author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Jerry JOHNSON.
    No. 56065.
    Supremo Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      Peter J. Compagno, George M. Leppert, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

The grand jury for the Parish of Orleans indicted Jerry Johnson for aggravated rape of a sixteen-year-old girl. Johnson was tried, found guilty without capital punishment, and sentenced to serve the balance of his natural life at hard labor. He appeals.

As the trial occurred in 1972, it was then the practice to reserve bills of exceptions. Three bills are urged on this appeal and are argued in brief.

Some time after ten o’clock on the night of September 16, 1972 the victim was walking at the corner of Camp and Calhoun Streets in the city of New Orleans when Johnson approached her. He grabbed her and pulled a sweater cap over her head threatening her with a gun. He forced her into his Pontiac automobile and drove from the site of the abduction. En route he fired his gun to warn her not to disobey him and to quell her entreaty to remove the cap which was impairing her breathing. After riding for 35 or 40 minutes she was made to get out of the car. In doing so she felt faint and when her legs “started to give way” he threatened her again saying, “You better walk or you are dead.” He then forced her to accompany him to a heavily weeded area near the levee on Bayou St. John where he raped her.

As he was taking her back to his automobile, they were approached by two New Orleans police officers who were in the area responding to prowler complaints. While the officers were questioning Johnson, the' girl made motions indicating that she wished to speak to the police alone. When she was taken aside by one of the officers she told him what had happened.

Detectives were summoned by the police. Further investigation turned up a blanket in the bushes. In addition Johnson pointed out to the police where he had thrown the revolver. Five bullets and one spent casing were found in defendant’s pocket.

Johnson’s version of the incident was that the girl was hitchhiking at the corner of Broadway and St. Charles Avenue; that he picked her up; and she consented to the sexual intercourse.

Johnson is a black man. The victim is a white girl. Bill of Exceptions No. 3 was reserved during cross-examination of the victim by defense counsel. When, without further foundation or predicate, defense counsel asked her, “ . . . you don’t have any prejudices against black people do you?”, the State’s attorney objected that the question was irrelevant. The objection was sustained by the trial judge with the comment, “I don’t see the relevancy at this moment.”

Again, without foundation or predicate, in a continuation of the cross-examination, defense counsel asked and the witness responded :

“You have friends in Mobile?”
“Yes, sir.”
“Boys and girls?”
“Yes, sir.”
“Are they all of the same race?”

When the judge admonished defense counsel that he had just sustained an objection on the same subject, defense counsel argued that he was attempting to test the witness’ credibility. He was not permitted to pursue this line of questioning, and he reserved this bill to the rulings.

On this appeal, in brief, for the first time, the defense asserts by way of argument that the questions were designed to establish the bias or prejudice of the prosecuting witness against Negroes. If he had been permitfed to establish this fact, he argues, the inference would be clear that the victim’s bias and prejudice would never permit her to admit that she had consented to sexual intercourse with a Negro.

Credibility of a witness is attacked generally, by showing that his general reputation for truth or for moral character is bad, or it may be attacked only insofar as his credibility in the case on trial is concerned. La.R.S. 15:490.

Aside from the fact that this attack on the witness’ credibility was not based on an attempt to show her general reputation for truth, the relevancy of defense counsel’s line of questioning to the victim’s credibility was not shown by any foundation or predicate. La.R.S. 15:435. More properly, this was an attempt to impeach the witness as to a collateral fact which also is impermissible. La.R.S. 15 494. Therefore, the trial judge’s ruling was correct on the issue as then presented. In his discretion he ruled that defense counsel would not be permitted to raise broad references to the racial issue, for he believed the questioning was designed principally to prejudice the jury.

However, when the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show bias, interest or corruption, and unless he distinctly admits such fact, any other witness may be examined to establish same. La.R.S. 15 :492.

The ruling complained of did not prevent defense counsel from asking more specific questions to develop bias. And it is incompetent to raise the issue on appeal in brief for the first time that the defense was denied the right to question concerning bias or corruption.

The objection here was to the trial judge’s denial of improper questions to attack the witness’ credibility; there was no objection that defense counsel was denied the right to question concerning bias. Article 841 of the Code of Criminal Procedure in effect at the time of this trial required an objection-to a court ruling “at the time of occurrence." The identical requirement is contained in the 1974 amendment to that Article. In addition, the amended version further requires that the party complaining of an erroneous ruling make known to the court “his objections to the action of the court, and the grounds therefor.” The requirement that the ground for the objection be made known is implicit in the article before the amendment.

It will not do, therefore, for the defense to urge on appeal for the first time that he was not permitted to show bias when this was not the ground for his objection.

This bill is without merit.

Bill No. 4 was reserved to the refusal of the trial judge to grant a motion for continuance. It is alleged in the motion that defense counsel was not prepared for trial because he was only notified verbally on December 11 that the case would be tried on December 13 and he required additional time to prepare his defense.

Reference to the motion discloses that it was not verified by defendant or his counsel’s affidavit as required by Article 707 of the Code of Criminal Procedure.

Further, the allegation of the motion that, the defense was not prepared for trial because notice of the trial date was not received until two days befor trial is not well-founded. Johnson was indicted on October 5, 1972. Arraignment was held on October 10 at which time defense counsel appeared with the accused. An application for bill of particulars and motion for oyer were filed by defense counsel on October 30. These motions were heard on November 6. A motion to suppress was fixed for hearing on December 8. At that time the defense was informed that trial would be held on December 13. The hearing was continued to December 11.

Thus, it is apparent that defendant and his counsel had months to prepare for trial. This last minute motion for continuance on the day set for trial is, as the trial judge reasoned, a delaying tactic.

The record is barren of any showing of how more time to prepare for trial would have benefited the defense, or, conversely, how the defendant was prejudiced by not being granted the continuance his attorney sought to obtain for him on the day of trial. State v. Cousin, 307 So.2d 326 (La. 1975). There is, therefore, no merit to this bill.

A motion for a new trial based upon the denial of the motion for continuance was denied and Bill 5 was reserved. Since the issues in the two bills are identical, the reasons assigned in our consideration of Bill 4 apply equally to Bill 5.

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

      . The rape occurred on September 16, 1972, a time when the deatli penalty could not be imposed because of the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 decided on June 29, 1972. This was also prior to the 1973 enactment of Article 42 of the Criminal Code and Articles 814 and 817 of the Code of Criminal Procedure making the death penalty mandatory for the crime of aggravated rape.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. Robert Douglas EDWARDS.
    No. 54457.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      Louisiana State Bar Association, Committee on Professional Responsibility, A. Russell Roberts, Metairie, Chairman, Sam J. D’Amico, Baton Rouge, Wood Brown, III, New Orleans, Leonard Führer, Alexandria, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, Henry A. Politz, Shreveport, John F. Pugh, Thibo-daux, John B. Scofield, Lake Charles, Thomas O. Collins, Jr., New Orleans, for petitioner.
    Milton P. Masinter, Virgil M. Wheeler, Jr., New Orleans, for defendant-respondent.
   DISCIPLINARY PROCEEDINGS

MARCUS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, instituted this disciplinary proceeding against Robert Douglas Edwards, a member of said association. The Committee’s petition for disciplinary action is based upon respondent’s final conviction resulting from a plea of nolo contendere to the crime of knowingly receiving and concealing a stolen vehicle in violation of the National Motor Vehicle Theft Act, 18 U. S.C. § 2313.

On April 30, 1970, Robert Douglas Edwards was indicted in the United States District Court for the Eastern District of Louisiana, New Orleans Division, on three counts of violating the National Motor Vehicle Theft Act, 18 U.S.C. § 2313. At arraignment, a plea of not guilty was entered. Thereafter on September 3, 1971, Edwards entered a plea of nolo contendere to count one of the indictment which charged:

That on or about the 29th day of December, 1969, in the Eastern District of Louisiana, New Orleans Division, Robert Douglas Edwards, willfully and feloni-ously received and concealed a stolen motor vehicle, that is, a 1970 Chevrolet Pickup Truck VIN KE 140S136389, which was moving in interstate commerce from Picayune, state of Mississippi, to New Orleans, state of Louisiana, knowing the said motor vehicle to have been stolen; all in violation of Title 18 of the United States Code, Section 2313.

Following conviction resulting from his plea of nolo contendere, a presentence investigation was ordered, and on October 13, 1971, respondent was sentenced to imprisonment for a period of three years.

After respondent’s conviction had become final, the Committee on Professional Responsibility filed a petition in this court on February 19, 1974, seeking disciplinary action against respondent under the provisions of Article 15, section 8, paragraph (7) (a) through (d) of the Articles of Incorporation of the Louisiana State Bar Association. This petition followed a- determination by the Committee that the crime of which respondent had been convicted was final and was a “serious crime” involving a felony reflecting upon his moral fitness to practice law. Respondent filed an answer, together with exceptions of no cause or right of action, res judicata, prematurity and vagueness. After issue was joined by respondent’s answer, a Commissioner was appointed by this court. Respondent’s exceptions were overruled, and a hearing was conducted on March 3, 1975. At this hearing, respondent was afforded full and unrestricted opportunity to present any and all evidence of “mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted . . . .’’In the formal report of the Commissioner to this court, it is stated that the Commissioner found the offense for which respondent was convicted to be a felony under federal law involving moral turpitude and serious enough to warrant disciplinary action by this court “to whatever extent it may deem appropriate.” The Committee on Professional Responsibility filed its concurrence to the report of the Commissioner. Objection was filed by the respondent to the report of the Commissioner. The matter was then submitted to this court under our original jurisdiction for a determination of the appropriate disciplinary action to be taken, if any.

