author: DIXON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Russell LASSAI.
    No. 62964.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Roy V. Ladner, Student Practitioner, William J. O’Hara, III, New Orleans, Supervising Atty., Loyola Law School Clinic, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Julie C. LeBlanc, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

This writ was granted to review the probation violation of a narcotics addict for a single instance of drug use while undergoing treatment for addiction.

Petitioner, Russell Lassai, pleaded guilty on July 8,1977 to theft and receiving stolen property and to being a guadruple offender. He was sentenced to serve twenty-five years in custody of the Department of Corrections. His sentence was suspended and he was placed on probation for five years, with the special condition that he be accepted in the Odyssey House for treatment of heroin addiction, and remain as a resident, confined to those premises until he is released as cured to the satisfaction of the court and Odyssey House personnel. Petitioner was prematurely discharged from the Odyssey House on June 19, 1978 for kissing another resident. The trial judge then transferred him to the Euterpe Center for treatment. In July, 1978 petitioner’s probation officer recommended revocation after one of the required urine tests indicated the presence of drugs, and after petitioner admitted to both his counselor and his probation officer that he had used drugs. Petitioner’s probation was revoked and the suspended sentence was made executory after a revocation hearing. Writs were granted to review the regularity of the revocation hearing.

While at the Euterpe Center he was given almost daily urine tests, and on July 16 the test was positive for preludin. A director there had been instructed by the probation officer to inform him of the first time Lassai “made a mistake.” When informed, he commenced proceedings to revoke the probation. On August 10 the probation was revoked by the district judge.

Defendant complains of two procedural errors. The procedural claims would not change our result in this review. Defendant’s admissions made to his probation officer were properly admitted by the trial judge in spite of the absence of Miranda warnings; the Miranda rule has not been extended to probation hearings. United States v. Johnson, 455 F.2d 932 (5th Cir. 1972), cert. den. 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972); accord, State of Washington v. Johnson, 9 Wash.App. 766, 514 P.2d 1073 (1973). Nor does the record disclose a privilege which would prevent the evidentiary use of an admission by defendant to the director of counseling at the Euterpe Center; it was not shown that she was a social worker, and for that reason R.S. 37:2714 is not applicable. Privileges are narrowly construed, and will not be extended to the counselor solely because she was “in the same position” as a physician (making R.S. 15:476 applicable) or social worker. See State v. Kaufman, 331 So.2d 16 (La.1976); State v. McKinnon, 317 So.2d 184 (La.1975).

The objection to the introduction of the urinalysis report — a form filled in by an unknown person purporting to convey information about a laboratory computer report of the urinalysis results — should have been sustained. It violated minimum due process rights of confrontation and examination of witnesses. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpeili, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Baggert v. State, 350 So.2d 652 (La.1977). Nevertheless, the error is not reversible. The report was not the only evidence of drug use; defendant’s admissions sufficiently proved the violations.

The object of probation is rehabilitation. If not cured during the probation period, defendant will sérve his twenty-five year penitentiary sentence. He almost completed his first year at Odyssey House and was transferred by the court to the Euterpe Center because he kissed a female inmate. Although addicted to drugs, the record shows only the single use of preludin on July 16,1978. The violation was reported because the probation officer had told the counselor to report the first mistake. The Euterpe Center did not want the revocation, and complained of lack of time to work with the defendant and his problems. Defendant’s counselor thought defendant a good candidate for rehabilitation, and would have taken him back for treatment if permitted by the court.

In his reasons for judgment the trial judge spoke mainly about the admissibility of the evidence, and emphasized that “probation is a matter of grace in the first place to start with by this court.” Morris-sey v. Brewer, supra and Gagnon v. Scarpelli, supra have established that even the qualified liberty of a probationer is protected by fundamental fairness and due process rights. This court, in State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976), reversed the Criminal District Court of Orleans Parish when it revoked a probation for a relatively minor violation, stating that C.Cr.P. 900 vests the trial judge with substantial discretion when a defendant violates a condition of probation, and that the failure to exercise that discretion is error. Even in the absence of that statute, fundamental fairness would require the exercise of sound discretion, and would prohibit arbitrary and capricious revocation.

The record before us does not support the decision to revoke defendant’s probation.

The judgment revoking defendant’s probation and the order making the sentence of July 8, 1977 executory is reversed.

SUMMERS, J., dissents.

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

Although I agree with the majority opinion in all other respects, I am not prepared to hold that the right of “any person . . arrested or detained in connection with the investigation or commission of any offense” to be advised fully of his constitutional rights, La.Const.1974, Art. I, § 13, is not guaranteed to a probationer under interrogation by his probation officer in connection with an offense which may constitute a violation of his probation.


source: Caselaw Access Project

author: TATE, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Robert HARRISON, Jr.
    No. 62745.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Harold Douglas, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lancé M. Africk, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of two counts — attempted second-degree murder, La.R.S. 14:30.1, and attempted manslaughter, La.R.S. 14:31 — arising out of the same gunfight, when he allegedly returned the fire of two police officers in an unmarked car. Upon his appeal, we find that his Assignment of Error 10 presents reversible error.

The assignment concerns grossly improper and prejudicial closing argument by the prosecutor, to which the defendant’s counsel immediately objected and requested a mistrial. The trial court noted the objection, did not admonish the jury to disregard the statements, and denied a mistrial.

The undisputed context facts show: Prior to the shooting, the defendant Harrison drove up to a bar with two women companions. A car pulled up and its unidentified occupants commenced firing, wounding the two women, and drove off. The owner of the barroom drove one of the wounded women to the hospital.

The shooting incident with the police, for which attempted first-degree murder charges were filed, occurred while the defendant Harrison was taking the other woman to the hospital.

Harrison was driving his automobile, tooting his horn, with a white rag hanging out the window, passing through red lights. He noticed two men in a light blue automobile chasing him. He testified he thought they were the persons who had earlier wounded the two women, so he attempted to elude it.

The pursuing car (in fact driven by policemen) pulled in front of the accused’s vehicle, blocking the street. He then engaged in a gunfight with the men, whom he claims he did not know were policemen.

We pretermit discussion of several other improper statement’s in the prosecutor’s rebuttal argument (such as an unfounded insinuation that the defendant’s counsel had tampered with the evidence by placing an extra shell in the evidence envelope when it was given to him in open court), which themselves might have warranted reversal. We do so, because one particular objected-to portion of the argument was so grossly improper and prejudicial as to require reversal in itself.

By this portion of the argument (set forth in full in the Appendix to this opinion), the prosecutor sought to impeach the uncontradicted evidence as to the prior shooting at the barroom in which the defendant and his two women passengers were innocent targets. The prosecutor suggested (on alleged facts completely outside the record) that the defendant Harrison had himself started the earlier barroom shooting. The prosecutor then sought to excuse his own failure to bring out by sworn testimony this incident by explaining that he is not allowed to bring out evidence of another crime committed by the defendant. He concluded: “The only reason I didn’t bring this up is because I am not allowed to.”

The trial court erred in denying the defendant's motion for a mistrial based upon this grossly improper argument:

In the first place, even assuming that the earlier shooting incident had been provoked by the defendant, there is absolutely no evidence in the record to this effect. The argument must be confined to the evidence admitted, La.C.Cr.P. art. 774, and a mandatory mistrial is required, La.C. Cr.P. art. 770(2), when the prosecutor refers directly or indirectly to another crime committed or alleged to be committed by the defendant as to which evidence has not been admitted or is not admissible.

In the second place, when a prosecutor’s argument prejudicially refers to matters allegedly within his personal knowledge as prosecutor but not in the evidence, reversible error results. State v. Kaufman, 304 So.2d 300 (La.1974). The reason is that this prejudicial type of argument improperly attempts to add to or subtract from the actual evidence in the record (only upon which may a conviction be based) solely through the influence of the prosecutor’s official position: Due to respect for the prosecutor’s personal knowledge and official expertise, the jury may give greater factual weight to his unsworn factual argument and consequently determine innocence or guilt on a basis of this rather than of the actual evidence properly introduced at the trial.

On appeal, the state’s only excuse for this improper argument is its contention that the evidence of “other crimes committed by the defendant, i. e., the initial shooting of Doris Carter and her mother” (state’s brief), had been introduced in evidence by the defendant.

We have read and re-read the transcript. We can find no reference or indication whatsoever, either in direct or cross-examination, that the earlier shooting of the two women outside the barroom occurred otherwise than as Harrison and the two women testified: that unknown assailants drove up and commenced firing at the defendant Harrison and the two women occupants of his automobile, without any prior provocation by Harrison or, for that matter, any retaliatory action by him.

At best, the prosecutor’s statements (indicating that Harrison had started the earlier shooting and committed an earlier crime) refer to evidence not in the record; at worst, they refer to an imaginary version of the incident. In either event, they are reversible, for the reasons earlier stated.

Decree

Accordingly, we reverse the defendant’s convictions and sentences, and we remand this case for a new trial in accordance with law.

REVERSED AND REMANDED.

