author: BLANCHE, Justice. DIXON, Justice

text:
    STATE of Louisiana v. John Robert JORDAN.
    No. 63482.
    Supreme Court of Louisiana.
    April 9, 1979.
    Felix J. Bruyninckx, III, Coenen & Berry, Rayville, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Nancy F. Gilliland, Asst. Dist. Atty., for plaintiff-respondent.
   BLANCHE, Justice.

Defendant, John Robert Jordan, was arrested for violation of Section 10-27 of the Monroe City Code (Disturbing the Peace). A search of the defendant incidental to this arrest produced a small prescription bottle containing Diazepam. Subsequently, defendant was charged by bill of information with possession of a controlled dangerous substance under LSA-R.S. 40:969. The defense filed a motion to suppress, the evidence on the grounds that it was the product of an illegal search. After a hearing on November 8, 1978, the trial judge denied the motion. Upon application of the defendant, this Court granted writs on December 8, 1978, to consider the correctness of the trial court’s ruling. We reverse.

Defendant, his brother, and a co-worker got off work early in the afternoon of May 18, 1978. Because it was defendant’s last day of work, the men celebrated by drinking some alcoholic beverages. Later, the three men drove around in the car of defendant’s father. Defendant went to sleep in the back seat of the car, admittedly under the influence of alcohol. The coworker, Billy Ray Gibson, drove and James Michael Jordan, defendant’s brother, sat on the passenger’s side of the front seat. As the men continued riding around town, defendant’s brother threw an empty beer can out of the automobile onto a sidewalk. An off-duty Monroe police department officer, in civilian clothes and in an unmarked vehicle, yelled to James Michael Jordan about his throwing the empty beer can out of the car. James Michael told the police officer to “Go to hell” and made an obscene gesture toward him. The police officer than chased the men and attempted to force their vehicle over to the side of the road. The police officer pulled alongside of the car, showed a badge and identified himself as a police officer, and at that time Billy Ray Gibson pulled into a parking lot of a convenience store that was nearby. Defendant’s brother then tried to change places with Gibson and drive off, but was stopped by several Monroe City police units who arrived at the scene. The police officers arrested James Michael Jordan for driving while intoxicated and asked him to get out of the automobile. Gibson was also arrested for negligent driving.

Officer John Pipes, one of the police who had been summoned to aid in the traffic stop, reached into the back seat of the car in order to awaken the defendant Jordan and bring him out of the car. The officer testified that Jordan was still asleep and that he had to give Jordan several vigorous shakes in order to bring him to consciousness. Pipes further testified that his primary motive for waking Jordan and removing him from the vehicle was to insure the safety of the officers during the investigation.

The testimony shows that Officer Pipes leaned into the vehicle to “roust out” Jordan. Before awakening Jordan, Pipes checked the car floor and visually inspected the defendant’s person for a weapon. Pipes further testified that he noticed what later turned out to be the pill container in the defendant’s pants pocket. Although he did not know at that time what the object was, he testified he was satisfied that it was not a weapon.

After the defendant was awakened, he was brought from the car. The evidence established that the defendant was very cooperative and did not verbally abuse the officer in any way. Officer Pipes testified that he talked with the defendant for a minute or so, smelled a strong odor of alcohol and noticed the defendant was unsteady on his feet. The officer concluded the defendant was drunk and placed him under arrest for drunk and disorderly conduct. At this time, Officer Pipes reached into the defendant’s pocket and seized a small bottle of pills which were identified as Diazepam. Defendant later was charged with illegal possession of a controlled dangerous substance under LSA — R.S. 40:969.

Defendant claims the evidence seized is the product of an unconstitutional search and seizure in that the arrest for disturbing the peace (drunk and disorderly) was without probable cause. He claims it was error for the trial judge not to sustain the motion to suppress.

This Court has held that as a general rule, warrantless searches are per se unreasonable and violate a person’s federal and state constitutional rights. State v. Jewell, 338 So.2d 633 (La.1976). However, we also noted in Jewell:

“To this general rule, however, historical and practical exceptions have developed justifying warrantless searches under limited, specified circumstances — essentially because of exigent necessity. These include, for instance, a limited search incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) . . . (State v. Jewell, supra at 636)

This Court has held many times that an arresting officer has the right to search a person and seize evidence incident to a lawful arrest. State v. Edwards, 354 So.2d 1322 (La.1978); State v. Taylor, 347 So.2d 172 (La.1977); State v. Marks, 337 So.2d 1177 (La.1976). In connection with the above principle, this Court noted in State v. Marks, supra at 1181, the following:

“Such a search [incident to a lawful arrest] is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has recently been confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). But in order to justify a search as incident to an arrest, an arrest must have already occurred and the arrest itself must have been lawful.”

Therefore, the sole issue before this Court is whether the arrest was a lawful one. If it was not, the evidence must be suppressed. Whether an arrest is lawful depends upon whether probable cause exists. Article 213 of the Louisiana Code of Criminal Procedure provides, in pertinent part:

“A peace officer may, without a warrant, arrest a person when:
“(3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer
We held in State v. Marks, supra at 1182: “Reasonable cause, which we have treated as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Wood, 262 La. 259, 263 So.2d 28 (1972). Reasonable or probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. . . . ”

Officer Pipes testified that he arrested the 'defendant for drunk and disorderly conduct (disturbing the peace) under Section 10 — 27 of the Monroe City Code. The question, therefore, is whether Officer Pipes had probable cause to believe the defendant had violated that provision. The arresting officer testified that when the defendant was removed from the car he was very cooperative. He further testified that the defendant did not in any manner act, or become boisterous or unruly. Hence, the only real conduct upon which a charge under Monroe City Code, Section 10-27 could be based is defendant’s act of sleeping in an intoxicated condition, on the back seat of his own automobile. An examination of the Monroe City Code, Section 10—27 is necessary to determine if the conduct described above can be considered violative of that provision.

Section 10-27 of the Monroe City Code, entitled Disturbing the Peace provides:

“It shall be unlawful to commit an act of disturbing the peace.
“Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
“(3) Appearing in an intoxicated condition . .

This provision is identical to LSA-R.S. 14:103 which also prohibits disturbing the peace.

There is no question in the instant case that the officer had reasonable grounds to conclude that the defendant was intoxicated. The sole issue is whether the facts and circumstances known to the arresting officer were sufficient to justify a man of ordinary caution to believe the defendant was acting, or had acted, in a manner which would “foreseeably disturb or alarm the public.”

In State v. Heck, 307 So.2d. 332 (1975), this Court approved the United States Supreme Court’s interpretation of the phrase “[as would] foreseeably disturb or alarm the public” in Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). In Garner, the Court, after examining the Louisiana jurisprudence, concluded:

“[TJhese words encompass only conduct which is violent or boisterous in itself, or which is provocative in the sense that it induces a foreseeable physical disturbance.” (82 S.Ct. at 253)

Today we reaffirm this interpretation. Since there is no distinction between the state statute and the Monroe ordinance, we find this interpretation equally applicable to both.

Considering the above, we conclude that there was no probable cause to arrest the defendant for disturbing the peace. The State has not offered one scintilla of evidence to sustain a finding that the arresting officer reasonably believed the defendant had at any time acted in a violent, boisterous or provocative manner. Certainly, sleeping in the back of one’s own automobile cannot qualify as violent or boisterous conduct, nor is it provocative in the sense that it has a tendency to induce a foreseeable physical disturbance. The State weakly argues that the arrest was justified on the basis that the defendant was too intoxicated to drive the car and it was too far to defendant’s home for him to walk. While we agree that it would have been against the defendant’s best interests under the circumstances for the police to leave the defendant at the scene, the State had other options besides placing the defendant under arrest.

Having found no probable cause to arrest, we conclude that the search incident to the arrest was also illegal. Any evidence produced as a result of an illegal search and seizure is tainted and thus inadmissible under the fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Shivers, 346 So.2d 657 (La.1977). We, therefore, conclude that the trial judge erred in denying defendant’s motion to suppress the evidence seized as a result of illegal arrest.

DECREE

The ruling of the district court is reversed and the motion of the defendant to suppress the evidence seized incident to defendant’s arrest for drunk and disorderly conduct is granted.

REVERSED.

DIXON, J., concurs with reasons.

DIXON, Justice

(concurring).

I respectfully concur, finding no probable cause to stop the car in which the defendant was sleeping.

      . While the testimony is unclear as to whether the officer actually said “you’re under arrest” at this particular moment, we deem it immaterial since it is clear the “freedom of the defendants was unmistakably restrained.” State v. Marks, 337 So.2d 1177, 1181-82 (La.1976). The officer testified that at the time he observed the above symptoms he decided to arrest the defendant for drunk and disorderly conduct and began a search of the defendant incident to that arrest.

