author: PER CURIAM.

text:
    Charlie HOBDY v. CITY OF FLORALA.
    4 Div. 332.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.

      Earl V. Johnson, Andalusia, for appellant.
    J. Allen Cook, Andalusia, for appellee.
   PER CURIAM.

This appeal is from a conviction of the appellant in the circuit court for violation of an ordinance of the City of Florala, with a fine of $100 assessed against the appellant by the jury with a sentence of thirty-seven days at hard labor for the City of Florala, by reason of the appellant’s failure to pay the fine and costs.

Upon the conclusion of the entire testimony the appellant’s motion to exclude the testimony and for a directed verdict was overruled by the court. The grounds of the motion relied upon for a reversal are set out in the assignment of errors filed by appellant.

Appeal from a conviction for the violation of a city ordinance is quasi-criminal in nature, subject to the rules governing civil appeals and review by this court is limited to errors assigned and argued in appellant’s brief. Jones v. City of Decatur, 53 Ala.App. 470, 301 So.2d 235.

The assignments of errors are argued together and are directed generally to the failure of the City to properly apprise the appellant in its complaint of the offense charged and the further failure of the City to show a violation of an ordinance described in the complaint by reason of the failure to offer proper proof.

The complaint filed by the City in the Circuit Court along with Exhibit A thereto is set out as follows:

“COMPLAINT
Count One
Comes the City of Florala, Alabama, a municipal corporation, by its Solicitor and complains that Charlie Hodby within twelve (12) months before the beginning of this prosecution and within the corporate limits of the City of Florala, Alabama, did on, to-wit, the 13th day of July, 1974, operate an automobile on the public streets of Florala, Alabama, while intoxicated, contrary to and in violation of an ordinance reflected by Ordinance 417 of the Code of Ordinances of the City of Florala, Alabama. A copy of such ordinance is attached hereto, marked Exhibit “A” to this complaint and made a part hereof.
s/ J. Allen Cook
Solicitor for the City of Florala, Alabama, a municipal' corporation.”
* * * * * *
“EXHIBIT A
AN ORDINANCE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FLORA-LA, ALABAMA, AS FOLLOWS:
1. It shall be unlawful and a violation of this ordinance, hereinafter referred to as the “adoption ordinance”, for any person knowingly to commit within the corporate limits of the City of Florala, Alabama, or within the police jurisdiction thereof any act or acts which constitutes or constitute a misdemeanor under the laws of the State of Alabama, or knowingly to violate any criminal statute of the State of Alabama, the violation of which constitutes a misdemeanor under the laws of the State of Alabama, provided that such act, acts or violations are not violations of previous ordinances of this City now in force and effect, it being declared that when an act, or acts constitute a violation of a previous ordinance of this City now in force and effect, such previous ordinance shall be applied to all prosecutions.
2. This adoption ordinance adopts as a code of the City of Florala, Alabama, the laws of the State of Alabama now in force and effect as to all misdemeanors thereunder which are not a violation of an existing ordinance of this City, it being specifically declared that all such existing ordinances now in effect remain in full force and effect. The laws of the State of Alabama hereby adopted are contained in the Code of Alabama, 1940, and official additions and supplements thereto, and acts of the legislature of the State of Alabama, located at the City Hall of this City and there available for public inspection.
3. Any person violating this ordinance shall on conviction for each violation be punished by a fine of not more than $100.00 or imprisonment at hard labor for not more than six months, one or both, provided that in no event shall a sentence be imposed which is greater than the maximum provided for by the law of the State of Alabama applicable to the offense committed.
4. This ordinance shall be effective upon publication in the Florala News upon May 30, 1957.
ADOPTED AND APPROVED THIS 14TH DAY OF MAY, 1957.
/s/ A. H. LURIE, Mayor
Authenticated :
/s/ LUCILLE COX, City Clerk”

It appears upon the face of the complaint that it is based on Ordinance 417 of the Ordinances of the .City of Florala, Alabama, and in the complaint it is alleged that “Exhibit A” is a copy of this specific ordinance.

There are State statutes applying to a few cities in the State of Alabama, requiring Appellate Courts to take judicial note of the ordinances or by-laws of certain cities but as far as we know or have been advised, there is no such statute applying to the City of Florala. This being so it was incumbent upon the City not only to plead' but also to prove the ordinance upon which they sought to convict the appellant for a violation thereof. Jacobs v. City of Prichard, 46 Ala.App. 497, 243 So.2d 769. We think there is a failure of proof in two respects in the case made by the city against the appellant.

First, there was no proof whatsoever of the existence or violation of City Ordinance 417, as alleged in the complaint. Presumably, there existed an ordinance book or collection of ordinances which might have been properly introduced in support of this allegation in the complaint but since no proof was offered, this court, as said above, does not take notice of the existence of such an ordinance.

Secondly, the alleged ordinance introduced as Exhibit A after providing that it is a violation of a law for a person to commit an act in the City of Florala, which would constitute a misdemeanor under the laws of Alabama, provides further if such act or acts violate a previous ordinance of the city then in force and effect such previous ordinance would govern the prosecution of such violation and further it is specifically declared that all ordinances then in effect remain in effect in full force.

We are of the opinion that the burden was on the City to prove beyond a reasonable doubt that the specific charge on which appellant was prosecuted did not fall under the influence of one of the exceptions above referred to which are set out in the ordinance, Exhibit A. It further seems that it would be impossible for a person charged with a violation of Exhibit A to be apprised of whether the violation was of an offense set out in the criminal statutes of the State of Alabama, and covered by the adoptive ordinance, or a violation of some previous ordinance of the City of Florala still in existence.

Due process requires that a person be apprised of a criminal act for which he is being charged and prosecuted.

In addition to his oral motion for a directed verdict made at the close of all the evidence, the appellant also moved in writing for the affirmative charge. [See SC Rule 52(e)] .

The judgment below is reversed and the cause is remanded for a new trial.

Reversed and remanded.

All the Judges concur.

      . “No appeal shall be dismissed, * * * where the * * * record * * * (e) reveals a failure to assign errors on appeal cases from convictions of violation of town and city ordinances, * *


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    In re Charlie HOBDY v. CITY OF FLORALA. Ex parte CITY OF FLORALA ex rel. J. Allen COOK.
    SC 1552.
    Supreme Court of Alabama.
    Nov. 26, 1975.
    J. Allen Cook, Andalusia, for petitioner.
    No appearance for respondent.
   BLOODWORTH, Justice.

Petition of the City of Florala by its Attorney, J. Allen Cook for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hobdy v. City of Florala, 56 Ala.App. —, 323 So.2d 421.

Writ denied.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: MADDOX, Justice.

text:
    H. I. HOLK and Eula A. Holk v. Edna E. SNIDER.
    SC 1428.
    Supreme Court of Alabama.
    Feb. 5, 1976.
    Rehearing Denied Feb. 20, 1976.
    Wilkins & Bankester, Bay Minette, for appellants.
    T. M. Brantley, Bay Minettee, for appel-lee.
   MADDOX, Justice.

This is the second time this case has been here.

The Hoiks, as purchasers, sought performance of an agreement to purchase a piece of land from appellee, Mrs. Snider. The circuit court, in the first trial, denied specific performance. The Hoiks appealed.

On appeal, this Court concluded that the Hoiks were entitled to specific performance. Holk v. Snider, 294 Ala. 318, 316 So.2d 675 (1975). Even though there was some disagreement on the Court as to whether the agreement was an accepted option to purchase or a bilateral executory contract, this Court nevertheless held that the Hoiks were entitled to have specific performance. The case was reversed and remanded.

On remand, the trial judge again denied specific performance, and in his decree stated :

“ * * * This court is of the opinion that its original decision was sound and equitable. This Court does not feel bound by the decision of the Supreme Court. The Appellate Court’s decision does not meet the requirements of Title 13, Section 14, of the Code.”

Title 13, § 14, Code of Alabama 1940 (Recomp.1958 as amended 1969), provides:

“When concurrence of five judges, and when of four sufficient. — The concurrence of five judges in the determination of any cause shall be necessary and sufficient thereon, except when, by reason of disqualification, the number of judges competent to sit therein is reduced to seven or to six, in which case such reduced number shall constitute the court; and the concurrence of four judges shall suffice.”

Granted, the resolution of an issue must be concurred in by the requisite number of judges, Phoenix Insurance Co. v. Stuart, 289 Ala. 657, 270 So.2d 792 (1972), but that principle has no application here, because there was a concurrence of five judges in the determination that specific performance was warranted. This is the law of the case and was binding upon the trial court. This case is reversed and the cause is remanded with directions that the court enter an order in accordance with this opinion.

Reversed and remanded with directions.

