source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    Percy M. ALEXANDER, Jr., Receiver, et al. v. BURROUGHS CORPORATION.
    No. 61106.
    Supreme Court of Louisiana.
    May 22, 1978.

      Harry R. Nelson, Prank M. Dodson, Roland J. Achee, Shreveport, for plaintiffs-applicants.
    S. Maurice Hicks, Jr., Lunn, Irion, Switz-er, Johnson & Salley, Shreveport, for defendant-respondent.
   DIXON, Justice.

This is a redhibitory action arising from the sale of an accounting computer. The suit was brought by the receiver for Peerless Supply Co., Inc., (the purchaser) and General Electric Credit Corporation, which financed the purchase.

In its opinion, the district court, finding redhibitory vices in the machine, ordered the rescission of the sale, but refused to award damages, attorney’s fees, or the return of that part of the purchase price paid by Peerless, and expenses incurred by Peerless, holding that those expenses of the sale were offset by Peerless’ use of the machine.

The court of appeal affirmed the trial court’s finding of redhibitory defects and, reversing the trial court’s rejection of plaintiffs’ other demands, awarded the return of the purchase price, expenses, attorneys’ fees, and damages, and ordered the cancellation of the chattel mortgage. However, the appellate court denied plaintiffs’ claim for reimbursement of the $5100 finance charge Peerless incurred in obtaining the $17,000 loan from GECC. The court of appeal considered that the finance charge claimed by Peerless was equivalent to a demand by Peerless for interest on part of the purchase price received and used by Burroughs, and held that Burroughs was entitled to interest free use of the purchase price “as an equivalent to Peerless’s use of the computer.” Legal interest was awarded the plaintiffs from rendition of the trial court judgment. 350 So.2d 988 (La.App.1977).

Plaintiffs applied for review contending that the appellate court erred in holding Peerless’ use of the computer was compensated by Burroughs’ use of the purchase price, and that legal interest should have been awarded from date of judicial demand, rather than from date of trial court judgment. 353 So.2d 1034 (La.1978).

Peerless purchased the computer from Burroughs in February or March of 1971. Even before the computer was delivered on April 24, 1971, difficulties were experienced. (Peerless’ payroll employee had used the machine at Burroughs’ offices and testified that it “jumped the program.”). Testimony at trial established that there was serious malfunction occurring with great frequency from the time the computer was installed. In late October, 1971, after the company had fallen behind in its record keeping due to the machine’s poor performance, Peerless wrote a letter to Burroughs demanding that the machine be repaired to perform properly, or that Burroughs cancel the contract and pick up the machine. Peerless also demanded that Burroughs supply additional help to enable Peerless to update its records. In November, 1971, Burroughs replaced the memory bank on the computer, Peerless grounded the electric receptacle in which the machine was plugged, and Burroughs complied with Peerless’ request to supply help.

Conditions seemed to improve, but soon breakdowns resumed with increasing frequency. Due to the continuous problems with the machine, Peerless employees were required to review much of the machine’s calculations, resulting in their working overtime and causing additional expense and inconvenience to the company.

All repairs were under the company’s contractual warranty until March of 1972. Invoices for repair service showed that from late March to late May, 1972, repairs were made on the computer every few days.

In March of 1972 Percy Alexander was appointed receiver to carry out a Chapter II reorganization of Peerless. In June of 1972 he abandoned the company’s use of the machine and had his attorney make formal demand of rescission on Burroughs. Burroughs refused. Suit was filed October 25, 1972; trial was held October 16 and 17,1975 and judgment was rendered March 8, 1977.

At the time suit was instituted, the following Civil Code articles, dealing with the liability of a seller for redhibitory vices, were in effect:

“Art. 2531. The seller who knew not the vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses.
Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

Burroughs, as a manufacturer, is presumed to know of the defects of the thing which it manufactures and therefore is deemed to be in bad faith. Rey v. Cuccia, 298 So.2d 840 (La.1974); Radalec, Inc. v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955); Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952); George v. Shreveport Cotton Oil Co., 114 La. 498, 38 So. 432 (1905). Hence, article 2545 is applicable to the instant case.

Peerless argues that a bad faith seller should not be entitled to compensation from the purchaser for the use of the thing because C.C. 2545, setting out the obligation of the bad faith seller, omits any reference such as that found in C.C. 2531, where the good faith seller is obligated to return the price and expenses of the sale “unless the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses.” Alternatively, Peerless argues that any compensation due the seller is limited to “fruits” by the code article, a term not broad enough to include “use”.

Article 2545 does not specifically provide that the seller is to be compensated for the use of the defective thing. The language of the article, however, (“besides the restitution of the price and repayment of the expenses”) appears to incorporate the provisions of article 2531 even though they are not set out in their entirety. The courts of appeal have not generally treated good faith and bad faith vendors differently in compensating the vendors for the buyer’s use of the defective thing.

Article 2531, as it read at the time of this suit, merely provided a credit to the seller for the “fruits” drawn from the thing by the purchaser against the expenses the purchaser incurred by the sale or by the preservation of the thing. It was not until 1974 that the statute’s language was amended to allow a credit for the value of any “fruits or use.” La. Acts 1974, No. 673 § 1. Plaintiffs argue that “fruits” and “use” are distinct incidents of ownership, and that the legislative amendment merely confirmed this distinction, because if the word “fruits” had included the buyer’s “use,” there would have been no need for the amendment.

Some writers have viewed the 1974 amendment as merely a codification of the jurisprudence on the subject. 35 La.L.Rev. 597, 642-43 (1975); 49 Tul.L.Rev. 484, 488-89 (1975). Nevertheless, a review of the cases shows that the courts, and often the same circuits, were inconsistent in the allowance or disallowance of a credit for use. In any event, the amendment has clarified the confusion that had existed.

A credit for a purchaser’s use of a product may be proper in certain instances, even in favor of a bad faith seller. In the absence of specific provisions punitive damages are not obtainable in Louisiana; the object of the provisions governing redhibi-tory vices is to restore the purchaser, as much as possible, to the condition he enjoyed prior to the sale. Compensation for the buyer’s use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair. One court held that a buyer had not waived his right to a redhibitory action by his continued use of a defective refrigeration truck for the following reasons:

“These decisions hold that, in present circumstances, upon rescission of the sale the buyer is entitled to the return of the full purchase price, despite the usual wear and tear occasioned by the buyer’s use of the vehicle over the several months during which the seller is attempting to repair it. The use of a vehicle with red-hibitory defects is regarded as at the seller’s risk during the period in which the seller attempts to remove the defects, if in the ultimate event the redhibitory defects are not repairable and do in fact render the vehicle totally useless for the purpose for which purchased; since this use by the buyer is continued upon the actual or implied representation of the seller that the defects are repairable and are not of a redhibitory nature entitling the buyer to rescission. . . . ” Hebert v. Claude Y. Woolfolk Corp., 176 So.2d 814, 817 (La.App., 3d Cir. 1965). (Emphasis added).

In the Hebert case, supra, no credit was allowed for the purchaser’s use for 8500 miles over 7V2 months, because the truck’s defects were found to have rendered it totally useless. Often a defect in the thing, although redhibitory, does not render the thing absolutely useless. In such cases, where the purchaser has derived some benefit from the thing before its return, in spite of the defects, it is proper to award a credit for use.

In the instant case, the Court of Appeal recognized that Burroughs failed to prove the value of Peerless’ use of the computer to enable it to assert a credit for the use. 350 So.2d at 993. Nevertheless, the court followed “ . . . the rule that use of the thing and use of the price are equal . . .” Id., held that Burroughs was entitled to the interest-free use of the $22,000 plus purchase price for over 6 years, and denied Peerless’ claim for the recovery of the $5100 finance charge it paid to GECC to borrow most of that purchase price.

This “rule of equivalencies” was based on the early cases of Farmer v. Fisk, 19 La. 191, 9 Rob. 351 (1844) and Harvey v. Kendall, 2 La.Ann. 748 (1847). Both cases, involving redhibitory actions for defects in slaves, held that, although the vendor could not deduct the value of the slave’s services from the return of the purchase price, the interest on the purchase money paid to and held by the vendor was considered equivalent to the use of the slave, and thus the two amounts were allowed to be set off. The Court in Farmer, supra, cited the French commentator, Troplong, as authority. However, although Troplong and most of the French commentators agree that the fruits of the thing are compensated by the interest on the price, they do not say that the two should automatically be deemed equivalents. 30 La.L.Rev. 508, 516 n. 42 (1970). The Second Circuit recently recognized the inequity in such a “rule of equivalencies”:

“ . . . the Supreme Court, in the Farmer and Harvey cases, supra, did not hold that in the recission of cash sales the use of the thing by the purchaser and the use of the purchase money by the seller must in all cases be considered as exact equivalents. Cf. Comment, 30 La.L.Rev. 508 (1970). Such an interpretation of Civil Code Article 2531 would also tend to defeat the purpose of replacing the parties in the same position in which they were before the sale because it would unfairly penalize the seller in the situations where the use of the thing sold is substantially more valuable then [sic] the use of the purchase money. Instead, the court is required to independently assess the respective values received by the buyer and the seller and determine the extent to which one has been compensated by the other.” Smith v. Max Thieme Chevrolet Co., 315 So.2d 82, 88 (La.App., 2d Cir. 1975). See also 30 La.L.Rev. at 509, n. 6.

