text:
    STATE of Louisiana v. Thomas J. BROWN.
    No. 57868.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Ronald J. Rakosky, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant, Thomas J. Brown, was convicted of a charge that he unlawfully killed Willie Jones by criminal negligence. La. Rev.Stat. 14:32. He was found guilty in a jury trial and sentenced to serve four years, eleven months in the custody of the Department of Corrections and to pay $60 court costs, and, in default thereof, to serve thirty days in the parish prison.

On this appeal one assignment of error presents the contention that the trial judge erroneously denied a defense motion for a directed verdict.

Negligent homicide is defined by Article 32 of the Criminal Code:

“Negligent homicide is the killing of a human being by criminal negligence.
“The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
“Whoever commits the crime of negligent homicide shall be imprisoned, with or without hard labor, for not more than five years.”

Criminal negligence is defined in Article 12 of the Code as:

“Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”

Evidence presented at the trial established that at about six o’clock on the evening of July 29, 1974 defendant arrived at the apartment of his mother-in-law, Viola Poche, at 3718 Pleasure Street in the city of New Orleans. Present in the upstairs apartment were Viola Poche; Linda Williams, and her husband Clyde Williams; Willie Jones; Wilbert Trainer and Cynthia Brown, wife of defendant. Defendant, it seems, was trying to get his wife Cynthia to go home with him. An argument ensued in which she refused to do so. This apparently angered defendant, and he began cursing her.

At this point Wilbert Trainer admonished defendant, “Thomas, don’t disrespect my mama, and don’t disrespect her house. If you got anything to tell your wife, why don’t you take her home?” Whereupon defendant asked Wilbert out to fight for injecting himself into the argument. When Wilbert told him, “It didn’t mean nothing to me,” defendant went downstairs and Wilbert followed him. At that time Willie Jones was lying on the bed in the room where the controversy arose.

When Wilbert got downstairs to the porch, defendant, who had preceded him, ran to his car parked nearby on Pleasure Street. There defendant retrieved his .22 caliber pistol and returned toward the apartment. By that time all of those who were present in the apartment were then downstairs, either on the porch or in the yard.

As defendant approached the group, he walked past Wilbert and struck Willie Jones in the head with the gun. Wilbert then grabbed defendant from the rear, clutching his right wrist near the gun with his right hand and holding defendant around the shoulder with his left arm. He was trying to shake the gun out of defendant’s right hand while defendant strained to bring the gun into position to aim at Willie Jones. As Willie Jones rushed in to assist Wilbert, he grabbed for defendant’s right hand or arm and at or about the time he made contact the gun discharged, and Willie stepped back three or four steps and fell mortally wounded.

Wilbert then threw defendant to the ground and others nearby came to Wilbert’s aid. When they disarmed defendant, he fled the scene.

Willie Jones was rushed to the hospital where he died that night as a result of the gunshot wound.

This trial occurred on May 22, 1975 before Article 778 of the Code of Criminal Procedure was amended to disallow directed verdicts in jury trials. Under the test set forth in State v. Douglas, 278 So.2d 485 (La.1973), this Court will find error in the trial court’s denial of a motion for a directed verdict and reverse the conviction only where there is no evidence of the crime or one of its essential elements.

Our brief review of the facts exhibits at least some evidence of gross deviation below the standard of care expected to be maintained by a reasonably careful man under the circumstances. This is the test provided by Louisiana law. La.Rev.Stat. 14:12. It has been met here by defendant’s rash, wanton and reckless brandishing of the loaded pistol, by striking Willie Jones on the head while his hand was on the trigger, and by his persistent effort to bring the gun into position for discharge at Willie Jones while Wilbert Trainer struggled to disarm him. State v. Calvin, 337 So.2d 500 (La.1976); State v. Jones, 298 So.2d 774 (La.1974).

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


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    STATE of Louisiana v. John R. LANDRY.
    No. 57961.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Sam J. D’Amico, D’Amico & Curet, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Richard E. Chaffin, Asst. Dist. Atty., for plaintiff-respondent.
   SANDERS, Chief Justice.

The State charged John R. Landry with possession of marijuana with intent to distribute in violation of LSA-R.S. 40:966, subd. A. The defendant filed a motion to suppress the marijuana, alleging an unconstitutional search and seizure. Following the hearing on the motion, the trial judge took the matter under advisement. Later, he sustained the motion to suppress.

The Assistant District Attorney assigned error and requested time to apply to this Court for supervisory relief. The trial judge gave the State until February 13, 1976, to file its application for supervisory writs.

The State did not file a writ application with this Court. Instead, on January 29, 1976, the State filed a motion for rehearing to allow the State to present further evidence. At that time, the trial judge ordered both parties to appear on March 30,1976, to show cause why the motion for rehearing should not be granted. After argument on the motion, the trial court granted a rehearing. The defendant made timely application to this Court for supervisory writs. The trial court stayed further proceedings pending action by this Court. We granted the defendant’s application for writs. La., 332 So.2d 482 (1976).

The issue is whether a trial court, after sustaining a motion to suppress tangible evidence, may grant a rehearing on that motion to allow the State to present more evidence.

The defendant argues that the Louisiana Code of Criminal Procedure does not provide for rehearings after a ruling on a motion to suppress. Moreover, he argues that even if such a procedure is authorized, since the time within which the State was to apply to this Court for writs has expired, the ruling on the motion to suppress is final.

Article 703 of the Louisiana Code of Criminal Procedure, dealing with the motion to suppress, provides in pertinent part:

“A defendant aggrieved by an unconstitutional search or seizure may move to suppress for use as evidence at the trial on the merits, any tangible objects or other property, or documents, books, papers or other writings, on the ground that they were so obtained. A motion filed under the provisions of this paragraph must be filed no later than three judicial days before the trial on the merits begins, unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. The court in its discretion may permit the filing of such a motion to suppress at any time before or during the trial.”

The Official Revision Comment under that article (paragraph g) states:

“No special provision is made for appeals from the judge’s ruling on a motion to suppress. If the ruling is adverse to the defendant, he can reserve a bill of exceptions for use in a regular appeal of the case. If the ruling on the motion is adverse to the state, the state may proceed with the case without the evidence or confession or may apply for writs of certiorari.” (Italics ours.)

The Louisiana Code of Criminal Procedure makes no provision for a motion for rehearing to a ruling on a motion to suppress. Instead, the code article contemplates that the pre-trial motion will be heard expeditiously, with both the prosecution and defense presenting all their evidence. Once the trial judge rules upon a motion to suppress, the State’s only remedy is by writ application to this Court under our supervisory jurisdiction.

In State v. Spina, 261 La. 397, 259 So.2d 891 (1972), dealing with a pre-trial motion to quash an indictment, we held that a ruling sustaining the motion could not be reversed by the trial court that rendered it. The same principle applies here.

The State asserts, however, that by virtue of Article 851(2) of the Louisiana Code of Criminal Procedure, the defendant can allege error in the denial of a motion to suppress evidence as a ground for a new trial. Hence, the State contends that holding that it has no right to a rehearing after the court sustains a motion to suppress produces an inconsistency in the procedural law. It is true that such a remedy is available to defendant but only after conviction. The defense motion for a new trial permits the trial judge to reexamine rulings prejudicial to the defendant at any stage of the proceedings. Reexamination of the denial of a motion to suppress is based on the evidence previously adduced. The State’s motion for a rehearing to produce further evidence is not analogous to a defense motion for a new trial. In our opinion, the argument lacks merit.

We conclude that the trial judge erred in granting the State a rehearing to produce further evidence.

The defendant argues that because the time within which the State was granted to apply for writs has expired, the State no longer has a right of review by writ application, citing State v. Foret, 245 La. 187, 157 So.2d 733 (1963). The State alleges, however, that before the expiration of the original delay, the trial judge suspended or extended the time for the filing of writs pending disposition of the rehearing. At the hearing on the motion for rehearing, the State tendered evidence as to a suspension or extension, which was ruled inadmissible. The question as to whether or not the State was granted an extension to apply for writs is not before us at this time, since the State has filed no writ application here.

For the reasons assigned, the order of the district court granting the State’s motion for a rehearing on the motion to suppress is set aside and the case is remanded for further proceedings consistent with the views herein expressed.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Eugene DUPRE, Jr.
    No. 58058.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Caliste Beard, Jr., Caliste Beard, Jr., Ltd., Lafayette, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Ronald E. Dauterive, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On the night of February 5, 1976, the defendant, Eugene Dupre, Jr., was driving west on Congress Boulevard in Lafayette, Louisiana when he was stopped for speeding by Officer Andrew Pettus of the Lafayette Police Department. The officer requested the defendant’s driver’s license which was not produced, and the defendant said that he must have forgotten it. Officer Pettus asked the defendant for his name, address and date of birth and the defendant was then arrested for violating R.S. 32:415, operating a motor vehicle with a suspended driver’s license. Defendant was tried and convicted of this offense in the City Court of Lafayette and sentenced to a fine of $100 plus costs and one hundred twenty-one days in the parish jail. A portion of the jail term was suspended during good behavior and the defendant was subject to supervised probation for a period of one year. On July 1,1976 this court granted writs of review, principally to review the claimed violation of the “best evidence” rule (R.S. 15:436, 437).

The State’s first witness at trial was Ossie Savoie, license control officer and deputy custodian of State records, who testified as to the status of the defendant’s license (under suspension). The witness testified from his personal knowledge of the records and the records were not introduced into evidence. Defendant now contends that this testimony violated the “best evidence” rule embodied in R.S. 15:436, 437.

The record reveals that when Mr. Savoie began his testimony, defense counsel objected on the following grounds: (1) there was no proper foundation for testimony about the defendant’s past driving record; (2) there had been no showing yet that the defendant had been charged with any crime; (3) there was no showing that the witness was the one authorized to testify about the records. Defense counsel also stated, “I would like to make my objection general.” It is evident that the thrust of these objections was to the order of proof. At no time did defense counsel ever base his objections on the ground that the witness’ personal knowledge of the record was not the “best evidence” available. In addition, prior to testifying as to defendant’s record, Mr. Savoie stated that he did have the defendant’s record (the “best evidence”) with him in court.

