author: MARCUS, Justice.

text:
    Ben JOHNSON, Sr. v. Geddes A. JONES-JOURNET et al.
    No. 55971.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Oct. 9, 1975.

      A. M. Trudeau, Jr., New Orleans, for plaintiff-applicant.
    Jesse James Marks, Dorsey & Marks, New Orleans, for defendant-respondent Charles H. D. Bowers, Jr.
   MARCUS, Justice.

On November 30, 1970, a promissory note payable to the order of Ben D. Johnson, Sr., was executed by Geddes A. Jones-Journet, Charles H. D. Bowers, Jr., Mrs. Naomi J. Parnell, George F. Geddes, Willie P. Davis, Sr., and Mrs. Velma M. Brewer. Johnson instituted this suit to collect payment on the note on November 3, 1971, naming the six makers as defendants. Alleging that defendants were “jointly and severally indebted” to him, plaintiff sought judgment against all defendants, jointly and severally, in the full sum demanded. Of the five defendants served, Bowers and Davis failed to file responsive pleadings within the delays provided by law, and, on May 18, 1972, a default judgment was rendered against them, casting them jointly and severally liable for the amount of the note less the amount received by plaintiff in a compromise with another . defendant. Neither Davis nor Bowers took an appeal from this judgment.

On May 11, 1973, plaintiff filed a motion to examine Bowers, his judgment debtor, in aid of the execution of his judgment. On June 6, 1973, Bowers responded by filing what he termed a “Motion to Annul and in the Alternative Modify Judgment” on the ground that “ . . . the judgment when taken was not obtainable in law.” More specifically, defendant urged that, on the face of the pleadings, his liability to plaintiff as a co-maker was joint rather than in solido. Hence, he argued, judgment against him should have been, at most, limited to his virile share of the obligation represented by the note. Plaintiff filed an exception of no cause of action, which was sustained by the trial judge on the ground that the allegations of the attack constituted a defense that should have been urged in an appearance prior to final judgment.

On appeal, the judgment of the trial court was reversed, and plaintiff’s default judgment was annulled. Johnson v. Jones-Journet, 306 So.2d 827 (La.App. 4th Cir. 1974). The court of appeal, with one judge dissenting, held that obtaining a judgment on a claim patently insupportable by law is an “ill practice” under article 2004 of the Code of Civil Procedure, regardless of the subjective intent of the party urging the claim. Accordingly, the court concluded that defendant had stated a cause of action by alleging that the judgment taken was not “obtainable in law” and was, therefore, entitled to have the judgment annulled. We granted plaintiff’s application for a writ of certiorari to review the judgment of the court of appeal. 39 So.2d 678 (La.1975).

Two issues must be considered for an appropriate resolution of this controversy: (1) whether the note evinces a joint or in solido obligation, and (2) if the obligation is joint, whether the allegations of defendant, if taken as true, form a sufficient basis for an action of nullity under article 2004 of the Code of Civil Procedure, which allows the annulment of judgments obtained by fraud or ill practices.

I.

When there is more than one obligor named in the same contract, the obligation it produces may, inter alia,, be either joint or in solido. When several persons join in the same contract to do the same thing, it produces a joint obligation on the part of the obligors; However, where several persons obligate themselves to the obligee by the terms in solido or use any other expressions that clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, it is called an obligation in solido on the part of the obligors. An obligation in solido is not presumed; it must be expressly stipulated.

Important consequences flow from the characterization of an obligation as joint or in solido. Where the obligation is joint, suit on the obligation must generally be brought against all obligors, and the liability of each joint obligor is limited to his virile share of the obligation. However, suit on an obligation in solido may be brought against any one of the obligors, and the entire amount may be recovered from the obligor sued.

It is well settled that, absent additional promissory language, the words “[w]e promise to pay” in a note signed by co-makers are insufficient to constitute the express stipulation of liability in solido required by law. In such a case, the obligation is considered to be joint, and the liability of each co-maker is limited to his virile share of the obligation. Thus, it is clear that, under ordinary circumstances, defendant’s liability on the note would be limited to his virile share, or one-sixth, of the obligation.

However, in his petition seeking judgment on the note, plaintiff alleged that the six defendants were “jointly and severally indebted” to him and prayed for judgment against all defendants “jointly and severally.” In Louisiana, the common law term “joint and several” is considered synonymous with the civil law term “in so-lido.” Clearly, by seeking a judgment decreeing the co-makers liable jointly and severally (i. e., in solido) on the note, plaintiff erroneously claimed greater relief than the law allowed him.

II.

Having determined that plaintiff was not originally entitled to the relief he claimed, we must decide whether plaintiff’s obtaining a judgment by default under these circumstances constituted an “ill practice.” According to article 2004 of the Code of Civil Procedure, any final judgment obtained by fraud or ill practices may be annulled. However, no definition of the term “ill practices” is given. Hence, an historical exegesis of the article is in order.

Article 2004 is drawn primarily from article 607 of the Code of Practice, which, in addition to announcing the general rule that judgments obtained by fraud or ill practices were subject to annulment, set forth as illustrations bribery of the judge or witnesses, production of forged documents, and perjury by the party obtaining the judgment. These illustrations were not considered exhaustive of actionable fraud or ill practices, however; the jurisprudence set forth two criteria to determine whether a judgment had, in fact, been obtained by actionable fraud or ill practices: (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) the enforcement of the judgment would have been unconscionable and inequitable.

When the Code of Civil Procedure replaced the Code of Practice in 1960, the former rule was retained as article 2004. Although the illustrations were deleted, “. . . there was no intention to change the law.” Hence, the criteria of relief set forth in the jurisprudence still obtains.

Evaluating defendant’s allegations in light of these principles, we are unable to agree with the majority of the court of appeal that, if taken as true, defendant’s allegations demonstrate a cause of action for annulment of the judgment on the ground that it was obtained through an “ill practice.” First, there is no allegation that defendant was deprived of any legal right; he had ample opportunity to appear and assert any defense he desired, either in the trial court or by appeal. Defendant argues that the rendition of a judgment against him stipulating greater liability than he should be held at law constitutes a deprivation of his legal rights. However, it is well settled that an action of nullity may not, by raising errors of law, serve as a substitute for an appeal. Second, considering that defendant was personally served in the original suit and afforded the opportunity to appear and urge that his liability was joint rather than in solido, it hardly seems unconscionable or inequitable to disallow his belated complaint that the judgment is contrary to law.

There are persuasive considerations against disturbing the integrity of final judgments obtained without artifice. Under article 2004, the legislature has determined that, where a judgment is obtained in such a way (i. e., by fraud or ill practices) that its enforcement would be unconscionable, fundamental principles of equity and fair play sufficiently counterbalance those considerations and require that a judgment debtor be allowed to challenge the legitimacy of the judgment taken against him. Here, defendant has failed to allege either by facts or conclusion that the judgment against him was procured by fraud or ill practices. Rather, he has demonstrated only the inadvertent failure of both the plaintiff and the trial judge to note that the prayer and judgment were based substantially on an error of law, which was a proper subject for a defense to the suit. For these reasons, the trial judge correctly determined that defendant had not alleged a proper ground to annul the judgment.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed, and the judgment of the district court sustaining the exception of no cause of action is reinstated.

      . The note read as follows:

      . Defendant Geddes A. Jones-Journet was never served. Defendants Naomi J. Parnell and Velma Brewer were served and filed answers denying that they had executed the note in question. Defendant George P. Geddes was an absentee; a curator ad hoc appointed to represent him was served and filed an answer on his behalf generally denying the allegations of the petition. Plaintiff later compromised his claim against Geddes, and suit against him was dismissed with prejudice. The remaining two defendants, Willie P. Davis, Sr., and Dr. Charles H. D. Bowers, Jr., were served, but did not file responsive pleadings. Service of process was domiciliary on Davis and personal on Bowers.

      . The action to annul a judgment on grounds of fraud or ill practices must be brought within one year of the discovery by the plaintiff. La.Code Civ.,P. art. 2004 (1960). However, no plea of prescription has been filed, and “[e]ourts can not supply the plea of prescription.” La.Civil Code art. 3463 (1870) ; La.Code Civ.P. art. 327 (1960). Hence, this issue is not before us.

      . This was, in effect, an action to annul the judgment. See La.Code Civ.P. arts. 2001-06 (1960). Such an action is considered an ordinary proceeding as opposed to a summary proceeding. However, no objection was made to the procedure employed. Hence, any error in this regard is considered waived.

      . La.Civil Code art. 2077 (1870).

      . Id. art. 2080.

      . Id. art. 2082. See also id. art. 2091.

      . Id. art. 2093.

      . Id. art. 2086.

      . Id. art. 2086.
      The proportion ... is calculated by the number of the obligors, each one answering for an equal part, unless the parties have expressed a different intention.

        Id.

      . Id. arts. 2091, 2094, 2095. See also id. arts. 2097, 2098.

      . E. g., Watkins v. Haydel, 172 La. 826, 135 So. 371 (1931); Swan v. Mayer, 211 So.2d 346 (La.App. 4th Cir. 1968). in contrast, where co-makers sign a note containing the promissory words “I promise to pay,” each co-maker is regarded as having promised to pay the entire obligation, resulting in solidary liability on the part of each for the entire debt. La.R.S. 10:3-118 (e) (1950), added by La.Acts 1974, No. 92, § 1, formerly La.R.S. 7:17(7) (1950).

