text:
    George W. ROSIER, Appellant, v. STATE of Florida, Appellee.
    No. DD-130.
    District Court of Appeal of Florida, First District.
    March 29, 1977.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant contends he may not be separately sentenced on five counts of manslaughter by culpable negligence because the five victims were killed in a single automobile collision, characterized by appellant as a single transaction. We cannot assent. We have upheld separate sentences for violent crimes consecutively directed against , two or more persons. Booth v. State, 332 So.2d 157 (Fla. 1st DCA 1976). We have also upheld separate sentences for violent crimes simultaneously directed toward two or more persons. Robinson v. State, 323 So.2d 62 (Fla. 1st DCA 1975). Assuming as appellant argues that the accused there intended that his offense affect two or more persons, the same may be said for appellant’s culpable indifference to the safety and number of his victims in this case, which was equivalent to an intentional violation of their safety. Cornell v. State, 159 Fla. 687, 32 So.2d 610 (1947); Preston v. State, 56 So.2d 543 (Fla.1952); Maxey v. State, 64 So.2d 677 (Fla.1953).

The trial court erred, as the State concedes, in purporting to impose a driving prohibition as a condition of any future parole from the flat sentences imposed and purporting to require, alternatively, that a member of the parole commission then accompany appellant when he operates a vehicle “so that they will be in as much jeopardy as other innocent persons on the highways.”

The purported parole conditions are stricken from the sentences and, as so modified, the judgments are

AFFIRMED.

BOYER, C. J., and MILLS, J., concur.


source: Caselaw Access Project

author: RAWLS, Acting Chief Judge.

license: Public Domain

text:
    Richard M. GRUNWALD, Appellant, v. DEPARTMENT OF REVENUE et al., Appellees.
    No. AA-403.
    District Court of Appeal of Florida, First District.
    March 30, 1977.

      Richard M. Grunwald, in pro. per.
    Robert L. Shevin, Atty. Gen., E. Wilson Crump, Asst. Atty. Gen., for appellees.
   RAWLS, Acting Chief Judge.

Grunwald (appellant-taxpayer) is of the firm opinion that the trial court erred in its interpretation of the time limitation for the Department of Revenue to additionally assess intangible taxes and penalties.

We adopt as the opinion of this court salient portions of the learned trial judge’s well-reasoned opinion, viz:

“ . . .2. The Plaintiff Richard M. Grunwald is and has been at all times relevant hereto a resident of the State of Florida.
3. On March 20,1970, the Plaintiff Richard M. Grunwald filed an intangible personal property tax return pursuant to Chapter 199, Florida Statutes.
4. The due date for filing the aforesaid return was April 1, 1970, Chapter 199, Florida Statutes, 1969. On November 30, 1970, the Plaintiff Richard M. Grunwald paid the intangible taxes shown to be due on the return.
5. The attachments to Plaintiff’s Complaint reflect correspondence between Plaintiff and the Department of Revenue of the State of Florida beginning sometime on or before July 24, 1973, continuing through November 6,1973, and culminating with a Notice of Determination dated December 19, 1973. This correspondence reveals that the Department of Revenue had notified Plaintiff Richard M. Grunwald prior to November 30, 1973, that his intangible tax liability for the 1970 tax year was under investigation by the Department of Revenue. 6. It is undisputed that on the return filed by the Plaintiff Richard M. Grun-wald for the 1970 tax year, shares of stock of a value of $143,200 as of January 1, 1970, were omitted from said return.
7. The intangible tax attributable to these omitted shares of stock was $143.20. The penalty attributable to said omission was properly computed as $100.
8. Florida Statutes, Section 199.232(4), 1971, 1973, provides that no intangible tax assessment shall be made except pursuant to an investigation after the expiration of three years from the due date of filing a return or the date of filing, whichever is later.
9. The intangible tax assessment in question for the 1970 tax year was not made within three years from the due date for filing the return or the date of filing the return.
10. The assessment in question, however, was made pursuant to an investigation. Florida Statutes, Section 199.232(7) provides that an investigation of intangible tax liability may be made against the person for any year in which that person’s right to a refund is available.
11. The right to a refund for intangible taxes is available for a period of three years from the date of payment Florida Statutes, Sections 199.252 and 215.26.
12. The Plaintiff in question, Richard M. Grunwald, was notified that an investigation of his intangible tax liability was being conducted for the 1970 tax year within the period in which his right to a refund was available.
13. Accordingly, the assessment and penalties against the Plaintiff in the amount of $243.20 were not barred by the statute of limitations. . . .”

AFFIRMED.

MILLS and SMITH, JJ., concur.


text:
    STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. GILMORE PLANT AND BULB COMPANY, INC., a Foreign Corporation, Appellee.
    No. BB-475.
    District Court of Appeal of Florida, First District.
    March 30, 1977.
    Walter Postula, Tallahassee, for appellant.
    Harold E. Regan, Tallahassee, for appel-lee.
   RAWLS, Acting Chief Judge.

Appellant, State of Florida Department of Transportation (Department), by this appeal, challenges a judgment entered pursuant to a jury verdict in the sum of $70,-173.80 plus interest in the amount of $13,-983.48 in favor of appellee, Gilmore Plant and Bulb Company, Inc. (Gilmore).

In presenting its nine points on appeal, the Department warns us that: “Due to the complicated nature of this cause a thorough reading of the Transcript and Record is essential.” To the foregoing admonition, Gilmore responds “that although this case is complicated, it does not require a thorough reading of the transcript and record”. Apparently, neither party was of the view that this “complicated” case could be simplified by utilizing the office of oral argument, since oral argument was not requested. Responding to the Department’s admonition, additional delay in resolving this 1971-1972 contract dispute has been incurred by this court’s reading of every word of the voluminous transcript and comparatively short record. And after so reading and reviewing, we are of the view that a considerable portion of the “complicated” case resulted from the propensity of each party to exhaust, in minute, testimony from the caravan of witnesses which was not material to the issues, and which the trial judge, while valiantly attempting to shorten the proceedings, generously permitted.

This suit was filed by Gilmore as a result of a beautification project in Naples, Florida, that it undertook pursuant to a contract with the Department. A major dispute arose between the parties at a point in time when Gilmore had almost completed the work called for in its contract. The dispute related to the organic content of a muck blanket which Gilmore installed in a lengthy median strip. After a delay of more than one month incurred by the dispute, it was discovered that the testing methods (if any) had not existed for many years. The dispute was resolved in January, 1972, by the Department’s State Construction Engineer in favor of Gilmore, who then completed the contract. The Department, after having paid Gilmore 90 percent of its contract price, offered to pay Gilmore the retainage of 10 percent if it would relinquish any further claim against the Department. Gilmore refused and sued the Department for its 10 percent retainage and additional damages. The Department counterclaimed for damages in the sum of $82,548.19, alleging deficiencies on Gilmore’s part as to organic content and installation of the muck blanket and as to over watering the entire project.

The major issue raised by the Department is that the jury’s verdict is not supported by competent substantial evidence. Having carefully read every word in the transcript, which may well be characterized as a continuing fracas between the parties’ experts and their attorneys, we have concluded that the patient and learned trial judge correctly entered the final judgment appealed.

AFFIRMED.

SMITH and ERVIN, JJ., concur.

      . Typical observations of the trial judge which appear in the record are: “I’m going to object to both of you characterizing the testimony.” (TR 95) “All right, let’s get the jury back in. That will be the question and I don’t want three more just like it.” (TR 123) “Don’t lead, counsel.” (TR 574) “I’m going to let it in over the objection of counsel to be noted for the record. The jury can evaluate from the light of all testimony as to what value it has.” (TR 636).

      . The facts, of course, are recited in a light most favorable to support the jury’s verdict.


author: TATE, Justice. MARCUS, Justice DENNIS, Justice,

text:
    STATE of Louisiana, Relator, v. Craig CULOTTA et al., Respondents.
    No. 57976.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 20, 1976.
    Dissenting Opinion April 6, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Sheila C. Myers, Asst. Dist. Atty., for plaintiff-relator.
    William Noland, New Orleans, for respondent Bruce Hardy.
    William J. O’Hara, III, New Orleans, for respondent Craig Culotta.
   TATE, Justice.

On the application of the state, we granted certiorari, La., 332 So.2d 865 (1976), to review the trial court’s suppression of certain evidence as illegally seized. The principal issue concerns the standing of the defendants to contest the legality of the search and seizure insofar as based on evidence obtained as the result of an illegal arrest of third persons. See La.Const. of 1974, Art. 1, Section 5.

(1)

The defendants are charged with illegal possession of certain drugs with intent to distribute them. The place of the offense is shown to be 850 Florida Boulevard, Rear, New Orleans. The drugs were found pursuant to a search and seizure of these premises as authorized by a search warrant.

Two of the defendants filed motions to suppress the drugs as illegally seized. The essential basis of the motions was that the search warrant was invalid, because the affidavit used to procure it was inadequate to furnish grounds for authorization for the search.

The trial court sustained the defendants’ contention. In holding the affidavit insufficient, the trial court concluded that: (a) much of the information contained in the affidavit was based on “double hearsay” and thus did not meet the reliability constitutionally required for validity of a search warrant based upon such an affidavit; and (b) some of the information was obtained because of the illegal arrest of third persons, which the defendants had standing to contest, if a basis of the present search, by reason of our state constitution of 1974.

