author: GULOTTA, Judge.

text:
    Sam CAPITANO, Jr., d/b/a El-Cap Construction Company v. HUBER, HUNT & NICHOLS, INC. and Blount Brothers Corporation (a joint venture) and Louisiana Stadium and Exposition District.
    No. 9107.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.

      Cecil M. Burglass, Jr., Burton G. Klein, New Orleans, for plaintiff-appellee.
    Gordon, Arata, McCollam & Watters, Blake G. Arata, Andrew L. Gates, III, New Orleans, for defendant-appellant, Huber, Hunt & Nichols, Inc. and Blount Brothers Corp. (A Joint Venture).
    Before GULOTTA, BEER and GAR-SAUD, JJ.
   GULOTTA, Judge.

Defendant-general contractor for the Louisiana Superdome appeals from a $150,-000.00 unjust enrichment award in favor of plaintiff-subcontractor for excavation and demolition work performed during the construction of the Dome. It is defendant’s contention that plaintiff is not entitled to any recovery or, alternatively, that the award should be limited to $19,757.00 with interest from date of final judgment. In a reconventional demand, defendant claims entitlement to $270,965.00. Plaintiff has answered the appeal, seeking either 1) an increase to $781,390.00, the contract price or 2) an increase to $392,700.00 ($197,700.00 for work performed and $200,000.00 for loss of anticipated profits) plus 10% attorney’s fees. We reduce the award to the sum of $93,540.00 with interest from date of final judgment but affirm the judgment in all other respects.

FACTUAL BACKGROUND

Defendant entered into negotiations with Sam Capitano in anticipation of awarding to Capitano the subcontract for excavation and demolition of the Dome Stadium site. On May 12, 1971, their negotiations were reduced to a document entitled “Rider No. 1” which was to be incorporated in a subcontract to be signed at a later date.

Rider No. 1 described in detail the work to be performed by plaintiff and set forth lump sum prices for particular phases of the job in addition to unit prices for estimated quantities of materials to be removed or placed on the job site. The total approximate subcontract price set forth was $781,-390.00. The document was not signed by both parties.

On May 27, 1971, defendant authorized Capitano to begin the excavation and demolition of the basement of the Swift & Company Building, one of the items of work to be performed. Plaintiff began work as directed and on August 11, 1971, subsequent to sale of the stadium bonds, he received a telegram from defendant authorizing him to proceed with other aspects of the work as outlined in Rider No. 1.

Capitano continued working on the site until September 28, 1971, when he left the job. He was subsequently replaced by another excavation and demolition subcontractor. In early October, 1971, plaintiff submitted to defendant a request for payment of the sum of $192,700.00. This total was itemized in plaintiff’s request as follows:

1. Mobilization $ 4,700.00
2. Demolition of the Swift Building (100% completion) 9,800.00
3. Demolition and storage (70% completion) 63,000.00
4. Excavation and grading (15% completion — At trial, plaintiff testified that the 15% figure on the request was an error and should have been 40%.) 86,800.00
' 5. Excavation and disposing of materials — 25,000 yards 25,000.00
6. Sand and extras ordered 3.400.00
$ 192,700.00

Defendant refused payment and this litigation followed.

It is undisputed that prior to September 28, 1971, defendant had paid plaintiff a total of $25,200.00 for work performed. At issue are 1) whether a contract had been entered into between the parties and whether a breach of that agreement had taken place, and 2) if no contract existed, the amount to which plaintiff is entitled for demolition and excavation work performed.

CONTRACT

The trial court rejected plaintiffs contention that a contract existed entitling plaintiff to recover the $781,390.00 or contract price. The record supports this conclusion.

Rider No. 1 provides:

“This subcontract is awarded subject to approval of the Subcontractor by the Owner and/or his representative . .

The evidence is clear that the owner never approved Capitano. Further, Rider No. 1 provides that the subcontractor is to furnish a performance bond in the amount of the approximate subcontract price and to carry insurance in the same minimum limit as required of the contractor, which in this case was a $1,000,000.00/$5,000,000.00 liability policy. Plaintiff, by his own testimony, indicated that no performance bond was furnished and that the maximum amount of insurance coverage provided by him was a $100,000.00/$300,000.00 policy. Although it is true, as pointed out by plaintiff, attempts were made to modify the insurance requirements to accommodate Capitano by allowing him to provide insurance on particular phases of the job on a piecemeal basis in order to circumvent the $l,000,000.00/$5,-000,000.00 requirement, no final arrangements were made and no insurance was furnished. It was during these negotiations that Capitano left the job. Under the circumstances, we conclude, as did the trial court, that “ . . . Rider 1 was never reduced to a binding contract . .

ACTIO DE IN REM VERSO

Plaintiff, though not performing under a contract, did, nevertheless, work on the job site pursuant to authorization by defendant. Plaintiff’s claim is one in the actio de in rem verso. See Oil Purchasers, Inc. v. Kuehling, 334 So.2d 420, 425 (La.1976).

Five prerequisites to recovery are necessary under this concept: 1) an enrichment, 2) an impoverishment, 3) a connection between the enrichment and the impoverishment, 4) an absence of “justification” or “cause” for the enrichment and impoverishment, and 5) plaintiff’s lack of any other remedy at law. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); Edmonston v. A-Second Mortgage Company of Slidell, Inc., 289 So.2d 116 (La.1974). Recovery is based upon the principle that one who is unjustly enriched at the expense of another must make restitution of the amount of the enrichment or in some cases the amount of impoverishment. Minyard v. Curtis Products, Inc., supra. See also Custom Builders & Supply Inc. v. Revels, 310 So.2d 862 (La.App.3d Cir. 1975). In an actio de in rem verso case, as in any other, the burden is upon plaintiff to satisfy these prerequisites.

The record is clear that defendant was enriched as a result of plaintiff’s work. Huber-Hunt billed to and received from the Dome owners a total of $255,000.00 for excavation and demolition work through October 31, 1971. A part of this work was performed by plaintiff. Also clear is the fact that plaintiff was impoverished. The undisputed testimony of the demolition subcontractor who succeeded plaintiff on the job was that Capitano had incurred unpaid equipment and labor costs in the sum of $64,162.32. Because no contract or valid juridical act existed, there is an absence of “justification” or “cause”. See Edmonston v. A-Second Mortgage Company of Slidell, Inc., supra. Furthermore, plaintiff has no other legal remedy. The prerequisites for establishing entitlement under the actio de in rem verso have been met in this case.

More perplexing, however, is the amount of entitlement. The commissioner’s recommendation, adopted by the trial judge, is the sum of $150,000.00. We have examined the lump sum and unit prices set forth in Rider No. 1, plaintiff’s request for payment, defendant’s receipt of payment from the Dome owners, the testimony of the witnesses and the factual findings of the commissioner in an effort to ascertain the components of the total award, but we are unable to explain the figure reached by the trial court. While we find no support in the record for the $150,000.00 award, there exists evidentiary support for the trial court’s factual conclusions which do support a substantial award in favor of plaintiff.

Although we conclude no contract came into existence, nevertheless, the agreed upon amounts for payment, as set forth in Rider No. 1, in anticipation of a contract (provided other conditions had been met), serve as a fair value of the work. See North Development Company, Inc. v. McClure, 276 So.2d 395 (La.App.2d Cir. 1973).

One aspect of plaintiff’s excavation and demolition work involved removal of the foundations of the Swift Building, a structure which had previously existed on the construction site, for an agreed amount of $35,000.00. In reasons for judgment, the commissioner stated that the $150,000.00 award “includes the balance due . . on the Swift Building”. The $25,200.00 amount paid to plaintiff by defendant was for demolition work on the Swift Building and a balance of $9,800.00 remained. According to defendant’s project manager, only 80-85% of the Swift Building work was completed by plaintiff. Although plaintiff stated that he had virtually finished the job, his testimony is clear that he completed 98%. The trial court’s award, which includes the sum of $9,800.00, represents the full balance owed based on 100% completion. Plaintiff is bound by his own testimony, however, and accordingly is entitled only to $9,100.00, representing 98% completion of the Swift Building work (item # 2 on plaintiff’s list).

Another part of plaintiff’s claim (item # 3 on plaintiff’s list) involved the demolition and removal of the streets, curbs, sidewalks, pavements and building slabs on the construction site; the removal and storage of granite pavement blocks; and the demolition and removal of underground obstructions to avoid interference with pile driving and construction. The commissioner found that the construction site was a “mass of concrete, asphalt and cobblestones” when plaintiff commenced the job. He further found that plaintiff “took out 80% of this surface area”, cleared areas to permit pile driving operations and excavated and relocated cobblestones. This factual finding is supported by the testimony of plaintiff and two of his employees. The estimation of completion of this aspect of the work given by these witnesses ranged from 70% to 85%. Also, as pointed out by the commissioner, streets and curbs are not visible in progress photographs of the site taken in early October, 1971. Though the excavation subcontractor who succeeded plaintiff on the job testified that-a “large percentage” of the streets were intact in early October, 1971, and though defendant’s project engineer estimated that only 10% of this phase of the job had been completed by plaintiff, the trial judge (based on the commissioner’s recommendation) made a credibility determination in plaintiff’s favor. His' factual finding based on that credibility determination will not be disturbed.

