author: MARCUS, Justice.

text:
    STATE of Louisiana v. Paul Charles WEATHERS a/k/a Sammy R. Allen.
    No. 56350.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      William M. Bass, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Defendant Paul Charles Weathers, was charged by bill of information with the crime of armed robbery in violation of La.R.S. 14:64. He was tried by jury, found guilty as charged, and was sentenced to serve 25 years at hard labor. On appeal, he relies upon six assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3

Defendant alleges that the trial judge erred when he refused to sustain defense counsel’s challenges for cause of two prospective jurors. Defendant exercised peremptory challenges against both of these jurors and exhausted his peremptory challenges before the completion of the panel. La.Code Crim.P. art. 800 (1966).

The first prospective juror stated that he was a member of the Terrebonne Parish School Board, which was represented by the Terrebonne Parish District Attorney’s Office. In connection with school board work, he had become acquainted with the district attorney and a member of his staff. The second prospective juror stated that he was acquainted with the district attorney and that he was a “close, personal friend” of an assistant district attorney who had no role in the prosecution of this case. Both prospective jurors, questioned by the judge as to their impartiality, responded that their acquaintance with the district attorney and members of his staff would not prevent them from reaching a just and fair verdict.

Article 797 of the Louisiana Code of Criminal Procedure provides in relevant part:

The state or the defendant may challenge a juror for cause on the ground that:
(3) The relationship, whether by blood, marriage, employment, friendship, or emnity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict; . . . .

This court has- repeatedly held that it is within the sound discretion of the trial judge to determine the competency of a juror, and only when the exercise of such discretion is arbitrary or unreasonable, to the prejudicial injury of the defendant in obtaining a fair and impartial trial, will this court be warranted in setting aside a verdict. State v. Frazier, 283 So.2d 261 (La.1973); State v. Willis, 262 La. 636, 264 So.2d 590 (1972); State v. Flucas, 262 La. 625, 264 So.2d 586 (1972). In Flu-cas, one prospective juror was challenged because of his friendship toward the prosecuting attorney, and the second prospective juror was challenged because of his friendship with one of the testifying police authorities, and because the prosecuting attorney had done some legal work for him about one month prior to the trial. Both prospective jurors indicated that their friendship and economic relations with persons involved in the case on behalf of the state would not alter their ability to be impartial. We held that it was reasonable for the trial judge to conclude that these contacts would not influence the jurors in arriving at their verdict.

Similarly, we find no abuse of discretion on the part of the trial judge. The first three assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 4

Defendant alleges that the trial judge committed error when he permitted the state to question the victim of the robbery regarding money allegedly stolen in the robbery (S-6). On being shown the money by the state, the victim testified that the bills were of approximately the same denomination that had been taken from her on the morning of the robbery. Defendant contends that the state, by questioning the victim without having first laid a foundation for the introduction of the money into evidence, violated article 773 of the Louisiana Code of Criminal Procedure, which provides:

Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible.

In State v. Isaac, 261 La. 487, 499, 260 So.2d 302, 306 (1972), we stated :

Before the admission of an object in evidence, a foundation must be laid showing that it is related to the case. The foundation testimony may consist of visual identification of the object by witnesses or by establishing a continuous chain of custody from the seizure of the object to its introduction in evidence at the trial.

The testimony of the robbery victim concerning the money taken from her was part of the state’s attempt to lay a foundation for the introduction of the money into evidence. The state subsequently completed the laying of this foundation when it called the arresting officer and the chief detective of the Houma Police Department, who both identified the money and established a continuous chain of custody. The evidence was later admitted in evidence with no objection from defense counsel.

At the time that the victim testified regarding the stolen money, the state made no effort to offer it in evidence. Hence, the. question regarding the money was merely preliminary. The trial judge properly overruled defense counsel’s objection because the court cannot control the state’s order of proof. La.Code Crim.P. art. 773 (1966); State v. Mitchell, 311 So.2d 888 (La.1975); State v. Sinclair, 258 La. 84, 245 So.2d 365 (1971). We find no merit in Assignment of Error No. 4.

ASSIGNMENT OF ERROR NO. 5

Defendant contends that the trial judge permitted the state to harass defendant’s alibi witness on cross-examination. The witness, who testified that defendant had been involved in a poker game with him at the time the robbery occurred, recalled his shock when he read in the paper two days later that defendant had been arrested. The state, to test the witness’ memory, questioned him as to his ability to remember the headlines in the newspaper on the day before his testimony.

La.R.S. 15:280 provides :

When a witness has been intentionally sworn and has testified to any single fact in his examination in chief, he may be cross-examined upon the whole case.

In Louisiana, therefore, the scope of cross-examination is not limited to matters covered in direct examination. State v. Williams, 250 La. 64, 193 So.2d 787 (1967). In addition, each side has the right to impeach the testimony and credibility of every witness sworn on behalf of the other side. La.R.S. 15:486; State v. Richardson, 258 La. 62, 245 So.2d 357 (1971). Although care should be exercised not to exceed the proper bounds of the cross-examination by impeaching a witness as to collateral facts or irrelevant matter, La.R.S. 15:494, mere doubts as to the propriety of the extent of the cross-examination are always resolved in favor of the cross-examination. State v. Bertrand, 167 La. 373, 119 So. 261 (1929).

The testimony of defendant’s alibi witness as to defendant’s whereabouts on the night of the robbery nine months earlier was of crucial importance. The trial judge did not abuse his discretion in permitting the state to examine the witness at great length in order to measure his facility of recall. “On cross-examination, a latitude is allowed to test the memory of the witness.” State v. Richardson, 258 La. 62, 245 So.2d 357 (1971). Assignment of Error No. 5 has no merit.

ASSIGNMENT OF ERROR NO. 6

In his final assignment of error, defendant avers that the trial judge erred in restricting the closing argument of defense counsel. The alleged error occurred when the trial judge sustained the state’s objection to defense counsel’s discussion of a criminal identification problem he had encountered as defense attorney in a previous case:

DEFENSE COUNSEL: If you get at least a lineup where there are at least several people that look somewhat alike, and let me tell you, you can dress them alike. I had a case once where a guy wore a welder’s cap, they had a police lineup ....
STATE: I will object, your Honor, to any testimony that may have been happening in another case, another situation.

Broadly speaking, counsel must confine themselves in argument to the facts introduced in evidence, to matters of general or common knowledge, and to the fair and reasonable conclusions to be drawn therefrom. La.Code Crim.P. art. 774 (1966); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971). The trial judge is accorded wide discretion in confining the closing argument to the scope of the evidence. State v. Dorsey, 262 La. 785, 264 So.2d 644 (1972). Defense counsel’s reference to his personal experiences in a different case was unrelated to the facts introduced in evidence and was not a matter of common knowledge. Hence, it was not within the proper scope of the closing argument. We find no abuse of discretion in the trial court’s ruling.

DECREE

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


source: Caselaw Access Project

license: Public Domain

text:
    John D. KOPFLER v. Edwin EDWARDS, Governor, et al.
    No. 56813.
    Supreme Court of Louisiana.
    Sept. 4, 1975.
   In re: Wade O. Martin, Secretary of State through William J. Guste, Jr., Attorney General, State of Louisiana applying for writ of certiorari or Review. 318 So.2d 653.

Writ denied. See writ application No. 56,801, La., 320 So.2d 900.


text:
    John D. KOPFLER v. Edwin EDWARDS et al.
    No. 56802.
    Supreme Court of Louisiana.
    Sept. 4, 1975.
   In re: Charles A. Branch, Chairman, Tangipahoa Parish Democratic Executive Committee applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 318 So.2d 653.

Writ denied. See application in No. 56,801, La., 320 So.2d 900.


text:
    John D. KOPFLER v. Edwin EDWARDS et al.
    No. 56801.
    Supreme Court of Louisiana.
    Sept. 4, 1975.
   In re: Judge Edward B. Dufreche and Estelle S. Stire applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 318 So.2d 653.

Writ denied. The result is correct and an election should be called in accordance with law.


author: CALOGERO, J.,

text:
    Walter C. DUMAS v. DEMOCRATIC STATE CENTRAL COMMITTEE OF LOUISIANA and Wade O. Martin, Jr., Secretary of State of Louisiana.
    No. 56821.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: Walter C. Dumas, applying for remedial writs of certiorari, prohibition and mandamus. 318 So.2d 673.

Writ denied. The judgment of the Court of Appeal is correct.

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

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

CALOGERO, J.,

concurs in this writ denial, believing that the Chairman, Democratic State Central Committee was available to accept qualifications.


text:
    Claude R. SLEDGE v. Andrew D. McGLATHERY.
    No. 57021.
    Supreme Court of Louisiana.
    Oct. 21, 1975.
   In re: Andrew D. McGlathery, Jr. applying for Use of Plenary Powers and Exercise of Authority and Supervisory Jurisdiction.

Granted. (See Order).

