text:
    Mrs. Joan TRAHAN, Individually and For and on Behalf of the Minor, Belinda Sue Trahan v. HIGHLANDS INSURANCE CO. et al.
    No. 59780.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Arthur Tidwell and Highlands Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1163, Third Circuit, Parish of Calcasieu.

Writ denied. The result is correct.

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Isadore I. ROSEN.
    No. 59751.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Isadore Rosen applying for writs of certiorari, prohibition, mandamus and habeas corpus.

Writ granted. Applicant is ordered released from custody and/or bail. In the transcript of the preliminary examination there has been shown no probable cause to charge applicant with violation of R.S. 40:967, 968 and/or 969, or with any lesser included offense. (Art. 296, C.Cr.P.).

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

SANDERS, C. J., is of the opinion that the ruling of the trial judge should be upheld and the writ refused.


author: DIXON, J., TATE, J.,

text:
    STATE of Louisiana v. Dorothy A. HOOKER and Gary B. Garretts.
    No. 59852.
    Supreme Court of Louisiana.
    June 2, 1977.
   In re: State of Louisiana through District Attorney, Harry F. Connick applying for writs of certiorari, mandamus and prohibition.

Not considered. Not timely filed.

DIXON, J.,

would grant. For good reason this court may consider an application filed late. In this case the ruling of the trial court is clearly erroneous and, the short period allowed for writ application might have been arbitrary.

TATE, J.,

would grant, since an application should not be considered untimely where good cause is shown for a 5-minute delay in filing an application. While I am uncertain that the trial court erred, the issue is of sufficient public interest to justify an examination of it by this court in a definitive opinion.


text:
    STATE of Louisiana v. Steven LUKEFAHR.
    No. 59935.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Steven Lukefahr applying for writs of certiorari, mandamus and prohibition.

Granted. Bond ordered reduced to $40,-000.00.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent from the reduction of the bond, being of the opinion that the trial judge did not abuse his discretion.


text:
    STATE of Louisiana v. Joseph TROTTA.
    No. 59936.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Joseph Trotta applying for writs of certiorari, mandamus and prohibition.

Granted. Bond ordered reduced to $40,-000.00.

SUMMERS, J., dissents from the reduction of this bond, being of the opinion the trial judge did not abuse his discretion.


text:
    STATE of Louisiana v. Gregory FALCONE.
    No. 59937.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Gregory Falcone applying for writs of certiorari, mandamus and prohibition.

Granted. Bond ordered reduced to $40,-000.00.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent from the reduction of the bond being of the opinion that the trial judge did not abuse his discretion.


text:
    STATE of Louisiana v. John S. SHIELDS.
    No. 59938.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: John S. Shields applying for writs of certiorari, mandamus and prohibition.

Granted. Bond is ordered reduced to $40,000.

SUMMERS, J., is of the opinion the bail should not be reduced and accordingly dissents on the ground that the trial judge did not abuse his discretion.


text:
    Jarysch SANSONNI et al. v. JEFFERSON PARISH SCHOOL BOARD.
    No. 59862.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Jefferson Parish School Bd. and Gulf Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, 344 So.2d 42, Fourth Circuit, Parish of Jefferson.

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

SUMMERS and MARCUS, JJ., are of the opinion that the writ should be granted.


text:
    STATE of Louisiana v. David DELORE.
    No. 59863.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: David Delore applying for writs of certiorari, prohibition and mandamus.

Writ refused. No abuse of discretion.

DIXON, J., concurs in the denial. See State v. Howard, La., 325 So.2d 812.


text:
    Richard Price YATES, Sr., et al. v. John BROWN et al.
    No. 59867.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Richard Price Yates, Sr., et al applying for certiorari, or writ of review, to the Court of Appeal, 344 So.2d 37, Fourth Circuit, Parish of Orleans.

Writ denied. On the facts found by the courts below, there was no error of law in the judgments.

DIXON, J., dissents from denial.

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


text:
    CHIN SEE FUN v. LOUISVILLE AND NASHVILLE RAILROAD CO., John Doe and XYZ Insurance Company.
    No. 59868.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Chin See Fun applying for certiorari, or writ of review, to the Court of Appeal, 344 So.2d 8, Fourth Circuit, Parish of Orleans.

Writ denied. Based on the assignment of errors, we find no merit in the application.

DIXON and CALOGERO, JJ., are of the opinion the writ should be granted.


author: DIXON, J.,

text:
    STATE of Louisiana v. Jan H. UNVERZAGT.
    No. 59871.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Jan H. Unverzagt applying for writ of certiorari.

Writ refused. No merit in application.

DIXON, J.,

dissents from denial. There is no evidence of violation óf R.S. 32:103. Defendant might have been guilty of .careless and reckless driving when she backed out of a parking lot at 10-15 mph. R.S. 32:103 prohibits only dangerous movement of a “stopped, standing or parked” vehicle. The moving of the vehicle from the parked position did not endanger the deputy.

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

DENNIS, J., dissents from denial of the writ for the reasons assigned by DIXON, J.


text:
    STATE of Louisiana v. Linwood WEST.
    No. 59899.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: State of Louisiana applying for supervisory writs.

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

SANDERS, C. J., and SUMMERS and MARCUS, JJ.,' are of the opinion that a writ should be granted.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr. v. CITY OF BATON ROUGE and Parish of East Baton Rouge and Pittman Construction Company, Inc.
    No. 57781.
    Supreme Court of Louisiana.
    April 13, 1976.
   In re: State of Louisiana, William J. Guste, Jr., Attorney General applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 345 So.2d 520.

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


text:
    F. G. SULLIVAN, Jr., d/b/a F. G. Sullivan, Jr., Contractor v. The CITY OF BATON ROUGE, the Parish of East Baton Rouge, the Hon. W. W. Dumas, Mayor-President, the Council of the City-Parish of East Baton Rouge, the Honorables Edgar L. Watts, Jr., Johnny Dykes, William T. Winfield, Joseph A. Delpit, Stanley J. Gross, Tommy Neck, Dr. C. P. "Tony" Currier, William S. Day, Jr., Jewel J. Newman, Earl Harrison, George Dabbs, and Michael G. Roubique.
    No. 57989.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: F. G. Sullivan, Jr., d/b/a F. G. Sullivan, Jr., Contractor applying for writs of certiorari, prohibition and mandamus. 345 So.2d 908.

Writ refused. The ruling of the Court of Appeal was interlocutory only and the case is assigned for hearing in Court of Appeal on June 7. Hence, this Court will not exercise its supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Sylvester K. MAJORS v. Hon. Frank J. SHEA, Judge Criminal District Court Sec. "G" Parish of Orleans New Orleans, Louisiana.
    No. 59668.
    Supreme Court of Louisiana.
    May 25, 1977.
   In re: Sylvester K. Majors, applying for writs of certiorari, and/or review, mandamus and prohibition.

Writ granted. Relator has failed to first make application to the district court for relief sought. Hence relator’s application will be transferred to the district court so that district judge can act on relator’s application. See Art. 913, C.Cr.Pr. and State ex rel. Mathews v. Henderson, 292 So.2d 496.


text:
    STATE of Louisiana ex rel. Warren Bailey BEARD v. Sybil FULLERTON, Chairman, Louisiana Board of Parole.
    No. 59792.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Warren Bailey Beard applying for writ of habeas corpus.

Writ granted in part. Relator has not first applied to district court for relief. Accordingly, relator’s application will be transferred to the district court so that the trial judge can act upon relator’s petition for habeas relief.


text:
    STATE of Louisiana v. Larry NETTLETON.
    No. 59859.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Larry Nettleton applying for writ of certiorari and review.

Application denied; no error of law in the rulings of the district court.


text:
    STATE of Louisiana v. John DEFRANCES.
    No. 59845.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: John Defrances applying for writs of certiorari, prohibition and mandamus.

Writ denied. The judgment is not final— applicant has an adequate remedy for review in the event of conviction.


text:
    STATE of Louisiana v. Yola Mae HARRIS.
    No. 59820.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Yola Mae Harris applying for writs of certiorari, prohibition, mandamus and for stay order.

Writ denied. The application is without merit.


text:
    Barney R. WALKER v. R. T. GRAHAM et al.
    No. 59812.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: R. T. Graham, Sidney Sanders, Trudie Cloud and Ambassador Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit Parish of Sabine. 343 So.2d 1171.

Writ denied. Judgment is not final.


text:
    STATE of Louisiana v. Sammy JONES, Jr.
    No. 59786.
    Supreme Court of Louisiana.
    June 1, 1977.
   In ye: Sammy Jones, Jr., applying for writ of review.

Writ denied. No error of law shown under the facts presented by this record.


text:
    STATE of Louisiana v. William T. JONES.
    No. 59962.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: William T. Jones applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. The rulings of the trial judge are correct.


text:
    STATE of Louisiana v. John DEFRANCES.
    No. 59846.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: John Defranees applying for writ of certiorari, review, prohibition and mandamus.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Monty M. Wyche, Judge of the 26th Judicial District, Court for the Parish of Bossier, to transmit to the Supreme Court of Louisiana, on or before the 22nd day of June, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Phillip SCHAMBURGE, Jr.
    No. 59854.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Phillip Schamburge, Jr., applying for remedial writs.

