author: BOYER, Judge. McCORD, Chief Judge, MILLS, Judge,

text:
    Kiplan Carlyle OWENS, Appellant, v. CITY OF PENSACOLA, a Municipal Corporation, Appellee.
    No. FF-333.
    District Court of Appeal of Florida, First District.
    March 15, 1978.
    William R. Davenport, Pensacola, for appellant.
    H. Edward Moore, Jr. of Sherill & Moore, Pensacola, for appellee.
   BOYER, Judge.

Appellant constructed two large cardboard signs saying “Speed Trap Ahead” and placed them on both sides of a Pensacola intersection at which he had observed police officers using radar equipment. Moments later, he was arrested on a charge of “obstructing a police officer in the performance of his duties”, a violation of Section 843.02, Florida Statutes. After an apparently heated exchange with one of the officers, appellant was put in the back of a police cruiser and taken to the city jail, fingerprinted, and booked. He was later released on bail.

At his arraignment, appellant pleaded not guilty and made a motion to dismiss, to which the state did not file a traverse. The county judge dismissed the charges, finding that appellant’s acts did not constitute obstruction as a matter of law. Appellant then sued the City of Pensacola for false arrest and imprisonment and malicious prosecution. After appellant presented his case at that trial the circuit judge directed a verdict in favor of the city.

Appellant now contends on appeal that the trial court erred in taking the case from the jury. Appellee urges that there were no disputed issues of fact and the sole matter for the trial court’s determination was whether the police officers had probable cause to believe that an offense had been committed. We agree with appellant and reverse.

In Priest v. Grover, 289 So.2d 767 (Fla. 2nd DCA 1974) an appeal from a final judgment entered on a directed verdict for the defendant in a malicious prosecution action, our sister court of the Second District stated:

“It is well settled that ‘in order for probable cause to exist the contenance of the situation must be such that a prudent man would set in motion the forces of a criminal proceeding. And, where it would appear to a “cautious man” that further investigation is justified before instituting that proceeding, then liability may attach for the failure to do so.’ Liabos v. Harman, Fla.App.2d 1968, 215 So.2d 487.
“The question of probable cause of lack thereof is a mixed question of law and fact. If the facts relied on to prove a lack of probable cause are in dispute it becomes a question to be determined by a jury. Conversely, if the facts are admitted or uncontradicted, it is solely a question of law. Glass v. Parrish, Fla.1951, 51 So.2d 717; Liabos v. Harman, supra.” (289 So.2d at pages 768-769)

In Oosterhoudt v. Montgomery Ward & Company, Inc., 316 So.2d 582 (Fla. 1st DCA 1975) this court reviewed a final summary judgment entered in favor of the defendant in an action based upon false imprisonment and malicious prosecution. Although we there held that the defendant, the proprietor of a store, was properly determined not to have been guilty of false imprisonment and was well within his bounds in detaining the plaintiff for investigation, we specifically rejected the so-called “majority view” that it is the function of the court and not the trier of fact to determine the question of probable cause (in malicious prosecution actions), recognizing the basis of the majority view to be apprehension that the question of probable cause could not be entrusted to a jury. In that case we said:

“ * * * Under such circumstances, although, as we have above held, appellee was well within its bounds to detain appellant for investigation, we think that under the circumstances revealed by the proofs of a reasonable and material issue as to probable cause for the subsequent prosecution was presented which should have been submitted to a trier of fact and not resolved by the court on summary judgment.” (316 So.2d at page 584)

Certiorari was sought in, and denied by, the Supreme Court of Florida. (Montgomery Ward & Company, Inc. v. Oosterhoudt, 333 So.2d 463 (Fla.1976).)

The distinction drawn in our Oosterhoudt decision between false imprisonment and malicious prosecution was based upon the rights of a merchant to temporarily detain for investigation one suspected of shoplifting. There is a clear distinction between temporary detention for investigation and an arrest as was accomplished sub judice.

In City of Jacksonville v. Walton, 318 So.2d 546 (Fla. 1st DCA 1975), a false arrest and false imprisonment case, this court stated:

“Appellants and Appellee agree that the test in determining whether there existed reasonable ground to arrest without a warrant in the case sub judice is the sufficiency of the knowledge by the arresting officer, put to the test of what a reasonable man knowing all the facts within the knowledge of the officer, would have believed under the circumstances.
“The Supreme Court of this State in the case of State of Florida v. Outten, 206 So.2d 392, defined ‘probable cause’ as follows:
‘The facts constituting probable cause need not meet the standards of conclusiveness and probability required of the circumstantial facts upon which conviction must be based. The sufficiency of the officer’s knowledge is not to be judged by an analysis of the effect of each isolated circumstance. Rather, it is to be measured by the test of what a reasonable man would have believed had he known all of the facts known by the officer.’

“This test of what a reasonable man, possessed of the knowledge of the police officer, would have believed was followed also in the cases of Russell v. State, 266 So.2d 92 (3d, Fla.App.); Hardy v. State, 276 So.2d 536 (4th, Fla.App.); State v. Knapp, 294 So.2d 338 (2nd, Fla.App.). “Mr. Justice Powell of the Supreme Court of The United States, in the case of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), stated:

‘The standard for arrest is probable cause, defined in terms of facts and circumstances “sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” ’
“In the case sub judice it is quite obvious that the jury determined and did find that the arresting officers, with the knowledge of all the facts, when viewed in the light of what a reasonable man would believe, were not justified in the arrest of Plaintiff-Appellant. From our review of the transcript of the trial we can find nothing to justify our finding that the jury’s verdict was against the manifest weight of the evidence.” (318 So.2d at pages 547-548)

In that case, in a special concurring opinion, it was further stated:

“ * * * Hindsight is much better than foresight and it is frequently easy upon meditation and cogitation to decide that there was a better alternative to a prior course of action. Police officers seldom enjoy the luxury of an opportunity to meditate before acting. Their actions must, of necessity if they are to be effective, be swift. (See Price v. Gray’s Guard Service, Inc., Fla.App. 1st 1974, 298 So.2d 461) However, hectic as it may be the requisites of probable cause must be satisfied. (See Russell v. State, Fla.App. 1972, 266 So.2d 92)” (318 So.2d at page 548)

Upon further considering the point on a petition for rehearing, which was denied, we observed:

“Appellants, in their petition for rehearing, also cite to us Porter v. State, Fla. App. 3rd 1974, 302 So.2d 481, wherein our sister court of the Third District said:
‘ * * * Whether probable cause existed to make the arrest is to be determined from the facts and circumstances existing at the time viewed through the eyes of the arresting officer; that is, what a reasonable man, knowing all of the facts within the cognizance of the officer, would have believed under the circumstances.’
“With that principle of law we are in total agreement. It fits like a glove ap-pellee’s case. * * * ”
* :}: * 4. H: *
“Appellants finally refer us to City of Miami v. Nelson, Fla.App. 3rd 1966, 186 So.2d 535, certiorari denied 194 So.2d 621, particularly the recital therein to the effect that where there is no dispute in testimony about the facts constituting the reasonable ground for belief that a felony has been committed, that question is for the court to decide. We take no issue with the holding in that case as applied to the facts sub judice. (See however Oosterhoudt v. Montgomery Ward and Co., Fla.App. 1st 1975, 316 So.2d 582).” (318 So.2d at page 549)

In Food Fair Stores, Inc. v. Kincaid, 335 So.2d 560 (Fla. 2nd DCA 1976) the Second District Court of Appeal considered a case factually similar to that involved in our Oosterhoudt decision. (Oosterhoudt v. Montgomery Ward & Company, Inc., supra) There our sister court, as did we in Oosterhoudt, held that Florida Statute 901.34 (formerly F.S. 801.022) insulated a merchant from liability for false arrest because of a temporary detention for investigatory purposes of one suspected of shoplifting. However, as to malicious prosecution, that court, while recognizing the existence of our opinion in Oosterhoudt v. Montgomery Ward & Company, Inc., paid lip-service to Section 673 of the Restatement of Torts and to the annotation appearing at 87 ALR 183 but nevertheless held that the trial judge did not err upon committing the entire question of probable cause to the jury.

Since the case sub judice does not involve a merchant and therefore does not involve application of Florida Statutes 901.34 the cases above cited do not afford protection to the appellee on the false arrest charge. Probable cause, therefore, in this case, its definition and application, is the same as that involved in malicious prosecution and false imprisonment cases.

Our Oosterhoudt decision thereby requires that the issue of probable cause be submitted to the jury for determination. However, whether or not we follow Ooster-houdt it is also clear that a cautious, prudent or reasonable person would have investigated further whether the exercise by appellant of his right of freedom of speech and expression pursuant to the First Amendment to the Constitution of the United States constituted a criminal offense justifying his arrest. In short, if probable cause is an issue of law to be resolved by the trial judge it should have been resolved, under the facts of this case, in favor of appellant. If, on the other hand, probable cause is an issue to be resolved by the jury (as we held in Ooster-houdt) then the trial judge erred when he directed a verdict against appellant. In any event reversal is required.

In order to facilitate its review, we hereby certify to the Supreme Court of Florida the question here posed and resolved as a question of great public interest, all pursuant to Fla.App. Rule 2.1, subd. a(5)(b).

Reversed and remanded.

McCORD, C. J., concurring specially, and MILLS, J., dissenting.

McCORD, Chief Judge,

concurring specially.

