text:
    Lewis O. VICE v. J. A. FERGUSON and Thomas W. Sanford, Sub. Trustee.
    No. 48426.
    Supreme Court of Mississippi.
    Nov. 10, 1975.
    Rehearing Denied Dec. 15, 1975.
    M. Charles May, Jackson, for appellant.
    Roy D. Powell, Jackson, for appellee.
    Before INZER, WALKER and BROOM, JJ.
   Affirmed.


source: Caselaw Access Project

author: SUMMERS, Justice.

license: Public Domain

text:
    LOUISIANA ASSOCIATION FOR MENTAL HEALTH et al. v. The Honorable Edwin W. EDWARDS, Governor of the State of Louisiana, et al.
    No. 56884.
    Supreme Court of Louisiana.
    Oct. 28, 1975.
    Rehearing Denied Nov. 13, 1975.

      William J. Guste, Jr., Atty. Gen., Robert C. Funderburk, Jr., Staff Atty., Baton Rouge, Richard V. Burnes, Gravel, Roy & Burnes, Alexandria, Charles Wm. Roberts, Mengis, Roberts, Durant & Carpenter, Baton Rouge, Richard G. Crane, Baton Rouge, for Director, La. Dept, of Corrections, for defendants-appellants.
    Sam A. LeBlanc, III, Adams & Reese, New Orleans, John L. Avant, Dodd & Barker, Baton Rouge, for plaintiffs-appellees.
   SUMMERS, Justice.

Plaintiffs are Louisiana Association For Mental Health, Robert E. Couhig and Mrs. Robert E. Couhig; Joe Howell, Mr. J. Henry Johnston and Mrs. J. Henry Johnston, Bobby Bickham and Mrs. Bobby Bickham, Johnny McKowen and Mrs. Johnny McKowen, John L. Avant, Mental Health Association of Baton Rouge, Louisiana, Louisiana AFL-CIO, Victor Bussie and Mrs. Fran Bussie.

Defendants are The Honorable Edwin W. Edwards, Governor of the State of Louisiana, Charles E. Roemer, II, Commissioner of Administration, Elayn Hunt, Director, Louisiana Department of Corrections, Murray Henderson, Warden, Louisiana State Penitentiary, Dr. William H. Steward, Commissioner, Louisiana Health and Human Resources Administration and Wayne Heap, Director, Louisiana Department of Hospitals.

In order to merge and consolidate into one department the executive and administrative offices, boards and commissions whose duties were of a similar nature or character, the Louisiana Department of Corrections was created in 1968 with a director and board to govern its affairs. La.R.S. 15:821-38. The scope of the department’s authority was declared to comprise functions of the State in relation to the administration and operation of all state institutions for the care, custody and correction of persons sentenced for felonies or misdemeanors. The director was authorized to buy lands needed for the proper use of any institution under the jurisdiction of the department. Louisiana State Penitentiary at Angola is a correctional institution for confinement and correction of all persons sentenced to the penitentiary. As such it is under the administration and operation of the Department of Corrections. La.R.S. 15:851.

For some time it had become apparent that decentralization of the facilities at Angola was considered advisable. The inmate population was constantly increasing and the question arose for security reasons as to the number of prisoners it was considered advisable to confine in one location. Experience had demonstrated that adequate numbers of competent staff personnel were difficult to enlist in the area because of the location of the penitentiary and the demands upon that class of employee) particularly medical, in the private sector. Other factors made continued enlargement of the Angola facility questionable. The penitentiary is located on the Mississippi River with poor levees, and flooding presents a recurring problem. Since the U. S. Corps of Engineers do not maintain the levees at that point, cost of improving the existing levee would be borne by the State, a substantial cost making economic feasibility questionable.

A joint effort was underway in the latter part of 1974 on the part of the Department of Corrections and other State Officials seeking other locations to accommodate part of the growing inmate population at Angola. Initially, inquiries disclosed that available sites meeting suitable security standards were the abandoned and unused facilities at Colonies 6, 7 and 9 of East Louisiana State Hospital, Jackson, Louisiana; vacant space at Greenwell Springs Hospital near Baton Rouge and a vacant school in the Shreveport area.

Soon after the adjournment of the legislative session in July 1975 the State Fire Marshall filed a report on July 15, 1975 indicating that State law required that a minimum of fifty square feet floor space was needed for each inmate. Concurrently, a suit filed several years prior thereto in the Federal District Court for the Middle District of Louisiana resulted in an order directing the Governor, Director of Corrections, and Warden of the penitentiary at Angola to file a comprehensive report to cover, among other, plans for the decentralization of the Louisiana State Penitentiary and for establishment of several smaller facilities throughout the State, together with specific timetables and funding plans for such decentralization.

Faced with these factors and the continued and projected overcrowding of the penitentiary, it was decided by the Governor, the Administrative Assistant to the Governor, the Director of the Louisiana Health and Human Resources Administration and the Director of Corrections, and others, to employ the facilities at Colonies 6, 7 and 9 located on lands belonging to the State and held under the Administration of the Louisiana Health and Human Resources Administration. Accordingly, negotiations for the lease and its preparation were promptly undertaken. On August 20, 1975 a lease was confected whereby the Louisiana Health and Human Resources Administration let to the Louisiana Department of Corrections approximately 1,900 acres of land containing Colonies 6, 7 and 9. The lease is for a term of 25 years and is executed pursuant to the provisions of Sections 1291 through 1294 of Title 41 of the Revised Statutes and pursuant to the authority of Section 14 of Article VII of the Constitution of 1974 and Sections 1751 through 1767 of Title 46 of the Revised Statutes.

Section 1291 of Title 41 authorizes any political subdivision of the State of Louisiana to lease without advertisement for bids “from any other political subdivision, the State of Louisiana, the United States of America or any agency thereof, any public lands and improvements thereon of which it has title, custody and possession.”

In the meantime, on August 8, 1975, the Commissioner of Administration contracted with Buquet & LeBlanc, Inc., to repair and renovate Colonies 6, 7 and 9 to house minimum security prisoners as directed by the Facility Planning and Control Department of the State of Louisiana. The contract involved an expenditure of $500,000.

The General Appropriations Bill (Act 16 of 1975) provided that only appropriated funds could be expended unless the head of the state agency which requires the expenditure of a deficit certified to an emergency, the expenditure was approved by the Interim Emergency Board, the Division of Administration, the legislative auditor, and the Governor and was then approved by the legislature. When not in session, the legislative approval of two-thirds to be obtained by mail ballot.

In the meantime, the Director of Corrections certified to the Governor that an emergency situation existed within the Department of Corrections, and it was necessary to expend funds in excess of those appropriated. The Governor then, on August 18, 1975, declared that a state of emergency existed within the Department of Corrections, and the Department of Corrections should therefore be permitted to expend funds needed to meet the emergency.

Because the emergency had not been declared prior to confection of the contract with the contractors Buquet and LeBlanc, Inc., that contract was cancelled on August 20, 1975 and renegotiated on that date. See La.R.S. 38:2211, subd. D. To comply with formal requirements, another declaration of emergency was issued and published on August 24, 1975. It is the announced intention of defendants to renegotiate a contract like the August 8, 1975 contract and to proceed accordingly.

While these events were in progress, plaintiffs instituted suit in the Twentieth Judicial District Court in East Feliciana Parish, the location of East Louisiana State Hospital,, for an injunction to restrain and enjoin defendants from transferring convicted felons from Louisiana State Penitentiary at Angola to East Louisiana State Hospital at Jackson, other than those assigned to the forensic medical unit; or from expending monies appropriated for the operation and maintenance of the penitentiary at Angola to convert the hospital at Jackson into a penal institution by quartering convicted felons there.

A temporary restraining order was issued and defendants were cited to show cause why a preliminary injunction should not issue. To these proceedings defendants filed dilatory exceptions of lack of procedural capacity, peremptory exception of no right and no cause of action, or no interest in the plaintiffs to institute suit. These exceptions were overruled by the trial judge and are urged on this appeal. As a result of the hearing held on'the application for a preliminary injunction, the trial judge enjoined the plan defendants proposed to implement. The injunction was made permanent on the same evidence.

The exceptions referred to are grounded upon allegations that the individual plaintiffs have no authority or procedural capacity to represent any individuals at the hospital in Jackson; that the Louisiana Association for Mental Health has not alleged that it either acts through corporate resolutions or that it is not required to do so by the terms of its charter and that the plaintiffs as individuals and associations have failed to assert a real and actual interest in the matter.

Plaintiffs’ petition is based upon allegations that defendants have publicly announced their intention to transfer for an indefinite period four to five hundred convicted felons from the penitentiary at Angola to the hospital at Jackson contrary to the law designating the hospital at Jackson as a facility for the treatment of the mentally ill and inebriate.

The proof does not support this allegation. In the vast land area heretofore assigned to the hospital at Jackson, the area leased in which Colonies 6, 7 and 9 are located is more than a mile away, separated by a ravine and woodland from the nearest hospital facility. In addition, the record supports the conclusion that the renovated facilities at Colonies 6, 7 and 9 will be operated under a different name to further disassociate it with the hospital at Jackson. It will be surrounded by proper fences and guard towers to assure confinement of the inmates and will have no relation to the Jackson facility, other than the use of some of the same medical personnel for routine medical calls to be conducted separately from the hospital. It is not correct to say under these facts that the proposal to transfer prisoners to Colonies 6, 7 and 9 is a confinement of those prisoners in the hospital at Jackson or that it will convert the hospital into a penal institution contrary to law. See La.R.S. 40:2013.1 and La.R.S. 15:851.