Respondent first attacks the Committee’s proceeding under Article 15, section 8 of the Articles of Incorporation of the Louisiana State Bar Association, as amended and effective September 1, 1971, for a crime committed prior to the adoption and effective date of said article. It is asserted that Article 15, section 8 makes a substantive change in the discipline and disbarment rules as compared to that which previously existed under Article 13, section 12 and furthermore Article 15 makes it mandatory that a minimum of five years must elapse following disbarment before the disbarred attorney may apply for reinstatement. Respondent contends that these substantive changes violate his rights under the federal and state constitutions. We find no merit to this contention. Clearly, Article 15, section 8, effective September 1, 1971, provides for the institution of disciplinary proceedings for the “conviction of a crime.” It is the date of conviction for the crime that is controlling. See Louisiana State Bar Ass’n v. Ponder, 263 La. 743, 269 So.2d 228 (1972). Therefore, since respondent was adjudged convicted of the offense of violating 18 U. S.C. § 2313 based upon his plea of nolo contendere on September 3, 1971, the Committee properly proceeded under Article 15, section 8, as amended and effective September 1, 1971. Therefore, the fact of “substantive change,” if any, is of no moment.

Secondly, respondent argues that the Committee erred in failing to comply with the procedure set forth in paragraphs (1)through (6) of section 8 of Article 15 prior to the institution of disciplinary proceedings. Specifically, he contends that the Committee must first file a written report with this court prior to instituting disciplinary proceedings. In Ponder, supra, we held that if the conviction of respondent is final at the time the Committee files its petition for disciplinary action, Article 15, section 8(7) of the Articles of Incorporation of 1971 properly applies. Hence, in view of respondent’s final conviction at the time the proceedings were instituted, the Committee correctly proceeded under Article 15, section 8, paragraph (7) (a) through (d) without first being required to comply with paragraphs (1) through (6) of said section and article.

We likewise reject respondent’s complaint that the failure of the Committee to institute disciplinary proceedings against other members of the Louisiana State Bar Association who have been convicted of crimes constitutes selective discrimination and violates respondent’s constitutional rights. This assertion has no relevancy or materiality to the issues here presented and is thus without merit.

Respondent next urges that since he has been pardoned by the Governor of the State of Louisiana, his full civil rights have been restored thereby removing any disability upon which a penalty may be imposed. A similar contention was rejected by this court in Ponder, in which we stated that “a pardon is not an absolute defense to disbarment . . .

Additionally, we reject respondent’s contention that a plea of nolo contendere may not be used as a “conviction” in these proceedings. It is argued that the inclusion of the nolo contendere plea of Article IS added a new dimension. First, as previously indicated, since respondent’s conviction resulting from his nolo contendere plea occurred on September 3, 1971, he is governed by Article IS, as amended and effective September 1, 1971, which permits institution of disciplinary proceedings in section 8(1) “[u]pon learning that an attorney has been convicted of a crime, whether the conviction results from a plea of guilty or nolo contendere or a verdict after trial . . . .” Secondly, nolo contendere pleas formed the basis of disciplinary proceedings under former Article 13, section 12 in prior cases. Louisiana State Bar Ass’n v. Connolly, 201 La. 342, 9 So.2d 582 (1942); Louisiana State Bar Ass’n v. Connolly, 206 La. 883, 20 So.2d 168 (1944); Louisiana State Bar Ass’n v. Steiner, 204 La. 1073, 16 So.2d 843 (1944); Louisiana State Bar Ass’n v. Rayl, 208 La. 531, 23 So.2d 206 (1945).

Finally, respondent argues that he offered sufficient evidence of mitigating circumstances to warrant the conclusion that disciplinary action is unnecessary.

At the hearing before the Commissioner, respondent presented evidence that in December, 1969, he had an interest in a sporting goods store in New Orleans known as Roland’s Sporting Goods, Inc. Respondent also had an interest in Hillcrest Subdivision located in Covington, Louisiana. The two trucks owned by the sporting goods company were in need of substantial repair or replacement. In late December, 1969, three men who were customers at Roland’s mentioned to the manager that they were leaving town and inquired whether he knew of anyone interested in purchasing some used trucks. The men were introduced to respondent. Discussions followed. The vehicles had 1969 Alabama license plates and Road and Bridge receipts, which respondent originally believed to be certificates of title. Serial numbers on the Road and Bridge receipts were examined and checked against those listed on the vehicles. Respondent contacted a friend who was an officer with the Louisiana State Police and requested him to determine whether or not the vehicles had been reported stolen. None of the vehicles were reported stolen at that time. Admittedly, the check was limited to an inquiry at the auto theft bureau in Baton Rouge and did not include a check through the national computer system.

Several days later, on December 29, 1969, respondent drafted and entered into certain agreements with the alleged owners of the vehicles. The agreements provided for the lease of the vehicles with options to purchase. Respondent was to pay $100 per month per vehicle for four months. Said payments were to be applied against the purchase price if the options were exercised. Respondent took possession and paid $400 on the first vehicle (count one of the indictment) on December 29, 1969; three other vehicles were delivered before January 11, 1970. A fifth truck was delivered around February 10, 1970. At first, the original truck was personally used by respondent, two were used at Roland’s, and the remaining two were used at the Hill-crest development in Covington. However, after delivery of the fifth truck, business began to decline and, accordingly, respondent requested that the alleged owners of the vehicles pick up the last four vehicles delivered. He decided to keep the original one for his personal use at Hillcrest. As a result, all vehicles ended up at Hillcrest around the middle of February, awaiting pick-up by the alleged owners. No one appeared. Rather, all five vehicles were impounded by law enforcement authorities during the first week of March, 1970. During the period of time that the trucks were in possession of respondent, four of them were covered by insurance. The 1970 Chevrolet truck, Serial Number KE 140S136389 (count one of the indictment), was insured on December 29, 1969; three other vehicles were insured on January 12, 1970. The named insured was listed as Calco, Inc., a corporation wholly owned by respondent.

Respondent contends that he did not know the vehicles were stolen until after they had been impounded (March). The most damaging testimony against him on this issue was that of Gerald Satterlee, president of Roland’s, who testified that he resigned from Roland’s on February 27, 1970 and information about the trucks being stolen was known to him, as well as to respondent, in January prior to his resignation. After the report of the Commissioner had been filed in this court, respondent sought a rehearing to clarify the record and findings of the Commissioner. The motion was denied on June 19, 197S. Respondent attaches to his brief filed in this court an affidavit of Satterlee, executed on September 19, 1975, in which he states that, since reading the transcript of his testimony before the Commissioner, he has reviewed the matter at length in his mind and knows as a fact that he did not have knowledge that the trucks were or might be stolen until about two weeks after his resignation as president of Roland’s on February 27, 1970 or in mid-March, 1970, and not in January as testified to by him at the hearing.

Respondent received a Bachelor of Science degree from Southeastern Louisiana University in Hammond and a Masters degree in biochemistry from Emory University. He was admitted to practice law in Louisiana after graduation from law school in 1959. He immediately engaged in the practice of law in Gretna, Louisiana, in partnership with a schoolmate, Charles Gaudin, until the latter was elected Judge of the Twenty-Fourth Judicial District Court in 1966. Respondent became an assistant district attorney in Jefferson Parish in 1969. He is married and the father of three children.

Respondent introduced the medical testimony of his treating physician showing that he was hospitalized during the early morning of April 30, 1970 (date of indictment) for a suspected heart attack. Major surgery was performed on May 15, 1970 which included a repair of a hiatus hernia. He remained in the hospital until the middle of July and was then confined to bed at home until the first week in September, 1970. Respondent continued to receive treatment for high blood pressure. In August, 1971, respondent was found to be suffering from pneumonia, elevated blood pressure, hypertension and was generally upset. Tranquilizers were prescribed by his physician. The wife of respondent has also been treated for an emotional state. The plea of nolo contendere was entered on September 3, 1971.

There was also testimony adduced at the hearing showing that respondent and his then counsel were not in agreement as to action to be followed in his defense. A letter was written to the Louisiana State Bar Association inquiring as to the implications of a nolo plea insofar as disciplinary action was concerned. No reply was received. Testimony was heard by the Commissioner indicating that respondent expected a suspended sentence and was surprised by the imposition of a three-year prison sentence. Judge Charles Gaudin testified as a character witness on respondent’s behalf. It was stipulated that five other named judges from Jefferson Parish would have testified similarly on respondent’s behalf. Also, several affidavits setting forth respondent’s good character were filed in the record.

After respondent’s indictment on April 30, 1970, he resigned from the district attorney’s office. Immediately after his conviction based on his nolo contendere plea and the imposition of sentence on October 13, 1971, respondent was suspended from the practice of law on October 27, 1971, by order of this court. This suspension remained in effect until the order was rescinded on March 1, 1973. Respondent began serving his prison sentence on November 13, 1971 and was released on October 16, 1972. Disbarment proceedings originally filed against respondent on November 10, 1971 were dismissed by the Louisiana State Bar Association without prejudice on May 29, 1973. The present proceedings were instituted on February 19, 1974. Respondent testified that he has had great difficulty supporting his family since the inception of this matter in 1970.