(2)

In State v. Paciera, 290 So.2d 681 (La.1974), we summarized the principles applicable. We first noted that a search warrant may not be issued upon an affidavit indicating that the affiant has reasonable cause to suspect that the object of the search is in the premises. The affidavit must recite facts establishing to the satisfaction of the magistrate who issues the search warrant that probable cause exists to search the premises for the object sought.

In summarizing the constitutionally-mandated test of reliability, we stated, 290 So.2d 685-86:

“ * * * The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.”

In State v. Paciera we specifically rejected contentions similar to the present that “double hearsay” information could not per se be considered sufficiently reliable to justify issuance of a search warrant. Providing that the affidavit meets the tests of both reliability of informant and information above set forth, a search warrant may be validly based upon hearsay information which demonstrates a substantial factual basis for the search.

In Paciera (as in the present case), the affidavit was executed by one police officer based substantially upon information furnished by him by other identified police officers. The information was based upon these non-affiant officers’ own personal observations, as well as upon informational leads furnished to them by an un identified informant known by them (but not by the affiant) to be reliable, for reasons sufficiently set forth in the affidavit.

We concluded, citing United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), that an affidavit may be sufficient, “even if based entirely upon hearsay, when the detailed and specific showing made by it afford[s] a ‘substantial basis’ for crediting the hearsay due to corroborating circumstances shown.” 290 So.2d 686-87.

Paciera may also be considered as authority for holding that information furnished to an affiant police officer by other identified police officers, based upon their own first-hand observations, may be considered reliable; as may information furnished to these non-affiant identified police officers by an unidentified informant — providing, as to this latter information, the affidavit itself set forth sufficient factual specificity to credit the reliability both of the unidentified informant and of the information furnished by him to the non-affiant officers.

As will be shown in more detail, we find that the present affidavit meets the test of constitutional reliability set forth by Paci-era.

(3)

Before discussing the present affidavit, however, it may be well to note that, in both the cited decision and the present instance, the affidavit was substantially based upon substantial reliable and corroborating factual information established by first-hand observation of identified police officers, while the specific and detailed factual data secured from the unidentified informant (shown by the affidavit to be reliable) was in the nature of the initiating leads by which the police officers secured firsthand corroborating information justifying the search.

We emphasize that we are not here concerned with an affidavit where the probable cause for the search is furnished entirely by the information secured from an unidentified informant, known to be reliable not by the affiant but instead only by the hearsay report to the affiant by yet another officer, without other corroborating circumstances shown (as here) by further investigation by the police officers. As to such an affidavit, the issuing magistrate (or the reviewing court) might well wish to determine why the affidavit is not executed by the police with the first-hand report, rather than by another officer merely relaying on to the magistrate such information but without affording the magistrate an immediate opportunity to question the source of the information with regard to its reliability.

On the other hand, where as here the probable cause for the search warrant is shown by the correlation of information obtained by police investigation from numerous sources, we do not believe that the constitution mandates that each officer involved swear out a separate affidavit verifying each chain in the link of probable cause. Providing that the specific and detailed factual showing of information obtained by identified police officers meets the Paciera tests of reliability, we believe the affidavit to be sufficient if sworn to by only one or more of the police officers with personal knowledge as to some of the factual details of the showing, together with his (their) sworn statement of the report to the affiant(s) of the factual details within the personal observation or knowledge of identified non-affiant officers.

(4)

The application to search the premises at 850 Florida Boulevard for illegal drugs was executed by police officers McNeil and Barrere of the New Orleans Police Department. The affidavit shows that these officers participated in the surveillance of 850 Florida Boulevard, pursuant to information received from an identified Jefferson Parish detective, and it also shows certain information concerning an arrest made of two third persons by Orleans Parish police officers after these third persons had left the premises while under surveillance.

The affiants testified to factual information received (a) from Jefferson Parish Detective Schwabe and (b) concerning events in Orleans Parish after the affiants became involved in the surveillance of the Orleans premises searched.

(5)

The affidavit shows that the affiants received the following factual information from Jefferson Detective Schwabe:

1. A confidential informant, of recited past reliability in furnishing him reliable information, told Schwabe that he had personally been shown a large amount of drugs in a large cardboard box inside 817 Pasadena premises in Jefferson Parish (not the Orleans Parish premises searched). The informant there spoke with “Whitey”, a white male aged about 25, and another white male not known to him. They told the informant that the drugs had been procured from a drug store theft and that they intended to bring them into New Orleans on Wednesday (July 30), shortly after the conversation, to distribute them at retail.

2. The informant told them that “Whitey” drove a blue Volkswagon with a Baton Rouge or “A” license plate.

3. As a result of this information, Jefferson Parish officers Sigur and Whitehead initiated a surveillance of 817 Pasadena. These officers saw a blue 1969 Volkswagon, with license plate 132 A 283, parked in front of the premises. Shortly thereafter, two white males exited from the premises carrying a large cardboard box and entered the Volkswagon. These officers followed the Volkswagon into Orleans Parish. At this time, the Jefferson officers called one of the affiants, and the affiants and other Orleans narcotics officers proceeded to the scene.

(6)

At this time, we should note: The above information meets the Paciera tests as to reliability.

Schwabe, an identified police officer, is a reliable source of information, as are the identified Jefferson Parish officers whose observations were reported by him to the affiants. The information received by the affiants from these latter police officers is also reliable, since the affidavit set forth specific and detailed facts based upon their own personal observation during their surveillance.

Likewise, the affidavit demonstrates the reliability of Schwabe’s confidential informant, based upon reliable information obtained from him in the past which led to numerous arrests and subsequent convictions. The specific and detailed information obtained from this informant is also indicated as reliable, since based upon his own personal observation and upon his report of activity adverse to his own penal interest. State v. Turner, La., 337 So.2d 1090 (Rendered June 21, 1976); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Likewise corroborative of the reliability of his information (although not in itself probable cause for a search) is the specific information furnished by him as to the prospective use of a described vehicle in the intended transaction, insofar as this information was independently somewhat corroborated by the subsequent appearance of this vehicle at the scene, in accordance with the informant’s prior report that it would arrive. Cf. State v. Marks, La., 337 So.2d 1177, rendered October 6, 1976.

(7)

The affidavit continues by setting forth information gained after the affiant police officers arrived in the vicinity of 850 Florida Boulevard, the premises subsequently searched pursuant to the instant search-warrant. The Orleans officers were met by Jefferson Officer Sigur, who informed them that the two white males had exited the Volkswagon and entered the rear premises of 850 Florida Boulevard. The affidavit does not show that Officer Sigur saw them carry the cardboard box into the premises.

We should at this point note, as the trial court held, that probable cause to search 850 Florida Boulevard, is not thus far demonstrated by the facts above set forth. At the most, reasonable suspicion is shown to exist that the illegal drugs (initially observed by the unidentified informant) were in the residence. This might justify further police investigation, but not probable cause to search this residence.

(8)

The sufficiency of the affidavit and the validity of the search-warrant will, therefore, depend upon whether this initial showing (which justifies a reasonable suspicion of the premises) may be supplemented by the further facts shown by the affidavit after the Orleans officers joined in surveillance of the suspected premises with the Jefferson officers.

These relevantly show:

An hour or so later, two other white males (later identified as Piazza and Eden-field) exited the premises and entered a maroon Ford pickup. The vehicle was followed by three non-affiant officers (Jefferson Officer Sigur and Orleans Officers Kirkpatrick, Venezia, and Lewis). These officers subsequently stopped the Ford as it drove into a parking lot some distance away, and they arrested the occupants (Piazza and Edenfield) for illegal possession of narcotics discovered by subsequent search of the vehicle. After being Mirandaized as to their rights, Piazza and Edenfield gave a written statement indicating that they had purchased the drugs from inside of 850 Florida Boulevard from Hardy (alias “Whitey”) and Craig Culotta, defendants therein.

The trial court correctly held that, under the showing, the drugs secured from Piazza and Edenfield were the product of an illegal arrest and search and seizure executed without probable cause. State v. Kinnemann, La., 337 So.2d 441 (docket no. 57,581, September 13,1976); State v. Jones, 308 So.2d 790 (La.1975). Likewise, the statement secured as an immediate consequence of the illegal arrest is not immunized from being considered inadmissible by the Miranda warnings, since it is regarded as the fruit of the illegal arrest and search. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Thus both the drugs seized and the statements taken from Piazza and Edenfield cannot be used as evidence against them.

(9)

Nor, by virtue of the Louisiana constitution, can they be used as evidence against the present defendants, even though the illegal arrest and unconstitutional seizure was not directed against them but instead against third persons. Article 1, Section 5, of the Louisiana Constitution of 1974, specifically provides:

“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.” (Italics ours.)

As the committee report of the constitutional convention states, the specific purpose of the broadened constitutional protection against illegal searches and seizures was to afford standing to third persons aggrieved by the illegality of a search and seizure to contest its validity. The report states, 1 Official Journal of the Constitutional Conventions of 1973, p. 86 (Proceedings of July 6,1973), with regard to Section' 5:

“The 1921 provisions have been changed to stress that communications and property are included in the right to privacy. A search warrant is to include the lawful purpose or reason for the search. In addition, persons protected against illegal searches and seizures include not only the person whose house or property has been illegally searched but also any other person adversely affected by the illegal search.” (Italics ours.)