      . Defendant testified that his father was a pharmacist, and the car in which the men were driving was used for his deliveries. Defendant claimed that he saw the bottle of pills in the back seat of the car, assumed that they had fallen out of a package for delivery, and placed them in his pocket in order to return them to his father later that evening.

      . The State has not seriously contended that the. search and seizure were justified under Code of Criminal Procedure Article 215.1 (Terry Stop). In light of Officer Pipes’ testimony that the defendant was only wearing lightweight slacks and a shirt, that he (the officer) had visually inspected the defendant for weapons before awakening him and was satisfied the defendant was not armed, and that the search in which he discovered the pills was made pursuant to the arrest for drunk and disorderly conduct, it is understandable why the State did not push the point. In light of these facts, we find it unnecessary to determine whether the seizure was the product of a lawful “Terry patdown.”

        . The testimony was uncontradicted that the defendant was asleep during the entire episode which caused the group to be stopped by the police. Officer Pipes testified that he had to shake the defendant several times in order to awaken him. We note, therefore, that the defendant could not have been a party to whatever illegal activities the other two men had been engaged.

      . We note that the instant case is easily distinguishable from State v. Jewell, 338 So.2d 633 (La.1976), cited by the State in its brief. There, the defendant was found sleeping behind the wheel of his car, but the engine was running and the car was parked so as to protrude across the center line of a narrow street in a residential neighborhood. The defendant was awakened and arrested for obstructing the highway.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. George T. BENNETT.
    No. 64129.
    Supreme Court of Louisiana.
    March 23, 1979.
   In re George T. Bennett, applying for motion for order to supplement record. St. Charles Parish. No. 77 — 201.

Motion granted. Certified copy of petition for per curiam, furnished here by relator-mover, is ordered filed and made part of record in pending appeal, La., 370 So.2d 888.


text:
    STATE of Louisiana, ex rel. Andre SORINA v. Mathew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 62468.
    Supreme Court of Louisiana.
    March 23, 1979.
   In re Andre Sorina applying for writ of mandamus. Orleans Parish. No. 237-612.

Denied. Moot. Mandamus application moot. Appellate transcript has been filed in this Court. State v. Sorina, Docket No. 64,163.


author: DIXON and BLANCHE, JJ., concur.

text:
    John H. MORGAN, Individually and as Administrator of the Estate of his Minor Child, Dan Morgan v. MATLACK, INC., State Farm Mutual Insurance Company, Inc., Cumis Insurance Society, Inc., the Louisiana Department of Highways and Parish of East Baton Rouge.
    No. 64197.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Dan Morgan, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 366 So.2d 1071.

Writ denied.

DIXON and BLANCHE, JJ., concur.

The result is correct by reliance on Canter v. Koehring, clearly wrong. See Arceneaux v. Domingue, La., 365 So.2d 1330.


author:
MARCUS, J.,
      CALOGERO and BLANCHE, JJ.,

text:
    Suzanne K. WEXLER, Wife of/and Nathan Wexler, M.D. v. Austin MARTIN, Kenneth Rearick, Clearview Wrecker Service and Allstate Insurance Company.
    No. 64202.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Austin Martin, Kenneth Rearick, Clearview Wrecker Service & Allstate Insurance Co. applying for writ of certiorari, Fourth Circuit Court of Appeal. 367 So.2d 111, 369 So.2d 273. Parish of Jefferson.

Writ denied.

MARCUS, J.,

would grant the writ, believing the Court of Appeal opinion is incorrect and agreeing with dissent.

CALOGERO and BLANCHE, JJ.,

concur in writ denial. Result here is probably correct. But since writ was denied in Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), where there was a contrary result writ should be granted and issue clearly decided by that court.


text:
    STATE of Louisiana v. Wayne RAU.
    No. 64224.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re State of Louisiana, through' the District Attorney, Honorable John M. Mam-oulides, applying for writ of review. Parish of Jefferson. Nos. 761431 and 761432.

Writ granted. The ruling of the trial court is reversed. The indictment is reinstated. Cf. State v. Wilson, 363 So.2d 481 (La.1978).


text:
    CITY OF SHREVEPORT v. Ernest W. SHAFFER, Jr.
    No. 64241.
    Supreme Court of Louisiana.
    April 9, 1979.
   In re Ernest W. Shaffer, Jr. applying for remedial writ. Caddo Parish. City Court of Shreveport. T-5319.

Writ denied. Unlike the case on which relator relies, City of New Orleans v. Lyons, 342 So.2d 196, the Shreveport ordinance under which relator was prosecuted is a “fighting words” breach of the peace statute. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) as reaffirmed in Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408.


text:
    Paul E. BUSSEY v. AMERICAN SECURITY INSURANCE COMPANY.
    No. 64284.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Paul E. Bussey and Continental Casualty Company, applying for writ of review to the Court of Appeal, Second Circuit. Parish of Caddo. No. 13770.

Writ denied.


text:
    STATE of Louisiana v. Donald J. FRANCIS.
    No. 64086.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Donald J. Francis applying for writs of certiorari and mandamus. Parish of Lafayette. No. 42585.

Not considered. There is no showing that petitioner applied for relief in the trial court.


text:
    STATE of Louisiana ex rel. Martin SHELBY v. CRIMINAL DISTRICT COURT, SECTION “J” PARISH OF ORLEANS.
    No. 64232.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Martin Shelby, applying for writ of mandamus. Orleans Parish. No. 237 — 759.

Writ granted. Application transferred to Criminal District Court for action.


text:
    STATE of Louisiana v. John E. GUIDRY
    No. 64160.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re John E. Guidry applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 77-1532.

Writ granted. Trial judge is ordered to try relator without undue delay.


text:
    STATE of Louisiana ex rel. Bobby R. SNEED v. CLERK OF COURT, 2ND JUDICIAL DISTRICT COURT, PARISH OF BIENVILLE.
    No. 64064.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Bobby R. Sneed, applying for writ of mandamus. Bienville Parish.

Writ denied. Application is moot. This court is advised that transcript has been completed and furnished relator.


text:
    STATE of Louisiana ex rel. James HUNTER v. Frank BLACKBURN, Warden.
    No. 64269.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re James Hunter applying for reconsideration. Parish of Orleans.

Writ denied.

DIXON, J., dissents from failure to reconsider.


text:
    STATE of Louisiana ex rel. Juniser J. JONES v. Hayden J. DEES, Warden, et al.
    No. 64259.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Juniser J. Jones applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of Orleans. No. 259-839.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph BAILEY, Jr. v. Bernard L. KNOBLOCH, Judge.
    No. 64256.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Joseph Bailey, Jr. applying for writ of mandamus. Parish of Lafourche. No. 35977.

Writ denied. Judgment on habeas application rendered by district court on March 26, 1979. The matter is moot.


text:
    STATE of Louisiana ex rel. Clarence W. WALKER v. O. H. HAYNES, Jr., Sheriff.
    No. 64243.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Clarence W. Walker, applying for remedial writs. Parish of Webster. No. 46,674.

Writ denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Autry Lee JONES v. Judge Steve A. ALFORD, Jr., et al.
    No. 64240.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Autry Lee Jones applying for writ of mandamus. Parish of East Baton Rouge. No. 200,173.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Michael JOHNSON v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 64239.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Michael Johnson applying for remedial writ. Parish of Orleans. No. 263—303.

Writ denied. Although the appeal was taken January 2, 1978, the return from the OIDP shows that neither the transcript nor the assignments of error have as yet been filed. The application is therefore premature.


text:
    STATE of Louisiana ex rel. Clinton ANDERSON v. Frank C. BLACKBURN, Warden.
    No. 64229.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Clinton Anderson applying for writ of certiorari and habeas corpus. Parish of Caddo. No. 105,129-HC.

Writ denied.


text:
    STATE of Louisiana ex rel. Willie WILLIAMS v. Israel AUGUSTINE, Judge.
    No. 64138.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Willie Williams applying for writ of mandamus. Parish of Orleans.

Writ denied. Writ is moot.


text:
    STATE of Louisiana In the Interest of Catrice ALEXANDER.
    No. 64423.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Cassandra Alexander, Mother of Catrice Alexander, applying for writs of certiorari, prohibition and mandamus. Orleans Parish. Family Court No. 182-887.

Writ not considered. This application is transferred to the Court of Appeal. Upon the showing made, this case does not appear to involve a criminal prosecution.


text:
    STATE of Louisiana In the Interest of Kendra BROWN.
    No. 64422.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Cynthia Brown, and Nathaniel Brown, parents of Kendra Brown, applying for writs of certiorari, prohibition and mandamus. Orleans Parish. Family Court No. 182-831.

Writ no't considered. This application is transferred to the court of appeal. Upon the showing made, this case does not involve a criminal prosecution.


text:
    STATE of Louisiana ex rel. Leslie F. WALGAMOTTE v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 63971.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Leslie F. Walgamotte applying for writ of mandamus. Parish of Orleans. No. 263-730.