      . See, e. g., Meadow Brook Nat’l. Bank v. Beetle, 302 F.Supp. 62, 67 n. 2 (E.D.La.1969); Shreveport Bank & Trust Co. v. Tyler, 275 So.2d 451, 452 (La.App. 2d Cir. 1973); Flintkote Co. v. Thomas, 223 So.2d 676 (La.App. 4th Cir. 1969); Wilks v. Allstate Insurance Co., 195 So.2d 390 (La.App. 3d Cir. 1967). For a discussion of the common law rule of joint and several liability see United States v. Wainer, 108 F.Supp. 386 (N.D.Ill.1952), rev'd on other grounds, 211 F.2d 669 (7th Cir. 1954); Schram v. Perkins, 38 F.Supp. 404 (E.D.Mich.1941).
      For example, article 2088 of the Civil Code provides:
      The obligation is in solido, or joint and several between several creditors, when the title expressly gives to each of them the right of demanding payment of the total of what is due, and when the payment made to any one of them discharges the debtor, although the benefit of the obligation be to be shared and divided among the different creditors.
      The phrase “or joint and several” has no counterpart in the French text of article 2083 of the Civil Code of 1825, the predecessor of article 2088 of the present Civil Code.
      Similarly, La.R.S. 10:3-118 provides in pertinent part:
      The following rules apply to all instruments :

      (e) When an instrument containing the words T promise to pay’ is signed by two or more persons, they are deemed to be jointly and severally liable thereon.
      The Louisiana Business Corporation Law provides in pertinent part:

      If property or services taken in payment for shares are grossly overvalued contrary to the provisions of this Chapter, the shareholders who knowingly, or without the exercise of reasonable care and inquiry, consented thereto or voted in favor thereof shall be liable jointly and severally to the corporation for the benefit of creditors or shareholders, as their respective and relative interests may appear, for any loss or damage arising therefrom.

      La.R.S. 12:93 (1950), added by, La.Acts 1968, No. 105, § 1.

      . Article 607 of the Code of Practice provided :
      A definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered; as if he had obtained the same by bribing the judge or the witnesses, or by producing forged documents, or by denying having received the payments of a sum, the receipt of which the defendant had lost or could not find at the time, but has found since the rendering of the judgment.

      . E. g., Succession of Gilmore, 157 La. 130, 102 So. 94 (1924); City of New Orlewns v. Le Bourgeois, 50 La.Ann. 591, 23 So. 542 (1898); Lazarus v. McGuirk, 42 La.Ann. 194, 8 So. 253 (1890).

      . La.Code Civ.P. art. 2004, Comment (b) (1960).

      . In Walsh v. Walsh, 215 La. 1099, 42 So.2d 860 (1949), cert. denied, 339 U.S. 914, 70 S.Ct. 575, 94 L.Ed. 1340 (1950), this court observed
      the difference between a judgment which may be erroneous as a matter of law, because of an insufficiency of evidence or otherwise, and one procured by fraud, ill-practice, or misrepresentation. It is only in the latter case that the action of nullity is permissible under article 607 of the Code of Practice — for it is firmly established that the remedy cannot be employed as a substitute for an appeal.

        Id. at 1113, 42 So.2d at 864 (citations omitted).


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Edward J. SCOTT, Appellant.
    No. 56220.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Nov. 4, 1975.

      Guy Johnson, Bernard S. Dolbear, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Scott was convicted of armed robbery, La.R.S. 14:64, and sentenced as a multiple offender, La.R.S. 15:529.1, to serve one hundred years at hard labor. His appeal presents eight assignments of error. Despite ingenious presentation by his counsel, these assignments present no substantial issue for reversal.

Context Facts:

Two armed robbers invaded a doctor’s office in mid-afternoon. Eight people — a doctor, some office workers, a visitor, and two patients — were forced to lie on the floor, tied, and robbed. Cash, wallets, watches, and other property were taken from them. At the trial, two of those robbed positively identified the accused as one of the robbers.

An hour after the robbery the defendant Scott was arrested as he attempted to use a credit card stolen in the robbery to purchase some clothing at a department store. (The victim had reported it as stolen immediately after the robbery.) He was released on bail.

When police investigation connected the stolen credit card with the present robbery, police officers went to his home the next day (November 1) and arrested him for it. At that time, despite Miranda warnings, he made certain incriminating statements and consented to a search of his premises. As a result of the search, the police seized two leather coats similar to those worn by the robbers and some shotgun shells and a pistol bullet. (The robbers had been armed with a shotgun and with a pistol, which was subsequently recovered along with the stolen watches when Scott’s identified companion, Smith, was arrested and led them to where they were hidden.)

Assignments of Error:

We find no reversible merit to the assignments of error:

Assignment 1: The defendant entered a continuing objection, which was overruled, to any evidence of the department store theft on the ground that it was evidence of another crime introduced without compliance with the requirements of State v. Prieur, 277 So.2d 126 (La.1974). Prieur, however, was designed only to regulate evidence of unrelated crimes otherwise-inadmissible except as permitted by La.R.S. 15:445, 446 to prove knowledge, intent, or system. See Prieur at 277 So.2d 130; State v. Banks, 307 So.2d 594 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). The circumstances surrounding the department store theft by use of a credit card stolen in the robbery were independently admissible as relevantly tending to prove that the accused was a principal in the robbery as utilizing the proceeds thereof. See State v. Davis, 311 So.2d 860 (La.1975).

Assignments 2 and 5: Under current holdings of this court, the police officers were not required to produce for inspection at the trial the police reports which they had utilized out of court to refresh their memory as to oral statements given them by the accused; at least in the absence of a showing that they contained statements contrary to the witness’ trial testimony. See, e.g., State v. Lane, 302 So.2d 880 (La.1974) and State v. Adams, 302 So.2d 599 (La.1974).

Assignments 3 and 7: These assignments complain that the arrest of the accused at his home on November 1 was illegal, since without a warrant, and that therefore the products of it (incriminating statements, physical evidence, and investigative leads) should be excluded. Aside from other demerits, the argument overlooks that a peace officer may arrest a suspect without a warrant if he “has reasonable cause to believe that the person to be arrested has committed an offense although not in the presence of the officer.” La.C.Cr.P. art. 213(3). The accused’s use of a credit card stolen in the robbery an hour earlier entitled the detectives to a reasonable belief that he was involved as a principal or accessory in the robbery. Based on such reasonable cause, the war-rantless arrest by the officers was legal. See State v. Johnson, 255 La. 314, 230 So. 2d 825 (1970).

Assignment 4: The motion for a directed verdict and/or a mistrial was properly denied. The action was based on the theory that the evidence showed a robbery by Smith, the defendant’s companion in the robbery according to witness identification (Smith pleaded guilty), in which the accused himself did not participate.

The defendant does not contend that the evidence as to Smith’s participation and subsequent actions in hiding the weapons and proceeds was inadmissible if he was a principal, La.R.S. 14:24, along with the accused. His motion is based solely upon his argument that the evidence shows that Smith and a third person committed the robbery (and that, allegedly, the accused innocently received the stolen credit card from Smith after the robbery).

Based on these factual grounds, the motion is plainly without merit. There was more than some evidence, including eyewitness identification of the accused Scott as a principal in the robbery itself, of the defendant’s guilt of the offense. See State v. Douglas, 278 So.2d 485 (La.1973).

Assignment 6: The defendant contends that the state improperly introduced evidence in rebuttal. In rebuttal, the state proved an oral confession made by the defendant to a detective at the time of the line-up on November 6, five days after his arrest.

He particularly complains of the trial court’s refusal to permit him to take the stand after the state’s rebuttal testimony in order to counter this new evidence.

During the defendant’s case in chief, he had taken the stand and had explained his version of how he came into possession of the stolen credit card. On cross-examination as a predicate for introducing the present confession, he was asked if he had made the statement later introduced in rebuttal at the time and place to the detective. La.R.S. 15 -.493.

Before the confession was introduced on rebuttal, a predicate was laid outside the presence of the jury to establish its volun-tariness or not, with the defendant permitted to testify as to alleged coercion. La.R.S. 15:451. Tr. 302-307. The trial judge then ruled that the confession was admissible.

Nevertheless, when the jury was recalled and the state presented its predicate for the voluntariness of the confession, the trial judge permitted the defendant to testify before the jury that the confession was coerced and involuntary, the sole evidence he had introduced in traversing the predicate outside the presence of the jury. Tr. 308.

No authority is cited that the procedure utilized is contrary to law. See: La.R.S. 15:282; State v. Kaufman, 211 La. 337, 30 So.2d 337 (1947). The state elected to introduce the confession in rebuttal, as a prior inconsistent statement, instead of in its case in chief. Any prejudice the defendant may have thereby sustained is dispelled by the action of the trial court in permitting the accused to testify before the jury, as part of the predicate, as to his defense of involuntariness; he was thus not deprived of jury-evaluation of the weight of the confession in the light of evidence of involuntariness introduced on his behalf.

The assignment presents no reversible merit.

Assignment 7: This presents a factual issue as to the voluntary nature of the inculpatory statements of November 1 and of the confession of November 6. The trial court’s per curiam correctly analyzes the evidence as showing no coercion. The trial court’s factual determination as to voluntariness of a confession will not be disturbed on appeal unless clearly erroneous. State v. Diles, 316 So.2d 396 (La.1975); State v. Vessel, 260 La. 301, 256 So.2d 96 (1972).

