author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Janice M. WHITE.
    No. 62863.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.
    Roy S. Halcomb, Jr., Broussard, Bolton & Halcomb, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Janice M. White was charged by bill of information with possession of phencyclidine with intent to distribute in violation of La.R.S. 40:967. The defense moved to suppress evidence seized from her home pursuant to a search warrant. The trial judge denied the motion. Defendant thereupon entered a plea of guilty to simple possession of phencyclidine, reserving the right to appeal on the denial of the motion to suppress. Having waived all legal delays, defendant then was sentenced to serve three (3) years at hard labor. The sentence was suspended, and defendant was placed upon active probation for two (2). years and was fined $500. Defendant now appeals the denial of the motion to suppress to this Court and assigns nine errors presenting four arguments. We find that none of defendant’s arguments have reversible merit and will herein discuss only Arguments I, III, and IV.

ARGUMENT NO. I

ASSIGNMENTS OF ERROR NOS. 1, 2, 8 AND 4

By assignments of error numbers one, two, three and four, defendant argues that the search warrant was invalid because it did not establish probable cause. These assignments concern the date appearing on the affidavit.

On January 12, 1978, Adrian Lam-kin, a narcotics officer, took a completed search warrant and affidavit to Judge George M. Foote of the Alexandria City Court. The affidavit states as follows:

“Affiant was contacted by a proven reliable and confidential informant on January 12, 1977, and was told the following information: Within the past 60 hours the confidential informant has been within the above described residence and while there did see a quantity of substance the informant knows to be marijuana. The informant knows the drug marijuana due to the prior experience informant has had with the drug in past one year. Informant has also made very closely supervised controlled purchases of marijuana for the affiant within the past year. Informant has given pertinent information relative to narcotics traffic in the Rapides Parish area on at least 10 occasions to the affiant. This information has always proven to be correct and true by direct and investigation of affiant or thru [sic] coroberation [sic] thru [sic] intelligance [sic] information already known to city parish narcotics office.” [emphasis provided]

The subscription by Judge Foote at the bottom of the affidavit bore the date January 12, 1978. The search warrant itself signed by Judge Foote was dated January 12,1977. A search of defendant’s residence on January 12, 1978 produced phencyclidine which was the subject of the motion to suppress.

By these first four assignments defendant contends that because the affidavit states that the affiant was contacted by a confidential informant on January 12, 1977 the judge could not have determined that probable cause existed on January 12, 1978.

Over defense objection that the state should not be permitted to present evidence to modify the affidavit at the hearing on a motion to suppress, the affiant police officer testified that the entry of 1977 was a mistake, that it was indeed January, 1978 that he meant, but that he had been writing 1977 for a year and just “put the wrong date down there.”

The state relies upon State v. Rey, 351 So.2d 489 (La.1977) and the approach taken by this Court to inaccurate statements in affidavits. In Rey we followed in this respect the Fifth Circuit Court of Appeal’s case of U. S. v. Thomas, 489 F.2d 664 (5th Cir. 1973) cert. denied 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975). The two step process outlined in Thomas is to first determine whether the inaccuracies are intentional and if the misrepresentations are found to be unintentional then to determine probable cause without reference to the inaccurate statements. The defense counters that State v. Rey is applicable only where it is the defendant who is attacking the correctness of facts contained in affidavit in an attempt to have a warrant declared unconstitutionally issued. Defendant contends the rule is not applicable in the instant case where it is the state attacking the correctness of facts contained in the affidavit in an attempt to uphold the warrant.

We find it unnecessary to resolve the issue on these conflicting arguments or in reliance upon State v. Rey, because a common sense reading of the affidavit makes it evident that the affiant intended January 12, 1978 rather than January 12, 1977. When the officer presented this affidavit to Judge Foote on January 12, 1978 and when Judge Foote subscribed January 12,1978 at the bottom, the affidavit contained affiant’s assertion in support of the informant’s reliability that the informant knew the drug marijuana because of his prior experience with the drug within the past one year. The officer is obviously stating that the information secured on the date this affidavit was presented to the judge, January 12, 1978, is reliable in part because the informant has had prior experiences, i. e. prior experiences within the past year or within the twelve month period prior to January 12,1978, the date the affidavit was presented to the judge.

Thus from the face of the warrant itself it is evident that affiant is relating that the confidential information was obtained on January 12,1978. There is thus no merit to this assignment.

ARGUMENT III

ASSIGNMENT OF ERROR NO. 8

In this assignment defendant contends that the trial court impermissibly restricted cross-examination of the affiant at the hearing on the motion to suppress. At that hearing defense counsel asked the affiant whether the confidential informant to his knowledge had a record of arrests or convictions. When the state objected to the question, the trial court sustained the objection finding that the question was aimed at attacking the informant’s credibility.

As this Court held in State v. Giordano, 284 So.2d 880 (La.1973) and State v. Melson, 284 So.2d 873 (La.1973), allegations made by the affiant himself may be traversed as untruthful on the affiant’s part upon a proper showing of a genuine issue of falseness of the affidavit. However, the credibility of the affiant’s informant or the correctness of the information furnished by the informer may not be attacked on the motion to suppress. State v. Tassin, 343 So.2d 681 (La.1977); State v. George, 273 So.2d 34 (La.1973).

Although defendant in brief contends that his questions were aimed at the allegations the affiant made about the informant’s credibility, the effect of the questions about the informant’s criminal record would be to attack the informant’s credibility. Consequently, it was not error for the trial court to disallow this line of questioning.

ARGUMENT IV

ASSIGNMENT OF ERROR NO. 9

By this assignment defendant contends that the search warrant which was dated January 12, 1977 had expired and could not have been legally executed on January 12, 1978. Defendant argues in brief that the warrant which was executed on January 12, 1978 was executed in violation of La.Code of Crim.Pro. article 163 which requires that a search warrant be executed within the tenth day after its issuance.

As we indicated in assignment number one, the warrant which was mistakenly dated January 12, 1977 was actually issued on January 12, 1978 and was executed the same day. The affidavit in support of the warrant was correctly dated January 12, 1978 and it is obvious from the face of the affidavit that probable cause was established on January 12,1978. (See Argument I). The purpose of the requirement in Article 163 that warrants be executed within ten days of their issuance is to prevent the information supporting probable cause from becoming stale. In this case, the warrant was issued on the same day that it was executed. The fact that the warrant was mistakenly dated 1977 and not 1978 does not make its execution invalid.

Decree

For these reasons the conviction and sentence of defendant Janice White are affirmed.

AFFIRMED.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . In Argument II (Assignments 5, 6, 7), defendant contends that the search warrant without respect to the improper date fails to show probable cause. This argument which also lacks merit will be discussed in an appendix not published with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Clarence NIEMANN v. TRAVELERS INSURANCE COMPANY.
    No. 62946.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.

      Gregory W. Roniger, Dalton, Gillen & Roniger, Jefferson, for plaintiff-applicant.
    Grayson H. Brown, New Orleans, for defendant-respondent.
   CALOGERO, Justice.

The issue presented in this litigation is whether a “consent to settle clause” in an uninsured motorist policy is valid and operative, and whether a plaintiff who without his UM carrier’s consent settles and releases an Underinsured tortfeasor and that tort-feasor’s liability insurance carrier has defeated his cause of action against the UM carrier.

Plaintiff Clarence Niemann, a guest passenger in a vehicle with UM coverage with Travelers Insurance Company, was injured in a two-car accident caused by the driver of the other vehicle. That other driver, James L. Warmack, carried a liability insurance policy with State Farm Insurance Company with $10,000 per person liability limits.

Thereafter plaintiff compromised his claim against Warmack and State Farm for $9,750, $250 less than State Farm’s $10,000 policy limits, and executed releases in favor of Warmack and State Farm.

Plaintiff then brought the present suit against Travelers based on the underin-sured motorist coverage afforded by the policy of his host driver. He contends that his damages exceeded State Farm’s $10,000 policy limits and that Warmack was thus underinsured, and as such, uninsured within the provisions of R.S. 22:1406 D. Travelers’ third party action against State Farm was dismissed after State Farm filed exceptions based upon the releases of State Farm and Warmack executed by plaintiff.

Travelers then filed a motion for summary judgment claiming that plaintiff’s settlement with and release of Warmack and State Farm were executed without its consent in violation of the policy’s consent to settle clause and that the release substantially impaired Travelers’ claimed right of subrogation against the underinsured motorist Warmack. Travelers’ motion for summary judgment was granted. Plaintiff then appealed to the Fourth Circuit Court of Appeal which affirmed the district court’s ruling. We granted writs upon application of plaintiff.

Defendant relies upon R.S. 22:1406 D(4) to be recited in full hereinafter and two provisions of the policy to support the argument that plaintiff’s settlement with and release of Warmack and State Farm defeated his cause of action.

