaintiff, on behalf of his minor son, asserts failure on the part of the management of the motel to take proper precautionary measures to insure the safety of users of the walkway and seeks recovery from the Zurich Insurance Company as the liability insurer of Arthur C. Lewis, Jr., doing business as the Bellemont Motor Hotel.

Citing the annotation found in 69 A.L.R.2d 1107, that court determined that the duty which an innkeeper owed to persons using exterior passageways was not that of an insurer, but was one of reasonable care to keep in a reasonably safe condition the passageways and walks which guests are expected to use. Within that context, it found no duty on the part of the innkeeper to protect patrons from windblown rainwater on an outside walkway, which the court concluded did not increase the hazard of ordinary use. That decision made unnecessary an inquiry into any contributory negligence or assumption of the risk on the part of the plaintiff’s son.

As a basis for reversing the trial court’s judgment, the appellant urges upon us the recent decision by our Supreme Court in Kavlich v. Kramer, La., 315 So.2d 282. Therein the court held that once it is proven that a foreign object was on the aisle of a store and that a patron had slipped and fallen because of that object, the burden of proof then shifted to the defendant to exculpate itself from a presumption of negligent conduct, which the defendant was unable to do. That case is not, however, analogous to the case at bar.

Our courts have stated, on numerous occasions, the duties imposed on owners of public places of business regarding the safety of their premises. Representative of those statements is that found in Foggin v. General Guaranty Insurance Company, 250 La. 347, 195 So.2d 636 (1967), in which the Supreme Court said:

“ * * * ‘An invitee is a person who goes on the premises with the express or implied invitation of the occupant on the business of the latter or for their mutual advantage; and to him, the duty owed is that of reasonable and ordinary care, which includes the prior discovery of reasonably discoverable conditions of the premises that may be unreasonably dangerous, and correction thereof or a warning to the invitee of the danger.’ Alexander v. General Accident Fire and Life Assurance Corp., La.App., 98 So.2d 730. ‘The owner, occupant, or person in charge of property owes to an invitee * * * the duty of exercising reasonable or ordinary care for his safety and is liable for injury resulting from breach of such duty. This duty includes that of exercising reasonable care to keep the premises in a reasonably safe and suitable condition or of warning invitees * * * of hidden or concealed perils of which he knows or should know in the exercise of reasonable care, so that those whom he has invited to enter upon or use his property shall not be unnecessarily or unreasonably exposed to danger. * * * ’ Savell v. Foster, La.App., 149 So.2d 210.” (Emphasis supplied)

The rules set out in Kavlich, supra, had to do with the liability of storeowners to keep their aisles free from dangerous foreign matter and dealt specifically with a mishap caused by a piece of banana which caused the plaintiff to fall in the aisle of a convenience-type grocery store. The peril to the plaintiff there, however, is quite distinct from that found in this case.

In Kavlich, the court related, at length, the factors which attract a store patron’s eyes to the various displays at hand and away from the aisle on which they are walking, thus making such a customer unwary of foreign material in their path.

Here, however, the record indicates that anyone in Baton Rouge on the day of this accident would have been aware of the prevailing wind and rain. Unlike Kavlich, this is a readily observable circumstance which makes its presence known. A user of outside walkways is presumed to see what he should have seen and certainly the presence of water on the streets and sidewalks is obvious. As noted in Foggin, supra, the property owner is only charged with the responsibility of warning invitees of hidden or concealed perils of which he knows or should know. Those present agree that the water on the sidewalk where young Newell fell caused the area to be slippery. To conclude, however, that a landlord is under a duty to keep all of his outside walkways free from rainwater would impose an impossible burden. We hold, therefore, that where it is proven that an invitee falls in rainwater on an outside walkway, that a presumption of negligence on the part of the landowner does not exist. Further, we find no proof in this record of negligence on the part of the innkeeper. There is no evidence that the demonstration area which had been covered with an abrasive material had any causal relation with this accident. To the contrary, it seems that this unfortunate incident was only the result of David New-ell’s voluntary actions.

No discussion of the assumption of this risk on the part of David Newell is necessary. Clearly, however, one who runs on a wet sidewalk with bare feet assumes a known and well-understood danger. Pagitt Well Service, Inc. v. Sam Broussard, Inc., La.App., 293 So.2d 631 (3rd Cir. 1974). Such conduct on the part of plaintiff’s son would work to bar his recovery should any negligence have been found on the part of the innkeeper.

For the foregoing reasons the judgment appealed is affirmed at appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: PICKETT, Judge:

license: Public Domain

text:
    Paul CORDES, Sr., in his own behalf and for the use and benefit of the minor, Paul Cordes, Jr., Plaintiffs-Appellees, v. Greg CHATELLIER et al., Defendants-Appellants.
    No. 10535.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Robert A. Anderson, Jr., Covington, for Greg and Kelly Chatellier.
    Jeff Bratton, Covington, for Ronnie Fitzmorris.
    A. R. Christovich, Jr., New Orleans, for Fidelity & Cas. Co. of New York.
    Garic K. Barranger, Covington, for plaintif fs-appellees.
    Before SARTAIN, BAILES and PICKETT, JJ.
   PICKETT, Judge:

On the evening of December 25, 1971, Paul Cordes, Jr., a minor, was involved in an altercation at a party in Madisonville, Louisiana, and was injured. His father, Paul Cordes, Sr., instituted this suit individually to recover medical expenses and on behalf of his son to recover for the personal injuries.

The petition alleged that certain guests at the party, viz. Greg Chatellier, Ronnie Fitzmorris and Jessie James Jenkins, conspired and acted in concert to inflict the injuries upon Paul Cordes, Jr. Kelly Chatellier, father of the minor, Greg, was also joined and he filed a third party petition against Fidelity and Casualty Company of New York, his homeowner’s insurer. Plaintiff amended his petition to add the insurer as a defendant on the main demand.

The Trial Judge awarded Paul Cordes, Sr., special damages in the amount of $3,024.85 and awarded Paul Cordes, Jr. the sum of $15,000.00 for his injuries. The judgment cast Greg Chatellier, Kelly Cha-tellier, and the latter’s insurer, and Ronnie Fitzmorris, solidarily. Separate appeals were filed on behalf of the Chatelliers’ and the insurer and on behalf of Ronnie Fitz-morris.' Both appeals involve the sufficiency of the evidence relative to the participation in the altercation by Greg Cha-tellier and Ronnie Fitzmorris, respectively.

The scenario in this case in not an entirely unfamiliar one. The party on that Christmas night was hosted by Kevin Far-rar and Randy Cooper at the Cooper residence in Madisonville. About twenty-five or thirty guests, in their late teens, were in attendance. Apparently, everyone was acquainted with everyone else because of mutual association with Covington High School. Randy Cooper had also invited his cousin, Mike Cooper, to come by. Mike had attended St. Paul’s High, a rival school in Covington, but knew several of the other guests. Mike, however, invited two of his friends from St. Paul’s, Paul Cordes, Jr., and Keith Villere, to go with him, and it seems that Paul and Keith were acquainted with the hosts hut did not know any of the other guests.

The party had begun by the time Mike, Paul and Keith arrived and the guests were mingling in the yard area and in the garage where a pool table and beer keg were located. While Paul Cordes and Keith Villere went into the house to use the bathroom, Mike Cooper struck up a conversation with one Lloyd Ostendorf, Jr., about the recent Covington High-St. Paul’s football game, won by St. Paul’s. Mike later testified that he did not consider the conversation to be especially provocative, but it seems that Lloyd at the time became rather provoked by the tone of it. In any event, Lloyd related to Greg Cha-tellier (who incidentally played football for Covington High) that the three boys from St. Paul’s were making something of the results of the game. This did not particularly bother Greg but it was sufficient to draw his attention to Paul and Keith as they emerged from the house. Paul, for his part, became conscious of Greg’s attention to him, and given the general xenophobic attitude existent among affiliates of the rival schools, an air of tension resulted. The record reflects that neither Paul nor Greg was looking for trouble but neither wanted to appear to be intimidated by the other, under the circumstances. Both were vaguely apprehensive and each misread the other’s actions and intentions. An incident occurred in which Greg admitted that he hit or shoved Paul but did so in response to what he thought was a threatening gesture.

By this time the others became aware of the potential of the situation and those who testified at the trial recalled seeing or hearing some kind of inflammatory gesturing or namecalling at this point on the part of both Greg and Paul.

The hosts, Kevin Farrar and Randy Cooper, took steps to clear the air and suggested to Mike, Paul and Keith that they leave before a fight started. The three readily agreed and began walking toward Mike’s car which was parked about three-quarters of a block to a block away.

Greg Chatellier, however, still wanted to “talk” some more to “straighten out” the situation and decided to follow the other three. He asked his cousin, Ronnie Fitz-morris, to go with him. Ronnie, although he did not know Mike, Paul or Keith, and had not been particularly aware of the events leading up to this point, nevertheless agreed to accompany Greg. The rest of the party followed.

