text:
    Mary Alice GUILBEAU et al., Plaintiffs-Appellants-Relators, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees-Respondents.
    No. 57498, 57511 and 57520.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      Joseph J. Piccione, Lafayette, for plaintiff-applicant in No. 57498 and for plaintiff-respondent in Nos. 57511 and 57520.
    Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-applicants in No. 57511 and for defendants-respondents in Nos. 57498 and 57520.
    David W. Robinson, Watson, Blanche, Wilson & Posner, Baton Rouge, for Continental Ins. Co., defendant-applicant in No. 57520 and defendant-respondent in Nos. 57498 and 57511.
    Christopher E. Lawler, Porteous, Toleda-no, Hainkel & Johnson, New Orleans, for defendant-respondent in Nos. 57498, 57511 and 57520.
   TATE, Justice.

The issues of this case revolve about the tort liability, if any, for the death of an employee at work. They also concern the potential coverage of various liability insurance policies for alleged wrongful conduct on the work scene.

The widow of John Albert Guilbeau brings suit for his wrongful death. Guil-beau was killed while at work on a highway construction job. A truck backed into him. The court of appeal affirmed the dismissal of this tort suit, holding that the plaintiff widow’s exclusive remedy was for workmen’s compensation. 324 So.2d 571 (La. App. 1st Cir. 1976).

Issues

The court of appeal held that Guilbeau was killed while in the employment of a joint venture composed of two corporations, Caldwell and Wilson. The exclusive remedy of his widow, it held, was for workmen’s compensation, both as against the joint venture (partnership) itself and also as against the two joint venturers (Caldwell and Wilson). It so held despite allegations that Guilbeau, as an employee of Caldwell, was killed through the negligence of employees of Wilson, the other joint venturer (partner).

We granted certiorari, 326 So.2d 379 (La. 1976), primarily because we thought this holding might conflict with the principles announced by Cooley v. Slocum, 326 So.2d 491 (La.1976). There, we held that, since a partnership is a separate entity under Louisiana law, a partner is individually liable for his own negligence to an employee of the partnership.

For the reasons to be stated (see I below), however, we do not reach this issue under the present facts. Nevertheless, by reason of the unrestricted grant of certiorari, the whole case is before us, and we must therefore decide other issues of the litigation (primarily, the negligence of the truck driver, see II below, and the coverage of certain insurance policies, see III below), which properly were preserved by the plaintiff for our review. La.Const. of 1974, Article 5, Section 5(F); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971).

I.

We do not reach the Cooley v. Slocum issue because, on review of the record, we find no negligence of any employee of either Caldwell or Wilson caused Guilbeau’s death.

Guilbeau was struck from the back by a backing truck while he was walking on the shoulder of the highway. As we shall note later (II), the driver of this truck was negligent, but he was not an employee of either Caldwell or Wilson.

The plaintiff’s evidence charging Caldwell and Wilson with negligence is principally based upon the alleged failure of Billy Works, the general supervisor of the construction job, to provide adequate safety features and instructions for the crews working at the site. Billy Works was a supervisory employee furnished by Caldwell to the joint venture, allegedly subject also to joint control by Wilson.

The record reflects no arguable basis for negligent supervision on the part of Works, except for one possibility:

The trucks which dumped the asphalt mix were required to back along the shoulder from a turnaround to an asphalt spreader some 1500 feet west of the turnaround. While the driver was so backing his truck there was a cone-shaped blind spot to his immediate rear.

The contention is made that Works was negligent in not appreciating the hazard to persons walking along the shoulder to the rear of the backing truck, and in not employing a flagman to guide the truck as it backed this comparatively long stretch of shoulder.

Actionable negligence results from the creation or maintenance of an unreasonable risk of injury to others. Smolinski v. Taulli, La., 276 So.2d 286 and authorities there cited. In determining whether the risk is unreasonable, not only the seriousness of the harm that may be caused is relevant, Allien v. Louisiana Power & Light Co., 202 So.2d 704 (La.App. 3d Cir. 1967), certiorari denied, 251 La. 392, 204 So.2d 574 (1967), but also the likelihood that harm may be caused, Goff v. Garlino, 181 So.2d 426 (La.1965), certiorari denied, 248 La. 1033, 183 So.2d 653 (1966). See also: Restatement of Torts, Second, Sections 291-293 (1965).

The evidence indicates that it is not customary in highway construction to have flagmen stationed for the purpose of directing the truck as it backs up under the circumstances presented. While customary practices may be relevant in determining negligence, they are not conclusive or controlling in the judicial determination of whether unreasonable risk has resulted from the conduct in question. Larned v. Wallace, 146 So.2d 434 (La.App. 3d Cir. 1962), certiorari denied (La.1963).

Nevertheless, the evidence indicates that the chances of injury to others are relatively slight in such backing operations, because of the limited nature of the blind spot and because ordinarily the backing truckdriver will observe those in the path of the truck in time to stop. The comparatively slight likelihood of injury resulting from the lack of a flagman, justifies us in affirming the trial court’s holding that Works or other supervisory employees of Caldwell and Wilson were not negligent in failing to supply one, Miller v. Southern Farm Bureau Cas. Ins. Co., 189 So.2d 463 (La.App. 3d Cir. 1966), certiorari denied 249 La. 750, 190 So.2d 912 (1966), Stanley v. Missouri Pacific Railroad Company, 179 So.2d 490 (La.App. 3d Cir. 1965), in accordance with the usual practice of the industry.

Therefore, neither Caldwell nor Wilson (nor their liability insurers, insofar as sued on such ground) can be held liable because of any negligent conduct of the supervisory employees on the construction contract in which Guilbeau was accidentally killed.

n.

The grant of certiorari has also brought up for review the issue of whether the truckdriver was negligent in backing into Guilbeau, and whether Guilbeau’s contributory negligence barred his widow’s recovery.

The evidence proves the truckdriver to have been negligent.

He was backing his heavy dumptruck westward on the shoulder from the turnaround some 1500 feet east of the point at which the decedent was struck and killed. The uncontradicted evidence shows that, immediately following the accident, the driver admitted that he had been looking at his left-rear-view mirror only, watching for only some vehicles parked in the blocked-off construction lane of the highway to the immediate left (north) of his truck. The decedent was walking on the right (south) edge of the shoulder and was struck by the right rear of the truck.

The truckdriver was negligent in failing to maintain • adequate lookout for people who might be in his rearward path. The evidence shows that not only the plaintiff but also other workmen on the job used the shoulder in walking from place to place within the construction site.