Professor Lee Hargrave summarizes the constitutional debates as to the section. Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L. Rev. 1, 20-24 (1974). He concludes, correctly in our opinion, that it was intended to give standing to third persons adversely affected, and “Thus, if evidence is obtained by an improper search or seizure, it cannot be used against anyone whose guilt it would tend to prove and thus practically cannot be used at all. The scope of the exclusionary rule is thus enlarged, with the expectation that its deterrent effect will be increased.” 35 La.L.Rev. 23-24. Accord, Jenkins, The Declaration of Rights, 21 Loyola 9, 29-30 (1975).

(10)

Nevertheless, the practical issue before us is more narrow than whether evidence or statements illegally taken from third persons may be admissible in evidence against the accused. The state does not now- attempt to offer the drugs and statements illegally obtained as evidence of guilt of the accused. If it did, for the reasons set forth, such evidence is inadmissible against the accused — if they object to its introduction —, not because of its lack of probative value but, rather, to effectuate broad constitutional policies designed to deter illegal governmental arrest, searches, and seizures.

The more-narrow issue before us is: Must evidence secured pursuant to an otherwise valid search-warrant, pursuant to a judicially-authorized search, be suppressed because part (although a crucial part) of the showing of probable cause made by the affidavit includes evidence and statements taken from third persons which, if objected to at the trial of guilt or innocence, are inadmissible against the accused?

In holding that the affidavit in part based upon such illegally obtained evidence was insufficient to authorize a valid search warrant, the conscientious trial court concluded, not unreasonably, that the accused defendants were thereby “adversely affected” by the unconstitutional arrest and search and therefore could contest the validity of both affidavit and search warrant on that ground.

Nevertheless, in this case of first impression, we respectfully differ with the trial court’s conclusion:

We do not believe that the scope of the constitutional provision was necessarily intended to exclude from the trial evidence otherwise untainted, secured through a search warrant, because part of the showing made in the affidavit used to secure the warrant is based upon evidence illegally obtained from third persons and inadmissible, if objected to at trial, against either them or the accused. (If the sole basis of the affidavit was such illegally-secured evidence, our conclusion might well be different.)

Examining the issue before us more closely, the probable-cause sufficiency of the affidavit is established if, in addition to the facts alleged up to the surveillance of 850 Florida Boulevard, the magistrate could validly consider the statements of Piazza and Edenfield, following their illegal arrest and search, that they had purchased the drugs in their possession from 850 Florida Boulevard. These statements, as we have noted, are inadmissible as evidence against Piazza and Edenfield, being the “fruit” of an unconstitutional arrest and search, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and are also inadmissible for the same reasons as evidence against the present defendants, who have standing to urge that they were unconstitutionally obtained, Article 1, Section 5, La. Constitution of 1974.

Thus, we are asked to suppress evidence secured after search pursuant to a judicially-authorized warrant, because on the allegations of the affidavit used to procure the warrant the evidence includes statements taken from third persons. The statements thus taken are alleged to have been improperly considered by the magistrate, because (if objection were made) those objecting could complain that the statements were the fruit of an illegal arrest and search and seizure.

The individual protections and deterrent policies constitutionally expressed by our provision against unreasonable searches and seizures, and giving standing to any person aggrieved thereby, may require suppression of (a) the drugs seized in the illegal arrest and (b) the statements of third persons which were the fruit of the illegal search (inadmissible jurisprudentially to effectuate the deterrent effect against governmental misconduct by suppressing the fruits thereof).

Nevertheless, we do not believe that the protections and policies so expressed by our constitution require us to hold invalid also (c) the affidavit based in part on the statement taken as a fruit of the invalid arrest of these third persons, (d) the search warrant otherwise valid except insofar as in part based (not on the unreasonable search of the third persons, but) upon the statement taken, and (e) the evidence seized as a result of the search pursuant to the judicially authorized search warrant. To hold that an initial governmental illegality invalidates all subsequent regularly-conducted governmental investigations and actions, no matter how attenuated the connection between the initial illegality and action presently attacked, is to afford a meaning beyond, in our opinion, the contemplated scope of the individual protection intended by our constitutional provision.

Here, for instance, the statement of the third persons included in the affidavit was not itself secured by an unreasonable search or seizure of persons or property, such as is prohibited by Article 1, Section 5. It is, however, a fruit of such an illegal arrest and search. The statement is therefore held to be inadmissible in order to inhibit governmental agents from violating the constitutional protection against illegal arrests and searches. The point we re-emphasize is that the taking of the statement itself does not directly offend the constitutional prohibition: The courts hold it inadmissible as evidence in order to re-enforce the deterrent effect of violations of the basic constitutional provision against unreasonable searches and seizures, not because the constitutional provision itself is violated by the statement taken.

In order to effectuate the constitutional protection, we are not required to hold that not only the statement itself is inadmissible, but also other evidence otherwise lawfully secured is likewise inadmissible, because one of the links in the chain of causation consisted of the statement.

Insofar as the present evidence seized pursuant to a search executed by a judicially-authorized warrant, we therefore conclude that the defendants were not “adversely affected”, within the meaning and purpose of the constitutional provision, by the prior illegal arrest and seizure of the third persons in violation of Article 1, Section 5, Louisiana Constitution. In our view, the causal connection between the initial unlawful conduct and the evidence actually sought to be suppressed has become so attenuated as to dissipate its initial taint, nor are the deterrent policies and individual protections expressed by the constitutional provision violated by so holding. See: State v. Jenkins, La., 340 So.2d 157 (Rendered October 14, 1976); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Annotation, Evidence— “Fruit of Poisonous Tree”, 43 A.L.R.3d 385, Section 8 (1972).

As stated in State v. Jenkins, at 340 So.2d 174: “In determining whether information obtained by officers in the conduct of an unlawful search was used to acquire other evidence against an accused, the test to be applied is not whether, but for the illegal search the evidence would not have been obtained, but rather ‘whether, granting establishment of the primary illegality, the evidence to which objection is made has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”

We therefore hold that Article 1, Section 5, does not require suppression of the evidence seized as a result of the judicially authorized search pursuant to the otherwise valid warrant. The present defendants were not “adversely affected”, within the constitutional meaning, by the initial illegal arrest and search of third persons, because with regard to the present search warrant, (a) the complained-of illegality is so attenuated in connection with the obtaining of the present evidence here sought to be suppressed, and (b) the means by which such present evidence was obtained are sufficiently distinguishable from the initial illegal arrest and search of the third persons.

Decree

Accordingly, we reverse the judgment of the district court, and we overrule the defendants’ motion to suppress certain evidence. We remand this case to the district court for further proceedings in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., concurs.

SUMMERS, J., concurs in result only.

MARCUS, J., concurs and assigns reasons.

DENNIS, J., dissents with reasons.

MARCUS, Justice

(concurring).

The majority correctly holds that the search in the instant case was lawfully conducted pursuant to a warrant based on probable cause and that art. 1, § 5 of the 1974 Louisiana Constitution does not compel the exclusion from a probable cause determination of evidence or statements obtained from third parties as a result of an illegal search or arrest.

In reaching this result, however, the majority construes La.Const. art. 1, § 5 to grant individuals a new and expanded right of standing to contest the use against them, at a trial on the merits, of evidence obtained in violation of the fourth amendment rights of others. The majority relies in its interpretation on certain statements recorded in the official journal of the constitutional convention. In State v. Roach, 338 So.2d 621 (La., 1976), a similar constitutional interpretation was suggested based largely on the convention debates and proceedings. Whether or not these extrinsic sources evidence an intent on the part of the convention delegates to create standing rights here recognized by the majority, it seems clear, in my opinion, from a reading of art. 1, § 5 that this intent was not translated into words and embodied in the constitutional provision.

It is well settled that the language of a constitutional provision is to be applied according to the most usual signification in which the words are generally understood. State v. Bradford, 242 La. 1095, 141 So.2d 378 (1962). Where a constitutional provision is plain and unambiguous, construction is excluded and no search for purpose and intent can be initiated. State v. Clark, 186 La. 655, 173 So. 137 (1937). This is particularly true with respect to the interpretation of a constitution, since it is presumed that the language of a constitution is selected with the utmost discretion. Western Union Telegraph Co. v. Railroad Commission, 120 La. 758, 45 So. 598 (1908).

La.Const. art. 1, § 5 (1974) provides as follows:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

On its face, this constitutional provision grants a broad substantive right to every person to be free from unreasonable governmental interference. I consider that the last sentence of the provision only confirms that any person whose rights, as set forth in the first part of the section, are violated has standing to urge the illegality of such conduct in an appropriate court. This interpretation of art. 1, § 5 is supported by the customary and usual meaning of the language in which it is written and is consonant with the federal conception of fourth amendment rights and the exclusionary rule fashioned to protect them in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1963). Also, it is in accordance with the United States Supreme Court decision in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). Conversely, I feel that the interpretation of the majority reads into the provision substantive rights not plainly set forth therein. Moreover, it is not in conformity with recent expressions of the United States Supreme Court demonstrating a studied reluctance to expand the scope and application of the exclusionary rule in the absence of clear proof that such extensions would have a significant effect on deterring illegal police conduct. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976).