The testimony of the participants and the witnesses becomes less certain and more conflicting with respect to the ensuing altercation, but we find that the evidence as a whole establishes the following:

As Mike Cooper, Paul Cordes and Keith Villere approached Mike’s car, Keith was able to get into the back seat untouched. Paul headed for the front door on the passenger side, and Mike turned to face the following crowd, intending to half the pursuit and to complete the departure without incident. Ronnie Fitzmorris misread this action and struck Mike, knocking him to the ground. Someone attempted to restrain Ronnie from behind and Ronnie struck either this person, or another person standing close by as well. Meanwhile, Greg Chatellier had advanced on Paul Cordes and struck him in the eye. Paul was struck a few more times but because of his impaired vision was unable to say who hit him. Paul was then able to enter the front seat of the car but Jessie James Jenkins entered from the driver’s side and struck Paul a few times; however, these were apparently blows to the shoulder or body and did not cause any serious injury to Paul.

Recognizing that some of the testimony is inconsistent with the above account, we nevertheless find that the concensus of the witnesses’ descriptions supports its substantial accuracy.

We therefore find that the injuries to Paul Cordes were, more probably than not, inflicted by Greg Chatellier. We also find that the evidence does not establish that Ronnie Fitzmorris ever struck Paul Cordes. Finally, we must disagree with the Trial Judge’s apparent conclusion that Greg Chatellier and Ronnie Fitzmorris conspired to injure Paul Cordes specifically. Greg made no specific reference to any one of the three when he asked Ronnie to join him in following them, and Ronnie’s actions in striking Mike Cooper were more of an individual and spontaneous nature, rather than being a part of a preconceived joint attack plan. Ronnie did not know or believe there would be an actual fight at all, and was not even sure whom he had hit after it was over. We therefore conclude that the judgment against Ronnie Fitzmorris should be reversed.

With respect to the amount of damages awarded to Paul Cordes, Jr., the Trial Judge found the following:

“As a result of the blow to the eye, Mr. Cordes suffered a detached retina, which required two eye operations to repair. He was seen by a doctor in Covington, who treated his eye and shortly thereafter he saw Dr. Hilliard Michael Haik, who diagnosed the detached retina and shortly thereafter operated on him. He stayed in the hospital eight days and returned to (the University of) Notre Dame where he was a student. In June, he was operated on again and another procedure was used to correct the torn spot of the retina. He progressed well and was discharged July 12, 1972. Dr. Haik felt that he had fully recovered and the likelihood of a reoccurrence of this condition was unlikely. Mr. Cordes also received injuries to his mouth, which resulted in the capping of one tooth and repairs to another. There is no doubt that Mr. Cordes suffered some pain and a great deal of anxiety concerning his eye before it was corrected.”

The findings are amply supported and the amount of the award is appropriate.

For the above and foregoing reasons, the judgment of the Trial Court as to Ronnie Fitzmorris is reversed and the suit as to that defendant is ordered dismissed. In all other respects, the judgment is affirmed. Defendants-Appellants, Kelly Chatellier, Greg Chatellier and Fidelity and Casualty Company of New York are cast with the costs of this appeal.

Reversed in part and affirmed in part.


author: PRICE, Judge.

text:
    AETNA CASUALTY & SURETY COMPANY, Plaintiff-Appellee, v. Mrs. L. D. CHAPMAN, Defendant-Appellant.
    No. 12798.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.

      McIntosh, Fox & Miller, by Leo A. Miller, Jr., Lake Providence, for defendant-appellant.
    Theus, Grisham, Davis & Leigh, by J. Michael Hart, Monroe, for plaintiff-appel-lee.
    Before PRICE, MARVIN and HALL, JJ.
   PRICE, Judge.

This is an appeal from a judgment awarding to the insurer of the Bank of Dixie in Lake Providence the amount of damage caused to a drive-in-window drawer which was struck by a vehicle operated by defendant, Mrs. L. D. Chapman.

On August 31, 1973, Mrs. Chapman drove a borrowed pick-up truck to the drive-in-window of the Bank of Dixie to carry out a banking transaction. As she pulled up to the window, an extended mirror on the truck struck the service drawer causing extensive damage to this equipment. Aetna Casualty and Surety Company, as insurer of the Bank, paid the cost of repairs amounting to $1,150.66 and was awarded judgment for this amount against defendant.

On this appeal by Mrs. Chapman, she assigns error to the trial court in finding that she was at fault in causing the damage as she contends the manner in which the drawer was operated by the bank teller in the narrow drive way constitued a trap without appropriate warning to unsuspecting customers. Defendant also urges the doctrine of assumption of the risk by the Bank on the allegation that it had knowledge of prior instances of customers having struck the service drawer and had not taken proper steps to protect it from harm.

Defendant further contends that in the event she is found liable for the damage, the amount awarded is excessive as the replacement cost of the entire unit was not an appropriate measure of damages.

The testimony of defendant is conflicting with that of the Bank teller as to whether the service drawer was fully extended at the time defendant drove into it. Defendant testified on trial that the drawer was extended by the teller just as she was pulling abreast of the window which caused her to misjudge the clearance of her vehicle. The teller disputed this version and contends the drawer was never retracted after the previous vehicle departed as the incident happened during the peak period of business on a Friday afternoon. The teller also testified this procedure was followed frequently during rush periods as drive-in patrons pull up immediately behind the preceding customer without the teller having time to retract and re-extend the drawer.

As the answer filed by defendant alleged the drawer was fully extended as she approached it which is contradictory to her testimony on trial, we accept the teller’s version as being correct.

A review of all the evidence convinces us the cause of the accident and resulting damage was the lack of the exercise of proper driving skill by the defendant rather than the maintenance of a trap by the Bank.

The evidence shows defendant was a regular customer who was familar with the method of operation of the drive-in service window and the width of the driveway accommodating vehicles using it.

Defendant admits this was the first time she had driven this pick-up truck with the large side view mirrors. We have found the service drawer was fully extended and in full view at the time defendant proceeded to drive abreast of it. Therefore, had defendant exercised the degree of skill required of a reasonably prudent driver, under the circumstances she would have avoided striking the drawer. The fact that the vehicle she was driving was equipped with protruding mirrors increased the degree of skill required of her commensurate with this known hazard.

We do not find the evidence to show the Bank had assumed the risk of harm to the drive-in-window equipment because of prior known instances of customers colliding with the drawer. There was proof of only one other such instance in the history of the operation of this facility. No damage occurred in that incident.

The trial court awarded the insurer the full replacement cost of the complex service drawer. The sole evidence in the record on this issue is the testimony of Edward Parker, the district manager of Die-bold Incorporated, a specialist in installation and repair of bank equipment from Jackson, Mississippi. He testified the drawer was bent and warped to such an extent it could not be repaired and it was necessary to replace the entire unit. There is no salvage value of this type equipment. Therefore, the trial judge awarded the costs of the new unit plus labor amounting to $1,150.66.

The proper measure of damages where property has been destroyed beyond repair is replacement cost less depreciation, when there is no evidence as to the value of the property prior to and after the damage. Granger v. Bouillon, 220 So.2d 764 (La.App. 1st Cir. 1969); Gullat v. Ashland Oil and Refining Company, 243 So.2d 820 (La.App. 2nd Cir. 1971).

There was no testimony at the trial in regard to the approximate age of the particular bank drawer. Parker testified his company had a maintenance contract with the Bank of Dixie. He estimated the normal life of a service drawer to be approximately ten years, which period can be extended to fifteen or more years by proper maintenance under a service contract.

As there is no evidence in the record as to the age of the service drawer, we are unable to determine the amount of depreciation to be deducted from replacement cost of $1,150.66. Therefore we remand this case to the district court for the taking of evidence in this regard and for a determination of the appropriate amount of damages to which plaintiff is entitled consistent with the views expressed herein.

The costs of this appeal are taxed equally to plaintiff and defendant.


author: COVINGTON, Judge:

text:
    William E. STILLEY v. STATE of Louisiana, Through LOUISIANA DEPARTMENT OF CORRECTIONS, and its Director Elayn Hunt.
    No. 10575.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Robert R. Faucheux, Jr., and Daniel E. Becnel, Jr., Reserve, for appellant.
    Wm. J. Guste, Jr., Atty. Gen., and J. Marvin Montgomery, Baton Rouge, for ap-pellee.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

This matter is before the court on appeal from the judgment of the district court which sustained a peremptory exception of lack of legislative authority to sue the state and its agency. The suit, filed on August 19, 1974, declares that an accident occurred on May 6, 1974, when a truck tire, which William E. Stilley was repairing, exploded and allegedly caused the injuries for which he is seeking redress. An inmate at the state penitentiary, Stilley was working on a wheel and tire of a state-owned vehicle in the A.S. & R. Garage Building at Angola, Louisiana.

The plaintiff-appellant filed this suit against the State of Louisiana, through the Department of Corrections, and also against the Department’s director, Elayn Hunt, on the grounds that the tire exploded as a result of the negligent acts of the defendants’ employees.

At the time when the suit was filed and when the hearing was held on the exception in the trial court, the plaintiff-appel-iant had not obtained previous authorization from the legislature to sue the State, nor had the State waived its immunity. Thus, under the holding of Darville v. Associated Indemnity Corp., 311 So.2d 925 (La.App. 1st Cir. 1975) which was the established jurisprudence at the time, the trial court properly sustained the exception of lack of legislative authorization. However, on November 3, 1975, the Supreme Court reversed the Court of Appeal, 323 So.2d 441 (La.1975), holding that the Department of Corrections was not among the special agencies of the state which were granted immunity from tort actions by Article 19, Section 26 of the 1921 Constitution.