HEFLIN, C. J., and MERRILL, BLOODWORTH, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.


author: MERRILL, Justice.

text:
    R. N. KELLY COTTON MERCHANT, INC. v. Charles T. COX, Jr.
    SC 1368.
    Supreme Court of Alabama.
    Jan. 9, 1976.
    Rehearing Denied Feb. 20, 1976.

      Wm. Bew White, Jr., Hobart A. Mc-Whorter, Jr., A. H. Gaede, Jr., Birmingham, for appellant.
    Thomas Reuben Bell and 'Donald W. Lang, Sylacauga, for appellee.
   MERRILL, Justice.

R. N. Kelly Cotton Merchant, Inc. (hereinafter Kelly Co.) obtained a judgment amounting to $16,000.00 against Charles T. Cox, Jr. in a contract action. Kelly Co. appealed, contending that the judgment was inadequate under the facts. We agree.

In the spring of 1973, appellee Cox, a cotton ginner, seller of seed and fertilizer and cotton handler, contracted with a number of cotton farmers to buy their 1973 cotton crops. Cox also contracted to sell this cotton to certain mills and brokers, including Kelly Co., and Kelly Co. subsequently contracted to sell the cotton to Hartwell Mills.

By the autumn of 1973, the price of cotton had more than doubled. Naturally, many cotton farmers were not eager to sell their cotton to Cox at the contract price of 340 to 360 per pound. On September 28, 1973, Cox filed a complaint seeking to enjoin the cotton farmers from breaching the contracts wherein they were obligated to sell him their 1973 cotton crops. Cox also sought a declaratory judgment against Kelly Co. and the cotton mills as to his (Cox’s) liability under the contracts wherein he had agreed to sell them cotton at a stipulated price.

On October 8, 1973, the trial court granted a preliminary injunction against the cotton farmers who had contracted to sell their cotton to Cox.

On October 26, 1973, Kelly Co. and the cotton mills filed an answer and counterclaim against Cox seeking (1) a declaration that the written contracts between them and Cox were binding and enforceable and (2) damages, in case Cox did not deliver the specified number of bales of cotton. On November 5, 1973, they filed an amended answer and counterclaim against Cox, asking that he be enjoined from breaching his contracts with them. The hearing on the injunction was had on November 14, 1973. The testimony adduced at the previous hearings was made a part of the record.

On December 4, 1973, the trial court granted a preliminary injunction against Cox. But despite this injunction, Cox claimed that he was unable to deliver all of the cotton as specified under his contracts with the brokers and the mills.

The trial court severed Kelly Co’s, counterclaim from that of the cotton mills’ [Kelly was severed because it was not registered to do business in this state], and th ecase proceeded to trial on November 12, 1974. The findings of the trial court, in pertinent part, are as follows:

“That Cox entered into three contracts to ship Kelly a total of 1800 bales of cotton. Cox fulfilled Contract No. 743, covering 200 bales. Contract No. 742 covered 1300 bales at 360 per pound, and Cox shipped Kelly 920 bales, leaving a shortage of 380 bales on this contract. Contract No. 744 covered 300 bales at a price of 340 per pound. No cotton was shipped under this contract. Thus, of the total of 1800 bales contracted for, Cox shipped Kelly 1120 bales and was short 680 bales. Kelly had the burden of proof as to the amount of his damages sustained as a result of this breach by Cox. * * * ”

Neither side seriously disputes this part of the decree and we agree that these figures should be the basis of computation of damages. The error is in the next part of the decree which follows :

“ * * * Having heard the evidence in the trial, and having carefully reviewed same since the trial, the Court is reasonably satisfied that Kelly is still obligated to deliver to Hartwell Mills 680 bales of cotton at the price contracted for. The Court is not reasonably satisfied that Kelly actually ‘covered’ the cotton called for in his contracts with Cox. There was no evidence offered to show the market price of cotton at the time when Kelly learned of the breach. The only evidence as to the price of cotton as of the date of the trial was 400 per pound, which the Court must necessarily use in assessing Kelly’s damages. The Court thus concludes that Kelly’s damages amounted to the sum of $16,600, and that Kelly is entitled to this amount plus interest from the date of the breach

We cannot agree with the trial court’s conclusions that led to the $16,600.00 judgment in this case. We think the trial court erred in three instances which require that the judgment be reversed.

First, we cannot agree that Kelly Co. did not cover the 680 bales of cotton it was obligated to deliver to Hartwell Mills. Cover is operationally defined in Code of Alabama, Tit. 7A, § 2-712(1) (Recomp. 1958) (Supp.1966), which states as follows :

“(1) After a breach within the preceding section [§ 2-711, dealing in pertinent part with buyers’ remedies when the seller fails to deliver] the buyer may ‘cover’ by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution of those due from the seller.”

There is ample evidence in the record to support the conclusion that Kelly Co. did cover the 680 bales of cotton which Cox failed to deliver to Kelly Co. An example of this is found in the direct testimony-of Mr. R. N. Kelly, President of Kelly Co., on direct examination:

“Q. Did R. N. Kelly Cotton Merchant, Inc. ship in the year 1973 680 bales or more to the Hartwell Mills in Georgia to replace the cotton which is the subject of Exhibits C-l, D-l and E-l [Contracts numbered 742, 743 and 744 evidencing the sale of cotton between Kelly Co. and Cox] which was not delivered?
“A That’s right.”

In the course of the same testimony, we find as follows:

“Q And during 1973 R. N. Kelly Cotton Merchant, Inc. did purchase at least 680 bales to replace the cotton required under the contracts ?
“A Yes, sir.
[Objection by Messrs. Bell and Lang]
“Q Would you answer that?
“A Yes, sir. I bought cotton for them.”

These excerpts from Mr. Kelly’s testimony, along with other evidence found in the record are supportive of a conclusion that Kelly Co. did cover the 680 bales of cotton contracted to Hartwell Mills. The evidence shows that this cotton which Kelly Co. covered was the 680 bales it would have received from Cox but for Cox’s breach of his contracts with Kelly Co.

Had the trial court been correct in its finding that Kelly Co. had not “covered” the cotton contracted for with Cox, then the remainder of the decree would have been correct. But in view of our holding that Kelly Co. did cover, that automatically made the computation part of the decree erroneous. That is the second phase of the decree.

The trial court found that there was no evidence of the market price of cotton at the time of Cox’s breach and, therefore, chose to use 40?! per pound, a figure it termed “ * * * The only evidence as to the price of cotton as of the date of the trial * * * ” as a measure of damages. The court was correct in its determination that there was no evidence in the record of the market price of the cotton on the date of Cox’s breach of the contract. But market price is not necessary in order to determine damages awarded to a party who has covered. The statute governing damages available in instances of cover is Code of Alabama, Tit. 7A, § 2-712(2), (Recomp.1958) (Supp.1966), which states as follows:

“(2) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages as hereinafter defined (section 2-71S), but less expenses saved in consequence of the seller’s breach.”

There is uncontradicted evidence in the record of the average price Kelly Co. paid for the covered cotton. This cover price, designated in the statute, provides a fairer measurer of damages to Kelly Co. than that erroneously set by the trial court. For evidence of the cost of cover, we turn again to Mr. Kelly’s testimony, which is as follows:

“Q And what was the average price per pound charged R. N. Kelly Cotton Merchant, Inc. for that replacement cotton [the covered cotton] ?
[Objection by Mr. Lang]
“A What we actually paid was 78.46.
“Q Put decimal points in there.
“A Seventy-eight, point forty-six cents a pound. * *”

And later in the same testimony, we find the following:

“Q Did you pay 78.46 a pound on the average for it [cotton covered to Hart-well Mills] ?
“A On the average, yes, sir.”

The testimony of Mr. Kelly as to the average cost of cover more nearly reflects the actual damages sustained by Kelly Co. That cost is a necessary factor in establishing damages sanctioned by the Code in situations where the buyer has invoked the remedy of cover.

Specific evidence as to the cost of cover is not necessary; a mere average, to which Mr. Kelly testified, is adequate. Alabama’s Commercial Code rejects the theory that damages must be calculable with mathematical accuracy. The Official Comment to Tit. 7A, § 1-106 (Recomp. 1958) (Supp.1966), suggests: “ * * * Compensatory damages are often at best approximate: they have to be proved with whatever definiteness and accuracy the facts permit, but no more.” Testimony provided by Mr. Kelly met this standard. Therefore, we hold that the trial court erred in its application of the 40?! per pound price in order to award damages to Kelly Co.

In the final instance, by basing its award of damages on the two erroneous conclusions as to cover and damages awarded for cover drawn by the trial court, that court’s final calculation of damages totaling $16,600.00 and interest was also in error. Rather than calculating damages at a price of 40^ per pound for the 680 bales (each bale containing 500 pounds) that Kelly Co. had to cover, the court should have used the difference between the cost of cover (78.46?! per pound) and the contract price, plus incidental and consequential damages. The cause is remanded for the calculation of damages and the rendering of a judgment in accordance with this opinion.

