author: DIXON, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Danny L. CLARK.
    No. 63882.
    Supreme Court of Louisiana.
    June 25, 1979.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Laurence Alterman, Asst. Dist. Atty., for plaintiff-relator.
    Robert F. Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
   DIXON, Justice.

On December 5, 1978 a bill of information was filed in Orleans Parish charging Danny L. Clark with obscenity, a violation of R.S. 14:106. The information alleged that the defendant “did indecently and publicly expose his person in a place open to the view of people or the public at large with the intent of arousing sexual desire.” On January 22, 1979 the defense filed a motion to quash the information on the ground that it failed to charge an offense punishable by a valid statute, C.Cr.P. 532(1). After argument, the district judge accepted the defense position and granted the motion. Upon the State’s application, this court granted supervisory writs to review the district court’s ruling. 368 So.2d 128 (La.1979).

At the hearing on the motion the State and defense stipulated several facts. It was agreed that the defendant resided at Parc Fontaine Apartments in New Orleans and that he was inside his apartment on the second floor at the time of the alleged offense. The victims observed the defendant from below in the parking lot as they were walking to an apartment on the first floor. Although the parking lot was owned by the apartment complex, it was not enclosed and did not have a security system. Any visitor could enter the lot, which was not posted as private property.

R.S. 14:106 provides in part:

“A. The crime of obscenity is the intentional:
(1) Exposure of the genitals, pubic hair, anus, vulva or female breast nipples in any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom with the intent of arousing sexual desire.”

The defense contends that prosecution of the alleged incident is foreclosed by the narrow interpretation given to this statute in State v. Muller, 365 So.2d 464 (La.1978), where the act of exposure occurred in a supermarket. In reaching its decision in Muller, the court noted that R.S. 14:106 A(l) did not cover all places, but instead defined two classes of places where the conduct in question was illegal. The first class includes “location[s] or place[s] open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, [or] river bank . . ” The second class embraces “other place[s] or locations] viewable therefrom . . .” those spots which can be seen from a location included in the first class. The court then reasoned that the locations specifically listed in the statute were open, out of doors, and in the public domain, and contrasted these characteristics with the attributes of a supermarket which is generally enclosed, indoors and privately owned. This marked contrast led to the conclusion that a supermarket was not a location included in the class of places where the exposure of one’s genitals constitutes criminal behavior.

In the present case it is evident that the conduct in question did not occur in a place included in the first class defined by the statute; like a supermarket, an apartment is typically enclosed, indoors, and not open to the view of people at large. Nevertheless, as our interpretation of the statute in Muller made clear, the exposure of one’s genitals is criminal if it is accomplished in a place which is “viewable” from any location open to the view of the public at large. The parking lot of the Parc Fontaine Apartments appears to be such a place. Although the lot is private property, it is not enclosed, does not have a security system, and is not posted as private property. Visitors to the apartment complex may enter and use the lot. The mere fact that the lot is privately owned should not be disposi-tive, at least where the lot is unenclosed. Viewed in this light, the lot shares significant similarities with the locations enumerated in R.S. 14:106 A(l), and an act of exposure seen from the parking lot may therefore be prosecuted under the statute.

The defense also asserts that R.S. 14:106 is unconstitutionally vague and places particular emphasis on the phrase “with the intent of arousing sexual desire.” However, this challenge was not raised in the district court and therefore is not properly before this court. Although we have held that the unconstitutionality of a statute underlying a conviction is reviewable as an error patent, State v. Stewart, 325 So.2d 828 (La.1976), no conviction has been obtained in the instant case. We therefore do not address the merits of this contention.

For the reasons assigned, the ruling of the district court granting the motion to quash is reversed, and the case is remanded for further consideration in accordance with the views expressed herein.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

I agree that the facts here are distinguishable from those in State v. Muller, 365 So.2d 464 (La.1978); however, I would overrule Muller as being an improper interpretation of La.R.S. 14:106. Accordingly, I respectfully concur.


source: Caselaw Access Project

author: PER CURIAM. TATE, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Daniel G. DOLLAR.
    No. 63885.
    Supreme Court of Louisiana.
    June 25, 1979.
    Wilford D. Carter, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Terry J. Johnson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

The defendant was convicted of two counts of armed robbery, La.R.S. 14:64, and sentenced to serve 15 years imprisonment at hard labor. On appeal, defendant relies on five assignments of error. We have reviewed these assignments of error and find no reversible error based on the record preserved for our review.

We note that the defendant has raised a serious argument that he was improperly foreclosed from laying a foundation for the impeachment of a key prosecution witness because of admonitions given by the trial judge during an off the record bench conference. An irregularity or error cannot be availed of on appeal after verdict unless the grounds therefor appear of record and unless an objection was raised at the time of the occurrence. La.C.Cr.P. art. 841. Because the improper remarks allegedly made by the trial judge do not appear of record, and because no contemporaneous objection was raised by the defendant, we are unable to review defendant’s contention on appeal. However, if the defendant’s right to a fair trial was seriously impaired by off the record remarks of the trial judge, then this issue may be raised in an application for writ of habeas corpus. La.C.Cr.P. art. 362. See, State v. Goodbier, 367 So.2d 356 (La.1979).

AFFIRMED.

TATE, J., dissents and assigns reasons.

CALOGERO and DIXON, JJ., dissent.

TATE, Justice,

dissenting.

The witness at this trial identified the accused as the robber. The accused was prevented from questioning this witness as to her prior contrary testimony at an earlier trial, which had instead identified the defendant’s companion as the gunman.

Our majority does not reach the issue, reserving it for post-conviction treatment, on the ground that the record before us does not show a contemporaneous objection.

However, the record before us very plainly shows that the trial court summoned both counsel for a bench conference when the defendant’s counsel sought to question the witness as to her prior testimony. Unfortunately, this bench conference was not transcribed (although it should have been, with the jury retired for the discussion). However, the subsequent cross-examination of the witness by the defense counsel seems to bear out his complaint that he was instructed by the trial judge to desist from this line of questioning. (In fairness to the trial judge, it should be noted that his ruling was made in an effort to protect the accused from possibly prejudiced testimony as to an earlier trial.)

In brief before this court, the state out of commendable fairness withdraws its argument that no contemporaneous objection was made.

Instead of relegating the petitioner to post-conviction remedy as to this potential serious trial error — where through no lapse of the accused the crucial bench colloquy between the judge and counsel was not transcribed — , we should remand the case to determine by hearing whether in fact the trial judge made the erroneous ruling over the defendant’s objection.

I therefore respectfully dissent.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Terrill L. DEAKLE.
    No. 63896.
    Supreme Court of Louisiana.
    June 25, 1979.

      A. J. Boudreaux, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William W. Hall, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Seven weeks after pleading guilty to armed robbery and just prior to imposition of sentence defendant Terrill Deakle moved to withdraw his guilty plea. The trial judge denied his motion, then sentenced defendant to thirty-five years at hard labor without benefit of parole, probation or suspension of sentence. Defendant’s appeal from the conviction and sentence raises only one issue, whether the trial judge’s refusal to allow defendant to withdraw his guilty plea constitutes reversible error.

Article 559 of the Code of Criminal Procedure provides that “[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.” We have interpreted that article as granting broad discretion to the trial judge. State v. Robinson, 311 So.2d 893 (La.1975); State v. Johnson, 260 La. 902, 257 So.2d 654 (1972).

In the instant case defendant was fully apprised before he pled guilty of the minimum and maximum sentences possible, namely five years and ninety-nine years respectively, and that the court had made no promise other than to conduct a pre-sen-tence investigation. Defendant’s attorney did not tell defendant he would get less than thirty-five years, but rather simply that based on counsel’s experience defendant would probably be facing a sentence between ten and twenty-five years. Presumably the motion to withdraw the guilty plea was prompted by defendant’s learning just before sentencing that the trial judge intended to give a thirty-five year sentence.

No reason for the trial judge’s permitting withdrawal other than the foregoing is suggested in the record. Under the circumstances the trial judge did not abuse the broad discretion afforded him by Article 559. Defendant may not withdraw a guilty plea simply because the sentence to be imposed is heavier than anticipated. State v. Robinson, supra. It is not unreasonable for the trial judge to refuse to allow defendant the luxury of gambling on what sentence he will be given, then withdrawing his plea if and when he can discover, before imposition, that the sentence is not to his liking. See, State v. Johnson, supra.

Decree

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

AFFIRMED.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Ivory CHOPIN, Jr.
    No. 63907.
    Supreme Court of Louisiana.
    June 25, 1979.

      Philip E. O’Neill, Gretna, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., P. Michael Cullen, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-respondent.
   MARCUS, Justice.

Ivory A. Chopin, Jr. was charged by bill of information with possession of marijuana in violation of La.R.S. 40:966. After a bench trial, defendant was found guilty as charged and sentenced to pay a fine of one hundred dollars plus court costs and to serve three months in the parish prison. Execution of that part of the sentence consisting of imprisonment was suspended. Defendant’s application to this court under our supervisory jurisdiction was granted. He asserts three assignments of error. Finding merit in two of the assigned errors, we need not consider the remaining one.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in denying his motion to suppress physical evidence. He argues that the police officers detained and/or arrested him illegally; therefore, evidence seized as a result of the illegal detention and/or arrest was inadmissible.

