author: SANDERS, Chief Justice. TATE, Justice PER CURIAM.

text:
    STATE of Louisiana v. Calvin Joseph HEBERT.
    No. 60836.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 10, 1978.

      Risley C. Triche, Napoleonville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., George W. McHugh, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

A grand jury indicted the defendant, Calvin Joseph Hebert, for the second degree murder of his wife, Loula Lewis Hebert, a violation of LSA-R.S. 14:30.1. A jury found him guilty of manslaughter. The court sentenced him to nine years’ imprisonment.

The defendant appeals. He relies upon five assignments of error for reversal of his conviction and sentence. He specifically abandons Assignments of Error Nos. 5 and 6.

We adduce the following context facts:

The defendant argued with his wife as he undressed for bed. When he took a gun from his belt and moved to place it on the dresser, his wife was shot in the forehead. She died several hours later. The factual issue at the trial was whether the shooting was culpable or accidental.

ASSIGNMENTS OF ERROR NOS. 1, 2, 3, AND 7

The defense contends that the court improperly admitted three inculpatory statements into evidence since the police obtained them in violation of his constitutional right to counsel.

When Officer Wiltz arrived at the defendant’s home in response to a radio call, the defendant immediately told him that he shot his wife. To avoid confrontation between the defendant and his wife’s family, Officer Wiltz asked him to wait for him at the police station. (Officer Wiltz testified that he had no grounds to arrest him at that time.)

He complied. Once at the station the defendant helped himself to coffee and used the telephone. (Because he was a former part-time officer he was familiar with the station.) He telephoned his attorney, Earl H. Willis, who advised him to remain silent until he arrived the next day.

Police Radio Dispatcher Neveu overheard the defendant say “Willis” on the phone. He knew Willis was an attorney. However, Dispatcher Neveu had no knowledge of the content of the conversation.

Officer Wiltz contacted Dispatcher Neveu and asked him to take a voluntary statement from the defendant. He then asked the defendant if he wanted to give one, and he answered yes. Dispatcher Neveu read the defendant his right to have an attorney present and his privilege to remain silent from the voluntary statement form. The defendant responded that he understood his rights and agreed to give a statement. He did not request the presence of his attorney. At 2:30 a. m., he made a statement which he later recanted. (The State did not introduce this statement.)

When Chief Martin arrived at the police station at 3:30 a. m., he arrested the defendant for attempted murder and discharging a firearm within the corporate limits and advised him of his Miranda rights. Officers Bonvillian, Wiltz, and Dispatcher Neveu were present. When Chief Martin told him that he could have an attorney appointed if he could not afford one, the defendant said that he had already made a telephone call to Mr. Willis, his attorney. Chief Martin then inquired if he wanted him present, and the defendant said not at this particular time. (However, the defendant testified that when he told him that he spoke with Mr. Willis, Chief Martin told him that he could not afford a retained attorney and urged him to make a statement.) The defendant never informed Chief Martin of what Mr. Willis said.

Chief Martin then asked the defendant if he understood his rights and if he wanted to make any statements. The defendant replied that he had just given Dispatcher Neveu a statement. After Chief Martin read this statement, he searched and handcuffed the defendant. He instructed Officer Wiltz to book him.

Later, Chief Martin and Officer Bonvilli-an interrupted the booking with the news that the defendant’s wife had died. After a few minutes, Chief Martin told him that he was now charged with murder, and again read him his Miranda rights. In response, the defendant stated that he understood his rights, wished to waive them, and wanted to change his original story and tell the truth. He then signed a statement of his rights and a waiver thereof which was first read to him. He did not request the presence of his attorney.

At 4:30 a. m., the defendant gave Chief Martin and Officers Wiltz and Bonvillian an oral statement (S-14). In it he admitted holding the gun at chest height and pointing it at his wife. “(M)y finger just pulled the trigger. I didn’t want to hurt that woman.”

Wishing to get the defendant’s statement on paper, Officer Wiltz took a written statement (S-3 and S-3A). He read the defendant his rights (including his right to remain silent and his right to appointed counsel) and a waiver of those rights which were included on the statement form. He stated that he understood what was read. The defendant did not request the advice or presence of counsel. In his statement he explained that with his hand on the trigger and facing his wife, he pulled the trigger. “I didn’t know how I did it, I didn’t think I had pulled the trigger.” Officer Wiltz read the statement back to the defendant and he signed it at 5:30 a. m.

Officer Wiltz re-booked him for murder. When he completed the procedure, he advised the defendant of his right to use the telephone. The defendant replied that he had already phoned his attorney. He did not inform Officer Wiltz of his attorney’s advice.

At 10:00 a. m., Chief Martin and Officer Resweber met with the defendant to get a taped statement from him. Again, Chief Martin read the Miranda rights and asked if he understood them. The defendant answered that he did. At this point, the tape is inaudible. However, the defendant later explained that he took the gun out of his belt, held it up, and squeezed the trigger. In addition, he stated that he didn’t intend to harm his wife.

The defendant specifically argues that he did not voluntarily, knowingly, or intelligently waive his right to counsel, and that his desire to remain silent until speaking with an attorney was not “scrupulously honored.” For support, he points to the following: that he is illiterate; that when Chief Martin first advised him of his rights, Chief Martin told him to give a statement because he could not afford a retained attorney; that he made the oral and written statements immediately after he learned of his wife’s death, and thus, while “distraught with emotion”; that there was a lapse in the tape statement following a reading of his rights.

For a confession or inculpatory statement to be admissible, the State must prove that it was made freely and voluntarily, and not made under the influence of fear, duress, intimidation, threats, menaces, inducements, or promises. LSA-R.S. 15:451; State v. Adams, La., 347 So.2d 195 (1977). The trial court’s ruling as to the voluntariness of a confession or inculpatory statement will be affirmed on appeal absent palpable error. State v. Ross, La., 343 So.2d 722 (1977); State v. Stewart, La., 325 So.2d 819 (1976); State v. Sims, La., 310 So.2d 587 (1975). In State v. Cotton, La., 341 So.2d 355 (1976), this Court stated:

“We do not believe that the fact that a defendant has an attorney means that law enforcement officials cannot procure a statement of any kind from him without prior notice to, if not the consent of, the attorney. United States v. Cobb, 481 F.2d 196 (3rd Cir. 1973), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Springer, 460 F.2d 1344, (7th Cir. 1972), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972).”

The trial judge held the three statements admissible, stating: “ . . . taking the totality of everything, the defendant knew of his right to counsel and his right to remain silent, and . he voluntarily gave up those rights.” (Tr. 392-393) In so ruling, he accepted the testimony of the four officers.

The trial court properly admitted the defendant’s statements. The defendant was a part-time officer under Chief Martin for eight months. He admitted knowing that he had the right to remain silent and the right to counsel. Moreover, he was informed of his rights several times within eight hours.

The defendant gave a statement to the officers everytime he was asked with one exception. The first time Chief Martin read him his rights and asked if he wanted to make a statement, the defendant said he had already given one to Dispatcher Neveu. We do not construe this, as the defendant does, as expressing his desire to remain silent until he spoke with an attorney. This is especially true since he specifically stated that he did not want his attorney at that time. Nevertheless, Chief Martin ceased all interrogation and only resumed an hour later when he charged the defendant with murder. Before questioning him on this charge, Chief Martin again read him his rights. The defendant stated that he understood them and wished to make a true statement. This is not an instance where the police failed to “scrupulously honor” a defendant’s right to remain silent. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The record clearly indicates that the defendant cooperated with the officers at all times.

Because he may have given the statements while emotional does not render them inadmissible. His comprehension was unimpaired, and he responded coherently. See State v. Weeks, La., 345 So.2d 26 (1977).

We hold that the statements were properly admitted.

These assignments of error are without, merit.

ASSIGNMENT OF ERROR NO. 4

The court denied the admission of D-5, the notes of Ralph Huval, a criminologist, on his test results of the murder weapon. The defense avers that the notes were critical to his defense of accidental shooting since they would prove that the gun had a hair-trigger and would counter the report of the State’s expert.

Ralph Huval, under subpoena by the State, tested the defendant’s gun. However, due to his inability to testify at trial, Jim Churchman examined the gun and testified for the State. His tests revealed the following data on the weapon’s trigger tension: with the hammer cocked (single action) five to six pounds of pressure were needed to fire the gun, and with the hammer at rest (double action) fourteen to seventeen pounds were needed. These results, in addition to other findings, indicated that the gun did not accidentally discharge. Further, Churchman stated that when he and Huval compared their results, there were no gross discrepancies.

The defense called Kenneth Cockerham, a criminologist who worked with Huval. He identified D-5 as Huval’s notes which he had not yet put in final form for the laboratory files. Cockerham read D-5 to the jury. D-5 revealed Huval’s test results as follows: four to five pounds needed to fire for single action, and fourteen to fifteen pounds for double action. Immediately after this reading, the defense offered these notes as a business entry exception to the hearsay rule.

We pretermit the question of admissibility since we conclude that the defendant was not prejudiced by the court’s failure to admit them. See LSA-C.Cr.P. Art. 921. The jury learned of Huval’s test results when Cockerham read D-5. This reading better informed the jury of Huval’s data than their reading would have because the notes contain many abbreviations which Cockerham was able to translate. Moreover, Huval’s tests on trigger tension were consistent with those of Churchman, the State’s expert. Thus, they did not contradict the State’s evidence.

