author: MARCUS, Justice. SUMMERS, Justice. CALOGERO, Justice. PER CURIAM.

text:
    In re Judge William H. DANIELS, City Court of Baton Rouge, Parish of East Baton Rouge, State of Louisiana.
    No. 58167.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 14, 1976.

      Sam J. D’Amico, Lewis 0. Unglesby, D’Amico & Curet, Baton Rouge, for Judge William H. Daniels.
    William R. Alford, Jr., Sp. Counsel, New Orleans, for the Judiciary Commission of Louisiana.
   MARCUS, Justice.

Pursuant to the authority set forth in La.Const. art. 5, § 25(C) (1974), the judiciary commission, after complying with rule 23 of the rules of the supreme court, unanimously found Judge William H. Daniels, city court of Baton Rouge, guilty of “persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” The commission recommends to this court that respondent judge be censured and assessed with all witness and transcript costs incurred in the hearing.

On January 15, 1976, the commission issued written notice to respondent advising him of the planned proceedings to inquire into two listed charges against him. Charge I set out factual allegations for a charge of “wilful misconduct relating to his official duty.” Charge II set out the same factual allegations for a charge of “persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” Notice of the hearing to be held before the commission concerning the discipline of respondent was also given. After the hearing, the commission found respondent not guilty of Charge I. Hence, we are concerned solely with the findings of the commission in regard to Charge II in our review of the commission’s recommendation of discipline of respondent.

Authority for the discipline of a judge is set out in La.Const. art. 5, § 25(C) (1974):

On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony. On recommendation of the judiciary commission, the supreme court may disqualify a judge from exercising any judicial function, without loss of salary, during pend-ency of proceedings in the supreme court. On recommendation of the judiciary commission, the supreme court may retire involuntarily a judge for disability that seriously interferes with the performance of his duties and that is or is likely to become permanent. The supreme court shall make rules implementing this Section and providing for confidentiality and privilege of commission proceedings.

In charging respondent with persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, Charge II alleges the following facts:

A. On or about August 19, 1975, giving a defendant, one Robert M. Garner, who was on trial before you, unrepresented by counsel, charged with two separate and distinct traffic violations, a choice as to which charge he would be found guilty of and which charge he would be acquitted of, and thereafter rendering your decision in accordance with the defendant’s choice, thereby giving the appearance of deciding guilt or innocence by a means other than on the evidence before you which it was your duty to do.
B. During the period of May 1, 1975, to August 31, 1975, on numerous occasions you gave the appearance of deciding the guilt or innocence of various defendants on trial before you by the flip of a coin.
C. On or about June 30, 1975, when Police Officer Richard Fancher testified in your court as a witness on his off-duty time in response to a subpoena, you gave the appearance of arbitrarily and capriciously refusing to authorize payment of a witness fee to him.
D. During the past year, more or less, on several occasions you gave the appearance of deciding the guilt or innocence of defendants before your court based upon the secret written ballot of persons present in the courtroom, a procedure which you directed.
E. On or about June 12, 1975, when Police Officer Daniel Altazan, a witness in your court, could not positively identify two defendants whom he had, about nine months before, charged with running red lights, you found those defendants not guilty and then announced, or caused to be announced, that all other persons in the courtroom who had red light citations were free to go. The charges against them were arbitrarily dismissed without trial or hearing, thereby giving the appearance that other police witnesses present were incompetent and could not positively identify the persons whom they had charged with running red lights.
F. On more than one occasion, having found a defendant before you guilty, you questioned the defendant for the purpose of ascertaining the amount of money the defendant had on his person and then, upon being told the amount, you assessed a penalty against the defendant in that amount.
G. On at least one occasion, after trial and before judgment, you questioned the defendant to ascertain, and did ascertain, the amount of money he had on his person and whether he would be willing to pay that amount if found guilty, and having received the defendant’s affirmative reply, you thereupon found the defendant not guilty, thereby giving the appearance of deciding the defendant’s guilt or innocence on factors not relevant to that issue.
H. That, due to the above enumerated incidents as well as others, you manifested at the very least a general attitude of frivolity in the trial of cases before you which has brought the judicial office into disrepute.

Prior to the hearing, several motions and an exception were filed by respondent, viz., a motion for a more definite statement, a motion to strike, a motion to produce and an exception of no cause of action. All motions and the exception were overruled. The commission furnished respondent with a copy of the report of the state police concerning the investigation of the matter and with a list of witnesses to be called at the hearing.

Respondent does not urge before this court any objections to the rulings of the commission on the motions for a more definite statement and to produce; however, he does argue that the commission erred in overruling the other motions and the exception.

In the motion to dismiss, respondent alleges that the commission failed to properly advise him of the name of the complainant in accordance with section 3(b) of rule 23 of the rules of this court. The motion avers that Michael Hill made an oral complaint to the chief executive officer of the commission (judicial administrator) in October of 1975 which was electronically taped and subsequently signed by Hill. The commission answered that it made the preliminary investigation on its own motion and not upon the statement of a complainant.

Section 3(a) of rule 23 is the counterpart of La.Const. art. 5, § 25(C) (1974). Section 3(b) of rule 23 recites:

The judge shall be notified of the investigation, the nature of the charge, and the name of the person making the complaint, if any, or that the investigation is on the commission’s own motion, and shall be afforded reasonable opportunity in the course of the preliminary investigation to present such relevant and/or material matters as he may choose. (Emphasis added.)

Respondent was duly notified on November 5, 1975 that a preliminary investigation was being made by the commission on its own motion, and respondent was afforded reasonable opportunity in the course of said investigation to present such relevant and/or material matters as he might choose. After the preliminary investigation was completed, the commission concluded that a hearing should be instituted and so notified respondent on January 15, 1976. The hearing was held before the commission on February 19 and 20, 1976 and on April 22 and 23,1976. We find no violation of section 3(b) of rule 23. The commission instituted the preliminary investigation on its own motion and not upon the complaint of Michael Hill. Information was supplied to the commission from various sources, including the statement given by Hill. In any event, the commission furnished respondent with a list of the names of witnesses to be called at the hearing. Michael Hill was listed as a witness. Respondent makes no showing that he was prejudiced by the action of the commission in its failure to supply the name of Michael Hill as the person making the complaint.

Respondent argues in support of his motion to strike and exception of no cause of action that he was charged with giving the “appearance” of doing certain acts and that this did not inform him of the nature of the charges against him. We do not agree. The factual allegations particularized respondent’s conduct alleged to be prejudicial to the administration of justice that brought the judicial office into disrepute. We find that these factual allegations were sufficiently specific to fairly inform respondent of the nature of the charges against him. In re Haggerty, 257 La. 1, 241 So.2d 469 (1970). Accordingly, the commission correctly overruled the motion and exception.

At the hearing, sixteen witnesses were presented by the commission and forty witnesses, including respondent, were called on behalf of respondent. After the hearing, the commission made the following findings:

The Commission unanimously finds Respondent guilty of Charge II, which alleges persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, in the following particulars, except that Commissioner Flynn disagrees with the findings of paragraph C:
A. On or about August 19, 1975, allowing Robert M. Garner, on trial for multiple traffic offenses arising from a single incident, to choose the offense to which the accused desired to plead guilty, and dismissing the remaining charge after sentencing the accused on the charge to which the accused pled. The Commission finds that in so doing, Respondent breached his responsibility as judge by deciding the guilt or innocence of an accused by other than the evidence presented in court.
B. On numerous occasions between May 1, 1975 and August 19, 1975, Respondent engaged in conduct in open court which gave the appearance of deciding the guilt or innocence of defendants upon the toss of a coin. The Commission also finds that while Respondent admitted coin toss-ings but denied deciding the outcome of cases on the results thereof, Respondent’s conduct was such as to give the appearance of so deciding cases.
C. On or about June 30,1975, arbitrarily refusing to approve payment of the witness fee due Officer Richard Fancher for off duty court appearance in obedience to summons issued in a traffic violation case. The Commission finds that when Fancher informed the City Prosecuting Attorney that Fancher could not identify the accused because the arrest occurred several months earlier, Respondent’s refusal to approve the witness fee because it had not been earned resulted in Fancher not being paid for his court appearance. The Commission is of the opinion that when Officer Fancher appeared in response to the summons, the appearance fee was due him.
Commissioner Flynn is of the opinion that Respondent acted within his discretionary authority in refusing to approve payment of the witness fee and that to deny this authority would force the courts to award witness fees under all circumstances.
D. On approximately three occasions during late 1974 and the calendar year 1975, Respondent conducted courtroom proceedings which gave the appearance of deciding the guilt or innocence of unrepresented accused parties by jury ballots composed of panels of spectators; in one instance, police officers, in another a civics class, and in another a Cub Scout group. While Respondent denied having decided guilt or innocence on the basis of these jury ballots, he admitted that a favorable verdict from such a jury might result in the mitigation of damages.
E. On or about June 12, 1975, Respondent engaged in courtroom conduct which gave the impression that Respondent dismissed all remaining traffic light violation cases on the day’s docket after the arresting officers failed to identify the accuseds in the first two such cases called. The Commission finds that on the day in question, the first two such cases were submitted by the City Prosecutor without- evidence when the Prosecutor was informed the arresting officers could not make identification, which submission resulted in Respondent having to render verdicts of ‘not guilty’ in the submitted cases. The Commission further finds that respondent then indicated in open court that in view of the failure of the arresting officers to identify the first two such accuseds, Respondent could not find verdicts of guilty in the remaining similar cases on the day’s docket. While the Commission finds some conflicting evidence regarding the details of this specification, the Commission finds that' Respondent’s publicly expressed attitude led the prosecuting officer to submit all similar remaining charges on the docket without presenting evidence or determining whether identification could have been made in the remaining cases. The Commission finds the prosecuting officer was so prompted by the reasonable belief Respondent would not find any traffic light violator guilty that day, regardless of the evidence presented. The Commission finds Respondent’s conduct in this regard highly improper.
F. On numerous occasions Respondent admittedly imposed fines predicated upon the amount of money the convicted party had on his person. While the Commission notes Respondent’s explanation he so acted in recognition of Federal Circuit Court of Appeal jurisprudence concerning the extent to which the needy or indigent may be fined, the Commission finds it a dereliction of judicial duty to assess fines on the amount an individual has on his person at the time of sentencing.
G. That because of the above enumerated incidents, and Respondent’s admitted frequent use of such terms as ‘hey man,’ ‘bread,’ meaning money, ‘what are you holding,’ meaning how much money an accused had on his person, ‘how much do you have in your shoe,’ meaning how much an accused was hiding in his shoe or otherwise carrying in an unusual manner, and ‘cat,’ meaning person, in Respondent’s dialogue with blacks and so-called ‘hippies,’ Respondent created an air of frivolity in Respondent’s court such as to hold the judicial process up to ridicule. While the Commission recognized there is evidence of record indicating Respondent’s conduct in this regard was intended to create an air of informality and to ease and relax defendants, the Commission finds Respondent’s use of such vernacular expressions was of such a nature as to cause the judicial office to be held in disrepute.

Respondent urges that the commission erred in its findings of fact and in its failure to apply the proper standard of proof, i. e., clear and convincing evidence, required in such a matter as here presented.

Before this court can censure, suspend with or without salary, remove from office, or retire involuntarily a judge, proof of the charge or charges must be clear and convincing. In the instant matter, the record must clearly and convincingly establish that respondent was guilty of “persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” La.Const. art. 5, § 25(C) (1974).

After a careful review of the record, we are convinced that the evidence abundantly supports the findings of fact of the commission. The proof is clear and convincing. We will briefly discuss the proof adduced at the hearing and the findings of fact as to each specification of the charge against respondent.

GARNER INCIDENT

Robert M. Garner appeared before respondent on two traffic offenses arising from a single incident. He was not represented by counsel. At the conclusion of the case, Garner was permitted to select the offense of which he desired to be found guilty. After making the choice, he was found not guilty of the other offense. Respondent admitted such action but explained that it was based on his opinion that the accused could not legally be found guilty of both offenses because of double jeopardy. By allowing Garner to choose which of the two offenses he would be found guilty of, respondent abdicated his responsibility of deciding the guilt or innocence of Garner based solely on the law and evidence adduced at trial. At the very least, respondent gave the appearance of allowing other factors, namely, Garner’s will, to dictate the outcome of the proceedings.

COIN FLIPPING

We find that on numerous occasions during the period in question, respondent engaged in conduct in open court that gave the appearance he was deciding the guilt or innocence of defendants upon the toss of a coin. However, evidence does support respondent’s position that, prior to the coin flipping, a decision of guilt or innocence had already been made by respondent and transmitted by him to his bailiff either on a slip of paper or by a pre-arranged signal. Nevertheless, we agree with the commission that respondent’s conduct gave a contrary appearance to the public. Such unjudicial conduct cannot be condoned.

FANCHER INCIDENT — DENIAL OF WITNESS FEE

The record supports the commission’s finding that on or about June 30, 1975, respondent arbitrarily refused to authorize payment of a witness fee ($10.00) due Officer Richard Fancher for an off-duty court appearance in obedience to a subpoena issued in a traffic case. The officer had informed the prosecutor that he could not identify the accused due to the lapse of time between the arrest and trial. This caused respondent to become irritated and resulted in his instruction to deny the payment of the witness fee. Such conduct on the part of respondent could be viewed as the use of pressure to have a police officer identify an accused regardless of how dim his memory might be. We consider such conduct detrimental to the administration of justice and to the judicial office.

JURY BALLOTING

We find that on approximately three occasions during the period in question, respondent conducted courtroom proceedings that gave the appearance of deciding the guilt or innocence of unrepresented defendants by jury ballots composed of spectators. In one instance, these so-called jurors were police officers, in another, a civics class, and in still another, a cub scout group. While the evidence supports respondent’s contention that he had decided the cases before taking these straw ballots, his conduct gave a contrary impression to the public. Such conduct is highly prejudicial to the administration of justice.

DISMISSAL

On one occasion, respondent caused all traffic light violation cases on the day’s docket to be dismissed after the arresting officers in two previous cases were unable to identify the defendants. The dismissals were not based on the lack of evidence in those cases, but rather because of respondent’s irritation caused by the inability of the police officers in the earlier cases to identify the defendants. We agree with the commission that defendant’s conduct in this instance was highly improper.

IMPOSITION OF FINES

On numerous occasions, respondent imposed fines predicated on the amount of money the convicted party had on his person. No attempt was made to ascertain whether the defendants were in fact indigent or whether there were other factors that would justify a fine other than that usually imposed by the court in like instances. The only inquiry was the amount of money on the person of the defendant. This method of imposing fines is improper and prejudicial to the administration of justice.

USE OF SLANG LANGUAGE

Respondent admitted frequent use of such terms as “hey man,” “bread” (money), “cat,” and phrases such as “what are you holding” and “how much do you have in your shoe” (used in reference to the amount of money on the convicted party during the imposition of fines discussed above). The reason for the use of such slang, according to respondent, was to relate with blacks and so-called hippies who came before the court. While we recognize that respondent’s conduct was intended to create an air of informality and a relaxed atmosphere in the courtroom, we find that his expressions were of such a nature as to cause the judicial office to be held in disrepute.

CONCLUSION

We do not mean to imply that we are setting out rules for courtroom decorum, for we realize that the personality and individuality of each judge necessarily reflect in his conduct of judicial proceedings before him. Although not controlling in this matter at the time of respondent’s alleged improper conduct, canon 14 of the canons of judicial ethics provided as follows:

Justice should not be moulded by the individual idiosyncrasies of those who administer it. A judge should adopt the usual and expected method of doing justice, and not seek to be extreme or peculiar in his judgments or spectacular or ■sensational in the conduct of the court.

The conduct of a judge during the course of a trial must be such as to foster confidence in the administration of justice. Persons charged with offenses are understandably uneasy in the presence of the court. They should not be made to feel that their trial is a laughing matter. The trial should not be conducted in such a light-hearted manner as to give the impression that it is a farce. This would make a mockery of justice. Nor should the impression be given that the decision of the judge is based on anything other than the law and evidence adduced at trial. The flip of a coin and the use of a straw poll of the audience as jurors give such an impression even though a decision had already been reached by the judge. Generally, a judge should conduct himself in the courtroom in a manner which promotes public confidence in the integrity and impartiality of the judiciary. Public confidence in the judiciary is eroded by irresponsibility or improper conduct in the courtroom.

We conclude that respondent was guilty of persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute. La.Const. art. 5, § 25(C) (1974). We concur in the recommendation of the commission that respondent judge should be censured.

Respondent takes issue with the recommendation of the commission that he be assessed with all witness and transcript costs incurred in the hearing. He urges that this is too harsh of a penalty under the circumstances. We do not agree.

Section 22 of rule 23 of the supreme court rules provides:

The commission may tax costs, subject to review by this court.

Respondent Judge was found guilty of all specifications of Charge II. Moreover, much of the testimony of the forty witnesses called on his behalf was cumulative. Under these circumstances, we are unable to say that the commission abused its discretion in assessing respondent with the specified costs. Hence, we concur in the commission’s recommendation in this respect.

DECREE

On recommendation of the judiciary commission, it is ordered that Judge William H. Daniels of the city court of Baton Rouge be censured for his persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute and that he be assessed with all witness and transcript costs incurred in the hearing before the commission.

SUMMERS, Justice.

Because of the doubtful and tenuous proof on some charges, I do not agree that respondent should be cast for costs. However, his conduct does warrant censure.

CALOGERO, Justice.