The facts of the instant case present a situation in which the buyer, rather than the seller, is penalized by the application of the rule of equivalencies. The record is convincing that the defects in the Burroughs computer were so significant and consistent as to render the machine absolutely useless to Peerless. We recognize that for approximately two to three months after the computer’s memory bank was replaced and some wiring was done in the building, the computer functioned with much less difficulty. Nevertheless, we find that the benefit of that use was overridden by the serious malfunction before and after that time which required company employees to monitor the machine’s figures for accuracy, watch payroll checks to make sure that the correct name was recorded, and eventually abandon use of the computer for another accounting machine ten years older, which the company had used prior to the computer purchase. All of this caused the company to incur substantial overtime expenses for its employees who were forced to manually update accounts. In addition, the receiver testified that due to the machine’s inaccurate billing (often the computer would credit or charge the wrong accounts) the company was forced to sustain the loss of unpaid bills which could not be verified in the company records. Hence, we conclude that the use of the computer did not bring value to the buyer; therefore, the court of appeal erred in denying plaintiffs recovery of the $5100 finance charge incurred in obtaining the loan from GECC, an “expense occasioned by the sale.” C.C. 2531. To the extent that Farmer v. Fisk, supra, and Harvey v. Kendall, supra, are inconsistent with this opinion, they are overruled.

Plaintiffs also contend that the appellate court erred in awarding interest from rendition of the trial court’s judgment on March 8, 1977 rather than from the date of judicial demand on October 25, 1972. The court found that although Peerless discontinued use of the computer in June, 1972, it was still in the company’s possession and “theoretically . . . available for use,” 350 So.2d at 993.

Defendant contends that plaintiffs’ suit was grounded in contract and that R.S. 13:4203, which provides that “legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto’ . . .” does not apply. Hence, the argument is made that since no decision regarding the rescission of the sale in a redhibition action is made until judgment, interest should not begin to run until the date of that judgment.

That this suit has a contractual rather than a delictual source, making R.S. 13:4203 inapplicable, is no impediment to plaintiff’s demands for interest.

One of the incidents of the obligations of contracts is that the one who violates those obligations is liable for damages “which the other party has sustained by his default.” C.C. 1930. Damages are due “from the moment” of an active violation of a contract (C.C. 1932) and from “the time that the debtor has been put in default” when the breach has been passive. C.C. 1933. A debtor may be put in default “either by the commencement of a suit, by a demand in writing . . . or in other ways. C.C. 1911. The damages due for delay in the performance of an obligation to pay money are called interest.” C.C. 1935. “All debts shall bear interest at the rate of seven per centum per annum from the time they became due, unless otherwise stipulated.” C.C. 1938.

The decisions involving interest on sums recovered by suit are naturally myriad and because of their great number, if for no other reason, inconsistent. There is, however, a thread of consistency among the cases. Article 554 of the Louisiana Code of Practice of 1825 provided that interest should not run on accounts or unliquidated claims, but was repealed by La.Acts 1839, No. 53 § 1. This Court once commented,

“We have uniformly held that, since the passage of that act, all sums due on contracts bear interest from judicial demand, even where none has been stipulated, and the demand is unliquidated.” Sullivan v. Williams, 2 La.Ann. 876, 878 (1847).

See also Petrie v. Wofford, 3 La.Ann. 562 (1848); Calhoun v. Louisiana Materials Co., 206 So.2d 147, 151-52 (4th Cir. 1968), writ denied, 251 La. 1050, 208 So.2d 324 (1968); Friede v. Myles Salt Co., 177 So. 105, 108 (Orl.La.App.1937).

The question of the running of legal interest in a redhibition action has been considered at least twice before by this Court. In Donavan v. Mooney, 5 La. 57 (1833), decided prior to the repeal of article 554 of the 1825 Code of Practice (see discussion, supra), it was held that on recission of the sale, the plaintiff (purchaser) was entitled to interest from the date of tender or delivery of the property which, presumably, in the Donavan case was the date of judicial demand. However, in the later case of Burnham v. Hart, 15 La.Ann. 517 (1860), this Court held that legal interest was due from the date of the sale, which was considered to be the time of default. (The decision was based on article 1932 of the Civil Code of 1825, a predecessor to C.C. 1938, which provided that interest was to be calculated on the sum due at the time of default.)

The latter decision might have been due to the belief at the time that a redhibitory action results in a “recission” of the sale, voiding the sale ab initio. See 4 Tul.L.Rev. 433, 434-35 (1929-30). There exists, however, a conflicting theory' — that the redhibi-tory action is actually one of “resolution” where the contract is enforced until the date of the resolution. See 22 La.B.J. 27, 29-30 (1974); 30 La.L.Rev. 508, 515 (1970). The enactment of the amendment to C.C. 2531 by La.Acts 1974, No. 673, specifically allowing a credit to the seller for the value of the use of the thing, bolsters the “resolution theory” of redhibitory actions. 49 Tul.L.Rev. 484, n. 7 (1975). Therefore, we conclude that the better approach is that found in Donavan v. Mooney, supra, where the court held that the purchaser, in order to be restored to the position he was in before the sale of the defective slave, should recover interest on the price from the date he tendered the slave to the seller (presumably in the petition).

Except for attorneys’ fees we find that plaintiffs’ claim was ascertainable on the date of formal demand for “cancellation” of the purchase by letter dated June 29, 1972 from the attorney for Percy Alexander to Burroughs Corporation when defendant was put in default, and hence interest should run from that date, rather than from date of judgment or from date of judicial demand. The amount of attorneys’ fees due was not ascertainable until awarded by the court, and interest, therefore, will run on that demand only from the date awarded.

Plaintiffs also pray for additional attorneys’ fees in the amount of $4000 for their services on appeal. We find an additional $2000 to be a reasonable figure.

For the reasons assigned, the judgment of the court of appeal is affirmed insofar as it affirmed the trial court’s resolution of the sale and awarded the return of the purchase price, certain expenses of the sale, and damages. The judgment is amended to award interest from June 29, 1972, instead of March 8,1977. That portion of the judgment denying plaintiffs recovery of the finance charge incurred in the purchase of the computer is reversed and the plaintiff is now awarded $5,100, with interest from June 29, 1972. Further, we affirm the award of attorneys’ fees and interest by the court of appeal, and award the additional amount of $2000 as attorneys’ fees to plaintiff, with 7% per annum interest from the date of this judgment; defendant is cast for all costs.

      . See, e. g., the following cases all of which granted a set off to a manufacturer for the buyer’s use of the thing: Weaver v. Fleetwood Homes of Mississippi, Inc., 327 So.2d 172 (3d Cir. 1976); Peoples Furniture & Gift v. Carson Hicks/Friedrichs Refrigeration, Inc., 326 So.2d 919 (3d Cir. 1976) writ granted, 329 So.2d 754 (1976), aff’d, 333 So.2d 320 (3d Cir. 1976); First National Bank of Ruson v. Miller, 329 So.2d 919 (2d Cir. 1976), writ denied, 333 So.2d 243 (1976); Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (2d Cir. 1975); Tichell v. Silmon, 304 So.2d 792 (2d Cir. 1974); Dunlap v. Chrysler Motors Corp., 299 So.2d 495 (4th Cir.) writ denied, 302 So.2d 38 (1974); Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (1st Cir. 1973); Gauche v. Ford Motor Company, 226 So.2d 198 (4th Cir. 1969) (on original hearing); Kiefer v. Bernie Dumas Buick Company, 210 So.2d 569 (4th Cir. 1968).
      In Boudreaux v. Mazda Motors of America, Inc., 347 So.2d 504 (4th Cir. 1977), the Fourth Circuit recognized that article 2545 “does not provide that such a [bad faith] seller should get any credit for use or fruits” yet still allowed a set off of a buyer’s finance charge against a manufacturer’s use of the purchase price.

      . Allowing the credit: Bergeron v. Mid-City Motors, Inc., 162 So.2d 835 (1st Cir. 1964), and cases cited in note 1, supra.