The anticipated cost for this aspect of the work amounts to $90,000.00 (as set forth in Rider No. 1). Based upon the 80% completion of this phase of plaintiff’s work, we compute plaintiff is entitled to an additional $72,000.00.

A third part of plaintiff’s claim is for excavation and disposal, off site, of excavated materials which could not be reused on the job (item # 5 on plaintiff’s list). Rider No. 1 sets forth the unit prices of $.20 per cubic yard for excavation and $.80 per cubic yard for disposal of these materials. Plaintiff testified that he had removed 75,-000 cubic yards of fill from the Dome site and had sold it at $1.00 per cubic yard. His testimony was supported by an independent witness who. stated that he purchased 23,-000 cubic yards of material from plaintiff during August and September, 1971. According to plaintiff, he is entitled to $25,-000.00 for this part of the job. Defendant, on the other hand, claims plaintiff became “enriched” by $75,000.00 from the sale of the excavated material and his entitlement to recovery should be reduced by that amount.

We agree with defendant’s contention. Any amount to which plaintiff is entitled under the actio de in rem verso must be reduced by the amount received from the sale of the excavated materials. The amount received by plaintiff reduces to that extent the impoverishment sustained. We find no merit to plaintiff’s claim that once the materials were removed, they became Capitano’s property to be disposed of as he saw fit. Plaintiff’s argument may have validity if we had determined that a contract existed. However, having concluded plaintiff is entitled to recovery in the actio de in rem verso, the amount Capitano received from the sale of excavated materials is relevant in the determination of the amount owed.

In this respect, the. uncontradicted testimony is that 75,000 cubic yards of materials were removed. According to Rider No. 1, plaintiff is entitled to recover $1.00 per cubic yard or $75,000.00. Accordingly, plaintiff’s entitlement to an award for this amount ($75,000.00) is offset by the equal amount derived from the sale of the excavated materials. We therefore do not award any amount to plaintiff for fill material excavated and removed from the job site.

Plaintiff also testified that he had hauled shells and sand onto the site, had cleared an area and had constructed a reviewing stand for dignitaries attending ceremonies in connection with drilling of the first piling. These services were not included in the Rider. These costs are included in plaintiff’s claim under the headings “Mobilization” in the sum of $4,700.00 and “Sand and extras” in the sum of $3,400.00 (items # 1 and 6 on plaintiff’s list). The trial judge concluded plaintiff had done the work claimed for construction of the reviewing stand. The record supports his conclusion. We conclude that plaintiff is entitled to an additional $8,100.00 for this phase of the work.

The final basis for plaintiff’s unjust enrichment claim is for excavation and grading (item # 4 on plaintiff’s list). This phase of the work in Rider No. 1 bears a lump sum price of $217,000.00 and is described, inter alia, as excavation for pile caps. This procedure, as described in the record, involves the digging of a hole around a cluster of pilings to permit the pouring of a cement “cap” which is to serve as a foundation for the Dome. In his request for payment, plaintiff claims entitlement to $86,800.00 for this part of the work. Though it is undisputed that only 12 pile caps were poured during plaintiff’s presence on the site, plaintiff testified that he excavated a total of 40 cavities in preparation for additional pourings.

According to the testimony of defendant’s project engineer, however, pile caps are not excavated very far in advance of the actual pouring of the cement. His testimony in this respect is supported by language in Rider No. 1 which provides:

“ * * * The nature of the soil is such that the time lapse between excavating, driving piling, and pouring concrete shall be kept at a minimum.”

The trial judge did not address, in his reasons, this particular claim for payment. Under the circumstances, we consider the evidence without according the benefit of the manifest error rule.

If plaintiff’s request for payment for this part of the work is accepted ($86,800.00), it must be concluded that he completed 40% (as claimed) of the total excavation and grading price on Rider No. 1 ($217,000.00). Such a request cannot be justified in view of the fact that plaintiff only worked on the site (other than the Swift Building) from August 11 until September 28; that only 12 pile caps were poured when plaintiff left the job; and that the excavation subcontractor who succeeded plaintiff continued working on the job for over two years. Huber-Hunt’s project engineer estimated that plaintiff had completed 2% of this part of the job. His testimony was substantially corroborated by an inspector for the architect, Curtis and Davis. According to this witness, Capitano had excavated for 14 of the 800 pile caps contemplated in the construction of the Stadium. This represents approximately 1.75% completion of this aspect of the work contemplated in Rider No. 1 at a sum of $217,000.00. Accepting the 2% estimate, we conclude that plaintiff is entitled to $4,340.00, representing excavation of the 12 (or 14) pile caps and the digging of a trench.

Accordingly, we itemize plaintiff’s entitlement as follows:

1. Remainder due for demolition of the Swift Building (98% completion) $ 9,100.00
2. Demolition of streets, etc. and storage of granite blocks (80% completion) 72,000.00
3. Mobilization, sand and extras 8,100.00
4. Excavation and grading (2% completion) 4.340.00
$ 93,540.00

and arrive at a total award of $93,540.00.

We find merit to defendant’s contention that the award should bear interest not from the date of judicial demand but from the date of final judgment. Plaintiff’s suit for the value of his services is an unliquidated claim and interest can run on the award only from the date of the final judgment. Succession of Butler, 294 So.2d 512, 516 (La.1974); Sugar Field Oil Co. v. Carter, 214 La. 586, 38 So.2d 249 (1948); Liwerant v. Elwin Corporation, 206 So.2d 766 (La.App.4th Cir. 1968). Accordingly, the judgment is to bear judicial interest from the date of its finality.

We are in accord, however, with the trial judge’s dismissal of defendant’s reconven-tional demand for $270,965.00. Defendant alleges as the basis for this demand that should the court find the existence of a contract between the parties, plaintiff breached the agreement by abandoning the job and defendant consequently suffered damage when it entered into a second subcontract with another excavator who succeeded plaintiff at a subcontract price $270,965.00 higher than plaintiff’s price. Defendant also contends that additional costs resulting from plaintiff’s default offset any enrichment received by defendant through plaintiff’s work.

We find no merit to defendant’s contention on his reconventional demand based on plaintiff’s alleged breach of contract. We have concluded no contract came into existence. Accordingly, defendant cannot recover based on plaintiff’s breach of a nonexistent contract. By the same token, because defendant contracted with a second excavation subcontractor, at a cost in excess of the contemplated original contract price (between plaintiff and defendant), plaintiff cannot be denied payment for services rendered. The record is clear that services were performed by Capitano for which he is entitled to payment under the actio de in rem verso. Merely because defendant may have entered into a subsequent contract at a higher cost (which may or may not have been financially wise), cannot serve as the basis for denying plaintiff’s unjust enrichment claim. Under the circumstances, we conclude the trial judge properly dismissed defendant’s reconven-tional demand.

Accordingly, the judgment in favor of plaintiff in the sum of $150,000.00 is amended and reduced to the sum of $93,540.00 with interest from the date of judgment until paid. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Plaintiff signed the document but defendant did not.

      . The exact cause of plaintiff’s leaving the job is disputed. According to defendant, plaintiff asked to be relieved of the job because he was unable to complete it. Plaintiff, on the other hand, testified that his work was satisfactory, that he was capable of completing the job, but that defendant’s representatives told him that he had to meet a liability insurance requirement of $1,000,000.00/$5,000,000.00 or leave the job. Plaintiff was unable to meet this requirement and discontinued work on September 28, 1971.

      . This matter was heard by a commissioner and his recommendations were adopted by the trial judge.

      . Plaintiff suggests that the commissioner’s award can be explained by reference to the amounts received by defendant from the Dome owners in connection with the excavation and demolition work. Defendant’s invoices through October 31, 1971 indicate defendant received $255,000.00 for demolition, excavation and backfill or 19% of the total price of $1,330,000.00 for excavation, demolition and backfill as set forth in the general contract. Plaintiff points out that 19% of the Rider No. 1 subcontract price of $781,390.00 is approximately $147,000.00, a figure close to the commissioner’s recommendation.
      We reject this argument for the reason that the total general contract price includes defendant’s profit and expenses which are not relevant to the approximate subcontract price in Rider No. 1. A simple computation based on a percentage of the general contract price paid by the Dome owners cannot serve as a basis for calculating the value of plaintiff’s services or the extent of his impoverishment.


source: Caselaw Access Project

author: GARSAUD, Judge.

license: Public Domain

text:
    Rhonda Marie WILSON et al. v. N. W. MAGEE et al.
    No. 9152.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    Bruce J. Borrello, Metairie, for defendants-appellants.
    Before GULOTTA, BEER, and GAR-SAUD, JJ.
   GARSAUD, Judge.

The sole question presented by this appeal is one of quantum. Plaintiff sustained certain injuries when a crane was knocked off the flat-bed of a truck she was following and fell on top of her car. In the ensuing lawsuit against B & G Crane Services and Liberty Mutual, a jury awarded plaintiff $50,000 for “past, present or future pain, suffering, mental anguish, permanent disfigurement and future disability,” $12,-500 for past, present and future medical expenses, $12,500 for past, present and future loss of wages, for a total of $75,000. Defendant limits this appeal to the simple question of the abuse of the jury’s discretion in making such an award under the circumstances of the case.