Reversed and remanded with instructions.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, AL-MON, SHORES and EMBRY, JJ., concur.


author: SUMMERS, Justice.

text:
    Katie Pickens, wife of/and Jesse PICKENS v. ST. TAMMANY PARISH POLICE JURY.
    No. 56146.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      J. Michael Cumberland, Badeaux, Discon, Cumberland & Barbier, New Orleans, for plaintiffs-applicants.
    Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for defendant-respondent.
   SUMMERS, Justice.

Early on the morning of June 29, 1970 Richard B. Ellis was driving his pickup truck on Ben Thomas Road on his way to work at the plant of Delta Roofing Mills in St. Tammany Parish. The road was narrow and blacktopped. He was driving below 30 miles per hour. As he approached the vicinity of the mill, he suddenly saw a ditch or excavation across the road. He slammed on the brakes, but, nevertheless, as he crossed the ditch, due to its depth, the truck bolted and he bounced so that his head hit the roof of the truck. By accelerating the engine he was able to pull out of the hole. There were no barricades or signs to warn motorists of the excavation. Fearful that someone would be hurt, when he arrived at the plant he had the bookkeeper there “call the police juryman about the hole.”

Soon thereafter, about 6:45 a. m., Katie Pickens was driving her husband Jesse to work in their 1966 Chevrolet pickup truck. As they proceeded at 25 to 30 miles per hour along Ben Thomas Road near the Delta Roofing Mill, which was near the Slidell Felt Mills where Jesse worked, Katie suddenly observed an open excavation ahead spanning the road from one side to the other — the identical excavation Ellis had just traversed with difficulty. She applied the brakes in an effort to avoid running into the opening, but it was too late. The front wheels of the truck ran into and remained fast in the excavation bringing the truck to an abrupt and violent stop, precipitating Katie against the steering wheel and Jesse into the windshield.

When they recovered from the impact, it was apparent to the Pickens that the two front wheels were stuck in the hole. So firmly implanted were the wheels that the truck could not be driven forward or in reverse under its own power. Jesse therefore jacked the front wheels up and filled the hole beneath the wheels with debris until the truck was lifted enough to be backed away. The excavation was for installation of an 18-inch drain culvert. In positioning the jack to raise the front wheels, Jesse placed it on the culvert which, at that point, was visible and uncovered. He estimated the top of the culvert to be eighteen inches below the road surface.

After extricating the truck from the hole in the road, the Pickens reported the accident to the sheriffs office in Slidell. The sheriff’s staff, in turn, called Trooper Allen of the State Police, who followed the Pickens couple to the site of the accident. When they arrived employees of the police jury were there filling the excavation. Because the filling was practically complete, Allen was unable at that time to estimate the depth of the ditch before the filling began.

■ As a result of the impact from the sudden stopping of their truck, Jesse and Katie Pickens received injuries requiring hospitalization and treatment by their physician. They instituted suit against the Police Jury of St. Tammany Parish to recover the damages they incurred. The parish answered and denied liability.

The trial judge held that the Pickens had met the burden of proof, finding that a serious depression existed across the road which Katie Pickens approached at a reasonable rate of speed until she observed it but could not stop. Both were held to be free of contributory negligence. Accordingly, the trial judge awarded $750 to Katie for personal injuries and $4,894.47 to Jesse for personal injuries and loss of wages, and for medical expenses and hospital bills for him and for Katie. On appeal to the First .Circuit the judgment was reversed. 308 So.2d 361. Certiorari was granted on application of Jesse and Katie Pickens. 311 So.2d 261.

This decision is based upon the premise that the Police Jury of St. Tammany Parish is charged with the function of providing and maintaining highways, streets and roads not provided or maintained by the State Department of Highways, or municipalities within the parish, and that a dereliction in this responsibility should be borne by the parish rather than the individual who suffers injury thereby. The rule derives from the fact that public ways are strictly under the control of public authorities, and the individual has no adequate means of . control or maintenance over these streets which are indispensable to the daily conduct of his affairs. It is a result dictated by reason. A parish should not have exclusive authority over its roads without commensurate responsibility when these roads are a matter of such paramount importance to the business and social intercourse of its citizens.

The rule has been well stated in Clinton v. City of West Monroe, 187 So. 561 (La. App.1939), where a municipal corporation was involved:

“A municipality may be held in damages to those injured because of its failure to keep its streets and sidewalks in a reasonably safe condition for travel. If this were not true, persons who desire to use such streets and sidewalks could never safely assume that they are in such condition to warrant travel thereon. If so used, they would have to keep their eyes constantly glued on the surface before them and at night carry a lighted lamp for protection against injury. Holes, pits and excavations in the streets or sidewalks could be left by the agents or servants of the municipality, resulting in death or severe bodily injury to its citizens, with no recourse for damages by anyone, but for the exception to the rule now so well recognized in this state. The jurisprudence of the state is replete with cases enforcing the principle embodied in the exception and condemning municipalities in damages to persons injured because of bad repair of their streets or sidewalks. O’Neill v. City of New Orleans, 30 La.Ann. 220, 31 Am. Rep. 221; Lemoine v. City of Alexandria, 151 La. 562, 92 So. 58, and cases therein cited; Holbrook v. City of Monroe, La.App., 157 So. 566; Robinson v. City of Alexandria, La.App., 174 So. 681; McQuillin on Municipal Corporation, Volume 7, ¶ 3013, pp. 268, 269.” See also Lemoine v. City of Alexandria, 151 La. 562, 92 So. 58 (1922).

The same rules apply to parishes. A parish police jury, however, is not an insurer of travelers upon its highways, roads and streets. The duty owed is to exercise reasonable care to keep these public ways in such condition that travelers who are prudent and ordinarily careful will not be exposed to injury, day or night. Louisiana’s jurisprudence on the subject is built upon the theory that fault is a prerequisite to responsibility in these cases. E.g. Goodwyn v. City of Shreveport, 134 La. 820, 64 So. 762 (1914) and Suthon v. City of Houma, 146 So. 515 (La.App.1933).

Although a parish is not an insurer of the safety of travelers on its highways, roads and streets and it must keep these ways reasonably safe, they need not be maintained in perfect condition to render the parish free from liability in damages. Defects which are not in the nature of traps, or from which danger cannot reasonably be anticipated, provide no actionable negligence. Liability will only be imposed when the defect is dangerous or calculated to cause injury. Arata v. Orleans Capitol Stores, 219 La. 1045, 55 So.2d 239 (1951); White v. City of Alexandria, 216 La. 308, 43 So.2d 618 (1949).

There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of 'each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence? Arata v. Orleans Capitol Stores, supra; cf. Nessen v. City of New Orleans, 134 La. 455, 64 So. 286 (1914); Allen v. Town of Minden, 127 La. 403, 53 So. 666 (1910).

In addition to the requirement that the condition which caused the injury must have been dangerous or calculated to cause injury, the cases have recognized generally that the parish or municipality must have had actual notice of the condition or that its existence continued over a period and under such circumstances that in the exercise of due diligence the parish or municipality would have had notice. Arata v. Orleans Capitol Stores, supra. See also St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964); Smith v. City of New Orleans, 135 La. 980, 66 So. 319 (1914); Allen v. Town of Minden, 127 La. 403, 53 So. 666 (1910); McCormack v. Robin, 126 La. 594, 52 So. 779 (1910); Weinhardt v. City of New Orleans, 125 La. 351, 51 So. 286 (1910); Lorenz v. City of New Or leans, 114 La. 802, 38 So. 566 (1905); Labarre v. City of New Orleans, 106 La. 458, 30 So. 891 (1901); Blume v. City of New Orleans, 104 La. 345, 29 So. 106 (1900); O’Niell v. City of New Orleans, 30 La.Ann. 220 (1878).

This latter rule, however, requiring notice to the parish, is inapplicable to a case where the defect or dangerous condition is attributable to negligent acts of the parish or its employees. It is only where the negligence relied on is the failure of the city to remove an obstruction or to repair a defect in the street, not caused by its own act or neglect, that the question of notice of obstruction or defect is an essential element. If the defective condition is due to the act of the parish itself, or its acts or negligence in connection with the acts of others, or to the acts of others as of its contractors or employees, no notice of any kind, either actual or constructive, is necessary. Mockosher v. City of Shreveport, 155 So.2d 438 (La.App.1963); McQuillin, The Law of Municipal Corporations ,¶ 54.104 (3d ed.)

The evidence is clear that the excavation for the culvert was made upon the authority of the police jury and under the supervision of a member of the police jury. Defense to this suit, as it is understood, is predicated upon the proposition that, although the parish did make the excavation, it followed the usual practice and filled the excavation, waiting until later to resurface with asphalt after the filling had a chance to pack; however, the condition of the excavation deteriorated at some time thereafter and the parish received no notice in time to remedy the dangerous character of the excavation.