The very purpose of C.Cr.P. 841, the “contemporaneous objection” statute, is to put the trial judge on notice of the alleged irregularity so that he may cure the problem. Here, had defense counsel objected to Mr. Savoie’s testimony on “best evidence” grounds, the State could merely have offered the defendant’s record into evidence. Since no contemporaneous objection was made and since the defendant’s record was in fact available, no “best evidence” objection is before this court. This assignment lacks merit.

The second assignment of error alleges the improper introduction of evidence of other crimes in violation of State v. Prieur, 277 So.2d 126 (La.1973). In his third assignment the defendant contends that the arresting officer lacked probable cause to arrest him. Finally, the defendant’s last assignment alleges that the trial court erred when it overruled defendant’s motion for a directed verdict based on the alleged failure of Officer Pettus to properly and timely advise the defendant of his Miranda rights. A review of the record reveals that the trial judge committed no error in his rulings on any of these particulars. These assignments lack merit.

Accordingly, the conviction and sentence are affirmed.


author: CALOGERO, J.,

text:
    STATE of Louisiana v. Myron AXENFIELD.
    No. 58875.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Myron Axenfield, applying for supervisory writs.

Application denied. No error in the ruling of the trial court.

CALOGERO, J.,

is of the opinion the writ should be granted.


author: MARCUS, J., DENNIS, J.,

text:
    Felix BONURA and Felix Bonura Co., Inc. v. CHRISTIANA BROS. POULTRY CO. OF GRETNA, INC., et al.
    No. 58683.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Felix Bonura and Felix Bonura Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, 336 So.2d 881, Fourth Circuit, Parish of Jefferson.

Writ refused. On the facts found by the court of appeal the result is correct.

MARCUS, J.,

is of the opinion that the writ should be granted.

DENNIS, J.,

is of the view the writ should be granted.


author: TATE and CALOGERO, JJ., DIXON, J.,

text:
    In re Marks BURTON.
    No. 58889.
    Supreme Court of Louisiana.
    Nov. 23, 1976.
   In re: Marks Burton, applying for writs of certiorari, prohibition, mandamus and Stay Order.

Granted. On the basis of the record before us the judgment of contempt is set aside.

TATE and CALOGERO, JJ.,

in concurring in grant, do so upon their understanding from the transcript that the office of the district attorney has agreed to furnish the judge the information requested.

DIXON, J.,

is of the opinion the writ should be granted, if only to explain the reasons why the trial judge was incorrect in holding the applicant in contempt.


author: DENNIS, J.,

text:
    Succession of Charles Martin FERGUSON.
    No. 58693.
    Supreme Court of Louisiana.
    Nov. 24, 1976.
   In re: Mercantile Trust Company National Association applying for writ of certiora-ri and prohibition and for a stay order.

Writ, refused. The showing made is insufficient to warrant the exercise of our supervisory jurisdiction.

DENNIS, J.,

is of the opinion the writ should be granted.


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

text:
    John TARANTO v. E. R. COOK et al.
    No. 58721.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: E. R. Cook, Edward J. Wininger, A. H. Hitch, L. Vedrenne and Henry Frank Fourreaux applying for writ of certiorari.

Writ denied: No abuse of discretion shown.

SUMMERS, J.,

is of the opinion the writ should be granted.

DENNIS, J.,

is of the opinion the writ should be granted.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. John CHARBONNET.
    No. 58715.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: State of Louisiana applying for supervisory and remedial writs.

Writ denied: We cannot say the trial court erred in its ruling.

SUMMERS, J.,

is of the opinion the writ should be granted.


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

text:
    STATE of Louisiana v. Vallie Mae MYLES.
    No. 58644.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: State of La. through District Attorney, E. Baton Rouge Parish, applying for supervisory writs.

Application denied; the showing made does not warrant the exercise of our supervisory jurisdiction.

SANDERS, C. J.,

is of the opinion that a writ should be granted. See State v. Ivy, La., 307 So.2d 587 (1975) and the authorities therein cited.

SUMMERS, J.,

is of the opinion the writ should be granted. The ruling of the trial judge is a violation of the secrecy of the grand jury contrary to express statutory authority. La.Code Criminal Procedure, Art. 434. The ruling is also contrary to repeated decisions of this Court.


text:
    STATE of Louisiana ex rel. Frank Freddie MONROE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58695.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: Frank Freddie Monroe applying for Writ of Habeas Corpus.

Granted; hearing ordered on “compulsory process” (effective counsel) issue.

SANDERS, C. J., and SUMMERS and MARCUS, JJ.,

dissent from the granting of

this writ.


text:
    James A. MOREAU v. Richard A. TONRY.
    No. 58791.
    Supreme Court of Louisiana.
    Oct. 21, 1976.
   In re: First Congressional District, Democratic Executive Committee and Richard A. Tonry, applying for Certiorari, or writ of review, to the Court of Appeal, 4th Circuit, Parish of Orleans. 338 So.2d 791.

Granted. Hearing set for 9:30 P.M. on this 21st day of October, 1976.


text:
    James A. MOREAU v. Richard A. TONRY et al.
    No. 58792.
    Supreme Court of Louisiana.
    Oct. 21, 1976.
   In re: James A. Moreau applying for Writs of Prohibition, Mandamus and Certiorari. 338 So.2d 791.

Granted. Consolidated with No. 58,791 assigned for hearing on October 21, 1976 at 9:30 p. m.


text:
    In the Matter of the EXTRADITION OF William E. CASSELBERRY, Jr.
    No. 58832.
    Supreme Court of Louisiana.
    Nov. 4, 1976.
   In the Matter of the Extradition of William E. Casselberry, Jr. applying for Writ of Certiorari or Review and Stay Order.

Writ denied and stay order rescinded— We find no merit in the allegations of the petition.


text:
    LOUISIANA LIVESTOCK SANITARY BOARD v. Jesse JOHNSON.
    No. 58575.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Jesse Johnson, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Evangeline. 335 So.2d 784.

Writ denied. No error of law.


text:
    STATE of Louisiana v. Glendale Ray SONES.
    No. 58589.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Glendale Ray Sones, applying for writs of certiorari and/or review.

Writ refused. No error of law.


text:
    Ray R. ALLEN v. Arnold J. ROSENTHAL.
    No. 58591.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Arnold J. Rosenthal, applying for writ of certiorari or review.

Writ denied. No error or abuse of discretion shown in the result.


text:
    STATE of Louisiana ex rel. David PLUMMER v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58606.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: David Plummer, applying for writ of habeas corpus.

Writ denied. There is no merit in this application. See prior petition, No. 56,264 of the Docket of this Court.


text:
    STATE of Louisiana ex rel. Robert HOWARD v. DISTRICT JUDGE, CRIMINAL DISTRICT COURT, SECTION "F" NEW ORLEANS.
    No. 58607.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Robert Howard, applying for writ of mandamus.

Writ denied. The trial judge having ruled on the application for habeas corpus, the petition for mandamus is moot.


text:
    CANE RIVER NEEDLE ART, et al. v. REON, INC., et al.
    No. 58610.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Cane River Needle Art, et al, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 335 So.2d 751.

Writ denied. On the facts found the result is correct.


text:
    CANE RIVER NEEDLE ART, et al. v. REON, INC., et al.
    No. 58624.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Cane River Needle Art, et al, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 335 So.2d 751.

Writ denied. On the facts found there is no error of law.


text:
    STATE of Louisiana v. James W. WILSON.
    No. 58614.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: James W. Wilson, applying for writs of certiorari, prohibition, mandamus and Stay Order.

Writ denied. The judgment is correct.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Dorothy Finke MIMS et al.
    No. 58625.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Dorothy Finke Mims and James F. Mims, applying for certiorari or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 336 So.2d 24.

Application denied. On the findings of the Courts below, there is no merit in the assignments of error.


text:
    STATE of Louisiana v. Randy OUTLET.
    No. 58632.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Randy Outley, applying for supervisory writs.

Writ denied. The application is moot.


text:
    C. Edward KARST v. Beth CARLSON, Executive Director, Alexandria Housing Authority and Cora R. Schley, Chairman, Alexandria Housing Authority.
    No. 58739.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: C. Edward Karst, applying for certiorari.

Writ denied. Finding no palpable error or irreparable injury, we will not interfere with the orderly proceedings of the trial court.


text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. Helen W. HENDERSON.
    No. 58801.
    Supreme Court of Louisiana.
    Nov. 5, 1976.
   In re: Helen W. Henderson, applying for supervisory writs and stay order.

Writ denied. There is no error of law in the judgment complained of.


text:
    STATE of Louisiana v. Clarence DAVIS and David Joseph Sylvester.
    No. 58843.
    Supreme Court of Louisiana.
    Nov. 10, 1976.
   In re: Clarence Davis, applying for remedial writs and stay order.

Writ denied. Based upon information from the trial court that it has severed the trials, the application is moot.


text:
    August H. BROWN v. GLOBE TOOL & ENGINEERING COMPANY et al.
    No. 58753.
    Supreme Court of Louisiana.
    Nov. 10, 1976.
   In re: Globe Tool and Engineering Co., et al, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ denied. Adequate remedy by review in this Court of this interlocutory ruling, in the event of adverse judgment against the third-party defendant.


text:
    STATE of Louisiana v. Morris BRADLEY.
    No. 58848.
    Supreme Court of Louisiana.
    Nov. 11, 1976.
   In re: Morris Bradley applying for Writ of Habeas Corpus.

Writ granted. The trial court is ordered to conduct a hearing on the issue of whether defendant should be admitted to bail.


text:
    Patrick T. MORROW d/b/a Buck 49 Restaurant v. The ESTATE of Shepard M. LATTER et al.
    No. 58868.
    Supreme Court of Louisiana.
    Nov. 12, 1976.
   In re: Patrick T. Morrow d/b/a Buck 49 Restaurant applying for Writ of Certiorari and Stay Order.