Plaintiffs further allege that the proposed transfer of penitentiary inmates to Colonies 6, 7 and 9 is contrary to Section 16 of Article III of the Louisiana Constitution of 1974 providing that no money shall be withdrawn from the state treasury except through specific appropriation.

At the trial of the preliminary injunction the principal evidence presented with respect to the funds to be used in the contemplated action by defendants is the testimony of the Commissioner of Administration. He testified that in the initial phase of the implementation of the plan it is the intention of defendants to use the monies appropriated to the Department of Corrections. The plan of prisoner transfer, he said, was considered an appropriate expenditure of that department since the law charged that department with the responsibility of incarcerating prisoners wherever that may be required, either at the penitentiary, a first offender facility, a female facility or elsewhere. In the short run the funds of that department, and possibly funds available from authorizations under the Capital Outlay Bill (La.Act 823 of 1975), would be drawn upon for the $500,000 expenditure. Funds allocated to the Interim Emergency Board and funds appropriated to the penitentiary at Angola would also be considered as a source for expenditures on the initial requirements.

It is to be noted here that in 1975 $12,153,452 are appropriated to the Department of Corrections and $5,772,476 are appropriated to the Louisiana State Penitentiary. These funds, it is inferred, could supply the needed $500,000 for the initial expenditure without unduly affecting the administration of the Department of Corrections or the Angola operations. These steps would be taken until such time as defendants could follow prescribed procedure tc undertake a more onerous deficit expenditure which the appropriations to the Department of Corrections and the Louisiana State Penitentiary would not sustain.

At the same time, defendant would work to develop a more detailed analysis of the expenditures which should be budgeted and provide for them under the emergency provision of the appropriation act. This would, of course, involve approval of the legislature by mail ballot if necessary.

These facts do not warrant the conclusion that the proposed short-term expenditures from funds appropriated to the Department of Corrections or to the Louisiana State Penitentiary of $500,000 is violative of the constitutional prohibition against withdrawal of funds from the state treasury unless through a specific appropriation. Undoubtedly the announced plan of defendants to transfer approximately 500 minimum security prisoners to Colonies 6, 7 and 9 is an activity within the contemplation of the authority and responsibility of the Department of Corrections.

And under these emergency conditions at Angola, when the prison population far exceeds the accommodations available, and when the overcrowding creates a noticeable and serious security problem due to the prisoner concentration in one location, no violation of the constitution occurs because appropriations for Angola are expended for transfer of some of its prisoners to another locality. All funds appropriated to Louisiana State Penitentiary are not invariably expended at Angola. Some are expended for operation of work release programs at Camp Beauregard near the city of Alexandria. Operation of Jackson Barracks, far removed from Angola, consumes part of these funds, and salaries of guards assigned to inmates at the hospital in New Orleans are funded from the penitentiary appropriation. In short, the broad category of the penitentiary appropriation does not limit expenditure to the Angola operation alone, so long as the expenditure is for an activity associated with the penitentiary and is in keeping with the overall responsibility and authority of the Department of Corrections.

It is further to be noted that utilization of Colonies 6, 7 and 9 is a more economical and expeditious solution to part of the problem created by overcrowding at Angola. Expansion of facilities at Angola, which plaintiffs suggest is appropriate under the circumstances, would properly require improvement of the levee and construction from the ground up of new buildings and the necessary auxiliary structure. This would involve a great deal more time and expense than quartering the inmates in Colonies 6, 7 and 9. Even then, the problems of obtaining needed staff and other personnel at this centralized activity would not be as well resolved as it would be at Colonies 6, 7 and 9. Experience has demonstrated that it is difficult to persuade civilian and medical personnel to accept employment at Angola, and the private sector in the area does not offer adequate medical personnel. Dispersing or decentralizing the prison activity offers better opportunities for filling this need. Instead of affecting taxpayers adversely as plaintiffs assert, therefore, the announced plan will result in an economy and saving to the taxpayer. More importantly, the critical conditions at Angola will be sooner alleviated.

A plausible argument can be made that the constitutional requirements that funds cannot be “withdrawn from the State Treasury”, La.Const. art. III, |f 16(A) (1974); and that “money shall be drawn from the state treasury only pursuant to appropriation”, La.Const. art. VII, ¶ 10(A) (1974), do not become operative until an attempt is made to withdraw the funds from the State Treasury. This has not yet occurred, and when this becomes necessary, according to the Commissioner of Administration, the Legislature will have authorized further expenditures either while in session or by mail ballot if not in session.

However, in view of the finding that no violations of the appropriations to the Department of Corrections or the Louisiana State Penitentiary are involved in the facts of this case, it is unnecessary for the decision to turn upon the argument that funds have not yet been withdrawn and the plaintiffs’ objection to the plan is for that reason premature.

The basic thrust of plaintiffs’ suit, and the primary and laudable interest they display in the matter, is that the announced plan to transfer inmates to Colonies 6, 7 and 9 will convert the hospital at Jackson into a penitentiary. To do so, it is argued, will adversely affect the treatment and attitude of the patients and the attitude of the public generally and minimize public use and acceptance of the hospital for the treatment of the mentally ill and the inebriate. As previously noted, the facts do not support such a conclusion. The plan will not result in converting the hospital into a penitentiary. As the facts are understood, the operation of the hospital will be unaffected, and proper conduct of the activity at Colonies 6, 7 and 9 will not interfere with patient treatment, nor will it adversely influence the public to discontinue use of the treatment the hospital offers to the detriment of the mentally ill and inebriate as plaintiffs contend. The colonies will be far enough removed from the hospital and isolated therefrom to bear a separate designation. Defendants contemplated a separate name as part of the plan. And an effort will also be made to influence public acceptance of the activity as a separate entity apart from the hospital.

These conclusions are supported in part by the testimony of a psychiatrist called by plaintiffs who was of the opinion that education of the public could possibly remove the stigma which may result from locating prison inmates in proximity to the hospital. Specifically, Dr. William H. Stewart, Commissioner of the-Louisiana Health and Human Resources Administration, defendants’ witness, supports the Court’s view in the matter. His entire working career has been in the field of public health. He is a past Chancellor of the Louisiana State University Medical Center, a past Surgeon General of the United States Public Health Service and Director of the Heart Institute. In his opinion the implemented plan would result in no impact on the patients at the hospital. This will be due to the geographic isolation of Colonies 6, 7 and 9 and the past favorable experience with the Forensic Unit at the hospital.

These findings, we believe, minimize the effect of the opinions of the psychiatrists and other experts who testified in support of plaintiffs’ contention that the plan would adversely affect the patients and impair the hospital’s main objective. Their opinions were to some extent based upon the supposition that a virtual conversion of the hospital into a penitentiary was involved, and that a significant connection between the hospital and Colonies 6, 7 and 9 would take place. Our conclusion is to the contrary.

Plaintiffs’ contention that the lease granted by the Health and Human Resources Administration to the Department of Corrections is invalid is not well taken. The Human Resources Administration is the successor to the Louisiana Department of Hospitals whose powers to sell property under its jurisdiction to any other state agency with the approval of the governor are set forth in Section 2004 of Title 40 of the Revised Statutes. This power to sell, when considered in connection with the general authority for inter-agency leasing already noted, necessarily includes the lesser authority to lease. See La.Rev.Stat. of 1870, Sec. 1760; La.Rev.Stat. 28:241 et seq. (1950); Act 35 of 1958; La.Rev.Stat. 40:2001 et seq. (1950); La.Rev.Stat. 46:1751. The property involved in the lease is administered under the authority of the Health and Human Resources Administration.

The contested lease is in authentic form, for a term of 25 years and is stated to be in consideration of “. . . the mutual benefit to be derived by each state agency involved and through them the benefit to be derived by the people of the State of Louisiana.”

Aside from the legality of the plan generally, the principal objection to the lease is the fact that no price in money is stipulated as required by Article 2671 of the Civil Code. However, under these circumstances, the Court is permitted to validate this transaction by a liberal construction of Article 2671 of the Civil Code, the general authority for inter-agency leasing and the authority of the Health and Human Resources Administration to sell to another state agency. A lease need not be based upon a price certain and determinate. It may consist of other considerations, the examples in the article, “a certain quality of commodities, or even in a portion of the fruits yielded by the thing leased”, being illustrative only.

Thus, upon these conclusions we find no merit to this attack by plaintiffs upon defendants’ announced intention to repair and renovate Colonies 6, 7 and 9 and to transfer prisoners from Angola to that location. For these reasons it is not necessary to decide the exception aimed at the capacity and interest of the defendants to maintain this action.

For the reasons assigned, the judgment appealed from is reversed and set aside, and the injunction issued herein by the District Court is dissolved and recalled.


text:
    TOWN OF LOGANSPORT v. Millard COPLEY et al.
    No. 56675.
    Supreme Court of Louisiana.
    Sept. 26, 1975.
   In re: Harold Cogswell applying for certiorari or writ of review to the Court of Appeal, Second Circuit, Parish of DeSoto. 321 So.2d 769.

Writ denied. Under the facts found the showing made does not warrant our review.

BOLIN, J., takes no part.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. The SOCIETY FOR the PROPAGATION OF the FAITH OF the ARCHDIOCESE OF NEW ORLEANS, INC., et al.
    No. 56901.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: State of Louisiana, through the Department of Highways applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of’ St. Tammany. 321 So.2d 393, 321 So.2d 388.

Writ denied.

On the facts found by the previous courts, the result is correct.


text:
    TURNKEY CONSTRUCTORS, INC. v. DEWEY, CHEATUM & HOWE, INC., et al.
    No. 57020.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Turnkey Constructors, Inc. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Lafayette. 321 So.2d 399.