Furthermore, while the truckdriver was backing from the turnaround area (which was 1500 feet east of the point of impact), Guilbeau had entered and crossed the shoulder (having parked a pickup truck in the blocked-off highway lane to its immediate north) and was then walking westward on its south edge some 159 feet before he was struck from the rear. (One of the decedent’s co-workers saw the truck backing some distance behind the plaintiff as the latter, facing away from the truck, walked back to the spreader; but the co-worker turned to other tasks, not anticipating any danger.) No explanation is shown for the driver’s failure to observe Guilbeau on the shoulder, as the driver backed towards him at a rate of speed faster than the plaintiff’s walk.

The cone-shaped blind spot to the immediate rear of the truck was from the width of the truck at the back, tapering to a point 121 feet to the rear. Even if Guilbeau had been walking in the dead-center of the truck’s rear, the truckdriver could have observed him from either mirror (had he been watching the stretch in back of him instead of the parked vehicles to his left) up to a point 121 feet from the point of impact. Actually, Guilbeau was walking on the right (south) edge of the shoulder and was observable from the rear-facing right-view mirror until immediately before the truck struck him.

The driver of the dump truck was negligent in heedlessly backing his truck without keeping a proper lookout or ascertaining that his path was clear. See Reeves v. Louisiana and Arkansas Railway Co., 282 So.2d 503 (La.1973); Eckel v. C. T. Patterson Co., Inc., 279 So.2d 210 (La.App. 4th Cir. 1973); Davide v. Jackson Paving Co., 238 So.2d 359 (La.App. 3d Cir. 1970); Ratcliff v. Ins. Co. of State of Pa., 151 So.2d 90 (La. App. 1st Cir. 1963). See also Roy v. United Gas Corp., 163 So.2d 587, 591-92 (La.App. 3d Cir. 1964).

Despite such negligence, the trial court held that Guilbeau’s own contributory negligence barred his widow’s recovery. The contributory negligence consisted of exposing himself to the risk of the trucks periodically backing down the shoulder on which he walked, without observation to his rear.

Assuming this to be so, the trial court failed to consider that the backing truckdriver had the last clear chance to avoid the accident. The slightest observation on his part would have disclosed to him the pedestrian in the backing path of his heavy dumptruck, facing away from the truck and obviously unaware of its approach. At the distance by which an ordinarily prudent lookout would have disclosed the pedestrian, the truckdriver could have easily stopped the truck or sounded his horn to awaken the pedestrian to his danger and so have avoided the accident and death.

Under Louisiana jurisprudence, an operator of a vehicle or heavy equipment who observes, or who should by the exercise of reasonable care have observed, a pedestrian in a position of peril of which the latter is apparently unaware, is responsible for injuries caused when his vehicle strikes the pedestrian in his path, despite any contributory negligence on the part of the latter; providing that, after the duty to make such observation arose, the operator could reasonably have avoided the accident.

See: Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973); Belshe v. Gant, 235 La. 17, 102 So.2d 477 (1958); Jackson v. Cook, 189 La. 860, 181 So. 195 (1938); Rottman v. Beverly, 183 La. 947, 165 So. 153 (1936); Comment, 27 La.L. Rev. 269 (1967). See also: Leake v. Prudhomme Truck Tank Service, 260 La. 1071, 258 So.2d 358 (1972); Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (1968).

Accordingly, the truckdriver and those responsible for his negligence (see III) are liable to the plaintiff widow.

III.

We now consider which, if any, of the defendants before us are liable for the negligence of the truckdriver:

Defendants J. B. Higgins and his insurer Cotton Belt

The driver was an employee of J. B. Higgins d/b/a Higgins Trucking Company. The large dumptruck and its driver had been leased to the joint venture composed of Caldwell and Wilson, for purposes of hauling asphalt-mix from a mixing plant to the work-site where the accident occurred.

Higgins was made defendant, but no pleadings were filed on his behalf, nor was any default taken against him. (Apparently, as in the case of some other named defendants, no service was actually made upon him.) Consequently, no judgment can be entered against him.

We therefore do not review the intermediate court’s conclusion that J. B. Higgins, the negligent driver’s employer, was relieved of liability for his own employee’s torts, because the employee had been “borrowed” by the joint venture.

We granted certiorari, however, partially because we entertained doubt whether this conclusion could be correct, since both lending general employer (with power to discharge or forecall or substitute) and borrowing-special employer (with power of direction at the scene) shared the power to control the employee, who after all is working for the special employer in the performance of his general employment for which he is employed and paid by his general employer. The Louisiana jurisprudence until now has not been concerned with the common liability of both general and special employer to third persons injured through the negligence of their common employee. But cf. Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895, 906-07 (1958). The decisions have mostly been concerned with the tort liability of either a general or of a special employer alone made defendant, or with determining the liability inter se of the one most concerned, La.Civil Code art. 2106, and therefore as between them primarily liable for the injury.

However, Higgins’ liability insurer, the Cotton Belt Insurance Company was served and is a party to this suit. Under its omnibus clause, which insures anyone using the truck with the consent of the named insured, the plaintiff is entitled to judgment against Cotton Belt for herself and her children in the amount of ten thousand dollars, the policy limits for injury to or death of one person.

As will be noted, however, the case must be remanded for determination of whether other insurers are also liable with Cotton Belt, and for fixing the claims in intervention filed by the compensation insurers under La.R.S. 23:1103, as well as to apportion the excess, if any, between the claims of the widow and of her children.

Defendants Caldwell and Wilson

The defendants Caldwell and Wilson are not liable in tort for the driver’s negligence:

(1) If as the court of appeal held, Higgins and the truckdriver were furnishing contractual services to the joint venture, then the joint venture was responsible for the truckdriver’s acts in compensation only, to the exclusion of tort, see La.R.S. 23:1032; for by similar factual interpretation Guilbeau’s employing unit was likewise the joint venture, not Caldwell or Wilson.

(2) If on the other hand (as the plaintiff at one time contended) Higgins and its employee truckdriver were independent contractors performing part of Wilson’s trade, business, or occupation, then likewise Guilbeau’s widow’s exclusive remedy against Wilson was for compensation. La.R.S. 23:1032, 1061.

(3) No theory is advanced by which Gaid-well would be liable under respondeat superior for the tort of the truckdriver.

Liability of insurers of Caldwell and Wilson

In view of this last holding, and that in I above, Liberty Mutual, as insurer of Wilson, is not liable for the negligence of Wilson or of any of its agents under the comprehensive general liability policy introduced in evidence as Liberty Mutual Exhibit # 4. The policy, further, expressly excludes any liability arising out of the operation of use of any motor vehicle owned or rented or loaned to Wilson. See Exclusion (b).

However, a different issue is reached with regard to the Comprehensive Automobile Liability policies issued by Liberty Mutual to Wilson and by Continental to Caldwell, respectively. Exhibits P-3 and P-25.

Each of these policies defines a “hired automobile” as “an automobile not owned by the named insured which is used under contract in behalf of, or loaned to the named insured * * *.” (Italics ours.) The policy term is distinguished from the policy definition of a “non-owned automobile”, which is defined as neither an owned nor a hired automobile.

