author: DENNIS, Justice.

text:
    Alton M. FOLSE et al. v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    No. 60345.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearings Denied April 6, 1978.

      William E. Skye, Alexandria, for plaintiffs-applicants.
    Philip K. Jones, Marshall W. Wroten, Robert J. Jones, Doran & Kivett, William J. Doran, Jr., Sp. Asst, to Gen. Counsel, La. Dept, of Highways, Baton Rouge, for defendant-respondent.
   DENNIS, Justice.

This dispute arose over the possession and ownership of a strip of land abutting an existing highway which the Highway Department sought to widen and improve. Plaintiffs-relators, Alton M. Folse and Frank M. P. Deville, are undisputed owners of two tracts of land situated on or near Louisiana Highway 107 in Pineville, Louisiana. Their property is separated from the highway roadbed by the strip of land in question. At the time that the instant action was commenced, Highway 107 was a two-lane road which the Department of Highways planned to widen to four lanes. After the Department had prepared plans and specifications for the widening project and had awarded the contract based upon bids received in response to its advertisement, plaintiffs sued to enjoin completion of the project. Specifically, they sought an injunction to prevent the Department from signing the contract and awarding the work order until it had obtained a conventional deed or a right of way over the disputed tract of land which plaintiffs claimed they had peacefully possessed for more than one year prior to the institution of the action. La. C.C.P. art. 3663(2).

Both the property in question and plaintiffs’ tracts were originally owned by one Scipio E. Compton, plaintiffs’ ancestor in title. In 1905, Compton granted a right of way over the property to the Louisiana Railway and Navigation Company for the building of a railroad. An examination of the conveyance to the railway company reveals that the company was not granted the property in fee, but rather that it acquired what has been referred to as a limited personal servitude over the land.

In 1921, the Louisiana Railway and Navigation Company purportedly sold its rights in the right of way to the Rapides Parish Police Jury for the building of a parish road. In that same year, by Act 95 of 1921 (now La.R.S. 48:191), the Louisiana legislature created a system of state highways by designating certain parish roads as part of the state highway system. The Rapides Parish road constructed on the original right of way was thereby designated as Louisiana Highway 57, which later became Highway 107.

In 1970, after having executed specific acts of abandonment to certain contiguous property owners of other portions of the right of way, the Police Jury executed a blanket act of abandonment of the right of way in the vicinity of the plaintiffs’ lots. By this act, the Police Jury purported to abandon its interest in the property to the contiguous property owners.

Trial was held on the plaintiffs’ original suit for a preliminary injunction on February 10, 1975, and judgment was rendered granting the injunction. On February 27, 1975, the Highway Department presented to the district court a pleading entitled “Motion and Order”, amending its answer to assert title to the property, which the court converted into a motion for a new trial. On March 10,1975, the new trial was held, and on March 13 the district court rendered judgment, accompanied by lengthy oral reasons, recalling and setting aside the injunction previously issued and reserving to all parties any rights which they might have insofar as the ownership of the property was concerned. The court of appeal denied plaintiffs’ application for cer-tiorari, and work on the highway project began.

Thereafter, a trial on the merits as a petitory action was held before a different judge of the same district. Judgment was entered for the defendant department, but the reasons assigned were couched in terms of injunctive relief. The plaintiffs appealed, and the Third Circuit Court of Appeal affirmed. Plaintiffs applied for certiorari, contending that the appellate court erred in not finding that the second trial was a petitory action, that the Department of Highways had failed to meet its burden of proving ownership, and that the plaintiffs were entitled to an award based on the value of the disputed strip of land.

Under Louisiana Code of Civil Procedure Article 3657 a defendant who converts a suit into a petitory action judicially confesses the fact of his opponent’s possession. Since the defendant Department brought about such a conversion in the instant ease the court of appeal erred in finding that the plaintiffs had failed to prove open and peaceful possession for more than one year prior to bringing the suit. Moreover, both the court of appeal decree and the final trial court judgment were based upon the mistaken impression that the injunction proceeding judge found that plaintiffs were not in possession of the property. In fact, the original trial judge found that plaintiffs proved their possession, and there is adequate evidence to support his findings.

Nevertheless, the Department contends that it is entitled to prevail because it met the requisites of La. C.C.P. art. 3653(1) by proving that it has valid title to the disputed property.

In asserting its title to the questioned property, the Department relies upon Act 95 of 1921 (Now La. R.S. 48:191) for the proposition that the legislature, in designating certain parish roads as state highways, intended to convey not only the roadway, but the right of way vested in the parish, to the Department. La. R.S. 48:191 provides in pertinent part:

“There is hereby created and established a system of state highways which shall consist of Class A Highways or a Primary System to include 4200 miles; Class B Highways or a Secondary System to include 4300 miles; and Class C Highways or a Farm-to-Market System to include 6750 miles; provided that the total mileage of the three systems shall not exceed 15,750 miles, and provided further that the over plus of mileage allowed for herein is allowed and fixed solely for the purpose of adjustments that might become necessary from time to time within the sole discretion of the Board of Highways, working in conjunction with the police juries or municipalities. The three road systems hereinabove established shall extend as nearly as possible along the routes and between the various points hereinafter set out, the specific and detailed location or relocation of said highways to be determined by the Board of Highways. Provided however, that nothing herein shall apply to the inclusion of new roads in the Interstate Systems or to Toll Roads.
“The location of all highways in the three road systems established hereby may be altered and amended by the Board of Highways to such an extent and in such a manner as may be necessary for the purpose of meeting any requirements in order to obtain Federal aid for road construction in Louisiana.”

A fair reading of the above-quoted statute does not support the Department’s contention that the legislature intended to convey to the state all of the existing rights of way, held by parish governing bodies, which were contiguous to the roadways designated by the statute as “state highways.” This conclusion is reinforced by the action of the Department, in 1951, in obtaining from the Rapides Parish Police Jury a grant of a portion of the Highway 107 right of way which paralleled the roadway east of the plaintiffs’ property. Therefore, we find that the Department failed to meet its burden of proving title, and that the plaintiffs-relators were accordingly entitled to judgment rejecting the Department’s petitory action.

Plaintiffs are also entitled to some type of monetary compensation for the disturbance of their possession by defendants. La. C.C.P. art. 3662(3); Loeblich v. Garnier, 113 So.2d 95 (La.App. 1st Cir. 1959); Chinn v. Blanchard, 6 La.Ann. 66 (1851); cf. Roge v. Kuhlman, 136 So.2d 819 (La.App. 3d Cir. 1962); Harrison v. Petroleum Surveys, Inc., 80 So.2d 153 (La.App. 1st Cir. 1955). However, plaintiffs are not entitled to be compensated for the full value of the land, as in an expropriation proceeding; rather, the measure of their damages should be the value of their possession of the property, subject to preemption by the true owner in a petitory action. Cf. Dupuy Storage and Forwarding Corporation v. Cowan, 216 So.2d 610 (La.App. 4th Cir. 1969). Since there is insufficient evidence in the record of the value of their possessory interest upon which to base an award of damages, the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

The judgment of the Court of Appeal is vacated and the case is remanded to the trial court for further proceedings in accordance with this opinion.

      . 3 A. Yiannopoulos, Louisiana Civil Law Treatise, § 125 (1968). The writer defines “limited personal servitude” as a real right of enjoyment created in favor of a person.

      . Although confusion exists in the record we have reached the conclusion that this is a peti-tory action. Statements made by both attorneys at the trial indicated that they felt the posture of the case was that of a petitory action; the order of trial, in which the Highway Department presented its case as plaintiff, demonstrates that a petitory action was contemplated by the parties; both sides attempted to prove title; a question properly resolved only by petitory action. La. C.C.P. art. 3653.

      .Although both parties presented extensive evidence of title, the trial court’s reasons for judgment provided only that the request for “injunction” was denied because the plaintiffs lacked the necessary possession to bring such a suit. Despite the fact that the court stated that it agreed entirely with the findings of fact made in the earlier trial on the injunction, its statement that the plaintiffs lacked the necessary possession to maintain a suit under La. C.C.P. art. 3663 is in direct conflict with one of the earlier findings of fact, viz., that the plaintiffs were in peaceful possession for more than one year prior to the institution of the suit.

      . We pretermit, for purposes of this opinion, a discussion of whether the purported transfer from the Louisiana Railway and Navigation Company to the Police Jury was legally effective.

      . Plaintiffs argued, in brief to this court, that they are the owners of the property in question by virtue of the “blanket abandonment” executed by the police jury in 1970 in favor of the contiguous landowners. An examination of the document in question reveals that the abandonment was ineffective because it does not provide the specificity of description necessary to a conveyance of real property. It is unnecessary for us to consider whether as part of the agreement to try the suit as a petitory action the plaintiffs waived their claims to injunctive relief against the Department; in brief to this Court plaintiffs have abandoned any such claim by conceding that the only question left for resolution is their entitlement to monetary compensation.


source: Caselaw Access Project

author: TATE, Justice. SANDERS, Chief Justice MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Floyd FALKINS, Appellant.
    No. 60628.
    Supreme Court of Louisiana.
    March 6, 1978.
    Rehearing Denied April 6, 1978.

