author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Robert BARTLEY.
    No. 56529.
    Supreme Court of Louisiana.
    March 29, 1976.

      Charles L. Brumfield, Boutte, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Norman J. Pitre, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Robert Bartley, with armed robbery in violation of LSA-R.S. 14:64. After a trial by jury, he was convicted and sentenced to eighteen years imprisonment, without benefit of probation, parole, or suspension of sentence. On appeal to this. Court, defendant relies upon seven assignments of error. Assignment of Error No. 5 was neither briefed nor argued and is considered abandoned. See State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972). Finding merit in none of them, we affirm the defendant’s conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1-4

In these assignments of error, defendant complains that the trial judge erroneously denied his motion to suppress certain evidence seized at an apartment at 101 Morgan Street in Hahnville, Louisiana. Defendant contends that the evidence was seized in a warrantless search that violated his Fourth Amendment rights.

The pertinent facts, developed at the hearing on the motion, are as follows: State Trooper W. McBroom received information over his radio that an armed robbery by four masked black men was then in progress at Gaston’s Bar in Hahn-ville. He broadcast an alert and rushed to the scene, just missing the robbers’ departure. A witness reported seeing a black car with several men in it driving very fast away from the bar towards a school. Trooper McBroom found the car behind the school building a few blocks away. It matched the witness’s description; additionally, he noticed several rolls of coins on the floor and seats. When other officers arrived a man baling hay in a nearby field told them that a few minutes previously he had seen four or five black males in the same car drive to the end of the road in his field, reverse the car, and quickly back up. Two or three of them jumped out of the car and ran through the grass toward some nearby apartments.

Within fifteen minutes, the officers put the apartments under surveillance, especially observing the activities at 101 Morgan Street, one side of a duplex a few hundred feet from the abandoned car. Upon arrival of additional officers, the police approached the apartment and questioned Jules Scott, who was repairing a car in front of No. 101. Officer Faucheaux testified that Scott told him that he lived there with Christine Antonio as her common-law husband and that Scott voluntarily gave them the apartment key, which was inside the car. When the officers opened the door with the key, the police saw the defendant Bartley, who attempted to flee, and a quantity of money on the floor. They investigated noises in the other rooms and found three other suspects and a large amount of cash. They then arrested the four suspects and seized the cash, several pistols, a wrist watch, and a wallet.

Defendant’s only witness at the hearing was Jules Scott, who testified that he did not give the police permission to search the apartment, because he was not living there at that time. He testified that the police took the keys from his car against his will and that he had been afraid someone would shoot him as some of their guns were drawn. Deputy Faucheaux’s testimony directly contradicted Scott’s. The trial judge, evaluating the credibility of the witnesses, stated that he did not believe Scott’s testimony because of his relationship with the defendants.

Consent is one of the well-recognized exceptions to the search warrant requirement. See e. g., Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L. Ed.2d 854 (1973). It is clear that Scott, the common-law husband of the person in whose name the apartment was leased, had authority over the apartment at the time of the search, and his consent to a search is valid. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Hubbs, 261 La. 173, 259 So.2d 53 (1972). Furthermore, the question of consent is a factual one. A factual determination by the trial judge, especially when as here it involves the credibility of witnesses, must be given great weight on appeal. State v. Hubbs, supra; State v. Hall, 257 La. 253, 242 So.2d 239 (1970). We find no error in the trial judge’s finding that the consent was valid.

These assignments of error have no merit.

ASSIGNMENT OF ERROR NO. 6

Defendant alleges that the trial judge erred in refusing to order a directed verdict in his favor because the State failed “to meet its burden of proof.” In State v. Douglas, La., 278 So.2d 485 (1973), this Court held that the denial of a directed verdict can be reversed on appeal only when there is no evidence of an essential element of the crime charged. We have reviewed the transcript and find some evidence of all the elements of the crime.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

Defendant alleges that he was not convicted on “evidence strong enough to sustain a conviction beyond a reasonable doubt”; he contends that he should be granted a new trial under Article 851(5) of the Louisiana Code of Criminal Procedure, which provides for the granting of a new trial whenever the court is of the opinion that the ends of justice would be served thereby.

It is well established in Louisiana that an assignment of error reserved to the denial of a motion for a new trial alleging that the verdict is contrary to the law and the evidence presents nothing for appellate review. State v. Williams, La., 310 So.2d 513 (1975); State v. Hollingsworth, La., 292 So.2d 516 (1974); State v. Washington, La., 292 So.2d 234 (1975).

The assignments of error have no merit.

For the reasons assigned, the conviction and sentence are affirmed.


source: Caselaw Access Project

author: SUMMERS, J., DIXON, J.,

license: Public Domain

text:
    STATE of Louisiana v. Rex WILHITE.
    No. 57760.
    Supreme Court of Louisiana.
    April 1, 1976.
   In re: State of Louisiana applying for Writs of Certiorari, Prohibition and Mandamus.

Writ denied. We cannot say the trial judge’s ruling granting a mistrial is incorrect. Moreover, since the trial judge has discharged the jury and reset the matter for trial, the matter is moot.

SUMMERS, J.,

this matter is moot. All other expressions of the majority is an improper advisory opinion.

DIXON, J.,

concurs in the denial. It was clear error, requiring a mistrial, for the prosecutor to refer to other criminal conduct by the defendant in cross-examination.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Joseph Leon CHASE, Appellant.
    No. 57145.
    Supreme Court of Louisiana.
    March 29, 1976.

      C. Jerome D’Aquila, New Roads, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Samuel C. Cashio, Dist. Atty., Charles H. Dameron, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of murder, La.R.S. 14:30 (1950), and sentenced to life imprisonment “without benefit of parole, probation, commutation, or suspension of sentence.”

Upon his appeal, he argues two errors as reversible: (a) the admission of photographs of the victim (bills of exceptions 2 and 3); and (b) the failure to suppress from evidence the gun used in the killing, allegedly the product of an illegal search (bills of exceptions 5 and 6). Additionally, we note a sentence defect which will require correction.

Photographs

Over defense objection, four photographs of the murder victim were introduced into evidence. They showed the position and condition of her body at the time it was discovered lying in a field. The defendant argues that, since the killing by gunshot wound is not contested, the pictures have little probative value and that their prejudicial effect outweighs what little probative value they have.

To be admissible, photographs must be offered for some relevant purpose and, even if so, must have probative value which outweighs any inflammatory effect. State v. Smith, 327 So.2d 355 (Docket No. 56,410; decided on rehearing February 23, 1976); State v. Beach, 320 So.2d 142 (La. 1975); State v. Chavers, 294 So.2d 489 (La.1974); State v. Curry, 292 So.2d 212 (La.1974). As we noted in State v. Palmer, 227 La. 691, 80 So.2d 374, 383 (1955):

“In determining their admissibility, proper inquiry should he made to ascertain whether such evidence would clarify some material issue and would afford the court and the jury a clearer comprehension of existing physical facts and throw greater light and more accurate appreciation of the weight, if any, to be given the oral testimony. Manifestly, where photographs are irrelevant or immaterial, would confuse, or mislead, rather than be helpful, distract the tribunal’s attention to other than the main issues, or where the natural effect of their introduction in evidence would arouse the sympathies or prejudices, rather than throw helpful light, such evidence should be promptly excluded.”

The decedent was the victim of an unwitnessed killing. In a statement taken from the accused prior to trial, he had claimed that the killing was accidental, when his gun went off by mistake.

The pictures themselves are unpleasant. They are not, however, so prejudicially gruesome as to outweigh their probative value for the purposes offered: By showing the position of the body and the nature of the wounds, they tended to negate the defense of accidental rather than intentional shooting. They were also of value in affording the jury a clearer appreciation of the factual testimony of the witnesses as to the location and appearance of the victim’s body when found in the plantation field.

We find no merit to this assignment.

Suppression of the Gun

After the murder, a gun was located in the accused’s home. Ballistic tests proved that it was the weapon which had killed the victim.

The defendant objected to admission of the gun on the ground that it was the product of an illegal warrantless search. There is no merit to this objection.

The defendant lived in his mother’s home. Earlier, a search warrant had been secured to search the home. The defendant’s brother had, after the accused's arrest, placed the gun in a closet, which the searching officers overlooked.

When the brother learned of the search, he called the police, with the consent of the mother, who owned the home. He and the mother showed the police the location of the gun when they came. The mother (whose house it was) and the brother thus on their own initiative called the police to have them pick up the gun and, without the slightest police coercion, voluntarily turned over the weapon to law enforcement personnel.

It is doubtful that a “search and seizure” occurred when the police came into the home and accepted the gun at the spontaneous good-faith invitation of persons with dominion over the premises and the property. See Coolidge v. New Hampshire, 403 U.S. 485, 91 S.Ct. 2022, 2050, 29 L.Ed. 2d 564 (1971). Even if it were a search, however, consent given by a co-inhabitant of the house is sufficient to permit inspection of a common area of the home to which the coinhabitant’s joint access with the accused may reasonably be recognized. State v. Johnson, 319 So.2d 786 (La.1975); State v. Taylor, 303 So.2d 169 (La.1974); State v. Nelson, 261 La. 153, 259 So.2d 46 (1972). See also United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Sentence Defect

The jury found the defendant guilty of murder. It qualified its verdict, as authorized, La.C.Cr.P. art. 817 (as amended by Act 502 of 1972, the enactment in force at the time of the offense), by adding “without benefit of parole, probation, commutation, or suspension of sentence.”