Writ denied. Insufficient showing of palpable error to disturb interlocutory rulings and orderly trial. The petitioner’s remedy is by appeal upon final judgment.


text:
    STATE of Louisiana ex rel. Carl T. ALEXIS v. WARDEN, LOUISIANA STATE PENITENTIARY.
    No. 58847.
    Supreme Court of Louisiana.
    Nov. 12, 1976.
   In re: Carl T. Alexis, applying for writs of certiorari, prohibition and mandamus.

Writ granted in part. Case remanded for trial court’s finding as to whether petitioner is entitled to credit for time served pursuant to detainer of July 30,1975, and revocation of parole on November 7th, 1975, as alleged. See La.R.S. 15:574.9 E (as amended by Act 203 of 1974) and Jennings v. Hunt, 272 So.2d 333 (La.1973).


text:
    Herschel C. ADCOCK v. SURETY RESEARCH AND INVESTMENT CORP. et al.
    No. 58647.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Herschel C. Adcock, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of E. Baton Rouge, 336 So.2d 265.

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 v. Monroe GREEN and Gary M. Thomas.
    No. 58544.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Monroe Green and Gary M. Thomas, applying for remedial writs.

Writ denied. The ruling of the trial judge is correct.


text:
    Chester F. DUPONT, d/b/a B & D Electric Company v. Marvin POOLE et al. (Little Lodge of Opelousas, Inc., Garnishee).
    No. 58621.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Little Lodge of Opelousas, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 335 So.2d 764.

Application denied. The result is correct for the reason that there was service on defendant of the motion to take a judgment pro Confesso against garnishee.


text:
    STATE of Louisiana v. Richard LABA, Sr.
    No. 58626.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Richard Laba, Sr., applying for writs of certiorari, prohibition, mandamus and for Stay Order.

Writ denied. The judgment is correct.


text:
    Linda ARADO and Willard Arado v. The CENTRAL NATIONAL INSURANCE CO. OF OMAHA et al.
    No. 58631.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Linda Arado and Willard Arado, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 337 So.2d 253.

Not considered. No application for a rehearing was filed in the Court of Appeal.


text:
    Roy Lynn CARNEY and Betty Jo Carney v. STATE FARM MUTUAL AUTOMOBILE INS. CO. et al.
    No. 58633.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Roy Lynn Carney and Betty Jo Carney, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches, 335 So.2d 759.

Application denied. No error of law.


text:
    Gerald AVERETT v. George ALEXANDER, Jr.
    No. 58634.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Gerald Averett, applying for Cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa.

Writ denied. No error in the judgment of the court of appeal.


text:
    Marian Danks GREEN, etc. v. Donald J. CENAC et al.
    No. 58635.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Marian Danks Green, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terre-bonne, 336 So.2d 349.

Writ denied. The judgment of the court of appeal is correct.


text:
    STATE of Louisiana v. Ivory GEORGE.
    No. 58637.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Ivory George, applying for writ of certiorari.

Writ denied. There is no merit to the application.


text:
    STATE of Louisiana ex rel. Frank PRESTON v. Judge SCHULINGKAMP, Section F, Criminal District Court, Parish of Orleans.
    No. 58639.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Frank Preston applying for Writ of Mandamus.

Writ denied. The mandamus application is moot. The trial court denied the petitioner’s application on March 10, 1976.


text:
    Ted F. DUNHAM, Jr., et al. v. Katharine O. DUNHAM, Testamentary Executrix of the Succession of Ted F. Dunham, Sr.
    No. 58646.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Katharine O. Dunham applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 336 So.2d 337.

Writ denied. The judgment is not final.


text:
    Hazel Carr HARTLEY v. John A. HARTLEY.
    No. 58652.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Hazel Carr Hartley, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany. 336 So.2d 291.

Writ denied. We cannot say the Court of Appeal committed an error of law.


text:
    MARGOT, INC. v. Paul PEARSON d/b/a Paul Pearson’s Hauling.
    No. 58655.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Paul Pearson and Nora Byrd, Jr., applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of West Baton Rouge. 336 So.2d 280.

Writ denied. No error in the result since Byrd is an intervening party.


text:
    BROADMOOR APARTMENTS INC., et al. v. COLLECTOR OF REVENUE.
    No. 58657.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Broadmoor Apartments, Inc. et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 336 So.2d 332.

Application denied. No error of law.


text:
    Achille P. DENOUX v. HARTFORD ACCIDENT AND INDEMNITY CO.
    No. 58658.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Hartford Accident and Indemnity Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 336 So.2d 268.

Writ denied. On the facts found, the result is correct.


text:
    STATE of Louisiana ex rel. Philip BELL v. C. Paul PHELPS, Director Department of Corrections.
    No. 58649.
    Supreme Court of Louisiana.
    Nov. 16, 1976.
   In re: Philip Bell, applying for writ of habeas corpus.

Writ denied. Applicant is not entitled to the relief prayed for. The 1974 Supreme Court decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 is by its terms prospective only.


text:
    STATE of Louisiana v. Billy Joe HUCKABY.
    No. 58306.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Billy Joe Huckaby, applying for remedial writ and stay order.

Writ denied. The stay order issued by this Court is vacated and set aside. There is no merit in this application.


text:
    STATE of Louisiana v. James PARISI et al.
    No. 58529.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: James Parisi, Robert D. Werkau, Jr., Kenneth P. Bakutis and Frank Britton, applying for writ of certiorari and review.

Writ denied. There is no merit to this application.


text:
    CITY OF BATON ROUGE v. James JARREAU.
    No. 58592.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: James Jarreau, applying for writs of certiorari.

Application for reconsideration granted. On the merits, application denied. No error of law in trial court’s ruling.


text:
    Arlene King BABINEAUX v. PERNIE-BAILEY DRILLING CO., et al.
    No. 58615.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Arlene King Babineaux, applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 335 So.2d 747.

Writ refused. On the facts found by Court of Appeal, there is no error of law in its judgment.


text:
    Mrs. Nina Laverne HUDGINS et al. v. The TRAVELERS INSURANCE CO., et al.
    No. 58659.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Mrs. Nina Laverne Hudgins, Ind., etc. et al. applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 336 So.2d 280.

Writ denied. On the facts found, the result is correct,


text:
    Mrs. Patsy W. TEMPLE, Individually, etc. et al. v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 58653.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Liberty Mutual Ins. Co., The Electric Delivery System, Inc. and George A. Kuntz, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 336 So.2d 299.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    Mrs. Patsy W. TEMPLE, Individually etc. et al. v. LIBERTY MUTUAL INS. CO. et al.
    No. 58656.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Mrs. Patsy W. Temple, Ind., etc. et al., applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 336 So.2d 299.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    Daryl B. PATIN v. J. E. JUMONVILLE, Jr., et al.
    No. 58660.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: J. E. Jumonville, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Pointe Cou-pee. 336 So.2d 259.

Writ refused. On the facts found, the result reached by the Court of Appeal is not incorrect.


text:
    BORO INDUSTRIES, INC. v. JAMES J. CULOTTA, INC.
    No. 58663.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: James J. Culotta, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 336 So.2d 878.

Writ denied. Since the record shows that the corporate defendant filed an answer as co-defendant and was represented by counsel at the trial, and that the exception of no cause of action as to it was maintained orally only after the conclusion of the trial, we find no merit to assignments of error numbers 1-3. The other assignments present contentions as to factual issues not shown to have been incorrectly decided by the court of appeal.


text:
    STATE of Louisiana ex rel. Darrell KING v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 58664.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Darrell King, applying for writ of habeas corpus.

Application denied for reasons given by district judge.


text:
    Loreto MONTAGNINO v. ALLSTATE INSURANCE COMPANY.
    No. 58665.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Allstate Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne. 336 So.2d 235.

Writ denied. On the facts found by the Court of Appeal, the judgment is correct.


text:
    Spencer FOREMAN v. Karl M. KENT et al. Ernest Leon SHIELDS et al. v. Karl M. KENT et al.
    No. 58666.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Ernest Leon Shields, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 336 So.2d 271.

Writ denied. On the facts found, the result is correct.


text:
    Spencer FOREMAN v. Karl M. KENT et al. Ernest Leon SHIELDS et al. v. Karl M. KENT et al.
    No. 58667.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Spencer Foreman, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 336 So.2d 271.

Writ denied. On the facts found, the result is correct.


text:
    Willindon JORDON v. MANGEL STORES CORP. etc., et al.
    No. 58668.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Willindon Jordon applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge.

Writ denied. On the facts found, the result is correct.


text:
    STATE of Louisiana v. Philip ROSS.
    No. 58671.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Philip Ross, applying for writ of certiorari and/or supervisory writs of review.

Writ denied. We find no merit to the assignment of error presented at the probation-revocation proceedings.


text:
    Roy THOMPSON et al. v. Paul C. LeBLANC et al.
    No. 58673.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Roy Thompson and Bernice Thompson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 336 So.2d 344.

Application not considered. Not timely filed.


text:
    Felix BONURA and Felix Bonura Co., Inc. v. CHRISTIANA BROS. POULTRY CO. OF GRETNA, INC., et al.
    No. 58680.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Joseph Christiana, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 336 So.2d 881.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


text:
    Felix BONURA and Felix Bonura Company, Inc. v. CHRISTIANA BROS. POULTRY CO. OF GRETNA, INC., et al.
    No. 58714.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Shirley McNamara, Collector of Revenue, Dept, of Revenue applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 336 So.2d 881.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Frank Anthony VANORSCHOT.
    No. 58729.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Frank Anthony Vanorschot, applying for remedial writs.

Writ refused. No merit in application.


text:
    STATE of Louisiana ex rel. Prentice ROBINSON, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58768.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: Prentice Robinson, Jr., applying for writ of habeas corpus.

Writ denied. The allegations do not show that petitioner is entitled to the relief prayed for.


text:
    STATE of Louisiana v. R. L. McDANIEL.
    No. 58851.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: R. L. McDaniel, applying for writs of certiorari, prohibition, mandamus, review and for Stay Order.