Appendix

The prosecutor’s rebuttal argument (italics supplied) and the defense counsel’s objection are set forth at Tr. 140-142:

[PROSECUTOR:]

. The only people who testified for the defendant were the defendant himself, the defendant’s lady, and her mother. Nobody else told you anything, even about the shooting by the bar. No uninvolved people told you what happened on Law Street. Nobody told you that these three innocent people were getting out of a car and got shot by somebody who was in another car. The only people that have told you that, not that that’s got that much to do with this case, but if we do take that into consideration, the only people who told you that story are people with a strong interest and relationship to the defendant. The bartender didn’t come here and tell you anything. All you know is that the bartender wanted to take, according to one of the witnesses, the bartender wanted to take Doris Carter’s mother to the hospital. Why? Because possibly because he didn’t want to see Doris Carter’s mother with Robert Harrison, didn’t want to see her taking anymore chances of getting shot again, because Robert Harrison was probably the one who started the shooting there. Why didn’t I bring that out on my direct examination? Because I'm not allowed to; the State is not allowed to bring out evidence of other crimes. That’s why I didn’t — why my witnesses didn’t tell you about that case, about what happened at a shooting at a bar somewhere else. Because even if we feel that he was the one that committed any kind of shooting there, even if we feel that he was the one that committed any kind of shooting there; even if we feel that we can convict him of that case; and even if we do convict him of that case, I can’t bring that up to you because that’s another crime. And, I can’t tell you about that. He’s given the choice to bring that up. He brought it up, and then, I can respond to it. But, I couldn’t tell you that in the beginning. It’s not like I was trying to hide something from you and I don’t want you to believe that. The only reason that I didn’t bring that up is because I was not allowed to.
O.K. Let’s go into some other things about the case.

[DEFENSE ATTORNEY:]

Your Honor, I’d like to make an objection and ask for a mistrial based on the information and testimony, the argument made by the district attorney in reference to the possibility of some crimes being committed when there’s no evidence in the record as to anything occurring, and he had the investigative powers to find these things out, and bring the people forward more than defense counsel had. And, I think he’s misleading the jury. And, I think he’s playing upon their prejudice; I think he’s playing upon their emotions to try to convict a innocent man. And, I move for a mistrial based on that.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . The officers were in the privately owned vehicle of one of them, with no siren or flashing lights. However, they were in uniform, prepared to go on a walking beat.


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

text:
    STATE of Louisiana v. Alvin “Coffee” WASHINGTON.
    No. 62527.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    D. Michael Mooney, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Gregory D. Lyons, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant Alvin “Coffee” Washington was charged with distribution of heroin in violation of R.S. 40:966(A). After trial by jury beginning January 11, 1978, defendant was found guilty as charged. On March 13, 1978 the trial court sentenced him to the mandatory life term under the statute. On appeal, defendant argues sixteen of the twenty-one assignments of error filed in the trial court. Assignments 15 and 17 present reversible error.

Assignments of Error Nos. 15 and 17

Defense argues that the trial court erred in failing to instruct the jury that the mandatory penalty for distribution of heroin was life imprisonment; further, defense counsel complains that he was forbidden under pain of contempt to inform the jury of the penalty in argument.

State v. Blackwell, 298 So.2d 798 (La.1974), held that a jury need not be told of the penalty in an armed robbery case, noting, however, that in cases in which the penalty was mandatory life, the jury was to be informed of the sentence. In State v. Prater, 337 So.2d 1107 (La.1976), a majority of this court indicated that Blackwell would not apply “when the statutory offense requires a mandatory legislative penalty, with no judicial discretion as to its imposition following verdict.” 337 So.2d 1107, 1110. State v. Milby, 345 So.2d 18 (La.1977), noted the exception to the Blackwell rule, but did not reverse because the case was tried before Prater.

Trial in this case began January 11, 1978. The issue is squarely presented. The trial judge was in error.

When the penalty imposed by the statute is a mandatory one the trial judge must inform the jury of the penalty on request of the defendant, and must permit the defense to argue the penalty to the jury, for the reasons expressed in the dissents to State v. Blackwell, supra, and in the cases of State v. Prater, supra and State v. Milby, supra.

The conviction and sentence are reversed, and the case is remanded for a new trial.

TATE, J., assigns concurring reasons.

SUMMERS and MARCUS, JJ., dissent.

SANDERS, C. J., dissents and assigns reasons.

TATE, Justice

(concurring).

The special charge was not refused as incorrect. Both the trial court and the attorneys thought it correctly expressed the law.

The trial court denied the special charge solely because of its mistaken view that no charge or argument is permitted about sentences, even if the sentence is mandatory. The majority opinion correctly states the law.

SANDERS, Chief Justice

(dissenting).

The majority reverses this conviction because of the trial judge’s refusal to give the following special charge to the jury and to permit defense counsel to argue its substance to the jury:

“Should you the members of this Jury find Mr. Alvin ‘Coffee’ Washington guilty of distribution of heroin then by law this Court must sentence him to life imprisonment at hard labor without benefit of probation, or suspension of sentence, and may, in addition, require him to pay a fine of not more than $15,000.00.”

Louisiana Code of Criminal Procedure Article 807 requires the trial judge to give a special charge only “if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.” If the instruction is not wholly correct, it need not be given. State v. George, La., 346 So.2d 694 (1977); State v. Hall, La., 342 So.2d 616 (1977).

The special charge here is incorrect, because it asserts that the life sentence here is not subject to probation or suspension of sentence.

The present crime, distribution of heroin, was committed in 1974. At the time of the offense, the penalty was set forth in LSA-R.S. 40:966 B(l), providing for a sentence of life imprisonment and a discretionary fine. We have previously held that the statute barred neither suspension of sentence, probation, nor parole. State v. Whitehurst, La., 319 So.2d 907 (1975); State v. Terrebonne, La., 364 So.2d 1290 (1978).

Hence, the requested charge was incorrect and properly rejected.

There is another equally valid reason why reversal is unjustified in the present case. The majority relies upon State v. Milby, La., 345 So.2d 18 (1977); State v. Prater, La., 337 So.2d 1107 (1976) (concurring opinion), requiring a penalty charge “when the statutory offense requires a mandatory legislative penalty, with no judicial discretion as to its imposition following verdict.”

As I have noted, the penitentiary sentence in the present case is not mandatory in the usual sense. Either the execution or imposition of the sentence can be suspended. The trial judge can also grant probation. Hence, the cited decisions are inapplicable.

The record reflects that, at the time of sentence, the trial judge had a misapprehension of his sentencing authority, entertaining the view that he had no authority to suspend the sentence or utilize probation. Under the law, these alternatives were available to him. Hence, I would vacate the sentence and remand the case to the trial court for resentencing in the light of his correct sentencing authority.

For the reasons assigned, I respectfully dissent.

      . Act 631 of 1977 later amended the statute to prohibit probation and suspension of sentence, but it is inapplicable here.


author: PER CURIAM.

text:
    STATE of Louisiana v. Abe PERCY.
    No. 62577.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Bryan E. Bush, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Warren J. Hebert, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Abe Percy was charged by bill of information with armed robbery and aggravated burglary arising out of an incident which occurred on September 16, 1977 at a Pizza Hut Restaurant in Baton Rouge, Louisiana. Upon trial by jury he was found not guilty of armed robbery and guilty of aggravated burglary. Thereafter he was sentenced to twenty years at hard labor for commission of the aggravated burglary.

In connection with this appeal defendant filed ten assignments of error. Eight of them have been argued in brief and orally, in five arguments. None of the assignments are meritorious.

Accordingly defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: DIXON, Justice. MARCUS, Justice

text:
    Raymond UGULANO v. ALLSTATE INSURANCE COMPANY.
    No. 62664.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    David T. Bowman, Murphy & Simon, New Orleans, for defendant-respondent.
    F. L. Morris, Metairie, for plaintiff-appellant.
   DIXON, Justice.

This writ was granted to examine a Court of Appeal holding that a suit was barred by “judicial estoppel.” Ugulano v. Allstate Insurance Co., 359 So.2d 318 (La.App.1978). In the same month the Court of Appeal decided this case, this court decided Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La.1978); we held that none of the variations of the common law doctrines of res judicata, including collateral estoppel, applied in Louisiana. The Welch case referred to Mitchell v. Bertolla, 340 So.2d 287 (La.1976), where we examined in detail the “judicial estoppel” of California Co. v. Price, 234 La. 338, 99 So.2d 743 (1957), judicial confession and the common law doctrine of “collateral estoppel.” It was not necessary to decide, in Mitchell v. Bertolla, whether collateral estoppel would apply in Louisiana (in view of the doctrinal differences between the civil and the common law) because we found plaintiff’s suit was not barred by either collateral estoppel or res judicata. Welch v. Crown Zellerbach Corp., supra, decided against using the “judicial estoppel” or collateral estoppel recognized in California Co. v. Price, supra; insofar as California Co. v. Price recognized collateral estoppel, it is overruled (as is Quarles v. Lewis, 226 La. 76, 75 So.2d 14 (1954); Buillard v. Davis, 185 La. 255, 169 So. 78 (1936); Heroman v. Louisiana Institute of Deaf and Dumb, 34 La.Ann. 805 (1882)).

The case before us arises from an accident in which Ugulano and Jackson collided and were injured. Jackson sued Allstate, Ugulano’s liability insurer, but did not join Ugulano. Ugulano testified that the accident was caused by a yellow automobile which shot out in front of him. There was a judgment for Jackson, against Allstate, which became final. Ugulano brought a timely suit against Allstate, his liability insurer, as the uninsured motorist liability insurer of Jackson and the unknown yellow automobile’s driver. The trial judge dismissed Ugulano’s suit because of res judica-ta.

The Court of Appeal did not agree that res judicata barred the second suit, perceiving a difference in either the cause or capacity, since Allstate was a defendant in the first suit as the liability insurer of Ugu-lano, and in the second suit as the liability insurer of Jackson and the driver of the unknown yellow car (as Ugulano’s uninsured motorist insurer). Before us Allstate does not now argue that res judicata is applicable, but urges us to re-examine Welch v. Crown Zellerbach Corp., supra.

There would be no profit in a re-examination. There is an incompatibility in common law res judicata (aided by collateral estoppel) and civil law res judicata that would cause only confusion if the two doctrines were employed in the same jurisdiction. That incompatibility has been fully explored. Mitchell v. Bertolla, supra; Welch v. Crown Zellerbach Corp., supra; Hope v. Madison, 194 La. 337, 193 So. 666 (1940); 51 Tul.L.Rev. 611 (1977); 2 La.L.Rev. 347 (1940); 2 La.L.Rev. 491 (1940).

