author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Randy MILLET.
    No. 60635.
    Supreme Court of Louisiana.
    March 6, 1978.

      Stephen J. Hornyak, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Roy P. Blondeau, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Randy Millet was charged with distributing heroin to one Henry Duf-forc. He was tried by jury, found guilty as charged, and sentenced to life imprisonment. On appeal he relies upon eight as-, signments of error. Finding merit in his first assignment, we pretermit consideration of his other contentions.

The evidence at trial revealed that Officers Higgenbothem and Machauer of the Jefferson Parish Sheriff’s Narcotics Division received a telephone call on September 27, 1975 from an unnamed confidential informant. Although the policemen did not testify as to what they were told by the informant because the trial judge maintained defendant’s challenge to the admission of hearsay testimony, as a result of the phone call Officer Higgenbothem set up a surveillance at 517 Debbie Drive in West-wego and Officer Machauer met the informant and one Henry Dufforc at that address. Then Officer Machauer and Dufforc drove to another Westwego address where Dufforc got out and met for a few moments with Randy Millet. It was during this meeting between Dufforc and Millet that the single sale of heroin on which this prosecution is based allegedly took place. Officer Higgenbothem, who was trailing in his vehicle, could not say that he saw a sale or transaction; he saw nothing change hands. The other officer, Michael Machauer, testified that he observed Dufforc hand Millet what seemed to be money, and Millet handed him an object which “appeared to be shiny.” Dufforc put the object in his left hand pocket. The officer said he could not tell what the shiny object was and could not state that Millet sold drugs to Dufforc. Dufforc and Millet entered the agent’s car and they drove to another address where Millet got out. After the agent and Duf-forc drove back to Dufforc’s residence, Duf-forc took five pieces of aluminum foil out of his left-hand pocket. Keeping one of the packets, Dufforc gave four packets to the agent; these proved to contain heroin. ' Several months later, both Dufforc and Millet were arrested for distribution of heroin.

In assignment of error number one, defendant alleges that the court committed reversible error in permitting certain hearsay testimony into evidence, over defense objection. Officer Machauer was permitted to recite that when he met Dufforc at 517 Debbie Drive Dufforc told him that they would have to see defendant Randy Millet in order to purchase the heroin.

The challenged testimony of state’s witness Officer Michael Machauer is as follows:

“Q When you set out with Henry Duf-forc, what was the purpose of your meeting Randy Millet?
A From what I understand from Henry Dufforc, it was, they were to score Heroin.
Q Did he tell you he would score Heroin from Randy Millet?
MR. HORNYAK:
Objection, hearsay.
MR. BARROW:
It’s part of the res gestae.
MR. HORNYAK:
Not if it’s not a continuous matter involving the defendant it’s not part of the res gestae.
THE COURT:
Let me check something. Court feels from the testimony that was heard that this question involved a continuous transaction over a short period of time. The question asked involved part of the res gestae, therefore, the objection is overruled.
MR. HORNYAK:
Respectfully reserve a Bill, Your Honor.
THE WITNESS:
What Henry told me when I asked him if he had any of the stuff, referring to Heroin, he said we’re going to have to go see Randy.” [Emphasis added]

Henry Dufforc was not called to testify, although he was admittedly available since he had begun serving his sentence for participating in this illicit transaction, apparently having pled guilty the day. before Millet’s trial. Defendant now claims that the admission of the officer’s testimony that Dufforc had told him that “we’re going to have to go see Randy [defendant Randy Millet]” to purchase heroin constituted hearsay and was wrongly admitted into evidence at his trial.

Hearsay evidence is an out-of-court unsworn statement offered at trial to prove the truth of the matter contained in the statement, and thus resting for its value upon the credibility of the declarant. State v. Martin, 356 So.2d 1370 (La.1978); State v. Bean, 337 So.2d 496 (La.1976); McCormick, Law of Evidence § 225 at 449 (Hornbook ed. 1954). The contested statement gave significant support to the inference that at the meeting between Duf-forc and Millet defendant had indeed committed the crime in question by selling heroin to Dufforc. No direct evidence that a sale took place was admitted at trial since neither officer could testify that he saw money or aluminum foil packets change hands. Thus, only from Henry Dufforc and/or defendant Millet could there have come such direct evidence of a sale. Duf-forc was not called and did not testify while Millet, not being compelled to take the stand, likewise did not testify, nor were any confessions or admissions introduced against him. Even the circumstantial case against Millet was a rather weak one because Dufforc was not searched before he was given the drugs. The officers thus stated that they could not be sure that the drugs he gave them were not already on his person when they met him. Thus the statement of Officer Machauer that Henry Duf-forc told him that they would “have to go see Randy” to purchase heroin supplied significant evidence at trial that the meeting between Dufforc and Millet was to be for the purpose of Millet’s selling heroin to Dufforc. Coupled with this testimony, the otherwise weak proof of a Millet-Dufforc sale took on a much stronger character.

In Dufforc’s statement implying that he did not have any heroin, and relating that he and Machauer would have to “go see Randy” there is implicit one or the other of the following assertions:

1) Randy sells heroin and is going to sell us some. I’ve made the arrangements with him; or,
2) While I don’t have any heroin, I know someone, Randy, who sells heroin and will probably sell us some.

Either implication is fraught with prejudice to defendant and highly probative in its effect upon the construction which the jury is called upon to give the later Millet-Duf-forc street encounter.

The Dufforc statement, with one or the other of these necessary implications noted above, was thus offered to prove the truth of the matter contained therein, i. e., either that Dufforc had arranged with Millet to have Millet make a sale or at least that Millet sells heroin currently or has sold heroin in the past and for that reason will probably be willing to do so again. Because Dufforc’s unsworn statement was made out of court and was presented by a witness to whom .the statement was purportedly made to show the truth of the matter asserted therein, it was hearsay evidence and inadmissible at trial unless otherwise permitted by provisions of the Code of Criminal Procedure. R.S. 15:434.

The state contends, however, that the statement was admissible in evidence as part of the res gestae and, as such, constituted an exception to the prohibition against hearsay.

The res gestae exception is statutorily defined as follows:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.” [R.S. 15:447]
* * * * * *
“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.” [R.S. 15:448]

The res gestae exception to the hearsay rule allows the admission of testimony concerning utterances made before, during and immediately after a crime because statements made under the pressure and excitement of a crime or other extraordinary occurrence carry a special reliability. State v. Bean, supra; State v. Batiste, 318 So.2d 27 (La.1975); State v. Mays, 315 So.2d 766 (La.1975). Unlike statements made in the course of ordinary conversation when the speaker normally weighs his words as he talks, it is believed that spontaneous and impulsive words which are spoken during the criminal transaction, or as a part of it, are reliable statements, admissible into evidence even without the usual safeguards of admitting only the testimony of those who are sworn to tell the truth and are available for cross examination. II Wharton’s Criminal Evidence §§ 297, 301 (13th ed., Torcia ed. 1972); McCormick, Law of Evidence § 274 at 587 (Hornbook ed. 1954).

The state relies for its argument that Dufforc’s statement was admissible as res gestae on the case of State v. Joseph, 341 So.2d 861 (La.1977). The three defendants there, Joseph, Fluker and Kelly, were charged with distribution of heroin. Joseph and Fluker were jointly tried, but Kelly’s case was severed. At the trial of Joseph and Fluker, undercover officer Larry Taplin was allowed, over defense objection, to relate words said to him by Kelly. In that conversation, the officer and Kelly agreed to the price and quantity of the heroin buy which was to actually take place between them about two hours later. We concluded that there was no error in the admission of the hearsay statements because we found that these negotiations were “integral parts of the entire transaction culminating in the actual sale and delivery of the heroin approximately two hours later,” and, as such, were admissible as res gestae because they were “necessary incidents of the criminal act.” 341 So.2d at 867; R.S. 15:448.

We find the Joseph case distinguishable from the case under consideration here. In Joseph the words of an apparent principal in setting up a later sale with an undercover officer were allowed to be related by the officer. Those words were not, as in this case, accusatory, as relates to the purported co-perpetrators, the defendants Joseph and Fluker. While all of the facts regarding Joseph’s and Fluker’s involvement in the crime are not apparent from the Joseph opinion (defendant Joseph was convicted of distribution of heroin and defendant Fluker attempted possession with intent to distribute heroin, apparently incident to the Kelly-Taplin heroin sale), we can properly assume that Joseph and Fluker were charged as principals in the Kelly-Taplin sale. In any event the purportedly hearsay Kelly statement did not recite as fact matters concerning the conduct of defendants Joseph or Fluker, but, instead, related to the price, quantity and time of the prospective Kelly-Taplin sale of heroin.

The real difficulty with allowing as part of the res gestae Dufforc’s statement that Millet sells heroin or that Millet has agreed to sell heroin is that, independent of that statement, there is little or no adequate proof of a criminal act (i. e., the Millet-Dufforc sale). The state’s contention is essentially a boot strap operation. Duf-forc’s hearsay statement that they would have to see Millet to purchase heroin constitutes proof that there has later taken place a crime (the Millet-Dufforc sale of heroin), occurrence of which is a necessary prerequisite to employing the res gestae exception to the hearsay rule.

Were we to allow such legal contrivance it would be possible for a Dufforc attempting to frame a Millet to do so without ever having to testify and be cross-examined concerning the damning assertions that Millet sells heroin or that Millet arranged to sell us heroin.