As a result of the accident, plaintiff sustained a blow to the head and injuries to her neck, back and right knee. In addition she sustained numerous small cuts and lacerations from the shattered glass. The evidence is clear that Ms. Wilson was noticeably shaken by the accident and remained very nervous and distraught for a good while. She was treated at the Ochsner Foundation Hospital Emergency Room for severe muscle strains. She returned three days later .complaining still of the muscle strain, contusions, and increased pain in her right knee. Subsequently she was seen by Dr. Raul G. Reyes, who recommended hospitalization to treat plaintiff with “massage, diathermy, and steam baths twice daily” for her injuries. She received these treatments for approximately two weeks while hospitalized in Sara Mayo Hospital and was discharged on July 13, 1976.

A few weeks later Ms. Wilson consulted Dr. Kenneth Vogel, complaining of headaches. Dr. Vogel could find no neurological abnormalities and the results of an EEG were within normal limits. He recommended continued conservative treatment of her right knee by Dr. Reyes.

Due to continuing problems of dislocation of her knee, plaintiff consulted Dr. Stuart Phillips in October 1976. After X-rays, Dr. Phillips diagnosed a fracture of the patella for which surgery was performed on November 2, 1976. Her postoperative recovery was uneventful, being referred to on four occasions as “excellent” or “magnificent.” However, she wore a leg cast for about six weeks, was given an exercise schedule for rehabilitation, and still suffers a slight limp. Dr. Phillips estimated approximately 10 percent residual disability of the knee, which Dr. Reyes considered to be a fairly good result for an operation of this kind. Plaintiff also called to the court’s attention that she had become pregnant in the latter part of 1976 and as soon as she was aware of the pregnancy, in early 1977, she ceased taking all pain medication.

This case presents again the continuing conflict between our constitutional mandate to review facts and law, and the much discretion rule of Louisiana Civil Code Article 1934(3), which judicial sparring was exhaustively covered in Geisler v. Louisiana Power & Light, 346 So.2d 339 (La.App. 4th Cir. 1977), writ denied, La., 349 So.2d 879. As the court concluded in that decision, the only course open is a review of the record to determine if it can possibly support the judgment. We do not believe that a judgment of $50,000 for a ten-percent permanent disability of the knee, with the attendant surgery and hospitalization, including an excellent recuperative period, can be justified. We believe that under the rationale of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) a figure of $20,000 for general damages is appropriate, particularly considering the acute mental distress surrounding the very accident itself.

With regard to the $12,500 award for past, present and future medical expenses, it was stipulated that plaintiff’s previously incurred medical expenses up to the date of trial were $6,126.98. There is no evidence to indicate that any substantial future medical expenses will be incurred. Dr. Phillips’ report indicated that plaintiff was recovering magnificently, and made no suggestion that any further treatment would be necessary after a final followup examination in May 1977. No other doctors, nor plaintiff herself, offered any testimony to show that any future medical expenses were likely. Future medical expenses, like any other element of damages, must be established with some degree of certainty.

“Awards will not be made for future medical expenses which may or may not occur in the absence of medical testimony that they are indicated and setting out their probable cost.” Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir. 1970).

No such showing was made and the award for medical expenses should be reduced accordingly, to grant $6,126.98 for the past expenses.

Similarly, the $12,500 award for past, present and future loss of wages appears to be unsupported by the evidence. Plaintiff was unemployed at the time of the accident and has not worked since, although there was no medical evidence to show that she was unable to work. To the contrary, Dr. Phillips’ report of February 8, 1977 states that “will let her return to work and will see her back in 6 months.” She had last been employed as a substitute teacher, at a rate of $15.00 per day, but she had stopped working at the end of the school term, which was prior to the accident. She also testified that she had planned to attend Delgado College to study inhalation therapy; however, although the accident may have prevented this temporarily, there was no indication that plaintiff was unable to pursue this course of study and career at the time of trial, nor was there any evidence to show what income plaintiff might have realized from a career in inhalation therapy.

In order to recover for loss of future earnings or earning capacity, one must show with some degree of precision what he or she would have earned if it were not for the accident.

“To support an award for this type of damages plaintiff must prove his loss with reasonable certainty. Speculation, probabilities, and conjecture cannot form the basis for the award. Heard v. Sanders, 223 So.2d 212 (La.App. 2d Cir. 1969); Burrows v. Louisiana Department of Highways, 319 So.2d 867 (La.App. 3rd Cir. 1975).” Watson v. Hartford Accident & Indemnity Co., 339 So.2d 480, 482 (La.App. 2d Cir. 1976), writ refused, La., 341 So.2d 1124 (1977).

Accordingly, the jury’s award of $12,500 for loss of earnings must be set aside.

It should be noted, however, that as a result of the accident plaintiff did lose her unemployment benefits because she was no longer “ready, willing, and able” to work at the time. For this loss plaintiff should be entitled to some compensation for her actual loss until she was once more able to work. The medical evidence sets this date as February 8, 1977. Thus, this portion of the case must be remanded to determine the amount of unemployment compensation lost by plaintiff between the date of the accident and February 8, 1977.

The judgment accordingly is hereby reversed, and recast as follows: general damages reduced from $50,000 to $20,000; medical expenses reduced from $12,500 to $6,126.98; loss of unemployment compensation benefits to be determined on remand consistent with this opinion.

REVERSED IN PART AND RENDERED; REVERSED IN PART AND REMANDED.


author: BEER, Judge.

text:
    Raymond UGULANO v. ALLSTATE INSURANCE COMPANY.
    No. 9158.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.
    F. L. Morris, Metairie, for plaintiff-appellant.
    Murphy & Simon, David T. Bowman, New Orleans, for defendant-appellee.
    Before GULOTTA, BEER and GAR-SAUD, JJ.
   BEER, Judge.

Raymond Ugulano filed this suit against his uninsured motorist insurer, Allstate Insurance Company, alleging that he was injured in an accident on July 27, 1974, as a result of the joint negligence of J. Dell Jackson (uninsured) and an unidentified uninsured motorist.

Allstate filed a motion for summary judgment and exceptions of res judicata and no right of action based upon the adverse judgment rendered in “J. Dell Jackson v. Allstate Insurance Company,” by the 24th Judicial District Court. In that proceeding, Jackson directly sued Ugulano’s liability insurer, Allstate (without joining Ugulano), alleging that Ugulano’s sole negligence was the cause of the accident of July 27, 1974. After trial on the merits, judgment was rendered in favor of Jackson and against Allstate.

The same court has, in this suit, maintained Allstate’s exception of res judi-cata, holding that “the issue of negligence on the part of plaintiff, Raymond Ugulano, has been judicially determined and under said final determination, plaintiff could not recover under his uninsured motorist coverage in the instant case. . . ”

Ugulano appeals, contending that:

1) he was not a party to the first suit, and
2) The cause of action in the instant suit is based on the alleged joint negligence of Jackson and an unidentified driver, but, in the prior suit, the sole negligence of Ugulano was alleged to be the cause of the accident.

Ugulano was not a party in the Jackson suit against Allstate. However, his testimony in that proceeding is explicit:

“Q. (By Mr. Tortomasi, attorney for Jackson)
All right. Now, is it your contention that a yellow GTO was somehow involved in this accident?
A. (By Ugulano)
Yes.
Q. How was it involved?
A. He shot out from the service station. There was a cut in the lane there and I blew—
Q. Are you referring to this Amoco Service Station?
A. Yes, sir.
Q. Did you see this GTO as it left the service station and crossed the Westbound lanes of Airline Highway?
A. That’s what I was told, sir. All I seen is the yellow car there. I couldn’t say if it was a GTO or a BTO or whatever it was. All I seen it was a yellow and I blew at him and I put my brakes on to stop and that was the last I known of it. I woke up in the hospital. I thought I had hit him and I wind up—
Q. You thought you had hit the GTO?
A. That’s what I figured. I hit him.
Q. So, you didn’t see him cross the Westbound lanes?
A. He just pulled out and that was the end of it.
Q. Did you see him leave the station?
A. Yes. He shot right out. He shot right across the lanes.
Q. Now, did the GTO immediately turn East into Airline Highway or did he stop?
A. He just immediately turned right there and as I blowed at him he kept going and I just slammed my brakes and that was it.”
(Tr. 25-26.)

Approximately fifteen more pages of the transcript of the trial on the merits in Jackson v. Allstate cover Ugulano’s detailed testimony concerning the unidentified yellow GTO. It is, incidentally, in direct conflict with that of Emmett Kelly, III, a disinterested eyewitness to the accident, who, when questioned about the alleged third vehicle, responded:

“Q. (By Mr. Tortomasi):
Did you see anything at this time that would cause the Maverick to go into a spin?
A. Not really. I don’t know. It looked like the driver just lost control of the car. Of course, the highway was slick.
* * * * * *
Q. Did you see any car pull out of the opening in the neutral ground in front of the Maverick?
A. No, sir, I sure didn’t.”
(Tr. 9-10).