Writ denied. Although the appeal was taken on November 17, 1968, the return from the OIDP states that neither the transcript nor the assignments of error have as yet been filed. The application is premature.


text:
    STATE of Louisiana ex rel. Robert HARRISON v. Matthew S. BRANIFF, Judge, et al.
    No. 64276.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Robert Harrison, applying for writ of mandamus and prohibition. Orleans Parish.

Writ granted. Motion transferred to district judge who is ordered to either recuse himself or refer motion to another judge for hearing.


text:
    STATE of Louisiana v. Charles R. HEFLIN.
    No. 64453.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Charles R. Heflin, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. Nos. 110832 and 110622.

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


text:
    John D. SCOTT v. COMMERCIAL UNION ASSURANCE COMPANIES.
    No. 64313.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re John D. Scott applying for writ of certiorari, Second Circuit Court of Appeal. No. 13,742. Parish of Jackson.

Denied.


text:
    Samuel Mark CAMP v. RUCKER PHARMACAL COMPANY, INC.
    No. 64295.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Co., Inc. applying for writ of certiorari, Second Circuit Court of Appeal. No. 13,702. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Ezzard Eugene BOWMAN.
    No. 64274.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Ezzard Eugene Bowman applying for remedial writ. East Baton Rouge Parish.

Writ denied. Relator’s pro se application presents issues in connection with his. trial which should be raised by his pending appeal which was lodged in this Court on March 9, 1979. His contention that he was represented by ineffective counsel should be raised by habeas application only in the event that his conviction is affirmed upon appeal. His remaining contentions are without merit. Insofar as claim of illness, relator should seek relief in District Court.


text:
    Louis ZYCH v. Robert G. EVANS, Jr., and Evans Cooperage Company.
    No. 64272.
    Supreme Court of Louisiana.
    April 23, 1979.
   Re Louis Zych, applying for writs of cer-tiorari, prohibition or mandamus. Orleans Parish. No. 78-18218.

Writ denied.


text:
    STATE of Louisiana v. Robert Lee WYMORE.
    No. 64237.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Robert Lee Wymore, applying for writ of mandamus. Parish of St. Charles. No. 78-249.

Writ denied. See transcript of proceedings dated December 18, 1978.


text:
    STATE of Louisiana ex rel. Barry Edward BALLARD v. Diehlmann C. BERNHARDT.
    No. 64136.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Barry Ballard applying for writ of mandamus. Parish of Ouachita. No. 36,-336.

Writ denied. This Court is advised that relator-appointed attorney has determined not to re-open the evidentiary hearing heretofore held in the district court, and has furnished relator copy of transcript of original trial (ineffective counsel is relator’s contention) to relator. Accordingly reserving to relator the right to apply, pro se, for such relief and in such court, as he should choose, his application here for mandamus is denied.


text:
    STATE of Louisiana In the Interest of Wotu DUVERNAY.
    No. 64421.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Dale Smith, Mother of Wotu Duver-nay, applying for writs of certiorari, prohibition and mandamus. Orleans Parish. Family Court No. 182-375.

Writ not considered. This application is transferred to the Court of Appeal. Upon the showing made, this case does not appear to involve a criminal prosecution.


text:
    STATE of Louisiana v. Darryl Wayne WILLIAMS.
    No. 64368.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Darryl Wayne Williams, applying for supervisory writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 2-79-591.

Writ granted. It is ordered that a preliminary hearing be held forthwith.


author: SUMMERS, C. J., CALOGERO, J.,

text:
    Barbara J. SULONY et al. v. SOUTHERN BAPTIST HOSPITAL et al.
    No. 64320.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Dr. Joseph M. Nadell and Dr. Donald Richardson, applying for supervisory or remedial writs. Orleans Parish. No. 77-1837; C/A No. 10245.

Writ granted. Our interpretation of the judgment of the district court is that it did overrule the plea of prematurity. Hence, case remanded to the court of appeal for it to examine its supervisory jurisdiction.

SUMMERS, C. J.,

would grant the writ and order the record sent to this Court for a hearing and opinion.

CALOGERO, J.,

dissents believing this Court should not exercise its supervisory jurisdiction. Court of Appeal’s denial, for the reasons expressed, would not adversely affect the rights of the parties, particularly as relates to a renewed filing of exceptions of prematurity.


text:
    STATE of Louisiana v. Steve M. MARCANTEL.
    No. 64135.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Steve M. Marcantel, applying for writ of review. Evangeline Parish.

Granted. The applicant may discharge his appointed lawyer and represent himself.


text:
    STATE of Louisiana v. Robert F. PITARD.
    No. 64070.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Robert F. Pitard, applying for writ of certiorari, prohibition, mandamus and review. Orleans Parish. No. 267-219.

Writ granted. State required to answer 14 and 15 in a motion for a bill of particulars.

SUMMERS, C. J., dissents.


text:
    STATE of Louisiana ex rel. Leon TOOMAJAN v. CLERK OF COURT, CRIMINAL DISTRICT COURT.
    No. 64062.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Leon Toomajan applying for writ of mandamus. Parish of Orleans. No. 230-535.

Writ granted. Trial court is ordered to act on application and to furnish relator with transcript of Boykinization.

SUMMERS, C. J., dissents.


text:
    STATE of Louisiana ex rel. Richard LENSEY v. Gayle K. HAMILTON, Judge, 1st Judicial District Court, Parish of Caddo, State of Louisiana.
    No. 64035.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Richard Lensey, applying for writ of mandamus. Caddo Parish. No. 99,639.

Writ granted. Trial court ordered to furnish the transcript of the Boykin hearing.


text:
    John Crawford HICKS v. RUCKER PHARMACAL CO., INC.
    No. 64290.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Co., Inc. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 399.

Writ denied.


text:
    John Crawford HICKS et al. v. RUCKER PHARMACAL COMPANY, INC.
    No. 64315.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re John Crawford Hicks, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. 367 So.2d 399. Parish of Caddo.

Writ denied.


text:
    Orlis R. LONG et al. v. RUCKER PHARMACAL CO., INC.
    No. 64291.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Co., Inc. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 405.

Writ denied.


text:
    James Ralph MORELAND v. RUCKER PHARMACAL CO., INC.
    No. 64292.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Co., Inc. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 406.

Writ denied.


text:
    Larry A. BLANSETT and Judy W. Blansett v. RUCKER PHARMACAL COMPANY, INC.
    No. 64293.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Co., Inc. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 406.

Writ denied.


text:
    Marcel E. CLAUSE v. RUCKER PHARMACAL COMPANY, INC.
    No. 64294.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Company, Inc., applying for certiorari, or writ of review to the Court of Appeal, Second Circuit. Parish of Caddo. 367 So.2d 407.

Writ denied.


text:
    Jimmy Austin PAYNE v. RUCKER PHARMACAL COMPANY, INC.
    No. 64296.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 367 So.2d 408.

Writ denied.


text:
    John Phillip BESSONETT and Judy Smith Bessonett v. RUCKER PHARMACAL COMPANY, INC.
    No. 64297.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Company, Inc., applying for certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Caddo. 367 So.2d 408.

Writ denied.


text:
    Donald L. LONG v. RUCKER PHARMACAL COMPANY, INC.
    No. 64298.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 367 So.2d 409.

Writ denied.


text:
    Frances W. WATERS v. RUCKER PHARMACAL COMPANY, INC.
    No. 64299.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Company, applying for certiorari, or writ of review to the Court of Appeal, Second Circuit. Parish of Caddo. 367 So.2d 409.

Writ denied.


text:
    James E. DUFFER v. RUCKER PHARMACAL COMPANY, INC.
    No. 64300.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Co., Inc. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 410.

Writ denied.


text:
    James Edward SMITH v. RUCKER PHARMACAL CO., INC.
    No. 64301.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Co., Inc. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 410.

Writ denied.


text:
    Charles C. TURNER v. RUCKER PHARMACAL COMPANY, INC.
    No. 64302.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 367 So.2d 411.

Writ denied.


text:
    Orrin Paul CALDWELL v. RUCKER PHARMACAL COMPANY, INC.
    No. 64303.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Company, Inc. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 411.

Writ denied.


text:
    Marvin Thomas DAVIS v. RUCKER PHARMACAL CO., INC.
    No. 64304.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Co., Inc. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 412.

Writ denied.


text:
    William H. DAUGHTRIDGE v. RUCKER PHARMACAL COMPANY, INC.
    No. 64305.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rucker Pharmacal Company, applying for certiorari, or writ of review to the Court of Appeal, Second Circuit. Parish of Caddo. 367 So.2d 412.

Writ denied.


text:
    William Lum MARTIN v. SECURITY INDUSTRIAL INSURANCE COMPANY
    No. 64279.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Security Industrial Insurance Co. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Webster. 367 So.2d 420.

