author: BOYER, Chief Judge.

text:
    Billy G. DRENNEN, Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Appellee.
    No. W-340.
    District Court of Appeal of Florida, First District.
    March 5, 1976.

      Bill E. Parker of Parker & Morton, Milton, for appellant.
    Gary B. Lane, Pensacola, for appellee.
   BOYER, Chief Judge.

In this libel and slander action, appellant, plaintiff in the trial court, appeals from a directed verdict entered in favor of appellee at the conclusion of appellant’s case. Appellant raises several points on appeal, alleging that the publication was libelous per se and not qualifiedly privileged, that there was sufficient evidence of slander to establish a prima facie case, that there was similar evidence of malice, and that certain testimony excluded as hearsay evidence by the trial judge should have been admitted into evidence.

The events leading up to the publication of the alleged defamation began on September 7, 1973, when appellant, an employee at appellee’s Pensacola plant, took some pieces of company owned scrap rods and taped the ends together in order to facilitate his physical exercise program which he conducted on company property during his meal break. Appellant placed the pieces of scrap rods in his truck because, as he testified, he intended to use them again on the following night for the same purpose. His supervisors became aware of his actions and, after discussing the matter with appellant, suspended him. Rumors began circulating around the plant concerning the incident involving appellant. In response, appellee published a “work place meeting script” which stated that an employee had committed a class “A” offense as defined by- the employee handbook. The meeting script specifically alleged that the employee (otherwise unnamed) bundled company material together and placed it in his truck with no company property pass. The script was read to approximately 300 Westinghouse employees. According to one worker, one of appellee’s supervisors (after having read the script to a group of employees) told the assembled men that appellant had been discharged for taking company property.

During the trial of the case, witness David Spears, testifying for appellant, answered questions about a discussion that he had with another Westinghouse employee, Mike Miller, concerning appellant’s termination of employment with appellee. Mr. Spears related that Miller told him that he (Miller) had heard from some undisclosed source that appellant had been terminated by appellee for stealing. A motion to strike that testimony was granted by the trial court. The trial court also sustained an objection to testimony of Mr. Spears concerning what appellant told him (Spears) about the events which led to appellant’s termination. In directing a verdict for appellee, the trial court held that the work place meeting script did not constitute libel per se, that there had been no evidence presented as to slander, and that the communications of appellee were quali-fiedly privileged.

An examination of the allegedly defamatory publication is necessary in order to determine whether it is libelous per se. The meeting place script states that an employee was terminated for violation of a class “A” offense in that certain materials were bundled and placed in the employee’s truck without the required company pass. Under the circumstances, the only potentially applicable class “A” offenses are stealing; and hiding, concealing or misappropriation of Westinghouse property or the property of other employees. Under Florida law, a publication is libelous per se when it imputes to another a criminal offense amounting to a felony, or conduct, characteristics, or conditions incompatible with the proper exercise of one’s lawful business, trade, profession, or office. (Teare v. Local Union No. 295, Sup.Ct. Fla. 1957, 98 So.2d 79) At the very least, the publication in question accuses appellant of conduct incompatible with the proper exercise of his employment or profession which is clearly actionable per se. 20 Fla.Jur. 560, “Libel and Slander” § 33; Prosser on Torts, 3rd Ed. (1964) at 776; Briggs v. Brown, 1908, 55 Fla. 417, 46 So. 325.

Our finding that the publication constitues libel per se does not automatically require reversal. If the record establishes an absolute defense, then the trial court was correct in entering a directed verdict in favor of appellee. The testimony produces two potential defenses, The first such defense is truth. That defense is of constitutional origin in Florida. Article 1, Section IV of the Florida Constitution (1968 Rev.) provides, “In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.” The constitution makes it clear that truth, in and of itself, is not a complete defense in an action for defamation, but truth coupled with good motives is. The issues of truth and good motives are normally to be resolved by the jury. (Curtis Pub. Co. v. Fraser, 5th Cir. 1954, 209 F.2d 1; Diplomat Elec., Inc. v. Westinghouse Elec. Supply Co., 5th Cir. 1970, 430 F.2d 38)

In the instant case, there was sufficient evidence in the trial testimony to submit the issue of the “truth” defense to the jury. The meeting place script alleged that a class “A” offense had been committed, while appellant testified that he did not intend to take the scrap metal and that he was merely using it during his exercise period which took place on plant property. The conflict in the evidence creates an issue upon which reasonable minds could differ and which, consequently, should have been submitted to the jury.

The second potential defense available to appellee is the qualified privilege involving a response to a legal, moral or social obligation. (See Mays v. Stratton, Fla.App. 1st 1966, 183 So.2d 43) This precise issue was covered in a remarkably similar case in another jurisdiction, Sias v. General Motors Corp., 1964, 372 Mich. 542, 127 N. W.2d 357. The plaintiff in the Sias case, a worker for General Motors, was accused of misappropriating company property and was allowed to resign. When rumors began circulating among his former fellow workers, management talked to several of the men, and told them that plaintiff was released for misappropriation of company property. The Michigan court, recognizing that good motive is a prerequisite to qualified privilege, addressed itself to that issue in the following manner:

“On the question of the publication of the statement we hold that in calling in fellow employees of plaintiff and ‘explaining’ the circumstances of his separation, defendant-corporation was serving its own particular interest. That interest, as described by defendant’s representatives, was to restore moral in the plant protection force and to quiet rumors that were circulating among its members, adversely affecting the company. These men were not supervisors, personnel department representatives, or company officials. They were simply fellow employees in the identical work. * * * The statement falsely made and published was actionable per se and was not protected by qualified privilege.”

Similarly, in the instant case, the testimony of one of appellee’s representatives indicates that the publication in question tended to serve appellee’s own particular interest. We conclude that the publication was not protected by any qualified privilege.

Appellant urges us to consider the issue of malice, because implicit in the trial court’s ruling that appellee was protected by a qualified privilege is the finding that there was no evidence of malice. In view of our holding that the publication in question was not protected by qualified privilege, discussion of the issue of malice is unnecessary.

We are also convinced that there is sufficient evidence of slander in the record to require the submission of the issue to the jury. The testimony reveals that one of appellee’s supervisors, after reading the meeting place script to the shift of men under his control, told them that appellant had been discharged for taking company property. Evidence which indicates that agents of appellee “explained” the written publication is sufficient to establish a pri-ma facie case of slander.

Finally, appellant complains that the trial court erred in excluding the testimony of the witness Spears. In this matter, the trial court was clearly correct. The proposed testimony was hearsay and inherently unreliable. In fact, that part of Spears’ testimony wherein he sought to relate what he had heard concerning the reason for appellant’s dismissal was shown to be hearsay on hearsay. When Spears attempted to testify as to what appellant had told him concerning appellant’s termination, the trial court again correctly ruled that the testimony was inadmissible as both hearsay and self-serving declaration.

The order of the trial court directing a verdict in favor of appellee is reversed, and the cause is remanded for trial.

Reversed and remanded.

McCORD and MILLS, JJ., concur.

      . The employee handbook enumerates 13 class “A” offenses, among which are stealing and hiding, concealing or misappropriation of Westinghouse property or the property of other employees. Commission of a class “A” offense is “inexcusable and may result in immediate discharge.” A second employee handbook contained in the record, but which was not admitted into evidence because it had not yet been printed at the time the incident in question occurred, lists 11 class “A” offenses, one of which is “taking or receiving, without authorization, goods, materials or equipment belonging to the company, fellow employees or customers.” (We mention the latter handbook only because it is in the record and there has been no motion to strike it. Since it was never admitted into evidence it could not have been properly considered by the trial court and may not be considered by this court.)


source: Caselaw Access Project

author: PATTERSON, Presiding Justice:

license: Public Domain

text:
    Josephine COOLEY et al., Complainants-Appellants, v. B. K. COOLEY et al., Defendants-Appellees.
    No. 48537.
    Supreme Court of Mississippi.
    March 9, 1976.
    Ramsey, Bodron, Thames & Robinson, Vicksburg, for complainants-appellants.
    John M. Sims, Heidelberg, Robert H. McFarland, Bay Springs, L. A. Pacific, Laurel, Bacon & Smith, Jackson, for defendants-appellees.
    Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   PATTERSON, Presiding Justice:

This is an appeal from the Chancery Court of the First Judicial District of Jasper County which sustained special pleas and defenses of the statute of limitations interposed by the defendants below and dismissed the case against them. The court held the appellants had not complied with Mississippi Code Annotated sections 15-1-7 and 15-1-9 (1972) which require suit for the recovery of land to be commenced within ten years after the cause of action accrues.

The issue before the Court is whether a landowner’s suit to cancel mineral deeds on the ground of fraud is barred by limitations after notice of constructive possession is proclaimed by filing the mineral deeds for record upon the land rolls of the county.