Both policies contain exclusion clauses stating that they do not apply to non-owned vehicles (only) used in joint ventures of which the named insured' (Caldwell and Wilson, respectively) are members. This seems to indicate that policy coverage may apply when hired automobiles are used in joint ventures.

In describing the persons insured, each policy states that it insures any person using a hired automobile with the permission of the named insured. See “Persons Insured”, Clause (c). This definition appears to be broad enough to cover liability for the present truckdriver’s operation of the dumptruck involved in the accident, assuming that the truck thus furnished the joint venture (of which Wilson and Caldwell are members) was a “hired automobile” furnished to the joint venture and thus “used in behalf of” the respective named insureds.

Further, considering that the decedent Guilbeau was hired by the joint venture (as the court of appeal held) or by Caldwell (as his widow contends), it is apparent that a serious doubt exists as to whether Guilbeau could be a “fellow employee” of the truck-driver (employed by and paid by Higgins, not by the joint venture or by Caldwell) for purposes of an exclusion clause in each policy which provides: ■ “None of the following is an insured: (i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment * * (Italics ours.) Cf., Pullen v. Employers Liability Assurance Corp., 230 La. 867, 89 So.2d 373 (1956).

The court of appeal did not reach consideration of whether these policies covered the negligent operation of the truckdriver. The briefing of all parties concentrated on other issues than this one. Under these circumstances, we determine it to be the preferable procedure to remand this case to the court of appeal for determination of this issue, not briefed before us, and for decision as well of the subsidiary issues that may remain (quantum and the excess coverage clauses of these policies and Cotton Belt’s) upon resolution of it.

Decree

For the foregoing reasons, we affirm the judgment of the court of appeal dismissing the plaintiff’s suit against E. A. Caldwell Contractor, Inc., and Gaines P. Wilson, Inc.; but we reverse the judgment insofar as it dismissed the plaintiff’s suit against the Cotton Belt Insurance Company, Inc., the Continental Insurance Company, and the Liberty Mutual Insurance Company, and we remand this case to the court of appeal for it to decide the case consistent jvith the views above-expressed, which will, inter alia, require it to determine: (1) the liability, if any, of Continental and Liberty Mutual under their comprehensive general automobile liability policies for the negligence of the defendant truckdriver; (2) the quantum of the total award due the plaintiff, if there be such coverage; (3) the apportionment between widow and children of the judgment in the amount of ten thousand dollars to be entered against Cotton Belt, after determining the liability of Continental and Liberty Mutual (including whether any of the three policies is excess insurance as to any of the others), while (4) fixing the amount due from the ultimate award to the intervenors, Continental and Liberty Mutual, for workmen’s compensation payments made to the widow as insurers of the members of the joint venture.

All costs tó be assessed upon final determination of these proceedings.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

SUMMERS, J., dissents for the reasons assigned by the Court of Appeal. See, La. App., 324 So.2d 571.

      . Although subpoenaed, the driver himself did not appear at the trial.

      . Some of the discovery statements, not introduced into evidence, show the turnaround to be only 600 feet east of the point of collision. The 1500 foot distance is derived from the testimony of the investigating police officer, not seriously questioned as to his measurement. Under either distance, our result would be the same.

      . See: Annotation, Lease — Machine and Operator-Liability, 17 A.L.R.2d 1388 (196 ); Restatement of Agency, Second, Section 226 and Comments (1958); Seavey, Handbook of the Law of Agency, Section 86 (1954); 53 Am. Jur.2d “Master and Servant, Section 415; 57 C.J.S. Master and Servant § 566.


source: Caselaw Access Project

author: TATE, Justice. SANDERS, Chief Justice

license: Public Domain

text:
    Donald G. JONES and Gloria Jones, Individually and as the natural tutors of their minor son, Donald G. Jones, Jr., Plaintiffs-Relators, v. CITY OF KENNER et al., Defendants-Respondents.
    No. 57589.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      Jerome M. Volk, Jr., Windhorst, Heisler, De Laup & Wysocki, New Orleans, for plaintiff s-r elator s.
    Francis G. Weller, Deutsch, Kerrigan & Stiles, New Orleans, for defendants-respondents.
   TATE, Justice.

The issue here is whether a plaintiff in a damage suit against a political subdivision and its liability insurer has the right to trial by jury. The district court ruled that the suit was triable by the judge alone against both defendants.

We granted certiorari, 329 So.2d 457 (1976), primarily (I) to determine whether the trial court’s decision preventing jury trial against the liability insurer was in conflict with our decision in Champagne v. American Southern Insurance Company, 295 So.2d 437 (1974). Also at issue (II) is whether La.R.S. 13:5105 (1975) offends the Louisiana Constitution of 1974 by depriving litigants of a jury trial in suits against public bodies.

I

La.R.S. 13:5105 (as amended in 1975) provides: “No suit against the state or a state agency or political subdivision shall be tried by a jury.” (Italics ours.) Initially, we note that the defendant municipality, the City of Kenner, is a political subdivision within the meaning of this statute and of our state constitution. See La.Constitution of 1974, Article 6, Section 44(2), (3).

In Champagne v. American Southern Insurance Company, 295 So.2d 437 (La.1974), we held that, considering the scheme of our statutory and constitutional law, a civil litigant was not to be deprived of the important right of jury trial except by express legislative provision.

Our legislature has provided for the right of jury trial in all civil cases, with only express exceptions. La.C.Civ.P. arts. 1731-33. The only exception here applicable is that exempting a “political subdivision” from jury trial. See La.R.S. 13:5105 and La.C.Civ.P. art. 1733(5) (“A trial by jury shall not be available in: . . . (5) All cases where a jury trial is specifically denied by law.”)

The statute expressly declares that a jury trial is not available against the political subdivision (the City of Kenner), but it does not extend this exemption from jury trial to the public body’s liability insurer. Therefore, as in Champagne, we hold that the plaintiffs cannot be deprived of their jury trial against such non-governmental defendant because a governmental defendant is joined as a party, despite any identity or substantial similarity of the issues against both.

In Champagne, we further noted that under La.C.Civ.P. art. 1735, there is to be one trial, with the jury deciding issues as to the non-governmental defendant and the judge as to the governmental defendant. The decision likewise notes the procedural controls available to prevent disparity of result in this combined single trial, the practice in the federal courts in administering the source provisions of Louisiana’s code articles relating to jury trial. See also Watson v. Hartford Accident & Indemnity Company, 214 So.2d 395 (La.App. 3d Cir. 1968).

Accordingly, the trial court erred in denying the plaintiffs their right to a jury trial against the liability insurer of the defendant municipality.

