author: PER CURIAM. ANSTEAD, Judge,

text:
    BARNETT BANK OF COCOA, N.A., a National Banking Corporation, Appellant, v. Eugene H. OSBORNE and Faye Osborne, Appellees.
    No. 76-1873.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Robert T. Westman of Stromire, West-man & Lintz, Cocoa, for appellant.
    Barbara T. Taylor of Jamieson & Taylor, Cocoa Beach, for appellee-Eugene H. Osborne.
   PER CURIAM.

Upon consideration of the record, briefs and the argument of counsel for the respective parties, we determine the trial court correctly ruled that the property was subject to the homestead exemption claimed by the former husband, notwithstanding the former husband and wife having been divorced and the wife entrusted by the decree with custody of the children and possession of the home. Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780 (1929); Daniels v. Katz, 237 So.2d 58 (Fla.3d DCA 1976).

Affirmed.

CROSS and DAUKSCH, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

I would reverse the trial court’s order that the appellant, Barnett Bank of Cocoa, could not levy on the undivided one-half interest of the appellee, Eugene H. Osborne, in the real estate owned by Osborne with his former wife.

Barnett has a judgment against Eugene who is divorced from Faye Osborne but owns real estate with her as a tenancy in common. Faye was granted exclusive possession of the property in the dissolution proceedings, until her youngest child reached age 18. When Barnett attempted to levy on Eugene’s interest in the land, Eugene sought and received an order protecting the property from levy as a homestead under Article X, Section 4(a), Florida Constitution. Faye does not object to the levy. The trial court found that Eugene was not the head of a family but that nevertheless since Faye Osborne was the head of a family, the homestead exemption applies to Eugene’s interest.

On appeal Eugene claims the homestead exemption of his former wife extends to the entire property, his interest included. The First District has ruled directly to the contrary:

While it is not necessary that the entire estate in property be vested in one occupying land as a homestead before it may be impressed as homestead in character, the homestead exemption applies only to the beneficial interest owned by the head of a family. Morgan v. Bailey, 90 Fla. 47, 105 So. 143 (1925). Homestead exemption extends to any right or interest the head of a family may hold in land. Bessemer Properties, Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832 (1946). Thus, Don [the former husband] is entitled to homestead exemption upon his 50% interest in the subject property, but he has no exemption in relation to Shirley’s 50% interest.

This court has held in a similar factual situation not involving the homestead issue:

Each of the parties, after dissolution of the marriage, owned an undivided one-half interest in the home as tenants in common. The undivided one-half interest of the appellant-husband is restricted by the right of appellee-wife, under the terms of the final judgment, to possession and occupancy of the home until the youngest child of the parties is eighteen. Subject to this restriction, appellant-husband should be able otherwise to encumber or dispose of his interest. Any purchaser of appellant-husband’s undivided interest would have to take title subject to appellee-wife’s right of possession, as provided in the final judgment.

Here, Eugene’s Undivided interest in the property is subject to the exclusive possession granted Faye Osborne in the dissolution proceedings, so a purchaser at an execution sale would take subject to this restriction. But the conclusion is inescapable that if the homestead exemption only extends to the “[beneficial interest] owned by the head of a family”, that Eugene’s undivided one-half interest, subject to Faye’s right of possession, is subject to levy just as it is subject to disposition by Eugene himself.

      . Tuilis v. Tunis, 342 So.2d 88, 89 (Fla. 1st DCA 1977). The issue in Tuilis was whether the husband, claiming homestead and occupying the land with his child, could prevent a partition of the property where the final judgment

      . Robinson v. Robinson, 340 So.2d 935, 936-937 (Fla. 4th DCA 1976). of dissolution gave neither spouse the right of possession to the property.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF WINTER PARK, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Winter Park Professional Fire Fighters, Local 1598, Respondents.
    No. 76-2132.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.

      Charles R. Fawsett of Johnson, Motsinger, Trismen & Sharp, P. A., Orlando, for petitioner.
    R. T. Donelan, Jr., Public Employers Relations Commission, Tallahassee, for respondents.
   PER CURIAM.

This is a review of an order of the Public Employees Relations Commission pursuant to a petition for review filed by the City of Winter Park. The petition challenges the correctness of an order allowing the inclusion of captains and lieutenants in a bargaining unit with other fire department employees. The City claims that the captains and lieutenants are “managerial employees” and “confidential employees” and therefore are not entitled to the collective bargaining rights provided in Chapter 447, Florida Statutes (1975).

Section 447.203 provides definitions for “managerial” and “confidential” employees who are to be excluded from collective bargaining. It is obvious by these definitions that a factual determination must be made in each individual case as to whether certain employees fall within these categories or not. Once this determination is made by the Commission our authority is limited to a determination of whether there has been a departure from the essential requirements of law and whether there is competent substantial evidence to support the determination.

The Winter Park fire department consists of a Chief, Deputy Chief, Fire Marshall, three captains, three lieutenants, and 29 other employees. In the previous collective bargaining agreement of the parties the captains and lieutenants were included in the same unit with the other employees. On the question of being included with the other employees this time, the officers voted 4-0 in favor of inclusion. Extensive testimony was taken in the proceedings below as to the duties and responsibilities of the captains and lieutenants. Our examination of that record confirms the existence of competent substantial evidence to support the Commission’s conclusion that the officers are not excluded, as managerial or confidential employees, from the bargaining unit. We find no departure from the requirements of law in the Commission’s order for a self determination election by the captains and lieutenants.

Accordingly, the petition for review is denied.

ALDERMAN, C. J., and MAGER and ANSTEAD, JJ., concur.

      . § 447.203(4).

      . § 447.203(5).

      . There are four volumes of testimony consisting of 932 pages.

      . § 447.307.


author: LETTS, Judge. DOWNEY,

text:
    Rayford MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 76-2146.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Nelson E. Bailey of Bailey & Brown, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

We are compelled to reverse the trial judge’s order denying the defendant’s Fla.R.Crim.P. 3.850 motion, without a hearing, upon the authority of Barfield v. State, 348 So.2d 621, Opinion filed July 8, 1977 (Fla. 4th DCA). It would appear that Bar-field mandates an evidentiary hearing “. . . unless the motion or record conclusively shows that the movant is entitled to no relief.”

Reversed and remanded for an evidentia-ry hearing on the appellant’s motion.

DAUKSCH, J., concurs.

DOWNEY, J., dissents, with opinion.

DOWNEY,

Judge, dissenting:

My study of the record in this case compels me to dissent for the reason that the allegations of fact contained in appellant’s motion for post conviction relief do not rise to the level requiring an evidentiary hearing.

Accordingly, I would affirm the order appealed from.


author: LETTS, Judge.

text:
    STATE of Florida, Appellant, v. Jeffrey J. FINKELSTEIN, Appellee.
    No. 76-2455.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Asst. Public Defender, and James K. Green, Legal Intern, West Palm Beach, for appellee.
   LETTS, Judge.

Reversed upon authority of State v. Nelson, 347 So.2d 749, Opinion filed June 17, 1977 (Fla. 4th DCA). See also Laramore v. State, 342 So.2d 90 (Fla. 1st DCA 1977).

DOWNEY and DAUKSCH, JJ„ concur.


author: ANSTEAD, Judge.

text:
    Bruce Evan FISCHLER, Petitioner, v. Reubin O’D. ASKEW, Jr., Governor, Philip F. Ashler, Treasurer, Doyle Conner, Commissioner of Agriculture, Gerald A. Lewis, Comptroller, Robert L. Shevin, Attorney General, Bruce A. Smathers, Secretary of State, and Ralph Turlington, Commissioner of Education, acting as the State Board of Education of the State of Florida, Respondents.
    No. 76-2558.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.

      Henry L. Kaye, Hollywood, for petitioner.
    Winifred L. Wentworth, Gen. Counsel, and Gene T. Sellers, Counsel, Tallahassee, for respondents.
   ANSTEAD, Judge.

The petitioner, Bruce Evan Fischler, is seeking the reversal of an order by the respondent, The State Board of Education, permanently revoking his teaching certificate.

Fischler, a Broward County middle school teacher, was arrested in January of 1975 and charged with several offenses, the principal one being the alleged delivery of 114 pounds of marijuana. In November of 1975 he entered a plea of no contest to the principal charge, adjudication of guilt was withheld, and he was placed on probation for five years, one condition being that he serve six months in the county jail.

On February 19,1976 a petition was filed with the State Board of Education by the Executive Committee of the Professional Practices Council, seeking the revocation of Fischler’s teaching certificate based on the criminal conduct described above. The matter came on for trial before a three member hearing committee of the Professional Practices Council on May 19, 1976. At that time Fischler and the hearing committee apparently entered into a stipulation in which Fischler stipulated to the facts resulting in his arrest and no contest plea and the committee agreed that his punishment would be revocation of his certificate for less than ten years. No testimony or evidence was presented at the hearing. Thereafter the Professional Practices Council issued a document entitled “Findings of Fact, Conclusion of Law and Recommendations”, in which a recommendation was made to the Board of Education that Fis-chler’s certificate be revoked for a period of six years. Fischler filed written objections to the contents of the “Findings of Fact, etc.” alleging numerous errors as to the facts and conclusions contained therein.

On November 4, 1976 the Board of Education rejected the recommendation of the Professional Practices Council and in a written order of January 18, 1977 permanently revoked Fischler’s teaching certificate. Fischler now seeks to set aside that order on three grounds: first, that the Florida statute under which revocation was ordered, Section 231.28, is unconstitutional; second, that the penalty of permanent revocation is too severe; and third, that the Board acted beyond its authority in rejecting the recommendation of the Professional Practices Council.

Section 231.28, Florida Statutes (1975) sets out the authority of the Board of Education to suspend or revoke a teaching certificate and lists various acts of misconduct on which suspension or revocation may be based:

The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (6); to revoke the teaching certificate of any person, thereby denying him the right to teach for a period of time not to exceed 10 years, with reinstatement subject to provisions of subsection (6); or to revoke permanently the teaching certificate of any person, provided:
(1) It can be shown that such person obtained the certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation, or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed.

