text:
    Alton CREDEUR v. Norbert R. LUKE et al.
    No. 63056, 63430.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearings Denied April 9, 1979.
    Richard R. Kennedy, Lafayette, for plaintiff-applicant.
    Edward C. Abell, Jr., Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for Continental Ins. Co. and Keith A. Steeles.
   CALOGERO, Justice.

We granted writs upon application of plaintiff, Alton Credeur and one of the defendants, Norbert Luke in this lawsuit which involves injuries sustained by plaintiff while cleaning the inside of a tank truck belonging to his employer Chemical Processing, Inc. d/b/a Pollution Disposal Service. Each applicant contends that the trial court erred in granting summary judgment to the insurer Continental Insurance Company and that the Court of Appeal erred in affirming that judgment. Whether Norbert Luke is covered by a comprehensive automobile liability policy issued by Continental Insurance Company is the only question in this case in its present posture.

Norbert Luke is a chemical engineer who is the president and owner of Luke Engineering Corporation and of Chemical Processing, Inc., d/b/a Pollution Disposal Service, both Louisiana corporations. Plaintiff Alton Credeur was employed by Chemical Processing, Inc. and at the time of the accident was working in the course and scope of his employment. There was in effect at the time of the accident a single policy of liability insurance incorporating provisions for comprehensive general liability and comprehensive automobile liability insurance issued by defendant, Continental Insurance Company. The named insureds on that policy were Chemical Processing, Inc., Luke Engineering Corporation, and Norbert Luke.

The courts below determined that neither the comprehensive general liability nor the comprehensive automobile liability provisions of the policy extended coverage to Norbert Luke, the former because of an exclusion applicable to bodily injury arising out of the ownership, maintenance, operation, use, loading, or unloading of any automobile, the latter because of a policy provision known as a “cross-employee exclusion.” It is the latter exclusion to which our attention is directed in this case.

The comprehensive automobile liability feature of the policy provides that the insurer “will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of C. bodily injury or D. property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading or unloading, of any automobile. . . . ” For present purposes in this litigation there is no contention being made that the comprehensive automobile feature of the liability policy is generally inapplicable to the tank truck related injury sustained by plaintiff. Rather the insurer has urged, successfully in the lower courts, that even though Norbert Luke is a named insured in the policy he is not an insured with respect to bodily injury to plaintiff, a fellow employee injured in the course and scope of employment. Part II, “Persons Insured” is the provision at issue. It provides:

“II. PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured;
* * * * * *
None of the following is an insured:
(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment;”
******

Continental has argued, and the courts below have accepted the argument, that the foregoing, known as the cross-employee exclusion, and the intent thereof, is to deny liability coverage as regards claims by employees who have a remedy under the workmen’s compensation act. Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970) and Myers v. Fidelity & Casualty Co. of New York, 152 So.2d 96 (La.App. 3rd Cir. 1963). Continental further contends and not without some support, that Norbert Luke, notwithstanding that he is president of plaintiff’s employer, Chemical Processing, Inc., is a co-employee, a fellow employee of the plaintiff laborer, Credeur, and cites language to that effect in Manuel v. Liberty Mutual Insurance Company, supra.

In support of that conclusion Continental relies upon Heiser v. Gibson, 386 F.Supp. 901 (E.D.La.1974) and Mauterer v. Associated Indemnity Corporation, 332 So.2d 570 (La.App. 4th Cir. 1976) in addition to Manuel. In each of those cases it was concluded that an executive officer is an employee for the purpose of a cross-employee exclusion.

The problem with relying upon those cases is that in no one of these cases was there involved as a purported co-employee of plaintiff’s a named insured. The distinction in our view mandates a contrary result in this case. In a policy in which the only named insured is a corporate employer, it may indeed make sense coverage-wise to exclude as insureds all employees of the company including executives for the reason that injured co-employees are designedly restricted in the policy’s contemplation to recovery of workmen’s compensation benefits where injured in the course and scope of employment through the negligence of another employee of the company including by negligent operation of a motor vehicle. It is entirely another matter where a named insured is an individual who is also an employee of the corporation for whom the plaintiff employee works. The individual employed by the corporation, even as president, is not an employer of Alton Credeur and is not exposed to a workmen’s compensation obligation, nor clothed with the protective features of the compensation act. The cross-employee exclusion is not, even arguably, designed to apply with respect to an individual who is not plaintiff employee’s employer. See Motor Vehicle Casualty Company v. Smith, 247 Minn. 151, 76 N.W.2d 486 (1956).