II

The plaintiffs further argue that La. R.S. 13:5105 (1975) has been legislatively overruled by adoption of the Louisiana Constitution of 1974, which was effective January 1, 1975. They also contend that the statutory denial of the jury trial is inconsistent with the provisions of this constitution recognizing the abolition of governmental immunity against tort suits by injured persons. See Article 12, Section 10.

The former (legislative-overruling) argument is directed against the predecessor statute. La.R.S. 13:5101-05 (1960). Whatever merit there may have been to that argument, is baseless as to the present statute. The latter was enacted in 1975 prior to the present suit, and it is applicable in denying a jury trial in “any suit” against a public body such as here involved. La.R.S. 13:5101 (1975), also La.R.S. 13:5105 (1975).

In contending that the present statute is inconsistent with the Louisiana constitution’s abrogation of governmental immunity, the plaintiffs solely rely upon the constitutional provision to this effect. La.Const. of 1974, Art. 12, Section 10. Subsection (C) of that article specifically authorizes the legislature “to provide a procedure” for suits against public bodies. On the basis of the sole argument urged to us, we are unable to hold that the procedural authorization of non-jury trial offends Article 12, Section 10, of our 1974 constitution.

Accordingly, the trial court correctly held that the defendant City of Kenner and its agency (see footnote 1) may properly claim exemption from jury trial.

Decree

For the foregoing reasons, therefore, we set aside the district court order insofar as it denied the plaintiffs a jury trial against the defendant liability insurer. In other respects, it is reinstated, as thus modified. The defendant insurer is cast with the costs of application to the court of appeal and to this court; all other costs to await final termination of these proceedings.

DISTRICT COURT ORDER MODIFIED, INSOFAR AS IT DENIED A JURY TRIAL AGAINST THE DEFENDANT INSURER.

SANDERS, C. J., dissents with written reasons.

SUMMERS, J., dissents for the reasons assigned by the Court of Appeal.

SANDERS, Chief Justice

(dissenting).

The issue here is whether a plaintiff in a damage suit against a political subdivision and its liability insurer has the right to trial by jury as the liability insurer. The district court ruled that the suit was triable by the judge alone. The majority reverses, holding that the liability of the insurer is to be determined by a jury, though that of the' insured political subdivision is to be determined by the judge. I disagree.

LSA-R.S. 13:5105, the controlling statute, provides:

“No suit against the state or a state agency or political subdivision shall be tried by jury.” (Italics mine.)

For most purposes, a public liability insurer stands in the shoes of the insured. Noel v. State, La., 284 So.2d 587 (1973); American Indemnity Company v. Solomon, 231 F.2d 853 (1956); Banks v. Associated Indemnity Co., 161 F.2d 305 (1947); Shaw v. New York Fire and Marine Underwriters, Inc., 252 La. 653, 212 So.2d 416 (1968); Morse v. Hartford Casualty Insurance Company, La.App., 326 So.2d 390 (3rd Cir. 1976); See Cunningham v. Hardware Mutual Casualty Company, La.App., 228 So.2d 700 (1st Cir. 1969). I think the principle applies especially to the procedural matter of whether the suit will be tried by jury or by judge.

In the present case, the issue is the same for both the insured and insurer: Is the insured liable as a tort-feasor? If the insured is not liable, it follows that the insurer cannot be held. See LSA-R.S. 22:655. I agree with the First Circuit Court of Appeal’s holding in Zuber v. Lafourche Parish School Board, La.App., 325 So.2d 764 (1976), that when a jury trial against a political subdivision is prohibited, the same prohibition applies to its liability insurer. There, the Court of Appeal stated:

“Lastly, as to the argument that there is no justification for the denial of a jury trial as against the liability insurer, the courts of this state on several occasions have wrestled with the problem of jury trials where the state or an agency or political subdivision thereof has been a party defendant. .
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“In all of the above cases where the courts have ruled that a jury could determine the issues as they affected the individual litigants, and the judge would determine all other issues, the issues as they did exist were clearly distinguishable as between the individual litigants and the governmental bodies. We do not believe that in the instant proceeding, however, we have such a situation. The Trial Judge in his written reasons for judgment very properly pointed out, ‘the situation does not exist here where there is any other issue than the liability of the public body named herein as the defendant, and there is no issue to sever for the jury to decide one facet and the judge to decide the other.’ We agree with this appraisal by the Trial Judge, and we do not believe that the facts in this case come within the reasoning of Watson v. Hartford Accident and Indemnity Co., supra, Talley v. Friedman, supra, or Champagne v. American Southern Insurance Co., supra.”

For the reasons assigned, I respectfully dissent.

      . Also joined as defendant is the City of Kenner Fire Department Ambulance Service, termed in the petition “a division of the City of Kenner”. No argument is made that the city department is not subject to the same rule as the municipality of which it is an agency.

      . Abercrombie v. Gilfoil, La.App., 205 So.2d 461 (1st Cir. 1967); Jobe v. Hodge, La.App., 207 So.2d 912 (2nd Cir. 1968), writ granted, 251 La. 1079, 208 So.2d 536 (1968); Watson v. Hartford Accident & Indemnity Company, La. App., 214 So.2d 395 (3rd Cir. 1968); Talley v. Friedman, 255 La. 735, 232 So.2d 495 (1970), rehearing denied; Champagne v. American Southern Insurance Co., La., 295 So.2d 437 (1974).


author: DENNIS, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Judith Kay ROACH.
    No. 57650.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for Roach.
   DENNIS, Justice.

Defendant, Judith Kay Roach, was convicted of possession of heroin with intent to distribute, La.R.S. 40:966, and sentenced to serve ten years at hard labor. She filed nine assignments of error, but relies upon only seven of these for reversal of her conviction and sentence.

This case is a sequel to State v. Saia, 302 So.2d 869 (La.1974), and arises from the same factual situation.

Police Officers Arnold Jackson and Paul Eskine, on August 18, 1972, were patrolling in the vicinity of 619 General Taylor Street in New Orleans. The officers suspected that Warren Johnson and Judith Roach were engaged in the unlawful sale of heroin at that address. The officers possessed uncorroborated information to this effect from informants whose prior reports had led to arrests, but as yet no convictions, and unspecified data from fellow police officers. Thus, their information at this time was insufficient to establish probable cause to arrest or to search. As they were driving by the residence they saw Charlene Saia leaving. After observing what they considered to be suspicious acts by Ms. Saia, the officers approached her and discovered two packets of white powder which they believed to be heroin. They placed her under arrest.

As they were putting Ms. Saia in their patrol car one of the officers saw and recognized Warren Johnson as he emerged from the residence at 619 General Taylor Street. When Johnson saw the officers he immediately returned to the residence and re-entered. Officer Jackson unsuccessfully attempted to reach Johnson before he got inside. Jackson was joined by Eskine and together they kicked in the door. Once inside, they saw and recognized the defendant, Judith Roach, in the hallway leading from the front room; she was wearing only an open robe, panties and a bra. Upon their unannounced and forcible entry, Ms. Roach ran down the hallway to a bedroom. The officers pursued her past the kitchen door. Johnson ran out of the kitchen and out the front door. Officer Jackson gave chase, but was unable to catch him. Jackson returned to the bedroom where Eskine waited with Ms. Roach, having placed her under arrest for possession of the heroin seized from Ms. Saia.