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Jack E. Burgess, Judge of the Eleventh Judicial District Court for the Parish of DeSoto to transmit to the Supreme Court of Louisiana, on or before the 7th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings maybe ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 7th day of November, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Nolin Robert CLAYTON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56902.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Nolin Robert Clayton applying for Writ of Habeas Corpus and/or Remedial Writs.

Granted. (See Order.).

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Elmo E. Lear, Judge of the Nineteenth Judicial District, Court for the Parish of East Baton Rouge, to transmit to tjie Supreme Court of Louisiana, on or before the 3rd day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 23rd day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


author: DIXON, J.,

text:
    Earl E. REEVES v. GULF STATES UTILITIES COMPANY et al.
    No. 56433.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Gulf States Utilities Co., Robert J. Tassin and Royal Indemnity Co. applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 312 So.2d 118.

Writ granted. The judgment of the Court of Appeal is vacated and the case is remanded to the Court of Appeal for a consideration of the amount of damages. See Gonzales v. Xerox Corporation et al., La., 320 So.2d 163 (Handed down October 1, 1975).

DIXON, J.,

dissents from the granting of writs, being of the opinion the disposition of the case by the Court of Appeal was correct.


text:
    Earl E. REEVES v. GULF STATES UTILITIES CO. et al.
    No. 56468.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Earl E. Reeves applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 312 So.2d 118.

Writ granted. The judgment of remand is vacated and the case is remanded to the court of appeal for a consideration of the amount of damages. See Gonzales v. Zer-ox Corp. et al., La., 320 So.2d 163 (Handed down October 1, 1975).

DIXON, J.,

dissents, being of the opinion the disposition by the court of appeal was correct.


text:
    STATE of Louisiana ex rel. Edward FRANK v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 56866.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Edward Frank applying for Writ of Mandamus.

Granted. See Order.

On considering the petition of the relator, Edward Frank, in the above entitled cause.

Ordered, that the Honorable Edward M. Mouser, Judge of the Thirty-Third Judicial District Court, Parish of Allen, act forthwith on the petition of the relator as filed in his court and in this court, and advise the relator of whatever action is taken.


text:
    STATE of Louisiana ex rel. Charles Ray WALKER and Gary Walker v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56892.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Charles Ray Walker and Gary Walker applying for Writ of Certiorari.

Granted. Evidentiary hearing ordered to determine whether applicants are entitled to an out-of-time appeal.

SUMMERS, J., I would not order a hearing in this matter without obtaining a response from the trial judge.


text:
    John McCORMICK and Ernie Ray Clanton v. Elayn HUNT.
    No. 56907.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: State of La. through William J. Guste, Jr., Attorney General applying for writs of Certiorari, Mandamus and Prohibition.

Granted. (See Order).

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

It is ordered that a writ of certiorari issue herein, directing the Honorable John S. Covington, Judge of the 19th Judicial District, Court for the Parish of E. Baton Rouge to transmit to the Supreme Court of Louisiana, on or before the 3rd day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 23rd day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


author: TATE, J.,

text:
    STATE of Louisiana ex rel. Larry ALLEN v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56622.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Larry Allen, applying for writs of Habeas Corpus.

Writ denied. On the basis of the application as supplemented, there is no merit in this application.

TATE, J.,

concurs. The evidentiary hearing of October 30, 1972, filed in this Court discloses to be without merit, the sole contention raised by this application to this Court.


text:
    Carlton Joseph GUIDRY and Josephine Jolivette Guidry v. STATE of Louisiana, Through the DEPT. OF HOSPITALS, et al.
    No. 56860.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Carlton Joseph Guidry and Josephine Jolivette Guidry applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 317 So.2d 222.

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


text:
    STATE of Louisiana ex rel. Nathan WALKER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56865.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Nathan Walker, applying for writ of habeas corpus.

Writ refused. The record reflects that the relator was fully advised of his rights and voluntarily entered the plea with the assistance of counsel.


text:
    STATE of Louisiana ex rel. Robert E. LOVE v. Bill C. DOWNEY, Clerk, Parish of Ouachita, Monroe, La.
    No. 56867.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Robert E. Love applying for writ of mandamus.

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


text:
    STATE of Louisiana ex rel. William Oliver WASHINGTON v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56868.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: William Oliver Washington applying for Writs of Habeas Corpus, Cer-tiorari, Prohibition and Mandamus.

Writ Denied: The allegations concerning the attorney’s trial tactics do not disclose a basis for post-conviction relief, aside from the competency of counsel displayed at trial and on appeal.


text:
    STATE of Louisiana ex rel. Bobby Ray JONES v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56869.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Bobby Ray Jones, applying for writ of certiorari.

The application is denied; the record indicates a plea bargain, adequate assistance of counsel, knowing and voluntary pleas of guilty and no double jeopardy.


text:
    STATE of Louisiana ex rel. Hayes WILLIAMS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56879.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Hayes Williams applying for Writs of Certiorari, Mandamus, Review and Prohibition.

Application denied; the allegations do not warrant the relief requested. There is no merit in the contention — State v. Green, 221 La. 713, 60 So.2d 208; State v. Myers, 261 La. 100, 259 So.2d 27.


text:
    STATE of Louisiana v. Michael FONSECA.
    No. 56881.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Michael Fonseca applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

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


text:
    Leon McBETH v. The SALVATION ARMY et al.
    No. 56886.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: The Salvation Army and The American Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 314 So.2d 468.

Application denied. The judgment complained of is not final, since it merely reversed a summary judgment and remanded the case for trial.


text:
    STATE of Louisiana v. Leroy MADISON.
    No. 56882.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Leroy Madison applying for Writs of Certiorari, Prohibition and Mandamus.

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


text:
    SUCCESSION of Bolivar E. KEMP, Jr., (Batson Lumber Co., Inc. and Reimers-Schneider Co., Inc., Substituted) v. Guy WELLS, Executor, Succession of Helen Edwards Robertson.
    No. 56885.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Guy Wells, Executor of Succession of Helen Edwards Robertson applying for certiorari of writ of review to the Court of Appeal, First Circuit, Parish of Tangipahoa. 316 So.2d 919.

Writ denied. The result is correct.


text:
    Noelie Matulich McCARSTLE v. Louis Henry McCARSTLE.
    No. 56888.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Noelie Matulich McCarstle applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, 'Parish of East Baton Rouge. 317 So.2d 306.

Writ denied. Judgment of court of appeal is final. See La.Code Civ.P. art. 2167; La.Sup.Ct. Rule 10, section 4(b).


text:
    Lia Tuzy HIGGINS v. McGEE’S DISCOUNT STORES, INC.
    No. 56889.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: McGee’s Discount Stores, Inc. applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 316 So.2d 472.

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


text:
    STATE of Louisiana v. Tyrone EDWARDS.
    No. 56890.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Tyrone Edwards, applying for writs of Certiorari, Prohibition and Mandamus.

Writ denied. On the basis of the evidence on a hearing to determine the validity of the guilty plea, there is no merit to this application.


text:
    STATE of Louisiana ex rel. Daniel Joseph SANTOS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 56891.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Daniel Joseph Santos, applying for writ of habeas corpus.

Writ denied. We are unable to hold that the allegations warrant post-conviction relief.


text:
    STATE of Louisiana ex rel. Terry ABELSETH v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 56893.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Terry Abelseth applying for Writ of Mandamus.

Writ denied. Inasmuch as the district judge has acted upon petitioner’s application for writs of habeas corpus, this application for mandamus is moot.


text:
    STATE of Louisiana ex rel. Louis Joseph BELLARD v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary and Cecil C. Cutrer, Judge, 14th Judicial District Court, et al.
    No. 56898.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Louis Joseph Bellard applying for writ of habeas corpus.

Writ refused. The record of the plea demonstrates that it was free and voluntary and the showing is otherwise insufficient to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Archie S. HALL v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56899.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Archie S. Hall applying for Writ of Certiorari.

Writ Denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction. The evidentiary hearing held in the trial court in involving the identical contentions made here shows that the guilty plea was free and voluntary and applicant was aware of the consequence of the plea.


text:
    STATE of Louisiana v. Leon ZIELENSKI.
    No. 56999.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Leon Zielenski, applying for writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana v. Jacob JOSEFOVITZ.
    No. 57000.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Jacob Josefovitz applying for writs of Certiorari, Prohibition, Mandamus and for a Stay Order.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction,


text:
    STATE of Louisiana v. Paul C. RITTINER and Baron Rittiner.
    No. 57001.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Paul C. and Baron Rittiner applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana v. Patrick McGOWAN.
    No. 57002.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Patrick McGowan, applying for writs of Certiorari, Prohibition, Mandamus and for Stay Order.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana v. Farook Mohammed ESSA.
    No. 57003.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Farook Mohammed Essa applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. Insufficient showing to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana v. Larry McNEAL.
    No. 56872.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Eddie Knoll, District Attorney, Parish of Avoyelles applying for Writs of Certiorari, Prohibition and Mandamus.

Granted. (See Order.)