Writ not considered. Applicant must first apply in the parish from which he was sentenced. La.Code Crim.Pro. art. 352.


text:
    STATE of Louisiana v. Raymond CAMPBELL.
    No. 59953.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Raymond Campbell applying for writs of certiorari, mandamus and prohibition.

Not considered. The official U. S. postmark shows that the application was mailed one day past the 30 delay within which application for writs must be made. La.C. Civ.P. art 2167(2); La.Sup.Ct.Rule 10, Section 4(b) (1973). The application is not timely.


text:
    STATE of Louisiana ex rel. Douglas Ray LEVERETT v. STATE of Louisiana.
    No. 59793.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re:' Douglas Ray Leverett applying for writ of habeas corpus.

Writ granted in part. The relator shall be furnished a copy of the record of his Boykin proceeding. Otherwise the writ is denied.


text:
    James D. CRAWFORD v. AL SMITH PLUMBING & HEATING SERVICE, INC. and State Farm Fire & Casualty Company.
    No. 59787.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: James D. Crawford applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 344 So.2d 63.

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


text:
    Mrs. Charles Kinchen LUSHUTE v. Frank J. DIESI and Little Capitol of Louisiana.
    No. 59811.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Little Capitol of Louisiana, Inc., applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of St. Landry, 343 So.2d 1132.

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


text:
    STATE of Louisiana ex rel. Andrew JOHNSON, Jr. v. Hon. Edwin A. LOMBARD, Clerk, Criminal District Court, Parish of Orleans.
    No. 59860.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Andrew Johnson, Jr., applying for writ of mandamus.

Writ denied. Application moot. Record on appeal has now been lodged in this court.


text:
    DIESI-PONTIAC-CADILLAC-BUICK, INC. v. Sam FADAOL d/b/a Sam Fadaol Diesel Service.
    No. 59833.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Sam Fadaol d/b/a Sam Fadaol Diesel Service applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry, 343 So.2d 1131.

Writ denied. On the facts found by the courts below, the result is correct.


text:
    Ele Waylan PEARCE v. Maxine Bailey, wife of Ele Waylan PEARCE.
    No. 59842.
    Supreme Court of Louisiana.
    June 2, 1977.
   In re: Maxine Bailey, wife of Ele Waylan Pearce, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 344 So.2d 75.

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


text:
    ACADIANA BANK v. Kimball Aubrey FOREMAN et al.
    No. 59800.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Wilson J. Moosa applying for cer-tiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of St. Landry, 343 So.2d 1138.

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


text:
    STATE of Louisiana v. Edwin Ernest BUTLER, Jr.
    No. 59702.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Edwin Ernest Butler, Jr., applying for writs of certiorari.

Writ application dismissed. We grant the joint motion of the State and defendant to dismiss this application.


text:
    FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE v. NOVEM, INC.
    No. 59865.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Custom Painting Contractors, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson.

Writ denied. The result is correct.


text:
    Eloise VICTOR v. MEYDRICH'S VENICE GARDENS SUPERMARKET et al.
    No. 59884.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Eloise Victor applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 344 So.2d 56.

Writ denied. No error of law in the judgment.


text:
    SUCCESSION of Antoinette BROYARD, wife of Mike Gabriel, Jr. (a/k/a Michael Gabriel, Jr.).
    No. 59888.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Mike Gabriel, Jr., (a/k/a Michael Gabriel, Jr.) applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 344 So.2d 24.

Writ refused. There is no error of law in the judgment.


text:
    Rodney JOHNSON v. N.O.P.S., INC. and Edward S. Forster c/w. Doris JACKSON, Natural Tutrix of Daughter, Alberta Jackson v. NEW ORLEANS PUBLIC SERVICE, INC. and Checker Cab Co., et al., c/w. HARRY BERNARD, IND., and as Administrator of the ESTATE of minor child, Keith BERNARD v. N.O.P.S., INC., Rodney Johnson and XYZ Insurance Co.
    No. 59891.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: New Orleans Public Service, Inc. and Edward S. Forster applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 344 So.2d 34.

Application denied; on the facts found by the court of appeal, the judgment is correct.


text:
    STATE of Louisiana v. Milton Eric DICKINSON.
    No. 59976.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Milton Eric Dickinson applying for writs of review, prohibition and/or mandamus.

Writ granted. Denial of continuance set aside. It is ordered that continuance be granted for minimum of 20 days from this date. Trial date to be set by trial judge.


text:
    Marybelle DEMAIO and Joseph Demaio v. Robert THERIOT.
    No. 59836.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Robert Theriot applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette, 343 So.2d 1143.

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


text:
    STATE of Louisiana, THROUGH DEPARTMENT OF HIGHWAYS v. REGENT DEVELOPMENT CORPORATION.
    No. 59887.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Department of Highways applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 344 So.2d 46.

Writ denied. We find no merit in the assignments of error.


text:
    CITY OF BATON ROUGE v. Chris A. CHOPPIN, Guy Fahs, Thomas B. Freeman, Jr., James F. Geary, Robert Pou, Brian K. Treager, Donald J. Tourres.
    No. 59945.
    Supreme Court of Louisiana.
    June 3, 1977.
   In re: Chris A. Choppin, et al., applying for supervisory writs.

Writ granted. Trial in this case is ordered to be held within 10 days, or dismissed.


text:
    ALLSTATE INSURANCE CO. v. LOUISIANA GAS SERVICE CO.
    No. 59892.
    Supreme Court of Louisiana.
    June 6, 1977.
   In re: Louisiana Gas Service Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 344 So.2d 386.

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


text:
    STATE of Louisiana v. Donald R. SIMS and Tyler Lee Sims.
    No. 59874.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Donald R. Sims and Tyler Lee Sims, applying for writs of certiorari, prohibition and mandamus.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable John R. Ballard and John F. Fant, Judges of the First Judicial District, Court for the Parish of Caddo, to. transmit to the Supreme Court of Louisiana, on or before the 29th day of June, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Alvin BIGGS.
    No. 59794.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: State of Louisiana through the District Attorney, Harry F. Connick, Parish of Orleans applying for writs of certiorari, prohibition and mandamus.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Bernard J. Bagert, Sr., Judge of the Criminal-District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 29th day of June, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    Jean Orr HEBERT v. John Allen HEBERT.
    No. 59889.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Jean Orr Hebert applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 344 So.2d 384.

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


text:
    STATE of Louisiana v. Milton J. HELMKE, Jr., and Milton J. Helmke, III. STATE of Louisiana v. Mercedes KERNER.
    No. 59901.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Anthony J. Russo, Magistrate Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 29th day of June, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained. ,

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


text:
    AMERICAN BANK & TRUST CO. IN MONROE v. CARSON HOMES, INC., et al. AMERICAN BANK & TRUST CO. IN MONROE v. Loyd C. FOX et al. AMERICAN BANK & TRUST CO. IN MONROE v. Loyd C. FOX, etc., et al. AMERICAN BANK & TRUST CO. IN MONROE v. LAKESHORE REAL ESTATE EXCHANGE, INC.
    No. 59943.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Carson Homes, Inc., Lakeshore Real Estate Exchange, Inc., Loyd Fox, etc., et al., Foundation Apartments, Inc. applying for certiorari, or writ or review, to the Court of Appeal, Second Circuit, Parish of Ouachita. 344 So.2d 456.

Writ denied: No error of law.


text:
    M. A. BLALOCK and Boyce McConathy Blalock v. AMERICAN EMPLOYERS INSURANCE CO., et al.
    No. 59920.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: M. A. Blalock and Boyce McCona-thy Blalock applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson, 345 So.2d 166.

Writ denied. On the facts found by the courts below, the result is correct.


text:
    STATE of Louisiana v. Junior Ray SPOTVILLE.
    No. 59911.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Salva-dore T. Mule, Judge of the Juvenile, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 29th day of June, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    Margaret Stafford CHAMPAGNE v. Louis V. CHAMPAGNE.
    No. 59905.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Margaret Stafford Champagne applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches, 345 So.2d 229.

Writ Denied: No error of law in the denial of attorney’s fees. See Janise v. Janise, 328 So.2d 711 (La.App.3d Cir. 1976), Certiorari denied 333 So.2d 233 (La.1976).


text:
    STATE of Louisiana ex rel. Robert M. SKIPPER v. Ross MAGGIO, Warden, La. State Penitentiary, and Sixth Judicial District Court.
    No. 59581.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Robert M. Skipper applying for writ of habeas corpus.

Writ refused. Relator is not entitled to the relief prayed for.


text:
    STATE of Louisiana v. Jeffrey SCOTT.
    No. 59848.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Jeffrey Scott, applying for remedial writs.

Writ denied. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana ex rel. Frank MILLSAP, Jr. v. Ross D. MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59881.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Frank Millsap, Jr., applying for writs of habeas corpus, mandamus and cer-tiorari.

Writ denied. There is no merit to this application.


text:
    John M. LOB v. HERITAGE INSURANCE CO. OF AMERICA.
    No. 59886.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: John M. Lob, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 344 So.2d 11.

Writ denied. The judgment of the Court of Appeal is correct.


text:
    STATE of Louisiana ex rel. Marques L. BLARES v. Rudolph BECKER, Judge.
    No. 59906.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Marques L. Blakes applying for writ of mandamus.