Writ denied. Judgment not final.


text:
    STATE of Louisiana v. John SANDERS a/k/a John Brown.
    No. 57083.
    Supreme Court of Louisiana.
    Nov. 10, 1975.
   In re: John Sanders a/k/a John Brown applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. No abuse of discretion shown since there is no showing of an actual or potential conflict of interest.


text:
    STATE of Louisiana v. Donald J. LeBLANC.
    No. 56641.
    Supreme Court of Louisiana.
    Nov. 11, 1975.
   In re: Donald J. LeBlanc applying for Writs of Certiorari, Review and Supervisory Jurisdiction.

Writ granted. District Court is ordered to sentence defendant-applicant without further delay.


text:
    STATE of Louisiana ex rel. Deeotis FRANKLIN v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57060.
    Supreme Court of Louisiana.
    Nov. 11, 1975.
   In re: Deeotis Franklin applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ granted. Evidentiary hearing ordered relative to whether applicant should be transferred from local parish jail pending out of time appeal. See R.S. 15:706. State ex rel. Matthews v. Henderson, La., 292 So.2d 496. State v. Clark, La., 317 So.2d 623.


text:
    STATE of Louisiana ex rel. Leon GARRETT v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 57067.
    Supreme Court of Louisiana.
    Nov. 11, 1975.
   In re: Leon Garrett applying for Writ of Habeas Corpus, Certiorari and/or Review, Mandamus & Prohibition.

Granted: evidentiary hearing ordered. See R.S. 15:706; State ex rel. Matthews v. Henderson, La., 292 So.2d 496; State v. Clark, La., 317 So.2d 623.


text:
    STATE of Louisiana v. Thomas Louis PHILLIPS.
    No. 57033.
    Supreme Court of Louisiana.
    Nov. 11, 1975.
   In re: Thomas Louis Phillips applying for Writs of Certiorari, Mandamus and Prohibition.

Writ denied. The showing made does not warrant the exercise of this court’s supervisory jurisdiction. The transcript of evidence satisfies this court that there is no error in the ruling of the trial judge.


text:
    Alice Villa, widow of Joseph AYALA and Joseph R. Ayala v. BAILEY ELECTRIC COMPANY, INC., et al.
    No. 56987.
    Supremo Court of Louisiana.
    Nov. 14, 1975.
   In re: Travelers Ins. Co., Joseph P. Ruppel, Liquidator of Bailey Electric Co. Inc., applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 318 So.2d 645.

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. Wanda BUTLER.
    No. 56978.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Wanda Butler applying for Writ of Certiorari, Prohibition and Mandamus.

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 Elmo E. Lear, Judge of the Nineteenth Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 8th day of December, 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 27th day of February, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Buster Joseph CHIVOLETTO v. JOHNS-MANSVILLE PRODUCTS CORPORATION.
    No. 56998.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Buster Joseph Chivoletto, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 319 So.2d 492.

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:
    Melvin BAUDOIN and Errol Falcon v. Hon. George R. COOK, Sheriff In and For the Parish of Sabine and Hon. Jack Burgess, Judge 11th Judicial District Court, Parish of Sabine, etc.
    No. 57005.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Melvin Baudoin and Errol Falcon applying for Writ of Habeas Corpus.

Writ granted. It is ordered that the trial court hold an evidentiary hearing to determine whether or not there was an un-kept plea bargain and rule upon the case in light of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).


text:
    STATE of Louisiana v. Norbert POWELL.
    No. 56887.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Norbert Powell applying for writs of certiorari, prohibition and mandamus.

Writ denied. Considering the colloquys at the times of the pleas, there is no merit in the application.


text:
    STATE of Louisiana v. Charles ALEXANDER.
    No. 56874.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Charles Alexander applying for Writ of Certiorari.

Writ having now been considered, it is denied. This does not warrant the exercise for supervisory jurisdiction.

DIXON, J., dissents from denial.


text:
    STATE of Louisiana ex rel. David WELCH v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57027.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: David Welch, applying for writs of Habeas Corpus and Certiorari.

Writ granted. Evidentiary hearing ordered as to whether there is an unkept plea bargain and for a ruling on the evidence in the light of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.


text:
    Judy Areno MORRISON v. Levi Burril MORRISON.
    No. 56942.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Judy Areno Morrison, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 316 So.2d 453.

Writ denied. The result is correct.


text:
    Roger WILKINSON v. LOUISIANA STATE UNIVERSITY.
    No. 56943.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Roger P. Wilkinson, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, (Civil Service Commission). 316 So.2d 482.

Application denied. The result is correct.


text:
    CITY OF SHREVEPORT v. Arlene HILL.
    No. 56956.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Arlene Hill, applying for Writs of Certiorari, Prohibition and Mandamus.

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


text:
    STATE of Louisiana ex rel. Freddie NERO, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56959.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Freddie Nero, Jr., applying for Writ of Habeas Corpus, Certiorari, Prohibition, Mandamus and Other Remedial Writs.

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


text:
    STATE of Louisiana ex rel. Vernon EVANS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56961.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Vernon Evans, applying for writ of mandamus.

Writ denied. Relator not entitled to copy of transcript of hearing at time guilty plea entered for the purpose sought.


author: SUMMERS, J., TATE, J.,

text:
    KALVAR CORPORATION v. GENERAL MICROGRAPHICS.
    No. 56969.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Kalvar Corporation applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 318 So.2d 71.

Application denied. There is no error of law in the judgment of the court of appeal.

SANDERS, C. J., is of the opinion that a writ should be granted.

SUMMERS, J.,

dissents from the refusal to grant writs. See my dissent in Riverland Hardwood Co., Inc. v. Craftsman Hardwood Lumber Co., 259 La. 635, 251 So.2d 45 (1971).

TATE, J.,

dissents. The out-of-state corporation performed acts in Louisiana through negotiations here which led to the contract sued on. It has transacted business here. See La. R.S. 13:3201 (a).


text:
    STATE of La. ex rel. Larry JOHNSON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56963.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Larry Johnson, applying for writs of Habeas Corpus, Mandamus, Prohibition. -

Writ refused. No merit in application.


text:
    STATE of Louisiana v. Thomas A. MATHIEU.
    No. 56975.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Thomas A. Mathieu, applying for writ of review.

Writ denied. There is no factual or legal basis for granting this writ.


text:
    Succession of Mrs. Tomasa Giglio, Caravella, widow of Nicolo PETROLIA.
    No. 56979.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Mrs. Mazie Caravella Gilette, Miss Rosalie Caravella, Mrs. Josephine Paliso Caravella and Peter I. Caravella applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Charles. 318 So.2d 117.

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


text:
    The CITY OF NEW ORLEANS and its Agent, the New Orleans Aviation Board, an Unattached Board of the Executive Branch of the City of New Orleans v. GRAY LINE MOTOR TOURS, INC. and Toye Brothers Airport Service, Inc.
    No. 56991.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: New Orleans Aviation Board applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 317 So.2d 214.

Writ refused. No error of law in the basic holding.


text:
    Cora DOLAN v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 56983.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: New Orleans Public Service, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 317 So.2d 688.

Writ denied. On the facts found there is no error in ruling of court of appeal.


text:
    Mrs. Susie Daigle, wife of/and Walter DELGRANDILE v. EMPLOYERS INSURANCE OF WAUSAU and Younger Brothers, Inc.
    No. 56997.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Mrs. Susie Daigle, wife of /and Walter Delagrandile applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson.

Writ refused. The pivotal question is factual. On the facts found by the court of appeal, there is no error of law.

DIXON & TATE, JJ., are of the opinion the courts below are in error and the writ should be granted.


text:
    Geraldine Brown PERRY v. Irvin PERRY.
    No. 57030.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Irvin Perry applying for certiora-ri, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 319 So.2d 479.

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


text:
    STATE of Louisiana v. Michael L. NITEN and Richard Scott Brown.
    No. 57031.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Michael L. Niten and Richard Scott Brown applying for Writs of Certio-rari, Prohibition and Mandamus.

Writ denied. There is no showing that warrants the exercise of our supervisory jurisdiction.

DIXON & CALOGERO, JJ., dissent. The police had no right to stop defendant.


text:
    Francis E. MIRE v. TRAVELERS INSURANCE COMPANY.
    No. 57007.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Francis E. Mire, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calca-sieu. 318So.2d93.

Writ denied. The result is not incorrect.


text:
    STATE of Louisiana ex rel. Herman SMITH, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57010.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Herman Smith, Jr., applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. Renewed attack upon free and voluntary nature of guilty plea is without merit.


text:
    STATE of Louisiana v. Jimmy E. STOKES.
    No. 57013.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Jimmy E. Stokes, applying for writ of Certiorari or Review.

Writ not considered as not timely filed within the time fixed by the trial judge.


text:
    GOLDEN LANE MARINE, INC. v. BOBBEN FABRICATORS, INC. and Summit Insurance Company of N. Y.
    No. 57039.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Bobben Fabricators, Inc. and Summit Insurance Company of N.Y., applying for Certiorari, or writ of review, to Court of Appeal, Fourth Circuit, Parish of Jefferson.

Not considered. Application not timely filed. (See U.S. Post Mark dated October 24, 1975).


text:
    Emily Harrison FRANCIS, Administratrix of Succession and Tutrix of Minor v. GERLACH MEAT COMPANY, INC.
    No. 57028.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Gerlach Meat Company, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 319 So.2d 534.

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

BOLIN, J., takes no part.


text:
    STATE of Louisiana v. Refus COMBS.
    No. 57006.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Refus Combs, applying for writs of certiorari, prohibition and mandamus.