The two policy provisions are as follows: “Conditions
“30. Subrogation Parts I, II, III and V In the event of any payment under this policy, the company shall be subrogated to all the insured’s rights of recovery therefor against any person or organization and, with respect to Part II, all the rights of recovery therefor which the injured person or any one receiving such payment may have against any person or organization. The insured, or with respect to Part II such person, shall execute and deliver instruments and papers, do whatever else is necessary to secure such rights and shall do nothing after loss to prejudice such rights.
“Part III — Protection Against Uninsured Motorists
“Exclusions
This policy does not apply under Part III:
(b) to bodily injury to an insured with respect to which such insured, his legal representative or any person entitled to payment under this coverage shall without written consent of the company, make any settlement with any person or organization who may be legally liable therefor. . . . ”

Plaintiff concedes that he settled with and released the underinsured motorist Warmack and the liability insurer, State Farm, without the consent of his UM carrier (the defendant), and that by such releases he adversely affected defendant’s opportunity to recover from Warmack any part of the money defendant owes plaintiff under the policy. He seeks to convince us, however, that the consent to settle clause is invalid, that Travelers in any event is entitled to no subrogation right against War-mack, and that his right to collect under the policy is unaffected by the settlement and releases.

In support of his argument that the consent to settle clause in Travelers’ policy is invalid, plaintiff relies upon Hebert v. Green, 311 So.2d 223 (La.1975) in which this Court refused to uphold a similar consent to settle clause. In Hebert, the plaintiff was injured when the vehicle in which he was a passenger was struck by one or the other, or both, of two vehicles. The driver of one vehicle was insured by Allstate, the other uninsured. Plaintiff filed suit naming as defendants the insured driver, that driver’s liability insurer, the uninsured driver, and State Farm as the UM carrier for the vehicle in which he was a passenger. While suit was pending, plaintiff settled with the insured driver and Allstate and reserved his rights against State Farm and the uninsured driver. When State Farm moved for summary judgment claiming that plaintiff’s settlement with the insured driver without its consent violated the consent to settle clause and thus triggered the exclusion in the policy, summary judgment was granted.

As we indicated in footnote number three in the Hebert opinion, we considered there the validity of a consent to settle clause only as it related to a settlement with an insured tortfeasor, not with the uninsured tortfeasor; and we were not concerned with validity of the clause as it relates to a settlement with an insured tortfeasor who under the 1972 and 1974 amendments to the UM statute may be uninsured by virtue of being underinsured.

Unlike the present case, there was no need in Hebert to determine whether the policy’s subrogation and consent to settle clauses conflicted with the UM statute, for even assuming a subrogation right in the carrier, we found that the UM carrier could not have been prejudiced by the settlement of the case. We thus concluded that the consent to settle clause was invalid because it served no purpose other than to abrogate the UM coverage mandated by R.S. 22:1406 D.

The present case presents a different situation. The very person (the under-insured) against whom the UM carrier claims subrogation rights has been released by plaintiff. If defendant does have subro-gation rights, he cannot be otherwise than prejudiced. If defendant has subrogation rights which may be affected by plaintiff’s release of an underinsured motorist, the consent to settle clause serves a purpose— to protect those rights.

The question in this case then, the one in effect pretermitted in Hebert v. Green, is whether defendant has any rights which have been impaired by plaintiff’s settlement with and release of Warmack and State Farm.

Our UM statute, R.S. 22:1406 D, mandates uninsured motorist coverage: “No automobile liability insurance covering liability . . shall be delivered or issued for delivery in this state . . . unless coverage is provided therein ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom . . . (R.S. 22:1406, subd. D(l)(a)).

Furthermore no provision of our statute grants the UM insurer a right to subrogation, that is, the right to exercise the legal rights and actions of its insured. Rather R.S. 22:1406 D(4) affords only certain reimbursement rights in the following language:

“D. The following provision shall govern the issuance of uninsured motorist coverage in this state.
“(4) In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.”

Defendant’s claim to subrogation is based on a provision which it has written into the policy. And it is this subrogation policy provision which creates the need for the other policy clause at issue here, consent to settle. It is our ultimate conclusion that the statute neither explicitly nor implicitly sanctions a clause such as consent to settle, which in operation serves to block the statutorily mandated UM coverage.

Just what are defendant’s rights under R.S. 22:1406 D(4)? As we read the literal language of the statute, it is to receive (“be entitled to”) the proceeds of any settlement or judgment which has resulted or might result (“resulting”) from the exercise of the insured’s rights against the uninsured tortfeasor (and by implication the underinsured tortfeasor).

In the instant case, defendant’s right under R.S. 22:1406 D(4) is worthless. Because the liability insurer is obligated under the liability insurance policy to defend its insured and will not as a practical matter settle without securing a release of the insured, plaintiff is compelled by a legitimate and non-fraudulent need to release the tortfeasor and his insurer. As a result of this release, defendant will be unable to secure reimbursement. No settlement or judgment has or will “result from the exercise of the insured’s rights against” the underinsured tortfeasor with respect to that portion of plaintiff’s damages concerning which defendant would otherwise have reimbursement rights.

If we presuppose that by the statute it was intended that defendant have subrogation rights, or rights greater than afforded by R.S. 22:1406 D our result in this case seems harsh. On the other hand there are equally compelling reasons of public policy to resist a broad interpretation of R.S. 22:1406 D(4) which would allow the insurer to incorporate in his policy subrogation and consent to settle clauses. Why should the insurer, mandated by statute to afford UM coverage and receiving a premium for exposure over liability limits of the underinsured motorist, have the right to interfere with its insured’s settlement with a liability carrier within policy limits, and that carrier’s insured?

Whatever the respective arguments of the parties along these lines, we find it inadvisable and unnecessary to decide this case on considerations of public policy.

On the basis alone of statutory interpretation, we find that the UM insurer has no right under R.S. 22:1406 D(4) other than the right to reimbursement from such proceeds, if any, that the insured in fact recovers from the underinsured tortfeasor.

The policy’s subrogation clause, and the consent to settle clause which protects that purported right of subrogation, serve no legally authorized purpose. They simply impede the insured’s assertion of that part of his damage claim (against the tort-feasor’s liability insurer) which the carrier in writing underinsured motorist coverage effectively acknowledged would be an independent or supplemental right of recovery of its insured. And assuming the insured is compelled, in the interest of securing sure and early settlement with the tortfeasor’s liability insurer, to settle without the UM carrier’s consent (a consent which may be arbitrarily withheld if full import is afforded the clause), the consent to settle clause serves as a bar to the UM coverage mandated by statute.

The apparent conflict between the UM carrier’s right to reimbursement of sums paid its insured from proceeds to be derived from the underinsured tortfeasor, and the insured’s unfettered right to settle with the underinsured and his liability insurance carrier seems to have been caused inadvertently by the Legislature’s passing the 1972 and 1974 amendments to the UM statute without, at the same time, amending R.S. 22:1406 D(4), the reimbursement provision. As .originally enacted by Act 187 of 1962, R.S. 22:1406 D, including subsection four’s reimbursement provision, applied only to uninsured motorist coverage. In the event of payment to its insured the UM carrier retained a right to be reimbursed from any recovery by the insured from the uninsured tortfeasor. Absent fraud or other improper motive, the insured had no reason to release the uninsured tortfeasor without payment.

In 1972, however, when the UM statute was extended to cover underinsured motorists, the situation changed. The UM carrier with larger limits than the tortfeasor’s liability policy was then obligated to pay a portion of the insured’s damages, that which exceeded the underinsured tort-feasor’s liability coverage (but not more than the UM limits). And the 1974 amendment further extended the underinsured motorist coverage to have the UM coverage apply (somewhat as “excess” insurance, as held in Whitten, supra) irrespective of whether UM limits exceeded tortfeasor liability limits provided damages exceeded the tortfeasor’s liability limits. (See footnote 1). Because of the 1972 and 1974 amendments the insured now has a legitimate motive for releasing the underinsured tort-feasor and his insurer — to collect by settlement the underinsured’s policy limits or an acceptable portion thereof, proceeds which the UM statute and the UM insurer contemplate will be available to the insured in addition to the UM proceeds.

Subsection four’s provision for reimbursement of such proceeds as result from the exercise of rights of recovery of the insured, an adequate reimbursement provision for the insurer when the insured had no legitimate incentive to release the uninsured motorist, falls short of affording the carrier meaningful recovery rights in the situation where the insured has legitimate reason to release the underinsured motorist from liability exposure in excess of liability insurance limits. If the UM carrier is to be afforded a right to subrogation or any other right more meaningful than that granted by R.S. 22:1406 D(4), the statute will have to be amended by the Legislature.

It is for these reasons that we find the subrogation clause of the policy illegal, and the consent to settle clause without binding effect upon the insured and invalid. Although this issue is res nova in Louisiana other courts have considered the issue and have similarly concluded that a consent to settle clause in situations rather similar to this is invalid. See Gulf American Fire & Casualty Co. v. McNeal, 115 Ga.App. 286, 154 S.E.2d 411 (1967) and Guthrie v. State Farm Mutual Automobile Insurance Co., 279 F.Supp. 837 (D.S.C.1968).

Decree

For these reasons the judgments of the district court and the Court of Appeal maintaining defendant Travelers’ motion for summary judgment are reversed. The case is remanded to the district court for further proceedings.

JUDGMENT OF COURT OF APPEAL REVERSED; REMANDED.

SUMMERS, C. J., and CULPEPPER and MARCUS, JJ., dissent.

