author: TATE, Justice. SUMMERS, Justice CALOGERO, Justice.

text:
    STATE of Louisiana, Appellee, v. Arthur J. MONROE, Jr., Appellant.
    No. 56419.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Dissenting Opinion Nov. 24, 1975.
    On Rehearing March 29, 1976.
    Sanders, C. J., and Marcus, J., dissented from original opinion.
    Summers, J., dissented from original opinion and assigned written reasons.

      Wilfret R. McKee, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Monroe was convicted of armed robbery, La.R.S. 14:64, and sentenced to twenty years at hard labor.

Reversible error is presented by bills of exception numbers one and two. They relate to a substantial curtailment of voir dire examination of prospective jurors by the defense. As will be noted, voir dire examination is an important trial right given to both the state and the defendant to aid them in securing an impartial trial jury and to uncover predispositions -or attitudes of prospective jurors which might serve as the basis for causal or peremptory challenge.

Context Facts

The trial court’s rulings foreclosed lines of inquiry concerning the prospective jurors’ attitudes toward the presumption of innocence, to which those accused of crime are entitled before our courts. The rulings were especially prejudicial in the light of the context facts of this prosecution.

The robbery occurred in the early afternoon. The victim, a route salesman, was robbed at gunpoint of his wallet and eight dollars or so in change. He did not see the face of the robber, nor could he ever identify him. He did, however, note that the robber was wearing a red, white, and blue plaid shirt and so reported to the police shortly after the robbery.

In roving the neighborhood about thirty minutes later, a police officer saw the defendant Monroe, wearing a shirt similar to the one described by the victim. Monroe was standing on the sidewalk, three blocks from the robbery, in conversation with another man. The officer approached Monroe, grasping his revolver, to interrogate him. He saw an expression of shock and surprise on the face of Monroe, who started to walk away. When the officer ordered Monroe to stop, the defendant commenced running away.

Within a minute or so, under continuous observation of the police, Monroe was stopped. He had a pistol and one dollar and ninety cents in change. The wallet and amount of change stolen in the robbery were never located, nor did the officers see the suspect drop them during the chase, nor did immediate examination of his path locate them.

The defendant Monroe took the stand. He stated he was talking to a friend on the street, about a block from his own home, on his way to his employment. On his person was some marijuana and a pistol (which he carried, he said, to protect himself because of a quarrel over a girlfriend). Because of this illegal possession, he said, he ran when he thought the police officer was going to search him. Other uncontradicted evidence produced by Monroe showed that he had never been arrested before and was of quiet, law-abiding good character.

The defense thus raised was that, although the state undoubtedly proved a robbery beyond a reasonable doubt, the accused himself was a suspect simply because he wore a shirt similar to one worn by the robber. (In fairness to the state, it also relied upon a fingerprint taken from the truck which matched that of the left index finger of the defendant.)

The Issue

The defense counsel had first asked the prospective jurors if they could acquit the defendant if the state failed to prove its case against him beyond a reasonable doubt. After receiving their affirmative responses, the defendant attempted to explore more concretely the juror’s understanding of this general principle. Sua sponte, the trial court curtailed further voir dire examination along the lines of inquiry raised by the following two questions :

“Does it present any problems to you or do you have difficulty in accepting the fact that it is better to see a crime go unpunished than to find the wrong man guilty. Can you accept that?” (Bill of Exception No. 1.)

“If the State should fail to prove who did in fact commit the crime and you are satisfied that we didn’t, could you find him not guilty?” (Bill of Exception No. 2.)

The record does not indicate that any further voir dire examination was permitted on the issue.

The trial court disallowed the first question as argumentative and the second as repetitious. (The latter reasoning was solely because the defense had already secured juror assent to the general principle that they must acquit if the state failed to prove the defendant’s guilt beyond a reasonable doubt.)

In State v. Drumgo, 283 So.2d 463 (La. 1973), decided some time prior to the present trial, in accordance with long-established jurisprudence we held that this type of questioning was proper to explore the jurors’ attitudes towards the presumption of innocence to which the accused is entitled, La.C.Cr.P. art. 804(A). The purpose would be to establish the basis if any for exercise of a challenge for cause, La. C.Cr.P. art. 797(2) (as well as, of course, for an intelligent exercise of peremptory challenges, La.C.Cr.P. art. 799).

In Drumgo, although we recognized the error, we held it harmless, partly because, there, our examination of the entire voir dire examination indicated that in fact defense counsel was afforded wide latitude in his voir dire examination. Here, however, neither the record nor the trial court’s per curiam indicate other than that the questions were disallowed as repetitious or argumentative probing of the veniremen’s assent that they understood the generally expressed general principle that an accused must be acquitted if the state failed to prove its case beyond a reasonable doubt.

Thus, we are not, here, faced with a situation where the questions were truly repetitious nor where wide latitude or voir dire examination had in fact afforded the accused a reasonable opportunity to uncover predispositions or misunderstandings of the veniremen which might militate against their impartial service as jurors or might afford a reasonable basis by which the defendant might exercise his constitutional right to challenge jurors peremptorily, see La.Constitution of 1921, Art. I, Section 10 and Louisiana Constitution of 1974, Art. I, Section 17. The foreclosing of the lines of inquiry effectively denied the accused the voir dire right of ascertaining the prospective jurors’ understanding of an attitude toward the presumption of innocence, as disclosed by minimal but specific questioning as to its application— including not only that the state prove that an armed robbery had occurred beyond a reasonable doubt, but also that the accused himself beyond a reasonable doubt had committed it.

As we noted in State v. Brumley, 320 So.2d 129 (1975) in likewise reversing a conviction because of the denial to an accused of voir dire rights:

“A defendant who is unable to inquire of potential jurors as to any tendentious attitude toward these criteria is unable to effectively make challenges for cause and peremptory challenges Defendant’s questions were not an attempt to lecture on the law . . . nor were they an attempt to induce the jurors to commit themselves in advance. Nor does it offer adequate security toward obtaining an unbiased jury, for a potential juror, in response to the general question whether he will accept the law as given him by the court, to recite that he will accept such instruction when the juror has no concept of the complex nature of the law and where the issue is so interrelated to basic rights * * *

The state suggests that the error was cured by the trial court’s instructions to the prospective jurors that they must accept the law as given to them by the court, to which they assented, and by general instructions as to the presumption of innocence. This suggestion overlooks the historic function of voir dire examination.

As we stated in State v. Hills, 241 La. 345, 129 So.2d 12, 31 (1961) :

“It is a general view as to voir dire examination that the defendant in a criminal prosecution is entitled to make reasonable and pertinent inquiries of the prospective juror so that he may exercise intelligently and wisely his right of peremptory challenge — since each party has the right to put questions to a juror not only to show that there exists proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will make a peremptory challenge. For this reason, a wide latitude is allowed counsel in examining jurors on their voir dire, and the scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision, this may be uncovered. It is by examination into the attitudes and inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner. The Constitution itself (La.Const. of 1921, Art. 1, Sec. 10) guarantees to the accused the right to peremptorily challenge jurors . . . . The intelligent exercise of the right of rejection, by use of those twelve peremptory challenges, is the meat of the privilege, and can be substantially weakened by a restriction of questions — the answers to which might be regarded as informative of a juror’s attitude and therefore of vital importance to his defense.”

See also other instances where convictions were reversed because of improper curtailment of voir dire examination, such as: State v. Jones, 282 So.2d 422 (La. 1973); State v. Crittle, 263 La. 418, 268 So.2d 604 (1972) (opinion authored by Hamlin, J.); State v. Henry, 196 La. 217, 198 So. 910 (1940); State v. Guidry, 160 La. 655, 107 So.2d 479 (1926). See also American Bar Association Standards for the Administration of Justice Relating to Trial by Jury, Standard 2.4 and official commentary thereto (1968).