Writ denied. On the showing made, the result is not incorrect. See also our writ denials in this matter: October 22, 1976, docket numbers 58,604, and 58,745. Stay order rescinded.


text:
    STATE of Louisiana v. George W. D’ARTOIS.
    No. 58874.
    Supreme Court of Louisiana.
    Nov. 19, 1976.
   In re: State of Louisiana applying for writs of certiorari, mandamus, prohibition and review.

Writ denied. Based on an examination of the medical testimony at the hearing, we find no abuse of the trial court’s discretion, since another hearing has been scheduled for February 2nd.


text:
    STATE of Louisiana v. Lloyd POWERS.
    No. 58888.
    Supreme Court of Louisiana.
    Nov. 22, 1976.
   In re: Lloyd Powers applying for Writs of Habeas Corpus, Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. Ruling of the trial judge is correct.


author: MILLER, Judge.

text:
    Thomas A. HOBBS, Plaintiff-Appellee, v. FIREMAN’S FUND AMERICAN INSURANCE COMPANIES et al., Defendants-Appellants.
    No. 5610.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 21, 1976.
    Rehearings Denied Nov. 30, 1976.

    Writs Refused Feb. 3, 1977.

      Ford & Nugent, by Howard N. Nugent, Jr., Alexandria, for plaintiff-appellee, Hobbs.
    Gold, Hall, Hammill & Little, by Eugene Sues, Alexandria, for defendant-appellant, Fireman’s Fund.
    Allen, Gooch & Bourgeois, by Arthur Ro-bison, Lafayette, for defendant-appellant, Reserve Insur. Co.
    McLure & McLure, by John G. McLure, Alexandria, for defendant-appellee, Succ. of Lois Phillips.
    William E. Skye, Alexandria, for defendant and third party plaintiff-appellant, Herman W. Phillips.
    Stafford, Randow, O’Neal & Scott by Grove Stafford, Jr., Alexandria, Gist, Meth-vin & Trimble, by David A. Hughes, Alexandria, Polk, Foote, Randolph, Percy & Led-better, by J. Michael Percy, Alexandria, Hall, Coltharp & Lestage, by H. O. Lestage, III, DeRidder, for defendant-appellee.
    Before HOOD, MILLER and WATSON, JJ.

       Watson, J., voted for a rehearing, limited to the question of granting additional attorney’s fee for appeal.

   MILLER, Judge.

Defendants (H. W. Phillips, his primary insurer Fireman’s Fund American Insurance Company and his excess insurer third-party defendant Reserve Insurance Company, and the Succession of Lois Phillips) appeal the judgment holding them liable in solido to plaintiff Thomas A. Hobbs for $234,423.34 and ordering both insurers to pay $6,839.50 attorney fees to Phillips’ attorney as the cost of his defense. Except for recasting the judgment to recognize that Reserve was not sued by Hobbs, and to tax Fireman’s Fund with all court costs and for Phillips’ attorney fees, we affirm.

This matter was first before us on appeal from a summary judgment dismissing Hobbs’ claim. Hobbs v. Fireman’s Fund American Insurance Company, 293 So.2d 608 (La.App. 3 Cir. 1974), writs denied, La., 296 So.2d 832.

On November 28,1971 Hobbs was severely injured while riding as a guest passenger in his father’s Camaro Chevrolet which was being driven by Mrs. H. W. (Lois) Phillips. Southern Farm Bureau Casualty Insurance Company placed in the registry of court the $10,000 limits of coverage provided by its policy covering the Camaro. Hobbs sued Phillips and his primary insurer Fireman’s Fund and the Succession of Lois Phillips. Phillips filed third-party actions against Fireman’s Fund and his excess coverage insurer, Reserve, and claimed attorney fees from both Fireman’s Fund and Reserve for his defense.

MOTION TO DISMISS APPEALS

H. W. Phillips’ attorney moved to dismiss the appeals insofar as they relate to his third-party demands, urging three contentions: 1) The bond filed by Fireman’s Fund is insufficient to cover all awards in the trial court’s final judgment; 2) Reserve did not sign its bond; therefore this court is without jurisdiction; 3) Although both insurers appealed the May 11,1976 judgment, the trial court had previously signed judgments holding both insurers liable for the cost of Phillips’ defense; Phillips contends these judgments (of March 17, 1974 and July 9, 1975) were final judgments, and insurers failed to timely perfect appeals from those judgments. We reject all three.

The motions to dismiss the appeals were filed after the three-day delay provided by LSA-C.C.P. art. 2161. In this situation, we review only the jurisdiction of this court to hear the appeal or the right of the appeal itself. LSA-C.C.P. art. 2162.

The record does not indicate that the alleged defects in the bonds have been questioned prior to the filing of this motion to dismiss in this court. The sufficiency of Fireman’s Fund’s appeal bond should have been tried by rule to show cause in the trial court; this would have allowed appellants an opportunity to substitute a proper bond in the event the original bonds were found insufficient. LSA-C.C.P. art. 5123. The trial court retains jurisdiction for testing the validity or sufficiency of the bond. Appeals may not be dismissed on the ground of insufficient or defective bond unless the party who furnished the bond is first afforded an opportunity to furnish a new or supplemental bond (LSA-C.C.P. arts. 5123-5125) by proceedings filed in the trial court. LSA-C.C.P. art. 2088; Wilks v. Allstate Insurance Company, 191 So.2d 663 (La.App. 3 Cir. 1966), and cases cited therein at 191 So.2d 664.

The motion to dismiss Reserve’s bond is predicated on the holding in Guilliot v. City of Kenner, 326 So.2d 359 (La.1976). It was there held that the Court of Appeal is empowered to determine whether what purports to be a bond is, in fact, a bond. In Guilliot, no one signed either the bond or the accompanying affidavits. In the instant case, the documents were signed by the surety on Reserve’s bond. There is a bond, and the test of the alleged defects of that bond should have been made in the trial court. LSA-C.C.P. art. 5123, et seq.

Since the sufficiency and validity of the bonds were not contested in the trial court, the motion to dismiss the appeals on those grounds has no merit.

The third basis for dismissal is founded on two arguments. First, that although the trial court signed one final judgment on May 11, 1976, that judgment was in effect two judgments—one on the main demand and one on the third-party demand. Mover relies on Perot v. United States Casualty Co., 98 So.2d 584 (La.App. 2 Cir. 1957). We distinguish Perot; in Perot, there were two separate judgments signed on different days. The appeal from the first judgment was not timely perfected. In the instant case there was only one trial, one opinion, one signed judgment (which disposed of both the main and third-party demands), and one order of appeal granted each appellant. The appeals were timely perfected as to all phases of the May 11, 1976 final judgment. Appeals are favored and will not be dismissed for technicalities. McCann v. Todd, 201 La. 953, 10 So.2d 769 (1942).

The second argument contends that the March 17, 1974 and July 9, 1975 judgments (holding that the insurers would be responsible to Phillips for his cost of defending the claim) were final judgments. We reject that contention because those were interlocutory judgments. LSA-C.C.P. art. 1841.

Attorney’s fees earned in connection with litigation on the main and/or third-party demand are preliminary matters and judgments relating to attorney’s fees do not dispose of the merits of the claim. Anderson v. Southern Consumers Education Foundation, Inc., 196 So.2d 686 (La.App. 3 Cir. 1967). The preliminary judgments did not fix the number of hours worked by Phillips’ attorney and did not award a specific fee. Being interlocutory decrees which did not expose the insurers to irreparable harm, the decrees were not appealable at that time. LSA-C.C.P. arts. 1841, 2083. The first judgment which named a specific dollar award for the attorney’s fees was the May 11, 1976 judgment, and the appeals from that decree were timely perfected. The preliminary or interlocutory judgments had to await rendition of a final appealable judgment on the merits. People of Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752 (La.1968); Texas Gas Transmission Corp. v. Soileau, 251 So.2d 104 (La.App. 3 Cir. 1971).

ON THE MERITS

A summary of some of the facts brought out during the extended trial is necessary to understand the relationship of the litigants. Mr. and Mrs. Herman Wesley Phillips owned a valuable farm and lovely home located thereon in Walls, Mississippi just outside the city of Memphis, Tennessee. Over a long term, Mr. Phillips successfully operated his large trucking concern and his wife Lois was a key employee in the business. Their oldest child (about 21 years old at the time of this accident) is retarded; some two years before this accident, their second son, a teenager, was killed while driving his car; their teenage daughter is their third child. Shortly after their teenage son was killed, the Phillips employed Hobbs to help them look after their retarded son; Hobbs was about the age of their son who had been killed.

Because of Mr. Phillips’ drinking problem Mr. and Mrs. Phillips had separated on at least three occasions prior to the September 17, 1971 separation which is particularly relevant here. During each of the prior separations Mrs. Phillips was well supported by her husband; she took the children with her and spent considerable time making special arrangements to care for their retarded son. Mrs. Phillips also attempted to continue working in her husband’s trucking business, for her expertise was indispensible to the successful operation. Before the last separation the Phillips had discussed the favorable accommodations available for their retarded son near Mrs. Phillips’ birthplace in Louisiana.

Hobbs lived in the Phillips’ home in order to better care for their retarded son. Hobbs and the Phillips’ teenage daughter began to interest one another; a continuing personal conflict arose between Hobbs and Mr. Phillips; that conflict together with Phillips’ drinking problem precipitated the September 17, 1971 separation and the one before that.

On September 17, angry words were exchanged between Hobbs and Phillips in the course of which both parties were armed. The row ended in typical fashion — Mrs. Phillips packed some of her personal clothing and a few essential items and left. She took the retarded son with her in her new Chevrolet station wagon; her daughter came along in her own new Pontiac LeMans (both vehicles were listed in Phillips’ insurance policies); and Hobbs came along in his father’s Camaro which had been purchased for Hobbs use. The group drove to Mrs. Phillips’ birthplace, Rapides Parish, Louisiana, and stayed with one of her brothers until she could rent a house. Upon arrival in Louisiana, Mrs. Phillips placed her retarded son in a special home for retarded children and enrolled her daughter in a trade school. She opened a checking account in an Alexandria bank and purchased some furniture from a local store. At Mrs. Phillips’ request Mr. Phillips sent a few items of furniture from their Mississippi home. Her Mississippi automobile license was about to expire so she purchased a Louisiana license plate and a Louisiana driver’s license. In general, she established a home for her daughter and retarded son with Hobbs residing in the household to help look after the retarded son.

