text:
    Dr. I. I. ROSEN v. Nancy Ann STOGNER, Leonard Yokum, Frank M. Edwards, Jr., Joseph H. Simpson, et al.
    No. 61984.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Dr. I. I. Rosen, applying for writs of certiorari and/or mandamus and for stay order. Parish of Tangipahoa.

Writ denied.


source: Caselaw Access Project

license: Public Domain

text:
    Dr. I. I. ROSEN, M.D. v. Leonard E. YOKUM, Joseph H. Simpson, et al.
    No. 61985.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Dr. I. I. Rosen, M.D. applying for writs of certiorari, mandamus and stay order. Parish of Tangipahoa.

Writ denied.


text:
    Dr. I. I. ROSEN v. Nancy Ann STOGNER, Joseph H. Simpson, et al.
    No. 61986.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Dr. I. I. Rosen applying for writs of certiorari, mandamus and stay order. Parish of Tangipahoa.

Writ denied.


text:
    STATE of Louisiana v. Nelson BEATTY.
    No. 62012.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition and stay order. Parish of Orleans.

Denied.

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


text:
    STATE of Louisiana v. Samson GUIDRY.
    No. 62086.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Samson Guidry, applying for writs of certiorari, prohibition, mandamus and for stay order. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana ex rel. Charles E. WHITTINGTON, II v. 15TH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE.
    No. 61951.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Charles E. Whittington, II applying for Writ of Mandamus. Lafayette Parish.

Denied moot.


text:
    STATE of Louisiana v. Willie HOLDEN.
    No. 61929.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Willie Holden applying for writs of review, prohibition, mandamus and stay order. Parish of Caddo.

Writ denied.


text:
    Geneva DAVIS v. VISKO’S, INC. and U. S. F. & G.
    No. 61930.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Geneva Davis, applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. John L. MC NEMAR, Jr.
    No. 61938.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: State of Louisiana, through the District Attorney, Ossie Brown, applying for supervisory writs. Parish of East Baton Rouge.

Writ denied. No abuse of discretion shown.


text:
    Robert J. BERNHARD et al. v. Darryl J. TSCHIRN.
    No. 61925.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Robert J. Bernhard, Edward G. Brennan and Alvin H. Lassen, applying for supervisory writs. Parish of Jefferson.

Denied. No abuse of discretion by the Court of Appeal.


text:
    STATE of Louisiana ex rel. Ervin Joseph LOUIS v. Hayden J. DEES, Warden.
    No. 61911.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Ervin J. Louis applying for writ of certiorari. Parish of St. Mary.

Writ denied.


text:
    STATE of Louisiana ex rel., Robert MATTHEWS, Tracy Lewis, Robert McClinton, Peter Ogden v. Hon. Lewis S. DOHERTY, III, Judge.
    No. 61913.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Robert Matthews, Tracy Lewis, et al. applying for writ of mandamus. Parish of East Baton Rouge.

Denied. Writ application is moot because trial is set for August 3, 1978.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 61956.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Larry Joe Phillips applying for writ of review. Orleans Parish.

Not considered. The matter is pending on appeal.


text:
    STATE of Louisiana v. Robert M. FLETCHER.
    No. 61973.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Robert M. Fletcher applying for writs of review, mandamus and certiorari. Parish of East Baton Rouge.

Not considered. Not timely.


text:
    STATE of Louisiana ex rel. Daniel Roger PUGH v. STATE of Louisiana.
    No. 61351.
    Supreme Court of Louisiana.
    April 28, 1978.
   ' In re: Daniel Roger Pugh applying for writs of certiorari and habeas corpus. East Baton Rouge Parish.

Denied.


text:
    STATE of Louisiana ex rel. Edward COUSIN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 61701.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Edward Cousin, applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    Allton JOSEPH v. OWENS ILLINOIS CO., INC. and Aetna Casualty & Surety.
    No. 61839.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Allton Joseph applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Chester R. STRICKLAND v. COURT REPORTER, CRIMINAL DISTRICT COURT-SEC. “J”, PARISH OF ORLEANS.
    No. 61873.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Chester R. Strickland, applying for writ of mandamus. Parish of Orleans.

Writ denied.


text:
    Alton Leo FRIDAY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
    No. 61882.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Alton Leo Friday applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Winn.

Writ denied. Result correct.


text:
    STATE of Louisiana ex rel. Terry PIERRE v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 61899.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Terry Pierre applying for writs of certiorari and habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Charles R. WHITTINGTON.
    No. 61906.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: State of Louisiana through the District Attorney, Ossie Brown, applying for supervisory writs. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Michael BALLARD.
    No. 61907.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Michael Ballard applying for supervisory writs. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Billy T. LAMBERT.
    No. 62078.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Billy T. Lambert applying for writ of certiorari, prohibition, mandamus and stay order. Caddo Parish.

Granted in part and denied in part. Applicant is entitled to be furnished with a transcript of the grand jury proceedings favorable to applicant and which are material and relevant to the issue of guilt or punishment. In all other respects the application is denied.


text:
    STATE of Louisiana v. Joseph C. SEPULVADO.
    No. 61954.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Joseph C. Sepulvado, applying for writ of mandamus. Parish of DeSoto.

Writ denied.


text:
    Melvin H. STEVENS d/b/a Stevens Realty v. Carol Ann TYNES a/k/a Mrs. Robert J. Tynes.
    No. 61918.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Melvin H. Stevens, d/b/a Stevens Realty applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 357 So.2d 7.

Writ denied.


text:
    TENNESSEE GAS PIPE LINE CO. v. ADMINISTRATOR, DEPARTMENT OF EMPLOYMENT SECURITY of the State of Louisiana, et al.
    No. 61908.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Tennessee Gas Pipe Line Co., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 356 So.2d 114.

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:
    Malcolm Allen ROBERTSON v. CUMIS INSURANCE COMPANY.
    No. 61909.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Malcolm Allen Robertson, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 355 So.2d 1371.

Writ denied. The result is correct.


text:
    John Marshall REED et al. v. Lee R. THOMAS, Jr., et al.
    No. 61928.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: John Marshall Reed, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bienville. 355 So.2d 277.

Denied.


text:
    Jo Ann FULLER v. C. J. UNDERWOOD et ux.
    No. 61917.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: C. J. Underwood and Janey Lou Underwood, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 355 So.2d 62.

Denied.


text:
    James H. BANKSTON v. Nina Faye Miller BANKSTON, a/k/a Mrs. Johnnie Joe Denny.
    No. 61941.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Nina Faye Denny, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 355 So.2d 58.

Writ denied.


text:
    Edwin K. HUNTER v. William F. WILSON, Jr.
    No. 61927.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: William F. Wilson, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 355 So.2d 39.

Writ denied.


text:
    CITY OF KENNER v. William Ennis LAWRENCE, Municipal Fire and Police Civil Service Commission of the City of Kenner.
    No. 61903.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: William Ennis Lawrence, Municipal Fire and Police Civil Service Commission of the City of Kenner, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 355 So.2d 268.

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:
    Clifford BOSWELL v. ROY O. MARTIN LUMBER CO., INC.
    No. 61921.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Clifford Boswell, applying for Cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vernon. 355 So.2d 33.

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:
    Cullen RAWLEY v. Betty Seals RAWLEY and Bogalusa Loan Corporation.
    No. 61904.
    Supreme Court of Louisiana.
    April 28, 1978.
   In re: Bobby Rawley, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 357 So.2d 286.

Writ denied. Under the facts of this case, the result is correct.


text:
    STATE of Louisiana v. Kerry Andras LABAUVE.
    No. 62111.
    Supreme Court of Louisiana.
    May 2, 1978.
   In re: Kerry Andras Labauve applying for remedial writs. Parish of Terrebonne.

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 Ashby W. Pettigrew, Jr., Judge of the Thirty-Second (32nd) Judicial District, Court for the Parish of Terrebonne, to transmit to the Supreme Court of Louisiana, on or before the 16th day of May, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Melvin FAUCHEAUX.
    No. 62133.
    Supreme Court of Louisiana.
    May 2, 1978.
   In re: Melvin Faucheaux, applying for writs of certiorari, prohibition, mandamus and for stay order. Parish of Jefferson.

Granted in part; denied in part. Extradition stayed until district attorney for the parish of Orleans agrees to the surrender in view of pending prosecutions in Orleans Parish. La.Code Crim.P. art. 272. Trial judge ordered to hold hearing to fix bail pending possible extradition. La.Code Crim.P. art. 272. In all other respects, the writ is denied.


text:
    STATE of Louisiana v. Edmond R. MICHAELS.
    No. 62132.
    Supreme Court of Louisiana.
    May 2, 1978.
   In re: Edmond R. Michaels applying for supervisory writs. Jefferson Parish.

Writ denied. Upon advice of district judge that this prosecution has been dismissed and/or a judgment of acquittal has been entered, the application is moot.


text:
    STATE of Louisiana v. Gilbert Ray SELF.
    No. 61902.
    Supreme Court of Louisiana.
    May 2, 1978.
   In re: State of Louisiana applying for writ of review and/or remedial writs. Parish of Sabine.