       Chief Judge William A. Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . Prior to Act 137 of 1972 and Act 154 of 1974, coverage under R.S. 22:1406 D extended only with respect to vehicles not covered by liability insurance, (i. e. uninsured motorist). Act 137 of 1972 provided that uninsured motorist coverage would be applicable when the liability limits of an insured tortfeasor are less than the limits of an insured claimant’s uninsured motorist coverage. Act 154 of 1974 extended this underinsured motorist coverage to the situation in which the liability limits applicable to the insured tortfeasor’s vehicle are exceeded by the damages suffered by the insured and/or the passengers in the insured’s vehicle, irrespective of whether UM limits exceeded tortfeasor’s liability limits.

       [Protection Against Uninsured Motorists]

      . Niemann v. Travelers Insurance Company, 360 So.2d 564 (La.App. 4th Cir. 1978).

      . Niemann v. Travelers Insurance Company, 362 So.2d 1388 (La.1978).

      . We so concluded for the reason that the UM carrier’s liability to the insured and corresponding entitlement to recover would not exceed the uninsured motorist’s reduced liability to plaintiff (a reduction to one-half prompted by plaintiffs releasing one of two joint tortfeasors. See Harvey v. Travelers, 163 So.2d 915 (La. App. 3rd Cir. 1964)).

      . Articles 2159, 2160 and 2161 of the Louisiana Civil Code provide for conventional and legal subrogation. Through subrogation, an obligation which is extinguished with regard to the subrogor is continued to the benefit of the subrogee who is authorized to the extent that he has paid to avail himself of the rights and actions of the original subrogor. See 4 Aubry et Rau, Cours de Droit Civil Francais, no. 321 (6th ed. 1946). A subrogee is “figuratively put in the shoes of the creditor which means that all laws applicable to the latter, in the enforcement of rights and remedies, apply with equal force to the former.” International Paper Co. v. Arkansas & Louisiana M. R. Co., 35 So.2d 769, 771 (La.App.1948).

      . The UM carrier has no right to reimbursement from the underinsured tortfeasor’s liability insurer once plaintiff has negotiated a settlement as to that insurer’s liability within the policy limits. The 1974 amendment to R.S. 22:1406 D in effect makes UM coverage “excess” coverage. Whitten v. Empire Fire and Marine Insurance, 353 So.2d 1071 (La.App. 2d Cir. 1977). The UM carrier has no obligation to pay that portion of plaintiff’s damages within the underinsured tortfeasor’s liability policy limits but only those damages which exceed the policy limits and which are within the UM policy limits. Thus, the UM carrier’s only right to reimbursement in the event of payment is with respect to recovery of that part of plaintiffs claim which exceeds the tortfeasor’s liability limits, a sum as to which only the tort-feasor is exposed.

      . Nonetheless we point out here what we stated in Hebert v. Green:
      “It is not in the best legal interest of the public to require that legal representatives of parties to these actions first receive consent from their client’s own uninsured motorist carrier before settling actions with other parties who may or may not be found ultimately liable for plaintiffs injuries. A well recognized principle of our law is that compromises are to be favored. If a client’s interests are to be most favorably promoted through the device of settlement and compromise, the attorney involved cannot afford to operate at the whim, or subject to the direction and consent, of an insurance company’s claims representative. This is especially so when the consent (required by the exclusion clause at issue) can be withheld in regard to plaintiff’s claims against other parties whose possible liability could only be determined by trial and a consequential adjudication. A just weighing of the factors involved requires that the best interests of the public be protected by assuring that the plaintiffs-insureds be given a fair opportunity to recover by means of litigation, if necessary, the fruits of the coverage for which they have readily paid premiums.” 298 So.2d at 913.


author:
DENNIS, Justice.
     MARCUS, Justice

text:
    ILLINOIS CENTRAL GULF RAILROAD COMPANY v. INTERNATIONAL HARVESTER COMPANY.
    No. 62963.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.

      Mack E. Barham, Sherry M. Wise, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, Saul Litvinoff, La. State University Law Center, Baton Rouge, for plaintiff-applicant.
    Max Nathan, Jr., Peter S.Title, Sessions, Fishman, Rosenson, Snellings & Boisfon-taine, New Orleans, for defendant-respondent.
   DENNIS, Justice.

In this case we are called upon to decide two principal issues: Did the lessor by its silence and acceptance of rentals under the circumstances of this case impliedly consent to a sublease and a modification of the lease clause restricting the tenant’s use and occupation of the premises? Should the court, by applying the doctrine of abuse of rights to the facts of this case, refuse to enforce the lessor’s right under the lease contract to withhold permission from the lessee to enter a sublease with a third party?

Illinois Central Gulf Railroad Company (Illinois Central) leased two contiguous parcels of land on Poydras Street in New Orleans to International Harvester Company (Harvester) in 1960 and 1961 for the continued operation of a truck sales and service business which it had established on the same site in 1936. The lease contracts provided that the leases would terminate in 1986. Between 1971 and 1975 the Louisiana Superdome was constructed directly across the street from the leased premises. Consequently, the market value of the property subject to the leases increased in value significantly. Harvester constructed a new building on the leased premises in 1972 but moved its sales and service business from the property in 1974.

On January 17, 1975 Harvester requested Illinois Central’s permission to sublease the premises 1601 Poydras Corporation for use as a parking garage. Illinois Central refused and counter-proposed that the leases be cancelled. Harvester once again requested permission to sublease but ultimately offered to cancel the leases for a cash payment. Several months later, on August 27, 1975, Harvester subleased the premises to 1601 Poydras Corporation without notice to Illinois Central. The sublease contract was not recorded until almost nine months after its confection. In September, 1975 Illinois Central’s real estate manager learned that a public parking business was being operated on the premises. In October of 1975 the Illinois Central real estate manager wrote Harvester and, without referring to the parking operation, requested a conference for the purpose of reaching an amicable solution without litigation. Harvester replied by letter within a few days tacitly refusing to confer and stating its intention to continue with the leases. Following this exchange of letters there was no communication between the parties for approximately sixteen months during which Illinois Central continued to accept monthly rent payments from Harvester. In March of 1977 one of Illinois Central’s officers complained by telephone to Harvester about a problem existing on the leased premises. Harvester responded by letter on April 21, 1977 that because it had been denied consent to sublease it was continuing to operate under the terms and conditions of the lease.

After further discussions and unsuccessful settlement negotiations Illinois Central filed this eviction suit in December, 1977, and deposited in court all rents received after November 23, 1977. Illinois Central alleged that Harvester had violated the lease contracts by subletting the premises without the lessor’s written consent and by using the premises for purposes not authorized by the leases. After trial of the summary proceeding, the district court rendered judgment ordering Harvester to vacate the premises, remove all improvements and deliver possession to Illinois Central. The court of appeal reversed the judgment holding that Illinois Central’s silence for sixteen months and acceptance of rental payments for twenty-six months after gaining knowledge of the operation of a parking business on the premises constituted a waiver of its rights under the leases to reject the sublease and to restrict the use of the property. Illinois Central Gulf Railroad Company v. International Harvester Company, 360 So.2d 628 (La.App. 4th Cir. 1978). We granted a writ of certiorari to consider the issues of law raised by the court of appeal opinion.

The leases between Illinois Central and Harvester, in pertinent part, provide:

“It is further agreed by the Lessee, that said premises shall be used and occupied exclusively as a site for [a motor truck sales and service station and warehouse] [a storage space].
U * * *
“It is further agreed by the Lessee, not to underlet said premises, or any part thereof, or assign this Lease, without the written consent of the Lessor, first had and obtained.”

The contract further provided that, upon the lessee’s default in keeping any agreement, the lessor would have the right to terminate the lease.

Implied Consent to Modify Leases

It is uncontroverted that Harvester did not obtain written or express consent before subletting the premises and converting it to a parking garage. The court of appeal, however, found that Illinois Central, by its silence and inaction, had impliedly assented to the sublease and altered use of the premises. The intermediate court’s treatment of the issue raises the question of whether a lessor’s mere silence in the face of proposals and actions contrary to the lease contract by his lessee constitutes assent to the modification of the contract.

Every contract or modification of a previously concluded agreement requires the concurrence of the consent of the parties. La.C.C. arts. 1766, 1779(2), 1798. Consent results from a free and deliberate exercise of the will of each party where the intent has been mutually communicated or implied, La.C.C. art. 1819, and accepted by the party to whom a proposal is made. La.C.C. arts. 1798, 1800.

Consent may be given either expressly or by implication, La.C.C. arts. 1780, 1811, but the cases in which consent is implied are particularly determined by law. La.C.C. art. 1781. According to the civil code, consent may be implied in the following instances:

. when it is manifested by actions, even by silence or by inaction, in cases in which they can from the circumstances be supposed to mean, or by legal presumption are directed to be considered as evidence of an assent.” La.C.C. art. 1811.
U * * *
“[W]hen [actions without words] are done under circumstances that naturally imply a consent to such contract. . . ” La.C.C. art. 1816. See also, La.C.C. art. 1817.

