text:
    A. G. ALIZZI and June McNeely Alizzi v. EMPLOYERS INS. OF WAUSAU and Kenneth Dubose.
    No. 61177.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Employers Ins. of Wausau and Kenneth Dubose applying for certiorari or writ of review to the Court of Appeal, Third Circuit. Parish of Sabine. 351 So.2d 258.

Writ denied.

SANDERS, C. J. and SUMMERS, J., would grant the writ.


source: Caselaw Access Project

license: Public Domain

text:
    Linda Altenberg Verlander, wife of/and Richard G. VERLANDER, Jr. v. Raymond L. HOFFER.
    No. 61182.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Raymond L. Hoffer, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 351 So.2d 229.

Writ denied.


text:
    Linda Altenberg Verlander, wife of/and Richard G. VERLANDER, Jr. v. Raymond L. HOFFER.
    No. 61161.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Linda Altenberg Verlander, wife of and Richard G. Verlander, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 351 So.2d 229.

Denied.


text:
    Earl J. RODDY and Etienne P. Millet v. NORCO LOCAL 4-750 OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION.
    No. 61178.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Earl J. Roddy and Etienne P. Millet, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 351 So.2d 219.

Granted. 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:
    Lois M. SMITH v. The NATIONAL LIFE AND ACCIDENT INS. CO.
    No. 61181.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: The National Life and Accident Insurance Co. applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 351 So.2d 217.

Writ denied.


text:
    Mrs. Ellove Johnson, wife of/and Monroe JOHNSON v. The INSURANCE CO. OF NORTH AMERICA and Schwegmann Bros.
    No. 61179.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: The Insurance Company of North America and Schwegmann Bros, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 351 So.2d 190.

Writ granted. 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:
    J. C. BOYER v. Joe E. JOHNSON et al.
    No. 61095.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: J. C. Boyer applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Jackson Parish. 350 So.2d 961.

GRANTED.

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


text:
    STATE of Louisiana v. Robert C. COLLINS.
    No. 61152.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Robert C. Collins applying for writ of habeas corpus. Parish of Bossier.

Writ denied.


text:
    STATE of Louisiana v. Kenneth J. JOHNSON.
    No. 61176.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Kenneth Johnson, applying for writs of mandamus and certiorari. Parish of Orleans. •

Denied.


text:
    STATE of Louisiana v. James BULLOCK.
    No. 61140.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: James Bullock applying for writ of mandamus and remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Lloyd WASHINGTON v. Oliver P. SCHULINGKAMP, Judge et al.
    No. 61174.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Lloyd Washington applying for writs of mandamus and prohibition. Parish of Orleans.

Writ denied, without prejudice to the relator’s right to apply to the Criminal Sheriff and/or District Judge for remedial treatment.


text:
    STATE of Louisiana ex rel. Joseph JONES v. James S. WEIDNER, Jr., Criminal Law Clerk, 24th JDC, Gretna, Louisiana.
    No. 61173.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Joseph Jones applying for writ of mandamus. Parish of Jefferson.

Writ denied. Moot.


text:
    STATE of Louisiana v. Joshua M. BURSH, II.
    No. 61163.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Joshua M. Bursh, II, applying for supervisory writ of certiorari. Parish of Lincoln.

Writ denied.


text:
    STATE of Louisiana v. Percy WALLACE.
    No. 61160.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Percy Wallace, applying for remedial writs. Parish of Orleans.

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


text:
    STATE of Louisiana v. Mary Strickland MILLER.
    No. 61153.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: State of Louisiana applying for writ of certiorari, mandamus and prohibition. Parish of Caddo.

Denied.


text:
    Errol J. MARTIN, Jr. v. PARISH OF JEFFERSON et al.
    No. 61151.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Errol J. Martin, Jr. applying for certiorari, or writ of review, to the Court of Parish of Jeffer-Appeal, Fourth Circuit, son.

Denied.


text:
    STATE of Louisiana ex rel. Herbert WILLIAMS v. Ross MAGGIO, Warden, Louisiana State Penitentiary, Hon. Matthew Braniff, Judge, Criminal District Court, Parish of Orleans.
    No. 61141.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Herbert Williams applying for writ of mandamus. Parish of Orleans.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Frankie MORRISON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 61139.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Frankie Morrison applying for writ of mandamus. Orleans Parish.

Denied.


text:
    STATE of Louisiana ex rel. Frederick THOMAS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 61137.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Frederick Thomas applying for remedial writs of certiorari and habeas corpus. Parish of Rapides.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert E. GRISWALD v. PRESIDING JUDGE, SECTION “J” CRIMINAL PARISH COURT, PARISH OF ORLEANS.
    No. 61102.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Robert E. Griswald applying for writ of mandamus. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Thomas McMILLAN v. Hon. Frank J. SHEA, Judge, Criminal District Court.
    No. 61038.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Thomas McMillan applying for writ of mandamus. Parish of Orleans.

Denied. Applicant is directed to refile his application in the trial court.


text:
    STATE of Louisiana v. Ricky Earl WILSON.
    No. 61012.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Ricky Earl Wilson, applying for writs of certiorari, prohibition, mandamus and review. Parish of Grant.

Denied.


text:
    STATE of Louisiana ex rel. Frank RECASNER v. J. D. MIDDLEBROOKS, Warden, Louisiana Correctional and Industrial School.
    No. 60759.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Frank Recasner applying for writ of certiorari. Parish of Orleans.

Denied.


text:
    Alford G. CLARK et al. v. HARRISON PROPERTY MANAGEMENT CO., INC., et al.
    No. 61157.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Alford G. Clark and Glynn L. Bannister applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Granted.

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. Clark E. COLVIN, Jr.
    No. 60940.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Clark E. Colvin, Jr. applying for writ of review and other supervisory writs. Parish of Ouachita.

Writ granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Robert T. Farr, Judge of the Fourth Judicial District, Court for the Parish of Ouachita, to transmit to the Supreme Court of Louisiana, on or before the 25th day of January, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court 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. Jack M. DELANEY.
    No. 61048.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Jack M. Delaney applying for cer-tiorari, mandamus and prohibition. Parish of Jefferson.

Writ denied.

TATE and DIXON, JJ., would grant the writ.


author: TATE, J.,

text:
    STATE of Louisiana v. Leonard D. POURCIAU.
    No. 61323.
    Supreme Court of Louisiana.
    Jan. 11, 1978.
   In re: Leonard D. Pourciau, applying for supervisory writ of review. Parish of E. Baton Rouge.

Denied.

TATE, J.,

concurs. The accused has a right to a preliminary examination, if he requests it.

CALOGERO and DENNIS, JJ., are of the opinion a preliminary examination should be ordered forthwith.


text:
    STATE of Louisiana in the Interest of Jeffrey E. BLACK.
    No. 61341.
    Supreme Court of Louisiana.
    Jan. 12, 1978.
   In re: Chyrel E. Black, Mr. and Mrs. William B. Estes applying for writ of habe-as corpus and for a stay order. Jefferson Parish.

Writ denied for reasons stated by court of appeal.


text:
    STATE of Louisiana v. Richard COLEMAN.
    No. 61353.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Richard Coleman, applying for supervisory writs. Parish of Calcasieu.

Writ denied.


text:
    STATE of Louisiana v. Glen BERTONIERE.
    No. 61046.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Glen Bertoniere applying for supervisory writ of review, and stay order. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana v. Gordon T. SCHMIDT.
    No. 61214.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Gordon T. Schmidt applying for writs of certiorari, prohibition and mandamus. Parish of Rapides.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Guy E. Humphries, Judge of the 9th Judicial District, Court for the Parish of Rapides, to transmit to the Supreme Court of Louisiana, on or before the 26th day of January, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, 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. Percy FISHER.
    No. 61206.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Percy Fisher, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Natchitoches.

Writ denied.


text:
    STATE of Louisiana ex rel. Victor SWINNEN v. Hayden J. DEES, Warden.
    No. 61237.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Victor Swinnen applying for writ of certiorari. Parish of Rapides.

Denied.


text:
    Rodney C. GUIDRY, Sr. v. PIZZA HUT OF LOUISIANA, INC. and St. Paul Fire and Marine Ins. Co.
    No. 61213.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Pizza Hut of Louisiana, Inc. and St. Paul Fire and Marine Ins. Co., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 352 So.2d 355.

Writ denied. Judgment is final. No rehearing applied for in court of appeal.


text:
    NETTLES EXCAVATORS, INC., et al. v. CERTAIN-TEED PRODUCTS CORP. et al.
    No. 61217.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Nettles Excavators, Inc., et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of E. Baton Rouge. 351 So.2d 1258.

Denied.


author: MARCUS and DENNIS, JJ.,

text:
    B. E. WELCH v. CROWN ZELLERBACH CORPORATION.
    No. 61235.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: B. E. Welch applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 351 So.2d 1255.

Granted.

MARCUS and DENNIS, JJ.,

would not grant.

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 noti-. fied.


text:
    Calvin DEROUEN et al. v. SOUTHERN PACIFIC TRANSPORTATION CO. et al.
    No. 61196.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: S. P. Transportation Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia. 351 So.2d 300.

Writ denied.


text:
    Phillip M. SLEET d/b/a Phil Sleet Realtor v. John L. GRAY et al.
    No. 61191.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: John L. Gray et al. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Orleans.