Assignment 8: The defendant’s counsel objected to a question by which the defendant was asked whether a previous witness, a police officer, was lying as to a particular matter. Normally, this type of question is not permissible as an argumentative question unfairly requesting an opinion of one witness as to the credibility of another and as invading the function of the jury. McCormick on Evidence, Section 7 (2d ed., 1972); 98 C.J.S. “Witnesses” § 411, p. 213. Even in the present case, its propriety is doubtful. However, as stated by the trial court in its per cur-iam, the accused previously had freely admitted to lying on several occasions and had rather freely accused other witnesses of lying. Within the limited and peculiar context of the accused s testimony, the use of this question on this occasion does not present reversible error.

Decree

Finding no reversible error, we affirm the conviction and sentence.

Affirmed.

SUMMERS, J., concurs.

      . In concurring to the court’s opinion on original hearing in State v. Babin, La., 319 So.2d 367, the writer noted scholarly criticism of this jurisprudence and suggested it should be re-evaluated.


author: CALOGERO, Justice.

text:
    Charles Sheffield BROWN v. PLAQUEMINES PARISH BOARD OF SUPERVISORS OF ELECTIONS et al.
    No. 57019.
    Supreme Court of Louisiana.
    Oct. 21, 1975.
    Rehearing Denied Oct. 27, 1975.
    Luke A. Petrovich, Buras, for plaintiff-respondent.
    Leander H. Perez, Jr., Dist. Atty., Gilbert V. Andry, III, Asst. Dist. Atty., for Parishes of Plaquemines and St. Bernard, defendant-relator.
    William L. Taylor, Taylor, Baumann & Rea, Baton Rouge, for amicus curiae.
   CALOGERO, Justice.

The Plaquemines Parish Board of Supervisors of Elections, composed of Samuel C. Pizzolato, Rev. Joseph N. Taylor and Roy Lyons, met on October 4, 1975, in conformity with R.S. 18:400 as amended by Act 1 of 1975, to select commissioners for the Primary Election to be held on November 1, 1975.

The three local Democratic candidates for the 105th Representative District had each submitted lists of proposed commissioners. Although there were no local Republican candidates running for office, a separate list of prospective commissioners had been submitted for Lance A. Britton, a non-local candidate (for Lt. Governor) by Paul J. Chapetta, Chairman of the Pla-quemines Parish Republican Executive Committee.

When the Board met they combined the proposed Democratic commissioners submitted by the local Democratic candidates and the proposed Republican commissioners submitted by Mr. Chapetta for Mr. Britton, from which they drew the commissioners to serve on November 1, 1975. In selecting the commissioners, they were especially cognizant of the provision of R. S. 18:400(D), that the Republican party “shall be entitled to be represented by at least one commissioner in each voting precinct.”

Thereafter one Charles Sheffield Brown, a Democratic candidate for state representative from the 105th Representative District filed a lawsuit against defendants, seeking to enjoin them from issuing commissions to the poll commissioners who had been selected on October 4th, and seeking to have defendants ordered to re-select commissioners from only those lists submitted by the three Democratic House candidates.

The district court issued a temporary restraining order and after a hearing on Friday, October 10, 1975, issued a preliminary injunction and mandamus as prayed for.

The defendants filed a motion for a sus-pensive appeal which was denied. They thereupon applied for writs of certiorari and prohibition to the Fourth Circuit Court of Appeal. Their application was denied by a divided court.

Defendants then sought writs from this Court which were granted on Friday, October 17, 1975.

The case was specially fixed for oral argument on Monday, October 20, 1975.

The issue involved in this case is whether the district court erred in its interpretation of R.S. 18:400, as amended by Act 1 of 1975.

The question presented is whether the Board’s selection of commissioners, including Republicans, was in violation of statutory law.

The Legislature, in its 1975 regular session, revised the laws governing elections in the State of Louisiana. La.R.S. 18:400 now provides for the submission and selection of commissioners in primary elections, i. e., the first of two successive elections now provided for by law.

La.R.S. 18:400(A) provides that each local candidate in any parish may submit a list of proposed commissioners and provides a time frame in which those lists are to be submitted. La.R.S. 18:400(B) sets forth the number of proposed commissioners which a candidate may submit. La.R. S. 18:400(C) establishes the day on which the respective Boards of Supervisors shall meet and the manner in which commissioners shall be selected. La.R.S. 18:400(D) provides that in every primary election each political party having one or more candidates for office shall be entitled to be represented by at least one commissioner in each voting precinct, where such a candidate or candidates are to be voted upon. La.R.S. 18:400(E) provides for the situation where there are state and/or district but no local offices at stake in the election, in such event permitting state and/or district office candidates to submit commissioners.

The district court held that La.R.S. 18:400(E)’s provision allowing non-local candidates to submit commissioners was inapplicable because there are in the November 1 election local offices to be voted upon. Thus, the non-local Republican candidate Britton, was barred from submitting commissioners, and the Board directed to select commissioners without the inclusion therein of Republican commissioners.

Basically, under the statute, if in a primary there are local offices to be nominated, local candidates alone are permitted to submit lists of proposed commissioners.

If in any primary held to nominate candidates for state and/or district offices there should be no local office(s) to be nominated at the same time, the respective candidates for the state and/or district offices are permitted to submit lists of proposed commissioners. R.S. 18:400(E).

Consequently, where, as in the case at hand, a primary is being held to nominate state/district offices (non-local candidates being the contestants) and local offices, and there are no local candidates affiliated with the same political party with which a given state/district candidate is affiliated (the present plight of Mr. Britton), there is no specifically applicable provision of R.S. 18:384-423 (Act 1 of 1975) prescribing that the state/district candidate may submit commissioners.

However, there is a very clear provision in the statute designed to assure poll commissioner representation for each political party having a state/district candidate, such as the Republican Party in this instance, the result of which is to afford party representation in each polling place. That section, R.S. 18 ¡400(D) provides

“D. Notwithstanding any provisions of this Part to the contrary, in every primary election held under the provisions of this Part each political party having one or more candidates for office shall be entitled to be represented by at least one commissioner in each voting precinct where such a candidate or candidates are to be voted upon in the manner hereinafter provided.
“In the event that two or more political parties each have a candidate or candidates whose name appears on the ballot in that precinct and if during the drawing of the commissioners at least one of the commissioners does not represent each of the political parties, then the person selected by the board of supervisors to draw the balls from the wheel or receptacle shall dispose of the same number of balls that there are political parties to be represented, beginning with the last ball drawn which represents a political party for which a commissioner has already been selected. The person shall then draw another ball to replace the last such ball and continue such action until a commissioner is selected to fulfill the requirements hereof. The person shall continue the selection until each political party is represented by at least one commissioner.” (Emphasis provided)

The statute does not provide the method for submission of the one commissioner per precinct (to which the political party, even with only non-local candidates is entitled). Nonetheless, it would in our view be both illogical and contrary to the clear provision of R.S. 18:400(D), to conclude thereby that such party shall be denied the commissioners to which the statute unequivocally states they are entitled.

Several other provisions of Act 1 of 1975 support the result which we have reached here. With respect to 18:400(D) which, as we earlier indicated, mandates that each political party having one or more candidates for office shall be entitled to be represented by at least one commissioner in each voting precinct, the second paragraph thereof (see above) specifies how in drawing the balls from the wheel or receptacle, the Board of Supervisors of Elections shall proceed so as to be certain that each of the political parties having a candidate on the ballot, shall have a commissioner chosen from the wheel. The necessary inference, of course, is that the Board of Supervisors of Elections shall have taken prior action to see that there was placed in the wheel commissioners representing each of the political parties.

Then, too, there is the general authority of the Board of Supervisors of Elections with respect to the selection of commissioners. R.S. 18:399 provides that “the primary election shall be conducted at each polling precinct by five commissioners who shall be commissioned in each parish by the board of supervisors of elections. . . ."

Furthermore the Board of Supervisors of Elections is specifically empowered to supply the names of additional proposed commissioners when necessary to bring the number of proposed commissioners to five in each precinct, whether there are local offices to be filled (see R.S. 18:400(B), last sentence) or there are not local offices to be filled (see R.S. 18:400(E), last sentence) .

There should therefore be corollary authority in the Board of Supervisors of Elections to supply names of proposed commissioners for a political party having “one or more candidates for office” (R.S. 18:400(D)) but no local candidate, under both their general authority and obligation to select commissioners, R.S. 18:399, and their obligation to have each party with one or more candidates for office represented by one commissioner in each precinct (R.S. 18:400(D)).

The absence from the statute of the specific procedure the Board should follow, where there are local offices at stake and only non-local candidates of a given party, to comply with R.S. 18:400(D)’s requirement that each political party “shall be entitled to be represented by at least one commissioner in each voting precinct” is insufficient reason to permit circumvention of the otherwise clear and directly applicable provisions hereinabove discussed, requiring representation at the polls by each political party, at least when a political party has submitted proposed commissioners.

In the case at hand the Board of Supervisors of Elections respected the statute’s requirement by including in the proposed commissioners from which the commissioners to serve were drawn a list of proposed Republican Commissioners (those submitted by the Chairman of the Plaquemines Parish Republican Executive Committee on behalf of the non-local Republican candidate) .

It is unnecessary for us to decide in this case whether the Board was bound to use the Republican commissioners proposed on behalf of Mr. Britton. We do believe, however, that the Board’s use of these proposed Republican commissioners was a reasonable implementation of the statutory requirement that Mr. Britton’s Republican party be afforded representation by “at least one commissioner in each voting precinct”. Consequently, the district court should not have enjoined the Board and mandated a re-selection of commissioners.