Thus, the issue of negligence of the driver of an unidentified third vehicle was fully explored during that trial, and, thereafter, considered by the trial judge, who, in his oral reasons for judgment, stated as follows:

“(The Court:) I’m satisfied, gentlemen, that the case presents one of liability and I find that whatever caused the accident is attributable to the fact that the defendant did lose control of his vehicle, particularly, in view of the only independent witness that I heard. His basis for the defense of the presence of another car there doesn’t impugn Mr. Ugulano’s testimony, but, the evidence is not sufficient to support that defense. It’s that simple.”

We are, however, unable to agree that the res judicata requirements of Article 2286 have been met since Ugulano was not joined as a party in the first suit. Furthermore, the first suit was a tort claim based upon Ugulano’s alleged negligence, whereas this is a contractual claim by Ugulano allegedly arising from his insurance contract with Allstate. See, Sutterfield v. Fireman's Fund American Insurance Company, 344 So.2d 1159 (La.App. 4th Cir. 1977) (where insured’s claim under his collision insurance was distinguished as a separate issue from his distinct contractual claim under the uninsured motorist coverage provisions of the same policy).

Accordingly, we turn to a consideration of the applicability of the doctrine of judicial estoppel.

In Brown v. Globe Tool & Engineering Co., 337 So.2d 894, 898 (La.App. 4th Cir. 1976), we observed:

“The thrust of the California Co. [California Co. v. Price, 234 La. 338, 99 So.2d 743 (1957)] decision, considered with earlier and later decisions on the subject, is that when the triple identities are present, C.C. art. 2286 (contained in the section on presumptions of the chapter on proof of obligations) controls, but that when the triple identities are not present, a second action may still be barred by estoppel. Since the defense of estoppel by judgment, like the defense of fraud, is an equitable doctrine which cuts across positive law, its applicability must be decided on a case by case basis by an examination and analysis of the underlying facts and circumstances. No absolute or inflexible rules should be formulated as exceptions to the strictly defined codal provision for res judicata. Rather, estoppel by judgment should be applied when the court determines the demands of equity in a particular ease dictate that an already adjudicated issue should not be relitigat-ed and that the parties should be bound by a prior determination.”

Here, Ugulano has appeared as a witness and testified fully concerning an alleged third vehicle. That issue was squarely dealt with by the trial court. Ugulano complains that judicial estoppel will deprive him of the opportunity to be represented by counsel of his own choice with respect to his claim of liability on the part of his uninsured motorist insurer. This is factually correct, but its impact is much reduced by the fact that he fully aired all of his contentions of liability in the course of his extensive testimony during the previous litigation. The detail and extent of his testimony regarding the unidentified third driver, coupled with the clear judicial rejection of same, leads us to conclude that this issue need not be further considered. Judicial estoppel is a proper remedy and the action of the court in dismissing plaintiff’s suit is fully supportable, albeit on incorrect grounds.

Accordingly, the judgment dismissing plaintiff’s suit is affirmed.

AFFIRMED.


text:
    Donald Wayne KING et al. v. LOUSTEAU AUTO SALES, INC., et al.
    No. 9164.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.

      Daniel E. Becnel, Jr., Reserve, for plaintiffs-appellants.
    McGlinchey, Stafford, Mintz & Hoffman, Dermot S. McGlinchey, C. G. Norwood, Jr., and Schafer & Schafer, Timothy G. Schafer, New Orleans, for defendants-appellees.
    Before GULOTTA, BEER and GAR-SAUD, JJ.
   BEER, Judge.

On February 29, 1976, Donald King and his two minor sons, Bryan and David, visited at the home of Gizelle Whitley, in La-Place, Louisiana. He parked his new 1976 F-250 Ford pickup/camper (which he had owned for two days) in Ms. Whitley’s driveway. In the course of their visit, the new vehicle was discussed, and, about an hour after King and the boys arrived, they all went out to see it. Ms. Whitley’s sister, Jaime Whitley, indicates the younger boy, Bryan, ran ahead and jumped into the cab of the truck. Then, as David, the older boy, reached a point behind the truck, it began rolling backward down the Whitley driveway, which is slightly inclined. Attempting to rescue David from the backsliding truck, King and Jaime Whitley were struck by it, but, worse, the rear wheel rolled over David and, as a result, he sustained severe brush-burns on his face and a broken collarbone.

As the truck started to roll backwards, Gizelle Whitley made for the cab, got in and applied the foot brake. Acknowledging that she was quite upset by the circumstances, she, nevertheless, recalls checking the transmission indicator after she brought the truck to a stop. It was — she stated — on “Park”. Jaime Whitley also testified that she looked in the cab of the truck after the accident and found the transmission indicator to be on “Park” and also observed that the parking brake was “far to the floor,” or fully engaged. However, King’s unequivocal testimony is to the effect that he had engaged the parking brake only a “normal” distance, which was described by him as being about half-way down. King was, however, sure that the transmission indicator was on “Park” and had been so from the time that he and the boys first arrived, parked, and went into the Whitley residence.

Much of the extensive record of this four day long jury trial deals with the development of evidence of King’s attempts to recreate the occurrence of the accident for the purpose of conducting tests to determine if a defect could be demonstrated in the parking brake and/or transmission. He sought, through able counsel, to prove negligence on the part of Ford in the design or manufacture of the car, and on the part of Lousteau Auto Sales, Inc. (from whom the truck was purchased), by contending that they were guilty of improper inspection and%or making improper adjustments of the brakes and the transmission system.

From an adverse jury verdict, King appeals, contending that the jury erred by apparently ignoring the testimony of the expert witness, called by plaintiff, Dr. I. Robert Erlich. Dr. Erlich, a mechanical engineer, believed that the cause of the accident was either: 1) too much play in the linkage to the transmission caused by improper adjustment or assembly so that the parking pall would not engage when the vehicle transmission lever was in a parked position, or 2) improper adjustment of the parking brake linkage cable.

The record indicates that the F-250 Ford pickup is equipped with a safety neutral switch which allows one to start the engine only when the transmission indicator is in park or neutral. King points out that he started the truck immediately after the accident (to take David to the hospital), so that, he contends, the transmission indicator must have been on “Park.” Therefore, he contends, that the truck must have rolled backward while in “Park” and, thus, clearly demonstrated the existence of a defect in the transmission indicator mechanism. The jury’s apparent rejection of this contention suggests that their conclusion may have been that King failed to put the gear shift level all the way into “Park” and/or failed to fully depress (and thus adequately engage) the parking brake.

King made several attempts to reproduce the backward rolling of the truck as it is contended to have occurred at the time of the accident. Several days after the accident, he sought to duplicate the entire incident that had taken place in the Whitley driveway. Lousteau salesman Joseph J. Tooley, Jr. and Lousteau service manager Farrell Barre also conducted tests, including the placing of the truck on a fairly steep incline with the transmission indicator in “Park.” In one of these “tests,” the truck did roll backward. Tooley and Barre testified that in that instance, King had not manipulated the transmission indicator so that it was fully in the “Park” position. Tooley testified that to engage the “Park” mechanism, the lever must be handled resolutely and that one can feel when the “Park” mechanism is engaged.

According to Barre, King was asked to return the vehicle to the shop the day following their being informed of the accident, but it was two months before King returned and asked to have the transmission and parking brake adjusted. Meanwhile, he apparently contacted counsel, who then hired Dr. Erlich to conduct various tests. When Barre tested the truck, including the placing of it on an incline, backward rolling could not be duplicated with the transmission indicator in “Park.” Barre further tested the vehicle by placing the indicator on “neutral” and at the same time he fully engaged the parking brake. Again, the vehicle would not roll. Mechanic Nolan Rous-sel found no adjustments to the transmission linkage were required.

In our view, the record provides a valid basis for the jury to have concluded that the vehicle was not defective or unsafe. Though Dr. Erlich conducted various tests of the parking brake and transmission and found one-half inch “slop” (or slackness) in the transmission linkage, his responses on cross-examination may well have been interpreted by the jury to have diminished the validity of such conclusions. Dr. Er-lich’s testimony may have been further weakened in the eyes of the jury due to his acknowledgement that he could not recall whether he asked King to engage the parking brake on the occasion of the tests.

The evidence indicated that the 1976 Ford truck manual contains, in capital letters, the warning: “DO NOT USE THE PARK POSITION AS A SUBSTITUTE FOR THE PARKING BRAKE. SET THE PARKING BRAKE EVERY TIME YOU USE THE VEHICLE.” Since King unequi-vocably testified that it was only one-half way depressed at the time of the accident, the jury may well have chosen not to accept the testimony of Dr. Erlich that some maladjustment of the vehicle was the cause of the accident. Such rejection cannot, in our view, be described as manifest error in light of the existence of sufficient evidence to support their verdict.

The judgment is affirmed.

AFFIRMED.


author: GULOTTA, Judge. GARSAUD, Judge,

text:
    Victor and Marie PERKINS v. Henry DESROCHERS and Metairie Ford, Inc.
    No. 9172.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.
    Donald V. Organ, Roger J. LaRue, Jr., New Orleans, for plaintiffs-appellants.
    Liskow & Lewis, Frederick W. Bradley, New Orleans, for defendant-appellee, Gen-tilly Dodge, Inc.
    Before GULOTTA, BEER and GAR-SAUD, JJ.
   GULOTTA, Judge.