Writ denied. There is some evidence of the element of the crime referred to by applicant.


text:
    STATE of Louisiana v. Loyd BAKER
    No. 57014.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Loyd Baker applying for Writ of Certiorari or Review.

Writ not considered as not timely filed within the time fixed by the trial judge.


author: TATE, J., CALOGERO, J.,

text:
    STATE of Louisiana v. Egbert J. PENNISON. STATE of Louisiana v. Woodrow T. BAGWELL.
    No. 57004.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Egbert J. Pennison and Woodrow T. Bagwell applying for Writs of Review and Stay Order.

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

TATE, J.,

dissents. La.Const. Art. 1, Section 19, (1974) requires an intelligent waiver of the right to judicial review based upon a record of the evidence upon which the judgment is based. Even considering the trial court’s return, no such intelligent waiver was made by the simple failure to notice the recording machine was not turned on.

DIXON, J., dissents from the denial.

CALOGERO, J.,

dissents. This Court should speak authoritatively by granting this writ on this important interpretation of Art. 1, Sec. 19, La.Const., 1974.


text:
    STATE of Louisiana ex rel. Herman SMITH, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57069.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Herman Smith, Jr., applying for Writs of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Writ denied. Renewed attack upon free and voluntary nature of guilty plea is without merit.


text:
    STATE of Louisiana v. Loyd BAKER.
    No. 56520.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Loyd Baker on appeal from the 15th Judicial District Court, Parish of Lafayette.

Appeal dismissed for lack of jurisdiction. La.Const. Art. V, § 5(D)2. Treating the appeal as an application for writs pursuant to Rule 1, § 10 of the Rules of the Supreme Court of Louisiana, same is denied. No timely objection was made to the police officer’s testimony relative to the P.E.I. test and there is evidence to support the conviction.


text:
    STATE of Louisiana v. Hilda Elena BENTZ.
    No. 56552.
    Supreme Court of Louisiana.
    Nov. 14, 1975.
   In re: Hilda Elena Bentz on appeal from the Fourteenth Judicial District Court, Parish of Calcasieu.

Treating the present appeal (of a non-appealable misdemeanor conviction) as an application to our supervisory jurisdiction, Louisiana Supreme Court Rule I, Section 10 (1973), we deny the application for review.

We find no error in the trial court’s ruling of a valid search, and of state jurisdiction to try the offense (in the absence of a showing of exclusive federal jurisdiction (see 40 U.S.C. § 255 (1970)).


text:
    STATE of Louisiana v. Stanley SULLIVAN.
    No. 57110.
    Supreme Court of Louisiana.
    Nov. 17, 1975.
   In re: Stanley Sullivan applying for Supervisory Writs.

Writ denied. In the absence of palpable error, this court will not interfere with the orderly processes of a trial court.


text:
    STATE of Louisiana ex rel. Paul E. PHILLIP v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56870.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Paul E. Phillip applying for writ of certiorari.

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


text:
    STATE of Louisiana ex rel. Haywood LIGGINS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57022.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Haywood Liggins applying for Writ of Habeas Corpus, Certiorari, Prohibition and Mandamus.

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


text:
    Helen Castille RICHARD v. AMERICAN HOME ASSURANCE CO.
    No. 57035.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Helen Castille Richard applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia. 318 So.2d 613.

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


text:
    ACADIANA PROPERTIES, INC. v. CONTINENTAL INS. COMPANY et al.
    No. 57034.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Acadiana Properties, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia. 318 So.2d 86.

Writ denied: Under the facts found, no error of law is shown.


text:
    Mrs. Rose Deckelman, wife of and Bernard E. DECKELMAN, Sr. v. Lucien C. LOUPE et al.
    No. 57032.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Mrs. Rose Deckelman, wife of and Bernard E. Deckelman, Sr., applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 319 So.2d 478.

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


text:
    STATE of Louisiana v. Carrol MATHERNE. STATE of Louisiana v. Kenneth MATHERNE.
    No. 57040.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Carrol Matherne and Kenneth Matherne applying for Writs of Certiorari, Mandamus, Prohibition and Review.

Writ refused. On the evidence adduced, the showing made is insufficient to warrant the exercise of our supervisory jurisdiction.


author: TATE, J.,

text:
    John S. SCHOELEN and Rosemary Fath Schoelen v. FIDELITY AND CASUALTY CO.
    No. 57041.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: John S. Schoelen and Rosemary Fath Schoelen, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 318 So.2d 90.

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

TATE, J.,

dissents in the belief that no reasonable cause is shown for the defendant insurer’s excuse of non-payment prior to trial, in view of the indisputable showing of the uninsured motorist’s legal liability for the daughter’s death.

DIXON, J., is of the opinion that the Court of Appeal was in error and the writ should be granted.

CALOGERO, J., dissents, believing the writ should be granted.


text:
    STATE of Louisiana v. Billy TAYLOR.
    No. 57043.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Billy Taylor applying for Writs of Review, Prohibition, Mandamus and Stay Order.

Application denied; the contentions of applicant have been considered and decided adversely in State v. Gray, 258 La. 852, 248 So.2d 313 and State v. Square, 257 La. 743, 244 So.2d 200.


text:
    STATE of Louisiana v. Kenneth McCARTNEY.
    No. 57044.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Kenneth McCartney applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

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


text:
    STATE of Louisiana ex rel. John C. STEIN, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57045.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: John C. Stein, Jr., applying for writs of habeas corpus, or in alternative, writs of certiorari, prohibition and mandamus.

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


text:
    STATE of Louisiana ex rel. Brenda WILSON v. J. D. MIDDLEBROOK, Supt. Louisiana Institute for Women and Matthew S. Braniff, Judge, Sec. “B” Parish of Orleans Criminal District.
    No. 57046.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Brenda Wilson, applying for remedial writs and habeas corpus.

Writ refused. According to the order filed by the trial judge the return date for the appeal is now fixed for January 5, 1976. Hence, this application is denied.


text:
    STATE of Louisiana ex rel. Charles FREEMAN v. 4TH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA, MONROE, La.
    No. 57048.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Charles Freeman applying for Writ of Habeas Corpus, Certiorari, and Prohibition.

Writ denied: The relator is not entitled to a transcript for the purposes sought.


text:
    STATE of Louisiana ex rel. Jerry Smith NABORS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 57049.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Jerry Smith Nabors applying for Writ of Habeas Corpus.

Application denied. There is no merit to applicant’s case; the federal cases cited do not support his contentions.


text:
    Ronald J. BIANCHI and Richard C. Larison v. PATTISON PONTIAC CO., INC.
    No. 57054.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Ronald J. Bianchi and Richard C. Larison applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 319 So.2d 501.

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


text:
    Winfield A. HAYDEN v. Honorable Elmo E. LEAR, Judge, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana.
    No. 57055.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Winfield A. Hayden applying for Writ of Mandamus.

Writ denied. See State v. Wheeler, 173 La. 753, 138 So. 656 (1931).


text:
    STATE of Louisiana ex rel. William M. JOHNSON, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57064.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: William M. Johnson, Jr., applying for Writ of Habeas Corpus and Certiorari.

Writ refused. No merit in application.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Paul M. BOUNDS.
    No. 57059.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Paul M. Bounds, applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 319 So.2d 549.

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

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

BOLIN, J., takes no part.


author: DIXON, J.,

text:
    STATE of Louisiana v. Mackie STRONG.
    No. 57061.
    Supreme Court of Louisiana.
    Nov. 18, 1975.
   In re: Mackie Strong applying for Writs of Certiorari, Prohibition and Mandamus.

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

DIXON, J.,

dissents from the denial; this court was in error in its prior denial. Any interpretation of the statute which would result in a conviction makes the statute incomprehensible.


author: HOOD, Judge.

text:
    Ella BOURQUE, Plaintiff-Appellee, v. David LEGER, Defendant-Appellant.
    No. 5211.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17. 1975.
    Writ Refused Feb. 6, 1976.
    Ronald E. Dauterive, Lafayette, for defendant-appellant.
    Sandoz, Sandoz & Schiff by Leslie J. Schiff, Opelousas, for plaintiff-appellee.
    Ella Edwards, in pro per.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HOOD, Judge.

This suit originated as a separation suit instituted by Mrs. Ella Bourque Leger (now Mrs. Ella Bourque Edwards) against David Leger. It later was converted into an action for divorce, and judgment was rendered by the trial court on May 13, 1974, decreeing a divorce between the parties and awarding custody of their two minor children to defendant, David Leger. Thereafter, pursuant to appropriate pleadings filed by Mrs. Leger and after a hearing, judgment was rendered by the trial court on March 17, 1975, transferring the custody of the children to their mother. Defendant Leger has appealed from the last mentioned judgment.

The present suit was consolidated for trial and appeal with another suit instituted by David Leger against Mrs. Ella Bourque Leger, in which the plaintiff sought to obtain a divorce from the defendant. The judgments rendered by the trial court in that case are identical to those which were rendered in the instant suit. David Leger has appealed from the judgment rendered in that companion case on March 17, 1975, which awards custody of the children to Mrs. Leger. We are deciding both of these cases on this date. See Leger v. Bourque, La.App., 322 So.2d 789.

Although plaintiff in the instant suit has remarried and is now the wife of Herman R. Edwards, she nevertheless is sometimes referred to herein as Mrs. Leger.

The sole issue presented is whether the trial court erred in changing the custody of the minor children from the father to the mother.