Act 1 of 1975 adopts a new open election system by which separate party primaries have been done away with. R.S. 18:400(D) was obviously included in the Act so as to guarantee representation of each political party at the polls and, hopefully to insure each candidate and each political party an opportunity for some measure of protection against election irregularity.

The construction which we place on the statute is not only what we consider to be the proper, logical and correct one, but also that which serves the unmistakable intent and purpose of the legislation.

For the foregoing reasons the judgment of the district court is reversed, and plaintiff’s suit dismissed at his cost.

      . R.S. 18:384 Definitions
      “When used in this Part:

      (2) ‘Local candidates’ means and includes (a) candidates for membership in either house of the legislature and (b) candidates for any parish, ward or municipal office, except those for justice of the peace or constable.
      (3) ‘Non-local candidates’ means all candidates who are not ‘local candidates.’

      . Counsel for plaintiff has a contrary view. He says that the statute does not mandate commissioner representation because the statute says only that the political party “shall be entitled to be represented by” rather than “shall be represented by.” Additionally he says that “in the manner hereinafter provided” restricts the party’s entitlement, to circumstances set forth in the statute, i. e., where a given party has local candidates in an election involving local offices. For reasons more fully developed elsewhere in this opinion we disagree with counsel’s not entirely implausible argument.

      . When Senate Bill # 274 (later Act 1 of 1975) passed the Senate the present subsection D was not included. The present subsections A, B, C, E, P apparently had been copied largely from existing primary election law in which there were candidates affiliated only with the party conducting the primary. Subsection D was inserted as an amendment (amendment #48) by the House Committee on House and Governmental Affairs. It was adopted to provide representation at the polls for candidates of all political parties. “ . Other amendments adopted by the committee included: (1) An amendment offered by Mr. Freeman on behalf of Mr. Lancaster to provide that each political party having one or more candidates for office in any primary shall he entitled to at least one commissioner in each voting precinct where such candidate (s) is voted on. ” 5/28/75 supplement to committee report, Committee on House and Governmental Affairs, Vernon J. Gregson, Chairman, relative to Senate Bill #274.


text:
    Lawrence W. HEASLIP, Jr. v. John S. TREEN et al.
    No. 56857.
    Supreme Court of Louisiana.
    Sept. 16, 1975.
   In re: Lawrence W. Heaslip, Jr. applying for Writ of Certiorari. 318 So.2d 95.

Writ denied. The result is correct.


text:
    Raymond A. MIX v. John M. BLANCHARD.
    No. 56873.
    Supreme Court of Louisiana.
    Sept. 18, 1975.
   In re: John M. Blanchard and Orleans Parish Democratic Executive Committee auulying for Writ of Certiorari and/or Review. 318 A.2d 25.

Writ denied. On the facts found by the Court of Appeal, there is no error in the judgment complained of.

DIXON, J., dissents from the denial, believing the court of appeal is in error.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., et al. v. SIMONI, HECK AND ASSOCIATES et al.
    No. 56673.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: State of Louisiana, ex rel William J. Guste, Jr., et al., applying for cer-tiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 314 So.2d 477.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. Nolan DAUZAT, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56692.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Nolan Dauzat, Jr. applying for Remedial Writs and Habeas Corpus.

Writ granted. A hearing is ordered for trial judge to determine when the effective date of relator’s sentence is to begin.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Inez BRADY et al., and Larry Wiley et al.
    No. 56698.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: State of Louisiana applying for appeal, etc.

Writ granted. Ruling of trial judge set aside; evidentiary hearing on motion to suppress the evidence is ordered. Application was timely filed by mail.

SUMMERS, J.,

I agree that there is merit in this application. However, I have doubts that this Court should order this hearing without giving the trial judge an opportunity to be heard in this Court.


text:
    Dolores Weathers Breaux, wife of/and Irvin BREAUX, Sr. v. The STATE of Louisiana et al.
    No. 56707.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: The State of Louisiana through William J. Guste, Jr., Attorney General, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 314 So.2d 449.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. Mervin PAYNE v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56711.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Mervin Payne applying for Writs of Certiorari, Mandamus, Review, Prohibition and Habeas Corpus.

Writ denied in part: Neither the allegations of the petition nor the trial record itself, Docket ■# 53,037, demonstrate ineffective trial counsel, nor that the choice of trial strategy fell below the required level of competency for an appointed trial counsel.

Writ granted in part. Considering the prayer for all relief and the record, a second appeal is ordered and the trial court is requested to appoint counsel to perfect the bills or assignments of error.


text:
    Oscar Ray TILLMAN v. HARTFORD ACCIDENT & INDEMNITY CO. and Baton Rouge Printing Company, Inc.
    No. 56674.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Oscar Ray Tillman applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 507.

Writ denied. On the facts found by the Court of Appeal, there is no error of law.


text:
    VANGRAFF, INC. v. Madge S. McCEARLEY.
    No. 56676.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Madge S. McCearley applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 483.

Application denied. The result is correct.


text:
    STATE of Louisiana v. George M. WYLIE.
    No. 56680.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: George M. Wylie applying for writ of review or certiorari.

Writ denied. The ruling of the trial judge is correct.


author: TATE, J.,

text:
    Roy C. WOOD, Jr. v. GIBSON CONSTRUCTION CO., INC.
    No. 56681.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Roy C. Wood, Jr. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Cad-do. 313 So.2d 898.

Writ refused. On the facts found, the result is correct.

SUMMERS, J., is of the opinion the writ should be granted.

TATE, J.,

concurs in the denial. He is of the view that landowner subjected to a burdensome use of a servitude over his property is entitled as of right to injunc-tive relief to protect his property interest and believes that under the facts found by the trial court, such injunction should have issued. However, he accedes to the view of the court in denying the writ that under the facts found by the court of appeal no burdensome use now exists and that this court does not ordinarily issue writs to review factual determinations.

BOLIN, J., takes no part.


text:
    STATE of Louisiana ex rel. Hewitt MOIEX v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56683.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Hewitt Moiex applying for writ of habeas corpus.

Writ denied. The ruling of the trial judge is correct.

DIXON, J., is of the opinion an out-of-time appeal should be ordered.

CALOGERO, J., dissents from the denial.


text:
    STATE of Louisiana ex rel. Herbert J. SENEGAL v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56684.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Herbert J. Senegal, applying for writ of habeas corpus.

Writ denied. The trial errors complained of are not a proper basis for post-conviction relief.


text:
    STATE of Louisiana ex rel. Samuel Lee STARKS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56685.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Samuel Lee Starks applying for writ of certiorari, mandamus, habeas corpus and prohibition.

Application denied. The allegations and argument do not warrant the relief sought.


text:
    Luther BENOIT v. ACADIA FUEL AND OIL DISTRIBUTORS, INC., et al.
    No. 56688.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Estate of William J. Cleveland applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Acadia. 315 So.2d 842.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


author: DIXON, TATE and CALOGERO, JJ„

text:
    STATE of Louisiana v. Marion Bernard COLTER.
    No. 56689.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Marion Bernard Colter, applying for writs of certiorari, prohibition and mandamus.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.

DIXON, TATE and CALOGERO, JJ„

concur in the denial for the reason that the record before us does not reflect that defendant objected to the introduction of the illegally seized evidence on constitutional grounds.


text:
    Dalton HODGES v. Murray DECOTEAU.
    No. 56695.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Dalton Hodges applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 500.

Writ denied. No error of law in the judgment of the court of appeal.


text:
    Russell L. JACKSON v. James ZITO.
    No. 56697.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: James Zito, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 401.

Writ refused. Since the case has been remanded, the judgment is not final.

SUMMERS, J.,

is of the opinion the writ should be granted for the reasons that the question is of widespread interest and because, in my view, the judgment of the Court of Appeal to the effect that prescription of ten years is applicable to this malpractice suit is erroneous.

CALOGERO, J., would grant this writ.


text:
    John G. SWIDER v. Mrs. John G. SWIDER.
    No. 56699.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: John G. Swider applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 314 So.2d 372.

Writ denied. On the facts found by the court of appeal, there is no error of law.


text:
    Bill TERRY, Jr. v. Robert Randolph RICHMOND.
    No. 56702.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Bill Terry, Jr. applying for cer-tiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 314 So.2d 375.

Writ denied. No error of law.

SUMMERS, J., is of the opinion the writ should be granted for the reasons assigned by the district judge.


text:
    STATE of Louisiana ex rel. Archie Lee WILLIAMS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56704.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Archie Lee Williams applying for writ of habeas corpus.

Application denied. The allegations of the petition do not warrant the relief demanded.


text:
    HIGHLANDS INSURANCE COMPANY v. PERCY INSURANCE AGENCY, INC., et al. The CHARLES W. HOGG COMPANY v. HIGHLANDS INSURANCE COMPANY.
    No. 56708.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Highlands Insurance Company applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 313 So.2d 345.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    STATE of Louisiana ex rel. Anthony HATHAWAY v. Elayn HUNT, Director, Louisiana Department of Correction and C. Murray Henderson, Warden, Louisiana State Penitentiary.
    No. 56710.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Anthony Hathaway, applying for writ of certiorari and habeas corpus.