        Disallowing the credit: Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973) (defendant did not seek reimbursement for buyer’s use; implies that had defendant requested the credit he might have been entitled to it); Clark v. McBride Dodge, Inc., 289 So.2d 841 (4th Cir. 1974) (no evidence in the record on which to base a credit for use); de la Houssaye v. Star Chrysler, Inc., 284 So.2d 63 (4th Cir.), writ denied, 286 So.2d 662 (1973) (defendant did not seek reimbursement for buyer’s use; implies that had defendant prayed for the credit he might have been entitled to it); R. O. Roy & Company, Inc., v. A & W Trailer Sales, 277 So.2d 204 (2d Cir. 1973) (on original hearing); Brown v. Mid-City Motors, Inc., 248 So.2d 27 (1st Cir. 1971); Hebert v. Claude Y. Woolfolk Corp., 176 So.2d 814 (3d Cir. 1965); Goff v. Dewey Oliver, Inc., 137 So.2d 393 (3d Cir. 1962).

        No credit awarded, but no discussion of the issue: Falk v. Luke Motor Company, Inc., 237 La. 982, 112 So.2d 683 (1959); Reech v. Coco, 223 La. 346, 65 So.2d 790 (1953).

      . In the following cases, for example, it was reasonable to allow a use credit: (1) credit of $60 per month for the purchaser’s use of a mobile home, a reduced rental value due to the unpleasant living conditions caused by the defect, Weaver v. Fleetwood Homes of Mississippi, Inc., supra note 1; (2) $600 credit for use of an air conditioning unit for 3 summers which provided some, although not adequate, cooling, Peoples Fur. & G. v. Carson Hicks/Friedrichs Ref., Inc., supra note 1; (3) $1200 credit for 15,000 miles use of a pickup truck, Smith v. Max Thieme Chevrolet Company, Inc., supra note 1; (4) $2000 credit for 96,000 miles use of an automobile, Dunlap v. Chrysler Motors Corp., supra note 1; (5) $1680 credit on mobile home based upon 14,000 miles at $.12 per mile, rejecting $200 monthly rental value since “ . the credit for use of a defective vehicle should not be in the same amount as that for a non-defective vehicle.” Breaux v. Winnebago Industries, Inc., supra note 1, 282 So.2d at 769.

        But see First National Bank of Ruston v. Miller, supra note 1, where the court credited the seller with the fair rental value attributable to a mobile home without defects, rejecting the purchasers’ claim that the credit should be reduced since their enjoyment was seriously impaired by the defects.

      . In the only other redhibition case found where interest ran from the date of judgment rather than from the date of judicial demand, or some other date, Boudreaux v. Mazda Motors of America, Inc., supra note 1, the purchaser was not only in possession of the thing, but continued to use it (18,000 miles on the car from the time of suit until trial).

      . This is to be contrasted with an action in quantum meruit where the amount is not ascertainable until the date of judgment. See Sugar Field Oil Co., v. Carter, 214 La. 586, 38 So.2d 249 (1949); Brummett v. Hamel’s Dairy, Inc., 324 So.2d 502 (2d Cir. 1975); Custom Builders & Supply, Inc., v. Revels, 310 So.2d 862 (3d Cir. 1975); Pittman & Matheny v. Davidge, 189 So.2d 706 (1st Cir.), writ denied, 249 La. 768, 191 So.2d 143, 249 La. 771, 191 So.2d 144 (1966).

      . It might be argued that, since plaintiffs only prayed for interest from date of judicial demand, they should be so limited. See B. Segall Company, Inc., v. Trahan, 276 So.2d 340 (2d Cir. 1973), rev’d on other grounds, 290 So.2d 854 (1974). The appropriate response is the same as found in defendant’s argument in brief on the issue of whether a credit for the buyer’s use should be allowed absent a prayer for it. C.C.P. 862 provides that a final judgment shall grant the relief a party is entitled to, even if he has not demanded such relief in his pleadings.


author: SANDERS, Chief Justice.

text:
    Alford G. CLARK et al. v. HARRISON PROPERTY MANAGEMENT CO., INC., et al.
    No. 61157.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied June 15, 1978.
    Leo S. Roos, Roos & Roos, New Orleans, for plaintiffs-applicants.

      C. Ellis Henican, Henican, James & Cleveland, New Orleans, for defendants-respondents.
   SANDERS, Chief Justice.

In this case, we must determine the contractual obligations arising out of the following transactions:

Clark leased and occupied 507 Decatur Street, New Orleans. The lease contained an option to purchase which Clark exercised. Consequently, Clark entered into an agreement to purchase with “Harrison Property Management Co. Inc. by — W. H. Harrison, Pres.” Later Clark transferred his rights under the agreement to purchase to Bannister. Certain problems involving merchantable title to the property arose. This suit resulted.

Originally, Clark and Bannister sought specific performance or damages arising out of defendants’ failure to deliver title. However, plaintiffs now seek damages only. The lower courts rejected plaintiffs’ demands, and we granted writs. (La.App. 4th Cir. 1977); La., 353 So.2d 1042 (1978).

The pertinent provisions of the agreement to sell provide:

“The seller shall deliver to purchaser a merchantable title, and his inability to deliver such title within the time stipulated herein shall render this contract null and void, reserving unto purchaser the right to demand the return of the deposit from the holder thereof, and reserving unto agent the right to recover commission.
“In the event the seller fails to comply with this agreement for any other reason, within the time specified, the purchaser shall have the right either to demand the return of his deposit in full plus an equal amount to be paid as penalty by the seller; or the purchaser may demand specific performance, at his option.”

The necessary real estate and financial preparations for the sale proceeded without difficulty until the title examiners informed the lending institution that they could not approve the title to the property unless the following requirements were fulfilled:

“The succession of Mrs. Margaretha Gondolf, widow of Jacinto F. Baltar, must be opened and her heirs recognized and placed in possession. In the Succession of William W. Baltar, No. 198-961 of the docket of the Civil District Court, there is an allegation in a petition in the record that Mrs. Margaretha Gondolf Baltar died on July 4, 1932, and that her estate was administered in No. 12-781, Harrison County, Mississippi. If this is correct, ancillary proceedings will be necessary. “The transferors to the Harrison Property Management Co., Inc. must join in the sale by the corporation. This is necessary since the transfer to the corporation contained no reference to consideration paid, and for the additional reason that the charter of the corporation provides that it shall administer and manage the property of others, and that in connection therewith, it may hold title to said property but for administration and management purposes only. Regarding the above requirement we have some information that one of the said transferors is legally incapable of managing his own affairs, but this has not been confirmed and we do not know whether or not it is correct. However, if such is a fact, we must be advised and, accordingly, reserve the right to make additional requirements. “Fractional interests in the property are owned by Miss Katherine Loretta Harrison, Mrs. Shirley Harrison Hyde, and Richard Joseph Harrison, who inherited from the succession of their mother, Mrs. Katherine Cogan, deceased wife of Walter J. Harrison. It will also be necessary for them to join in the sale.”

The title opinion precipitated a barrage of written and verbal communications regarding the title defects which had to be cured. However, the contract provided that the need for bona fide curative work in connection with the title automatically extended the May 15 act of sale for thirty days. Therefore, June 14, 1972 became the date set for the passing of the act of sale under the agreement to sell.

The evidence reflects that the title examiners were correct about the need for curative work. The title examiner, M. L. Dres-ner, testified at trial that the Baltar succession precluded merchantability because “[i]n the succession of Jacinto F. Baltar, his widow Margaretha Gondolf Baltar was left only the usufruct of the property and the basis for that was that he said in his will that he was judicially separated in property from his wife.” (Tr. p. 212.) Evidence of the separation could not be found to verify this fact.

Five children were born of the Baltar union. At least one of the heirs, William W. Baltar, was known to be deceased and his interest had passed to his descendants. Thus the succession possibly involved as many as thirty descendants of Mrs. Mar-garetha Baltar, whose whereabouts were unknown. For obvious reasons, the seller could not deliver a merchantable title to the property at the act of sale.

Moreover, the title examiner testified clearly that he never changed his opinion about the necessity for the opening of the Baltar succession prior to the date of the act of sale, June 19, 1972, and that on that date the title was still not merchantable because of the Baltar succession. (Tr. p. 217.)

We, therefore, find that the Baltar succession presented an insurmountable obstacle for the seller to resolve before the date for the passing of the act of sale. Thus, a merchantable title could not be delivered by the seller, “within the time stipulated.”

Under the clear terms of the contract, which is the law between the parties, the seller was unable to deliver merchantable title within the time stipulated and the contract was rendered “null and void, reserving unto purchaser the right to demand the return of the deposit from the holder. Although the Court of Appeal recognized the right of return of the deposit in the body of the opinion, it merely affirmed the trial court judgment which did not order the return of the $2500 deposit. We now recognize that the Court of Appeal could not render judgment for the return of the deposit because the realtor, who held the deposit under the contract, was not a party to this litigation.

