source: Caselaw Access Project

author: MARCUS, Justice. CALOGERO, Justice,

license: Public Domain

text:
    Mrs. Charles Kinchen LUSHUTE v. Frank J. DIESI and Little Capitol of Louisiana.
    No. 59811.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Dissenting Opinion Jan. 13, 1978.
    Rehearing Denied Jan. 27, 1978.
    John M. Shaw, Lewis & Lewis, Opelousas, for defendant-applicant.
    Vance R. Andrus, Fontenot, Gautreaux & Andrus, Lafayette, for plaintiff-respondent.
   MARCUS, Justice.

On May 21, 1975, Mrs. Charles Kinchen Lushute instituted suit against Frank J. Diesi to recover workmen’s compensation benefits for the death of her husband, Charles Vincent Lushute, who died as a result of injuries sustained on May 23,1974, while repairing the air-conditioning system at the Little Capitol restaurant allegedly owned and operated by Diesi. On September 16,1975 (some sixteen months after the date of the accident), Mrs. Lushute filed a supplemental and amending petition making Little Capitol of Louisiana, Inc. a party defendant. It was alleged that the corporation was either a co-owner of the business with Diesi and as such liable in solido with him or alternatively was the sole owner of the restaurant. Exceptions of no cause or right of action filed on behalf of Diesi and of prescription filed on behalf of Little Capitol were referred to the merits. After trial, the district court concluded that Diesi and Little Capitol were both employers of Lushute and as such liable to plaintiff in solido; therefore, the supplemental and amending petition naming Little Capitol a party defendant was timely filed. Accordingly, the exceptions were overruled and judgment was rendered in favor of plaintiff and against defendants, in solido, for workmen’s compensation benefits in the sum of sixty-five dollars per week for five hundred weeks, plus the additional amount of $1,849.13 representing medical and funeral expenses. Defendants appealed.

The court of appeal concluded that the trial court erred in finding that Diesi was an employer of Lushute; accordingly, it dismissed plaintiff’s suit against Diesi. The court further found that Little Capitol was the sole owner and operator of the restaurant and that the suit timely filed by plaintiff against Diesi interrupted prescription as to Little Capitol. Accordingly, it found that the trial court correctly overruled the exception of prescription filed by Little Capitol. Next, finding that Lushute was as independent contractor, who just prior to his death, had spent a substantial part of his work time performing labor in carrying out the terms of his contract with the corporation to repair the air-conditioning system of the restaurant and that the work performed by Lushute was part of the trade, business or occupation of Little Capitol, the court of appeal concluded that Lu-shute was covered under the act and therefore affirmed that portion of the trial court’s judgment awarding compensation benefits in favor of plaintiff and against defendant Little Capitol. We granted Little Capitol’s application for certiorari to review the correctness of this judgment.

At the outset, we find that the court of appeal correctly affirmed the overruling of Little Capitol’s exception of prescription by the trial court for the reasons assigned in the opinion of the court of appeal.

We next address the principal issue presented for our determination, i. e., whether, under the facts and circumstances of this case, decedent (Lushute) was within the class of persons extended coverage under the workmen’s compensation act.

The pertinent facts are as follows. Lu-shute was a self-employed plumber, electrician and handyman who performed work for over two hundred fifty customers in the Melville, Louisiana area, one of which was Little Capitol. For several years when requested he repaired electrical, plumbing, refrigeration and air-conditioning equipment at the Little Capitol restaurant owned and operated by Little Capitol for which services he was paid six to seven dollars per hour. In performing these services, he used his own truck for transportation and his own tools. He made service calls to the restaurant on the average of about once or twice a month. On May 23, 1974, while attempting to repair one of the four air-conditioning units at the restaurant, Lu-shute fell through the ceiling sustaining serious injuries from which he died on the following day.

At the time of the accident, the pertinent provision of the workmen’s compensation act was La.R.S. 23:1021(6) which provided:

As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this Section:
(6) “Independent Contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.

After a review of the record, we are convinced that Lushute was an independent contractor as defined in the above provision. Evidence revealed that Lushute was employed by Little Capitol at an hourly rate to repair various items of equipment as they became inoperative. Little Capitol had no control as to the means by which Lushute repaired these items but rather had control as to the results of his work only. Having determined that Lushute was an independent contractor under La.R.S. 23:1021(6), we must next consider whether he was an independent contractor who was entitled to receive workmen’s compensation benefits under the provisions of the act. Resolution of this issue necessitates a determination as to what requirements must be met in order for an independent contractor to be entitled to receive workmen’s compensation benefits. In ascertaining these requirements, we find it necessary to briefly review the history and statutory scheme of the workmen’s compensation act as a whole.

By Act No. 20 of 1914, the legislature prescribed for the first time the liability of an employer to make compensation for injuries received by an employee in performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation. Included in this act was a provision, the predecessor of La.R.S. 23:1061, which extended workmen’s compensation benefits to workmen employed by a “contractor” in the execution of work undertaken by the principal where the work was a part of the principal’s trade, business or occupation. The term “contractor” appeared only in this provision and as defined therein referred to any person who contracted with the principal to execute work undertaken by the principal which was a part of the principal’s trade, business or occupation. The contractor was not covered under the act.

Subsequently, by Act No. 85 of 1926, the legislature reenacted the above provision with minor changes not pertinent here and thereby retained the definition of a contractor as it appeared in the 1914 provision. The provision as reenacted is presently La. R.S. 23:1061. At the same time, the legislature enacted a new provision which defined an independent contractor as “any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished.” The new provision expressly excluded an independent contractor from coverage under the act. The clear intent of the legislature in enacting this new provision, while also reenacting the 1914 provision, was not to discard the earlier definition of a “contractor” as provided in the 1914 act, but rather to make additional qualifications as to who would be considered an independent contractor so as to distinguish between an employee of the principal who was covered under the act and the independent contractor who performed work for the principal which was a part of the principal’s trade, business or occupation and who was not covered under the act. Considering the two provisions together, an independent contractor was defined as any person who rendered service which was part of the principal’s trade, business or occupation, other than manual labor, for a specified recompense and for a specified result either as a unit or a whole, under the control of his principal as to the results of his work only, and not as to the means by which such result was accomplished.

By Act No. 179 of 1948, the legislature adopted a new definitional provision with respect to independent contractors which extended workmen’s compensation benefits under limited circumstances to this class of persons. Retaining the 1926 definition of an independent contractor in its entirety, the new provision expressly excluded from coverage under the workmen’s compensation act an independent contractor “unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case said independent contractor is expressly covered by the provisions of this act.” The obvious purpose of extending compensation coverage to an independent contractor under the circumstances described in the provision was to prevent an employer from avoiding liability under the act by contracting with an independent contractor for the execution of work undertaken by the employer which was part of the employer’s trade, business or occupation. Hence, by this provision, La.R.S. 23:1021(6), the legislature extended workmen’s compensation benefits to an independent contractor as defined in the 1914 and 1926 acts (i. e., any person engaged in the execution of work undertaken by the principal which is a part of the trade, business or occupation of the principal for a specified recompense for a specified result and under the control of his principal as to the results of his work only) where a substantial part of his work time is spent in manual labor in carrying out the terms of the contract with his principal.

We therefore conclude that an independent contractor is covered under the workmen’s compensation law only when a substantial part of his work time is spent in manual labor in carrying out the terms of his contract with the principal and the work performed by him is a part of the principal’s trade, business or occupation.

