author: SANDERS, Chief Justice. TATE, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Lyonetta LEWIS.
    No. 58573.
    Supreme Court of Louisiana.
    March 7, 1977.

      Lionel R. Collins, Philip E. O’Neill, Ken-ner, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Robert L. Simmons, Asst. Dist. Atty., for plaintiff-respondent.
   SANDERS, Chief Justice.

The State charged Lyonetta Lewis with prostitution in violation of LSA-R.S. 14:82. After trial, the judge found defendant guilty. The court placed defendant on five months inactive probation with special conditions and suspended defendant’s thirty day sentence. In addition, the court fined Lyonetta Lewis $100 plus $60 court costs.

From this conviction and sentence defendant applied to this Court for writs of certiorari. We granted writs. La., 340 So.2d 818 (1977).

The single issue presented is whether the trial court erred in denying defendant’s motion for a directed verdict of acquittal based on the State’s failure to prove two essential elements of the crime charged: that defendant is a female, and that defendant engaged in an act of sexual intercourse.

The evidence discloses that on May 6, 1976, a plainclothesman, Officer Wayne Thomas of the New Orleans Police Department, was approached by a white male as he stood in front of a bar located in the French Quarter. Officer Thomas conversed with the man, later identified as Eugene Collins. Almost immediately thereafter, Lyonetta Lewis exited from an automobile driven by James Lewis. Lyonetta Lewis, Eugene Collins, and Officer Thomas then arranged for a “prostitution date” at a designated hotel. Officer Thomas testified that Lyonetta Lewis stated that for $20 whatever is usually done on a prostitution date, or more specifically, whatever Thomas wanted done within thirty minutes would be done. The three concluded the arrangements and proceeded toward the hotel. On the way to the hotel, Collins stated that if Thomas was a police officer there would be trouble. Consequently, the officer decided to identify himself as a police officer. At this point, a scuffle ensued between Thomas and Collins. Lyonetta Lewis fled but was caught and arrested by Lieutenant Evans Reinhard.

Defendant asserts that the State failed to prove two essential elements, to-wit: that defendant is a female and that defendant actually engaged in sexual intercourse.

When the defense alleges that the trial judge erred in denying a motion for a directed verdict of acquittal, this Court will overturn the conviction only if there is no evidence of an essential element of the crime. State v. Smith, La., 332 So.2d 773 (1976); State v. Butler, La., 331 So.2d 425 (1976); State v. Kaufman, La., 331 So.2d 16 (1976).

LSA-R.S. 14:82 defines prostitution as “the practice by a female of indiscriminate sexual intercourse with males for compensation.” (Emphasis added.)

Defendant properly notes that the crime can be committed only by a female. See State v. Devall, La., 302 So.2d 909 (1974). After a complete review of the record, we conclude that it contains evidence that Lyonetta Lewis is a female.

In State v. Bourg, 248 La. 844, 182 So.2d 510, cert, denied, 385 U.S. 866, 87 S.Ct. 127, 17 L.Ed.2d 93 (1966), this Court rejected defendant’s second contention. We held:

“By the language of R.S. 14:82 prostitution is defined as ‘the practice’ by a female of indiscriminate sexual intercourse. R.S. 84(4), in defining pandering, refers to a female ‘engaged’ in prostitution. These articles denounce the practice of prostitution. Neither article requires proof of a specific act of sexual intercourse as defendant contends. Thus, offering one’s self for intercourse for hire is the practice of prostitution.”

Later we reconsidered the issue in State v. Butler, La., 331 So.2d 425 (1976). Therein the majority of this Court opined that the State need not offer proof of an act of sexual intercourse.

The term “prostitution” is not a technical one. 73 C.J.S. Prostitution § 1, p. 224. The gravamen of the offense is the practice ... of indiscriminate sexual intercourse with males for compensation. Hence, evidence of an offer of sexual intercourse for pay may prove the offense. No act of sexual intercourse is required for proof of prostitution. See Parish of St. Landry Ex Rel. Goudeau v. Veillon, La.App., 308 So.2d 830 (3rd Cir. 1975); Hubert v. Claiborne Realty Company, La.App., 78 So.2d 249 (Orl. Cir. 1955); See also State v. Davis, 158 La. 21, 103 So. 391 (1925).

The record reflects that Lyonetta Lewis offered to have sexual intercourse for pay under the circumstances described. Hence, there is some evidence of prostitution. Accordingly, we will maintain the conviction.

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

TATE and CALOGERO,'JJ., dissent and assign reasons.

TATE, Justice,

dissenting.

The defendant was convicted of a violation of La.R.S. 14:82 providing criminal penalties for prostitution. The statute defines the crime as follows: “Prostitution is the practice by a female of indiscriminate sexual intercourse with males for compensation.” (Italics mine.)

In the first place, applying the strict construction required of criminal statutes, the crime is not committed unless the female actually commits sexual intercourse. State v. Butler, 331 So.2d 425 (La.1976). As that decision notes, this is the usual construction afforded statutes similar to Louisiana’s, unlike those statutes which punish soliciting for the purpose of engaging in intercourse for pay.

In the second place, the present evidence is only that the accused negotiated for a later sexual date. No money actually changed hands, nor did the parties actually take any concrete steps, such as entering a hotel room together, to effectuate the date.

Negotiations with a single man for sex, not cumulating in any act demonstrating a clear intention to complete the sexual bargain, is no evidence at all, in my opinion, of “the practice by a female of indiscriminate sexual intercourse with males for compensation” (i. e., even if we accept the majority’s interpretation that the practice of prostitution may be committed without actual coitus).

Is the crime committed without more, for instance, if a man asks a girl to have sex with him after he pays for her dinner (i. e., takes her to dinner), and she nods yes? Is a mere verbal agreement, not fulfilled and possibly not intended to be fulfilled, the “practice” of prostitution?

Again, under our statutory definition— “the practice ... of indiscriminate sexual intercourse with males” — , do sexual relations by a female with a single male meet the statutory definition? Is the crime committed, for instance by a one-man woman because her apartment is paid for by her lover?

Under the majority’s interpretation of the statute, and its acceptance of the present evidence as proving a violation of it, in my opinion we have broadly construed this criminal statute and its ambit, contrary to the settled principle that criminal statutes must be strictly construed.

I therefore respectfully dissent.

CALOGERO, Justice,

dissenting.

I believe that La.R.S. 14:82 requires proof of a specific act of sexual intercourse, not merely the offer of such an act, when it makes criminal “the practice by a female of indiscriminate sexual intercourse with males for compensation.” See my opinion in State v. Butler, 331 So.2d 425 (La.1976). Moreover, I dissent because the state introduced no evidence at all that defendant herein is a woman. Although the majority opinion relies upon references by witnesses who employed feminine designations, we have not before resorted to such evidence so as to supply an essential and otherwise unproved element of ah offense. In these days when some persons engaging in illicit sexual behavior for pay who, although they are genetically males, dress as women and refer to themselves by feminine names, I do not believe that a witness’ reference to a person as a “lady” or by a feminine pronoun supplies any proof at all that the person is a woman. Nor can I believe that such references by defense counsel, statements never heretofore considered by this Court as part of the evidence in a case, supply any part of the state’s burden of proof. In order for the state’s case to withstand a motion for directed verdict, it must have introduced some evidence of each essential element of the crime. C.Cr.P. art. 778; State v. O’Neal, 328 So.2d 100 (La.1976); State v. Cloud, 319 So.2d 793 (La.1975); State v. Evans, 317 So.2d 168 (La.1975). In a prosecution for the crime of prostitution, one essential element is that the defendant be a woman. State v. Devall, 302 So.2d 909 (La.1974). Because the state introduced no .evidence that defendant Lewis is a woman, I believe the trial judge erred in overturning defendant’s motion for a directed verdict.

Consequently, for these two reasons, I dissent from the majority opinion.

      . The witnesses, Officer Wayne Thomas and Lieutenant Evans Reinhard, as well as defense counsel, referred to defendant as a female .person innumerable times. They constantly employed the pronouns “her” and “she” connoting female gender. See, for example: p. 7, lines 2, 7, and 10; p. 3, lines 15, 17, and 18; p. 15, line 7.
      Lieutenant Reinhard. as well as defense counsel, referred to defendant as “Miss Lewis.” See, for example: p. 13, lines 2, 4, 7, and 25.
      Lyonetta Lewis was characterized as “the lady.” See, for example: p. 6, line 22; p. 7, lines 2, 18, 16, and 19; p. 14, lines 17 and 18.

      . Justice Calogero authored the majority opinion, which stated that LSA-R.S. 14:82 required proof of a specific act of sexual intercourse. However, as reflected in the separate opinions, the author of this opinion and Justice Summers, Dixon, and Marcus adhered to the view that proof of an offer of coitus for pay is some evidence of the practice of prostitution.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Michael D. TERRELL.
    No. 58701.
    Supreme Court of Louisiana.
    March 9, 1977.
    Rehearing Denied April 7, 1977.
    Jack N. Rogers, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard E. Chaffin, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John Henry LEE.
    No. 58700.
    Supreme Court of Louisiana.
    March 18, 1977.
    Rehearing Denied April 7, 1977.

      Frank L. Koles, III, L. B. Ponder, Jr., Ponder & Ponder, Amite, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., William M. Quin, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The defendant was convicted of distribution of marijuana, La.R.S. 40:966 A, and sentenced to nine years at hard labor. We find no factual or legal merit to the seven specifications of error made by his brief:

1. The alleged delay in allowing the appeal does not constitute the denial of speedy-trial rights. See State v. Lane, 302 So.2d 800 (La.1974).