At the suppression hearing, the state called Deputy Sam O’Quain. He testified that at approximately 11:38 p. m. on July 7, 1978, he and his partner were patrolling the Westbank Expressway on the south service road. Upon approaching the intersection of Barrataria, the officers observed defendant walking along the south service road carrying a brown paper bag in his hand. Deputy O’Quain stated that, when defendant noticed the patrol car, he became “kind of nervous” and began to walk faster. As a result, he drove past defendant, turned his vehicle around and came back toward defendant, hit his bright lights and stopped three to four feet in front of defendant. At this point, defendant ran away from the patrol car and apparently dropped the brown paper bag. The officers pursued defendant, caught him, and placed him under arrest. Thereafter, defendant advised the officers that the paper bag he had dropped contained marijuana. The bag was subsequently retrieved and discovered to, in fact, contain marijuana. Deputy O’Quain testified that the area in which they observed defendant walking was not isolated; rather, it was well lit from stores located nearby. He further admitted that there were no warrants for defendant’s arrest at the time; nor did he have any information that defendant was wanted for any crimes. Finally, he conceded that defendant was not committing a crime at the time he was observed walking by the officers.

The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.Code Crim.P. art. 215.1, as well as both the federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Drew, 360 So.2d 500 (La.1978); State v. Robinson, 342 So.2d 183 (La.1977); State v. Perique, 340 So.2d 1369 (La.1976); State v. Dixon, 337 So.2d 1165 (La.1976); State v. Cook, 332 So.2d 760 (La.1976); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. State v. Drew, supra; State v. Robinson, supra; State v. Perique, supra; State v. Dixon, supra; State v. Cook, supra; State v. Weathers, 320 So.2d 892 (La.1975). The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Pe-rique, supra; State v. Cook, supra; State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970).

Where officers do not have the right to make the investigatory stop, property abandoned or otherwise disposed of as a result thereof cannot be legally seized by the police officers. State v. Ryan, 358 So.2d 1274 (La.1978); State v. Perique, supra; State v. Lawson, 256 La. 471, 236 So.2d 804 (1970). If, however, property is abandoned without any prior unlawful intrusion into a citizen’s right of freedom from governmental interference, then such property may be lawfully seized. State v. Ryan, supra; State v. Perique, supra. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights. As we have previously held, “it is only when the citizen is actually stopped without reasonable cause or when that stop is imminent that the right to ‘be left alone’ is violated,” thereby rendering unlawful any resultant seizure of abandoned property. State v. Ryan, supra.

In the instant case, we conclude that Deputy O’Quain and his partner effected an intrusion upon defendant’s right to be free from governmental interference when they swung the patrol car around into his path, switched on the bright lights, and braked not more than three or four feet in front of him. Such an approach clearly indicated that some form of official detention was imminent. Our evaluation of the record further convinces us that the evidence is devoid of any basis upon which these officers could have lawfully detained defendant at the time they observed him walking. The officers had no reason to have suspected that the accused had committed, was committing, or about to commit a crime. Deputy O’Quain freely admitted that he had received no information connecting defendant to any criminal activity and that defendant was not committing any crime at the time he observed defendant. Police officers are not entitled to stop at will any.person in a well-lit, well-traveled area just because that person is walking along with a brown paper bag and becomes “kind of nervous” upon catching sight of a patrol car. Since the officers did not have the right to make an investigatory stop, the evidence abandoned by defendant as a result thereof could not have been legally seized by the officers. Accordingly, the trial judge erred in denying defendant’s motion to suppress.

DECREE

For the reasons assigned, defendant’s conviction and sentence are reversed and the case is remanded to the district court for further proceedings in accordance with law and views herein expressed.

SUMMERS, C. J., dissents.

DENNIS, J., concurs.

      . 368 So.2d 128 (La.1979).

      . In determining whether the ruling-on defendant’s motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Schmidt, 359 So.2d 133 (La.1978); State v. Stewart, 357 So.2d 1111 (La.1978); State v. Shivers, 346 So.2d 657 (La.1977); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967). We have reviewed the pertinent evidence given at the trial of the instant case. This evidence presents substantially the same facts and circumstances surrounding the seizure at issue as was indicated by the testimony of the witness at the hearing on the motion to suppress. Since the evidence adduced at trial does not affect the result we reach in the instant case, our relation of the pertinent facts is based only upon the testimony given at the suppression hearing.


text:
    Loveless CHAISSON and Elvina Chaisson v. Ena Martin DOMINGUE et al.
    No. 63915.
    Supreme Court of Louisiana.
    June 25, 1979.

      J. Louis Gibbens, New Iberia, for defendants-applicants.
    Richard D. Chappuis, Jr., Voorhies & Labbe, Lafayette, for Horace Mann Ins. Co., third party defendant-respondent.
   MARCUS, Justice.

Loveless Chaisson and his wife, Elvina Chaisson, instituted this action against Ena Martin Domingue and her husband, Lloyd Domingue, and his public liability insurer, Farm Bureau Mutual Insurance Company, for damages for personal injuries sustained by Mrs. Chaisson when Mrs. Domingue fell on her at a school band concert.

Subsequently, defendants, Mr. and Mrs. Domingue, filed a third party demand against Horace Mann Insurance Company asserting coverage under an educators professional liability policy issued by said company to the Louisiana Teachers’ Association. Horace Mann answered the third party demand, admitting the existence of the professional liability policy but denying coverage. Thereafter, Horace Mann moved for and the trial judge granted summary judgment in- favor of Horace Mann on the ground that Mrs. Domingue was not covered by the professional liability policy inasmuch as the claim against her did not arise out of any activities performed by Mrs. Domingue in her professional capacity as a teacher.

From this judgment dismissing Horace Mann as a third party defendant in the lawsuit, Mr. and Mrs. Domingue (third party plaintiffs) appealed. The court of appeal affirmed the summary judgment granted below finding no issue of material fact as to the coverage afforded Mrs. Domingue under the professional liability policy issued by Horace Mann. Upon application of Mr. and Mrs. Domingue, we granted certiorari to review the correctness of this decision.

The sole issue presented for oür review is whether, based on the pleadings, depositions, and other evidence filed by the parties pursuant to third party defendant Horace Mann’s motion for summary judgment, a genuine issue of material fact was presented, and whether mover is entitled to a judgment as a matter of law.

In support of its motion for summary judgment, Horace Mann offered an educators professional liability policy issued by it to the Louisiana Teachers’ Association covering the period from September 1, 1974 to September 1, 1975. The policy contained a coverage provision under which Horace Mann agreed as follows:

To pay on behalf of the assured all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for the damages resulting from any claim made against the insured arising out of the assured’s activities in his professional capacity as a teacher or member of the instructional, supervisory or administrative staff of any school, college or other educational establishment and caused by any acts or omissions of the insured or any other person for whose acts the insured is legally liable. (emphasis added)

The policy further defines “activities in a professional capacity,” as used in the coverage provision, to mean “activities of the assured in the course of his duty as an Educator, Administrator, Member of a Teaching Staff, Student Teacher or other employee of a school system, subject to the exclusions of this policy.” (emphasis added)

In support of its motion, Horace Mann also filed the depositions of Mrs. Domingue and Mr. Eloi Comeaux, principal of the Scott Elementary School. From these depositions, the following undisputed facts are disclosed. Mrs. Domingue was employed as a teacher at Scott Elementary School for a total of nineteen years. She retired at the close of the 1975-76 school session. At about 7:00 p. m. on May 8, 1975, while still employed as a teacher of the fifth grade, Mrs. Domingue went to a band concert at the school gymnasium given by the students of Scott Elementary School, some of whom were members of her class and others whom she had formerly taught. While attempting to seat herself in the bleachers, the accident resulting in the instant litigation occurred.

It is clear from the record that Mrs. Do-mingue was not required as a condition of her job to attend the concert; nor was she required to perform any specific function in the event she did attend. The school did not keep any records as to which teachers attended extracurricular functions and thus attendance at such events did not directly affect teacher ratings. However, the school authorities appreciated the teachers’ attendance at extracurricular activities, such as band concerts, and in school bulletins encouraged their presence if at all possible. Moreover, such attendance was appreciated by the school children and their parents. Mrs. Domingue customarily attended the annual band concerts while she was employed as a teacher at Scott Elementary, but ceased to attend them once she retired. She went to the band concert on May 8, 1975, specifically to please her students (both present and former students) who were performing in the concert and who had “begged” her to attend. Additionally, she went to the concert for “the satisfaction of being there as a faculty member.” In sum, had Mrs. Domingue not been employed as a teacher at Scott Elementary, she would not have gone to the band concert.

It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

In the instant case, the undisputed facts presented fail to lead to the inevitable conclusion that Mrs. Domingue was not acting in the course of her duty as a teacher when she attended the band concert on the night of May 8, 1975. The phrase “activities of the assured in the course of his duty as a Member of a Teaching Staff,” as used in the educators professional liability policy, does not restrict coverage under the policy to liability for claims arising only from those activities required of a teacher as a condition of his or her job. Arguably, Mrs. Domingue’s presence at the concert was an activity incident to her employment as a teacher or as' a condition of her job. Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Clearly, such is not the case here. Hence, the judgment of the court of appeal upholding the summary judgment in favor of Horace Mann was improper.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and set aside, the motion for a summary judgment is overruled, and the case is remanded to the district court for further proceedings according to law and consistent with the views herein expressed. All costs incurred in connection with the motion for summary judgment shall be paid by Horace Mann Insurance Company. Assessment of other costs is to await the final determination of the litigation.

      .An amended and supplemental petition added Continental Insurance Company as a party defendant. The trial court sustained Continental’s exception of prescription and dismissed plaintiffs’ suit as to it.

      . 365 So.2d 1115 (La.App. 3d Cir. 1978).