Had the state been able to show a Duf-fore-Millet sale with independent plausible evidence e.g., Dufforc’s testimony that he and Millet transferred money and heroin, or Machauer’s or Higgénbothem’s testimony that he observed a Dufforc-Millet transfer of money and heroin, or other evidence, Machauer’s testimony as to Dufforc’s statement might well have been permissible because then fitting the res gestae exception to the hearsay rule. Absent such a showing that a crime occurred, we will not in the guise of a res gestae exception to the hearsay rule permit defendant’s unsworn, out-of-court statement to influence the jury’s determination that Millet sold heroin to Dufforc in a street encounter which neither observing officer could identify as a heroin sale.

The state argues, alternatively, that the declaration was properly admitted because Dufforc and Millet were co-conspirators and that this statement, made in furtherance of the conspiracy, was admissible under R.S. 15:455. That statute provides as follows:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.”

Apparently the state believes that a prima facie case of conspiracy was established between Dufforc and Millet and, that being so, Millet was as responsible for Dufforc’s words as was the speaker. Contrary to the state’s position, however, there was no evidence of conspiracy in this case. The testimony that Dufforc and Millet met for a few moments does not constitute prima facie evidence of a conspiracy. And the only other bit of evidence joining them is the statement of Dufforc’s here at issue. The state cannot be heard to argue that the very statement at issue itself supplies the prima facie case of conspiracy; the proof of conspiracy must be made by separate admissible evidence. See State v. Brumfield, 329 So.2d 181 (La.1976); State v. Kaufman, 331 So.2d 16 (La.1976).

Although not argued in brief, the state in oral argument raised a third contention in response to this assignment: that the failure of defense counsel to object when a similar statement was made at an earlier point in Officer Machauer’s testimony constituted a waiver of objection to this testimony, and caused his later objection to the statement’s admission to be ineffective. We find this contention without merit.

It is clear from the record that the officer did, in the midst of a lengthy narrative in which he apologized to the court for speaking softly, say “Henry [Dufforc] stated to me that he didn’t have any [heroin] at the time and he would have to go see Randy.” The defense counsel did not object on that occasion but, a few moments later, when that testimony was highlighted by the prosecutor and repeated by the witness, counsel did object and, by that objection, informed the judge of the error and allowed him to take curative steps.

That objection with its stated legal basis satisfied the purpose of the contemporary objection requirement, C.Cr.P. art. 841, because it called the error to the judge’s attention and gave him the opportunity to refuse admission of the reemphasized hearsay declaration. Had the ruling been proper, it would have facilitated the court’s admonishing the jury (ex proprio motu, or on request of defendant) to disregard the previous statement of the witness, however inaudible, to the same effect. In a similar situation in State v. Lee, 346 So.2d 682, 685 (La.1977) we said:

“The only effect we can see in counsel’s failure to promptly request relief was that the trial was unnecessarily continued beyond a point when it should have been aborted. We do not find that sufficient reason to bar defendant from making a later motion when the error was blatantly repeated. Therefore we hold that the trial judge erred in refusing to grant defendant a requested mistrial when the prosecution during rebuttal argument stated and stressed that defendant Lee had been convicted of this very murder on an earlier trial of the case.”

Moreover, given the importance of the statement as proof that the crime defendant Millet was accused of committing occurred at all, as previously discussed, we cannot say that the judge’s erroneous ruling was harmless simply because the statement, now accentuated, was already before the jury. C.Cr.P. art. 921.

Decree

Accordingly, defendant Randy Millet’s conviction and sentence are set aside, and the case is remanded for further proceedings not inconsistent with the views expressed herein.

REVERSED AND REMANDED.

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

      . Officer Higgenbothem was asked: “Did you see a sale of narcotics take place between Randy Millet and anyone?” He answered: “I saw Randy Millet and Henry Dufforc meet. I didn’t see any type of transaction or anything. * * I saw nothing change hands.”

      . The fact that this statement was admitted to prove the truth of the matter contained therein is further supported by the reliance of the state on the statement in opening and in closing arguments as its proof that the street encounter between Dufforc and Millet actually was the occasion for a sale of heroin. In his opening statement the prosecutor said:
      “Now Agent Machauer will testify that he purchased the Heroin from an individual other than the defendant. He will also testify that during the original transaction was set up, the transaction was set up on the understanding that the original purchase would be made from the defendant to this other individual and then transferred to Agent Ma-chauer.”
      In his closing statement, the prosecutor again relied on the Dufforc statement as proof that the crime occurred when he stated: “You heard Agent Machauer testify that Henry Duf-forc told him that he did not have any drugs, that he could score the drugs from Randy Millet and that is what in fact he did.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Steve Brose FONTENOT.
    No. 60469.
    Supreme Court of Louisiana.
    March 15, 1978.

      Jack W. Caskey, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., A. Bruce Rozas, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On September 3, 1975, the Evangeline Parish Grand Jury indicted defendant Steve Fontenot for the crime of aggravated rape, a violation of La.R.S. 14:42. He was tried before a twelve person jury which unanimously found him guilty as charged. Thereafter, on February 27, 1976, the trial court sentenced defendant to death, a penalty then required by law for the crime of aggravated rape. On appeal, defendant relies upon nine assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 3

By this assignment, defendant argues that the penalty imposed was unconstitutional. Several months after defendant was sentenced, the United States Supreme Court invalidated the death penalty provision of Louisiana’s aggravated rape statute. Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). We subsequently determined that when the sentence must be set aside under Selman, the accused should be resentenced to the most serious penalty provided for a lesser included offense at the time of the crime. State v. Volson, 352 So.2d 1293 (La.1977); State v. Craig, 340 So.2d 191 (La.1976); State v. Sledge, 340 So.2d 205 (La.1976).

At the time the present offense was committed (June 13, 1975), attempted aggravated rape was punishable by imprisonment at hard labor for not more than twenty years while the crime of simple rape carried a penalty of imprisonment at hard labor for not less than one nor more than twenty years. Accordingly, the appropriate sentence in this case is imprisonment at hard labor for a term of twenty years.

ASSIGNMENT OF ERROR NO. 4

Defendant suggests that he may not have been effectively represented by court-appointed trial counsel. However, it is impossible to determine the merit of this claim from the record before us. Allegations of ineffective assistance of counsel are more properly raised by application for a writ of habeas corpus in the district court, where a full evidentiary hearing on the matter may be ordered. State v. Collins, 350 So.2d 590 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Marcell, 320 So.2d 195 (La.1975). Consequently, we decline to review the issue presented at this time.

We have examined defendant’s remaining assignments of error and found them to be without merit.

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


text:
    Louis G. VILLAUME v. Christine R. VILLAUME. Christine R. MAHAR v. Louis G. VILLAUME.
    No. 61801.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Christine R. Mahar applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 355 So.2d 1084.

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


text:
    John H. ANDERSON and Noemie L. Anderson v. Jessie B. WEST, Aetna Casualty and Surety Company and Hartford Accident and Indemnity Company.
    No. 61834.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: John H. Anderson and Noemie L. Anderson, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 636.

Writ denied.

SUMMERS, J., vote to grant.


text:
    STATE of Louisiana v. Donald Ray THOMPSON and Bobby Ray Rax.
    No. 61939.
    Supreme Court of Louisiana.
    April 4, 1978.
   In re: Donald Ray Thompson and Bobby Ray Rax, applying for writs of certiorari, prohibition, mandamus and for stay order Caddo Parish.

Application denied; there is not a sufficient showing that the trial judge abused his discretion.


text:
    STATE of Louisiana v. Joseph J. MORGAN and Edith B. Morgan.
    No. 61934.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Joseph J. Morgan and Edith P. Morgan, applying for writs of certiorari, prohibition, mandamus and for stay order. Parish of West Feliciana.

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


text:
    STATE of Louisiana v. Bennie SMITH.
    No. 61861.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Bennie Smith applying for writs of certiorari, mandamus and prohibition. Parish of Tangipahoa.

Granted in part. The State should furnish applicant tapes of grand jury testimony of witnesses who testified consistently with views expressed by applicant in his testimony before the grand jury. Otherwise, the writ is denied.


text:
    STATE of Louisiana v. Brent TURNIPSEED.
    No. 61881.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: State of Louisiana through the District Attorney, Ossie Brown, applying for supervisory writs. Parish of East Baton Rouge.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Douglas M. Gonzales, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 21st day of April, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.


author: TATE, J.,

text:
    Karen Anne Krupp, wife of James R. SUTTERFIELD v. James R. SUTTERFIELD.
    No. 61816.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Karen Krupp Sutterfield applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 707.

Writ denied.

TATE, DIXON and CALOGERO, JJ, would grant.

TATE, J.,

notes that the tort cause factor for abuse of process is independently available to the relator, in his opinion.


text:
    Mrs. Louise Whitfield WILLIS v. Bernel W. WILLIS.
    No. 61819.
    Supreme Court of Louisiana.
    March 31, 1978.
   In re: Bernel W. Willis applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 355 So.2d 999.

Denied.

SUMMERS and CALOGERO, JJ., would grant.


text:
    STATE of Louisiana v. Lillie Mae JACKSON.
    No. 61850.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Lillie Mae Jackson applying for supervisory writs and stay order. Parish of Orleans.

Granted. The conviction is affirmed, but the sentence is set aside and the ease is remanded to the district court for re-sentencing in compliance with Louisiana Act 635 of 1977, § 1 C.

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


text:
    STATE of Louisiana v. Warren Michael SMITH.
    No. 61933.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Warren Michael Smith, applying for writs of certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Ronald J. DANIEL.
    No. 61919.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Ronald J. Daniel applying for writs of review, prohibition, mandamus and stay order. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Irvin E. WILLIAMS v. 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON.
    No. 61875.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Irvin E. Williams, applying for writ of mandamus. Parish of Jefferson.

