text:
    STATE of Louisiana, Appellee, v. Hal BROWN, Jr., Appellant.
    No. 56097.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Aubrey E. Pate, Kenner, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant appeals from a conviction of indecent behavior with a juvenile, La. R.S. 14:81, and a sentence to two years in the parish prison, suspended.

The prosecutor concedes that we must reverse this conviction on the defendant’s first assignment of error unless we are willing to overrule State v. Prieur, 277 So.2d 126 (La.1973). In the 1974 trial, over objection the State introduced evidence of another unrelated sex offense although it had not given the defendant advance notice of its intent to do so, in violation of Prieur. If admissible despite this failure, the purpose of the evidence was to show criminal intent to commit the crime charged, i. e., by showing a similar purpose to a similar act in the past, one of the limited purposes for which evidence of other crimes is admissible in aid of proof of guilt of the crime charged, La.R.S. 15:445, 446.

We are unwilling to overrule Prieur. It is our belief that the decision is a valid interpretation safeguarding the legislative intent of La.R.S. 15:445, 446, and the general principle of our criminal procedure that the accused should be convicted on evidence of the crime with which he is charged, not because of his possible bad reputation or of his possible guilt of conduct independent of the offense for which tried.

For the reasons assigned, the conviction is reversed and the case is remanded for a new trial in accordance with law.

Reversed and remanded for a new trial.

SANDERS, C. J., dissents. See dissent in State v. Prieur, La., 277 So.2d 134.

SUMMERS and MARCUS, JJ., dissent.


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. Wendell MARTIN.
    No. 56210.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Ron-aid L. Monroe, Asst. Dist. Attys., for plaintiff-relator.
    James J. Gleason, III, Russell L. Breckenridge, New Orleans, for defendant-respondent.
   SANDERS, Chief Justice.

The state charged the defendant, Wendell Martin, with procuring, receiving, and concealing property worth $2,000.00 stolen from Helpern’s Fashion Bar. LSA-R.S. 14:69. Defense counsel filed a motion to suppress the evidence, consisting of ten fur coats and a fur hat, on the ground that the affidavit was insufficient to establish probable cause for the issuance of the search warrant. After a hearing on the motion, the trial court granted defense counsel’s motion to suppress the evidence. On application of the State, we granted supervisory writs to review the ruling. See 312 So.2d 871 (1975).

The search warrant at issue was signed by Judge Rudolph Becker, Jr., based on the affidavit which reads:

“On 9-9-74 at approximately 5 :30 PM, Dets. Richard Hosselle and John O’Brien met with a confidential informant whose information has resulted in arrests and convictions in the past. The informant told officers that he had attended a party on 9-8-74 at 3014j^ Paris Ave., the residence of a negro female known to him as Lurine Taylor. The informant further stated that he arrived in the company of a negro female. He also stated that he arrived at about 8:00 PM and stayed to well after 2:00 AM. The informant further stated that most of the subjects at the party were smoking marijuana. When asked by Officers if he (the informant) had smoked any marijuana at the party and he replied yes. The informant stated that after everyone was ‘pretty high’ that Lurine Taylor approached him and asked him if he was interested in buying a fur coat for ‘his Lady’. The informant replied yes and was taken to a bedroom where a large assortment of fur coats were on a bed. He stated that the coats were of different design and colors, but all appeared to be new and all were ladies. The informant stated that Lurine Taylor stated that some coats were $50.00 and some were $75.00. The informant stated that he purchased one coat for $50.00 and gave it to his date. The informant stated there were several other subjects in the room looking at the coats but he did [not] know if anyone else bought any. The informant also stated that Lurine Taylor asked him if he was interested in any TVs either color or black and white or stereo equipment that she could get them for him at ‘a greatly reduced price’. She also stated to the informant that they would be new and in cartons. Dets.
Hosselle and O’Brien checked with the Urban Squad who covers the location of The Fashion Bar, and they stated that The Fashion Bar was burglarized on 9-5-74 and at this time over $7,000.00 worth of coats were taken.”

After its issuance, the police executed the search warrant and seized ten ladies coats and one ladies hat.

The sole issue is whether the affidavit is adequate to support the issuance of a search warrant. Defendant contends that the affidavit does not contain an adequate factual basis for finding both the informant and the information reliable.

In State v. Paciera, 290 So.2d 681 (1974), we reviewed the United States Supreme Court decisions dealing with this issue: United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L. Ed.2d 697 (1960).

In Paciera, we concluded:

“If we can deduce a rule from these cases, it is this: The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b), if the information came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information.”

The present affidavit shows that the informant had furnished accurate reports in the past. It also describes in detail the informant’s visit to the residence and his personal observations while there, including the activities of the persons present, the presence of the coats, and their offer for sale. Finally, the affidavit reflects that the detectives investigated and found that The Fashion Bar, located near the residence, had been burglarized five days before the informant visited the residence. In our opinion, the affidavit contains sufficient facts from which the magistrate might find reliable both the informant and the information supplied by him. In view of this conclusion, no further investigative corroboration was required. State v. Humble, La., 309 So.2d 138 (1975); State v. Boudreaux, La., 304 So.2d 343 (1974); State v. Paciera, La., supra; Spinelli v. United States, supra.

For the reasons assigned, the ruling of the district court suppressing the evidence is reversed, and the case is remanded to the Criminal District Court for the Parish of Orleans for further proceedings according to law and consistent with the views herein expressed.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Joseph BATISTE.
    No. 56087.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.

      Philip Schoen Brooks, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., G. Thomas Por-teous, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Parish of Jefferson, for plaintiff-appellee.
   MARCUS, Justice.

Joseph Batiste was indicted by the grand jury for the Parish of Jefferson for the murder of Johnnie Baxter on February 24, 1971, in violation of La.R.S. 14:3o. After trial by jury, defendant was found guilty as charged and was subsequently sentenced to death. Defendant appeals his conviction and sentence to this court. Twelve bills of exceptions are presented for our review.

FACTS

On February 23, 1971, Mardi Gras day, Johnnie Baxter and his date, Laverne Brewer, met Joseph Batiste around 5 :30 or 6:00 p. m. in the French Quarter. Baxter introduced Batiste to Miss Brewer as “Butch.” She was told by Baxter that they had served together in the Merchant Marines. Batiste was described by Miss Brewer as having an “afro,” sideburns, goatee and mustache. These parties, together with others, left in Batiste’s car and went to the Red Barn Lounge. Ultimately, Batiste, Baxter and Miss Brewer and an unnamed companion of Batiste left in Batiste’s car. While on the I — 10 service road off Clearview in Jefferson Parish, Batiste stopped the car, got out and opened the hood. Baxter alighted to see the cause of the trouble. Miss Brewer then saw Batiste, with a gun in his hand, shoot Baxter twice. Following the shooting, Miss Brewer got out of the car and was then grabbed by Batiste and his companion. They forcibly tried to drag her back into the car; however, she was able to break away and attract the attention of five or six male juveniles in the area. They hid in the bushes alongside the road. The Batiste vehicle circled the area once and then departed. Baxter died of the bullet wounds at the scene of the crime. Immediately after Baxter’s burial (about three days after the killing), Miss Brewer identified Batiste from a series of photographs shown to her by a detective. Batiste was later arrested. According to Miss Brewer, she was in the company of Batiste on the day of the shooting from 5 :30 p. m. until about midnight, at which time Batiste fatally shot Baxter. In June of 1971, Miss Brewer viewed a physical lineup and picked out two individuals as the possible perpetrators of the crime; however, she was unable to make a positive identification of Batiste. According to her testimony, she was unable to identify Batiste at the physical lineup because his hair seemed shorter and she did not see his goatee, mustache or sideburns. About a month prior to trial, Miss Brewer was again shown a series of photographs by the state attorney. Miss Brewer immediately identified Batiste. However, this identification was suppressed by the court. At trial, Miss Brewer positively identified Batiste as the assailant based upon her observation of him during the seven-hour period he was in her company on Mardi Gras day.

BILL OF EXCEPTIONS NO. 1

This bill was reserved to the rulings of the trial court concerning the sufficiency of the particulars furnished by the state in response to defendant’s motion for a bill of particulars.

First, to the question asked: “Was there any other show-up other than the line-up held on Tuesday, June IS, 1971?” the state answered: “No.” The complaint here is that the answer was ruled responsive despite the fact that Miss Brewer had been shown certain photographs on dates other than June 15, 1971. The complaint is without merit. The question is somewhat confusing, but seems to refer only to physical lineups. The response by the state was technically correct. If defendant desired information as to photographic display or identification, he should have been more specific in his request. Hence, the ruling of the trial judge was not error.

Next, defendant sought the names of the individuals who appeared before the grand jury which indicted him. This is a request for pre-trial discovery which is unavailable to the defense. State v. Burkhalter, 260 La. 27, 255 So.2d 62 (1971). Thus, the trial judge correctly refused to require the state to furnish this information.