Thus, except in those instances in which the statutory law creates a legal presumption, the mere silence of an offeree should not, in principle, be considered as involving acceptance on his part. His consent can result from silence, however, when combined with other facts or acts so as to imply or indicate his consent unequivocally. 1 Civil Law Translations — Aubry & Rau, Obligations, § 343, p. 307 (1965). See, Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970). In cases where the law does not expressly create a legal presumption of consent from certain facts, it is left to the discretion of the judge to determine if consent is to be implied from the particular circumstances of the case. La.C.C. art. 1818; Pooler Bldg. Mats. Inc. v. Hogan, 244 So.2d 62 (La.App. 1st Cir. 1971).

The civil code and statutes do not provide that any legal presumption of consent shall arise from a lessor’s silence and acceptance of rent. Compare, e. g., La.C.C. arts. 2295, 2688-89, 2933, 3145-46. Accordingly, the question to be resolved in this part of the case is essentially factual, i. e., whether the judge exercised sound discretion in determining that Illinois Central’s consent to a modification of the lease contract was not unequivocally implied from its silence and inaction under the particular circumstances of the instant case. In his brief dictated reasons for judgment the trial judge found that there had been no showing of consent to the sublease and that Illinois Central’s objections and attempts at amicable settlement negated its consent to allow the premises to be used as a parking garage.

We agree with the trial judge’s conclusions. There is no showing that Illinois Central unequivocally consented to modify the leases so as to permit a sublease to 1601 Poydras Corporation or to allow the operation of a parking garage on the premises. On the contrary, Illinois Central declined Harvester’s proposal for such an amendment of the leases and offered instead to cancel the leases. Harvester’s requests for Illinois Central’s permission, followed by Harvester’s alternative offer to cancel the leases for a cash payment, show that the will of the parties had not united on a modification of the leases. The acceptance of rentals and delay in filing eviction proceedings by the railroad company were not necessarily inconsistent with an intent to enforce the leases as written. Although disputed, there is evidence of record that Illinois Central had no definite knowledge until shortly before filing suit that Harvester had entered a sublease. The fact that Illinois Central, like Harvester, was a large corporation headquartered in Chicago, with extensive national real estate holdings tends to indicate that its delay was due to lack of information and inattention rather than its assent to a modification of the leases. Illinois Central presented testimony from its officers that there was never an intention to accept any modification of the contracts permitting a sublease to 1601 Poy-dras Corporation or the operation of a parking business on the premises. They attributed the railroad company’s lengthy delay and silence to a combination of factors including changes in corporate management, the large number of leases under management, and the desire to avoid litigation. The trial judge apparently found these witnesses to be credible. Considering that he heard and saw the witnesses and that the other circumstances of the case do not unequivocally indicate that the railroad consented to a modification of the leases, we conclude that the trial judge exercised sound discretion in finding that Illinois Central’s consent was not to be implied from the evidence of the case.

Harvester has cited a number of decisions in support of its argument that Illinois Central condoned its violations of the lease contracts by accepting rent for many months after learning of the parking garage operation on the premises. Arms v. Rodriguez, 232 La. 951, 95 So.2d 616 (1957); Canal Realty & Improvement Co. v. Pailet, 217 La. 376, 46 So.2d 303 (1950); Trichel v. Donovan, 138 La. 985, 71 So. 130 (1916); Blanchard v. Shrimp Boats of Louisiana, Inc., 305 So.2d 748 (La.App. 4th Cir. 1974); Moore v. Bannister, 269 So.2d 291 (La.App. 4th Cir. 1972); Major v. Hall, 251 So.2d 444 (La.App. 1st Cir. 1971); Jourdan v. Randall, 190 So.2d 469 (La.App. 1st Cir. 1966). In these cases the appellate courts made factual determinations that the lessor either impliedly consented to a modification of the lease or forgave a breach of the lease. However, a factual determination relating to a party’s intention or consent in a particular case, even by an appellate court, does not establish a rule of law for other cases. We interpret the authorities relied upon by Harvester as holdings based on the same legal principles as the instant opinion but reaching different results founded upon different evidentiary records. The appellate opinions in those cases, and the opinion in the instant case, should not be construed as creating legal presumptions of consent beyond those set forth in the civil code or other statutes. It is the function of the legislature to formulate new legal presumptions. The proper role of the court, in cases where statutory legal presumptions are not applicable, is to determine if consent is to be implied from the particular circumstances of the case. La.C.C. arts. 1811, 1818.

Accordingly, we conclude that the court of appeal erred in reversing the trial court’s finding of fact with respect to whether the lessor impliedly consented to the sublease or the change in use of the premises.

Abuse of Lessor’s Right to Withhold Permission to Sublease

Harvester contends alternatively that, if Illinois Central did not consent to its sublease to 1601 Poydras Corporation, the lessor’s exercise of its right to withhold its consent was abusive under the facts of the instant case and therefore should not be enforced judicially.

Article 2725 of the Louisiana Civil Code provides that the lessor may by contract prohibit the lessee from entering a sublease:

“The lessee has the right to underlease, or even to cede his lease to another person, unless this power has been expressly interdicted.
“The interdiction may be for the whole, or for a part; and this clause is always construed strictly.”

The article is not clear as to whether a clause expressly interdicting the lessee’s right to sublease is to be construed strictly for or against the lessee. However, this Court has said that “[t]he language is taken literally from the Napoleon Code; and the interpretation which it appears to have uniformly received in France ... is that the prohibition must be construed strictly against the lessee.” Cordeviolle v. Redon, 4 La.Ann. 40 (1849).

Harvester points out, however, that the leases in the instant case do not absolutely prohibit subleasing but merely require the prior written consent of the lessor. Consequently, Harvester contends, Illinois Central’s refusal of consent should not be judicially enforced if in light of all the circumstances it was an abusive exercise of the lessor’s contractual right. See, 2 Colin et Capitant, Droit civil Francais, No. 1041 at 690 (10th ed. 1948); Josserand D.P. 1923.2.-172.

This Court expressly recognized the doctrine of abuse of rights in Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1977), and has employed a similar analysis in earlier decisions. Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 So. 206 (1919); Onorato v. Maestri, 173 La. 375, 137 So. 67 (1931).

Nevertheless, the doctrine of abuse of rights has been invoked sparingly in Louisiana and we must look to other civilian jurisdictions for its full articulation. The doctrine is the product of a French jurisprudential and doctrinal movement which has expanded into most of the civil law jurisdictions “to the point of becoming a widely accepted principle of the Civil Law.” Cue-to-Rua, Abuse of Rights, 35 La.L.Rev. 965, 967 (1975). See, generally, Catala and Weir, Delict and Torts: A Study in Parallel (Part II), 38 Tul.L.Rev. 221 (1964); Herman, Classical Social Theories and the Doctrine of Abuse of Right, 37 La.L.Rev. 747 (1977); Maynard, Abuse of Rights in France and Quebec, 34 La.L.Rev. 993 (1974); Comment, 7 Tul.L.Rev. 426 (1933). The main body of French case law on abuse of rights is based on article 1382 of the French Civil Code, which is very similar in wording to article 2315 of the Louisiana Civil Code. In its origin, the abuse of rights doctrine was applied to prevent the holder of rights or powers from exercising those rights exclusively for the purpose of harming another, but today most courts in civil law jurisdictions will find an act abusive if the predominant motive for it was to cause harm. See, Cueto-Rua, supra, at 990-91; Catala and Weir, supra, at 222-26. The doctrine has been applied where an intent to harm was not proven, if it was shown that there was no serious and legitimate interest in the exercise of the right worthy of judicial protection. See, Cueto-Rua, supra, at 992-96; Catala and Weir, supra, at 230-34. Protection or enforcement of a right has been denied when the exercise of the right is against moral rules, good faith or elementary fairness. See, Cueto-Rua, supra, at 996-99. Another criteria, espoused originally by the French scholar Louis Josserand, would require an examination of the purpose for which the right was granted. If the holder of the right exercised the right for a purpose other than that for which the right was granted, then he may have abused the right. See, Cueto-Rua, supra, at 1000-1003; Catala and Weir, supra, at 227-29; Herman, supra, at 754-55.

The foregoing principles seem to be the main criteria which have been formulated for applying the abuse of rights doctrine. These tests have met with varying degrees of acceptance in the civil law jurisdictions, and it should be kept in mind that the entire doctrine is in a state of flux. As Professor Cueto-Rua observes:

“ * * * The doctrine of abuse of rights is in the making, it is ‘in fieri.’ It is an important juridical-political element of modern civil law doctrine. Although there are still pending important questions concerning its scope as well as criteria for the definition of abusive use of rights, this we may safely say now: it will be difficult for a holder of an individual right, in most of the civil law jurisdictions today, to exercise such right to the detriment of other parties, just for the sheer sake of exercising it. At least a ‘serious and legitimate interest’ will have to be shown in order to justify the exercise of its right.”

After evaluating the conduct of the parties in the present case under the jurisprudential and doctrinal tests, we conclude that judicial enforcement of Illinois Central’s right to withhold permission for the sublease and change of use proposed by Harvester would not sanction an abuse of right. Illinois Central did not withhold its consent with a predominant intent to harm Harvester. Instead, the record reflects that it refused to grant permission for the purpose of attempting to negotiate a cancellation of the leases with Harvester. The railroad company’s motive and intent were openly and honestly stated in its reply to Harvester’s sublease proposal:

“Land values have risen so dramatically since the renewal of these leases that we are now receiving an inequitable rental compared to the present day market.
“In view of the existing conditions, rather than approve a sublease, we suggest as an alternative cancellation of both agreements subject to the terms contained in each.”