This assignment of error is without merit.

For the reasons assigned, the defendant’s conviction and sentence are affirmed.

TATE, J., also assigns concurring reasons.

TATE, Justice

(concurring).

The evidence as a whole shows that, although the defendant had consulted a lawyer, the law enforcement officials did not know that the lawyer was retained or that he had advised the accused to make no statement. Thus, the state did not attempt to subvert the right to counsel, in derogation of the accused’s right to effective assistance of counsel. See State v. Weedon, 342 So.2d 642 (La.1977) and dissenting views in State v. Cotton, 341 So.2d 355 (La.1976).

The writer therefore concurs.

ON APPLICATION FOR REHEARING

PER CURIAM.

In his application for rehearing, the defendant points out an inadvertent erroneous statement in our majority opinion. The inadvertency occurred in the discussion of Assignment of Error No. 4. This concerned the trial court’s ruling that certain test notes of a criminologist (Huval), sought to be introduced by the defendant, were inadmissible as business records.

Upon our finding that Cockerham had testified as to substance of Huval’s test notes, we did not pass upon the admissibility of the evidence, since we thought the jury had already heard it. However, it is correctly pointed out that, before Cocker-ham testified, the jury had been retired. Therefore, the jury did not hear the testimony.

Nevertheless, the trial court correctly ruled that the test notes, containing notations as to test results, were not admissible as business records, as an exception to the hearsay rule. These notes, as to which the opposing party would have no opportunity for cross-examination, do not meet the criteria of the sort of permanent record made in the ordinary course of business by a person unavailable to testify that permits introduction of business records in limited circumstances. State v. Monroe, 345 So.2d 1185 (La.1977); Pugh, Louisiana Evidence Law 476-90 (1974).

As we stated in Monroe, 345 So.2d 1189-90, “ * * * use of the business records exception against the accused in criminal prosecutions should be limited to situations in which the person making the record is genuinely unavailable for trial, either because his identity is unknown or because diligent efforts have failed to procure his attendance as a witness.”

Here, the absent witness Huval was shown to be in Ohio on the date of the trial, having gone there a day or so before. Hu-val had been issued a subpoena at the instance of the state. Although the defendant’s counsel knew the day before that the state was going to rely upon the testimony of another expert (Churchman), instead of Huval, due to the latter’s absence, he made no attempt to secure a recess, nor any showing that he was surprised or prejudiced by the state’s use of Churchman’s expert testimony instead of Huval’s as originally intended by the state.

As our original opinion indicates, further, Huval’s test notes showed results generally consistent with the other state expert (Churchman) who did testify. Huval’s notes and the other expert’s testimony both indicated that the trigger-pull tension required to fire the weapon was inconsistent with the accused’s defense of its accidental discharge.

REHEARING DENIED.

      . This is the first contested statement.

      . This is the second contested statement.

      . This is the third contested statement.

      . We there stated, 345 So.2d 1189: “In criminal trials, however, the accused’s constitutional rights to confront and cross-examine the witnesses against him are of paramount concern.” While here the state objected to introduction of this un-cross-examined testimony, we see no overriding reason under present circumstances why the same rule should not apply to both parties in criminal trials.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Harold BATISTE.
    No. 61040.
    Supreme Court of Louisiana.
    March 15, 1978.
    John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Oscar GOINS.
    No. 61051.
    Supreme Court of Louisiana.
    March 15, 1978.
    Bernard E. McLaughlin, Jr., Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Charles BARBARIN.
    No. 61058.
    Supreme Court of Louisiana.
    March 15, 1978.
    Milton P. Masinter, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

GALOGERO, J., dissents.


text:
    STATE of Louisiana v. Henry MAJOR, Jr.
    No. 61065.
    Supreme Court of Louisiana.
    March 15, 1978.
    Alton T. Moran, Allen J. Bergeron, Jr., Sidney M. Blitzer, Jr., John C. Miller, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Robert H. Hester, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Linda DICKERSON.
    No. 61066.
    Supreme Court of Louisiana.
    March 15, 1978.
    Cyrus J. Greco, Greco & Thomas, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren Hebert, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Ronald J. DANIELS.
    No. 61068.
    Supreme Court of Louisiana.
    March 15, 1978.
    Rehearing Denied April 6, 1978.
    John E. Miller, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Clarence WILLIAMS.
    No. 60948.
    Supreme Court of Louisiana.
    March 15, 1978.
    John M. Lawrence, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Dist. Atty., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Kimberly BISHOP, Lynn Lewis, Tonya Baker and Sue Gamble.
    No. 60575.
    Supreme Court of Louisiana.
    March 17, 1978.
    Sam N. Gregorio, Gregorio & Frazier, Shreveport, for defendants-relators.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Bullers, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

Defendants, Kimberly Bishop, Lynn Lewis, Tonya Baker and Sue Gamble, were charged with violations of the Alcoholic Beverage Control Law, La.R.S. 26:88(8), which, in pertinent part, provides:

“No person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
« * * *
“(8) Employ or permit females, commonly known as B girls, to solicit patrons for drinks and to accept drinks from patrons and receive therefor any commission or remuneration in any other way.”

The bills of information recited that each defendant, “as an employee of Black Knight Lounge, did solicit patrons for drinks and accept drinks from patrons and receive remuneration therefor on the licensed premises . . The defendants unsuccessfully moved to quash the bills in the trial court. We granted writs. The bills of information do not charge defendants with a crime known to the law of Louisiana. The pertinent statute, La. R.S. 26:88(8), condemns employment of B girls, or the granting of permission to them, to solicit and accept drinks for commission on a licensed premises. The bills of information merely charge defendants with acting as B girls, i. e., soliciting and accepting drinks for pay, and do not charge them with employing or permitting B girls to ply their trade. See, State v. Daye, 243 La. 725, 146 So.2d 786 (1962).

The judgment of the district court is vacated. Defendants’ motion to quash is granted.


text:
    STATE of Louisiana v. Terry Wayne BAKER.
    No. 60897.
    Supreme Court of Louisiana.
    March 17, 1978.
    John E. Bride, Asst. Indigent Defender, 18th Judicial District, St. Gabriel, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Ca-shio, Dist. Atty., Houston C. Gascon, III, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Terry Wayne Baker was charged by bill of information with possession with intent to distribute a controlled dangerous substance, marijuana, in violation of La.R.S. 40:966(A)(1). Defendant waived trial by jury. After a bench trial he was found guilty as charged and sentenced to serve three years at hard labor with credit given toward service of his sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

We have reviewed the record and find no merit to defendant’s assignment of error. Accordingly, we affirm his conviction and sentence.


text:
    STATE of Louisiana v. Raymond LONDON.
    No. 60861.
    Supreme Court of Louisiana.
    March 27, 1978.
    Loyola Law School Clinic, Arthur A. Lemann, III, Supervising Atty., Barrie Byrnes, Student Practitioner, William R. Ary, Trial Counsel, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Raymond London was indicted by the Grand Jury for first degree murder, a violation of La.R.S. 14:30. After trial by jury he was found guilty as charged. After a sentencing hearing, the same jury which had determined defendant’s guilt recommended a sentence of life imprisonment without benefit of probation, parole or suspension of sentence, rather than death. The trial judge imposed the recommended sentence.

We have reviewed each of defendant’s twelve assignments of error and find them to be without merit.

Accordingly, defendant’s conviction and sentence are affirmed.


text:
    McNallen J. REED et al. v. AMERICAN MOTORIST INS. CO. et al. AETNA CASUALTY & SURETY CO. et al. v. McNallen J. REED et al.
    No. 60878.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: ACF Industries and Aetna Casualty and Surety Co. applying for certiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline. 355 So.2d 948, 355 So.2d 952.

Writ denied.


text:
    Shirlene Horton MEGASON et vir. v. ST. PAUL FIRE AND MARINE INS. CO. et al.
    No. 60880.
    Supreme Court of Louisiana.
    Nov. 11, 1977.
   In re: Shirlene Horton Megason and Olin Travis Megason, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 355 So.2d 945.

Denied.


text:
    FMC CORPORATION v. CONTINENTAL GRAIN CO.
    No. 61003.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Continental Grain Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 355 So.2d 953.

Application withdrawn, parties have amicably settled dispute.


text:
    STATE of Louisiana v. Melvin D. FORD.
    No. 61578.
    Supreme Court of Louisiana.
    Feb. 13, 1978.
   In re: Melvin D. Ford applying for writs of certiorari, prohibition, mandamus and habeas corpus. Orleans Parish.