      . 368 So.2d 129 (La.1979).


author: BLANCHE, Justice. MARCUS, J.,

text:
    SOUTHERN VENTURES CORPORATION v. TEXACO, INC.
    No. 63945.
    Supreme Court of Louisiana.
    June 25, 1979.

      Dan E. Melichar, Gravel, Roy & Burnes, Alexandria, for plaintiff-applicant.
    Patrick J. Butler, New Or1 cans, Frederick B. Alexius,' Provosty, Sadler & deLaunay, Alexandria, for defendant-respondent.
   BLANCHE, Justice.

Plaintiff, Southern Ventures Corporation, by this writ seeks reversal of a decision of the Court of Appeal and reinstatement of the decision of the trial court.

The action arises out of a dispute concerning the exercise of an option to renew a lease of immovable property. By written act of lease dated March 27, 1958, Southern Ventures leased to Texaco Inc. (then known as “The Texas Company”), a gasoline service station located at 740 MacArthur Drive in Alexandria, Louisiana. The lease instrument provided for an initial term of fifteen years beginning on February 16, 1959, together with an option for four five-year renewals, making the maximum possible term of the lease thirty-five years.

The lease provided that notice of intention to exercise the first option had to be given by the lessee, in writing, no later than sixty days prior to the expiration of the initial fifteen-year term. Thus, the written exercise of the option had to be accomplished no later than December 17, 1973, since the primary fifteen-year term expired on February 16, 1974.

By letter dated January 7, 1974, addressed to the president of Southern Ventures, Texaco stated its intention to exercise the first five-year option under the lease. This notice was not sent within the sixty-day period prescribed by the agreement. The letter requested that Southern' Ventures signify its assent to the exercise of the option by signing the letter and returning it to Texaco’s Shreveport office. Southern Ventures never returned the letter. Subsequent to February 16, 1974, Texaco continued to occupy the property and continued to pay the rent provided in the lease, consisting of a monthly rental of $425 plus 1.5 percent overriding royalty on all gasoline sales in excess of 300,000 per year.

By way of background, both before and after January, 1974, a dispute had existed between the parties concerning certain repairs to be made to the roof of the station that Texaco had requested Southern Ventures to make. Southern Ventures had refused to make any repairs to the roof, and after the dispute had continued for some time, Southern Ventures, by letter from its attorney dated April 23, 1975, advised Texaco that Southern Ventures considered the rental of the premises to have been on a month-to-month basis since February, 1974, and that the lease could be terminated at the will of either party by giving proper notice during any given month.

Thereafter, the dispute concerning the roof continued on and off for the next two years, together with discussions, negotiations and various proposals between the parties seeking to resolve their differences. Finally, Southern Ventures gave Texaco written notice by registered mail, dated August 1, 1977, advising Texaco to vacate the premises no later than September 1, 1977. The last rent check cashed by plaintiff was for the month of August, 1977. Texaco remained on the premises and Southern Ventures filed a rule for eviction.

For written reasons, the district court ruled that the lease was only on a month-to-month basis and ordered Texaco to vacate the premises.

A suspensive appeal to the Court of Appeal, Third Circuit, was perfected and that court reversed the judgment of the district court. We granted a writ of review.

The trial court found that Texaco’s letter of January 7, 1974, was untimely and insufficient notice to exercise the option which it had under the lease. It then proceeded to find there was no valid renewal of the lease for the first of the five-year renewal terms, that the only rights existing in favor of the lessee were on a month-to-month basis, and that when lessor gave notice terminating the arrangement, it was sufficient to terminate all rights and require lessee to leave the property.

Texaco appealed and the Court of Appeal reversed, finding that the law required that the notice be recognized as valid, even though late, once lessor had accepted rental payments from lessee, citing Civil Code Article 1817, Lingle v. Wainwright, 215 La. 117, 39 So.2d 843 (1949); and Lakeside Dairies, Inc., v. Gregersen, 217 La. 510, 46 So.2d 752 (1950).

We thoroughly agree with the trial judge’s analysis of the issue and reverse the decision of the Court of Appeal. The lease provision required notice of the lessee’s election to exercise the option sixty days prior to the expiration of the initial term of the lease. There is no other provision in the lease contract which would obligate the lessor to accept the late notice. Therefore, the lease agreement came to an end at the expiration of the initial lease period and the only right by which the lessee could retain possession of the property is on a month-to-month basis.

Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970), expresses the law relative to occupancy of leased premises after the lease expires, referring to the appropriate code articles:

“Under our Civil Code provisions based on these articles of the Code Napoleon, legal reconduction takes place when a fixed-term lease expires and the lessee without opposition continues to occupy the premises for more than a week. The reconducted lease is actually a continuation of the lease under the same terms and conditions except that the fixed term or period of duration in the old lease is voided and the reconducted lease is considered to be by the month. La.Civ.Code Arts. 2689, 2685, 2686. . . .” (235 So.2d at 576)

See also Louisiana Civil Code Article 2691.

Texaco relies on Lingle v. Wainwright, supra, and Lakeside Dairies, Inc. v. Gregersen, supra, to establish that notice is waived if the lessor continues to accept rental payments when the notice is late or in some way defective. It is argued that even though notice was late by the terms of the agreement, it was within the primary term of the lease and, therefore, a valid notice, and when Southern Ventures continued to accept rental payments thereafter it waived Texaco’s delay in giving notice.

We disagree. The subsequent acceptance of the rental payments should not be construed as implying an agreement to extend the time for the exercise of the option in some other way which would be at variance with their agreement. Southern Ventures, in fact, did not return Texaco’s letter wherein Texaco sought to exercise the option. Furthermore, paragraph (13) of the lease agreement reads as follows:

“(13) — Holdover. If, at the expiration or termination of this lease or any extension thereof, lessee shall hold over for any reason, the tenancy of lessee thereafter shall be from month to month only and be subject to all other terms and conditions of this lease, in the absence of a written agreement to the contrary.”

Thus, it seems that the parties had agreed concerning what terms would be applicable with respect to the lessee’s occupancy of the property after expiration of the lease. In view of their agreement in this regard, there seems to be little need to inquire as to what, if any, implied contractual obligations resulted from Texaco’s acceptance of the rent.

“Contracts are not presumed, and therefore the option or right to renew a lease is never presumed. The civil law has expressly recognized that occupancy of premises by a lessee after the expiration of a fixed-term lease constitutes re-conduction. . . .” (Governor Claiborne Apartments, Inc. v. Attaldo, supra, at 576)

Regardless of our holding in the Lingle and Lakeside cases, supra, in this case neither the statutory nor contractual law of the parties as expressed by their agreement favors Texaco’s position, and we find that they have failed to show that there was a renewal of the lease for five years by either implied or express agreement.

For the above and foregoing reasons, the judgment of the Court of Appeal is reversed and the judgment of the district court is hereby reinstated, at defendant’s cost.

REVERSED AND RENDERED.

MARCUS, J.,

dissents, being of the opinion that this court’s decision in Lakeside Dairies, Inc. v. Gregersen, 217 La. 510, 46 So.2d 752 (1950) is correct and controlling here.


author: DIXON, Justice.

text:
    Joseph COUSIN v. Michael D. PAGE et al. Mr. and Mrs. George LAURENT v. Michael D. PAGE et al.
    No. 63983.
    Supreme Court of Louisiana.
    June 25, 1979.

      Walter F. Gemeinhardt, A Professional Law Corp., New Orleans, for plaintiffs-applicants.
    France W. Watts, III, Watts & Cassidy, Franklinton, for defendant-respondent.
   DIXON, Justice.

The Travelers Insurance Company issued an automobile liability insurance policy to Mrs. Sheddrick J. Keys covering a 1974 Chevrolet Camero. On May 25, 1975 this vehicle was involved in an accident resulting in the death of Sam Laurent and injuries to Joseph Cousin. Michael D. Page was driving and Sheddrick Keys, the registered owner of the vehicle, was in the right front passenger seat. The only question at trial was whether The Travelers Insurance Company afforded coverage; the liability issue was stipulated and damages were limited to the policy limits of a Fireman’s Fund American Insurance Company policy insuring Page, and, if applicable, the Travelers policy insuring Mrs. Sheddrick Keys. Finding material misrepresentation which voided the automobile liability policy, the district court dismissed the plaintiffs’ claims against Travelers. Finding “enough facts of record from which the trial court could have concluded that there was an intent to deceive,” the Court of Appeal affirmed the district court judgment. Cousin v. Page, 367 So.2d 875, 877 (La.App.1978).

Janice Edgerson was legally separated from her husband, Donald Batiste, and was cohabitating with Sheddrick Keys when they purchased a vehicle together in August, 1974. On February 11, 1975 Janice had a minor accident, and, in the following week, she and Keys decided that because she was driving the car that was purchased in Keys’ name, she should have some liability insurance. So, on February 18, 1975, while Keys was at work, Janice and her sister went to get information on insurance from Tom Sheppard, who had the week before written a policy for Janice’s sister, and who knew Janice and her family.

Janice told the insurance agent that she was legally separated from her husband, but the testimony conflicts on whether she also told the agent that she was living with Keys and sharing the expenses and operation of the vehicle they sought to insure. The agent took notes, examined Janice’s driver’s license, filled out an application for automobile liability insurance and signed “Mrs. Sheddrick J. Keys” to the application. Later, Travelers issued, in the name of “Mrs. Sheddrick J. Keys,” the liability policy against which the plaintiffs, the decedent’s parents, the Laurents, and Joseph Cousin, now claim. Travelers filed a pleading to declare the insurance policy null and void, contending that Janice had materially misrepresented that she was “Mrs. Shed-drick J. Keys,” that she owned the vehicle, and that no male drivers would be using the vehicle. Travelers claimed that because of these material misrepresentations they had issued a policy to insure a fictional insured who had no insurable interest in the vehicle at a greatly reduced premium rate.