Application denied; on February 28,1977 the district judge denied petitioner’s application for writ of habeas corpus; since this is an application for mandamus to require the trial judge to act, it is now moot.


text:
    STATE of Louisiana ex rel. Billy HENDERSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59909.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Billy Henderson applying for remedial writs of certiorari.

Writ denied. The trial court disproves the allegations of relator.


text:
    STATE of Louisiana ex rel. Michael Odell DAVIS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59927.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Michael Odell Davis applying for remedial writs of certiorari.

Writ refused. There is no merit in application. The Bill of Information is duly signed by the District Attorney.


text:
    Ethel Matthews PARKER v. Howard HANKS.
    No. 59930.
    Supreme Court of Louisiana.
    June 8, 1977.
   In re: Ethel Matthews Parker applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Jefferson Davis, 345 So.2d 194.

Application denied; result correct.


author: MORIAL, Judge. REDMANN, Judge,

text:
    Sherman DAVIS and Alvin Johnson v. Charles BOWMAN and Marie Bowman.
    No. 7779.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    On Rehearing Feb. 15, 1977.

      Charles J. Pisano, New Orleans, for plaintiffs-appellants.
    Michael H. Bagot, John H. Gniady, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Plaintiffs sued to recover for personal injuries and property damage resulting from an automobile collision with a car operated by Charles Bowman and owned by Marie Bowman. The accident occurred on April 11,1975 at the intersection of Earhart Boulevard and Simon Bolivar Street in New Orleans. After a trial on the merits, plaintiffs’ suit was dismissed without reasons at their costs. We affirm in part and reverse in part.

On the date of the accident, plaintiff Davis was operating a vehicle owned by plaintiff Johnson in a southerly direction down Earhart Boulevard. There is a conflict in the allegations of the petition and the testimony of Davis as to his lane of travel on Earhart. Davis testified that he was in the left lane. Charles Bowman had been traveling down Earhart in a southerly direction. He had stopped for a red light at the intersection in question. Defendant Bowman testified that he was in the left lane of Earhart Boulevard. The parties agreed that Bowman was in a lane to the left of plaintiff’s lane. When the traffic signal light became green, Bowman attempted to make a right turn onto Simon Bolivar from his position in the left lane. Bowman had almost completed the turn, when plaintiff came from behind and hit his right rear bumper and fender.

There are' two lanes of travel on Earhart Boulevard at the point before the intersection with Simon Bolivar. There are also two lanes running parallel and to the left of the Earhart lanes coming off the Expressway ramp. The two sets of lanes are separated by a solid median strip. There are semaphore signals controlling traffic at the intersection. There are also phase diagrams above each lane directing the traffic as to the proper course of travel. The diagram over the lane closest to the right curb nearest the sidewalk on Earhart contains two arrows ( ), directing the traffic to either move forward or to make a right turn. The diagrams over the other three lanes ( † † | † ) to the left, direct the traffic to continue on a straight course and do not allow for k turning maneuver.

Davis argues that defendant made an improper turn from the left lane cutting directly in front of his vehicle. He denies that he intended to make a right turn. He also argues in his brief that the trial judge was in error in rendering his decision without hearing the testimony of the investigating officer. The officer had been subpoenaed but was ill the day of trial. Plaintiffs’ counsel contends in his brief that at a pretrial conference the judge agreed to delay his decision until he heard the policeman’s testimony. There is no evidence in the record to support this discussion or agreement. Plaintiff closed his case without reserving his right to call other witnesses.

Bowman testified that a vehicle in the left lane at the intersection is permitted to make a right turn. He believed that Davis was required.to make a right turn. Bowman testified that he checked the right lane via his rear view mirror and didn’t see the plaintiff’s car approaching.

Defendant cites several cases where party in a vehicle traveling to the right of a car making a right turn was found to be negligent. Bowman also argues that plaintiffs have failed to sufficiently prove their damages. He contends that since Johnson returned his car to the car dealer without making any repairs, he is not entitled to damages. Defendant argues that Davis did not prove a loss of wages or medical expenses.

The cases cited by defendant on liability are inapplicable. The driver making the right turn in Lambert v. Foy, 224 So.2d 11 (La.App. 1 Cir. 1969) was properly in the right outside lane and was hit from behind by the overtaking following driver who was also in the right lane. In Linnear v. Wilson, 312 So.2d 685 (La.App. 2 Cir. 1975) the following driver was traveling improperly on the right shoulder of the road. In Rea v. State Farm Mutual Automobile Ins. Co., 149 So.2d 136 (La.App. 2 Cir. 1963) the following vehicle was traveling in the parking lane to the right of the right turning vehicle. In Ferris v. NOPSI, 242 So.2d 335 (La.App. 4 Cir. 1970); writ denied, 257 La. 986, 244 So.2d 857 (1971) the following bus driver was in the right parking lane at a complete stop and proceeded without taking proper care. Here, Davis was traveling in a regular lane of travel and defendant Bowman was making a right turn from a left lane of traffic. Davis was not guilty of any of the negligent acts of the following vehicles in the cases cited by defendants.

A motorist in making a right turn has a statutory duty to ascertain that both the approach for the turn and the turn itself shall be made as close as practicable to the right hand curb or edge of the roadway. See LSA-R.S. 32:101. Moreover, a motorist shall not turn a vehicle at an intersection unless the vehicle is in the position above described or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. See LSA-R.S. 32:104. The law does impose upon a following motorist a duty to exercise great care; however an exception to this general rule is recognized where the driver of a lead vehicle negligently creates a hazard which the following driver cannot reasonably avoid. See Nesbit v. Travelers Insurance Co., 218 So.2d 396 (La.App. 2 Cir. 1969). Bowman was negligent in making a right turn from a lane of traffic which was to the left of the right turn lane.

Defendant testified that he surveyed the area before making the turn. However, this did not free him of negligence. In Jones v. Armstead, 169 So.2d 268 (La.App. 1 Cir. 1964) the court found a driver making a right turn negligent for looking in his mirror and not seeing the following car, stating: “To look and not [to] see [a] vehicle is equivalent of not looking at all and is negligence.”

We also consider the phase diagram above the lane in which Bowman was traveling. The diagram directed him to proceed forward only. The diagram on the right directed a right turn to be made from the right lane only. Bowman’s conduct in disregarding the phase diagram was in violation of the duty imposed upon him. See Roig v. Delesdernier, 268 So.2d 519 (La.App. 4 Cir. 1972); Bush v. Westside Transit Lines, Inc., 211 So.2d 447 (La.App. 4 Cir. 1968).

We do not think Johnson should be allowed to collect the amount of the estimate of repair costs. This is not a situation where an owner did not repair his car. Johnson returned the car to the seller after the collision because of the seller’s failure to provide him with a certificate of title. He has failed to prove any actual damage to himself as a result of the collision.

Davis is entitled to recover an amount for lost wages. He testified that he missed work for three days and earned $24.00 a day. A claim for lost wages may be proven by plaintiff’s own reasonable testimony, if accepted as truthful, although it is better to introduce corroborating testimony. See Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971). Davis also testified that he had already used his sick leave. It is logical to conclude that plaintiff was not paid for the three days he was absent from work.

There is sufficient proof in the record that Dr. Klinger treated Davis for injuries he sustained in the collision. Dr. Klinger billed Davis for $200.00 in medical expenses. Davis is also entitled to general damages for pain and suffering. The doctor’s report stated that he suffered pain and tenderness in his lower back. Plaintiff complained of pain for a two month period. We award plaintiff $350.00 in general damages.

For the foregoing reasons that part judgment of the First City Court of New Orleans dismissing the suit of plaintiff, Alvin Johnson is affirmed; that part of the judgment of the First City Court of New Orleans dismissing the suit of plaintiff, Sherman Davis, is reversed; and it is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Sherman Davis, and against the defendants, Charles Bowman and Marie Bowman, jointly and in solido in the full sum of six hundred twenty-two and no/100 ($622.00) dollars together with legal interest from date of judicial demand until paid and for all costs.

AFFIRMED IN PART, REVERSED IN PART.

REDMANN, Judge,

dissenting in part.

The majority opinion correctly disposes of liability (although the presence of “phase diagrams” in the record may be questioned). But it errs in refusing recovery to plaintiff “owner” for the damage to the car. The “owner” had paid over $800 of the purchase price which the vendor refused to return because, at least in part, of the damaged condition of the car. (The sale fell through because the vendor could not provide the car’s certificate of title.) Plaintiff owner has been damaged to the full amount of the $329.28 necessary to repair the car and should recover that amount.

ON REHEARING

The application of Marie Bowman for a rehearing is granted.

The judgment previously rendered herein is amended in part to read as follows:

* * * and it is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Sherman Davis and against defendant Charles Bowman, in the full sum of six hundred twenty-two and no/100 ($622.00) dollars together with legal interest from date of judicial demand until paid and for all costs.


author: BEER, Judge. PER CURIAM.

text:
    Sadie Gertler, wife of/and David GERTLER v. CITY OF NEW ORLEANS et al.
    No. 7925.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied June 7, 1977.

