author: LARRY G. SMITH, Judge.

text:
    The TALLAHASSEE DEMOCRAT, INC. and Florida Publishing Company, Publisher of the Florida Times-Union at Jacksonville, Florida, Petitioners, v. The Honorable Ben C. WILLIS, Circuit Judge for the Second Judicial Circuit of Florida, in and for Leon County, Florida, Respondent.
    No. NN-314.
    District Court of Appeal of Florida, First District.
    May 17, 1979.

      C. Gary Williams, DuBose Ausley, Michael Pearce Dodson, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee and Harold B. Wahl, of Wahl & Gabel, Jacksonville, Dan P. S. Paul, of Paul & Thomson, Miami, for petitioners.
    Jim Smith, Atty. Gen. and George R. Georgieff, Asst. Atty. Gen., for respondent.
   LARRY G. SMITH, Judge.

We have before us for review Administrative Order 79 — 17 entered by the Honorable Ben C. Willis, Chief Judge, Second Judicial Circuit. Jurisdiction is vested in this court by Rule 9.100(d), Fla.R.App.P.

The order, entitled, “In Re: Sealing of Deposition Transcriptions in Civil and Criminal Cases”, reads as follows (omitting formal parts):

“It has come to the attention of this office that when depositions have been transcribed in criminal and civil cases the transcription is historically and routinely filed in the official court file where they are subject to review and copy by anyone. This procedure can affect the right to a fair trial by either party if the transcriptions are allowed to be open for public inspection prior to the conclusion of the proceeding.
“In the Florida Rules of Court, 1979, Rule 1.310, Rules of Civil Procedure, Depositions Upon Oral Examination, provides in subsection (f)(1) as follows:
‘If transcribed, the officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked “Deposition of (here insert name of witness)” and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk for filing.’
“Subsection (f)(2) provides as follows:
‘Upon payment of reasonable charges therefor the officer shall furnish a copy of the deposition to any party or to the deponent.’
“In the Rules of Criminal Procedures, Rule 3.220(d), Discovery Depositions, states in part:
‘. . . Except as provided herein, the procedure for taking such depositions, including the scope of the examination, shall be the same as that provided in the Florida Rules of Civil Procedure.’
“Rule 3.190(j)(5), Rules of Criminal Procedure, states:
‘Except as otherwise provided, the rules governing the taking and filing of oral depositions, the objections thereto, the issuing, execution and return of the commission and the opening of the depositions in civil actions shall apply in criminal cases.’

“In compliance with the Florida Rules of Court as heretofore mentioned, it is therefore

“ORDERED AND ADJUDGED that duly certified transcripts of all depositions shall, in accordance with the above rules, be securely sealed in an envelope endorsed with the title of the action and marked ‘Deposition of (here insert the name of witness)’ and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk for filing. Such depositions then become subject to unsealing only by direction of the court in which the action is pending.

“This Order shall take effect immediately-

“DONE AND ORDERED in Chambers at Tallahassee, Florida, this 16th day of March, 1979.

BEN C. WILLIS, CHIEF JUDGE”

It is clear that the Chief Judge interpreted the language of Rule 1.310(f)(1) — that the officer taking the deposition shall “securely seal” the deposition prior to the filing with the clerk — as if the rule required the deposition to remain sealed after filing. We might be inclined to agree except for other provisions of the rules relating to depositions which we feel must be considered in pari materia in order to determine the intent and purposes of the quoted provision.

Petitioners contend, and we agree, that this particular language governs the transmittal of and not access to depositions. They refer us to Rule 30, Fed.R.Civ.P., which contains operative language virtually identical with the Florida rule under discussion. The Federal rules provides:

“(1) The officer shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked ‘Deposition of [here insert name of witness]’ and shall promptly file it with the court in which the action is pending or send it by registered or certified mail to the clerk thereof for filing.” (Rule 30, Fed.R. Civ.P.)

Wright and Miller, in their work “Federal Rules of Civil Procedure”, Volume 8, Section 2119, state in relation to this rule (page 438):

“. . . Upon filing the deposition should be immediately opened by the clerk, and made available for public inspection, unless the court has made a protective order that the deposition remain sealed.”

In Section 2042 of the same work (Volume 8, Federal Practice and Procedure) we find the further statement (page 298):

“. . . Ordinarily a deposition is a public document freely open to inspection after it is filed with the clerk. . . . ”

Since the Florida rules were modeled in large part after the Federal rules, interpretations of comparable Federal rules have often been adopted by the courts of Florida.

We turn next to Rule 1.400, Fla.R. C.P., “Depositions Deemed Published When Filed” which provides:

“Upon the filing of any deposition or affidavit taken under any rule or statute it shall be deemed published, unless otherwise ordered by the court, and may be opened and examined by any party in the presence of the clerk. The clerk may unseal the deposition and file it with other papers in the court file.”

Administrative Order 79-17 directly conflicts with Rule 1.400, because it requires the deposition to remain sealed, subject to direction of the court, whereas, the rule promulgated by the Florida Supreme Court allows the clerk to unseal the deposition and file it with other papers in the court file. We also find the language of the rule explicit in its direction that the deposition “shall be deemed published, unless otherwise ordered by the court” (emphasis supplied). We think this portion of the rule makes it clear that access is prohibited only if ordered by the court. We note that the District Court of Appeal, Second District of Florida, has placed this interpretation upon the rule in Tibado v. Brees, 212 So.2d 61 (Fla. 2nd DCA 1968). In that case the question arose whether Mr. Tibado had waived his claim of privileged communication between husband and wife by giving his deposition. In answering this question the court stated:

“It should also be noted that Mr. Tibado’s deposition was filed with the clerk of the circuit court and therefore under Rule 1.400 R.C.P. was deemed published as there was no order of the court to the contrary. Having been deemed published the communications between Mr. Tibado and his wife became public and therefore the justification for the privilege ceased. . ” (212 So.2d at page 63)

Our conclusion that a deposition is open for inspection by the public and the press when filed is strengthened by the provision of the rules governing protective orders. Rule 1.280(c) “Protective Orders”, provides in part:

“Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: ... (6) that a deposition after being sealed be opened only by order of the court; . . . ” (Rule 1.280(c) Fla.R.G.P.)

If, as respondent contends, the rules require a deposition to be sealed unless ordered opened by the court, Rule 1.280(c) would be something of an anomaly in that it would require a person seeking protection under the rule to file a motion and show good cause in order to receive a court order requiring that to be done which respondent contends the rule requires to be done in the first instance.

Discovery depositions are also provided for by the Rules of Criminal Procedure. Under Rule 3.220(d), Fla.R.Cr.P., the “procedure” for taking depositions, and the “scope of examination” shall be the same as that provided in the Florida Rules of Civil Procedure. We conclude that protective orders may be entered by the court under Rule 1.280(c) in criminal as well as civil cases. Additional provision for protective orders in criminal cases is provided by Rule 3.220(h), allowing restriction or deferment of disclosures. Under Rule 3.220(i) in camera proceedings may be held by the court for the purpose of permitting any person to show cause for denial or regulation of disclosures. In such event, a record shall be made of the proceeding, and the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.

In sum, we conclude that the rules of procedure contemplate that upon filing, unless otherwise ordered by the court, a deposition becomes a part of the “court file” (Rule 1.400 Fla.R.C.P.). According to this view, in the absence of a court order sealing the deposition, or some provision of law requiring the same to remain confidential, the press may not be excluded from reading, copying and reporting the contents of a deposition. The protection of litigants’ right to a fair trial as well as protection of other recognized rights may be sought and accomplished under the rules, but we determine that the rules require this to be done on a case-by-ease basis, rather than by blanket administrative order as was attempted here.

Petitioners have grounded their claims to access to depositions upon their First Amendment rights under the United States Constitution, citing among other authorities State ex rel. Miami Herald Pub. Co. v. McIntosh, 340 So.2d 904 (Fla.1977); Miami Herald Pub. Co. v. State, 363 So.2d 603 (Fla. 4th DCA 1978); Times Publishing Co. v. Hall, 357 So.2d 736 (Fla. 2nd DCA 1978); News-Press Pub. Co., Inc. v. State, 345 So.2d 865 (Fla. 2nd DCA 1977); The Miami Herald Publishing Company v. Collazo, 329 So.2d 333 (Fla. 3rd DCA 1976). The McIntosh case involved a true “prior restraint” order barring publication of information obtained by the press in a judicial proceeding. Miami Herald Pub. Co. v. State involved exclusion of the media from a sentencing hearing, and Times Publishing Co. v. Hall, exclusion from a criminal trial. Collazo dealt with an order sealing a settlement agreement made between the parties during a hearing before the court. Only the News-Press Pub. Co. case concerns the sealing of depositions, but even there in a context entirely different from that contemplated by the protective order provisions of Rule 1.280(c). In the News-Press case, the court’s order at some point in time (not stated in opinion) ordered sealing of depositions apparently already taken and filed in a criminal case. Thereafter, the defendant entered a plea of guilty, and on or about the sentencing date, application was made by the press for an order allowing inspection of the depositions. In reversing the trial court’s refusal to unseal the depositions, the District Court stated:

“At the outset, we note that this is not a case of prior restraint since the court has not sought to prohibit the press from publishing any information it may have obtained. . . . ” (345 So.2d page 866)

Therefore, the district court merely remanded to the trial court for further consideration and entry of an order specifically setting forth the reasons for public access being denied.

