author:
CALOGERO, Justice
     TATE, Justice,

text:
    Hiram DEVORE, Individually and Annie Inez Devore v. HOBART MANUFACTURING COMPANY, Cleveland Manufacturing Company, and Cleveland Consolidated, Inc.
    No. 62810.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      Dee D. Drell, Gravel, Roy & Burnes, Alexandria, for plaintiff-applicant.
    Grove Stafford, Jr. and John C. Pickels, Stafford, Randow, O’Neal & Smith, Edwin 0. Ware, III, Dist. Atty., Gus A. Voltz, Jr., Asst. Dist. Atty., for Sybil T. Jones and the Rapides Parish School Bd., defendants-respondents.
   CALOGERO, Justice

Plaintiff Annie Devore, a school board employee who was injured on October 2, 1974 when boiling water spewed out of a double steamer in a school kitchen, and whose claim for damages against the steamer’s manufacturer prescribed for failure to sue in one year, contends in this litigation that she is entitled to recover from the Rapides Parish School Board and their Director of School Food Service, Mrs. Sybil T. Jones, because defendants negligently misadvised her and her lawyer that the manufacturer of the steamer was Cleveland Manufacturing Company, rather than Cleveland Range Company.

The trial court dismissed plaintiff’s petition on exception of no cause of action and the Court of Appeal affirmed. 359 So.2d 1108.

We recite the following chronology of asserted and/or conceded facts:

October 2, 1974 — Plaintiff’s accident and injury occurred.
July 30, 1975 — Plaintiff’s attorney wrote the school board requesting the name of the manufacturer of the steamer.
August 15,1975 — Sybil T. Jones, Director of School Food Service wrote plaintiff’s attorney advising that the manufacturer of the equipment was Cleveland Manufacturing Company of Cleveland, Ohio. Between August 15, 1975 and September 30, 1975 — Plaintiff’s attorney determined that Cleveland Manufacturing Company was not listed by the Secretary of State as a foreign corporation authorized to do and/or doing business in Louisiana (it was stipulated that Cleveland Range Company was likewise not listed); plaintiff’s attorney consulted the Secretary of State’s listing to determine the names and addresses of all corporations having names similar to Cleveland Manufacturing Company and discovered therein only Cleveland Consolidated, Inc.
September 30, 1975 — Suit was filed against Cleveland Consolidated, Inc., Hobart Manufacturing Company, a company the name of which plaintiff apparently gave her attorney, and Cleveland Manufacturing Company, the name furnished by Mrs. Jones.
October 1, 1975 — Anniversary date of the accident.
June 18, 1976 — Plaintiff by supplemental petition sued Cleveland Range Company and, in the alternative, defendants Rap-ides Parish School Board and Sybil T. Jones.
December 6, 1977 — An exception of prescription by Cleveland Range Company was maintained.

Plaintiff’s petition against Rapides Parish School Board and Mrs. Jones states:

“7.
On July 30, 1975, counsel for petitioners wrote a letter to the Rapides Parish School Board requesting information as to the manufacturer of the equipment alleged to have caused the aforesaid injuries to petitioner, ANNIE INEZ DE-VORE; defendant Rapides Parish School Board was at that time, and still is, the owner and custodian of the aforesaid equipment, and, in response to the aforesaid request by counsel for petitioners, the said Rapides Parish School Board through Mrs. Sybil T. Jones, Director of School Food Services, on August 15,1975, replied to counsel for petitioners, in writing, that the manufacturer of the equipment referenced above was ‘Cleveland Manufacturing Company of Cleveland, Ohio.’ Petitioners, relying on the representations made by the said Mrs. Jones filed this action against Cleveland Manufacturing Company.
8.
Defendant, Sybil T. Jones, at all times knew or should have known that the actual manufacturer of the aforesaid equipment was the Cleveland Range Company, and, for reasons unknown to petitioners, negligently misinformed petitioner’s counsel as to the proper manufacturer of the steamer. Said representations by Mrs. Jones were negligent, and said Rap-ides Parish School Board as employer of petitioner ANNIE INEZ DEVORE, and as owner and custodian of the steamer, had a duty to petitioners to properly apprise them of the name of the proper manufacturer of the said equipment and defendants, Rapides Parish School Board and/or Sybil T. Jones breached that duty; further petitioners had a right to rely upon said representations because of defendant School Board’s position as employer of petitioner, ANNIE INEZ DE-VORE, and as owner and custodian of the steamer.”

Neither fraud nor intentional misrepresentation was alleged in the petition; nor are these elements arguably present in the case.

Plaintiff in the trial court and in the Court of Appeal asserted that Article 2315 and Article 2316 of the Louisiana Civil Code support this cause of action for negligent misrepresentation. While they cited no Louisiana cases on point they did cite and argue as analogous support for their position Restatement (Second) of Torts, Section 552.

The Court of Appeal determined that Louisiana law did not afford plaintiff a cause of action upon the recited facts and concluded that even if they were to hold pertinent in Louisiana the common law cause of action for negligent misrepresentation referred to and defined in the Restatement that plaintiff had not met the pecuniary interest test set forth therein. The Court of Appeal further discussed and found without merit the claim that Mrs. Jones’ letter was incident to a stipulation pour autri existing by virtue of the insurance contract between the Board, plaintiff’s employer, and its compensation insurer, and also a good Samaritan argument urging that even absent any duty to furnish correct information, the party who gratuitously undertakes a response to an information request assumes a duty of care. 359 So.2d at 1111.

We are in agreement with the trial and intermediate appellate courts’ conclusions set forth in White v. Lamar Realty, Inc., 303 So.2d 598 (La.App. 2nd Cir. 1974) that Civil Code articles 2315 and 2316 . . afford a broad ambit of protection for persons damaged by intentional and negligent acts of others . . sufficient to encompass a cause of action for negligent misrepresentation. However, we are not required in the resolution of this case to determine fully the extent to which and the conditions under which our law affords a cause of action for such a tort. We find it sufficient to conclude that here plaintiff has not stated a cause of action against defendants.

We are not here concerned with fraudulent misrepresentation (see White v. Lamar Realty, Inc. supra and Restatement [Second] of Torts, Section 549, discussing damages for fraudulent misrepresentation). Nor do we have here negligent misrepresentation that results in physical harm (see Restatement [Second] of Torts, Section 311). Rather we have here a claim of negligent misrepresentation alleged to have caused pecuniary loss.

For plaintiff to prevail here our Louisiana law would require the existence of a legal duty on the part of the defendants to supply correct information. On the facts set forth in plaintiff’s petitions, no such legal duty appears to exist. And it is to the facts set forth in the petitions that we must direct our attention, for in passing upon an exception of no cause of action the correctness of well-pleaded factual allegations is conceded and the issue for determination is whether the face of the petition presents a case which legally entitles the plaintiff to the redress sought. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

Our inquiry must further focus on whether there was indeed an affirmative duty to insure that the information given was correct, for negligence is the breach of a legal duty, a sine qua non in a tort action such as this. See Callais v. All State Insurance Co., 334 So.2d 692 (La.1976) (on rehearing).

Plaintiff falls short of stating a cause of action. Under the facts alleged in the petitions and conceded by the parties, there was no duty on the part of defendants to give failproof information. There is merely established the existence of an employment relationship between plaintiff and defendant Board, the Board’s ownership and custody of the steamer alleged to have caused plaintiff’s injury, the attorney-client relationship between plaintiff and the attorney requesting the name of the equipment’s manufacturer, reliance by the plaintiff on the information given, and the fact that the name furnished was incorrect. There are no facts set forth which would in our view impose upon the employer-equipment custodian a duty to plaintiff or her attorney to exercise the care in supplying correct information which ultimately proved lacking. There is no allegation that the purpose of requesting the information was communicated in detail sufficient to apprise defendants of the high degree of reliance which plaintiff and her attorney would place on it, nor is there alleged defendants’ knowledge of the extent of reliance planned. It is not alleged that the information sought was within the defendants’ exclusive knowledge or control, nor asserted that plaintiff or her attorney was prohibited or prevented from personally inspecting the equipment or otherwise personally determining the manufacturer thereof.

It cannot be presumed that Jones or the School Board knew or should have known that plaintiff’s attorney would rely entirely upon the information furnished, make no independent investigation, forego discovery, fail to timely file against the proper defendant, and let prescription run. And the risk of plaintiff’s having a law suit prescribe if information given was incorrect was not alleged to be one which defendants could reasonably have been required to appreciate. That risk was and should have been much more obvious to plaintiff and her attorney than to defendants.