Applying these principles to the instant case, we have previously determined that Lushute was an independent contractor. There is no dispute that just prior to the accident he was performing a substantial part of his work time in manual labor in carrying out the terms of the contract with Little Capitol to repair the air-conditioning system at the restaurant. The only remaining and disputed issue is whether Lushute’s repairing the air-conditioning system at the restaurant was a part of the trade, business or occupation of Little Capitol, i. e., the restaurant business. Whether work performed by an independent contractor is a part of the trade, business or occupation of the principal is a factual issue which must be determined under the circumstances of each case.

Under the facts of this case, we do not consider that the work performed by Lushute in repairing the air-conditioning system at the restaurant owned by Little Capitol was a part of Little Capitol’s trade, business or occupation. A properly functioning air-conditioning system, although desirable from the viewpoint of customer comfort and satisfaction, is not necessary for the operation of a restaurant. The service rendered by decedent at the time of the accident was not a part of the restaurant business but was merely incidental thereto. Since we conclude that the decedent was not performing work which was a part of the trade, business or occupation of Little Capitol at the time of the accident, he was not an independent contractor entitled to coverage under the workmen’s compensation act. Hence, we conclude that plaintiff is not entitled to recover workmen’s compensation benefits from Little Capitol for Lushute’s death resulting from work-related injuries.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed insofar as it awarded to plaintiff, Mrs. Charles Hin-chen Lushute, workmen’s compensation benefits against defendant, Little Capitol of Louisiana, Inc. Judgment is rendered in favor of defendant, Little Capitol of Louisiana, Inc., dismissing plaintiff’s suit. The costs in this court are assessed against plaintiff, Mrs. Charles Hinchen Lushute.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I dissent from the majority’s construction of the relevant amendments to Louisiana’s Workmen Compensation Act. R.S. 23:1021 et seq. The majority’s interpretation of these amendments places more requirements on an independent contractor’s receiving compensation payments than are intended by the unambiguous terminology of the Act.

Essential to the majority’s decision is its interpretation of Act. No. 20 of 1914 (as amended, R.S. 23:1061) as providing a definition of contractor which includes “any person who contracted with the principal to execute work undertaken by the principal which was a part of the principal’s trade, business or occupation.” (emphasis added). Such a definition can not be found even implicitly in the compensation statute. In fact no definition at all of this term is provided. The act only recites which employees of contractors are provided coverage.

The majority then construes this alleged partial definition of “contractor” with the definition of “independent contractor” found in Act No. 85 of 1926 (now a part of R.S. 23:1021(6)) to determine that an independent contractor (who was totally excluded from coverage) was defined as: “any person who rendered service which was part of the principal’s trade, business or occupation, other than manual labor, for a specified recompense and for a specified result either as a unit or a whole, under the control of his principal as to the results of his work only, and not as to the means by which such result was accomplished.”

Using this definition of “independent contractor” it is understandable how the majority concludes that Mr. Lushute was not entitled to compensation benefits despite his meeting the provision of Act 179 of 1948 which for the first time allowed benefits to an “independent contractor”, i. e. that the “independent contractor” spend a substantial part of his work time doing manual labor.

This reasoning on the part of the majority is rather torturous to say the least. And torturous it must be if the unambiguous directive of 23:1021(6) (an independent contractor a substantial part of whose time is spent in manual labor in carrying out the terms of the contract is “expressly covered by the provisions of this Chapter”), is to be thwarted by an interpretative qualification, neither apparent nor intended by the legislature (that the contractor’s service must be in connection with the principal’s trade, business or occupation).

R.S. 23:1021(6) provides:

“Independent Contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.

While the foregoing provision is found simply in the definitions article, it is a very unambiguous directive. The phrase “expressly covered by the provisions of this Chapter” should be interpreted to mean “entitled to workmen’s compensation benefits.”

Only one reported decision has directly confronted this problem. In Sam v. Deville Gin, Inc., 143 So.2d 838 (La.App.3d Cir. 1962), Hood, J. author, the court found that a manual contractor was covered without regard to whether the work being performed was part of the trade, business or occupation of the principal.

Several other Court of Appeal decisions, like, the one here under review, have gone on to consider the character of the service of a manual contractor, thus implying, if not explicitly requiring, that a manual contractor must be performing work which is an integral part of the principal’s trade, business or occupation to be covered by the workmen’s compensation act.

For instance in Vizena v. Travelers Ins. Co., 238 So.2d 238 (La.App.3d Cir. 1970), the court found a welder to be a manual contractor and then went on to find that he was engaged in his principal’s oil and gas refinery business. And in Meche v. Farmers Drier and Storage Co., 193 So.2d 807, (La.App.3d Cir. 1967) an independent manual contractor engaged in rodent control services was found to be performing an integral part of the rice mill-warehouse business.

On the other hand the noted authority Professor Wex Malone has offered a resolution of this problem consonant with that suggested above by this author.

“In Louisiana, (unlike most jurisdictions) the contractor who spends a sub stantial part of his worktime in manual labor is entitled to compensation just as though he were an employee. In the event of such a claim by a working contractor, how should the relationship between the contractor’s work and the business of the principal be tested? If the contractor is to be regarded as strictly analogous to the direct employee, the contractor repairing or improving his principal’s business will be entitled to compensation (even though the contractor’s own employee who was injured while doing the same work would be denied recovery against the same principal in a suit based on R.S. 23:1061).
The problem outlined above was considered at length by the Court of Appeal in Sam v. Deville Gin, Inc. The opinion concluded that contractors entitled to compensation under R.S. 23:1021(6) should be treated in this respect just as though they were a direct employee and that the liberal test that controls the employee’s suit should be made applicable in the suit by the working contractor.
At first glance it may appear difficult to approve an approach that would accord a recovery to the contractor when it would be denied to the contractor’s own employee against the same principal for an identical accident. On further reflection, however, the injustice disappears. We need only reflect upon the purpose of R.S. 23:1061, which requires that the work done by the contractor must be part of the business of the principal before the contractor’s employee is entitled to compensation from the latter. Ordinarily a principal is not and should not be subjected to the compensation claims of his contractor’s employees. The compensation burden in such instances properly rests upon the contractor himself. It is only when the principal seeks to avoid his own compensation obligation by farming out part of his normal operations to a contractor that an evil arises requiring exceptional treatment. Otherwise, the compensation obligation should rest upon the contractor alone. If, then, repair work done on business premises is customarily done by specialized contractors, there is no sound reason why the principal should be directly responsible to his contractor’s workers. He has in no way sought to avoid his normal compensation responsibility through resort to the use of a contractor as intermediary.
On the other hand, the policy that underlies R.S. 23:1021(6) (granting the contractor doing manual work the same rights as the direct employee) is entirely different. This section was added by amendment in 1948 because the former distinction between contractor and employee had become so tenuous and so difficult to administer that the cases were in a state of almost helpless confusion, and many injustices were apparent. The new provision was added in order to relieve the courts of this difficulty by requiring that all manual workers be treated the same, whether they were regarded technically as contractors or employees. The court, by entitling the contractor the more liberal approach on this matter, does not in any way detract from any entitlements formerly enjoyed by the contractor’s employee, who still retains the right to proceed against his own employer, the contractor.” Malone, La. Workmen’s Compensation, Sec. 73 (1964 pocket part, page 28) (citations omitted)

Other decisions cited by plaintiff-relator are not pertinent. Thibodaux v. Sun Oil Co., 218 La. 453, 49 So.2d 852 (1950); Fisher v. Cash Grocery and Sales, 316 So.2d 872 (La.App.3d Cir. 1975); Ball v. Kaiser Aluminum & Chemical Corp., 112 So.2d 741 (Orl.App.1959), and Horrell v. Gulf & Valley Cotton Oil Co., 15 La.App. 603, 131 So. 709 (Orl.App.1930), all involved an employee of a contractor.