The police juryman who supervised the excavation and laying of the culvert was unable to recall when the work was done. He could testify only that he supervised the installation and felt certain it had been done in the usual manner. The fact remains that the excavation did constitute a very dangerous condition, and there were no barricades or warnings to motorists.

It is to be inferred that Richard B. Ellis and Jesse Pickens traveled this road often in going to and from their work. Pickens, however, had not traveled the road for about four days. There is no evidence to show when Ellis last traveled the road, but it may logically be inferred that the defect was the result of a recent excavation which was not properly filled. The parish presented no evidence to refute the evidence that the work was recent.

Another inference which may be drawn is that the parish employees filled the excavation properly so that no dangerous condition was created, but the work deteriorated and its dangerous character developed within a period of two or three days due either to settling caused by a loose fill, rain, or other factors, or by packing as a result of the traffic. Even this latter more favorable inference does not exonerate the parish of negligence. Its employees and the supervisor of the work knew, or should have known, that the unpacked fill would settle from one cause or another and they should have taken precautions to warn motorists traveling the road and make more frequent inspections.

These facts convince us that the defense of the parish is not well-founded. Katie Pickens was driving carefully. The excavation was dangerous. The parish was chargeable with knowledge of the work performed by the police juryman and parish employees. No notice to the parish of the dangerous defect in the road was required when the excavation was made by the parish. Its failure to place proper barriers and warning signs was imprudent. The work was of such a nature that more frequent inspections were required to ascertain its condition. These were not made. The parish is liable for the damages to Jesse and Katie Pickens. Therefore, the Court of Appeal erred in rejecting their claims. The record adequately supports the damage award of the trial judge.

For the reasons assigned, the judgment of the Court of Appeal is reversed, and the judgment of the trial court is reinstated and made the judgment of this Court.


author: MARCUS, Justice. DIXON, Justice

text:
    Succession of Gilbert Spence WALDRON.
    No. 56156.
    Supreme Court of Louisiana.
    Nov. 3, 1975.

      Fred H. Belcher, Jr., McCollister, Belch-er, McCleary & Fazio, Baton Rouge, for Katherine L. Waldron.
    Alton T. Moran, Baton Rouge, for Thelma Denn Waldron.
   MARCUS, Justice.

Gilbert Spence Waldron died testate on February 23, 1973, survived by his widow, Mrs. Katherine L. Waldron, and their only child, Mrs. Thelma Waldron Denn. The decedent’s estate consisted solely of community property. The dispositive portion of his olographic will, valid in form, provided as follows:

Second, I will and bequeath unto my wife, Katherine L. Waldron, the usu-fruct of my entire estate for life, in addition to the naked title to all other property that I own at my death, subject tc and less that portion that under the law my daughter Thelma is entitled to inherit as her legitime or forced portion.
In case my wife predeceases me, in that event, I will and bequeath unto my grandchild Phillip Anthony Parrino, Jr. Five Hundred (500.00) Dollars, Cash, and unto my daughter, Thelma Alice Parrino, only that portion of my estate that under the law she is entitled to inherit as a forced portion, it being my intention to limit her inheritance to only her legitime. The balance of my estate, in case my wife predeceases me, I will and bequeath unto my grandchildren, George Frederick Denn and Thomas James Denn, in equal proportion, share and share alike.

After the will was probated, the testator’s daughter filed suit to reduce the usufruct in favor of her mother, alleging that it impinged upon the forced portion. The trial court rendered judgment in favor of defendant, and the court of appeal reversed. 308 So.2d 364 (La.App. 1st Cir. 1975). Upon defendant’s application, we granted certiorari. 313 So.2d 245 (La.1975).

In the portion of the will set forth above, the testator bequeathed to defendant the usufruct of his entire estate for life, as well as the naked ownership of the disposable portion, which was two-thirds of the estate. La.Civil Code art. 1493 (1870). He left to plaintiff, his only child, the naked ownership of the forced portion. These dispositions, in addition to his twice-repeated desire that his daughter’s inheritance be restricted to her legitime, make quite evident his intention to leave to his wife the maximum amount allowed under Louisiana law.

Our law generally mandates that the forced heir inherit the legitime in full ownership. La.Civil Code arts. 1493, 1494, 1710 (1870). To this general rule there is an exception in article 916 of the Civil Code, which, prior to its amendment in 1975, provided as follows:

In all cases, when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed by last will and testament, of his or her share in the community property, the survivor shall hold a [in] usufruct, during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue. This usufruct shall cease, however, whenever the survivor shall enter into a second marriage.

We have held that the legal usu-fruct authorized by article 916 does not apply only in intestate successions. The testator may confirm in his will the usufruct that the surviving spouse inherits by operation of law under article 916. Succession of Chauvin, 26 La. 828, 257 So.2d 422 (1972). Additionally, he may donate mor-tis causa the disposable portion of his estate to her in full ownership. Succession of Moore, 40 La.Ann. 531, 4 So. 460 (1888). In practical effect, the surviving spouse is permitted to cumulate the legal usufruct in her favor with donations mor-tis causa that do not exceed the disposable portion. The testator is not permitted, however, to burden the legitime with a usufruct beyond the period authorized by Civil Code article 916. La.Civil Code art. 1710 (1870); Chauvin, supra. Hence, the legal usufruct, even when confirmed in the testament, terminates by operation of law upon the surviving spouse’s remarriage.

In the case sub judice, defendant has not remarried, plaintiff was issue of her marriage with the decedent, and the decedent’s entire estate consists solely of community property. Clearly, then, if Mr. Waldron had died intestate a legal usufruct in defendant’s favor would have attached to his entire estate. Or, if he had le-ft the disposable portion in full ownership to his widow and had merely confirmed the article 916 usufruct, a legal usufruct would have attached to the forced portion. The testator, however, did not merely confirm the legal usufruct, which, as stated above, ends upon remarriage; he provided that the usufruct should last for life. The question for determination is whether the testator, in attempting to give defendant greater rights than the law permits, has deprived her of the legal usufruct.

The court of appeal held that he did. The court stated that a usufruct that “departs from the provision of Article 916” must be characterized as wholly testamentary, rather than legal, and thus must be reduced to the extent that it impinges on the forced portion. It therefore held that plaintiff was presently entitled to the forced portion in full ownership.

We disagree. In Succession of Moore, 40 La.Ann. 531, 4 So. 460 (1888), this court, rejecting prior cases to the contrary, held that the surviving spouse is entitled to the article 916 usufruct unless a testamentary disposition is adverse to the legal usufruct. The testator can exclude the operation of article 916 if he exhausts, by means of donations mortis causa to persons other than his spouse, the portion of his estate that under article 916 is subject to the legal usufruct. He may also defeat the legal usufruct simply by stating his intention that his share of the community property inherited by issue of the marriage shall not be subject to it. Absent such an adverse testamentary disposition, the surviving spouse inherits, by operation of law, a usufruct of the estate to the extent permitted by Civil Code article 916.

Accordingly, our task is to examine the testament in this case in order to determine whether the decedent disposed of his estate adversely to the legal usufruct. He provided that his widow should enjoy a usufruct of the forced portion of his estate for life. As we stated in Winsberg v. Winsberg, 233 La. 67, 96 So.2d 44 (1957), a bequest to one’s spouse of more than the law allows is not an adverse disposition that defeats the legal usufruct. Since the disposition sub judice is obviously not adverse, the legal usufruct is not defeated.

We reaffirm Moore and Winsberg, believing that these decisions are consonant with the Civil Code. Article 1712 of the Civil Code directs us to interpret a testament in a way that furthers, rather than frustrates, the testator’s lawful intent. In addition, article 1502 provides that excessive donations are not null, but merely reducible to the disposable portion. The court of appeal reached a result that was contrary to the mandate of article 1712 and to the spirit of article 1502. For, if the testator in this case had left his widow the disposable portion in full ownership, and had either been silent as to the devolution of the legitime or had provided that the forced portion was only “subject to” a usufruct, the surviving spouse could have inherited both the disposable portion in full ownership and a usufruct of the legitime until her remarriage. The result reached by the court below makes the testator’s widow, who has not remarried, the victim of his liberality. Furthermore, it frustrates the intention of the testator, who sought to leave his wife the maximum amount that was legally permissible.

It must be remembered that the surviving spouse’s usufruct of the legitime is created by virtue of the law, not by the will. Moore, supra. Hence,- the usufruct is legal, and does not impinge on the legitime, to the extent that it gives the surviving spouse the same rights that she inherits by operation of law under article 916. Only to the extent that, and at such time as, allowance of the usufruct would give the surviving spouse greater rights than those she inherits by operation of law must it be considered testamentary, and must it be examined to determine whether it impinges on the legitime.