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Earl Edwards, Judge of the Twelfth Judicial District Court for the Parish of Avoyelles, to transmit to the Supreme Court of Louisiana, on or before the 10th day of November, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 23rd day of January, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Virgil T. JACKSON, Jr., Testamentary Executor of the Succession of Mrs. Edith Forbes v. Leo G. D’AUBIN et al.
    No. 56909.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Virgil T. Jackson, Jr., and Emile A. Rainold, III, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of E. Baton Rouge.

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


text:
    Wilma M. BILLIOT v. Lyes BOURG d/b/a Lyes Bourg Truck Lines, et al.
    No. 56920.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Wilma Billiot, etc. et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne, 317 So.2d 684.

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


text:
    P. O. P. CONSTRUCTION COMPANY v. STATE FARM FIRE AND CASUALTY CO.
    No. 56910.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: P. O. P. Construction Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 316 So.2d 863.

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


author: SUMMERS, J.

text:
    STATE of Louisiana v. Ronald Paul LAPEYROUSE.
    No. 56925.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Ronald Paul Lapeyrouse applying for Writs of Prohibition, Mandamus and Stay Order.

Granted. The judgment of the trial court denying the motion to withdraw the guilty plea is reversed, and the motion to withdraw the guilty plea is granted and the case is remanded to the district court for further proceedings.

SUMMERS, J.

Although I am of the opinion the writ should be granted, I would give the trial judge an opportunity to respond before reversing the ruling.


text:
    STATE of Louisiana ex rel. Joseph B. SERIGNE v. Honorable Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 56864.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Joseph B. Serigne applying for Writ of Mandamus.

Writ denied. Application denied by trial judge on October 22, 1975. The application is moot.


text:
    STATE of Louisiana v. Charles ALEXANDER.
    No. 56874.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Charles Alexander, applying for writ of certiorari.

Writ not considered as untimely in absence of showing from Post Office documentation of timely filing. See Supreme Court Rule 10, Section 4(b) (1974), without prejudice to re-apply if such documentation by affidavit or otherwise. The showing here made may be incorporated by reference in such re-application. Rule 10, Section 4(a).


text:
    Betty Overstreet SPELL v. EXECUTIVE OFFICERS, DIRECTORS AND/OR SHAREHOLDERS OF P & W INDUSTRIES, INC., et al.
    No. 56905.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Executive Officers, Directors and/or Shareholders of P & W Industries, Inc., et al applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of St. Tammany. 316 So.2d 474.

Writ denied. The ruling is correct.


text:
    Ollie J. GAUTHIER v. EMPLOYERS NATIONAL INSURANCE COMPANY et al.
    No. 56906.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Ollie J. Gauthier applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 316 So.2d 769.

Writ refused. On the facts found by the court of appeal, the result is correct.


author: MARCUS, J.,

text:
    CARL HECK ENGINEERING, INC. v. HASELDEN & ASSOCIATES, INC., now Warren Engineering and Construction Co., Inc.
    No. 56908.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Haselden & Associates, Inc. Now Warren Engineering and Construction Co., Inc. applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of Lafourche. 316 So.2d 890.

Writ Denied. Judgment not final.

MARCUS, J.,

is of the opinion that the writ should be granted to consider this case in view of this court’s decision in N. 0. St. Joseph Ass’n v. Magnier, 16 La.Ann. 338 (1861).


text:
    Walter Foard WILSON, Jr. v. Jerry Belle Martin WILSON.
    No. 56912.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Jerry Belle Martin Wilson applying for certiorari or writ of review to the Court, of Appeal, First Circuit, Parish of Tangipahoa. 317 So.2d 629.

Writ denied. On the facts found by the Court of Appeal the result is correct.


text:
    James F. PIERSON, Jr. v. DEPARTMENT OF REVENUE, State of Louisiana.
    No. 56914.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: American Telephone and Telegraph Co. applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 316 So.2d 404.

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


text:
    George E. MILLER and Inez C. Miller v. MONTGOMERY WARD & CO., INC.
    No. 56914.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: George E. Miller and Inez C. Miller applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 317 So.2d 278.

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


text:
    Richard CARTER v. Olivia Lewis CARTER.
    No. 56913.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Richard Carter applying for cer-tiorari or writ of review to the Court of Appeal, First Circuit, Parish of Iberville. 316 So.2d 829.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


text:
    James F. PIERSON, Jr. v. DEPARTMENT OF REVENUE, State of Louisiana.
    No. 56916.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Dept, of Revenue, State of Louisiana applying for certiorari, or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 316 So.2d 404.

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


text:
    Collin S. WILLIAMS v. FELICIANA FINANCE COMPANY, INC.
    No. 56917.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Collin S. Williams applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Feliciana. 316 So.2d 833.

Application denied. The result is correct.


text:
    SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION v. Joseph (Joe) HUVAL et al.
    No. 56919.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Southwest Louisiana Electric Membership Corp. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 317 So.2d 264.

Writ denied. The result is correct.


text:
    Russell ORTEGO v. STATE BANK AND TRUST COMPANY OF GOLDEN MEADOW.
    No. 56923.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Russell Ortego applying for cer-tiorari or writ of review to the Court of Appeal, First Circuit, Parish of Lafourche. 316 So.2d 826.

Writ denied. On the facts found by the Court of Appeal, the result is correct.


text:
    Anthony REINERS v. STRAN-STEEL CORPORATION et al.
    No. 56924.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Anthony Reiners applying for cer-tiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Acadia. 317 So.2d 657.

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


text:
    Robert C. REED v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA.
    No. 56927.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: American Casualty Company of Reading, Pennsylvania applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne. 317 So.2d 648.

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


text:
    Percy Charles BOURGEOIS et ux. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    No. 56933.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Government Employees Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 316 So.2d 804.

Writ refused. No error of law.


text:
    Jerrill A. MUSSO v. STATE of Louisiana, Through the COLLECTOR OF REVENUE.
    No. 56921.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: State of Louisiana through The Collector of Revenue applying for certiora-ri or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 316 So.2d 470.

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


text:
    Adam ANDREW v. STATE FARM MUTUAL AUTOMOBILE INS. CO., et al. Rodney BABINEAUX v. William R. LEWIS et al. Curley SONNIER v. William R. LEWIS et al.
    No. 56934.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Rodney Babineaux and Curley Sonnier applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Acadia. 316 So.2d 883, 316 So.2d 887 and 316 So.2d 885.

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


text:
    Gordon M. WHITE et al. v. Emmett E. BATSON.
    No. 56926.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Emmett E. Batson applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 317 So.2d 205.

Writ denied. No error of law.

SUMMERS, J., takes no part.


text:
    AMERICAN SECURITY INSURANCE COMPANY v. GRIFFITH’S AIR CONDITIONING et al.
    No. 56936.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Griffith’s Air Conditioning, et al applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Calcasieu. 317 So.2d 256.

Application denied. The result is correct.

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

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


text:
    AMERICAN SECURITY INSURANCE CO. v. GRIFFITH’S AIR CONDITIONING et al.
    No. 56945.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: St. Paul Fire and Marine Ins. Co. and Fedders Corp. applying for certio-rari or writ of review to the Court of Appeal, Third Circuit, Parish of Calcasieu. 317 So.2d 256.

Application denied. The result is correct.

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

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


text:
    STATE of Louisiana ex rel. Simon SMITH, Jr. v. S. E. LEE, Asst. District Attorney.
    No. 56958.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Simon Smith, Jr., applying for writ of mandamus.

Writ denied. Although no criminal case is pending nor bill of information is filed against Mrs. Grimble, the District Attorney has full discretion as to who and why he will prosecute. La.C.Crim.Procedure, Art. 61.


author: SUMMERS, J.,

text:
    STATE of Louisiana ex rel. Andrew SIMMONS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56897.
    Supreme Court of Louisiana.
    Oct. 24, 1975.
   In re: Andrew Simmons applying for Writ of Certiorari.

Writ denied in part and granted in part. Evidentiary hearing ordered relative to double jeopardy issue. See State ex rel. Wikberg v. Henderson, La., 292 So.2d 505.

SUMMERS, J.,

is of the opinion the writ should be denied. Although the issue of double jeopardy is mentioned tangentially in the application, it is not assigned as error. Moreover, even if assigned, the application does not support the contention that double jeopardy occurred.


text:
    Jennings C. CAIN v. WITCO CHEMICAL CORPORATION et al.
    No. 57038.
    Supreme Court of Louisiana.
    Oct. 28, 1975.
   In re: Employers Insurance of Wausau, J. D. Autrey, James Haues and James Rogers applying for supervisory writs of cer-tiorari or review.

Writ denied. Stay order rescinded. No error of law.


author: MILLER, Judge. HOOD, Judge

text:
    SOUTHERN NATURAL GAS COMPANY, Plaintiff-Appellee, v. GULF OIL CORPORATION et al., Defendants-Appellants.
    No. 5119.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 2, 1975.
    Rehearing Denied Nov. 13, 1975.

      Caffery, Duhe & Davis, by Patrick T. Caffery, New Iberia, for defendants-appellants.
    Landry, Watkins, Cousin & Bonin by William O. Bonin, New Iberia, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MILLER, Judge.

