author: CALOGERO, Justice. SANDERS, Chief Justice

text:
    STATE of Louisiana v. Samuel GAINES.
    No. 59303.
    Supreme Court of Louisiana.
    July 1, 1977.
    Concurring Opinion July 15, 1977.

      Brian Begue, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Samuel Gaines was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and was sentenced to serve ten years at hard labor with credit for time spent in custody prior to imposition of sentence.

The evidence presented by the state included the testimony of the victim of the armed robbery and of two eyewitnesses. They testified that on August 5, 1974 defendant entered a liquor store in New Orleans and asked for a can of beer. When the victim turned, defendant pointed a gun at her and demanded that she give him the money in the cash register. When the victim placed the cash drawer on the counter, some of the change dropped from the drawer and was picked up by defendant. After ordering the victim and the two witnesses to lie on the floor, defendant exited the store. All three witnesses consistently described the robber’s apparel and general appearance. The victim and one of the eyewitnesses made a positive in-court identification of defendant as well as an out-of-court identification of him at the lineup conducted two months after the crime. The other eyewitness, a thirteen year old boy, testified that defendant looked like the perpetrator of the crime.

Defendant assigned four purported errors. Defendant’s assignment of error number one complains of the court’s refusal to grant the mistrial for which he moved at the conclusion of the state’s opening statement. He so moved because of the district attorney’s reference in the opening statement to hearsay information; to an ostensible contradiction by the district attorney who in opening statement said variously that one of the witnesses was so scared and nervous that she did not enter the bar again, and that the same witness was in the bar again and thought she saw the man who had committed the crime; and to facts regarding the victim’s viewing pictures at the police station. This same argument was presented by defense counsel at trial in support of his motion for mistrial.

In brief, however, counsel does not make any argument in support of the foregoing assignment. Accordingly it is deemed abandoned. State v. Jones, 340 So.2d 563 (La.1976); State v. Blanton, 325 So.2d 586 (La.1976). In any event it is non-meritorious. Any prejudice resulting from the district attorney’s remarks, if improper, was cured by the trial judge’s admonition to the jurors to base their verdict on the testimony and evidence presented at trial and not on the remarks made during the opening statement. C.Cr.P. art. 771.

In brief counsel presents an argument in support of a purported assignment of error number one which was neither included in the assignment nor included in the argument presented at trial in support of defendant’s motion for mistrial. That argument is that in the opening statement the assistant district attorney stated that the victim would testify that she learned that the defendant Sam Gaines “was a robber.” Counsel urges that the reference was to another crime committed by the defendant as to which evidence is not admissible at trial, and was therefore improper. C.Cr.P. art. 770.

The segment of the opening statement at issue follows:

“It was a rainy day, therefore, there was no people around. Dorothy Temple called the police immediately. The police came and took a report and could not find anyone. All of that was on the fifth of August. Since the fifth of August, the police had been investigating and Cassie and Dorothy Temple received information that Samuel Gains also known as “Little Sam” was a robber. Both Cassie and Dorothy knew if they ever saw him again they would know him and they would be able to identify him. So, it was at the end of August when Dorothy and Cassie looked through some pictures at the police station in order to find out who they might be able to identify as the man.” [emphasis added]

The state’s contention that the motion for mistrial, coming as it did at the conclusion of the opening statement, was untimely, is not meritorious. Defense counsel is not required to interrupt opposing counsel in opening or closing argument in order to preserve his objection for appellate review. Motion for mistrial is timely when that motion is made upon conclusion of the opening or closing statement. See State v. Lee, 346 So.2d 682 (La.1977); State v. Ervin, 340 So.2d 1379 (La.1977); State v. Foss, 310 So.2d 573 (La.1975).

On the other hand this sole argument presented in brief was not defendant’s stated grounds in support of the motion for a mistrial during the trial and accordingly it is unnecessary for us to consider the argument on appeal. Nonetheless, it is non-meritorious. As the state argued in brief, the testimony of the victim to the effect that the information which came to her was that defendant was the robber (the man who robbed the liquor store) was what the prosecutor was referring to, however inexact her verbiage may have been.

Defendant in brief urges us to examine the record for errors patent on its face. We have made this examination and find no discoverable error.

Accordingly the conviction and sentence are affirmed.

SANDERS, C. J., concurs and assigns written reasons.

MARCUS, J., concurs.

DENNIS, J., concurs in the result.

SANDERS, Chief Justice

(concurring).

I concur in the affirmance of the conviction and sentence. However, I strongly disagree with the following pronouncement in the judgment:

“Defense counsel is not required to interrupt opposing counsel in opening or closing argument in order to preserve his objection for appellate review. Motion for mistrial is timely when that motion is made upon conclusion of the opening or closing statement.”

This pronouncement is contrary to both the controlling statutory law and the jurisprudence.

Article 841 of the Louisiana Code of Criminal Procedure is explicit in requiring a contemporaneous objection. It provides:

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence.” (Emphasis supplied.)

The jurisprudence is consistent with the article in requiring a contemporaneous objection during oral argument in order to preserve a point for appellate review. State v. Leierer, 242 La. 961, 140 So.2d 375 (1962); State v. Blankenship, 231 La. 993, 93 So.2d 533 (1957); State v. Dalcour, 145 La. 1008, 83 So. 223 (1919); State v. Shoemake, 143 La. 65, 78 So. 240 (1918); State v. Duvall, 135 La. 710, 65 So. 904 (1914); 23A C.J.S. Criminal Law § 1113, pp. 226-227; 9 La.L.Rev. 265-266.

In State v. Leierer, supra, we stated:

“It was error for the trial judge to decline to rule on the objection and to defer it until the close of the argument. Immediate objection affords the district attorney an opportunity to withdraw or explain his argument if he so desires. It also permits the judge in connection with his ruling to admonish the district attorney, instruct the jury or take other prompt action designed to prevent prejudice.”

In 9 La.L.Rev. 265-266, Dr. Dale E. Bennett, an eminent authority on Louisiana criminal procedure, stated:

“Improper remarks by the district attorney must be objected to at the time if they are to be subsequently urged as reversible error. Where objection is seasonably raised, prejudice may usually be prevented and the defect cured, if the jury is immediately instructed to disregard the intemperate utterances of the prosecution.”

The general rule elsewhere is consistent with that set forth in our statute and jurisprudence. It is correctly stated in 23A C.J.S. Criminal Law § 1113, pp. 226-227, as follows:

“In order to be available to accused, the objection or exception ordinarily should be made promptly, as soon as the prosecuting attorney utters an improper statement in his opening statement, or an improper remark in his closing argument to the jury, or is guilty of other misconduct in the course of the trial.”

The decisions relied on by the majority do not support the pronouncement. In State v. Lee, La., 346 So.2d 682 (1977), the motion for mistrial was made during oral argument. In State v. Ervin, La., 340 So.2d 1379 (1977), the question raised was not objectionable oral argument but the admission of testimony referring to a. prior penitentiary sentence of the defendant. Defense counsel made a contemporaneous objection to the testimony. In State v. Foss, La., 310 So.2d 573 (1975), testimony referring to the defendant as “the king pin of the burglary organization” was at issue. The defendant made a contemporaneous motion for a mistrial.

For the reasons assigned, I concur in the decree.

      . Assignments of error numbers two, three and four are obviously non-meritorious. They have not been argued in brief nor orally. Accordingly they are deemed abandoned. State v. Jones, 340 So.2d 563 (La.1976); State v. Blanton, 325 So.2d 586 (La.1976).


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. Richard TRASS and Charles Tollivar.
    No. 59423.
    Supreme Court of Louisiana.
    July 1, 1977.

      Robert Zibilich, Orleans Indigent Defender Program, Lyall G. Shiell, Jr., New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

A grand jury jointly indicted the defendants, Richard Trass and Charles Tollivar, with the second degree murder of Allen Johnson, a violation of LSA-R.S. 14:30.1. After a joint trial, a unanimous jury found both guilty as charged. Each defendant received a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence for twenty years.

The defendants appeal. They rely on three assignments of error for reversal of their convictions and sentences.

We adduce the following context facts:

In a conversation, Trass persuaded Tolli-var to kill Allen Johnson. Immediately thereafter, Tollivar approached Johnson’s car, placed a gun through the window, and shot him.

ASSIGNMENT OF ERROR NO. 1

(Trass and Tollivar)

In brief, both defendants contend that S-9, a color photograph of the deceased’s body, is inadmissible. They argue that the State introduced it solely for inflammatory effect as it lacked any evidentiary value.

A defendant must make a contemporaneous objection to an irregularity or error made at trial and state the grounds therefor in order to avail himself of it on appeal. LSA-C.Cr.P. Art. 841. In a joint trial when one defendant objects, the law presumes that all defendants join in the objection unless the contrary appears. LSA-C. Cr.P. Art. 842.

When the State introduced S-9, defendant Tollivar’s counsel said:

“I think [defendant Trass’s attorney] has an objection. I have no objection to the evidence.” [Tr. 60]

Defendant Trass’s counsel then objected.

As Tollivar elected to interpose no objection to the admission of S-9, Articles 841 and 842 prohibit him from urging its inadmissibility on appeal. Trass’s objection must, of course, be considered.