Writ denied. In absence of concurrent sentencing, the relator wasn’t entitled to credit against his subsequent State term for the time spent in Federal custody.


text:
    WILLS WOOD PLANTATION, INC. v. Clarence P. FORET.
    No. 56713.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Clarence P. Foret applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 314 So.2d 409.

Writ denied. The judgment of the court of appeal is correct.


text:
    Russell L. JACKSON v. James ZITO.
    No. 56715.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Russell L. Jackson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of E. Baton Rouge. 314 So.2d 401.

Writ refused. Since the case has been remanded, the judgment is not final.

SUMMERS, J.,

is of the opinion this writ should be granted for the reasons that the question involved is of widespread interest and because, in my view, the judgment of the Court of Appeal to the effect that the prescription of ten years is applicable to this malpractice suit is erroneous.

CALOGERO, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. John R. SIMPSON.
    No. 56875.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: John R. Simpson applying for writ of certiorari, mandamus and review.

Writ denied. On the facts alleged there is no showing to warrant the exercise of this Court’s supervisory jurisdiction. La. Code Crim.Proc. art. 230.1.


text:
    STATE of Louisiana ex rel. Leroy WHITE v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56712.
    Supreme Court of Louisiana.
    Sept. 29, 1975.
   In re: Leroy White applying for writ of certiorari and habeas corpus.

Writ denied. The showing made does not warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana v. Tim BURK.
    No. 56970.
    Supreme Court of Louisiana.
    Oct. 3, 1975.
   In re: Tim Burk applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. The showing made, does not warrant the exercise of our supervisory jurisdiction. See C.Cr.Pr. art. 230.1.


text:
    Joseph N. TRAIGLE, Collector of Revenue, Department of Revenue, State of Louisiana v. P. P. G. INDUSTRIES, INC.
    No. 56788.
    Supreme Court of Louisiana.
    Oct. 10, 1975.
   In re: Joseph N. Traigle applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 315 So.2d 859.

Writ not considered: In docket # 56,789, La., 317 So.2d 625, we remanded for the court of appeal to decide by rehearing before a five judge panel. The present application does not indicate that such rehearing has been held, so the application is premature. In any subsequent timely application, the petitioner may incorporate the allegations and exhibits of the present application.


text:
    Pauline Andrepont SAVOIE et al., Plaintiffs-Respondents, v. Terry V. BILLS, Jr., et al., Defendants-Applicants.
    No. 56848.
    Supreme Court of Louisiana.
    Oct. 16, 1975.
   JOINT MOTION AND ORDER TO DISMISS

On joint motion of the Applicants, Brown and McKenzie, Inc., Goldking Production Company and Terry V. Bills, Jr., and of Respondents, Pauline Andrepont Savoie, Elgie Mae Savoie LaFleur and Patricia Ann Savoie Oubre, in the above numbered proceeding, appearing herein through undersigned counsel, and on suggesting to the Court that the above numbered and entitled cause has been fully settled and compromised; and

On further suggesting to the Court that Movers desire that the Writs of Certiorari and Review applied for by Applicants Brown and McKenzie, Inc., Goldking Production Company and Terry V. Bills, Jr. be dismissed,

Ordered by the Court that the writs of certiorari and review applied for by Applicants Brown and McKenzie, Inc., Goldking Production Company and Terry V. Bills, Jr. be, and they are hereby, dismissed. 317 So.2d 249.


text:
    Mrs. Patsy W. TEMPLE, Individually, et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 56803.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Patsy W. Temple, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 316 So.2d 783.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. George WYATT.
    No. 56837.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: State of Louisiana through the District Attorney, Harry F. Connick, Parish of Orleans, applying for Writs of Cer-tiorari, Mandamus and Prohibition.

Writ granted. (See Order).

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 Oliver P. Schulingkamp, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of November, 1975, 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 the 23rd day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Glynn J. JONES.
    No. 56847.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Harry F. Connick, District Attorney, Parish of Orleans, applying for writ of certiorari or review.

Writ granted. (See Order)

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 Rudolph F. Becker, III, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana or before the 3rd day of November, 1975, 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 the 23rd day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Mrs. Patsy W. TEMPLE, Ind., etc., et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 56928.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Liberty Mutual Ins. Co., Electric Delivery System, Inc. and George A. Kuntz, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 316 So.2d 783.

It is ordered that the writ of review issue ; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. William DOYLE v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, and Hon. Israel Augustine, Judge, etc.
    No. 56693.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: William Doyle applying for Writs of Habeas Corpus, Certiorari, Mandamus and Prohibition.

Writ denied. The trial court has signed an order making the appeal returnable on October 24, 1975, and has informed the judicial administrator that relator’s counsel and relator will be informed for assignments of error to be made.


text:
    STATE of Louisiana ex rel. Warren George AHRENS pro se v. Elayn HUNT.
    No. 56737.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Warren George Ahrens, applying for writ of mandamus and/or remedial writs.

Denied. The application is now moot as trial judge has acted in accordance with the application.


text:
    CITY OF SHREVEPORT v. Norman SPEER.
    No. 56796.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Norman Speer applying for Writs of Certiorari, Review, Mandamus and Prohibition.

Writ denied. Applicant has an adequate remedy for review in the event of conviction.

DIXON, J., is of the opinion the ordinance in question is unconstitutionally vague and will not support a conviction, and that the writ should be granted.


text:
    STATE of Louisiana v. Daniel R. CLEVELAND.
    No. 56797.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: State of Louisiana through the District Attorney, John A. Richardson applying for Writs of Certiorari, Mandamus and Prohibition.

Writ denied. The ruling of the trial court is correct.


text:
    STATE of Louisiana v. James Delmar DEATON.
    No. 56799.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: James Delmar Deaton, applying for writs of certiorari, prohibition, mandamus and for Stay Order.

Writ refused. Inasmuch as the relator is now being held for extradition under a warrant issued by the Governor of Louisiana, this application is moot.


text:
    CITY STORES COMPANY (MAISON BLANCHE DIVISION) v. GERVAIS F. FAVROT CO., INC.
    No. 56800.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: City Stores Company (Maison Blanche Division) applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 315 So.2d 370.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    STATE of Louisiana v. Gary TYLER.
    No. 56816.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Gary Taylor applying for writ of certiorari.

Writ denied. The ruling is correct.


text:
    MURPHY OIL CORPORATION v. Cosme GONZALES.
    No. 56817.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Cosme Gonzales applying for cer-tiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 316 So.2d 175.

Writ refused. Under the facts found by the court of appeal, the result is correct.


text:
    Lee A. COVINGTON v. REX PAINTING INC., and State Automobile and Casualty Underwriters.
    No. 56818.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Lee A. Covington applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 315 So.2d 368.

Application denied. There is no error of law in the judgment of the Court of Appeal.


text:
    Alton D. WHITT v. Estelle Mae VAUTHIER, his wife.
    No. 56822.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Alton D. Whitt applying for cer-tiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 316 So.2d 202.

Writ refused. On the facts found by the Court of Appeal, the result is correct.

CALOGERO, J., dissents.


text:
    John R. NEYREY v. Vincent J. CAVALLINO.
    No. 56823.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: John R. Neyrey applying for cer-tiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 316 So.2d 866.

Writ denied. The showing made does not warrant the relief prayed for.


text:
    Charles W. BARBER et al. v. BOOKS, ETC., INC. and Abraham Krushevski. AMERICAN EMPLOYERS INS. CO. v. Abraham KRUSHEVSKI and Books, Etc., Inc.
    No. 56824.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Charles W. Barber, Eldon Harvey, III, Mary Lou Shoppe, Inc. and American Employers Ins. Co., applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 316 So.2d 154.

Writ denied. There is no error of law and result is correct.

TATE, J.,

concurs: I can concur because the Court of Appeal judgment can be construed as holding that, more probably than not, the cause of the fire was the act of third persons (the children) and not any fault of the land-occupier. Therefore, we do not reach the issue of the liability to the neighbor for damages resulting from a fire which starts on one’s land and spreads to his neighbor’s. See Civil Code Arts. 667 ff, 2315, 2317.


text:
    CARLO DITTA, INC. v. PARISH OF JEFFERSON.
    No. 56825.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Parish of Jefferson applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 315So.2d361.

Writ denied. We cannot say the result is incorrect under the facts found by the Court of Appeal.

MARCUS, J., is of the opinion that the writ should be granted.


text:
    CARLO DITTA, INC. v. The PARISH OF JEFFERSON.
    No. 56826.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Mr. and Mrs. Fred Thoede and Mr. Andrew Karst applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 315 So.2d 361.

Writ denied. We cannot say the result is incorrect under the facts found by the Court of Appeal.

MARCUS, J., is of the opinion that the writ should be granted.


text:
    Allen ENNIS v. PLANT SERVICE CONSTRUCTION CO. and Employers National Insurance Company.
    No. 56833.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Allen Ennis applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Charles. 316 So.2d 168.

Not considered. Application . not timely filed.

TATE, J.,

concurs. The postmark (Sept. 5th) shows that this application was mailed on the 31st day after rehearing was denied on August 5th.


author: DIXON, J.,

text:
    Vincent A. BENINATE v. Charles K. BODENGER.
    No. 56831.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Vincent A. Beninate, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 315 So.2d 372.

Writ refused. On the facts found by the Court of Appeal, the result is correct.

DIXON, J.,

dissents from the denial; the Court of Appeal opinion and the application leaves serious doubt about the accuracy of the conclusion that plaintiff never had the right to possess by virtue of actual physical adverse possession for more than one year.