The last ruling concerns the approval by the trial court of the refusal by the state to answer the question propounded in the supplemental application for particulars : “Has the ownership of the. alleged gun in this case been determined?” At the outset, it should be noted that the inquiry does not request the state to produce or permit defendant to inspect the gun. Rather, ij: simply requests information as to its ownership. The gun was not introduced in evidence at trial. The only evidence concerning the gun was the testimony of Miss Brewer that a gun was used by defendant when he fatally shot Baxter. There was no evidence that the victim ever possessed a gun or that Batiste acted in self-defense. Accordingly, ownership of the gun was not at issue, nor could the fact of ownership be considered exculpatory in nature. State v. Thomas, 306 So.2d 696 (La.1975); State v. Hillman, 298 So.2d 746 (La.1974). Hence, the trial judge properly denied defendant’s request for this information. In sum, this bill lacks merit.

BILL OF EXCEPTIONS NO. 2

Defendant excepted' to the trial court’s sustaining the state’s challenge for cause when a prospective juror answered that he could not, no matter what the evidence, return a verdict of death. It is claimed that the ruling is contrary to the holding in Witherspoon v. Illinois, 391 U. S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Our jurisprudence has interpreted With-erspoon as not prohibiting the state from excluding for cause a prospective juror who indicates that, in the case to be tried, he could under no circumstances return a verdict of guilty with capital punishment. State v. Brown, 302 So.2d 290 (La.1974); State v. Hayes, 271 So.2d 525 (La.1973); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971). Clearly, we have no Witherspoon violation here. Hence, this bill is without substance.

However, it should be noted that this case was tried in April of 1972. In June of 1972, the United States Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, declaring the death penalty unconstitutional as .then imposed and administered under statutes similar to Louisiana enactments on the same subject. Hence, the imposition of the death penalty upon defendant in the instant case is in violation of the Furman decision. Accordingly, it is necessary that we annul and set aside the sentence imposing the death penalty and remand the case to the trial court for imposition of a life sentence. State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).

BILLS OF EXCEPTIONS NOS. 3, 4 AND 5

Bills of Exceptions Nos. 3 and 4 were taken to the rulings of the trial court allowing, over defense objections, the removal by a state witness of the contents of a box containing evidence taken at the scene of the crime and a reading of a list of these items by this witness. Defendant argues that this was done solely for the purpose of inflaming and arousing the emotions of the jurors. Bill of Exceptions No. 5 was reserved to the ruling allowing the introduction into evidence of some of these articles. The objection here is directed to the alleged insufficiency of the chain of custody.

The witness in question was the evidence clerk. The foundation was laid by having the clerk identify the objects as the same ones which the police had deposited with him. In the process, the contents of the box were removed and identification was made by the witness. This procedure was perfectly proper in order to establish the identification of each object. Nothing was done to inflame or arouse the emotions of the jurors. Hence, there is no merit to Bills of Exceptions Nos. 3 and 4.

Likewise, we find no substance to the complaint that the chain of custody was not sufficiently established to permit the introduction into evidence of a live cartridge, two spent casings and a pair of moccasins (S-7, S-8, S-9 and S — 11). These items were recovered from the scene of the crime by Technician Engman and turned over to Officer Ripp who released the live cartridge and two spent casings to Officer Vega of the New Orleans Crime Lab and the moccasins to Officer Olsen. Officer Vega performed a ballistics examination of the items delivered to him and thereafter released them to Officer Olsen. Officer Olsen then turned over all the articles to the evidence clerk who maintained possession of them until he produced them for introduction into evidence at trial.

All witnesses clearly identified the objects except Officer Ripp. He remembered receiving the articles from Technician Engman and releasing the live cartridge and two spend casings to Officer Vega and the moccasins to Officer Olsen. While making a positive identification of the moccasins, he was unable to say with absolute certainty that the live cartridge and two spent casings were the same ones he had handled, as he had failed to personally mark them.

In regard to the evidence necessary to establish a chain of custody, we stated in State v. Gladden, 260 La. 735, 257 So.2d 388 (1972) that:

The chain of custody or connexity of the evidence is a matter for the jury to decide, so long as the objects introduced are shown to be reasonably connected with the defendant or the crime and have some relevancy which the trial judge considers sufficient to warrant their introduction into evidence. State v. McQueen, 257 La. 684, 243 So.2d 798 (1971); State v. Pesson, 256 La. 201, 235 So.2d 568 (1970); State v. Coleman, 254 La. 264, 223 So.2d 402 (1969).

In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), we held:

To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence.
The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient. State v. Coleman, 254 La. 264, 223 So.2d 402; State v. Martin, 250 La. 705, 198 So.2d 897; State v. Bertrand, 247 La. 232, 170 So.2d 386.
The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury. State v. Wright, 254 La. 521, 225 So.2d 201; State v. Whitfield, 253 La. 679, 219 So.2d 493; State v. Progue, 243 La. 337, 144 So.2d 352; 2 Wharton’s Criminal Evidence (12th ed.), § 673, p. 617.

See also State v. Freeman, 306 So.2d 703 (La.1975) and State v. Flood, 301 So.2d 637 (La.1974).

The lack of positive identification by one witness of the live cartridge and two spent casings goes to the weight of the evidence rather than to its admissibility. From a totality of the evidence, we find that it is more probable than not that the objects objected to were the ones taken from the scene of the crime. The chain of custody was sufficiently established to permit introduction into evidence of the items. Hence, there is no merit to Bill of Exceptions No. 5.

BILL OF EXCEPTIONS NO. 6

The objection in this bill was made when Laverne Brewer, relating what occurred after the shooting, made the statement that ■she told others “they killed Johnny, they killed Johnny.” Defendant urges that this is hearsay, not within the res gestae, and was elicited from the witness solely to inflame the jurors.

According to the record, this eyewitness was asked what happened immediately after the shooting; did she break away and what did she do. She answered:

I had to run to the corner and there were some guys at the corner and I started screaming to them, just telling—I said, they—they were asking me, what’s the matter, you know, and I—I said, ‘they killed Johnny, they killed Johnny.’

The trial court ruled that the answer was properly allowed as part of the res gestae. Res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before and after the commission of the crime but also includes testimony of witnesses and police officers pertaining to what they heard or observed before, during, or after the commission of the crime if the continuous chain of events is evident under the circumstances. La.R.S. 15:447 and 448. State v. Morgan, 296 So.2d 286 (La.1974); State v. Edwards, 287 So.2d 518 (La.1973); State v. Curry, 263 La. 997, 270 So.2d 484 (1972); State v. Sercovich, 246 La. 503, 165 So.2d 301 (1964).

The witness to the crime, Laverne Brewer, was relating what she said immediately after the shooting to the young boys who rescued her. We agree with the trial judge that this statement was properly admitted as part of the res gestae.

BILL OF EXCEPTIONS NO. 7

Defendant claims in this bill that the in-court identification of defendant by Laverne Brewer was “tainted” by the photographic identification of defendant by this witness one month prior to trial. It is argued that this is evidenced by the fact that Miss Brewer was unable to make a positive identification of defendant in the prior June lineup.

Defendant succeeded in having this photographic identification of defendant suppressed prior to trial. However, the ruling placed a limitation on the defense that, if he in any way referred to this photographic identification in his cross-examination of Miss Brewer, the state would then be allowed to pursue the fact that the witness positively identified the defendant when shown the photographs. Defendant complains that the limitation and restriction placed on him in the trial judge’s ruling effectively precluded him from showing that Miss Brewer’s in-court identification was “tainted” by the illegal photographic identification. We do not agree.

First, the photographic identification was suppressed at defendant’s request. In accordance therewith, the state was prohibited from offering any evidence with reference thereto. On the other hand, defendant was not restricted from going into the matter at trial if he so desired. However, if defendant saw fit to do so, the ruling reserved the right of the state to examine the witness on the issue. This reservation to the state in the order is nothing more than the law allows. La.R.S. 15:281 affords a party the right of redirect examination on subject matters gone into on cross-examination. Hence, the reservation of the right of the state to examine the witness concerning the photographic identification in the event defendant went into the matter on cross-examination was in conformity with La.R.S. 15:281. The restriction placed in the ruling did not deny defendant any of his constitutional rights. Rather, it accorded the state the right it had under law.

Under the facts of this case, particularly the length of time and the circumstances under which the witness and defendant were in the company of each other on the day of the crime, it is clear that the in-court identification had a source independent of any out-of-court identifications. State v. Selman, 300 So.2d 467 (La.1974); State v. Moseley, 284 So.2d 749 (La.1973); State v. Newman, 283 So.2d 756 (La.1973). The fact that the witness, Laverne Brewer, did not identify defendant at the June lineup is explained in her testimony, i.e., that when she observed defendant at the time of the crime, as well as in the photographic display conducted immediately thereafter, he had an “afro,” sideburns, goatee and mustache; however, in the lineup, she was unable to identify Batiste because his hair seemed shorter and she did not see his sideburns, goatee or mustache. In any event, her lack of identification at the June lineup is a matter which addresses itself to the weight of her testimony rather than its admissibility. State v. Pierre, 284 So.2d 886 (La.1973). Hence, this bill is without merit.