With respect to plaintiff’s good Samaritan and stipulation pour autri arguments the Court of Appeal did not err in its adverse resolutions. The arguments are without merit.

The courts below were correct. The exception of no cause of action was properly maintained.

Decree

Accordingly, the judgment of the Court of Appeal is affirmed. All costs are assessed against relators.

AFFIRMED.

TATE, J., dissents and assigns reasons.

MARCUS, J., concurs.

DENNIS, J., dissents.

TATE, Justice,

dissenting.

I respectfully dissent.

The majority holds that a school board, a public body, has no duty to ascertain that information is correct, which it furnishes to the attorney of its employee, even though the school board knows or should know that the attorney will rely upon the information furnished in order to file a suit.

The suit concerns the employee’s injuries during the course of her employment with the school board, when a steamer exploded. The purpose of the letter was to ascertain the manufacturer of the malfunctioning equipment for purposes of suing such manufacturer in tort. The equipment itself, and all information concerning its purchase and the name of its manufacturer, was solely within the possession of the school board.

I doubt that a public body may refuse to furnish any citizen non-privileged information within its possession. Nevertheless, I would agree that probably no action for tort damages will lie if the public body fails to furnish such information.

However, once the public body has agreed to furnish such information — knowing that the other party will rely and act upon It, and may suffer substantial damage if the information is incorrect — , then the public body should be liable for damages resulting from negligently furnished misinformation, under ordinary principles of Louisiana and Anglo-American negligence law.

The error in the majority’s reasoning, in my opinion, is that it assumes, without analysis, that under the above-outlined circumstances there was no duty upon the school board (once it agreed to furnish the information to be relied upon) to give correct rather than incorrect information as to the name of the manufacturer.

Of course, if there was no duty, there is no liability. However, the very issue before us is whether there is a duty.

I respectfully suggest that a duty of reasonable care to furnish correct information (if any at all is furnished) is imposed upon a public agency under Civil Code Articles 2315 and 2316, when — knowing that such information will be relied upon by the employee furnished the information (to his detriment, if false) — the public agency furnishes information within its exclusive knowledge, which information concerns a matter which occurred during the course of the inquirer’s employment relationship with it.

In Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978), we recently discussed the basis of delictual liability in Louisiana. We there stated, 360 So.2d 1334 (footnotes omitted):

The standard of conduct required of persons in Louisiana in their relationships with one another is stated in simple, general terms set forth in Article 2315 of the Louisiana Civil Code of 1870:
“Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it. « * * * »
This single article forms the basis of all tort liability in Louisiana. The remaining articles of the Civil Code’s chapter of legal principles regulating offenses and quasi-offenses, Articles 2316 through 2324, contain amplifications as to what constitutes “fault” and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible.
Under the civilian tradition of our state the courts have been given a broad, general principle of legislative will from which they are required to determine when the interest of society is best served by requiring one who harms another to respond in damages for the injury caused. In deciding whether the conduct in a specific case falls below that in which a person can engage without becoming responsible for resultant damage, a court must refer first to the fountainhead of responsibility, Article 2315, and next in applying the article to the many other articles in our code which deal with the responsibility of certain persons or that which arises due to certain types of activity. After searching through the code itself a jurist should refer in turn to the acts of the legislature, local governments, and other legislative and administrative bodies. Then, having explored the legislative and administrative sources of standards of proper conduct, a court should turn next to the experience of the judiciary in the interpretation and application of these standards to actual situations.

In the present instance, fault liability under Article 2315 is sought to be imposed under the immediately succeeding “negligence”-fault provision, Article 2316: “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” (As we will note later, in Louisiana the negligence concept is largely patterned upon the American experience — want of due care under the circumstances, i. e., of the fact-situation within the contemporary social context — common to Louisiana and the other American states.)

Insofar as other legislative enactments are concerned, none directly provide as to fault. However, we may deduce (if we deduce anything relevant at all), that a public bureaucracy in a free society is the servant of the people and must open its files to all non-privileged information. See, e. g., the Public Records Act, La.R.S. 44:1-42, especially R.S. 1, 32, 33. Arguably, if the public agency furnishes the information (instead of requiring the inquiring citizen to ascertain himself its content in the public records), the agency must assure that the citizen receive correctly the information as reflected by its records, at least when it realizes or should realize that the citizen may act to his detriment if the information furnished is incorrect.

The public agency’s liability in the instant case rests on a broader basis, however, than this statutory expression of a citizen’s right to the correct information in the agency’s files. Under ordinary negligence principles, Article 2316, the agency is liable for its negligently furnishing false information, when the information was furnished under circumstances from which the agency knew or should have known that the person acting upon the information would receive foreseeable harm if the information was false.

As we stated in Guilbeau v. Liberty Mutual Insurance Company, 338 So.2d 600, 602 (La.1978) (citations omitted): “Actionable negligence results from the creation or maintenance of an unreasonable risk of injury to others. * * * In determining whether the risk is unreasonable, not only the seriousness of the harm that may be caused is relevant * * *, but also the likelihood that harm may be caused *

Under our private law, thus, every person is under a legal duty to avoid creating an unreasonable risk of foreseeable harm to any other person, and a public agency is no more exempt from that duty than is any private corporation or individual. If under the present circumstances the present defendant agency created an unreasonable risk of harm to the plaintiff, then it violated a legal duty owed to the plaintiff and, therefore, is responsible to her for damages thereby caused. Articles 2315, 2316.

The issue, of course, is whether the risk of harm created in the particular case before us was unreasonable, taking into consideration the usual indicia — the likelihood of harm to result from negligent misrepresentation, the magnitude of the risk created (the seriousness of the harm which may result, for instance), the social utility values enhanced or eroded by the conduct (an undue burden upon the public agency in being careful with the information it dispenses, for instance, balanced against the social interest advanced in permitting a citizen to rely and act upon information furnished him by his government in the expectation he will act and rely upon it). See Restatement of Torts 2d, Sections 282, 284, 291, 292, 293 (1965).

Tested by all these normal criteria of negligence, the defendant agency created an unreasonable risk of harm to the plaintiff by its negligent misrepresentation under the circumstances shown, and the agency should be held liable for the damages which resulted as a consequence of its misrepresentation. It violated a duty imposed by Article 2316 upon it (and upon any other public or private person under similar circumstances) to use due care in furnishing information within its files, which the agency knew or should have known would be relied upon by the person receiving it, and which (if false) was likely to cause substantial harm to the person furnished it and relying upon it.

As both parties note, the issue of liability for negligent misrepresentation has never before arisen in Louisiana. In this case of first impression, it is not inappropriate to look to the experience of other American jurisdictions that have previously considered the issue: The reasonable care due under the circumstances occurs in the same American context as it now arises in Louisiana, without any uniquely civilian or Louisiana legal precept involved.

The American Law Institute Restatement of Torts is an effort to codify and analyze the American experience in evolving both general rules of tort liability and particular rules for particular fact-situations. Section 552, Restatement of Torts 2d (1977) has attempted to distil a rule of liability for negligent misrepresentation from the decisions of the other American jurisdictions in which the issue has arisen.

The Section, entitled “Information Negligently Supplied for the Guidance of Others,” provides:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the-guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.

In concluding that (if applicable in Louisiana) the principles set forth by this Restatement section do not justify the plaintiff’s' cause of action, our brethren of the intermediate court concluded that the defendant agency could not be liable because it had no “pecuniary interest” in the transaction. (It is not seriously disputed that all other requirements for liability under the Section are met.)

The comments to the Restatement section explain that the short-hand term “pecuniary interest” is to differentiate an actionable circumstance from one in which a purely gratuitous service is performed as a favor. Comment c. They further explain that the pecuniary interest may be not only a direct benefit but also of a more indirect character, and note “The fact that the information is given in the course of the defendant’s business, profession or employment is a sufficient indication that he has a pecuniary interest in it, even though he receives no consideration for it at the time.” Comment d.

I am simply unable to conclude that, even tested by the “pecuniary benefit” requirement as understood in its functional sense in the Restatement, a public body is absolved from any liability for false information which it furnishes in the course of the performance of its public function (which, it seems to me, includes permitting members of the public full access to non-privileged information in its files), when it realizes that the individual who receives the information may be damaged if this information proves to be incorrect.