      Paul L. Billingsley, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant Falkins was convicted of armed robbery, La.R.S. 14:64, and sentenced to imprisonment at hard labor for thirty years.

His appeal presents five assignments of error. Of these, Assignments 1 and 2 raise a substantial issue of reversible error. They concern the failure of the state’s pros-ecutrix to reveal, upon request, information of an exculpatory nature — that two of the state’s eyewitnesses had, on the day of the robbery, made mistaken identifications of a person as the robber who was not actually involved in or present at it.

Factual Context

Three men robbed a teller at a bank in December, 1975. Falkins was arrested some five months later, primarily based upon the claim of one of the admitted robbers that Falkins was a co-participant. (At the trial, Falkins testified, claiming innocence; he ascribed the robber’s identification of him as arising from a grudge in connection with a narcotics disagreement between them.)

Falkins’ conviction is based solely upon eyewitness identification made, after his arrest, by bank employees and a customer present during the robbery. Neither the weapon or costumes used in the robbery, nor any of its proceeds, were discovered or connected with him. The bank was equipped with cameras, but the film did not include any image of the accused during the robbery. Tr. 64.

Specific Pre-Trial Request as to Identification Evidence

Assignments 1 and 2 relate to the denial of a new trial, despite a showing that exculpatory identification evidence had been withheld from the defense, and that the defendant had made specific pre-trial inquiry of the prosecutor as to the existence of such subject-matter information.

On the motion for new trial, after appointment of new counsel, an evidentiary hearing developed the following facts:

On the day of the bank robbery, the FBI arrested several suspects and brought them to the bank. Two of the eyewitnesses to the robbery positively identified one Duros-seau as one of the robbers. It is conceded that their initial identification was mistaken.

The United States Attorney’s office made this information available to the state assistant district attorney in charge of the prosecution. Although this prosecutrix’ recollection was unclear, the positive testimony of the federal attorney, together with her own admissions, make it virtually indisputable that she was specifically informed that two eyewitnesses had made a mistaken identification of a robber on the day of the robbery.

In the state prosecution, prior to trial, the appointed defense attorney requested of the prosecutrix information as to whether any individuals were identified by the bank personnel subsequent to the robbery. Upon receiving information from the prosecutrix that no such identifications were made, the defense attorney did not file a Brady motion requesting revelation of exculpatory information.

Again, the recollection of the prosecutrix is unclear as to this incident. However, she further testified that, if formally ordered to reveal exculpatory information at the time, she would not have felt obliged to reveal this initial misidentification. Her reason was that the misidentification of one of the three robbers is not necessarily exculpatory of the accused himself.

For the present purposes, we will accept the record as preponderantly showing that, despite a specific request of the defense attorney as to the existence of such identification evidence, the prosecutrix did not reveal that two of the state’s eyewitnesses had earlier misidentified one of the robbers.

The trial court itself apparently so concluded, in resting its denial of the new trial upon the reason that the defendant had not, by formal Brady motion instead of informal request, asked for this exculpatory evidence.

Undoubtedly, a formal motion might preserve the request better than the recollections of the attorneys at a subsequent time. Nevertheless, considering the affirmative duty of the prosecutor to disclose exculpatory evidence in some instances even without request, we do not believe that the constitutional right to obtain exculpatory information of a specified nature upon specific request, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), State v. May, 339 So.2d 764 (La.1976), is waived by lawyer-to-lawyer request, which relies for disclosure upon the traditional professional responsibility and honorable candor of the legal profession, instead of by making a formal motion to the court for it.

Legal Principles Applicable

Unquestionably, upon specific request concerning the existence of exculpatory identification testimony, the prosecu-trix was in error in failing to disclose it, especially since the state’s whole case depended on eyewitness identification. State v. May, 339 So.2d 764 (La.1976).

As we there stated, 339 So.2d at 770, quoting from Agurs at 96 S.Ct. 2399: “ ‘ * * * Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.’ ”

Upon formal request, the trial court should and presumably would have ordered the state to furnish information of the mis-identification immediately following the robbery.

The issue before us, however, is not only whether the state upon request should have disclosed the misidentification testimony (it should have); but, in addition, whether the state’s failure to disclose it is error requiring reversal.

As to the latter issue, reversibility is essentially determined by whether the “nondisclosure deprived the defendant of his right to due process . [i. e.] of a fair trial,” Agurs, 96 S.Ct. 2399. Whether the evidence withheld is so constitutionally material as to require reversal is determined by an “inevitably imprecise standard” in the light of the “entire record.” Id.

In Agurs, the United States Supreme Court summarized the constitutional test of reversibility because of nondisclosure in these terms, 96 S.Ct. 2401-02:

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that [in a post-trial hearing by the court] if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is not justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

Reversible Error Shown

Examining the record as a whole, we find that the initial misidentification of the robber by two state eyewitnesses was so material that its nondisclosure, especially upon request, deprived the defendant of a fair trial.

As earlier stated, the sole basis of the state’s conviction is the eyewitness identification of the accused as one of the three robbers. These five eyewitnesses had never seen the accused before, had mostly glimpsed but briefly the robber they identified as the accused in the episode of five minutes or so, and did not have the opportunity to view the defendant himself until some five months after the robbery.

Were the identifications strong and positive, nondisclosure may not have required reversal. Here, however, as a summary of the facts will show, failure to disclose to the accused the earlier misidentification by two of the state’s eyewitnesses, for purposes of cross-examination as to the credibility of their trial identification testimony, had the effect of omitting evidence which “in the context of the entire record create(s) a reasonable doubt as to the defendant’s guilt.” State v. May, cited above, at 339 So.2d 771.

The robbery occurred as follows:

Three black men entered the bank. One of them stood at the door, maintaining a lookout and holding a gun on bank employees made to lie on the floor. One jumped over the teller’s bench and forced a teller to give her some cash and to search for more, striking her with a gun in the process. The third (identified as the accused by three of the witnesses) stood with a bag in the center of the room.

This third robber was dressed in woman’s clothes, with a wig. He was not masked, as were the other two robbers. His face alone was seen by the witnesses.

On the day of the robbery, FBI agents brought one Durosseau to the bank as a suspect. Two of the state’s five eyewitnesses positively identified Durosseau as the robber. These two witnesses were the security guard (Williams) and a bank customer (Mrs. Peggy Ralph).

In the context of the record, he was so identified on the basis of the facial similarity of Durosseau to the robber, just as on the same basis (see below) the present defendant was so identified. The failure to disclose this misidentification becomes material in the light of the evidence as a whole.

The testimony of the five eyewitnesses may be evaluated as follows:

(1) The bank guard (Williams), alone of the witnesses, identified the accused as the robber who stood guard at the door. (The other witnesses identified him as the man in woman’s clothes). He was firm in his identification. Under cross-examination, he testified positively as to his “good memory of the incident, Tr.'47, and that there was “no doubt in my mind,” Tr. 45. (It is to be remembered that on the day of the robbery he had mistakenly identified Durosseau with the same certainty.)

(2) The customer (Mrs. Ralph) was likewise positive that the man without a mask in woman’s clothes was the defendant. Tr. 53. However, in her earlier identification on the day of the robbery, she had with equal certitude identified Durosseau as the unmasked robber.

In both of these instances, the earlier positive misidentification was of another person than the defendant, who was now at the trial identified by them as the robber whose face they had previously misidentified as Durosseau’s. This strong circumstance indicating possible error in their present trial identification is one which, brought to the jury’s attention, might well have raised reasonable doubts as to the accuracy of their identification of the accused.

In addition, however, other circumstances indicate the weakness of the identification testimony as a whole. It is in this context that the earlier misidentification becomes so material that its nondisclosure amounts to reversible error:

(3) The cashier (Ms. Lebeaud) was struck by and largely preoccupied with another of the robbers. She recognized the accused at the lineup some months later by “the features in the face,” including his “high cheek bones.” However, she also testified that, immediately following the robbery, she had described the woman-clothed man (whom she now identified as the accused) as being between 5' 4" and 5' 7" in height; whereas, in fact, the woman-clothed man was “the tallest one,” Tr. 46, stated in brief to be six feet tall.

(4) The bank manager (Nogess) had identified the accused as a robber “by facial structure” at the lineup held four months or so after the.robbery. At the trial, he identified the accused as the man he had identified at the lineup, but he admitted he wasn’t “sure” the defendant was the man and that he did not get “that good a look at any one of the individuals.” Tr. 40.

(5)The last of the five witnesses, the receptionist (Mrs. Venturells), did positively identify the accused as the unmasked robber in woman’s clothes.

In summary, however, the record discloses weaknesses and uncertainties in the identifications made by two of the state’s five witnesses. Thus, the misidentification by two others on the day of the robbery, if brought to the attention of the trial jury, was sufficiently material as to have raised reasonable doubt in the jury’s mind, both as to the witness’ own positive trial identification and also as to the strength of the state’s case (i. e., since the identification of the accused by four out of five of the state’s eyewitnesses is shown to be open to doubt).

Upon this showing, the constitutional test for reversibility has been met; for, as Agurs states, “the omitted evidence creates a reasonable doubt that did not otherwise exist.” 96 S.Ct. 2401.