BILL OF EXCEPTIONS NO. 8

This bill was reserved to the sustaining by the trial court of the state’s objection to defense questioning of the state witness, Laverne Brewer, as being repetitious. Defense counsel was seeking to impeach this witness regarding her reason for not being able to identify defendant at the lineup. Miss Brewer was repeatedly questioned (three times) as to whether she saw a goatee on defendant during the pre-trial lineup. Each time she answered in the negative. La.R.S. 15:275 provides “[i]n the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross, and even though no objection be urged by counsel.” Finding no abuse of discretion here, we will not disturb the ruling of the trial judge. Hence, the bill is without merit.

BILL OF EXCEPTIONS NO. 9

This bill was taken to the ruling of the trial court’s sustaining a state objection to a question asked by defense counsel on recross-examination. The question concerned the friendship between the victim and the defendant. The objection was sustained for the reason that it was not covered on redirect examination. Defendant contends that this question was highly relevant to the probability of defendant committing the murder.

La.R.S. 15:281 provides:

The redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided that the opportunity be not denied to recross on the new matter brought out on the redirect.

The witness, Laverne Brewer, had been extensively cross-examined by defense counsel regarding her in-court identification. On redirect, the state asked a few limited questions involving her identification of defendant. The subject of friendship between the victim and defendant was not covered on redirect examination. Thus, the question asked by defense counsel was outside the scope of recross-examination. Also, in .our view, no prejudice resulted in the curtailment of this recross-examination. Hence, we find no abuse of the discretion vested in the trial judge by La.R.S. 15:281. State v. Corbin, 285 So.2d 234 (La.1973).

BILL OF EXCEPTIONS NO. 10

The barroom operator of the Ebony Lounge, James West, testified that the victim, Miss Brewer and defendant were seen by him in this bar on the night of the crime. He recognized defendant because he had been in his bar before that night. The witness was extensively examined in reference to the presence of these parties in the bar that night. During the examination, he was asked whether he had seen defendant leave with the victim and Miss Brewer, to which he answered: “No, I didn’t see them leave.” West was then asked if he recalled seeing defendant in the bar after the victim left, and he answered: “I wouldn’t notice it, no, but I couldn’t recall.” The next question propounded to him was: “Could it be a possibility he was still there?” The state objected on the ground that this called for an opinion on the part of the witness. The objection was sustained, and this bill was reserved. Thereafter, the witness reiterated that he did not see any of them leave.

The objected-to question clearly called for speculation on the part of West. Except as otherwise provided in the Code of Criminal Procedure, a witness can testify only as to facts within his knowledge; he may not testify as to any recital of facts heard by him, nor as to any impression or opinion that he may have. La.R.S. 15:463 (1966); State v. Kirklin, 283 So.2d 713 (La.1973). Hence, the ruling of the trial judge was correct, and this bill lacks merit.

BILL OF EXCEPTIONS NO. 11

When the trial judge denied a motion for a mistrial because of a prejudicial remark made by the prosecutor, this bill was reserved.

Following the testimony of one of the defense witnesses, the prosecutor made the remark, “she lied.” It was determined by the trial judge that the remark was not in fact heard by the jury. The remark was not loud enough to be recorded by the court reporter and is not contained in the trial transcript. The judge stated that he did not hear this remark and co-counsel (Achee) stated that, although he heard it, he did not think the jury heard the remark.

In any event, the prosecutor’s remark, “she lied” is not one of the listed types of remarks or comments which furnish a ground for a mistrial under article 770 of the Louisiana Code of Criminal Procedure. The listed types of remarks or comments under this article generally cannot be cured by an admonition to the jury unless requested by defendant. On the other hand, article 771 deals with comments or remarks made by, inter alia, the district attorney during trial, such as here, which are irrelevant or immaterial and are of such a nature that it might create prejudice against the defendant in the mind of the jury and are not within the scope of article 770. Generally, such remarks or comments may be cured by an admonition to the jury to disregard same. The comment in the present instance falls within this latter category. Although it was found by the trial judge that the jury did not hear the remark, upon request of defense counsel, the judge nevertheless admonished the jury. Hence, we find no prejudice resulted, and this bill is without merit.

BILL OF EXCEPTIONS NO. 12

This final bill was reserved to the trial court’s denial of defendant’s motion for a new trial. It is first urged that the verdict is contrary to the law and the evidence. Such an assertion presents nothing for our review. State v. Lisenby, 306 So.2d 692 (La.1975); State v. Gilbert, 286 So.2d 345 (La.1973).

Secondly, defendant re-urges the alleged Witherspoon violation (Bill of Exceptions No. 2) and the claim that the in-court identification by Miss Brewer was influenced by the prior illegal photographic identification (Bill of Exceptions No. 7). These alleged errors were disposed of previously under the respective bills of exceptions. As therein stated, we found no error. Hence, further consideration is unnecessary.

Finally, defendant for the first time in this motion for a new trial asserts error in regard to allegedly prejudicial remarks made by the district attorney in the course of his closing argument. The record does not reveal that any objection was made at the time of the occurrence of the alleged irregularity. Objections to remarks of the district attorney in closing argument must be made at that time and not after conviction in a motion for a new trial. La.Code Crim.P. art. 841 (1966); State v. Neal, 231 La. 1048, 93 So.2d 554 (1957). Likewise, the alleged irregularity is not discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La. Code Crim. P. art. 920(2) (1966). See State v. Refuge, 300 So.2d 489 (La.1974). Hence, this bill is without merit.

DECREE

For the reasons assigned, the conviction of the defendant is affirmed, but the death sentence imposed is annulled and set aside, and the case is remanded to the Twenty-Fourth Judicial District Court for the Parish of Jefferson with instructions to the trial judge to sentence the defendant to life imprisonment.

BARHAM, J., dissents particularly from the disposition of Bills of Exceptions 2, 7 and 8.

      . La.R.S. 14:30 was amended in 1973. La. Acts 1973, No. 109, § 1. However, this prosecution was based upon the statute prior to its amendment.

      . The state concedes that the death sentence imposed on April 24, 1972 should be annulled and set aside pursuant to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) and the case remanded to the trial court with instructions to the trial judge to sentence defendant to life imprisonment. State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).

      . The exact question propounded was: “Are you so predisposed that no matter what the evidence was, that you could not come back with a . verdict of death? In other words, no matter what the evidence would come from the witness stand you would not be able to listen to the evidence and then, after properly evaluating it . . could you come back with the death penalty?” The answer was: “No, sir.”

      . The basis for the suppression was the absence of counsel at the time of the display of these photographs. Later in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), the United States Supreme Court ruled “. . . that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender.”

      . The exact question asked was: “Just one question more. Is there anything in your mind to—Strike that. Johnny was very friendly with this fellow, Butch; is that correct?”

      . Article 841 was amended by Acts 1974, No. 297, § 1. The amended article likewise provides that irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. However, the requirement of an objection shall not apply to the court’s ruling on any written motion.

      . Amended by Acts 1974, No. 207, § 1; no significant change was made in this provision of the article.


text:
    Inez ROUSSEL, widow of Ference Luquette v. COLONIAL SUGARS COMPANY (a subsidiary of Borden, Inc.) and Insurance Company of North America.
    No. 56002.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Richard L. Edrington, Carville & Ed-rington, Laplace, for plaintiff-applicant.
    Ralph S. Johnson, Johnson & Riess, New Orleans, for defendants-respondents.
   MARCUS, Justice.

Plaintiff, Inez Roussel Luquette, filed this suit against Colonial Sugars Company and its workmen’s compensation insurer, Insurance Company of North America, seeking to recover death benefits under the Louisiana Workmen’s Compensation Act. The claim is based upon the death of plaintiff’s husband, Ference Luquette, from a myocardial infarction which occurred during the course and scope of his employment as a machinist with defendant Colonial Sugars Company.

The trial court rendered judgment in favor of plaintiff and against defendants, awarding her $1,000.00 for burial expenses and the sum of $49.00 per week from July 31, 1972 for a period not to exceed 500 weeks, together with legal interest on each past-due installment until paid, and for all costs. The court of appeal reversed. La.App., 306 So.2d 771. We granted certiora-ri to review the correctness of this judgment. For reasons hereinafter set forth, we reverse and reinstate the judgment of the trial court.

Ference Luquette, age 63, was an employee of Colonial Sugars Company for 47 years. As a machinist in defendant’s sugar refinery, Luquette and a fellow employee had been engaged in the dismantling of a pump weighing approximately 175 pounds for the three days prior to his death. On the morning of his death, July 31, 1972, decedent and his helper turned over half the pump (liquid end) which weighed about 75 pounds for the purpose of taking some measurements. Thereafter, decedent placed a steel shaft in a lathe, tightened it, and was making a bushing to be used on the pump. The shaft weighed about 2 or 3 pounds. At 2:00 p. m., decedent walked to a drill rack, a distance of some 20 feet from the lathe, where he collapsed and died of a fatal heart attack. Dr. Ward Turner, the plant physician who pronounced Luquette dead at 3:15 p. m., determined that death was instantaneous and was caused by a myocardial infarction with ventricular fibrillation. This condition is caused by arteriosclerosis, a process which develops over a period of years.