Writ Granted. Revocation of probation reversed. That portion of defendant’s sentence requiring payment of $500 to Appellate Process Fund is annulled and set aside. Case remanded to the Criminal District Court for the Parish of Orleans for correction of the sentence by making the sum payable to the District Attorney of Orleans Parish in accordance with law. See, State v. Rugon, 355 So.2d 876 (La.1977).


text:
    BOARD OF COMMISSIONERS OF LOUISIANA MUNICIPAL POWER COMMISSION “LAMPCO” v. ALL TAXPAYERS, PROPERTY OWNERS, AND CITIZENS of the State of Louisiana (including particularly the citizens of the Municipalities of Franklin, Morgan City, Natchitoches and Opelousas, the Creators of the La. Municipal Power Commission) and Non-Residents Owning Property or Subject to Taxation therein, and all other persons interested in or affected in any way by the issuance of Electric Revenue Bonds of the La. Municipal Power Commission.
    No. 61586.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Board of Comm, of Louisiana Municipal Power Commission “Lampeo”, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 355 So.2d 578.

Granted.

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:
    Purvis HEBERT, and wife Wanda Jane Hebert v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    No. 61614.
    Supreme Court of Louisiana.
    Feb. 24, 1978.
   In re: Purvis Hebert and wife Wanda Jane Hebert, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 355 So.2d 575.

Writ denied.


author: MARCUS, J.,

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. The AUDUBON PARK COMMISSION and the City of New Orleans.
    No. 61638.
    Supreme Court of Louisiana.
    March 3, 1978.
   In re: State of Louisiana ex rel. William J. Guste, Jr., Attorney General applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 984.

Denied.

MARCUS, J.,

would grant the writ being of the opinion that a serious question is raised as to whether the zoo expansion plan would change the character and nature of Audubon Park.

SUMMERS, J., would grant.


text:
    Mrs. Mona SEWELL v. ARGONAUT SOUTHWEST INSURANCE COMPANY.
    No. 61668.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Mrs. Mona Sewell applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 338 So.2d 1208, 355 So.2d 585.

Granted.

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:
    Earl FAYARD and Albert Taft v. Henry A. McCALL, Jr.
    No. 61762.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Henry A. McCall, Jr. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Cameron. 355 So.2d 991.

Denied.


text:
    STATE of Louisiana v. Donald James EDWARDS.
    No. 61912.
    Supreme Court of Louisiana.
    March 29, 1978.
   In re: Donald James Edwards applying for writs of certiorari, prohibition, mandamus, review and stay order. Parish of East Baton Rouge.

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


text:
    STATE of Louisiana v. Renee S. MORRIS.
    No. 61832.
    Supreme Court of Louisiana.
    March 30, 1978.
   In re: Renee S. Morris applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Elmo E. Lear, Judge of the 19th Judicial District, Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 14th day of April, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a day to be fixed by the Court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Mrs. Joyce Fascio Leaber, wife of/and Elroy LEABER v. JOLLEY ELEVATOR CORPORATION, Hartford Accident & Indemnity Company, Financial Property Development Corporation and American Motorists Insurance Company.
    No. 61820.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Mrs. Joyce Fascio Leaber, wife of/and Elroy Leaber applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 746.

Writ denied.


text:
    STATE of Louisiana ex rel. Linda Louise KILLMAN and Peter John Killman v. Jennifer Louise GURLEY.
    No. 61818.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Jennifer Louise Gurley, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 354 So.2d 755.

Writ denied.


text:
    George LANDRY v. NATIONAL GYPSUM COMPANY and Kemper Insurance Company.
    No. 61817.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: National Gypsum Company and American Motorist Insurance Company applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 739.

Denied.


text:
    Justina WILLIAMS v. McCRORY’S DEPARTMENT STORE and Rapid American and CNA Ins. Co.
    No. 61814.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: McCrory’s Dept. Store, et al applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 725.

Writ denied.


text:
    Errol BURNS v. LAMAR-LANE CHEVROLET, INC. and General Motors Corporation.
    No. 61802.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: General Motors applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Ascension.

Writ denied.


text:
    Frances A. PARISH v. BILL WATSON FORD, INC., et al.
    No. 61798.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Frances A. Parish applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 727.

Denied.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General and Charles W. Tapp, Director, Governor’s Consumer Protection Division, in their Official Capacity and on Behalf of Barry Simon and all Louisiana Consumers similarly situated. v. GENERAL MOTORS CORPORATION.
    No. 61840.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: General Motors Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 770.

Granted.

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:
    Lawlest J. LEBLANC v. Audrey Weibelt, wife of Lawlest J. LEBLANC.
    No. 61800.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Audrey Weibelt applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 354 So.2d 704.

Granted.

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:
    FLOWERS, INC. v. Mrs. Lucy Reid RAUSCH, Clerk of Court, Parish of St. Tammany and Collector of Revenue, State of Louisiana.
    No. 61833.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Shirley McNamara, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 354 So.2d 641.

Granted.

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:
    Akinori ECHIZENYA v. Joseph ARMENIO, Mrs. Joseph Armenio, XYZ Insurance Co., and Jane and John Doe, d/b/a Mediterranean Restaurant.
    No. 61797.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Akinori Echizenya, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 354 So.2d 682.

Writ refused.


text:
    EMPLOYERS’ SURPLUS LINE INSURANCE CO. v. CITY OF BATON ROUGE and Parish of East Baton Rouge.
    No. 61763.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: City of Baton Rouge and Parish of East Baton Rouge, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 631.

Writ granted.

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:
    Louis HENSON v. ST. PAUL FIRE AND MARINE INSURANCE CO.
    No. 61846.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: St. Paul Fire and Marine Insurance Co., applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 612.

Granted.

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:
    Rene CHAPOTEL v. BAILEY LINCOLN/MERCURY, INC., et al.
    No. 61837.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Rene Chapotel, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 615.

Granted.

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


text:
    STATE of Louisiana ex rel. Shirley Ann MOUTON v. Victor WALKER, Custodian, La. State Penitentiary at St. Gabriel.
    No. 61847.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Shirley Ann Mouton applying for writ of certiorari and review. Parish of Lafayette.

Writ denied.


text:
    Rudolph KNIGHT v. EDGAR MURRAY SUPPLY CO., INC. and American Employers’ Insurance Co.
    No. 61845.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Edgar Murray Supply Co., Inc. and American Employers’ Insurance Co. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Denied.


text:
    TRI-SOUTH MORTGAGE INVESTORS v. FOREST AND WATERWAY CORPORATION.
    No. 61844.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Tri-South Mortgage Investors, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    Don J. LARROQUE v. DEPARTMENT OF POLICE.
    No. 61843.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Don J. Larroque, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Denied.


text:
    Succession of Robert Del MARKLE.
    No. 61804.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Harold N. Cornay, Jr., applying for writ of certiorari or review. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Jessie J. SCOTT v. STATE of Louisiana.
    No. 61678.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Jessie J. Scott, applying for writ of mandamus. Parish of Jefferson.

Writ denied. Petitioner’s remedy is to file for habeas corpus alleging grounds on which plea of guilty is involuntary.


text:
    STATE of Louisiana ex rel. Louis LAZARD v. STATE of Louisiana.
    No. 61790.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Louis Lazard applying for writ of habeas corpus and certiorari. Parish of Orleans.

Application moot. Trial judge has ruled on application.


text:
    STATE of Louisiana v. Norris J. FANGUY, Jr.
    No. 61623.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Norris J. Fanguy, Jr., applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Lafourche.

Denied.


text:
    STATE of Louisiana v. David E. DUKE and James K. Warner.
    No. 61712.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: David E. Duke and James K. Warner, applying for remedial writs. Parish of Jefferson.

Granted. The petition of the relators in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Patrick E. Carr, Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 14th day of April, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana ex rel. Herman SMITH, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 61448.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Herman Smith, Jr., applying for writs of habeas corpus, certiorari, prohibition and mandamus. Assumption Parish.

Writ granted. Evidentiary hearing ordered to ascertain whether prior convictions were without counsel or with waiver of counsel.


text:
    Glenn J. DANOS v. Nelvin FORET, Jr., et al.
    No. 61821.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: William J. Guste, Jr., Attorney General, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 354 So.2d 667.

Writ denied. As to Assignment of Error 1 to 3, Court of Appeal taxed costs against the State of La. “to the extent permitted by law”.


text:
    Thomas BURNS v. Lenba D. Dominique, wife of/and Russell J. DOMINIQUE, City of Westwego, Parish of Jefferson and Liberty Mutual Ins. Co.
    No. 61823.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: State of Louisiana through the Dept, of Transportation and Development applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 354 So.2d 763.

Denied.


text:
    Mrs. Joyce Fascio Leaber, wife of/and Elroy LEABER v. JOLLEY ELEVATOR CORPORATION, Hartford Accident & Indemnity Co., Financial Property Development Corp., and American Motorists Insurance Co.
    No. 61838.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Esco Elevators, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 746.

Writ denied.


text:
    Tommy HOLLINGSWORTH v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY, et al.
    No. 61848.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Tommy Hollingsworth applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. Civil Service Commission. 354 So.2d 1058.

Writ denied.


text:
    Robin F. GEDDIE v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    No. 61842.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Robin F. Geddie applying for cer-tiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 718.

Writ denied.

TATE, J., would grant the writ.


text:
    STATE of Louisiana v. Boyd ROJAS.
    No. 61835.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Boyd Rojas applying for writs of certiorari, prohibition and mandamus. Parish of Acadia.

Denied.

