text:
    STATE of Louisiana v. Marshall HUGHES, Jr.
    No. 61730.
    Supreme Court of Louisiana.
    June 28, 1978.
    Maurice T. Hattier, 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.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Morris OSELEN.
    No. 61742.
    Supreme Court of Louisiana.
    June 28, 1978.
    Robert J. Zibilich and Forrest L. Bethay, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Philip J. Boudousque, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. George M. MITCHELL, Appellant.
    No. 61445.
    Supreme Court of Louisiana.
    June 30, 1978.

      William B. Lynch, Bossier City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara A. Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Roland McKneely, Asst. Dist. Atty., Bossier City, for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of possession of marijuana with intent to distribute, La.R.S. 40:966 A, and sentenced to eleven months imprisonment at hard labor, suspended.

The single assignment of error urged by his appeal alleges that the district court erred in overruling his motion to suppress the marijuana seized from his residence.

The issue so raised concerns whether the defendant’s “consent” to a warrantless search of his residence, without probable cause, was invalid as coerced by the governmental agents’ exploitation of a prior illegal arrest (itself based upon an illegal search of his automobile).

The uncontradicted evidence of the defendant shows: While on the way to work from his home, the defendant’s vehicle was stopped by two police officers. The officers told him that he was suspected of having marijuana in his vehicle. The defendant asked to see their search warrant.

Despite this objection to the search, the officers searched the vehicle without his consent. They found two marijuana roaches in it. They then read the accused his Miranda rights and placed him under arrest.

After the defendant was arrested, the officers told him, “You might as well take us to your house so we can find the other stuff we are looking for.” The defendant then (again) asked them to show him their search warrant. They told him, “Well, it wouldn’t take us no time to get a search warrant. We can get a search warrant within twenty minutes.”

The defendant testified that he then signed a form consenting to the search of his home, since the officers had already searched his vehicle without a warrant and without his consent, had already arrested him, and had already impounded his vehicle and called some office to remove it from the scene.

The trial court sustained the motion to suppress the roaches seized from the vehicle, holding they were the product of an illegal warrantless search. However, the court denied the defendant’s motion to suppress the marijuana seized from his residence. It held that the accused had consented to that search (following his arrest) and that the burden was upon him to prove the illegality of the residence search.

Initially, we note that the trial court was in error in allocating the burden of proof in the instant case to the defendant. In State v. Franklin, 353 So.2d 1315, 1318-19 (La.1978), this court held that “once the defendant makes the initial showing at a motiop to suppress hearing that a warrantless search occurred, the burden of proof shifts to the State to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant.”

In this case, both the initial search of the defendant’s automobile and the later search of his apartment to which he purportedly consented were made without a warrant. The burden was thus on the state to prove that the search came within an exception to the general constitutional prohibition against warrantless searches.

As we recently stated in State v. Angel, 356 So.2d 986, 988-89 (La.1978): “A valid consent to search is a well recognized exception to the requirement of a valid search warrant; a search pursuant to a voluntary consent need not be based on probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). We have heretofore determined that a voluntary consent to search, given after an illegal detention, is valid under circumstances which show no exploitation of the illegality. State v. Baker, La., 338 So.2d 1372 (1976); State v. Cox, La., 330 So.2d 284 (1976).”

Here, admittedly, the consent was obtained from the defendant immediately subsequent to an illegal arrest — illegal since based solely upon a warrantless search of his vehicle, without probable cause and over his objection.

In these circumstances, in determining whether evidence should be suppressed, the issue is whether the defendant’s post-arrest act (here, his consent) was the product of his free will rather than the result of an exploitation of his illegal arrest. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In deciding this issue, the court should take into account not only whether the governmental officers adequately informed the accused that he need not comply with their request, but also the temporal proximity between the arrest and the act (consent) alleged to be coerced, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Brown v. Illinois, at 422 U.S. 603-04, 95 S.Ct. 2261-62.

By virtually all these tests, the present “consent” to the residence search was coerced from the accused by the arresting officers’ exploitation of the illegal arrest immediately preceding. The arrest itself was based upon a warrantless search of his .vehicle without probable cause and in flagrant violation of constitutional prohibitions against such searches or seizures of an individual’s person or property.

So far as the record shows, the state had no more probable cause to search the accused’s house than it did to search his vehicle. Yet the officers informed the accused, immediately after his arrest, that he might as well consent because they could secure a search warrant anyway within twenty minutes.

Considering also that the defendant had just a minute or so earlier been arrested and subjected to a flagrantly unconstitutional search-of his vehicle by these same officers, we think that the uncontradicted evidence clearly shows that the defendant’s “consent” for the officers to search his residence was coerced through their exploitation of the immediately preceding illegal arrest and unconstitutional search of his vehicle.

In holding the consent valid, the trial court erred by failing to consider the factors relating to the exploitation of the illegal arrest, as well as by incorrectly placing upon the accused the burden of showing the illegality of the warrantless search. This is thus not an instance where the question of consent is an issue of fact primarily depending upon an evaluation of the credibility of witnesses, in review of which the trial court’s determination is entitled to great weight upon review. State v. Dunbar, 356 So.2d 956 (La.1978). Rather, it is an instance where the trial court committed an error of law by not applying the appropriate legal principles to essentially uncon-tradicted testimony.

Accordingly, the conviction and sentence are reversed, and the case is remanded for a new trial in accordance with law.

CONVICTION REVERSED, CASE REMANDED FOR A NEW TRIAL.

SANDERS, C. J., and MARCUS, J., dissent.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

Charged that he possessed marijuana with intent to distribute, George M. Mitchell pled guilty on the basis of a plea bargain in which he reserved the right to appeal the court’s ruling denying his motion to suppress. On the guilty plea Mitchell was sentenced to serve eleven months at hard labor, the sentence being suspended and he was placed on three years’ active probation, on condition that he serve three months in jail. He appeals on the ground that the trial judge erred in denying his motion to suppress.

On May 5, 1977 Mitchell was driving to the Barksdale Air Force Base where he worked. When he was within one-half block of the entrance to the base he was stopped by two officers of the Bossier City Police. After stopping him the police advised Mitchell that they suspected that he had a large amount of marijuana in his vehicle; whereupon Mitchell asked if they had a search warrant and told them he wanted to see his lawyer. The police then searched his automobile while Mitchell was made to stand at the front of the vehicle. They found two marijuana “roaches”. Mitchell was then advised of his rights and placed under arrest.

Thereafter the police told Mitchell “you might as well take us to your house so we can find the other stuff we are looking for.” Again Mitchell asked the officers to see their search warrant. They had no warrant but they told Mitchell it wouldn’t take long to get one — twenty minutes. The police also said at that time that they had called to have his vehicle picked up and impounded. When they asked him if he objected if they searched his vehicle and asked him to sign the permission to search form, he agreed realizing they would get the search warrant “anyway”. The consent to search included the right to search his automobile and apartment.

One of the officers then drove with Mitchell while the other officer followed in another car to Mitchell’s apartment. There a search was conducted of the apartment in Mitchell’s presence and a quantity of marijuana was found and seized.

Before his guilty plea Mitchell filed a motion to suppress in which he alleged that the search and seizure were unreasonable and in violation of the Fourth and Fourteenth Amendments to the United States Constitution and the Louisiana Constitution. The pertinent ground of that motion alleged that defendant’s valid consent to this search was not obtained.

The facts recited are derived from the testimony of Mitchell who was the sole witness at the motion to suppress. After hearing this evidence the trial judge observed that he was concerned with the motion to suppress as it related to the quantity of marijuana obtained by the police as a result of the search of Mitchell’s apartment, agreeing that the search of Mitchell’s automobile and seizure of the roaches there was invalid. In ruling on the validity of the search of the apartment and addressing the issue of the validity of the written permission to consent, he said:

“Now, he has not attacked the validity of this Permission to Search — the defendant himself has not attacked that nor did he indicate that he was forced to sign it in any manner. He did merely state that the officers said that they could get a search warrant. The motion to suppress is overruled.”

Because he had the opportunity to observe the only witness who testified on the motion to suppress, the witness’ demeanor and credibility would be of extreme importance to a full understanding of his testimony. In State v. Dunbar, 356 So.2d 956 (La.1978), this Court, recognizing the great weight to be accorded the decision of the trial judge on the issue of consent to a search, set forth the standards to be observed on appellate review:

“Questions of consent are issues of fact, dealing as they do with witness credibility. The determination of a trial judge, who has the opportunity to hear and observe the witnesses, is entitled to great weight on review. The fact that a person was not warned of his or her rights to refuse entry, while a significant factor in determining whether consent was given, is only one factor in determining the voluntary nature of consent. Under the circumstances of this case, we cannot say that the trial judge erred in finding that the state had carried its burden of showing that the entry fell upon the exception to the warrant requirement which allows a lawful search without a warrant on proper consent.”

And it is not correct to say that a consent to search is invalid if it is obtained while the party giving consent is under arrest. Here, before he signed the consent form, Mitchell was advised of his rights. This means he was given the Miranda warnings. Although not introduced in evidence at the suppression hearing according to the transcript, both the Miranda warning and permission to search forms, signed by Mitchell, were filed in the record on the day of the hearing. In State v. Andrus, 250 La. 765, 199 So.2d 867 (1967), this Court, relying upon a number of decisions from diverse jurisdictions held that the fact that the consent was given while the defendant was under arrest does not itself render the consent involuntary.

This record does not support a finding that the trial judge committed reversible error. There is no intimation in this record that the police sought to intimidate, coerce or force Mitchell to consent. It is true that they did point out to him that they could get a search warrant in a short time if he did not sign, but this did not render his consent involuntary. Mitchell, from this record, appeared knowledgeable and was aware of his rights under the circumstances. It is apparent that he simply reconciled himself to the fact that if he didn’t consent the warrant would be obtained “anyway”, a purely voluntary and rational decision.