On July 14, 1975, after this appeal was taken, the legislature approved House Concurrent Resolution number 248, which legislatively authorized the plaintiff herein to sue the State, through its agency, and to pursue any court action then pending relating to the alleged mishap. The pertinent provisions of that resolution read as- follows :

“William Stilley is hereby authorized to file suit and/or prosecute any suit now pending, against the state of Louisiana, through the State Board and/or Department of Corrections, upon a claim for damages alleged to have been sustained by reason of an accident which occurred at or near Louisiana State Penitentiary at Angola on or about May 6, 1974 and which is alleged to have been caused by the negligence of the officer, agents and/or employees of the said State Board and/or Department of Corrections. The state of Louisiana, through the State Board and/or Department of Corrections may be cited and served by citation and ’service on the chairman of the State Board of Corrections and/or the director of the State Department of Corrections and on the attorney general of Louisiana, and the suit herein authorized may be instituted before the Nineteenth Judicial District Court in and for the parish of East Baton Rouge or before the Twentieth Judicial District Court in and for the parish of West Fel-iciana.” (emphasis supplied)

Consequently, the state has waived its immunity from suit and from liability. The 1921 Constitution, in Section 35 of Article III, as amended, empowers the Legislature to waive governmental immunity, providing in part as follows:

“The Legislature is empowered to waive, by special or general laws or resolutions, the immunity from suit and from liability of the state, . . . and each authorization by the Legislature for suit against the State or other such public body, heretofore and hereafter enacted or granted, shall he construed to be and shall be effective and valid for all purposes, as of and from the date thereof, as a waiver of the defendant’s immunity both from suit and from liability ...”

We find that the concurrent resolution herein is a categorical waiver of immunity and that it specifically authorizes the suit and its continuing prosecution although the resolution was approved subsequent to the date of the initiation of the litigation.

As we have stated above, the principal issue for us to consider on this appeal is whether the plaintiff could bring a tort action against the State through the Department of Corrections without previous authorization by legislative act. Since the legislature has passed a resolution specially authorizing the plaintiff herein to institute and prosecute this suit against the State through the defendant agency, that issue has become moot; Long v. Northeast Soil Conservation District of Louisiana, 226 La. 824, 77 So.2d 408, 410 (La.1954).

While it is true, as the defendants-appellees argue, that at the time this proceeding was filed the legislature had not authorized suit against the state and its agency, that state of events is of no avail to the appellees; the state has now effectively waived its immunity. The concurrent resolution states unequivocably that it applies to pending suits as well as to suits yet to be instituted, thus specifically recognizing the instant suit. The law sanctions retrospective applications of the resolution; Long v. Northeast Soil Conservation District of Louisiana, supra, at page 411. Moreover, such resolution, waiving the state’s immunity, is remedial in nature and is to be liberally construed; Pettis v. State Department of Hospitals, 281 So.2d 881, 885 (La.App. 3rd Cir. 1973).

Since we have concluded that the immunity of the state has been validly waived by the concurrent resolution, it is not necessary that we consider the plaintiff’s primary contention that the State of Louisiana, through the Department of Corrections, is not immune from suit in tort actions, even in the absence of a waiver of immunity.

The plaintiff-appellant has also named as a defendant, Elayn Hunt, the Director of the Louisiana Department of Corrections. It is clear from the pleadings that the defendant, Hunt, was sued for official acts only, because no injury to the plaintiff is alleged by said defendant other than might have been done in her official capacity. We conclude on this question, as did the trial court, that the exception in the nature of no cause of action should be sustained and that the suit should be dismissed as to the defendant Elayn Hunt; see Huckaby v. Netterville, 263 So.2d 113, 116 (La.App. 1st Cir. 1972).

Parenthetically, on May 5, 1975, the plaintiff filed a. supplemental and amending petition, seeking to make several individual parties additional defendants. On May 27, counsel for the appellees moved to annul the service of process thereof, alleging that the plaintiff’s counsel had caused the supplemental petition to be served on him although the mover alleged that he was not counsel of record for those individuals; therefore, counsel for these appellees took the position that the service, not being done in accordance with the provisions of C.C.P. 1231-1235, was fatally defective. This matter was not disposed of by the lower court prior to this appeal; hence, we need not consider it — nihil habet forum ex scena.

For the foregoing reasons, we affirm the judgment of the district court dismissing the plaintiff’s suit against Elayn Hunt, the Director of the Louisiana Department of Corrections, but reverse said judgment insofar as it dismissed the plaintiff’s suit against the State of Louisiana, through the Department of Corrections. The case is remanded for further proceedings in accordance with the views expressed herein.

The assessment of costs shall await final disposition of the case.

Affirmed in part, reversed in part, and remanded.


author: HALL, Judge.

text:
    Fred MADDOX, Plaintiff-Appellant, v. AMERICAN MOTORISTS INSURANCE COMPANY et al., Defendants-Appellees. Wilbert Lee THOMAS et al., Plaintiffs-Appellees, v. Fred T. MADDOX and American Motorists Insurance Company, Defendants-Appellants.
    Nos. 12796 and 12797.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    Johnston, Thornton, Pringle & Greer by James J. Thornton, Jr., Shreveport, for Fred Maddox.

      Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for American Motorists Ins. Co.
    William Robert McKenzie, Shreveport, for R. C. Gray.
    Booth, Lockard, Jack, Pleasant & Le-Sage by H. F. Sockrider, Jr. Shreveport, for Wilbert Lee Thomas.
    C. William Gerhardt, Shreveport, for Dorothy Mae Thomas, Mary Gray and Annie Lee Lane.
    Before PRICE, HALL and MARVIN, JJ-
   HALL, Judge.

These consolidated suits arise out of a three-automobile accident which occurred December 8, 1972, at approximately 7:20 p. m. on North Market Street in Shreveport. North Market is a north-south thoroughfare with two southbound lanes and two northbound lanes, divided by a median. The accident happened at a break in the median when a southbound automobile driven by Fred Maddox struck an automobile driven by Wilbert Thomas which was stopped in the break in the median headed easterly. The impact knocked the Thomas vehicle into another automobile driven by R. C. Gray, which was also stopped in the break in the median, headed easterly, immediately to the right or south of the Thomas vehicle.

In suit No. 12,796, Maddox sued Thomas and his own insurer, American Motorists Insurance Company, under its uninsured motorists coverage. The insurer made Thomas and Gray third party defendants. Thomas and Gray denied negligence and alternatively, pled contributory negligence on the part of Maddox.

In suit No. 12,797, Thomas and Gray, and guest passengers in their automobiles, sued Maddox and his insurer. The defendants denied negligence and, alternatively, pled contributory negligence on the part of Thomas and Gray.

The district court, in transcribed oral reasons of judgment, found all three drivers negligent and denied recovery by any of the drivers. Awards for personal injuries and medical expenses were made in favor of the guest passengers against Maddox and his insurer. Maddox and his insurer appealed in both suits. Answers to the appeals were filed by Thomas and Gray. The guest passengers neither appealed nor answered the appeals. Finding no error in the judgment of the district court, we affirm.

The testimony of Thomas and Gray and their guest passengers is to the following effect. They had been shopping at a shopping center located on the west side of North Market Street. Leaving the shopping center parking lot, with the intention of driving through the break in the median and turning left or north, Thomas stopped at the edge of the southbound lanes of North Market and allowed traffic to clear. He then proceeded across the southbound lanes and stopped in the break in the median, angled in a northeasterly direction, with the entire length of his station wagon within the median. Gray, following in his automobile, allowed a few southbound cars to pass and then drove into the break in the median and stopped to the immediate right of Thomas. Several minutes passed while they were waiting for northbound traffic to clear, during which time several southbound cars also passed. Suddenly the left rear side of the Thomas automobile was struck by the southbound Maddox automobile, knocking the Thomas car into the Gray automobile. The witnesses testified Maddox appeared to have been drinking.

A conflicting version was given by Maddox. He testified he was traveling south in the inside lane within the speed limit. The Thomas and Gray automobiles pulled out of the shopping center parking lot, crossed the southbound lanes in front of him, and stopped in the break in the median with the rear ends of their vehicles blocking his southbound inside lane. He was unable to pull to the right because of an automobile in the right lane, applied his brakes, but was unable to stop prior to striking the Thomas automobile. Maddox denied having anything to drink.

The accident was investigated by a Shreveport police officer who arrived within a few minutes after the accident and before any of the vehicles were moved. He testified the cars were all still together, with the front of the Maddox vehicle and the rear ends of the Thomas and Gray vehicles all in the inside southbound lane. The Thomas vehicle blocked about three-quarters of the lane. From debris, the point of impact was established as within the southbound lane. There were no skid marks. There was no indication Maddox had been drinking.

The district court, judging the demeanor and credibility of the witnesses, determined that Maddox was negligent in not seeing what he should have seen, that is, the Thomas and Gray vehicles protruding out into his lane of travel, in not keeping a proper lookout under the conditions prevailing, and in failing to avoid the collision when he could have done so. The court found Thomas and Gray negligent in leaving a portion of their vehicles protruding in the inside southbound lane, particularly under the prevailing- conditions of darkness, rain and heavy traffic.