We are thus unable to agree with the persuasive and forceful arguments presented by the state’s appellate brief that the nondisclosure is not reversible, because it concerned only matters marginally useful for purposes of impeachment. See, e. g., State v. Owen, 338 So.2d 645 (La.1976) and Garrison v. Maggio, 540 F.2d 1271 (CA 5, 1976), relied upon by the state.

Decree

For the reasons stated, therefore, we find that the defendant was denied a fair trial by the nondisclosure, upon request, of material evidence casting doubt upon his guilt. We reverse the conviction and sentence, and we remand for a new trial.

REVERSED AND REMANDED.

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

SUMMERS, J., dissents.

MARCUS, J., dissents and assigns reasons.

SANDERS, Chief Justice

(dissenting).

In the present case, three men robbed a New Orleans bank. On the day of the robbery, the F.B.I. brought several suspects to the bank for possible identification. Two of the five eyewitnesses misidentified one of them as one of the robbers. The Assistant District Attorney made no disclosure of this information to the defense prior to trial. The majority reverses the conviction. I disagree.

As noted by the majority, the controlling decision is United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Under that decision, the test of reversibility is whether or not the undisclosed evidence creates a “reasonable doubt that did not otherwise exist.” If there is only the “mere possibility” that the undisclosed information might have produced a contrary verdict, reversal is not required. State v. Owens, La., 338 So.2d 645 (1976).

In my opinion, the misidentification of one of the three participants on the day of the robbery is insufficient in the light of the entire record to raise a reasonable doubt as to this defendant that did not otherwise exist. See State ex rel Clark v. Marullo, La., 352 So.2d 223 (1977); State v. Cass, La., 356 So.2d 936 (1977); State v. Williams, La., 349 So.2d 286 (1977).

For the reasons assigned, I respectfully dissent.

MARCUS, Justice

(dissenting).

I do not consider that the failure to disclose the initial misidentification of one of the three robbers by two of the five eyewitnesses, for purposes of cross-examination, was so material that it deprived defendant of a fair trial. Evaluated in the context of the entire record, I do not believe that the omitted evidence creates a reasonable doubt that did not otherwise exist. Hence, no constitutional error was committed. I find no justification for reversal of the conviction and sentence and remand for a new trial. Accordingly, I respectfully dissent.

      . The prosecution is obliged to make available to the accused’s counsel evidence that it has obtained which is clearly supportive of the accused’s innocence, even in the absence of any defense request for it. United States v. Agurs, cited in text below, at 96 S.Ct. 2399. As will be seen, as developed at the trial, the two eyewitnesses had affirmatively identified as another person the robber they now identified as the defendant. At the time of non-disclosure, however, the state (not having the benefit of the full trial testimony) did not so realize. The non-disclosure in this instance indicates the wisdom of liberal rather than guarded disclosure, in order to avoid post-conviction reversal for non-disclosure of what turns out to be truly exculpatory.

      . Agurs, 96 S.Ct. 2399: “Because we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure.”

      . The record indicates that one of the other robbers was 5' IT' in height. Tr. 46.


author: PER CURIAM.

text:
    STATE of Louisiana v. Jules GREEN.
    No. 60466.
    Supreme Court of Louisiana.
    March 15, 1978.
    Thomas J. Ford, Jr., 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., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Manie P. MOSBEY.
    No. 60637.
    Supreme Court of Louisiana.
    March 15, 1978.

      Ralph L. Barnett, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Me-tairie, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Michael FERRAND.
    No. 60649.
    Supreme Court of Louisiana.
    March 15, 1978.
    Patrick D. McArdle, 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., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The issue of whether the defendant was denied effective assistance of counsel is more properly raised by application for writ of habeas corpus. State v. Anthony, 347 So.2d 483 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976).

Finding no reversible error based on the record before us, defendant’s conviction and sentence are affirmed.


text:
    STATE of Louisiana v. Leonard JOHNSON.
    No. 60650.
    Supreme Court of Louisiana.
    March 15, 1978.
    Patrick D. McArdle, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. David Marzelle TAYLOR.
    No. 60652.
    Supreme Court of Louisiana.
    March 15, 1978.
    Jerry A. Kirby, Kirby & Anzalone, Monroe, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Brian E. Crawford, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PER CURIAM. TATE and DENNIS, JJ.,

text:
    STATE of Louisiana v. Rodney C. HAMILTON.
    No. 60669.
    Supreme Court of Louisiana.
    March 15, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, Indigent Defender Board, 24th Judicial District, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Roy F. Blondeau, Jr., Asst. Dist. Atty., Metairie, for plaintiff-appellee.
   PER CURIAM.

Defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court with instructions to sentence the defendant to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence for a period of twenty years. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); State v. Jenkins, 340 So.2d 157 (La.1976).

TATE and DENNIS, JJ.,

dissent: See State v. Gilmore, 332 So.2d 789 (La.1976).


text:
    STATE of Louisiana v. Wilda FOUCHA.
    No. 60707.
    Supreme Court of Louisiana.
    March 15, 1978.
    Lyall G. Shiell, Jr., New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Rudolph WILSON.
    No. 60709.
    Supreme Court of Louisiana.
    March 15, 1978.

      Thomas W. Mull, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Reginald AMBROSE.
    No. 60710.
    Supreme Court of Louisiana.
    March 15, 1978.
    J. Daniel Rivette, 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., Nick F. Noriea, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Theortic GIVENS.
    No. 60739.
    Supreme Court of Louisiana.
    March 15, 1978.
    Patrick D. McArdle, 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., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Anthony SCOTT.
    No. 60768.
    Supreme Court of Louisiana.
    March 15, 1978.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Rodney F. WILSON.
    No. 60807.
    Supreme Court of Louisiana.
    March 15, 1978.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Joe W. DOSS, Jr.
    No. 60846.
    Supreme Court of Louisiana.
    March 15, 1978.
    William D. O’Regan, III, LaPlace, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Melvin P. Barre, Dist. Atty., Richard Edrington, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Percy L. TATE.
    No. 60860.
    Supreme Court of Louisiana.
    March 15, 1978.
    Thomas J. Ford, Jr., 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., Nick F. Noriea, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana. v. George Andrew WILSON.
    No. 60871.
    Supreme Court of Louisiana.
    March 15, 1978.
    Bruce B. McKeithen, Lacroix & McKeithen, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Steven A. Hansen, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Marvin Glen ALEXANDER.
    No. 60872.
    Supreme Court of Louisiana.
    March 15, 1978.
    Mack J. Marsh, Davenport, Files, Kelly & Marsh, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Delia SMITH.
    No. 60905.
    Supreme Court of Louisiana.
    March 15, 1978.
    Elizabeth W. Cole, 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., Henry Julien, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Ronald BRADY.
    No. 60916.
    Supreme Court of Louisiana.
    March 15, 1978.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. George WILSON.
    No. 60925.
    Supreme Court of Louisiana.
    March 15, 1978.
    Loyola Law School Clinic, William J. O’Hara, III, Supervising Atty., Philip A. Costa, Student Practitioner, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty . Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Roy Ozell WALKER.
    No. 60945.
    Supreme Court of Louisiana.
    March 15, 1978.
    Charles E. McConnell, Indigent Defender Board, 26th Judicial District, Springhill, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., Randy D. Elkins, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Allen WILLIAMS.
    No. 60947.
    Supreme Court of Louisiana.
    March 15, 1978.
    Barry F. Viosca, 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., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Ralph MORGAN.
    No. 60950.
    Supreme Court of Louisiana.
    March 15, 1978.
    Robert J. Zibilich, 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., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Willie HUMPHREY.
    No. 60956.
    Supreme Court of Louisiana.
    March 15, 1978.
    John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Dist. Atty., Harry F. Con-nick, Dist. Atty., Joseph Roberts, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lloyd HOLLAND.
    No. 60965.
    Supreme Court of Louisiana.
    March 15, 1978.

      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 plaintiff-appellee.
   PER CURIAM.

On October 21, 1975, defendant Lloyd Holland, having previously been convicted of manslaughter and possession of heroin, was charged by bill of information with carrying a concealed weapon, in violation of La.R.S. 14:95.1. He was tried before a twelve person jury which found him guilty as charged. On December 15, the state charged that defendant was a multiple offender, subject to an enhanced penalty under La.R.S. 15:529.1. After defendant’s motion to quash the multiple offender information was denied, he pleaded guilty to the charge and was subsequently sentenced to serve 20 years at hard labor. On appeal, he contests the legality of the sentence.

Defendant aptly argues that the penalty-enhancing provisions of La.R.S. 15:529.1 were inapplicable in this case, under State v. Sanders, 337 So.2d 1131 (La.1976). In Sanders, we held:

“ * * * [T]he penalty provisions enacted in R.S. 14:95.1 were intended by the legislature to delimit the permissible punishment for that offense because the statute itself takes into account the fact of defendant’s previous felony conviction and the legislature gave no indication that it wanted the multiple-billing procedure to remain available as a vehicle for further enlargement of the penalty.” 337 So.2d at 1135.