2. Counsel for the defendant was held in contempt in a hearing outside the presence of the jury, because of his defamatory characterization of a state witness. The record does not reflect that thereby the defendant was denied the right to counsel nor the right to effective cross-examination.

3. We are unable to understand counsel’s contention that the present conviction should be reversed because of a revocation of his probation from a sentence for a prior crime. Additionally, outside of argument by brief, the record itself does not reflect such revocation, nor is any such contention raised by any assignment of error filed in the trial court. See footnote 1.

4. The trial court did not abuse its discretion in denying a new trial sought on the basis of alleged newly discovered evidence that the accused could not have committed the offense because he was at work on that date. La.C.Cr.P. art. 851(3). Aside from the cumulative nature of the evidence offered and the lack of sufficient showing that it would have affected the verdict, the showing made does not demonstrate, as required, an inability to have discovered the “new” evidence by the exercise of reasonable diligence before or during the trial itself. La.C.Cr.P. art. 854.

5. The defendant contends that the state did not adequately prove the chain of custody of the marijuana purchased by the testifying state trooper from the accused. The preponderance of the evidence sufficiently proves that the evidence presented at the trial is that which is connected with the case, since no circumstances aré shown which cast doubt on this connexity. State v. Marcell, 320 So.2d 195 (La.1975); State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

6. In the absence of objection at the time the charge was given, the defendant’s complaint that the charge to the jury was confusing does not present an issue reviewable on the appeal. See La.C.Cr.P. art. 841.

7. No impropriety is shown by the state’s cross-examination of the defendant as to where he was on other specified dates, for the purpose of casting doubt upon the accuracy of his memory of precisely where he was on the date of the offense.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

      . We pretermit whether all of these errors are actually within the scope of the four assignments of error formally designated (Tr. 16) to the trial court. La.C.Cr.P. art. 844 (1974). Except for patent error, only such formally designated assignments may be reviewed on appeal. La.C.Cr.P. art. 920 (1974).

      . Three witnesses had testified to this same effect at the trial, and the motion is based upon an allegation that two of these could more specifically prove their own trial testimony.

      . After the purchase, the marijuana was sealed into an envelope identified by the officer’s handwriting, and the testifying criminologist at the state police laboratory identified the marijuana he analyzed as that taken from the envelope so identified.

      . The defendant’s chief defense is that he was at work on the date of the offense and therefore could not have committed it.


text:
    STATE of Louisiana v. Abner Roy LYNCH.
    No. 58779.
    Supreme Court of Louisiana.
    March 18, 1977.
    James B. Supple, Robertson, Supple & Vercher, Morgan City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Bernard E. Boudreaux, Jr., Walter J. Senette, Jr., Asst. Dist. At-tys., for plaintiff-appellee.
   PER CURIAM.

The defendant was convicted of simple burglary, La.R.S. 14:62, and sentenced, as a second offender, La.R.S. 15:529.1, to eighteen years at hard labor. We find no legal or factual merit to the five assignments of error perfected by him and relied upon in his appeal:

Assignments 1 and 2: The trial court denied the defendant’s motion to suppress certain oral inculpatory statements made by him at the time of his arrest. The trial court reasonably accepted, as preponderating over the defendant’s contrary version, the testimony of the two police officers that the statements were made freely and voluntarily and after proper explanation to the defendant of his Miranda rights.

Assignment 3: In the absence of objection at the time, La.C.Cr.P. art. 841, no reviewable issue is raised by the contention that the officer was allowed to testify concerning the defendant’s exercise of his non-incrimination rights, contrary to Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and State v. Smith, 336 So.2d 867 (La.1976) (even assuming the colloquy as to the location of the burglary tools could be interpreted as such inadmissible testimony).

Assignment 4: Abandoned on appeal.

Assignments 5 and 6: The proof that the defendant is second offender meets the required standards: The penitentiary records are properly authenticated by the certificate of their custodian, La.R.S. 15:529.1, and the accused by fingerprint evidence is identified as the person therein described.

The present burglary offense was committed on June 23, 1974. It was within the requisite five years of “the expiration of the maximum sentence, or sentences, of the previous conviction,” La.R.S. 15:529.1 C:

The defendant was released from the penitentiary on September 12, 1972, at the expiration of a sentence received December 7,1965 after a counselled plea of guilty to a felony (conspiracy to commit extortion). The two year sentence then received was made consecutive to a 10-year sentence received for an armed robbery of which convicted in 1964.

Under the showing made, this consecutive sentence for the extortion conviction did not expire until 1972, thus within five years of the commission of the present burglary offense.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: TATE, J.,

text:
    Walter J. HARRISON et al. v. Augustine ALOMBRO et al.
    No. 59427.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Adelle Alombro et al. applying for certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1165, First Circuit, Parish of Lafourche.

Writ denied. The result is correct.

TATE, J.,

is of the opinion that the writ should be granted to clarify that the action to remove a cloud on title is no longer applicable under the Code of Civil Procedure of 1960, which broadened the petition and possessory actions so as to include a comprehensive and coherent proceeding to decide land claims such as the present. See also La.C.Civ.P. art. 3654 to the same effect, with regard to declaratory judgments and other actions affecting ownership of real rights.

CALOGERO and DENNIS, JJ., are of the opinion the writ should be granted.


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

text:
    STATE of Louisiana v. Glendel Ray SONES.
    No. 59586.
    Supreme Court of Louisiana.
    March 29, 1977.
   In re: State of Louisiana, applying for writs of certiorari, mandamus and prohibition, and Stay Order.

Writ denied. No abuse of discretion on the showing made.

SANDERS, C. J.,

is of the opinion that a writ should be granted.

SUMMERS, J.,

is of the opinion that the ruling of the trial judge is plainly erroneous and the mistrial was improperly granted.

DIXON, J.,

is of the opinion that the application cannot be construed to hold that the ruling of the trial court is erroneous.


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

text:
    SOUTH CENTRAL BELL TELEPHONE CO. v. Maurice WESTRIDGE et al.
    No. 59439.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Maurice Westridge applying for certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1260, Fourth Circuit, Parish of Orleans.

Granted; ruling of court of appeal reversed. C.C.P. 5125; appeal reinstated and, treating the bond as one found to be invalid for lack of a surety, although signed by appellant, the court of appeal shall allow relator-appellant four days to furnish a new bond with a surety. C.C.P. 5124.

SANDERS, C. J.,

dissents from granting of the writ. Upon the failure of the appellant to furnish security within the fixed delay, the judgment of the trial court became final. LSA-C.C.P. art. 2087, 2088.

SUMMERS, J.,

dissents from this ex parte reversal of a final judgment without a hearing thus depriving the holder of that judgment of due process of law.

MARCUS, J.,

dissents from the granting of this writ. Judgment of court of appeal is correct.


text:
    James J. GRAHAM, Jr. v. ALLIED CHEMICAL CORP. et al.
    No. 59433.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Aetna Casualty & Surety Company, Intervenor applying for certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1196, First Circuit, Parish of East Baton Rouge.

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

DIXON, J., dissents from denial.


author: DIXON and DENNIS, JJ.,

text:
    P. &. S. RICE MILLS, INC. v. Clifford M. FONTENOT. Clifford M. FONTENOT v. P. &. S. RICE MILLS, INC.
    No. 59445.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: P. &. S. Rice Mills, Inc., applying for remedial writs of certiorari, prohibition, mandamus, or for supervisory writs.

Writ refused. The judgment is not final and this court will not interfere with the orderly proceedings in the trial court.

DIXON and DENNIS, JJ.,

are of the opinion the writ should be granted for the reason that the exception of prematurity should have been decided (instead of referred to merits) (C.C.P. 929) and sustained.

CALOGERO, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana ex rel. Joseph V. FOSTER, Jr. v. STATE of Louisiana Through the DEPARTMENT OF CORRECTIONS through Mr. C. Paul Phelps, Director, L. C. D.
    No. 59571.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Joseph V. Foster, Jr. applying for writ of certiorari.

Writ denied. This matter is properly ap-pealable to the Court of Appeal, since it is a suit for damages in tort.

SUMMERS, J., is of the opinion the petition does not involve a cause of action and should be denied at this time.


author: SUMMERS, J.,

text:
    Frank L. THORNTON et al. v. Sharon MORAN et al. Sharon MORAN v. Frank L. THORNTON et al.
    No. 59467.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Frank L. Thornton and Government Employees Insurance Company applying for Certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1136, First Circuit, Parish of East Baton Rouge.

Writ granted. Judgment of court of appeal reversed; case remanded to court of appeal to resolve the differences in the factual findings between the jury and the judge in these consolidated cases and to render a single opinion based upon the record. La.Const. art. 5, § 10(B). Rights of parties to reapply for writs in accordance with law after court of appeal renders decision in accordance with views herein expressed are reserved.

SUMMERS, J.,

dissents from this ex parte in chambers reversal of the judgment of the court of appeal without a hearing and opportunity for the parties to be heard.

CALOGERO and DENNIS, JJ., are of the opinion the writ should be granted and the case taken up in this Court in the normal course, with oral arguments followed by written opinion.


text:
    Frank L. THORNTON et al. v. Sharon MORAN et al. Sharon MORAN v. Frank L. THORNTON et al.
    No. 59488.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Government Employees Insurance Company, applying for Certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1136, First Circuit, Parish of East Baton Rouge.