In finding material misrepresentation and voiding the policy, the trial court reasoned that at the time Janice applied for the liability insurance she gave the impression to the insurance agent that she was married to Mr. Keys. Consequently, the agent wrote the policy on the basis that Janice would be driving the car and that no one else would. The Court of Appeal affirmed this judgment, particularly noting:

“. . . the trial judge had before him testimony that the insurance company was insuring a separated female who would be the sole driver of the automobile and, accordingly, applied the lower premium rate; that Travelers would not have issued the policy for the premiums charged if it had been aware that a young male driver, nineteen (19) years of age, would be driving the automobile; and that a copy of the application was mailed to Janice Batiste and no action was taken by her to correct or change anything contained therein. . . . ” 367 So.2d at 877.

The issues are: (1) whether Janice, who applied for the policy, made misrepresentations to the insurance agent; (2) if so, whether the misrepresentations were made with the intent to deceive; (3) whether Janice had an insurable interest in the vehicle; and (4) whether Janice gave Keys permission to use the insured vehicle so as to afford coverage to the “second permittee” driver, Page, under the omnibus insured clause of the policy.

R.S. 22:619, which sets forth the requirements for avoidance of an insurance contract, provides in subsection A (the portion relevant to automobile liability insurance):

“. . . no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.” (Emphasis added).

Under R.S. 22:619A only a finding of intent to deceive will defeat coverage. DiGerolamo v. Liberty Mutual Ins. Co., 364 So.2d 939 (La.1978). The courts of appeal in interpreting a similar provision in R.S. 22:619B have reasoned that strict proof of fraud is not required to show the applicant’s intent to deceive, because of the inherent difficulties in proving intent. Intent to deceive must be determined from surrounding circumstances indicating the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality of his misrepresentations, or from circumstances which create a reasonable assumption that the insured recognized the materiality. Watson v. Life Insurance Co. of Louisiana, 335 So.2d 518, 521 (La.App.1976), citing Reed v. American Casualty Co. of Reading, Pa., 317 So.2d 648 (La.App.1975), writ refused, 320 So.2d 914 (La.1975); Parfait v. Minnesota Mutual Life Ins. Co., 311 So.2d 558 (La.App.1975), writ refused, 313 So.2d 847 (La.1975); Murphy v. Continental Casualty Co., 269 So.2d 507 (La.App.1972).

The insurer who issued the liability policy and who now asserts this special defense to avoid coverage has the burden of proving that there was a misrepresentation, and that it was made with the intent to deceive. Travelers has not carried this burden of proof.

Janice, her sister and the insurance agent were all present when Janice applied for the liability insurance. Janice and the insurance agent gave contradictory accounts at trial concerning the statements given by Janice when she sought information on insurance coverage. Janice’s sister was hospitalized at the time of the trial and did not testify. Counsel for both sides stipulated that “if she were called, she would testify to the same words that Mrs. Batiste testified to.”

Janice testified that she informed the agent that she was married to Batiste, but legally separated; that she was living with Keys; that the car was registered in Keys’ name; that Keys was also driving the car; and that she would be using the car to go to and from work. Janice further testified that she neither filled out the application for insurance nor did she sign the application.

On cross-examination Janice’s testimony was summarized as follows:

Cross-examination by Mr. Watts:
“Q It’s your testimony that your sister, Phyllis Penn, went with you to Mr. Tom Sheppard to purchase the insurance?
A Not to purchase. We went there in the beginning to get information on obtaining the insurance.
Q Is it your testimony, is it your sworn testimony under oath, that you told Mr. Tom Sheppard that you were not married to Sheddrick Keys?
A Right.
Q It is also your sworn testimony that you told Mr. Sheppard that Mr. Keys owned the car?
A Yes, it is.
Q Is it also your sworn testimony that you told Mr. Sheppard that Mr. Sheddrick Keys, who was then nineteen years old, would drive the car?
A Yes.”

The agent testified that he filled out the information on the application and that he was “led to believe” that Janice was married to Keys but legally separated. Both the agent and Janice testified that he knew Janice and her family, the Edgersons, and especially her grandfather, his son, and several other members. The application lists Janice’s grandfather, father, sister and cousins as other members of her family also covered by Travelers. The agent had just the week before obtained insurance for Janice’s sister. He had Janice’s driver’s license, which gave her name as “Janice E. Batiste.” The application directs in Question 1 that the name of the applicant be spelled out “exactly as on driver’s license.” When completing this line, the agent wrote “Mrs. Sheddrick J. Keys.” Question 6A directs that the name be spelled out “as it appears on driver’s license.” The agent filled in “Janice Batiste E. Keys.” Neither of these names in fact appear on Janice’s driver’s license.

Knowing the Edgerson family, having sold Travelers insurance to other members of the family, and noticing the name on Janice’s driver’s license, the agent should have questioned Janice more thoroughly about her marital situation and about any males who might use the vehicle. As the dissenting judge in the Court of Appeal commented “the information required by an insurance company to process an application is not always apparent to a layman.” 367 So.2d at 880. With his knowledge of the insurance business and his familiarity with the Edgerson family, the agent who filled out and signed the application was in a better position to obtain from Janice the relevant information for processing the application and to make reasonably certain that he understood the situation. Instead, he thought Janice’s mother “could have been an Edgerson and married a Batiste and her name could be Janet Edgerson Batiste and when she married, she was a Keys,” assumed that Janice had not changed her name on her driver’s license, and thought it irrelevant to question Janice more about Batiste and Keys.

The agent’s testimony contains several incorrect assumptions and inferences which might be accepted as conflicting with Janice’s testimony regarding her marital status. It does not, however, prove that Janice intended to withhold or misrepresent relevant information, nor does it contradict Janice’s testimony that she told the agent that Keys also would be driving the vehicle.

The ultimate issue is whether Janice misrepresented with the intent to deceive that she alone would be driving the vehicle. As the dissenting judge reasoned:

“Indeed, the application itself provides an opportunity to inquire with regard to others who will drive the insured vehicle under item No. 6, ‘We Need to Know These Things About People Living In Your Household (including students and military personnel) Who Operate Any Vehicle.’ The only listing made by the agent who filled out the application was ‘Janice Batiste E. Keys.’ Had the agent written ‘no others’ or ‘none,’ it would have indicated that he had asked her this question. However, from the record, I cannot find that this question was ever asked of Janice. The record indicates that the agent listed no other drivers, a fact he assumed because the woman was legally separated. Under the rule stated in Fruge v. Woodmen of World Life Insurance Society, 170 So.2d 539 (La.App. 3rd Cir. 1965), this error is binding on the insurer and does not bind the insured.” 367 So.2d at 880.

See also, Cloud v. Security General Life Ins. Co., 352 So.2d 406, 407 (La.App.1977); Morein v. American Physicians Ins. Co., 192 So.2d 887 (La.App.1966).

The Court of Appeal found evidence of intent to deceive because, if the true situation had been known, Travelers would not have charged the lower premium rate, and because a copy of the application was mailed to Janice and she did not act to correct or change anything in it. However, the record does not demonstrate that Janice or Keys knew the differences in rates. (In response to questions posed at his deposition, Keys testified that he had never applied for or bought insurance; that he did not know anything about buying it; and that Janice bought the insurance while he was working).

The record does not clearly establish that Janice received a copy of the application that the agent filled out and signed; the application was not attached to the policy. Nor does the record establish that Janice read the application and intentionally failed to correct any misinformation. (Keys in deposition indicated that he saw that “Mrs. Sheddrick Keys” was on the policy but he did not think anything about it except that his name was there and he thought he had insurance).

From the record we cannot find that Janice or Keys had actual knowledge of the falsity of the representations in the application, or that they recognized the materiality of any misrepresentations. We cannot find that any misrepresentations were made with the intent to deceive; in the absence of such evidence, an intent to deceive cannot be inferred.

Travelers further contends that if this court finds no material misrepresentation, we should still find the insurance contract null and void for the reason that Janice had no “insurable interest” within the meaning of R.S. 22:614B. However, in DiGerolamo v. Liberty Mutual Ins. Co., 364 So.2d at 941-942, we reasoned that, by its express terms, R.S. 22:614 requires insurable interest in insurance contracts on “property or of any interest therein or arising therefrom,” and we concluded that the only two statutes concerning insurable interest (R.S. 22:613-614) were not applicable to liability insurance.

Finding no controlling Louisiana jurisprudence and no applicable statutes, we indicated, in DiGerolamo, that we were disposed to find no Louisiana requirement of insurable interest in liability insurance. However, in the instant case, as in DiGero-lamo, we find again that it is unnecessary to reach this issue. The record indicates that Janice supplied the $600 down payment for the vehicle; that the down payment was not a loan from Janice to Keys, and Keys did not repay it to Janice; that Janice and Keys each paid half the installment notes to GMAC, and that even after Janice and Keys split up, each continued to pay half the notes and to share the use of the insured vehicle until the accident. From this evidence it is apparent that Janice was a co-owner of the insured vehicle even though it was registered in Keys’ name.