For instance, the Casualty and Surety Division of our Louisiana Insurance Rating Commission is required to furnish information to the public as to the liability coverage furnished by policies issued in Louisiana, and the mere fact that no fee is charged for this service (until recently) should not absolve this public agency from any damage caused by its negligence in furnishing false information of this nature sought from it by members of the public. No more should a lack of due care absolve the present public agency for its negligence in furnishing information as to the manufacturer of equipment maintained by it (information in its files only) sought for purposes of suing that manufacturer in tort for injuries sustained by a school board employee on school board premises.

The cause of action for negligent misrepresentation is discussed in Prosser on Torts, Section 107, pp. 704-710 (4th ed. 1971). With regard to the duty of ordinary care in furnishing information, Prosser states “ * * * where the representation, although itself gratuitious, is made in the course of the defendant’s business or professional relations, the duty is usually found” (p. Í706) and “[w]hen the representation is made directly to the plaintiff, in the course of his dealings with the defendant, or is exhibited to him by the defendant with knowledge that he intends to rely upon it . . ., there has been no difficulty in finding a duty of reasonable care” (p. 707).

The plaintiff cites to us a number of decisions from other American jurisdictions which have recognized an action for negligent misrepresentation under circumstances analogous to the present. Most of them are cited at 65 C.J.S. Negligence § 20 (1960). This encyclopedia notes that under most American authorities a false statement negligently made may be the basis of a recovery of damages for loss sustained as a consequence of reliance thereupon. It further notes that this liability is generally limited by certain requirements, including a special relationship between the parties by reason of which the party furnished the information has the right to rely on the other for such information, and that the person giving the information should be chargeable with knowledge (a) that it is intended for a serious purpose, (b) that the other intends to rely and act on it, and (c) that if the information is erroneous the person acting upon it is likely to be injured by relying upon it.

I see no need in analyzing these other American decisions in detail. The principles evolved and applied by them are consistent with my view that in Louisiana an action for negligent misrepresentation is available under circumstances such as the present.

In the present case, Louisiana’s Civil Code Article 2316, which provides for actionable fault by reason of negligence, should therefore be construed as requiring the exercise of reasonable care by a public agency, when it furnishes information within its exclusive possession to its employee in connection with injuries sustained by that employee in the course of his employment, and when the agency knows that this information will be relied upon by the employee in filing suit and that, if the information is false, the employee may lose valuable rights should suit be filed against the wrong defendant in reliance upon the incorrect information furnished him by the agency.

One last note: At the risk of overdrama-tizing the issue which has arisen in the present rather mundane litigation, one can glimpse the first faint shadowings of a problem which may increasingly occupy the attention of our judicial institutions during the remaining decades of this century and in the first decades of the century to come: How may we hold accountable the governmental bureaucracies in a mass society to an individual damaged by the carelessness or indifference of the bureaucracy in performing services for the citizenry that the individual served by his government may reasonably expect should be fulfilled so as not to cause unreasonable risk of harm to him?

Our political philosophy expressed by our federal and state constitutions is to protect the rights of individuals against misuse of governmental power. The social values expressed by our private law are to protect the rights and enforce the obligations of individuals. Conceding that my view somewhat exaggerates the social implications of the majority’s decision, nevertheless in my opinion the majority decision slights these fundamental political and social values of our society, when we hold that a governmental agency is not responsible for harm caused by its careless misrepresentation in a reply to a serious inquiry from a citizen, under circumstances where the agency knows the information is sought for a serious purpose and that false information given the citizen is likely to (and does) cause serious harm to that citizen.

       Chief Judge James E. Bolin participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . Section 552 of Restatement (Second) of Torts provides:
      “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
      (2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
      (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
      (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
      (3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.”

      . The majority implies that the agency had no reason to believe that the attorney would rely upon the information furnished by it in filing suit, and it perhaps implies that the attorney should have gone over to the school board office to inspect its records or to inspect the actual defective equipment (assuming it was still existent). I simply cannot agree that an attorney cannot rely upon a formal communication from a public body, an agency which in a democratic society has a duty to the public— with responsibility, for instance, to maintain records open to the public’s inspection. The majority’s implication imposes an unreasonable standard of duty upon an attorney in the conditions of our modem society, where of necessity the labors and duties of the various components of society are specialized and where we must not waste the talents and limited time (or increase their cost to the public) of an attorney or other citizen by expecting him not to rely upon information of apparent authenticity furnished him by a public agency in its reasonable expectation that he will act upon it to his detriment if false. I am simply unable to perceive any reason why, in the exercise of ordinary prudence, the attorney should doubt the veracity of such information or be required to investigate its reliability.

      . I pretermit discussion of the school board’s obvious pecuniary interest in furnishing the plaintiff the name of the tortfeasor, for the purpose of his suit, in which the school board may intervene to recover workmen’s compensation benefits paid by it to the plaintiff arising out of the work-accident at issue. See La.R.S. 23:1101-1103. However, the obvious economic interest of the school board in facilitating its employee’s tort recovery is an additional indi-cia upon which the plaintiffs attorney might rely in assuming that the information furnished him by the school board was reliable and had not been carelessly furnished with expectation that the attorney would verify it further.


source: Caselaw Access Project

author:
MARCUS, Justice.
     PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. James H. COMPTON.
    No. 62795.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      P. J. Laborde, Jr., Marksville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Jeanette Theriot Knoll, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

James H. Compton was charged in the same information with four counts of carnal knowledge of a juvenile in violation of La.R.S. 14:80. He was also charged by an indictment of the grand jury with the crime of aggravated rape (La.R.S. 14:42). Defendant pled not guilty to both indictments at arraignment. Subsequently, he withdrew his pleas of not guilty and entered pleas of guilty to the four counts of carnal knowledge of a juvenile. He also withdrew his plea of not guilty to the charge of aggravated rape and entered a plea of guilty to the reduced charge of carnal knowledge of a juvenile. The guilty pleas were entered pursuant to a plea bargain. The trial judge accepted the pleas of guilty after determining that they were made voluntarily with understanding of the nature of the charges.

Subsequently, at a consolidated sentencing hearing, defendant filed a motion to withdraw the pleas of guilty to the charges. After a hearing, the trial judge denied the motion and sentenced defendant to serve three years at hard labor on each of the four counts of carnal knowledge of a juvenile and six years at hard labor on the charge of aggravated rape reduced to carnal knowledge of a juvenile. The trial judge expressly directed that the sentences be served concurrently. Sentences imposed were in accordance with the plea bargain stated at the time the guilty pleas were entered. On appeal, defendant relies on four assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to withdraw his pleas of guilty. He argues that he is innocent of the charges and that he pled guilty solely because he feared spending the remainder of his life in prison. He further argues that his motion should have been granted because one of his alleged victims recanted her testimony at the preliminary examination that he had engaged in sexual activities with her.

The record reflects that, prior to accepting defendant’s pleas of guilty, the trial judge questioned defendant extensively to determine whether the pleas were voluntarily and intelligently made. He informed defendant of the various rights he would forego by pleading guilty and ascertained that defendant fully understood the nature of the sentences negotiated pursuant to his plea bargain. Subsequently, defendant filed a motion to withdraw his guilty pleas at the consolidated sentencing hearing. At the hearing, defendant testified that he was innocent of the charges against him and that he had pled guilty against his better judgment on the advice of his then court-appointed attorneys. He further stated that, when he was told by these attorneys that he could not withdraw his guilty pleas, he retained new counsel for this purpose. Mr. Harold J. Brouillette, one of defendant’s original court-appointed attorneys, testified that he consulted with defendant several hours over a period of three weeks before defendant decided to enter guilty pleas pursuant to a plea bargain. He further stated that defendant entered the guilty pleas with a full understanding of the consequences despite the fact that he maintained his innocence and expressed reservations both before and after the pleas were entered. The testimony of Mr. Michael Kelly, defendant’s other court-appointed attorney at the time the guilty pleas were entered, was essentially the same as that of Mr. Brouillette. In addition, he stated that several days after defendant pled guilty, he received a telephone call from defendant advising him that he wanted to withdraw his guilty pleas because he felt he had made a mistake and also because he had new evidence, the substance of which he declined to divulge. Mr. Kelly further testified that he made an appointment with defendant to discuss the matter but defendant failed to show up for the conference. As a result, he wrote defendant a letter stating that he presumed defendant no longer was interested in withdrawing his guilty pleas and that he would proceed with the matter accordingly.