In my opinion, the majority incorrectly relies on extrinsic sources in its interpretation of La.Const. art. 1, § 5 (1974) where the language is clear and unambiguous. After all, the people of this state approved by their ballots the constitution, not convention journals and debates. Accordingly, I respectfully concur.

DENNIS, Justice,

dissenting.

Although I fully agree with the majority’s general statements concerning the expansion of the ambit of protection against unreasonable searches and seizures contained in the Louisiana Constitution of 1974, see State v. Roach, 338 So.2d 621 (La.1976), I must respectfully dissent. I recognize that the use of the illegally seized evidence for the purpose of obtaining a search warrant is one step removed from using it as evidence at trial, which the majority correctly states would be prohibited. However, in my opinion, the effect upon the defendant by the unlawful search is too direct to be characterized as “attenuated” and does “adversely affect” the defendant in a manner against which the delegates and voters sought to grant protection in Article I, § 5 of the Louisiana Constitution of 1974.


author: CALOGERO, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. Ernest C. HAMILTON.
    No. 55435.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.

      Henry A. Politz, Chairman, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, John F. Pugh, Thibodaux, A. Russell Roberts, Me-tairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, for Louisiana State Bar Assn., Committee on Professional Responsibility, petitioner.
    Virgil M. Wheeler, Jr., Antonio E. Papale, Jr., New Orleans, for defendant-respondent.
   DISCIPLINARY PROCEEDINGS

CALOGERO, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disciplinary proceeding against Ernest C. Hamilton, a member of the bar of this state. The Committee in its petition relies upon the authority of Article 15, section 8 of the Articles of Incorporation of the Louisiana State Bar Association, as effective September 1, 1971, and is based upon respondent’s conviction in federal court for conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 371, 1341. This Court has original jurisdiction over these proceedings as provided in Article VII, section 10 of the Louisiana Constitution of 1921.

On April 3, 1967, Ernest C. Hamilton, respondent herein, was indicted along with certain other persons by the grand jury for the United States District Court for the Eastern District of Louisiana for conspiracy to commit mail fraud. On December 18, 1970, after a trial lasting almost two months, respondent and a number of his co-defendants were found guilty as charged. Respondent Hamilton was thereafter sentenced to serve three years in prison, which sentence was later amended to three years active probation. Respondent’s conviction was upheld by the Fifth Circuit Court of Appeals. United States v. Perez, 489 F.2d 51 (5th Cir. 1974). His application for writ of certiorari was denied by the United States Supreme Court on June 10, 1974. 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974).

On October 11, 1974, a petition for disciplinary action against respondent was filed with this Court. In response to that petition, respondent filed various exceptions to the proceedings, which this Court ordered referred to the merits. Respondent then answered the petition by way of a general denial, affirmatively asserting, however, that he was innocent of the charges for which he stood convicted and giving notice that he intended to produce evidence of mitigating circumstances. On December 11, 1975, a hearing was held before LeDoux R. Provosty, Jr., the Commissioner appointed by this Court to conduct the proceedings. Arts, of Incorp., La. State Bar Assn., art. 15, § 8(7)(b) (1971). At the hearing, the Committee on Professional Responsibility introduced into evidence the original petition for disciplinary action, the certificate of conviction of the United States District Court for the Eastern District of Louisiana, and a photostatic copy of the Fifth Circuit opinion in the case of United States v. Perez, supra.

At the hearing, respondent testified in his own behalf and presented three other witnesses: Daniel McGee and Mayo Perez, two of his clients in one of the automobile accidents which formed the basis of his conviction for conspiracy to commit mail fraud as well as Mary Smith Hamilton, his wife. Respondent also proffered the transcripts of testimony of other co-defendants and other persons who had testified in previous committee disciplinary hearings, as well as the twenty-two volumes of trial transcript in the federal criminal proceedings. Likewise, he introduced into evidence, admitted subject to certain Commission objections, the following: his original office files in the two cases which formed the basis of his conviction, several letters of character reference, and certain documents relating to respondent’s motion for a new trial in federal court. It is this evidence which constitutes the record in this proceeding.

The federal crime on which respondent’s conviction was based involved a scheme wherein a group of lawyers, doctors, and laymen defrauded insurance companies by staging fake accidents and then collected insurance settlements on the basis of false and/or exaggerated injuries. Their use of the United States mails offered the basis on which they were convicted in federal court for violations of the mail fraud statute. The scheme is described more fully in United States v. Perez, supra. Respondent Hamilton was charged and convicted on the basis of his participation in two of the staged automobile accidents. See Footnote three. Several attorneys were involved in the overall scheme, three of whom have already been disbarred by this Court. Louisiana State Bar Ass’n v. Loridans, 338 So.2d 1338 (La.1976) [hereinafter Loridans]; Louisiana State Bar Ass’n v. Shaheen, 338 So.2d 1347 (La.1976); Louisiana State Bar Ass’n v. Hennigan, 340 So.2d 264 (La.1976).

In response to the Committee’s petition for disbarment in this Court, respondent filed exceptions of no cause of action, no right of action, prematurity and vagueness; they were referred by this Court to the merits.

Respondent first argues that the petition fails to state a cause of action or a right of action because the provision under which the Committee proceeded, Article 15, section 8 of the Articles of Incorporation of the Louisiana State Bar Association, as amended, was effective September 1, 1971, and therefore could not apply to a crime committed prior to the adoption and effective date of the Article. He asserts that the application of this article to the crime he committed during the years 1965 and 1966 constituted a bill of attainder and an ex post facto law in violation of the state and federal constitutions.

The misconduct complained of by the Committee occurred during the years 1965 and 1966. At that time, a felony conviction was not, in itself, a ground for disbarment because it was the underlying misconduct, not merely the fact of criminal conviction for the misconduct, which gave grounds for a lawyer’s disbarment. Louisiana State Bar Ass’n v. Connolly, 201 La. 342, 9 So.2d 582 (1942); Louisiana State Bar Ass’n v. Leche, 201 La. 293, 9 So.2d 566 (1942). Respondent therefore complains that our previous rulings on this subject in Louisiana State Bar Ass’n v. Edwards, 322 So.2d 123 (La.1976) and Louisiana State Bar Ass’n v. Ponder, 263 La. 743, 269 So.2d 228 (1972) incorrectly set the date of conviction, rather than the date of the act of misconduct, as the pivotal date for rights and liabilities to attach under the Articles of Incorporation. We find no merit to this argument. It is the conviction of a crime which gives rise to these disciplinary proceedings. Thus, it is the date of that conviction which determines whether the Committee should proceed under the former articles or the current ones. Loridans, supra; Louisiana State Bar Ass’n v. Edwards, supra; Louisiana State Bar Ass’n v. Ponder, supra. Because respondent’s conviction became final on June 10, 1974, the date on which the United States Supreme Court denied his application for writ of certiorari, his conviction became final well after the current Articles became effective in September of 1971, and the Committee properly proceeded thereunder.

Respondent secondly filed an exception of prematurity, contending that the Association has failed to comply with Article 15, section 8 of the Articles of Incorporation. He contends that this provision requires an initial determination by the Association that the crime involved constitutes a “serious crime,” a finding that he says must be concurred in by this Court before disciplinary proceedings are instituted.

We have earlier dealt with this same contention in Loridans, supra. There, after more fully setting out the provisions of Article 15, section 8, we concluded that:

“Viewing the provisions of section 8 of article 15 in their entirety, it is clear that they call for an initial determination by the committee of the seriousness of the crime in the interim period after conviction but before finality of judgment by exhaustion of appeals. Such a preliminary determination allows for the suspension of an attorney during this time and thus affords better protection to the public and the courts. While the current Articles of Incorporation do provide for these preliminary steps, in the instant case we see no substantial violation of respondent’s rights by the failure of the Committee to take them. If that procedure had been followed, respondent would possibly have been under suspension during the five to six year period between his conviction in federal court and the present determination by this Court with respect to respondent’s disbarment. Instead he continued to practice law. Here the committee did not opt to proceed against respondent prior to the finality of his conviction. For whatever reasons they chose to wait, in our view their decision not to take any preliminary steps to discipline respondent does not give rise to any defense on his part to the initiation of the proceedings after his appeals have been exhausted and his conviction has become final.” Loridans, supra, 338 So.2d at 1343.

The same reasoning applies to respondent Hamilton’s exception of prematurity.

Respondent’s final exception complains that the petition is so vague and indefinite as to fail to inform him of the nature and cause of the accusation brought against him in sufficient particularity so that he may prepare his defense thereto. The language he attacks is the petition allegation that “the crimes of which respondent stands convicted have been determined by the Committee to be felonies and serious crimes and such as reflect upon the Respondent’s moral fitness to practice law.”

The petition sets out that respondent was found guilty by a jury on December 18, 1970, of violating 18 U.S.C. §§ 371,1341 and specifies that this crime is conspiracy to commit mail fraud. The facts that the conviction was affirmed by the Fifth Circuit Court of Appeals and that the United States Supreme Court denied writs on his conviction are likewise included. Attached and made part of the petition is a certified copy of the certificate of conviction as well as a photostat of the Fifth Circuit opinion which sets out in detail the dates, places, and participants in those accidents found to be fraudulent in which respondent was involved. Also, the three overt acts of which respondent was accused are specifically set out there, as well as details of the entire scheme.