Since defendant’s status as a prior felon subjected him to an enhanced penalty under La.R.S. 14:95.1, his sentence could not be further enlarged by application of La.R.S. 15:529.1. State v. Sanders, supra.

Accordingly, defendant’s conviction is affirmed, but his sentence is annulled and set aside. The case is remanded for resentenc-ing in accordance with law.

      . Two assignments relating to alleged trial errors were neither briefed nor argued, and are considered abandoned. State v. Russell, 352 So.2d 1289 (La.1977).


text:
    STATE of Louisiana v. Michael PORTER.
    No. 60978.
    Supreme Court of Louisiana.
    March 15, 1978.
    Earl J. Amedee, 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.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Courtney JOHNSON.
    No. 60985.
    Supreme Court of Louisiana.
    March 15, 1978.
    Vernon B. Clark, Jackson, Smith & Ford, Leesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., William E. Tilley, First Asst. Dist. Atty., Edwin L. Cabra, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Buford McDaniel.
    No. 60986.
    Supreme Court of Louisiana.
    March 15, 1978.
    F. Clay Tillman, Jr., Tillman & Mitchell, Leesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., William E. Tilley, First Asst. Dist. Atty., Edwin L. Cabra, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DIXON, J., dissents. See, La., 340 So.2d 242, 247.

CALOGERO, J., dissents.


text:
    STATE of Louisiana v. Earl TRUVIA, Jr. and Gregory Bright.
    No. 60999.
    Supreme Court of Louisiana.
    March 15, 1978.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for Gregory Bright.
    Edward A. Haggerty, Jr., New Orleans, for Earl Truvia, Jr.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: TATE, J., MARCUS, J.,

text:
    The AMERICAN ROAD INSURANCE COMPANY v. Frank MONTGOMERY et al.
    No. 61713.
    Supreme Court of Louisiana.
    March 17, 1978.
   In re: Frank Montgomery, et al applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 656.

Denied.

TATE, J.,

dissents: The highway department is solidarily liable because of its concurrent fault under La.Civ.C. art. 2317.

MARCUS, J.,

concurs in the denial. See Gallien v. Commercial Union Ins. Co., 353 So.2d 1127 (La.App. 3rd Cir. 1977) writ denied, 354 So.2d 1379 (La.1978).


text:
    Mrs. Brenda A. COURTNEY v. LAMBERT CONSTRUCTION CO. et al.
    No. 61682.
    Supreme Court of Louisiana.
    March 20, 1978.
   In re: Mrs. Brenda A. Courtney, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Ascension. 355 So.2d 72.

Writ denied. The issues are factual. On the facts found by the Court of Appeal, there is no error of law in its judgment.

TATE, J., dissents from the denial of this writ.

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

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Wayne D. JOINER, Sr.
    No. 61888.
    Supreme Court of Louisiana.
    March 23, 1978.
   In re: Wayne D. Joiner, Sr., applying for supervisory or remedial writs. Rapides Parish.

Writ granted. Bond reduced to $10,000.

SANDERS, C. J., and SUMMERS, J., dissent.


text:
    STATE of Louisiana v. Joe TERRELL, Don Wilkinson, Charles Roemer, Louis Leteff.
    No. 61854.
    Supreme Court of Louisiana.
    March 23, 1978.
   In re: State of La., through the District Attorney, applying for supervisory writs. Parish of East Baton Rouge.

Writ denied. There is insufficient showing to warrant exercise of our supervisory jurisdiction in view of alternative methods of prosecution available to the State.


author: SUMMERS, J.,

text:
    SALSUL COMPANY v. KOHLMEYER & CO., in Liquidation.
    No. 61755.
    Supreme Court of Louisiana.
    March 27, 1978.
    Rehearing Denied May 19, 1978.
   In re: Salsul Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 711.

Writ granted. Judgment of the court of appeal is reversed. Court of appeal erred in not finding that trial judge erred in failing to permit the amendment including Raymond F. Salmen and/or Succession of Raymond F. Salmen as party plaintiff. La. Code Civ.P. art. 934. Case remanded to trial court for further proceedings according to law and consistent with views herein expressed.

SUMMERS, J.,

concurs. While I agree that Salmen’s Succession should be made a party on the basis of this application, I must persist in my position that deciding the merits of such a question in chambers without a hearing by which the adverse parties can be heard, involves the denial of due process.


text:
    STATE of Louisiana ex rel. Lawrence WATKINS v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 61791.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Lawrence Watkins, applying for writ of certiorari. Parish of Orleans.

Granted. The application is remanded to the trial court to consider the allegation of ineffective counsel. In view of the decision on appeal in State v. Watkins, La., 345 So.2d 45, the prayer for an out of time appeal is moot.


text:
    STATE of Louisiana v. Lester JACKSON.
    No. 61652.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Lester Jackson, applying for writs of certiorari, mandamus and habeas corpus. Rapides Parish.

Writ granted: Out-of-Time appeal ordered.

SANDERS, C. J., and SUMMERS, J., dissent from the order.


text:
    STATE of Louisiana v. Raymond R. SLACK.
    No. 61750.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Raymond R. Slack applying for writs of review. Beauregard Parish.

Writ granted. An out of time appeal is ordered.

DIXON and MARCUS, JJ., dissent.


text:
    Robert BOENIG v. HOUSTON GENERAL INSURANCE COMPANY.
    No. 61727.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Houston General Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline.

Writ denied.

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


text:
    STATE of Louisiana v. Michael BEEBE.
    No. 61787.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Michael Beebe applying for writs of review and stay order. Parish of Terre-bonne.

Writ denied.

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


text:
    STATE of Louisiana ex rel. Jesse McGEE, Jr. v. STATE of Louisiana, C. Paul Phelps, Director, Dept. of Corrections, Charles Foti, Sheriff, Orleans Parish Prison.
    No. 61792.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Jesse McGee, Jr., applying for writ of habeas corpus. Parish of Orleans.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Arthur C. YOUNGBLOOD v. Bernard J. BAGERT, Sr., Judge Criminal District Court, Parish of Orleans.
    No. 61794.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Arthur C. Youngblood applying for remedial writs. Parish of Orleans.

Writ denied. When and if a post-conviction proceeding is filed, the courts will consider the transcript of the appeal.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    GLOBE PLUMBING, HEATING AND AIR CONDITIONING CO. v. ROUSSEL-HART CONTRACTORS. ROUSSEL-HART CONTRACTORS v. The HOUSING AUTHORITY of the TOWN OF WHITE CASTLE, Louisiana.
    No. 61771.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Globe Plumbing, Heating and Air Conditioning Co., applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Iberville. 354 So.2d 1055.

Writ denied.

TATE and CALOGERO, JJ., would grant the writ.


text:
    GLOBE PLUMBING, HEATING AND AIR CONDITIONING COMPANY v. ROUSSEL-HART CONTRACTORS. ROUSSEL-HART CONTRACTORS v. The HOUSING AUTHORITY of the TOWN OF WHITE CASTLE, Louisiana.
    No. 61705.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: The Housing Authority of the Town of White Castle, Louisiana applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Iberville. 354 So.2d 1055.

Writ denied.

TATE and CALOGERO, JJ., would grant the writ.


text:
    Ms. Eddie P. THEARD et al. v. LOUISIANA HEALTH AND HUMAN RESOURCES DIVISION OF FAMILY SERVICES, NEW ORLEANS, La.
    No. 61749.
    Supreme Court of Louisiana.
    March 27, 1978.
    Rehearing Denied April 28, 1978.
   In re: Ms. Eddie P. Theard, et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. (Civil Service Commission). 354 So.2d 663.

Writ granted. Judgment of the court of appeal is reversed. Plaintiffs appeal before the Louisiana Civil Service Commission is reinstated.

SUMMERS, J.,

dissents. I cannot agree with their ex parte orders whereby the court determines the merits of writ applications and renders judgment in chambers without granting the opposing party a hearing. A fundamental denial of due process is involved.


text:
    Albert ROBERTSON et al. v. Inetha HANDY et al.
    No. 61669.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: City of Bogalusa applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 354 So.2d 626.

Writ denied.

SUMMERS, DIXON and CALOGERO, JJ., are of the opinion that a writ should be granted.


text:
    Eula V. FOLLINS, Individually and on Behalf of the minor Edris Follins v. Lazzard BARROW et al.
    No. 61769.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Eula V. Follins, Ind., etc., et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 609.

Denied.

SANDERS, C. J., and TATE, J., would grant the writ.


text:
    The AMERICAN ROAD INSURANCE COMPANY v. Frank MONTGOMERY et al.
    No. 61855.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Shirley Callender, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 656.

Writ denied.

TATE, J., would grant the writ.


text:
    The AMERICAN ROAD INSURANCE COMPANY v. Frank MONTGOMERY et al.
    No. 61831.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: American Road Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 656.

Writ denied.

TATE, J., would grant the writ.


text:
    STATE of Louisiana v. Christopher L. DILIBERTO.
    No. 61777.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: State of Louisiana through Harry F. Connick, D.A., Parish of Orleans applying for Writs of certiorari, prohibition, mandamus.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Frank A. Marullo, Jr. Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 10th day of April, 1978, 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 a date to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.


text:
    Sherman A. BERNARD, Ancillary Receiver, Mobile Insurance Company in Receivership v. BRINKLEY & WEST, INC.
    No. 61737.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Sherman A. Bernard applying for a stay order.