The issue confronting us is whether or not the seller of an automobile has the legal duty to ascertain if the purchaser possesses a driver’s license or to investigate if he is a capable and competent driver. We think not. See Toole v. Morris-Webb Motor Co., 180 So. 431 (La.App.Orl.1938); Toole v. Morris-Webb Motor Co., 195 So. 863 (La.App.Orl.1940), on remand.

Plaintiffs sustained injury in an auto accident and filed suit against defendant driver, Henry Desrochers, and Gentilly Dodge, Inc., a car dealer which, approximately six days prior to the accident, had sold Desroch-ers the vehicle he was driving at the time of the collision. From a judgment dismissing their suit against Gentilly Dodge, Inc., on an exception of no'cause of action, plaintiffs appeal.

As reflected in the court’s minutes, the trial judge indicated that he did not feel it was the duty of Gentilly Dodge to inquire into the competency of the driver of the automobile. We agree.

The petition, after alleging facts constituting the negligence of Henry Desrochers, asserts that Gentilly Dodge was negligent in selling a vehicle to the defendant driver without investigating whether or not that individual possessed a driver’s license. In a supplemental and amending petition, plaintiff alleges: 1) that at the time of the sale Gentilly Dodge was informed that Desroch-ers did not possess a driver’s license; 2) that his driver’s license had been revoked several years prior to the accident because of traffic violations; 3) that he was grossly incompetent and unable to responsibly handle a vehicle; 4) that without investigating this driver’s history, Gentilly Dodge sold the automobile to him in disregard of the safety of the driving public; and 5) that the proximate cause of the accident was Gentilly Dodge’s negligence in selling a vehicle to a purchaser whom it should have known was incompetent and in failing to investigate or take any steps to determine whether the purchaser was capable of handling the vehicle.

In support of their contention on appeal that the petition states a cause of action against the automobile seller, plaintiffs rely heavily on a line of cases which place the duty on the owner of a lending or renting automobile to make a reasonable investigation to determine whether or not the borrower or renter is a competent driver.

We have no quarrel with this line of jurisprudence; however, we perceive a significant difference between the duty placed upon a rental agency or a lender of an automobile and the seller of a vehicle. Presumably, a person renting a vehicle is leasing for his own use and the car is still owned by the lessor. The lessor, therefore, has a vital interest in who will drive the rented automobile. Conversely, when a vehicle is sold, title passes at the act of sale and the seller has no further interest in the vehicle or its future drivers. An unlicensed purchaser may be buying the automobile for use by another person; or he may intend not to drive the vehicle until such time as he becomes licensed; or, conceivably, he may be purchasing for resale purposes only.

Indeed, if liability is placed on the seller, based on the allegations of the petition in the instant case, a Pandora’s box of unanswered questions would be opened. For how long a period is the seller responsible for the actions of the purchaser? Would it be until he becomes licensed? Assume that the purchaser, subsequent to the purchase, is convicted of drunk driving or undergoes a personality change. Would we then say that had the seller made a more thorough investigation at the time of the sale these tendencies would have exhibited' themselves? While the foregoing examples may be exaggerated, we think they serve the purpose of showing the untenable position of plaintiffs in seeking to assert a cause of action against the automobile dealer in the instant case.

As was stated in Toole v. Morris-Webb Motor Co., supra, at page 432;

“ * * * It is not the business of the seller of an automobile ... to inquire into the capacity of the purchaser to drive it any more than it is the obligation of the vendor of guns and ammunition to ascertain whether the purchaser is familiar with the use of the weapons. With this contention we quite agree

Although in the Toole case the court concluded the petition alleged a cause of action against the automobile seller, in that case the dealer had supplied a license plate to the purchaser, without which the buyer could not have operated the automobile, in spite of the fact that the seller was aware that the purchaser did not know how to drive. The facts in the Toole case are strikingly different from those in our case. The court in Toole recognized the impracticability of placing a duty upon an automobile seller to inquire of a purchaser whether he is a licensed driver or competent to drive. This area of inquiry is none of the seller’s business.

We are further persuaded to reach this conclusion by reference to existing statutory law. LSA-R.S. 32:417, in pertinent part, provides that it is unlawful to rent a motor vehicle to an unlicensed driver and that it is unlawful to employ an unlicensed person as a driver of a motor vehicle. Significantly, however, the statute neither prohibits the sale of a vehicle to an unlicensed person nor imposes a legal duty on the seller to investigate whether a prospective purchaser has a driver’s license. In the absence of jurisprudential or statutory authority, we cannot in the posture of this case impose such a duty. Should the legislature see fit to create restrictions on the sale of motor vehicles, then an appropriate new law or amendment of LSA-R.S. 32:417 can be enacted.

Under the circumstances, we conclude the trial judge properly maintained the exception of no cause of action. LSA-C.C.P. art. 934 provides, however, that when a peremptory exception, -such as no cause of action, has been maintained, plaintiff is entitled to the opportunity to amend if the petition can be amended to assert a cause of action. In-the instant case, according to plaintiffs, in argument, no additional facts can be asserted which were not urged in the original and supplemental petitions to allege a cause of action against the automobile dealer. Under the circumstances, a remand for the purpose of permitting an opportunity to amend would be a vain and useless act. Having so concluded, we affirm the trial court’s judgment.

AFFIRMED.

GARSAUD, Judge,

dissenting.

As plaintiffs alleged in their Second Supplemental and Amending Petition that Gen-tilly Dodge had actual knowledge that the purchaser of the car did not have a driver’s license and as there appears to be no other party to whom or for whose benefit delivery would be made, I would remand for a trial on the merits. A duty surely exists on a car dealer not to hand a set of keys knowingly to an unlicensed driver for his benefit and not for another’s. If plaintiff can prove these facts, in my opinion he is entitled to recovery.

      . See Anderson v. Driverless Cars, 11 La.App. 515, 124 So. 312 (Orl.1929); Davis v. Shaw, 142 So. 301 (La.App. 2d Cir. 1932); Bailey v. Simon, 199 So. 185 (La.App.Orl.1940). See also LSA-R.S. 32:417(B).


author: LEMMON, Judge.

text:
    Jack A. SALVATORE a/k/a Jack Scott v. COVENANT BROADCASTING CORPORATION OF LOUISIANA.
    No. 9175.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.

      Morrison & Reily, Patrick M. Reily, New Orleans, for plaintiff-appellant.
    Monroe & Lemann, Andrew P. Carter, David E. Walker and Alvin J. Bordelon, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, BOUTALL and BEER, JJ.

      Beer, J., was of the opinion that rehearing should be granted.

   LEMMON, Judge.

Is a claim for overtime wages due to a radio newscaster-announcer under a two-year written contract for personal services subject to the one-year prescriptive period of C.C. art. 3534? The trial court answered affirmatively, apparently accepting defendant’s argument plaintiff was a workman, and limited plaintiff’s claim to wages due within one year of filing of the suit. Plaintiff has appealed.

I

C.C. art. 3534 provides:

“The following actions are prescribed by one year:
* * * * * *
“That of workmen, laborers and servants, for the payment of their wages. * *”

However, C.C. art. 3538 provides:

“The following actions are prescribed by three years:
* * * * * *
“That for the salaries of overseers, clerks, secretaries, and of teachers of the sciences who give lessons by the year or quarter. * * *”

The various civil codes were written during the time of plantation-oriented economy. The article in the Civil Code of 1808 corresponding to C.C. art. 3534 referred to claims of “workmen and day laborers for the payment of their days works and of the materials by them furnished; and for that of the domestics which let their services by the year”. Significantly, the redactors of the Civil Code of 1825 saw fit to provide a longer prescriptive period for the salary claims of persons who held positions of greater responsibility or who worked under longer contracts.

In 5 Civil Law Translations, Baudry-Lacantinerie & Tissier, Prescription ¶ 716, 723 (La.St.L.Inst.Trans.1972) it was noted as to the Code Napoleon’s prescriptive provision for a worker’s wages:

“(T)he prescription by six months covers workers and employees with regard to the payment of their wages, furnishing and salaries. The term ‘ouvriers et gens de travail’ obviously includes those who offer their services by the day, by a determined task, by the piece, without regard to whether they have the title of foremen, chiefs of shop, or similar.
“The terms of Art. 2271 also include craftsmen ; ordinarily they do small jobs; for this reason they are subject to our short prescription.
“But it is not possible to consider store attendants as workmen. One can say more generally that all workers or employees paid by the month fall within the scope of Art. 2277, not of Art. 2271. Consequently, they are prescribed against by five years.” (Footnotes omitted here and elsewhere) (¶ 716)

and for a servant’s wages:

“Art. 2272 envisages servants. This term includes all those persons who are, for salary, attached to the person of their master and to the service of his house. Such are: cooks, doorkeepers, valets, chauffeurs [orig.: coachmen]. Not in-eluded in this category are: clerks, house stewards, tutors, librarians, secretaries. They are all subject to the five-year prescription, if paid by the year or by shorter periods (Art. 2277); if their salary is in the form of a lump sum, the prescription is by thirty years.
“Art. 2272 envisages only domestic help hired by the year. It seems to us that it should be extended to those hired by the month, but not by a shorter period.” (¶ 723)

These comments suggest the underlying scheme was apparently to provide shorter prescriptive periods for employment contracts of relatively short duration. And another comment notes a different category for “servants hired by the year”, differentiating “service personnel which belongs among the free professions, such as tutors, secretaries, salesmen and clerks”, who had a longer prescriptive period. 5 Civil Law Translations, Aubry & Rau, Droit Civil Francais § 774 [38] La.St.L.Inst.Trans.1972). But as to workers the same comment noted (§ 774 [43]) that the same prescriptive period applied to all workers and salaried employees, including those in free professions and even those who are paid by the month, the week or the hour, the type of work being irrelevant.