These cases appropriately emphasize the function of the First Amendment in requiring the exercise of great caution in the closing of court files or records, but we find no basis for argument that First Amendment rights entitle petitioners to require the opening of court records properly sealed by the trial judge. If such is the basis for petitioners’ continued objection to any order sealing depositions, then we might suggest the appropriate forum for change would be the Supreme Court of Florida which has exclusive authority over the rules of procedure governing depositions.

Petitioners argue with great insistence the applicability of the notice and hearing procedures set forth in State ex rel. Miami Herald Publishing Co. v. McIntosh, supra. However, we perceive a distinction between press rights of access to court hearings or trials, and access to portions of the court file or records which may or may not be subject to public and press inspection, i. e. specifically, depositions. Also, we feel that we are not here dealing with a case of “prior restraint” upon the press which would without any question compel compliance with the requirements of McIntosh.

Counsel for petitioners have furnished us no authority that would preclude a trial court from exercising the power to seal a deposition under Rule 1.280(c), nor, for that matter, in a proper case order that the deposition be taken with no one present except persons designated by the court, as well as to enter any other protective order permitted by the rules. We are aware of no authority that would give the press rights of access to sealed depositions superi- or to those enjoyed by the members of the public generally. Cf. Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977), cert. den. 438 U.S. 914, 98 S.Ct. 3142, 57 L.Ed.2d 1159 (1978).

While we find ample authority as the reviewing court under Rule 9.100(d), Fla.R. App.P., to determine validity of the administrative order in question, we note that such reviewing authority has been exercised by a District Court of Appeal entirely apart from any such special rule as we have governing this particular matter. In State v. Darnell, 335 So.2d 638 (Fla. 4th DCA 1976) the court invalidated an administrative order of the Eighteenth Judicial Circuit which circumscribed the power of the State to refile an information subsequent to entry of a nolle prosequi; and the same court in State v. Garrett, 310 So.2d 751 (Fla. 4th DCA 1975) quashed a general order of the Chief Judge of the Nineteenth Circuit which authorized electronic court reporting because it was deemed a local rule requiring prior approval of the Supreme Court.

We consider that the problems with which the trial judges of this state are confronted, which undoubtedly provoked the order of Chief Judge Willis in the instant case, are of such magnitude and importance, both to those whose responsibility it is to fairly administer justice in the courts, as well as those whose responsibility it is to inform the public on the conduct of judicial proceedings, that we consider it to be a matter of great public interest, and therefore certify to the Supreme Court of Florida, under Article V, Section 3(b)(3), the following question:

Is an order of the Chief Judge of a Circuit providing that all transcripts of depositions in civil and criminal cases in the circuit shall be securely sealed and filed with the court in which the action is pending, and that such depositions may not become unsealed and inspected by the public and the press except by order of the court in which the action is pending, a valid exercise of the administrative authority conferred upon the chief judge under the constitution, laws and rules of procedure governing the courts in Florida?

In view of the fact that Administrative Order 79-17 has been in effect since March 16, 1979, during which time parties in individual cases might have failed to appropriately apply for and obtain a protective order as authorized by the rules, we are of the opinion that a brief period of transition would be justified during which time the effective date of our order setting aside the administrative order will be postponed or suspended, so as to allow application by those parties in individual cases for protective orders as they may deem advisable. It is therefore ordered that the effective date of our order setting aside administrative order 79-17 be stayed or suspended until the 31st day of May, 1979.

It is so ordered.

McCORD, C. J., and ROBERT P. SMITH, Jr., J., concur.

      . This rule establishes an entirely new and independent means of review in the district courts, in recognition of the decision in English v. McCrary, 348 So.2d 293 (Fla. 1st DCA 1977). Committee notes to Rule 9.100, Fla.R.App.P.

      . By emphasizing the procedure spelled out by the rules of procedure we do not suggest the absence of authority on the part of the trial court, on its own motion, to enter such order as may be necessary in the exercise of the court’s inherent power to control the conduct of proceedings so as to ensure the administration of justice.

      . As for the court orders sealing a deposition, we note the treatment of this question by Wright and Miller, Federal Practice and Procedure, Volume 8, Section 2042 (page 299):
      "If a court orders a deposition sealed it normally prohibits the parties and attorneys from making any disclosure of the contents of the deposition to any third party. Judge Henry J. Friendly has written for the Second Circuit that ‘we entertain no doubt as to the constitutionality of a rule allowing a federal court to forbid the publicizing, in advance of trial, of information obtained by one party from another by use of the court’s processes.’ ”

      . We agree with respondent’s observation (response by letter dated April 16, 1979) that depositions are “tools of discovery and preserving evidence”, but we would add further qualifications and observations. A deposition does not become evidence in a case unless and until admitted by ruling of the court at a trial or hearing; that depositions very often contain matters that are not and can never be considered as evidence, since the scope of inquiry on depositions is not limited as in examination of a witness in a judicial proceeding; that persons not even parties to the case are often compelled under process of law to divulge information that is not intended for use as evidence, but merely to elicit or lead to information that might explain other evidence or become admissible as evidence; and the taking of a deposition itself can hardly be categorized as a judicial proceeding” for the simple reason that there is no judge present, and no rulings nor adjudications of any sort are made by any judicial authority. Further, in criminal cases, discovery depositions taken under Rule 3.220(d), Fla.R.Cr.P. may be used only “for the purpose of contradicting or impeaching the testimony of the deponent as a witness”; and deposition testimony may be used as evidence at the trial only if taken to perpetuate testimony under Rule 3.190(j) requiring a court order, notice to defendant, and, if defendant is in custody, his presence at the deposition, and a showing that attendance of the witness cannot be procured at the trial. State v. Basiliere, 353 So.2d 820 (Fla. 1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Joseph HAMILTON and Frances M. Harvey.
    No. 63516.
    Supreme Court of Louisiana.
    April 19, 1979.
    Rehearing Denied May 21, 1979.
    Bernard Jack Usprich, New Orleans, for Frances M. Harvey.
    Larry Williams, New Orleans, for Joseph Hamilton.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Thomas Chester, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendants Joseph Hamilton and Frances M. Harvey were jointly charged by grand jury indictment with possession with intent to distribute heroin in violation of La.R.S. 40:966. On December 8, 1977, after trial before a jury of twelve persons, each defendant was found guilty as charged. Subsequently they were sentenced to life imprisonment at hard labor. Motions to appeal the convictions and sentences were filed on behalf of both defendants.

While the appeal was pending, defendant Hamilton died. Thus the prosecution against him is abated. State v. Ferina, 351 So.2d 1200 (La.1977); State v. Morris, 328 So.2d 65 (La.1976). With respect to defendant Harvey, we have carefully reviewed the four assignments of error urged on her behalf and find that they do not form the basis for a reversal of her conviction and sentence.

Accordingly, as to defendant Hamilton, the appeal is dismissed, the judgment of conviction is vacated, and the case is remanded to the district court with instructions to dismiss the indictment. As to defendant Harvey, the conviction and sentence are affirmed.


author: SUMMERS, Chief Justice. TATE, CALOGERO, and DENNIS, JJ.,

text:
    SOUTHERN MESSAGE SERVICE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 63263.
    Supreme Court of Louisiana.
    April 19, 1979.
    Rehearing Denied May 21, 1979.

      Marshall B. Brinkley, L. P. S. C., Baton Rouge, John M. Madison, Jr., Wiener, Weiss, Madison & Howell, Shreveport, for defendants-appellants.
    Carlos G. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for plaintiff-appel-lee.
   SUMMERS, Chief Justice.

In this 1977 proceeding before the Public Service Commission the applicant Radio & Communication Consultants, Inc., (Radio) seek a certificate of public convenience and necessity as a radio common carrier under the provisions of Sections 1500-04 of Title 45 of the Revised Statutes. The application seeks authority to serve in the Shreveport and Natchitoches, Louisiana, area. The application was protested by Southern Message Service, Inc. (Southern), who claim it has held a certificate of public convenience and necessity as a radio common carrier issued by the Commission since prior to 1968 to serve the same area.

