text:
    Joseph Lee LAVERGNE v. The WESTERN COMPANY OF NORTH AMERICA, INC., Highlands Insurance Company, Zigler Shipyard, Inc., and the Fidelity & Casualty Company of New York.
    No. 63646.
    Supreme Court of Louisiana.
    May 21, 1979.

      S. Michael Cashio, Kenner, for plaintiff-applicant.
    David W. Robinson, George K. Anding, Jr., Watson, Blanche, Wilson & Posner, Baton Rouge, for defendants-respondents.
   MARCUS, Justice.

Joseph Lee Lavergne instituted this action on November 27, 1973, to recover damages for personal injuries. Named defendants were The Western Company of North America, Highlands Insurance Company (liability insurer of Western), Zigler Shipyards, Inc., and The Fidelity and Casualty Company of New York (liability insurer of Zigler).

In his original petition, plaintiff alleged that on September 29,1971, while employed as an equipment operator on a barge owned and operated by Western, he fell to the deck injuring his back and spine while descending a steep set of irregular steps. Plaintiff sought recovery against Western, his employer, alleging various acts of negligence under the Jones Act (46 U.S.C. § 688); in addition, he sought “maintenance and cure” under the general maritime law from Western. Plaintiff further averred that his fall and resulting injuries were caused by Zigler’s defective and negligent design and construction of the steps and its failure to warn him of the hazard and un-seaworthy condition caused by the steps. Plaintiff also requested a trial by jury.

Defendants’ answers generally denied the allegations of plaintiff’s petition. Prior to trial, plaintiff settled his Jones Act and maintenance and cure claims against Western ,and its liability insurer, Highlands, and released them from all of his claims arising out of the accident. Plaintiff reserved his rights against Zigler and Fidelity and proceeded with his claim against them.

Thereafter, Zigler and Fidelity filed, inter alia, exceptions of prescription (based upon one-year prescriptive period provided by La. Civil Code art. 3536) and vagueness. The district court maintained the exception of prescription and dismissed plaintiff’s suit as to Zigler and Fidelity. On appeal, the court of appeal reversed, holding that, because plaintiff’s claim was grounded in admiralty, the doctrine of laches applied permitting plaintiff to maintain his suit against defendants even though it was filed after the passage of the Louisiana one-year prescriptive period. The court sustained defendants’ exception of vagueness and remanded the case to the district court for further proceedings. On remand, plaintiff amended his petition to more adequately state the factual basis for his assertion that the steps were designed and/or constructed by Zigler in a negligent manner. Thereafter, Zigler and Fidelity filed a motion to strike plaintiff's demand for a jury trial, grounded upon the contention that the general maritime law precluded a trial by jury of plaintiff’s action.

The district court granted defendants’ motion to strike and ordered plaintiff’s demand for a jury trial stricken. The court of appeal affirmed. On plaintiff’s application, we granted certiorari to review the correctness of this decision.

The sole issue presented for our resolution is whether a plaintiff who brings an in personam action in our state courts based upon the general maritime law has a right to a trial by jury.

The United States constitution provides that the judicial power of the United States extends to “all Cases of admiralty and maritime Jurisdiction.” U.S.Const. art. Ill, § 2. This constitutional grant of federal jurisdiction is codified in 28 U.S.C. § 1333 which provides in pertinent part:

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

In general, the exclusive admiralty jurisdiction of federal courts afforded by section 1333 has been limited to those maritime causes of action begun and carried on as proceedings in rem, that is, where a vessel or thing is itself treated as the offender and made the defendant by name or description in order to enforce a lien. Madruga v. Superior Court, 346 U.S. 556, 74 S.Ct. 298, 98 L.Ed. 290 (1954). However, it is well settled that, pursuant to the “saving to suitors” clause of section 1333, a suitor who holds an in personam claim (i. e., where defendant is a person, not a ship or other instrument of navigation), which might be enforced by suit in personam under the admiralty jurisdiction of the federal courts, may also bring suit, at his election, in the “common law” courts — that is, by ordinary civil action in federal court, without reference to “admiralty,” given an independent basis of federal jurisdiction (e. g., diversity of citizenship and requisite jurisdictional amount as provided in 28 U.S.C. § 1332) or in state court. See Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Madruga v. Superior Court, supra; Rounds v. Cloverport Foundry & Machine Co., 237 U.S. 303, 35 S.Ct. 596, 59 L.Ed. 966 (1915); Leon v. Galceran, 78 U.S. (11 Wall.) 185, 20 L.Ed. 74 (1871); see also G. Gilmore & C. Black, The Law of Admiralty § 1-13 (2d ed. 1975). Hence, in the instant case, plaintiff had the option to bring suit either in federal court pursuant to its admiralty jurisdiction or, under the saving to suitors clause, in the appropriate non-maritime court, by ordinary civil action. However, regardless of in which court the action is brought, the federal substantive admiralty or maritime law applies if the claim is one cognizable in admiralty. Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Garrett v. Moore-McCormack Company, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942).

Historically, actions for personal injuries brought in the federal admiralty jurisdiction under the general maritime law do not entitle the injured plaintiff to a jury trial. Green v. Ross, 481 F.2d 102 (5th Cir. 1973). Nor was the unification of the admiralty and civil rules of 1966 intended to work a change in the general rule that admiralty claims are to be tried without a jury. Fed.R.Civ.P. 9(h), 38(e); Romero v. Bethlehem Steel Corporation, 515 F.2d 1249 (5th Cir. 1975). Fed.R.Civ.P. 9(h) serves only as a device by which the pleader may claim the special benefits of admiralty procedures and remedies, including a nonjury trial, when the pleadings show that both admiralty and some other basis of federal jurisdiction exist. Romero v. Bethlehem Steel Corporation, supra. However, an action for personal injury cognizable in admiralty may be brought, assuming the existence of some independent jurisdictional basis like diversity of citizenship, as a civil suit pursuant to the “saving to suitors” clause of 28 U.S.C. § 1333. In these civil suits, the plaintiff is entitled to a jury trial in accordance with the principles governing civil actions generally. Romero v. Bethlehem Steel Corporation, supra. As expressed by the Supreme Court in Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, supra, 369 U.S. at 360, 82 S.Ct. at 784:

This [admiralty] suit being in the federal courts by reason of diversity of citizenship carried with it, of coarse, the right to trial by jury. As in cases under the Jones Act . . . trial by jury is part of the remedy. (emphasis added) (citations omitted)

Trial by jury is a remedy generally afforded in our state courts. La.Code Civ.P. arts. 1731-35. In considering whether a litigant is entitled to a jury trial on an admiralty claim in personam brought in our state courts, it seems clear to us that, if the right to trial by jury is one of the remedies saved to a suitor under 28 U.S.C. § 1333 when he brings such a claim by ordinary civil action in federal courts, then this remedy should be afforded him in our state courts. There simply is no apparent conceptual difference between an admiralty in personam claim brought under the saving to suitors clause as an ordinary civil action in federal court and one brought under the same clause as an ordinary civil action in state court. Hebert v. Diamond M. Company, 367 So.2d 1210 (La.App. 1st Cir. 1978).

In rejecting plaintiff’s demand for a jury trial in the instant case, the court of appeal reasoned that jury trials of admiralty claims in state courts would conflict with substantive federal admiralty law. We do not agree.

It has long been established that a state court, having concurrent jurisdiction with the federal courts as to in personam admiralty claims, is free to adopt such remedies and attach to them such incidents as it sees fit so long as it does not attempt to modify or displace essential features of the substantive maritime law. See Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582 (1924). In Fitzgerald v. United States Lines Co., 374 U.S. 16, 20, 83 S.Ct. 1646, 1650, 10 L.Ed.2d 720 (1963), the Supreme Court noted:

While this Court has held that the Seventh Amendment does not require jury trials in admiralty cases, neither that Amendment nor any other provision of the Constitution forbids them. Nor does any statute of Congress or Rule of Procedure, Civil or Admiralty, forbid jury trials in maritime cases, (footnotes omitted)

Affording a litigant a right to trial by jury in our state courts does not, therefore, modify or displace essential features of the substantive maritime law. Hebert v. Diamond M. Company, supra; Lister v. Texaco, Inc., 361 So.2d 290 (La.App. 1st Cir.), writ denied, 362 So.2d 794 (La.1978). As stated by Judge (now Justice) Blanche in Hebert v. Diamond M. Company, supra, “[a] jury trial is simply a method of enforcing substantive rights. As such, it is purely remedial..."