Independent of the foregoing reasons, and more directly pertinent in the resolution of the legal issue before us, the provisions of the policy are ambiguous. In the one instance the policy declares that the named insured is an insured. In a second provision the policy declares in effect that an employee is not an insured (in given circumstances). The established rule is that any doubt or ambiguity as to the meaning of a provision in an insurance policy must be construed liberally in favor of the insured and against the insurer. When the ambiguity relates to a provision which limits liability under the policy, the law requires that the contract be interpreted liberally in favor of coverage. Craft v. Trahan, 351 So.2d 277 (La.App. 3rd Cir. 1977).

Decree

For the foregoing reasons the ruling of the district court sustaining the motion for summary judgment and the judgment of the Court of Appeal are reversed. The case is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

SUMMERS, C. J., dissents for the reasons assigned by the Court of Appeal. See 362 So.2d 1175.

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

      . Plaintiffs injury occurred while he was cleaning the inside of a tank attached to a truck owned by Chemical Processing and used to carry crude oil and glycol. Plaintiff descended into the tank which was not ventilated without a gas mask or any other protective device. He was overcome by toxic fumes and lay unconscious in the tank until discovered.


source: Caselaw Access Project

author: PIKE HALL, Jr., Justice Ad Hoc.

license: Public Domain

text:
    Lunder S. JOHNSON, Administrator of Succession of Claray Smith v. OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA.
    No. 63129.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.

      Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendant-applicant.
    Edward A. Griffis, E. B. Dittmer, II of Talley, Anthony, Hughes & Knight, Bogalu-sa, for plaintiff-respondent.
   PIKE HALL, Jr., Justice Ad Hoc.

The Administrator of the Succession of Claray Smith brought suit against the defendant insurer seeking to recover $17,-583.74 under a mortgage cancellation life insurance policy issued to the decedent. Defendant resisted payment on the ground that the application for insurance contained material misrepresentations made by decedent with the intent to deceive the insurer. The trial court found the application inadmissible under La.R.S. 22:618(A) because it was not physically attached to the insurance certificate and granted judgment in favor of plaintiff. The court of appeal affirmed. Johnson v. Occidental Life Insurance Company of California, 361 So.2d 1297 (La.App. 1st Cir. 1978). Writs were granted to review the correctness of this ruling. 363 So.2d 1386 (La.1978). We reverse and render judgment in favor of defendant.

On September 17, 1974 Mrs. Smith, in response to a mail solicitation from the insurance company, filled out and signed an application for mortgage cancellation group life insurance which contained the following representations:

“I REPRESENT THAT: (1) I have not reached my 60th birthday. (2) I am not confined to a hospital, rest home, sanitarium nor my home due to illness. (3) I have not had medical attention or medication for heart, kidney or lung disease, cancer, diabetes, blood pressure or other serious illness during the last 5 years. (4) I am actively full time employed or self employed working at least 30 hours a week. (5) I hereby authorize any physician or other person who has attended or examined me to disclose or testify to any knowledge or information thus acquired. I agree that these representations shall form the basis for any insurance granted on this application. . . . ”

On November 1, 1974 the certificate of insurance was forwarded to Mrs. Smith. It was stipulated at trial that a copy of the application form was folded in half and placed on the inside of the cover of the certificate; however, it was not stapled, glued or otherwise physically attached to the certificate. Following Mrs. Smith’s death on February 20, 1975, the succession administrator found the certificate of insurance and application form in decedent’s personal effects. He testified he found the application folded and placed inside the jacket.

The document issued to decedent is like a pamphlet with a heavy paper cover or jacket. The cover contains the name of the company and is labeled “Certificate of Group Credit Life Insurance”. Stapled inside the cover are several pages containing the certificate provisions, commencing with the following statement: “This certificate is issued to the Debtor named on the attached application, which is made a part of the Certificate, as evidence of credit life insurance which is provided under Group Policy No. 8889P, issued by the Company to National Mortgage Company (herein called the Policy holder), and which relates to the contract of indebtedness identified by the account number specified in the application. The insurance is granted subject to the Debtor’s representations in the application.” One side of the cover contains a sleeve on the inside into which the copy of the folded application was placed, similar to the pocket part of a law book. That same side of the cover also has an opening or window through which appears the name and address of decedent which was typed on the application form. Also typed or written on the copy of the application is the account number, present loan balance, amount of insurance, effective date, monthly charge for $1,000 of insurance, and the monthly premium. None of this information including the insured’s name appears any where else in the certificate except on the application form contained within the cover as described.