It is the Court’s opinion that all issues presented are controlled by Neal v. Teat, 240 Miss. 35, 126 So.2d 124 (1961), and Dent v. Calhoun, Miss., 326 So.2d 320, No. 48,482, decided by this Court 1976, and not yet reported. We adhere to the rule of Neal, siipra, and its subsequent repro-nouncements and distinguish it from McMahon v. McMahon, 243 Miss. 89, 137 So. 2d 520 (1962), upon the basis of judicial discretion. McMahon states in part:

“ . . . If the demurrer raise merely a doubtful question or if the case be such that the cause of justice will probably be promoted by a determination of the ultimate right only on answer and proof, the court ought to exercise a fair judicial discretion to that end, although it may be that in technical point the grounds of the demurrer are sustainable in strict law.” Griffith’s Mississippi Chancery Practice, Second Edition, 1950, p. 297, Demurrers, par. 310. (243 Miss, at 97-98, 137 So.2d at 524).

We are of the opinion the present action was barred by the limitations expressed in Mississippi Code Annotated section 15-1-9 (1972) and the chancellor properly sustained the special pleas and the demurrers to the bill of complaint.

Affirmed.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Ronald CREDEUR.
    No. 56996.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Rehearings Denied March 26, 1976.

      L. H. Olivier, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Ronald E. Dauterive, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Ronald Credeur was charged by bill of information with a violation of La.R.S. 14:89.1, aggravated crime against nature, committed on December 8, 1973, in that he did have unnatural copulation with his eleven-year-old daughter. Trial by jury on March 25, 1975 resulted in a verdict of guilty of attempted aggravated crime against nature by a vote of ten to two. A motion for a new trial filed on April 17, 1975 urged that the conviction was obtained upon perjured testimony and that there was improper behavior on the part of some of the jurors. A hearing was held on this motion on May 27, 1975. Thereafter, the motion for a new trial was denied. Defendant was sentenced to serve seven and one half years at hard labor with the department of corrections. The court suspended the execution of the sentence conditioned on defendant serving one year in the parish jail and being placed on supervised probation for a period of five years. The special conditions of probation are that defendant is not to communicate with any of his children except through the Louisiana department of welfare; he is not to have any of his children live with him until they reach the age of eighteen; defendant is to pay for any psychiatric care his children may need and to remain gainfully employed. On appeal, defendant relies upon five assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erroneously failed to sustain his motion for a directed verdict of acquittal made at the close of all the evidence. The defense had rested its case without offering any evidence. La.Code Crim.P. art. 778 (1966).

This court can find error in the trial judge’s denial of a motion for a directed verdict and reverse the conviction only when there is no evidence of the crime or an essential element thereof. State v. Douglas, 278 So.2d 485 (La.1973).

The evidence produced by the state included the testimony of the four children of defendant: two sons, A, age thirteen, and B, age eleven; and two daughters, C (victim), age eleven, and D, age eight. The designated ages are those as of the time of the alleged offense (December 8, 1973). Without detailing the substance of the testimony, it suffices to say that the evidence, particularly the testimony of A, amply supports each element of the crime charged. Hence, the trial judge correctly denied defendant’s motion for a directed verdict of acquittal.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial court erred in failing to grant his motion for a new trial where there was no evidence for the jury to have found him guilty of an attempt to commit the crime charged (aggravated crime against nature). Defendant argues that the evidence reveals that he either did or did not commit the crime charged, but in no event is there any evidence that he attempted to commit the crime charged.

Crime against nature is defined in pertinent part:

Crime against nature is the unnatural carnal copulation by a human being with another of the same or opposite sex or with an animal. Emission is not necessary, and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.

La.R.S. 14:89. Aggravated crime against nature, the crime for which defendant is charged, provides in pertinent part:

Aggravated crime against nature is crime against nature committed under any one or more of the following circumstances:
(5) Where the victim is under the age of seventeen years and the offender is at least three years older than the victim.

La.R.S. 14:89.1. Defendant was found guilty of attempted aggravated crime against nature. The definition of an “attempt” as set forth in La.R.S. 14:27 is:

. [A] separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

The responsive verdicts to specific offenses are set forth in article 814 of the Code of Criminal Procedure. Though all offenses are not enumerated in this article, the Official Revision Comment (b) following the article states:

For all other offenses not enumerated and listed in the above article attempt would be responsive.

The crime for which the defendant is charged, namely aggravated crime against nature, does not appear in article 814; therefore, it follows that “attempt” is a responsive verdict. See State v. Ackal, 290 So.2d 882 (La.1974). Since “attempt” is a responsive verdict to the crime charged, defendant’s argument is of no moment. Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, defendant contends that the trial judge erred in failing to grant his motion for a new trial where the only witness, A, who testified at trial as to the commission of the crime, testified at the hearing on the motion for a new trial that his prior trial testimony was false and perjured. Defendant submits that this constituted newly discovered evidence and that the ends of justice required the trial judge to grant a new trial, citing article 851 of the Code of Criminal Procedure.

Defendant was tried and convicted on March 25, 1975. At trial, A, age thirteen, had been a key witness for the state and had testified that he had witnessed an act of unnatural copulation by his father (defendant) with his sister (C). On April 13, 1975, some nineteen days after defendant’s trial and conviction, defense counsel received a telephone call from A in which he stated that his trial testimony concerning the unnatural sex act between his father and C was false. The telephone conversation was recorded. A hearing was held on the motion for a new trial. A testified at this hearing, and a copy of the taped telephone conversation was received in evidence. The request for a new trial was denied by the trial judge.

Article 851 of the Code of Criminal Procedure provides in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty:
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

Neither the appellate nor supervisory jurisdiction of this court may be invoked to review the granting or the refusal to grant a new trial, except for error of law. La.Code Crim.P. art. 858 (1966). It is well established in our jurisprudence that the granting or refusing to grant a motion for a new trial rests within the sound discretion of the trial judge and will not be disturbed on review in absence of clear abuse. State v. Randolph, 275 So.2d 174 (La. 1973); State v. Jackson, 253 La. 205, 217 So.2d 372 (1968).

At trial, all four of defendant’s children testified that on December 8, 1973, they were told by their mother and father to disrobe and were taken into a bedroom where their parents, also in the nude, ordered the boys to perform indecent acts on the mother and the girls on the father. However, it was only A who testified that he witnessed the act of unnatural copulation between his father (defendant) and his sister (C). A was extensively cross-examined by defense counsel but was steadfast in his testimony in this regard. Other details in A’s testimony were corroborated by the testimony of the other witnesses.

A’s testimony at the hearing on the motion for new trial was revealing. It consisted almost entirely of “yes” or “no” answers to questions posed by defense counsel. He admitted calling defense counsel on April 13, 1975 and stating that his trial testimony regarding the act of unnatural copulation between his father and C was false and affirmed that this was his present testimony. Thereafter, defense counsel stated:

Q. Are you trying to do right ? Is that the reason for telling the truth now?
A. (No response. Witness begins to cry.)
Thereafter, a short recess was taken. When A returned to the stand, he responded affirmatively to defense counsel’s questions that his telephone conversation to him and his present testimony were voluntary and not given in response to any promises. In order to properly evaluate A’s testimony at the hearing for a new trial, we consider it necessary to quote at length from his testimony on cross-examination.
BY MR. STANSBURY:
Q. [A], I’m going to ask you some questions, okay? Which one is the truth, the one you said in court or what you told Mr. Olivier on the telephone?
A. (No response).
Q. The truth, son.
A. (No response).
THE COURT:
[A]. I know it’s difficult, but we’re here and I’d like for you to answer Mr. Stansbury’s question.
BY MR. STANSBURY:
Q. Which one is true, [A] ?
A. I can’t answer that.
THE COURT:
You can’t answer that, is that what you’re saying?
THE WITNESS:
Yes.
BY MR. STANSBURY:
Q. Are you afraid? Are you crying because you don’t want your father to be hurt?
A. Yes.
Q. Everybody knows that, but we must have the truth.
A. (No response).
Q. Now, you’re becoming a man now, son, so please, will you tell us which is true?
A. Yes, but either way I go somebody’s got to get hurt.
THE COURT:
There’s no question about that.
BY MR. STANSBURY:
Q. The hurt is already done. Now it’s time for the truth. Did you feel that it would help get your family back together if you called Mr. Olivier and told him that?
A. It wouldn’t do any good, because I’m not going back.
Q. But is that why you called him? You think you’re not going back or you don’t want to go back ?
A. I’m not going.
Q. You’re not going back, but is that why you called ?
A. (No response).
Q. Son, all I ask you for is the truth. You can’t hurt anybody by telling the truth. The trial is over. You told Mr. Olivier something different, and all we want you to tell us is which story is true, under your God’s oath.
A. Either way I’m going to go, I’ve got something to face when I get back.

In our view, A’s testimony at the hearing on the motion for a new trial, taken as a whole, does not repudiate his previous trial testimony. We consider it significant that when pressed by the trial judge and district attorney for an answer to the question : “Which one is the truth, the one you said in court or what you told Mr. Olivier on the telephone?” A finally responded: “I can’t answer that.” Under all of the circumstances, we do not believe that the trial judge abused his discretion in refusing a new trial.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant urges in this assignment of error that the trial court erred in failing to grant his motion for a new trial based on the allegation that one or more of the jurors acted improperly by changing their negative vote to an affirmative one for conviction for the sole reason that they desired to bring the jury deliberations to an end. The two jurors, Dorenda Anne Falcon and Julia Rutledge, who allegedly would verify this fact, were the only two jurors who voted against the verdict.