TATE, DIXON and CALOGERO, JJ., would grant the writ.


text:
    STAR ELECTRIC SUPPLY, INC. v. The FIDELITY AND DEPOSIT COMPANY OF MARYLAND et al.
    No. 61829.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Star Electric Supply, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 647.

Denied.

CALOGERO, J., would grant.


text:
    Donald Roy STELLY v. WAGGONER ESTATES et al.
    No. 61828.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: T & H Well Service and Home Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Assumption. 355 So.2d 12.

Denied.

TATE, J., would grant the writ.


text:
    Donald Roy STELLY v. WAGGONER ESTATES et al.
    No. 61826.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Donald Roy Stelly applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Assumption. 355 So.2d 12.

Denied.

TATE, J., would grant the writ.


text:
    Frank G. BRISENO and Cecelia Pequeno Briseno v. C. G. MOOTY, Hermanine Mooty and the Hanover Insurance Companies.
    No. 61809.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Frank G. Briseno and Cecelia Pe-queño Briseno, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.

TATE, DIXON and CALOGERO, JJ., would grant.


text:
    Rebecca B. McCUTCHON v. MUTUAL OF OMAHA INS. CO.
    No. 61807.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Mutual of Omaha Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 759.

Writ denied.

SUMMERS, J., would grant.


text:
    Daniel S. BRAUN v. MUNICIPAL EMPLOYEES’ RETIREMENT SYSTEM OF LOUISIANA.
    No. 61803.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Daniel S. Braun, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 355 So.2d 19.

Writ denied.

SUMMERS and CALOGERO, JJ., would grant the writ.


text:
    John H. ANDERSON and Noemie L. Anderson v. Jessie B. WEST, Aetna Casualty and Surety Company and Hartford Accident and Indemnity Company.
    No. 61795.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Hartford Accident and Indemnity Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 636.

Writ denied.

SUMMERS, J., vote to grant.


text:
    OWENS AND SONS, INC. v. GUASTELLA EAST, INC., et al.
    No. 61796.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Owens and Sons, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 571.

Writ denied.

TATE, J., dissents.


text:
    STATE of Louisiana v. Gus WILLIAMS.
    No. 61657.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: State of Louisiana through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Orleans.

Writ denied.

SANDERS, C. J., and SUMMERS, J., would grant.


text:
    STATE of Louisiana v. Troy HYMAN.
    No. 61080.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: State of Louisiana applying for writ of certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.

SANDERS, C. J., and SUMMERS'- and MARCUS, JJ., would grant.


text:
    Janis T. ROUSSELL v. LOUISIANA HEALTH AND HUMAN RESOURCES DIVISION OF FAMILY SERVICES, New Orleans, La.
    No. 61815.
    Supreme Court of Louisiana.
    March 31, 1978.
    Rehearing Denied April 28, 1978.
   In re: Janis T. Roussell, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Civil Service Commission.

Writ granted. Judgment of the Court of Appeal is reversed. Plaintiffs appeal before the Louisiana Civil Service Commission is reinstated.

SUMMERS, J., dissents.


author: SARTAIN, Judge.

text:
    Marie M. WEST, et vir., Plaintiffs-Appellants, v. STATE of Louisiana, Through State SUPERINTENDENT OF PUBLIC EDUCATION AND STATE BOARD OF EDUCATION, Defendant-Appellee.
    No. 11741.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 23, 1977.
    Michael R. Connelly, Baton Rouge, of counsel for plaintiffs-appellants Marie M. West.
    Carmack M. Blackmon, Asst. Atty. Gen., Baton Rouge, of counsel for defendant-ap-pellee State of Louisiana through State Superintendent of Public Ed. and State Bd. of Ed.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

This matter is before us on a rule to show cause why appellants’ appeal should not be dismissed for failure to timely file an appeal bond. It is undisputed that the bond was not filed within sixty days of the expiration of the new trial delays. C.C.P. Art. 2087, as amended by Act 201 of 1976. Failure of appellant to timely post the required appeal bond is a jurisdictional defect mandating dismissal of the appeal. Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976). However, appellants contend that the amendment cannot constitutionally be applied in this case. If this contention is correct, the appeal is good because the bond was filed within the ninety days provided under the old law. We find no merit in appellants’ argument and therefore dismiss his appeal.

The trial judge had this case under advisement as of October 1, 1976, when the amendment became effective. He rendered judgment January 25,1977, and signed it on January 28. “The general rule from which there seems to be no dissent is that, where a statute deals with procedure only, it applies to all actions, to those which have accrued or are pending as well as to future actions.” Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566, 570 (1940); Pelloat v. Greater New Orleans Expressway Commission, 175 So.2d 656 (La.App. 1st Cir.), writ not considered, 248 La. 122, 176 So.2d 452 (1965).

Appellants do not dispute this general rule. They argue instead that they did not receive “due notice” of the procedural change. Appellants’ attorney states that he relied on the September, 1976 Cumulative Pamphlet to West’s Louisiana Statutes Annotated, which did not contain the amendment. Such reliance was misplaced. It is not and has never been the law that one must receive notice of a law before it can affect him. “After the promulgation, no one can allege ignorance of the law.” C.C. Art. 7; see also, Const. Art. 3, § 19. Since appellants have not alleged that Act 201 of 1976 was not promulgated or published in the official journal of the state, their ignorance of the amendment, for whatever reason, is irrelevant. As an aside, we would like to point out that on the front cover of the Cumulative Pamphlet it states: “For 1976 Laws, see West’s Louisiana Session Law Service.” Reference to the latter publication would have disclosed the new provision.

For the reasons assigned, the appeal is dismissed at appellants’ costs.

APPEAL DISMISSED.


author: LANDRY, Judge.

text:
    Lucy Revia MARTIN et ux. v. John H. PHILLIPS et al.
    No. 11671.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Johnny X. Allemand, Thibodaux, for plaintiffs and appellees.
    Philip J. McMahon, Houma, for defendant and appellant.
    Robert M. Johnston, New Orleans, for third-party defendant and appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant John H. Phillips, employee of Harold and Ronald Baudy d/b/a Baudy Drayage and Transport (Baudy), appeals from summary judgment denying him coverage pursuant to a policy issued by Continental Insurance Company (Continental) on a trailer owned by Southern Scrap Material Company, Ltd. (Southern), which trailer was being hauled by a tractor belonging to Baudy and insured by The Travelers Insur-anee Company (Travelers), and which-trailer was involved in an accident in which Phillips ran the tractor and trailer into the rear of plaintiff’s automobile which was stopped at a traffic signal. The sole question is Phillips’ coverage under Continental’s policy on Southern’s trailer which was involved in the accident.

Plaintiffs, husband and wife, sued for the wife’s injuries and damages to their automobile. The defendants named in the original suit are: (1) Phillips, (2) Baudy, and (3) Travelers. Defendants answered in the form of a general denial, admitting Travelers’ coverage of Baudy’s tractor, and including a third party demand against Continental as alleged insurer of Southern’s trailer. The third party demand maintains that Continental’s policy on the trailer covers one or more of the original defendants.

The third party demands were answered by Continental which denied that its policy on the trailer covered any defendant. Claiming its policy was best evidence of its coverage, Continental filed a motion for summary judgment and attached thereto a copy of its policy which lists Southern as the only named insured.

Phillips is the only third party plaintiff claiming coverage, under Continental’s policy, of Southern’s trailer. At trial of its motion for summary judgment, Continental stipulated its coverage of the trailer and that Southern hired Baudy’s tractor to transport the trailer. It was stipulated further that Phillips was driving Baudy’s tractor within the scope and during the course of his employment by Baudy. Travelers’ coverage of Baudy’s tractor was also stipulated.

Phillips claims coverage by virtue of the following policy definitions and/or provisions:

“ ‘Automobile’ means a land motor vehicle, trailer or semi trailer designed for travel on public roads (including any machinery or apparatus attached thereto), but does not include mobile equipment.” (Emphasis by the court).
“II. PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured;
(b) any partner or executive officer thereof, but with respect to a non-owned automobile only while such automobile is being used in the business of the named insured;
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is . . (Followed by non-pertinent provisions).

Phillips maintains that the trailer is an “automobile” within the policy definition of the term. He next contends that since the trailer is an automobile, it is clearly an “owned automobile” inasmuch as Southern concedes and asserts its ownership. He also contends that he comes within the terms of Section 11(c) above in that he is “any other person” using the “automobile” with the permission of the named insured, Southern.

Continental concedes that the trailer is an “automobile” and that Phillips is “any other person using an owned automobile with the permission of the named insured”. Continental maintains, however, that Phillips is not afforded coverage by virtue of the following express exclusions clearly set forth in the concluding portion of Section II, Persons Insured:

“None of the following is an insured: (ii) the owner or lessee (of whom the named insured is a sublessee) of a hired automobile or the owner of a non-owned automobile, or any agent or employee of any such owner or lessee; (iv) any person or organization, other than the named insured with respect to:
(2) a trailer while used with any motor vehicle owned or hired by such person or organization and not covered by like insurance in the company.”

Continental also invokes the following policy definitions appearing in. Section V (Additional Definitions):

“ ‘hired automobile’ means an automobile not owned by the named insured which is used under contract in behalf of, or loaned to, the named insured, provided such automobile is not owned by or registered in the name of (a) a partner or executive officer of the named insured or (b) an employee or agent of the name insured who is granted an operating allowance of any sort for the use of such automobile;
‘non-owned automobile’ means a automobile which is neither an owned automobile nor a hired automobile;
‘owned automobile’ means an automobile owned by the named insured; . . .”