Writ denied. Moot.


text:
    Anthony Joseph MYERS v. STATE of Louisiana.
    No. 61874.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Anthony Joseph Myers, applying for writs of certiorari.

Writ denied.


text:
    STATE of Louisiana ex rel. Arthur GUILLORY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and 27th Judicial District Court, Parish of St. Landry.
    No. 61868.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Arthur Guillory applying for writ of habeas corpus. Parish of St. Landry.

Denied.


text:
    STATE of Louisiana ex rel. John FULFORD v. Michael BEAUBOUEF.
    No. 61866.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: John Fulford applying for writs of certiorari and mandamus. Parish of East Baton Rouge.

Writ refused.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 61864.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Larry Joe Phillips applying for remedial writs. Parish of Orleans.

Writ denied. An appeal is pending.


text:
    Kathleen T. SEVERANCE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 61863.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Kathleen T. Severance, applying for certiorari, or writ of review, to the

Court of Appeal, Second Circuit. Parish of Red River.

Writ denied.


author: SUMMERS, J., TATE, J.,

text:
    James R. PICTON v. The SEWERAGE AND WATER BOARD.
    No. 61856.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: James R. Picton, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans.

Writ refused. In denying the writ, we do not necessarily approve the ruling of the Civil Service Commission, but in accordance with our usual practice will not interrupt the proceedings of the Commission at this stage.

SUMMERS, J.,

is of the opinion applicant has not exhausted his administrative remedies. Furthermore, he has an adequate remedy by appeal in the event of an adverse judgment. I would deny this application for these reasons.

TATE, J.,

concurs. The ruling appears to be erroneous and to require a reversal on judicial review. Nevertheless, the exercise of our supervisory review does not ordinarily permit repeated" interlocutory review of evidentiary rulings.


text:
    STATE of Louisiana ex rel. Waldo SHORT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and Criminal District Court, Parish of Orleans.
    No. 61867.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Waldo Short, applying for writ of certiorari. Parish of Orleans.

Writ denied.

DIXON, J., is of the view that an eviden-tiary hearing should be ordered.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Roy Edward SEGERS.
    No. 60388.
    Supreme Court of Louisiana.
    April 10, 1978.
    Thomas W. Davenport, Jr., Davenport, Files, Kelly & Marsh, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Walter L. Smith, Jr., Roland T. Huson, III, R. Neal Wilkinson, Asst. Attys. Gen., John T. Seale, Dist. Atty., Thomas F. Wade, Asst. Dist. Atty., for plaintiff-appellee.
   ON REHEARING

SUMMERS, Justice.

Rehearing was granted to consider defendant’s contention that the case should be remanded for resentencing at which time the defendant would be afforded an opportunity to be confronted with evidence considered by the trial judge in imposing sentence.

Segers was tried by jury on a charge of possession of marijuana with intent to distribute and conspiracy to distribute marijuana. He was found guilty on both counts and sentenced to serve four years imprisonment at hard labor and to pay a fine of $7,500 for conspiracy and eight years at hard labor and a fine of $15,000 for possession with intent to distribute. After trial and before sentencing, the trial judge conducted a presentence hearing and obtained a presentence report.

An objection was .made on behalf of defendant to the “Reasons for Sentence” announced by the trial judge as part of the sentencing procedure. The pertinent portions considered objectionable by the defense are:

“It is to be noted that this case is a companion case to that of State of Louisiana v. Bobby Terrel Smith, # 22303 of the Docket of Tensas Parish. The Pre-sentence Report in that case, as well as a supplemental phone call from a Probation Officer that Mr. Segers has subsequently been to Mexico and has been in the company of Mr. Smith and Mr. Bill Hosea, another Defendant, since this conviction; have been considered by this Court.
“Smith, according to the Pre-Sentence Report, uses cocaine and pills, but claims he is not addicted. Hearsay in the report indicates he is addicted and has employers or friends who are ex-convicts and suspected of being heavily involved in drug traffic. Mr. Segers has been seen . returning from Mexico in his airplane and meeting Mr. Smith and Mr. Hosea. Thus, this indicates that Mr. Segers is still using the airplane for illicit traffic. He purchased the airplane at much less than its alleged value in Court proceedings in Tensas Parish, although the Narcotics Agents indicated that drug traffic is one of the best uses for such plane. The use suggested by the defendant of hauling oil field equipment, seems impractical, improbable and self serving. No corroborating evidence was offered by Defendant.”

The defense relies upon the proposition announced in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), that a convicted person is denied due process of law when the death sentence is imposed, at least in part, on the basis of information that he had no opportunity to deny or explain. While the Gardner case involves a death sentence and may not be binding in a case involving marijuana, the majority of this Court has held in a case involving distribution of marijuana that where a presentence report was shown to be materially and prejudicially false, the trial court erred in failing to allow defense counsel access to the presentence report and an opportunity to rebut any adverse information therein. State v. Underwood, 353 So.2d 1013 (La.1978).

Undoubtedly the trial judge was influenced by the information in the presentence report and the supplemental phone call, as she should have been, if the information was reliable. Therefore, in view of this Court’s decision in State v. Underwood, the defendant should be afforded the opportunity to deny or explain the facts relied upon by the trial judge in imposing sentence. To afford this opportunity it will be necessary to remand the case to the trial court with instructions to conduct an evidentiary hearing at which defendant will be able to deny or explain the facts set forth in the reasons for sentence considered objectionable and prejudicial by defendant. After due consideration of defendant’s denials and explanations, if any, the court shall resentence defendant in accordance with law.

For the reasons assigned, the sentence heretofore imposed in this case is set aside and the case is remanded to the trial court for resentencing in a manner not inconsistent with this opinion.


text:
    STATE of Louisiana v. Yvonne SAULSBERRY.
    No. 61806.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Yvonne Saulsberry applying for Supervisory Writs. Terrebonne Parish.

Denied.


text:
    STATE of Louisiana v. Gerald M. McNABB.
    No. 61539.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Writs of certiorari, prohibition, mandamus and stay order. East Baton Rouge Parish.

Writ denied. Stay order recalled.


text:
    STATE of Louisiana v. Franklin Sanford SYKES.
    No. 61522.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Franklin Sanford Sykes, applying for remedial writs. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Lawrence M. JASPER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, Angola, Louisiana.
    No. 61060.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Lawrence M. Jasper applying for writs of habeas corpus, certiorari, mandamus. Parish of Jefferson.

Denied.


text:
    Jessie R. RANDALL v. RORAN CORPORATION et al.
    No. 61813.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: Jessie R. Randall applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 354 So.2d 1060.

Writ denied.


text:
    William Henry BROWN, Jr. v. STATE of Louisiana Through the DEPARTMENT OF CORRECTION.
    No. 61830.
    Supreme Court of Louisiana.
    April 7, 1978.
   In re: State of Louisiana through the Louisiana Department of Corrections applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.

SANDERS, C. J., SUMMERS and MARCUS, JJ., would grant.


author: LANDRY, Judge.

text:
    Sharon Kay Wheat MARTIN and Ernest E. Martin v. Bertrand A. FEIBER et al. Sharon WHEAT and Early American Dixie Auto Insurance Company v. Bertrand FEIBER.
    Nos. 11669-A, 11669-B.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Charles M. Cassidy of Watts & Cassidy, Franklinton, for plaintiffs Martin.
    Charles W. Rea, Baton Rouge, for plaintiff Dixie Auto. Ins. Co.
    John W. Anthony of Talley, Anthony, Hughes & Knight, Bogalusa, for defendants.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiffs in these consolidated cases, a host driver, her husband, her guest passenger, and the subrogated collision insurer of her 1972 Toyota automobile, appeal judgments dismissing their claims for personal injuries and property damages sustained and incurred when plaintiff’s vehicle was struck from the rear by a vehicle owned and driven by defendant Bertrand Feiber, the insured of defendant Balboa Insurance Company. Lindsey-Feiber Motor Company, Inc., vendor of the Toyota, was also made defendant on the ground the vehicle contained a latent defect which contributed to the accident. We affirm.

This most unusual accident occurred at mid-morning, September 26, 1975, a clear dry day, on La. Highway 21, at the foot of an overpass between Bogalusa and Coving-ton. Mrs. Martin was proceeding southerly along the paved two lane highway accompanied by her aunt, Lucille Blackwell. Driving at a speed of approximately 25 miles per hour, Mrs. Martin traversed the overpass and as she was descending the slope, she noted a dense smoke penetrating the vehicle through the dash. The smoke was so thick that it obscured her vision. She applied her brakes, and told her guest passenger to jump out of the vehicle from her side and Mrs. Martin attempted to leave the car through the opposite door. Mrs. Martin’s foot became entangled in the brake pedal and while in this position, her vehicle was struck from the rear by Feiber’s vehicle which was also proceeding southerly. They both concede that Mrs. Martin stopped as soon as she could when she noticed the smoke entering her car. Mrs. Martin denied, however, swerving her car to the left just before the impact, as contended by Feiber.

Feiber’s testimony differed in that he stated that he was proceeding at a speed of about 35 miles per hour following the Martin car which he had been trailing for about 2 miles. As he reached the crest of the overpass he could see that the road ahead was straight for about a mile and that there was no oncoming traffic. He observed the Martin car about 100 feet or so ahead in its proper lane of travel and decided to pass. He accelerated his vehicle and began pulling into the left lane. When the front of his car was a short distance from the Martin car, both front doors of the Martin vehicle opened suddenly and the Martin car pulled into the left lane in front of him. He then saw smoke coming from the Martin car and observed an explosion. The Martin vehicle was then enveloped in smoke. He pulled his car to the right and applied his brakes and then felt a slight impact. He brought his car to a stop in the right hand lane and drove off the highway onto the shoulder. Upon going to the aid of Mrs. Martin, she told him that she attempted to jump out of her car and in doing so she pulled on the steering wheel thus causing her vehicle to veer into the passing lane.