The power to commute sentences is an incident of the power to pardon which has been and is constitutionally vested in the governor. La. Const, of 1974, Art. 4, Section 5(E); La.Const. of 1921, Art. V, Section 10. It cannot be restricted by the legislature; hence, the severable restriction attempting to prohibit commutation of sentences is unconstitutional. State v. Ramsey, 292 So.2d 708 (La.1974); State v. Varice, 292 So.2d 703 (La.1974); See also, State v. Smith, 327 So.2d 355 (Docket No. 56,410, decided on rehearing February 23, 1976).

Accordingly, as in the cited cases, we must set aside the sentence and remand this case for the trial court to re-sentence the defendant to life imprisonment without benefit of parole, probation, or suspension of sentence (i. e., but not without benefit of commutation).

Decree

For the reasons assigned, we affirm the conviction, but we annul the sentence and remand this case for sentencing in accordance with law.

CONVICTION AFFIRMED; CASE REMANDED FOR SENTENCING.


author: TATE, Justice. DENNIS, J., DIXON, Justice

text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. R. C. EDWINS, Respondent.
    No. 55456.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      A. Russell Roberts, Chairman, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Henry A. Politz, Shreveport, John F. Pugh, Thibodaux, John B. Scofield, Lake Charles, Thomas O. Collins, Jr., New Orleans, Counsel, Louisiana State Bar Association Committee on Professional Responsibility, for petitioner.
    Walker P. Macmurdo, Macrino R. Trel-les, Jr., Baton Rouge, for respondent.
   TATE, Justice.

The Louisiana State Bar Association, appearing through its Committee on Professional Responsibility, instituted these disciplinary proceedings against R. C. Edwins, a member of the Louisiana bar. La.Const. of 1974, Art. 5, Section 5(B). Under the provisions of Article XV, Section 6, of the Articles of Incorporation of the Association (1971), approved by us as a rule of this court, a commissioner was appointed to take evidence and to report to us his findings of fact and conclusions of law.

The commissioner’s report filed with this court, after making certain findings of fact, concluded: “It is, therefore, the conclusion of the undersigned that Respondent, R. C. Edwins, has been guilty of professional acts and omissions which do not conform to standards of character and conduct laid down by the profession, particularly with reference to advancement of money and failing to account to the client for funds received. It is the further conclusion of the undersigned that Respondent, R. C. Edwins, did seek representation of Ralph H. Thomas and this constitutes solicitation. Being unable, however, to determine which Disciplinary Rule, if any, was or would be violated, the undersigned cannot conclude that a violation, as a matter of law, did occur.”

To this report, the Association through its Committee on Professional Responsibility filed a concurrence to its findings of fact, but excepted to its conclusion of law that the solicitation activity shown by the respondent Edwins did not constitute a violation of a disciplinary rule. The respondent did not formally except to the commissioner’s report; however, by brief and oral argument through his counsel before this court, be vigorously contests both the findings of fact and the conclusions of law.

I. Scope of Review

At the outset, we are faced with the Association’s contention that the respondent’s failure to except formally to the commissioner’s report timely bars this court from considering the findings of fact and conclusions of law therein which are adverse to the petitioner. In so concluding, the Association relies upon Article XV, Section 6(d) of its Articles of Incorporation, which provides:

“(d) Report of the Commissioner— Upon the termination of the hearing, the commissioner shall file with the Supreme Court his written report wherein he will state his findings of fact and conclusions of law. The parties shall have twenty (20) days from the time of the filing of the report to file exceptions thereto, and if no exceptions are, within that period, filed by either party, the report shall be confirmed. If exceptions are filed, they shall be heard by the court on the summary docket on the record prepared by and before the commissioner.”

Before discussing this contention, it may be well to review the respective functions and authority of the Association and of this court in disciplinary matters.

This court has “exclusive original jurisdiction of disciplinary proceedings against a member of the bar”. La.Const. of 1974, Art. 5, Section 5(B). See also La.Const. of 1921, Art. 7, Section 10(2). The state bar association is created and regulated under the rule-making power of this court, and its articles of incorporation, disciplinary proceedings, and code of professional conduct have been adopted as rules of this court. This adoption by rule is pursuant to the cited constitutional mandate and in accord with the inherent power of this court to prescribe rules and regulations governing the practice of law in the jurisdiction.

See: Rules of Supreme Court of Louisiana, Rule 19 (1973) ; La.R.S. 37:211; In re Mundy, 202 La. 41, 11 So.2d 398 (1942); Hood, Renewed Emphasis on Professional Responsibility, 35 La.L.Rev. 719, 722-23, 737-39 (1975).

We have held that, when a respondent attorney fails to except (as required by the court rule) to the factual findings of the commissioner’s report, they are confirmed against him. Louisiana State Bar Association v. Klein, 253 La. 603, 218 So.2d 610 (1969); Louisiana State Bar Association v. Mayeux, 249 La. 7, 184 So.2d 537 (1966); Louisiana State Bar Association v. Powell, 248 La. 237, 178 So.2d 235 (1965); Louisiana State Bar Association v. Youder, 243 La. 909, 148 So.2d 597 (1963); Louisiana State Bar Association v. Wheeler, 243 La. 618, 145 So.2d 774 (1962), and Louisiana State Bar Association v. Woods, 243 La. 94, 141 So.2d 828 (1962).

However, as these decisions recognize, the ultimate responsibility as to the discipline warranted by the facts rests with this court. Further, while some of the decisions contain statements that the commissioner’s conclusions of law, if not excepted to, become conclusive, such statements are dicta in the light of the issues then before the court.

As we noted in In re Reed, 207 La. 1011, 22 So.2d 552, 555-56 (1945): “The Commissioner’s report is prepared and furnished solely for the court’s assistance and convenience in determining the issues of the disbarment proceeding, and any recommendations contained therein are not conclusive on the court.”

Again, with regard to the specific issue before us, we stated in Louisiana State Bar Association v. Wheeler, cited, above, 145 So.2d at 777-78:

“And whether respondent’s exception to the report . . . was timely is immaterial under the circumstances, for this court in discharging its responsibility in disbarment proceedings must, of necessity, review the record in order to mete out the proper disciplinary action in the light of the charges, defenses, evidence and report of the commissioner. That portion . . . of the Articles of Incorporation of the Louisiana State Bar Association providing the report ‘shall stand confirmed’ where no exceptions are timely filed, means only that it stands confirmed as to the party or parties failing to except ‘within’ the twenty-day period from its filing. Our right to review the record in such an important matter has never—either by our rules or in our pronouncements in individual cases—been relinquished or surrendered to the commissioner; and the parties, by failing to timely object to his report, cannot thus curtail the duties and responsibilities of this court.”

Thus, while the respondent’s failure to formally except to the commissioner’s report may bar his right to contest that certain facts occurred (if this court, in its independent review, finds that sufficient and competent evidence supports them), nevertheless it is the responsibility of this court, not of the commissioner, to conclude whether, as a matter of law, such facts constitute the unethical conduct charged, as well as for it to assess what penalty it deems appropriate if it finds disciplinary proceedings are warranted.

Preliminarily, we should note that, in disbarment proceedings the burden rests on the association to establish proof of misconduct by clear and convincing evidence. Louisiana State Bar Association v. Brown, 291 So.2d 385 (La.1974). See also Louisiana State Bar Association v. Levy, 292 So.2d 492 (La.1974), and In re Novo, 200 La. 833, 9 So.2d 201 (1942).

“Clear and convincing evidence”, in general, means that the fact of guilt must be proven to a greater degree than by “a mere preponderance of the evidence” but less than by “beyond a reasonable doubt”. Sanders v. Sanders, 222 La. 233, 62 So.2d 284 (1952); Annotation, Attorneys’ Misconduct — Degree of Proof, 105 A.L.R. 984 (1936). See also 7 C.J.S. Attorney and Client § 33(3), and 7 Am.Jur.2d, “Attorneys at Law”, Section 67. As stated at Sanders, The Anatomy of Proof in Civil Actions, 28 La.L.Rev. 297, 304 (1968) : “The standard requires that the existence of the disputed fact be highly prohable, that is, much more probable than its non-existence.” (Italics ours.) See also: McCormick on Evidence, Section 340(b) (2d ed. 1972).

II. Disciplinary Rules Allegedly Violated

The Code of Professional Responsibility for Louisiana Lawyers (adopted as a rule of this court), Article 16, Articles of Incorporation, Louisiana State Bar Association, is divided into “(1) Canons, (2) Ethical Considerations, and (3) Disciplinary Rules. The Canons are ‘statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationship with the public, with the legal system and with the legal profession.’ The number of canons has been reduced from forty-seven to nine. Ethical Considerations are ‘aspirational in character,’ and they represent ‘the objectives toward which every member of the profession should strive.’ The Disciplinary Rules are mandatory in character. They ‘state the minimal level of conduct below which no lawyer can fall without being subject to disciplinary action.’ ” Hood, Renewed Emphasis on Professional Responsibility, 35 La.L.Rev. 719, 737 (1975).