Finally, Travelers contends that Mrs. Sheddrick Keys was the named insured on the policy and Mr. Sheddrick Keys, the registered owner, was not the named insured; the record does not indicate that Janice gave Page permission to use the vehicle; therefore, the policy did not cover the instant case. The pertinent clause in the policy provides:

“Persons Insured
Each of the following is an insured under Part I:
(a) with respect to the owned automobile,
(1) the named insured and any resident of the same household,
(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above;”

This clause should be applied in harmony with the strong legislative policy that all insurance contracts in Louisiana are executed for the benefit of the injured parties and are to provide coverage for all insureds. R.S. 22:655 provides:

“It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy." (Emphasis added).

See, Hughes v. Southeastern Fidelity Ins. Co., 340 So.2d 293 (La.1976).

In Hughes, supra, the named insured did not even know when his friend took the car, or when the friend would bring it back. However, considering the circumstances and the relationship between the named insured and his friend, we found that because the named insured had given his friend permission to use the car as his own, the possibility that the friend might allow another to drive the car was clearly foreseeable. We held that the omnibus clause of the policy covered the second permittee.

In the instant case the record indicates that Janice and Keys were sharing the use and expenses of the vehicle. At the time of the accident Janice was using the vehicle during the week to go to and from work, and Keys was driving it on the weekends. Janice testified that although she did not know Keys was using the car on the night of the accident, Keys did have possession of the car and that, in effect, she had consented to Keys using the car the night of the accident.

Considering the circumstances and the relationship between Janice and Keys (cohabitation and co-ownership of the car), there can be no question of Keys’ permission to use the car on the night of the accident. As the dissenting judge reasoned:

“. . . This permission contained no restrictions since, in truth and in fact, the permission was for Keys to use the car as his own. The permission was of the broadest possible scope (i. e. co-ownership) and included the possibility that Keys might allow someone else to drive the car. See Hurdle v. State Farm Mutual Automobile Insurance Co., 135 So.2d 63 (La.App. 2d Cir. 1961).” 367 So.2d at 881.

Keys gave Page permission to drive, and Keys was sitting in the right front passenger seat on the night of the accident. Keys’ presence and permission extended the insurance coverage to the driver, Page. See Hughes, supra, 340 So.2d at 295.

Accordingly, the judgment of the Court of Appeal and the district court are reversed, and there is now judgment for the plaintiffs and against the defendant, The Travelers Insurance Company, in the amount of $10,000 for Joseph Cousin and $10,000 for Mr. and Mrs. George Laurent, at defendant’s cost.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. H. M. “Mike” CANNON.
    Nos. 64363, 64364.
    Supreme Court of Louisiana.
    June 25, 1979.
    Frank J. Gremillion, Cyrus J. Greco, Arthur A. Vingiello, Steve M. Marks, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Bob H. Hester, J. David Bour-land, Asst. Dist. Attys., for plaintiff-respondent.
   BLANCHE, Justice.

Defendant, H. M. “Mike” Cannon, is the Clerk of Court of East Baton Rouge Parish and was indicted on February 7, 1979, in a two-count indictment by a special grand jury for public salary extortion and public salary deduction. Count one charged a violation of LSA-R.S. 14:136(1) in that the defendant allegedly solicited and attempted to solicit and receive the payment of money from his employees for various purposes, including his re-election, said payments allegedly being solicited upon defendant’s suggestions and threats that .the failure to make such payments would result in the impairment of the value of their positions as employees of the defendant. Count two charged a violation of LSA-R.S. 14:135 in that the defendant, being a public officer, allegedly attempted to retain and divert for his own use and for the use of his political organization part of the salaries of his employees.

In connection with the investigation of the above charges, the defendant appeared as a witness before the grand jury and on February 21, 1979, defendant was indicted for perjury allegedly for statements made by him in connection with his appearance before said jury.

Various pre-trial motions were filed by defendant, among which were motions to quash, application for bill of particulars, and motion to suppress. All were overruled by the trial judge. To these rulings, the defendant made timely objection and applied to this Court for supervisory writs which were granted.

Both indictments were returned by the same grand jury, and defendant complains to us through an assignment of error that the indictments were invalid for the reason that the jury was improperly constituted.

The grand jury was empaneled on November 17, 1977, by Judge John Covington. On December 6,1977, Byron Plauche, one of the jurors, addressed a letter to Judge Cov-ington stating that his employment made it practically impossible for him to adequately discharge the responsibilities required of him as a member of the special grand jury, and he requested that his resignation be accepted. At the time of the empaneling of the grand jury, Plauche informed Judge Covington that he might have attendance problems due to his business, but he felt that the matter could be worked out and Plauche became a member of the jury.

There was no question that he met all of the qualifications of a grand juror when selected. LSA-C.Cr.P. art. 401. It is further a fact that Plauche did not fall within any of the categories to claim exemption from jury service as expressed by Rule 25, § 2, of the Louisiana Supreme Court. See also LSA-C.Cr.P. art. 403. Nevertheless, Judge Covington, in response to the juror’s letter, discharged him and another juror was subsequently selected to fill his place.

Plauche was fully qualified to be a juror and the reason given and accepted by the trial judge for his excuse was not one which related to his qualifications for service or to any exemption which he could claim by law. Therefore, we are confronted with a situation in which the trial judge excused a grand juror at the juror’s request for a cause other than failure to meet those qualifications which he is required to meet or to continue to meet as a condition of service under LSA-C.Cr.P. art. 401 or for exemption which he could have claimed prior to his selection. Rule 25, § 2. We note that under our Rule 25, § 1, jury service is an obligation of any qualified citizen and the exemptions therefrom are personal to the individuals concerned. LSA-C.Cr.P. art. 403 and Rule 25, § 3.

While the law is explicit in its enumeration of the qualifications a juror must possess and continue to possess, it is otherwise silent as to any cause for which a juror may be excused once he has been empaneled. Relator, therefore, submits that once Plauche, being qualified, was empaneled as a member of the grand jury, he became irrevocably a member and could not be discharged unless he became disqualified for legal cause thereafter. Undoubtedly, “legal cause” refers to those grounds for disqualification set forth in Article 401 of the Code of Criminal Procedure.

Thus, the argument is that having no right to excuse Plauche, the trial judge had no authority to replace him with another grand juror, and for that reason defendant was indicted by a jury which was improperly constituted.

This Court has held that a grand jury having a stranger as one of its members and lacking one of its regular members was illegally constituted and an indictment found by it was invalid. State v. McGarrity, 140 La. 436, 73 So. 259, 261 (1916).

In State v. Richey, 195 La. 319, 196 So. 545, 546 (1940), we held that a district judge has no right to remove a grand juror without cause, but he has a right to discharge him for “legal cause” or “good cause.”

There is little doubt but that “legal cause” for excuse exists when a juror no longer possesses the qualifications for service as required by Code of Criminal Procedure Article 401. In State v. Smith, 145 La. 1091, 83 So. 264, 266 (1919), we said “good cause” meant “legal cause”; that when a competent juror is once drawn in the manner provided by law, he becomes thereby irrevocably a member of the jury, and the judge is powerless to remove him except for legal causes, subsequently accruing. We affirmed this holding in State v. Ross, 212 La. 405, 31 So.2d 842 (1947).

This brings us to inquire whether the excuse of juror Plauche was for legal cause.

In the absence of any statutory authority on the subject, we would be hard pressed to find that legal cause for the excuse of juror Plauche existed, and it follows that the grand jury which indicted relator was unlawfully constituted when the trial judge excused one juror without authority of law and substituted another in his place. Due process with regard to such an indictment would mandate that it be returned by a grand jury qualified and constituted in accordance with law at the time it was returned. See State v. Revere, 232 La. 184, 94 So.2d 25 (1957).

Having found the indictments invalid at their inception, we are not required to rule on other assignments made by defendant.

For the above reasons, the decision of the district court is reversed and we sustain the motion to quash those indictments of February 9, 1979, and February 21, 1979, which were returned against defendant-relator herein by the grand jury of East Baton Rouge Parish.

REVERSED AND MOTION TO QUASH GRANTED.

      . LSA-C.Cr.P. art. 401 provides:
      “In order to qualify to serve as a juror, a person must:
      “(1) Be a citizen of the United States and of this state who has resided within the parish in which he is to serve as a juror for at least one year immediately preceding his jury service;
      “(2) Be at least eighteen years of age. (Amended by Acts 1972, No. 695, § 1.)

      “(3) Be able to read, write, and speak the English language;
      “(4) Not be under interdiction, or incapable of serving as a juror because of a mental or physical infirmity; and
      “(5) Not be under indictment for a felony, nor have been convicted of a felony for which he has not been pardoned. (Corrected by Act 310 of 1966).”

        . Rule 25, § 2 provides:
      “This court finds that the exemption of the following groups or occupational classes is in the public interest and, accordingly, members of such classes are exempt from jury service:
      “(a) Public officers in the executive, legislative, or judicial branches of the Government of the United States, or the State, or any subdivision thereof, who are actively engaged in the performance of official duties;
      “(b) Members in active service in the Armed Forces of the United States and members of the National Guard of this State while on active service;
      “(c) Members of paid fire or police departments of the State or any subdivision thereof and federal law enforcement officers;
      “(d) Members of the following groups when regularly and actively engaged in the practice of their professions: attorneys at law, ministers of religion, chiropractors, physicians, dentists, pharmacists and optometrists;
      “(e) All persons over seventy years of age.”