The judgment of the Court of Appeal is reversed, the judgment of the district court dismissing plaintiff’s suit is reversed, and the case is remanded to the district court; the defendant is cast for all costs to date.

DENNIS, J., concurs.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I agree with the court of appeal that the issue of the negligence of the driver of the unidentified yellow automobile was fully explored and considered by the trial judge in the prior trial; therefore, relitigation of this issue in a second suit is barred by the doctrine of judicial estoppel. I do not believe that this doctrine is incompatible with our civil law res judicata. Hence, I feel that we should reconsider our decisions in Mitchell v. Bertolla, 340 So.2d 287 (La.1976) and Welch v. Crown-Zellerbach Corporation, 359 So.2d 154 (La.1978). Accordingly, I respectfully dissent.

      . Allstate filed a motion for summary judgment based on the fact that Ugulano’s vehicle never came in contact with the unidentified yellow vehicle and exceptions of res judicata and no right of action based on the final judgment in the earlier suit of Jackson v. Allstate Insurance Co., No. 171,206. In granting the motion for summary judgment, the district court reasoned that the issue of negligence of Ugulano had been judicially determined and, because of that final determination, Ugulano could not recover under his uninsured motorist coverage in the instant case. The Court of Appeal interpreted the district court’s judgment as a finding of res judicata.

      . The weakness of the strongest argument for the expansion of res judicata — judicial economy — is demonstrated in this case. If Ugulano had been permitted to try his lawsuit, it would surely have been ended by now.


text:
    STATE of Louisiana v. David ADAMS.
    No. 62326.
    Supreme Court of Louisiana.
    Dec. 22, 1978.
    Wilfret R. McKee, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant David Adams was charged by grand jury indictment with first degree murder in violation of La.R.S. 14:30, as amended by Acts 1973, No. 109, § 1. The offense was alleged to have been committed on May 21, 1975. On February 17, 1976, after trial before a jury of twelve persons, defendant was found guilty as charged. The trial court sentenced him to the then mandatory penalty of death. Defendant now appeals his conviction and sentence to this Court.

We have reviewed the eight assignments of error filed on defendant’s behalf and conclude that they do not provide a basis for reversal of defendant’s conviction. However, the death penalty imposed is annulled and set aside, and the case is remanded to the district court with instructions to sentence the defendant to imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for twenty (20) years, the most severe constitutional penalty for criminal homicide at the time the offense was committed. La.R.S. 14:30.1, as added by Acts 1973, No. Ill, § 1. See Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); State v. Jenkins, 340 So.2d 157 (La.1976).

Accordingly, defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside and the case is remanded for resentencing in accordance with law.


text:
    Gary Wayne SIMS, Relator, v. CHARLES CARTER COMPANY, INC., Respondent.
    No. 63169.
    Supreme Court of Louisiana.
    Jan. 4, 1979.
    Robert W. Morgan, Baton Rouge, for Gary Wayne Sims, plaintiff-relator.
    Durrett, Hardin, Hunter, Dameron & Fritchie by L. Michael Cooper, Baton Rouge, for Charles Carter Co., Inc., defendant-respondent.
   ORDER ON JOINT MOTION TO DISMISS

The following Motion considered:

IT IS ORDERED that the above numbered and entitled matter be and it is hereby dismissed and that the record in this matter be remanded back to the Clerk of the Nineteenth Judicial District Court within and for the Parish of East Baton Rouge, Louisiana.


author: SUMMERS, C. J., and DIXON, J., DENNIS, J.,

text:
    STATE of Louisiana v. Marion M. VACCARI.
    No. 63831.
    Supreme Court of Louisiana.
    Jan. 26, 1979.
   In re: Marion M. Vaccari applying for Writs of Certiorari and Review and for a Stay Order (Jefferson Parish).

Writ granted. The bail of $100,000 previously fixed by the trial is reinstated, without prejudice to the right of State to move to revoke bond if the conditions required by La.C.Cr.P. Art. 313(2) are not met. See State v. Robinson, La.1978, 360 So.2d 880.

SUMMERS, C. J., and DIXON, J.,

are of the opinion that the trial judge was authorized to cancel relator’s bond after grand jury indictment and it was thereafter incumbent on defendant to move for and sustain the burden that the proof of guilt was not evident or the presumption was not great that relator was guilty of the capital offense. See La.Code Crim.Proc. Art. 313.

DENNIS, J.,

concurs in the writ grant. Heretofore, a majority of this court has held that bail fixed in a capital case as a result of a pre-indictment hearing is not invalidated, ipso facto, by a subsequent grand jury indictment. See State v. Robinson, La.1978, 360 So.2d 880. Accordingly, the defendant, who is not required to reapply for bail under La.C.Cr.P., Art. 313, is not required to show that she is entitled to bail. The burden should now be on the State to show that bail should be cancelled.


author: BEER, Judge. LEMMON, Judge,

text:
    Elson J. BROUILLETTE v. SEWERAGE AND WATER BOARD.
    No. 9732.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 1978.

      Clyde P. Martin, Jr., New Orleans, for plaintiff-appellant.
    John A. Gordon, Vincent T. LoCoco, Carol Seale, New Orleans, for defendant-appellee.
    Before LEMMON, BOUTALL and BEER, JJ.
   BEER, Judge.

Elson J. Brouillette was demoted from Maintenance Electrician to Maintenance Repairman by the Sewerage and Water Board on March 18,1977. Though reinstated on May 23, 1977, he appealed his demotion to the Civil Service Commission, which affirmed the action of the appointing authority. He alleges here that the appointing authority did not sustain its burden of proving that Brouillette failed “to perform the duties of his position in a satisfactory manner,” according to City Civil Service Rule IX, § 1.1, and, also, alleges that the Board failed to establish performance standards for Maintenance Electricians as required by LSA-R.S. 33:2418.

The facts are not in serious dispute: As early as August 12, 1974, Brouillette had been seen by Dr. William Johnston, complaining of symptoms of vertigo. Harry Quebedeaux (one of Brouillette’s supervisors) became aware that dizziness was curtailing Brouillette’s performance of his work in February, 1976, when he discovered Brouillette sweeping the floor rather than performing the duties of a maintenance electrician. Quebedeaux testified that Brouillette told him that he could not climb because of his vertigo problem. Quebe-deaux confirmed this particular incident by memo to Louis S. Meridier, Chief of Facility Maintenance, suggesting that Brouillette’s anniversary raise be denied in view of the fact that no confirmation from the medical department supported his alleged inability. Thereafter, however, Dr. Johnston gave Brouillette a work slip dated February 26, 1976, which prohibited climbing because of a history of vertigo. This was followed on March 31, 1976, by Dr. Johnston’s medical statement confirming that Brouillette suffered from recurrent episodes of vertigo and should not work over open areas.

Subsequent to these developments, on March 18, 1977, Brouillette was demoted because of his inability to climb. Then, on May 19, 1977, Dr. Johnston reported that the source of Brouillette’s problem was not vertigo but prolonged hyperextension of the neck, and, thus, Dr. Johnston indicated that Brouillette could resume his former duties. Consequently, Brouillette was, shortly thereafter, reinstated by letter of May 23, 1977.

These facts to the contrary notwithstanding, Brouillette did not inform his supervisors of the new diagnosis because he was waiting for VA hospital verification of Dr. Johnston’s new opinion. Thus, Quebedeaux accurately testified that there was no indication by Brouillette — prior to the issuance of the letter of demotion — that he had become able to perform the duties of his classification. The contrary was true: as of the demotion date, Brouillette was unable or unwilling to perform the full duties of a maintenance electrician.

Stuart H. Brehm, Executive Director of S&WB, testified that the demotion was an administrative decision based on the fact that the Board could not properly pay Brouillette for a job description that he could not perform.

With written reasons, the Civil Service Commissioner held that the demotion was reasonable under the circumstances.

The record confirms that Brouillette was, during the time his demotion was in effect, unable or unwilling to properly perform his assigned duties. The job description of a maintenance electrician includes maintenance and repair of electrical equipment in a safe, efficient and reliable manner and the medical statement of Dr. Johnston sufficiently indicates that Brouillette could not safely perform all such duties due to his then thought to exist condition.

Brouillette also contends that the appointing authority’s failure to specify specific standards in the job description of Maintenance Electrician constitutes, thereby, a failure to meet the requirements of LSA-R.S. 33:2418 which requires that standards of performance “have reference to the quality and quantity of work done, the manner in which the service is rendered, . and such other characteristics as, in the opinion of the director, will measure the value of employees to the service.” However, working at heights and ladder use requirements are, implicitly, distinguishing features of work to be performed by a maintenance electrician, and the record is sufficiently complete to support a factual conclusion by the trier of the facts that such was the case.

With the hope of providing some guidelines for future reference, we hold as follows:

Where, as here, the record supports a factual conclusion that a Sewerage and Water Board employee is unable to safely perform the duties of his job, within a reasonable common sense description thereof, for medical or medically related reasons not caused or aggravated by a job-connected accident, the appointing authority has the right to demote or make such other administrative changes as will result in the job slot being filled by someone who is able in all respects to perform it fully and safely.

The judgment is affirmed, at appellant’s cost.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring.

The question is whether a public employee under Civil Service may be demoted when he is unable, for medical reasons, to perform the duties of the higher position. The answer is yes.

The purpose of the Civil Service system is to protect public employees from discrimination and to prevent their being subjected to dismissal, demotion or other disciplinary action without cause. La.Const.1974, Art. 10, § 8. The action taken by the appointing authority may be characterized as a tough business decision, but it does not necessarily constitute discrimination or arbitrary action within the contemplation of the Civil Service scheme. The Civil Service system does not protect employees against tough actions — only discriminatory or arbitrary actions.