Writ granted. Judgment of court of appeal reversed; case remanded to court of appeal to resolve the difference in the factual findings between the jury and the judge in these, consolidated cases and to render a single opinion based upon the record. La.Const. Art. 5, § 10(B); Rights of parties to reapply for writs in accordance with law after court of appeal renders decision in accordance with views herein expressed are reserved.

SUMMERS, J.,

dissents from this ex parte in chambers reversal of the judgment of the Court of Appeal without a hearing and opportunity for the parties to be heard.

CALOGERO and DENNIS, JJ., are of the opinion the writ should be granted and the case taken up in this Court in the normal course, with oral arguments followed by written opinion.


text:
    Frank L. THORNTON et al. v. Sharon MORAN et al. Sharon MORAN v. Frank L. THORNTON et al.
    No. 59489.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Frank L. Thornton and Myrtis Thornton applying for certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1136, First Circuit, Parish of East Baton Rouge.

Writ granted. Judgment of court of appeal reversed; case remanded to court of appeal to resolve the differences in the factual findings between the jury and the judge in these consolidated cases and to render a single opinion based upon the record. La.Const. art. 5, § 10(B); Rights of parties to reapply for writs in accordance with law after court of appeal renders decision in accordance with views herein expressed are reserved.

SUMMERS, J.,

dissents from this ex parte in chambers reversal of the judgment of the court of appeal without a hearing and opportunity for the parties to be heard.

CALOGERO and DENNIS, JJ., are of the opinion the writ should be granted and the case taken up in this court in the normal course, with oral arguments followed by written opinion.


text:
    Frank L. THORNTON et al. v. Sharon MORAN et al. Sharon MORAN v. Frank L. THORNTON et al.
    No. 59490.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Frank L. Thornton applying for certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1136, First Circuit, Parish of East Baton Rouge.

Writ granted. Judgment of court of appeal reversed; case remanded to court of appeal to resolve the differences in the factual findings between the jury and the judge in these consolidated cases and to render a single opinion based upon the record. La.Const. art. 5, § 10(B); Rights of parties to reapply for writs in accordance with law after court of appeal renders decision in accordance with views herein expressed are reserved.

SUMMERS, J.,

dissents from this ex parte in chambers reversal of the judgment of the court of appeal without a hearing and opportunity for the parties to be heard.

CALOGERO and DENNIS, JJ., are of the opinion the writ should be granted and the case taken up in this court as in the normal course, with oral arguments followed by written opinion.


text:
    Herbert KOPPENOL et al. v. ST. TAMMANY PARISH HOSPITAL et al.
    No. 59470.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Herbert Koppenol et al. applying for certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1242, First Circuit, Parish of St. Tammany.

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

DIXON, J., concurs in the denial.


author: TATE, J., DIXON, J.,

text:
    Felix CERNA, Jr. v. Norval J. RHODES et al.
    No. 59471.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Felix Cerna, Jr., applying for Cer-tiorari, or writ of review, to the Court of Appeal, 341 So.2d 1157, First Circuit, Parish of Terrebonne.

Writ denied. The result is correct.

TATE, J.,

is of the opinion the result is correct as to the prosecutor because of his prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 990-92, 47 L.Ed.2d 128 (1976).

DIXON, J.,

dissents, believing the result in the court below is in error and the writ should be granted.

CALOGERO, J., is of the opinion the writ should be granted.

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


text:
    Rev. Aubrey Denson FOSTER et al. v. Billy R. MARSHALL et al.
    No. 59504.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Scott Truck & Tractor Co. of Winnsboro, Inc., applying for Certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1354, Second Circuit, Parish of Ten-sas.

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

DENNIS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Kenneth D. BURTON.
    No. 59548.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Kenneth D. Burton applying for writs of certiorari, mandamus and prohibition.

Not considered. Not timely filed.

TATE, J.,

dissents. The application was filed here within the delay fixed by the trial court’s order of March 17. I can find no reasonable authority for the majority’s apparent construction that the trial court was without jurisdiction to grant this extension because the delay fixed by the original order of February 24 had expired on March 7. No ruling definitively fixing the rights of the parties being involved, the trial court had as much jurisdiction to grant the new delay as it possessed to grant the original. Although there is an adequate remedy by appeal in the event of conviction, this important threshold issue affecting many other prosecutions should preferably be determined at this time.

DIXON, J.,

concurs in the majority construction of our rules. The application is late because the time for filing writs was extended by the trial court after the expiration of the delay for filing previously fixed. However, our rules and jurisprudence are silent, in a case like this one, on the question whether the defendant might give a new motion of intent to apply, after the first delay has expired, and obtain a new return date in which he might timely file writs on the same matter.


author: DIXON, J.,

text:
    Francis DUFRENE v. Anthony GUARINO et al.
    No. 59495.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Jean Adams Jordan et al, Mrs. Ruth Bailey, et al. (and other appellants by plaintiffs’ trial committee) applying for Certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1102, Fourth Circuit, Parish of Orleans.

Writ denied. The result is correct.

DIXON, J.,

dissents from the denial being of the opinion the petition states a cause of action.

CALOGERO, J., would grant the writ.

DENNIS, J., is of the opinion the writ should be granted.


text:
    Francis DUFRENE v. Anthony GUARINO et al.
    No. 59531.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Robert Warren et al. applying for Certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1103, Fourth Circuit, Parish of Orleans.

Writ denied. The result is correct.

DIXON, J., dissents.

CALOGERO, J., would grant the writ.

DENNIS, J., would grant the writ.


text:
    Francis DUFRENE v. Anthony GUARINO et al.
    No. 59532.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Francis Dufrene applying for cer-tiorari, or writ of review, to the Court of Appeal, 343 So.2d 1097, Fourth Circuit, Parish of Orleans.

Writ denied. The result is correct.

DIXON, J., dissents.

CALOGERO, J., would grant the writ.

DENNIS, J., would grant the writ.


text:
    Francis DUFRENE v. Anthony GUARINO et al.
    No. 59534.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Mrs. James Jones, etc., et al. applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1109, Fourth Circuit, Parish of Orleans.

Writ denied. The result is correct.

DIXON, J., dissents.

CALOGERO, J., would grant the writ.

DENNIS, J., would grant the writ.


text:
    Mrs. Bennie H. SCHATZ and John M. Hambrick v. Anthony GUARINO et al.
    No. 59508.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Mrs. Bennie H. Schatz and John M. Hambrick applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1111, Fourth Circuit, Parish of Orleans.

Writ denied. The result is correct.

DIXON, J., dissents.

CALOGERO, J., would grant the writ.

DENNIS, J., would grant the writ.


text:
    Mrs. Jane A. GOLDING et al. v. OREGON AUTOMOBILE INSURANCE CO. et al.
    No. 59509.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Mrs. Jane A. Golding et al. applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1103, Fourth Circuit, Parish of Orleans.

Writ denied. The result is correct.

DIXON, J., dissents.

CALOGERO, J., would grant the writ.

DENNIS, J., would grant the writ.


text:
    Beatrice McKuhen BURKE v. Anthony GUARINO et al.
    No. 59518.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Beatrice McKuhen Burke applying for Certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1105, Fourth Circuit, Parish of Orleans.

Writ denied. The result is correct.

DIXON, J., dissents.

CALOGERO, J., would grant the writ.

DENNIS, J., is of opinion the writ should be granted.


text:
    Helen Woodworth BETTIS on Behalf of Kenny Dean Stratton et al. v. Anthony GUARINO and Florence Guarino et al.
    No. 59520.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Helen Woodworth Bettis et al. applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ denied. The result is correct.

DIXON, J., dissents.

CALOGERO, J., would grant the writ.

DENNIS, J., would grant the writ.


text:
    Beatrice MOYER, on Behalf of Glen Richard Green, et al. v. Anthony GUARINO and Florence Guarino et al.
    No. 59519.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Beatrice Moyer, etc., et al. applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ denied. The result is correct.

DIXON, J., dissents.

CALOGERO, J., would grant the writ.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Louis J. NELSON and Edwine E. Guillot.
    No. 59573.
    Supreme Court of Louisiana.
    March 25, 1977.
   In re: Louis J. Nelson and Edwine J. Guillot applying for supervisory writs and stay order.

Application denied; there is an adequate remedy by appeal in the event of conviction; in the absence of clear error, we are reluctant to interfere with the orderly process of the court below.


text:
    Ronald Joseph SAVOIE v. Anita M. Ordoyne Savoie CURTIS.
    No. 59582.
    Supreme Court of Louisiana.
    March 29, 1977.
   In re: Ronald Joseph Savoie applying for supervisory writs and stay order.

Writ denied. There is no showing of abuse of discretion by the trial judge.


text:
    STATE of Louisiana ex rel. Calvin David MEYERS v. C. Murray HENDERSON et al.
    No. 58324.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Calvin David Meyers applying for writ of certiorari, prohibition and mandamus.

Based upon the trial judge’s findings from the evidentiary hearing, the guilty plea is set aside and the case is remanded for further proceedings, including trial or other appropriate procedure.


text:
    Robert H. BAGGERT v. STATE of Louisiana.
    No. 59380.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Robert H. Baggert applying for supervisory writs.

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 John S. Covington, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 13th day of April, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 24th day of June, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Mary Rebecca HEMPHILL v. Elaine STRAIN et al.
    No. 59425.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Mary Rebecca Hemphill and Rose Billiot applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany. 341 So.2d 1186.