Justice Summers expresses my sentiments precisely.

ON APPLICATION FOR REHEARING

PER CURIAM.

The costs are hereby fixed at $1,000. Otherwise, the application for rehearing is denied.

      . Except that one commissioner disagreed with the findings of paragraph C of Charge II.

      . Five commissioners recommend that respondent judge be censured and assessed with all witness and transcript costs incurred in the hearing. Three commissioners recommend that respondent judge be suspended without salary for two months and assessed with all witness and transcript costs incurred in the hearing. One commissioner recommends discipline and assessment of all witness and transcript costs incurred in the hearing, the nature of the discipline to be determined by the supreme court.

      . While finding respondent not guilty of Charge I, the commission stated that it found that he “committed the acts specified in Charge I, with the exception of specification G, but that Respondent so acted without illegal, immoral or evil motive, intent or purpose.”

      . See rule 23 of the rules of the supreme court adopted to implement said constitutional provision.

      . Section 3(a) of rule 23 provides:
      The Commission, upon receiving a complaint, not obviously unfounded or frivolous, alleging facts indicating that a judge is guilty of willful misconduct relating to his official duty, or willful and persistent failure to perform his duty, or persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, or conduct while in office which would constitute a felony, or that he has a disability that seriously interferes with the performance of his duties and said disability is or is likely to become permanent, shall make a preliminary investigation to determine whether a hearing should be held on the question of the discipline of the judge. The Commission may make such preliminary investigation on its own motion. (Emphasis added.)

      . Formerly, La.Const. art. 9, § 4(B) (1921), as amended by Act No. 661 of 1968, provided: A justice or judge may be removed from office or retired involuntarily for wilful misconduct relating to his official duty or wilful and persistent failure to perform his duty, or for habitual intemperance, or for conviction, while in office, of a felony. A justice or judge may be retired involuntarily for disability that seriously interferes with the perform-anee of his duties and that is, or is likely to become, of a permanent character.
      Clear and convincing evidence was the standard of proof required under this provision of the former constitution. In re Haggerty, 257 La. 1, 241 So.2d 469 (1970). We consider the standard of proof required in disciplinary proceedings to be the same under the new constitutional provision.

      . An example of the air of frivolity attested to by respondent himself was his statement in shoplifting cases where pleas of guilty were entered. He testified:
      . . I have asked them on the shoplifting cases where they have pled guilty or why in the world would you want the reputation with stealing such trivia as a $6 item, you have the mentality of someone who would break into a boxcar and end up in Angola if you address it to yourself to bigger things of life. You could be Chairman of the Board of Pennsylvania Railroad, steal the whole railroad and the railroad then gets bailed out by the federal government, yes, I have engaged in that type of levity. .

      . A new code of judicial conduct became effective on January 1, 1976. Canon 2(A) of the new code of judicial conduct provides:
      A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Elijah HILL.
    No. 57998.
    Supreme Court of Louisiana.
    Nov. 8, 1976.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
    Clement F. Perschall, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

We granted writs in this case on application of the state. The state complains that the trial court erred in granting a motion to quash a bill of information which recited that defendant is a multiple offender and should have his sentence enhanced under the provisions of La.R.S. 15:529.1.

The motion to quash urges res judicata and/or autre fois acquit.

The issue arose in this manner. Defendant waived jury trial, was tried and found guilty of the crime of possession of heroin in violation of R.S. 40:966. He was sentenced to serve ten years imprisonment at hard labor on November 26, 1975. On that same date, the state filed a bill of informa-. tion (a multiple bill) charging that he had been convicted of four prior felonies.

On February 11, 1976 the court took the matter up and determined that the defendant was “not guilty as a multiple offender” for the reason that the documents presented by the state, as allowed by R.S. 15:529.-1(F) were not properly authenticated as required by that statute and our decision in State v. Washington, 322 So.2d 185 (La. 1975).

Within less than a month thereafter (on March 4, 1976) the state filed a second identical bill of information, again charging defendant as a multiple offender (four felony convictions are recited prior to the heroin possession conviction). It was to this re-billing that defendant filed the motion to quash. The granting of the motion by the trial court on March 30, 1976 is under review at this time.

The sole issue before us is whether the state may re-multiple bill a defendant under the circumstances hereinabove related without doing violence to the concept of res judicata (and/or autre fois acquit).

There had existed a minority view in the jurisprudence of this country which denied applicability of the doctrine of res judi-cata to judgments in criminal cases. 147 A.L.R. 994.

That view was apparently followed in Louisiana in the case of Town of St. Martinville v. Dugas, 158 La. 262, 103 So. 761 (1925), wherein this Court stated that in Louisiana “the doctrine of res judicata does not apply to criminal prosecutions.” However, since 1956 and the decision in State v. Latil, 231 La. 551, 92 So.2d 63 (1956) it has been evident that in this state res judicata does have a place in the criminal law. In that case, this Court, in reviewing the sustaining of the motion to quash an identical subsequently-filed bill of information, held that a ruling sustaining a plea of prescription had terminated a prosecution for possession of narcotic drugs. That court stated:

“It is obvious, therefore, that whether you label defendant’s motion a plea in bar, a plea of res judicata, or an estoppel, (see United States v. Carlisi, D.C., 32 F.Supp. 481; United States v. Halbrook, D.C., 36 F.Supp. 345; United States v. Morse, D.C., 24 F.2d 1001; United States v. Simon, 3 Cir., 225 F.2d 260), as was so aptly stated by Mr. Justice Holmes in the Oppenheimer case, ‘one judgment that he is free as a matter of substantive law is as good as another. A plea of the statute of limitations is a plea to the merits * * *, and however the issue was raised in the former case, after judgment upon it, it could not be reopened in a later prosecution. * * * The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the 5th Amendment was not intended to do away with what in the civil law is a fundamental principle of justice (Jeter v. Hewitt, 22 How. 352, 364, 16 L.Ed. 345, 348) in order, when a man once has been acquitted on the merits, to enable the government to prosecute him a second time.’ United States v. [Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 69, 61 L.Ed. 161].”

The foregoing jurisprudence, however, does not resolve the question posed in this ease. We must here examine the nature of the court’s ruling finding defendant not guilty as a multiple offender.

R.S. 15:529.1(D) provides essentially that after the district attorney has filed a bill of information “accusing (a) person of a previous conviction,” the court shall cause the person to be brought before it, “shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof,” and “shall require the offender to say whether the allegations are true.” If the defendant “denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and the judge shall fix a date to inquire whether the offender has been convicted of a prior felony or felonies, . . . .” If the judge finds that he has been convicted of the prior felony or felonies “the court shall sentence him to the punishment prescribed” in the statute, and shall vacate the previous sentence if already imposed.

It is apparent from the language of the statute that the bill of information “accusing the person of a previous conviction” is not a charge of a criminal offense which is subject to our Louisiana and federal constitutional bans on double jeopardy. And this Court has so held that principles of double jeopardy do not apply to multiple offender bills of information. State v. Bullock, 329 So.2d 733 (La.1976); State v. Williams, 322 So.2d 177 (La.1975); State ex rel. Williams v. Henderson, 289 So.2d 74 (La. 1974); State v. Boatner, 304 So.2d 661 (La. 1974). We have also made it clear that a multiple bill proceeding is in the nature, merely, of an enhancement of penalty rather than of a prosecution for a crime. State v. James Williams, 326 So.2d 815 (La.1976); State v. Willie Alexander, Jr., 325 So.2d 777 (La.1976); State v. Jackson, 298 So.2d 777 (La.1974).

What we have in the case at bar is a hearing at which the trial judge as per R.S. 15:529.1(D) “inquired into” whether the defendant had been convicted of prior felonies, and “tried” defendant as to the truth of the content of the multiple bill. Finding the state’s evidence of the prior convictions insufficient simply because the submitted documents had not been properly authenticated, and notwithstanding indication that defendant was nonetheless probably a quadruple offender, the court, while finding defendant “not guilty,” in effect determined that defendant could not, at that time at least, have his sentence enhanced.

Principles of res judicata dictate that a fact or matter distinctly put in issue and directly determined by a court of competent jurisdiction cannot thereafter be disputed between the same parties, and, as earlier indicated, res judicata is applicable in criminal prosecutions.

A hearing on a multiple offender bill is a trial in only a very broad sense. It is more pertinently an inquiry into defendant’s pri- or criminal conviction or convictions, as part of the sentencing process. Technical inadequacies in the state’s documentation at such “trial” mandates a negative determination by the court. On the other hand, such a determination is not a conclusive one “on a fact distinctly put in issue,” as is the case where, relative to prosecution for commission of a criminal offense, there is a judgment that defendant be freed “as a matter of substantive law” (State v. Latil, supra).

We hold therefore, that res judicata is not applicable here.