At the hearing on the motion for a new trial, defense counsel first called Mrs. Dorenda Anne Falcon. The juror was questioned as to the “events which occurred during deliberations.” The state objecting, citing La.R.S. 15:470. The trial judge sustained the objection. It was then stipulated that Mrs. Julia Rutledge would have testified similarly as the previous witness and that no claim of bribery or corruption was being made.

The trial judge correctly denied defendant the right to question these jurors relative to the deliberations of the jury in reaching its verdict. It is well settled that a juror may not impeach the verdict of a jury of which he was a member. La.R.S. 15:470; State v. Hatch, 305 So.2d 497 (La.1974). Hence, the motion for a new trial was properly denied.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, defendant contends that the special conditions of probation imposed by the trial court are violative of due process of law and operate as a usurpation of the jurisdiction of the juvenile court.

The trial judge sentenced defendant to serve seven and one half years at hard labor with the department of corrections. The court suspended the execution of the sentence conditioned on defendant serving one year in the parish jail and being placed on supervised probation for a period of five years. The special conditions of probation are that defendant is not to communicate with any of his children except through the Louisiana department of welfare ; he is not to have any of his children live with him until they reach the age of eighteen; defendant is to pay for any psychiatric care his children may need and to remain gainfully employed.

Article 895 of the Code of Criminal Procedure provides that “[wjhen the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation . . . .” (Emphasis added.) Since the nature of the crime for which defendant was convicted involved his association with his children, the special conditions of probation imposed by the trial court are “reasonably related to his rehabilitation.” As stated by the trial judge in his per curiam: “The Court finds that it acted within the framework of this article [article 895] in imposing the conditions of probation.” Defendant agreed in writing to the conditions of his probation as required by article 895. He was not obliged to accept probation. Under the circumstances, we find no due process violation or usurpation of the jurisdiction of the juvenile court. Hence, there is no merit in this assignment of error.

DECREE

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

      . Bill of Exceptions No. 1 was neither briefed nor argued in this court and is therefore considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

      . Act 627 of 1976 amended article 778 of the Louisiana Code of Criminal Procedure so that the trial judge may no longer direct a verdict of not guilty in a jury trial. This act was approved July 17, 1975. The amendment does not apply to this trial which occurred prior to its enactment.

      . We will refer to the children by letter instead of by name.


author: DENNIS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Bruce W. MORRIS.
    No. 57012.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Darrell D. White, White & May, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant Morris was convicted of possession of marijuana as a second offender, La.R.S. 40:966(D)(2), and sentenced to pay a fine of $250.00 plus costs or in default thereof to be confined in the parish jail for ninety days, and to serve six months in the parish jail. The six month jail sentence was suspended and defendant was placed on probation for one year. Defendant timely appealed from the judgment of conviction. However, we are now advised by counsel that defendant paid the $250.00 fine before the order of appeal was granted, and that the defendant died on October 5, 1975.

The State argues that either the payment of the fine or defendant’s death renders the case moot and necessitates a dismissal of the appeal. The defense attorney, on the other hand, contends the case remains in a justiciable posture, and urges a reversal of the conviction.

Payment of the Fine

Louisiana has adopted the view that the satisfaction of the sentence renders the case moot so as to preclude review of or attack on the conviction or sentence. City of Lafayette v. Trahan, 157 La. 305, 102 So. 409 (1924); State ex rel. Perilloux v. Wilder, 50 La.Ann. 388, 23 So. 203 (1898) ; State ex rel. Lamarque v. Burthe, 39 La.Ann. 328, 1 So. 652 (1887). This is the majority rule followed by many jurisdictions, e. g., State v. Henkel, 23 Conn. Sup. 135, 1 Conn.Cir. 156, 177 A.2d 684 (1961); People v. Pyrros, 323 Mich. 329, 35 N.W.2d 281 (1948); Stucki v. Oklahoma City, 31 Okl.Cr. 155, 236 P. 900 (1925); Thomas v. Montcalm Circuit Judge, 228 Mich. 44, 199 N.W. 610 (1924); Kitchens v. State, 4 Ga.App. 440, 61 S.E. 736 (1908). However, a growing number of courts permit review after satisfaction of the sentence if the accused will, as a result of the conviction, suffer collateral disabilities apart from the sentence. St. Pierre v. United States, 319 U.S. 41, 63 S. Ct. 910, 87 L.Ed. 1199 (1943); United States v. Galante, 298 F.2d 72, 100 A.L.R. 2d 431 (2d Cir. 1962). Some jurisdictions have adopted the liberal view that an accused’s interest in clearing his name is enough to warrant review of or attack on the conviction or sentence even though the sentence has been satisfied. State v. Superior Court of Maricopa County, 93 Ariz. 351, 380 P.2d 1009 (1963); Jackson v. People, 151 Colo. 171, 376 P.2d 991 (1962); People v. Shambley, 4 Ill.2d 38, 122 N.E.2d 172 (1954); Annotation, 9 A.L.R.3rd 462 (1966).

The instant case poses squarely for the first time in Louisiana the question of whether payment of a fine, which does not satisfy the judgment, will render the case moot. In State v. Brewer, 135 La. 208, 65 So. 111 (1914) we dismissed the appeal of a defendant who had been convicted and sentenced to pay $20.00 semi-monthly for the support of his children on the ground that he had acquiesced in the order of the court by making the first $20.00 payment. However, the opinion is silent as to whether an additional sentence of imprisonment had been imposed, as in the instant case, or whether the defendant had completely complied with the court’s judgment at the time his appeal was dismissed. Further ambiguity was created by language in Brewer, and in the later case of State v. Verdin, 192 La. 275, 187 So. 666 (1939), indicating that even full satisfaction of a sentence by payment of a fine would not amount to acquiescence in the judgment or abandonment of an appeal if a defendant could prove by sufficient evidence that he had a contrary intention.

We think the clearer and more realistic rule is that the payment of a fine which does not satisfy the court’s judgment will not render the case moot. Most criminal defendants who pay their fines probably do so to avoid incarceration. To find that an accused has acquiesced in the court’s judgment from this fact alone is clearly a legal fiction. Even where a sentence of imprisonment has been suspended, the accused is under a burdensome restraint and a threat of incarceration. If he challenges the judicial determination of his guilt on grounds otherwise cognizable on appeal, review should be permitted. American Bar Association Standards for Criminal Justice, Criminal Appeals Standard § 1.3. Although there are few cases in other jurisdictions considering this precise question, our conclusion is in accord with the decisions in Perry v. State, 62 Ga.App. 115, 8 S.E.2d 425 (1940) and State v. Swikert, 65 Or. 286, 132 P. 709 (1913), and we have found no convincing authority to the contrary. Cf. State v. Massa, 90 Kan. 129, 132 P. 1182 (1913).

Furthermore, although we do not reach a constitutional issue here, we note that the rule we adopt is in keeping with the requirement that there must be an intelligent waiver of the constitutional right to judicial review of a criminal conviction. La.Const. Art. 1, § 19 (1974). Accordingly, we hold that the payment of a fine by the defendant, which did not satisfy the judgment against him, did not constitute a waiver of his right to appeal or render the case moot.

Defendant’s Death

If this were a civil proceeding we would be guided by the statutes and court rules providing for substitution of parties. La. C.C.P. arts. 428, 801-807; Rules of Supreme Court of Louisiana, Rule XIII. At least one state by court rule has allowed substitution of a defendant’s legal representative in a criminal case upon the defendant’s death. City of Newark v. Pulverman, 12 N.J. 105, 95 A.2d 889 (1953). But Louisiana has no provision governing the disposition of a criminal case in this event, and the question appears to be res nova.

Most courts which have considered the matter have recognized the rule that death pending appeal of a defendant convicted of a criminal offense abates not only the appeal, but likewise all proceedings had in the prosecution from its inception. For collection of authorities too numerous for citation see Annotations, 83 A.L.R.2d 864 (1962), 9 A.L.R.3rd 462, 496 (1966). A number of reasons are advanced for the rule. The purposes for enforcement of criminal laws are the punishment and reform of the guilty and the protection of the public; the removal of the defendant by death prevents the execution of any sentence in furtherance of these objectives. Further consideration of such a case by the courts is pointless because an affirmance of the conviction would not enable the State to execute the judgment against the deceased. A decision of the appeal would not necessarily produce a vindication of the defendant; appellate disposition, even if reversible error is found, does not guarantee a judgment of acquittal. Often, the appeal results only in a new trial, for which the deceased would be unavailable. State v. Carter, 299 A.2d 891 (Me.1973); Hartwell v. State, 423 P. 2d 282 (Alaska 1967); Raymond v. State, 246 Ind. 422, 206 N.E.2d 139 (1965); Bagley v. Florida, 122 So.2d 789 (Fla.App. 1960); State v. Kriechbaum, 219 Iowa 457, 258 N.W. 110 (1934). Nevertheless, the surviving family has an interest in preserving, unstained, the memory of the deceased defendant or his reputation. This interest is of sufficient legal significance to require that a judgment of conviction not be permitted to become a final and definitive judgment of record when its validity or correctness has not been finally determined because the defendant’s death has caused a pending appeal to be dismissed. State v. Carter, supra; State v. Kriechbaum, supra; Bagley v. Florida, supra.