Mr. and Mrs. Leger were married in 1969. Two children were horn of that union, one of whom is a boy, now about five years of age, and the other a girl, now about four years old. The parties separated on February 8, 1972, and a few days thereafter Mrs. Leger instituted this suit against her husband seeking a separation from bed and board, custody of the children and support. An interlocutory judgment was rendered on February 25, 1972, awarding the temporary custody of the two children to Mrs. Leger, and condemning Mr. Leger to pay support for her and for the children. Shortly after that judgment was rendered, Mrs. Leger voluntarily placed the children in the custody of Mr. Leger because she was ill and she felt that she could not properly care for them at that time. An entry on the minutes of the trial court shows that on March 10, 1972, the parties stipulated that the custody of the two children would be granted to Mr. Leger, with reasonable visitation rights to the mother, and that the previous award of alimony and child support would be reduced.

A few months later, upon application of Mrs. Leger, a rule was issued directing defendant to show cause why the custody should not be transferred to her. After a hearing, judgment was rendered by the trial court on November 9, 1972, decreeing that Mr. Leger should retain custody of the children, but increasing the amount of alimony or support which he should pay to his wife,

Plaintiff obtained the issuance of another rule in December, 1972, directing defendant to show cause why custody of the children should not be transferred to Mrs. Leger. A hearing was held, and judgment was rendered by the trial court on February 16, 1973, again decreeing that the father was to retain custody, but ordering an increase in child support which previously had been decreed by the court.

The present suit was converted into a suit for divorce early in 1974, and it was consolidated for trial with the above mentioned companion suit. Following a trial on the merits of these companion cases, judgment was rendered in each suit on May 13, 1974, granting a divorce in favor of defendant, David Leger, on the grounds that the parties had lived separate and apart for more than two years, and awarding custody of the children to him.

On October 16, 1974, Mrs. Leger obtained the issuance of another rule seeking to have the children placed in her custody. After trial of that rule, judgment was rendered by the trial court on March 20, 1975, awarding the custody of both children to the mother, Mrs. Ella Bourque Leger, granting specific visiting rights to the father, and condemning Mr. Leger to pay a specified amount per month as child support. It is from that judgment that the appeal which is before us now was taken.

The principal argument made in behalf of Mr. Leger on this appeal is that the trial court erred in failing to apply the old “double burden of proof” rule, a harsh, mechanical jurisprudential rule which developed as the result of some language used in Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955). See King v. King, 245 So.2d 560 (La.App. 3 Cir. 1971); Siggio v. Siggio, 217 So.2d 673 (La.App. 3 Cir. 1969); Cenac v. Power, 211 So.2d 408 (La.App. 1 Cir. 1968); Overstreet v. Ov erstreet, 244 So.2d 313 (La.App. 4 Cir. 1971), and Emery v. Emery, 223 So.2d 680 (La.App. 4 Cir. 1969).

Our Supreme Court, however, in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), discarded the so called “double burden of proof” rule, and instead the court set out clear and understandable guidelines which are to be followed in determining to whom custody of children should be awarded, whether the case involves the initial awarding of custody or the transfer of custody from one person to another.

As stated in Fulco the following legal principles are applicable in determining the award of custody of children: (1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children; (2) generally, it is in the best interest of the children that their custody be awarded to the mother; (3) when the trial court has made a considered decree of permanent custody, the party seeking to change that custody bears a heavy burden of proving that the best interest and welfare of the children will be served by making that change, even though it involves removing them from the environment to which they are accustomed; and (4) on appellate review, the determination made by the trial judge in a child custody matter is entitled to great weight, and his decision as to custody will not be disturbed in the absence of a clear showing of abuse of the great discretion which is vested in him. See Nethken v. Nethken, 307 So.2d 563 (La.1975); Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972); DeCelle v. DeCelle, 313 So.2d 634 (La.App. 2 Cir. 1975); Southern v. Southern, 308 So.2d 424 (La.App. 3 Cir. 1975); Hilliard v. Richard, 291 So.2d 875 (La.App. 3 Cir. 1974); LeBlanc v. LeBlanc, 293 So.2d 883 (La.App. 1 Cir. 1974); Gulino v. Gulino, 303 So.2d 299 (La.App. 1 Cir. 1974). See also, Nugent v. Nugent 232 So.2d 521 (La.App. 3 Cir. 1970).

In Estes v. Estes, supra, the trial court granted a change of custody from the father to the mother, and the court of appeal reversed. The Supreme Court reversed the court of appeal and reinstated the judgment of the trial court, affirming the change in the previous award of custody. In so doing, the Supreme Court said:

“It is true that stability in environment is an important value, so that a party seeking to change a considered determination of the permanent custody of children bears a heavy burden to justify such change as being in their best interest. .
“There is no showing that, because of this temporary custody, the children’s ultimate best welfare is not being served by returning them to their motner’s care in accord with the initial custody determination and in accord with their justified expectations. .
“Further, an appellate court must give great weight to the trial court’s considered determination of custody. If the trial court decides which parent should best have custody for the children’s sake after it has applied correct principles of law, a reviewing court should disturb such custody determination only where there is a clear abuse of the trial court’s discretion in the matter, even though reasonable minds might differ as to the children’s best interest under the variant circumstances suggested by a particular record. . . .”

In Hilliard v. Richard, supra, we affirmed a change of custody from the father to the mother, after the mother had remarried and established a new home, although we found that “There is no question that the father was providing good care of the children.” In that case, we said:

“Considering the circumstances as a whole in the light of the principles quoted above from the Estes case, we are unable to say that the district judge abused his discretion. He saw and heard these witnesses, particularly the mother and her new husband, Mr.‘Wedgeworth, and concluded the best interests of the children will ultimately be served by returning them to the mother at this time. It is a question on which reasonable minds could differ, but we conclude it is not an abuse of discretion.”

We have examined the facts in the instant suit with the above legal principles in mind.

Mrs. Leger married Herman R. Edwards on October 5, 1974. Prior to that time she was unable to care for her children properly. It was necessary for her to obtain employment after she separated from her husband, and her work made it impossible for her to remain at home with the children. She had no home of her own and was not financially able to obtain one. If she had been awarded the custody it would have been necessary for her to live with them in the home of her parents, Mr. and Mrs. John R. Bourque. Although her parents were willing for plaintiff and the children to move in with them, the record shows that Mr. and Mrs. Bourque have eleven children of their own, eight of whom are young and live with them. If plaintiff and her children would have moved in, it would have increased the number of occupants in the home to thirteen. The house in which plaintiff’s parents live is very old, consisting of six rooms and one bath. Mr. Bo-urque earns about $214.00 every two weeks. He has no other income and his wife and at least eight of his children are totally dependent upon him for support. Plaintiff would not have been able to assist in caring for any of the children since her work would have required her to be away from home every day. We agree with the trial court that under those circumstances plaintiff was unable to properly care for her children prior to her remarriage.

There has been a decided change in plaintiff’s circumstances and her ability to care for her children since October 5, 1974. At the time of the hearing which was held on January 31, 1975, she and her husband were living in an apartment in Westwego, Louisiana. The apartment has two bedrooms, a built-in kitchen, a living room, dining room and bath, and a playground is located in the middle of the apartment complex. Some children live in other apartments in that complex. Mr. Edwards works regularly as an operator for Pioneer Fishing and Rental Tools, and his income is adequate to support plaintiff and her two children. He has a 14-year old child by a former marriage who also lives in their apartment. Mrs. Leger is not employed now, and she and her husband do not anticipate that she will have to go back to work. She will be able to be with her children at all times.

Although the children have been well cared for by defendant, the conditions under which they have lived while in his custody have not been ideal.

Immediately after Mr. Leger obtained custody of the children in March 1972, following his separation from his wife, he arranged for his mother to care for them. His mother found that she was unable to do so, however, and so four days later he arranged for the children to be cared for in the home of Mr. and Mrs. Louis Doucet, who live about six miles from defendant’s home. Mr. and Mrs. Doucet cared for the children for more than two years, until October 16, 1974, when Leger removed them from the Doucet home and placed them under the care of Mr. and Mrs. James Lee Barron. Mr. Barron is Leger’s nephew, and he and his wife and their two children live about six miles from defendant’s home. The two children whose custody is at issue here were being cared for by Mr. and Mrs. Barron at the time the last custody rule was tried on January 31, 1975.

While the children were living with Mr. and Mrs. Doucet, defendant Leger visited with them almost every afternoon after work, and he took them to his home on some weekends, when the children were not visiting with their mother. On many of those weekends Leger took only his son to his home, leaving his daughter with Mrs. Dou-cet. Occasionally, however, when defendant’s mother was able to spend the weekend in Leger’s home, he would also bring his daughter to that home for that weekend.

A dispute arose between Leger and Mr. and Mrs. Doucet in October, 1974, and it was because of that disagreement that Leger removed the children from the Doucet home. The dispute was serious enough that the Doucets engaged an attorney and are threatening to sue Leger, and some animosity apparently has developed between the parties. Mrs. Doucet testified that one of the causes for the disagreement was the displeasure expressed by Leger because Mrs. Doucet had allowed plaintiff to visit with the children in the Doucet home at times other than those specified by the court order.

Since October 16, 1974, both of the children have remained under the care of Mr. and Mrs. Barron during the day. Leger picks them up every afternoon during working days and takes them to his home where the children spend the night. The next morning he feeds and dresses the children and, while en route to his place of employment, he returns them to the home of Mr. and Mrs. Barron. Occasionally when Leger gets in from work too late the children spend the night with the Barrons. Defendant Leger lives with his brother, near Opelousas. There is no woman in that home, and we have some concern as to whether Leger and his brother are able to provide adequately for the needs of these small children every night and on weekends. We also question whether the best interests of the children are being served by continuing to have them reside with foster parents or baby sitters during work days and to reside with their father and uncle during nights and weekends.