This result is totally consistent with Moore itself, the seminal case in this area. Indeed, the facts in Moore, are indistinguishable from those in the present case. In Moore, the testator bequeathed his wife the disposable portion in full ownership, and further provided that she should have a usufruct of the forced portion “during her natural life.” We held that the forced portion would be subject to a usu-fruct during her widowhood. Implicit in this holding was a recognition by this court that the usufruct would not be regarded as testamentary ab initio, but only upon such time as the spouse should remarry.

Finally, we should consider whether article 1499 of the Civil Code, which we applied recently in Succession of Hyde, 292 So.2d 693 (La.1974), affords plaintiff a remedy. Article 1499 provides:

If the disposition made by donation inter vivos or mortis causa be of a usu-fruct, or of an annuity, the value of which exceeds the disposable portion, the forced heirs have the option either to execute the disposition or to abandon to the donee the ownership of such portion of the estate as the donor had a right to dispose of.

The option of article 1499 is offered, however, only when a usufruct impermissi-bly burdens the legitime. Hyde, supra, 292 So.2d at 696-97, nn. 3 & 4. In this case, the usufruct is authorized until remarriage by article 916 and thus does not burden the legitime contrary to law. Article 1499 is also inapplicable because the disposable portion has been left to defendant in full ownership. In order for the forced heir to recover the legitime in full ownership, article 1499 requires that he abandon to the donee the disposable portion in full ownership, i. e., that he surrender the naked ownership of the disposable portion to the usufructuary. Because the forced heir (plaintiff) cannot abandon that which she does not own, it is impossible for her to exercise the option. As we stated in Hyde:

Of all the charges and conditions a testator could devise to place on the legi-time, only the usufruct is sanctioned. And then it is sanctioned at the option of the forced heir, for he can always take his legitime free of the usufruct by abandoning to the donee the disposable portion in full ownership. Such is the price which must be paid for frustration of the testator’s will in this regard.

292 So.2d at 697 (emphasis added).

Article 1499 cannot be employed when the preconditions for its exercise are not met; as French doctrinal writers state, it is an exceptional provision and must be restrictively applied. See, e. g., 3 C. Aubry et C. Rau, Corns de droit civil francais § 684a, at 220 (La.State L.Inst. transí. 1969); 5 M. Planiol et G. Ripert, Traité pratique de droit civil francais, no. 131, at 170 (2.éd. 1957).

We hold, therefore, that defendant is entitled to inherit, in addition to the disposable portion in full ownership, a usufruct of the forced portion until remarriage. If she remarries, article 916 will cease to have application, and the usufruct of the forced portion will be extinguished by operation of law. Defendant thus receives no more than the testator could lawfully have bequeathed her, and no less.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed, and the judgment of the trial court is reinstated; all costs of this proceeding are to be assessed against plaintiff.

DIXON, J., dissents and assigns reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

It seems to me that the court does little today except perpetuate the confusion that naturally follows the “adverse disposition” doctrine — a doctrine which effectively erases one of the important conditions precedent to the operation of C.C. 916: “ . . . when the predeceased . shall not have disposed by last will and testament, of his or her share in the community property . . .”25 La.L.Rev. 873, 877ff.; 18 Tul.L.Rev. 181, 199ff.; Yian-nopoulos, Personal Servitudes, §§ 103, 104 (West, 1968).

We also continue to approve an erosion of one provision of C.C. 1710: no charges or conditions can be imposed by the testator on the legitimate portion of forced heirs . . .” See also C.C. 1493-1495.

True, C.C. 916 is a “charge” upon the leg-itime, necessarily recognized because it is imposed by the same kind of statute that protects the legitime. But its history indicates its application should not be extended beyond its terms.

C.C. 916 appeared in the Code for the first time in 1870. Its source was Act 152, § 2 of 1844. There was no corresponding article in the Code Napoleon, perhaps the result of a drafting mistake (see Planiol, The Civil Law, Vol. 3 — Part 1, § 1868, La. State Law Institute, 1959), a mistake perpetuated in part because of a continental preference for devolution to blood kin, rather than to those presumed closest in affection to the decedent. Reform in France establishing a widow’s usufruct came much later than in Louisiana. (Planiol, supra, § 1869ff.).

Our Civil Code has contained a prohibition against “charges” upon the legitime since 1808. Article 1703 of the 1825 Code (art. 1710, Civil Code of 1870) was held to prohibit the bequest to the surviving spouse of a life usufruct on the entire estate. Clarkson v. Clarkson, 13 La.Ann. 422 (1858). In Succession of Turnell, 32 La. Ann. 1218 (1880), C.C. 1710 was held to prevent a testamentary requirement that the property be administered for five years and held under administration until each minor heir reached majority. Until Act 152 of 1844, not even the widow’s usufruct would burden the legitime; the widow was protected, as in France, by her right to one-half of the community, the needy spouse’s marital fourth, and the privileged claim to $1000 from an insolvent estate. (Dainow, Forced Heirship, 4 La.L.Rev. 42, 63).

Although the Succession of Chauvin, 260 La. 828, 257 So.2d 422 (1972), involved the “confirmation” doctrine, it should not be interpreted as favoring the perpetuation of the “adverse disposition” notion — a doctrine which seems to produce result-oriented decisions rather than decisions predictably based upon clear statutory provisions.

The Succession of Chauvin, supra, held that, when a will left “all I die possessed of to my son . . . subject to the usu-fruct thereon which I leave to my loving wife . . . ,” there was a “confirmation” of the C.C. 916 widow’s usufruct which terminated upon remarriage, according to the provisions of C.C. 916. The only reason (that can be gleaned from the Chauvin opinion) for deciding that C.C. 916 required that remarriage ended the widow’s usufruct is that the will purported to make no disposition of property that would not have been made in the absence of a will by operation of law. Although we had the opportunity to abandon the “confirmation” concept, we declined and chose instead to follow the “deeply imbedded” jurisprudential doctrine of “confirmation.” Yiannopoulos, Property, 32 La.L. Rev. 172, 197. If the will in Chauvin had done other than “confirm”, we could not have enforced the last sentence of C.C. 916, because, by its terms, if the forced heir had not inherited the disposable portion, C.C. 916 would not have been applicable.

We now have in our jurisprudence enough cases to evaluate the judicial gloss on C.C. 916, and it seems to me that it is time to return to the codal provision, and hold that, if the testator disposed (to anyone) of his share in the community, C.C. 916 should not apply, and there should be no legal usufruct over the portion of the. community inherited by the children. We should overrule the Succession of Moore, 40 La.Ann. 531, 4 So. 460 (1888) and Winsberg v. Winsberg, 233 La. 67, 96 So.2d 44 (1957), and reinstate the rule of Forstall v. Forstall, 28 La.Ann. 197 (1876).

If the legitime, then, is thought by the forced heirs to be burdened by a testamentary usufruct, C.C. 1499, is available, the heirs are protected in their right to an unfettered legitime, and the erstwhile usu-fructuary is compensated by becoming the owner of the disposable portion.

      . La.Civil Code art. 1493 (1870) provides:
      Donations inter vivos or mortis omisa can not exceed two-thirds of the property of the disposer, if he leaves, at his decease, a legitimate child; one-half, if he leaves two children; and one-third, if he leaves three or a greater number.
      Under the name of children are included descendants of whatever degree they be, it being understood that they are only counted for the child they represent.
      La.Civil Code art. 1494 (1870), as amended,

      La.Acts 1956, No. 313, provides:
      Donations inter vivos or mortis causa can not exceed two-thirds of the property, if the disposer, having no children, leaves a father, mother, or both, provided that where the legal portion of the surviving father, mother, or both is less than one-third the forced portion shall not be increased to one-third but shall remain at the legal portion.
      These articles place an absolute limit on freedom of testation. The legitime therefore passes to the forced heir ab intestato, and in full ownership. Succession of Hyde, 292 So.2d 693 (La.1974); Succession of Turnell, 32 La.Ann. 1218 (1880); Clarkson v. Clarkson, 13 La.Ann. 422 (1858); C. Aubry et C. Rau, Cours de droit civil francais § 679, at 193 (La.State L.Inst. transl. 1969).

      . La.Civil Code art. 1710 provides that no charges or conditions may be placed by the testator on the forced portion. See 2 J. Domat, The Civil Law in its Natural Order, no. 3213, at 373 (L. Cushing ed. W. Strahan transl. 1850), where a “charge” is defined as a usufruct; Comment, The Forced Heir as Naked Owner: An Exegesis, 48 Tul.L. Rev. 1209, 1232 (1974).