Denied.

SANDERS, C. J. would grant the writ.


text:
    Portia BRADFORD v. John DOE and New Orleans Public Service, Inc.
    No. 61947.
    Supreme Court of Louisiana.
    May 2, 1978.
   In re: New Orleans Public Service, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 613.

Denied.


text:
    STATE of Louisiana v. Ike WILLIAMS.
    No. 62144.
    Supreme Court of Louisiana.
    May 4, 1978.
   In re: Ike Williams, applying for writs of certiorari, prohibition or mandamus. Parish of Calcasieu.

Application denied.


text:
    Mrs. Violet M. Derbofen, wife of Gail T. KREHER and Mrs. Florence Juncker, widow of Dr. John C. Derbofen v. T. L. JAMES AND CO., INC. Succession of Joe W. Brown, No. 368-953, Civil District Court, Orleans Parish of Louisiana, Mrs. Dorothy Dorsett Brown, Individually and as Testamentary Executrix of the Succession of Joe W. Brown, George Dallas Williams, Sabine Dredging and Construction Co., Inc. and T. M. Dorsett.
    No. 62025.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: T. L. James and Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 963.

Denied.


text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General v. Kenneth E. PICKERING, the Louisiana Commissioner of Financial Institutions.
    No. 62019.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Kenneth E. Pickering, The Louisiana Commissioner of Financial Institutions, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.

DIXON, J., would grant.


text:
    STATE of Louisiana v. Roy A. GARLAND.
    No. 62021.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Roy A. Garland, applying for writs of certiorari, review, prohibition, mandamus. Parish of Jefferson.

Denied.

CALOGERO, J., would grant the writ.


text:
    CITY OF BATON ROUGE v. Wayne P. MADERE.
    No. 62035.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Wayne P. Madere applying for supervisory writs. Parish of East Baton Rouge.

Denied.

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


text:
    STATE of Louisiana ex rel. Eugene A. VERRETT v. CLERK OF COURT, 20TH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA, State of Louisiana.
    No. 52041.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Eugene A. Verrett applying for writ of mandamus. Parish of West Felicia-na.

Writ denied. On showing made, not entitled to trial transcript.

CALOGERO, J., and DIXON, J., would grant the writ. The transcript sought is on file in this Court.


text:
    STATE of Louisiana ex rel. Leo CUMMINGS, Petitioner v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 62042.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Leo Cummings, applying for writ of certiorari. Parish of Ouachita.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Ronald J. DANIEL.
    No. 62052.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Ronald J. Daniel, applying for supervisory writ of review, prohibition and mandamus. Parish of East Baton Rouge.

Denied.

SUMMERS, J., would grant the writ.


text:
    Miss Catherine CELESTINE et al. v. D. H. HOLMES Co., Ltd.
    No. 62013.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Catherine Celestine and Priscilla Celestine applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Denied.

CALOGERO, J., would grant.


text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION, et al.
    No. 62009.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Central Louisiana Electric Company, Inc., applying for supervisory writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge.

Denied.

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


text:
    Jeffrey COFFEY and Vernon Higgins v. Harvey KIMBLE.
    No. 62047.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Jeffrey Coffey and Vernon Higgins applying for writs of certiorari, prohibition or mandamus. Parish of St. Charles.

Granted; the court of appeal is reversed and the trial judge’s order is reinstated.

SANDERS, C. J., and SUMMERS, J., dissent from order.


text:
    STATE of Louisiana v. Pate CAUSEY.
    No. 61885.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Pate Causey applying for writs of certiorari, mandamus, prohibition and stay order. Parish of Orleans.

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 Salvador Mule, Judge of the Juvenile Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 19th day of May, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    In re Interdiction of Mrs. Nolia E. Langenbecker, widow of Alvin P. LICHTENTAG.
    No. 62002.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Robert Alexander Katz, Testamentary Executor, 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:
    STATE of Louisiana, Through the HEALTH AND SOCIAL AND REHABILITATION SERVICES ADMINISTRATION in the Interest of the minors, Joyce HOWARD, born March 20, 1962, Charles Howard, born March 9, 1964, Linda Howard, born March 17, 1965, Jimmy Howard, bom May 8, 1971.
    No. 62120.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Lois E. Howard and Shirley L. Howard applying for supervisory writs and stay. Parish of Ouachita.

Writ granted. Order of trial judge appointing Northeast Louisiana Legal Assistance Corp. to represent defendants in this matter is vacated and set aside. Trial judge ordered to appoint an individual attorney to represent defendants in this matter. La.R.S. 13:1573.

SANDERS, C. J., and SUMMERS, J., dissent from the order.


text:
    STATE of Louisiana ex rel. Gerald PERRY v. Hon. Matthew BRANIFF, Judge.
    No. 61989.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Gerald Perry applying for supervisory and remedial writs. Parish of Orleans.

Denied; appeal pending (C.Cr.P. 363) appeal has been lodged — # 62,109.


text:
    Percy FONTENOT et al. v. Alton OSCHNER, Jr., et al.
    No. 61977.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Alton Oschner, Jr., et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline.

Not considered. „Not timely filed. See Rules of Supreme Court Rule X, Sec. 5(b).


text:
    Paula Fletcher CADIERE v. WEST GIBSON PRODUCTS CO., INC., etc., et al.
    No. 62050.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Paula Fletcher Cadiere applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne.

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:
    John A. LESSER v. CITY OF BATON ROUGE, PARISH OF BATON ROUGE, State of Louisiana.
    No. 61988.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: John A. Lesser, applying for writ of mandamus. Parish of East Baton Rouge.

Writ withdrawn as moot.


text:
    STATE of Louisiana v. Robert O’BRIEN, John O’Neill, John Berman, David Grossfeld, Steve Martin, Greg Orr, Michael Tidmarsh and Richard Badalato.
    No. 61862.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Robert O’Brien, John O’Neill, John Berman, David Grossfeld, Steve Martin, Greg Orr, Michael Tidmarsh and Richard Badalato. Parish of St. Bernard.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Roland BOURGEOIS.
    No. 61744.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Roland Bourgeois applying for Writ of Habeas Corpus. Orleans Parish.

Denied.


text:
    STATE of Louisiana ex rel. John R. SMITH v. Frank BLACKBURN, Warden Louisiana State Penitentiary.
    No. 61995.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: John R. Smith applying for remedial writs. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Wallace J. CLOUD v. The Hon. Eugene W. McGEHEE, Division “I”, 19th Judicial District Court, Parish of East Baton Rouge.
    No. 61952.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Wallace J. Cloud applying for writ of mandamus. East Baton Rouge Parish.

Writ denied. On the basis of return by the trial judge there is no merit in the application.


text:
    STATE of Louisiana ex rel. Jessie McGEE v. Charles FOTI, Jr., Sheriff Orleans Parish Prison.
    No. 61996.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Jessie McGee applying for writ of habeas corpus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Michael LEGGETT v. C. Murray HENDERSON, Warden Orleans Parish Prison.
    No. 61997.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Michael Leggett, applying for remedial writs. Parish of Orleans.

Writ denied. Applicant may supplement the assignments of error filed by the attorney appointed to assist him, and he may brief them. However, John M. Lawrence is appointed to advise the appellant on this appeal.


text:
    STATE of Louisiana ex rel. Billy S. MONROE v. Charles FOTI, Jr., Sheriff, Orleans Parish, State of Louisiana.
    No. 61999.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Billy S. Monroe, applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    O K STORAGE & TRANSFER CO., INC. v. Alonzo G. ENSENAT and Mrs. Olga R. Ensenat.
    No. 62020.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Mrs. Olga R. Ensenat applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Denied.


text:
    CREDITHRIFT OF AMERICA NO. 3, INC. v. Anna O. MARGIOTTA et al.
    No. 62022.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Credithrift of America No. 3, Inc. applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ denied.


text:
    Irvin SCOTT v. R. J. SHAW CONSTRUCTION CO.
    No. 62032.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Irvin Scott, applying for writs of certiorari, prohibition and mandamus. Parish of Terrebonne.

Denied.


text:
    Joseph and Sylvia BERTRAND v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
    No. 62033.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Joseph and Sylvia Bertrand, applying for writs of certiorari. Parish of St. Charles.

Writ denied.


text:
    STATE of Louisiana ex rel. Floyd A. ST. ANDRE v. STATE of Louisiana.
    No. 62038.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Floyd A. St. Andre, applying for remedial writs. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Eddie C. GRIFFIN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 62039.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Eddie C. Griffin, applying for remedial writs. Parish of Tangipahoa.

Denied.


text:
    STATE of Louisiana ex rel. Ronnie JONES v. CLERK OF COURT, CRIMINAL DISTRICT COURT, State of Louisiana, et al.
    No. 62043.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Ronnie Jones, applying for remedial writs. Parish of Orleans.

Denied.


text:
    John H. BROWN et ux. v. INTERSTATE LIFE AND ACCIDENT INSURANCE CO.
    No. 62051.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Interstate Life and Accident Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Vernon W. JONES.
    No. 62091.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Vernon W. Jones, applying for writs of review, prohibition and/or mandamus. Parish of East Baton Rouge.