In light of the title defect which could not be corrected prior to the extended date of sale and which rendered the contract null and void, we pretermit treatment of other alleged causes for the contract’s nullity..

We hold, as did the Court of Appeal, that in view of the contractual provisions, the plaintiffs are not entitled to damages.

For the reasons assigned, the judgment of the Court of Appeal is affirmed, without prejudice to the right of plaintiffs to enforce the return of the deposit.

      . Harrison Property Management Co., Inc., William Harrison, personally, and as its president, Walter J. Harrison and Lydia Harrison Couterie Ryan, personally and as its directors, as well as, Shirley Harrison Hyde, Katherine Loretta Harrison, and Richard Joseph Harrison, who together owned one-sixth of the property at issue as heirs of their mother, Mrs. Walter J. Harrison, are named defendants. Upon the death of William Harrison his succession was substituted as a party defendant.

      . The original date for the passing of the act of sale was May 15, 1972. It was extended pursuant to the provisions of the contract until June 14, 1972. Then that extended date was mutually extended to June 19, 1972 for the convenience of and in order to secure the presence of Mr. William H. Harrison.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Michael BURGE.
    No. 61249.
    Supreme Court of Louisiana.
    May 22, 1978.
    Rehearing Denied July 3, 1978.

      A. J. Boudreaux, Staff Appeals Counsel, Indigent Defender Bd., 24th Judicial Dist., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Michael Cullen, Asst. Dist. Atty., Abbott J. Reeves, Research and Appeals, Asst. Dist. Atty., for plaintiff-ap-pellee.

       Denial of rehearing set aside, see 359 So.2d 619.

   CALOGERO, Justice.

Defendant was charged by bill of information with armed robbery in violation of R.S. 14:64. Following a trial by jury defendant was found guilty as charged and was sentenced to thirty-five years at hard labor without benefit of parole, probation or suspension of sentence. On appeal defendant relies upon four assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error defendant protests the trial court’s denial of his motion for a new trial. After reviewing defendant’s arguments we construe defendant’s allegations to be in effect directed to the trial court’s denial of his motion for a mistrial and for a new trial as these motions relate to the admission of testimony concerning the circumstances surrounding defendant’s arrest.

During defendant’s trial it was revealed through the testimony of a member of the Baton Rouge Sheriff’s office that when defendant was arrested he was carrying a gun and attempted to flee in an effort to prevent his arrest. Defendant contends that this testimony was irrelevant and prejudicial and thereby violated his right to a fair trial. We do not agree. The officer’s testimony was relevant as it described the facts which surrounded defendant’s arrest. It would have been unrealistic, and perhaps untrue, for the officer to have testified that on a given day and at a given time he made a simple uncomplicated arrest.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

In defendant’s second assignment of error he contends that the trial court erred in refusing to allow him to change his original plea of not guilty and not guilty by reason of insanity to a single plea of not guilty.

A similar request was made in State v. Clark, 305 So.2d 457 (La.1974) wherein this Court held that a defendant may “withdraw the dual plea and substitute the single plea of ‘not guilty’ at any time prior to the presentment of the indictment and defendant’s responsive plea to the jury.” In the present case, however, defendant did not make the request to change his dual plea until after the state and defense had completed their closing arguments to the jury. As such, defendant’s request was untimely made and therefore, properly refused by the trial court.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

In these assignments defendant alleges that the trial court erred in refusing to abstain from giving jury charges relative to insanity (assignment of error number three) and flight (assignment of error number four).

Relative to the charge of insanity defendant contends that the instruction effectively denied him due process of law and a fair trial as guaranteed him by the Louisiana Constitution in that the state’s burden of proof was thereby lessened. He argues that the tendering of a plea of not guilty by reason of insanity amounts to an alternative admission of criminal conduct, and that his having failed to assert the insanity defense by proof during the trial thereby effectively lessened the state’s burden of proving guilt beyond a reasonable doubt.

We find no merit in this contention. Irrespective of defendant’s failure to introduce evidence in support of the plea of insanity, in light of the extant dual plea (see assignment of error number two) the trial judge was required to instruct the jury on insanity at the time of the offense.

Relative to the charge on flight defendant admits that flight from the scene of the crime is relevant to indicate consciousness of guilt. He further contends, however, that the flight in question could give no such indication of guilt as it was not flight from the scene of the crime, it having occurred twelve days after the commission of the crime. Consequently, he argues that the charge on flight should not have been given the jury. We cannot say that the defendant is incorrect when he says that there is a negligible degree of relevance where the flight occurs from other than the scene of the crime and some twelve days post-crime when a person is confronted by an arresting officer. Nonetheless we can find no prejudice whatever from the charge which the trial judge in fact gave to this jury. It was as follows:

FLIGHT
The court charges you, gentlemen, that the flight of an accused, or escape, or attempt to escape, on the part of an accused, taken alone, does not raise a legal presumption of guilt. The fact of an accused having fled, or having actually escaped from custody, if proved, are merely facts in the case to be taken into consideration by the jury in connection with all the other facts in the case in determining the probabilities for or against the guilt of the accused. Flight, or an attempt to escape may be prompted by a sense of guilt, but not necessarily so. If you find that the accused fled, or attempted to escape, or did escape, it is for you to consider what was the motive of the flight, or the attempt to escape, or the escape.
These assignments lack merit.

Decree

For the foregoing reasons we hereby affirm defendant’s conviction and sentence.

AFFIRMED.

      . Assignments of error numbers five and six have neither been briefed nor argued by defendant and are therefore presumed abandoned. State v. Jones, 340 So.2d 563 (La.1976).


text:
    STATE of Louisiana ex rel. Michael BURGE v. Honorable Louis G. DESONIER, Jr., Judge, Section A, 24th Judicial District Court, Parish of Jefferson.
    No. 62648.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Michael Burge applying for writ of mandamus. Parish of Jefferson.

Application granted; except that the Court will appoint counsel to represent applicant on application for rehearing.

Previous action by this Court denying rehearing [see 359 So.2d 616] is set aside, having been improvident in light relator’s not having been represented by counsel, and in light of relator’s having timely sought a rehearing and appointment of counsel.


text:
    STATE of Louisiana v. Ronald NODINE.
    No. 62435.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Ronald Nodine applying for stay order pending preparation of application for supervisory and/or remedial writs. Parish of Jefferson.

Stay order granted: All proceedings in this matter stayed until Monday, June 12, 1978, 1:00 P. M. The district attorney is ordered to file a response.


text:
    Inez A. FUNDERBURK et al. v. MONTGOMERY ELEVATOR COMPANY et al.
    No. 62310.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Inez A. Funderburk, et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Granted.

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


text:
    Philip MONTELEPRE et al. v. Edwin W. EDWARDS et al.
    No. 62419.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Philip Montelepre, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Denied.


text:
    DOLESE CONCRETE COMPANY v. Nicholas TESSITORE, Jr.
    No. 62339.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Nicholas Tessitore, Jr. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 869.

Writ denied.


text:
    George HORNE, Individually and on behalf of his minor children and the Jefferson Parish School Board v. LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION et al.
    No. 62329.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: George Horne, Individually and on behalf of his minor children and the Jefferson Parish School Board Applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 1216.

Denied.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. James P. HOYT, Jr., et ux.
    No. 62324.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: State of Louisiana, Through the Department of Highways applying for certiorari, or writ of review, to the Court of Appeal, Third Court. Parish of Rapides. 357 So.2d 1189.

Writ denied.

DIXON and MARCUS, JJ., would grant on question of appraiser’s fees.


text:
    Michael X. ST. MARTIN, as Administrator of the Estate of the minor child, Steven Paul St. Martin v. MARYLAND CASUALTY COMPANY and Marcel J. Rayne.
    No. 62323.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Maryland Casualty Co. and Marcel J. Rayne applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 357 So.2d 885.

Writ denied.

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


text:
    Dorothy Simkin STOLIER v. Bert STOLIER.
    No. 62314.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Bert W. Stolier, applying for cer-tiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1334.

Denied.

SUMMERS, J., would grant the writ.


text:
    Linda Stansell MORRISON et al. v. CLEARVIEW MEDICAL PLAZA et al.
    No. 62301.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Clearview Medical Plaza, William J. Hogan, L. Dow Oliver and Ralph D. Dwyer, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 357 So.2d 1386.

