author: BROOM, Justice.

text:
    NORTH MISSISSIPPI SAVINGS & LOAN ASSOCIATION v. Clinton U. COLLINS and Rodney Defenbaugh et al.
    No. 48256.
    Supreme Court of Mississippi.
    Sept. 9, 1975.

      Sullivan, Smith & Hunt, Clarksdale, for appellant.
    Wells, Gerald, Brand, Watters & Cox, Frank T. Moore, Jr., Jackson, for appel-lees.
    Before SMITH, ROBERTSON and BROOM, JJ.
   BROOM, Justice.

The Board of Savings & Loan Associations, a state administrative tribunal, ordered that North Mississippi (an existing association) be authorized to establish and operate a savings and loan branch office in Grenada, Mississippi. North Mississippi’s petition to be so authorized was protested by several objectors, the appellees herein. Simultaneously, certain appellees petitioned for a charter to incorporate and operate an association in Grenada to be known as Heritage Savings & Loan. North Mississippi appeals from a Grenada County chancery court decree reversing the Board’s order which authorized North Mississippi’s branch office. We affirm.

The controlling issues are: Does the Savings & Loan Act of 1962 [Miss.Code Ann. 81-11-1 (1972) et seq.] in situations where two petitioners have applied for authority to locate or establish a savings and loan business in a particular area, permit the Board to simultaneously consider such applications filed at different times? May the Board hear comparative evidence as to which petitioner could render a more substantial benefit to the area to be served ?

FACTS

On August 4, 1972, the appellant, North Mississippi, whose home office was in Clarksdale, petitioned the Board for authority to establish and operate a branch office at Grenada. On October 23, 1972, certain objectors (appellees) filed objections and protests to North Mississippi’s petition. In their pleadings certain of the objectors admitted the need for an additional savings and loan facility in the .area, but denied that North Mississippi would either benefit or be a significant asset to the area. In addition to objecting to North Mississippi’s petition, certain of the objectors affirmatively pleaded that they had filed simultaneously with their objections and protests an application to incorporate and operate an association to be known as Heritage Savings & Loan. They alleged that a need existed for a savings and loan association in the area but that the need was for a locally owned and operated association rather than “a multi-branch conglomerate.” The objectors raised the issue of whether or not a locally owned and operated association could better fulfill the needs of the area and render a greater benefit to it than could a branch of North Mississippi.

During presentation of its case to the attorney-referee, North Mississippi put on certain proof and then called as adverse witnesses the objectors (appellees) to its application. Later when the appellees were presenting their case, the attorney-referee sustained the objection of North Mississippi to any comparative testimony to the effect that Heritage could benefit the area more than North Mississippi. In making his ruling the attorney-referee stated that “we know that this (North Mississippi’s petition) is not going to be decided until the second one (Heritage’s petition) is heard anyway. That is where your comparison will come in so I am disallowing the question.” At that time the appellees made profert of testimony that Heritage could serve the area to a greater degree than could North Mississippi by operating a branch.

On April 4, 1973, the attorney-referee submitted his findings to the board. He found that the petitioner had made out a prima facie case “there being no rebuttal as to any of the three requisites prescribed by section 5288-06 [now Mississippi Code Annotated section 81-11-11 (1972)].” Included in his findings was a recommendation to the Board that the petition of North Mississippi to operate the branch office at Grenada be approved. At the same time, he also recommended that the Board’s decision on the North Mississippi petition be delayed or withheld until after a hearing on Heritage’s application.

On April 5, 1973, the Board met and accepted the fact findings and recommendations of the attorney-referee except the recommendation that it delay and withhold its decision. The Board then found that North Mississippi had met the three statutory requirements and authorized North Mississippi to establish and operate its branch at Grenada. On appeal the chancery court reversed the Board. The chancellor found that the Board’s action in granting North Mississippi’s petition without a hearing on Heritage’s application was erroneous, and that it operated to deny Heritage an opportunity to be heard on its petition before the granting of North Mississippi’s application.

Mississippi Code Annotated section 81-11-11 (1972) requires that, before the Board shall approve a charter, there must be shown:

(1) A need for the association in the area . . . , (2) that the presence of the proposed association will not jeopardize the financial stability of any existing association . . . , (3) that the organization of the association will benefit the area .

Although there was substantial evidence presented by North Mississippi to establish the requirements of section 81-11-11, supra, the chancellor correctly ruled that comparative evidence should be heard tending to show which of the two associations could most beneficially serve the area. We reject the argument of North Mississippi that the referee and the Board were statutorily enjoined to consider only its evidence that tended to establish the statutory requirements of section 81-11-11, supra.

North Mississippi further argues that the Act, supra, does not permit simultaneous consideration of applications filed at different times for operation of a savings and loan facility in the same area. Cited by North Mississippi is Mississippi Code Annotated section 81-11-13 (1972), which states in part:

During the time the cause [an application that is being considered by the board] is pending before the board or the court, the board shall not issue a certificate to a subsequent applicant to incorporate and organize a new association or authorize any association then existing to establish a branch or association or branch office within the area wherein the proposed new association is to be domiciled, and neither shall the board consent to the removal of the domicile of an existing association from another place into the area where the proposed new association will be domiciled.

Clearly, the statute, during pendency of North Mississippi’s application, only prohibits the Board from: (1) issuing a certificate of incorporation to a new association or (2) authorizing an existing association to establish a branch association or branch office, and (3) consenting to the removal of the domicile of an existing association. Thus, it is clear that North Mississippi’s contention in this regard is untenable. Our interpretation of the Act is that two applications may be simultaneously considered, but the first application filed must be either granted or dismissed before a subsequent application can be finally adjudicated or acted upon.

The question is squarely presented: If the Act does not prohibit the simultaneous consideration of two applications, did the chancellor err in ordering the Board to hear both applications before making a decision? We think he did not. Justification for this conclusion may be noted in the title to the Savings and Loan Act, which reads in part: “An Act to protect the saving public . . . .” Ch. 228, § 1 [1962] Miss.General Laws 307.

Further justification for this conclusion may be pointed out by the following hypothetical • illustration: A and B both filed applications with the Board at precisely 8:00 a. m., for permission to operate a savings and loan facility in the same area. A’s application is docketed first. Is B to be deprived of an opportunity to show that it is entitled to serve the area simply because the Board arbitrarily docketed A’s case first? The answer has to be in the negative if the Act is to be construed so as “to protect the savings public” as stated in the title to the Act. Therefore, we rule that when two applications have been filed for authority to locate or establish a savings and loan business in a given area, consideration should be given by the Board to the merits of each application so as to insure that the savings public will be protected.

The chancellor rendered a most excellent and enlightened opinion in this cause. His opinion states:

Agreeing with Appellee that the Court takes judicial notice of the Board’s Rules and Regulations, and being of the view that it' could ascertain, for itself, what these Rules are, the Court at this point requested of Appellant, and has received directly from the Board’s office, a set thereof. These Rules and Regulations have been examined and the Court has found nothing therein providing against consolidation of hearings such as this or the withholding of decision on one application until another has been heard.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SUGG and WALKER, JJ., concur.

GILLESPIE, C. L, took no part.


source: Caselaw Access Project

author: Broom, Justice.

license: Public Domain

text:
    In re ESTATE of Grace K. BILELLO, Deceased. Lelia K. SMITH and Nancy Kirby Mabry v. Lloyd C. BILELLO.
    No. 48249.
    Supreme Court of Mississippi.
    Sept. 9, 1975.

      Bell & McBee, Greenwood, for appellant.
    Odom, Odom & McCain, Luke J. Schis-sel, Greenwood, for appellee.
    Before GILLESPIE, ROBERTSON and BROOM, JJ.
   Broom, Justice.

A holographic will was denied probate by the Chancery Court of Leflore County. Lelia K. Smith and another beneficiary of the will appeal. We affirm.

The chief issue is whether or not the chancellor erred in applying to the will the doctrine of presumptive invalidity because of a confidential relationship between the testatrix and her sister, a beneficiary.

The testimony established the following facts. On May IS, 1953, Grace K. Bilello (testatrix) came to the house of her sister, Lelia K. Smith, and asked for a pen and paper, stating that she desired to make her will. Lelia, an appellant, suggested that Grace go to an attorney, but Grace declined and drafted an instrument which she declared to be her will. The instrument is on a single piece of paper and reads as follows : v

I will my interest in Kirby Ridge to Nancy Kirby Mabry and my interest in the store building, now being rented by C. B. Turner, to Lelia K. Smith—

Grace left the will in the possession of Lelia who testified that she put it in a dresser drawer and forgot about it. On October 9, 1961, the testatrix died in a flash fire, whereupon letters of administration issued to her husband, Lloyd C. Bilello (appellee). A final decree was entered September 21, 1962, closing out the administration. About 1968 or 1969, Mr. Bilello approached Lelia regarding partition of the property which he and Lelia held as tenants in common by virtue of his inheritance as sole heir at law of his wife, Grace. At this point Lelia, according to her testimony, remembered the existence of the will which she filed for probate, and in the petition for probate, she and Nancy sought to set aside the final decree in the administration of the estate of the testatrix. The appellee contested probate, issue was joined, a jury was waived and the matter tried by the chancellor, who refused admittance of the instrument to probate.

I.

Key to the chancellor’s decision was his finding that a confidential or fiduciary relationship existed between the testatrix and Lelia. What constitutes a confidential relation is defined in Black’s Law Dictionary, Revised Fourth Edition 1968, at page 370. It states, among other things, that a confidential relation is not confined to any specific association of parties but appears when “on the one side there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed.”

In finding that there was a confidential or fiduciary relationship between the testatrix and her sister Lelia in the present case, the chancellor had before him substantial testimony showing that their relationship was more than sibling consanguinity. Evidence established that the testatrix visited Lelia almost every morning and frequently visited her again in the afternoon. The evidence supported the chancellor’s finding that the testatrix was “an alcoholic and was weak in mind and body” when the will was drawn.