The trial judge obviously has felt from the beginning that the best interest and welfare of the children would be served by placing them in the custody of the mother, although he determined that she was unable to care for them until her remarriage on October 5, 1974. We note, for instance, that following the hearing held on September 8, 1972, the trial judge said:

“I find that it would not be in the best interest of the children for custody to be given to the wife at this time. There has been some testimony by her that she suffered from a nervous condition and was only recently discharged by the doctor, as the court understands it. The law grants a preemptory right to the wife to her children, and the court looks forward to delivering the children to her. . . . This is not to say that in the near future that the court will not grant the wife custody of the children, because the court looks forward to doing that, but I think we have to have a little more time, more visitation on the part of the wife, a reacquaintance with her children and a rejoining of their interests.
“. . . The court's plan is to get the mother and the children to know one another a little better again so that she can show them her interest, and the court will, at a later time, transfer custody to her, but at this time, does not believe it should transfer custody to the wife.” (Emphasis added).

After the hearing held on February 2, 1973, the trial judge stated in his reasons for awarding temporary custody to the father that:

“. . . Under the evidence and considering the prior testimony which I heard in this case, I don’t feel that at this time is exactly the right time to change custody. I am going to modify it however . . . . ”

In the judgment rendered following that hearing the court greatly increased the time during which the mother could visit with her children and the times when she could have the children for overnight visits.

At the conclusion of the trial of the case on its merits on February 21, 1974, the trial judge continued custody of the children in the father, but he observed that:

. . The Court is going to continue the custody of the children as they are except that during the summer the wife will be given longer visitation privileges beginning one week after the Head Start Program finishes . . . The Court still looks forward to returning the children to the custody of the mother, but anytime I have some suspect things, particularly of a mother who may be having somebody in her trailer with her children there I am just not going to do it.” (Emphasis added).

No reasons were assigned by the trial court for rendering the judgment from which the present appeal has been taken. It is apparent, however, that he determined that it was now in the best interest and welfare of the children that they be returned to the custody of the mother.

After considering all of the evidence in the instant suit, we conclude, as did the trial judge, that the best interest and welfare of the Leger children would be served by transferring them to the custody of their mother, Mrs. Leger. We make that decision after considering all of the legal principles set out in Fulco and Estes, supra, including the rule that a heavy burden rests on the party seeking a change of custody to show that it is for the best interest of the children that they be removed from the environment to which they are accustomed. Since we have determined that it is for the best interest and welfare of the children that their custody be transferred from the father to the mother, it necessarily follows that it would be detrimental or deleterious to their welfare to refuse to grant such a transfer of custody.

Our conclusion is that there was no abuse of discretion on the part of the trial judge, and that the judgment appealed from thus should be affirmed.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

Affirmed.


text:
    David LEGER, Plaintiff-Appellant, v. Ella BOURQUE, Defendant-Appellee.
    No. 5210.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Refused Feb. 6, 1976.
    Ronald E. Dauterive, Lafayette, for defendant-appellant.
    Sandoz, Sandoz & Schiff by Leslie J. Schiff, Opelousas, for plaintiff-appellee.
    Ella Edwards, in pro per.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   HOOD, Judge.

This is an action for divorce instituted by David Leger against Mrs. Ella Bourque Leger. It was consolidated for trial and appeal with a companion suit instituted by Mrs. Leger against her husband, David Leger. Plaintiff in the instant suit, David Leger, appeals from a judgment rendered on March 17, 1975, transferring the custody of the two minor children of the parties to the mother. We are rendering judgment in both cases on this date. See Bourque v. Leger, La.App., 322 So.2d 784.

For the reasons which we assigned in the companion case, Bourque v. Leger, supra, the judgment appealed from in the instant suit is affirmed. The costs of this appeal are assessed to plaintiff-appellant, David Leger.

Affirmed.


author: MILLER, Judge.

text:
    J. Daniel RIVETTE, Plaintiff-Appellant, v. Regis MOREAU, Defendant-Appellee.
    No. 5194.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975.
    Writ Granted Feb. 3, 1976.
    Daniel J. McGee, Mamou, and Andrew Vidrine, Church Point, for plaintiff-appellant.
    Sandoz, Sandoz & Schiff by Lawrence B. Sandoz, Jr., Opelousas, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiff J. Daniel Rivette appeals the judgment annulling a duplicate original statutory will presented for probate. The trial court held the testament had been tacitly revoked by destruction of a duplicate original. We reverse, dismiss the opposition and remand the case for probate of the May 5, 1964 statutory will.

J. Daniel Rivette is a nephew of Regis Moreau and a second cousin of the decedent Emily Mistric. He was both a beneficiary and the executor of the statutory will executed May S, 1964. The duplicate original of the will presented for probate was in his possession.

Regis Moreau is the widower of Emily Mistric. He testified he and his wife executed essentially identical wills on several occasions. After the May 1964 statutory wills were executed, he testified he and his wife changed their minds. Actually he testified he told his wife “the wills were not what we wanted.” Tr. 8 of the 1970 trial. Moreau contended at various times: 1) he and his wife executed -olographic wills in February 1967 which invalidated the statutory wills; 2) the statutory will was invalid because his wife could not read when the statutory will was confected; and 3) the statutory will had been tacitly revoked when one of the duplicate originals was destroyed.

According to the testimony Rivette and Moreau had some differences for some time before and after 1967.

In December 1967 Moreau presented for probate an olographic will purportedly executed in February of that year. In an ex parte proceeding, a judgment of possession was signed placing Moreau in possession of his deceased wife’s entire estate on the basis of the 1967 olographic will.

In March 1968 Rivette filed a petition seeking annulment of the 1967 olographic will and annulment of the judgment of possession based upon that will. Rivette presented a duplicate original of the 1964 statutory will for probate. Moreau answered the suit and filed opposition to the 1964 will. The 1967 olographic will was declared null and that judgment has become final. Moreau’s opposition to the 1964 statutory will is now before us for the third time.

In the first case before this court Mo-reau was granted summary judgment sustaining his opposition to the statutory will on finding the pleadings and depositions established Emily Mistric could not read when the May 1964 will was confected. On finding a genuine issue of material fact existed as to Emily Mistric’s ability to read at the relevant time, we reversed. Rivette v. Moreau, 225 So.2d 762 (La.App. 3 Cir. 1969).

When the case reached the trial court, Moreau filed an exception of no cause of action urging invalidity of the 1964 statutory will, contending it had been tacitly revoked by destruction of the duplicate original of the 1964 statutory will. The court minutes reflect the exception was heard on October 17, 1969 and was referred to the merits. Extensive testimony on this issue was presented by deposition and by witnesses at the 1970 trial. The trial court did not reach the issue relating to tacit revocation grounded on alleged destruction of the will, for the will was invalidated on finding Mrs. Mistric could not read when the statutory will was confected. Rivette appealed.

On finding Emily Mistric could read when the statutory will was confected we reversed the trial court judgment. Estate of Moreau v. Moreau, 261 So.2d 293 (La.App. 3 Cir. 1972). We remanded the case for probate of the May 1964 statutory will.

Following our 1972 decision Rivette attempted to probate the 1964 statutory will. He was again met with a new opposition in which Moreau contended the 1964 testament had been tacitly revoked by destruction of the duplicate original. Rivette filed an exception of res judicata which was overruled by a trial judge other than the judge who presided over the last trial. When the merits of the issue came up relating to Moreau’s attack on the will based on tacit revocation, the trial judge expressed doubt concerning the prior trial judge's ruling on the exception of res judi-cata, but allowed evidence on the issue. On the merits he annulled the statutory will and refused to probate it.

We do not reach the merits of the recent attack based on tacit revocation. We hold the trial court decision to relitigate the issue of revocation must be reversed.

Relitigation of the same issue between the same parties is to be prevented. The exception of res judicata presents that issue as does the “law of the case” principle. “The law of the case” may be more appropriate than res judicata to describe the relation between prior judgments by trial and appellate courts within the same case. In Petition of the Sewerage & Water Board of New Orleans, 278 So.2d 81 (La.1973) the force of this principle was recognized to prevent piecemeal trial of defenses even where the correctness of the former decision was doubted. In its discretion the court may reject palpable error resulting in manifest injustice.

Plaintiff’s plea of res judicata squarely raised the issue of relitigation of a matter previously presented for decision. Tacit revocation was an issue raised by Moreau’s exception which had been referred to the merits. Extensive evidence in support of that defense was adduced by depositions and witnesses presented at the 1970 trial. Although the trial court did not reach that issue because the will was annulled on the ground Mrs. Mistric could not read when the statutory will was con-fected, the issue had been presented to the trial court. It could have been presented to this court as a basis for supporting the trial court judgment annulling the statutory will.

Moreau contends he should not be barred from raising the issue now because the trial and appellate court opinions were silent on the issue of tacit revocation. This court specifically stated the “only issue presented here is the issue of whether or not Emily Mistric was able to read at the time of execution of the statutory will.” 261 So.2d 293 at 295 [4],

This court’s statement of “the only issue presented” refers to the only issues submitted by the attorneys. Emily Mistric’s ability to read was the only issue briefed and argued to this court on the appeal. If Mo-reau was convinced he had more than one basis for sustaining the trial court judgment which annulled the 1964 statutory will, it was his obligation to brief and argue it. Alternatively, Moreau could have applied to this court for rehearing contending the 1964 statutory testament had been tacitly revoked. That issue had been thoroughly tried and presented to the trial court for decision. The fact that the trial court did not reach the issue does not entitle Moreau to revive the issue and re-litigate it.