The disciplinary rules which the Association contends were violated by the respondent Edwins are:

Disciplinary Rule 2-103 provides: “A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer”;

Disciplinary Rule 9-102(B)(3) provides that a lawyer shall “maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them”; and,

Disciplinary Rule 5-103(B) provides: “While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client, except that the lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.”

III. Specifications of Misconduct

The hearing before the commissioner involved two general specifications:

1. That in July, 1970 the respondent Edwins (a) improperly solicited employment as attorney from Ralph Thomas to represent him in a seamen’s suit, (b) improperly advanced financial assistance to Thomas during his representation of him, and (c) when the suit was settled in May 1972, improperly neglected to account to Thomas for the withholding of advances and expenses (in addition to his fee) from the proceeds of the settlement.

■ 2. That, during his representation of Donald Selzer in a seamen’s suit from March — June 1972, Edwins improperly advanced some funds to his client.

We will discuss these specifications in the order thus set forth.

Specification 1(a): Solicitation

The commissioner’s report finds: “The evidence in this case is clear and convincing' to the effect that Respondent [Edwins], with the aid of an employee (Johnson) and the assistance of a stranger (Enos Danos) did call upon Ralph H. Thomas at his trailer home in Raceland, Louisiana. As a result of this visit, respondent obtained a contract of employment to represent Thomas in the capacity of an attorney at law. Thomas did not seek out respondent for advice nor did he make any effort to contact respondent. It was a suggestion from Danos to Johnson that led Johnson to Thomas and ultimately resulted in the visit by respondent to Thomas.”

The virtually uncontradicted evidence supports this factual conclusion by the commissioner. Nevertheless the commissioner could not find that the conduct in question violated any disciplinary rule. The Association excepts to this conclusion.

Disciplinary Rule 2-103(A), above quoted, prohibits an attorney from recommending his own employment “to a non-lawyer who has not sought his advice regarding employment of a lawyer.” A lawyer cannot circumvent this disciplinary rule through the action of another, Disciplinary Rule 1-102(A)(2), such as by his employee (Johnson) or by a non-lawyer third person (Danos) who (without authorization from a claimant) informs the attorney of some claimant’s need for legal representation, even though that third person requests the lawyer to go by and visit the claimant.

The issue, thus, is whether Edwins through his employee Johnson solicited employment to represent Thomas, either from Thomas himself or from Danos, a third party who was not authorized by Thomas to request an attorney to come see Thomas. If, on the other hand, Thomas did request Danos to secure an attorney for him, then no solicitation by Edwins occurred— he came to see Thomas at the request of Thomas (through the latter’s agent in the matter, Danos).

The attorney Edwins’ chief defense is that he and his employee Johnson did not solicit employment; that they contacted Thomas only at the request of Danos, a stranger to them; and that they presumed that Danos was authorized by Thomas to attempt to locate an attorney for him, since Danos was a former employer, a quasi-landlord, and a responsible businessman who was Thomas’s friend.

Neither Danos nor Johnson was subpoenaed to testify by either the Association or Edwins. Edwins contends that the failure of the Association to call these two as witnesses constitutes a failure on its part to produce the clear and convincing proof of solicitation required for disciplinary proceedings.

We were given some pause by this contention. After all, knowing of the relationship between Danos and Thomas, Edwins might not unreasonably have concluded that Danos was authorized by Thomas to assist him in securing an attorney to represent him.

On the other hand, the evidence of Thomas and his wife is to the effect that Danos knew of their need for an attorney, but that they did not request him to secure one. In the face of the evidence, in our opinion, the burden shifted to Edwins to secure the testimony of Danos to disprove their testimony—especially since there is no testimony in the record that Edwins was in fact informed by anyone that Danos was authorized by Thomas to help him secure an attorney.

Likewise, we conclude that the burden was on Edwins to produce Johnson as a witness. An indicia of solicitation arises from the circumstance that an attorney’s paid employee calls upon a claimant who denies that he had authorized anyone to help him secure an attorney. The attorney cannot, after acting through such a non-lawyer employee (whom the evidence indicates solicited employment from a non-lawyer), then claim that his responsibility for the employee’s act is not proved. He cannot contend the Association failed in its burden of proof because it did not call the attorney’s former employee as a witness to present a possibly exculpatory explanation. (The evidence here shows that Ed-wins could have, but did not, subpoena the employee, Johnson. We are not faced with a situation where the testimony, exculpatory or inculpatory, of the witness was unavailable.)

We therefore conclude that solicitation was proved. We also conclude that, under all the circumstances shown by the evidence, Edwins should be suspended from the practice of law for ninety days from the date of finality of this decision. In the first disciplinary instance before us of improper (near) solicitation, we merely imposed a reprimand. Louisiana State Bar Association v. Rutledge, 270 So.2d 535 (La.1972). The conduct was not, however, held to constitute so--licitation. (Should further violations occur subsequent to the finality of this decision, we shall consider imposing a sanction more severe than the present one, if the facts of the solicitation so warrant.)

Specification 1(b): Failure to Account to Client for Proceeds of Settlement

The evidence is convincing that, after a day of trial in federal court, Thomas agreed with Edwins that his claim should be settled for $9,000. The evidence had not proved as strong a case as hoped. At this time, Thomas knew without dispute that from these proceeds he would have to pay Edwins a fee of at least $3,000, and also that, deducting previous advances made to him, he would receive no more than $3,000 net. Tr. 39-40, hearing of July 17.

At the time, Thomas was not dissatisfied. However, when he and his wife appeared at Edwins’ office a few days later to complete the settlement, the account of advances and expenses showed that he was entitled to receive a net rounded off at $2,500. He was not satisfied with this as the balance due him.

Edwins himself was not in the office at the time. Edwins’ partner, however, offered to withhold the disbursement until Edwins returned. Nevertheless, Thomas accepted the check for $2,500 as representing the net due him. Thomas’s wife claims that, at the time, she requested an itemized account; but the preponderance of the evidence is otherwise.

We may here say that the undisputed proof shows that no money due to Thomas was withheld from him by Edwins. Under cross-examination, he admitted receiving all sums shown on Edwins’ books as advances made to him or for his account.

Nevertheless, Edwins’ carelessness in accounting to his client for the proceeds of the settlement should be reprimanded. Thomas did not, in fact, receive an accounting until the disciplinary hearing below. If an itemized statement had been furnished the client at the time of the settlement, his client’s dissatisfaction and his unfounded suspicion that he had not received all amounts due him might have been avoided. An attorney’s conduct should avoid even the appearance of impropriety.

Specification 1(c): Advances to Thomas

Edwins frankly admitted that he had advanced to Thomas on various occasions sums of money ($20, $50, $30, $10, etc.), which totaled $894 in all. Additionally, he had bought tires ($30.41), paid three car notes ($67.50 each), paid two other finance notes ($31.04 each), and arranged for and paid for Thomas’s hospitalization and operation ($579.25) in connection with a non-accident related painful condition. In the latter instance, he had also paid Mrs. Thomas’s hotel bill ($36.04), so that she could be near Thomas during his hospitalization.

Also, not long after Thomas had retained him, Edwins had arranged for Thomas to receive a $650 loan from a finance company (partially owned by Edwins). Since Thomas did not pay it when due, Edwins paid it in its then due amount of $910.

Thomas admitted that, upon his request and on his seriatim pleas that he was in need, he had been able to receive about $2,000 in cash advances from Edwins. Under cross-examination, he also conceded that, at his request, the other nonlegal expenses shown (tires, car notes, hospitalization, wife’s hotel room, etc.) had also been paid by Edwins.

In summary, the final accounting of Edwins to Thomas showed that he had advanced $4,210 in all, of which $1,480.01 was for direct expenses of preparing for trial.

However, a total of $2,733.12 (including $579.25 for hospitalization and surgery for a non-accident related illness) represents a type of advance which is arguably prohibited by the letter of Disciplinary Rule 5-103 (B): “While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client, except that the lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.” (Italics ours.)

Nevertheless, under the circumstances here shown, we are unwilling to hold that the spirit or the intent of the disciplinary rule is violated by the advance or guarantee by a lawyer to a client (who has already retained him) of minimal living expenses, of minor sums necessary to prevent foreclosures, or of necessary medical treatment.

In the first place, the disciplinary rule was adopted to implement Canon 5: “A lawyer should exercise independent professional judgment on behalf of a client.” In interpreting the disciplinary rule, we should do so in the light of the canon and the ethical considerations on which it is based. At least two of the ethical considerations point out policies which permit lawyer-client fee arrangements or advances when they represent the only practicable method by which a client can enforce his cause of action.

If an impoverished person is unable to secure subsistence from some source during disability, he may be deprived of the only effective means by which he can wait out the necessary delays that result from litigation to enforce his cause of action. He may, for reasons of economic necessity and physical need, be forced to settle his claim for an inadequate amount.

We do not believe any bar disciplinary rule can or should contemplate depriving poor people from access to the court so as effectively to assert their claim. Cf, Canon 2: “A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.” Nor do we see how a lawyer’s guarantee of necessary medical treatment for his client, even for a non-litigation related illness, can be regarded as unethical, if the lawyer for reasons of humanity can afford to do so.