Writ denied.

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


text:
    Karl Adair COX et ux. v. Johnny R. MOORE et al.
    No. 64325.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Johnny R. Moore applying for Writ of Certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 424.

Writ denied.

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


text:
    Miguel MARCELENO, Sr., et al. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, et al. David HOGAN and Kathleen Hogan v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, et al.
    No. 64288.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re State of Louisiana, Dept, of Transportation and Development, Office of Highways, applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Morehouse. 367 So.2d 882.

Writ denied.


text:
    Mable WILSON v. Timothy Lee ERNST
    No. 64312.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Timothy Lee Ernst applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Ouachita. 367 So.2d 891.

Writ denied. Without subscribing to the reasons assigned by the court of appeal, nevertheless, the result is not incorrect.

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


text:
    Effie HUMPHREY v. R. C. FEAZEL et al.
    No. 64323.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Effie Humphrey applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 897.

Writ denied.


text:
    Robert James WALKER v. Ronnie COLEMAN et al.
    No. 64286.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Hanover Insurance Company applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 367 So.2d 395.

Writ denied. Not timely. (La. C. Civil Procedure, Art. 968)

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


text:
    RIVERLAND OIL MILL, INC. v. UNDERWRITERS FOR LLOYD’S OF NEW YORK.
    No. 64285.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Riverland Oil Mill, Inc. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Bossier. 368 So.2d 156.

Denied.

DENNIS, J., would grant the writ.


text:
    RIVERLAND OIL MILL, INC. v. UNDERWRITERS FOR LLOYD’S NEW YORK.
    No. 64310.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Underwriters for Lloyd’s New York applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Bossier. 368 So.2d 156.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Reginald KANE v. Gilman BRAQUET et al.
    No. 64326.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Reginald Kane, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Iberia. 368 So.2d 1176.

Writ denied.


text:
    Dennis EHRHARDT, Individually and For and on Behalf of his minor Daughters, Deanna and Cindy Ehrhardt, and Shirley Ehrhardt v. Robert L. CUMMINS, Sr., Individually and as Administrator of the Estate of his minor son, Shaw T. Cummins, and Government Employees Insurance Company (GEICO).
    No. 64314.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Shirley Ehrhardt, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 369 So.2d 213.

Writ denied.

TATE, J., would grant the writ.


text:
    Janice MEADOUX, wife of/and Lester Joseph Meadoux, Sr., et al. v. Robert HALL et al. Valerie Martin ROBOTTOM et al. v. Robert HALL et al.
    No. 64282.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Janice Meadoux and Lester Joseph Meadoux, Sr. and Valerie Martin Robottom applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of St. Charles. 369 So.2d 240.

Writ denied.


author: TATE, MARCUS and DENNIS, JJ.,

text:
    Herman DOUGLAS v. Carolyn (Palms) DOUGLAS.
    No. 64270.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Herman Douglas applying for writ of mandamus. Parish of Caddo. No. 255-436.

Writ denied.

TATE, MARCUS and DENNIS, JJ.,

concur, being of the opinion that writ should not be considered by this Court before application to the Court of Appeal.


text:
    RUSTON STATE BANK & TRUST COMPANY v. George THEODUS.
    No. 64268.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Ruston State Bank & Trust Co. applying for writ of certiorari, Third Judicial District Court. Parish of Lincoln. 366 So.2d 218.

Writ denied.


text:
    STATE of Louisiana ex rel. Warren NARCISSE v. Frank BLACKBURN, Warden, et al.
    No. 64253.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Warren Narcisse applying for writ of habeas corpus. Parish of St. James. No. 9285.

Writ not considered. The relator has not applied to the trial court. He withdrew his previous application for writs of habeas corpus. See our docket No. 57,381, and Order of March 12, 1976, dismissing his mandamus application as moot.


text:
    STATE of Louisiana v. Edna JULUKE.
    No. 64327.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, mandamus and prohibition. Orleans Parish. No. 268-277.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Charles R. Ward, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 7th day of May, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    CITY OF LAKE CHARLES v. Elijah IFORD, Sr.
    No. 64324.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Elijah Iford, Sr., applying for writs of certiorari. Parish of Calcasieu. No. 1318-79.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Charles S. King, Judge of the Fourteenth Judicial District, Court for the Parish of Calcasieu, to transmit to the Supreme Court of Louisiana, on or before the 7th day of May, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Rolando SUSSMANN.
    No. 64317.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re Rolando Sussmann, applying for writs of certiorari, prohibition, mandamus and stay order. Orleans Parish. No. 264-177.

Writ and stay order granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Oliver Schulingkamp, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 7th day of May, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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

It is further ordered that, in the meantime and until the further orders of this court all proceedings against the relator in said Criminal District Court shall be stayed and suspended.


text:
    STATE of Louisiana v. Mark R. WILLIAMS.
    No. 64277.
    Supreme Court of Louisiana.
    April 23, 1979.
   In re State of Louisiana, through the District Attorney, Leander H. Perez, Jr., applying for writs of certiorari. Plaque-mines Parish. No. 53325.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Eugene E. Leon, Judge of the 25th Judicial District, Court for the Parish of Plaquemines, to transmit to the Supreme Court of Louisiana, on or before the 7th day of May, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. James G. MANNING.
    No. 64485.
    Supreme Court of Louisiana.
    April 25, 1979.
   In re James G. Manning applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Grant. No. 32406.

Writ denied.


text:
    STATE of Louisiana v. William DOYLE.
    No. 64252.
    Supreme Court of Louisiana.
    April 26, 1979.
   In re State’s response to Relator-Petitioner’s writ application for release on his own recognizance. Orleans Parish. Nos. 243— 932, 242-169.

In view of the State’s response, this Court’s orders are set aside and the State is ordered to proceed forthwith with the new trial ordered.


author: TATE, CALOGERO and DENNIS, JJ.,

text:
    STATE of Louisiana v. Wayne RAU.
    No. 64224.
    Supreme Court of Louisiana.
    April 26, 1979.
   In re Wayne Rau, applying for rehearing on writ of review. Jefferson Parish. No. 76-14232.

Rehearing denied.

TATE, CALOGERO and DENNIS, JJ.,

dissent. The majority may be correct in finding that La.C.Cr. Procedure, Art. 576 permits the re-institution of prosecution on a “lesser offense”. Both the trial court and the defendant deserve an articulated opinion explaining why La.C.Cr. Procedure Art. 574 (which permits interruption of prescription only as to “lesser and included”) does not apply.


text:
    STATE of Louisiana v. Jerry Wayne SMITH.
    No. 64479.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Jerry Wayne Smith applying for supervisory and remedial writs. Parish of Caddo. No. 110,873.

Writ denied.

DENNIS, J., would grant the writ.


text:
    J. B. WILLIS v. SOUTH CENTRAL BELL TELEPHONE COMPANY et al.
    No. 64405.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re J. B. Willis, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Martin. No. 6865.

Writ denied.

SUMMERS, C. J., DIXON and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Billy Joe GARRETT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64404.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Billy Joe Garrett, applying for writ of habeas corpus. Orleans Parish. No. 161-208.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ and order an evidentiary hearing.


text:
    STATE of Louisiana v. Cody L. DENTON et al.
    No. 64392.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Cody L. Denton, et al. applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Lafourche. No. 85909.

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


text:
    STATE of Louisiana ex rel. Elbert STEWART v. James E. CLARK, Judge, First Judicial District Court, Parish of Caddo, State of Louisiana.
    No. 64390.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Elbert Stewart, applying for writ of mandamus. Parish of Caddo. Nos. 96,187 and 96,191.

Writ denied.

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


text:
    STATE of Louisiana v. Jerry L. GAUDET.
    No. 64411.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Jerry L. Gaudet, applying for writs of certiorari, prohibition, and mandamus. Jefferson Parish. No. 78-24-34.

Writ denied. La.Cr.P., Article 434 has no application to production or discovery of the evidence in this case. However, the defendant is not entitled to the relief sought.


text:
    STATE of Louisiana v. Henry Lee MARTIN.
    No. 64381.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Henry Lee Martin applying for writs of habeas corpus and certiorari. Parish of Morehouse. No. 22,424.

Denied.

DIXON, J., would grant the writ.


text:
    Davy Keith SMITH, etc., et al. v. Dr. Francis RODWIG.
    No. 64380.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Davy Keith Smith, et al. applying for supervisory writ. Párish of Jefferson. No. 210-215.

Writ denied.

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


text:
    STATE of Louisiana v. John WILLIE.
    No. 64378.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re John Willie, applying for writ of certiorari and review. Parish of St. Tammany. No. 35844/35855.

Writ denied.