The testimony of the police officer clearly establishes that the Thomas and Gray vehicles were partially blocking the inside southbound lane of North Market Street and that the point of impact was in the southbound lane, not in the break in the median as contended by Thomas and Gray. The latter attack the inexperience of the officer and the accuracy of certain measurements made by him at the scene. Our review of the record discloses no significant evidence tending to undermine the accuracy of the officer’s testimony. Thomas and Gray were negligent in stopping with their vehicles extending into and partially blocking the southbound lane.

The trial judge specifically rejected Maddox’s testimony that the Thomas and Gray automobiles pulled out and stopped in front of him suddenly in such a manner that he could not avoid a collision. Although Thomas, Gray and their passengers may have been mistaken as to the exact location of their vehicles in relation to the southbound lane and the break in the median, their testimony relating to the manner in which they exited the parking lot and the time they were stopped in the break in the median appears reasonable. Gray was following Thomas. Gray waited for southbound traffic to clear after Thomas crossed the southbound lanes and stopped. He then proceeded across the southbound lane and stopped. Both vehicles were completely stopped at the time of impact. All the witnesses except Maddox testified they were stopped for a considerable time before impact and other cars passed. We agree with the trial court’s conclusion they were stopped long enough that Maddox should have segn them and by exercising reasonable precaution, avoided vthe collision. Maddox was negligent in failing to do so.

The amounts awarded to the guest passengers for their injuries are not at issue on appeal.

For the reasons assigned, the judgment of the district court is affirmed, at the cost of appellants, Fred Maddox and American Motorists Insurance Company.

Affirmed.


author: ELLIS, Judge.

text:
    Terry G. PRICE v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION.
    No. 10517.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Nathan S. Fisher, Baton Rouge, for appellant.
    James C. Dixon, Baton Rouge, for appel-lee.

      Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

Terry G. Price either pled guilty or forfeited bonds on some twelve moving traffic violations between 1971 and the latter part of 1973. As a result, and following an interview with a Mr. McCullogh, he was notified by letter dated December 17, 1973, from the Louisiana Department of Public Safety License Control and Driver Improvement Division that his driver’s license was suspended for a period of five months. On January 10, 1974, Mr. Price requested an administrative hearing, which was conducted on February 18, 1974, by Kirby J. Bergeron. On August 15, 1974, Mr. Price was notified that the suspension of his license had been affirmed.

On April 18, 1975, this suit was brought asking for a preliminary, and, eventually, a permanent injunction to prevent the enforcement of the suspension -order against Mr. Price. After a hearing on the rule for the preliminary injunction it was denied, and plaintiff has appealed. It is argued that the failure of the defendant Department to follow the provisions of the Administrative Procedure Act renders the suspension of plaintiff’s license null and void.

The authority of the Department to suspend drivers’ licenses is contained in R.S. 32:414. More particularly, R.S. 32:414, subds. D and E provide in pertinent part as follows:

“D. The department may conduct an investigation to determine whether the license shall be suspended, cancelled or revoked upon a showing by its records or other sufficient evidence that the licensee :
* * * * * *
“3. Has been convicted of such frequency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disrespect for traffic laws and a disregard for the safety of others;
“4. Is an habitually reckless or negligent driver of a motor vehicle; * * * *
“E. Upon the conclusion of such investigation, the person holding such investigation shall prepare findings based upon the evidence received and considered. If the findings are to the effect that the person referred to herein is incompetent or is unfit to operate a motor vehicle upon any grounds upon which license may be refused, as stated in this Chapter, the department, upon a review of such findings, shall have authority to forthwith revoke the license of such person, or if the findings are to the effect that the person therein referred to has by reason of negligence or reckless driving endangered life, limb, or property or has thereby caused loss of life or injury to person or property, the department, upon a review of such findings, shall have power to suspend the license of such person for a period not to exceed six months, or may revoke such licpnse, and in either event shall require that such license be surrendered to the department. For cause satisfactory to the department, it is hereby authorized to suspend, cancel, or revoke the license of any person for a period of not more than one year. Any person whose license has been suspended, cancelled or revoked by the department shall be notified of such suspension, cancellation or revocation in writing by the department, which notice shall be sent by certified mail to the last address furnished by such person; whereupon the said person shall within five days return his or her license to the department. The failure on the part of any person to comply with this provision shall be punishable as herein provided. Any person denied license or whose license has been suspended, cancelled or revoked shall have the right to file an application within thirty days thereafter for a hearing before the district court of the parish in which the applicant resides, and such court is vested with jurisdiction to set the matter for hearing in open court upon ten days written notice to the department, and thereupon to determine whether the person is entitled to a license or is subject to suspension, cancellation or revocation of license under the provisions of this Chapter, and appeal from the district court may be taken to any court of competent appellate jurisdiction.”

It is to be noted that the Department is not required to hold hearings or to give any notice to those being investigated of anything other than the suspension of their licenses. Due process requirements are met by the judicial review provided for in the foregoing statute. See State, Dept. of Public Safety, Drivers’ Lic. Div. v. Moore, 311 So.2d 20 (La.App. 2 Cir. 1975).

R.S. 49:951, first article of the Administrative Procedure Act, provides, in part:

“As used in this Chapter:
“1. ‘Adjudication’ means agency process for the formulation of a decision or order.
******
“3. ‘Decision’ or ‘order’ means the whole or any part of the final disposition (whether affirmative, negative, in-junctive, or declaratory in form) of any agency, in any matter other than rule-making, required by constitution or statute to be determined on the record after notice and opportunity for an agency hearing, and including non-revenue licensing, when the grant, denial, or renewal of a license is required by the constitution or statute to be preceded by notice and opportunity for hearing.”

In interpreting the foregoing provisions in First National Bank of Abbeville v. Sehrt, 246 So.2d 382 (La.App. 1 Cir. 1971), we said:

“The foregoing can only be construed to make the Act applicable only when a hearing is presently provided for by law. It does not create the right to a hearing when none is presently required. It provides the procedures to be followed when holding administrative hearings otherwise required by law.”

As in the First National Bank of Abbeville case, supra, the hearings granted by the Department in this case go beyond what is required by the law. It need only give notice of the fact of the suspension of the license, and can do so without a hearing. We are, therefore, of the opinion that, although it is applicable to the Department of Public Safety, the Administrative Procedure Act does not create a right to a hearing when none is required by the appropriate law, R.S. 32:414, and the Department is not required to comply with its provisions in this situation.

In Young v. State, Dept. of Pub. Safety, Lic. C. and D. I. Div., 298 So.2d 298 (La.App. 1 Cir. 1974), in holding the procedural appellate provisions of the Act applicable to the Department, the court based its decision on the definition of the word “Agency”. We agree, of course, that the Act is applicable to hearings which the Department is required by law to hold.

However, since the court in the Young case did not consider the issues raised in this opinion, or our opinion in the First National Bank of Abbeville case, supra, it. cannot stand as extending the Administrative Procedure Act to cover proceedings under R.S. 32:414. To whatever extent the Young case conflicts with our holding herein, it is in error, and must be overruled.

In order to obtain a preliminary injunction, a plaintiff must make a prima fa-cie showing that he would prevail on the merits of the case, and that he will suffer irreparable injury unless the injunction issues. Articles 3601 and 3609, Code of Civil Procedure; Melancon v. Assumption Parish Police Jury, 231 So.2d 690 (La.App. 1 Cir. 1970).

Our review of the record and the applicable law leads us to the conclusion that plaintiff has failed in both of these respects. There is no evidence offered at all to show that plaintiff will be irreparably injured by the loss of his driver’s license.

The judgment appealed from is therefore affirmed, at plaintiff’s cost, and the case remanded to the trial court for trial on the merits.

Affirmed and remanded.


author: PICKETT, Judge.

text:
    John Vernon JAMES, Jr., Plaintiff-Appellee, v. Sandra King JAMES, Defendant-Appellant.
    No. 10546.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    J. Randolph Harger, Robert L. Roland, Baton Rouge, for Sandra King James.
    Bart Eaton, Baton Rouge, for appellee.
    Before SARTAIN, BAILES and PICKETT, JJ.
   PICKETT, Judge.

This action originated as a suit for legal separation by John Vernon James, Jr., against his wife, Mrs. Sandra King James, on the ground of abandonment.

The plaintiff prevailed in the District Court and obtained judgment against Mrs. James. We reverse that Judgment.

In his petition below, Mr. James, alleging that he and his wife were domiciled in East Baton Rouge Parish, sought a legal separation on allegations that his wife abandoned him, on or about January 13, 1975, without lawful cause, taking with her the two children of the marriage Lea Margot James, age 12, and Mary Michelle James, age 12. He further alleged that the present whereabouts of his wife and children were unknown, and a curator ad hoc was appointed to represent her.

In the trial of the case the only parties who testified were the Plaintiff, his two witnesses, and the curator ad hoc. The wife was not personally served, and made no appearance, although the curator ad hoc was able to contact her by correspondence.

The Trial Judge, in granting the husband a legal separation, ruled from the bench, and assigned reasons orally.

The evidence established that there had been a history of marital difficulties between the parties during their twelve-year marriage.

With reference to the incidents that formed a basis for the instant case, the evidence establishes that on Friday night, January 10, 1975, Mr. and Mrs. James got into a heated argument, and Mr. James told his wife that he did not love her, that he was leaving, and that he was not coming back. He then gave her his paycheck, and left the home.