CALOGERO, J., dissents.


text:
    Anna Shirley Burglass DeSalvo DUNKER v. Ed WOOD et al.
    No. 56827.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Anna Burglass DeSalvo Dunker applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 315 So.2d 783.

Application denied. On the facts found by the court of appeal there is no error in its judgment.


text:
    Reverend Morris BURRELL and wife v. SEGUROS AMERICA BANAMEX, S.A.
    No. 56834.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Seguros America Banamex, S.A. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 316 So.2d 177.

Writ denied. No error of law.


text:
    LOUISIANA HOSPITAL SERVICE, INC. v. Peggy BOOKTER and the Administrator of the Department of Employment Security of the State of Louisiana.
    No. 56835.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Louisiana Health Service and Indemnity Co. applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 317 So.2d 282.

Application denied. There is no error of law in the judgment of the Court of Appeal.


text:
    Sam CULOTTA v. POLICE JURY OF ASCENSION PARISH.
    No. 56838.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Sam Culotta applying for certio-rari or writ of review to the Court of Appeal, First Circuit, Parish of Ascension. 316 So.2d 463.

Writ refused. On the facts found by the court of appeal, since the court found that plaintiff gave his consent to the construction of the canal on his property, the result is correct.


text:
    STATE of Louisiana ex rel. Robert DORSEY and Johnny Brooks v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56841.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Robert Dorsey and Johnny Brooks, applying for Writ of Habeas Corpus.

Writ refused. The contentions raised were either disposed of in the review of the original trial, waived by not having been raised therein, or are shown to be without merit by the record in such appeal. State v. Brooks and Dorsey, 294 So.2d 503 (La.1974).


text:
    STATE of Louisiana ex rel. Harwood E. LOWE v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 56842.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Harwood E. Lowe applying for Writs of Habeas Corpus, Mandamus, Cer-tiorari, Prohibition and other Remedial Writs.

Writ denied. Pretermitting whether the procedural defects complained of can be the basis of post-conviction relief, the contentions raised are clearly without merit for the reasons assigned by the trial court’s judgment of November 16, 1973.


text:
    STATE of Louisiana v. Leonard Stanley MYRES.
    No. 56846.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Leonard Stanley Myres applying for Supervisory Writ.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    Lionel BORDEN et ux. v. UNITED STATES FIDELITY & GUARANTY COMPANY.
    No. 56844.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Lionel Borden and Eldora B. Borden applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of Washington. 316 So.2d 413.

Writ denied. The result is correct.


author: CALOGERO, J.,

text:
    STATE of Louisiana ex rei. Richard James PEOPLES v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56843.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Richard James Peoples, applying for writs of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Application denied. The documents attached to the application show that applicant is not entitled to the relief here demanded.

CALOGERO, J.,

dissents, believing applicant is entitled to an evidentiary hearing, particularly in light of the documents attached to his application.


text:
    Ellis WILLIAMS v. DEPARTMENT OF CORRECTIONS, LTI-BATON ROUGE, State of Louisiana.
    No. 56849.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Ellis Williams applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Civil Service Commission. 316 So.2d 411.

Writ denied. The judgment is correct.


text:
    Aaron M. BLACKWELL, Jr. v. Thomas DAIGLE, Sr., et al.
    No. 56850.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Allstate Insurance Co. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Lafayette. 317 So.2d 18.

Writ denied. No error of law.


text:
    STATE of Louisiana ex rel. Joe Nathan GOOD v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56853.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Joe Nathan Good applying for Supervisory Writs.

Application denied. The ruling of the trial judge after the evidentiary hearing is correct.


text:
    CITY OF LAFAYETTE v. MARKS CONSTRUCTION CO., INC.
    No. 56855.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Marks Construction Co. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Lafayette. 317 So.2d 232.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment of the Court of Appeal.

MARCUS, J., is of the opinion that the writ should be granted.


text:
    STATE of Louisiana v. Joseph B. LOUPE.
    No. 56856.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Joseph B. Loupe applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ refused. The showing made is insufficient to warrant the exercise of our supervisory jurisdiction. See LSA-C.Cr.P. art. 708, comments (b).

DIXON, J., is of the opinion that the long “recess” violates the clear intent of the code requirements that the State must try misdemeanors within one year.


text:
    STATE of Louisiana ex rel. Frank L. GEORGE v. Elayn HUNT, Director, Department of Corrections et al.
    No. 56819.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: Elayn Hunt, Director, Department of Corrections, Et Al, applying for writs of certiorari, mandamus and prohibition.

Writ granted. (See Order)

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 Donovan W. Parker, Judge of the 19th Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of November, 1975, 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 the 23rd day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. David HARTSELL.
    No. 56859.
    Supreme Court of Louisiana.
    Oct. 17, 1975.
   In re: David Hartsell applying for Writs of Certiorari, Prohibition and Mandamus.

Writ denied. This court does not ordinarily review interlocutory rulings where the applicant has an adequate remedy by review in the event of conviction.


author: REDMANN, Judge.

text:
    Miles J. BURAS v. SUCCESSION of John Baptiste BURAS and Pierre Leon Buras.
    No. 7275.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Miles J. Buras, in Pro. Per.
    Before SAMUEL, REDMANN and LEMMON, JJ.
   REDMANN, Judge.

This court on its own motion, after a routine preliminary examination of the record, dismisses this appeal. Considering the appeal as an application for relief under out supervisory jurisdiction, we conclude that the ruling complained of is correct.

The appeal is from a trial court’s refusal of an ex parte order to declare null and void two successions (the proceedings?) and any related land transactions. The simple refusal to sign an order ex parte, on the grounds that the matter is one which must be contested with other interested parties having an opportunity to be heard, is an interlocutory order, which is not appealable unless the order “may cause irreparable injury,’’ C.C.P. 2083.

As an application for writs of review, the “appeal” does not show any error by the trial court. Applicant’s notion that only his individual rights are at stake is erroneous. There may be a question whether applicant has any rights, that is, whether he is in fact an heir or perhaps an impostor. Certainly whoever paid to have the succession proceedings handled in the past has an equal right to be heard by the court before the work they paid for should be annulled.

The appeal is dismissed.


author: SCHOTT, Judge. LEMMON, Judge

text:
    Luther CHISM, Jr. v. KAISER ALUMINUM & CHEMICAL CORPORATION.
    No. 7082.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Writ Granted Dec. 19, 1975.
    Orlando G. Bendana, New Orleans, for plainti f f-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendant-appellee.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment dismissing his claim for Workmen’s Compensation benefits. In February, 1974, he was surgically treated for a herniated disc by removal of the disc and a fusion, and was left totally and permanently disabled.

Plaintiff alleged that his condition resulted from on the job accidents occurring on June 8 and October 12, 1973, and February 7, 1974, by which an underlying back condition was aggravated or exacerbated. Defendant denied any occupational accident and the issue is whether plaintiff’s disability was caused by a work related accident and is therefore compensable pursuant to LSA-R.S. 23:1031.

The evidence consisted of the testimony of plaintiff and Dr. Charles W. Krieger, Jr., along with documentary evidence consisting of medical reports and defendant’s clinic and accident records.

Plaintiff testified that he had worked for defendant since 1968, doing heavy manual labor involving stooping and the lifting of heavy weights. On June 8, 1973, he stepped in a hole while on the job and sought medical treatment at the company first aid station for back pain. There he was given a course of heat treatments until June 20. In October, while raking grounds from a pot he suffered pain, again sought initial treatment at the first aid station and then consulted his family physician, Dr. J. L. Roberts, who hospitalized him for treatment. On February 7, while raking grounds from a pot, he again experienced pain and again sought treatment at the first aid station where he was referred to the company physician. Thereafter he again consulted his family physician. After a day or two of reporting for work and going to the first aid station his pain got so bad that he was hospitalized on February 10.

Defendant’s records contain a report of the June accident and a record of the heat treatments administered at the first aid station until June 20. There is no report as such for either of the other accidents, but an entry of November 1, 1973, is to the effect that he has missed 19 days of work because of kidney and back trouble, that he was hospitalized for six days and that he could return to light duty for the following 10 days in accordance with the recommendation of Dr. Roberts. There are entries showing that heat treatments were administered at defendant’s clinic throughout the month of November and that plaintiff was to be seen by Dr. Irving Redler on November 14 and 26. These records show that on February 7, 1974, plaintiff complained of increased pain in his back, requested and was refused light duty and was administered a heat treatment. On February 8 he again complained of pain and was sent to defendant’s physician. A report from Dr. R. A. Faust to deefndant diagnoses no findings of new or recurrence of old injury but only a possible mild irritation of the muscles. Limited work was recommended for three days.

Dr. Irving Redler reported that he examined plaintiff on November 14, 1973, at the request of defendant. He was told by plaintiff that he began to suffer with severe pains across the lower part of his back on October 16; the pain increased in severity to the point where he was unable to walk and he was hospitalized for six days; he had since returned to limited duty but continues to have pains in his back; and he was improved to the extent that he could walk and was currently being treated at the plant by heat applications on a daily basis. X-ray examination revealed incomplete sacralization on the fifth lumbar vertebra which is developmental in origin and which, when compared to X-ray films made in December, 1970, showed no change in the appearance of the sacralization. Dr. Redler opined that disability was minimal and should be resolved with the therapy being administered within ten days. He also reported that he saw plaintiff on November 29, when plaintiff complained that the pain had increased in severity. On examination the doctor found no objective symptoms of disability and opined, that any residual disability was minimal and he could return to his regular work.