I would uphold the finding of the trial judge that Mitchell’s consent was voluntary.


text:
    STATE of Louisiana v. Bruce W. SHANNON.
    No. 61516.
    Supreme Court of Louisiana.
    June 30, 1978.
    Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Bruce W. Shannon was charged by bill of information with the crime of attempted second degree murder. La.R.S. 14:27; La. R.S. 14:30.1. After trial by jury, he was found guilty as charged and was sentenced to serve forty years at hard labor. Credit was given toward service of his sentence for time spent in actual custody prior to imposition of sentence. On defendant’s timely filed motion, the trial judge ordered an appeal. La.Code Crim.P. art. 916 provides that the jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal, and thereafter the trial court has no jurisdiction over the matter except for certain listed actions not applicable here.

After the trial judge had ordered an appeal, defendant timely filed in the trial court, pursuant to La.Code Crim.P. art. 851(3), a motion for a new trial based upon allegations of new and material evidence that, notwithstanding the exercise of reasonable diligence by defendant, was not discovered before or during trial, which evidence, if available, allegedly would probably have changed the verdict of guilty.

La.Code Crim.P. art. 853 provides in pertinent part:

When the motion for a new trial is based on ground (3) of Article 851, the motion may be filed within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed; but if an appeal is pending the court may hear the motion only on remand of the case. (Emphasis added.)

In accordance with the above provision, we remand the case to the trial court for a hearing on defendant’s motion for a new trial. State v. Perry, 351 So.2d 1201 (La.1977); State v. Bradford, 275 So.2d 407 (La.1973).

It is ordered that the case be remanded to the trial court for a hearing on defendant’s motion for a new trial.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. John DOMINO.
    No. 61690.
    Supreme Court of Louisiana.
    June 30, 1978.
    Harold Douglas, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Howat A. Peters, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

On September 17, 1975, defendant John Domino was indicted for the crime of distribution of heroin, a violation of La.R.S. 40:966. On November 22, 1976, defendant was tried before a twelve person jury which found him guilty as charged. Thereafter, the trial court sentenced him to serve life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On appeal defendant urges four (4) assignments of error.

We have reviewed defendant’s assignments of error and find them to be without merit. However, we note ex proprio motu, that the sentence imposed by the trial court is improper. See La.C.Cr.P. art. 920(2); State v. Jones, 341 So.2d 3 (La.1976). At the time the subject offense was committed, La.R.S. 40:966(B)(1) provided that a person convicted of distribution of heroin should be “sentenced to life imprisonment at hard labor and, in addition, [could] be required to pay a fine of not more than Fifteen Thousand Dollars.” La.R.S. 40:966(B)(1), as amended by acts 1973, No. 207, § 3. Consequently, the trial court erred in qualifying defendant’s sentence of life imprisonment by the language “without benefit of parole, probation or suspension of sentence.”

Accordingly, defendant’s conviction is affirmed, but the case is remanded for resen-tencing in accordance with law.

REVERSED AND REMANDED.


author: CALOGERO, Justice.

text:
    Sherman A. BERNARD, Ancillary Receiver, Mobile Insurance Company in Receivership v. BRINKLEY & WEST, INCORPORATED.
    No. 61737.
    Supreme Court of Louisiana.
    June 30, 1978.
    Raymond C. Vinet, Sr., Baton Rouge, for plaintiff-applicant.
    Clarence F. Favret, Jr., Favret, Favret & Demarest, New Orleans, for defendant-respondent.
   CALOGERO, Justice.

In this litigation Sherman A. Bernard, Insurance Commissioner for the State of Louisiana and Ancillary Receiver in Louisiana of Mobile Insurance Company seeks to collect approximately $300,000 from defendant, a Louisiana corporation. The sum purportedly represents unpaid accounts for premiums on policies sold and issued to the defendant agency for Mobile Insurance Company and commissions on premiums unearned by virtue of court ordered cancellation of insurance policies written by Mobile Insurance Company.

Neither the facts of the case nor the relationship of Mobile Insurance Company to Brinkley & West, Incorporated and other companies is entirely clear from the record as it was made up in the district court. Nonetheless, it appears that Mobile is a Texas insurance company engaged in writing insurance policies for physical damage arid liability on mobile homes, motor homes and travel trailer businesses. The general agent for Mobile Insurance Company, Mclngvale & Associates General Agency, Inc. also a Texas corporation, entered contracts with several Louisiana sub-agents, one of which was Brinkley & West, Inc. Under these contracts, sub-agents were to place insurance policies with Mobile Insurance Company through Mclngvale, the general agent. Brinkley & West, Inc., a licensed surplus line broker in Louisiana, wrote policies on Mobile Insurance Company through the general agent, Mclngvale.

Mobile Insurance Company was placed in receivership in the State of Texas and all policies by it were cancelled. Mr. Herbert Crook of the Texas Insurance Department was named Liquidator of the Mobile Insurance Company, and he commissioned plaintiff Bernard ancillary receiver for the Mobile Insurance Company in the State of Louisiana. Plaintiff thereupon filed the instant suit in the Civil District Court for the Parish of Orleans.

Although the pleadings in the district court did not reflect it, Mclngvale & Associates General Agency, Inc., purported owner of Mobile Insurance Company, was apparently placed in bankruptcy in proceedings No. BK3-75-698F in the United States District Court for the northern district of Texas, Dallas Division. In that proceeding there was entered an “order authorizing compromise of controversy” by which the receiver of the bankrupt, Mclngvale, was directed to compromise a controversy with Herbert Crook, receiver for the Mobile Insurance Company “by abandonment of all accounts receivable owing to the bankrupt by the bankrupt’s field and sub-agents, both in the State of Texas or any other state . ” The effect of that order on this litigation and whether it authorizes or commissions the liquidator for Mobile Insurance Company to pursue claims owed to Mclng-vale in Louisiana have not been resolved in the proceedings below. That order was not alluded to, made part of the record, nor introduced and filed in evidence in the district court.

To plaintiff’s petition the defendant filed exceptions of no cause of action, no right of action and non-joinder of an indispensable party. On the strength of the record in the district court which did not contain a copy of the bankruptcy order mentioned above, the trial court maintained all three exceptions and allowed plaintiff thirty days to amend and join in the litigation Mclng-vale & Associates General Agency, Inc.

Plaintiff thereupon sought and was denied writs in the Fourth Circuit Court of Appeal.

The thrust of the court’s three-fold ruling was that the general agent with whom defendant contracted was to be brought into the proceedings before the litigation could go forward.

Plaintiff’s principal concern, as expressed in the application for writs to this Court (and which in some measure prompted our granting the writ), is that if this Court refused to grant the writ and reverse the trial court’s ruling, plaintiff would be foreclosed from making timely amendment to his petition as directed by the trial court because of his failure to appeal from the trial court’s ruling.

Defendant’s position is simply that Mclngvale & Associates General Agency, Inc. (or its successor, transferee, or assignee as duly shown by proof of record in this lawsuit) be made party to the litigation before plaintiff should be allowed to go forward and litigate the claim against defendant.

Under the circumstances we find it unnecessary to treat more extensively the respective exceptions and court rulings below. Nor do we find it necessary to reverse the trial court’s rulings. Simply remanding the case to the district court to allow within fifteen days of finality of this judgment an amending of the pleadings and/or joining of additional parties as deemed necessary, will afford plaintiff the relief sought and an opportunity to have his day in court.

Decree

For the foregoing reasons the rulings of the trial court are affirmed. The ease is remanded for plaintiff to be given an opportunity within fifteen days of finality of this judgment to amend his pleadings and/or join additional parties.

DISTRICT COURT JUDGMENT AFFIRMED, CASE REMANDED.

DIXON, J., dissents.

This is an incorrect interpretation of the petition. Mclngvale is neither a necessary nor an indispensable party and the plaintiff is entitled to judgment if he proves his allegations.

      . Actually the plea was an exception of non-joinder of a necessary party, but at the hearing on the exception at the prompting of the trial judge counsel for defendant amended the exception to designate it nonjoinder of indispensable party.

      . On oral argument, the attorney for the plaintiff stated that he offered the order as an exhibit, but it was not admitted nor filed. It does not, therefore, appear in the record.


text:
    STATE of Louisiana v. Clifton SEARS.
    No. 61741.
    Supreme Court of Louisiana.
    June 30, 1978.
    Maurice T. Hattier, 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., Vincent Paciera, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Rennell GIBBS.
    No. 61553.
    Supreme Court of Louisiana.
    June 30, 1978.
    Michael S. Fawer, Matthew H. Green-baum, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STANDARD COMPANY OF NEW ORLEANS, INC. v. ELLIOTT CONSTRUCTION CO., INC. et al. ELLIOTT CONSTRUCTION CO., INC. et al. v. DIV. OF ADMINISTRATION, State of Louisiana, Legal Successor to the Capital Outlay Budget Board, thru Department of Facility Planning and Control.
    No. 61822.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Elliott Construction Co., Inc. et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 224.

Writ granted.

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


author: TATE, J.,

text:
    S. E. LEE, Jr. v. Doris Armstrong KINCAID et al.
    No. 62315.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Doris Armstrong Kincaid applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Franklin. 359 So.2d 232.

Writ denied.

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

TATE, J.,

concurs. The incapacity of a witness under C.C. art. 1592 (when the witness renounces the legacy before the will is probated) is not such a formality as will make the testatment null and void, C.C. art. 1593, such as is the competency of a witness under C.C. arts. 1578, 1581, 1591.


text:
    Runyon C. RICHARD v. Barbara Price RICHARD.
    No. 62369.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Barbara Price Richard applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 696.

Writ denied.


text:
    Gordon WILKINSON v. Charles VICCINELLI et al.
    No. 62362.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: C. Viccinelli, L. Ropollo & Bituminous Casualty Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 634.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    Emmett C. ALLEN, Sr., et ux. v. HUMBLE OIL & REFINING COMPANY.
    No. 62366.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Emmett C. Allen, Sr. & Mrs. Alice Allen, etc., et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston. 359 So.2d 218.