Defendants Gulf Oil Corporation and Berry Brothers General Contractors appeal a judgment awarding $15,802.74 to plaintiff Southern Natural Gas Company for property damages sustained when Berry’s dredge picked up and ruptured Southern’s natural gas pipeline. We affirm in part, and in part reverse.

Berry contracted with Gulf to “sweep” or re-dredge an existing canal leading from Big Bayou Pigeon to old locations and dredge a new canal and drill site as an extension of the canal. Southern’s meter platform was located on the edge of the existing canal. From this point Southern’s unmarked six-inch pipeline (which had not been used for five years) extends 395' along the canal at its approximate center at some points. The pipeline then turns ninety degrees and enters a pipeline ditch to ultimately form part of a “gas gathering system.” Southern’s pipeline construction and Berry’s dredging operation were both pursuant to appropriate permits.

Representatives of Gulf and Berry made an on-site inspection of the area prior to commencing dredging operations. On August 29, 1972 Berry’s dredge was towed to the canal and began its sweep at Big Bayou Pigeon. While staking the channel to be dredged the captain discovered Southern’s meter platform and probed to determine whether the line from the platform crossed the canal. He found nothing because he didn’t consider the possibility the line might meander along the center of the canal. The next morning the dragline bucket picked up the pipeline and ruptured it.

Defendants do not contest -the trial court’s holding them negligent. They specify as error the trial court’s failure to find plaintiff negligent, the canal to be navigable, and to apply the doctrine of comparative negligence provided by the substantive law of admiralty.

The trial court properly set forth the test for navigable waterways as that prescribed in The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871): waterways are “ . . . highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” The scene of this accident accords with this definition in that navigability is the purpose for which the original canal was constructed and the present activity is intended to maintain. Cf., U. S. v. Sexton Cove Estates, Inc., 389 F.Supp. 602 (S.D.Fla.1975).

The trial court was troubled by the possibility that private ownership of the canal might create an exception to exclude applicability of admiralty and maritime law. However, State and Federal jurisprudence uniformly reject this contention. In National Audubon Society v. White, 302 So.2d 660 (La.App. 3 Cir. 1974) we held the Mcllhenny canal retained its private character despite its navigability. In Down Chemical Co. v. Dixie Carriers, Inc., 463 F.2d 120 (5th Cir. 1972), cert. denied 409 U.S. 1040, 93 S.Ct. 525, 34 L.Ed.2d 490 (1973), a private canal constructed by Dow for the sole purpose of transporting by barge materials between two of its plants in Houston, Texas was navigable and admiralty law was applied.

Although the damage sustained was beneath the surface of the water it was “damage caused by a vessel in navigation” on navigable waters and was within the intent of the Admiralty Extension Act, 46 U.S.C.A. § 740. A dredge barge is a “vessel in navigation.” 2 Am.Jur.2d, § 33, note 12; 2 C.J.S. Admiralty § 28. Application of the substantive law of Admiralty is therefore required.

In determining the parties’ negligence, the trial court found Gulf and Berry negligent in failing to check the public records for notice of the existence of a pipeline. Checking the records would have been a vain and useless act, because the only document of record relating to this pipeline was a map attached to Southern’s application for a permit to build the main gas gathering line. The map did not show the location of the damaged line. It did not even show the canal. Tr. 212, 255. According to the evidence, there was nothing of record to show where Southern located its pipeline.

Since 1) Gulf and Berry did not examine the records and 2) their representatives knew of Southern’s platform in the canal and that a pipeline ditch entered the canal at a point 395 feet from the platform, Southern’s failure to place a description of record is only a nominal or minor fault. Admiralty law does not require a mechanical application of comparative negligence. Were this Southern’s only fault it would have been properly excused from all fault.

Gulf and Berry contend Southern was negligent in laying the pipeline at or above —8.0 feet mean sea level in the canal and also in failing to post warning signs that the pipeline was below the water.

The trial court erred in holding Southern’s compliance with the Corps of Engineers permit requirements in laying its line pretermits all questions concerning Southern’s negligence in laying and marking its line. Tr. 397. Negligence does not solely depend on violation of a statute or rule. Jackson v. Jones, 224 La. 403, 69 So.2d 729 (1954); Traders & General Insurance Co. v. Robison, 289 So.2d 178 (La.App. 1 Cir. 1973). It follows that unreasonable conduct is not excused when one merely complies with minimum regulatory requirements. Admiralty has an applicable statutory expression of the same proposition in navigation rules. Observance of the rules will not excuse “neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.” International Rules, Rule 29, 33 U.S.C.A. § 147a; Harbors, Rivers and Inland Waters, Art. 29, 33 U.S.C.A. § 221.

If the purpose of the regulation had been to prevent dredging accidents, compliance might constitute a prima facie showing of due care. But no such purpose was shown.

More important, if compliance with the permit excuses plaintiff’s unreasonable acts, defendants are also excused since this dredging was also conducted pursuant to a Corps of Engineers permit. Tr. 35.

We here consider the reasonableness or unreasonableness of Southern’s failure to mark the location of this unusually located pipeline. Southern knew the pipeline extended into and under the waterway. Tr. 206. They should have expected the waterway to be maintained by dredging from time to time. Southern expected development of the area as acknowledged by Southern’s supervisor’s testimony they had not abandoned the pipeline during its five year period of non-use. Tr. 180, 192. And it was established the usual depth of such canals is —8.0 feet.

Southern’s representative testified that warning signs should be installed along the pipeline route (Tr. 210) but none were placed on this line. Reference is made to a "DANGER” sign on Southern’s meter platform. Although the sign indicated the nature of the platform facility as a gas installation, it provided no warning of the nature or extent of underwater connections.

Finally, this pipeline had been damaged in a prior dredging accident. Tr. 242, 257. Under these circumstances, Southern’s failure to remove the line or place adequate warning signs along the pipeline constitutes negligence on Southern’s part.

Counsel for Southern correctly points out that minimum regulations (49 CFR 192) under ihe Gas Pipeline Safety Act (49 U.S.C.A. § 1671 et seq.) have not been extended beyond the populated areas which urgently require their protection. However, absence of regulation does not excuse unreasonable behavior any more than compliance with existing regulations might excuse such behavior. We therefore find Southern to have been substantially at fault.

Finally we consider the contention that Southern’s negligence can be excused under the last clear chance doctrine, or the similar “major-minor fault” doctrine found in admiralty.

In the context of collision cases, last clear chance applies where the injured party was so clearly visible he must have been seen but for inattentiveness or failure to keep a proper lookout. This is not the case here. The pipeline was concealed beneath the water. There is evidence from which the existence of the line may be inferred and perhaps even its course under the water may have been determined. But where such inference is necessary to perceive the danger, it is not apparent in the sense required by the last clear chance doctrine. The cases cited by Southern are analyzed and distinguished on this same basis in Tiger Shipping Co. v. Tug Carville, 381 F.Supp. 1340 (E.D.Va.1974).

Furthermore, application of the doctrine would effectively -penalize Gulf and Berry because their negligence was not greater. Cf., Jackson v. Continental Casualty Co., 308 So.2d 438 (La.App. 3 Cir. 1975).

Finding the parties equally at fault, the trial court judgment is amended so that Southern will sustain half the loss. As amended the trial court judgment is affirmed. Costs at trial are assessed half to plaintiff and half to defendants. Costs of this appeal are taxed to plaintiff.

Affirmed in part; in part, reversed and rendered.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I do not agree that the canal involved in this case is a navigable waterway of the United States in the sense that it justifies the application of admiralty or maritime law.

The original grant of admiralty and maritime jurisdiction to the federal courts of the United States was made in Article 3, Section 2, of the United States Constitution, which provides:

“The judicial Power shall extend to all Cases of admiralty and maritime Jurisdiction; . . .”

Since that time, Congress has provided that the district courts of the United States shall have exclusive original jurisdiction of all civil cases of admiralty or maritime jurisdiction, “saving to suitors” all other remedies to which they are otherwise entitled. In that connection, 28 U.S.C.A., Section 1333, provides, in part, that:

“The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
“(1) Any civil case of admiralty or maritime jurisdiction, saying to suitors in all cases all other remedies to which they are otherwise entitled . . .”

Congress has extended the admiralty and maritime jurisdiction of federal courts to include actions for damage or injury done or consummated on land, if the damage or injury was caused by a vessel on navigable water. 46 U.S.C.A., Section 740, provides that:

“The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land. . . .”

In order for a party to establish admiralty jurisdiction under 46 U.S.C.A., Section 740, it is necessary for him to show that the damage or injury was caused by a vessel “on navigable water,” or on a “navigable waterway of the United States.”

The most often cited definition of what constitutes “navigable waterways of the United States” is set out in the landmark case of The Daniel Ball v. United States, 10 Wall. 557, 19 L.Ed. 999 (1870), where the United States Supreme Court said:

“Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be condttcted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the Acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.” (Emphasis added).

