author: LEE, THOMAS E., Associate Judge. McCORD, Judge

text:
    Emmett REEDER, Individually and as Administrator of the Estate of T. A. Reeder, Deceased, Appellant, v. EDWARD M. CHADBOURNE, INC., and Mike Hunter, Inc., Appellees.
    No. Z-43.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1976.
    Rehearing Denied Oct. 26, 1976.

      Ferrin C. Campbell, Sr., Crestview, for appellant.
    Lynn C. Higby of Isler, Higby & Brown, Panama City, Robert D. Bell of Fisher, Hertz & Bell, Pensacola, for appellees.
   LEE, THOMAS E., Associate Judge.

This appeal is from an adverse jury verdict for Defendants below against the Plaintiff, who had brought suit for the wrongful death of their minor son as a result of a single car accident. This case arises out of the repealed wrongful death act (F.S. 768.02).

The following constitutes pertinent material facts and circumstances surrounding the incident in question.

FACTUALLY, State Road 397 is a four-lane highway leading into Eglin Air Force Base. A person traveling north on 397 but not desiring to enter the air force base must turn right off 397, crossing over an overpass to the left before continuing north on State Road 85. At approximately 11:30 P.M., November 13, 1971, 20 year old T. A. Reeder, minor son of the appellant, turned off State Road 397 onto State Road 85. Reeder lost control of his automobile as he entered the curve before the overpass. His automobile made an arching sweep from the right side of the roadway across the lefthand lane onto the shoulder, turning sideways and sliding for 127 feet before it turned over four times, falling down an embankment and coming to rest in the median strip of the underlying State Road 397. Young Reeder was taken to Eglin Hospital where he died several hours later. Emmett Reeder, the father of the deceased filed wrongful death actions individually and as administrator of his son’s estate against the appellees, alleging that they were negligent in not providing warnings, i. e., sign, barricades, guardrails, signal lights, reflectors, or any other safety precautions necessary to prevent injuries or accidents caused by the condition of the roadway and bridge under construction. Appellee Chadboiirne was the prime contractor for the construction of the overpass on State Road 85. Appellee Hunter was a subcontractor responsible for erecting guardrails along the overpass. At the time of the accident the construction was complete except for the installation of guardrails, the completion of the sodding along the embankment, and road stripping.

Appellant presents four points on appeal. Appellant’s first point on appeal is that the court erred in denying the appellant’s motion for a directed verdict on the ground that the appellees, or either of them, were negligent as a matter of law. In order for a directed verdict to be given by the court, there must be an absence of conflicting evidence, see e. g., Hartnett v. Fowler, Fla., 94 So.2d 724 (1957). In granting a directed verdict a court will encroach upon the constitutional guarantee of jury trial only if there is no substantial evidence to justify a decision contrary to the directed verdict. Citizens and Peoples National Bank v. Louisville and N. R. Co., 80 Fla. 319, 85 So. 916 (1920); see also, Security Underwriting Consultants, Inc. v. Collins, Tuttle Investment Corporation, Fla.App., 173 So.2d 752 (1965). This point is especially true when the court is confronted with a negligence case, Brookbank v. Mathieu, Fla. App., 152 So.2d 526 (1963). Furthermore, all inferences of fact must be construed in favor of the nonmoving party, see e. g., Lustig v. Feinberg, Fla.App., 285 So.2d 631 (1973). Applying these cases to the facts of the case before us shows that there was substantial conflicting testimony as to whether the lights and signs required to be posted by the defendants below were present at the accident scene. Such a conflict of fact is solely within the province of the jury both in regard to violation of statutory regulations and the conclusions reasonable men may draw from the same evidence/ Construing the conflicting testimony and facts most strictly for appellees, there is no reversible error present which would uphold this point on appeal.

Appellant’s second point on appeal states that the court erred in granting each appellee six peremptory challenges and the appellant twelve. In determining the number of challenges a presumption of correctness must be indulged by the reviewing court, Crosby v. State, 90 Fla. 381, 106 So. 741 (1925). Each side may be restricted to three challenges only if a party upon the same side of the action appears not to have an interest hostile or antagonistic to his co-party, see Parish v. Spence, Fla.App., 149 So.2d 58, reh. den. (1963). In the case before us Chadbourne, Inc. and Hunter were clearly antagonistic in their interests and were therefore entitled to three challenges each of a total of six challenges for each side.

Furthermore, appellant Reeder had two distinct causes of action, one under the common law in tort and another under the old wrongful death statutes, F.S. 768.02 and F.S. 46.021 (1971). While both actions grew out of the same incident they were at the time of the accident separate causes of action and the equivalent of two separate suits in law and thus entitled each side to six challenges per suit. Thus, even though the cases were tried together it does not alter the fact that a total of twelve challenges per side were called for.

Finally, even if the number of challenges allowed was in error it was harmless error. Judgments will not be reversed by reviewing courts unless prejudicial error is clearly demonstrated by the appellant, Soloman v. Hunt, Fla.App., 243 So.2d 185 (1971). Only material errors which reasonably could have caused injustice are reversible errors. Appellant’s claimed bias in regard to the geographical location of the residences of members of the jury being primarily urban, while the appellant and his attorney were from a rural part of the county is unsupported by any objective evidence of bias. Consequently, the appellant has failed to demonstrate prejudice warranting reversal because of the number of challenges allowed in voir dire.

The third point on appeal is that the lower court erred in sustaining the defendant’s objection to the testimony of H. T. Smith, an intended rebuttal witness for the plaintiff. In reviewing a jury verdict an appellate court is required to weigh all inferences, facts and testimony in the light most favorable to the appellee, Krasny v. Richter, Fla.App., 211 So.2d 612 (1968). The trial court refused to allow the testimony of H. T. Smith because of the claim of surprise by the defense attorneys and the disclosure by Smith that he thought he knew one of the jurors.

In regard to the allegation of surprise, defendants below had propounded interrogatories to appellant asking for the names of witnesses more than two years in advance of trial. Reliance has been placed in both the argument and brief, upon the holding in Passino v. Sanborn, Fla.App., 190 So.2d 61 (1966), that there is a duty to supplement the answers to interrogatories. While Passino was based upon sound legal reasoning by my learned colleague, Chief Judge Tyrie Boyer, that case has been superseded by F.R.C.P. 1.280(e) which provides there is no duty to supplement answers to interrogatories. For this reason, appellant had no duty to reveal the name of his rebuttal witness in the absence of a pre-trial conference such as was not held here. However, even though a claim of surprise is not applicable it still must be shown that there was prejudicial error committed in not allowing H. T. Smith to testify for appellants. To be prejudicial, the error must violate a basic right, such as the introduction of material evidence, Urga v. State, Fla., 85 So.2d 629 (1956).

Smith’s proffered testimony was cumulative in nature and was no more important as rebuttal than the testimony of appellants prior witnesses, see Machin v. State, 213 So.2d 499 (1968). Even so, the right to call a rebuttal witness should not be denied without good cause. Thus some sort of balancing test must be applied. In this case the possibility of substantial prejudice to appellee if a juror did know H. T. Smith must be balanced against the denial of the right to present the proffered testimony of appellant’s rebuttal witness.

Several facts must be considered by the court. The testimony of Smith was solely cumulative and added nothing further to the position taken by previous witnesses presented by appellant. Smith was a long time friend of appellant Reeder and was not a completely disinterested witness. Finally, Smith also admitted to the possibility of knowing one of the members of the jury. Thus, there was no abuse of judicial discretion in the disallowance of Mr. Smith’s testimony as the Court had before it the witness and his testimony, Grant v. Corbitt, Fla., 95 So.2d 25, 28; also found in Judicial Discretion (The Honorable Thomas E. Lee, Jr. and the Honorable Ben F. Overton eds. 1972), National College of the State Judiciary at 38. For all of these reasons the denial of H. T. Smith’s testimony was not prejudicial error so as to constitute a reversal.

The appellant’s fourth and final point on appeal is that the lower court erred in denying the plaintiff’s requested charge No. 2. The argument presented by appellant fails in several respects. First, as stated to the jury, the court’s charge properly covered the issues adduced at trial. Secondly, even if it didn’t the failure to give a requested correct charge which states the law, Hill v. Sadler, Fla.App., 186 So.2d 52, reh. den. (1966) but whose substance is covered in other charges given, is not reversible error, Florida East Coast Railway Co. v. Lawler, Fla.App., 151 So.2d 852, reh. den. (1963). Furthermore, the charge given must be not only erroneous but “reasonably calculated to confuse or mislead” the jury, Clearwater v. McClury, Fla.App., 157 So.2d 545 (1963) and thus reasonably be harmful, Stiles v. Calvetto, Fla.App., 137 So.2d 17 (1962); Owca v. Zemzicki, Fla.App., 137 So.2d 876 (1962). The court’s charge, we conclude, did not do so in this case.

For the foregoing reasons we agree there is no reversible error and therefore affirm.

AFFIRMED.

BOYER, C. J., concurs.

McCORD, J., dissents.

McCORD, Judge

(dissenting).

I disagree that the error under point three was harmless and therefore dissent.


source: Caselaw Access Project

author: DENNIS, Justice. PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Jerry JENKINS.
    No. 57479.
    Supreme Court of Louisiana.
    June 21, 1976.
    On Rehearing Oct. 19, 1976.