Evidence adduced at trial through medical records and depositions of doctors showed that Mrs. Smith had a long history of diabetes for which she frequently sought medical attention. In June of 1974 exploratory surgery was performed on her because of a jaundiced condition and it was discovered she had terminal cancer of the pancreas. This condition was concealed from her by her family. According to the testimony of her son and one doctor, Mrs. Smith did not return to work after the surgery in June because she did not feel well enough. She continued to see the doctor. She re-entered the hospital in February of 1975 and died on February 20. The death certificate states that her diabetic condition contributed to her death.

In rendering judgment in favor of plaintiff the lower courts held that the defendant insurance company was precluded from raising the defense of material misrepresentations in the application for insurance because the application was not “physically attached” to the certificate of insurance within the terms of La.R.S. 22:618(A). That statute provides, in pertinent part:

“A. No application for the issuance of any insurance policy or contract shall be admissible in evidence in any action relative to such policy or contract, unless a correct copy of the application was attached to or otherwise made a part of the policy, or contract, when issued and delivered. This provision shall not apply to policies or contracts of industrial insurance subject to R.S. 22:213A(1) and 22:259(2).” (emphasis added)

The lower courts’ determination that the placement of the application in the jacket along with the certificate of insurance was an insufficient attachment for purposes of this statute was based upon decisions of this court dealing with the “entire contract policy” statutes. In our view the lower courts erred in concluding that this jurisprudence stands for the proposition that under La.R.S. 22:618 an application must be physically attached to the policy through staples, glue, paper clips, or the like.

In Spain v. Travelers Insurance Co., 332 So.2d 827 (La.1976) the question before this court was whether, under La.R.S. 22:628, an exclusionary clause in a primary policy would apply to an excess policy by virtue of a clause in the latter which stated that “The provisions of the immediate underlying policy are incorporated as a part of this policy . . .”. Thus, this case did not present a question concerning what mode of attachment would be sufficient but instead dealt with the question of whether the doctrine of incorporation by reference was applicable. In rejecting this notion, this court discussed various statutes in the insurance code, one being La.R.S. 22:618, which require that applications, by-laws or other instruments be attached to the policy to be effective. The salutary purpose of these statutes is that the insured during his lifetime, and the beneficiary after the death of the insured, shall have in their possession at all times the entire evidence of the insurance contract.

In Spain we cited with approval Fisette v. Mutual Life Ins. Co., 162 La. 620, 110 So. 880 (1926) for the proposition that “[t]he Entire Contract Policy Statute must be construed literally so as to require actual physical attachment of the insured’s application to the policy when issued in order to avail the insurer of a defense thereon.” 332 So.2d at 832.

A reading of Fisette shows that it dealt with a situation in which no copy of a required application for the establishment of the policy accompanied, the policy. Thus, Fisette, like Spain, did not deal with a question concerning the sufficiency of a certain manner of attachment. Accordingly, we conclude that the lower courts erred in relying on these cases for the proposition that the placement of the application within the certificate cover was not a sufficient attachment for purposes of La.R.S. 22:618.

The statute requires that the application be “attached to or otherwise made a part of the policy.” A major principle of statutory construction is that courts should interpret statutes in such a manner as to avoid unintended or absurd results. State v. Booth, 347 So.2d 241 (La.1977); Hayes v. Orleans Parish School Board, 256 La. 677, 237 So.2d 681 (1970); Smith v. Town of Vinton, 209 La. 587, 25 So.2d 237 (1946). By placement of the application containing the decedent’s name and other essential data inside of the certificate cover in a sleeve provided for that purpose, the application was attached to or otherwise made a part of the certificate within the meaning of the statute. The purpose of the statute, to assure that the insured is in possession of the entire contract, was unquestionably fulfilled. Accordingly, the application was admissible in evidence in connection with the insurer’s defense of material misrepresentations.

Having determined that the application is admissible, we turn to the merits of the defense which is governed by La.R.S. 22:619(B):

“B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer" (emphasis added).

Under this statute, as interpreted by this court in Gay v. United Benefit Life Insurance Co., 233 La. 226, 96 So.2d 497 (1957), the insurer must prove that the applicant’s false statements were made with the intent to deceive and that they materially affected the acceptance of the risk or the hazard assumed by the insurer. See also Brown v. National Old Life Ins. Co., 345 So.2d 1023 (La.App. 2d Cir. 1975); writ denied 347 So.2d 255 (La.1977); Watson v. Life Insurance Co., of La., 335 So.2d 518 (La.App. 1st Cir. 1976); Parfait v. Minnesota Mutual Life Ins. Co., 311 So.2d 558 (La. App. 4th Cir. 1975), writ denied 313 So.2d 847 (La.1975); Trahan v. Security Life and Trust Co., 199 So.2d 617 (La.App. 3d Cir. 1967).

The record establishes that decedent made several false representations when she signed the application. She had a longstanding diabetic condition and had recently undergone exploratory surgery. Moreover, she ceased working several months prior to signing the application. The trial court made no findings of facts in this respect, but the Court of Appeal correctly found the facts as follows:

“The record establishes beyond doubt that Decedent knowingly misrepresented the state of her health and the matter of her employment. In June, 1974, Dr. Phil-bert J. DeMarie, Surgeon, performed exploratory surgery on Decedent because of a jaundiced condition. The operation revealed cancer of the pancreas, which condition was concealed from Decedent upon the urging of her family. The deposition of Dr. DeMarie and the hospital record conclusively show that at this time Decedent was suffering from diabetes and had lost 20 pounds on a diabetic diet.
Dr. J. H. Kety, General Practitioner, testified that he knew Decedent who worked at the hospital. He stated that on numerous occasions, Decedent spoke to him in the hospital halls about her condition, and that Decedent visited his office on March 1, 1974, on which occasion her chief complaint was diabetes. Dr. Kety prescribed medication for diabetes and saw Decedent again on March 22, 1974, for diabetes. Decedent returned to Dr. Kety’s office on May 3, 1974, complaining of high blood pressure, for which condition medication was prescribed. In May, 1974, Decedent exhibited symptoms of jaundice for which she was eventually hospitalized in June. Following the surgery, Dr. Kety considered Decedent totally disabled because her condition worsened steadily. Dr. Kety encouraged Decedent to attempt to work, but she stated that she did not feel well enough to work. Decedent was seen by Dr. Kety on September 4, 1974, approximately 2 weeks before the application for subject insurance was signed. At this time, he considered that Decedent was still deteriorating.”

In determining whether the statements were made with the intent to deceive the insurer, we are guided by the opinion of Judge (now Justice) Blanche in Watson v. Life Ins. Co. of La., 335 So.2d 518 (La.App. 1st Cir. 1976):

“Strict proof of fraud is not required to show the applicant’s intent to deceive, because of the inherent difficulties of proving one’s intent. The intent to deceive must be determined from the attending circumstances which indicate the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that the insured recognized the materiality of the misrepresentations.” (citations omitted)

As evidenced by medical records introduced at trial and the deposition of one doctor, the decedent was well-aware of her diabetic condition. She was also certainly aware that she had recently undergone surgery after which she could not and did not return to work. Considering the number and nature of the misrepresentations and the decedent’s knowledge of this falsity the reasonable assumption is that she recognized the materiality of the misrepresentations and that there was an intent to deceive.

Plaintiff argues that the solicitation letter which emphasized the availability of the insurance coverage without physical examination and the application form which did not require the decedent to consciously answer specific questions concerning her health weigh against a finding that she was aware of the significance of the representations contained in the application.

The representations in the application form contain a bold face heading, are not hidden in fine print, and it is stated that the representations shall form the basis for any insurance granted on the application. The solicitation letter advises that the applicant’s signature on the application is necessary to show the applicant is qualified for the insurance. The solicitation letter and application are not misleading and fairly and reasonably inform the applicant of the representations and their materiality.

An underwriting manager for the credit division of the insurer testified that an application for the type of insurance purchased by decedent is automatically declined if the applicant indicates he has diabetes or other serious health problems. According to the witness, this type of policy cannot be issued at higher rates in the event the applicant indicates health problems. If an applicant states he is not presently employed the company conducts an investigation to determine the cause of unemployment. This uncontradicted testimony establishes that the misrepresentations made in this case were material since they had a direct bearing on the company’s decision to accept the risk. Thus, we conclude that the company may void the policy because of the misrepresentations made by decedent.

For the reasons assigned the judgment below in favor of plaintiff is reversed and set aside. Judgment is rendered rejecting plaintiff’s demands, at plaintiff’s costs.