Were it not for this Court’s previous opinion in Oosterhoudt v. Montgomery Ward & Company, Inc., 316 So.2d 582 (Fla. 1 DCA 1975), cert. den. 333 So.2d 463 (Fla.1976), I would affirm. Here the facts going to the question of probable cause are clear and undisputed. Thus, the question for the jury is not a factual one but is purely a question of whether or not under these facts the officer had probable cause to believe that appellant had violated § 843.02, Florida Statutes, which provides in pertinent part as follows:

“Whoever shall obstruct or oppose any such officer, ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, . . . ”

I disagree with Judge Boyer’s opinion in his statement that “ . . . it is also clear that a cautious, prudent or reasonable person would have investigated further whether the exercise by appellant of his right of freedom of speech and expression pursuant to the First Amendment to the Constitution of the United States constituted a criminal offense justifying his arrest.” The Constitution does not authorize violation of a constitutionally valid law under the guise of pursuance of one’s constitutional rights. In my view, it is clear that a cautious, prudent or reasonable person would have considered that appellant had violated the above statute and would not have considered that further investigation was necessary. Not only did the officer consider the statute had been violated, but the state attorney who filed the information apparently considered it had been violated. Officers of the law are not lawyers and should not be held to the accountability of lawyers in relation to probable cause.

I agree with the following statement from the opinion of the District Court of Appeal, Second District, in Food Fair Stores, Inc. v. Kincaid, 335 So.2d 560 (Fla. 2 DCA 1976):

“A comprehensive annotation at 87 A.L.R. 183 entitled ‘Probable cause or want thereof, in malicious prosecution action, as question of law for court or of fact for jury’ confirms this view. In his summary at page 186, the annotator states in part:
‘The rule that the question of probable cause in an action for malicious prosecution is for the court, and not for the jury, although undoubtedly anomalous in that it substitutes the judgment of the court for that of the jury as to the reasonableness of the defendant’s conduct in the light of the admitted or established facts and beliefs, is nevertheless, except in a few jurisdictions, established, in theory at least, by the overwhelming weight of authority. The rule in its origin is probably traceable to the apprehension of the courts that if the question of probable cause were left to juries, they might not sufficiently safeguard the rights of defendants, and thus might discourage the performance of a public duty of bringing complaints against persons they believe to have committed offenses.’
The annotation lists Florida among those jurisdictions supporting the majority view, and our study of Florida cases supports this conclusion. In Stone v. Hamic, Fla.App.2d 1966,189 So.2d 908, this court stated:
‘ . . . When the facts relied upon to show probable cause are in dispute, their existence is a question of fact for the jury to resolve; the legal effect of such facts, when found or admitted to be true, is a question of law for the court to decide . . . .’
See also Glass v. Parrish, Fla.1951, 51 So.2d 717; Lewton v. Hower, 1895, 35 Fla. 58, 16 So. 616; Cold v. Clark, Fla. 1965, 180 So.2d 347; contra Oosterhoudt v. Montgomery Ward & Company, Inc., supra. ”

Because of this Court’s previous ruling in Oosterhoudt, I must concur in the judgment of Judge Boyer’s opinion. I also concur in certification to the Supreme Court of Florida the question involved in this case as a question of great public interest.

MILLS, Judge,

dissenting:

I dissent. I would affirm the trial court.

It has been said that to err in human; to forgive divine. I have erred. I now seek to amend the error. I beg forgiveness.

I concurred in the opinion written in Oosterhoudt v. Ward, 316 So.2d 582 (Fla. 1st DCA 1975), when I should have dissented. In my judgment, Oosterhoudt is premised on several inaccurate statements. 87 A.L. R.2d 183 is quoted as stating that it is the function of the court and not the trier of fact to determine the question of probable cause in malicious prosecution actions. It is further stated that although this is the overwhelming weight of authority no Florida decision on the point can be found.

In fact, at pages 188-189 of 87 A.L.R.2d it is stated:

“The broad general principle that in the determination of the question of probable cause in malicious prosecution actions, the function of the jury is more limited than that ordinarily afforded it in civil actions in general, and that the function of the court is correspondingly enhanced, is at least theoretically recognized by the great majority of the courts, as indicated by their announcement by one or more of the following rules: (1) that, on undisputed or admitted facts, the question of probable cause is one entirely for the court to determine, or, as otherwise stated, that what facts constitute probable cause is a question of law for the court; (2) that whether a particular fact exists is a question for the jury, or, as it is stated, that disputed facts are for the jury’s determination; and (3) that the existence of probable cause is a mixed question of law and fact, a principle which has been interpreted to indicate no more than a combination of (1) and (2).”

At page 189, three Florida cases are cited as following the above statements of law. Glass v. Parrish, 51 So.2d 717 (Fla.1951), one of them, states the law of Florida:

“ . . . What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court; the latter for the jury. This subject must necessarily be submitted to the jury when the facts are in controversy; the court instructing them what the law is. . . .”

See subsequent cases of Stone v. Hamic, 189 So.2d 908 (Fla. 2d DCA 1966), and Food Fair Stores, Inc. v. Kincaid, 335 So.2d 560 (Fla. 2d DCA 1976).

There was no factual dispute in Ooster-houdt. The trial court properly determined the legal effect of the undisputed facts and we should have affirmed. For the above reasons, I would now recede from Ooster-houdt.

There is no dispute concerning the facts of the case before us. The trial court properly granted an involuntary dismissal in favor of defendant. I would affirm.

I agree with the majority that the question involved in this case be certified to the Supreme Court as a question of great public interest.

      . The correct citation of the Annotation is 87 A.L.R.2d 183.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Stephen Aloysius BATEY, Appellant, v. STATE of Florida, Appellee.
    No. GG — 284.
    District Court of Appeal of Florida, First District.
    March 16, 1978.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant was convicted for the offenses of burglary and grand larceny. Appellant urges that the trial court erred in instructing the jury on flight, over his objection. Further, appellant contends reversal is required because of certain allegedly improper and prejudicial comments made by the prosecutor during closing arguments.

We find no reversible error and thus affirm the judgment and sentence.

The facts presented at trial were sufficient to find the existence of flight and other circumstances indicating appellant’s guilt. Therefore, the flight may be considered as a circumstance of guilt under an appropriate instruction. Proffitt v. State, 315 So.2d 461 (Fla.1975); Martinez v. State, 346 So.2d 1209 (Fla. 3d DCA 1977); Palmer v. State, 323 So.2d 612 (Fla. 1st DCA 1975), and cases cited therein. Such instruction is not improper as a judicial comment upon the evidence.

We have considered the comments by the prosecutor in his closing argument and do not find that they require reversal.

Accordingly, the judgment and sentence are AFFIRMED.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    NORTH MIAMI GENERAL HOSPITAL, INC., Petitioner, v. OFFICE OF COMMUNITY MEDICAL FACILITIES, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, Respondent.
    No. HH-61.
    District Court of Appeal of Florida, First District.
    March 17, 1978.

      Robert M. Ervin and Robert J. Angerer, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, Loyd M. Starrett, Barry B. White and Charles J. Beard of Foley, Hoag & Eliot, Boston, Mass., for petitioner.
    Eric Hanugdahl, District II Counsel, for respondent.
   MASON, ERNEST E. (Circuit Judge, Retired), Associate Judge.

Petitioner, North Miami General Hospital, Inc., hereinafter referred to as the Hospital, has filed its petition for review of the final agency action of the Office of Community Medical Facilities, Department of Health and Rehabilitative Services of the State of Florida, which action determined that the petitioner’s proposed purchase of a total body computerized Axial Tomography Scanner (CAT Scanner) would not be favorably recommended to the U.S. Department of Health, Education and Welfare (HEW) for reimbursement for its costs in connection with such purchase, as provided under Section 1122(a) of the Federal Social Security Act.

We have jurisdiction to review such agency action by virtue, of Article V, Section 4(b) of the Florida Constitution (1973 Revision of said Article) and Section 120.68, Florida Statutes (1976 Supplement).

In October of 1976, the Hospital, a nonprofit Florida corporation, notified the respondent that, pursuant to federal law, it intended to purchase and install a CAT Scanner at a cost of approximately $600,000 and requested respondent’s favorable recommendation to HEW that the latter reimburse the Hospital for certain costs in connection with such purchase.

In January of 1977, respondent, which is the “designated planning agency” for the State of Florida under Section 1122 of the Social Security Act, notified the Hospital that it would not favorably recommend the proposed expenditure to HEW. The Hospital timely appealed the decision and requested a hearing as prescribed by Section 381.494(6)(e), Florida Statutes (1975). A hearing was held in April of 1977 before the hearing officer designated by the Division of Administrative Hearings. In July, the hearing officer filed a recommended order which included findings of fact and conclusions of law. He recommended that petitioner’s appeal be denied. His recommended order was adopted by respondent, hence this appeal to this court.

Under the provisions of the Social Security Act, participating health care providers, such as petitioner Hospital, are reimbursed by the Federal Government for their costs for providing certain types of health care services to eligible beneficiaries. To assure that federal funds are not used to support unnecessary capital expenditures made by health care facilities, Section 1122 requires HEW to exclude from reimbursements paid to health care providers expenses related to capital expenditures which exceed $100,000 and which are found by a state’s “designated planning agency” not to be:

“. . . consistent with the standards, criteria or plans developed pursuant to the Public Service Act (or the Mental Retardation Facilities and Community Mental Health Centers Construction Act of 1963) to meet the need for adequate health care facilities in the area covered by the plan or plans so developed” 42 U.S.C.A. § 1320a-l(b).

Pursuant to Section 1122, HEW entered into an agreement with the State of Florida whereby respondent Department was named as the designated planning agency for the State and given final authority to determine whether a proposed capital expenditure was consistent with the State’s standards, criteria or plans developed pursuant to the Public Health Service Act of the U.S. Congress (42 U.S.C.A. § 246). Under the agreement, if the Department (respondent herein) finds that a proposed capital expenditure does not conform with such standards, criteria or plans, HEW will not reimburse a health care provider for such capital expenditure.