.These cited decisions hold that in Louisiana the accused’s intelligent exercise of his substantial right to exercise peremptory challenges or challenges for cause cannot be curtailed by the exclusion of non-repetitious voir dire questioning reasonably exploring potential misunderstandings of law, predispositions, or prejudices of prospective jurors relevant to the issues of the case in which they will serve.

We therefore hold that, since the present accused was denied his exercise of this basic trial right, his conviction must be reversed and the matter remanded for a trial in accordance with law.

This trial was held prior to the adoption of the 1974 constitution. Nevertheless, the importance of the traditional rights here asserted is emphasized by their explicit recognition by the Louisiana Constitution of 1974, Art. I, Section 17: “ * * * The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. * *

Other Bills of Exceptions

Other Bills:

Six other bills of exceptions were reserved and perfected.

We need here note only that two of them raise substantial issues of trial conduct which probably will not arise on the re-trial: Bill No. 4, where the trial court sustained an objection to a question attempting to lay a foundation for securing as inconsistent with trial testimony a pretrial statement of the accused, cf. State v. Sbisa, 232 La. 961, 95 So.2d 619 (1957); Bill No. 5, where the defense was denied an opportunity to inspect (or at least have the trial court inspect in camera) a document used by the witness to refresh his memory on the stand and after doing so gave testimony which varied from his earlier trial testimony, see State v. Perkins, La., 310 So.2d 591 (1975).

The other bills, at least as raised, do not present substantial issues.

Decree

For the reasons assigned, we reverse the conviction and sentence and remand for a new trial.

Reversed and remanded for a new trial in accordance with law.

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

SUMMERS, J., dissents and will assign reasons.

SUMMERS, Justice

(dissenting).

In order to support a contention that he had been denied a wide latitude on voir dire examination, an appellant must make the entire voir dire examination a part of his assignment of error. Such a contention may be likened to the problem presented by a contention that there is no evidence of an essential element of the crime to support the verdict of the trier of fact. A full record is required for this court to conclude that there is no evidence at all to support proof of an essential element of the crime.

By the same logic, and for the same reasons, it cannot be said that appellant’s inquiry on voir dire was not given the wide latitude the law requires unless the entire voir dire examination at issue is presented for review.

Here, on the basis of two questions propounded to the prospective jurors, the Court finds that “The foreclosing of the lines of inquiry effectively denied the accused the voir dire right of ascertaining the prospective jurors’ understanding of an attitude toward the presumption of innocence . . . .”

The Court also finds: “Thus, we are not, here, faced with a situation where the questions were truly repetitious or where wide latitude or voir dire examination had in fact afforded the accused a reasonable opportunity to uncover predisposition

These findings of the court are, in my view, based upon conjecture and speculation. Appellant did not make the entire transcript of the relevant voir dire examination a part of his assignment of error, and the entire voir dire examination is not a part of the record on appeal. Only by a review of the entire testimony of the voir dire examination can it be ascertained whether a proper latitude has been accorded defense counsel in his inquiry into the competency and impartiality of the prospective juror.

Under these circumstances, where appellant has not made the entire voir dire part of his assignment of error, and it is not a part of the record, the Court should, instead of speculating that the latitude allowed defense counsel has been unduly restricted, rely upon the per curiam of the trial judge. Here the trial judge painstakingly explained his ruling on these questions, pointing out that “Further during the voir dire all of the jurors stated that they could accept these principles of law and more particularly the presumption of innocence and the requirement of proof of guilt beyond a reasonable doubt.” He stated, also, that the questions were repetitious and were not permitted for that reason. Other cogent reasons for not allowing the particular questions at that particular time were assigned. According to the per cur-iam, the jurors were carefully instructed on that point in his charge before they retired.

But these isolated rulings of the trial j.udge do not mean that he was denied a proper latitude on the same proposition elsewhere in the voir dire examination. Only a review of the entire voir dire can serve to support such a finding.

I respectfully dissent.

ON REHEARING

CALOGERO, Justice.

On application of the state we granted a rehearing in this matter to reconsider the alleged error in the conduct of the trial which caused us originally to reverse defendant Monroe’s conviction and order his case retried. Originally we found error in the trial court’s curtailment of defense counsel’s questioning of prospective jurors during voir dire examination, specifically, the judge’s decision not to allow these two questions concerning the presumption of innocence :

“Does it present any problems to you or do you have difficulty in accepting the fact that it is better to see a crime go unpunished than to find the wrong man guilty. Can you accept that?” (Bill of Exception No. 1.)
“If the State should fail to prove who did in fact commit the crime and you are satisfied that we didn’t, could you find him not guilty?” (Bill of Exception No. 2.)

At the time we originally heard this matter, we had before us only a partial transcript containing these questions, not a complete transcript of the voir dire examination. Since we felt that the trial judge’s disallowance of these two questions foreclosed defendant’s inquiry into the jurors’ understanding of the important area of presumption of innocence, we reversed Monroe’s conviction.

With the expressions of law contained in that original opinion we are still in accord. And the opinion was correct both as to the law expressed and the result therein on the basis of the record and partial transcript then before us. On application for rehearing, however, the state presented more extensive excerpts from the voir dire, and after oral argument we ordered the record supplemented by the entire transcript of the voir dire examination. Upon reviewing that full transcript, we discovered that defense counsel was indeed afforded wide latitude in his questions on voir dire, particularly with respect to the prospective jurors’ attitudes toward the presumption of innocence. Defense counsel asked this question of the jurors:

“Now, realizing that the State has already indicated to you that the defendant is to presumed innocent and the Court will instruct you on the presumption of innocence at the close of the trial, in that instruction, could you accept such instructions such as the defendant sits here, now that he is to be presumed innocent? Can you accept that? Does anybody have any difficulty with it?”

After a negative response, defense counsel continued:

“Now as the State explained to you that the crime of armed robbery that they will attempt to prove certain elements and in the State’s own words, they have indicated six elements, I ask you now if the State should fail to prove one of those elements, just one, would you find the defendant not guilty? If there is anyone who has difficulty with that would you raise your hand?”

After another negative response, defense counsel again questioned the jurors:

“Of course, the Court will instruct you that, all of these elements mentioned by the Assistant District Attorney must be proved to your satisfaction beyond a reasonable doubt and if any has not been proved to your satisfaction and beyond a reasonable doubt, you will have the duty to find the defendant not guilty. Now, could you accept the law as to the defendant not having anything to prove? In other words, the defendant doesn’t have to prove that he is not guilty, the State has to prove that he is guilty. Can you accept that? Can each juror accept that or prospective juror accept that? Does anybody have any difficulty with that? Would you please raise your hands ?”

Furthermore, the areas of inquiry on voir dire were not limited by the trial judge. Counsel was permitted extensive opportunity to probe the jurors’ attitudes so as to permit selection of an impartial jury. State v. Jones, 282 So.2d 422 (La. 1973). While the two questions in their form and substance were permissible inquiries on voir dire examination, their dis-allowance by the trial judge is not reversible error because adequate exploration of the area of presumption of innocence was otherwise permitted.

Therefore, although we re-emphasize that we consider our original opinion a correct statement of the law, we find that this defendant was afforded sufficient latitude in his questioning of prospective jurors on voir dire, especially as it related to presumption of innocence. Therefore, the judge’s decision to disallow the two questions at issue here does not constitute reversible error.

BILL OF EXCEPTION NO. 3.

During voir dire examination, defense counsel attempted to make a note of evidence which would reflect that all ju-ors that had been excused by the state up to this point had been black and had given answers similar to those given by all of the other prospective jurors. The trial judge denied counsel’s request to make a note of evidence, and defense counsel reserved a bill of exception.

Defendant argues to this Court that the judge’s failure to allow him to make a note of evidence violated his right to a fair and impartial jury trial guaranteed by the sixth amendment to the Constitution of the United States. He argues that in order to prove an allegation of systematic exclusion of blacks by the prosecutor’s use of peremptory challenges he was entitled to use the mechanism of the note of evidence. Although his argument is not clear, he seems to be saying that the judge’s refusal prevented his being able to make a record in this case which could conceivably be used, along with other such evidence, by other defendants in other trials to prove that this prosecutor exercises his peremptory challenges in such a way as to systematically exclude blacks from the jury box.