The advances and guarantees here made are, in our opinion, more akin to the authorized advance of “expenses of litigation” than to the prohibited advances made with improper motive to buy representation of the client or by way of advertising to attract other clients. We note that the disciplinary rule permitting the advance of “expenses of litigation” includes certain instances as illustrative, but that it does not clearly exclude other expenses similarly necessary to permit the client his day in court, such as arguably are the present.

Additionally, however, if the intent of the disciplinary rule were indeed to prohibit the type of advances and guarantees here made, we have some doubt as to its constitutionality. In Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), the United States Supreme Court struck down a state regulation of the practice of law, holding that such regulation could not unreasonably handicap a claimant’s right to petition the courts nor unreasonably inhibit the enforcement of a federal statutory right. For similar reasons, a court-adopted bar disciplinary rule which places an unreasonable burden upon an individual’s right to enforce claims allowed him by law might be deemed violative of the access to courts guaranteed to all our people by our state constitution.

In our opinion, the better view of those decisions which applied the former canons of ethics (replaced by the present Code of Professional Responsibility) was that the advancement of living expenses did not constitute a violation of professional responsibility, so long as: (a) the advances were not promised as an inducement to obtain professional employment, nor made until after the employment relationship was commenced; (b) the advances were reasonably necessary under the facts; (c) the client remained liable for repayment of all funds, whatever the outcome of the litigation; and (d) the attorney did not encourage public knowledge of this practice as an inducement to secure representation of others. See: Annotation, Attorneys— Clients’ Expenses, 8 A.L.R.3d 1155 (1966); Strelow, Loans to Clients for Living Expenses, 55 Calif.L.Rev. 1419 (1967).

A similar interpretation of the present Code of Professional Responsibility may be more difficult in view of the different wording of the present-day disciplinary rule at issue.. Nevertheless, for the reasons earlier stated, we believe that it is justified. At least under the circumstances here shown, the spirit and intent of the canon and the ethical considerations involved is similarly not a violation of professional conduct subject to disciplinary penalty. It is more akin to the permitted advances of expenses of litigation than to the prohibited advances to purchase an interest in a law suit or to induce a client to retain the lawyer.

In the present case, the evidence shows that, between June 1970, (when Edwins was retained by Thomas) and June 1972, (when the case was settled), some twenty-four months later, Edwins advanced to Thomas $2,152.87 of living expenses (including car notes, etc.), plus $579.25 for needed medical attention. During this same period of time, Thomas drew $3,472 in maintenance and cure, which was also available for the client’s living expenses.

At the time Thomas retained Edwins, he was not receiving maintenance and cure. Without charge to Thomas, Edwins secured the payment of maintenance and cure in the amount of $56 weekly. Also, likewise without charge to Thomas, Edwins handled various debt negotiations and other legal advisory and representational services not related to the accident case for which he had been retained.

During that same two-year period, a two-person non-farm family with income below $5,422 (a little below $2,716 per year average) fell below the poverty level. The maintenance and cure of $3,472 received by Thomas during this period was insufficient even for the minimum subsistence level of the poorest people in our economy; and Thomas, a high-paid seaman (i. e., an amphibious oil worker) was used to a higher standard of living. (He had, for instance, car notes of $67.50 monthly to meet.) We cannot say that Edwins’ advances of $2,152.67 living expenses during this period, or of $579.25 necessary medical treatment, was unreasonable or of a prohibited nature under the standards above set forth.

We should also note that Thomas testified that, at the time he retained Edwins, he told him he needed some money, and that Edwins said he would try to help him. (A few days later, when Thomas came to Edwins’ office in Baton Rouge, Edwins arranged for a finance company to loan Thomas some money to take care of pressing needs.) Edwins, however, denies that any such inducement was made to obtain his retainer by Thomas. This denial seems to be corroborated by Mrs. Thomas’s failure to recollect any such discussion. See Tr. 74-76, hearing of July 17.

We therefore find Edwins guilty of no professional misconduct requiring disciplinary action with regard to the minimal advances made by him to Thomas.

Specification 2: Advances to Selser

However, with regard to the remaining specification, which charges improper advances to Selzer, we do find improper conduct.

Selzer, a seaman, was injured in February 1972. Being dissatisfied with an attorney he had earlier retained, he sent for Edwins in late February to visit him while still in the hospital. He there retained Edwins as his attorney.

Edwins represented Selzer for approximately three months. During that time, Edwins filed a suit for him, made at least two motion appearances, and spent about fifty hours in his service. Edwins finally relinquished Selzer as a client, because of Selzer’s repeated demands for money advances. Between February 27 and April 17, however, Edwins had advanced Selzer $756.95 in monied loans (in addition to $303.32 paid out for normal expenses of litigation).

These cash advances violate the prohibition of Disciplinary Rule 5-103 (B). Unlike the advances made to Thomas (Specification 1(c) above) for necessary living and medical expenses, no justification is shown for them. In the absence of such justification, we apply the literal wording of the rule and presume that the advances were improperly made with the intention of securing or keeping legal representation of Selzer.

We therefore must hold that the cash advances by Edwins violated the disciplinary rule forbidding them. For this violation, we will order his suspension from the practice of law for a period of thirty days, this suspension to run concurrently with his suspension for soliciting his own employment by Thomas.

Nevertheless, in fairness to the respondent Edwins, the implication from Selzer’s testimony is that periodic advances not necessarily based on need are a common practice in maritime litigation. High-paid seamen, unable on maintenance and cure during disability to maintain their style of life, apparently demand and receive rather large advances pending final disposition of such high-award litigation.

Selzer’s testimony is open to the construction that, in the absence of such advances, he would not retain a lawyer. He testified, for instance, that the lawyer he retained to replace Edwins had advanced him $4,000 during the year prior to settlement. (We do not mean to imply that, under the guidelines above set forth, this latter necessarily was an advance prohibited by the rule, as not being a reasonable “expense of litigation”.)

In a sense, the client’s dissatisfaction with Edwins and the consequent disciplinary proceedings resulted from Edwins’ refusal to make any more advances and the resultant termination of Edwins’ representation of him. It might be said that the present complaint results, not from Ed-wins’ violation of the disciplinary rule, but because he refused to continue to violate it.

The troublesome query presented by Selzer’s testimony is whether the rule prohibiting advances, even under the less restrictive interpretation we place upon it, is practicably enforceable (except selectively, as here). The long-customary practices of maritime law lead to expectations of such services to the clients whom the bar serves in this area of litigation. Selzer’s testimony implies that, if Louisiana lawyers do not meet the need and expectation established by this ancient custom, lawyers from other areas will.

But neither the moral desireability nor the practical difficulties of the rule are before us now. Nor is any issue of either modification or else less-selective enforcement of the rule as now adopted, which the respondent’s conduct violated. For this deliberate and unexcused violation, we deem disciplinary action required, as set forth above.

Decree

For the reasons above set forth, we find that the respondent R. C. Edwins violated applicable disciplinary rules (a) by soliciting his own employment in the Thomas case, (b) by negligently failing to account to his client in that case for the disbursement of the proceeds of the settlement, and (c) by improperly advancing funds to his client in the Selzer case for the purpose of inducing the client’s employment of him as the attorney in the case. For violation (a), we suspend the respondent from the practice of the law for a period of ninety days from the date of finality of this decision; for violation (b), we reprimand him for unprofessional conduct which tends to bring disrepute upon the legal profession; and for violation (c), we suspend him from the practice of the law for a period of thirty days from the date of finality of this decision, said suspension to run concurrently with the suspension for violation (a). The respondent is cast with all costs of these disciplinary proceedings.

SUSPENSION AND REPRIMAND ORDERED.

SUMMERS, J., concurs in the result.

DIXON, J., dissents with reasons.

DENNIS, J.,

dissents for the reasons assigned by DIXON, J.

DIXON, Justice

(dissenting).

I respectfully dissent.

It seems to me that there is no question about the violation of the disciplinary rules —violations which we should not condone. The disciplinary rules should be enforced in such a way as to give them meaning and significance in regulating the conduct of members of the bar.

      . In addition to court costs, investigation costs, the expenses of medical examination for purposes of trial, and the costs of obtaining and presenting evidence, certain other out-of-pocket expenses were charged to Thomas: telephone calls, out-of-town travel at twelve cents per mile, and the hotel expenses of the out-of-town trial. The contract between Thomas and Edwins was silent with regard to liability for the latter (about $500) expenses. In the absence of other contractual arrangement, we do not find irregularity in charging such expenses to the client’s account, to be reimbursed upon final settlement (and they are shown by the present record to be reasonable) ; but the better practice might well be to have liability for such latter-type out-of-pocket expenses to be clearly assumed or not by the client at the time of the retainer, so as to prevent misunderstanding and dissatisfaction such as here resulted.