There simply can be no doubt that this petition stated with sufficient particularity the serious nature of the crime of which respondent stood convicted. Although a petition for disbarment on the basis of a crime in some circumstances might be vague if it failed to particularize how the commission of the crime affected a petitioner’s moral fitness to practice law, certainly here there is no such problem because the insurance fraud scheme itself — described with particularity in the appellate opinion — strikes at the very heart of the legal profession: the use of his skills as a lawyer to fraudulently deprive insurance companies of money by means of fake claims is anathema to a profession the most significant attribute (indeed justification) of which is integrity and trust. See Louisiana State Bar Ass’n v. Shaheen, supra. For this reason, we find that the petition for disciplinary action filed against Ernest Hamilton does not, because of its vagueness, generality, or indefiniteness, fail to inform him sufficiently of the nature and cause of the accusation against him so that he might prepare his defense.

Having dealt with each of the exceptions filed by respondent and having found them meritless, we turn now to the exceptions he has filed to the report of the Commissioner. The first of these urges that the Commissioner erred in failing to grant his motion for a directed verdict dismissing the petition filed by the Committee.

“That the crime of which Respondent stands convicted involves misconduct or moral turpitude, there can be no question. The participation by respondent in an activity described by Judge Brown as an ‘American tragedy . , , the Louisiana-wide get-rich-quick scheme involving the staging of fraudulent automobile accidents for the purpose of creating false personal injury claims,’ constitutes a most blatant breach of legal professional ethics. [United States v. Perez, supra.] Not only do we have an instance whereby an attorney has debased his profession by practicing same in a manner designed to fraudulently obtain funds from insurance companies, but one in which an attorney has attempted to make the courts an unwitting accomplice. Such conduct evidences a remarkable lack of regard not only

At the hearing, the Committee introduced into evidence the petition for disciplinary action, which, as recited previously, had appended to it a copy of the certificate of conviction and a photostatic copy of the Fifth Circuit opinion. The respondent then moved for a directed verdict on the grounds that the Committee had failed to introduce any evidence that respondent had committed a “serious crime,” as he alleges is made necessary under Article 15, section 8 of the Articles of Incorporation. Respondent claims that this failure obviated his having to introduce evidence regarding the serious or non-serious nature of the crime.

The “serious crime” language appears in subsection (1) — (6), section 8 of Article 15 which deals with suspension after conviction of a crime but prior to finality thereof. The language of Article 15 which relates to the disbarment stage of disciplinary proceedings, and correspondingly the matter presently before this Court, appears in subsection (7)(d) of Article 15 — “the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof.” It is of course true that conviction of a crime no doubt would not warrant discipline, certainly significant disciplinary action, unless it were serious. Nonetheless the issue in this proceeding is simply whether the crime warrants discipline. This central issue in these proceedings we shall discuss hereinafter.

There is no merit to respondent’s claim that, because no evidence was introduced by the Committee to show the crime was serious, he was improperly denied a directed verdict.

Next, respondent argues that the Commissioner erred in failing to admit the testimonial and documentary evidence proffered by respondent. We are not told exactly which evidence it is respondent complains about, but we note from the record of the hearing that there were many documents proffered but not allowed introduced into evidence including the entire twenty-two volumes of testimony in the federal court as well as other evidence as previously described. Some of this same evidence and similar evidence were proffered at the Committee hearings of the other lawyers involved in this same criminal action. In dealing with this issue, we have previously stated that: F.Supp. 670 (S.D.N.Y.1974). In addition, one of the essential elements of the crime of conspiracy to violate a criminal law is knowledge and intent. See United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); United States v. Garafola, 471 F.2d 291 (6th Cir. 1972); United States v. Koenig, supra. As noted by the United States Court of Appeal, Fifth Circuit, in its opinion affirming respondent’s conviction, United States v. Perez, supra, at 61, 62:

“[A]rticle 15, section 8, paragraph 7(d) of the Articles of Incorporation of the Louisiana State Bar Association provides as follows:
‘At the hearing based upon the respondent’s conviction of a crime the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.’ (Emphasis added) for the law but for our constitutional system of justice. Participation by an officer of the court in such conduct simply cannot be tolerated.”
“In addition, article 15, section 8, paragraph 7(c) states that ‘the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.’ These provisions were clearly designed to put an end to an examination of respondent’s guilt or innocence of the crime of which he has already been convicted and to permit only the introduction of mitigating circumstances that are not inconsistent with that guilt.
* * * * * *
“One of the essential elements of mail fraud as set forth in 18 U.S.C. § 1341, is a conscious, knowing intent to defraud. United States v. Payne, 474 F.2d 603 (9th Cir. 1973); United States v. Koenig, 388
‘A review of the record has convinced us that the evidence adduced, both direct and circumstantial was adequate to warrant the inference that all of the participants had entered into this concerted program. To conspire is to agree — the presence of an agreement is the primary requirement for the establishment of a conspiracy, the commission of an overt act in furtherance being attendant.
‘Here, there was direct, positive testimony, if credited, from which the jury could find that each of the defendants, appellants here, were participants in one overall conspiracy. With hardly any exception, the testimony squared with the common sense of the scheme.’
“To permit respondent to offer evidence at his hearing before the Committee on Professional Responsibility tending to show his lack of knowledge and/or intent would be to admit evidence ‘inconsistent with the essential elements of the crime for which he was convicted . .’ In direct conflict with the terms of article 15, section 8, paragraph 7(d) of the Articles of Incorporation of the Louisiana State Bar Association. We therefore conclude that the testimony [at issue] insofar as such testimony seeks to negate any knowledge or intent on the part of respondent, was inadmissible at the hearing and will be disregarded by this Court. To hold otherwise would require this Court to retry respondent despite the fact that he was convicted after trial by jury, and despite the fact that his conviction was affirmed on appeal. It would also be in contravention of the specific language of the Articles of Incorporation that ‘the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.’
“The foregoing discussion is not intended to foreclose an inquiry into the facts surrounding the commission of the offense insofar as they reflect upon the character or quality of the criminal conduct or a respondent’s degree of complicity therein. See Louisiana State Bar Association v. Edwards, 322 So.2d 123 (La.1975). It merely indicates that the reference to ‘mitigating circumstances’ does not relate to mitigating circumstances with respect to respondent’s guilt or innocence of the crime, or with respect to the essential elements of that crime, but rather relates to mitigating circumstances which appropriately bear upon ‘whether the crime warrants discipline and, if so, the extent thereof.’ Thus evidence of ‘mitigating circumstances not inconsistent with the essential elements of the crime’ would include the character of the misconduct on which the conviction was based and, in appropriate cases, the degree of respondent’s complicity, as well as evidence relative to the reputation of respondent, his post-conviction conduct, the regard in which he is held by members of the legal profession and the community in which he resides, family circumstances and the like.” Loridans, supra, 338 So.2d at 1344.

Our holding there governs this case. While respondent may introduce evidence at the hearing which reflects upon the character or quality of the criminal conduct or on his degree, of complicity therein, he may not introduce or rely upon, for exculpatory purposes, evidence which relates only to his guilt or innocence of the crime, or to the essential elements of the crime. We have studied all of the evidence proffered at the hearing. Those materials which are merely exculpatory in nature and which go only to the guilt or innocence of respondent for the crime of which he was convicted we have disregarded because the determination as to his guilt is final and no further inquiry into that conviction may be made. Some of these materials also contain, however, evidence of the “character of the misconduct on which the conviction was based,” as well as “the degree of respondent’s complicity.” Loridans, supra, at 1345. Since we have examined the evidence which was proffered, we find no prejudice to respondent in the Commissioner’s complained-of failure to allow respondent to formally introduce those documents into evidence.

The Commissioner recommended to this Court that “respondent’s crime bespeaks of his moral unfitness to practice law and calls for his disbarment as an appropriate disciplinary action.” Respondent’s final argument, and the one he fully briefs, is his contention that the evidence adduced at the hearing is insufficient to warrant disbarment.

In this regard, he argues initially that he in fact had no knowledge that the collisions in which he represented claimants were fraudulent. Such an argument is not appropriate in this disciplinary proceeding because knowledge is an essential element of the crime of conspiracy to commit mail fraud and respondent’s final conviction for that crime precludes further inquiry into the question of Hamilton’s knowledge, or lack of it, of the fraudulent nature of the collisions. Loridans, supra.

Respondent further argues, however, that this Court, in its determination of “whether the crime warrants discipline, and if so, the extent thereof,” pursuant to Article 15, section 8(7)(d) of the Articles of Incorporation, should examine these facts: that he was charged with being involved in only one of the nine collisions; that the overt acts he was charged with committing are wholly consistent with innocent representation of legitimate clients; that he withdrew from the prosecution of the second fraudulent claim; and that he did not profit financially from his participation in this scheme. Also, he introduced evidence that he is fifty-two years of age with two small children, a wife, and an aged mother almost totally dependent on him for support; that a disbarment would cause financial and emotional hardship to him and his family; that even after his indictment and conviction he was held local and national offices in the Veterans of Foreign Wars. Additionally, he states that his case is different from the disciplinary proceedings against attorneys Shaheen, Hennigan and Loridans because each of them was charged in at least one substantive count, while he was charged only in the conspiracy count and because, according to him, there was substantive proof of their knowing complicity in the scheme while there was only an inference adduced as to his own knowledge of the conspiracy.