We do not mean to suggest that there can be no ruling of any character on the trial of a multiple offender bill which is entitled to finality in the res judicata sense, such for instance, as a ruling that “more than five years have elapsed since expiration of the maximum sentence or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he had been convicted.” R.S. 15:529.1(C). Then, too, there might arise a case in which there is put at issue, and seriously contested, whether the defendant is in fact the identical person whose convictions, properly proven, are described in a multiple bill, and in a re-multiple bill.

A court determination, favorable to a defendant that a given earlier offense was legally stale or that described convictions were suffered by a person other than defendant, just might as a matter of law be entitled to finality and be the proper subject of res judicata. We need not, however, answer that question in this case.

Accordingly, the trial court’s granting of defendant’s motion to quash the multiple offender bill is reversed and the case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

MARCUS, J., concurs.

      . Article I, § 15, Louisiana Constitution of 1974 provides:
      “No person shall be twice placed in jeopardy for the same offense . .
      The Fifth Amendment to the United States Constitution provides:
      “. . Nor shall any person be subject for the same offense to bei[ng] twice put in jeopardy of life or limb.”

      . The trial judge stated:
      “That’s the situation we have here; where we have documents that have not been properly authenticated, but which certainly point up that the defendant is at least a quadruple offender under the law . . .


author: PER CURIAM.

text:
    STATE of Louisiana v. Rickey CARTER.
    No. 58348.
    Supreme Court of Louisiana.
    Nov. 18, 1976.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana ex rel. Paul E. BOETTCHER v. Hon. Robert M. FLEMING, Judge, 16th Judicial District, St. Mary Parish, et al.
    No. 58950.
    Supreme Court of Louisiana.
    Dec. 7, 1976.
   In re: Paul E. Boettcher, applying for writ of mandamus.

Writ granted in part, denied in part: The trial court’s order of July 21, 1976 regarding the prisoner’s receipt of mail is modified so as exempt attorney-prisoner mail, subject to the restrictions of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In all other respects, the writ is denied.


text:
    STATE of Louisiana v. Paul E. BOETTCHER.
    No. 58949.
    Supreme Court of Louisiana.
    Dec. 7, 1976.
   In re: Paul E. Boettcher, applying for writ of mandamus and stay order.

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


text:
    STATE of Louisiana v. Paul E. BOETTCHER.
    No. 58959.
    Supreme Court of Louisiana.
    Dec. 7, 1976.
   In re: Paul E. Boettcher, applying for writ of review and stay order.

Writ denied. No merit in application.


text:
    LOUISIANA NATIONAL LEASING CORPORATION v. FAMILY POOLS, INC., et al.
    No. 58834.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Sherard Fabacher and Peter Fa-bacher, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. Robert HOWARD v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58767.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Robert Howard, in proper person, applying for writs of habeas corpus and certiorari.

Writ denied. There is no error of law in the action of the trial judge accepting the guilty plea without capital punishment.


text:
    Willie James NORRIS et al. v. STATE of Louisiana et al.
    No. 58787.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Willie Norris, individually and on behalf of Jamie Norris and Louella Norris, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu.

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


text:
    In re Robert Earl JONES, Applying for Adoption.
    No. 58817.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Vernard George Moore applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 337 So.2d 283.

Writ denied. On the facts found, the judgment of the court of appeal is correct.


text:
    Laura Claudette Culpepper RUSSELL and Armstrong R. Conley v. Louis L. CULPEPPER.
    No. 58821.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Laura Claudette Culpepper Russell, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Laura Claudette Culpepper RUSSELL et al. v. Louis L. CULPEPPER.
    No. 58813.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Armstrong R. Conley, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoch-es. 337 So .2d 226.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    William Thomas BARHAM v. Mary Brodnax BARHAM.
    No. 58820.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Mary Brodnax Barham applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Morehouse. 337 So.2d 289.

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


text:
    STATE of Louisiana ex rel. Byron PARKER v. STATE of Louisiana.
    No. 58822.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Byron Parker applying for writ of habeas corpus and remedial writs of certio-rari.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Claude WOODS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58824.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Claude Woods applying for writ of certiorari and habeas corpus.

Application denied. The allegations of the petition do not warrant the relief demanded.


text:
    STATE of Louisiana ex rel. Dwight SMITH v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58827.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Dwight Smith applying for writs of habeas corpus, certiorari, prohibition and mandamus.

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


text:
    STATE of Louisiana v. Andrew HARDING.
    No. 58828.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: State of Louisiana applying for supervisory writs.

Not considered. Untimely filed.


text:
    STATE of Louisiana ex rel. Eric JOHNSON, in proper person v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58841.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Eric Johnson, applying for remedial writs.

Writ denied. No error in ruling of trial judge. See Colloquy.


text:
    STATE of Louisiana ex rel. Robert Paul DUPLANTIS v. Ross D. MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58842.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Robert Paul Duplantis applying for writs of mandamus, habeas corpus, cer-tiorari and prohibition.

Writ denied. There is no error in the ruling of the trial judge.


text:
    GOLDEN LANE MARINE, INC. v. BOBBEN FABRICATORS, INC. and Summit Insurance Co. of New York.
    No. 58844.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Bobben Fabricators, Inc. and Summit Insurance Co. of New York applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 338 So.2d 116.

Application denied. The result is correct.


text:
    STATE of Louisiana ex rel. Joseph JONES, Jr., and Ulysses Smith v. Hon. Matthew BRANIFF, Judge, Section "B”, Criminal District Court, Parish of Orleans.
    No. 58894.
    Supreme Court of Louisiana.
    Dec. 8, 1976.
   In re: Joseph Jones, Jr., and Ulysses Smith, applying for writs of mandamus.

Writ denied. Application is moot. Habe-as writ in trial court was denied on 12/3/76.


text:
    STATE of Louisiana v. Leonard FAGOT.
    No. 58953.
    Supreme Court of Louisiana.
    Dec. 9, 1976.
   In re: State of Louisiana applying for writs of certiorari, prohibition and mandamus.

Writ denied. The applicant has not complied with the rules of this Court and the applicant has not made a sufficient showing to warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Clarence "Bill” McCORD.
    No. 58971.
    Supreme Court of Louisiana.
    Dec. 10, 1976.
   In re: State of La. through District Attorney, Ossie Brown, applying for supervisory writs.

Granted. The ruling of the trial judge holding that the State witness Bryan Bush cannot testify is reversed and set aside. This case is distinguishable from State v. Donahue, 315 So.2d 329 (La.1975) in that Bush is no longer associated with the District Attorney’s Office. State v. Donahue did not hold that the District Attorney was incompetent to testify — only that he should be recused.


text:
    STATE of Louisiana v. William COX.
    No. 58835.
    Supreme Court of Louisiana.
    Dec. 10, 1976.
   In re: State of Louisiana applying for writ of certiorari.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Charles R. Ward, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 22nd day of December, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further' ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 4th day of March, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Cleveland JOHNSON.
    No. 58996.
    Supreme Court of Louisiana.
    Dec. 15, 1976.
   In re: Cleveland Johnson, applying for supervisory writs of certiorari, mandamus and prohibition.

Writ denied. There is no abuse of discretion in the ruling of the trial judge.


text:
    STATE of Louisiana v. Lyonette M. LEWIS.
    No. 58573.
    Supreme Court of Louisiana.
    Dec. 20, 1976.
   In re: Lyonette M. Lewis applying for writs of certiorari, prohibition and mandamus.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Andrew Búcaro, Judge Ad Hoc, Criminal District, Court of the Parish of Orleans, to transmit to the Supreme Court of Louisiana, as soon as possible, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Lewis W. PALMER.
    No. 58740.
    Supreme Court of Louisiana.
    Dec. 20, 1976.
   In re: Lewis W. Palmer, applying for certiorari.

Writ denied. A review of the trial evidence shows there is no merit in the application.


text:
    STATE of Louisiana v. Dorothy ROBERTSON and Nettie Pearl Jones.
    No. 58957.
    Supreme Court of Louisiana.
    Dec. 20, 1976.
   In re: Dorothy Robertson and Nettie Pearl Jones applying for writ of habeas corpus.

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


text:
    STATE of Louisiana v. Dorothy ROBERTSON and Nettie Pearl Jones.
    No. 58958.
    Supreme Court of Louisiana.
    Dec. 20, 1976.
   In re: Dorothy Robertson and Nettie Pearl Jones applying for writ of mandamus.

Writ denied. Considering the suppression hearing is presently in progress as to whether or not the confession was freely and voluntarily given, we find no abuse of discretion at this time of the trial judge’s denial of a protective order.


text:
    STATE of Louisiana v. Dorothy ROBERTSON et al.
    No. 59029.
    Supreme Court of Louisiana.
    Dec. 20, 1976.
   In re: State of Louisiana through the District Attorney, Ossie Brown, applying for supervisory writs.