In denying coverage, the trial court held that the exclusionary provisions of paragraph (ii), above, constituted an exception to or limitation of the general omnibus coverage provision of 11(c) above.

Appellant maintains that the exclusion does not apply to him because it excludes classes to which he does not belong. First, it excludes the owner or lessee (of whom Southern is sub-lessee) of a hired automobile. It also excludes the owner of a non-owned automobile or any agent or employee of such owner. Appellant contends that he is not claiming coverage as owner or lessee of a hired automobile, or as an employee of an ownp of a non-owned vehicle. Rather, it is argued that Phillips’ coverage arises from his operation and/or use of an owned automobile.

The rules governing interpretation of written agreements apply to insurance contracts. La.C.C. Article 1901; Jennings v. Louisiana and Southern Life Insurance Company, 280 So.2d 297 (La.App. 1st Cir. 1973), and authorities therein cited.

The terms and provisions of an insurance contract, as in the case of other written agreements, are to be construed.- in their general and popular meaning. Schmieder v. State Farm Fire & Casualty Company, 339 So.2d 390 (La.App. 1st Cir. 1976).

Any ambiguity in an insurance contract will be construed against the insurer and in favor of the insured. Jennings, above.

Where the terms of an insurance contract are clear and express, the agreement will be enforced between the parties according to its provisions because the contract is the law between the parties. Sehmieder, above.

An insurance contract must be interpreted as a whole. All terms and provisions of such a policy must be construed together to ascertain the true intent of the parties. La.C.C. Article 1948; Elledge v. Warren, 263 So.2d 912 (La.App. 3rd Cir. 1972).

We find no ambiguity in the policy provisions. We do, however, find some conflict or variance which was noted by the trial court. The insuring provision extends coverage to Phillips as a person using an owned vehicle with Southern’s permission. Said provision must, however, be viewed in the light of the clear limitation on coverage imposed by Paragarph (ii) appearing in the same coverage section. It is evident that Paragraph (ii) excludes and excepts coverage of an owner or employee of an owner of a hired automobile. To hold that coverage exists as to Phillips, it is necessary to completely ignore the express exclusion of Paragraph (ii).

All policy provisions considered, we find that the parties intended the policy to cover persons using a hired automobile with Southern’s permission excepting the owner and employees of the owner of a hired automobile. Thus an employee of Southern would be covered while using a hired automobile with Southern’s permission. Phillips, as employee of Baudy, owner of the hired vehicle, is not covered.

A similar interpretation was accorded an-alagous policy provisions under comparable circumstances. See Brady v. American Insurance Company, 198 So.2d 907 (La.App. 4th Cir. 1967).

Our interpretation is also compatible with Federal jurisprudence as established in Commercial Standard Insurance Company v. Central Produce Co., 42 F.Supp. 31 (M.D.Tenn.1940); affirmed 122 F.2d 1021 (6th Cir. 1941).

Blashfied Automobile Law and Practice, Volume 7, Section 316.1, page 645, citing Commercial Standard Insurance Company v. Central Produce Co., above, notes as follows:

“Under a policy covering a trailer and excluding coverage where the trailer was used with any automobile owned or hired by the insured and not covered by like insurance in the company, the company is not liable for damages arising out of an accident occurring while the trailer was being towed by a tractor insured with a different company and which was owned by another who was hired by the trailer owner to tow the trailer at a flat rate per mile.”

The trial court correctly found that, considering all policy provisions, there was no coverage of Phillips under the circumstances.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    Mrs. Gertrude LOUIS, Plaintiff-Appellant, v. SECURITY INSURANCE COMPANY OF HARTFORD, Defendant-Appellee.
    No. 11674.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Inez Kerth, Jefferson, for plaintiff-appellant.
    J. Rodney Ryan, Jr., Franklin, Moore & Walsh, Baton Rouge, for defendant-appel-lee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff, Mrs. Gertrude Louis, filed this tort action against defendant, Security Insurance Company of Hartford, the liability insurer of the Police Jury of Pointe Coupee Parish, on November 3, 1976. She alleged that her injury was sustained on November 1,1975. Defendant interposed an exception of prescription on the ground that a tort action must be brought within one year. C.C. Art. 3536. Plaintiff asserts that her action was timely because when the last day of the prescriptive period falls on a legal holiday the period runs until the end of the next day which is not a legal holiday. C.C.P. Art. 5059. It is undisputed that November 1, All Saints’ Day, is a legal holiday. R.S. 1:55(A)(1). The question for our determination is whether November 2, Election Day, is also a legal holiday. We hold that it is and that, therefore, plaintiff’s suit was timely instituted.

R.S. 18:552 provides:

“Days upon which a general or local election is held under this Part are, for all purposes whatever, legal holidays in the localities where the elections are held.”

Defendant asserts that this provision has no application to the determination of legal holidays for the purpose of determining prescriptive delays. We find no basis for this assertion in either the wording of R.S. 18:552 or its legislative history. The provision specifically provides that Election Day is to be a legal holiday for “all purposes whatever.” The legislative history is in accord. When the Revised Statutes were compiled in 1950, Act 445 of 1948, which was an exclusive listing of legal holidays, was in force in Louisiana. However, in compilation the redactors chose to include not only Act 445 of 1948 (the source of R.S. 1:55), but also Act 224, § 9 of 1940 (the source of R.S. 18:552), which had apparently been impliedly repealed. In including the two provisions the redactors removed the exclusivity clause from R.S. 1:55. We believe the redactors were mistaken in including Act 224, § 9 of 1940 in the Revised Statutes. However, since R.S. 18:552 was enacted into law by Act 2 of the First Extraordinary Session of 1950, it is the law. Guillot v. Nunez, 225 La. 301, 72 So.2d 513 (1954); State ex rel. Fudickar v. Heard, 223 La. 127, 65 So.2d 112 (1953).

Defendant also contends that R.S. 1:55(E), which was added by Act 72 of 1976, has impliedly repealed R.S. 18:552. This paragraph simply lists those days on which “[ejach district court and each clerk of a district court shall close.” This provision has no application to the determination of legal holidays. We do not believe that the days on which the clerks of court’s offices are to be closed must necessarily be the legal holidays. Therefore, the fact that Election Day is not listed in R.S. 1:55(E) does not avail defendant.

The fact that the clerk of court’s office was open on Election Day and that plaintiff could have filed suit on November 2 is irrelevant. As previously stated, the days on which the Clerks’ offices are open are not necessarily legal days. It is undisputed that “when the law allows a person only a limited time in which to file actions, he should be allowed the full and complete time.” Hebert v. Spano, 233 La. 813, 98 So.2d 199 (1957). To require a person to file suit on a legal holiday because the clerk’s office is open would be contrary to C.C.P. Art. 5059 which refers to legal holidays, not days on which the clerks’ offices are open. Legal holidays are defined by statute — not by when the various clerks of court’s offices are closed.

For the reasons assigned, the judgment of the district court is reversed. Costs of this appeal are taxed against appellee.

REVERSED AND REMANDED.


author: ELLIS, Judge:

text:
    John W. PUCKETT v. Elvin BROUSSARD
    No. 11656.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Robert L. Kleinpeter, Baton Rouge, for plaintiff and appellant.
    James O. Ervin, Baton Rouge, for defendant and appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This is a suit for a real estate commission by J. W. Puckett, a real estate broker, against Elvin Broussard. After trial on the merits, judgment was rendered dismissing plaintiff’s suit and he has appealed.

Mr. Broussard was the owner of the Fiesta Motel in Port Allen, Louisiana. On October 7, 1975, he was presented with an agreement to purchase the motel, signed by Dan Mathews or Assigns, for a total price of $200,000.00 payable “CASH, Thirty-five thousand and 00/100 Dollars ($35,000.00) at the time the sale is passed, and I/we will pay the balance One hundred sixty-five thousand and 00/100 Dollars ($165,000.00) as follows: $2300. approx, per month, plus/including interest at 7% per annum. This agreement is subject to the above terms being acceptable to a lending agency or agencies, or other financing arrangements acceptable to the present owner of the property. Mtg. to be assumed.”

On the same date, Mr. Broussard executed the following acceptance on the reverse of the agreement:

“I/We accept the offer as signed on the reverse side of this sheet, and agree to pay J. S. Puckett, Agent, the commission of Twenty thousand dollars and 00/100 Dollars ($20,000.00). If this agreement is terminated by mutual agreement of buyer and seller, the commission will nevertheless be due the agent.”

The agreement further provided that the act of sale was to be passed before a notary within 30 days at purchaser’s expense. Mr. Puckett was authorized, in the agreement, to employ Emile Weber to act as the purchaser’s attorney.

About five days after the expiration of the 30 days allowed for passing the sale, Mr. Puckett called Mr. Broussard and told him that the sale was to take place that day. Mr. Broussard and Mr. Puckett went to Mr. Weber’s office together. The testimony of the parties is in hopeless conflict as to what took place thereafter.