Dr. Charles W. Krieger testified that he first saw plaintiff on February 12, 1974, and plaintiff stated to him “that he received a back strain in 1969 while lifting equipment on the job. He subsequently had intermittant episodes of low back pain, which have gotten progressively worse in the past year.” After examining plaintiff and performing a myelogram Dr. Krieger diagnosed a herniated disc leading to the surgical back fusion. His testimony was crucial with respect to plaintiff’s condition and its relationship to the three alleged accidents.

In his opinion plaintiff’s condition, though aggravated by his work over a period of time, was not caused by any specific accident. He could not testify as to when plaintiff’s disc herniation developed. As to whether the condition existed as far back as 1969 the doctor answered, “I really couldn’t say that .... unless I would see an X-ray from 1969.” He concluded that plaintiff had the problem in February, 1974, and the condition had existed for some time. He answered affirmatively this question:

“Then the final thing was that you concluded from your history or you could not tell otherwise from your history that there was no particular on-the-job episode of an accident and injury that brought this about, but it was just the series of heavy physical instances in this man’s life that brought about the physical deterioration of his back, is that correct, sir?”

In Gorbach v. Praeger, Inc., La.App., 310 So.2d 604 (S.Ct.1975) the Supreme Court reversed an opinion of this Court, 300 So. 2d 618, in which we reversed the trial judge and found plaintiff to be entitled to Workmen’s Compensation benefits on the theory that while plaintiff did not prove any particular sudden accident he did prove repeated traumas or small strains over a period of time which finally caused a complete rupture of a weakened interver-tebral disc causing his inability to work. In reversing our decision, the Supreme Court said the following:

“The medical experts, in effect, testified that plaintiff’s back condition would likely have been aggravated by his duties as ■ a machinist. This medical opinion, however, does not of itself satisfy the requirements for proof of causation in the present case. Plaintiff’s back condition was chronic. The factual question is: Has the plaintiff established that the event that triggered the disability occurred on the job, rather than off the job in the automobile accidents. We think not.” (emphasis ours)

In the instant case the trial judge apparently answered the question posed by the Supreme Court above in the negative. Although plaintiff testified as to three separate accidents, and his testimony is corroborated to an extent by defendant’s records, there is no medical testimony that such accidents caused his ultimate disability. On the contrary, his own medical witness, Dr. Krieger, testified- that plaintiff’s. disability is not the direct result of any of the three accidents.

Accordingly, we have concluded that the plaintiff did not carry his burden of proof and the judgment of the trial court dismissing his claim is affirmed.

Affirmed.

LEMMON, J., dissents with written reasons.

LEMMON, Judge

(dissenting).

R.S. 23:1031 requires “injury by accident” in the .course of and arising out of employment. The terms “happening suddenly and violently” and “producing at the time objective symptoms of injury”, modifying “event” in R.S. 23:1021(l)’s definition of “accident”, have not been interpreted in the jurisprudence to require a single, identifiable work event or unusual job experience; the terms have served more to rule out disabilities from gradually and progressively developing conditions which may equally “arise out of” recreational and home-oriented activities rather than job-connected activities. The lack of suddenness in cause or in effect has not necessarily defeated recovery where a causal relationship between the job and the disability has been firmly established.

The decision in Gorbach v. Praeger, Inc., supra, did not turn on plaintiff’s inability to prove an identifiable accident at work, but rather on the fact that plaintiff was in two automobile accidents between the initial onset of back pain and the ultimate disability. In fact, the court observed that “(w)hen the ligaments, cartilages, or organs of the body give way because of exertion on the job, the unsuing disability is compensable.”

In the present case plaintiff injured his back on the job in June, 1973, after having worked for five years at strenuous labor for defendant. He reported two more incidents (and was hospitalized once) between then and the ultimate disability in February, 1974. However, plaintiff’s case as to disability resulting from any of these reported incidents is weakened by (1) his orthopedic expert’s opinion that a preexist-ent back condition was aggravated by constant strenuous labor, which brought about the physical deterioration of the back, and (2) his failure to produce the doctor who treated and hospitalized him in October, 1973.

Nevertheless, the fact that plaintiff’s back deteriorated because of repeated incidents of exertion on the job is not in serious dispute. The overall purpose of the Workmen’s Compensation Act is to provide benefits for workers who become disabled because of one or more incidents occurring on the job (rather than at home or at play). In my opinion that purpose would be frustrated by denying benefits to an employee whose back ultimately “gives way” because of a series of exertions in the course of strenuous employment.

      . Plaintiff did not produce testimony or a report from Dr. Roberts.

      . Recovery has often been denied when the injury lacks suddenness both in cause and in event.


author: BOUT ALL, Judge.

text:
    Raymond MILLER, Jr. v. ALEX J. KONDROIK MILLWORK COMPANY, INC., and Continental Insurance Company.
    No. 7066.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    A. Patrick Dehon, Jr., Edmund J. Schmidt, Jr., New Orleans, for Raymond Miller, Jr., plaintiff-appellant.
    Beard, Blue, Schmitt & Mathes by Robert M. Johnston, New Orleans, for Alex J. Kondroik Millwork Co., Inc., and Continental Ins. Co., defendants-appellees.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   BOUT ALL, Judge.

This is a workmen’s compensation suit in which plaintiff, Raymond Miller, Jr., alleges disability due to an industrial accident which severed the tip of his middle finger on the left hand. The trial court, after a two day trial rendered judgment for the plaintiff under the provisions of LSA-R.S. 23:1221(4)(c), which is a specific award for loss of function of the finger. Plaintiff appeals, seeking an award of temporary, total disability.

The facts show that plaintiff was a sawyer and apprentice cabinet maker with defendant, Alex J. Kondroik Millwork Company, Inc. On April 7, 1972 plaintiff’s left hand was caught in a planer resulting in the amputation of the distal phalanx of the middle finger. Plaintiff was taken to the hospital where the finger was operated on by Dr. Byram. Three workdays later plaintiff returned to work with his finger heavily bandaged. He attempted to resume his former duties with defendant, however, the pain of the recent amputation plus the awkward bandage caused his supervisor to relegate him to more menial tasks. Two weeks after returning to his former employment he quit his job in a dispute with the company over the amount of pay due him for this period when he did not work full time.

Following his resignation from the mill-work’s employ he found work with the Henry Oliver Construction Company doing somewhat similar work, mainly cabinet work and installation. Although there is no corroborative testimony in the record concerning plaintiff’s employment there, plaintiff testified that he worked there for two weeks during June of 1972 and was terminated for failing to produce enough work. Plaintiff further testified that he experienced trouble trying to do the work because his finger bothered him most of the time, causing him to drop his tools and materials.

Following his termination by Oliver Construction Company he became employed by Southern Hardware Company, again doing similar work, mainly cabinet construction work. Plaintiff held this job for six months, until the end of December, 1972. Plaintiff testified that his finger bothered him the entire time he was employed there. The specific complaint was that every time he struck his finger on an object, which was often in his trade, it would cause an electric-like shock in his finger and up his arm. This shocking type pain caused him to drop whatever he had in his hand and slowed down his production somewhat. The foreman for Southern Hardware testified that plaintiff complained to him on an average of twice a day about his finger. The president of Southern Hardware did not testify, but, the parties stipulated that his testimony would have been that plaintiff was a good worker, produced satisfactory work, however, he was terminated because he could not produce the work fast enough.

Plaintiff had two operations on his finger. The first was performed by Dr. By-ram immediately after the amputation. The second was performed two years later by Dr. Adatto in April of 1974. Dr. By-ram testified that he followed plaintiff’s progress after the operation and that he remembers him complaining of pain in his finger tip. The doctor explained that he did not consider this unusual for a post-traumatic amputation symptom but he did not consider it excruciating or incapacitating. Dr. Byram explained to plaintiff that these symptoms of pain often linger a while after an amputation. The doctor treated plaintiff from April of 1972 until May of 1973 at which time he still noted the increased sensitivity of the finger and apparently continued to assure plaintiff that it would subside.

Following the first day of trial (Feb. 7, 1974), plaintiff returned to Dr. Byram for examination on Feb. 20, 1974. He made the same complaints of pain, and the doctor found some enlargement on either side of the finger with slight tenderness which could be a neuroma. He felt plaintiff had a 25% disability of the finger, that he would have some sensitivity and discomfort occurring if he struck the end of the finger against some surface. Dr. Byram’s physical findings, he explained, would be consistent with the later determination by Dr. Adatto on surgery of two epidermal cysts and a flexiform neuroma. He dis-' cussed the possibility of surgery with plaintiff’s attorney.

Thereupon, plaintiff saw Dr. Kenneth Adatto, specializing in orthopedics and hand surgery, on March 8, 1974. He diagnosed the problem as an entrapped neuro-ma and successfully operated on it in April of 1974, at the same time removing two cysts. Dr. Adatto explained that neuromas are small bundles of nerve endings which always form after an amputation. Generally, this bundle forms well within the fleshy part of the amputated limb or finger and does not cause any problem. Occasionally the bundle will form very near the surface of the skin and when this occurs it causes the person to experience electric-like shocks upon striking that area. This was the case with plaintiff. It was Dr. Adatto’s opinion that plaintiff was, taking into consideration his occupation, totally disabled from the time of the accident until approximately three weeks after the second operation. By the time of the second day of the trial in June, 1974, plaintiff was experiencing no pain or difficulty with his finger.