In the case of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the United States Supreme Court held that a prosecutor’s striking of all blacks from a jury venire in a particular case does not constitute a denial of equal protection of the laws. However, the Court held that if a defendant could establish that a prosecutor unfairly exercised his peremptory challenges so as to exclude blacks from serving on juries over a period of time, a fourteenth amendment violation would have been proved. In order to properly pose the issue, however, the defendant must show on the record the prosecutor’s systematic use of peremptory challenges to exclude blacks over a period of time, a showing this defendant had not made. It was evidently to meet this Swain test that this defense counsel attempted to make his note of evidence so that he could later establish systematic exclusion of blacks in a subsequent case, presumably involving a different defendant and a different crime but the same prosecutor.

We appreciate this counsel’s attempt to meet the test of Swain, if that in fact was his intention, but the trial judge was correct in refusing to admit the “evidence” offered. Even had the note of evidence been made, the defendant could not have proved, under the Swain test, that he was the-victim of discriminatory use of peremptory challenges. To do that, he would have had to develop an independent record of prior systematic exclusion which he could then have offered into evidence at his trial.

We hold, therefore, that the refusal of the trial judge to accept into evidence material to be used in a future case was not improper.

BILL OF EXCEPTION NO. 4.

During cross-examination by defense attorney of the robbery victim, the witness stated that his testimony was based on what he remembered of the incident. When asked whether he had recently read the written, signed statement he had earlier given to the police so as to refresh his memory prior to his court appearance, the witness responded that he had only read the statement “on the day it happened,” the date of the crime. Without any other attempt to lay a foundation for securing the statement, defense counsel moved to have the statement produced at that time. When the state’s objection to the motion was sustained, this error was noted.

In arguing to this Court that the judge’s refusal to grant his motion was error, the defendant relies on our decision in State v. Tharp, 284 So.2d 536 (La. 1973).

In State v. Tharp, supra, this Court held that when a witness testified from his recollection of the contents of a report about an event, rather than from his memory of the event itself, it was reversible error for the trial judge to refuse to order the state to produce a copy of the report for the defendant.

Tharp is distinguishable from the case before us. Here, the witness testified that he was relying on what he remembered at the time of the commission of the robbery, not a written statement about the crimp. He- testified, in fact, that he had read the statement only on the day of the crime.

When a witness testifies that he remembers the event in question and is relying on his memory, not a written statement which he had read, the jurisprudence of this state does not require that the statement be produced. State v. Singleton, 321 So.2d 509 (La.1975); State v. Payton, 294 So.2d 211 (La.1974). The trial judge properly denied the motion to inspect the report.

BILL OF EXCEPTION NO. 7.

During cross-examination of Officer John Fields, defense counsel asked what time he received the initial police call that an armed robbery had been committed. Officer Fields answered that he did not recall the exact time and did not remember sufficiently to give an approximation. Upon further questioning, he stated that it was in the early afternoon and that it might have been about 2:30, although he did not remember exactly. He further related that he did not prepare a report, but that a report of the incident had been prepared by another police officer. Thereafter, defense counsel asked the witness if the police report would refresh his memory as to the exact time that he received the call. The state objected to the question, the witness was not permitted to respond, and the trial judge instructed the officer to look at the report. Thereupon the officer related that the incident occurred at 3:15 p. m and the call was dispatched at 3:20 p. m. At this point, counsel for defendant moved for an in-camera inspection, a request which was denied by the trial judge with this comment to the defense attorney: “You are not going to ask the question and use that to get the report. You asked him to look at the report, now proceed with the questioning.”

Defendant argues that he was entitled to the inspection on the authority of State v. Perkins, 310 So.2d 591 (La.1975) and State v. Tharp, supra. Perkins and Tharp are, of course, authorities for the proposition that a defendant is entitled to examine a report used by a witness to refresh his memory while testifying. However, Perkins and Tharp are distinguishable from the case at hand. Here we do not have a case in which a witness has offered ostensibly important testimony prompted by review of a written report or document. Rather we have a situation in which the witness was apparently satisfied to testify that he did not recall the time of receipt of the police call, and in which the appropriate time of 3:15 in the afternoon had already been testified to by his partner. Under these circumstances defense counsel insisted upon the witness’ referring to a report not prepared by him. Apparently the attorney hoped to establish his right to review the document so that he could use it for purposes of discovery. The trial judge was aware of counsel’s purpose, and he indicated, before requiring the officer to review the report and give testimony concerning the time, that he did not think that an appropriate predicate had been laid for production of the report.

Under these circumstances, we find no error in the trial court’s determining, in effect, that counsel would not be permitted to press for an apparently insignificant answer, insist upon the witness’ reviewing the report prepared by another, and then, on the strength thereof, call for the report, not for the purpose of verifying the response, but for the purpose of discovery.

The bill of exception lacks merit.

BILL OF EXCEPTION NO. 8.

Defendant argues that the photograph of defendant’s fingerprint taken from the victim’s delivery truck was improperly introduced into evidence because the state’s expert did not apply a “control” test to determine how long the print had been on the truck. The defendant relies on Ivey v. State, 176 So.2d 611 (Fla.App. 1965), a decision of the Florida Court of Appeal which held that fingerprint evidence can be used in Florida courts to prove identity only when the state can establish that the print could have been made only at the time the crime was committed. This is not the rule in Louisiana. According to our jurisprudence, evidence such as this fingerprint is admissible so long as the trial judge is satisfied that the object has a logical or rational connection with the fact sought to be proved. State v. Adams, 296 So.2d 278 (La.1974); State v. Vassel, 285 So.2d 221 (La.1973). It is the jury’s province to decide connexity. Here, the fingerprint evidence did bear a logical relationship to the fact the state sought to prove that Arthur Monroe touched the handle of the victim’s truck. The victim, a route salesman, testified that he “heard a noise on my left door” and that the robber had the latch open. Fingerprints, identical to those of Arthur Monroe, were taken from the handle of the truck by the state’s expert. He testified on cross-examination that he did not know when the prints were placed on the truck because it could not be determined how long a fingerprint has been on a given surface. This testimony provided a basis on which the trial judge could properly decide that there was a logical relationship between the fingerprint evidence and the fact to be proved.-. The bilLof -exception- lacks merit.

For the foregoing reasons, the conviction and sentence of Arthur Monroe is affirmed.

      . La.C.Cr.P. art. 804(A) (1968) provides: “In all cases the court shall charge the jury that:
      “(1) A person accused of crime is presumed by law to be innocent until each element of the crime, necessary to constitute his guilt, is proven beyond a reasonable doubt “(2) It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the .case; and”
      “(3) It is the duty of the jury if not convinced of the guilt of a defendant beyond a reasonable doubt, to find him not guilty.”
      “The court may, but is not required to, define ‘the presumption of innocence’ or ‘reasonable doubt’ or give any other or further charge upon the same than that contained in this article.”
      It is to be noted that, since the accused is not entitled as of right to further explanation, by the court of bis presumption of innocence, voir dire examination may be important to establish the understanding of this principle by prospective jurors.
      The importance of. the right of the accused... to a presumption of innocence on his trial before an American court is emphasized by the reiteration of this ancient principle by the Louisiana Constitution of 1974, Art. I, Section 16: “Every person charged with a crime is presumed innocent until proven guilty. * *

      . Here a bill of exceptions was reserved prior to the effective date of the change to assignments of error. However, the same rule applies to assignments of error, except that a reference to the pages of the transcript relied upon will suffice instead of attaching those pages to the bill of exceptions as was formerly the practice.

      . Although eight formal bills of exception were reserved by defendant, two of the bills were not argued in brief. Both of these bills were taken during cross-examination of the victim of the crime; one dealt with the victim’s statement to police and the other concerned his identification of defendant’s shirt. Since they were not argued by defendant in brief, they are deemed abandoned. State v. Domingue, 298 So.2d 723 (La.1974).