We recognize the line of cases resisting interpretation of silence as concluding issues and therefore rights between the parties. See Guilbeau v. Guilbeau, 308 So.2d 435 (La.App. 3 Cir. 1975). We distinguish these cases because they involve rights between multiple parties rather than multiple issues between the same parties such as we have here.

Many cases have followed Villars v. Faivre, 36 La.Ann. 398 (1884) and maintained the exception of res judicata as to issues not discussed in judgments rendered in a prior suit.

Our previous judgment concluded all issues raised by the pleadings filed by Riv-ette and Moreau. We therefore do not reach the issue concerning legal presumptions applicable in the probate of a duplicate original in the hands of a beneficiary but not in testatrix’s possession at the time of her death.

The trial court judgment annulling the 1964 statutory will is reversed and set aside. We note the absence of a proces verbal, which we cannot supply, and we are required to remand this case one more time. The opposition of Regis Moreau to the probate is concluded as to all issues raised therein and is dismissed. The will contest is over. We remand this case to the district court for probate of the statutory will.

A judgment of possession was rendered on January 23, 1968 placing Regis Moreau in possession of the entire estate. The 1967 olographic will on which that judgment was based has been declared null and that judgment has become final. Since the 1967 olographic will was void, the January-23, 1968 judgment of possession is also null and is set aside.

Defendant appellee is to pay all costs which have been incurred to date including trial and appellate court costs.

Reversed and remanded.


text:
    ESTATE of Emily Mistric MOREAU. J. Daniel RIVETTE, Plaintiff-Appellant, v. Regis MOREAU, Defendant-Appellee.
    No. 5195.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Dec. 17, 1975,
    Writ Granted Feb. 3, 1976.
    Daniel J. McGee, Mamou, and Andrew Vidrine, Church Point, for plaintiff-appellant.
    Sandoz, Sandoz & Schiff by Lawrence B. Sandoz, Jr., Opeloussa, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

This proceeding was consolidated for trial and appeal with Rivette v. Moreau, 322 So.2d 790 (La.App. 3 Cir. 1975) being handed down this date. For the reasons assigned therein, the trial court judgment is set aside and the case is remanded. Defendant appellee is to pay all costs.

Reversed and remanded.


author: CULPEPPER, Judge. MILLER, Judge

text:
    SALTER BUS LINES, INC., Plaintiff and Appellant, v. Willard A. LEITCH, and State Farm Mutual Automobile Insurance Company, Defendants and Appellees.
    No. 5144.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 1975.

      Gold, Hall, Hammill & Little by James D. Davis, Alexandria, and Holloway, Baker, Culpepper & Brunson by Herman A. Cas-tete, Jonesboro, for plaintiff-appellant.
    Gist, Methvin & Trimble by Alonzo P. Wilson, Gravel, Roy & Burnes by J. Michael Small, Alexandria, for defendants-appellees.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ-
   CULPEPPER, Judge.

This case was consolidated for trial and appeal with Martha N. Robinson et al. v. Salter Bus Lines, Inc., et al., La.App., 322 So.2d 799, and Gary A. Leitch v. Salter Bus Lines, Inc., La.App., 322 So.2d 799, in which separate decisions are being rendered by us this date. These three companion cases arise out of an intersectional collision between a bus owned by Salter Bus Lines, Inc., being driven by Sim T. LaCroix, and a Pontiac automobile owned by Willard A. Leitch and being operated by his then 17 year old minor son, Gary A. Leitch. The Robinsons were passengers in the bus. The district judge held the accident was caused solely by the negligence of the bus driver. Judgments were rendered in the three cases accordingly. All parties cast have appealed.

The accident occurred in Alexandria, Louisiana at the T-intersection of U. S. Highway 71, which runs generally north and south,-with Upper Third Street, which runs from the highway toward the east. It was during hours of darkness and the weather was clear.

The bus driver testified that he was proceeding on Highway 71 in a southerly direction intending to turn left on Upper Third Street. As he drove into the left turning lane on the highway, he saw the Leitch automobile on Highway 71 approaching the intersection from the south. He says that when he first saw the automobile, it was near the crest of a railroad overpass, which various witnesses testified is anywhere from 325 to 1100 feet south of the intersection. The bus driver testified he assumed he had time to make his left turn safely into Upper Third Street. He slowed down, but did not stop. Before clearing the intersection, the right rear portion of his bus was struck by the Leitch automobile, the point of impact being in the right side of the north bound lane of travel of Highway 71.

Young Leitch testified that as he came over the crest of the overpass he was going about 45 miles per hour. He saw the bus entering the left turn lane on Highway 71. The bus slowed down, and Leitch assumed it would stop to yield the right of way. Leitch says the bus did not stop, but instead turned left across his path. He immediately applied his brakes and cut to the left but was unable to stop in time to avoid striking the right rear of the bus.

At the conclusion of the trial, the district judge dictated into the record the following reasons for judgment, which are amply supported by the evidence:

“My first impression when the bus driver testified was that he was guilty of negligence in making a left turn. I am still convinced of that, but from his testimony I gathered that there was going to be some proof that this boy was traveling at a highly excessive rate of speed and he said ninety miles an hour. If he had been traveling ninety miles an hour I think he would have been guilty of contributory negligence. The proof, however, is that he was traveling between forty-five and fifty miles an hour. That when he perceived the bus and saw that it was going to cross his path he applied his brakes, tried to stop and he could not. I find no negligence on behalf of Gary Leitch.
“I find that the accident was caused by the sole negligence of the bus driver.
“And I cannot follow his (defendant’s accident expert, Mr. Heard) reasoning that there are certain distances back where he could hit the middle of the bus but there are no distances back where he could not hit the rear of the bus. It is just not physically possible to make that determination. But I do not think his testimony can in any way help us resolve the issues in this case. I think the bus driver turned at an inopportune time. The driver of the other vehicle did not have time to stop, although he did what a reasonable prudent vehicle driver would have done under the circumstances.”

The principal argument of the bus company on appeal is that during the trial young Leitch testified he was near a certain speed sign on the east side of the highway at the time he first realized the bus was going to turn left. Salter contends this shows young Leitch saw the bus turning in plenty of time to stop or avoid the accident. After the trial, counsel for the bus company had a photograph taken of this sign and measurements made to show its distance from the intersection. He attaches the photograph to his brief filed in this Court, and makes statements in his brief as to the measured distance, although admitting that these are not contained in the record. Of course, we cannot consider the photograph nor the measurements not shown by the record.

In its brief filed in this Court, the bus company requests in the alternative that we remand this case for admission of the evidence as to the distance of the speed sign from the intersection. We reject this request. It is not as clear as plaintiff suggests that Leitch said he was at the speed sign when he first saw the bus start its turn. There are several signs along the highway to which Leitch could have been referring. Furthermore, plaintiff did not ask for a rehearing to introduce this alleged new evidence. Viewed as a whole, we do not think this is a proper case for the exercise of our equitable discretion to remand.

In the present case the defendant, Willard A. Leitch, and his subrogated collision insurer, State Farm Mutual Insurance Company, filed reconventional demands for property damage to the Leitch vehicle. The district court awarded judgment on these reconventional demands against Salter Bus Lines, Inc. Having concluded, for the reasons set out above, that the accident was caused solely by the negligence of the bus driver, the judgments in favor of the plaintiffs in reconvention must be affirmed.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

Affirmed.

MILLER, J., dissents and assigns written reasons.

HOOD, J., dissents for reasons assigned by MILLER, J.

MILLER, Judge

(dissenting in part).

I respectfully submit the northbound motorist Leitch was negligent and his negligence was a legal cause of the accident. I agree Salter’s driver was negligent and that the case should not be remanded.

Although the majority erred in stating plaintiff did not ask for a rehearing to introduce allegedly new evidence [this was listed as one ground for both applications for a new trial — Tr. 35 and 38], the trial court’s refusál to grant the new trial is well supported in the record. At Tr. 132 Leitch cleared up his testimony concerning the signs located near his position when the bus allegedly commenced its left turn. The signs Leitch referred to were shown in exhibits S-10 and 11 (Salter’s photos) and those signs were located closer to the intersection than the speedlimit sign allegedly located far from the intersection. I firmly agree the case should not be remanded.

There are a number of relevant physical facts and relative speeds established in the record which are not referred to in the majority opinion. The Salter bus is the standard Greyhound or Trailway bus of some ten years ago. It is forty feet long, chrome to a height of some six or eight feet, then red stripes and cream colored above that. The extensive lighting, standard for that type bus, was in operation before and at the time of the accident.

The bus was completing a scheduled run from El Dorado, Arkansas with Alexandria its final destination. Highway 71 is the main U.S. Highway between the two points and Third Street is the primary thoroughfare taking traffic east from 71 into Alexandria’s main business district. Highway 71 has one northbound lane and one southbound lane, each of which is about 12 feet wide, but at the approaches to this intersection, a third lane is added together with several islands to permit traffic turning left off 71 and turning left onto 71 to enter without requiring traffic on 71 to stop for them.

Because of the confinement in these islands and the abrupt turn, the bus driver’s and Leitch’s testimony that the bus approached the turn at a slow speed must be accepted. The driver testified he had to thread his way between the islands and was in first gear. He commenced his left turn at a speed of 2 to 3 miles per hour. Tr. 52-4. The bus driver increased his speed to 10 mph to clear the intersection and was in the process of shifting to second gear when the extreme right rear of his bus was struck by the extreme right front of Leitch’s automobile. The investigating officer located the point of impact as one or two feet west of the extreme right edge of the northbound Leitch’s lane. Tr. 80. It is undisputed the accident would not have occurred had Leitch been four feet to his left, or had the bus moved forward four more feet.