Dr. Turner was also decedent’s treating physician. He testified that he first treated decedent in 1960 for hypertension (abnormal elevation of blood pressure). Over a period of six months, this treatment resulted in decedent’s blood pressure being reduced within normal limits. Dr. Turner testified that a myocardial infarction could occur at any time and that he probably would not have approved a person in the deceased’s physical condition for employment as a machinist in a pre-employment examination. He stated that a myocardial infarction could be brought on by being involved in strenuous activity. He further testified that strenuous activity by a person in perfect health would not force him to go beyond his cardiac reserve. However, an individual with arteriosclerosis who exceeds his cardiac reserve by strenuous activity could precipitate a myocardial infarction.

The deposition of Dr. Melvyn F. Kos-sover was introduced into evidence. He stated that strenuous activity over a long period of time by a person in decedent’s condition could be dangerous. He further stated that the activity of decedent as a machinist could be detrimental to a person of decedent’s physical condition, as it would cause increased strain on the heart which could result in a myocardial infarction. Further, an increased stress in lifting a heavy object could also precipitate a myocardial infarction.

In order to recover death benefits under the Louisiana Workmen’s Compensation Act, plaintiff must establish that her husband received a personal injury by accident arising out of and in the course of his employment. La.R.S. 23:1031. It is not only conceded but clearly established that decedent suffered an “accident” and “injury” within the meaning of our workmen’s compensation law. La.R.S. 23:1021(1) and (7); Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969) (on rehearing).

The only remaining issue for determination is whether plaintiff proved by a preponderance of evidence that the fatal heart attack which occurred on the job was caused by decedent’s employment. Difficulty in proving causation arises from the fact that a pre-existing heart infirmity can produce disability at any moment irrespective of any outside influence. However, it is well settled that benefits are due in compensation cases involving heart conditions resulting in disability or death, whether or not the condition is pre-existing, when the accidental injury is caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Hence, it is of no significance that the heart attack could have occurred at another time and place if, in fact, the accidental injury occurred on the job. Further, it is not necessary that the accident resulting in disability or death be caused by extraordinary activities of the employee, or that said activities be the exclusive cause of the accidental injury. As previously stated, it is only necessary that the death or disability resulting from the accidental injury be caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. Ferguson v. HDE, Inc. and Bertrand v. Coal Operators Casualty Company, supra.

In the instant case, the record reveals that decedent was engaged in manual labor as a machinist in the refinery at the time of the fatal heart attack. He was performing the usual and customary duties of his employment. We have no hesitancy in concluding that these activities were strenuous in nature. There is no dispute that decedent did, in fact, have a history of hypertension and that he did suffer a myocardial infarction resulting in immediate death while performing the duties of his employment. It is established by the medical testimony that the myocardial infarction suffered by decedent on the job which resulted in his death could have been caused or precipitated by the usual and customary actions and exertions of decedent’s duties as a machinist. Causal connection was thus clearly established by a preponderance of evidence in this case.

This conclusion is in conformity with the finding of the trial court and contrary to the judgment of the court of appeal. Hence, we conclude that the court of appeal erred in reversing the judgment of the trial court. Besides, the factual conclusions of the trial court must be given great weight by a reviewing court. Canter v. Koehring, 283 So.2d 716 (La.1973).

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. The judgment of the district court is reinstated and made the judgment of this court. All costs are assessed against the defendants.

SUMMERS, J., dissents for the reasons assigned by the Court of Appeal. See La.App., 306 So.2d 771.

      . A myocardial infarction is caused by a blockage of one of the arteries to the muscle of the heart. The cause of this blockage may be varied. It is almost invariably caused by some arteriosclerotic changes.


author: DIXON and CALOGERO, JJ.

text:
    STATE of Louisiana v. Barbara Jean SHEPPARD.
    No. 56832.
    Supreme Court of Louisiana.
    Sept. 10, 1975.
   In re: Barbara Jean Sheppard applying for Writs of Certiorari, Prohibition and Mandamus and Stay Order.

Writ denied. There is no abuse of discretion in the ruling of the trial judge.

DIXON and CALOGERO, JJ.

are of the opinion that the ruling of the trial judge granting the continuance to the State was an abuse of discretion. The State cannot summons the defendant to testify; defendant’s counsel can waive defendant’s right to be present.


text:
    Richard P. (Dick) GUIDRY v. Charles William ROBERTS et al.
    No. 56830.
    Supreme Court of Louisiana.
    Sept. 10, 1975.
   In re: Joint application by Plaintiff and Defendants for Invocation of Supervisory and/or Original Jurisdiction applying for Invocation of its Plenary Powers Via Supervisory and/or Original Jurisdiction.

Application denied. Applicants have failed to show a compelling reason for this court to bypass the normal procedure in the courts below to resolve the issues presented.


text:
    PLACID OIL COMPANY v. Watson TAYLOR et al.
    No. 56597.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Mrs. Betty Beason applying for certiorari, or writ of review, to the court of appeal, Third Circuit, Parish of Natchi-toches. 313 So.2d 626.

Granted. Applicant is entitled to rear-gument in the court of appeal under the provision of Art. 5 § 8, Const. 1974. The Court of Appeal’s denial of rehearing (of June 18, 1975) is vacated, and the matter remanded to the Court of Appeal for rear-gument before a 5 judge panel.


text:
    Carlyn A. CASON et al. v. Wendell FORMBY et al. Carlyn A. CASON v. Wendell FORMBY et al.
    No. 56548.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Carlyn A. Cason, et al applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bossier. 317 So.2d 654.

Writ denied. On the facts found, the judgment of the court of appeal is correct.

BOLIN, J., takes no part.


text:
    Charles L. BRIGGS v. Louis SIGGIO and Mrs. Hazel Siggio.
    No. 56550.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Charles L. Briggs applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Calcasieu. 313 So.2d 379.

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


text:
    The JEFFERSON BANK AND TRUST COMPANY v. Daniel A. POST and Samuel A. Blaize, d/b/a Post and Blaize.
    No. 56553.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: The Jefferson Bank and Trust Company applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 312 So.2d 907.

Writ denied. The result is correct.

DIXON, J., dissents from denial.


text:
    Albert P. GASPARD v. Louis SIGGIO and Hazel Siggio.
    No. 56551.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Albert P. Gaspard applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Calcasieu. 313 So.2d 380.

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


text:
    STATE of Louisiana ex rel. Donald BRIGGS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56554.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Donald Briggs applying for Writs of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Writ denied. The same factual defenses to commission of the offense have been rejected when urged by a previous writ application, see 302 So.2d 623 (La.1974) and were apparently rejected by the jury at the trial on the merits, see 292 So.2d 238 (La.1974). See also denial of habeas corpus April 10, 1975, U.S.Dist.Ct., W.D., La., 74-1202.


text:
    Mrs. Geneva Beard, widow of Walter Y. LUCAS v. Miss Joyce E. LUDWIG et al.
    No. 56562.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Joyce E. Ludwig and Gerald Thomas LaBorde applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 313 So.2d 12.

Application denied. On the facts found by the court of appeal there is no error in its judgment.

MARCUS and CALOGERO, JJ., would vote to grant the writ.


text:
    LANGSTON’S FURNITURE AND APPLIANCE, INC. v. FRIGIDAIRE SALES CORPORATION.
    No. 56563.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Langston’s Furniture and Appliance, Inc. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 313 So.2d 273.

Writ denied. There is no error of law in the judgments below.


text:
    William F. GALLOWAY, Jr. v. TENNECO OIL COMPANY.
    No. 56566.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: William F. Galloway, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 313 So.2d 317.

Writ denied. On the facts found, we cannot say the result is incorrect.

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

CALOGERO, J., recused.


text:
    William F. GALLOWAY, Jr. v. TENNECO OIL COMPANY.
    No. 56578.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Tenneco Oil Co. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 313 So.2d 317.

Writ denied. On the facts found we cannot say the result is incorrect.

CALOGERO, J., recused.


text:
    Succession of Mary Virginia Taylor GILLENTINE.
    No. 56518.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Jane Taylor Farnsworth applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 313 So.2d 637.

Writ denied. There is no error in the judgment complained of.

MARCUS, J., recused.


author: DIXON, J.

text:
    STATE of Louisiana ex rel. Joe Nathan TUBBS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56555.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Joe Nathan Tubbs applying for Writs of Certiorari and Habeas Corpus.

Writ refused. No merit in the application. The 1969 sanity commission finding negates relator’s present complaint of incapacity.

DIXON, J.

is of the opinion the writ must be granted and a hearing ordered. Applicant has never had a hearing or a ruling on the issue now presented. The issue here is whether applicant’s mental illness when he pleaded guilty precluded a free, voluntary & informed plea. The issue is not the same as that in a plea of insanity (whether defendant understands the nature of the offense and can assist counsel). Prior court proceedings have determined his capacity under La. law to stand trial, but not his capacity, under Federal standards, to plead guilty.