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Ida PATTERSON v. METHODIST HOSPITAL and Argonaut Insurance Company.
    No. 7363.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Refused June 4, 1976.

      Law Offices of Steven R. Plotkin, New Orleans, John P. Cosentino, Metaire, and James Azcona, New Orleans, for plaintiff-appellee.
    Adams & Reese, Edward J. Rice, Jr., and Harold A. Thomas, New Orleans, for defendants-appellants.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Defendants, Methodist Hospital and its insurer Argonaut Insurance Company, appeal from judgments dismissing their exceptions of prescription and prematurity and awarding Workmen’s Compensation benefits for total and permanent disability to plaintiff.

Plaintiff, while working as a housekeeping aid at the hospital, sustained injuries to her wrist in a fall on July 10, 1970, in an operating room. She received compensation payments for the period from July 22 to July 28, 1970, thereafter returning to her regular duties.

On July 13, 1971, plaintiff consulted one of the hospital’s staff physicians, Dr. Veca, complaining of wrist pain. Periodically thereafter she visited the doctor complaining of pain. On February 22, 1973, exploratory surgery was performed to determine the cause of her discomfort, but none was found. Plaintiff received compensation payments for her recuperative period following surgery from February 22 to April 1, 1973. She then returned to work and was still working at the time of the trial in October, 1974. Her suit was filed on November 20, 1973.

The dispositive issue for us is whether plaintiff’s claim was barred by the prescription or preemption of two years established by LSA-R.S. 23:1209. In overruling this exception the trial judge found that plaintiff’s earnings subsequent to the accident were “wages paid in lieu of compensation,” so that the two year prescriptive period was interrupted. But in refusing to give defendants any credit against compensation benefits for these wages, the trial judge stated as follows:

“Since this injured employee actually worked for the wages paid to her, the Court concludes that these wages were earned and no credit is to be allowed insofar as compensation due is concerned. Wages in lieu of compensation may prevent prescription or preemption of the claim, but if the claimant actually and in fact performed the services for which those wages were paid, there is no credit due therefore against compensation.”

In Francis v. Kaiser Aluminum & Chemical Corporation, La.App., 225 So.2d 756, this Court considered whether or not plaintiff’s earnings were wages in lieu of compensation to determine whether the employer was entitled to a credit against compensation benefits due plaintiff. The Court said : The same test must now be used by us for treating plaintiff’s wages as in lieu of compensation and for determining whether prescription has run or not. Therefore, the trial judge’s findings are inconsistent and we have made a determination based upon our own examination of the record.

“ . . . But the test for treating wages as in lieu of compensation is not whether he does all his prior work (if, he did he could not claim disability); rather the test is whether the wages are earned, by such work as the claimant in fact does; Madison v. American Sugar Rig. Co., 243 La. 408, 144 So.2d 377 (1962).”

When plaintiff returned to the payroll in July, 1970, she resumed her duties in the operating rooms. She testified: It was painful for her to work, especially in cleaning overhead surfaces or objects; she complained to her supervisors to no avail although she was eventually transferred out of the operating rooms at her request and assigned elsewhere on a night shift to do what she considered to be easier work ; she was at some point in time reassigned to another shift cleaning patients’ rooms and baths; she continued to suffer and performed her duties as best she could without the use of the right injured wrist which she usually kept in her pocket; although she was paid her salary and given the same raises as other employees were she could not do her work without assistance from other employees, and even visitors in the hospital; and she once received an official complaint about the manner in which she performed her duties.

On the other hand, Mrs. Vivian LaMonte, who was director of housekeeping at the hospital between 1968 and 1973, testified that plaintiff’s work after her accident was satisfactory; the transfer from the operating room did not take place until May, 1972 (a fact verified by hospital records) and this was pursuant to a request she made even before the accident (a specific fact finding of the trial judge). Mrs. La-Monte characterized plaintiff’s complaints to her as typical of all the housekeepers’ complaints, both before and after her accident,'i. e., that there was too much work and not that plaintiff couldn’t perform because of her injury. Mrs. LaMonte described plaintiff as a slow worker at all times before and after the injury. She did admit that plaintiff once after the accident declined to sign her name with her right hand, she favored her right hand by not putting pressure on it, she held her mop with two fingers of her right hand, and she heard from others that plaintiff avoided the use of her right hand in the general performance of her work.

Plaintiff relies heavily on the testimony of Mr. Algimentas Bumelis, who became director of housekeeping in August, 1973, and continued as such until June, 1974. While his testimony was relevant to the issue of the extent of plaintiff’s disability, i. e., whether total and permanent or not, it does not relate to the issue of whether plaintiff’s earnings were wages in lieu of compensation during the crucial period of July, 1970, until July, 1972, since he did not come into contact with plaintiff until August, 1973.

The evidence preponderates to the effect that plaintiff, although suffering with an injured wrist, performed her duties and earned her salary for two years after compensation benefits were paid in July, 1970. Applying the rationale of Francis v. Kaiser Aluminum & Chemical Corporation, supra, she did not receive wages in lieu of compensation and her claim is barred by the two year prescription of LSA-R.S. 23:1209.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of defendants, maintaining their exception of prescription and dismissing plaintiff’s suit at her cost.

REVERSED AND RENDERED.


author: REDMANN, Judge.

text:
    UPPER AUDUBON ASSOCIATION et al. v. AUDUBON PARK COMMISSION et al. The AUDUBON PARK COMMISSION v. NOVELTY ENTERPRISES, INC. The AUDUBON PARK COMMISSION v. J. D. DOUGLASS CONCESSIONS, INC.
    Nos. 7247, 7318 and 7455.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearings Denied April 13, 1976.
    Writ Refused June 2, 1976.

      Vernon V. Palmer, Sidney M. Bach, New Orleans, for Upper Audubon Ass’n, et al.
    Thomas A. Rayer, New Orleans (Dene-chaud & Denechaud), New Orleans, for Novelty Enterprises, Inc. and J. D. Douglass Concessions, Inc.
    Phillip A. Wittman, S. Michael Henry, New Orleans (Stone, Pigman, Walther, Wittmann and Hutchinson), New Orleans, for Audubon Park Commission.
    Before REDMANN, LEMMON and STOULIG, JJ.
   REDMANN, Judge.

These appeals question whether Louisiana’s public lease law, R.S. 41:1211-1222, applies to leases by the Audubon Park Commission for the City of New Orleans. The Commission was created by La. Acts 1914, No. 191, to control and manage Audubon Park, which is state-owned, City of New Orleans v. Board of Comm’rs. of Port of N. O., La.App. 1962, 148 So.2d 782, writ refused 244 La. 204, 151 So.2d 493. A second question is whether the Commission may use summary proceedings to regain possession of land leased without compliance with the public lease law.

We answer yes to both questions.

The Appeals

Citizen-taxpayers obtained a judgment declaring invalid, for noncompliance with advertisement and public bidding provisions of the public lease law, a lease by the Commission to Novelty Enterprises, Inc. Novelty appealed.

The Commission acquiesced in that judgment, and brought a rule to evict Novelty. Refused eviction, the Commission appealed.

The Commission also brought a rule to evict J. D. Douglass Concessions, Inc., on the ground that Douglass’s lease was a nullity. Eviction was granted and Douglass appealed.

The three appeals have been consolidated.

Standing

In the first appeal, Novelty questions the plaintiffs’ standing to sue.

To show standing in Louisiana a taxpayer need only show an effect upon the public fisc by the government action in question. Stewart v. Stanley, 1941, 199 La. 146, 5 So.2d 531; Roussel v. Noe, La.App. 1973, 274 So.2d 205, writ refused 281 So.2d 743; Bussie v. Long, La.App.1973, 286 So. 2d 689, writ refused 288 So.2d 354. Here the showing is not only that, because not publicly bid, the lease may not provide the highest rental, but also that the lease calls for expenditures by the Commission.

The standing of the individual plaintiffs is shown. (We do not consider, because unnecessary to our decision, whether the plaintiff association also has standing.)