Writ denied. This court will not interfere with the orderly process of the trial proceedings.


text:
    STATE of Louisiana v. John R. MUDGE.
    No. 59039.
    Supreme Court of Louisiana.
    Dec. 20, 1976.
   In re: John R. Mudge applying for supervisory writs and stay order.

Writ Denied. We find no merit in the application.


text:
    Joe Dolph WILLIAMS v. TOWN OF MANY et al.
    No. 59036.
    Supreme Court of Louisiana.
    Dec. 21, 1976.
   In re: Joe Dolph Williams, applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. The showing made is insufficient to warrant exercise of our supervisory jurisdiction.


text:
    James WARD et al. v. WEST CARROLL POLICE JURY et al.
    No. 59037.
    Supreme Court of Louisiana.
    Dec. 21, 1976.
   In re: James Ward et al., applying for writs of certiorari, prohibition and mandamus and for stay order.

Writ refused and stay order recalled. The showing is insufficient for the exercise of our supervisory jurisdiction.


author: LOTTINGER, Judge.

text:
    Mrs. Doris STROTHER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 10938.
    Court of Appeal of Louisiana, First Circuit.
    May 14, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writ Refused Feb. 11,1977.
    Ralph Brewer and Michael W. McKay, Baton Rouge, for plaintiff.
    Peter T. Dazzio, Frank A. Fertitta, Baton Rouge, for defendants.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This appeal arises out of an automobile accident wherein the automobile in which plaintiff, Mrs. Doris Strother, a guest-passenger, rear-ended an automobile being towed by a pickup truck at the point where the pickup truck and the towed vehicle had stopped to make a left turn. Plaintiff originally sued Don J. Meaux, who was riding behind the steering wheel in the automobile which was rear-ended, and State Farm Mutual Automobile Insurance Company, the insurer of Ira Strother, her husband, who was the driver of the car in which she was a passenger. Thereafter, plaintiff filed an amending and supplemental petition making Davie Meaux, Jr., the father of Don J. Meaux, a minor at the time of the accident, a defendant along with the Continental Insurance Company, his insurer. In the amending and supplemental petition, plaintiff dismissed State Farm as a defendant, but then the defendants filed a third party demand against State Farm and Ira Strother. The Trial Court rendered judgment in favor of the defendants dismissing plaintiff’s demand and also in favor of the third party defendants. Plaintiff appealed the judgment dismissing the suit against Don J. Meaux, Davie Meaux, Jr. and the Continental Insurance Company. There is no appeal by the defendants-third party plaintiffs against the third party defendants, Ira Strother and State Farm.

The Trial Judge did not favor us with written reasons for judgment, but because he found in favor of the defendants, we must conclude that his factual findings were those most favorable to defendants.

The accident happened in West Baton Rouge Parish on U.S. Highway 190 near the State Capitol Dragway. At the point of the collision, U.S. 190 is a four lane highway with two lanes for west bound traffic and two lanes for east bound traffic divided by a center guard rail. Larry Meaux was driving a pickup truck and by the use of a tow bar was towing a 1968 Chevrolet Chevelle in which Don J. Meaux sat behind the wheel in order to operate the lights and be prepared to steer in case the Chevelle became disconnected from the pickup truck. These two vehicles had exited the State Capitol Drag-way and were headed west in order to make a left turn so that they could turn around and then head back east toward Baton Rouge. They had stopped in the inside lane at a crossover while waiting for oncoming traffic headed toward Baton Rouge to clear so that their turn could be made safely. A large truck-trailer combination traveling in the inside lane behind the Meaux vehicles was able to move over into the outside or right hand lane and pass, but the automobile driven by Ira Strother and in which plaintiff was a passenger, also traveling in the inside lane, did not change lanes or stop and ran into the rear of the Chevelle which was in tow causing injuries to plaintiff. The speed limit at the point of the accident is 45 miles per hour, and defendants’ witnesses, as well as plaintiff, testified that Ira Strother was traveling 58 or 60 miles per hour immediately prior to the accident. The accident happened between 8:00 P.M. and 9:00 P.M. and there is evidence in the record that the emergency flashers were engaged on the Chevelle and that the lights of the pickup truck were lit.

Plaintiff-appellant contends that the Trial Judge erred in not finding negligence oh the part of Don Meaux based on the theory that he violated LSA-R.S. 32:104 which in general provides the rules for making turns from highways and the signals required. It must, however, be pointed out that the Meaux vehicle had not commenced its turn, and was still in its lane of travel. We find this statute not to be applicable. Southall v. Employers Liability Assurance Corp., 203 So.2d 718 (La.App. 3rd Cir. 1967), writ refused, 251 La. 673, 205 So.2d 440 (1968).

Considering that the speed limit was 45 miles per hour at the point of collision, that the emergency flashing lights were operating as a warning to following traffic to proceed with caution, that at least one vehicle saw the flashing lights and passed the Meaux vehicle by use of the right hand lane, that Mr. Strother was traveling between 58 and 60 miles per hour, and that he did not see what he should have seen, we find no error on the part of the Trial Judge in finding for the defendants. Further, however, we are of the opinion that the sole proximate cause of the accident was the negligence of Mr. Strother.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs are to be paid by appellant.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Robert Lee PARKER v. SOUTH LOUISIANA CONTRACTORS, INC. et al.
    No. 10991.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 1976.

      Steven B. Witman, of Koerner & Babst, A Professional Law Corp., New Orleans, for plaintiff-appellant.
    A. W. Eggleston, Inc. and Employers Ins. of Wausau, James E. Moore, of Franklin, Moore & Walsh, Baton Rouge, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is a devolutive appeal from a judgment sustaining the motion of A. W. Eggle-ston, Inc., (Eggleston) one of the defendants, and its insurer, Employers Insurance of Wausau, for a summary judgment and dismissing the suit of Robert Lee Parker, plaintiff, as to the named parties, reserving to the plaintiff his right to proceed against the other defendants, said judgment having been signed on March 12, 1976. We reverse and remand.

On April 30, 1975, the plaintiff brought suit to recover for personal injuries allegedly sustained on August 5, 1974, as a result of a fall. On the date in question the plaintiff was employed by Atlas Truck Lines, Inc., as a truck driver to deliver a load of pipe casing to the oil drilling site operated by defendant Eggleston, with an intermediate point at the Butte-LaRose landing on the Atchafalaya River. Upon arrival at the landing, the plaintiff drove his loaded truck onto a barge allegedly owned and operated by Soloco Pipeline Contractors, Inc., one of the defendants. The barge was then pushed by a Soloco tug to a landing on the Atchafalaya River leased or owned by defendant, Martin Exploration Corporation, or by Eggleston. The barge arrived at the landing at 11:20 p. m. The landing was about V) mile by way of a plank road from the drilling rig operated by Eggleston. It was while the plaintiff was assisting in the unloading of the barge that he allegedly fell through an opening in the unlighted ramp which was being used for the egress of the Atlas truck, causing severe injuries to his right foot and the other injuries.

The plaintiff alleged that the landing was under the control of Eggleston as lessee (or owner), and that Eggleston negligently failed to provide a safe place for the plaintiff to work in that the landing was unlighted or poorly lighted, and was guilty of other acts of negligence in connection with the egress and the landing. The plaintiff also alleged negligence in the manner in which he was cared for following his initial injury.

The plaintiff directed interrogatories to Eggleston, which were answered in a way that Eggleston disclaimed any connection with plaintiff’s injury. There are two depositions .of the plaintiff filed in the record, but they do not definitely connect defendant Eggleston with the accident or with the barge, tug or landing. In support of its motion for summary judgment, defendant Eggleston filed an affidavit of Burton Merritt, its Vice President, who deposed that it had no supervision or control over the barge or the tug, that it had no supervision or control “nor ownership nor interest in the construction or maintenance of the landing where this accident allegedly occurred”, that it had no supervision or control over “the means of egress or ingress from the barge nor to any portion of the land where the barge was docked.” Deponent then deposed that “A. W. Eggleston, Inc. merely held a drilling contract with Martin Exploration Corporation and deponent’s company held no contract with any other party involved in the litigation;” and that defendant Eggleston did not “engage or attempt to engage the services of the tug and/or barge for the transportation.”

Plaintiff contends that a genuine issue of material facts exists, and that the trial judge erred in rendering a summary judgment. A summary judgment may not be rendered when there is a genuine issue of a material fact which must be resolved; such remedy is not a substitute for a trial; LSA-C.C.P. art. 966; Batson Lumber Co., Inc. v. Yates, 319 So.2d 853 (La.App. 1st Cir. 1975). The burden of proof rests on the party seeking a summary judgment to show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law, with all doubts to be resolved against the granting of a summary judgment and in favor of a trial on the merits. Aymond v. Missouri Pacific Railroad Company, 179 So.2d 460 (La.App. 3 Cir. 1965).

The affidavit submitted by Eggleston attempts to negate any connection of it with the alleged accident to the plaintiff, but the affidavit does not address itself to all of the facts and issues that are involved in the lawsuit.