There is authority to the contrary. See Annotations, 9 A.L.R.3rd 462 (1966); 83 A.L.R.2d 864 (1962). The courts holding a different view, however, either fail to give any reasons for the position taken, e. g., Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531, 18 Cr.L.R. 4138 (1976) (which appears inconsistent with the decision by the Supreme Court in Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971)), or, in our opinion, do not advance reasons as sound as those given for the majority rule. Accordingly, we adopt the majority rule and hold that because of defendant’s death while the appeal was pending, the judgment of conviction must be vacated and all proceedings in the prosecution abated from its inception.

Hence, the appeal in this case is dismissed, the judgment of conviction is vacated, and the case is remanded to the district court with instructions to dismiss the bill of information.

SUMMERS, J., concurs with reasons.

SUMMERS, Justice

(concurring).

While acknowledging that Louisiana has adopted the majority view that the satisfaction of the sentence renders the case moot so as to preclude appeal of or attack on the conviction or sentence, the Court seems to cast doubt upon the validity of that rule by stating the contrary view without deciding which is to prevail hereafter.

The Court then repudiates the rule that has been recognized in this State that acquiescence in a criminal judgment amounts to an abandonment of an appeal. State v. Verdin, 192 La. 275, 187 So. 666 (1939); State v. Brewer, 135 La. 208, 65 So. 111 (1914); State v. Richard et al., 127 La. 413, 53 So. 669 (1910); 2 Marr’s Criminal Jurisprudence of Louisiana § 755 (2d ed. 1923).

In State v. Verdin, supra, the rule was stated thus:

“It is the well settled jurisprudence of this state that an order or judgment of an inferior court will not be reviewed either by appeal or certiorari when it is shown that the order or judgment has been acquiesced in by the party complaining.”

In State v. Richard where a defendant had begun serving his sentence, not fully satisfied, the Court held that he had abandoned his appeal and refused to take further action on his appeal, holding that the case was not before the Court.

In State v. Brewer the defendant was ordered to pay semimonthly payments for support of his children. After making one payment his appeal was dismissed because he was considered to have acquiesced in the judgment. He had not fully satisfied the judgment.

The reasons for the rule of these cases is expressed in City of Lafayette v. Trahan, 157 La. 305, 102 So. 409 (1924), where a motion for a new trial was filed after the fine imposed had been paid:

“Now this much at least can be said of a motion for a new trial made after judgment but before execution, or even after appeal taken, to wit, that the sentence of the court has not yet become a ‘fait accompli’; and such a motion if allowed might yet result in some relief for the accused. But a motion for a new trial made after the judgment of the court has been fidly executed, can avail the accused nothing whatsoever. A new trial cannot restore life to him who has been hanged; it cannot set free one who, having served his term of imprisonment, is already restored to liberty; it cannot direct the return of a fine already paid into the fisc; hence, such a motion, or an appeal taken from a refusal to allow the same, presents only a moot question and must be dealt with accordingly.”

These reasons also apply to appeals after execution of the judgment.

Today the Court announces the rule to be that the payment of a fine which does not entirely satisfy the court’s judgment will not render the case moot. This choice is based on decisions in a 1913 Oregon case and a 1940 Georgia appeals case.

I would not overrule the long-standing rule in Louisiana that acquiescence in a criminal judgment renders the case moot and amounts to an abandonment of the right to an appeal. The reasons assigned for doing so are not persuasive. The result of the bifurcated rule the Court adopts is to permit an appeal of a part of a case, without deciding what is to become of the satisfied portion of the judgment.

Notwithstanding the views expressed on the effect of acquiescence in the judgment in a criminal case, the instant decision is not based on that proposition, and the views expressed on that subject are therefore dicta and unnecessary to the decision.

The case turns on the holding that the defendant’s death while the appeal was pending requires that the judgment appealed from be vacated and all proceedings in the prosecution must be abated. I subscribe to this latter view and therefore concur in the result reached.


author: DIXON, Justice.

text:
    J. Clyde DEAN v. HERCULES, INCORPORATED.
    No. 56644.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Paul G. Borron, II, Borron & Delahaye, Plaquemine, for defendant-applicant.
    G. William Jarman, Thibaut & Thibaut, John S. Thibaut, Jr., Baton Rouge, for plaintiff-respondent.
   DIXON, Justice.

Plaintiff, the owner of a tract of land in Iberville Parish, filed this suit against the owner of an adjoining tract, for damages allegedly suffered as a result of chemical emissions from the defendant’s plant which killed or otherwise adversely affected certain trees on his property. In his petition, plaintiff alleges that during the period 1970-1971, the defendant’s plant emitted certain chemical substances which destroyed or damaged his trees and orchards. The suit was filed on April 1, 1974. By amended petition, filed on August 21, 1974, the plaintiff asserted a cause of action under article 667 of the Civil Code.

The defendant filed a peremptory exception of prescription of one year, which the trial court upheld. On appeal, the First Circuit reversed, holding that an action for damages under C.C. 667 prescribes in ten years. 314 So.2d 430. We granted writs to resolve the conflict between this case and Gulf Insurance Co. v. Employers Liability Assurance Corp., 170 So.2d 125 (La. App. 4th Cir. 1964), which held that the applicable prescriptive period for a suit for damages under article 667 is one year.

The nature of the obligation breached determines the applicable prescriptive period. C.C. 3531. The defendant contends that the obligation breached, if any, arises ex delicto, and therefore prescribes in one year. C.C. 3536. Plaintiff, on the other hand, contends that the obligation breached arises solely by operation of the law, and therefore a ten year prescriptive period is applicable. C.C. 3544.

The law recognizes two kinds of civil obligations, in relation to their origin. C. C. 1760. The first are those created by operation of law; the second are those created by the consent of the parties, called conventional obligations.

C.C. 2292 further subdivides obligations contracted without agreement of the parties into two classes:

“Certain obligations are contracted without any agreement, either on the part of the person bound or of him in whose favor the obligation takes place.
“Some are imposed by the sole authority of the laws, others from an act done by the party obliged, or in his favor.
“The first are such engagements as result from tutorship, curatorship, neighborhood, common property, the acquisition of an inheritance, and other cases of a like nature.
“The obligations, which arise from a fact, personal to him who is bound, or relative to him, result either from quasi contracts, or from offenses and quasi-offenses.”

The first class represents those obligations that result from a status or a relationship ; the second represents those that result from some act personal to him who is bound.

C.C. 667 provides:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

This article has been part of our law since the Code of 1808. However, it does not appear in the Code Napoleon. Rather, it appears to have been taken from the text of Domat. Batiza, Sources of 1808 Civil Code, 46 Tul.L.Rev. 4, 69 (1971); Domat, Oeuvres completes de J. Domat, Book 1, Title 12, § 2, No. 8 (ed. Remy 1835).

C.C. 667 is the embodiment of the maxim “sic utere tuo, ut alienum non laedas along with articles 668 and 669, it establishes the reciprocal rights and obligations of neighbors. Chaney v. Travelers Insurance Co., 259 La. 1, 249 So.2d 181 (1971). See Yiannopoulos, Civil Responsibility in the Framework of Vicinage: Articles 667-69 and 2315 of the Civil Code, 48 Tul. L.Rev. 195 (1974).

C.C. 488 provides that the right of ownership is exclusive. However, it is not absolute, since it is subject to laws or ordinances. C.C. 491. In effect, C.C. 488 embodies the positive side of the right of ownership (the right by which a thing belongs to some one in particular, to the exclusion of all others), while C.C. 491 embodies the negative side (provided it is not used in any way prohibited by laws or ordinances).

Thus, it is dear that the right of ownership is subject to limitations imposed by law. 2 Aubry et Rau, Droit Civil Fran-cais, § 194 (7th ed. La.State Law Inst. tr. 1966). Articles 667 and 668 reflect such limitations. C.C. 667 imposes a limitation on the positive side of ownership, for it prevents one landowner from making any work on his property which deprives his neighbor of the liberty of enjoying his own. C.C. 668, on the other hand, imposes a limitation on the negative side, for it forces the neighbor to accept those inconveniences that do not amount to damage.

In prerevolutionary France, such limitations on the right of ownership were regarded as personal obligations founded on the quasi-contract of vicinage. R. Pothier, Traite du contrat de societe No. 230, 328 4 Oeuvres de Pothier (ed. Bugnet 1861). However, the codification of the sic utere doctrine deals with obligations much broader than the obligations arising from a servitude. Yiannopoulos, Civil Responsibility in the Framework of Vicinage: Articles 667-69 and 2315 of the Civil Code, 48 Tul.L.Rev. 195, 203 (1974). “It is just an historical accident that obligations arising from vicinage have been classified in the Louisiana and French Civil Codes as servitudes arising by operation of law.”

Nevertheless, an obligation in Louisiana is either: (1) contractual; (2) quasi-contractual; (3) delictual; (4) quasi-de-lictual; or (5) legal. C.C. 1760, 2292. The obligations imposed by articles 667 and 668 are legal, for C.C. 666 declares:

“The law imposes upon the proprietors various obligations towards one another, independent of all agreements; and those are the obligations which are prescribed in the following articles.”

Therefore, the breach of an obligation imposed by those articles necessarily results in legal responsibility. However, it can be said that the breach of any obligation (be it consensual or nonconsensual) results in legal responsibility if the law provides a sanction for that breach, for, without any sanction, the obligation is merely an imperfect or natural obligation, neither of which can be enforced by any judicial action. C.C. 1757.

After the two basic kinds of civil obligations (consensual and nonconsensual) are established by Title III (article 1760), the Civil Code then treats (1) Of Conventional Obligations (Title IV, articles 1761-2289); (2) Of Quasi Contracts, and Of Offenses and Quasi Offenses (Title V, articles 2292-2324). Therefore, in order to determine the incidents of the breach of a legal obligation, and the applicable prescriptive period in this case, we look to the closest analogous situation provided for in the Code.

An action for damages for a violation of article 667 is most closely associated with an action for damages based on C.C. 2315 et seq. Indeed, it can be said that a violation of article 667 constitutes fault within the meaning of article 2315. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971). In effect, C. C. 667 imposes liability without negligence. Chaney v. Travelers Insurance Co., supra. Therefore, the prescriptive period in an action for damages for a violation of article 667 should be one year.

We are reinforced in this conclusion by the interoperation of C.C. 670 and 2322. Article 670 is a broad statement of the building owner’s duty toward his neighbors and passersby. C.C. 2322 provides that the owner of the building is answerable for the damages occasioned by its ruin. Articles 670 and 2322 are laws upon the same subject matter, and hence are construed with reference to each other. C. C. 17; Anslem v. Travelers Insurance Co., 192 So.2d 599 (La.App. 3rd Cir. 1966). It has therefore been held that the prescriptive period for an action for damages brought under C.C. 670 and 2322 is one year. Grigsby v. Morgan & Lindsey, 148 So. 506 (La.App. 2d Cir. 1933). Since C.C. 2315 is broad enough to include the obligations imposed by C.C. 667, and because the acts which would violate the obligations imposed by 667 could so easily be said to be an “act whatever of man that causes damage to another” (see Butler v. Cargill, Inc., 304 So.2d 91 (La.App. 1st Cir. 1974), it is entirely logical that the same prescriptive period should apply to both. C.C. 3536, 3537.

Nor can we say that a ten year prescriptive period is applicable because damage to immovable property is involved. See C.C. 3537. C.C. 667 is not limited in its operation to damage to immovable property. Rather, the article specifically provides that the landowner cannot make any work on his estate “which may be the cause of any damage to him” (his neighbor). Article 667 seems to encompass liability for personal injuries. See Rayborn v. Smiley, 253 So.2d 664 (La.App. 1 Cir. 1971), cert. den. 260 La. 105, 255 So.2d 92 (1971). Furthermore, damage to movable property is compensable under C.C. 667. See Watkins v. Gulf Refining Co., 206 La. 942, 20 So.2d 273 (1944).

Nor will our holding result in the possibility of acquiring any kind of servitude after one year passes without litigation over the breach of the obligation of neighborhood. Servitudes are acquired by ten years prescription. C.C. 765. Moreover, only continuous and apparent servi-tudes can be acquired by prescription. C. C. 765, 766. Certainly, in cases such as this, involving industrial pollutants, an act of man is required, and, therefore, no servitude can be acquired by the offending landowner by prescription. C.C. 727.

Neither do we express any opinion on the doctrine in the cases involving “continuing damages.” (In Rhodes v. International Paper Co., 174 La. 49, 139 So. 755 (1932), it was held that, in the case of continuing damage, prescription was not suspended, but ran as the damage occurred; prescription, therefore, ran on each item of damage from the date it was inflicted. Spyker v. International Paper Co., 173 La. 580, 138 So. 109 (1931) ).

However, while the applicable prescriptive period for an action for damages for a violation of article 667 is one year, the one year period cannot necessarily be reckoned from the date of the occurrence. In modern technology damages from industrial emissions and the like may not become apparent until some years after the occurrence. Additionally, it might be impossible for the injured party to know what or who caused the damage, until an investigation can be made after the damage in fact becomes apparent. In such cases, the prescriptive period would run only from the date the damage becomes apparent. “And where land, timber or property has been injured, cut, damaged or destroyed from the date knowledge of such damage is received by the owner thereof.” C.C. 3537.

Support for this conclusion is found not only in prior decisions of this court, but also in decisions of federal courts and the lower state courts. In Young v. International Paper Co., 179 La. 803, 155 So. 231 (1934), which involved damage to plaintiff’s timber due to acid water flowing from defendant’s mill, this court held that the prescriptive period of one year began to run from the date the owner of the timber acquired knowledge of the damage. In Liles v. Barnhart, 152 La. 419, 93 So. 490 (1922), an action for the wrongful extraction of oil and gas, we held that the prescriptive period began to run from the time knowledge was received of the wrongful extraction of the oil and gas.

In R. J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776 (C.C.A. 5 1963), which involved damage to plaintiff’s lungs from defendant’s cigarettes, the court held that, under Louisiana law, prescription does not begin to run until the plaintiff knows or should know he has sustained damage. In Kuchenig v. California Company, 233 F. Supp. 389 (E.D.La.1964), an action for damages for trespass to mineral property, the court noted that prescription begins to run only from the date knowledge of the damage is received by plaintiff. Finally, in Breaux v. Aetna Casualty and Surety Co., 272 F.Supp. 668 (E.D.La.1967), a medical malpractice case, the court held that prescription does not begin to run until the patient discovers or should have discovered his injury.

C.C. 3537 provides:

“The prescription mentioned in the preceding article runs:
“With respect to the merchandise injured or not delivered, from the day of the arrival of the vessel, or that on which she ought to have arrived.
“And in the other cases from that on which the injurious words, disturbance or damage were sustained.
“And where land, timber or property has been injured, cut, damaged or destroyed from the date knowledge of such damage is received by the owner thereof.”

In the case of Jones v. Texas & P. Ry. Co., 125 La. 542, 51 So. 582, 583 (1910), in interpreting this article, this court, through Justice Provosty, stated:

“A damage can be considered to have been sustained, within the meaning of article 3537, supra, only when it has manifested itself with sufficient certainty to be susceptible of proof in a court of justice.”

In the same case Justice Provosty continued :

“The uncertainty which precludes the coming into existence of a cause of action for damages, and which therefore prevents prescription from beginning to run, must not be confounded with the inability of the plaintiff to procure the necessary evidence for establishing in court a cause of action known to exist. This is illustrated by the case of Brown v. Clingman, 47 La.Ann. 25, 16 So. 564, where plaintiff knew that defendant was the incendiary who had set fire to his hotel, but could not prove it, and waited to bring his suit until he could secure the necessary evidence for making the proof, and the court sustained the prescription. If, in that case, the identity of the incendiary had been unknown, the prescription could not have run, for the bringing of the suit would have been impossible. . . .”51 So. 582, 583-584.

Equally applicable is the maxim, “contra non valentem agere, non currit prescripto.” Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972) ; Dalton v. Plumbers and Steamfitters Local Union No. 60, 240 La. 246, 122 So.2d 88 (1960); see Comment, The Scope of the Maxim Contra Non Valentem in Louisiana, 12 Tul.L.Rev. 244 (1938). Basically, prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, as long as such ignorance is not willful and does not result from his neglect. Walter v. Caffall, 192 La. 447, 188 So. 137 (1939); Bewley Furniture Co. v. Maryland Casualty Co., 271 So.2d 346 (La.App. 2d Cir. 1972), amended 285 So.2d 216 (La.1973); see Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952).

In Penn v. Inferno Manufacturing Corp., 199 So.2d 210, 219 (La.App. 1st Cir. 1967), writ refused, 251 La. 27, 202 So.2d 649 (1967), the Court of Appeal aptly stated:

“We further submit that the law of Louisiana is clear that prescription does not run against one without knowledge of the existence of facts which would entitle him to bring a suit against the proper defendant. . .

Of course the plaintiff must exercise reasonable diligence in ascertaining the identity of the party injuring him. Martin v. Mud Supply Co., 239 La. 616, 119 So.2d 484 (1960); Patin v. Stockstill, 315 So.2d 868 (La.App. 1st Cir. 1975); Dagenhart v. Robertson Truck Lines, 230 So.2d 916 (La.App. 1st Cir. 1970).

The record in the instant case consists merely of pleadings and briefs. No evidence relating to the time when the damage appeared is before us. Therefore, we remand this case to the trial court for a further determination of whether the plea of one year’s prescription is well founded.

Accordingly, the decision of the Court of Appeal is reversed and the cause is remanded to the trial court for proceedings consistent with the views herein expressed; defendant is cast for costs of this review.