Public Lease Law Controls

Appellants argue that Acts 1958, No. 492, exempts the Commission from the public lease law, and provides authorization to the Commission to enter leases by negotiation rather than by public advertisement and bid. That act vests in the Commission

“authority to enter into contracts with private individuals, firms or corporations for the establishment, maintenance and operation of park recreational and entertainment facilities and activities ., and to charge and collect from said contracting parties rental for the use of said park property.”

Appellants cite Hebert v. Police Jury of W. Baton Rouge Parish, La.App.1967, 200 So.2d 877, and the authorities it cites, in support of this position.

This position, however, is by implication rejected by Arnold v. Board of Levee Comm’rs, La.App.1976, 327 So.2d 495, which discusses in depth the history and purposes of the public lease law, the principle of express exception by other statutes, and the cases appellants rely upon.

We do not find any provision in Acts 1958, No. 492, which differentiates this case from Arnold. Authority to “charge and collect . . . rental” does not even imply authority to fix rental other than by public advertisement and bid. Without repeating Arnold’s pertinent discussion and analysis, we point out that the statute appellants cite was enacted subsequent to the public lease law, when any intent to create an exemption from that law had more reason to be express than did Arnold’s statute, enacted long before the public lease law.

We hold that the public lease law is applicable. (See also Giles v. New Orleans City Park Improvement Ass’n., La.App. 1975, 306 So.2d 823, writ refused 310 So.2d 841.)

Availability of Summary Proceedings

In the eviction proceedings, the lessees excepted that the use of summary procedure to evict is not available. (The brief in support clarifies that this is the intent of the exception described as one of “no cause of action.”)

C.C.P. 4701 may not be yet applicable. It provides a method of evicting a lessee whose right of occupancy “has ceased”. A definitive judgment declaring a lease null might be interpretable as causing the lessee’s ostensible right to cease; but the declaratory judgment annulling Novelty’s lease was not definitive, and there was no judgment at all as to Douglass. As to Douglass, the rule to evict was a first notification of a theory of nullity of its lease :■ it was a rule to show cause why the lease should not be declared a nullity (and why the lessee should not therefore be evicted).

Summary proceeding is available, C.C.P. 2592, in all cases where the law permits and R.S. 13:5035 provides “summary” hearing of suits by the state for “possession of real property”. A summary proceeding may be commenced by rule to show cause, C.C.P. 2593. We therefore conclude that the Commission’s proceeding by rule, even if not technically available under C.C.P. 4701, is authorized under R.S. 13:5035 to obtain possession of immovable property.

The exception to the summary procedure was correctly overruled as to Douglass and incorrectly maintained as to Novelty (despite the Commission’s reliance on C.C.P. 4701 alone).

Arbitrary Discrimination

Finally, it is argued by Douglass that the Commission discriminates arbitrarily by evicting it while allowing other lessees to remain in possession.

We find that there are only three lessees with terms beyond one month; of those two are here involved and the third (the Audubon Golf Club) was, at trial time, being approached for an extra-judicial cancellation and settlement of its lease. As to other concessionnaires or lessees, we do not suggest that the public lease law allows unadvertised and unbid leases on a monthly (or shorter) basis any more than on longer terms; but, if, e. g., the balloon-sales concession is subject to the public lease law, the Commission’s effort seems reasonable as a stop-gap to keep the park operating until leases can be granted in compliance with the public lease law. The leases of Novelty and Douglass, on the other hand, need not be allowed to continue on a similar month-to-month basis as a matter of equal protection of the law, La.Const, art. 1, § 3, because these leases (as recently amended) call for removal from present locations to accommodate zoo expansion, and for construction by the Commission of new facilities at new locations. These lessees are therefore in a different position, unable to continue in possession even on the basis of an occupancy terminable at will, and the Commission has not unlawfully discriminated against them.

The judgments in Nos. 7247 and 7455 are affirmed. That in No. 7318 is reversed, and the Commission’s rule to evict, as a rule for possession under R.S. 13:5035, is made absolute at Novelty’s cost.


author: BEER, Judge.

text:
    UPPER AUDUBON ASSOCIATION and Walter Chappell, III v. The AUDUBON PARK COMMISSION, Through its President, Clayton Nairne, et al.
    No. 7319.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Writ Refused June 2, 1976.
    Sidney M. Bach, Vernon V. Palmer, New Orleans, for plaintiffs-appellants.
    Stone, Pigman, Walther, Wittmann & Hutchinson, Phillip A. Wittman, S. Michael Henry, New Orleans, for defendants-appellees.
    Baldwin, Haspel, Molony, Rainold & Meyer, New Orleans (Robert R. Rainold), New Orleans, for defendants-appellees.
    Philip S. Brooks, City Atty., Henry W. Kinney, Asst. City Atty., for defendant-ap-pellee.

      Before SAMUEL, STOULIG, and BEER, JJ.
   BEER, Judge.

Plaintiffs-appellants, Walter Chappell, III and the Upper Audubon Association, filed this suit in Civil District Court for the Parish of Orleans against defendants-appellees, The Audubon Park Commission, Gervais F. Favrot Company, Inc., and the City of New Orleans, seeking to enjoin continued construction of a “curio” or gift shop in Audubon Park. They allege that the contract between the named defendants for construction of the shop was void because it violated Article 5, Section 25 of the Comprehensive Zoning Ordinance of 1970 of the City of New Orleans. The trial court sustained defendant-appellees’ dilatory exception of Failure to Exhaust Administrative Remedies (Prematurity) foreclosing judicial action pending appellants’ administrative appeal to the Board of Zoning Adjustments. From this judgment they devolutively appeal urging reversal for the following reasons:

1. The Board of Zoning Adjustments does not have jurisdiction to declare the construction contract void. Thus, the apparently applied doctrine of exhaustion of administrative remedies is not applicable. Dunn v. Parish of Jefferson, 242 So.2d 845 (La.App. 4th Cir. 1971).

2. The doctrine of exhaustion of administrative remedies is not applicable where irreparable injury is claimed. O’Meara v. Union Oil Co. of Cal., 212 La. 745, 33 So.2d 506 (1947); State Board of Education v. Anthony, 289 So.2d 279 (La. App. 1st Cir. 1973), writs denied, 292 So.2d 246; Michell v. Louisiana State Board of Optometry Examiners, 128 So.2d 825 (La. App. 3rd Cir. 1961).

3. There-is no statutory basis for requiring an appeal to the Board of Zoning Adjustments when relief is sought directly in the courts under circumstances similar to those here existent. Comprehensive Zoning Act, Article 13, Section 4; Parish of Jefferson v. Groetsch, 256 So.2d 722 (La.App. 4th Cir. 1972); City of New Orleans v. Langenstein, 91 So.2d 114 (Orl. App. 1956).

Looking beyond the validity vel non of these contentions we are faced with the serious question of whether or not this court (or the district court on remand) is able to render appropriate relief in view of the present status of this litigation and the actual facts of the case.

The permit for construction of the building in question was issued to Gervais Fav-rot Company, Inc., on January 10, 1975. Plaintiffs first complaint was by letter of April 23, 1975. When they filed suit on May 29, 1975 the structure was, apparently, about fifty percent complete. In brief (filed October 20, 1975) the defendants-ap-pellees make note that the building is ninety-five percent complete. At the argument of the matter before us on February 9, 1976 able and cooperative counsel for all litigants stipulated that the building is now totally complete and that ninety percent of the contract cost of same has been paid, the remaining ten percent being held for “punch list” completion of the usual odds and ends that are required in most construction jobs of this size. What relief, then, is judicially available to appellants should this court agree with their contentions ?

As a general rule, it is the function of appellate courts to render judgments that can be made effective and not to give opinions on moot questions or abstract propositions from which no practical results can follow. City of Lake Charles v. Nope, 92 So.2d 144 (La.App. 1st Cir. 1957); Guste v. Louisiana Milk Commission, 297 So.2d 750 (La.App. 1st Cin: 1974).