Ponthieux v. Lindsay, 254 La. 647, 226 So.2d 482 (1969); McMorris v. Home Indemnity Ins. Co., 236 La. 292, 107 So.2d 645 (1959); Shipp v. Bordelon, 152 La. 795, 94 So. 399 (1922) and Edwards v. Stafford, 153 So.2d 106 (La.App. 1st Cir. 1963) each turned on the employer’s not being engaged in a hazardous trade, business or occupation.

Por the above reasons I dissent from the majority’s decision. Whether the manual labor performed by the contractor Lushute was a part of the trade, business or occupation of his principal is irrelevant under the express provisions of R.S. 23:1021(6). As Mr. Lushute was an independent contractor a substantial part of whose work time was spent in manual labor performing services for defendant-relator, Little Capitol of Louisiana, Inc., he should have been afforded coverage under our workmen’s compensation statute.

      . 343 So.2d 1132 (La.App.3d Cir. 1977).

      . 346 So.2d 215 (La.1977).

      . This provision is presently La.R.S. 23:1021(5).

      . La.R.S. 23:1061 provides:
      Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

      . This provision of Act 179 of 1948 was included under “Definitions” in the workmen’s compensation law (La.R.S. 23:1021(6)) and provided:
      A person rendering service for another in any of the trades, businesses or occupations covered by this act is presumed to be any employee under this act. The term “independent contractor”, shall be considered to mean, for the purpose of this act, any person who renders service, other than manual labor, for a specified recompense for a speci-tied result either as a unit or a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this act unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case said independent contractor is expressly covered by the provisions of this act.

      . Act 20 of 1914 provides in pertinent part:
      Section 6. 1. Be it further enacted, etc., That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he has contracted to perform, and contracts with any other person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.

        . The “chapter” referred to in 23:1021(6) is Chapter 10, Workmen’s Compensation, R.S. 23:1021, et seq.


author: DENNIS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Emmitt HILLS.
    No. 59828.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Dissenting Opinion Jan. 30, 1978.

      Vincent Wilkins, Jr., Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Emmitt Hills, was convicted of aggravated rape, La.R.S. 14:42, and sentenced to life imprisonment pursuant to a jury verdict of guilty without capital punishment.

On appeal defendant relies upon nine assignments of error.

On January 13,1972, at about 10:30 p. m., the victim and her husband were accosted on the front porch of their home by defendant, who was then sixteen years old. Defendant, who was armed with a pistol, robbed the couple and locked the husband in the trunk of their car. He then forced the victim to drive to several locations in Baton Rouge and raped her three times. After the defendant left the automobile, the victim freed her husband, and reported the incident to the police. The defendant was arrested shortly thereafter as a result of a physical description of the assailant broadcast over police radio.

ASSIGNMENTS OF ERROR NOS. 9 and 11

These assignments essentially present issues of credibility of witnesses.

Defendant was arrested at approximately 11:45 p. m. on January 13, 1972 by two Baton Rouge policemen. He was taken to police headquarters where pubic hair samples were taken and where he was identified by the victim in a line-up. During interrogation, the defendant orally inculpated himself in the commission of the rape and directed the officers to the location of the pistol used in the offense. At about 8:30 a. m. on January 14, 1972, defendant was again interrogated and driven to various locations relating to other crimes; at 3:30 p. m. and 5:40 p. m. that day, he confessed to crimes other than the charged offense.

On appeal, defendant contends that the oral inculpatory statement which led to the gun and the later signed confessions to other crimes were not freely and voluntarily given. Defendant asserts that he was not timely given Miranda warnings, that his confessions were induced by being struck, by threats of being beaten and shot, by the deprivation of food and sleep for fifteen hours, and by the denial of an opportunity to confer with his parents.

At the hearing on defendant’s motion to suppress, the State bore the burden of proving beyond a reasonable doubt the free and voluntary nature of the inculpato-ry statements made by the defendant. La.C.Cr.P. art. 703(C); La.R.S. 15:451; State v. Glover, 343 So.2d 118 (La.1977). In the instant case, a review of the record establishes convincingly that defendant was advised of his rights and signed a written waiver form. Although the police officers’ testimony was unclear as to some details relating to the time the Miranda warning was given in relation to discovery of the pistol, there was adequate definite testimony from which the trial judge could conclude that it occurred before any inculpato-ry information was obtained from the defendant. The defendant’s testimony does not controvert the State’s version because he denied giving any statement relating to the location of the pistol or the crime in the instant case. He did acknowledge his signature on the waiver form and his testimony indicates that he signed it before the line-up. Further, defendant admitted that he knew that if he wanted an attorney present the State had to furnish one before questioning him.

Except for the fact that the defendant was sixteen years old at the time of his arrest, there is nothing in the record which tends to support his argument that his will was overborne by a denial of parental counsel. Most significant, we feel, is the fact that defendant never requested that he be allowed to consult with his parents. Although the United States Supreme Court has indicated that interrogations of juveniles should be closely scrutinized to determine the issue of voluntariness, an examination of the entire record before us on appeal reveals that no violence was done to the constitutional rights of this juvenile defendant because of his isolation from his parents. Emmitt Hills was apparently of at least average intelligence, having progressed satisfactorily to the eleventh grade at the time of his arrest. Moreover, the defendant was not naive in the ways of law enforcement officers; the record indicates that he was somewhat “street-wise,” having previously served time in a state juvenile facility. Because of the youth of the defendant, we have carefully scrutinized the record to determine if his parents were denied access to him at a crucial time or if he was deprived of his free will by his isolation from them and we are unable to say that his rights were violated in either respect.

The defendant’s allegations as to coercion by force, threats and physical deprivation were adequately rebutted by the State’s evidence except for one incident. Although the State did not recall its witnesses to refute the defense evidence point by point, as is highly desirable in such cases, the direct examination of its witnesses answered sufficiently all but one of the defendant’s uncorroborated assertions of police misconduct.

The testimony of the police officers was that the defendant had been interrogated intermittently from the time of his arrest at 11:45 p. m. until 6:00 p. m. the next day, but that he had been allowed to rest and sleep between question periods in a bunk at the headquarters. One such “rest period” was from 6:00 a. m. to 8:30 a. m., when the defendant was allowed to sleep undisturbed. During the second day of his incarceration, defendant was taken to the scene of other crimes, questioned, and statements were taken from him that afternoon at 3:30 and 5:40 p. m. Although the testimony of the prosecution witnesses was not uniform in recollection of detail it adequately supported factual determinations that defendant had not been unduly deprived of food, drink, or rest, and that he had not been molested on all but one occasion.

According to defendant, soon after he arrived at police headquarters, a group of detectives began talking about shooting him in the foot and head and throwing him in the river. Defendant said they told him a detective named Gill shot another boy and threw him in the river. Defendant testified that when he returned from the line-up he was struck by officer Gill. Under the version of the facts most favorable to the State the line-up was held immediately before defendant signed the waiver form and made oral inculpatory statements. Officer Gill did not testify, and the threats and the beating incident were not specifically controverted by the testimony of any witness.

In view of the burden on the State in such circumstances to prove affirmatively beyond a reasonable doubt the voluntary nature of the confession, the State is required to rebut specific testimony introduced on behalf of the defendant concerning factual circumstances which indicates coercive measures or intimidation; it cannot simply rely on general testimony of officers not present that they witnessed no coercion, intimidation, or other undue influence. State v. Simmons, 328 So.2d 149, 152 (La.1976); State v. Simien, 248 La. 323, 178 So.2d 266 (1965); State v. Honeycutt, 216 La. 610, 44 So.2d 313 (1950); State v. Robinson, 215 La. 974, 41 So.2d 848 (1949).