While not a model of draftsmanship we find no constitutional flaws in the statute. Fis-chler claims the statute provides three choices of punishment for the same misconduct without sufficient guidelines to determine which of the three punishments apply. We disagree. We feel the statute clearly sets out certain prohibited conduct and authorizes a wide range of discipline, from a brief suspension to permanent revocation, depending on the facts of each case.

The other two points raised by Fis-chler attack the punishment imposed as being excessive and contrary to the recommendation of the hearing committee. As noted previously, this matter proceeded by stipulation before the hearing committee both as to the grounds for revocation and the punishment recommended. When written findings of fact and conclusions were filed, Fischler objected, claiming erroneous statements were contained therein. Fisch-ler’s objections were never ruled upon and it was upon this disputed record that the order of permanent revocation was entered. We find that such record is insufficient to sustain the Board of Education’s action and that this matter should be reversed for a new hearing on the facts.

The transcript of the hearing before the Professional Practices Council reveals two serious deficiencies in the stipulation. First, the transcript reveals a “plea bargaining” type process as a result of which neither side called witnesses or presented evidence. Fischler, in essence, offered to stipulate as to his guilt of certain misconduct, in exchange for an agreed upon punishment, to which the Council had no authority to stipulate. The Council may recommend punishment, but the Board of Education actually determines the punishment. Notwithstanding this, Fischler was advised at the hearing:

“O.K., Mr. Kaye and Mr. Wilson [counsel for the parties], it is the decision of the panel that they will accept your offer of a revocation for a period of time, less than . . . ten years or less.”

Prior to this agreement being reached, the prosecuting attorney stated:

“I know that what this hearing committee does this morning will be examined by the Cabinet [Board of Education], and they, in the end will follow the recommendation of this hearing committee. So, I sort of feel like I’m speaking out of turn, at this time in trying to stipulate. I think that full discretion lies really with the hearing committee.”

Of course, the Cabinet did not follow the committee’s recommendation.

The other deficiency is the lack of record support of the stipulation. After the “agreement” was reached the prosecuting attorney read into the record a proposed stipulation to which Fischler made several objections which were never resolved. And Fischler later objected to the written findings of fact filed and those objections were unresolved.

Permanent revocation is the extreme penalty that may be imposed. In order to sustain such an order it must be supported by competent, substantial evidence. If a stipulation is to form the basis for such an order, the terms thereof and the petitioner’s agreement thereto must appear clearly on the record. The stipulation relied on here is insufficient in both respects, and instead reveals a lack of agreement, as well as a possible misunderstanding of the effect of any agreement. 'Such a stipulation cannot be a substitute for competent substantial evidence.

Accordingly, the petition for writ of cer-tiorari is hereby granted and the order of the State Board of Education permanently revoking the teaching certificate of Bruce Evan Fischler is quashed with directions that this matter be remanded to the appropriate hearing body for further proceedings consistent herewith.

ALDERMAN, C. J., and DOWNEY, J., concur.

      . It is questionable whether a permanent revocation without the right to ever apply for reinstatement is lawful. See In re Rassner, 265 So.2d 363 (Fla.1972); The Florida Bar v. Penny, 164 So.2d 5 (Fla. 1964).

      . Erwin v. State Dept. of P. & O. R., etc., Board of Dentistry, 320 So.2d 2 (Fla.2d DCA 1975).


author: DAUKSCH, Judge.

text:
    Marvin ADAMS and Arlene J. Adams, his wife, Appellants, v. Reuben J. CHENOWITH, H. Alan Aumont and James E. Travelstead, Appellees.
    No. 77-58.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Gregory Scott of Craft, Craft & Scott, West Palm Beach, for appellants.
    Eugene Ethier, Lake Park, for appellee-Reuben J. Chenowith.
    H. Alan Aumont, pro se.
    Gary L. Vonhof of Johnson, Ackerman & Bakst, P. A., West Palm Beach, for appel-lee-James E. Travelstead.
   DAUKSCH, Judge.

. Appealed is the Order dismissing Appellant’s complaint, with prejudice, for failing to allege a cause of action. We affirm.

The complaint alleges Travelstead is an attorney who was hired by the seller to represent his interest in the sale of property to Adams. Adams was not represented by counsel. Before the closing of the real estate transaction the attorney prepared a closing statement which was incorrect in the amount due under an agreement for deed to be assumed by the buyer. The mistake resulted in the buyer paying the seller too much at the closing. The complaint also states the buyers were furnished the information in the closing statement, or a copy of the statement, before the closing.

The question is whether the attorney owed sufficient duty to the buyer so as to require him to account to the buyer for his negligence, if any. We think not. The attorney was hired by the seller to be his attorney, no representations were made that the attorney was representing both parties (which indeed he is not permitted to do, EC 5-14, Code of Professional Responsibility), and the buyer was quite free to hire his own lawyer if he was unfamiliar with preparing for real estate closings. The buyers cannot hold the sellers’ attorney liable for negligence in preparing a closing statement. The attorney’s allegiance was solely to the sellers and there is no allegation the attorney intentionally misled anyone in the matter.

In fact, the mistake arose from the holder of the agreement for deed or his bookkeeper misstating the amount remaining due.

The buyer alleges the attorney “negligently failed to obtain an estoppel letter or other verification of the balance due.” That may, or may not, be true. If we assume he did not obtain verification then how is that negligence? What duty did he have to obtain the verification? The duty, if any, was to the seller, his client, not the buyer. Nothing prevented the buyer from verifying the figures. He knew in advance of the closing of the existence of the agreement for deed and, in addition, had a copy of what the seller said was due. If anyone was negligent then no one was more negligent than the buyer in failing to take any minimum steps to complete this business deal in a proper fashion.

We have considered the case of McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976), and find it clearly distinguishable from this case. There the attorney owed a duty to a testatrix to make a will for the benefit of her daughter to whom this court held a duty was owed also. The lawyer in that case represented only one “side” of a transaction because there was only one side. Here there are two sides, two interests to be protected and we cannot hold a lawyer responsible to all parties in a transaction unless it is alleged (and proved) he committed some non-negligent tort such as fraud or theft or the like. There is not even a hint of that here.

The Order dismissing the complaint against Travelstead is AFFIRMED.

ALDERMAN, C. J., and LETTS, J., concur.


text:
    In the Interest of M. V. W., a child, Appellant, v. DIVISION OF FAMILY SERVICES (NOW SOCIAL AND ECONOMIC SERVICES) DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, Appellee.
    No. CC-401.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1977.

      Scott R. Nabors of Staats & Nabors, Panama City, for appellant.
    Duane N. Ivester and Chester G. Senf, Jacksonville, Owen S. Trappe, Jr., Panama City, Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., Eric J. Haug-dahl, Jacksonville, for appellee.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the judgment appealed is affirmed.

MILLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


text:
    DIVISION OF FAMILY SERVICES (NOW SOCIAL AND ECONOMIC SERVICES) DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, Appellant, v. In the Interest of M. V. W., a child, Appellee.
    No. FF-47.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1977.
    Duane N. Ivester, Chester G. Senf, Eric J. Haugdahl, Jacksonville, for appellant.
    Scott R. Nabors of Staats & Nabors, Panama City, for appellee.
   PER CURIAM.

The order assessing costs and attorney’s fees against the Division of Family Services (now Social and Economic Services), Department of Health and Rehabilitative Services, State of Florida, is reversed on authority of J.E.R. v. State of Florida, 317 So.2d 89 (Fla. 1st. DCA 1975), and Florida Department of Health and Rehabilitative Services, etc. v. R.M.A. et al., 327 So.2d 844 (Fla. 1st. DCA 1976).

MILLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


text:
    Earnest KNIGHT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1890.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error, therefore, the judgment of probation revocation and sentence appealed is affirmed.

The judgment and sentence of the court recites that appellant was sentenced to five years in prison “at hard labor.” To be imprisoned “at hard labor” is improper because no existing Florida statute provides for imprisonment at hard labor as a sentence for any crime. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

Also, the judgment and sentence generally recites that appellant is to be given credit for time served but fails to specify the period of such credit as required by Section 921.161, Florida Statutes.

Remanded for striking the phrase “at hard labor” in the judgment and sentence and for specific determination and allowance of the period of credit time to be allowed the appellant; otherwise affirmed. Appellant need not be present for these corrections.

GRIMES, Acting C. J., and SCHEB and OTT, JJ., concur.


text:
    STATE of Louisiana v. Phillip SCHAMBURGE, Jr.
    No. 58732.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied Sept. 2, 1977.
   PER CURIAM.

The question of timeliness of the application for rehearing is an issue; nevertheless, the resolution of that issue would be fruitless because the application is not meritorious. The issue in State v. Anderson, La., 349 So.2d 811, rehearing denied this day, is not before the court in this case.

SUMMERS, J., is of the opinion the application is untimely and should not be considered. Questions arising out of the timeliness issue are properly the subject of post conviction remedy.


author: DIXON, Justice.

text:
    SUBDIVISION PLANNING ENGINEERS, INC. v. MANOR DEVELOPMENT CORP. and Trinity Universal Insurance Co.
    No. 58853.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      Harold J. Zeringer, Jr., Zeringer & Zer-inger, New Orleans, for defendants-respondents
    Nathan Greenberg, Greenberg & Dallam, Gretna, for plaintiff-applicant.
   DIXON, Justice.

Writs were granted in this case to review the correctness of the holding by the Court of Appeal denying recovery to an engineering firm for work done on a residential subdivision development.

The plaintiff, Subdivision Planning Engineers, Inc., is an engineering corporation. Defendant, Manor Development Corporation is the corporate owner and developer of a residential subdivision, and defendant, Trinity Universal Insurance Company, had issued its lien bond (under R. S. 9:4842) in order to remove the timely filed lien by the plaintiff.