The rule which the lower court followed was stated well in Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959):

[WJhere a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it, the law raises a presumption that the beneficiary has exercised undue influence over the testator, and casts upon the beneficiary the burden of disproving undue influence by clear and convincing evidence.

(237 Miss. at 722-23, 115 So.2d at 686).

As the chancellor recognized, the relationship between the testatrix and Lelia was not a conventional fiduciary relationship in a strict sense but, as stated in Ham v. Ham, 146 Miss. 161, 173, 110 So. 583, 584 (1926), quoting 2 Pomeroy, Equity Jurisprudence (4th ed.) § 956:

It is settled by an overwhelming weight of authority that the principle extends to every possible case in which a fudiciary relation exists as a fact, in which there is confidence reposed on one side, and the resulting superiority and influence on the other. The relation and duties involved in it need not be legal, it may be moral, social, domestic, or merely personal.

The record also supports the chancellor’s finding that there were suspicious circumstances attendant to the execution of the will. Suspicious circumstances noted by the chancellor were the following: Lelia actively participated in the execution of the will; the will was executed in her home; she was the only person aware of the will; she was the sole custodian of the instrument; and there was a long delay in producing the instrument.

In deciding this case, the chancellor correctly applied the doctrine of presumptive invalidity of the will because of the confidential relationship between the testatrix and a beneficiary, and suspicious circumstances attendant to the will’s execution. He adhered to the decisions cited above as well as In Re Will of Moses, 227 So.2d 829 (Miss.1969).

II.

There is some merit to the appellant’s argument that the court erred in admitting the testimony of Lloyd C. Bilello in derogation of Mississippi Code Annotated section 13-1-7 (1972). James v. Barber, 244 Miss. 234, 142 So.2d 21 (1962). The error is harmless because the chancellor’s findings were all justified and supported by testimony independent of Mr. Bilello’s testimony. Regardless of the evidence furnished by Mr. Bilello, the appellants (proponents of the will) failed to satisfactorily prove that there was an absence of undue influence associated with the testatrix’ writing and signing the holographic will.

While this is a close case, upon the facts- and circumstances revealed by the record we are unable to say that there was reversible error on the part of the chancellor.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ., concur.


text:
    Thomas (Tommy) H. PEARSON v. STATE of Mississippi.
    No. 48657.
    Supreme Court of Mississippi.
    Sept. 9, 1975.
    Johnson, Pittman & Pittman, Hatties-burg, for appellant.
    A. F. Summer, Atty. Gen. by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   Affirmed.


text:
    The SPIVEY COMPANY et al. v. Homer Jackson INGRAM.
    No. 48288.
    Supreme Court of Mississippi.
    Sept. 9, 1975.
    Daniel, Coker, Horton, Bell & Dukes, Forrest W. Stringfellow, Jackson, for appellants.
    Smith, Allen & McLemore, Carthage, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   Affirmed.


author: PATTERSON, Justice.

text:
    Clara MOORE, Complainant-Appellant, v. MISSISSIPPI HOSPITAL AND MEDICAL SERVICE d/b/a Blue Cross, Blue Shield, Defendant-Appellee.
    No. 48336.
    Supreme Court of Mississippi.
    Sept. 9, 1975.
    Laurel G. Weir, Philadelphia, for complainant-appellant.
    Terry L. Jordan, Philadelphia, McDavid & Rimmer, Jackson, for defendant-appel-lee.
    Before PATTERSON, INZER and SUGG, JJ.
   PATTERSON, Justice.

This is an appeal from a decree of the Chancery Court of Neshoba County sustaining a demurrer to the bill of complaint and dismissing the cause of action. The ground for the demurrer was that jurisdiction of the cause was in the circuit court of the county rather than the chancery court.

The present issue is whether the trial court should have transferred the cause to the circuit court or whether it correctly dismissed the bill of complaint.

We are of the opinion that the demurrer was properly sustained, but that the trial court erred in dismissing the cause. It should have been transferred to the circuit court. See Section 162, Mississippi Constitution (1890) and Layne Central Co. v. Gulf Coast Ice Co., 171 Miss. 94, 157 So. 84 (1934).

Reversed and remanded to the Circuit Court of Neshoba County.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


author: ROBERTSON, Justice:

text:
    T. E. GUILLOT, d/b/a Jackson Dental Supplies v. The BOARD OF TRUSTEES OF the MISSISSIPPI GULF COAST JUNIOR COLLEGE, PERKINSTON, Mississippi.
    No. 48255.
    Supreme Court of Mississippi.
    Sept. 9, 1975.
    Edward L. Cates, Jackson, for appellant.
    Roy B. Strickland, Wiggins, for appellee.
    Before SMITH, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice:

T. E. Guillot, doing business as Jackson Dental Supplies, brought suit in the Chancery Court of Stone County, Mississippi, against the Board of Trustees of the Mississippi Gulf Coast Junior College, located at Perkinston, Mississippi.

The complainant averred in his bill of complaint that he received an invitation to bid on certain dental equipment and supplies needed by the Junior College. He bid on many items, including three dental chairs listed on the invitation to bid as items numbered 8, 9 and 22. Being the lowest bidder on a number of items, complainant was awarded the contract to furnish all of these items, except Items 8, 9 and 22. Guillot charged in his bill of complaint that even though he was the lowest and best bidder the contract for these three items was not awarded to him, but was awarded to another bidder, namely, Auderer Dental Supply.

In support of this charge, complainant tabulated in his bill of complaint the three bids received on these items which showed that he was the lowest bidder on each of them. He also attached as an exhibit a tabulation sheet of the bids on every item and this sheet also showed that on items 8, 9 and 22 complainant was the lowest bidder. Complainant charged that this action of the Board of Trustees was arbitrary, capricious and unreasonable, and prayed that the awarding of the contract for furnishing items 8, 9 and 22 be set aside and the contract awarded to the complainant. Complainant also prayed for “further, general and special relief as is meet and proper under the circumstances.”

To the bill of complaint, the defendant board filed a pleading, designated “Demurrer”, which stated:

“[T]hat there is no equity stated in the Complaint, the Defendant is vested with a reasonable discretion in determining who is the lowest and best bidder, the Complainant is well aware of the acceptance of the bid in question based upon the recommendation of a local, professional, Advisory Committee, the contracts have been consummated, this is no class action, the statutory remedy for abuse of discretion is neither alleged nor sought, and for other reasons to be argued upon the hearing of this Demurrer.”

The court in an opinion sustaining the demurrer stated that:

“This matter was heard by the Court on the 22nd day of January 1974 upon the preliminary pleadings filed by both parties, to-wit: Demurrer to the Bill of Complaint filed by the Defendant on December 3, 1973, Demurrers to the Cross Bill of Complaint filed by the Complainant on December 17, 1973, and Motion to Strike filed by the Complainant on December 17, 1973.”

Further in its opinion, the court set forth the demurrer in its entirety.

The court then stated that its opinion was that the demurrer must be sustained. But the court did not stop there; it went on to say:

“[T]hat the Defendants decision to award the bid in this case to those other than the Complainant was based upon an honest exercise of discretion and upon facts which amply support their decision.”
Ill
“This Court is further of the opinion that the Cross Bill of Complaint filed in this cause should be dismissed.”

This Decree was entered:

“This cause came on to be heard by the Court upon the preliminary pleadings filed by both parties, to-wit: Original Bill of Complaint, Demurrer thereto by the Defendant, Answer to the Complaint by the Defendant as well as a Cross Bill of Complaint, a Demurrer to the Cross Bill of Complaint, and a Motion to Strike part of the pleadings; at which time Court consolidated all pleadings for the purpose of disposing of the Demurrer filed by the Defendant on December 3, 1973, as well as all other preliminary pleadings, and heard full arguments thereon on the 22nd day of January, 1974. Thereafter the Court reserved its ruling, taking all issues under advisement, during which time Counsel for hoth parties submitted memorandum briefs, which the Court maturely considered, and concluded that the Demurrer of the Defendant should be sustained, and that the other matters should be dismissed, all pursuant to the Court’s writ» ten opinion dated February 7, 1974, now on file in the Stone County Chancery Clerk’s Office.”

The court was in error in sustaining the demurrer to the bill of complaint, in consolidating “all pleadings for the purpose of disposing of the Demurrer ... as well as all other preliminary pleadings, .” and in making any findings of fact in its opinion sustaining the demurrer.

Mississippi Code Annotated Section 11-5-23 (1972) provides:

“When a demurrer is filed whether separately, or when embraced in the answer, no part of the answer other than the demurrer shall be considered by the court on the hearing on the demurrer,

Griffith’s Mississippi Chancery Practice (2nd Ed., 1950), Section 289, says:

“A demurrer is, and must be always, based solely upon the allegations of fact well pleaded as such in the bill. A de■> murrer cannot contain anything which denies any allegation in the bill. A par-ty cannot qualify his demurrer nor give it any other operation than such as the law gives. The challenge of a demurrer can be interposed only for defects and insufficiencies apparent on the face of the bill itself; no question of fact other than as appears in the bill itself can be raised by demurrer. The substantial grounds of a demurrer must appear upon the face of the bill, and if a demurrer seeks to allege any fact or otherwise to import anything of fact into the question not shown on the face of the bill it is a ‘speaking demurrer,’ and will be overruled. Not only so, but moreover, a de-murrant cannot aid himself by what the evidence would show, or does show if there be any evidence in ttie case, nor By any answer filed, .... Upon the presentation of a demurrer the bill alone must be looked to for the facts, excepting only the facts which the court may judicially know, . . . .” Pages 272-273. [Emphasis added].