      . Ethical Consideration 5-7 provides: “The possibility of an adverse effect upon the exercise of free judgment by a lawyer on behalf of his client during litigation generally makes it undesirable for the lawyer to acquire a proprietary interest in the cause of his client or otherwise to become financially interested in the outcome of the litigation. However, it is not improper for a lawyer to protect his right to collect a fee for his services by the assertion of legally permissible liens, even though by doing so he may acquire an interest in the outcome of litigation. Although a contingent fee arrangement gives a lawyer a financial interest in the outcome of litigation, a reasonable contingent fee is ‘permissible in civil eases beemse it may be the only means by which a layman can obtain the services of a lawyer of his choice. But a lawyer, because he is in a better position to evaluate a cause of action, should enter into a contingent fee arrangement only in those instances where the arrangement will be beneficial to the client.” (Italics ours.)
      Ethical Consideration 5-8 provides: “A financial interest in the outcome of litigation also results if monetary advances are made by the lawyer to his client. Although this assistance generally is not encouraged, there are instances when it is not improper to make loans to a client. For example, the advancing or guaranteeing of payment of the costs and, expenses of litigation by a lawyer may he the only way a client can enforce his cause of action, but the ultimate liability for such costs and expenses must be that of the client.” (Italics ours.)

      . See La.Const, of 1974, Art. 1, Section 22: “Access to Courts. All courts shall be open, and every person shall have an adequate remedy by due process of law and .justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.” See also La.Const. of 1921, Art. 1, Section 6.

      . The poverty levels for 1970-1972 are as follows:
      YEAR TWO-PERSON FAMILY ONE-PERSON
      Non-Farm Farm Non-Farm Farm
      1970 $2,604 $2,218 $2,010 $1,727
      1971 1972 $2,716 $2,808 $2,317 $2,393 $2,098 SO.IfiS $1,805
      Bureau of the Census Current Population Reports: Consumer Income, Charaeter-istics of the Low Income Population, Table N, p. 20 (1970); Table M, p. 18 (1971); and Table A-2, p. 143 (1972).


author: DIXON, Justice.

text:
    STATE of Louisiana ex rel. Nolin Robert CLAYTON v. C. Murray HENDERSON.
    No. 56902.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Vincent Wilkins, Jr., Director, Roland T. Huson, III, Appellate Counsel, Baton Rouge, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ralph E. Tyson, Staff Atty., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., Baton Rouge, for defendant-respondent.
   DIXON, Justice.

We granted writs in this case because it involved the same subject matter as that in another application (McCormick et al. v. Hunt, La., 328 So.2d 140, No. 56907) from the same district in which a conflicting ruling has been made. In this case, the trial judge has held that the Department of Corrections need not award prisoners “good time” credits for “jail time” (that is, time spent in parish prison after arrest, but prior to conviction and sentence).

For the reasons assigned in No. 56907 of this court’s docket, rendered this date, the judgment of the trial court, rejecting the demands of petitioner, is affirmed.


text:
    STATE of Louisiana v. Richard ANGELICO.
    No. 57130.
    Supreme Court of Louisiana.
    Nov. 25, 1975.
   In re: Richard Angelico, applying for writs of certiorari, prohibition, mandamus and for a Stay Order.

Writ denied. The applicant has no right of appeal. See State ex rel. Dowling v. Ray, 150 La. 1030, 91 So. 443 (1922). His sole right of review was by application to this Court’s supervisory jurisdiction which we have previously disposed of.


text:
    STATE of Louisiana in the Interest of Clifton Antoine JOSHUA.
    No. 57486.
    Supreme Court of Louisiana.
    Feb. 6, 1976.
   In re: State, through District Attorney, Parish of Orleans applying for Writs of Certiorari, Mandamus and Prohibition. 327 So.2d 429.

Writ denied. The ruling of the Court of Appeal, attached hereto, is correct.


text:
    STATE of Louisiana v. Harry COLE.
    No. 57553.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: State of Louisiana applying for Writs of Certiorari, Mandamus and Prohibition.

Writ granted. (See Order.)

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Rudolph F. Becker, III, Judge of the Criminal District Court for the Parish of Orleans to transmit to the Supreme Court of Louisiana, on or before the 2nd day of April, 1976, the record in duplicate or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Paul E. BOETTCHER.
    No. 57558.
    Supreme Court of Louisiana,
    March 12, 1976.
   In re: Paul E. Boettcher, applying for writ of Habeas Corpus.

Writ granted. (See Order).

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Robert E. Johnson, Judge of the Sixteenth Judicial District Court for the Parish of St. Mary to transmit to the Supreme Court of Louisiana, on or before the 2nd day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Warren NARCISSE v. 23RD JUDICIAL DISTRICT COURT, PARISH OF ST. JAMES.
    No. 57381.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Warren Narcisse applying for Writ of Mandamus.

Writ denied. The matter is moot. See trial court order of February 24, 1976, filed in this court March 10th.


text:
    STATE of Louisiana v. Rex WILHITE.
    No. 57600.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Rex Wilhite applying for Writs of Certiorari, Prohibition and Mandamus.

Writ denied. There is no merit in the application.


text:
    STATE of Louisiana v. L. J. LEE.
    No. 57569.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: L. J. Lee applying for Writs of Certiorari, Prohibition and Mandamus.

Writ granted. It is ordered that the trial of the defendant be held within sixty (60) days from date of this order unless the trial judge shows cause to the contrary within 14 days.


text:
    Ronald C. McGUIRE v. CENTRAL LOUISIANA ELECTRIC CO., INC.
    No. 57567.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Ronald C. McGuire, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides, 324 So.2d 890.

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


text:
    Benny L. CRAIGHEAD and Lula R. Craighead v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES.
    No. 57519.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Benny L. Craighead and Lula R. Craighead, applying for Certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 324 So.2d SS4.

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


text:
    Lawrence GALLIN and Donald Green v. The TRAVELERS INSURANCE COMPANY.
    No. 57521.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Travelers Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 323 So.2d 908.

Writ denied. On the facts found by the Court of Appeal, we cannot say that the trial judge abused his discretion with respect to the awards made and affirmed by the Court of Appeal.


text:
    Dianne Terrance Casimere, widow of Thomas CASIMERE v. RYDER TRUCK RENTAL, INC., et al. Walterine Pilart JASPER et al. v. COCA-COLA BOTTLING COMPANY OF LA. LTD. et al.
    No. 57530.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Dianne Terrance Casimere, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 324 So.2d 855, 324 So. 2d 865.

Writ denied. We cannot say the trier of fact abused its much-discretion. Civil Code Article 1434(3).


text:
    Kenneth W. MEYERS v. Barbara Lynn Duhe MEYERS.
    No. 57538.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Kenneth W. Meyers applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany, 324 So.2d 562.

Not considered. Not timely filed.


text:
    William J. GUSTE, Jr., Attorney General, State of Louisiana, ex rel. Mrs. Mary Pane JOHNSON, et al. v. Joseph H. BURRIS, Legislative Auditor.
    No. 57533.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Joseph H. Burris applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 324 So.2d 525.

Writ denied. No error of law.


text:
    Nick and Marie CUCINELLA v. PENINSULAR FIRE INSURANCE COMPANY.
    No. 57541.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Nick and Marie Cucinella, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne. 324 So.2d 616.

Application denied. The result is correct.


text:
    STATE of Louisiana ex rel. Ronald Glenn MOUTON v. JUDGE, I5TH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE.
    No. 57542.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Ronald Glenn Mouton applying for Writ of Mandamus and Habeas Corpus.

Writ denied. Since applicant’s conviction has been affirmed, and the decision is final, the application is denied.


text:
    David CONNER v. The TRAVELERS INSURANCE COMPANY et al.
    No. 57557.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: David Conner applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 324 So.2d 903.

Application denied. There is no error of law in the judgment of the court of appeal.


text:
    Seymour X. GUILBEAU v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.
    No. 57565.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: St. Paul Fire and Marine Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 325 So.2d 395.

Application denied. No error of law in the court of appeal judgment.


text:
    STATE of Louisiana v. Lawrence E. KEITH.
    No. 57566.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Lawrence E. Keith, applying for writs of Certiorari, Prohibition, Mandamus and/or Review.

Writ denied. No abuse of discretion by the trial court.


text:
    PLACID OIL COMPANY v. Watson TAYLOR et al.
    No. 57570.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Placid Oil Company applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 325 So.2d 313.

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


text:
    Alfred CHELETTE v. The TRAVELERS INSURANCE COMPANY.
    No. 57571.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: The Travelers Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline. 324 So.2d 915.

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


text:
    STATE of Louisiana ex rel. George FOURNETTE v. C. Paul PHELPS, Warden.
    No. 57573.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: George Fournette applying for Writ of Certiorari and Habeas Corpus.

Writ denied. No error of law in the ruling of the trial judge.


text:
    STATE of Louisiana ex rel. Norris J. FANGUY, Jr. v. Cyrus “Bobby” TARDO, Sheriff of Lafourche Parish.
    No. 57612.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Norris J. Fanguy, Jr., applying for writ of mandamus.

Writ denied. In view of the petitioner’s allegations in an exhibit attached to the application, indicating that the charges have been set for trial, there is no merit to the contentions which moreover are repetitious to those previously made and acted on by this Court. See 325 So.2d 616, denied February 3, 1976.,


text:
    STATE of Louisiana ex rel. Cyril NELSON v. C. Paul PHELPS, Warden.
    No. 57574.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: Cyril Nelson, applying for writ of Certiorari and Habeas Corpus.

Writ denied. No error of law in the ruling of the trial judge.


text:
    STATE of Louisiana v. James WILLIAMS.
    No. 57660.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: James Williams applying for Remedial Writs.