La.Code Crim.P. art 559 provides that the court may permit a plea of guilty to be withdrawn at any time before sentence. Discretion to permit a guilty plea to be withdrawn is vested in the trial judge. That discretion, however, cannot be exercised arbitrarily and abuse of discretion can be corrected upon appeal. State v. Andrasi, 343 So.2d 175 (La.1977); State v. Baudoin, 334 So.2d 186 (La.1976); State v. Ballard, 282 So.2d 448 (La.1973). Moreover, an otherwise valid plea of guilty is not rendered involuntary merely because it was entered to limit the possible maximum penalty to less than that authorized by law for the crime charged. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Brady v. U. S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

In the instant case, the trial judge extensively interrogated defendant prior to accepting his pleas of guilty. He informed defendant of the various rights he would forego by pleading guilty to the charges and ascertained that defendant fully understood the nature of the sentences negotiated pursuant to his plea bargain. Defendant had ample assistance of counsel in making his decision to plead guilty to the charges. Based upon the record before us, we find that the guilty pleas are valid in that they were both voluntary and intelligent. Nor do we find that the otherwise valid guilty pleas were rendered involuntary merely because they were entered to limit the possible maximum penalty to less than that authorized by law. Hence, the trial judge did not abuse his discretion in refusing to permit defendant to withdraw his guilty pleas grounded on his argument that he pled guilty solely because he feared spending the remainder of his life in prison.

Defendant’s second argument that his motion should have been granted because one of the alleged victims recanted her testimony at the preliminary examination relates only to the guilty plea to the charge of carnal knowledge of that victim. In view of our discussion under Assignments of Error Nos. 2, 3 and 4, consideration of this argument is unnecessary. Moreover, this argument has no merit relative to the guilty pleas entered to the other charges involving different victims.

ASSIGNMENTS OF ERROR NOS. 2, 3 AND 4

Defendant contends the trial judge erred at the hearing on his motion to withdraw the guilty pleas by instructing defendant to avoid questioning X, one of the alleged victims, about testimony she gave at the preliminary examination held in connection with the charges of carnal knowledge of a juvenile and aggravated rape. He argues that this limiting instruction violated his constitutional rights to compel witnesses on his behalf, to present a valid defense and to obtain effective assistance of counsel (Assignment of Error No. 2).

At the preliminary examination, four girls under the age of seventeen, including X, testified that defendant had engaged in sexual activities with them. Subsequently, in his motion to withdraw his pleas of guilty, defendant stated, inter alia, that X had visited the office of defendant’s attorney, Mr. Laborde, and volunteered the information that she had lied at the preliminary examination. At the hearing on the motion to withdraw the pleas of guilty, defendant called X to the stand. He established that she had come to his office two days before to discuss the testimony she had given concerning defendant at the preliminary examination. Before she could answer, the trial judge interrupted and called a recess during which he conferred with X and her parents. At this consultation, the trial judge carefully warned them of the possible consequences of X’s testifying that she had lied at the preliminary examination. He told them that this would subject X to possible legal action for perjury. He then asked X’s parents to confer with their daughter and to decide whether, considering his warnings, they approved of her giving incriminating testimony. After they had conferred privately, the judge reiterated his warnings and informed them that X was not required to testify and that he would provide them with an attorney if they so desired. X’s father initially stated: “I’ll tell you the way I feel about it. It’s up to her. If she feels like she should testify, it’s allright with me.” However, after further interrogation by the judge, both parents agreed that they did not approve of their daughter testifying that she lied. The hearing on the motion to withdraw the guilty pleas was resumed and the trial judge instructed defense counsel to avoid reference to any testimony given by X at the preliminary examination. He stated specifically that, in order to protect the rights of X, a juvenile, he would not allow defendant to question her about the truth or falsity of that testimony. Defendant objected to these instructions. He then asked X again whether she had visited his office two days before, to which she replied in the affirmative. When asked why she had come to his office, X replied that she had done so in order “to tell that he [defendant] didn’t do me nothing.” She further testified that defendant had neither touched her nor played with her body. At this point, the trial judge intervened, stating: “Wait, I’ll stop the examination there because we have some evidence to the contrary. I have to protect her.” At the conclusion of the hearing, the trial judge denied defendant’s motion to withdraw his guilty pleas.

Based upon the record before us, we do not find that X asserted her privilege against compulsory self-incrimination (U.S. Const. Amend. V; La.Const. art. 1, § 16) after having been fully advised of her right to do so and the possible consequences if she did not by the trial judge in the presence of her parents. To the contrary, our impression is that she wanted to testify that she lied at the preliminary examination. Therefore, the trial judge’s instructions which prevented defendant from questioning the witness relative to the truth or falsity of her testimony at the preliminary examination precluded defendant from presenting evidence relevant to a material issue, i. e., the credibility of the witness. It was necessary that this issue be resolved by the trial judge in the process of exercising his discretion as to whether he should permit defendant to withdraw his guilty plea. Hence, we consider that the trial judge’s instructions limiting the examination of this witness had the effect of violating defendant’s constitutional rights to present witnesses in his defense, to have effective assistance of counsel, and to due process of law. U.S.Const. Amends. VI and XIV; La. Const, arts. 1, §§ 2,13 and 16. Accordingly, we must set aside his denial of defendant’s motion to withdraw his guilty plea to the charge of carnal knowledge of juvenile X and remand the case for a new hearing.

The remaining assignments of error are directed toward allegedly improper rulings of the trial judge at the hearing on the motion to withdraw the guilty plea to the charge of carnal knowledge of juvenile X. In view of our remand for a new hearing, consideration of these assigned errors is unnecessary.

DECREE

For the reasons assigned, the trial judge’s denial of defendant’s motion to withdraw his guilty plea to the charge of carnal knowledge of juvenile X is set aside and the case is remanded for a new hearing, reserving to defendant the right to appeal any adverse ruling; defendant’s convictions and sentences for the other offenses are affirmed.

SUMMERS, C. J., dissents.

PER CURIAM.

The application for rehearing is denied.

The defendant has filed affidavits in this court on application for rehearing which indicate the other two complaining witnesses now wish to recant.

Our decree in the original opinion should not be limited to a hearing (on the motion to withdraw the plea of guilty) as to only one complaining witness.

BLANCHE, J., not participating.

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

      . Originally, defendant was represented by two court-appointed attorneys (Harold J. Brouillette and Michael F. Kelly). At the consolidated sentencing hearing, defendant was represented by retained counsel (P. J. Laborde, Jr.). Accordingly, the prior court-appointed attorneys were discharged from further duties in the matter and new counsel was entered of record.


author: MARCUS, Justice.

text:
    Frank BURAS v. BOARD OF TRUSTEES OF the POLICE PENSION FUND OF the CITY OF NEW ORLEANS.
    No. 62947.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearings Denied March 5, 1979.

      Richard A. Dowling, New Orleans, for defendant-respondent.
    Ronald A. Welcker of Edward S. Bopp, Law Corp., Arabi, for plain tiff-applicant.
   MARCUS, Justice.

Frank Buras instituted suit in the civil district court for the parish of Orleans against the board of trustees of the police pension fund of the city of New Orleans seeking judicial review of the decision of the board denying him disability benefits.

Plaintiff alleged in his petition that, while in the active discharge of duty as a member of the police department, he became permanently disabled so as to render his retirement from service necessary. Consequently, he applied to the board for disability benefits pursuant to La.R.S. 33:2281, et seq. He further alleged that at a meeting of the board on January 13, 1976 to consider his application, the board concluded that he should be re-evaluated by his treating physician and a subsequent meeting would be held to consider the later evaluation. This subsequent meeting was held on March 16, 1976, at which time the board informed plaintiff that his application for disability benefits was denied. Plaintiff also averred that the decision of the board was an abuse of discretion and manifestly erroneous in view of the evidence in the record and sought to have the decision of the board reversed. He contended that the board was an “agency” as contemplated by the Louisiana Administrative Procedure Act (La.R.S. 49:951, et seq.) and as such was subject to its provisions. The board answered, admitting that plain-. tiff was an active member of the police department but generally denied the other allegations contained in plaintiff’s petition.