Application denied; no error of law in the court of appeal judgment.


text:
    Robert V. WHITTAKER v. VETSHER, INC. and Century National Bank of New Orleans.
    No. 59435.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Robert V. Whittaker, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 342 So.2d 256.

Writ denied. We find no merit in plaintiff’s application to this court for writs.


text:
    Carrol MATHERNE v. Estate of Lee J. MATHERNE. Carrol MATHERNE v. Joyce Dupre MATHERNE, etc. et al.
    No. 59447.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Carrol Matherne applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne. 341 So .2d 1254.

Writ denied. The result is correct.


text:
    STATE of Louisiana v. Daniel JOHNSON.
    No. 59453.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Daniel Johnson applying for writ of review.

Not considered: The relator pleaded guilty on October 20, 1976. The matters complained of, which occurred before the plea of guilty, do not appear to raise an issue for post-conviction relief. Nevertheless, this court does not ordinarily consider claims which are as here presented to this court without first affording the trial court an opportunity to pass upon them.


text:
    George STEWART and Geneva Stewart v. NATIONAL FOOD STORES OF LA., INC.
    No. 59456.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: National Food Stores of La., Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne. 341 So.2d 1177.

Writ denied. On the facts found by courts below, the result is correct.


text:
    Zebe FLUKER v. WOOTEN INTERNATIONAL ENTERPRISES, INC., et al.
    No. 59460.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Wooten International Enterprises, Inc. et al. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 342 So.2d 261.

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


text:
    James J. GRAHAM, Jr. v. ALLIED CHEMICAL CORP. et al.
    No. 59497.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: James J. Graham, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 341 So.2d 1196.

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

DIXON, J., dissents from denial.


text:
    Milton COX, Jr., et al. v. ST. JOHN the BAPTIST PARISH BOARD OF SUPERVISORS OF ELECTIONS et al.
    No. 59528.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: Francis X. Champagne applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist.

Writ refused. No merit in application.


text:
    STATE of Louisiana v. James WILSON, Jr.
    No. 59584.
    Supreme Court of Louisiana.
    March 30, 1977.
   In re: James Wilson, Jr., applying for writs of certiorari, mandamus, prohibition and stay order.

Not considered; not timely filed. There is also an adequate remedy by appeal.


text:
    STATE of Louisiana v. Willard CARLOCK, Sr.
    No. 59553.
    Supreme Court of Louisiana.
    March 31, 1977.
   In re: Willard Carlock, Sr., applying for writs of certiorari, prohibition, mandamus and for a stay order.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Warren E. Hood, Jr.. Judge of the Fourteenth Judicial District . Court for the Parish of Calcasieu, to transmit to the Supreme Court of Louisiana, as quickly as possible, 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 18th day of April . 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Donald James MASHBURN, d/b/a Maison de Mashburn v. Richard H. COLLIN, et al.
    No. 59466.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Richard H. Collin, et al, applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipa-hoa. 341 So.2d 1236.

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 council for plaintiff and defendant be notified.


text:
    Ivory BOATNER v. McCRORY CORP. et al.
    No. 59464.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Ivory Boatner, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 341 So.2d 1174.

Application denied; No error of law in the Court of Appeal judgment.


text:
    LENT, INC. v. LEMEL STEEL FABRICATORS, INC.
    No. 59465.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Lent, Inc., and Arman V. Melikyan applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 340 So.2d 1035.

Writ denied. No error of law.


text:
    Jake MAUS, Administrator of the Estate of his minor son, Christopher Lee Maus v. Vesta M. SCHOUEST.
    No. 59469.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Jake Maus, Administrator of the Estate of his minor son, Christopher Lee Maus applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist. 342 So.2d 715.

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


text:
    Jasper K. WRIGHT, Jr., Testamentary Executor of the Succession of Jasper K. Wright v. DEPARTMENT OF HIGHWAYS of the State of Louisiana.
    No. 59472.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: State of La. through the Department of Highways, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit Parish of Terrebonne. 342 So.2d 230.

Writ denied. No error in the Court of Appeal judgment.


text:
    Jack J. LOWE v. ST. TAMMANY PARISH SCHOOL BOARD et al.
    No. 59475.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Jack J. Lowe, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Tammany. 341 So.2d 1151.

Writ denied. On the facts-found by the Court below, the result is correct.


text:
    ALLSTATE INSURANCE COMPANY v. Anderson TOLIVER.
    No. 59476.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Anderson Toliver applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 341 So.2d 1156.

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


text:
    LOUISIANA TELEVISION BROADCASTING CORP. et al. v. TOTAL C.A.T.V.
    No. 59485.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Louisiana Television Broadcasting, Guaranty Broadcasting Corp. and Rush Broadcasting Corp., applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 341 So.2d 1183.

Writ refused. No error of law.


text:
    QUICKICK, INC. v. QUICKICK INTERNATIONAL.
    No. 59487.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Bud Adams Enterprises, Inc. (formerly ADA Oil Co.) and Quickick International, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 341 So.2d 1313.

Writ denied: No error in the result.


text:
    Oleus TEMPLET, Jr., et al. v. GOODYEAR TIRE AND RUBBER CO., INC., et al.
    No. 59491.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: American Employers’ Insurance Co. applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of Assumption. 341 So.2d 1248.

Writ denied. Judgment not final.


text:
    Robert GALES v. GREAT ATLANTIC AND PACIFIC TEA COMPANY.
    No. 59492.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Great Atlantic and Pacific Tea Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 342 So.2d 241.

Writ denied. On the facts found by the courts below, the result is correct.


text:
    Clyde J. WELCKER v. Beulah E. LITTLE, wife of Clyde J. Welcker.
    No. 59493.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Clyde J. Welcker applying for certiorari, of writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 342 So.2d 251.

Writ denied. There has been no showing of irreparable injury so as to warrant issuance of an injunction.


text:
    Reverend Aubrey Denson FOSTER, Individually, et al. v. Billy R. MARSHALL et al.
    No. 59494.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Reverend Aubrey Denson Foster, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Tensas. 341 So.2d 1354.

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


text:
    Ted V. MICHEL v. DEPARTMENT OF PUBLIC SAFETY, ALCOHOLIC BEVERAGE CONTROL BD.
    No. 59496.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Ted V. Michel applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit (Civil Service Commission). 341 So.2d 1161.

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


text:
    Jennings C. CAIN v. WITCO CHEMICAL CORP. et al.
    No. 59498.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Jennings C. Cain applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 341 So.2d 1220.

Application denied; no error of law in the court of appeal judgment.


text:
    Ivory BOATNER v. McCRORY CORP. et al.
    No. 59501.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: McCrory Corp. et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 341 So.2d 1174.

Application denied; no error of law in the Court of Appeal judgment.


text:
    Jennings C. CAIN v. WITCO CHEMICAL CORPORATION et al.
    No. 59502.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: James H. Hayes and Employers Insurance of Wausau applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 341 So.2d 1220.

Application denied; on the facts found, no error of law in the judgment of the court of appeal.


text:
    Jennings C. CAIN v. WITCO CHEMICAL CORP. et al.
    No. 59524.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Milton L. Ulmer, Witeo Chemical Corp. and Travelers Ind. Co., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton. Rouge. 341 So.2d 1220.

Application denied; no error of law in the judgment of the Court of Appeal.


text:
    Mrs. Judith Homes JOHNSON v. Norman L. JOHNSON.
    No. 59616.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Mrs. Judith Homes Johnson, applying for supervisory writs and stay order.

Writ denied. The showing made does not warrant the exercise of our supervisory jurisdiction. Applicant has an adequate remedy by appeal.


text:
    STATE of LOUISIANA v. Michal MACK.
    No. 59434.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Michal Mack applying for writ of habeas corpus.

Writ denied. No merit in the application.


text:
    STATE of Louisiana ex rel. Johnny Lee GUIDRY v. Ross MAGGIO, acting warden, Louisiana State Penitentiary.
    No. 59451.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Johnny Lee Guidry applying for writ of certiorari.

Writ denied. No merit in application.


text:
    STATE of Louisiana v. John ELMORE, Jr.
    No. 59484.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: John Elmore, Jr. applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. On the showing made, there is no error in the trial court’s ruling.


text:
    STATE of Louisiana v. Marion MORVANT.
    No. 59486.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Marion Morvant applying for writs of certiorari, mandamus and prohibition.

Writ denied. Applicant has an adequate remedy by review in the event of conviction. This Court will not interfere with the orderly proceeding in the trial court in the absence of palpable error or irreparable injury. The ruling complained of is not palpably erroneous.


text:
    STATE of Louisiana v. Gail DELLA.
    No. 59617.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Gail Della applying for writs of certiorari, prohibition, mandamus and stay order.

Writ and stay order denied. Under the showing made, relator is not entitled to relief.


text:
    Bonnie M. HATCH v. Urzula Cloud HATCH.
    No. 59558.
    Supreme Court of Louisiana.
    April 1, 1977.
   In re: Urzula Cloud Hatch applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 341 So.2d 1270.

Not considered. Not timely filed. See LSA-C.C.P. Art. 2167(2).


text:
    STATE of Louisiana v. Leland CORMIER.
    No. 59622.
    Supreme Court of Louisiana.
    April 4, 1977.
   In re: Leland Cormier applying for writs of certiorari, mandamus prohibition.