S-9 depicts the murder victim’s head and chest on a table at the morgue. His face is bloody, and his head lies on a blood stained sheet. There is a clean bullet wound on his chest.

To be admissible, the probative value of an allegedly gruesome photograph must outweigh its prejudicial effect upon the jury. State v. Jones, La., 345 So.2d 1157 (1977); State v. Redwine, La., 337 So.2d 1041 (1976); State v. Smith, La., 327 So.2d 355 (1976). Generally, photographs of a homicide victim’s body which show the fatal wound are relevant to prove the death, to corroborate other evidence of the cause of death, to establish the location, severity, and number of wounds, and to prove the identity of the victim. State v. Williams, La., 343 So.2d 1026 (1977); State v. Cooper, La., 334 So.2d 211 (1976); State v. Beach, La., 320 So.2d 142 (1975).

We have examined the photograph of the victim in the instant case. Although unpleasant, the photograph is not gruesome. In any event, it is not “so gruesome as to ‘overwhelm reason’ and cause a jury to lose sight of the need for the prosecutor to establish with sufficient independent evidence the guilt of the accused.” State v. Smith, supra.

The photograph established the identity of the victim. It also substantiated the coroner’s testimony concerning the cause of death, i. e., gunshot wounds, and his testimony concerning the location of the entry wound.

We conclude that the photograph’s probative value outweighs any possible prejudice it may have created in the jury’s mind. See State v. Williams, supra; State v. Beach, supra. Therefore, the trial judge properly admitted it into evidence.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 2

After conviction, defendant Trass filed a motion for a new trial. Therein he alleged:

“Counsel for mover and counsel for co-defendant had previously discussed this matter and counsel for Richard Trass was assured that there was no conflict in the defendants’] two defences], therefore Richard Trass’ attorney did not move for severance. After the State had rested and Richard Trass had rested, the co-defendant put on two witnesses tending to show that Richard Trass and only Richard Trass was the murderer. Had counsel for Richard Trass known this, he would properly have moved for a severance.”

Defendant Trass complains of the denial of this motion.

Louisiana Code of Criminal Procedure Article 704 provides:

“Jointly indicted defendants shall be tried jointly unless:
(1) The state elects to try them separately; or
(2) The court, on motion of the defendant, and after [a] contradictory hearing with the district attorney, is satisfied that justice requires a severance.” [Emphasis supplied.]

The defendant Trass did not file a motion for severance prior to or during trial. He complained of the joint trial for the first time in his motion for a new trial.

We faced the same issue in State v. Tytus, 256 La. 962, 240 So.2d 723 (1970). This Court stated:

“This last bill was reserved as to the denial of the defendant Tytus’s motion for a new trial following his conviction.
U * * ‡
“We prefer, however, to rest our ruling upon the defendant’s waiver of any right he might have had to severance by his going to trial without objection to the joinder. See 23 C.J.S. Criminal Law § 939.
“Tytus and his eodefendant were charged jointly with attempted murder by an information filed by the district attorney. Jointly charged defendants are tried jointly unless (a) the state elects otherwise or (b) the court sustains a motion for severance by a defendant. La. Code Crim.P. Art. 704.
“Tytus did not move for severance pri- or to trial; nor did he make any objection to the joinder until after his conviction. An accused may not complain after his conviction of an error or irregularity in the proceedings unless he objects to it at the time of its occurrence and reserves at the time a bill of exception to an adverse ruling of the court. La.Code Crim.P. Art. 841.
“Under these circumstances, the defendant Tytus’s failure to move for a severance or to object to the joinder before trial operates as a waiver of his right to complain of it after his conviction.”

See State v. Clark, La., 325 So.2d 802 (1976); State v. Coates, La., Man.Unrep. Cas. 254 (1880). See also State v. Bonner, 252 La. 200, 210 So.2d 319 (1968).

We hold that the failure of the defendant to timely move for a severance constitutes a waiver of any right that he may have had to be tried separately.

This assignment of error is without merit.

For the reasons assigned, the convictions and sentences are affirmed.


author: PER CURIAM.

text:
    STATE of Louisiana v. J. P. McELROY, Jr.
    No. 59360.
    Supreme Court of Louisiana.
    July 1, 1977.
    Truett West, Farmerville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., E. J. Bleich, J. T. Spencer, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

The issue of whether or not the defendant was denied effective assistance of counsel is properly raised by writ of habeas corpus. State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976).

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


author: TATE, Justice. SUMMERS, Justice

text:
    Cerina WEIDENBACHER, Plaintiff-Relator, v. ST. PAUL FIRE AND MARINE INS. CO. et al., Defendants-Relators.
    No. 59394.
    Supreme Court of Louisiana.
    July 1, 1977.
    H. Martin Hunley, Jr., John M. Sartin, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-rela-tors.
    Lawrence J. Smith, Levy & Smith, New Orleans, for plaintiff-relator.
   TATE, Justice.

The issue before us concerns the scope of examination of an opponent’s retained expert during an oral deposition. The court of appeal summarily reversed a district court order. The district court had required the defendant’s expert to respond to the plaintiff’s questions, which endeavored to ascertain the witness’s expert opinion on matters relevant to the suit.

On the plaintiff’s application, we granted certiorari, 342 So.2d 867 (1977), to review the reversal of the trial court order.

(1)

The issue arises in a tort suit for personal injuries allegedly resulting from medical malpractice. The plaintiff was taking a pre-trial discovery deposition of a medical expert retained by the defendant.

Defense counsel objected to certain questions. By these, the plaintiff endeavored to ascertain of the deposed witness his opinions relating chiefly to relevant matters of general medical practice, but also including their application to the present facts.

The defendants contend, by their objections, that an opponent’s expert cannot be examined as to his expert opinion upon any matter. They rely upon La.C.Civ.P. art. 1425 (1976).

In overruling the defendants’ objections, the trial court correctly rejected this contention. For the reasons to be explained more fully, the trial court correctly held that, on oral examination, a party may depose an expert witness to be called by his opponent on the expert’s opinions, as well as upon all other non-privileged matters. La.C.Civ.P. art. 1422 (1976). This is of course subject to the limitation that, thereby, discovery is not sought of any writing obtained in anticipation of litigation or in preparation for trial. La.C.Civ.P. art. 1424 (1976). As to La.C.Civ.P. art. 1425, relied upon by the defendants, it places limitations only upon discovery of facts (not of opinions) acquired by opponent’s expert witness in anticipation of litigation or in preparation for trial.

(2)

By Act 574 of 1976, the legislature amended and re-enacted the discovery provisions of our Code of Civil Procedure. In general, the revised articles reflect an intent to broaden and facilitate discovery, although perhaps Article 1425 (relied upon by the defendant) reflects a limitation upon discovery of the knowledge of an opponent’s experts acquired in preparation for trial — but a limitation, as will be noted, applicable only to discovery of knowledge of facts thereby gained by the opponent’s expert.

The scope of and limitations upon discovery of a witness, including an opponent’s expert, is regulated by La.C.Civ.P. arts. 1422-25, as re-enacted by the 1976 statute. For convenience in reference, we are setting forth these provisions in an appendix to this opinion.

Article 1422 states the broad rule usually applicable: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * *. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” (Italics ours.)

Under the scheme of the code articles, this broad scope of recovery applies except when modified by Articles 1423, 1424, or 1425 (or unless a limiting protective order is granted for good cause, upon motion, see Article 1426).

The defendants rely upon Article 1425, in contending that the opinions of an opponent’s expert are not discoverable. However, by its express terms this article limits discovery only as to “facts known by experts . . . acquired or developed in anticipation of litigation or for trial.” The limitations of this article thus do not apply to the discovery of opinions of experts, whether or not developed in preparation for trial.

We cannot, in the guise of interpretation, alter this plain and unambiguous meaning of Articles 1422 and 1425, by substituting for it (as defendants urge us to) any conception of what the legislature may or should have intended by certain legislative amendments to the bill, as originally proposed, during the course of the legislation’s enactment.

Thus, as finally adopted, by the omission of any reference to a limitation in Article 1425 upon discovery of opinions of an opponent’s experts, these witnesses are subject to interrogation upon oral deposition as to their opinions “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Article 1422.

(3)

The defendants further contended, at least initially before the trial court, that even if the expert opinions of their witness are discoverable as to matters within his general expertise, such opinions are not discoverable insofar as acquired or developed in preparation for litigation.

In the code articles, we find no such limitation upon discovery of an expert’s opinions.

Article 1424, it is true, limits discovery “of any writing obtained or prepared by the adverse party, his expert, or agent in anticipation of litigation or in preparation for trial * *

In the present case, however, no question was asked concerning “any writing’’ prepared by the expert in anticipation of litigation, nor as to any opinion or factual finding insofar as reflected by such writing. Consequently, Article 1424 is not applicable to the questions asked by the plaintiff of the defendants’ expert.

It is true that in our recent decision in Hanks v. Drs. Ranson, Swan and Burch, Ltd., 340 So.2d 152 (La.1976), we did incidentally refer, 340 So.2d 155, to some dictum to the contrary in State through Department of Highways v. Spruell, 243 La. 202, 142 So.2d 396 (1962), in distinguishing the latter decision and denying its claimed applicability to the issue then before the court.