DIXON, J., would grant the writ and order evidentiary hearing.


text:
    STATE of Louisiana ex rel. Paul W. MOLBERT v. FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, State of Louisiana.
    No. 64350.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Paul W. Molbert, applying for writ of habeas corpus. Lafayette Parish. No. 37145.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ., would grant and would order a hearing on the Brady issue.


text:
    STATE of Louisiana v. Kenneth L. MOORE.
    No. 64343.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Kenneth L. Moore applying for writs of habeas corpus and certiorari. Parish of Orleans. No. 259-445.

Writ denied.


text:
    Rhonda W. KING v. Lawrence R. FAIRCHILD.
    No. 64341.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Rhonda W. King applying for writ of certiorari, First Circuit Court of Appeal, No. 12,250. Parish of East Baton Rouge.

Writ denied.

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


text:
    STATE of Louisiana v. Lambert J. GONZALES.
    No. 64338.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re State of Louisiana applying for writ of certiorari. Parish of Orleans. No. 266-961.

Denied.

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


author: TATE, J.,

text:
    STATE of Louisiana ex rel. Thomas J. PIERCE v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 64032.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Thomas J. Pierce, applying for remedial writs. Orleans Parish. No. 263— 653.

Writ denied. Appeal pending.

TATE, J.,

concurs. I assume the OIDP will furnish its client copies of the brief and assignment of error filed on his behalf, when these documents are prepared.


text:
    STATE of Louisiana ex rel. Garland WHITE v. 4TH JUDICIAL DISTRICT COURT, Parish of Ouachita, et al.
    No. 64413.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Garland White, applying for \Vrit of habeas corpus. Parish of Ouachita. No. 35-560.

Writ denied.


text:
    STATE of Louisiana ex rel. Daniel F. BEACH v. Frank C. BLACKBURN, Warden.
    No. 64412.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Daniel F. Beach applying for writ of habeas corpus. Parish of St. Mary. No. 74,531.

Denied, for the reasons stated by the trial judge.


text:
    STATE of Louisiana ex rel. Oneil BASTIAN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64402.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Oneil Bastían applying for writs of habeas corpus and certiorari. Parish of St. John the Baptist. No. 16112.

Writ denied.


text:
    STATE of Louisiana ex rel. Larry Joe PHILLIPS v. Frank MARULLO, Criminal District Court Judge, (Section D), et al.
    No. 63821.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Larry Joe Phillips, applying for writ of mandamus. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Reuben TACKNO and Milton Armstead v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64351.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Reuben Tackno and Milton Arm-stead applying for writ of certiorari, prohibition, mandamus or habeas corpus. Orleans Parish. No. 249-351.

Writ granted. Evidentiary hearing ordered.


text:
    Rene M. GREEN v. Albert R. CULMONE. Albert R. CULMONE v. Rene GREEN (Mrs. Joe Green).
    No. 64478.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Albert Russell Culmone applying for supervisory writs and/or writ of certio-rari or review. Parish of East Baton Rouge. Family Court No. 46345, First Circuit Court of Appeal No. 12,815.

Writ denied.


text:
    STATE of Louisiana v. Anthony TRAVIS.
    No. 64493.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Anthony Travis, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Tangipahoa. No. 43,207.

Writ denied.


text:
    STATE of Louisiana v. Alfred CONN.
    No. 64396.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Alfred Conn, applying for remedial writs. Orleans Parish.

Writ denied. The denial of the Motion to Suppress may be reviewed in the event of conviction. In the absence of a prior motion for speedy trial in the district court, the request for speedy trial made in this court will not be considered.


text:
    Clarence WILLIAMS, Jr. v. Thomas ADAMS et al.
    No. 64348.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Clarence Williams, Jr. applying for writ of certiorari, First Circuit Court of Appeal. No. 12,447. Parish of St. Mary.

Writ denied.


text:
    Mike WENDT v. CITY OF BOSSIER and the City Council of Bossier City.
    No. 64332.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Mike Wendt, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bossier. No. 13,-761.

Writ denied.


text:
    STATE of Louisiana v. Bobby Lee SMITH.
    No. 64144.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Bobby Lee Smith applying for writ of mandamus. East Baton Rouge Parish. No. 7-74-2698.

Writ denied.


text:
    STATE of Louisiana v. Abraham IGNONT.
    No. 64484.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Abraham Ignont applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. 388,161.

Writ granted. The original bond order is set aside, and the trial court is ordered to hold a hearing and fix a reasonable bond.


text:
    Marlene JACOBS, etc., et al. v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    No. 64362.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Marlene Jacobs, et al. applying for writ of certiorari, Fourth Circuit Court of Appeal. No. 9446. Parish of Orleans.

Writ granted. The judgment of the court of appeal is reversed. A Petition which demands damages for loss of future wages and for future pain and suffering includes damages for psychological and psy-choneurotic injuries. The case is remanded to the court of appeal for reconsideration.

SUMMERS, C. J., would not grant this hearing without the record and a hearing.


text:
    STATE of Louisiana v. Malcolm FRAZIER.
    No. 64356.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Malcolm Frazier applying for writ of certiorari and mandamus. Parish of Orleans. No. 246-172.

'Writ granted. Trial Court is ordered to conduct a full evidentiary hearing and thereafter rule on relator’s habeas application.


text:
    STATE of Louisiana v. Glenn CONSTANTINE.
    No. 64349.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Glenn Constantine applying for remedial writ. Parish of Orleans.

Writ granted. We have been advised that the case will be tried April 26. In any event, trial is ordered forthwith.


text:
    Roy J. LeBLANC v. Else P. LABORDE.
    No. 64389.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Roy J. LeBlanc applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Avoyelles. 368 So.2d 1126.

Writ denied.


text:
    Clarence GIROUARD, Jr. v. Elizabeth Ann HALPIN.
    No. 64382.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Elizabeth Ann Halpin. applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Lafayette. 368 So.2d 1139.

Writ denied.


text:
    Virgil PORTER v. Doyle SMITH d/b/a D. S. Engine & Welding Service.
    No. 64386.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Virgil Porter applying for writ of certiorari, Third Circuit Court of Appeal. Parish of LaSalle. 368 So.2d 1148.

Writ denied.


text:
    John W. HANCOCK v. SAFECO INSURANCE CO., et al.
    No. 64379.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re John W. Hancock applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Rapides. 368 So.2d 1162.

Writ denied.

DIXON, J., would grant the writ.


text:
    George M. DAILEY v. Zachary Clayton HOUGH et al.
    No. 64366.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re George M. Dailey applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Natchitoches. 368 So.2d 1182.

Writ denied.


text:
    Edward MANUEL v. AMERICAN INDEMNITY CO. et al.
    No. 64393.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Southeastern Fidelity Insurance Co. applying for writ of certiorari, Third Circuit Court of Appeal. No. 6310. Parish of Cal-casieu.

Writ denied.


text:
    Melvin ANCRUM v. EDWARD LEVY METALS, INC., et al.
    No. 64370.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Melvin Ancrum, applying for certio-rari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 368 So.2d 1225.

Writ denied.


text:
    Clarence P. FORET v. Jeanne L. SCHROEDER et al.
    No. 64357.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Clarence P. Foret applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 368 So.2d 1237.

Writ denied.


text:
    Elridge J. GREEN v. The TEXAS AND PACIFIC RAILWAY CO. and L. E. Carmichael.
    No. 64376.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Elridge J. Green, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 369 So.2d 248.

Writ denied.

TATE and DIXON, JJ., would grant the writ. The court of appeal did not consider that the railroad employees had the last clear chance to avoid this accident.


text:
    George TENHAAF and Sandra Sandifer v. WHEELS, INC., et al.
    No. 64342.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re George Tenhaaf and Sandra Sandi-fer applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 367 So.2d 1330.

Writ denied.

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


text:
    STATE of Louisiana In the Interest of Scotty Lynn COLLUM.
    No. 64336.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Scotty Lynn Collum, applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of Lafourche. 368 So.2d 460.

Writ denied.

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


text:
    Edward A. BRILEY v. Frank S. FALATI et al.
    No. 64406.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re Edward A. Briley, applying for writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 367 So.2d 1227.

Writ denied. The result is correct.


text:
    HUBER, HUNT & NICHOLS, INC. v. STATE of Louisiana.
    No. 64394.
    Supreme Court of Louisiana.
    April 27, 1979.
   In re State of Louisiana, through the Attorney General, William J. Guste, Jr., applying for certiorari, or writ of review, to the Court of Appeal. Fourth Circuit. 367 So.2d 1293.

Writ denied.

CALOGERO, J., recused.


author: SUGG, Justice, for the Court: BOWLING, Justice, WALKER, Justice, LEE, Justice,

text:
    MISSISSIPPI POWER COMPANY and State Farm Fire & Casualty Company v. Robert L. JONES.
    No. 50793.
    Supreme Court of Mississippi.
    March 28, 1979.
    Rehearing Denied May 16, 1979.