It is not disputed that plaintiff lost the tip of his finger and that a neuroma formed on that amputated tip. The issue is the extent of disability. The trial court felt that plaintiff had not shown a disabling injury and therefore granted only an award for loss of function under the specific schedules in the act. We are of the opinion that both the medical and lay testimony support a finding that plaintiff was temporarily, totally disabled, because he could only work with substantial pain.

The defendants contend that plaintiff suffered a loss covered by the schedule in LSA-R.S. 23:1221(4) and that is his sole remedy. However, the jurisprudence is clear that the schedules apply only in the absence of any proven disability. That is to say that a person who incurs a scheduled loss and a resulting disability could recover under any section of R.S. 23:1221, but not two of them. To this extent the schedules are not exclusive remedies if the claimant can prove his disability, as did the plaintiff in this case. Adams v. St. Paul Fire & Marine Insurance Company, 270 So.2d 307 (La.App. 1st Cir. 1972); Papillion v. Employers Liability Assurance Corporation, 146 So.2d 448 (La.App. 3rd Cir. 1962).

It has long been a part of our compensation law that a worker is disabled if his injury results in him having to work in substantial pain. Herbert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286 (S.Ct.1965); Lewis v. Weise, Inc., 268 So.2d 147 (La.App. 1st Cir. 1972); Flowers v. E. M. Toussel Oil Co., 190 So.2d 147 (La.App. 4th Cir. 1966). It is not necessary that this pain be a constant pain. It is sufficient that the normal duties of the occupation cause the worker to experience frequent, substantial pain.

The testimony in this case shows plaintiff understandably worked in substantial pain immediately after the accident and that as late as 13 months after the accident Dr. By ram still noted pain and sensitivity in the finger. He noted a similar condition after the first trial day. Two years after the accident Dr. Adatto demonstrated the sensitivity when he diagnosed plaintiff’s ailment as an entrapped neuro-ma, and successfully operated on it. The last time plaintiff worked at his occupation was in December of 1972 and the foreman of Southern Hardware Company testified that plaintiff complained to him about his finger at least twice a day. Thereafter he worked in other occupations as a salesman.

We hold that the above facts evidence a temporary, total disability and for that reason we amend the judgment appealed from to increase the award of the trial court to compensation benefits of $49.00 a week for 113 weeks, with legal interest on each past due weekly installment from its due date until paid.

As amended the judgment of the trial court is affirmed at appellee’s cost.

Amended and affirmed.


author: GULOTTA, Judge.

text:
    LINDSAY REALTY CORPORATION v. Dr. Joseph H. BELLINA et al.
    No. 7018.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.
    Lee C. Grevemberg, New Orleans, for plaintiff-appellant.
    Bronfin, Heller, Feldman & Steinberg, Fred Bronfin, New Orleans, for defendants-appellees.
    Before SAMUEL, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This is a suit by a realtor against sellers, owners in indivisión of real property, for a real estate commission allegedly earned when plaintiff obtained a ready, willing and able buyer in accordance with the terms and conditions of a listing agreement given to plaintiff realtor by defendant sellers. The sale was never consummated. Plaintiff appeals from an adverse judgment. We affirm.

On August 18, 1972, defendants authorized plaintiff to offer for sale immovable property to Whitlow Motor Company, Inc., for the sum of $500,000.00 on terms of $80,000.00 cash, the balance to be paid monthly over 25 years at an interest rate of 7% per annum. Defendants agreed to pay a real estate commission on the sale or on any transaction that may be negotiated during the existence of the listing agreement which expired on September 17, 1972. On August 31, an offer to purchase for the sum of $450,000.00 was made by Whitlow through plaintiff realtor. This offer was not accepted by the sellers.

On September 12, 1972, a second offer was made by the purchaser for the sum of $500,000.00. This offer contained the right of prepayment without penalty, as did the original offer. The second offer also provided, as requested by defendants, that the act of sale be passed before sellers’ notary. Three of the four sellers in indivisión signed the acceptance; however, the fourth owner did not.

Thereafter, on September 15, all of the sellers signed the September 12 offer, but not before amending the document. Deleted from this offer were conditions relating to the purchaser’s ability (1) to obtain building permits, (2) to obtain location approval by General Motors and approval for General Motors financing, and (3) to obtain a truck dealer’s license. Further deletions made by the sellers from the September 12 offer were those stipulations which provided for the payment of a realtor’s commission in any circumstance other than upon the consummation of a sale. The document was amended by providing for a 10% penalty on the remaining balance of the loan, in the event purchaser exercised the right of prepayment. As amended by defendants, the September 12 offer (which became a counteroffer dated September 15) was transmitted to plaintiff but was never accepted by the purchaser.

On appeal, it is plaintiff’s position that a ready, willing and able buyer was obtained in accordance with the terms of the listing agreement, and that plaintiff is entitled to payment of the earned commission.

Lindsay contends that the September 12 offer incorporated the revisions suggested by sellers, i. e., that the purchase price be $500,000.00, and not $450,000.00 as provided for in the original offer, and that the act of sale be passed before sellers’ notary. According to plaintiff, the revised offer to purchase met the requirements of the sellers’ conditions for sale under the listing agreement.

Defendants contend that the September 12 offer obtained by plaintiff contained a prepayment clause without penalty and as such, allows the purchaser to convert the sale from a credit sale (providing long-term payments to the sellers) to a cash sale (providing for a cash pay-out at the time of the act of sale or at any time thereafter). According to defendants, the listing agreement particularly provided for a 25 year payment on terms, because defendants were desirous of providing an annuity for one of the sellers. In answer to plaintiff’s position that the listing agreement did not include a prohibition against prepayment and the inclusion of the prepayment clause in the offer did not vary the terms of the agreement, defendants argue that unless the right to prepay is specifically given to the purchaser in the listing agreement, any provision in the offer to purchase providing for prepayment without penalty was contrary to the agreement.

Defendants further contend the offer of September 12 did not conform to the listing agreement since the offer was conditioned upon purchaser’s ability to secure building permits, financing and location approval from General Motors and licensing as a truck dealer. According to the Beilinas, plaintiff is not entitled to a commission unless he has secured a purchaser ready, willing and able to buy on vendor’s terms in conformity with the listing agreement. Because plaintiff failed to do so, sellers contend plaintiff is not entitled to a commission.

At the outset, we reject plaintiff’s argument that purchaser is entitled to the right of prepayment without penalty where there exists no prohibition against prepayment. Although we have found no case dealing with the purchaser’s right of prepayment without penalty, it is well settled that the maker of a note has no right to payment before maturity without the consent of the holder. See In Re Liquidation of Hibernia Bank & Trust Co., 189 La. 813, 180 So. 646 (1938); Coco v. Soniat, 144 So.2d 432 (La.App., 4th Cir. 1962). See also LSA-C.C. art. 2052. Analogizing the note situation to a real estate transaction, we conclude purchaser does not have the right of prepayment unless that right is specifically given to him. Now turning to a comparison of the September 12 offer with the August 18 listing agreement, we conclude the offer does not conform to the agreement.

In written reasons, the trial judge stated:

“The offers of August 31, 1972, and September 12, 1972, were not in accordance with the agreement which defendants made with plaintiff, as set forth in the contract of August 18, 1972, inasmuch as both documents contained many provisions contrary to the specifically set forth provisions of the August 18th agreement. While it is obvious -that had the provisions of the offer of September 12, 1972, been acceptable to the co-owners of the property the commission claimed by plaintiff would have been earned by him, in accordance with the agreement of August 18, 1972, the fact remains that these provisions were not acceptable to the co-owners, hence he has not earned his commission.”

We agree. Although the listing agreement provided for a credit sale with a long-term pay-out (25 years) and did not contain the right of prepayment, the September 12 offer to purchase afforded the right to the buyer to prepay the entire balance of the said mortgage, at any time, without penalty. Another example of substantial difference between the documents, as pointed out by defendants, is that the September 12 offer is conditioned upon the purchaser’s ability to secure building permits, a truck dealer’s license and financing approved by General Motors. Other discrepancies, of lesser significance, exist in these documents.

Plaintiff nevertheless suggests that the parties were free to modify the listing agreement by subsequently agreed to amendments. Lindsay points out that the August 18 agreement provides for “. . . any other price, or terms as may hereafter be agreed upon . . .”

While it is true that any subsequent modified agreement for the sale to Whit-low would have entitled plaintiff to a commission, no such agreement was reached. - Whitlow never accepted the amended September 15 counteroffer of the purchaser’s September 12 offer. According to Whitlow, he did not seriously consider the counteroffer because it contained a penalty in . the event he exercised the right of prepayment. It is clear, therefore, no meeting of the minds existed between the prospective purchaser and the sellers. No binding agreement was made. See LSA-C.C. arts. 1766, 1779; McMorris v. Pepperdene, 292 So.2d 892 (La.App., 1st Cir. 1974), writ refused, 294 So.2d 840 (La.1974).

Having concluded no offer was submitted in accordance with the listing agreement and that the amended offer was not accepted, we conclude plaintiff is not entitled to the claimed realtor’s commission. The judgment is affirmed.

Affirmed.

      . Adams v. Spillmam, 290 So.2d 726 (La.App., 1st Cir. 1974), writ refused, 293 So.2d 191 (La.1974) and Landry & Passman Realty, Inc. v. Keen, 170 So.2d 775 (La.App., 1st Cir. 1964).