The effect of the reference was to seem to indicate approval of a rule limiting discovery of an opponent’s expert, insofar as concerning his opinion prepared in anticipation of litigation. Any such indicated approval was inadvertent, however, as the issue there before us did not (as we expressly held) involve any potential application of any limitation of discovery upon the opinions of an opponent’s experts who had prepared writings in anticipation of or preparation for litigation.

The limitation provided by Article 1424 relates only to “any writing’’ prepared by an expert in preparation of limitation, including “any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney or an expert.” There is a significant distinction between the discovery of a writing prepared by an expert in anticipation of litigation or in preparation for trial (protected by Article 1424) and the discovery by oral deposition of an opinion of an expert expected to be used at trial. In the case of a writing, the writing must be produced “as is”, with no protection of counsel being present, as in the case of an oral deposition, to protect against inquiry into strategy, settlement recommendations, privileged matters, etc.

For the reasons earlier stated, we find no limitation as to discovery of the opinions of an opponent’s experts deposed on oral examination.

Decree

Accordingly, for the reasons assigned, we set aside the court of appeal reversal of the district court order, and we reinstate such order. All costs of supervisory review are assessed against the defendants-respondents; other costs to await final determination of this litigation.

TRIAL COURT DISCOVERY ORDER REINSTATED.

MARCUS, J., dissents.

SUMMERS, J., dissents and assigns reasons.

SANDERS, C. J., dissents for the reasons assigned by SUMMERS, J.

APPENDIX

Articles 1422, 1423, 1424, and 1425 of the Louisiana Code of Civil Procedure, as re-enacted by Act 574 of 1976, provide:

Art. 1422. Scope of discovery; In general

Unless otherwise limited by order of the court in accordance with this Chapter, the scope of discovery is as set forth in this Article and in Articles 1423 through 1425.

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Art. 1423. Scope of discovery; Insurance agreements

A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Art. 1424. Scope of discovery; trial preparation; materials

The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, in-demnitor, expert, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. The court shall not order the production or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney or an expert.

A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Article 1469(4) apply to the award of expenses incurred in relation to the motion. For purposes of this Paragraph, a statement previously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

Art. 1425. Scope of discovery; trial preparation; experts

Discovery of facts known by experts, otherwise discoverable under the provisions of Article 1422 and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(1)(a) A party may through interrogatories or by deposition require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts to which the expert is expected to testify, (b) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to Paragraph (3) of this Article, concerning fees and expenses as the court may deem appropriate.

(2) A party may discover facts known by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Article 1465 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts on the same subject by other means.

(3) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under Paragraphs (l)(a) and (2) of this Article; and with respect to discovery obtained under Paragraph (l)(a) of this Article the court may require, and with respect to discovery obtained under Paragraph (2) of this Article the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts from the expert.

******

SUMMERS, Justice

(dissenting).

Plaintiff Cerina Weidenbacher, individually and on behalf of the estate of her deceased son George J. Weidenbacher III, instituted this malpractice suit against the Southern Baptist Hospital, Inc., Dr. Robert Senter, Dr. Frank L. Faust, the New Orleans Anesthesia Associates, employers of M. Godfrey, N.A. and the said Godfrey, Nursea D. Yeats and K. Boyette and their respective insurers St. Paul Fire and Marine Insurance Company and Argonaut-Southwest Insurance Company.

The suit is based upon allegations that the deceased Weidenbacher was admitted to the Southern Baptist Hospital for a hemor-rhoidectomy on September 30,1973 and surgery was performed on October 2, 1973. While under general anesthesia, and during that procedure, a completely untoward and unexplained event occurred. The patient developed respiratory and cardiac complications, and before the employees of Southern Baptist Hospital and members of its staff intervened severe permanent brain damage resulted from which Weidenbacher died in February 1974.

Plaintiff specially pled the doctrine of res ipsa loquitur. Reserving rights under that special plea, plaintiff alleged that Weiden-bacher’s death was caused by the negligence of one or more of the named defendants in that they failed to perform according to the proper standards of care. They failed, it is alleged, to properly monitor the patient during the administration of spinal anesthesia, and to react and properly treat developing hypoxia and anoxia, a condition which led to circulatory deficiencies, respiratory collapse, and eventual cardiac arrest. According to plaintiffs petition the standard for administration of anesthesia by board certified anesthesiologists does not vary from major medical community to major medical community.

Except for admitting the operation and Weidenbacher’s death, defendants filed general denials to plaintiffs petition. Plaintiff then proceeded to depose the defendants, Doctors Senter and Faust, but was met with the objection that these doctors could only testify to facts, and questions seeking to elicit their expert opinions were impermissible. Plaintiff then proposed to also notice and depose Dr. Kermit Roux and Dr. John Adriani, expert anesthesiologists who were witnesses the defendant Dr. Faust and his insurer St. Paul Fire and Marine Insurance Company had retained to testify at trial. It was stipulated in this connection that if plaintiff attempted to depose these two doctors “and asked any questions which involved expert opinions, knowledge and conclusions” defendants’ counsel would object and instruct the experts not to answer on the ground that the opinions of experts were not discoverable by oral deposition.

Based on the objections and stipulation a rule was taken against defendants to compel the experts to give their opinions and for protective orders to restrain defense counsel’s alleged interference with the orderly conduct of the depositions. The rule was heard before The Honorable Melvin Duran (sitting in summer session for The Honorable Adrian G. Duplantier). In his reasons for judgment on the rule Judge Duran referred to Article 1452 of the Code of Civil Procedure in effect at the time. In his view the last sentence of the last paragraph of that article was a clear expression of legislative intent. It reads: “The court shall not order the production or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney or an expert.” Judge Duran drew from these words the conclusion that the legislative intent was to prevent an adverse party from being able to read the mental impressions, conclusions and opinions of an expert. While the legislative intent allowed the taking of the deposition of an expert witness just as it allows the taking of the deposition of any other witness, the judge held that the article limits the information obtainable from experts by excluding discovery of their opinions. Thus he held that only facts could be elicited from expert witnesses. He reasoned, moreover, that the Official Revision Comment to Article 1452, indicating that opinions of experts could be discovered by deposition, could have no meaning in conflict with the article itself. And it would be absurd for the law to deny the right to order production or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions or theories of an attorney or expert as Article 1452 does and at the same time permit an adverse party to obtain those same opinions by oral examination in a deposition. He cited as authority State through Department of Highways v. Spruell, 243 La. 202, 142 So.2d 396 (1962); Cuccia v. Taylor, 304 So.2d 86 (La.App.1974) and Barnett v. Barnett Enterprises, Inc., 182 So.2d 728 (La.App.1966).

He also rejected plaintiff’s argument that opinions of experts should be treated differently from the work product of attorneys, the rejection being based on the ground that Article 1452 prohibits the production or revelation of both. He ruled further that only facts could be elicited from the defendant’s doctors retained as expert witnesses and they could not be compelled to express their professional opinion on deposition.

Plaintiff then applied for writs to the Fourth Circuit. While the application was pending, this Court rendered its decision in Hanks v. Drs. Ranson, Swan & Burch, Ltd., et al., 340 So.2d 152 on September 13, 1976, and the Legislature enacted Act 574 of 1976, effective October 1, 1976, a comprehensive redrafting of the provisions of the Code under the title of “Depositions and Discovery”. The provisions of Article 1452 in effect on August 24, 1976 which were pertinent at the time of Judge Duran’s decision, were incorporated into Article 1425 in the new enactment. In light of the decision in the Hanks Case and the enactment of Act 574 of 1976 (Art. 1425), the Fourth Circuit held that plaintiff was entitled to discover the expert opinions of Doctors Frank L. Faust and Robert Senter. Those two doctors were defendants in the case, the court found, and the opinions sought were not prepared in anticipation of litigation or in preparation for trial. Their opinions were relevant to the issue of their personal expertise which was questioned in this medical malpractice suit. These witnesses, in the opinion of the Fourth Circuit, were not retained or specially employed in anticipation of this litigation but, rather, are alleged to have committed acts of malpractice which caused the death of the patient for which plaintiff seeks recovery.

As to the proposed deposition of Doctors Adriani and Roux, the retained expert witnesses of defendants, the Court of Appeal decided, upon the authority of the Hanks Case, that plaintiff was not entitled to elicit their expert opinion on deposition.

Observing that the trial judge did not reach the issue of protective orders because the rule to compel the experts to state their opinions had been dismissed, the Court of Appeal did not consider that issue.

The Court of Appeal then issued its mandamus dated October 15, 1976 to The Honorable Adrian G. Duplantier to make the rule absolute compelling Doctors Senter and Faust, the defendants, to express their opinions and knowledge with respect to the standard of care in the community as compared to similar medical communities; the mechanics and cause of death in this case; and their knowledge and evaluation of relevant medical text books. In all other respects the application for writs was denied, thus approving that part of Judge Duran’s holding that the opinions of expert witnesses who were not parties could not be discovered by deposition.

Notwithstanding these decisions, on November 11, 1976 plaintiff again attempted to take the deposition of Dr. Adriani, the consultant and medical expert engaged by defendants in anticipation of trial. Again plaintiffs counsel was met with the defense objection that he was not entitled to elicit expert opinions on deposition. Plaintiff therefore terminated the deposition and filed a rule to show cause on January 3, 1977 praying that an order issue compelling Dr. Adriani and other medical expert witnesses to testify to all matters of medical fact as well as expert opinions not formed in anticipation of litigation.