Mr. Puckett testified that Mr. Broussard told him, on the way to Mr. Weber’s office that he was not going through with the sale; and that Mr. Mathews was not present at the office; and that he had no recollection of anything being said about Mr. Mathews being unable to raise the money to buy the property.

Mr. Broussard testified that he went to the office ready, willing and able to pass the act of sale; that Mr. Mathews was there and said that he was unable to raise the money for the sale. Mr. Broussard then told Mr. Puckett and Mr. Weber’s son that he considered the agreement void and that he was putting the property back on the market. He further testified that he asked for the $5,000.00 deposit which Mr. Puckett was holding, and learned that Mr. Puckett had never negotiated the check given him. The applicable law in a case such as this is given in Leaman v. Rauschkolb, 1 So.2d 338 (Orl.La.App.1941) as follows:

“We discern, therefore, that it is the view of the Supreme Court that agency contracts of this kind should be interpreted to mean that the vendor hires the real estate agent with the intention of becoming liable for a commission only in the event a sale of the property is consummated; that explicit provisions to the contrary contained in the contract will not be enforced, since, to do so would lead to an absurd consequence and that the vendor is not responsible for a commission in the event the sale is not consummated unless (1) it appears that he, the vendor was at fault in that he refused to convey the title to the purchaser without cause or (2) unless he is unable to consummate it because his title, at the time he agreed to sell, was not marketable.”

The trial judge in this case could find no fault on the part of Mr. Broussard, and there is ample evidence to support his conclusion. Plaintiff’s contentions that Mr. Broussard bears the burden of proving that Mr. Mathews was financially unable to consummate the sale, and that he was required to take some affirmative action, such as having the sale prepared himself, or instituting an action for specific performance, is simply not the law, insofar as Mr. Puckett’s suit for his commission is concerned. Mr. Puckett alleges that he is due a commission and he must prove he earned it. To do so, he must show that he found a buyer, ready, willing and able to take title and that the sale did not pass due to Mr. Broussard’s refusal to convey title without cause. He has not done so.

The judgment appealed from is therefore affirmed, at plaintiffs cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Elaine Cox WHITE v. Charles Alton WHITE.
    No. 11721.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Gerard E. Kiefer, Baton Rouge,, of counsel for plaintiff-appellant, Elaine Cox White.
    Roland C. Kizer, Jr., Baton Rouge, of counsel for defendant-appellant, Charles Alton White.
    Before LOTTINGER, EDWARDS, and PONDER, JJ.
   EDWARDS, Judge.

This is an appeal from a divorce judgment fixing permanent alimony and child support. Elaine Cox White, the wife, contends that the award of alimony should be increased. Charles Alton White, the husband, contends that Elaine is not entitled to alimony and that child support should be decreased.

The Whites were divorced on June 7, 1977. The divorce judgment fixed permanent alimony in the sum of $750.00 per month and maintained child support in the same amount as was ordered in the judgment of separation, i. e. $600 per month for two children, plus medical and dental expenses as well as certain reasonable expenses for the children’s horses.

The trial judge stated his Reasons for Judgment as follows:

“In the case at bar plaintiff wife seeks permanent alimony and the defendant husband ably argues that she is entitled to no permanent alimony whatsoever. While it is true that Mrs. White, in the property settlement, received certain fixed but not income-producing assets, such as the former matrimonial domicile and land together with certain non-income producing real estate as well as some sixteen thousand in cash subject to some interest income upon proper investment of the same, other than that, she enjoys no present income-producing assets such as will permit her to provide herself with the ordinary necessities of life. Without forcing the wife to liquidate her non-income producing capital, this court believes that the sum of seven hundred and fifty dollars per month as permanent alimony from a former husband well able to afford the same is consistent with the law and her needs.
In accordance with the above judgment is rendered and will be signed granting a final divorce in favor of the plaintiff and against the defendant, continuing custody and support as previously ordered and condemning the defendant to pay to the plaintiff as permanent alimony for her support the sum of seven hundred and fifty dollars per month in the same proportionate amounts and on the same dates as the child support, commencing with the next regular child support payment.” (emphasis supplied)

It is apparent from these reasons that the trial judge looked solely to the wife’s income rather than to her means in determining whether she was entitled to permanent alimony after divorce. This was error.

The proper criteria for determining a wife’s entitlement to alimony after divorce is contained in LSA-C.C. Article 160, where it is stated in pertinent part:

“When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony . . . ” (emphasis supplied)

The Supreme Court in Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950) stated at page 35:

“. . . Article 160 makes no reference to the wife’s income and takes into consideration only her means of maintenance and whether they are sufficient or not. In other words, under Article 160, the Court is not concerned with the wife’s income as such but only with the means she has, including income, and whether they are sufficient for her maintenance . . . ”

In the instant case, the wife has assets worth, by her own estimate, in excess of $100,000. In addition, she has more than $16,000 in cash which is invested at 7%% per annum interest and approximately $3,000 in a bank savings account.

Under the above facts, we are unable to find that Mrs. White is without sufficient means for her maintenance. Accordingly, the trial court improperly awarded her alimony after divorce. Smith v. Smith, supra.

Counsel for Mrs. White argues the applicability here of Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973) and Gautreaux v. Cormier, 315 So.2d 164 (La.App. 3rd Cir. 1975). Those cases are distinguishable on two main points: (1) each dealt with a rule to change permanent alimony after the divorce with change of circumstances vel non as an issue; and (2) nothing in the Bernhardt opinion suggests that the wife had any assets at all, and in Gautreaux the wife had no income at all and only a $7,000 house.

Counsel further argues that the issue here is one of change of circumstances. Such is clearly not the case. The alimony previously fixed was pendente lite (C.C. Article 148). This case presents an initial determination of permanent alimony after divorce. (C.C. Article 160). The two concepts are entirely different. Ward v. Ward, 339 So.2d 839 (La.1976); Frederic v. Frederic, 302 So.2d 903 (La.1974); Smith, supra; Knight v. Knight, 331 So.2d 102 (La.App. 1st Cir. 1976).

On the issue of child support, Mrs. White testified regarding her monthly expenses of $1,825.11, the needs of the children and her inability to work. The trial court found based on this evidence that the award for child support should remain at $600 per month as previously ordered in the separation decree.

We find that this award is supported by the evidence and does not exceed the discretion vested in the trial court.

For the above reasons, the judgment of the trial court is reversed insofar as it awarded the wife the sum of $750.00 per month as permanent alimony; and affirmed in all other respects. Costs of this appeal are to be borne by Mrs. White, the plaintiff-appellant.

REVERSED IN PART AND AFFIRMED IN PART.


text:
    James E. KEMP, d/b/a Capital Leasing Company v. John D. BELCHER, Jr.
    No. 11730.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    A. L. Carbonette, Baton Rouge, for plaintiff.
    Delos R. Johnson, Jr., of Johnson & Kuhn, Franklinton, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

James E. Kemp, d/b/a Capital Leasing Company, sues John D. Belcher, Jr. to collect, by virtue of an acceleration clause, the remaining rent payments under a written lease. The trial court rendered judgment for plaintiff, awarding the rent and attorney’s fees, but allowed defendant a credit for the equipment not delivered timely. From this judgment, defendant appeals.

On January 16, 1975, the parties entered into a written lease concerning five pieces of equipment; one (1) Ann Arbor paper baler; one (1) Superior Shredder; one (1) ECOA dock board; one (1) Clark fork lift; and one (1) air compressor. The term of the lease was thirty-six (36) months at a monthly rent of $337.45. The lease also provided that in the event of default on any payment, the remaining balance would become due, along with attorney’s fees at the rate of 15% on the amount in default.

At the time of the lease, the equipment (with the exception of the dock board which was on order) was at a warehouse in Hammond, where it had previously been inspected by defendant. Defendant was responsible under the lease for transporting the equipment from the warehouse. Defendant signed an acceptance notice acknowledging receipt of the equipment; thereafter, he removed all the equipment from the warehouse with the exception of the air compressor, which was not needed at that time. Defendant paid the storage cost at the warehouse for the air compressor and did not return to remove it for several months. Upon defendant’s return, a dispute arose regarding the ownership of the compressor and as a result defendant did not obtain possession of this piece of equipment. Additionally, defendant experienced a delay of approximately six months in receiving the dock board.

Defendant paid eleven payments under the lease and thereafter refused to make any further payments. The last payment was on February 18, 1976.

After amicable demand, plaintiff instituted this suit on May 3, 1976 for the twenty-five (25) monthly payments remaining on the lease.

The trial court awarded plaintiff the sum of $8,357.25, with interest, and attorney’s fees of twenty-five percent (25%) of the principal and interest due. This award represented the twenty-five monthly payments left under the lease, less two credits allowed by the trial court; a credit of $50.00 for the value of the air compressor which was never received and a credit of $64.00 because the delivery of the dock board was delayed approximately six months.

Defendant contends that the nonpayment of rent was excused because plaintiff failed to deliver all the equipment under the lease.

Applicable in this case is LSA-C.C. article 2729, which provides:

“The neglect of the lessor or lessee to fulfill his engagements, may also give cause for a dissolution of the lease, in the manner expressed concerning contracts in general, except that the judge can not .order any delay of the dissolution.”