Writ denied.


text:
    Willie H. BOYKIN, Jr., Norman Washington, Clarice Lipkins and Earl Lewing v. DeSOTO PARISH POLICE JURY, James Lynn Davis (District Attorney for 11th Judicial District) and Roy D. Webb (Sheriff for DeSoto Parish).
    No. 62338.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Willie H. Boykin, Jr., et al. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of DeSoto. 359 So.2d 239.

Writ denied.


text:
    Honorable Daniel W. RICHEY v. LOUISIANA PUBLIC FACILITIES AUTHORITY, First Development Corp. and the State of Louisiana.
    No. 62483.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: La. Public Facilities Authority applying for writ of injunction and supervisory writs of prohibition and mandamus. Parish of East Baton Rouge.

Writ denied. Petitioner must first exhaust its remedies in the lower courts.


text:
    STATE of Louisiana v. Rodney O. EAKER and Patricia Branch.
    No. 62473.
    Supreme Court of Louisiana.
    June 19, 1978.
   In re: Patricia Branch, applying for writs of certiorari. Parish of Ouachita.

Writ denied.


text:
    STATE of Louisiana v. Jacqueline Polk NETTLES.
    No. 62504.
    Supreme Court of Louisiana.
    June 21, 1978.
   In re: Jacqueline Polk Nettles, applying for supervisory writs, and stay order. Parish of East Baton Rouge.

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

DIXON and DENNIS, JJ., dissent.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. James JOHNSON, Thomas Lee Cardwell, Jerry J. Trent, Roger Goff, Joseph A. Fitch, Danny Ryan, Earl Spencer, Stacy J. Boudreaux, Kenneth J. Vandervort, Billie Dean Spradlin, Stephen A. Anderson, Junior J. Barrett, and Jack Nichols.
    No. 62505.
    Supreme Court of Louisiana.
    June 22, 1978.
   In re: James Johnson, et al., applying for writs of certiorari, prohibition, and mandamus.

Bond reduced.

IT IS ORDERED that the amount of bail be reduced in the following cases to the amounts indicated:

James Johnson $40,000.
Thos. Lee Caldwell 75,000.
Jerry J. Trent 75,000.
Roger Goff 75,000.
Joseph A. Fitch 25,000.
Danny Ryan 40,000.
Earl Spencer 50,000.
Stacy J. Boudreaux 25,000.
Kenneth F. Vandervort 40,000.
Billie Dean Spradlin 40,000.
Stephen A. Anderson 75,000.
Junior L. Barrett 50,000.
Jack Nichols 75,000.

SUMMERS, J.,

is of the opinion that the bond should not be reduced because the trial judge did not abuse his discretion.


text:
    STATE of Louisiana v. Gerald HATCHER.
    No. 62516.
    Supreme Court of Louisiana.
    June 23, 1978.
   In re: Gerald Hatcher applying for supervisory writs and stay order. Parish of Orleans.

Writ granted in part, denied in part. Without affording grounds for delay in this scheduled trial the state is ordered to answer question number 5 of motion for bill of particulars. In all other respects, the application is denied. Adequate remedy by review in the event of conviction.

SUMMERS, J.,

dissents. The accused is not entitled to the State’s evidence by a motion for particulars in advance of trial.


text:
    STATE of Louisiana v. William S. JOHNSON.
    No. 62387.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: William S. Johnson applying for writs of certiorari and review and stay order. Orleans Parish.

Writ granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Matthew S. Braniff, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 14th day of July, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court on the 12th day of September, 1978, 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. Jimmy J. RODRIGUE.
    No. 62567.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Jimmy J. Rodrigue, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Jefferson.

Writ granted. The order of the District Court cancelling the bond is reversed and annulled; the bond is reinstated and the defendant is ordered released from the Jefferson Parish prison on his original bond.


author: TATE, CALOGERO, JJ.,

text:
    STATE of Louisiana v. Angelo FAZZIO.
    No. 62407.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Angelo Fazzio applying for writs of certiorari, prohibition, review, mandamus and for a stay order. Parish of St. Tammany-

Writ denied.

TATE, CALOGERO, JJ.,

concur, believing that if the State attempts to call Cayton, Langford or Peyton to testify, it must under Davis v. Alaska and Brady furnish information of the nature sought which is readily accessible to it.


author: DIXON, J., TATE, J.,

text:
    STATE of Louisiana ex rel. John FELTUS v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62498.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: John Feltus applying for writ of certiorari. Parish of Orleans.

Denied.

DIXON, J.,

would grant an out-of-time appeal. But at the very least, he is entitled to an evidentiary hearing to determine whether he told his lawyer that he wanted to appeal. See Rule 27, Sec. 6, Rules of La. Supreme Court.

CALOGERO and DENNIS, JJ., would grant an evidentiary hearing.

TATE, J.,

concurs in the denial, for the reasons stated by the trial judge, and upon the basis of the trial judge’s instructions at the time of sentencing and of the affidavit by the relator’s attorney. See La. Supreme Court Rule 27, Section 5(a).


author: STOULIG, Judge. REDMANN, Judge, LEMMON, Judge,

text:
    Charles CASNAVE v. RITTNER ENGINEERING COMPANY.
    No. 9024.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied July 26, 1978.
    Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellant.
    Francipane, Regan & St. Pee’ Wayne H. Scheuermann, New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON, STOUL-IG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Charles Casnave, has appealed a judgment dismissing his suit for maximum workmen’s compensation benefits for an industrial accident in which he allegedly aggravated a pre-existing back problem that has left him totally and permanently disabled. We affirm.

Plaintiff’s medical history discloses about 12 years prior to this alleged incident, he had lumbar disc surgery. On October 17, 1975, plaintiff received a compromise compensation settlement of $13,640 plus medical of $1,534.26 for a back injury allegedly incurred when he was working for Broad-moor Corporation. On September 22, 1976 plaintiff allegedly sustained an injury to his back while in the employ of defendant, Rittner Engineering Company. The accident was alleged to have occurred when plaintiff was straightening an iron rod on a concrete form.

In reasons dictated in the record the trial judge concluded the plaintiff failed to prove that the admitted back disability became permanently worsened by the alleged accident. The trial judge indicated plaintiff’s testimony was insufficient to carry the burden. This determination reflects the trial court’s evaluation of the credibility and the probative value of plaintiff’s testimony.

Appellant relies on those cases that hold a plaintiff’s testimony alone is sufficient to establish an accident occurred. Brister v. Great American Insurance Company, 171 So.2d 769 (La.App. 3d Cir. 1965). But in such cases the credibility of the plaintiff cannot be questionable.

Appellant’s testimony that he had fully recovered from all previous back insults and was able to perform strenuous labor without ill effects prior to the alleged accident is not supported by the medical testimony. He testified that Dr. Daniel Sinclair, an orthopedist, either stated or implied that plaintiff was fit to perform heavy labor three months before he accepted employment with defendant, Rittner Engineering Company. Dr. Sinclair denied this and testified that during his treatment of the plaintiff for the Broadmoor accident from November 13, 1974 through September 1975 he did not give plaintiff any advice other than to stay away from heavy manual labor and to seek rehabilitation for a different type of employment.

During the course of his testimony Dr. Sinclair confirmed that plaintiff did have a back problem but his examination of plaintiff’s back after the Rittner accident revealed that it was in a better condition than after the Broadmoor incident. The substance of Dr. Sinclair’s testimony is that if in fact there was an accident plaintiff had fully recovered from its ill effects. The record establishes plaintiff received compensation during the period he possibly could have suffered temporary disability.

Plaintiff’s credibility is in doubt and his entire case hinges on it. The medical findings that support disability from a September 1976 accident are based solely on the history he gives. The evidence confirms the wisdom of the trial court in resolving the issue of credibility against plaintiff.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., concurs with written reasons.

LEMMON, J., dissents with written reasons.

REDMANN, Judge,

concurring.

The accident sued upon left plaintiff, as the only immediately post-accident medical evidence shows, with “muscle spasm”, “objective evidence of recent injury”, “probably an acute herniation of nucleus pulpo-sus”. This injury totally disabled him to do the work he had in fact been doing although doctors thought he should not or could not. However, plaintiff recovered from that accident to the level of his pre-ac-cident physical condition, and therefore his disability attributable to that accident had disappeared, as believable medical advice informed defendant, prior to the stoppage of compensation payments.

LEMMON, Judge,

dissenting.

The trial court erred as a matter of law in holding that plaintiff had not proved the occurrence of an accident. Defendant’s supervisor admitted he received a report of an accident from plaintiff and another employee, and the company doctor immediately thereafter found objective evidence of “recent” injury consistent with that described by plaintiff.

The more difficult issue is the disability determination, especially defendant’s contention that plaintiff was already disabled prior to the September, 1976 accident.

After the September, 1974 accident, plaintiff was treated by Dr. Sinclair, who advised plaintiff against returning to heavy labor. However, Dr. Sinclair did not see plaintiff between September, 1975 and the accident one year later. Since plaintiff sought no further medical treatment from any other doctor, there is no medical evidence as to his condition in September, 1976.

A significant consideration as to plaintiff’s condition in September, 1976 is the fact that he worked for defendant as a laborer at $6.81 per hour for a period of perhaps two months (the period stated by defendant in Exhibit P-2, although other evidence shows three weeks), since it is highly unlikely defendant would pay those wages to someone who is incapable of performing laboring work. Inasmuch as plaintiff did in fact engage in heavy manual labor for several weeks prior to September 22, 1976 and could no longer do so immediately after the accident, I would hold that he has proved total and permanent disability resulting from that accident. When an occupational injury brings about disability from a latent prior condition (even one resulting from a previous occupational injury), the entire disability is compensable, in the absence of statutory provisions for apportionment or for second injury funds.