Writ denied.


text:
    Mrs. Lee DUGAS v. ST. MARTIN PARISH POLICE JURY.
    No. 61207.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: St. Mary Parish Police Jury applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Martin. 351 So.2d 271.

Denied.


text:
    William E. FELDER, III v. Marjorie Terry, wife of/and William McMULLIN.
    No. 61201.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Marjorie Terry, wife of/and William McMullin applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 351 So.2d 244.

Denied.


text:
    Keland GENTRY and Ellen Lynn Gentry v. Jeff. BARBER, Individually and State Farm Mutual Automobile Insurance Co.
    No. 61200.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: August Mitchell and Checker Cabs, Inc. (Third-Party Defendants) applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 351 So.2d 215.

Writ denied.


text:
    Harold FALGOUT v. ST. CHARLES SEWERAGE DIST. NO. 3 et al.
    No. 61194.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: St. Charles Parish Sewerage District No. 3 et al., applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 351 So.2d 206.

Writ denied.


text:
    Edward J. FOSS, Ind. and as Administrator of the Estate of his minor son, Martin Foss v. NEW ORLEANS TERMINAL CO. et al.
    No. 61184.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Edward J. Foss and Martin Foss applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 351 So.2d 193.

Writ denied, for the reasons assigned by the concurring opinion in the Court of Appeal.


text:
    LOUISIANA RESOURCES CO. v. Matilda Gray STREAM.
    No. 61205.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Matilda Gray Stream, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Cameron. 351 So.2d 517.

Writ granted.

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:
    Yolanda de Vincenzo VIRGADAMO v. Arthur VIRGADAMO.
    No. 61185.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Yolanda de Vincenzo Virgadamo applying for supervisory writs. Parish of Orleans.

Denied.

SUMMERS and TATE, JJ., would grant the writ.

SANDERS, C. J., concurs in denial being of the opinion that remedy was by appeal.


text:
    STATE of Louisiana v. John BRADY.
    No. 61167.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition. Parish of Orleans.

Writ denied.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., would grant the writ.


text:
    T. W. GANUS v. Russell L. CUOCO and Board of Levee Commissioners of the Orleans Levee District.
    No. 61186.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Russell L. Cuoco applying for cer-tiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 351 So.2d 224.

Writ denied.

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


text:
    Charles A. MARTINO v. AETNA LIFE & CAS. CO. and William Bevan et al. Joseph T. CARRILES v. Succession of William BEVAN, Lena Bevan and Aetna Life Ins. Co.
    No. 61188.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Joseph T. Carriles applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 351 So.2d 204; 351 So.2d 206.

Writ denied.

TATE and CALOGERO, JJ., would grant the writ.


text:
    Carl Bradford PHILLIPS v. DRESSER ENGINEERING CO. and the Home Indemnity Co.
    No. 61208.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Dresser Engineering Co. and Home Indemnity Co. applying for certiorari or writ of review to the Court of Appeal, Third Circuit. Parish of Cameron. 351 So.2d 304.

Denied.

SANDERS, C. J., and SUMMERS, J., are of the opinion the writ should be granted.


text:
    Lorraine Rouff CHRISTEN v. BOARD OF TRUSTEES, Louisiana State Employees’ Retirement System et al.
    No. 61232.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Lorraine Rouff Christen applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 351 So.2d 1307.

Writ denied.

DIXON and DENNIS, JJ., would vote to grant.


text:
    STATE of Louisiana v. John CAIRNS.
    No. 61195.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: John Cairns, applying for review and for Stay Order. Parish of Morehouse.

Writ denied.

TATE, J.,

is of the opinion that no crime of unauthorized use of automobile is proved. The purchaser by a conditional sale agreement cannot be regarded as committing a criminal offense by his violation of the terms of the contract; that is a matter for the civil courts and for civil remedies, such as rescission or repossession to enforce the unpaid balance.

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


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Jimmie STEWART v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 61240.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Jimmie Stewart applying for writ of habeas corpus. Parish of Orleans.

Denied.

DIXON, CALOGERO and DENNIS, JJ., would grant the writ.

DIXON, J.,

is of the opinion this applicant is entitled to an out-of-time appeal on the showing made in this application. He shows he has been denied a copy of the 1970 hearing in the district court. He should therefore, at least be entitled to an eviden-tiary hearing.


text:
    STATE of Louisiana v. John L. JOHNSTON.
    No. 61192.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: John L. Johnston applying for writs of certiorari. Parish of Morehouse.

Writ denied.

SUMMERS, J., dissenting.


text:
    STATE of Louisiana v. Theodore C. BARKER.
    No. 61224.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Theodore C. Barker, applying for remedial writs. Parish of Avoyelles.

Denied.

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


author: CALOGERO, J.,

text:
    STATE of Louisiana ex rel. Gary TYLER v. C. Paul PHELPS, Director, Department of Corrections.
    No. 61215.
    Supreme Court of Louisiana.
    Jan. 13, 1978.
   In re: Gary Tyler applying for writs of certiorari, prohibition, mandamus and habe-as corpus. Parish of St. Charles.

Writ denied.

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

CALOGERO, J.,

dissenting from denial of writ of habeas corpus.

When this Court reviewed defendant Tyler’s conviction on appeal, we considered the possible error in the jury charge concerning presumptions. I expressed my view in a concurring opinion that I was inclined to agree with defendant that the jury charge he complained of was erroneous, but I joined the majority in affirming the conviction on appeal because of our long standing contemporaneous objection rule. 342 So.2d 574, 589 (La.1977). Defense counsel had not objected to the charge, a failure which denied the trial judge an opportunity to correct it. There was no constitutional issue involved on this point on appeal.

In the application for writ of habeas corpus now before us, defendant Tyler argues that federal and state constitutional due process was violated because of that same fundamentally unfair jury charge in contravention of the hallmark presumption of innocence. Considering this constitutional issue for the first time in this case, and noting that constitutional infirmities complained of on habeas application are reviewable without the prerequisite of a contemporaneous objection, I would find the application meritorious and grant the writ.

As I noted in my concurring opinion, because defendant was only sixteen years old at the time of the charged crime and therefore subject to being prosecuted in the district court rather than juvenile court only for capital crimes, he was charged with first rather than, more appropriately, second degree murder. The. first degree murder charge required the state, in order to gain a conviction under the circumstances of the case, to prove beyond a reasonable doubt that Tyler had the specific intent to kill or to inflict great bodily harm upon more than one person, although only one shot had been fired from a fully loaded pistol. In order to attempt to meet its burden, the state repeatedly emphasized to the jury and successfully requested a special jury instruction that a person is presumed to intend the natural and probable consequences of his act.

Thus the jury which must presume innocence at the outset and throughout the proceedings was told in the context of the argument and charge that they were required and bound by a presumption relative to the central issue in the case, defendant’s intention when he fired the single pistol shot. In effect, then, the jury, whose function it was to determine beyond a reasonable doubt that defendant specifically intended to kill or do great bodily harm to more than one person, when he fired one shot, was being told that they should apply a presumption, obviating further proof of this element by the state and transferring the burden of going forward with contrary proof of the lack of specific intent to the defendant. This transfer of the burden of going forward was, I believe, a prejudicial and unconstitutional violation of defendant’s right to be presumed innocent, and of his right to be tried under the standard of due process. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Searle, 339 So.2d 1194 (La.1976).

I believe, in fact, that this Court agrees that the judge’s charge to the jury on the subject of the presumption was erroneous. Only the dissenter, however, feels that defendant was thereby unduly prejudiced, and for that reason entitled to issuance of this writ.


author: PRICE, Judge.

text:
    Frances Jackson Bayonne, wife of, and Peter BAYONNE, Plaintiffs-Appellants, v. The HARTFORD INSURANCE COMPANY and Jack Grindle, M.D., Defendants-Appellees.
    No. 13380.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    Cotton, Jones & Dennis by David J. Dennis, New Orleans, for plaintiffs-appellants.
    Cook, Clark, Egan, Yancey & King by Sidney E. Cook, Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

In this medical malpractice action Mrs. Frances Jackson Bayonne has appealed the judgment sustaining a peremptory exception of prescription filed on behalf of defendants, Dr. Jack Grindle and his insurer, Hartford Insurance Company.

Plaintiff’s suit arose out of the following facts: In early 1973, after experiencing unusual discomfort during menstruation, plaintiff visited the DeSoto Parish Health Unit to have an intrauterine device (commonly called an IUD) removed. The health unit was unsuccessful in its efforts and referred plaintiff to Dr. Grindle, a Mansfield surgeon. On March 2, 1973, Dr. Grin-dle attempted to remove the device, but, because it had become imbedded in the uterus, the plastic string attached to facilitate removal broke. He advised plaintiff that it would be necessary to perform a dilatation and curettage to accomplish removal. Prior to performing the surgical procedure, preoperative tests showed plaintiff was pregnant. Dr. Grindle then advised plaintiff the surgery could not be performed as it would terminate her pregnancy. Dr. Grindle furnished plaintiff prenatal and obstetrical care, and on October 21, 1973, she gave birth to a healthy baby. At the request of plaintiff, Dr. Grindle performed a tubal ligation in connection with the delivery. Dr. Grindle removed plaintiff’s sutures on October 29, 1973, which is the last time he treated plaintiff.