      Bobby L. Culpepper, Donald C. Brown, Baker, Culpepper & Brunson, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Jerry Jenkins, was charged by bill of indictment with aggravated rape, in violation of La.R.S. 14:42. He pleaded not guilty, and after trial by jury was convicted of attempted aggravated rape. He was sentenced to twenty years at hard labor and appealed his conviction on the Basis of twenty assignments of error.

At approximately 2:30 in the morning on Sunday, July 27, 1975, the victim and a friend of hers, a Mr. Church, were conversing in her home in Ruston, Louisiana. The victim testified that she heard a noise which may have been the defendant entering her house through a window, but concluded that the sound was from the railroad tracks that ran near the house. When she got up to go to the bathroom, the defendant confronted her. She recognized him as a person she had seen at her place of business and at other locations in Ruston.

Defendant told the prosecuting witness that he had just committed a robbery and needed somewhere to stay. She testified that defendant appeared to be nervous, and so the victim, the defendant, and Mr. Church sat down in the living room. They talked for ten to fifteen minutes, and the defendant then told the victim to accompany him to the back of the house. The victim said that she hesitated, but finally complied when he pulled out a gun, keeping it out of Mr. Church’s sight. The victim testified that the defendant then forced her to have sexual intercourse with him in her bedroom, during which he continued to hold the gun. She stated that she submitted to the act because of fear for her safety and defendant’s specific threat to kill Mr. Church if she resisted.

After the forced sexual encounter the defendant and the victim returned to the living room, where they talked and drank some coffee with Mr. Church. The victim testified that defendant shortly thereafter expressed a desire that she return to the bedroom with him. He again pulled the gun out and on this occasion aimed it at the back of Mr. Church’s head. Church testified that he heard a clicking sound, but didn’t see the weapon since his back was to the defendant. Once again the prosecuting witness accompanied the defendant into the bedroom and had intercourse with him. They returned to the living room and talked with Mr. Church until 8:00 a. m., when defendant finally left.

The victim testified that, despite her emotional distress, she probably would not have reported the event to the police, except that the defendant began calling her at work. Thus, two days after she was allegedly raped, she complained to police and the instant charges were filed.

ASSIGNMENTS OF ERROR NOS. 1 THROUGH 9

Defendant’s first eight assignments of error complain of various procedural defects in the conduct of the preliminary examination held after arrest and before the filing of the bill of information. His ninth assignment contends that the trial court erred in finding that the State established at the preliminary examination probable cause to detain defendant for committing aggravated rape. The various allegedly erroneous rulings of the trial judge include the following: allowing the prosecuting witness to testify that the defendant, before raping her, said that he had committed a robbery earlier that night; refusing to sequester the investigating officer; allowing the district attorney to ask the prosecuting witness leading questions; permitting the victim to testify as to telephone calls she believed were made to her by defendant after the rape; and sustaining the State’s objection of irrelevancy to two defense questions asked the victim.

Although all of the procedural safeguards of a criminal jury trial need not be afforded at a preliminary examination, the accused has a right to a hearing that insures a fair and impartial determination of the issue of probable cause. Absent an intelligent waiver thereof, the hearing may not be conducted without benefit of cousel for the defendant. La. C.Cr.P. art. 293; Art. I, § 13, La.Const. 1974; see Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). The hearing is to be full-blown and adversary, and one in which the defendant is entitled to confront witnesses against him and to have full cross-examination of them. La.C.Cr.P. art. 294. These provisions were fashioned after the A.L.I. Code of Criminal Procedure, §§ 46, 49, and generally comport with the more recent A.L.I. Model Code of Pre-Arraignment Procedure, 330.4(4), which would apply all the rules of evidence for trial in criminal cases to the preliminary examination, with some limited exceptions to the rule against admitting hearsay evidence.

We also note that the right to a preliminary examination has been accorded the status of a constitutional right in felony cases in Louisiana by the adoption of Art. I, § 14, La.Const. of 1974. The convention in drafting this article contemplated the type of formal, adversary proceeding provided for by our Code, including the right to subpoena and cross-examine witnesses. Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 49 (1974). The elevation of the right to a preliminary examination to a constitutional guarantee reflects a recognition by the people of Louisiana of the importance of according an accused a prompt and thorough determination that there is sufficient cause to deprive him of his liberty.

At the same time, our La.Code of Criminal Procedure has specifically incorporated the concept that inconsequential defects in the conduct of the preliminary examination will not mandate release of the accused or rendering the proceeding invalid. La.C.Cr. P. art. 298 provides:

“A person ordered held in custody following a preliminary examination shall not be discharged on a writ of habeas corpus or by other process because of any informality or error in the commitment or the proceedings prior thereto that does not substantially prejudice him. No preliminary examination shall be held invalid for any purpose because of an informality or error that does not substantially prejudice the defendant.”

This provision is substantially the same as § 60(1) of the A.L.I. Code of Criminal Procedure. The Official Revision Comment to our article 298 states that, although the redactors felt this provision was probably unnecessary since it is merely a restatement of the harmless error rule which applies to all proceedings, “ * * * it was thought advisable to codify this basic principle.”

We have reviewed the trial court rulings during the preliminary examination which were assigned as errors by the defendant. Each ruling complained of was either correct or, if technically inaccurate, did not prevent a full and fair hearing on the issue of probable cause. The State placed both the alleged rape victim and her companion, Mr. Church, on the stand, and they were subjected to thorough cross-examination by defense counsel. Defendant was offered an opportunity to present evidence but chose not to do so. We have also examined the record in light of defendant’s allegation that the trial court consistently allowed the State greater latitude than the defense in questioning witnesses during the preliminary examination. This serious allegation, if proven, would affect the basic validity of the preliminary examination; however, our review of the record does not reveal such partiality on the part of the trial judge, and we find that his rulings were generally correct and impartial. We conclude, therefore, that the proceeding was free of any informality or error that would have substantially prejudiced the defendant, and that the trial judge’s finding of probable cause was not erroneous.

For the foregoing reasons, we conclude that Assignments of Error Nos. 1 through 9 are without merit.

ASSIGNMENT OF ERROR NO. 10

This assignment of error is based upon the defendant’s allegations that the warrant issued for his arrest was defective and that his arrest was therefore illegal. We note, first of all, that an illegal arrest does not, in and of itself, void a subsequent conviction. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

However, we have examined defendant’s complaints as to the warrant’s validity and find them to be without merit. The motion to quash the arrest attacked the warrant on the grounds that (1) it was issued upon an affidavit executed by the Police Chief of the City of Ruston rather than by the complaining witness, and was therefore based on hearsay rather than direct evidence; and (2) the judge issuing the warrant was the judge of the City Court, the jurisdiction of which does not extend to offenses prohibited by state law.

Louisiana Code of Criminal Procedure article 202 provides:

“A warrant of arrest may be issued by any magistrate, and, except where a summons is issued under Article 209, shall be issued when:
“(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any; and
“(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.
“When complaint is made before a magistrate of the commission of an offense in another parish, the magistrate shall also immediately notify the district attorney of the parish in which the offense is alleged to have been committed.”

The terms of the article clearly do not require that the person executing the affidavit upon which the warrant is issued have firsthand knowledge of the offense alleged to have been committed. The complainant need only specify “to the best of his knowledge and belief” the basic details of the crime alleged to have been committed. Hearsay evidence may certainly form the basis for the issuance of an arrest warrant.

Article 202 authorizes “any magistrate” to issue the warrant, and does not demand that the court in which he presides have jurisdiction of the matter. Clearly, the City Judge of the City of Ruston is a magistrate within the meaning of the code, and had authority to issue the warrant for defendant’s arrest.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 11

This assignment is based upon the trial court’s refusal to require the State to answer a number of questions in the motion for bill of particulars. The function of the bill of particulars is to inform the defendant more specifically of the nature and cause of the charge against him. La. C.Cr.P. art. 484. It is not a discovery device or a means of securing the details of the State’s evidence. State v. Simpson, 216 La. 212, 43 So.2d 585 (1949) ; State v. Rose, 271 So.2d 863 (La.1973).

The State properly refused to answer the ten questions which defendant complains should have been answered. Question 4 requested information as to where in the parish the offense charged was allegedly committed. This information had already been made known to the defendant at the preliminary examination, which was held before the filing of the motion for a bill of particulars. Questions 5 and 6 asked the time and place defendant was arrested and by whom. We have held that this sort of information goes beyond the scope of informing defendant of the nature and cause of the charge against him. State v. Hollingsworth, 292 So.2d 516 (La. 1974).

Questions 7, 8, and 14 sought to discover how the State had determined the defendant committed the alleged crime, the date upon which the alleged crime was reported to the State, and the manner in which defendant allegedly committed the crime. Once again, this sort of information involves revealing the details of the State’s evidence and need not be supplied to the defendant. State v. Fresal, 278 So. 2d 64 (La.1973).

Question No. 9 asked the date the crime was allegedly committed. This information was supplied in the bill of indictment, and there was therefore no need for the State to answer this question in the bill of particulars.

Questions Nos. 12 and 13 requested information as to whether any property of the defendant was searched or seized, and if so, requested a copy of the search warrant and a list of the names and addresses of persons having access to the seized items. Defendant was informed by the State that any search warrant together with the return would be in the record and available to him. Moreover, this Court has held that the above information may not be the subject of a motion for a bill of particulars. State v. Hollingsworth, supra.