      . La.Acts 1975, No. 680, § 1, amending La. Civil Code art. 916 (1870), states:
      In all cases, when the predeceased husband or wife shall have left issue of the marriage with the survivor, and shall not have disposed by last will and testament, of his or her share in the community property, the survivor shall hold in usufruct, during his or her natural life, so much of the share of the deceased in such community property as may be inherited by such issue. This usufruct shall cease, however, whenever the survivor shall enter into a second marriage unless the usufruct has been confirmed for life or any other designated period to the survivor by the last will and testament of the predeceased husband or wife, and the rights of forced heirs to the legitime shall be subject to any such usu-fruct, which usufruct shall not be an impingement upon the legitime.

      . A legal usufruct is one that is created by operation of law. La.Civil Code art. 540 (1870). The usufruct established by Civil Code article 916 is a legal usufruct. Succession of Costa, 19 La.Ann. 14 (1867). A usu-fruct that owes its existence to the will is testamentary.

      . In Chauvin, the testator provided that his estate was “subject to” a usufruct. We held that this language merely confirmed the article 916 usufruct. In Chauvin, unlike the instant case, the surviving spouse remarried, and the legal usufruct thereby terminated.

      . Article 916, as amended in 1975, now permits the testator to create a testamentary usufruct that may last beyond remarriage without impinging upon the legitime.

      . Cases before Moore had held that any testamentary disposition excluded the legal usu-fruct. E. g., Forstall v. Forstall, 28 La.Ann. 197 (1876). Although Moore had sought to distinguish this case, we recognized in Winsberg v. Winsberg, 233 La. 67, 96 So.2d 44 (1957), that Moore had overruled it.

      . See Yiannopoulos, Testamentary Dispositions in Favor of the Surviving Spouse and the Legitime of Descendants, 28 La.L.Rev. 509, 516 (1968).

      . In Winsberg, the testator left to his widow his entire estate in full ownership. His children reduced the disposition to the disposable portion, one-third of the estate. This court, dismissing a suit for an accounting brought years later against the widow, held that the remainder of the estate was also subject to a usufruct in her favor.

      . La.Civil Code art. 1712 (1870) provides:
      In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.

        See also id. art. 1713:
      A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.

      . We hesitate to say that the usufruct in this case is actually being “reduced.” Reduction implies a decrease in value, see La.Civil Code arts. 1502 et seq. (1870), whereas no value can be placed upon a mere right of remarriage. Succession of Lynch, 145 So. 42 (La.App.Orl.1932).

      . The only case cited by the court of appeal in support of its holding was Succession of Young, 205 So.2d 791 (La.App.1st Cir.1968). This case is inapposite. In Young the testator left his estate in usufruct to his second wife. The child of a former marriage sued for a reduction. Article 916 of the Civil Code did not authorize the impingement in Young, whereas here the usufruct does not impinge on the legitime since it is authorized by article 916.

      . Where the decedent dies only partially testate, the legal usufruct attaches to the undisposed share of the community estate as may be inherited by the issue of the marriage. Succession of Glancy, 108 La. 414, 32 So. 356 (1902).

      . Chauvin, supra.

      . This court stated in Moore:

      It is true that Moore could not incumber the portion for which his children are forced heirs, that is, their legitime, but the fact is that he has not done so, for the in-cumbrance is placed upon it by law, independent of Ms participation. (Emphasis added). 40 La.Ann. 531, 537, 4 So. 460, 463 (1888).

      . Wliere the testator has bequeathed full ownership of the disposable portion and a usufruct of the forced portion that is not authorized by article 916, the remedy of the forced heir would be an action of simple reduction of the usufruct under La.Civil Code arts. 1502 et seq. (1870), rather than the special action of reduction-with-compensation envisioned by article 1499. See 41 Tul.L.Rev. 210 (1966).


author: DIXON, Justice. SUMMERS, Justice

text:
    Lloyd DARVILLE et al. v. ASSOCIATED INDEMNITY CORPORATION and Louisiana Department of Corrections.

      No. 56358.
    Supreme Court of Louisiana.
    Nov. 3, 1975.
    Dissenting Opinion Dec. 18, 1975.
    Charles O. Dupont, Allen M. Edwards, Plaquemine, for plaintiffs-applicants.
    William J. Guste, Jr., Atty. Gen., Carl Roberts, Asst. Atty. Gen., for defendants-respondents.
   DIXON, Justice.

This action was brought by Lloyd Dar-ville, Mrs. Ella Darville and Mrs. Lee Ethel Todd Riley for damages for personal injuries sustained in an automobile accident. Made defendants were Huey Martin, an inmate of the Department of Corrections who was serving as a trustee at the Louisiana Correctional Institute for Women, the Louisiana Department of Corrections and its insurer, the Associated Indemnity Corporation. The accident occurred on September 30, 1972 at the intersection of Louisiana Highway 30 and the private road leading out of the Louisiana Correctional Institute for Women, when a truck, owned by the department and driven by Huey Martin, collided with a Volkswagen driven by Mrs. Ella Darville, in which Mrs. Lee Riley was a guest passenger.

Huey Martin was never served, and the trial court sustained an exception based on lack of service. Therefore the lower court’s judgment did not affect him. Mrs. Lee Ethel Todd Riley and her husband dismissed their actions prior to trial.

The State of Louisiana, through the Louisiana State Penitentiary and the Department of Corrections, filed an exception of no cause of action, based on the doctrine of sovereign immunity. The trial court overruled the exception, and, on the merits, found that the accident was caused by the negligence of Huey Martin, for which the Department of Corrections and its insurer were liable under the doctrine of respondeat superior. Judgment was rendered in the full sum of $52,061.00 plus interest and costs. The insurer paid plaintiffs to the extent of the policy limits and did not appeal. The Department of Corrections appealed.

On appeal, the First Circuit Court of Appeal amended the trial court’s judgment to maintain the exception of no cause of action filed by the Department of Corrections. Darville v. Associated Indemnity Corporation, 311 So.2d 925 (La.App. 1st Cir. 1975). We granted certiorari because of the apparent conflict between this decision and the decision of this court in Board of Commissioners of the Port of New Orleans v. Splendour Shipping and Enterprises Company, Inc., 273 So.2d 19 (La.1973) and cases following.

In the Splendour case, supra, this court reviewed the history and the governmental purpose of the doctrine of sovereign immunity. We recognized that sovereign immunity in Louisiana was a judicially created doctrine, not a constitutionally mandated one. In fact, its constitutional history reflects more the concern of the legislature with the implementation of procedures designed to avoid its effect rather than any desire to foster • the growth of the doctrine. Because sovereign immunity was in fact a judicially created exception to the public policy of this state, this court felt the time had come to abrogate the doctrine :

Governmental responsibility is needed more today than ever. There is hardly any sector of private life and activity free from governmental intervention. The myriad State agencies and their employees almost defy inventory, to say nothing of control by the people whom they purport to serve. It has not been the policy of the legislature to permit employees of agencies to injure, intentionally or carelessly, private citizens. It is and should be the policy of the State, enforced through its courts, to require boards and agencies to act responsibly, or be subj ect to answer in court.
273 So.2d 19, at 25-26, Splendour, supra.

We are further buttressed in our belief that the Splendour decision indeed reflects the proper policy of this state with regard to sovereign immunity by the provisions of the 1974 Constitution. Article 12, sec. 10 of the new constitution states:

Section 10. (A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
(B) Waiver in Others Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.
(C) Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.

The decision by the First Circuit in the instant case appears to be inconsistent not only with the holding in the Splendour case, but also with the decisions of the other courts of appeal of this state. Indeed, the First Circuit itself, in Jackson v. Doe, 286 So.2d 751 (La.App. 1st Cir. 1973), which involved the issue of charitable immunity, noted:

Thus, plaintiff has good reason to be optimistic, especially in view of the Louisiana Supreme Court’s later decision in Board of Commissioners of Port of New Orleans v. Splendour Shipping & Enterprises Company, 273 So.2d 19 (La.1973), wherein the doctrine of governmental immunity from tort liability was abrogated.

At page 753.

The Third Circuit recognized the holding of Splendour in Traigle v. Parish of Calcasieu, 296 So.2d 411 (La.App. 3rd Cir.1974):

•In Splendour, our Supreme Court abolished the defense of sovereign immunity by all state boards and agencies. The Supreme Court stated: “We hold Port of New Orleans, and other such that the Board of Commissioners of the boards and agencies, are not immune from suit for tort.” This is a broad rejection of governmental immunity, sufficient to negate the assertion of the defense by any political subdivisions of the state, including police juries. See the comment, Governmental Immunity: The End of “Kings X”, 34 La.L.Rev. 69 and the concurring opinion in Pettis v. State Department of Hospitals, 281 So.2d 881 (La.App. 3rd Cir. 1973).

The Second Circuit has also recognized the holding in the Splendour decision. In Alford v. North-Central Area Vocational Technical School, 298 So.2d 889, 891 (La. App.2d Cir. 1974), reversed and remanded 310 So.2d 104 (La.1975), the court noted:

As we understand the meaning of the Splendour decision, the sovereign immunity from suit in tort no longer exists for the Board of Commissioners of the Port of Orleans, and all other such boards and agencies which had heretofore been accorded their immunity by jurisprudential doctrine only.

The court went on to uphold a defense of sovereign immunity in the Alford case, because the North-Central Area Vocational Technical School was an institution under the jurisdiction of the State Board of Education, which was a special agency of the state granted immunity from tort actions by article 19, sec. 26 of the 1921 Constitution. This court reversed, finding that plaintiffs stated a cause of action in contract, thus pretermitting any discussion of the effect of article 19, sec. 26 in relation to the Splendour decision.

The Fourth Circuit in Orleans Parish School Board v. Williams, 300 So.2d 848, 849, (La.App. 4th Cir. 1974), set aside and remanded 312 So.2d 647 (La.1975), stated:

We preliminarily note that the judicially-established doctrine of sovereign immunity from liability and from suit has been abrogated in Louisiana by Board of C. P. of New Orleans v. Splendour S. & E. Co., La. 1973, 273 So.2d 19.

In that case, the School Board had instituted suit against Williams for money it allegedly had overpaid him. Williams reconvened for damages on the grounds he had been unjustly discharged. The trial court upheld an exception to the reconventional demand, based on the defense of sovereign immunity. The Fourth Circuit reversed, holding that act 67 of 1962 was unconstitutional. This court held that the constitutionality of Act 67 of 1962 need not be decided, because the school board, by filing suit, waived any immunity it might possess under art. 19, sec. 26 of the 1921 Constitution.

The case of Genusa v. Krulee, 305 So.2d 752 (La.App. 4th Cir. 1974) held:

In Orleans Parish School Board v. Williams, 300 So.2d 848 (decided by this Court on September 10, 1974), we held that the legislative enactments variously referred to in that opinion did not render school boards immune from suit and followed the clear signal transmitted by Board of Commissioners of Port of New Orleans v. Splendour Shipping & Enterprises Company, Inc., et al., La.Sup.1973, 273 So.2d 19. This case clearly falls within the same category.

In the instant case, the First Circuit Court of Appeal has misunderstood our holding in Splendour. The court of appeal states that “the holding of the Court in the Splendour case was to the effect that the State Board waived its Governmental Immunity when it filed suit against Splendour which then had a right to reconvene against the State”. This is incorrect. The majority in the Splendour decision specifically refused to base its decision on waiver. Rather, the majority held that sovereign immunity, as such, was abrogated:

For these reasons, Fouchaux v. Board of Commissioners, supra (La.App., 186 So. 103), and Miller v. Board of Commissioners, supra (199 La. 1071, 7 So.2d 355) are overruled. We hold that the Board of Commissioners of the Port of New Orleans, and other such boards and agencies, are not immune from suit for tort. The judgments of the Court of Appeal and the district court, dismissing defendant’s reconventional demand, are reversed, and the case is remanded to the district court for further proceedings.

The Louisiana Department of Corrections was not a special agency of the state under article 19, sec. 26 of the 1921 Constitution, so that provision is not relevant to this proceeding.

The court of appeal in the instant case was in error in maintaining the exception of no cause of action filed by the Department of Corrections.

For these reasons, the decision of the court of appeal is reversed, and the judg.ment of the trial court is reinstated.

SUMMERS, J., dissents and assigns written reasons.

SUMMERS, Justice

(dissenting).

I cannot agree that the decision in Board of Commissioners of the Port of New Orleans v. Splendour Shipping and Enterprise Company, Inc., 273 So.2d 19 (La.1973) is correct, and I reaffirm the position I expressed in my dissent in that case.

Nor do I agree that the broad language of the Splendour Case purporting to abolish the doctrine of sovereign immunity in its entirety is an expression of the proper policy of this State which is buttressed by the adoption of Article XII, Section 10, of the Constitution of 1974. To the contrary, I believe it is implicit in Section 10(B) of Article XII of the 1974 Constitution that sovereign immunity continues to be a viable doctrine in our State Constitution, except in contract and tort suits. Otherwise why would the constitution provide as it does that there should be no immunity from suit and liability for the State or its agencies and political subdivisions in contract and tort cases, and provide at the same time that the legislature may authorize other suits against the State, a state agency, or a political subdivision? Or why should the constitution prescribe that “a measure authorizing suit shall waive immunity from suit and liability?” What “immunity” is the constitution referring to other than sovereign immunity ?

If the Splendour decision had the effect of abolishing sovereign immunity across the board, as the instant case seems to hold, then I believe the Constitution of 1974 reestablished sovereign immunity except in tort and contract cases. To that extent at least, the attempted abolition of sovereign immunity in the Splendour Case has been repudiated as a broad expression of “the proper policy of this state with regard to sovereign immunity.” This Court’s persistent refusal to recognize this fact renders the constitutional provision on the subject meaningless. I wonder if those who subscribe to that proposition realize the consequences of a total abolition of the doctrine of sovereign immunity.

What is at stake here is the constitution and the Court’s power to abolish this State’s sovereignty.

I would affirm the decision of the Court of Appeal. (311 So.2d 925).

      . See the constitutional discussion in Board of Commissioners of the Port of New Orleans v. Splendour Shipping and Enterprises, Company, Inc., 273 So.2d 19 at pp. 23-24.

      . “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.” La.Const. art. 1, sec. 22 (1974); see also La.Const. art. 1, sec. 6 (1921); La.Const. art. 110 (1864); La.Const. art. 10 (1868); La.Const. art. 11 (1879); La.Const. art. 6 (1898); and La. Const. art. 6 (1913).

      . This provision of the new constitution applies only to causes of action arising after the effective date of the constitution, midnight December 31, 1974. La.Const. art. 14, sec. 33 (1974).

      .Properly speaking, Art. 19, sec. 26 -withdraws consent to be sued :
      The following named commissions, boards, bodies or municipal corporations are and shall be considered special agencies of the State of Louisiana: (5) The State Board of Education.
      The consent of the State of Louisiana to suits or legal proceedings against any of the above listed agencies, (however heretofore given) is hereby expressly withdrawn and no such suit or proceeding shall be permitted except as provided in this section. This withdrawal of consent to suits and legal proceedings shall apply not only to suits and legal proceedings filed in the future but also to any pending suits or legal procedure. There is expressly excepted from the foregoing, suits for the enforcement of contracts entered into by any of the special agencies or for the recovery of damages for the breach thereof. Additionally, the Legislature of Louisiana may, in individual cases, by appropriate act grant to any party showing just and reasonable cause the right to sue any of these special agencies, in compliance with Section 35 of Article III of this Constitution.

      . Act 67 of 1962 amended R.S. 17:51 so that it reads:
      § 51. Parish boards as bodies corporate; power to sue and be sued; service of citation.
      There shall be a parish school board for each of the parishes, and these several parish school boards are constituted bodies corporate with power to sue. The legislature hereby authorizes suits against any parish school board for the enforcement of contracts entered into by the school board or for recovery of damages for the breach thereof, without necessity of any further authorization by the legislature. No other suits may be instituted or prosecuted against any parish school board unless in each individual case the legislature first has granted to the party or parties plaintiff the right to sue the particular school board, as provided in Section 26 of Article XIX and Section 35 of Article III of the Louisiana Constitution. In suits against school boards citation shall be served on the president of the board and in his absence on the vice-president.

      . Darville v. Associated Indemnity Corporation, 311 So.2d 925, 927 (La.App. 1st Cir. 1975).

      . Board of Commissioners of the Port of New prises Company, Inc., 273 So.2d 19, 26 (La.1973).

      . La.Const. art. XII, § 10 provides:
      “(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
      “(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.
      “(C) Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.”


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Willie James GIBSON.
    No. 56567.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      J. N. Dimos, Dimos, Brown & Erskine, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny Carl Parkerson, Dist. Atty., James A. Norris, Jr., Asst. Dist. Atty., for plaintiff-ap-pellee.
   SANDERS, Chief Justice.

The State charged the defendant, Willie James Gibson, with armed robbery in violation of LSA-R.S. 14:64. The jury found him guilty as charged. Defendant filed a motion for a new trial, which the court denied. The Court then sentenced him to fifteen years imprisonment. On appeal to this Court, defendant relies upon three assignments of error. We find no merit in any of them, and, accordingly, we affirm his conviction and sentence.

ASSIGNMENT OF ERROR NO.,1

Defendant contends that the trial court erred in accepting into evidence certain items of clothing identified solely by the victim of the alleged crime. We have reviewed the trial transcript and find that defense counsel did not object to the admission of the items when they were tendered. Under Article 841 of the Louisiana Code of Criminal Procedure, defendant cannot now avail himself of this alleged error.