      . Through a clerical oversight, Brouillette continued to receive the higher pay of a Maintenance Electrician during the period of his demotion.


author: SCHOTT, Judge.

text:
    INSURANCE COMPANY OF NORTH AMERICA v. SOLARI PARKING, INC. and U.S. Fidelity & Guaranty Company.
    No. 9216.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Writ Granted Nov. 3, 1978.
    Henican, James & Cleveland, Andrew I. Brown, New Orleans, for intervenors-appel-lees.

      Joe M. Inabnett, New Orleans, for plaintiff-appellee.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Jack M. Alltmont, New Orleans, for defendant-appellant Solari Parking, Inc.
    Bienvenu, Foster, Ryan & O’Bannon, David E. Walle, New Orleans, for defendant-appellant United States Fidelity & Guaranty Co.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

The Langes brought their automobile to a multistoried enclosed garage building located in the French Quarter in New Orleans and operated by defendant Solari. Mr. Lange handed his keys to the parking attendant and received a claim cheek. He briefly inquired as to the location of a night club and they left. When they returned, about four hours later, the parking attendant advised them that he had started up their automobile and then got out of it to serve another customer, whereupon a thief came into the garage, jumped into the automobile and drove it away.

This suit was initiated by the subrogated insurer of the Langes, INA, for the sum it paid to them for scheduled jewelry worth $5185 and unscheduled personal property in the amount of $1,000. The Langes intervened for $5609.03 as the value of the other items in the automobile. From a judgment in favor of plaintiff and intervenor, defendants, Solari and its insurer USF&G, have appealed.

When the Langes pulled into the parking lot there were two garment bags hanging on each side on the inside of the automobile. Some personal property was on the back seat and two small bags were on the front seat. The value of these items were negligible. The jewelry and items of real value were in the trunk of the automobile. No conversation took place between the Langes and the parking attendant relative to the contents of the trunk or of the automobile in general.

A deposit is an act by which a person receives the property of another binding himself to preserve it and return it in kind, LSA-C.C. Art. 2926. It takes place by the mutual consent of the person making the deposit and the person receiving it, Art. 2932. This consent is implied when the owner makes the deposit and the depositary does not refuse to receive it, Art. 2933.

In United States F&G Co. v. Dixie Parking Serve, Inc., 262 La. 45, 262 So.2d 365 (1972), recovery was allowed where there was a specific discussion between the customer and the parking lot attendant in which the customer was assured that his property would be safe. Similarly, in United States F&G Co. v. Allright Shreveport, Inc., 256 So.2d 479 (La.App. 2nd Cir. 1972), recovery was allowed where the customer and the parking attendant specifically discussed the contents of the automobile and the customer was assured that the contents would be safe. In these cases the court found that there was a special agreement enlarging the responsibility of the garage to include the contents over and above the automobile which, otherwise alone, was the subject of deposit.

In Travelers Insurance Co. v. General Auto Service, Inc., 220 So.2d 738 (La.App. 4th Cir. 1969), plaintiff’s automobile was stolen from a repair shop and the issue was the liability for items which were in the back seat area of the car. Plaintiff did not recall whether he notified the repair man of these items and the repair man testified that he did not notice them. The court reasoned:

“As to the items left in the car, the liability of the car’s depositary for their loss appears to depend on whether the car’s depositary either expressly consented to act as depositary for those items also; or had actual knowledge, or was chargeable with constructive knowledge, of their presence in the car so as to imply the depositary’s consent under LSA-C.C. art. 2933.”

The court dismissed plaintiff’s case since there was no proof of express consent by the defendant to accept the items and no proof that defendant had knowledge of their presence from which consent could be implied. Furthermore, their location in the automobile was not such that the defendant was charged with having constructively seen the items in the car. A similar result was reached by our predecessor court in Lee v. New Orleans Roosevelt Corporation, 106 So.2d 855 (La.App.Orl.1958), in which recovery was denied a customer against the parking lot operator for items in the trunk of an automobile which was stolen from the parking lot.

In the instant case plaintiff and interve-nor contend that defendants were charged with constructive knowledge of the automobile’s contents because the two garment bags were obviously hanging in the back of the automobile.

Alternatively they contend that defendants were charged with constructive knowledge of the contents because the parking attendant admitted having gotten into the car and started it before the theft thereby placing him in a position of having seen the other items inside the car.

We attach no legal significance to the attendant’s entrance into the car because by then the Langes had already left and the automobile had been received without this knowledge. Any contract of deposit was already confected.

Furthermore, the circumstances do not even support constructive knowledge that the garment bags were there when the attendant accepted the automobile. The Langes swapped their keys for a claim check, asked for and got directions to a night club and left. The attendant had no chance to inspect the automobile.

Finally, for plaintiff and ijntervenor to prevail they must establish that defendants had constructive knowledge not merely of the garment bags but of the unseen, hidden contents of the trunk where the items of value were located. We have concluded that there is no basis for imputing such knowledge to defendants so as to support their liability as a depositary based on implied consent.

Accordingly, the judgment appealed from is reversed and there is judgment in favor of defendants Solari Parking, Inc. and United States Fidelity & Guaranty Co., and against plaintiff, Insurance Company of North America and intervenors Gloria La-ton, wife of and Donald E. Lange, dismissing the main demand and the intervention at their cost.

The judgment on the third-party demand for indemnity is also reversed, and it is ordered that there is judgment in favor of United States Fidelity & Guaranty Co., dismissing the third-party petition of Solari Parking, Inc.

REVERSED AND RENDERED.

      . The Langes’ claim for the loss of their automobile was settled and is not here at issue.


author: LEMMON, Judge.

text:
    Rita Mae SANDERSON and Dave Sanderson, Jr. v. Howard BEAUGH et al.
    No. 9370.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 13, 1978.

      Steven R. Plotkin, John William Corring-ton, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr., New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and BEER, JJ.
   LEMMON, Judge.

Mr. and Mr. Dave Sanderson have sued to recover damages resulting from the wrongful death of their 11-year old child, Patrick, who was killed while walking in the woods by a .22 caliber bullet fired from within a fenced area of pasture and stables adjacent to the woods. Defendants were Vincent Taravella, who leased the land and operated the stables, and the fathers of the three minors who were target shooting with the pistol near the fence which separated the pasture from the woodlands.

The jury, answering special interrogatories, found that the minors’ negligence caused the accident and that although Ta-ravella and Patrick Sanderson’s parents were also negligent, their negligence was not a cause of the accident. The Sander-sons perfected the only appeal, and the principal issue in this court involves Tarav-ella’s liability.

I

Taravella’s operation on the leased 10-acre tract on Barataría Boulevard consisted of approximately 25 stables, which he rented to horse owners for a monthly fee, and an open pasture. This area is shown as Pasture No. 1 on the following sketch, which represents a compilation of several trial exhibits annotated with information established by testimony and photographs:

At the time of the accident in January, 1972 there were numerous homes north of the 16th Street Canal, but the area south of the canal was essentially rural in nature, except for a few residences and business places fronting on Barataría Boulevard. The area behind Pasture No. 1 was generally wooded and overgrown with underbrush for a considerable distance to the east, no clearing or construction having yet begun on the School Board property, and the woods also continued for a considerable distance to the south, up to the point where Lapalco Boulevard was then under construction.

About two or three years before the accident a bridge was built across the deep and 50-foot wide 16th Street Canal, making the woodland area readily accessible to the subdivision residents for walking, exploring, camping, hunting and other recreational uses. At the time of the accident the wooded area was not fenced or generally posted with signs of any kind.

On the morning of the accident a teenager, whose father rented two of Taravel-la’s stables, drove in the company of two other teenagers into Pasture No. 1 to feed his father’s horses. One of the group had a new pistol, and they decided to test it at the rear fence, in an area where a large trash pile (containing junk cars, refrigerators and the like) was located. They took turns firing at the trash pile, at two beer cans, and at a bottle which they had hung from a vine. After one shot at the bottle was fired in the direction of the woods, a scream was heard, and the teenagers rushed across the fence and ditch into the woods and underbrush, where they found two young boys, one of whom was on the ground dead from a gunshot wound.

Earlier, Patrick Sanderson and four companions had gone into the woods, as they and their friends in the neighborhood did almost every day. They crossed the bridge and walked along the canal to a point where they separated, Patrick and a companion continuing toward Landry’s Pasture. When Patrick and his friend came upon a “Keep Out” sign, they turned left and followed a trail which led to Lapalco Boulevard. As they walked along the trail, they heard several shots and stopped for a few minutes, but were unable to determine where the shots came from. When they continued on, a single shot rang out, and Patrick fell to the ground at a point later determined to be 116 feet from the point where the teenagers were shooting the pis-

The Sandersons basically contend Tarav-ella was negligent in failing to prevent the shooting of firearms in Pasture No. 1 and in failing to prohibit shooting and trespassing in Pasture No. 3.

Taravella undisputedly had possession and control of Pasture No. 1, from which the fatal shot was fired. While he testified in deposition that he also was lessee of Pasture No. 3 (where Patrick Sanderson was located when shot) at the time of the accident and had fenced and posted the entire area with signs, the trial court allowed him to change that testimony at trial, after the owner had been dismissed from the suit on a summary judgment based on the deposition. However, we need not resolve’ the complex procedural and substantive questions raised by the change in testimony, because this record provides no evi-dentiary basis for imposing liability on Ta-ravella, even if there was no dispute that he was the lessee at the time.

The extent of the duty, if any, of an owner or possessor of land to prevent injury to persons on the premises or on adjacent property, caused by conduct on the subject premises, is determined by the facts and circumstances of each case.