      Williams, Glover & Walton, David Williams, Meridian, for appellant.
    Sandusky & Bailey, David Stephenson, Lawrence W. Rabb, Eppes & Shannon, J. R. Shannon, Meridian, for appellees.
   SUGG, Justice, for the Court:

This case involves an appeal by Mississippi Power Company from a judgment in favor of Robert L. Jones against it for $5,000 actual damages and $15,000 punitive damages. State Farm Fire & Casualty Company cross-appealed from the judgment which limited its subrogation rights to the actual damages assessed by the jury, contending it is entitled to share in the award of punitive damages as a compensation carrier which had paid Workmen’s Compensation benefits to Jones.

Jones commenced a third party action against MPC under section 71-3 — 71 Mississippi Code Annotated (1972). Jones charged in his declaration that MPC was guilty of reckless, willful, wanton and unlawful acts constituting negligence which proximately and directly resulted in the injuries suffered by him. He predicated his case on three theories of negligence; (1) the breach by MPC of its common law duty to utilize the high standard of care commensurate with the dangerous and hazardous nature of electricity, (2) the willful violation of an ordinance of the City of Meridian which prohibited energizing an electrical system until after the city electrical engineer had made a final inspection of the system and issued his written certificate of approval, and (3) MPC did not notify Jones’ employer that it had energized the electrical system in the fourth section of the Peavey building.

Jones was employed by Chester Chatham, an electrical contractor who was under contract with Peavey Electronics, Inc. to install electric wiring in a building owned by Peav-ey. Peavey was in the process of constructing a new building which was divided into four sections. Three sections consisted of new construction and the fourth section was an existing structure which was to be renovated.

MPC installed a large electrical transformer on Peavey’s property which remained the property of MPC. Electric current was to be transmitted to all four sections of the Peavey building through the transformer. Chatham installed the wiring between the MPC transformer and the Peavey building. Each section of the building was energized as the electrical work in that section was completed with MPC making the necessary connection at its transformer.

Before August 15,1974, the city electrical inspector had approved the connection of electrical service to three sections of the building and those sections had been energized. On Thursday, August 15,1974 as the wiring of the fourth section was nearing completion, Chatham requested MPC to disconnect the temporary electric service that had been serving the fourth section of the building during the renovation. Chatham also requested the city electrical inspector to make his inspection of the fourth section. The electrical inspector came to the premises on August 15, presumably to make an inspection of the fourth section; however, the inspector was not called as a witness to show that he completed his inspection and authorized energizing the electrical system in the fourth section. The only proof offered by MPC relating to its authorization to energize the system was by George East, Jr., Division Engineer for MPC. East testified that a memorandum of telephone calls was kept by Robert Davis, a staff assistant of MPC, who was not called as a witness. The memo contained the following entry: “M — 26 Peavy’s O.K. City 11:00.”

When the memo was offered for identification only, plaintiff’s attorney objected on the grounds that MPC was trying to show a custom and that the memo had not been furnished in response to a request for a production of documents.

The court questioned the witness East and after determining that Davis made the entries on the memo, overruled the objection.

Plaintiff’s attorney questioned East about the memo and elicited from the witness the fact that the memo was the sole authorization MPC obtained before it energized the system. The witness was then asked to give his interpretation of the portion of the memo quoted above. The witness answered:

The city electrical engineer called Mr. Davis and told him — or his office called Mr. Davis and told him it was okay to energize that particular service.

When the memo which had been previously offered for identification was later offered in evidence, plaintiff did not object. Although the above evidence that MPC had received oral approval from the city electrical engineer to energize the electrical system is rather weak, in view of the fact that the explanation of the memo was brought out by the plaintiff himself and no objection was made to the introduction of the memo, we conclude that the evidence is sufficient to show that MPC obtained oral approval to energize the system.

Following the telephone call on August 15, indicated in the memo, MPC energized the system sometime during the afternoon of August 16, but did not notify Chatham that it had energized the system.

Chatham testified that, on Friday afternoon, August 16, 1974, Jones was working on the switch box which had been installed. The switch box had been grounded but the cables to the box had not been secured. After Jones left work Chatham pulled the cables through the conduit and attempted to push some of the wires a little further up into the box. Chatham then placed a lock on the box to prevent theft of the copper wire. He did not remember the exact time but stated that it was dusk dark when he locked the switch box. Chatham also testified that it would not have been safe for him to push the wire into the box if the system had been energized because it would have caused conductors to come in contact with the ground, thus damaging some of the equipment. Chatham returned Monday morning about 7:30 and gave the key to the lock on the switch box to Billy Joe Boyette who, in turn, gave it to Jones. Chatham did not know that the electrical system had been energized.

The following questions and answers are Chatham’s version of what happened when Jones unlocked the box.

A. He removed the lock from the box, the box being so designed it cannot be opened without — the door cannot be opened without the switch being in an open position. He reached up and took hold of the switch to open the switch. And in so doing, one of the conductors, maybe one or more, fell against the box. There was a violent reaction of arcing. The box began to burn as if it were being burned with a torch of some sort. The door to the box was never opened. It remained closed and there was some splattering of molten metal.
Q. Molten metal was splattered?
A. Yes, sir.
Q. Did you notice whether any got on Mr. Jones’ glasses?
A. It did.
Q. What happened to Mr. Jones after that? Did it make a loud noise?
A. Indeed, it did.
Q. And what happened to Mr. Jones?
A. Mr. Jones, of course, was startled and he jumped backwards and he tripped, and he fell and struck his elbow on the floor.

Ronnie Poythress testified that he was employed by Peavey and during the late afternoon of August 16, 1974, saw a MPC truck with an arm and a bucket come to the pole where the transformer was located. He did not report what he had seen to anyone. On Monday morning, August 19, the witness became aware that something had happened to the electrical system because when he was in the west section of the building he saw sparks coming from the girders and shortly thereafter the electricians working in the building came down the aisle exiting the building.

Jones was carried to a hospital, but never lost consciousness. About 9:00 a. m. he told Chatham he felt all right but the elbow on which he fell hurt a little. He was kept in the hospital for observation and released the next day. He returned to work on Wednesday and continued to perform the same type work he was doing before the accident. Jones testified he developed a chronic neck condition which required him to give up his job as a union electrician which required travel. He obtained employment with a non-union electrical contractor so he could remain at home in order to use traction at night and be assigned work which would accommodate his neck condition.

PART I

WAS THE NEGLIGENCE OF MPC A PROXIMATE CAUSE OF JONES’ INJURY?

An ordinance of the City of Meridian setting the standard of minimum requirements for electrical installations provides in part:

No current of electricity shall be turned on to any wiring system until after the electrical inspector shall have made final inspection of all wiring and fixtures and shall have issued his written certificate of approval.

MPC concedes that a written permit was not issued by the city’s electrical inspector authorizing it to energize the system. However, it argues that because it had oral approval of the city electrical inspector to energize the system, failure to obtain a written certificate was, at most, a technical violation of the ordinance, and, in any event, was not the proximate cause of any injury to the plaintiff.

We do not agree. At the time MPC energized the electrical system, the installation of the electrical system was not complete. When it energized the system before it was complete, the act of energizing the system was the sole and proximate cause of the injury to Jones; therefore, we hold that the negligence of MPC proximately caused the injury to Jones and supports an award for damages.

PART II

WAS AN AWARD OF PUNITIVE DAMAGES WARRANTED BY THE EVIDENCE?

MPC argues that even if it was guilty of negligence, the evidence does not justify an award of punitive damages.

We have numerous cases setting forth the requirements for awarding punitive damages annotated in Mississippi Digest Damages, key number 91(3). Our cases generally hold that punitive damages are recoverable in negligence cases only when the negligence is so gross that reckless or wanton disregard of safety of others is indicated. Maupin v. Dennis, 252 Miss. 496,175 So.2d 130 (1965); Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461 (1952); Teche Lines, Inc. v. Pope, 175 Miss. 393, 166 So. 539 (1936).

We agree with the argument of MPC that punitive damages may be recovered only where the negligence is so gross as to indicate reckless or wanton disregard for the safety of others, and that an unlawful act within itself is not ground for an award of punitive damages. However, distributors of electricity are required to observe a very high degree of care in distribution of the dangerous agency of electricity. In Mississippi Power & Light Co. v. Shepard, 285 So.2d 725 (Miss.1973) we stated:

The degree of diligence which a distributor of electricity must observe in the distribution of the dangerous agency of electricity is a very high degree of care. When human life is at stake due care under the prevailing circumstances requires that everything that gives reasonable promise of preserving life must be done regardless of difficulty or expense. Moreover, the degree of care increases as the danger increases. (285 So.2d at 729).