Writ granted.

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:
    Doris BONADONA v. Mary Viola Collins GUCCIONE, Leroy E. Kane and Mary F. Kane, Individually, and Mary Viola Collins Guccione, Leroy E. Kane and Mary F. Kane, d/b/a Deluxe Motel, and the Travelers Ins. Co.
    No. 61734.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Doris Bonadona applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 715.

Writ granted.

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:
    Leona SANDERS, as Administratrix of the Estate of her Minor Son Darryl Sanders v. STATE FARM INSURANCE COMPANIES et al.
    No. 61779.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Leona Sanders applying for Cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 663.

Writ denied.


text:
    Carl T. JEANSONNE v. PARISH OF EAST BATON ROUGE.
    No. 61733.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Carl T. Jeansonne applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 619.

Denied.


text:
    Aaron Lester SARPY v. Theresa Locicero SARPY.
    No. 61745.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Aaron Lester Sarpy applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 354 So.2d 572.

Writ denied. Judgment not final.


text:
    STATE of Louisiana v. Richard Lee LIGGETT.
    No. 61788.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Richard Lee Liggett applying for writs of review and habeas corpus. Parish of Tangipahoa.

Treating appeal as a writ, writ is denied.


text:
    STATE of Louisiana v. Major L. GAY.
    No. 61768.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Major L. Gay, applying for remedial writs of certiorari, prohibition and mandamus. Parish of Ouachita.

Writ denied. Adequate remedy for review in the event of conviction.


text:
    STATE of Louisiana v. Robert ROBINSON.
    No. 61767.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Robert Robinson, applying for writs of certiorari. Parish of Ouachita.

Writ denied.


text:
    Helen FAIRCHILD and Russell Fairchild v. C. Verne BRIAN et al.
    No. 61759.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: C. Verne Brian, Stanocola Employees Medical and Hospital Assoc, and St. Paul Fire & Marine Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Douglas COODY, R. Ernest Cullpepper v. 2ND JUDICIAL DISTRICT COURT, PARISH OF BIENVILLE.
    No. 61757.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Douglas Coody, R. Ernest Cullpep-per applying for Writs of Mandamus, Prohibition and other Remedial Writs. Bienville Parish.

Writ denied in view of return showing that matter will be taken up Tuesday, March 28, 1978.


text:
    STATE of Louisiana ex rel. Dallas John BADON v. C. Paul PHELPS, Secretary, Dept. of Corrections, Baton Rouge, La.
    No. 61754.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Dallas John Badon applying for Writ of Habeas Corpus. St. Martin Parish.

Writ denied.


text:
    STATE of Louisiana v. Joel Wayne GARY.
    No. 61671.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Joel Wayne Gary applying for writ of review and certiorari. East Carroll Parish.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Jim Willie GARY.
    No. 61670.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Jim Willie Gary applying for writ of review and certiorari. Parish of East Carroll.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. William MALMAY.
    No. 61603.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Amended application for writs. Parish of Sabine.

Denied.


text:
    James Edward NAPIER, Sr., and Walter Bruce Gatewood v. Alwynn J. CRONVICH, Sheriff of Jefferson Parish and Warden of Jefferson Parish Prison.
    No. 61245.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: James Edward Napier, Sr. and Walter Bruce Gatewood v. Alwynn J. Cronvich, Sheriff of Jeff. Parish and Warden of Jefferson Parish Prison, applying for writ of mandamus. Parish of Jefferson.

Writ granted. It is ordered that the trial judge appoint an attorney to assist relator in connection with preparation of his appeal.


text:
    GARDEN HILL LAND CORPORATION v. Succession of Edwin CAMBRE et al.
    No. 61841.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Renette Maria Cambre applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist. 354 So.2d 1064.

Denied.


text:
    GARDEN HILL LAND CORPORATION v. Succession of Edwin CAMBRE et al.
    No. 61746.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Kenneth V. Ward applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist. 354 So.2d 1064.

Denied.


text:
    Lloyd JESSIE et al. v. FIRESTONE TIRE & RUBBER CO. et al.
    No. 61783.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Gulf Insurance Co., General Motors Corporation & Interstate Fire & Casualty Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 354 So.2d 701.

Writ denied.


text:
    Winston C. BABER v. Peggy Jean Sharp Chappuis BABER.
    No. 61760.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Winston C. Baber applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 354 So.2d 699.

Writ denied.


text:
    JUBAN PROPERTIES, LTD. v. Robert G. CLAITOR.
    No. 61786.
    Supreme Court of Louisiana.
    March 27, 1978.
   In re: Robert G. Claitor, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 672.

Denied.


author: EDWARDS, Judge.

text:
    CONSOLIDATION LOANS, INC. v. Russell A. GUERCIO et al.
    No. 11184.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Michael W. McKay, Baton Rouge, of counsel for plaintiff-appellant Consolidation Loans, Inc.
    John R. Keogh and Stephen Wilson, Baton Rouge, of counsel for defendant-appel-lee Russell A. Guercio, et al.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit by Consolidation Loans, Inc. to revive a judgment on a promissory note against Russell A. Guercio and Helen Klie-bert Guercio. The trial court sustained the defendants’ peremptory exception of prescription and dismissed the suit. From this dismissal, plaintiff has brought this appeal.

The central issue presented by this appeal concerns the time from which the 10 year liberative prescription on money judgments begins to accrue in a case where an appellate court initially reverses the trial court and renders its own judgment, but subsequently on rehearing the appellate decision is changed and the trial court’s decision is affirmed.

Consolidation Loans, Inc., made a loan to Russell and Helen Guercio in the amount of $4,500.00, evidenced by a promissory note dated April 30,1963. This loan was secured by a mortgage on certain property owned by Mr. and Mrs. Guercio. After the Guer-cios fell delinquent on their payments, Consolidation instituted a foreclosure proceeding, which resulted in a Sheriff’s sale of the property. On July 31, 1964, Consolidation filed suit against Mr. and Mrs. Guercio on their promissory note for a deficiency judgment. Judgment in favor of Consolidation was signed February 9, 1966.

From this judgment, Mrs. Guercio, judicially separated from her husband, perfected an appeal to this Court. Consolidation Loans, Inc. v. Guercio, et al., 200 So.2d 717 (La.App. 1st Cir. 1966). The judgment of the trial court was reversed on original hearing due to the nullity of the executory process proceedings and the Sheriff Sale held pursuant thereto. On rehearing, a supplemental transcript of the trial court proceedings was introduced, which clearly showed that Mrs. Guercio had received notice of the executory proceeding sufficient to maintain its validity. Accordingly, the Court of Appeal reversed the decree issued on the original appeal and affirmed the judgment of the trial court.

The present suit to revive the judgment against Mr. and Mrs. Guercio was filed June 28, 1976. This is more than ten years from the signing of the judgment by the trial court, but less than ten years from the affirmation of the judgment by the Court of Appeal. Consolidation has conceded that the revival action is prescribed as to Mr. Guercio since he did not appeal the deficiency judgment. However, Consolidation maintains that the revival action has not prescribed as to Mrs. Guercio.

The prescriptive period applicable to money judgments is ten years, as stated in Civil Code article 3547. Originally, this article stated that the period began to run from the rendition of the judgment, but the article was amended in 1960 to base the commencement of the ten year period on readily ascertainable dates.

LSA-C.C. art. 3547 (as amended Acts 1960, No. 30, Sec. 1) now provides in pertinent parts:

“A money judgment rendered by a court of this state is prescribed by the lapse of ten years from its signing, if rendered by a trial court, or from its rendition if rendered by an appellate court .
Any party having an interest in a money judgment may have it revived before it prescribes . . . ”

A trial court judgment is unaffected by subsequent appeals insofar as the ten-year prescription on money judgments is concerned, provided the judgment is affirmed on appeal. Bailey v. Louisiana & Northwest Rail Co., 159 La. 576, 105 So. 626 (1925). This was not changed by the 1960 amendment to Civil Code article 3547. The date on which the trial court judgment is signed starts the ten-year period of LSA-C.C. art. 3547, except in instances where the appellate court amends or reverses the trial judgment, and renders its own judgment on the appeal.

A decree issued by a Court of Appeal on original hearing is not a final judgment until after the case is disposed of on rehearing, if a rehearing is granted. LSA-C.C.P. arts 2166, 2167. In these instances the decree on original hearing is suspended and becomes final by virtue of affirmation on rehearing. However, if the original decree is modified or reversed on rehearing it never attains the status of a final judgment. The decree on rehearing is always the final pronouncement by the Court of Appeal and necessarily supercedes the original decree. The rehearing decree is a final judgment.

The term “judgment” in LSA-C.C. art. 3547 necessarily contemplates a final judgment, though an appeal may still lie from the judgment. The only final judgment rendered in the instant case was the judgment of the trial court, though it was affirmed on appeal. Therefore, the ten-year prescription runs from February 9, 1966, the date the judgment was signed in the trial court, and the prescriptive period had run when the present suit to revive was instituted on June 28, 1976.

The peremptory exception of prescription was properly sustained.

For the foregoing reasons, the decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Gerald J. FRYOU v. Jean P. EMMONS et al.
    No. 10910.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Alan J. Robert, Donaldsonville, of counsel, for plaintiff-appellant.
    Ralph Brewer, Baton Rouge, of counsel, for defendant-appellee Roma Marie Hernandez Emmons.
    Michael Roy Fugler, Baton Rouge, of counsel, for defendant-appellee First Nat. Bank of Port Allen.
    J. Glen Dupree, Baton Rouge, of counsel, for defendants-appellees Courtesy Finance and Miller-Terrell, Inc.
    David A. Hamilton, Baton Rouge, of counsel, for defendant-appellee King Louis Intern.
   En banc rehearing:

EDWARDS, Judge.

At the reargument counsel for all parties conceded that Gerald J. Fryou no longer had any ownership interest in the property. Therefore, his appeal, seeking a declaratory judgment concerning his rights in the property, is moot.

Therefore, the appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.


author: PONDER, Judge.

text:
    Daniel A. OLIVER v. MILLIKEN AND FARWELL, INC., et al.
    No. 11731.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 8, 1977.

      Ashton L. Stewart, Baton Rouge, for appellant.
    Victor A. Sachse, Jr., Victor A. Sachse, III, Baton Rouge, Nat P. Phillips, Jr., New Orleans, for appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

On June 9, 1977, the trial court signed a judgment accepting a survey report and map on some undivided alluvion. Willie Davis, a defendant, filed a motion for a new trial on June 20. Daniel A. Oliver, plaintiff, filed a similar motion on June 22, and then filed an appeal and bond on July 18. Milliken and Farwell, Inc., a defendant, moves to dismiss plaintiff’s appeal as being premature.

We dismiss.

The motion for a new trial filed by Davis was timely. While there is some divergence of jurisprudence, we agree with the statement in Thibodeaux v. Lock Clinic, 322 So.2d 805 (La.App., 4th Cir., 1974), that “. . . Motion for new trial by one

party ordinarily does not extend another’s delay for appealing, unless the nature of the proceeding is such that one party’s motion prevents the judgment from becoming final as to another; Thurman v. Star Electric Supply, Inc., La.1973, 283 So.2d 212.”

As we understand the facts, a change in the judgment as to Davis, if a new trial be granted would almost inevitably affect the judgment as to all other parties. We therefore hold that the timely motion by Davis suspends the operation of the judgment.

We need not, therefore, consider the effect of the motion filed by plaintiff on June 22.

The appeal is dismissed.


author: CHIASSON, Judge.

text:
    Linda Marie SMITH v. David L. SMITH.
    No. 11618.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 28, 1977.
    Glenn R. Ducote, Baton Rouge, of counsel for plaintiff-appellee, Linda Marie Smith.
    John W. deGravelles, Baton Rouge, of counsel for defendant-appellant, David L. Smith.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This appeal was fixed for argument and all attorneys of record and the appellant in proper person were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: LANDRY, Judge.

text:
    Vera Dean CARTER v. Frank ALEXIS et al.
    No. 11562.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Edward Walters, Jr., Baton Rouge, of counsel for plaintiff-appellant, Vera Dean Carter.
    Richard B. Nevils, Baton Rouge, of counsel for defendant-appellee, Frank Alexis, et al.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment dismissing her claim for personal injuries sustained when riding as guest passenger in an automobile involved in an inter-sectional collision. Appellant’s host driver was John Alexander, Jr., whose vehicle was struck by a car driven by Frank Alexis, owned by Alexis’ brother Wayne Alexis and insured by American International Insurance Company (American). The Alexis brothers and American are named defendants. The trial court found Frank Alexis free of negligence contributing to the accident despite evidence of his having an alcoholic blood content in excess of the legal limit, and also found that Alexis did not have the last clear chance to avoid the accident. We affirm.

The accident occurred at approximately 11:00 P.M. December 6, 1975, at the intersection of Fairchild Avenue (an east-west street) and U. S. Highway 61, Scenic Highway (Scenic), a superior four lane highway. The north and southbound lanes of Scenic are separated by a raised median not crossed easily by an automobile. Alexander was proceeding west on Fairchild; Alexis was traveling north in the inside northbound lane of Scenic. When Alexander reached the intersection he encountered a stalled vehicle parked at the curb on Fair-child at the junction. He went around the parked vehicle, stopped at the intersection in obedience to a stop sign, looked in both directions, did not see a vehicle approaching from either direction, and proceeded into the intersection intending to make a left turn and travel south on Scenic. He did not see the Alexis vehicle prior to impact. As he was turning left in the break in the median at the crossing, and was partly in the inside northbound lane of Scenic, his vehicle was struck on its left side by the Alexis vehicle.

The Alexis vehicle left 93 feet of skid marks all in the inside northbound lane of Scenic, prior to the point of impact. After the impact, Alexis’ automobile traveled 21 feet; the Alexander car spun a distance of about 50 feet.

The lawful speed limit in the area was 40 miles per hour. Alexis testified he was traveling at about 40 miles per hour when he noted the other vehicle entering the intersection. He applied his brakes, but could not avoid the collision. He conceded he did not attempt to swerve his car.

Appellant contended below, and reurges here, that Alexis was driving with his lights off; that he was intoxicated to the extent his driving ability was impaired; and that he failed to take the last clear chance of avoiding the accident by not swerving his vehicle in the time and space intervening when he applied his brakes and the occurrence of impact.

The testimony concerning lights is conflicting. Appellant and her host testified they saw no lights and that Alexis was driving without lights. Alexis maintained his lights were burning.

At about 1:00 P.M. on the day of the accident, the Alexis brothers and a cousin purchased a fifth of scotch whisky, preparatory to embarking on a shopping expedition. At approximately 5:30 P.M., they had consumed approximately one-half of the whisky and decided to get something to eat before Wayne Alexis reported for work that night. Frank Alexis partook of a cheeseburger, french fries and a coca cola, following which he consumed the remainder of a drink he started before his meal. Alexis testified that after this, he did not drink any more alcohol and that in all, during the afternoon, he had consumed two or three drinks. He maintained that after eating, the remaining half-bottle of whisky was left in his brother’s car where it was at the time of the accident. He conceded being a “little high” but denied he was intoxicated. At 9:30 P.M. Frank Alexis dropped his brother off at work and then proceeded to Baton Rouge approximately 50 miles distant. He was en route to this destination, Southern University, at the time of the accident.

The investigating officer noted a moderate odor of alcohol on Frank Alexis at the scene. He also noted a slight impairment of speech. At his request, Alexis voluntarily took a breath test which resulted in a reading of 0.139 blood alcohol content, the legal limit being 0.10. La.R.S. 32:662. He also requested that Alexis take a field sobriety test, to which Alexis readily consented. During the test Alexis was most cooperative. The test consisted of walking and turning, walking heel to toe, finger to nose and balance test. The officer noted that Alexis did well on all tests except the turning test on which he exhibited a slight degree of unsteadiness. Alexis was issued a ticket for driving while intoxicated.

The trial court concluded that Alexis was driving with his lights on and that Alexander negligently entered the intersection when Alexis was so near it was impossible for even a sober driver to avoid a collision. He also found Alexis did not have the last clear chance to avoid the accident because the median prevented Alexis from swerving to the left and that Alexis’ failure to swerve to the right following application of his brakes was not a want of care on Alexis’ part under the circumstance.

Appellant attacks the factual findings of the trial court on the grounds that the alcoholic content of Alexis’ blood belies his testimony concerning the amount of alcohol consumed, therefore Alexis’ testimony should be rejected in to to. Appellant also contends the physical facts do not support the trial court’s findings that Alexis was traveling only 40 miles per hour; that the amount of alcohol consumed did not impair Alexis’ driving ability; and that Alexis did not have the last clear chance to avoid the accident.

In support of these contentions, Appellant cites and relies upon Prestenbach v. Sentry Insurance Company, 340 So.2d 1331 (La.1976); Thibodeaux v. Lock Clinic, 303 So.2d 570 (La.App. 4th Cir. 1974); and Travelers Indemnity Company v. Ben, 269 So.2d 553 (La.App. 1st Cir. 1972).

Whether intoxication is a contributing cause of an accident must be determined in the light of the circumstances of each particular case. The mere showing that one has imbibed alcohol prior to involvement in an automobile accident does not per se establish negligence contributing to the accident. Sedotal v. Gaspard, 207 So.2d 849 (La.App. 1st Cir. 1968); Bodan v. American Employers' Insurance Company, 160 So.2d 410 (La.App. 2d Cir. 1964).