Under the federal law and the agreement made with the State to determine whether a proposed capital expenditure does or does not conform, the Department is required to utilize the following general criteria:

“(a) Whether the proposed project is needed or projected as necessary to meet the needs in the community in terms of health services required: Provided, that projects for highly specialized services (such as open-heart surgery, renal transplantation, or radiation therapy) which will draw from patient population outside the community in which the project is situated will receive appropriate consideration;
“(b) Whether the proposed project can be adequately staffed and operated when completed;
“(c) Whether the proposed capital expenditure is economically feasible and can be accommodated in the patient charge structure of the health care facility or health maintenance organization without unreasonable increases; and
“(d) Whether the project will foster cost containment or improved quality of care through improved efficiency and productivity, including promotion of cost-effective factors such as ambulatory care, preventive health care services, home health care, and design and construction economies, or through increased competition between different health services delivery systems.”

The parties have stipulated that the sole factual issue for consideration was:

“. . . whether existing CAT-Scan facilities were being sufficiently used to justify the need for an additional scanner in the Miami area.”

Thus, the single issue before the respondent agency was whether there existed a need in the community for petitioner’s proposed CAT Scanner. There was no issue, evidence or argument that the proposed purchase would be inconsistent with other criteria.

The Hospital operates a community general hospital licensed for 334 beds with the full range of facilities and services normally provided by general hospitals, and is adequately staffed with specialists in all spe-ciality fields including those specialists and technicians qualified to operate and analyze the results of scans made by this particular type of diagnostic instrumentality and procedure.

The evidence before the hearing officer confirms that next to the discovery of X-ray itself, the CAT Scanner is the most revolutionary development in radiology ever devised, that the use of this scanner to diagnose a patient’s illness is safer, less harmful, more accurate and often less costly to use than the more traditional diagnostic procedures it replaces. Furthermore, with a CAT scan many inpatient procedures can be done on a much less costly outpatient basis, thus saving money to the patient and room space in the hospital to service other patients. Finally, in many cases, exploratory surgery can be avoided by the use of a CAT scanner.

Bearing in mind that the sole factual issue before the hearing officer, as stipulated by the parties, was whether, at the time of petitioner’s request for approval by the respondent of the purchase of the particular scanner in question, there were existing CAT scan facilities in the community being sufficiently used to justify the need for this additional scanner in the Miami area, our decision must turn upon the question as to whether there was sufficient, competent and substantial evidence before the hearing officer to support his finding of the lack of need for such additional scanner, and the final order of respondent Department adopting the hearing officer’s recommended order. The resolution of the issue as to the entitlement of the petitioner to Federal financial aid is therefore community need— not the desire of the Hospital to have such a scanner, nor even its need or convenience of having and using the same.

The record discloses that at the time of petitioner’s application, it generally transported its inpatients to Mt. Sinai Hospital— some 12-15 miles away — for CAT scans and that the process of transporting a patient is slow and its cost high. That often nurses and oxygen therapists must accompany the patient. That often three or four days transpire before a written report is received. That often the Hospital must keep a patient in its hospital for two or three days to await the availability of the Mt. Sinai scanner. That in some cases patients who should receive the scans do not because they are too ill to transport. There was also testimony that every hospital with over 300 beds should have its own CAT Scanner to meet community needs. That there are only two CAT scan facilities near the Hospital which do not meet the utilization rate of 2400 scans per year. The Hospital does not refer its patients to them because it questions the accuracy and reliability of their scan results. Respondent did not investigate the reasons for their low utilization rate, nor take into account any factors which might explain it.

On the other side of the coin, there was testimony that at the time of the denial of the Hospital’s application there were nine CAT Scanners operational in Dade County, four in close proximity to the Hospital. Also, there was testimony that three more CAT Scanners had been approved for installation in Dade County at the time of respondent’s final order herein denying petitioner’s application. There was testimony in the record that CAT Scanners can reasonably perform 2400 scans per year based upon a 40 hour work week. Also, that three of the existing CAT Scanners in Dade County are underutilized, based upon the 2400 yearly capacity.

In reviewing the Hospital’s proposal, respondent considered what it determined to be the low level of utilization of existing CAT Scanners in Dade County, the number of such scanners already operational in the county, and the number of CAT Scanners already approved by the Department for future installation in the county, and, based upon these factors, determined that there was no community need for additional CAT scanning equipment.

Our responsibility in reviewing the Department’s final order herein is limited to the determination as to whether there exists in the record herein sufficient competent substantial evidence to support such order. That is to say, does the competent evidence before the hearing officer, which constituted the basis of respondent’s order, substantially support the Department’s conclusion that existing CAT scan facilities were being insufficiently used so as not to justify the need for an additional scanner in the Miami area.

Petitioner complains of the criteria used by the Department in arriving at its conclusion that existing scanners were being underutilized. That criteria being that a minimum of 2400 procedures per year per scanner is a reasonable requirement to be met before additional scanners should be approved. Its position in this regard is three-fold. First, it asserts that the 2400 figure is not supported by sufficient evidence to be used as a criteria. Second, that other than such 2400 scan standard applied in this case, the Department did not appear to have any state criteria for determining whether an application should be approved or not. Third, that such criteria of 2400 procedures per scanner per year was not formally promulgated under Section 120.54, Florida Statutes (1976 Supplement).

The Hospital also asserts that it has been denied “administrative” equal protection because it says, two other similarly situated hospitals had their scanner purchases approved during the same time that respondent had its application under consideration. That this inconsistency resulted because of the use of different utilization rates applied to the several applications and the absence of a promulgated and uniformly applied criteria relating to the means by which community need for scanners could be determined. It argues that such lack of uniformity constitutes an abuse of discretion requiring reversal herein under the provisions of Section 120.68(12), Florida Statutes (1976 Supplement).

We agree with these contentions of the Hospital and reverse. First of all, there was insufficient substantial and competent evidence before the hearing officer to justify the figure of 2400 procedures per year per scanner as the basis for determining that existing scanners were or were not underutilized. The only testimony before the hearing officer to support this conclusion was the hearsay statements of two physicians and two exhibits consisting of two unauthenticated reports, the first of which was purportedly prepared by the Office of Technology Assessment, a congressional board, for use by a U. S. Senate committee, and referred to by one of respondent’s witnesses as a “second draft” of the report, with no indication that it was a final report prepared by that Board as its final assessment and recommendation as to the use of CAT Scanners, or to their utilization rate. The other exhibit is a report purportedly prepared by J. Lloyd Johnson Associates in 1976, likewise unauthenticated as to its veracity or trustworthiness. Both of these exhibits were hearsay, properly objected to by petitioner’s counsel. Certainly such evidence does not meet the test of “substantial competent evidence” sufficient to sustain respondent’s order herein.

Second, other than this 2400 per unit per year test, respondent Department had no other standard or criteria by which to measure CAT Scanner utilization, nor any state criteria for determining whether an application for such a scanner should be approved. Under its agreement with HEW, the Department is required to adopt standards, criteria or plans consistent with the general criteria prescribed by Section 1122 of the Social Security Act as hereinbefore set out in this opinion. If the Department finds that a proposed capital expenditure does not conform to these standards, criteria or- plans, HEW will not reimburse a health care provider. To deny a health care provider’s application for reimbursement under Section 1122, the respondent was required to make a determination that the applicant’s proposed expenditure was not “consistent with the standards, criteria, or plans developed pursuant to the Public Service Act * * * to meet the need for adequate health care facilities in the area covered by plan or plans so developed.” 42 U.S.C.A. Section 1320a-l(b). This was not done by respondent agency. In fact, there is no evidence that the Hospital’s proposed expenditure does not so conform, nor did the respondent provide any basis for a finding that the Hospital’s proposed capital expenditure was not consistent with the federal standards, much less any previously promulgated state standards, criteria or plans. Its primary basis for denial of petitioner’s application was that two CAT Scanners in the vicinity of the Hospital were not being utilized at or reasonably near the minimum determined usage of 2400 procedures per year and that an additional scanner had already been approved for installation at another hospital.

In the absence of the promulgation of state standards, criteria or plans, the only way that the Department’s final order could possibly be sustained would be to find that the Hospital’s application did not conform to the standards, criteria or plans prescribed by the provisions of Section 1122 of the Social Security Act. One of these standards is quality of care. The Department admitted that it did not consider quality of care in reviewing the Hospital’s application. Another federal criteria is that the proposed expenditure would foster cost containment through improved efficiency and productivity. The hearing officer found that the Department did not produce evidence that “the cost of additional CAT Scanners was weighed against the cost of other desirable medical equipment or facilities before the determination to recommend disapproval” of the Hospital’s application was made. However, the Hospital produced evidence that patient costs could be reduced by utilization by it of a CAT Scanner.

Furthermore, the hearing officer found that “no specific criteria upon which the determination of need is to be predicated is provided by the regulations”. This finding was made in the face of the federal standard that requires a determination that a proposed project is to be judged on the basis of need in terms of health service required, and that there must be state standards or criteria to effect such determination. So, the hearing officer, whose recommendation was incorporated in the Department’s final order based his recommendation upon the use of a formula of 2400 procedures per unit per year, which formula was never officially adopted by the Department prior to its consideration of the Hospital’s application. Having found that this formula for utilization of scanners is not supported by substantial competent evidence, there exists in this record no basis for the Department’s denial of the Hospital’s application.

Even if the 2400 formula is a proper measurement of utilization, it was error to use it in this case because it had never been officially adopted and promulgated as required by Section 120.54, Florida Statutes. For that reason alone we would be compelled to reverse the Department’s order of denial of the petitioner’s application.

Finally, the respondent’s order must be reversed because the record reflects that during the period of time under which it had petitioner’s application under consideration, the Department, as a result of a hearing officer’s recommendation, granted an application to another Dade County hospital and in so doing found that the 2400 scan per year per machine formula or standard was not a reasonable basis for determining community need in Dade County. In that proceeding, the hearing officer found that the Department had not adopted any criteria for determining community need for scanners. There, the hearing officer found that the mere fact that other facilities in the area were not all utilized up to the 2400 scan per year standard was not by itself sufficient to deny a hospital’s application as there were reasons for such underutilization apart from case load.

We hold that such. inconsistent results based upon similar facts, without a reasonable explanation, violate not only express provisions of the Administrative Procedure Act (Chapter 120, F.S.), but are violative of the equal protection guarantees of both the Florida and United States Constitutions. For this reason, in addition to the other reasons set forth herein, we find that the respondent’s order denying petitioner’s application should be reversed.

The Order of the respondent denying petitioner’s application for federal reimbursement is quashed.

Reversed and remanded with directions to respondent to enter an order granting petitioner’s application.

McCORD, C. J., and BOYER, J., concur.


author:
DIXON, Justice.
      SANDERS, Chief Justice, MARCUS, Justice, DENNIS, Justice. TATE, Justice,

text:
    James L. HOLTZCLAW v. FALCO, INC., et al.
    No. 59536.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    On Rehearing March 9, 1978.
    John T. Campbell, Campbell, Campbell & Johnson, Minden, for plaintiff-applicant.

      Steven H. Beadles, Cook, Clark, Egan, Yancey & King, Roland J. Achee and Frank M. Dodson, Nelson & Achee, Ltd., Shreveport, for defendants-respondents.
    Stephen T. Victory, Larry M. Roedel, Lis-kow & Lewis, amicus curiae, for La. Assoc, of Defense Counsel in support of Hartford Accident & Ind. Co.
   DIXON, Justice.

This is an action by the lessee of an Exxon service station which was severely damaged as a result of an intersectional collision allegedly caused through the joint negligence of defendants Garland Oiler and Doyle Millican. The accident occurred when the car and boat trailer driven by Oiler was struck while crossing an intersection controlled by a flashing red and amber traffic signal by a petroleum transport truck owned by Falco, Inc. and driven by Millican. After striking the car, the truck hit the service station. The traffic signal flashes red in the direction traveled by Oi-ler and amber in the direction traveled by Millican. Prior to the institution of this action, Hartford Accident and Indemnity Company, liability insurer of Oiler, entered into compromise agreements with Exxon, Falco and Fireman’s Fund Insurance Company (insurer of the station building), exhausting its $5000 policy limits. Plaintiff brought this suit for loss of profit and physical damage to movable property naming both drivers, Falco, Commercial Union Insurance Company (Faleo’s liability insurer) and Hartford.

After trial by jury, judgment was rendered in favor of plaintiff and against defendants Oiler and Hartford in the amount of $4500, and against plaintiff in his action against Millican, Falco and Commercial Union. The Second Circuit Court of Appeal reversed that part of the judgment awarding damages against Hartford but affirmed it in all other respects. Holtzclaw v. Falco, 341 So.2d 1267 (La.App. 2d Cir. 1977). We granted plaintiff’s application for certiorari to review this judgment.

Plaintiff’s argument that the lower courts erred in denying the liability of Milli-can, Falco and Commercial Union and in determining the measure of damages to be awarded against Oiler is without merit. The findings of the jury are supported by the evidence in the record.

The Court of Appeal, in reversing the trial court’s judgment against Hartford, relied upon our decision in Richard v. Southern Farm Bureau Casualty Insurance Co., 254 La. 429, 223 So.2d 858 (1969). This court held, in the Richard case, that “. . . where there are multiple claims arising out of an accident, the liability insurer, in entering compromise settlements pursuant to the right accorded it under the provisions of the policy, may exhaust the entire fund and thus one or more of the injured parties may find that they have little or no recourse against such insurer. ...” 223 So.2d 858, 861.

The court in the Richard case followed the general rule in the United States, as found in encyclopedias and insurance treatises, and, probably because of the uniform jurisprudence of other states, and because compromises are favored in the law, dismissed plaintiff’s argument that, since liability policies were issued “for the benefit of all injured persons,” all injured persons were granted a fixed proportional share in the proceeds, which became available after the liability of the tortfeasor was established.

The court in Richard seemed to be swayed to some extent by the supposed lack of a judicial remedy for an insurance company which wanted to settle some of multiple claims from an accident. The “dilemma” presented because our concursus statute requires a fund-holder to admit liability when depositing the fund in a personal injury case is not present in the case before us, which is a contest over property damage coverage, not personal injury coverage. Only in eases of death or physical injury must an insurer admit liability in a concur-sus proceeding. C.C.P. 4652.

The other possible judicial remedy by which an insurer in a multiple claims case might adequately protect itself — a declaratory judgments action — was summarily dismissed by the court in the Richard case because it had held, in Burton v. Lester, 227 La. 347, 79 So.2d 333 (1955), that a declaratory judgments action was unavailable in tort suits. The important change in the declaratory judgments act by the adoption of the Code of Civil Procedure (specifically Art. 1871) by Act 15 of 1960 was ignored. The redactor’s comment discusses in full the legislative overruling of Burton v. Lester, supra. Today, unless a reason can be found in C.C.P. 1871-1883, a declaratory judgment action cannot be defeated simply because it arises out of a tort.

Two important considerations stand opposed to the result in the Richard case. The first is the public policy of the State of Louisiana with respect to contracts of liability insurance. Through the years, that policy, first announced by the court, then repeatedly enacted by the legislature, has become firmly fixed in Louisiana law.

The public policy of the State of Louisiana has been expressed in the Direct Action Statute (R.S. 22:655) since it was amended by Act 475 of 1956, a legislative expression of principles previously enunciated and almost uniformly followed by the Louisiana Supreme Court. Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351 (1942); West v. Monroe Bakery, 217 La. 189, 46 So.2d 122 (1950); see Jones v. Mid-South Insurance Co., 358 F.2d 887 (5 Cir.1966). Act 253 of 1918 was the predecessor of the Louisiana Direct Action Statute. It was remedial legislation, copied after acts of New York State and Massachusetts. 11 Tul.L.Rev. 443 (1936-1937). Automobile liability policies usually provided that the insolvency of the insured released the insurance company from payment; the act of 1918 provided that it should be illegal for any company to issue any liability policy unless it contained a provision to the effect that the insolvency of the insured should not release the company, and if the insured did become insolvent an action could be maintained against the insurance company.

The 1929 Court of Appeals case of Edwards v. Fidelity and Casualty Co., 11 La. App. 176, 123 So. 162 (Orleans Cir. 1929), held that although the 1918 act allowed an action against the insurer of an insolvent “within the terms and limits of the policy,” the action could be maintained by the injured person in spite of the fact that the insured had failed to give notice of the accident to the insurer, as requested by the terms of the policy. The Edwards case also held that an unsatisfied judgment against the insured was prima facie proof of his insolvency.

The legislature responded with Act 55 of 1930, further remedial legislation. The act incorporated part of the holding of the Edwards case, stating that an executory judgment against the insured was prima facie evidence of his insolvency, and created a “right of direct action against the insurer company,” to be brought against the insurer alone, or against the insurer and the insured, “jointly and in solido.”

The public policy of the State of Louisiana, with respect to the direct action statute, was recognized by the Louisiana Supreme Court in Davies v. Consolidated Underwriters, supra:

“. . . That statute gives the injured party an immediate right of direct action against the insurer of the party responsible for the injuries. The statute expresses the public policy of this State that an insurance policy against liability is not issued primarily for the protection of the insured but for the protection of the public. . . . ” 6- So.2d 351, 357.

The Davies case was followed in 1950 by West v. Monroe Bakery, supra, which repeated the public policy statement from the Davies case, and found that the protection of the injured person was the primary purpose of the remedial legislation. The Monroe Bakery had failed to give notice to its liability insurer for more than a year after the accident. The direct action statute provided that the injured person “shall have a right of direct action against the insurer company within the terms, and limits of the policy . . . ” Act 55 of 1930. As against the defense of no notice by the insured, the Louisiana Supreme Court found that it was not within the injured person’s power to give notice as required by the policy, and that the injured third party could not be divested of his right of action by the failure of the insured to comply with the statutory requirement of notice.

The other important consideration opposed to the result in the Richard case is that the injured person’s right of direct action against the insurer is the property of the injured person, arising at the time of the act and the damage for which he seeks recovery. This property is called a litigious right (C.C. 2653, 3556(18)) and is recognized as property here and in France. XIII Tul. L.Rev. (1938-1939); Planiol, Vol. 2, § 1649 ff. (1939). Any provision in the liability policy which purports to minimize the right of an injured person to sue the insurer directly cannot be enforced without depriving the injured person of a property right. The insurer cannot rely on a policy provision which purports to give it the right to “make such . . . settlement of any claim or suit as it deems expedient” except against the other contracting party, the insured, with any more confidence than it could rely upon the “no action” clause. The direct action statute has excised the “no action” clause, and has given to the injured person a direct right of action.

The insurer does have the right to compromise and settle claims, and the law does favor compromise. But by its very nature, a compromise involves risk, and is defined as an agreement in which “every one of them prefers to the hope of gaining, balanced by the danger of losing.” C.C. 3071.

The risk which Hartford took, when it compromised its claims with part of the claimants, was that another claimant would enforce its claim against Hartford. No statute and no contractual provision with Holtzclaw gives Hartford the right to render the property of Holtzclaw worthless.

Richard v. Southern Farm Bureau Casualty Insurance Co., supra, is therefore overruled.