After a hearing held on May 26, 1977 the Commission issued its order dated July 21, 1977 granting to Radio a radio common carrier certificate in the Shreveport and Natchitoches area. In that order the Commission found that applicant’s witnesses testified that service from protestant Southern had not been completely adequate and that complaints had been registered with that company. According to the Commission’s order, one witness further testified that he had to invest in his own system because service from Southern and South Central Bell Telephone Company had not been adequate. In the Commission’s opinion “the public convenience [and] necessity” required issuance of the certificate.

An application for rehearing by Southern was denied by the Commission. Southern then appealed to the Nineteenth Judicial District Court pursuant to the authority of Section 21(E) of Article IV of the Constitution and Sections 1192-95 of Title 45 of the Revised Statutes. In its petition for appeal in the District Court Southern sought and was granted a preliminary injunction restraining and prohibiting the carrying out the Commission’s order pending proceedings on appeal and until a judicial determination was made of the legality of the Commission’s order.

While the validity of the Commission’s order was under consideration by the trial judge Southern moved that Radio show cause why it should not be adjudged in contempt of court for filing for and actively pursuing an application with the Federal Communications Commission for authority to begin operations as a radio common carrier. This action by Radio was alleged to be in direct contempt of the preliminary injunction issued by the District Court.

With the proceedings in this posture the District Court rendered judgment on the merits of the controversy in favor of Southern, annulling, voiding and setting aside the Commission’s order. The trial judge was of the opinion that the testimony of Radio’s witnesses “fell short of showing that plaintiff’s [Southern’s] service was inadequate, much less that it has failed, refused or neglected to provide reasonably adequate service after notice.” Furthermore, the trial judge was of the opinion that the Commission erroneously applied a test applicable to other common carriers, a test inapplicable to radio common carriers. Radio and the Commission then appealed devolutively to this Court.

Radio contends on appeal that Southern does not hold a certificate of public convenience and necessity for Natchitoches and is not authorized to serve that city. Radio also contends here that the Commission’s order is supported by evidence and should not have been annulled in the District Court.

Section 1500 of Title 45 of the Revised Statutes invest the Louisiana Public Service Commission with power to regulate radio common carriers. Section 1502 of that Title imposes the duty on the commissioners to prescribe appropriate rules and regulations. The statute mandates that the Commission make such orders as are necessary to insure that radio common carrier rates, services, rules and regulations are reasonable, just, adequate and not unduly preferential.

Commission certificates must be issued on a finding that the operation is required by the public convenience and necessity before any mobile radio system can be begun, continued, constructed or operated. Generally, no carrier is required to secure a certificate for extension within a municipality or territory when operations are already commenced. Id. 1503 A.

Operators of radio common carriers already certificated on July 31, 1968 received a certificate of convenience and necessity from the Commission to continue if they applied therefor within thirty days of July 31, 1968. Southern’s is such a certificate.

Section 1503 C, which is particularly pertinent to the issues presented here, provides:

“The Commission shall not grant a certificate for a proposed radio common carrier operation or extension thereof which will be in competition with or duplication of any other radio common carrier unless it shall first determine that the existing service is inadequate to meet the reasonable needs of the public and that the person operating the same is unable to or refuses or neglects after hearing on reasonable notice to provide reasonable adequate service.”

I.

Radio’s first contention on appeal is that Southern does not hold a certificate of public convenience and necessity for Natch-itoches and is not authorized to serve that city. The contention is not well-founded.

Southern’s certificate reads:

“A certificate of public convenience and necessity is hereby granted Southern Message Service, Inc., a Radio Common Carrier Company under the laws of Louisiana, whose office or place of business is Shreveport, Louisiana, to provide domestic land mobile radio service between a land station and mobile units within the service area of the central land radio telephone stations (s) at: (1) 627 Crockett St., Shreveport, La.; (2) Approx. 3.2 miles S.E. of Pleasant Hill, La., (3) Dixie Street, Minden, La., (4) 115 West Broad St., Lake Charles, La., (5) 416 Grammon Street, Monroe, La.

Natchitoches is roughly seven miles southeast of Pleasant Hill and is therefore less than 4 miles from the service area of the radiotelephone station situated approximately 3.2 miles southeast of Pleasant Hill. This makes Natchitoches well within the service area of Southern’s Pleasant Hill station.

The fact that Natchitoches is not named in the certificate does not mean that the city is not within the service area of Southern’s transmitter near Pleasant Hill. One of the principal stockholders of Southern and the company president testified that a Natchitoches customer could telephone another customer in that city without making a long-distance call through Shreveport if he requested that service. No base station is situated in Natchitoches, but a control station is in operation there and Southern offers its service in and around the city.

II.

A hearing examiner was appointed by the Commission to hear this case in Alexandria, some distance from the Commission’s domicile in Baton Rouge. At the outset of the hearing Southern’s attorney objected that Southern had not been given proper notice. The entire proceeding was initiated by a brief letter from Radio’s attorney to the Commission, the pertinent portion of which stated:

“Application is hereby made on behalf of our client for a certificate of public convenience and necessity as a radio common carrier, as that term is defined in La.R.S. 45 § 4500 [1500], et seq., authorizing our client to operate as a radio common carrier within the municipalities of Shreveport and Natchitoches.
“Please accept this application and notify us of the date set for hearing. We will provide the names and addresses of witnesses to testify on behalf of the applicant sufficiently in advance of the hearing.”

Radio’s application, Southern argues, has no allegations that the service is inadequate, or of Southern’s failure to properly serve the public, it only asks for a certificate to operate in Southern’s territory. Nevertheless, the hearing proceeded.

Southern’s brief here also points out that the Commission failed to adhere to its “Rules of Practice and Procedure”. Rule 13(D) sets forth the requirements of all pleadings before the Commission:

1) The name of the party seeking to bring about or prevent action by the Commission or other parties.
2) The names of all other parties in interest.
3) A concise statement of the ultimate facts relied upon by the pleader.
4) A prayer stating the type of relief, action or order desired by the pleader.
5) A list of the witnesses who may be called in the event of an oral hearing, and the anticipated time of presentation of the case.
6) Any other matter required by statute or rule.
7) A certificate of service, where service is required by Rule 7(c).

Southern contends that the failure of an administrative agency to adhere to the rules and regulations governing its proceedings is a violation of the constitutional guarantee of due process.

Although the application in this case does not comply with the Commission’s rule in every detail, not even by a correct reference to the statutory authority under which the certificate is sought, the record does supply compliance with some of the deficiencies. A list of interested parties was mailed by the Commission to Southern and others, and the Commission staff did keep the parties informed of the time and place of the hearing. Radio’s letter application also fulfills some of the requirements. Despite the technical failure to observe the rules in some respects there is no felt necessity to meet the due process issue here. The proceeding did develop into a full hearing, after adequate notice, at which both parties presented evidence and had an opportunity to confront the witnesses against them. Southern was well prepared and did protest the application to the full extent. Moreover, Southern has not particularized how it was prejudiced in the premises, nor is prejudice claimed on account of the Commission’s disregard of its rules.

III.

One of the principal questions before the court is whether Radio has satisfied the requirements of Section 1503 C of the statute which prohibits the Commission from granting a certificate on an application if it will be “in competition with or duplication of any other radio common carrier.”

Section 1503 C imposes strict prohibitions against commission certification of applicants where there will be competition or duplication as in the case at bar. Not only does the record establish that competition and duplication will occur, but there is a pervasive tone in Radio’s presentation of its case that it is their intention to serve as Southern’s competitor. To this observation can be added the fact that in the past Ark-La-Tex Mobile Radio Service was once a competitor of Southern in the Shreveport territory, at least until 1971. Because of the limited demand for this duplication of service Ark-La-Tex met financial reverses and its business was acquired by Southern. South Central Bell also owns and operates a radio common carrier system in Shreveport and environs. Other large users, such as the Doctor’s Exchange and IBM, have their own systems. These are not common carriers, but their existence definitely limits customers available to the common carriers.

In addition to the obvious legislative intent to avoid unnecessary competition and duplication of facilities in this area of regulated communications, two additional prerequisites to certification are set forth in Section 1503 C. The Commission must first determine that “the existing service is inadequate to meet the reasonable needs of the public.” Should such a determination be made, the Commission must also find that “the person operating the same [existing facility] is unable to or refuses or neglects after hearing on reasonable notice to provide reasonable adequate service.” Communications Ind., Inc. v. Louisiana Public Service Commission, 260 La. 1, 254 So.2d 613 (1971); Billie White d/b/a Telephone Answering Bureau v. Louisiana Public Service Commission, 259 La. 363, 250 So.2d 368 (1971).

Neither of these requirements were found to be met by the trial judge and we discern no support in this record for a finding that Southern’s service is “inadequate to meet the reasonable needs of the public.” A statute requiring such a determination amounts to a limitation upon the Commission’s concept of public convenience and necessity in that, when the service is “adequate to meet the reasonable needs of the public”, public convenience and necessity is satisfied.