CALOGERO, J., would grant this writ application.


text:
    Walter SMITH v. WESTSIDE TRANSIT LINES, INC. and Liberty Mutual Insurance Company.
    No. 56556.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Walter Smith applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 313 So.2d 371.

Writ denied. The judgment is not final.


text:
    STATE of Louisiana ex rel. Russell E. WYMAN and David Brown, Jr. v. Oliver P. SCHULINGKAMP, Judge, Criminal District Court, Parish of Orleans.
    No. 56559.
    Supreme Court of Louisiana.
    Sept. 11, 1975.
   In re: Russell E. Wyman and David Brown, Jr. applying for writ of mandamus and habeas corpus.

Writ denied. A return shows that the judge denied the writ because an appeal was pending.


text:
    Reuben Edwin DELOACH v. Frank E. MINYARD, M.D.
    No. 56858.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Reuben Edwin Deloach applying for Stay Order and Judgment and Review.

Writ refused. The court having been informed that the body has already been cremated, this matter is now moot.


text:
    Robert J. GUILLIOT et al. v. The CITY OF KENNER et al.
    No. 56569.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Robert J. Guilliot, et al, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 313 So.2d 866.

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


text:
    STATE of Louisiana ex rel. Dan E. ROBERTSON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Hon. Lemmie O. Hightower, Judge, 4th Judicial District Court.
    No. 56575.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Dan E. Robertson applying for Writ of Habeas Corpus and Mandamus.

Granted. Free transcript ordered. See State ex rel. Ross v. Farr, La., 297 So.2d 673 (1974).


text:
    STATE of Louisiana ex rel. Robert J. MILLER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56598.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Robert J. Miller applying for Remedial Writs.

Writ granted. It is ordered that trial court grant out of time appeal in No. 9926A returnable under date as may be fixed by him. It is further ordered that the writ and appeal be consolidated in this court.


text:
    Lloyd L. COOLEY v. J. W. SLOCUM, d/b/a J. W. Slocum Construction, et al.
    No. 56599.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Lloyd L. Cooley, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides, 313 So.2d 606.

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


text:
    STATE of Louisiana ex rel. Henry MARTIN v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56561.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Henry Martin applying for Writ of Habeas Corpus and Certiorari.

Writ denied. Based on evidentiary hearing of November 25, 1974, as ordered by 302 So.2d 304 (La.1974), we agree with the trial court’s conclusion that the applicant did not bear his burden of proving ineffectiveness of trial counsel. Cf. King v. Beto, 429 F.2d 221 (C.A. 5, 1970).


text:
    SOUTHERN PACIFIC TRANSPORTATION CO. v. PORT-O-CALL, INC.
    No. 56568.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Southern Pacific Transportation Co. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 314 So.2d 755.

Writ denied. The result is correct.

SANDERS, C. J., is of the opinion that a writ should be granted.

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


text:
    Alfred W. GROGHAN v. Paul BILLINGSLEY et ux.
    No. 56571.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Mr. and Mrs. Paul L. Billingsley applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Charles. 313 So.2d 255.

Writ denied. Under the peculiar facts of this case, we cannot say that the previous courts abused their discretion in the award of court costs.


text:
    STATE of Louisiana ex rel. Herbert DUNBAR v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56574.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Herbert Dunbar applying for writ of habeas corpus, certiorari, prohibition, mandamus.

Application denied. The allegations do not warrant the relief sought.


text:
    GARDEN HILL LAND CORPORATION v. SUCCESSION of Edwin CAMBRE et al.
    No. 56577.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Renette Maria Cambre applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist. 313So.2d 864.

Writ refused. No error of law.


text:
    Bernard BRYANT v. The TRAVELERS INSURANCE CO.
    No. 56579.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Bernard Bryant applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 314 So.2d 379.

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


author: DIXON, J.,

text:
    Joseph ROY, Individually and as Administrator of Jimmy Roy v. CONTINENTAL INSURANCE COMPANY et al.
    No. 56580.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Joseph Roy, Ind., and as Administrator of the Estate of His Minor Son, Jimmy Roy applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 313 So.2d 349.

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

DIXON, J.,

dissents from the denial, being of the opinion that corporal punishment of children by teachers, when not authorized by parents is illegal. See Johnson v. Horace Mann, etc., La.App., 241 So.2d 588.

CALOGERO, J., dissents from the denial being of the opinion that this court should speak on this res nova subject.


text:
    In re STATE ex rel. Guy WOOTAN, Custodian of Notarial Bonds.
    No. 56581.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Glenn L. Morgan applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 313 So.2d 621.

Writ denied. The result is correct.


author: TATE, J.,

text:
    James Randall MARTIN v. TRAVELERS INSURANCE COMPANY et al.
    No. 56582.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: The Travelers Ins. Co. and The Southland Corp. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Sabine. 313 So.2d 342.

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

TATE, J.,

dissents, being of the view that Thompson v. Warmack, 229 So.2d 352 (La.App. 3rd Cir. 1969) represented a preferable interpretation than that expressed by Louisiana Power and Light Co. v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970).

DIXON and CALOGERO, JJ„ dissent.


text:
    Marlene GLAZER v. LOUISIANA TRAILERS SALES, INC., et al.
    No. 56584.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Western World Insurance Co. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 313 So.2d 266.

Writ not considered. Not timely filed.


text:
    Ruby Lee BROOKS v. ACME CARTON CORP. and Aetna Casualty & Surety Co.
    No. 56583.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Acme Carton Corp. and Aetna Cas. & Surety Co. applying for certiorari or.writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 312. So.2d 924..

Writ denied. On the facts found by both lower courts there is no error in the judgments reviewed.


text:
    Alfred W. GROGHAN v. Paul BILLINGSLEY et ux.
    No. 56589.
    Supreme Court of Louisiana.
    Sept 12, 1975.
   In re: Alfred W. Groghan applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. Charles. 313 So.2d 255.

Writ denied. Under the facts found by the court of appeal, the result is correct.


text:
    James MILLER et al. v. Edward ALLEN et al.
    No. 56590.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Canadian Universal Insurance Co. applying for Remedial Writ.

Writ refused. The request for a jury trial was not timely. See LSA-C.C.P. art. 1732.


text:
    Alice St. Julien MANUEL v. Warren J. “Puggy” MOITY and Allstate Credit Plan, Inc.
    No. 56591.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Warren J. “Puggy” Moity, Sr. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Iberia. 313 So.2d 278.

Writ denied. There is no error of law in the judgment complained of.


text:
    Dollie Mae GLOVER v. Oscar and Dorothy POYDRAS, d/b/a Dorothy’s Steakhouse and Bar.
    No. 56595.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Dorothy Poydras applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 314 So.2d 417.

Writ denied. No error of law, under facts found.


text:
    GREEN THUMB, INC. v. DLJ OF LOUISIANA # 1.
    No. 56600.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: DLJ of Louisiana # 1 applying for certiorari or writ .of ¡review to the Court of Appeal, Third Circuit, Parish of Lafayette. 313 So.2d 284.

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


text:
    COLE, INC. and Coleman Schwartz d/b/a the Regency Room v. The COUNCIL OF the CITY OF NEW ORLEANS and the City of New Orleans.
    No. 56601.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Cole, Inc. and Coleman Schwartz applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

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


text:
    STATE of Louisiana ex rel. Bennie J. HUDGENS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Honorable Judge Hughes, 28th Judicial District Court.
    No. 56616.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Bennie J. Hudgens applying for Remedial Writs of Mandamus, Prohibition and Habeas Corpus.

Application denied as moot. Information from 28th Judicial District Court house is that applicant was mailed a copy of transcript requested on July 30, 1975.


text:
    Dr. E. E. PULS et al. v. P. A. ROTH et al.
    No. 56798.
    Supreme Court of Louisiana.
    Sept. 12, 1975.
   In re: Dr. E. E. Puls, et al. applying for writ of review.

Writ denied. The result is correct.


text:
    Charles HUDSON v. JACKSON PARISH BANK.
    No. 56863.
    Supreme Court of Louisiana.
    Sept. 16, 1975.
   In re: Jackson Parish Bank applying for Supervisory Writs.

Writ denied. This court will not interfere with the orderly procedures in the lower courts in the absence of palpable error and irreparable injury, neither of which is shown here.

BOLIN, J., takes no part.


text:
    STATE of Louisiana v. Willie ALEXANDER, Jr.
    No. 56626.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: State of Louisiana through the District Attorney, Harry F. Connick, applying for Writs of Certiorari, Mandamus and Prohibition. ,

Writ granted. (See Order.)

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Alvin V. Oser, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 10th day of October, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 12th day of December, 1975, 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. Perry JOHNSON.
    No. 56341.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Perry Johnson applying for remedial writs.

Application denied. There is no merit in the specification of error.


text:
    STATE of Louisiana ex rel. Anthony E. SCHAFFER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56493.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Anthony E. Schaffer applying for Writ of Habeas Corpus.