Writ denied. No abuse of discretion.


text:
    STATE of Louisiana v. Michael Reviol BOSELY.
    No. 62172.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Michael Reviol Bosely applying for writs of review and stay order. Parish of Ouachita.

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


text:
    Ruby Thaxton Rond, wife of/and Samuel ROND and Samuel Rond, Individually and for and on Behalf of his Minor Daughters, Shawn Rond and Tina Johnson v. William H. SIMS, Sr., Warehouse Corporation of American and Security Insurance Group.
    No. 61992.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: William H. Sims, Sr., Warehouse Corp. of American and Security Insurance Group, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 591.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    McDONALD’S CORPORATION v. Joan W. GLENNON, Collector of Revenue for the City of New Orleans.
    No. 62018.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: McDonald’s Corporation applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 1023.

Writ denied.

SANDERS, C. J., would grant a writ.

MARCUS, J., is of the opinion that the writ should be granted.

SUMMERS, J., would grant the writ.


text:
    Michael G. NORRIS v. Brian KING.
    No. 61924.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Brian King, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides.

Writ denied.

SANDERS, C. J., and MARCUS, J., would grant.


text:
    Charles DiGEROLAMO et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 62017.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Charles DiGerolamo, et al., applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 622.

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:
    Everett Wendell GRANDERSON, Jr. v. The NEW ORLEANS BOARD OF TRADE.
    No. 62024.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Everett Wendell Granderson, Jr., applying for certiorari, or writ review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 620.

Application not considered. Not timely.


text:
    Roma and Joseph QUARTANA v. David W. JENKS, Mrs. Romayne Jenks, Mrs. Pat Farley and Progressive Arts, Inc.
    No. 62030.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Roma and Joseph Quartana applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 355 So.2d 607.

Not considered. Not timely filed. See Rules of the Supreme Court, Rule X, Sec. 4(b).


text:
    Joel MESSER v. DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY.
    No. 62063.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Department of Corrections through the Attorney General, William J. Guste, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Civil Service Commission.

Writ not considered. Court of Appeal judgment became final because application for rehearing in Court of Appeal was filed late and no timely application has been made to this Court.


text:
    Brooklyn Bailey HAYDEN and Mrs. Mayme Belle Sanders Hayden v. Peter TORRENCE and Cumis Insurance Society, Inc.
    No. 61978.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Cumis Insurance Society Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 355 So.2d 1362.

Denied.


text:
    J. T. WHEAT v. BOUTTE AUTO SALES.
    No. 61982.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Boutte Auto Sales, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 355 So.2d 611.

Writ denied.


text:
    Gerald SIBILLE, d/b/a Sunset Fixture Works v. Oliver J. MEYER, as owner and Oliver J. Meyer, d/b/a the Oliver Company, Contractor.
    No. 62006.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Gerald Sibille, d/b/a Sunset Fixture Works, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 1003.

Denied.


text:
    Emily Louise CASE, Administratrix of the Succession of Joseph Rodney Morvant v. RELIANCE INSURANCE COMPANY. Mrs. Jeanette SANCHEZ v. RELIANCE INSURANCE COMPANY.
    No. 62007.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Emily Louise Case and Jeanette Sanchez, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 355 So.2d 601.

Denied.


text:
    LOU-ARK EQUIPMENT RENTALS CO., INC. v. HONG AH FONG, Hong Au Fong, Hong Kar Fong, Hong May Fong, Yew Bong Fong, a/k/a Larry Fong, Individually and as Curator for the minor, Jeong Fong, a/k/a Jone Fong, the National Bank of Commerce in Jefferson, A. L. Warriner & J. K. Builders, Inc. Alfred L. WARRINER, Jr. v. HONG AH FONG, Hong Au Fong, Hong Kar Fong, Hong May Fong, Yew Bong Fong, a/k/a Larry Fong, Individually and as Curator for the minor Jeong Fong, a/k/a Jone Fong & J. K. Builders, Inc.
    No. 62014.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Alfred L. Warriner, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 355 So.2d 1019.

Denied.


text:
    George ANDRY v. CANADA DRY CORPORATION, Division of Norton Simon, Inc., Lastarmco, Inc., and Glass Container Corporation.
    No. 62016.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Canada Dry Corp. and Lastarmco, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 639.

Denied.


text:
    Mrs. Violet M. Derbofen, wife of Gail T. KREHER et al. v. T. L. JAMES AND COMPANY, INC.
    No. 62023.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Violet M. Derbofen, wife of Gail T. Kreher, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 963.

Denied.


text:
    MARINE AND LAND CONTRACTORS, INC. v. MARINE RENTAL SERVICE, INC.
    No. 62031.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Marine and Land Contractors, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 356 So.2d 84.

Writ denied.


text:
    Succession of Voladia JONES.
    No. 62049.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Margaret Jones Ellison, applying for certiorari, or writ of review,, to the Court of Appeal, First Circuit. Parish of Iberville. 356 So.2d 80.

Writ denied.


text:
    Clyde WATSON et ux. v. ILLINOIS CENTRAL GULF RAILROAD et al.
    No. 62056.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Illinois Central Gulf Railroad Co. and James C. Massey, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston. 355 So.2d 1366.

Denied.


text:
    Janis Phelps Alfonso, wife of and Vernon ALFONSO, and Sandra Serigne Alfonso, wife of and Ralph Alfonso v. MARKET FACILITIES OF HOUSTON, INCORPORATED and Money Hill Plantation, Incorporated.
    No. 62062.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Janis Phelps Alfonso, wife of and Vernon Alfonso, and Sandra Serigne Alfonso, wife of and Ralph Alfonso, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 356 So.2d 86.

Writ denied.


text:
    Raymond M. PETERSON et al. v. OLINDE HARDWARE & SUPPLY CO., INC.
    No. 62064.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Olinde Hardware & Supply Co., Inc. applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 356 So.2d 92.

Denied.


text:
    Brooklyn Bailey HAYDEN and Mrs. Mayme Belle Sanders Hayden v. Peter TORRENCE and Cumis Insurance Society, Inc.
    No. 62068.
    Supreme Court of Louisiana.
    May 5, 1978.
   In re: Brooklyn B. Hayden and Mrs. Mayme Belle Sanders Hayden applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 355 So.2d 1362.

Writ denied.


author: BEER, Judge. PER CURIAM. BEER, Judge.

text:
    Candace J. DAVEY v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY.
    No. 8743.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 1978.
    Per Curiam On Rehearing Feb. 14, 1978.
    On Rehearing March 14, 1978.
    Writ Refused May 5, 1978.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, David W. Oestreicher, II, Warren M. Schultz, Jr., New Orleans, for defendant-appellant.
    Arnold & Giepert, Richard J. Arnold, New Orleans, for plaintiff-appellee.
    Before GULOTTA, BEER and BOWES, JJ.
   BEER, Judge.

Appellee Candace J. Davey, an employee of D. H. Holmes, Ltd., was an insured under the company’s group health insurance policy administered by appellant, Louisiana Health Service & Indemnity Company, a/k/a Blue Cross of Louisiana (hereafter, “Blue Cross”). She underwent maxillofa-cial surgery performed by John Kent, D.D.S., an oral surgeon. Dr. Kent had previously diagnosed her condition as mandibular retrognathia (a lack of growth of the lower jaw) and maxilla hyperplasia (an overgrowth of the upper jaw). To correct this condition, Dr. Kent performed osteotomies, which required the controlled fracturing of the jaws and resetting, with a bone graft in the lower jaw. The surgery was performed under general anesthesia, in the course of which Dr. George Byram, an orthopedist, simultaneously removed a section of the patient’s hip bone for the grafting.

Appellee made a claim for the expenses incurred, including Dr. Kent’s bill of $2,450.00. Blue Cross made certain payments by reason of the basic coverage provided in the policy, but denied the bulk of her claim, including Dr. Kent’s bill, citing the policy provision which provided:

“Article VI — Exclusions and Limitations No benefits shall be provided hereunder on account of:
* * * * *
(5) Dental care and treatments, dental surgery or dental appliances unless such charges are made necessary within ninety (90) days after accidental bodily injury effected solely through external means and occurring while the Subscriber is covered hereunder and limited further to dental treatment of injuries from such accident to natural teeth, including replacement of such teeth and setting of a jaw fractured or dislocated in such accident. (MM-8.) (Emphasis ours.)”
And:
“Article II — Supplemental Definitions
(F) PHYSICIAN — SURGEON means a duly licensed Medical Doctor (M.D.) legally entitled to practice medicine and surgery in the state in which the service is performed; engaged in the private practice of medicine; and who renders a charge to the Subscriber or Dependent for his professional service.
The term ‘Physician — Surgeon’ does not include any intern,' resident, fellow or others enrolled in a residency training program regardless of any other title by which he is designated or his position on the medical staff of the hospital. A senior resident, for example, who is referred to as an ‘assistant attending surgeon’ or an ‘associate physician’ is considered a resident since the senior year of the residency is essential to completion of the training program.
It is the specific intent and purpose of The Association to exclude reimbursement to the Subscriber for services rendered by an intern, resident, fellow or others enrolled in a residency training program regardless of whether the intern, resident, fellow or others was under the supervision of a physician or regardless of the circumstances under which services were rendered.
The term ‘Physician — Surgeon’ does not include a practicing medical doctor in the capacity of supervising interns, residents, senior-residents, fellows, or others enrolled in a training program; and further, who does not personally perform a surgical procedure or medical treatment to the Subscriber or Dependents. (MM-4.)”

Davey’s suit against the insurer resulted in an award for the full balance of her expenses (subject to $100 deductible and 80% coverage provision). In written reasons, the trial court held that although a Doctor of Dental Surgery had performed the operation, it could have been performed by a Medical Doctor and, did, in fact, require the simultaneous services of an orthopedic surgeon (M.D.). Thus, said the trial court, it was a procedure within the policy coverage.

Blue Cross appeals, contending that the terms of the policy clearly denied coverage. Appellee answers, seeking attorney’s fees and a penalty, as provided by La. R.S. 22:657 (1950), but we find this demand to be without merit in view of the rationale of our opinion as hereinafter expressed.

The chronology of this case, as it relates to recent legislative action, must be addressed: By La. Acts 1974, No. 544, § 1, now codified as La. R.S. 22:213.1 (Supp. 1977), the legislature sought to prevent the refusal of insurance companies to pay claims for surgical procedures by dentists, providing as follows:

“§ 213.1 Applicability of policy to dental care
Whenever the terms ‘physician’ or ‘medical doctor’ are used in any accident and sickness policy, medical service plan, or other contract providing for the payment of surgical procedures which are specified in the policy or contract or are performed in an accredited hospital in consultation with a licensed physician and are within the scope of a dentist’s professional license, said terms shall be construed to include a dentist, licensed under the laws of the state of Louisiana governing the practice of dentistry under Chapter 9, Title 37, Louisiana Revised Statutes, who performs such specified procedures. This section shall be applicable only with respect to policies delivered or issued for delivery in this state with an initial inception date on or after July 31, 1974; provided that whenever the carrier of said policy, plan, or contract provides for a dental program therewith, or by a supplementary policy, plan, or contract, then the payment of benefits for the surgical procedures mentioned hereinabove shall .be made pursuant to the provisions of the dental program of said carrier.”

The effective date of the supplemental agreement of the D. H. Holmes group insurance policy which provided for major medical coverage was September 1, 1969. The initial date of coverage for Candace J. Davey was July, 1973. Therefore, La. R.S. 22:213.1 cannot be here applied.

Equally clear to us — notwithstanding the trial court’s written reasons — is the fact that if appellee is to recover, such recovery must be in spite of the clear definitional terms of the master policy.

With this in mind, we turn to the pertinent portion of the record, which indicates:

“Q. When you were working at D. H. Holmes were you given a policy or a copy of your insurance policy?
A. I was given a pamphlet like that (indicating).
Q. Is that the pamphlet that you received from them showing your coverage there?
A. Yes.
Q. And this is dated 4/1/75?
A. Yes, sir.
Q. And this is the insurance policy you had at that time? Is that the only policy that you were given at D. H. Holmes for Blue Cross?
A. That’s right.
Q. This is the only indication of the coverage that you had at that time?
A. Yes. That’s all that was given out to us. To be sent with our pay checks. That would be sent if something changes.
MR. ARNOLD:
I would like to offer and introduce the document identified by the witness as being a copy of the insurance policy.
MR. OESTREICHER:
I would like to say that I object as far as this being a copy of the policy. This is a document which plaintiff has identified which was given her but I don’t think this is a copy of the policy. I believe that’s the trial today.
The only copy of the policy that I have seen is the one provided here and this is a pamphlet and if it is to be filed as a pamphlet I would not object but as far as saying it was a policy I would object to it.
MR. ARNOLD:
That was the only policy she was given.
MR. OESTREICHER:
I object to the word ‘policy.’
THE COURT:
This is the evidence of the fact that the lady was covered. The Court will accept it on that basis.
MR. OESTREICHER:
There is no identifying name, in particular of her name. I see some handwriting but as far as this being any kind of proof showing she was covered I would object to that because there is nothing on there. The only name on there is Blue Cross Plan, et cetera.
(Off record discussion.)
THE COURT:
The Court will allow the pamphlet to be placed in the record as testified to by the witness that it was the evidence given to her to show that she’s covered by the policy issued to D. H. Holmes. To that limited extent the objection is overruled. Proceed.”

The exclusion (of the surgical services of a D.D.S.) is clearly and unequivocably set forth in the definitional section of the master policy itself. However, La. R.S. 22:215 A(3)(g) (Supp.1977), provides, in pertinent part, as follows:

“. . . The insurer shall furnish to the policyholder for delivery to the insured a certificate of insurance which shall disclose the benefits, limitations, exclusions and reductions contained in the policy and the provisions relating to notice of claim, proof of loss, time of payment of claim and any other relevant information, including the name and address of the insurer. (Emphasis added.)”

The exclusion section of the pamphlet entitled “Your Blue Cross Plan” does not indicate surgical services of a D.D.S. as being excluded. It provides:

“GENERAL PROVISIONS AND EXCLUSIONS:
The contract does not provide coverage for cases covered by government programs, such as Medicare; Workmen’s Compensation or employers’ liability laws; rest cures, convalescent, custodial, domiciliary, rehabilitative or sanitaria care, tuberculosis, alcoholism or drug addiction; or treatment in governmental institutions where charges are not customarily made.”

The general coverage provisions do not help to clarify the issue. They provide:

“SURGICAL BENEFITS:
Surgical benefits up to $400.00 are paid for all types of surgical operations or for the treatment of fractures and dislocations. The amount of payment is based on the type of operation performed. Maternity benefits are also provided if maternity coverage is in effect. $100.00 is allowed for a normal delivery; $300.00 is allowed for a caesarean section. Payments are made for these services whether performed in a hospital, doctor’s office, or home.”
And, further:
“MAJOR MEDICAL EXPENSE BENEFITS : (Adult Dependents Not Eligible) Major Medical benefits cover all eligible expenses not provided for under the basic contract as listed herein. After you have incurred $100.00 of expenses not covered under the basic plan within a calendar year, Blue Cross pays 80% of your expenses up to a maximum of $50,000.00 per benefit period/lifetime. Maximum reduces to $20,000.00 at age 65 or when eligible for Medicare, whichever occurs earlier. Automatic Restoration of up to $1,000.00 per year. Mental & Nervous outpatient psychiatric care limited to 50% of ‘usual and customary’ fee, and further limited to 50 visits per year, which includes visits for psychological evaluations when performed by an M.D. (Emphasis ours.)”

Unless the use of the word “eligible” can be said to put one on notice that services of an oral surgeon might not be covered, the pamphlet does not fully comply with the certificate requirements of La. R.S. 22:215 A(3)(g).

If the pamphlet entitled “Your Blue Cross Plan” is considered to be the “certificate of insurance” described in La. R.S. 22:215 A(3)(g), it should be construed together with the master policy. See, e. g., Ledoux v. Old Republic Life Insurance Company, 233 So.2d 731 (La.App. 3rd Cir. 1970), citing, Austin v. Metropolitan Life Insurance Company, 142 So. 337 (La.App. 2 Cir. 1932), Loubat v. Audubon Life Insurance Company, 248 La. 183, 177 So.2d 281 (1965), and Finch v. Baton Rouge Production Credit Association, 154 So.2d 60 (La. App. 1 Cir. 1963).

Recently, in Colvin v. Louisiana Hospital Service, Inc., 321 So.2d 416 (La.App. 2nd Cir. 1975), writ denied, La., 323 So.2d 476, the insured received a certificate of insurance which did not advise her of a coordination of benefits rider to the master policy, and insured was not advised of such rider until after employee’s share of premiums were paid and medical expenses were incurred. The Second Circuit concluded that in such a situation, the terms (or lack thereof) of the certificate of insurance were controlling.

Colvin was questioned in W. S. McKenzie, “Work of the Appellate Courts — Insurance,” 37 La.L.Rev. 494, 495 (1977), on the following grounds:

“. . . Since the plaintiff was reimbursed for all of her medical expenses and the coordination of benefits provision only prevents double recovery, the significance of the omission in the certificate of insurance booklet is questionable.” (Emphasis ours:)

Here, however, there is no issue of double recovery. The problem is one of extent of coverage, or, conversely, extent of exclusion.

On the basis of this record, we are of the view that the pamphlet hereinabove referred to should be considered as the certificate described in La. R.S. 22:215 A(3)(g) and that, as such, it is insufficient and, perhaps, misleading.

In Aetna Insurance Company v. Emmons, 348 So.2d 1267, 1270 (La.App. 4th Cir. 1977), we observed:

“If the insurer in this case intended to require scheduling of rented equipment as a condition of coverage, it should have specifically so stated because limitations on coverage provided in an insurance policy must be clear and express in order to inform the insured he must take special measures to obtain protection. And if ambiguity is created by the words of this endorsement making it subject to the ‘terms, conditions and exclusions’ of the main policy, thus requiring scheduling of property for coverage, the ambiguity was created by the insurer and must be construed against it. (Footnotes omitted.) (Citing, Cooling v. United States Fidelity and Guaranty Co., La.App., 269 So.2d 294; Corkern v. Main Insurance Company, Chicago, Ill., La.App., 268 So.2d 138; St. Paul Fire & Marine Ins. Co. v. Roubion, La.App., 252 So.2d 679.)”