After the arrest had been effected, Officer Jackson noticed a piece of green tissue protruding from the left cup of Ms. Roach’s bra, and ordered her to remove it. She removed two packages, one from each bra cup, containing some sixty-two glassine envelopes of heroin.

ASSIGNMENTS OF ERROR NOS. 1 and 7

Prior to trial Ms. Roach moved to suppress the heroin taken from her by the officers as having been unconstitutionally seized. Her motion was denied by the trial judge, and the evidence was admitted at trial. Defendant complains that her rights under the United States Constitution and under Article I, § 5 of the Louisiana Constitution of 1974 were violated. We observe at the outset that defendant’s arrest, accusation and trial occurred prior to the adoption of the 1974 Louisiana Constitution. Therefore her reliance thereon is misplaced.

Officers Jackson and Eskine both testified at the hearing on the motion to suppress, and again at trial, that defendant was arrested for possession of heroin before they discovered the evidence on defendant’s person which she attempted to suppress. Both officers testified they did not know defendant was in the residence when they initiated their entry; they had no warrant for her arrest; and they had no warrant to search the residence at 619 General Taylor Street.

Though the officers suspected, on the basis of uncorroborated information, that the residence was being used as a base for heroin sales by Johnson and Roach, their own testimony clearly establishes that they relied on the arrest of Charlene Saia to corroborate those suspicions, to kick down the door, and to arrest Judith Roach.

In State v. Saia, 302 So.2d 869 (La.1974), we declared Charlene Saia’s arrest unlawful and ordered the suppression of evidence seized incident thereto. Accordingly, defendant argues that the officers, relying as they did on the fact of Saia’s arrest to supply probable cause for their forced entry into the residence at 619 General Taylor Street and for their arrest of Judith Roach, exploited the prior illegal arrest, and the evidence seized from Roach’s person incidental to her arrest must be suppressed.

Had defendant’s arrest occurred after the effective date of the 1974 Louisiana Constitution her argument would be correct. Under the new state charter Judith Roach would have had standing to assert the illegality of the arrest, search and seizure of Saia because she was adversely affected by it. La.Const. Art. I, § 5 (1974) provides:

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

This provision purposefully differs from the prevailing federal rule, which limits the ability to assert the unconstitutionality of a search and seizure to the individual whose person or property was unlawfully searched, e. g., Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and enlarges the class of persons entitled to object to an unlawful search and seizure in this state. The following comments from the committee responsible for drafting Article I, § 5 were included in the Convention Journal when the section was introduced to the convention:

“* * * persons protected against illegal searches and seizures include not only the person whose house or property has been illegally searched but also any other person adversely affected by the illegal search.” Official Journal, Constitutional Convention of 1973, Vol. I, p. 86.

An examination of the convention debates reveals that the delegates were aware that Article I, § 5 as proposed enlarged the class of persons entitled to object to unconstitutional police conduct. XIII Constitutional Convention of 1973, Verbatim Transcripts, 14-28. A proposal which would have deleted the last sentence of Article I, § 5 was defeated by a 37 to 72 margin; the provision at it now appears passed by a vote of 96 to 11. Id. at 28. See also, Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 20-25 (1974).

The question presented by the instant case, however, is whether, under the law existing before the effective date of the Louisiana Constitution of 1974, Judith Roach had standing to assert the unlawful arrest of Charlene Saia, in order to have her own arrest and search suppressed as an unlawful product thereof under the holding of Wong Sun v. United States, supra. The federal courts have consistently held that in order to have standing “* * * one must have been a victim of a search and seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. * * *” Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, 702 (1960). See also, Brown v. United States, supra; United States v. Hunt, 505 F.2d 931 (5th Cir. 1974); 29 Am.Jur.2d, Evidence § 418. Louisiana jurisprudence, under the Louisiana Constitution of 1921 imposed a requirement of standing substantially identical to the federal rule. State v. Vassel, 285 So.2d 221 (La.1973); State v. Rouse, 256 La. 275, 236 So.2d 211 (1970); State v. Page, 251 La. 810, 206 So.2d 503 (1968). Therefore, we conclude that defendant Roach had no standing to complain of the unlawful arrest of Charlene Saia or the illegal seizure of heroin from Saia’s person.

It necessarily follows then, because of the sequence of events, Ms. Roach cannot complain that the arrest and search of her own person were illegal under the principles of law existing at the time. Prior to the arrest of Saia the police officers had information that Roach and Warren Johnson were trafficking in heroin at 619 General Taylor Street. Shortly after Saia exited from this address the officers seized heroin from her. This constituted an illegal search of Saia, as we so held, but it did not amount to illegal activity insofar as Roach was concerned. Instead, combined with the information they already possessed, it gave the officers probable cause to arrest Warren Johnson when he emerged from the same address shortly thereafter. When Johnson hastily retreated into the building the officers, now armed with probable cause, were entitled under the doctrine of hot pursuit to enter in an effort to apprehend him. State v. Wyatt, 327 So.2d 401 (La.1976). Then, upon encountering Ms. Roach inside, they gained, by virtue of the previous events and information within their ken, probable cause to arrest her and conduct a search incidental to the arrest. State v. Tarver, 324 So.2d 382 (La.1976).

Because defendant was arrested before the effective date of Louisiana’s 1974 Constitution, because the rule previously applicable in Louisiana and still applicable in the federal courts requires that a defendant have standing to assert alleged unconstitutional searches and seizures, and because defendant has not shown the requisite standing, we find no basis for reversing the trial judge’s rulings denying defendant’s motion to suppress and admitting at trial the heroin taken from her person after her arrest.

For the foregoing reasons defendant’s first and seventh assignments of error lack merit.

ASSIGNMENTS OF ERROR NOS. 2 and 3

Defendant contends that the trial judge committed reversible error in sustaining the State’s objections to the following questions, directed to prospective jurors on voir dire examination:

“Have any of you gentlemen who’ve said that you served on a jury before, was it a narcotics case?
U* * *
“Are any of you people property owners? Real estate property. Who amongst you are not registered voters? ”

Defendant, relying on State v. Hills, 241 La. 345,' 129 So.2d 12 (1961), argues that these questions were designed to aid him in intelligent use of his peremptory challenges. Hills was most recently discussed by this Court in State v. Monroe, 329 So.2d 193, 195 (La.1976). On original hearing in Monroe we were prepared to reverse defendant’s conviction because we believed the trial judge denied the defendant the right to inquire as to “* * * the prospective jurors’ attitudes toward the presumption of innocence, * * We felt in view of the particular facts of that case that the judge’s rulings were “especially prejudicial.” On rehearing, after being provided a full transcript of the voir dire proceedings rather than the excerpted portions available to us on original hearing, we concluded, without disagreeing with the expressions of law contained in our original opinion, that the trial judge had in fact afforded a sufficiently wide latitude to the defendant in examining prospective jurors.