The Sandersons argue that the accident in this case occurred because Taravella knew or should have known shooting of guns frequently occurred in Pasture No. 1, but was seldom there and had no employee there to prevent or to halt the tacitly permitted conduct. While the operator of a business such as a horse stable conceivably has some duty to his renters or to passersby to stop or to curtail known or frequent dangerous and imprudent use of firearms on his premises, this record does not establish Taravella knew or should have known any shooting had ever taken place in Pasture No. 1.

Taravella and Landry, as well as the corporate owner’s property manager and several other witnesses familiar with the neighborhood, testified that they had never seen anyone discharge a firearm in Pasture No. 1. On the one occasion Taravella had seen anyone with a gun (a boy with a small shotgun) on Pasture No. 1, he had chased him off. Moreover, the teenagers admitted they had never fired guns there before. The only suggestion that shooting had ever occurred in Pasture No. 1 was the fact that the investigating officers found 10 to 20 spent shotgun shells of varying ages near the trash pile. However, it is at least equally probable the spent shotgun shells were thrown into the trash pile which was located close to the fence.

While (as the Sandersons point out) perhaps the accident would not have occurred if Taravella or an employee had been on the premises at the time, this record simply does not establish any reason for Taravella to have anticipated that anyone would shoot a gun in the stable and pasture area. Under the circumstances of this case Tarav-ella had no duty to provide round the clock supervision or to take any other steps to protect against dangerous conduct which he had no reason to anticipate.

There was testimony that shooting did occur in the woods behind Pasture No. 1, particularly during hunting season and particularly in the area toward Lapalco Boulevard, which was far away from existing developed areas. Taravella testified that when shooting did occur near the pastures, he chased the shooters away and even called the police on one or two occasions.

As to any duty to prohibit shooting in Pasture No. 3 or in any of the woods behind Pasture No. 1, an owner or possessor of woodlands generally has no duty to people walking or hunting in the woods without permission to prevent injuries resulting from being shot by other people in the woods without permission. Moreover, any failure to keep shooters out of the unfenced woods has no pertinence here, because shooting from unfenced woods was not the cause of this accident. Arguably, there was a cause-in-fact relationship between failing to fence and the injury, in that if Pasture No. 3 had been fenced or posted with signs, Patrick Sanderson probably would not have entered Pasture No. 3, and the accident would not have happened as it did. However, under the circumstances of this case, Taravella had no duty to Patrick Sanderson to fence Pasture No. 3 in order to keep him from being in the place where he was when he was shot by the unanticipated conduct of a person in Pasture No. 1.

The judgment is affirmed.

AFFIRMED.

      . The claim against one of the minors was compromised prior to trial, and the judgment rendered by the trial court after the jury verdict reduced the recovery by one-third.

      . In oral argument plaintiffs conceded they were not interested in pursuing their assignment of error as to quantum unless this court held Taravella liable. Because we affirm on liability, we do not discuss the quantum of the now. definitive judgment against the pistol shooters.

      . Thus, if the jury had found Taravella liable, the judgment based on that verdict would have to be reversed because of absence of supportive evidence.


author: CHIASSON, Judge.

text:
    DYNAMIC EXPLORATION, INC., et al., Plaintiffs and Appellees, v. SUGAR BOWL GAS CORPORATION, Defendant and Appellant.
    No. 12262.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearings Denied Jan. 16, 1979.
    Writ Refused March 5, 1979.

      Blake G. Arata, John M. McCollam, New Orleans, for plaintiffs and appellees.
    Lis Kow & Lewis, John M. Wilson, Frederick W. Bradley, New Orleans, for defendant and appellant.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

By a written contract dated June 3, 1974, amended on June 16, 1976, Dynamic Exploration, Inc., Comprehensive Resources Corporation, John A. Gordon, Paul LaCoste, Robert W. Polchow, Jack V. Foster and R. L. Roundtree (hereafter collectively known as Dynamic) entered into a gas purchase agreement with Sugar Bowl Gas Corporation (Sugar Bowl) for the sale and purchase of all the natural gas produced from specified mineral leases owned and/or controlled by Dynamic. During July of 1976 Sugar Bowl discovered that through error it had overpaid Dynamic for gas delivered to Sugar Bowl during the period from July, 1974 through May 31, 1976. Sugar Bowl recovered its overpayment by set-off against the amount owed to Dynamic for gas purchased during the months of June, July, August, September and October of 1976. In August, Dynamic brought a mandamus action against Sugar Bowl under the provision of La.R.S. 31:21 but amended its proceedings in October of 1976 to an ordinary proceeding against Sugar Bowl to recover the amount due for the months of June, July, August, September and October of 1976. Sugar Bowl answered'the petition asserting the overpayment and pleading set-off as an affirmative defense. Sugar Bowl also filed a reconventional demand based on its claim for overpayment seeking a judgment for the full amount of overpayment should its set-off be denied and any money awarded Dynamic.

There are two time periods involved in this litigation, one is July 1974 through June 1975 and the other is July 1975 through May 1976. These times are important relative to the error made and to the interpretation of a particular clause in the contract. The error that Sugar Bowl discovered in July of 1976 was its use of the wrong orifice coefficient in the formula utilized to compute the quantity of gas purchased. This incorrect orifice coefficient had been used from the time of the first delivery of gas to Sugar Bowl in July of 1974. Thus from July of 1974 until its discovery in July of 1976, the error caused Sugar Bowl to overpay Dynamic the sum of $294,702.65.

Trial was held on January 14, 1977 and the court took the matter under advisement. On March 14, 1978, the trial court rendered judgment and assigned written reasons. Sugar Bowl was required to pay Dynamic $198,005.62 on the following basis:

1. Sugar Bowl could not question the accuracy of its computations for the period of July 1974 through June 1975 because of a contractual provision and because of Sugar Bowl’s negligence in causing the error and therefore Dynamic was entitled to $162,-480.15.
2. Dynamic was allowed to recover only $26,598.58 paid to royalty owners and $8,926.89 paid in severance taxes to the State for the period of July 1975 through May 1976 since the money Sugar Bowl overpaid in this period occurred during the year preceding Sugar Bowl’s discovery of the error.

The trial court also denied Sugar Bowl’s reconventional demand. It is from this judgment that Sugar Bowl appeals. Dynamic answered the appeal seeking an increase in the award.

Sugar Bowl specified eight separate errors which we have listed as follows:

1. The district court erred in construing subparagraph (h) of Article B-I of the contract as applying to volume calculations of the nature in which the error at issue in this case was made, and in applying subparagraph (h) against Sugar Bowl so as to deny to it the recoupment of the amount paid by it through error to Dynamic.
2. The district court erred, even under its own construction of subparagraph (h) by allowing Sugar Bowl to recover the erroneous overpayment only for the most recent eleven month period, rather than for a twelve month period.
3. The district court erred in finding that Sugar Bowl failed to pay plaintiffs for natural gas it received from them during the months of June, July, August, September and October, 1976, in that the evidence before the court showed that said natural gas had been paid for in effect in advance by Sugar Bowl.
4. The district court erred in finding, without citing any factual basis, that one of Sugar Bowl’s employees was negligent in her computation of the volume of gas delivered, and in finding that her superiors in the company were negligent in not properly supervising her work and checking the accuracy of her calculations.
5. The district court erred in holding that negligence on the part of Sugar Bowl would preclude it from recovering amounts paid to Dynamic through error.
6. The district court erred in considering evidence of a 1975 audit of records regarding Btu content of gas as bearing upon the question of negligence in making or perpetuating the error at issue in this lawsuit, in that such information is irrelevant to the question of negligence regarding the second error, and in that the district court ruled that evidence regarding other errors was irrelevant unless a pattern of negligence could be established.
7. The district court erred in denying to Sugar Bowl its recoupment of those amounts erroneously paid to Dynamic between July, 1975 and May, 1976 which were purportedly paid by Dynamic to third parties (i. e. $26,598.58 to royalty owners and $8,926.89 to the State of Louisiana as severance taxes), in that Dynamic failed to prove with certainty that these amounts were paid to such third parties and were not or could not be recovered from said third parties.
8. The district court erred in failing to hold that Dynamic did not properly mitigate its damages, and in failing to hold that because of the failure to mitigate damages, Dynamic is not entitled to recover the damages sought.

In its answer to Sugar Bowl’s appeal, Dynamic contends that Sugar Bowl’s negligence in causing the error precludes Sugar Bowl from recovering any portion of the overpayment and prays that its award be increased to the full amount of the overpayment.

Because the error made by Sugar Bowl is so interrelated with the contractual obligations of the parties, some background information is necessary to lay the foundation for the dispute. This litigation revolves around the measurement of natural gas. Individual residences have a positive displacement meter that actually measures the volume of gas flowing into the home for use. However, gas measurement at the well site is a different process. The equipment installed in the field is of a different nature than that in a home. Initially certain basic information must be recorded and gathered to obtain the measurement of gas. This data is obtained by equipment attached at or near the well. The equipment will measure pressure base, pressure, temperature, flow temperature, the range of the static pressure gauge, the range of the differential pressure gauge, the type rotation on the clock, the orifice size and the meter tube. This raw data then has to be adjusted.

There is an accepted formula within the oil and gas industry to measure the quantity of gas delivered at the well site. The formula is an equation for computing the flow of gas through an orifice meter. The basic information from the equipment at the well, with no computation, is insufficient to determine the amount of gas delivered.

Critical to the computation is the orifice coefficient. To simplify, the size or diameter of the hole through which the gas flows (the orifice) and the meter readings from the equipment at the well site are the starting point from which is calculated the orifice coefficient. Using the base data a number of variables are then applied to calculate the orifice coefficient. The orifice coefficient is then put into a mathematical formula from which the quantity of gas delivered is determined. An incorrect orifice coefficient would mean the entire calculation is incorrect and therefore would indicate an incorrect quantity of gas.