In April of 1974 plaintiff again began experiencing abdominal discomfort during menstrual periods, and in February 1975 she sought medical treatment from Dr. Irwin Rice of Shreveport. On February 26, 1975, X-rays made by Dr. Rice showed the IUD was still imbedded in body tissue near the uterus and surgery was performed removing the IUD and the fallopian tubes which had become inflamed.

Plaintiff filed suit on February 3, 1976, alleging Dr. Grindle was negligent in not removing the IUD and that he misinformed plaintiff that the device had passed from her body during delivery.

Since the alleged wrongful act of Dr. Grindle appears on the face of plaintiff’s petition to have occurred more than one year before suit was filed, plaintiff’s cause of action has prescribed unless: she could not have ascertained the tortious act by diligent inquiry; information was withheld from her by the defendant physician; or the defendant in some manner misled plaintiff. The burden of proving suspension of prescription due to lack of knowledge rests with plaintiff. Hunter v. Sisters of Charity of Incarnate Word, 236 So.2d 565 (La.App. 1st Cir. 1970). Although prescription does not run against one who is ignorant of the fact that would entitle him to bring his suit, Cartwright v. Chrysler Corp., 255 La. 598, 232 So.2d 285 (1970), knowledge of the fact is presumed where plaintiff has sufficient information to incite her curiosity as to the cause of the injury, Quick v. Aetna Casualty, 347 So.2d 59 (La.App. 2d Cir. 1977).

Plaintiff contends the trial court improperly sustained defendants’ plea of prescription because she has shown she did not know the IUD was still in her body and causing her discomfort until X-rays were made by Dr. Rice on February 16,1976, less than one year before suit was filed.

We find the evidence to show plaintiff knew or should have known that there was a possibility of the device remaining in her body after delivery of the child. Dr. Grin-dle testified he did not inform plaintiff that the IUD was found by him in the afterbirth as contended by plaintiff. He had no recollection of discussing the device with her in any manner after delivery.. He did testify that he has on occasions informed obstetrical patients using an IUD that it would not interfere with normal childbirth and that the device might pass with delivery. • He further testified it would not have been possible for him to have removed the device during delivery because of the danger of perforation of the uterus.

From a review of notations made in his initial patient interview with plaintiff, Dr. Rise testified he was under the impression she was aware that she might not have passed the IUD at the time of birth of her baby. He therefore made X-rays to resolve any doubt of its presence.

The testimony of Dr. Grindle as corroborated' by Dr. Rice constitutes a preponderance of the evidence to establish plaintiff knew of the possibility she retained the IUD after birth of the child.

Therefore, when she began having a reoc-currence of pain in her abdominal area during menstruation in April 1974, she had sufficient knowledge to have created a duty to make an adequate inquiry to determine if there was a causal relation between the suspected displaced IUD and her symptoms.

According to plaintiff’s testimony the only action she took -at that time was to call and discuss by telephone her symptoms with a Dr. Hobblet, an associate practicing with Dr. Grindle. Plaintiff testified she was told by Dr. Hobblet that the tubal ligation could be causing her discomfort and it should subside. From the evidence, it was not shown Dr. Hobblet was made aware of any prior history of difficulty with the IUD. Although her symptoms continued she did not seek further medical advice from Dr. Grindle’s' office or elsewhere until February 1975, when she saw Dr. Rice.

Considering all circumstances, plaintiff had ample knowledge of facts by the spring of 1974 to constitute constructive knowledge of the tortious event, resulting damage, and the causal relationship between the alleged negligence and her damage.

Therefore, this suit filed in February 1976, considerably more than a year later, is barred by prescription.

The judgment appealed is affirmed at appellant’s cost.


author: MARVIN, Judge.

text:
    MIDWAY TESTING COMPANY, INC., Plaintiff-Appellant, v. Jerry H. WOLFF, Defendant-Appellee.
    No. 13382.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Writ Refused March 17, 1978.
    Johnson & Johnson by Don H. Johnson, Monroe, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Plaintiff Midway appeals from the rejection of its demands against Wolff on a $12,000 promissory note. We affirm.

Midway contends the defense of payment was improperly upheld. While the burden of proving payment is on the defendant, the resolution of this case depends upon the manner in which the litigants agreed the note was to be satisfied.

Wolff was a creditor of Midway’s subcontractor, McDanell, and was a guarantor of McDanell’s bank loan. McDanell was in financial difficulty on a job Midway, as prime contractor, was doing for a real estate development. Both Midway and Wolff were attempting to prevent the complete financial collapse of McDanell because of their obvious respective interests in his continuation of dirt work on the Midway contract. The original contract between McDanell and Midway had been renegotiated or amended by the parties to benefit McDanell. After renegotiation of the contract and before the note in question was executed, Midway had refused to make further monetary advances to McDanell but did make one progress payment to McDa-nell for work which had been completed.

In return for a $12,000 advance by Midway to McDanell, Wolff executed the note upon which suit was brought. Midway contends the note was to be canceled only when McDanell completed $12,000 worth of work which was not otherwise paid for by Midway. After the note was executed, McDanell completed $12,000 or more worth of work for Midway. Midway contends that it paid to McDanell for his payrolls $6,000 and that it paid direct to other McDanell creditors after the note was signed, an amount which exceeded the contract price, notwithstanding that McDanell did not fully complete the contract. After McDanell’s default on the contract, Midway brought suit against Wolff on the note.

Wolff contends that the note was to be canceled after McDanell completed the next $12,000 worth of work after execution of the note. Payments made by Midway after the note was executed included the $6,000 to McDanell to meet past, due payroll claims, $1,000 to an insurance agency for McDanell’s workmen’s compensation premium, and $1,250 to a supplier of a used dragline boom, purchased by Midway for McDanell’s dragline being used on the job because the supplier would not sell on credit to McDanell.

The trial court found that Midway and Wolff agreed that the note would be canceled and returned to Wolff when McDanell did $12,000 worth of work for Midway after the note was executed. Under the circumstances, this issue is one of credibility to be determined in the light of the way the litigants dealt with each other and with McDanell. The essence of Midway’s contention is that Wolff was guaranteeing that McDanell would fully complete the contract, at which time the note would be canceled and returned to Wolff if there was $12,000 or more owed on the contract by Midway. Otherwise, Wolff would be required to pay the note in accord with the amount owed on the contract by Midway to McDanell. Neither the note itself nor the verbal agreement of the parties expresses this, however. Wé are not convinced by the evidence that the eventual satisfaction of the note was conditioned as Midway contends. If this was Midway’s intention, it was Midway’s responsibility to express these conditions clearly and unequivocally. C.C. Art. 1958. There is evidence to support the finding of the lower court.

Accordingly, we do not find that the lower court manifestly erred in finding that the note was to be canceled and returned when McDanell did $12,000 worth of work for Midway.

At appellant’s cost, judgment is

AFFIRMED.


author: BOLIN, Judge.

text:
    Joe DIXON et al., Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 13383.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Writ Granted Feb. 24, 1978.

      Hayes, Harkey, Smith & Cascio, by Joseph D. Cascio, Jr., Monroe, for plaintiffs-appellants.
    Hudson, Potts & Bernstein, by Jesse D. McDonald, Monroe, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

The issue before this court is the correctness of the trial court’s finding that a 16-year-old girl’s negligence was a contributing cause of her injuries incurred when she crashed into a sliding glass door panel while a guest in the home of defendant’s insured. On the basis of this finding, the trial court denied recovery to plaintiffs, father and daughter, in their suit against the homeowner’s insurer. We affirm.

On a spring morning plaintiff and three teenage companions were celebrating the end of the school year at the residence of the insured. After welcoming her guests, one of whom was her grandson, the homeowner left the premises.

One wall of the den in the house consisted of four plate glass panels. The two outer panels were stationary in their casements; the inner panels were sliding doors which opened on tracks from the center. When these panels were in the closed position their joined metal frames and twin handles formed a vertical post several inches wide which clearly signalled their nature as doors and destroyed any illusion of open space that might otherwise have existed.

The sliding doors opened to a screened porch and, on the day of the accident, were fully open from the time the guests arrived until a few minutes before the accident. Plaintiff testified she was familiar with sliding glass doors although she had never been in this particular den before. She passed through the open space between den and porch a number of times before one of her companions closed the sliding panels to prevent smoke from a barbecue grill from entering the house. Plaintiff was not present in the den at the time nor was she informed the doors were closed.

Two of plaintiff’s companions engaged in a playful tussle over a water pistol. Plaintiff followed the pair from the kitchen into the den, took the pistol from her girl friend who had wrestled it away in the scuffle and, intending to make her escape via the porch to the outside, started to- run in the direction of the sliding glass doors. One of her companions shouted a warning which enabled plaintiff to shield her face with her hands before her body collided with the left door panel. She fell forward, shattering the plate glass and causing her injuries. Plaintiff had traveled a distance of five to eight feet from the area of the scuffle in the middle of the den to the point of impact.

Plaintiffs contend Natal v. Phoenix Assurance Co. of New York, 305 So.2d 438 (La.1974) dictates defendant’s liability in this case. Natal is readily distinguishable as to its determinative facts; furthermore, there was no issue of plaintiff’s negligence in that case.