There is no merit in the Supplemental Assignment of Error that the court “erred in failing, under Section 11-5-23, Mississippi Code 1972, to allow the Appellant time within which to amend his pleadings.” This same argument was answered in Bishop v. Chickasaw County, 182 Miss. 147, 180 So. 395 (1938), when the Court said:

“This he did not ask for. The rule is that where a demurrer is sustained a final dismissal of the bill follows unless the complainant asks leave to amend. Griffith’s Chancery Practice, section 311.” 182 Miss. at 155-156, 180 So. at 396. [Emphasis added].

Upon remand, the complainant can move to amend and whether the amendment is germane and meritorious and should be allowed is, of course, a matter for the lower court to pass on at that time.

The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

RODGERS, P. J., and PATTERSON, INZER, SUGG and WALKER, JJ., concur.

GILLESPIE, C. J., did not participate and took no part in this decision.


author: WALKER, Justice.

text:
    ILLINOIS CENTRAL GULF RAILROAD CO., a Delaware Corporation, and T. B. Grant v. James Albert ISHEE.
    No. 48233.
    Supreme Court of Mississippi.
    Sept. 9, 1975.
    Gibbes, Graves, Mullins, Bullock & Ferris, Laurel, for appellants.
    Pittman & Nobles, Jackson, L. D. Pittman; Tullos & Tullos, Raleigh, for appel-lee.
    Before RODGERS, SMITH and WALKER, JJ.
   WALKER, Justice.

This is an appeal from the Circuit Court of Smith County, Mississippi, wherein one Ishee, appellee, recovered a judgment in the amount of $25,000 against the appellant Railroad and its engineer for injuries sustained as a result of being struck by the appellant’s locomotive, while he was lying on the track in an unconscious and intoxicated condition [see appendix] approximately one mile north of the depot in Bay Springs, Jasper County, Mississippi, at about 5:45 p. m. on May 12,1973.

On May 12, 1973, at about 4:00 or 4:30 in the afternoon, Ishee left his home in his automobile to go to Bay Springs, a driving distance of about three miles, to purchase some cigarettes. About one-quarter of a mile from his home, he ran out of gas and “caught a ride” with some acquaintances headed toward town. From that point, he was unable to shed any light on how he was injured as the next thing that he remembered was waking up in the Jones County Community Hospital at Laurel, Mississippi.

The only eyewitnesses to the accident were the members of the train crew, consisting of the engineer, two brakemen and the conductor.

Grant, the engineer and one of the appellants, testified that after leaving the depot in Bay Springs and prior to reaching the accident scene he gave the standard crossing signals at three Bay Springs crossings which consisted of ringing the bell, blowing two long blasts of the whistle, a short and another long blast. He stated that the train’s safety devices had been checked twice that day and were all in good working order.

In describing the accident scene, Grant testified that it occurred approximately 1,000 feet from the nearest crossing and was approximately one mile north of the depot in Bay Springs; that a wooded area was on each side of the track; that the right-of-way was fenced on both sides; that there were no paths either perpendicular or parallel to the railroad tracks at that point; and that there were bushes and weeds along the right-of-way which partially obstructed his view; that he was keeping a lookout ahead when he saw an object on the track; and that the locomotive was traveling at approximately 28 miles per hour and was 200 to 250 feet away when he realized the object was a human being. He described Ishee’s position as being approximately 100 feet into a left-hand curve in the railroad tracks lying on his right side, his back to the train, his head hanging over the rail on the inside of the curve, and his feet extending to the west perpendicular to the rail. (This would place Ishee’s body on the outside of the tracks and not between the rails). Grant testified that he reacted immediately by putting the train in emergency which he described as meaning “. . . you lock the brake on everything you’ve got”, and that “. . . all sanders on both units . locomotives — sand from all units is sanded automatically”; and, that at the same time he started blowing the horn with numerous short blasts. He testified that even though he was doing everything that he possibly could to stop the train, he was unable to bring it to a complete stop before striking Ishee at a speed of approximately ten miles per hour.

It is not necessary that we discuss the evidence adduced at the trial as to damages and injuries since this case turns on the question of liability.

At the close of the case, the appellants requested a peremptory instruction which was refused; and, after the verdict was returned by the jury, made a motion for a judgment notwithstanding the verdict or in the alternative for a new trial, assigning as grounds therefor, among other things, that the verdict was against the overwhelming weight of the evidence. This motion was overruled.

The appellants assign as error on appeal, among other things, that the trial court erred in not granting their requests for a peremptory instruction or motion for judgment notwithstanding the verdict of the jury. With this, we agree.

The evidence establishes that Ishee was a trespasser or at best a licensee upon the property belonging to the Railroad Company. The duty owed him by appellants, however, was the same whether he was a trespasser or licensee. Cotton v. Quinn, 245 So.2d 593 (Miss.1971); Roberts v. Mississippi Power & Light Co., 193 Miss. 627, 10 So.2d 542 (1942).

In Gulf, Mobile & Ohio Railroad Company v. Hollingshead, 236 So.2d 393 (Miss.1970), this Court restated the rule with respect to the duty owed by a property owner to a trespasser where it was held:

Hollingshead was a trespasser on the railroad trestle. It is settled in this State that the servants of a railroad company in charge of its train are under no duty to keep a lookout for trespassers on the railroad track, and are required only to exercise reasonable care to prevent injuring a trespasser after they have discovered and realized his peril. Dickerson v. Illinois C. R. R., 244 Miss. 733, 145 So.2d 913 (1962). The test of responsibility arises when the engineer becomes aware of the presence and peril of the trespasser. Illinois C. R. R. v. Ash, 128 Miss. 410, 91 So. 31 (1922); Louisville, N. O. & T. Ry. v. Williams, 69 Miss. 631, 12 So. 957 (1892). Until made aware of the presence and peril of the trespasser, “there could not be wilful negligence or wanton misconduct toward an unrecognized, undiscerned trespasser.” (Emphasis added). (236 So.2d at 395).

The case of Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (1960), which was an action by a licensee against a garage owner and his employee for injuries to the plaintiff-licensee who, when given permission to install a dimmer switch on a truck on the garage premises, stuck his feet out into the driveway and was in that position for about five minutes when the employee, driving an automobile, blew his horn, but did not see the plaintiff’s feet and injured him. In holding that the evidence was insufficient for the jury on the issue of whether the garage owner willfully or wantonly injured plaintiff, the Court said:

The undisputed evidence for plaintiff would not warrant a jury in finding that appellees willfully or wantonly injured him. This is the recognized measure of the duty of a possessor of premises to a licensee. Bishop v. Stewart, 234 Miss. 409, 106 So.2d 899 (1958). Something more is required than mere inadvertence or lack of attention. There must be a more or less extreme departure from ordinary standards of care. The conduct must differ in quality, as well as in degree, from ordinary negligence, and must involve a conscious disregard of a known, serious danger. Prosser, Torts (2d Ed.1955), Sec. 77. (238 Miss. at 102, 117 So.2d at 458).

The appellee’s contention that this Court should abolish the distinction as to the duty owed trespassers, licensees and invitees was laid to rest for the time being in Astleford v. Milner Enterprises, Inc., 233 So.2d 524 (Miss.1970).

The testimony of the engineer, Grant, as detailed above with reference to facts surrounding the accident, demonstrates that he did everything reasonably within his power to stop the train after discovering Ishee’s perilous position. As in Illinois Central Railroad Company v. Ash, 128 Miss. 410, 91 So. 31 (1922), we are unable to say that the statement of facts as given by the engineer and other members of the crew is unreasonable, and we do not think there is any evidence, either physical or testimonial, which would warrant a jury in reaching the conclusion that their testimony was untrue.

The testimony of the witness, Wol-verton, as to the results of an experiment conducted by him in November, 1973, some six months after the accident and under significantly different circumstances than those existing at the time of the accident was inadmissible in evidence and the objection thereto should have been sustained. The record discloses by the testimony of witnesses and photographs in evidence that at the time of the accident in May, weeds were growing along the right-of-way quite heavily at the accident scene, while at the time of the experiment, the right-of-way having been cleared, there were but few weeds that would interfere with sighting a person lying on the right-of-way with his head on the rail. Moreover, the experiment was conducted from a stationary stepladder at an elevation of nine feet after Wolverton had told his helper to lie down at a particular point on the railroad track, while the appellant’s view at the time of the accident was from a train traveling 28 miles per hour at a time when the engineer was performing all the duties incident to operating a locomotive. From this experiment, Wolverton testified that he could see his helper lying on the tracks from distance of 9SS feet.

In order for an experiment of this type to be admissible in evidence, it is not required that all the conditions shall be precisely reproduced, but they must be so nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the test is directed. As said in Harrison v. Southern Railway Company, 93 Miss. 40, 46 So. 408 (1908), the circumstances of the tests or experiments must be (1) identical, or (2) nearly identical, with those with which the experiments are sought to be compared; and all the authorities are to the effect that these questions are largely within the sound discretion of the trial judge, and that the only effect of a variation between a precise and a substantial reproduction is as to the weight of the experimental evidence rather than its admissibility. Brown v. State, 176 Miss. 448, 169 So. 837 (1936). In the case sub judice, the particular- issue to which the test was directed was the distance that Ishee could be seen as he was lying on the railroad right-of-way with his head on the rail. Therefore, the presence of weeds substantially in the amount that existed at the time of the accident was of vital importance to the experiment for it to have had any probative value whatsoever. Moreover, this type of experiment was criticized in Yazoo & M. V. R. Co. v. Huff, 111 Miss. 486, 71 So. 757 (1916), where the Court said:

The plaintiff, by taking certain measurements after the accident, attempted to show that an engineer could have seen the small child a distance of at least five hundred feet. We do not think, however, the actions of the engineer should be viewed in the light of a calm and deliberate test, made by witnesses standing on the track and looking intently at a small child, which they knew was being put upon the track for the very purpose of making the test. The engineer of a train has many duties to perform, and it is not unreasonable that he, as he says, did not, in fact, see the object at all until within one hundred and fifty feet of the child, and when it was absolutely too late to prevent the injury. (111 Miss. at 491-492, 71 So. at 758).