By contract the parties provided for the installation of equipment needed to measure and test the gas to be delivered to Sugar Bowl. A great deal of the contract is devoted to the measurement and determination of the volume of gas delivered to the buyer, Sugar Bowl.

The contract also includes a specific section relating to the measurement and tests for the gas delivered. In the Measurement and Tests Section of the contract (Article B-I) there are a number of provisions relating to the actual physical measurement of the gas by the means of equipment installed at the well.

Article B-I, (l)(b) provides:

“(b) The volume of gas purchased and sold hereunder shall be measured by orifice meters installed and operated and computations made as prescribed in Gas Measurement Committee Report No. 3, dated April, 1955, of the American Gas Association, as the same may be amended from time to time, or by any other method agreed upon between parties hereto.”

Further, Article B-I, (l)(h) provides:

“(h) Upon request, Buyer shall submit its measurement charts and records to any other party to this contract for examination, the same to be returned within twenty (20) days. Buyer’s measurement charts and records for a given accounting month shall be conclusively presumed correct if no written objection thereto is served on Buyer within the twelve month period following the given accounting month, and at the end of such twelve month period the same may be destroyed.” (Emphasis supplied).

The major issue in this litigation revolves around the interpretation of the contract provisions as it relates to the determination of the volume of the gas delivered. In the instant case a Sugar Bowl employee utilized an incorrect orifice coefficient found in the 1929 Edition of Bulletin E-2, Orifice Meters, instead of the orifice coefficient found in the Gas Measurement Committee Report No. 3 of the American Gas Association as specified in Article B-I, (l)(b) of the contract. By using the wrong orifice coefficient the calculation was wrong and hence the incorrect quantity of gas delivered was derived.

Sugar Bowl argues it should be entitled to recover the overpayment. Dynamic argues that Sugar Bowl is precluded from asserting any overpayment at least for one year on the basis of the contract provision Article B-I, (l)(h) cited above.

Since Sugar Bowl did not discover its miscalculation until July, 1976, Dynamic argues that under Article B-I, (l)(h) the measurement charts and records for the first year, July 1974 through June 1975, are conclusively presumed correct as between the parties and, therefore, despite the overpayment by Sugar Bowl, Sugar Bowl cannot recover this money since they are contractually barred from doing so.

Sugar Bowl argues that Article B-I, (l)(h) does not include the calculations used to determine the amount of gas delivered but rather covers only the physical measurement of the gas taken at the well site.

In reviewing the testimony, we find that all parties were knowledgeable in the field of gas purchase agreements and both parties were in an equal bargaining position when the contract was negotiated and con-fected.

We hold that Article B-I, (l)(h) of the contract does not apply to the type of error involved in this case.

There is no dispute as to the correctness of the raw measurement data obtained at the well site. The testimony reveals that the raw measurement data, alone, is insufficient to determine the quantity of natural gas delivered. Other calculations applying accepted formulas and variables are necessary to arrive at the quantity of natural gas delivered. The error was made in the calculations, not in the raw measurement data.

Article B-I, (l)(h) of the contract does not mention the calculations or the volume of natural gas determined; the conclusive presumption established by this contract provision applies solely to the measurement charts and (measurement) records. This interpretation gives effect to the last sentence which allows Sugar Bowl to destroy the measurement charts and records at the end of the twelve month period. The contract provision is restricted to errors in the measuring equipment which would make it impossible to ascertain the correct quantity of natural gas delivered. In this case the quantity of natural gas delivered, the measurement charts and records, and the amount of the overpayment are not in dispute. Nor is it disputed that the overpayment was due to an erroneous calculation and that Sugar Bowl paid for natural gas it did not receive.

Civil Code Article 2302 provides that when one has paid through mistake, believing himself a debtor, he may reclaim what he had paid. Since the contract provision is not applicable, Sugar Bowl can look back to the beginning of the contract to recover its overpayment.

For these reasons, we reverse the trial court’s decision which precluded Sugar Bowl from seeking the return of its overpayment for July of 1974 through June of 1975.

We affirm the trial court’s decision allowing Sugar Bowl to retain the overpayment for the period of July, 1975 through May, 1976, thereby denying Dynamic its cause of action in seeking to recover from Sugar Bowl the amount already recouped in overpayment. This disposes of the first two specification of errors by Sugar Bowl.

However, the trial court did allow Dynamic to recover $26,598.58 it paid to royalty owners and $8,926.89 in taxes it paid to the State during July, 1975 through May of 1976. We are of the opinion that the trial court erred as to these two items.

First, as to the payment to royalty owners the contract provides:

“ARTICLE B-IV ROYALTIES
“Seller shall bear and pay all royalties, overriding royalties, production payments, and other settlements of whatsoever kind and nature due in respect of production delivered hereunder, and shall hold Buyer harmless against all claims, losses, damages and expenses on account of such settlements.”

Under this provision Dynamic, the Seller, alone is obligated to pay all royalties due in respect of production delivered under the contract. Dynamic’s obligation to pay its royalty owners is based on the amount of money it received from Sugar Bowl. Sugar Bowl originally paid for gas it believed was delivered, but which was not actually delivered. Dynamic paid its royalty owners on the basis of Sugar Bowl’s overpayment. The contract further states that Dynamic holds Sugar Bowl harmless against a11 claims, losses, damages and expenses as a result of paying such royalties. The hold harmless clause is without qualification. Dynamic by contract has agreed to hold Sugar Bowl harmless against Dynamic’s claim for overpayment of royalties. For these reasons, the trial court erred in allowing Dynamic to recover from Sugar Bowl the sum of $25,598.58 that Dynamic paid to its royalty owners during July of 1975 through May of 1976.

Secondly, as to the payment to the State for taxes, we find that La.R.S. 47:1621 is pertinent. It states in part:

“§ 1621. Refunds of overpayments authorized
“A. For the purpose of this Chapter, ‘overpayment’ means a payment of tax, penalty or interest when none was due, or the excess of the amount of tax, penalty or interest paid over the amount due; provided that the power of the collector to refund overpayments shall be as prescribed and limited in this Section.
“B. The collector shall make a refund of each overpayment where it is determined that:
(1) The tax was overpaid because of an error on the part of the taxpayer in mathematical computation; or” * * *

Clearly under this statute Dynamic can obtain a refund from the State for its overpayment of tax under (1) of paragraph (B). For these reasons the trial court erred in allowing Dynamic to recover from Sugar Bowl the amount of $8,926.89 paid to the State for the period of July, 1975 through May, 1976.

As we understand the trial court’s decision as to July, 1975 through May, 1976, the judge upheld Sugar Bowl’s affirmative defense of set-off or compensation for this time period. We agree with this subject to our decision regarding the moneys paid in taxes and royalties discussed above. Under this rationale we also would deny Sugar Bowl’s reconventional demand. This disposes of the seventh specification of error and appellee’s answer to the appeal.

The trial court found that Sugar Bowl and its employee were negligent in making the error which is the subject of this litigation, and that this negligence would also preclude Sugar Bowl from recovering any overpayment for the time period of July, 1974 through June of 1975. Both counsel have pointed out that if negligence is a bar to recovery for the payment of a thing not due, then the trial court’s decision is inconsistent because Sugar Bowl’s negligence is the same for the entire time period in dispute.

The Louisiana Civil Code provides:

“Art. 2301. Obligation to restore thing unduly received
“Art. 2301. He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.”
“Art. 2302. Right to reclaim thing unduly paid
“Art. 2302. He who has paid through mistake, believing himself a debtor, may reclaim what he has paid.”

We find it significant that neither the Civil Code nor the French commentators mentions that a person’s negligence in paying a thing not due would bar his recovery. We are also aware of the line of jurisprudence which holds that there is a defense of negligence to a payment of a thing not due. See Comment, Quasi Contract — Payment in Error — Recovery—Article 2302, Louisiana Civil Code of 1870, 20 Tul.L.Rev. 618-621. See Palmer, Contractual Negligence in the Civil Law — The Evolution of a Defense to Actions of Error, 50 Tul.L.Rev. 1.

C.C. art. 2301 must be read together with C.C. art. 2302. When they are read together, it is found that C.C. art. 2301 is subject to a requirement that the payment has been made through mistake. Rivers v. New Orleans Water Works Company, 35 La.Ann. 822 (1883); See also. Planiol, Civil Law Treatise, Volume 2, Section 840 (LSU translation, 1959). We find that the overpayment in the instant case was made because of a mistake. An employee of Sugar Bowl testified the mistake was made because all of Sugar Bowl’s other contracts referred to the 1929 book and in the daily course of work the 1929 book was still utilized. Because the wrong coefficient was inserted in the computation, Sugar Bowl paid for natural gas not received by it.

Additionally, we adhere to what we believe to be the proper interpretation of the Code and the one which a majority of cases follow, namely that negligence per se is not a bar to recovery for the payment of a thing not due. Central Surety & Ins. Corp. v. Corbello, 74 So.2d 341 (La.App. 1st Cir. 1954); Continental Oil Company v. Jones, 191 So.2d 895 (La.App. 1st Cir. 1966).

Having thus disposed of the issues presented, there is no need to consider Sugar Bowl’s other specification of errors.