Although most of the factors respondent urges us to consider are properly before us as mitigating circumstances, some of these factors, particularly the assertion as to proof of respondent’s knowledge of the fraudulent aspect of these collisions, will not be considered by this Court because any inquiry into an essential element of the crime, such as knowledge, is foreclosed by the final conviction. When we weigh the mitigating factors against the gravity of the offense and its direct relationship to perversion of the attorney’s integrity and professional responsibility, we conclude that the proper disciplinary action in this case is disbarment. As we have noted previously, see Louisiana State Bar Ass’n v. Shaheen, supra, the disbarment of an attorney is not so much for punishment of the attorney as it is for preservation of the integrity of the courts and the salutary effect it has upon other members of the bar. We are convinced that the participation of respondent in this illegal scheme far outweighs those factors he urges in mitigation, and we see no substantial difference between his participation in the scheme and that of the other attorneys involved. We therefore accept the recommendation of the Commissioner that under the circumstances of this case the appropriate disciplinary action is disbarment.

For the reasons assigned, it is ordered, adjudged and decreed that Ernest C. Hamilton be and hereby is disbarred from the practice of law in Louisiana on and after the date of this decree and that, accordingly, his license to practice law be cancelled. Respondent is to bear all costs of this proceeding.

TATE, J., is recused, having served as a character witness.

DENNIS, J., dissents for the reasons stated in LSBA v. Shaheen, 338 So.2d, 1347 (La.1976).

ON APPLICATION FOR REHEARING

PER CURIAM.

Rehearing denied. State v. Fourchy, 106 La. 743, 31 So. 325 (1901), relied on by defendant, is distinguishable from the case at bar.

TATE, J., recused.

DENNIS, J., is of the opinion a rehearing should be granted.

      . At the time the petition for disciplinary action was filed by the Louisiana State Bar Association on October 11, 1974, the 1921 Constitution was still in effect. The pertinent jurisdictional authority is now contained in Article V, section 5 of the Louisiana Constitution of 1974.

      . Many of the participants were charged and convicted of substantive violations of the mail fraud statute, 18 U.S.C. § 371, as well as with conspiracy to commit mail fraud, 18 U.S.C. §§ 371, 1341. One of the other attorneys indicted, Lloyd Hennigan, was convicted only of the conspiracy count, although he was charged with both substantive and conspiracy counts. Respondent herein, however, was charged with and convicted of only the single conspiracy count.

      . The government based its overall indictment on nine allegedly fraudulent automobile collisions. Respondent Hamilton represented participants in two of these accidents: McGee and Perez, who were involved in a November 3, 1966 accident in Bossier City, Louisiana, and Winfred Spell and Anne DeVille, who were involved in a March 10, 1965 accident in Pine-ville, Louisiana.

      . The original petition and Commissioner’s report mistakenly related that respondent had been convicted of two crimes, violations of the substantive law of mail fraud as well as conspiracy to commit mail fraud. The Committee has amended its report so as to correct this error.

      . On the question of the serious nature of the crime, however, we deem it worth noting what the Commissioner had to say in this regard:

      . Actually, respondent was charged with being involved in two of the collisions. See note 3.

      . In support of his contention that he did not profit from the scheme, he sets forth that what fee he earned in the first case was offset by advances he lost in connection with the second case.


author: DIXON, Justice.

text:
    Jerry D. BUNCH v. UNDERWRITER’S AT LLOYD’S LONDON et al.
    No. 58162.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.
    Charles W. Wilson, III, Watson, Blanche, Wilson & Posner, Baton Rouge, for plaintiff-applicant.
    John V. Parker, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendant-respondent.
   DIXON, Justice.

This suit arises under a policy of insurance written by defendants on the life of “Copy Cajon,” a quarter horse owned by plaintiff and used for show purposes. Judgment for plaintiff in the district court was reversed by the Court of Appeal, 331 So.2d 851 (La.App. 1st Cir. 1976), and we granted writs to examine the application of the policy exclusion against intentional slaughter.

In May of 1974 “Copy Cajon” was ill; upon an acute episode in August of 1974 the illness was diagnosed as equine infectious anemia (swamp fever). It survived the acute episode, but, since the disease is admittedly incurable, it remained a carrier of the disease, which is transmitted from the blood of one animal to that of another.

The policy exclusion involved provides:

“1. This Insurance does not cover intentional slaughter, whether by or under the order of any government or public or local authority or any person or body having jurisdiction in the manner, (sic) or otherwise; except that the Underwriters will not invoke this particular exclusion as a defence.
“(a) where the Underwriters shall have expressly agreed to the destruction of the animal, or,
“(b) where an insured animal suffers an injury or is afflicted with an excessively painful disease and a qualified Veterinary Surgeon appointed by the Underwriters shall first have given a certificate that the suffering of that animal is incurable and so excessive that immediate destruction is imperative for humane reasons, or,

The record in this case is brief. Two veterinarians, plaintiff and a horse trainer testified for the claimant; one veterinarian testified for the insurer. There is no dispute as to the nature of the malady — a viral disease transmitted by insects, with an onset that is rapid and which may be fatal, or may be followed by an anemic condition of varying severity which might leave the horse either debilitated or with a normal appearance. Except for a blood test that was positive for swamp fever, “Copy Ca-jon” appeared healthy at a veterinary examination nine months after the diagnosis of the disease and was about a hundred pounds overweight, in no apparent pain.

Both plaintiff’s experts were of the opinion that the horse should have been destroyed for “humane reasons” and to protect other animals from the spread of the disease. Neither, however, testified to a painful episode except one in August of 1974, when the horse was very sick and feverish. They were of the opinion that horses with swamp fever “suffer a little every day,” and that the pain would be “more like an abscess toothache its got to live with every day.” No one testified that “Copy Cajon” manifested such pain.

Plaintiff argues that the exclusionary clause is ambiguous and, therefore, must be construed against the insurer. The policy excludes intentional slaughter of an animal, except when it “is afflicted with an excessively painful disease . . . ” and the suffering is incurable “and so excessive that immediate destruction is imperative for humane reasons . . . ” This exception to the exclusionary clause is clear and unambiguous. The policy insures against death of the animal, but not against intentional slaughter, unless the animal suffers from excessive pain which is incurable and “so excessive that immediate destruction is imperative . . . ” The record is devoid of evidence that “Copy Cajon” suffered such pain.

Infectious diseases are mentioned in another clause in the policy. “Livestock Clause No. 1” is a part of coverage of animals in transit. That clause lists several risks which are excluded, including “. slaughter by authorities through infectious diseases are absolutely excluded.” It is clear that the insurers, from the terms of the policy, intended to exclude from coverage intentional destruction of diseased animals unless in such pain that immediate destruction is imperative.

The policy also provides that the insurer, upon receiving notification that the animal was afflicted with an excessively painful disease, could send a veterinarian to examine the animal. Plaintiff contends that the insurer’s failure to “investigate” the horse’s illness in this case creates liability even though coverage is not provided for intentional slaughter in this instance. The insurer knew the horse had swamp fever and further investigation was unnecessary. This argument lacks merit.

The policy is clear and unambiguous; intentional slaughter is not covered in this case. Plaintiff has not referred this court to any authority to alter this conclusion.

For the foregoing reasons, the Court of Appeal judgment is affirmed, and the costs of this appeal are to be borne by plaintiff.


author: SUMMERS, Justice.

text:
    WILLIAM T. BURTON INDUSTRIES, INC. v. M. D. WELLMAN, Jr.
    No. 58394.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.

      Walton J. Barnes, Barnes & Barnes, Baton Rouge, for defendant-applicant.
    William J. Clarkson, Camp, Carmouche, Palmer, Carwile & Barsh, Lake Charles, for plaintiff-respondent.

       MARCUS, J., was of the opinion that a rehearing should be granted.

   SUMMERS, Justice.

William T. Burton Industries, Inc., instituted this action on April 23, 1974, against W. D. Wellman, Jr., to fix the boundary between its lands described as

The Northwest Quarter of the Northwest Quarter (NW-Vi of NW-Vi) of Section Twenty (20), Township Two (2) North, Range Five (5) West, in Vernon Parish,

and the lands of Wellman being

The North half (N-Vfe) of the Northeast Quarter (NE-V4) of Northwest Quarter (NW-V4) of Section Twenty (20), Township Two (2) North, Range Five (5) West.
Also beginning at the Southwest Corner of Northeast Quarter (NE-Vi) of Northwest Quarter (NW-V4) of Section Twenty (20), Township Two (2) North, Range Five (5) West; thence running North 220 yards, thence East 110 yards, thence South 220 yards, thence West 110 yards to point of beginning.

Burton’s petition alleged that its property was acquired on May 2, 1955, and that Wellman, or his predecessor in title, had erected fences along the east boundary of its property and wrongfully claimed that the fences constituted the proper boundary line separating their properties.