Since the property involved has greatly appreciated in value, reducing rental revenues to an inadequate level, Illinois Central’s withholding of its immediate consent to a sublease for purposes of negotiating a cancellation was certainly based on a serious and legitimate motive.

Moreover, it cannot be said that Illinois Central’s refusal to consent to the sublease was adamant or irrevocable; and it does not appear that Harvester was insistent upon its request for permission. Harvester wrote two letters seeking its lessor’s consent to the parking lot sublease, but in a third letter it offered to cancel the leases for a cash settlement of $69,886. From these letters it appears that Illinois Central could not have withheld its consent for more than ninety-eight days, and the record reflects that the parties’ oral negotiations had shifted from sublease to cancellation much earlier. After this, Harvester never again requested permission to sublease; nor did it seek judicial relief from Illinois Central’s alleged abusive conduct. Instead, during the time that its offer to cancel the leases apparently was still open, Harvester entered a sublease with 1601 Poydras Corporation without further notice to its lessor.

We cannot say that Illinois Central exercised its right to withhold consent to a sublease for a purpose other than that for which it was granted. The record is devoid of evidence of the parties’ intention in placing the clause in the leases. It cannot be assumed that the lessor merely sought by the clause to protect itself against an objectionable subtenant. The parties likely would have limited the interdiction to subleases with objectionable sublessees if this had been the lessor’s only concern. Moreover, in the instant case, the lessee sought to do more than merely substitute an acceptable subtenant for itself; it sought as well to change the use of the premises from a truck retail outlet to a parking garage. Furthermore, Josserand’s purpose-of-the-right test has not been generally accepted in the civil law jurisdictions. Cueto-Rua, supra, at 1002-1005; Catala and Weir, supra, at 228.

The exercise of the right to withhold consent was plainly not against moral rules, good faith or elementary fairness. Nor did Illinois Central act without any regard for the interest of Harvester. The railroad company candidly disclosed its motives and intent, bargained in good faith, and offered significant concessions in an attempt to reach a settlement with Harvester.

In summary, we do not find that Illinois Central’s conduct falls within any of the definitions of abusive use of rights. The withholding of consent to a sublease was for a relatively brief period of time, not done for the sheer sake of exercising the right, but done for the purpose of attempting to carry on actual good faith negotiations for cancellation of the lease, in which the lessor had a serious and legitimate interest under the circumstances, and the lessee did not pursue its rights vigorously by insisting on a sublease or by proceeding against the lessor judicially before violating the agreements of the lease.

Dissolution of the Leases

Finally, Harvester argues that the trial court abused its discretion by evicting the lessee under the circumstances of the instant case. It relies on Louisiana Civil Code article 2711, which, in pertinent part, provides:

“If the lessee makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease.”

Under this article the dissolution of a lease because a tenant has put the premises to a use for which it was not intended requires a showing of loss by the lessor and rests within the discretion of the court. New Orleans and Carrollton R. Co. v. Darms, 39 La.Ann. 766, 2 So. 230 (1887); Stoltz v. McConnell, 202 So.2d 451 (La.App. 4th Cir.), cert. denied, 251 La. 231, 203 So.2d 559 (1967); Arbo v. Jankowski, 39 So.2d 458 (La.App. Orl.Cir.1949). If unauthorized use of the premises were the only basis for dissolution proven in the instant case we might agree that a less drastic remedy would be more appropriate.

However, the sublease from Harvester to 1601 Poydras Corporation was in violation of clauses contained in the leases expressly prohibiting underletting without the lessor’s prior consent. The right to demand a dissolution of the lease is given reciprocally to landlord and tenant if either violates the contract. La.C.C. art. 2729. Unlike the right to dissolve a lease under La.C.C. art. 2711 for use of the premises for an unintended purpose, Article 2729 does not require a showing of actual damage, and our courts have fully enforced the lessor’s right to dissolve the lease for subletting the premises in contravention of the contract of lease. Bryan v. French, 20 La. Ann. 366 (1868); Cordeviolle v. Redon, 4 La.Ann. 40 (1849); Reed v. Ross, 12 La.App. 619,126 So. 923 (2d Cir. 1930). Accordingly, we conclude that the trial judge did not abuse his discretion but reached the correct' result in dissolving the leases.

For the reasons assigned, the judgment of the court of appeal is reversed and the judgment of the trial court is reinstated at the cost of the defendant.

REVERSED: JUDGMENT OF TRIAL COURT REINSTATED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

Under the facts of this ease, I consider that Illinois Central impliedly consented to the sublease and change in the use of the premises. Accordingly, I respectfully dissent.

       Chief Judge William A. Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . Under the contract which was designated an “operating agreement,” 1601 Poydras Corporation was given possession of the premises in return for a monthly “premium” and its agreement to hold Harvester harmless in the event of eviction. However, Harvester does not contest the finding of both the trial and intermediate appellate courts that the contract was a sublease.

      . Lease No. 15042.

      . Lease No. 15730.

      . See also, Owens v. Oglesby, 123 So.2d 521 (La.App. Orl.Cir.1960); Marcuse v. Shapiro, 1 La.App. 135 (Orl.1924). But see, Gamble v. New Orleans Housing Mart, Inc., 154 So.2d 625 (La.App. 4th Cir.), cert. denied, 244 La. 1027, 156 So.2d 229 (1963); 2 M. Planiol, Civil Law Treatise, No. 1752 (La.St.L.Inst.Transl.1959).


author: DIXON, Justice.

text:
    STATE of Louisiana ex rel. David L. FIELDS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 62997.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.

      Anthony C. D’Antonio, New Orleans, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., P. Mike Cullen, Abbott J. Reeves, Asst. Dist. Attys., for defendant-respondent.
   DIXON, Justice.

Shortly after 7:30 p. m. on February 26, 1975, Norman Newton was driving to Sally’s Beauty Company in Jefferson Parish where he was employed as store manager. He was pursued by a man in a white and blue Ford LTD who forced Newton from his car in front of the store and, after an argument, shot and killed him. On March 18, 1975, David Fields and Richard Smith were picked up by the police for investigation. During the course of the day, Fields gave the police a written statement and submitted to two polygraph examinations; he and Smith were released in the late afternoon.

On May 2, 1975, Fields was arrested and was identified in a line-up at the station house. Two weeks later he was indicted for the second degree murder of Newton. He was thereafter convicted as charged and was sentenced to life imprisonment without eligibility for parole, probation, or suspension of sentence for twenty years. On appeal his conviction and sentence were affirmed. 342 So.2d 624 (La.1977). In denying a rehearing, this court noted that Fields was “relegated to post-conviction procedures to litigate the new matter raised in the application for rehearing (the denial of counsel at the line-up).” 342 So.2d at 630.

The relator thereafter applied to the district court for a writ of habeas corpus alleging this and several additional grounds for relief through original and amended petitions. After evidentiary hearings were conducted on September 15 and September 29, 1977, the trial court denied relief on all grounds. Fields then applied to this court to review the judgment, and a writ was granted on October 10,1978. 363 So.2d 220 (La.1978).

GROUND NO. 1

The relator contends that the trial court erred in denying habeas corpus relief on the ground that the prosecution suppressed evidence favorable to his defense. This contention is based, on the testimony of Jack Herbert, an employee of a truck rental service located near Sally’s, who stated that he had given the police the license number of the automobile used by Newton’s killer.

Herbert testified that he did not see the actual shooting, but that he did see the LTD race away after he heard shots. He immediately scratched its license number on a ramp, then wrote the number on the order sheet he was holding, and at some later point wrote the number on a scrap of paper. He then called the police to report the crime and was fairly certain that he told the license number to the police operator. He did not relate the same information to the officers who arrived at the scene because he had misplaced the scrap of paper by that time. Subsequent efforts to find the paper or to locate the work order proved fruitless.

It is first somewhat questionable whether the police ever received the information concerning the license plate number. Herbert stated that he thought he had given the information to the police operator, but the tapes of incoming calls are unavailable because they are erased and reused as a matter of routine procedure. The record fails to establish that the prosecution was ever aware that Herbert at one time possessed the license number of the assailant’s car.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court declared a prosecutor’s withholding of favorable evidence from the defense to be a violation of due process. However, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the court decided that in the absence of a request for the exculpatory material (which is the case here), the prosecution has a duty to disclose only such evidence which could create a reasonable doubt about the defendant’s culpability.

In this context, the license number of the Ford LTD has no inherently exculpatory value, since such evidence could only have proved that the car was registered to someone other than Fields. At trial several witnesses gave evidence linking Fields to the blue and white LTD. In addition, Indio Gennaro, a Harahan police officer, testified that Fields had told him the car was a gift from a friend and that the title had not yet been transferred to his name. Therefore, the license number would not by itself have raised a reasonable doubt of guilt in light of testimony connecting Fields with the car, and might have easily led the investigation back to him.