This case was submitted to the jury upon instructions that the insurer had the right to exhaust the policy limits in settling with some claimants, to the exclusion of others, “provided that these settlements were reasonable and made in good faith.” The undisputed evidence was that Foggin, Hartford’s employee who investigated, adjusted and recommended the course which Hartford followed, did not arrive at the scene of the accident until Monday after the Saturday accident, although he had been promptly notified by his insured, and that most of the movable property of the filling station had been removed. He learned that Holtzclaw was the operator of the station, and sent a letter to him about five months after the accident to the effect that, if all parties did not agree to settle within thirty days, they would place the “policy limit of $5000 with the court and let each party file claim and the court distribute the funds.” This was never done, and neither Holtzclaw nor his lawyer heard any more from Hartford.

In order to find for Holtzclaw, the jury must have, on the instructions given, found Hartford was not in “good faith.” It is possible that the evidence would support such a finding — not that there was anything akin to fraud, but that Hartford might have been negligent to such a degree that the settlement could not be called “good faith” settlement when Holtzclaw was ignored. Because the case was given to the jury on a premise which we consider erroneous, we do not decide whether Hartford was in “good faith.”

The other factual findings of the jury however are amply supported by the evidence, and we make no change in the judgment based upon the verdict.

For these reasons, the judgment of the Court of Appeal is reversed, and the judgment of the district court is reinstated, at the cost of the respondent, Hartford Accident and Indemnity Company.

SANDERS, C. J., and MARCUS, J., dissent and assign written reasons.

SUMMERS, J., dissents.

SANDERS, Chief Justice,

dissenting.

In my opinion, the decision in Richard v. Southern Farm Bureau Casualty Ins. Co., 254 La. 429, 223 So.2d 858 (1969), is sound and controls the disposition of the instant case. I find nothing in the direct action statute contrary to that decision.

I greatly fear that the action of the majority- will discourage the settlement of claims in cases involving multiple claimants.

For the reasons assigned, I respectfully dissent.

MARCUS, Justice,

dissenting.

I do not consider that the direct action statute (La.R.S. 22:655) prohibits good faith settlements with less than all claimants under a liability insurance policy, thereby exhausting the limits of the policy, where the policy expressly accords the insurer the right to settle claims. Accordingly, I disagree with the majority’s overruling of Richard v. Southern Farm Bureau Casualty Ins. Co., 254 La. 429, 223 So.2d 858 (1969).

Rather, I consider that the direct action statute grants a right of action to an injured party against the insurer; it does not grant an injured party a prorata share of the proceeds of the policy. The only policy provision negated by the direct action statute is a “no action” clause. Otherwise, the direct action statute expressly restricts the right of action against the insurer to “the terms and limits of the policy.” A settlement provision is a valid contractual agreement. If the insurer exercises its right to settle, it has not contravened the direct action statute, assuming the settlement was made in good faith, i. e., reasonable payment of a valid claim. Accordingly, I respectfully dissent.

ON REHEARING

DENNIS, Justice.

A rehearing was granted in this case to determine whether this Court was correct in (1) overruling Richard v. Southern Farm Bureau Casualty Insurance Co., 254 La. 429, 223 So.2d 858 (1969), and (2) in holding that the direct action statute grants to each person injured in an accident a right of action against the tort-feasor’s insurer which cannot be affected by the insurer’s settlements with other claimants.

The factual pattern of this case is well stated in our original opinion and in the court of appeal opinion. Holtzclaw v. Falco, Inc., et al., 341 So.2d 1267 (La.App. 2d Cir. 1977).

The insurance policy provided a limit of $5,000 on coverage for property damage. Multiple claimants, including Holtzclaw, sustained property damages through the negligent operation of an automobile by the insured. Hartford, the insurer, settled with all claimants except Holtzclaw, exhausting the $5,000 policy limits. Trial of Holtzclaw’s claim resulted in a judgment for $4,500 against the insured and Hartford. The court of appeal reversed that part of the judgment awarding damages against the insurer but affirmed in all other respects. Holtzclaw v. Falco, Inc., et al., supra. On original hearing we reversed and reinstated the judgment of the trial court.

The instant case presents the question of what remedy, if any, a claimant has against alleged disproportionate disposition of the policy proceeds through settlements by the company with other claimants. A sound approach to the solution of this problem requires that it be considered in relation to another: has the company any duty to the insured regarding settlement of multiple claims arising from a single accident? If both questions are to be answered affirmatively, then the definition of the insured’s rights against the-company and the claimants’ rights against the company must be consistent; they must be such that it is possible for a company to select a course of action which will fulfill both obligations.

It is generally accepted that an insurer must carefully consider the interests of its insured, instead of only consulting its own self-interests, when handling and settling claims in order to protect the insured from exposure to excess liability. While the nature of the insurer’s obligations toward the insured is not clearly defined, this Court has recognized that a liability insurer owes its insured a minimum duty to act in good faith and to deal fairly. Some Louisiana court of appeal decisions indicate the imposition of a greater duty based upon a combined requirement to act in good faith and to use reasonable care and skill in settlement of claims. Language in one appellate opinion and a scholarly writing suggest the insurer should be regarded as a fiduciary or a mandatary responsible not only for unfaithfulness in management of claims but also for his fault or neglect. This jurisprudence is consistent with a trend in other jurisdictions which has elevated the insurer’s duty to act in good faith to an obligation of due care, and, perhaps, even strict liability. For our purposes in deciding the instant case a full delineation of the duty of a liability insurance company to its insured is not necessary. It is important, however, that consideration be given to whether this duty should be restricted so as to accommodate an enlargement of the insurer’s duty towards claimants.

In our original opinion we did not discuss the duty of the insurer towards its insured in handling claims under the policy. Impliedly, however, our initial holding would limit or modify the insurer’s duty in this regard. A duty to avoid preference among claims, enforceable in an action by a claimant for damages, cannot be reconciled with a duty of the insurance company to the insured comparable to that which has been recognized in our jurisprudence. Consequently, in reassessing our decision, we must take into consideration whether the statutes underlying our holding display a legislative intent that is inconsistent with the degree of responsibility toward policy holders that our courts have exacted from insurance companies.

The direct action statute, La.R.S. 22:655, undoubtedly does commit Louisiana to a strong legislative policy of assuring financial protection for innocent victims of automobile accidents. This Court has even stated that it “ * * * expresses the public policy of this State that an insurance policy against liability is not issued primarily for the protection of the insured but for the protection of the public.” Davies v. Consolidated Underwriters, 199 La. 459, 475-6, 6 So.2d 351, 357 (1942). The statute does not, however, provide that the insurer’s duty in handling and settling claims is owed primarily to the public instead of the insured. Although the legislation expresses an intention that “all liability policies within their terms and conditions are executed for the benefit of all injured persons,” it also provides “that it is the purpose of all liability policies to give protection and coverage to all insureds * * *.” La.R.S. 22:655 (emphasis added).

Nor does the statute express or fairly imply an intention to grant to each person injured in an accident a right superior to a reasonable term or condition of the policy by which the insurer is empowered to settle claims. Basically the statute abrogates the insolvency of the insured as a defense for the insurer and grants to an injured person a direct right of action against the insurer within the terms and limits of the policy. Its provisions are designed to remove two principal obstacles to recovery, the “no action” clause and the prerequisite of obtaining a judgment against the insured. Comment, The Louisiana Direct Action Statute, 22 La.L.Rev. 243 (1961); Comment, Direct Rights of Action Against Public Liability Insurers: Louisiana Act 55 of 1930, 11 Tul. L.Rev. 443 (1937); see also, Webb v. Zurich Insurance Co., 251 La. 558, 205 So.2d 398 (1967). The legislation is remedial and does not purport to create rights against the insurer independent of those provided for in the policy or contract of insurance.

This Court did not reach a different conclusion in West v. Monroe Bakery, 217 La. 189, 46 So.2d 122 (1950). The direct action statute, then, as now, provided that any action brought thereunder shall be “within the terms and limits of the policy.” In rejecting the insurer’s defense based on the insured’s failure to give notice of an accident “as soon as practicable,” as required by the policy, this Court indicated that the statutory proviso was not intended to include the requirement of notice, but referred only to “the amount which might be recovered and to those other warranties and conditions with which it was within the power of plaintiff to comply.” The opinion of the court quoted with approval from Davies v. Consolidated Underwriters, supra, which observed that, due to a claimant’s lack of knowledge of the insurer’s identity, it is “not within his power to give notice as required by the policy;” therefore, the policy provision requiring notice to be given by the insured'cannot be enforced to deprive him of the right of action granted by law. 217 La. at 210, 46 So.2d at 130. Accordingly, this Court has liberally construed the direct action statute in favor of maintaining the direct right of action by injured persons, but it has not interpreted the legislation so as to grant plaintiffs a right of action uncircumscribed by the limits of the policy or those other warranties and conditions with which it is within their power to comply.

Upon reflection we also conclude that the right of direct action against an insurer is not, as may have been implied in our original opinion, imbued with greater stature by virtue of its being a litigious right as described by Louisiana Civil Code Articles 2653 and 3556(18). These articles are related to the chapter entitled “Of the Assignment or Transfer of Credits and Other Incorporeal Rights.” La.C.C. arts. 2642-54. They merely tell under what circumstances a right becomes litigious in determining those entitled to claim the benefit of Article 2652, which provides that a person against whom a litigious right has been transferred may obtain a release by paying to the transferee the real price of the transfer, together with interest from its date. These articles do not purport to define the intrinsic nature of a right but provide only that a suit and contestation must exist in order for any right to become litigious.