Burton prayed that a surveyor be appointed to survey the properties and file a proces verbal of his work according to law, and that there be judgment fixing the boundaries.

Before answering, Wellman filed a peremptory exception of prescription, alleging that Burton’s cause of action was prescribed by the prescription of ten, twenty and thirty years under the provisions of Article 852 of the Civil Code. The exception was tried, evidence was adduced, and the trial judge maintained Wellman’s plea of thirty years prescription. The boundary between the estates of Burton and Wellman was accordingly fixed and established as the fence line existing between said estates as established, marked and maintained by the erection of that fence in 1933, and as maintained and continued by Wellman and his predecessors in title from that date to the present time.

Burton appealed to the Third Circuit where the judgment of the trial court was reversed, and the case was remanded to the trial court. The Court of Appeal was of the opinion that the trial court erred in fixing the boundary line in the instant case without prior appointment of a surveyor, without the filing of a proces verbal of the surveyor’s work and without a trial of the case on the merits.

At the outset it is necessary to consider the Court of Appeal’s finding that in this boundary action the validity of the plea of prescription could not be determined in the trial of a peremptory exception prior to the appointment of a surveyor and a trial on the merits.

The thirty-year prescription provided for by Article 852 of the Civil Code and maintained by the trial judge on the basis of Wellman’s peremptory exception is acquisitive prescription. Thereby a mere possessor acquires the ownership of the property he possesses by the continuance of his possession during the time fixed by law. La.Civil Code art. 3457-58.

Wellman’s exception is peremptory because its function in asserting acquisitive prescription is to have the plaintiff’s action declared nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action. La.Code Civ.Pro. art. 923. As such the peremptory exception may properly raise the plea of acquisitive prescription. La.Code Civ.Pro. art. 927; Montgomery v. Breaux, 297 So.2d 185 (La. 1974).

A question has been raised by the Court of Appeal opinion pertaining to the state of this record. When the appeal was taken to the Court of Appeal from the judgment of the trial court, counsel for Burton filed a designation setting forth those portions of the trial court record which were to constitute the record on appeal. La.Code Civ.Pro. art. 2128. This designation referred to the petition, interrogatories and answers thereto, the judgment, reasons for judgment, motion and order of appeal and the exhibits. Wellman made no designation. The transcript of testimony, therefore, is not included in the record. However, the trial judge has favored the record with a detailed and lengthy statement of facts which are sufficient for the determination of the issue presented. At the trial of the exception Burton offered no witnesses to refute the testimony of Wellman’s witnesses.

As the property descriptions indicate, Wellman’s property lies east of and contiguous to the Burton property. The “ideal” boundary between the two tracts is, therefore, the east line of the northwest quarter of the northwest quarter of section 20, or the west line of the northeast quarter of the northwest quarter of section 20, as shown by official government surveys.

According to Wellman’s witness Otis Car-ruth, he once owned the land now owned by Wellman. He and his father, J. 0. Carruth, bought a forty-acre tract in the elder Car-ruth’s name from Gulf Lumber Company when Otis was just a boy. At the time it was cut-over timber land. Later, on or about January 3, 1933, the Carruths divided the property, and Otis received the north half of the northeast quarter of the northwest quarter of section 20. He immediately enclosed the property he received by constructing a fence on all sides. At the same time he built a house on the property, where he lived until 1945. Until he sold the property to W. C. Jeter in July 1945, he farmed the entire acreage, planting and cultivating cotton, corn, peanuts and like products.

Carruth testified the tract was entirely fenced to keep cattle out of his field as most cattle roamed at large in that area. The fence was constructed of split pine and net wire. In connection with the building of the fence, Carruth hired Charlie Smith, who did surveying in the area, to set the corners of his property and mark them with stobs. He built his fences accordingly. Carruth had visited the property two weeks before the trial and found the fence to be in the same position it was in when he built it in 1933. On his visits to the neighborhood from time to time since he sold the property he had occasion to see the fence, and, during this time, it remained substantially as he built it.

Carruth testified that no one disputed his western boundary and that he cleared the property to the boundaries and maintained the fence during the time he was there.

Annie Lee Jeter testified that she and her husband bought the property from Otis Carruth in 1945, where they lived until the property was sold to Wellman in 1951. The property was fenced when the Jeters acquired it, and they maintained the fencing and farmed the property within three feet of the fence until it was sold to Wellman. Since then, she had seen the property occasionally and the fences were still in the same places, as before. No changes were made by the Jeters in the fence lines and the lines were never questioned by others.

Ike Morrison lived in this area since 1934 and knew the Jeters from 1938. In driving a school bus from 1938 to sometime in the mid-sixties he passed the property twice a day on school days; he stated the fences have always been in the same place. Three other witnesses confirmed these facts.

Wellman testified that he has owned the property since 1951 and has maintained the site as a home for 23 years or more, having rebuilt the Carruth house during that time. He viewed the property before he made the purchase, saw the fences surrounding it and has maintained those fences since, in basically the same condition and in the same position. The fences have remained intact. No challenge to his fence line was made until this suit was brought. He has also cultivated the property within the fence lines and knew it to be cultivated by Car-ruth and Jeter before he bought it. Well-man’s wife corroborated his testimony. Deeds to establish transfers of title from Carruth to Jeter and from Jeter to Well-man are part of the record.

The evidence establishes without contradiction that a visible boundary between the Burton and Wellman property, evidenced by a fence, has existed without interruption and was maintained by the successive owners for more than thirty years. The case is therefore governed- by Article 852 of the Civil Code:

“Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one cannot prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.”

Possession to a physical boundary for thirty years, like the acquisitive possession of thirty years established by Article 3475 of the Civil Code, entitles the possessor to the ownership of the property possessed. An obvious public interest requires that boundaries established for more than thirty years should not be disturbed, and the law so provides.

The question is resolved by this Court’s holding in Session v. Hemperley, 233 La. 444, 96 So.2d 832 (1957) where this lucid statement of the law is found:

“[Wjhere there is a visible boundary which has been in existence for thirty years or more and the defendant in a boundary action and his predecessors in title have, in addition to the land described in the title, actually possessed land extending to that visible boundary, a plea of prescription of thirty years should be sustained. It is our view that for the rule to be applicable two conditions must concur: First, there must be a visible boundary, artificial or otherwise; second, there must be actual uninterrupted possession, either in person or through ancestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within the visible bounds.”

When these conditions are fulfilled, as they are in the case at bar, the absence or failure of consent on the part of the contiguous owner cannot affect the rights that have accrued by operation of law to the possessor under the thirty-year prescriptive plea.

Although the judgment rendered by the trial court attempted to describe with particularity the location of the. disputed boundary, there is no reliable evidence in the record on which an accurate description can be based because no surveyor has been appointed and no survey or proces verbal thereof has been made. This Court, therefore, can only affirm the factual findings of the trial judge. Thus the boundary has not been judicially “fixed” as the action in boundary requires under the circumstances. In the absence of agreement between the parties, that must be done by a sworn surveyor of this State, who shall be bound to make a proces verbal of his work in the presence of two witnesses. La.Civil Code arts. 833-39.

While the appointment of the surveyor should properly precede the production of evidence to resolve the differences between the contiguous owners, in this case that was not done. But this does not mean that the evidence taken on the plea of prescription and the judgment rendered there is to no avail. All that remains to be done to judicially fix the boundary is to have a surveyor appointed by the trial judge to survey the ideal boundary between these owners and to show the relation of the fence to that boundary. Thereafter, the trial judge will render a judgment, based on that survey giving a particular description by measurements relating the fence line as the true boundary to the ideal boundary and making reference to the plat of survey, all to be filed of record in the office of the Clerk and Recorder for the Parish of Vernon. Bollin v. Stafford, 297 So.2d 711 (La.App.1974); Johnson v. Horton, 262 So.2d 158 (La.App.1972); Robertson v. Morgan, 116 So.2d 141 (La.App.1959).

A survey should be made despite the fact that the issue of possession of the property within the fence line for thirty years has been satisfactorily established in Wellman’s favor. Such a result is dictated by the Code when it declares that an action of boundary cannot be prescribed against. La.Civil Code arts. 824-25; La.Code Civil Pro. art. 3691. And a survey is made a necessary part of an action in boundary. La.Civil Code arts. 833-39; La.Code Civil Pro. art. 3692. It is a method the law prescribed to bring certainty to the resolution of the question and set the boundary at rest among neighbors. The survey serves moreover to preserve record evidence of the boundary by confirming the location of the fence line.

From this record and considering the circumstance of Wellman’s long undis-

turbed and uninterrupted possession, together with Burton’s obviously erroneous contention that Wellman wrongfully claimed that the fence was the proper boundary, Wellman should not be taxed with the costs of these proceedings or the survey to be made in connection therewith. There was in fact no justifiable dispute between the parties, as Burton’s failure to present evidence illustrates. La.Code Civil Pro. art 2164; Derouen v. Poirier, 136 So.2d 131 (La.App.1962). In these circumstances, Article 663 of the Civil Code requiring that fixing of the boundary be at the joint expense of the parties does not apply. Savoie v. Savoy, 262 So.2d 582 (La.App.1972); Brashears v. Hood, 137 So.2d 88 (La.App.1962).