The two depositions of the plaintiff submitted in rebuttal to the motion for summary judgment clearly raised a serious dispute as to several material issues of fact.

Plaintiff’s position is that A. W. Eggle-ston, Inc. is liable to him for a failure to provide a safe place to work, including safe egress from the barge, for failure to provide a landing free from vice or defect in its construction or maintenance, and for failure to provide prompt and proper medical attention to the plaintiff.

There are material issues of fact which are disputed and, consequently, summary judgment is not a proper disposition of this case. Any doubts as to the existence of a material factual issue are to be resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Chisholm v. Stevens, 231 So.2d 640 (La.App. 4 Cir. 1970), writ ref. 255 La. 910, 233 So.2d 561; Wilkinson v. Husser, 154 So.2d 490 (La.App. 1 Cir. 1963), writ ref. 245 La. 60, 156 So.2d 603.

We have reviewed the record and find that the facts concerning the manner of the unloading of the barge are in dispute; the facts concerning the lighting on the landing site are in dispute; the facts concerning the degree of involvement of defendant Eggle-ston in the unloading are disputed. There is also a disputed fact as to whether or not defendant Eggleston had already assumed supervision over the landing area and the drilling site. The plaintiff’s statements in his deposition that defendant Eggleston’s supervising employee, the tool pusher, failed to provide prompt and proper medical assistance is an issue that cannot be resolved at this stage of the proceedings. It is obvious to us that the case is not in a posture for summary judgment. This is a personal injury action involving possible multi-tortfeasors in which none, some, or all of the alleged tortfeasors might be responsible for the alleged injuries suffered by the plaintiff. It is the kind of case where all of the parties should remain before the court until its final disposition. The “ten little Indians” method of eliminating defendants in a lawsuit is not an acceptable or desirable practice. The parties are entitled to their day in court with all of the parties present to present pertinent evidence at the proper time. The trial judge committed manifest error in sustaining the motion for summary judgment.

For the foregoing reasons, we reverse the judgment of the trial court sustaining defendant’s motion for summary judgment and the case is remanded for further proceedings not inconsistent with the views herein expressed. The defendants-appel-lees are cast for all costs of this appeal; all other costs are to await final determination of this action.

REVERSED AND REMANDED.


author: SAMUEL, Judge. BEER, Judge BOUTALL, Judge

text:
    Arnold BUSTILLO v. BOUDREAUX AND DANE CONSTRUCTION CO., and General Accident Group.
    No. 7395.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Order Sept. 16, 1976.
    Dissenting and Concurring Opinions Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.
    Writ Refused Jan. 19,1977.

      Dan C. Garner, R. Lee McDaniel, New Orleans, for plaintiff-appellant.
    Monte J. Ducote, New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG, BOUTALL, MORIAL and BEER, JJ.
   SAMUEL, Judge.

This is a suit in workmen’s compensation for total and permanent disability benefits, penalties and attorney’s fees. The defendants, Boudreaux & Dane Construction Company, a general contractor, and its compensation insurer, General Accident, Fire and Life Assurance Corporation, Ltd., answered in the form of a general denial and filed a third party demand for indemnity against Leonard Andres, d/b/a Fort Knox Construction Company, plaintiff’s immediate employer and Boudreaux & Dane’s subcontractor.

Following trial on the merits, there was judgment on the original demand in favor of plaintiff in the sum of $5,733. The third party demand was dismissed. Only the plaintiff has appealed. In this court he contends: (1) he is entitled to benefits for total and permanent disability; and (2) in addition, he is entitled to penalties and attorney’s fees.

There is no dispute concerning the fact that plaintiff was injured during the course and scope of his employment. He was a carpenter. On May 8, 1972, while engaged in the construction of a house, he fell from the ceiling joists to the ground nine and one-half feet below, landing on his back. He was taken by ambulance to the emergency room at Ochsner Foundation Hospital where he was seen and treated by Dr. Joseph F. Mabey, the staff surgeon then in charge of that room.

Because plaintiff had fallen a considerable distance, a thorough physical was performed, including extensive x-rays. Dr. Mabey diagnosed plaintiff’s injuries as a severe contusion of the right lumbar back, contusion of a kidney, and fracture of the transverse processes at L-l and L-2. He was observed at the hospital for approximately eleven hours for possible signs of hidden hemorrhage or other findings, which did not develop, and then released on medication.

Plaintiff was seen the following morning by Dr. Mabey. At that time there were no additional complaints. He was advised to rest and use a rib belt for mobility and support. Tablets for pain and butazolidin (an analgesic, but primarily anti-inflammatory medication) were prescribed.

Thereafter, Dr. Mabey saw plaintiff on approximately four occasions. He improved considerably and, because he was very desirous of returning to work, on May 29 he was told he could return to limited physical activities. When last seen by Dr. Mabey for this accident on June 13, 1972 plaintiff was markedly improved. He was advised to gradually increase physical activities, but to avoid lifting and climbing and to return in two or three weeks to make sure he was doing well as he increased his job performance.

Plaintiff did not return to see Dr. Mabey. As he had been on only light duties at the time last seen, Dr. Mabey did not express an opinion as to whether or not he could perform the full duties of a carpenter. The doctor was aware of the fact that plaintiff did have spondylolisthesis, a congenital condition of the lumbar spine not in any way caused by the accident. Dr. Mabey was of the opinion plaintiff’s fall had not aggravated the spondylolisthesis.

Plaintiff returned to his employment with Andres as a carpenter on June 8,1972, doing light work for six weeks to two months and then returning to full duties. He worked until December 8, 1972 when he left the job. Andres testified plaintiff sometimes, but not always, complained of back pain; at times he worked as a foreman; and during the fourteen year period he had worked for Andres, plaintiff had gone to sea on one occasion. Andres described plaintiff as an excellent and dependable worker and stated that when plaintiff left the job in December he told Andres he was tired of carpentry and wanted to go back to sea.

On August 8, 1972, three months after the accident, plaintiff saw Dr. Stuart I. Phillips, an orthopedic surgeon, with complaints of pain related to bending and lifting. That doctor found plaintiff had limited motion and paravertebral muscle spasms on the right, with limitation mainly in the left lateral deviation and tenderness over the area of the back. X-rays showed the spondylolisthesis but did not show the fracture of the transverse processes at L-l and L-2, four inches from the spondylolisthesis between L-5 and S-l. Dr. Phillips learned of the fracture from his reading of Dr. Mabey’s report. He testified that many persons with this type of mechanical back injury and pain limit their activities, learn to live with the condition, and do quite well, while others go to surgery. He recommended plaintiff perform light labor which did not require heavy lifting or repetitive bending.

On December 8, 1972, Dr. Phillips found plaintiff’s condition had worsened. The previous findings were again noted, additional x-rays were taken, and plaintiff was advised to limit his activities to light endeavors or have an operation to fuse the bone. At that time plaintiff was not interested in surgery, so the doctor agreed he should do light work. On August 20, 1973 plaintiff again saw Dr. Phillips with complaints of pain related to activity and relieved by rest. The physical examination and x-rays remained unchanged. On June 10, 1974 plaintiff complained of pain when he was required to do heavier duties as a seaman. The examination and x-rays remained unchanged. On January 14, 1975 plaintiff returned to Dr. Phillips with the same complaints. The doctor felt it was a matter of determining if plaintiff could find a light enough job at sea or be retrained for light work on shore.

Dr. Phillips concluded plaintiff had a 15% disability of the back, and that he was unable to perform the full duties of a carpenter, both solely due to the spondylolis-thesis. However, he stated it was common for spondylolisthesis to remain asymptomatic until an injury and then become symptomatic. In his opinion, this is what had occurred in the instant case, that plaintiff’s spondylolethesis had been aggravated by the accident.

Plaintiff testified: He asked to be released from therapy and be allowed to return to light work because he was unable to support his family with only the compensation payments. He returned to light work in June. Thereafter, he performed his carpentry duties in pain. In December, on the advice of Dr. Phillips, he left his employment as a carpenter because of the pain and sought work as a seaman which he knew from previous experience to be lighter work than that of a carpenter. He prefers to work as a carpenter, but is unable to bend, stoop and lift to the same extent as before the accident. He finds the duties of a seaman different and less strenuous than that of a carpenter and continues to work as a seaman even though he cannot do that work without pain. However, since the accident in suit and despite that pain, he has shipped out on sixteen different occasions. On most of those occasions he was required to take pre-employment physical examinations which were fairly routine, including blood and blood pressure tests and the like, without x-rays. In connection with those examinations he did not disclose his back problem for fear he would not obtain the employment.