This argument contains no ground for relief.

GROUND NO. 2

The relator asserts that unnecessarily suggestive pre-trial procedures resulted in his identification at trial. The relator relies on the testimony of Jack Herbert who stated that police officers attempted to persuade him to identify Fields as the killer by showing him Fields’ picture and by characterizing him as “a bad dude.” His statement was corroborated by his wife, who testified that Herbert told her the substance of this conversation when they later discussed the incident. At trial Herbert testified that David Fields was not the man he saw driving away after Newton was killed.

In addition, the relator refers the court to the deposition of Barbara Maxwell Rushing, taken on April 17, 1978, in which she recanted her trial identification of Fields. Ms. Rushing testified at trial that she had spoken with the man in the LTD on a number of occasions in the course of her work as a security guard for a company with offices near those of Sally’s Beauty Company. She then identified the defendant as the man she had seen in the car. In her 1978 deposition, she alleges that her trial testimony resulted from her enthusiasm to help the police and, by doing so, to enhance the reputation of her employer, Best Investigation Security. She then unequivocally stated that Fields was not the man she had seen in the Ford.

The relator does not argue that Rushing’s recanting by itself is a ground for granting relief. See State v. Linkletter, 345 So.2d 452 (La.1977). Instead, Fields contends that the evidence of suggestive practices attested to by Herbert, coupled with Rushing’s recantation, places the burden on the state to prove that the identification made by the other witness, Joy Thig-pen, was not a result of error or undue police suggestion.

We cannot accept the argument that the state must carry this burden. In State v. Judson, 329 So.2d 742 (La.1976), we held that the defendant must prove that a lineup identification was impermissibly tainted. The relator has been unable to show the presence of suggestive practices when Joy Thigpen identified him by his photograph and later at the line-up. Moreover, Rushing makes clear in her deposition that her identification of Fields as the murderer was in no manner prompted by the police, but by her own desire to please her employer. Among the several photographs shown her, she selected Fields’ because there was a superficial resemblance between his picture and the killer.

In any event, due process is violated by the likelihood of misidentification, and not merely by suggestive identification procedures. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Guillot, 353 So.2d 1005 (La.1977). In Guillot, this court indicated that the corrupting effect of a suggestive identification would be balanced against the five factors announced in Manson v. Brathwaite, supra: the witness’ opportunity to view the crime; the degree of attention paid by the witness; the accuracy of any prior description; the level of certainty displayed at the confrontation; and the amount of time between the crime and the confrontation.

In this case the suggestiveness of the identification procedures is a matter of speculation, and was specifically denied by the police officers at trial. On the other hand, Thigpen testified that her view of the crime was quite good, and that her attention was fixed on the two men. She also identified Fields’ picture within a few days of the crime and subsequently identified him at the line-up. In light of these factors, it is reasonable to conclude that her identification had a source independent of any assumed. taint resulting from suggestive police practices.

The second argument asserted by the relator concerns the line-up conducted at the police headquarters on May 2, 1975, after Fields was arrested but before he was indicted. Fields argues that he was not only denied his right to counsel at the line-up, but also that he was duped by the police into believing that an assistant district attorney, Abbott Reeves, was his lawyer.

The testimony taken at the evidentiary hearing established that Leonard Jaeger, a long-time friend of the relator, was with Fields when he was arrested and promised that he would have counsel for him by the time the line-up was conducted. To this end, Jaeger contacted a local attorney, Frank Langridge, and asked him to represent Fields. Through a misunderstanding, Langridge failed to appear at the appointed time, and Jaeger began to telephone various attorneys in an unsuccessful attempt to secure counsel for Fields. He also informed the police officers of his efforts.

Jaeger testified that Reeves was introduced to him as Fields’ attorney and that he assumed that Reeves had been appointed by the court. Fields, on the other hand, assumed Reeves to be Langridge when they were introduced in the same manner. Sergeant Claverie related a different version of the events in question. According to his testimony, he called Reeves to attend the line-up as an observer when it appeared that Fields would not have an attorney present. Claverie also stated that he apprised Fields of Reeves’ position, and that Fields did not appear to object.

In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Supreme Court held that the presence of counsel at a pre-indictment line-up was not a requirement of due process. This court has followed Kirby in a number of decisions — State v. Hargrove, 330 So.2d 895 (La.1976); State v. Johnson, 327 So.2d 388 (La.1976) — although we have recently indicated that the Kirby rule may be too broad in some instances, such as where the state denies the defendant access to retained counsel. State v. Smith, 357 So.2d 798 (La.1978); State v. Holmes, 354 So.2d 1282, 1287 (La.1977) (Tate and Dennis, JJ. concurring); State v. Spears, 350 So.2d 603, 607 (La.1977) (Calogero, J. concurring). Nevertheless, it is clear that Fields had no retained counsel at the time of the line-up and, therefore, was not prejudiced. Reeves’ presence did not contribute to the absence of counsel for Fields. Fields’ contention that he would not have submitted to the line-up without counsel is also without merit. As we noted in State v. Maduell, 326 So.2d 820 (La.1976), “. . . even if counsel were present he could not prevent the presentation of the accused to the victim or witnesses in a properly conducted in-field or line-up identification procedure.” 326 So.2d at 826.

Finally, it is clear that the relator has failed to show the presence of any taint in the line-up procedure, or that any speculative suggestiveness led to a risk of misiden-tification. Manson v. Brathwaite, supra.

This argument contains no ground for relief.

GROUND NO. 3

Fields raises the issue of counsel’s ineffective handling of his defense and points to his attorney’s failure to file pretrial motions to suppress the line-up identification. Apparently the defense attorney (not his attorney on appeal) relied on the prospect of a plea bargain and only belatedly objected to testimony concerning the line-up identification. His motion to exclude this testimony was denied by the trial judge.

In State v. Kenner, 336 So.2d 824 (La.1976), this court considered similar allegations of ineffectiveness of counsel and concluded that if such arguments were based on the attorney’s failure to file pre-trial motions, relief was not in order absent a showing of their possible merit or that prejudice resulted to the defendant by their not being filed. Here the relator has failed to show that the line-up was suggestive, that it was tainted by a prior photographic display, or that a substantial likelihood of mis-identification at trial existed. Therefore, although Fields may not be satisfied with the representation he received, the errors allegedly committed by his attorney did not deprive him of his right to the effective assistance of counsel.

The relator is not entitled to relief on this ground.

GROUND NO. 4

The relator argues that habeas relief should have been granted on the basis of violations of his right to the assistance of counsel and of his privilege against self-incrimination. These allegations stem from events on March 13, 1975, when Fields and Richard Smith were picked up by the police for investigation. During this period Fields signed a written statement which was introduced at trial over defense objections.

According to Smith, Sergeant- Claverie told Fields that his attorney had called several times while he was taking the polygraph test and being interrogated, but that the police had not disturbed him. Claverie also allegedly stated that it was for the better that he had not spoken with the attorney since the attorney might have persuaded him not to cooperate as fully as he had. The relator corroborated Smith’s version of this conversation. He also testified that when he finally did speak to Peter Vernaci, the attorney, he was told not to talk any more and that the police had to release him or charge him with a crime. Vernaci also spoke to Sergeant Claverie and supposedly said the same things to him. Fields stated that when he told this to Claverie, the latter replied that a request to be released would appear suspicious and would cause the police to arrest him. Clav-erie also allegedly continued the interrogation for another hour before ordering other policemen to take Smith and Fields to their homes.

Peter Yernaci’s account of the telephone conversation differed in certain respects from the version related by Fields and Smith. Vernaci testified that he called the police station and spoke to both Fields and Claverie. He told Fields to leave if he was not under arrest and told Claverie either to let Fields go home or to arrest him. Clav-erie’s testimony was that Vernaci told him that he could question Fields so long as he did not arrest him, but that he had already finished interrogating Fields and therefore sent him home. Claverie was never asked whether he had refused to notify Fields of earlier calls, but it is noteworthy that Ver-naci mentioned only one phone call in his testimony.

In ruling on this argument, the trial judge accepted the relator’s account of the events but nevertheless denied relief. In his reasons for judgment, the trial judge stated that Fields had not persuaded him that his original determination of voluntariness and compliance with Miranda requirements was incorrect, and that the relator had also failed to show that the phone call preceded the taking of the written statement introduced at trial. The judge also stressed the absence of any prejudice arising from the use of the statement.

The defense has placed reliance on the holdings in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and State v. Jackson, 303 So.2d 734 (La.1974), as mandating the exclusion of the statement. However, the facts of Escobedo and Jackson are clearly inapposite to this case. Fields was not prevented from conferring with his retained attorney by strong-arm police tactics, as was the case in Escobedo, nor is the record clear that Vernaci actually asked that the interrogation cease, as was the situation in Jackson.

The additional reasons given by the district court for refusing relief on this ground are also persuasive. The relator has failed to establish that the statement came after Vernaci allegedly told the police to cease any interrogation of Fields. Although Fields insists that Claverie questioned him after speaking to Vernaci (a point contested by the sergeant), Fields’ own testimony indicates that the statement introduced against him was taken before Vernaci telephoned him. Moreover, the statement was completely exculpatory and could not be used for impeachment, since Fields never deviated from his alibi defense. The introduction of the statement did not prejudice Fields.