Finally, Questions 17 and 18 sought the names and addresses of all witnesses in the case and the FBI and local arrest and conviction records of all persons the State intended to call as witnesses. The State’s refusal to answer the questions in the bill of particulars was justified under our prior jurisprudence. State v. Devore, 309 So.2d 325 (La.1975).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 16

This assignment of error complains of the trial court’s refusal to grant defendant’s motion for a mistrial, made out of the presence of the jury after the prosecuting witness completed her testimony. The basis urged for the mistrial was the possible prejudice suffered by the defendant because the witness brought a pillow and pillow case with her to the stand, which were not referred to in her testimony or introduced into evidence.

The only ground for mistrial which might arguably be applicable under the facts of this case is “ * * * prejudicial conduct in or outside the courtroom * * * ” which “ * * * makes it impossible for the defendant to obtain a fair trial * * *La.C.Cr.P. art. 775. After carefully reviewing the record, we have concluded that the defendant was not prejudiced or denied a fair trial by the fact that the alleged rape victim held a pillow and pillow case when she testified. It is unclear what prompted this peculiar procedure and we have given it very close scrutiny. However, we are convinced that no harm resulted to defendant from the jury viewing these items and therefore conclude that this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 18

As his eighteenth assignment of error, defendant claims that he was prejudiced by the district attorney reading to the jury the Webster’s New International Dictionary’s definition of the word “threat,” a term included in the definition of aggravated rape. Defendant argues that the redactors of the La.Code of Criminal Procedure and the legislature may not have intended the word “threat” to have the meaning ascribed to it in Webster’s Dictionary, and that it was therefore improper to read the definition to the jury.

We note, first of all, that unless the legislature has attached a particular meaning to a term different from that usually understood in common parlance the common definition of the word will be presumed to be the one intended. State v. Saibold, 213 La. 415, 34 So.2d 909 (1948); State v. Robertson, 241 La. 249, 128 So.2d 646 (1961). In these two cases, this Court looked to Webster’s Dictionary to determine the common meaning of statutory language, and, absent special circumstances, we see nothing wrong with this method of interpreting laws.

Moreover, the trial court instructed the jury that it must follow the law as given and defined by the judge, and not the attorneys. Thus, the jury was aware that the comments of the district attorney were merely argument and that they were not bound to apply the law as interpreted by the district attorney. Moreover, the argument was permissible, since counsel are allowed to argue the law applicable to the case. La.C.Cr.P. art. 774;

Because no apparent prejudice was caused defendant by the remarks related to this assignment of error, we find that it has no merit.

ASSIGNMENT OF ERROR NO. 19

During the State’s closing argument, the following comments were made by the district attorney:

“[PROSECUTOR]:
“Now, getting to the panties, she said that he took her panties off and they were off when they had sexual intercourse. What bit of evidential value would it have to introduce into evidence the panties that were taken off that woman? He make [sic] a big hullabaloo about our not introducing into evidence the panties that were taken off. What evidential value would they have had? They would have had no value whatsoever. We’ll admit right now that there was no sperm or spermatozoa on those panties, but it was on this sheet and it was on that pillow case. The defendant would have you to believe that this [witness] .
“[DEFENSE COUNSEL]:
“Your Honor, .
“THE COURT;
“Just a minute.
“[PROSECUTOR]:
“This fine lady .
“[DEFENSE COUNSEL]:
“Your Honor, at this time based on that remark, we would move for a mistrial. There is no testimony of anything on a pillow case.
“[PROSECUTOR]:
“I’m not speaking of the pillow case, I’m talking of the sheet and the gown, the nightgown, the gown it was on. If I said pillow case, I mean .
“[DEFENSE COUNSEL]:
“We would move for a mistrial on that basis, combined with what we previously brought to the attention to the Court, Your Honor.
“THE COURT:
“The jury is instructed that the closing arguments of counsel have to be confined to the facts that have been introduced into evidence and the matters of general and common knowledge and to the fair and reasonable conclusions to be drawn therefrom and you are to disregard any reference to any matter that was not of fact introduced into evidence. The motion for mistrial is denied.
“[DEFENSE COUNSEL]:
“To which ruling we would object, Your Honor.”

Defendant argues that the district attorney’s reference to a pillow case that was not introduced in evidence prejudiced defendant so that he could not receive a fair trial, and that the trial court therefore erred in refusing to grant defendant a mistrial, as requested by counsel.

Louisiana Code of Criminal Procedure article 770 lists the comments which, if made by the district attorney or other named officials, mandate a mistrial. The reference made by the district attorney in his closing argument in this case does not fall into any of these categories. Thus, La.C.Cr.P. art. 771 is applicable. That article states:

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
“(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
“(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a' court official, regardless of whether the remark or comment is within the scope of Article 770.
“In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

The court in the instant case admonished the jury to disregard the comment, which appeared to have been made inadvertently by the district attorney. The district attorney probably intended to refer instead to another article, the rape victim’s nightgown, which contained spermatozoa and was admitted in evidence. Considering the judge’s admonition and all of the circumstances of this case, the reference to the pillow case did not constitute grounds for a mistrial.

Thus, this assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 20

This assignment was based upon the trial court’s refusal of defendant’s motion for a mistrial due to a comment by the district attorney during his rebuttal. However, a statement made by defense counsel during his closing argument and before the district attorney’s comment helps to place the prosecutor’s statement in perspective:

“[DEFENSE COUNSEL]:
“The State chose not to require the attendance of Dr. Boyd who was the doctor that [the victim] went to some four or five days after this alleged event. It would seem to me and in all the rape cases I have ever been involved in either defending or prosecuting when I was assistant D. A., one of the main witnesses that you always has [sic] is the doctor. He is one of the few impartial witnesses that you can get in a case like this but the State made no effort to get Dr. Boyd here to even testify about anything and I submit to you the reason they did not is that the testimony of Dr. Boyd would not have helped the State at all but that he would have to say that [the victim] didn’t even tell him anything about being sexually molested. We tried to get Dr. Boyd here, we issued a subpoena to Dr. Boyd and I’m still checking to see what happened to the subpoenas. We tried to get the doctor here so that we could put him on the stand and question him since the State chose not to make any attempt whatsoever to get him here, but we were not successful.”

In response to defense counsel’s argument, the district attorney stated on rebuttal :

“[PROSECUTOR]:
“The only eye witnesses to — all the eye witnesses, I say all the eye witnesses to this offense of aggravated rape were called and placed on this witness stand, every one of ’em. There is [the victim] and Mr. Church, they were the only eye witnesses there and they were called and they testified. What could the doctor who examined this lady some week later, what could he add to the case? What would his evidence be worth? His evidence would be only worth this, and I lay the blame on the defense for not having him here, if [the victim] did not tell him she had been raped, he would have told the defense that she told him that and that would have been some kind of evidence in his favor, wouldn’t it? The burden was upon the defendant to have that doctor here. He couldn’t testify to save his life some week after the thing took place that this woman had been raped.”

Defense counsel objected and the following discussion took place:

“[DEFENSE COUNSEL]:
“Your Honor, we object to that and move for a mistrial. The burden is not on us to have the doctor here on a rape case and [the prosecutor] knows that. I think it is improper to argue to the Jury the burden is on us to have someone here to establish that particular item, Your Honor.
“THE COURT:
“I again want to instruct the Jury that argument of counsel has to be confined to the facts that have been introduced into evidence and to fair and reasonable conclusion to be drawn therefrom and anything else, you are to disregard.
“[DEFENSE COUNSEL] :
“Did you rule on the motion, Your Honor ?
“THE COURT:
“Did you move for .
“[DEFENSE COUNSEL]:
“I moved for a mistrial.
“THE COURT:
“The motion for mistrial is denied.
“[DEFENSE COUNSEL]:
“To which ruling we would object, Your Honor.
“THE COURT:
“That objection is made part of the record.
“[PROSECUTOR]:
“Ladies and gentlemen of the Jury, he raised the question of the doctor not being here. The defendant himself wanted to know why the doctor wasn’t here. I have the same right to ask him as to why that doctor wasn’t here, and I’m asking him now wasn’t he here, and he wasn’t here. We said from the very beginning that that doctor couldn’t add one bit of evidential value to the prosecution of this case. That’s the reason he wasn’t here.”

Louisiana Code of Criminal Procedure article 774 states in pertinent part:

“The state’s rebuttal shall be confined to answering the argument of the defendant.”

The trial court admonished the jury to disregard any comments by counsel other than their argument on the evidence and reasonable conclusions drawn therefrom. We find that the comments of the district attorney were proper as answering on rebuttal defense counsel’s argument, and that the admonition by the trial court assured that the jury would take those comments in the proper perspective.

Assignment of Error No. 20 has no merit.

Finally, we have reviewed Assignments of Error Nos. 12, 13 and 14 based upon the trial judge’s actions with regard to allowing the State to recall the prosecuting witness to the stand, No. 15 based on the introduction of the victim’s gown and sheet into evidence, and No. 17 based on the denial of defendant’s motion for a directed verdict. We find no merit in these assignments as the action taken by the trial judge was in each respect within his authority as the judge presiding and supported by the law and the evidence.

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED.

SUMMERS and MARCUS, JJ., concur.

SANDERS, C. J., concurs in the result only.

ON APPLICATION FOR REHEARING

PER CURIAM.