Our compensation act defines permanent total disability as the inability “to do work of any reasonable character.” In the landmark case of Knispel v. Gulf States Utilities Company, Inc., 174 La. 401, 141 So. 9, the Supreme Court construed this statute to mean an employee is so disabled if he is unable to perform work of the same or similar description as that he was performing at the time of the accident. Our courts consistently have resisted all assaults on this position. The rule is stated in Bellard v. Insurance Company of North America, La.App., 193 So.2d 922, 923, as follows:

“Under the jurisprudence, a skilled or semi-skilled workman is regarded as totally disabled whenever an accident causes the loss of those physical faculties which had enabled him to earn a living performing the duties in which injured, even though despite his injuries he may be able to qualify and perform successfully other types of work.”

Another rule pertinent here is that the workman is considered disabled if as a result of the industrial accident he cannot perform his work without substantial pain.

As shown by his written Reasons for Judgment, the trial judge awarded plaintiff compensation at the rate of $49 per week for 140 weeks, or $6,860, less $1,127 compensation previously paid. He limited compensation to 140 weeks on the ground that January 15, 1975 was the last time Dr. Phillips had seen plaintiff. He was of the opinion plaintiff was not totally and permanently disabled because he had been able to perform his duties as a merchant seaman for approximately two years, passing physical examinations in the interim.

It would seem the position of merchant seaman involves as much hard labor as that of a carpenter, but the record discloses the contrary was so in this case. Plaintiff testified he worked first as an ordinary seaman and later as an able bodied seaman. His duties, as described by him, were lighter and less laborious, and involved less of the back movements which primarily caused the pain, than his work as a carpenter. That testimony is supported by two of his witnesses, a business representative of the carpenter’s union and an assistant port agent, and the record contains no evidence to the contrary. In addition, we note that the only medical evidence on the subject, the testimony of Dr. Phillips, is that plaintiff is unable to'perform the full duties of a carpenter due to the fact that his spondylolethesis had been aggravated by the accident and we are satisfied that plaintiff did perform his duties, both as a carpenter and as a seaman, in substantial pain. Accordingly, we award him compensation for permanent total disability.

We find no merit in plaintiff’s second contention relative to penalties and attorney’s fees. The last medical report received by the defendant insurer from Dr. Mabey stated plaintiff had returned to work and had been advised to perform light duties for the next two weeks. Compensation payments had been started on May 16 and were paid until October 17,1972, a total of twenty-three weeks. The payments were not stopped until after plaintiff had resumed his duties as a carpenter. There was no demand to reinstate payments until receipt of a letter from plaintiff’s attorney in September, 1973. This demand was denied because plaintiff was at sea and expected to remain there for eighteen months, so that the defendant insurer did not have an opportunity to have him examined by a physician of its choice. The same inability to have plaintiff examined was present with regard to information from Dr. Phillips, plaintiff’s physician, relative to the 15% disability estimated by that doctor. Under these circumstances, refusal to pay additional benefits was not arbitrary, capricious or without probable cause.

For the reasons assigned, the judgment appealed from is affirmed in part and reversed in part, and it is now ordered that there be judgment in favor of plaintiff, Arnold Bustillo, and against the defendants, Boudreaux and Dane Construction Company, and General Accident, Fire & Life Assurance Corporation Ltd., in solido, for compensation at the rate of $49 per week and continuing for the duration of the disability, not to exceed 500 weeks, with legal interest on each past due installment from its due date until paid, subject to a credit for compensation previously paid. In all other respects the judgment is affirmed. Costs in this court are to be paid by the defendants-appellees.

AFFIRMED IN PART; REVERSED IN PART.

BEER and BOUTALL, JJ., dissent in part and concur in part.

BEER, Judge

(dissenting in part and concurring in part).

In his written reasons for judgment, the able trial judge states:

“The Court is of the opinion that the plaintiff sustained the injuries complained of in an accident occurring while he was employed for carpentry work by defendant, Boudreaux and Dane Construction Company. Viewing his medical treatment and the opinions of the physicians who testified in this case, either in court or by deposition, the most favorable opinion that can be rendered in favor of plaintiff is that he had a disability from the date of injury until January 17, 1975 or a total of 140 weeks. The Court considers this to be in line with the testimony and the evidence obtained at the trial. The Court is also aware that it is under a duty to interpret the medical opinions in a light most favorable to the injured employee. This duty is fulfilled by accepting Dr. Phillips testimony relative to the length of disability of this plaintiff as set out herein above. It is interesting to note that in September of 1972 the plaintiff went to Ochsner Foundation Hospital for treatment for a scalp wound and did not complain of his back at that time. Additionally, he gave his employment as a carpenter working for Mr. Anders. “The plaintiff also performed his duties as a merchant seaman continuously from the date of January 1973 through the date of his trial. Testimony was adduced to the effect that he did not have to do anything physical to earn his money. It strains the imagination of the Court to believe that a man could hold down the position of merchant seaman for two (2) years, passing physical examinations in the interim, and be totally and permanently disabled from doing physical labor.”

A careful examination of the record leads me to the conclusion that the trial court’s findings are not manifestly erroneous. When, therefore, I accord them the “great weight” to which they are, by mandate, entitled, I conclude that the trial court’s judgment should be affirmed. Thus, I am obliged to respectfully dissent from that portion of the opinion of my brothers which sets aside the award made by the trial court and substitutes an award for 500 weeks.

I concur in that portion of the majority opinion which concludes that there is no merit to appellant’s contention relative to penalties and attorneys’ fees, but dissent from the holding that costs in this court should be paid by defendant-appellee.

BOUTALL, Judge

(dissenting in part and concurring in part).

I dissent in part and concur in part for the reasons expressed by Judge Beer.

ORDER

The defendants-appellees have filed an application for re-argument and, alternatively, for a rehearing in this matter. They base their request for re-argument on Article 5, Section 8(B) of the Louisiana Constitution of 1974, which, in pertinent part, provides: “However, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.”

In this matter, a majority of the three judge panel which originally heard the case were of the opinion the judgment should be affirmed in part and reversed in part. The other judge on the panel dissented in part. Accordingly, the matter was submitted to a five judge panel prior to rendition of judgment as required by the above quoted constitutional provision. However, through inadvertence, counsel were not notified of the submission to the five judge panel and, consequently, had no opportunity to rear-gue before that panel.

Under these circumstances, we must recall and set aside our August 31, 1976 opinion and decree so that the parties may have a full opportunity to exercise the above discussed right of re-argument. Accordingly,

IT IS ORDERED that our opinion and decree in this matter, handed down on August 31, 1976, be and the same are now recalled and set aside; and

IT IS FURTHER ORDERED that this matter be re-argued, on briefs only, before a panel of five judges of this court. If they desire to do so, the parties may submit additional briefs not later than September 30, 1976.

ON RE-ARGUMENT

Re-argument of this matter having been heard by the original five judge panel, with the majority of that panel adhering to the original decree and to the views expressed in the original opinion:

Our original decree is reinstated and made the judgment of this court.

ORIGINAL DECREE REINSTATED.

BOUTALL and BEER, Judges (dissenting in part and concurring in part).

We dissent in part and concur in part for the reasons previously expressed.

      . Erroneously referred to in the original petition and title as “General Accident Group”.

      . LSA-R.S. 23:1221(2).

      . See also Hebert v. Your Food Processing & Warehouse, 248 La. 197, 177 So.2d 286; Ordoyne v. Wilson, La.App., 262 So.2d 82; Castile v. H. E. Wiese, Inc., La.App., 231 So.2d 406; Cooley v. Insurance Company of North America, La.App., 216 So.2d 388; Roberie v. Ashy Construction Company, La.App., 215 So.2d 857; Mouton v. Habetz, La.App., 215 So.2d 363; Gallow v. Wilson P. Abraham Construction Company, La.App., 197 So.2d 680, and Landry v. Central Excavation Company, La. App., 196 So.2d 571.

        . Reeves v. Russo, La.App., 302 So.2d 332; Ordoyne v. Wilson, supra, footnote 3; Rutherford v. Dixie Concrete, Inc., La.App., 222 So.2d 508; Meche v. Employers Liability Assurance Corp., La.App., 206 So.2d 152; LaRosa v. Insurance Company of North America, La.App., 206 So.2d 135; Murphy v. Baton Rouge Coca-Cola Bottling Company, La.App., 165 So.2d 636, and Veillion v. Knapp & East, La.App., 158 So.2d 336.

      . The applicable statute, LSA-R.S. 22:658, provides for penalties and attorney’s fees for failure to make payment within sixty days after receipt of proofs and demand therefor “when such failure is found to be arbitrary, capricious, or without probable cause.”

      . Both counsel have agreed to submit the re-argument on briefs only.


author: REDMANN, Judge.

text:
    JAHNCKE SERVICE, INC. v. ZAMO, INC., and Windmill Properties, Inc.
    No. 7508.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1976.
    Ronald H. Newman, Robert A. Mathis, Newman, Duggins, Drolla & Gamble, New Orleans, for plaintiff-appellee.
    Patrick J. Browne, Richard Montgomery, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendants-appellants.
    Frans J. Labranche, Jr., New Orleans, for intervenor-appellee.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   REDMANN, Judge.