This ground for relief has no merit.

GROUNDS NOS. 5 and 6

As a fifth ground for relief, the defendant argues that the results of a polygraph test undergone by Fields should have been admitted at trial because the prosecution and defense had made an agreement to that effect. The sixth argument seeks relief on the ground that the state violated an agreement to dismiss the prosecution if the defendant passed a lie detector test.

In Louisiana, the results of a polygraph test are inadmissible when offered by either party, either as substantive evidence or to demonstrate the credibility of a party or witness. State v. Titus, 358 So.2d 912 (La.1978); State v. Whitmore, 353 So.2d 1286 (La.1977). Moreover, the trial court has the discretion to rule the results inadmissible even if the defense and prosecution have stipulated their admission. State v. Corbin, 285 So.2d 234 (La.1973). Here the relator has not demonstrated an abuse of this discretion.

The relator’s argument that the prosecution was bound to dismiss proceedings against Fields once he passed the lie detector test has not been passed on in this jurisdiction. In State v. Clark, 284 So.2d 781 (La.1973), supervisory writs were denied on similar facts with the notation that the defense contention could be reviewed on appeal in case of conviction. Dissenting to the denial, Justice Barham argued that the state should be compelled to carry out its end of the bargain once the defendant proved he had passed the test. See also, State v. Hingle, 242 La. 844, 139 So.2d 205 (1962).

Although the record reveals that the relator took and passed a polygraph test administered by Roy Jacobs, the only evidence of an agreement with the prosecution is the relator’s uncorroborated hearsay testimony. Fields did not call the trial attorney to testify at the evidentiary hearings concerning the agreement’s existence, and the prosecution evaded the issue by asserting that it obviously could not have entered into such an agreement since it later prosecuted Fields. In the absence of a satisfactory record we cannot decide the factual issues and will not speculate on the effect of such a bargain until it is proved.

These arguments offer no grounds for relief.

Accordingly, the ruling of the district court denying the writ of habeas corpus is affirmed.

       Judge Pike Hall, Jr., Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . But see State v. Catanese, La., 368 So.2d 975, decided this day.

      . The defendant was apparently acquitted since no appeal was lodged in this court.


author:
TATE, Justice.
     BLANCHE, Justice,

text:
    STATE of Louisiana, Appellee, v. Bernard JONES, Appellant.
    No. 63004.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.
    Walter L. Sentenn, Jr., Robert Barnard, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Maurine A. Carroll, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was convicted of three counts of armed robbery, La.R.S. 14:64, and sentenced to 99 years on each count, sentences to run concurrently. Upon his appeal, he urges eight assignments of error.

Seven of the assignments present no reversible merit, and we conditionally affirm the conviction.

However, Assignment 4, for the reasons to be set forth, requires us to remand this case for proceedings to determine whether there is reasonable ground to doubt the defendant’s mental capacity to proceed and to assist counsel. La.C.Cr.P. arts. 641, 643.

Assignment 4

After the noon recess on the first day of the trial, the defendant’s counsel moved the court to appoint a sanity commission to determine the accused’s mental capacity to assist in his defense. La.C.Cr.P. art. 641. He relies upon La.C.Cr.P. art. 642, which provides that the accused’s mental capacity to proceed “may be raised at any time” and that no further steps in the prosecution shall be taken “until the defendant is found to have the mental capacity to proceed.”

The defendant’s counsel based his motion upon several circumstances: the defendant’s furnishing him alibi witnesses who (it turned out) were to an event three days earlier than one of the robberies, and the defendant’s insistence that these witnesses testify; the defendant’s apparent inability to assist counsel in locating and examining witnesses (and his consistent misinformation as to them). Counsel further stated that, in his opinion, the accused did not understand the seriousness or complexibility of the charges and that the accused could not recall or relate the facts with any consistency.

In denying the motion, the trial court relied upon the circumstance that the trial attorney had been representing the accused for almost two months, yet did not raise the issue until after the jury was selected and during the first day of the trial. The trial court apparently accepted the state’s arguments that a distinction should be made between a non-cooperative attitude on the part of the defendant and a mental incapacity to proceed. The state noted that the defendant had been in court before on several motions without any issue of mental incapacity being raised until after the jury was sworn.

The difficulty with the state’s argument is that the accused had never testified in any of these proceedings. Therefore, the trial court itself had no previous opportunity to become acquainted with the accused’s mental capacity, aside from observing him sitting at the counsel table during the brief hearing on pre-trial motions held two weeks prior to the trial.

The trial court need not appoint a sanity commission unless it has reasonable cause to doubt the accused’s mental capacity. La.C. Cr.P. art. 643. Nevertheless, defense counsel does not appear to have been unreasonable in requesting the court to “independently interview the defendant on the witness stand and determine for itself the allegations of incompetency” made by him.

Counsel apologized to the court for raising the issue so late. He explained that he did not himself become seriously concerned with the accused’s mental incapacity to assist in his defense until the weekend before and during the morning of the trial, when the accused refused to take seriously the overwhelming evidence against him in conversations between him, his mother, and defense counsel. Counsel had earlier noted to the court that the accused'insisted that he call certain alibi witnesses to testify who would hurt rather than help his case.

Under these circumstances, where non-frivolous allegations were made by defense counsel, the trial court was required to allow “no further steps in the criminal prosecution . . . until the defendant is found to have the mental capacity to proceed.” La.C.Cr.P. art. 642. See also State v. Gunter, 208 La. 694, 23 So.2d 305 (1945).

In State v. Keys, 346 So.2d 169 (La.1977), likewise the issue was raised in mid-trial. There, the trial court halted the proceedings and determined, by interrogating the accused, whether reasonable ground to doubt the accused’s mental capacity required the appointment of a lunacy commission. (It did not).

In the instant ease, the trial court was in error in not following a similar procedure. This is required by La.C.Cr.P. art. 642, when the issue of the accused’s mental incapacity is raised by non-frivolous contentions, and the trial court has not itself been previously able to satisfy itself as to whether or not there is “reasonable ground to doubt the defendant’s mental capacity to proceed”, La.C.Cr.P. art. 643.

The trial court may indeed satisfy itself, by interrogating the defendant, that there is no substantial reason to doubt the accused’s mental capacity. If not, it is not required to appoint a sanity commission. However, it seems to us, it could not consistently with La.C.Cr.P. art. 642 ignore, as belated, substantial allegations of incompetency raised by the accused’s counsel after the commencement of the trial (at least, where counsel offered a reasonable explanation for not raising the issue earlier).

Decree

We therefore affirm the defendant’s convictions and sentences, conditioned upon the following:

The case is remanded for the trial court to make a determination, by interrogation of the accused and considering such other evidence as may be offered, as to whether reasonable grounds exist to order a mental examination as required by La.C.Cr.P. art. 642.

Should the trial court determine either that no reasonable ground requires a mental examination or, if mental examination is required, that the defendant is (was) competent to assist in his defense and to stand trial, then the convictions and sentences will not be disturbed as affirmed. (However, the defendant is reserved the right to apply for supervisory review of the final determination in the trial court as to his competency.)

If, on the other hand, the trial court determines that the defendant was incompetent to stand trial, the verdicts must be set aside, and the defendant be remanded to a proper mental institution for custody, care, and treatment in accordance with La.C.Cr.P. art. 648. See State v. Bennett, 345 So.2d 1129 (La.1977).

CONVICTIONS CONDITIONALLY AFFIRMED; CASE REMANDED FOR MENTAL COMPETENCY DETERMINATION.

SUMMERS, C. J., dissents.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice,

dissenting.

I respectfully dissent.

Counsel moved for a sanity hearing on the morning of trial, mainly because the alibi witnesses furnished by defendant would not substantiate defendant’s alibi, or more probably, because his client did not understand the difference between available pleas and their consequences. (Probably the difference centered around his pleading guilty with the possibility of getting some break on sentence, vis-a-vis putting the court through a trial which was bound to end in proving his guilt.)

I sympathize with the trial judge. The veniremen were all present and ready for trial; the trial had been set weeks in advance; and for the first time, on the morning of trial, the court heard from counsel that his client was unable to assist in his defense. ■

Defense counsel made nothing but con-clusory allegations, giving no specifics to the court on which to justify holding a hearing on the issue of defendant’s mental capacity to proceed and to assist counsel.

It seems to this writer that with proper consultation and communication between defense counsel and his client the question of the defendant’s mental capacity to stand trial should have become obvious long before the very morning of trial.

The defendant bears the burden of establishing by a preponderance of the evidence reasonable grounds for the judge to believe that he was mentally defective, and where the matter is presented by bare allegations without supporting evidence, the exercise of discretion conferred on the trial judge will not be disturbed. State v. Vincent, 338 So.2d 1376 (La.1976).

       Judge Cecil C. Cutrer, Louisiana Court of Appeal, Third Circuit participated in this decision as an Associate Justice Ad Hoc.

      . We discuss them in an appendix to this opinion, which will not be published but will remain a public record of this court.