In his application for a hearing the defendant points out that in our discussion of Assignment of Error No. 16 we erred in stating that the prosecuting witness brought a pillow and pillow case with her to the stand, which were not referred to in her testimony or introduced into evidence. Actually these events occurred during the testimony of Mrs. Judy Houston, a criminalist employed by the Northwest Louisiana Crime Laboratory. Otherwise, the facts were correctly stated in our original opinion. Defendant argues, however, that because the articles not introduced into evidence were held during a court appearance by the expert witness, instead of by the victim, that this peculiar procedure was much more harmful to his case than we appreciated upon our initial consideration.

After reviewing the pertinent portion of the record again, we are of the opinion that the fact that the pillow and pillow case were held by the expert witness, instead of by the alleged rape victim, did not render the occurrence more damaging to defendant’s case. For the reasons stated in our original opinion in discussing Assignments of Error Nos. 16 and 19, although we do not condone or encourage such practices, we remain convinced that no harm resulted to defendant from the jury viewing these items. Therefore, we conclude the application for rehearing should be denied.

       La.R.S. 14:42 provides:
      “Aggravated rape is a rape, heterosexual or homosexual, committed where the sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
      “(1) AVhere the victim resists the act to the utmost, but whose resistance is overcome by force;
      “(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution;
      “ (3) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
      “Whoever commits the crime of aggravated rape shall be punished by death.” (Emphasis added.)


text:
    STATE of Louisiana ex rel. Tommy D. LONG v. Mr. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, et al.
    No. 58456.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Tommy D. Long applying for Writ of Mandamus.

Granted. The trial judge is ordered to rule on Long’s application within ten days or show cause to the contrary in this court on the 8th day of November, 1976.


text:
    James A. MOREAU v. Richard A. TONRY, et al.
    No. 58744.
    Supreme Court of Louisiana.
    Oct. 12, 1976.
   In re: Richard A. Tonry and First Congressional District Democratic Executive Committee applying for writ of certiorari, prohibition, mandamus and stay order.

Application denied; as for the exception of lis pendens, the first suit has been dismissed; the trial judge has not ruled on the exceptions which are the bases for the other assignments.


text:
    STATE of Louisiana v. Donald LOVETT.
    No. 58758.
    Supreme Court of Louisiana.
    Oct. 14, 1976.
    Writ Refused Jan. 24,1977.
   In re: William J. Guste, Jr., Attorney General, State of Louisiana applying for remedial writs and stay order.

Writ refused. The ruling of the trial judge is correct. See, art. 681, C.Cr.P. and comment (b).


text:
    STATE of Louisiana ex rel. Fred O. ROBERTSON v. Ross MAGGIO, Warden.
    No. 58299.
    Supreme Court of Louisiana.
    Oct. 14, 1976.
   In re: Fred O. Robertson applying for writ of habeas corpus.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Hon. Matthew Braniff, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 21st day of October, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 8th day of November, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Paul E. BOETTCHER.
    No. 58770.
    Supreme Court of Louisiana.
    Oct. 19, 1976.
   In re: Paul E. Boettcher applying for Writ of Review.

Writ denied. Adequate remedy in the event of conviction upon appeal.


text:
    Joseph POLOZOLA v. GARLOCK, INC.
    No. 58404.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Jon Kiggans, David Schneblen, Bill Garlington and Associated Indemnity Corp., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of E. Baton Rouge, 334 So.2d 530.

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 ex rel. Wilfred YOUNG v. Mr. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58717.
    Supreme Court of Louisiana.
    Oct. 15, 1976.
   In re: Wilfred Young applying for remedial writs, alternately, writs of mandamus, certiorari and/or habeas corpus.

Writ granted. Out of time appeal granted. The trial judge is ordered to appoint counsel for appeal.


text:
    LOUISIANA NATIONAL BANK OF BATON ROUGE v. TRIPLE R CONTRACTORS, INC., et al.
    No. 58405.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: La. National Bank of Baton Rouge, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 334 So.2d 516.

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:
    J. Clem DREWETT et al. v. STATE of Louisiana.
    No. 58371.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: J. Clem Drewett, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 334 So.2d 443.

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


text:
    HOOD MOTOR COMPANY, INC. v. James W. LAWRENCE.
    No. 58407.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: James W. Lawrence applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 334 So.2d 460.

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


text:
    Rudolph Dawes EASTERLY and Willie E. Wild, Jr. v. DYNAMIC ENTERPRISES, INC., et al.
    No. 58410.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Rudolph Dawes Easterly and Willie E. Wild, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston, 334 So.2d 467.

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


text:
    John POPE v. REPUBLIC UNDERWRITERS INS. CO.
    No. 58412.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Republic Underwriters Insurance Company, applying for Certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of Washington, 334 So.2d 441.

Application denied. On the facts found by the Court of Appeal, there is no error in their judgment.


text:
    Louis CULPEPPER v. NATCHITOCHES PARISH SCHOOL BOARD.
    No. 58414.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Louis L. Culpepper applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoch-es, 333 So.2d 453.

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


text:
    Mrs. Blanche E. EVERETT v. James E. EVERETT.
    No. 58418.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: James E. Everett applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 334 So.2d 511.

Writ denied. No error in result.


text:
    STATE of Louisiana ex rel. Clovers HAYES v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 58419.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Clovers Hayes applying for Writs of Certiorari, Prohibition and Mandamus.

Denied. There is no error of law in the ruling of the trial judge.


text:
    Ridley HEBERT v. ARASTAR MANAGEMENT CORP., and Uptown Auto Parts et al.
    No. 58470.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Ridley Hebert applying for Writs of Certiorari, Prohibition and Mandamus.

Writ application refused. According to notification of relator, the trial judge has ruled on the motion for a new trial; hence, this application is now moot.


text:
    STATE of Louisiana v. Paul E. BOETTCHER.
    No. 58543.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Paul E. Boettcher applying for Writ of Mandamus.

Writ denied. Clerk of court has advised that transcript of Dec. 3, 1975 hearing has been furnished defendant; that transcript of April 7, 1976 hearing will be delivered to defendant upon completion. Relator has not presented the remaining request to the trial court.


text:
    STATE of Louisiana v. Dale WATSON and Jeanette Watson.
    No. 58623.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Dale Watson and Jeanette Watson applying for Supervisory Writs of Prohibition, Mandamus and Stay Order.

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


text:
    STATE of Louisiana v. Vernetta HOLDEN.
    No. 58775.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Vernetta Holden applying for Writs of Certiorari, Mandamus, Prohibition and Review.

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


text:
    James A. MOREAU v. Richard A. TONRY et al.
    No. 58764.
    Supreme Court of Louisiana.
    Oct. 20, 1976.
   In re: Robert L. Livingston, applying for supervisory and/or remedial writs.

Writ denied. Petitioner’s application filed on October 15, 1976 to have this Court require the trial judge to rule by or before 9:00 A.M. on Monday, October 18, 1976 became moqt when the trial judge decided the case on October 15, 1976.


text:
    STATE of Louisiana v. Henry A. REID, Jr.
    No. 58784.
    Supreme Court of Louisiana.
    Oct. 21, 1976.
   In re: Henry A. Reid, Jr. applying for Supervisory Review.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable L. E. Hawsey, Jr., Judge of the 14th Judicial District Court for the Parish of Calcasieu to transmit to the Supreme Court of Louisiana, on or before the 27th day of October 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 27th day of October, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Joseph Cage MATHEWS, III.
    No. 58782.
    Supreme Court of Louisiana.
    Oct. 21, 1976.
   In re: Joseph Cage Mathews, III, applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Granted. The trial judge is ordered to grant a preliminary hearing prior to trial.


text:
    STATE of Louisiana v. Arthur VALENTINE et al.
    No. 58765.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: State of Louisiana applying for Supervisory Writs.

Writ denied. We find no abuse of discretion in the ruling of the trial judge.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. JEANERETTE LUMBER AND SHINGLE COMPANY, LTD.
    No. 58437.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Jeanerette Lumber and Shingle Company, Ltd., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Iberville, 335 So.2d 453.

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 Thru the DEPARTMENT OF HIGHWAYS v. JEANERETTE LUMBER AND SHINGLE CO., LTD.
    No. 58438.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Jeanerette Lumber and Shingle Co., Ltd., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Iberville, 335 So.2d 456.

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. Joseph Clayton SEPULVADO.
    No. 58448.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Joseph Clayton Sepulvado, applying for writs of certiorari, mandamus, prohibition and review.

Writ granted. Extension of time is granted until October 31, 1976 to file assignments of error.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS v. OLINKRAFT, INC.
    No. 58451.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Olinkraft, Inc., applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Union, 333 So.2d 721.

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 ex rel. Charles FORT v. Perry M. JOHNSON, Jr., Clerk of Court, Parish of East Baton Rouge.
    No. 58453.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Charles Fort applying for Writ of Mandamus and Habeas Corpus.

Writ granted. It is ordered that relator be furnished a free transcript of the evidence taken at the evidentiary hearing on his petition for habeas corpus.


text:
    STATE of Louisiana ex rel. Simon SMITH, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 58457.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Simon Smith, Jr. applying for Writs of Habeas Corpus and Certiorari.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable B. I. Berry, Judge of the Fifth Judicial District, Court for the Parish of Franklin, to transmit to the Supreme Court of Louisiana, on or before the 5th day of November, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 28th day of January, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    J. B. BAILEY v. C. W. LOWERY.
    No. 58411.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: J. B. Bailey, applying for Certiora-ri, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne, 334 So.2d 482.