Southern has been operating in the Shreveport and Natchitoches area since pri- or to 1968. In the year preceding the hearing in 1977 it had received no written complaints regarding its service. Although acknowledging verbal complaints in a limited number, the character of the complaints were such that they could not be considered serious or numerous enough to support a determination that its service was “inadequate to meet the reasonable needs of the public.” To the contrary, a description of its service was impressive.

Witnesses who testified in support of Radio’s application cited instances of service they considered faulty two or three years prior to the hearing. One such complaint involved problems with a rented radiophone. After several efforts to have the unit repaired by Southern, the witness turned it in and was given a full refund. Later, however, he again sought Southern’s service and was dissatisfied because they required a $500 deposit before another unit would be installed for him. In essence his complaint arose out of the malfunctioning of a unit not manufactured by Southern and one which Southern made efforts to adjust to the customer’s satisfaction.

Over an objection to hearsay the wife of a man self-employed in the oil field diamond-coring business testified that her husband called Southern in 1975 for a mobile telephone. Southern had no units in stock and offered to order one. Because he was on the bottom of the waiting list he abandoned the request.

In 1974 or 1975 another witness had his wife order a radiophone from Southern to install in his truck. When a unit was not readily available he obtained one from South Central Bell. Because their channels were overloaded and delays were involved in completing calls, he discontinued the Bell service. He never used Southern’s service.

A Consulting Petroleum Engineer operating in Shreveport, East Texas, South Arkansas, North Louisiana, South Louisiana, South Texas and Oklahoma applied for mobile radio service with Southern in 1974. His need for a multichannel set could not be met at that time so he bought one from Motorola for $1,675. The unit performed satisfactorily in all locations except Shreveport until a Motorola Engineer made an adjustment which made the unit work “good ever since.” His associates left the Bell system and subscribed to Southern’s service because Southern’s service included advantages not offered by Bell. When a subscriber was called over Southern’s system and no answer was received Southern would ascertain who the calling party was and make that information available to the subscriber later, a service which the witness said was really good. He objected, however, to the fact that he was charged 20 cents for each such call. He also said he could use a portable radiophone, one not necessarily installed in an automobile, and he would have preferred to rent the unit he bought from Motorola instead of buying. The witness concluded that he was then a subscriber to Southern’s service and “couldn’t do without them really.” He also described the service of Southern’s operators as “superb”.

Southern Research Company in Shreveport has 300 employees. Its Executive Vice-President testified their business required mobile phone or pager type service. It was currently using Southern’s paging service. Prior to and during 1975 they had problems getting coverage with the pagers in the Shreveport Metropolitan area. For this reason the company acquired its own radio system. However, Southern’s service is still used for pagers. The vice-president said his company could use the voice-tone pager proposed to be furnished by Radio. A radio communications carrier in Natchi-toches would be advantageous to his company, he explained. Otherwise this witness was not acquainted with whether the strength of Southern’s stations had been increased since 1975, nor did he know whether Southern has since provided a voice-tone pager service.

Southern’s President testified. He is a resident of Dallas, Texas. The company is owned in equal shares by him and Betty Cannon of Monroe, Louisiana. He said that the company served the Shreveport-Natchi-toches area with the same service proposed by Radio, plus additional service which Radio does not propose to offer. His company also offers the voice-tone, “walkie talkie” equipment upon request, the demand being minimal for this service. This witness made a detailed recitation of Southern’s service to support its position that Radio would offer no service Southern was not then offering, explaining recent improvements and expansions of its service. No increase in rates has been requested by Southern since 1973, and no request for an increase was anticipated. By efficient operation and maintaining a low cost level, and by employing efforts to minimize operational costs Southern has been able to make a “modest profit”. If Radio were to become certificated and would get half of Southern customers Southern would be in trouble, he said, and would have to ask for a rate increase because of the reduced income. Southern was opposing Radio’s application in order that its investment could be protected to serve the customers adequately.

By other testimony and evidence Southern established that its service was good and adequate to meet all requests in the area it served. Customers in the service area attested to the Southern’s good and adequate service.

When two radio common carriers are in direct competition there is a duplication of material and personnel. The high ratio of expense to income limits the amount of capital available to a business for growth and improved service to customers. This condition is compounded in the present case by the presence of South Central Bell and the significant limitation of available customers on account of private mobile radio facilities. Evidence of the result of over duplication of service is apparent in this case. Ark-La-Tex and Southern could not both operate profitably in the same area. After sustaining losses Ark-La-Tex was obliged to sell its business.

It is a basic tenet of public utility regulation that there be no wasteful duplication of facilities. To carry out this concept General Orders of the Commission are designed to prohibit uneconomic and wasteful practices. Such a standard, and the reasons for requiring certificates of convenience and necessity, is to prevent the unnecessary duplication of facilities and to protect the consuming public from inadequate service and higher rates. Public convenience and necessity therefore require that there be no wasteful duplication and that the need be such that duplication will not result in waste. Kentucky Utilities Co. v. Public Service Commission, 252 S.W.2d 885 (Ky.1952); City of Vanceburg v. Plummer, 275 Ky. 713, 122 S.W.2d 772 (1938). On these principles the Commission should refuse to permit a utility to invade territory occupied by another utility furnishing adequate service at reasonable rates.

Radio has presented no evidence that Southern is unable or refuses or neglects to provide reasonable adequate service.

This record satisfies the Court that Radio has not sustained the burden of proof required by Section 1503 C of Title 45 of the Revised Statutes.

For the reasons assigned the judgment of the District Court is affirmed.

TATE, J., dissents and assigns written reasons.

CALOGERO, J., dissents.

DENNIS, J., dissents for the reasons assigned.

TATE, CALOGERO, and DENNIS, JJ.,

dissenting.

We respectfully dissent.

In our view, the majority has erroneously substituted a judicial re-evaluation of the evidence for the findings made by the Louisiana Public Service Commission within the authority granted to it (not to the courts) by our state constitution to regulate the issuance of common carrier certificates.

The Commission order found that the opponent Southern’s service under its existing certificate had not been adequate to meet the needs of the public. On the basis of this finding, it therefore issued a certificate to the applicant Radio so as to authorize what in effect will be a competing service.

The essential issue before us for review is whether this determination by the Commission is so unsupported by the evidence as to constitute an arbitrary and clearly erroneous finding, which thus resulted in an abuse of the Commission’s authority by the issuance of a competing certificate to Radio, the applicant.

The Commission found that the service provided by Southern under its existing certificate, by which it enjoys a virtual monopoly over radio common carrier service in Northeast Louisiana, was insufficiently responsive to the public need. As will be shown below, the evidence before the Commission can be construed to support this finding. Nevertheless, a majority of this court substitutes its view that there is insufficient evidence for us to find inadequate service furnished by the existing monopoly — despite the Commission’s considered view that competition was necessary to provide the public adequate service in radio common carrier services, in view of the delays in furnishing service, shortages of equipment, and inability or refusal by the existing certificate-holder to offer innovative services.

A more detailed examination of the issues and of the evidence will illustrate why, in the opinion of the dissenting justices, the majority of this court has invaded the constitutional authority of the Commission. The majority has done so, by judicially denying a certificate issued to the applicant Radio by the Commission in order, by competitive services, to provide the adequate service needed by the public but not provided by Southern under its existing monopoly.

I.

The applicant Radio filed an application to the Commission to obtain a certificate of public convenience and necessity as a radio common carrier under the provisions of La. R.S. 45:1500-1504. This statute provides that the Commission shall not grant a certificate to authorize a competing or duplicating operation unless it first determines, after hearing on reasonable notice, (a) that the existing service is inadequate to meet the reasonable needs of the public and (b) that the existing operator is unable to provide reasonable adequate service or refuses or neglects to do so. La.R.S. 45:1503 C as interpreted by us in Communications Industries, Inc. v. Louisiana Public Service Comm’n, 260 La. 1, 254 So.2d 613 (1971).

Radio applied for a certificate as a radio common carrier under the cited statute. It sought authority to provide services within the municipalities of Shreveport and Natch-itoches and environs.

A hearing was held after notice to Southern, the opponent. Southern cross-examined the applicant’s witnesses and introduced testimony in opposition to the application.

In its order granting Radio a certificate as radio common carrier under La.R.S. 45:1500-1504, the Commission recited that witnesses had testified that the service of the opponent Southern “had not been completely adequate and that complaints had been registered with the Company.” It further cited the instance of a witness who had been forced to install his own system because of the inadequacy of existing services. The Commission thereupon found that the public convenience and necessity required the issuance of an additional certificate for the Shreveport-Natchitoches area.

