author: MARCUS, Justice.

text:
    STATE of Louisiana v. Junior Ray SPOTVILLE.
    No. 59911.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Margaret C. Spedale, Asst. Dist. Atty., for plaintiff-relator.
    Junior Ray Spotville, in pro per.
   MARCUS, Justice.

Junior Ray Spotville was convicted of criminal neglect of family and was ordered by the court to pay $30.00 bi-weekly for support of his children. Subsequently, on motion of the district attorney, Spotville was ruled into court to show cause why he should not be punished for contempt of court for failure to pay the alimony previously fixed by the court. A hearing was held in which it was shown that he was in arrears in the sum of $1,320.55 in support payments. The court found defendant guilty of contempt for failing to comply with the judgment of the court and sentenced him to pay a fine of $500.00 and, in default of payment thereof, to serve six months in the parish prison. The state then moved for a judgment directing defendant to pay the due and unpaid child support ($820.55) to the state. The court denied the motion. Upon the state’s application, we granted certiorari to review the correctness of this ruling.

The state contends that the trial judge erred in refusing to render a judgment directing defendant to pay the due and unpaid child support to the state. The state argues that La.R.S. 14:75 mandates such a judgment and that the court has no discretion in the matter.

As amended by Act 115 of 1975, La.R.S. 14:75 provides:

Before the trial for criminal neglect of family (with the consent of the defendant), or after conviction, instead of imposing the punishment hereinbefore provided, or in addition thereto, the court, in its discretion, having regard to the circumstances and financial ability of the defendant, shall have the power to issue an order directing the defendant to pay a certain sum weekly, or at such periods as the court may direct, to either parent or to the tutor or custodian of the minor child, or to an organization or individual approved by the court as fiduciary for such parent or child, or to the state of Louisiana, which sum may be increased or decreased by the court from time to time, as the circumstances may require, and with authority to require the defendant to enter into a recognizance, with or without surety, as the court shall direct, in order to insure the payment of the alimony. The condition of the recognizance shall be such that if the defendant shall make his or her personal appearance at court whenever ordered to do so, and shall further comply with the terms of the order or of any subsequent modification thereof, then the recognizance shall be void, otherwise of full force and effect.
If the defendant shall violate the terms of such order at any time, the court, upon the motion made by the parent or the district attorney on behalf of the state, may issue an order directing the defendant to show cause why he or she should not be punished for contempt of court for failure to pay the alimony, which rule shall be tried in a summary manner, and if on the hearing of such rule the court shall find that the accused has been guilty of contempt by failing to comply with the judgment of the court in paying the alimony assessed, then, and in that case, the court shall have the power to punish for such contempt by compelling the defendant to pay a fine of not less than twenty-five dollars, or in default of payment of said fine, to suffer imprisonment for not more than thirty days; or the court may fine the defendant the total amount of due and unpaid alimony and/or child support and order same to be paid to either parent or to the tutor or custodian of the minor child, to an organization or individual approved by the court as fiduciary for such parent or child, or to the state of Louisiana, whichever is applicable, within a period of time fixed by the court, during which time the defendant may be released upon giving a bond for his or her appearance in court at the expiration of said period if he or she should fail to comply with order of court within the period of time fixed; and in default of paying the total amount of back alimony and/or child support which the court has fined the defendant for his or her contempt of the judgment and orders of said court, the court shall have the right to commit the accused to imprisonment for not more than six months. In addition thereto, the court shall render judgment directing the defendant to pay the total amount of due and unpaid alimony and/or child support to the parent, tutor or custodian of the minor child, to an organization or individual approved by the court as fiduciary for such parent or child, or to the state of Louisiana, whichever is applicable. Such judgment shall have the same force and effect as a final judgment for money damages as against the defendant, and may be made executo-ry by any Louisiana court of competent civil jurisdiction in accordance with Articles 2781 through 2783 of the Code of Civil Procedure, on petition of the state of Louisiana or any appropriate judgment creditor. In all cases in which the parent, tutor, or custodian of the child has assigned his or her right to alimony and/or child support to the state, the court shall order all alimony and/or child support payments, and payment of past due alimony and/or child support, to be made to the designated agency of the state, to the exclusion of the parent, tutor, or custodian of the child and of any fiduciary for such parent or child. Any alimony and/or child support rights so assigned shall constitute an obligation to the state, and the state shall have the authority to use any civil or criminal remedy available to the assignor to enforce a support obligation.
In addition, thereto, in the event that the accused has entered into a recognizance with sureties in the amount fixed by the court to insure the payment of the alimony, the court shall also have the right and authority to order the forfeiture of such recognizance and enforcement thereof by execution, and the sum recovered may in the discretion of the court be paid in whole or in part to the parent or to the tutor or custodian of the minor child, or to an organization or individual approved by the court as fiduciary for such parent or child, or to the state of Louisiana provided that should the court order both the forfeiture of the recognizance and at the same time order the accused to pay all unpaid alimony under the sentence for contempt, in no event shall any further sum be paid than the amount of due and unpaid alimony. (Emphasis added.)

Prior to Act 115 of 1975, upon finding the accused guilty of contempt by failing to comply with the judgment and orders of the court in paying the alimony assessed, the court was empowered either (1) to compel the defendant to pay a fine of not less than twenty-five dollars, or in default of payment of said fine, to suffer imprisonment for not more than thirty days, or (2) to fine the defendant the total amount of due and unpaid alimony and order same to be paid to the appropriate party within a period of time fixed by the court, and in default of the payment of said fine, the court had the right to commit the accused to imprisonment for not more than six months.

Act 115 of 1975 retained the above penalty provision but provided in addition thereto that the court shall render judgment directing the defendant to pay the total amount of due and unpaid alimony and/or child support to the appropriate party which includes the state (or the designated agency of the state) where the parent, tutor or custodian of the child has assigned his or her right to alimony and/or child support to the state. The amendment provided that such judgment shall have the same force and effect as a final judgment for money damages as against the defendant and may be made executory by any Louisiana court of competent civil jurisdiction in accordance with articles 2781 through 2783 of the Code of Civil Procedure on petition of the state or any appropriate judgment creditor.

It is clear from the aforesaid amendment and by reading the statute as a whole that the legislature intended that, upon finding the accused guilty of contempt for failure to comply with the prior court order to pay alimony, the court is required to render a final money judgment against the defendant and in favor of the appropriate party for the total amount of the due and unpaid alimony and/or child support. The amendment makes it clear that this judgment is to be “[i]n addition” to either of the fines imposed by the court. Any portion of the fine imposed which is paid to the appropriate party will be credited to the money judgment rendered for the total amount of due and unpaid alimony and/or child support. Payment of the fine is made more likely by the imposition of a prison sentence in default of the payment of said fine.

In the instant case, the total amount of due and unpaid child support was $1,320.55. The state, as assignee of the parent of the child, was entitled to a money judgment in its favor and against defendant for this amount in addition to the fine imposed of $500.00. Since the state is seeking judgment only in the amount of $820.55, we must assume that the $500.00 fine has been paid to the state. Hence, the state is entitled to a judgment of $820.55 representing the total amount of due and unpaid child support.

DECREE

For the reasons assigned, the judgment of the trial court is reversed; and the case is remanded to the Juvenile Court for the Parish of Orleans with instructions to the trial judge to render judgment in favor of the state and against defendant in accordance with the views herein expressed.

      . 346 So.2d 221 (La.1977).

      . The word “shall” is mandatory, and the word “may” is permissive. La.R.S. 1:3; La.Code Crim.P. art. 5; Dameron-Pierson Co. v. Bryant, 245 La. 208, 157 So.2d 886 (1963); State v. Kifer, 186 La. 674, 173 So. 169 (1937). Since La.R.S. 14:75 states that “the court shall render judgment,” (emphasis added) the provision is mandatory.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Louisiana v. Otis James LEWIS.
    No. 59885.
    Supreme Court of Louisiana.
    Oct. 20, 1977.

      Sam Nelken, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., John Stephens, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM:

In State v. Lewis, No. 58,774, decided by this Court on March 9, 1977, this defendant’s conviction was affirmed, but the sentence was vacated and set aside and the case remanded to the trial court for resentencing. State v. Lewis, 343 So.2d 732 (La.1977). Subsequently the defendant was brought before the trial court and resen-tenced to twenty-five years at hard labor in the custody of the Department of Corrections without eligibility for probation, parole or suspension of sentence. A new appeal was then entered on behalf of the defendant. Defendant does have a right to appeal from the imposition of the new sentence. La.Const., Art. 5, § 5(D)(2X1974); La.C.Cr.P. art. 912.1. However, defendant’s conviction had already been affirmed and the judgment therein was final fourteen days after its rendition upon the failure of defendant to file an application for a rehearing. La.C.Cr.P. art. 922. Any additional issues defendant wishes to raise in connection with his conviction, including an argument relative to effective assistance of counsel, must be brought to the attention of the courts by application for writs of habe-as corpus. See State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976).

As the sentence imposed upon the defendant is a legal one for the offense of armed robbery, La.R.S. 14:64, the sentence is affirmed.


author: PER CURIAM.

text:
    STATE of Louisiana v. Peter BROWN.
    No. 59640.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Joseph Neves Marcal, III, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The issue of whether or not the defendant was denied effective assistance of counsel is properly raised by application for writ of habeas corpus. State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976).

Finding no reversible error in the record presently before us, defendant’s conviction and sentence are affirmed.


text:
    STATE of Louisiana v. Robert Lee DAVIS.
    No. 59763.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Fred C. Jackson, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Billy McCOY.
    No. 59764.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Fred C. Jackson, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., A. Z. Butterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Michael MILLER.
    No. 59769.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Carey J. Ellis, Jr., Glynn D. Roberts, Ray-ville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Larry L. THORPE and Chester R. Strickland.
    No. 59776.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Robert J. Zibilich, Orleans Indigent Defender Program, William L. Crull, III, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plain tiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lawrence WILLIAMS.
    No. 59781.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Alton T. Moran, Director, Vincent Wilkins, Jr., App. Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Warren Hebert, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Nolan LONGMIRE.
    No. 59782.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Victor J. CURRY.
    No. 59783.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    John E. Unsworth, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Glendell SHOWERS.
    No. 59788.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Patrick C. McGinity, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Roy F. Blondeau, Jr., Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Louis VINCENT.
    No. 59789.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Arthur A. Lemann, III, Supervising Atty., New Orleans, Joseph Gallagher, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Larry BELL.
    No. 59790.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Donald FLEMING.
    No. 59796.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Robert E. Lee, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Herman WILLIAMS.
    No. 59805.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. William A. WINGERTER and Lucille Wingerter.
    No. 59823.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Ronald S. Ruiz, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty;, Larry Simmons, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. George GROVES.
    No. 59835.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert L. Simmons, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Christopher McALISTER.
    No. 59873.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Fred C. Jackson, Saint Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Bútterworth, Sp. Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. James Carl CALLAHAN.
    No. 59897.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Thomas A. Wilson, Wilson & Veatch, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PER CURIAM. DIXON, J., CALOGERO, J.,

text:
    STATE of Louisiana v. Harvey KNOX.
    No. 59902.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinquefield, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee. '
   PER CURIAM.

Affirmed.

DIXON, J.,

dissents, on the question of the excessive sentence.

CALOGERO, J.,

dissents, being of the view that there is merit in defendant’s assignments, 3, 5 & 6.


text:
    STATE of Louisiana v. Clarence COLE.
    No. 59903.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Samuel M. Cashio, Cashio & Cashio, C. Alvin Tyler, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinquefield, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leroy BROWN.
    No. 59919.
    Supreme Court of Louisiana.
    Oct. 20, 1977.
    Larry D. Book, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinquefield, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    Fred ALEXANDER v. Charles REED, Carol Realty Corp., American Indemnity Company and Federal Insurance Company.
    No. 59997.
    Supreme Court of Louisiana.
    June 15, 1977.
   In re: Carol Realty Corp. and Federal Insurance Co., applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany, 350 So.2d 179.

Writ denied. The result is correct.


text:
    LOUISIANA STADIUM AND EXPOSITION DISTRICT v. HUBER, HUNT AND NICHOLS, INC., et al.
    No. 60618.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Louisiana Stadium and Exposition District applying for supervisory writs and writ of certiorari.

Writ denied. Ruling of the court of appeal is correct.

CALOGERO, J., recused.


author: SUMMERS, J.

text:
    TRI-SOUTH MORTGAGE INVESTORS v. NEW COMMUNITIES, INC.
    No. 60667.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Tri-South Mortgage Investors applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne, 349 So.2d 1321.

Writ granted. Judgment of court of appeal reversed. Ruling of trial judge is correct. See La.R.S. 12:491, et seq. as amended by Act 526 of 1977. Case remanded to court of appeal for further proceedings.

SUMMERS, J.

While I agree that the writ should be granted, I cannot agree that the in chambers decree issued by the court is proper without a hearing.


text:
    STATE of Louisiana v. James WASHINGTON, Jr.
    No. 60789.
    Supreme Court of Louisiana.
    Oct. 13, 1977.
   In re: State of Louisiana applying for writs of certiorari, prohibition and mandamus.

Writ denied. The ruling is correct.


text:
    STATE of Louisiana v. Nathaniel STEWART.
    No. 60802.
    Supreme Court of Louisiana.
    Oct. 14, 1977.
   In re: Nathaniel Stewart applying for writs of certiorari, prohibition, mandamus and a stay order.

Writ denied: Treating the preliminary hearing as a first Morrissey hearing, the applicant is not entitled to bond on the detainer for parole violation pending a final revocation hearing.


text:
    STATE of Louisiana v. Eddie J. McGEE, Jr.
    No. 60816.
    Supreme Court of Louisiana.
    Oct. 17, 1977.
   In re: Eddie J. McGee, Jr. applying for supervisory writs.

Application denied; without reaching the merits of the application, we notice the trial is fixed for Oct. 19. We will not interfere with the orderly proceedings in the court below, since there is an adequate remedy by review in the event of conviction.


author: SANDERS, C. J., SUMMERS, J.,

text:
    STATE of Louisiana v. Feryl GRANGER.
    No. 60864.
    Supreme Court of Louisiana.
    Oct. 24, 1977.
   In re: Feryl Granger, applying for writ of certiorari and review.

Writ granted. Bond of $250,000 is excessive in this case. Bail is reduced to $15,000.

SANDERS, C. J.,

dissents, being of the opinion that the reduction is far too drastic under all the circumstances.

SUMMERS, J.,

dissents. There are six pending charges against the applicant. He is a previous offender also. I see no abuse of discretion in the ruling of the trial judge considering the nature and number of charges.


text:
    In re Allen PARKER.
    No. 60746.
    Supreme Court of Louisiana.
    Oct. 25, 1977.
   In re: Allen Parker applying for writs of certiorari, mandamus and prohibition.

Granted.

The petition of the relator in. the above entitled and numbered case have 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 8th day of November, 1977, 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, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Louis SMITH, Jr. and James Campbell.
    No. 60793.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: State of Louisiana, applying for supervisory writs.

Application not considered. Not timely mailed on October 7th.


text:
    MARSH BUGGIES, INC. v. Talbot RODRIGUE.
    No. 60544.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Marsh Buggies, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson.

Writ refused.


text:
    Jimmy PARKER v. STATE FARM FIRE AND CAS. CO. and B & R Masonry Co., Inc.
    No. 60551.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: State Farm Fire and Casualty Co. and B & R Masonry Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 348 So.2d 91.

Writ denied.


text:
    Oscar UMBEHAGEN v. LIBERTY MUTUAL INSURANCE CO. et al. DOROTHY KLEIN VANNEY v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 60546.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Dorothy Klein Vanney and Oscar Umbehagen applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 348 So.2d 122.

Denied.


text:
    Ernest YOUNGS v. Philip CHAMPAGNE and Heritage Ins. Co. of America.
    No. 60540.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Philip Champagne and Heritage Ins. Co. of America applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 348 So.2d 126.

Denied.


text:
    STATE of Louisiana, Through the DEPT. OF HIGHWAYS v. COUNTRY CLUB ACRES, INC.
    No. 60527.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Country Club Acres, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches, 348 So.2d 138.

Writ denied.


text:
    WEST CALCASIEU PORT HARBOR AND TERMINAL DISTRICT v. CAJUN MARINE SERVICES, INC., and Alfred A. Devall, d/b/a Calcam Fleeting Service.
    No. 60536.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Alfred A. Devall d/b/a Calcam Fleeting Service and Devall’s Towing and Boat Service, Inc. applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Calcasieu, 348 So.2d 169.

Denied.


text:
    Julian Donald GREGORIE v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY.
    No. 60574.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Julian Donald Gregorie applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline, 348 So.2d 186.

Writ denied.


text:
    Joseph K. MESHELL v. Phillip RIVERS and Southern Casualty Ins. Co.
    No. 60533.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Joseph K. Meshell applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vernon, 348 So.2d 203.

Writ denied.


text:
    Douglas P. FAULK v. POWER RIG DRILLING CO., Lamb Industries, Inc., the Northern Assurance Co. of Am., Odell Vinson Contractors, Employers Fire Ins. Co.
    No. 60572.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Lamb Industries, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Allen, 348 So.2d 219.

Dismissed.


text:
    BUNEL OF NEW ORLEANS, INC. v. Elton A. CIGALI.
    No. 60568.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Bunel of New Orleans, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 348 So.2d 993.

Denied.


text:
    Thomas Kier MADDOX v. The PRUDENTIAL INSURANCE CO. OF AMERICA et al.
    No. 60686.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Pan American Life Ins. Co. applying for certiorari, or writ of review, tó the Court of Appeal, First Circüit, Parish of Tangipahoa, 349 So.2d 890.

Writ denied.


text:
    In the Matter of the Succession of Marie Scioneaux BASKIN.
    No. 60690.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: E. J. Scioneaux, Jr. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 349 So.2d 931.

Denied.


text:
    H. & H. SEWER SYSTEMS, INC. v. INSURANCE GUARANTY ASSOCIATION.
    No. 60631.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Insurance Guaranty Association, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 349 So.2d 965.

Writ denied. Judgment not final.


text:
    MERRYDALE GLASS WORKS, INC. v. Mike MERRIAM.
    No. 60688.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Merrydale Glass Works, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 349 So.2d 1315.

Denied.


author: SUMMERS and TATE, JJ.,

text:
    Herman HARDY et al. v. MAYOR AND BOARD OF ALDERMEN, City of Eunice, Louisiana, et al.
    No. 60573.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Herman Hardy, et al. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry, 348 So.2d 143.

Writ denied.

SUMMERS and TATE, JJ.,

would grant the writ.


author: TATE and DIXON, JJ.,

text:
    Rita Kahoe, wife of/and Arthur KAHOE, Individually and on behalf of his minor daughter, Angela Kahoe v. STATE FARM MUTUAL AUTOMOBILE INS. CO., Gregory L. Watkins, and H. Lioneal Watkins.
    No. 60673.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Rita Kahoe, wife of/and Arthur Kahoe applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of- St. Tammany, 349 So.2d 1345.

Denied.

TATE and DIXON, JJ.,

are of the opinion the writ should be granted.


text:
    Karleen York PARKS in her own behalf and as Tutrix of Danny L. Gill v. Vincent PAOLA and XYZ Insurance Co.
    No. 60679.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Karleen York Parks, in her own behalf and as tutrix of Danny L. Gill applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 349 So.2d 896.

Denied.

TATE and DIXON, JJ.,

are of the opinion a writ should be granted.


text:
    Andrew LEWIS v. Mrs. Sara PAILET d/b/a Jefferson Bottling Co. and Fireman’s Fund American Ins. Co.
    No. 60561.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Andrew Lewis applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 349 So.2d 338.

Denied.


author: SANDERS, C. J., and CALOGERO, J.,

text:
    HENICAN, JAMES AND CLEVELAND, a partnership v. Mrs. Mildred CHIASSON, divorced wife of Zachary A. Strate.
    No. 60542.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Henican, James & Cleveland, A Partnership applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 348 So.2d 689.

Writ denied.

SANDERS, C. J., and CALOGERO, J.,

would grant the writ.


text:
    Mary Alice Hardy MOSLEY v. Dr. Walter L. MOSLEY.
    No. 60529.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Mary Alice Hardy Mosley applying for certiorari,' or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches, 348 So.2d 225.

Denied.

TATE and DIXON, JJ.,

would grant.


author: MARCUS, J.,

text:
    Julian Donald GREGORIE v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY et al.
    No. 60524.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: The Hartford Accident and Indemnity Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline, 348 So.2d 186.

Writ denied.

MARCUS, J.,

would grant the writ.


author: SUMMERS, CALOGERO and DENNIS, JJ.,

text:
    Frank J. D’AMICO and Anthony J. Vesich, Jr. v. NEW ORLEANS PUBLIC SERVICE, INC., and City of New Orleans.
    No. 60523.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Frank J; D’Amico and Anthony J. Vesich, Jr. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 348 So.2d 116.

Writ refused.

SUMMERS, CALOGERO and DENNIS, JJ.,

think the writ should be granted.


author: MARCUS and DENNIS, JJ.,

text:
    Frank D’AMICO and Anthony J. Vesich, Jr. v. NEW ORLEANS PUBLIC SERVICE, INC. and City of New Orleans.
    No. 60545.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: New Orleans Public Service, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 348 So.2d 116.

Writ denied.

MARCUS and DENNIS, JJ.,

would grant the writ.


author: TATE, J.,

text:
    Jerome P. HALFORD v. REPUBLIC UNDERWRITERS INSURANCE COMPANY.
    No. 60539.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Jerome P. Halford applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 348 So.2d 87.

Writ denied.

TATE, J.,

dissents.


author: DIXON, J.,

text:
    Gloria Delesdernier, wife of Paul MARCHAND, et al. v. ESTATE of Julia Loga, wife of George M. DELESDERNIER, et al. Succession of George W. DELESDERNIER. Succession of Mrs. Julia Theresa Loga, wife of George W. Delesdernier.
    No. 60565.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Paul Delesdernier, Succession of Ira Delesdernier, Sr. and Gael Keene Ralph applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Plaquemines.

Writ denied.

DIXON, J.,

would grant.


text:
    Paul BODI et al. v. GOVERNMENT EMPLOYEES INS. CO. et al.
    No. 60676.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Government Employees Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 349 So. 1327.

Writ denied.


text:
    STATE of Louisiana v. Lawrence RILES.
    No. 60700.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Lawrence Riles, applying for writ of mandamus.

Writ denied. Record lodged in this court on October 17, 1977. Hence, the matter is moot.


text:
    GULF STATES UTILITIES CO. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 60850.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Louisiana Public Service Commission, applying for supervisory writ of review and for a stay.

Writ denied: Inadequate showing for supervisory review. The applicant’s remedy by appeal from final judgment may adequately protect the ratepayers, should the trial court have erred in its interlocutory ruling.


text:
    Helen McMILLAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al. Thomas HUTCHINSON v. STATE FARM INSURANCE CO. et al.
    No. 60689.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: State Farm Mutual Automobile Insurance Co., and Helen J. Stilley applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston, 349 So.2d 949.

Granted.

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


text:
    Helen McMILLAN v. STATE FARM MUTUAL AUTO. INS. CO. et al. Thomas HUTCHINSON v. STATE FARM INSURANCE CO.
    No. 60723.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Helen McMillan a/k/a Helen J. Stilley applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of Livingston.

Granted.

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


text:
    UNITED TEACHERS OF NEW ORLEANS v. ORLEANS PARISH SCHOOL BOARD.
    No. 60552.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: United Teachers of New Orleans, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ granted.

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


text:
    Rachael Hotard THOMASON v. Hugh Montgomery THOMASON, III.
    No. 60639.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Rachael Hotard Thomason, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 349 So.2d 928.

Granted.

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


text:
    Maurice L. BROWN v. R. T. SUTTON, Commissioner of Conservation, etc.
    No. 60648.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: R. T. Sutton, applying for certiora-ri, or writ of review, to the Court of 'Appeal, First Circuit, Parish of East Baton Rouge, 349 So.2d 898.

Granted.

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


text:
    Daphine Sterling ETHERIDGE v. UNION NATIONAL LIFE INS. CO.
    No. 60655.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Daphine Sterling Etheridge applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 349 So.2d 945.

Granted.

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


text:
    Charlie SHAVERS and Darlene Shavers v. Succession of Thomas D. SHAVERS.
    No. 60668.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Charlie Shavers and Darlene Shavers applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Catahoula. ■ .

Not considered. Not timely filed. Rule X, Section 5(b).


text:
    Wellman G. PERCLE v. ST. PAUL FIRE AND MARINE INS. CO.
    No. 60703.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Wellman C. Percle applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 349 So.2d 1289. . .

Writ denied.


text:
    Wellman G. PERCLE v. ST. PAUL FIRE AND MARINE INS. CO.
    No. 60685.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: St. Paul Fire and Marine Ins. Co. applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit Parish of East Baton Rouge, 349 So.2d 1289.

Writ denied.


text:
    STATE of Louisiana v. Frederick STANLEY.
    No. 60886.
    Supreme Court of Louisiana.
    Oct. 27, 1977.
   In re: Frederick Stanley applying for writ of certiorari.

Granted in part. It is ordered that a copy of this petition be transferred to the trial court for his consideration and disposition.


text:
    STATE of Louisiana v. Bruce BLOUIN.
    No. 59803.
    Supreme Court of Louisiana.
    Oct. 27, 1977.
   In re: Bruce Blouin applying for Remedial Writs.

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 Bur-rell J. Carter, Judge of the 21st Judicial District, Court for the Parish of Tangipa-hoa, to transmit to the Supreme Court of Louisiana, on or before the_day of _, 19_, 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 the 16th day of November, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Madalin GAUTREAU, Melvin Gautreau, Robert Gautreau and Maxwell Gautreau, Jr. v. SECURITY INDUSTRIAL INS. CO. and Ourso Funeral Home, Inc.
    No. 60423.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Ourso Funeral Home applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension, 347 So.2d 1295.

Application denied.


text:
    HIBERNIA NATIONAL BANK IN NEW ORLEANS v. Dave DEGRAAUW a/k/a David M. DeGraauw and Sherie A. Conrad.
    No. 60407.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Hibernia National Bank in New Orleans applying for writs of certiorari and mandamus. 351 So.2d 1223.

Writ granted. The ruling of the court of appeal is correct. The Civil District Court for the Parish of Orleans is ordered to act on the writ application.


text:
    STATE of Louisiana ex rel. Willie SCOTT v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 60645.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Willie Scott applying for writ of mandamus.

Not considered. The application is moot because the district court has acted on relator’s habeas corpus petition.


text:
    STATE of Louisiana ex rel. Larry P. CUPPAY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, Hon. Matthew S. Braniff, Judge, Criminal District Court, Parish of Orleans.
    No. 59968.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Larry P. Cuppay applying for writ of mandamus.

Application denied; the district court has now acted, and has denied applicant’s petition.


text:
    STATE of Louisiana v. Thomas H. MURPHY.
    No. 60230.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Thomas H. Murphy applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. No error in the ruling of the trial judge.


text:
    STATE of Louisiana v. Richard BUTLER.
    No. 60306.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Richard Butler applying for remedial writs.

Writ denied. The matter is moot.


text:
    STATE of Louisiana v. Michael M. LACOUR.
    No. 60405.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Michael M. Lacour applying for writ of review and for a stay order.

Writ denied. No merit in relator’s assignments of error.


text:
    STATE of Louisiana ex rel. Bennie JERRY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60428.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Bennie Jerry applying for supervisory and remedial writs.

Writ refused. No merit in application.


text:
    STATE of Louisiana ex rel. Clinton ANDERSON v. Ross MAGGIO, Warden.
    No. 60454.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Clinton Anderson applying for writ of certiorari and habeas corpus.

Writ denied. No error in the district court ruling.


text:
    STATE of Louisiana ex rel. William M. REED v. Hon. Charles R. WARD, Judge, Section “A”.
    No. 60867.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: William M. Reed applying for remedial writs.

Writ denied. Considering the return of . the trial court that bail has been fixed as requested, the application is moot.


text:
    STATE of Louisiana v. Walter JONES, Sr.
    No. 60377.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Walter Jones, Sr. applying for writ of certiorari.

Writ denied. No error of law. See Col-lette v. Olivier, 309 So.2d 894 (La.App. 3rd Cir. 1975), certiorari denied 313 So.2d 827 (La.1975).


text:
    STATE of Louisiana v. William F. EDGECOMBE.
    No. 60436.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: William F. Edgecombe applying for writ of certiorari.

Writ refused. The complaints made herein were disposed of in the appeal. See 275 So.2d 740 (La.1973).


text:
    STATE of Louisiana ex rel. Vorice CHARLES v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60888.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Vorice Charles, applying for writ of habeas corpus.

Writ denied. No merit in the application. Petitioner has already had his appeal. State v. Charles, La., 326 So.2d 335.


text:
    STATE of Louisiana ex rel. Albert DAWSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60440.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Albert Dawson applying for writ of habeas corpus.

Granted. Out of time appeal granted. District court will appoint attorney to perfect assignments of error and represent applicant on new appeal.


text:
    STATE of Louisiana v. Sydney Bo PETERSON.
    No. 60402.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Sydney Bo Peterson applying for writs of certiorari, prohibition and mandamus.

Writ denied.


text:
    Joseph C. CORCELLER, Jr., and Rellecroc, Inc. v. John H. BROOKS, Laborde and Brooks and St. Paul Fire and Marine Insurance Co.
    No. 60387.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Joseph C. Corceller, Jr. and Relle-croc, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 347 So.2d 274.

Writ denied: The result is correct.

DIXON, J.,

concurs. The language and apparent reasons for the rulings of some of the holdings of the Court of Appeal seem incorrect, but for factual reasons disclosed in the Court of Appeal opinion, plaintiff properly could not recover.


text:
    Edward A. BOUDREAUX v. MAZDA MOTORS OF AMERICA, INC.
    No. 60386.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Mazda Motors of America, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 347 So.2d 504.

Writ denied.


text:
    Ronald J. HAYDEL v. Philip Henry CLARK et al.
    No. 60417.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Philip Henry Clark and Benny G. Williams applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne, 347 So.2d 1200.

Writ denied. Judgment of the Court of Appeal is correct.


text:
    C. M. ALEXANDER v. STATE of Louisiana, Through the DEPT. OF HIGHWAYS, et al.
    No. 60416.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: C. M. Alexander applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 347 So.2d 1249.

Writ denied. On the facts found by the court of appeal, there is no error in the judgment.


text:
    C. M. ALEXANDER v. STATE of Louisiana, Through the DEPT. OF HIGHWAYS, O. D. Creel, Con-Plex, Division of USI, Inc., John Doe, James Doe and XYZ Insurance Co.
    No. 60432.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Con-Plex, Division of U.S. Industries, Inc. and O. D. Creel applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 347 So.2d 1249.

Writ denied.


text:
    William G. WASCOM et al. v. AMERICAN INDEMNITY CORP. et al.
    No. 60434.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: William G. Wascom, et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 348 So.2d 128.

Writ denied. Judgment of court of appeal is correct.

TATE, J.,

dissents. The parents are entitled to damages by the death of their unborn children; while the mother in the present case will recover approximately the same damages by way of mental anguish; no reason of law, fact, or equity (in my opinion) should deprive the father of similar tort-caused damages. The dissenting opinion in the court of appeal correctly suggests that this tort-caused damage for which the defendants are liable under C.C. arts. 2315 et seq. should not be defeated by applications of a code article essentially intended to regulate inheritance rights in a manner never intended by the legislature.


text:
    STATE of Louisiana ex rel. Robert MATTHEWS v. Hayden J. DEES, Warden.
    No. 60397.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Robert Matthews, applying for writ of certiorari. ■

Granted. The trial judge is to hold a hearing and make a record which will demonstrate the reason relator is or is not entitled to good time credit.

TATE, J.,

concurs. At the time relator was paroled in 1965, he did not forfeit good time credit previously earned. La.R.S. 15:574.9 (1956). I do not believe that the 1968 amendment (La.R.S. 15:574.9E) is applicable, which permitted discretion in the boards to allow or disallow such credit when the parole is revoked.


text:
    Diane Allen JOHNSON, as natural tutrix of the Estate of her minor son, James V. Johnson, Jr. v. INTERNATIONAL INSURANCE COMPANY.
    No. 60435.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: International Insurance Co., et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 347 So.2d 1279.

Writ denied. The result is correct.


text:
    Allie BREAUX and Rita Breaux v. LOUISIANA DEPT. OF HIGHWAYS, an agent of the State of La., and Southern Farm Bureau Casualty Ins. Co., et al. SOUTHERN FARM BUREAU CAS. INS. CO. v. CHRYSLER CORP. et al.
    No. 60437.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Chrysler Corporation applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Iberville, 347 So.2d 1295.

Writ denied. The result is correct.


text:
    Allie BREAUX and Rita Breaux v. LOUISIANA DEPT. OF HIGHWAYS, an agent of the State of LOUISIANA, and Southern Farm Bureau Cas. Ins. Co., et al. SOUTHERN FARM BUREAU CAS. INS. CO. v. CHRYSLER CORPORATION et al.
    No. 60426.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: State of Louisiana, Department of Highways applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Iberville, 347 So.2d 1290.

Writ denied. The result is correct.


text:
    In re Milton P. MASINTER, esq., applying for supervisory writs and a stay order.
    No. 60451.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Milton Masinter applying for writs of certiorari and prohibition 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 Matthew Braniff, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 10th day of November, 1977, 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:
    Robert RODRIGUEZ v. NORTHWESTERN NATIONAL INS. CO. et al.
    No. 60408.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Robert Rodriguez and Crawler Supply Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 347 So.2d 1238.

Writ granted.

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


author: SUMMERS, J.,

text:
    STATE ex rel. Leo ALLEN v. Hayden J. DEES, Warden.
    No. 60429.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Leo Allen applying for writ of certiorari.

Writ granted. Evidentiary hearing ordered to determine whether relator waived his right to appeal.

SUMMERS, J.,

dissents from this order granting an evidentiary hearing upon the unilateral allegation of applicant that he sought an appeal after the trial judge found that he had waived his right to appeal.


author: TATE, DIXON and CALOGERO, JJ.,

text:
    STATE of Louisiana v. Ellis DELAHOUSSAYE.
    No. 60419.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Ellis Delahoussaye applying for review and writ of certiorari.

Writ granted.

TATE, DIXON and CALOGERO, JJ.,

dissent.


author: SANDERS, C. J., and SUMMERS, J.,

text:
    Glenn F. LITTERAL v. COLONIAL PIPELINE & CO.
    No. 60447.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Colonial Pipeline & Co., applying for writs of certiorari, prohibition and mandamus.

Writ denied: This court will not interfere with orderly procedures in the trial court, in the absence of irreparable injury. Relator has a remedy by appeal in the event of adverse judgmént on the merits.

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

are of the opinion that a writ should be granted.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Cyrus CARMON et al.
    No. 60477.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Leonard Vidrine applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry.

Denied.

SUMMERS, J.,

is of the opinion the writ should be granted.


author: DENNIS, J.,

text:
    Jonathan C. HARRIS and all other residents and taxpayers of the State of Louisiana v. The TRUSTEES OF the LOUISIANA PUBLIC FACILITIES AUTHORITY, PUBLIC FACILITIES CORP., et al.
    No. 60656.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: The Trustees of the La. Public Facilities Authority, Public Facilities Corp., et al. applying for remedial supervisory writs.

Writ denied. On the showing made, exercise of our supervisory jurisdiction is not warranted.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    STATE of Louisiana ex rel. Donald HUMBLE v. STATE of Louisiana.
    No. 60757.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Donald Humble applying for remedial writs.

Writ denied. Relator is not entitled to reinstitution of application for writ of cer-tiorari after its withdrawal by his attorney. However, relator’s right is reserved to assert his contentions of incompetency of counsel and lack of jurisdiction in the trial court by proper proceedings.

DIXON, J.,

concurs, principally because the action complained of took place in May, 1968.


text:
    AVOYELLES TRUST & SAVINGS BANK v. The Estate of Marvin N. LILIEDAHL Through Joann LANELL Cooley Liliedahl, Administratrix, et al.
    No. 60478.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Avoyelles Trust and Savings Bank applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles, 348 So.2d 153.

Writ denied.

TATE and DIXON, JJ.,

dissent for the reasons assigned by the dissenting opinion in the Court of Appeal.


author: SUMMERS, J.,- DENNIS, J.,

text:
    Hamilton B. WILLIS v. TUNICA HARDWOOD CO., INC., et al.
    No. 60446.
    Supreme Court of Louisiana.
    Oct. 28, 1977.
   In re: Hamilton B. Willis, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Felici-ana, 347 So.2d 1300.

Writ denied.

SUMMERS, J.,-

is of the opinion the writ should be granted.

DENNIS, J.,

would grant.


author: JONES, Judge.

text:
    Curtis BROTHERS, Plaintiffs-Appellees, v. Alva A. NULL, Defendant-Appellant.
    No. 13317.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.
    Fish & Montgomery by Roy M. Fish, Springhill, for plaintiffs-appellees.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Defendant appeals from a judgment ordering him to pay for petroleum products purchased from plaintiff and Texaco, Inc., and rejecting his reconventional demand for gasoline sales rebate which he sought to use as a setoff against plaintiff’s claim on open account. We affirm.

Plaintiff was the Texaco distributor, and for several years prior to October 15, 1970, sold Texaco products to Leon Wooten, owner and operator of a store in Cullen, Louisiana. Wooten received a rebate on gasoline sales which was paid by plaintiff and Texaco, Inc. On October 15, Wooten sold the merchandise in his store to defendant and leased him the store. At the time of this lease it was agreed by Wooten and plaintiff that Wooten would continue to receive rebates on all gasoline sold at the leased premises. Defendant acknowledged he had been informed there was an agreement between plaintiff and Wooten with regard to gasoline, and he had advised them he had no objection to it as long as he received his profit on gasoline sold by him. Null denied any knowledge of the details of the agreement.

Texaco paid as a rebate % cents per gallon to plaintiff who was to make an equal rebate contribution resulting in a total rebate of IV2 cents per gallon. Following defendant’s acquisition of the store, in accordance with plaintiff’s agreement with Wooten, rebate payments were made to Wooten. Plaintiff gave 1 cent per gallon rebate to Wooten and retained V2 cent per gallon rebate, a portion of which was used to maintain the Wooten store. Texaco was unaware the rebate was not being paid to defendant.

In November, 1971, Texaco commenced requiring the dealer to submit a signed letter directed to the distributor requesting the rebate. A letter over the signature of Alva Null, notarized by Joanne Green, requesting rebate dated November 9, 1971, was submitted to Texaco. Another letter was submitted to Texaco over Null’s signature making the same request on October 13, 1972. Null denied knowledge of either of these letters. Plaintiff admits signing the second one but testified he signed Null’s signature to the letter with Null’s permission.

In February, 1973, Texaco auditors contacted defendant and discovered he had never received any of the rebate. From this incident defendant became convinced he should have received the rebate and refused to pay his account with plaintiff and Texaco. After discovering plaintiff had not been remitting the rebate to defendant, Texaco rescinded the rebate previously paid and charged the amount of rebate payments to plaintiff. The total amount of the rebate paid by Texaco was $3,733.09.

The theory of defendant’s reconventional demand is he was entitled to a rebate of IV2 cents per gallon totaling $7,466.18, one-half of which was owed to him by plaintiff by virtue of plaintiff having collected same from Texaco, and the other of which was owed to him by plaintiff by virtue of plaintiff’s obligation to match Texaco’s rebate. Defendant urges plaintiff should not be permitted to be unjustly enriched by virtue of its wrongful acts of misrepresentation, and funds received by plaintiff acting as defendant’s agent belong to defendant.

The trial court, in rejecting defendant’s reconventional demand, found defendant knew he was not entitled to the rebate. This is a reasonable evaluation of the evidence. In the absence of manifest error we will not disturb factual findings on appeal. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The rebate plaintiff collected from Texaco was rescinded by Texaco and plaintiff satisfied Texaco’s claim for this rescinded rebate. Plaintiff misrepresented the facts to Texaco in order to induce Texaco to make the rebate. This misrepresentation on the part of plaintiff to Texaco does not entitle defendant to the rebates received by plaintiff; on the contrary, Texaco was entitled to reclaim the money paid to plaintiff under these circumstances. When Texaco rescinded the rebate, plaintiff, who had never made any agreement to pay a rebate to defendant, clearly had no obligation to make a matching rebate contribution.

The record supports the finding of the trial court.

For reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.


author: EDWARD J. STOULIG, Judge.

text:
    Philip Glenn STRALEY v. CALONGNE DRAYAGE & STORAGE, INC.
    No. 7405.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      J. Fred Patin, Lake Charles, for plaintiff-appellee.
    Drury, Lozes & Curry, René A. Curry, Jr., New Orleans, for defendant-appellant.
    Adams & Reese, Lloyd W. Hayes, New Orleans, for Smith-Willow Distributing, Inc., and Aetna Casualty & Surety Company, intervenors-appellees.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   EDWARD J. STOULIG, Judge.

The Supreme Court reinstated a $25,000 judgment of the district court in favor of Philip Straley (Straley) against Calongne Drayage & Storage, Inc. (Calongne), and remanded this matter, directing that we adjudicate Calongne’s third party claim for indemnification against its lessee, Smith-Willow Distributing, Inc. (Smith-Willow).

Briefly, Straley was injured when a hand-made elevator he was operating collapsed as he performed the duties of his employment for lessee, Smith-Willow. The demand for indemnification is based on these excerpts from the lease:

“The within leased premises and appurtenances, including * * * elevator, * * * if any * * * are accepted by the Lessee in their present condition, except for such repairs and improvements as are written into this lease. The Lessee agrees to keep them in the same order as received during the term of this lease and no repairs shall be due Lessee except such as may be especially noted herein * * * and at the termination or cancellation of this lease to return the premises broom clean and free from trash, and in like good order as received by actual delivery of the keys to Lessor or Agent, the usual decay, wear and tear excepted.”
and
“If there are any elevators, lifts, machinery, * * * the care, maintenance and repairs of same are assumed by Lessee, together with all liability or claims for damages, and Lessee shall maintain liability insurance to the extent of $100,-000/$300,000 and plate glass insurance as an additional safeguard.”
and
“Lessee assumes responsibility for the condition of the premises and Lessor will not be responsible for damage caused by * * * any vices or defects of the leased property, or the consequences thereof, except in the case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from Lessee of such defects and the damage caused thereby. * * ”

In dismissing the third party demand the trial court reasoned:

“The Smith-Willow Corporation leased the building from Calongne (Exhibit Cal-ongne # 2). It is the standard form printed commercial lease customarily used by realtors in New Orleans. By the terms of this lease Smith-Willow accepted the building and its elevator in the condition it was. Smith-Willow was additionally required to maintain the elevator, keep it in repair and obtain liability insurance up to a certain amount.
“Improper maintenance was not a contributing factor in the fall of this hoist or elevator. The Court does not conclude that the lessee Smith-Willow in this lease assumed liability and responsibility of Calongne for the defective and unsafe design and construction of the elevator. Nor was it required by the lease to protect Calongne against this negligence with liability insurance. The public liability insurance required of the lessee was to protect the lessor against claims that might arise out of the negligence of the lessee. Calongne’s third party claim against Smith-Willow for indemnification is denied.” (Emphasis in original.)

We affirm. Under the first quoted section the lessee accepted the elevator in its present condition and assumed the duty to maintain it in the same condition. The second cited provision states the lessee assumes “all liability or claims for damages” and imposes upon it the obligation to carry $100,000/$300,000 liability insurance against any claim stemming from the use of an elevator or lift. The third stipulation provides the lessee shall assume responsibility for damage caused by “any vices or defects of the leased property.”

The quoted clauses do'not express with clarity an intent by the lessee to indemnify the lessor for damages caused by his own negligent conduct. An indemnity agreement exempting one from liability based upon his own negligence must be plainly stated. Jayco Sales and Service, Inc. v. Smith, 303 So.2d 554 (La.App. 1st Cir. 1974). Calongne’s liability arose from the negligent design of the elevator rather than from simple ownership of the building. The language of the lease that shifts traditional landlord liability to the lessee is not specific enough to encompass an agreement by the lessee to indemnify the lessor for the latter’s own negligent action. An agreement to indemnify must be strictly construed. Breaux v. Rimmer & Garrett, Inc., 320 So.2d 214 (La.App. 3d Cir. 1975).

For the reasons assigned the judgment dismissing the third party petition of Cal-ongne against Smith-Willow is affirmed. Third party plaintiff is to pay the costs of this appeal.

AFFIRMED.

      . Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977).


author: LEMMON, Judge. BEER, Judge,

text:
    Cinda BYRER, wife of and Brett H. Woodard v. SOUTHERN BAPTIST HOSPITAL, INC., et al.
    No. 8300.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      Davis, Saunders, Miller & Rizzo (James T. Davis and Benjamin B. Saunders, Metaire), for plaintiffs-appellees.
    Joseph J. Weigand, Jr., Houma (Christopher B. Siegrist, Metaire), for defendants-appellants.

      Before LEMMON, STOULIG and BEER, JJ.
   LEMMON, Judge.

Plaintiff’s employer, Southern Baptist Hospital, has appealed from a judgment awarding plaintiff workmen’s compensation benefits for total and permanent disability. Issues on appeal are (1) whether plaintiff was injured by accident in the course of her employment, (2) if so, whether any continuing disability was caused by that work-related injury or by a subsequent automobile accident, and (3) whether plaintiff was totally disabled at time of trial.

Plaintiff had worked for defendant for two years as a registered nurse assigned to the surgical intensive care unit. Her duties included turning and moving patients in bed and lifting patients from one bed to another.

While moving a patient during the morning of July 2, 1974, plaintiff noticed stiffness in her lower back. At lunch, when she attempted to arise from a chair in which she had been seated for about five minutes, she experienced extreme weakness and stiffness in that area. She reported the complaint to the nurse in charge, mentioning that she had lifted an unusually heavy patient that morning. She remained on duty, but the pain became progressively worse.

The next day she was unable to report to work and was checked in the emergency room of another hospital by a doctor who advised her to remain in bed for a week. On July 11 she returned to her duties and worked for about three hours, but because of severe pain in her back and pulling in her left leg she left the job and consulted Dr. James Weilbacher, an orthopedic surgeon.

Finding mild spasm and a positive straight leg raising test, Dr. Weilbacher diagnosed a possible herniated disc at the L-4, L-5 level on the left and prescribed medication use of a lumbosacral corset, and several more days of bed rest. After four days plaintiff returned to work, wearing the corset. On July 18 she reported improvement to Dr. Weilbacher, who advised her to continue using the corset and to return in three weeks.

On August 2, 1974 plaintiff was involved in a rear end automobile collision. Dr. Weilbacher examined her and diagnosed moderate cervical strain and contusions of both knees. However, he did not detect any positive findings or record any complaints in the low back area. The doctor placed her in cervical traction in the hospital for four days.

By August 20 plaintiff had returned to work with some difficulty from neck pain, which was subsiding. On September 13 the neck was still improving, but plaintiff complained to the doctor (for the first time since the automobile accident) of continuing low back pain and aggravation of the earlier left leg pain. The doctor advised her to continue using the corset and to avoid heavy lifting. By October 24,1974 the neck was asymptomatic, but the back problems continued. Dr. Weilbacher stated that the back symptoms in the L-4, L-5 area and the leg complaints were at that time about the same as before the accident, although subjectively more severe.

For the next several months, according to plaintiff, she was able to tolerate work pretty well and kept in touch with Dr. Weilbacher informally at the hospital during working hours. However, in May, 1975 her condition worsened considerably. Since Dr. Weilbacher was moving out of state, plaintiff on his advice consulted Dr. Ray Haddad, another orthopedic surgeon.

On examination Dr. Haddad found tenderness over the lumbosacral joints and in the area of the sciatic nerve and decreased sensation in the leg and three lateral toes. X-rays revealed degenerative changes, particularly at L-4 and L-5 on the left. He diagnosed a herniated disc and sciatica and prescribed bed rest, traction in the hospital and diagnostic studies. When test results were normal, plaintiff was discharged in an improved condition to continue on conservative treatment consisting of exercise and use of the corset.

Plaintiff returned to work on June 23, 1975, but was advised to avoid lifting and pushing heavy objects. She transferred to a section involving duties of a supervisory nature.

In October, 1975 plaintiff’s symptomatol-ogy again increased, and she consented to the surgery recommended by Dr. Haddad. However, after a myelogram showed only minor changes which he considered not significant enough to warrant surgery, the doctor cancelled the scheduled operation. He maintained his previous diagnosis of a herniated disc, although he believed the condition was possibly subsiding.

Plaintiff subsequently moved to North Carolina, and at the time of the April, 1976 trial she had not yet been examined by the orthopedist to whom Dr. Haddad sent her records, but did have a scheduled appointment.

Dr. Haddad examined her on the day before trial and found a good range of motion, no spasm, no significant changes in the X-rays since May, 1975, and a normal straight leg raising test. He maintained his opinion that she had a ruptured interverte-bral disc, but found the condition had subsided, and observed “she probably still does have some residual of that particular problem, but she appears to be doing well at the present time”. He noted that she had regained most of the use of her foot and toes and that she no longer had overt signs of weakness. He felt that her present complaints were mostly of a fatigue type back discomfort after excessive use. He did not believe that future surgery was probable.

Work-Related Injury

An employee is entitled to compensation benefits if he “receives personal injury by accident arising out of and in the course of his employment”. R.S. 23:1031. Defendant argues that there was no evidence of “an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury”, as required by R.S. 23:1021(l)’s definition of “accident”. Defendant’s principal complaint is the lack of a single identifiable “event”.

The Supreme Court in Chism v. Kaiser Aluminum & Chem. Corp., 332 So.2d 784 (La.1976), held that a compensation claimant has sustained his burden of proving an “accident” when the evidence establishes the disability resulted from occurrences on the job, even if the record does not establish which of several occupational incidents precipitated the ultimate giving way of the ligaments, cartilages or organs of the. body.

The purposes of R.S. 23:1021(l)’s requirement of definiteness in time are to limit compensation to those disabilities caused by work-related incidents and to fix the date for determining prescription, wage rate, notice periods and such issues. If there is suddenness either in the precipitating incident or in the manifestation of disability, the requirement of an accident is usually satisfied. See Larson, Workmen’s Compensation, 1A, § 39.10 (1973).

In the present case plaintiff’s disabling condition manifested itself suddenly during the performance of her employment duties. These duties included activities which could cause low back pain. Furthermore, plaintiff’s back was in excellent condition when she reported to work that morning, but she was disabled before the end of her work shift.

We conclude that the evidence established plaintiff sustained a compensable accident within the contemplation of R.S. 23:1031 and R.S. 23:1021(1).

Causation of Continuing Disability

Questioning the trial court’s finding that any continuing disability was caused by the work-related July 2 injury, defendant points out that plaintiff had no radiating pain or other classic signs of disc involvement prior to the August 2 automobile accident and in fact had returned to work and was on the road to recovery when the later accident occurred.

Plaintiff was treated before and after the August accident by Dr. Weilbacher. He had initially diagnosed a possible ruptured disc and maintained that tentative diagnosis at the time of the automobile accident, although she had shown improvement and had returned to work wearing a corset. Plaintiff testified that between the two incidents she had no strength in her back and could not lift patients, carry linens, move quickly, or do house work. She also complained of “muscle weakness” or “stretching feeling” in the right leg, and Dr. Weil-bacher characterized these complaints as radiating pain. The subsequent automobile accident caused a cervical injury without complaints or findings of increased back problems. Significantly, when the back symptoms worsened six weeks after the automobile accident, the symptoms were in the exact location as before that accident.

The trial court apparently concluded, as a matter of fact, either that plaintiff’s condition caused by the work-related injury was not substantially affected by the automobile accident, or that the work-related incident was a substantial factor in bringing about the disability, even though the subsequent accident aggravated the first injury or otherwise contributed to the disabling condition. We conclude the record contains sufficient evidence to support the finding of causation on either basis.

Extent of Disability

Defendant also questions the sufficiency of proof of total and permanent disability, arguing that plaintiff continued to work as a nurse until she resigned in anticipation of the ultimately cancelled surgery and that Dr. Haddad testified plaintiff at time of trial could perform nursing duties.

When questioned about plaintiff’s present ability to return to work as a nurse, Dr. Haddad stated “I think she should try it” and “she should be able to perform most of her duties as a nurse”. He cautioned, however, that plaintiff “has to be aware that she has a back problem” and should avoid or be careful about certain activities, particularly lifting heavy loads. He believed that she could handle children and small adults unassisted with no problems, but should obtain help to handle larger persons.

The determination of the extent and duration of disability on this record is somewhat difficult. Although plaintiff’s condition had deteriorated by October, 1975 to the extent that surgery was deemed necessary, the cancellation of surgery and the move to North Carolina created a void in the medical evidence between November, 1975 and April, 1976. Dr. Haddad’s examination of the day before trial (after plaintiff had not worked in six months) revealed vast improvement. However, plaintiff’s medical history since the accident had been marked by peaks and valleys, and the doctor’s qualified and cautious advice was to “try it” at nursing. His overall testimony neither establishes that plaintiff had regained the ability to perform substantially all of her duties without substantial pain and without substantial risk of reactivation of the disabling symptoms or that her return to full duties might expose her to risk of further injury because of susceptibility to reactivation of symptoms.

We are reluctant to decide the issue of total disability on the present record, and the approach fairest to both sides is to remand the case for evidence as to plaintiff’s condition upon resuming work activities. Both sides were primarily occupied at trial with the hotly contested issues involving a work-related injury and effect on causation of the second accident. Indeed, defendant never had plaintiff examined by a doctor of its choosing, even after she quit working and surgery was scheduled. Of course, the case could be reopened after six months for review and possible modification of the judgment, but we are disinclined under the peculiar circumstances of this case to place the burden on either side to show the change necessary to obtain modification.

Accordingly, the judgment of the trial court is affirmed to the extent that compensation benefits and medical expenses are awarded through April 29,1976. That portion of the judgment awarding benefits and medical expenses after April 29, 1976 is set aside, and it is ordered that the case be remanded for additional evidence and decision in accordance with the views expressed above.

AFFIRMED IN PART, SET ASIDE AND REMANDED IN PART.

BEER, J., concurs and assigns reasons.

BEER, Judge,

concurring.

I respectfully concur in that portion of the opinion which remands the case for additional evidence although I am tentatively of the view that Dr. Haddad’s testimony, considered in the context in which it was given, essentially supports a conclusion that Mrs. Woodard could, at the time of trial, perform her duties as a nurse and was not disabled.

      . Either conclusion can be implied from the judgment which was rendered after trial of the two consolidated cases. In the automobile accident case the court awarded $4,000.00 for the cervical injury of three months duration, only $2,000.00 for aggravation of the low back injury, one-half of medical expenses between the date of the automobile accident and the date the neck injury was asymptomatic, and one-half of the estimated future medical expenses for back surgery. The hospital was assessed with the medical expenses incurred after the neck injury was cured, as well as one-half of the estimated future medical expenses.

      . Other evidence showed that a nurse is never required to move patients alone and that assistance in handling patients is provided, particularly in the intensive care unit where each nurse is assigned no more than two patients and at least one aide. However, if handling heavy loads is a substantial part of a nurse’s duties, then it is irrelevant whether assistance in doing so is available. The law looks only to the occupational capacity of the injured employee, and a claimant is considered disabled if he can perform his normal duties only with the assistance of others. Gorbach v. Prager, Inc., 310 So.2d 604 (La.1975). On this point Dr. Weilbacher stated that a nurse’s duties are strenuous.

      . The latter basis for finding disability involves a variation of the rule that an employee is totally disabled when continuation of the same work would present a potential danger to his health. See Gonzales v. Coastal Wire Warehouse, Inc., 328 So.2d 923 (La.App.4th Cir. 1976).

      . The period for payment of benefits through date of trial is relatively short, since the trial court ordered benefits to begin as of October, 1975, when plaintiff resigned in anticipation of surgery.


author: REDMANN, Judge.

text:
    Isophine Helena Ullman LAMOTHE v. Frank Eugene LAMOTHE, Jr.
    No. 8336.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Emile W. Schneider, New Orleans, for defendant-appellant.
    M. Hepburn Many (Many, Lococo & Dwyer), New Orleans, for Josephine La-mothe, intervener.

      Before REDMANN, GULOTTA and BEER, JJ.
   REDMANN, Judge.

To a mother’s rule for an executory judgment for arrearages in child support the father (through a curator ad hoc) excepted that the mother had no right of action, on the basis that the child’s having reached majority conferred the right of action upon the child. The child herself then intervened, citing Miller v. Miller, La.1975, 321 So.2d 318, and was awarded judgment for the arrearages (up until the child’s majority), from which the father (through his curator) appeals. We reverse.

Miller did not involve arrearages from the time of a child’s minority. Miller’s child reached majority in 1971 and the father continued to pay child support into 1972. Miller says only that child support decrees automatically expire upon the child’s majority.

Arrearages in an award of child support to a mother belong to and are collectible by the mother. The child has already had the support, which the mother somehow provided whether by borrowing or by expending her own capital or however; and it is the mother to whom the father’s contribution to the support is due. (We are informed that the mother’s action was not tried with the daughter’s but is still pending. Thus no question arises of the father being estopped to deny the daughter’s right because of having ascribed the right to the daughter to defeat the mother.)

Reversed.


author: GULOTTA, Judge.

text:
    L. Maurice PROVOSTY v. Harvey E. GUSS and William Kornhaus, d/b/a Blackshear & Kornhaus. Harvey E. GUSS v. L. Maurice PROVOSTY.
    Nos. 8341, 8432.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.

      L. Maurice Provosty, in pro per.
    Roccaforte & Rousselle, Frank W. Rocca-forte, New Orleans, for appellants, Harvey E. Guss and William Kornhaus, d/b/a Blackshear & Kornhaus.
    Before REDMANN, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

These consolidated suits arise out of a landlord-tenant dispute. The tenant filed suit for refund of a damage deposit plus damages and attorney’s fees due to the landlord’s alleged willful failure to comply with the requirements of LSA-R.S. 9:3251. Subsequently, the landlord filed a separate action for damages to the leased premises beyond normal wear and tear allegedly caused by tenant’s fault and for attorney’s fees and loss of rental income occasioned by his alleged failure to timely vacate.

Lessor appeals from the judgment awarding tenant the sum of the deposit ($275.00) less a credit in favor of lessor for the expense of changing a lock ($42.88). In answer to the appeal, lessee seeks judgment for the full amount of the deposit plus damages and attorney’s fees.

The parties entered into a written lease of residential premises for a term of one year commencing March 1,1975, and terminating on February 28, 1976, at a monthly rental of $275.00. Upon expiration of the lease, lessee, by agreement of the parties, was permitted to remain in the premises at the same rental for an additional month, i. e., until April 1,1976. Upon lessee’s failure to vacate the premises on that date, lessor brought eviction proceedings which resulted in an order made executory April 30, 1976, directing lessee to terminate his occupancy. In conformity with this order, lessee vacated the premises on April 30 and on May 3 surrendered a set of apartment keys to lessor’s rental agent.

On May 6, lessee made written demand for return of the $275.00 deposit. On May 14, lessor’s attorney, in a written response, itemized a total of $592.15 expenses claimed by lessor. Lessee was informed in this letter that the $275.00 deposit was being forfeited and that a demand for an additional sum of $317.15 was being made by lessor. Lessee’s suit followed.

On appeal, lessor complains that the trial judge failed to render a judgment against lessee for the amount of damage caused by the lessee (ordinary wear and tear excepted) plus stipulated attorney’s fees and costs, as well as loss of rental caused by lessee’s untimely surrender of the premises.

In seeking statutory penalties and attorney’s fees in addition to a refund of his deposit, lessee complains lessor’s letter of May 14 is an insufficient response to his refund demand. In this regard, he argues that the lessor’s letter contains no reason for the retention of the deposit as required by LSA-R.S. 9:3251 which mandates lessor to forward “an itemized statement accounting for the proceeds which are retained and giving the reasons therefor”. Lessee argues that the insufficiency of this response and lessor’s refusal to inspect the premises with lessee when the apartment was vacated constitute “willful failure” by lessor to comply with LSA-R.S. 9:3251, thereby entitling lessee to recover damages and attorney’s fees in accordance with the provisions of LSA-R.S. 9:3252 and 3253. .

At the outset, we find no merit to lessor’s claim for stipulated attorney’s fees and costs based on the written lease provisions. We reject lessor’s contention that a reconduction of the written lease took place. It is true that upon expiration of the written lease, lessor permitted lessee to continue his occupancy of the premises for one month until April 1, 1976. However, the terms of the written lease contemplated such an extension of occupancy. The pertinent lease provision is as follows:

“ * * * Should Lessor allow or permit Lessee to remain in the leased premises after the expiration or termination of this lease, this shall not be construed as a reconduction of this lease.”

Under the circumstances, we conclude that subsequent to the expiration of the written lease, a month-to-month lease existed and no reconduction of the written lease occurred.

DAMAGES TO PREMISES

The record supports the trial judge’s refusal to find lessee liable with regard to lessor’s claim for costs of cleaning the kitchen floor, stove and cabinets; of replastering and painting caused by nail holes; and of cleaning the front porch. Although a repair man employed by lessor testified concerning the poor condition of the premises, his testimony was rebutted by lessee and lessee’s friend who testified that they thoroughly cleaned the apartment, appliances and front porch. According to lessee’s friend, the premises were left cleaner than when Provosty commenced his tenancy. The trial judge simply accepted lessee’s version of the condition of the rented premises and rejected lessor’s version. Findings based on a credibility determination, absent manifest error, will not be disturbed. We find no such error.

We are in agreement also with the trial judge that lessor is not entitled to recover damages for a broken cabinet drawer, grease spots on the carpet and dents in the threshold of the apartment. Lessor simply failed to carry the burden of showing that these claims were caused by lessee’s fault.

The record does not support, however, denial of lessor’s claims for the cost of repainting the rear porch due to fire damage from lessee’s barbeque grill, for the cost of replacing a broken window pane and for the cost of removing glue from a number of windows. Though the fire-damaged boards were replaced by lessee, plaintiff’s witness could not recall if the new boards had been painted. Lessor testified and documented that $18.00 was spent in repainting the rear porch. Lessee’s witness friend further testified that a window pane had broken during the summer of 1975 and that a number of panes of glass had been taped for hurricane protection. She stated that tape had been removed but that the glue remained. Lessor’s repair man testified that at least two hours of labor were involved in cleaning approximately 40 window panes that had been taped and that the broken pane had to be replaced. Accordingly, we conclude that lessor is entitled to the sum of $18.00 (cost of painting the rear porch), the sum of $3.23 (cost of the window pane) and an additional award of $16.00 (cost of labor to clean the windows).

COST OF LOCK REPLACEMENT

We find no error in the trial judge’s award of $42.88 for the cost of replacing the locks and keys to the apartment. Prov-osty testified that upon renting the apartment he had received one set of two keys, that he had not had other keys made and that the two keys had been returned to lessor’s realtor on May 3, 1976. Lessor testified that he had given lessee a key to the patio gate and that the key was never returned to him. He further stated that on May 10, 1976, he heard someone walking in the apartment and on the following morning found a set of keys in his mailbox. The locks were replaced on May 13, 1976. Under these circumstances, we cannot say the trial judge erred in apparently concluding the lessor was reasonably concerned about security of the vacant premises caused by the strained relationship between the parties and the dispute over the return of the keys. We conclude the award for the lock replacement is proper.

LESSOR’S CLAIM FOR LOSS OF RENTAL

The record also supports a denial of lessor’s claim for loss of rental at the rate of $350.00 per month for April and $300.00 per month for the first 14 days of May, 1976. In connection with lessor’s claim for the April loss, we are persuaded that the trial judge apparently rejected the lessor’s agent’s testimony that a prospective tenant had been obtained. No corroborative testimony was offered to support the agent’s claim. It appears corroboration easily could have been obtained. In connection with the claimed May loss, lessee surrendered the keys to the apartment on Monday, May 3, 1976, having vacated the apartment on Friday, April 30. Plaintiff retained the keys over the weekend for the purpose of making an agreed inspection of the apartment with either lessor or his realtor. Under the circumstances, we conclude that lessee vacated the premises by April 30. Though it is true that the locks had to be changed, we fail to perceive any ground upon which lessee can be held liable for the lessor’s failure to rent the apartment until May 14. There is no evidence in the record to indicate that a tenant was willing to rent the apartment on May 1, 1976, at the rate of $300.00 per month but was unable to do so because of lessee’s fault.

LESSEE’S CLAIM FOR ATTORNEY’S FEES AND DAMAGES

Finally, we find no merit to lessee’s contention that lessor has willfully failed to comply with the requirements of LSA-R.S. 9:3251, thereby entitling lessee to statutory damages, costs and attorney’s fees. LSA-R.S. 9:3251 requires the lessor retaining a damage deposit or any portion thereof to forward to the lessee within one month of the termination of the tenancy “an itemized statement accounting for the proceeds which are retained and giving the reasons therefor”. LSA-R.S. 9:3252 provides for the award of damages in the event of lessor’s “willful failure” to comply with the requirements of LSA-R.S. 9:3251. Following lessee’s written demand for a refund of the deposit on May 7, lessor’s attorney sent lessee a letter itemizing lessor’s claims and stating that the deposit was being applied against the total. Lessee received copies of detailed invoices corresponding to each of the claims. Under these circumstances, we cannot say that the lessor has willfully failed to comply with the statutory requirement.

We likewise reject lessee’s argument that the refusal of lessor and his realtor to inspect the premises with him upon termination of his tenancy constitutes bad faith amounting to willful' failure to comply with LSA-R.S. 9:3251. The statute does not mention inspection of the premises and we know of no authority which requires a lessor to inspect the rental property with the departing lessee as a prerequisite to retaining the deposit. Though such an inspection might be conducive to an amicable settlement of the parties’ differences, and therefore advisable, we do not consider a lessor’s refusal to inspect to be bad faith entitling lessee to statutory damages.

The judgment of the trial court in favor of lessee is amended to reflect an increased total recovery to lessor in the sum of $80.11. In all other respects, the judgment is affirmed. Accordingly, the recast judgment is as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, L. Maurice Provosty, and against the defendants, Harvey E. Guss and William Kornhaus, for the principal amount of $275.00 with legal interest annually on the above sum from date of judicial demand until payment; subject to a credit of $80.11; each party to bear its own costs.

AMENDED AND AFFIRMED.

      . The owner’s claims were itemized as follows: cleaning and repairs, $120.40; labor and paint, $18.00; cleaning stair carpet, $10.31; cleaning entrance hall carpet, $26.50; change of locks and keys, $42.88; legal services, rule for possession of premises, trial no. 128-672, First City Court, $125.00; court costs, $16.00; loss of rental for month of April, 1976 ($350.00 less $275.00), $75.00; loss of rental from May 1, 1976 through May 14, 1976 at $300.00 per month, $158.06; total, $592.15. Lessee received copies of bills corresponding to the itemized damages and specifying them in greater detail.

      . The lease provides, in pertinent part:
      “[The Lessee agrees] at the termination or cancellation of this lease to return said premises broom clean and free from trash, and in like good order as received by actual delivery of the keys to Lessor or Agent, the usual decay, wear and tear excepted.
      “Lessee is obligated not to drive nails into the walls or woodwork, and is to hang pictures only from picture moulding, and Lessee is responsible for any damage to walls or woodwork.
      * * # * * #
      “At the expiration of this lease, or its termination for other causes, Lessee is obligated to immediately surrender possession, and should Lessee fail to do so, he consents to pay any and all damages, but in no case less than five times the rent per day, with Attorney’s fees, costs, etc. * * *
      ******
      “ * * * Should an Agent or Attorney be employed to give special attention to the enforcement or protection of any claim of Lessor arising from this lease, Lessee shall pay, as fees and compensation to such Agent or Attorney an additional sum of fifteen per cent of the amount of such claim, the minimum fee, however, to be $100.00, or if the claim be not for money, then such sum as will constitute a reasonable fee, altogether with all costs, charges and expenses.’’

      . See LSA-C.C. art. 2689 which provides as follows:
      Art. 2689. Reconduction of lease of house or room by continued possession after expiration of term
      “Art. 2689. If the tenant either of a house or of a room should continue in possession for a week after his lease has expired, without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued, and he can not be compelled to deliver up the house or room without having received the legal notice or warning directed by article 2686.”

      . In giving effect to the non-reconduction clause of the lease, we distinguish Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970). In the cited case, the lease provided:
      “ * * * Should Lessor permit Lessee to remain in the leased premises after the expiration of this lease, it shall not be construed as a reconduction of this lease, but Lessee shall occupy the leased premises as a tenant by the month.”
      The court concluded that the stipulation that lessee “shall occupy the leased premises as a tenant by the month” constituted reconduction. The provision in the lease in the instant case contains no such stipulation.

      .LSA-C.C. art. 2721 provides:
      Art. 2721. Lessee’s liability for damages through fault
      “Art. 2721. Lessee is only liable for the injuries and losses sustained through his own fault.”
      With regard to the cabinet drawer, lessor’s repairman testified that it could have been broken in many different ways, including the possibility that the materials were not good enough for continued use over a year and a half. He also acknowledged that the threshold could have been damaged in the last 3 or 4 years. Lessee’s friend testified that the carpet in the front hall was spotted and worn in the summer of 1975 and that lessee’s bicycle parked there did not drip oil. The carpet cleaner estimated the age of the carpets to be 7-8 years. Though the stains were in his opinion relatively fresh, he did not know who had made the stains or how much traffic was borne by the carpets.

      . The cost of the pane of glass is itemized on the repairman’s bill which was forwarded to lessee by lessor’s attorney. The total labor cost listed on the bill is $95.00. The repairman testified that he spent a “good day and a half” working at the apartment subsequent to lessee’s leaving. Accordingly, we calculate that a total of 12 hours was spent on the job at the hourly rate of approximately $8.00 (12 hours at $8.00 per hour equals $96.00). We consider the sum of $16.00 (2 hours required, according to the repairman) to be adequate payment for the labor involved in replacing the pane of glass and cleaning the glue markings off the windows.

      . This figure consists of the sum of $42.88 (cost of the lock and keys), $18.00 (cost of painting the rear porch), $3.23 (cost of the window pane) and $16.00 (cost of the labor for replacing the pane and cleaning the windows).