II

In more recent times this court in Tillman v. New Orleans Saints Football Club, 265 So.2d 284 (La.App. 4th Cir. 1972) held that C.C. art. 3534 did not apply to a claim for wages under a one-year written contract for personal services by a professional football player. And in Scallan v. Mark Petroleum Co., 303 So.2d 498 (La.App. 2nd Cir. 1974), cert. den. 307 So.2d 370 on basis of “no’ error of law”, the court held the one-year prescriptive article inapplicable to the wage claim of an oil company’s salesman under a written employment contract providing for a monthly salary plus bonuses.

Other decisions have followed various paths of unsure footing, some refusing to apply the short prescriptive period based on reasoning or analogy and some applying it without comment, apparently assuming that C.C. art. 3534 applies to all claims for wages. These cases simply do not provide any concensus which would control the decision or rationale of this case.

III

The prescriptive period for wage and salary claims obviously need legislative updating and clarification. Arguably the period should be short (in consideration of the availability of tough methods of enforcing payment of wages), and perhaps different periods could be established based on reasonable categories which meet equal protection requirements. However, these considerations are not presently before us.

We base our decision in the present case on the fact that plaintiff’s claim does not fall squarely within a special category listed in C.C. art. 3534. The general prescriptive article governing contracts is C.C. art. 3544, which provides a ten-year period. C.C. art. 3534, while providing an exception to the general rule governing contracts, does not purport to provide a general rule governing claims for wages. Other special rules provide other prescriptive periods for other particular kinds of wage earners. These special exceptions should be strictly construed, and when such an exception is not expressly and clearly applicable to a particular claim, the exception should yield to the general rule.

In this case we hold the radio newsman working under a written two-year contract to provide “his artistic and technical talents” was not a workman or servant as contemplated by C.C. art. 3534, and the general prescriptive rule applicable to contracts applies to his claim for wages.

Accordingly, the judgment of the trial court maintaining the exception of prescription is reversed and the exception is overruled. The judgment is further amended to increase the amount of the award to $4,046.25. Costs of this appeal are assessed against defendant.

REVERSED IN PART, AMENDED AND AFFIRMED IN PART.

      . Defendant contended in the trial court that no overtime at all was due under the contract and appealed from the judgment which awarded such wages due within a year of the suit. In this court defendant abandoned its appeal and limited the issue in plaintiffs appeal to that of prescription.

      . In the Code Napoleon the prescriptive period for workmen and day laborers was six months and for “domestic servants, who hire out for the year” was one year.


author: DeSONIER, Judge.

text:
    Donely Glasscock MILLER et al. v. Leon Nick LaFRANCE. Mrs. Patricia GLASSCO v. Leon Nick LaFRANCE.
    Nos. 9289, 9290.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearings Denied June 14, 1978.
    James H. Minge, Minge & Batiza, New Orleans, for plaintiffs-appellees.
    A. S. Cain, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   DeSONIER, Judge.

Herein defendant-appellant appeals from the trial court’s judgment which, inter alia, annulled mortis causa donations of immovable property made by decedent/testatrix to appellant.

After a judgment of possession was rendered by the trial court recognizing appellant as the universal legatee of the decedent’s estate, plaintiff-appellee (widow of decedent’s brother) and plaintiffs-appellees (grandchild and children of decedent’s deceased brother) sued to have all of the decedent’s donations mortis causa and donations inter vivos (exceeding one-tenth of the value of decedent’s estate) to appellant declared null.

The record shows that decedent did not have a spouse or descendents at her death. Decedent wrote a last will and testament in olographic form leaving all of her estate to appellant.

The appellant stated in his answers to interrogatories propounded to him by appel-lee (decedent’s sister-in-law) that he has resided with decedent from 1954 until decedent’s death in 1974. Appellant testified at trial that he had represented decedent as his wife:

(1) at three different hospitals;
(2) to his neighbors, the Nelsons; and
(3) on his application to become a registered voter.

Decedent’s niece (appellee, Macil) testified:

(1) that “she never gave it a thought” whether decedent and appellant were married; and
(2) decedent referred to appellant as “Uncle Nicky.”

Appellee (decedent’s sister-in-law) testified that decedent referred to appellant as appellee’s “brother-in-law.”

A sheriff testified that decedent’s last name on her driver’s license was the same as appellant’s.

A neighbor of appellant and decedent testified that appellant referred to the decedent as Mrs., himself, and when he addressed her as such, she did not correct him. The neighbor testified that he imagined the neighborhood assumed decedent and defendant were married. Another neighbor testified that he assumed decedent was appellant’s wife.

Counsel for appellees introduced numerous exhibits which indicate decedent often used appellant’s last name as if it were her own. However, one exhibit shows that decedent listed herself as “single” on her income tax returns.

The issue on appeal is whether the trial court’s finding that appellant and decedent living in open concubinage was error. Louisiana Civil Code Article 1481 provides:

“Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immova-bles; and if they make a donation of movables, it can not exceed one-tenth part of the whole value of their estate.
Those who afterwards marry are excepted from this rule.” LSA-C.C. Art. 1481.

Appellant contends on appeal that he did not live in open concubinage with decedent. We agree.

The appellees introduced no evidence that the public was aware that decedent and appellant were living in concubinage. Appellant and decedent cloaked their illicit relationship under the guise of marriage. See Succession of Lannes, 187 La. 17, 174 So. 94 (1936); Succession of Battiste, La.App., 145 So.2d 668. For this reason, LSA-C.C. Art. 1481 is inapposite under the facts of this case.

Accordingly, we reverse the trial court’s judgment, and hold that the decedent’s donations mortis causa and inter vivos to appellant are not void.

Appellees are cast for the costs of appeal.

REVERSED.


author: CUTRER, Judge.

text:
    Boyce J. TRAHAN et al., Plaintiffs-Appellants, v. Roger P. LARIVEE et al., Defendants-Appellees.
    No. 6672.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 1978.
    Rehearing Denied June 15, 1978.

      See also, 359 So.2d 331.
    Michael Harson, Lafayette, for plaintiffs-appellants.
    Ronald J. Judice, Lafayette, for defendants-appellees.
    Before CULPEPPER, FORET and CUTRER, Judges.
   CUTRER, Judge.

Plaintiffs, Boyce J. Trahan and Radio Station KVOL instituted this action seeking a determination of whether certain documents held by the City of Lafayette were public records subject to inspection. Made defendants were Robert P. Larivee, Chief Administrative Officer for the City of Lafayette, and Kenneth F. Bowen, Mayor of Lafayette. A separate action was filed by the City of Lafayette against Trahan and Radio Station KVOL seeking a declaratory judgment on the matter. Both actions were consolidated for trial. From a trial court judgment in favor of the city and its officials decreeing that the documents were not subject to public inspection, Trahan and Radio Station KVOL appeal. Pursuant to the requirements of LSA-R.S. 44:35, this appeal was given preference status.

The issue before the court is whether performance evaluation reports of the directors of various departments of the City of Lafayette are public records subject to examination under Louisiana’s Public Records Law (LSA-R.S. 44:1, et seq.).

The facts of this case are not in dispute. The City of Lafayette has implemented a policy of employee performance ratings. Since April 1, 1975, substantially all city employees below the director level in the various city departments have been rated from time to time. In the latter half of 1977, a similar performance rating was prepared on all city directors, including the Director of Administration, Director of Public Works, Director of Utilities, Fire Chief, Police Chief, Director of Community Affairs, and Director of Community Development. This evaluation was conducted pursuant to the direction of the mayor with the chief administrative officer serving as the rater. On January 6,1978, Trahan, who is vice president and general manager of KVOL, gave Larivee, who is custodian of the records, written notice of Trahan’s and KVOL’s intent to request access to the evaluation reports on the department directors. Larivee refused to deliver the reports to Trahan on January 10, 1978, but advised Trahan that access would be granted provided that Trahan secured written consent from each individual director. All but one of the city directors refused to give Trahan consent to review the reports. Larivee refused to turn over the documents a second time. From this latter refusal, litigation ensued.

One of the questions raised in this appeal is whether the evaluation reports fall within the intended coverage of the public records act. Specifically, the City of Lafayette urges that Art. 1, § 5 of the Louisiana Constitution of 1974 contains a built-in exemption to the public records laws and that disclosure of the documents in question would seriously infringe on the privacy of the city employees.

We note that none of the city directors were made parties to this consolidated action even though it is argued that disclosure of these reports would invade the privacy of these city employees. LSA-C.C.P. Art. 641 contains the following definition of indispensable parties:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein.”