He called her on the telephone the next day, which was Saturday. The nature and purpose of this call is not clear, although subsequent events lead to the probable purpose of the call having been Mr. James wanting to get his personal belongings from the home.

The next time Mr. James was in communication with his wife was about 3:00 P.M. the following Monday, January 13, 1975, at which time he' went back to their apartment-home for the avowed purpose of obtaining and removing some of his personal belongings. The record is devoid of any evidence of any desire or intention on the part of Mr. James to return to the matrimonial domicile to live at this time. On the contrary, Mr. James indicated that, at this point, he had not made a decision as to whether he was going to stay away for good. In any event, when he arrived at the home his wife told him to return about 6:00 P.M. to get his personal belongings. Mr. James left, and when he returned at the appointed time he found that his wife had vacated the apartment, taking the children and all of their belongings, including their furnishings, with her. Mr. James did not remain. Mr. James then filed suit, alleging abandonment.

The two witnesses who testified for Mr. James testified that a separation had in fact occurred, and that no reconciliation of the two parties had taken place. Neither witness knew any of the circumstances of the separation, either of January 10, 1975, or the alleged abandonment of January 13, 1975. Accordingly, the testimony of Mr. James was completely uncorroborated as any facts concerning the alleged cause of the alleged abandonment of January 13, 1975.

Article 143 of the Louisiana Civil Code, upon which this suit was based, provides in pertinent part as follows:

“Separation grounded on abandonment by one of the parties can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made to appear in the manner hereafter directed; . . . .”

This Court, in the case of Boudreaux v. Tanner, (1974) 295 So.2d 511, in an interpretation of the provisions of the above cited Article 143, said:

“Therefore, a party alleging abandonment must prove that
(1) there was a withdrawal from the common dwelling;
(2) that the withdrawal was without lawful cause; and
(3) that the withdrawing party has constantly refused to return to live with the other spouse.”

Applying these requirements to the case at bar we find that while Mrs. James did in fact withdraw from the common dwelling on January 13, 1975, this withdrawal was not without lawful cause.

The evidence clearly establishes that on the night of January 10, 1975, Mr. James withdrew from the common dwelling, without any fault in the wife having been established, leaving his wife and two small children. At about 3:00 o’clock P.M., on Monday, January 13, 1975, having taken off from work for the purpose, he returned to the apartment-home for the sole avowed purpose of picking up his clothing. He did not offer to return to the home, nor did he express any desire or intention of returning, at that time, or at any time subsequent thereto.

The vacated apartment-home was never again used as a dwelling by either party. Mr. James established himself in the Lorraine Apartments on Boulevard de Province. The evidence does not reflect the whereabouts of Mrs. James.

The record is devoid of any evidence that Mrs. James “has constantly refused to live with the other spouse.”, namely, Mr. James.

The only evidence that addresses itself to this area of proof is the testimony of Mr. James to the effect that if Mrs. James had offered to come back to live with him in his new quarters he “probably” would have taken her back. This certainly cannot be construed as proof that Mrs. James has “constantly refused” to return to Mr. James.

LSA-C.C. Art. 145 provides for proof of abandonment in such cases as follows:

“In all suits hereafter, whether or not there has been an answer filed, the abandonment with which the husband or wife is charged shall be proved as any other fact in a civil suit and such case shall be set and tried as any other suit.”

Accordingly, since Mr. James has failed to bear his burden of proof, by a preponderance of the evidence, his suit must be dismissed.

Plaintiff-Appellee is cast for all costs.

Reversed and rendered.


author: LOTTINGER, Judge.

text:
    Luther W. ZUBER and Gail Anderson Zuber v. LAFOURCHE PARISH SCHOOL BOARD and United States Fidelity Guaranty Co.
    No. 10544.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Larry P. Boudreaux, Thibodaux, for appellants.
    Robert D. Morvant, Thibodaux, and Wood Brown, III, New Orleans, for appel-jees_
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

Plaintiffs-appellants, Luther W. Zuber and Gail Anderson Zuber, filed suit against the Lafourche Parish School Board and United States Fidelity Guaranty Company for damages for the wrongful death of their minor son who was killed when he was struck by a school bus operated by an employee and/or agent of the defendant School Board. In their petition, plaintiffs-appellants requested a jury trial. The Trial Judge sustained a Motion to Strike Demand for Trial by Jury, and plaintiffs-appellants have taken this appeal.

Plaintiffs-appellants contend that the Trial Judge erred in granting the motion to strike the jury demand because there is no valid basis for the denial of a jury trial against a political subdivision of the state in a suit for damages of this type. Plaintiffs-appellants argue that the general law of the state as expressed in LSA-C.C.P. Art. 1731 favors jury trials, and that this right should be preserved unless there is a compelling statement of legislative will to the contrary. Though plaintiffs-appellants recognize LSA-R.S. 13:5104 as a statement of legislative will, they argue that since it was at one time a generally accepted theory that the state and its political subdivisions could not be sued except with their consent, the principle of. immunity from suit has been erroded because it is now recognized that there is no sound rational basis for preferential treatment of the state or any of its political subdivisions. Plaintiffs-appellants further point out that La.Const. Art. 12, § 10 (1974) provides generally that no political subdivision of the state shall be immune from suit or liability in contract or for injury to person or property. It is finally argued that there is no justification for a denial of a jury trial as against the liability insurer. In oral argument, counsel for plaintiffs-appellants contended that the denial of a jury trial was unconstitutional.

Even though the judgment of the Trial Court sustaining the motion to strike plaintiffs’ demand for trial by jury is an interlocutory decree, it may cause irreparable injury and is therefore appealable. Hernandez v. Sartain, 297 So.2d 740 (La.App. 1st Cir. 1974), Plaisance v. Collins, 234 So.2d 436 (La.App. 1st Cir. 1970) and Southern Baptist Hospital v. Williams, 89 So.2d 769 (La.App.Orl. Cir. 1956), writs denied (1956).

As to the plaintiffs-appellants’ contention in oral argument that the denial of a jury trial under .the facts in this case is unconstitutional, we are compelled to point out that nowhere in the record of this proceeding do we find any pleading in the Trial Court contending that the denial of a jury trial is unconstitutional. The Supreme Court of this state in Summerell v. Phillips, 258 La. 587, 247 So.2d 542, 546 (1971) stated:

“Although several exceptions have been recognized, [footnote omitted] the general rule prevails that a litigant cannot raise the unconstitutionality of a statute or ordinance unless its unconstitutionality is specially pleaded and the grounds particularized, [citation of cases omitted],
“As a corollary of the above rule, it is also well accepted that a litigant who fails to plead the unconstitutionality of a statute cannot legally raise the constitutional issue in the appellate court.”

Therefore, for the views expressed by the Supreme Court in Summerell v. Phillips, supra, we cannot consider the question of the unconstitutionality of this denial of a jury trial.

Plaintiffs next argue that there is no sound rational basis for preferential treatment of the state or any of its political subdivisions in being exempt from jury trials. In support of this argument plaintiffs cite La.Const. Art. 12, § 10 (1974). The people of this state denied jury trials against the state or any of its political subdivisions when the legislature enacted LSA-R.S. 13:5104, which has been held by this court as a valid exercise of legislative authority. Pelloat v. Greater New Orleans Expressway Com’n, 175 So.2d 656 (La.App. 1st Cir. 1965). Plaintiffs do not contend that LSA-R.S. 13:5104 is unconstitutional in light of La.Const. Art. 12, § 10 (1974), and therefore, that question is not now before us. We see no need to change our opinion as expressed in Pelloat.

Lastly, as to the argument that there is no justification for the denial of a jury trial as against the liability insurer, the courts of this state on several occasions have wrestled with the problem of jury trials where the state or an agency or political subdivision thereof has been a party defendant. In Abercrombie v. Gilfoil, 205 So.2d 461 (La.App. 1st Cir. 1967), this court took the position that where the State of Louisiana, through the Department of Highways, was one of several main defendants, that all issues must be tried by the judge alone. The other defendants were individuals as well as their insurers. Ellis, J., dissented taking the position that the language of LSA-R.S. 13 :5104 was never intended by the legislature to deny the right of trial by jury to those involved in a suit in which the state is also a party, as to those issues not involving the state directly. He reasoned that as to those issues directly affecting the state, the judge would try, and as to the others, they would be tried by the jury.

The Second Circuit Court of Appeal next had the opportunity to rule on a similar set of circumstances in Jobe v. Hodge, 207 So.2d 912 (La.App. 2nd Cir. 1968), writ granted, 251 La. 1079, 208 So.2d 536 (1968). In Jobe, several cases were consolidated for purposes of trial and involved allegations of injuries received by reason of battery and arrest at the hands of police officers of the Village of Tallulah, Louisiana. The defendants were the police officers, several named individuals, as well as the Village of Tallulah. The Second Circuit held that the plaintiffs were entitled to a jury trial as against the individual defendants, but not as against the Village, but that the trial would take place at the same time with the judge deciding the issues as they related to the Village, and the jury deciding all other issues. The Second Circuit adopted basically the dissent in Abercrombie, supra.