Southern attacks the Commission’s order on two principal substantive bases. It contends: (A) That the commission failed to require the applicant to meet the burden statutorily required by La.R.S. 45:1503 C before issuing a certificate authorizing a competing service (see II below of opinion); and (B) That the Commission’s finding is unsupported by the evidence and is therefore arbitrary and capricious (see III below).

II.

Aside from questioning the factual bases of the Commission’s determination, Southern emphasizes that, even if the Commission properly found that existing services by Southern were inadequate, its order did not (at least expressly) find also, as required by La.R.S. 45:1503 C (set footnote 1 above) that the existing operators were unable to or had refused to provide reasonably adequate service. See Communications Industries, Inc. v. Louisiana Public Service Comm’n, 260 La. 1, 254 So.2d 613 (1971).

Although inartistically drafted, the Commission’s order in our opinion indicates its acceptance of testimony before it that, despite customer complaints of inadequacy, Southern had been unable to, and was presently unable to, meet the demands of public convenience and necessity. Following such finding, the Commission’s order recites the Commission’s opinion that “the public convenience necessity requires the issuance of an additional radio common carrier certificate for the Shreveport-Natchitoches area” —which we take to mean a Commission finding that, in order to meet the public need, it was required to issue the additional certificate to provide additional or alternative service needed by the Shreveport-Natchitoches area.

We therefore do not find merit to Southern’s complaint that the Commission did not apply the correct statutory standard in granting the additional radio common carrier certificate to Radio. We are re-enforced in this view, in that Southern expressly sought rehearing before the Commission on this basis, and the Commission denied such rehearing, after reconsideration, again reciting that Radio was issued its certificate under the provisions of La.R.S. 45:1500— 1504.

III.

Southern further contends that totally unsupported by the evidence are the Commission’s requisite findings (a) that the service to the Shreveport-Natchitoches area presently furnished by Southern under its existing certificate is inadequate and (b) that Southern is unable to or had refused or neglected to provide reasonably adequate service.

The trial court concluded that the testimony of the applicant’s witnesses (naming Goslin, Taylor, Collier and Scoggins) showed neither inadequacy of Southern’s services nor that it had failed, refused, or neglected to provide adequate service. In so doing, in our opinion the trial court erred by not applying the standard of judicial review to such Commission determinations enunciated by us in Communications Industries, Inc. v. Louisiana Public Service Comm’n, 260 La. 1, 254 So.2d 613, 616 (1971):

“Radio-telephone communications is a technical service entrusted to the jurisdiction of the Louisiana Public Service Commission. Under well-accepted standards of judicial review, the Commission’s ruling will be set aside only if the ruling is arbitrary, capricious or abusive of power.”

Construed (as required) most favorably to the Commission’s determination, the evidence upon which the Commission relied shows:

The witness Goslin, a realtor, testified: About thirty days before the hearing, he had called Southern to request two-way walkie-talkie radio service. The manager informed him that such service was not available at this particular time, and that he did not know when the units would be available. When he requested installation of a mobile phone (i. e., installed instead in his automobile), the manager stated there was a waiting list and that he would call the witness back. In 1975 the witness had been a Southern subscriber, but due to the inadequacy of service afforded him had withdrawn as a customer. Because of his need for radio communications, and despite his prior dissatisfaction, he had sought in 1976 to obtain reinstallation of the system; Southern at first refused to accept his application, then demanded an exorbitant deposit, and then failed to return his calls to the owner to make more reasonable deposit arrangements.

The witness Boddie, executive of a security and investigation company with 300 employees, testified that he had been a Southern subscriber since 1975. Because of the inadequacy of Southern’s services in relaying messages and in providing two-way communication (despite numerous complaints by him for better service), his company had been forced to invest $50,000 in its own radio system. His company still used Southern’s radio-pager system, which was adequate for downtown Shreveport, although inadequate for his purposes outside of that area, especially in the western part of Caddo Parish.

The witness Scoggins, a consulting petroleum engineer, testified that he has been a subscriber of Southern since 1974. He testified that he had been forced to buy his own multi-channel set for radio communications via Southern because Southern had none available at the time. He also testified to some congestion and delay in the use of the channels available through Southern for the radio-telephone service to which he subscribed.

The witnesses Collier (a contractor) and Taylor (office manager of her husband’s oilfield diamond-coring business) testified to their unsuccessful attempts in 1975 to obtain Southern’s radio carrier services in 1975 and to being told they must be put on waiting lists for at least one or two months. They had never re-applied.

The applicant’s officers testified to their intention to offer two-way communication by portable units (which can be moved from the subscriber’s car rather than installed therein), as well as by two-way service within the cars, a service not readily available from Southern, the existing carrier (see footnote 1). Three of the applicant’s witnesses testified to the need for such service, and at least two of them testified they had sought to obtain it from Southern without success or without adequate relay-of-message service furnished by Southern.

Some of the evidence before the Commission thus showed (a) the inadequacy of service presently offered by Southern in the Shreveport-Natchitoehes area under its existing certificate and (b) the inability or refusal, despite customer request, of Southern to afford adequate service, particularly of two-way communication between customer and caller.

The sufficiency of the evidence before the Commission is not re-weighed by the courts upon judicial review, and the courts will not overturn a Commission determination when there is some evidence upon which the Commission could reasonably base its finding. B & M Trucking, Inc. v. Louisiana Public Service Comm’n, 353 So.2d 1323, 1327 (La. 1977).

As we stated in Louisiana Power & Light Co. v. Louisiana Public Service Comm’n, 358 So.2d 623, 626 (La.1978) (citations omitted):

“ * * * [W]hile a ruling of the commission may be deemed arbitrary unless supported by some factual evidence, the function of the court on judicial review is not to re-weigh and re-evaluate the evidence and to substitute its judgment for that of the administrative agency constitutionally entrusted with regulation of the matter. * * * ‘Whenever the Public Service Commission, in the issuing of an order, has acted within its power, and not arbitrarily or grossly contrary to the evidence, and when no error of law has been committed, the court must not substitute its judgment for that of the commission, or consider the expediency or wisdom of the order, or say whether on like evidence the court would have made a similar ruling.’ ”

Conclusion

Accordingly, we respectfully dissent from the majority opinion’s affirmance of the judgment of the district court, which annulled the Commission order granting the certificate to Radio & Communication Consultants, Inc.

      . La.R.S. 45:1503 C provides in full:
      “The commission shall not grant a certificate for a proposed radio common carrier operation or extension thereof which will be in competition with or duplication of any other radio common carrier unless it shall first determine that the existing service is inadequate to meet the reasonable needs of the public and that the person operating the same is unable to or refuses or neglects after hearing on reasonable notice to provide reasonable adequate service.”

      . Southern complains that the pleadings by which Radio applied for its certificate did not meet the technical requirements of the Commission’s rules and thus did not give adequate notice of the factual basis of its contention that Southern’s prior service was inadequate.
      Despite such technical deficiencies in pleading, the proceeding did develop into a full hearing, after adequate notice, at which both parties had full opportunity to confront the witnesses against them and to produce witnesses on their own behalf. Although at the commencement of the Commission hearing Southern made a formal objection to the pleading deficiency, it did not request a continuance. In fact, it presented a well prepared case in opposition to the application.
      Under the circumstances, in the absence of any shown or claimed prejudice, we are unable to find that the Commission’s relaxed application to its pleading rules is an abuse of its discretion in the administration of its hearings.

      . See, e. g., Louisiana Power & Light Co. v. Louisiana Public Service Comm’n, 358 So.2d 623 (La. 1978) and B & M Trucking, Inc. v. Comm’n, 353 So.2d 1323 (La. 1977).

      . Although the president as well as the manager of Southern testified that Southern offered two-way service, at least upon request and approved application, Southern’s newspaper advertisements and brochures did not list this as a service available to the public. Nor did Southern’s manager deny, in his subsequent testimony, the conversation with Goslin.


text:
    STATE of Louisiana v. Bernard FRANCIS.
    No. 63579.
    Supreme Court of Louisiana.
    April 19, 1979.
    William J. O’Hara, III, Director; Peter G. Warner, Student Practitioner, Loyola Law School Clinic, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Maurine Carroll, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Bernard Francis was charged by bill of information with distribution of heroin in violation of La.R.S. 40:966(A)(1). On October 9, 1974, after trial by jury, he was found guilty as charged. The trial court imposed the mandatory sentence of life imprisonment. Defendant appealed his conviction and sentence to this Court relying on several assignments of error. This Court affirmed his conviction, State v. Francis, 345 So.2d 1120 (La.1977), but also noted that despite the establishment of an adequate chain of custody over the evidence (24 tin-foil packets) by the state, a substantial discrepancy existed between the weight of that evidence as measured in New Orleans by the arresting officer, and as measured in Miami, Florida by a chemical analyst. The Court, therefore, remanded the case to the district court for a redetermination of the connexity of the evidence to this prosecution, with the right of appeal reserved to defendant in the event of an adverse ruling. State v. Francis, 345 So.2d at 1126.