In the practice of judicial economy we have the duty to consider the possibility that a case has become moot. Behler v. Louisiana State Racing Comm., 251 La. 959, 207 So.2d 758 (1968). LSA-C.C.P. Article 2164.

In Verdun v. Scallon Bros. Cont., Inc., 263 La. 1073, 270 So.2d 512 (1972) the district court granted plaintiff injunctive relief prohibiting excavation by defendant of mud located on plaintiffs land. An appeal was taken by defendant but excavation continued during appellate review. By the time the case reached the Supreme Court, excavation was completed. The court observed :

“In such circumstances, the matter is now moot, as this Court will not review a case where only injunctive relief is sought when the need for that relief has ceased to be a justiciable issue. Injunction may be used to prevent but not to correct a wrong; it cannot be employed to redress an alleged consummated wrong or undo what has already beén done.”

Advisory opinions were disdained by the Supreme Court in Verdun, supra, and are not allowed under the Uniform Declaratory Judgment Act. Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971). The building is completed. Thus, an appeal to us to declare void the contract forming the basis for its construction would be “an abstract proposition from which no practical result can follow.” Lake Charles, supra.

We have made a careful review of this entire record including all of the pleadings which form a part thereof and are convinced that the only issue properly before us at this time is the correctness of the trial court’s action in maintaining the exception of Failure to Exhaust Administrative Remedies (Prematurity). Since that issue has become moot this appeal is no longer viable and should be dismissed.

We do acknowledge the diligent efforts of counsel for appellants in pointing out the unresolved zoning dispute which arises with respect to Article 5, Section 25.-3(2)(e) et seq. of the Comprehensive Zoning Ordinance for the City of New Orleans. The interpretation of this provision will, we agree, have an effect on the subsequent use to be made of the building that has now been, for all practical purposes, completed.

But the determination of this and all related matters must necessarily await the final resolution and disposition of that presently pending litigation on the docket of the Civil District Court, Parish of Orleans bearing Number 597-881.

This appeal, no longer viable in connection with any of the issues raised therein, is dismissed. Each party to bear its own costs.

Appeal dismissed.


author: STOULIG, Judge.

text:
    Curtis POCHE, Jr., and Velma Poche v. AVONDALE SHIPYARDS, INC.
    No. 7222 (Consolidated with No. 7450).
    Court of Appeal of Louisiana. Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Granted May 11, 1976.

      Kronlage, Dittmann & Caswell, Charles A. Kronlage, Jr., New Orleans, for plaintiffs-appellants.
    Hammett, Leake, Hammett, Hayne & Hulse, Dominic J. Gianna, Donald A. Hammett, New Orleans, for defendants-ap-pellees.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, Stewart E. Niles, Jr., for Avondale Shipyards, Inc., intervenor-appellee.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, New Orleans, for Employers Mut. Liability Ins. Co. of Wisconsin, amicus curiae.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiffs, the widow and children of Curtis Poche, Sr., filed this third party negligence action against Avondale Shipyards, Inc., Poche’s employer, and its executive officers, for the wrongful death of their husband and father, respectively. Poche fell from a scaffold while working on new ship construction during the course and scope of his employment with Avon-dale. The section of ship to which his scaffold was attached suddenly broke away from the rest of the structure and collapsed, causing Poche to be thrown violently to a rail below which fall ultimately resulted in his death.

Avondale filed exceptions of no right or cause of action without explaining the bases. The executive officers urged similar exceptions, alleging the benefits afforded by the Longshoremen’s and Harbor Workers’ Compensation Act (LHCA) were available to plaintiffs and this excluded all other benefits.

From a judgment maintaining the exceptions and dismissing their suit, plaintiffs have appealed.

The issue presented by this appeal is whether the survivors of the deceased may elect to pursue the remedies afforded by laws of the State of Louisiana (claim for compensation and a third party negligence action) or whether the benefits available are exclusively those under LHCA.

It is pertinent to compare several provisions of LHCA before and after its amendment in 1972. We quote the definitions of employer and employee and the coverage sections of the act before and after. Before amendment they provided:

“When used in this chapter—
‡ >}í ‡
(3) The term ‘employee’ does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.
(4) The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock.)” 33 U.S.C. § 902.
“(a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. * * * ” 33 U. S.C. § 903.

In enacting the amendments quoted be- • low, Congress extended the LHCA benefits to certain classes of maritime workers who performed their duties on land. Thus the terms “employer” and “employee” were expanded as follows:

“When used in this chapter—
‡ ‡ Jfc # % *
(3) The term ‘employee’ means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.
(4) The term ‘employer’ means an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).” 33 U.S.C. § 902.

At the same time coverage was extended to harbor workers injured in some areas adjacent to and inland of the shoreline in 33 U.S.C. §903 (a):

“Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). * * *”

Defendants argue the 1972 amendment legislatively overrules the twilight zone doctrine that since 1942 has permitted certain longshoremen and harbor workers to elect whether they would pursue state or federal remedies when injured on the job.

Davis v. Department of Labor and Industries coined the “twilight zone” term in analyzing a factual situation from which it found it “extremely difficult” to determine whether state or federal compensation law should be applied. A structural steel worker, while dismantling a bridge across a navigable river and stowing the steel in a barge, fell in and drowned. The survivors’ right to compensation under the state act was upheld, but the court pointed out these plaintiffs could have elected to seek LHCA benefits, because that act adopted “the Jensen line of demarcation.”

The post-Davis jurisprudence has expanded LHCA coverage to all injuries incurred in the course of employment over navigable waters even though the worker was performing a nonmaritime function. At the same time it was recognized that many injuries incurred over navigable water were also within the constitutional reach of the states and could be covered by workmen’s compensation laws, if work being performed was of local concern.

Thus as the twilight zone was expanded to give more longshoremen and harbor workers the option to pursue state or federal remedies, this quoted limitation of 33 U.S.C. § 903(a) was rendered ineffective:

“Compensation shall be payable under this chapter * * * if recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law. * * * ” (Emphasis supplied.)

As amended, the coverage section makes no reference to state compensation law. It simply provides benefits are due:

«* * * if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel). * * * ”

Defendants contend this amendment was enacted to demark where federal benefits end and state benefits begin, and to eliminate that class of claims that could previously have been brought in either state or federal tribunals. In extending coverage inland, defendants maintain Congress extended the admiralty jurisdiction of the United States and preempted an area in which state law could no longer effectively operate.

A state does not automatically lose its authority to legislate when Congress extends the federal law into an area formerly regulated exclusively by the state. Federal preemption of a state’s legislative power only occurs if there is an irreconcilable conflict between the federal and state statute or if Congress manifests a specific intent to end the state’s right to legislate in a given field. In Florida Lime and Avocado Growers, Inc. v. Paul, the Court made these observations on federal preemption:

“ * * * The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be' enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives.
“The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained. * * * ”

The disputed LHCA amendment 'makes no express declaration that Congress has preempted the exclusive right to those landbased longshoremen and harbor workers to whom federal benefits were granted by its enactment. Nor can we see any conflict between the state and this federal compensation law. We think the amendment was enacted to give certain classes of workers involved in some land-based aspects of activity an option to choose the federal compensation benefits if, in the particular case, they were more favorable.