Before leaving Mississippi on September 17th, Mrs. Phillips filed criminal charges against her husband, which charges were later dismissed. She returned on September 23rd to file a claim for separate maintenance and she alleged she was a domiciliary of Mississippi at that time. That suit never came to trial and no proceedings were filed by either party to seek a judicial separation or divorce. Mr. Phillips sent $1,200 per month to Mrs. Phillips and in addition contacted, by telephone, a merchant near Mrs. Phillips’ Rapides Parish home to arrange an unlimited charge account for his wife’s use, and it was used by Mrs. Phillips. The Phillips talked by telephone frequently; Mr. Phillips urged reconciliation and Mrs. Phillips rejected his requests because of his drinking problem.

On the evening of November 27, 1971 Mrs. Phillips’ teenage daughter was going out with some new friends. She left that evening with the understanding that she and her friends would be at one of three different night clubs in Avoyelles Parish. Mrs. Phillips and Hobbs went to a church dance along with the family of one of Mrs. Phillips’ brothers. Late in the evening Mrs. Phillips attempted to locate her daughter by telephone, but the evidence indicates she could not find her. Mrs. Phillips was in Hobbs’ Camaro and Hobbs was driving until they left the church dance. They returned to Mrs. Phillips’ home looking for the teenage daughter. When they found no one home they drove to Avoyelles Parish to go to the night clubs where the teenage daughter might be located. They didn’t find her at the first two and were on their way to the third night club when the accident occurred in Avoyelles Parish about 1 a. m. on November 28, 1971.

When the Camaro reached a slight left turn in the road, it was driven into the ditch to the right of the Camaro’s forward motion. The front end struck a culvert and flipped the Camaro so that the back end then struck a second culvert some distance away (at which point Mrs. Phillips’ purse was found) and the Camaro then crossed the road and ended up in the ditch on the other side. Both Mrs, Phillips and Hobbs were thrown out of the front seats; Mrs. Phillips’ body came to rest on the trunk lid with her feet hanging in the back seat; Hobbs ended up in a sitting position between the seats with his feet facing the passenger side of the Camaro. As a result of her injuries Mrs. Phillips died within a few minutes after the accident, and Hobbs was severely and permanently injured.

Defendants H. W. Phillips, Fireman’s Fund, Reserve, and the Succession of Lois Phillips have alleged numerous errors— some are duplicated by the defendants and some are limited to their own situation. We will consider the errors specified by the various defendants in the following order:

1) The exception to venue existing in Rapides Parish should have been sustained.

2) Mrs. Phillips was not a “resident of the household” of Mr. Phillips for insurance purposes, and therefore there was no coverage by Fireman’s Fund and Reserve.

3) Louisiana law should not be applied.

4) Mrs. Phillips was not on a community mission.

5) Mrs. Phillips was not driving.

6) Southern Farm Bureau should be cast for all costs of court and attorney fees.

7) Fireman’s Fund and Reserve should not have been cast on the third-party demand because that demand was only for attorney’s fees.

8) Fireman’s Fund and Reserve should not have been cast for attorney’s fees for that part of Phillips’ defense relating to the coverage issue.

9) Prescription had run when the Succession of Lois Phillips was properly made a party defendant.

10) Fireman’s Fund’s liability was improperly limited to its policy limits of $100,-000; instead it should be held for court costs and for Phillips’ attorney’s fees in addition to its $100,000 of coverage.

11) The amount awarded Hobbs is excessive.

12) Hobbs is not entitled to judgment against Reserve on the main demand because Hobbs did not sue Reserve.

1

The trial court held that Mrs. Phillips was domiciled in Rapides Parish. Although a married woman’s domicile is that of her husband (LSA-C.C. art. 39), she may establish a separate domicile if she is abandoned or. leaves the matrimonial domicile as a result of serious misconduct on the part of her husband. This misconduct must be similar in nature to that necessary to support a suit for separation. Johnson v. Welsh, 334 So.2d 395 (La.1976); Morrison v. Morrison, 316 So.2d 453 (La.App. 3 Cir. 1975).

The trial court held that Mrs. Phillips left her Mississippi home following an altercation with her husband. He brandished a gun and threatened his entire family. After this altercation, Mrs. Phillips never returned to live in Mississippi. Without restating the conflicting evidence, there is sufficient evidence to support the conclusion that Mrs. Phillips had indeed established her home for herself and her two children in Rapides Parish.

It is further contended that Mrs. Phillips, being deceased, has no domicile; that according to the provisions of the direct action statute (LSA-R.S. 22:655) and the applicable venue statute (LSA-C.C.P. art. 42), the only forums where the insurers can be sued are the situs of the accident, Avoyelles Parish, or East Baton Rouge Parish. LSA-C.C.P. art. 42(7). We rejected that contention in Davis v. Hanover Insurance Company, 289 So.2d 292 (La.App. 3 Cir. 1974); we held the 1962 amendment (Act 471 of 1962) to the direct action statute (LSA-R.S. 22:655) was intended to incorporate all venue provisions of LSA-C.C.P. art. 42 without the limitations provided by the following articles of the Code of Civil Procedure; venue of a direct action against the insurer exists in the parish of the insured’s domicile, even though the insured is not a party defendant.

If a decedent has no domicile, the result would be that every time a personal action is asserted against a deceased party, venue under the direct action statute (LSA-R.S. 22:655) provided by LSA-C.C.P. art. 42(1) would be lost; insofar as that provision is concerned, death of the tort-feasor would prevent the injured party from suing the insurer in the parish of the tort-feasor’s domicile.

The purpose of the direct action statute (LSA-R.S. 22:655) was to allow a plaintiff to bring his action against all parties concerned and to settle rights and obligations in one action, venue for which existed in a number of different parishes. Davis v. Hanover Insurance Company, supra. We reject the contention that, as to the insurer, venue at the tort-feasor’s domicile is lost when the tort-feasor dies.

2

Both insurers contend that if Mrs. Phillips was domiciled in Rapides Parish (which is denied on the venue argument), then she was not a resident of the household of Mr. Phillips — a requirement to find coverage under Fireman’s Fund’s and Reserve’s policies. They contend that Hobbs is not entitled to have this factual issue decided both ways — in the same lawsuit. We reject this attractive argument.

Although a person may have only one domicile, that person may have several residences. Manuel v. American Employers Insurance Co., 228 So.2d 321 (La.App. 3 Cir. 1969); LaFleur v. Seaboard Fire & Marine Insurance Co., 296 So.2d 860 (La.App. 3 Cir. 1974). To maintain a residence a person needs only a place or premises which entitles him to return at his convenience without having to request permission of someone else. Hall v. Godchaux, 149 La. 733, 90 So. 145 (1921); Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App. 3 Cir. 1976).

There is no manifest error in the trial court’s conclusion that Mrs. Phillips maintained a residence at her previous Mississippi domicile. The Mississippi farm and home was jointly owned by Mrs. Phillips and her husband; she was free to come and go to that home at her pleasure; a great many of her valuable personal belongings remained at the Mississippi household; and she intended to return to that area to ,do her Christmas shopping.

Appellants cite three cases to support their contention that an estranged wife is not a resident of the household for insurance purposes: Tyler v. Aetna Casualty & Surety Company, 291 So.2d 519 (La.App. 2 Cir. 1974); Roux v. Jersey Insurance Company, 98 So.2d 906 (La.App.Orls.1957); Causey v. Valentine, 271 So.2d 365 (La.App. 2 Cir. 1972). The first two cases are concerned with property loss insurance policies. In both, the wife was separated either judicially, or in fact, when the loss occurred. A holding that the wife was a resident of the household (ergo, a named insured under the policy) would have extended policy coverage to her property at the new residence as well as property at the old residence. These policies were issued and the premiums established with a specific geographic area in mind. The last case involved an automobile policy and it was determined that the insurer was not liable because neither husband nor wife were driving at the time of the accident; therefore, there was no community mission involved. The statement that insurance would not attach because the wife was separated from her husband and therefore not a resident of the household was not essential to that decision.

We find Hartford Insurance Group v. Winkler, 89 Nev. 131, 508 P.2d 8 (1973) to be in point. The facts there parallel those here — even down to the terminology used on the “resident of the household” clause. In both, the spouse is a named insured if a resident of the household. In Winkler, the court pointed out that the term “resident of the household” had no specific meaning as to place or time when a party would qualify for insurance coverage. Therefore, the phrase was “uncertain and equivocal in phraseology” and should be interpreted in favor of coverage and against the company which drafted the policy. Louisiana also reads policy provisions against the insurance company and follows the rule that exclusionary clauses are to be strictly construed in favor of coverage. Michel v. Washington National Insurance Co., 315 So.2d 863 (La.App. 3 Cir. 1975); Rushing v. Protective National Insurance Company of Omaha, 315 So.2d 876 (La.App. 3 Cir. 1975).

More importantly, we construe ambiguous phrases along the lines intended by the parties to the instrument. LSA-C.C. 1950; Cooling v. United States Fidelity & Guaranty Co., 269 So.2d 294 (La.App. 3 Cir. 1972). Relevant here are the facts that Mrs. Phillips was, admittedly, a resident of the household when the policies were purchased; her Chevrolet station wagon was specifically listed as covered under the policies; Reserve treated Mrs. Phillips as the named insured in their policy when they accepted her signature (and only hers) as named insured to waive all coverage in the event the Phillips’ retarded son was engaged in activity inducing liability under the policy. Therefore the coverage purchased was specifically intended by the parties to the instrument to apply to Mrs. Phillips’ activities.