Writ denied. Petitioner has an adequate remedy by appeal.


text:
    STATE of Louisiana in the Interest of Clifton Antoine JOSHUA.
    No. 57642.
    Supreme Court of Louisiana.
    March 12, 1976.
   In re: State of Louisiana applying for Writ of Certiorari. 327 So.2d 429.

Writ denied. The case is moot.


text:
    STATE of Louisiana v. William ISOM.
    No. 57546.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Harry F. Connick, District Attorney, Parish of Orleans, applying for writ of certiorari.

Writ denied. On the facts found by the trial judge, the showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    Donald G. JONES and Gloria Jones, Individually and as the Natural Tutors of their minor son Donald G. Jones, Jr. v. CITY OF KENNER et al.
    No. 57589.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Donald G. Jones and Gloria Jones, individually and as the Natural Tutors of their minor son, Donald G. Jones, Jr., applying for supervisory writs of cer-tiorari, prohibition and mandamus.

Writ granted. (See order).

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Wallace C. LeBrun Judge of the 24th Judicial District, Court for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 9th day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 21st day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Donald BRIGGS v. C. Paul PHELPS, acting Warden, Louisiana State Penitentiary.
    No. 57572.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Donald Briggs applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Application denied. The trial court has acted on the application, denying it on Feb. 26, 1976.


text:
    STATE of Louisiana ex rel. Thomas C. MITCHELL v. WARDEN, LOUISIANA STATE PENITENTIARY.
    No. 57575.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Thomas C. Mitchell applying for Writ of Certiorari and Habeas Corpus.

Writ denied. Several of relator’s claims of error were disposed of on his appeal. State v. Mitchell, 290 So.2d 829. The remaining allegations are without merit.


text:
    STATE of Louisiana ex rel. Harold J. HAYES v. Matthew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 57577.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Harold J. Hayes applying for Writ of Mandamus.

Writ denied. The trial judge having acted on the applicant’s petition in the trial court, this application is moot.


text:
    Calvin LAMBERT v. HEIRS OF Joseph ADAMS et al.
    No. 57583.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Calvin Lambert, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Martin. 325 So.2d331.

Application denied. There is no error in the judgment of the Court of Appeal.


text:
    Nathaniel J. ALLEN v. GEORGIA CASUALTY & SURETY COMPANY.
    No. 57590.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Nathaniel J. Allen applying for certiorari, or writ of review, to the-Court of Appeal, Third Circuit, Parish of Beauregard. 324 So.2d 900.

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


text:
    Mark Stephen ARABIE v. The TRAVELERS INSURANCE COMPANY et al.
    No. 57598.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Mark Stephen Arabie applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 325 So.2d 340.

Writ denied. On the facts found, the result is correct.


text:
    STATE of Louisiana v. John G. McMULLIN.
    No. 57606.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: John G. McMullin applying for writs of certiorari, prohibition, mandamus and stay order.

Application denied. The showing made does not warrant the exercise of our jurisdiction.


text:
    Hubert MONK et ux. v. INSURANCE CO. OF NORTH AMERICA et al.
    No. 57613.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Borden, Inc. and Insurance Co. of North America, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vernon. 324 So. 2d 880.

The application is denied. There is no error as to this applicant in the Court of Appeal judgment.


text:
    Hubert MONK et ux. v. INSURANCE CO. OF NORTH AMERICA et al.
    No. 57614.
    Supreme Court of Louisiana.
    March 16, 1976.
   In re: Hubert Monk, et ux., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vernon.

Application denied. We cannot say the result is incorrect as to this applicant.


text:
    STATE of Louisiana ex rel. James WILLIAMS v. Hon. Charles WARD, Judge, Section “A” Criminal District Court, Parish of Orleans.
    No. 57474.
    Supreme Court of Louisiana,
    March 19, 1976.
   In re: James Williams applying for Writ of Mandamus.

Application denied; the petition was withdrawn in the trial court on February 20, 1976.


text:
    STATE of Louisiana v. Mike BAKER.
    No. 57709.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Mike Baker applying for Writs of Certiorari, Prohibition and Mandamus.

Not considered. The rules of this court have not been complied with. Execution of applicant’s sentence is stayed until March 29, 1976 and applicant is ordered released from custody upon furnishing bail in an amount to be fixed by the trial judge in accordance with law. In the absence of a timely and proper application on or before March 29, 1976, the stay order hereby granted shall automatically be set aside, bail cancelled and execution of the judgment ordered.


text:
    STATE of Louisiana ex rel. Simon SMITH, Jr. v. W. A. BOOK, Clerk of Court, Seventh Judicial District Court, Catahoula Parish.
    No. 57450.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Simon Smith, Jr., applying for writ of mandamus.

Writ refused. In view of advice that the trial judge has directed that relator be given jail time credit (letter February 19, 1976), this matter is now moot.


text:
    Cliff PROBST v. The CITY OF N. O. et al.; Harry B. SCHMIDT, Jr. v. The CITY OF NEW ORLEANS et al.
    No. 57594.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Harry B. Schmidt, Jr., and Mrs. Ethel Von Behren, widow of Cliff Probst, Mrs. Marilyn Probst Maloney and Cliff L. Probst, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 325 So.2d 665, 325 So.2d 671.

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


text:
    STATE of Louisiana v. Samuel A. MADDIE.
    No. 57563.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Samuel A. Maddie applying for Writs of Certiorari, Prohibition and Mandamus.

Writ denied. Circumstantial evidence justified denial of directed verdict.


text:
    Cliff PROBST and Harry B. Schmidt, Jr. v. The CITY OF NEW ORLEANS et al.
    No. 57595.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: City of New Orleans and City Council of N. O., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 325 So. 2d 665, 325 So.2d 671.

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


text:
    Cliff PROBST and Harry B. Schmidt, Jr. v. The CITY OF NEW ORLEANS et al.
    No. 57602.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Louisiana Tax Commission and the State of Louisiana, applying for certio-rari, or writ of review, to the Court of Appeal, 4th Circuit, Parish of Orleans.

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


text:
    WALGREEN LOUISIANA CO., INC., et al. v. CITY OF NEW ORLEANS et al.
    No. 57603.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Louisiana Tax Commission and State of Louisiana, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 325 So. 2d 673.

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


text:
    WALGREEN LOUISIANA COMPANY, INC., et al. v. CITY OF NEW ORLEANS et al.
    No. 57618.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: City of New Orleans, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 325 So.2d 673.

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


text:
    STATE of Louisiana v. Alejandro MENA et al.
    No. 57653.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: State of Louisiana applying for Writ of Certiorari, Prohibition and Mandamus.

Writ granted. (See Order.)

The petitioner of the relator in the above entitled and numbered case having been duly considered.

It is ordered that a writ of certiorari issue herein, directing the Honorable Alvin V. Oser, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 2nd day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976 at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Succession of Joseph Isom FUSELIER.
    No. 57601.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Grace McGee Fuselier, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline. 325 So.2d 296.

Writ refused. On the facts found by the Court of Appeal, the result is correct. The issue is factual.


text:
    GUARANTY BANK AND TRUST CO. OF ALEXANDRIA, Trustee v. NATIONAL LIFE INSURANCE COMPANY.
    No. 57615.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: National Life Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides.

Writ denied. On the facts found by the court of appeal, there is no error of law in the judgment.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Jessie SMITH.
    No. 57616.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Jessie Smith, applying for Certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchi-toches.

Writ denied. On the facts found, the result is correct.


text:
    FORET & ASSOCIATES, INC. v. STANDARD FITTINGS CO.
    No. 57620.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Standard Fittings Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 324 So.2d 901.

Writ denied. On the facts found by the court of appeal, there is no error of law in the judgment complained of.


text:
    MID-SOUTH CONTRACTORS, INC. v. J. E. RATCLIFF.
    No. 57622.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Mid-South Contractors, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 325 So.2d 375.

Application denied. No error of law in the court of appeal judgment.


text:
    Frank SAVOY v. ACTION PRODUCTS COMPANY, INC., et al.
    No. 57623.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Frank Savoy applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia. 324 So.2d 921.

Writ denied. The judgment is correct.


text:
    STATE of Louisiana v. George LANGE.
    No. 57626.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: George Lange applying for Writ of Review.

Writ denied. There is some evidence to support the conviction by the trier of fact.


text:
    STATE of Louisiana ex rel. Willie RAVEN v. C. Murray HENDERSON, Warden, Louisana State Penitentiary.
    No. 57633.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Willie Raven applying for Writs of Habeas Corpus, Mandamus, Prohibition and other Remedial Writs.

Writ refused. No merit in application.

TATE, J., dissents from the denial.


text:
    STATE of Louisiana ex rel. Ferdinand R. MATHIEU, Jr. v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57635.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Ferdinand R. Mathieu, Jr. applying for Writ of Habeas Corpus.

Writ denied. In view of thorough colloquy at the time of the plea of guilty. See transcript of Feb. 21, 1973, we do not find merit in the petitioner’s allegations.


text:
    STATE of Louisiana ex rel. Horace HECTOR, Jr. v. JUDGE, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 57646.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Horace Hector, Jr., applying for writ of mandamus.

Writ denied. In view of trial court’s judgment of March 11th, the application presents no grounds for relief.


text:
    STATE of Louisiana ex rel. James Oliver RAPHIEL v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57647.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: James Oliver Raphiel, applying for writ of habeas corpus.