At trial, plaintiff offered in evidence his own testimony as well as that of a psychologist. Also, the deposition of the treating physician and the medical reports of two examining doctors were received in evidence in accordance with stipulations of the parties. This evidence sought to establish that plaintiff’s disability was such that he would be unable to perform any duties within the police department. The board offered in evidence the testimony of Albert W. Raimer, administrator and secretary of the board, who had been present at both meetings involving plaintiff’s application. Raimer read into the record the minutes of these meetings which indicated that at the March 16, 1976 meeting, plaintiff’s application was denied with the provision that he attempt to work at a desk job for one year and, if he found himself unable to perform those duties, he could then reapply for disability benefits. It was established that plaintiff rejected this offer. The board also offered in evidence testimony which sought to show that plaintiff owned a part interest in a gun shop and worked parttime at the shop during the period of his alleged disability.

The trial judge reversed the decision of the board and rendered judgment in favor of plaintiff and against defendant board, finding plaintiff disabled and entitled to the disability benefits applied for. The board appealed the judgment of the trial court.

The court of appeal, without determining whether the Administrative Procedure Act was applicable to proceedings of the board, noted that it considered a trial de novo was contrary to the intent of the legislature in formulating the board and that, because of the failure of the board to present the trial court with a proper record and findings, the appropriate action of the trial court might have been to remand the case to the board for a full hearing on plaintiff’s application with instructions to make up a complete record and to provide written findings of fact and conclusions for the benefit of the reviewing court. However, the appeals court considered that “judicial economy” required it to decide the case with finality on the evidence in the record.

After reviewing the evidence adduced at the trial de novo, the court of appeal found that plaintiff was not entitled to a disability pension. Accordingly, it reversed the judgment of the trial court and rendered judgment in favor of the board, dismissing plaintiff’s suit.

On plaintiff’s application, we granted cer-tiorari to review the correctness of this decision.

We must first determine whether the Louisiana Administrative Procedure Act is applicable to proceedings of the board of trustees of the police pension fund of the city of New Orleans, and, if so, whether its provisions were properly complied with in the instant case. These issues must be resolved prior to reaching the merits of the case.

A police pension fund for the police department was created by an act of the state legislature. La. Acts 1948, No. 96. Since its creation, the act has been subject to several legislative amendments. The fund exists for pensioning all officers, members, and employees of the police department of the city of New Orleans, their widows, children, and widowed mothers. La.R.S. 33:2281. The legislature also created a board of trustees of the pension fund of the city of New Orleans for the administration, management, operation, and control of the fund, consisting of nine members, in addition to former superintendents of police who are retired on pension. The composition of the board is designated in the act. La.R.S. 33:2282. The board makes all necessary rules and regulations for the operation, distribution, and government of the fund and hears and decides all applications for pensions. La.R.S. 33:2284. If an officer of the police department at any time, while in the active discharge of duty, becomes permanently disabled so as to render his retirement from service necessary, he shall be retired by a two-thirds vote of the members of the board and shall receive a sum not to exceed fifty percent of his salary at the time of the permanent disability. La.R.S. 33:2292.

A determination of whether the Administrative Procedure Act applies to proceedings of the board of trustees of the police pension fund of the city of New Orleans depends on whether the board is an “agency” within the contemplation of the act. For purposes of applying the Administrative Procedure Act, La.R.S. 49:951(2) defines “agency” to mean:

[Ejach state board, commission, or department which makes rules, regulations, or policy, or formulates, or issues decisions or orders pursuant to, or as directed by, or in implementation of the constitution or laws of the United States or the constitution and statutes of Louisiana, except the legislature or any branch, committee, or officer thereof and the courts.

(emphasis added).

The board of trustees of the police pension fund of the city of New Orleans derives its existence from an act of the state legislature. It awards or denies pensions pursuant to the authority granted it by the legislature. It is therefore apparent that the board of trustees of the police pension fund of the city of New Orleans is a state board which formulates or issues decisions pursuant to the statutes of Louisiana and, as such, is an “agency” within the contemplation of the Administrative Procedure Act. Hence, the Administrative Procedure Act is applicable to proceedings of the board.

Next, we must consider whether the Administrative Procedure Act was properly complied with in the instant case. This determination depends upon the nature and scope of review under the act.

A person who is aggrieved by a final decision in an adjudication proceeding is entitled to judicial review under the provisions of the Administrative Procedure Act. La.R.S. 49:964 A. Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within the time limits set forth in the statute. La.R.S. 49:964 B. The agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review unless stipulated to the contrary by the parties. The court may require or permit subsequent corrections or additions to the record. La.R.S. 49:964 D. If, before the date set for hearing, application is made to the court for relief to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court. La.R.S. 49:964 E. The review shall be conducted by the court without a jury and “shall be confined to the record.” However, in cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs. La.R.S. 49:964 F. La.R.S. 49:964 G specifically defines the scope of judicial review of agency decisions:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

. These provisions defining the nature and scope of judicial review under the Administrative Procedure Act do not authorize a trial de novo in the reviewing court. To the contrary, it is clear that the review “shall be confined to the record” as established before the agency. If the reviewing court were allowed to hear such matters de novo and substitute its judgment for that of the administrative agency, it would be usurping the power delegated by the legislature to the administrative agency. It should also be noted that the Administrative Procedure Act, properly complied with, operates to the advantage of both the parties and the courts. It enables the parties to resolve their disputes in a less cumbersome and expensive manner than normally encountered at a trial in court. At the same time, the courts are relieved of the time-consuming task of hearing the evidence. It further permits the administrative agency to weigh and evaluate the evidence with proper respect being given to its expertise in the matter. Additionally, it promotes the uniform application of the statute under which the agency operates.

In the instant case, the trial court improperly conducted a trial de novo of plaintiff’s application for disability benefits and based its reversal of the board’s decision on the record received by it. In addition, it is apparent that the board itself failed to comply with the procedural requirements established by the Administrative Procedure Act. La.R.S. 49:955-958, 964 D. Pursuant to La.R.S. 49:964 G, the trial court was authorized to remand this matter for further proceedings to allow the board to comply with the requirements of the Administrative Procedure Act. In view of the board’s non-compliance with the procedures established by the act and the trial court’s failure to remand the case to the board, we find that the court of appeal erred in deciding this matter on the evidence before it. The clear effect of the Administrative Procedure Act is that evidence be heard and evaluated by the agency and a proper administrative record be transmitted to the court on which it can base its review of the agency’s decision in accordance with the standard of review set forth in La.R.S. 49:964 G. Accordingly, a proper disposition of this matter requires reversal of the judgment of the court of appeal and remand of the case to the board with instructions to comply with the Administrative Procedure Act.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed; the case is remanded to the board of trustees of the police pension fund of the city of New Orleans with instructions to comply with the Louisiana Administrative Procedure Act.

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

      . The minutes of both board meetings were also read into the record by the trial judge prior to the testimony of Raimer. The trial judge noted that the minutes failed to indicate any findings of fact, conclusions of law, or written reasons for the board’s decision. Due to the inadequacy of the board’s proceedings, the trial judge at one point continued the hearing to consider whether the Administrative Procedure Act applied to proceedings of the board of trustees of the police pension fund of the city of New Orleans. The record does not reflect any determination as to this issue by the trial judge.

      . 360 So.2d 572 (La.App. 4th Cir. 1978).

      . 363 So.2d 534 (La.1978).

      . We note that La.R.S. 33:2284 provides in pertinent part: “Its [board’s] decisions on such [pension] applications shall be final and conclusive. There shall be no appeal from the finding of the board.” It is well settled, however, that the right of judicial review of administrative proceedings is presumed to exist and the availability of such review is necessary to the validity of administrative proceedings under our legal system and traditions. Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971); see also, La.Const. art. 1, § 22 (“[a]ll courts shall be open, and every person shall have an adequate remedy and due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights”). When a court can reasonably do so, it will construe a statute so as to preserve its constitutionality. Pearce ex rel. Structural Pest Con. Com’n v. Sharbino, 254 La. 143, 223 So.2d 126 (1969). Therefore, we do not consider that La.R.S. 33:2284 purports to prohibit judicial review of the board’s decisions. This court has interpreted a similarly worded statute to mean that as between the board and the applicant for the pension, the decision of the board is final and conclusive and not subject to further review or reversal except by the board on its own motion. Under this interpretation of the statutory language, La.R.S. 33:2284 merely determines the point of administrative finality, leaving to the courts the ultimate decision as to the validity of the final administrative decision. Meyer v. Board of Trustees of Firemen’s Pension & Relief Fund, 199 La. 633, 6 So.2d 713 (1942); see also Note Tul.L.Rev. 854, 858 (1969).