Writ denied.


text:
    Rebecca Lynn P. FONTENOT, Individually and for and on behalf of her minor daughter, Lisa Brook Pitre v. NEW YORK LIFE INSURANCE COMPANY.
    No. 62296.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Rebecca Lynn P. Fontenot, Individually and for and on behalf of her minor daughter, Lisa Brook Pitre, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline. 357 So.2d 1185.

Denied.

TATE J., would grant writ.


text:
    Clyde DARBONNE v. ALLSTATE INSURANCE CO. et al.
    No. 62219.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Victoria Lynn Savoie Darbonne, Individually and as natural tutrix of the minor child, Anthony Paul Darbonne and as administratrix of estate of Clyde Darbonne, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 357 So.2d 1269.

Writ denied.

SUMMERS, TATE and CALOGERO, JJ., would grant the writ.


text:
    Valco CRUMP v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and National Gypsum Co.
    No. 62299.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Valco Crump, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1374.

Writ granted.

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


text:
    DOLESE CONCRETE COMPANY v. Nicholas TESSITORE, Jr.
    No. 62311.
    Supreme Court of Louisiana.
    June 9, 1978.
   In re: Dolese Concrete Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 869.

Writ denied.

SUMMERS, J., dissents from the denial on basis of assignment No. 2.


text:
    STATE of Louisiana v. Ronald NODINE.
    No. 62441.
    Supreme Court of Louisiana.
    June 12, 1978.
   In re: Ronald Nodine applying for supervisory writs and a stay order. Jefferson Parish.

Writ granted. Hearing ordered to establish the “authority of the officer and the identity of the person to be taken” as required by La.R.S. 15:574.14, subd. A(3).


text:
    STATE of Louisiana v. Nick KARNO.
    No. 62462.
    Supreme Court of Louisiana.
    June 15, 1978.
   In re: Israel M. Augustine, Jr., applying for recusal. Parish of Orleans.

Application denied. The applicant judge has already recused himself. The matter is remanded to the Criminal District Court for that court en banc to determine whether the allotment is governed by the provisions of Rule 8, Sec. 2, Rules of the Criminal District Court, Parish of Orleans, and to make the appropriate allotment.


text:
    STATE of Louisiana v. Rodney O. EAKER.
    No. 62472.
    Supreme Court of Louisiana.
    June 15, 1978.
   In re: Rodney O. Eaker, applying for writs of review. Parish of Ouachita, and stay of proceedings.

Denied.


text:
    STATE of Louisiana v. Tammy W. SMITH and Faith Willis.
    No. 62421.
    Supreme Court of Louisiana.
    June 15, 1978.
   In re: Tammy Smith & Faith Willis applying for writ of certiorari. Parish of East Baton Rouge.

Writ denied.

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


text:
    STATE of Louisiana v. Johnny LAWRENCE.
    No. 62450.
    Supreme Court of Louisiana.
    June 15, 1978.
   In re: Johnny Lawrence, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Concordia.

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

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


text:
    STATE of Louisiana v. Joe A. TERRELL.
    No. 62458.
    Supreme Court of Louisiana.
    June 15, 1978.
   In re: Joe A. Terrell applying for Writs of Review, Mandamus and certiorari. Parish of East Baton Rouge.

Writ denied.


author: TATE, J.,

text:
    STATE of Louisiana v. Kevin DOUGHERTY.
    No. 61094.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Kevin Dougherty applying for writs of mandamus and prohibition. Parish of East Baton Rouge.

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

TATE, J.,

concurs. I agree with the Monroe Court that the affidavit seems to indicate staleness. However, the issue may be reviewed on appeal from a conviction either after trial or upon a plea of guilty.

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


text:
    Howard E. TIMON v. Cynthia Ann TIMON.
    No. 62199.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Cynthia Ann Timon, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo.

Denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Percy JOHNSON v. Hon. Charles R. WARD, Judge, Section “A”, Criminal District Court, Parish of Orleans.
    No. 62201.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Percy Johnson applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied. No particularized need shown. See trial Court’s return, which Clerk of this Court is to forward to relator.


text:
    STATE of Louisiana v. Vance BRADY.
    No. 62306.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: State of Louisiana, applying for writs of certiorari, mandamus and prohibition. Parish of Orleans.

Denied.

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


text:
    STATE of Louisiana ex rel. Jimmie L. PUCKETT v. Judge Jerome WINSBERG, Criminal District Court, Parish of Orleans.
    No. 62333.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Jimmie L. Puckett applying for writ of mandamus. Parish of Orleans.

Denied. Applicant must first seek relief in the trial court.


text:
    Charlie SIAS, Jr. v. GULF TUNG CORP., Rafe Silverstein, Jr. and Associated Pipeline Contractors, Inc.
    No. 62336.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Associated Pipeline Contractors, Inc. and The Employers’ Liability Assurance Corp., Ltd. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany.

Writ denied.


text:
    Bernard R. ACOSTA v. George R. CARY, Jr., M. D., Employees Insurance of Wausau, and Hartford Fire Insurance Co.
    No. 62337.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Bernard R. Acosta applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1345.

Denied.


text:
    STATE of Louisiana v. Cary ANDERSON.
    No. 62340.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Cary Anderson applying for supervisory and remedial writs. Parish of East Baton Rouge.

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

DIXON, J., to grant the writ.


text:
    STATE of Louisiana v. Joe GUTIERREZ.
    No. 62341.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Joe Gutierrez applying for supervisory writs. Parish of Rapides.

Writ denied.


text:
    Herb BOXILL v. C. E. METRAILER et al.
    No. 62342.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: C. E. Metrailer applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.


text:
    Nancy J. SACHNOWITZ, as natural tutrix of Nancy Katherine Nelson, Annie Schreiner Nelson and Strauder Goff Nelson, III v. Carolyn Moffitt Henderson NELSON and Fidelity National Bank of Baton Rouge.
    No. 62343.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Fidelity National Bank of Baton Rouge, Trustee applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 357 So.2d 894.

Denied.

DENNIS, J., would grant the writ.


text:
    Kenneth R. RIDDLE et al. v. Robert MENARD et al.
    No. 62347.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Kenneth R. Riddle and Anna Soi-leau Riddle applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Landry. 355 So.2d 1350.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Bobby D. GLOVER.
    No. 62348.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Bobby D. Glover applying for writ of mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. John D. BROWN.
    No. 62349.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: John D. Brown applying for writ of mandamus. Parish of Orleans.

Writ denied. Appeal is pending. Trial transcript is available to defendant’s counsel.


text:
    P.A.C.T. BARGE CO., et al. v. BAYOU CONSTRUCTION OF HOUMA, INC.
    No. 62354.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: P.A.C.T. Barge Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 357 So.2d 889.

Denied.


text:
    Olen K. VAUGHN and William Phillips v. AMERICAN SOUTHERN INSURANCE CO. et al.
    No. 62356.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Olen K. Vaughn and William Phillips applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaquemines.

Denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana, Through the DEPT. OF HIGHWAYS v. Eula B. WILLARD et al.
    No. 62357.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Eula B. Willard, et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Ascension.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    Charlie SIAS, Jr. v. GULF TUNG CORP., Rafe Silverstein, Jr. and Associated Pipeline Contractors, Inc.
    No. 62358.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Charlie Sias, Jr. applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany.

Writ denied.


text:
    WOMETCO COMMUNICATIONS, INC. v. Joseph L. LUTS et al.
    No. 62360.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Wometco Communications, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 357 So.2d 877.

Writ denied.


text:
    Eldon A. PALMER v. Cecil M. KEENY, Amon W. Kersteter, George Ventura, Harold Herbert, I. B. Alley, Jr. and Employers Ins. of Wausa.
    No. 62361.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Cecil M. Keeny applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 357 So.2d 1339.

Denied.


text:
    STATE of Louisiana v. Tony ADAMSON.
    No. 62437.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Tony Adamson, applying for writs of certiorari, prohibition, mandamus, and habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Frank BENSCOTER.
    No. 62422.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Frank Benscoter applying for supervisory writs. Parish of Vermilion.

Writ denied. On the showing made the petitioner is not entitled to the relief sought.


text:
    W. E. PELTIER, Jr. v. DEPARTMENT OF HIGHWAYS of the State of Louisiana and Dixie Carriers, Inc. Antoine LUKE v. DEPT. OF HIGHWAYS of the State of Louisiana and Dixie Carriers, Inc.
    No. 62377.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: W. Peltier, Jr. and Antoine Luke applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 357 So.2d 897.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    STATE of Louisiana v. Wilbert CLEVELAND.
    No. 62370.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Wilbert Cleveland applying for supervisory writs. East Baton Rouge Parish.