The trial court conducted an evidentiary hearing pursuant to the remand order on August 22, 1978. At the conclusion of the hearing, the court concluded that it had not erred in admitting the evidence at trial. Defendant now appeals from that ruling.

We have reviewed the evidence adduced at the hearing below and have determined that there was no error in the trial court’s ruling. Together with the chain of evidence that we found established in State v. Francis, supra, testimony at the hearing provides a satisfactory explanation for the weight discrepancy, and a satisfactory basis for the trial court’s conclusion that more probably than not the evidence was connected with the case and properly before the jury. State v. Drew, 360 So.2d 500 (La.1978).

Accordingly defendant’s conviction and sentence are affirmed.

CALOGERO, J., dissents.


text:
    STATE of Louisiana v. Roland RANKER.
    No. 63597.
    Supreme Court of Louisiana.
    April 19, 1979.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert T. Myers, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Roland Ranker was charged in 1975 by bill of information with armed robbery in violation of R.S. 14:64. After trial by jury on October 21, 1975, he was found guilty as charged. The trial court thereafter sentenced him as a fourth felony offender, R.S. 15:529.1, to ninety-nine years’ imprisonment at hard labor. We reversed that conviction, State v. Ranker, 343 So.2d 189 (La.1977). Following remand of the case, the state secured a second conviction, June 27, 1977. We reversed again, State v. Ranker, 359 So.2d 129 (La.1978). A third trial, September 19, 1978, had led to defendant’s present conviction, and his resentenc-ing as a fourth felony offender to ninety-nine years’ imprisonment.

We have reviewed defendant’s assignments of error relating to his conviction and find them without merit. To that extent, we now affirm. However, we agree with defendant that the trial court erred in failing to conduct a new evidentiary hearing into the allegations of the state’s multiple bill. That hearing was requested by counsel, and made pertinent by a timely motion to quash. The trial court relied instead on its prior determination in 1975. In that proceeding, December 22, 1975, the state introduced duly-authenticated copies of bills of information indicating defendant’s pleas of guilty to felony charges in 1970, 1971, and 1972. None of these informations indicates that defendant was represented by counsel at the time he entered his pleas, or that the trial court conducted an appropriate inquiry into the voluntariness of the plea, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). As we set forth in detail in State v. Hoffman, 345 So.2d 1, 4 (La.1977), “[t]he record must affirmatively show that the accused either was accompanied by counsel or that he was informed of his right to counsel and waived that right, and that the plea was knowingly and intelligently entered. See also State v. Guillotte, 297 So.2d 423 (La.1974); State v. Coody, 275 So.2d 773 (La.1973).’’ We reaffirm that “[i]n the absence of such showing, such convictions cannot serve to enhance the penalty under the multiple offender statute.” State v. Hoffman, supra.

As these questions were not placed at issue in the 1975 hearing, and as defendant’s previous sentences were set aside at the time the earlier convictions were reversed, the trial court should have conducted a new hearing into the allegations contained in defendant’s motion to quash the multiple bill prior to resentencing defendant. See, State v. Hill, 340 So.2d 309 (La. 1976). If, at such hearing, the state cannot produce records contemporaneous with each plea indicating representation by counsel (or waiver thereof) and proper Boykinization, the trial court should then grant defendant’s motion and quash the multiple bill. State v. Lewis, 367 So.2d 1155 (La. 1979).

Accordingly, defendant’s conviction is affirmed, but his sentence is set aside, and the case is remanded to the district court for further proceedings consistent herewith.


text:
    STATE of Louisiana v. Roland KNOX.
    No. 63134.
    Supreme Court of Louisiana.
    April 19, 1979.

      Alton T. Moran, Director, Allen J. Ber-geron, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Defendant, Roland Knox, was charged by bill of information with armed robbery, in violation of La.R.S. 14:64. Defendant, after waiving his right to a jury trial, was tried by judge and found guilty of the charged crime. Subsequently, he was billed and found guilty of being a second felony offender in accordance with La.R.S. 15:529.-1, and sentenced to serve thirty-five years at hard labor without parole, probation or suspension of sentence.

Defendant specified sixteen assignments of error before the trial court. Four of the assignments are not considered because they were neither briefed nor argued. The remaining assignments present no error which warrants a reversal of defendant’s conviction and sentence at this time. However, one of the assignments points to an error which requires a remand to the trial court for a hearing on defendant’s mental capacity to proceed at the time of his trial.

Defendant contends, in assignment of error number three, that the trial court committed error in granting the state’s motion to recall a sanity commission appointed to examine defendant.

The record establishes that the trial court, pursuant to a defense motion, appointed a sanity commission to examine defendant on April 7, 1978, and set May 22, 1978 as the date for a hearing to determine if defendant was competent to stand trial. Before the date scheduled for the hearing, the case was called for trial on April 12, 1978, whereupon defense counsel noted that the sanity hearing was still pending. Over a defense objection, it was arranged for Dr. Hypolite Landry, the East Baton Rouge Parish Coroner and one of the members of the sanity commission, to promptly examine defendant. The court scheduled the sanity hearing for the next day, April 13, 1978. On that date, the trial judge found defendant competent to stand trial solely on the strength of the written report of Dr. Landry. The state moved orally for an order recalling the appointment of the sanity commission, which was granted by the trial court over a defense objection. No evidence or oral argument was presented on the issue. The case was tried the next day, April 14, 1978.

The actions of the trial judge were in clear contravention to the Code of Criminal Procedure. By recalling his prior order appointing a sanity commission and considering the issue on the strength of a single doctor’s written report, the trial judge acted contrary to La.C.Cr.P. Art. 647, which requires that the issue of mental capacity to proceed be determined by a contradictory hearing. The trial judge, apparently having some doubt regarding the defendant’s sanity as he ordered the appointment of the sanity commission, was not free to summarily dismiss the matter on the strength of a single doctor’s report. As this Court recently noted in State v. Clark, 367 So.2d 311, 313 (La.1979):

The trial court clearly may not substitute the examination and report of a single physician for that of a duly appointed sanity commission. Nor may the trial court conduct further proceedings against the defendant after his mental capacity to proceed is raised, until the defendant is found by lawful procedures to have the capacity to proceed. When a mental examination as to the defendant’s present capacity to proceed is ordered, the question must be determined by the court in a contradictory hearing. La.C. Cr.P. art. 647. At the very least, the defendant is entitled to introduce the report of a duly constituted sanity commission into evidence at the hearing. La.C. Cr.P. art. 647. It necessarily follows, therefore, that the court may not, after ordering a mental examination, determine the question of mental capacity to proceed or take further steps in the criminal proceedings without appointing a duly constituted sanity commission to examine and report upon the mental condition of the defendant.

The trial court clearly committed error in this case. However, it is unnecessary to set aside the court’s verdict at this time because we find no other error and the issue as to capacity may be clarified on remand. See State v. Weber, 364 So.2d 952, 957-58 (La.1978); State v. Bennett, 345 So.2d 1129, 1138-39 (La.1977). We therefore remand the case to the trial court for reappointment of a sanity commission and for a contradictory hearing on the defendant’s capacity at the time of his trial, reserving to the trial judge the right to set aside the conviction and sentence should he find that the defendant lacked the mental capacity to proceed. If, on the other hand, the trial judge determines that the defendant was competent to stand trial, the right to appeal from the ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

For the reasons assigned, the case is remanded to the district court for further proceedings in accordance with law and the views herein expressed.

MARCUS, J., does not participate.


text:
    STATE of Louisiana v. George T. BENNETT.
    No. 63601.
    Supreme Court of Louisiana.
    April 19, 1979.
    Morris G. Becnel, Manina D. Dubroca, Boutte, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty., Norman J. Pitre, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On June 30, 1977, the St. Charles Parish Grand Jury indicted defendant George T. Bennett for the first degree murder of Mehmet Kilis, La.R.S. 14:30. On motion by the state, the charge was reduced to second degree murder on September 11, 1978. Shortly thereafter, defendant was tried before a twelve person jury which found him guilty of manslaughter. The trial court sentenced defendant to serve ten years at hard labor. On appeal, he urges three assignments of error for reversal of his conviction and sentence.

We find that none of the assignments present reversible error, nor do any involve legal issues not governed by clearly applicable legal principles. Some of the assignments require lengthy factual discussion of interest primarily to the parties, but not involving circumstances likely to recur. We have therefore discussed and disposed of them in an appendix attached to this opinion, which remains a public record of this Court but which is not for publication.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


text:
    John W. ROBERTS, II v. ALLIED CHEMICAL CORPORATION et al.
    No. 64246.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re National Maintenance Corporation and United States Fidelity and Guaranty Company, applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 369 So.2d 1114.