      . “One cannot trespass on his Neighbour’s Ground. — Although a proprietor may do in his own ground whatever he pleases, yet he cannot make in it any work which may deprive his neighbour of the liberty of enjoying his own, or which may cause him any damage. Thus, the proprietor of a piece of ground, on which there is no building, cannot raise one whose roof may jut out on his neighbour’s ground, and there discharge its waters. Thus, one cannot make a plantation, or a building, and other works, but at certain distances from the confines. Thus, one cannot make a stove, an oven, or any other work against even a partition-wall which may be in hazard of being damaged by it. And as for such sorts of works as may do hurt, and, which cannot be made but at certain distances, or with other precautions, we ought, with regard to them, to observe the rules which custom and use have established.” J. Domat, The Civil Law in its Natural Order, Book 1, Title 12, § 2, No. 8 (Cushing’s ed., Strahan’s tr. 1861).

      . See Stone, Tort Doctrine in Louisiana: The Obligations of Neighborhood, 40 Tul.L. Rev. 701 (1966).

      . Yiannopoulos, Civil Responsibility in the Framework of Vicinage, 48 Tul.L.Rev. 195, 204 (1974).

      . See Stone, Tort Doctrine in Louisiana: The Obligations of Neighborhood, 40 Tul.L. Rev. 701, at 709, wherein the author points out that such an approach finds favor among many of the French commentators.

      . In note 14 of the Langlois decision, article 667 is cited as an example of liability for fault which does not encompass negligence.

      . Article 670 of our Code is treated by Domat in Book 2, Title 8, Of Damages Occasioned by Faults which do not Amount to a Crime or Offence, § 3, Of the Damage which may Happen by the Fall of a Building, or of any New Work. J. Domat, The Civil Law in its Natural Order, Book 2, Title 8, § 3, No. 1573-1579.

      . As its authority, the court cited Springer v. Aetna Casualty and Surety Co., 169 So.2d 171 (La.App. 4th Cir. 1964), which held, without citing authority, that it is well settled in Louisiana that liberative prescription for tortious conduct by physicians does not begin to run until the patient discovers or reasonably should have discovered his injury.


author: TATE, Justice. DIXON, Justice

text:
    STATE of Louisiana, Appellee, v. Danny LEWIS, Appellant.
    No. 56977.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Rehearing Denied March 26, 1976.

      J. Michael Small, Gravel, Roy & Burnes, Alexandria, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeannette T. Knoll, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant Lewis was convicted of distribution of a controlled dangerous substance (phencyclidine), La.R.S. 40:968A, and sentenced to six years at hard labor. Upon his appeal, he relies upon six assignments of error, which present three principal issues.

Context facts

The specific charge, as amplified and limited by a bill of particulars, is that defendant Lewis sold to Herman Rogers (a state trooper working as an undercover agent) three packets of phencyclidine (PHC) for thirty dollars. This transaction took place at a bowling alley near Mansura at about 10:00 p. m.

Preliminary to this transaction, Rogers was driving his vehicle in the company of Francisco and Keno. The latter were drug users; they did not know that Rogers was an undercover police agent. They were looking for “grass” (marijuana), when they saw Lewis parked outside a Dairy Frost with his family.

Rogers parked his car near the defendant Lewis’ car. Francisco left the trooper’s car, went to and conversed with Lewis, and then, per arrangements then made, both cars met a few minutes later at the bowling alley. At this time, Francisco again approached Lewis, who handed him some packets apparently containing drugs, which Francisco brought back to Rogers for examination, and then returned them to Lewis. Since the manager of the bowling alley opened his door, both cars then left.

By arrangement, both cars drove to a restaurant parking lot to complete the transaction. Once again Francisco went to Lewis’ car, obtained three packets (one of a vegetable-like substance (marijuana) in a clear plastic bag, two of a white powdered substance (PHC) wrapped in aluminum foil), obtained thirty dollars from Rogers, returned to Lewis’ car and gave the money to him, then returned to Trooper Rogers’ car. This first transaction occurred at about 9:35 p. m.

Then, again by pre-arrangement (to obtain more drugs), the Rogers’ car returned to the bowling alley parking lot and waited for Lewis to return again. He arrived about twenty minutes later. At that time (10:00 p. m.), again, Francisco went up to the Lewis car, was handed seven packets (three of PHC in aluminum foil and four of marijuana in plastic bags) by Lewis, obtained seventy dollars from Rogers, and gave the seventy dollars to Lewis. Both cars then drove off.

In the present case Lewis is charged only with distribution of the three packets of PHC in the last (10:00 p. m.) transaction. (However, by appropriate notice before the trial, Lewis had been informed that the state intended to introduce into evidence the 9:35 p. m. marijuana-PHC transaction, as well as the sale of marijuana at 10:00 p. m. which was simultaneous with the PHC-distribution presently charged.)

In each of the incidents above-described, the Rogers’ car was parked within ten feet of the Lewis car. In each instance, Rogers could see the transfer of packets and money between Lewis and Francisco, although he could not hear the conversation. In each instance, Rogers’ part in the transactions was observable by the defendant Lewis. Francisco, testifying for the state (apparently under a plea bargain) described the transactions with Lewis as being for the purpose of transferring the drugs from Lewis to Trooper Rogers in return for the money paid by Rogers.

From the factual evidence above described, the trial jury could infer (as it did) that Lewis was selling (distributing) the drugs to Rogers, using Francisco as the messenger between the two.

Issuers of the appeal

The three principal issues raised by the defendant’s appeal relate to contentions that: (1) No transaction occurred between the defendant Lewis and Trooper Rogers, as charged; (2) An inculpatory statement was improperly used against the accused; (3) Improper impeachment of a defense witness was allowed.

(1) No transaction occurred between the defendant Lewis and Trooper Rogers

The chief issue raised on this appeal is based upon the contention that the evidence shows that Francisco (not Rogers) purchased the drugs from the defendant Lewis. Based upon this contention, the defendant argues that the present bill of particulars prejudicially misinformed him that the charge was that Lewis distributed and sold the drugs to Rogers.

Based on this contention, the defendant argues that the only evidence admissible was of a sale from the defendant Lewis to Trooper Rogers. Thus, he contends, the evidence of the transfer to Francisco (and from Francisco to Rogers) was inadmissible under the charge, as limited by the bill of particulars to a transaction between Lewis and Rogers. (Assignment of error No. 2). He further contends that he is entitled to a mistrial (Assignment of error No. 3), and at any rate to a continuance (Assignment of error No. 4), because of the difference in the evidence presented by the state from that indicated by the bill of particulars. Finally, he contends (Assignment of error No. 5) that the other offenses (the 9:35 p. m. transaction and the 10:00 p. m. simultaneous marijuana transaction) were inconsistent with the pretrial notice of transactions between the defendant Lewis and Rogers — whereas the evidence introduced was instead of transactions between Lewis and Francisco.

In substance, the defendant thus contends that there were two distinct distributions: (a) that between Lewis and Francisco; (b) that between Francisco and Rogers.

However, as our summary of the evidence indicates, the delivery and distribution, La.R.S. 40:961(9), (15), was between the defendant Lewis to the agent Rogers, even though Francisco himself may have been a principal in the transaction or may himself have been guilty of a distribution or a delivery.

We find no merit to this contention.

(2) Inculpatory statement improperly used against the defendant

By a motion for a bill of particulars, the defendant requested information as to any oral communication, either incul-patory or exculpatory, allegedly made by the defendant to any law enforcement agent. In answer, the state informed the defendant that the defendant did not make any oral admissions or statements to any member of the Avoyelles parish law enforcement agency, but that “at this time, the state is not informed as to whether any statements had been made to law enforcement officers of Rapides parish or elsewhere.” (Rogers was assigned to the Rapides and Calcasieu parish state police agencies.)

Shortly after the trial commenced, the prosecutor for the first time learned that the defendant Lewis had made an inculpa-tory statement to the undercover agent Rogers about a week after the transaction. The statement (about a line of testimony) was to the effect that Lewis and Rogers had run into one another a week after the sale and that Lewis asked Rogers, “How was the stuff?”, and Rogers informed him, “It was all right.”

Before introducing the statement, the prosecutor at a hearing outside the presence of the jury established that the prosecutor had interviewed the undercover agent for the first time on the day of the trial and had for the first time learned of the statement. The prosecutor also established that the statement was not contained in the investigation report. There is no issue at all that the accurate response in the answer to the bill of particulars was intended to mislead the defendant.

The belated discovery of the inculpatory statement did not result from any intended or bad faith desire by the prosecutor to keep the defendant in the dark as to it. As soon as the existence of the inculpatory statement was discovered, the prosecutor brought it to the attention of the defendant and the trial court outside the presence of the jury. Outside the presence of the jury, he adequately established the reasons for the state’s failure to disclose the existence of the statement earlier.

Under the circumstances shown, we find no error in the trial court’s permitting introducing of the inculpatory statement. Unlike State v. Boothe, 310 So.2d 826 (La.1975), there was no patent misrepresentation, either deliberate or negligent, nor was the inculpatory statement of such a nature or importance as to constitute the injection of any issue of substantial impact upon the preparation for trial or upon trial tactics.

We therefore do not find reversible merit in this assignment.

(3)Improper impeachment of a defense witness

On cross-examination of a defense witness, the state, over objection, was permitted to ask the witness if his brother had been “busted” (i. e., arrested).