Denied.


text:
    J. W. QUEEN, Individually and for the Use and Benefit of his minor son, R. Queen v. David R. LAMANA et al.
    No. 62368.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: J. W. Queen applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Denied.


text:
    Raymond B. GAUTREAU v. MODERN FINANCE CO. OF GONZALES, INC.
    No. 62367.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Modern Finance Company of Gonzales, Inc. applying to the Court of Appeal, First Circuit. Parish of Ascension. 358 So.2d 980.

Writ denied.


text:
    STATE of Louisiana v. Irene WILLIAMS.
    No. 62364.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Irene Williams applying for remedial writs. East Baton Rouge Parish.

Writ denied.


text:
    Inez A. FUNDERBURK et al. v. MONTGOMERY ELEVATOR COMPANY et al.
    No. 62375.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Employers Commercial Union Ins. Co. and Montgomery Elevator Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ granted.

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


text:
    STATE of Louisiana ex rel. Joseph BROWN v. CRIMINAL DISTRICT COURT, SECTION “B” PARISH OF ORLEANS.
    No. 62371.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Joseph Brown applying for Writ of Mandamus. Orleans Parish.

Writ granted. Clerk is ordered to transfer a copy of this application to the trial court for action.


text:
    STATE of Louisiana v. Bernard POMES, III.
    No. 62363.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Bernard Pomes, III applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson.

Granted. The state shall disclose the identity and location of the informer or produce him at trial.

SANDERS, C. J., and SUMMERS, J., dissent.


text:
    CITY OF BATON ROUGE v. Keith DEES.
    No. 62355.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Keith Dees applying for writs of certiorari, mandamus, prohibition and habe-as corpus. East Baton Rouge Parish.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable William Brown, Judge of the City Court, for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 30th day of June, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this Court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    MARTIN LEBRETON INSURANCE AGENCY v. Mrs. Sara Phillips, wife of and Lewis Ray LAMASTUS, Metro, Inc., and Lucy Reid Rausch, Clerk of Court.
    No. 62351.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Martin Lebreton Insurance Agency applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 357 So.2d 883.

Granted.

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


text:
    STATE of Louisiana v. Ronald Wayne SMITH (a.k.a. Steve Gillam).
    No. 62292.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Ronald Wayne Smith, applying for remedial writs. Parish of Orleans.

Writ granted. Evidentiary hearing ordered.


text:
    STATE of Louisiana ex rel. Robert L. ADAMS v. Johnny PARKERSON, District Attorney, 4th Judicial District, Parish of Ouachita.
    No. 62287.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Robert L. Adams applying for writ of habeas corpus. Parish of Ouachita.

Writ granted. Application transferred to district court for action.


text:
    STATE of Louisiana v. Willman E. GUILLORY, Jr.
    No. 61944.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Willman E. Guillory, Jr. applying for Remedial Writs. Calcasieu Parish.

Writ Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Arthur J. Planchard, Judge of the 14th Judicial District, Court for the Parish of Calca-sieu, to transmit to the Supreme Court of Louisiana, record is in our possession, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this Court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Willman E. GUILLORY, Jr.
    No. 61943.
    Supreme Court of Louisiana.
    June 16, 1978.
   In re: Willman E. Guillory, Jr. applying for remedial writs. Calcasieu Parish.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Arthur J. Planchard, Judge of the 14th Judicial District, Court for the Parish of Calca-sieu, to transmit to the Supreme Court of Louisiana, record is in our possession, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


author: BLANCHE, Judge.

text:
    Gordon WILKINSON v. Charles VICCINELLI et al.
    No. 11945.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    William H. Cooper, Jr., Baton Rouge, of counsel for plaintiff-appellant Gordon Wilkinson.
    Arthur H. Andrews, Baton Rouge, of counsel for defendant-appellee Charles Vic-cinelli.
    Daniel R. Atkinson, Baton Rouge, of counsel for defendant-appellee Stanley A. Ponson.
    L. Michael Cooper, Baton Rouge, of counsel for defendant-appellee Saia Elec. Co., Inc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Gordon Wilkinson, is appealing the granting of a motion for summary judgment by the trial court which dismissed his suit based on the “officer-executive” tort theory, against defendants-ap-pellees, Charles Viceinelli, Lawrence Roppo-lo and Bituminous Casualty Company.

Neither written nor oral reasons were given by the trial judge, but the judgment has the obvious effect of holding that Act 147 of 1976, which precludes “officer-executive” suits, was retrospective in effect. The Act was approved by the Governor on July 16, 1976, and published in the Official Journal of the state on July 30, 1976, becoming effective October 1, 1976.

Plaintiff alleges in his petition that he suffered an injury on June 16, 1975, and claims that his injuries were caused by the negligence of the supervisory personnel of his employer. He names these supervisors along with their insurer as defendants.

It is a general rule that all legislative acts are prospective in effect, absent an explicit expression in the act that it is (1) retroactive, (2) remedial in purpose or (3) involves procedural matters. None of these are applicable to Act 147 of 1976.

The identical issue was raised in Green v. Liberty Mutual Insurance Company, 352 So.2d 366 (La.App. 4th Cir. 1977); writs denied, 354 So.2d 210 (La.1978). Our brethren of the Fourth Circuit found that Act 147 of 1976 was not retrospective in effect for reasons with which we concur.

Accordingly, we reverse and set aside the judgment of the trial court and render judgment herein in favor of plaintiff, denying the motion for summary judgment. This case is remanded to the trial court for trial on the merits. The costs of this appeal are to be paid by defendants-appellees.

REVERSED AND REMANDED.


text:
    Jasper K. WRIGHT, Jr., Testamentary Executor of the Succession of Jasper K. Wright v. DEPARTMENT OF HIGHWAYS of the State of Louisiana.
    No. 11949.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    See also, La., 342 So.2d 233.
    Robert B. Butler, III, Houma, for plaintiff and appellee.
    Charles Wm. Roberts, Baton Rouge, for defendant and appellant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Defendant, Department of Highways, has appealed the judgment of the trial court which found it in contempt of court for violating an injunction, awarded $500 damages to the plaintiff and $22 in court costs. Plaintiff, Jasper K. Wright, Jr., answered the appeal and asked that the damages be increased to $5,000, that the amended judgment be affirmed and that the Department of Highways be made to pay the legal costs in the trial court and in this appeal.

The Department started to erect an aerial bridge over Concord Street in Houma, Louisiana. Plaintiff, whose ancestor in title had granted a servitude for Concord Street, filed a petition to be maintained in possession of the property and to enjoin the Department from disturbance of his possession by removing the bridge. The Department took the position that since the servitude for the street had been granted it had the right to build an overhead bridge in the air space above the ground. The trial court agreed with the Department and denied the injunction. The matter was appealed de-volutively to this Court which agreed with the plaintiff and rendered the following judgment:

“ * * * [T]here is judgment for the plaintiff enjoining the defendant from the disturbance of plaintiff’s possession, such injunction to remain in effect until such time as the defendant institutes expropriation proceedings for acquisition of the additional servitude necessary for the proposed uses. * * * ” (Wright v. Department of Highways of the State of Louisiana, 342 So.2d 230, 232 [La.App. 1st Cir. 1976], writ denied, 343 So.2d 1075 [La.1977]

After the Supreme Court denied writs, plaintiff filed a rule to show cause why the Department should not be held in contempt for violating the injunction and asked for $50,000 in damages up to the date of filing the rule, plus $1,000 per day for each day which the bridge remained above Concord Street.

The judgment rendered by the trial court on the rule to show cause is before us on appeal, and we consider whether the Department was in constructive contempt of our judgment.

LSA-C.C.P. art. 2251 provides:

“A judgment can be executed only by a trial court.
“A party seeking to execute a judgment of an appellate court must first file a certified copy with the clerk of the trial court. This filing may be made without prior notice to the adverse party."

Our judgment was not filed in the district court until May 6,1977, more than a month after our decision became final on April 1, 1977. Therefore, there could not have been any semblance of an injunction in effect prior to that time because the judgment of the trial court, which had been devolutively appealed to this court, denied the injunction and our judgment had not been made executory. Two weeks and three days later, on May 23,1977, our judgment was complied with when the Department filed a supplemental petition taking the property it was ordered to take by our judgment. Thus, it may be said that although our judgment became final on April 1, 1977, it was not made executory in the trial court until May 6, 1977, and compliance by the Department with the same on May 23, 1977, was reasonable in our view.

The Department also argues that the judgment does not comply with LSA-C.C.P. art. 3605, which provides, in pertinent part, as follows:

“An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. * * ”

We agree. Nowhere in the judgment does there appear a description in reasonable detail of those acts which are to be enjoined. A court order granting a final injunction “shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained.” LSA-C.C.P. art. 3605. Disobedience of a preliminary or final injunction is punishable as a contempt of court under the provisions of LSA-C.C.P. art. 3611. The object and purpose of a contempt proceeding is to vindicate the authority and dignity of the court;' accordingly any disobedience of its orders should be willful. LSA-C.C.P. art. 224.