We would also point out that the trial court erred in granting instruction no. 6 with reference to the presumption of negligence arising out of the operation of a locomotive, etc. as set forth in Mississippi Code Annotated section 13-1-119 (1972). When the facts surrounding the accident are in evidence, the presumption disappears and negligence must be determined from all the facts. Fayard v. Louisville & N. R. Co., 48 So.2d 133 (Miss.1950); Louisville & N. R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397 (1932); New Orleans & G. N. R. Co. v. Walden, 160 Miss. 102, 133 So. 241 (1931); Stapleton v. Louisville & N. R. Co., 265 F.2d 738 (5th Cir., 1959).

It is not necessary that we reach the remaining assignments of error.

There is no evidence in this record which would warrant a jury in finding that the appellants willfully or wantonly injured the appellee Ishee or that they failed to use reasonable care after discovering his position of peril; therefore, we are of the opinion that the motion of the appellants for a judgment notwithstanding the verdict of the jury should have been sustained.

The judgment of the lower court is reversed and judgment entered here for the appellants.

Reversed and rendered.

GILLESPIE, C. J., and PATTERSON, INZER, ROBERTSON, SUGG and BROOM, JJ., concur.

APPENDIX

Q. Where did you get when you got into Mr. Sims’ car ?
(MR. ISHEE):
A. I got into the back seat.
Q. Where did you get out ?
A. I don’t know.
Q. You don’t know where you got out?
A. No, sir.
Q. All right. And you don’t remember anything from that instant till you woke up in Community Hospital?
A. I don’t remember getting out of the car. I don’t remember anything after that until I woke up in the Community Hospital in Laurel, Mississippi.

Officer Temple who arrived on the scene shortly after the accident testified that he smelled antiseptic on Ishee’s breath; that part of a bottle of Smith’s antiseptic was found near Ishee; and that the antiseptic contained alcohol. The locomotive engineer, T. B. Grant, and other witnesses, also testified that they smelled alcohol on the appellee’s breath at the scene of the accident.

The doctor who saw Ishee at the emergency room of the Jones County Community Hospital at approximately seven or eight o’clock in the evening on the date of the accident responded to questions on cross-examination as follows:

Q. Now I believe when Mr. Ishee got there you said he was — I jotted this down — “He was incoherent; he was uncooperative; he was raging.” Dr. Holder, is it not true that he was so drunk that you had to sober him up before you could find out how much he was hurt ?
A. Yes, sir.
Q. In other words, when you first saw the man, in your opinion as an orthopedic surgeon — medical doctor, he was thoroughly and completely drunk ?
A. I thought so, yes, sir.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Eddie LIDDELL, Appellant.
    No. 56130.
    Supreme Court of Louisiana.
    Sept. 5, 1975.

      Sam J. Chauppette, Lawrence J. Genin, Chauppette, Genin, Mendoza & Parent, Marrero, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Robert B. Evans, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Gretna, for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to fifteen years at hard labor. Upon his appeal, he relies upon three perfected bills of exceptions, as well as upon an alleged error allegedly patent on the face of the record. We find no reversible merit to these contentions and therefore affirm :

(1) Bill of Exception No. 1: The trial court did not err in denying the defendant’s challenge for cause of the prospective juror Patterson, who was later peremptorily challenged. Despite initial honest answers indicating misunderstanding of the presumption of innocence, by further interrogation the trial court was satisfied that the juror would apply the presumption and accept the law as given him by the court. Tr. 25. We find no abuse of discretion in this ruling. State v. Richmond, La., 284 So.2d 317, 325 (1973) and the decisions thereat cited.

(2) Bill of Exception No. 2: On the showing made, we are unable to hold that the defendant was prejudiced or deprived of any right of a jury panel selected at random from a fair cross-section of the parish. See Rule XXV, Rules of Supreme Court (1974). The complaint is primarily based on the trial court’s exercise of its discretion to excuse prospective veniremen prior to trial, La.C.Cr.P. art 783, and we are unable to find any abuse in this regard. See State v. Witherspoon, 292 So.2d 499 (La.1974) and State v. Stephenson, La., 291 So.2d 767 (1974).

(3) Bill of Exception No. 5: The defendant was not entitled to have the clerk of court testify as to certain public records concerning the rulings in other criminal prosecutions in which a State witness had testified. While direct evidence as to the witness’s allegedly incorrect identifications of other suspects may have been admissible, we are cited to no authority which makes independently relevant or admissible the proceedings themselves of other prosecutions against other defendants, at least without proper foundation (such as of a prior inconsistent statement therein contained).

(4) The defendant also argues an alleged error ascertainable by mere inspection of the pleadings and proceedings and without inspection of the evidence (i.e., patent error), as to which no objection need be made to preserve the matter for appellate review. La.C.Cr.P. art 920(2). The complaint is based upon the trial court’s comment to a witness that he must be “confused”, in an attempt to get clarification of a confusingly inconsistent statement the witness incidentally made in seemingly a slip of the tongue.

No objection was made to the question or to the witness’s clarification at the cime. A failure to object to an allegedly prejudicial comment by the judge during the trial on the merits is deemed to waive the potential error. State v. Neal, 275 So.2d 765 (La.1973). The evidence of such trial, including the judge’s unobjected to comment contained therein, is not part of the record for purposes of finding patent error. State v. Refuge, 300 So.2d 489 (La.1974).

Decree

For the reasons assigned, we affirm the conviction and sentence.

Affirmed.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Bob DONNELL.
    No. 56063.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Sonny N. Stephens, Winnsboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., S. E. Lee, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Bob Donnell was indicted by the grand jury for the Parish of Franklin for violating La.R.S. 14:31, which prohibits manslaughter. He was tried by a jury on November 21-22, 1974, found guilty, and sentenced to serve three years at hard labor in the custody of the Department of Corrections. Defendant appeals his conviction and sentence to this court.

Article 920 of the Code of Criminal Procedure sets forth the scope of appellate review :

The following matters and no others shall be considered on appeal:
(1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

La.Code Crim.P. art. 920 (1966), as amended, La.Acts 1974, No. 207, § 1, effective July 31, 1974. The Official Revision Comment to this article states:

The 1974 amendment to clause (1) basically conforms the article to the assignment of errors procedure. For errors to be included in the assignment of errors reviewable on appeal, the requisite procedures must have been followed. See Arts. 841, 842, 844, 845, 851, 859.

Defendant has not complied with the assignment of errors procedure. Specifically, he has failed to follow the provisions of article 844 requiring that the written designation of those errors that are to be urged on appeal be filed with the trial court. Consequently, the alleged trial error of which defendant complains in his brief is not before us for review. State v. Shillow, 310 So.2d 103 (La.1975).

Likewise, we have reviewed the record for errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence and have found none. La.Code Crim.P. art. 920(2) (1966), as amended, La.Acts 1974, No. 207, § 1, effective July 31, 1974.

DECREE

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

BARHAM, J., dissents for reasons assigned in State v. Shaw, 318 So.2d 4 our docket today.


author: SANDERS, Chief Justice. BARHAM, Justice

text:
    STATE of Louisiana v. Peter SHAW.
    No. 56000.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Sonny N. Stephens, Winnsboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., S. E. Lee, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant by bill of information with Cattle Theft in violation of LSA-R.S. 14:67.1. The jury found the defendant guilty as charged. The trial judge sentenced the defendant to a term of five years in the custody of the Louisiana Department of Corrections.

In his brief to this Court, defendant asserts that the State failed to establish that the crime was committed in Franklin Parish, that the search and seizure were illegal, and that the trial court erroneously admitted a confession.

We note, however, that the defendant filed no assignments of error in the trial court as a basis for the appeal. See LSA-C.Cr.P. Art. 844, as amended by Act 207 of 1974. Hence, under Article 920 of the Louisiana Code of Criminal Procedure, our review is limited to errors “discoverable by a mere inspection of the pleadings and proceedings.” See State v. Shillow, La., 310 So.2d 103 (1975). We have examined the record and find no such errors,

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

BARHAM, J., dissents with reasons.

BARHAM, Justice

(dissenting).

I respectfully dissent, being of the opinion that the record before this Court is sufficient for full review of the errors assigned by the defendant in brief. This case was docketed for two months in this Court before argument during which time the Court could have been cognizant of the lack of assignment of errors to the trial court. Moreover, it has now been held under advisement by this Court since argument for more than an additional two months. This Court had ample opportunity to permit the trial court to accept assignment of errors to cure the defect in the record. Failure to review at this time is the denial of defendant’s right to appeal. Defendant will certainly obtain an out-of-time appeal upon application for writ of habeas corpus. All of this will delay the appellate procedure and justice for an additional six months.

The Code provision for assignment of errors has been demonstrated to be unworkable when it requires that the assignment of errors be made to the trial court. It is this Court — the appellate court— which needs to know what error is assigned and where to locate the error in the transcript filed on appeal. So long as the provision provides that the trial court shall receive the assignment of error it behooves this Court in the interest of justice, in the exercise of its rule making power, all for the expeditious handling of criminal appeals, to require the trial court to complete the record even after the appeal is lodged when the sole omission is the assignment of errors to the trial court.

The majority opinion shows clearly that we know what error is complained of and where that error is to be found. We refuse appellate review in this case on a mere technicality.

I respectfully dissent from the refusal to give full appellate review. See my dissent in State v. Donnell, 318 So.2d 3 on the docket of this Court this day.


author: SUMMERS, Justice.

text:
    Adeline ARDOIN et al. v. CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
    No. 55956.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.

      Aaron Frank McGee, Guillory, McGee & Mayeux, Eunice, for plaintiffs-applicants.
    William O. Bonin, Landry, Watkins, Cousin & Bonin, New Iberia, for defendant-respondent.
   SUMMERS, Justice.

A contract dispute is involved here between the plaintiffs, affecting their lands located south of Louisiana State University at Eunice, and the defendant utility Central Louisiana Electric Company, Inc. The controversy arises over a contract whereby the plaintiffs granted a right of way over their large tract of land to enable defendant to construct an electric transmission line to service their lands and the facilities on the LSU-E campus. At the same time plaintiffs negotiated for an extension of defendant’s water service to their property consisting of approximately 1,000 acres. It is this latter contract which is in question.

By the water service contract dated October 11, 1967 a twenty-foot wide right of way was granted along the northern boundary of plaintiffs’ property for an eight-inch water line, construction by defendant to be commenced within eight months and prosecuted with diligence. The agreement also granted defendant “the exclusive right to furnish water” to plaintiffs’ property. It declared that the grant was a covenant running with the land and “Any water furnished by the Grantee (defendant) pursuant to this agreement shall be furnished under the standard terms and conditions and current rates then in effect with reference to the furnishing of water by Grantor to other water users in the immediate vicinity of this grant.” Further, by the agreement, the defendant utility “obligates itself to provide for and furnish the water needed by users owning and/or occupying the lands” belonging to plaintiffs.

Acting pursuant to this agreement, defendant constructed the eight-inch water line to plaintiffs’ property within the right of way as an extension of its nearby water main serving the city of Eunice. The entire construction involved 3,290 feet of water main at a cost of $11,613, all of which was, according to the agreement, borne by defendant.

In 1971 plaintiffs made preliminary plans for developing two small subdivisions in the southern portion of the large tract. Relying upon their agreement, they requested that defendant provide water service to the subdivision at defendant’s expense by extending the water main along the road running through their property to the site of the proposed subdivision. These proposed subdivisions were situated 9,600 feet, or more, from the terminus of defendant’s water main along the northern edge of plaintiffs’ large tract. Costs of this construction would be approximately $60,000.

Defendant stood ready and willing to provide water service to the site, but contended that cost of the extension of the water main would have to be provided by plaintiffs in accordance with the “Standard Terms and Conditions” promulgated by the Louisiana Public Service Commission. They refer to the following provisions (paragraph S) of the Standard Terms and Conditions as decisive of the issue:

“Where an extension of the Company’s distribution main along a public street or highway is necessary to make service available to the Customer, the Company will bear the cost of such extension up to a length of 40 feet. The cost of any necessary additional main extension along a public street or highway or the entire cost of any extension on private property shall be advanced to the Company by the Customer. Such costs shall be determined by the Company and shall not be less than one dollar ($1.00) per foot of such additional main. This advance shall not bear interest but will be refunded to the customer at the rate of not less than $50 for each additional customer served directly from the extension within five (5) years from the date of installation. In no event, however, shall the amount refunded exceed the amount of the original advance.”

Evidence proferred by plaintiffs and defendant establish that when the contract was confected 'in 1967 defendants were led to believe that portions of plaintiffs’ property would be developed as residential subdivisions. If this occurred, defendant reasoned, it would soon have customers who would justify the expense of extending their water mains to plaintiffs’ property. However, at the time of the request for the further extension in 1972 the development had not taken place, and only one residential user of water (one of the plaintiffs) had requested service.

When the parties could not agree, plaintiffs brought suit for specific performance or, alternatively, for cancellation of the contract. Exception of no cause of action and motion for summary judgment were filed by defendant. The exception of no cause of action was overruled and the motion for summary judgment was denied. Judgment was rendered in the trial court decreeing that the Standard Terms and Conditions had been incorporated into the agreement by reference and these controlled the issue. Accordingly, that court held that defendant was not obligated to extend the water main as requested by plaintiffs unless plaintiff paid the cost in accordance with the Standard Terms and Conditions. Plaintiffs’ demands were, therefore, rejected. On appeal to the Third Circuit, the judgment was affirmed. La.App., 306 So.2d 348. Certiorari was granted on plaintiffs’ application. La., 309 So.2d 677.

Although both plaintiffs and defendant contend that the agreement is clear and unambiguous, each reads it differently and they arrive at opposite conclusions from its terms. In our view the language of the agreement when considered with the Standard Terms and Conditions makes the obligations of the parties plain and unequivocal on the issue before us. Its language makes certain that extensions of water mains shall, except for the first forty feet, be made at the expense of the customer requesting the water service with provision for refunds as stipulated in the Standard Terms and Conditions.

Plaintiffs contend that unless defendant installs the water main extension at its expense there is no consideration for the agreement which gives them the exclusive right to furnish water to the property. As we read the agreement, however, there are binding obligations upon defendant which provide the necessary consideration to support the contract. Aside from the construction of the extension along the northern edge of plaintiffs’ property, defendant is bound to furnish water to these properties, a substantial and onerous obligation requiring that they provide a reliable source of supply, maintain the mains, and furnish, as needed, an acceptable quality and adequate quantity of water to meet their customer’s needs. What plaintiffs overlook, however, is that this obligation is dependent upon a condition, the condition being that all extensions of the water mains, required to provide that service, must be provided at the customer’s cost.

Thus, for similar reasons, the argument is untenable that plaintiffs’ consent is vitiated because there was error as to the principal cause of the contract. It is based upon the supposition that plaintiffs believed defendants would be required to provide the necessary extensions of the water mains to accomplish the purpose of the contract. In other words, if defendant is not obliged to extend the mains as they understood the contract required, their misunderstanding is error which vitiates their consent. Such a contention cannot stand in the face of the contract’s plain and unambiguous language.. Nothing about the contract or, for that matter, the facts upon which it was based, indicates that there was error which would form the basis for avoiding the contract for lack of consent. La.Civil Code art, 1823.

A claimed error, as in the instant case, cannot have the effect of voiding a contract otherwise complete as to intent and purpose. Such a result impairs the sanctity of obligations and nullifies the effect of law to which they are entitled. La.Const. art. IV, ¶ 5 (1921); La.Civil Code art. 1901. For when the intent of the parties is evident and lawful, no law can operate to enlarge or restrain that intent. La.Const. art. V, ¶ 5 (1921); La. Civil Code art. 1963. It follows from these principles that judges cannot refuse to apply the precise clauses of agreements legally formed even on the pretense of interpretation or equity. Aubrey et Rau, Obligations, ¶¶ 346, 347 (Translations by La. State Law Institute).

For the reasons assigned, the judgment of the Court of Appeal is affirmed.


author: CALOGERO, Justice.

text:
    H. B. “BUSTER” HUGHES, INC., in its own right and as assignee of Plaquemines Parish Commission Council v. Sherman A. BERNARD et al.
    No. 56001.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Sidney W. Provensal, Jr., Provensal & Fitzmaurice, New Orleans, for plaintiff-applicant.
    Sam O. Buckley, Keiler & Buckley, New Orleans, for defendants-respondents.
   CALOGERO, Justice.

Plaintiff, H. B. “Buster” Hughes, Inc., sued Sherman A. Bernard and the Sherman A. Bernard House Moving and Shoring Corporation for unpaid rental for the sublease of a manned crane barge and the same defendants, along with Thomas Jordan, Inc., for damages resulting from the negligent operation of the crane barge in fulfilling a contract of the Bernard corporation with the Plaquemines' Parish Commission Council. The contract was for the relocation of eight camps from near a proposed hurricane levee construction site to other locations. The operator of the crane barge, in connection with its maneuvering, had mistakenly excavated a flotation canal across a portion of marshland which was to serve as a portion of the base of the proposed hurricane levee.

Following the excavation, and because time was of the essence, Hughes, sublessor of the crane barge, was persuaded by the President of the Plaquemines Parish Commission Council to arrange and to pay for filling the excavated area with shells without awaiting determination of fault, corresponding civil liability and/or negotiated repair by the responsible party or parties. After such remedial work was completed, the Plaquemines Parish Commission Council assigned to plaintiff any claims the parish might have arising from the incident. This accounts for Hughes, Inc. being the party asserting the damage claim for $25,-490.97, the cost expended for repair of the levee base.

Numerous pleadings, including the petition and reconventional and third party demands, were filed in the trial court by the four litigants, H. B. “Buster” Hughes, Inc., Sherman A. Bernard, Sherman A. Bernard House Moving and Shoring Corporation, and Thomas Jordan, Inc. In view of the restrictive nature of the issues before us, we decline to discuss the substance of those pleadings and the disposition of the myriad claims in the trial court and the court of appeal except to the extent which follows. The court of appeal opinion amply discusses each of these other matters. See H. B. “Buster” Hughes, Inc. v. Bernard, 306 So.2d 785 (La.App. 3rd Cir. 1975).

The sole legal issue which we will consider is whether the court of appeal erred in reversing the judgment of the district court insofar as that court had cast Sherman A. Bernard personally on the damage claim. The trial court’s basis for holding Bernard personally liable was a finding that Bernard had not with due care restricted, controlled and supervised the barge operator and had failed to communicate to the barge operator knowledge concerning the location of the proposed hurricane levee; further, the trial court noted that Bernard in his answer to the petition admitted that he did business on occasion under the trade name and style of Sherman A. Bernard House Moving and Shoring Corporation.

In reversing this portion of the judgment and instructing the trial court on remand to exonerate Bernard from personal liability, the court of appeal reasoned that because Plaquemines Parish had contracted with the Bernard corporation, its assigned claim for wrongful excavation was limited to one against the corporation. We were prompted to grant a writ of review on this point because of the belief that under appropriate circumstances Bernard might be personally liable to Plaquemines Parish notwithstanding that their contract was with the corporation. We have therefore reviewed the record to determine if the facts demonstrate that Bernard was personally at fault in connection with the negligent damaging of the marshland levee base.

It is undisputed that Bernard is the principal corporate officer of the Sherman A. Bernard House Moving and Shoring Corporation and also the exclusive or dominant stockholder in that corporation. Furthermore, it is clear that the contract for the relocation of the camps was a contract between the Plaquemines Parish Commission Council and the Sherman A. Bernard House Moving and Shoring Corporation. Accordingly, any fault on the part of the barge operator or oiler is chargeable to his employer, the Bernard corporation, and not to Bernard personally.

Dredging of the flotation canal across the levee base occurred on a weekend when neither Bernard nor his crew was present. Apparently the only individuals present were the barge’s operator and oil-er, and neither of these individuals testified at trial. Oxner, the barge operator, was in West Africa at the time of trial and was thus unavailable. His deposition had been taken at an earlier time by plaintiff’s attorney, but as notice of the deposition proceedings had not been given defendant as required by Article 1451 of the Louisiana Code of Civil Procedure, the trial court refused to allow the deposition to be introduced at trial other than as a proffer. Plaintiff has not disputed this ruling.

With the exclusion of the Oxner deposition, the sole evidence at trial shedding any light on Bernard’s possible personal negligence was the testimony of Bernard himself. Bernard testified that he was at the site when the crane barge and its personnel arrived and that while present he personally supervised removal of the camps. The camps were situated in or near Adams Bay, a body of water fronting on the marshland which in turn is in front of the old levee. The camps were to be moved to this out-moded levee by means of access canals, one running parallel to the levee and two others running perpendicular to the levee through the marsh. Three of the camps which were located on one of the perpendicular access canals had been successfully moved to the old levee prior to the negligent excavation of the marsh. The camps which were next to be removed were situated in the bay, directly across the marshland from the old levee.

Bernard admitted that he gave Oxner no maps, charts or diagrams of the area. He testified that the camps, access canals and marshland were clearly visible from the levee and that he accordingly just gave Oxner an “oral map.” Bernard specifically testified that when he left the site on Friday, he instructed Oxner to move the crane barge out through the access canals to the camps in the bay. He denied that he instructed Oxner to cut a canal through the marshland, an alternate procedure which would perhaps more conveniently have facilitated the required movement of the camps, but instead he testified simply that he expected Oxner to be in position in the bay ready to proceed with the actual moving of the camps the following Monday.

The law is settled that if an officer or agent of a corporation through his fault injures another to whom he owes a personal duty, whether or not the act culminating in the injury is committed by or for the corporation, the officer or agent is liable personally to the injured third person, and it does not matter that liability might also attach to the corporation. Article 2315 Civil Code; Canter v. Koehring Company, La., 283 So.2d 716 (1973); 3 Fletcher Cyclopedia of the Law of Private Corporations, section 1135; 19 Am.Jur.2d, Corporations, section 1382.

Bernard was on the property of Plaquemines Parish because of his status as a corporate officer of the Sherman A. Bernard House Moving and Shoring Corporation. While on the property he owed personally to Plaquemines Parish the same duty which any person owes to another, that is, the duty not to cause damage to the property of the other. Under the circumstances of this case, however, we cannot and do not conclude that Bernard personally breached the duty which he owed to Plaquemines Parish, There is no evidence in the record to show that Bernard instructed Oxner to excavate the flotation canal. Nor can we conclude that Bernard was in any other respect personally at fault. His uncontroverted testimony is that he instructed Oxner to proceed only into the bay beside the camps. There is no evidence that Oxner was not a competent, trustworthy employee (a borrowed servant), and accordingly Bernard was under no duty to instruct Oxner as to various activities which Oxner should not undertake.

For the foregoing reasons we find applicant’s assignment of errors without merit and recall our writ.

The decision of the Court of Appeal is affirmed and the case remanded to the district court for further proceedings consistent with the opinion of the Court of Appeal.

      . The barge in question was owned by Thomas Jordan, Inc. Hughes leased the barge from Jordan and in turn subleased the barge to Bernard or his corporation. The rented barge was furnished by Jordan with an operator and an oiler. While Bernard was subleasing the barge from Hughes, he had complete dominion and control over both the barge and the Jordan employees. Jordan has been exonerated from liability by the court of appeal.

      . Only plaintiff Hughes sought review of the court of appeal opinion, and its exclusive assignments of error were:
      “1. The Court of Appeal erred in reversing the judgment of the district court which awarded damages in the sum of $25,490.97 against Sherman A. Bernard personally.
      “2. In the alternative the Court of Appeal erred in not remanding the proceedings to determine the personal negligence and liability of Sherman A. Bernard.”

      .The trial court’s full reasons relative to its finding of personal liability on the part of Bernard are as follows:
      BERNARD was equally and contributorily negligent in not having restricted, controlled and supervised the operator of the barge under his control in the method of his operation and the route to be followed by the crane barge in reaching and removing the camps as a direct result of which the operator dug a trench through the marsh straight for the camps, cutting through the levee site, the location of which was fully known to BERNARD but which he negligently failed to communicate to the barge operator so that such unlawful trespass and damage could be avoided.
      BERNARD and the operator in charge of the barge were charged with the legal knowledge of knowing the exact location of the proposed hurricane protection levee which was common public knowledge. It is clear from the testimony that Bernard knew the location and the operator should have ascertained it before he destroyed the existing foundation of the proposed levee by cutting through it.

      . Tlie evidence shows that when Bernard left the site on Friday, tiie barge was in the access canal which ran parallel to and near the old levee. Counsel for Bernard makes the well-taken point that had Oxner’s instructions been to dredge a flotation canal across the marshland, the logical manner in which to proceed would have been to begin dredging from this access canal out toward the bay. The undisputed fact, however, is that Oxner “tagged” the barge through the access canals out into Adams Bay. Then, for whatever reasons, he proceeded past the camps and began dredging a canal back from the bay to the levee.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana ex rel. John Henry HALL v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 55938.
    Supreme Court of Louisiana.
    Sept. 5, 1975.

      J. Michael Percy, Polk, Foote, Randolph, Percy & Ledbetter, Alexandria, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Alfred B. Shapiro, Asst. Dist. Atty., for defendant-respondent.
   SANDERS, Chief Justice.

In 1960, the Rapides Parish Grand Jury indicted the defendant for aggravated rape in violation of LSA-R.S. 14:42. He subsequently pleaded guilty to the charge without capital punishment. The trial judge sentenced him to life imprisonment. On September 12, 1973, defendant filed a ha-beas corpus proceeding in the trial court, alleging that he was unconstitutionally detained as his plea of guilty was entered without the assistance of counsel in violation of the Sixth Amendment to the United States Constitution. After a denial of his petition by the trial court, defendant applied to this Court for' habeas corpus relief. Since it appeared that the plea was entered without counsel, we ordered an evidentiary hearing in the lower court to determine whether or not the defendant knowingly and voluntarily waived his right to counsel. After the hearing, the trial court again denied relief. Defendant then made application to this Court for writ of certiorari to review the trial court’s ruling on the evidence adduced at the hearing. On March 21, 1975, we granted writs. See La., 309 So.2d 676 (1975).

The sole issue presented is whether the defendant’s 1960 guilty plea was valid even though it was entered without the benefit of counsel. We must determine whether the defendant waived his right to counsel before pleading guilty. The United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), held that counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived by the defendant. The Court later held Gideon to be retroactive. Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

In Gideon, the defendant requested the court to appoint counsel for him as he was without funds to afford retained counsel. This circumstance, however, should not make the holding’ inapplicable here. The United States Supreme Court has stated: “(I)t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L. Ed.2d 70 (1962). This rule applies to guilty pleas as well as to trials. Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 93 L.Ed.2d 127 (1948).” In Kitchens v. Smith, supra, the United States Supreme Court again held that a conviction or guilty plea of an indigent without counsel must be set aside and “that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.” 91 S.Ct. 1089, 1090.

The evidence at the hearing ordered by this Court reveals no waiver by the defendant of his right to counsel. The defendant testified that he was unemployed at that time and did not have sufficient funds to retain counsel. He further testified that he was not advised of his right to counsel, nor was he asked if he could retain a lawyer. Both the trial judge and the district attorney serving when the defendant pleaded guilty stated that it was not customary at that time to offer counsel to a defendant pleading guilty.

The State contends nonetheless that the defendant made an intelligent and knowing waiver of his right to counsel. It relies on the following allegation made by the defendant in an earlier habeas corpus petition :

“Petitioner at the time of his appearance in court felt that he had already been apprehended for a crime and that an attorney chosen by the court would be of no use to him.”

At the hearing below, the State questioned the defendant concerning this allegation. The defendant explained that the petition was prepared for him by another penitentiary inmate from a copy of the court record and that he did not read the petition before signing it.

The right to counsel is one that the courts zealously guard under constitutional guarantees. This protecting duty imposes a serious responsibility upon the trial judge to determine whether there is an intelligent and competent waiver of counsel before a guilty plea is accepted. Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937). In our opinion, the allegation in the habeas corpus petition made long after the plea is insufficient to establish an intelligent and competent waiver when no support for a waiver can be found in the evidence relating to the entry of the plea. We hold that because he entered a plea of guilty without benefit of counsel, defendant is entitled to relief from his conviction based on the plea.

For the reasons assigned, the conviction and sentence are set aside, and the case is remanded to the Ninth Judicial District Court for the Parish of Rapides for further proceedings according to law. The defendant is to be retained in custody pending the disposition of the case.


text:
    Azana Broussard LELEUX v. LUMBERMEN’S MUTUAL INSURANCE COMPANY et al.
    No. 56142.
    Supreme Court of Louisiana.
    Sept. 5, 1975.

      Kenneth O. Privat, Pugh, Buatt, Landry & Pugh, P. J. Chappuis, II, Chappuis & Chappuis, Crowley, for plaintiff-applicant.
    Timothy J. McNamara, Davidson, Meaux, Onebane, Donohoe, Bernard, Tori-an & Diaz, Lafayette, Homer Ed Bar-ousse, Jr., Edwards, Stefanski & Barousse, Crowley, for defendants-respondents.
   SANDERS, Chief Justice.

The plaintiff, Azana Broussard Leleux, filed suit to recover death benefits under the Louisiana Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq. Made defendants were the employer, Simon and Primeaux, a partnership composed of Chester Simon and Lawson J. Primeaux, Sr., the individual partners, and Lumbermen’s Mutual Insurance Company, the alleged workmen’s compensation insurer. After Lumbermen’s Mutual denied coverage, the employer filed a third party petition against L. O. Broussard, the insurance agent who handled the policy, and Lumbermen’s Mutual, as Broussard’s principal, seeking recovery in the event the other defendants were held liable. Without reaching the issue of insurance coverage, the district court denied liability. The Court of Appeal affirmed. La.App., 308 So.2d 527 (1975). On plaintiff’s application, we granted certiorari to review the judgment of the Court of Appeal, La., 311 So.2d 260 (1975).

The deceased employee, Nelson Leleux, was hired to drive a truck for Primeaux and Simon, a partnership engaged in the drayage business. Leleux had driven a truck for Primeaux and Simon several times during the previous month. On August 12, 1972, Leleux was hauling rice from a rice drier to the Rice City Milling Company, both located in the City of Crowley. Leleux had hauled four loads and was attempting to complete his fifth load when, about noon, he suffered a cerebral vascular accident, or stroke, and died.

The evidence adduced at trial showed that the deceased was obese, weighing about 238 pounds, and had a history of hypertension, or high blood pressure. The dededent’s medical history was provided by Dr. T. L. McNeely, who examined the deceased in July of 1970, when deceased underwent a physical examination for employment by a local rice mill.

The Louisiana Workmen’s Compensation Act provides that if an employee receives personal injury by accident arising out of and in the course of his employment, the employer shall pay compensation. LSA-R.S. 23:1031.

The record reflects that a cerebral vascular accident is the rupture of a blood vessel in the brain. It is often referred to as a stroke. Since it is a breaking of blood vessels in the vascular system, there can be no doubt that it is an “accident” within the intendment of the Louisiana Workmen’s Compensation Act.

In Gorback v. Praeger, Inc., La., 310 So.2d 604 (1975), we held:

“When the ligaments, cartilages, or organs of the body give way because of exertion on the job, the ensuing disability is compensable. See Ferguson v. HDE, Inc., supra [264 La. 204, 270 So.2d 867 (1972)]; Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968).”

In the instant case, Leleux suffered his stroke while on the job. He was found approximately seven feet from his truck, which was parked and being loaded with rice. It is evident, therefore, that the accident arose out of and in the course of his employment.

It is well established, however, that for recovery under the Workmen’s Compensation Act, there must be proof of a causal connection between the employment and the accident. Prim v. City of Shreve port, La., 297 So.2d 421 (1974); Campbell v. Kansas City Southern Railroad Co., La.App., 297 So.2d 798 (1974). In Prim, we stated:

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971); Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286 (1965); Hogan v. T. J. Moss Tie Co., 210 La. 362, 27 So.2d 131 (1946); White v. E. A. Caldwell Contractors, Inc., La.App., 276 So.2d 762 (1973); Richard v. Guillot, La.App., 271 So.2d 719 (1972); Nellon v. Harkins, La.App., 269 So.2d 542 (1972).”

It is necessary only that the death or disability be precipitated by the usual actions, exertions, and conditions of the employment. Ferguson v. HDE, Inc., supra and Bertrand v. Coal Operators Casualty Company, supra.

Decedent was driving a rice truck, which when loaded weighed 26,000 pounds. The truck had no air-conditioning or power steering. The weather was very hot. The highest recorded temperature was 94° F. The area in which decedent was working was dusty. Earlier, the decedent had climbed into the back of the truck to spread rice.

The lower courts failed to find a causal relationship between decedent’s work and his stroke. The Court of Appeal, however, noted that the two medical experts who testified agreed that it is more likely that an accident of this sort would occur under the employee’s working conditions than if he had not been working. The Court of Appeal also noted that both physicians testified that a stroke is usually associated with high blood pressure, and that a hypertensive person is more susceptible to a cerebral vascular accident than a person with normal blood pressure.

In Bertrand v. Coal Operators Casualty Company, supra, we held:

“. . . [I]n workmen’s compensation cases ... it matters not that the accident could have occurred at another place and at another time or even at any time. We have said repeatedly that it is immaterial that the disability could have been brought on by causes other than trauma, if in fact trauma on the job which meets the standard of ‘accidental injury’ within the Workmen’s Compensation Act is a disabling factor.”

The causal relation may be inferred when there is proof of an accident during the course of employment and an ensuing disability or death with no intervening cause. Gradney v. Vancouver Plywood Co. Inc., La., 299 So.2d 347 (1974); Johnson v. Travelers Insurance Co., La., 284 So.2d 888 (1973); Bertrand v. Coal Operators Casualty Co., supra. Under the circumstances shown by the record, including the heat and physical exertion, an inference arises that the performance of his work had a causal relation to the accident. The record adequately establishes that more probably than not the work precipitated the stroke. See Prim v. City of Shreveport, supra; Bertrand v. Coal Operators Casualty Company, supra. Hence, the employer is liable for compensation.

Under the law, plaintiff is entitled to compensation at the rate of $24.37 per week for a period of 500 weeks. LSA-R. S. 23:1021(11); LSA-R.S. 23:1231-1232. The record also supports an award of burial expenses for the maximum amount of $1,000.00.

Having concluded that there is liability on the part of the employer, we must now determine whether the policy of Lumbermen’s Mutual Casualty Company provides coverage so as to make the insurer liable. The policy of insurance filed in the record was issued to Alzie, Chester, and Eldes Simon, a partnership engaged in rice farming, composed of Alzie Simon, Chester Simon, and Eldes Simon. Chester Simon stated emphatically that the income derived from the partnership did not accrue to the Simon, Simon and Simon partnership. He testified that the Simon, Simon and Simon partnership derived no benefit from the activities of the Simon and Primeaux partnership.

The evidence discloses that the deceased was employed by Simon and Pri-meaux at the time of his death and that Lumbermen’s Mutual Casualty Company had issued no employers’ liability policy to the employer. As we have observed, the only policy introduced into evidence was issued to Alzie, Chester, and Eldes Simon, a partnership composed of Alzie Simon, Chester Simon, and Eldes Simon. This Court, therefore, holds that Lumbermen’s Mutual Casualty Company has no contractual liability for the payment of compensation.

The Simon and Primeaux partnership, as well as Chester Simon and Lawson Pri-meaux, individually, allege in a third party demand that L. O. Broussard, as agent for Lumbermen’s Mutual, failed to perform his duty as an agent and secure insurance for them, knowing that the third party plaintiffs desired coverage, and, therefore, L. O. Broussard and Lumbermen’s Mutual are liable in solido for any judgment which may be cast against the third party plaintiffs.

In the present case, the third party demand was not passed upon in the trial court. The plaintiff alone appealed. The partnership defendants did not answer the appeal. Hence, the third party demand against the insurance agent was not before the Court of Appeal. Nor is it before this Court. LSA-C.C.P. Art. 2133; McCoy v. Pacific Coast Fire Insurance Co., 248 La. 389, 178 So.2d 761 (1965).

It is proper, therefore, to remand the case to the district court for the purpose of proceeding with the third party demand. LSA-C.C.P. Art. 2164; McCoy v. Pacific Coast Fire Insurance Co., supra.

For the reasons assigned, the judgment of the Court of Appeal is reversed, and judgment is rendered in favor of plaintiff, Azana Broussard Leleux, against Simon and Primeaux, a partnership composed of Chester Simon and Lawson J. Primeaux, Sr., and the partners, individually and ill solido, in the sum of $24.37 per week, commencing August 12, 1972, for a period of 500 weeks, with legal interest on each of said weekly installments from due date until paid. Judgment is further rendered in favor of plaintiff against the named defendants, in solido, in the sum of $1,000.00, with legal interest thereon from date of judical demand until paid.

It is further ordered, adjudged, and decreed that there be judgment in favor of defendant, Lumbermen’s Mutual Casualty Company, rejecting plaintiff’s demand against it.

It is further ordered, adjudged, and decreed that the fee of plaintiff’s attorney be fixed in the amount of twenty percent of the first $5,000.00 of recovery and ten percent of the recovery in excess of $5,000.00 as provided in LSA-R.S. 23:1141.

It is further ordered, adjudged, and decreed that the case be remanded to the Fifteenth Judicial District Court for the Parish of Acadia to permit that court to proceed with the third party demand.

It is further ordered, adjudged, and decreed that all costs of court be assessed against the partnership defendant, in soli-do.

SUMMERS, J., dissents and agrees with the decision of the Court of Appeal. See 308 So.2d 527.


author: DIXON, Justice. TATE, Justice

text:
    STATE of Louisiana v. Joseph MAJOR.
    No. 55965.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Rehearing Denied Sept. 30, 1975.
    Frank G. De Salvo, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On July 11, 1973 Benny Lucido was robbed of $80.00 in cash and an automobile worth $1817.00. Defendant had been attempting to buy the car from Lucido, a used car salesman. During a discussion of the price, defendant stated that he had only $1500.00. After defendant and Luci-do discussed methods of obtaining the remainder of the purchase price, defendant pulled a gun and forced Lucido to give him $80.00. Defendant then shot Lucido twice in the head and took the registration papers for the car and the car itself.

From a conviction of armed robbery by a jury and from a sentence of twenty-eight years at hard labor, defendant appeals, presenting four assignments of error to this court.

Assignment of Error Nos. 1 and 3

In both of these assignments of error, defendant alleges that he was denied due process of law by the trial court’s refusal to order the State to provide defendant with requested information.