      .LSA-C.Cr.P. art. 403 provides:
      “Exemptions from jury service shall be as provided by rules of the Louisiana Supreme Court pursuant to Section 33(B) of Article V of the Louisiana Constitution of 1974. (Amended by Acts 1968, No. 108, § 1; Acts 1970, No. 450, § 1; Acts 1972, No. 35, § 1; Acts 1972, No. 282, § 1; Acts 1972, No. 523, § 1; Acts 1974, Ex. Sess. No. 22, § 1.)”


author: PER CURIAM.

text:
    STATE of Louisiana v. Andre SORINA.
    No. 64163.
    Supreme Court of Louisiana.
    July 5, 1979.
    Robert Barnard, Robert Zibilich, Clyde Merritt, New Orleans, Orleans Indigent Defender Program for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John T. Mulvehill, Louise S. Korns, Maurine Carroll, Asst. Dist. At-tys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

SUMMERS, C. J., absent.

DENNIS, J., dissents.


author: PONDER, Judge.

text:
    Al HUDSON et al. v. CITY OF BATON ROUGE et al.
    No. 12554.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1979.
    Victor A. Sachse, Jr., Claude F. Reynaud, Jr., Baton Rouge, of counsel, for plaintiffs-appellants Al Hudson et al.
    John V. Parker, Ralph E. Hood, Baton Rouge, of counsel, for defendants-appellees, Prime Properties Development Inc. JT&B Partnership Ltd. and Doyle Whittington.
    Frank J. Gremillion, Asst. Parish Atty., Baton Rouge, of counsel, for defendants-ap-pellees, City of Baton Rouge et al.
    Before COVINGTON, PONDER and SARTAIN, JJ.

       Serving by appointment of the La.Sup.Ct.

   PONDER, Judge.

Plaintiffs appealed from the denial of a preliminary injunction to prevent the defendants from proceeding with plans to develop some property with an A-2.5 zoning classification.

Plaintiffs are owners of property in Essen Heights Subdivision located near the intersection of Interstate 10 and Essen Lane. The subdivision, composed of seventy-eight residences, has only one entrance and exit, that of North Essen Heights Court to Essen Lane. It formerly had two but the construction of Interstate 10 cut off South Essen Heights Court.

Some of the defendants are owners of a twenty six acre tract located in the rear of Essen Heights Subdivision. The property is otherwise bounded by Interstate 10 and Ward’s Creek.

Defendants made application for the change of the zoning of the 26 acre tract from A1 residential to B1 transitional so as to allow the construction of apartment complexes. Despite opposition from the residents of the subdivision, the Planning Commission approved the change. The first consideration by the Parish Council on May 23, 1978 resulted in six votes for approval and five votes against. The vote to deny was four votes for denial and six against. The Parish Council on June 27, 1978, voted four to rezone and six to deny. The Parish Attorney advised the council that the rezoning would require eight votes and a denial would require seven. The matter was therefore recessed. On August 22, 1978, the proposed ordinance was amended and then passed to provide that the change of zoning be from A-l to A — 2.5 after the original ordinance had failed. This classification allows the construction of townhouses.

The plaintiffs then filed a suit asking for an injunction on the grounds that the ordinance had not been validly enacted because of repeated considerations after the proposed change had failed to pass, because of no notice, no Planning Commission consideration and ruling on the change to A — 2.5 and because of failure to consider adequately the proposed change in light of the guidelines of Title 7, Section 10.7 of the Parish Ordinances.

The court after hearing the evidence on the rule to show cause why a preliminary injunction should not issue denied the preliminary injunction, saying that the A-2.5 classification was included within the B1 classification and that the notice for B1 would therefore be sufficient; and that while plaintiffs had presented evidence that the development would bring on some traffic, drainage and sewerage problems and increased inconvenience to them, nevertheless, the Planning Commission and the Council had considered these points and had still approved the change. The court could not find the action to be unreasonable, arbitrary or capricious. It did not address itself to the question of repeated consideration after failure to pass.

Much time and effort has been devoted to the question of irreparable injury. However, it is not always necessary to allege or prove irreparable injury in support of a rule for a preliminary injunction. See Caffery v. Powell, 320 So.2d 223 (3d Cir. 1975); Whalen v. Brinkman, 258 So.2d 145 (1st Cir. 1972).

We have considered plaintiffs’ substantial allegations of invalidity, but unfortunately find ourselves unable to address those issues. The copy of the amendment introduced into evidence was not certified. The zoning ordinance was not introduced at all; nor was there any allegations or proof that a copy had been filed with the Clerk of Court. Under these circumstances we are unable to take judicial cognizance of the zoning ordinance or the amendment thereto. La.R.S. 13:3712 B; Brown v. Parish of East Baton Rouge, 126 So.2d 173 (1st Cir. 1961).

We cannot therefore judicially determine whether there is substantial differences in the A-2.5 and B1 classifications, which we believe to be the real question, rather than just whether A-2.5 is included in Bl. See Rathkopf, The Law of Zoning and Planning, § 10.04.

We are unable judicially to determine that the ordinance was enacted in accordance with the Compreherisive Zoning Ordinance and after measuring the amendment by its guidelines.

We seriously considered remanding the case for the inclusion of these items but decided against such action in the interest of time and effort because of the fact that the matter is before us on the refusal of a preliminary injunction. The matter is still to be heard on the merits and any possible miscarriage of justice can be averted at that time by the correction of these omissions.

We therefore affirm. The costs of the appeal are assessed against appellants. All other costs are to await final outcome of the case.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Herb RAMEY and Norma Ramey v. John DEAN and Sue Dean.
    No. 12678.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1979.
    Robin W. Poirier, Daniel H. Taylor, Baton Rouge, for plaintiffs-appellees, Herb Ramey and Norma Ramey.
    Doris Gates Rankin, Baton Rouge, for defendants-appellants, John Dean and Sue Dean.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

ON MOTION TO DISMISS

On December 18, 1978, the trial judge, after hearing held, signed an order compelling the defendant to answer certain interrogatories, and assessed $200.00 as attorney’s fee and cast defendants in cost.

A Motion and Order of Appeal was filed and signed on January 12, 1979.

This Court, on its own motion, issued a Show Cause Order, directing the parties to show cause, by briefs, why the appeal should or should not be dismissed. The reason for its issuance was concern as to the jurisdiction of this court to hear the matter at this stage of the proceeding.

As stated by our esteemed brother, Judge Morris A. Lottinger, Jr., in the case of Winslow v. Goodyear Tire and Rubber Co. et al., 359 So.2d 699 (La.App. 1 Cir. 1978):

“The jurisprudence is clear that a judgment from an order compelling discovery is an interlocutory judgment which is nonappealable, absent a showing that irreparable injury will result. LSA-C.C.P. arts. 1841 and 2083, Roy v. Moity, 225 So.2d 315 (La.App. 3rd Cir. 1969).
“We fail to see where irreparable injury will result since this matter can be raised on appeal following a trial on the merits or by application to this court for the exercise of its supervisory jurisdiction including the issuance of necessary orders staying the execution of this judgment. The purpose of discovery devices is to facilitate proceedings at the trial level, and this court will not interfere with the orderly proceedings in the trial court and entertain appeals from interlocutory decrees absent a clear showing of irreparable injury.”

Since we have no jurisdiction, we cannot consider the question of proper service of the interrogatories.

Accordingly, the appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


text:
    Naheem George NASSAR, Jr. v. H. Coy FLETCHER and his Liability Insurance Carrier, Allstate Insurance Company.
    No. 10523.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 1979.
    Robert R. Faucheux, Jr., Reserve, for relator.
    Lloyd T. Bourgeois, Thibodaux, for respondent.
   ORDER

From defendant’s application for new trial as against the individual plaintiff alone (and not as against the subrogated insurer, plaintiff in the consolidated case), and from the wording of the application for new trial, it appears that the application asks for new trial on the ground that quantum is excessive. Notwithstanding that the application asked only for new trial, C.C.P. 1813 provides the court “may” indicate a period for remittitur as an alternative to granting a new trial. Under the circumstance that liability is established in the trial judge’s own $4,812.96 judgment for the subrogated insurer, this might well be an appropriate ease for remittitur. Unlike the trial judge in Fontenot v. Fidelity and Gas. Co. of N. Y., La.App. 3 Cir. 1969, 217 So.2d 702, our trial judge does not reject new trial as an imposition. To the contrary, he has granted a new trial, a burden he presumably does not need and could avoid by granting remit-titur, but only if plaintiff consented. Perhaps the trial judge has had informal indications from plaintiff (as did the trial judge in Fontenot) that plaintiff would not consent to the remittitur the trial judge deemed proper. We are unable from our point of view to say that C.C.P. 1813’s “may” in this case means “must”.

The application is therefore denied.


author: LEMMON, Judge.

text:
    STATE of Louisiana In the Interest of Catrice ALEXANDER.
    No. 10535.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1979.

      New Orleans Legal Assistance Corp., Steven R. Scheckman and Mark S. McTernan, New Orleans, for relator.
    Harry F. Connick, Dist. Atty., and Mary L.. Beck, Asst. Dist. Atty., Juvenile Division, New Orleans, for respondent.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   LEMMON, Judge.

This matter comes before the court on an application for supervisory writs under C.C.P art 2201. The application (and two other applications presented to the court along with the present one, involving similar situations in different cases) questions several rulings of the juvenile court relative to instanter orders issued pursuant to R.S. 14:403 G (6) in child abuse or neglect cases.

I

Catrice Alexander, a four-year old child, was placed in the protective care of the Department of Health and Human Resources on January 4, 1979 by an instanter order of the juvenile court issued pursuant to R.S. 14:403 G (6).