We find, therefore, that the State has not borne its burden of proving the confession free and voluntary and that these assignments have merit insofar as they relate to the defendant’s specific testimony of threats by unnamed officers and of physical abuse by officer Gill.

ASSIGNMENTS OF ERROR NOS. 21, 22, 25 and 27

Defendant contends that the trial court erred in admitting improper evidence on two occasions by the State on rebuttal; in this regard, he alleges error on the part of the court in failing to grant a mistrial or to allow reopening of the defendant’s case in chief with a continuance to enable him to subpoena witnesses in rebuttal. In its case in chief the State introduced the pistol and evidence of how the defendant had directed the police to it. The prosecution also presented the Prieur -type testimony of the victim of another rape identifying defendant as her assailant. The defense offered alibi evidence as to both the charged crime and the other offense. In rebuttal the State introduced defendant’s written confession to the other offense and his oral inculpatory statement in which he directed the police to the gun involved in the charged crime. Defendant argues that this rebuttal evidence should have been part of the State’s case in chief and that defendant was denied the opportunity to prove the involuntary nature of the prejudicial statements. Thus, he contends, the trial court committed reversible error.

Defendant contends that the decision of this Court in State v. Turner, 337 So.2d 455 (La.1976), compels the conclusion that the trial court committed reversible error in allowing the State to introduce defendant’s inculpatory statements in rebuttal. In Turner, we noted that orderly trial procedure seeks to avoid two types of prejudice by forbidding the State to introduce evidence on rebuttal which properly is part of its case in chief:

“(1) Since in Louisiana ‘the defendant is without right to rebut the prosecutor’s rebuttal’, La.R.S. 15:282, the defendant may be prejudiced by the denial to him of an opportunity to defend against new issues; and
“(2) The production of strong prosecution evidence in chief after the defendant rests his case may unfairly emphasize the prosecution’s ‘rebuttal’ evidence, contrary to the legislatively intended order of proof, La.C.Cr.P. art. 765(5), designed from ancient experience to assure fairness in our criminal trials.
“The first type of prejudice may often be cured. If the trial court exercises its discretion to permit the state to offer in rebuttal material evidence inadvertently omitted from its ease in chief, the prejudice thereby caused may normally be avoided by the trial court’s permitting the defendant to introduce additional evidence to defend against the new issue thereby raised. La.C.Cr.P. art. 765(5). See State v. Scott, 320 So.2d 538 (La.1975). Further, the failure of the defendant to request such reopening of the evidence in order to avoid such prejudice may under some circumstances be presumed to indicate that prejudice of this type is not presented for review. State v. Johnson, 141 La. 775, 783, 75 So. 678 (1917); State v. Smith, 120 La. 520, 532, 45 So. 415 (1908).
“The second type of prejudice is sometimes incurable. Whether reversible error has resulted may depend upon the nature of the new evidence offered by the state for the first time in improper rebuttal. Improper rebuttal with regard to a peripheral issue may be regarded as harmless. State v. Major, 318 So.2d 19 (La.1975). To the contrary, however, if the evidence injects an entirely new issue which should have been an important part of the state’s case in chief, State v. Campbell, 263 La. 1058, 270 So.2d 506 (1972), or if it unfairly places extreme weight on a part of the state’s evidence which should have been introduced in the case in chief, cf. State v. Davis, 246 La. 383, 164 So.2d 589 (1964).” 337 So.2d at 458.

Defendant suffered neither type of prejudice. The State’s rebuttal evidence related to issues introduced by its case in chief, against which the defendant had an opportunity to defend. Further, the order of presentation did not “unfairly place extreme weight” on the State’s rebuttal evidence. Introduction of the defendant’s confession to the prior rape did not inject a new issue but directly controverted an alibi offered by the defense. The testimony regarding the location of the pistol was basically repetitive, of evidence offered by the prosecution’s case in chief. The elements of surprise and undue advantage which distinguished the situation in Turner are not-present here.

Control of evidence presented by the State on rebuttal is within the sound, discretion of the trial judge whose ruling “will not be disturbed except in extreme cases, as where the evidence has been kept back deliberately and for the purpose of deceiving and obtaining an undue advan-.. tage of defendant.” State v. Turner, supra, at 459. Such abuse of discretion is not present in the instant case. Defendant’s assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 23

Defendant contends that the trial judge erred in refusing to order a mistrial when a police officer, as a State rebuttal witness, made an unsolicited reference to unrelated crimes allegedly committed by the accused. Defendant contends that a police officer should be considered a “court official” under the provisions of La.C.Cr.P. art. 770, which provides that a mistrial is mandatory when such an official, within the hearing of the jury, refers to other crimes committed by the defendant as to which evidence is not admissible. Alternatively, defendant argues that the trial court abused its discretion in refusing to grant a mistrial under La.C.Cr.P. art. 771, which provides that, when a prejudicial remark is made by anyone within the hearing of the jury, the. judge may grant a mistrial if he believes that an admonition to the jury is insufficient.

The testimony to which defendant objected involved prosecution interrogation of a police officer regarding a statement signed by defendant admitting his commission of a prior attempted rape. The following exchange occurred:

“Q. And, of course, you didn’t suggest any of. this — any of this information [about the attempted rape]?
“[DEFENSE COUNSEL]: We’re going—
“A. No, sir.
“[DEFENSE COUNSEL]: —to object—
“A. —Uh—
“[DEFENSE COUNSEL]: —to counsel leading the witness, Your Honor.
“[PROSECUTOR]: Q. Well, did you — did you suggest—
“A. This was voluntary on his part. Uh — When we first started questioning him, he — uh—admitted to some burglaries.”

Defense counsel’s motion for a mistrial was denied by the trial court; the trial judge did, however, admonish the jury to disregard the police officer’s remarks.

This Court has held that “the unsolicited, unresponsive remark of a [police officer] as to another crime is not the comment of a ‘court official’ which would mandate a mistrial under Article 770 of the Code of Criminal Procedure.” State v. Hegwood, 345 So.2d 1179, 1184 (La.1977). See also, State v. Hardy, 344 So.2d 1018 (La.1977); State v. Jones, 332 So.2d 466 (La.1976). Further, we find in the instant case that the trial court’s admonition to the jury to disregard the officer’s remark was sufficient to cure any prejudice suffered by the defendant. The brief reference to the fact that defendant had committed some burglaries, as a practical matter, did not result in undue prejudice to the defendant, since the State had already introduced evidence of a prior attempted rape, a far more serious offense. We believe that the action of the trial judge in immediately halting the testimony and promptly admonishing the jury was adequate to dispel any substantial prejudice which may have resulted from the remark; therefore, we find that defendant’s assignment number 23 is without merit.

. ASSIGNMENTS OF ERROR NOS. 29 and 30

Defendant contends that the trial court erred in denying a defense motion to vacate his sentence and in denying a motion to transfer the case to family court. Defendant argues that since the jury returned the verdict of “guilty without capital punishment” that he was not convicted of a capital offense and therefore the district court lacked the jurisdiction to impose a sentence of life imprisonment. Defendant acknowledges that the district court was the proper court within which to try defendant, La. Const, of 1921, Art. 7, §§ 52, 53, but contends that it could not impose the sentence.

In the instant case defendant was tried for aggravated rape, a capital offense at the time of trial. Return of a guilty verdict without capital punishment cannot be viewed as an acquittal on the charge of aggravated rape. Although the death penalty could not be imposed, the offense was still classified as “capital” by the legislature. State v. Tyler, 342 So.2d 574 (La.1977). Therefore, the district court retained jurisdiction for sentencing of the offense, and the instant assignments of error are without merit.

In summary, we find no trial error except for the possible error on the motion to suppress. Therefore, it is not necessary at this time to reverse the conviction and order a new trial, because the possibility of error might be eliminated upon another trial of the motion to suppress. State v. Simmons, 328 So.2d 149 (La.1976); see, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1174, 12 L.Ed.2d 908 (1964). We reserve to the trial judge the power to grant a new trial, should he determine that defendant’s incul-patory statements were inadmissible because of the alleged coercion and intimidation by officer Gill and others. If, on the other hand, the trial judge determines, after a hearing on the motion to suppress, that the inculpatory statements and evidence resulting therefrom were admissible, the right to appeal from such ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

The case is remanded to the district court for further proceedings in accordance with this opinion.

SANDERS, C. J., and MARCUS, J., concur.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

Testimony of Officer Canter and Detective Cupit was in direct conflict with the defendant’s claim of ill treatment. So many claims of abuse were put forth by the defendant and repudiated either directly or indirectly, that the incredible claim that the officers talked about shooting defendant in the foot and throwing him in the river, as Detective Gill had done to another boy, was unworthy of a retort. In State v. Simms, 310 So.2d 587 (La.1975), this Court was confronted with such a proposition and met the issue in this way:

“In this case the officers specifically testified on direct examination that there was no force or violence used against the defendant when the confession was obtained. Although this evidence was not introduced in rebuttal of the defendant’s testimony, it is in direct conflict with the defendant’s version of the incident. It would be superfluous to require the officers to take the stand to repeat what they testified to in the State’s affirmative showing.” At page 589.

Credibility of the witnesses on the volun-tariness issue was involved here and the trial judge properly determined the conflict in testimony against the defendant.

I respectfully dissent from the remand.

      . In Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), a pre-Miranda case, the Court invalidated the conviction of a fifteen-year-old boy who was held incommunicado until a confession was obtained, and who was unaware of his right to remain silent.

      . We note here that a different issue would be presented if the State had withheld until rebuttal a confession by the defendant to the offense charged, rather than to a collateral offense. See, State v. Scott, 320 So.2d 538 (La.1975).


author: MARCUS, Justice.

text:
    DUER & TAYLOR v. BLANCHARD, WALKER, O’QUIN & ROBERTS.
    No. 60658.
    Supreme Court of Louisiana.
    Jan. 10, 1978.

      Arthur E. Melnerney, Duer & Taylor, New York City, for plaintiffs-appellants.
    Marlin Risinger, Jr., Jerald L. Perlman and Randall S. Davidson, Blanchard, Walker, O’Quin & Roberts, Shreveport, for defendant-appellee.
   MARCUS, Justice.

Pursuant to La.R.S. 13:72.1 and Rule XII of the Supreme Court of Louisiana, the United States Court of Appeals for the Fifth Circuit has certified the following question of law to this court:

Whether or not Louisiana Civil Code Art. 3538 prescribes an action by one attorney against another for a share in a fee collected more than three years before the action was brought? [footnote omitted]

Included in the certificate as required by Rule XII is a statement of facts showing the nature of the cause and the circumstances out of which the question of law arises:

In 1965, Gloria C. McGehee and Powell Crichton, Jr. retained the New York law firm of Duer & Taylor to represent them as claiming heirs in the Succession of Kate Crichton Gredler in Louisiana. Duer & Taylor associated the Louisiana law firm of Blanchard, Walker, O’Quin & Roberts to perform certain legal services. The exact terms of the contract of affiliation are in dispute. Mrs. McGehee and Mr. Crichton eventually succeeded in securing their claimed rights to the succession. They obtained a judgment of possession on April 2, 1971. The contingent attorneys’ fee payable to the Louisiana law firm consisted of a share of the property. It was paid by an assignment of rights and the judgment of possession recognized the attorneys’ interest, thus satisfying the debt of Mrs. McGehee and Mr. Crichton for attorneys’ fees.
On June 12, 1975, the New York firm of Duer & Taylor commenced an action against the Louisiana attorneys, Blanchard, Walker, O’Quin & Roberts, seeking a share of the fee. The defendant law firm moved for summary judgment on the ground that the claim was prescribed by the Louisiana limitations statute, [footnote omitted]
La.Civ.Code Ann. art. 3538 (West 1953) provides:
The following actions are prescribed by three years:
That of . attorneys for their fees and emoluments.
The district court granted the requested summary judgment, holding the prescription applies to actions by one attorney against another for a share of the fees collected from a client, as well as to suits by an attorney against a client.

We will now address the question certified.

Louisiana jurisprudence is well settled that the character of an action given by a plaintiff in his pleadings determines the prescription applicable to it. Loew’s, Incorporated v. Don George, Inc., 237 La. 132, 110 So.2d 553 (1959); United Carbon Company v. Mississippi River Fuel Corp., 230 La. 709, 89 So.2d 209 (1956); Sims v. New Orleans Ry. & Light Co., 134 La. 897, 64 So. 823 (1914); Burch v. Willis, 21 La.Ann. 492 (1869); Lutz v. Forbes, 13 La.Ann. 609 (1858); Wilson v. McGreal, 12 La.Ann. 357 (1857). It is equally well settled that prescription is stricti juris and the statutes on the subject cannot be extended from one action to another, nor to analogous cases beyond the strict letter of the law. Gulf Oil Corporation v. State Mineral Board, on rehearing, 317 So.2d 576 (La.1975); State v. Stewart Bros. Cotton Co., Inc., 193 La. 16, 190 So. 317 (1939); Garland v. Estate of Scott, 15 La.Ann. 143 (1860). Therefore, in resolving the certified question, we must examine the character of the action between the parties to determine the applicable prescriptive period.

Where an attorney retained in a case employs or procures the employment of another attorney to assist him, as regards the division of the fee, the agreement constitutes a joint adventure or special partnership. McCann v. Todd, 203 La. 631, 14 So.2d 469 (1943). The interest which each attorney possesses under such an agreement is the right to participate in the fund resulting from the payment of the fee by the client. Therefore, a suit by an attorney against another attorney to recover, pursuant to such an agreement, a portion of the fee collected by the latter party from the client is not one for the recovery of attorney’s fees, but rather is one for breach of the agreement to share in the fund resulting from the payment of the fee. The applicable prescription is not three years as provided by La.Civil Code art. 3538 but that of ten years as provided by La.Civil Code art. 3544.

We are supported in this conclusion by the decision of Marek v. McHardy, 234 La. 841, 101 So.2d 689 (1958). In that case, plaintiff-physician sued to recover damages allegedly sustained as a consequence of defendants-physicians’ breach of a contract to give the plaintiff an interest in a partnership to be formed for the practice of medicine. The interest claimed by the plaintiff was the right to participate in a partnership fund which resulted from the payment of fees by the patients of the defendants’ clinic. The defendants interposed a plea of liberative prescription of three years pursuant to La.Civil Code art. 3538. In overruling the plea of prescription, this court characterized the action instituted by the plaintiff not as a suit for recovery of physician’s fees, but rather as one for recovery of damages sustained by defendants’ breach of contract. Accordingly, the applicable prescription was not three years but that of ten years provided by Article 3544. We do not consider an action by an attorney for a share in a single fee distinguishable from the action brought by the plaintiff in Marek in which he claimed the right to participate in a partnership fund resulting from the payment of several fees.

Reliance on the decision of Linton v. Harman, 5 La.Ann. 603 (1850) as support for the contention that the claims for fees by attorneys, no matter against whom they are brought, prescribe in three years is misplaced. Under the facts of that case, plaintiff-attorney brought an action against the surviving widow of a deceased client for services rendered to her late husband during marriage. All property of the community had been adjudged to her by a decree of court. The claim was that she had thereby become liable for the community debts. Clearly, the character of this action was for recovery of attorney’s fees which had not been paid. The applicable prescription was three years under La.Civil Code art. 3538. The character of the action in the certified question is breach of contract and not for recovery of attorney’s fees. Hence, the decision in Linton is inapposite.

JUDGMENT

For the foregoing reasons and in response to the question certified, La.Civil Code art. 3538 does not prescribe an action by one attorney against another for a share in a fee collected more than three years before the action is brought. Rather, the action, being one for breach of contract, is subject to a prescription of ten years under La.Civil Code art. 3544.

      . La.R.S. 13:72.1 provides:
      A. The supreme court of this state may, by rule of court, provide that when it shall appear to the Supreme Court of the United States, or to any court of appeals of the United States, that there are involved in any proceeding before it questions or propositions of the laws of this state, which are determinative of the said cause, and there is no clear controlling precedent in the decisions of the supreme court of this state, such federal appellate court may certify such questions or propositions of the laws of this state to the supreme court of this state for instructions concerning such questions or propositions of state law, which certificate the supreme court of this state may, by written opinion, answer.
      B. The supreme court of this state is hereby authorized and empowered to collaborate with any and all other courts of last resort of other states and of the United States in the preparation and approval of uniform rules of court to make effective this and similar laws.

      . Rule XII provides in pertinent part:
      Section 1. When it appears to the Supreme Court of the United States, or to any circuit court of appeal of the United States, that there are involved in any proceedings before it questions or propositions of law of this state which are determinative of said cause independently of any other questions involved in said case and that there are no clear controlling precedents in the decisions of the supreme court of this state, such federal court before rendering a decision may certify such questions or propositions of law of this state to the Supreme Court of Louisiana for rendition of a judgment or opinion concerning such questions or propositions of Louisiana law. This court may, in its discretion, decline to answer the questions cértified to it.
      Section 2. The provisions of this rule may be invoked by the Supreme Court of the United States or any circuit court of appeal of the United States upon its own motion or upon the suggestion or motion of any interested party.
      Section 3. The certificate provided for herein shall contain the style of the case, a statement of facts, showing the nature of the cause and the circumstances out of which the questions or propositions of law arise, and the question or questions of law to be answered.

      . Duer & Taylor v. Blanchard, Walker, O’Quin & Roberts, United States Court of Appeals for the Fifth Circuit, 558 F.2d 328, on appeal from the United States District Court for the Western District of Louisiana, 425 F.Supp. 1373.

      . In accordance with Rule XII, Section 6, Supreme Court of Louisiana, the parties filed briefs in this court with respect to the question certified. Oral argument was granted upon application. The matter was argued and submitted.

      . La.Civil Code art. 3544 provides:
      In general, all personal actions, except those before enumerated, are prescribed by ten years.

      . In addition to providing that the action of attorneys for their fees and emoluments are prescribed in three years, La.Civil Code art. 3538 provides a prescription of three years for various other types of actions among which is: “That of physicians, surgeons and apothecaries for visits, operations and medicines.”

      . Pursuant to Rule XII, Section 8, Supreme Court of Louisiana, the judgment rendered by this court upon the question certified shall be sent by the clerk of this court under seal of this court to the United States Court of Appeals for the Fifth Circuit and to the parties, Duer & Taylor and Blanchard, Walker, O’Quin & Roberts.


author: PER CURIAM. DENNIS, J.,

text:
    STATE of Louisiana v. John BOISSERE.
    No. 60324.
    Supreme Court of Louisiana.
    Jan. 20, 1978.
    Fred C. Jackson, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, A. Z. Butterworth, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Defendant John Boissere was charged by grand jury indictment with simple escape in violation of La.R.S. 14:110A(1), and on April 21,1977, after trial by jury was found guilty as charged. Subsequently he was sentenced to serve five years at hard labor in the custody of the Department of Corrections with the sentence to run consecutively with any sentence he was then serving. Following his conviction and sentence, a motion for appeal was filed on his behalf and in due course the appeal was lodged with this Court.

In connection with the appeal, a brief was filed by the attorney appointed by the district court to represent defendant in which the argument is set forth that “there is a total lack of evidence presented at the trial of this case, thus making the conviction of simple escape illegal.” However, defense counsel has not properly preserved the issue for appeal, since the trial was before a jury and no motion for a new trial on the basis that there was no evidence presented of an essential element of the crime charged was filed. See State v. Blackstone, 347 So.2d 193 (La.1977) and cases cited therein.

In addition to the.brief filed by defendant’s appointed counsel, defendant filed a pro se brief on his own behalf, essentially raising five issues for this Court’s consideration. In this brief he contends that he filed a motion with the district court to dismiss his court appointed trial counsel as his appellate counsel and that the district court failed to respond to the motion. A copy of a letter mailed to the trial court requesting the dismissal of counsel is attached to defendant’s pro se brief. However a letter from the district judge, sent to this Court, at its request, states that this letter is not a part of defendant’s record below. The trial judge also indicates that he does not recall receiving the letter, but that such requests from inmates are not unusual and are generally denied.

Nevertheless, this Court has reviewed the issues raised by defendant in his pro se brief and finds no grounds for reversal of defendant’s conviction on appeal. The issue raised by defendant with respect to his right to effective counsel is properly raised by application for writ of habeas corpus at which time a full evidentiary hearing may be ordered on the matter. State v. Anthony, 347 So.2d 483 (La.1977); State v. Daniels, 346 So.2d 672 (La.1977); State v. Ross, 343 So.2d 722 (La.1977).

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

DENNIS, J.,

concurs.

The contention that there was a total lack of evidence of an essential element of the crime has merit, but the issue was not properly raised for appellate review. However, petitioner may still present the issue for adjudication through a proper application for writ of habeas corpus.


text:
    Mary Ellen Sheehan PEREZ v. Chalin O. PEREZ and Whitney National Bank.
    No. 61418.
    Supreme Court of Louisiana.
    Jan. 18, 1978.
   In re: Chalin 0. Perez applying for remedial writ of review and stay order. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. John BOUDREAUX, Willie Boudreaux.
    No. 61452.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: John Boudreaux, Willie Bou-dreaux, applying for supervisory and/or remedial writs. Parish of Jefferson.

Writ granted. The legislature has provided that, at the preliminary examination, the defendant may produce witnesses, “who shall be examined in the presence of the defendant and shall be subject to cross-examination.” La. C.Cr.P. art. 294. On January 12, this court ordered the trial court to accord the accused their statutory right, which implements Article 1, Section 14, La. Constitution of 1974. Despite our order, the trial court has refused to permit the accuseds to call and cross-examine witnesses, a right mandated to them by statute and previously ordered by us.

We set aside the determination of probable cause at the preliminary hearing. Once again, we order the district judge to accord the accused their statutory rights. The trial on the merits is stayed until conclusion of the preliminary examination.

SANDERS, C. J., and SUMMERS, J., dissent from this grant.

CALOGERO, J., absent.


text:
    CITY OF BATON ROUGE v. Doris GUILLORY.
    No. 61107.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Doris Guillory applying for writ of certiorari. Parish of E. Baton Rouge.

Writ granted. Relator’s failure to appear in court was not a violation of La. Code of Criminal Procedure, Art. 21. Ruling of the City Court holding relator in direct contempt of court is reversed and set aside.

SANDERS, C. J., and SUMMERS, J., would deny.


text:
    LAKE FOREST, INC., Pati-Four and the Ground Pat’I, Inc. v. Edward R. DRURY and C. Reece Owen, Jr.
    No. 61320.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Ground Pat’I, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 352 So.2d 305.

Writ denied.

DIXON and DENNIS, JJ., would grant.


text:
    LAKE FOREST, INC., Pati-Four and the Ground Pat’I Inc. v. Edward R. DRURY and C. Reece Owen, Jr. a/k/a Clarence Reece Owen, Jr.
    No. 61371.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Lake Forest, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 352 So.2d 305.

Writ denied.

DIXON and DENNIS, JJ., would grant.


text:
    STATE of Louisiana v. Bernard POMES, III, and Wanda Hamilton.
    No. 61310.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Bernard Pomes, III and Wanda Hamilton applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson.

Denied.

TATE, CALOGERO and DENNIS, JJ., would grant.


author: TATE, Justice

text:
    STATE of Louisiana v. Nick KARNO.
    No. 61329.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Nick Karno, applying for writ of certiorari. Parish of Orleans.

Writ denied. There is no abuse of discretion on the part of the trial judge.

TATE, J., dissents with written reasons.

Application for Supervisory Writs

TATE, Justice

(dissenting from denial).

I would grant the writ.

The virtually unanimous medical testimony indicates a probable heart attack if the accused is brought to trial, with a substantial possibility of fatal consequences. In my opinion, under this showing, the public’s interest in a trial of the offense charged, is outweighed by the right of the accused to personal survival and the constitutional presumption of his innocence. Under our constitutions, and in the light of our society’s belief in the importance of each individual and its humanitarian values, the public’s need for punishment and the media’s desire for spectacle are outweighed by the need for individual justice to the accused, where his trial represents a substantial possibility of his death, whether or not he is innocent of the charge.

I respectfully dissent from the denial of supervisory relief. The trial should be continued until such time, if ever, when fatal consequences do not represent such a relatively high probability if the prosecution proceeds.


text:
    Succession of Louis J. MOHANA, Sr.
    No. 61266.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Joy Mohana Sonnier applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. 351 So.2d 1287.

Denied.

SUMMERS and DENNIS, JJ., are of the opinion the writ should be granted.


text:
    Morris Lee JAVERS, Jr., Dennis Reed and Genevieve Cole v. COUNCIL OF the CITY OF NEW ORLEANS, etc.
    No. 61204.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Morris Lee Javers, Jr. and Genevieve Cole applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 351 So.2d 247.

Writ denied.

TATE, DENNIS and CALOGERO, JJ., voted to grant.


author: DIXON, CÁLOGERO and DENNIS, JJ.

text:
    NORTH LOUISIANA PURE MILK PRODUCERS ASSOCIATION, INC. v. The SOUTHLAND CORPORATION.
    No. 61309.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: The Southland Corporation applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 352 So.2d 293.

Writ denied.

DIXON, CÁLOGERO and DENNIS, JJ.

are of the opinion the writ should be granted-


text:
    STATE of Louisiana v. Matthew HENDERSON.
    No. 61175.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Matthew Henderson, applying for writ of review. Parish of Orleans.

Granted in part. It is ordered that the petition be transmitted to the trial judge to rule on the complaint of the illegal sentence. In all other respects the petition is denied.


text:
    BAKER REALTY, INC., et al. v. Roland V. McKNEELY.
    No. 61313.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Roland V. McKneely, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 352 So.2d 263.

Writ denied.


text:
    Jacques J. CREPPEL et al. v. The PARISH OF JEFFERSON et al., (two cases).
    No. 61376.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: The Parish of Jefferson, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 352 So.2d 297.

Writ denied. Since the preliminary injunction does not require the governmental body to expend money on the projects it desires to abandon pending the determination of the issues presented here, we see no reason to grant writs to review this interlocutory order at this time.


text:
    STATE of Louisiana ex rel. Autry Lee JONES v. The Hon. Judge Luther F. COLE, Div. “G”, 19th Judicial District Court, Baton Rouge, Louisiana.
    No. 61083.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Autry Lee Jones applying for writ of mandamus. Parish of East Baton Rouge.

Denied. The District Judge advises that the applicant’s pre-trial conference will be held within the next 90 days.


text:
    STATE of Louisiana v. Hilliard STEWART.
    No. 61441.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: State of Louisiana through District Attorney, Ossie Brown, applying for Supervisory Writs. E. Baton Rouge Parish.

Denied.


text:
    John P. HOFFMAN et al. v. Roland V. McKNEELY.
    No. 61314.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re:. Roland V. McKneely, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana ex rel. Sammy Lee HAYES v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 61239.
    Supreme Court of Louisiana.
    Jan. 27, 1978.
   In re: Sammy Lee Hayes, applying for writ of habeas corpus. Parish of Ouachita.

Denied.


text:
    STATE of Louisiana ex rel. Willie NIX v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 61435.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Willie Nix applying for writ of certiorari. Parish of Tensas.

Writ denied.


text:
    STATE of Louisiana v. Percy L. BELL. STATE of Louisiana v. Charles B. BELL, Jr.
    No. 61444.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Percy L. Bell and Charles B. Bell, Jr. applying for writs of certiorari, supervisory writs and stay order. Iberville Parish.

Denied.


text:
    STATE of Louisiana v. Clarence SMITH, Jr. and Sterling Carey.
    No. 61450.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Clarence Smith, Jr. & Sterling Carey applying for writs of certiorari, prohibition, mandamus and stay order. Orleans Parish.

Writ denied.


text:
    Stanley DUNN v. STATE of Louisiana.
    No. 61427.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Stanley Dunn, applying for writs of habeas corpus, mandamus and prohibition. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Chester M. LEE v. Matthew S. BRANIFF, Judge, et al.
    No. 61417.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Chester M. Lee applying for writs of mandamus and prohibition. Parish of Orleans.

Writ denied.


text:
    Clifford LEWIS v. Elvin NICHOLS and New York Fire and Marine Underwriters, Incorporated.
    No. 61370.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Clifford Lewis applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Bernard HAMILTON.
    No. 61361.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Bernard Hamilton applying for writ of habeas corpus. Caddo Parish.

Denied.


text:
    STATE of Louisiana ex rel. Don B. PARKER v. Clyde MERRITT, Deputy Director, Orleans Indigent Defender Program.
    No. 61362.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Don B. Parker, applying for writs of certiorari and mandamus.

Writ denied.


text:
    STATE of Louisiana v. Danial GETTRIDGE.
    No. 61293.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Danial Gettridge applying for writ of habeas corpus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Jimmy Lee SCARBOROUGH.
    No. 61334.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Jimmy Lee Scarborough, applying for writs of certiorari and review. Parish of Natchitoches.

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 issued herein, directing the Honorable Richard B. Williams, Judge of the 10th Judicial District, Court for the Parish of Natchitoch-es, to transmit to the Supreme Court of Louisiana, on or before the 13th day of February, 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 fixed by this Court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Leo J. MULLER, Sr.
    No. 61348.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Leo J. Muller, Sr., applying for supervisory and remedial writs. Parish of Orleans.