Applying the foregoing rules to the case at hand, we find that not only did the court order lack specificity but there is no showing of willful or contumacious behavior to disobey it.

For the above and foregoing reasons, the judgment of the district court is reversed, and judgment is rendered in favor of the defendant, Department of Highways, dismissing the rule. The plaintiff is to pay all costs of court.

REVERSED AND RENDERED.


author: CHIASSON, Judge.

text:
    Benton J. GUIDRY, as Administrator of the Estate of his minor son, David W. Guidry v. AETNA CASUALTY AND SURETY COMPANY.
    No. 11863.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Rehearing Denied June 12, 1978.
    Howard P. Elliott, Jr., Wade N. Kelly, Baton Rouge, of counsel for plaintiff-appellant Benton J. Guidry, as administrator of the estate of his minor son, David W. Gui-dry.
    William A. Norfolk, Baton Rouge, of counsel for defendant-appellee Aetna Cas. and Surety Co.

      Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

David W. Guidry, minor son of plaintiff, Benton J. Guidry, lost the sight in his left eye as a result of an accident which occurred during the course and scope of his employment with Charles Dickey, d/b/a Charlies Po-Boys. Plaintiff filed suit in tort directly against Dickey’s liability insurer, the defendant, Aetna Casualty and Surety Company, alleging that his son was injured as a result of a sharp and pointed knife being placed outwards on a shelf at eye-level by Charles Dickey. Aetna filed an exception of no cause of action on the basis that plaintiff’s exclusive remedy was in workmen’s compensation. The exception was sustained by the trial court and plaintiff filed this appeal. We affirm.

Plaintiff sets forth the following errors:

“1. The trial court erred in dismissing plaintiff’s suit on a peremptory exception when plaintiff’s petition stated a cause of action under the very language of a proviso to the immunity granted by LSA-R.S. 23:1032.
“2. The trial court erred in dismissing plaintiff’s suit by allowing the insurer of the tortfeasor to assert the immunity granted by LSA-R.S. 23:1032 when this immunity was granted only to the employer under the language of the statute, is personal to the employer, and should not inure to the benefit of the insurer.
“3. The trial court erred in finding that the immunity granted by LSA-R.S. 23:1032 was constitutional when no greater workmen’s compensation benefits were given in exchange for enlarging the scope of tort immunity.”

Plaintiff first contends that his petition sets forth a cause of action because it states that the act of Charles Dickey in placing the knife outwards on a shelf at eye-level was intentional, and that under the provisions of La.R.S. 23:1032 an employer is liable for the intentional injury of his employees.

Plaintiff’s petition, in part, recites:

“On or about May 12, 1977, David W. Guidry was working as a cook at Charlies Po-Boys, standing at a counter preparing food.
“As petitioner’s minor was working, Charles Dickey picked up a butcher knife from the shelf on which knives were kept to sharpen it, and then placed the knife on a bread rack, with the blade extended outward over the edge of the shelf of the bread rack, and immediately to the right of David Guidry.
“As David Guidry was working, he turned to his right and was stabbed in the left eye by the blade of the knife, totally blinding that eye.
“The proximate cause of David Guidry’s injury was the act of Charles Dickey in the following respects:
a) In deliberately placing an extremely sharp knife at eye level, directly beside petitioner’s minor, and in deliberately exposing the minor to the risk of severe and permanent injury.
b) In acting beyond the ‘normal’ course and scope of his employment as manager and owner of Charlies Po-Boys in sharpening a knife and placing it in what he knew to be a highly dangerous position, and which he knew would expose petitioner’s son to a hazard of severe injury.”

To constitute the requisite intent to result in civil liability, the defendant must have entertained a desire to bring about the result which followed and he should have believed that the result was substantially certain to follow. See: Monk v. Veillon, 312 So.2d 377 (La.App. 3rd Cir. 1975); Prosser, Law of Torts, (West, 1971) pp. 31-32. Although the statute does not affect an employer’s tort liability for his intentional acts, plaintiff’s petition fails to state a cause of action for the reason that it does not allege that the acts of Charles Dickey were done with the requisite intent to cause injury to plaintiff.

With respect to the second assignment of errors plaintiff contends that under the holding of Edwards v. Royal Indemnity Co., 182 La. 171, 161 So. 191 (1935), the employer’s immunity from suit for his negligent acts under La.R.S. 23:1032 is personal to the employer and, as such, is unavailable as a defense to the employer’s liability insurer where the insurer has been sued pursuant to La.R.S. 22:655, the Louisiana direct action statute.

La.R.S. 23:1032, as amended by Act No. 147, § 1 of 1976, currently provides:

“The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
“The immunity from civil liability provided by this Section shall not extend to: (1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and (2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

In Edwards v. Royal Indemnity Co., supra, the Supreme Court held that the husband’s immunity from suit by his wife was personal to the husband and could not be asserted by his insurer. As examples of defenses which were considered to be purely personal ones, the court cited the following: minority, interdiction, coverture, or that it is contrary to the articles of the Civil Code for a minor to sue his father for damages, or a wife to sue her husband in tort. In conclusion the court stated:

“It is, therefore, our opinion that the Legislature intended to give the insurer the right to plead defenses which it could urge against the insured, but not defenses which are purely personal between the insured and the claimant and in no way growing out of, or connected with, the accident or policy.”

Subsequently, in the case of Dandridge v. Fidelity & Casualty Co., 192 So. 887 (La.App. 2nd Cir. 1939), as in the instant case, the issue arose as to whether, in light of the Edwards decision, the employer’s immunity from tort actions against him by an injured employee was a defense which was also personal to the employer and unavailable as a defense to the employer’s liability insurer. The court held that the defense was non-personal and, therefore, that it did inure to the benefit of the liability insurer. In support of its conclusion the court quoted the following language from Ruiz v. Clancy, 182 La. 935, 162 So. 734 (1935):

“The decision in Edwards v. Royal Indemnity Co. merely recognizes a distinction between a case where there is no cause of action against the insured, and hence no cause of action against the insurer, and a case where there is no right of action against the insured because of a relative incapacity of the injured party to sue the insured, or a relative immunity of the insured against being sued by the injured party, . . . ”

Continuing, the court in Dandridge stated:

“In the case at bar plaintiff’s claim against the United Gas Company is not well founded in law, for the reason the law provides that her sole and exclusive right is to claim compensation. There is no relative incapacity of the plaintiff to sue the insured, United Gas Company, and there is no relative immunity of the insured against being sued by plaintiff. The law only defines the kind of suit she may bring against the insured, the same as it defines the kind of action that can be brought under any other given state of facts.
“In Act No. 55 of 1930, the insurer and the insured are referred to as being liable in solido if the insured becomes liable for a claim for damages, but, in such case, the insurer is like the principal debtor, and if the claim against the insured is not well founded in law, the insurer is not liable. ...”

We are in accord with the interpretation of Edwards as expressed in the Ruiz and Dandridge cases. The examples given by the court in Edwards, as well as in the instances of the doctrines of charitable immunity and governmental immunity, when those doctrines were viable, are examples of instances wherein a procedural bar is erected against the assertion of a cause of action by certain parties against certain other parties. These personal defenses do not eliminate the underlying cause of action.

In the instant case the underlying cause of action is the employee’s action for his injuries. Under the provisions of La.R.S. 23:1032, his cause of action in tort as against his employer is eliminated. As stated in Dandridge, supra, the law only defines the kind of action that can be brought against the insured. The statute does not erect any procedural bar to a suit by the employee against his employer, but it does limit the employee’s cause of action solely to one for compensation. Since a tort claim against his employer would not be well founded in law, plaintiff’s tort claim against his employer’s liability insurer is likewise not well founded in law.

For these reasons we hold that the employer’s defense of immunity from tort suit is not a personal one under the provisions of La.R.S. 23:1032 and therefore it is available as a defense to his liability insurer.

Plaintiff’s third and last argument concerns the constitutionality of La.R.S. 23:1032. It is contended that the statute, by reason of the 1976 amendment, unconstitutionally denies him an adequate remedy by due process of law for the reason that while the amendment expands the immunity from suit to executive officers, co-employees, directors and stockholders, in addition to those previously immune, it does not grant the employee anything in return for this deprivation.

Since plaintiff’s action is based upon the alleged negligence of his employer, extension of the immunity to executive officers, etc., has no affect on the adequacy of plaintiff’s remedy as against his employer’s liability insurer. Further, the exclusiveness of an employee’s remedy as against his employer has previously been held to be a constitutionally adequate remedy. Day v. Louisiana Central Lumber Co., 144 La. 820, 81 So. 328 (1919). Plaintiff’s third contention is therefore without merit.