There is no manifest error in the trial court’s factual determination that it was the intention of the parties that Mrs. Phillips was to be provided coverage under the facts of this case. As the trial court so aptly noted in his reasons for judgment, coverage should not be based upon the serenity, or lack thereof, in a marriage. We agree.

3 and 4

Appellants contend that Louisiana law should not be applied to this case; they suggest that a “false” conflict of law question is presented — similar to that found in the Jagers, Romero, and Sullivan cases. Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973); Romero v. State Farm Mutual Automobile Insurance Co., 277 So.2d 649 (La.1973); Sullivan v. Hardware Mutual Casualty Co., 278 So.2d 30 (La.1973).

We note that the “lex loci” principle for application of the law of the forum [Johnson v. St. Paul Mercury Insurance Co., 256 La. 289, 236 So.2d 216 (1970)] was expressly overruled in Jagers. However, the situs of the tort does bear weight in deciding the issue of which state’s law should apply. And here, the conduct complained of was perpetrated by a Louisiana domiciliary to the detriment of a party at least temporarily residing in Louisiana. These facts distinguish the instant case from the holdings in Jagers, Romero, and Sullivan.

Appellants further contend that Louisiana law should not apply as to the “family” issues involved in this case. The record establishes that a majority of the Phillips family lived in Rapides Parish, Louisiana; Mr. Phillips was generously supporting his family in Rapides Parish. The majority of this family’s “family” business had been extended to and was taking place in Louisiana. The retarded son was placed in a Rapides Parish home for retarded persons — one which Mr. Phillips agreed was superior to any they had’been able to find. Mrs. Phillips and her daughter were conducting their day to day affairs from a residence in Rapides Parish; the daughter was attending night school in Alexandria. Louisiana has substantial interest in the application of its laws when the conduct of family business within its borders results in injury in Louisiana.

Alternatively, appellants contend the “community mission” doctrine is inapplicable because there existed no Louisiana community of acquets and gains between Mr. and Mrs. Phillips. This contention is without merit. The “community mission” theory is based in agency; not community property law. LSA-C.C. arts. 2315, 2317; Employers Liability Assurance Corp. v. Carter, 227 So.2d 616 (La.App. 3 Cir. 1969); Martin v. Brown, 240 La. 674, 124 So.2d 904 (1960).

For the husband’s vicarious liability to attach it is necessary that his authorization be either express or implied. Phillips demonstrated his consent for his wife to look after his family by providing $1200, plus an unlimited charge account, as monthly support for his wife and children. At no time did he object to Mrs. Phillips caring for and having custody of his children; as a fact, he approved it. He testified that he expected his wife to look after their daughter and approved all his wife’s moves in that direction. These actions constitute an implied authorization for her to do those things reasonably necessary to care for their daughter.

Louisiana parents owe the duty to care for children of the marriage as their standard of life dictates. LSA-C.C. arts. 216, 224(2), 227. There is ample support for the trial court’s finding that Mrs. Phillips was engaged in the discharge of this duty mutually shared by her husband at the time the accident occurred. We agree that this is the authorization necessary for liability to attach. Becnel v. Ward, 286 So.2d 731 (La.App. 4 Cir. 1973). Appellants failed to establish manifest error in the holding that Mr. Phillips is liable on the grounds that his wife was acting as his agent at the time of the accident.

5

All appellants contend Hobbs was driving at the time of the accident. The trial court’s finding that Mrs. Phillips was driving is supported by the record. The only eye witness to the incident, Hobbs, maintained this to be a fact at the accident scene and thereafter. Great weight attaches to his testimony. State, Dept. of Highways v. Moity, 276 So.2d 770 (La.App. 3 Cir. 1973). To contradict this, appellants presented expert testimony of Dr. Tonn. He had not visited the scene of the accident and based his opinion on only a few of the many pictures presented in evidence. The trial court attached no importance to his testimony and neither do we. The thrust of his testimony was that the driver of the car would be restrained by the steering wheel and console between the driver and passenger; since Mrs. Phillips was further removed from the driver’s seat than Hobbs, she would necessarily have to have been occupying the passenger seat. Both occupants came to rest in the back portion of the Camaro; therefore, the steering wheel and console restrained neither party from eventually coming to rest in the back part of the car.

6

It is contended that Southern Farm Bureau Casualty Insurance Company, which carried $10,000 public liability limits on the Hobbs’ Camaro, should pay some of the court costs and the attorney’s fees incurred by H. W. Phillips. We reject that contention. Farm Bureau’s policy was issued to Hobbs’ father. It is difficult to understand how H. W. Phillips could possibly be held to be an “insured” or a “permit-tee” under that policy. Perhaps the Succession of Lois Phillips could assert a claim on the basis that she was a “permittee” under the policy, but the policy does not bind Farm Bureau to provide legal fees, in addition to its $10,000 limits, for the defense of the husband of a “permittee.” Farm Bureau is not liable for court costs because they paid their maximum exposure into the registry of court before trial.

7

Fireman’s Fund and Reserve contend that H. W. Phillips’ claim was limited by his pleadings to a claim for attorney’s fees and a defense on the merits; therefore, he should not have judgment against them for other policy coverages. We reject this argument. Phillips’ third-party suit against the insurance companies states both are liable to him for damages he might sustain in connection with the claims asserted against him by Hobbs. The pleaded facts put third-party defendants on notice as to this claim. Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La.1974); LSA-C.C.P. art. 865. Neither Reserve nor Fireman’s can claim surprise or lack of notice of this issue.

The fact that this specific relief was not prayed for by third-party plaintiff is not critical to Phillips’ claim. Under LSA-C.C.P. art. 862 the trial judge may grant relief to a party as the evidence indicates and is not restricted to the relief prayed for. Desormeaux v. Inexco Oil Co., 298 So.2d 897 at 901 (La.App. 3 Cir. 1974); Johnson v. Fuselier, 302 So.2d 721 at 723 (La.App. 3 Cir. 1974).

8

We recognize the rule that an insurer is not bound to provide counsel for its insured in a contest involving a coverage question. Clemmons v. Zurich General Accident & Liability Insurance Company, 230 So.2d 887 (La.App. 1 Cir. 1969); Landreneau v. United States Fidelity & Guaranty Co., 287 So.2d 554 (La.App. 3 Cir. 1973). Nevertheless, insurers are bound to defend their insured on the merits. Here the insurers provided no defense for their insured; Mr. Phillips’ defense was provided at his own expense.

The issues involving coverage and the liability aspects of this case were so interrelated as to make it impossible to compute an accurate accounting as to what time was spent handling each issue. The trial court made no distinction in computing the time Mr. Phillips’ attorney spent on each issue; we see no practical way to make such a distinction. The award of $6,839.50 attorney’s fees, computed at the rate of $50 per hour, is reasonable and within the trial court’s discretion.

9

We find no merit to the plea of prescription urged by the Succession of Lois Phillips. Prescription is interrupted as to all obligors when the debt involved is owed in solido and service is timely made upon another solidary obligor. LSA-C.C. art. 2097. Fireman’s Fund was properly named as a party defendant in Hobbs’ original petition. Proper service of process against Fireman’s Fund served to interrupt prescription as to the Succession.

10

We find merit to Reserve’s contention that it should not be cast to pay court costs and Phillips’ attorney’s fees. The language of Fireman’s Fund’s and Reserve’s policies is clear. Reserve is bound to defend and pay costs for occurrences which are not covered by Fireman’s Fund’s underlying insurance. Since Fireman’s Fund is bound to defend, it is their duty to bear the entire costs of the defense when the occurrence is within the terms of their policy. Therefore, Reserve may not be cast in judgment for court costs or for Phillips’ attorney’s fees. American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969).

11

Appellants have failed to establish an abuse of the trial court’s discretion in assessing the amount to be awarded Hobbs. Prior to the accident Hobbs was a healthy young man; at trial several years later, he was 22 years old. Because of the accident he has at least a 30 percent disability of the body as a whole; this is related to his temporary paralysis from the waist down and the laminectomy of November 29, 1971 and spinal fusion of January 10, 1972. In addition to this he has permanent dysfunction of both his bladder and bowels. We will not detail the long list of Hobbs’ complaints and the extensive treatments provided.

Appellants do not contend the special damages amounting to $9,423.34 were excessive. Most of these were for medical treatments. The $225,000 awarded by the trial court in general damages is well within the trial court’s discretion.

The trier of fact is granted much discretion in the award of general damages; this is particularly so in cases where there is a loss of gratification of intellectual or physical enjoyment, or other losses of lifestyle which cannot really be measured definitively in terms of money. LSA-C.C. art. 1934(3); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Simmons v. Travelers Insurance Company, 295 So.2d 550 (La.App. 3 Cir. 1974).

12

Hobbs did not name Reserve as a party defendant. Reserve was made defendant only by Phillips’ third-party action. Therefore, the judgment in favor of Hobbs and against Reserve must be set aside and reversed. Reserve is liable only to H. W. Phillips, the party that sued Reserve. Judgment against one not a party to an action cannot be given effect. Freeman v. McKay 306 So.2d 420 (La.App. 3 Cir. 1975).

Accordingly, the trial court judgment is set aside and reversed insofar as it taxes court costs and attorney fees to Reserve Insurance Company; it is set aside and reversed insofar as it awards judgment to plaintiff Hobbs against Reserve Insurance Company; it is set aside and reversed insofar as it appears to relieve Fireman’s Fund for liability for attorney fees; otherwise the judgment is affirmed. Specifically, we affirm the amount of the award to Hobbs in general and special damages, and the amount of attorney’s fees awarded to H. W. Phillips together with legal interest thereon from date of judicial demand; we affirm the judgment in favor of Hobbs and against H. W. Phillips and the Succession of Lois Phillips and their insurer Fireman’s Fund; we affirm the judgment in favor of H. W. Phillips holding Fireman’s Fund and Reserve liable to him up to the amounts Phillips is cast to pay Hobbs, but limited to their respective policy limits. All costs of court and costs of defending H. W. Phillips are taxed to Fireman’s Fund; this to be paid by Fireman’s Fund in addition to its $100,000 policy limits, which limits apply only to their exposure for general and special damages due to Hobbs. Legal interest on the amounts each party is cast to pay is owed by the respective parties and is due from date of judicial demand, until paid. Costs of this appeal are taxed to Fireman’s Fund.