The court issued the order on the basis of an affidavit, which stated that juvenile police officers had found the child with several healed scars on her abdomen and buttocks and linear bruises on her back, as well as a fracture of the left arm and an old fracture of the right arm; that the child’s mother had stated the fracture of the left arm occurred when the child fell from furniture onto the floor, but she was not aware of a second fracture, and that the linear marks were the results of the child’s falling into a rose bush; that the mother later stated the linear marks were caused when the child was “itching herself”; and that the mother finally admitted using a belt to whip the child, thus causing the linear marks.

On February 26, 1979 the State of Louisiana filed a petition to have Catrice declared a child in need of care under C.J.P. art. 15 and 13(14)(b). However, no hearing date was set. Meanwhile, relator had filed six days earlier a motion to dismiss the child abuse proceeding on the basis that no hearing had been held within 45 days of .the instanter order, or alternatively to dissolve the instanter order on the basis that R.S. 14:403 is unconstitutional.

On February 28, 1979 the juvenile court continued the instanter order in effect, pending further disposition.

At the hearing on the motion on March 8, 1979 the court denied the motion. Relators then applied for supervisory writs, whereupon the juvenile court stayed all proceedings.

II

R.S. 14:403 provides a procedure for the investigation of reported cases of child abuse or neglect by the governmental agency responsible for the protection of juveniles. When immediate removal is necessary to protect the child from further abuse or neglect until the investigation is completed, R.S. 14:403 G (6) authorizes the juvenile court to issue an instanter order for the temporary removal and placement of the child upon request of the agency and showing of good cause by affidavit.

A written report to the district attorney must be completed within 20 days of the issuance of the instanter order [R.S. 14:403 G (8)], and a hearing must be held within 45 days of issuance of the instanter order [R.S. 14:403 G (7)].

Relator (the child’s mother) complains that the statute is unconstitutional in its failure to require (1) a preliminary hearing prior to or immediately after issuance of an instanter order on the issue of necessity of immediate removal and (2) an adjudicatory hearing on the merits of the neglect or abuse issue within a reasonable time.

In view of the result reached in the present case it is not necessary to rule on the constitutionality of the statute at this time. The juvenile court issued the instanter order upon being presented with an affidavit which convincingly established good cause for temporary removal and placement of the child. Relators did not dispute the verified factual allegations or request a hearing on the necessity of immediate removal. Indeed, relators made no attempt to contest the temporary removal until 47 days after the issuance of the instanter order, when they moved to dismiss the abuse proceeding for failure to hold a hearing within 45 days after issuance of the instanter order.

At the time relators filed their motion, the instanter order had expired because no hearing was held within 45 days of its issuance. However, because the instanter order relates only to the temporary removal and placement of the child as is necessary for the child’s protection pending completion of an investigation, the expiration of the order did not affect the abuse proceedings based on facts alleged in the petition filed after the completed investigation. The juvenile court therefore properly denied the motion to dismiss the abuse proceedings, and the matter should proceed to trial without further delay.

Nevertheless, the juvenile court had no authority to continue the instanter order in effect after 45 days. We accordingly grant the application for supervisory writs and order, in the exercise of our supervisory jurisdiction, that the instanter order be dissolved as expired. However, nothing herein is to be construed as preventing the request for, or the issuance of, any orders by the juvenile court for the temporary protection of the child, as long as relator is not denied a timely hearing on the necessity of such an order.

The matter is remanded to the juvenile court for further proceedings consistent with this opinion.

SUPERVISORY WRIT GRANTED, ORDER ISSUED, CASE REMANDED.

      .' There were properly verified affidavits attached to the order in the two companion cases. In the present case the order refers to and identifies a police report, but no report is attached. Because of the result we reach, however, it is not necessary to determine whether the report constituted an affidavit required by the statute.

      . In the companion case, State of Louisiana in Interest of Durvernay, 372 So.2d 1248, No. 10,-537 on the docket of this court, the juvenile court ruled that an instanter order, which had not been continued in effect or extended, expired after 45 days had elapsed without a hearing, but that the proceedings instituted by the child neglect petition remained viable and that the hearing on the merits of the petition should proceed.

      . In each of the companion cases the child was placed temporarily with a relative, pending disposition of the abuse or neglect proceeding.

      . It is important to distinguish between a hearing on the child abuse petition and a hearing on the instanter order. The child abuse proceeding may be instituted with or without an order of temporary removal and placement. On the other hand, an order of temporary removal and placement may be issued for good cause at any time, irrespective of the pendency of an abuse proceeding (and the order may be dismissed after investigation without an abuse proceeding ever being filed). Inherent in the court’s authority to issue such an order, however, is the preliminary showing of facts necessitating immediate removal and the right of the parents to a prompt hearing on the necessity of the order.
      When an abuse proceeding is instituted without an instanter order, the time for holding a hearing is not as critical and is controlled by general considerations. However, when an abuse proceeding is instituted in connection with an instanter order, the hearing on the merits of the petition (regardless of whether or not a hearing has been held on the necessity of the order) must be held within 45 days. This time period, which was legislatively designed to allow a complete investigation that often does not begin until after discovery of the facts upon which the instanter order is based, does not purport to fix the length of time a child may be separated from his parents without any hearing whatsoever, but simply sets the maximum length of time allowable for an investigation and hearing when a child has properly been placed in protective care.


text:
    STATE of Louisiana In the Interest of Kendra BROWN.
    No. 10536.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1979.

      New Orleans Legal Assistance Corp., Steven R. Scheckman and Mark S. McTernan, New Orleans, for relator.
    Harry F. Connick, Dist. Atty., and Mary L. Beck, Asst. Dist. Atty., Juvenile Division, New Orleans, for respondent.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   LEMMON, Judge.

This application for supervisory writs was presented to the court as a companion case with State in Interest of Alexander, 372 So.2d 1243, No. 10,535 on the docket, decided this day.

Kendra Brown, a three-month old child, was placed in protective care of the Department of Health and Human Resources on February 10, 1979 by an instanter order of the juvenile court, issued pursuant to R.S. 14:403 G (6).

The court issued the order on the basis of an affidavit of a social worker, which stated that the child had been taken to a hospital with a subgalean hematoma, a fractured skull and a fractured leg; that the father had stated the child had fallen off the edge of the bed, injuring her head; that the mother had stated she had fallen in a hole while carrying the child, which possibly injured the child’s leg eight days earlier; that medical authorities had stated the injuries were suspect in that the head and leg injuries probably would not have occurred as a result of the incidents as described; and that Mrs. Brown admitted that her husband had physically abused her and the child on a number of occasions.

On February 15, 1979 relators, the child’s parents, filed a rule to show cause why the instanter order should not be dismissed and the statutes ruled unconstitutional.

On February 16, 1979 the child was discharged from the hospital and the juvenile court amended the order and placed the child temporarily with her maternal grandparents, pending further investigation.

On March 8,1979 the juvenile court ruled the statutes were constitutional and denied the motion. Relators subsequently filed this application for supervisory writs.

The State of Louisiana filed a petition to have Kendra declared a child in need of care under C.J.P. arts. 15 and 13(14)(b) on March 15, 1979, and the juvenile court continued the instanter order in effect on March 21, 1979, inasmuch as all proceedings were stayed after the court was notified of the application for supervisory writs.

The juvenile court originally issued the instanter order upon being presented with an affidavit which convincingly established good cause for temporary removal and placement of the child. Relators have never disputed the verified factual allegations nor requested a hearing on the necessity of immediate removal.

The instanter order expired, however, when no hearing was held within* 45 days after its issuance, and the juvenile court’s attempt to extend the order or continue it in existence was incorrect. Therefore, the instanter order must now be dismissed.

However, the instanter order related only to the temporary removal and placement of the child, which was necessary for the child’s protection pending completion of the investigation. The expiration of the order did not affect the child abuse proceedings based on facts alleged in the petition, which was filed after the completed investigation. Therefore, the matter should proceed to trial without further delay.

Accordingly, we grant the application for supervisory writs and order, in the exercise of our supervisory jurisdiction, that the instanter order be dismissed as expired. However, nothing herein is to be construed as preventing the request for, or the issuance of, any orders by the juvenile court for the temporary protection of the child, as long as relators are not denied a timely hearing on the necessity of such an order.

The matter is remanded to the juvenile court for further proceedings consistent with this opinion.

SUPERVISORY WRIT GRANTED, ORDER ISSUED, CASE REMANDED.


text:
    STATE of Louisiana In the Interest of Wotu DUVERNAY.
    No. 10537.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1979.
    New Orleans Legal Assistance Corp., Steven R. Scheckman and Mark S. McTernan, New Orleans, for relator.
    Harry F. Connick, Dist. Atty. and Mary L. Beck, Asst. Dist. Atty., Juvenile Division, New Orleans, for respondent.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   LEMMON, Judge.

This application for supervisory writs was presented to the court as a companion case with State in Interest of Alexander, 372 So.2d 1243, No. 10,535 on the docket, decided this day.

Wotu Duvernay, a two-year-old child, was placed in the protective care of the Department of Health and Human Resources on December 19, 1978 by an instanter order of the juvenile court, issued pursuant to R.S. 14:403 G (6).

The court issued the order on the basis of an affidavit of a social worker, which stated that the child was brought to a hospital on December 10, 1978 by her mother, Miss Dale Smith, for treatment of a cough which had not responded to two weeks of home remedies; that the mother told hospital officials she and the child’s father had experimented with a health food diet for themselves and the child consisting primarily of fruits, nuts, vegetables and herbal teas; that the father claimed the child’s health problems were astrologically caused and were also due to the mother’s feeding the child grain and peas occasionally against his wishes; that the father also declared the child would have to go down to “skin and bones” in order to be cleansed of impurities received from the mother in childbirth and received from hospital treatment; that the father and mother, after discharging the child on December 12, 1978 against hospital advice, brought the child back on the same day with an apparent respiratory arrest and requested the child be given an enema and herbal tea; and that the parents have adamantly refused to cooperate with hospital treatment or additional laboratory tests.