The insurance contract in the instant case contained a clause giving the insurer the right to enter compromise settlements and, in doing so, to deplete and exhaust the insurance fund. The direct action statute provides that the action which may be maintained by the injured party shall be “within the terms and limits of the policy.” There is no expression within the legislation or intention implicit in the underlying reasons for its enactment which require us to regard the insurer’s right to settle as anything other than a term or limit of the policy. We conclude, therefore, that the direct action statute does not give a plaintiff a right of action which is superi- or to the settlement clause of the insurance policy. Furthermore, we see no necessity for reformulation of the rule of law demanding only that the insurer act reasonably and in good faith toward claimants in effecting settlements. The implementation of the legislative policy of assuring innocent accident victims of financial protection does not appear to have been thwarted by the prevailing jurisprudential rules. There are very few reported cases in which a claimant contests a disproportionate settlement. The requirement of a more stringent standard of care by the insurer towards claimants would necessarily tend to diminish the degree of the company’s responsibility owed its insureds. Accordingly, we have determined that we erred in our first opinion in overruling Richard v. Southern Farm Bureau Casualty Insurance Co., supra, and that our holding in that case should be fully reinstated.

We also reaffirm our decision in that case to reject the argument that the direct action statute grants to each person injured in an accident ownership of or a privilege upon a pro-rata share in the insurance proceeds which become available after liability of the insured tort-feasor is established. For the same reasons we concluded that the statute does not subordinate the insurer’s right to settle clause to a claimant’s right of action we think it clear the legislation does not express or fairly imply such an intention. The remedial purpose of the statute was to remove obstacles to the claimant’s recovery, not to create for him a privilege or an ownership interest in insurance proceeds. A privilege can be claimed only for those debts to which it is expressly granted by law. La.C.C. art. 3185.

The evidence relevant to the question of whether there was a sufficient basis to support the jury’s finding that Hartford did not act reasonably or in good faith toward Holtzclaw in its claims settlements has been summarized in our original opinion and the court of appeal opinion. The salient features are as follows: The accident occurred on' March 16, 1974. By letter dated July 3, 1974, Hartford informed Holtzclaw and other potential claimants of the following:

“Gentlemen:
“We wrote each of you on April 19, 1974. Only Exxon has advised us of their claim amount and supporting papers.
“If we do not have all parties agreed on in 30 days, we will place our policy limit of $5,000 with the court and let each party file claim and the court distribute the funds.”

Holtzclaw turned this letter over to his attorney. Neither Holtzclaw nor his attorney made any effort to contact Hartford and submit a claim for consideration. The other claimants did contact Hartford concerning their respective claims and negotiated a settlement in December, 1974. There was no other communication between Hartford and Holtzclaw or his attorney before this suit was filed on March 14, 1975. Under these circumstances there was not sufficient evidence to support a finding that Hartford acted unreasonably or without good faith with respect to Holtzclaw.

Accordingly, the judgment of the court of appeal is affirmed.

TATE, J., dissents and assigns written reasons.

DIXON, J., dissents, adhering to the original opinion.

TATE, Justice,

dissenting.

In general, I agree with the scholarly analysis of the majority opinion of the opposing interests at issue. I also agree that, in our original majority opinion, we did not give appropriate weight to the duty of the insurer to protect its insured by compromising as many of the multiple claims as possible. The insurer should not be penalized for settling some but not all multiple claims, in order to reduce as much as possible its insured’s exposure to tort judgment. On the other hand, I also agree with our original decision that Louisiana’s direct action statute, La.R.S. 22:655, incorporates a legislative policy that, at the moment of an accident, the injured person, as well as the insured, is protected by a liability insurance policy. I do not believe that the insurer can deprive the injured person of the (at least pro rata) protection afforded him (as well as the insured) by the policy, by paying the entire proceeds to other claimants.

On the other hand, it seems to me, such payments in compromise of other claims should reduce the amount of the policy limits available for uncompromised claims (i.e., by the proportion of the claims paid to the total claims payable). Nevertheless, in my opinion, they should not completely extinguish the insurer’s liability to a claimant not so preferred by settlement; the uncom-promised claimant is still owed his pro rata share of the policy proceeds, just as if a concursus proceeding had been instituted. In the present case, for instance, the claimant would be entitled to his pro rata share of the $5,000 policy limits, as represented by his claim’s proportion of the total tort liability of the insured for the accident in question.

Whether a claim exceeds the policy limits or not, the insurer is obliged by its policy terms to defend its insured in a suit brought by the uncompromising plaintiff; thus, it is not exposed to an additional law suit by virtue of the approach suggested. The formula for its policy-limit liability may seem complicated, as verbally articulated; but it would be no more difficult for the courts to administer than our other pro rata adjustments of multiple recoveries exceeding policy limits (e.g., as if all these claims had been joined in one concursus proceeding).

The merit of this approach, it seems to me, is that it would recognize and reward the insurer for good faith settlements with other claimants on behalf of its insured. At the same time, one claimant would not be deprived of his legislatively-given direct action against the insurer for his injuries and for his pro rata share of the policy proceeds.

I would to this limited extent overrule Richard v. Southern Farm Bureau. Therefore, I respectfully dissent.

      . See, Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv.L.Rev. 27 (1956).

      . See, Comment, Duty of Insurer to Settle, 30 La.L.Rev. 622 (1970).

      . Roberie v. Southern Farm Bureau Casualty Ins. Co., 250 La. 105, 194 So.2d 713 (1967). In this case the Court considered but did not decide whether the duty owed was actually one of due care.

      . Cousins v. State Farm Mutual Automobile Ins. Co., 294 So.2d 272 (La.App. 1st Cir. 1974); Trahan v. Central Mutual Ins. Co., 219 So.2d 187 (La.App. 3d Cir. 1969); Younger v. Lumbermens Mutual Casualty Co., 174 So.2d 672 (La.App. 3d Cir. 1965); Wooten v. Central Mutual Ins. Co., 166 So.2d 747 (La.App. 3d Cir. 1964).

      . Younger v. Lumbermens Mutual Casualty Co., supra, at 675 (quoting from 7A, Appleman, Insurance Law and Practice, § 4711 (1962 ed.); Comment, Duty of Insurer to Settle, 30 La.L. Rev. 622, 640 (1970) (quoting from La.C.C. art. 3003; see also, Note, 39 Tul.L.Rev.’368 (1965).

      . See, Comment, The Tort of Bad Faith:. A Perspective Look at the Insurer’s Expanding Liability, 8 Cumberland L.Rev. 241 (1977); Koesterer, Liability in Excess of Policy Limits, 27 Fed. of Ins. Council 287 (1976); Note, 25 Drake L.Rev. 900 (1976); Note, 13 Wake Forest L.Rev. 685 (1977); see also, Annotation, Duty of Liability Insurer to Settle or Compromise, 40 A.L.R.2d 168 and Later Case Service.

      . Crisci v. Security Insurance Co., 66 Cal.2d 425, 58 Cal.Rptr. 13, 426 P.2d 173 (1967) (dictum); Rova Farms Resort, Inc. v. Investors Insurance Co. of America, 65 N.J. 474, 323 A.2d 495 (1974) (dictum).

      .Professor Keeton illustrates: “ * * * Consider the following situation:
      “A, B, and C suffer personal injuries through the allegedly negligent operation of an automobile by D, who carries a liability-insurance policy with bodily-injury liability limits of $5,000 each person and $10,000 each accident. A offers to settle for $5,000, B for $4,000, and C for $5,000.
      “What should the company do? Assume that it concludes that each of the three settlement figures is very favorable to the defense if viewed independently of the others, and that settlement of two of the three would not increase the risk regarding the third. From the point of view of one concerned with defense against the total claims of A, B, and C (the point of view required in discharge of the duty to the insured), two of the three claims should be settled. But from the point of view of proportionate distribution of policy proceeds among claimants, none of the offers should be accepted. Numerous other assumptions which might be made would produce similar conflicts. In fact, the conflicts would become more complex if the reasonableness of each settlement figure were questioned.

      “Recognition of a duty to the claimants to avoid disproportionate disposition of policy proceeds is not feasible without modification of the duty to the insured, a duty which, under existing policy forms and precedents, probably extends to multiple-claim as well as single-claim cases.” Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv.L.Rev. 49, 50 (1956). See also, Comment, Distribution of a Limited Insurance Fund to Multiple Claimants, 22 La.L.Rev. 214 (1961).

      . La.R.S. 22:655 provides:
      “No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person, or his or her survivors mentioned in Revised Civil Code Article 2315, or heirs against the insurer. The injured person or his or her survivors or heirs hereinabove referred to, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Art. 42, Code of Civil Procedure. This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the State of Louisiana. Nothing contained in this Section shall be construed to affect the provisions of the policy or contract if the same are not in violation of the laws of this State. It is the intent of this Section that any action brought hereunder shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this State.
      “It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.”

      . 217 La. at 205, 46 So.2d at 128, quoting from West v. Monroe Bakery, 39 So.2d 620 (La.App. 2d Cir. 1948) (dissenting opinion).

      . Art. 2653. A right is said to be litigious, whenever there exists a suit and contestation on the same.

      .Art. 3556(18). Litigious rights — Litigious rights are those which can not be exercised without undergoing a lawsuit.

      . See, Comment, Sale of Litigious Rights, 13 Tul.L.Rev. 448 (1939).

      . “ * * * [T]he company may make such investigation and settlement of any claim or suit as it deems expedient.”

      .We note that the issue has been raised in only two Louisiana appellate court cases since Richard. See, Louisiana Farm Bureau Mutual Insurance Co. v. State Farm Mutual Automobile Ins. Co., 348 So.2d 1311 (La.App. 3d Cir. 1977); Jack v. Jack, 240 So.2d 435 (La.App. 3d Cir. 1970); cf. Wright v. Romano, 279 So.2d 735 (La.App. 1st Cir. 1973). Moreover, the issue has seldom been raised in other jurisdictions.