      Emile J. Dreuil, Jr., New Orleans, for defendant-appellant.
    Chaffe, McCall, Phillips, Toler & Sarpy, Peter Frank Liberto, New Orleans, for defendant-appellant.
    Philip Schoen Brooks, City Atty., Henry W. Kinney, III, Jack P. Panno, Asst. City Attys., for defendant-appellant.
    Gertler & Gertler, M. H. Gertler, New Orleans, for plaintiffs-appellees.

      Before SAMUEL, SCHOTT and BEER, JJ.
   BEER, Judge.

The chronological resume contained in the trial court’s Reasons for Judgment is accurate. It states:

“This is a hearing on a petition for Writ of Certiorari and Review.
“In the Petition for Review on a statement of the case, it is alleged that in July, 1974, one David Gertler on behalf of Sadie Gertler, his wife, made an application for non-structural repairs on property designated as 605 Harrison Avenue, which also fronts on 6301 Louis XIV Street in the City of New Orleans.
“The Department of Safety & Permits issued Building Permit Number 6804, in connection with the said non-structural repairs, and on September 19, 1974, while the repairs were going on, a Miles J. Kehoe filed an appeal from the decision of the Department of Safety & Permits. “A hearing was held on September 19, 1974, in which the petitioner, David Gert-ler, and several neighbors appeared and gave various statements as to their position on the property designated as 605 Harrison Avenue. After a hearing on the matter, the Board of Zoning Adjustments upheld the appeal of Miles J. Ke-hoe against the decision of the Director of Safety & Permits to revoke the Building Permit issued.
“The Gertlers applied to this Court for the Writ heard herein. ' This Court set the return date on the Writ 8 November 1974. A copy of the proceedings on the return of the Writ of Certiorari was filed by the City of New Orleans, through the Department of Safety & Permits.
“This Court issued an Order asking for memorandums to be submitted not later than January 6, 1975, in connection with the issues before the Court. After all memorandums had been received, this Court called another pre-trial conference and set the matter for trial to be tried by the Court de novo. This pre-trial was set on January 27, 1975, and the matter was set for trial to begin April 10, 1975.”

The trial court also observed:

“Prior to the beginning of the hearing, the attorney for Mr. Kehoe and the attorney for the City of New Orleans objected to the Court hearing this matter de novo and took the position that the case should be reviewed solely on the record returned under the Writ of Certiorari. This Court took the position that, under the statute in question it had the right to hear the matter in its entirety and, therefore, overruled the objection of Mr. Kehoe and the City of New Orleans.”

Proceeding on this basis and, thereafter, making factual findings different than those made by the Board of Zoning Adjustments, the trial court concluded:

“To sum up this Court finds that Dr. Armand Suarez conducted a dental office at the Harrison address and that the said dental office, the use thereof, was designated a legal non-conforming use, that at the time the Gertlers purchased the property it maintained the same status.
“It is the Court’s belief that under the Comprehensive Zoning Ordinance of 1970, Article 12, Section 4, et seq., a non-conforming use of a building may be changed to another non-conforming use. In addition, the Court believes that there were no structural alterations made in violation of any city zoning ordinance. “Therefore, it is the opinion of the Courts that the decision by the Board of Zoning Adjustments adopted at the meeting held September 24, regarding the herein matter, is hereby annulled, revoked, and set aside, and a Board of Zoning Adjustment’s decision to uphold the appeal of Miles J. Kehoe is hereby reversed.
“It is further the opinion of the Court that the resolution which directed the director, Edward C. Kurtz, of the Safety & Permits Department to revoke the ‘Use and Occupancy Permit Number 6302,’ is hereby annulled, revoked, and set aside.”

The Louisiana Constitution of 1974 provides in Art. 5, Sec. 16:

. . (A) Original Jurisdiction. Except as otherwise authorized by this constitution, a district court shall have original jurisdiction of all civil and criminal matters.
(B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.”

LSA-R.S. 33:4727 provides for the legislative creation of boards of adjustment, and further provides for a review procedure for those aggrieved by any decision of such boards:

“Any person or persons jointly or severally aggrieved by any decision of the board of adjustment, or any officer, department, board, or bureau of the municipality, may present to the district court of the parish or city in which the property affected is located a petition, duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board. Upon the presentation of such petition the court may allow a writ of certiorari directed to the board of adjustment to review the decision of the board of adjustment and shall prescribe therein the time within which a return may be made and served upon the relator’s attorney, which shall be not less than ten days but which may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from but the court may, on application, on notice to the board and on due cause shown, grant a restraining order. The board of adjustment shall not be required to return the original papers acted upon by it, but may return certified or sworn copies thereof or such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take additional evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or in part, or may modify the decision brought up for review. Costs shall not be allowed against the board unless it appears to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from. All issues in any proceedings under this section shall have preference over all other civil actions and proceedings. Amended by Acts 1968, No. 240, Sec. 1.”

The City of New Orleans has enacted a Comprehensive Zoning Law (as amended in 1970) which provides (in Art. 13, Sec. 16, as well as Art. 15, Sec. 2.4, Subsection 5) that:

“Any person or persons, or any officer, department, commission, board, bureau, or any other agency of the City of New Orleans jointly or singularly aggrieved by any decision of the Board of Zoning Adjustments may present to the Civil District Court of the Parish of Orleans, within thirty (30) days after filing of the decision in the office of the Board, a writ of certiorari asking for such relief and under such rulés and regulations as are provided for such matters in appropriate legislation of the State of Louisiana.”

In State v. Board of Zoning Adjustments, 251 La. 691, 206 So.2d 74 (1968), plaintiffs applied for a writ of certiorari to review a decision of the Board of Zoning Adjustments for the City of New Orleans which had granted a variation from the zoning requirements. The Civil District Court for Orleans Parish issued the writ and reversed the decision of the board. On appeal, this court reversed. The Supreme Court granted certiorari, reversed us, and observed:

“(1) The instant law, supra, is sua gener-is. It pertains to special matters — zoning — and must be strictly construed. The Board of Zoning Adjustments is an administrative body which renders decisions. There is no provision in either Section 6 of Article XXVII of the Comprehensive Zoning Ordinance, City of New Orleans, or LSA-R.S. 33:4727, providing for a trial de novo of the matters heard before and decided by the Board of Zoning Adjustments. However, both provide for application for certiorari to the district court.
‘Certiorari is in the nature of an appellate process; it is a method of obtaining review, as contrasted to a collateral assault.
1 * * *
‘The function of a writ of certiorari is to correct substantial errors of law committed by a judicial or quasi-judicial tribunal which are not otherwise reviewable by a court. Its purpose is to review the findings and acts of inferior tribunals and officers exercising judicial or quasi-judicial functions, in order to determine whether their jurisdiction has been exceeded, or to ascertain whether the evidence furnishes any legal and substantial basis for the decision of the inferior tribunal.
‘ * * * ’ 14 Am.Jur.2d Certiorari, Sec. 2 Nature and office of writ, pp. 778-779. ‘Certiorari is an extraordinary writ offering a limited form of review, its principal function being to keep inferior tribunals within their jurisdiction.’ 14 C.J.S. Certiorari § 2, p. 122.
‘The Supreme Court, the Courts of Appeal, and each of the judges thereof, subject to review by the court of which he is a member, and each district judge throughout the State * * * may also, in aid of their respective jurisdictions, original, appellate, or supervisory, issue writs of * * * certiorari * * * and where any of said writs are refused, the appellate courts shall indicate the reasons therefor.’ Art. VII, Sec. 2, La. Const, of 1921.
‘Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.’ Art. 2201, Code of Civil Procedure. ‘ * * * Primarily, the province of that writ is to “pronounce on the validity of a judicial proceeding.” * * * This writ is granted only in case “the suit is to be decided in the last resort, and where there lies no appeal, by means of which proceedings absolutely void might be set aside,” * * * ’ State ex rel. Wells-Fargo Exp. Co., et al v. Martin, Justice of the Peace, 48 La.Ann. 1249, 20 So. 729. (2) It follows that the Civil District Court for the Parish of Orleans acted as a reviewing court in an appellate capacity when it heard the writ of certiorari previously granted by it. Under LSA-R.S. 33:4727, it was permitted to take additional evidence for the proper disposition of the matter. Original jurisdiction was therefore in the Board of Zoning Adjustments and not in the district court.”

Then, in Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (La.1971), Richard Bowen instituted, by original petition, a suit in the district court of his domicile seeking review of an adverse ruling of the Board of Review of the Division of Employment Security (Louisiana Department of Labor). The district court, on its own motion, dismissed the suit for lack of jurisdiction. The Supreme Court reversed. Citing Art. 1, Sec. 6 of the Louisiana Constitution of 1921 (now Art. 1, Sec. 22 of the Louisiana Constitution of 1974), the Court held that there is a “presumption that all administrative determinations are reviewable by the court . (W)e must not only favor but preserve the right of review.” The Court went on to distinguish between “judicial review” and “judicial appeal” concluding that when the district courts review the adjudications of administrative bodies, they exercise their original jurisdiction, and courts of appeal and the Supreme Court provide the “only appellate judicial review of administrative matters.”

This was followed by River Oaks-Hyman Pl. H. Civ. A. v. City of New Orleans, 281 So.2d 293 (La.App. 4th Cir., 1973), in which we interpreted Bowen v. Doyal to hold that “when a district court reviews a decision of an administrative body, it is exercising ‘exclusive original jurisdiction.’ ” We further observed that “(c)ertainly the Zoning Board is an Administrative Agency.”

Magnum Corp. v. Dauphin, 293 So.2d 582 (La.App. 3rd Cir., 1974) writs den. 295 So.2d 813, followed River Oaks and concluded that even though the Louisiana Constitution:

“. . does not specifically grant appellate or supervisory jurisdiction to the district courts to review decisions of administrative boards, such as Boards of Zoning Adjustment * * * In view of the decision in Bowen v. Doyal . we conclude that district courts have original jurisdiction ... to review the decisions of Boards of Zoning Adjustment created pursuant to the provisions of LSA-R.S. 33:4721 et seq. The district courts have original jurisdiction to review decisions of those Boards, we think, despite the fact that LSA-R.S. 33:4727 authorizes only a review by the district courts by means of a writ of certiorari * * * The district court may issue a writ of certiorari in aid of its original jurisdiction in that type case.”

But, even if the district court has “original jurisdiction,” it must, generally, accord a presumption of regularity to the decisions of boards of adjustment. This presumption is rebuttable. However, no reviewing court can, out of hand, simply substitute its own judgment for that of a zoning board or other properly constituted and validly functioning administrative agency. It must first determine or establish whether or not the decision of the board or administrative agency is supported by substantial and competent evidence adduced in proceedings which are regular and orderly. See Anderson, American Law of Zoning, Vol. 3, Secs. 21.16 et seq., (hereafter, “Anderson”), and particularly the following:

“While the scope of review in appeals from a board of adjustment is generally a narrow one, limited to a determination of whether the board’s decision was arbitrary, unreasonable, or capricious, and whether the record contains substantial evidence in support of the findings of the board, some enabling acts provide for a broader review, including the taking of additional evidence by the reviewing court. The Standard State Zoning Enabling Act provides that if it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. Nearly two-thirds of the states have adopted this language, or some variation of it. These provisions have broadened the scope of review and blurred its dimensions.
“Some courts have construed provisions for the taking of additional testimony as authorizing a trial de novo by the reviewing court. Other courts have viewed the scope of review more narrowly, saying that notwithstanding the provision for the taking of new evidence, ‘there is nothing to indicate that the Legislature intended to change the office of the writ (of certiorari) so as to make it operate as an appeal,’ and that a trial de novo is not authorized.” (Anderson, supra, Sec. 21.-19) (Citations omitted.)

In White v. Louisiana Public Service Commission, 259 La. 363, 250 So.2d 368 (1971), the Supreme Court, acting on an appeal from a district court which had affirmed orders of the Louisiana Public Service Commission, stated:

“Ordinarily, review of administrative rulings does not even allow the trial court or this court to make independent findings of fact where there are findings of fact in the record, unless there is a showing that the findings of fact were arbitrary and unreasonable and made without substantial evidence.”

The genesis of this approach is traceable, we believe, to the Administrative Procedure Act (LSA-R.S. 49:951 et seq.). Sec. 964(G) of the Act provides that:

“The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record.
In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.”

Under Sec. 951(2) of the Act, the word “Agency” is defined as “each state board, commission or department which makes rules, regulations or policy . . . pursuant to . the constitution or laws of the United States or the constitution and statutes of Louisiana, except the Legislature or any branch, committee or officer thereof and the courts.”

Courts, on occasion, have characterized a zoning board as an “administrative agency.” See River Oaks-Hyman Pl. H. Civ. A. v. City of New Orleans, supra. LSA-R.S. 33:4727 provides that the district court may issue a writ of certiorari directed to the Board of Adjustment to review the decision of the board and provides that the court may reverse or affirm, wholly or in part, or may modify the decision brought up for review. Courts have used the language of the Administrative Procedure Act in the adjudication of matters stemming from a decision of a zoning board. See Times Picayune Pub. Corp. v. City of New Orleans, 316 So.2d 147 (La.App. 4th Cir., 1975); Nassau Realty Co. v. City of New Orleans, 221 So.2d 327 (La.App. 4th Cir., 1969); River Oaks-Hyman Pl. H. Civ. A. v. City of New Orleans, 288 So.2d 420 (La.App. 4th Cir., 1974) writs ref. La., 290 So.2d 909; McIntosh v. City of New Orleans, Dept. of Regulatory Inspection, 188 So.2d 183 (La.App. 4th Cir., 1966); and Reeves v. North Shreve Baptist Church, 163 So.2d 458 (La.App. 2nd Cir., 1964). Characteristic of this approach is Nassau Realty Co. v. City of New Orleans, 221 So.2d 327 (La.App. 4th Cir., 1969), wherein the owner of a lot was denied a permit variation from the requirements of the zoning ordinance and therefore sought a writ of certiorari from the Civil District Court for the Parish of Orleans. The district court (Judge David Gertler) dismissed the suit. On appeal, we affirmed the trial judge’s decision and adopted the trial court’s reasons for judgment which read, in part, as follows:

“This Court will not substitute its judgment for that of the administrative tribunals in the absence of a showing by plaintiff that the administrative tribunal was arbitrary and capricious, or that it abused its discretion.”

Although the Administrative Procedure Act provides a basis for the reversal of a board-type decision whenever it is “[m]an-ifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record,” the Act applies to “state” boards, commissions or departments and not, necessarily, to municipal administrative boards.

Should we continue to analogize the zoning board to “state” boards, and thereby vicariously adopt the quoted language of the Administrative Procedure Act?

If so, then we must consider both records — that of the board and that of the district court — in order to finally determine if the board manifestly erred within the definition of the Administrative Procedure Act. To do this, we must address the question of whether or not the Board of Zoning Adjustments was arbitrary and capricious in making the factual determination that Dr. Suarez had ceased practicing as a dentist at the location in question for a period of more than six months prior to the sale, thereby obviating the new owner’s right to make a non-conforming use of the premises.

The following testimony adduced at the board hearing and trial significantly relates to this issue:

Mr. David Gertler, a party plaintiff and husband of Sadie Gertler, first visited the property in question during the latter part of December, 1973, at which time the door to the dentist’s office was open. (Tr. Vol. IV, p. 111.) At that time, the dentistry equipment was still in the office and the plumbing and electrical facilities were still operational. (Tr. Vol. IV, p. 112.) Mr. Gertler had visited the premises only twice prior to the sale thereof, and at both times, noted Dr. Suarez seated and reading in an area to the rear of the dentist office (marked with an “o” on the Farnet plan, Exh. P-16) (Tr. Vol. IV, pp. 112, et seq., and 123, 137), but acknowledges that he never saw any patients. (Tr. Vol. IV, p. 138.) On cross-examination, Mr. Gertler acknowledged that he had no personal knowledge concerning the use of the premises prior to the December, 1973 visit. (Tr. Vol. IV, p. 177.)

Mr. Gertler was the preparer of the affidavit which the Suarezes had signed and which was admitted into evidence. (Exh. P-7.) This affidavit was subsequently notarized by Mr. Gertler outside the presence of the affiants. (Tr. Vol. IV, p. 122.) Emphasis was placed upon the fact that in May, 1974, the property was classified by Mr. Frank E. Robin, the Chief Building Inspector and Administrator of the Department of Safety and Permits, as a non-conforming use based solely upon the affidavit signed by Mr. and Mrs. Suarez. This allegation was corroborated by Mr. Robin at the trial. (Tr. Vol. I, pp. 94-95.)

Mrs. A. R. Suarez, the wife of Dr. Suarez, testified that from the time the house was built, Dr. Suarez had practiced dentistry there (Tr. Vol. Ill, p. 249). To that extent, the den area would sometimes be used as a waiting room for patients. (Tr. Vol. Ill, pp. 261, 275 and 309.)

It was the hope of Dr. and Mrs. Suarez to some day have another dentist occupy the premises (Tr. Vol. Ill, pp. 272, 285). They fully realized and were continuously aware of the non-conforming use of the premises as a dentist’s office (Tr. Vol. Ill, p. 264).

Dr. Suarez’s health began to fail in the early 1970’s. Mrs. Suarez testified:

“. . . when he went to the doctors in Florida, which was the year my daughter got married, that’s four years ago, he was still practicing, he finished practicing that year and finished all his customers, all his patients.” “. he had to finish his work, he wouldn’t let it go.” (Tr. Vol. Ill, p. 282.)

Furthermore, Dr. Suarez was advised that he should not do

“. . . tedious work like grinding of the teeth ... so that therefore he could do X-ray and he could look at a patient and so then when it got to the point that, you know, he was just taking this in to keep the place to be used as a dental office, he didn’t want it to be closed because he wanted it to be either rented or he was going to sell it to a dentist, so knowing this, he would take X-rays at times for the family or friends, not really charging them anything, because he was disabled and the Veterans were paying him.” (Tr. Vol. Ill, p. 256.)

Three or four months prior to the sale of the house, Dr. Suarez had ceased even to attend the office at all. (Tr. Vol. III, p. 256.)

Nevertheless, Mrs. Suarez attested that the dental equipment remained in the office and “the office was never closed to patients;” Dr. Suarez still had a license to practice, and the exterior signs advertising his practice continued to be maintained (Tr. Vol. III, pp. 256, 257, 263). Mrs. Suarez testified that the X-ray equipment could have been used until about three months prior to the sale of the house:

“. .he used it off and on at least one or two or three times a month, he’d use it, just maybe taking x-rays or something to keep that as a dental office and this is what he wanted to do. . . .” (Tr. Vol. III, p. 266.)
“The only thing that he would use would be . the x-ray machine.” (Tr. Vol. III, p. 267.)