Since the rights of the various city directors are so interrelated and would be affected as a result of this litigation, we feel that these persons are indispensable parties to the proceedings.

LSA-C.C.P. art. 927 states that the non-joinder of an indispensable party may be noticed by either the trial or appellate court on its own motion. It is proper, under such circumstances, to remand the case to permit the joining of the indispensable parties. See Horn v. Skelly Oil Co., 221 La. 626, 60 So.2d 65 (La.1952) and the cases cited therein; State of Louisiana ex rel. Pertuit v. Pioneer Petroleum Corporation, 193 So.2d 286 (La.App. 4th Cir. 1966) writ refused 250 La. 271, 195 So.2d 148 (1967).

For the reasons assigned, the judgment appealed from is reversed and set aside. This case is remanded to the district court for the joinder of all the various city department heads as indispensable parties to this suit, said parties to be joined within 15 days after this judgment becomes final, or in default thereof, these proceedings will be dismissed. After the case is remanded, and in the event all these city directors are joined as parties, proceedings may continue in the district court in accordance with law and the views expressed herein, it being specifically directed that each party shall have the right to file pleadings and to introduce new admissible evidence on the issues. All costs incurred in the district court to date, as well as the costs incurred after this case is remanded, shall be determined and assessed by the district judge in his discretion. All costs of this appeal are assessed equally between appellants and appellees.

JUDGMENT REVERSED AND CASE REMANDED.

      . Art. 1, § 5 of the 1974 Constitution provides:
      “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”


text:
    CITY OF LAFAYETTE et al., Plaintiffs-Appellees, v. Jim TRAHAN and Radio Station KVOL, Inc., Defendants-Appellants.
    No. 6673.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 1978.
    Rehearing Denied June 15, 1978.
    Michael Harson, Lafayette, for plaintiffs-appellants.

      Ronald J. Judice, Lafayette, for defendants-appellees.
    Before CULPEPPER, FORET and CUTRER, Judges.
   CUTRER, Judge.

This is a companion case consolidated for trial with Boyce J. Trahan, et al v. Roger P. Larivee, et al, our Docket No. 6672, 359 So.2d 329. Separate decisions in these cases are being rendered by us this date.

For the reasons assigned in Boyce J. Trahan, et al v. Roger P. Larivee, et al, our Docket No. 6672, the judgment appealed from is reversed and set aside. This case is remanded to the district court for the join-der of all the various city department heads as indispensable parties to this suit, said parties to be joined within 15 days after this judgment becomes final, or in default thereof, these proceedings may continue in the district court in accordance with law and the views expressed herein, it being specifically directed that each party shall have the right to file pleadings and to introduce new admissible evidence on the issues. All costs incurred in the district court to date, as well as the costs incurred after this case is remanded, shall be determined and assessed by the district judge in his discretion. All costs of this appeal are assessed equally between appellants and appellees.

JUDGMENT REVERSED AND CASE REMANDED.


text:
    Janie M. Perkins BUSBY v. John Howard BUSBY.
    No. 50363.
    Supreme Court of Mississippi.
    May 31, 1978.
    Meek & Meek, W. Buchanan Meek, Jr., Eupora, for appellant.
    Thomas A. Coleman, Ackerman, for ap-pellee.
   Appeal from Chancery Court, Choctaw County; John C. Love, Jr., Chancellor.

Before SMITH, P. J., WALKER and COFER, JJ., and GEORGE F. ADAMS, Commissioner.

AFFIRMED.


text:
    GEORGIA-PACIFIC CORPORATION v. Bobby Joe GREGORY.
    No. 50331.
    Supreme Court of Mississippi.
    May 31, 1978.
    Fair & Mayo, James C. Mayo, Louisville, for appellant.
    Crawley & Ford, Michael H. Steele, Kosciusko, for appellee.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

Before ROBERTSON, P. J., LEE and BOWLING, JJ., and J. C. FEDUCCIA, Commissioner.

AFFIRMED.


text:
    Robert RIGBY v. STATE of Mississippi.
    No. 50500.
    Supreme Court of Mississippi.
    May 31, 1978.
    Alton Massey, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


text:
    Alfred HARTWELL v. STATE of Mississippi.
    No. 50502.
    Supreme Court of Mississippi.
    May 31, 1978.
    Clyde W. Mullins, Natchez, for appellant.
    A. F. Summer, Atty. Gen., by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from County Court, Adams County; Robert A. Bonds, Judge.

Before SMITH, P. J., and SUGG and BROOM, JJ.

AFFIRMED.


author: BOWLING, Justice,

text:
    Terry Lewis BARR v. STATE of Mississippi.
    No. 50359.
    Supreme Court of Mississippi.
    May 31, 1978.
    Buchanan, Haltom & Saucier, Ben L. Saucier, Indianola, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted for the crime of murder in the Circuit Court of Sunflower County, Mississippi. He received a sentence of life under the control of the Department of Corrections.

Five assignments of error are alleged by the appellant:

1. The trial court’s refusal to submit the question of present insanity of appellant preliminarily to a jury was an abusal of discretion and consequently caused a flagrant injustice to appellant;
2. The trial court erred in allowing evidence introduced on behalf of the State pertaining to the opinions of the medical experts which were partially based on tests and opinions performed by unknown persons, thus depriving appellant of his constitutional right to confront and cross-examine that witness against him;
3. The trial court erred in refusing to give instruction D-l requested by appellant;
4. The trial court erred in refusing to give instruction D-2 requested by appellant;
5. Appellant was entitled to have his motion for a new trial sustained in that the verdict of the jury was contrary to the overwhelming weight of the competent and credible evidence adduced in this cause.

This Court is compelled to reverse the cause under the first assignment of error. There is no need, therefore, to discuss the facts of this tragic occurrence.

As set out above, the first propounded assignment of error contends that the lower court should have impanelled a jury to consider preliminarily the present insanity, if any, of appellant (at the time of trial). The cases previously decided by this Court are clear on this assignment of error. Therefore, we shall discuss the cause as presented to the lower court in connection with the applicable law set out long before this cause accrued.

The incidents leading to appellant’s indictment for murder occurred during the early morning hours of September 7, 1976. Appellant was arrested and incarcerated in the Sunflower County jail on the same date. On September 8, 1976, appellant, through his attorneys, filed a motion stating that they, as his attorneys, believed that a complete psychiatric examination was necessary in their representation of him, and requested an order of the court transferring appellant to a detention center in Hinds County for psychiatric and other related tests. No specific request was made in the motion as to the experts to perform these examinations. The motion was not contested by the State. On the same date the lower court issued its order directing that appellant be transferred at the earliest possible date to the custody of the sheriff or other proper person in Hinds County where he would be incarcerated and examined by “Dr. R. M. Ritter and/or consulting psychiatrists or physicians”; that the examinations were to be conducted either in the detention center or in a hospital. Pursuant to this order, appellant was transported to Jackson where he stayed approximately two weeks while being examined by Dr. Ritter and a psychologist, Dr. Billy Fox.

Upon appellant being returned to Sunflower County, the State, through the district attorney, filed a motion requesting an order of the court for an examination of appellant at the Mississippi State Hospital at Whitfield. This motion was not contested by appellant’s attorneys and an order was entered on September 27, 1976, directing that appellant be transported to the Mississippi State Hospital at Whitfield for an examination by the psychiatric staff at that institution. Appellant was confined at the hospital in the maximum security unit for several weeks, during which time he was examined by staff physicians, principally Dr. Donald C. Guild. At the conclusion of the examinations, four members of the staff interviewed appellant and each staff member gave his opinion as to appellant’s mental condition. This was released to the circuit judge by letter dated December 15, 1976.

The case was set for trial on February 16, 1977. On February 11, 1977, appellant’s attorneys filed an instrument styled “Suggestion of Present Insanity,” alleging that appellant was then incompetent and incapable of conducting a rational defense and incapable of entering a plea. The motion referred to the examination of Dr. R. M. Ritter as previously ordered by the court and to lay testimony that would be offered on the question. This motion was renewed on February 15, 1977, and a request was made for the court to impanel a special jury solely for the purpose of receiving testimony and evidence and deciding the question of the present mental ability of the defendant to make a rational defense.