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 issued herein, directing the Honorable Bernard J. Bagert, Sr. Judge of the Criminal District, Court for the Parish of Orleans, to transmit -to the Supreme Court of Louisiana, on or before the 13th day of February, 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, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Albertine MILLER v. Henry BROCK.
    No. 61368.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Albertine Miller applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. James. 352 So.2d 313.

Writ denied.


text:
    Carrell KILLEBREW v. ABBOTT LABORATORIES.
    No. 61338.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Carrell Killebrew applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 352 So.2d 332.

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:
    SHYLOCK, INC., d/b/a The Quarterdeck Restaurant v. COVENANT BROADCASTING CORP. of Louisiana d/b/a Radio Station WGSO and Thomas G. Fitzmorris a/k/a Mister Food.
    No. 61357.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Shylock, Inc., d/b/a The Quarterdeck Restaurant applying for certiorari, or writ of review,, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 352 So.2d 379.

Denied.


text:
    RACELAND STOCKYARDS, INC., et al. v. Vincent GIAISE.
    No. 61375.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Raceland Stockyards, Inc. et al. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 352 So.2d 392.

^rit denied,


text:
    MACK TRUCKS, INC. v. Harry M. EDGE, d/b/a Reliable Truck Service et al.
    No. 61379.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Mack Trucks, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 352 So.2d 709.

Denied.


text:
    Stevie BUTTS et al. v. INSURANCE CO. OF NORTH AMERICA.
    No. 61354.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Stevie Butts applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Catahoula. 352 So.2d 745.

Denied.


text:
    Milton LOYDEN, Sr., and Liza Loyden v. J. C. PENNEY COMPANY et al.
    No. 61349.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Milton Loyden, Sr. and Liza Loy-den applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 352 So.2d 755.

Denied. Result correct for reasons stated in concurring opinion.


text:
    Milton LOYDEN, Sr. and Liza Loyden v. J. C. PENNEY CO. et al.
    No. 61396.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: J. C. Penney Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 352 So.2d 755.

Denied. Result correct for reasons stated in concurrence and opinion.


text:
    Martha H. ROBICHEAUX and Martha’s Jewelry & Gifts, Inc. v. J. Arthur ROY, the New Gordon Hotel Co., Inc., and Eastern Development & Investment Corp. and Sandra Ballard.
    No. 61381.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Martha H. Robicheaux and Martha’s Jewelry & Gifts, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 352 So.2d 766.

Denied.


text:
    STATE of Louisiana v. Lionel FIELDS.
    No. 61358.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Lionel Fields applying for Remedí' al Writs. Orleans Parish.

Denied.


text:
    Patricia COOK et al. v. AAA WORLDWIDE TRAVEL AGENCY, a Division of American Automobile Association of Louisiana and Dynimex-Pacifix Tours, Inc.
    No. 61365.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Patricia Cook, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 352 So.2d 243.

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:
    Succession of Louis CAVALLINO.
    No. 61343.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: John R. Neyrey applying for writ of certiorari or review to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Denied.


text:
    STATE of Louisiana v. Henry A. REID, Jr.
    No. 61430.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: State of Louisiana through the Attorney General, William J. Guste,- Jr., applying for writs of certiorari, mandamus and prohibition and stay order. Parish of Calcasieu.

Denied.


text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. Maurice N. WESTRIDGE, Mainline Fleets and Fast Insurance Company.
    No. 61355.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Maurice Westridge applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana In the Interest of Robert A. SMITH.
    No. 61043.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Robert A. Smith applying for writs of certiorari, prohibition, mandamus and stay. Parish of East Baton Rouge.

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 Thomas B. Pugh, Judge of the Family Court, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 13th day of February, 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, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    John WALLACE v. PAN AM FIRE AND CASUALTY CO. et al. H. F. McMULLEN v. PAN AM FIRE AND CASUALTY CO. et al.
    No. 61350.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Wanda Petroleum Co. and Insurance Company of North America, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vernon. 352 So.2d 1048, 352 So.2d 1058.

Writ denied.

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


text:
    John WALLACE v. PAN AM FIRE AND CASUALTY CO. et al. H. F. McMULLEN v. PAN AM FIRE AND CASUALTY CO. et al.
    No. 61367.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: H. L. Hunt and The Fidelity and Casualty Co. of New York applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vernon. 352 So.2d 1048, 352 So.2d 1058.

Writ denied.

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


text:
    Edward L. ARDOYNO, Jr., William J. Mora, III and the Law Partnership known as Mora and Ardoyno v. Leonard S. UNGAR, Harris M. Dulitz, Stanley J. Jacobs, Kenneth W. Manuel, and James Robert Kyzar.
    No. 61333.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Leonard S. Ungar, et al. applying for certiorari, or writ of review, to the Court of Appeal,. Fourth Circuit. Parish of Orleans. 352 So.2d 320.

Denied.

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


text:
    Joyce Faciane Wife of/and John MARTIN v. SOUTHERN BAPTIST HOSPITAL et al.
    No. 61373.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Joyce Faciane wife of/and John Martin, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 352 So.2d 351.

Denied.

TATE, DIXON and DENNIS, JJ., would grant.


text:
    Willie WASHINGTON and Helen McGee v. DIXIE LEASING OF NEW ORLEANS, INC., Craig Coleman and Liberty Mutual Insurance Co.
    No. 61369.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Willie Washington and Helen McGee applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 352 So.2d 363.

Denied.

TATE, DIXON and CALOGERO, JJ., would grant.


text:
    Ronald GREEN v. LIBERTY MUTUAL INSURANCE COMPANY, Ray Pitre, Ray Valliant, George Isreal and Robert Sour.
    No. 61363.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Liberty Mutual Insurance Co., Ray Pitre, George Isreal and Robert Sour applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 352 So.2d 366.

Denied.

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


text:
    Anthony J. LIVACCARI, Jr. and Ronald L. Livaccari v. Frances D. DEMAREST, Recorder of Mortgage for the Parish of Orleans and Matthew J. Hill, Jr.
    No. 61356.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Matthew J. Hill, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 352 So.2d 792.

Denied.

DENNIS, J., is of the opinion the writ should be granted.


text:
    Louis LEGER, Jr. v. DELANO PLANTATION, INC., et al.
    No. 61366.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Louis Leger, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 352 So.2d 743.

Writ denied.

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


text:
    Carl E. YOUNGBLOOD v. Edward N. DETTENHEIM.
    No. 61322.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Edward N. Dettenheim, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Lincoln. 352 So.2d 265.

Denied. Judgment of the court of appeal is not final.

DENNIS, J., is of the opinion the writ should be granted.


text:
    The Succession of Andrew H. CAFFAREL, Sr.
    No. 61429.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Mrs. Irene C. Caff arel applying for writ of mandamus and stay order. Jefferson Parish.

Denied.

SUMMERS, J., would grant the writ.


author: TATE, J.

text:
    STATE of Louisiana v. Pat DAVIS.
    No. 61455.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
   In re: Pat Davis, applying for writs of certiorari, prohibition and mandamus. Parish of E. Baton Rouge.

Writ denied. •

TATE, J.

The defendant is entitled to full review of assignments of error as to adverse ruling on motions and objected to rulings. His remedy is to apply for supervisory relief as to his conviction and sentence pursuant to La. Supreme Court Rule 10, Section 5(a)(10) and 5(b) and to request a delay and stay from the trial court. I concur in the denial of the present application, which as I understand it is primarily based on its procedural inappropriateness and deficiencies and not on the merits.

DENNIS, J., concurs in denial of the writ for the reasons stated by Tate, J.