In the cited case, The Daniel Ball was a 123-ton steam propelled vessel which was engaged as a common carrier, transporting merchandise and passengers regularly on Grand River, between the cities of Grand Rapids and Grand Haven, in the State of Michigan. It was being operated without a license. Federal laws prohibited the operation of a steam propelled vessel on “navigable waters of the United States” without a license, and a libel was filed against that ship to recover the penalty provided by law. The issue presented was whether the common law doctrine of navigability, based on the ebb and flow of the tide, was applicable, or whether some other test should be used to determine what is a navigable water of the United States. The court concluded that the common law test should not be used, but instead that the above quoted rule should be applied. The court found, upon applying that rule, that Grand River was a navigable waterway of the United States, since it was capable of bearing a 123-ton ship laden with merchandise and passengers a distance of at least 40 miles from its mouth in Lake Michigan, and since it was capable of and was actually being used in interstate and foreign commerce. With reference to the nature of that water, the court said:

“. . . And by its junction with the lake it forms a continued highway for commerce, both with other States and with foreign countries, and is thus brought under the direct control of Congress in the exercise of its commercial power.”

The definition of “navigable water,” as laid down in The Daniel Ball, has been cited with approval repeatedly at all levels of appellate review for 105 years.

For a waterway to fall within the established definition of a waterway of the United States, it must be shown that it is capable of valuable public use in its natural condition, and that it has a capacity for useful interstate or foreign commerce of a substantial and permanent nature. See United States v. State of Oregon, 295 U.S. 1, 55 S.Ct. 610, 79 L.Ed. 1267 (1935); United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1916); Leovy v. United States, 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914 (1899). Occasional or exceptional use under abnormal conditions will not suffice, nor will a mere theoretical navigability or one that is temporary or unprofitable be sufficient. United States v. Doughton, 62 F.2d 936 (4 Cir. 1933).

In order for a waterway to be classified as a “highway of commerce,” within The Daniel Ball definition, the commerce must be of a substantial and permanent character. Leovy v. United States, supra; Healy v. Joliet & Chicago R. Co., 116 U.S. 191, 6 S.Ct. 352, 29 L.Ed. 607 (1886); State of Oklahoma v. State of Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922); Brewer-Elliott Oil & Gas Co. v. U. S., 260 U.S. 77, 43 S.Ct. 60, 67 L.Ed. 140 (1922); Harrison v. Fite, 148 F. 781 (C.C.A. 8 Cir. 1906); Toledo Liberal Shooting Co. v. Erie Shooting Club, 90 F. 680 (C.C.A. 6 Cir. 1898); Gulf & I. Ry. Co. of Texas v. Davis, 26 F.2d 930 (S.D.Tex.1928); Rowe v. Granite Bridge Corp., 21 Pick. (Mass.) 344; Wethersfield v. Humphrey, 20 Conn. 218; North American Dredging Co. of Nevada v. Mintzer, 245 F. 297 (C.C.A. 9 Cir. 1917).

In United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940), the Supreme Court held that a waterway, although not navigable in its ordinary condition, may nevertheless be held to be navigable if it can be made suitable for use as a “highway of commerce” in the future by “reasonable improvements.”

Thus the jurisdictional question presented here must include an inquiry, first, into whether the canal in question is capable of being used, in its ordinary condition, for valuable public use as a highway of commerce, and for useful interstate or foreign commerce of a substantial and permanent nature. If it is not capable of that use in its natural condition, then the court must look to the facts to see if the waterway could fit the definition of a highway of commerce, in the event “reasonable improvements” are made. In making the last mentioned inquiry, the court must determine what is “reasonable” in making the waterway capable of serving as a highway of commerce.

To establish admiralty jurisdiction, the party who asserts it must prove that the waterway is navigable in fact and forms a “continuous channel” or highway for commerce among the states or with foreign countries. The Daniel Ball, supra; The Montello, 20 Wall. (U.S.) 430, 22 L.Ed. 391; Leovy v. United States, supra.

In the instant suit the defendants, Gulf Oil Corporation and Berry Brothers, are asserting that the canal in which the damage occurred was a navigable waterway. The burden of proving navigability thus rests on them. They take that position, contending that since the waterway was navigable, it comes under federal jurisdiction, and the Code of Federal Regulations, Title 49, Section 192.727, applies. They argue that plaintiff was negligent in having failed to comply with that regulation.

The majority has found that plaintiff was negligent for reasons other than those set out in the federal regulations, but that maritime law applies and accordingly that defendants are liable for only one-half of the damages sustained by plaintiff. I agree that plaintiff is guilty of contributory negligence, but I do not agree that maritime law applies. I think Louisiana tort law applies, and that plaintiff is barred from recovery by its own contributory negligence. Oddly enough, if plaintiff’s view as to navigability is accepted, as I believe it should be, plaintiff’s demands will have to be rejected entirely. On the other hand, if defendants’ arguments are accepted, defendants will be condemned to pay plaintiff one-half the damages which were sustained. Regardless of the ultimate outcome of the case, the law is clear that the burden of proving navigability rests on the defendants who assert it, and the proper law must be applied when that issue is determined.

The majority has brushed aside the issue of navigability, devoting only three short paragraphs to it. I believe that that issue is of tremendous importance, not only in this case, but because of the disastrous effect the majority opinion will have on many titles to real property if the opinion is allowed to stand.

It is significant to note that the defendants in this suit did not allege in any of their pleadings that the canal on which this accident occurred was navigable, or that maritime law should be applied. On the contrary, in response to plaintiff’s petition defendants specifically pleaded contributory negligence on the part of the plaintiff, under Louisiana law, as a bar to recovery by plaintiff. The position they took in their pleadings thus is inconsistent with the position they take on this appeal.

At the trial, plaintiff timely objected ,to defendants’ attempt to prove navigability, on the ground that it would constitute an enlargement of the pleadings. The trial judge allowed the evidence to be introduced subject to the objection, and he ultimately ruled that it was admissible. He stated in his reasons for judgment, however, that he had serious doubts as to whether the canal was a navigable waterway of the United States, as that term is defined in The Daniel Ball case, supra, noting that the canal had been “constructed on private land, with private funds, and would be neither a common nor a public waterway.” The trial judge made no decision as to navigability, however, since he concluded that the outcome of the case would be the same whether Louisiana law or maritime law is applied.

In Robichaux v. Theriot, 242 So.2d 644 (La.App. 1 Cir. 1970), a collision between two motorboats occurred on a canal in LaFourche Parish. The defendant did not allege that the canal was navigable, but the question of navigability and the application of admiralty law became an issue at the trial. The court held, in effect, that defendant was precluded from asserting the navigability of the canal because he had failed to allege it in its pleadings. The court said:

“Counsel for the appellant contends that the Forty Arpent Canal is a navigable body of water, and that if the court should find any negligence on the part of Breaux was a concurrent cause of the collision, then, the appellant argues that any judgment rendered should not be a solidary liability, but that the Divided Damages Rule of Admiralty Law should apply. The trial court correctly disposed of this issue by pointing out that the issue was not raised either in the pleadings, or in the trial of the case. In the absence of proof of the navigability of the body of water, the court could not presume that it was navigable. Burns v. Crescent Gun & Rod Club, 116 La. 1038, 41 So. 249. The Trial Court correctly disposed of this issue by holding the evidence did not show the body of water was navigable.” (Emphasis added).

In my opinion the rule applied in Robi-chaux, supra, should be applied here.

Regardless of the pleadings, however, I think the evidence in this case shows that the canal on which the accident occurred clearly was not a navigable waterway of the United States, and that admiralty law is not applicable.

The waterway involved here is a private canal, constructed on private lands, with private funds, for the sole purpose of enabling a privately owned company to explore for oil and gas. It has never been used for navigation of any kind, and it is incapable of being used for any kind of commerce.

Actually, it was a dead-end slip, dug in a swampy area of Iberia Parish befhre 1965, for the sole purpose of getting a drilling rig into a location where a gas well was to be drilled. The original slip was about 300 or 400 feet long, and after it was completed a drilling rig was located at the end of that slip, the well was drilled, and the pipeline involved in the suit was constructed partially in the middle of the slip. That well was abandoned in 1966, and neither the well nor the pipeline have been used since that time.

In 1965 Phillips Petroleum Company extended the slip or canal further to the south, and it drilled a well at the fiead-end of the extended slip. In August, 1972, Gulf Oil Corporation arranged to dredge out the original and a part of the extended canal so that it also could get a drilling rig to a location near the Phillips Petroleum Company well. This accident occurred while the original slip or canal was being cleaned out and restored to its original depth. The evidence indicates that the total length of the dead-end slip or canal after all of these extensions had been made was about 2,000 feet.