Again we are presented with a record of only isolated questions during the voir dire examination and are asked to reverse the trial judge because his rulings unreasonably restricted the defendant in obtaining information sufficient to exercise with intelligence and wisdom his peremptory challenges. Because La.Code of Criminal Procedure article 786 vests in the trial judge wide discretion to regulate the scope of voir dire examination, we will not ordinarily reverse his rulings unless we determine that he has abused that discretion by unreasonably limiting the scope of the examination. State v. Jones, 315 So.2d 650 (La.1975); State v. Scott, 307 So.2d 291 (La.1975). Therefore, a review of the trial judge’s discretionary rulings should be undertaken only on the record of the voir dire examination as a whole, or at least upon the entire record of examination of the prospective jurors during which defendant contends such prejudicial curtailment occurred.

On the basis of the limited record before us, we are unwilling to hold that the trial judge’s rulings in this case amounted to an abuse of his discretion.

For the foregoing reasons, we find that defendant’s second and third assigned errors lack merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in ruling that Mr. Edgar Dunn, of the New Orleans Police Department crime laboratory, was qualified to give expert opinion testimony in the field of chemical analysis and identification of narcotics.

The trial judge’s ruling that Mr. Dunn qualified as an expert is supported by the record. Mr. Dunn had a B.S. degree in biology, and lacked only one hour of having his degree in chemistry; he had been employed for two and one-half years by the police department crime laboratory, primarily in the narcotics section; he had previously been qualified as an expert in every section of the Orleans Criminal District Court and in two sections of the juvenile court; he had been specifically qualified as an expert in the field of heroin analysis and identification in Sections “I,” “G,” “J,” “H,” “A,” and “C,” of the Orleans Criminal District Court; he is a member of the Louisiana Association of Forensic Science, and attended several of their quarterly meetings to discuss drug problems and procedures; he testified that he kept up with recent trends in his field by reading specialized journals including the Journal of Forensic Science, and publications from the federal Bureau of Narcotics and Dangerous Drugs.

According to La.R.S. 15:466, the test of an expert’s competency is his knowledge of the subject matter about which he is to testify. The trial judge must be satisfied that he is competent, and the judge’s determination rests in his sound discretion. We will not reverse absent clear abuse. State y. Traylor, 311 So.2d 847 (La.1975); State v. Thorson, 302 So.2d 578 (La.1974); State v. Ledet, 298 So.2d 761 (La.1974).

The trial judge in this case found the evidence sufficient to satisfy him that Edgar Dunn was an expert in the field of narcotics analysis and identification. We find no abuse in his ruling.

Defendant’s fifth assigned error lacks merit.

ASSIGNMENT OF ERROR NO. 6

When Officer Arnold Jackson was questioned as to his qualifications as an expert in the field of narcotics “street usage,” the trial judge intervened and asked several questions about his experience with narcotics addicts. After Jackson’s answers, the trial judge indicated his own satisfaction with Jackson’s qualifications and declared him an expert. Defense counsel objected “to the Court asking the witness on the stand the questions which were asked.” Defendant now argues that he was prejudiced by not being permitted to traverse the officer’s qualifications as an expert in “street use” of narcotics.

The ground presently urged for reversal was not made known to the trial judge at the time of his objection, and cannot properly be availed of for the first time on appeal. La.C.Cr.P. art. 841; State v. Richmond, 284 So.2d 317 (La.1973).

In any event the record supports the trial judge’s ruling. Under La.R.S. 15:466 the trial judge is vested with discretion in determining the qualifications of witnesses tendered as experts, and we find no abuse of that discretion. E. g., State v. Thorson, supra.

Defendant’s sixth assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant assigns as reversible error the trial judge’s ruling allowing the State, on rebuttal, to elicit from Officer Jackson part of the same testimony given by him on direct examination. Defendant relies principally on State v. Davis, 246 La. 383, 164 So.2d 589 (1964), in which we found prejudicial error in the trial court’s refusal to grant defendant’s motion for bill of particulars; its permitting the State to recall two deputy sheriffs to repeat negative testimony which they had given in chief; its permitting the assistant district attorney to relate to the jury during his closing argument his personal participation in the taking of defendant’s confession; and its permitting the district attorney, who did not try the case, to make a personal plea to the jury for the conviction of the defendant. Thus, the repetition of testimony on rebuttal was merely one factor causing the court to reverse in Davis and it 'occurred within an entirely different setting than the testimony complained of by defendant here.

In the present case Officer Arnold Jackson testified on direct examination to the events leading to the defendant’s arrest, including the arrest of Charlene Saia. The defense called Ms. Saia to the stand, and she testified that she had not been inside the residence at 619 General Taylor Street on the date of defendant’s arrest. In rebuttal the State recalled Officer Jackson and in response to questions propounded to him by the State’s attorney, and over a timely defense objection which the trial judge overruled, Officer Jackson repeated his version of Saia’s arrest as he had given it on direct examination.

Though the police officer’s testimony was repetitious and perhaps error, it was not reversible error; he merely adverted to evidence already properly admitted. Thus, the repetition did not “prejudice] the substantial rights of the accused.” La.C.Cr.P. art. 921; State v. Major, 318 So.2d 19 (La.1975).

This assignment of error is without merit.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., concur.

DIXON, J., dissents with reasons.

TATE, J., dissents, for reasons assigned by DIXON, J.

DIXON, Justice

(dissenting).

I respectfully dissent.

The question in this case is not one of retroactivity of a constitutional provision newly found by a supreme court. (See State v. Rester, 309 So.2d 321 (La.1975)). The question is whether a right granted a defendant in the 1974 Louisiana Constitution is now available to her. The question is whether the 1974 constitutional provision, Article 1, § 5, which gives any person adversely affected by an illegal search and seizure “standing” to raise the exclusionary rule in her appeal in this court.

To say that the defendant, in a case not final, is denied the constitutionally granted right to exclude illegally seized evidence is to disregard state and federal constitutional guarantees of equal protection.

There is a great difference in the retroactive application of newly enacted procedural and substantive rights and the question in this case; that is, is the constitutional provision concerning “standing,” in existence since January 1, 1975, available now to a litigant in this court in a case which has not yet reached finality?

The exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) and Article 1, § 5, Louisiana Constitution of 1974, goes to the integrity of the system of administering criminal justice, and, at the very least, should be available in those cases not final.