The accident was witnessed by Ernest L. Breland, who was traveling a short distance behind Feiber. At the top of the overpass Breland noticed the two cars ahead. The Martin car appeared to explode suddenly and smoke completely enveloped both the Martin and Feiber vehicles. As the smoke cleared, Breland saw someone jump from the right side of the Martin car. He then observed the Martin car proceed ahead slowly, veer to the left, proceed down an embankment and come to rest against a tree. He could not tell whether the Martin car was moving at the instant of impact. He estimated that he was about 75 yards behind Feiber when the accident occurred. He considered the accident unavoidable on Feiber’s part.

Based primarily on the contention that Mrs. Blackwell placed the point of impact at the bottom of the overpass, approximately 530 feet from the crest, and Feiber’s testimony that he saw smoke coming from the Martin car when he came over the crest of the overpass, Appellant maintains that the trial court erred in failing to find Feiber negligent under the circumstances and . alternatively, in failing to hold Feiber responsible for not exercising the last clear chance to avoid the accident. The testimony of Mrs. Martin and Mrs. Blackwell, however, is contradicted by that of Feiber and the disinterested witness Breland. Both of these witnesses place Feiber’s automobile in much closer proximity to the Martin car when the emergency arose.

The record reveals that the difficulty with the Martin car resulted from inefficient repair of a radiator hose which caused water and coolant to escape from the radiator. The chemical content of the coolant formed a dense smoke upon coming in contact with the heated engine.

The trial court found that an emergency was created by the smoke and by Mrs. Martin’s veering suddenly into the passing lane as Feiber was attempting to pass. He found no negligence on Feiber’s part in attempting to pass under the circumstances. He also found that when confronted with the emergency created by the Martin car veering into his path, Feiber reacted reasonably and prudently in applying his brakes and veering to the right. The trial court found that the accident was unavoidable on Feiber’s part; that Feiber was not negligent; and, that Feiber did not have the last clear chance to avoid the accident.

Appellate courts must accord great weight to the factual findings of the trier of fact. When testimony is in conflict, reasonable evaluations of credibility and reasonable inferences of fact drawn by the trier of fact should not be disturbed on appeal, except on a showing of manifest error, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We find no manifest error in this instance. On the contrary, we conclude that the factual findings of the trial court are supported by the record.

The judgment is affirmed at Appellants’ cost.

Affirmed.


author: DOMENGEAUX, Judge.

text:
    Melvin H. STEVENS d/b/a Stevens Realty, Plaintiff-Appellant, v. Carol Ann TYNES a/k/a Mrs. Robert J. Tynes, Defendant-Appellee.
    No. 6333.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Writ Refused April 28, 1978.

      John G. Williams, Natchitoches, for plaintiff-appellant.
    Watson, Murchison, Crews & Arthur, R. Raymond Arthur, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is a suit brought by a real estate broker to recover his commission under a listing contract.

Defendant, Carol Ann Tynes, owned a 65-acre tract of land, apparently her separate property, in Natchitoches, which she was thinking of selling. Plaintiff, Melvin Stevens, a real estate broker, thought that the Natchitoches Economic Development Corporation (NEDCO), a federally funded organization, was interested in purchasing the land. He approached Mrs. Tynes and obtained a listing agreement on October 28, 1976. The agreement provided that Stevens would be the exclusive selling agent of the property and that defendant was to receive no less than $1,000.00 per acre. The broker’s commission was to be all amounts received for the land in excess of $1,000.00 per acre and would be due if he found a purchaser who was ready, willing, and able to buy the property. The listing agreement had a term of three months.

In addition to being a broker, plaintiff was also a faculty member of Northwestern State University. Stevens learned of NED-CO’s interest through his association with Doctor Zoel Daughtery, a fellow faculty member who was on the committee appointed by NEDCO to select a site for a proposed vegetable growing project. After securing the listing agreement, plaintiff submitted an oral bid to Daughtery of $1,250.00 per acre for the land. The Tynes site was ultimately approved by the committee.

Before any definite agreement for the sale of the property could be reached, it was necessary for the proposal to be approved by the Board of Directors of NEDCO and the Community Services Administration in Washington, D. C. The approval in Washington was necessary because the Tynes tract did not meet the proposed guidelines originally set forth by the federal government. The guidelines authorized NEDCO to purchase only thirty acres of land at $2,500.00 per acre; the Tynes tract involved sixty-five acres of land at $1,250.00 per acre.

About the same time that the selection committee was considering the Tynes property, Mrs. Tynes telephoned Stevens on November 14, 1976, in order to inform him that she desired the property withdrawn from the market. Plaintiff refused and continued with his plan to have NEDCO purchase the land. He made several contacts with his university colleague, Doctor Daughtery, and with Mr. Ryan Horton, Executive Director of NEDCO, in order to ascertain whether the Board had authorized the purchase. On December 3, 1976, Stevens met with Horton and began negotiations. Horton, however, refused to finalize any plans until the property was appraised and the proper approval and authorization was secured. Although Stevens was ready to finalize the agreement to purchase at this time, he was apparently unaware that the proposal had never been submitted to, let alone approved by, the Board of Directors. He was also unaware that approval from Washington, D. C., would be necessary. Nevertheless, an appraiser, T. J. Stevens, was obtained to conduct an appraisal of the property. When the appraiser contacted the Tyneses he was advised by Mr. Tynes, acting with his wife’s authority, that the property was not for sale. This information was related to Horton, who thereupon ceased to take any further steps towards acquisition.

The property was never sold. Mrs. Tynes withdrew the property from the market because she found that the rental value was much higher than she had been obtaining from her current lessee. A new lease arrangement was entered into at an increased rate, which obviated the necessity of selling the land.

Suit was filed on March 4, 1977, by the broker to recover a commission of $16,-250.00, which would have been the amount had the property been sold at the proposed price of $1,250.00 per acre. In the alternative, plaintiff sought recovery of $4,875.00, which was six percent, or the standard realtor’s percentage, of the total proposed selling price. Further alleging in the alternative, plaintiff sought to recover for the amount of time spent in negotiating the sale of the property. From a judgment denying his right to the commission or recovery on a quantum meruit basis, plaintiff has perfected a devolutive appeal. We affirm.

The issues presented by plaintiff on appeal involve the right of Mrs. Tynes to cancel the listing agreement before the expiration of its term; the right of the broker to collect his commission; and the right of the broker to recover in quantum meruit.

It is apparent that the listing agreement was a valid contract and that revocation could not take place without the mutual consent of the parties. Article 1779 of the Louisiana Civil Code sets forth the necessary requisites of a valid contract.

“Four requisites are necessary to the validity of a contract:
1. Parties legally capable of contracting.
2. Their consent legally given.
3. A certain object, which forms the
matter of agreement.
4. A lawful purpose.”

There is no question that both Mrs. Tynes and Mr. Stevens had the capacity to contract. Concerning the second requisite, Mrs. Tynes testified that she was aware of all the provisions in the contract and that she signed it freely and voluntarily. With regard to the third requisite, it was anticipated at the time the contract was entered into that Mr. Stevens would find a buyer for the property and that he would receive a commission for his services when the property was sold. This was the object of the agreement. Finally, there is no question that the contract had a lawful purpose.

Article 1901 of the Louisiana Civil Code states that:

“Agreements legally entered into have the effect of laws on those who have formed them.
They can not be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.
They must be performed with good faith.”

It follows from this Article that Mrs. Tynes could not have revoked the agreement between Stevens and herself, without Stevens’ consent. It is not denied that Stevens never acquiesced in the revocation. The contract, therefore, was still enforceable while Stevens was attempting to procure NEDCO as the purchaser.

The next issue is whether there could be any recovery under the contract on the part of the broker. It is well settled that a broker can recover his commission when there is no sale, if he procures a buyer who is ready, willing, and able to purchase the property. "In fact, the express provisions of this contract provided that the commission would be due if Stevens found such a buyer. However, we find that in the instant case, Stevens had not procured a purchaser who was ready, willing, and able to buy.

NEDCO was the only prospect Stevens had while the contract was in effect. Although negotiations were under way to secure ultimate purchase of the property, at no stage had they reached such a level that NEDCO was prepared to finalize the sale. The proposal had not even been submitted to the Board of Directors, and there was no guarantee that the Board would have approved the purchase of the property after submission. The facts indicate that such approval may not have been given because the property was not ideally suited to NED-CO’s needs. NEDCO was looking for a tract of land less than half the size of defendant’s property. Furthermore, even had the site been approved by the Board, final approval had to be secured from the Community Services Administration in Washington, D. C., and there was no way of knowing if this approval would be given. In short, the facts of this case clearly establish that Stevens had not procured a purchaser ready, willing, and able to buy the property, thus Stevens was not entitled to his commission on the basis of the contract.

Plaintiff argues, however, that he should be allowed to recover his commission because Mrs. Tynes breached her obligation by allowing her husband to tell the appraiser that the property was not for sale. He contends that since payment of the commission was conditioned in the express provisions of the contract upon finding a purchaser ready, willing and able to buy the property, and since this condition could not be fulfilled because of Mrs. Tynes’ actions, the condition should be considered fulfilled under Article 2040 of the Civil Code, which provides:

“The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it.”