AMENDED; and, as amended, AFFIRMED.


author: HOOD, Judge.

text:
    Thomas J. MILLER, Plaintiff-Appellant-Appellee, v. Dutriel Michael KEATING et al., Defendants-Appellants-Appellees.
    No. 5625.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 21, 1976.
    Rehearing Denied Nov. 30, 1976.
    Writ Granted Feb. 3, 1977.

      John A. Jeansonne, Jr., Lafayette, for Kustom Homes, Inc. and Hartford Acc. & Indem. Co.
    Allen, Gooch & Bourgeois, Ltd. by Raymond M. Allen, Lafayette, for plaintiff-ap-pellee.
    Olivier & Brinkhaus by John L. Olivier, Sunset, Guilbeau & Sullivan by Thomas E. Guilbeau, Lafayette, for defendant-appel-lee.
    Debaillon & Miller by Roderick L. Miller, Lafayette, for plaintiff-appellant-appellee.
    Kleinpeter & Nevils by Robert L. Klein-peter, Baton Rouge, for defendant-appellant-appellee.
    Before HOOD, MILLER and WATSON, JJ.
   HOOD, Judge.

Plaintiff, Thomas J. Miller, claims damages for personal injuries sustained by him as the result of a battery committed on his person. The defendants are Dutriel Michael Keating, Johnny Lee Howren, James Guillet, Kustom Homes, Inc., and Hartford Accident and Indemnity Company. The case was tried by jury, with the result that a verdict was rendered in favor of plaintiff and against defendants Keating, Howren, Guillet and Kustom Homes, for the sum of $25,500.00. Hartford was found to be not liable. Judgment was rendered and signed by the trial judge in accordance with that verdict.

Appeals were perfected by plaintiff Miller, and by defendants Guillet and Kustom Homes.

The principal questions presented are: (1) Did defendant Guillet assist in the commission of the battery? (2) Was the battery committed by employees of Kustom Homes while in the course of their employment? (3) Does the liability policy issued by Hartford provide coverage for the tortious acts committed by any other defendant? (4) Is the amount of the award excessive or inadequate? (5) Is the judgment consistent with the jury verdict?

Plaintiff Miller was seriously injured as the result of a battery committed on him near his home in Lafayette Parish, at about 10:00 P.M., on April 23,1973. He instituted this suit on April 23,1974, alleging'that the battery was committed by defendants Keat-ing, Howren and Guillet pursuant to a conspiracy entered into by them, and that defendants inflicted the injury on him during the course of their employment by Kustom Homes, Inc.

The trial was completed and the jury verdict was rendered on December 15, 1975. The judgment appealed from was signed on January 29,1976. The jury obviously found that defendants Keating, Howren and Guil-let committed the battery, or that they at least assisted or encouraged in the commission of it, since all three of those defendants were held to be liable in solido for the damages sustained by plaintiff.

Neither Keating nor Howren appealed and neither of them answered the appeal taken by plaintiff. The judgment thus is final as to those defendants.

The evidence establishes that in 1969 or 1970, plaintiff Miller and defendant Keat-ing agreed to go into the construction business together. They formed Kustom Homes, Inc., for that purpose, with Miller and Keating owning a majority of the stock in that corporation. Keating served as president and manager of the company, and Miller served as vice-president and general superintendent in charge of construction. The corporation began constructing and selling residential buildings shortly after it was formed, and it was still engaged in that business when plaintiff was injured.

Several months prior to the time plaintiff was injured, Keating employed defendants Howren and Guillet to work as carpenter’s helpers for Kustom Homes, and those defendants were employees of that corporation on the day the above described battery was committed.

In January, 1973, Miller severed his connection with Kustom Homes and he accepted a position with another construction firm. Keating became displeased or angry with Miller because of his act in leaving Kustom Homes, particularly in view of the fact that the corporation was heavily in debt at that time. Shortly after Miller quit working for Kustom Homes, Keating informed defendants Howren and Guillet that he wanted to kill or to “have something done to” plaintiff Miller, and he solicited their assistance in accomplishing that purpose. Although Howren and Guillet deny that they agreed to assist Keating, the evidence shows that they did assist him in an attempt to at least seriously injure plaintiff. Keating promised both of the other defendants some land if they helped him carry out his plan.

After Keating solicited the help of How-ren and Guillet, the latter made several trips together in an attempt to locate Miller for Keating. About one week before the above battery was committed, Howren and Guillet located plaintiff and they conspired to commit a battery on him at that time. They went to Miller’s home for that purpose, but their attempt was thwarted by the fact that Miller arrived at his home sooner than defendants expected him to get there and someone else was with him when he arrived.

About noon on April 23, 1973, Keating met with Howren and Guillet, and at that time they conspired to ambush and to assault plaintiff when he arrived at his home late that evening. Pursuant to that plan, Howren and Guillet went to Miller’s home about 10:00 P.M. on that date in a pick-up truck being driven by Guillet, and shortly thereafter Keating met them there. Guil-let parked his truck across the street from Miller’s home and remained in it while Keating and Howren went to a point near the entrance to plaintiff’s home and concealed themselves behind some bushes there. Keating was armed with a piece of iron pipe. Shortly thereafter Miller arrived and started to walk from his parked automobile toward his home. When he reached the bushes concealing the two defendants, Keating and Howren assaulted and struck Miller repeatedly over the head with the iron pipe, causing serious injuries. The evidence is not clear as to whether Keating or Howren actually struck the blows. Both participated in the assault, however, and Guillet was in his truck across the street when the battery was committed. Miller was left unconscious on the ground.

Immediately after the battery was committed, Howren emerged from the bushes and Guillet promptly drove the truck forward to pick him up and return to Lafayette, all in accordance with their agreed plan. At Howren’s request, Guillet then stopped the truck and went into the bushes with Howren to help him put Miller’s body in the truck and take it to some other place. Guillet saw plaintiff lying on the ground and discovered that he was still alive. He then got scared, suggested that they “get out of here,” and he and Howren then left the scene in Guillet’s truck. Keating left in another vehicle, and shortly thereafter the three defendants met at Keating’s home where they were informed by Keating to report to work the next day just as though nothing had happened. Howren and Guillet threw the iron pipe in the Vermilion River, and they burned some other incriminating evidence.

Liability of James Guillet

Defendant Guillet argues that the jury and the trial judge erred in their obvious conclusion that he participated in the battery. He contends that he is not liable in damages because he did not commit the battery and he did not intend to harm plaintiff. He takes the position that he was “merely a victim of a series of unfortunate circumstances.”

LSA-C.C. art. 2324 provides that “He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

The words “assists” and “encourages,” as used in Article 2324 of the Civil Code, contemplate acts performed pursuant to a conspiracy which cause injury or damage. Buras v. Machella, 172 La. 580, 134 So. 751 (1931); Tabb v. Norred, 277 So.2d 223 (La.App. 3 Cir. 1973); Rush v. Town of Farmerville, 156 La. 857, 101 So. 243 (1924).

If a conspiracy is conceived and executed and a private injury results, the person injured has a cause of action against all of the conspirators. The action is for damages caused by acts committed pursuant to a formed conspiracy, and all of the conspirators will be regarded as having assisted or encouraged in the performance of those acts. Tabb v. Norred, supra, and cases cited therein.

In the instant suit Guillet admitted that “to an extent” he participated in this battery and that he knew what was going on while Miller was being ambushed and injured. He did not admit having entered into a conspiracy with the other defendants, but he stated that he learned soon after Miller left Kustom Homes that Keating and Howren intended to kill Miller, and he went along with them and assisted in carrying out that plan from the time he first learned of it until the battery was committed. Guillet explained that initially he assisted in the plan to kill plaintiff because he “didn’t believe they were going to do it,” and that he “didn’t want to believe what was going on.” He stated, however, that “when I finally realized what was happening, I was too scared to try and get out of it.” When asked whether he knew what was going to happen when he, Keating and Howren met at Miller’s home immediately before the assault occurred, he stated, “I was afraid that they were going to kill him.” He nevertheless did not protest, and he continued to participate in the act.

We find that Guillet at least tacitly entered into a conspiracy with Keating and Howren to injure plaintiff, that thereafter he assisted them in committing a battery on Miller pursuant to that conspiracy, and that the latter sustained severe injuries as a result of that battery.

We conclude, therefore, that defendant Guillet assisted or encouraged in the commission of the battery on plaintiff Miller, and that he is answerable, in solido, with the other defendants for the damage caused by that act. There is no error in that part of the verdict which finds Guillet to be liable, therefore, and the judgment appealed from will be affirmed insofar as it decrees Guillet to be liable in solido with the other defendants.

Liability of Kustom Homes, Inc.

Defendant Kustom Homes contends that the tort feasors, Keating, Howren or Guil-let, were not acting within the scope of their employment in committing the battery, and that the jury and trial judge thus erred in finding that Kustom Homes, the employer, is liable.

An employer is liable for the damage occasioned by the tortious conduct of his employees, if the latter at the time are acting within the scope of their employment, or “in the exercise of the functions in which they are employed.” LSA-C.C. art. 2320; LeBrane v. Lewis, 292 So.2d 216 (La.1974); Babineaux v. Lavergne, 321 So.2d 401 (La.App. 3 Cir. 1975).

Whether an employee was acting within the course and scope of his employment must be decided on the facts of each case. The general test to be applied is whether the employee was performing some function for his employer and for which he was employed. Babineaux v. Lavergne, supra.

In LeBrane v. Lewis, supra, our Supreme Court held the employer to be liable where a supervisory employee stabbed a former co-employee in a dispute concerning the latter’s discharge by the supervisor. The court considered the following factors in determining that the tort feasor was acting within the scope of his employment: (1) Whether the tortious act was primarily employment-rooted; (2) whether the violence was reasonably incidental to the performance of the employee’s duties; (3) whether the act occurred on the employer’s premises; and (4) whether it occurred during the hours of employment.