Application denied. The record of this case on appeal (State v. Frierson, 302 So. 2d 605) shows applicant’s contentions are without merit.


text:
    Ben BAGERT v. James A. MOREAU et al.
    No. 57649.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Louisiana Power and Light Co., applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 325 So.2d 702.

Writ denied. Judgment of the Court of Appeal is not final.


text:
    STATE of Louisiana v. Clarence WASHINGTON.
    No. 57655.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Clarence Washington Applying for Supervisory Writ of Certiorari.

Writ denied. The trial judge properly denied the directed verdict. There was evidence from which it could conclude guilt.


text:
    FIDELITY STANDARD LIFE INSURANCE CO. et al. v. FIRST CITY FINANCIAL CORP. et al.
    No. 57656.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: The First National Bank and Trust Co., Vidalia, Georgia applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 325 So.2d 879.

Application denied. On the facts found by the court of appeal, its judgment is correct.


text:
    John F. AUSTIN, Jr. v. Jack PERRY.
    No. 57661.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Jack Perry, applying for Certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 325 So.2d 722.

Writ refused. The case having been remanded for further proceedings the judgment is not final.


text:
    Ben BAGERT v. James A. MOREAU et al.
    No. 57670.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: New Orleans Public Service, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 32S So.2d 702.

Writ denied. Judgment of the court of appeal is not final.


text:
    Mrs. Elvera Wilson ENTREKIN v. Wendall E. ENTREKIN.
    No. 57667.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Elvera Wilson Entrekin, applying for Certiorari, or writ of review, to the Court of Appeal,'Fourth Circuit, Parish of St. Bernard. 325 So.2d 775.

Application denied. There is no error in the judgment of the Court of Appeal.


text:
    Murray J. STEWART v. Alfred J. ZELLER and Sentry Insurance Co.
    No. 57662.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Murray J. Stewart applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 325 So.2d 842.

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


text:
    Ben BAGERT v. James A. MOREAU et al.
    No. 57671.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Councilmen of City of New Orleans, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 325 So.2d 702.

Writ denied. Judgment of the Court of Appeal is not final.


text:
    STATE of Louisiana ex rel. Harold J. VINCENT v. Hon. James C. TERRELL, Judge, Division “A”, 30th Judicial District Court, Vernon Parish, Leesville, Louisiana.
    No. 57679.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Harold J. Vincent, applying for writ of mandamus and remedial writs.

Writ denied. District judge has acted on relator’s application stating that no further extensions of time will be granted to lodge appeal in this court.


text:
    STATE of Louisiana ex rel. Norman CLARK v. Elayn HUNT, Director, Department of Corrections.
    No. 57524.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Norman Clark applying for Writs of Certiorari, Mandamus and Prohibition.

Granted. (See Order.)

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

It is ordered that writ of certiorari issue herein, directing the Honorable Daniel W. LeBlanc, Judge of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 9th day of April, 1976 the record in duplicate, or a certified copy of the record in dupli-case, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Kenneth KINNEMANN and Paul L. Sahuque.
    No. 57581.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Kenneth Kínnemann and Paul L. Sahuque applying for Supervisory Writs.

Granted. (See Order).

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Rudolph F. Becker, III, Judge of the Criminal District Court, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 9th day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Paula L. SIERRA.
    No. 57605.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re State of Louisiana, applying for writ of certiorari.

Granted. (See order).

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Frank A. Marullo, Jr., Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 9th day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 25th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Huey Pierce LONG.
    No. 57682.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Huey Pierce Long, applying for writ of habeas corpus.

Granted. The trial judge is ordered to conduct an evidentiary hearing on applicant’s claim of counseless conviction. In all other respects the writ is denied.


text:
    Emile LOETZERICH v. TEXAS PACIFIC-MISSOURI PACIFIC TERMINAL RAILROAD OF NEW ORLEANS et al.
    No. 57669.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: St. Louis-San Francisco Railway Company applying for certiorari, writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 325 So.2d 626.

Writ denied. No error in the result.


text:
    STATE of Louisiana ex rel. Prentice ROBINSON, Jr. v. HON. JUDGE PRESIDING, FIRST JUDICIAL DISTRICT COURT.
    No. 57648.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Prentice Robinson, Jr., applying for writ of Mandamus.

Writ denied. Applicant makes no adequate showing to warrant the exercise of our jurisdiction. While trial judge did not specifically rule on the motion to expunge, there is no merit in such motion.


text:
    STATE of Louisiana v. Debra H. ALANIZ and Allen J. Robichaux.
    No. 57672.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Debra H. Alaniz & Allen J. Rob-ichaux applying for Writs of Habeas Corpus, Certiorari, Prohibition and Mandamus.

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


text:
    Mrs. Jennie Barksdale GILLASPIE v. Dr. and Mrs. Ernest J. MITTELBRONN.
    No. 57673.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Mrs. Joan Rulis Mittelbronn applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 326 So.2d 538.

Writ refused. Since the case has been remanded for further evidence, the judgment is not final.


text:
    STATE of Louisiana ex rel. Bobby Joe FABIAN v. C. Paul PHELPS, Warden.
    No. 57681.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Bobby Joe Fabian, applying for writs of mandamus and habeas corpus.

Writ refused. Since trial judge denied relator’s petition on March 18, 1976, this application is now moot.


text:
    STATE of Louisiana ex rel. Henry MARTIN v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57680.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Henry Martin, applying for writs of certiorari and habeas corpus.

Writ denied. The issues presented in this application were considered and disposed of previously by this Court after an evidentiary hearing in the district court. See 318 So.2d 45.


text:
    STATE of Louisiana v. Lloyd W. KINCHEN and Linda Selby Gucwa.
    No. 57721.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: Lloyd W. Kinchen and Linda Selby Gucwa applying for Writs of Certio-rari, Prohibition, Mandamus and Stay Order.

Writ refused. The showing made in insufficient to warrant the interruption of the orderly proceedings in the trial court.


text:
    STATE of Louisiana ex rel. William DOYLE v. C. Paul PHELPS.
    No. 57725.
    Supreme Court of Louisiana.
    March 23, 1976.
   In re: William Doyle applying for Writs of Habeas Corpus and/or Remedial Writs.

Application denied. This is the same as # 57,609, on which we ruled March 16, 1976.


text:
    Edwin W. EDWARDS, Governor of Louisiana v. Mary Evelyn PARKER, Treasurer of Louisiana.
    No. 57742.
    Supreme Court of Louisiana.
    March 25, 1976.
   In re: Edwin W. Edwards, Governor of Louisiana applying for Writ of Certiorari, or Review.

Writ granted in this case (# 190,239 on the docket of the 19th Judicial District Court, Parish of East Baton Rouge) and in the case with which the case is consolidated in the district court # 185,033, Fen-ner v. Parker. (See order).

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

It is ordered that a writ of certiorari issue herein, directing the. Honorable Luther F. Cole, Judge of hte Nineteenth Judicial District Court, for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 2nd day of April, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 5th day of April, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


author: REDMANN, Judge.

text:
    NAPKO CORPORATION v. MARSHALL-KOEHL, INC., et al.
    No. 7135.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Refused June 9, 1976.
    A. W. Wambsgans, Cronvich & Wambs-gans, Metairie, for Napko Corp.
    Charles A. Kronlage, Jr., Kronlage, Ditt-man & Caswell, New Orleans, for Marshall-Koehl, Inc.
    Robert E. Leake, Jr., Hammett, Leake, Hammett, Hayne & Hulse, New Orleans, for Fremin-Smith, and others.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   REDMANN, Judge.

A painting subcontractor and a manufacturer-supplier of paint appeal from a judgment which, on the theory that the paint application was improper and ruined the paint work, rejected their claims against the general contractor, its surety and the governmental owner of a newly-constructed building (and, as to the plaintiff supplier, its claim against the painter-subcontractor as well).

The paint work — application of a filler and then epoxy paint to interior concrete block walls — did fail. The filler and epoxy, bonded together, peeled “in sheets” as large as a foot square from about 50% of the building’s wall area. Appellants argue that the failure was caused by excessive moisture in the building at the time of painting. The painter at first refused to paint because of the moisture, but finally, under both oral and written protest, did paint because of the general contractor’s threat of suit for damages for delay in completion.

The testimony is unanimous that excessive moisture at the time of painting, including moisture immediately thereafter, can cause peeling. The painter testified that he only painted when the walls were themselves suitably dry (as measured with a moisture meter prior to applying filler, and as established by visual inspection pri- or to applying epoxy). He testified, however, “I know if you ain’t got a watertight building you shouldn’t start [to paint].” The building was far from watertight at the painting time which the general contractor forced upon the painter; there was even standing water on the floors.

Against this unanimity of testimony that substantial moisture was present and that moisture can cause peeling, defendant general contractor presented a chemical engineer’s testimony that the cause of this particular peeling was definitely not moisture, but rather a too thick application of the filler (up to 30 mils thick). The filler “is not made to bond on surfaces like concrete or block;” “you are required to remove the excess ... by means of a squeegee. This then fills the voids [in the concrete block surface] and permits an area of concrete exposure where your epoxy can bond to the [concrete] block in satisfactory manner so it won’t peel.” The trial judge accepted this explanation of the cause of peeling, and attributed the improper application to both the painter and the manufacturer-supplier who had demonstrated (and periodically supervised) the application.