For these reasons, the judgment of the trial court is affirmed in part, reversed in part, and it is ordered and decreed that there be judgment in favor of appellant, Sugar Bowl Gas Corporation, and against appellees, Dynamic Exploration, Inc., Comprehensive Resources Corporation, John A. Gordon, Paul LaCoste, Robert W. Polchow, Jack V. Foster and R. L. Roundtree, dismissing appellees’ claims at their costs.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: MARVIN, Judge.

text:
    Lois Lantrip RONCAL, Plaintiff-Appellant, v. COMMERCIAL UNION ASSURANCE COMPANY, Bobby G. Reagan and the Hartford Insurance Company, Defendants-Appellees. James Marvin BRASHER, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY, Bobby G. Reagan, Hartford Accident and Indemnity Company and Lois Lantrip Roncal, Defendants-Appellees.
    Nos. 13718, 13719.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    En Banc. Rehearing Denied Jan. 10, 1979 for docket # 13719.
    Writ Refused Feb. 23, 1979.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant and defendant-appellee, Lois Lantrip Roncal.
    Johnson & Johnson by Don H. Johnson, Monroe, for plaintiff-appellant James M. Brasher.
    Kostelka & Swearingen by Robert W. Kostelka, Monroe, for defendants-appellees, Commercial Union Assur. Co. and Bobby G. Reagan.
    Hudson, Potts & Bernstein by Ben R. Hanchey, Monroe, Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for defendant-appellee, The Hartford Acc. and Ind. Co.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In these consolidated actions arising out of an intersectional collision between two automobiles, the lower court denied the demands of each plaintiff, Ms. Roncal and her gentleman friend, Brasher, who were the sole occupants of Brasher’s car.

The issues which plaintiffs raise are factually unique:

—which plaintiff was driving the Brasher car?

—on which street were the two automobiles being driven?

—were either or both Ms. Roncal and Brasher intoxicated, and if so, with what legal effect on each of them with respect to recovery? and

—did the law authorize, before the amendment of CCP 1810 by Act 156 of 1978, a trial court in a non-jury trial to grant a motion for a directed verdict?

The defendants in each suit included the driver of the other car, Reagan, his liability insurer, and the insurer of the Brasher car which afforded liability coverage to an insured driver and uninsured motorist coverage to all occupants of the Brasher car. These suits also produced third party demands.

In her first petition, Ms. Roncal included Brasher and his insurer as defendants, alleging that she was the driver of the Brasher car proceeding on the favored street when the Reagan car, on the unfavored street, ran the stop sign and caused the collision. After Reagan and his insurer asserted in their answer that Reagan was proceeding on the favored street and that it was the Brasher car which ran the stop sign, Brasher sued Ms. Roncal and his own insurer, as well as Reagan and Reagan’s insurer, alleging in the alternative that Ms. Roncal was on the unfavored street. Ms. Roncal then amended her petition and alleged that Brasher was the driver of his automobile and was proceeding on the favored street.

On the basis of testimony from three witnesses who were not in either automobile, the trial court found Ms. Roncal to have been driving the Brasher car on the unfavored street and to have caused the accident by running the stop sign and colliding with Reagan’s car, which was proceeding on the favored street. The record supports these findings.

Witnesses also testified that they saw a beer can and a glass in the Brasher car after the accident and that Ms. Roncal and Brasher smelled of alcohol and appeared to have been intoxicated after the accident. One witness testified that he saw Brasher holding the beer can after the accident. The trial court expressly noted in written reasons for judgment that one witness testified that when Ms. Roncal, who was wandering around the accident scene, was asked if she wanted to sit down, she answered that she was already sitting down. The lower court expressly rejected the testimony of both Ms. Roncal and Brasher, who vigorously asserted that they had not been drinking. The lower court also noted and apparently rejected the testimony of Brasher and his father that Brasher had been using on some hogs earlier in the day a creosote solution which smelled similar to whiskey.

Brasher returned to his motel from his father’s farm about two hours before the accident. Ms. Roncal was with him at the motel, from where they departed to drive to her nearby home, where he was going to bathe and where they would obtain food which they would prepare for their evening meal upon returning to the motel. No tests for blood alcohol content were requested of or performed on Brasher and Ms. Roncal. The lower court noted that Ms. Roncal’s and Brasher’s recollection of how the accident occurred was based on their erroneous assumption they were traveling their usual route on the favored street toward the home of Ms. Roncal and that Ms. Roncal and Brasher were “astonished to learn that they were crossing [the favored street] and not traveling ... on it.” Notwithstanding Brasher’s denials of drinking in an automobile, Brasher admitted prior convictions for DWI and for being drunk.

The lower court also noted testimony that Ms. Roncal ran the stop sign without the slightest reduction of speed and held there was sufficient evidence to conclude that the accident was attributable to Ms. Roncal’s condition from the consumption of alcohol, which was known to Brasher. The issue on appeal questions the “sufficiency” of the evidence to support the lower court’s findings and conclusions.

The assumption of the risk by, or the contributory negligence of, the guest passenger in such cases is an affirmative defense, the burden of proof of which is on the defendant who so pleads. CCP 1005, Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1976). Prestenbach, supra, states the test as being whether it is more probable than not: (1) that the driver was intoxicated, (2) that her intoxication was a cause of the accident and (3) that the plaintiff guest knew or should have known of the driver’s intoxicated condition. These determinations are made on the “whole of the evidence”, which must take into consideration all of the circumstances and logical inferences of each particular case. Presten-bach, at p. 1334. The test cannot be made more specific or absolute, because a circumstance which exists in one case may not exist in another case.

Considering all of the circumstances shown here, including Ms. Roncal and Brasher not knowing on what street they were traveling, Ms. Roncal maintaining her speed through the stop sign and declaring at the same time to Brasher that she was running a stop sign, we cannot say the lower court committed manifest error. Compare Morris v. Gray, 344 So.2d 106 (La.App. 2d Cir. 1977).

The lower court granted a motion for a directed verdict in each case. In Ms. Ron-cal’s case the judgment was in favor of all defendants. In Brasher’s case, the judgment was in favor of Reagan, his insurer, and Brasher’s UM carrier. The lower court then considered Brasher’s claims against Ms. Roncal and the liability insurer of his vehicle. Proffers were made and heard by the lower court after the motion for directed verdicts were granted and we have reviewed the case and all of the facts shown by the record, as is our constitutional duty.

Plaintiffs argue that a directed verdict simply was not available in a judge trial. Act 699 of 1977 (CCP 1810[A]) provided for a directed verdict in a jury trial but did not prohibit it in a judge trial. This accident occurred on May 6,1976. Trial occurred on May 2,1978. Act 156 of 1978 (CCP 1810[B]) provides for a similar disposition by a motion for dismissal in a judge trial on the grounds that the plaintiff has shown no right to relief upon the facts and the law. This act became effective September 8, 1978. A motion for directed verdict in a judge trial is treated as a motion for dismissal under federal procedure, the source of our CCP 1810. See FRCP 41(b), 50(a), and Wright v. Southwestern Life Ins. Co., 404 F.Supp. 1324, (W.D.La.1975), affirmed 536 F.2d 389 (5th Cir.1976), cert. denied, 429 U.S. 941, 97 S.Ct. 358, 50 L.Ed.2d 310. Authorization for the motion for dismissal may have been contemplated by the legislature in 1977, since it was not prohibited by Act 699 of that year. It is somewhat ironic and inconceivable that a trial judge would be given the power in one instance and not in the other. In any event, Act 156 of 1978 resolved the question for the future.

Where the motion to dismiss is made in a judge trial, federal procedure allows the judge to evaluate and weigh the evidence without requiring that the most favorable inferences be given the plaintiff. Emerson Electric Co. v. Farmer, 427 F.2d 1082 (5th Cir.1970); Weissinger v. United States, 423 F.2d 795 (5th Cir.1970); Blount v. Xerox, 405 F.Supp. 849 (D.C.Cal.1975); 5 J. Moore, Moore’s Federal Practice 1158 (2d ed. 1971). Some states, contrary to the federal practice, equate the motion to dismiss in a judge trial to the motion for directed verdict in a jury trial and require that the most favorable inferences be given the plaintiff. Tillman v. Baskin, 260 So.2d 509 (Fla.1972); Rogge v. Weaver, 368 P.2d 810 (Alaska 1962); Arbenz v. Bebout, 444 P.2d 317 (Wyo.1968).

We need not squarely decide these issues in these consolidated cases or choose which approach should be followed, even assuming the motion to dismiss in a judge trial was available on May 2, 1978, when these cases were tried. These issues may later arise properly postured for our precise determination in other cases. Here the record of the consolidated trial is complete. Proffer of proof was available and was employed below. The consolidated trial did not abruptly conclude with the granting of the motion for directed verdict in the first instance. All factual areas were explored by each litigant who was subjected to, and who was afforded, cross examination. Plaintiffs do not complain that they were prevented from introducing or proffering evidence. Unlike many other jurisdictions, we are constitutionally obligated to review both the facts and the law and are empowered to render any judgment which is just, legal and proper upon the record before us. CCP 2164. The record supports the result below and we find no error of sufficient magnitude to warrant reversal. See American Bank & Trust Co. v. TIL, 340 So.2d 636 (La.App. 2d Cir. 1977).

At the cost of the respective appellant, judgment in each case is AFFIRMED.

      . Brasher as well as Ms. Roncal earlier had testified in a trial in the City Traffic Court that Ms. Roncal was proceeding on the favored street. At the trial in District Court, Ms. Ron-cal was impeached by this testimony and by other prior contradictory statements.

      . “A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

      . “In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”


author: PRICE, Judge. PER CURIAM.

text:
    PASQUIER, BATSON & COMPANY, Plaintiff-Appellant, v. Mildred Hunt EWING et al., Defendants-Appellees.
    No. 13729.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 1978.
    En Banc. Rehearing Denied Jan. 10, 1979.
    Writ Refused Feb. 23, 1979.