The rule was heard by Judge Duplantier. Finding Act 574 of 1976 (La. Code Civil Pro. art. 1425) to be purely procedural and applicable in praesenti to pending cases, Judge Duplantier was of the opinion that the act was patterned after recent 1970 amendments to federal rules. He found that senate amendments to the act as first passed by the House deleted all reference to opinions held by experts and the grounds therefor. The result was that the amendment might appear to limit discovery to facts obtainable from experts which were acquired or developed in anticipation of litigation or for trial and were obtainable through interrogatories, unless discovery by other means was ordered by the court.

While recognizing the possibility that the deletion of references to opinions was a legislative attempt to restrict the discovery by oral deposition of the opinion of an adversary’s expert, that result was not accomplished, in the judge’s opinion. Article 1425, he held, now includes no limitation whatsoever as to opinion testimony, its only limitation being that which permits the court to restrict the scope of facts subject to discovery.

Based on these reasons, on February 3, 1977, the rule was made absolute permitting plaintiff to take the oral deposition of Dr. Adriani, and to elicit from him his expert opinions (and the factual bases therefor), concerning matters at issue in this case, whether or not his opinions were formed in anticipation of trial or in preparation for trial.

When defendants applied for review of this order, the Fourth Circuit found the decision to be inconsistent with its October 15, 1976 mandamus in which it specifically decreed that plaintiff was not entitled to elicit expert opinions from Dr. Adriani. The court then annulled and set aside Judge Duplantier’s judgment on the rule.

Thereupon, plaintiff applied to this Court for writs, asserting that both the trial court (Judge Duplantier’s decision) and the decision of the Court of Appeal annulling and setting aside that judgment were in error. Plaintiff was not attempting to discover the ultimate conclusion of defendant’s experts. Plaintiff was seeking to discover, instead, the medical facts upon which the expert based his opinions and the extent of his knowledge of the standard of care as applicable to the facts of this case.

Broadly stated, the issue for decision is whether under Article 1425 of the Code of Civil Procedure there is blanket authority for discovery of the opinions of experts as held by Judge Duplantier.

Since Article 1425 of the deposition and discovery articles of the Code of Civil Procedure as amended by Act 574 of 1976 is obviously procedural it may be applied in praesenti and governs the disposition of the issue before the Court.

Although one of the Law Institute’s objectives in the comprehensive revision of discovery resulting in Act No. 574 of 1976 was to expand discovery of experts, that objective was rejected by the Senate and House in amendments to the proposed draft of Article 1425. The final version of the bill adopted by the Legislature, rather than expanding discovery of opinion of experts, places restrictions upon discovery of facts known by experts. Maraist, Recent Changes in Louisiana Discovery Law: An Analysis of Act 574 of 1976, 24 La. Bar Jour. 161 (1976).

A reading of Article 1425 discloses repeated references to discovery of facts known to experts acquired or developed in anticipation of litigation, or for trial, and limits how these facts can be obtained. The meaning is clear that the legislative authorization is that only facts are obtainable by deposition. But even if an ambiguity were present in the article, there are aids to interpretation which further reveal the meaning to be attributed to Article 1425. It is a fundamental maxim of statutory construction that the inclusion of what is permissible implies a legislative intent to exclude what is not mentioned. The logic and common sense of the maxim is apparent and has long been expressed as inclusio unius est exclusio alterius. State ex rel Fitzpatrick v. Grace, 187 La. 1028, 175 So. 656 (1937); 2A Sutherland, Statutory Construction § 42.23 (4th ed. 1973). Thus, the reference to “facts” precludes the notion that “opinions” were meant to be included.

Added to this construction is the knowledge made available to the Court that the proposed draft of Article 1425 did include detailed reference to the discovery of opinions along with facts acquired and developed in anticipation of litigation. But all references to opinions were specifically deleted, thus manifesting the legislative intent to deny authority to discover expert opinion.

The intention of the Legislature is therefore unmistakable: There is no authorization for obtaining by deposition the opinions of experts, whether written or not, when the expert to be deposed has been retained by a party to the litigation as a prospective expert witness. Courts cannot provide the authorization the Legislature emphatically rejected.

This Court’s September 13, 1976 decision in the Hanks Case took cognizance of the deposition and discovery procedure then recently amended and re-enacted by Act 574 of 1976, although the procedure was not to become effective until October 1, 1976. In a footnote it was noted that the new provisions made no change with respect to Article 1452 of the Code then pertinent to the case under consideration, referring to Articles 1424 and 1425(2) of the new act. In considering the language of Article 1452 of the Code, prior to its incorporation into the new Article 1425, this Court referred to this sentence: “[T]he court shall not order the production or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney or an expert.” This provision of the discovery statute, the Hanks Court agreed, has been interpreted to impose restrictions not only upon a production or inspection of writings, but upon the eliciting of oral responses at deposition concerning such opinions of an attorney or an expert, citing State through Department of Highways v. Spruell, 243 La. 202, 142 So.2d 396 (1962). Although this part of the Hanks opinion is dicta, it does, to this extent, support the position I have taken in this ease.

The Court noted, however, that this concluding sentence of Article 1452, in so limiting discovery, related exclusively to the opinions of experts prepared in anticipation of litigation or in preparation for trial by the adverse party’s expert. While this latter conclusion is also dicta, it is unacceptable under Article 1452, and it is not authoritative insofar as Article 1425 is concerned, for that Article was not yet law.

Nowhere is there a reference in Article 1425 to discovery of the opinions of experts, only facts. And facts cannot refer to opinions, the words are classic opposites. The article is not an article of limitation as the majority propounds. It is, instead, a legislative authorization setting forth what may be discovered.

In holding to the contrary the Court is deliberately flouting the manifest intent of the Legislature by providing authorization to discover expert opinion.

I would affirm the judgment of the Court of Appeal.

      . Illustrative of the questions objected to are the following:
      1. “If a patient is having difficulty breathing and is dusky, the proper procedure as a matter of fact would be to turn the patient immediately and ventilate him?”
      2. “As a matter of fact, what caused the problem in this man.”
      3. “As a matter of fact, doctor, is it proper within the standards of care to have difficulty insufflating a patient for eight minutes and to continue to do that and not to turn the patient and ventilate him?”
      4. “As a matter of fact when a person has a spinal, isn’t it true that they should be able to communicate with the anesthesist and aneth-esiologist verbally?”
      5. “Did you reach any opinion or conclusion based on materials I (referring to plaintiff’s counsel) sent you?” [The plaintiff’s counsel had sent Dr. Adriani memorandums and records prior to his becoming a defense expert.]
      6. “Should a patient who has had a spinal anesthetic be unconscious as a matter of fact?”
      7. “What’s the buie position, doctor?”

      . There, we allowed discovery of medical testimony of certain doctors, owners and officers of a medical corporation made defendant in a medical malpractice suit.

      . La. Code Civil Pro. art. 1452 provides:
      “After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may order that the deposition shall not be taken, or that it may be taken only at a designated time or place other than that stated in the notice, or that it may be taken on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents of information enclosed in sealed envelopes to be opened as directed by the court; or the court may render any other order which justice requires to protect the party or witness from annoyance, embarrassment, oppression or undue expense.
      “The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety in-demnitor, expert, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial or production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. The court shall not order the production or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney or an expert.”

      . La. Code Civil Pro. art. 1425 (1976) provides:
      “Discovery of facts known by experts, otherwise discoverable under the provisions of Article 1422 and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
      (1)(a) A party may through interrogatories or by deposition require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts to which the expert is expected to testify, (b) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to Paragraph (3) of this Article, concerning fees and expenses as the court may deem appropriate.
      (2) A party may discover facts known by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Article 1465 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts on the same subject by other means.
      (3)Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under Paragraphs (l)(a) and (2) of this Article; and with respect to discovery obtained under Paragraph (l)(a) of this Article the court may require, and with respect to discovery obtained under Paragraph (2) of this Article the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expense .reasonably incurred by the latter party in obtaining facts from the expert.”


text:
    STATE of Louisiana ex rel. Donald W. WAGSTER v. Douglas M. GONZALES and J. Al Amiss, Sheriff.
    No. 60160.
    Supreme Court of Louisiana.
    July 1, 1977.
   In re: Donald W. Wagster, applying for writs of certiorari, mandamus, prohibition, habeas corpus and stay order.

Writ granted. It is ordered that bail pending appeal be reduced to $5,000.00.


text:
    STATE of Louisiana v. Michael A. PARFAIT.
    No. 60166.
    Supreme Court of Louisiana.
    July 5, 1977.
   In re: Michael A. Parfait, applying for supervisory writs of certiorari, prohibition, mandamus and for a stay order.

Writ and stay order refused. There is no merit in the application.


text:
    STATE of Louisiana v. John O. STEPHENS.
    No. 60157.
    Supreme Court of Louisiana.
    July 5, 1977.
   In re: John 0. Stephens, applying for writs of certiorari, prohibition and mandamus and stay order.