The canal was about 70 feet wide. That is the minimum width that canals used to reach drilling locations could be made, since the dredge boats used in digging them are approximately 50 feet wide. The evidence shows, without contradiction, that the canal involved here was never used for navigation of any kind. The only vessels which have ever used is, according to the record, were (1) a dredge in 1965 when the original slip was extended to reach the Phillips location, (2) the dredge operated by Berry Brothers in 1972 when this accident occurred, and (3) a floating “camp house,” which was allowed to tie up in the canal for a period of time. The record is devoid of any other use of or activity on this canal. The evidence does not even show that the canal was used to transport drilling crews to and from the rigs while drilling operations were conducted. When defendants, themselves, checked this canal prior to beginning the last dredging operation, they used aircraft instead of water craft to get to and from if.

The north end of this dead-end canal joins or connects with a stream known as Bayou Pigeon, a winding stream which flows into “Plaquemine Route Waterways,” the latter being described as being a part of the Atchafalaya Basin. Those waterways flow into the Atchafalaya River, and that river in turn flows into the Gulf. The evidence shows that Bayou Pigeon was navigable, in fact, in that boats and barges could use it, but there is no. showing as to whether even that bayou could be classified as a highway of commerce.

In my opinion the private canal involved here is not a waterway which the general public can utilize as a highway of commerce. A “highway of commerce” denotes an instrumentality over or on which the general public may freely traverse and carry out useful commercial purposes. A dead-end canal, only 2,000 feet in length, may be useful for some commercial purpose for the private owners but it cannot be said to offer the general public a viable vehicle on which to conduct trade or travel.

A private canal, built on private land with private funds for purposes of navigation does not become public in the sense

that the public is entitled to the use of the private canal and the use of its banks. Harvey v. Potter, 19 La.Ann. 264 (1867) and National Audubon Society v. White, 302 So.2d 660 (La.App. 3 Cir. 1974). The dead-end canal involved here was built on private land, with private funds, for the purpose of floating a drilling rig to a drilling site. The evidence does not show that it has ever dedicated to public use or that the owners of the land ever intended to dedicate the canal for such use. It would follow, therefore, that the owners of this private canal have the absolute right to control its use, including the right to prohibit the general public from using it entirely, or even to dam it up. Under those circumstances, I think it is illogical to hold that this dead-end private canal is a public highway of commerce, capable of sustaining admiralty jurisdiction.

The majority relies on National Audubon Society v. White, 302 So.2d 660 (La.App. 3 Cir. 1974), and Dow Chemical Company v. Dixie Carriers, Inc., 463 F.2d 120 (5 Cir. 1972), in holding that the private ownership of the waterway is irrelevant to the question of whether admiralty jurisdiction applies. I think both of those cases compel the conclusion that maritime jurisdiction does not apply here.

In National Audtibon, supra, no question of maritime jurisdiction was presented, but the opinion makes it clear that the canal involved there was privately owned and controlled, and was not a public highway of commerce. In Dow, supra, only one paragraph was devoted to the question of the applicability of maritime law, and very few facts were given with reference to the canal. By referring to the opinion handed down by the U.S. District Court in that case, however, in 330 F.Supp. 1304 (S.D.Tex., 1971), it appears that the Dow canal was more than five miles long, it connected with the Intercoastal Waterway, and was used extensively by barges, tug boats and other commercial vessels in interstate commerce. At least two large industries used it constantly. That report made it clear that it had been dedicated for public use.

In Mintzer v. North American Dredging Co., 242 F. 553 (D.C.Cal.1916), the court said:

“Nor does the evidence show that the channel is or will be in any true sense useful to the public for the purpose of navigation. It is true it is now within the corporate limits of the city of Richmond, which in that sense may be said to constitute a public terminus. But, as the evidence shows, it lies only at its ‘back door,’ so to speak, runs wholly through private property, and is so situated that its use is, and so far as appears can be, available only to the Oil Company and the Belt Railroad, should the latter see fit to construct an approach. It is not accessible or available to the public, nor to any other private industry; the evidence showing that the nearest established street of the town is at least a quarter of a mile from its southern terminus. Under the principles above stated, I am satisfied that the court would not be justified upon the facts in holding this channel to be a navigable stream.”

I agree with the following language which was used in Malony v. City of Milwaukee, 1 F. 611 (D.C.N.Y.1880):

“Without going at large into a discussion of the reasons for and against the jurisdiction, it is enough for the disposition of the point in this case to say that, upon a careful perusal of the opinions delivered by the supreme court which touch upon the question, it seems to me that the test established for determining the jurisdiction in admiralty, in a case of alleged maritime tort not on tide-water, is whether the place in which it was committed is upon the ‘navigable waters of the United States,’ and that an artificial water-way or canal opened by a state to public use, for purposes of commerce, and while in fact used as a highway of commerce between the states of the Union, and between foreign countries and the United States, is ‘navigable water of the United States’ within the meaning of that term as used to define and limit the jurisdiction of the admiralty courts.”

See also Manigault v. S. M. Ward & Co., 123 F. 707 (C.C.S.C.1903).

Applying the above well settled rules to the facts in the instant suit compels the conclusion, I think, that the privately owned, dead-end slip or canal involved here is not and cannot conceivably be a navigable waterway of the United States, in the sense that admiralty or maritime law can be applied.

I would hold that Louisiana tort law applies in this case, and that plaintiff is barred from recovery by its own contributory negligence. In my view the judgment of the trial court should be reversed, and judgment should be rendered rejecting plaintiff’s demands, at its costs.

For these reasons, I respectfully dissent.


author: CULPEPPER, Judge.

text:
    Mrs. Jewell TATOM et al., Plaintiffs and Appellants, v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY et al., Defendants and Appellees.
    No. 5131.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.
    Kely, Seaman & Ware by Richard N. Ware, Natchitoches, for plaintiffs and appellants.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Shreveport, for defendants and appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

Plaintiff, Mrs. Jewell Tatom, seeks damages for personal injuries sustained when she slipped and fell in the Brookshire Grocery Company Store in a shopping center in Natchitoches. From an adverse judgment, plaintiff appealed.

The issue is factual: Was the defendant store owner negligent in maintaining the aisle floors in a condition which was not reasonably safe for ordinary use by its customers ?

Mrs. Tatom, who was 78 years of age at the time, went to the store with her daughter, Mrs. Madeline Yanck, to purchase some beef. After a few minutes of discussion at the meat counter in the rear of the store, Mrs. Tatom left Mrs. Yanck and walked down an aisle between two long display counters, her purpose being to go to one of the check-out counters and pay for the meat. She walked around the end of the display counter and was headed toward the check-out station when she fell to the floor. The point where she fell is about three feet from the end of the display counter and about seven or eight feet from the check-out stand.

Mrs. Tatom’s contention is that the tile floor was waxed and polished to a dangerously slippery condition. She says she was walking normally, but her right foot slipped on the highly waxed floor, causing her to lose her balance and fall. Mrs. Yanck, who came from the meat counter on learning that her mother had fallen, testified that when she arrived she saw a piece of “matted, compressed dust” about 2\/2 by 3 inches in size, lying on the floor beside her mother, She called her mother’s attention to this piece of dust. They contend Mrs. Tatom may have stepped on this matted dust causing her shoe to slip on the waxed floor. But, of course, neither could testify Mrs. Tatom actually slipped on the piece of matted dust.

The witnesses for the defendant consisted of the manager and several employees or former employees of the store. They testified generally that the floor was not slippery, and they examined the area immediately after Mrs. Tatom fell and found no piece of matted dust nor any other condition or substance which could have caused Mrs. Tatom’s foot to slip. At least one of these witnesses stated that Mrs. Ta-tom was wearing high heeled leather soled shoes and that she was walking fast when she either lost her balance or slipped and fell to the floor. The shoes were produced at trial and the heels were measured and found to be two inches high.

The district judge correctly stated the applicable rule of law to be that the owner of a grocery store owes a duty to his customers to maintain the premises in a condition reasonably safe for use in a manner consistent with the purposes of the establishment. Sigler v. Mount Vernon Fire Insurance Company, La.App., 201 So.2d 656 (3rd Cir. 1967). Applying this rule to the present case, the district judge concluded plaintiff failed to prove by a preponderance of the evidence that the condition of the floor where Mrs. Tatom slipped was unreasonably hazardous, either because of being waxed improperly, or because of the presence of matted dust on the waxed floor. The record clearly contains sufficient evidence to reasonably support this factual conclusion of the trial judge. Canter v. Koehring Company, La., 283 So.2d 716 (S.Ct.1973).

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

Affirmed.


author: PATTERSON, Justice.

text:
    Joe H. SHANNON v. STATE of Mississippi.
    No. 48725.
    Supreme Court of Mississippi.
    Oct. 27, 1975.

      Hathorn & Hathorn, Louisville, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   PATTERSON, Justice.

Joe Shannon was convicted of murder by the Circuit Court of Winston County. He was sentenced to life in the state penitentiary and now appeals. We affirm.

The first assignment of error is that the trial court erred in not directing a verdict for the defendant at the conclusion of the state’s evidence, in not granting a peremptory instruction at the conclusion of all the evidence, and in holding that the verdict of the jury was not against the overwhelming weight of the evidence.