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


author: CUTRER, Justice Ad Hoc.

text:
    STATE of Louisiana v. Ruby Lee CLEMENT.
    No. 63173.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied April 9, 1979.

      Oliver “Jackson” Schrumpf, Sumpter & Schrumpf, Sulphur, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Nick Pizzolatto, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CUTRER, Justice Ad Hoc.

Ruby Lee Clement was charged by bill of information with possession of a firearm after having previously been convicted of a felony in violation of La.R.S. 14:95.1. After trial by jury, she was found guilty as charged and sentenced to serve seven years at hard labor. On appeal, defendant relies on four assignments of error for reversal of her conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends La.R.S. 14:95.1 is violative of the equal protection provisions of both the state and federal constitutions. U.S.Const. amend. XIV; La.Const. art. 1, § 3. She argues that this statute is unconstitutional in that the same act (carrying a concealed weapon) can be punished as a misdemeanor (La.R.S. 14:95) or as a felony (La.R.S. 14:95.1) at the discretion of the prosecutor and that, as such, it treats similarly situated persons in a dissimilar manner. Defendant further avers that La. R.S. 14:95.1 is unconstitutional in that the felonies enumerated therein include non-violent crimes (e. g., violations of our Uniform Controlled Dangerous Substances Law) and omit other violent offenses (e. g., assault and battery). She contends that such classification is arbitrary and capricious.

La.R.S. 14:95.1 was part of a 1975 amendment adding provisions to the previously existing La.R.S. 14:95. La.R.S. 14:95 makes criminal the illegal carrying of weapons. The penalty for violation of La.R.S. 14:95 is a fine of not more than five hundred dollars or six months in jail, or both.

In 1975 the legislature enacted special legislation to punish a person who has been convicted of certain enumerated felonies and who possesses a firearm or concealed weapon. La.R.S. 14:95.1. The statute contemplates proof of prior conviction of an enumerated offense as well as possession or concealment of a weapon. State v. Sanders, 337 So.2d 1131 (La.1976). By its passage of La.R.S. 14:95.1 the legislature raised the maximum penalty for carrying a concealed weapon from six months and five hundred dollars (La.R.S. 14:95) to a maximum of ten years without benefit of pardon, parole, or suspension of sentence and a maximum fine of five thousand dollars because the offender has committed prior felonies.

Defendant argues that these differing penalty provisions renders La.R.S. 14:95.1 unconstitutional (when construed with La. R.S. 14:95) as prescribing dissimilar punishment for the same act.

Defendant’s argument misconstrues the nature and effect of these provisions. In pertinent part, La.R.S. 14:95 proscribes the intentional concealment of any firearm on one’s person. In contrast, under La.R.S. 14:95.1, it is not the possession or concealment of a weapon — standing alone — which is a felony. It is made a felony only when the person committing the act has previously been convicted of one of the enumerated offenses. The act of possessing or concealing a weapon becomes a felony only because the offender has the status of a convicted felon. See State v. Sanders, supra; see also State v. Williams, 358 So.2d 943 (La.1978). As this court indicated in State v. Amos, 343 So.2d 166, 168 (La.1977), such differentiation is not impermissible:

“We are satisfied that it is reasonable for the legislature in the interest of public welfare and safety to regulate the possession of firearms for a limited period of time by citizens who have committed certain specified serious felonies. Courts of other states having statutes and constitutional provisions comparable to our own have similarly concluded that such regulation is constitutionally permissible as a reasonable and legitimate exercise of police power.” (citations omitted)

Neither do we accept defendant’s contention that the felonies enumerated in La.R.S. 14:95.1 constitute arbitrary and capricious legislative classification. The felonies enumerated in La.R.S. 14:95.1 are, in the first instance, a matter entrusted to the judgment of the legislature. Violations of the Uniform Controlled Dangerous Substances Law remain serious felony offenses, notwithstanding their apparent lack of violence. The exclusion of other, potentially violent felonies (e. g., assault and battery) does not render the enumeration arbitrary or capricious.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial court erred in denying her motion for a new trial grounded upon the claim that the state failed to comply with its discovery obligation.

Prior to trial, defendant filed a motion for discovery requesting, inter alia, that the state furnish a copy of any record of the defendant’s criminal arrests and convictions. The trial judge granted this motion.

At trial, defendant testified in her own behalf. On cross-examination, the district attorney asked defendant if she had been convicted of cruelty to a juvenile and sentenced to serve 90 days in jail in Lake Charles, Louisiana, in 1957. Defendant responded that she had never been convicted of cruelty to a juvenile.