In conclusion, we agree with the findings of the Commissioner, concurred in by the Committee, that respondent has been convicted of a serious crime which reflects upon his moral fitness to practice law. After reviewing the evidence of mitigating circumstances as set forth above, we do not find that respondent should be disbarred. However, disciplinary action is certainly warranted. We consider suspension from the practice of law for a period of two years from the date of this decree as an appropriate penalty under the circumstances.

DECREE

For the reasons assigned, it is ordered, adjudged and decreed that Robert Douglas Edwards be suspended from the practice of law in Louisiana for a period of two years from the date of this decree. Respondent is to bear all costs of this proceeding.

      . 18 U.S.C. § 2313 deals with the sale or receipt of stolen vehicles and specifically provides :
      Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign conunerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

      . Article 15, section 8, paragraph (7) (a) through (d) of the Articles of Incorporation of the Louisiana State Bar Association provide :
      (7) After the conviction has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows:
      (a) The Committee will file a petition in the Supreme Court seeking disbarment or any other remedy that the Committee deems appropriate, and the petition will be served upon the respondent in the same manner as in ordinary proceedings.
      (b) When issue is joined by answer by the respondent, a Commissioner will be appointed by the Supreme Court to represent the Court in the same manner as in ordinary proceedings.
      (c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
      (d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.

      . La.Const. art. 7, § 10 (1921) ; La.Const. art. 5, § 5(B) (1974).

      . Former Article 13, section 12 of the Articles of Incorporation of the Louisiana State Bar Association provided:
      Whenever any member of the bar shall be convicted of a felony and such conviction shall be final, the Committee may present to the Supreme Court a certified or exemplified copy of the judgment of such conviction, and thereupon the court may, without further evidence, if in its opinion the case warrants such action, enter an order striking the name of the person so convicted from the roll of attorneys and can-celling his license to practice law in the State of Louisiana. .

      . Article 15, section S, paragraphs (1) through (6) provide:
      Section 8. Conviction of a Crime
      The following rules shall be applicable when a respondent has been convicted of a crime, to-wit:
      (1) Upon learning that an attorney has been convicted of a crime, whether the conviction results from a plea of guilty or nolo contendere or a verdict after trial, the Committee on Professional Responsibility may secure a certificate of such conviction from the applicable Clerk of Court.
      If the conviction is obtained in a Court of another state or a Federal Court, the Committee upon learning of the conviction, shall obtain two (2) copies of a certificate of conviction from the proper Court, and shall retain one (1) copy and may forward the other copy to the Supreme Court.
      (2) The Committee shall then make a determination whether or not the crime of which tlie attorney has been convicted constitutes a serious crime. The term ‘serious crime’ means a felony or any other crime, the necessary element of which as determined by the statute defining such crime, reflects upon the attorney’s moral fitness to practice law.
      It will be necessary for the Committee in determining whether or not the crime constitutes a ‘serious crime,’ to study the statute defining the crime, particularly if the crime involves the violation of a statute of the Federal Government or another state or jurisdiction.
      (3) Upon completing its determination as to whether or not the crime constitutes a ‘serious crime,’ the Committee shall file a written report with the Supreme Court, setting forth its findings and conclusions.
      (4) If the Supreme Court should concur with the opinion of the Committee that the crime on which the attorney has been convicted constitutes a serious crime, the Supreme Court may suspend the respondent from the practice of law and order the Committee to institute the necessary disciplinary proceedings, provided however, that the disciplinary proceedings so instituted will not, unless requested by the accused, be brought to a hearing until all appeals from the conviction are concluded.
      (5) If the Committee in its report to the Supreme Court lias concluded that the crime of which the attorney has been convicted is not a serious crime, or if the Supreme Court should determine independently that the crime is not a serious crime, the Supreme Court will refer the matter back to the Committee.
      (6) An attorney will be reinstated immediately on the reversal of his conviction for a serious crime that has resulted in his suspension, but the reinstatement will not terminate any disciplinary proceedings then pending against the attorney.


author: TATE, Justice. CALOGERO, J.,

text:
    Thomas A. NICOSIA, Plaintiff-Appellee-Relator, v. Michael GUILLORY, Defendant-Appellant-Respondent.
    No. 56303.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      David M. Smill, Harahan, for plaintiff-applicant.
    Richard J. Meunier, Meunier, Martin & Meunier, New Orleans, for defendant-respondent.
   TATE, Justice.

The plaintiff Nicosia was awarded $1,800 against the defendant Guillory for the total demolition of his truck caused by Guillory’s negligence. The court of appeal found that Guillory was an unemancipated minor at the time the suit was filed and personal service was made on him (even though a major and represented by counsel at the time of the trial). It therefore reversed and remanded, apparently to permit service and trial anew. 310 So.2d 141 (La.App. 4 Cir. 1975).

We granted certiorari, 313 So.2d 825 (1975), because we felt that our intermediate brethren were in error in holding that a judgment obtained under the present circumstances could be annulled because of the procedural incapacity of the minor to be sued in his own name at the time of suit.

1.

A minor (as well as his parent or tutor) is personally liable for damages caused by his negligence. La.Civil Code arts. 1785 (par. 5), 1874, 2227; Redd v. Bohannon, 166 So.2d 362 (La.App. 3d Cir. 1964). However, an unemancipated minor lacks the procedural capacity to sue or be sued except through his parent or tutor. La.C.Civ.P. arts. 683, 732. If such a minor is sued, and his parents are dead, divorced, or judicially separated and no tutor (then required) has been qualified for him, the court shall appoint an attorney to represent him. La.C.Civ.P. art. 732.

However, the exception to the minor’s procedural capacity is a dilatory objection, which is waived if not pleaded prior to answer or default. La.C.Civ.P. arts. 926(6), 928. The dilatory exception must be pleaded before answer or default, whether the minor is a plaintiff or a defendant to the principal or incidental action to which he is a party. La.C.Civ.P. arts. 855, 926(6), 928, 1034; Fraser v. Day, 307 So.2d 733 (La.1975).

2.

The present facts show :

The plaintiff Nicosia sued Guillory and his mother on November 17, 1971, alleging that Guillory’s negligence had destroyed the plaintiff’s truck on September 18, two months earlier. Guillory and his mother filed an answer through retained counsel on December 1, 1971.

Shortly thereafter, the plaintiff moved for trial on the merits. The trial (as well as a scheduled pre-trial conference) was continued on several occasions, being finally fixed for February 6, 1973. On the morning of the trial, the minor (by then a major), for the first time questioned his procedural capacity to be sued by filing an exception to this effect and praying that the suit be dismissed. The trial judge overruled it and (so far as the record shows) the trial commenced without further objection on the defendant’s part.

The trial court correctly held that the filing of the dilatory exception to procedural capacity, after the answer, was not timely, and thus the objection urged by it was waived. The Code of Civil Procedure expressly so provides. Articles 926 (6), 928. Likewise the objection (first urged on appeal by argument), questioning as insufficient the personal service on and the citation of the unemancipated minor, was waived by not filing such declinatory objections prior to appearance or answer. La.C.Civ.P. arts. 925(1), (2), 928.

In reaching the contrary result, the court of appeal reasoned that, since the plaintiff’s petition had itself pleaded the minority of the defendant Guillory (further alleging that his mother, sought to be held solidarily liable, see Footnote 1, was his mother and natural tutrix), the trial court had a duty to enforce the mandate of La. C.Civ.P. art. 732 that an attorney be appointed to represent an unemancipated minor of a dissolved marriage who is without tutor. Davis v. Bankston, 192 So.2d 614 (La.App. 3d Cir. 1966).

In Davis, however, as an essential basis of its holding, the court expressly held that an exception to procedural capacity was regarded as timely filed to the reconventional demand against the minor. In the present case, however, no exception to the procedural capacity was timely filed. The holding in such decision is thus inapposite to the present issue.

We are not here faced with a final judgment which might be annullable because rendered against an incompetent person who has not been represented by an attorney, such as a minor against whom a default has been rendered. La.C.Civ.P. art. 2002(1). Here, the minor was personally served and was represented at the trial by his retained counsel. His procedural capacity (incompetency) to be sued was waived by the answer filed on his behalf by his attorney, without objection to the minor’s lack of procedural capacity.

In fact, at the time of the trial, the defendant had become a major, so the judgment rendered against him was not even technically annullable as rendered “against an incompetent person not represented as required by law.” La.C.Civ.P. art. 2002(1).

Accordingly, the court of appeal erred in holding that the judgment obtained against Guillory must be set aside because Guillory was a minor at the time of suit. By failing to object timely to his lack of procedural capacity and by answering through retained counsel, Guillory waived his right to attack the judgment subsequently obtained following a trial at which he was represented by his counsel.

3.

The defendant Guillory contends, in the alternative, that the trial court abused its discretion by leaving the record open to take his testimony for the plaintiff to prove he (Guillory) was driving the truck when it was destroyed through its driver’s negligence.

It is doubtful that the trial court would have abused its discretion, if indeed it had (as the defendant contends) reopened the case after the plaintiff rested. La.C.Civ.P. arts. 1631, 1632. However, the record shows that, before the plaintiff closed his case, he called the defendant Guillory to testify under cross-examination.

Guillory had been present in the courtroom on the morning of the trial. However, he left so that he was unavailable, when called at the conclusion of the testimony of the plaintiff’s first witness.

The trial court clearly did not abuse its discretion in continuing the case to permit the plaintiff to subpoena the suddenly-absent Guillory in order to take his testimony.

The evidence also supports the finding of the trial court that the plaintiff’s truck was totally demolished due to Guillory’s negligent driving, when he lost control of the truck and it crashed into a pole and the side of a bridge. The award of $1,800 for the total loss of the truck is likewise established by the record.