      . It was argued to the courts below that the board of trustees of the police pension fund of the city of New Orleans is not a state board and therefore not an “agency” as defined under the Administrative Procedure Act because it has limited geographic jurisdiction. If the legislature meant to exempt state boards having limited geographic jurisdiction from the coverage under the Administrative Procedure Act, we consider that express language to that effect would have been used. Several states have administrative procedure acts which, by express language, limit the application of the act to state boards having statewide jurisdiction. E. g., Minn.Stat.Ann. § 15.0411(2); N. D. Cent. Code § 28-32-01; Pa.Stat.Ann. tit. 71 § 1710.-2(b).


text:
    STATE of Louisiana v. Willie D. ALLEN.
    No. 62985.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      Michael S. Ingram, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Brian E. Crawford, Sp. Counsel, Asst. Dist. Atty., for plaintiff-ap-pellee.
   MARCUS, Justice.

Willie D. Allen was charged by an amended indictment of the grand jury with arson with intent to defraud in violation of La.R.S. 14:53. After trial by jury, defendant was found guilty and sentenced to serve three years in jail. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in allowing Levy Redden, owner of the home upon which defendant allegedly committed arson with intent to defraud, to testify concerning an earlier, aborted plan involving defendant to burn another of the witness’ homes located in a different parish. He argues that this reference to evidence of another crime was inadmissible.

A similar contention was recently disposed of in the appeal of defendant’s accomplice, James H. Boone. State v. Boone, 364 So.2d 978 (La.1978). In that case, we held that the earlier, aborted plan to destroy by fire another of Mr. Redden’s homes was relevant as part of the conspiracy to prove the crime charged. All of the activities were integral parts of a single transaction. Hence, the evidence complained of was admissible. The trial judge did not err in permitting its introduction.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in denying his motion for a new trial grounded on the claim that the verdict was contrary to the law and evidence. It is well settled that such an allegation presents nothing for this court’s appellate review. State v. Drew, 360 So.2d 500 (La.1978); State v. Cass, 356 So.2d 936 (La.1977); State v. Fowlkes, 352 So.2d 208 (La.1977); State v. Williams, 343 So.2d 1026 (La.1977), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977); State v. Jack, 332 So.2d 464 (La.1976). Hence, this assignment of error is without merit.

DECREE

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

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


author: DENNIS, Justice.

text:
    SOUTH LOUISIANA ELECTRIC COOPERATIVE ASSOCIATION v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 62853.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.
    Stanwood R. Duval, Jr., Duval, Arcen-eaux, Lewis & Funderburk, Houma, for plaintiff-appellee.
    William 0. Bonin, Landry, Watkins & Bonin, New Iberia, for intervenor-appellee.
    Marshall B. Brinkley, Baton Rouge, for L.P.S.C. defendant-appellant.
   DENNIS, Justice.

The issue presented by this case is whether the Louisiana Public Service Commission acted reasonably in its factual determination that South Louisiana Electric Cooperative Association’s facility was duplicative of the service that could have been furnished a consumer by Central Louisiana Electric Company, Inc.’s existing electric line in an economical and justifiable manner.

In these proceedings, South Louisiana Electric Cooperative Association (“South Louisiana”) seeks judicial review of an order of the Louisiana Public Service Commission. The order resulted from a complaint filed with the Commission by Central Louisiana Electric Company, Inc. (“Central Louisiana”), intervenor in these judicial proceedings. Central Louisiana there claimed that, in violation of a Commission general order, South Louisiana had constructed duplicative facilities to serve a' customer that could be served from Central Louisiana’s facilities already in existence in an economical and justifiable manner.

South Louisiana appealed to the district court for judicial review of the Commission’s adjudication of this dispute in favor of Central Louisiana, which ordered that the complaint by Central Louisiana be sustained. The district court upheld the order, following which South Louisiana now appeals directly to this Court. La.Const.1974, art. 4, § 21(E).

The Louisiana Public Service Commission general order dated March 12,1974 regulating “duplication of electric service” has been upheld by this Court against various constitutional attacks. Louisiana Power & Light Co. v. Louisiana Public Service Commission, 343 So.2d 1040 (La.1977). The order, in pertinent part, provides:

“That no extension of electric transmission or distribution lines shall be made by an electric public utility that will duplicate the transmission and distribution lines (as defined in Louisiana Revised Statutes 45:123) of another like utility, nor shall extensions be made to serve customers that could be served from such electric public utility facilities already in existence in an economic and justifiable manner. If a public utility, for good cause, refuses to serve a prospective customer within its service area, another like utility may serve the said customer upon written authority of this Commission.”

South Louisiana attacks the Commission’s factual determination that the general order was violated by that utility in the instant case.

The orders of the Commission are entitled to great weight and are not to be overturned unless shown to be arbitrary, capricious or abusive of its authority. South Central Bell Telephone Co. v. Louisiana Public Service Commission, 352 So.2d 964 (La.1977); Louisiana Power & Light Co. v. Louisiana Public Service Commission, 343 So.2d 1040 (La.1977); Louisiana Oilfield Carriers Ass’n., Inc. v. Louisiana Public Service Commission, 281 So.2d 698 (La.1973). A person attacking a Commission order bears the burden of demonstrating that it is defective, since the order is presumed to be valid. Louisiana Power & Light Co. v. Louisiana Public Service Commission, supra; Louisiana Oilfield Carriers Ass’n., Inc. v. Louisiana Public Service Commission, supra. Commission decisions will not be disturbed unless found to be clearly erroneous or unsupported by evidence. South Central Bell Telephone Co. v. Louisiana Public Service Commission, supra; White v. Louisiana Public Service Commission, 259 La. 363, 250 So.2d 368 (1971); Monochem, Inc. v. Louisiana Public Service Commission, 253 La. 1047, 221 So.2d 504 (1969).

As the district judge noted in his excellent reasons for judgment, a cursory inspection of the exhibits introduced by both utilities reveals the paralleling and duplication of existing electric lines and the extension of lines by South Louisiana to serve customers readily accessible to facilities of Central Louisiana already providing service in the immediate area. The hearing transcript contains ample testimony by an expert witness to show that Central Louisiana could serve the consumer in question from its existing facilities in an economic and justifiable manner. The exhibits together with the expert’s testimony support the Commission’s finding that service to the consumer in question could have been provided by Central Louisiana in a more economical and justifiable manner than the service provided by South Louisiana.

Although South Louisiana introduced countervailing expert testimony, it was not of such quantity or persuasiveness as to show that the Commission’s factual determinations were arbitrary, capricious or abusive of its authority. Therefore, under accepted principles of judicial review, this Court may not substitute its judgment for the Commission’s and overturn such non-arbitrary ruling, which we find to be fully supported by the evidence.

Accordingly, the judgment of the district court, which dismissed the plaintiff’s petition to overturn the Commission’s order, is affirmed at the cost of the plaintiff-appellant, South Louisiana Electric Cooperative Association.

AFFIRMED.

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

      . The full text of the order is set forth at Appendix 1, 343 So.2d 1046.

      . In affirming the Commission’s order, the district court approved the agency’s finding that South Louisiana had violated La.R.S. 45:123 by the creation of a preemptive line and that the utility disobeyed the Commission’s general order regulating promotional practices. Because we have concluded that the Commission acted reasonably in finding that South Louisiana violated its general order regulating duplication of electric service, it is not necessary that we consider whether there were other independent grounds which would support the Commission’s order.


author: PER CURIAM.

text:
    STATE of Louisiana v. Warren SMITH.
    No. 63003.
    Supreme Court of Louisiana.
    Feb. 7, 1979.
    A. J. Boudreaux, Staff Appeals Counsel, 24th Judicial Dist., Indigent Defender Bd., Kenner, for defendant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Ronald Loumiet, George Mustakas, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Defendant was charged by bill of information with a simple burglary committed on October 6, 1977. La.R.S. 14:62. On November 17, 1977, he was tried before a twelve person jury, which found him guilty as charged. Thereafter, the trial court sentenced him to serve seven years at hard labor. On appeal, defendant contends that his conviction must be reversed because he was improperly tried by a twelve person jury rather than a six person jury.

Article I, Section 17 of the 1974 Louisiana Constitution provides in pertinent part:

Section 17. A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict, (emphasis supplied).

See also, La.C.Cr.P. Art. 782.