In Natal, the teenage plaintiff was walking slowly through a darkened family room to answer a telephone on a well-lighted patio. The telephone was located on a low table just beyond a sliding glass door which separated the family room from the patio. As she reached for the phone, plaintiff bent slightly and hit the door, shattering the glass and causing the injuries for which recovery was sought. The court concluded that all the circumstances contributed to the creation of a deceptive illusion and trap; that the homeowner was negligent in failing to warn the plaintiff of the particular hazard created under those circumstances.

The record in this case shows no such unique combination of circumstances to lead to the homeowner’s liability. Here, the accident occurred around noon; the natural lighting was equalized on either side of the sliding glass doors; there were two doors which, when closed, were readily recognizable as doors. Therefore, we have serious doubts that this homeowner was negligent.

However, assuming the negligence of the homeowner, we nevertheless agree with the trial court’s finding that plaintiff daughter’s negligence bars recovery. The record indisputably shows she was an active participant in friendly horseplay when this tragic accident occurred. Had she been attentive to her immediate surroundings and exercised a moderate degree of care, she would not have crashed into the glass door panel and caused her admittedly serious injuries. Skyles v. State Farm Fire & Casualty Co., 210 So.2d 609 (La.App. 2d Cir., 1968), writs refused, 252 La. 835, 214 So.2d 161.

The judgment is affirmed at appellant’s cost.

      . Having attained the age of majority, the daughter has been substituted as a party plaintiff in this court.


text:
    MANSFIELD BANK AND TRUST COMPANY, Curator of the Interdicts, Beatrice Gamble and Carlette Gamble Hicks, Plaintiff-Appellee, v. Webster Lolan BROWN, Jr., Defendant-Appellant.
    No. 13386.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      Maynard E. Cush, Shreveport, for defendant-appellant.
    Colvin, Hunter, Brown, Plummer & Means, by David B. Means, III, Mansfield, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Based entirely on circumstantial evidence, the trial court found defendant intentionally burned an abandoned house owned by two interdicts. From a money judgment against defendant, he appeals. We reverse.

The issue is whether there is sufficient circumstantial evidence to support the conclusion of the trial judge that defendant was responsible for the fire.

Defendant lived , with his mother in a rural area directly across the road from the residence, known as the Gamble place, which was burned. His son lived in the same general area. Both families had been disturbed a number of times by loud knocking on the houses in the nighttime. Efforts to determine who was causing the disturbances were unsuccessful. Two other fires, the cause of which was not determined, had consumed a barn and shed on defendant’s property within a two-week period prior to this fire. The fires did not occur on the same nights as the disturbances.

Defendant’s adult son testified that, at about 7:00 o’clock on the night of the fire in question, he was concealed in the grass and weeds in the Gamble pasture, watching for anyone who might be causing the noises or setting the fires. He observed his father walk across the road and through the yard of the Gamble place, but because of trees and vegetation he lost sight of his father. In about two minutes he heard a “whoosh” and saw the fire blaze up in the back of the house; he ran back to his house to report the fire.

Defendant testified he heard a racket at the Gamble house and he and his little dog walked over to investigate; that he went up on the front porch but saw no one; he returned home and did not know of the fire until his niece came in and told him the house was afire. He testified he was on the Gamble porch and front walk no more than ten minutes; that he did not go to the back of the house and he took no light with him. He also testified he did not carry anything with him, that he did not smoke, and that he did not start the fire.

The police officers and firemen who were called to the scene testified to the statements given by defendant’s son. However, they were not asked nor did they volunteer information concerning the cause of the fire. Apparently no independent investigation was made into the cause of the fire, as to the presence or absence of an accelerant, or of the manner or means by which the fire was started.

When, as in this case, the proof is circumstantial the evidence must be so convincing that it will sustain no other reasonable hypothesis but that defendant was responsible for the' fire. Wallace v. State Farm Fire & Casualty Ins. Co., 345 So.2d 1004 (La.App. 2d Cir., 1977) and cases cited. Stated differently, the evidence must preclude any other reasonable way the tort could have occurred except the one urged by the injured party. Fogleman v. Piggly Wiggly Operators Warehouse, Inc., 347 So.2d 75 (La.App. 2d Cir., 1977) and cases cited.

The evidence fails to exclude every other reasonable hypothesis but that defendant was responsible for the fire. To the contrary, all the evidence supports a finding that defendant did not burn the building. The only evidence in any way connecting him with the fire was his presence on the premises shortly before the fire. Considering the previous fires of unknown origin, with which defendant was not involved, as well as the mysterious night noises in the area, defendant’s version is the most reasonable explanation of why he was on the Gamble premises on the night in question.

We find no evidence, even circumstantial, that supports the judgment of the trial court.

In view of our decision we pretermit a discussion of the procedural issues raised by appellant.

The judgment is reversed and the suit is dismissed at plaintiff’s cost.


text:
    Walter D. BAUMAN et ux., Plaintiffs-Appellants, v. The HANOVER INS. CO., Defendant-Appellee.
    No. 13389.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      James L. Fortson, Jr., Shreveport, for plaintiff s-appellants.
    Cook, Clark, Egan, Yancey & King, by Edwin L. Blewer, Jr., Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

The primary issue in this appeal is the amount of attorney’s fees and penalties assessed against the defendant insurer under L.R.S. 22:658.

Under their homeowner’s insurance policy, plaintiffs claimed the cost of repairing damages to their home and barn caused by a 1975 windstorm.

Except for the cost of repairing damages to the roof which it timely paid, the insurer resisted payment of the loss to the home on the grounds that it had been informed by two experts that the loss was caused not by the windstorm, but by the settling or sinking of the foundation of the brick fireplace and chimney of the home.

On the grounds that plaintiffs were using their barn for commercial purposes (a use which, under the policy, would have precluded coverage), the defendant resisted payment for the cost of repairing the barn. Shortly before trial, however, and about two years after the windstorm, defendant’s counsel determined there had been no forbidden use and deposited into the Registry of the Court the cost of the repairs to the barn.

The lower court held that the loss to the home (fixed at $1,750) was caused by the windstorm, but that the insurer’s failure to pay this loss was not arbitrary, capricious or without probable cause because there was a “justiciable issue” of causation. The lower court found the insurer to have been arbitrary in its failure to pay the cost of repairing the barn because there was no real controversy as to that loss. These findings of the trial court are supported by evidence and are not manifestly erroneous.

Defendant was assessed $250 as “penalties and attorney’s fees” by the lower court. Contending that the lower court erred in this respect, plaintiffs seek to increase the attorney’s fees and assess the statutory penalty (12 percent) against the total award.

Under L.R.S. 22:658, where the “sole issue and only element of the claim is in reasonable dispute,” penalties and attorney’s fees may be denied the successful insured claimant when the failure of the insured to pay is found to be with “probable cause” within the meaning of the statute. In cases where the claim is composed of “multiple elements, some of which are not in dispute,” the insurer’s failure to timely pay those elements admittedly due is held to be “without probable cause” and does subject the insurer to penalties on the “total amount of the loss,” together with attorney’s fees, Ranzino v. Allstate Insurance Company, 210 So.2d 907, 911 (La.App. 1st Cir. 1968); Sensat v. State Farm Fire & Casualty Co., 176 So.2d 804 (La.App. 3rd Cir. 1965), unless there has been a timely partial payment or tender by the insurer to the insured of the element of the loss admittedly due. Steadman v. Pearl Assurance Company, 242 La. 84, 134 So.2d 884 (1961). See also Foster v. Western World Ins. Co., 339 So.2d 395 (La.App. 1st Cir. 1976).

Under the circumstances shown, the tender for the element admittedly due almost two years after the loss and long after suit was filed was correctly found untimely. The penalty, therefore, should have been assessed on the total amount found due. Foster, Sensat, supra.

The question of arbitrariness in refusing or failing to pay relates to the entitlement of attorney’s fees and not to the amount of attorney’s- fees to be assessed against the insurer. The amount of attorney’s fees is based on the extent of recovery and the nature and duration of the attorney's services. Mitchell v. Connecticut Indemnity Co., 161 So.2d 460 (La.App. 1st Cir. 1963, writ refused (1963).

Here, we conclude that the lower court abused its much discretion in its blanket assessment of $250 as attorney’s fees and penalties. Considering also that the attorney spent more than 13 hours on this case before the appeal, we shall amend the judgment to increase the award of attorney’s fees.

It is therefore ordered that the judgment be amended to assess statutory penalties of 12 percent on the total principal award and to increase the award of attorney’s fees to $750.

As amended, and at the insurer’s cost, judgment is

AFFIRMED.

      . Our finding in this respect disposes of the insurer’s contention, made in answer to the homeowner’s appeal, that the lower court’s finding as to the cause of the damage to the home was manifestly erroneous.


text:
    James B. DAVIS et ux., Plaintiffs-Appellants, v. Homer Wesley DAVIS, Sr., et al., Defendants-Appellees.
    No. 13390.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Writ Refused March 3, 1978.