       La.Const. Art. XIV, § 26 (1974) provides:
      “Section 26. Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Isaac LAWSON, Jr., Appellant.
    No. 57730.
    Supreme Court of Louisiana.
    Oct. 6, 1976.
    Rehearing Denied Nov. 5, 1976.

      John M. Lawrence, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Laws on was convicted of manslaughter, La.R.S. 14:81, and sentenced to fourteen years at hard labor. The conviction resulted from a second trial, since an earlier trial had been ended by a court-declared mistrial.

The principal contention on the present appeal is that the present re-trial constituted double jeopardy in violation of the defendant’s constitutional rights. He argues that therefore the present conviction must be reversed and any (re)prosecution on the charge barred.

Context Facts

The defendant is charged with killing Evelyn Bass.

She was the common-law wife of Jefferson Barber. Barber had earlier slapped Lawson’s common-law wife (Dorothy Robinson), following which the defendant Lawson came to Barber’s home armed with a pistol.

The defendant Lawson shot Mrs. Bass when she shielded her husband with her body. She subsequently died. The chief defense on the second (or present) trial was to cast doubt on the veracity of Barber, the only eyewitness, on the basis of his prior convictions and of his perjury at the first trial in denying such convictions.

The first trial ended when, after conference with the prosecutor and the defense attorney, the court declared a mistrial. The incident occurred during the state’s direct examination of its rebuttal witness, Mrs. Dorothy Robinson, the common-law wife of the defendant. She was asked: “Are you aware that your husband is convicted of manslaughter?”

At this point, the defense counsel immediately objected: “Hold it. No. He’s been admonished.” The witness never answered.

Legal Principles Applicable

Both state and federal constitutions prohibit the government from twice placing a person in jeopardy for the same offense. La.Const. of 1974, Art. 1, Section 15; United States Constitution, Fifth Amendment. Enforcing the constitutional guarantee, and more specifically barring the state from re-trying an individual for the same offense, the Louisiana legislature has enacted Article 591 of the Louisiana Code of Criminal Procedure:

“No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.”

The issue before us primarily concerns whether the present is “a mistrial legally ordered under the provisions of Article 775” of the Code (which we will quote below).

The constitutional protection against double jeopardy bars repeated prosecutions of an accused for the same offense, as well as repeated convictions and multiple punishments for it. Therefore, a mistrial declared by the trial court without the consent of the defendant will ordinarily bar further prosecution of him for the same criminal conduct. State v. Birabent, 305 So.2d 448 (La.1975); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), Noted, 32 La.L.Rev. 145 (1971).

This rule is subject to limited exceptions, where the court-ordered mistrial is regarded as justified in the interests of the accused or as required by physical or legal necessity. See Note, 32 La.L.Rev. 145 (1971) and Official Revision Comments (b) and (c), Article 775 of the Louisiana Code of Criminal Procedure. As these sources note, while the Louisiana and federal criteria are generally congruent, nevertheless the federal constitutional test justifying a mistrial (and thus not barring re-trial) is more general and in some respects broader, than is the more specific and somewhat more limited conditions provided by Louisiana’s constitution and statutory law by which Louisiana trial courts may justifiably declare mistrials without the consent of the defendant.

(1)

For purposes of federal constitutional review, the declaration of a mistrial will not bar re-trial if it is dictated under restricted circumstances by the “manifest necessity” to do so in the interests of justice. Illinois v. Sommerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Perez, 9 Wheat. (22 U.S.) 579, 6 L.Ed. 165 (1824). As Sommerville notes, 410 U.S. 464, 93 S.Ct. 1070: “A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.”

The mistrial here ordered met this test, and the federal constitution does not bar re-prosecution as double jeopardy: The improper reference by the prosecutor as to an unrelated crime is regarded as so prejudicial to an accused as to mandate mistrial, if he moves for it. La.C.Cr.P. art. 770(3). The reference prohibited includes not only a prosecutorial statement but also suggestive prosecutorial question. State v. Meshell, 332 So.2d 767 (La.1976).

Under these circumstances, as we read the federal authorities, the trial court had reasonable grounds to conclude that since, after the prejudicial comment, an impartial trial could not be had, a manifest necessity existed for it to declare a mistrial. We are unable to find an abuse of its discretion to do so, insofar as permitted by federal constitutional principles relating to double jeopardy.

(2)

Nevertheless, the trial court’s authority to declare a mistrial is, under the present circumstances, more limited under Louisiana state law. By the Louisiana Code of Criminal Procedure, our legislature has placed specific statutory limitations upon the trial court’s right to declare a mistrial without the consent of the defendant. Article 591, quoted above in the opinion, then permits re-trial without double jeopardy only where, in the first trial, the mistrial was “legally ordered under the provisions of Article 775”.

Article 775 notes only five specified situations in which the trial court may declare a mistrial upon its own motion. Of these, arguably applicable to the present issue is that provided by 775(3): “A mistrial may be ordered, and in a jury case the jury dismissed, when: * * * There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law. * * * ”

Official Revision Comment (c) to this article specifically notes the article’s intent to reject the federal “general test” of “manifest necessity” in favor of state criteria authorizing the trial court to declare a mistrial on its own motion to the five situations specified by the article.

Unlike the federal-test’s discretion allowed to the trial court to determine when a mistrial is justified by the manifest necessity to assure an impartial trial, in the face of prejudicial trial error the Louisiana judge may order a mistrial without the consent of the defendant for legal defect only when a conviction so obtained would be “reversible as a matter of law.” Article 775(3), quoted above. Further, as provided by the next to last paragraph of Article 775 (see footnote 5 above), the trial court may not declare a mistrial if the prosecutor refers to an inadmissible crime, prohibited by Article 770, unless the defendant himself moves for one; and the present record does not reflect such a motion by the accused (see colloquy at footnote 3 above).

Application of These Principles to the Present Case

In the present case, the trial court was not authorized to declare a mistrial because of the prosecutor’s comment unless the defendant moved for one. Article 770. The defendant could also have requested an admonition instead of a mistrial. Article 770.

Thus, at the time of the improper prosecutorial question, it did not constitute “a legal defect in the proceedings which would make any judgment rendered on a verdict reversible as a matter of law”. Article 775(3). The trial court therefore did not possess the statutory discretion conferred by that code provision to declare a mistrial without the consent of the defendant.

However, the failure of a defendant to object to a mistrial is deemed to be an acquiescence in its ruling which bars subsequent complaint that it was improper. Official Revision Comment (e), Article 775; Article 841. The record here does not reflect any objection by the defendant at the time the mistrial was ordered.

Nevertheless, the defendant argues in brief that his attorney was attempting to object to the mistrial and to accept the more limited relief of an admonition, when he was interrupted by the trial court. See colloquy at footnote 3. The defendant thus strongly argues that, content with discrediting of the state’s only eyewitness at the first trial (see footnote 2), he desired to have his innocence or guilt decided by the jury empanelled at his first .trial, as was his right under the double jeopardy clauses of the state and federal constitutions..