However, defendant did not place plaintiff in default or seek a dissolution of the lease, though he retained possession and use of the leased equipment. Under such circumstances, defendant remained liable for payment of the rent. LSA-C.C. art. 2710.

The trial court therefore properly allowed plaintiff to collect the balance of the rent under the acceleration clause, when defendant defaulted.

We also find that the allowance of a credit, for the equipment not delivered timely, was proper.

Plaintiff has conceded that the trial court erred in awarding attorney’s fees at the rate of 25% when the lease allowed only 15%. We will accordingly reduce the attorney’s fees to that amount.

For the reasons assigned, the judgment of the trial court is amended to provide attorney’s fees at the rate of fifteen percent (15%) of the principal and interest due; and affirmed in all other respects at appellant’s cost.

AMENDED AND AFFIRMED.


text:
    Elmo W. MORGAN et al. v. Thelma Davis EPPS.
    No. 11732.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Robert C. Funderburk, Jr., Baton Rouge, of counsel, for plaintiff-appellee, Elmo W. Morgan, et al.
    Keith D. Jones, Baton Rouge, of counsel, for defendant-appellant, Thelma Davis Epps.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is a suit by Elmo W. Morgan and the Lincoln Heights Improvement Association against Thelma Davis Epps, the owner of Lot 114 in Lincoln Heights Subdivision, East Baton Rouge Parish, to enjoin violations of certain subdivision restrictions. From the trial court’s judgment granting the injunction, defendant has appealed.

The issue presented for review is prescription: has plaintiffs’ action prescribed or has there been an interruption of prescription?

Plaintiffs instituted this suit on May 4, 1977, alleging that defendant was operating a hotel and bar on Lot 114 in violation of recorded subdivision restrictions. The pertinent restriction provided:

“No retail or wholesale or store shall be erected or any business, industry, or trade carried on upon any of the lots herein described, the lots hereinabove described being strictly for residential purposes.”

Defendant interposed an exception of prescription, contending that she acquired Lot 114 on June 28, 1973 and that any violation of the subdivision restrictions began in 1973 and have continued since that time. Consequently, defendant argues that the present action, filed in 1977, is prescribed, because it was not brought within two years reckoning from the commission of the violation.

In response to the exception, plaintiffs amended their petition to disclose two suits, instituted in 1973 by Huston Williams and Eddie J. Drew to enjoin violations of the same subdivision restrictions on Lot 114, which they claim served to interrupt prescription in the instant case. The first suit was filed on April 6, 1973 against Thelma Davis Epps, the defendant in the instant case, and was numbered 163,078 in the Nineteenth Judicial District Court of the Parish of East Baton Rouge. This suit was dismissed as to Lot 114 upon a showing that the defendant did not own the property. Thereafter, the second suit was instituted on April 19, 1973, was numbered 163,358 in the Nineteenth Judicial District Court and was against the record owner of Lot 114, Joyce Elizabeth Howard. The record of that suit reveals that no service was ever made on Ms. Howard and that the action is presently pending.

Neither plaintiff in the instant case was a party in either of the suits in 1973.

After the dismissal of the 1973 suit against Thelma Davis Epps and after the filing of the 1973 suit against Joyce Elizabeth Howard, Mrs. Epps, the defendant in the instant case, purchased Lot 114 from Ms. Howard on June 28, 1973.

The trial court, in overruling defendant’s exception of prescription, found that there was an interruption of prescription based on the litigation in 1973.

Defendant contends that the trial court erred in finding an interruption of prescription and in overruling her peremptory exception.

The suit in 1973 against Mrs. Epps could not have interrupted prescription because Mrs. Epps at that time did not own Lot 114 and consequently was not bound, as to Lot 114, by the subdivision restrictions. Therefore, the trial court must have found that the second suit in 1973 against Ms. Howard caused the interruption of prescription.

In this regard, we note that Mrs. Epps, the defendant in the instant case, was not a named defendant in the 1973 suit against Ms. Howard and was not substituted as a defendant after she purchased Lot 114 on June 28, 1973.

Pertinent to these facts is LSA-R.S. 9:5801, which provides in part:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue .

The phrase “all defendants” in the above statute refers to only those defendants named as such in the petition. Majesty v. Comet-Mercury-Ford Company of Lorain, Michigan, 296 So.2d 271 (La.1974). Thus the filing of a petition does not, in itself, interrupt prescription as to a person affected by the cause of action sued upon unless the petition makes such party a defendant. Martin v. Mud Supply Co., Inc., 239 La. 616, 119 So.2d 484 (1960).

Accordingly the 1973 suit against Ms. Howard did not interrupt prescription as to Mrs. Epps because Mrs. Epps was not a named defendant.

Plaintiffs additionally urge that Mrs. Epps and Ms. Howard have interchangeable identities, i. e. one being the alter ego of the other, and that a suit against either Mrs. Epps or Ms. Howard would interrupt prescription against the other.

Without expressing an opinion on the legal validity of the above theory proposed by plaintiffs, we find that the evidence in the record does not support plaintiffs’ allegations of interchangeable identities or alter ego.

We find that the trial court erred in holding that there had been an interruption of prescription.

Certain evidence in the record indicates, though not with any degree of certainty, that the violation of the subdivision restriction began in 1974. However we are unable to make a definite determination on this point based on the present posture of the record. Therefore we will remand this matter to the trial court in order that evidence might be taken on the question of when the violation of the subdivision restrictions did, in fact, begin.

For the foregoing reasons, the judgment appealed is reversed, and the case is remanded to the trial court for further proceedings consistent with the views herein expressed.

All costs of this appeal are to be borne by the plaintiffs-appellees; all other costs to await the final disposition of the case.

REVERSED AND REMANDED.

      . The applicable prescriptive period is contained in LSA-R.S. 9:5622(A), where it is provided:
      “Actions to enjoin or to obtain damages for the commission or continuance of a violation of restrictions contained in the title to land are prescribed by two years, reckoning from the commission of the violation. When this prescription shall have accrued, the particular parcel of land shall be forever free from the restriction which has been violated.”


author: PONDER, Judge.

text:
    Mr. & Mrs. Celestin WILLIAMS, Individually, et al. v. Clint MORGAN, D/B/A G.M.C. Tire Company, et al.
    No. 11710.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Neville G. Orrett, New Orleans, for plaintiffs and appellants.
    Philip McMahon, Houma, for defendants and appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiffs have appealed from the judgment denying recovery of damages arising from a one-vehicle automobile accident.

The issues posed are: the negligence of the driver; contributory negligence of the passengers; the employment relationship of the driver; and the course and scope of the driver’s employment.

We affirm.

Johnny Winslow, a long time employee of G. M. C. Tire Co., Inc., signed a contract about four months before the accident, purporting to make him an independent contractor rendering a mobile tire repair service. Steven Winslow, his son, operated one of the two trucks owned by the father. On the day of the accident, about 11 A.M., Steven picked up Richard Matthews and the two then picked up Brenda and Loretta Williams. Both Steven and Richard were killed in the accident; Brenda and Loretta received serious injuries. The investigating officer believed from the evidence that the truck went off the road on the right, came back onto the road and then rolled sidewise. Brenda Williams did not remember anything of the accident. Loretta Williams said only that the truck went off the road and the driver lost control. There were no other witnesses.

Plaintiffs, the mother of Brenda and Loretta Williams and the mother of Richard Matthews, pressed claims against Johnny Winslow, G. M. C. Tire Co., Inc., and Pan American Fire and Casualty Company. The claim against G. M. C. Tire Co., Inc. was based on the assertion that Johnny Winslow and Steven Winslow were employees of the firm. Pan American Fire and Casualty Company was the liability insuror of G. M. C. Tire Co., Inc.

The lower court dismissed all claims at plaintiffs’ costs. No reasons were assigned.

The court’s decision could be based on: a finding of no negligence on the part of Steven Winslow; a finding of contributory negligence of Richard Matthews, Brenda and Loretta Williams; or a finding that Steven Winslow was not within the course and scope of his employment at the time of the accident.

A finding that Steven Winslow was not an employee of G. M. C. Tire Co., Inc., would result in a dismissal of the suit against that company and its insuror but not the suit against Johnny Winslow.

There is a total absence of any proof of contributory negligence of the three passengers.

The evidence as to the negligence of Steven Winslow consists of the fact that the accident happened as it did. The plaintiffs urge the application of res ipsa loquitur and are quite persuasive.

Nevertheless, we base our decision to affirm on the finding that Steven Winslow was not within the course and scope of his employment.

There is a presumption that an employee involved in an accident in his employer’s vehicle is within the course and scope of his employment. Convincing evidence is required to overcome this presumption. Windham v. Security Insurance Company of Hartford, 337 So.2d 577 (La.App. 4th Cir., 1976). In addition to this presumption there is some vague hearsay testimony by Johnny Winslow that his son, Steven, was on his way to Shriever to repair a tire.

Plaintiff, Mary Matthews, testified that her son, Richard, was not working for Steven Winslow and that when she cautioned her son about being late for his own job he said he would be back to go to work at noon. The two girls, picked up after Richard, testified there was no mention of Steven going on a job; that he in fact was taking them home.