At the time both motions were filed, appellant’s file included two instruments: An affidavit of February 13, 1977, from Dr. Robert M. Ritter, and the letter of December 15, 1976, from Dr. Donald C. Guild, Director of Forensic Psychiatry at Mississippi State Hospital. Both of these instruments were directed to the court as a result of orders by the court for each of those persons specifically to examine appellant. Dr. Ritter’s affidavit was as follows:

AFFIDAVIT
I, DR. ROBERT M. RITTER, M. D., have evaluated the mental condition of TERRY LEWIS BARR and find him to be presently insane in so much as he is presently unable to distinguish the difference between right and wrong.
WITNESS this is my signature, this the 13th day of February. A. D., 1977
/s/ Robert M. Ritter. M. D.
DR. ROBERT M. RITTER, M. D. Sworn to and subscribed before me, this the 13th day of February, A. D., 1977
/s/ John T. Haltom NOTARY PUBLIC
My commission expires:
May 25, 1978
The letter from Dr. Guild was as follows:
Honorable Judge Arthur B. Clark, Jr.
Court House
Indianola, Mississippi
Re: Terry L. Barr
Dear Judge Clark:
Mr. Terry Barr is a twenty-eight year old white male who was admitted to the maximum security unit of the Mississippi State Hospital on 9/28/76 for psychiatric observation and evaluation.
Mr. Barr has undergone extensive psychiatric observation and evaluation as well as psychological testing and has been presented to the full staff.
It was the unanimous decision of the forensic staff that Mr. Barr was both competent and responsible but there was considerable disagreement among the staff as to the exact diagnostic label that should be placed on Mr. Barr. Four members of the staff felt that Mr. Barr represented a Paranoid Personality and was non-psychotic. Another member of the staff felt that Mr. Barr represented Schizophrenia, Latent Type, and was currently non-psychotic but a borderline state. Another member of the staff, who has been at the hospital some time and is quite a knowledgable psychiatrist, agreed with Dr. Ritter that Mr. Barr represented a Paranoid state.
This is obviously a case where competent psychiatrists could have legitimate disagreements. We did, however, unanimously agree from what we are told, that he is both competent and responsible although there are significant emotional, psychological, psychiatric considerations which should be taken into account.
We did have opportunity to interview Mr. Barr’s wife and his brother and this was considerably helpful. The attorneys in Mr. Barr’s case were initially quite co-operative and helpful to us but towards the end apparently decided that it would not be wise to release Dr. Ritter’s report and did not make available to us Mr. Barr’s very close friend who might have been a deciding factor. The attorneys for Mr. Barr did state that his friend could be available on the weekend but we felt that if his attorneys considered it that critical they could have made Mr. Barr’s friend available to us during the regular working week since the other Barrs had been interviewed on a weekend which is not usual State Hospital policy.
We hope that we have in no way offended the attorneys for Mr. Barr and that they do not feel that we are in anyway prejudiced or acting in anybody’s behalf. I look forward to and hope to work well with both prosecution and defense since I consider our role at the State Hospital to act as a friend of the court.
If I can be of any further assistance to you, please do not hesitate to contact me.
Sincerely,
/s/ Donald C. Guild, M. D.
Director of Forensic Psychiatry
cc - Honorable George A. Everett,
District Attorney, 4th District
Sheriff C. 0. “Jack” Sessums
Mr. Sam J. Ely, Jr.,
Circuit Clerk
Honorable Ben L. Saucier,
Attorney at Law

On February 15, 1977, the lower court entered its order as follows:

This cause coming on this day to be heard upon the Motion of the Defendant, by and through his attorneys requesting the Court to impanel a jury solely for the purpose of receiving testimony and evidence as to his ability to make a rational defense and whether or not he is competent to stand trial, and the Court upon hearing the same, is of the opinion that said Motion is not well taken and should be denied.
THEREFORE, IT IS, HEREBY ORDERED AND. ADJUDGED that said motion for special jury is hereby denied. ORDERED AND ADJUDGED, this the 15th day of February, A. D. 1977.
/s/ Arthur B. Clark Circuit Judge

The next procedure we find in the record is dated February 16, 1977. It is a transcript of testimony received by various individuals and the examining physicians on the question of appellant’s mental condition. At-the beginning of this transcript there is written “Without a Jury.” There is no order setting the cause for a preliminary hearing before the court without a jury on the present insanity issue. This is immaterial as it is clear that the court, realizing that a question existed as to appellant’s mental condition, decided to hear this question without a jury before the trial under the indictment.

In previous cases this Court clearly has set out the conditions under which a person charged with a crime is entitled to a preliminary jury decision of his present mental capacity. In the case of Shipp v. State, 215 Miss. 541, 61 So.2d 329 (1952), the Court said:

“It is a rule of universal application, and founded on the broad principles of humanity, that no insane person shall be tried, sentenced to any punishment, or punished for any crime or offense, while he continues in that state.”
If the showing before the trial judge is sufficient to engender a reasonable probability that the defendant is then insane, that issue must be preliminarily submitted to a jury. “ ‘But if there be any doubt whether the party be compos or not this shall be tried by a jury.’ Wendell’s Blackstone’s Commentaries, vol. 4, p. 25.” First Hawie case, supra.
In Williams v. State, 205 Miss. 515, 39 So.2d 3, it was said: “The trial of a defendant, when his mind is so clouded that he cannot remember and intelligently relate what occurred at the time of the commission of the alleged offense, is a denial of due process and contrary to public policy, and when it appears to the trial court that there is a probability that defendant is incapable of making a rational defense, the trial should not proceed until defendant’s mental condition has been investigated and it appears he is sufficiently rational to make defense. Carter v. State, 198 Miss. 523, 21 So.2d 404; Hawie v. State, 121 Miss. 197, 83 So. 158, 10 A.L.R. 205. We urge upon the trial courts to observe this constitutional right of defendants, with meticulous care, and submit to the jury, preliminarily, the issue of the defendant’s sanity in all cases where there is a probability that defendant is incapable of making a rational defense.”

In the case of Pace v. State, 218 Miss. 614, 67 So.2d 521 (1953), we reiterated the pronouncement in Shipp and said:

Whenever a sufficient showing is made before the trial judge by affidavits, certificate or otherwise to disclose a reasonable probability that a defendant is mentally incapable of conducting a rational defense, a jury should be impaneled to try this issue preliminarily to a trial on the merits, since he is entitled to have a jury pass upon this important issue not unduly influenced by the prejudical testimony that may be developed upon a trial of the issue of his guilt or innocence of the crime charged. No insane person should be tried or punished for any crime while he continues insane, without regard to how strong the case for the prosecution may be against him.

In the recent case of Williamson v. State, 330 So.2d 272 (Miss.1976), the Court made the following comment:

Ordinarily, where there is a serious question of an accused’s sanity or competency to stand trial, that issue should be submitted to a separate jury prior to a trial on the merits of the ciiarges against the accused.

Now let us look at the undisputed situation at the time the lower court entered its above set out order of February 15 denying appellant’s motion for a special jury. The court had before it the sworn affidavit of the admittedly competent psychiatrist whom the court had ordered to examine appellant, an examination that took approximately two weeks. The State admitted that Dr. Ritter was a competent man in his field and qualified to give opinions based on his examinations. He stated under oath on February 13, 1977, three days before the trial date, that the appellant was “presently insane in so much as he is presently unable to distinguish between right and wrong.”

The letter from Dr. Donald C. Guild, hereinbefore set out in its entirety, advised that the four members of the staff who were involved in the examinations of appellant had three different opinions as to the proper diagnosis. One doctor, according to Dr. Guild, “agreed with Dr. Ritter that Barr represented a paranoid state.” The other three staff members, as stated above, had two different opinions; all were of the opinion that appellant represented a paranoid personality and was non-psychotic. Another member was of the opinion that appellant represented schizophrenia, latent type.

At this point, it was incumbent on the lower court under the above quoted Court opinions to determine whether or not there was a reasonable probability that the mental condition of appellant was such that he was incapable of being tried at that time. If this was the situation, it was imperative that a special jury be impanelled to decide this question preliminarily to the trial without being exposed to the facts of incidents leading to the indictment. At this point, as shown, above, the lower court had the sworn affidavit of the court’s appointed specialist stating positively that appellant was insane. It had a report from the Mississippi State Hospital physicians that was very indefinite and conflicting among themselves with at least one agreeing with Dr. Ritter. Therefore, we are forced to the conclusion that at this point there necessarily was a reasonable probability that appellant was of such mental condition that the law could not force him to trial without a preliminary hearing by a special jury on this question.

To further emphasize the above opinion of the court, we take notice that although on February 15 the lower court denied the special jury, nevertheless, he was of such doubt that on the following day he conducted a hearing on the question without a jury.

It is inescapable that under the record in this case the lower court should have im-panelled a special jury to hear evidence and receive testimony on the appellant’s mental condition at that time, and the failure to do so is reversible error.

The only other assignment of error we think should be discussed at this time is Instruction D-2 submitted by and refused appellant, which reads as follows:

The Court instructs the jury that if, after considering all the evidence in this case, there remains in your mind a reasonable doubt as to whether or not the Defendant, at the time he committed the alleged act, was suffering from any mental disease, from any cause, which prevented him at such time of committing the alleged act, from knowing the difference between right and wrong with reference to said alleged act, then you cannot, under your oaths, find the Defendant guilty of murder.

This identical instruction was requested and refused by the lower court in Myrick v. State, 290 So.2d 259 (Miss.1974). We held there that the instruction was proper and should have been granted. We further held, however, that the other instructions given the State and the defendant sufficiently and adequately guided the jury on the question raised by the instruction.

As announced by this Court many times, all instructions should be read together, and if the jury is fully and fairly instructed by other instructions, the refusal of a similar instruction is not reversible error. We have examined all the instructions in the record and do not find that the principle requested in defendant’s Instruction D-2 was sufficiently submitted to the jury without the granting of the refused instruction. If and when the cause should reach the point of submitting instructions to another jury and the granting of instructions is in the same state as the present record, we hold that defendants refused Instruction D-2 should be granted.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur.