author: SUMMERS, Justice.

text:
    Allan Lee BOWIE v. DEPARTMENT OF POLICE.
    No. 56083.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      James R. Sutterfield, Sutterfield & Vickery, New Orleans, for plaintiff-applicant.
    Ralph D. Dwyer, Jr., Many, Lo Coco & Dwyer, New Orleans, for Dept, of Police.
   SUMMERS, Justice.

Police Officer Allan Lee Bowie was suspended from the Department of Police of the City of New Orleans on November 14, 1973 and dismissed on December 7, 1973 for neglect of duty, disobedience of orders and failure to maintain standards of the service. The action was principally based upon a finding that Bowie had possession of marijuana in his apartment and had smoked marijuana in the presence of others.

He appealed this disciplinary action to the Civil Service Commission under rules of City Civil Service, asserting that the suspension was unfair, oppressive, and a violation of regulations of the City Police Department, as well as the Constitutions of the United States and the State of Louisiana. The dismissal, he contends, is based upon unconstitutional grounds and is without legal cause.

At Bowie's request, the matter was assigned by the Civil Service Commission to a hearing examiner pursuant to Article XIV, Section 15(0) (6) of the Louisiana Constitution. The testimony presented at the hearing was transcribed, and all documentary evidence was reviewed by each member of the Civil Service Commission.

Finding that Bowie did not sustain the burden of proof imposed upon him by law, La.Const. Art. XIV j[ 15(N) (1) (a), the Commission dismissed the appeal. Bowie then appealed to the Court of Appeal, Fourth Circuit, assigning thirteen errors in the Commission ruling. He designated the entire record, including the transcript all testimony, for incorporation in the record on appeal, and filed an appeal bond in the amount of $100 in favor of the Civil Service Commission as required by Section 4 of Rule 16 of the Uniform Rules of the Court of Appeal.

Bowie has objected to payment of $1.55 per page, or $234.90, a charge made by the Department of Civil Service for copying 158 pages, that portion of the record consisting of the transcript of testimony. This is the sum paid by the Commission to the reporter who recorded and transcribed the testimony heard before the Hearing Examiner. By its own rules, the Commission passes this expense along to the litigant who pursues further appellate action from the Commission’s ruling. The pertinent Commission rule, Section 6.1, prescribes:

“On appeals from the Civil Service Commission, the Uniform Rules of the Court of Appeal, Fourth Circuit, shall generally apply. The application for appeal, assignment of errors, bond or other required documents, including, without limitation thereto, a written designation, if any, of the portions of the record to be transcribed, shall be submitted to the Director of Personnel of the Civil Service Department in triplicate with a copy thereof being furnished each opposing party and the official reporter. The cost of the record as prepared by the Civil Service Department, exclusive of the transcript of testimony, shall be a minimum of $25.00. In addition thereto, there shall be a reasonable charge per page for any reproduction necessary. The costs shall be made payable to the Director of Personnel of the Department of Civil Service and must be received at least three days before the return date. The party requiring the transcript of testimony or any part thereof shall, at his own expense, arrange for this with the official Civil Service Commission reporter and payment made to the reporter within sixty (60) days of filing the application for appeal, unless such time is extended by the Commission.”

When confronted with this charge of $234.90, Bowie filed a motion before the Commission to rescind the rule requiring him to pay for copying that portion of the record consisting of the transcript of testimony taken before the Hearing Examiner. He alleges that the rule is unconstitutional, violative of the Rules of the Supreme Court of Louisiana and of the Uniform Rules of the Courts of Appeal of Louisiana, and, as such, deprives him of his property without due process of law.

The Commission found no compelling reason to rescind its rule. It was of the opinion that the city fisc should not subsidize Bowie’s appeal. Its opinion referred to the practice before the Commission which does not require that testimony be transcribed when a hearing is held before the Commission, for, in that case, the Commissioners hear the testimony in person. If a transcript is required for an appeal from a ruling as a result of a hearing held before the Commission, the appellant must bear the cost of the transcript in full. However, when a hearing is held before a Hearing Examiner, the testimony is transcribed on order of the Commission at its expense. This transcribed testimony and the other evidence introduced at the hearing are then reviewed by the Commissioners and form the basis for their ruling. Should an appeal from the Commission ruling require the transcribed testimony, it is the Commission’s practice to require appellant to reimburse it for the cost of the transcribed testimony or to obtain a transcript from the official reporter as required by the rule.

The Commission was of the opinion that if it were to rescind the charge for the transcript of the testimony before the Hearing Examiner, then, assuredly all litigants would request a hearing before the Hearing Examiner because of the obvious saving involved in such a choice in the event of an appeal.

Rescinding the rule would have the further effect of encouraging the more time-consuming procedure involved in a hearing before the Examiner. To require those appealing from hearings before the Commissioner to pay for the transcribed testimony, and not to • require the same of those appealing from hearings before an examiner, would result in an inequitable, discriminatory practice the Commission would not approve.

For these reasons, the Commission was of the opinion the cost of the transcribed testimony heard by the Examiner must be paid by appellant, despite the fact that the Commission had already paid the reporter. This was, in its opinion, in keeping with the practice when appeals were taken from hearings before the Commission itself.

When the Commission denied the motion to rescind the rule, Bowie applied to the Court of Appeal, Fourth Circuit, for writs of review. The Court of Appeal granted review but found that no constitutional violation of Bowie’s rights resulted from the application of the Commission’s rule. In the reasons assigned for denying the writ application, the Fourth Circuit concluded :

“Had the Commission’s complained of rule made a requirement more onerous (either procedurally or financially) than that which is spelled out in Section 6.1, we would hold otherwise. But here the applicant is being charged at the same rate that he would have been obliged to pay to complete the record if the original testimony had been taken before the en banc Commission instead of before a Hearing Examiner. He is simply paying it to the Commission who has already paid the reporter.”

Certiorari was granted in this Court, 310 So.2d 848, to resolve two issues presented by Bowie’s application for writs: 1) Can the Civil Service Commission tax the costs of recording and transcribing the testimony taken before the Hearing Examiner, and upon which it based its decision, to the employee-appellant (Bowie); and 2) can the Commission charge an amount in excess of that allowed by Rule 1, Section 10 of the Uniform Rules for Courts of Appeal for the preparation of the record on appeal.

I.

In asserting that the Commission does not have the right to tax him for the costs of recording and transcribing the testimony taken before the Hearing Examiner when preparing the record for appeal to the Fourth Circuit, Bowie contends the action is contrary to Article XIV, Section 15(0)(8) of the Louisiana Constitution of 1921 which provides:

“Costs. The appropriate Commission may, in its discretion, order the costs of any hearing on appeal, or any portion of such costs, including the cost of recording and transcribing testimony, to be paid by or charged to the department or organization unit against whose action the appeal is taken or hearing granted.”

In effect, Bowie’s contention is that Article XIV, Section 15(0)(6) of the Constitution requires that

“If a referee is appointed ... he . . . shall cause a true transcript of the testimony to be recorded. Such transcript, together with any documentary evidence that may be introduced, shall be submitted to the Commission, which shall render its opinion on the basis of such evidence, and its opinion as thus rendered shall be final.”

Bowie argues that these charges for a transcript are charges imposed by law on the Commission, and the Commission may not impose them upon parties appealing from Commission rulings. The only other authority the Commission has, according to Bowie, is to order the-costs of any hearing or appeal, or any portion of such costs, including the cost of recording and transcribing testimony, “to be paid by or charged to the department or organization unit against whose action the appeal is taken or hearing granted,” as prescribed by Article XIV, Section 15(0) (8) of the Constitution.

In support of this contention, Bowie relies upon the elementary legal principle that in the interpretation and construction of constitutional and statutory provisions where a grant of power is made and the mode of its exercise is set forth, such a mode is exclusive of all others. Ladnier v. Moliere, 230 La. 784, 89 So.2d 301 (1956); 1 Cooley, Constitutional Limitations, p. 176 (8th ed.1927).

The principle relied upon to sustain Bowie’s argument is inapplicable here. The language of Section 15(0) (8) is permissive by its terms. It is neither exclusive of any other method of assessing costs, nor is it mandatory in meaning. For these reasons the Commission is free to otherwise regulate assessment of costs.

As we read the Section it is an authorization to the Commission, in its discretion, to impose costs on agencies from which cases emanate when these cases unduly tax the Commission budget. Further, imposition of costs against the- agency from which the appeal is taken has the effect of deterring the agency from abuses of its discretionary authority, or from imposing disciplinary sanctions without justification under the law or facts. According to the Commission, “the obvious intent of such authority (Section 15[0][8]) was to act as a restraint on an Appointing Authority so as to discourage capricious disciplinary action against an employee.”

In its context this section is an authorization to impose costs on an agency from which appeals are taken to the Commission; appeals from the Commission to the courts of appeal are not contemplated by • this Section.

II.