This Article is not applicable to the present case. We feel that in order to consider the condition fulfilled, some showing must be made that the contract would have been fulfilled had it not been for the action of Mrs. Tynes. See George W. Garig Transfer v. Harris, 226 La. 117, 75 So.2d 28 (1954). There has been no evidence which establishes that NEDCO would have purchased the property had it not been for the fact that they were told that the property was not for sale. To find otherwise would be mere speculation or conjecture. We feel, therefore, that the condition cannot be considered fulfilled simply because Horton ceased negotiations after being informed by the appraiser that the property was not for sale.

The last issue concerns plaintiff’s right to recovery under his alternative plea for quantum meruit. We feel that no recovery is due on this basis. Plaintiff rendered no services which were of value to defendant. Furthermore, the broker knew at the time he entered into the contract that he may have been required to incur certain expenses which would go without reimbursement in the event he did not find a person who was ready, willing, and able to purchase the property. Since the contract in this case was valid and could have been collected upon had its conditions been fulfilled, we feel that if plaintiff was to recover on any basis it would have to be by virtue of the contract itself and not under the quasi-contractual remedy of quantum meruit. It is well established that if recovery can be sought on the basis of an express contract, recovery in quantum meruit is not available. Olympia Company, Inc. v. Gervais F. Favrot Company, Inc., 342 So.2d 1275 (La.App. 4th Cir. 1977); Babineaux v. Grisaffi, 180 So.2d 888 (La.App. 3rd Cir. 1965); Pumilia v. Dileo, 169 So.2d 581 (La.App. 4th Cir. 1964); Oldham v. Jones, 136 So.2d 310 (La.App. 2nd Cir. 1961). We therefore find that Stevens was not entitled to relief on a quantum meruit basis.

For the above reasons the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.

      . A contract of brokerage is sui generis and is to be distinguished from that of mandate. Fleming v. Romero, 342 So.2d 881 (La.App. 3rd Cir. 1977), application denied, 345 So.2d 50 (La.1977); Leggio v. Realty Mart, Inc., 303 So.2d 920 (La.App. 1st Cir. 1974), writ denied, 307 So.2d 629 (La.1975); Yiannopoulas, Brokerage, Mandate, and Agency in Louisiana: Civilian Tradition and Modern Practice, 19 La.L.Rev. 777 (1959).


author: WATSON, Judge.

text:
    Bobby Mitchell STEVENS v. ZURICH INSURANCE COMPANY.
    No. 6338.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Earl B. Taylor, Opelousas, for plaintiff-appellant.
    Lewis & Lewis, James T. Guglielmo, Opelousas, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

This is an appeal of a tort claim, by Bobby Mitchell Stevens, plaintiff, who alleges that he was injured while attempting to ride a horse owned by Jeff Benhard, whose liability insurer is defendant, Zurich Insurance Company. The issue on appeal is whether the trial court erred in finding that plaintiff assumed the risk of injury, thus precluding recovery under the strict liability doctrine of Holland v. Buckley, 305 So.2d 113 (La., 1974).

The issue for decision is mostly factual. Stated briefly, the facts are that plaintiff, Bobby Mitchell Stevens, was present at a ranch owned by Mr. Benhard and managed by Jimmy Stevens, brother of plaintiff. Bobby was injured while attempting to ride a horse “Nancy” which had been saddled by Antoine “Blue” Bell, a long-time employee of the ranch. On the day prior to Bobby’s accident, the horse had thrown Bell, causing a slight cut to his chin. Although it is disputed, there is a contention that Bell had been instructed to put the horse aside for further training.

In any event, Bell had saddled the horse on the day of Bobby’s accident and was preparing to ride the horse himself. Bobby undertook to ride the horse and according to Bell’s testimony the horse fell down and Bobby dismounted. Then despite Bell’s warning, Bobby got back on the horse and the horse fell on Bobby’s leg, causing a serious injury.

The trial court found as a fact that Bobby had ample opportunity, after the horse began bucking to dismount safely. Our review of the record indicates a reasonable evidentiary basis for this finding; in fact, the record indicates that Bobby was probably off the horse after it had begun bucking, as Bell testified, and actually remounted to attempt to ride the horse again.

Under these circumstances the trial court found that plaintiff assumed the risk of injury. This finding is clearly correct and under the decision in Holland v. Buckley, supra, there would be no liability on the part of the insurer here because the accident was caused by the fault of the victim. Under the case of Fontenot v. Soileau, 336 So.2d 1006 (La.App. 3 Cir. 1976), plaintiff would be precluded from recovery because he assumed the risk of injury.

Therefore, the judgment of the trial court is affirmed. Costs are taxed against Bobby Mitchell Stevens, appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Emile J. ROGERS, Plaintiff-Appellant, v. The MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD, SULPHUR, Louisiana, Defendant-Appellee.
    No. 6340.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    P. Michael Maneille, Lake Charles, for plaintiff-appellant.
    Charles Coy Broussard, Sulphur, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff, Emile J. Rogers, appeals from a judgment of the Fourteenth Judicial District Court upholding a decision of The Municipal Fire and Police Civil Service Board, Sulphur, Louisiana, affirming his dismissal as Fire Captain with the Sulphur Fire Department.

Our appellate review of this case is limited, by the provisions of LSA-R.S. 33:2501, to a determination of whether the decision made by the board was made in good faith for cause.

The trial court, after a complete review of the record, concluded in well written reasons that appellant’s dismissal was in good faith and for cause. We agree and are pleased to adopt as our own the written reasons of the learned trial judge:

“The circumstances surrounding the termination of the employment of Rogers arises out of an incident occurring June 23, 1975, wherein Rogers participated in fighting a fire at Honeycutt Furniture Company store at 1400 East Napoleon Street in Sulphur. Rogers’ dismissal occurred on July 2, 1975 by a letter signed by Paul Frederick, Chief of the Fire Department and Adias Saunier, Mayor of Sulphur, and Mr. J. K. Bredehoeft, Chairman of the Civil Service Board.
A hearing was requested and granted wherein several witnesses were called by the attorneys representing Rogers and the City of Sulphur. At the close of the evidence and argument of counsel, the board members reviewed the testimony of the witnesses and stated that ‘the testimony from disinterested witnesses was conclusive that Mr. Rogers had vented the fire at Honeycutt Furniture store before having his fire hose charged.’ The board concluded that by breaking the door of the building before he had charged his fire hose and before he was ready to fight the fire showed incompetency and dereliction of duty as an officer in charge of fighting said fire. The board also said that this constituted an unwillingness or a failure to perform the duties of his position in a satisfactory manner, and also, the deliberate omission of an act that it was his duty to perform.
Under the provisions of LSA-R.S. 33:2501, an appeal from the ruling of the Civil Service Board lies with the District Court and ‘this hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this part. No appeal to the court shall be taken except upon these grounds.’ Under this provision the issue before this court must be confined to the question of whether the action taken against the employee was made in good faith for cause.
I have reviewed the record of the testimony of the witnesses that were called by both sides. Without reiterating the details of each particular witness, the board had before it creditable testimony that Rogers, along with another fireman, responded to a call that a fire existed at the Honeycutt Furniture Company store on June 23, 1975. Upon arriving at the fire with their fire truck, Rogers, as the officer in charge, immediately left the truck and broke the glass panel of the door allowing the input of oxygen into a fire that had been smoldering on a couch located in this furniture store. The door was broken before the hose was unrolled and charged, or the water turned on the hose. After Rogers broke the panel out of the door he went back to the truck where he and the other firemen were then beginning to assemble the proper hose equipment for the purpose of attempting to extinguish the fire. By the time the hose was unrolled and partially assembled for usage, a large plate glass window broke or was forced out of the building, furnishing further air to the smoldering fire. The furniture store immediately then became engulfed in flames causing a total loss of the building and its contents. When the window broke out of the face of the store, Rogers then reeled up the hose that he was attempting to get from the fire truck and moved the fire truck in order to tie into a fire hydrant at another location. By the time the fire hydrant connection was made, the building was a total loss and burned completely down. It was clearly established that to vent a fire before having the water hose charged and ready for use was a violation of one of the basic principals of fire fighting, which was known to Rogers, a man of nine years experience.
There was conflicting evidence on the facts. The board heard these witnesses, however, and considered the credibility of the witnesses. In view of the testimony that was presented, this court concludes that the action taken by the board against Rogers was made in good faith and for cause. The court is not allowed to substitute its judgment for the board in matters in which the board has acted in good faith and for cause as stated in the statute.. To say it another way, the findings of the board are final and the actions of the board are final as long as they were made in good faith and for cause.
These requirements having been met, the decision by the board is affirmed. . ."

For the above and foregoing reasons, the judgment of the district court is affirmed at appellant’s cost.

AFFIRMED.


author: FORET, Judge.

text:
    Albert MIKKELSEN, Plaintiff-Appellant, v. CITY OF DeRIDDER, Defendant-Appellee.
    No. 6345.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    D. Michael Mooney and Joe J. Tritico, Lake Charles, for plaintiff-appellant.
    David W. Burton and James K. Nichols, DeRidder, for defendant-appellee.
    Before CULPEPPER, FORET and JOHNSON, JJ.
   FORET, Judge.

This case was consolidated with Baker v. City of Merryville, 357 So.2d 18 (La.App. 3 Cir., 1978, our docket number 6343), and Pickens et a 1. v. Beauregard Parish Police Jury et al., 357 So.2d 18 (La.App. 3 Cir., 1978, our docket number 6344). The cases were consolidated at the trial level, and are consolidated at the appellate level. The facts and legal issues are substantially the same, and for this reason, our conclusions in this case will be dispositive of the other two consolidated cases.