Writ denied. Under the specifications of error, and under the Court of Appeal’s factual resolution of disputed fact, the petitioner is not entitled to the relief sought.


text:
    Jerome W. JAHRMAN et al. v. VALLEY AIR PARK, INC., et al.
    No. 58423.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Jerome W. Jahrman, et al. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Franklin. 333 So.2d 712.

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


text:
    STATE of Louisiana ex rel. Dan E. ROBERTSON v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 58426.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Dan E. Robertson, applying for writ of mandamus.

Not considered. According to advice from the Clerk of the Criminal District Court, Orleans Parish, applicant has filed no petition for a speedy trial or for removal of a detainer against him. Until he presents these issues to the trial court, they will not be considered here.


text:
    In re LOUISIANA ASSOCIATION OF DEFENSE COUNSEL, an unincorporated association, et al., Applying for Review of Opinion 342 of the Committee on Professional Responsibility of the Louisiana State Bar Association.
    No. 58428.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Louisiana Association of Defense Counsel applying for Review of Opinion 342 of Committee on Professional Responsibility of the La. State Bar Assn.

Application denied. There is no error in opinion 342.


text:
    DUNCKELMAN DISTRIBUTING CO., INC. v. S. Aubrey HYDE, d/b/a Hyde Furniture and Appliance (American Electronics, Inc. Garnishee).
    No. 58430.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: American Electronics, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 334 So.2d 236.

Writ denied. No error of law.


text:
    STATE of Louisiana ex rel. Willie Lee McClinton v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58434.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Willie Lee McClinton applying for Writ of Habeas Corpus.

Writ refused. Relator is not entitled to relief sought.


text:
    George GOODEAUX et ux. v. MARTIN HOSPITAL, INC., et al., and Dr. Roy Martin.
    No. 58441.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Mr. and Mrs. George Goodeaux applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Winn. 333 So.2d 717.

Writ denied. Under the facts found by the court of appeal there is no error of law.


text:
    Paul M. BOUNDS v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    No. 58443.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Paul M. Bounds applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 333 So.2d 714.

Writ refused. No error of law.


text:
    Billy J. WOODWARD, Individually and as Administrator of the Estate of his minor son, Joseph E. Woodward v. FIRST OF GEORGIA INSURANCE et al.
    No. 58445.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: First of Georgia Insurance Co., et al. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Red River. 333 So.2d 709.

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


text:
    STATE of Louisiana v. John SULLEN.
    No. 58452.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: John Sullen applying for Writ of Habeas Corpus.

Writ denied. No error in the ruling of the trial judge, in view of the allegations of applicant’s petition for writ of habeas corpus.


text:
    STATE of Louisiana ex rel. Felton BLACKWELL v. Ross MAGGIO, Warden.
    No. 58454.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Felton Blackwell, applying for writ of habeas corpus.

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


text:
    STATE of Louisiana ex rel. Michael (Mike) MILLER v. COURT REPORTER, PARISH OF RICHLAND, FIFTH JUDICIAL DISTRICT.
    No. 58458.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Michael (Mike) Miller applying for Writ of Mandamus.

Application denied. Applicant is not entitled to a transcript to search out error to seek post conviction remedy. If an out-of-time appeal is sought and granted, applicant may be entitled to a transcript.


text:
    STATE of Louisiana ex rel. Kenneth DAVIS et al. v. Hon. Matthew S. BRANIFF, Judge, Orleans Parish, Criminal District Court.
    No. 58503.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Kenneth Davis, et al., applying for writ of mandamus and habeas corpus.

Writ denied. Upon the trial court’s assurance by its letter of October 20th, 1976 that the Davis appeal will be filed in this court by November 5th, the Williams appeal by November 18th, and the Hayes appeal by November 30th, the application is dismissed as moot.


text:
    STATE of Louisiana v. R. Lee McDANIEL.
    No. 58604.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: R. Lee McDaniel, applying for remedial writs.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana v. Roger Lee McDANIEL.
    No. 58745.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Roger Lee McDaniel applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. We find no merit to relator’s application for writs.


text:
    STATE of Louisiana v. Michael W. BURGE.
    No. 58761.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: State of Louisiana applying for Supervisory Writs.

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


text:
    STATE of Louisiana ex rel. Paul J. LACOSTE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58455.
    Supreme Court of Louisiana.
    Oct. 22, 1976.
   In re: Paul J. Lacoste, applying for writ of habeas corpus.

Writ refused. The allegation concerning the length of sentence is without merit. The remaining assignments of error were disposed of on appeal. See State v. Lacoste, 256 La. 697, 237 So.2d 871.


text:
    STATE of Louisiana ex rel. Chester R. WILLIAMS v. Ross G. MAGGIO, Warden Louisiana State Penitentiary, et al.
    No. 58490.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: Chester R. Williams, applying for writ of certiorari.

Granted. It is ordered that relator be returned to the Orleans Parish Prison pending his appeal, and that the transcript of evidence and the record of this trial be lodged in this Court within thirty days.


text:
    The FIDELITY AND CASUALTY CO. OF NEW YORK et al. v. Evelyn Diffey MASTERS et al.
    No. 58477.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: Evelyn Diffey Masters, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bienville. 335 So.2d 722.

Writ denied. No error of law.


text:
    STATE of Louisiana ex rel. Edward J. DAVENPORT v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 58491.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: Edward J. Davenport, applying for writ of habeas corpus.

Writ denied. The allegations do not entitle the petitioner to the relief sought. See also trial court’s reasons for judgment.


text:
    Theda Kay PARKER et vir. v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.
    No. 58492.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: Minden Sanitarium, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo.

Writ refused. No error of law.


text:
    Roland LELEUX et al. v. P. & S. RICE MILLS, INC., et al.
    No. 58493.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: Roland Leleux, et al. applying for Writs of Certiorari, and/or Review, Prohibition and Mandamus.

Application denied. We cannot find error in the order of the district judge.


text:
    STATE of Louisiana v. John B. MORNEAU.
    No. 58500.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: John B. Morneau applying for Writ of Review.

Writ refused. We find no error of law warranting the exercise of our supervisory jurisdiction.


text:
    Annie THOMPSON v. NATCHITOCHES PARISH HOSPITAL SERVICE DISTRICT et al.
    No. 58504.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: Natchitoches Parish Hospital Service Dist. and Argonaut Southwest Ins. Co., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 335 So.2d 81.

Application denied. On the facts found, no error of law.


text:
    STATE of Louisiana ex rel. Tookie DAVALIE v. Bernard J. BAGERT, Sr., Judge, Criminal District Court, Parish of Orleans.
    No. 58756.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: Tookie Davalie applying for Writ of Mandamus.

Writ denied. The matter is moot. Relator’s application for habeas relief was denied by trial court on October 5, 1976.


text:
    NEW COMMUNITIES, INC. v. TRI-SOUTH MORTGAGE INVESTORS.
    No. 58807.
    Supreme Court of Louisiana.
    Oct. 27, 1976.
   In re: New Communities, Inc., applying, for writs of certiorari, mandamus and prohibition and for Stay Order.

Writ refused. We find no abuse of discretion by the trial court.


text:
    STATE of Louisiana v. Joseph PIERCE.
    No. 58564.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Joseph Pierce applying for Writs of Certiorari, Review, Prohibition, Mandamus and Stay Order.

Application granted. The ruling complained of is reversed; the case is remanded to the district court and the defendant will be permitted to withdraw his plea of guilty and enter another plea.


text:
    STATE of Louisiana v. Donovan BALL.
    No. 58569.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Donovan Ball applying for Writ of Review and Out of Time Appeal.

Out of time appeal granted. The trial court is ordered to appoint an attorney to represent applicant on appeal.


text:
    Mrs. Mary C. FIORELLO v. Mrs. Mamie Musso, wife of Frederick KNECHT.
    No. 58515.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Mrs. Mamie Musso, wife of Frederick Knecht applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 334 S.2d 761.

Writ denied. The result is correct.


text:
    Edward BAILEY v. SCHOTT AND COMPANY, INC. and Liberty Mutual Insurance Company.
    No. 58519.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Edward Bailey applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 334 So.2d 753.

Writ denied. On the facts found by the Court of Appeal there is no error of law in the judgment complained of.


text:
    Mrs. Mary K. Whittaker wife of/and John WHITTAKER v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS and Fireman’s Fund American Insurance Company.
    No. 58524.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Schwegmann Brothers Giant Supermarkets and Fireman’s Fund American Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 334 So.2d 756.

Application denied. No error of law in the judgment of the court of appeal.


text:
    LUSK SHIPPING COMPANY, INC. v. INTERNATIONAL TRADE MART et al.
    No. 58526.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: International Trade Mart, Cross-Country Development Corp. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 334 So.2d 784.

Writ denied. No error of law.


text:
    STATE of Louisiana v. Richard V. JONES and Cheariee Griffin.
    No. 58527.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: State of Louisiana applying for Writ of Certiorari, Mandamus and Prohibition.

Writ denied. The judgment is correct.


text:
    STATE of Louisiana ex rel. A. J. MYERS v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 58541.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: A. J. Myers, applying for writ of certiorari.