Writ and stay order denied. The showing made does not warrant the exercise of our supervisory jurisdiction. As to the motion to quash, there is an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Michael MANSO, a/k/a Patrick Fulillo, Michael Vierthaler, Edward Kenny a/k/a Dale Roberts, Steve Hill, and Jeffery Roberts.
    No. 60179.
    Supreme Court of Louisiana.
    July 7, 1977.
   In re: Michael Manso et al., applying for writs of certiorari, mandamus and prohibition.

Writ granted. It is ordered that the bail bond as to each relator be reduced to the sum of $75,000.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. John O’NEILL, David Grossfeld, Michael Tidmarsh, Gregory Orr, John Henry Berman, Steve Martin and Richard Badolato.
    No. 60170.
    Supreme Court of Louisiana.
    July 7, 1977.
   In re: John O’Neill et al., applying for writs of certiorari, mandamus and prohibition.

Writ denied. Trial judge has scheduled completion of bail reduction hearing and preliminary examination on July. 8, 1977. In the event of an adverse ruling, relators have an adequate remedy by a further application to this court.

SUMMERS, J., would deny the writ without comment.


text:
    Fred E. YOUNG, Individually and on behalf of all other persons similarly situated v. The Hon. Lemmie O. HIGHTOWER, Judge of the Fourth Judicial District Court and the City of Monroe, et al.
    No. 60218.
    Supreme Court of Louisiana.
    July 8, 1977.
   In re: Fred E. Young, Individually, et al., applying for supervisory writs of prohibition, mandamus and/or certiorari.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Erwin WILLIS and Rebecca Willis.
    No. 60212.
    Supreme Court of Louisiana.
    July 11, 1977.
   In re: Erwin Willis and Rebecca Willis, applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Eugene W. RANDALL.
    No. 60213.
    Supreme Court of Louisiana.
    July 11, 1977.
   In re: Eugene W. Randall, applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. No error in the ruling complained of.


text:
    STATE of Louisiana v. Charlotte SPENCER.
    No. 60221.
    Supreme Court of Louisiana.
    July 11, 1977.
   In re: Charlotte Spencer, applying for supervisory writs.

Writ granted. It is ordered that the bond be reduced to $40,000.00.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Booker GLADNEY.
    No. 60215.
    Supreme Court of Louisiana.
    July 14, 1977.
   In re: Booker Gladney applying for writ of certiorari, prohibition and mandamus.

Writ denied. The showing made is insufficient to warrant the exercise of our supervisory jurisdiction.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Robert HOSKINS, Richard Boksham, Thomas M. Gorman, Christopher R. Garrett, and Edward Bogle.
    No. 60228.
    Supreme Court of Louisiana.
    July 14, 1977.
   In re: Robert Hoskins, Richard Boksham, Thomas M. Gorman, Christopher R. Garrett, and Edward Bogle, applying for writs of certiorari, mandamus and prohibition.

Writ granted. It is ordered that the bond of each of the relators be reduced to $40,000.

SUMMERS, J.,

dissents. This Court has consistently reduced bail bonds fixed by the trial judge in the exercise of a sound discretion. In most instances the reductions have involved defendants accused of violations of dangerous drug laws — in this case the possession of 3,000 pounds of marijuana.


text:
    STATE of Louisiana v. Gerald HATCHER.
    No. 60274.
    Supreme Court of Louisiana.
    July 15, 1977.
   In re: Gerald Hatcher applying for supervisory writs.

Writ refused. On the showing made, there is no basis for the exercise of our supervisory jurisdiction at this time. Questions of bail are not res judicata and remain open. Relator’s right to file a new application with the trial court is not precluded.


text:
    STATE of Louisiana v. Jonathon William POLTROCK.
    No. 60252.
    Supreme Court of Louisiana.
    July 15, 1977.
   In re: Jonathon William Poltrock applying for Writ of Certiorari.

Writ denied. This court will not interfere with the orderly proceedings in the trial court in the absence of palpable error or irreparable injury.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Charles MOSELEY.
    No. 60300.
    Supreme Court of Louisiana.
    July 19, 1977.
   In re: Charles Moseley applying for writs of certiorari, supervisory writs and stay order.

Writ denied. No showing of an abuse of discretion is made at this time. This Court will not interfere in the orderly proceeding of the trial court in the absence of palpable error, irreparable injury or great wrong.

DENNIS, J.,

concurs in denial of the writ. Applicant may reurge his motion for continuance if the information disclosed in response to pretrial motions indicates grounds therefor.


text:
    STATE of Louisiana v. Robert O’BRIEN a/k/a Robert O’Brian.
    No. 60292.
    Supreme Court of Louisiana.
    July 19, 1977.
   In re: State of Louisiana applying for writs of certiorari, prohibition and mandamus.

Writ denied. No abuse of discretion.

SUMMERS, J.,

is of the opinion the writ should be granted. I have heretofore taken the position that a reduction of bond in the companion cases was unwarranted in this $10,000,000 illegal drug arrest. Nothing has since been shown to warrant a change of this position.


text:
    STATE of Louisiana v. Gerald HATCHER.
    No. 60216.
    Supreme Court of Louisiana.
    July 20, 1977.
   In re: Gerald Hatcher applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. The showing made does not warrant the exercise of this court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Terry L. DENMAN.
    No. 60295.
    Supreme Court of Louisiana.
    July 21, 1977.
   In re: Terry L. Denman, applying for writs of certiorari, prohibition and mandamus.

Writ refused. There is no error in the ruling of the trial judge.


text:
    STATE of Louisiana v. Gerald HATCHER, a/k/a Gerald Casanova.
    No. 60331.
    Supreme Court of Louisiana.
    July 22, 1977.
   In re: State of Louisiana through the D.A. Harry Connick, applying for writs of certiorari, mandamus and prohibition and stay order.

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


text:
    STATE of Louisiana v. Gordon NOVEL.
    No. 60261.
    Supreme Court of Louisiana.
    July 26, 1977.
   In re: Gordon Novel applying for writ of mandamus or other supervisory relief.

Writ granted. Evidentiary hearing ordered.

SANDERS, C. J., and SUMMERS, J., dissent from the granting of the writ.


text:
    STATE of Louisiana v. Michael MANSO, Michael Vierthaler, Edward Kenny, Steve Hill, Jeffery Roberts, John O’Neill, Robert O’Brien, David Grossfield, John Berman, Michael Tidmarsh, Richard Badolato, Gregory Orr, and Steven Martin.
    No. 60273.
    Supreme Court of Louisiana.
    July 26, 1977.
   In re: Michael Manso, et al. applying for writs of certiorari, prohibition and mandamus.

Writ granted in part. It is ordered that the probable-cause hearing be reopened to permit defense counsel to recall and cross-examine Deputy Sheriff Abadie. In all other respects, the application is denied.

SUMMERS, J.,

dissents from the granting of this writ. The finding that these defendants and eight others were in possession of $10,000,000. worth of marijuana overwhelmingly established probable cause to charge them.


author: CALOGERO, J.,

text:
    STATE of Louisiana v. Robert M. BRYANT, Richard Dobson and Sandy C. Osgood.
    No. 60350.
    Supreme Court of Louisiana.
    July 26, 1977.
   In re: Robert M. Bryant, Richard Dobson and Sandy C. Osgood, applying for remedial writs and stay order.

Writ refused. Insufficient showing at this time to warrant the quashing of the subpoena.

CALOGERO, J.,

concurs. Absent a showing that applicants are to be questioned concerning the transaction out of which they have been charged by bill of information and until attempt is made to require applicants to appear before the grand jury without counsel, I am unprepared to find erroneous the trial court’s determination refusing to quash the subpoenas.

MARCUS, J., concurs for reasons assigned by Justice CALOGERO.

DENNIS, J., concurs for the reasons stated by CALOGERO, and also for the reason that we cannot assume applicants will be denied their constitutional rights to remain silent and to be assisted by counsel at each stage of the proceedings.


text:
    STATE of Louisiana v. Robert O’BRIEN, John O’Neill, John Berman, David Grossfield, Steve Martin, Greg Orr, Michael Tidmarsh and Richard Badolato.
    No. 60291.
    Supreme Court of Louisiana.
    July 26, 1977.
   In re: Robert O’Brien, et al. applying for writs of certiorari.

Writ granted in part. It is ordered that the probable-cause hearing be reopened to allow the defense to recall and cross-examine Deputy Sheriff Abadie. In all other respects the application is denied.

SUMMERS, J.,

dissents from the granting of this writ. The finding that these defendants and five others were in possession of $10,000,000. worth of marijuana overwhelmingly established probable cause to charge them.


text:
    STATE of Louisiana v. Robert O’BRIEN, John O’Neill, John Herman, David Grussfeld, Steve Martin, Greg Orr, Michael Tidmarsh and Richard Badalaro.
    No. 60352.
    Supreme Court of Louisiana.
    July 26, 1977.
   In Re: Robert O’Brien, et al. applying for writs of certiorari, prohibition, mandamus and habeas corpus.

Writ refused. Insufficient showing at this time to warrant the quashing of the subpoenas.

CALOGERO, J.,

concurs. Absent a showing that applicants are to be questioned concerning the transaction out of which they have been charged by bill of information, and until attempt is made to require applicants to appear before the grand jury without counsel, I am unprepared to find erroneous the trial court’s determination refusing to quash the subpoenas.

MARCUS, J., concurs for reasons assigned by Justice CALOGERO.