Mrs. Suarez qualified this by testifying .1 wasn’t with him all the time, let’s be fair about it, I wasn’t. I was working. ...” (Tr. Vol. Ill, p. 267.)

Finally, Mrs. Suarez notes:

“. . .he (Dr. Suarez) did most of the work for relatives and close friends, he did not do it because of the fact he was not well, he didn’t want to chance on people and charge them and chance that he may hurt them in any way so he just went ahead and did it just to keep the office open.” (Tr. Vol. Ill, p. 305.)

Mrs. Suarez explained that they expected to sell the office to a dentist,

“. . .so therefore we kept that in use and in order to be able to sell it to a dentist, we weren’t stupid, I mean my husband, you know, I knew it through someone told me that you got to keep the place open if you want to sell it to a dentist, well, my husband knew it too.” (Tr. Vol. Ill, p. 307.)

Mrs. Suarez essentially admits that Dr. Suarez did X-raying “just ... to keep the place open. . . .” (Tr. Vol. III, p. 308.)

Mr. Philip Zollinger, a real estate broker, obtained a listing agreement with the Suarezes to sell the property in question on October 18, 1973. On that date, he visited the premises and returned on several subsequent occasions. (Tr. Vol. II, pp. 52, 63, 65.) Dr. and Mrs. Suarez were anxious to have a dentist buy the house (Tr. Vol. II, pp. 101, 102). When Mr. Zollinger visited the premises, he observed Dr. Suarez only in the residential portions thereof (Tr. Vol. II, p. 70) and never saw Dr. Suarez working (Tr. Vol. II, pp. 102, 103). To the best of Mr. Zollinger’s knowledge, the electricity and water were still running between January 4 and March 13, 1974 (Tr. Vol. II, pp. 71, 75-76).

At the district court hearing, seven neighbors (Otis A. Reed, Steven J. Toman, Mrs. Sybil Vinci, Mrs. Alice Gomila, Mr. Bryan O. Reynolds, Mr. Miles J. Kehoe, and Mr. John M. Coman, Jr.), who lived near the Suarez premises and had been in a position to observe any flow of patients to and from the dentist office, indicated that Dr. Suarez discontinued his practice several years prior to the sale of the property. The majority of these neighbors cited Dr. Suarez’s disabling and deteriorating condition as the primary reason for the cessation of his dentistry practice. All of these neighbors testified, with only slight variations, that no persons nor patients were seen to have entered or exited the dentist office during the six-month period in question.

Eight neighbors, including four who later testified at the trial, testified before the Board to the effect that Dr. Suarez had definitely discontinued his dental practice for a period greater than six months prior to the sale to Mrs. Gertler. Reference to the transcript of the proceedings before the Board (which constitutes a part of the record before us) reflects testimony on the part of these witnesses to the effect that Dr. Suarez had not practiced for three to four years prior to the sale because of his illness.

It is uncontested that Dr. Suarez’s dental practice (after 1970) constituted a legal non-conforming use of the premises. This would lapse if such practice ceased for a continuous period of six calendar months. (Art. 12, Sec. 2 of the 1970 Ordinance.)

The Board, in its finding of fact, stated: “Whereas, the Board also considered the overwhelming testimony of so many neighbors as to 6301 Louis XIV losing its non-conforming status, since the dentist has been incapacitated for over six months. . . . ”

However, the trial court concluded:

“that Dr. Suarez was a practicing dentist at 605 Harrison Avenue at the time or shortly before he sold the property to the Gertlers. In any event, he had practiced dentistry at this location at least six months prior to the sale of the property to the Gertlers, and, therefore, it did not lose its non-conformity for that reason.”

Though this conclusion is not, in our view, manifestly erroneous, we must, also, observe that the record or proceedings before the Board does contain supportive testimony for the Board’s finding that Dr. Suarez retained his dental equipment for the calculated purpose of simply maintaining the appearance of a dental office (thereby preserving its non-conforming status on a non-aeceptable basis).

Though the records, when considered together, can support a conclusion that the equipment remained on the premises and the dental office remained “open” and that use was made of the X-ray equipment on limited occasions and signs on the front lawn and glass window were left in place; those records also can support a conclusion that few, if any, patients entered the premises after 1970; that none were actively treated for at least six months prior to the sale; that Dr. Suarez had himself delisted as a dentist from the yellow pages of the phone book in 1972; that by January, 1972, the house and dental equipment had been put up for sale (Tr. Vol. I, pp. 33, 34); that the income tax returns for 1973 fail to report any income from the practice of dentistry (Exh. Kehoe-11); that Dr. Suarez received Veterans Benefits for being totally disabled after 1972; and, finally, that Mr. Toman, who rented the apartment on the premises, never saw any patients nor heard any sounds resembling a dental drill.

Mr. Toman leased a portion of the property and allegedly sold magazine subscriptions by telephone from there. But this activity was proscribed by the then existing 1953 Ordinance. Note the distinction in State Ex Rel. Time Saver Stores v. Board of Zon. Adj., 261 So.2d 273 (La.App. 4th Cir., 1972) writs ref. 262 La. 311, 263 So.2d 47, where the building was used in whole for separate non-conforming uses. Here, Toman’s use was violative of the 1953 Ordinance and not a legal non-conforming use.

The record lacks any relevant evidence indicating that the governing municipality had knowledge or written notice that the use of the premises violated any existing zoning ordinance such as to trigger the applicable prescriptive statute (Act 455 of 1956 as amended by Act 415 in 1962 as further amended by Act 54 of 1972 as presently found in LSA-R.S. 9:5625). The action initiated by Miles Kehoe had not prescribed. See Parish of Jefferson v. Bertucci Brothers Construction Company, 176 So.2d 688 (La.App. 4th Cir., 1965) writs ref. 248 La. 416, 179 So.2d 16; Parish of Jefferson v. Groetsch, 256 So.2d 722 (La.App. 4th Cir., 1972) writs ref. 260 La. 1204, 258 So.2d 552.

Addressing appellants’ claim that the property had been structurally altered by Mrs. Gertler, we note that Art. 12, Sec. 4 of the 1970 Ordinance provides:

“If no structural alterations are made, a non-conforming use of a building may be changed to another non-conforming use

And Art. 14, Sec. 105 defines “Structural Alterations” as follows:

“Structural alterations. Any changes in the supporting members of a building, such as footings, bearing walls or partitions, columns, beams, or girders, or any substantial change in the roof or exterior walls, excepting such repair as may be required by an official governmental agency for the safety of the building.”

The Board found:

“Whereas, it was noted that application for'Use and Occupancy Permit on file in Safety and Permits Office states office space to be used will not exceed 702 sq. ft. This would be the space occupied by previous owner for dentist office. The members saw that the actual space to be used for dress shop exceeds this 702 sq. ft., incorporating a former apartment. Therefore, the cubical content is being added to. The exterior, it is felt by the members has been altered enough to change the appearance of the area and does in their opinion adversely effect the neighborhood. By paving a former rear yard area in this RD-2 Two Family Residential District the Board feels a commercial appearance will replace a residential look. They are of the opinion that it would not be in keeping with the intent and purpose of the Ordinance to allow this business as cubical content and exterior appearance have been altered in this non-conforming building. . . .”

However, the district court concluded:

“. . . the Court is convinced that no structural changes were actually made to the property in question.”

The district court further opined that the changes effected by Mrs. Gertler have not materially affected an aesthetic view of the neighborhood nor have they done an unsightly job in connection with their redesign of the area in question.

Appellants allege three instances of “substantial structural alterations:”

1. The amount of glass paneling in the exterior wall doubled, substantially changing an exterior wall and constituting a change in a bearing wall.
2. An original brick wall inside the area had two door openings, each widened to 7 foot openings, constituting a change in a bearing wall.
3. The removal of the remaining interior partitions, the paving of the backyard, the altering of the page fence, and the construction of partitions in the family room (Area Y, P-16, Page B) when taken together constitute a substantial structural alteration.

Responding, appellees rely upon the testimonies of Messrs. Edward Goins (the general contractor for Mrs. Gertler) and Stewart Farnet (the architect for Mrs. Gertler) which reflect that no structural changes were made. Although changes were made in the walls; partitions were constructed for dressing rooms; the partitions separating the former dentist office from the apartment were removed; the roof was repaired; and doors widened, these alterations did not change the “supporting members” of the building and were, at most, a resectioning of the existing interior space or cosmetic improvements to the exterior.

We take note that the district court also dealt with the Board’s finding that the space used by Mrs. Gertler for the dress shop exceeded that allowed by the Use and Occupancy Permit (i.e. 702 square feet). Specifically, the trial judgé emphasized Mr. Ferran’s (the Board Chairman) testimony concluding “that at no time when they (the Board) visited the premises did they actually measure the square feet now occupied by the Gertlers.” Mr. Ferran testified that he “stepped off” the distances in addition to studying the carpenters’ plans. The testimony of Mr. Gertler (Vol. IV, p. 151) (also p. 144) shows that a former den or family room, used by the Suarez family, and not used as a dentist office or by Mr. Toman for commercial purposes, was used by the boutique as dressing rooms and display area.

.CONCLUSION

The 1970 Ordinance (Art. 12, Sec. 2) reads in part:

“Neither the intention of the owner nor that of anybody else to use a building or lot or part of either for any nonconforming use, nor the fact that said building or lot or part of either may have been used by a makeshift or pretended nonconforming use shall be taken into consideration in interpreting and construing the word ‘vacant’ as used in this section.”

Thus, if the Board had a proper evidentiary basis for concluding that the activities of Dr. Suarez were “makeshift or pretended,” then the Board’s final decision cannot be said to be impugned with caprice or arbitrariness. Generally, see In Re Coleman, 242 So.2d 602 (La.App. 4th Cir., 1970); Fuller v. City of New Orleans, 311 So.2d 466 (La.App. 4th Cir., 1975).

The Board, at a duly noticed and regularly conducted hearing, publicly received testimony from numerous persons on both sides. Then, “. . . the Board members felt that an on the scene inspection was necessary to see for themselves and fully understand the case. After said inspection the members discussed scene and reviewed file. ...”

Again, we note that if, on the basis of this inspection, the Board made factual findings which have support in the record, such findings cannot be said to be capricious or arbitrary.

Although, on one hand, we might disagree with the Board’s findings and, on the other hand, ascribe no manifest error to those findings of the district judge, we are obliged to sustain the Board’s conclusions unless the weight of the evidence in its entirety so strongly preponderates against such conclusions that it compels us to find an abuse of discretion on the part of the Board.

Even though the evidence adduced at the trial of this matter before the district court cannot be said to form a basis for a finding that the trial judge manifestly erred in his appraisal thereof, we, likewise, can not conclude that the Board acted arbitrarily, capriciously or with any calculated or prejudicial lack of discretion. For this reason, we must reverse the decision of the district court and reinstate the decision of the Board.

Accordingly, it is ordered that the judgment of the Civil District Court for the Parish of Orleans, read, rendered and signed on June 6, 1975, be and the same is hereby annulled, revoked and set aside, and it is further ordered that the resolution adopted by the Board of Zoning Adjustments at a meeting held September 24, 1974, Re: Docket [ XXX-XX-XXXX ] Louis XIV St., RD-2 Two Family Residential District, be and the same is hereby reinstated.

REVERSED AND RENDERED.

ON APPLICATION FOR REHEARING

Before SAMUEL, SCHOTT and BEER, JJ.

PER CURIAM.

It is more likely than not that legal proceedings in a court of record will provide due process safeguards not necessarily available (or as vigorously enforced) in municipal zoning board proceedings.

Were we to perceive that the measure of our judicial deliberation was the weighing of the relative due process merits of those two proceedings, we would affirm the judgment of the Civil District Court.

However, in its twelve-page written reasons for judgment, the Civil District Court for the Parish of Orleans makes no reference whatsoever to any instance where the Board of Zoning Adjustments-has limited or impinged upon the due process rights of applicants for rehearing. The Civil District Court for the Parish of Orleans determined that the evidence adduced in the proceedings before that court was more supportive of applicants’ factual contentions. Had the Civil District Court for the Parish of Orleans made factual findings, supported by the record, that applicants’ due process rights were materially or substantially impinged, such conclusions might have supported that court’s ultimate finding that the Board’s actions were arbitrary and capricious. Such was not the case.

The application for rehearing must be denied.

REHEARING REFUSED

      . Note, however, Art. 5, Sec. 16 of the Louisiana Constitution of 1974 previously quoted in this opinion.

      . Mrs. Suarez did not testify at the Board hearing. Her first and only appearance as a witness was at the trial.

      . See Board transcript: Emile Dreiul, pp. 3, 5; Miles Kehoe, p. 6; Sybil Vinci, p. 7; Otis A. Reed, pp. 7-8, 12; Joseph S. Casey, p. 8; Harold Lee, p. 9; John Kohlman, p. 9; Bryan O. Reynolds, p. 22 and his letter to Board dated September 16, 1974.


author: STOULIG, Judge.

text:
    Joseph Lee LAVERGNE v. WESTERN COMPANY OF NORTH AMERICA, INC., et al.
    No. 7950.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      S. Michael Cashio, New Orleans, for plaintiff-appellant.
    Watson, Blanche, Wilson & Posner, David W. Robinson, Baton Rouge, for Zigler Shipyards, Inc., and The Fidelity & Cas. Co. of New York, defendants-appellees.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

This is an appeal from a judgment dismissing as prescribed the products liability claim of Joseph Lavergne, an injured seaman, against a shipbuilder for allegedly designing and constructing a defective barge stairway that caused his injury. Plaintiff was injured September 29, 19.71 aboard Barge 1602 while working as an equipment operator for its owner, The Western Company of North America, Inc.

On November 27, 1973, plaintiff filed a damage suit in state court (1) against his employer and its insurer, Highlands Insurance Company, under the Jones Act (46 U.S.C. § 688); and (2) against Zigler Shipyards, Inc., and its insurer, The Fidelity & Casualty Company of New York, under the general maritime law for designing and building the defective shipboard ladder from which he fell.

Plaintiff compromised his Jones Act claim. The defendant shipbuilder pleaded exceptions of improper cumulation of actions, vagueness and prescription. The trial judge dismissed the first two exceptions, and maintained the exception of prescription. Plaintiff has appealed from the judgment dismissing his suit and defendants answered the appeal to reurge their dismissed exceptions in the event we reinstate plaintiff’s suit.

The issue before us is whether plaintiff’s claim constitutes a maritime tort that may be brought within any reasonable period that does not prejudice the defendants’ ability to defend or whether it rests solely on C.C. art. 2315 and must be brought within a year from the date of injury (C.C. art. 3536.).

The Civil Code prescription is un-disputedly procedural but the doctrine of laches in maritime law is traditionally substantive. In adjudicating admiralty issues — in this case timeliness of filing suit— Louisiana courts are bound to apply the more liberal federal doctrine. Our state procedural law must yield to insure that the general maritime law will be uniformly applied throughout the country. See discussion in Sewerage & Water Board of New Orleans v. Sanders, 264 So.2d 270 (La.App. 4th Cir. 1972); writ refused, 262 La. 1157, 266 So.2d 443 (1972).

That Louisiana courts have concurrent jurisdiction with federal courts to adjudicate admiralty claims is beyond dispute. Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967). See also Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942). These authorities and cases therein cited dispose of appellees’ contention that having selected a state court to present an admiralty claim, the plaintiff is bound by state statutes of limitations.

Appellees also argue a products liability suit against a shipbuilder does not fall within the admiralty jurisdiction conferred by 28 U.S.C. § 1333. Rather the “saving to suitor” clause under which this is brought contemplates an area where the state has exclusive jurisdiction.

We disagree. This suit, independent of the Jones Act claim, could have been brought in federal or state court. Plaintiff, a seaman, alleges he was injured aboard a vessel operating in navigable water and engaged in a traditional maritime activity. In Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), the court states a maritime tort has occurred where there is negligent injury to a claimant involved in a traditional maritime activity on or over navigable water. Because the claim is grounded in admiralty, the court erred in maintaining the state prescriptive period of one year.

By answer to this appeal, defendants seek review of the judgment overruling the other exceptions. Because the Jones Act claim has been settled, the question of proper or improper cumulation of actions is moot. As to vagueness, we agree plaintiff’s petition is conclusory and does not adequately state the factual basis for its assertion that the steps were designed and/or constructed in a negligent manner. Plaintiff should amend to set forth his cause, of action more clearly.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered the exception of prescription is overruled, the exception of improper cumulation is dismissed as moot, and the exception of vagueness is maintained. This matter is remanded for further proceedings consistent with the views herein expressed. Defendants are to pay the cost of this appeal.

REVERSED AND REMANDED.

      . “The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
      (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”


author: SCHOTT, Judge. GULOTTA, Judge,

text:
    Anthony P. FERRANTELLI v. William WRIGHT and Horace Wright, Jr., Individually and d/b/a H. Wright, Painting Contractor.
    No. 7997.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      Sherman F. Raphael and Frank B. Hayne, III, New Orleans, for plaintiff-appellant.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his claim for damages allegedly resulting from an assault and battery perpetrated on him on March 14,1973, by defendants, Horace Wright and his son Billy. When the testimony was completed the trial judge gave the following reasons for his judgment:

“From the evidence the Court concludes that Mr. Wright did not hit Anthony, that the only fighting that took place consisted of pushing and scuffling, wrestling on the ground between the two boys; that both of these boys leave an awful lot to be desired in these premises, both by their conduct and their language. “The Court concludes from the evidence that both boys used foul language, both boys pushed and got pushed, both boys wrestled on the ground and that one was the cause of the fight just as much as the other.”

The trial consisted of the testimony of plaintiff and a neighbor, Mrs. Dimaggio, who if believed by the trial court would have provided him with a basis for deciding that the attack on him was unprovoked and consisted of a beating by both defendants, culminating in plaintiff running from his own yard where the attack took place to Mrs. Dimaggio’s house on the other side of the street, chased by Horace Wright to Mrs. Dimaggio’s gate, terminating only when Mrs. Dimaggio warned Horace Wright not to enter her premises. On the other hand, the trial judge apparently believed the testimony of defendants, together with two of Horace’s employees who had all been previously engaged in a painting job on the house next door to plaintiff’s, and who testified that plaintiff provoked a scuffle with young Wright when he verbally abused Horace by cursing him.

The trial judge’s decision was essentially a credibility call and on that basis would not support an action for assault and battery under the circumstances of this case in accordance with the principles of law set forth in Tripoli v. Gurry, 253 La. 473, 218 So.2d 563.

Two of plaintiff’s specifications of error center around the court’s refusal to accept as true the testimony of Mrs. Dimaggio. He complains that the heart of the trial judge’s error was in failing to believe that Mrs. Dimaggio had a clear view of the entire affair from her front porch where she said she was. sitting just across the street from the scene of the attack. Plaintiff complains that the court declined to view the scene, arguing that such a view would have convinced the trial court that Mrs. Dimaggio could have seen the entire affair from her vantage point, and he complains that the trial court was in error when refusing to grant a new trial on the basis of photographs which plaintiff took after the trial and which demonstrate that Mrs. Dimaggio was in a position to see the whole incident if she was there in the first place. In the court’s reasons for judgment, however, the following was said:

“There is grave doubt in the Court’s mind —we’ll add this to the reasons — there is grave doubt in the Court’s mind as to whether or not Mrs. Dimaggio was on the porch rather than grave doubt as to whether her vantage point from that porch was there.”

The trial court’s doubt is supported in the record by the testimony of the two defendants and their two employees that Mrs. Dimaggio was not on the porch in the first place.

Plaintiff attaches much significance to the fact that defendant Billy Wright pleaded guilty in Municipal Court in the City of New Orleans to disturbing the peace by fighting, established by the introduction in evidence of a certified copy of that court’s record. He complains that the trial court did not give sufficient weight to that evidence and he argues the doctrine of falsus in uno falsus in omnibus based on the fact that before this certified copy of guilty plea and conviction was introduced Horace and Billy had both unequivocally denied that Billy had pleaded guilty and been convicted of this crime in the Municipal Court.

At the outset it must be observed that the offense for which Billy was convicted on his guilty plea was not an assault but simply disturbing the peace by fighting. There is no question but that he and plaintiff were guilty of this offense.

As to the doctrine of falsus in uno, as said in Mackbee v. Ford Motor Company, 327 So.2d 654, writ refused, (1976), the application of this rule is a matter within the discretion of the trial judge who may or may not reject the testimony of a lying witness in its entirety if the circumstances of the case indicate the false statement was on relevant or pertinent matters. Under all the circumstances of this case, we cannot say that the trial judge abused his discretion in accepting the testimony of defendants on the essentials even though they did lie about this one element of the case.

The most troublesome specification of error presented by plaintiff is based on the trial court’s failure to complete the trial by allowing presentation of medical evidence. At the beginning of the trial plaintiff’s counsel stated that the liability aspect of the case would be tried at that time, reserving the right to present medical testimony later. It was agreed by all counsel and the court that plaintiff would subsequently take the depositions of a dentist, Dr. Leg-gio, a neurosurgeon, Dr. Corales, and another physician, Dr. Dean. However, at the conclusion of the trial the trial judge made the following observation:

“With this determination of the facts and circumstances surrounding this cause of action, in all fairness to the parties concerned, the Court thinks it would be folly and unwise for the plaintiff to incur more and additional expense in this litigation by getting into evidence information surrounding the medical aspect of this case. “On the merits, plaintiff’s evidence does not preponderate to the degree required, does not fully rebut the testimony of all of the witnesses which are conflicting on both sides, and does not prevail; and to incur the added expense, to incur more delays and to incur the time and the effort and the expense of counsel in the presentation of further evidence to the Court along the lines of the medical aspects of the case seems to be a needless point of expense and the Court will, therefore, rescind all previous comments and orders rendered in these premises relative to a continuation of this case for the presentation of further evidence or as an open case. The Court rescinds those orders and at this point renders judgment in favor of the Defendant, dismissing the plaintiff’s case.”

While plaintiff’s medical evidence was originally said to be pertinent only to the question of quantum of damages, in brief to this court he argues that it would also be pertinent on the question of liability, in that it would demonstrate the seriousness of the injuries as opposed to the characterization of those injuries as minor cuts and bruises by defendants’ witnesses. From our examination of the evidence and the testimony, however, it does not appear that this evidence would have led the trial court to any other conclusion with respect to liability.

After the incident plaintiff did seek medical treatment in the emergency room of a local hospital. The hospital record was introduced in evidence and it contains as the final diagnosis “multiple minor contusions.” The physical findings at the hospital are as follows: “Nose is straight and not bleeding. There are no lumps on scalp. There is contusion and swelling of both upper and lower lip — teeth intact. Several superficial abrasions and brush burns of both elbows and both knees. Has full use and function of all extremities.” This contradicts the testimony of plaintiff, his father who came on the scene after the fight, and Mrs. Dimaggio, to the effect that plaintiff’s nose was bleeding, and it does not lend any support to plaintiff’s testimony that Horace Wright struck him with a hard blow to the head.

Medical bills introduced by plaintiff show that he consulted Dr. Corales for the first time on March 26,1975, had brain scans and EEG’s at a local hospital on the advice of Dr. Corales on April 8, 1975, had X-rays taken on March 26, 1975, saw Dr. Dean on July 1, 1975, and had the dental work done in February and March in 1975. Plaintiff testified that he had headaches after the incident which prompted him to see Dr. Corales.

The trial judge must have inferred that there was no way plaintiff could relate these medical expenses to the incident in question. They were all incurred two years or more after the incident and any relationship would necessarily depend upon the subjective complaints and attendant credibility of plaintiff, which the trial judge had already rejected. Under these circumstances we cannot see how the introduction of this medical testimony would have changed the outcome of the case with respect to liability.

There can be no doubt but the procedure employed by the trial court, however, in cutting plaintiff off from introducing his evidence with respect to quantum is inconsistent with the jurisprudence and our entire concept of appellate review of facts as required by Art. 5, § 10(B) of the Louisiana Constitution of 1974.

In Danos v. Central National Insurance Co. of Omaha, 211 So.2d 106 (La.App. 1st Cir. 1968), the case was tried on liability alone, plaintiff’s suit was dismissed and appeal was taken. The court observed that “[t]he law reprobates piece-meal trial of cases.” In Jeansonne v. Willie, 188 So.2d 170 (La.App. 4th Cir. 1966) where all parties agreed that the case would be tried on liability alone, this court annulled and set aside the judgment remanding the case to the trial court for a full trial on quantum. The court said:

“Whereas C.C.P. art. 2164 authorizes us to render any judgment which is just, legal, and proper upon the record on appeal, we think the ends of justice and orderly procedure dictate that we annul and set aside those portions of the judgment complained of by appellants, and that the matter be remanded to the lower court to be there fully tried, the interested parties to adduce all and whatever evidence they deem sufficient and proper bearing on the question of quantum or any other untried issue in the case, after which the trial judge is directed to render judgment anew. If an appeal is then taken from that judgment this court will be in a position to properly dispose of the case with one judgment.”

Under our constitution a litigant is entitled to an appeal on the facts and the law. No matter how strongly the trial court may feel about the result on liability plaintiff is entitled to have a review of that case made by the Court of Appeal, and to permit a trial judge to hear the evidence on liability and then take no further evidence on the theory that Court of Appeal will doubtless affirm such judgment is to make the appellate process an exercise in futility. We know of no precedent or authority for such a procedure and ordinarily we would not hesitate to take the same action as we took in the case of Jeansonne v. Willie.

However, in the instant case, because there is some medical evidence in the form of the hospital record and the medical bills as well as the testimony of plaintiff and his father as to how the medical examination might be related to the incident sued on, we have concluded that it is far more probable than not that this medical evidence would have no probative value in this particular case. Furthermore, the result reached in the Daños case seems to be the better result to reach in this case. There, after the court criticized the procedure employed by the trial court in trying the matter on liability alone the court said:

“We are proceeding with disposition of this case because the evidence was so strong there was no negligence on the part of the driver and that the finding by the District Judge was correct.”

Likewise, in this case, considering all the circumstances and guidelines for appellate review set out in Canter v. Koehring, La., 283 So.2d 716 (1973) we have concluded that the judgment of the trial court should be affirmed.

AFFIRMED.

GULOTTA, J., concurs with written reasons.

GULOTTA, Judge,

concurring.

I concur with the result.

From the trial judge’s point of view, I can readily visualize the futility of taking testimony relating to quantum when evidence on liability is totally lacking. It is clear also from the record in the instant case that the trial judge was interested in saving the plaintiff the wasted expense which would, of necessity, be incurred in obtaining useless medical evidence.

However, in such a case, it might behoove a trial judge to permit the evidence to be offered by way of a proffer, particularly in view of the jurisprudence which, in the interest of judicial economy, directs the appellate court to consider and dispose of the matter on the record (when the record is complete) rather than to remand the case for further proceedings in the trial court.

      . Plaintiff did not consult any of the doctors whose testimony he sought to solicit until more than two years after the accident and more than one year after the filing of this suit. It necessarily follows that these experts could not have testified as to the plaintiffs physical appearance on the date of the incident.

      . Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).