Next in point of time came Watson v. Hartford Accident & Indemnity Company, 214 So.2d 395 (La.App. 3rd Cir. 1968). Here too, the facts were similar in that there were several non-governmental defendants along with a police jury, a health unit, and the State Board of Health. The Trial Judge rendered his decision as to trial by jury after the Abercrombie decision, supra, but prior to the Jobe decision (La.App. 2nd Cir.), supra, and followed the Abercrombie decision ruling that all issues as to all parties in all three consolidated cases were to be tried by the judge without a jury. In the meantime, the Jobe decision (La.App. 2nd Cir.), supra, was published, and was available to the Third Circuit. Our brethren on the Third Circuit followed the Jobe decision and reversed the Trial Judge ruling that as to those issues affecting the governmental bodies, the judge could decide the issues, and as to all other defendants, a trial jury could decide.

As we have above noted the Supreme Court granted writs in Jobe, supra, reversed the decision of the Second Circuit and denied a trial by jury. Jobe v. Hodge, 253 La. 483, 218 So.2d 566 (1969), rehearing denied (1969). In reversing the Second Circuit the Supreme Court through Mr. Justice Summers said:

“To permit the fragmented trial by the jury as to some defendants and by the judge as to the public body, we think, would be contrary to the express language of La.R.S. 13:5104 prohibiting a trial by jury where a public body is a defendant. A sovereign’s immunity from suit can only be waived by the sovereign itself in language which explicitly indicates such a waiver and if the waiver is subject to a condition or limitation the condition or limitation must be rigidly enforced by the courts. To put it another way, when the State of Louisiana consents to suit against itself or one of its political subdivisions, it consents to be sued only in the manner and under the conditions which it lays down. Those conditions are contained in Article III, Section 35 of the Louisiana Constitution of 1921, permitting suits against political bodies where authorized, in the Lawra-son Act (La.R.S. 33:361) under which we understand the Village of Tallulah was organized and which permits such political bodies to sue and be sued, and in Title 13, Section 5104 of the Revised Statutes which declares that ‘no suit against the state or other public body shall be tried by jury.’
“Thus, if only one trial can be had in this case under Article 1735 that trial must be without a jury, since it is a distinct condition to any suit against a public body that it cannot be tried by a jury.
“We believe the legislature intended this result because to allow a trial by jury as to the employees, the policemen, and deny it as to their employer, the Village, must inevitably result in a detriment to the orderly processes of the law.”

The Supreme Court was split four to three, with Justices Hamiter, Sanders, Summers, and Barham in the majority, and Chief Justice Fournet, and Justices Mc-Caleb and Hamlin in the minority.

The Supreme Court modified its decision in lobe, supra, when in Talley v. Friedman, 255 La. 735, 232 So.2d 495 (1970), rehearing denied, (1970), it held that a jury could hear and decide those matters that did not relate to the governmental body, and the judge could decide those issues that related to the governmental body. This was an automobile accident case wherein the plaintiff sued the defendant, and the defendant filed a third party demand against the Louisiana Department of Highways. The plaintiff originally asked for a jury trial and same was granted. The Highway Department excepted to a jury trial under LSA-R.S. 13:5104. The original defendant then moved to strike the motion for trial by jury, and the Highway Department then moved to strike the third party demand. At that point, the plaintiff then offered a motion for separate trials as to the main and incidental demands. The Trial Court overruled the Highway Department’s motion to strike as well as the plaintiff’s plea for separate trials, and ordered a trial without a jury. This case was distinguished from Jobe in that the Highway Department was not the main defendant, but rather a third party defendant. The Supreme Court cited LSA-C.C. P. Arts. 1038, 1731 and 1733, and after recognizing a conflict created by the second paragraph of Art. 1731 concluded:

“In view of these provisions we see no reason why, in the instant case, the principal demand cannot be tried first before a jury which will determine whether the defendants are liable and, if ho, the amount of damages to which plaintiff is entitled. If they are found to be not liable, that is the end of the entire matter. If otherwise, the judge, ‘still retaining jurisdiction of the’ incidental demand may consider the evidence originally adduced, together with whatever additional evidence might be material to the liability of the Department (the defendant in the incidental demand) and determine its liability vel non. If the Department is also found to have been guilty of acts proximately causing the accident the court will then order contribution in accordance with law.”

Mr. Justice Summers dissented adhering to the ruling in Jobe, supra.

The dast word from the Supreme Court is Champagne v. American Southern Insurance Co., La., 295 So.2d 437 (1974). There the question was whether a jury trial demanded by a principal defendant could be defeated by the plaintiff subsequently amending his petition to add the state as a defendant. The Trial Judge ruled that all motions for a jury trial by any party would be denied based on the Supreme Court’s decision in Jobe, supra. The Supreme Court overruled its decision in Jobe and held that permitting but one trial with the judge determining the issues relative to the state, and the jury ascertaining all the others was the better practice.

We have reviewed the above decisions in some detail in order to better understand' the reasoning that has been used by the courts in reaching their decisions. From the Supreme Court’s original position in Jobe, supra, to its modification in Talley, supra, and finally its decision in Champagne, supra, we note the Supreme Court gradually accepting the idea that a trial by judge and by jury can take place at the same time, thus preserving to the individual litigant those rights guaranteed to him to a trial by jury, and to the state, those rights as expressed by the legislature to a trial by the judge alone.

In all of the above cases where the courts have ruled that a jury could determine the issues as they affected the individual litigants, and the judge would determine all other issues, the issues as they did exist were clearly distinguishable as between the individual litigants and the governmental bodies. We do not believe that in the instant proceeding, however, we have such a situation. The Trial Judge in his written reasons for judgment very properly pointed out, “the situation does not exist here where there is any other issue than the liability of the public body named herein as the defendant, and there is no issue to sever for the jury to decide one facet and the judge to decide the other.” We agree with this appraisal by the Trial Judge, and we do not believe that the facts in this case come within the reason-ing of Watson v. Hartford Accident & Indemnity Co., supra, Talley v. Friedman, supra, or Champagne v. American Southern Insurance Co., supra.

Therefore, for the reasons hereinabove expressed, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by plaintiffs-appellants.

Affirmed.

      . LSA-R.S. 13:5104 provides: “No suit against the state or other public body shall be tried by jury.”

      . LSA-C.C.P. Art. 1038.
      “The court may order the separate trial of the principal and incidental actions, either on exceptions or on the merits; and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other. “When the principal and incidental actions are tried separately, the court may render and sign separate judgments thereon. When in the interests of justice, the court may withhold the signing of the judgment on the action first' tried until the signing of the judgment on the other.”
      LSA-C.C.P. Art. 1731.
      “Except as limited by Article 1733, the right of trial by jury is recognized.
      “The nature and amount of the principal demand shall determine whether any issue in the principal or incidental demand is triable by jury.”
      LSA-C.C.P. Art. 1733.
      “A trial by jury shall not be available in:
      (1) A suit demanding less than one thousand dollars exclusive of interest and costs;
      (2) A suit on an unconditional obligation to pay a specific sum of money, unless the defense thereto is forgery, fraud, error, want or failure of consideration;
      (3) A summary, executory, probate, partition, mandamus, habeas corpus, quo warranto, injunction, concursus, workmen’s compensation, emancipation, tutorship, interdiction, curatorship, legitimacy, filiation, separation from bed and board, annulment of marriage, or divorce proceeding;
      (4) A proceeding to review an action by an administrative or municipal body; and
      (5) All cases where a jury trial is specifically denied by law.”


author: REDMANN, Judge.

text:
    Mr. and Mrs. Charles E. KENNEDY v. Mr. and Mrs. Dwight G. JOSEPH et al.
    No. 7099.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.

      Charles A. Boggs, Montgomery, Barnett, Brown & Read, New Orleans, for Ora L. Haynes, Henry Harvey Campbell, and U. S. Fidelity and Guaranty Co.
    Gordon Hackman, Boutte, for Dwight Joseph and Johnnie Mae Smith.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   REDMANN, Judge.

Appellants’ pleading titled “Answer, Re-conventional and Third Party Demand” was dismissed on exceptions because it did not, within itself, allege facts constituting a cause of. action and name the third-party defendants (or defendants in reconvention). The pleading did, however, “adopt by reference all portions of the answer” of a named insurer (which alleged the missing elements of a cause of action) and it described as its intended defendants “the other persons involved in the collision detailed in plaintiff’s original petition.” We therefore reverse, holding that the requirements of C.C.P. 891 are met by adopting by reference statements in other pleadings in the same court, C.C.P. 853.

(We deem it immaterial that appellants’ demands against co-defendants were not third-party demands within the definition of C.C.P. 1111, but rather in the nature of interventions, Bellow v. New York Fire & Marine Underwriters, Inc., La.App.1968, 215 So.2d 350. This court’s perhaps contrary decision of Resor v. Mouton, La.App.1967, 200 So.2d 308, has been overruled; Gallin v. Travelers Ins. Co., La.App.1975, 323 So.2d 908.

(And we need not discuss prescription as to the amended pleading appellants later filed, since we have found their initial pleading adequate.)

The judgment is reversed and the exceptions are overruled.


author: PAVY, Judge.

text:
    John C. RICHARD, Plaintiff-Appellant, v. LAMB INDUSTRIES, INC., et al., Defendants-Appellees.
    No. 5271.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 9, 1976.