The evidence is without dispute that MPC energized the electrical system in the building with the oral approval rather than the written approval of the inspector as required by the ordinance of the City of Meridian. The purpose of requiring a written certificate from the city electrical engineer was to prevent injuries such as the one sustained by Jones. The ordinance was designed to eliminate, so far as humanly possible, the possibility of misunderstanding information conveyed orally rather than in writing. MPC energized the system without securing written approval, thus evidencing a reckless and wanton disregard for the safety of any person who might have been working on the system.

MPC also argues that it had been the practice for a long period of time to obtain oral approval from the city electrical inspector and its failure to pick up a written certificate before turning on the electricity was a technicality which did not constitute misconduct so flagrant as to transcend mere carelessness. In effect, MPC is arguing that this procedure had been followed for such a length of time that it amounted to a business practice. Violation of city ordinances or other laws, although often repeated, does not give rise to a business practice which will insulate one from failure to abide by the ordinance. Violations are not excused because regulations have not been enforced or because particular regulations have been generally disregarded or because, in the opinion of the experts, the requirement is unwise, or because the prescribed protection offered by the regulation would be lacking in efficiency or is unnecessary.

PART III

WAS MPC ENTITLED TO A JUDGMENT BASED ON THE FIRST VERDICT OF THE JURY?

MPC also argues that the trial court was in error because it did not accept the first verdict of the jury and enter judgment accordingly, but gave the jury an additional instruction, received the second verdict, and entered judgment based on the second verdict.

The jury returned the following verdict:

We, the jury, find for the plaintiff, Robert L. Jones, and assess damages in the sum of $-0- actual damages and $15,-000.00 punitive damages, against Mississippi Power Company.

Over the objection of MPC the judge granted an additional instruction as follows:

This court instructs the jury that before you can find that plaintiff is entitled to punitive damages you must find that plaintiff would be entitled to some actual damages. Punitive damages may only be awarded in addition to actual damages.

The instruction given by the trial court was proper because punitive damages predicated on actual damages are not recoverable if no actual damages are allowed. Allen v. Ritter, 235 So.2d 253 (Miss.1970); McCain v. Cochran, 153 Miss. 237, 120 So. 823 (1929).

Two instructions pertaining to damages were granted but neither instruction expressly covers the point of law included in the instruction given by the court on its own initiative. The jury was returned to the jury room for further deliberation after which it returned the following verdict:

We the jury, find for the plaintiff, Robert L. Jones, and assess damages in the sum of $5,000.00 actual damages, and $15,000.00 punitive damages, against the Mississippi Power Company.

Section 11-7-161 Mississippi Code Annotated (1972) provides:

If the verdict is not responsive to the issue submitted to the jury, the court shall call their attention thereto and send them back for further deliberation.

In Saucier v. Walker, 203 So.2d 299 (Miss.1967) the jury returned a verdict in a suit based on the negligence of several joint tort-feasors as follows:

WE, the JURY, find for the PLAINTIFF against the following DEFENDANTS:
B. F. WALKER & B. F. WALKER,
INC. $5,000.00
RAYMOND G. BRAKEFIELD $5,000.00
CHARLES WADE PHILLIPS $5,000.00
(203 So.2d at 302)

We held in Saucier that the trial judge should have, on his own motion, ordered the jury to return and bring in a verdict in the proper form. In Saucier, we stated:

The form of the verdict in this case is ambiguous, confusing and improper, and the attorney for the appellant should have requested that the jury be returned to the jury room to reword their verdict and to bring in a verdict in the proper form. In the absence of a request from the appellant’s attorney that this be done, the trial judge on his own motion, should have ordered the jury to return to the jury room to reform and reword their verdict and to bring in a verdict in proper form. In fact this Court placed this responsibility and duty squarely on the shoulders of the trial judge when it said in Universal C.I.T. Credit Corp. v. Turner, supra,
“The trial court was under the duty to see that loss of time and the expense of the trial should not be nullified by the failure of the jury to put their verdict in proper form.” 56 So.2d [800] at 803. (203 So.2d at 303).

In Newell v. State, 308 So.2d 71 (Miss.1975) we held that a trial judge may initiate and give appropriate written instructions in addition to those requested by the litigants. In Newell v. State, 308 So.2d 68 (Miss.1975) we also held that the court could initiate and give appropriate written instructions to a jury after it had retired to consider its verdict in response to a question from the jury.

The first verdict rendered by the jury found for the plaintiff but did not assess any amount for actual damages. This was a finding that MPC was negligent. When the jury assessed punitive damages in its first verdict, this was a finding that MPC was guilty of negligence that indicated a reckless or wanton disregard for the safety of Jones.

Under our rule that punitive damages may not be awarded unless actual damages are awarded, the first verdict was ambiguous, confusing and improper. After the trial judge supplied the deficiency in the original instructions, the jury retired to consider its verdict further, and returned a verdict in the proper form. We hold: (1) MPC was not entitled to a judgment in its favor on the verdict of the jury, and (2) it was not error for the trial court to initiate and give the additional instruction under the facts of this case.

PART IV

WAS THE COMPENSATION CARRIER ENTITLED TO SHARE IN THE AWARD FOR PUNITIVE DAMAGES?

The final judgment limited repayment to State Farm of Workmen’s Compensation benefits paid by it to the actual damages awarded to Jones. It denied State Farm repayment out of the amount awarded for punitive damages.

Our statute provides for repayment to an insurer of the amount paid as compensation and medical expenses in the following language:

The acceptance of compensation benefits from or the making of a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the right of the employee or his dependents to sue any other party at law for such injury or death, but the employer or his insurer shall be entitled to reasonable notice and opportunity to join in any such action or may intervene therein. If such employer or insurer join in such action, they shall be entitled to repayment of the amount paid by them as compensation and medical expenses from the net proceeds of such action (after deducting the reasonable costs of collection) as hereinafter provided.
The commencement of an action by an employee or his dependents (or legal representative) against a third party for damages by reason of the injury, or the adjustment of any such claim, shall not affect the right of the injured employee or his dependents (or legal representative) to recover compensation, but any amount recovered by the injured employee or his dependents (or legal representative) from a third party shall be applied as follows: reasonable costs of collection as approved and allowed by the court in which such action is pending, or by the commission of this state in case of settlement without suit, shall be deducted; the remainder, or so much' thereof as is necessary, shall be used to discharge the legal liability of the employer or insurer; and any excess shall belong to the injured employee or his dependents. The employee or his dependents bringing suit against the third party must notify the employer or carrier within fifteen days of the filing of such suit. (Emphasis Supplied).

The question presented on cross-appeal has not been considered by this Court and no cases on the question from other jurisdictions have been cited.

Jones correctly states that punitive damages are not awarded to compensate a party for an injury, but are granted in the nature of punishment for the wrong doing of the defendant as an example so that others may be deterred from the commission of similar offenses, thereby, in theory, protecting the public. Standard Life Insurance Company of Indiana v. Veal, 354 So.2d 239 (Miss.1978); Snowden v. Osborne, 269 So.2d 858 (Miss.1972); Fowler Butane Gas Company v. Varner, 244 Miss. 130,141 So.2d 226 (1962); Neal v. Newburger Company, 154 Miss. 691, 123 So. 861 (1929); Hines v. Imperial Naval Store Company, 101 Miss. 802, 58 So. 650 (1911).

He then argues that an insurer is not entitled to repayment of compensation benefits paid by it from punitive damages because punitive damages are not awarded as compensation for an injury. We are not persuaded by this argument because the statute specifically provides that the insurer is entitled to repayment “from the net proceeds of such action,” and “any amount recovered by the injured employee or his dependents” shall be applied, (1) to reasonable costs of collection, (2) to reimburse the employer or carrier, and (3) any excess to the injured employee or his dependents. The statute is plain and unambiguous, and we hold the term “net proceeds” is broad enough to include any punitive damages that might be awarded. Also, the provisions directing distribution of “any amount recovered” clearly includes punitive damages.

We construed section 71-3-71 in Litton Systems, Inc. v. Murphree, 301 So.2d 850 (Miss.1974) and held that the statute means “exactly what it says; that is, that the employer and insurer are entitled to recover compensation paid.” Litton was a wrongful death action brought by the heirs of the deceased which was settled for $125,000. It was argued that Litton should not recover the $500 funeral expenses paid by it under the Workmen’s Compensation Act because the heirs could not recover funeral expenses from a third party under our wrongful death statute.

Popular words in statutes must be accepted in their popular sense and the Court must attempt to glean from the statutes the legislative intent. Dennis v. Travelers Insurance Co., 234 So.2d 624 (Miss.1970); Mississippi State Tax Commission v. Hinton, 218 So.2d 740 (Miss.1969). Where the language used by the legislature in a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion to resort to rules of statutory interpretation. Forman v. Carter, 269 So.2d 865 (Miss.1972); State v. Heard, 246 Miss. 774, 151 So.2d 417 (1963).