The legislative history of P.L. 92-576, insofar as it pertains to the extended LHCA coverage, supports this conclusion. It was pointed out in committee there was a disparity in benefits available to certain maritime workers, depending on what side of the water’s edge they sustained injury. It was further noted that the compensation rates in many coastal states were substandard. We quote that section of the history pertaining to extending coverage to certain land-based employees adjacent to navigable waters:

“Extension of Coverage to Shoreside Areas
“The present Act, insofar as longshoremen and ship builders and repairmen are concerned, covers only injuries which occur ‘upon the navigable waters of the United States.’ Thus, coverage of the present Act stops at the water’s edge; injuries occurring on land are covered by State Workmen’s Compensation laws. The result is a disparity in benefits payable for death or disability for the same type of injury depending on which side of the water’s edge and in which State the accident occurs.
“To make matters worse, most State Workmen’s Compensation laws provide benefits which are inadequate; even the better State laws generally come nowhere close to meeting the National Commission on State Workmen’s Compensation Laws recommended standard of á maximum limit on benefits of not less than 200% of statewide average weekly-wages. The following are the maximum limits on the compensation payable for permanent total disability in some maritime States:
California - $ 70.00
Florida- 56.00
Hawaii - 112.50
Louisiana - 49.00
Maryland- 85.68
Massachusetts- 77.00
New Jersey- 101.00
New York- 80.00
Oregon- 62.50
Pennsylvania - 60.00
Texas - 49.00
“Also, under the laws of some states due to exemptions based upon the number of employees hired some workers might be uncovered in the event they are unfortunate victims of an injury.
“It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water’s edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land. It is also to be noted that with the advent of modern cargo-handling techniques, such as containerization and the use of LASH-type vessels, more of the longshoreman’s work is performed on land than heretofore.
“The Committee believes that the compensation payable to a longshoreman or a ship repairman or builder should not depend on the fortuitous circumstance of whether the injury occurred on land or over water. Accordingly, the bill would amend the Act to provide coverage of longshoremen, harbor workers, ship repairmen, ship builders, shipbreakers, and other employees engaged in maritime employment (excluding masters and members of the crew of a vessel) if the injury occurred either upon the navigable waters of the United States or any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other area adjoining such navigable waters customarily used by an employer in loading, unloading, repairing, or building a vessel.
“The intent of the Committee is to permit a uniform compensation system to apply to employees who would otherwise be covered by this Act for part of their activity. To take a typical example, cargo, whether in break bulk or containerized form, is typically unloaded from the ship and immediately transported to a storage or holding area on the pier, wharf, or terminal adjoining navigable waters. The employees who perform this work would be covered under the bill for injuries sustained by them over the navigable waters or on the adjoining land area. The Committee does not intend to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity. Thus, employees whose responsibility is only to pick up stored cargo for further transshipment would not be covered, nor would purely clerical employees whose jobs do not require them to participate in the loading or unloading of cargo. However, checkers, for example, who are directly involved in the loading or unloading functions are covered by the new amendment. Likewise the Committee has no intention of extending coverage under the Act to individuals who are not employed by a person who is an employer, i. e. a person at least some of whose employees are engaged, in whole or in part in some form of maritime employment. Thus, an individual employed by a person none of whose employees work, in whole or in part, on navigable waters, is not covered even if injured on a pier adjoining navigable waters.” U. S.Code Cong. & Admin.News 1972, pp. 4698, 4707.

One sentence of this quoted portion of the history is cited by defendants to support their argument Congress preempted the states’ right to legislate in land areas included in the 1972 LHCA amendment, viz:

“It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water’s edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land. * * * ” (Emphasis supplied.)

At first reading this would seem to support the preemption argument; however, the history of the amendment, when considered as a whole, indicates that the emphasized phrase is an unfortunate choice of words. It is suggested that inserting the word “exclusively” in the phrase “to. continue to apply [exclusively] to injuries occurring on land” might better express the thinking of the committee. There is nothing in the legislative history to suggest Congress intended to overrule legislatively that line of cases recognizing the state’s right to provide compensation in the twilight zone area or for injuries involving maritime pursuits of local concern.

The omission takes on added significance if we compare the quoted portion of the legislative history with another section dealing with the right of longshoremen to bring third party actions. The amendment eliminated and legislatively repudiated the judicial extension of the warranty of unseaworthiness to longshoremen in third party suits against the vessel, and in so doing, discussed in detail the Supreme Court decisions it intended to overrule.

Therefore, we conclude plaintiffs’ right to elect to receive benefits under the Louisiana Workmen’s Compensation Act remained unaffected by the 1972 LHCA amendment because the federal legislation did not preempt the state’s right to legislate in this area.

This brings us to the primary issue posed by the facts of this case and that is whether the amendment had any impact on plaintiffs’ right to bring a third party action against Avondale’s executive officers. L.R.S. 23:1101 gives the injured employee or his dependent the right to “obtain damages from or proceed at law against such [a negligent] third person to recover damages for the injury” in addition to the compensation benefits allowed. The third persons have been interpreted to include fellow employees and executive officers.

Under LHCA, however, a third party action against the executive officers of the employer or the negligent coworker is expressly prohibited. 33 U.S.C. § 933(i) provides :

“The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representatives if he is killed, by the negligence or wrong of any other person or persons in the same employ: Provided, That this provision shall not affect the liability of a person other than an officer or employee of the employer.”

Keller v. Dravo Corporation held this provision prevented an injured longshoreman from bringing an action for damages based on negligence against either an officer of the employer corporation or a fellow worker. Plaintiff in that case admitted the statute plainly barred third party suits against executive officers and fellow servants, but unsuccessfully attempted to challenge its constitutionality as a denial of property without due process of law.

In the case before us plaintiffs argue that the option to elect state or federal remedies extends to third party actions as well as compensation claims. We do not agree. The object of Section 933 (i), as we view it, is to limit the liability of the officers and other employees of the employer. Thus, by extending LHCA coverage inland, Congress, in many cases, increased the employer’s risk of loss in corn-pensation benefits. Bound by its disadvantageous features, the employer concomitantly should reap the benefits, i. e., the limitation of liability found in Section 933 (i).

Under federal law, suit may not be brought against officers and fellow workers based on allegations of negligence. Under Louisiana law, it may. Because the two are irreconcilable, the state must yield insofar as there is conflict. We hold that plaintiffs may not validly bring a third party action against the executive officers of Avondale Shipyards, Inc., and therefore we maintain the exception of no right of action. Under the Louisiana Compensation Law, a suit against the employer is likewise invalid and the dismissal of the suit against it on exception is proper.

For the reasons assigned, the judgment appealed from is affirmed, costs to be borne by appellants.

AFFIRMED.

      . Plaintiffs are the major son, Curtis Poche, Jr., and Mrs. Velma Poche, widow of Curtis Poche, Sr., the latter appearing individually and as administratrix of the estates of her minor children, Whitney and Patricia Poche.

      . Peter Territo, John Chantrey, Edward A. Blanchard, A1 Bossier, Edwin Hartzman and Henry Z. Carter are the executive officers cited.

      . 33 U.S.C. § 901 et seq.

      . 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942).

      . Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), holds that the New York Compensation Act could not constitutionally be applied to an injury sustained on a gangplank between a vessel and a dock. Because it occurred over navigable water, it was held to be exclusively within the federal maritime jurisdiction, although the court acknowledged it would be difficult to draw the line as to where the state could validly legislate. After many employees were deprived of workmen’s compensation under the Jensen rationale, the LHCA was enacted in 1927 to afford federal relief where “recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by State law.”

      . Calbech v. Travelers Insurance Company, 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962).

      . Parker v. Motor Boat Sales, Inc., 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184 (1941).

      . Arp. v. Maryland Casualty Company, 170 So.2d 166 (La.App. 4th Cir. 1964).

      . 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963).

       Plus $6 for each dependent.