The plaintiff recovered judgment in the trial court in the amount of $22,098.44 The Court of Appeal reversed, denying recovery to the plaintiff for the reason that the plaintiff’s corporate existence did not commence until about 85% of the work had been performed by Ralph Davenport and John W. Mitchell, a partnership to which the plaintiff corporation is successor. The Court of Appeal reasoned that the lien statutes must be strictly construed, and that a lien could only be acquired “by those who performed the work."

The work in this case was performed in 1958 and 1959. Suit was initially filed in 1962; it was tried before a judge who was subsequently appointed to the federal bench; judgment in favor of the plaintiff was rendered by another district judge in 1972; the case was appealed to the Fourth Circuit Court of Appeal which affirmed in part, annulled in part and remanded to the district court. 290 So.2d 375 (La.App.1974).

Additional evidence was subsequently taken in the district court, again resulting in judgment for the plaintiff. The defendants again appealed, and the Court of Appeal reversed as noted above. 337 So.2d 618 (La.App.1976).

There is no dispute as to the facts in the case. Davenport and Mitchell formed an association for the purpose of doing the “off site” engineering work for the subdivision in question. The arrangement the engineers made was with the defendant developer. Much of the work was done before the corporate existence of the plaintiff began, and before the defendant developer acquired the ownership of the land on which plaintiff did the work. The plaintiff corporation was formed for the very purpose of doing the engineering work involved in this case.

The record makes it clear that the parties involved — the corporate developer and the engineers — knew and understood the status of the parties and of the development itself. In the course of the work defendant Manor Development Corporation wrote plaintiff Subdivision Planning Engineers, Inc. a letter which began: “This letter will serve to confirm our agreement and understanding relative to the services and work which you are performing and rendering for us in Live Oak Manor Sub-Division . Then followed the contractual provisions which are the basis of plaintiff’s claim.

The right of plaintiff corporation to sue was first raised by defendant after the case was remanded by the Court of Appeal for the taking of additional evidence to determine the amount due plaintiff. (Plaintiff had been unable to complete the entire engineering contract because Manor, in financial difficulty from the beginning, defaulted on its obligation and did not complete the development).

When the case was reopened in April of 1975, evidence showed that plaintiff’s corporate existence began March 24, 1959, when the articles of incorporation (executed the month before) were filed in the office of the clerk of court. About 85% of the engineering work had been completed at that time. Defendants thereupon filed an exception of no right or cause of action which the trial court overruled. $22,098.44 was fixed as the amount due plaintiff by defendant.

In spite of the favorable rulings, the attorney for plaintiff moved to reopen the case to remove the basis of defendant’s attack on plaintiff’s right to recover, and to eliminate another possible remand which would delay even further the termination of this extended litigation.

The trial judge denied the motion to reopen, but permitted plaintiff to make an offer of proof (C. C. P. 1636) which disclosed: the lawyer who represented plaintiff in 1959 had died seven or eight years before; in July of 1959 plaintiff borrowed money from a bank and assigned and pledged to the bank, as security, its claims against Manor; the deceased lawyer’s surviving partner testified that an assignment had been executed by the partners Mitchell and Davenport to plaintiff corporation assigning their interest in the Manor contract, but that instrument could not be located in the files; Mitchell and Davenport acknowledged that they had assigned their interest in the Manor corporation to plaintiff corporation, but that the written assignment had been lost.

The trial judge correctly permitted the offer of proof, and would have been correct if he had reopened the case to receive the evidence, although he considered it unnecessary. The evidence adequately established that the partners had assigned their rights under the Manor contract to the corporation, and that the written assignment had been lost. Their subsequent act of ratification or confirmation is valid. C. C. 2272.

The Court of Appeal was in error in so strictly construing the lien statutes (R. S. 9:4801 et seq.) as to deny plaintiff the right to recover. First, at least part of the work was done by the corporation itself after the articles of incorporation were filed. Second, the statute should not be so construed as to defeat the purpose of the statute. The object of Act 298 of 1926 (the predecessor of R. S. 9:4801 et seq.) is first, to protect the claims of those whose labor, skills and material improve the immovable:

“Applying the rules of construction previously alluded to, we find that the object of the legislation is, first, to protect the claims of all persons who, for the account of the owner, contribute their labor, skills, materials, equipment, or furnish machinery in connection with the erection, construction, repair or improvement of immovable property, by creating privileges in favor of those claimants on the structure and the land upon which it stands; second, to protect the owner of the immovable from the operation of such privileges by requiring the contractor to execute a bond for that purpose; and third, to subject a person not the owner of the immovable who has work done thereon to all the obligations placed on the owner (i. e., written contract, bond, recordation, etc.) in which case (i. e., where the work is done for a non-owner) the privileges in favor of the claimants operate on whatever right the non-owner has to the use of the land. To so construe the terms of the statute meets the requirements of strict construction and gives effect to all provisions with a view to a harmonious whole.” (Emphasis added). Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (1962).

See also R. S. 9:4814(A):

“. . . nothing in this Subpart shall be so construed as to deprive any claimant of his right of action against the surety signing and bond furnished in connection with any building contract or subcontract, or against the principal obligor thereunder, which right of action against such obligor and the said surety shall accrue at any time after maturity of the claim of the said claimant.”

It is true that statutes creating civil penalties and privileges are not to be extended by implication. American Creosote Works v. City of Natchitoches, 182 La. 641, 162 So. 206 (1935). Here there is no extension of the statute. Part of the work was done by the corporation. The rights resulting from that part which was done by the incorporators before incorporation were assigned by them to the corporation. The transfer of the right included the transfer of the accessory lien. C. C. 2645.

It is also to be noted that plaintiff’s con-' tract was directly with the owner. Manor’s obligation arises from its contract with plaintiff. It would exist without the lien statute. Except for the existence of plaintiff’s lien (R. S. 9:4813), it need not resort to the statute for its right to recover. Trinity Universal’s “lien bond” is conditioned on “the legality of (plaintiff’s) claim,” not the legality of the lien. R. S. 9:4842. However, we do not decide in this case whether a claimant under a lien bond must have a valid lien as well as a valid claim, because we have found adequate the proof of the transfer of the incorporators’ rights to the plaintiff corporation.

For these reasons the judgment of the Court of Appeal is reversed, and the judgment of the district court is reinstated, at defendants’ cost.

      . “Whenever an owner of real property shall have entered into a contract to perform private works under the laws of this state governing the letting and awarding of such contracts and in conformity with the requirements thereto, the owner of the property on which the said private work is being performed shall have the right to bond any claim or claims which may be filed or recorded against said work, whether by laborers, materialmen, suppliers, sub-contractors or general contractors, by depositing with the clerk of court of the parish in which such claims are filed or recorded, a bond with surety signed by any surety company authorized to do business in the state for an amount equal to the claim, including the cost of preparing and recording the claim plus ten per cent attorney’s fees to cover the cost thereof in the event it becomes necessary for the claimant to employ an attorney to enforce collection, plus one-fourth. The bond shall be approved by the clerk of court conditioned that in the event the legality of such claim or claims is established by suit or otherwise, the bond shall remain in full force and effect to protect the interest of the claimant in the premises.” R. S. 9:4842(A).


author: SANDERS, Chief Justice. TATE, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Percy HODGES, Sr.
    No. 58882.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      Elmer R. Tapper, William P. Schuler, Chalmette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Gilbert V. Andry, III, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Percy Hodges with the second degree murder of his wife, Gloria Hodges, a violation of LSA-R.S. 14:30.1. After a trial, the jury found the defendant guilty as charged. The court sentenced Hodges to life imprisonment, without benefit of parole, probation, or suspension of sentence for twenty years.

Defendant appeals his conviction and sentence, relying upon fifteen assignments of error.

The facts surrounding the shooting of defendant’s wife are:

On September 4, 1975, defendant returned home shortly after 10 p. m. to find his wife dismantling his bed. His eighteen-year-old son, Percy, Jr., Shamanda, a sixteen-year-old daughter, and Carla, fourteen, were helping their mother when defendant entered his bedroom. His wife and youngest daughter verbally attacked him.

Defendant, a St. Bernard Parish deputy sheriff, was bringing in his police pistol from the glove compartment of his car and had it in his hand pointed at the floor.

His wife informed him that he was not sleeping there anymore. Daughter Carla chided that he should be ashamed of himself. Defendant slapped Carla’s face. His wife lunged at him. She tripped over Sha-manda’s leg and fell forward to the floor. Defendant testified that while he parried backwards, the gun in his hand accidentally discharged and struck his wife. The State successfully maintained that defendant intentionally shot and killed her.

ASSIGNMENTS OF ERROR NOS. 1, 2, AND 6

These three assignments of error concern defendant’s November 20, 1975 requested oyer and pre-trial inspection of “any and all oral [and] written confessions, statements and/or admissions” made by him. The State answered that it was in possession of a statement made by defendant, but that the defense was not entitled to further information. On April 19, 1976, however, the State advised defense counsel at a hearing that in preparing the original answer, it had mistakenly stated that it was in possession of a statement made by defendant. That statement was actually a statement made by defendant’s son, also named Percy Hodges (Jr.). At that hearing, the State amended its answer to read, “No, the State is not in possession of a written statement.” The State reasserted that the defense was not entitled to the remaining information requested. Defense counsel announced that he was satisfied with that portion of the answer relating to oral statements. However, he later explained that he thought that no oral statements existed.

Prior to the commencement of trial on May 11, 1976, the State notified defense counsel of its intent to introduce an oral inculpatory statement made by defendant. Defense counsel objected on the basis of the State’s earlier answer to his prayer for oyer, which he allegedly construed as negating the existence of oral statements.

At trial, when the statement was introduced into evidence, defendant objected again. However, the trial court admitted his statement into evidence.

Defendant argues that State v. Boothe, La., 310 So.2d 826 (1975), requires that a defendant be notified upon request of the existence, if not the content, of an oral statement.

In State v. Boothe, supra, we reversed a conviction because of the State’s “patent misrepresentation” that no confession or in-culpatory statement existed. Contrary to defendant’s contention, we specifically did not consider the pre-trial discovery of the contents of the oral confession when requested in a bill of particulars or in a prayer for oyer.

In the instant case, although a misunderstanding may have occurred, it was not the result of the State’s intentionally misrepresenting the nonexistence of oral in-culpatory statements. The State specifically corrected its answer to read, “No, the State is not in possession of a written statement.” It originally answered that it was in possession of a statement by the defendant. The confusion arose logically from a statement made by Percy Hodges, Jr., defendant’s son. The State’s original answer, although incorrect, was not intentionally misleading. Moreover, the mistaken information was corrected at the hearing. There the State admitted that it was not in possession of a written statement.

Defense counsel’s misunderstanding did not result from the State’s bad faith misrepresentation, but from its good faith attempt to correct an innocent mistake which arose from a confusing situation of having a written statement from one Percy Hodges, Jr.

A criminal defendant in Louisiana has only a limited right of pre-trial discovery, and while written confessions are discoverable, oral inculpatory statements are not. State v. Perkins, La., 337 So.2d 1145 (1976); State v. Major, La., 318 So.2d 19 (1975); State v. Watson, La., 301 So.2d 653 (1974); State v. Lawrence, La., 294 So.2d 476 (1974); State v. McLeod, La., 271 So.2d 45 (1973).

Defendant advocates an extension of the rule which allows discovery of written confessions to include oral confessions. The defendant in State v. Watson, La., 301 So.2d 653 (1974), advanced a similar argument. Therein, we stated:

“Pretrial inspection of evidence, even of confessions, is not a question of constitutional proportions. Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958); Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed, 1302 (1952); Welch v. Beto, 234 F.Supp. 484 (S.D.Tex.1964); Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967) cert. den. 389 U.S. 888, 88 S.Ct. 124, 19 L.Ed.2d 188, reh. den. 389 U.S. 945, 88 S.Ct. 299, 19 L.Ed.2d 303. See annotation at 7 A.L.R.3d 8. There is no statute requiring the production of ‘oral confessions.’ Probably for the reason that the management of a scheme requiring such production would be difficult and complicated, Louisiana courts have consistently refused to extend the rule for production to oral statements of the accused.”

Assignments of Error Nos. 1, 2, and 6 are without merit.

ASSIGNMENT OF ERROR NO. 3

In Assignment of Error No. 3, defendant complains that the trial court erred in denying his prayer for oyer requesting “access to an examination by counsel, [to] examine all physical' evidence taken from the accused or allegedly used by the accused in the commission of the alleged offense, so that they may have the opportunity of countering any expert testimony offered by the prosecution.” Herein, he specifically complains of the denial of the examination of the gun which shot and killed his wife.

In State v. Collins, La., 308 So.2d 263 (1975), we held:

“As a general proposition the State is not required to produce the physical evidence it intends to use at the trial. Exceptions to this rule have recognized the right of a defendant to view and copy his written confession in the possession of the prosecutor, State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945); to obtain production of a taped confession, State v. Hall, 253 La. 425, 218 So.2d 320 (1969); or some of the confiscated narcotic evidence in a narcotic prosecution, State v. Migliore, 261 La. 722, 260 So.2d 682 (1970). When proper allegations support a finding that the defendant acted in self-defense and specifies that the weapon sought was used by the alleged victim against the defendant, supporting a claim of self-defense, we have required production of the weapon by the State. State v. Woodruff, 281 So.2d 95 (La.1973).”

None of the exceptions to the general rule are relevant here. However, while defendant acknowledges the general rule and its exceptions, he argues that Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975) supports his argument that due process requires an exception to the rule under the circumstances of his case. Therein, the Fifth Circuit Court of Appeals reversed , a conviction wherein the defendant was denied access to the murder weapon for ballistics testing by an independent expert. The court stated:

“That this was not a frivolous request is evident since one of the most damaging pieces of evidence against Barnard was the identification of the murder bullet as having been fired by a .22 Ruger pistol traced to his possession. Seventy-five percent of this slug was destroyed and the identification was made on the remaining 25%. This fact alone raises the possibility that had Barnard been assisted by a ballistics expert of his own he may have been able to shake the identification testimony of the State’s experts.”

The case of Barnard v. Henderson, supra, is distinguishable. Here, no request was made in the trial court for testing by an expert. Indeed, it is admitted that a bullet from defendant’s pistol struck his wife. The defense was that the pistol discharged accidentally. A short recess would have been adequate to determine whether the pistol had a “hair trigger,” making it more susceptible to accidental discharge. The defense requested no such recess.

We have consistently declined under these circumstances to extend pre-trial discovery to include a defense inspection of weapons used by defendants in the commission of crimes. State v. Brumfield, La., 329 So.2d 181 (1976); State v. Roberts, La., 331 So.2d 11 (1976); State v. White, La., 321 So.2d 491 (1975).

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In these two assignments, defendant complains that the trial court judge erred in failing to permit his pre-trial discovery of the coroner’s report to the district attorney and the coroner’s proces verbal.

The coroner’s written report to the district attorney, made pursuant to LSA-C. Cr.P. Art. 105, is intended to “provide the flow of information needed by the office of the district attorney in cases of apparent homicide and other apparent crimes involving medical evidence.” LSA-C.Cr.P. Art. 105, Official Revision Comment (a). The comments following the article explain that only the proces verbal of the coroner’s autopsy shall be open to public inspection and not his report to the district attorney. The coroner’s report to the district attorney forms part of the prosecutor’s private file and is not subject to discovery. See State v. Frezal, La., 278 So.2d 64 (1973); State v. Hunter, 250 La. 295, 195 So.2d 273 (1967).

However, the proces verbal of the autopsy is part of the public record. LSA-R.S. 33:1565 requires that the coroner furnish the proces verbal to the clerk of court within thirty days of conducting a post mortem examination. The coroner apparently failed to furnish the proces verbal to the clerk.

In light of the entire record, the error, if any, was harmless. See LSA-C.Cr.P. Art. 921.

Assignments of Error Nos. 4 and 5 are without merit.

ASSIGNMENT OF ERROR NO. 7

Herein defendant complains that the trial court erred in admitting into evidence in-culpatory statements made by him to investigating officers, while in custody and before he received his Miranda warnings: (1) because of the failure of the officers to advise him of his Miranda rights and (2) because the State failed to disclose the existence of the statements in time for him to prepare a defense.

We have previously concluded that his second contention is without merit in Assignments of Error Nos. 1, 2, and 6.

We have consistently held that Miranda warnings are not essential pre-requi-sites to non-custodial, on-the-scene interrogation to determine facts relating to whether a .crime has been committed or by whom. State v. Brown, La., 340 So.2d 1306 (1976); State v. Ned, La., 326 So.2d 477 (1976); State v. Corey, La., 339 So.2d 804 (1976).

In State v. Corey, supra, we applied the following objective criteria in determining the necessity of the warnings:

“(1) whether, prior to interrogation, probable cause existed to arrest the accused; (2) statements or actions by the police indicating an intention to hold or restrain him; (3) statements or actions by the accused indicating his reasonable belief that he is in custody; and (4) the extent to which the investigation has focused on the accused.”

After receiving a police radio message that a shooting had taken place, Officer Giroir responded by driving to defendant’s residence. Finding a gathering of people along the street, he inquired of Percy Hodges, a fellow officer of the Sheriff’s office, “Who got shot?” Hodges responded that his wife got shot. Officer Giroir, then the only officer present on the scene, asked Hodges who shot his wife. Hodges replied that he shot his wife.

While this conversation was taking place between Officer Giroir, the first officer on the scene, and the defendant, Officer Kirch arrived and was informed by Officer Giroir that “Mr. Hodges shot his wife.” Officer Kirch then asked, “Percy, what happened?” Defendant responded, “Oh, man, that woman. I don’t know. Come on in.” Both officers testified that Hodges then took them into the bedroom of his home where the shooting occurred. Officer Kirch did not proceed directly to the bedroom and instead checked out the kitchen to secure the premises. While Officer Giroir and the defendant were alone in defendant’s bedroom, defendant began to explain his position in the room in relation to his wife’s and to detail what occurred. From Officer Gir-oir’s testimony, it appears that once the officer understood the inculpatory nature of defendant’s statements, he interrupted him and stated, “Percy, you know you have a right to talk to a lawyer before you say anything. As a Deputy you know your rights under the Miranda warning.” Hodges said that he did. Officer Giroir continued to explain, “Percy, this shooting is going to be handled by a Captain. We ordered a Captain on the scene. I’m not going to handle this. I’m just the first car on the scene to try to prevent anybody else from getting shot.” After this warning, Officer Giroir testified that Hodges proceeded to explain what happened.

When Officer Kirch completed his check of the kitchen, he joined Officer Giroir and the defendant in the bedroom where Hodges then explained his position in the room with respect to his wife’s and stated that someone had called his wife and stated that defendant was hugging a woman and that his wife was cursing and screaming at him as a result. Officer Giroir stated that Hodges then told him “I shot her. I put the Big Five [an expression which developed from the five cent cost of a bullet] on her.” Officer Giroir then asked the defendant if his wife had a weapon on her. Defendant replied either that she was going to get a knife or she had a knife.

Defendant complains of the admission of his statements to the officers that he shot his wife and his statement to Officer Kirch alluding to self defense.

Defendant’s statements to Officers Giroir and Kirch immediately upon their arrival at the scene that he shot his wife were certainly precustodial and did not require Miranda warnings. Defendant began his narrative explanation of what happened to Officer Giroir upon their entry, at his own invitation and direction, into defendant’s bedroom. When the officer realized how the shooting had occurred, he stopped defendant, stating, “Percy, you know you have a right to talk to a lawyer before you say anything. As a Deputy you know your rights under the Miranda warning.” Hodges said that he did and then proceeded to explain in detail what had happened. Within moments, Officer Kirch entered the room, and defendant repeated his explanation, which included reference to a knife, supporting a self-defense theory. At the time defendant had already been warned by Officer Giroir that he had a right to talk to a lawyer before saying anything. The State, after giving notice of intent under LSA-C.Cr.P. Art. 768 to use defendant’s statement to Officer Kirch, introduced that statement at trial.

In State v. Anderson, La., 332 So.2d 452 (1976), this Court held that a general inquiry by an officer at defendant’s home during an investigation of his reported involvement in a shooting did not constitute custodial interrogation requiring Miranda warnings. The background facts in Anderson were these:

“On September 24, 1972, Deputy Sheriff Donald Miller received a call to come to Soileau’s Grocery and Pool Hall. When he arrived, he talked to several people and received a report that a shooting had occurred in which Clifton Anderson, Sr., an acquaintance of his, was allegedly involved. The Deputy was at the grocery from five to ten minutes. Without further investigation, he drove to Anderson’s home, arriving there in about fifteen minutes. After he knocked at the door, Anderson came outside. The Deputy Sheriff advised him that anything he said ‘would be ... evidence against him.’ In response to the Deputy Sheriff’s general inquiry (what happened at Soileau’s place?), Anderson freely related to Deputy Miller that he had shot at Clifton Williams, who was in a group ‘fixing to bunch up on his son,’ and that he did not intend to shoot the lady. He added that the gun was with his son, but did not inform the Deputy of the whereabouts of his son. The Deputy’s contact with the defendant at the home lasted about five minutes.”

The Court stated:

“Both the state and federal jurisprudence support the view that a single, general inquiry made to the defendant at his home during an investigation and pri- or to his arrest does not constitute custodial interrogation. See, e. g., United States v. Sicilia, 475 F.2d 308 (CA7 1973); Simon v. United States, 421 F.2d 667 (CA9 1970), cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62; State v. Noriega, 6 Ariz.App. 428, 433 P.2d 281 (1967); People v. Fischetti, 47 Ill.2d 92, 264 N.E.2d 191 (1970); State v. McDonald, Iowa, 190 N.W.2d 402 (1971); Bernos v. State, 10 Md.App. 184, 268 A.2d 568 (1970); People v. P., 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255 (1967); State v. Crossen, 10 Or.App. 442, 499 P.2d 1357 (1972); Ison v. State, 281 Ala. 189, 200 So.2d 511 (1967); Stout v. State, 244 Ark. 676, 426 S.W.2d 800 (1968); People v. Routt, 100 Ill.App.2d 388, 241 N.E.2d 206 (1968); Annot., Custodial Interrogation — Miranda Rule, 31 A.L.R.3d 565, at 587-595.”

We conclude that the defendant’s statements to the officers inside of his home were part of a general inquiry and pre-custodial, requiring no Miranda warnings. Thus, the trial court properly admitted defendant’s statement to Officer Kirch into evidence.

Assignment of Error No. 7 is without merit.

ASSIGNMENTS OF ERROR NOS. 8 AND 14

In these assignments of error, defendant complains that the trial court erred in denying his motions for a directed verdict and for a new trial. He alleges that the State failed to prove necessary elements of the crime: the cause of the victim’s death and the defendant’s responsibility therefor.

The State charged defendant with the September 4, 1975 murder of his wife and brought defendant to trial in May of 1975. By Act No. 527 of 1975, the legislature amended LSA-C.Cr.P. Art. 778 by eliminating the directed verdict in cases triable by jury. The effective date of that amendment is September 12, 1975. Defendant submits that the amendment abolishing the directed verdict is a substantive change and, therefore, inapplicable here since the crime occurred prior to the amendment.

This Court has previously rejected defendant’s argument. We have held the amendment procedural in nature and thus applicable to all trials held after its effective date. State v. Marmillion, La., 339 So.2d 788 (1976); State v. Clark, La., 340 So.2d 208 (1976); State v. Marks, La., 337 So.2d 1177 (1976). The trial court properly denied defendant’s motion for a directed verdict.

In reviewing denials of motions for new trials based on the total lack of evidence of an essential element of an offense, this Court’s review is limited to determining whether there is some evidence of each element of that offense. State v. Skelton, La., 340 So.2d 256 (1976); State v. Ledet, La., 337 So.2d 1126 (1976); State v. Collins, La., 306 So.2d 662 (1975).

A fair reading of the evidence adduced at the trial on the merits discloses that: the victim was in good health immediately before the shooting; by his own admission, the defendant shot the victim; after the gun discharged, the victim exclaimed that she was shot; as a result of the gunshot wound, bystanders rushed the victim to the hospital; physicians made all medical attempts to save the victim’s life and necessarily removed the damaged organs; after the physician’s life saving efforts, only the probable, not exact, location of the bullet’s entrance wound could be detected through post mortem examination.

After reviewing the evidence, we find, as did the trial court, that there is some evidence that the defendant shot the victim and as a result of the bullet wound she died. Hence, the trial court properly denied the motion for a new trial.

Assignments of Error Nos. 8 and 14 are without merit.

ASSIGNMENTS OF ERROR NOS. 9 AND 10

In these two assignments, defendant complains of the State’s failure to present rebuttal evidence, after laying a foundation therefor during the cross examination of the defendant and one of his witnesses, that the defendant did pull a gun on others besides the victim.

The questions propounded to defendant and the answers elicited were:

“Q. You didn’t tell Captain Riechert that you shot to scare your daughter off?
“A. I didn’t shoot to scare my daughter off. My daughter came across the street and she hit at me. She went around the house. And I went to pick up — I thought she was running to pick up the gun.
“Q. And the gun went off accidentally?
“A. The gun went off.
“Q. So when Captain Reichert says you told him that you shot the gun in the ground to scare your daughter off, he’s lying?
“A. i didn’t told him.”
(Vol. Ill, pp. 294-295)

Contrary to defendant’s allegation, the State did present evidence to contradict defendant’s answers. During the State’s examination of Captain Riechert, the State asked:

“Q. Did he tell you any circumstances surrounding the firing of the second shot?
“A. Yes sir.
“Q. What did he tell you?
“A. He stated that his daughter had come outside and slapped him and he shot the gun in the ground to scare her away because he didn’t want to hurt . her.”
(Vol. Ill, pp. 192-193)

It was, therefore, unnecessary that the State recall Officer Riechert on rebuttal to offer this same testimony.

The questions propounded to defendant’s witness and the answers elicited were:

“Q. You said that Percy never gave anybody any trouble. Did you ever hear about Percy pulling a gun on anyone?
“A. No, sir. I never heard that.
“Q. Specifically did you ever hear of him pulling a gun on a State Trooper or a Deputy Sheriff in Plaquemines Parish?
“A. No, sir, I didn’t hear that.
“Q. Did you ever hear of him pulling a gun on [a] St. Bernard Parish Deputy?
“A. No, sir.”
(Vol. Ill, pp. 229-230)

In this interrogation, we find that the State did not actually lay an impeachment foundation. The cross-examination was unrelated to impeachment.

The defendant’s reliance upon State v. Guagliardo, 146 La. 949, 84 So. 216 (1920) is misplaced. In Guagliardo, the State laid specific foundations for impeaching witnesses by referring to prior statements, times, places, and persons to whom made, and further announced to the court and to the jury that it intended to impeach the denials of the witness. During rebuttal, the impeaching witnesses were not called. In closing argument, the District Attorney stated that he considered it unnecessary to call the witnesses, leaving the jury with the impression that he could have made good his impeachment.

Assignments of Error Nos. 9 and 10 are without merit.

ASSIGNMENT OF ERROR NO. 11

In Assignment of Error No. 11, the defendant complains that the trial court erred in sustaining the State’s objection to defendant’s reading the penalty provision of LSA-R.S. 14:30.1, the second degree murder statute under which defendant was charged. Under the statute, a life sentence for second degree murder is mandatory, upon the jury’s return of a guilty verdict. The judge has no sentencing discretion.

In State v. Harris, 258 La. 720, 247 So.2d 847 (1971), we rejected an identical contention that the trial court erred in not allowing defense counsel to read to the jury in his closing argument the penalty provisions of the criminal statute under which he was charged. Therein we stated:

“. . . [Sjentence regulations form no part of the applicable law to be argued by counsel before the jury. To allow argument of these matters would inject irrelevant considerations into the jury’s deliberations as to guilt.
“The prevailing rule is that when the penalty is the responsibility of the judge alone, the sentencing law is an improper subject for argument to the jury. Abney v. State, 123 Miss. 546, 86 So. 341; 53 Am.Jur., Trial, § 467, p. 373. The supporting decisions from other jurisdictions are collated in the Annotation, Argument to Jury — Law or Lawbooks, 67 A.L.R.2d 245, 294. These decisions are based upon the sound principle that legal matters irrelevant to guilt should not be pressed upon the jury.”

More recently, we rejected this same contention in State v. Chatman, La., 337 So.2d 1106 (1976). In conformity with our jurisprudence, we again reject this argument.

Assignment of Error No. 11 is without merit.

ASSIGNMENT OF ERROR NO. 12

In Assignment of Error No. 12, the defendant complains that a pistol never introduced in evidence was placed by the State on a table in view of the jury.

At the beginning of the trial, all of the tangible evidence was brought together to, the courtroom and placed on the Clerk’s desk. These items included a knife, bullets, a 32-caliber pistol, the homicide weapon, and a larger pistol found near the scene of the crime. The defense made no objection to the placing of these objects on the desk. During the State’s case, all the tangible evidence was introduced except the larger pistol. After the State closed its case, the defense objected to the presence of the gun in view of the jury.

The 32-caliber pistol, admittedly the homicide weapon, was introduced in evidence. The defense made no objection to the initial placement of the tangible evidence, though none of the items had as yet been admitted at the trial. Hence, since all items remained in place for a substantial time without objection, the trial judge correctly overruled the belated objection. See State v. Mitchell, La., 319 So.2d 357 (1975). Moreover, since the homicide weapon itself was introduced, no prejudice resulted from the mere presence of the other pistol in the courtroom. See State v. Burnette, La., 337 So.2d 1096 (1976).

Assignment of Error No. 12 is without merit.

ASSIGNMENT OF ERROR NO. 13

In Assignment of Error No. 13, defendant alleges that the trial court erred in refusing the jury’s request for additional charges concerning manslaughter.

During the jury deliberations, the jury communicated to the deputy assigned to them their desire for a clarification of the manslaughter charge. The deputy contacted Chief Deputy Wallace Ansardi before forwarding the request to the trial judge. Deputy Ansardi spoke to the jury spokesman, who informed him that the jury requested a copy of the charge. Chief Deputy Ansardi replied that “it would be up to the judge to give it to them.” The other deputy went to the trial judge to relay the jury’s request for the charge. However, in the interim between the time the trial judge learned of their request and instructed the deputy to return the jury to the courtroom for further instructions, the jurors reached their final verdict. When the deputy returned to the jury deliberation room to get the jury, they indicated that they no longer needed additional instructions for they had reached a verdict.

We conclude that the trial judge did not refuse to give additional instructions to the jury, as alleged by the defendant. Rather, we find that the jury withdrew its request as preparations were being made to supply the additional instructions.

Assignment of Error No. 13 is without merit.

ASSIGNMENT OF ERROR NO. 15

In Assignment of Error No. 15, defendant argues that permitting anything less than a unanimous verdict in such a serious ease is contrary to the obligations assumed by the State of Louisiana in the Enabling Act for the Admission of Louisiana into the Union which mandated the common law right to trial by jury.

Act of Congress February 20, 1811, 2 U.S. Stat. 641 § 3 provides:

“Provided, the constitution to be formed, in virtue of the authority herein given, shall be republican, and consistent with the constitution of the United States; that it shall contain the fundamental principles of civil and religious liberty; that it shall secure to the citizen the trial by jury in all criminal cases, and the privilege of the writ of habeas corpus, conformable to the provisions of the constitution of the United States;” [Emphasis added.]

The Sixth Amendment to the United States Constitution provides:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Defendant argues that Louisiana’s jury practice is not in conformity with the provisions of the constitution of the United States as Louisiana does not require a unanimous jury verdict to convict in such a case as this. Louisiana Constitution, Article I, Section 17 (1974); LSA-C.Cr.P. Art. 782.

We disagree. We find that the Act of Congress February 20, 1811, 2 U.S.Stat. 641, an act for the admission of the State of Louisiana into the Union, does not require that the provisions of our state constitution and statutes be identical with the federal unanimous jury requirements.

We conclude that by the terms of the act of admission, our state constitution and statutes need only conform to the requirements of the United States Constitution. There is no constitutional requirement that one be convicted by a unanimous jury. As defendant notes in his brief, the United States Supreme Court has upheld Louisiana’s less-than-unanimous verdicts. Johnson v. United States, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972). This Court has consistently held that our jury rule requiring the concurrence of nine members of a twelve-member jury for a verdict neither violates the Sixth Amendment to the United States Constitution nor the Fourteenth Amendment. The concurrence of nine jurors guarantees the accused a fair trial and due process of law. State v. Dillon, 260 La. 215, 255 So.2d 745 (1971); State v. Jones, 257 La. 966, 244 So.2d 849 (1971); State v. Caston, 256 La. 459, 236 So.2d 800 (1970).

Assignment of Error No. 15 is without merit.

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

TATE, J., concurs and assigns reasons.

CALOGERO, J., concurs with reasons.

DENNIS, J., concurs for reasons stated by CALOGERO, J.

TATE, Justice,

concurring.

V/hile I concur in the affirmance, some comment should be made as to the needless and erroneous denial of pre-trial oyer and examination of (a) the gun used by the accused, which resulted in his wife’s death, and (b) the coroner’s proces verbal.

(1)

The trial court should have allowed the accused pre-trial examination and testing of this weapon. (After all, the gun was taken from him by use of the state’s omnipotent discovery power of seizing evidence.) Such examination and testing may indeed have been helpful to the accused in preparing his defense that the admitted shooting was accidental, when the gun went off. See, e. g., Barnard v. Henderson, 514 F.2d 744 (CA 5, 1975), reversing this court for a failure to allow such pre-trial testing.

I am not prepared, however, to say that, after conviction, the failure to have accorded pre-trial examination is reversible error under the present circumstance. No real showing is made, as the majority suggests, that such testing was of a nature that could not have been accomplished at the trial without disruption or delay by witnesses easily available there.

Further, the blanket pre-trial request was to examine “all evidence taken from the accused or allegedly used by the accused in the commission of an alleged offense, so that [counsel] may have the opportunity of countering any expert testimony offered by the prosecution.” The focus of the motion was not to request examination of the evidence for purposes of preparing an affirmative defense, but rather merely to counter any expert testimony if offered by the state — and none was, as to the gun.

For these reasons, I am unwilling to hold that the erroneous denial of pre-trial examination of the weapon is reversible.

(2)

Likewise, I believe the trial court clearly should have afforded the accused access to the coroner’s proces verbal, which is required to be prepared by that official, La. R.S, 33:1565. The coroner’s proces verbal is admissible at the trial as “competent evidence of death and the cause thereof.” La. C.Cr.P. art. 105.

The coroner is required to furnish a copy of the proces verbal to the clerk of court within thirty days of conducting a postmortem examination, which copy will be of public record. La.R.S. 33:1565. The coroner did not do so in this case.

If (as I understand the record) the prosecutor had a copy of this proces verbal, supposedly of a public record (yet withheld by another state officer contrary to law), it seems to me that fundamental fairness requires the prosecutor to permit access by the accused to this (supposedly public) record admissible in evidence against him.

State v. Cripps, 259 La. 403, 250 So.2d 382 (1971) is not authority to the contrary: There, the proces verbal was of record. Under that circumstance, we held non-erroneous a refusal by the trial court to order the prosecutor to furnish an accused a copy of a document of public record to which the accused had easy access.

The state cannot deny the accused access to a document in its possession, access to which the accused is by law entitled but has in fact been denied. The state should not be able to claim that a governmental denial of lawful access is excused by the breach of legal duty owed by another local public official, who cooperatively furnishes the information to the prosecutor (his fellow official of government), but who fails to furnish it to the public (including the accused) in violation of law.

I would be prepared to dissent because of this wrongful denial of access to evidence admissible against the accused to which he is lawfully entitled, if the slightest prejudice were shown or even claimed. However, in the present case, the defendant’s shooting of his wife as the cause of her death is not disputed — the defense is only that the gun went off accidentally.

I therefore cannot say that the accused was prejudiced by this wrongful denial to him by the state of a public record to which he was by law entitled. I therefore concur, despite the clearly erroneous ruling herein stated.

CALOGERO, Justice,

concurring.

I join Justice TATE in his concurring opinion, and I concur additionally for the reasons which follow.

In assignment of error number eleven, defendant complains that he should have been able to make known to the jury the mandatory penalty for the offense with which he was charged, second degree murder. In State v. Prater, 337 So.2d 1107 (La.1976) the majority of this Court agreed that “a charge and argument may be required and permitted, despite Blackwell, when the statutory offense requires a mandatory legislative penalty, with no judicial discretion as to its imposition following verdict.” 337 So.2d at 1110 (Tate, J., concurring). Because defendant Hodges’ trial took place in May of 1976, prior to the Prater change which was made prospective, the trial court did not err in its decision not to allow defense counsel to inform the jurors of the mandatory sentence imposed upon conviction.

It is for these reasons that I concur. I do not believe as the majority does that this case is distinguishable from Prater simply because closing argument rather than request for jury instruction was the means by which defense counsel sought to apprise the jury of the law’s penalty provisions.

      . In State v. Prater, La., 337 So.2d 1107 (1976), the majority of this Court held that a trial court’s denial of defendant’s request that the penalty provision of the statute under which he was charged be included in the judge’s charge to the jury was proper. However, three justices dissented and a fourth justice concurred. In his concurrence, he stated that “in any case tried after the finality of the present decision I shall regard the bench and bar as on notice that, in the view of a majority of this court, a charge and argument may be required and permitted, despite Blackwell [State v. Blackwell, La., 298 So.2d 798], when the statutory offense requires a mandatory legislative penalty, with no judicial discretion as to its imposition following verdict. Thus, to this extent at least, Blackwell may be regarded as overruled prospectively by the present opinion.”
      Since the judge’s jury charge was at issue, Prater is distinguishable. The instant case involves the reading of the penalty provision by defense counsel during his closing argument. In the light of the concurring opinion, it should also be noted that the present trial occurred prior to that decision.

      . This act is reproduced in Vol. 3 of the Louisiana Constitution (1974) at p. 22.

      . This court majority was made up of four concurring/dissenting Justices. See also State v. Unzueta, 337 So.2d 1102 (La.1976); State v. Chatman, 337 So.2d 1106 (La.1976). The prospective application of the rule which was announced took effect from the date of finality of the Prater decision, September 27, 1976.


text:
    Lewis Etienne ALEMAN v. LIONEL F. FAVRET CO., INC. and Employers Casualty Co.
    No. 59020.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      W. Paul Andersson, Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendants-respondents.
    Robert McComiskey, Jean E. Senac, Jr., and Frank A. Silvestri, New Orleans, for plaintiff-relator.
   DIXON, Justice.