      . The trial judge stated: “All of the elements are present, except, the Court feels that the plaintiff has failed to carry the burden of proof that he, as a matter of fact, was injured on the job or, that there was an aggravation of that injury on the job.”

      . Dr. Sinclair did not discharge plaintiff from further treatment in September 1975. Plaintiff failed to return for further treatment.

      . Dr. Sinclair’s statement that plaintiffs condition in November, 1976 was approximately equal to that at the last visit in September, 1975 is not conclusive of plaintiffs condition at the time of the accident one year after the last visit.


author: SCHOTT, Judge.

text:
    Raymond EDLER v. Joyce MURRAY.
    No. 9269.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied July 26, 1978.
    Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for defendant-appellant.
    Philip J. Boudousque, New Orleans, for plaintiff-appellee.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

This is an appeal by the mother from a judgment which increased child support for her ten year old son from $32 to $40 per week and rearranged the visitation rights of the father. The parties have been long divorced.

Prior to the proceedings which are now before us, the parties have been operating with respect to visitation pursuant to a judgment of June 3, 1975, which set up week-end visitations for the father on a three week cycle period. In the first week end of the cycle he was allowed to visit the child from Saturday morning through Sunday afternoon, in the second week for three hours on Friday afternoon and in the third week day time on Saturday or Sunday, depending upon his schedule at work as a fireman. Additionally, he was allowed ten days with his son during vacation and various holidays, alternating from year to year. In 1974 support for the child had been set at $32 per week (in accord with voluntary support in that amount since 1968). The mother brought a rule to decrease visitation and to increase the amount of support.

In the judgment appealed from the trial judge simply amended the earlier judgment on visitation by specifying the times for visits during the three-week cycles and the times for holiday visits, and by adding one holiday to the list. He left unchanged the ten days’ visit during vacation.

In this court, the mother’s principal contentions are that she is entitled to a more substantial increase in child support and that the schedule of visitation constitutes divided custody, which is detrimental to the child’s welfare and inconsistent with the law. She also specifies error in the trial court’s exclusion of proffered expert testimony of a counselor and his failure to make the increase in child support retroactive to the date of judicial demand.

With respect to the last two specifications of error, in Vinson v. Vinson, 292 So.2d 763 (La.App. 4th Cir. 1974), we held that the effective date of the reduction of alimony and child support falls within the discretion of the trial judge. Similarly, the effective date of the increase in child support awarded to appellant is within that discretion. As to the trial judge’s exclusion of the proffered expert testimony, we held in Catalanotto v. Hebert, 347 So.2d 301 (La.App. 4th Cir. 1977), that the determination of who shall testify as an expert is also a matter within the sound discretion of the trial judge. In the instant case, the expert was a graduate student employed as a counselor at the East Jefferson Mental Health Center. In refusing to accept him as an expert entitled to express opinions as to the effect of the custody arrangement on the welfare of the child, the trial judge acknowledges that he might be outstanding as a counselor but he was not a psychologist or a psychiatrist and was no more than a student who gives counseling advice. We cannot say that the trial judge abused his discretion in refusing to accept this witness as an expert.

In support of her claim for increase in the amount of child support the mother offered a schedule of expenses she incurs in the child’s behalf, and in response the father offered a schedule of expenses which he incurs. As usual, the accuracy and reliability of these figures are debatable and good arguments were made on both sides of the question. The burden of proof was on the mother to prove a change in the circumstances in order to justify an award, Ducote v. Ducote, 339 So.2d 835 (La.1976), and her evidence on this point was not persuasive. In the final analysis the modest increase given by the trial judge was entirely within his discretion and will not be disturbed by us. de Boisblanc v. de Boisblanc, 337 So.2d 573 (La.App. 4th Cir. 1976) writ denied, La., 340 So.2d 994.

The mother’s argument that the father in this case has been given excessive visitation is based on the jurisprudence which has equated excessive visitation rights with divided custody between the parents. Newson v. Newson, 176 La. 694, 146 So. 472 (1933). However, we were confronted with a similar argument in the case of Johnson v. Johnson, 357 So.2d 69 (La.App., decided March 14, 1978), and we concluded there as we do now that this particular judgment on visitation was within the wide discretion afforded to the trial judge in fixing visitation rights. See Tarter v. Vinet, 184 So.2d 33 (La.App. 4th Cir. 1966); Doherty v. Mertens, 326 So.2d 405 (La.App. 3rd Cir. 1976).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: FORET, Judge. WATSON, Judge,

text:
    John W. McMANUS d/b/a LeBonheur, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6406.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Rehearing Denied July 5, 1978.
    Voorhies & Labbe, H. Lee Leonard and Marc W. Judice, Lafayette, for plaintiff-appellant.
    Pugh & Boudreaux, Charles J. Bou-dreaux, Lafayette, for defendants-appel-lees.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

John W. McManus, plaintiff, has appealed a judgment which denied him penalties and attorney’s fees against defendants, Travelers Insurance Company and Charter Oak Fire Insurance Company. Charter Oak, a member of the Travelers Group and the real party-defendant at interest, answered the appeal, contending that the judgment awarded McManus recovery for items not covered under the policy.

The issues on appeal are:

(1) whether McManus was entitled to recover for certain items under the terms and conditions of the fire insurance policy issued by Charter Oak;
(2) whether Charter Oak was arbitrary and unreasonable in failing to pay McManus for the items found to be covered by the trial court; and
(3) whether McManus wás entitled to other damages due to Charter Oak’s failure to pay the entire claim.

The facts in summary are that McManus leased a building from All American Assurance Company beginning on September 1, 1974, for the purpose of going into the restaurant business. The lease gave McMa-nus a period of four months rent-free in which to make improvements and alterations of the premises and the lease was to run thereafter for a period of seven years. The lease provided that, at termination, McManus could remove only fixtures which had not become immovable and specifically that he could not remove any portion of the air conditioning, heating, plumbing, electrical, water or other systems or installations in the premises. (Tr., pg. 55).

McManus undertook extensive improvement and “betterments” to the building and purchased from defendant, Charter Oak, a policy of property and general liability insurance (Tr., 17, et seq., P-2). By its terms the policy insured McManus’ personal property on the restaurant premises in the amount of $100,000 against various risks including “. . . direct loss by (1) Fire ... . ” (Tr., 30). Specified as covered under coverage B which McManus obtained was:

“(a) personal property, including equipment, fixtures, furniture, machinery, signs and supplies, allowed by the Named Insured; * * *
“(c) tenant’s improvements and better-ments, meaning the Named Insured’s use interest in fixtures, alterations, installations or additions comprising a part of the building occupied but not owned by the Named Insured and made or acquired at the expense of the Named Insured exclusive of rent paid by the Named Insured, but which are not legally subject to removal by him.” (Tr., 33).

On April 1, 1975, a fire occurred at Le-Bonheur Restaurant which destroyed part but not all of the building and part but not all of McManus’ personal property located on the premises. Smoke, soot and water used to fight the fire caused additional damage. Defendants’ claim representative, one Terry Langley, undertook to adjust the fire loss. There were apparently many conferences between McManus and Langley with McManus submitting to Langley various invoices, estimates, bills, receipts, and other documents in an attempt to substantiate the value of his claim. It is undisputed that McManus submitted an adequate proof of loss; he claimed a total of $76,460. The premises were not repaired since McManus chose not to re-establish his restaurant. His claim was for items destroyed or damaged and for loss of use of various improvements or betterments not destroyed or damaged.

The adjuster for defendant eventually allowed $50,440.40 of McManus’ claim but refused to pay the balance. Thereafter, McManus filed suit, contending that he was entitled to an additional sum of $25,560 and that the failure of defendants to pay was arbitrary, capricious, and without probable cause, entitling him to penalties and attorney’s fees.

In addition, plaintiff sued for various other damages as the result of the refusal to pay, including interest on debts, damage to credit rating, mental anguish and the like. Plaintiff has established no legal basis for these other items of damages which were correctly disallowed by the trial court.

Following trial on the merits, a judgment was entered holding that plaintiff was entitled to an additional $22,792.42 for loss under his fire policy. The items allowed were as follows:

“1. Upstairs Construction Work $ 964.31
2. Don Bushnell 7,907.26
3. Reynaud Interior 3,031.16
4. Menus none
5. Guest Checks none
6. Steven’s Brothers Painting Co. ' 583.39
7. Lewis Sign Company none
8. Guidry Iron Works 517.89
9. Safeway Air Conditioning 654.40
10. Joseph Carpentry Works 2,263.66
11. Storage of Furniture 400.00
12. Downstairs Reconditioning 1,571.78
13. Plumbing 4,898.57
TOTAL $22,792.42” (Tr.,259)

The figures above are principally the “use interest” calculated by the trial court by allowing S1/84ths of the various claims of McManus found to have merit. The 81/s4ths fraction represents the number of months left of the total lease.

As to the award by the trial court, the somewhat complex record reflects that there is a reasonable evidentiary basis to establish the amounts awarded.

We will briefly review the various disputed items.

ITEM 1. UPSTAIRS CONSTRUCTION WORK

The insured furnished information to the adjuster to the effect that he and an employee, whose salaries were each $700 a month, had performed work for a period slightly in excess of one month in making the upstairs portion of the building suitable for restaurant purposes, this including building partitions for offices and a waitresses’ lounge. The adjuster allowed $400, less $14.29 depreciation. The claim was for $1400. At trial the work was fully confirmed by the interior decorator, Bushnell, and the trial court had no difficulty in allowing the claim.

ITEM 2. DESIGN AND SUPERVISION FEE

This item was the $8,200 fee paid by McManus to Don Bushnell who designed and supervised the construction of the restaurant.

Adjuster Langley testified that:. “. . .1 did not feel that we owed this.” (Tr., 287). Bushnell and others gave extensive testimony establishing the validity of the claim. It was a specific cost that had been incurred by McManus in making “improvements and betterments” as that term is used in the policy.