Granted. Bond reduced to $20,000.00.


author: SAMUEL, Judge.

text:
    Charles WEHR v. Vince VANCE and the Valiants.
    No. 7796.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1976.
    Moliere, Flanagan & Arceneaux, James T. Flanagan, Metairie, for plaintiff-appel-lee.
    Ellis Jay Pailet, Metairie, for defendants-appellants.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against defendant, an incorporated musical group, for past due wages. He does not claim statutory penalties and attorney’s fees. Defendant answered, denying any wages were due. After trial, there was judgment in favor of plaintiff in the amount of $1,148.71. Defendant appeals.

Plaintiff was employed by the defendant in February, 1974 as a singer at a salary of $175 per week. His compensation was paid in an irregular manner from the outset.

Defendant does not contend plaintiff has received his full weekly salary. It does contend that under an agreement reached at a meeting of the musicians of the group in the summer of 1973 all of its employees, were paid their full wages only if the net receipts accruing to the musical group after payment of essential expenses were sufficient to permit such payment and, in the event the net receipts were not so sufficient, they were to receive as compensation only a pro rata share of those receipts. It further contends the net receipts had not been sufficient to pay plaintiff his full wages and that he had received his full pro rata share. The meeting referred to is more fully described in a previous decision of this court, Smith v. Vance, 333 So.2d 695. As in the Smith case, plaintiff here contends he was employed at the rate of $175 per week, and that any amounts not paid to him weekly would accrue as back wages to be paid at a later date.

Also as in the Smith case, the issue before the court is simply one of fact. Was plaintiff hired under his version of the oral employment contract or did he agree, expressly or tacitly, to accept a pro rata share of the net income of the defendant corporation in lieu of a fixed salary as contended by the defendant?

The testimony regarding plaintiff’s employment contract is conflicting. Plaintiff offered three witnesses, himself, defendant’s then general manager (who was not connected with the band during plaintiff’s employment), and Dale A. Smith (apparently the plaintiff in the Smith case, who had been a member of the band during a part of the time involved in plaintiff’s claim). Defendant offered two witnesses, Kenneth Brandt and Andrew Franichivich, the same two witnesses called by the defendant in the Smith case. However, the testimony establishes that W-2 forms were issued to plaintiff and that plaintiff was not a member of the defendant organization in 1973 when the agreement was entered into.

The trial court resolved the conflict in favor of the plaintiff version of the contract. As we find a reasonable factual basis for this finding, we affirm under the rationale of Canter v. Koehring Company.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . La., 283 So.2d 716.


text:
    Leslie HANKTON, Individually and on behalf of minor child, Tiba Hankton v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 7893.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1976.

      Carl & Roussel, William S. Vincent, Jr., New Orleans, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for defendant-appellant.
    Before SAMUEL, SCHOTT and BEER, JJ.
   SAMUEL, Judge.

Defendant, a public carrier, appeals from a $2,000 judgment (consisting of $1,000 in stipulated medical expenses and $1,000 for pain and suffering) awarded plaintiff, a fare paying passenger, for injuries allegedly sustained by her when she fell while alighting from a defendant bus. Plaintiff also appeals seeking an increase in the general damage award.

The only evidence contained in the record relative to the manner in which the accident happened is the testimony of four witnesses, two for the plaintiff and two for the defendant.

Plaintiff testified: She was seated near the rear door of defendant’s Magazine Street bus. When she was near her “stop” she pulled the cord, signaling her intention to get off, the bus driver slowed the vehicle, and she proceeded to the rear door. Holding her baby on her right arm, she pushed the door open with her left hand. While still holding the door handle, she began to descend. When she had one foot on the curb and the other foot on the bottom step of the bus, the bus took off. She immediately let go of the handle and fell away from the bus.

The other witness for plaintiff was driving behind the bus on Magazine Street when the accident happened. He saw plaintiff and her baby fall as she was alighting. She threw the child away from her or she would have fallen on the baby. He stopped his car to help her. He was unable to state whether the bus jerked or if plaintiff made a misstep, but he did see the bus pull off as she was falling.

Defendant’s two witnesses were its claims representative and the manager of its maintenance division. They testified: The accident had not been reported by any of the drivers, none of whom were aware of any such accident. The bus door is designed so that the driver cannot move the bus when the door is open. One bus, which arrived at the scene of the accident at about the time plaintiff testified it had occurred, had reported a defective rear door which had been repaired two days prior to the accident.

Relative to the issue of liability, in his reasons for judgment the trial judge stated he was of the opinion the accident happened as described by the plaintiff. We agree with that conclusion, and under those facts the defendant is clearly liable.

Relative to plaintiff’s request for an increase in the $1,000 award for general damages, the record reveals she was given emergency treatment at a hospital immediately after the accident. About a week later she consulted her own doctor with complaints of pain in the neck area. The doctor noted muscle spasm and severe restriction of motion and tenderness. He diagnosed the injury as severe cervical strain. She remained under the doctor’s treatment for slightly more than two months.

Under our Supreme Court jurisprudence, we cannot substitute our judgment for that of the trial court unless there is an abuse of the much discretion vested in the latter by Civil Code Article 1934(3). While the award in this case appears minimal on the evidence in the record, we find no abuse of that discretion.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Although plaintiff sues both individually and on behalf of her minor child, her petition does not allege, and the record is devoid of any evidence showing, the child was injured in the accident.

      . See Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127; Robinson v. New Orleans Public Service, Inc., La.App., 336 So.2d 933.


author: GULOTTA, Judge.

text:
    Saundra A. Livingston, wife of Ira Joseph GELB v. Ira Joseph GELB et al.
    No. 7716.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Feb. 15, 1977.
    Greenberg & Dallam, Nathan Greenberg, Gretna, for plaintiff-appellant.
    Liskow & Lewis, Frederick W. Bradley, New Orleans, for defendant-appellee, Shell Provident Fund.
    Before GULOTTA, STOULIG and BEER, JJ.
   GULOTTA, Judge.

We are confronted with the applicability of the Louisiana “long arm statute”.

Plaintiff appeals from a judgment maintaining declinatory exceptions of insufficiency of service of process and of lack of jurisdiction over the person of the defendant filed by a New York-domiciled investment fund company. We reverse.

The facts are that plaintiff, the divorced wife of a Shell Oil Company employee, filed-suit against her divorced husband for one half of the proceeds received by him from a retirement investment fund when he terminated employment at Shell Oil. The Oil. Company afforded its employees the opportunity to participate, through payroll deductions, in an investment fund administered by Shell Provident Fund, the New York trust company.

Plaintiff alleges that, she obtained a divorce from her husband on May 18, 1966; that the community has never been dissolved; that the Fund is community property and, consequently, she is entitled to one half of the proceeds; that prior to distribution of the proceeds, Shell Oil Company had in its possession knowledge that the parties' had been divorced and knew or should have known of plaintiff’s entitlement to one half of the proceeds of the Fund; and, that this knowledge is imputed from Shell Oil Company as agent to its principal, Shell Provident. Plaintiff prays for an accounting and a money judgment.

Plaintiff seeks to obtain jurisdiction of the nonresident corporation-defendant, Shell Provident Fund, by invoking the pertinent provision of the long arm statute (LSA-R.S. 13:3201):

“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of. action arising from the nonresident’s
(a) transacting any business in this state;

The secretary and manager of Shell Provident Fund stated in answers to written interrogatories that Shell Oil Company is not an agent for service of process in Louisiana; that no trustee of Shell Provident Fund is a resident or domiciliary of Louisiana; that the employee-husband of plaintiff made a written application to join the Fund; that Shell Provident Fund is a New York trust designed to provide retirement funds to Shell Oil Company employees after termination of service; and that the Fund has no employees in Louisiana, does not solicit business in Louisiana and has no office in this State. The answers to the interrogatories further point out that the Fund has no securities or assets in Louisiana; has no cash on deposit in this State; is not a Louisiana corporation; and does not make any reports to the State of Louisiana or any of its agencies or subdivisions.

It is plaintiff’s contention, on the other hand, that the answers to the interrogatories disclose that Shell Provident Fund is conducting business in this state through the employees of Shell Oil Company. According to plaintiff, the Fund, through its agent, Shell Oil Company, has sufficient “minimal contacts” to constitute transacting business within the State.

The question whether a nonresident corporation is “transacting any business in this state” is factual and depends on the circumstances of each case. See Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, 283 So.2d 687, 690 (La.1973); Kalvar Corporation v. General Micrographics, 318 So.2d 71, 73 (La.App. 4th Cir. 1975), writ refused, 322 So.2d 773 (La.1975).

The salient facts in the instant case are that the employee fills out a “Membership Application and Payroll Deduction Authorization” form. The employer, Shell Oil, deducts the percentage of the pay as authorized by the employee, matches this amount and forwards the total to the Fund in New York. The. Company contribution is used to purchase Shell Oil Company stock. The employee’s deduction is channelled into an account invested by the Trustees in bonds or debentures or into an account (resembling a mutual fund) invested in common stocks. Information concerning the Fund is distributed by Shell Oil Company in the form of descriptive pamphlets; and employees of Shell Oil Company perform the collection and bookkeeping functions in Louisiana. The Fund does not pay the salaries or expenses of the Shell Oil Company employees who perform these functions. Securities brokers’ commissions are paid by the Company or out of the funds held by the Trustees of the Fund. The Trustees themselves receive no remuneration. The Fund distributes to the employee an annual report of the Fund and an annual statement of the individual member’s account.