Application denied. There is no error in the trial court’s judgment on the evidentiary hearing; the transcript of the plea of guilty shows that it was free, voluntary and informed.


text:
    Rudy J. PORTER et al. v. The TRAVELERS INDEMNITY COMPANY and Interstate Fire & Casualty Company.
    No. 56603.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Travelers Indemnity Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 313 So.2d 641.

Application denied. The judgment is not final, the court of appeal having only determined that there is a material issue of fact.


text:
    VANGRAFF, INC. v. Madge S. McCEARLEY.
    No. 56570.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Vangraff, Inc. applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 483.

Writ denied. No error of law.


text:
    Dr. James W. LORIO v. SAFECO INS. COMPANY OF AMERICA et al.
    No. 56608.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Dr. James W. Lorio applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 316 So.2d 744.

Writ denied. No error of law.


text:
    Bessie Jones, wife of/and Wilbert VAUGHN v. Robert EARTHY et al.
    No. 56610.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Bessie Jones, wife of/and Wilbert Vaughn applying for certiorari or writ of review, to the Court of Appeal, Third Circuit, Parish of Grant. 313 So.2d 347.

Application denied. There is no error in the findings and conclusions of the court of appeal.


text:
    SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION v. Maxie DUHON and Clifford Broussard.
    No. 56611.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Southwest Louisiana Electric Membership/Corporation applying for certiorari or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 313 So.2d 366.

Writ denied. No error of law.


text:
    John B. BAQUE v. PAN AMERICAN LIFE INSURANCE COMPANY.
    No. 56612.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Pan American Life Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 313 So.2d 293.

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


text:
    Robert H. CARR et ux. v. PARISH OF EAST BATON ROUGE.
    No. 56614.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Parish of East Baton Rouge applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 527.

Writ denied. There is no error of law in the judgment complained of.


text:
    STATE of Louisiana ex rel. Sherry ADKINS v. J. D. MIDDLEBROOK, Supt. Louisiana Institute for Women.
    No. 56617.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Sherry Adkins applying, for Remedial Writs of Certiorari, Mandamus, Prohibition and Habeas Corpus.

Writ denied. Based on the thorough examination by the trial court at the time the plea of guilty was taken on October 14, 1974, we find no merit to the applicant’s allegations that her plea was not voluntary and intelligent.

DIXON, J.,

dissents from the refusal. There has been no hearing on this application by any court; there has been no judicial determination of the truth of the applicant’s allegations. If they are true, she is entitled to relief.

CALOGERO, J., dissents.


text:
    STATE of Louisiana ex rel. Sammie ROBINSON v. C. Murray HENDERSON, Warden Louisiana State Penitentiary, et al.
    No. 56618.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Sammie Robinson applying for writ of habeas corpus.

Application denied. The petition itself shows the applicant is not entitled to the relief sought.


text:
    Mrs. Howard C. BERGERON et al. v. Melvin THOMAS et al.
    No. 56629.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Mrs. Howard C. Bergeron, Donald Ray Bergeron, Jerry W. Bergeron and Gilbert Lee Bergeron applying for certio-rari or writ of review to the Court of Appeal, First Circuit, Parish of Terrebonne. 314 So.2d 418.

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


text:
    STATE of Louisiana ex rel. Charlene GETTRIDGE v. Hon. Frank SHEA, Section “G” Parish of Orleans, and J. D. Middlebrook, Supt., La. Correctional Institute for Women.
    No. 56746.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Charlene Gettridge applying for Remedial Writs of Mandamus, Prohibition and Habeas Corpus.

Writ denied. The application is premature.

DIXON, J.,

concurs in the denial. The trial judge informs this court that the hearing on the application was continued until October 1, 1975 on motion of defense.


text:
    Dr. James W. LORIO v. SAFECO INSURANCE COMPANY OF AMERICA et al.
    No. 56640.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Michael Y. Norwood applying for certiorari or writ .of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 316 So.2d 744.

Writ denied. Since the matter was remanded for trial upon reversal of summary judgment, rehearing denied August 26th, the judgment is not final. This court does not ordinarily review rulings interlocutory in nature that there is a material issue of fact.


text:
    Audrey M. EIERMANN v. Sylvia R. ROY et al.
    No. 56630.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Audrey M. Eiermann applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ denied. On the response filed by the trial court judge, there is no error of law in the judgment complained of.


text:
    Dr. James W. LORIO v. SAFECO INS. CO. OF AMERICA et al.
    No. 56871.
    Supreme Court of Louisiana.
    Sept. 17, 1975.
   In re: Michael Y. Norwood applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 316 So.2d 744.

Writ Denied. See reasons for denial in Lorio v. Safeco, La., 318 So.2d 52.


text:
    L. B. PONDER, III, Curator v. Estelle S. STIRE, Clerk of Court, et al. L. B. PONDER, III, Curator v. F. F. WILLOZ, III, et al.
    No. 56883.
    Supreme Court of Louisiana.
    Sept. 18, 1975.
   In re: Ferdnand F. Willoz, III and Robert L. Carnuth applying for Writs of Certiorari and Review.

Writ denied. There is no final judgment. This Court will not interfere with the orderly proceeding in the trial court in the absence of palpable error in the ruling, a clear showing of irreparable injury or great harm to the applicant. Applicants have a remedy by appeal in the event of an adverse judgment. 303 So.2d 550.


text:
    BECKER AND ASSOCIATES, INC. v. LOU-ARK EQUIPMENT RENTALS CO., INC. LOU-ARK EQUIPMENT RENTALS CO., INC. v. BECKER AND ASSOCIATES, INC.
    No. 56623.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Lou-Ark Equipment Rentals Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 314 So.2d 553.

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. Clyde DEAN v. HERCULES, INCORPORATED.
    No. 56644.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Hercules, Incorporated, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Iberville, 314 So.2d 430.

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, Through the DEPARTMENT OF HIGHWAYS v. Cecil R. TYLER et al.
    No. 56649.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Cecil R. Tyler, William R. Copeland and Joseph L. Mallett, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston, 314 So.2d 495.

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:
    Lillie COLEMAN and Andrew Bean v. Edwina VICTOR.
    No. 56651.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Lillie Coleman and Andrew Bean, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 314 So.2d 412.

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


text:
    STATE of Louisiana ex rel. Deotis FRANKLIN v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56652.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
    Writ Granted Nov. 11, 1975.
   In re: Deotis Franklin applying for Writ of Certiorari and Habeas-Corpus.

Granted. Evidentiary hearing ordered on whether indigent defendant intelligently waived his right to appeal, including whether he was informed of it by appointed counsel.


text:
    Mrs. Frank CLARK v. I. H. RUBENSTEIN, INC.
    No. 56665.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Mrs. Frank Clark, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 314 So.2d 489.

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:
    CITY OF BATON ROUGE v. Wilford MITCHELL.
    No. 56666.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: City of Baton Rouge applying for Remedial Writs for Interpretation of LRS 32:661 (A).

Granted. (See Order.)

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

It is ordered that a writ of certiorari issue herein, directing the Honorable William Hawk Daniels, Judge of the City Court of Baton Rouge, for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 10th day of October, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 12th day of December, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Joseph Eldon BAMBURG and Donna M. Bamburg v. Ada Y. NELSON et al.
    No. 56642.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Joseph Eldon Bamburg and Donna M. Bamburg applying for certiorari or writ of review to the Court of Appeal, Second Circuit, Parish of Red River. 313 So.2d 872.

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

BOLIN, J., takes no part.


text:
    STATE of Louisiana v. Jimmy W. MORRIS.
    No. 56880.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Jimmy W. Morris applying for certiorari, prohibition, mandamus and stay order.

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


text:
    STATE of Louisiana v. Gerald E. WHITE.
    No. 56645.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: State of Louisiana applying for Application for Appeal to Reverse Ruling of Hon. Frank A. Marullo, Jr.

Writ denied. The State’s remedy is by appeal. La.Code Crim.Proc. art. 912; moreover, the application does not comply with the requirements for appeal.

DIXON, J.,

concurs in denial, although of opinion the trial court was in error; considering this application as an appeal, it was not taken timely.


text:
    Kenneth NETTERVILLE, Individually, etc., et al. v. PARISH OF EAST BATON ROUGE.
    No. 56647.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Parish of East Baton Rouge applying for writ of review, to the Court of Appeal First Circuit, Parish of East Baton Rouge. 314 So.2d 397.

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


text:
    Gary L. SMILEY v. Hickley M. WAGUESPACK, Sr., Director, Dept. of Public Safety and Commissioner of Motor Vehicle.
    No. 56648.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Hickley M. Waguespack, Sr., Director of Department of Public Safety and’Commissioner of Motor Vehicle applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 492.

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


text:
    STATE of Louisiana ex rel. Bobby HARRIS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56653.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Bobby Harris applying for Writs of Certiorari, Mandamus, Review and Prohibition and Habeas Corpus.

Writ Denied: No double jeopardy. The attempted murder and attempted rape were independent crimes, as charged. Cf. State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974).


text:
    STATE of Louisiana ex rel. Herbert Joseph DELL v. C. Murray HENDERSON, Warden Louisiana State Penitentiary.
    No. 56654.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Herbert Joseph Dell applying for writ of habeas corpus, certiorari, prohibition and mandamus.