Accordingly, we conclude that the benefit of the doubt created by the wording in the pamphlet should be resolved in favor of Davey and that, on these grounds, the judgment of the Civil District Court for the Parish of Orleans is affirmed, appellant’s cost.

AFFIRMED.

PER CURIAM.

Rehearing granted. Counsel for all parties may submit additional briefs by February 21, 1978. Briefs should deal primarily with the applicability or inapplicability of La. R.S. 22:215 A(3)(g) and the applicability or inapplicability of Colvin v. Louisiana Hospital Service, Inc., La.App., 321 So.2d 416. Additional oral argument will be heard on February 28, 1978, at 1:45 p. m., at which time the court will again take the matter under submission.

ON REHEARING

BEER, Judge.

Following the rendition of our original opinion on January 11, 1978, we granted a rehearing on February 14, 1978, received and considered supplemental briefs, and heard further argument by able counsel for both parties on February 28, 1978.

The excellent application for rehearing filed in behalf of Louisiana Health Service & Indemnity Company effectively demonstrated the nonapplicability of La. R.S. 22:215 A(3)(g). We were mistaken in applying it.

The applicable statute is La. R.S. 22:215 A(l)(a). We must focus on it the same attention that we erroneously applied to La. R.S. 22:215 A(3)(g).

Specifically, we must consider the effect of the following excerpt which provides: “The insurer shall issue to the employer or association for delivery to each employee or member insured under such group policy, an individual certificate containing a statement as to the insurance protection to which he is entitled and to whom payable.” (Emphasis ours.)

The certificate issued to Candace J. Da-vey contains a paragraph entitled “GENERAL PROVISIONS AND EXCLUSIONS” which is quoted in our original opinion.

Considering the verbiage of the paragraph containing “GENERAL PROVISIONS AND EXCLUSIONS” and the verbiage of the statute, we are compelled to the conclusion that Candace J. Davey could reasonably expect- that the surgical procedures which she was obliged to undergo were covered by her policy.

This is a close call, and we are indebted to able counsel for both parties for the diligence exhibited in their presentations to us.

For the reasons noted above, our original opinion is, accordingly, reinstated insofar as it affirms the judgment of the Civil District Court for the Parish of Orleans.

ORIGINAL OPINION AFFIRMED ON OTHER GROUNDS.


author: DOMENGEAUX, Judge.

text:
    In the Matter on Wilford D. CARTER.
    No. 6497.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 8, 1978.
    Wilford D. Carter, pro se.
    Plauché, Smith, Hebert & Nieset by James R. Nieset, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS APPEAL

This is an appeal from a judgment which found appellant, Mr. Carter, in direct contempt of court as set forth in LSA-C.C.P. art. 222(1). We issued, ex proprio motu, a rule to show cause why the appeal should not be dismissed in that a contempt judgment is not a judgment from which an appeal may be taken. The appellant has timely responded to the rule.

We dismiss the appeal.

As stated by this court in Pasternack v. Lubritz, 280 So.2d 352 (La.App. 3rd Cir. 1973), “[o]ur jurisprudence is established that a judgment holding one party in a lawsuit in contempt of court is not a judgment from which an appeal may be taken. A litigant’s remedy in such a case is to apply to this Court for supervisory writs.” (citations omitted).

For the foregoing reasons, the appeal is dismissed. All costs of the appeal are assessed to appellant.

APPEAL DISMISSED.


author: EDWARDS, Judge. LOTTINGER, Judge,

text:
    AMERICAN BANK AND TRUST COMPANY OF HOUMA v. Claude DEROCHE.
    No. 11830.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied May 2, 1978.

      John T. Pettigrew, Houma, for plaintiff and appellee.
    Robert J. Prejeant, Houma, for third party and appellee.
    Ralph D. Hillman, Thibodaux, for defendant and appellant.
    Before LOTTINGER, EDWARDS and' PONDER, JJ.
   EDWARDS, Judge.

This appeal from a judgment denying the reconventional demand of the defendant, Claude Deroche, emanates from an executo-ry process, brought by the plaintiff, American Bank & Trust Company of Houma, Louisiana. The executory process action has been dismissed as the defendant extinguished the indebtedness including attorney’s fees and court costs. Deroche reconvened against the American Bank and filed a third party demand against Fidelity Life Insurance Company (Fidelity) for damages. The Trial Judge held in favor of the American Bank & Fidelity. Deroche has appealed.

The record points out that Deroche had done business with the American Bank for several years and had executed a $5,300 collateral mortgage on May 30, 1968. On July 6, 1970, Deroche executed a handnote for $5,235.35 secured by the collateral mortgage, and in addition purchased a credit disability insurance policy from American Benefit Life Insurance Company (American Benefit) through the bank for a premium of $125.00. Mr. Dan Powell, a Vice President and Loan Officer of American Bank, was the officer of the bank with whom Deroche did business. In January of 1972, Deroche suffered a disabling heart condition and notified Powell of his desire to claim disability under the insurance policy. American Benefit paid the installments on the loan during Deroche’s temporary disability.

On April 16,1973, Deroche, along with his wife, discussed with Powell the possibility of an additional loan (the proceeds to be used to pay income tax). A new loan was executed on that date for $4,911.17, the proceeds distributed as follows: $2,568.57 to pay the outstanding balance on the old note, $2,000 deposited to Deroche’s checking account, $228.40 premium for credit life insurance and $114.20 premium for credit disability insurance. Powell wrote this insurance with Fidelity.

In June of 1974 Deroche’s heart condition reoccurred disabling him permanently. Deroche was not able to pay the note; Fidelity denied coverage because of his preexisting heart condition; and the American Bank proceeded with foreclosure. Deroche had the writ of seizure and sale set aside by paying off the note along with attorney’s fees and court costs in the total amount of $5,162.88. He then reconvened claiming that the bank was at fault in not informing him that by obtaining a new insurance policy he would not be able to recover for a preexisting condition if he became disabled.

Deroche has abandoned his demands against Fidelity, and thus that part of the judgment is final.

In denying the reconventional demand, the Trial Judge did not assign written reasons, nor did he dictate oral reasons into the record.

In order for appellant to succeed he must establish that the American Bank owed a duty to him, that they breached that duty, and that he, Deroche, has suffered a loss as a result of the bank’s action. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), Lea v. Baumann Surgical Supplies, Inc., 321 So.2d 844 (La.App. 1st Cir. 1975) writs refused, 325 So.2d 279 (La.1976).

Under LSA-C.C. arts. 3016 and 3017, an intermediary or broker who negotiates a transaction between two parties is held to a fiduciary obligation to perform his duties faithfully for both parties. Thomas v. House of Toyota, 286 So.2d 504 (La.App. 1st Cir. 1973). It is clear from the record that American Bank acted as a broker between Deroche and both of the disability insurance companies, receiving a commission from both transactions. American Bank, as broker, owes a duty to this insured and is liable for any loss sustained from a breach of that duty due to its fault or negligence. LSA-C.C. art. 3003, Kieran v. Commercial Union Insurance Co. of N. Y., 271 So.2d 889 (La.App. 4th Cir. 1973).

In April of 1973 at the time the loan was made, Powell knew of Deroche’s preexisting heart condition and the previous disability. Powell admitted at trial that he was well aware that Fidelity would not insure a disability resulting from a preexisting heart condition. He further admitted that he neglected to disclose this information to Der-oche. Nonetheless, he included credit disability insurance as part of the loan just as he had done in 1970. Powell did not request a health application or even ask any questions concerning Deroche’s health. Rather, he merely charged the premium of $114.20, obtained Deroche’s signature on the insurance form, and completed the loan transaction.

Under these circumstances, Deroche was reasonable in assuming that he had paid for and received from Powell the same type of credit disability insurance that he had previously.

An insurance agent or broker who undertakes to procure insurance owes a duty to his client to use due diligence in attempting to place the insurance and to notify the client if he is unable to obtain the desired coverage. A client may recover from the agent the loss sustained as a result of the agent’s failure to procure the desired coverage when the agent’s actions warrant an assumption by the client that he is properly insured. Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728 (La.1973) and cases therein cited. See also Walker v. Fontenot, 329 So.2d 762 (La.App. 1st Cir. 1976), writ refused 332 So.2d 217 (La.1976); Riley v. Carver General Insurance Agency, Inc., 279 So.2d 698 (La.App. 4th Cir. 1973), writ refused 282 So.2d 523 (La.1973).

Having determined that American Bank breached its obligation to procure insurance for Deroche, we must determine damages. The measure of recovery is stated in LSA-C.C. art. 1934(1) as those damages that may have been contemplated. Frank v. United Companies Mortgage & Investment, Inc., 295 So.2d 231 (La.App. 3rd Cir. 1974). The essence of credit disability insurance is the payment of the loan during the disability of the debtor. Deroche is permanently disabled. Therefore the loss Deroche suffered through American Bank’s failure to acquire the insurance coverage is the total amount which he was forced to pay to be relieved of the foreclosure proceeding, $5,162.88.