The credibility of a witness himself may not be impeached by asking him whether or not he has been arrested; his impeachment can only be secured by questions as to his prior convictions. La.R.S. 15 :495. However, the state contends that the witness can be impeached as to “bias” or “interest” by questioning him as to whether a member of his family (his brother) had been arrested, even though on an offense not related to the charge before the court. (The evidence does not show on what grounds the arrest was made, although the argument of counsel in this court indicates that a drug offense was involved.)

The trial court was in error in permitting impeachment of the witness on the ground sought.

Our jurisprudence permits impeachment for any bias or interest of the witness which it might be reasonably inferred might influence his perception or color his testimony. State v. Senegal, 316 So.2d 124 (La.1975); State v. Elias, 229 La. 929, 87 So.2d 132 (1956) (chief prosecuting witness’s bias towards members of the accused's family as based upon several incidents); Pugh, Louisiana Evidence Law 110-11 (1974); Comment, Impeachment, 21 Loyola L.Rev. 346, 360-64 (1975).

On the other hand, as these sources also indicate, questions or evidence as to general prejudices or special biases or interests too irrelevant to or too remote from the issues of the case at trial have been considered improper as impeachment. State v. Romano, 320 So.2d 167 (La.1975) (syllabi 3, 4); State v. Darby, 310 So.2d 547 (La.1975); State v. Cullens, 168 La. 976, 123 So. 645 (1929); State v. Morgan, 142 La. 755, 77 So. 588 (1917). See also La.R.S. 15:494: “It is not competent to impeach a witness as to collateral facts or irrelevant matter.” In explaining this limitation, the decisions sometimes state that the witness’s bias against the opposing party must be direct or personal rather than indirect or general in nature.

In the present instance, a defense witness was asked if his brother had been arrested for an offense not related to the present prosecution.

Any bias that may have resulted from such a circumstance is too remote and involving too collateral an issue for it to be available as impeachment. If the credibility of the witness himself may not be impeached by questions to his own arrest on a non-related charge, La.R.S. 15:495, State v. Romano, 320 So.2d 167 (La.1975) (syllabus 5), similar reasons of policy and fairness prevent impeachment of his credibility by questions or evidence as to any bias that might remotely result from the arrest of a member of his family on charges entirely irrelevant to the present prosecution.

As noted in State v. Cullens, 168 La. 976, 123 So. 645 (1929), similarly refusing to permit impeachment of a witness on circumstances arising out of the arrest of his father, 123 So. 647: “The circumstance, itself, is too remote. The fact that defendant’s father caused the arrest of the witness’ father on a criminal charge unconnected with the offense for which defendant, himself, is being prosecuted, may be a reason for the existence of an unfriendly feeling on the part of the witness against defendant’s father, but it by no means fol-lpws that it also produced in his mind a feeling of hostility towards the defendant. If testimony of this character can be introduced to discredit a witness, the question then recurs: Where is the limit to the introduction of testimony on collateral facts for that purpose ?”

Therefore, in the present case, it was error to permit impeachment of the defense witness on the ground sought.

Nevertheless, reversible error did not result. The witness (Prevot) himself testified to a collateral issue: Whether, shortly before the offense charged, the defendant Lewis and Officer Rogers had quarrelled at Lewis’ home (which Rogers had denied), sought to be proved as evidence of bias on Rogers’ part. We are doubtful that the jury believed or disbelieved the evidence of the quarrel because of the short one-line (“Yes, m’am”) admission by the witness that his brother had been “busted on two occasions”; or that, whether or not the quarrel took place, it affected the trial jury’s ultimate evaluation of the credibility of the police agent as to the drug-distribution of which it found the defendant guilty.

Since the error was not a substantial violation of the constitutional or statutory right of the accused, nor was it prejudicial to the substantial rights of the -accused or of a nature likely to cause a miscarriage of justice, it is not cause for reversal of the conviction. La.C.Cr.P. art. 921.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

DIXON, J., concurs with reasons.

DENNIS, J., concurs for the reasons stated by DIXON, J.

DIXON, Justice

(concurring).

In my opinion there was no error in the attempt to impeach a defense witness by questioning him concerning possible bias because of a previous arrest of his brother.

      . La.R.S. 14:24 provides :
      “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

      . American Heritage Dictionary of the English Language, verbo “bust”, lists “To place under arrest” as a meaning of the word. (1969).

      . La.R.S. 15 :492 provides :
      “When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admits such fact, any other witness may be examined to establish the same.” (Italics ours.)

      .If the arrest had been for an offense connected with the present prosecution, then a different issue may have been presented. Cf. State v. Graziani, 168 La. 297, 121 So. 872 (1929).


author: SUMMERS, Justice. TATE, Justice DIXON, Justice CALOGERO, Justice

text:
    STATE of Louisiana v. Elzie BALL and Bernell Thompson.
    No. 56953.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Allan J. Tillery, Arabi, for Elzie Ball.
    John M. Lawrence, New Orleans, for Bernell Thompson.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Gilbert V. An-dry, III, Asst. Dist. Atty., for plaintiff-ap-pellee.
   SUMMERS, Justice.

Elzie Ball and Bernell Thompson were charged by bill of information dated June 20, 1974 with the armed robbery of Anne Sue Gurganus at the Nunez Bar and Grill in Chalmette, St. Bernard Parish, on May 30, 1974. After a mistrial on December 10, 1974, defendants were tried again on February 18 and 19, 1975. The jury returned a unanimous verdict of guilty as charged, and defendants Were sentenced to serve thirty years at hard labor, without benefit of parole, probation or suspension of sentence. On this appeal four assignments of error are relied upon for reversal of the convictions and sentences.

Three persons, two men and one woman, participated in the armed robbery of the Nunez Bar and Restaurant during the early morning hours of May 30, 1974. The woman, Jo Ann Paul, turned State’s evidence and testified in detail to the planning and execution of the robbery. She identified Ball and Thompson; all three were in turn identified by the victims and eyewitnesses to the crime. The fact of the robbery is not disputed, the defense being that the identifications were faulty and legally objectionable.

Assignment No. 1

In a motion and prayer for oyer defendants sought production and pre-trial inspection of 1) all technical reports or analysis of any objects found or obtained at the scene of the alleged offense which may be used against the defendants by the State; 2) a copy of any picture taken of the defendants at any line-up conducted during the investigation of this case which was in the possession of the State or law enforcement officers; and 3) a copy of any statement allegedly made by any witnesses or prospective witnesses that the State intended to use against the defendants at the trial.

The State responded that it was not required to furnish the information requested. When the matter came for hearing the trial judge ruled “that the State has satisfied the Prayer for Oyer as defined by the Laws of the State of Louisiana and the Rules of the Supreme Court interpreting that law.” The ruling is correct. Just one year ago, with only one justice concurring, this issue was squarely met by the Court in State v. Collins, 308 So.2d 263 (La.1975), where it was held:

“As a general proposition the State is not required to produce the physical evidence it intends to use at the trial. Exceptions to this rule have recognized the right of a defendant to view and copy his written confession in the possession of the prosecutor, State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945); to obtain production of a taped confession, State v. Hall, 253 La. 425, 218 So.2d 320 (1969); or some of the confiscated narcotic evidence in a narcotic prosecution, State v. Migliore, 261 La. 722, 260 So.2d 682 (1970). When proper allegations support a finding that the defendant acted in self-defense and specifies that the weapon sought was used by the alleged victim against the defendant, supporting a claim of self-defense, we have required production of the weapon by the State. State v. Woodruff, 281 So.2d 95 (La.1973).”

This statement of the law was again approved by this Court in State v. White, 321 So.2d 491, on November 3, 1975.

In addition, according to Section 3 of Title 44 of the Revised Statutes the law does not require disclosure of records, or the information contained therein, held by offices of the attorney general, district attorneys, sheriffs, police departments, marshals, investigators, correctional agencies, investigative agencies, or intelligence agencies of the State pertaining to pending criminal litigation. State v. Rose, 271 So. 2d 863 (La.1973); State v. Square, 257 La. 743, 244 So.2d 200 (1971); State v. Dickson, 248 La. 500, 180 So.2d 403 (1965); State v. Johnson, 249 La. 950, 192 So.2d 135 (1966), cert. denied, 388 U.S. 923, 87 S.Ct. 2144, 18 L.Ed.2d 1374.

The assignment of error has no merit.

Assignment No. 2

Prior to trial defendants filed a motion to suppress any identification evidence because certain pictures of defendants were shown to State witnesses under conditions that were unduly suggestive, in the absence of defendants or their counsel.

From the testimony of the State’s witnesses at the hearing on the motion, it appears that they were first presented a large number of mug shots soon after the robbery and were unable to identify the defendants. Later, however, when the sheriff’s deputies presented only three defendants, Salvador Campagna, a State witness who was then in the hospital with a wound received during the robbery, positively identified the defendants. On the other hand, when viewing more than twenty photographs out of court, the State’s witness Anne Sue Gurganus, a cocktail waitress in the bar, identified two of the three individuals involved in the robbery, one of the men and the woman. Neither of these witnesses were called upon to view a police lineup composed of defendants and others with similar characteristics.

Although there is no showing to that effect, it may be inferred that Cam-pagna’s identification of the three participants from only three photographs, some time after the date of the robbery, was im-permissibly suggestive because this action can be considered as a one-on-one photographic identification, a questionable practice under the circumstances. However, even if the out-of-court photographic identification was tainted, if the in-court identification had a source independent of the out-of-court identification, the in-court identification does not violate defendant’s due process rights. State v. Moseley, 284 So.2d 749 (La.1973).