Assignment of Error No. 1 arises from defendant’s pretrial motion for a bill of particulars and a prayer for oyer. Before trial, defendant requested through a bill-of particulars the following information:

1. location of arrest
2. time and date of arrest
3. names of arresting officers
4. whether the accused was identified
5. if identified, name of person identifying him and circumstances of identification
6. names and addresses of all witnesses to crime
7. names and addresses of all witnesses present when the accused was returned to the scene of the crime
8. names and addresses of all witnesses whose identification was less than positive
9. all favorable evidence in the State’s possession or control

Additionally, in a prayer for oyer, defendant requested the State to produce (1) all written confessions it possessed, and (2) all oral confessions made by defendant, to which the State responded that it did not have any written confessions and that the oral confessions were not subject to discovery.

The effect of defendant’s argument is to urge upon this court an extension of pretrial discovery, an extension this court has been reluctant to make (State v. Lewis, La., 315 So.2d 626, 1975; State v. Thomas, 310 So.2d 517 (La.1975); State v. Jackson, 308 So.2d 265 (La.1975)), with the exception of a few well delineated circumstances. State v. Collins, 308 So.2d 263 (La. 1975); State v. Cordier, 297 So.2d 181 (La.1974). The trial court correctly held that the State’s answer to the bill of particulars was legally sufficient. The defendant is entitled to know what the State intends to prove, but not the evidence to be used. See C.Cr.P. 484, Official Revision Comment; comment, 12 Tul.L.Rev. 457 (1952).

Also, the trial court properly refused to allow discovery of any oral confession. Although the issue is' moot, in that no oral inculpatory statement of any type was introduced into evidence by the State, as a general rule oral confessions are not subject to pretrial discovery. State v. Watson, 301 So.2d 653 (La.1974).

Assignment of Error No. 3 stems from the denial of a defense motion at the close of the State’s case in chief to have the State’s evidence file either scanned by the trial court for evidence favorable to defendant or sealed to be sent to this court on review. (In its general pretrial order the trial court had required the State to produce any exculpatory evidence; there was none, the State replied). Defendant contends that his motion is supported by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

In Moore v. Illinois, 408 U.S. 786, 794, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972), the Supreme Court of the United States recited the precepts of Brady:

“The heart of the holding in Brady is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence. . . . ”

Defendant has made no showing that the prosecution has suppressed any evidence which may have a character favorable to the accused.

Moreover, the Supreme Court in Moore made it clear that due process does not require the prosecution to “open its files” to defense perusal:

“We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case. ...” 408 U.S. 795, 92 S.Ct. 2568.

Therefore, defendant’s contention has no federal constitutional basis.

As stated above, this court has declined to broaden criminal discovery; the case before us provides no reason to change discovery procedures in criminal cases. Nor has the legislature acted to require the State to open its evidence file to defense use.

Accordingly, we hold that a criminal conviction is not subject to reversal merely because the State did not, before, during or after trial, open its evidence file to defense or court scrutiny.

These assignments of error are without merit.

Assignment of Error No. 2

This assignment of error relates to the following testimony by Benny Lucido, the victim:

“Q Would you state your name, please.
“A Benny Lucido.
“Q Okay. On that day, did anything happen to you out of the ordinary?
“A Yes, Sir.
“Q What was that ?
“A That man —
“Q What did that man do ?
“A He shot me twice.”

Defendant contends that this testimony was prejudicial and inadmissible inasmuch as he was on trial for robbery only. Defendant argues, in effect, that this testimony was an impermissible introduction of evidence of another crime.

The shooting occurred during the actual robbery; it was a part of the crime and inextricably connected to the crime charged, State v. Matthews, 292 So.2d 226 (La.1974); therefore, it was admissible as part of the res gestae. R.S. 15:447 and 448; State v. Witherspoon, 292 So.2d 499 (La.1974); State v. Leichman, 286 So.2d 649 (La.1973); State v. Jefferson, 284 So. 2d 882 (La.1973).

This assignment of error is without merrit.

Assignment of Error No. 4

In this assignment, defendant contends that a police evidence book, to which defendant objected as being hearsay, was improperly admitted into evidence during the State’s case in rebuttal. The book was apparently introduced to establish the chain of custody of evidence previously introduced during the trial, namely, a bill of sale, a motor vehicle division temporary registration certificate and a Louisiana motor vehicle registration form.

Because at this point of the trial there was no issue as to the chain of custody, we do not consider the hearsay nature of the police evidence book. Evidence is admissible only if it is “relevant to the material issue.” R.S. 15:435; State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970); State v. Melerine, 236 La. 929, 109 So.2d 471 (1959). Because at the close of defendant’s case defendant had not challenged the chain of custody, chain of custody was no “material issue;” therefore, the evidence book was improperly admitted into evidence.

Though it was error, it was not reversible error; the police evidence book merely adverted to evidence already properly admitted. Thus, the improperly admitted evidence did not “prejudice the substantial rights of the accused.” C.Cr.P. 921.

This assignment of error is without merit.

Therefore, the conviction and sentence are affirmed.

COLOGERO, J., concurs.

TATE, J., assigns concurring reasons.

BARHAM, J., concurs in the decree only and for reasons assigned by Justice TATE.

TATE, Justice

(concurring).

I concur that the conviction should not be reversed.

In reliance upon prior rulings, the trial court did not permit the defendant pre-trial access to prior oral confessions. Nor did it make an in camera inspection of the State’s files at the conclusion of the State’s case to satisfy itself that, unwittingly, the State had failed to afford the defendant access for favorable evidence in the State’s possession.

However, I think these prior rulings should be re-examined.

In the first place, this court has ordered access to oral confessions when supervisory writs have been sought before the trial. To assure fair trials, I think the defendant should and will be assured access to such statements for the same reasons of fundamental fairness that written and electronically recorded inculpatory statements are made available to aid counsel in preparing a defense or in intelligently advising the accused to plead guilty to the charge.

Further, as previously pointed by my brother Barham, our failure to provide state procedures prior to the conviction to weigh claims of Brady suppression of evidence favorable to the defendant necessitates post-conviction procedures to assure vindication of this federal constitutional right.

The issue should preferably be determined in the state courts expeditiously prior to the conviction — not only in fairness to the accused, but also to safeguard state convictions as properly obtained from protracted and duplicitous post-conviction attacks. See my concurring opinion in State v. Lewis, La., 315 So.2d 626, 631 (1975). This is the path not only of fairness (since a prosecutor’s ex parte determination may unwillingly deprive the accused of such evidence); but of judicial efficiency.

I therefore respectfully concur.

      . For a discussion of the difference between “materiality” and “relevancy,” see 4 Wigmore, Evidence 2, and McCormick, Law of Evidence, 314 (1954).


text:
    The SOUTHLAND CORPORATION, Plaintiff-Appellee, v. The COLLECTOR OF REVENUE, FOR the State of LOUISIANA, Defendant-Appellant.
    No. 56280.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
    Edwin M. Callaway, Baton Rouge, for defendant-appellant.
    John S. Thibaut, Jr., Thibaut & Thibaut, Baton Rouge, for plaintiff-appellee.
   On Motion To Dismiss The Appeal

TATE, Justice.

Pursuant to the plaintiff Southland’s prayer, the district court gave judgment declaring unconstitutional an amendment by Act 414 of 1974 to La.R.S. 47:842(5) (1950). The statute so amended establishes and regulates the collection of a tobacco tax. La.R.S. 47:841-869 (1950). The defendant Collector appeals to this Court.

The final judgment was rendered on March 11, 1975, after the effective date of the Constitution of 1974 (i. e., January 1, 1975). The parties do not dispute that the 1974 constitution provision for the appellate jurisdiction of this court, Article V, Section 5(D), applies, not the provision of our 1921 constitution replaced by it.

Under the 1921 constitution, this court had direct appellate jurisdiction of all cases in which the constitutionality or legality of a tax was contested, as well as of all cases in which a statute or ordinance was actually declared unconstitutional. La. Const, of 1921, Art. VII, Section 10(1) and (2) (quoted in full in footnote 2). By the 1974 constitution, however, a case is ap-pealable directly to this court (rather than to the court of appeal) only if “a law or ordinance has been declared unconstitutional”, La.Const. of 1974, Art. V, Section 5(D)(1) (quoted in full in footnote 1)— the former provision was omitted that tax contests were directly appealable (i. e., whether or not • the trial court invalidated the tax by its j udgment).

Based on this repeal by omission, the plaintiff Southland argues that the constitutional intent was to deprive this court of initial appellate jurisdiction of all cases in which the constitutionality of a tax is contested.

We are unable to agree. The change intended was only to provide that the mere attack upon a tax did not assure immediate direct review by this court of any judgment in the case. Thus, allegations that a tax is unconstitutional do not grant this court appellate jurisdiction.

However, when the trial court judgment actually declares a tax statute unconstitutional (or any statute or ordinance), the unambiguous language of the 1974 constitution provides: “ * * * a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional * * * ” Article V, Section 5(D). We see no intent by the 1974 constitution to exempt from this explicit provision instances where tax statutes are declared unconstitutional.

Here, a statute of this state has been declared unconstitutional. Direct appeal to this court was proper. The motion to dismiss is denied.

Motion to dismiss the appeal denied.

      . La.Const., Art. V, Section 5(D) (1974) provides :
      “In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional; (2) the defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed * * * ”

      . La.Const. Art. VII, Section 10 (1921) pertinently provides :
      “The following cases only shall be appeal-able to the Supreme Court:
      (1) Cases in which the constitutionality or legality of any tax, local improvement assessment, toll or impose levied by the state or by any parish, municipality, board or subdivision of the state is contested;
      (2) Cases in which an ordinance of a parish, municipal corporation, board or subdivision of the state, or a law of this state has been declared unconstitutional; * * * ”