Decree

For the reasons assigned, we reverse and set aside the court of appeal judgment, and we reinstate the trial court award. The defendant Guillory is to pay all costs of these proceedings.

Court of Appeal judgment reversed, and trial court judgment reinstated.

CALOGERO, J.,

dissents being of the view that the Court of Appeal’s opinion is correct.

      . After Guillory’s parents were divorced, his mother was awarded his custody. She had not been qualified as his tutrix, however. She was dismissed from the suit by the trial court. No appeal was taken from this action.

      . At the time of the tort and of the suit, Guillory was 18 years of age. At the time, La.Civil Code art. 37 provided that persons below twenty-one years of age were minors. However, by Act 98 of 1972 the article was amended so as to lower the age of majority to eighteen. Consequently, after the suit was filed and before trial (and before the exception was filed) Guillory had become a major.

      . Assuming the exception had been timely filed, a defendant is ordinarily given ten days to file answer after an exception is overruled. La.G.Civ.P. art. 1001. However, if a defendant proceeds to trial without objection even though he has not filed an answer, he waives his right to complain of the lack of an answer. Ducote v. Ducote, 183 La. 886, 166 So. 133 (1935) ; Henderson v. Hollingsworth, 158 La. 921, 105 So. 14 (1925) ; see Morris v. Williams, 88 So.2d 721 (La.App. 1st Cir. 1956). However, since we hold that the exception to procedural capacity filed after answer was not timely, we do not reach this issue.

      . Its holding was that the exception was replicatory in nature, and thus a pleading which might be urged by a plaintiff without timely formal pleading to the defendant’s answer. La.C.Civ.P. art. 852. The holding that no formal pleading of an exception to an incidental action is required by reason of Article 852—dicta insofar as the present suit—erroneously overlooks the change in the procedural law of Louisiana effected by Article 1034 of the 1900 Code of Civil Procedure, by which the defendants in incidental actions must plead in writing, Article 852, any exception to an incidental action in the same manner as those pleaded to a main demand. Official Revision Comment (b), Article 852; Official Revision Comment (a), Article 1034.


author: TATE, Justice.

text:
    LOUISIANA POWER & LIGHT COMPANY, Plaintiff-Appellant, v. LOUISIANA PUBLIC SERVICE COMMISSION, Defendant-Appellee, South Louisiana Electric Cooperative Association, Intervenor-Appellee.
    No. 56297.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.
    Andrew P. Carter, Eugene G. Taggart, Monroe & Lemann, New Orleans, for plaintiff-appellant.
    Marshall B. Brinkley, Gen. Counsel, La. Public Service Commission, Baton Rouge, for defendant-appellee.
    Stanwood R. Duval, Jr., Duval, Arce-neaux, Lewis & Funderburk, Houma, for intervenor-appellee, South La. Elec. Cooperative Assoc.
   TATE, Justice.

The plaintiff utility (“Louisiana Power”) sought judicial review of an order of the Louisiana Public Service Commission in the district court of the commission’s domicile. A competitor utility cooperative (“the Association”) intervened. Louisiana Power appeals directly to us from a district court judgment affirming the commission’s order. La.Const. of 1974, Art. 4, Section 21(E).

The factual context involves efforts of the two competing utilities to provide services to two adjacent properties along Hollywood Road in Terrebone Parish. Before the events here complained of, each of the utilities had overhead three-phase electric transmissions lines on opposite shoulders of Hollywood Road in the area of the two properties, which had been constructed several years earlier. Louisiana Power furnished electric service to lots east and west of the two properties concerned, while the Association furnished service to one (Pope-Toyota) of the latter properties. (The other was vacant, awaiting construction of a Holiday Inn.)

Before the Commission, the Association sought and obtained an order that Louisiana Power remove an electric transmission line recently constructed across the rear of the Holiday Inn property. (Line A.) Louisiana Power unsuccessfuly sought to prevent the Association from serving the adjacent Pope-Toyota property through a front-lot underground transmission line, which in 1972 had been constructed by the Association to replace a former overhead transmission line. (Line B.)

The district court affirmed the commission’s orders, which (1) ordered the removal of Line A and (2) denied Louisiana Power the relief sought by it with regard to Line B.

The ultimate issues with regard to Lines A and B involve an interpretation of La. R.S. 45:123, as amended by Act. 34 of 1970.

This rather complex and somewhat ambiguous statutory provision, set forth in full in the appendix to this opinion, was designed to regulate to some extent needless duplication of electric service utility facilities and, thus, the consequent greater cost of electricity to customers. Recently, we had occasion to resolve one of its ambiguities. South Louisiana Coop. Association v. Louisiana Public Service Commission, 309 So.2d 287 (La.1975).

As clarified by that decision, we agree with the Commission’s interpretation of that statute, relevant to the present dispute, as providing:

After the 1970 effective date of the statute, no utility shall extend electric service facilities or furnish electric service to any point of actual meter location (“point of connection”) which is within three hundred feet of the electric transmission line of another utility, without the consent of the latter. However, any utility may extend service to unserved points within three hundred feet of its own electric lines in existence on April 1, 1970, or within three hundred feet of electric lines of other utilities not in existence on such date. Further, any line constructed for the principal purpose of pre-empting territory, rather than of furnishing service, is not entitled to recognition as a utility service line, at least for the purposes of the act.

Reverting to the present facts: The two properties involved were within three hundred feet of lines of both competing utilities which were in existence on April 1, 1970. Therefore, either of the present two competing utilities, at the customer’s choice, was entitled to furnish electricity to such properties.

With regard to the ultimate issues concerning Lines A and B, we find no reason to reverse the Commission’s factual and legal conclusions.

With regard to Line A, the evidence supports the Commission’s finding that it was built without utilityservice justification merely in an attempt to secure preemptive advantage:

It was built in a half-day, at minimal cost (and can be removed at minimal cost). It does not serve any actual or contracted customer. It has only a single-phase transmission line; whereas at least three-phase service is required for the contemplated Holiday Inn on the property on which the line is built and deadends (on a right of way secured from a previous developer, not from Holiday Inn.) Its apparent purpose was only to supply a cosmetic but non-functional attraction to Louisiana Power’s contemplated bid to Holiday Inn to furnish electric service to it.

Under these circumstances, we do not believe that the Commission’s order to Louisiana Power — to remove this nonfunctional and merely preemptive line — exceeded its constitutionally conferred regulatory powers. The order reasonably effectuated the legislative policy disfavoring needless duplication of electric transmission lines, represented by La.R.S. 45:123 (1970).

With regard to Line B, we find no factual or legal error in the Commission’s finding that the replacement by the Association of an existing pre-1970 overground line by the 1972 underground line did not come within the prohibitory intent of such statute. It was not the construction of a new line into territory already served by the competing utility.

For the reasons assigned, we therefore affirm the judgment of the district court, which affirmed the Commission’s orders.

Affirmed.

Appendix

La.R.S. 45: 123, as amended by act 34 of 1970, provides (italics supplied):

No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located within 300 feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility; provided, however, that nothing contained herein shall preclude (a) any electric public utility from extending service to an applicant for service at an unserved point of connection located within 300 feet of an existing electric line of such electric public utility, unless (i) such line was not in operation on April 1, 1970 and (ii) the point of connection is located within 300 feet of an existing electric line, of another electric public utility, which line was in operation on said date, or (b) any electric public utility from extending service to its own property, or to another electric public utility for resale; and provided further that any consumer who feels aggrieved with the electric service being received by him may apply to the Louisiana Public Service Commission for an order directed to his present supplier to show cause why the consumer should not be released from said supplier, and if the commission shall find that the service rendered to such consumer is inadequate and will not be rendered adequate within a reasonable time the release shall be granted.
As used in this section, an ‘electric line’ is a line constructed and operated for the transmission and/or distribution of electricity and which was not originally constructed for the principal purpose of preempting territory.
The provisions of this section shall not apply to municipally-owned or operated utilities of the State of Louisiana or to the parish of Orleans. Nothing in R.S. 45:121, 45:123, 45:1161, 45:1175 or R.S. 12:426 shall alter the rights or authority of municipalities with respect to franchises.

      . The line was constructed in March, 1974. The Association’s petition with the Commission to remove it was filed in April, 1974.

      . By reconventional demand to the Association’s petition (see Footnote 1), filed in May, 1974.

      .See the italicized second paragraph of the statute set forth in the appendix.


text:
    STATE of Louisiana, Appellee, v. Stanley ZENO, Appellant.
    No. 56258.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      Peter C. Piccione, Sr., Peter C. Piccione Law Offices, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Byron P. Legendre, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Zeno was convicted of second degree murder, La.R.S. 14:30.1 (1973), and sentenced to life imprisonment. On his appeal, the defendant relies upon thirteen assignments of error.

The assignments are governed by clearly applicable principle and present no reversible error:

Assignment 1: The effective exclusion of women under then-valid state law, declared unconstitutional by Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692 (1973), does not retroactively affect the validity of the present jury, which was em-panelled prior to the Taylor decision. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); State v. Rester, 309 So.2d 321 (La.1975).

Assignment 2: The defendant did not bear his burden of proving that he lacked the mental capacity to proceed with the trial. La.C.Cr.P. art. 647; State v. Marks, 252 La. 277, 211 So.2d 261 (1968). Cf., State v. Flores, 315 So.2d 772 (La. 1975).