The facts of the case are rather brief. The plaintiff-appellant held two licenses for the sale of certain alcoholic beverages in Beauregard Parish, one expiring June 30, 1977, and the other expiring December 31, 1977.

On August 2, 1976, the requisite number of qualified voters in Wards 2 and 3 of Beauregard Parish petitioned the police jury to call an election pursuant to Chapter 3, Title 26, Louisiana Revised Statutes, commonly referred to as a “local option election”. The petition requested that the police jury submit to the voters of Wards 2 and 3, respectively, the four propositions recited in La.R.S. 26:587 and, 586.1. Such an election was called and held and the voters rejected the proposals. Pursuant to the election results, the City of DeRidder promulgated the ordinances prohibiting the activities enumerated in the election proposal.

Plaintiff alleges that the City of DeRid-der has enacted an ordinance prohibiting the “manufacturing, distributing, etc. and sale” of certain alcoholic beverages, which ordinance is invalid.

The rationale for the plaintiff’s position is that the City ordinance went beyond the mandate of the electorate by prohibiting more activities than the “sale” of certain alcoholic beverages which was the only activity in the proposition printed on the voting ballots utilized.

The trial court denied the injunction sought and gave written reasons therefor.

The trial court found the ordinances were valid because the form of the election petition as mandated by La.R.S. 26:583 had been followed, as were the propositions to be printed on the ballot as required by La.R.S. 26:586.1 and 26:587. The court held the statutory forms to be mandatory rather than illustrative. The local government, therefore, had no alternative but to submit the propositions as found in the statute. When the voters authorized the local authority to prohibit the business of selling a particular alcoholic beverage, said the court, they also authorized prohibition of the business of manufacturing, producing, etc. Thus, the delegation of authority from the legislature to the local government was consistent with the actions of the City in passing the ordinances which are herein challenged. Furthermore, said the • court, “business” as referred to in La.R.S. 26:595 relates to the composite business of producing, manufacturing, selling, etc. rather than the individual businesses of producing, manufacturing, selling, etc.

The issue herein is whether a local governing body which conducts a local option election prohibiting the sale of certain alcoholic beverages, in accordance with the mandates of the legislature, may subsequently adopt an ordinance which not only prohibits the sale of said alcoholic beverages, but also prohibits the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing, etc.

It is a well known rule of statutory construction that statutes in pari materia must be construed together. Thus, 26:581 et seq. must be analyzed together to determine the true intent of the legislature. The direct statutory authority given by the legislature for the local governing bodies to conduct local option elections is found in La.R.S. 26:582. The first paragraph of this article states that upon the petition of the electorate as required, the governing authority shall order an election to be held to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages, shall be conducted and licensed therein. La.R.S. 26:583 gives the statutory form of the petition for the election. This petition refers only to the “sale” of certain beverages. R.S. 26:586.1 includes the language found in 26:582. La.R.S. 26:587 gives the statutory form of the propositions to be listed on the ballot for the election to be held. This article states only whether “the sale” of certain beverages shall be allowed. No reference is made to the “manufacturing, the producing, or distributing”, etc. of alcoholic beverages. R.S. 26:590 states that if the petition fails to substantially comply with the requirements provided in this chapter, the election is illegal and ineffective, and may be declared null and void by any court of competent jurisdiction. It is clear from reading 26:582, 26:583, and 26:586.1 together, that the election shall determine whether the “business of manufacturing, producing,” etc. is to be allowed even though the ballot states only whether the “sale” of such beverages shall be allowed. Furthermore, reading 26:587 and 26:590 together, it seems clear that to avoid absurd results in statutory construction, one must conclude that the legislature would not intend to require the language as to the sale of certain beverages with the penalty of nullity if such language was not followed, and at the same time authorize the local governing authorities to hold elections to determine whether the business of manufacturing, producing, etc. would be allowed. R.S. 26:588 lends weight to this view in that it states that the “Prohibition of the sale of any or all alcoholic beverages by a local option election held pursuant to this chapter shall not operate as a prohibition of the manufacturing, producing, using, distributing, storing, or selling of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight. . . ” The pregnant negative of this statement is that the prohibition of the sale of all other alcoholic beverages by local option election does operate as a prohibition of the manufacturing, producing, using, distributing, etc. of those beverages.

The jurisprudence substantiates the above statutory analysis. In Wyatt v. Vernon Parish Police Jury, 341 So.2d 468 (La. App. 3 Cir. 1977), this Court, in speaking of the challenged local option election, stated:

“That is, a majority of the electors voted that the manufacturing or selling of alcoholic beverages would not be permitted in either of those wards.” (emphasis added.)

Thus, the court obviously believed that the election of the people to prohibit the sale of certain alcoholic beverages included a prohibition against manufacturing.

The same view is implicit in the Louisiana Supreme Court’s opinion in Nomey v. State, 315 So.2d 709 (La.1975). In discussing the mandatory effect of a local option election of the police jury, the Court stated at page 712:

“Necessarily, if the proposition to prohibit the sale of beverages containing 3.2% alcohol by weight and less was favorably voted upon in a parish-wide election, the trade, sale, and manufacture of that product in that parish would be prohibited by ordinance.” (emphasis added) See also Perot v. Police Jury, 208 La. 1, 22 So.2d 666 (1945).

The appellant’s contention that 26:595 refers to the businesses mentioned in 26:582 is without merit. R.S. 26:595, when it states, “ . . . that any or all of the businesses described . . . ”, is referring to the four categories of alcoholic beverages found in the ballot propositions, rather than solely to the language of R.S. 26:582. Thus, one business which may be prohibited is the “manufacturing, producing, . . . and selling” of “beverages of low alcoholic content containing more than three and two-tenths percent alcohol by weight and not more than six percent alcohol by volume”, which is the first proposition on the ballot, while a second business would be the “manufacturing, producing . . . and selling” of “beverages of high alcoholic content containing more than six percent alcohol by volume for consumption on the premises”, which is the third proposition; and so on.

Rather than require the lengthy language of R.S. 26:582 (“Manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages . . .”) to be printed on the petition and ballot forms, the legislature chose to substitute the simpler language found in R.S. 26:583 and 26:587 which states only, “Shall the sale . .’’be prohibited. The purpose of the election is adequately stated in R.S. 26:582. The clear intent of the legislature is to authorize ordinances such as the one in the instant case upon the election of the voters to prohibit the sale of certain beverages.

When the electors of a ward or incorporated municipality vote to prohibit the sale of certain alcoholic beverages, in accordance with R.S. 26:581, et seq., the local governing body is authorized by the legislature to prohibit all the activities designated in R.S. 26:582, when such activities are engaged in as a business.

For the above reasons, the judgment of the trial court denying the injunctive relief sought by plaintiff-appellant is affirmed.

Costs of this appeal are assessed against the plaintiff-appellants, to be shared equally among them.

AFFIRMED.

      . § 583. Form of petition for election
      Any qualified elector desiring a referendum election, shall sign a petition addressed to the governing authority of the subdivision in which he resides, and in substantially the following form:
      PETITION
      TO:
      The undersigned qualified electors respectfully request that you call an election to submit, in the manner provided by law, to the qualified electors of the parish of _, or of Ward _of_Parish, or of the city, town or village of _, the following four propositions:
      (1) Shall the sale of beverages of low alcoholic content containing more than three and two-tenths percent alcohol by weight and not more than six percent alcohol by volume be permitted?
      (2) Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted?
      (3) Shall the sale of beverages of high alcoholic content containing more than six percent alcohol by volume for consumption on the premises be permitted?
      (4) Shall the sale- of beverages of high alcoholic content containing more than six percent alcohol by volume be permitted by package only and not for consumption on the premises? . . .

      . § 586.1 Ordering of election by twenty-five percent of the registered voters living in a ward or municipality
      A. In addition to the procedure for calling local option elections by petition of twenty-five percent of the qualified electors residing in any ward or incorporated municipality an election may be ordered to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight, shall be conducted and licensed therein. Notwithstanding the provisions of R.S.26:588, the ballot, in addition to the propositions contained in R.S. 26:587, shall contain the following proposition:
      “Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted in . . . .
      YES NO
      B. This election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. No such election shall be held on a parish-wide basis or for any subdivision other than the ones above mentioned.

      .§ 587. Ballot; majority determination of issues; separation of results
      When such election has been ordered the following propositions, and no others shall be plainly printed upon a special ballot to be used for the election, otherwise the election shall be null and void:
      1. Shall the sale of beverages of YES D low alcoholic content containing more than three and two-tenths percent alcohol by weight, and not more than six percent alcohol by volume, NO CH be permitted in .
      2. Shall the sale of b'everages YES D containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted in. NO □
      3. Shall the sale of beverages of YES D high alcoholic content, containing

        more than six percent alcohol by volume for consumption on the premises be permitted in . NO □
      4. Shall the sale of beverages of high alcoholic content, containing more than six percent alcohol by volume by the package only and not for consumption on the premises be permitted in . YES □ NO □

      . § 595. Local prohibitory ordinances and penalties authorized
      When the majority of qualified electors voting in an election held under the provisions of this Chapter determine that any or all of the businesses described shall not be licensed, the governing authority calling the election may provide for the prohibition by ordinance, and may provide penalties for the violation of the ordinances. The penalties shall not, however, exceed a fine of one hundred dollars or imprisonment for not more than thirty days, or both.