On August 24, 1964 Lewis E. Aleman filed suit against the two defendants claiming that he was totally and permanently disabled as a result of injuries suffered in a work related accident which occurred on July 25,1963. Lengthy delays in the litigation ensued and on October 16, 1974 the trial court found for the plaintiff and awarded him four hundred weeks compensation at $35.00 a week, less certain credits. The defendants appealed this judgment to the Fourth Circuit Court of Appeal. While the appeal was pending the plaintiff died, but his wife and children continue to pursue this cause of action. The Court of Appeal reversed and gave judgment for the defendants, dismissing the plaintiff’s suit at his cost. Aleman v. Lionel F. Favret Co., Inc. et al., 338 So.2d 785 (La.App. 4th Cir. 1976). Plaintiff’s application for rehearing was refused and this court granted writs to review the judgment of the Court of Appeal. 341 So.2d 899 (La.1977). For the reasons set forth below the judgment of the Court of Appeal is vacated and the judgment of the district court is reinstated.

On July 25, 1963 the plaintiff was employed as a general superintendent with Lionel F. Favret Company. Plaintiff had been employed by the company for the previous thirteen years. The testimony reveals that as superintendent Aleman was charged with the supervision of between forty and one hundred twenty men at any given construction site. On the date of the incident in question (July 25, 1963), plaintiff was supervising a job for his employer at 4747 Earhart Boulevard in New Orleans. A fuse box on the site was malfunctioning and Mr. Aleman attempted to repair it. The plaintiff testified that he went out to the fuse box with his timekeeper, Ray Bowman, and while using a set of pliers to remove a fuse from the box a short circuit occurred and an electrical flash pitted the plaintiff’s eyeglasses and caused him to spin backward and twist his back. The plaintiff contends that this accident is the cause of his total and permanent disability.

Mr. Aleman testified that he does not remember the time immediately after he was hit with the electrical flash and the next thing that he remembers is being in the timekeeper’s shack, still dazed. Mr. Bowman filled out a claim report for the damage to Aleman’s glasses, which report listed July 25,1963 as the date of the occurrence. Plaintiff did not file an injury report in connection with this accident until September, 1964. The plaintiff testified that he experienced slight pain in his back immediately after the accident, which pain became progressively worse over the next few months. However, Mr. Aleman continued to work from the date of the accident until just after New Year’s, 1964 (approximately five and one-half months after the accident). The plaintiff testified that at that time it became too painful for him to even get out of bed.

On February 4,1964 Dr. R. H. Corales, Jr. performed a partial hemi-laminectomy on the plaintiff. Although the surgery appeared to be successful, the plaintiff again began experiencing pain in his lower back and right leg some months later and on June 9, 1964 a full laminectomy was performed on Aleman by the same doctor. Mr. Aleman never returned to work after the second operation.

The Court of Appeal dismissed the plaintiff’s suit, finding that the evidence adduced “failed to establish that his disability resulted from a work related accident.” 338 So.2d at 788. As the Court of Appeal correctly pointed out, in order to recover workmen’s compensation benefits the testimony as a whole must show that an employment accident occurred and that the accident had a causal relation to the disability. E. g. White v. Freeport Chemical Co., 319 So.2d 563 (La.App. 4th Cir. 1975). However, on appeal, the Court of Appeal must give great weight to the factual conclusions reached by the trial court; and “when there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). The reviewing court must give great weight to the conclusions of the trier of fact, and should not disturb reasonable evaluations of credibility and reasonable inferences of fact, even though other evaluations and inferences are as reasonable.

The trial court here, faced with conflicting testimony, found that the plaintiff had carried his burden of proof in establishing that an accident had occurred and that it had a causal relation to his injury. The Court of Appeal reversed, relying on what it perceived to be a number of inconsistencies and omissions in the evidence.

First, it should be noted that the trial of this matter took place some eleven years after the date of the accident and that the plaintiff was sixty-six years old at the time of trial. The plaintiff testified that Ray Bowman, the timekeeper at the job site, had been standing behind him when the accident occurred. At trial Bowman denied that he had witnessed the incident and further testified that after the accident Ale-man came into the timekeeper’s shack, did not appear dazed, did not stumble around, and did not complain of any injury. However, Mr. Bowman had been deposed in connection with this case previously and he made the following statement in his deposition:

“He stumbled around, you know, but I couldn’t — I couldn’t recall now, you know, if I saw him fall over or nothing then, you know, but I know that he did get a shock in his glasses, you know, from that electricity when he pulled that circuit breaker.”

This statement, made closer to the time of the accident, is in direct conflict with the witness’ trial testimony and is corroborative of the plaintiff’s account of the accident.

Ernest Voss began working at Favret in July, 1963, soon after the accident. The Court of Appeal noted that Voss testified that he noticed no back difficulties in the plaintiff between July and December, 1963,¡ but that the plaintiff did have visible back problems beginning in December, 1963, after the plaintiff returned from his recently purchased fishing camp in Slidell. Plaintiff had testified that his back pains became progressively worse from July, 1963 through the beginning of January, 1964, after which the pain became too great for him to work. In addition, the Court of Appeal relied on the fact that although the accident occurred in July, 1963, the plaintiff did not file an injury report until September, 1964.

At trial plaintiff admitted that on the date of the accident he didn’t really think that he had been injured. Initially the plaintiff thought he only had a minor backache, but over a period of time the pain in his back became progressively worse. In addition, the plaintiff testified that in part he blamed himself for the accident, because he felt that he should not even have attempted to repair the fuse box.

When asked at trial why he continued to work from July through December, since the pain was getting worse, the plaintiff replied:

“Well, I love construction and I like to know — there wasn’t anybody I could actually turn that job over to. And, the pain would hurt me just as well home as it would over there. Of course, now, I didn’t go pulling nothing, try to take a door down or nothing like that. Just take it easy, you see.”

Regarding Voss’ testimony that the plaintiff did not exhibit outward signs of pain until December, there is no evidence of an independent accident at the camp causing the injury. In addition, the evidence revealed that December, 1963 was an unseasonably cold month and the plaintiff testified that it was only when the weather became very cold that the pain became intense.

In reversing the trial court, the Court of Appeal also relied on the fact that the plaintiff signed a form from his group hospitalization carrier, John Hancock, on which he checked two boxes indicating that the injury was not job connected and did not result from a work related accident. (John Hancock was not the Favret compensation insurer and its coverage extended only to non-work related accidents. The money received from John Hancock was used to pay for plaintiff’s first back operation in 1964). When asked if he had read the form before he signed it, plaintiff responded:

“Well, this is what occurred. When I come over there and I give it to the timekeeper he says to me, ‘Lou, you got to sign it.’ And, I said, ‘Well, I’m not signing a thing.’ And, he said, ‘Why, it didn’t happen on the job?’ I said, ‘Well, ask your two timekeepers. They will tell you about it.’ So, he went and seen Harold (plaintiff’s employer) and Harold says to me you either sign this or you won’t get a nickel. Now, of course, the way things are going now, I don’t know if he changed — if Lionel Favret carried their own insurance or whether they carried it through Hancock or Metropolitan or what.”

Dr. Corales, the operating physician, could not definitely determine what caused the plaintiff’s back condition. However, Dr. Vogel, an expert witness for the plaintiff, testified that it was medically probable that the necessity for the plaintiff’s two back operations was caused by the injury suffered as a result of the accident.

The testimony of Mrs. Aleman (with some minor exceptions, principally concerning the exact dates of various events) corroborates and is consistent with the testimony of the plaintiff. There is no indication in the record that in his thirteen years as an employee of Favret the plaintiff had ever previously filed for compensation. Further, in his forty years as a construction worker the testimony reveals that the plaintiff had only been injured once previously, necessitating a total of three lost days of work.

On the basis of the record made in the district court, there was sufficient evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnished a reasonable factual basis for the finding that the plaintiff was totally and permanently disabled as a result of the July 23,1963 accident. The Court of Appeal was in error in substituting its judgment for that of the trial court on these factual issues.

For the foregoing reasons, the judgment of the Court of Appeal is set aside and the judgment of the district court is reinstated, at the cost of defendants.

      . In addition, on the claim form he filled out for plaintiff’s glasses, Bowman listed himself in the space below the following heading: “IMPORTANT! NAMES AND ADDRESSES OF WITNESSES: Secure names and addresses of witnesses or persons in immediate vicinity who may have seen accident or heard any statement made by injured person.”


author: CALOGERO, Justice.

text:
    Thomas J. MILLER v. Dutriel Michael KEATING et al.
    No. 59042.
    Supreme Court of Louisiana.
    June 20, 1977.
    Rehearing Denied Sept. 2, 1977.

      John A. Jeansonne, Jr., Law Office of Welton P. Mouton, Lafayette, for defendant-respondent.
    Raymond Morgan Allen, Allen, Gooch & Bourgeois, Ltd., Lafayette, for plaintiff-applicant.
   CALOGERO, Justice.

The issue in this case is whether the defendant-employer, Kustom Homes, Inc., and its insurer, Hartford Accident and Insurance Indemnity Company, are liable in damages for the tortious acts of Kustom’s employees who planned and committed a battery on plaintiff Thomas J. Miller, a former officer and employee of the corporation.

Miller and Dutriel Michael Keating had been organizers, principal stockholders and executive officers in a small Louisiana corporation engaged in the construction of steel frame homes, Kustom Homes, Inc. Johnny Lee Howren and James Guillet were carpenters employed by the corporation. Hartford Accident and Indemnity Insurance Company was the liability insurer of Kustom Homes, Inc., having issued a comprehensive general liability insurance policy, which included general liability and automobile liability provisions.

After a disagreement between Miller and Keating, Miller left the employ of Kustom Homes, Inc., resigning his position as vice-president and construction superintendent. About three months later, on Monday April 13,1973 at about ten o’clock in the evening, he was brutally beaten with a pipe as he returned to his trailer home in Lafayette, Louisiana.