      . Although the author of the initial opinion herein does not share this view, one or more of the original majority believes that the direct action statute protects a pro-rata share of the insurance fund for each claimant.

      . Compare, La.R.S. 9:4581 which expressly provides for a vendor’s privilege on fire insurance proceeds.

      . The total tort liability would be determined by adding the $4,500 owed him to the reasonable value of the $18,000 claims by the other persons injured, or $4,500/$18,000 (assuming the $18,000 to be the reasonable value of their claim, instead of the $5,000 for which they were settled).


author: DIXON, Justice.

text:
    In re Milton P. MASINTER.
    No. 60451.
    Supreme Court of Louisiana.
    March 6, 1978.

      Milton P. Masinter, in pro. per.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for respondent.
   DIXON, Justice.

Milton P. Masinter, a New Orleans attorney, was found guilty of contempt of court during his representation of a defendant in a criminal matter. The trial judge sentenced Masinter to serve twelve hours imprisonment in the Orleans Parish Prison. We granted Masinter’s application for cer-tiorari and stayed the imposition of sentence.

Masinter’s client was being tried before a jury for carnal knowledge of a juvenile and contributing to the delinquency of a juvenile. The contempt citation occurred during Masinter’s cross-examination of the father of the juvenile. We quote extensively' from the cross-examination:

“Q Did she spend much time with you prior to her leaving on the 26th or whenever it was? While she was here, did she spend a lot of time with you?
BY MR. LARSEN:
I’m going to object to the relevancy of that question. What difference does that make?
BY THE COURT:
For the present time, I’ll sustain the objection until you lay a foundation, sir.
BY MR. MASINTER:
Well, I thought that was what I was doing, Your Honor.
BY THE COURT:
Q Did she come to New Orleans for the purpose of staying with you, sir?
A She came to see us all, her brothers and myself.
Q Did she have plans to stay with you or her brothers?
A She wanted to stay with her brother.
Q All right.
BY MR. MASINTER:
Q Did you and she have an argument?
A No.
BY MR. LARSEN:
Objection.
BY THE COURT:
He’s already answered it.
BY MR. MASINTER:
Q To your knowledge, was she afraid of you?
BY MR. LARSEN:
Objection again.
BY THE COURT:
Objection sustained. That’s got nothing to do with the crime of carnal knowledge.
BY MR. MASINTER:
Q Did she run away?
BY MR. LARSEN:
Objection.
BY MR. MASINTER:
Q Did you consider her a runaway from your home?
BY THE COURT:
Objection sustained.
BY MR. MASINTER:
I object. Your Honor, I—
BY THE COURT:
I’ve already ruled, Mr. Masinter.
BY MR. MASINTER:
—I’ve got to ask these questions to get to anything.
BY THE COURT:
I’ve already ruled.
BY MR. MASINTER:
But, you won’t—
BY THE COURT:
I’m not going to change, so go ahead.
BY MR. MASINTER:
—let me ask any questions.
BY THE COURT:
Let’s stick to the issues.
BY MR. MASINTER:
Q Well, you hadn’t seen your daughter in three years. You don’t know what kind of girl she was, right?
BY MR. LARSEN:
Objection, Your Honor. That’s highly improper.
BY THE COURT:
Objection sustained.
BY MR. MASINTER:
Q Well, let me ask you, do you go to church? Maybe that’s not objectionable. Let me ask you, do you go to church?
BY MR. LARSEN:
I’m going to object to that. What’s the relevancy to that?
BY THE COURT:
Objection sustained. What’s the relevancy?
BY MR. MASINTER:
It has absolutely none, Your Honor. I just thought I’d ask it cause everything else— nobody seems to want to get to the truth here.
BY THE COURT:
Are you accusing this Court of suppressing the truth, sir?
BY MR. MASINTER:
I may just have to do that later.
BY THE COURT:
I find you guilty of contempt of court.
BY MR. MASINTER:
Then you find me so guilty.
BY THE COURT:
And, I will take care of that later. Now, proceed according to law.”

C.Cr.P. 21 provides, in pertinent part:

“A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge; or, a contumacious failure to comply with a subpoena, summons or order to appear in court, proof of service of which appears of record; or, a contumacious failure to comply with an order sequestering a witness.
A direct contempt includes, but is not limited to, any of the following acts:
(5) Contumacious, insolent, or disorderly behavior toward the judge or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority;
(7) Use of insulting, abusive, or discourteous language by an attorney or other person in open court, or in a motion, plea, brief, or other document, filed with the court, in irrelevant criticism of another attorney or of a judge or officer of the court;

Masinter contends that the trial judge erred in finding that his remarks constituted contempt of court. Specifically, he argues that he was not accusing the court of suppressing the truth, but rather that he was referring to the possibility of an appeal to review the rulings of the court.

The power to punish contemptuous conduct is essential to the preservation of the dignity and authority of our courts. See Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); State v. Collins, 237 La. 111, 110 So.2d 545 (1959). This power, however, must be used with great care so as not to obstruct the advancement of causes before the court.

The trial of cases is a difficult and emotional task for both judge and lawyer. The lawyer is obliged to lay before the jury every helpful fact not prohibited by law. The judge is obligated to rule on every objection, to conserve the time of the members of the jury and of the court itself. The lawyer must probe on cross-examination, and the judge must exclude irrelevant questions and cross-examination on collateral matters. The nature of the exercise requires discrimination and restraint. The absence of intelligent self-control, to say the least, creates an atmosphere not conducive to the search for truth.

A lawyer should not suggest in argument in open court that the court is suppressing the truth. To do so would be contemptuous. Even if true, there are other and better forums. Such an accusation in open court would be destructive of the judicial process.

The power to sentence to jail for contempt is awesome to consider, and belongs to the judge because of the need for control of the courtroom and on the assumption that it will be judiciously and sparingly employed. The legislature is required to limit the power. Art. 5, § 2, La.Const. Now maximum penalties are prescribed for lawyers (R.S. 13:4611), whose exposure is greater, but whose training and experience should teach them the gravity of the offense.

In interpreting the legislative definition of direct contempt (C.Cr.P. 21(5)) we cannot say the lawyer’s behavior was either contumacious, insolent or disorderly; nor did it tend to interfere with the court’s business nor impair its dignity or respect for its authority. Although improper and unwise, the lawyer’s response was not contemptuous, principally because it was a response to a question by the judge which seemed to invite and encourage further verbal sparring.

Relator’s conviction for contempt is reversed, his sentence is vacated, and he is ordered discharged,


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Robert WILLIAMS, Victor Livers and Charles Sam, Jr.
    No. 60706.
    Supreme Court of Louisiana.
    March 6, 1978.

      Clyde D. Merritt, John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for Charles Sams, Jr. and Robert Williams.
    Peter J. Compagno, New Orleans, for Victor Livers.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Sheila C. Myers, Asst. Dist. Attys., for plaintiff-ap-pellee.

      . These rapes of two young girls took place in a single house over a relatively short period of time, about two hours. Defendants apparently acted in concert in bringing the girls to the house and in keeping them there. Under these circumstances federal courts would find that the crimes constitute the same transaction or series of transactions. Cataneo v. United States, 167 F.2d 820 (4th Cir. 1948); 8 Moore’s Federal Practice § 8.05[2]. We believe that our legislature, in adopting Code of Criminal Procedure Article 493, which tracks the language of the federal statute, likewise contemplated a liberal interpretation of the terms act and transaction. See State v. Carter, supra.

   CALOGERO, Justice.

Defendants Williams, Livers and Sam were each accused of committing aggravated rape upon two fourteen year old girls referred to herein simply as K and G. Defendant Williams was found guilty of attempted aggravated rape upon G and not guilty relative to the charge of rape upon K. Defendants Lewis and Sam, on the other hand, were found guilty of attempted aggravated rape upon K and not guilty relative to the charge of rape upon G. Each of the three defendants was sentenced to serve fifteen years at hard labor. Upon their appeal they designate twenty-four assignments of error.

The rapes occurred after the victims, who had met defendants in the French Quarter, were taken to a house evidently belonging to one of the defendants. The young girls apparently went voluntarily to the house (although the record is not barren of a small amount of contrary evidence) and there were forced at gunpoint and knife-point to have sexual intercourse. The victims were released otherwise unharmed.

The most significant arguments urged by defendants, as we view the case, are raised by assignments of error numbers two and twenty.

ASSIGNMENTS OF ERROR NOS. 2 AND 20

Defendants contend in assignment number two that the trial judge erred in refusing their pretrial motion for severance of the two offenses. They argue that dual charges of aggravated rape upon 14 year old girls, grave and reprehensible crimes as they are, has an especially prejudicial and “chilling” effect, sufficient to compel a severance of the charges. Defendants Livers and Sam argue in their assignment number twenty that the trial judge erred in denying a second motion to sever the charges urged after the state and defense had rested.

The claim of a criminal defendant (or defendants) to sever multiple offenses with which jointly charged is governed by Article 495.1 of the Code of Criminal Procedure. Under that article, when the defendant (or the state) moves for a severance before trial, the court shall grant the severance if “it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” [Emphasis added here and elsewhere.] When a defense motion (or a state motion, with consent of defendant) is made during trial, the court shall grant the severance when “it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.” The pretrial standard is broader because before trial there is a degree of speculation as to what the trial evidence actually will be; the standard which applies after trial starts is stricter because the trial judge is at that time able to analyze the evidence which has actually been admitted. State v. Proctor, 354 So.2d 488 (La.1977), No. 59,809; State v. Carter, 352 So.2d 607 (La.1977); ABA Standards on Joinder and Severance, § 2.2(b), p. 33.

First we review the trial judge’s decision to deny defendants’ motions for severance made before trial commenced. Defendants argue that their motions were improperly denied because of the prejudicial nature of the two offenses.