Section 71-3 — 71 Mississippi Code Annotated (1972) is a part of the Workmen’s Compensation Act, and one of the purposes of the Act is to insure payment to an injured employee for industrial accidents regardless of the negligence of the employer.

The Act is a departure from the common law because it precludes a common law tort action by an employee against his employer, and substitutes a no-fault compensation system to replace the common law tort action of an employee against his employer.

An employee injured in an industrial accident caused by the negligence of a third party, his employer, or his employer’s compensation carrier may file suit against the third party. If there is recovery in such suit, the employer or compensation carrier who has paid compensation benefits is entitled to recover the amount paid as compensation benefits. If an employee were permitted to collect compensation benefits in addition to the amount recovered in a suit against a third party, the employee would thereby receive double recovery as to the compensation benefits collected from his employer or the carrier. Section 71-3-71 precludes double recovery by the injured employee by providing reimbursement to the employer or carrier for compensation benefits paid the injured employee.

Following the analogy of Litton, in which we permitted repayment of funeral benefits to a self insured employer out of a settlement with the deceased’s heirs, which settlement did not include funeral expenses, by construing the words, “net proceeds” in the statute as all inclusive, it logically follows that punitive damages would also be recoverable under the same statute.

If the legislature had intended to exclude punitive damages as a source for repayment of compensation benefits paid by an insurer, it could have engrafted this exception on the statute. It did not engraft the exception, therefore, we decline.

All justices concur in Parts I and III of this opinion. Justice Walker has filed a dissenting opinion as to Part II and is joined in his dissent by Presiding Justices Smith and Robertson. Justice Bowling and Justice Lee filed dissenting opinions as to Part IV and are joined in their dissent by Chief Justice Patterson.

The majority of the justices having concurred in each of the parts of this opinion, the judgment of the trial court is affirmed in part, reversed in part and remanded for entry of a judgment in accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR ENTRY OF JUDGMENT IN ACCORDANCE WITH THIS OPINION.

All Justices concur in Parts I and III.

SMITH and ROBERTSON, P. JJ., and WALKER, J., dissent as to Part II.

PATTERSON, C. J., LEE and BOWLING, JJ., dissent as to Part IV.

BOWLING, Justice,

dissenting:

I dissent from the decision under Part IV of the majority opinion.

The interpretation of the language and legislative intent regarding Mississippi Code Annotated section 71-3 — 71 (1972), as set out in the majority opinion, in my humble opinion, is not correct. On the other hand, I think that the language of the statute clearly prohibits the workmen’s compensation carrier from being subrogated to an award of punitive damages against the third party.

It appears that there are no authorities one way or the other on this question from any jurisdiction. I am of the idea that this is for the reason that no other state legislative body has been talked into passing such an obviously prejudiced statute and one that has no justice by its terms. It is almost unbelievable to me that in 1948 our legislature was carried away to the extent of including this statute with some of its provisions in the workmen’s compensation act.

Even with the statute in question giving the carrier a free ride in collecting what it had received premiums to pay, the language of the statute appears clear that the legislature did not intend the subrogation right to include a claim on the punitive damage part of a judgment against a third party. The statute states in part:

The acceptance of compensation benefits from or the making of a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the right of the employee or his dependents to sue any other party at law for such injury or death, but the employer or his insurer shall be entitled to reasonable notice and opportunity to join in any such action or may intervene therein. If such employer or insurer join in such action, they shall be entitled to repayment of the amount paid by them as compensation and medical expenses from the net proceeds of such action (after deducting the reasonable costs of collection) as hereinafter provided.
The commencement of an action by an employee or his dependents (or legal representative) against a third party for damages by reason of the injury, or the adjustment of any claim, shall not affect the right of the injured employee or his dependents (or legal representative) to recover compensation.(Emphasis ours)

As stated in the majority opinion, the reason for and the circumstances under which a jury may return a verdict against a defendant for punitive damages are clear. No one can argue that such a verdict amounts to “damages” received by the injured plaintiff. The punitive damage award is solely in the nature of punishment for a wrong done and it just so happens that the money for that punishment does not go to the state, a church, an orphanage, or any other charitable entity, but is paid to the other party in the controversy.

As hereinbefore stated, there are no cases from any jurisdiction on this question. The majority opinion attempts to base its decision on Litton Systems, Inc. v. Murphree, 301 So.2d 850 (Miss.1974). A reading of that opinion clearly shows that it has no application here. The recovery of the controversial funeral expenses by the plaintiff (injured employee) clearly was “damages” sued for in the claim “for the injury or death of an employee” as provided for by the statute. Cases are further cited regarding the right of the compensation carrier to receive in subrogation the amount received by the injured person for pain and suffering, against a third party, when there is no provision in the compensation law to pay for those elements. The distinction again in those cases is that the injured person’s claim against the third party “for the injury” included a claim for compensatory pain and suffering damages and according to the statute is “damages” by reason of the injury as above quoted.

I further point out that in accord with the decisions of this Court in tort actions, including the claim for injury or death brought by the employee or his representative against a third party, the lower courts instruct juries to bring back separate verdicts — one for compensatory damages (including pain and suffering), and a separate verdict for punitive damages, which by no stretch of the imagination could be called “damages” to the injured employee or the representative of a deceased employee.

With all respect, I cannot see any justification, legally, or otherwise, for permitting the compensation carrier to be subrogated to funds received by the injured employee or the representative of a deceased employee that have nothing whosoever to do with the payments made by the compensation carrier under its contractual obligation executed for specific premiums under specific coverages.

PATTERSON, C. J., joins in this dissent.

WALKER, Justice,

dissenting:

I feel constrained to dissent from the holding of the majority in Part II of the opinion upholding the award of $15,000 punitive damages.

It is an elementary principle of law that punitive damages may be recovered only when the negligence complained of is so gross as to indicate a reckless or wanton disregard for the safety of others and that the violation of a municipal ordinance alone, absent other circumstances, is not grounds for an award of punitive damages. Furthermore, the fact that distributors of electricity are required to observe a very high degree of care in its distribution does not per se warrant the imposition of punitive damages because of some negligent act of the Power Company.

In the case sub judice, the sole ground of negligence relied upon by appellee was the failure of the Power Company to obtain written approval of the city inspector as required by the ordinance of the City of Meridian before energizing the electrical system to the Peavey building. Oral approval to energize the building was obtained as had been the practice for many years. I would agree without hesitation that if the Power Company had failed to obtain any approval to energize the Peavy electric system that it would have been guilty of reckless and wanton disregard for the safety of others who might be working on the system. However, I am unable to understand the majority’s reasoning or to fathom its logic in reaching the conclusion that failure to obtain written approval as opposed to oral approval constituted such gross negligence as to evince a reckless or wanton disregard for the safety of others.

Punitive damages are not favored in the law and should not be allowed except in the rarest of cases. The rule laid down by the majority in Part II of the Court’s opinion to the effect that obtaining oral approval from the City to energize a building’s electrical lines instead of written approval amounts to such gross or wanton negligence and a disregard for the safety of others as to warrant the allowance of punitive damages is so unrealistic that it will not withstand the test of time.

SMITH and ROBERTSON, P. JJ., join this dissent.

LEE, Justice,

dissenting in part:

I do not think the compensation carrier is entitled to reimbursement out of punitive damages received, and I dissent as to Part IV of the majority opinion. Mississippi Code Annotated Section 71-3-71 (1972) provides: “ . . . shall not affect the right of an employee or his dependents to sue any other party at law for such injury or death . . If such employer or insurer join in such action, they shall be entitled to repayment of the amount paid by them as compensation and medical expenses from the net proceeds of such action . . . (Emphasis added)

It is apparent that the legislature, in providing reimbursement to the employer-carrier for compensation and medical expenses paid, was referring to actual damages and not punitive damages. Net proceeds of such action refers to the suit for injury or death (actual damages). Likewise, any amount recovered by the injured employee relates to the suit for injury or death (actual damages). If the legislature had intended to include punitive damages for reimbursement to the employer-carrier, it could have done so by simply providing that reimbursement be made from all actual and punitive damages obtained in such action. It did not do so, and I would not include it (punitive damages) for reimbursement.

      . Section 71-3-71 Mississippi Code Annotated (1972).

      . This argument was apparently based on our holding in Thornton v. Insurance Co. of North America, 287 So.2d 262 (Miss.1973) where we held that heirs could not recover for funeral expenses in a wrongful death action because a claim for funeral expenses would be an asset of the estate of the decedent recoverable only in a suit by the personal representative of the decedent.


text:
    Allen Graham COLLINS v. Bonnie G. COLLINS.
    No. 51151.
    Supreme Court of Mississippi.
    May 2, 1979.
    Joe M. Buchanan, Indianola, for appellant.
    Noel D. Crook, Ruleville, Jane R. McWil-liams, Greenville, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.