      Edwards, Stefanski & Barousse, Crowley, by Jean-Pierre Lendais, Lafayette, for plaintiff-appellant.
    Mouton, Roy, Carmouche & Hailey by John A. Bivens, Bean & Rush by James W. Bean, Lafayette, for defendant-appel-lee.
    Davidson, Meaux, Onebane & Donohoe by Dennis L. Doise, Lafayette, for interve-nor-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

Plaintiff filed this tort claim against Lamb Industries, Inc. and its insurer for serious injuries sustained when, as an employee of Hercules Drilling Co., he fell about 21 feet from a rig floor to the ground. The case was tried before a jury which rendered a special interrogatory verdict that plaintiff was not injured as a result of the negligence of any of the employees of Lamb Industries, Inc. Plaintiff has appealed.

Lamb Industries, Inc. operates an oil well casing service. It rents casing tools and equipment and furnishes personnel to effect the casing. In this case, the casing equipment had been brought to the well site about 24 hours before the accident, the casing had been completed and the casing equipment was being unloaded from the rig floor onto the ground. The equipment was to be lifted from the rig floor by means of an air hoist and cable. To get the equipment beyond the rig floor for lowering to the ground it was necessary that the equipment be pushed or guided outward from the center of the rig. Plaintiff and a co-employee were thus pushing or guiding the particular pack of equipment (called bales). To steady or support himself at the edge of the rig floor, he grabbed a guardrail of the rig which, because it was broken, gave way causing plaintiff to lose his balance and fall.

Plaintiff seeks to hold Lamb and its insurer liable under two theories. One is that, in sending the truck to pick up the equipment, Lamb failed to furnish the truck driver with a helper (commonly called swamper) who could assist the driver in using the truck winch to guide and pull the equipment beyond the rig floor as it was raised by the air hoist. Plaintiff argues this would have obviated the necessity of him guiding and pushing the equipment and thus the accident would have been avoided.

The evidence is quite conclusive that the duty of getting the equipment on and off the rig floor is that of the drilling concern. It controls this procedure and makes all decisions as to the method of loading and unloading. There is evidence that personnel of the casing service will sometimes assist in this loading and unloading but this is not the usual case. Any such assistance is voluntary and does not affect the drilling company’s overall responsibility for, and control of, the loading and unloading process.

Leland Bearb, the Lamb truck driver who had gone to get the equipment when the accident happened, testified that swam-pers are usually not furnished in such situations. He stated that the winch is only used in this operation when the driller (the individual second in authority at the rig) requests it. He stated that he was instructed to back his truck up near the rig and wait and that he was told that they would use the winch line to unload some 350’s (heavier and more bulky casing equipment than the bales being used when plaintiff was injured).

Plaintiff testified that he and three other employees were instructed by their boss to go help the truck driver load the equipment onto his truck. He did not testify that there were any discussions with the truck driver about using the winch and the decision to move the bales without the winch was made between himself and his co-employees as a sort of routine matter.

Mr. Arthur Boudreaux, the toolpusher for Hercules and top man in authority at the rig, testified that the truck driver had arrived early and was told to wait until the equipment was moved off the floor and onto the ground. He did not want or expect the use of a winch for moving the bales and stated that he could have had the use of the truck winch if he wanted it.

Lunar Fontenot, one of plaintiff’s co-employees who was assisting in the unloading, testified that no effort was made to use the Lamb truck’s winch.

Mr. A. Davenport, the driller in charge of the crew in which plaintiff was working, stated that they did not seek to use the winch line for removal of the bales and could have brought the bales beyond the derrick floor with an outside line.

We cannot say that the jury erred in not finding Lamb Industries, Inc. negligent for not furnishing a swamper. There is substantial if not convincing evidence that it was never intended to use the winch line. The Hercules official and employees, including plaintiff, did not expect or try to use the winch line. If they had wanted to do so the absence of a swamper would hardly have prevented it. There were ample personnel, including plaintiff and his co-employees, who could have handled the winch line. It was the drilling company’s function, not that of the casing service, to get the equipment off the rig floor and onto the ground.

Plaintiff’s other charge of negligence is that Lamb’s employees broke the guardrail the night before when the casing equipment was loaded onto the rig floor and that it was its (Lamb’s) responsibility to immediately repair the damage and is liable for its broken and unstable condition when plaintiff fell the next night.

Plaintiff presented two versions of how the guardrail was broken. One is that it was improperly used as an anchor for a tail rope (used to guide and control heavy equipment being moved about the rig) and that the excessive strain caused the damage to the guardrail. The other version is that while the equipment was being loaded onto the rig floor it slammed against the handrail and broke it.

Plaintiff arrived at the rig site the previous night after the casing equipment had been put on the rig floor. He claimed that he saw a tail rope tied to the guardrail. Both the toolpusher and driller for Hercules denied that any such use of the handrail would be allowed and stated that they always provided a standard or some other solid structure for anchoring the tail rope. Further, plaintiff’s own witness, Joseph Soileau, who was operating the air hoist in loading the equipment onto the rig floor the previous night, testified that the guardrail was broken, not by using it as an anchor for a tail rope, but when equipment being lifted onto the rig floor hit the guardrail. He was the only witness who had direct knowledge of the guardrail being broken.

None of the ordinary personnel of the Lamb casing crew knew anything about the breaking of the guardrail. They were dismissed as witnesses with a stipulation that no presumption would he had because of their failure to testify. Mr. Wilbert Clement, the toolpusher for Lamb and in charge of the casing crew, did not know that a guardrail had been broken until long after the accident. He stated that any damage to a rig for which Lamb would have been responsible would have been temporarily repaired immediately. The driller or tool-pusher of the drilling company would have been notified and the ultimate permanent repair would have been the drilling company’s concern and cost of repairing billed to the casing service. It appears that many such accidents happen at the rig site and the drilling concern does its own repair and bills the responsible party if the cost is sufficient.

The witness Joseph Soileau was operating the air hoist to lift the equipment from the ground onto the rig floor. He saw the equipment bump against the guardrail and stated that he called to the driller about the incident but could not say that he was heard because of the engine noise generally about a rig. The driller himself had no knowledge about the incident until after the accident. Thus it appears that the only person who was aware of the breaking of the guardrail was Soileau, a Hercules employee.

As previously noted, the loading of the equipment onto the rig floor is the responsibility of the drilling concern. Though there is testimony that personnel of the casing crew sometimes aid in this, it often happens that they are about their own business up on the rig floor during loading. The witness Soileau could not say that the Lamb crew participated in loading the equipment onto the rig floor that night, nor could anyone else. Further, there was a complete lack of evidence as to how or why the equipment did hit the guardrail. There are many reasons why this could have happened other than by negligence of personnel of the casing crew. To say that it must have been the fault of the Lamb personnel, who in this procedure would have been under the direction and control of Hercules Drilling Co. officials, would be mere.speculation.

Accordingly, we find there is ample evi-dentiary basis for the jury’s negative answer to the interrogatory and we will not disturb its verdict. See Canter v. Koehring Co., 283 So.2d 716 (La.1973); Wiley v. Travelers Insurance Co., 300 So.2d 555 (3d Cir. La.App. 1974).

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

Affirmed.


author: BOLIN, Judge.

text:
    Ethel Gertrude Martin COLLINS, Plaintiff-Appellee, v. Herman COLLINS, Defendant-Appellant.
    No. 12783.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.

      Eugene J. Coen, Shreveport, for defendant-appellant.
    John E. Lawhon, Robert P. Waddell, Charles W. Kelly, IV by Robert P. Wad-dell, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Defendant appeals from a judgment annulling a judgment of separation from bed and board previously rendered in favor of the present defendant against the present plaintiff. We affirm.

The issue is whether plaintiff proved the judgment of separation was obtained by “ill practices” entitling her to relief under Louisiana Code of Civil Procedure Article 2004.

On March 14, 1975, Herman Collins filed suit against Ethel Collins for a separation. Upon plaintiff’s allegations that the wife was a nonresident, a curator ad hoc was appointed to represent her. On April 15, 1975, the curator filed an answer in the form of a general denial. The case was called for trial on April 30, 1975, and judgment was rendered in favor of plaintiff Herman Collins.

The evidence bearing upon ill practices was the testimony of defendant’s and plaintiff’s attorneys, which is conflicting. The trial judge in brief written reasons stated: “We accept the plaintiff’s version of the facts”. Since the witnesses testified in open court, the trier of fact was in a much better position to assess their credibility than is this court. We therefore accept plaintiff’s version of the facts.

According to the version of the present plaintiff, Ethel Collins, she came from Houston, Texas to Shreveport, Louisiana and retained her present attorney, on or about April 23, 1975. She returned to Houston after being assured by her attorney he would contact Mr. Collins’ attorney relative to the suit. On or about April 24, 1975 (but in no event later than April 28), this attorney telephoned Herman Collins’ attorney informing the latter that he represented Mrs. Collins and that he would file an answer forthwith; that Mr. Collins’ attorney assured him he would take no further action and he in turn telephoned Mrs. Collins in Houston and informed her of this assurance. On or about April 31, 1975, Mrs. Collins’ attorney noticed in the Legal News that a judgment of separation was rendered against his client; that he immediately contacted Mr. Collins’ attorney who informed him there had been an oversight which he would attempt to correct; that the “oversight” was not corrected and the present suit to annul the judgment as filed on May 6, 1975.