A review of the record satisfactorily establishes an independent source for the in-court identification unassociated with the out-of-court photographic identification. For instance, Campagna saw the three participants from the moment they entered the barroom and restaurant where the robbery occurred. Thompson and the woman ordered lunches, while Ball sat at the bar. Later, all three sat together at the bar for a while, then Ball and the woman pretended to play a coin machine. Finally, Ball grabbed Campagna by the collar, demanded his money and watch, shot him in the side, and made him lie on the floor. Meanwhile Thompson took a position at the entrance door. In addition to observing Ball and the woman at the bar and while they walked around the room, Campagna had an opportunity to obtain a lasting impression of Ball’s physical characteristics during the close encounter with Ball while he was being handled, shot and robbed. According to some of the testimony, the robbery lasted from ten to fifteen minutes.

Ball and Thompson were also identified by Anne Sue Gurganus, the cocktail waitress, and Earline Labat, who worked in the kitchen. Earline Labat had an excellent opportunity to observe one of them when he confronted her under a brighter light than the barroom light. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967); State v. Peevy, 321 So.2d 324 (La.1975); State v. Allen, 251 La. 237, 203 So.2d 705 (1967).

The fact that no defense counsel was present at the time of the photographic identification is not disputed. Nevertheless, there is no merit to the defense allegation in the motion that his Sixth Amendment rights under the Federal Constitution were violated because, among other reasons, he was not represented by counsel at the pre-indictment photographic identification. The Federal Constitution’s Sixth Amendment right to counsel does not require that defendant be represented by counsel at pre-indictment line-ups, photographic or otherwise. State v. Gilmore, 323 So.2d 459 (La.1975).

It is also noted that during the testimony of the three eyewitnesses, Anne Sue Gur-ganus, Earline Labat and Salvador Cam-pagna, the State offered no evidence relating to the out-of-court identification, and the defense made no objection to the in-court identification. See State v. Moseley, 284 So.2d 749 (La. 1973).

This assignment has no merit.

Assignment No. 3

Ralph Carreras had been a deputy of the St. Bernard Sheriff’s office for nine years at the time of the trial. He testified that on the day of the robbery a green metal box was brought to the Sheriff’s office by Detectives Boda and Lombardo, who were in charge of certain phases of the investigation of this robbery. He and Deputy Sanchez dusted the box for fingerprints and were able to lift several partial smudges and other prints which he transferred to cards initialed by him. He then sent the cards to the crime lab in Baton Rouge. On cross-examination he testified that he had had training in lifting fingerprints over the past years. Attendance at three police schools, one scientific investigation school and another relating to general law enforcement, at which he learned to lift fingerprints during short courses on the subject, were the extent of his formal training. He explained the technique by which fingerprints are lifted and the tools and material employed in the process. When asked how often he had performed the operation he estimated “five thousand times since I’ve been with the Department.” He readily acknowledged, however, that he was unable to analyze the fingerprints when lifted, claiming no expertise in the classification of fingerprints.

When he identified the card of transferred fingerprints lifted from the green metal box, defense counsel objected that he had “no expertise in the discipline of taking fingerprints” and therefore he could not testify that the prints on the card were the prints he lifted from the green metal box. Upon inquiry by the court, the witness said he knew these to be the prints he lifted because his initials were on the cards. The defense objection was then overruled, and this ruling is the basis of this assignment of error.

There is no error in the ruling. Deputy Carrera’s training and extensive experience over a period of nine years provided him with ample expertise to enable him to properly perform the purely mechanical operation involved in lifting fingerprints. Admittedly he was not qualified to give expert opinion testimony involving the analysis and classification of fingerprints, and he was not called upon to do so. He satisfied the trial judge that his initials on the card to which the lifted fingerprints had been transferred were sufficient to permit the required identification.

Assignment No. 4

Defendants contend that during the State’s rebuttal argument the District Attorney made certain prejudicial remarks within the hearing of the jury by referring to another crime, murder, for which defendants were not being tried.

By the testimony at the trial it is shown that Campagna was shot by Ball during the robbery and the bullet entered Campagna’s right hip. During his closing argument to the jury, defense counsel said that Ball was different from those who composed the jury and he made comparisons, concluding that these differences should not influence their judgment.

In the course of his rebuttal argument to the jury the Assistant District Attorney declared:

“I just have a few comments. Mr. Tillery says Mr. Ball is different from you. I will concur wholeheartedly in that statement. Mr. Ball, the evidence has shown, is an armed robber and about two or three or four inches, possibly, away from being a murderer when he shot Mr. Campagna, and shot him in the blink of an eye.”

When the defendant objected, the trial judge overruled the objection, giving as his reason that the Assistant District Attorney was “commenting on evidence”. The ruling is correct. The remarks were, moreover, permissible rebuttal.

Ball’s actions did place him on the brink of murder under the facts of this case, for had Campagna died as a result of the wound, the law would define the killing during the perpetration of an armed robbery as murder. La.R.S. 14:30. The comment on the evidence, then, was a rational one. But Ball was not charged with murder, and the State’s argument does not say that he was, only that his conduct could have amounted to murder if the shot had been fatal. The jurors were undoubtedly aware of the fact that Ball would have been a murderer if Campagna had been killed. And there is little probability that the jury considered the remarks applicable to the defendant’s case, except insofar as the remark pointed up the gravity of Ball’s actions and how his actions were different from actions the jurors might be responsible for. As such, the argument does not transcend the liberality the law permits in the argument of counsel to the jury.

In our view this comment is similar to the remarks of the Assistant District Attorney in State v. Gilbert, 286 So.2d 345 (La.1973), appeal dismissed 420 U.S. 902, 95 S.Ct. 820, 42 L.Ed.2d 832 (1975):

“Why, of course, it is a serious offense. Mr. O’Corr could well not be here today. If anything had happened in that armed robbery, as it so often does, the person, the victim, is not here to testify.”

Our decision in State v. Gilbert found that the remarks were hypothetical and they added no prejudice which did not already exist in the minds of the jurymen. The holding in the instant case is the same.

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

TATE, J., assigns additional concurring reasons.

DIXON, J., concurs with reasons.

CALOGERO, J., concurs with reasons.

TATE, Justice

(concurring).

There may not have been reversible error, after the conviction, because of the failure to permit pre-trial discovery of the physical evidence. Nevertheless, the practice in many district courts of allowing it is salutary, not only in the interest of fair trial, but also of avoiding due process denials which, on post-conviction proceeding, will cause the state conviction to be set aside. See Barnard v. Henderson, 514 F. 2d 744 (C A 5,1975).

Like my brother Dixon, however, I feel that dicta in the opinion is erroneous in implying that La.R.S. 44:3 justifies nondisclosure of police records as privileged.

The purpose of the public records act, La.R.S. 44:1 et seq., is only to recognize the right of any elector or taxpayer to examine and copy public records. La.R.S. 44:31-33. To this right of public and open inspection at convenient time, a number of exceptions are made, such as records of investigative agencies, La.R.S. 44:3 (here in question), or of hospital agencies, La.R.S. 44:7.

However, the act does not and was not intended to create a privilege from production of such records for valid judicial purposes. We so held recently, in State v. Berry, 324 So.2d 822, 827 (1974), in rejecting a defendant’s claim to privilege founded upon that statute. For similar reasons, the state likewise enjoys no privilege by reason of the statute.

The chief purpose of the open-records law, Chapter 1 of Title 44, La.R.S., is to assure open public access to public records, with limited exceptions, such as for law enforcement investigative records. The latter exemption specifically applies only from this requirement of indiscriminate general public access: La.R.S. 44:3 provides only that “Nothing in this Chapter [which provides for such indiscriminate public access]” shall be construed to apply to such investigative records.

The majority is in error in inferring a privilege from production for judicial purposes of such records. When the interests of a fair trial or of constitutional requirements demand their disclosure in judicial proceedings, they must be produced.

DIXON, Justice

(concurring).

I concur with the conclusion, but believe the reference to R.S. 44:3 is inappropriate.

R.S. 44:1 et seq. is the Louisiana Public Records Act. 44:3 exempts from the provisions of the act certain records (of investigative and prosecutorial offices) which pertain to pending criminal litigation. The Public Records Act is misinterpreted by the majority, and is irrelevant to the issues of this case.

CALOGERO, Justice

(concurring).

I concur in the result although I am not in accord with the majority’s treatment of assignment of error number one. R.S. 44:3 is not relevant to the issues in this case.


author: DIXON, J.,

text:
    Dusty P. CHAISSON et al. v. J. RAY McDERMOTT & CO. et al.
    No. 57518.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Rodney H. Levron, Sr. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Lafourche, 324 So.2d 844.

Writ denied. Under the facts found by the Court of Appeal, we cannot say that its result is incorrect.

DIXON, J.,

concurs in the denial, being of the opinion the reasons given by the court of appeal in holding the driver negligent were erroneous, and that the only evidence of negligence was the undertaking of a U-turn unsuccessfully.