      . § 582. Petition for election; parish-wide elections; separate elections; frequency limited
      Upon petition of not less than twenty-five percent of the qualified electors residing in any parish, ward, or any incorporated municipality the governing authority shall order a referendum election to be held to determine whether or not the business of manufacturing, producing, rectifying, distilling, blending, using, storing, distributing and selling alcoholic beverages, shall be conducted and licensed therein.
      In the case of such an election held on other than a parishwide basis the election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. In the case of an election called on a parishwide basis the result shall be binding on the entire parish.
      No such election shall be held for the same subdivision oftener than once in every two years.


text:
    Pharoah BAKER, Plaintiff-Appellant, v. CITY OF MERRYYILLE et al., Defendants-Appellees.
    No. 6343.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    D. Michael Mooney and Joe J. Tritico, Lake Charles, for plaintiff-appellant.
    David W. Burton and James K. Nichols, DeRidder, for defendants-appellees.
    Before CULPEPPER, FORET and JOHNSON, JJ.
   FORET, Judge.

For the reasons stated in the companion case of Mikkelsen v. City of DeRidder, 357 So.2d 14 (La.App. 3 Cir. 1978, our docket number 6345), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, to be shared equally among them.

AFFIRMED.


text:
    James E. PICKENS et al., Plaintiffs-Appellants, v. BEAUREGARD PARISH POLICE JURY et al., Defendants-Appellees.
    No. 6344.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    D. Michael Mooney and Joe J. Tritico, Lake Charles, for plaintiffs-appellants.
    David W. Burton and James K. Nichols, DeRidder, for defendants-appellees.
    Before CULPEPPER, FORET and JOHNSON, JJ.
   FORET, Judge.

For the reasons stated in the companion case of Mikkelsen v. City of DeRidder, 357 So.2d 14 (La.App. 3 Cir. 1978, our docket number 6345), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed to the appellants in these consolidated cases, to be shared equally among them.

AFFIRMED.


text:
    James Michael FORET, Plaintiff-Appellant, v. AETNA LIFE & CASUALTY COMPANY, Defendant-Appellee.
    No. 6346.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    B. J. Manuel, Mamou, for plaintiff-appellant.
    Fusilier, Pucheu & Soileau by J. Wendel Fusilier, Ville Platte, for defendant-appel-lee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

James Michael Foret sustained a disabling injury while working as a roughneck for the Reading and Bates Offshore Drilling Company on October 16, 1971. At the time of the accident, he was covered by a group long term disability policy issued by Aetna Life & Casualty Company. Under the terms of the policy, Aetna agreed to pay monthly benefits to any employee of Reading and Bates who became disabled. Foret sued for and obtained judgment for total and permanent disability from Aetna. A parallel claim for penalties and attorney’s fees against Aetna under La.R.S. 22:657 was denied. Aetna appealed to this court. We affirmed the finding of total and permanent disability, but remanded the case back to the trial court for the purpose of determining the amount of payments due, because the record was inadequate on the issue of plaintiff’s wages. Foret v. Aetna Life & Casualty Company, 337 So.2d 676 (La.App.3rd Cir. 1976).

After appeal, but before trial on remand, Aetna offered plaintiff the amount of benefits which they determined were due. This consisted of $15,057.38 in back payments and $273.03 in future monthly payments. This tender was conditioned upon plaintiffs ceasing to take any further legal action on remand. Plaintiff rejected the offer.

After trial on remand, judgment was rendered awarding plaintiff $22,957.60 in past due benefits (April of 1972 through February of 1977) and $403.03 per month from March, 1977, until termination of the disability or age 65. The trial court denied plaintiff’s demand for penalties and attorney’s fees.

Plaintiff has perfected a devolutive appeal contending that the trial court erred in two respects, viz: (1) by failing to award penalties and attorney’s fees, and (2) by failing to provide legal interest on the amount of the judgment.

I. PENALTIES AND ATTORNEY’S FEES

Plaintiff argues that it should be awarded penalties and attorney’s fees under La. R.S. 22:657. He maintains that even though the trial judge determined the insurer’s withholding of benefits reasonable at the time the initial suit was filed, the insurer’s actions became unreasonable when it did not pay undisputed benefits while the suit was pending trial on remand. Citing Chivoletto v. Johns-Manville Products Corporation, 330 So.2d 295 (La.1976), he contends that in order to avoid penalties and attorney’s fees the insurer should have unconditionally tendered this amount.

Although plaintiff may be entitled to penalties and attorney’s fees under the rationale of Chivoletto, we feel that the issue is not properly before the court at this time. The procedural posture of Chivoletto was different from that in the present case.

In Chivoletto, a workman who had contracted asbestosis sought to recover workmen’s compensation benefits, claiming that he was totally and permanently disabled under the terms of the occupational disease statute, La.R.S. 23:1031.1. The trial judge found that plaintiff was not disabled; however, benefits were granted on the basis that since the usefulness of the lungs, a physical function, was seriously and permanently impaired, compensation could be allowed under La.R.S. 23:1221(4)(p). Judgment of $49.00 per week for one hundred weeks in addition to past and future necessary medical expenses was rendered. The claim for penalties and attorney’s fees was rejected. An appeal was taken from the trial court’s decision by both the plaintiff and defendant. The judgment was affirmed by the Court of Appeal. Plaintiff made an application for a writ of certiorari to the Louisiana Supreme Court, which was granted in order to resolve three issues, one of which was the denial of penalties and attorney’s fees by the trial court. The Supreme Court awarded attorney’s fees on original hearing under La.R.S. 23:1201.2 and 22:658, stating the following:

“Although the trial court denied plaintiff’s claim for penalties and attorney’s fees under Section 1201.2 of Title 23 and Section 658 of Title 22 of the Revised Statutes, this phase of the case assumed a different posture when plaintiff’s award for 100 weeks compensation at $49 per week was affirmed by the Court of Appeal and defendant did not timely apply for writs to review that judgment. Thus plaintiff’s judgment became final insofar as that award was concerned. Proof of plaintiff’s loss to the extent of that judgment was then established to a legal certainty. The continuing demand represented by plaintiff’s application for. writs, and the expiration of sixty days, completed the law’s requirements. Withholding payment of compensation thereafter became arbitrary and capricious, entitling plaintiff to penalties and attorney’s fees as prescribed by the act. [Italics by the court].

330 So.2d 295, 299-300.

In this case, after the original trial denying penalties and attorney’s fees, plaintiff did not appeal nor did he answer defendant’s appeal. This Court affirmed the judgment of the District Court, finding plaintiff entitled to benefits under the policy, but we remanded the case for the limited purpose of redetermining the amount of benefits to which plaintiff was entitled. No application for writs was made from our original decision. We feel that the judgment denying penalties and attorney’s fees became final and that the demand in plaintiff’s original petition was no longer viable. In order to recover penalties and attorney’s fees on the basis of the insurer’s delay in paying the undisputed amount of the claim, it was necessary that a new demand be made at trial on remand. The record reveals that plaintiff did not amend his petition to plead the additional claim and that his apparent attempt to amend by the introduction of two letters, representing the insurer’s conditional tender of the undisputed amount, was ineffective. Quoting from the transcript:

“BY MR. MANUEL, of counsel for plaintiff:
At this time, Your Honor, we would like to reiterate our claim for attorneys fees and I would like to offer, file and introduce into evidence two letters that were received by me from opposing counsel for Aetna during the settlement negotiations following the Court of Appeal decision and mark same as “P-2” in globo for identification, to support our claim for penalties and attorneys fees.
OBJECTION: By Mr. Fusilier, counsel for defendant:
To which introduction, I would like to object insofar as the attorney for the plaintiff is stating that these letters show, make a basis for a recovery of attorney fees and penalties and that the introduction be restricted merely to show settlement and tender by the company of certain amounts — settlement negotiations and tender by the company of certain amounts to the plaintiff.
BY THE COURT:
Subject to your objection, let them be received and marked.”

We thus feel that plaintiff’s claim for penalties and attorney’s fees on this new basis is not properly ■ before this court for consideration. Accordingly we express no opinion on the merits of plaintiff’s claim in that regard.

II. INTEREST

In his petition, plaintiff prayed for legal interest from date of judicial demand. Apparently, the trial court inadvertently failed to include legal interest in the judgment. The judgment will be amended accordingly to include the proper amount of interest.

For the above reasons the judgment of the District Court is amended to provide for legal interest from date of judicial demand until paid on payments due prior to the date of judicial demand and, on payments due subsequent to the date of judicial demand, legal interest from the due date of each payment, until paid. In all other respects, the judgment of the District Court is affirmed. Costs on appeal to be assessed against the defendant-appellee.

AFFIRMED AS AMENDED.

      . In pertinent part, the statute provides:
      “All claims arising under the terms of health and accident contracts issued in this state,.shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. The district court of the parish where the insured lives or has his domicile shall have jurisdiction to try such cases.”

      . On application for rehearing the Supreme Court amended its judgment by striking that portion of the award providing for attorney’s fees because it was revealed by joint stipulation of counsel that the judgment of the district court in fact had been satisfied by the defendant. (Footnote by the court).


author: JOHNSON, Judge.

text:
    Joyce Bass TAYLOR, Plaintiff-Appellant, v. Tom THROWER et al., Defendants-Appellees.
    No. 6356.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Wm. Henry Sanders, Jena, for plaintiff-appellant.
    Rankin & Yeldell, Bastrop, Stephen J. Katz, Monroe, George M. Strickler, Jr., New Orleans, Long & Peters, Jimmy C. Peters, Jena, for defendants-appellees.
    Before CULPEPPER, FORET and JOHNSON, JJ.
   JOHNSON, Judge.