For the above reasons, the judgment appealed is reversed; and judgment is rendered in favor of Deroche against the American Bank in the sum of $5,162.88, together with legal interest from the date of judicial demand until paid. All costs aré to be borne by the American Bank.

REVERSED AND RENDERED.

LOTTINGER, Judge,

concurring.

I concur in the reversal of the trial court, however, I would limit defendant’s recovery to the balance that would have been due on the July 6, 1970 note as if same had not been cancelled as of July, 1974, the date of Mr. Deroche’s disability, and additionally that amount of attorney fees, interest and court costs directly attributable to the July 6, 1970 loan. I find no duty on the bank to inform Mr. Deroche that the policy of health and accident insurance issued in connection with the April 16, 1973, loan would not cover his pre-existing heart condition.


author: REDMANN, Judge. STOULIG, Judge,

text:
    Suzanne H. BURGER v. John F. BURGER.
    No. 8811.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Harry R. Cabral, Jr., Cabral, Daniel & Merlino, Metairie, for plaintiff-respondent.
    Roger B. Jacobs, New Orleans, for defendant-relator.
    Before REDMANN, LEMMON and STOULIG, JJ.
   REDMANN, Judge.

We granted certiorari in this suit for partition of community property to review the trial judge’s refusal of protective orders against an ex-wife’s deposing of her ex-husband concerning his earnings, and subpoenaing his income tax returns and his employer’s payroll records, for the five years the parties lived apart from each other subsequent to the filing in Jefferson parish of the husband’s never-terminated “separation” (actually, divorce) action but prior to the filing in Orleans parish of the husband’s successful divorce action.

The ex-wife’s theory is that a husband’s earnings are community property under the general rule of La.C.C. 2402, even when living apart from his wife not judicially separated (under which circumstances the wife’s earnings are her separate property, C.C. 2334, 3d para.) and that her ex-husband’s earnings continued to fall into their community until the judgment in the Orleans divorce action terminated the community retroactively to the filing of that action (see C.C. 155 ).

The ex-husband contends, principally, that C.C. 155 terminates the community as of the filing of his earlier “separation” (divorce) suit, but he also argues other questions including state and federal constitutionality under equal protection clauses.

We amend the trial court’s ruling and grant, in part, the protective orders sought.

Facts

The husband sued for divorce in Jefferson on May 10, 1971 (on the grounds of two years living apart, since January 13, 1969) and in Orleans on May 13, 1976 (on the grounds of living apart since January 1970). The second divorce petition did not expressly dismiss and thus abandon the earlier action as did (in respect to an earlier separation action) that of McMichael v. McMichael, 1967, 251 La. 654, 205 So.2d 433, cert. denied, 393 U.S. 871, 89 S.Ct. 159, 21 L.Ed.2d 140; see Bynacker v. McMichael, La.App., 194 So.2d 335 at 338. Divorce was granted in Orleans on June 7, 1976. On March 4, 1977 the ex-wife filed the present proceeding for partition of the community property and sought to discover the ex-husband’s earnings by subpoenaing his and his employer’s records and by taking his deposition. The ex-husband moved to limit discovery to earnings prior to the filing of the earlier suit for “separation”, primarily on the theory that the divorce judgment dissolved the marital community retroactively to the filing of the earlier suit. The trial court reasoned that the judgment terminated the community as of the filing of the successful divorce suit and accordingly refused to disallow discovery of the ex-husband’s earnings prior to that date. On the ex-husband’s application we granted certio-rari.

Res Judicata

We agree with the trial court’s ruling that res judicata does not result from the divorce petition’s allegation that the community had been amicably settled. That allegation was not adjudicated by the judgment of divorce, which was silent on the matter. Accordingly there is no showing of partition as a thing adjudged.

Accountability for Earnings

Despite the facial theoretical correctness of the ex-wife’s view that she is entitled to an accounting of the husband’s salary after their parting, the Louisiana Supreme Court has held (1) the husband need not account for his regular salary (upon which alimony is quantified), but (2) he must account for salary bonuses; McMi-chael, supra. The accounting for the bonuses may, moreover, be satisfied by showing expenditures for “necessities, repairs of the community . . ., hospital, drug and medical bills” without any showing of why regular income did not satisfy those obligations; Bynacker v. McMichael, La.App. 4 Cir. 1975, 310 So.2d 159, 162, writ refused 313 So.2d 835. The evident basic position of the Louisiana courts, as exemplified in McMichael and Bynacker, is that C.C. 2404 allows the husband (whether living with or apart from the wife) to spend his own income which falls into the community without having to account to the wife, as long as he does not dispose of it “by fraud, to injure his wife”. Thus, in the absence of any allegation that the husband has disposed of his income in order to injure the wife, the only “accountability” that the husband has is for all of the “effects” which he possesses at the time of the community’s dissolution, C.C. 2405. (C.C. 2334 accomplishes more for the wife living apart from her husband: her earnings do not fall into the community.)

Accordingly, the ex-wife’s discovery of regular salary must be disallowed on authority of McMichael, supra, but not her discovery of the husband’s bonuses.

Community Termination

The husband’s principal argument is that the judgment of divorce terminated the community retroactively under La.C.C. 155 as of the 1971 filing of the husband’s unterminated “separation” (divorce) suit rather than as of the 1976 filing for divorce. McMichael, supra, ruled that judgment could not to that extent retroact in a wife’s 1961 divorce suit expressly dismissing her unterminated 1958 separation suit. We hold McMichael applicable. A second .divorce petition, alleging as grounds two years’ living apart, beginning at a date both different from that alleged in the first petition and less than two years prior to the first petition, amounts to an express abandonment of the first petition as ill-founded. The judgment on the second divorce petition, because it is the equivalent of and more than a separation judgment, does terminate the community retroactively to the filing of the (second) petition for divorce, by clearest implication from C.C. 155 (n. 3, supra). But termination cannot retroact to the first petition for divorce when that petition was judicially confessed to be ill-founded. See Sciambra v. Sciambra, La. App. 4 Cir. 1963, 153 So.2d 441, writ refused, 244 La. 900, 154 So.2d 768, and Hodson v. Hodson, La.App. 2 Cir. 1974, 292 So.2d 831, writ refused, 295 So.2d 177, both holding the community dissolved as of the date of the successful reconventional demand, rather than the date of the rejected original petition. (Foster v. Foster, La.App. 4 Cir. 1971, 246 So.2d 70, writ refused, 247 So.2d 867, a post-divorce partition action, held the community terminated as of the filing of a separation suit, but it does not say whether the separation action resulted in judgment. The concurring opinion speaks of “the judicial separation”, indicating that there had been a judgment of separation.)

Interpretation of C.C. 2334

The Louisiana Supreme Court has utilized C.C. 21 and 160 to reason that permanent alimony is available for a needy ex-husband from an able ex-wife and that therefore C.C. 160 is not violative of the equal protection and sex-discrimination clauses of La.Const. art. 1 § 3 in providing alimony for the “wife”. Loyacano v. Loyacano, La.1978, 358 So.2d 304. A similar interpretation in the future (overruling McMichael, supra) may find,. perhaps by “extensive interpretation” in the Civil Law tradition, Geny, Method of Interpretation (La.Law Inst. trans.) § 105, that the principle of the 1912 amendment of C.C. 2334 is that the spouse (despite that article’s word “wife”) who no longer shares a community life should not be obliged to divide his or her earnings with the other spouse. By extensive interpretation C.C. 2334’s explicit provision for the wife could apply to the husband as well, making his earnings while living separate and apart, although not judicially separated, his separate property just as the wife’s are hers.

It remains beyond our power to overrule McMichael.

Constitutional Arguments

We do not consider the state and federal equal protection arguments..

All that remains involved is the disclosure of the ex-husband’s bonuses, and his “accounting” for them with the easily-supplied means of Bynacker, supra. If there remain any “effects” at the termination of the community attributable to his earnings while non-judicially separated, the ex-husband can raise the constitutional questions when the ex-wife seeks to obtain a partition of those effects which would be separate property under C.C. 2334 if similarly acquired by a non-judicially separated wife.

Decree

The trial courts ruling is modified to maintain the ex-husband’s rule for protective orders to the extent that discovery is prohibited as to his earnings subsequent to January 1970 except that the employer’s records of bonuses from then until May 13, 1976 may be subpoenaed and the ex-husband may be deposed concerning bonuses during that period.

STOULIG, J., concurs with written reasons.

STOULIG, Judge,

concurring.

I concur in the majority opinion affirming the judgment of the trial court that the community of acquets and gains was effectively dissolved on May 13,1976, the date of the filing of the petition culminating in the judgment of divorce. C.C. arts. 155 and 159.

I also concur in the majority opinion that the ex-husband is entitled to a protective order limiting and restricting the discovery deposition to an accounting of the bonuses, but not the regular salary, he received during the period of voluntary separation (January 1970 to May 13, 1976). McMichael v. McMichael, 205 So.2d 433 (La.1967).

      . C.C. 2402 includes in the community “the produce of the reciprocal industry and labor of both husband and wife”.

      . The earnings of the wife when living separate and apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.

      .The judgment of separation from bed and board carries with it the separation of goods and effects and is retroactive to the date on which the petition for same was filed .


author: MARVIN, Judge.

text:
    Devon A. KELLY, Jr., Plaintiff-Appellant, v. VILLAGE OF GREENWOOD et al., Defendants-Appellees.
    No. 13557.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 17, 1978.
    Writ Granted March 17, 1978.

      Naff, Kennedy, Goodman, Stephens, Donovan & Parnell by David B. Clinkenbeard, Shreveport, for plaintiff-appellant.
    James E. Bookter, Bossier City, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

The Legislature adopted an election code in 1976 and 1977 to become effective on January 1, 1978. R.S. 18:402, Act 545 of 1977, requires that “every bond, tax, or other election at which a proposition is to be presented to the voters shall be held only on one of the following dates: * * * ”

In this ease, after these laws were published, but before their effective dates, the Village of Greenwood called a local option election under L.R.S. Title 26 for Tuesday, January 3, 1978, a date not specified in R.S. 18:402(F), which we hold is applicable to local option elections. The election resulted in Greenwood being voted dry. Plaintiff, a holder of a retail beer permit, sought to have the election declared null and void because it was not held on a date R.S. 18:402(F) specified as a date on which an election could be held. Election contests and appeals are expedited under the election code (R.S. 18:1401-1413) and in a hearing on plaintiff’s suit filed on February 9, 1978, the lower court rejected plaintiff’s demands. He appeals. We reverse.

We observe at the outset that the failure to hold an election on a date specified by the statute is not listed among the causes for which an election may be voided in R.S. 18:1432. We hold, however, that an election may be held void for reasons other than those listed in R.S. 18:1432 and that the list therein is not exclusive. In so holding, we state the primary issue:

Is the mere failure to hold a local option election on a date specified in the election code mandatory grounds to void the election when it is possible to hold the election on a specified date?

In meeting the issue, we follow traditional rules of statutory construction, giving due regard to the pertinent sections in each Title (18 and 26) and avoiding the presumption, if at all possible, that the election code was intended to repeal any portion of the law providing for local option elections.

R.S. 18:402(F) specifies these dates at which a proposition to be submitted to the voters shall be held:

“. . . (1) The last Saturday in October or the sixth Saturday after the last Saturday in October of 1979 and every fourth year thereafter;
“(2) The third Saturday in September or the first Tuesday after the first Monday in November of even-numbered years;
“(3) The first Saturday in April or the sixth Saturday after the first Saturday in April of any year;
“(4) The third Saturday in October or the sixth Saturday after the third Saturday in October of 1981 and every fourth year thereafter;
“(5) The third Saturday in January of any year, which, in addition to the other dates as provided for in this Subsection, shall be exclusively for elections on bonds, taxes, and other propositions or questions and for no other kind of election . .

We note that these are Saturday and not weekday dates and that further legislative purpose may be reasonably deduced to be the avoidance of the expense of multiplicity and frequency of elections which possibly create voter apathy. We also observe that the obvious intention of the Legislature is to avoid, if at all possible, even those elections held under special laws from being called on a date other than the dates specified in section 402. See R.S. 18:402(F)(6).

The local option election here was called on the basis of a voter petition (R.S. 26:583). The petition must be filed with the Registrar within 60 days from the date the first signature is affixed (584). Publication by the Registrar is required “at the earliest possible time” (584). The Registrar is also required to verify the petition and to present it to the governing body charged with the duty of calling the election.

It is at this point (the date of filing of the petition) that the governing body becomes vested with some discretion as to the date the election is called. R.S. 26:586 provides that the governing body shall order the election at a regular meeting held not less than 30 nor more than 45 days from the date the petition was filed with the governing body. This section also provides that the date fixed for the election in the ordinance shall be not less than 45 nor more than 60 days from the date the ordinance was adopted.

Here the verified petition was presented to the Greenwood governing body on October 11, 1977. Under 586 and cases interpreting the section, the governing body could have met as late as November 24, 1977. The election, called by an ordinance adopted at a meeting on or before November 24, 1977, could have been legally fixed to be held on Saturday (January 21,1978), a date specified in R.S. 18:402(F).

The election code, as originally enacted in 1976 and supplemented in 1977, provides:

. . Section 4. The provisions of this code shall become effective on January 1,1978; however, all election officials and public employees who under the constitution and the provisions of this code are charged with administering the election laws or performing any duties or functions relating thereto shall, on and after this Act is finally enacted into law, take such immediate action as is necessary in order that the provisions of this code shall become fully operative on and after the effective date hereinabove fixed.” Section 4, Act 697 of 1976.

We deem this sufficient notice to the governing body that its actions before January 1, 1978, should be taken to comply with the requirements of the election code if any part of the election process was to occur on or after January 1, 1978. In this sense, the election code was retroactive. In the sense that the mayor and governing body of a municipality are obligated by law (R.S. 26:586) to call a local option election upon proper petition, they are election officials within the meaning of the election code section quoted above.

Since this local option election could have been called on Saturday, January 21, 1978, and the Village of Greenwood chose to call an election after January 1, 1978, Greenwood’s failure to call the election on a specified date which was available to it was fatal.

We cannot fault, however, or question the good faith of the Village officials in following the procedure that they did in this somewhat confusing area of the law.

Judgment below is reversed at appellee’s cost to the extent that appellee may be legally responsible for costs and it is ordered that the local option election held on January 3, 1978, in the Village of Greenwood is declared void and of no effect.

      . See L.R.S. Title 18, Acts 697, 386, 526, 626 of 1976, and Act 545 of 1977.

      . L.R.S. 26:589 provides in part that the election . . shall be conducted as nearly as possible in accordance with the election laws of this state.” L.R.S. 26:591 provides in part that the election may be contested the same manner and under the same conditions as is provided by law for the . . . contest of elections under the general and special laws of this state.”

      .R.S. 18:1432 reads as follows:
      “The final judgment in an election contest shall declare the election void if (1) it is impossible to determine the result of election, or (2) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result in the election, if they had been allowed to vote, or (3) the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote, or (4) a combination of the factors referred to in (2) and (3) herein would have been sufficient to change the result had they not occurred.”

      . A public meeting with proper notice at the regular meeting place satisfies the requirement of regular meeting. See Nomey v. Jackson Parish Police Jury, 343 So.2d 315 (La.App. 2d Cir. 1977), writ denied.


author: GUIDRY, Judge. WATSON, Judge,

text:
    Rebecca Lynn P. FONTENOT, Individually and for and on behalf of her minor daughter, Lisa Brook Pitre, Plaintiff-Appellant, v. NEW YORK LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 6354.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Rehearing Denied May 9, 1978.
    Writ Refused June 9, 1978.

      Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Michael S. Ingram, Monroe, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.

      . Although the 'Caption of the record in this case reflects that New York Life Insurance Company is the defendant-appellee, the record reflects that Business Insurance Life of America is the proper defendant.

   GUIDRY, Judge.

The only issue for determination on appeal is whether a provision in a life insurance policy that death must occur within ninety (90) days from the date of injury in order for accidental death benefits to be payable thereunder is a valid and enforceable limitation on coverage. The trial court concluded that such contractual limitation of coverage is valid and dismissed plaintiff’s suit. Plaintiff appeals and assigns as error the failure of the trial court to conclude otherwise.

The facts giving rise to the instant litigation appear in the record by stipulation and are not disputed.

On and prior to May 15, 1976, the defendant, Business Insurance Life of America (Business Insurance) insured the life of Chauncey L. Pitre, plaintiffs’ decedent, under a group life insurance policy. The policy in question is in the face amount of $5000.00 and contains a double indemnity proviso for an additional $5000.00 if death of the insured results from accidental means as defined in the policy. The pertinent provision reads in part as follows:

“If an employee, while insured for benefits under this policy suffers any one of the losses specified in the following Schedule of Losses and Benefits as a direct result of bodily injuries effected solely and independently of all other causes through external, violent and accidental means and within 90 days after the accident which caused such loss, Business Insurance Life of America will pay the benefit set forth in such schedule.” (Emphasis ours)

The “Schedule of Losses and Benefits” referred to provides for payment of the principal sum of $5000.00 in case of loss of life.

On May 15, 1976, Chauncey L. Pitre sustained severe bodily injuries in an automobile accident. From the date of accident to the date of his death, which occurred on August 28,1976, Mr. Pitre remained continuously hospitalized at Lafayette General Hospital. Mr. Pitre’s death was caused by respiratory and cardiac arrest due to cerebral anoxia and spinal cord injury. Following his death demand for payment of benefits under the policy was made whereupon Business Insurance paid to plaintiff the face amount of the policy but refused to pay the additional benefit for accidental death because the insured’s death did not occur within ninety (90) days after the accident.

It is well settled law that a policy of insurance is a contract between the Insured and the Insurer and has the effect of law on the parties. LSA-C.C. Article 1901; Smith v. North American Company For Life, Accident & Health Insurance Company, 295 So.2d 483 (La.App. 3rd Cir. 1974), writ granted, 299 So.2d 360, reversed on other grounds, 306 So.2d 751. It is equally well settled law that insurers are at liberty to limit their liability and impose conditions upon their obligations so long as such conditions and limitations do not conflict with statutory law or offend public policy. When such conditions and/or limitations are clear and unambiguous they must be given effect as written. Muse v. Metropolitan Life Insurance Company, 193 La. 605, 192 So. 72 (1939); Andrus v. Police Jury of Parish of Lafayette, 270 So.2d 280 (La.App. 3rd Cir. 1972); Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La.App. 4th Cir. 1972) writ refused, 261 La. 824, 261 So.2d 230.

We discern no ambiguity in the quoted policy provision, its intent and meaning being crystal clear. It is conceded that plaintiffs’ decedent died more than ninety (90) days after the accident. Therefore, it must necessarily follow that plaintiffs, as beneficiaries under the policy of insurance issued by Business Insurance, are not entitled to accidental (double indemnity) death benefits unless the limiting condition in question conflicts with statutory law or violates public policy.

The condition does not conflict with statutory law. Quite to the contrary, Louisiana’s Insurance Code, specifically LSA-R.S. 22:170, recognizes a Life Insurer’s right to restrict coverage under provisions which grant additional insurance against death by accident or accidental means and to assert defenses based upon such permitted restrictions or exclusions.

The only remaining inquiry concerns whether the limiting clause in question, particularly the ninety day limitation, is violative of public policy. Able counsel for appellant contends that such a proviso does violate public policy and relies for deci-sional support on two cases emanating from jurisdictions outside Louisiana, Burne v. Franklin Life Insurance Company, 451 Pa. 218, 301 A.2d 799, decided by the Supreme Court of Pennsylvania in March of 1973, and Karl v. New York Life Insurance Company, 139 N.J.Super. 318, 353 A.2d 564. Our research has disclosed no reported case in Louisiana wherein this precise question was presented. Decisions of other jurisdictions are persuasive and should be considered in disposing of issues res nova in Louisiana, however, they are never to be considered as controlling. Hurston v. Dufour, 292 So.2d 733 (La.App. 1st Cir. 1974) writ refused, June 7, 1974.

In Burne, the majority concluded, in essence, that a 90 day time limit proviso violated public policy because such a proviso introduces into the difficult and delicate deliberations of the treating physicians and family of a mortally injured person a sinister economic factor suggesting non-treatment. The Karl majority, although conceding that Burne states the minority rule, simply adopted the public policy position of the Pennsylvania court.

Our extensive research in connection with this very interesting question, although perhaps not completely exhaustive, disclosed only Burne and Karl' as holding such a proviso violative of public policy. On the other hand, our research discloses that the Federal Appellate and State Appellate courts in every other jurisdiction where this question was presented concluded that such a proviso does not offend public policy. As early as 1899 the U.S. Circuit Court for the Northern District of California, in Brown v. United States Casualty Co., 95 F. 935 upheld the validity of such a provision and in doing so stated:

“The clause limiting liabilities of insurance companies to indemnity when death occurs from accidental means within 90 days from date of accident appears to be incorporated in the standard policies of accident and casualty insurance companies, but there are few cases upon record showing any contest of this provision. It is to be presumed that insurance companies, in formulating policies, adopt the terms best suited to the purposes of all parties; that in fixing the premium charge it is necessary to limit the liability to a stated period; that from experience and the statistics on the subject 90 days has been decided to be a fair length of time for the final result of an accident; and, this being so, its incorporation into the contract serves to protect the interests of both insurer and insured. Such a limitation is not in violation of law, and, though a just law may work injury in individual eases, it must be regarded in the same manner as the fundamental principles of government, seeking the greatest good to the greatest number.”

To the same effect are decisions emanating from the courts of Georgia, Randall v. State Mutual Insurance Company, 112 Ga.App. 268, 145 S.E.2d 41; Texas, Douglas v. Southwestern Life Insurance Company, Tex.Civ.App., 374 S.W.2d 788; Missouri, Hudson v. Mutual Ben. Health & Acc. Ass’n, Mo.App., 184 S.W.2d 188; Kentucky, Mullins v. National Casualty Co., 273 Ky. 686, 117 S.W.2d 928, 118 A.L.R. 331; Minnesota, Orenstein v. Preferred Acc. Ins. Co. of New York, 138 Minn. 10, 163 N.W. 747; Massachusetts, Brown v. Boston Casualty Co., 295 Mass. 298, 3 N.E.2d 745; and, New York, Weickselbaum v. Commercial Travelers Mut. Acc. Ass’n of America, 129 N.Y. S.2d 612. These many decisions hold in essence that the 90 day provision is valid, its conceded purpose being to minimize uncertainty and dispute as to cause of a death allegedly due to accidental means by preventing the accident from becoming too remote in time. Although not mentioned in many of the cited cases we consider important and supportive of the validity of the 90 day limitation the fact that insurance companies set their rates for double indemnity coverage in reliance on the actuarial statistics and other data pertaining to deaths within such time period.

The sheer weight of judicial authority is contrary to the position taken by the Burne and Karl courts and in our opinion states the better view. We believe that the suggestion in Burne and Karl to the effect that such a proviso tends to encourage a beneficiary or medical practitioner to deny the insured medical treatment in order to cause death within the ninety day period to be absurd and unsound. As stated by the dissenting justice in Burne:

“Certainly no court should attempt to pass judgment on these possibilities under the rubric of ‘public policy’; no more should we strike down the clause in issue because of unfounded and conjectural fear that the greed of a beneficiary will be allowed to deny proper medical treatment to the insured patient.”

We conclude that plaintiff is not entitled to recovery of accidental death benefits under the policy. It follows that plaintiffs’ demand for penalties and attorney’s fees is without foundation.

For the above and foregoing reasons the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

WATSON, J., dissents and assigns reasons.

WATSON, Judge,

dissenting:

I respectfully dissent.

Burne v. Franklin Life Insurance Company, 301 A.2d 799 (Pa., 1973) points out two reasons why a 90-day policy limitation such as this should not be enforced when death clearly results from the original accident. First, it is against public policy for medical treatment or prolongation of life to be influenced by the possibility of financial loss if care is extended beyond 90 days. Second, the purpose of such a provision is to prove that death actually resulted from a particular accident. When there is no question of causation and it is clear that the accident resulted in eventual death, the provision is not pertinent and should be ignored. Karl v. New York Life Ins. Co., 139 N.J.Super. 318, 353 A.2d 564 (1976) follows Burne, supra, and also points out that the time interval between an accident and resulting death does not have any real effect on the insurance company’s risk. The provision in question is primarily intended to prevent a company from having to pay benefits for a death caused by an intervening accident. It is well established in Louisiana that an exclusionary provision should not be construed to carry out a result beyond its purpose. Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969).

Daburlos v. Commercial Insurance Co. of Newark, N.J., 521 F.2d 18 (U.S. 3 Cir. 1975) holds that, under Pennsylvania law, an insurer who wishes to claim an exclusion or limitation of coverage must prove that the insured had knowledge of that exclusion or limitation and its effect. Louisiana requires, in LSA-R.S. 22:215 A(3)(g), that when an insurer writes a group policy:

“ * * * The insurer shall furnish to the policyholder for delivery to the insured a certificate of insurance which shall disclose the benefits, limitations, exclusions and reductions contained in the policy and the provisions relating to notice of claim, proof of loss, time of payment of claim and any other relevant information, including the name and address of the insurer. * * * ”

One obvious purpose of this requirement is to give an insured notice of any limitations or exclusions affecting his coverage. Colvin v. Louisiana Hospital Service, Inc., 321 So.2d 416 (La.App. 2 Cir. 1975), writ denied, 323 So.2d 476. There is no showing in the instant case that the insured was aware double benefits could be recovered if death occurred within 90 days of an accident. The question of knowledge of the policy provisions, actual or constructive, is not covered in the stipulation of facts. A provision of which the insured was unaware should not serve to defeat recovery. The record indicates by omission that the terms and conditions of this policy were unknown to the insured decedent, Chauncey L. Pitre, or his beneficiary. Daburlos, supra, points out that the insurance policies involved were “. . . classic contracts of adhesion, purchased in standardized form . 521 F.2d 23. That is also the case with this group policy. The policy is written by the insurer and the individual insured does not consent to its terms. Continental Automobile Association, Inc. v. Hansen, 334 So.2d 437 (La.App. 4 Cir. 1976).

The courts of Louisiana have in the past refused to give effect to policy provisions which are found to be in conflict with the public policy of the state. See O’Donnell v. Fidelity General Ins. Co., 344 So.2d 91 (La.App. 2 Cir. 1977). The provision here is in my opinion contrary to Louisiana public policy.

The 90-day provision should not be given effect. Therefore, I dissent.

      . Compare the adhesion clause stipulating applicable law (professio juris) in Davis v. Humble Oil & Refining Company, 283 So.2d 783 (La.App. 1 Cir. 1973) at 787 et seq.