In this instance, the trial court expressly found that a driver who had imbibed no alcohol whatsoever could not have avoided the accident because Appellant pulled onto the favored highway when it was patently unsafe to do so. In short, the trial court held that Alexis’ alcoholic consumption did not contribute to the accident. We find no manifest error in this conclusion. On the contrary, we find this determination supported by the evidence. Accordingly, we affirm this finding. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We also find no error whatsoever in the trial court’s holding that Alexis did not fail to take advantage of the last clear chance to avoid the accident by swerving his vehicle during the interval between application of his brakes and the occurrence of the impact. As noted above, Alexis could not have veered to his left because of the median present. He acted as a reasonably prudent individual in applying his brakes in an effort to avoid a vehicle that was invading his lane of travel. Once his car began to skid after application of brakes, his degree of control was considerably lessened and his ability to veer to the right considerably reduced. Failing to veer to the right, under the circumstances does not establish his failure to exercise a last clear chance to avoid the accident.

The judgment is affirmed at Appellant’s cost.

Affirmed.


author: SARTAIN, Judge.

text:
    Phillip R. FRICKIE, Plaintiff-Appellant, v. Cecil H. SCARBROUGH et al., Defendants-Appellees.
    No. 11569.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Richard E. Burton, Baton Rouge, of counsel, for plaintiff-appellant Phillip R. Frickie.
    David W. Robinson, John B. Noland, Baton Rouge, of counsel, for defendants-appel-lees Cecil H. Scarbrough, et al.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

The sole issue presented on this appeal is one of quantum. For an injury sustained in an automobile accident which occurred on August 29, 1975, plaintiff was awarded the sums of-$6,000.00 for general damages and $2,420.08 for special damages. It is from this judgment that plaintiff has appealed. We affirm.

In his written reasons for judgment, the trial judge stated:

“Expert medical testimony indicates that the plaintiff sustained personal injuries consisting of multiple contusions, abrasions and lacerations, cerebral concussion, multiple right rib fractures, and atelectasis of the left lower lobe as a result of the accident. The plaintiff was hospitalized for eight days. The testimony of Dr. Perry Chesney indicates that Mr. Frickie made a complete recovery from these injuries by November 7, 1975, sustaining only a large scar on his scalp.
“Dr. Chesney further testified that the plaintiff had a heart condition before the accident but that such condition did not serve to complicate the treatment of Mr. Frickie. Dr. Chesney did state, however, that the treatment administered to the plaintiff for the atelectasis condition is uncomfortable.
“The plaintiff also consulted Dr. Cox, an ear, nose and throat specialist, with complaints of hoarseness and pain in swallowing. Dr. Cox testified that Mr. Frickie had sustained a moderately severe injury to the larynx as a result of the collision. This condition was treated and has subsided with no expectation of further disability.
“The plaintiff also alleges that he suffered the loss of one of his teeth as a result of the collision. This tooth was extracted on October 30, 1975. The testimony of Dr. Cefalu, the plaintiffs dentist, indicated that Mr. Frickie was suffering from extensive peridontal disease prior to the accident. Looseness and/or loss of teeth is normally associated with this disease. Dr. Cefalu’s testimony was to the effect that it was possible that this tooth would have been extracted anyway and it was'also possible that the automobile accident forced extraction at an earlier date.
“The plaintiff was suffering from a heart condition prior to the accident, as noted earlier. Dr. Mack testified that after the accident, a change was noted in Mr. Frickie’s angina pattern, which is merely a subjective reaction to pain. Such change was, in the opinion of Dr. Mack, caused by both the accident and increase in the plaintiff’s age.
“The testimony of the plaintiff himself, as well as that of Gerald Long, a personal friend of the plaintiff, indicated that since the accident, plaintiff is no longer as physically active as he used to be.
“Considering the medical testimony, it appears that the plaintiff initially suffered substantial injuries from which he had essentially recovered within a period of three months. His own testimony shows concern and apprehension regarding his physical condition as the injuries relate to his long-standing heart condition. While the medical evidence does not indicate any appreciable aggravation of his heart condition, the Court is inclined to believe that the injuries may have occasioned him some physical and mental distress. For these injuries, the Court believes the sum of $6,000.00 is adequate compensation. His special damages as noted above amount to $2,420.08.”

For the purpose of showing the impropriety of the award for personal injuries, plaintiff has cited numerous cases involving single injuries where the awards ranged from one to nine thousand dollars. While he does not advocate that a specific sum should be awarded for each type of injury he sustained, he does contend that the amount awarded for the totality of all of his injuries evidences a clear case of an abuse of discretion.

While we are of the opinion that the amount of $6,000.00 awarded plaintiff in the instant case is very definitely in the low range, we do not find that it constitutes an abuse of discretion vested in the trial court. C.C. Art. 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Finally, plaintiff notes that the judgment signed by the trial judge fails to provide legal interest on the sum awarded. This is obviously an oversight and should be corrected.

Accordingly, for the above reasons, the judgment appealed is amended to provide legal interest thereon from date of judicial demand until paid and in all other respects is affirmed at defendants-appellees’ costs.

AS AMENDED AFFIRMED.


text:
    Louis EDWARDS, Plaintiff-Appellee, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant-Appellant.
    No. 11572.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      Neville G. Orrett, New Orleans, for plaintiff-appellee.
    Harry D. Hoskins, New Orleans, for defendant-appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff Louis Edwards brought this action against his automobile insurer, Government Employees Insurance Company, for injuries to his right arm sustained when his wife, while driving his car, ran over an exhaust pipe lying in the road. The trial court found that the injuries sustained by plaintiff were caused by the negligence of his wife, Evelyn Edwards, an omnibus insured under plaintiffs policy. Judgment was therefore given in his favor. We affirm as to liability.

On September 11, 1972, plaintiff was riding in the passenger seat of his family car which was being driven by his wife. His son, Louis Edwards, Jr., was seated between him and his wife. Kathy Ann and Cynthia Edwards were seated in the rear seat. Mr. Edwards was resting his right arm on the sill of the open window of the front door. As they approached the intersection of Airline Highway and La. Hwy. 22, intending to turn left, Mr. Edwards, Louis and Cynthia saw a tail pipe lying in the road. (Kathy Ann was asleep.) Believing that Mrs. Edwards had seen the pipe, they did not warn her immediately. However, when it became apparent to Louis that his mother had not seen the pipe, he yelled, “Look out for the pipe.” The warning came too late. Although Mrs. Edwards jerked the car to the left, she still ran over the pipe. The pipe was thrown up on the right side of the car where it severely lacerated Mr. Edwards’ arm, cutting deeply into the elbow joint.

Mrs. Edwards then rushed her husband to a nearby hospital. Louis, at his father’s instruction, made a crude tourniquet on the way which stopped the bleeding. The plaintiff was seen by Dr. M. Y. Hirsch in the emergency room of the hospital. Dr. Hirsch cleaned, debrided, and sutured the wound using over sixty stitches. Because of the loss of blood and the possibility of infection, Mr. Edwards was admitted to the hospital. He remained in the hospital for five days because he developed some fever.

The trial court found-that Mrs. Edwards was negligent in failing to see and avoid the pipe. Her attention was apparently directed to the signal light at the intersection. The proximity of the traffic light did not relieve Mrs. Edwards of her duty to ascertain whether her course of travel was free from danger and obstructions. “An automobile driver can easily keep his eyes so focused as to be able to tell whether the road is safe and, at the same time, be on the lookout for other traffic or curves in the road.” Arceneaux v. Louisiana Highway Commission, 15 So.2d 638, 640-641 (La.App.Orl. Cir. 1943). Visibility was good at the time of the accident. All the awake passengers saw the pipe. The trial court found this fact very significant. We do also. If the passengers saw the pipe without difficulty, Mrs. Edwards should have also seen it.

Defendant contends that even if Mrs. Edwards were negligent, plaintiff is barred from recovery by his own contributory negligence. However, we agree with the trial court that Mr. Edwards was not negligent. Although a passenger has a duty to warn the driver of dangers known to him which are apparently unknown to the driver, “a guest is under no duty to supervise the driving of the vehicle and he is not obliged to look out for sudden or unexpected dangers that may arise.” White v. State Farm Mutual Automobile Insurance Co., 222 La. 994, 64 So.2d 245, 249 (1953). Here Mr. Edwards believed his wife was aware of the pipe, therefore he was not negligent in not warning her.

The defendant argues that as an owner-passenger plaintiff was under a greater duty. However, absent unusual circumstances or particular facts, an owner-passenger has the same duty as any other passenger. Williams v. State Farm Insurance Co., 273 So.2d 680 (La.App. 1st Cir. 1973). Defendant has not shown any such unusual circumstances in this case.

On the question of quantum the trial judge awarded plaintiff the sum of $5,000.00 for general damages. Included in this sum was compensation for a residual disability of twenty-five percent of the function of the right arm. Defendant contends that the plaintiff has failed to prove a causal relationship between the injuries and this disability. We must agree.

Dr. Hirsch, plaintiff’s initial treating physician, was not called to testify. His report of May 31, 1973, was introduced by stipulation in lieu of his appearance. In his report he states:

“. . .On the date of discharge, the patient was completely afebrile and there was no evidence of infection of the wound. He was seen again for follow up on the 19th of Sept, at which time the wound again looked good. He had good function in his hand, intact sensation and had no complaints. He was seen again on Sept. 21 and the sutures were removed and the wound looked completely healed and well. No evidence of infection. There was intact function of the hand and arm. Good strength at the elbow and complete motion of the elbow. No sensory deficits. The patient was apparently pleased with the repair. It was my opinion at that time that he should have an excellent result without sequela. I have not seen the patient since that time and I must assume he has done well.”