      Glen H. Smith, Shreveport, for plaintiffs-appellants.
    A. C. David, Shreveport, for defendant-appellee, Homer Wesley Davis.
    Mayer, Smith & Roberts, Smitherman, Smitherman, Lunn & Hussey by Charles L. Mayer, Shreveport, for defendant-appellee, Walter E. Hawkins, Jr., d/b/a Walter Hawkins Realtor.
    Jackson B. Davis, Shreveport, for defendant-appellee, Ruth Presson d/b/a Ruth Presson Realty Co.
    Frank Bright, Shreveport, for defendant-appellee, Jessie Davis.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

Within a year after its purchase from one of the defendants, plaintiffs’ home flooded when a nearby drainage canal was unable to contain the runoff from a heavy rainfall. Claiming their seller was aware from previous experience of the home’s susceptibility to flooding, but had failed to disclose this to them, the plaintiffs brought this suit in redhibition, naming as defendants the seller, her estranged husband, and the realtors involved in the transaction. The trial court found the seller and the real estate agent who listed the property were negligent in not informing plaintiffs of the danger of high water; it nevertheless rejected plaintiffs’ demands upon a finding that they had been compensated for any loss by the inflated value of the property plus proceeds from a flood insurance policy. Plaintiffs appeal. We reverse in part and cast defendant seller in judgment for a reduction in price and for attorney fees.

The primary issue is whether susceptibility to flooding constitutes a redhibitory defect in the property sold. If this question is resolved in the affirmative we must then determine if plaintiffs have proved their case and the extent of liability, if any, of the various defendants.

Defendant seller lived in the house in question from 1961 until she sold it to the plaintiffs in 1972. The property became part of her separate estate as a result of the partition agreement with her first husband in 1968. During 1967 and 1968 the house flooded on two occasions when a bayou which served as the drainage canal for a substantial portion of the City of Shreveport overflowed its banks after unusually heavy rains. From the time of the first flooding until shortly before she sold the home to plaintiffs, defendant became actively involved in community efforts to have the high water problem solved. During this period she married defendant Homer Wesley Davis, Sr.; they resided together in the home for sixteen months and separated in 1970; a judicial separation was decreed in 1973.

In July 1970, defendant Mrs. Davis and neighboring property owners received a letter from the Caddo Parish Police Jury advising them work was recently completed to cure the worst part of the flooding, and that they should not have apprehension about flooding during normal rainfall. The local governing body also informed the property owners of continuing attempts to improve the drainage system.

In November 1971 (after deciding she wanted to invest in a trailer park) Mrs. Davis listed her home for sale with defendant Presson Realty. The listing agent, a friend of the family, was aware of the previous flooding but did not inform her employer. This agent left the employ of Presson Realty two months after the home was listed.

Plaintiffs, who were then in the market for a new home, saw defendant’s residence in June, 1972, approximately seven months after it was first listed for sale. Desiring to inspect the premises, plaintiffs made arrangements for a showing through their real estate agent who was employed by defendant Hawkins Realty. At plaintiffs’ request, this agent prepared an offer to buy the house for $23,650. Defendant Mrs. Davis accepted this offer through defendant Presson Realty. There were no direct contacts between seller and buyer leading up to the purchase agreement.

Plaintiffs passed the act of sale on August 2, 1972. At the realtors’ request defendant Homer W. Davis signed his name as vendor to the deed, which stated that he appeared therein “to convey any interest which he may have in and to the property

During March and April of 1973, the land around plaintiffs’ home flooded to within inches of the threshold. From discussions with neighbors plaintiffs learned of the actual flooding of the house almost five years before and secured flood insurance to protect their investment. The house flooded in July 1973, and plaintiffs’ claim for coverage became the subject of litigation with the insurer. See Davis v. Aetna Casualty & Surety Company, 293 So.2d 906 (La.App. 2d Cir., 1974), 329 So.2d 868 (La.App. 2d Cir., 1975).

After the July flooding plaintiffs offered to return the house to defendant seller and made demand on her for the return of the purchase price. In the absence of a favorable response to their demands, plaintiffs filed suit in redhibition on August 1, 1973, asking for damages, including attorney fees, totaling $30,000. They prayed for judgment against all defendants in solido.

After suit was filed and before trial more than three years later, plaintiffs’ home flooded on four occasions, most recently three weeks prior to the date of trial. At trial both plaintiffs testified they desired to avoid the sale. However, on appeal plaintiffs seek a reduction in price in addition to damages and attorney fees.

In a redhibitory action the plaintiff must prove the thing sold contained a hidden defect which was not apparent by ordinary inspection and which rendered the thing unfit for its intended use or so imperfect that the purchaser would not have bought it had he known of the defect. Louisiana Civil Code Article 2520, 2521; Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975).

Plaintiffs allege the property’s susceptibility to flooding was a defect known to, and hidden from them by, defendant seller. Defendants contend this condition is not a “defect in the thing sold” as contemplated by La. C.C. Art. 2520. Although defendants argue the case is factually distinguishable, we hold the principle of Ford v. Broussard, 248 So.2d 629 (La.App. 3d Cir., 1971) applicable here: a house’s susceptibility to flooding is a redhibitory defect.

Defendants contend this defect was apparent to prospective purchasers, hence not a hidden vice of the thing sold which would entitle plaintiffs to avoid the sale. La. C.C. Art. 2521. However, the record shows plaintiffs had no reason to suspect the property was flood-prone. The lot was not adjacent to the drainage canal, but across a street; its relative position as the geographical low point in the area was not visible to the naked eye; water marks left in remote areas of the house by the earlier flooding were not discoverable on a simple inspection; when plaintiffs inquired about the presence of new flooring in the house they were informed that malfunctioning of the central air conditioning caused extensive water damage to the original floors, necessitating replacement. Considering all the evidence, plaintiffs could not have known the property they purchased was subject to flooding.

This court has the discretion to award a reduction in the purchase price in a redhibitory action. Louisiana Code of Civil Procedure Article 2164; La. C.C. Art. 2543. The decision to grant a reduction is based on a factual determination that the defect does not render the thing sold useless or totally unsuited to its purpose. Ark-La-Tex Builders v. Hoge, 344 So.2d 90 (La.App. 2d Cir., 1977). The record in this case reveals that, while plaintiffs have been subjected to extraordinary inconvenience on the five occasions when their home has flooded, they nevertheless have acquired real property which remains usable. Hence we conclude plaintiffs are entitled to a reduction in the original purchase price of their home.

There must be evidence in the record to support a reduction in price. R. O. Roy & Company, Inc. v. A & W Trailer Sales, 277 So.2d 204 (La.App. 2d Cir., 1973). This evidence may consist of expert opinion testimony. Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir., 1974). Defendant realtor Hawkins testified the house was worth 20% less on the real estate market due to its propensity for flooding. Since plaintiffs paid $23,650 for the house without knowledge of the defect, we find an award to plaintiffs of $4,730 against the seller represents a reasonable approximation of the difference between the warranted value and the market value at the time of the sale. See Guillory v. Pitre Ford Company, 345 So.2d 1274 (La.App. 3d Cir., 1977); Menville v. Stephens Chevrolet, Inc., supra. In granting this award for a reduction in price, we hold it was error for the trial court to deny recovery against the seller on the theory that the inflationary increase in value of the property and flood insurance proceeds adequately compensated plaintiffs for losses they suffered due to the flooding. There is no evidence that flood insurance recompensed plaintiffs for the diminution in the value of their property. The reduced worth of the property is applicable both to the inflated value and the value at the time of the sale.

The record shows defendant Mrs. Davis continued to be concerned about the possibility of flooding until she sold her house to plaintiffs. The record shows the house had not been inundated for almost four years prior to the sale. Local authorities continued to assure defendant seller and her neighbors that, due to continuing work on drainage, they should not be apprehensive of flooding during normal rainfall. However, fearing the knowledge would jeopardize her pending sale to plaintiffs, defendant Mrs. Davis admitted she was reluctant to give her name at a public hearing concerning the high water problem in July 1972. Therefore, we conclude Mrs. Davis, having concealed a known redhibitory defect, is answerable to plaintiffs for damages and attorney fees as provided by La. C.C. Art. 2545.

Although plaintiffs are entitled to proven damages beyond the reduction in price in this action, the record is barren of proof of these damages.

Plaintiffs have requested attorney fees in the amount of $2,000. After an examination of the record we conclude $1,500 is reasonable compensation for the services of plaintiffs’ attorney. See Baghramain v. MFA Insurance Co., 315 So.2d 849 (La.App. 2d Cir., 1975).

The property having been acquired by his wife prior to their marriage, it is undisputed that defendant Homer W. Davis had no interest to convey when he signed the act of sale to plaintiffs. His signature was demanded out of an abundance of caution by the parties involved in the sale. Since the deed clearly stated the capacity in which he signed and plaintiffs were not misled, we conclude Homer W. Davis is not liable as a seller.

Plaintiffs seek judgment against defendant realtors in solido with defendant seller. Absent a vendor-vendee relationship, there can be no redhibitory action. LeBlanc v. Ellerbee Builders, Inc., 317 So.2d 1 (La.App. 1st Cir., 1975). Plaintiffs’ remedy against the realtors is in damages for fraud under La. C.C. Art. 1847(9), or for negligent misrepresentation under La. C.C. Art. 2315. White v. Lamar Realty, Inc., 303 So.2d 598 (La.App. 2d Cir., 1974).

While there is some doubt plaintiffs have properly joined their action against the realtors with this redhibitory suit, we assume cumulation was proper in our discussion of the realtors’ liability.

Defendant Hawkins Realty was engaged by plaintiffs to assist them in the purchase of the house. Before the sale this realtor had no knowledge of the defective condition of the property; hence, there could be no showing of misrepresentation or fraud.