      . In State v. Burnette, 337 So.2d 1096 (La.1976), we found no error in the trial court’s refusing to follow this procedure when a mid-trial motion questioning mental capacity was made. There, however, the trial court had the opportunity for extended observation of the accused, who moreover had personally filed and argued motions before the court.


author: PER CURIAM.

text:
    STATE of Louisiana v. Michael K. STRAHAN.
    No. 63032.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.

    Max Mercer, Slidell, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Julian Rodrique, First Asst. Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.

       Calogero, J., would grant a rehearing.

   PER CURIAM.

The defendant Strahan was convicted of first degree murder, La.R.S. 14:30 and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Of the twenty assignments of error reserved in the trial court, defendant has briefed and argued thirteen in this Court. These assignments comprise nine arguments.

We find that none of the assignments present reversible error, nor do any involve legal issues not governed by clearly applicable legal principles. The assignments require lengthy factual discussion of interest primarily to the parties, but not involving circumstances likely to recur. We have therefore discussed and disposed of them in an appendix attached to this opinion, which remains a public record of this Court but which is not for publication.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

       Judge Cecil C. Cutrer, Louisiana Court of Appeal, Third Circuit, participated in this decision as an Associate Justice Ad Hoc.


author:
DENNIS, Justice.
     BLANCHE, Justice,

text:
    Mrs. Emetilde GUILLOTTE v. HOUSTON GENERAL INSURANCE COMPANY et al.
    No. 63035.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.

      Benjamin W. Mount, Scofield, Bergstedt, Gerard, Hackett & Mount, Lake Charles, for plaintiff-applicant.
    Allen L. Smith, Jr., Plauche, Smith, Hebert & Nieset, Lake Charles, for defendants-respondents.
   DENNIS, Justice.

The issue presented for our review is whether the court of appeal correctly determined that the jury in this case drew an unreasonable inference of fact when it found that the plaintiff did not appreciate the danger involved in stepping over a string of Christmas lights stretched across a public sidewalk.

On the morning of the accident in the instant case, the plaintiff, Emetilde Guil-lotte, a seventy-eight year old widow, had received her pension check and was walking around the small town of Iowa, Louisiana, paying her monthly bills. She planned to stop last at the Iowa Town Hall for the purpose of paying her water bill. She approached the building using the main sidewalk adjacent to the street. It was her intent to turn in and go up the entrance walkway leading to the Town Hall’s front door. However, when she turned into the walkway, she was confronted by a string of Christmas lights which town employees had stretched across the walkway at a height of about sixteen to twenty inches. Being somewhat startled, because a box hedge bordering the entrance walkway made it physically impossible for her to view the wire before turning into the walkway, Mrs. Guillotte hesitated momentarily, but then decided to step over it. She got one foot over, but her other foot caught the string causing her to fall and sustain a serious fracture of her arm.

Plaintiff filed suit against the town of Iowa and its insurer. After a jury trial, judgment was rendered in her favor and the defendants appealed. The court of appeal reversed and rendered judgment for the defendants. Guillotte v. Houston Gen. Ins. Co., 360 So.2d 1188 (La.App. 3d Cir. 1978). We granted certiorari to determine whether the court of appeal was correct in reversing the jury verdict on the ground that the plaintiff had assumed the risk.

The court of appeal affirmed the jury’s determination that the town of Iowa had breached its duty to manage its property reasonably in view of the probability of injury to others. See, Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976); Cates v. Beauregard Electric Coop., Inc., 328 So.2d 367 (La.1976), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976); Lecompte v. State Dept. of Public Safety, 343 So.2d 449 (La.App. 3d Cir. 1977). By placing the string of Christmas lights across the main entrance walkway, the intermediate court held, the town breached its duty “to protect pedestrians from stumbling and injuring themselves.” 360 So.2d at 1190. After reviewing the record in the instant case we conclude that the court of appeal’s conclusion in this respect was correct.

The court of appeal fell into error, however, when it reversed the jury’s finding that the plaintiff had not assumed the risk which resulted in her injury. Although it recognized that reasonable inferences of fact drawn by a jury should not be disturbed upon review, see, Canter v. Koehring Co., 283 So.2d 716 (La.1973), the intermediate court overturned the jury’s reasonable inference that Mrs. Guillotte did not fully know and appreciate the danger involved in stepping over the sixteen to twenty inch high light cord.

As the court of appeal stated, the evidence is unquestionably clear that Mrs. Guillotte saw the string of lights, hesitated, and then attempted to cross over it. Assumption of risk, however, is an affirmative defense, La.C.C.P. art. 1005; Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1977), which obliges the defendants to prove that Mrs. Guillotte, with full knowledge and appreciation of the danger which produced her injury, voluntarily exposed herself to that risk. McInnis v. Fireman’s Fund Ins. Co., 322 So.2d 155 (La.1975); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); Schofield v. Continental Ins. Co., 330 So.2d 376 (La.App. 4th Cir. 1976); Pollard v. Roberts, 306 So.2d 801 (La.App. 2d Cir. 1975). See also, F. Stone, Tort Doctrine, §§ 294-296 in 12 Louisiana Civil Law Treatise (1977); 2 Harper & James, The Law of Torts, § 21.2 (1956); Symposium, Assumption of Risk, 22 La.L. Rev. 1-166 (1961). Although the record is clear that she saw the light cord and voluntarily stepped over it, the conclusion that she actually, subjectively comprehended the risk of losing her balance and falling is by no means irrefutable. In fact, the only direct evidence relative to her particular level of awareness indicates that she thought she could cross the wire safely:

“Mrs. Guillotte, isn’t it correct that when you started to cross over that wire you thought you could make it?
“A. I thought I could, because I wouldn’t have started if I didn’t know that I could.”

This testimony suggests that Mrs. Guillotte, who was spry and alert despite her age, appreciated no danger but thought that she safely could negotiate the Christmas light cord, which could have been as low as sixteen inches above the sidewalk. None of the other evidence in the record is necessarily inconsistent with this interpretation. Accordingly, we conclude that the jury’s apparent inferences that Mrs. Guillotte did not appreciate the danger involved in stepping over the string of lights, and therefore did not assume the risk, were reasonable and should not have been disturbed upon review.

For the reasons assigned, the parties having specified no other issues for our review, the judgment of the court of appeal is reversed, and the judgment of the district court is reinstated.

REVERSED. TRIAL COURT JUDGMENT REINSTATED.

BLANCHE, J., dissents with reasons.

BLANCHE, Justice,

dissenting.

I respectfully dissent.

This writer agrees with the opinion of the Court of Appeal. In my opinion, it correctly held that the plaintiff consciously and knowingly exposed herself to the risk of falling when she stepped over the Christmas lights. Unfortunately, she tripped. Unfortunately, she was seventy-eight years old. Unfortunately, she hurt herself. Unfortunately, defendant had to be insurer for her mistake in judgment.

       Judge Pike Hall, Jr., Louisiana Court of Appeal , Second Circuit, participated in this decision as an Associate Justice Ad Hoc.


text:
    STATE of Louisiana v. Joshua M. BURSH, II.
    No. 63039.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.
    Walter C. Dumas, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge and Walter L. Smith, Jr., Asst. Attys. Gen., Ragan D. Madden, Dist. Atty., O. L. Waltman, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant, Joshua M. Bursh, II, was charged by grand jury indictment on November 8, 1977, with violating LSA-R.S. 14:67 in connection with the misappropriation of $26,500. On April 27, 1978, a jury found defendant guilty as charged, and defendant was subsequently sentenced to serve six years at hard labor. The trial court denied a defense motion for new trial and defendant lodged this appeal. We affirm.

In 1976, Joshua Bursh, II, was an employee of Grambling State University (Gram-bling), and also acted as Executive Director of Grambling State University Foundation, Inc. (Foundation), a nonprofit organization dedicated to the furtherance of Grambling. The Foundation made a loan to Grambling in the amount of $85,920.76 by transferring certificates of deposit owned by the Foundation to Grambling’s bank account at the First National Bank of Ruston in Ruston, Louisiana.

On August 31, 1976, Grambling issued a check for $26,500 payable to Joshua Bursh, Custodian, Grambling Foundation, as partial repayment of the $85,920.76 loan. Bursh neither deposited the check to the Foundation’s account nor reduced the debt owed by Grambling to the Foundation by that amount. Instead, Bursh, on August 31,1976, went to the First National Bank of Ruston, endorsed and negotiated the Gram-bling check, and had First National issue three cashier’s checks in the amounts of $6,000, $8,000 and $12,000, all payable to “Joshua Bursh, Custodian Grambling Foundation, GSU.” The extra $500 was paid to Bursh in cash and converted to his own use.

Several days later, on September 3, 1976, Bursh opened an account in the name of “Joshua M. Bursh, II, Attorney at Law Trust Account” at the Lincoln Bank & Trust Company in Ruston and deposited the three cashier’s checks to that account, withholding to himself $1,000 cash which he converted to his own use. The evidence showed that thereafter Bursh wrote checks on that account to meet his personal debts.

On this appeal defendant has filed forty-two assignments of error. We have carefully considered each and every assignment and find them all to be wholly without merit.

For the reasons set forth above, the conviction and sentence of the defendant are affirmed.

AFFIRMED.

       Judge Cecil C. Cutrer, Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.