Assignment 3: The indigent defendant cites no authority to justify the issuance to him without charge of a daily transcript of the testimony, nor does he show any prejudice to have resulted to him from the failure to accord him this luxury service. In short, no showing is made that the refusal to afford the accused a daily transcript denied him an adequate opportunity to present his defense at the trial. Cf., Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).

Assignment 4: No showing is made that the trial court abused its discretion in determining that the witness Huval was an expert who was competent to give his opinion in the field of firearms identification. La.R.S. 15:466; State v. Thorson, 302 So.2d 578 (La.1974).

Assignment 5: No basis whatsoever is shown by the record for finding the predicate insufficient to establish that inculpatory evidence was the product of a lawful search and seizure, and that a statement by the accused was voluntary. Hence, they were properly admitted into evidence before the jury.

Assignment 6: The prosecuting witness admitted that she had made certain statements at the preliminary examination which were inconsistent with her trial testimony. Having done so, the prior inconsistent statements were not independently admissible. No foundation was laid for introduction of any other statement in the preliminary examination by questioning the witness as to her having made it. Thus, the trial court correctly denied the defendant’s attempt to introduce for purposes of impeachment the entire record of the preliminary examination into evidence at the trial. See La.R.S. 15:493.

Assignment 7: No abuse is shown of the trial court’s discretion in admitting into evidence certain photographs, over the defendant’s objection that they were cumulative and might be inflammatory. State v. Rester, 309 So.2d 321 (La.1975).

Assignment 8: Following the present offense, the accused was interrogated and gave statements for which the requisite predicate of voluntariness was met. In the course of this statement, he admitted to having voiced a threat, on an occasion prior to the present offense, to kill anyone who slapped him. The statement is not shown to be irrelevant to the present prosecution nor inadmissible for any other cause. State v. Hayes, 162 La. 310, 110 So. 486 (1926), upon which the defendant relies, merely held that incriminating statements could not be admitted without a prior showing of their voluntariness. This requirement was here met by the predicate satisfactorily showing volun-tariness of the statements made at the time of the present interrogation.

Assignment 9: The trial court continued the trial to the conference room of a hospital to permit the jury to hear the testimony of a witness there hospitalized. No prejudice to the defendant is shown. No abuse is shown of the trial court’s discretion to do so in order to hear the testimony of a witness too incapacitated to attend the trial in the parish courthouse. La.C.Cr.P. art. 762(1).

Assignment 10: The defendant contends that the prosecutor made an improper statement in rebuttal argument. The record does not indicate that any objection was made at the time. The defendant’s failure to object to the comments at the time waives his right to complain on appeal that the argument was improper. La.C.Cr.P. art. 841; State v. Morris, 261 La. 1069, 262 So.2d 324 (1972).

Assignment 11: The minutes reflect that the motions for a new trial and for arrest of judgment were tried on December 16 and denied. The record does not reflect that, at the time, the defendant requested the opportunity to make any other showing than the motions themselves, which principally re-urge as error the contentions previously noted. No basis is shown for the defendant’s contention that he did not receive the hearing on these motions required by La.C.Cr.P. arts. 852, 860.

Assignment 12: The defendant contends that the prosecutor’s notice of intent to introduce inculpatory statements, delivered to him shortly before the trial, was inadequate compliance with the requirement of La.C.Cr.P. art. 768. The record does not reflect that the defendant objected on that ground to introduction of any inculpatory statements introduced, nor that he objected at the trial to the insufficiency of the notice. The post-trial objection is untimely and waived any right to rely on appeal on the alleged deficiency. La.C.Cr.P. art. 941. See State v. Sneed, 316 So.2d 372 (La.1975) for full discussion of requirements of the notice and of the circumstances of non-prejudice and lack of objection where the notice’s technical insufficiency presents no reversible error.

Assignment 13: This assignment was first made in brief to this court. It was not assigned as error in the trial court, La.C.Cr.P. art. 844 (1974), and therefore cannot be considered on appeal, La.C.Cr.P. art. 920 (1974). (On its merits, it questions the sufficiency of the evidence, as well as the trial jury’s failure to accord weight to testimony supporting an alibi. The assignment is not substantial.)

Decree

binding no error, we affirm the conviction and sentence.

Affirmed.

      . In the trial court, the defendant assigned twelve errors to be urged on appeal. La.C. Cr.P. art. 844 (1974). In brief in this court, they are rearranged. For convenience, we will discuss them as numbered in the brief.


text:
    Mrs. Beverly H. TOWNSEND v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al.
    No. 56247.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Rehearing Denied Dec. 5, 1975.

      William E. Syke, Alexandria, for plaintiff-applicant.
    John F. Simon, Gold, Hall, Hammill & Little, Alexandria, for La. Paving Co., Inc.
    William J. Doran, Jr., Sp. Asst, to Gen. Counsel, La. Dept, of Highways and Philip K. Jones, Norman L. Sisson, Robert J. Jones, Doran & Kivett, Baton Rouge, for Dept, of Highways.
    Howard N. Nugent, Jr., Ford & Nugent, Alexandria, for City of Alexandria.
   MARCUS, Justice.

Mrs. Beverly H. Townsend, as natural tutrix of her minor son, Rory- I. Vander-lick, instituted this suit to recover damages for personal injuries sustained by her son when he fell from his bicycle while riding on Jackson Street Extension in the City of Alexandria, Louisiana. Defendants are the State of Louisiana, through the Department of Highways, Louisiana Paving Company, Inc., and the City of Alexandria. The trial court rendered judgment for defendants, rejecting plaintiff’s demands. On appeal, the judgment was affirmed. 309 So.2d 887 (La.App. 3rd Cir. 1975). Upon plaintiff’s application, we granted certiorari. 313 So.2d 600 (La.1975).

FACTS

The accident occurred at 4:30 in the afternoon on July 31, 1972 on Jackson Street Extension which is a concrete 4-lane street 47 feet wide. Drainage catch basins are located at various points on that street adjacent to the curbs. At the time of the accident, Rory Vanderlick, age 14, was riding his bicycle on the right-hand side of said roadway in the same direction as traffic. His friend, Julie Betar, was riding another bicycle immediately behind him. They were returning from getting a sno-cone. The weather was clear and dry. When Rory rode over one of these drainage catch basins in the street, he suddenly fell or was thrown forward over the front of his bicycle and sustained injuries which form the basis of this suit.

The drainage catch basin at the site of the accident consisted of a rectangular-shaped concrete opening 4 feet long and 12 inches wide, which opening was covered with a cast iron grate. The grate fit into the opening and created a surface level with the street. The grate was 10% inches wide. Thus, the width of the grate was 1% inches narrower than the width of the concrete opening. There was nothing to hold the grate rigidly in place over the concrete opening; therefore, it could move a maximum of 1% inches toward or away from the curb. If it moved as far as possible toward the curb, it would leave a space between the edge of the grate and the rim of the concrete opening on the street side of as much as U/s inches. Actual measurements taken at the particular catch basin located at the site of the accident indicated that, while the concrete opening was 12 inches wide at one end, it was 1214 inches wide at the other end. If the grate on that basin had moved as far as possible toward the curb, it is conceivable that the space between the edge of the grate and the rim of the concrete opening on the street side would be as much as ly inches at one point. The grate had a total of 20 openings. Each of these slots was rectangular in shape and was \]/¡, inches wide and about 11 inches long. The slots ran lengthwise on the grate, parallel to each other, and about an inch apart.

Rory was riding a Kabuki 10-speed bicycle. The tires on this foreign-made racing bicycle were small and narrow. They are less than U/$ inches wide and would easily drop into any one of the slots or spaces in the catch basin grate. If the wheel of Rory’s bicycle dropped into one of the slots in the grate, the wheel would sink only a few inches below the surface of the street because each slot was only 11 inches wide and separated by iron crossbars. However, if the wheel dropped into the space between the edge of the grate and the rim of the opening on the street side, the wheel conceivably could sink down to its hub because that opening ran the full length of the catch basin.

PLAINTIFF’S CONTENTIONS

Plaintiff contends that the grate had shifted as far as it would go toward the curb, leaving a space iy inches between the edge of the grate and the rim of the concrete opening on the street side and that the front wheel of her son’s bicycle fell into that space. Negligence is alleged on the part of the Highway Department in its design of the grate which could move and leave an opening that was dangerous to bicycle riders; on the part of Louisiana Paving Company in failing to construct the catch basin in accordance with the plans and specifications of the Highway Department; and also on the part of the City of Alexandria for failing to maintain the street in a safe condition.

ISSUES

The issues to be resolved in this litigation are: (1) whether the negligence, if any, of any of the named defendants was a proximate cause of the accident; and (2) if so, whether the negligence, if any, of Rory Vanderlick was a proximate cause of the accident thereby barring plaintiff’s claim for recovery by her son’s contributory negligence regardless of any fault on the part of defendants.

I.

We will assume for the sake of argument that defendants were negligent in contributing to the creation of a dangerous condition to bicycle riders caused by the existence of an opening ly inches wide and 4 feet long between the edge of the grate and the rim of the concrete opening on the street side into which a bicycle wheel could fall. We make this assumption of negligence in order that we might first address ourselves to the issue of causation.

It is well settled that the plaintiff has the burden of proving causation by a preponderance of the evidence. It is only necessary that the evidence show that it is more probable than not that the harm was caused by the tortious conduct of the defendant. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Perkins v. Texas & New Orleans Railroad Company, 243 La. 829, 147 So.2d 646 (1962). This burden of proof may be satisfied by direct or circumstantial evidence. Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (La.1973); Jordan v. Travelers Insurance Company, supra; Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963). It suffices if the circumstantial evidence excludes other reasonable hypotheses only with a fair amount of certainty so that it is more probable than not that the harm was caused by the tortious conduct of the defendant. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972), on rehearing.