La.C.C.P. Art. 2004 provides:

A final judgment obtained by fraud or ill practices may be annulled.
An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

An ill practice justifying annulment of a judgment encompasses situations where the circumstances under which the judgment is rendered show the deprivation of legal rights of the litigant who seeks relief if the enforcement of the judgment would be unconscionable and inequitable even though no actual fraud or intentional wrong is shown in the procurement of the judgment. Official Revision Comment (b); Alonso v. Bowers, 222 La. 1093, 64 So.2d 443 (1953); Johnston v. Smith, 284 So.2d 149 (La.App.2d Cir. 1973); Spitzkeit v. Robinson, 289 So.2d 846 (La.App. 4th Cir. 1974).

Based upon the factual findings of the lower court, in which we concur, we find plaintiff has borne the burden of proving an ill practice of such character as to justify the annulment of the judgment under the law and jurisprudence as heretofore set forth.

Counsel for appellant points out in his brief filed before this court that subsequent to the rendition of the judgment of annulment in the lower court other proceedings were had; in fact, the record before us was supplemented in order to include these proceedings. However, the appeal is from the judgment of annulment and any actions taken thereafter are not subject to review on this appeal.

For the reasons assigned the judgment of the lower court is affirmed at appellant’s cost.


author: SAMUEL, Judge.

text:
    Mrs. Elvera Wilson ENTREKIN v. Wendall E. ENTREKIN.
    No. 7495.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.
    Writ Refused March 19, 1976.

      Exnicios & Nungesser, Samuel Richard Exnicios, New Orleans, for plaintiff-appellant.
    Anthony A. Fernandez, Jr., Chalmette, for defendant-appellee.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   SAMUEL, Judge.

This is an appeal taken by the wife from a judgment awarding her husband a divorce on the ground of living separate and apart for a period of two years and denying her demand for alimony. Following lodging of the record, we found an apparent defect indicating a possible lack of jurisdiction on the part of this Court. Accordingly, on our own motion we ordered the appellant to show cause why her appeal should not be dismissed.

The case was tried on June 26, 1975, the judgment was rendered and signed June 30, 1975 and notice of the signing of the judgment was mailed to both counsel on June 30, 1975. There was no application for a new trial. On July 25, 1975 appellant filed her motion for appeal which was granted July 28, 1975. The order of appeal required furnishing a bond in the amount of $250. The bond was not furnished until September 26, 1975.

Plaintiff contends her suit is governed by Code of Civil Procedure Article 2087, which allows a ninety day period for the perfection of appeals, as opposed to LSA-C.C.P. Arts. 3943, 3942, 2087(1), 1974 and 1913, which allow a thirty day period of appeal in cases involving divorce, separation and alimony. It is her position that the former article is pertinent here because the issue of fault as it relates to alimony is separate from other issues involved in a divorce proceeding and on this appeal. We do not agree.

The thirty day appeal period is applicable here. We can have jurisdiction in this proceeding only when the appellant has both obtained an order of appeal and has filed the appeal bond within the thirty day period. That thirty day period began to run upon the expiration of the delay for applying for a new trial. As the seven day delay (exclusive of legal holidays) for applying for a new trial commenced to run on July 1, 1975, and as the required appeal bond was not posted until September 28, 1975, the bond clearly was not furnished timely and the appeal must be dismissed for lack of jurisdiction.

For the reasons assigned, it is ordered that the appeal of Mrs. Elvera Wilson En-trekin be, and the same is hereby, dismissed.

Appeal dismissed.

      . Brasher v. Brasher, 309 So.2d 695 (La.App.1975); Malone v. Malone, 282 So.2d 119 (La.1973); Bardon v. Ledoux, 297 So.2d 219 (La.App.1974); Castille v. Bastille, 221 So.2d 834 (La.App.1969).

      . Code of Civil Procedure Articles 3943, 3942, 2087(1), 1974 (as amended by Act 520 of 1974) and 1913.


author: DIXON, J.,

text:
    DIBERT, BANCROFT AND ROSS COMPANY, LTD. v. WESTINGHOUSE AIR BRAKE COMPANY.
    No. 57406.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: Westinghouse Air Brake Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 323 So.2d 482.

Writ denied. We are unable to say that the result is incorrect on the facts found.

DIXON, J.,

is of the opinion the writ should be granted. Not only is the result incorrect, but the court of appeal has not treated defendant’s demand for damages for retention of defendant’s castings, and the demand for attorney’s fees.

CALOGERO, J., dissents from refusal to grant writ.


author: TATE, Justice.

text:
    STATE of Louisiana, Relator, v. Willie ALEXANDER, Jr., Respondent.
    No. 56626.
    Supreme Court of Louisiana.
    Jan. 19, 1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-relator.
    James J. Gleason III, New Orleans, for defendant-respondent.
   TATE, Justice.

The issue before us is whether a grand jury indictment is required to charge a convicted defendant as a fourth-offender for purposes of enhancing his punishment as a multiple offender under La.R.S. 15:529.1. We granted the State’s application to review a trial court ruling which quashed an information so charging the defendant. The court held that a grand jury indictment is required under the circumstances.

The defendant Alexander was initially charged with a simple burglary of April 18, 1975. This crime is a felony punishable by imprisonment at hard labor for not more than nine years. La.R.S. 14:62.

After Alexander’s conviction by the trial jury, the district attorney filed a bill of information charging him as a fourth offender, based on three prior convictions, and praying that he receive an enhanced penalty as a multiple offender under La. R.S. 15:529.1. By that statute, as a fourth offender the defendant is subject to an enhanced penalty up to a maximum of life imprisonment. La.R.S. 15:529.1A(3).

The trial court sustained the defendant’s motion to quash the charge holding that an indictment by grand jury is required because the charge subjected him to the possibility of life imprisonment. In so doing, the court relied upon Article 1, Section 15 of the Louisiana Constitution of 1974. See also La.C.Cr.P. art. 382 (as amended in 1974, to conform with the new constitution) .

The constitutional provision is entitled “Initiation of Prosecution”. It provides:

“Prosecution of a felony shall be initiated by indictment or information, but no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. * * * ”

As will be shown, the constitutional provision was not intended to and does not apply to the institution of enhanced-penalty proceedings, La.R.S. 15:529.1, after a defendant has been convicted of a crime charged. It applies only to the substantive crime with which an accused is initially charged.

The constitutional classification of felonies for “initiation of prosecution” by information or grand-jury indictment respectively, Article 1, Section 15, is thus determined by the legislative penalty provided by the enactment defining the crime and providing for its punishment. This classification is founded upon the general penalty applicable to the substantive crime charged by the initiation of the prosecution for it, not upon any enhanced penalty to which any particular individual might be subject because of his prior convictions.

In the present case, the defendant was charged with the crime of simple burglary. The maximum legislative penalty provided for this felony is imprisonment at hard labor for nine years. La.R.S. 14:62. Therefore, he could be prosecuted for this crime either by indictment or by (bill of) information. Article 1, Section 15, La. Constitution (1974); La.C.Cr.P. art. 382 (1974).

After his conviction, because of his prior convictions, the defendant was subject to an enhanced penalty as a multiple-offender. La.R.S. 15:529.1. Under the statute, the district attorney may file an information charging a defendant, after conviction, as a multiple-offender if prior convictions are known or learned of. This (bill of) information does not charge a crime but is merely a method of informing the sentencing court of the circumstances and requesting an enhancement-of-penalty. State v. Jackson, 298 So.2d 777 (La.1974).

A proceeding to enhance the penalty of a convicted defendant because of prior convictions does not charge him with a crime; it is merely a method of increasing the punishment for second and subsequent offenders. State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), reversed on other grounds 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Hardy, 174 La. 458, 141 So. 27 (1932); State v. Guidry, 169 La. 215, 124 So. 832 (1929).

The decisions cited show that the enhancement of the penalty for habitual offenders convicted of a new felony addresses itself to the sentencing powers of the trial judge after conviction. The post-conviction enhanced-penalty proceedings have no functional relationship to the innocence or guilt of the crime for which prosecution is initiated either by grand-jury indictment or by (bill of) information.

The function of the grand jury is to inquire into offenses and to indict for an offense if the evidence before it so indicates. La.C.Cr.P. arts. 437, 443. The grand jury’s accusatory function has no concern with an enhanced penalty which might be applied should the accused be convicted after trial on the merits of the offense for which indicted.

In this historical, jurisprudential, and statutory context, the constitutional requirement that prosecution for “a crime punishable by life imprisonment”, Article 1, Section 15, be initiated by an indictment by the grand jury is intended only to refer to those legislatively defined crimes which the legislature has classified as punishable by life imprisonment.

For the reasons assigned, our trial brother erred in quashing the information which charged the defendant as a multiple-offender for purposes of enhancing the sentence imposed on him. We reverse such ruling and remand this case for further proceedings in accordance with law.

Reversed and remanded.


text:
    STATE of Louisiana v. William LAVENE.
    No. 57475.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: William Lavene applying for Writs of Certiorari, Prohibition, Mandamus and for Stay Order.

Writ refused. This Court will not ordinarily exercise its supervisory jurisdiction where a right of appeal exists. After sentence upon this felony conviction, defendant may appeal, and among other possible assignments of error, present the argument made in this application that the trial judge erred as a matter of law (under Art. 858, C.Cr.Pr.) when he refused to grant applicant a new trial notwithstanding the alleged newly discovered evidence.

SUMMERS, J., concurs in the writ refusal.