In Dimarco v. Sterling Electronics Corporation, 336 So.2d 964 (La.App. 4th Cir. 1976), we held, under circumstances similar to those in the instant case, that a defendant-nonresident trustee subjected himself to Louisiana jurisdiction by doing business in the state through an agent. In Dimarco, the plaintiff’s employer, a foreign corporation doing business in Louisiana, furnished forms to be signed by its employees appointing the nonresident as a “trustee” or fiduciary empowered to purchase Sterling Electronics Corporation stock on the American Stock Exchange with the payroll deductions of the employees. In the cited case, the defendant-trustee was an officer of the employer corporation. There is no indication in the Dimarco record that the trustee received a fee or compensation for his services as trustee which included purchase of the stock and forwarding periodic account-ings to the employee.

In the instant case, as in Dimarco, literature is furnished to employees and bookkeeping functions are performed by the employer-corporation in Louisiana. The 1972 annual report of the Fund reveals that the 12 trustees of the Fund are officers of Shell Oil Company or its affiliate corporations. Though the assets of the Fund are not invested exclusively in Shell Oil Company stock, the trust provisions indicate that Shell Oil stock is, in fact, purchased. Furthermore, Shell Oil obligates itself to indemnify the Provident Fund trustees against claims and liabilities.

When we consider the relationship between Shell Oil and Shell Provident Fund, we find no substantial difference from the relationship between the foreign trustee and the Louisiana resident corporation in the Dimarco case. Accordingly, we conclude that the nonresident trustee, Shell Provident Fund, is “transacting business” in Louisiana through its agent, the Louisiana resident, Shell Oil Company, and, therefore, is within the reach of the “long arm statute”.

We distinguish our facts from those in the landmark decision of the United States Supreme Court in Hanson v. Denckle, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). In Hanson, the Court held that the Delaware trustee was not subject to in personam jurisdiction by a Florida court. The settlor of the trust was a Pennsylvania resident who had moved to Florida subsequent to the establishment of the trust. Though the trustees mailed income to the settlor-beneficiary in Florida, the Court found that the record did not disclose any “solicitation of business” in Florida or any act by the trustee “by which . . [it] purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws”. See Hanson, supra, at pages 251 and 253, 78 S.Ct. at page 1240. In Hanson, the arrangements for the creation and the actual creation of the trust were made by a Pennsylvania resident with a Delaware trustee. Florida’s only connection arose when the beneficiary moved to Florida and received income in that state from the Delaware trustee.

In the instant case, however, the brochures and information relating to the Fund were distributed by Shell Oil in Louisiana; the payroll deductions were made in this state; and, an accounting from, the Fund was sent here to the Louisiana employee. Under the circumstances, we conclude that Shell Provident, through Shell.Oil, its agent, has sufficient contacts to satisfy the due process requirements of in personam jurisdiction. See International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).

Accordingly, the judgment of the trial court maintaining Shell Provident Fund’s declinatory exceptions of insufficiency of ■ service of process and lack of jurisdiction over the person of the defendant is reversed and set aside. The matter is remanded for further proceedings not inconsistent herewith.

REVERSED, SET ASIDE AND REMANDED.

      . LSA-R.S. 13:3201 reads as follows:
      § 3201. Personal jurisdiction over nonresidents
      “A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s

        (a) transacting any business in this state;
      (b) contracting to supply services or things in this state;
      (c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
      (d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business,- or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; or
      (e)having an interest in, using, or possessing a real right or immovable property in this state.”

      . Shell Oil Company has been joined as a party defendant.


text:
    Dorothy Bailey, wife of/and David E. GRAY, v. PREFERRED PROPERTIES, INC. and Joel H. Mitchell.
    No. 7738.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    McGlinchey, Stafford, Mintz & Hoffman, Joseph W. Rausch, New Orleans, for plaintiffs-appellees.
    Robert S. Taylerson, Metairie, for defendant-appellant.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   SAMUEL, Judge.

Defendants have appealed from an adverse judgment ordering rescission of a November 26, 1973 sale of an unimproved lot and the return of the purchase price, plus interest. Plaintiffs are the purchasers.

The record contains the testimony of the two plaintiffs, the individual defendant, Mitchell, who was president and owner of the defendant corporation, and the attorney and notary who passed the act of sale. While the testimony is in conflict regarding some pertinent matters, we find the following facts, which we believe also were found by the trial court:

Mr. Gray became acquainted with the corporate defendant through a newspaper advertisement in the “Swap” section. He contacted Mr. Mitchell regarding the purchase of a lot and they arranged to meet near the unimproved area, between the Airline Highway and the river near LaPlace, Louisiana, in which the property was located. They met and walked a short distance on a side road to within 200 or 300 feet of Lot 7, the property in suit. Using a particular tall tree as a reference point, Mitchell pointed out the lot which, he said, was located on the highway side of railroad tracks running in the back of the lot. Mitchell further informed Gray the lot was not in a swampy area, to the contrary, the property was “high and dry”, and that an Illinois concern, which also had purchased in the area, would cut a road through in the near future.

We further find that, contrary to the misrepresentations made by Mitchell, Lot 7 was located on the river side of the railroad tracks in a swampy area and that the plaintiffs would not have purchased had they known its actual location and condition.

In this court defendants contend: (1) plaintiffs received the property for which they paid; and (2) alternatively, no personal judgment should have been rendered against the president of the defendant corporation.

The first contention is basically a question of fact which has been resolved in favor of the plaintiffs. The trial court found, and we agree, there was no “meeting of the minds” as required under Civil Code Articles 1820, 1821 and 1824. The sale in suit is invalid because there was error in the subject matter of the contract.

Nor do we agree with the second contention. We are satisfied that Mitchell knew the correct location and condition of Lot 7 and, despite that knowledge, misrepresented that location and condition. He is personally responsible with the corporation for the same reasons that an employee is personally liable, together with his employer, for damages caused by his negligence while driving a vehicle on the business of the employer.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

      . See Franklin v. Evans, La.App., 315 So.2d 818.


author: STOULIG, Judge.

text:
    Mrs. Tressie Caruso, wife of and Joseph A. CARUSO v. Carroll J. LEDET and Allstate Insurance Company.
    No. 7749.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.

      Bordelon & Carimi, Darryl J. Carimi, Gretna, for plaintiffs-appellants.
    Murphy & Simon, E. Kelleher Simon, New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiffs, Tressie and Joseph Caruso; were awarded by jury verdict general damages of $2,000 and $6,270, respectively, for injuries they incurred in an automobile accident admittedly caused by the negligence of Carroll J. Ledet in failing to stop for a red light at the intersection of Gentilly Boulevard and Lafaye Street in the City of New Orleans. In addition, Mr. Caruso- was awarded special damages of $1,479.17 against defendants, Carroll J. Ledet and his insurer, Allstate Insurance Company, to reimburse the community for expenses it incurred attributable to this accident. Plain-., tiffs have appealed to seek an increase -in quantum.

We affirm. It is apparent from the record plaintiffs (both of whom are in their sixties) not only sought compensation for the injuries attributable to the accident, but also for other nonconnected medical problems which either predated or postdated the occurrence of the collision.

The accident occurred on January 30, 1973. Both plaintiffs were examined and treated at the emergency room of Methodist Hospital and were discharged the same day. Before seeking medical treatment, they first had their car towed to a repair shop and next went to their home at Lake Catherine (about 25 miles from the accident site) to change clothes.

Two weeks later, on their attorney’s referral, they consulted Dr. David Aiken, a general surgeon, who found both had incurred neck and back injuries as a result of the trauma. He prescribed extensive physical therapy, cervical collars for each and an orthopedic corset. In April 1973, because he felt the neck and/or back problems were not responding to treatment. Dr. Aiken referred both to Dr. Thomas Whitecloud, an orthopedist.

In their initial visit to Dr. Whitecloud, neither Mr. nor Mrs. Caruso had neck or back complaints. In fact he testified these areas were asymptomatic in both patients. And yet both plaintiffs were attempting to convince the jury that either the neck or back or both had caused them constant pain from the date of the accident to the date of the trial more than two years later.

The cited inconsistency is but one of many in this voluminous record containing 672 pages of testimony. Plaintiffs’ tendency to exaggerate their aches and pains destroys the probative value of most of their medical expert testimony, because, to a large extent, the diagnoses tracing their problems to the accident are based on their questionable subjective complaints.

Some of the injuries Mr. Caruso allegedly sustained for which the jury allowed no recovery include a broken nose, a torn meniscus in the knee and broken teeth. In all three cases it is understandable why the jury disallowed the claim. With respect to the nose and the teeth, the complaints did not materialize when Mr. Caruso went to the emergency room after the accident. In fact he was not treated for the teeth until more than nine months after the accident. As to the torn meniscus, it was diagnosed by Dr. Whitecloud in June 1973, who related its cause to the accident based in large part on the history given by this plaintiff. A second orthopedist — Dr. Eugene Dabez-ies — concluded Mr. Caruso did not have a torn meniscus. In short we cannot conclude the evidence reflects the jury committed manifest error in bringing in its verdict.

It is apparent that plaintiffs received injuries in an accident caused solely by the negligence of Ledet. They were treated for trauma that probably resulted from the impact of January 30, 1973. For this they received some compensation. Their efforts to enlarge their awards with questionable complaints makes it difficult to sift what is real from what is imagined or invented. Under the circumstances we think the jury displayed patience and insight in reaching the verdict they did.