Application denied. The transcript of the trial in this court because of an earlier appeal, shows applicant was represented by competent and diligent counsel.


text:
    STATE of Louisiana ex rel. Willie J. BANKS v. C. Murray HENDERSON, Warden Louisiana State Penitentiary.
    No. 56655.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Willie J. Banks applying for writ of habeas corpus.

Writ denied. Allegations of incompetency of counsel are unsubstantiated in view of examination of trial record. See State v. Banks, La., 292 So.2d 211. Other allegations are either insufficient to require an evidentiary hearing or contradicted by the record.


text:
    Winston HICKMAN et al. v. The PARISH OF EAST BATON ROUGE et al.
    No. 56659.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: Winston Hickman, et al applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 314 So.2d 486.

Writ denied. On the facts alleged there is no error of law in the judgment complained of.

TATE, J.,

dissents. The children’s effectual loss of their mother should be compensable under C.C. Art. 2315 no less than if she had died.

BOLIN, J., dissents.


text:
    STATE of Louisiana, Through the DEPT. OF HIGHWAYS v. UNITED PENTECOSTAL CHURCH OF HODGE, Louisiana.
    No. 56662.
    Supreme Court of Louisiana.
    Sept. 19, 1975.
   In re: United Pentecostal Church of Hodge, La. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 313 So.2d 886.

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

BOLIN, J., takes no part.


text:
    STATE of Louisiana v. Alfred SEWELL, III.
    No. 56896.
    Supreme Court of Louisiana.
    Sept. 23, 1975.
   In re: Alfred Sewell, III applying for Writs of Certiorari, (Review), Mandamus and Prohibition.

Writ denied. In view of the limited showing, we find no abuse in the discretion of the trial judge.


author: HOOD, Judge.

text:
    Warren MYERS, Plaintiff-Appellee, v. J. B. TALLY, INC., et al., Defendants-Appellants.
    No. 5107.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Lewis & Lewis by John M. Shaw, Ope-lousas, for defendants-appellants.
    Guillory, McGee & Mayeux, Frank McGee, Eunice, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

This is a workmen’s compensation suit instituted by Warren Myers against J. B. Tally, Inc., and its insurer, Employers Commercial Union Insurance Company. Judgment was rendered by the trial court in favor of plaintiff, and defendants have appealed.

The sole issue presented is whether plaintiff has been disabled since the date on which the payment of workmen’s compensation benefits was discontinued.

Plaintiff sustained a neck injury on November 27, 1972, while working as a bulldozer operator for defendant, J. B. Tally, Inc. The bulldozer hit an obstruction as it was being operated over a pile of dirt, causing Myers to be thrown forward in the machine. He contends that he has experienced severe pain in his neck and right arm since that time, and that that pain and the occasional loss of strength in the arm have disabled him from performing manual labor.

Myers was treated by Dr. Joseph Gerard Patton, a general surgeon, from December 1, 1972, until November 26, 1974. The treatment administered included the prescription of muscle relaxants and analgesics, heat therapy and the use of a neck collar. Dr. Patton discharged plaintiff as being able to perform manual labor on March 13, 1973, but Myers returned for more treatment shortly thereafter because of a recurrence of his neck pains. He did not respond to the treatment administered after this recurrence, so Dr. Patton, suspecting that he might have a cervical disc problem, referred him to Dr. J. Frazier Gaar, an orthopaedic surgeon, on April 26, 1973. Plaintiff was treated by both of those physicians for several months thereafter.

Dr. Gaar began treating plaintiff on April 30, 1973. He at first administered conservative treatment, as Dr. Patton had done, but plaintiff’s condition did not improve, so on July 20 a cervical myelogram was performed. The. myelogram showed a “definite constant filling defect at the C-S, C-6 level on the right, compatible with a degenerative disc of the cervical spine in C-S, C-6 region on the right.”

To remedy that defect, surgery was performed by Dr. Gaar, assisted by Dr. Patton and another doctor, on August 23, 1973. The surgery consisted of an anterior cervical diskectomy, with the removal of the above cervical disc and replacing it with a bone graft from the right iliac crest region to make the cervical segments of C-5 and C-6 solid. Dr. Gaar continued to care for plaintiff until April 29, 1974, when he discharged Myers as being able to return to his former type of employment, although he advised him to resume work “slowly and progressively.” Dr. Gaar estimated that plaintiff had “approximately a ten (10%) percent whole body permanent physical impairment and loss of physical function as a result of the cervical disease and operation procedure,” but he felt that that impairment would not disable him from performing heavy manual labor.

After being discharged by Dr. Gaar, plaintiff obtained employment operating motor patrols, which was less strenuous than the type work he had previously performed, but he discontinued that work about two weeks later because of pain and stiffness in his neck. Dr. Gaar examined plaintiff again on May 27, Í974, but concluded that he had not had a recurrence of his neck problem, nor had he damaged any of his surgery. He testified that he still felt that plaintiff was able to return to his former employment as a heavy equipment operator, but he qualified that opinion by stating that:

“. . . Now it depends on what heavy equipment he’s driving. If he’s driving something that’s bouncing him and bumping him around all day long, maybe he may have difficulty . . .”

Although plaintiff was discharged by Dr. Gaar, he remained under the treatment of Dr. Patton for several months thereafter. Dr. Patton saw plaintiff last on November 26, 1974, at which time he recommended that Myers continue to use pain relieving medication, muscle relaxants and heat for his neck. He described plaintiff’s neck muscles as being spastic, stiff and painful. He testified that in his opinion plaintiff was not able to return to work as a heavy equipment operator, such as driving a bulldozer, on the last mentioned date.

Both of the treating physicians found that plaintiff developed a “compression of the nerve in his hand” or an “ulnar nerve palsy,” after the operation was performed. Dr. Gaar did not relate that condition to the accident, while Dr. Patton felt that there could be such a relationship. Neither doctor found that the condition of plaintiff’s hand, in itself, was disabling.

The evidence shows that the operation of a bulldozer constitutes heavy manual labor, requiring the use of the operator’s body, arms, legs and feet. A bulldozer operator testified that the “machine jumps up and down all the time,” and that it gives the operator a “rough ride.” Plaintiff described his job as being “jarring work” and “rough work,” requiring the operator to “move your head around, look on both sides, up and down, constantly all day, you have to do that, all day.”

Plaintiff has been paid workmen’s compensation benefits, at the rate of $49i00 per week for a period of 100 weeks. He also has been paid medical expenses amounting to $5,666.24.

The trial judge concluded that plaintiff is totally, disabled from doing substantially the same type of work he did at the time of the accident. He accordingly rendered judgment awarding plaintiff compensation benefits for total and permanent disability, allowing him credit for amounts previously paid.

Defendants contend that the trial judge erred in failing to give more weight to the opinion expressed by Dr. Gaar, an orthopaedist, than that expressed by Dr. Patton, a general surgeon. See Faircloth v. Speights, 106 So.2d 522 (La.App. 2 Cir.1958); Shuff v. Liberty Mutual Insurance Company, 134 So.2d 707 (La.App. 3 Cir.1961).

We are aware of the rule which was applied in the' cited cases. In the instant suit, however, the orthopaedic specialist qualified his opinion to some extent by conceding that plaintiff may experience disabling pain when he attempts . to > perform the kind of work he was doing when the injury was sustained. In addition to the part of his testimony which already hás been quoted, Dr. Gaar also stated:

“I think it’s possible that he may have episodes of pain periodically. .1 don’t feel that they would be significant or moderate. I do feel that he possibly will experience some mild pain off and on in the neck: region. However, I don’t think that this would disable him to the point where he could not partake in driving heavy equipment. However, I could be wrong, and he may have a lot of pain. This is something I can’t measure. I know that he had a good result with the surgery, and everything looked well. He should be able to resume his activities. If he was ’bothered with this, then he would probably have to refrain from the things that give him discomfort.”

Considering Dr. Gaar’s uncertainty as to the amount of ’ pain which plaintiff “possibly will experience,” we do not find a great difference between the opinions expressed by the two treating physicians. The differences in their views appears to be based largely on the amount of pain which each feels will be suffered by plaintiff as a result of the accident. Dr. Gaar stated that Myers may have difficulty “if he’s driving something that’s bouncing him around all day long.” The evidence shows that the operation of a bulldozer does that. Dr. Patton conceivably had a better understanding of the nature of the work which had been performed by plaintiff.

We are unable to say that the trial judge erred in holding that plaintiff has been totally disabled since the payment of compensation benefits was discontinued, and in awarding plaintiff compensation benefits based on total and permanent disability.

There is no merit to defendants’ additional argument that plaintiff is entitled, at most, to compensation benefits based on the permanent partial loss of the use of the body as a whole, under LSA-R.S. 23:1221. We have found that plaintiff is still totally disabled, and that he is entitled to continue to'-receive compensation benefits at the maximum rate. Since plaintiff is totally disabled, he is entitled to benefits based on total and permanent disability, instead of the lesser amount which otherwise might be due under LSA-R.S. 23:1221.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendants-appellants.