We have applied the above tests to the facts in the instant suit, and have concluded that the tortious acts committed by Keating, Howren and Guillet were not committed during the course and scope of their employment, or in the exercise of the functions in which they were employed.

At the trial Keating denied that he entered into a conspiracy to injure Miller, and he denied that he was present at the scene when the battery was committed. He conceded that he was “hurt” when Miller severed his connection with Kustom Homes, that shortly after that occurred Howren asked him if he would like for Howren to “take care of Tommy Miller,” and that Keating replied, “Yeah, as long as you make it look like an accident.” He stated, however, that this last remark was made in a joking manner, and that nothing more was said on that subject to either Howren or Guillet.

Howren testified that he participated in the conspiracy and in the battery because Keating was the boss and he told Howren to do so, that he owed Keating $2,500.00 and was unable to pay it, that Keating promised to give him some land and some money if he helped in the assault, and that he was afraid of Keating. He also testified that Keating told him and Guillet that Keating had taken out a life insurance policy on Miller, and that he wanted Miller killed so he could collect the proceeds of that policy.

Keating and Howren differed as to how the latter became indebted to Keating for $2,500.00. Under either version of the facts, however, we find that the obligation was personal between those two parties and that it had no connection with their employment by Kustom Homes.

The evidence shows that at the time Miller severed his relations with Kustom Homes, there was in existence a life insurance policy insuring his life for $25,000.00, with Kustom Homes being one of the beneficiaries. After Miller left the corporation, Kustom Homes obtained another insurance policy insuring his life for $75,000.00, with Kustom Homes also being named as one of the beneficiaries. Both of these policies were in effect at the time the battery was committed. The articles of incorporation of Kustom Homes, Inc., provide that in the event of the death of a shareholder the surviving heirs must offer to the corporation all of the shares of stock owned by the decedent, at a specified price. Plaintiff argues that defendants were exercising “functions in which they were employed” in attempting to take the life of Miller, since Kustom Homes was a beneficiary under the above policies. Kustom Homes argues, on the other hand, that the assault was committed for the personal advantage of Keat-ing, since he was a major stockholder in the corporation and would benefit personally and indirectly by any payment of insurance benefits to that company.

We find no merit to the argument that the defendants were exercising functions in which they were employed by attempting to take the life of Miller. The evidence does not show that the collection of the proceeds of those policies constituted a motive for the assault. Assuming that that was a motive, however, we believe that the act was committed solely for the personal benefit of one or more of the defendants, it was not done for the benefit of the corporation, it did not constitute one of the functions in which they were employed, and defendants were not acting within the scope of their employment.

There is nothing in Guillet’s testimony which tends to show a connection between his employment, or that of any other defendant, and the violence which was done to Miller.

The record does not show, therefore, that the tortious act committed by Keating, Howren and Guillet was employment-rooted.

Guillet was employed to work as a carpenter’s helper for Kustom Homes, and the latter was engaged in the construction business. The battery committed on Miller was not reasonably incidental to the performance of the duties of any of the employees who participated in that act.

The battery occurred at least six miles from any premises owned or occupied by the employer, Kustom Homes, and about that distance from any work which was being performed by that corporation. The three employees who participated in the battery completed their day’s work for Kus-tom Homes about 4:00 P.M. on April 23, 1973. Howren and Guillet returned to the office of the company at about 6:00 P.M., and assisted in moving some furniture for about two hours. They completed that work and left the office at 8:00 o’clock, however, and the battery involved here occurred two hours later, at about 10:00 P.M. on that date. It thus did not occur on the employer’s premises or during the defendants’ hours of employment.

The evidence shows that none of those defendants who participated in the battery was acting in the scope of his employment by Kustom Homes when the act was committed. There is no respondeat superior liability on the part of Kustom Homes, therefore, and we find that the trial court erred in rendering judgment against that defendant. The judgment appealed from must be reversed insofar as it condemns Kustom Homes to pay damages to plaintiff.

Liability of Hartford Accident & Indemnity Co.

The policy issued by Hartford to Kustom Homes provides, under the “Comprehensive General Liability Insurance Coverage Part,” that the company will pay on behalf of the insured “all sums which the insured shall become legally obligated to pay as damages” because of bodily injury caused by an occurrence. We have determined that the insured, Kustom Homes, is not legally obligated to pay any damages to plaintiff. The insurer thus is not liable to plaintiff under the general liability insurance provisions of that policy.

Plaintiff contends, however, that the pick-up truck used by Guillet and Howren on the night the battery was committed was insured under the automobile liability provisions of the above policy. The policy provides, under the “Comprehensive Automobile Liability Insurance Coverage Part,” that the company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury caused by an occurrence and “arising out of the ownership, maintenance or use, including loading and unloading, of any automobile. ..

Plaintiff’s argument is that the injuries which he sustained on the night of April 23, 1973, arose out of the “use” of the vehicle which Guillet was driving at that time, since the truck was used to transport some of the conspirators to and from the scene of the battery, and the two-way radio in that vehicle allowed direct communication between all of the co-conspirators. He takes the position that Guillet, the driver of the truck, was an “insured” under the policy, and that the insurer, Hartford, thus is liable for the damages sustained by plaintiff.

In Speziale v. Kohnke, 194 So.2d 485 (La.App. 4 Cir. 1967), plaintiffs claimed damages for injuries which they sustained when some fireworks were thrown at them by the occupants of a moving automobile. The policy in that case, as does the policy in the instant suit, obliged the insurer to pay on behalf of the insured all sums which the latter shall become legally obligated to pay as damages for injuries “arising out of the ownership, maintenance or use” of the insured automobile. The court held that the occurrence did not arise out of the “use” of that automobile, as reasonably contemplated by the language used in the policy, and that the insurer was thus not liable. The court said:

“. . . it is obvious that this case does not involve an ‘arising out of the use of an automobile’ as reasonably contemplated by that clause. That the circumstances here are not within the clause is accentuated by the fact that the act of throwing a firecracker was a voluntary, deliberate act on the part of the automobile passenger. This factor, along with the entire set of circumstances, removes the eonnexity of the incident with the use of an automobile to the realm of insignificance.”

In our opinion, the rule applied in Spez-iale is applicable here. The battery committed in the present suit was a voluntary, deliberate act on the part of the driver and occupant of the insured truck. The connection between the use of the truck and that voluntary act of violence is so remote and insignificant that it cannot reasonably be said that plaintiff’s injury arose out of the use of that vehicle.

We conclude that the injuries sustained by plaintiff in the instant suit did not arise out of the “use” of the insured truck which was driven by Guillet on the night of April 23, 1973. The policy issued by Hartford, therefore, provides no coverage for plaintiff’s claim. The judgment appealed from will be affirmed insofar as it rejects plaintiff’s demands against Hartford.

Quantum

Plaintiff suffered severe head injuries as the result of the battery. He received approximately five blows to the top and sides of his head with a hard, blunt instrument. The blows caused him to suffer several large cuts, consisting of a “large cut through the left ear which extended almost into the canal to the opening,” two “large cuts on the scalp behind the left ear,” one large cut on the “back of the head,” and a “smaller cut but of substantial size on the right side of the head.” Many stitches were required to repair these lacerations. X-rays revealed that plaintiff sustained two fractures, one on his skull behind the left ear over the mastoid, and the other being a fracture of the mandible. He sustained a brain concussion, resulting in temporary amnesia, headaches and dizziness. As a result of the fracture to the mandible, his ability to open his mouth has been reduced to at least a quarter to a third of normal, it affects his ability to speak and to chew, and it causes a popping noise and pain when he moves his jaws. The doctors were unable to determine whether the condition of the mandible will be permanent. He has suffered a ten percent permanent loss of hearing in the left ear. The scars from the cuts are permanent and are disfiguring, although some of them should be covered or concealed by his hair.

Miller was hospitalized for approximately thirteen days, including several days in the intensive care unit of the Lafayette General Hospital, during which time he required blood transfusions and for a while he was listed as being in critical condition.

The jury awarded plaintiff damages in the amount of $25,500.00, which included special as well as general damages. The evidence indicates that he sustained medical expenses amounting to approximately $2,000.00. He suffered no loss of wages, since his employer continued to pay him his full salary during his period of disability. The award of general damages thus was in the amount of about $23,500.00.

We have decided that the award of general damages made to plaintiff is within the range of the much discretion which is vested in the trial court, and that it should not be disturbed.

Provisions of Judgment

The decree signed by the trial judge recites that plaintiff is entitled to recover damages from defendants “as a result of the intentional battery committed upon the plaintiff by or at the instance of the aforesaid defendant.”

The defendants who appealed contend that the judgment should be amended to eliminate the word “intentional” from it. They argue that the issue of whether the act was intentional was not submitted to the jury, that the jury made no finding as to that issue and that the trial judge erred in including the term “intentional” in his formal judgment.

We find no error in the trial judge’s action in including “intentional” in the decree. The evidence shows, and we have found, that defendants entered into a conspiracy to commit a battery on plaintiff, that a battery actually was committed pursuant to that conspiracy, and that plaintiff sustained injuries as the result of that battery. The committing of such an injury must be intentional. It is inconceivable that a battery committed pursuant to a conspiracy and under the circumstances shown by the evidence to exist in this case, could be unintentional.

Our conclusion is that the trial judge did not err in including the words “as a result of the intentional battery committed upon the plaintiff” in the decree.

For the reasons herein set out, the judgment appealed from is amended to eliminate Kustom Homes, Inc., as one of the defendants cast in judgment, and to decree instead that all claims asserted against Kus-tom Homes, Inc., by plaintiff are hereby dismissed. In all other respects the judgment appealed from is affirmed.

One-half the costs of this appeal are assessed to plaintiff-appellant, and the remaining one-half of those costs are assessed to James Guillet, defendant-appellant.

AMENDED and AFFIRMED.