Although an employee of defendant Presson Realty had knowledge of the previous flooding when she listed the house for sale, she never informed her employer of this condition. Moreover, she was no longer employed by Presson Realty when plaintiffs inquired about the house. Pres-son does not incur liability based on the knowledge of its former employee.

Plaintiffs contend Presson Realty received notice of possible high water problems from rumors that the federal government would not assist in financing loans in the area. The record shows Presson Realty made inquiry to the local office of the FHA and was satisfied these rumors were unfounded. Knowledge that homes in the immediate vicinity were being constructed with PHA assistance also negated any duty Presson Realty may have had to inquire further.

Insofar as it dismisses plaintiffs’ demands against defendant Jessie Mae Beal Guice Davis, the judgment of the trial court is reversed and there is judgment in favor of James B. Davis and Patricia Davis against Jessie Mae Beal Guice Davis in the amount of $6,230 with legal interest from date of judicial demand until paid.

In all other respects the judgment is affirmed. Defendant Jessie Mae Beal Guice Davis is to pay all costs.


author: JONES, Judge.

text:
    G. L. HARRIS, Plaintiff-Appellee, v. John LEVY, Trustee, Defendant-Appellant.
    No. 13391.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.

      Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for defendant-appellant.
    Cook, Clark, Egan, Yancey & King by Stephen R. Yancey, III, Shreveport, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Defendant appeals from a judgment foreclosing a mortgage on Shreve Square by ordinary process and rejecting defendant’s reconventional demand for damages. We affirm.

On November 19, 1976, plaintiff sold defendant the Shreve Square complex for $1,740,000. The purchase price was paid by a $140,000 check representing the cash down payment and a $1.6 million installment note secured by a mortgage on the property and an assignment of rents and leases. The installments were due on the first day of each month commencing December 1, 1976. Defendant contemplated obtaining loans to secure the funds to cover the check given for the cash portion of the purchase price. The loans were never secured and the check was dishonored when presented for payment.

Defendant failed to pay the first installment when due on December 1st, and as a result of his failure to pay, plaintiff expressed his intent to exercise his rights to collect rents under the assignment. On December 16, defendant wrote plaintiff and enclosed a $40,000 check which he designated to be applied to the $140,000 down payment and a second check for $8,250.14 in payment of the December 1st installment on the note. Plaintiff refused to accept the checks because they were not certified as requested.

At a December 30th meeting defendant gave plaintiff a cashier’s check for $40,000 as partial payment on the $140,000 down payment. Defendant failed to substitute a cashier’s check for the $8,250.14 check, but assured plaintiff the check would be paid upon receipt by drawee ■ bank. Plaintiff presented this check for payment, but it was dishonored January 16, 1977. At this time defendant was delinquent on the December and January installments.

Plaintiff’s attorney notified defendant by letter dated January 19th that he was in default on payment on the note because the check given to pay the December installment was returned marked insufficient funds. Plaintiff had previously written defendant on January 12 making demand upon defendant to comply with the terms of the sale. Suit was filed February 4th.

The issues on appeal are whether defendant was in default in complying with the terms of the credit sale, and whether defendant was entitled to damages on his reconventional demand.

The evidence supports the trial court’s findings that (1) the note provided for acceleration of balance upon failure to pay installments; (2) defendant was in default of his obligation by failure to pay installments; (3) defendant had been placed in default by plaintiff’s letter of January 12, and by the letter of plaintiff’s attorney dated January 19.

Defendant’s reconventional demand seeks damages for plaintiff’s disturbance of defendant’s possession of the property by collecting rent from tenants following plaintiff’s notice to tenants to pay rent to plaintiff and not the defendant, plaintiff’s misrepresentation of the status of tenants’ leases and plaintiff’s slander of defendant.

The lower court found plaintiff did not disturb defendant’s possession of the property by advising tenants to pay rent to plaintiff instead of defendant. The court held plaintiff’s letters advising tenants to rely on public records which showed plaintiff to be the owner and to pay rent to plaintiff were justified. We find plaintiff’s letters notifying tenants to pay plaintiff were justified under the assignment of rents and leases executed at the time of sale because defendant failed to pay the monthly installments and by the terms of assignment plaintiff was entitled to collect the rents upon his default.

The record supports the trial judge’s finding plaintiff did not misrepresent the status of leases to defendant. The evidence establishes plaintiff made a full disclosure to defendant of the status of each lease during negotiations preceding the sale.

As part of his reconventional demand, defendant claims plaintiff publicly defamed him. After trial on five nonconsecutive days between April 22 and May 20, 1977, and without benefit of transcript, the trial court found “Mr. Harris did, at Dominic’s, call Mr. Levy a crook” but declined to award damages. The court found defendant failed to prove plaintiff maliciously made the statement. The court refused to presume malice and declined to award damages.

The lower court erred in finding the evidence established a slanderous statement. The record reflects plaintiff did not call defendant a “crook” at Dominic’s. The only evidence in the record as to slander of this nature is testimony of defendant’s Shreve Square manager that in the manager’s office plaintiff said, “The people from New Orleans are a bunch of crooks.” This alleged statement was made in the presence of the secretary, the maintenance man and a new tenant. Plaintiff denies making the statement. The maintenance man did not recall plaintiff making any statement reflecting on defendant’s character and his testimony did not corroborate that of the manager that the alleged statement was made. Among the witnesses not called to corroborate defendant’s allegations of slander was the secretary, an employee of Shreve Square. Defendant’s failure to call this witness where he had the burden of proof and where he had some control over or close relationship to the witness creates the presumption her testimony would be adverse to defendant. Lowenburg v. Labor Pool of America, Inc., 296 So.2d 846 (La.App., 4th Cir. 1974). Defendant failed to prove the slanderous statement was made.

Defendant further contends he was slandered when plaintiff called him a profane name, (“s.o.b” without using our abbreviation). Two witnesses testified to plaintiff’s communication of same. This statement, although disgusting, abusive and uncouth, is not slanderous per se. Dunn v. Bruat, 155 La. 376, 99 So. 296 (1924). There was no proof of all of the essential elements of a defamation action.

For reasons assigned, the judgment of the lower court is affirmed at appellant’s cost.

      . The sale with mortgage and assignment of leases was not recorded at the time executed on November 19, 1976, because the parties agreed to withhold recordation until the down payment had been fully paid.

      . See Carter v. Catfish Cabin, 316 So.2d 517 (La.App., 2d Cir. 1975) where elements were stated as (1) defamatory words; (2) publication, that is, communication to some other person than the one defamed; (3) falsity; (4) malice, actual or implied, and (5) resulting injury.


text:
    Grady BUTCHER, Plaintiff-Appellant, v. LOUISIANA & ARKANSAS RAILWAY COMPANY, Defendant-Appellee.
    No. 13392.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.
    Writ Refused March 3, 1978.
    Ford Stinson, Benton, Burch Downman, Houston, Tex., for plaintiff-appellant.
    Wilkinson, Carmody & Peatross by Arthur R. Carmody, Jr., Shreveport, for defendant-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiff appeals from the rejection of his demands under FELA (45 U.S.C. § 51 et seq.) for injuries allegedly sustained while in the employ of the railroad. We affirm.

FELA imposes liability on the railroad for an injury to an employee “ . resulting in whole or in part from the negligence of any of the officers, agents, or employees of [the railroad]” 45 U.S.C. § 51. Suit was originally filed in the federal court (U.S.D.C., E.D., Tex.) and was transferred to the Western District of Louisiana where it was eventually dismissed without prejudice. Plaintiff then brought suit in Bossier Parish where the injury allegedly occurred on November 30, 1970.

In summary, plaintiff claimed to have injured his back while manually moving cross-ties when he stepped into a hole in the ground. Plaintiff continued to work on that day and for about four months afterward until he terminated his employment in April, 1971. About two months later, he saw a general practitioner M.D. but gave him no history of the alleged incident. In August, 1971, he saw an orthopedist and related to this doctor a history of the incident.

Those railroad employees who were with plaintiff on November 30, 1970, affirmatively testified that plaintiff made no complaints then or afterward about having sustained any injury of any type. Plaintiff’s last day of work was as an open laborer for one day in Baton Rouge. His Baton Rouge foreman testified that plaintiff made no reference to any back injury but simply told the foreman that he was quitting his job because the work was too hard.

Under these circumstances, the lower court did not err in rejecting plaintiff’s demands. Plaintiff did not prove that he sustained an injury while in the railroad’s employ. Even should we have found otherwise, it is not shown that the assumed injury resulted from any negligence, in whole or in part, of the railroad. According to plaintiff, the alleged hole was a six-inch indentation in the ground some 40 feet away from the railroad track. Even should we assume the existence of the hole, it is not shown that it presented an unreasonable risk to plaintiff. See Burch v. Reading Co., 240 F.2d 574 (3rd Cir. 1957); Frizzell v. Wabash Ry. Co., 199 F.2d 153 (8th Cir. 1952) cert. denied. FELA does not impose liability without fault. Burch, supra.

For reasons assigned by the lower court and summarized here, at the cost of appellant, judgment is

AFFIRMED.


text:
    Robert O. SKIPWORTH, Plaintiff-Appellee, v. McELROY METAL MILL, INC., et al., Defendants-Appellants.
    No. 13393.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.
    En Banc. Rehearing Denied Jan. 16, 1978.