Miller sued the corporation, its insurer, and the three corporation employees, Keat-ing, Howren and Guillet, alleging that the employees in the course and scope of their employment for Kustom Homes, Inc. had conspired and together perpetrated the battery upon him in an effort to kill him and thereby generate certain insurance proceeds for the benefit of the corporation. The case was tried before a civil jury which awarded plaintiff damages in the sum of $25,500.00 jointly and solidarily against Keating, How-ren, Guillet and Kustom Homes. The jury absolved the insurer Hartford. Judgment was rendered and signed by the trial judge in accordance with that verdict.

Keating and Howren did not appeal; plaintiff Miller appealed contending that his claim against Hartford should not have been dismissed and contending that the damage award was inadequate. Guillet and Kustom Homes, Inc. appealed complaining that judgments should not have-been entered against them.

The Court of Appeal rejected Miller’s contentions, affirming both the quantum award and dismissal of the claim against Hartford. That Court rejected Guillet’s contention and allowed him to remain cast in judgment. Additionally, the Court of Appeal reversed the judgment as to Kus-tom Homes, finding no liability on the part of the corporation.

Only plaintiff Miller applied to us for review of that judgment. He argues that the assault and battery was committed by Keating, Howren and Guillet within the course and scope of their employment with Kustom Homes; that Kustom Homes was liable for the actions of all three named individual defendants; and that the corporation’s insurer should be jointly and soli-darily liable, on the basis of its automobile or general liability policy, with the corporation. We granted writs. 341 So.2d 901 (La.1977).

The sordid facts concerning this brutal murder attempt upon the life of plaintiff are substantially set forth in the Court of Appeal opinion and will not be repeated herein. 339 So.2d 40 (La.App.3rd Cir. 1976). With minor reservations we find those factual conclusions supported by the record. In any case the judgment as to Keating, Howren and Guillet is final. And for the purpose of our consideration of the case at this point the remaining parties do not dispute the Court of Appeal’s factual determinations relative to the battery incident.

In order to analyze whether the conduct of the individual defendants fell within the course and scope of their employment with Kustom Homes we find it necessary to relate certain of the pertinent facts. Of the five stockholders in Kustom Homes, Inc. two of them, Keating and Miller, owned a majority of the stock; Keating was president of the corporation and Miller vice-president. At the time of the incident Kustom Homes had loans outstanding in an amount somewhere between $125,000.00 and $130,-000.00. President Keating was the corporate executive charged with raising and borrowing money.

Before Miller’s resignation from the company there was an outstanding life insurance policy in the sum of $25,000.00 on which the joint beneficiaries were Miller’s father and Kustom Homes. Shortly after Miller left the company and just a month or two before the attack upon him, Kustom Homes took out $75,000.00 worth of additional insurance on Miller’s life with the corporation as beneficiary; thus the corporation stood to receive $87,500.00 in insurance proceeds in the event of Miller’s death. Keating told Howren in the presence of Guillet (he says jokingly) that he wanted to have Miller done away with because of Keating’s belief that Miller had stolen money from the company and also because of the existence of certain insurance on the life of Miller. Keating also acknowledged that he was upset at Miller’s decision to leave the corporation.

It was established that Howren and Guil-let were salaried employees of Kustom Homes and that Keating was their boss. Howren testified that throughout the incident he was following his boss’s orders. On the night in question Howren and Guillet were at the company office working, preparing furniture to be moved from the office, just before they left for a pre-ar-ranged meeting with Keating and perpetration of the attack upon Miller; the battery took place at about 10 p. m. A week earlier under similar circumstances they had failed to accomplish their objective because Miller had returned home before Howren and Guillet had arrived. Even prior to that unsuccessful attempt, Howren and Guillet had traveled to Houma, Louisiana and around the Lafayette area to find out, if they could, where Miller was then residing. On the night in question Guillet and How-ren were traveling in a company vehicle and Keating in a second company vehicle; the vehicles were equipped with communication radios and the radios were used to coordinate activities of the three, particularly to allow Keating to advise Howren and Guillet when Miller left for home from the residence of his new employer.

The Court of Appeal found that the acts committed by Keating, Howren and Guillet were not committed during the course and scope of their employment or in the exercise of the functions in which they were employed. The Court of Appeal relied upon its interpretation of LeBrane v. Lewis, 292 So.2d 216 (La.1974), a case wherein a supervisor kitchen steward for the Capitol House Hotel in Baton Rouge, Louisiana stabbed a subordinate employee in an altercation following the steward’s firing the employee and while escorting him off the premises. The Court of Appeal noted that in LeBrane we considered four factors, “(1) whether the tortious act was primarily employment-rooted; (2) whether the violence was reasonably incidental to the performance of the employee’s duties; (3) whether the act occurred on the employer’s premises; and (4) whether it occurred during the hours of employment.” 339 So.2d at 44.

Then they applied those tests to the facts in the instant suit, and concluded that the acts committed by Keating, Howren and Guillet were not committed during the course and scope of their employment or in the exercise of the functions in which they were employed for Kustom Homes. This conclusion, we believe, was erroneous.

We did not mean to suggest in LeBrane that in all cases of an employer’s vicarious liability for the intentional torts of his employee that these four inclusive factors must be met before liability may be found. In that case which involved the conduct of a kitchen steward, a relatively lower echelon employee of the employer hotel, we stated our reasons for finding liability in this way:

“The dispute which erupted into violence was primarily employment-rooted. The fight was reasonably incidental to the performance of the supervisor’s duties in connection with firing the recalcitrant employee and causing him to leave the place of employment. It occurred on the employment premises and during the hours of employment.
In short, the tortious conduct of the supervisor was so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. It can thus be regarded as within the scope of the supervisor’s employment, so that his employer is liable in tort to third persons injured thereby.” 292 So.2d at 218

It was our general evaluation of the circumstances of the tort in LeBrane as being one which evolved out of a dispute relating to the employment, one which was reasonably incident to the steward’s duties as a hotel employee, and one which was closely connected to those duties (rather than a purely personal matter) which prompted us to regard the incident as one where the risk of harm was fairly attributable to the employer’s business.

Each question of an employer’s response in damages for the intentional torts of his employee must be looked at on its own merits to determine whether the conduct is to be regarded as within the scope of the employee’s employment. While considerations such as whether the tort occurred on employee premises and during working hours are relevant when assessing the conduct of a relatively subordinate employee such as the kitchen steward in LeBrane, they are largely irrelevant in assessing conduct of a corporation’s chief executive officer, the president of the corporation such as defendant Keating. In the latter case the conduct must be shown to be employment rooted but not necessarily exclusively so. And it should be reasonably incidental to the performance of the officer’s official duties. Beyond these considerations there are no magical requirements. The mission and authority which a legal entity such as a corporation must be presumed to have given its chief executive officer and top human functionary is certainly much broader than that which an employer generally is likely to give or have given lower echelon employees.

In the case at hand, Keating’s conspiracy to kill Miller was related to Miller’s former employment with the corporation and Miller’s presumed non-loyal departure, and it was in large part, although perhaps not exclusively, actuated by Keating’s desire to improve the corporation’s financial picture, an area of the corporation’s concern which had almost exclusively been assigned to Keating, its president, from the inception of the company. Certainly the risk of harm faced by plaintiff Miller was fairly attributable to Keating’s employment by Kustom Homes.

Keating’s conduct, we conclude, was within the scope of his employment. His employer Kustom Homes, Inc. is thus answerable in damages for the injuries sustained by Miller. La.C.C. art. 2320; Le-Brane v. Lewis, supra; Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968).

Because we have found Kustom Homes, Inc. vicariously liable for the tort of its president Keating, we find it unnecessary to consider the question of whether the torts of Howren and Guillet were likewise committed in the course and scope of their employment with Kustom Homes, Inc.

We turn now to the matter of the liability of Hartford Accident and Indemnity Insurance Company. Hartford had issued to Kustom Homes, Inc. a comprehensive general liability insurance policy which included comprehensive general liability and comprehensive automobile liability insurance coverage. The provisions with respect to comprehensive general liability provide that the company will pay on behalf of the insured “all sums which the insured shall become legally obligated to pay as damages” because of bodily injury caused by an occurrence. Inasmuch as we have found that Kustom Homes, Inc. is legally obligated to pay damages to the plaintiff, the insurer Hartford is thus liable in damages under the general liability insurance provisions of that policy. The contrary determination by the jury is unsupported by law.

Because of our finding Hartford Accident and Indemnity Insurance Company liable under the general liability provisions of the insurance policy, we find it unnecessary to consider plaintiff’s contention that operation of the company’s pick-up trucks by Guillet and Howren and/or Keating on the night of the battery caused the insurance company to be responsible for plaintiff’s damage under the automobile liability provisions of that policy.

For the foregoing reasons the judgment of the district court is reinstated except that plaintiff shall have judgment jointly and solidarily against Hartford Accident and Indemnity Insurance Company as well as the other defendants cast in the district court judgment. Costs are to be borne by the defendants.

AMENDED AND AFFIRMED.

SUMMERS, J., dissents for reasons assigned by court of appeal, La.App., 339 So.2d 40.

      . We are not convinced from the record that it was Keating rather than Howren who wielded the pipe during the attack. Nonetheless there was ample evidence, and certainly the more credible, that Keating orchestrated the conduct of the three on the night in question and saw to the consummation of the attack. Keating’s alibi testimony and other evidence, and his contention that his sole involvement was simply a joking direction to Howren to do away with Miller is not supported by the record.

      . As the defendant properly points out, this fact does not necessarily indicate that the corporation was insolvent, for there was evidence that much of the borrowed capital had been employed in purchasing land for residential development, that the land was valuable and that the company still owned it.

      . There was also some testimony to the effect that the articles of incorporation of Kustom Homes, Inc. required, in the event of a shareholder’s death, the surviving heirs to offer to the corporation all of the shares of stock owned by the decedent at a determinable price.