These appeals are from judgments which have already been set aside by this court under its supervisory jurisdiction. (Compare Society to Oppose Pornography v. Thevis, La.App. 4 Cir. 1973, 273 So.2d 653.)

Appeals dismissed.


author: LANDRY, Judge. EDWARDS, J.,

text:
    Marie Ponville, wife of/and Eddie J. PONVILLE v. The TRAVELERS INSURANCE CO.
    No. 10917.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.

      Larry P. Boudreaux, Porteous, Toledano, Hainkel & Johnson, Thibodaux, for plaintiff-appellee.
    W. Luther Wilson, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-appellant.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

The travelers Insurance Co. (Travelers) appeals from judgment awarding plaintiffs (Appellees) damages for personal injuries sustained by Mrs. Marie Ponville and special damages resulting from an automobile accident in which a police car, insured by Travelers, ran into the rear of the Ponville car while in pursuit of a speeding motorist. Mrs. Ponville has answered the appeal seeking an increase in her award for personal injuries. We affirm.

The accident occurred at approximately 3:45 P.M., January 2, 1974, on two lane, paved La. Highway 1, between Napoleon-ville and Labadieville, Louisiana. The weather was clear and the highway dry. Mrs. Ponville, delivering newspapers, was driving her Chevrolet Nova automobile northerly along the highway. She crossed the southbound lane and drove onto the wide shoulder on the west side of the road and delivered a newspaper to a box which served the home of Aubrey Davis. She then reentered the highway headed in a northerly direction and proceeded diagonally into the northbound lane. After having driven a short distance in the northbound lane, her vehicle was struck from the rear by a police car being driven by Trooper Timothy P. Gann at an admitted speed of 80 miles per hour. It is conceded the impact occurred in the northbound lane of travel. It is also conceded that the police car left 200 feet of measured skid marks prior to the impact, 89 additional feet of skid marks north of the point of contact. The police car came to rest in the northbound lane of travel approximately 105 feet north of the collision point. The Ponville car spun around in a counter-clockwise direction and came to rest facing southerly, in the yard of a residence situated on the east side of the road.

Trooper Gann had been a police officer for three months preceding the accident. He testified he was proceeding southerly along Highway 1, on patrol, when he noticed a red or maroon colored oncoming vehicle proceeding northerly at a very high rate of speed. Upon activating his radar, he clocked the oncoming motorist at 80 miles per hour and immediately decided to change direction and give chase. He proceeded southerly a distance of about 2/10 of a mile until he found a suitable place to turn. The police car was equipped with a siren and four flashing red lights which were approximately 4 inches in diameter. Two of the lights were mounted on the front bumper between the vehicle’s regular headlamps. The other two warning lights were mounted on the rear deck of the police unit. The warning lights were so installed that they alternately flashed on and off. After turning around, Trooper Gann activated his siren and warning lights. While he was in the act of changing direction, a vehicle intervened between the Trooper’s car and the vehicle being pursued. After passing the intervening automobile, Trooper Gann turned off his siren at which time he was approximately Vs of a mile behind the car he was pursuing. He continued his chase with no siren sounding. Trooper Gann did not notice the Ponville car until it was in the act of crossing the center line of the highway angling into the northbound lane approximately 200 feet ahead. He then applied his brakes but could not avoid striking the rear of the slow moving Pon-ville car.

Mrs. Ponville’s testimony is that she was driving her car northerly along the highway, delivering newspapers. She drove onto the west shoulder of the road and made a delivery at the Davis residence. While parked there, she noted the approach from the south of a red automobile traveling at what she deemed to be a very rapid rate of speed. She waited on the shoulder of the highway until the red car passed. She again looked to the south and saw no vehicle in sight although her line of vision was unobstructed for about V2 mile. She then proceeded slowly at an angle across the southbound lane, intending to proceed northerly to then make a delivery to the home of Everett Landry, situated on the east side of the highway about 150 to 200 feet north of the Davis home. After driving into the northbound lane and having traveled about 100 feet therein, or a total of about 150 feet from the mailbox at which she had stopped, her vehicle was struck from the rear. She did not hear a siren and did not see the police car at any time.

The accident was witnessed by 17 year old Richard Spots who lived in the neighborhood and who was walking southerly along the west shoulder of the highway a short distance north of the Davis home immediately before the accident. He first saw the police car, traveling northerly, as that vehicle rounded a curve approximately % of a mile south of the point of collision. He did not hear a siren; neither did he observe any flashing lights on the police car. Spots saw Mrs. Ponville drive from the west shoulder of the highway diagonally across the road to the northbound lane in which she proceeded some distance before her vehicle was struck from the rear by the northbound police unit. He stated that at the moment of collision, Mrs. Ponville’s car was completely in the northbound lane and that its right turn indicator was in operation.

Travelers concedes Trooper Gann was exceeding the-lawful speed limit but contends he was legally justified because he was in the act of performing his duty as a law enforcement officer engaged in an emergency mission as defined in LSA-R.S. 32:24, which pertinently provides:

“A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
* * * * * *
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
Sfc $ ¡fc S{! iji ‡
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible and visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

Prather v. Gautreaux, 297 So.2d 439 (La. App. 3d Cir. 1974), and Sholar v. U. S. Fire Insurance Company, 261 So.2d 327 (La.App. 1 Cir. 1972), also cited and relied upon by Travelers, are factually inapposite.

As did the trial court, we find that Gann’s negligence in traveling at an excessive rate of speed is patent on the face of the record. He was not in compliance with LSA-R.S. 32:24, above, in that he did not have his siren in operation while in pursuit of a speeding motorist at a high rate of speed.

We fail to see wherein Mrs. Ponville was negligent under the circumstances. She was apparently keeping a proper lookout because she duly observed the approach of the automobile Trooper Gann was chasing (the red car she let pass before returning to the traveled portion of the road). Her vision to the south was unobstructed for quite some distance. Considering that Trooper Gann was traveling at an admitted rate of 117 feet per second, and further considering the fact that Mrs. Ponville proceeded from a stopped position, thereby utilizing several seconds to traverse the distance to the point of collision, it may be expected that the police unit was as much as a quarter of a mile away when Mrs. Ponville looked, and, therefore, would not have necessarily caught her attention or have been within range of a proper lookout. But, even assuming the police unit was in sight at the time she looked and that she should have seen it, she was entitled to presume it was traveling at a lawful rate of speed. She heard no siren and indeed could not have heard one because Trooper Gann admitted he shut his siren off after passing the intervening automobile. That she may have failed to see the flashing signal from the front mounted warning lights, we do not deem negligence on her part under the circumstances. The lights were mounted low on the vehicle, on the front bumper. It was daylight and flashing lights would not be as readily observable to a driver as such lights would be in darkness. We absolve Mrs. Ponville from any negligence constituting a proximate cause of this accident.

Mrs. Ponville, 54 years of age, was taken from the accident scene to the hospital where examination revealed her to be suffering from chest, neck, and back pains. X-rays of the skull and rib cage, were negative as to fractures, but those of the cervical and thoracic spine did reveal the presence of degenerative arthritis. Her injuries were diagnosed as cervical strain and contusion of the anterior chest wall. She remained hospitalized overnight and was allowed to return home the following day. Her doctor prescribed muscle relaxant, analgesics, and sedatives to relieve the pain and discomfort she experienced on walking and standing. For 16 days she was laid up at home with back pains. She was seen by her treating physician on January 8, January 22, February 5, and March 2, 1974. On her last visit on March 19, 1974, she complained of slight neck pain. On this occasion she showed no limitation of motion, and her doctor felt she was doing very well. On August 15,1975, her condition was evaluated by a orthopedic surgeon who found her still suffering from a stiff neck, which condition he attributed to the accident. At trial, Mrs. Ponville testified she was still experiencing back and leg pains for which condition she was taking aspirin. The trial judge awarded Mrs. Ponville $1,500.00 general damages for her injuries.

In the award of general damages for personal injuries, much discretion is vested in trial courts. LSA-C.C. Article 1934(3); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Canter v. Koehring Company, 283 So.2d 716 (La.1973). To modify an award for general damages an appellate court must find that the trial judge or jury has abused the “much discretion” accorded by LSA-C.C. Article 1934(3). Miller v. Thomas, above, Canter v. Koehring Company, above.

Awards in similar cases serve only as aids in determining whether a judge or jury has abused the much discretion in them in the assessment of general damages, they do not rivet a steel frame of uniformity of awards. Miller v. Thomas, above.

We find no abuse of the trial court’s discretion in making the award granted herein.

The judgment of the trial court is affirmed, all costs of these proceedings to be paid by Travelers.

Affirmed.

EDWARDS, J.,

concurs and agrees with the result as to liability, but expresses substantial reservations as to the low award for general damages.