ITEM 3. REYNAUD INTERIORS ESTIMATE

This portion of the claim was based on an actual estimate made following the fire by Reynaud Interiors covering many items damaged or destroyed in the fire. It differs from some of the other claims in that it relates in part specifically to items physically damaged or destroyed. Certain draperies were destroyed, valued at $1,704.67. When added to small amounts claimed for chairs, sofas and tables burned, the total was $1,945.09. In addition to the items in the estimate actually destroyed, certain tenant improvements were included which would be considered on a loss of use basis. These included wallpaper repair, carpet repair and general cleanup. These additional items were adjusted on a use basis by the trial court to the figure of $1,850.46. Only $764.89 of Item 3 was paid by the insurer, leaving an unpaid claim on the Reynaud Interiors estimate of $3,031.16. No specific reason was given for non-payment by the insurer. The adjuster was furnished with Reynaud’s estimate, which, as noted, was prepared after the fire.

ITEMS 4, 6, & 7. MENUS, GUEST CHECKS AND SIGN

The trial court found the insurer paid the proper amount on small claims for these items.

ITEM 6. PAINTING

The insurer did not allow the full amount for loss of use of the improvement to the building by painting. The reason advanced was that the paint was not damaged on certain walls of the building. The trial court found a balance due of $583.39. This item was clearly due as a loss of use under the policy.

ITEM 8. GUIDRY IRON WORKS

We will quote the trial court as follows: “This item consists of a gate which is closed at night in order to protect the patio furniture which belongs to LeBonh-eur. The Court considers this item to be a tenant’s improvement in that it is permanently attached to the building. The adjustment should have been made according to plaintiff’s ‘use interest’. Accordingly, the defendant owes the following amount:
Original Cost $ 537.23
Use interest remaining 517.89”
(Tr., 257).

ITEM 9. SAFEWAY AIR CONDITIONING

The insurer allowed the claim as to all wiring and electrical work actually burned in the fire but the trial court awarded the total value of the electrical improvements to plaintiff because he had lost the use of the building. In addition, the trial court noted there was evidence from expert witnesses that there was a strong likelihood that all of the wiring was damaged and that no reputable electrician would use the remaining wire.- An additional $654 was allowed by the trial court.

ITEM 10. JOSEPH’S CARPENTRY WORKS

The claim here was principally the cost of two bars which had been built into the building when the restaurant was established. The bars were permanently installed and could not be removed without destroying their value. It was also shown that they were physically damaged by water used to fight the fire. A fire insurer has for many years been held responsible for loss occasioned by water damage during the course of fighting a fire. Gcisek v. Crescent Mat. Ins. Co., 19 La.Ann. 297 (1867). There was some evidence that if the entire premises could have been cleaned-the next day and the bars dried out, much of their value could have been saved, but as the adjuster admitted, that would have been an impossibility. (Tr., 319). $2,263.66 was allowed by the trial court.

ITEM 11. STORAGE OF FURNITURE

Although the trial judge allowed $400 more than the insurer on this item, there is no substantial evidence that the insurer was unreasonable. Accordingly, the failure to pay cannot be said to be arbitrary.

ITEM 12. DOWNSTAIRS RECONDITIONING

The adjuster Langley thought that this was a duplication, and while the trial judge found to the contrary, the record does not establish that the insurer was arbitrary in disallowing payment of this item.

ITEM IS. PLUMBING

Only a portion of the plumbing installed by McManus to operate his restaurant was destroyed by the fire. However, the balance was imbedded in the concrete slab and could not be removed under the terms of the lease. Therefore, the allowance for the plumbing falls into the loss of use category. As the trial court observed:

“Some of this was damaged by the fire, but the use of the entire amount has been lost to Mr. McManus because the building has to be considered a total loss.” (Tr., 258).

Counsel for defendant argues very forcefully that only items which were physically burned and destroyed were covered by the policy and refusal to pay other claims was not arbitrary and capricious. However, the well-established law of Louisiana is that a loss from fire or windstorm means essentially the same as “proximate cause” applied in negligence cases. Lorio v. Aetna Ins. Co., 255 La. 721, 232 So.2d 490 (1970); Norwich Union Fire Ins. Soc. v. Board of Commissioners, 141 F.2d 600 (5 Cir. 1944). The fire was the “proximate cause” of McManus’ loss. His interest in the damaged items was lost when the fire destroyed his restaurant business.

In the present case, McManus decided not to repair his restaurant and re-establish his business. The trial court found as facts that: “. . . the building has to be considered a total loss.” (Tr., 258) and “. . . the building was destroyed beyond use by the fire.” (Tr. 256). These factual findings of the trial court are accorded much weight on appeal. No contention was actually made that McManus could or should have re-established his restaurant; no testimony or evidence was offered that he acted other than reasonably in concluding not to repair or restore LeBonheur. Following McManus’ decision not to reopen the restaurant, the building was torn down by the owner. Total loss of a building by fire can occur without complete annihilation. Hart v. North British & Mercantile Ins. Co., 182 La. 551, 162 So. 177 (1935).

STATUTORY PENALTIES & ATTORNEY FEES

McManus, plaintiff herein, makes a strong argument for the award of statutory penalties and attorney fees. The trial court disallowed plaintiffs demand for penalties and attorney fees, stating as follows:

“The plaintiff makes a claim for damages under L.R.S. 22:658, contending that the defendant insurance company was arbitrary and capricious in its failure to adjust the disputed items. The jurisprudence requires that this statute be given a strict interpretation, and in a doubtful case the issue must be resolved in favor of the insurer. We find that the defendant was in good faith in attempting to adjust plaintiff’s loss, and in considering the difficulty this Court had dealing with the items involved and the apparent lack of effective communication between the parties, we find that Charter Oak’s agent was not ‘arbitrary and capricious’ under the statute.”

In Headrick v. Penn. Millers Mutual Ins. Co., 257 La. 1101, 245 So.2d 324, the Supreme Court stated:

“The statute is penal in nature and, consequently, must be strictly construed. Nichols v. Iowa Mutual Insurance Company, 232 La. 856, 95 So.2d 338. As the courts have often held, penalties do not arise merely because the insurer is east in judgment under the policy. They may be assessed only when the failure to pay is arbitrary and capricious. Wells v. Twin City Fire Insurance Company, 239 La. 662, 119 So.2d 501; Ranzino v. Allstate Insurance Company, La.App., 210 So.2d 907; Bennett v. Niagara Fire Insurance Company, La.App., 126 So.2d 718.”

In Icklone v. Travelers Indemnity Co., 345 So.2d 202, this Court quoted with approval the well-established rule that the statute in question is penal in nature and must be strictly construed and that penalties may not be assessed merely because the insurer is the unsuccessful litigant in a law suit. These may be assessed only where the failure to pay is arbitrary, capricious, and without probable cause. See also Labbe v. Mt. Beacon Ins. Co., 221 So.2d 354 (La.App. 4 Cir. 1969); Cotlar v. Gulf Ins. Co., 318 So.2d 923 (La.App. 4 Cir. 1975); Reed v. U. S. Fidelity & Guaranty Co., 302 So.2d 354 (La.App. 3 Cir. 1974); Halford v. Republic Underwriters Ins. Co., 348 So.2d 87 (La.App. 4 Cir. 1977).

The claims of plaintiff in the case at bar were multitudinous, the liability for and proof of which left a good deal to be desired. However, as stated above, we find no manifest error on the part of the trial court in the various awards which it made.

We affirm the trial court’s disallowance of plaintiff’s demand for statutory penalties and attorney’s fees.

For the foregoing reasons, the judgment of the trial court on all issues is affirmed.

Costs of this appeal are assessed equally between the parties litigant.

AFFIRMED.

WATSON, J., concurs in part and dissents in part and assigns written reasons.

WATSON, Judge,

dissenting:

The majority, in a well-written and thoroughly researched opinion, finds every fact and establishes every element necessary to assess penalties and attorney’s fees but, for some reason not stated, fails to do so. The insurance company gave no reason at trial for not paying the balance of McManus’ claim. Likewise, the majority gives no reason why the insurer was not required to pay the remainder of the claim. To say that penalties are denied because the statute is stricti juris begs the question. To say that the liability and proof of the claim leave much to be desired, as the majority concludes, is incorrect as shown by the majority’s preceding review of the facts and the law.

The only witness testifying on behalf of the insurance company was their adjuster, Langley. He really said nothing to defend the charge that the refusal to pay the various claims was arbitrary and capricious. The adjuster knew that the entire stock of food and liquor in the building had been condemned by the health department. The floor and roof of the building actually fell through in one place, but the insurer consulted no expert on the plumbing loss, the electrical loss or any other phase of the claim. The insurance adjuster admitted under cross-examination that:

“Q. He [McManus] provided you with everything that you asked; is that correct?
“A. As I recall, yes.” (TR. 333).

About the only reason assigned for not paying various claims by Langley was “. . .1 did not feel that we owed this.” (TR. 287).

The record is somewhat lengthy and careful study is required to isolate the various items claimed and the treatment of each by the insurer. However, the majority had no problem in dealing with Items 1 through 13 and determining the basis for each.

As to at least two claims: the drapes, chairs, sofas and tables of Item 3 valued at $1945.09; and the bars of Item 10 valued at $2,263.66; the chattels were either totally destroyed or damaged beyond use by the fire, soot, smoke and water. No dispute whatsoever exists as to their loss. However only $764.39 was paid on Item 3 (which, when other claims were added to the drapes and furniture, totaled $3,795.55) and nothing at all was paid on Item 10.

There was no confusion or complexity to Item 3 and Item 10. The insurer simply failed, arbitrarily, to pay the amounts owed.

The same is true of the other amounts not paid. Although the facts were somewhat complicated the law was not. The only exotic feature was that the claim involved substantial sums for loss of use of “improvements and betterments”, but that was a precise risk insured against by the policy (see TR. 33 and the quotation in the majority opinion).

That a claim is factually complicated does not make failure to pay a valid loss any less arbitrary.

My analysis of the items found due by the trial court but denied by the insurer reveals that, of the ten items allowed by the trial court, only two items represented a valid dispute between the insurer and the insured. These were storage of furniture, which was a judgment decision and the downstairs reconditioning, which the adjuster thought to be a duplication of another claim. These items total only $1,971.78 of a total award of $22,792.42 by the trial court.

Items totaling $20,820.64 were clearly covered under the policy as interpreted by the jurisprudence. With due respect to my learned brother of the trial court, who favored us with an incisive analysis of the various claims of considerable complexity in his excellent reasons for judgment, and to my brothers of the majority, I conclude that the trial court erred in failing to allow penalties and attorney’s fees. The failure and refusal of the insurer to pay McManus was arbitrary, capricious and without probable cause. He is entitled to a penalty of 12% on the sum of $20,820.64 and to a reasonable but substantial attorney’s fee.

I respectfully dissent.


author: SAMUEL, Judge. REDMANN, Judge,

text:
    Succession of Luden William ROLLAND, Sr.
    No. 9564.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1978.
    Rehearing Denied June 26, 1978.
    Meunier, Martin & Meunier, Richard J. Meunier, New Orleans, for appellees.
    F. L. Morris, Metairie, for appellant.
    Before SAMUEL, REDMANN and BEER, JJ.
   SAMUEL, Judge.

This matter is before us solely on a rule issued by this court sua sponte to show cause why this appeal should not be dismissed.

The original petition for appeal was filed on December 2, 1977. It states the appellant desires to appeal suspensively from a judgment dated November 10, 1977. The trial judge refused to sign the order of appeal attached to the petition for the stated reason it was an “improper order”. Subsequently, the December 2,1977 petition for appeal was “amended” by a motion for appeal filed March 10,1978 changing the original motion in some respects but still seeking a suspensive appeal from the judgment of November 10, 1977. The order attached to the March 10,1978 motion was signed by the trial judge on March 13, 1978. As signed that order grants a suspensive appeal conditioned upon the furnishing of security in the amount of $5,000. Security was furnished on April 18, 1978.

We find we must dismiss the appeal, both suspensive and devolutive. There was no application for a new trial and the matter is controlled by Code of Civil Procedure Article 2123, as amended by Act 129 of 1974, as to a suspensive appeal, and Code of Civil Procedure Article 2087, as amended by Act 201 of 1976, as to a devolutive appeal. As provided by subsection (1) of each article, an appeal may be taken within 30 days in the case of a suspensive appeal and 60 days in the case of a devolutive appeal of: “The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been timely filed.” Under Article 1974 the delay for applying for a new trial is seven days (exclusive of holidays) and in this case that delay commenced to run on November 14, 1977, the day after the judgment appealed from was signed, excluding November 11, 12 and 13, 1977, which were holidays. Thus, the delay for taking this appeal began to run on November 23, 1977. The 30 day delay for taking a suspensive appeal expired on December 23, 1977 and the 60 day delay in which a devol-utive appeal could have been taken expired January 23, 1978.

Thus, the so-called “amended” motion for an appeal, filed March 10,1978, was clearly not timely for the reason that an appellant cannot extend the delay in which he can take an appeal simply by calling his motion for appeal an amendment to a prior timely filed motion which the trial judge refused to sign. On such a refusal to sign, the appellant must either timely file a motion which the judge does sign or, if the judge refuses to sign, make application for supervisory writs compelling such signature. As we said in Thomas v. Berman, La.App., 308 So.2d 797, in which case appellants’ motion for appeal was signed by the trial judge after the delays for taking the appeal had expired:

“The responsibility for obtaining the necessary order of appeal and furnishing bond rests with counsel for appellant. If for some reason the trial judge fails or refuses to sign an order of appeal, counsel for appellant must apply for supervisory writs to compel the trial judge to sign the order of appeal and this must be done within the delays permitted by law for perfecting the appeal. Fidelity B. & T. Co. of Slidell v. Pinewood Country Cl., 250 So.2d 577 (La.App. 1st Cir. 1971); and Rodrigue v. Ziifle, 297 So.2d 793 (La.App. 4th Cir. 1974). The statutory time allowed for perfecting an appeal cannot be extended by the trial judge, the appellate court, or counsel. It is absolute. Hawkins v. Shropshire, 275 So.2d 821 (La.App. 4th Cir. 1973).”

For the reasons assigned, the appeal in this case, both suspensive and devolutive, is dismissed.

APPEAL DISMISSED.

REDMANN, J., concurring with written reasons.

REDMANN, Judge,

concurring.

Because I have doubt as to the effect of the trial judge’s having first signed the order of appeal (“improper” because) not providing bond, I prefer to dismiss on the ground that appellant has no right of appeal because she petitioned for the exact judgment the trial court rendered. (If, as the record might permit speculating, the attorney who filed the petition was not authorized to act for her — she had other counsel of record — a simple appeal does not suffice to vacate the judgment on that ground. Presumably some action in the trial court such as an action of nullity would be appropriate.)

      . The record contains no other judgment. The judgment of November 10, 1977 places each of the five petitioners therefor into possession of an undivided one-fifth interest in the decedent’s estate as his sole and only heirs and discharges the administrator, all as prayed for in the petition for that judgment. Although we do not place our conclusion thereon, we note that as the appellant is one of those petitioners, and as the November 10, 1977 judgment gives her all the relief she sought, it would appear that she has no right to appeal from that judgment.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Albert F. GONSOULIN v. Roby V. SMITH, Jr.
    No. 9558.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1978.
    Rehearing Denied July 26, 1978.
    John H. Hammel, Jr., John H. Hammel, III, and Richard A. Hammel, New Orleans, for plaintiff-appellee.
    Gene E. Friedman, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

On our own motion we questioned our jurisdiction over this appeal.

Appellant filed a petition to enjoin an executory process proceeding, praying for a temporary restraining order, a rule to show cause why a preliminary injunction should not be issued, and a permanent injunction against appellee. The trial court issued the rule and in response appellee filed an exception of no cause of action, praying that the debtor’s suit for injunction be dismissed. The judgment appealed from recites that rule for a preliminary writ of injunction and the exception of no right or cause of action came on for hearing but the decretal paragraph is as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that the exception of no right or cause of action herein be maintained, and the said rule for a preliminary injunction by defendant, Roby V. Smith, Jr., be and the same is hereby dismissed.”

This judgment was signed on March 23, the petition for suspensive appeal was filed on March 27, but the suspensive appeal bond was not filed until April 10.

LSA-C.C.P. Art. 3612 provides as follows:

“An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.”

Thus, if the article applies to this case the last day available to appellant to furnish bond was April 7 with the result that we have no jurisdiction over the appeal.

Appellant contends that the case is governed by Calhoun v. State, 152 So.2d 866 (La.App. 3rd Cir. 1963), but we distinguish that case for the reason that there in passing on the exception of no right of action filed by the defendant the court sustained the exception and dismissed the suit at plaintiff’s cost. The court noted that this was a final judgment which disposed, not only plaintiff’s demand for a preliminary injunction, but also his right to obtain a permanent injunction. In the instant case, by the plain wording of the judgment appealed from only the rule for the preliminary injunction was dismissed while plaintiff’s suit for a permanent injunction is still viable and pending in the trial court.

We have concluded that the provisions of Art. 3612 are applicable and that the appeal bond was filed too late. Accordingly, the appeal is dismissed.

APPEAL DISMISSED.

REDMANN, J., dissented with written reasons.

REDMANN, Judge,

dissenting.

If one has no right of action to enjoin preliminarily, he equally has none to enjoin permanently. Similarly, if one has no cause of action. The effect of the judgment is to dismiss plaintiff’s suit. We should apply the principle of Calhoun.


author: COVINGTON, Judge.

text:
    DIXIE ELECTRIC MEMBERSHIP CORPORATION v. Glenn JONES.
    No. 12010.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.

      Michael E. Ponder, Baton Rouge, for plaintiff.
    Allen B. Pierson, Jr., Pierson & Drake, Ponchatoula, for defendant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This suit originally came before the trial court on a petition for injunctive relief filed by Dixie Electric Membership Corporation (Dixie), seeking to restrain Glenn Jones from interfering with Dixie’s relocation of an electric transmission line across Jones’s property, so that the line would go around Jones’s house instead of in close proximity thereto. The petition in the injunction suit described certain property across which Dixie claimed a right-of-way. The basis for this claim came about when, in 1939, Dixie, in order to provide electric service to the Bear Island Community, secured certain rights-of-way from the property owners abutting “Road 160”.

The record reflects that two judgments were signed by two different judges of the district court. One judgment was signed on December 3, 1973, and the second on January 25, 1974; each granted Dixie the in-junctive relief sought. The judgments essentially restrained Jones from interfering with the relocation of the transmission line. Thereafter, Dixie acted to relocate the line by setting an additional pole to enable the line to go around the Jones house in a “dog-leg” fashion, so as to alleviate a potentially dangerous condition.

In April of 1974, Glenn Jones, through his present counsel, filed an answer and a petition for damages, and also demanded removal of any transmission lines across his property. Jones contended that the property described in the right-of-way instrument, as well as in the original petition and the judgments, was not the correct description of his property across which Dixie had placed the transmission line.

To these pleadings Dixie filed certain exceptions and a motion for summary judgment. Dixie then agreed to a restraining order preventing any further activity on the Jones property until such time as the matter could be resolved by the trial court. Subsequently, the trial judge overruled the exceptions and denied the motion for summary judgment.