Writ denied.


text:
    CARRUTH MORTGAGE CORP. and Bank of Commerce & Trust Co. and American Bank & Trust Co. v. F & B BUILDERS, INC.
    No. 64322.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Baton Rouge Supply Co., Inc. and Baton Rouge Plumbing Supply, Inc. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 369 So.2d 1159.

Writ denied.

TATE, MARCUS and BLANCHE, JJ., would grant the writ.


text:
    HOUSE OF REPRESENTATIVES, etc., et al. v. Sherman A. BERNARD and Richard C. Britson.
    No. 64346.
    Supreme Court of Louisiana.
    April 26, 1979.
   In re Sherman A. Bernard and Richard C. Britson applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 369 So.2d 1164.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Daniel W. LeBlanc, Judge of the Nineteenth Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, IMMEDIATELY the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Tony Shane PETERS.
    No. 64628.
    Supreme Court of Louisiana.
    May 11, 1979.
   In re Tony Shane Peters, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Calcasieu. No. 5018-78.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Dannye K. TELFORD.
    No. 64643.
    Supreme Court of Louisiana.
    May 17, 1979.
   In re Dannye K. Telford applying for writ of certiorari. Parish of Union. No. 23659.

Writ denied.


author: BAILES, Judge.

text:
    Paula THAMES v. CITY NATIONAL BANK OF BATON ROUGE et al.
    No. 12607.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1978.
    Rehearing Denied May 29, 1979.
    Writ Refused July 3 , 1979.
    Arthur Cobb, Baton Rouge, of counsel, for plaintiff-appellant Paula Thames.
    Paul Marks, Jr., Baton Rouge, of counsel, for defendant City National Bank of Baton Rouge et al.
    Before ELLIS, LOTTINGER and BAILES, JJ.
   BAILES, Judge.

This is a suit for damages arising from alleged violations of the Equal Credit Opportunity Act which is found in Sections 1691 et seq. of Title 15 of the United States Code.

The plaintiff alleges that City National Bank of Baton Rouge, Louisiana, and James B. Quinn, an officer and branch manager of the bank, discriminated against her because of her sex and marital status and that they violated certain provisions of the Equal Credit Opportunity Act by discouraging her from applying for credit with the bank and by failing to provide her with specific reasons why her alleged application for credit was denied. Actual and punitive damages and attorney’s fees are sought as a result of those actions.

On June 30, 1977, the plaintiff decided to purchase a 1975 Chevrolet El Camino truck which she had seen on a used car lot. That afternoon, she went to the Government Street branch of City National Bank with her son and her brother-in-law to attempt to borrow $2,000.00, which was the full purchase price of the vehicle.

Upon arriving at the bank, she spoke with the manager, Quinn, who did not know her personally. Her husband, however, was well known to him because he had been a customer there on previous occasions and had an excellent credit reputation with that bank.

The conversation that ensued between Quinn and Mrs. Thames is a matter of considerable disagreement. In summary, the plaintiff states that she attempted to borrow the money necessary to make her purchase but that she was discouraged from doing so by Quinn without reason and that he discriminated against her because he would have no credit dealings with her on her own application unless her husband concurred.

Quinn related, however, that he evaluated her oral application and felt that he could not accept it at that time because of her inadequate income and because she did not have a sufficient down payment. He denied that he required her husband’s signature on any loan that she made, but he did indicate to her that it would be necessary for her to have someone act as an endorser for her.

Having been offended by the actions of Quinn, Mrs. Thames subsequently visited the main office of the bank and expressed her complaints to two bank officers, Merle Alexander and Daniel R. Brown. At that time, Brown gave her a loan application form and requested that she submit it for consideration. This was never done.

On July 7, 1977, she wrote a letter to Quinn in which she requested that she be given written reasons as to why her application was not accepted. On July 14, Brown responded to her on behalf of the bank by letter. That letter states in pertinent part:

“Thank you for your letter of July 7 to Mr. James B. Quinn in which you ask for the reasons for denial of your application for credit on June 30.
After discussing this matter with Mr. Quinn we are of the opinion that he, as a result of his long time business relationship with you and your husband, handled the transaction in the routine manner in which your previous credit requests were handled.
We are anxious to receive an application from you for this particular request and enclose a form for completion. Please return this to me at your earliest convenience, either by mail or in person. I assure you that your application will receive our immediate attention and complete consideration. We regret any inconvenience that you might have been caused.
If you have any further questions regarding this matter please let us hear from you.”

No further action transpired between the parties until this suit was filed on September 8, 1977. The case was thereafter tried to a jury and verdicts were returned in favor of both defendants on all issues. We find no reversible error in those judgments.

The appellant contends that the action of the trial court should be modified in two respects. First, it is maintained that a directed verdict should be ordered in its favor because of the failure of the bank to give satisfactory written reasons for refusing to immediately make the loan. Next, it is argued that the jury instructions as to punitive damages were inadequate. During the course of the trial, the court granted the defendants’ motion for a directed verdict as to the plaintiff’s claim that she was discouraged by Quinn and the bank from making a credit application. The appellant does not complain of that ruling here.

The scope of review by a state appellate court of a jury verdict under the Equal Credit Opportunity Act seems to be a matter of first impression here. In Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971), the court stated:

“In reaching its decision the appellate court properly recognized that its review of the jury verdict in suits under the general maritime law as expanded by the Jones Act is, necessarily, the same as that of the federal courts. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272; and Macomber v. De Bardeleben Coal Co., Inc., 200 La. 633, 8 So.2d 624. The defendants do not dispute this.
“Accordingly, although Louisiana appellate courts have the constitutional authority to review both the law and the facts of a case, they may not, under federal law and jurisprudence, disturb the finding of a trial jury on the merits in such cases unless there is no reasonable basis for the jury’s conclusion the death or injury resulted from the negligence of the defendant-employer. Rogers v. Missouri Pacific R. Co., supra; Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798; and Lavender v. Kurn, supra.

This is not a case under the general maritime law and the issue as to our function is not without some doubt. See 46 Tulane Law Review 992. However, in light of the well settled federal precedent against the substitution of other views for that of the trier of fact, we conclude that we are bound to review this jury decision as a federal appellate court would. Bowman v. Illinois Central Railroad Company, 11 Ill.2d 186, 142 N.E.2d 104 (1957); Pennell v. Baltimore & Ohio Railroad Company, 13 Ill. App.2d 433, 142 N.E.2d 497 (1957); Wright, Law of Federal Courts, 3rd Ed. 193; 73 Harv.L.Rev. 1551.

Several provisions of the Equal Credit Opportunity Act are directly applicable here.

“§ 1691. (a) It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction—
(1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract);
(2) because all or part of the applicant’s income derives from any public assistance program; or
(3) because the applicant has in good faith exercised any right under this chapter. * * * * * *
“(d)(1) Within thirty days (or such longer reasonable time as specified in regulations of the Board for any class of credit transaction) after receipt of a completed application for credit, a creditor shall notify the applicant of its action on the application.
(2) Each applicant against whom adverse action is taken shall be entitled to a statement of reasons for such action from the creditor. A creditor satisfies this obligation by—
(A) providing statements of reasons in writing as a matter of course to applicants against whom adverse action is taken; or
(B) giving written notification of adverse action which discloses (i) the applicant’s right to a statement of reasons within thirty days after receipt by the creditor of a request made within sixty days after such notification, and (ii) the identity of the person or office from which such statement may be obtained. Such statement may be given orally if the written notification advises the applicant of his right to have the statement of reasons confirmed in writing on written request.
(3) A statement of reasons meets the requirements of this section only if it contains the specific reasons for the adverse action taken. * * * * * *
(6) For purposes of this subsection, the term “adverse action” means a denial or revocation of credit, a change in the terms of ah existing credit arrangement, or a refusal to grant credit in substantially the amount or on substantially the terms requested. Such term does not include a refusal to extend additional credit under an existing credit arrangement where the applicant is delinquent or otherwise in default, or where such additional credit would exceed a previously established credit limit.”

Whether the bank would be liable under the theory that it failed to give satisfactory written reasons for its actions involves other interrelated factual issues to be resolved by the trier of fact and if any of them were decided adversely to the plaintiff, there would be no necessity for the jury to go further. The first inquiry for the jury would be whether an application was, in fact, made. If it concluded that there was an application, it would then become necessary for it to decide if the application was denied. Finally, if the application was denied, were the written reasons given by the defendant unsatisfactory under the law.