Five witnesses for the state, including the sheriff of the county, were present when the appellant shot and killed Bill Coward. They testified there was no struggle between the two preceding the shot fired by the appellant. It is true that four witnesses for the defense, including the appellant, testified there was a struggle between the two prior to the homicide. There was, therefore, a classic case of conflicting evidence to be resolved by a jury. The resolution of the conflict was unfavorable to the appellant, but there is no way we can state there was not sufficient evidence to withstand the motions for a directed verdict, peremptory instruction, or that the verdict was against the weight of the evidence. We opine, as we have many times before, that conflicts of evidence are properly left for the jury’s resolution. King v. State, 315 So.2d 925 (Miss.1975), and Murphree v. State, 228 So.2d 599 (Miss.1969).

The appellant next contends the trial court erred when it did not permit some locks of the appellant’s hair to be introduced into evidence. There was testimony by the defendant and some of his witnesses, but not his wife, that Coward approached the defendant as he was seated in an automobile and, as the aggressor, grasped the appellant’s hair, thereby pulling and beating his head against the automobile door, during the course of which some hair was pulled from the defendant’s head. This hair, according to the record, was later found in the appellant’s automobile by his sons.

The hair was sought to be admitted into evidence by the appellant’s wife to whom it had been given for safekeeping. If permitted in evidence, it would have been an exhibit relating to the testimony of some of the defense witnesses and to that limited extent perhaps corroborative of it. However, we are unable to discern any prejudice resulting from its exclusion since all of the testimony concerning the “hair pulling” was before the jury for its consideration. Its introduction would have added little, if any, weight to the evidence and was largely within the discretion of the trial judge [Carter v. State, 310 So.2d 271 (Miss.1975)] and under the circumstances we do not find an abuse of discretion, if there be such, amounting to prejudicial error, requiring reversal.

It is next argued there was error in admitting the testimony of a prior threat of the defendant directed to the decedent’s son. In Thompson v. State, 84 Miss. 758, 36 So. 389 (1904), it was stated that the details of previous difficulties should not be shown in evidence. However, the details of the threat made by Joe Shannon toward the decedent’s son were to a great extent the product of the cross and direct examinations by the defense attorney. Moreover, in Self v. State, 178 Miss. 560, 174 So. 44 (1937), we stated:

Under such circumstances, we think the evidence tended to shed light on the issue as to who was the aggressor in this difficulty, and we think the evidence was admissible as showing the appellant’s malicious purpose, even if we assume that the threats and statements were general, and, to some extent, impersonal, and that such evidence was competent.
178 Miss, at 568, 174 So. at 46.

Similarly, the threat in this case was not remote since it occurred on the day of the homicide and had probative value, we think, to direct light on the issue as to who was the aggressor in the difficulty. See Washington v. State, 307 So.2d 430 (Miss. 1975). We conclude the trial court properly permitted this testimony into evidence.

The next contention of the appellant is that the court erred in granting all of the instructions requested by the state except the formal ones and in the refusal of certain instructions requested by the defendant. The primary objection, however, is focused upon the want of a specific instruction relating to manslaughter. A review of the instructions reveals that one was obtained by the state defining both murder and manslaughter. Additionally, several instructions were granted the defendant upon the issue of self-defense. When these instructions are considered together, as we have done, we are unable to say that there was prejudicial error emanating from the granting of the instructions requested by the state or the refusal of some of the defendant’s instructions. We conclude this assignment is without substantial merit since we are unable to say that the appellant was prejudiced by the instructions when they are considered in their entirety.

We have studied all other assignments of error, reviewed the record in detail, and are of the opinion the defendant received a trial in accord with due process of law and that the evidence supports the conviction. We therefore affirm.

Affirmed.

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


text:
    Reggie LITTLE v. Terry HARMON.
    No. 48523.
    Supreme Court of Mississippi.
    Oct. 27, 1975.
    James H. Mathis, Corinth, for appellant.
    Sharp & Fisher, Corinth, for appellee.
    Before RODGERS, P. J., and PATTERSON and SUGG, JJ.
   Affirmed.


text:
    Johnnie ALEXANDER v. DELTAWOOD, INC., et al.
    No. 48396.
    Supreme Court of Mississippi.
    Oct. 27, 1975.
    John H. Downey, Harlon H. Varnado, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Donald V. Burch, Satterfield, Shell, Williams & Buford, Cary E. Bufkin, Jackson, for appellees.
    Before GILLESPIE, C. J, RODGERS, P. J., and ROBERTSON, J.
   Affirmed.


text:
    Wanda L. THOMPSON et al. v. CITY OF CORINTH.
    No. 48393.
    Supreme Court of Mississippi.
    Oct. 27, 1975.
    Smith, Downs, Coleman & Ross, Wendell H. Trapp, Jr., Corinth, for appellants.
    W. C. Sweat, Jr., Corinth, for appellee.
    Before GILLESPIE, C. J., RODGERS, P. J., and ROBERTSON, J.
   Affirmed.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Bobby Joe WHITTINGTON.
    No. 48340.
    Supreme Court of Mississippi.
    Oct. 27, 1975.
    Merrimen M. Watkins, Crystal Springs, for appellant.
    Armstrong & Hoffman, John T. Armstrong, Jr., Hazlehurst, for appellee.
    Before PATTERSON, INZER and WALKER, JJ.
   Affirmed.


text:
    James E. JOHNSON v. U. S. BLANKENSHIP.
    No. 48391.
    Supreme Court of Mississippi.
    Oct. 27, 1975.
    Brown & Perkins, Macon, for appellant.
    Tubb, Stevens & Morrison, West Point, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and SUGG, JJ.
   Affirmed.


text:
    FORD MOTOR COMPANY v. Robert L. RAINEY, Jr.
    No. 48380.
    Supreme Court of Mississippi.
    Oct. 27, 1975.
    Watkins & Eager, Hassell H. Whit-worth, Thomas M. Murphree, Jr., Jackson, for appellant.
    Farese, Farese, Jones & Farese, Ash-land, Robert W. Elliott, Ripley, for appel-lee.
    Before INZER, WALKER and BROOM, JJ.
   Affirmed.


text:
    CANAL INSURANCE COMPANY v. INSURANCE COMPANY OF NORTH AMERICA.
    No. 48295.
    Supreme Court of Mississippi.
    Oct. 20, 1975.
    Palmer, Stewart & Gaines, Gulfport, for appellant.
    Eaton, Cottrell, Galloway & Lang, Gulf-port, for appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   Affirmed.


author: WALKER, Justice:

text:
    MISSISSIPPI STATE BOARD OF PHYSICAL THERAPY v. Earnest L. HARRINGTON.
    No. 48378.
    Supreme Court of Mississippi.
    Oct. 20, 1975.
    Butler, Snow, O’Mara, Stevens & Can-nada, Lawrence J. Franck, Jackson, for appellant.
    Dudley W. Conner, Hattiesburg, for ap-pellee.
    Before PATTERSON, INZER and WALKER, JJ.
   WALKER, Justice:

This is an appeal from the Circuit Court of Forrest County, Mississippi, which reversed an order of the Mississippi State Board of Physical Therapy in denying a license to the appellee as provided under the “grandfather clause” of Mississippi Code Annotated section 73-23-13 (Supp.1974).

A discussion of the issues raised by the appellant would not add to the jurisprudence of the state. However, there is a patent error in the order of the circuit court which must be corrected.

The order of the circuit court provides that:

. the Mississippi State Board of Physical Therapy issue a license to Earnest L. Harrington without an examination, as provided under the “grandfather clause” of Section 73-23-13 of the Mississippi Code of 1972, as amended, as a corrective therapist; . (Emphasis added).

Section 73-23-13 only provides for the licensing of physical therapists and not corrective therapists; therefore, the order of the circuit court is hereby corrected to provide that the Mississippi State Board of Physical Therapy shall issue a license to appellee as a physical therapist.

The judgment of the lower court is affirmed as corrected.

Affirmed as corrected.

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

      . Mississippi Supreme Court Rule 43.


author: DOMENGEAUX, Judge. WATSON, Judge

text:
    Willis YOUNG, Plaintiff-Appellant, v. DEO FRUGE CONTRACTOR, INC., Defendant-Appellee.
    No. 5128.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.
    Grenese R. Jackson, Jennings, for plaintiff-appellant.
    Clanton & Johnson by John W. Johnson, Eunice, for defendant-appellee.
    Before DOMENGEAUX, WATSON and HALL, JJ.
   DOMENGEAUX, Judge.

This action arises out of a contract for the construction of a platform which was to extend into the Whiskey Chitto River in Allen Parish, Louisiana, its main purpose being to sustain and support an irrigation pump and engine. Plaintiff- — Willis Young filed suit for damages against defendant— Deo Fruge Contractor, Inc., for the latter’s alleged breach of the implied warranty of performing the abovementioned work in a good workmanlike manner and/or negligent design of said platform resulting in its failure to perform the purposes for which it was constructed.

After a trial on the merits, the District Judge denied plaintiff’s claim at his costs and rendered judgment in favor of the defendant contractor. This matter is not before us on plaintiff's devolutive appeal.