Rory and his companion were riding their bicycles at a relatively fast„ speed as they approached the catch basin. Rory stated they were riding “a little above medium” speed, and they “were not going slow.” Julie stated that they “were going fast,” and she estimated their speed at about IS to 20 miles per hour. Rory does not remember anything about the accident and was unable to state whether he ran his bicycle over the grate, or whether the catch basin or grate had anything to do with his mishap. Julie was also unable to state how the accident occurred. She stated: “I just saw Rory flip over his bike, that’s all,” and that she does not know “whether he ran over the drain grate, whether he ran over a hole, or what happened.” She also stated that Rory’s bike fell on the street near the catch basin, that “the bike did fall down” and that “I don’t remember if it fell . . . exactly on the grate or anything.” Both Rory and Julie testified that the traffic was heavy at the time. According to Rory, he did not recall whether or not he had applied his brakes on the date of the accident. He stated that normally he rides his bicycle with his hands on the middle of the handlebars, not on the curved portion where the handles and the braking mechanism are located. He admitted that holding his hands in this position would require him to move them in order to apply his brakes. Rory also testified that, although he was supposed to wear glasses (his license to drive being so restricted), he did not have his glasses on at the time of the accident. Rory’s mother testified that she rode a bicycle over this grate several weeks after the accident and that the tire, similar to that of Rory’s bicycle, did not stick in the grate portion because of the iron crossbars. However, she testified that the riding over these bars was “bumpy.” Likewise, the photographs in the record clearly indicate that the tire of the bicycle wheel would fit through the openings in the grate up to the wheel rim.

In the present case, plaintiff has failed to sustain the burden of proving causation by a preponderance of the evidence. Neither of the eyewitnesses, Julie nor Rory, could testify that Rory’s wheel did in fact fall or get caught in the opening between the edge of the grate and the rim of the concrete opening. While this is a possible cause of the accident under the circumstances, it is just as possible that the accident was caused by the “bumping” created by the tires going in and out of the openings on the grate, coupled with the fast speed of the bicycle. Other evidence that lends support to this latter possibility is the fact that Rory would have had to move his hands in order to apply his brakes. Likewise, any sudden braking under these circumstances would have contributed to his losing control. Therefore, any one of these possibilities might have caused Rory to fall from his bicycle. Since the circumstantial proof does not exclude the other reasonable hypotheses with a fair amount of certainty, we are unable to conclude that it is more probable than not that the accident was caused by the wheel of Rory’s bicycle falling into the opening between the edge of the grate and rim of the concrete opening.

CONCLUSION

Having found that plaintiff failed to prove causation, we need not decide whether any of the named defendants were negligent nor do we reach the issue of Rory’s possible contributory negligence. Accordingly, we conclude that plaintiff’s suit was properly dismissed by the courts below.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

DIXON and CALOGERO, JJ., dissent.


author: MARCUS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Edward GIBSON.
    No. 56388.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Dissenting Opinion Nov. 18, 1975.
    Rehearing Denied Oct. 31, 1975.
    Murphy W. Bell, Director, Fred A. Blanche, III, Trial Attorney, Roland T. Huson, III, Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., John W. Sinquefield, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Edward Gibson was charged by bill of information with the distribution of heroin in violation of La.R.S. 40:966(A). After trial by jury, on November 4, 1974, defendant was found guilty. Polling of the jury revealed nine jurors in favor of the verdict and three in opposition to it. Subsequently, defendant was sentenced to serve ten years at hard labor. On appeal, defendant relies upon four assignments of error for reversal of his conviction and sentence. Finding reversible error in the denial of defendant’s motion for a continuance (Assignment of Error No. 2), we need not consider the other assigned errors.

On May 16, 1973, an undercover agent for the Baton Rouge Police Department, Officer Charles Spillers, arranged, through an informer, for the purchase of four papers of heroin from Edward Gibson. On the same date, the informer handed Gibson $60.00 in the presence of Spillers. Gibson left, but returned in a few minutes and handed the four papers of heroin to the informer, who then turned it over to Spillers. The substance was determined to be heroin by the crime lab. Defendant was subsequently arrested and charged with distribution of heroin.

Originally, the bill of information and bill of particulars furnished by the state set out that defendant distributed heroin to Charles Spillers of- the Baton Rouge City Police Department. The transcript of a hearing on various motions held on October 7, 1974 reveals that both the state and defendant were under the impression at that time that the charge involved the distribution of heroin by defendant to Officer Spillers. After reviewing the police report, Spillers realized it was in error in designating him as the party, rather than the confidential informer, who handed the money to Gibson and to whom Gibson distributed the heroin. He reported the error to the district attorney; however, no action was taken by the state until Thursday, October 31, 1974 (the next day, Friday, was a legal holiday, and trial was set for Monday, November 4, 1974), at which time, the state amended the bill of information by deleting “to C. Spillers, a Baton Rouge City Police Officer,” and a similar recital was likewise deleted by an amendment to the bill of particulars. There is an indication in the record that the state informed defense counsel on Monday before the Thursday amendments that this change would be made, but the state did not disclose any information concerning the informer. It was the state’s position that it was not required to furnish defendant the names of witnesses prior to trial. In fairness to the state, it is evident from the record that Spillers and the state only knew the informer as Bickham or Bigman with the nickname of “Duke.” His exact name and address were unknown to them. The record also reveals that the state attempted to locate the informer on Thursday before trial; however, the .party making the search did not know the informer’s nickname nor did he check the city police informer files where the informer’s name and address might have been listed.

Defendant filed a motion for continuance on the morning of trial, Monday, November 4, 1974, asserting that, because of the amendment to the information and change in the particulars, it was necessary for defendant to have time to find out the name and whereabouts of the confidential informer to whom the sale was allegedly made in order to properly prepare his defense. After hearing, this motion was denied.

According to the provisions of article 489 of the Louisiana Code of Criminal Procedure:

If it is shown, on motion of the defendant] that the defendant has been prejudiced in his defense on the merits by the defect, imperfection, omission, uncertainty, or variance, with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. If it becomes necessary to discharge the original jury from further consideration of the case, the trial before a new jury will not constitute double jeopardy.

The purpose of the continuance, as authorized by this statute, is to protect a defendant from surprise or prejudice which may result from such amendment. Defendant must show in what respect his defense is prejudiced by the change. State v. Hubbard, 279 So.2d 177 (La.1973).

Up until Thursday before trial on Monday, or no earlier than the Monday before the trial date, defendant was prepared to defend against a charge, the proof of which was restricted to the sale of heroin to Officer Charles Spillers, as the state is limited in its proof to the facts recited in its bill of particulars. However, by the amendment to the bill of particulars, the limitation of proof was removed. As a result of this amendment, and considering the amendment to the bill of information, defendant was confronted for the first time with a charge by the state of distribution to someone other than Officer Spill-ers. Consequently, the name and location of the person to whom the sale was allegedly made by defendant became crucial in the preparation of his defense.

The circumstances of the case demonstrates that the identity and possible testimony of the informer were highly relevant and material and might have been helpful to the defense. Defendant’s opportunity to cross-examine Officer Spillers was hardly a substitute for an opportunity to examine the man who allegedly took part in the transaction. The informer’s testimony might have thrown doubt upon defendant’s identity or the identity of the substance allegedly distributed. Moreover, defendant took the stand in his own behalf and denied making the sale to the said informer or to anyone. The informer might have corroborated his testimony. Officer Spill-ers admitted that he did not consider the information would make a good witness for the state because he was an addict and had been involved in “other things.” He also expressed a view as to the possibility that the informer might “turn us around” if he testified or refused to testify. Whatever reason the state had for not calling the informer as its witness was within its prerogative; however, the accused had a right to make his own decision in this regard after having sufficient time in which to locate and interview the informer in the preparation of his defense. The action by the state in amending the bill of information and bill of particulars four days before trial and the denial of a continuance effectively denied the accused this opportunity. Under these circumstances, we conclude that defendant was prejudiced in the preparation of his defense. Hence, the trial judge committed reversible error when he denied defendant’s motion for a continuance in this case.

DECREE

For the reasons assigned, the conviction and sentence are reversed and set aside; the cause is remanded for a new trial.

SUMMERS, Justice

(dissenting).

It is elementary that the granting or refusal of a continuance rests in the sound discretion of the trial judge, and his ruling will not be disturbed in the absence of an arbitrary or unreasonable abuse of discretion. La.Code Crim.Proc. art. 712; State v. Williams, 262 La. 317, 263 So.2d 306 (1972); State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971). Not many legal propositions have received such widespread recognition in the law.

Article 489 of the Code of Criminal Procedure, while authorizing a continuance when an amendment to an indictment is allowed, requires that the defense be prejudiced by the amendment in order to be entitled to the continuance. La.Code Crim. Proc. art. 921. To determine prejudice, the court is directed to “consider all the circumstances of the case and the entire course of the prosecution.” La.Code Crim.Proc. art. 489. In my view the trial judge is in a much better position to make this determination than is this Court on the basis of a cold record; that is why he is entitled to broad discretion in this matter. Moreover, inasmuch as Article 488 permits amendments to indictments even during trial when a variance occurs between the proof and the allegation of the indictment, this indictment could have been legitimately amended during the trial.

Another factor the Court has failed to consider, which undoubtedly influenced the ruling of the trial judge, is the fact that the name of the person to whom the heroin was sold was not an allegation which was either essential or necessary to the validity of the indictment. Spiller’s name was unnecessary and, by the authority of Article 486, could be disregarded as surplusage. State v. Hubbard, 279 So.2d 177 (La.1973).

On October 31, 1974 before the November 4, 1974 trial, defense counsel was advised of the State’s intention to amend the indictment to delete Officer Spiller’s name. At that time the bill was so amended. Yet defense counsel made no motion for a continuance until the day of the trial. Even then, no evidence was produced to support the claim that preparation of the defense would be affected by the change. There was, therefore, no evidence to support this Court’s highly speculative statement that “The informer’s testimony might have thrown doubt upon defendant’s identity or the identity of the substance allegedly distributed.” This highly speculative statement disregards the fact that the “identity” of the “substance” was proven by the laboratory analysis of an expert and stipulated to be heroin by the defense.

The informer “Duke”, whom Gibson had known for a long time, was not shown to be unavailable.

The motion for continuance was couched in vague and indefinite terms and fails entirely to allege “specifically the grounds upon which it is based”. La.Code Crim. Proc. art. 707. The only allegation of the motion for continuance which could be considered specific referred to the need to obtain information to test the credibility of the confidential informer “should he be called to testify.” Failure to grant a continuance based upon this allegation could not possibly have prejudiced the defendant because the issue it presents was rendered moot when the confidential informer was not called to testify and defense counsel was informed to this ef.fect by the prosecution at the hearing for the continuance. No conceivable prejudice resulted from the denial of the continuance. La.Code Crim. Proc. art. 921.

Defense counsel has not correctly prepared a bill of exception or assignment of errors by a written assignment of errors as Article 845 of the Code of Criminal Procedure requires. For this reason, the issue upon which this reversal is based should not be considered on this appeal. See also La.Code Crim.Proc. arts. 844, 920.

Under these circumstances it is unrealistic and irrational to hold that deleting Officer Spiller’s name had the effect of depriving the defense of an opportunity to properly defend. Especially is this true when defendant had been represented by counsel at least since July 1974. There was ample time for a complete and independent investigation of the facts by the defense.

By this decision reversing the conviction, this Court has unduly restricted the latitude the law contemplates the trial judge should have in granting or denying continuances, an important and necessary phase of the authority he requires for the conduct of criminal trials.

This defendant, a convicted burglar who had served a term in the State Penitentiary, was, during May 1974, when he sold the four papers of heroin, employed in the Headstart program working in recreation and social services with youthful offenders. In this capacity, when he discovered the undercover status of Officer Spiller, instead of cooperating with law enforcement, he disclosed this information to a number of his acquaintances thus impairing Officer Spiller’s effectiveness and alerting possible narcotic offenders.

I would uphold the trial judge and would not reverse this conviction.

      . The bill of information charged distribution of heroin “to O. Spillers, a Baton Rouge City Police Officer.” The bill of particulars furnished by the state recited that the heroin was sold “to Charles Spillers of the Baton Rouge City Police Department.”

      . See footnote 1.

      . State v. Glover, 304 So.2d 348 (La.1974) ; State v. Heymann, 256 La. 18, 235 So.2d 78 (1970) ; State v. Bonfanti, 254 La. 877, 227 So.2d 916 (1969) ; State v. Mann, 250 La. 1086, 202 So.2d 259 (1967).


text:
    Barbara PRIMEAUX, Piaintiff-Appellant-Relatrix, v. Gerald David LIBERSAT, Sr., Defendant-Appellee-Respondent.
    No. 56093.
    Supreme Court of Louisiana.
    Nov. 4, 1975.

      J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for plaintiff-applicant.
    Roger C. Edwards, Abbeville, for defendant-respondent.
   TATE, Justice.

The issue before us concerns whether certain shares of stock issued to a husband in 1961, 1962, and 1966, during a marriage, are his separate property or, instead, form part of the community which existed between himself and his divorced wife. The issue arises in a suit by the wife, Barbara, filed after the judicial separation, in order to partition the property acquired during the marriage. Gerald and Barbara Liber-sat were married in 1960 and judicially separated in 1973.

The trial court held that the stock shares were the separate property of the husband, Gerald, since the consideration for them was paid, not by community funds, but instead by Gerald’s father, with the intention of donating to his son these shares in two family-held corporations. The court of appeal reversed this determination. 307 So.2d 740 (La.App. 3d Cir. 1975). It held that none of the stock certificates had been validly transferred to the son, Gerald, for reasons to be noted. The intermediate court held that, since Gerald was not the legal owner of these stock certificates, they were neither his separate property nor the assets of the community formerly existing between him and his former wife, Barbara.

We granted certiorari, La., 310 So.2d 847 (1975), to determine:

I. Is Gerald Libersat the legal owner of the certificates of stock shares at issue?

II. If so, do the shares of stock represented by the stock certificates, issued to him during the community, form part of the community estate or instead, as a donation to him by his father, are they his separate property ?

I. Is Gerald Libersat the legal owner of the shares of stock?

The shares of stock are in two corporations formed in 1961 by Gerald’s father, Murphy Libersat, when he incorporated two self-owned businesses. Murphy furnished all the consideration for the shares of stock initially issued, and no issue exists as to him furnishing valid consideration for them.

At the time of the trial, Gerald was the owner of record of six stock certificates representing eleven shares in each of the two corporations, with the remainder of the shares in each being held by his father or other members of his family. The six certificates were all issued by the respective corporations either (a) as an original issue at the time of incorporation or else (b) as a new certificate representing a transfer of shares formerly held by others, after surrender, some with and some without endorsement, by the former shareholders to the corporation and cancellation by it of the former shareholders’ certificates.

In each instance, the new certificates showing Gerald’s stock ownership were delivered to him, and the issuance was at the time shown on the corporation books as representing the transactions above summarized. The evidence further shows, without substantial dispute, that in each instance the entire consideration for Gerald’s stock was furnished as a donation by his father, Murphy.

The court of appeal held that none of the shares had validly been transferred to Gerald and, hence, belonged neither to him nor to his former community. Essentially, in view of the virtually uncontradicted testimony that the certificates issued to Gerald represented shares of stock donated to him, our intermediate brethren held:

As to the (a) shares issued to him at the time of original incorporation, the donation was invalid since not before a notary and two witnesses, as required by Article 1536 of the Civil Code; and,

As to the (b) shares, issued to Gerald as a result of stock interests represented by certificates held by others and surrendered directly to the corporation (some of them without endorsement), the transfers were invalid because executed neither, with the formality required by Article 1536 for donations, nor with that required for transfer by the Uniform Stock Transfer Act, La. R.S. 12:621-43 (1950; renumbered in 1968), especially 12:624 thereof.

As to the latter or (b) shares, the court reasoned that transfer did not comply with the requirements of La.R.S. 12:624, either (1) because the former shareholder did not endorse the former certificates before surrendering them to the corporation or else (2) because, in the instances where the former certificate was endorsed by the former shareholder, it was not delivered to the transferee (Gerald) but instead directly to the corporation. Thus, despite the circumstance that the former certificate had been surrendered to the corporation and cancelled by it and a new certificate issued to Gerald for the shares represented thereby, our intermediate brethren held that such transfers were invalid because of these informalities in the transfers.

In so holding, the intermediate court overlooked: A person to whom a stock certificate is issued for valid consideration is regarded as the legal owner of it as against third persons. La.R.S. 12:601, 623. When a stock interest has been transferred by surrender of and cancellation of a former certificate, neither the corporation nor the former shareholder who acquiesced in such surrender can question the validity of the cancellation of the old certificate, or the validity of the new certificate or the transferee’s title to it; at least, if the attack on his title is based on any irregularity in the method of transfer, such as the failure to endorse the former certificate prior to its voluntary surrender to the corporation and its acquiesced-in cancellation by the latter.

See: Wisner v. Delhi Land & Improvement Co., 46 La.Ann. 1223, 15 So. 690 (1894); Richard v. Food and Services, Inc., 162 So.2d 213 (La.App. 1st Cir. 1964), certiorari denied 246 La. 347, 164 So.2d 351 (1954); Good v. Breazeale, 148 So.2d 766 (La.App. 4th Cir. 1963), certiorari denied 244 La. 141, 150 So.2d 766 (1963); Thomas v. Southdown Sugars, Inc., 95 So. 2d 721 (La.App.Orl.1957) (set aside on other grounds, 237 La. 245, 110 So.2d 738 (1959)); Harmeyer v. Anderson, 156 So. 53 (La.App.Orl.1934); 11 Fletcher Cyclopedia of the Law of Private Corporations, Section 5169 (Wolf rev. ed. 1971); 18 CJS Corporations § 393 (1939); 18 Am.Jur.2d “Corporations”, Section 395 (1965). See also: Morgan v. Morgan Plan Co., 164 La. 140, 113 So. 795 (1927); Finn v. Ponsaa, 308 So.2d 352 (La.App. 4th Cir. 1975), certiorari denied 313 So.2d 238 (La.1975).

As the authorities cited show, Gerald Libersat is the legal owner and holds title to the stock issued to him for valid consideration, either at the time of initial issuance (the (a) shares) or else by the surrender to the corporation and cancellation of former certificates representing the shares of stock so transferred (the (b) shares). The transfer of the shares and the issuance of new certificates is not invalidated under general corporation law because of any informalities in the mechanics of the transfer before the cancellation of the former certificates by the corporation, with the acquiescence of the former shareholders, by which they transferred their title to the shares and also lost any right to contest Gerald’s title to them on account of such informalities.

The court of appeal was thus in error in holding that Gerald never acquired title to the shares. However, the issue still remains whether, upon his acquisition of them, they became part of his separate estate or instead part of the assets of the community.

II. Are the stock shares represented by the certificates issued to Gerald his separate property, or did they instead form part of the assets of the marital community during which acquired ?

The evidence shows without contradiction that the consideration for the stock shares was furnished by Gerald’s father as a donation to him and that this donation was the basis for the corporations’ issuance to Gerald of the stock certificates. We further can find no factual error in the trial court’s determination that the dona-tive intent of the father was to have the stock in these family-held corporations issued to Gerald as his separate property.

The wife argues, however, that — whatever the donative intent — the stock shares were transferred to Gerald without the formalities required for a donation. Therefore, she argues, since the acquisition of these shares was not by a donation, they form part of the assets of the marital community during which acquired. Civil Code Articles 2334, 2402, 2404; R. D. M. Corporation v. Patterson, 255 La. 301, 230, So. 2d 820 (1970).

The error in this reasoning is the assumption that the valid issuance of the stock shares, shown beyond question to have been transferred with donative intent, could somehow be valid as transfers but nevertheless invalid as donations. As previously shown, the informalities complained of as invalidating the stock issu-ances as donations, did not affect the validity of the transactions themselves; by them, Gerald validly acquired title to the stock.

Thus, no notarial act under Civil Code Article 1536 was required in order to validate the father’s payment or furnishing of the consideration to the corporation for it to issue the stock to the son, Gerald; for, as to the corporation, the act was a payment for the shares to be issued, not a donation. Likewise, for the reasons earlier noted, the issuance of the stock to the do-nee, Gerald, by the corporation was a valid and irrevocable transfer to him of the shares represented by the certificates validly issued; under stock-transfer law, they required no notarial act as between the corporation and the transferee, Gerald, to validate the issuance of the stock by the corporation to him.

The contention advanced is that, nevertheless, although both sets of transactions (transferor-corporation and corporation-transferee) are valid and effective under stock-transfer law, they are ineffective as donations because, as between the transfer- or (the father) and ultimate transferee (the son), no authentic act or other formality required for a donation of incorpo-reals was executed.

Stock shares have been held to be incorporeal movables, Civil Code Articles 460, 474, and thus not susceptible to manual delivery without formality under Civil Code Article 1539. Succession of McGuire, 151 La. 514, 92 So. 40 (1922); Succession of Sinnott v. Hibernia National Bank, 105 La. 705, 30 So. 233 (1901) (stock certificate still in alleged donor’s name). As incorporeal movables, stock shares themselves are of the species of property . which fall within the terms of Article 1536, insofar as requiring a notarial act of donation.

Nevertheless, if a stock share is validly transferred by reason of the stock-transfer legislation, which inter alia permits shares to be transferred without consideration paid to the transferor, La.R.S. 12:624, 629(4), its transfer is valid as a donation without the necessity of the additional formality of a notarial act. Succession of McGuire, 151 La. 514, 92 So. 40 (1922); Poole v. Poole, 270 So.2d 218 (La.App. 1st Cir. 1972) (syllabus 1); Succession of Hall, 198 So.2d 511 (La.App. 2d Cir. 1967), certiorari denied 250 La. 974, 200 So.2d 664 (1957); LeBlanc v. Volker, 198 So. 398 (La.App.Orl.1940), noted 3 La.L.Rev. 650 (1941) and 1 Loyola L.Rev. 99 (1941); Oppenheim, Succession and Donations (Volume 10, Louisiana Civil Law Treatise), Section 194 (1973). See also Feldheim v. Plaquemines Oil and Development Co., 282 So.2d 469 (La. 1973).

Accordingly, the present transfers are valid as donations of the stock shares to the son Gerald, despite the lack of a notarial act. Since the consideration furnished for them was intended to be a donation to him and his separate estate particularly, the shares issued thereafter are his separate property. Civil Code Article 2334, Succession of Hemenway, 228 La. 572, 83 So.2d 377, 382 (1955).

In interpreting French Civil Code Article 931, which is quite similar to our Article 1536, the French authorities have reached similar results. Despite the broad language of their article (similar to ours), the French have held that certain types of donations are dispensed from the requirement of form (i. e., an act passed before a notary and two witnesses or also, in France, before two notaries). Planiol, Civil Law Treatise, Volume 3, Sections 2533, 2543A-2554 (LSLI translation, 1959); Aubry & Rau, Testamentary Successions and Gratuitous Dispositions, Section 659(2) (3 Civil Law Translations, 1969); Aubry & Rau, Obligations, Section 343B, p. 324 (1 Civil Law Translations, 1965).

Planiol notes that “it is often possible to make a donation, that means to cause someone to acquire a property value gratuitously, without drafting such a special instrument.” Section 2533, p. 236. As examples of the valid creation of a property right in a donee, without a special instrument to such effect, Planiol and Aubry & Rau list donations through a purchase in the name of another, by assignment or endorsement of credits or negotiable instruments, by transfer of securities valid under securities law, by stipulations for a third person (the donee), by gratuitous renunciations of a right, by release of obligations, and by other means.

Planiol points out that these various transactions are valid, since in a form authorized by general law, but that “Any transaction through which some right is assigned without the demand for a counter-performance is a donation. It is an intentional procurement of a gratuitous enrichment.” Section 2543A, p. 244. He also notes, “In cases of purchase in the name of another person, the object of the donation is not the acquired property, but the cash paid for it. It is an equivalent of an indirect manual gift, relieving the nominal purchaser from the payment of the price. One could say this is a payment made cum animo donandi [with the intention of giving].” Section 2545, p. 245. Planiol further suggests that the meaning of the code article is not that “all donations must be made before a notary,” but rather that the article “requires the notarial form only if a special instrument is drafted to declare the donation” and if such special instrument is required to effectuate the transaction itself. Planiol, Section 2533, p. 236.

For similar reasons, Louisiana interpretations hold the present transfers of shares of stock to the donee, valid under the stock-transfer act and effectively transferring irrevocable title to the shares to him, to be valid also as donations to him, because the consideration for their issuance was furnished by the donor with such donative intent.

We should note, however, that although this form of donation is exempted from the external formality of a notarial act otherwise required by Article 1536, it is subject to the substantive rules of donation, such as reduction and collation, etc. See LeBlanc v. Volker, 198 So. 398 (La.App. Orl.1940), noted 3 La.L.Rev. 650 (1941) ; Planiol, cited above, Section 2555; Aubry & Rau, Testamentary Succession and Gratuitous Dispositions, cited above, Section 659(g).

Decree

For the reasons stated, we find the shares of stock to form part of the separate estate of the husband-defendant. Consequently, we affirm the judgment of the district court dismissing the wife’s claim that they are part of the community assets. We set aside the court of appeal judgment holding otherwise. All costs of the appeal and of review by this court are to be paid by the wife-appellant; all other costs as provided by the trial court.

Court of Appeal judgment set aside, and district court judgment reinstated.

      . Five shares in Mutt’s Welding Service, Inc:., were issued to Gerald at the time of original incorporation in 1961 and delivered to him then.

      . Six shares in Mutt’s Welding Service, Inc., and another eleven shares in Murphy’s Lease and AVelding Service, Inc., all of which had originally been issued to the father, Murphy, another of his sons, his accountant, ór his employee.

      . In brief and argument it was indicated that the stock certificates issued to Gerald were kept in an office safe, as (the record shows) was his brother’s. Gerald was an employee of the corporations and was secretary-treasurer of one of them.

      . Article 1536 provides: “An act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity.”

      . La.R.S. 12:624, subd. A provides: “Title to a certificate and to the shares represented thereby can be transferred only:
      “(1) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or
      “(2) By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the j>erson appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person.

      . To recapitulate the informalities: As to the (a) shares, the lack of a notarial act, Civil Code Article 1536 (quoted in full in Footnote 1 above) ; as to the (b) shares, the failure of certain pre-requisites to cancellation of the former certificates (thus waiving these pre-cancellation pre-requisites) and the valid issuance of new certificates to Gerald as the legal owner.

      . To the same effect is the recent decision in Smith v. Smith, 311 So.2d 514 (La.App. 3d Cir. 1975), certiorari denied 313 So.2d 840 (La.1975). There, however, the court (on rehearing) concluded that the shares of stock originally issued or transferred were issued in exchange for consideration furnished by community funds or services, 311 So.2d 525-27, and that (unlike the present instance) the husband did not overcome the presumption that stock shares acquired during the community are community assets, Civil Code Articles 2334, 2402, 2405. The court of appeal thus found, factually, that the consideration was not donated by the father.

      . Louisiana law has similarly recognized indirect donations (the transfer by a third person to the donee at the donor’s order) as being valid as donations, although without the formality required for a direct donation by a donor to a donee if made by a special instrument effecting such transfer: Succession of Gorman, 209 La. 1092, 26 So.2d 150 (1946), Noted, 21 Tul.L.Rev. 120 (1946); Gibson v. Hearn, 164 La. 65, 113 So. 766 (1927) ; Chachere v. Dumatrait, 2 La. 38 (1830). See also Comment, Manual Donation of Obligations, 9 Tul.L.Rev. 602 (1935).