The issue gave us serious concern. Nevertheless, we ultimately conclude that the record correctly reflects that no objection to the mistrial was intended at the time it was ordered by the trial court:

Based in large part upon the present contention of double jeopardy, in post-conviction proceedings (docket no. 55209) brought by the defendant, we first ordered an out-of-time appeal, see State ex rel. Lawson v. Henderson, 300 So.2d 845 (La.1974), and then an evidentiary hearing to supply any portions of the transcript alleged to be missing, 317 So.2d 619 (La.1975).

A principal complaint was that the record of the first trial should be transcribed and included in the present record. At the evi-dentiary hearing of November 3, 1975 consequently held (which is in the record of the present appeal), the defendant’s counsel acknowledged receipt of the transcript for the first trial (the transcript of June 19, 1973), without complaint at the time that it was incomplete or that he had intended to object to the mistrial at the time it was ordered.

In view of the importance of this issue as set forth in the post-conviction pleadings, we deem it unlikely that so important an omission would not have been noted or raised at the time of this evidentiary hearing, which was specifically ordered by us to permit the record to fully show the basis for the accused’s double-jeopardy and speedy-trial contentions.

Further in reviewing the entire colloquy (see footnote 3), including counsel’s dissatisfaction with a mere apology for the improper prosecutorial reference and also the un-transcribed bench conference immediately following it and preceding the mistrial, we find much support for the prosecutor’s construction of the record as reflecting that, following the bench conference, the trial court ordered a mistrial with the consent of the defendant.

We conclude that the failure of the defendant to object to the mistrial as improper constitutes an acquiescence in the ruling, which, equivalent to the consent of the defendant, waives any complaint that the court-ordered mistrial violated his double-jeopardy rights. Official Revision Comment (e), Article 775; Article 841.

We therefore find no merit to Assignments 10 and 17, which urge the issue of double-jeopardy.

Other Assignments:

Assignments 1-7: These assignments raise the issue of the denial of a speedy trial. Without detailing the circumstances (which are set forth in the trial court’s per curiams), we simply state that the actions of the trial court are shown to have been justified, nor is any prejudice claimed or proved. The defendant was indicted October 5, 1972, and first actually sought trial for April 19, 1973. He was tried on June 19, 1973, some eight months after indictment. The re-trial was on July 10, 1973.

No prejudice nor unreasonable delay is shown so as to justify dismissing the charge because of a denial of a speedy trial. See State v. Maiden, 261 La. 80, 259 So.2d 20 (1972) and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Assignments 8, 9: These concern alleged trial errors in the conduct of the first trial, which ended in a mistrial. They do not affect the validity of the conviction resulting from the second trial. However, defendant now contends by Assignment 9 that a rebuttal witness was called by the state in the first trial with the deliberate intention of eliciting from her improper testimony so as to cause a mistrial.

At the time, the objection to the rebuttal witness testifying was solely as to the surprise nature of her testimony, since she had not been subpoenaed. After this objection was overruled, the state questioned here as to incidents leading up to the shooting, as to whether the defendant had a pistol, and as to whether she had telephoned the police to report who had killed the decedent—all without any objection by the defense that this testimony was improper rebuttal. The objectionable testimony came when the state (improperly, as the trial court ruled) sought to show the violent nature of the defendant, as a cause for the witness now denying on the stand that she had reported him to the police.

The claim that this witness was improperly called in rebuttal, with a deliberate prosecutorial attempt to provoke a mistrial, is not supported by the record.

Assignment 11: The objection to the admission of the coroner’s report and the proces verbal is without merit. See: La.C.Cr.P. art. 105; State v. Berry, 324 So.2d 822 (La.1975); State v. Jones, 320 So.2d 182 (La.1975); State v. Sneed, 316 So.2d 372 (La.1974).

Assignment 12: The defendant contends that he was improperly denied impeachment of a state witness as to his prior criminal record. The witness was permitted to be examined as to his prior criminal convictions, but not as to the factual circumstances of his parole violations (which were not convictions). The ruling appears to be correct. La.R.S. 15:495.

Assignments 13, 14, 15 and 16 concern a clearly correct evidentiary ruling, some evidence as to which no objection was made at the trial, a requested special charge clearly inappropriate, and the denial of a motion for a new trial. No error is shown by them.

Decree

We affirm the conviction and sentence, for the reasons above set forth.

AFFIRMED.

SUMMERS, J., concurs in the result.

      . At the first trial, a witness testified for the defense in support of a defense of self-defense, alleging that Barber , had a knife in his hand. The state sought to impeach the credibility of this witness by his admission of prior convictions and by his partial admission of a prior inconsistent statement,

      . One of the defendant’s principle contentions of prejudice resulting from the mistrial at the first trial is based on this circumstance:
      Upon Barber’s denial of his prior convictions at the first trial, the defendant proved him to be a perjurer by a police witness called by the defense, who testified as to prior felony and other convictions. The defendant contends that the prosecutor then deliberately caused a mistrial by an impermissible query of a rebuttal witness, so as to avoid a verdict of acquittal by the first jury.
      The record does not, however, indicate merit to this contention. See discussion of Assignment 9 in text below.

      . We will advert later to the contentions with regard to the subsequent colloquy. The full transcript of the colloquy between the court, the defense counsel (Mr. Lawrence) and the prosecutor (Mr. Whalen) is as follows:
      Q. [By the state]: Are you aware that your husband has been convicted of manslaughter?
      Mr. Lawrence: Hold it. No. He’s been admonished.
      Mr. Whalen: I apologize, Your Honor.
      The Court: Approach the bench.
      Mr. Lawrence: You got in it, though you’re apologizing.
      (Discussion at the bench).
      The Court: Gentlemen of the jury, this is a prejudicial error that has been made, and the Court has no alternative but to grant a mistrial.
      Mr. Lawrence: Your Honor, if you will—
      The Court: The Court grants a mistrial in this case. The jury is dismissed, gentlemen. You are discharged.

      .The essential historical reason is to prevent an accused from being deprived through a mistrial of an acquittal after his trial has started, as well as to prevent governmental harassment of an individual by successive trials for the same offense. See also United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 1020-25, 43 L.Ed.2d 232 (1975) and United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975).

      . Article 775 provides in full:
      “A mistrial may be ordered, and in a jury case the jury dismissed, when:
      (1) The defendant consents thereto;
      (2) The jury is unable to agree upon a verdict;
      (3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;

      (4) The court finds that the defendant does not have the mental capacity to proceed;
      (5) It is physically impossible to proceed with the trial in conformity with law; or
      (6)False statements of a juror on voir dire prevent a fair trial.
      “Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
      “A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.” (Italics ours.)