This evidence together with the failure to produce any clearer proof that Steven was on an employer’s mission, could have been relied upon by the trial court to find that plaintiffs had not borne the burden of proving that Steven Winslow was within the course and scope of his employment. We agree.

We therefore affirm on that ground. The plaintiffs are cast with all costs.

AFFIRMED.


text:
    Julian F. TABLADA v. Catalina B. Saiz TABLADA
    No. 11722.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Birch P. McDonough, New Orleans, Joseph F. Keogh, Baton Rouge, of counsel for plaintiff-appellant.
    Robert L. Roland, Baton Rouge, of counsel for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff has appealed from judgments making executory $4,600.00 past due alimony and reducing alimony to $1,000.00 per month.

The issues are the amount of the past due alimony and the amount of the monthly alimony.

We affirm.

In the judgment of divorce, by agreement of the parties, the amount of monthly alimony payments was set at $1,400.00. Plaintiff made one full payment and two partial payments of $500.00 each. By the time the rules, one to reduce alimony and one to make executory the past due amounts, were heard, two additional payments had become due and unpaid. The court reserved ruling on the objection to the consideration of the two full months’ alimony. When judgment was rendered the judge made executory the full amount. Plaintiff complains that only $1,800.00 should have been awarded because the rule to reduce alimony had already been filed and was pending and because only the alimony then past due was prayed for.

On the question of the payments accrued after the rule had been filed plaintiff pointed to the possibility of the retroac-tivity of reduction, but did not object to the reception of evidence thereon. As a matter of fact, it was stipulated that no payments had been made after the two partial payments. The court has much discretion to make or refuse to make a reduction retroactive. Vinson v. Vinson, 292 So.2d 763 (La. App. 4th Cir., 1974). Under the circumstances we find no abuse of discretion.

Plaintiff urges that the trial court erred in not relieving him of the obligation to pay alimony.

LSA-C.C. Article 160 governs the award of alimony after a divorce. LSA-C.C. Article 232 provides for a change in an alimony award when the circumstances change. See Bernhardt v. Bernhardt, La., 283 So.2d 226 (1973).

The appellant first argues that he is unable to pay the alimony. The appellant received over $210,000.00 when he severed his relationship with the corporation of which he was a founder, only a few days before the divorce. This total represented not only the value of his shares of stock but also reimbursement for salary, consultant fees, or a bonus for the years of 1970 through 1976, at his option. Appellant has remarried and has incurred additional liabilities, including an investment of $60,000.00 in a new business. However, voluntary indebtedness is not, in and of itself, grounds for finding that the appellant is unable to pay. Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959). The evidence also shows that the alimony payment is one of the few debts that Mr. Tablada has failed to take care of. We cannot say that the Trial Judge abused his much discretion in finding that appellant is able to pay permanent alimony.

The appellant next argues that the wife has sufficient means for her own maintenance. She is receiving $150.00 every two weeks as pay for being a member of the board of directors of a corporation; her medical insurance is paid by this corporation; she owns stock in the corporation which had a value of almost $16,000.00 at the time of the dissolution of the community; and she is earning $500.00 per month while working in a dentist’s office. She testified that she owed $144.00 per month of the home mortgage transferred to her in the community property settlement. She has purchased a new car on which she owes notes for the next three to four years. There is some testimony by her that she has appointments with a doctor in the future to evaluate a cancer condition. She claims that this puts her ability to work in immediate jeopardy. However, she failed to introduce any evidence as to the prognosis of her ailment.

The only substantial change in her circumstances is her $500.00 per month salary she had drawn for only three weeks. The court lowered the alimony $400.00 per month. Considering the uncertainty of her continued employment and the ambiguity as to whether the salary was gross or net, we cannot say the lower court erred.

We therefore affirm. The costs are to be paid by the appellant.

AFFIRMED.

      .LSA-C.C. Article 160
      “Art. 160. When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
      1. The wife obtains a divorce;
      2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
      3.The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.
      This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries. (As amended Acts 1964, No. 48 § 1.)”

      . LSA-C.C. Article 232
      “Art. 232. When the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted.”


text:
    Richard LEWIS v. Percy C. BELL and Charter National Insurance Co. Margaret LEWIS and Shed Thompson v. Percy BELL and Charter National Insurance Company.
    Nos. 11725 and 11726.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    George H. Jones, New Orleans, for plaintiff and appellant in No. 11725.
    Richard B. Nevils, Kleinpeter & Nevils, Baton Route, for defendants and appellees.

      Robert E. McDonald, Metairie, for plaintiffs and appellants in No. 11726.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appeals from a judgment awarding him $828.07 for injuries and expenses sustained when the car he was driving was struck in the rear. The case was consolidated with No. 11,726 filed by the passengers in his automobile. Separate judgments will be given.

The sole issue is the amount of the award.

We amend and affirm.

We consider the finding of liability final since defendants have neither appealed nor answered the appeal.

Plaintiff testified that he was shaken up in the collision. His back and leg were hurting when he got home so he had his wife rub them with rubbing alcohol. Three days later he consulted Dr. Macaluso, who treated him with heat medication and a back brace. He first said he wore the brace about four months, but afterwards said he was still wearing it some twenty months after the accident.

The report of Dr. Macaluso, general surgeon, showed that on the third day after the accident, his diagnosis was cervical and lumbosacral sprain on the findings of: “NECK: Severe tenderness cervical supras-pinal spinous processes. Moderate spasms lateral cervical and severe spasms suboccipi-tal lateral flexion restricted severely. BACK: Very severe tenderness spasms lumbar sacrospinalis muscles. Flexion and extension restricted severely. Lateral flex-ion and rotation restricted severely.” He prescribed analgesics, muscle relaxants, restricted activity, diathermy treatments and a back brace. He saw plaintiff some 21 times before discharging him some 5 months after the accident.

The trial court awarded $500.00 plus $328.07 special damages. The plaintiff asserts that the trial court abused its discretion. We agree. After studying the facts of this case and the awards approved in cases of similar injuries as guidelines only, we conclude that the minimum acceptable award for general damages is $3,000.00. Schexnayder v. Carpenter, La., 346 So.2d 196; Johnson v. International Insurance Co., 347 So.2d 1279 (La.App. 1st Cir., 1977).

For these reasons the judgment is amended so as to increase the award to $3,328.07, and as amended is affirmed.

AMENDED AND AFFIRMED.

Plaintiffs appeal the judgment in this case which is companion to No. 11,725, Lewis v. Bell, et al. As noted in that case the sole issue is the amount of the awards.

Margaret Lewis testified she was scared and “shook-up” by the accident. A day or two later she experienced pain in the neck, head and shoulders. She went to Ochsner’s and received an analgesic. Later she had to stop work. She consulted Dr. Macaluso a week or so after the accident. She was treated three times a week until some five months after the accident. She missed work for a month or six weeks.

Dr. Macaluso’s report showed that he first saw Mrs. Lewis nearly three months after the accident. He diagnosed cervical sprain on findings of: “Severe tenderness cervical supraspinal interspinal processes. Severe spasms posterior cervical and very severe spasms lateral cervical area. Flex-ion and rotation restricted severely. Extension and lateral flexion restricted very severely.” He prescribed analgesics, muscle relaxants, restricted activity, diathermy treatments and a neck collar. She was discharged a little less than five months after the accident.

The court awarded $500.00 for general damages and $396.20 for special damages. We agree with her contention that the lower court abused its discretion. We conclude the minimum allowable award under the facts of this case and the awards approved in cases of similar injuries to be $2,000.00. Schexnayder v. Carpenter, La., 346 So.2d 196; Johnson v. International Insurance Co., 347 So.2d 1279 (La.App. 1st Cir. 1977).

Shed Thompson testified that he had a previous back condition for which he was seeking medical attention. He was on sick leave at the time of the accident. He consulted Dr. Accardo who gave him some capsules two or three days after the accident. Later he went to Dr. Russo who sent him to the hospital for heat treatments and prescribed a corset. He went back to work the next month but quit shortly because of inability to work. He was retired because of diabetes and a heart condition.

Dr. Accardo saw him three days after the accident. Examination showed bilateral paravertebral muscle spasms, tenderness in the paravertebral muscle areas in the lum-bosacral region, marked restrictions of motion to bending and rotation. X-rays showed a mild scoliosis, minimal narrowing of the L3-L4 disk space and minimal degenerative changes. There was no evidence of fracture or subluxation. He saw plaintiff only one other time; he noted improvement then.

Dr. Russo, an orthopedic surgeon, first saw plaintiff nearly a month after the accident. He found limited flexion, paraspi-nous muscle spasm, diminished knee jerk and tenderness. X-rays showed advanced arthritic changes. Plaintiff was much improved a week later.' He was seen only once more, about three months later.

The court awarded $500.00 in general damages and $215.00 in special damages.

Because of the very serious question of causation and the failure to adduce medical testimony, that must have been available, as to the extent of the prior back condition, we cannot say that the lower court has abused its discretion.

For these reasons, the judgment in favor of Margaret Lewis is amended so as to increase the award to $2,396.20 and affirmed as amended. The appellees are cast with cost.

The judgment in favor of Shed Thompson is affirmed. Appellant is cast with costs.

AMENDED AND AFFIRMED.