Defendant was charged with the offense of simple burglary, for which La.R.S. 14:62, as amended by Acts 1977, No. 133, § l, provides the following punishment: “Whoever commits the crime of simple burglary shall be imprisoned with or without hard labor, for not more than twelve years.” Consequently, by constitutional and statutory mandate, defendant was required to be tried before a six person jury.

We have consistently held that the verdict returned by a jury composed of either more or less than the correct number of jurors is null. See, State v. Nedds, 364 So.2d 588 (La.1978), and cases cited therein.

The state argues that defendant waived his right to complain of the defect by failing to object at the trial level. See, La.C.Cr.P. Art. 841. However, an error in the size of the jury is discoverable on the face of the record and therefore we may note it ex proprio motu without formal objection or an assignment of error. See, La.C.Cr.P. Art. 920(2); State v. Nedds, supra.

Accordingly, defendant’s conviction and sentence are reversed and the case is remanded to the district court for a new trial.

DENNIS, J., dissents for the reasons assigned by him in State v. Nedds, 364 So.2d 588 (La.1978).

      . Prior to the 1977 amendment to R.S. 14:62, simple burglary was punishable by imprisonment at hard labor. However, the above-quoted amendment was effective on September 9, 1977, before the commission of the subject offense on October 6 and therefore it governed the instant prosecution.


text:
    STATE of Louisiana v. David J. DUPLANTIS.
    No. 60856.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
    Wayne A. Mancuso, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Roy F. Blondeau, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

The issue of whether defendant was denied effective assistance of counsel is more properly raised by application for writ of habeas corpus at which time a full eviden-tiary hearing can be conducted. State v. Anthony, 347 So.2d 483 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Mouton, 327 So.2d 413 (La.1976).

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

BLANCHE, J., does not participate.


text:
    STATE of Louisiana v. James Edward CARSON, Jr.
    No. 63092.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
    Robert Zibilich, Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On September 26, 1974, defendant James Edward Carson, Jr. was convicted for first degree murder, La.R.S. 14:30 (1950), and sentenced, on the jury’s recommendation, to life imprisonment at hard labor. On appeal, this Court found that while all other assignments lacked merit, defendant had raised a serious issue regarding the denial of his motion to suppress a confession. Finding that the state had made an inconclusive showing of voluntariness, we remanded the case for a second hearing on the motion to suppress and reserved to defendant the right to appeal from an adverse ruling. 336 So.2d 844 (La.1976). On remand, the trial court denied the motion to suppress after a supplemental hearing, and defendant now appeals from that ruling.

At the supplemental hearing, the state adduced substantial evidence to rebut defendant’s allegations of coercion, which had caused us some concern on his original appeal. We find no abuse of discretion in the trial court’s determination that the confession was freely and voluntarily given. Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

MARCUS and BLANCHE, JJ., do not participate.


text:
    STATE of Louisiana v. Phillip ESTHEY.
    No. 63938.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Phillip Esthey, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Ouachita.

Writ denied. There is not an adequate showing to justify the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Charles RANKER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63714.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re Charles Ranker applying for writ of habeas corpus. Parish of Orleans.

Writ denied. The realtor’s contentions have previously been rejected, after eviden-tiary hearing. See 275 So.2d 786 (La.1973).


text:
    STATE of Louisiana v. Robert Lee WYMORE.
    No. 63939.
    Supreme Court of Louisiana.
    Feb. 12, 1979.
   In re Robert Lee Wymore, applying for supervisory writs, writ of certiorari (review). Parish of St. Charles.

Writ denied. Relator has adequate remedy by appeal in event of his conviction.


text:
    Bobbie S. LEPPERT v. James H. BROWN, Texaco, Inc., and American Motorists Ins. Company.
    No. 63940.
    Supreme Court of Louisiana.
    Feb. 12, 1979.
   In re Bobbie S. Leppert applying for writ of certiorari, Fourth Circuit, Court of Appeal. Parish of Jefferson.

Writ granted. Both trial and appellate court rulings are set aside; neither appears to be wholly correct. If and when the exhibits are sought to be introduced as admissions, there is an adequate remedy by appeal to review the trial court ruling or any objection made.


text:
    STATE of Louisiana v. Gerald BLANKS.
    No. 63951.
    Supreme Court of Louisiana.
    Feb. 13, 1979.
   In re Gerald Blanks applying for stay order and supervisory writs. Parish of Jefferson.

Writ granted. Applicant is granted the relief prayed for; except that the trial is not stayed. See La.C.Cr.Proc., art. 834 and art. 718.


author: SUMMERS, C. J.,

text:
    STATE of Louisiana v. Rory D. FRANKLIN.
    No. 63984.
    Supreme Court of Louisiana.
    Feb. 14, 1979.
   In re Rory Franklin applying for writs of certiorari, prohibition and mandamus, and for a stay order. Parish of Jefferson.

Writ denied. Defendant has an adequate remedy by appeal in the event of conviction.

SUMMERS, C. J.,

is of the opinion that double jeopardy attached and after a directed verdict, defendant cannot be compelled to continue as a defendant in a criminal trial. State v. Baskin, 301 So.2d 313 (La. 1974).


text:
    STATE of Louisiana v. Michael A. FOOTE.
    No. 63981.
    Supreme Court of Louisiana.
    Feb. 14, 1979.
   In re Michael A. Foote, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Lee Autry COOK v. Harry L. SHAHEEN, President for Sara, Inc.
    No. 63818.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Lee Autry Cook applying for writ of mandamus. Parish of East Baton Rouge.

Denied. No service on Shaheen.


author: TATE, DIXON and MARCUS, JJ.,

text:
    STATE of Louisiana v. Lester BRADLEY.
    No. 63842.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Lester Bradley, applying for writs of habeas corpus, certiorari, mandamus and prohibition. Orleans Parish.

Writ denied.

TATE, DIXON and MARCUS, JJ.,

concur. The contention was rejected on the relator’s appeal from his conviction. 362 So.2d 772 (La.1978).


text:
    STATE of Louisiana v. Billy R. MOUDY.
    No. 63819.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Billy R. Moudy applying for remedial writ. Parish of West Feliciana.

Writ granted in part, denied in part. Request to vacate conviction and sentence are denied at this time. Inasmuch as relator’s pro se brief was considered in connection with his appeal, but relator was not personally notified of rendition of our opinion, relator is. granted the right to apply for rehearing within 14 days.


text:
    Irion BORDELON v. Albert B. CRUTCHER.
    No. 63792.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Irion Bordelon, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 365 So.2d 1114.

Writ denied. The Court of Appeal correctly affirmed the Judgment of the District Court.

SUMMERS, C. J., would grant the writ.


text:
    James M. BURR v. Larry LEGUIN.
    No. 63816.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Larry Leguin, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Concordia. 365 So.2d 1156.

Writ denied.

SUMMERS, C. J. and DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Henry Lee MARTIN v. Frank BLACKBURN, Warden.
    No. 63845.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Henry Lee Martin applying for writs of habeas corpus, certiorari and mandamus. Parish of Morehouse.

Writ granted. Evidentiary hearing on Claim # A (breached plea bargain) is ordered.

SUMMERS, C. J., and MARCUS and BLANCHE, JJ., would deny the writ.


text:
    Alice BANKSTON, etc. v. Morris J. ST. ANGELO.
    No. 63815.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Morris J. St. Angelo applying for writ of prohibition and certiorari. Parish of St. Tammany.

Writ denied. See LSA-C.C.P. Art. 2592, as amended by Art. 130 of 1974.


text:
    STATE of Louisiana ex rel. Clarence VEAL, Jr. v. Judge Nestor L. CURRAULT et al.
    No. 63854.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Clarence Veal, Jr. applying for writ of mandamus. Parish of Jefferson.

Writ denied.

DIXON, J., would grant the writ. See State ex rel. Wikberg v. Henderson, La., 292 So.2d 505.


text:
    In re James E. SHIELDS, Attorney.
    No. 63834.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re James E. Shields, Attorney, applying for supervisory writs and stay order. Orleans Parish.

Writ granted. A contradictory hearing ordered to determine whether relator is in constructive contempt in violation of La.C. Cr.P., Art. 23(2).

SUMMERS, C. J.,

dissents, being of the opinion that the ruling of the trial judge was correct. The contempt of court was direct and a contumacious failure to comply with the order of the trial judge to appear in court, action tending to interrupt or interfere with the business of the court and to impair its dignity and respect for its authority. La.Code Crim.Pro. Art. 21(5). Moreover, relator’s petition is both derogatory and insulting to the judge and should be returned.


text:
    STATE of Louisiana v. Ellis GUILLOT.
    No. 63840.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Ellis Guillot, applying for remedial writs. Jefferson Parish. 353 So.2d 1005.