ASSIGNMENT OF ERROR NO. 2

According to the brief filed in this Court, defendant’s second assignment of error addresses itself to the trial court’s ruling allowing an in-court identification of the defendant by the victim, based upon an allegedly suggestive out-of-court photographic lineup. This complaint was not included among the assignments of error in the record. Neither is it an error that is discoverable by a mere inspection of the pleadings and proceedings and without an inspection of the evidence. Therefore, under Article 920 of the Louisiana Code of Criminal Procedure, the alleged error cannot be considered on appeal.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial court erred in denying his motion for a new trial. The motion was based upon two grounds. First, defendant alleges that the verdict was contrary to the law and evidence. It is well established in Louisiana jurisprudence that the refusal of a trial judge to grant a motion for a new trial based on such an allegation presents nothing for this Court’s review. See, e. g., State v. Lisenby, La., 306 So.2d 692 (1975).

Secondly, defendant sought a new trial on the grounds of newly discovered evidence which was allegedly unavailable at the time of trial and which, he submits, would probably have changed the verdict. The new evidence consisted of two witnesses whom defendant found subsequent to trial. Concededly, the testimony of the first witness would have been merely cumulative and corroborative of previous alibi testimony. Defense counsel stated that that he did not know the nature of the testimony of the other witness, because he had never talked to her. Neither witness testified at the hearing on the motion for a new trial.

The jurisprudence is clear that a motion for a new trial based on newly discovered evidence should be granted only when evidence alleged to be newly discovered was not discovered before or during the trial and is of such import that if it had been introduced at trial, it probably would have changed the verdict or judgment of guilty. LSA-C.Cr.P. Art. 851; State v. Miller, 254 La. 73, 222 So.2d 862, cert. denied, 396 U.S. 1021, 90 S.Ct. 592, 24 L.Ed.2d 513 (1969). We hold that the trial judge did not abuse his discretion in denying the motion for a new trial.

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


author: MARCUS, Justice.

text:
    In re Judge James R. ALEXANDER, First Judicial District Court, Shreveport, Louisiana.
    No. 57225.
    Supreme Court of Louisiana.
    Dec. 15, 1975.
    Henry A. Politz, Shreveport, for respondent.
    Eugene J. Murret, Chief Executive Officer, Baton Rouge, Frank V. Moise, Jr., Special Counsel, Judiciary Commission of Louisiana, for petitioner.
   MARCUS, Justice.

Pursuant to the authority set forth in article 5, section 25(C) of the Louisiana constitution of 1974, the judiciary commission, after complying with rule 23 of the rules of the supreme court, found that Judge James R. Alexander was suffering from a permanent disability that seriously interfered with the performance of his duties. The commission recommended that respondent judge be involuntarily retired for disability. A copy of its findings of fact, conclusions of law and recommendation has been filed with this court. Pursuant to rule 6, section 6 of our rules, counsel for the judiciary commission and respondent judge submitted this matter for decision without oral argument. They further waived their right to file briefs under the authority of rule 23, section 14 of our rules.

We have reviewed the transcript of the hearing before the judiciary commission and have examined the exhibits introduced thereat. We have likewise considered the commission’s findings of fact, conclusions of law and recommendation. We concur therein and find that Judge James R. Alexander should be involuntarily retired as a judge for permanent disability that seriously interferes with the performance of his duties. La.Const, art. 5, § 25(C) (1974).

DECREE

On recommendation of the judiciary commission, it is ordered that Judge James R. Alexander be involuntarily retired as a judge for permanent disability that seriously interferes with the performance of his duties.


text:
    STATE of Louisiana v. Percy HINES and James Murray.
    No. 56721.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Arthur A. Lemann, III, Supervising Atty., New Orleans, Paul Wilkins, Student Practitioner, Loyola Law School Clinic, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Percy Hines and James Murray, charged with possession of herion with intent to distribute, were tried jointly and found guilty of possession of heroin, a violation of LSA-R.S. 40:966B(1). The court sentenced each to imprisonment for eight years in the custody of the Louisiana Department of Corrections. On appeal, defendants rely upon one bill of exceptions for reversal of their convictions and sentences.

Defendants contend that the trial court erred in overruling their motion to suppress the heroin, alleging that the police officers seized the evidence in an unconstitutional search of a private residence.

The circumstances surrounding the seizure of the heroin are crucial. Police Officers Farmer and Chetta received information from a confidential source, just before noon on November 6, 1972, that “Jake and Percy” were selling heroin from the side door of an apartment complex at the uptown-river corner of Dryades and Clio Streets. The informant had not given the officers the exact street address where the activity was taking place; therefore, the officers drove to the location to investigate the report and to gather enough information to enable them to obtain a search warrant. They drove past the site and saw two men in the yard near the rear entrance of 1200, 1202, 1204, 1206 Dryades Street, a fourplex apartment house located at the corner of Dryades and Clio. They recognized one of the individuals as Jake Glover, an ex-convict well known to Farmer and strongly suspected by him of distributing narcotics. To avoid alerting the participants, the officers drove on, returning to the location a few minutes later. At this time, they got out of their car and stepped into the yard to inspect the building. Jake’s companion walked past them, and the officers stopped him for identification purposes. He showed them a driver’s license, identifying him as Percy Hines, and, in response to the officer’s question, stated that he lived in the apartment building.

The officers left the premises. About a block away, at the corner of Clio and Bar-onne Streets, they saw Jake Glover leaving a barroom, and Glover, who normally greeted Farmer, averted his face, hurried away, and appeared to be holding something. The officers suspected that Glover might be carrying some type of contraband, so they began investigating on foot. Farmer watched Glover walk along Qio Street and turn left when he reached the apartment building. Officer Chetta, from another vantage point, saw Glover go through the front door at 1206 Dryades. Both officers went into the rear yard of the apartment complex. Although there was a low fence around the common yard, there was no enclosing gate. The building itself was open: either there was no door to the common hallway or the door was completely open. The officers saw three men, Hines, Glover, and Murray, standing together inside the hallway, examining the contents of a paper bag that Hines was holding in his right hand. When the three saw the officers, they ran, Hines dropping the paper bag on the floor as he fled. Officer Farmer caught Glover, while his partner captured Hines and Murray. Officer Farmer picked up the paper bag. He asked the three men if the bag belonged to any of them, and all replied, “No.” Officer Farmer then looked into the bag and found three foil packets. Upon opening the packets, he found small envelopes of brownish-white powder, which he believed to be heroin. The three men were formally arrested. The officers took $135 from Hines in small bills and $59 from Glover, also in small bills.

Defendants contend that the officers had no right to stop Percy Hines, question him, and ask him for identification in the rear yard of the apartment complex, and that Jake Glover’s suspicious behavior when he saw Officer Farmer and his partner at the corner of Baronne and Clio did not authorize the police to again enter the rear yard and then the hallway of the apartment complex, and that for these reasons the paper bag containing the heroin was seized in violation of the Fourth Amendment of the United States Constitution.

The uncontradicted evidence establishes that the common yard of the apartment complex had no gate; that, consequently, the entrance to the yard was open; that the hallway either had no door or the door was open, so that the officers standing in the common yard saw the defendants clustered around the paper bag; that the three suspects saw the police and fled the scene, Hines dropping the bag; and that, upon being intercepted by the police, the three men denied ownership of the bag lying on the floor of the hallway.

It is well settled that the Fourth Amendment to the United States Constitution protects people, not places. It is the individual’s reasonable expectation of privacy that our society values and the constitution protects. Katz v. U. S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Neither the apartment dwellers nor others could have had a reasonable expectation of privacy in the common yard open to the public. Hence, the officers violated no constitutional rights by entering the yard. See State v. Nine, La., 315 So.2d 667 (1975); United States v. St. Clair, 240 F.Supp. 338 (D.C.N.Y.1965); Marullo v. United States, 328 F.2d 361 (5th Cir.1964); United States v. Miguel, 2 Cir., 340 F.2d 812, cert. denied 382 U.S. 859, 86 S. Ct. 116, 15 L.Ed.2d 97 (1965); State v. Buchwald, 293 Minn. 74, 196 N.W.2d 445 (1972).

While they were legally on the premises, the officers saw the defendants drop the paper bag in the hallway and flee. At this point, they clearly had probable cause to arrest the defendants. LSA-C. Cr.P. Art. 213; Johnson v. Middlebrooks, 383 F.2d 386 (5th Cir. 1967). Upon apprehending them, the officers took possession of the paper bag, abandoned on the floor.

We hold, as did the trial judge, that the officers gained possession of the heroin in a manner consistent with constitutional safeguards. Hence, it was properly admitted in evidence at the trial.

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