For the reasons assigned, the judgment appealed from is affirmed. Appellants are to pay the cost of this appeal.

AFFIRMED.


author: SCHOTT, Judge. BEER, Judge, SCHOTT, Judge. BEER, Judge,

text:
    HUGH O’CONNOR, INC. v. J. ROBERT AUTENREITH, INC. and Plumbers and Steamfitters Local 60 Home Association, Inc.
    No. 7732.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    On Rehearing March 15, 1977.
    Writ Refused May 5, 1977.

      René A. Pastorek, Gretna, for plaintiff-appellant.
    Dodd, Barker, Boudreaux, Lamy & Gardner, C. Paul Barker, New Orleans, for defendant-appellee.
    Before BOUTALL, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

This suit grew out of a building contract between Plumbers and Steamfitters Local 60 Home Association, Inc. (Plumbers) as owner and Hugh O’Connor, Inc. (O’Connor) as general contractor, for the construction of a union hall and training school. The owner’s architect was Mathes, Bergman, Favrot and Associates, Inc. (Bergman) and the mechanical subcontractor was J. Robert Autenreith, Inc. (Autenreith).

On April 7,1969, a standard AIA form of agreement was signed between Plumbers and Bergman for the design of the building and for the usual architectural services in connection with employing a contractor and administering the contract. ’ On September 4, 1970, Bergman issued an invitation for bids on the project which included the following:

“Mechanical work: The General Contractor is not to obtain bids for mechanical work. The Owner will furnish the General Contractor with an estimate for accomplishing the mechanical work which he is to include in his proposal.”

On September 11,1970, Bergman notified all prospective bidders that they were to use Autenreith’s bid to perform the mechanical work at a price of $173,856. On September 18 the building contract was signed between Plumbers and O’Connor for a price of $727,300. On October 6 a subcontract was entered into between Autenreith and O’Connor for the mechanical work at Autenreith’s price of $173,856.

On September 10, 1971, as the work on the project neared completion Autenreith requested that Bergman release the 10% retainage on his subcontract. Autenreith stated that there was an agreement between it and Plumbers to do the mechanical work at Autenreith’s cost with the understanding that a fee would be negotiated between Plumbers and Autenreith upon completion of the job. Bergman then wrote Plumbers as follows:

“We have a letter from Mr. J. Robert Autenreith in connection with the retain-age which is being held on the work accomplished by his firm in the new building. Due to the fact that he is doing this on a cost basis and any fees to be paid to him would be negotiated between you and his firm, we feel that the retain-age is certainly not necessary. . . . ”

Bergman went on to recommend that the retainage be released as Autenreith requested. On September 24 Bergman notified O’Connor that he might include in his requisition for that month the full amount due Autenreith without regard to the usual retainage. On September 27 Autenreith submitted to O’Connor a request for payment of the $17,385.60 retainage. But on September 29 O’Connor addressed the following letter to Bergman:

“With reference to your letter of September 24, we would be happy to release the retainage held on the contract with J. Robert Autenreith, Inc. except for the fact that we have been notified by letter and by telephone from two of Mr. Auten-reith’s subcontractors that they have not been paid and holding us responsible for this payment, as is the law.
“However, if you would contact the Owners and have them send us a letter releasing us and our bonding company, Highlands Insurance Company, from any possible liens or claims on this job from Autenreith’s subcontractors or material suppliers, we will release this retainage immediately.
“I’m sure you can appreciate the fact that it is necessary to insist on this protection since we are potentially liable to all material suppliers on the job, particularly when they have formally put us on notice of non-payment.”

In response to that letter on October 5, Bergman said that there was no reason to have retainage on the Autenreith contract since the contract between Plumbers and Autenreith was for cost. The letter concluded:

“We are perfectly willing to release you and your bonding company from any liens or claims in connection with Auten-reith’s subcontractors or materials suppliers.”

On November 5, 1971, Bergman wrote Plumbers referring to his earlier recommendation that the retainage on Autenreith’s contract be released. Bergman stated that he had been at that time aware of two claims by Autenreith’s suppliers but he was now aware of many other items due by Autenreith totaling in excess of the amount due Autenreith by O’Connor. The letter concluded as follows:

“In our letter of October 5, to Hugh O’Connor Company in which we stated that joint cheeks would be made to Au-tenreith and his material suppliers we stated that we were willing to release O’Connor Company and their bonding company from any liens and claims in connection with the subcontracts or material suppliers. This statement was made in connection with the retainage on the contract only and inasmuch as this retain-age has not been released to O’Connor Company we should withdraw the statement entirely. Previously in this letter we stated that the retainage should be withheld for a complete accounting and we also feel that it should be withheld due to the possibility of any misunderstanding concerning the release of O’Con-nor or their bonding company and any obligations.”

Autenreith defaulted and ended up in bankruptcy but the retainage was never paid by O’Connor despite the discussions among the parties. Autenreith’s work was completed by O’Connor subject to an agreement between O’Connor and Plumbers under which the parties reserved their rights to determine who would be ultimately responsible for the excess cost of the work originally undertaken by Autenreith. This appeal is. from a judgment dismissing O’Connor’s suit against Plumbers.

O’Connor contends that there was a separate contract for the mechanical work between Autenreith and Plumbers and relies on De Lambre v. Williams, 36 La.Ann. 330 (1884) as authority for the proposition that it is not liable for Autenreith’s default under the circumstances. O’Connor further contends that Bergman in his letter of October 5, 1971, gave O’Connor a release which was either then binding on Plumbers or subsequently ratified by Plumbers.

At the trial of the case the testimony of Edward J. Bertoneau, President of Plumbers, J. Robert Autenreith and others was admitted over the objection of counsel for Plumbers in an attempt by O’Connor to show that there was a separate contract for the mechanical work. The trial judge did not make a specific factual determination as to whether there was such a contract or" not, but he nevertheless distinguished the case from the De Lambre case on its facts. From our review of the record we have concluded that the evidence is insufficient to establish that there was such a separate contract between Autenreith and Plumbers.

The evidence shows that Autenreith and ■ Plumbers had a close relationship for many years prior to Plumbers’ decision to construct the Union hall and school. Auten-' reith testified that in his discussions with Bertoneau he agreed to do the mechanical work at his cost because of the “prestige of doing it” and because he wanted to help the local Union. He qualified this testimony to the extent of the following answer given by him in response to a question as to whether or not there was to be a fee paid to his company at the conclusion of the job:

“Well, this is a nebulous thing and it’s probably a very poor way of doing business, but I told Eddie that we would do it at cost and after the job was over if we could save any money perhaps we could get a small fee out of it and/or maybe out of the money that was left in our original estimate. I think that’s it. To the best of my ability that was the conversation and it ended there.”

On the other hand, Bertoneau testified that Autenreith’s figure was firm and that there was no understanding that any fee would be paid whether Autenreith’s cost estimate proved to be accurate or not. Asked whether he had agreed to reimburse Autenreith in the event that there was an overrun in his costs, Bertoneau replied that he could not make such a commitment without going back to the local Union, presenting it to them and explaining why. He stated that everything he did was subject to the approval of the local Union.

In argument that there was a separate contract between Autenreith and Plumbers, O’Connor relies especially on the letter sent by Autenreith to Bergman on September 10 which began: “As you know our agreement with Local 60 is to furnish and install Plumbing and Heating on the referenced project at our cost. Upon completion of the job, a fee would be paid to us that would be negotiated between Mr. Bertoneau and ourselves.”

When Autenreith was asked to explain this letter he pointed out, first, that the letter was not written by him but by a Mr. Green of his organization, and second, that the letter was “improperly phrased.” Asked what was a more accurate way to put it, Autenreith replied:

“Well, actually we were going to develop the entire cost of the project and if we saved some money perhaps we could get something out of it and if we didn’t save it, then we still were going to do it at cost. That was my understanding with Bertoneau. But as far as an actual fee, or percentage, or anything else, we never did discuss that.”

When Bertoneau was confronted with the letter from Autenreith on the witness stand he denied having seen it at the time, and with respect to Bergman’s letter of September 10 to Plumbers in which the same thought was expressed to Bertoneau he testified that he ignored that part of Bergman’s letter because he was satisfied that Autenreith had quoted a firm figure not at all subject to future negotiation.

Autenreith’s uncorroborated testimony that there was some “nebulous” understanding that if Autenreith accomplished the work for much less than his estimated cost Plumbers might receive a reimbursement and Autenreith might be paid some fee out of the excess funds is not sufficient to establish a valid building contract between the two corporations. The evidence preponderates to the effect that Autenreith furnished Plumbers a firm bid to do this work with the understanding of everyone concerned that his company would be the exclusive mechanical subcontractor on this job for the amount of the bid. All contractors bidding on this project were free to use the Autenreith bid any way they saw fit. For instance, O’Connor added Autenreith’s bid to his other costs before figuring his percentage of overhead and profit on the job. While Autenreith’s bid excluded the cost of a performance bond in O’Connor’s favor, nothing precluded the latter from adding this to its own costs. O’Connor was at no disadvantage in comparison with other bidders but voluntarily accepted Auten-reith as a subcontractor when it submitted its bid for the general contract.

The distinction between this case and the De Lambre case relied upon so heavily by O’Connor is in the facts. In the cited case the Supreme Court found as in the instant case that the costs of the engineer’s work and the carpenter’s work were in the general contract, but referring to a stipulation fixing the value of those two elements the court said: “From the tenor of the stipulation itself, and from other evidence, it appears clearly to our minds that they formed no part of defendant’s contract . .