      Naff, Kennedy, Goodman, Stephens, Donovan & Parnell by Robert J. Donovan, Jr., Shreveport, for plaintiff-appellant.
    Wiener, Weiss, Madison & Howell by John M. Madison, Jr., Shreveport, for defendant-appellee, John D. Ewing, Jr.
    James A. Van Hook, Shreveport, for defendants-appellees, Patricia E. Hendrick et al.
    B. Frank Mackey, Jr., Little Rock, Ark., and James A. Van Hook, Shreveport, for defendant-appellee, Helen C. Hines.
    Thompson, Sparks, Cudd & Dean by Wood T. Sparks, Monroe, for defendant-ap-pellee, Esther E. Jensen.
    Snellings, Breard, Sartor, Inabnett & Trascher by George M. Snellings, III, Monroe, for defendants-appellees, Robert Ewing, III et al.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Pasquier, Batson & Co. has appealed from the judgment sustaining declinatory exceptions of improper venue as to three of the several parties named as defendants in its suit to recover compensation for professional services rendered. Plaintiff, a public accounting partnership, sued for accounting services allegedly rendered to the stockholders of The Times Publishing Ltd. preceding and in connection with the sale of their stock to the Gannett, Co., Inc. Defendants are those shareholders who refuse to pay plaintiff after billing and amicable demand. The aggregate balance demanded from these parties is $256,441.41. Three of the defendants, namely, Mildred Hunt Ewing, Esther Ewing Jensen, and Robert Ewing III, filed declinatory exceptions of improper venue alleging they were not domiciliaries of Caddo Parish, where suit was filed, and therefore venue is improper as to them under La.C.C.P. Art. 42.

Although the trial court did not give written reasons for judgment in sustaining the exception of venue, it apparently rejected appellant’s contention that the obligation alleged was a joint obligation bringing the suit within the purview of La.C.C.P. Art. 73, which provides exceptions to the general venue provisions of La.C.C.P. Art. 42, and dismissed as of nonsuit the claims against the exceptors.

Appellees filed a motion to dismiss this appeal contending that the judgment rendered below is not a final judgment, but merely an interlocutory decree which is not appealable absent a showing of irreparable injury. We overrule the motion to dismiss.

Appellees cite and rely on the decisions in Broussard v. Liberty Mutual Insurance Company, 204 So.2d 714 (La.App. 3d Cir. 1967); Paul v. Wilcox, 228 So.2d 487 (La.App. 1st Cir. 1969), and Communications C. Net, Inc. v. Burger Chef of La., Inc., 291 So.2d 849 (La.App. 4th Cir. 1974). These cases are inapposite because all three involve an appeal from a transfer order rather than a dismissal. Because the suit below was dismissed as of nonsuit rather than transferred, no review of the correctness of the ruling would lie unless direct appeal is allowed. The well established rule is that a judgment of dismissal without prejudice (i. e. as of nonsuit) is a final judgment from which an appeal will lie. People of Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968); Butler v. Flint-Goodridge Hosp. of Dillard U., 346 So.2d 1131 (La.App. 4th Cir. 1977); Rapides Savings & L. Ass’n v. Lakeview Develop. Corp., 326 So.2d 511 (La.App. 3d Cir. 1976).

Therefore the judgment is appeala-ble and the motion to dismiss is overruled.

The correctness of the trial court’s judgment sustaining the exception of venue hinges on whether the claims made by appellant for its services against the multiple stockholders of the Times, if valid, are claims to enforce a joint or several obligation. If the obligation is “joint” the Caddo Parish venue is proper under La.C.C.P. Art. 73, as an exception to the general venue provision of Art. 42; however, if it is “several” then Art. 42 controls and venue is improper.

In Louisiana promises by more than one obligor are classified as either several, joint, or in solido. La.C.C. Art. 2077. Those agreements wherein several promisors obligate themselves to perform different and distinct acts are classified as several although contained in the same contract. La.C.C. Art. 2078. Joint obligations are characterized by the performance of a single duty by various individuals. Obligations are joint when each of several debtors owes a part of the same thing. La.C.C. Arts. 2080, 2085-2087. See also S. Litvinoff Obligations in Louisiana Civil Law Treatise § 22 n. 71 (1969). Although as a general proposition, joint undertakings obligate the individual obligors to their virile share in proportion to the number of obligors, parties to a joint obligation can adopt another mode of division and the inequality of the respective parts can be as great as the parties desire. La.C.C. Art. 2086. See also 2 M. Plañid, Traité élémentaire de droit civil 718 (La.State L.Inst. trans. 1959), and 14 La.Law Review 850-851.

Whether the rights and obligations of the parties to the contract are joint or several is to be determined by the intention of the parties. Nabors v. Producers Oil Co., 140 La. 985, 74 So. 527 (1917); Shell Petroleum Corporation v. Calcasieu Real Estate & Oil Company, 185 La. 751, 170 So. 785 (1936).

We recognize that venue is a paramount concern in the scheme of the Louisiana Code of Civil Procedure, and that it is difficult in some instances to make a proper determination of whether parties intended a joint or several obligation until after evidence has been presented, and in such an instance, the court may find it necessary to refer the exception to the merits. See Gor don v. Bates-Crumley Chevrolet Co., 182 La. 795, 162 So. 624 (1935), 21 La.Law Review 203-204. This perhaps would have been a more appropriate procedure in this instance. However, the joint stipulation by the parties has relegated this court in resolving the venue question to an examination of the allegations of appellant’s petition and the sales agreement between Gannett and the Times shareholders. At the trial of the exception it was stipulated that the allegations of the appellant’s original petition were to be accepted as true for the purpose of deciding the exception to venue and the only evidence introduced was the written contract between the Times shareholders and Gannett.

The petition generally alleges appellant furnished extensive accounting and related services to the Times and its stockholders in renegotiating an advantageous joint venture contract during 1975 and 1976, in defending a suit by several stockholders seeking a liquidation in 1976, and in the solicitation of a purchaser and consummation of the sale of outstanding stock to the Gannett Co., Inc. in 1976 and 1977.

Appellant alleges, that although it provided its services at the request of the Times or its shareholders, it had no understanding in regard for payment of any specific amount for its services. Appellant alleges it is entitled to payment for services rendered in connection with the negotiation of the joint venture contract and the defense of the stockholders liquidation suit under the doctrine of quantum meruit. It further alleges recovery should be allowed for the services related to the procurement of a buyer and the consummation of the sale of stock because it is a third party beneficiary under a provision of the written agreement between the Times stockholders and Gannett which provides:

ART. II. * * *
(w) Expenses. No expenses of the Sellers incurred in connection with the transactions contemplated by this Agreement (including, without limiting the generality of the foregoing, accounting and legal fees incurred in connection therewith) shall be deemed a liability of Shreveport or any Subsidiary, and the Sellers shall bear all their respective expenses.

Assuming, as we must, the correctness of these allegations of the petition and giving proper consideration to the above provisions of the sales agreement, we conclude the obligation alleged to be owed by the various stockholders named as defendants is a joint rather than a several obligation. Basically the gist of appellant’s petition is that the services were not rendered to the stockholders individually under separate transactions, but were for the benefit of either the Times as a corporate entity or the collective number of shareholders in the disposal of their stock as a group. The allegations and the sales agreement on their face show one common objective of all stockholders in the utilization of appellant’s services, that is to liquidate the Times Corporation by private sale of all stock to a single purchaser.

Appellees contend that the clause of the stock sales agreement with Gannett providing “the Sellers shall bear all their respective expenses” shows an intent for the shareholders to be severally bound for their own accounting cost. They further contend that because the stockholders were each billed on the basis of their pro rata stock ownership, which was not equal, that this precludes the obligation to be classified as joint. We do not find either of these positions sound. We construe the subject provision of the sales agreement to intend that all shareholders shall be jointly liable in proportion to their stock ownership. La. C.C. Art. 2086 permits the parties to vary from the general rule that each is liable for his virile share under a joint obligation.

Appellees rely on the decision in Green, Harding & Co. v. Relf & Co. et al., 14 La.Ann. 828 (1859) as being closely analogous and controlling of the issue presented here. The court in that case did conclude disproportional payments by various stockholders resulted in a several obligation. The decision has not been cited or followed in any subsequent cases in the long period since its rendition. As the decision is conflicting with the provisions of Art. 2086, we do not find it controlling in this instance.

Our views are consistent with the rules established in Nabors v. Producers Oil Co., supra, which appears to be the leading decision addressing the issue of joint versus several obligations.

For the foregoing reasons the judgment appealed is reversed, the exceptions of venue are overruled, and the case is remanded for further proceedings in accordance with law and consistent with this opinion. Costs of this appeal are taxed to appellees. Assessment of all other costs are to await final disposition on the merits.

PER CURIAM.

On application for rehearing exceptors contend our opinion has misconstrued the extent of the stipulation made by the parties in submitting the matter on the basis of the allegations of fact contained in plaintiff’s pleadings together with the stock sales agreement between Gannett and the Times shareholders. We therefore modify our opinion to clarify that exceptors did not stipulate that conclusions of law made in plaintiff’s petition were within the purview of the stipulation made.

We further feel it necessary to make it abundantly clear that our conclusions reached are solely for the purpose of deciding the exceptions of venue and do not have the effect of determining whether or not these exceptors or any other defendants owe any obligation to plaintiff which can only be determined after presentation of evidence on trial of the merits.

Likewise, the effect of the provisions of the stock sales agreement can only be determined after presentation of evidence on trial of the merits.

We continue to adhere to our view that there has been a sufficient showing that the obligation owed for accounting services, if proven, is joint rather than several, and the exceptions to venue should be overruled. The application for rehearing is denied.

      . The general rules of venue are that an action against:
      (1) An individual who is domiciled in the state shall be brought in the parish of his domicile; . . . (La.C.C.P. Art. 42)

      . An action against joint or solidary obligors may be brought in any parish of proper venue, under Article 42, as to any obligor who is made a defendant. . . . (La.C.C.P. Art. 73)