In due course, the matter came on for trial on the merits. The trial judge, being of the opinion that Dixie had obtained a valid right-of-way across the property of the appellant by virtue of the right-of-way instrument executed by J.D. Jones, a predecessor in title, on May 4, 1939, of record in Conveyance Book 56, page 101, of the records of Livingston Parish, covering approximately eight acres of land, rendered judgment recognizing the validity of said grant. He also recognized Dixie’s right to relocate the transmission lines on said property.

The court dissolved all injunctions issued previously in favor of either party, and dismissed Jones’s claim for damages and his action to remove the line from his property. Jones has appealed. We affirm.

Dixie Electric Membership Corporation obtained a right-of-way servitude, or easement, over approximately eight acres of land in 1939, then owned by J.D. Jones, described as:

“A certain tract or parcel of land containing approximately 8 (eight) acres in the 5 (fifth) Ward of the Parish of Livingston, on the 160 Road, purchased by the undersigned from B.B. Cleney-Jones and bounded on the north by Road 160, south by L. Picou, east by Bear Is. (Island) Road and west by Farm Rd. 14 (one-quarter) Sec.” (Filed and recorded on February 9, 1940, in COB 56, p. 101).

At about the same time, Dixie acquired a right-of-way over a twenty-one acre tract from J.G. Jones; this was recorded in Conveyance Book 56 at page 102, on the same date as the one from J.D. Jones.

Although J.D. Jones, the father of Glenn Jones, denied signing the 8-acre right-of-way instrument, the trial judge accepted it as valid and as the pertinent servitude. Applicable to this situation is the Ancient Document Act, LSA — R.S. 13:3727, which in part states:

“In every instance where the conveyance records in the office of the clerk of court . show that any deed, conveyance ., or other written act . shall have been recorded in the records for a period of not less than twenty-two years, it shall be presumed that the original instrument of which the record purports to be a copy bore the genuine signature of the maker . . . (and) . shall be received and admitted in evidence . . . without proof of signature . . . and shall be deemed pri-ma facie proof of the contents . . .”

Our Supreme Court in Osborn v. Johnston, 322 So.2d 112 (La.1975), interpreted the Ancient Document Act as follows:

“Our statute does not require that the ancient instrument be ‘regular’ or ‘unsuspicious’. The combination of age and recordation not only authenticates the old document . . . but ... by the terms of the act, established ‘a prima facie presumption of the execution and of the genuineness of such instrument’.” (Citing Watkins v. Zeigler, 147 So.2d 435, La.App. 2 Cir. 1965).

The Supreme Court also pointed out that the burden of proof under the statute is on the party questioning the ancient instrument to overcome the presumption of its prima facie validity. This defendant has not borne that burden. In any event, the testimony in the record, when read in its entirety, is not so persuasive as to overcome the presumption created by LSA-R.S. 13:3727.

A conventional servitude established by title is governed principally by the intention of the parties. Article 709 of the Louisiana Civil Code provides that owners of land may establish “such servitudes as they deem proper.” The article also provides that the use and extent of the servitude are regulated by the title by which they were granted. We find that the trial court did not abuse its discretion in finding that the transmission line was originally located in accordance with the right-of-way granted.

The record reflects that the transmission line was constructed in the 1940’s and the Jones house was not constructed until the early 1960’s. All parties agree that in 1969 the transmission line extended over a portion of the Jones residence. Hence, we can only conclude that the house was constructed under the transmission . line. We believe that, pursuant to LSA-C.C. art. 777, it was proper for the line to be relocated so that the Jones house was no longer beneath the transmission line; a potentially dangerous condition was thus alleviated. We further find that the relocating of the line by setting an additional pole to enable the line to go around the Jones house in a “dog-leg” fashion was reasonable under the circumstances.

In view of the fact that we have agreed with the trial court in finding that Dixie held a conventional servitude on the subject property, as discussed above, it is not necessary for us to rule upon the question of a prescriptive right-of-way having been acquired by Dixie across the Jones property.

The finding of a conventional servitude also makes it unnecessary for us to discuss the effects of the cases of Joseph A. Neyrey, General Contractor, Inc. v. Louisiana Power & Light Company, 347 So.2d 266 (La.App. 4 Cir. 1977), and of Lake, Inc. v. Louisiana Power & Light Company, 330 So.2d 914 (La.1976), cited by appellant. In neither case was a conventional servitude involved.

For the foregoing reasons, we affirm the judgment at appellant’s costs.

AFFIRMED.

      . Unfortunately, in the instant case there was some confusion, even in Dixie’s mind, as to which of the two servitudes covered the subject property. It is appellant’s position that neither of them covers it.


author: COVINGTON, Judge. CHIASSON, Judge

text:
    Allen BRIDGEWATER v. Mattie Lee Johnson BRIDGEWATER.
    No. 12-025.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Michael W. McKay, Baton Rouge, for plaintiff-appellant.
    John D. Carpenter, of C. Alvin Tyler & Associates, Baton Rouge, for defendant-ap-pellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

Allen Bridgewater, plaintiff-appellant, filed an eviction rule against his wife, Mattie Lee Johnson Bridgewater, defendant-ap-pellee, for her to show cause why she should not be ordered to vacate his separate property which had been occupied by them as their matrimonial domicile. Following a hearing, the trial court denied plaintiff’s demands for eviction of his wife, and he appeals. We affirm.

The facts were stipulated, and can be briefly stated as follows. On November 22, 1977, plaintiff filed a rule against his wife, seeking to have her evicted, by summary proceedings, from their residence which is the separate property of the husband and served as the matrimonial domicile up to the time they commenced living separate and apart. At the time of the hearing, there was pending before The Family Court, East Baton Rouge Parish, Louisiana, a suit for separation from bed and board, but judgment of separation had not been rendered therein.

The sole issue before this Court on appeal is whether or not a husband is allowed, prior to a judgment of separation, to evict his wife from the matrimonial domicile when the home is the husband’s separate property.

The trial judge, with written reasons, answered in the negative, relying on the case of Purdy v. Purdy, 331 So.2d 868 (La.App. 2 Cir. 1976). We agree with the ruling of the trial judge and with the holding and rationale of the Purdy case.

The judgment is affirmed at appellant’s cost.

AFFIRMED.

CHIASSON, J., dissents and assigns written reasons.

CHIASSON, Judge

dissenting:

While I agree with the general principle as announced by the Supreme Court in the case of Kramer v. Freeman, 198 La. 244, 3 So.2d 609 (1941) that there may be cases where a court would be justified, for reasons based upon the public policy, in refusing to permit a husband to sue his wife during the marriage, I cannot agree that the deciding factor should be the obtaining of a judgment of separation. The marriage is still in existence even after a judgment of separation. Further, if a cause for separation exists, Louisiana Revised Civil Code Art. 120 is not enforceable even before the rendition of a judgment of separation.

In this particular case the premises were used as the matrimonial domicile of the parties prior to their separation and as a place of business of the husband. The parties were in fact separated and a suit for separation was pending in the Family Court of East Baton Rouge Parish. The husband-owner’s responsibilities to his separated wife should be determined by the orders of the family court in which the separation suit is pending. No order or judgment of that court has been filed in this proceeding which obliges the husband-owner to allow his wife the use of these premises or accepting her occupancy thereof as a payment in kind of alimony. The fact that the occupant of the premises is the owner’s separated wife does not affect the owner’s right to possession of his property. Pritchett v. Pritchett, 350 So.2d 1264 (La.App. 4th Cir. 1977).

I therefore respectfully dissent.

      . The judgment permitted plaintiff to use his separate property “to the extent that it does not deprive defendant, Mattie Lee Johnson Bridgewater, of her right to occupy the house as matrimonial domicile until the judgment of separation is rendered between them.”


author: BLANCHE, Judge.

text:
    Jimmie J. HAIRFORD v. STATE POLICE RETIREMENT BOARD.
    No. 12052.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Benjamin C. Bennett, Jr., Marksville, of counsel for plaintiff-appellant Jimmie J. Hairford.

      William T. Reeves, Jr., Asst. Atty. Gen., Baton Rouge, of counsel for defendant-ap-pellee State Police Retirement Board.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Jimmie J. Hairford, who was employed as an Investigator III by the Division of State Police, Department of Public Safety, applied for retirement benefits from defendant-appellee, State Police Retirement Board, based on illness and injury which he alleged were received in the line of duty. The Board rejected his application. Plaintiff filed this suit under the authority of Louisiana Revised Statutes Title 49, Chapter 13, the Administrative Procedure Act; and after trial the trial court remanded the matter to the Board for further proceedings to “delineate the cause, extent, and effect of [plaintiff’s] illness, including * * * his mental and emotional status.”

Plaintiff having appealed to this Court, it is our duty to decide if the trial court was proper in the judgment it rendered to remand or if a judgment should be entered either to affirm the Board’s dismissal of the application or to grant plaintiff retirement benefits as duty related or non-duty related. .

The applicable statutes relating to the retirement benefits are LSA-R.S. 40:1428 and 40:1430. Plaintiff had slightly more than five years coverage under the State Police Retirement Plan. In his application he alleged that his disability was caused in the line of duty. It will be noted from a reading of the statutes that a person with five years service is entitled to 30 percent of his average salary for non-duty caused disability (R.S. 40:1428[C]), but his benefit will be 75 percent of his average salary if his disability results from injury received in the line of duty (R.S. 40:1430). R.S. 40:1428(B) requires that a disability retirement application be accompanied by certificates from at least three physicians stating that the applicant is unable to perform the duties required of him by the head of the division. There is no other statutory burden placed upon the applicant in R.S. 40:1428(B) which covers the non-duty disability retirement.

Whether plaintiff is entitled to benefits for disability resulting from illness or injury received in the line of duty is a matter of proof.

In this connection, plaintiff submitted letters from three different physicians which stated that he was totally disabled and that his disability was duty related. Dr. A. John Tassin, Jr., said that “this disability will be permanent and that further, his disability is caused or directly related to his employment as a State Police Officer.” Dr. Francisco N. Cantu wrote, “Mr. Hair-ford is totally and permanently disabled and * * * the disability is a result of his employment as a State Police Officer.” Dr. Ramson K. Vidrine concluded, “I feel that this man is permanently and totally disabled and feel that this is directly related to his employment.”