Thus, in De Lambre, there were separate contracts between the owner, on the one hand, and the engineer and carpenter, on the other, but in the instant case there was a firm contract between O’Connor and Plumbers which included the mechanical subcontract of Autenreith and the facts do not support the existence of a separate contract between Plumbers and Autenreith for the performance of this work.

O’Connor’s next contention is to the effect that a release binding upon Plumbers was given to it by Bergman in his capacity as agent for Plumbers in the letter of October. 5 in which Bergman stated: “We are perfectly willing to release you and your bonding company from any liens or claims in connection with Autenreith’s subcontractors or materials suppliers.”

Before dealing with this contention we must first consider how matters stood among the parties when the letter was written. A valid, enforcible contract existed between O’Connor to perform the mechanical work subcontracted by it to Auten-reith. One of O’Connor’s obligations was to protect Plumbers from liens by suppliers of labor and material. If a release was contemplated, what consideration was given for such a release by O’Connor? We can conceive of none and therefore regard O’Connor’s argument as an attempt to enforce a gratuitous remission of its obligation to Plumbers. See LSA-C.C. Art. 2199 et seq.

C.C. Art. 2997 provides that an agent’s power must be express and special for a number of purposes including the power to compromise. Surely it must also be express and special for the power to grant a gratuitous remission of a debt.

Furthermore, the letter from O’Connor to Bergman on September 29, which elicited the October 5 response, indicated by its own terms that O’Connor was aware that a release would have to come from the owners specifically requesting that Bergman “contact the Owners” for the release.

Finally, O’Connor relies on C.C. Art. 3000: “Powers granted to persons, who exercise a profession, or fulfill certain functions, or doing any business in the ordinary course of affairs to which they are devoted, need not be specified, but are inferred from the functions which these manda-taries exercise.”

It was Bergman’s function to administer the terms of the contract between O’Connor and Plumbers. The article can hardly be construed to include among Bergman’s functions the right to grant a remission to O’Connor with respect to obligations which were undertaken when the contract was entered into.

However, O’Connor contends that Bergman’s actions in releasing O’Connor was ratified by Plumbers. O’Connor relies on Fred G. Jones & Co. v. Sanford, 163 La. 799, 112 So. 726 (1927) and McNeely v. Dave Lumber Co., 18 La.App. 672, 137 So. 607 (2nd Cir. 1931) as authority for the proposition that where an agent exceeds his authority it is the duty of the principal to disavow the agent’s actions or suffer himself to be bound. We have already observed that the alleged release by Bergman would be more in the nature of a gratuitous remission and we question whether the doctrine of implied ratification has any application, but pretermitting that question, the facts do not provide a basis for the application of the doctrine.

O’Connor contends that Plumbers had knowledge of Bergman’s letter in early Oc-. tober, 1971, from conversations between Bergman and Bertoneau. O’Connor points to the language used by Bergman in the letter of November 5 to the effect that “we should withdraw” the statement made to O’Connor in the October 5 letter to the effect that the release would be given to O’Connor and the surety. However, the trial court found that Plumbers first became aware of the purported release on November 5, thereby accepting Bertoneau’s unequivocal testimony that Bergman did not tell him about the letter of October 5 and the first knowledge that he had of any problems was after Autenreith had defaulted.

The evidence shows that there were problems with two of Autenreith’s subcontract tors as of September 29, and when Bergman wrote his letter of October 5 he was aware of these two subcontractors and no more. At that time he did not have any reason to believe that Autenreith could not perform the contract. Around the middle of October, Autenreith suffered a heart attack and his problems followed in rapid succession, so that by November 5 Bergman realized the seriousness of Autenreith’s situation. Bertoneau admitted that he read Bergman’s letter of November 5 and did nothing to respond because he considered the problem would be handled between the architect and the mechanical contractor. O’Connor contends that Plumbers’ failure upon receipt of that November 6 letter from Bergman to repudiate Bergman’s act of releasing O’Connor raised the presumption that Plumbers ratified the release and therefore approved O’Connor’s contention to the effect that Bergman granted on Plumbers’ behalf a release in favor of O’Connor.

But by November 5 Autenreith had already defaulted and it now was an accomplished fact that O’Connor would have to complete the mechanical work on the contract. Many of the claims by Autenreith’s subcontractors had already surfaced and the parties were now aware of them. It would not be reasonable for O’Connor to believe that Plumbers was willing to ratify a release of O’Connor under these circumstances.

■ O’Connor’s argument is essentially that C.C. Art. 3010 applies. This provides as follows:

“The attorney can not go beyond the limits of his procuration; whatever he does exceeding his power is null and void with regard to the principal, unless ratified by the latter, and the attorney is alone bound by it in his individual capacity.”

Under the circumstances prevailing on November 5 we cannot see any basis for holding that Plumbers intended to ratify Bergman’s release which would have been tantamount to dispensing O’Connor from performing its remaining obligations under a binding contract when Plumbers derived no benefit whatsoever.

Accordingly, the judgment appealed from is affirmed at plaintiff’s cost.

AFFIRMED.

BEER, J., concurs with written reasons.

BEER, Judge,

concurring.

I reluctantly concur for I do not agree with the majority’s conclusion that: “The evidence preponderates to the effect that Autenreith furnished Plumbers a firm bid to do this work . . .

My reading and rereading of the record causes me to reach a different conclusion. In my view, the actual agreement between Autenreith and the Plumbers was a De Lambre v. Williams type arrangement.

However, the able trial judge made factual findings which he describes as “distinguishable” from De Lambre v. Williams, and I cannot conscientiously substitute my judgment for his, for I cannot say that he has manifestly erred.

I feel that the facts clearly describe a moral obligation on the part of the Plumbers to reimburse O’Connor even if same is not technically supportable in a strict legal sense.

ON REHEARING

SCHOTT, Judge.

We granted O’Connor’s application for rehearing in which it urges that De Lambre v. Williams, 36 La.Ann. 330 (1884) cannot be distinguished from this case. It argues that our statement that the evidence is insufficient to establish a separate contract between Autenreith and Plumbers is inconsistent with our findings that Auten-reith furnished Plumbers a firm bid to do the mechanical work with the understanding of everyone concerned that Auten-reith would be the mechanical subcontractor on the job for the amount of the bid.

It is true that a contract was made between Autenreith and Plumbers to the effect that if, as and when Plumbers found a general contractor to undertake the construction of its building at a price which Plumbers would agree to pay, Autenreith would be the designated subcontractor for the mechanical work at the price Auten-reith had submitted. This is not to say that Plumbers at any time entered into a building contract with Autenreith to do the mechanical work.

A building contract arose between O’Con-nor and Plumbers when Plumbers accepted the offer made by O’Connor to construct the building based on the plans and specifications prepared by Bergman at the price which O’Connor submitted. O’Connor’s offer included a stipulation in favor of Auten-reith as a third person. LSA-C.C. Art. 1980, Planiol, vol. 2, Nos. 1210-1267. This stipulation was ratified by Autenreith when the subcontract was executed between it and O’Connor. Planiol, vol. 2, Nos. 1251-1253.

Thus, Autenreith did not make a separate building contract with Plumber as did the engineer and the carpenter with the owner in De Lambre v. Williams.

The result we have reached is consistent with that reached in Schultz v. Gund, 19 So.2d 682 (La.App.Orl.1944). There the owner’s architect received a bid from Hol-zer Sheet Metal Works to install a heating system prior to confection of a building contract between Schultz, the owner, and Gund, the contractor. Subsequent to the signing of the contract Holzer’s bid was accepted. The system did not function in accordance with the expressed guarantee in the contract between Schultz and Gund which provided: “The above system is to be guaranteed to keep the building at 70° F. dry bulb temperature.” After the failure was discovered there were numerous contacts between the owner and Holzer with the latter recognizing its obligation and making attempts to remedy the defects. The court found that the owner could recover damages from the contractor under these circumstances, saying:

“Before we consider the question of damages sustained by plaintiff, we notice a point which has been raised by the defendant, Gund, and his surety. It is contended in their behalf that, since the bid of the Holzer Company was received by Mr. Sporl, the architect, and the heating system installed directly by the Holzer Company and not under the supervision of the contractor, the latter is not responsible. We cannot see any force whatever in this contention. Gund made a contract with the plaintiff to erect his residence in accordance with certain plans and specifications; these plans and specifications provided for a heating system; Gund was paid for the installation of this system and is therefore responsible for the damages sustained under the building contract. The fact that he permitted the architect to deal directly with the subcontractor is unavailing to him as a defense.”

For these reasons and those assigned in our original opinion, our judgment on original hearing is hereby reinstated. Plaintiff is to pay all costs.

ORIGINAL JUDGMENT REINSTATED. AFFIRMED.

BEER, J., concurs with written reasons.

BEER, Judge,

concurring.

I concur for the reason that I believe that the majority has correctly applied the law to a factual situation which has support in the record even though my own appraisal of the factual situation is somewhat different from the majority view.

I believe that Hugh O’Connor, Inc. was, to a greater extent than that found by my brothers, in a De Lambre v. Williams situation. Thus, the result reached by the majority seems harsh to me. Yet, I cannot say that it is incorrect on the factual findings that form the basis for their holding, nor can I say that the factual findings to which they subscribe are unsupported by the record.