      . “The Committee also rejected the thesis that a vessel should be liable without regard to its fault for injuries sustained by employees covered under this Act while working on board the vessel. Vessels have been held to what amounts to such absolute liability by decisions of the Supreme Court, commencing with Seas Shipping Co. v. Sieracki, 328 U.S. 85 [66 S.Ct. 872, 90 L.Ed. 1099] (1946) which held that the traditional seamen’s remedy based on the breach of the vessel’s absolute, nondele-gable duty to provide a seaworthy vessel was also available to longshoremen and others who performed work on the vessel which by tradition has been performed by seamen. Under the Sieraohi ease, vessels are liable, as third parties, for injuries suffered by longshoremen as a result of ‘unseaworthy’ conditions even though the unseaworthiness was caused, created, or brought into play by the stevedore (or an employee of the stevedore) rather than the vessel or any member of its crew. For example, under present law, if a member of a longshore gang spills grease on the deck of a vessel and a longshoreman slips and falls on the grease a few moments later, the vessel is liable to pay damages for the resulting injuries, even though no member of the crew was responsible for creating the unseaworthy condition or was even aware of it. Furthermore, in the example given above, under the Supreme Court’s decision in Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350 U.S. 124 [, 76 S.Ct. 232, 100 L.Ed. 133] (1956), the vessel may recover the damages for which it is liable to the injured longshoreman from the stevedore which employed the longshoreman on the theory that the stevedore has breached an express or implied warranty of workmanlike performance to the vessel. The end result is that, despite the provision in the Act which limits an employer’s liability to the compensation and medical benefits provided in the Act, a stevedore-employer is indirectly liable for damages to an injured longshoreman who utilizes the technique of suing the vessel under the unseaworthiness doctrine.” U.S.Code Cong. & Admin.News 1972, at p. 4702.

      . Grigg v. Martin, 269 So.2d 331 (La.App.2d Cir. 1972) ; Jolly v. Travelers Ins. Cov, 161 So.2d 354 (La.App. 4th Cir. 1964).

      . 441 F.2d 1239 (1971) ; Certiorari denied, 404 U.S. 1017, 92 S.Ct. 679, 30 L.Ed.2d 665.


text:
    Aldrich ADAMS v. Ed HARTZMAN et al.
    No. 7450 (Consolidated with No. 7222).
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Granted May 11, 1976.

      Garland R. Rolling, Metairie, for plaintiff-appellant.
    Hammett, Leake, Hammett, Hayne & Hulse, Dominic J. Gianna, Donald A. Hammett, New Orleans, for defendants-ap-pellees.
    Before SAMUEL, STAULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Aldrich Adams, filed a third party suit against his employer’s executive officers, alleging their negligent conduct resulted in his sustaining a job-connected injury at Avondale Shipyards, Inc. At the time of injury, plaintiff alleged he was operating a crane that was lifting material being used in new ship construction. Defendants pleaded the exceptions of no right or cause of action, which were maintained. Plaintiff has appealed the judgment dismissing his suit.

At the trial level it was stipulated that plaintiff was being paid workmen’s compensation benefits under the Longshoremen’s and Harbor Workers’ Compensation Act. In his motion which precipitated the consolidation of this appeal with that pending in the proceeding bearing Docket No. 7222 of this court, entitled "Curtis Poche, Jr., and Velma Poche vs. Avondale Shipyards, Inc.,” plaintiff averred that “the exact same legal issue is presented in both cases, that is, whether the 1972 amendment to the Federal Longshoremen’s and Harbor Workers’ [Compensation] Act precludes a suit for damages against the executive officers and/or fellow employees at Avon-dale Shipyards, Inc.”

For the reasons assigned in the Poche case, the judgment appealed from is affirmed at plaintiff’s cost.

AFFIRMED.


author: PETERS, Judge ad hoc.

text:
    Jo Ann CHOATES et al., Plaintiffs-Appellees, v. Robert Donell CHOATES, Sr., Defendant-Appellant.
    No. 5380.
    Court of Appeal of Louisiana, Third Circuit.
    March 22, 1976.

      William P. Brumfield, Baton Rouge, for defendant-appellant.
    Cooper & Sonnier by Anthony J. Fon-tana, Jr., Abbeville, for plaintiffs-appellees.
    Before GUIDRY and HOOD, JJ., and PETERS, J. ad hoc.
   PETERS, Judge ad hoc.

This is an appeal from a judgment granting plaintiff permanent custody of the two children born of the marriage between plaintiff and defendant. Defendant, the father of the children and a resident of San Antonio, Texas, was represented by an attorney appointed by the court under LSA-C.C.P. 5091. For reasons to be set out, we reverse and remand.

The fundamental issue for determination is whether defendant received adequate notice of the custody proceedings initiated by plaintiff.

Mrs. Choates filed a petition in Louisiana for custody on August 21, 1975, alleging that a Texas court on August 15, 1975, granted her a divorce, but the court had improperly awarded permanent custody of the children to her husband. An attorney was appointed to represent the absent father, defendant in the custody suit. Previously Mrs. Choates had filed in the District Court in Abbeville an action to have Full Faith and Credit given to a Texas court decree awarding her temporary custody of her children and for a restraining order against the defendant. In this suit the same attorney had been appointed by the court to represent the absent defendant. The attorney sent a letter by certified mail to defendant advising him of the nature of this suit, although he did not enclose a copy of the petition filed by plaintiff. The appointed attorney sent a second letter dated October 6, 1975, by ordinary mail, neither certified nor registered, in which he advised the defendant “This matter has been fixed for trial on October 20, 1975, at 10:00 A.M.” The attorney failed to advise the defendant that this was a different suit and one in which plaintiff was seeking permanent custody of the children. Again a copy of the petition was not furnished to the defendant nor was he ever informed that a new suit had been filed against him. The only indication that two separate suits were involved is the number 35,701 in the upper righthand corner of the second letter, while the number 35,628 had appeared in the upper righthand corner of the first letter. The use of two different suit numbers was not sufficient to inform defendant that two suits were pending against him, and, furthermore, defendant was never informed of the nature of the second suit brought against him. The record does not disclose that defendant ever received any notice plaintiff was attempting to obtain permanent custody of the children.

Plaintiff argues that even if the attorney appointed to represent the absent father failed to fulfill his obligation to use reasonable diligence to communicate with defendant, this failure can have no effect on the validity of the judgment. Plaintiff relies on LSA-C.C.P. 5098. We cannot accept plaintiff’s argument.

Overriding any provision in our Code of Civil Procedure is the Due Process Clause of the Fourteenth Amendment to the United States Constitution. A basic requirement of Due Process is “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). One must look at all the circumstances of a particular case to determine what constitutes adequate notice under the Due Process Clause. Mullane v. Central Hanover Bank and Trust Co., supra.

In the instant case, defendant’s whereabouts were well known to plaintiff and to the appointed attorney. That attorney had sent defendant a letter after the first suit was filed and the return receipt showed that defendant had received this letter. It would have been a simple matter to send another letter to the same address informing defendant that a second suit had been filed and informing defendant of the nature of the second suit. We hold that under these circumstances defendant was not given adequate, notice of the custody suit. For this reason we hereby reverse the judgment of the district court and remand the suit to that court for further proceedings.

Defendant has argued that the judgment appealed from, in addition to violating his rights to Due Process of Law, is also in violation of the Full Faith and Credit Clause of the Constitution because the lower court failed to give Full Faith and Credit to the Texas decree which awarded permanent custody to defendant. We find a consideration of this argument unnecessary at this time. Defendant’s remedy is to present this argument in the district court on remand. We make no findings in regard to defendant’s Full Faith and Credit contentions.

All costs of this appeal are assessed against plaintiff-appellee.

Reversed and remanded.


text:
    TUTORSHIP OF Robert Donell CHOATES, Jr. Rondell Daurine CHOATES, Appellee, v. Robert Donell CHOATES, Sr. (father), Appellant.
    No. 5381.
    Court of Appeal of Louisiana, Third Circuit.
    March 22, 1976.
    William P. Brumfield, III, Baton Rouge, for appellant.
    Cooper and Sonnier by Anthony J. Fon-tana, Jr., Abbeville, for appellee.
    Before GUIDRY and HOOD, JJ., and PETERS, J. ad hoc.
   PETERS, Judge ad hoc.

This appeal from a judgment ordering the issuance of letters of tutorship to Jo Ann Choates was consolidated on appeal with number 5380, Choates, et al. v. Choates, Sr., 329 So.2d 219. Because we reversed the award of permanent custody to Jo Ann Choates in number 5380 and remanded that case, we must also reverse the judgment which ordered the issuance of letters of tutorship and remand this suit. The determination of which parent is entitled to the natural tutorship must await a determination of custody. (LSA-C.C. 250.)

All costs of this appeal are assessed against Jo Ann Choates.

Reversed and remanded.