      Blanchard, Walker, O’Quinn & Roberts by William Timothy Allen, III, Shreveport, for defendants-appellants.
    Maynard Cush, Shreveport, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

The employer and insurer appeal from a judgment for total and permanent disability benefits awarded the employee under the Workmen’s Compensation Law. We affirm.

Appellants contend that the employee was not a skilled or semi-skilled laborer as found by the trial court, but was a common laborer; that under either classification, the employee was not totally and permanently disabled, and that appellants’ motions below to reopen the case and for a new trial, both based on the grounds of newly discovered evidence, should have been granted.

At the time of the accident, employee had been employed about four months and had completed a 90-day training program as an operator of a metal corrugating machine. Employee was paid the wages of an operator even though he was classified as an operator-trainee. Plaintiff and a fellow operator were attempting to remove from the corrugating machine a sheet of metal which had jammed it when plaintiff’s right hand was severely crushed by a roller on the machine.

Plaintiff’s long finger was surgically amputated and other reconstructive surgeries were performed on plaintiff’s ring and index fingers. Estimating medical disability at 33 percent, the reconstructive surgeon testified that plaintiff will not be able to use his hand for jobs which require a moderate amount of dexterity or strength.

Plaintiff is unable to grip and hold either small objects of less than Vi inch diameter or large bulky objects weighing 25 lbs. or more. Plaintiff’s hand is sensitive to bumps and knocks and to changes in weather and becomes painful when used continuously in a squeezing motion.

As an operator of a corrugating machine, with a helper, plaintiff is required to feed sheets of metal into the machine and then to pull the corrugated sheet from the machine onto a buggy. Normally, the operator performs these functions while holding in his right hand the control switch box for the machine. The switch box may sometimes be placed by the operator into a catch box next to the machine; from which the switch box can be operated. In addition, an operator is sometimes required to manually perform tasks which include:

(1) Unjamming the machine rollers by using a torch or shears.

(2) Adjusting “stands” on the machine by turning knobs.

(3) Changing shear blades of 25-30 lbs. each.

(4) Removing and replacing eight sets of nuts and bolts in adjusting the machine.

(5) Reworking and removing air cylinders.

(6) Placing large and heavy rolls of steel onto the machine.

These tasks, of course, would require plaintiff to grasp and use wrenches and other implements such as cheater bars.

Under the circumstances, the lower court was correct in determining that plaintiff was a skilled or semi-skilled laborer, that plaintiff did not have sufficient dexterity to perform some of the functions required of him, that some functions would cause plaintiff “considerable pain,” and that plaintiff was totally and permanently disabled within the meaning of the law in effect at the time of the accident on July 7, 1971. Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977).

Beginning in August, 1972, plaintiff worked intermittently at several jobs. For about two months in 1972, he was a clerk at a convenience store. For about the first six months of 1974, he operated a forklift for Otis International. Later in 1974 (June and July), he worked at Beaird-Poulan on an assembly line installing nuts and bolts on chain saws and later boxing the assembled product. In July and August, 1974, plaintiff worked in a supervisory capacity for Olincraft, and from March 30, 1975, until the trial in December, 1976, plaintiff worked as an exterminator, spraying homes with insecticide, for Terminex. Plaintiff sought other jobs during the period between 1972 and 1977 with Baker Oil Tools, Halliburton, Texaco and Roadway Truck Lines. Only the employment at Beaird-Poulan was remotely similar to plaintiff’s employment before the accident. Plaintiff testified that he could not do the work on the assembly line (bolting the cylinder head to the chain saw engine) which he tried for two weeks before being shifted to the boxing department, packaging the finished product. Plaintiff said the packaging activity caused soreness and inflammation and that he quit this position because of this and because the foreman suggested he either quit or be fired. Plaintiff thereafter attended Louisiana Tech University.

In the motion for a new trial, the employer and insurer allege that Director of Personnel of Beaird-Poulan would testify that the official personnel records reflect that plaintiff quit the Beaird-Poulan job to go to work for Diamond M Drilling Company for higher wages. It was this proposed evidence on which appellants sought a new trial after judgment and a reopening of the case below after submission before judgment. La.C.C.P. Arts. 1972, 1632. In the absence of a clear abuse of discretion, it is not error for a trial judge to refuse to reopen a case for evidence. Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970). The evidence (as alleged above) on which appellants sought a new trial or a reopening, in our opinion, could have been obtained during trial. The fact of plaintiffs employment with Beaird-Poulan arose during the direct examination of plaintiff and appellants had, or could have obtained, time during the trial in which to informally inquire of, or in which to subpoena either or both, Beaird-Poulan’s personnel records and its foreman. See Chauvin v. Chauvin, 297 So.2d 234 (La.App. 3d Cir. 1974). The alleged grounds for a new trial were not mandatory under 1972 and we find no abuse of discretion under La.C.C.P. Art. 1973.

The judgment below also denied plaintiff statutory penalties and attorney’s fees. Plaintiff did not answer the appeal. Penalties and attorney’s fees may not be awarded under these circumstances.

At appellants’ cost, judgment is

AFFIRMED.


text:
    Gregory T. WHITTEN, Plaintiff-Appellee, v. EMPIRE FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellant.
    No. 13394.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 5, 1977.

      Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, Jr., Monroe, for defendant-appellant.
    Whitten & Blake by Leon H. Whitten, Jonesboro, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

The sole issue on appeal is whether the trial court correctly decided that uninsured motorist coverage, after the 1974 amendment to the Uninsured Motorist Statute, is tantamount to excess coverage over the tortfeasor’s liability policy limits. We agree with the trial court and affirm its judgment.

The district judge wrote a comprehensive and scholarly opinion. Since the opinion adequately and correctly sets forth the law and the facts, we adopt that portion pertinent to the issue on appeal:

“On November 24,1975, Gregory T. Whit-ten, while operating a motorcycle on a public highway in Lincoln Parish, Louisiana, was involved in a head-on collision with a vehicle driven by Ronnie Cravens and sustained serious injuries. At the time the Cravens automobile was covered by a liability insurance policy issued by Commercial Union Insurance Company with limits of $5,000.00 for injury to one person. Whitten had been issued a contract of insurance by Empire Fire and Marine Insurance Company (hereinafter referred to sometimes simply as ‘Empire’) which provided ‘uninsured motorist’ coverage with limits of $5,000.00 for injury to one person.

“In consideration of the payment of $5,000.00 to him under the above described liability policy, Whitten granted a full release to Cravens and his liability carrier and demanded from Empire the sum of $5,000.00 under the ‘uninsured motorist’ section of his policy. When the claim was rejected by Empire upon the advice of counsel, Whitten filed this suit against Empire for ‘uninsured motorist’ benefits, . The defendant answered, admitting the ‘uninsured motorist’ coverage, but averred that it was entitled to recover from plaintiff the amount of his settlement with Cravens and Commercial Union and specially pled the defense of set-off. Urged as a second special defense was the plea of estoppel based upon the assertion that by his settlement with the tortfeasor and his liability carrier the plaintiff had denied defendant’s right of subrogation. Defendant also filed a re-conventional demand predicated basically upon the same rationale as the plea of set-off.

“The parties waived a trial on the merits in this matter and submitted their dispute upon a written stipulation reciting essentially the facts set forth above, with the added agreement that the accident was due solely to the negligence of Cravens and that plaintiff’s injuries were such that he would have been entitled to recover damages in excess of $10,000.00.

“The legal question posed by this litigation is whether the defendant is entitled to recover from plaintiff, or receive credit for, the $5,000.00 paid to plaintiff by Commercial Union on behalf of Cravens in settlement of plaintiff’s claims against them. If this question is answered in the affirmative, defendant owes plaintiff nothing since its policy limit was $5,000.00. Resolution of that issue mandates a review of the history of Louisiana’s statutory provisions dealing with ‘uninsured motorist’ coverage.

“Act 187 of 1962 (La.R.S. 1406 D) inaugurated ‘uninsured motorist’ (referred to hereinafter simply as ‘UM’) protection in Louisiana with, the requirement that automobile liability insurers issue a minimum UM coverage of ‘5/10’ unless the insured rejected the coverage. In general an ‘uninsured motor vehicle’ was defined as one which was not covered by liability insurance. Section D(4) of the statute contained the following language:

In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.

“The UM statute was amended by Act 137 of 1972 to expand the definition of ‘uninsured motor vehicle’ to include a vehicle with liability coverage less than the UM coverage carried by the insured, thus allowing the insured to recover the difference between the underinsured tortfeasor’s liability limits and his own damages up to his UM limits.

“The definition of ‘uninsured motor vehicle’ was again changed, by Act 154 of 1974, to include an insured motor vehicle with liability coverage less than the amount of the damage which the injured insured or his passengers were entitled to recover. The effect of this change was discussed as follows in 35 La.L.Rev. 618:

The change in the definition of uninsured motor vehicle is important because all the insured must now establish is that the damages he has suffered are greater than the liability limits of the tortfeasor. In effect, UM coverage is now excess coverage over the tortfeasor’s BI liability limits and no longer operates as an absolute limit of recovery. For example, if a plaintiff proved damages of $8,000 and had $5,000 UM coverage and his tort-feasor had BI limits of $5,000, there could be no recovery under either the 1962 statute or the 1972 statute. Assuming the tortfeasor’s insurer was solvent, the plaintiff would be denied recovery under Act 187 of 1972 [1962] merely because the tortfeasor was in fact insured. Recovery would also be denied under the 1972 amendment because the tortfeasor’s BI liability coverage was not less than the plaintiff’s UM coverage. However, recovery of $3,000 will be allowed the insured under the 1974 amendment because this amount is the difference between the insured’s damages and the BI limits of the tortfeasor. Added to the $5,000 BI coverage received from the tortfeasor’s insurer, the UM recovery will thus fully compensate the plaintiff.