For the reasons set forth herein we hold that the judgment of the trial court in favor of the defendant, Aetna Casualty and Surety Company, and against the plaintiff, Benton J. Guidry, sustaining the defendant’s exception of no cause of action is correct.

Costs are assessed against the plaintiff-appellant, Benton J. Guidry.

AFFIRMED.


text:
    Randall C. HOLLIDAY v. Dr. Robert PEDEN, Our Lady of the Lake Hospital, et al.
    No. 11888.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.

      Gerard E. Kiefer, Baton Rouge, of counsel, for plaintiff-appellant Randall C. Holli-day.
    E. Kenneth Barnette, Baton Rouge, of counsel, for defendant-appellee Dr. Robert Peden.
    Roger M. Fritchie, Baton Rouge, of counsel, for defendant-appellee Our Lady of the Lake Hospital.
    Henry B. Alsobrook, Jr., New Orleans, of counsel, for defendant-appellee Ethicon, Inc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is an action in tort for personal injuries, medical expenses and lost wages by plaintiff, Mr. Randall C. Holliday, against the defendants, Dr. Robert Peden, the physician who performed a tonsillectomy operation upon plaintiff, Our Lady of the Lake Hospital, the place where the operation was performed, and Ethicon, Inc., the manufacturer of the surgical needle.

After removal of plaintiff’s tonsils and while Dr. Peden was suturing the incisions, the needle broke, leaving more than one half of it lodged in plaintiff’s throat. Attempts to retrieve the broken part of the needle by Dr. Peden were to no avail. Following a normal recovery from the operation, plaintiff developed pain and this law suit followed.

The trial court held in favor of all defendants and dismissed plaintiff’s suit. Plaintiff has taken this appeal; the defendants have not answered nor have they appealed.

Plaintiff contends the trial court erred:

1. In failing to find the hospital negligent because none of the surgical team inspected the needle prior to its use by Dr. Peden;
2. In finding the needle properly manufactured in light of the conflicting testimony of the experts;
3. In finding the doctor was not negligent in applying too much stress on the suturing needle to cause it to break;
4. In failing to apply res ipsa loquitur.

In considering plaintiff’s fourth assignment of error we find that the trial judge was in error in holding that the doctrine of res ipsa loquitur is inapplicable under the circumstances of this case.

The evidence establishes that prior to his tonsillectomy operation and except for the fact that his tonsils needed to be removed, Mr. Holliday was a healthy man who rarely had throat infections. The evidence shows that plaintiff went to the hospital to have his tonsils removed by Dr. Peden, that he was placed under anesthesia during which time his tonsils were removed, and that upon awakening he was informed that a portion of the suturing needle broke off during the operation and was lodged in his throat, Dr. Peden having failed at attempts to retrieve it. Mr. Holliday presently lives with a constant sore throat that varies in severity.

This case does not present the ordinary situation wherein the law will not assist an innocent plaintiff at the expense of an innocent defendant. Here, we deal with a case where an unconscious or helpless patient suffers an admitted mishap which was untoward and unrelated to the scope of the surgery, akin to cases where foreign objects are left in the body of the patient. Those who are entrusted with the care of such a patient owe to him a duty to care as to medical treatment and to the furnishing of defect free instruments, in the. absence of which they can be called upon to establish their nonculpability, or else risk liability for the injuries suffered.

Plaintiff established that the suturing needle was broken as a result of either of three causes, i. e, the negligent handling of the needle by hospital personnel, the defective manufacture of the needle, or the application of too much stress on the needle by the surgeon. It was further established that for the needle to break in the manner that it did, a breach of a standard of care had to occur, thus a showing was made that except for the negligence of one of the defendants the needle would not have broken.

“Res ipsa loquitur is a rule of circumstantial evidence. Its applicability is normally determined at the conclusion of the trial. The rule applies when the facts shown suggest the negligence of the defendant as the most plausible explanation of the injury. .
“Neither does the joinder of multiple defendants bar res ipsa loquitur. . . . ”
McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973).

The doctrine has also been expanded in other jurisdictions to embrace cases where the negligent cause was not the only or most probable theory in the case, but where the alternate theories of liability accounted for the only possible causes of injury. See: Anderson v. Somberg, 67 N.J. 291, 338 A.2d 1 (1975).

Once it is determined that the doctrine is applicable the burden of proof to show an absence of negligence is shifted to the defendants. Day v. National U. S. Radiator Corporation, 241 La. 288, 128 So.2d 660 (1961).

We find that Our Lady of the Lake Hospital has adequately discharged its burden of proof and has overcome the inference thus created.

The evidence shows that the hospital relies totally upon the manufacturer to supply defect free suturing needles. It was further shown that the needles come to the hospital in individually sealed packages which are not opened by any members of the hospital’s surgical team until they are ready for use by the physician and that the hospital keeps a card file on which it is noted what preparations, instruments and supplies are requested for each type of operation. Whatever type and grade needle requested by the doctor is laid out for him. Once a needle has been used it is disposed of. Finally, it was established that the hospital has used this procedure for many years without requiring an inspection of the suturing needles by members of its surgical teams prior to their use, without incident.

We, therefore, hold that the hospital was not guilty of negligence in handling the suturing needle prior to its use by Dr. Pe-den.

We find that the defendant manufacturer, Ethicon, Inc., has also exonerated itself. Ethicon’s expert witness, Dr. Allen Weinstein, Professor of Mechanical Engineering at Tulane University, testified that tests performed by him on the salvaged portion of the needle led him to the opinion that the needle in question was of a 420 grade stainless steel. He also stated that the duffel fracture across the end of the needle meant that the needle was bent before it broke and that the fracture of the needle was the result of too heavy a stress. Other evidence shows that the needle was properly packaged and labeled, and that this type of needle is suitable for suturing in tonsillectomy operations.

Finding as we do that suture needles do not ordinarily break in the throats of tonsillectomy patients in the absence of negligence the burden of proof is shifted to the defendant, Dr. Peden, to show that he was free from negligence in the suturing of Mr. Holliday.

The evidence reveals that Mr. Holliday had a chronic history of tonsillitis prior to his tonsillectomy, that the tonsil fascia toughens due to layering of scar tissue with each episode of tonsillitis in patients with such a history, and that Dr. Peden was aware that he would encounter toughened tissue in the suturing of Mr. Holliday. Additionally, as testified to by Dr. Weinstein, the needle was bent prior to breaking as a result of too heavy a stress.

The only evidence tending to rebut the inference thus created by application of the doctrine was the testimony of Dr. Lawson G. Cox who was called by Dr. Peden as an expert witness specializing in ear, nose and throat practice. His testimony was to the effect that Dr. Peden did not violate the standard of care during surgery and that Dr. Peden’s choice of needle and suture were up to standard. He further testified that he has experienced needles breaking during surgery and that he could not explain how or why they broke.

We do not think the doctor has sufficiently overcome the inference. In the first place, Dr. Cox was not present during the operation on Mr. Holliday to enable him to give a factual opinion as to whether Dr. Peden adhered to the standard of care or not. Secondly, Dr. Cox recognized the fact that patients with a history of chronic tonsillitis develop toughened tissue of the tonsil fascia that should be anticipated by the surgeon.

In view of the evidence that the suturing needle was bent prior to breaking because of excessive stress, and that Dr. Peden was aware of Mr. Holliday’s prior history of chronic tonsillitis, we find that Dr. Peden has not exonerated himself from the inference of negligence.

With respect to damages, the evidence establishes that the needle still remains lodged in Mr. Holliday’s throat encapsulated with scar tissue. Mr. Holliday testified that he experiences a continuous stinging pain in his throat in the area where the needle is embedded and that he has had at least two or three severe flareups of sore throat since the time of the operation. There is no evidence of record which would support an award for the cost of surgery for removal of the needle nor is there any evidence to support an award for lost wages. Therefore, for past, present and future, mental and physical pain and suffering, we will award plaintiff the sum of $5,000.00 in compensation for his injuries.

For the foregoing reasons the judgment of the trial court with respect to the defendants, Our Lady of the Lake Hospital and Ethicon, Inc., is affirmed, and the judgment with respect to the defendant, Dr. Peden, is reversed.

It is hereby ordered, adjudged and decreed that judgment be rendered herein in favor of the plaintiff, Mr. Randall C. Holli-day, and against the defendant, Dr. Robert Peden, in the full and true sum of Five Thousand and No/100 ($5,000.00) Dollars, together with legal interest thereon from date of judicial demand and for all costs of these proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.