This is an appeal from a dismissal of one part of a tort suit for personal injuries on the basis that the suit had prescribed. The trial court applied the one year prescription, LSA-C.C. Articles 2315 and 3536.

The original plaintiff, a high school athlete, alleged that he was injured and caused to be damaged through the improper actions of his high school coach, a defendant herein. Suit was filed on November 21, 1975 against the coach, the school, the school board, and their insurer. Original plaintiff died on December 31, 1975, about one month after filing suit. His mother was substituted as party plaintiff in supplemental pleadings. She alleges a cause of action for a survival, or victim’s portion, of the claim. This is for the amounts she alleges would have been due young Grady Wilder, her son, and the one allegedly injured, from the time of his injuries until his death. She sues for a wrongful death type action on her own behalf because of her loss and damages occasioned by the death of her son.

The trial court held that the survival, or victim’s portion of the cause of action, had prescribed because it was not brought within one year of the time the victim knew, or should have known, of his injuries.

Grady Wilder, the high school football player, alleges that the coach made him play football when he was sick and vomiting. He further alleged that the coach gave him pills which caused him to become ill. He alleges knowledge of the cause of action considerably later than the date the trial court found.

The evidence shows that Grady Wilder played football for his high school the last time sometime in early November, 1974. Some of the allegations indicate November 4th or 5th and other allegations indicate November 1st. The evidence also shows that he was hospitalized on November 6, 1974, supposedly for a liver ailment. This was some 2-5 days after he last played football.

The trial court found from the evidence that, at the time Grady Wilder was hospitalized on November 6, 1974, he and his mother knew, or should have known, of the alleged injury, the alleged mistreatment, and the giving of improper medicine. All were supposed to have occurred prior to the hospitalization of November 6, 1974. We agree with this finding by the trial court since the alleged misconduct of the coach occurred shortly prior to the time that this young boy entered the hospital. The giving of improper medicine or stimulants by the coach allegedly occurred before this period of hospitalization. Both this young boy and the mother had every reason to discuss these matters with the physician at the time or shortly after the time of hospitalization. Certainly the passage of a few days at the most at the hospital should have resulted in the boy and/or his mother having discussions of these matters with the physicians. They should have complained to the physicians of the effects of the alleged mistreatment and giving of improper medicines, if any. Both knew at that time of the sick spells, the vomiting, the giving of medication, the requirement that the boy play when he was sick, etc.

Despite the foregoing, we find that the original suit herein was hot filed until November 21, 1975, which was one year and 15-20 days after both Grady Wilder and his mother knew or should have known of the alleged torts committed by the high school coach, defendant herein, and of the effects of said alleged wrongful deeds.

Under Canter v. Koehring, 283 So.2d 716 (La.1973), we agree that the trier of fact had ample evidence, which, upon its reasonable evaluation of credibility, furnished a reasonable factual basis for its finding.

For the foregoing reasons, the judgment of the trial court holding that this claim has prescribed, is affirmed, at appellant’s costs.

AFFIRMED. '


text:
    Shirley Jean Trammell DUPUY, Plaintiff-Appellee, v. Lucien P. DUPUY, Defendant-Appellant.
    No. 6362.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Ashton J. Landry, Lafayette, for defendant-appellant.
    Domengeaux & Wright, by Jack C. Fruge, Jr., Lafayette, for plaintiff-appellee.
    Before CULPEPPER, FORET and JOHNSON, JJ.
   JOHNSON, Judge.

This is an appeal by the defendant husband, Lucien P. Dupuy, from a judgment of the trial court in Lafayette Parish, Louisiana, dated July 5, 1977. Dupuy had been sued in Ouachita Parish, Louisiana, by his wife and a judgment of legal separation was rendered by the 4th Judicial District Court of Ouachita Parish, Louisiana, on August 18, 1971. This judgment granted the wife a legal separation and custody of the three children. It also granted the wife the sum of $300.00 per month for child support. In addition to the foregoing, the judgment of Ouachita Parish granted the wife one-half of the husband’s annual bonus which he received at the first of each year.

The wife, in this proceeding, filed rules to show cause against her husband on May 13, 1977 in Lafayette Parish in the 15th Judicial District Court. The wife alleges failure of the husband to pay the child support as ordered and failure to pay the bonus ordered. The rules also asked that the past due alimony payments be made executory.

The husband also filed a rule asking for a reduction in the child support payments. He further alleges that he has been paying for one child for a period of approximately two years since the child has become a major. He asks for credit, on any amounts due by him, for payments made to the child since it became a major. Both of the parties are attempting to invoke the jurisdiction of the 15th Judicial District Court. They seek to waive any venue or jurisdiction requirements by their applications to the 15th Judicial District Court. We hold that they cannot do so and that this suit must be ordered dismissed.

We hold that the 15th Judicial District Court does not have jurisdiction of this proceeding, involving, as it does, a judgment of legal separation of another District Court.

The trial court herein made past support payments executory; entered orders making executory amounts it found due on the bonuses ordered by the Ouachita Parish Court; modified the judgment of support increasing child support; and, ordered further bonuses or commission payments to be terminated.

Our Supreme Court in McGee v. Gasery, 185 La. 839, 171 So. 49 (La.1936) decided a case in which the issue of jurisdiction was involved. The Supreme Court held that the district judge, in a question of jurisdiction, involving jurisdiction ratione materiae, not only has the right but is bound to notice the lack of such jurisdiction, ex officio. The Court states in the Southern citation on page 51 as follows and I quote:

“[2] We think it was. In suits for divorce or for separation a mensa et thoro, the competency or power of the judge to pass upon the issues involved ‘pertains to the jurisdiction of the court ratione mate-riae rather than ratione personae.’ Mann v. Mann, 170 La. 958, 967, 129 So. 543, 546. In Hockaday v. Hockaday, 182 La. 88, 161 So. 164, it was said that the court where the suit was filed was without jurisdiction ratione materiae to try it.”
“[3] The jurisdiction being ratione materiae, the district judge not only had the right but was bound to notice his lack of it ex officio. In Kerr v. Kerr et a 1, 14 La. 177, the court said: ‘No plea to the jurisdiction was made by the defendants, but the want of jurisdiction-in this case being ratione materiae, no consent could give it, and the judge was bound to notice it ex officio.’ The case of Greiner v. Theilan, Sheriff, 6 Rob. 365, is to the same effect.”

In the case of Caldwell v. Gilbert, 253 So.2d 639 (La.App. 3 Cir. 1971), the court deals with a situation where one of the parties sought modification of an alimony judgment of another court. The court states on page 642, and I quote:

“[3] We are of the opinion that once a court’s jurisdiction has attached, it continues exclusively for the purpose of modifying its own alimony judgment. If this were not so, the ensuing results would unnecessarily complicate orderly legal procedure. Assuming arguendo that the Calcasieu District Court would have jurisdiction to modify Mrs. Gilbert’s alimony award granted in Orleans Parish, what would prevent Mr. Gilbert from going back to the Orleans court to seek a reduction? Assuming further that Mr. Gilbert could successfully have the award reduced in Calcasieu Parish, what would prevent the Orleans court from holding him in contempt for failing to pay to his wife the original amount ordered by it? Obviously if both courts were to have concurrent jurisdiction to modify the Orleans decree, there could certainly result a collision of judgments. It is quite possible for different courts to award different amounts of alimony under a given set of facts.”

And again on page 642 and I quote:

“[5,6] We conclude that the court that has jurisdiction to determine the extent to which a judgment shall be executed, or to modify it insofar as it is only executory and not irrevocable, when the judgment has otherwise become final, is the court that rendered that judgment. Accordingly in this case, the Civil District Court or Orleans Parish retains exclusive jurisdiction to modify the alimony award in question.”

In Berry v. Berry, 300 So.2d 246 (La.App. 2 Cir. 1974) we find the following language on page 247:

“Under LSA-C.C.P. Art. 3941, an action for separation from bed and board must be brought in a parish where either party is domiciled or in the parish of the last matrimonial domicile. The venue provided in this article may not be waived and a judgment rendered by a court of improper venue is an absolute nullity. The venue requirement of this article, therefore, equates to jurisdiction.”

(Writs granted — reversed on other grounds, Berry v. Berry, 310 So.2d 626, (La.1975).

The case of Dupre v. Pelotto, 336 So.2d 329 (La.App. 1 Cir. 1976) (although denied on other grounds, the facts not being comparable to the instant situation) quotes the law to the same effect on page 331:

“[1] Our review of the authorities reveal some confusion in this area as well as some seeming conflict. Nevertheless we find that Wright, Colby, Hopkins, and White, above, establish the rule that a court which renders judgment for alimony, custody or child support incident to an action for divorce, retains exclusive jurisdiction for the purpose of modifying such a decree.” (Emphasis by this court)

The case of Hopkins v. Hopkins, 300 So.2d 661 (La.App. 3 .Cir. 1974) states the law on page 662 and I quote:

“[2] We have no hesitancy in reaffirming the following rule: once the venue of the trial court has attached, it continues exclusively for the purpose of modifying the alimony or child support judgment. Caldwell v. Gilbert, 253 So.2d 639 (La.App. 3 Cir. 1971); White v. White, 272 So.2d 469 (La.App. 3 Cir. 1972).”

In view of the evidence and the jurisprudence as shown hereinabove, we reverse the judgment of the District Court herein and order that this matter be dismissed. Costs of the appeal and in the District Court to be borne one-half by the plaintiff-appellee and one-half by the defendant-appellant.

REVERSED, AND CASE ORDERED DISMISSED.