In sum, we conclude that a right to a trial by jury is one of the remedies to which a suitor is otherwise entitled pursuant to 28 U.S.C. § 1333 when an in personam suit based upon the general maritime law is brought in our state courts.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the district court for further proceedings in accordance with the views expressed herein.

      . 346 So.2d 239 (La.App. 4th Cir. 1977).

      . 363 So.2d 1243 (La.App. 4th Cir. 1978).

      .366 So.2d 572 (La.1979).


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    Leopoldo C. MARQUEZ, Individually and as father and guardian of and for the use and benefit of his minor child, James A. Marquez v. CITY STORES COMPANY (owners of Maison Blanche Stores), Travelers Insurance Company, Otis Elevator Company and Commercial Union Insurance Companies.
    No. 63659.
    Supreme Court of Louisiana.
    May 21, 1979.

      Ralph E. Orpys, Metairie, James David McNeill, New Orleans, for plaintiff-applicant.
    Donald 0. Collins, Jones, Walker, Waech-ter, Poitevent, Carrere & Denegre, New Orleans, for defendants-respondents.
   DIXON, Justice.

Plaintiff sued the department store, and others, for injuries sustained by his three and one-half year old son when the child’s tennis shoe got caught in a descending escalator, resulting in subsequent surgical amputation of the big toe of the left foot. The district court found for the father and against the store owner and its insurer but dismissed the main demand by the father as well as the third party demand of the store owner and its insurer against the escalator installer and its insurer. On appeal by the store owner, the Court of Appeal reversed the trial court finding that the store owner and its insurer were not liable under either a tort or a strict liability theory and that the judgment dismissing the escalator installer and its insurer was final. We granted writs.

On February 21, 1976 plaintiff, his wife and two minor children were on the escalator at Maison Blanche department store in Lake Poorest Plaza in New Orleans descending from the second to the first floor. Plaintiff was standing on the same step as his three and one-half year old child. He had his hand lightly on his son’s shoulder while the child had his hand on the handrail. Although the father could not explain how the accident happened, he testified that the child was not misbehaving and that they were simply standing on the escalator when his son’s left foot was caught in the side of the escalator between the moving stair tread and the adjacent side panel of the escalator. The child was wearing relatively new and not excessively worn tennis shoes; the left shoe was cut along the front side in the area of the big toe. Another passenger on the escalator drove the family to the hospital where the doctor surgically amputated half of the child’s left big toe. Medical testimony from the treating orthopedic surgeon indicates that the child has a 10% permanent loss of his foot, that he will forever have trouble pushing off or jumping, and that his gait is affected.

The father, Leopoldo C. Marquez, individually and as guardian of his minor child, James, sued City Stores Company, the owner of Maison Blanche, its insurer, Travelers Insurance Company, Otis Elevator Company, which had constructed the elevator and was under contract with Maison Blanche to maintain it, and its insurer, Commercial Union Insurance Companies. All defendants answered and denied negligence and, in the alternative, asserted negligence of the father in failing to supervise properly his son. City Stores and Travelers also filed a third party demand against Otis and Commercial, alleging that if the store owner was found negligent, the proximate cause of the accident was the negligence of Otis in failing to maintain properly the escalator equipment, and seeking indemnification or contribution from Otis and Commercial.

The trial court held that there was no contributory negligence, and that City Stores was liable to plaintiff. The third party demand against Otis was dismissed because the trial court could find no negligence in Otis’ performance and no indemnification provision in the maintenance contract sued on. Only City Stores appealed the trial court judgment; plaintiff and Otis answered the appeal. In reversing the trial court’s finding on the factual issue of liability, the Court of Appeal found that this accident could not have been anticipated by City Stores even with the exercise of all human care, vigilance and foresight reasonably suggested under the circumstances; that the plaintiff failed to prove a defect or vice in the escalator through which the damage occurred, as one of the elements of strict liability under Loescher v. Parr, 324 So.2d 441 (La.1975); and that the dismissal of Otis and its insurer was a final judgment because plaintiff only answered City Stores’ appeal without taking his own appeal.

As the intermediate court correctly stated, the issue in this case is whether City Stores is strictly liable under C.C. 2317, which provides:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

In Loescher v. Parr, supra, this court interpreted this article to provide a basis of strict liability for the owner of a defective thing independent of the “modifications” in the following Civil Code articles 2318-24, but consistent with the scheme of delictual responsibility represented by these companion articles. We held that C.C. 2317 embodies the concept of legal fault without personal negligence of the guardian of a thing for the damage caused by the defect of his thing.

In Loescher v. Parr, supra, this court found that the owner was strictly liable when a rotten tree fell across a neighbor’s car, causing damage. This court reasoned that the plaintiff had proved (a) that the thing which caused the damage was in the care (custody) of the owner, (b) the defect or vice of the tree, and (c) that his damage occurred through this defect or vice. Therefore, we held that the owner of the defective thing was liable for his legal fault in maintaining the defective tree and in not preventing its vice from causing injury.

C.C. 2317 and Loescher v. Parr, supra, have been applied to hold a department store owner strictly liable for injuries a plaintiff sustained on a defective escalator in its store. Wolverton v. City Stores Co. (Maison Blanche division), 363 So.2d 1321 (La.App.1978).

In the instant case, however, it is not argued that the escalator which caused the damage was not in the custody of the store owner nor that the damage did not occur through the escalator. But the Court of Appeal did find that the plaintiff did not prove a defect or vice in the escalator. The court noted that the national standards for safe escalator construction provide that a necessary side opening between the moving stair tread and the stationary adjacent panel may not exceed three eighths of an inch, and in this case the opening was not more than three sixteenths of an inch. Also noting that there was no evidence in the record that such an accident had ever happened before, the court viewed this accident as a freak accident, citing Cannon v. Holmes, 274 So.2d 799 (La.App.1973), writ denied 277 So.2d 677 (La.1973) and Norberg v. Sears Roebuck & Co., 321 So.2d 795 (La.App.1975). The Court of Appeal also rejected plaintiff’s testimony that the escalator shook like an earthquake and that there was a flash of light from under the stairs, after reviewing Otis’ testimony that it was impossible for this to happen.

However, the plaintiff’s testimonial to these unusual occurrences has nothing to do with this- court’s finding of a vice or defect in the escalator. The record indicates that the plaintiff and his son were properly using the equipment for the purpose and in the manner intended; there was no finding of contributory negligence. Presumably, several hundred thousand people have used this same escalator since it was installed in 1972 without a foot becoming wedged in the side opening. The fact that this escalator caught this child’s shoe is an unusual occurrence in itself which would not have happened had this escalator not been defective. Ott v. J. C. Penney Co., 360 So.2d 524 (La.App.1978); Tarantino v. City Stores Co. (Maison Blanche division), 278 So.2d 149 (La.App.1973), writ denied 281 So.2d 741 (La.1973).

Further, the testimony of the maintenance supervisor for Otis, Roger Harris, that the opening in this case was not more than three sixteenths of an inch and that the national standards for safe escalator construction allow three eighths of an inch is insufficient to rebut the inference that there was a vice or defect in this escalator which caused an unreasonable risk of harm to another. If this escalator were safe for small children with small feet, then James’ shoe could not have been caught in this opening.