Affirmed.


author: MILLER, Judge.

text:
    Joseph L. LEWIS, Plaintiff-Appellant, v. SOUTHWEST FOOD SUPPLIERS, INC., et al., Defendants-Appellees.
    No. 5105.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Caliste Beard, Jr., of Mouton & Beard, and Ashton J. Landry, Lafayette, for plaintiff-appellant.
    Roy & Forrest by Leon E. Roy, Jr., New Iberia, for defendant-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MILLER, Judge.

Plaintiff Joseph L. Lewis appeals the judgment rejecting his workmen’s compensation claim against his employer defendant Southwest Food Suppliers, Inc. The trial court’s judgment was based on plaintiff’s failure to prove disability beyond March 4, 1974, when compensation benefits were terminated. We affirm.

In detailed written reasons, the trial court reviewed plaintiff’s contentions, summarized the evidence, stated and followed the applicable law.

Alternatively, plaintiff sought a remand so that he might introduce new evidence. When the case was tried, plaintiff had not seen a physician for several months. Plaintiff did not call two of the five physicians who examined him. His most favorable evidence was from one physician who testified he offered plaintiff a myelogram test but found no clinical basis for plaintiff’s complaints.

In written reasons the trial judge noted plaintiff’s most favorable medical testimony by the physician who testified that if plaintiff’s unaccounted for complaints continued, he would recommend a myelogram to rule out the possibility of disc injury. Another physician testified plaintiff should not be subjected to a myelogram. The trial judge mentioned plaintiff’s failure to take the myelogram. While the case was pending on appeal, plaintiff submitted to myelogram and discogram tests, both of which were negative. Plaintiff filed a supplemental motion to remand for new evidence on this issue. He alleges his physician stated that he had four to six weeks disability following the recent tests.

Since there is no medical evidence to support plaintiffs claim that his job related disability extended beyond March 4, 1974, we find no basis to reverse the trial judge’s determination or to remand for another trial.

Robinson v. Fidelity & Casualty Co. of New York, 181 So.2d 318 (La.App. 3 Cir.1965) is distinguished. There plaintiff requested a myelogram before trial. Here plaintiff made no effort to obtain a myelo-gram prior to the trial court’s judgment.

The judgment is affirmed at appellant’s costs.

Affirmed.


author: YELVERTON, Judge.

text:
    Jimmy A. SCOTT v. Ronald J. SYLVESTER.
    No. 10242.
    Court of Appeal of Louisiana, First Circuit.
    May 19, 1975.
    Rehearing Denied July 8, 1975.
    Writ Refused Sept. 26, 1975.
    James A. Wood, Baton Rouge, for appellant.
    Mary Olive Pierson, Baton Rouge, for appellee.
    Before LANDRY, BLANCHE and YELVERTON, JJ.
   YELVERTON, Judge.

This is a suit based on defamation. On appeal, plaintiff complains that the award of damages is inadequate. The defendant did not appeal the finding that he was guilty of a tortious defamation. The trial judge allowed damages of $1. We regard that award as the trial court’s way of expressing its opinion that plaintiff was not entitled to any damages at all. While we agree with the trial court that damages should be held to the very minimum, we do not equate nominal damages with no damages at all. Accordingly, we amend the judgment herein by awarding plaintiff $250.

Plaintiff prayed for damages for mental anguish and embarrassment. A review of the facts is necessary in order to place an evaluation on the case.

The story has three main participants, the boyfriend, the wife and the husband. The boyfriend (Scott) is the plaintiff and the husband (Sylvester) is the defendant. The relationship with Scott started as a normal friendship but as it developed into closer ties between the wife and the boyfriend, domestic trouble developed between the wife and her husband. A concomitant animosity emerged between Scott and Sylvester which grew in its intensity in like proportions that the amor developed between Scott and Mrs. Sylvester.

One day Scott happened to be passing the Sylvester house when he decided to stop and park on the edge of the highway and put the house under surveillance. While he was thus observing, a dispute began on the front porch between Sylvester and his wife. Scott reacted violently: he slammed his car in reverse, backed up to the Sylvester driveway (striking a passing vehicle as he did so), and sped up the driveway to the Sylvester house. He jumped from his car and raced toward the porch. Sylvester, seeing the much larger man approach, retreated into the house. Scott kicked the door in and then proceeded to give Sylvester a severe beating. Sylvester was able to escape long enough to get a shotgun which he used to make Scott leave.

Sylvester was hospitalized as a result of that beating. While he was in the hospital he discussed his problem with his personal physician, Dr. Frank G. Rieger, Jr., who was also a deputy coroner from East Baton Rouge Parish. Sylvester was very concerned about his safety. Scott had threatened and harassed him before the beating and continued the threats and harassment afterwards. Sylvester was frightened and willing to admit it. This was confirmed by both his father and his physician. It was from Dr. Rieger that Sylvester learned the availability of a commitment procedure for persons mentally ill and dangerous. On June S, 1973, accompanied by his father, he went to the coroner’s office. There he discussed the matter with the parish coroner, Dr. Hypolite Landry. He then took action based upon LSA-R.S. 28:52. This statute pertains to the coroner’s authority to order for examination and/or confinement for treatment any person believed to be suffering from a mental illness which causes that person to be dangerous to himself or others. Pursuant to this statute, Sylvester made a written statement under oath in the presence of the coroner to the effect that Scott was in fact suffering from a mental illness which caused him to be dangerous to himself or others and that he should be interdicted and conveyed to an appropriate institution for treatment.

The coroner thereupon gave oral orders to have Scott brought to his office for examination. On June 11, the date that Scott learned of the coroner’s desire to see him, he went to his attorney’s office, picked up his attorney, and together they went to see the coroner. Both the coroner and Dr. Rieger, the deputy coroner and also defendant’s personal physician, were present during the interview with Scott. Both Drs. Landry and Rieger testified that after the briefest of interviews, lasting not more than 20 minutes, it was apparent that Scott was not suffering from any mental illness and he was immediately released.

It was because of the execution and filing of this affidavit and the resulting interview with the coroner and his assistant, that plaintiff alleges gave him mental anguish and embarrassment.

The following comments by the trial judge are appropriate at this point and are quoted as follows:

“This court, having heard the testimony, was convinced that Sylvester had justifiable concern over his safety as even prior to the encounter at his home, he had been harassed, intimidated and beaten by Scott. The coroner and deputy coroner, when they accepted Sylvester’s affidavit, felt that he had justifiable concern for his physical safety as he had been severely beaten in his own home by Scott. When the physician learned Scott’s version and ascertained that an involved, personal triangle was the cause of the problem between Scott and Sylvester they immediately released Scott. Technically, there was no legal or medical justification for Sylvester to sign the affidavit, and in doing so, he subjected himself to whatever damages resulted to Scott from-his actions.
“Plaintiff seeks damages for embarassment and mental anguish. The facts indicate that Scott was inconvenienced for not more than half an hour or so as a result of his incident. Any publicity attendant to same has been generated by him. He has suffered absolutely no financial loss. On the contrary, his business has improved rapidly over the last year even with the people to whom he has related the incident. Additionally, he had just received a substantial loan from the bank. The court feels that only nominal damages mitigated by the facts surrounding plaintiff’s execution of the affidavit, should be awarded.”

To compensate plaintiff here is not easy, for the history of the case does not evoke sympathy for him and it is tempting to let the history of the relationship between the parties color the award of damages. But defendant was guilty of tortious conduct. Plaintiff was damaged. He should be compensated. We are permitted to consider the history of events only to the extent that it may help to illuminate the measure of his mental anguish and embarrassment.

Plaintiff-appellant’s prayer for damages was limited to mental anguish and embarrassment. While we agree with the trial court that damages herein ought to be minimal, we cannot agree that no damages at all should be' awarded. There was no sound basis for Sylvester’s affidavit that Scott should be interdicted and institutionalized for treatment for a mental illness. News that the coroner had ordered his presence in his office for the purpose of a mental examination was bound to have been upsetting. Scott was obviously a man not easily intimidated, but we believe that this intimidated him. However, his fears and his embarrassment were of short duration. He had the presence of mind to pick up his attorney enroute to the coroner’s office. His attorney, who had known Scott for a long time and was acquainted with the circumstances and all of the litigation pending between the Sylvesters and other members of their family, must have been able to assuage Scott’s apprehensions. We doubt, therefore, that Scott was very disturbed by the time he reached the coroner’s office.

In assessing an award herein where the trial court gave none, we are mindful of the teachings of Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974) in which the Supreme Court made clear the proper limitations on appellate review of damages. However, we are not here tampering with the discretion of the trial judge in his award for damages. Although on the surface it appears that we are increasing an award from $1 to $250, we do not consider it so. We consider ourselves granting an award where the trial judge granted none. Plaintiff is entitled to a nominal award of $250. We accordingly amend the trial judge’s award from $1 to $250, and as amended, affirm, all at defendant’s costs.

Amended, and as amended, affirmed.