The record contains considerable factual conflict concerning each of these issues and sufficient facts are present to decide in either party’s favor. The jury was also instructed on the law as to each issue. We do not know how the jury resolved those issues but, as noted in Tennant v. Peoria & P. U. R Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520, the court stated:

“ * * * ‘The very essence of (the jury’s) function from among conflicting inferences and conclusions that which it considers most reasonable.’ And, in the Ellerman case, supra, the court emphasized that neither it ‘nor the Court of Appeals can redetermine facts found by the jury any more than the District Court can predetermine them.’ ”

And in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916, the court also said:

“ * * * ‘It is no answer to say that the jury’s verdict involved speculation and conjecture. * * * Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where * * there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.’ ”

Since there is sufficient evidence for the jury to decide either for the plaintiff or for the defendants, this judgment will not be disturbed. We are not at liberty to substitute our own opinion of those facts for those of the jury.

Counsel for the appellant argues strenuously that the case of Carroll v. Exxon Co., U. S. A., 434 F.Supp. 557 (E.D.La.1977) is decisive in appellant’s favor of the question as to whether the reasons furnished by the bank for the supposed denial of credit were adequate. For the reasons previously stated herein, that decision need not be considered here because we do not know whether the jury found it necessary to reach that question in its deliberations.

The appellant’s final contention is that the trial judge inadequately defined and instructed the jury as to punitive damages. That issue is moot and no longer material, however, in view of the jury’s finding for all defendants and our judgment here. Debose v. Trapani, 295 So.2d 72 (La.App., 4th Cir. 1974). Here the jury rejected liability of defendant and the issue of punitive damages was not reached.

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

AFFIRMED.


author: CHIASSON, Judge.

text:
    Allen McGUIRE v. A. E. SMITH et al.
    No. 12576.
    Court of Appeal of Louisiana, First Circuit.
    April 16, 1979.
    Rehearing Denied May 29, 1979.

      Chris J. Roy, Alexandria, for Allen McGuire, plaintiff-appellee.
    J. Rodney Ryan, Jr., Baton Rouge, for Bituminous Casualty Corp., intervenor-ap-pellee.
    Calvin E. Hardin, Jr., Baton Rouge, for Alfred E. Smith and George D. Carlton, defendants-appellants.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   CHIASSON, Judge.

This is an appeal from the granting of a summary judgment in favor of an insurer, third party defendant. Plaintiff is Allen McGuire who alleges that he was injured while employed by Servitron, Inc. and that his injuries were caused by the negligence of two defendants, Alfred E. Smith and George D. Carlton, who are, respectively, the president and construction superintendent of Servitron. Smith and Carlton filed a third party action against Bituminous Casualty Corporation, which had issued a policy of liability insurance to Servitron insuring Servitron and its executive officers. The policy included comprehensive general liability insurance and comprehensive automobile liability insurance.

Bituminous filed a motion for summary judgment on the basis of the provisions in its policy, which Bituminous contends, entitled it to judgment as a matter of law.

The trial court granted summary judgment to Bituminous, and third party plaintiffs, Smith and Carlton, have appealed.

Appellants made the following specifications of error:

1. The lower court erred in concluding that the “GENERAL LIABILITY AUTOMOBILE POLICY” of Bituminous did not, either under its “COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE” provisions or under its “COMPREHENSIVE GENERAL LIABILITY INSURANCE” provisions, or both, afford coverage to Smith and Carlton against the claims asserted against them by McGuire.
2. Irrespective of the above, the lower court erred in dismissing the claim of Smith and Carlton against Bituminous for attorneys’ fees in defending this suit, in view of the allegations of liability and coverage in McGuire’s petitions and in view of the allegations in the third party petition that Bituminous had failed and refused and neglected to defend Smith and Carlton against McGuire’s claims upon the tendering of said defense to Bituminous.

The issue on appeal is whether, as a matter of law, Bituminous, the appellee, is entitled to a judgment dismissing the appellants’ suit against it. The question turns on whether the policy affords coverage to the appellants against the claims asserted against them by McGuire, plaintiff in the main demand.

Before we examine the pertinent policy provisions, we find from the record that appellee is not disputing that appellants are listed as insureds under the policy. Appel-lee’s motion for summary judgment was based on the exclusions in the policy.

The comprehensive automobile liability feature of the policy provides that the insurer “will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of C. bodily injury or D. property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile . . .”

Appellants are listed as insureds in the comprehensive automobile liability feature of the policy. Following the listing of insured, the policy provides:

“None of the following is an insured:
(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment;” (Emphasis supplied)

Under the comprehensive automobile liability provisions appellee argued that since the appellants are employees of Servitron at the time of the alleged automobile accident, that they are not insureds by virtue of Part II, Persons Insured, the second paragraph, subsection (i), which is underscored above. [This section is known as the cross-employee exclusion].

The comprehensive general liability feature provides the insurer “will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies, caused by an occurrence.”

Appellants are listed as insureds in the comprehensive general liability feature of the policy. In the exclusions’ portion of the comprehensive general liability feature the following pertinent section provides:

“Exclusions
This insurance does not apply:
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
(1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or
(2) any other automobile or aircraft operated by any person in the course of his employment by any insured;
but this exclusion does not apply to the parking of an automobile on premises owned by, rented to or controlled by the named insured or the ways immediately adjoining, if such automobile is not owned by or rented or loaned to any insured;” (Emphasis supplied).
[We designate this as the “automobile exclusion.”]

Appellee argued that the appellants are insured under the policy but the “automobile exclusion”, cited above, in the comprehensive general liability feature denies coverage to the appellants.

To summarize appellee’s argument is essentially as follows: Appellants are insureds under the comprehensive automobile liability feature but coverage is denied them because of the “cross-employee exclusion”; appellants are insureds under the comprehensive general liability feature but coverage is denied them because of the “automobile exclusion.”

Appellants’ argument is simple. Servi-tron bought and paid for coverage for its corporate and executive officers; appellants are insureds in the policy and therefore coverage is afforded them under the policy against the plaintiff’s claims.

Recently, the Louisiana Supreme Court discussed a cross-employee exclusion provision which is identical to the same provision in the instant case. Credeur v. Luke, et al., 368 So.2d 1030 (1979).

In Credeur the plaintiff had sued two corporations and the president of these corporations for injuries sustained in an accident while he was working in the course and scope of his employment. The defendants’ insurer was granted a summary judgment by the lower court on the basis under the comprehensive general liability provisions, coverage was denied by an automobile exclusion and under the comprehensive automobile liability provisions, coverage was denied because of the cross-employee exclusion. The Court in Credeur found the “cross-employee exclusion” was ambiguous.

We are aware of the Court’s distinguishing a policy having as its only named insured a corporation and a policy having as a named insured an individual. As the Court said in Credeur:

“ * * * In a policy in which the only named insured is a corporate employer, it may indeed make sense coverage-wise to exclude as insureds all employees of the company including executives for the reason that injured co-employees are designedly restricted in the policy’s contemplation to recovery of workmen’s compensation benefits where injured in the course and scope of employment through the negligence of another employee of the company including by negligent operation of a motor vehicle. It is entirely another matter where a named insured is an individual who is also an employee of the corporation for whom the plaintiff employee works. The individual employed by the corporation, even as president, is not an employer of Alton Credeur and is not exposed to a workmen’s compensation obligation, nor clothed with the protective features of the compensation act. The cross-employee exclusion is not, even arguably, designed to apply with respect to an individual who is not plaintiff employee’s employer. See Motor Vehicle Casualty Company, 247 Minn. 151, 76 N.W.2d 486 (1956).”

However, in the paragraph following the one just quoted above the Court stated:

“Independent of the foregoing reasons, and more directly pertinent in the resolution of the legal issue before us, the provisions of the policy are ambiguous. In the one instance the policy declares that the named insured is an insured. In a second provision the policy declares in effect that an employee is not an insured (in given circumstances). The established rule is that any doubt or ambiguity as to the meaning of a provision in an insurance policy must be construed liberally in favor of the insured and against the insurer. When the ambiguity relates to a provision which limits liability under the policy, the law requires that the contract be interpreted liberally in favor of coverage. Craft v. Trahan, 351 So.2d 277 (La. App. 3rd Cir. 1977).”

We find this language to be controlling in the instant case. We find the provisions of the policy in the instant case to be ambiguous. In the comprehensive automobile liability one provision declares the appellants are insureds, and in another provision (the cross-employee exclusion) the policy declares that the insureds are not insured. Since there is doubt or ambiguity as to the meaning of the provisions of the policy which limit liability under the policy, the policy must be construed liberally in favor of the insured for coverage.

For these reasons the judgment of the lower court sustaining the motion for summary judgment is reversed and the case is remanded for further proceedings not inconsistent with the views expressed herein. Costs of this appeal are assessed against appellee.

REVERSED AND REMANDED.

      . Plaintiff alleges that his injury occurred because of the negligence of Smith and Carlton in giving him a defective truck to use, notwithstanding the fact that the vehicle in question caused the accident. Plaintiff’s petition also alleges the truck malfunctioned, plaintiff lost control, and a collision resulted.