Also a part of the record is a statement by plaintiff’s former superior, Donald J. Thibodeaux, that included this pertinent observation:

“ * * * As an investigator * * * he had been involved in investigations and/or intelligence gathering dealing with internal affairs misconduct, explosives, blackmail, governmental corruption, prostitution, narcotics, gambling, attempted murder, and many other areas that may cause extreme anxiety.
“In the last few months of my tenure, I did notice that Mr. Hairford had become more withdrawn than usual, and that he had on several occasions told me that he wasn’t feeling too well. He never did tell me what was bothering him, but I did suspect that his involvement in the undercover work I had assigned him had something to do with it.” (Record, p. 15)

The State Police Retirement Board had plaintiff examined by Dr. Vance G. Byars, Jr., who was connected with the Earl K. Long Memorial Hospital of the Louisiana Health and Human Resources Administration. Dr. Byars said:

“After careful review of this patient’s history, as well as my own findings, I feel that this patient is not capable of carrying out the duties of a State Trooper. I do not feel that this patient is, at this time, capable of any meaningful employment which will require mental concentration or alertness. In so far as this patient refuses to see a psychiatrist, I am unable to further delineate his mental and emotional status. * * * ” (Record, p. 12)

Based upon the statements of the three physicians which plaintiff had accompanying his application, together with the statement of Dr. Byars, the Retirement Board-designated physician, we conclude that plaintiff is totally and permanently disabled and that the evidence is sufficient to sustain a finding that his disability is duty related.

It is suggested that the opinions of the physicians that plaintiff’s disability was duty connected are conclusions which are not justified by any evidence. Our examination of their reports as well as the statement of Donald Thibodeaux indicates that plaintiff’s emotional disability is related to the type of work in which he had been engaged. There is no report in the record to the contrary, and insofar as the record shows, the physicians who examined plaintiff were duly qualified, licensed and practicing physicians in the State of Louisiana and competent to venture an opinion based on the history and their observation of plaintiff concerning the causal relationship of plaintiff’s disability as a result of his work.

Counsel for the defendant Board would have us remand the case in order for plaintiff to be examined by a psychiatrist. Three of the physicians were in agreement as to the work-related nature of the plaintiff’s disability and Dr. Byars, who was chosen by the Board, did not disagree with their findings. He merely stated that he was unable to delineate plaintiff’s mental and emotional status because of his refusal to see a psychiatrist. There is no other evidence in the record bearing on the purported refusal of plaintiff to consult a psychiatrist, but in any event, the statute only requires that his application for disability be accompanied by certificates from three physicians.

For the foregoing reasons, the judgment of the trial court is reversed, and there is judgment herein granting unto plaintiff, Jimmie J. Hairford, disability benefits in accordance with the provisions of LSA-R.S. 40:1430. The defendant is taxed with all costs of these proceedings as may legally be assessed against the State of Louisiana.

REVERSED AND RENDERED.

      . LSA-R.S. 40:1428 provides:
      “A. Any sworn, commissioned, law enforcement officer of the division of state police who is a member of the system who has become totally disabled or incapacitated because of continued illness or as a result of an injury received, even though not in the line of duty, but is not eligible for retirement under the provisions of R.S. 40:1426 may apply for retirement under the provisions of this Section.
      “B. The applicant shall accompany his application with certificates from at least three physicians, certifying that he is unable to perform the duties required of him by the head of the division.
      “C. Thereafter, upon the recommendation of the head of the division and the approval of the board, the employee shall be retired at twenty-five percent of his average salary for under five years service credit, thirty percent of his average salary for five years and under ten years service credit, forty percent of his average salary for ten years and under fifteen years service credit, fifty percent of his average salary for fifteen years and under twenty years service credit, and sixty percent of his average salary for twenty years and over service credit.”

      . LSA-R.S. 40:1430 provides:
      “In case of total disability of any sworn, commissioned, law enforcement officer of the division of state police resulting from injury received in the line of duty, a monthly pension of seventy-five percent of his average salary shall be paid to the disabled employee under the provisions of this subpart.”


author: PONDER, Judge.

text:
    David O. DUNSON v. TRIAD CHEMICAL COMPANY et al. MISSISSIPPI CHEMICAL CORPORATION v. DOW CHEMICAL COMPANY.
    Nos. 12019, 12020.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Theodore A. Mars, Jr., .Young & Mars, New Orleans, for plaintiff-appellant in No. 12019.
    Daniel R. Atkinson, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for defendant and third party plaintiffs-appellants, 1st Miss. Corp. and Miss. Chemical Corp. in No. 12019 and plaintiffs-appellants in No. 12020. '
    Boris F. Navratil, Breazeale, Sachse & Wilson, Baton Rouge, for defendant-appel-lee Dow Chemical Co. in Nos. 12019 and 12020.
    Donald T. Carmouche, Talbot, Sotile & Carmouche, Donaldsonville, for defendant-appellee and defendant-appellant Home Insurance Co.

      W. Luther Wilson, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-appellants GATX & Travelers Indemnity Co.
    Ben L. Guelfo, Watson, Blanche, Wilson & Posner, Baton Rouge, for third party defendant-appellant International Minerals & Chemical Corp.
    Esmond Phelps, II, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendant-appellee Missouri Pacific Railroad.
    G. William Jarman, Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendants-appellees and plaintiffs-appellants 1st Miss. ■ Corp. and Miss. Chemical Corp. (Louisiana Counsel).
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

These are appeals from judgments for personal injuries and property damage resulting from the escape of anhydrous ammonia.

The lower court rendered judgment in favor of Dunson and against General American Transportation Company for $65,000.00 and in favor of Triad Chemical and against General American Transportation Company for $11,330.00. All claims against all other defendants and third party defendants, Dow Chemical Company, Triad Chemical Company, International Minerals & Chemicals Corporation, and Missouri Pacific Railroad Company, in the two consolidated cases were dismissed.

Dunson appealed contesting the sufficiency of the award. GATX appealed contesting the sufficiency of proof of its liability. Several other parties perfected protective appeals.

The issues are:

(1)' Sufficiency of proof against General American Transportation Company;

(2) Strict liability of Triad Chemical;

(3) Quantum.

We affirm.

Car Number 30764, a tank car, was man-, ufactured in 1964 by General American Transportation Company, commonly identified by the acronym GATX. It was leased to Dow Chemical Company until early 1975 for transporting vinyl chloride. Admittedly, it was derailed in 1973 and was “cornered” in 1975 while still leased to Dow. Penn Central Railroad made the repairs in 1973. GATX repaired the car in December 1974 and changed its rated capacity. In late February, 1975, repairs were made by GATX at its mini shop located at Dow. After the car’s release by Dow, it was leased to International Minerals & Chemicals Corporation. Missouri Pacific Railroad Company transferred the car to the grounds of Mississippi Chemical Company and First Mississippi Corporation engaged in a joint venture in the name of Triad Chemical. While the car was being loaded with anhydrous ammonia on the night of March 6, 1975, it ruptured and spilled about 70 tons of the chemical.

Plaintiff, employed as a bargeman and engaged in loading anhydrous ammonia at the dock of an adjoining plant, smelled gas but thought only of a small leak on the barges loaded by him. When he realized the magnitude of the exposure it was too late to avoid being exposed for seven or eight minutes. He suffered and was treated for immediate injuries. He alleges permanent physical injuries. He sued the parties named and these filed multiple third party claims against each other.

In the consolidated suit, Triad Chemical claimed damage to its equipment.

After the accident, wheel marks were found on Tank Car 30764 in the vicinity of the rupture. At the trial there were some expressions of opinion that these resulted in an increase in the stress factor that caused the rupture when the car was being filled at low temperature and high pressure.

GATX points to the repairs and inspections of the car made in December, 1974 and late February, 1975 and urges the conclusion that it has breached no duties. It points to the duty of the railroad and of the lessees to inspect and argues that the other parties must have been negligent and so responsible. It asserts that the damage to the car must have occurred in the transfer from Dow to Triad.

To controvert those conclusions, the plaintiff and other parties point to the scar in the metal of the tank car and to the opinions of some of the experts that the rust and corrosion indicated that the wheel marks were not of recent origin and should have been detected by GATX.

Under these facts, the trial court evidently concluded that GATX had breached its duties, either in general or under C.C. Arts. 2695 and 2693; that the other parties had not assumed these duties by lease contract or by virtue of the customs of the industry or by American Railroad rules or Federal regulations; and that the other defendants and third party defendants had not breached any duties to the plaintiffs causing damage to them.

GATX and Dunson assert that Triad should be cast for all or at least part of the damages under the strict liability theory as in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133. A defense to this strict liability is that the damage was caused by the fault of the plaintiff or of a third person, not the use, even non-negligent, by the owner. See Morales v. Houston Fire and Casualty Co., Inc., 342 So.2d 1248 (La.App. 4th Cir. 1977), writ refused 345 So.2d 49 (La.1977). Here the lower court found fault in a third person— GATX.

We have found in the record sufficient evidence to support the conclusions of the trial court.

Both Dunson and GATX appealed on the question on the amount of the award. While the medical testimony is somewhat contradictory and the evidence as to the effect upon Dunson’s ability to work and his general health conditions are not entirely conclusive, nevertheless, there is evidence in the record to support the award by the court.

We therefore affirm at the cost of all appellants.

AFFIRMED.

      . The court assigned no reasons.

      . C.C. Art. 2695
      “The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor should be bound to indemnify him for the same.”

      .C.C. Art. 2693
      “The lessor is bound to deliver the thing in good condition, and free from any repairs. He ought to make, during the continuance of the lease, all the repairs which may accidentally become necessary; except those which the tenant is bound to make, as hereafter directed.”