It is important to note neither the trial judge nor the majority finds the bus maneuver to have been made faster than the driver’s stated top speed of 10 mph. A careful study of the photographs of the six islands located at the intersection support the bus driver’s conclusion it is difficult to make the turn at a faster speed without striking the islands — and it is undisputed the bus cleared the islands while threading its way on this occasion.

It is also important to note neither the trial court nor the majority find the northbound Leitch to have been going slower than his stated speed of 45 mph. The bus driver testified he overheard Leitch tell Bobby Brinkerhoff, a friend of his, immediately after the accident he was only doing ninety. .When Bobby told him to be quiet about it, Leitch said “well, eighty or seventy, then.” Tr. 56. This was not disputed, and Leitch admitted talking to Bobby after the accident. Tr. 75. Leitch also admitted Bobby was available to be called as a witness.

While the investigating officer “guessed” the intersection was only 3S0 feet north of the overpass, 1100 feet was established as the most credible estimate — and neither the trial court nor the majority found as a fact the intersection was less than 1100 feet from the overpass.

Leitch testified he was alone in his car on his way to meet a friend and remembers coming over the overpass.

Q. As you came over the overpass, did you see this bus down below?
A. Yes, sir, I seen it.
Q. All right, well, did you have any problem seeing it at all?
A. No.
Q. Was it — Did it have its headlights on?
A. Yes, sir.
Q. Didn’t it have a left turn signal blinking ?
A. Yes, sir.
Q. And you saw the lights on top of the bus and the lights on the side?
A. Yes, sir.
Q. You saw it make it(s) left turn from Highway 71 on to Upper Third Street ?
A. Uh — yes, sir.
Q. Did you see that? — All right, now, did you see the left turn signal of the bus on before it began its turn?
A. Yes, sir.
Q. And you actually saw the bus while it was turning?
A. Yes, sir, there for a minute.
Q. And you saw that the front part of the bus actually got on to Upper Third Street?
I can’t recall that, Your Honor — I mean, sir. A.
All right. Well, isn’t it true that the front of your car struck the extreme right rear of the bus behind the dual wheels ? Q.
A. Somewhere around that area.
Q. And wasn’t it the right front of your car that struck it?
A. Yes, sir.
Quotation from Tr. 71 and 72.
******
Q. Up until the time that you applied those brakes, had you ever slowed down before that?
A. No, sir, because the bus, when I seen him, when I come off the bridge, he was just coming into the lane or had just been in there just a minute. He wasn’t to the turn yet, and I was watching him to see if he was slowing down. He looked like he was going to stop because he slowed down and was barely rolling, so I just kept on my steady speed. And then he just — I got to about where there was a speed limit sign [later corrected to other signs nearer the intersection], I remember a speed limit sign or something on the right, and he pulled out and I didn’t have time to stop.
Q. Are you saying you didn’t have time to apply your brakes?
A. I had time to apply my brakes but (the bus) didn’t give me enough distance to stop the car.
Q. Can you tell us in feet how close you were to that bus when you applied your brakes?
A. I wasn’t too far from it, that’s for sure.
Q. When you say “not too far,” do you mean a car length “or two car lengths ?
A. No, I was — I’d say about — 20 feet by the time — (Interrupted)
Q. You were 20 feet when you first applied your brakes ?
A. Yes, sir, by the time — reaction time and everything else, it would be about 20 feet from him.
Q. And the bus was not traveling over ■ 5 or 10 miles an hour?
A. It wasn’t going very fast. I don’t know how fast he was going.
Q. And you never did see (the bus) come to a complete stop ?
A. No, sir.
Quotation from Tr. 74 and 75.

The investigating officer checked for skidmarks and found none leading to the point of impact. Tr. 81. Leitch went to the scene of the accident two days later and found no skidmarks on the road. Tr. 74.

There is substantial and impressive expert testimony in the record by Mr. Ray Heard, and his testimony setting forth stopping distances and feet per second trav-elled by cars or buses travelling at 45-50 mph and 10 mph is not disputed.

Including reaction time and time for perception, a driver traveling north on U.S. 71 at a speed of 45 mph could stop within 190 feet from the time he perceives danger. Tr. 106.

At 45 mph Leitch was travelling 66 feet per second, and at 50 mph — 73 feet per second. At 5 mph the bus was moving 7.35 feet per second and at 10 mph it was moving 14.7 feet per second.

After Leitch saw or should have seen the bus commence its left turn (and Leitch had been aware of the proposed left turn since cresting the overpass at least 1100 feet away), the bus moved 50 to 55 feet before its extreme right rear was struck by the extreme right front of Leitch’s car.

Assuming the bus threaded its way between the islands at the highest of its estimated speeds (and the evidence is uniform the bus started its turn at a much slower speed), Leitch had at least 3.3 seconds to react. In 3.3 seconds and at 45 mph Leitch travelled 218 feet — at 50 mph he travelled 241 feet before striking the rear of the bus. Had Leitch slowed before striking the bus [a possibility rejected by the trial court because of the extensive damage to Leitch’s car as revealed by the photographs — Tr. 104], Leitch would have been slightly closer to the intersection. Also relevant here is Leitch’s testimony he didn’t apply brakes until twenty feet from impact, and the fact that no skidmarks were found.

The situation did not require Leitch to stop. Taking Leitch’s testimony and the physical facts, he had at least 218 feet within which to slow his car sufficiently to allow the slow moving left turning bus to move forward an additional four feet. Instead Leitch plowed into the bus without substantially slowing before impact.

The trial court and the majority have rejected Heard’s well documented opinion that under the physical facts and conditions established by the parties, had the bus entered the intersection at a time when Leitch could not have applied his brakes until he was 20 feet from impact, Leitch’s car would have struck the front part of the bus. I respectfully submit the majority has not addressed this issue.

Since Salter’s driver was negligent I would affirm the trial court judgment denying Salter’s claim for damages to its bus. However, Salter is entitled to half its written subrogation claims for the amounts it paid its passengers. These claims are the subject of one of the companion suits.

I respectfully dissent from the holding that Leitch was free from negligence.


text:
    Martha N. ROBINSON et al., Plaintiffs and Appellees, v. SALTER BUS LINES, INC. et al., Defendants and Appellants.
    No. 5145.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 1975.
    Rehearing Denied Dec. 17, 1975.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for plaintiffs-appellees.
    Gist, Methvin & Trimble by Alonzo P. Wilson, Gravel, Roy & Burnes by J. Michael Small, Alexandria, for defendants-appellants.
    Knight E. Doggett, Alexandria, for plaintiff-appellee.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

This is a companion case to Salter Bus Lines, Inc. v. William A. Leitch et al., La. App., 322 So.2d 793 in which a separate judgment is being rendered by us this date. The plaintiffs in the present case are Martha N. Robinson and Beverly Robinson, individually and as natural tutrix of her minor son, Demetric Madison. They were passengers in the bus. They sued the bus company and its insurer, who in turn filed a third party demand against Leitch and his insurer. Prior to trial, the Robinsons settled their claim against the bus company to whom they subrogated their respective claims. Judgment was rendered in the present case rejecting the demands of the plaintiffs.

For the reasons assigned in the companion case of Salter Bus Lines, Inc. v. Willard A. Leitch et al., the judgment appealed herein is affirmed. All costs of this appeal are assessed against the appellants.

Affirmed.

MILLER, J., dissents and assigns written reasons.

HOOD, J., dissents for the reasons assigned by MILLER, J. and both voted for a rehearing.

MILLER, Judge

(dissenting).

For the reasons assigned in my dissent in Salter Bus Lines, Inc. v. Leitch, 322 So.2d 793 (La.App. 3 Cir. 1975, #5144), I respectfully dissent.

Judgment should be rendered casting Leitch for one-half the damages resulting from the mutual fault of Salter Bus and Leitch. Leitch was negligent in failing to slow when he saw or should have seen the bus commence and almost complete its left turn.

I respectfully dissent.


text:
    Gary A. LEITCH, Plaintiff and Appellee, v. SALTER BUS LINES, INC., Defendant and Appellant.
    No. 5146.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 1975.
    Rehearing Denied Dec. 17, 1975.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendant-appellant.

      Gravel, Roy & Burnes by J. Michael Small, Alexandria, for plaintiff-appellee.
    Before HOOD, CULPEPPER, MILLER, DOMENGEAUX, and WATSON, JJ-
   CULPEPPER, Judge.

This is a companion case to Salter Bus Lines, Inc. v. Willard A. Leitch and State Farm Mutual Automobile Insurance Company, 322 So.2d 793, in which a separate judgment is being rendered by us this date. In the present case, Gary Leitch, after becoming 18 years of age, filed suit against Salter Bus Lines, Inc. and its insurer for damages for personal injuries. The district judge awarded plaintiff the sum of $1,000. The amount of this award has not been made an issue on appeal by either plaintiff or defendants.

For the reasons stated in the companion case of Salter Bus Lines, Inc. v. Willard A. Leitch, et al., the judgment appealed in the present matter is affirmed. All costs of this appeal are assessed against the appellant.

Affirmed.

MILLER, J., dissents and assigns written reasons.

HOOD, J., dissents for the reasons assigned by MILLER, J. and both voted for a rehearing.

MILLER, Judge

(dissenting).

For the reasons assigned in my dissent in Salter Bus Lines, Inc. v. Leitch, 322 So.2d 793 (La.App. 3 Cir. 1975, # 5144), I respectfully dissent.

Leitch’s negligence in failing to slow when he saw or should have seen the bus commence and almost complete its left turn, bars his recovery of the $1,000 in damages sustained by him.

I respectfully dissent.