DENNIS, J., concurs for the reasons stated by CALOGERO, J. and because we cannot assume that applicants will be denied their rights to remain silent and to assistance of counsel at each stage of the proceedings.


author: HEARD, Judge.

text:
    Alton M. FOLSE et al., Plaintiffs-Appellants, v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, Defendant-Appellee.
    No. 5921.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      William E. Skye, Alexandria, for plaintiffs-appellants.
    Marshall W. Wroten, Philip K. Jones, Robert J. Jones, Norman L. Sisson, William T. Kivett by William T. Kivett, Baton Rouge, for defendant-appellee.
    Before WATSON, FORET and HEARD, JJ.
   HEARD, Judge.

Plaintiffs, Alton M. Folse and Frank M. P. Deville, appeal from a judgment which rejected plaintiffs’ request for an injunction and found that they were not in possession of the land in question.

The Highway Department, defendant in this suit, engaged in a project to widen Louisiana Highway 107 in Pineville, Rap-ides Parish. The plaintiffs are landowners whose property adjoins the proposed highway project. The Highway Department opened bids on this project and awarded the contract to the lowest bidder, but before it signed the contract and awarded the Work Order, plaintiffs filed this suit for a preliminary injunction under LSA-C.C.P. art. 3663(2), claiming that they had been in possession for more than one year of a portion of the property included in the project, and asking that the Highway Department be enjoined from disturbing their possession until such time that the Highway Department had acquired the property by conventional deed or by condemnation proceedings.

Admittedly the Highway Department has never instituted expropriation proceedings in regard to this property. The property in question was originally owned by plaintiffs’ ancestors in title, Scipio E. Compton, who in 1905 granted a servitude to the Louisiana Railway and Navigation Company for a railroad. In 1921, the Louisiana Railway and Navigation Company transferred its rights to the Parish of Rapides tó construct a parish road. In 1970, the Police Jury of Rapides Parish declared portions of this property abandoned, as no longer needed for highway purposes, and allegedly transferred all rights thereto to the contiguous property owners.

Plaintiffs claim title to the property by virtue of the 1970 Resolution of the Rapides Parish Police Jury. The defendant Highway Department claims title by virtue of Act 95, 1921, now embodied in R.S. 48:191, which act provides that the state should assume control and maintenance of certain designated highways.

Trial was held on February 10, 1975 before Judge Jimmy M. Stoker, on plaintiffs’ petition for a preliminary injunction, and judgment was rendered on that same day granting plaintiffs a preliminary injunction.

On February 26, 1975, the Highway Department presented to the court a pleading entitled “Motion and Order”, which document in effect asked that the matter be converted under LSA-C.C.P. art. 3657 into a petitory action. The trial court converted the respondent’s “Motion and Order” into a request for a new trial, and granted same on all issues inherent in the pleadings as amended.

On March 10, 1975, the matter was reheard and taken under advisement, and judgment was thereafter rendered on March 13, 1975, recalling and setting aside the preliminary injunction previously issued, reserving to plaintiffs and defendants all rights so far as concerns the ownership of any right, title and interest in and to the property, or servitude in question. This judgment was read and signed on March 18, 1975.

In his oral reasons for judgment of March 13, 1975, the trial judge held that he regarded the injunction question as one in which he could exercise some discretion under this court’s ruling in Silberman v. Beaubouef, 175 So.2d 873 (La.App. 3 Cir. 1965). He likewise held that he did not believe he should ignore the title question, as it has been held, and he cited five federal cases, that a preliminary injunction should not be issued unless it was probable that the parties seeking the injunction will ultimately succeed.

The court then proceeded into a lengthy review of the title question, wherein it found the following facts: (1) That the Highway Department did not have title to the property; (2) that che police jury, although originally granted only a servitude over the property, had become the owners of such by virtue of the fact that they had built and maintained a road. He then went on to hold that the Police Jury did not mean in its 1970 Resolution to convey this property to the contiguous property owners, and/or if it did, it could not legally do so because the Police Jury cannot declare public property which is in use abandoned.

In his reasons of March 13, 1975, the trial court seems to concede that title with regard to an injunction under LSA-C.C.P art. 3663(2) should not be an issue, but concludes, “It will come into court one way or the other.” The court then went on to say that if it should be later proven in a trial on the merits that the Police Jury did intend to give plaintiffs title, they could be compensated for monetarily, for even if the state conceded that the plaintiffs are now the owners of the property, they would be subject to having their property expropriated and monetary compensation is all that they could hope to realize in the taking of their property.

On April 29, 1975, the defendant by oral motion, had its action, insofar as it asserted a petitory action through the motion and order filed on February 25, 1975, dismissed without prejudice. (See minute entry, TR. P- 4.)

Thereafter, the matter was assigned for trial and hearing was held on January 29, 1976 before Judge Guy E. Humphries. Plaintiffs, in their brief, assert that at the pre-trial conference, all parties agreed that it was to be a hearing on a petitory action. This was stated and agreed to by the trial judge (TR. p. 180). Judgment was rendered by the trial court on May 27, 1976. Although the trial judge in his reasons for judgment stated that he felt the suit was an injunction suit, he found that the plaintiffs were not in possession of the land (TR. p. 62). From that judgment, plaintiffs appealed.

Plaintiffs-appellants contend:

1. That the first trial judge erred in reversing himself and ruling that this was a possessory action under C.C.P. arts. 3655-3662, coupled with a request for a preliminary injunction under C.C.P. art. 3663(1), and was not simply a request for a preliminary injunction under C.C.P. 3663(2);

2. That the first trial judge erred in changing defendant’s request to convert the proceedings to a petitory action into a motion for a new trial;

3. That the first trial judge erred in ruling that plaintiffs had not proved necessary possession and in recalling the preliminary injunction previously rendered;

4. The second trial judge erred in first decreeing that the matter would be tried in a petitory action and then reversed himself by holding that plaintiffs had failed to prove possession;

5. The second trial judge erred in not awarding plaintiffs damages based on the value of the land taken.

The injunction portion of the above issues may be moot by virtue of the fact that this court denied the Application for Writs filed by the plaintiffs which allowed the Highway Department to proceed to sign the contract and award the work order, and the contractor has now taken into the widened highway the two disputed strips of land. However, the issue of whether plaintiffs proved necessary possession of the two disputed strips is not moot, except that if the court should rule that the defendants did turn the matter into a petitory action, even this point becomes moot because under the law, the defendants admit the possession of the plaintiffs if they turn the possessory action into a petitory action. C.C.P. Article 3657 states:

“The plaintiff may not cumulate the petitory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action. If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the posses-sory action is abated.”
“When, except as provided in Article 3661(l)-(3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.”
“If, before executory judgment in a possessory action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possessory action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein.”

Appellants’ first contention is erroneous. The first trial judge did not find that appellants had coupled a possessory action with request for injunctive relief, he merely found that appellants had not proved the degree of possession required to grant an injunction under C.C.P. 3663(2).

As to plaintiffs’ second contention, while there has been no case found which allowed the trial court to change the pleadings of a party on its own motion, the action taken by the trial court in granting a new trial on the injunction proceeding has to be deemed harmless error. C.C.P. art. 1971 authorized the trial court to grant a new trial on its own motion. While the trial court exercised its discretion in an unorthodox manner, the result was harmless.

The third contention of the appellants is that the first trial judge erred in finding that plaintiffs had not proven necessary possession required by C.C.P. art. 3663(2). In order to qualify for injunctive relief of the article, a plaintiff must prove (1) possession of the property for more than one year prior to the disturbance; (2) that the disturbance occurred, and (3) that suit was filed within one year of the disturbance. Parkway Development Corp. v. City of Shreveport, 330 So.2d 646 (La.App. 2nd Cir. 1976); Babington Children Trusts v. Eimer, 285 So.2d 792 (La.1973); and Indian Bayou Hunting Club, Inc. v. Taylor, 261 So.2d 669 (La.App. 3rd Cir. 1972).

Plaintiffs based their proof of possession on the doctrine that possession of a part of property is possession of the whole. In order for this doctrine to be applicable, plaintiffs must prove that they have title to the whole of the property involved. C.C. arts. 3437 and 3498; Babington Children Trusts v. Eimer, supra. Trial court found, as a matter of fact, that the plaintiffs had not proved that they held legal title to the property involved in this suit. Therefore, they do not have the legal possession needed under C.C.P. art. 3663(2).

Plaintiffs’ fourth contention is that the second trial judge erred in decreeing that the matter to be tried as a petitory action and later reversing himself so as to rule that it was not a petitory action and plaintiffs failed to bear their burdens of proof. There is no proof beside a statement by plaintiffs’ attorney found on Page 180 of the transcript that all had agreed that the hearing was to be a petitory action and in his reasons for judgment, the second trial judge stated that he felt the action was a hearing on an injunction. He also found, as a matter of fact, that the plaintiffs had failed to prove the possession necessary to uphold an injunction of C.C.P. art. 3663(2). He agreed with the findings of fact and law of the first trial judge.