Nor is this accident a freak accident. Otis’ own evidence shows that a part of a tennis shoe got caught in the same opening seven months after this accident. Further, in Mire v. Otis Elevator Co., 357 So.2d 1326 (La.App.1978) an almost identical accident occurred on an Otis escalator in D. H. Holmes in Lakeside Shopping Center in New Orleans. In Mire the minor child was descending from the second to the first floor on the same step with her mother when the child’s tennis shoe was caught in the opening between the moving step and the adjacent side panel, and subsequently two thirds of her fifth toe had to be surgically amputated. The department store and Otis raised the same defenses as in the instant case, denying negligence and alleging contributory negligence of the parent in failing to supervise properly the minor child. The same maintenance supervisor for Otis, Roger Harris, testified in Mire that the opening between the escalator tread and the adjacent skirt was not more than three sixteenths of an inch, and the national standards permitted three eights of an inch; however, the jury found the escalator defective and specifically found the mother not contributorily negligent. The Court of Appeal found that the jury did not abuse its discretion.

Although the similarity of facts between Mire, supra, and the instant case does not prove that the escalator in the instant case was defective, it does demonstrate that this accident is not a freak accident. We find that the escalator which caused damage was in the custody of City Stores; that the escalator was defective; and that the injury occurred through this defect. Therefore, we hold City Stores liable for maintaining a defective escalator and in not preventing its vice from causing injury.

In brief respondent, City Stores, and its insurer, seek in the event this court reinstates the trial court judgment, that we find in favor of the respondent on its third party demand for indemnification against Otis and its insurer. City Stores alleged in its third party demand that Otis was the tort feasor whose gross and wanton negligence in failing to maintain properly the escalator equipment was the proximate cause of the injury, and filed into evidence its maintenance contract with Otis. Finding no negligence in performance of the contract and no requirement of indemnification in the contract, the trial court dismissed the third party demand. We find no evidence in the record of negligent performance or of an indemnification provision, and (in the absence of a contrary argument in brief to this court specifying how the trial court erred, how Otis violated its contract or how Otis warranted the safety of its escalators) we find that City Stores has failed to prove its third party claim; we affirm the trial court’s dismissal of it.

For these reasons, we reverse the Court of Appeal and reinstate the judgment of the trial court in favor of plaintiff, Leopoldo C. Marquez, individually, for $558.32, and in favor of Leopoldo C. Marquez as father and guardian of the minor child, James A. Marquez, for $7500.00, and against City Stores Company (Maison Blanche) and Travelers Insurance Company, in solido. We affirm the dismissal of the third party demand against Otis Elevator Company, and tax all costs to City Stores Company and its insurer.

MARCUS, J., dissents.

      . This court summarized in Loescher v. Parr, supra, the principle of legal fault in these companion articles, C.C. 2318, 2320, 2321 and 2322, as follows:
      “When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.
      The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a- consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.
      This jurisprudence recognizes that the injured person must prove the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice. Once this is proved, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.
      The legal fault thus arising from our code provisions has sometimes been referred to as strict liability.” 324 So.2d at 446-447.

      . In Mire the primary conflict in the evidence centered around the width between the side of the step tread and the adjacent skirt. Mr. Harris testified that when he inspected the escalator after the accident the clearance varied from one eighth to three sixteenths of an inch and the national standards allow three eights of an inch. Apparently, the jury believed the plaintiff, a civil engineer, who on the day of the injury measured the side opening and found ft varied from one eighth to three fourths of an inch at different points.

      . The intermediate court reasoned that if any defendant was liable it should have been Otis, the constructor and installer of the escalator, because there were no safety switches along the side panel to stop the escalator when an object is caught, no guards or strips to protect a soft rubber object from getting caught and no signs to warn passengers against tennis shoes along with bare feet on the escalator. However, as the trial court noted, the maintenance contract between Otis and Maison Blanche provides:
      “We shall not be required to make other safety examinations nor to install new attachments on the escalators whether or not recommended or directed by insurance companies or by governmental authorities, nor to make any replacements with parts of a different design. It is agreed that we are not required to make renewals or repairs necessitated by reason of negligence or misuse of the equipment or by reason of any other cause beyond our control except ordinary wear and tear.”


author:
BLANCHE, Justice.
      MARCUS, Justice

text:
    Mrs. Jenny M. CARNEY v. AMERICAN FIRE & INDEMNITY COMPANY.
    No. 63678.
    Supreme Court of Louisiana.
    May 21, 1979.

      Frank R. Bolton, Jr., Broussard, Bolton & Halcomb, Alexandria, for plaintiff-applicant.
    Eugene J. Sues, Gold, Little, Simon, Weems & Bruser, Alexandria, for defendant-respondent.
   BLANCHE, Justice.

This is an action by the plaintiff-relator-beneficiary to recover insurance death benefits under a family combination automobile policy issued by the American Fire & Indemnity Company to Phillip L. Carney.

In lieu of trial of the matter, the facts of the case were stipulated between counsel as follows:

“Mrs. Jenny M. Carney was married to and living with Phillip L. Carney on the date of Phillip L. Carney’s death, being March 19, 1977. At the time of the suit she was an individual of the full age of majority and domiciled in Rapides Parish, Louisiana.
“Phillip L. Carney, while married to and living with Jenny M. Carney, was killed on March 19, 1977, at the Texas World Speedway in Bryan, Texas, while driving a Formula F racing vehicle in a racing event sanctioned by the Sports Car Club of America, Inc.
“The race track where the accident occurred was not a public highway or a public road.
“The vehicle which Phillip L. Carney was operating at the time of his death was a Formula F Ford vehicle which was an untitled, unlicensed, 4-wheeled motor vehicle.
“The Formula F Racing vehicle which Phillip L. Carney was operating at the time of his death was not equipped with safety equipment such as a horn, tail and headlights or any other type of turn signal indicators. The racing vehicle was fitted with all safety equipment required by the rules and regulations of the Sports Car Club of America, Inc. for participation in one of its sanctioned racing events. [A photograph of said vehicle was attached thereto and marked as Joint Exhibit No. 1.]
“On March 19, 1977, there was in full force and effect a policy of automobile insurance between American Fire & Indemnity Company and Phillip L. Carney [a copy of which was attached thereto and marked for identification as Joint Exhibit No. 2]. Said policy provides for a $5,000.00 Automobile Accidental Death Indemnity benefit as per Part V of the policy.”

The issue presented is whether the plaintiff is entitled to recover death benefits pursuant to Part V of the policy of insurance filed into evidence. As a prerequisite for recovery, the policy provides that the insured’s death result from injuries sustained in or by an automobile as defined in the policy. Therefore, in order to resolve the issue presented herein, our first inquiry is to review the definition of “automobile” as set forth in the policy.

Under Part V of the policy, “automobile” is defined as follows:

“With respect to this insurance the word ‘automobile’ means a land motor vehicle, trailer, or semitrailer not operated on rails or crawler-treads, but does not mean: (1) a farm type tractor or other equipment designed for use principally off public roads, except while actually upon public roads, or (2) a land motor vehicle or trailer while located for use as a residence or premises and not as a vehicle.”

Whether the racing vehicle operated by Carney at the time of his death was an automobile within the meaning of the above definition is the matter for our decision.

The trial court concluded that the vehicle operated by Carney was not an “automobile” as defined by the policy provision. In Reasons for Judgment, the trial judge stated:

. The definitions of ‘automobile’ in the policy before this Court is not ambiguous and means just what it says. The auto racer driver by Phillip Carney was designed principally for use off the public road. It is clear that this vehicle could not be operated on the public highways of the State of Louisiana because it did not contain the required equipment set forth in La. R.S. Title 32:301-378.

Plaintiff argues that the insurer by its definition of the word “automobile” clearly affords him coverage with the inclusive language defining “automobile” as a “land, motor vehicle, trailer, or semitrailer not operated on rails or crawler-treads” but attempts by construing the language “or other equipment designed for use principally off public roads, except while actually upon public roads” to t,ake coverage away.

While plaintiff does not contest that a racing vehicle such as that driven by the deceased was designed for use principally off public roads, she does insist that it is definitely not “other equipment” as used in the above definition. Judge Domengeaux, in his dissent, argued plaintiff’s case when he found the exclusion ambiguous. Plaintiff fortifies this argument by stating that the word “equipment” is a word of broad meaning and must be modified by an adjective to assume significant meaning. Thus, “other equipment” immediately follows “a farm type tractor.” Accordingly, it must relate to other equipment of that nature and not an automobile, albeit a racing one that is clearly a land motor vehicle.

Plaintiff otherwise argues that if the wording meant to exclude a racing vehicle, it should have said so and to this extent the language is ambiguous and should be construed against the insurer so as to afford coverage for this type of vehicle.

The Court of Appeal correctly observed that the issue of whether this language is ambiguous has not been resolved in an appellate opinion in this state. However, the Supreme Courts in four of our sister states —Kansas, Oregon, Nebraska and Texas — as well as an appellate court of Ohio, have held that this exact language in a policy is not ambiguous.

Both the trial court and the Court of Appeal were of the opinion that the exclusionary language was not ambiguous, both relying on decisions of our sister states. As noted by the Court of Appeal, we are not bound by these cases, but differently from the Court of Appeal, we do not find them as persuasive. Furthermore, we have no doubt that the insurer did not intend to insure racing vehicles used primarily off public roads. However, we do believe that the language relied on to exclude such vehicles is ambiguous and we construe it against the insurer.

As noted below, in our mind, it is indeed questionable whether such language excludes a racing vehicle. The Court of Appeal found “equipment” to be a broad term, the meaning of which depends on the context in which it is used. We agree, but do not agree that it means some type of a “vehicle” in the context in which it was used. As a vague or broad term, the word “equipment” used alone means nothing. It must be modified by some adjective to assume significant meaning. Thus, such words as “farm,” “hunting” or “photographic” give the word “equipment” meaning.

We would have no trouble excluding from coverage cotton balers, bean pickers, corn pullers or like equipment, because they are farm type tractors and are used primarily off public roads. However, our difficulty is like that of our learned brother, Judge Domengeaux, who stated in his dissent:

“. . . In common parlance it is difficult to conceive that a racing car can logically be designated as ‘equipment.’ ”

While the insurer used the term “land motor vehicle” in its inclusionary language defining “automobile” and also in its exclusionary language under subdivision (2), would it not have been just as easy to exclude “land motor vehicles” used principally off public roads by using the word “vehicle” instead of “equipment.” Why send the court to the dictionary to define “equipment” so as to opine that it includes a racing car as equipment used principally off public roads? Had the insurer desired to exclude racing cars from coverage, it seems to us this could have been more simply accomplished by using a “racing exclusion” as found in some policies.

Thus, on the one hand, we have the drafters of the policy being quite specific concerning the use of the term “land motor vehicle” or “trailer” in some provisions of the policy and yet excluding a racing car as a land motor vehicle from coverage under the general or broad definition of “a farm type tractor or other equipment.”

Judge Paul B. Landry of the First Circuit Court of Appeal in Martin v. Phillips, 356 So.2d 1016 (La.App. 1st Cir. 1977), in denying coverage under an exclusionary provision of an insurance policy, appropriately stated the following legal precepts which are applicable to resolving the issue here:

“The rules governing interpretation of written agreements apply to insurance contracts. La.C.C. Article 1901; Jennings v. Louisiana and Southern Life Insurance Company, 280 So.2d 297 (La.App. 1st Cir. 1973), and authorities therein cited.
“The terms and provisions of an insurance contract, as in the case of other written agreements, are to be construed in their general and popular meaning. Schmieder v. State Farm Fire & Casualty Company, 339 So.2d 390 (La.App. 1st Cir. 1976).
“Any ambiguity in an insurance contract will be construed against the insurer and in favor of the insured. Jennings, above.
“Where the terms of an insurance contract are clear and express, the agreement will be enforced between the parties according to its provisions because the contract is the law between the parties. Schmieder, above.
“An insurance contract must be interpreted as a whole. All terms and provisions of such a policy must be construed together to ascertain the true intent of the parties. La.C.C. Article 1948; Elledge v. Warren, 263 So.2d 912 (La.App. 3rd Cir. 1972).” (356 So.2d at 1018, 1019)

Following these same rules, however, we do find ambiguity in the above policy provision.

We also refer to the case of Hendricks v. American Employers Insurance Company, 176 So.2d 827 (La.App. 2nd Cir. 1965), writs refused, 248 La. 415, 179 So.2d 15, stating:

“The contract before the court in this case is, of course, not an ordinary business contract, but rather it is one of insurance. While it is true that the law of contracts and conventional obligations is applicable to contracts of insurance in general, there are some vital differences. One such difference is that contracts of insurance are unilaterally prepared in the confection of which the insured has no part. It is for this reason that it has become well-settled law in the field of insurance that words and phrases employed in a contract of insurance are to be construed, interpreted and defined in their ordinary and popular sense, rather than in a technical, philosophical or limited sense; that such words and phrases are to be construed liberally in favor of the policyholder and that all ambiguities are likewise to be resolved in favor of the policyholder. See Louisiana Civil Code Articles 1945 et seq., particularly Article 1957 and cases cited.
“Insurers may limit their liability where such limitation is clearly and expressly set forth in the contract of insurance. Such limitations or exclusions, however, must be free of ambiguity and sufficiently understandable to any given insured that it may be said that, in entering into the agreement containing such limitation, he understood and consented to such limitation. If the words or terms used in insurance policies are subject to more than one accepted meaning, then such words must be construed in the sense which is more favorable to the insured, unless such interpretation would lead to absurd results. See Louisiana Civil Code Articles 1957 and 1945(3).” (176 So.2d at 830)

Likewise in Bowab v. St. Paul Fire and Marine Insurance Company, 152 So.2d 66 (La.App. 3rd Cir. 1963), writ refused, 244 La. 664, 153 So.2d 881, Judge Tate (now Justice on our Court), in dissenting, stated:

“The majority pays lip service to the following principles of construction recently summarized by us in Hardee v. Southern Farm Bureau Casualty Ins. Co., La.App. 3 Cir., 127 So.2d 220, 221-222: ‘The principles applicable to construction of insurance policies are not disputed. In case of ambiguity, the policy provisions are construed most favorably to the insured and against the insurer, and of the permissible constructions that will be adopted which effectuates the insurance over that which defeats it. . .

(152 So.2d at 73)

Judge Tate further stated:

“In tax law, somewhat similarly, ambiguities in tax statutes are supposed to be construed in favor of the taxpayer. Brown v. LaNasa, 244 La. 314, 152 So.2d 33. In resolving an ambiguity in favor of the taxpayer, the Chief Justice very recently noted that the statutory clause ‘is susceptible of at least two constructions or interpretations, and, therefore, ambiguous.’ 152 So.2d 36. (Italics added.)
“In applying this common-sense test of ambiguity, it seems to me obvious that the policy provision in question is susceptible of two reasonable constructions and is ‘therefore ambiguous’. In such instances, as we have shown, as a matter of law the courts are required to adopt that policy construction which affords protection to the insured, as against another construction which does not — however much the court may feel that the insurance company which wrote and sold the policy and collected a premium therefor might have intended an equally reasonable construction which is, however, less favorable to its policyholder.” (152 So.2d at 73)

Having found that the decision of the Court of Appeal must be reversed as to liability, we next determine whether the statutory penalties and attorney’s fees should be awarded for arbitrarily refusing payment of the claim.

An insurer’s liability to pay penalties and attorney’s fees is based on whether their action in denying coverage is arbitrary, capricious and without probable cause. LSA-R.S. 22:658. An insurer must take the risk of misinterpreting its policy provisions. If it errs in interpreting its own insurance contract, such error will not be considered as a reasonable ground for delaying the payment of benefits, and it will not relieve the insurer of the payment of penalties and attorney’s fees. Albert v. Cuna Mutual Insurance Society, 255 So.2d 170 (La.App. 3rd Cir. 1971), and cases therein cited.

In other words, insurers should not have their policy provisions interpreted at the expense of the insured, especially when they are charged with knowledge of their policy’s contents.

However, these legal principles have no application to the defendant, because their denial of coverage was not arbitrary and capricious.

As noted by learned counsel for defendant, the trial court, three judges from the Third Circuit Court of Appeal and numerous justices from the Supreme Courts of the States of Kansas, Oregon, Nebraska and Texas, as well as an Ohio appellate court, have all held that the provision here in question is not ambiguous and rejected recovery based upon the identical policy language. Thus, he concludes, “If this clause were indeed ‘ambiguous’ as contended by applicant, it would seem reasonable that at least one of the many learned judicial minds in both trial and appellate courts of our sister states would have so commented.”

In view of these considerations, we find that the defendant’s refusal to pay was not arbitrary, capricious or without probable cause.

For the above reasons, the judgment of the Court of Appeal is reversed, and judgment is rendered herein in favor of plaintiff, Mrs. Jenny M. Carney, and against the defendant, American Fire & Indemnity Company, in the full sum of $5,000, together with legal interest thereon from date of judicial demand until paid, and for all costs of these proceedings.

REVERSED AND RENDERED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I agree with the courts below that the racing vehicle operated by Carney at the time of his death was not an “automobile” as defined in the policy. Accordingly, I respectfully dissent.


author: PER CURIAM.

text:
    STATE of Louisiana v. Phillip MALVEAUX.
    No. 63824.
    Supreme Court of Louisiana.
    May 30, 1979.
    Donald Soileau, Mamou, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., A. Bruce Rozas, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The issue of whether defendant was denied effective assistance of counsel is more properly raised by application for writ of habeas corpus. State v. Anthony, 347 So.2d 483 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976).

Finding no reversible error based on the record before us, defendant’s conviction and sentence are affirmed.


text:
    STATE of Louisiana v. John Henry ROSS.
    No. 63827.
    Supreme Court of Louisiana.
    May 30, 1979.
    Fred H. Belcher, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Freddie Pitcher, Jr., Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DIXON, J., dissents.


text:
    STATE of Louisiana v. Arthur FORREST.
    No. 63838.
    Supreme Court of Louisiana.
    May 30, 1979.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DENNIS, J., dissents.


text:
    STATE of Louisiana v. James CROWDER.
    No. 63901.
    Supreme Court of Louisiana.
    May 30, 1979.
    Rehearing Denied June 25, 1979.

    James T. Genovese, Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appel-lee.

       Calogero and Dennis, JJ., would grant a rehearing.

   PER CURIAM.

Affirmed.

CALOGERO and DENNIS, JJ., dissent.


text:
    Jean C. McKINNEY v. Wilfred L. GOMEZ, Jr., and Cumis Insurance Society, Inc.
    No. 64623.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Jean C. McKinney, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. No. 12,526.

Writ denied.

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


text:
    Gladys BANKS v. NEW ORLEANS PUBLIC SERVICE, INC., and Delores Butler.
    No. 64589.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Gladys Banks, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 10014.

Writ denied.


text:
    STATE of Louisiana ex rel. Bernell THOMPSON v. Judge Richard GAUTHIER.
    No. 64595.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Bernell Thompson applying for writ of mandamus. Parish of St. Bernard.

Writ denied. Response from trial judge indicates that counsel has been appointed and trial set for 6/19/79.


text:
    STATE of Louisiana v. Paul G. TROQUILLE.
    No. 64599.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Paul G. Troquille, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Sabine. No. 26,050.

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


text:
    STATE of Louisiana ex rel. Roland WILLIAMS v. C. Paul PHELPS.
    No. 64601.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Roland Williams applying for writ of certiorari. Parish of Orleans. No. 252-333.

Writ denied.


text:
    STATE of Louisiana ex rel. Albert BERNARD v. Honorable Frank SHEA.
    No. 64607.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Albert Bernard applying for writ of habeas corpus. Parish of Orleans. No. 268-045.

Writ denied. Return from trial judge indicates that full revocation hearing has been set.


text:
    STATE of Louisiana ex rel. Joseph SIEGEL v. Roger AUCOIN.
    No. 64608.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Joseph Siegel applying for writ of habeas corpus. Parish of East Baton Rouge. No. 1-74-8052B.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph V. FOSTER, Jr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, and 20th Judicial District Court, Parish of West Feliciana.
    No. 64610.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Joseph V. Foster, Jr., applying for writ of mandamus. West Feliciana Parish. No. 6793.

Writ denied.


text:
    STATE of Louisiana ex rel. Lawrence ROBERTSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64611.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Lawrence Robertson applying for writs of habeas corpus and certiorari. Orleans Parish.

Denied.


text:
    STATE of Louisiana ex rel. Herman SMITH, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64614.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Herman Smith, Jr., applying for writs of habeas corpus, certiorari, prohibition, and mandamus. Parish of Assumption.

Writ denied.


text:
    Lester H. THORNE v. George H. LEHLEITNER & CO., David Dumas and Liberty Mutual Insurance Co.
    No. 64625.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Lester H. Thorne, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans, 370 So.2d 645.

Writ denied.


text:
    CITY OF SHREVEPORT v. Thomas Kaye SCHONFARBER, Jr.
    No. 64627.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Thomas Kaye Schonfarber, Jr., applying for writs of prohibition, and stay order. City Court of Shreveport. Caddo Parish. Nos. H-026, H-027, H-028 and H-029.

Denied.

DENNIS, J., would grant the writ.


author: TATE and DENNIS,

text:
    STATE of Louisiana v. Frank FISCHER.
    No. 64750.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Frank Fischer, applying for writs of certiorari, prohibition, mandamus and for a stay order. Orleans Parish. No. 264-728.

Writ denied.

TATE and DENNIS,

JJ., dissent. We should specify that the defendant should be released on bail to be fixed by the trial court, if the defendant is not tried before June 30th.


text:
    STATE of Louisiana v. Milton J. BALSER, III.
    No. 64753.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Milton J. Balser, III applying for writ of habeas corpus. Parish of Jefferson. No. 79-1126.

Writ denied.


text:
    STATE of Louisiana v. Danny Ray WILLIAMS.
    No. 64764.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Danny Ray Williams, applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. (Criminal) 111,-058.

Writ denied.


text:
    STATE of Louisiana v. Clifton BELTON.
    No. 64721.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Clifton Belton applying for remedial writ. Parish of East Baton Rouge. No. 7-78-447.

This filing is a prematurely filed appeal brief and will be so treated.


text:
    STATE of Louisiana ex rel. Bobby HOLMES v. Hayden J. DEES, Warden.
    No. 64170.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Bobby Holmes applying for writ of certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Milton REED, Jr. and Robert Desdunes, Jr. v. Frank C. BLACKBURN, Warden.
    No. 64174.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Milton Reed, Jr. and Robert Desdunes, Jr. applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans. No. 260-736.

Writ denied.


text:
    STATE of Louisiana ex rel. Calvin WALLACE v. Hon. Bernard J. BAGERT, Sr., Judge.
    No. 64230.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Calvin Wallace applying for writ of mandamus. Parish of Orleans. Nos. 262-041 and 261-791.

Writ denied. Records from Criminal District Court for the Parish of Orleans do not indicate any conviction for simple escape.


text:
    STATE of Louisiana ex rel. Billy Raymond AUSTIN v. 19TH JUDICIAL DISTRICT COURT.
    No. 64255.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Billy Raymond Austin applying for writ of certiorari. Parish of East Baton Rouge. No. 61,859.

Denied.


text:
    STATE of Louisiana ex rel. Oscar D. LEE v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 64273.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Oscar D. Lee applying for writ of mandamus. Parish of Orleans. No. 263-730.

Denied; the record for appeal is being prepared, and the appeal is not final, according to the OIDP.


text:
    Ezell AMOS, Jr. v. BROWN & ROOT, INC. and Highlands Insurance Company.
    No. 64419.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Ezell Amos, Jr. applying for writ of certiorari, Fourth Circuit Court of Appeal. No. 9948. Parish of Orleans.

Writ denied.

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


text:
    STATE of Louisiana ex rel. Lieutenant COWART v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 64457.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Lieutenant Cowart applying for remedial writ. Parish of Orleans.

Writ denied. The OIDP informs this court the record on appeal has not yet been provided.


text:
    STATE of Louisiana ex rel. Willie Isaac SMITH v. O. H. HAYNES, Sheriff.
    No. 64552.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Willie I. Smith applying for remedial writ. Parish of Webster.

Denied.


text:
    STATE of Louisiana ex rel. Tommy JOHNSON v. Frank C. BLACKBURN, Warden.
    No. 64553.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Tommy Johnson applying for writs of certiorari and habeas corpus. Parish of Orleans. No. 228-690.

Writ denied. Application is without merit.


text:
    STATE of Louisiana ex rel. Ivan Leon MOLINARIO v. Honorable Charles R. WARD, Judge.
    No. 64556.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Ivan Leon Molinario, applying for writ of mandamus. Orleans Parish. No. 259-274.

Writ denied. The record may be supplemented on appeal if necessary.


text:
    R. T. L. CORPORATION v. John O. ST. AMANT, Sheriff, Parish of St. Charles.
    No. 64567.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re John O. St. Amant, Sheriff, Parish of St. Charles, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. No. 8916.

Writ denied.


text:
    STATE of Louisiana ex rel. Albert BERNARD v. Hon. Frank SHEA, Judge, Section “G”.
    No. 64568.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Albert Bernard, applying for writ of habeas corpus. Orleans Parish. No. 268-045.

Writ denied. Appeal pending.


text:
    STATE of Louisiana v. Joseph CASBON.
    No. 64569.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Joseph Casbon applying for supervisory writs. Parish of Jefferson. No. 75 - 1953.

Writ denied.


text:
    STATE of Louisiana v. Lloyd A. HESS.
    No. 64572.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Lloyd A. Hess, applying for remedial writs. Parish of Orleans. No. 176-541. Writ denied.

DIXON, J., would grant and order an evidentiary hearing.


text:
    STATE of Louisiana ex rel. Roland RANKER v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 64576.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Roland Ranker, applying for writ of mandamus. Orleans Parish. No. 251-176.

Writ denied.


text:
    STATE of Louisiana ex rel. Albert WILLIAMS v. Frank BLACKBURN, Warden.
    No. 64578.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Albert Williams applying for writ of habeas corpus. Parish of Orleans.

Writ denied.

DIXON, J., would grant the writ and order a hearing.


text:
    STATE of Louisiana v. Ernest SHILOH.
    No. 64579.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Ernest Shiloh, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 78 -1654.

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


text:
    STATE of Louisiana ex rel. Willie HUMPHREY v. Frank C. BLACKBURN, Warden.
    No. 64581.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Willie Humphrey applying for writs of habeas corpus, certiorari and mandamus. Parish of Orleans.

Writ denied.

DIXON, J., would grant the writ and order an evidentiary hearing.


text:
    STATE of Louisiana ex rel. Larry P. CUPPAY v. Frank BLACKBURN, Warden, et al.
    No. 64583.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Larry P. Cuppay applying for writ of habeas corpus. Parish of Orleans. No. 203 640.

Writ denied.


text:
    STATE of Louisiana ex rel. Sterling COLLINS v. Rudolph F. BECKER, Judge, Criminal District Court, Parish of Orleans.
    Supreme Court of Louisiana.
    No. 64587.
    June 1, 1979.
   In re Sterling Collins, applying for remedial writs. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Royal A. EVERY v. Judge Rudolph F. BECKER, III, et al., Criminal District Court, Sec. “E”.
    No. 64588.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Royal A. Every, applying for writ of mandamus. Orleans Parish. No. 250- 228.

Writ denied. '


text:
    STATE of Louisiana ex rel. Gernard CASBON v. Hayden J. DEES, Warden.
    No. 63969.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Gernard Casbon applying for writ of certiorari. Parish of Jefferson. Nos. 77-2256 and 77-2077.

Writ denied.

DIXON, J., would grant and order a hearing.


text:
    STATE of Louisiana ex rel. Earl CLARK v. CLERK OF COURT, 25TH JUDICIAL DISTRICT COURT.
    No. 63803.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Earl Clark applying for writ of mandamus. Plaquemines Parish. No. 39593.

Denied; moot. The court is informed that the requested transcript has been sent to applicant.


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Ervin Charles ST. AMAND v. Honorable Frank J. SHEA, Judge.
    No. 64585.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Ervin Charles St. Amand applying for supervisory writ. Parish of Orleans. No. 268 -635.

Not considered. Applicant must first exhaust his remedies in the trial court.

DIXON, J.,

is of the opinion that this court should “Not Consider” a habeas corpus petition, and would transfer it to the district court.

CALOGERO and DENNIS, JJ., would transfer this application to district court for consideration.


text:
    STATE of Louisiana ex rel. Dwight SMITH v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64582.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Dwight Smith, applying for writ of habeas corpus. Terrebonne Parish.

Writ not considered. Applicant must first exhaust his remedies in the trial court.

DIXON, CALOGERO and DENNIS, JJ., would grant and order a hearing.


text:
    STATE of Louisiana v. Harold James JACKSON.
    No. 64690.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Harold James Jackson applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caddo. No. 111,027.

Granted; no probable cause for charge of attempted 2nd degree murder; Bond should be fixed as for felony theft.


text:
    STATE of Louisiana v. Milton J. BALSER, III.
    No. 64777.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Milton J. Balser, III, applying for writs of certiorari, writ of review, prohibition, mandamus and for a stay order. Jefferson Parish. No. 79-1126.

Writ granted. Hearing ordered on motion to reduce bail.

SUMMERS, C. J., and DIXON, J., dissent from the order.


text:
    STATE of Louisiana v. Lionell G. DUSANG.
    No. 64801.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Lionell G. Dusang; applying for writs of certiorari, prohibition, mandamus and for stay order. Calcasieu Parish. No. 1724 79.

Denied.


text:
    STATE of Louisiana ex rel. Joseph LEMON v. Frank C. BLACKBURN, Warden.
    No. 64355.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Joseph Lemon applying for writ of habeas corpus and certiorari. Parish of Avoyelles. 365 So.2d 250.

Writ denied.


text:
    Harry WOOD v. TOTH ALUMINUM CORPORATION.
    No. 64440.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Toth Aluminum Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 367 So.2d 1338.

Writ denied.


text:
    Curtis ROBERTSON v. JIMMY WALKER CHRYSLER-PLYMOUTH, INC. and Chrysler Corporation.
    No. 64510.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Jimmy Walker Chrysler Plymouth, Inc., applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Rapides. 368 So.2d 747.

Writ denied.


text:
    DELTIC FARM AND TIMBER CO., INC., et al. v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT. ANDERSON-TULLY COMPANY v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT.
    No. 64533.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Board of Commissioners for the Fifth Louisiana Levee District, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Madison. 368 So.2d 1109.

Writ denied.

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


text:
    Curtis ROBERTSON v. JIMMY WALKER CHRYSLER PLYMOUTH, INC. and Chrysler Corporation.
    No. 64534.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Chrysler Corporation applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Rapides. 368 So.2d 747.

Denied.

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


text:
    Norma DUPONT v. The DOCTOR’S HOSPITAL et al.
    No. 64535.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Norma Dupont applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 369 So.2d 1092.

Writ denied.


text:
    Robert E. DOWDEN v. CENTRAL LOUISIANA ELECTRIC CO., INC.
    No. 64536.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Robert E. Dowden applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Calcasieu. 368 So.2d 465.

Writ denied.


text:
    Lawrence J. LACHNEY v. CABOT CORPORATION et al.
    No. 64542.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Cabot Corporation and Texas General Indemnity Co. applying for writs of certiorari, Third Circuit Court of Appeal. Parish of Evangeline. 368 So.2d 500.

Writ denied.


text:
    STATE of Louisiana v. Arthur BENWOIR.
    No. 64551.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Arthur Benwoir applying for writ of habeas corpus, certiorari and mandamus. Parish of Orleans. No. 260-784.

Denied.


text:
    Vera MARA v. Mrs. Doris McCOY et al.
    No. 64573.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Vera Mara applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 369 So.2d 246.

Denied.


text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 64584.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re McArthur Johnson applying for writs of habeas corpus, certiorari, mandamus and prohibition. Parish of Bossier.

Writ denied.


text:
    STATE of Louisiana v. Evans BROWN.
    No. 64596.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Evans Brown applying for writs of certiorari and prohibition. Parish of Orleans. No. 263-368.

Denied.


text:
    STATE of Louisiana ex rel. George Henry LEE v. C. Paul PHELPS.
    No. 64597.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re George Henry Lee applying for writ of certiorari. Parish of Madison. No. 78-603.

Writ denied.


text:
    Elaine REEVES v. GREAT ATLANTIC & PACIFIC TEA CO. et al.
    No. 64602.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Alexandria Coca-Cola Bottling Co. applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Rapides. 370 So.2d 202.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    ALEXANDER & ALEXANDER, INC. v. Richard H. SIMPSON.
    No. 64620.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Alexander & Alexander, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 370 So.2d 670.

Denied.

CALOGERO, MARCUS and BLANCHE, JJ., would grant the writ.


author: DIXON, CALOGERO and DENNIS, JJ.,

text:
    Bill J. GOOD et al. v. LOUISIANA COMMISSION ON GOVERNMENTAL ETHICS.
    No. 64622.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Louisiana Commission on Governmental Ethics, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 370 So.2d 123.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ.,

concur in the denial only because the inspection prohibits an investigation in plaintiffs’ official and professional activities and not personal activities.


text:
    Barbara Gail SAMUEL, wife of/and Raymond Bertz v. TIME SAVER STORES, INC.
    No. 64626.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Barbara Gail Samuel, wife of/and Raymond Bertz, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 369 So.2d 253.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert N. PAULHUS (Robert O’Brien) v. CUSTODIAN OF RECORDS, LOUISIANA STATE PENITENTIARY.
    No. 64557.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Robert N. Paulhus (Robert O’Brien) applying for writs of habeas corpus, mandamus, certiorari and prohibition. Parish of Orleans.

Writ denied.

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


text:
    STATE of Louisiana v. Richard PAYNE.
    No. 64815.
    Supreme Court of Louisiana.
    June 5, 1979.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari and stay order. Orleans Parish. No. 254-798.

Denied; stay order revoked.

SUMMERS, C. J., dissents from the denial.

MARCUS, J., would grant the state’s application.


text:
    STATE of Louisiana v. Robin Brett POLK.
    No. 64804.
    Supreme Court of Louisiana.
    June 5, 1979.
   In re Robin Brett Polk, applying for writs of certiorari, review and mandamus. Parish of St. Tammany. No. 70156.

Writ granted. The cause is remanded to the trial court with direction to hold an evidentiary hearing to determine whether vel non the victim of the alleged kidnapping was released under such circumstances as would invoke the noncapital limitation of R.S. 14:44.

If the trial court finds that the capital penalty cannot be imposed under the terms of the statute, it is directed to admit the defendant to bail in such amount as it deems sufficient.

This Order is without prejudice to the right of the State to show that the non-capital limitation of R.S. 14:44 does not apply or to the right of the Defendant to re-urge his constitutional attack on the death penalty under R.S. 14:44 in the event that he is not admitted to bail after hearing.


text:
    STATE of Louisiana v. Brian PEEBLES.
    No. 64781.
    Supreme Court of Louisiana.
    June 6, 1979.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 270-063.

Granted.

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

It is ordered that a Writ issue herein, and that the Honorable Jerome M. Winsberg, Judge, and the Criminal District Court for the Parish of Orleans transmit to the Supreme Court of Louisiana on or before the 20th day of June, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein.

This cause will be heard on a date and time to be fixed by this court, to determine whether the relief prayed for in the petition of the relator should be granted.


author: GARRISON, Judge. SAMUEL, Judge, SAMUEL, Judge,

text:
    Carol POLMAN, wife of/and Raymond A. Schwankhart v. MOHASCO CORP., Raymond C. Bennet, and Employers Ins. of Wassau.
    No. 9628.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1978.
    On Rehearing June 25, 1979.
    Writ Refused June 15, 1979.

      Sutterfield & Vickery, James R. Sutter-field, New Orleans, for plaintiffs-appellees.
    Wood Brown, III, Trial Atty., New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   GARRISON, Judge.

On May 27, 1975 a collision occurred between a Toyota driven by Carol Polman Schwankhart and a van driven by Raymond C. Bennet, an employer of Weiners Inc. The trial court found that the defendant driver was “plainly” negligent in backing into plaintiff. He also found no credible evidence to support a finding of contributory negligence on plaintiff’s part. We affirm.

The record indicates that the truck missed its turn and stopped in the roadway. Plaintiff then stopped behind the truck. At that point, the truck suddenly backed into the plaintiff’s vehicle.

The trial court awarded plaintiff $525,-000.00 in general damages: $50,000 pain and suffering to date; $350,000.00 future pain and suffering; and $125,000.00 loss of future earning capacity. He awarded $21,-866.19 in special damages to the husband. The trial court termed Mrs. Schwankhart’s injuries as “devastating.” Defendant has appealed.

Before this accident Mrs. Schwankhart had experienced severe problems with her neck. In March of 1974 she had had surgery to fuse discs at the C5-C6 and C6-C7 levels. Her neurosurgeon, Dr. Llewellyn discharged her on May 6, 1974.

The day after this accident she consulted Dr. Llewellyn, who examined her and diagnosed her condition as a cervical sprain. He recommended moist heat, rest and prescribed pain pills and muscle relaxants. She was seen by Dr. Llewellyn and his associates on June 17, 1975 and July 21, 1975. On both of these occasions she was found to be improving although still having complaints. On November 25, 1975 it was found that the plaintiff had improved to a point where she could be discharged to continue conservative treatment of moist heat herself.

She was seen by Dr. Ruel, her orthopedic surgeon on June 30,1975. His examination showed she could hold her head erect without deviation or rotation. There was a decrease of extension and tilting to the right and left. The neurological examination was normal. She also had normal strength and no muscle spasm. The x-rays showed a solid fusion between Cb and C6 and Ce and C7. There were no abnormalities. He diagnosed a cervical sprain and recommended heat and valium. Dr. Ruel again saw the plaintiff on December 23, 1975. Again the examination was normal. There was no change in plaintiff’s range of motion of the cervical spine. No other active treatment was necessary. He did not feel this injury would have any long term effect.

On October 15, 1975 plaintiff was seen by Dr. Eugene Dabezies, an orthopedic surgeon. It was his opinion that she had sustained a cervical sprain which had not disturbed the interbody fusion. She was not a candidate for surgery, nor did she require hospitalization. He did not think she had a cervical disc problem.

All of the doctors who saw Mrs. Schwankhart through 1975 agree she was doing fine, had not disturbed the fusion and did not require hospitalization. As of December 1, 1975 they felt she was able to work. (And indeed she had worked from September 75 through March 1976 for the Chalmette Chiropractic Clinic). However six weeks later her condition had changed considerably. On February 5, 1976 she returned to Dr. Llewellyn “markedly uncomfortable.” He informed her that it was necessary for her to be hospitalized for tests and that further surgery might be necessary. On March 12, 1976 she underwent diskogram studies which indicated she had torn joints at the C3-C4 and C4 C5 levels. These were fused during an operation on March 19, 1976.

The plaintiff progressed satisfactorily until October 21, 1976 when active treatment was felt to be necessary. On January 3, 1977 she had not continued to improve. She was markedly uncomfortable with home therapy and inpatient treatment was necessary. She was rehospitalized on January 9, 1977. X-rays indicated a failure of the C3-C4 fusion and a possible failure at C« -C7. Tomograms were taken on January 10 which showed pseudoarthrosis (failed fusions) at these levels, but the symptoms indicated that the failure was at C3-C4.

On January 20, plaintiff underwent another operation refusing'the C3-C4 disc. C6 -C7 was examined and found to be immobile. Dr. Llewellyn was pleased with her progress one year post operative progress. She was required to wear a hard collar for the year but he is hopeful that eventually she can be out of the collar on a permanent basis. Dr. Dabezies estimated the plaintiff has suffered a 40% anatomical disability of the body, while Dr. Llewellyn opined that she is totally and permanently disabled for work outside of the house.

The record indicates that although plaintiff’s condition improved immediately after the accident, the subsequent deterioration could be attributed to the accident. Dr. Llewellyn characterized her condition at the March, 1976 examination as “representing a failure of conservative therapy” and the doctors generally agreed that it is possible for a patient with this condition to be doing well, then have her condition rapidly deteriorate. They also conceded a patient with a ruptured disc does not necessarily exhibit muscle spasm.

Plaintiff bears the burden of adequately proving a causal relationship between the accident and the injuries complained of. Wyble v. St. Paul Fire & Marine Ins. Co., 316 So.2d 819 (La.App. 3rd Cir. 1975). However, the test is whether plaintiff has shown through medical testimony that more probably than not the subsequent operations were necessitated by trauma suffered in the accident. Hull v. North American Van Lines, 343 So.2d 216 (La.App. 1st Cir. 1977). Dr. Dabezies stated that it is “not highly unlikely” for this patient’s condition to deteriorate to the point where surgery was necessary, although she “initially seemed to do well” after the accident, and the treating physicians opined that there was a failure of conservative therapy following an accident which reinjured the back. Therefore, the medical evidence supports the trial court’s conclusion that the May, 1975 collision was a cause of the subsequent surgical procedures.

As to the awards for pain and suffering, the trial judge who had the opportunity to view the plaintiff on the stand and to evaluate the impressive lay testimony of the torture of her daily existence, as well as the medical evidence, concluded “(s)he will never again work or live anything remotely approaching a normal life” and (h)er remaining 43 years will be spent in substantial pain”. Furthermore, there was considerable evidence that she had been active in camping, boating, sewing, art classes, and numerous other activities with her husband and her two young children prior to this accident and could no longer participate in any of these activities.

The trial court estimated pain and suffering in the two years between the accident and the trial at $50,000.00 and also awarded her an additional $1,000.00 per month for pain and suffering over the remainder of her life expectancy; with the total sum discounted to present day value of $350,000.00. While these awards are generous, we cannot say that the trial court abused its discretion in view of the evidence outlined above. Coco v. Winston Industries, 341 So.2d 332 (La.1976).

As to the $125,000.00 award for impairment of earning capacity, plaintiff was employed from the time of her high school graduation in 1962 until she began having children in 1966. She resumed work in 1975 when her youngest child entered school and worked through March, 1976, when the second surgery became necessary. At the time she left employment she was earning $400.00 per month (the same salary she was earning in 1966) in a clerical position and had applied for a higher paying position with reasonable expectation of obtaining such a job. When she entered the hospital for testing prior to the March, 1976 surgery, she expected to return to work.

Mrs. Schwankhart was evaluated by Dr. Davis, a psychologist, who testified at the trial. From his testimony and his review of Dr. Llewellyn’s limitation of her activity, he concluded that she would be excluded from all of the occupations for which she was trained or qualified.

Dr. Davis also stated plaintiff was suffering from depression, anxiety, and confusion of thinking. Defendant objected to the introduction of the psychologist’s testimony on the basis of R.S. 37:1284, which prohibits one who is not a licensed physician from testifying in court as a medical or surgical expert. The trial judge properly admitted the testimony. He was aware that the testimony was not that of a psychiatrist. However, a psychologist is capable of diagnosing and treating depression. It was within the province of the trial court to determine the weight to be given to this testimony. His decision was not manifestly erroneous.

Finally, we agree with the trial court’s award of $125,000.00 to Mrs. Schwankhart for loss of future earning capacity as her separate property.

An expert in actuarial science calculated the amount which could be placed in an interest bearing fund at time of trial and which (with allowances for salary growth) would yield a fixed amount per month until the fund would be exhausted at the end of 27.7 years (which was plaintiff’s work life expectancy). One of the calculations, based on a salary of $6,000.00 per year and a 2% differential between the rate of interest and the rate of wage growth, yielded the sum of $127,000.00. The trial court apparently used this figure. Noting that such awards cannot be calculated with mathematical certainty and involve numerous considerations, we find no abuse of discretion.

For the foregoing reasoning the judgment of the trial court is affirmed.

AFFIRMED.

SAMUEL, J., dissents and assigns reasons.

SAMUEL, Judge,

dissenting.

I feel that the award of $525,000 to the plaintiff-wife should be materially reduced in the following respects:

1) The $50,000 award for pain and suffering “to date” (from the time of the accident to the time of trial, a period of two years) is excessive, especially when compared with the $350,000 award for future pain and suffering. The award for future pain and suffering is based on a calculation of $1,000 per month during Mrs. Schwankhart’s life expectancy of 43 years. But the award of $50,000 for the two year period following the accident is based on more than double the $1,000 per month figure, despite the fact that for the greater part of the two year period her progress was satisfactory and she was not suffering as much as it was anticipated she will suffer in the future;

2) The $125,000 award for loss of future earning capacity during the estimated 27.7 years of her work life expectancy is excessive because it is based on an estimated earning capacity of $500 per month, or $6,000 per year. The evidence shows this figure of $500 per month is derived solely from the fact that on one occasion she applied for a $500 per month job. She did not obtain that employment. The only earning capacity proved is $400 per month which for a short time she earned as a receptionist. There is not proof of any training or experience which would qualify her for any particular employment. Thus, the proper figure which should form the basis of this award of $400 per month, or $4,800 per year, a difference of $33,240 in this particular award prior to discount;

3) The 40% disability testified to by one of the medical expert witnesses, which 40% forms a material part of the basis for the awards of $50,000 and $350,000, respectively for pain and suffering to date of trial and thereafter, necessarily had to include some disability attributable solely to the prior disc problem and first surgical fusion.

Because I would reduce the awards in accordance with the above,

I respectfully dissent.

ON REHEARING

On rehearing the court has considered additional oral and written argument and has again reviewed the record with particular emphasis on the question of whether the record supports a conclusion that plaintiff will spend the remainder of her life in substantial pain.

The overall record, with medical evidence that plaintiff’s condition is permanent (although probably she will not be required permanently to wear the collar on a continuing basis) and lay evidence that her present life involves daily torture, supports this conclusion. While we would not have initially fixed the award for pain and suffering at such a high figure, our function is not to fix awards, but to review awards for abuse of discretion. We cannot say the awards in this case constitute an abuse of discretion.

Our original decision, affirming the judgment of the trial court, is reinstated.

ON REHEARING

SAMUEL, Judge,

dissenting.

For the reasons expressed in my dissent from the original opinion and decree, I remain of the opinion that the award should be materially reduced.

Accordingly, I respectfully dissent.

      . Plaintiff was 33 years old at time of trial.

      . Defendants also argue Dr. Davis should not have been permitted to testify as to psychotherapy, because R.S. 37:2365 prohibits a psychologist from engaging in psychotherapy “in order to make provision for the diagnoses and treatment of mental illness” except in collaboration and consultation with a licensed physician. The trial court treated the statute as intended to regulate the practice of medicine and, noting that psychiatrists often refer patients to psychologists for this type of testing and evaluation, the court properly overruled the objection to the expert testimony.

      .La.C.C. Art. 2334 states that “actions for damages resulting from offenses and quasi offenses” are the separate property of the wife. The distinction must be made between the loss of earning capacity and the loss of earnings. The former belongs solely to the wife whereas the product of that capacity would belong to the community. However, the loss of earning capacity is a life-long loss which should be placed in the same category as general damages.