Writ denied.


text:
    STATE of Louisiana v. Bruce W. SHANNON.
    No. 63878.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Bruce Shannon applying for writs of certiorari, mandamus and prohibition. Parish of Orleans.

Granted. Trial judge is ordered to reopen the hearing on the motion for new trial and permit defendant to call his witness Soto and take his testimony on the witness stand, and other defense witnesses, if any, and then to rule on the motion for new trial.


text:
    STATE of Louisiana v. Glendell SHOWERS.
    No. 63856.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Glendell Showers applying for writ of mandamus. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana v. Murry SMITH.
    No. 63870.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re State of Louisiana applying for supervisory writs. Parish of East Baton Rouge.

Denied.

SUMMERS, C. J., and MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. Henrietta PERKINS.
    No. 63877.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re State of Louisiana applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu.

Writ denied.

SUMMERS, C. J., would grant the writ.


text:
    STATE of Louisiana ex rel. Autry Lee JONES v. Hayden J. DEES.
    No. 63867.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Autry Lee Jones applying for writ of certiorari. Parish of Evangeline.

Writ denied.


text:
    STATE of Louisiana ex rel. Clyde WELLS v. 17TH JUDICIAL DISTRICT COURT, PARISH OF LAFOURCHE.
    No. 63855.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Clyde Wells applying for writ of mandamus. Parish of Lafourche.

Writ denied. Application is moot.


text:
    STATE of Louisiana ex rel. Leroy GIPSON, Jr. v. CLERK OF COURT, 1ST JUDICIAL DISTRICT COURT, PARISH OF CADDO.
    No. 63852.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Leroy Gipson, Jr. applying for writ of mandamus. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Herman DOUGLAS.
    No. 63851.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Herman Douglas applying for remedial writ. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Gregory KITT.
    No. 63817.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Gregory Kitt applying for remedial writ. Parish of Orleans.

Writ denied. Appeal pending.


text:
    STATE of Louisiana ex rel. William PASCHEL v. Ralph PARNELL, Attorney at Law.
    No. 63841.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re William Paschel, applying for writ of mandamus. Parish of Webster.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert Earl GAGE v. Frank C. BLACKBURN, Warden.
    No. 63847.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Robert Earl Gage applying for writs of mandamus, certiorari and review. Parish of Bossier.

Writ denied.


text:
    STATE of Louisiana v. Anthony BELLOW.
    No. 63814.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Anthony Bellow applying for writs of certiorari and/or review. Parish of Lafayette.

Writ denied.


text:
    STATE of Louisiana ex rel. Paul A. PETTA v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 63808.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Paul A. Petta, applying for writ of certiorari. Orleans Parish.

Writ denied.


text:
    Willie PLAIN, d/b/a Interstate Shell Service v. REFRIGERATED TRANSPORT CO., INC. and James L. Soukup.
    No. 63848.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Willie Plain, d/b/ Interstate Shell Service, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ granted. The judgment of the Court of Appeal is amended to dismiss the plaintiff’s case as of non-suit without prejudice.

SUMMERS, C. J., would grant the writ.

BLANCHE, J., recused.


author: SUMMERS, C. J. and BLANCHE, J.,

text:
    Nolan J. EDWARDS v. The TIMES-PICAYUNE PUBLISHING CORPORATION et al.
    No. 63829.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re The Times-Picayune Publishing Corp. applying for writs of certiorari, prohibition and mandamus. Parish of Acadia.

Writ granted in part, denied in part. As to assignment (question of law) 7, the trial court’s ruling is reversed, and the witness Hamilton is required to disclose the aggregate amount of fees he derived from executive clemency matters during the most recent two years in which he filed income tax returns, and also to disclose the approximate number of individuals he represented before the pardon board in the year August 1, 1977 to August 1, 1978.

All other assignments of error (questions of law) are denied, as either being matters not reasonably calculated to lead to discovery of admissible evidence, or so tenuously so that the trial court did not abuse its discretion in denying discovery as unduly burdensome.

SUMMERS, C. J. and BLANCHE, J.,

dissent from the order and would deny the writ in its entirety, agreeing with the rulings of the Court of Appeal and trial court. These rulings are interlocutory, preliminary to the trial on the merits and for these reasons this Court should not interfere with the orderly proceedings in the trial court in the absence of palpable error and irreparable and grievous injury.


text:
    STATE of Louisiana ex rel. Billy Ray WASHINGTON v. Frank C. BLACKBURN, Warden.
    No. 63846.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Billy Ray Washington applying for writ of mandamus. Parish of Caddo.

Writ granted. Applicant is ordered furnished a transcript of hearing in which he pleaded guilty.


text:
    STATE of Louisiana v. Neil H. SANDERS.
    No. 63864.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re State of Louisiana applying for writ of certiorari. Parish of Orleans.

Writ granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Frank A. Marullo, Jr., Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 2nd day of March, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    Charles RAY v. ASSOCIATED INDEMNITY CORPORATION and Rose Lacour.
    No. 63796.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Charles Ray applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 365 So.2d 5.

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:
    Patricia C. RUE and Lloyd Rue, Jr. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.
    No. 63813.
    Supreme Court of Louisiana.
    Feb. 16, 1979.
   In re Patricia C. Rue and Lloyd Rue, Jr. applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Lafayette.

Writ granted.

SUMMERS, C. J., and MARCUS, J., would not grant the writ.

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


author: ELLIS, Judge.

text:
    James Emmitt WILLIAMS v. B. F. DIAMOND et al.
    No. 12089.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1978.
    Robert B. Nolan, New Orleans, for appellant.
    Paul H. Due, Baton Rouge, and Joseph H. Simpson, Amite, for plaintiff-appellee.
    Michael A. Patterson, Baton Rouge, for Intervenor-Mover.
   ON MOTION TO DISMISS APPEAL

Before LANDRY, SARTAIN and ELLIS, JJ.

ELLIS, Judge.

Trial was held on the merits of this case on November 16, 1977, and the case taken under advisement in December, 1977, after briefs were filed by the parties. On January 9, 1978, George & George, Ltd., a professional law corporation, was permitted to intervene to establish its rights under an attorney-client contract with the plaintiff. Apparently an answer was filed to the petition of intervention, but no hearing has been held thereon.

On January 27, 1978, judgment on the merits was signed, which does not mention the intervention. A suspensive appeal was taken by the defendants.

In this court, Intervenor has moved to dismiss the appeal on the ground that the judgment appealed from is not final, since it does not adjudicate the rights of all the parties, particularly with respect to the intervention. It is alleged that the judgment is, therefore, interlocutory rather than final.

An intervention may be filed at any time after answer is filed, with leave of court, if it will not retard the progress of the principal action. Article 1033, Code of Civil Procedure. Principal and incidental actions, in the same suit, may be tried separately, and separate judgments rendered in each. Article 1038, Code of Civil Procedure. Article 1915 of the Code of Civil Procedure provides, in part, as follows:

“A final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
“(4) Renders judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
“If an appeal is taken from a judgment, the trial court nevertheless shall retain jurisdiction to adjudication the remaining issues in the case.”

Under the foregoing authorities, the trial judge had the discretion to proceed as he did, and the judgment signed by him is a final appealable judgment.

The motion to dismiss is therefore without merit, and is denied, at Intervenor’s cost.

MOTION DENIED.


author: EDWARDS, Judge.

text:
    NATIONAL SAFE CORPORATION v. BENEDICT & MYRICK, INC.
    No. 12153.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1978.
    Victor A. Sachse of Breazeale, Sachse & Wilson, Baton Rouge, for appellant.
    Donna Fraiche, Baton Rouge, for appel-lee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

On April 7, 1978, National Safe Corporation, the appellee, filed a motion to dismiss this appeal, contending that the trial court’s judgment, granting a partial summary judgment, is an interlocutory judgment and is not appealable absent a showing of irreparable injury.

We find this contention untenable.

All summary judgments, whether they grant all or only a part of the relief prayed for, are final judgments and consequently are appealable. LSA-C.C.P. arts. 968 and 2083. See Beckham v. Hartford Accident and Indemnity Company, 137 So.2d 99 (La.App. 3rd Cir. 1962).

Accordingly, the motion to dismiss is denied at appellee’s cost.

MOTION DENIED.