“In order to conform to and implement the 1974 amendment to the UM statute the following endorsement was added to plaintiff’s contract of insurance:

It is agreed that:
1. (a) The definition of ‘uninsured highway vehicle’ shall also include a highway vehicle for which the owner or operator has a bodily injury liability bond or insurance policy applicable at the time of the accident but the limits of such bond or policy are insufficient to pay the full amount the insured is legally entitled to recover for damages because of bodily injury caused by the accident;
(b) in the event the owner or operator has such a bodily injury liability bond or insurance policy applicable to the accident, this insurance shall apply as excess insurance over such liability bond or insurance policy, up to the amount the insured is legally entitled to recover for damages because of bodily injury caused by the accident subject to the limits specified for this insurance.
2. (a) Any amount payable under the terms of this insurance because of bodily injury sustained in an accident by a person who is an insured under this insurance shall not be reduced by any sums paid on account of such bodily injury by or on behalf of
(i) the owner or operator of the uninsured highway vehicle and
(ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under liability coverage;
(b) that part of the ‘Limits of Liability’ provision pertaining to such a reduction is amended accordingly.
3. The company shall not be obligated to make any payment because of bodily injury to which this insurance applies and which arises out of the ownership, maintenance or use of an uninsured highway vehicle until after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements.

“Examination of Louisiana jurisprudence fails to reveal any reported case dealing with the precise legal question presented in this litigation. Defendant understandably relies heavily upon Nicholson v. Casualty Reciprocal Exchange, 332 So.2d 906 (La.App. 2d Cir., 1976) which involved a similar factual situation. The claimant was injured in an accident caused by the negligence of a party who had liability insurance with $5,000.00 limits and the claimant had UM coverage of $10,000.00. The litigants stipulated that plaintiff had sustained injuries for which he would have been entitled to recover $15,000.00 in damages. The tort-feasor’s liability carrier deposited $5,000.00 into the court registry and the UM carrier did likewise, but refused to pay the additional $5,000.00 demanded by plaintiff. In ■ the words of the court,

The sole question for review is whether the enforcement of the subrogation provision of the uninsured motorist provision of the State Farm policy by allowing it to receive credit for the amount received by Mrs. Nicholson from the insurer of the tortfeasor, unlawfully deprives her of an additional amount of uninsured motorist coverage for which a premium was paid under the second policy issued to plaintiffs by State Farm.

“Fundamental to a resolution of the issue was the court’s preliminary determination that the accident occurred prior to the effective date of the 1974 amendment and that, consequently, the 1972 amendment was applicable. The court then concluded:

The plaintiffs had provided themselves with a total of $10,000 uninsured motorist coverage for any one person. The negligent driver, Dockery, was insured for the sum of $5,000 for personal injury to any one person. He was therefore underin-sured in so far as plaintiff, Stella Nicholson, was concerned to the extent of $5,000. Payment of this amount by State Farm has given Mrs. Nicholson the full protection which the contracts of insurance and the uninsured motorist statute require.

“This result was also deemed to be consistent with the upholding of defendant’s subrogation rights under Section D(4) of the UM act.

“A finding that the 1972 amendment rather than the 1974 amendment governed was also a crucial factor in Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3d Cir., 1974). In that case the tortfeasor had liability coverage for injuries to more than one person of $10,000.00 and plaintiff had UM coverage for injuries to more than one person of $10,000.00. The tortfeasor’s liability carrier paid its policy limits and was released and plaintiff sought to recover an additional sum under his UM coverage. Recovery was denied under the provisions of the 1972 amendment, but the court added:

We are inclined to agree with counsel that plaintiffs claim would be covered if the statute as amended in 1974 had been in effect at the time of the accident. However, it was not.

“Defendant argues forcefully that, despite amendments to the UM act, Section D(4) thereof granting indemnity or subro-gation rights to the UM carrier remains unchanged, and cites the rationale of the Nicholson case as decisive in the disposition of this litigation. It is obvious that, unless the 1974 amendment made a significant change with reference to the UM carrier’s indemnity rights, defendant’s position must be accepted. At the same time, as will be pointed out, recognition of the UM carrier’s subrogation rights could render the 1974 amendment nugatory. As pointed out in Peyrefitte v. Harvey, 312 So.2d 159 (La.App. 1st Cir., 1975):

There is a presumption that all legislative acts are enacted for some definite purpose and the Courts in construing them must endeavor to give an interpretation that will give them effectiveness and purpose, rather than one which makes them meaningless and useless. (Citations omitted)

“An analysis of the public purpose implicit in the original UM act and subsequent amendments is required to ascertain whether they present some coherent legislative scheme or design. This court is of the opinion that the critical clue is found in the evolving definition of ‘uninsured motor vehicle’ found in the various acts.

“In the original 1962 enactment a UM vehicle was generally one which was not covered by any liability insurance. The public purpose was to give the innocent party some measure of protection through the medium of UM coverage. Therefore, he could under appropriate circumstances collect from his UM carrier which was permitted, in turn, to proceed against the uninsured tortfeasor. Logically, the innocent party would not be permitted to subvert this purpose by sabotaging his carrier’s right of indemnity by a prior unilateral settlement with the tortfeasor, since this would constitute a prohibited double recovery.

“By redefining an ‘uninsured motor vehicle’ as one where the liability coverage was less than the UM coverage, the tacit public purpose of the 1972 amendment was to enable recovery by the innocent party to the accident up to the limits of his UM coverage only. For example, as pointed out in the Nicholson case, supra, the negligent driver was ‘underinsured insofar as plaintiff, Stella Nicholson, was concerned to the extent of $5,000.00.’ However, it is significant that this case did not hold that by withdrawal of the $5,000.00 deposited by the tortfeasor’s liability carrier in the court registry (which was the equivalent of a settlement and release) the plaintiff had frustrated his UM carrier’s subrogation rights and was consequently not entitled to any recovery from that carrier. As formulated by the court, the only question was whether enforcement of the subrogation clause required the UM carrier to receive credit for the sum paid by the tortfeasor’s liability carrier. As a practical matter, this case simply enforced the intent of the 1972 amendment that the innocent party not receive in toto more than his UM limits.

“The only logical conclusion to draw from the language of the 1974 amendment, redefining ‘uninsured motor vehicle’ as one on which the liability insurance coverage was less than the damages sustained by the innocent party, is that it was designed to remove the limits of recovery fixed by the 1972 legislation and permit full recovery of damages in appropriate cases. This understanding is reflected in the terms of the endorsement added to plaintiff’s contract of insurance by defendant after passage of the 1974 amendment. In substance, where the tortfeasor had liability coverage which was less than the damages suffered by the innocent party, the latter’s UM coverage because ‘excess’ after his settlement with the tortfeasor’s liability carrier. However, if the defendant’s stated position in this case is carried to its logical conclusion, i. e., that the UM carrier is entitled to credit for settlement proceeds received by plaintiff, the UM coverage never becomes ‘excess’. In effect, therefore, the 1974 amendment becomes meaningless and the law reverts to the 1972 amendment under which the UM coverage became the limits of recovery.

“In Hebert v. Green, 311 So.2d 223 (La.1975), the Louisiana Supreme Court considered the validity of the ‘consent to settle clause’ under the UM section of a contract of insurance with reference to a settlement made with an insured co-tortfeasor. Holding adversely to the UM carrier, the court stated:

The mandatory uninsured motorist coverage of R.S. 22:1406, subd. D may not be thwarted by policy exclusions serving no legitimate purpose
This provision (R.S. 22:1406, subd. D) enunciating the State’s public policy as regards the required minimum uninsured motorist coverage limits, has been applied so as to deny effect to other policy provisions which would deny or reduce the mandated coverage.

“To summarize, this court finds that a consideration of present Louisiana law dealing with UM coverage, the contract of insurance existing between these parties, and the facts of this particular case, leads to the conclusion that plaintiff is entitled to the proceeds of his settlement with Cravens’ liability carrier and also to the full $5,000.00 owed by defendant under its UM coverage, since plaintiff’s damages exceed this combined sum of $10,000.00. Defendant is not entitled to ‘set-off’ the $5,000.00 received by plaintiff from Commercial Union since this would violate the purpose of the 1974 amendment and would also be inconsistent with the endorsement to the contract of insurance which specified that in certain circumstances the UM coverage would constitute ‘excess’ insurance. Consequently, to the extent that Section 4(D) of the UM statute is inconsistent with the latest expression of legislative intent coupled with the parties’ implementation of that public purpose as reflected in the modification of their contract of insurance, that section of the statute pertaining to indemnity or sub-rogation must be deemed invalid.”

The remainder of the opinion is not relevant to the issue on appeal and has been omitted.

The judgment in favor of plaintiff is affirmed at defendant’s cost.