Application denied. For the reasons expressed in the opinion of the trial judge, there is no merit to the application.


text:
    STATE of Louisiana ex rel. Forrest HAMMOND v. C. Murray HENDERSON, Former Warden Louisiana State Penitentiary.
    No. 58542.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Forrest Hammond, applying for writ of habeas corpus and remedial writs of certiorari.

Writ denied. In view of the colloquy at the time of the plea of guilty (Oct. 15, 1973) the allegations of the application do not show that the applicant is entitled to the relief sought.


text:
    Alfred DRIGGERS, Jr. v. SOUTHERN FARM BUREAU, CASUALTY INSURANCE COMPANY and Mr. and Mrs. T. O. Thrash.
    No. 58548.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Alfred Driggers, Jr., applying for Certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bien-ville. 335 So.2d 718.

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


text:
    STATE of Louisiana ex rel. Michael ALLISON v. W. C. PERCY, Sheriff, West Feliciana Parish.
    No. 58605.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Michael Allison applying for Writ of Mandamus.

Writ denied. Since the trial judge denied the application for habeas corpus on July 29, 1976 this application for mandamus is moot.


text:
    STATE of Louisiana ex rel. Verg Lee NERO v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58769.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Verg Lee Nero, In Proper Person, applying for writ of mandamus.

Application denied — moot. The district judge denied the writ of habeas corpus October 21, 1976.


text:
    STATE of Louisiana v. Dennis Ray WASHINGTON.
    No. 58803.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Dennis Ray Washington applying for Writ of Certiorari, Prohibition and Mandamus.

Application denied. The application does not show that only hearsay was presented at the preliminary hearing.


text:
    Robert O. LANDRY v. Flora VILLERE et al.
    No. 58531.
    Supreme Court of Louisiana.
    Oct. 29, 1976.
   In re: Robert 0. Landry, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 335 So.2d 46.

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.


author: SMITH, Judge. BOLIN, Judge.

text:
    Donald J. ZADECK et al., Plaintiffs-Appellants, v. ARKANSAS LOUISIANA GAS COMPANY, Defendant-Appellee.
    No. 12877.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    On Rehearing Sept. 27, 1976.
    Greene, Ayres & Mayo, by Robert K. Mayo, Shreveport, for plaintiffs-appellants Donald J. Zadeck, DeSoto Gas Producing Co., Inc., Louis Egan and Belle Bower Production Co., Inc.
    Blanchard, Walker, O’Quin & Roberts, by Robert Roberts, III, Shreveport, for defendant-appellee.
    Before BOLIN, MARVIN and SMITH, JJ-
   SMITH, Judge.

Plaintiffs seek cancellation of a gas purchase agreement entered into in 1957 by A. R. Cassard, plaintiffs’ ancestor in title, and Arkansas Louisiana Gas Company (hereafter, “Arkla”) calling for the sale of the gas produced from two wells located in the Stonewall Field in DeSoto Parish. In 1972 the purchase agreement was amended in several respects, including an increase in the amount paid for the gas and an extension of its term.

Plaintiffs’ grounds for cancellation include :

1) late payment for gas purchased;
2) insufficient consideration and/or lesion ; and
3) Arkla’s failure to disclose material facts about the gas market to plaintiffs.

Plaintiffs seek damages for failure to cancel the agreement and reserve the right to sue for future damages.

Defendant answered admitting the late payment but claiming that it was justifiable and reasonable because a notice of tax levy by the United States Internal Revenue Service was served upon them which possibly affected the interests of one of the sellers and, thereby, Arkla’s payment for gas purchased. Arkla alleged that natural gas reduced to possession is a movable and that lesion beyond moiety does not apply. Defendants further contend that the-agreement was reached after arms length bargaining, plaintiffs being experienced oil and gas operators and the price being comparable to gas prices of other contracts entered into about the same time.

Arkla then filed a motion for summary judgment. In support of that motion, two affidavits were filed. One affidavit, by the senior landman, in charge of the Division Order Section of Arkla, explained the suspension of payment as a result of the tax levy. The other affidavit, by the manager of the gas supply department, described the events surrounding the negotiation and execution of the 1972 amendment to the gas purchase contract.

Plaintiffs filed one counter-affidavit in opposition to defendant’s motion for summary judgment. That affidavit, by Donald Zadeck, a plaintiff and the mortgagee of the leasehold interest and the production attributable thereto, did not dispute the sworn statements presented by plaintiff, but simply stated that those statements do not bear out arms length negotiations for the 1972 amendment.

The trial court granted summary judgment rejecting the demands of plaintiffs. Plaintiffs perfected this appeal.

A motion for summary judgment can only be sustained where “the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966.

The summary judgment remedy is not a substitute for a trial and may not be resorted to when there is a genuine issue of material fact which must be resolved. Wiltz v. Dixie Auto Sales, Inc., 315 So.2d 811 (La.App.3d Cir. 1975). In considering a motion for summary judgment, the court is not to determine the merits of any factual issues raised, it is to determine only whether there is a genuine issue of material fact. Wiltz, supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). The mover bears the burden of convincingly showing the absence of a genuine issue of material fact, the burden being such that all reasonable doubt must be resolved in favor of trial on the merits. Wilts, supra.

The gas purchase agreement provided “payments shall be made not later than the 20th day of each calendar month for production delivered during the preceding month. . . .” It is undisputed that on October 16, 1973, Zadeck and Arkla were served with notice of a tax levy by the United States Internal Revenue Service, informing them of claims possibly affecting Zadeck’s mortgagor’s interest in the payments for the gas. Between October 16 and October 29, Zadeck spoke several times with Arkla’s senior landman, who stated each time that Arkla’s attorneys had not made a final determination on the effect on the production payments of the government action.

On November 1, 1973, Zadeck’s attorney notified Arkla that the contract had been breached and démanded rescission. About November 6, 1973, Arkla mailed payment to Zadeck. Zadeck contends that this payment was not timely since previous payments had been mailed between the 26th and 29th of the month and were generally received around the 30th of the month. There is no dispute as to these facts.

Some delays in payment were expressly authorized according to the terms of the gas purchase contract itself. That contract provided:

“(K) Warranty. . . . Seller further warrants that all such production is delivered free and clear of all liens, encumbrances and adverse claims, including liens to secure payment of taxes. . In the event any adverse claim is asserted, Buyer may retain without interest, as security for the performance of Seller’s obligations hereunder with respect to such claim, any amount of monies then or thereafter payable to Seller.

Under these circumstances, the trial court was correct in concluding from the undisputed facts that there was no delay in payment of the production price sufficient to justify rescission of the contract and in rendering summary judgment in favor of defendant on that ground. The short delay caused by the filing of the tax levy was reasonable and justifiable under the circumstances.

The trial court was also correct in concluding that plaintiffs could not rescind the gas purchase contract on the grounds of lesion beyond moiety. That action is available only to the seller of an immovable estate. See LSA-C.C. arts. 1861, 1862, 2589, 2594. Plaintiffs contend that LSA-R.S. 9:1105, which was in force at the time this contract was consummated, classified this contract as an immovable. We do not agree.

That statute provided as follows:

“Oil, gas, and other mineral leases, and contracts applying to and affecting these leases or the right to reduce oil, gas, or other minerals to possession, together with the rights, privileges, and obligations resulting therefrom, are classified as real rights and incorporeal immovable property.”

The contract between plaintiffs and Arkla is not a mineral lease. While the contract does affect Arkla’s right to take possession of gas from one already in possession, we hold that it does not affect the right to reduce gas to possession within the meaning of R.S. 9:1105. That statutes applies to capturing minerals which are in natural reservoirs and not to transfers of possession of minerals already “reduced to possession.”

Gas which has been reduced to possession certainly falls within the ambit of LSA-C.C. art. 473, which provides:

“Art. 473. Things movable by their nature are such as may be carried from one place to another, whether they move by themselves, as cattle, or can not be removed without an extraneous power, as inanimate things.”

We conclude that gas that has been reduced to possession is a movable and, therefore, lesion beyond moiety is not available to a possessor-vendor, such as the plaintiffs. The trial court was correct in rejecting plaintiffs’ demands with respect to this issue.

We disagree, however, with the trial court’s conclusion that there was no issue of material fact with respect to plaintiffs’ third allegation. Plaintiffs contend that Arkla withheld information about market conditions which would have corrected plaintiffs’ misconception of their position.

That is, in effect, pleading that the contract is invalid for want of plaintiffs’ consent. Article 1819 of the Louisiana Civil Code provides:

“Art. 1819. Consent being the concurrence of intention in two or more persons, with regard to a matter understood by all, reciprocally communicated, and resulting in each party from a free and deliberate exercise of the will, it follows that there is no consent, not only where the intent has not been mutually communicated or implied, as is provided in the preceding paragraph, but also where it has been produced by—
Error;
Fraud;
Violence;
Threats.”

There can be no doubt that the principal cause for plaintiffs’ entering the gas purchase agreement was the promise of fair market value for that gas. Plaintiffs contend that he was in error as to market conditions and that Arkla improperly withheld information relating to those conditions.

Article 1832 of the La.Civil Code provides :

“Art. 1832. In all cases, however, when the information, which would have destroyed the error, has been withheld by the other party to the contract, it comes under the head of fraud, and invalidates the contract.”