Plaintiff is in the business of rice farming and irrigation, and furnished water for some 10,000 acres of rice lands in Allen Parish, which (prior to 1973) were irrigated from his pumping plant situated on the Whiskey Chitto River in said parish. The irrigation water reached the various acreages through a system of irrigation canals, also owned and operated by plaintiff. From 1952 to 1972 the pumping plant was situated on a wooden platform, extending into the river, The platform was of a trestle or bridge type construction and was approximately 175 feet in length from the pump intake portion in the river to a reservoir. The water was pumped from the river to the reservoir, and in turn distributed through the canal system.

Because of the vestiges of age and use the plaintiff decided that the old platform should be either repaired, reconstructed, or replaced. In that connection he contacted Deo Fruge, a road and bridge contractor and sole owner of defendant corporation. Consequent to their discussions plaintiff and defendant entered into the following written contract:

“June 30, 1972
D. FRUGE CONTR., INC. CONTRACT WITH WILLIS YOUNG
Contractor will build one 32 ft. X 32 ft. platform on pilings, buckhead (sic) with 14 ft. wings and fill with dirt as agreed. Will furnish all labor, material and welding for a 30 inch discharge pipe, cooling system and hookup one engine and one pump with Mr. Young’s own engine, pump, gearhead, gas line, cooling coil, and upright tank.
The above described job is for the cash price of $20,000.00 payable on date of completion. Completion date is to be 20 days from July 1, 1972 with the exception of an act of God.
D. FRUGE CONTRACTOR, INC.
By: /s/ Clyde Fruge
Sworn and subscribed before me this 7 day of July, 1972.
/s/ J. E. Vizinat_
NOTARY PUBLIC
/s/ Willis Young
Willis Young
/s/ Paul Bazin_
Witness
/s/ Joseph D. Johnson Witness

No plans or specifications were prepared on this project. Fruge acknowledged that he and another employee of defendant made the determinations as to the length of the piling, the depth that they were driven into the bed of the river, the size of the bulkhead and the depth that it would penetrate, if any, below the bed of the river, as well as all other details in connection with the bracing of the installation.

The new platform was, as agreed, subsequently constructed about 75 yards south of the . old platform at the location of a high bluff, presumably to minimize the effects of floods or overflow of the river which occurred periodically. The new construction differed from the old platform in that it was of a ramp type, dirt filled foundation with bulkhead, pilings, supports, braces, etc. The evidence indicates that the new platform with its ramp construction was more economical to build than one of the old trestle type.

Defendant completed the platform in December, 1972. Upon testing the pump system, however, a leak was discovered in a discharge pipe which was immediately and satisfactorily repaired by defendant, and plaintiff accepted the finished product as being a good job. The machinery was not operated again until the following pumping season in the early spring of 1973.

In regard to the alleged construction defects, plaintiff and others who gave testimony on his behalf indicated essentially the following: About two weeks after the pumping operations were commenced in the early spring of 1973, a “hole” in the dirt ramp adjacent to the wooden bulkhead was observed. Subsequently, as the pumping continued, the hole became larger and in about a three week period the full 32 feet width of the dirt ramp had washed out. As a result the plaintiff had his son move dirt with a tractor blade from the surrounding area into the hole so as to be able to walk from the bank to the platform. Continued pumping caused the hole to wash out again. Plaintiff then became fearful that all of the sand and dirt inside the bulkhead would erode and be suctioned into the intake pipe and into the pump. In addition he felt that too much pressure was being placed on the bulkhead structure. As a result he employed another contractor, Wilburn Landry, to remove the dirt previously placed against the bulkhead, and provided access to the platform with a board extending from the bank to the platform. Plaintiff thereafter continued the pumping operation, but later noticed that the bulkhead started “kicking into the river”. The first row of pilings broke shortly thereafter with the next and adjacent rows subsequently collapsing, until the entire platform (except the portion nearest the center of the stream on which the pump and engine were situated) had completely given way. Plaintiff was later forced to remove his irrigation pump and engine from the collapsing structure. Excellent photographs introduced into evidence depict graphically the end result of the collapse.

Notwithstanding the debilitating effect of the structure, plaintiff managed to complete his pumping operations for the 1973 pumping season.

Interestingly enough, throughout the deteriorating episodes described above, the plaintiff did not contact the defendant nor anyone expert in the construction field concerning the difficulties. When the first hole appeared plaintiff did not inquire as to the cause of it from defendant. Instead, he took it upon himself to push dirt into the hole after it was allowed to become so large that it consumed the entire width of the bulkhead. As aforementioned, he later changed his mind and had the dirt removed.

Plaintiff’s reason for not having the difficulty attended to properly was allegedly because of his pumping operations and the urgency of furnishing water to the various rice acreages, so much so that he didn’t have time to fix it.

Plaintiff contends that the original hole and subsequent enlargement thereof was caused by faulty construction which permitted seepages to undermine the dirt ramp. He further alleges that the collapse was specifically due to defendant’s failure to bury to a sufficient depth the support pilings which subsequently were caused to break and bend either by the floodwaters of the river and/or by erosion under the bulkhead wall caused by the pump sucking sand from underneath the structure and adjacent bank.

The defendant, on the other hand, contends that the collapse was due to plaintiff’s own neglect combined with unusually high tides. Specifically it is argued that the dirt seepage occurred from the top down, due to the fact that during the original construction the plaintiff caused defendant’s dozer operator to cut the shoulder of the ramp in order to make it level with the reservoir, rather than on an incline. Defendant argues that this action in turn allowed water to flow on the ramp and subsequently cause erosion. Defendant testified that he warned the plaintiff of this, but that plaintiff insisted on doing it his way. In addition it was pointed out that plaintiff allowed excessive spillage from his cooling system to fall on the dirt ramp.

Plaintiff contends on this appeal (and apparently did so at trial) that under the principles set forth in Joyner v. Aetna Casualty & Surety Company, 259 La. 660, 251 So.2d 166 (1971) an inference of faulty workmanship and/or materials arose under the facts of this case and the burden of proof was therefore upon the defendant to establish that the defects and/or damages resulted from causes other than faulty workmanship and/or materials.

Joyner held:

“An inference of faulty workmanship or material arises when construction designed as a permanent installation fails shortly after being put into use. * * * The effect of the inference is to place upon the contractor the burden of establishing that the soon-appearing defect in the work and the resultant damages did not result from his faulty workmanship or materials but instead from other cause.”

We do not quarrel with the foregoing legal principle but agree with the trial judge’s findings that it is inapplicable in the instant case. As pointed out by the Supreme Court in Joyner on “Application for Rehearing”, 251 So.2d 172:

“This holding was not intended to modify the requirement that before this inference of fault arises, the party claiming injury must establish by a preponderance of the evidence that after the construction left the control of the contractor upon its delivery to the owner, no fault independent of the contractor’s workmanship or material (such as the injured party’s own fault) caused the failure. The party injured must also, of course, prove by such preponderance that his damages were caused by reason of the failure of construction.”

In this regard the trial judge concluded essentially that plaintiff failed to establish by a preponderance of the evidence that the defendant-contractor’s faulty workmanship and materials caused the structure’s collapse, as well as the fact that he (plaintiff) was free of independent fault in causing the failure. In reaching this conclusion he made the following factual findings. First, the pilings which supported the structure were sufficiently embedded and actually snapped or splintered above the ground rather than being displaced. The cause of the collapse was tremendous pressure against the bulkhead, the specific source of which, however, he could not determine. If undermining of the river bank or bulkhead was present, as alleged by plaintiff, it was caused by erosion (no evidence of undermining was found elsewhere in the vicinity along the river line) due to plaintiff’s own improper handling of the dirt and sand embankment rather than the suction pump. He further pointed to possible causes as rising water resulting in erosion or buildup of discharge sand against the bulkhead.

Under the peculiar facts of this case we cannot say the trial judge erred in not applying the presumption of Joyner against the defendant. Neither can we say he erred in his factual findings to the effect that plaintiff failed to establish by a preponderance of the evidence, once the construction left the control of the defendant, that he (plaintiff) was free of independent fault in causing the failure, nor that his damages were caused by reason of faulty construction. Accordingly, plaintiff simply failed to prove his case.

For these reasons we affirm the decision of the trial court. Costs are assessed against plaintiff-appellant.

Affirmed.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge

(dissenting).

I respectfully dissent, being of the opinion that plaintiff proved that the defective design and construction (all by defendant) caused the failure of the platform. In my opinion the trial court erred manifestly in concluding that plaintiff caused the damage or is estopped in some way from recovery. See Joyner v. Aetna Casualty & Surety Company, 259 La. 660, 251 So.2d 166 (1971) and Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975).

      . Tlie time restrictions of the contract were waived by the parties and the defendant was permitted to construct the installations at any time following the pumping season of 1972, provided that the work was completed prior to the pumping season in the early spring of 1973.

      . Apparently plaintiff had some physical disability and wished to eliminate the necessity in the future of disembarking from his vehicle to walk to the platform.