Finding that Section 15(0)(8) does not limit the Commission to the assessment of the costs of this transcript to the agency from which the appeal came, it is now necessary to determine whether the assessment of the transcript of testimony costs against Bowie offends Rule 1, Section 10, of the Uniform Rules of Courts of Appeal. The Rule provides:

“In addition . to the filing fee of twenty-five dollars ($25) due the clerk of this court as prescribed by La.R.S. 13:352(1), and in amplification of the provisions of La.R.S. 13:4445, it is -recommended, pending fixation of fees by the Legislature, that the clerk of the court from which the appeal originates make the following charges in the instance of each appeal:
(a) For preparing' the first volume, both original and duplicate, including the typing and all minutes, indexing, paginating, furnishing covers, etc., not more than twenty-five dollars ($25) ;
(b) For so preparing the second volume, not more than ten dollars ($10);
(c) For so preparing each subsequent volume, not more than five dollars ($5) and
(d) For transporting the prepared record of appeal to • the appellate court, actual cost.”

Despite the fact that he relies upon the rules of the Courts of Appeal, Bowie suggests in brief to this Court that the Constitution explicitly provides that appeals from decisions of the Civil Service Commission “ . . . shall be granted to the Supreme Court of Louisiana”. La. Const. Art. XIV, ¶ 15(0) (1) (1921) Therefore, only the Supreme Court can entertain this appeal, inferring that the Court of Appeal’s adjudication was improper. The suggestion is without merit. As the brief also points out, Article VII, Section 10, of the Constitution was amended on November 4, 1958 and became effective July 1, 1960 (Act 561 of 1958). By this amendment the appellate jurisdiction of the Supreme Court was limited in some respects, one being that appeals formerly permitted from the Civil Service Commission were eliminated. Though not explicitly, this amendment also amended Section 15(0) (1) by implication, so that after the effective date of the amendment to Article VII, Section 10, Section 15(0) (1) should be read to confer appellate jurisdiction on the Courts of Appeal in lieu of the Supreme Court, the Courts of Appeal being the only other appellate court in which the constitutional right to appeal from decisions of the Civil Service Commission can be properly exercised. La.Const. Art. VII, ¶29 (1921). See Bradford v. Department of Hospitals, 255 La. 888, 233 So.2d 553 (1970). We reaffirm the proposition that appellate jurisdiction in these Civil Service cases is in. the Courts of Appeal.

Bowie suggests also that, even if the amendment confers appellate jurisdiction on the Courts of Appeal and not the Supreme Court in these cases, the Supreme Court has not been divested of authority to promulgate rules for Civil Service appeals. He contends the authority is conferred in the Constitution, Section 15(0) (1), in these words: “The Supreme Court shall promulgate rules of procedure to be followed in the taking and lodging of such appeals.” In our opinion the argument is not .well taken; the constitutional transfer of appellate jurisdiction from the Supreme Court to the Courts of Appeal carried with it the concomitant right to promulgate rules for those appeals.

Undoubtedly, in order to implement the constitutional change, by their Rule XVI, amended in 1973, the Courts of Appeal established requirements for appeals from final decisions of the Civil Service Commission, and ordained thereby that all other rules and laws regulating appeals, not inconsistent with Rule XVI, shall be applicable to appeals taken under Article XIV, Section 15, of the Constitution. Therefore, the rules promulgated by the Courts of Appeal which are relevant and pertinent to Civil Service appeals are the rules which are applicable here.

With this understanding, we return to a consideration of the contention that Section 6.1 of the Civil Service Commission rules, assessing the costs of transcribing the testimony against the appellant, violates Rule 1, Section 10 of the Uniform Rules of the Courts of Appeal by imposing charges which the Uniform Rules do not authorize.

The transcript of oral testimony is clearly a part of the record to be prepared for the appeal. Uniform Rules— Courts of Appeal, Rule 1, †[ 3(h). But we do not understand that Rule I, Section 10, quoted above, governs the payment of the costs of transcribing the oral testimony. This is a matter which properly pertains to the power and authority vested in the Civil Service Commission charged with regulating the hearing in the first instance. It is then that the testimony is recorded and the evidence received which constitutes the record. It could not be said, for instance, that the Courts of Appeal could promulgate rules for the conduct of these hearings. The authority and power of the Courts of Appeal in the matter is limited to promulgating “rules of procedure to be followed in the taking and lodging of such appeals.” La.Const. Art. XIV, ¶[ IS. As a matter of fact, this is all the rules of the Courts of Appeal purport to do. No authority is found which would permit Courts of Appeal to prescribe rules for hearings before the Commission, and the Courts of Appeal do not purport to exercise such authority.

Because the rules of the Courts of Appeal can only regulate procedure for “taking and lodging such appeals” it cannot be said that their rules may prescribe the initial costs incurred in connection with hearings before the Civil Service Commission or before an Examiner appointed by the Commission. The Commission is empowered by the Constitution and vested with “the exclusive right to hear and decide all appeals and the legality of all removal and disciplinary cases” in the first instance. La.Const. Art. XIV, ¶15(0)(1).

As a necessary and auxiliary right to this authority the Commission has the right to promulgate rules for the conduct and regulation of these hearings. Included in this right is the right to regulate the assessment of costs when not otherwise regulated by the Constitution or Acts of the Legislature. This right is recognized and implemented in part by Section 15(0) (8) authorizing the Commission, in its discretion, to “order the costs of any hearing or appeal, or any portion of such costs, including the cost of recording and transcribing testimony, to be paid by or charged to the department or organization unit against whose action the appeal is taken or hearing granted.” Because other matters involving the assessment of costs are not regulated by the Constitution or statute, further regulation is dependent upon such rules as the Commission has prescribed.

From the foregoing it is necessary to conclude that the Commission’s Section 6.1 rule does not violate Rule I, Section 10 of the Uniform Rules of the Courts of Appeal.

Nothing in the Commission Section 6.1 rule regulating the practice of assessing costs for transcribing the testimony against Bowie on his appeal to the Fourth Circuit is unfair or discriminatory as he contends. To the contrary, to accede to Bowie’s contention and not assess these costs when an appeal is taken from a commission ruling based upon a hearing before an Examiner, on one hand, and to assess these costs against a party appealing from a hearing held before the Commission, on the other hand, would bring about an unfair and unacceptable discriminatory practice.

Nor is this assessment of cost for transcribing testimony unduly burdensome to the appellant. The practice is nothing more than the requirement imposed in most appeals from state or federal trial courts and administrative tribunals: appellants are required, in most instances, to either advance costs or to furnish a bond for costs as a condition to the right of appeal. Charging the unsuccessful litigant with costs also acts to minimize frivolous or unfounded litigation and serves as a deterrent to calling unnecessary witnesses who prolong the hearings and add to the expense of these adjudications.

For the reasons assigned, the ruling of the Commission and the judgment of the Court of Appeal are affirmed.

DIXON and CALOGERO, JJ., dissented.

      . “(0)(1). Appeals; jurisdiction; decision; judicial review. There is vested in the State Civil Service Commission and in the appropriate Civil Service Commissions for the several cities respectively the exclusive right'to hear and decide all appeals and the legality of all removal and disciplinary eases. The decision of the appropriate Civil Service Commission shall be final on the facts, but an appeal shall be granted to the Supreme Court of Louisiana on any question of law if application to the Commission is made within thirty (30) days after the Commission’s decision becomes final. The Supreme Court shall promulgate rules of procedure to be followed in the taking and lodging of such appeals.”


source: Caselaw Access Project

author: DIXON, Justice

license: Public Domain

text:
    STATE of Louisiana v. Sidney JEANSONNE.
    No. 57058.
    Supreme Court of Louisiana.
    Nov. 21, 1975.
   In re: Sidney Jeansonne applying for Writs of Certiorari, Prohibition and Mandamus.

Writ denied: Under the transcript of the evidence, we cannot say there is no evidence of intentional non-support.

DIXON, J., dissents with reasons.

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

DIXON, Justice

(dissenting).

I respectfully dissent from the denial.

This is an application for writs after the defendant was prosecuted under R.S. 14:74, and sentenced, purportedly, under R.S. 14:75.

A bill of information was filed in the 18th Judicial District Court on June 11, 1975 charging that Jeansonne “on the 1 day of Jan in the year of our Lord Nineteen Hundred and Seventy five . . . did intentionally fail to support his minor children in necessitous circumstances

After trial on July 9, 1975 defendant moved for a directed verdict, which was overruled.

The only evidence by the prosecution which concerned January in any way was that Mr. and Mrs. Jeansonne separated in the month of January, 1975. Mrs. Jean-sonne filed suit for separation in February of 1975. No part of the separation proceedings was introduced in this case. Mrs. Jeansonne testified that she left her husband, and that he “agreed with the judge” to pay her $175.00 on the 1st and $175.00 on the 15th for the support of the minor children, Larry sixteen, Ricky thirteen and Cynthia nine.

Apparently, from the testimony of Mrs. Jeansonne, when she left her husband, the children stayed with him.

At the time of the trial, Mrs. Jeansonne was back in the family home. She testified that she had been awarded the custody of the children in the separation suit in April of 1975.

Mrs. Jeansonne is employed and makes more than $80.00 a week. She testified that in February her husband gave her the entire income tax refund check for $650.00. She identified a check of March 29 for $50.00 which she had received. She testified her husband paid her $175.00 on May 1st, $150.00 on June 6th and $175.00 on June 8th. At some point she received a check for a “rebate” for $200.00.

At the time of the trial, Mr. Jeansonne was behind only one payment in the amount of $175.00.

Although the date does not appear in the record, Mr. Jeansonne bought an automobile for Larry. (He also bought one for his married son, Randy). Mrs. Jeansonne, at the time of the trial, drove her husband’s truck. She testified that she “swapped titles” with her husband in a transaction involving the truck and a boat, all community property.

Mrs. Jeansonne testified that she was satisfied with the amount she was to receive from her husband, but was dissatisfied with the regularity of the payments. There is no single word of any need or want by Mrs. Jeansonne for herself or for her children.

If this were a contempt rule for nonpayment of alimony, the judge would be justified in applying sanctions to require the regular payment of the alimony. However, the record is not definite that a judgment condemning the defendant to pay alimony has been entered.

The only finding ever made by the trial judge was that, “Well, it’s still a payment behind. She has the right to expect him to make the payments regularly.”

There is no evidence here that the defendant did not provide for the support of his children; further, there is no evidence that the children were destitute or in necessitous circumstances. Proof of necessitous circumstances is essential before there can be a conviction under R.S. 14:74. State v. Breaux, 227 La. 417, 79 So.2d 502 (1955).

We should not approve the use of R.S. 14:74 by district attorneys as a substitute for contempt proceedings to regulate alimony judgments.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Gary TYLER.
    No. 57093.
    Supreme Court of Louisiana.
    Nov. 10, 1975.
   SANDERS, Chief Justice.

Because of the exigencies of this case, requiring a prompt ruling by this Court under its supervisory jurisdiction, we hereby hand down the following decree;

The ruling of the Twenty-Ninth Judicial District Court for the Parish of St. Charles, suppressing as evidence at the trial certain gloves and the laboratory tests pertaining to said gloves, is hereby reversed and set aside.

It is further ordered, adjudged, and decreed that, subject to the other defense objections which may hereafter be interposed, the gloves and results of the laboratory tests are admissible in evidence, reserving to the trial judge the right, on a proper defense motion, to grant the defendant the opportunity to make an independent test of the gloves.

DIXON, J., dissents.


author: TATE, Justice.

text:
    STATE of Louisiana v. Charles FONT.
    No. 57136.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Charles Font applying for Writ of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. On the facts alleged, there is no error of law in the holding at the preliminary hearing that there was sufficient evidence to establish probable cause.

TATE, Justice.

I respectfully dissent. The state did not prove, for instance, that the money allegedly stolen from the non-testifymg victim was actually found on the accused’s person after the alleged incident. There was insufficient “hard” (i. e. non-hearsay) evidence to justify a holding of probable cause to hold the accused, in this preliminary hearing mandated by our Louisiana Constitution.

DIXON, J., concurs in the denial because there is no prohibition against the use of hearsay evidence at a preliminary hearing.


author: TATE, J.,

text:
    STATE of Louisiana v. Wilbert MATTHEWS.
    No. 57144.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
   In re: Wilbert Matthews applying for Writ of Mandamus.

Writ denied. In view of the fact that applicant’s application for rehearing in connection with our affirmation of his conviction has this date been denied. See State v. Matthews, #56,460 on docket of this court. This writ application is moot. No purpose would be served by allowing a supplementation of the record.

TATE, J.,

concurs in the denial. The record shows that, although a motion to suppress the physical evidence may have been filed, Tr. 40 and pp. 101, 105-108 of trial Docket #56,140, it is not part of the record nor was any Bill of Exceptions filed as to the denial of this motion, nor was any objection to evidence made on the basis of an unconstitutional search and seizure of it. See Tr. 130-31. The majority correctly holds that the relief sought for is moot.


text:
    STATE of Louisiana, Appellee, v. Stephen BERRY, Appellant.
    No. 56734.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      James J. Gleason, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant Berry was convicted of the April, 1973 murder of Jo Ellen Smith, La.R.S. 14:30 (1950), and sentenced to life imprisonment at hard labor.

On his appeal, he presents fourteen assignments of error. The most substantial issues relate to the defendant’s plea of insanity at the time of the offense (Assignment 14), to the admission of evidence in connection therewith in alleged violations of the defendant’s physician-patient privilege (Assignments 11-13), and to the admission of evidence in alleged violation of the defendant’s clergyman-penitent privilege (Assignment 7).

Plea of Insanity (Assignment No. 14)

The defendant pleaded not guilty and not guilty by reason of insanity. La. C.Cr.P. art. 552. This plea tendered for the jury’s determination the accused’s defense of insanity at the time of the offense. La.C.Cr.P. art. 816.

The present assignment of error was raised by the defendant’s objection to the trial court’s charge to the jury.

In accordance with La.R.S. 14:14 and La.C.Cr.P. art. 652, the trial court instructed the jury that the defendant had the burden of proving his insanity and that an individual is not relieved of responsibility for his acts unless he is determined to be incapable of distinguishing between right and wrong.

The defense contends (a) that the jury should have been instructed that a mental defect resulting in an irresistible impulse also constitutes insanity as a matter of law and (b) that the prosecutor should have the burden of proving sanity in a case in which insanity is urged as a defense.

(a)

As to the first contention, La.R.S. 14:14 provides that, if the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility. This is a codification of the well known test in M’Naughten’s Case, 1 Car. & K. 130, 10 Clark & F 200, 8 Eng. Repring. 178 (1843). See Reporter’s Comment, Article 14 of the Louisiana Criminal Code, originally enacted by Act 43 of 1942.

In State v. Plaisance, 252 La. 212, 210 So.2d 323 (1968), the accused likewise contended that the M’Naughten rule is scientifically and legally inadequate. In rejecting this contention, we stated, 210 So.2d 326-27:

“The trial judge under the express provisions of the Code of Criminal Procedure must charge the jury with the applicable law of the case, i. e., ‘If the circumstances indicated that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.’ R.S. 14:14. Counsel for defendant’s contention that this law is outmoded and archaic and should be changed to the test of legal sanity prevailing in other jurisdictions referred to as the Durham Rule or that of irresistible impulse, is a matter that addresses itself to the legislature.”

At 21 Am.Jur.2d, Criminal Law, Section 33, pp. 118-18, it is noted:

“The M’Naughten test has long been under attack on the ground that it adopts and enforces as a matter of law outmoded and erroneous psychological theories, and that it tends to limit or distort expert psychiatric testimony. The test, however, is not without its defenders. And so far no alternative to it has achieved general acceptance. Some courts which have indicated dissatisfaction or doubt with regard to M’Naughten have nevertheless refused to discard it, because of their dissatisfaction with suggested alternatives, or because they have felt that if such a change were to be made, it should be made by the legislature.”

Our legislature has by La.R.S. 14:14 expressly adopted the M’Naughten test of insanity. We are cited to no authority by reason of which such adoption is beyond its power or offends constitutional guarantees. Whether wise or unwise, this legislative choice does not admit of judicial substitution of another test allegedly more scientifically based on modern psychiatric knowledge.

(b)

The second contention made by the defendant is that, although in accordance with La.C.Cr.P. art. 652, the trial court erred in instructing the jury that the accused bore the burden of proving his insanity.

The defendant essentially contends that this statutorily-based charge violates the constitutional presumption of innocence to which those accused of a crime before our courts are entitled. La.Const. of 1974, Article I, Section 16. He further contends it violates federal due process requirements that the state must prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed. 2d 508 (1975).

As the concurring opinion to Mul-laney notes, 95 S.Ct. 1892-93, the same constitutional and historical reasons do not necessarily apply to a requirement that an accused bear the burden of proving his insanity at the time of the offense. Thus, where the jury is also instructed that the state must prove every element of the crime beyond a reasonable doubt, including (in this case) premeditation, a statute requiring an accused to bear the burden of disproving his sanity (presumed in all humans) does not violate due process. See Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952).

Despite scholarly criticism that the requirement does infringe upon the presumption of innocence, see Comment, 30 La.L. Rev. 117 (1969) for summary, the contention has not been accepted by the United States Supreme Court, Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), nor in most jurisdictions in which it has been raised. See Annotation, Insanity-Proof, 17 A.L.R.3d 146 (1968).

The Louisiana decisions likewise have consistently upheld the defendant’s burden of proving insanity, despite the burden of the state to prove every essential element of the crime charged. They are essentially based upon a perceived distinction between: on the one hand, criminal intent (the perception that certain consequences would flow from the accused’s act), which is an essential element of the crime; and, on the other hand, mental incapacity (the appreciation of the wrongness of the conduct), which is a limited affirmative defense permitted to exculpate an accused from criminal liability for his wrongful acts committed with criminal intent. See analysis in Note, 20 La.L.Rev. 749 (1960). The defense is so limited and required to be affirmatively proved because of the presumption of sanity of human beings, a presumption based in part on the permissible societal value of imposing usual personal responsibility on individuals for their acts.

We are unwilling to accept the defendant’s contention and therefore find no reversible merit in this assignment.

Alleged Violation of the Defendant’s Physician-Patient Privilege (Assignments 11-13)

In rebuttal to the defendant’s expert testimony as to his insanity (tending to show he was a schizophrenic who could not distinguish between right and wrong), the state tendered certain medical evidence. It consisted of the testimony of two psychiatrists, who had been appointed to a lunacy commission, and also of the testimony of a parish prison psychiatrist who had briefly examined the defendant before and after the present offense.

The defendant objected to the testimony of one of the court-appointed psychiatrists, insofar as (in making his diagnosis) he had without the consent of the accused referred to the accused’s parish prison medical records and to Charity Hospital records. Assignment 11. The defendant also objected to the testimony of the parish prison psychiatrist (whose examination notes were the basis of the parish prison medical reports), on the ground that he had examined the accused without a court order and, consequently it is urged, the medical information he had obtained could not be divulged without the consent of the accused. Assignment 12.

The defendant primarily relies upon the doctor-patient privilege recognized by La.R.S. 15:476, which provides that (except where “[the] physician, under the appointment of the court, and not by a selection of the patient, has made investigation into the patient’s physical or mental condition”) “no” physician is permitted, “unless with his patient’s express consent, to disclose any communication made to him as such physician by or on behalf of his patient, or the result of any investigation made into the patient’s physical or mental condition, or any opinion based upon such investigation, or any information that he may have gotten by reason of his being such physician * * * ”

This privilege, however, may be waived.

La.R.S. 15:478 provides: “The right to exclude the testimony ... is purely personal, and can be set up only by the person in whose favor the right exists. If the right is waived, . . . the physician . . . may be examined and cross-examined to the same extent as any other witness.”

This waiver may be by the express consent of the patient. See La.R.S. 15:476, quoted above. However, the waiver may also result from other circumstances by which the patient impliedly waives his right to claim the privilege. 8 Wigmore on Evidence, Sections 2388-90 (McNaughton Rev. 1961); McCormick on Evidence, Section 103 (2d ed., 1972).

The legislature has not specified the circumstances in which such implied waiver occurs under La.R.S. 15:476, 478, which are applicable to criminal proceedings.

However, in subsequently providing for the physician-patient privilege in civil proceedings, the legislature provided for typical waiver situations. La.R.S. 13:3734 (1968). One is where a party brings a suit to recover for personal injuries and thus places those injuries at issue; by bringing the action, he waives his right to claim the privilege , as to any physicians who have prescribed for or treated him for such injuries.

Analogously, in the present situation, the accused filed a plea of not guilty by reason of insanity at the time of the commission of the offense. In response to his application, a lunacy commission was appointed. La.C.Cr.P. art. 650. He did not withdraw his plea of not guilty by reason of insanity but proceeded to trial of it before the jury. La.Cr.P. art. 651.

Under such circumstances, his tender of the issue of insanity waived his right to claim the doctor-patient privilege—and not only as to the medical reports he voluntarily furnished the examining physicians, and as to the psychiatrist who testified on his behalf.

By tendering his mental condition to the jury, he waived his right to claim the privilege as to other psychiatric medical evidence relevant to determination of the issue, such as (in this instance) prior medical examination and diagnosis as to the mental condition he now claims exonerates him from criminal responsibility. By claiming, the benefits of his plea of insanity, he cannot offer that from the past or present which is favorable to his contention, but at the same time withhold from the jury’s consideration (if the state offers it) that which is unfavorable to his plea. Cf. State v. Genna, 163 La. 701, 715, 112 So. 655 (1927) (syllabus 14).

Of course, such an implied waiver should not be deemed to include testimony as to information obtained by physicians as a result of prior examinations which is irrelevant to the present proceeding or in which the prejudicial effect on the merits outweighs its probative value to the narrow issue of insanity so tendered. In short, the implied waiver we judicially recognize is to be narrowly construed in accordance with its limited purpose.

Here, the court-appointed examining physician used prior medical records as a partial basis for his opinion, State v. Fallon, 290 So.2d 273, 291 (La.1974), while another physician testified as to his own routine mental examinations, conducted in the course of routine prison examination, and his consequent mental diagnosis of the patient as to the mental illness now at issue. Both of these instances are included within the narrowly-construed implied waiver of the privilege resulting from tendering the plea of insanity to the trial jury.

Additionally, the defendant also claims a doctor-patient privilege as to the physical examination made of him by the coroner soon after his arrest. Assignment 13. The coroner’s testimony was apparently introduced to negative defense testimony that the accused had been beaten at the time. The coroner did not testify as to anything other than the results of his physical examination of the accused.

An in-custody physical examination of an accused by a state physician for the limited purpose of making objective findings as to his physical condition is not protected by the doctor-patient privilege:

In the first place, the privilege does not attach unless the patient has consulted the physician for treatment or for diagnosis. 8 Wigmore on Evidence, Section 2382(2) (McNaughton Rev. 1961); McCormick on Evidence, Section 99 (2d ed., 1972). In the second place, the accused was in custody as a result of a lawful arrest, and no constitutional protection is volated by a physical examination incident to a usual custodial arrest and incarceration, nor by introducing into evidence the results thereof. Cf. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

Accordingly, we do not find merit in any of these assignments.

Alleged Violation of the Defendant’s Clergyman-Penitent Privilege (Assignment 7 )

On the evening of the murder, the defendant came to the apartment of a sister of a minister. The minister’s sister, the minister, and a lady friend were there.

The defendant objected to the introduction of the minister’s testimony as to the accused’s admissions at the time. The basis of the objection was that disclosure would violate the clergyman-penitent privilege provided by La.R.S. 15:477: “No clergyman is permitted, without the consent of the person making the communication, to disclose any communication made to him in confidence by one seeking his spiritual advice or consolation * * *

The trial court required the predicate for assertion of the privilege to be heard outside the presence of the jury. After hear.-ing evidence, the court determined that the privilege did not apply.

The evidence was: The defendant came to the apartment to pawn a watch. After the minister’s sister refused to loan him the money, he asked to speak to the minister. He then told the minister that he had gotten the watch from a girl he had killed and needed $8.00 or else he might hurt someone else. (The minister then loaned him $8.00 and took the watch, and subsequently turned it over to the police.)

We are unable to find error in the trial court’s factual appreciation that the primary purpose of this visit was not to seek spiritual advice or consolation, nor in its finding that, in the totality of circumstances presented (including that the communication was made in the presence of two other persons), the communication was not made within the requisite nature of a confidential disclosure for religious purposes of a penitent to a clergyman seeking religious consolation. 8 Wigmore on Evidence, Section 2396 (McNaughton Rev. 1961).

We find no merit to this assignment.

Other Assignments of Erro'r

Assignments 1, 3, 4, 8, and 9 are not argued on this appeal and are deemed abandoned. The remaining assignments do not require extended comment, being governed by well-settled principle of law or presenting no substantial issue of error.

Assignment 2 relates to the trial court’s failure to require the state to produce pre-trial any oral inculpatory statements of the accused in its possession. See State v. Davis, 309 So.2d 335 (La.1974). (The state did furnish the accused with a copy of a written statement by the accused.) In reliance upon past jurisprudence, the trial did not require pre-trial oyer of any oral inculpatory statement. We have held that such a ruling does not entitle a defendant to reversal of a conviction. State v. Major, 318 So.2d 19 (La.1975); State v. Watson, 301 So.2d 653 (La.1974).

Assignments 5 and ó relate to the admission into evidence of the coroner’s report and of the procés verbal of the autopsy of the decedent showing the cause of death, and to the questioning of the assistant coroner as to the conclusions of the pathologist as to the causes of the death (bullet wounds and multiple skull fractures) based upon such documents.

The procés verbal and report are admissible as competent evidence of death, La.C.Cr.P. art. 105, La.R.S. 33:1565, State v. Hayden, 171 La. 495, 131 So. 575 (1930), at least where no confrontation rights are denied by the failure to allow cross-examination of an expert whose opinion is incorporated therein, see California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970). The testimony of the present witness, the assistant coroner who actually pronounced the victim dead at the scene, is also admissible, even though in part based upon the procés verbal of the pathologist. State v. Jones, 320 So.2d 182 (La.1975).

Assignment 10 relates to the failure of the trial court to require Timothy Rudolph to claim before the jury his Fifth Amendment privilege against self-incrimination.

The defendant had subpoenaed Rudolph as a witness. On the state’s motion, the jury was excluded for the court to determine whether Rudolph would be a witness in the case.

Rudolph took the stand, was sworn, and was determined to be competent. Through his counsel, he then asserted his Fifth Amendment privilege against testifying. The trial court ruled that he was entitled to this claim.

The defendant objected to the exclusion of the jury and to the court’s ruling which permitted the witness to claim his Fifth Amendment privilege outside the presence of the jury.

It is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the jury the fact of the claim of privilege. American Bar Association Standards of Criminal Justice, Relating to the Prosecution Function, Standard 5.7(c), and Relating to the Defense Function, Standard 7.-6(c) (1971).

As the commentaries to these standards indicate, claims of privilege are preferably determined outside the presence of the jury, since undue weight may be given by a jury to the claim of privilege and due to the impossibility of cross-examination as to its assertion. (The commentaries also note the impropriety of either counsel arguing any inference from the failure of another to call a witness, if the failure to do so is known to be based on the witness’s claim of privilege.) For similar reasons, the courts have uniformly rejected a defendant’s claim of error based upon the denial of his request that a witness assert his claim of privilege before the jury. See United States v. Lacouture, 495 F.2d 1237 (CA 5, 1974), and decisions therein cited. See also Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963).

Decree

For the reasons assigned, we affirm the conviction and sentence.

Affirmed.

      . In brief to this court, he also relies upon La.R.S. 44:7 (as amended by Act 112 of 1962; the enactment in effect at the time of the trial). This section provides an exemption from the Public Records Act, La.R.S. 44:1 et seq. (1950).
      However, the purpose of the Public Records Act is to provide for immediate public in- . spection of public records, La.R.S. 44:31-33, not to create a privilege exempting them from production for court purposes. Cf. State v. Babin, La., 319 So.2d 367, 375 (1975). Further, the 1966 version of 44:7 in subsection B expressly recognized that medical records could be “exhibited or copied by or for persons legitimately and properly interested in the disease, mental or physical, or in the condition of patients.”
      The cited statutory provision is not relevant to determination of the present issue.


text:
    STATE of Louisiana v. Clyde CAIN.
    No. 57106.
    Supreme Court of Louisiana.
    Dec. 22, 1975.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Ralph Whalen, Asst. Dist. Attys., for plaintiff-appellant.
    John Unsworth, New Orleans, Mary Olive Pierson, McKernan, Beychok, Cooper, Screen & Pierson, Baton Rouge, for defendant-appellee.
   SUMMERS, Justice.

Donald Ruiz and William Moore were murdered on November 21, 1973. The Orleans Parish grand jury returned an indictment charging Clyde Cain and William Burman with the first degree murder of both Ruiz and Moore.

Although indicted for both murders, Cain and Burman were tried oh October 23, 1974 solely for the murder of Ruiz. The jury returned a general verdict of not guilty, acquitting the defendants of the murder of Ruiz.

Subsequently, on October 25, 1974, the District Attorney for the Parish of Orleans moved to dismiss or nolle prosequi the indictment charging the defendants with the murder of Moore. The motion was granted by the trial judge. The matter was again presented to the grand jury and Cain was indicted on October 21, 1975 for the murder of Moore. (Burman is dead).

Defendant Cain, through counsel, then filed a motion to quash the indictment alleging that he had been tried and acquitted of the murder of Ruiz on October 24, 1974. Testimony in that trial, he asserted, was to the effect that both Ruiz and Moore were shot to death at the same time on November 21, 1973, at approximately 4:30 p. m. Therefore, the motion continues, the only controverted issue at the trial was the identity of the alleged murderers, and, it is implied, the verdict of not guilty necessarily rejected the sufficiency and credibility of the State’s evidence on that issue. In fact, the jury’s verdict read, “not guilty due to insufficient evidence.”

So, defendant contends, the doctrine of collateral estoppel prevents the retrial of that question, for the indictment upon which such a trial would be based would bring about a violation of that doctrine. The result would be to subject Cain to double jeopardy contrary to the protection guaranteed by the Fifth Amendment of the United States Constitution.

At the hearing on the motion, the State’s attorney conceded the correctness of the allegations of the motion to quash. All parties' agreed that the State’s main witness testified that he saw two persons enter the house where Ruiz and Moore were murdered, and a short time later both defendants left the house. The next morning the maid found the bodies of Ruiz and Moore in the house.

The trial judge granted the motion to quash, and the State has appealed.

The Fifth Amendment to the Federal Constitution declares: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The concept of double jeopardy embodied in the clause is designed, not only to prohibit double jeopardy, but to prevent double punishment as well, forbidding that an accused be penalized more severely than the law provides, through the device of finding that he has committed several violations of substantive law where only one exists.

On the other hand, the restriction on multiple prosecutions is designed to implement several procedural objectives. One of these is to protect the defendant and the public from the expense of prolonged and unnecessary litigation resulting from retrial of cases already adjudicated. Another is to prevent the use of several proceedings to try questions of law and fact which logically make up but one case. Still another objective is to safeguard the accused from excessive harassment and the stigma of repeated criminal prosecutions; he should not be made to “run the gauntlet” again.

Louisiana, like the United States Supreme Court and most American jurisdictions, has expanded the determination of “same offense” in the jeopardy clause into a “same evidence” test. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Roberts, 152 La. 283, 93 So. 95 (1922). Briefly, so far as relevant here, “the test to be applied to determine whether there are two offenses or only one is whether each provision [i. e., each charge] requires proof of an additional fact which the other does not.” Blockburger v. United States, supra at 304, 52 S.Ct. at 182.

The Fifth Amendment guarantee against double jeopardy, as understood and interpreted by the United States Supreme Court, has been held to be enforceable against the States through the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). This case, therefore, is to be decided upon principles established by the decisions of the United States. Supreme Court.

In 1916 Mr. Justice Holmes delivered the opinion of the Court in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161, and announced for the first time that the doctrine of collateral estoppel then in use in civil litigation was applicable to federal criminal prosecutions. It was his opinion that the doctrine represented a fundamental principle of justice in the civil law which was not done away with by the Fifth Amendment.

Although collateral estoppel then became an integral part of federal criminal law, it was not elevated to the dimension of a federal constitutional right binding upon the States until 1970 by the decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. There “collateral estoppel” was said to be an

“ . . . awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties.”

In Ashe v. Swenson six men engaged in a poker game were robbed by three or four masked gunmen. Six weeks after having been acquitted in a state trial for the robbery of one of the players, defendant was tried for the robbery of another and convicted. The witnesses in the two trials were for the most part the same and the State’s evidence establishing the facts of the robbery was uncontradicted, but the testimony identifying the defendant as one of the robbers was substantially stronger at the second trial.

The question decided there was whether, after a jury determined by its verdict that a defendant was not one of several robbers, the State could constitutionally hale him before a new jury to litigate that issue again. In holding that the State could not, the Court said,

“Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery ... in the hope that a different jury might find that evidence more convincing.”

The fact that the second trial related to another victim of the same robbery was found to be constitutionally no different. For the name of the victim, in the circumstances of the second case, had no bearing whatever upon the issue of whether the defendant was one of the robbers.

The situation is the same in the case at bar. The fact that this second charge against Cain is for the murder of Moore and not Ruiz has no bearing upon whether he was one of the two men seen at the house when the two murders were committed.

In view of the concession of the State’s attorney that the allegations of the motion to quash were correct, this Court is precluded from reviewing the evidence at Cain’s trial for the murder of Ruiz to ascertain whether the only controverted issue at the trial was the identity of the alleged murders.

However, the State argues that the grand jury originally returned separate indictments for the murder of each victim, Ruiz and Moore, the murder of Ruiz being a separate and distinct offense from the murder of Moore. This was required by Louisiana law, the argument goes, because Article 493 of the Code of Criminal Procedure prohibits charging more than one offense in any indictment. At that stage of the proceeding, according to the State, defendants Cain and Burman were authorized by Article 706 of the Code of Criminal Procedure to move for the consolidation of the two charges into one trial. And, since they had, but did not exercise, the right to consolidation, Cain waived the right under the Fifth and Fourteenth Amendments to claim that the later attempt to prosecute would place him in second jeopardy.

Legions of cases hold, the State argues, there is a waiver of the constitutional protection against double jeopardy when a defendant successfully moves for a mistrial, motion in arrest of judgment, new trial or appeal. While the -exercise of each of these remedies depends upon the affirmative assertion of a right by the defense, the State argues there is no rational basis for reaching a different result when the defendant possesses the only right to obtain joinder of all offenses for trial and elects not to exercise that right. When the defense does not assert the right to joinder, the State contends, it should be deemed to have waived the constitutional guarantee against double jeopardy.

While the State’s contention that the defendant had a right to move for joinder of the two indictments prior to the first trial is arguably well-founded, still that in itself does not mean that defendant waived his right to claim double jeopardy. ' La.Code Crim.Proc. art. 706; La.R.S. 14:30.

In Louisiana’s Constitution double jeopardy is waived by the granting of a motion for a new trial, a motion in arrest of judgment or where a mistrial occurs. A waiver occurs in these instances because the Constitution so declares in explicit terms. No constitutional or statutory authority has been found supporting a waiver under the circumtances of this case, and the State has referred to none.

Since the doctrine of collateral es-toppel has now been superimposed upon the double jeopardy clause of the Fifth Amendment and elevated to the dignity of a constitutional right we cannot presume acquiescence in the loss of such a right. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Such a waiver is not to be lightly inferred, Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264 (1949), and it must be voluntarily and knowingly made. Gibbs v. Burke, 337 U.S. 773, 69 S.Ct. 1247, 93 L.Ed. 1686 (1949). There is no evidence to support any intention to waive double jeopardy here.

Failure to exercise the right to demand a joinder of offenses should not furnish grounds to imply a waiver of double jeopardy for the additional reason that joinder of offenses may often involve serious consequences to the accused. For one thing, the joinder of a multiplicity of offenses charged and the simultaneous trial of those offenses may cause prejudice to the accused. And a jury is likely to use evidence adduced in support of one charge to convict the accused of another charge not independently or adequately proved. The jury, from the very nature of the human intellect, may unconsciously permit the two sets of facts to merge or blend together. Separately tried, the evidence in each case might clearly be insufficient to convict the defendant, but tried together, a jury may erroneously convict by supplying an element in one crime from the other.

To give the accused the choice of either moving for such joinder or being considered to have waived double jeopardy would be to place him in an untenable predicament to say the least.

For the reasons assigned, the ruling of the trial judge granting the motion to quash is sustained.

      . The Louisiana Constitution of 1921 contains this provision: “No person shall be twice put in jeopardy of life or liberty for the same offense, except on his own application for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained.” La.Const. art. I, § 9 (1921). Similarly, the Constitution of 1974 contains this guarantee: “No person shall be twice placed in jeopardy for the same offense, except on his application for a new trial, when a mistrial is declared, or when a motion in arrest of judgment is sustained.” La.Const. art. I, § 15 (1974).


author: HEARD, Judge.

text:
    Lawrence HOWARD et ux., Plaintiffs-Appellants, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Defendant-Appellee.
    No. 12777.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 1975.

      Huckaby, Piper & Brown by Robert E. Piper, Jr., Shreveport, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley, by Richard H. Switzer, Shreveport, for defendant-appellee.
    Before HALL, GLADNEY and HEARD, JJ.
   HEARD, Judge.

Plaintiffs, Lawrence and Dorothy Howard, are appealing from the trial court’s granting of summary judgment in favor of General Motors Acceptance Corporation, the holder of a note and chattel mortgage on a car purchased by plaintiffs. In the lower court plaintiffs had sued defendant in tort for damages for the conversion of the automobile and for mental distress caused by defendant’s allegedly unlawful seizure of the car following its sale to defendant by the trustee in bankruptcy.

The sole issue on appeal is the correctness of the trial court’s granting of summary judgment.

Plaintiff purchased a new automobile from Rountree Olds Cadillac Company of Shreveport. They made a cash down payment of $1,000 and financed the remainder of $3,735.61. The vendor took Howard’s note in the amount of $5,036.04, payable in monthly installments of $139.89, and a chattel mortgage on the car.

On December 10, 1974, Howard filed a petition for voluntary bankruptcy. Under the bankruptcy law, the filing of a voluntary petition operates as an adjudication, and title to all non-exempt property passes automatically to the trustee in bankruptcy. Plaintiff continued to make payments on the note held by defendant after December 10, in order to have the use of the car during- the pendency of the bankruptcy proceedings. Plaintiff missed the March payment and defendant filed an application for foreclosure of its chattel mortgage with the referee in bankruptcy. The trustee in bankruptcy sought the approval of the bankruptcy judge to foreclose the chattel mortgage and sell the car to the chattel mortgagee. On March 21, 1975, the bankruptcy judge approved the sale of the automobile to' defendant and ordered the delivery of the property “to said purchaser, free from all inferior liens and encumbrances”, in full satisfaction of defendant’s claim against the bankrupt’s estate.

’ On March 26,' 1975, defendant took possession of the car while it was parked on the street in front of plaintiff’s home and drove the car away. Plaintiffs filed suit on April 24, 1975, seeking damages for conversion of the car and for mental distress.

Defendant moved for summary judgment and attached the following documents to its motion: (1) plaintiff’s voluntary bankruptcy petition; (2) defendant’s proof of claim in bankruptcy; (3) a copy of the sale and chattel mortgage; (4) defendant’s application for foreclosure; and (5) the bankruptcy judge’s order approving the sale of the car to defendant.

Plaintiffs’ affidavit in opposition to summary judgment essentially repeated the allegations of their petition, to-wit;

“They were not served with any writ or process for seizure of their vehicle, financed by the above defendant; that their vehicle was seized without lawful authority and without their consent; that said vehicle was seized from their home by employees of defendant GENERAL MOTORS ACCEPTANCE CORPORATION: and that they have been occasioned great harm and mental anxiety, all set out in Petition filed with this Honorable Court.”

On the basis of the pleadings, affidavit, and documents the trial court granted defendant’s motion for summary judgment and dismissed plaintiffs’ suit at their cost. Plaintiffs have appealed and allege that the trial court erred in granting summary judgment.

Article 966 of Code of Civil Procedure— LSA, states:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
“The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

The purpose of summary judgment statute is to enable the court to expedite disposition of hearing cases where it is properly determined by the court that no issue of material fact is present. Villavasso v. Lincoln Beach Corp., 146 So.2d 7 (La.App. 4 Cir. 1962).

We held in Succession of Gary, 300 So.2d 524 (La.App.2d Cir. 1974), that opponent of motion for summary judgment must file affidavits to show a genuine issue of fact does exist and may not rely upon the allegations or denials of the pleadings.

Plaintiff no longer had any interest in the car after he filed the voluntary bankruptcy petition, since title to the car automatically passed to the trustee in bankruptcy. The bankruptcy judge approved the sale of the car to defendant in full satisfaction of its claim against plaintiffs’ estate. Defendant was the rightful owner of the automobile by reason of the sale from the trustee to the defendant. Therefore, defendant’s peaceful taking of the car from in front of plaintiffs’ home was not a tortious act. Since there was no tortious conduct involved, plaintiffs have not been harmed and summary judgment in favor of defendant was appropriate.

Accordingly, the judgment of the district court is affirmed. Plaintiffs are cast with all costs of these proceedings, including the cost of this appeal.


author: BAILES, Judge Pro Tem.

text:
    Margaret MESSINA et al. v. Aubrey L. MICHAEL et al.
    No. 10455
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused Feb. 17, 1976.
    Patrick W. Pendley, Plaquemine, for appellants.
    B. C. Bennett, Jr., Marksville, La., for defendant-appellee.
    John W. Jewell, New Roads, for third party defendant.
    Before SARTAIN, J., and BAILES and PICKETT, JJ. Pro Tem.
   BAILES, Judge Pro Tem.

This petitory action concerns the ownership of certain alluvion formed on the eastern bank of the Atchafalaya River in Pointe Coupee Parish, Louisiana. The land in question, which totals 171.30 acres, adjoins the southern boundary of Section 29 and the eastern boundaries of Sections 30, 31, 32 and 33 of Township 2 South, Range 7 East of that parish.

In their petition, plaintiffs claim the ownership of the alluvion through the judgment of possession in the succession proceedings of Peter Grezaffi, the late husband and father respectively of the plaintiffs. Additionally, they aver that the alluvion formed in front of sections 30, 31, 32 and 33, which is plaintiffs’ property exclusive of the allu-vion, with the alluvion being generally north of defendant’s property and on the east end of the said sections. Plaintiffs have pleaded that under the terms of LSA-C.C. Article 509 they are the owners of the alluvion.

Petitioners also aver that the defendant and his vendors in title took possession of about one-half of this alluvion and have removed a fence which separated petitioners’ property in Section 30 from defendant’s property in Section 29, and further that defendant planted corn on the westerly one-half of the alluvion which is presently being possessed by defendant.

In a supplemental petition, plaintiffs allege that defendant, Aubrey L. Michael, since the filing of the original petition sold the property owned by him to A & M Properties, Inc., and pray that the latter be made' a party defendant.

In answer, defendant denies having taken possession of any of the alluvion owned by plaintiffs and asserts the ownership of the alluvion that was fenced and farmed by him.

After trial, the district judge recognized plaintiffs as the owners of Sections 30, 31, 32 and 33, Township 2 South, Range 7 East, which adjoins the alluvion on the east end of these sections. Likewise, the defendant was recognized as the owner of that portion of Sections 26, 27, 28 and 29, Township 7 South, Range 7 East, lying between the levee and the Atchafalaya River. However, as shown by the attached plat prepared by Ralph L. Gagnard, registered land surveyor, Section 29 is the only part of defendant’s ownership that is contiguous to the alluvion in question. The trial judge recognized the alluvion as being enclosed within the area of land whose corners are designated by the letters z - x - y on the said plat.

Under the authority of Jones v. Hogue, 241 La. 407, 129 So.2d 194 (1960), and Oliver v. Milliken & Farwell, Inc., 290 So.2d 738 (La.App. 1st Cir. 1974), the trial court declared plaintiff the owner of 48.05 per cent of the alluvion, being the area enclosed by the letters w - x - y or 82.32 acres, and declared defendant the owner of 51.95 per cent, or 88.98 acres, being the area enclosed by the letters z - x - w, as per plat. Plaintiff appealed. We affirm.

Although plaintiffs, through counsel, in oral argument and in brief, argue they have a prescriptive title under Civil Code Article 3474 to all of the alluvion, there is no prescription whatever pleaded in their petition, or otherwise in the record.

Under the pleadings 'of both plaintiffs and defendant ownership of the alluvion was clearly put at issue. The basis for plaintiffs’ contended (in brief and oral argument) prescriptive title (10 year acquisitive) under Civil Code Article 3474 is that Peter Grezaffi acquired the alluvion by boundaries described as

“ * * * bounded north by Scott Finlay Gustafson and George Mercier, on the east by Middle Bayou, south by land of Isaac Hagan, and west by Atchafalaya River * * (Article 1 of plaintiff’s petition)

In Article 2 of their petition, as amended and supplemented, plaintiffs, in effect, allege defendant is owner of certain land north of and contiguous to their property. In the description of the property as set out in this Article 2, the following is found,

“ * * * together with the accretions thereto and less derelictions caused by the Atchafalaya River and is bounded on the north by Franklin Barbre, on the south by Peter Grezaffi, in part and in part by the Atchafalaya River; on the west by the Atchafalaya River and on the east by Atchafalaya River Levee in part and by Peter Grezaffi, * *

In its answer, defendant denied the allegations of plaintiffs’ ownership of the entire alluvion. If plaintiffs are relying for' ownership of the whole, or any part of the alluvion apart from LSA-C.C. Article 509, namely, a prescriptive title under LSA-C.C. Article 3474, or otherwise, it was necessary for plaintiffs to have pleaded such prescription. Stated another way, it may be said that the alluvion herein is not a basic part of plaintiffs’ title except as it may have been acquired under LSA-C.C. Article 509. The record fully substantiates the fact that by the meander line of 1830 of the east bank of the Atchafalaya River both plaintiffs’ and defendant’s property fronted on the river. Insofar as ascertainable from the record these parties and their ancestors in title never effected a division of this alluvion. If plaintiffs are claiming title to the whole of the alluvion by reason of possession of such sufficiency to support a prescriptive title it was necessary that they plead such prescription.

The following statutory provisions are controlling:

LSA-C.C. Article 3458:

“The prescription by which the ownership of property is acquired, is a right by which a mere possessor acquires the ownership of a thing which he possesses by the continuance of his possession during the time fixed by law.”

LSA-C.C. Article 3463:

“Courts can not supply the plea of prescription.”

LSA-C.C. Article 3464;

“Prescription may be pleaded in every stage of a cause, even on the appeal, but it ought to be pleaded expressly and specially before the final judgment.

LSA-C.C.P. Article 927, in part, states:

“The objections which may be raised through peremptory exception include, but are not limited to, the following:
(1) Prescription;
% >{i s}t % >{< :Ji
The court cannot supply the objections of prescription and res judicata, which must be specially pleaded. * * *

LSA-C.C.P. Article 2163:

“The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
“If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.”

See Kenner v. Larrabee, 17 La.App. 602, 136 So. 916, on page 917 (1st Cir. 1931), wherein this court stated:

“[4] Plaintiff, in his brief, discusses the question of prescription, but, as we find no pleas of any kind presented here or in the lower court, we cannot consider it.”

In view of the above authorities, we cannot consider the argument of plaintiffs addressing the question of prescription.

We find that the plaintiffs’ property description which recites only that its western boundary is the Atchafalaya River is not sufficient, standing alone, to convey to them the entirety of the alluvion. The defendant’s property description also contains language of similar import which establishes the river as its western boundary. The legal consequences of the formation of this land area by the changed course of the Atchafalaya River are primarily controlled by Civil Code Articles 509 and 516 and the case law emanating therefrom, not by the title of the affected riparian owners. Those Civil Code Articles provide, to-wit:

Art. 509. “The accretions, which are formed successively and imperceptibly to any soil situated on the shore of a river or other stream, are called alluvion.
The alluvion belongs to the owner of the soil situated on the edge of the water, whether it be a river or stream, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use.”
Art. 516. “If an alluvion be formed in front of the property of several riparian proprietors, the division is to be made according to the extent of the front line of each at the time of the formation of the alluvion.”

The trial court relied upon the cases of. Jones v. Hogue, 241 La. 407, 129 So.2d 194 (1960) and Oliver v. Milliken & Farwell, Inc., 290 So.2d 738 (La.App. 1st Cir. 1974) in concluding that the alluvion should be divided on a frontage to frontage basis. In Jones, the court, after reviewing the conflicting body of jurisprudence which had arisen concerning the subject, said:

“As has been said by this court, the ownership of alluvion is a legislative donation to the riparian proprietor without which it would be public property, and consequently it is a pure gratuity by the state to the riparian proprietor. See Heirs of Delord v. City of New Orleans, supra. It follows that the state clearly intended that the apportioning of alluvion formed in front of the property of several riparian owners should be made in such a manner as to prevent inequities as far as possible; or, stated somewhat differently, that in making such an apportionment the alluvion should be divided equitably as nearly as possible so as not to give one proprietor an advantage over thé other.
“In sum, when alluvion formed in front of the estates of riparian owners is to be divided, two objects, insofar as possible, are to be attained: (1) Each owner should receive a fair proportion of the area of the alluvion, and (2) each should receive a fair proportion of the new frontage on the water. Because of the varying conditions which obtain in different cases, no one method of effecting a division can be prescribed which will not in some instances result in substantial inequities. The courts can therefore do no more than take each case as it is presented and order an apportionment by the method which will most nearly attain these two objects and do justice between the parties to the particular case.”

Applying these principles to the case at bar, we find no error in the judgment of the trial court. The drawing prepared by Ralph L. Gagnard, a registered land surveyor, shows that the division was made by determining that the plaintiffs originally had 48.05 per cent of the total frontage of the two tracts on the river before the forming of the alluvion, and that the defendant had 51.95 per cent of that frontage. The alluvion was then divided according to those percentages and a line of separation drawn from the point where Sections 29 and 30 meet, to the river. The result of this division was that the plaintiff and defendant would receive 82.32 and 88.98 acres respectively. Under this division, their new river frontage is almost of identical length. We think the judgment is entirely equitable and is in harmony with those principles set out in Jones, supra.

Accordingly, the judgment of the trial court is affirmed. All court costs are to be paid by plaintiffs.

Affirmed.


author: DENNIS, Judge.

text:
    Elsie S. LINDSEY et vir, Plaintiffs-Appellants, v. AETNA CASUALTY & SURETY COMPANY, Defendant-Appellee.
    No. 12735.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Refused Feb. 11, 1976.
    Pugh & Nelson by Sydney B. Nelson, Shreveport, for plaintiffs-appellants.
    Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr., Shreveport, for defendant-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   DENNIS, Judge.

This appeal questions the propriety of a partial summary judgment.

The undisputed facts shown by the pleadings relevant to the motion for summary judgment are as follows: Plaintiffs, Elsie Lindsey and her husband, Joseph E. Lindsey, seek to recover from their insurer, Aetna Casualty & Surety Company, for personal injuries sustained by Mrs. Lindsey in an automobile accident on October 15, 1973. They allege that her injuries were caused by the negligence of two other drivers involved in the wreck. One of these drivers, Elmarie McGee, was insured against liability for her negligent operation of her automobile by a policy which provided $5,000 coverage for bodily injury to any one individual. On October 20, 1972, Aetna Casualty & Surety Company had issued to plaintiffs a policy of liability insurance insuring three separate vehicles and providing uninsured motorists coverage for each person injured, which plaintiffs contend they are entitled to “stack” for a total uninsured motorist coverage of $15,000.

Aetna Casualty & Surety Company successfully moved for a summary judgment rejecting plaintiffs’ claim based on Elmarie McGee’s negligence for the reason McGee was not an “uninsured motorist” under the terms of the Aetna policy. Plaintiffs appealed contending in essence that the term “uninsured motorist” was broadened by Act 137 of 1972 to include motorists, such as McGee, with less insurance coverage than the uninsured motorist coverage afforded by the claimant’s own insurer, such as Aetna in this case. Aetna concedes that is the effect of the Act but argues that since the statute, under its own provisions, did not become effective until January 1, 1973, the meaning of the term “uninsured motorist” in the policy issued to the Lind-seys on October 20, 1972 was not affected by the legislation.

Act No. 137 of 1972, which became La. R.S. 22:1406, subd. D(l), (2), provides:

“D. (l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.
“(b) Any insurer delivering or issuing an automobile liability insurance policy referred to herein, shall also permit the insured, at his request, to increase the coverage applicable to uninsured motor vehicles provided for herein to any amount not in excess of the limits of the automobile liability insurance carried by such insured.
“(2) (a) For the purpose of this coverage/the terms ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.
“(b) For the purposes of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by an insured.”

Read literally the statute simply prohibits insurers from issuing or delivering automobile liability insurance policies unless uninsured and underinsured motorist coverage is provided therein. Assuming, arguendo, that Act No. 137 of 1972 had the effect of statutorily rewriting policies devoid of un-derinsured motorist coverage to supply this additional protection for policyholders, instead of merely subjecting the offending insurers to possible fines, punishment and revocation of licenses under R.S. 22:1455 and 1457, the question remains, does the Act apply to all policies regardless of the date of their issuance? We think the statute is essentially a prohibition of future conduct and, because its interdiction did not become effective until January 1, 1973, it could not affect policies issued before this date. Had the Legislature intended otherwise it would have clearly provided that the law applied to insurance policies previously issued, in existence on the effective date, or words of similar import. See Lorio v. Safeco Insurance Company of America, 316 So.2d 744 (La.App., 1st Cir. 1975). Compare, however, Richard v. Zurich Insurance Company, 318 So.2d 83 (La.App., 3d Cir. 1975).

Accordingly, we agree with the trial judge who concluded that Elmarie McGee was not an uninsured motorist under the terms of the policy. Consequently, plaintiffs’ claim, which was based on this premise, was properly rejected by summary judgment.

The District Court’s judgment is affirmed at appellants’ cost.

Affirmed.

MARVIN, J., concurs in result.


author: ELLIS, Judge:

text:
    Dusty P. CHAISSON et al. v. J. RAY McDERMOTT & CO. et al.
    No. 10460.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused March 12, 1976.

      Joseph J. Weigand, Jr., Houma, for McDermott.
    Richard M. Donahue, Metairie, for Dusty Chaisson.
    Christopher E. Lawler, New Orleans, for Levron and State Farm.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

Dusty P. Chaisson was riding as a guest passenger in the back seat of an automobile, owned by Rodney H. Levron, Sr. and operated by Rodney H. Levron, Jr., when it was involved in an accident with a truck owned by J. Ray McDermott and Company and operated by Curtis R. Sullivan. At the time of the accident, both Dusty Chaisson and Rodney Levron, Jr., were minors, although the former attained majority before this suit was filed.

Plaintiffs are Dusty P. Chaisson and Wiley Chaisson, his father. Defendants are Mr. Levron, individually and as natural tutor of his son; State Farm Mutual Automobile Insurance Company, their insurer; and McDermott, Mr. Sullivan and Travelers Insurance Company, their insurer. After trial on the merits, j udgment was rendered in favor of Wiley Chaisson for $1,083.47 and in favor of Dusty P. Chaisson for $25,000.00. McDermott, Sullivan and Travelers were found solidarily liable to both plaintiffs. The suit was dismissed as to Mr. Levron and State Farm.

From that judgment, McDermott, Sullivan and Travelers have appealed, asking that the judgment be reversed as to them. Plaintiffs have appealed, asking for judgment against all defendants, and for an increase in the award.

The accident happened at about 9:30 o’clock on the night of June 3, 1972, on Louisiana Highway 20, a paved, two-lane highway with narrow shoulders. The night was clear and the road was dry. The Levron vehicle had been heading south. Young Levron was attempting a U turn in the highway, in order to head back to the north. As he was doing so, his car stalled, completely blocking the northbound lane of the highway, with its two front wheels on the east shoulder of the road.

As Mr. Levron attempted to start the car, the McDermott truck, driven by Mr. Sullivan, came around a curve in the highway, about three-tenths of a mile south of the Levron car, heading north at a speed of about 50 miles per hour. Mr. Levron saw the truck when it was crossing a bridge a quarter of a mile to the south, but took no action other than to continue to try to start his car. Mr. Sullivan never did see the Levron vehicle, and hit it broadside, without having applied his brakes or slackening his speed. Mr. Levron testified that the lights of his vehicle were burning at all times prior to the accident. The Levron car was dark blue in color.

The trial judge found that the accident was due solely to the fault of Mr. Sullivan in failing to see the Levron vehicle in time to avoid the accident.

It is claimed that Mr. Sullivan was not negligent, since the object which he struck, the Levron vehicle, was dark in color and unlighted, and there was no warning of its presence on the road. The evidence reflects that the Levron vehicle was dark blue in color, and that its lights were lit. However, since it was virtually broadside across the highway, the lights were probably not as apparent as they might otherwise have been. In determining whether Mr. Sullivan should have seen the Levron car in time to avoid this accident, the standard to be applied is one of reasonableness. In Craker v. Allstate Insurance Company, 259 La. 578, 250 So.2d 746 (1971), the court said:

“The old rule literally applied is no longer a practical or fair regulation for the night time speed of modern drivers of modern cars on our highways. Consequently the rule has been modified to incorporate this realization and to exact a standard of care of the night time driver based upon the broad requirement of reasonableness, a formula of negligence where there are few absolute rules and one requiring a careful consideration of all circumstances surrounding each case.
“The evolution of the ‘assured clear distance’ rule we have noted does not relieve the plaintiff of the obligation to prove with legal certainty, by a preponderance of the evidence, the acts of negligence charged against a defendant.”

Considering the foregoing, and the requirement that all drivers keep a careful lookout, and see what is there to be seen; and the requirements of R.S. 32:301-321, relative to headlamp intensity; and the fact that the road was straight and clear in the vicinity of the accident; and the fact that there was no oncoming traffic, we think that Mr. Sullivan was charged with seeing and avoiding the Levron vehicle, and that his failure to do so renders him negligent.

A different question is posed relative to the alleged negligence of Rodney Levron, Jr. It is unrebutted in the record that his car had never before stalled out on him as it did in this instance, so that he could not be charged with anticipating that it would do so. Nor do we find any absolute prohibition against executing a U turn on the highway. R.S. 32:102 forbids making such a turn within 500 feet of a curve or the crest of a grade, but the record shows that the maneuver was attempted three tenths of a mile from the nearest curve.

Admittedly a U turn is a hazardous maneuver, not to be attempted when it is not reasonably safe to do so. In this case, the evidence shows that there was no approaching traffic in sight when the turn was attempted. If Rodney Levron, Jr. was negligent, it was because he did not follow the provisions of R.S. 32:141(B), which states:

“The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.”

After he saw the truck approaching, one quarter of a mile away, young Levron took no action to remove his car from the highway other than to continue trying to start engine. Neither did he in any way attempt to warn the oncoming vehicle of his presence on the road, blocking the entire lane of traffic. He assumed that Mr. Sullivan would see him. The question which we must answer is whether or not his behavior in the above respects was reasonable under the circumstances.

We think that, since Mr. Levron knew of the approaching truck when it was over a quarter of a mile away, was aware of the dark color of his car, and should have realized that his lights were not clearly visible to approaching traffic, he owed a duty to do something other than to attempt to move his car by trying to re-start it after it stalled. It would have been an easy matter to send one of the passengers up the road to flag oncoming traffic, and there was certainly ample time to do so when the truck was first sighted. By failing to protect traffic, young Levron was guilty of negligence sufficient to subject him to liability to his guest passenger.

We think this is one of those accidents which would not have happened had either of the parties involved fulfilled the duties imposed on him by the law. The negligence of one party cannot excuse that of the other when responding in damages to an innocent third party plaintiff.

Plaintiffs in their appeal pray for an increase in the award in damages made to Dusty Chaisson. Defendants’ only complaint is that the district judge did not itemize the $25,000.00 award. We know of nothing which requires him to do so.

The testimony reveals that Dusty suffered fractures of the transverse processes of four of his lumbar vertebrae. The processes are spurs extending to either side of the vertebrae to which muscles attach. He also suffered a deep laceration on his ankle. As of October 12, 1972, Dusty’s back was essentially normal on physical examination. One of the doctors gave him a possible ten per cent, disability of the back because he felt that future heavy labor might cause a deterioration of his condition. The only residual disability resulting from the ankle injury was a numbness of the two small toes of his foot. Neither doctor placed any limitation on his activities, although one of them said it was “understood” that Dusty would do no vigor-out offshore labor in the oil industry.

Dusty testified that he was unable to do any heavy labor because his doctor told him that he would not be able to perform it for the rest of his life. At the time he was injured, he was just finishing high school and had never done any offshore work. He had worked part time as a truck driver for his uncle, Percy Chaisson, and planned to work for him full time on his graduation.

Under those circumstances, we think the award of $25,000.00 was very liberal, although the injuries were extremely painful and Dusty was totally disabled for several months after the accident.

The judgment appealed from is therefore amended so as to find Rodney H. Levron, Jr. and State Farm Mutual Automobile Insurance Company liable, in solido, with the other defendants cast, and as amended, it is affirmed, with all costs to be paid by the defendants.

Amended and affirmed.