These crimes were joined under Code of Criminal Procedure, Article 493 because they were “ . . . based on the same act or transaction or on two or more acts or transactions connected together . .” In such a case, we will first review the issue, as we stated in State v. Proctor, supra, at 491, keeping in mind that:

“the jury may become confused in trying to apply the applicable law and evidence to the correct offense; that the jury may consider that a person charged with doing so many things is a bad man who must have done something, a feeling that might lead to a cumulation of the evidence; that the judge might find it difficult to adequately charge a jury as to the law with respect to each offense; that the prosecutor may find it troublesome to present his evidence in a compartmentalized and understandable manner; and that a defendant may be confounded or embarrassed in his defense because of the sheer number or complexity of the charges against him. Moreover, there is no doubt that the greater the number of offenses charged and the degree of their complexity, the greater the likelihood of the occurrence of any or all of these dangers. These problems are further exacerbated when the state has chosen to charge jointly two or more defendants.” [citations omitted]

To make these examinations, we believe that the facts of the case bear repeating in some detail.

Each of three defendants was charged with raping each of two victims. The evidence showed that the three defendants and two young girls entered a house together, whereupon defendants Sam and Livers successively raped victim K in a bedroom at gunpoint, while more or less simultaneously Williams raped victim G at knifepoint in the kitchen. The state’s theory of the rape of K by Williams and of G by Sam and Livers (the charges on which the jury brought back acquittals) was apparently that defendants were principals in the crimes, for the evidence indicated intercourse by the defendants and the victims only in the pairings reflected in the three guilty verdicts. Although the record re-fleets that defendant Livers appeared briefly in the kitchen, for the most part the evidence establishes that three rapes were perpetrated against two different victims by three different defendants in separate rooms. The evidence as to each crime was concise and distinct, presented entirely by the victim of each rape.

Under these circumstances, there would seem to be little chance that the jury would have become confused in trying to apply the evidence presented to each defendant’s pair of charged rapes. The evidence as to each was simple and direct and the crimes were separated enough in time and place as to be clearly distinguishable. Moreover, since each pair of offenses charged constituted violations of the same criminal statute, there was little possibility of difficulty on the part of the judge in describing the law applicable to each offense, or on the part of the jury in applying the law applicable to each offense in their deliberations. In regard to the problem of cumulation of evidence, we believe there was little chance of improper prejudice through cumulation because only two offenses were charged and these were of the same seriousness (for example, a particularly violent or gruesome crime was not tried along with a more benign one), and the evidence presented by the state as to each offense was of the same character (for example, a crime proved by scanty evidence was not tied to one where there was overwhelming evidence of guilt). Thus, we cannot find that the trial judge erred in denying defendants’ pre-trial motions for severance of offenses. His determination that severance would not have been “appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense” was not in our view erroneous. C.Cr.P. art. 495.1.

We turn now to the contention of error in the judge’s ruling during trial denying the defendants’ motion for severance. As we have previously stated, the statutory test governing when a severance is to be granted after trial has commenced is stricter than the broader pretrial test. A motion for severance at this time allows a trial judge to consider the evidence as it has actually been presented and analyze the prejudice to defendants arising out of the fact that offenses have been joined. Although trial judges have an added responsibility in cases where multiple offenses are being tried to be aware of the possibility of jury confusion, we believe that there was no such serious danger in this case because, as explained above, the trial evidence was clear and compact and not at all complex. The trial judge did not err when he denied the severance and ruled that such was not necessary to achieve a fair determination of each defendant’s guilt or innocence of each charged offense.

The assignment lacks merit.

We find no reversible merit to these assignments of error:

Assignments 1, 10, 11 (Williams and Livers) and 12 (Sam): The trial judge did not err in denying defendants’ motion to suppress. Orleans Parish Criminal District Court magistrates do have the authority to issue search warrants, R.S. 13:1346(D). And there is no merit to defendants’ contentions that some items of evidence were impermissibly seized because not particularly described in the search warrant. C.Cr.P. art. 165.

Assignments 3 and 20: We find no abuse of discretion in the trial judge’s failure to sever defendants for separate trials because defendants made no showing at the hearing on the motion that the planned or intended defenses were actually antagonistic. State v. Singleton, 352 So.2d 191 (La.1977); State v. Hunter, 340 So.2d 226 (La.1976).

Assignment 4: Defendants moved to quash on the grounds that the offenses, having occurred before the statutory amendment to C.Cr.P. art. 495.1, were improperly joined in the charge and at trial. This issue has already been resolved contrary to defendants’ contentions. State v. Sepulvado, 342 So.2d 630 (La.1977).

Assignment 5: The trial occurred in February of 1976. The petit jury was chosen in open court from prospective jurors who were called for voir dire in an order determined by lot. However, the drawing by lot itself was not accomplished in open court, as required by C.Cr.P. art. 784 and so interpreted in State v. Hoffman, 345 So.2d 1 (La.1977). Nevertheless, the ruling in Hoffman was specifically made to take effect prospectively, and to control only jury panels selected after its date of finality in May of 1977. The present 1976 jury selection having occurred prior to the effective date of the ruling, no reversible error is presented by this assignment.

Assignments 8 (Sam) and 9 (Williams and Livers): In the course of regulating defense counsel’s cross examination the trial judge commented, on the heels of a question by defense counsel concerning the witness’ pri- or testimony, “That is not what she said.” Defense counsel moved for a mistrial on the ground that the judge’s comment violated Article 772 which forbids a judge’s comment upon the evidence, recapitulation of the evidence, repeating of testimony of a witness or the giving of an opinion as to what has been proved, not proved or refuted. The trial court refused to grant a mistrial, and because no admonition was sought none was given.

Assuming that the judge’s comment was a prohibited comment on the facts by the judge in the jury’s presence prohibited by Article 772, it was not one from which the jury could infer any expression of the judge’s opinion concerning a relevant issue of fact or the credibility of a witness. State v. Hodgeson, 305 So.2d 421 (La.1974).

Assignment 9 (Sam): The trial court did not abuse its discretion in allowing the state, on redirect examination of a rape victim, to ask if her testimony as to the rape was true.

Assignments 13, 14, 15, 17, 18 and 19: Over defense objection the state was allowed to ask defendant Williams if the particulars of the victim’s testimony were lies, if he would have stopped having sexual relations with the victim if she had asked him to stop, if he would admit he was guilty if he really were guilty, if he normally asked girls he had just met how they feel about sex. Over defense objection the state was allowed to ask defendant Livers if he would have stopped having sex if the victim had asked him to do so, and if he would tell the jury so if the victim had not given her consent. Defense argues that each of these questions was prejudicial and improper and the rulings permitting same erroneous.

While certain of the foregoing questions were perhaps improper and while all such questions are to be discouraged, and merit close scrutiny on review, we cannot conclude that the questions here posed were reversibly prejudicial. State v. Lewis, 353 So.2d 703 (La.1977), No. 59,714 handed down November 14, 1977; State v. Richardson, 337 So.2d 210 (La.1976).

Assignments 21 (Livers and Sam) and 18 (Williams): Article 774 of the Code of Criminal Procedure requires that argument be confined to evidence admitted, to the lack of evidence, to conclusions of fact to be drawn therefrom and to the law applicable to the case. State v. Joseph, 341 So.2d 861 (La.1977). In this case the trial judge over defense objection allowed the prosecutor in closing argument to compare the defendants’ opening statements to the evidence actually adduced at trial. Since Article 774 allows argument on the lack of evidence, we see no prejudice in the state’s pointing out deficiencies in the defense evidence as compared with the opening statements in which defendants set forth such evidence as they proposed to present during the trial.

Assignment 22 (Livers, Sam): There was no abuse of discretion in the trial court’s refusal to grant defendants’ motion for mistrial on the ground that the prosecutor commented that defendant Livers had not offered any character evidence as a part of his defense. Since defendant Livers’ opening argument was totally devoted to the character evidence he planned to introduce, it was acceptable for the prosecutor to include in her closing argument a statement that defendant had not produced that evidence.

Assignment 23 (Livers, Sam): Article 770 of the Code of Criminal Procedure mandates a mistrial when a remark or comment made within the hearing of the jury by the district attorney during argument refers directly or indirectly to the failure of the defendant to testify in his own defense.

At the conclusion of the state’s argument counsel for defendants moved for a mistrial based on the entire closing argument of the assistant district attorney, contending that during closing argument the prosecutor made a direct comment on the fact that Charles Sam had not testified. In brief defendants argue that the proscribed observation was “this is all the testimony you have heard except for the testimony of Williams and Livers.” They urge that this was a direct reference to the fact that defendant Sam did not testify.

While we have been unable to find the quoted passage in the closing argument, we would not be inclined in any event to find such a comment a direct or indirect reference to defendant Sam’s failure to testify in his own defense.

Assignment 24 (Livers, Sam) and 19 (Williams): We find no error in the trial court’s denial of two special charges requested by defendants. One of the charges, a reading of R.S. 15:432, was properly denied as not wholly pertinent and correct, and the other, Code of Criminal Procedure Article 804(A)(2), was covered by the general charge. See C.Cr.P. art. 807.

Decree

Finding no reversible error, we affirm defendants’ convictions and sentences.

AFFIRMED.

      . We glean these facts from the trial transcript because we find in the record no facts of the occurrence as a part of the severance hearing transcript. We note, however, that the two victims did testify at the severance hearing about the statements they gave to police regarding the incident, and we assume that the trial judge had before him the text of these statements so that he could analyze the evidence as asserted at that time by the state. Although we would prefer to have the asserted facts in the record so as to facilitate our review, defendants make no complaint in this regard, and it would seem that there is agreement between the statements and the trial record.