We find no manifest error in the findings of the trial court and for the above reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.


author: ELLIS, Judge:

text:
    David P. LEVY et al. v. Louis B. GRAHAM et al.
    No. 11376.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Maurice J. LeGardeur, Jr., Covington, and John B. Wilkinson, New Orleans, for plaintiffs, appellants.
    J. B. Kiefer, New Orleans, for defendants, Louis B. Graham, John A. Cole and Mrs. Adelia Hey, appellees.
    Ralph R. Miller, Norco, for intervenor, Joseph D. Vinson, appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

On October 8,1968, Louis B. Graham sold Lots 27 and 29 of Oaklawn Subdivision in St. Tammany Parish, together with a 40 foot strip adjacent to Lot 27, to Mrs. Rose Marie Frazier, wife of, and Henry Toomer Morrison. The deed contained the following provision:

“IT IS AGREED AND UNDERSTOOD by and between the parties hereto that the following restrictive covenants are imposed as serious consideration for the sale and transfer, and that this sale and transfer would not have been made without the following restrictions, to wit; “The said property conveyed herein shall be used for residential purposes only, and no business, business enterprise nor any noxious or offensive establishments may be built or carried on on said property. “IT IS FURTHER AGREED AND UNDERSTOOD that the above restrictions may be altered by the unanimous consent of the owners of the aforedescribed lots 27 and 29, as well as by the unanimous consent of the owners of Lots 31, 33 and 35.”

This suit was subsequently filed by Messrs. Levy, Banjavich, Robin and Wilkinson, together with Balehi Marine, Inc., against Mr. Graham, John A. Cole and Mrs. Adelia Hey, the owners of Lots 31, 33 and 35, seeking a declaratory judgment that Lots 27 and 29, and the adjacent 40 foot strip, be declared free of the restriction contained in the October 8, 1968, deed from Mr. Graham to Mr. and Mrs. Morrison. After an exception of no cause of action was overruled by the trial court, answer was filed on behalf of all defendants, asking that plaintiffs’ petition be dismissed.

Thereafter, a motion for summary judgment was filed by plaintiffs, based on the “pleadings and admissions on file”, and alleging that plaintiffs are entitled to judgment as a matter of law. No supportive affidavits were filed.

A “Motion for Partial Summary Judgment” was then filed by Louis B. Graham, alleging that the only matter at issue was the interpretation of the restrictions contained in the deed to Mr. and Mrs. Morrison; that there was no issue of material fact; and that he was entitled to judgment declaring the validity of the said restrictions as a matter of law.

A petition of intervention was filed by Joseph D. Vinson, alleging that he had purchased the property of Mrs. Adelia Hey, and that he desired to be made a party defendant.

After a hearing on the motions, two judgments were rendered: one denying plaintiffs’ motion for summary judgment; and the second granting judgment in favor of Mr. Graham and Mr. Vinson recognizing the validity and binding effect of the said restrictions. Plaintiffs have appealed from both judgments.

Plaintiffs’ viewpoint in this court is that, since the restriction is not couched in terms which specifically state that it is to be binding on the successors in title of the Morri-sons, it must be construed as personal in nature as to the Morrisons and not binding on their heirs and assigns.

Restrictive covenants are generally characterized as continuous, non-apparent servitudes, which can only be established by title. Articles 727, 728, 766, Civil Code; McGuffy v. Weil, 240 La. 758, 125 So.2d 154 (1960). In order to have effect on the successors in title of the immediate parties to the act containing the restriction, the obligations imposed thereby must be on or in favor of an estate, rather than a person. Article 709, Civil Code. No particular form is necessary for the creation of such a servitude, but the intention to create the servitude must clearly appear from the title by which it is established.

Article 753 of the Civil Code states: “Servitudes which tend to affect the free use of property, in case of doubt as to their extent or the manner of using them, are always interpreted in favor of the owner of the property to be affected.”
In McGuffy v. Weil, supra, the court said: “The law favors the free and unrestrained use of immovable property. It follows that any doubt as to the interpretation of a servitude encumbering property must be resolved in favor of the property owner. LSA-Civil Code, Article 753. The intention of the proprietor to establish a servitude must clearly appear from the title document.”

After reviewing the language of the restrictive clause at issue, in the light of the foregoing principles of law, we are of the opinion that the court below correctly resolved the case. Although the words “never” and “forever” do not appear in the clause, we think the entire tenor thereof reflects that it was intended to create more than a personal obligation on the part of the Morrisons. We also note that the restrictive language appears in the deed immediately after the description, and immediately before the habendum clause, which reads:

“To have and to hold the above described property unto the said purchasers, their heirs and assigns forever.”

We think this indicates an intent on the part of the parties that the property is transferred subject to a limitation intended to bind all subsequent owners of the property.

We think further that the fact that the restriction can only be modified with the consent of the owners of Lots 31, 33 and 35, indicates that the obligation created by the restrictive clause is in favor of those estates. The provisions of Article 754 of the Civil Code would appear to foreclose any characterization of the restrictive clause except as a servitude.

Finally, under Article 2012 of the Civil Code, a servitude is a real obligation. Article 2015 provides as follows:

“Not only servitudes, but leases and all other rights, which the owner had imposed on his land before the alienation of the soil, form real obligations which accompany it in the hands of the person who acquires it, although he have made no stipulation on the subject, or they be not mentioned in the act of transfer. The purchaser may, if the circumstances permit it, have relief against the seller for concealment of such charges; but the law establishes the rule that no one can transfer a greater right than he himself has, except where the neglect of some formality required by law has subjected the owner of the real incumbrance to a loss of his right, in favor of a creditor or bona, fide purchaser.”

Since Mr. and Mrs. Morrison acquired the property subject to the restriction, they could not transfer to the plaintiffs herein any more than they received. Any attempt on their part to release or alter the restriction can be of no effect.

Plaintiffs also contend that the fact that the restrictions may be “altered by the unanimous consent of the owners of the aforesaid Lots 27 and 29, as well as the unanimous consent of the owners of Lots 31,33 and 35,” makes the obligation personal rather than real. They rely on the case of Le Blanc v. Palmisano, 43 So.2d 263 (La.App.Orl.1949), in which the following restriction was at issue:

“No commercial property shall be permitted to be constructed or occupied as such on this property except by written consent of the Claiborne Avenue Extension Realty Company, Inc.”

The court properly found that language to create a personal obligation, since the restriction could be altered by the Realty Company at any time without the consent of any of the other property owners in the subdivision and therefore did not inure to their benefit. In this case, we have found that the restrictions imposed are in favor of Lots 31, 33 and 35, and are real rather than personal in nature.

The judgment appealed from is therefore affirmed at plaintiffs’ cost.

AFFIRMED.


text:
    Paul E. KNIGHT v. CHEROKEE NATIONAL LIFE INSURANCE COMPANY.
    No. 11380.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Autley B. Newton, Hammond, for Paul E. Knight, plaintiff appellee.
    Clarence F. Favret, Jr., New Orleans, for Cherokee Nat. Life Ins. Co., defendant appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

On October 25, 1971, plaintiff Paul E. Knight executed a promissory note for $4,279.68 in favor of Citizens National Bank in Hammond, payable in monthly installments of $118.88. Included in the principal amount of the note was the sum of $256.82 for Credit Life Insurance and accident and health insurance. The latter coverage provided that the monthly installments would be paid by the insurer, Cherokee National Life Insurance Company, during any period of Mr. Knight’s total disability, while the note remained unpaid.

On or about April 20, 1972, Mr. Knight allegedly became totally disabled. A claim was made under the policy on June 21,1972, but payment thereof was refused on the ground that Mr. Knight was disabled prior to the date of issuance of the policy.

This suit was filed by Mr. Knight for benefits allegedly due under the policy. After trial on the merits, judgment was rendered in favor of plaintiff for $3,108.56, and defendant has appealed.

As the result of an industrial accident, Mr. Knight began drawing Social Security disability benefits in 1969. He was still drawing these benefits as of the time of trial herein. However, as of October 25, 1971, he was working for Hurricane Fence Company, taking orders on the telephone and making estimates. In addition, he was working with his son steam cleaning houses.

On or about April 20, 1972, he discovered that he was suffering from constrictive cali-cific tendinitis of the bilateral deltoid area, as a result of which he was unable to continue either his work for Hurricane Fence, which involved driving a car, or his house cleaning activities. Since that time, Mr. Knight has been unable to work at any occupation.

At the time the loan was made and the insurance purchased, the bank was aware that Mr. Knight was disabled, because that information had been given it on an insurance application made in connection with a prior loan.

Under the terms of the policy, total disability is defined as follows:

“As used in this Agreement, total disability means the inability of an insured debtor to engage in any occupation for remuneration or profit, which inability is the result of accidental bodily injury sustained or sickness originating while this Agreement is in force and while such debtor is actually insured hereunder and which requires the insured debtor to be regularly treated by a licensed physician.”

The policy also included the following exceptions:

“This agreement does not cover and no indemnity shall be paid for disability which is caused or contributed to by (a) childbirth, abortion, miscarriage or pregnancy; (b) accidental bodily injury sustained or sickness which originated before the effective date of this insurance; (c) war or any act of war or by any cause while the insured debtor is in the armed forces of any country; (d) injury which was intentionally inflicted by the insured debtor whether sane or insane.”

Our courts have held that total disability provisions such as the above “do not contemplate that the insured is to be rendered absolutely helpless in order to recover, but only that he be unable to do substantially all the material acts necessary to the prosecution of his business or occupation in his customary and usual manner.” Ayres v. N.Y. Life Insurance Co., 219 La. 945, 54 So.2d 409; Felker v. Aetna Life Ins. Co., 234 So.2d 758 (La.App. 1st Cir. 1970).

It is defendant’s contention that plaintiff is not now totally disabled because he was able to do the same things both before and after April 20, 1972. The record does not bear this out. The medical testimony is unanimous that plaintiff has been totally disabled since April 20, 1972. Plaintiff’s own testimony is uncontradicted that he can no longer do the work he was doing prior to that time. The trial judge must have accepted this testimony and we find no manifest error.

Defendant also argues that plaintiff’s condition antedated the issuance of the policy, and that plaintiff cannot recover because of the above quoted exceptions in the policy. Admittedly, plaintiff has suffered from a long series of ailments, which were sufficient to render him “disabled” for Social Security purposes. However, there is no medical or other evidence to show that the tendinitis existed as of the date of issuance of the insurance. The argument is without merit.

We find plaintiff to be “totally disabled” within the meaning of the policy, as a result of the tendinitis, and that benefits under the policy are therefore payable.

Plaintiff has answered the appeal, asking that he be awarded penalties and attorney’s fees for the alleged arbitrary and capricious failure of the insurer to pay. We think that the fact that plaintiff was totally disabled for Social Security purposes when the insurance herein was issued casts a cloud on his claim sufficient to exempt the insurer from the payment of penalties and attorney’s fees, and constitutes just cause for the refusal. R.S. 22:657; Mistric v. Republic National Life Ins. Co., 314 So.2d 472 (La.App. 1st Cir. 1975).

The judgment appealed from is therefore affirmed, at defendant’s cost.

AFFIRMED.


text:
    Willie E. ALLEN v. JOHN F. BEASLEY CONSTRUCTION COMPANY et al.
    No. 11390.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    William C. Bradley, Baker, of counsel, for plaintiff-appellant, Willie E. Allen.
    Robert J. Vandaworker, Baton Rouge, of counsel, for defendant-appellee, John F. Beasley Const. Co.
    John B. Noland, Breazeale, Sachse & Wilson, Baton Rouge, of counsel, for defendant-appellee, Clarence 0. Durand, Preston E. Waller and Henry Leroy Schilling.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Plaintiff Willie E. Allen was injured when he allegedly tripped over a piece of wire and fell while working at the construction site of “One American Place” in Baton Rouge. One American Place is a large, high rise building, which was being constructed as a joint venture by Haas & Hay-nie Corporation and Tudor Construction Company. The structural steel work, and the placing of certain metal forms, was subcontracted by John F. Beasley Construction Company.

Plaintiff, an employee of the joint venture, brought this suit against Beasley and Clarence 0. Durand, Preston E. Waller and Henry Leroy Schilling, executive officers of the joint venture, alleging that their negligence was the proximate cause of his injuries. Continental Insurance Company intervened to recover workmen’s compensation benefits paid by it to plaintiff. After trial on the merits, judgment was signed dismissing both plaintiff’s suit and the intervention. From this judgment, plaintiff has appealed.

The criteria necessary for the imposition of liability in the so called “executive officer” cases are set forth in Canter v. Koehring Company, 283 So.2d 716 (La.1973)) as follows:

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
“2. This duty is delegated by the principal or employer to the defendant.
“3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to- discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of duty.
“4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.”

It is not contested that each of the individual defendants bore the responsibility for providing a safe environment. However, the record does not reveal any breach of this responsibility. To the contrary, it reflects an ongoing concern for safety on the part of all three defendants. Weekly safety meetings, which were attended by plaintiff, were held. At those meetings, all employees were instructed in safety techniques, including recognition and removal of hazardous conditions. In addition, a full time clean-up crew was employed, with no responsibility other than removal of debris which might cause such an accident. It is not suggested that this crew did not perform its duties in a proper manner. Each of the individual defendants testified that he was constantly on the look-out for hazardous conditions, which if discovered, would be ordered remedied at once.

There is no evidence to indicate how long the alleged hazardous condition in this case had existed, or that it was known to any of the individual defendants. We agree with the trial judge that no negligence was shown on the part of these defendants so as to render them liable under the rationale of the Canter case, supra.

We further note that plaintiff’s own testimony casts serious doubt on his story of how the accident happened.

With respect to Beasley, the record is completely devoid of evidence of any negligence on its part.

The judgment appealed from is affirmed, at plaintiff’s cost.

AFFIRMED.


author: CHIASSON, Judge.

text:
    AMERICAN BANK & TRUST COMPANY v. Emery J. FONTENOT.
    No. 11391.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    M. Aubrey McCleary, Jr., Baton Rouge, of counsel, for plaintiff-appellee, American Bank & Trust Co.
    Warren L. Mengis, Baton Rouge, of counsel, for defendant-appellee, Emery J. Fon-tenot.
    Ben W. Lightfoot, Baton Rouge, of counsel, for third party defendant, Dr.' Allen Jackson.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

American Bank & Trust Company, plaintiff, filed suit on a promissory note against the maker thereof, Emery J. Fontenot, ap-pellee and third party plaintiff, for the sum of $19,173.54 plus interest and attorney’s fees.

The appellee, while admitting the indebtedness to plaintiff, alleged that he had sold the property which secured the promissory note to Fontenot Building, Inc., intervenor and appellee, and that Fontenot Building had then sold the property to Dr. Allen Jackson, third party defendant and appellant, who assumed the obligation under the said note. Based on this allegation the appellees filed a third party action against the appellant alleging that the appellant was liable to the appellees for any amount awarded the plaintiff on its original demand.

Following a trial on the merits the District Court rendered judgment in favor of the plaintiff and against Emery J. Fontenot for the amount prayed for and in favor of the appellees and against the appellant for the amount awarded the plaintiff.

Only the judgment on the third party demand has been appealed.

The appellant contends that:

“The Court erred in determining that the error of Dr. Allen Jackson, which was initiated by the agent of Emery J. Fon-tenot and or Fontenot Building, Inc. was not such as to vitiate- the contract which Dr. Allen Jackson executed.”

The question of the validity of the contract between the appellees and the appellant was presented to this Court in Jackson v. Fontenot Building, Inc., La.App., 314 So.2d 516 (1st Cir. 1975), writs refused, La., 319 So.2d 442. As was recognized by the District Court the exception of res judicata and the doctrine of collateral estoppel do not apply in this case because the parties are not the same and, therefore, the judgment rendered in the previous litigation is not controlling.

The appellant contends that the contract is invalid because of an error of motive, which error resulted from a misrepresentation by the alleged agent of the appel-lees of the gross income to be realized from the property in question. (For a detailed treatment of the facts of this case see Jackson v. Fontenot Building, Inc., supra.)

Article 1826 of the Civil Code provides:

“No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.”

From the evidence presented in this case, which evidence includes the records of the earlier litigation, it can be seen that the appellant never told Emery Fontenot or his agent that the gross income generated by the property was the principal cause of the contract. While gross income may have been, for the appellant, the principal cause of the agreement, it cannot be presumed from the nature of the contract that Emery Fontenot knew this fact. Therefore, there was no error of motive sufficient to vitiate the contract executed by the appellant.

For the above reasons, the judgment appealed is affirmed. Costs of this appeal to be paid by the appellant. .

AFFIRMED.


author: PONDER, Judge.

text:
    Gilmer P. HINGLE v. DeBLIEUX SALES AGENCY et al.
    No. 11371.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Warren L. Mengis, Baton Rouge, of counsel for plaintiff-appellant Gilmer P. Hingle.
    Kenneth E. Barnette, Baton Rouge, of counsel for defendant-appellee DeBlieux Sales Agency et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is an action for damages resulting from an automobile collision. Plaintiff has appealed the dismissal of his suit.

The only issue is whether the finding of the trial court was manifestly erroneous.

We affirm.

Plaintiff was in a small foreign car. Defendants were the owner and insurer of a Chevrolet truck in which plaintiffs estranged wife was a passenger and of which his mother-in-law, Mrs. DeBlieux, was driver.

The evidence is in hopeless conflict. Plaintiff’s version is that Mrs. DeBlieux pulled into his lane of traffic and hit his vehicle head on. She then proceeded to push his vehicle back about 180 feet.

The version of Mrs. DeBlieux and of Mrs. Hingle is that plaintiff ran into their vehicle. They were travelling very slowly and admittedly not looking ahead just prior to the accident. Both indicated that when they turned to the front, plaintiff’s vehicle was right in front of them. After the vehicles bumped lightly and separated, the plaintiff then “geared down” and ran into the front of the truck. Mrs. DeBlieux then pushed the plaintiff’s car back some distance. She then drove off because she was afraid of plaintiff.

Only one disinterested witness testified about the accident. Mrs. Evelyn Smither did not actually see the impact, which occurred in front of her house. However, she looked out the window when she heard the noise and saw the DeBlieux vehicle pushing the plaintiff’s car backward. She was not able to say who was responsible for the collision.

The trial court accepted the testimony of Mrs. DeBlieux and her daughter as being true. Its determination of credibility should not be disturbed in the absence of manifest error. Canter v. Koehring Company, La., 283 So.2d 716 (1973). We can not say the judge so erred.

For the above reasons the judgment of the trial court is affirmed; plaintiff is cast with all costs.

AFFIRMED.