As noted above, the court must consider “the pleadings, depositions, and admissions on file, together with the affidavits, if any .” to determine whether there is a “genuine issue as to material fact.” LSA-C.C.P. art. 966.

In examining the interrogatories, we note that Zadeck, in answer to a question propounded by Arkla concerning the withholding of information, stated that he was told by an official of Arkla that the company “would not pay more than 20‡ for gas, yet at the same time, or approximately the same time (February 17, 1972) Arkla entered into a contract with Pennzoil for the intrastate sale of gas in a North Louisiana Field for the price of 26‡ per MCF.” This statement indicates that a question of fact exists as to what Zadeck was told by Arkla to induce the sale of the gas. There is also a question of Zadeck’s knowledge of market conditions existing at the time of the sale.

In light of the strong policy in favor of trial on the merits, we conclude there exists sufficient issue of material fact to remand this case for trial with respect to this issue.

For the foregoing reasons, the judgment of the lower court is reversed and the case is remanded for further proceedings in accordance with law and the views expressed herein. Appellee is to bear costs of this appeal. Assessment of other costs is to await final determination of these proceedings.

REVERSED AND REMANDED.

Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.

On Rehearing

BOLIN, Judge.

Plaintiffs sued Arkansas Louisiana Gas Company (Arkla) to cancel a gas purchasing contract in which plaintiffs agreed to sell gas to defendant. Plaintiffs alleged several grounds for canceling the contract, one of which was that Arkla had failed to disclose material facts about the gas market to plaintiffs at the time the contract was negotiated. After answering, defendant filed a motion for summary judgment to which was attached supporting affidavits. Plaintiffs filed a counter-affidavit by Donald Zadeck. The lower court sustained the motion for summary judgment and dismissed plaintiffs’ suit. Plaintiffs appealed and we reversed and remanded the case for trial upon a finding that there was a material dispute as to whether or not Arkla had withheld special knowledge of the gas market condition from plaintiffs at the time of the negotiation and execution of the gas purchasing agreement. Upon application of Arkla a rehearing was granted. We now affirm the judgment of the trial court.

There is one question on rehearing: Is the determination of whether or not Arkla withheld information about the value of gas a genuine issue of material fact?

Plaintiff-Zadeck stated in answers to interrogatories that he was told by an official of Arkla the company “did not pay more than twenty cents for gas, yet at the same time, or approximately the same time, (February 17, 1972) Arkla entered into a contract with Pennzoil for the intrastate sale of gas in a north Louisiana field for the price of twenty-six cents per MCF.” In our original opinion we held this statement by Zadeck indicated that a question of fact existed as to what Zadeck was told by Arkla to induce the sale of the gas. We further found that the principal cause for plaintiffs entering the gas purchase agreement was the promise of fair market value for that gas. Under these circumstances we found a genuine dispute as to 'whether the contract could be set aside under Louisiana Civil Code Article 1832 which provides:

In all cases, however, when the information, which would have destroyed the error, has been withheld by the other party to the contract, it comes under the head of fraud, and invalidates the contract.

We now conclude our original opinion was erroneous. Louisiana Code of Civil Procedure Article 966 provides that a summary judgment shall be rendered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine factual dispute. To deny a summary judgment there must be a genuine issue of fact and this issue must be material to a proper decision of the case.

Civil Code Article 1847(3) provides:

A false assertion as to the value of that which is the object of the contract, is not such an artifice as will invalidate the agreement, provided the object is of such a nature and is in such a situation that he, who is induced to contract by means of the assertion, might with ordinary attention have detected the falsehood; he shall then be supposed to have been influenced more by his own judgment than the assertion of the other.

A number of Louisiana cases have decided that misrepresentations as to value do not constitute fraud sufficient to set aside a contract. In Wessel v. Union Savings & Loan Ass’n, 198 La. 219, 3 So.2d 594 (1941) it was alleged that plaintiff was induced to sell shares of stock in a savings and loan association by representations in a letter from the association to its stockholders. The letter stated the association had decided to reduce the book value of its stock to $38 per share effective as of a certain date but that prior to that date it would pay $50 per share to any shareholder who desired to sell. Plaintiff alleged she was deceived as to the value of the stock; that she relied on the representations in the letter and as a result thereof she sold her shares to the association for $50 per share whereas in fact the stock had an actual value of between $90 and $100 per share. The court held plaintiff had not stated a cause of action ; that any false statement about the value of the stock could have been determined by “ordinary attention” as provided in C.C. Article 1847. Similar results were reached in the following cases: Succession of Grivaud, 192 La. 181, 187 So. 284 (1939); Davis v. Lacaze, 181 La. 75, 158 So. 626 (1935).

Where the means of ascertaining the value of property are equally available to both parties, a sale may not be set aside because information relating to its value was withheld by either party. Forsman v. Mace, 111 La. 28, 35 So. 372 (1903); La Croix v. Recknagel, 230 La. 842, 89 So.2d 363 (1956); White v. Lamar Realty, Inc., 303 So.2d 598 (La.App. 2d Cir., 1974).

Generally, the reported cases dealing with alleged fraud in contracts of sale are suits brought by purchasers rather than by sellers and the courts tend to impute to the seller a greater knowledge concerning the object of the sale. In this case the sellers of gas produced by them are attempting to set aside a sale of this gas on the ground that the buyer had greater knowledge of its value than the seller.

Plaintiffs were no strangers to the oil and gas business. Zadeck stated he had been engaged in the business for “more than 10 years but less than 20.” The 1972 amendment to the gas purchasing contract which is the subject of this suit was initiated by Zadeck and it substantially increased the price received by Zadeck for his gas. With Zadeck’s background and experience he must be expected to know the value of the gas he was selling. In light of the relative equality of the bargaining position of the parties to the contract, we find no duty on the part of Arkla to reveal market information to the plaintiffs.

In extreme cases in which there existed great disparity of the bargaining position of the parties, our courts have set aside sales. In Griffing v. Atkins, 1 So.2d 445 (La.App. 1st Cir., 1941), an ignorant finder of a ring took it to a jeweler to have it examined. Because of fraud and misrepresentations made by the jeweler, the owner sold the ring to an employee of the jewelry store for approximaetly one-tenth of its value. The sale was set aside because of fraud. There are no extreme circumstances in this case.

We conclude that the determination of whether or not Arkla withheld information about the value of natural gas is not material to the decision of this case. The motion for summary judgment was properly sustained by the lower court.

The judgment is affirmed at appellant s cost.


author: WATSON, Judge. DOMENGEAUX, Judge

text:
    Clair MARCEAUX, Plaintiff-Appellant, v. Wilfred (Lulu) BROUSSARD, Defendant-Appellee.
    No. 5582.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 13, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ refused Jan. 12, 1977.

      Pugh, Buatt, Landry & Pugh by Lawrence G. Pugh, Jr., Crowley, for plaintiff-appellant.
    Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, for defendant-appellee.
    Before MILLER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Clair Marceaux, filed this suit to obtain a servitude of passage across the property of defendant, Wilfred (Lulu) Broussard. Marceaux alleged that his property constitutes an enclosed estate with the shortest passable way to the nearest public road being across the property of defendant Broussard to the north. The trial court concluded that there is an existing right of passage over property to the south and dismissed Marceaux’s suit. Plaintiff Mar-ceaux has appealed, alleging that the trial court erred: in finding an existing servitude of passage to the south based on LSA-C.C. art. 701 and Patin v. Richard, 291 So.2d 879 (La.App. 3 Cir. 1974); and in not granting Marceaux a servitude of passage to the north across the land of defendant Broussard, based on LSA-C.C. art. 699. We affirm.

FACTS

Plaintiff Marceaux’s tract of 63.64 acres was acquired in 1971 by inheritance from his sister, Annette Marceaux. In her will, Annette partitioned a tract of 256 acres between her brothers and sisters and stipulated a right of ingress and egress for the contiguous tracts. The 256 acre tract was originally part of a 512 acre parent tract owned by Cleophas (Clay) Marceaux, the father of Clair and Annette. A 1952 partition between the widow and children of Cleophas (Clay) Marceaux divided the 512 acre tract between two daughters, Annette Marceaux and Jeanne Marceaux, wife of Roy Reese; each received 256 acres. Plaintiff, Clair Marceaux, was also a party to this 1952 partition agreement.

The trial court made the factual finding that Marceaux’s estate is not enclosed because there is a servitude of passage to the south, stating:

“The testimony reveals that down through the years the passage to a public road for the benefit of the northern portion of the 512 acres, has been south down the levee on the west side of the Cameron Canal, then southwesterly along the north bank of the Gueydan Canal to the bridge across the Gueydan Canal, and from there to the public road. This is the route plaintiff used as recently as the crop year of 1975.” (TR. 80)

Joseph Elray Schexneider, stipulated to be an expert surveyor and civil engineer, testified that the most accessible public road to the Clair Marceaux property is 3,067 feet to the north across Broussard’s property. The closest public road is 2,295 feet to the south across the Gueydan Drainage Canal, but use of this route would require building a bridge at a cost of some $22,000.

Frank R. Lyman, stipulated to be an expert civil engineer and surveyor, testified that the route formerly used by Clair Mar-ceaux across the Reese levee and existing bridge to the south is approximately 6300 feet long.