When the child was ready to be discharged from the hospital on December 28, the order was amended to place the child temporarily with her maternal aunt and uncle.

On January 23, 1979 the State of Louisiana filed a petition to have Wotu declared a child in need of care under C.J.P. art. 15 and 13(14)(b). Two days later the court continued the instanter order indefinitely, pending further disposition. No hearing date was set.

On February 21, 1979 relators filed a motion to dismiss the proceeding on the basis that no hearing had been held within 45 days of the instanter order, or alternatively to dissolve the instanter order on the basis that R.S. 14:403 is unconstitutional.

At the hearing on the motion on March 2, 1979 the court ruled that the instanter order had expired by the passage of 45 days without a hearing, but proceeded to hear evidence on the issue of neglect raised by the petition. Contending that the expiration of the instanter order necessarily resulted in dismissal of the neglect petition, relators applied for and were granted a stay order. Relators then applied for supervisory writs.

The instanter order expired when no hearing was held within 45 days of its issuance. However, the instanter order related only to the temporary removal and placement of the child, and the juvenile judge correctly ruled that the child neglect proceedings had not been affected. The matter should now proceed to trial without further delay, and all otherwise admissible evidence may be introduced at the hearing.

Accordingly, the application is denied. However, nothing herein is to be construed as preventing the request for, dr issuance of, any orders by the juvenile court for the temporary protection of the child, as long as relators are not denied a timely hearing on the necessity of such an order.

APPLICATION DENIED.


author: DOMENGEAUX, Judge.

text:
    Joseph SMITH, Plaintiff and Appellee, v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY, Defendant and Appellant.
    No. 6434.
    Court of Appeal of Louisiana, Third Circuit.
    June 29, 1979.

      Michael Barron, Baton Rouge, for defendant and appellant.
    Donald R. Wilson, Marksville, J. Eddie Knoll, Dist. Atty., Marksville, for plaintiff and appellee.
    Before DOMENGEAUX,. GUIDRY, and STOKER, JJ.
   DOMENGEAUX, Judge.

This case is before us again, this time by remand from the Louisiana Supreme Court. It revolves around an interpretation of the Motor Vehicle Habitual Offender Law, La. R.S. 32:1471 et seq.

Section 1471 sets forth the strong legislative policy underlying the law:

“It is hereby declared to be the policy of this state:
(1) To provide maximum safety for all persons who travel or otherwise use the public highways of this state; and
(2) To deny the privilege of operating motor vehicles on such highways to persons who by their conduct and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this state, the orders of its courts, and the statutorily required acts of its administrative agencies; and
(3) To discourage repetition of criminal acts by individuals against the peace and dignity of this state and her political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of the traffic laws.”

The prohibition section of the statute, 1479, reads as follows:

“No license to operate motor vehicles in this state shall be issued to an habitual offender, nor shall a nonresident habitual offender operate a motor vehicle in this state:
(1) For a period of five years from the date of the order of the court finding such person to be an habitual offender; and
(2) Until such time as financial responsibility requirements are met; and
(3) Until upon petition, and for good cause shown, such court may, in its discretion, restore to such person the privilege to operate a motor vehicle in this state upon such terms and conditions as the court may prescribe, subject to other provisions of law relating to the issuance of operators’ licenses.”

Joseph L. Smith was adjudicated an habitual offender by the above captioned District Court on September 8, 1977, and his driving privileges were revoked under the mandatory provisions of the statute. Four days later, on September 12, 1977, he petitioned the same Court for and, after a hearing, was granted restricted driving privileges in order to allow him to go to and from his place of employment. The Department of Public Safety appealed, and we reversed. 358 So.2d 996 (La.App. 3rd Cir. 1978). In that opinion we were firmly of the view that section 1479 was clear and unambiguous, and we stated:

“We think it can be inferred from the specific and express policy declaration, the mandatory judgment provision, and the stringent penalty for violations of the judgment that the legislature meant to prohibit habitual offenders from driving on public highways. In this stern statutory context, it seems incongruous that the legislature would dilute the potency of the law by allowing habitual offenders to drive, even for limited and well-intentioned purposes. Had this been the intent, the strict language dealing with mandatory judgment would be unnecessary.
In conclusion, we construe La.R.S. 32:1479 to mean that an habitual offender is prohibited from operating a motor vehicle on the highways of the state for five years from the order of the court finding him an habitual offender. After five years and upon meeting financial responsibility requirements, a person so adjudged may petition the court for the restoration of his privilege to operate a motor vehicle, and such restoration may be given, in the court’s discretion, for good cause shown, upon the terms and conditions prescribed by the court.”

The Supreme Court granted writs and reversed us. Smith v. State, Through the Department of Public Safety, 366 So.2d 1318 (La.1978). The high court disagreed with our interpretation of the statute, and concluded that an adjudged habitual offender could, for good cause, be granted limited restoration of driving privileges during the five year period following the date of the Order of the District Court finding such person to be an habitual offender.

The Supreme Court’s interpretation of the statute departed from a strict application of the grammatical rule for sentences connected by the conjunction “and.” It is apparent that the high court opined that the legislative intent was to have the conjunction “or” connecting the numbered second and third paragraphs of La.R.S. 32:1479. It seems then, according to the Supreme Court’s pronunciamento, that an otherwise qualified and financially responsible habitual offender may obtain a new license if the five year revocation period has lapsed; “or” a conditional or restricted driving privilege within the five year period upon a showing of “good cause.”

The purpose of remanding the case to us is to determine whether the District Court acted within its discretion in finding that good cause exists for the limited restoration of Smith’s driving privileges during his five year revocation period. For the reasons shown hereinafter, we will remand this case to the District Court for further proceedings.

Mr. Smith is employed as an offshore diesel mechanic and normally works on a seven day shift. He resides in Marksville, Louisiana, and must commute a substantial distance to Houma, Louisiana. In addition to his regular shift, part of his work requires that he respond to emergency calls at any hour. We feel mandated to conclude, under the Supreme Court’s rationale, that if an habitual offender cannot obtain a restricted permit to drive at odd, irregular, or emergency hours so that he may earn a livelihood, there probably would be no situation when a restricted permit would be allowed. Accordingly, it is quite obvious that we have no alternative but to find that the trial court had “good cause” to grant a restricted privilege, limiting Smith’s driving allowances to those times when other means of transportation would be unavailable. But even under the liberal interpretation of the statute by the Supreme Court in favor of the offender, we find that the District Court’s limited allowance of driving privileges is too permissive and should be further restricted.

The District Court judgment goes beyond the granting of a restricted permit for emergency calls during odd and irregular hours when transportation cannot be planned ahead of time. The District Court judgment simply states that Smith can now operate a motor vehicle, but “only in connection with his employment.”

Smith testified that on his shift work, a car pool was attempted, but his fellow pool-ers objected to his only paying expenses but never participating in the driving. Consequently, he asked the District Court for, and was apparently granted, the right to commute alone in his truck each work week.

We think that, except for emergency calls, Mr. Smith should not be allowed to drive the long distance to work if there is other transportation available. The record is very incomplete with reference to alternative forms of transportation. It may be that other transportation, such as a public bus, might be available, which Smith could make advance plans to take. A further investigation of his present car pool arrangement should be made, and his fellow poolers should be called to testify in that regard. It also may be that Mr. Smith could make arrangements with his wife or friends and relatives, or whomsoever, to drive him to and from his regular work. Absent any of those possibilities, and any others which may be developed by the trial court, then, if Mr. Smith must participate in a car pool, and that it be necessary that he take his turn in driving, he might be allowed to use his vehicle only on those days when it is his week to drive.

As we view the strong legislative policy in mandating that habitual offenders be removed from the highways in the interest of the safety of all persons who travel or otherwise use our highways, any easy avenue for finding good cause to allow driving privileges to an habitual offender should be precluded.

Should it develop on remand that alternate means of transportation to and from work may result in more cost or inconvenience to Mr. Smith, that fact should by no means outweigh the right of maximum safety afforded to persons who travel or otherwise use our highways.

In accordance with the foregoing, this case is remanded to the District Court so that evidence might be obtained on the question of other available transportation to accommodate Mr. Smith’s weekly job trips. After this determination, the District Court’s judgment should be modified in order to reflect such findings, and in order to permit the habitual offender the use of his vehicle on emergency calls in connection with his employment, in accordance with the views expressed herein.

Any costs in connection with this remand to us by the Supreme Court are assessed against the Department of Public Safety. Costs on remand to the District Court to be assessed by it.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . We note that a paradoxical situation exists with reference to the revocation of driving privileges in Louisiana. La.R.S. 32:415.1 provides that a person whose driver’s license has been suspended, revoked, or cancelled for the first time only may secure restricted driving privileges in order to continue to support his family; however, if such a person suffers a second suspension, revocation, or cancellation, he is not entitled to restricted driving privileges. Perry v. State, Department of Public Safety, Driver's License Division, 353 So.2d 318 (La. App. 1st Cir. 1977), writ denied 354 So.2d 1385 (La.1978). If that same person goes further, and ultimately qualifies for, and is adjudged, an habitual offender under La.R.S. 32:1471 et seq., he may again be granted restricted driving privileges. We feel that this anomaly warrants the attention of the Louisiana Legislature.