For these reasons assigned, the case is remanded to the trial court to be proceeded with in accordance herewith.


author: MARCUS, Justice.

text:
    Joseph POLOZOLA v. GARLOCK, INC., et al.
    No. 58404.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.

      Boris F. Navratil, Breazeale, Sachse & Wilson, Baton Rouge, for third party plaintiffs-applicants.
    John Swanner, William C. Kaufman, III, Seale, Smith & Phelps, Baton Rouge, for third party defendant-respondent.
   MARCUS, Justice.

National Maintenance Corporation, an industrial maintenance contractor, on November 4, 1970 contracted with Dow Chemical Company to maintain Dow’s production facilities at its plant in Plaquemine, Louisiana. Dow also had a similar contract with H. E. Wiese, Inc. The two industrial contractors, Wiese and National Maintenance, divided their maintenance responsibilities within the Dow complex along certain geographical lines. However, Wiese employees frequently worked in the area of the plant over which National Maintenance had primary responsibility for maintenance. Similarly, National Maintenance employees often worked in the area of the plant generally assigned to Wiese.

On August 20, 1971, Joseph Polozola, a pipefitter carried on the Wiese payroll, was injured when a jet of liquid propylene oxide shot out from a valve flame that he was repairing and struck him in the face. At the time of the accident, he was working in the area of Dow’s facility assigned to National Maintenance. Polozola brought an action for damages against Garlock, Inc., the manufacturer of the valve, against National Maintenance and one of its supervisors, Cecil Voss, and against three of Dow’s supervisory employees, Jon Kiggans, David Schneblen and Bill Garlington, alleging that their negligence caused his injuries. The three Dow employees denied liability and alternatively filed a third party action for indemnity against Wiese and National Maintenance as well as Hartford Accident & Indemnity Co. and Fireman’s Fund Insurance Co., the insurers of Wiese and National Maintenance respectively. Pursuant to indemnity agreements contained in the maintenance contracts between Dow and the two contractors, third party plaintiffs demanded indemnification against all loss, costs, and expenses (including attorney’s fees) that they would incur as a result of Polozola’s claim.

Polozola’s claims against Jon Kiggans, David Schneblen and Bill Garlington, the three Dow employees, were subsequently settled and a limited judgment of dismissal was entered specifically reserving all other rights of the parties, including the right of the Dow employees to recover judgment on their third party demand for indemnification. Associated Indemnity Corporation, the liability insurer of Dow and its employees, contributed the major portion of the funds paid to Polozola in settlement of his claim against the Dow employees, and accordingly intervened in their indemnity demand as their subrogee.

National Maintenance and its insurer thereupon filed a motion for summary judgment seeking dismissal of the third party demand for indemnity on the ground that the indemnity clause of the maintenance contract between Dow and National Maintenance did not entitle Dow employees to indemnification against losses caused by their own negligence. The trial court granted the motion for summary judgment and dismissed the third party demand. The court of appeal affirmed. 334 So.2d 530 (La.App. 1st Cir. 1976). Noting that its decision was inconsistent with Lee v. Allied Chemical Corp., 331 So.2d 608 (La.App. 1st Cir.), cert. denied, 337 So.2d 525 (La.1976) (“judgment not final”) which allowed indemnification under a similar indemnity clause, upon third party plaintiffs’ and in-tervenor’s application we granted certiorari. 338 So.2d 287 (La.1976).

The issue before us is whether National Maintenance has obligated itself under the maintenance contract with Dow to indemnify the three Dow employees and their liability insurer against the loss and expense that they have incurred in the defense of and settlement of Polozola’s claims.

The indemnity agreement is contained in article VI of the contract between Dow and National Maintenance. It provides as follows:

ARTICLE VI-INDEMNITY

6.1 Contractor assumes the entire responsibility and liability and will protect, indemnify and hold harmless Dow, its agents, servants and employees from and against any and all losses, expenses, demands and claims made against Dow, its agents, servants and employees, by Contractor or its subcontractors, or any employee, agent or servant of Contractor or its subcontractors or any other third person because of injury or alleged injury (including death), whether caused by Dow’s negligence or otherwise, arising from any source while Contractor or its subcontractors, or any employee, agent or servant of Contractor or its subcontractors are on premises owned, operated or leased by Dow or under the control of Dow, or while Contractor or its subcontractors, or any employee, agent or servant of Contractor or its subcontractors are performing under this agreement, and Contractor agrees to defend any suit, action or cause of action brought against Dow, its agents, servants or employees, based on any such alleged injury, and to pay all damages, costs and expenses, including attorneys’ fees, in connection therewith or resulting therefrom. (Emphasis added.)

The agreement states that National Maintenance will indemnify Dow, its agents, servants or employees against claims made by National Maintenance or its subcontractors, agents, servants or employees because of injury “whether caused by Dow’s negligence or otherwise.” The court of appeal noted that the phrase “whether caused by Dow’s negligence or otherwise” fails .to include Dow’s agents, servants and employees. The court thus concluded that National Maintenance only agreed to indemnify Dow, the corporation, against claims made against Dow because of Dow’s, the corporation’s, negligence, but did not agree to indemnify Dow’s agents, servants and employees against claims made against them based on their own negligence.

A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemni-tee against losses resulting to him through his own negligent act, unless such an intention was expressed in unequivocal terms. Lee v. Allied Chemical Corp., supra; Strickland v. Nutt, 264 So.2d 317 (La.App. 1st Cir.), cert. denied, 262 La. 1124, 266 So.2d 432 (1972); Elephant, Inc. v. Hartford Accident & Indemnity Co., 216 So.2d 837 (La. App. 1st Cir. 1968), on remand, 239 So.2d 692 (La.App. 1st Cir. 1970); Arnold v. Stupp Corp., 205 So.2d 797 (La.App. 1st Cir. 1967); Jennings v. Ralston Purina Co., 201 So.2d 168 (La.App. 2d Cir.), cert. denied, 251 La. 215, 203 So.2d 554 (1967).

After construing the instant indemnity agreement in accordance with the above stated rule, we think the court of appeal erred in holding that the contract does not indemnify Dow employees against losses resulting to them through their own negligence.

The contract unambiguously provides that National Maintenance will indemnify Dow and Dow’s agents, servants and employees against any and all losses resulting from claims arising from any source because of injury made against them by National Maintenance employees, and that based on any such alleged injury, National Maintenance will defend Dow, and Dow’s agents, servants and employees, and will pay to them all damages, costs and expenses, including attorney fees, resulting therefrom.

We need not decide whether that contractual language, without more, evidences an unequivocal intention to indemnify Dow employees against losses caused by their own negligence, for the agreement further provides that National Maintenance will indemnify Dow, its agents, servants and employees against claim based on such injuries whether caused by Dow’s negligence or otherwise. We do not ascribe any significance to the omission of the phrase “Dow’s agents, servants and employees” from the “negligence” clause of the contract. Clearly Dow, the corporation, cannot (at least in the context of this agreement) itself be negligent, except under the doctrine of re-spondeat superior for the negligent acts of its agents, servants or employees committed within the scope of their agency or employment. La.Civil Code art. 2320 (1870). Construing the clause to exclude Dow’s agents, servants and employees therefrom renders it virtually nugatory. Such a construction should be avoided in favor of one that gives the clause effect. La.Civil Code art. 1951 (1870).

Moreover, we note that in three of the four instances in which “Dow” is named in the indemnity paragraph of the contract, it is followed by “its agents, servants and employees.” When there is a doubt as to the true sense of the words of a contract, they may be explained by referring to other words or phrases used in making the same contract. La.Civil Code art. 1948 (1870). Since no intention to exclude Dow employees from the clause “whether caused by Dow’s negligence or otherwise” is discernible, the clause should be construed by reference to the phrase “Dow, its agents, servants and employees” used repeatedly in the same paragraph of the contract.

Further, all clauses of a contract should be interpreted the one by the other, giving to each the sense that results from the entire agreement. La.Civil Code art. 1955 (1870).

Finally, when there is anything doubtful in agreements, including indemnity agreements, we must endeavor to ascertain what was the common intention of the parties, rather than adhere to the literal sense of the terms. La.Civil Code art. 1950 (1870). By holding that the phrase “whether caused by Dow’s negligence or otherwise” excluded Dow employees, the court of appeal rendered an interpretation of the contract that was clearly contrary to the intent of the parties thereto. While we are mindful of the principle that indemnity contracts whereby the indemnitee is indemnified against the consequences of his own negligence must be strictly construed, we are certain that the parties herein unequivocally intended that result.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed; the motion for summary judgment filed by National Maintenance Corporation is overruled; and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion. All costs in connection with the motion for summary judgment shall be paid by National Maintenance Corporation. Assessment of other costs shall await the final outcome of the litigation.

      . For the limited purpose of reviewing National Maintenance’s motion for summary judgment, we assume, but do not decide, that Polozola was an employee of National Maintenance at the time he was injured. The indemnity agreement, quoted infra, provides that National Maintenance will indemnify and defend claims made against Dow employees by National Maintenance employees. Whether or not Polo-zola, who was on the Wiese payroll, was a borrowed employee of National Maintenance when he was injured is an issue that has not yet been litigated and ruled on by the trial court.