Following his discharge by Dr. Hirsch on September 21,1972, plaintiff went to Dr. G. Gernon Brown, an expert in orthopedic surgery, on December 13, 1972. Dr. Brown treated plaintiff until August 17, 1973. On the occasion of plaintiff’s last visit to Dr. Brown the latter noted that plaintiff’s right arm could be flexed to sixty degrees and extended to one hundred sixty degrees, an improvement over the first observation of flexion to ninety degrees and extension to fifty-five degrees.

In his written reasons for judgment, the trial judge evaluated the testimony of Dr. Brown thusly:

“In referring to the deposition of Dr. Brown, we observe that he concluded, that it was more likely that the impairment would have resulted from some other cause, but he does not completely rule out the accident as a cause of the impairment. There is no hint or suggestion that the patient was feigning an injury or impairment.
“This Court takes into consideration the fact that the plaintiff suffered an impairment which the Doctor concludes could have been a result of the accident. The Court also considers the fact that his arm was showing some improvement on the occasion of his visit on August 17, 1973. The Court also observes that at the time of the trial on December 14, 1976, the plaintiff was still suffering from some limitation of movement in his right arm. Although we conclude, at this time, because of his occupation it was not a disabling consequence, it was rather an injury to be considered as part of the general damage suffered by the plaintiff.” (Emphasis ours.)

We agree that the above statement is a fair evaluation of Dr. Brown’s testimony but it falls short of the legal requirement of proof of a causal relationship between the initial injury and the alleged disability. While Dr. Brown does not “rule out the accident” as a cause-in-fact of the disability, he places this consequence as nothing more than a “possibility.” He does not, in our judgment, even go so far as concluding that it was a reasonable possibility.

Based on the hypothetical facts as set forth in Dr. Hirsch’s report, above, Dr. Brown deposed:

“Q But the most important thing, though, Doctor, is assume that the treating physician says that the man has good strength at the elbow and range of motion. Isn’t your answer, as to the cause of his disability, isn’t your answer that it would be other than this accident?
A It is more likely that some other factor has, which I don’t know about, intervened.

The above quote is a concise summary of Dr. Brown’s entire deposition. At no point does he raise the consequence of the initial injury, vis a vis, the alleged disability to that of more than a “possibility.” While various phrases have been used by the courts to set a standard of proof necessary to establish a causal relationship between an initial injury and a resulting disability, i. e., “more reasonable than not”, “more probable than not”, “a reasonable probability”, etc., the courts have constantly rejected unsupported possibilities. We must, therefore, hold that plaintiff has failed to prove that the alleged disability was in fact caused by the accident.

As noted above, the trial judge included in his award of $5,000.00 for general damages the claimed disability. We think that a reduction in the award of $1500.00 is appropriate under the circumstances.

Accordingly, for the above reasons, the judgment of the district court is amended by reducing the total award therein from the sum of $5,120.00 to the sum of $3,620.00. In all other respects, the judgment appealed is affirmed at defendant’s costs.

AFFIRMED AS AMENDED.


author: SARTAIN, Judge. LANDRY, Judge,

text:
    Edward Lee DAVIS, Plaintiff-Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS, Defendant-Appellee.
    No. 11573.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.

      James A. Wood, Baton Rouge, of counsel, for plaintiff-appellant Edward Lee Davis.
    Patrick J. Briney, Dept, of Justice, Baton Rouge, of counsel, for defendant-appellee State of La., Through the Dept, of Corrections.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

The plaintiff, Edward Lee Davis, is presently an inmate at Louisiana State Penitentiary. While sleeping, he was stabbed by his cellmate, William Vanzant, on March 10, 1975. He alleges the negligence of the penal authorities allowed the assault to occur and that, therefore, the state should compensate him for his serious injuries. The trial court found that there was no negligence and held for the defendant. We affirm.

The first question for our determination is what test of negligence is to be applied. The rule in cases of this type has often been stated as follows:

“A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm.” Parker v. State, 282 So.2d 483, 486 (La.1973).

In the case of Breaux v. State, 314 So.2d 449 (La.App. 1st Cir. 1975) a five judge panel of this circuit, while not rejecting the test of Parker, developed a separate test for determining the liability of the state. The court held that “the State is obligated to provide facilities and environments reasonably calculated to protect such persons from the danger of armed attack by fellow inmates.” Breaux, supra, at 457. When such facilities are not provided and the lack thereof causes injury to an inmate the state must respond in damages. On appeal the Supreme Court affirmed. Breaux v. State, 326 So.2d 481 (La.1976). However, the decision there was based on the Parker test; consideration of the test developed in Breaux was pretermitted.

Plaintiff urges that we should apply the broader test of Breaux in reaching our decision. Recently, however, our circuit has rejected Breaux and returned to the test of the earlier jurisprudence. Williams v. State, Through Department of Corrections, 351 So.2d 1273 (La.App. 1st Cir. 1977) (our docket no. 11,521); Jones v. State, Through Department of Institutions, 346 So.2d 807 (La.App. 1st Cir. 1977) writ refused, 350 So.2d 671 (La.1977); Walker v. State, Through Department of Corrections, 346 So.2d 794 (La.App. 1st Cir. 1977) writ refused Sept. 21, 1977, 349 So.2d 879 (La.1977). We likewise reject the intermediate decision in Breaux, a decision which stands alone in the jurisprudence, and reaffirm the more recent jurisprudence of this circuit.

The facts of this case can briefly be stated. The plaintiff Davis was transferred to the maximum security area (where he was stabbed) in December of 1974. The change in custody was the result of a procedurally improper hearing before the Disciplinary Board. Davis lived in the cell with Vanzant from December until the stabbing (March 10, 1975) with no apparent friction shown between them. Davis requested on several occasions to be moved from his cell with Vanzant. He gave as his reason that there was “bad blood” between them and that he would prefer to have a different cellmate. He wished to be with a friend of his rather than with a stranger with whom he did not see eye to eye.

In his oral reasons for judgment, the trial judge stated: (R. 38)

“The facts surrounding the stabbing, itself, are not really at issue and all of the witnesses and plaintiff, including his four witnesses, have told approximately the same version of the incident. The State hasn’t rebutted that or contradicted that version of the accident. Apparently, the stabbing incident took place in the early hours of the morning. Vanzant and Davis had gambled earlier that day and apparently plaintiff had won most of Vanzant’s belongings and had actually given one pair of socks that he had won to another inmate who was confined in a nearby cell.
“Plaintiff did testify that he didn’t feel that gambling was the motive for his stabbing. I don’t know if it was or not. I know it definitely leaves this Court with the impression that Davis wasn’t the least bit afraid of Vanzant. He had won all, or practically all, of his clothes. In fact, Davis has admitted that he wasn’t afraid of Vanzant. He wanted to be transferred to another cell, because he didn’t think he should have been there to begin with and that he and Vanzant just didn’t gee-haw together. They were from different parts of the State and they didn’t have anything in common and he just felt uncomfortable around him but not because he was afraid of him. Very honestly and candidly he said that. He never told the security officers that he was afraid of Vanzant, he just said that there was bad blood between them and that he would prefer to move somewhere else.”

Plaintiff first alleges that because the hearing which resulted in his being placed in the maximum security area was conducted improperly, the state is liable for his injuries. No authority is cited for this novel proposition and we do not believe it can be supported. In any event, plaintiff has failed to introduce evidence that a properly conducted hearing would not have resulted in the same decision of the Board. Plaintiff has the burden of showing that the defendant’s action was a cause-in-fact of his harm. Here plaintiff has failed to show that the fact that the hearing was conducted improperly caused him any damage.

The next argument of Davis is that the trial judge was incorrect in finding that the penal authorities did not know or have reason to know that harm would ensue to plaintiff and that therefore the Parker test was not met. We, however, find that the trial judge was correct in his determinations. Davis never indicated to the correctional officers that he believed that Van-zant intended to cause him harm. There had been no previous altercations, either verbal or physical, between the cellmates. The correctional officers could reasonably have interpreted Davis’ request to be merely based on a desire to be with friends. They certainly were under no duty to grant such a request. We find, in accord with the trial judge, that the standard of care of the state in cases of this kind was not here breached.

For these reasons, the judgment of the District Court is affirmed at appellant’s cost.

AFFIRMED.

LANDRY, J., concurs in part and dissents in part.

LANDRY, Judge,

concurring in part and dissenting in part.

I concur in that portion of the decision which exonerates the State from liability in this instance. Under the rule in either Parker v. State, 282 So.2d 483 (La.1973), or Breaux v. State, 314 So.2d 449 (La.App. 1st Cir. 1975), affirmed Breaux v. State, 326 So.2d 481 (La.1976), I find no basis for holding the State liable herein.

I respectfully dissent, however, from the majority rejection of the Breaux holding to the effect that a penal institution is obligated to provide facilities and environmental conditions reasonably calculated to protect inmates from the danger of armed attack by fellow inmates. The rule advocated in Breaux has not been set aside by our Supreme Court. For the reasons stated in Breaux, I adhere to the rule therein expressed.