Plaintiff Marceaux testified that the property to the south belongs to his sister, Jeanne Marceaux Reese; that he paid Mr. and Mrs. Reese $500 to pass over this property during the 1975 crop year, but the Reeses have refused to negotiate for further use of this route. Plaintiff Marceaux said his access from the south was cut off by the partition of his father’s property in 1952.

The survey in the partition of 1952 shows the following:

Annette’s will divided her tract (Lot No, 1) into four sections allocated as follows:

ISSUE:

The issue in brief is whether plaintiff Marceaux is entitled to a servitude of passage over defendant Broussard’s land to the north.

CONCLUSION:

Counsel for plaintiff-appellant Clair Marceaux contends that his estate was not enclosed by the 1952 partition because LSA-C.C. art. 699 then provided that an owner with access to a water course was not enclosed, and the Cameron Canal adjoining plaintiff’s property is a water course. The article was amended in 1970 to delete the reference to water courses. However, a water course in the context of LSA-C.C. art. 699 before its amendment, was defined in the case of Inabnet v. Pipes, 241 So.2d 595 (La.App. 2 Cir. 1970):

“. . .to mean a navigable stream or body of water by which ingress and egress might be effected.” 241 So.2d 597.

There is no indication in the record that the Cameron Canal is navigable.

Plaintiff-appellant Marceaux also contends that LSA-C.C. art. 701 is not applicable because he did not acquire his land by partition but by donation mortis causa. This is a strained interpretation. The enclosure resulted from partition even though plaintiff Marceaux’s acquisition was by inheritance from his sister. This is a situation contemplated by LSA-C.C. art. 701. The right of passage is a predial or real servitude due by one estate to another. LSA-C.C. arts. 647 and 653. The Reese estate owes the right of passage to the Marceaux estate. See Brown v. Terry, 103 So.2d 541 (La.App. 1 Cir. 1958) and Picard v. Shaubhut, 324 So.2d 517 (La.App. 1 Cir. 1976); writ not considered, La., 326 So.2d 380. Therefore, Marceaux is not entitled to an additional right of passage across the land of defendant Broussard. The trial court correctly dismissed plaintiff’s suit.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against plaintiff-appellant, Clair Marceaux.

AFFIRMED.

DOMENGEAUX, J., dissents and assigns reasons.

DOMENGEAUX, Judge

(dissenting).

The shortest passage to a public road from plaintiff’s enclosed land is over defendant’s property. In view of the plaintiff’s relationship with the owner of the southern 256 acres, the conclusion of the majority has certain equitable merit. However, ' we may not decide cases on equity when there exists express law on the subject. C.C. Art. 21. The law here is to be applied is C.C. Arts. 699 and 700.

I stated in my dissent in Patin v. Richard, 291 So.2d 879 (La.App. 3rd Cir. 1974):

“In my opinion Civil Code Article 701 is clear and should be read in context with the preceding Articles 699 and 700, all under the subsection of the Code dealing with the servitude of the right of passage and of way which is imposed by law.
Article 699 states that the owner of an enclosed estate may claim the right of passage on the estate of his neighbor(s) to the nearest public road, etc. Article 700 further indicates that the passage theretofore mentioned in Article 699 should generally be taken on the side of the subservient estate where the distance is the shortest from the enclosed estate to the public road, but that nevertheless, it should be fixed in the place least injurious to the owner of the estate owing the servitude.
Article 701, in my opinion, gives a limited exception to this rule that the right of passage is to be suffered by the neighboring estate which affords the shortest and most direct route to a public road. Under Article 701 the subservient landowner is bound to furnish a gratuitous passage, but only when the requisites of the article are met.' First, there must be a landowner, etc. who has sold, etc. a portion of his estate which in so doing encloses that sold portion with no way to a public road. Second, the landowner must have reserved a remaining portion of the land [third] over which a right of passage had before been exercised. See Brown v. Terry, 103 So.2d 541 (La.App. 1st Cir. 1958); Bourg v. Audubon Park Commission for City of New Orleans, 89 So.2d 676 (La.App. Orl. Cir. 1955).”

As in Patín, I respectfully suggest that the pre-requisites for the application of 701 do not exist in this case. The error of the majority in Patín is repeated by the majority herein.

The liberal application of C.C. 701 in Pa-tín and again herein dilutes the true meaning and efficacy of C.C. 699 and 700.

      . LSA-C.C. art. 701:
      “Art. 701. It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor, co-parcener or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude.”

      . LSA-C.C. art. 699:
      “Art. 699. The owner whose estate is enclosed, and who has no way to a public road, railroad, or a tramroad may claim the right of passage on the estate of his neighbor or neighbors to the nearest public road, railroad, or a tramroad and shall have the right to construct a road, railroad or tramroad according to circumstances and as the exigencies of the case may require, over the land of his neighbor or neighbors for the purpose of getting the products of his said enclosed land to such public road or railroad, tramroad or for the cultivation of his estate, but he shall be bound to indemnify his neighbor or neighbors in proportion to the damage he may occasion.”

      . LSA-C.C. art. 647:
      “Art. 647. A real or predial servitude is a charge laid on an estate for the use and utility of another estate belonging to another owner.”

      . LSA-C.C. art. 653:
      “Art. 653. Servitudes being essentially due from one estate to another for the advantage of the latter, they remain the same as long as no change takes place in regard to the two estates, whatever change may take place in the owners.”


author: PETERS, Judge ad hoc.

text:
    The TOWN OF LEESVILLE, Louisiana, Plaintiff-Appellee, v. TELEPROMPTER OF LEESVILLE, INC., Defendant-Appellant.
    No. 5592.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 13, 1976.
    Rehearing Denied Nov. 5, 1976.
    Writ Refused Jan. 12, 1977.

      Tillman & Mitchell by F. Clay Tillman, Jr., Leesville, for defendant-appellant.
    Jack L. Simms, Jr., and Daryl Gold of Simms & Gold, Leesville, for plaintiff-ap-pellee.
    Before MILLER, WATSON and PETERS, JJ.
   PETERS, Judge ad hoc.

This case concerns the correct interpretation to be given an ordinance of the Town of Leesville granting to defendant an exclusive cable television franchise.

The ordinance was enacted by the Town of Leesville on July 1, 1963. Section III of the ordinance provides as follows:

“That Grantee shall pay to the City of Leesville, Louisiana, the amount of Twenty-five and no/100 ($25.00) dollars per year until such time as said Grantee has completed the construction and installation of the operations contemplated hereby; upon completion of operations by the Grantee, the said Grantee shall thereafter pay to the City of Leesville, Louisiana, ten per cent (10%) of the gross monthly rentals received from its operations.”

It appears that when the ordinance was enacted and defendant commenced construction of its facilities, neither party contemplated that defendant’s operations would eventually extend beyond the city limits of Leesville. When defendant later expanded its facilities to serve people living in areas adjoining Leesville, the Town of Leesville expected defendant to pay 10% of all gross receipts from the out-of-town customers. Defendant asserted it was required to pay the 10% fee only on rentals received from customers who were served inside the town limits.

The evidence shows that in the year 1972-1973 (apparently a fiscal year), defendant paid the Town $25,718.99. This amount is 10% of the gross rentals received from all operations, including rentals received from customers outside town. Be-nard Rubin, director of taxes for defendant’s parent company, testified defendant intended to pay the 10% fee only on rentals received from Leesville customers and the excess was paid in error. Accordingly, for the 1973-1974 year, defendant computed the amount it owed by considering only revenues derived from Leesville customers and defendant then deducted the amount it felt it had overpaid the previous year. Defendant thus paid only $12,667.03. The Town of Leesville contends that in both years the amount owed was 10% of the gross rentals received from all operations, whether the customers lived in Leesville or outside of town, and therefore defendant should have paid 10% of $294,994.75, or $29,-499.48. The Town of Leesville sued defendant demanding $16,832.45, the difference between what was paid and what the town contends was owed.

The lower court rendered judgment for the Town of Leesville for $16,832.45, the amount prayed for. The lower court reasoned that the rentals from out-of-town customers were a direct result of the privileges granted to defendant by the franchise ordinance, for the homes of out-of-town customers were linked directly to the cables, master antenna, and amplification station which had been located in Leesville by virtue of the franchise ordinance. Because we find this reasoning persuasive, we affirm.

We are not presented with the question whether defendant would be obligated to pay a franchise fee on rentals received from operations which have no connexity with the rights and privileges granted by the franchise ordinance. In the instant case, all rentals received by defendant, whether from within or without the Town of Leesville, are attributable to defendant’s exercise of the rights granted by the franchise ordinance. We find the parties intended that defendant would pay 10% of the gross revenues derived from its use of the rights granted by the franchise. The reasonable conclusion under these circumstances is that defendant is obligated by Section III of the franchise ordinance to pay 10% of the gross monthly rentals received from all operations.

Defendant contends that such a construction of the ordinance will allow the Town of Leesville to exercise powers greater than those allowed by R.S. 33:401(11). That section provides that a municipality may grant a franchise for the erection, maintenance, and operation of poles, wires, and appurtenances for telephone, telegraph, and electric transmission and distribution systems along and upon the streets, alleys, public ways and places of the municipality. We cannot see that the town has exceeded its authority under this provision. The rights it has granted for the construction and operation of the cable system are restricted to the geographical confines of the town, and the franchise fees it desires to collect are attributable to the grant of those rights.

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

Affirmed.

WATSON, J., concurs in result.