The chemical engineer testified that proper application of filler requires use of a squeegee “just like you clean windows.” “[I]f you want to do the job right it [use of a squeegee] should have been in the specifications.”

Use of a squeegee was not in the architect’s specifications, which called for application by brush, roller or spray in accordance with the manufacturer’s directions. Thus the architect (who did not testify) apparently disagreed with the chemical engineer. Furthermore, the painter had been in the painting business for 20 years, applying block filler. Finally the paint manufacturer’s directions, as provided by the representative who demonstrated the application of this particular filler to the painter, did not call for use of a squeegee. Although the chemical engineer’s theory of cause is internally consistent, these three practical authorities require rejection of his theoretical opinion that the use of a squeegee is the proper method of application of filler. (We therefore do not consider whether R.S. 9:2771 would protect the painter against liability because of failure of the specifications to specify squeegeeing.) Rejecting the squeegee requirement leaves the too-thick-application theory a less plausible explanation of the peeling than the excessive moisture theory.

The trial judge would alternatively have rejected the painter’s and supplier’s claims because (the chemical engineer testified) there was excessive moisture between the filler and the epoxy (though not between filler and concrete block), indicating that the painter, with the supplier’s supervision, had applied the epoxy to wet filler. We note, however, that the testimony is that the epoxy and filler were well-bonded together, and came off the wall together in all instances. Any application of epoxy to wet filler (on dry concrete) is nowhere explained as a cause of the .concrete-filler separation. (The moisture theory is that wet concrete prevents a bond of most paint-like substances, even when the wetness occurs immediately after painting from humidity which at night condenses inside the hollow concrete block and penetrates its porous material.)

In our opinion, the painter established a prima facie case by the evidence of moisture in fact and moisture as possible cause of his work’s failure, and by the evidence of his being forced by the general contractor to paint under moist conditions over his protest. After this showing, it was the general contractor’s burden to go forward with evidence to rebut the case fairly established by the painter. The general contractor’s theoretical explanation does not carry this burden, because it is effectively contradicted by the experienced painter, the paint manufacturer and the architect, and because it would require a performance by the painter not specified in the contract itself. The obvious explanation of this paint work’s failure—the massive amount of moisture in an incomplete building with a badly leaking roof— has not been rebutted.

The paint manufacturer-supplier is similarly not chargeable with the failure of the paint work. The supplier was not in a position to refuse to supply, or to oblige the painter to rebuff the general contractor and await the building’s watertightness before painting.

We do not consider whether the governmental owner might otherwise be liable; it is not liable because there is no allegation of defect in the contractor’s bond, R.S. 38:2244.

The painter and supplier have properly abandoned their demands for 10% attorney’s fees under R.S. 38:2246, because they no longer claim the “full amount” of their recorded or sworn claim. The supplier still seeks the cost of filing and attorney’s fee for preparing its lien; however, this remedy is available only under the private building contract law, R.S. 9:4801A. The public works law provides the ordinarily greater remedy of 10% attorney’s fees, but only if the “full amount” of the claim is recovered.

The judgment appealed from is reversed (except insofar as it awarded Napko an unrelated account balance). There is judgment for Marshall-Koehl, Inc. for $10,242.-50 with interest from judicial demand as prayed and all costs, against Fremin-Smith Service, Inc. and Great American Insurance Company of New York, New York, in solido; and there is judgment for Napko Corporation (in addition to that rendered by the trial court) for $5,315.28 with interest from judicial demand and for all costs, against Marshall-Koehl, Fremin-Smith and Great American in solido, with any execution by Napko against the latter two to be credited against the judgment in favor of Marshall-Koehl.

Reversed.


text:
    August RICHARDS and Marvel Joseph v. Thomas GETTYS.
    No. 7478.
    Court of Appeal of Louisiana. Fourth Circuit.
    March 16, 1976.
    Orlando G. Bendana, New Orleans, for plaintiffs-appellants.
    James H. Minge, Hammett, Leake, Hammett, Hayne & Hulse, New Orleans, for defendant-appellee.
    Before the Whole Court.
   REDMANN, Judge.

We initially ruled appellant to show cause why this appeal should not be dismissed, upon the erroneous basis that there was no signed judgment in the record. There is a signed judgment dismissing appellant’s suit in the timely-lodged record; but it was signed two and a half months after its oral announcement at trial’s end, and two months after the forma pauperis order of appeal had been signed.

Thus the question is whether an appeal from a final judgment must be dismissed because the order of appeal was granted at a time when there was no signed judgment, despite the subsequent signing of the judgment and its presence in the timely-lodged record. We answer no, overruling Excel Finance Treme, Inc. v. Cohn, La.App. 4 Cir. 1964, 159 So.2d 560.

Prior to the 1960 Code of Civil Procedure, it appears to have been the uniform holding of the Louisiana Supreme Court that an appeal taken after rendition but before signing of the judgment will not be dismissed if the judgment has been signed and included in the record by the time the record reaches the appellate court; McGregor, Alloway & Co. v. Barker & Diffenderffer, 1857, 12 La.Ann. 289; State v. McKeown, 1857, 12 La.Ann. 596; Vicksburg, S. & T. R. Co. v. Hamilton, 1860, 15 La.Ann. 521; Green v. Huey, 1871, 23 La. Ann. 704; Mouton v. Broussard, 1873, 25 La.Ann. 497; State v. Balize, 1886, 38 La. Ann. 542; State ex rel. Bush v. Trahan, 1910, 125 La. 312, 51 So. 216.

Our predecessor court, citing many of these cases, upheld the appeal in Mossler Acceptance Co. v. Moliere, La.App.Orl. 1938, 181 So. 228. Mossier also listed about five column-inches of cases which had declared that an appeal before signing of judgment is dismissible as premature; yet Mossier distinguished cases of that kind (as had McGregor) on the ground that “[i]n all of the foregoing cases, there was no signed judgment contained in the record at the time the appeal was lodged in the appellate court.” 181 So. at 230. Erie v. Primos, La.App.Orl.1948, 37 So.2d 832, followed Mossier.

Since the 1960 Code of Civil Procedure, there appears to have been no supreme court decision in point. We have decided Excel Finance Treme, Inc. v. Cohn, La. App., 4 Cir. 1964, 159 So.2d 560, and Richardson v. Richardson, La.App., 4 Cir. 1972, 264 So.2d 699. Excel dismissed its appeal, referring only to the no-signed-judgment jurisprudence that Mossier had distinguished, and making no reference to Mossier (or the seven supreme court decisions in point). Richardson refused to dismiss its appeal, citing neither Mossier (nor the supreme court) nor Excel.

(A like inconsistency existed in the former First Circuit’s decisions. Fidelity and Cas. Co. of N. Y. v. Callicott, La.App. 1 Cir. 1955, 83 So.2d 671, and Frazier v. Muse, La.App. 1 Cir. 1956, 88 So.2d 729, dismissed, ignoring Cox v. Gross, La.App. 1 Cir. 1950, 47 So.2d 102, which had refused to dismiss.)

The present First Circuit would dismiss; Malbrough v. Kiff, La.App. 1 Cir. 1975, 312 So.2d 915. The Second Circuit would not dismiss; Nomey v. State, Dept. Hwys., La.App. 2 Cir. 1976, 325 So.2d 732. (The Third Circuit has hinted at but not decided the precise issue; it distinguished from Mossier its Forman v. May, La.App. 3 Cir. 1967, 201 So.2d 683, on the ground that there the judgment was not signed and did not reach the court of appeal until after lodging of the record in the court of appeal. We add that in Forman — as in Calli-cott and Frazier — there still remained time for a devolutive appeal after the court of appeal handed down its decision.)

Malbrough does not so much as mention any of the seven supreme court cases holding that the appeal cannot be dismissed in the circumstances in question. Instead, Malbrough relies on dicta in Greene v. Baynard, 1940, 194 La. 409, 193 So. 690, which itself ignored the prior decisions. Greene is one of a few cases in which our supreme court, in the course of an opinion actually deciding an appeal, has said obiter that appeals with other circumstances should not be decided, but dismissed. But because Greene decided the merits of its own case, it is not precedent for refusing to decide the merits of appeals. (Moreover, even Greene’s dicta referred to an “appeal” which, unlike those under discussion, had been abandoned by failure to lodge the record by the return date.) Greene is sufficiently analyzed in Note, 1940, 14 Tulane L.Rev. 627. We disagree with Malbrough.

We find in the 1960 Code of Civil Procedure no legislative overruling of the supreme court decisions which we have cited and by which we are bound. Excel Finance Treme, Inc. v. Cohn, supra, which ignored those decisions, was wrongly decided and is now overruled.

Our rule to dismiss is discharged.

      . In American Nat. Ins. Co. v. Ramon, La. App. 4 Cir. 1967, 204 So.2d 798 (cited by Nomey v. State, Dept. Hwys., La.App. 2 Cir. 1976, 326 So.2d 732, 733, n. 1, as refusing dismissal in this type case), the motion for appeal came after the judgment was signed, but before a timely application for new trial (later denied).