After trial, but prior to sentencing, defendant filed a motion for a new trial alleging that the state, without malice or wrongful intention, had not furnished to defendant a record of her arrest or conviction as to the alleged 1957 charge of cruelty to a juvenile. Therefore, defendant, argued, the state’s cross-examination of defendant on the 1957 charge was prejudicial and adversely affected her credibility before the jury.

Upon motion of the defendant, the court shall order the district attorney or the appropriate law enforcement agency to furnish to defendant a copy of any record of her criminal arrests and convictions that is in their possession or custody. La.Code Crim.P. art. 717. If, subsequent to compliance with an order issued pursuant to the discovery articles and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is, or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection. La.Code Crim.P. art. 729.3.

It is thus apparent that defendant was entitled to a copy of any record of her criminal arrest and conviction relating to the alleged 1957 charge of cruelty to a juvenile in the possession of the state. However, our review of the record reveals that no objection was made by defense counsel contemporaneously with the questioning now assigned as error. La.Code Crim.P. art. 841 provides, and this court has consistently held, that an irregularity or error in the proceeding cannot be availed of after verdict unless it is objected to at the time of its occurrence. See State v. Matthews, 354 So.2d 552 (La.1978); State v. Ford, 349 So.2d 300 (La.1977); State v. Finley, 341 So.2d 381 (La.1976). Hence, this issue is not properly before us.

Moreover, we note that on direct examination, defense counsel questioned defendant concerning several other previous convictions: a 1973 conviction for murder without malice in Texas; a 1968 conviction for forgery; a 1969 conviction for forgery; a 1971 conviction for simple assault and shoplifting; a 1972 conviction for petty theft; and a 1973 conviction for misdemeanor theft. Consequently, we are unable to say that the state’s questioning of defendant as to an alleged 1957 conviction for cruelty to a juvenile probably resulted in a miscarriage of justice, was prejudicial to the substantial rights of the accused, or constituted a substantial violation of a constitutional or statutory right. Hence, any error that might have resulted from the state’s failure to comply with its discovery obligation is not reversible. La.Code Crim.P. art. 921; State v. Williams, 347 So.2d 214 (La.1977).

Assignment of Error No. 2 is without merit.

ASSIGNMENT OP ERROR NO. 3

Defendant contends the trial judge erred in allowing the admission of a certain item of physical evidence. She argues that the state failed to lay the proper foundation for the admission of the item in that the state did not establish a proper chain of custody.

At trial, the arresting officer, Bushnell, testified that when he searched defendant he found a .22 caliber double barrel Derringer pistol tucked into the left side of her waistband. After retrieving the pistol, Bushnell handed it to Officer Davis, the identification officer. Bushnell positively identified the pistol as the one recovered from defendant. This in-court identification was strengthened by the fact that Bushnell had scratched his initials on the barrel of the pistol. The state, at this point, offered the pistol in evidence, to which defendant objected. The trial court sustained the objection.

Thereafter, the identification officer, Davis, testified that, after being given the pistol by Bushnell, he also scratched his initials on the barrel, tagged it for identification, and placed it in his evidence locker at the police station. Davis indicated that his evidence locker was locked and that only he and Officer Palmertree (evidence custodian) had the keys to the locker. Davis also indicated that he had taken the pistol out of the locker several times and that there was no log book or other record reflecting the movements of the pistol. Davis also positively identified the pistol as the one taken from defendant, and noted his initials on the barrel.

The state again offered the pistol in evidence, to which defendant re-urged her objection. The trial judge overruled defendant’s objection and admitted the item into evidence.

To admit demonstrative evidence at trial, the object must be identified. This identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence. State v. Leggett, 363 So.2d 434 (La.1978); State v. Drew, 360 So.2d 500 (La.1978). For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is the one connected with the ease. State v. Drew, supra; State v. Robertson, 358 So.2d 931 (La.1978); State v. Collins, 328 So.2d 674 (La.1976).

After reviewing the testimony of Officers Bushnell and Davis, we find that the state laid an adequate foundation for admission of the pistol into evidence by showing that it was more probable than not that the pistol was the one seized from defendant. Hence, the trial judge did not err in admitting the item into evidence.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in refusing to give a special requested charge relating to the defense of justification. She argues that the trial judge was required to give the charge because it was wholly correct and pertinent.

Defendant testified that on the date of the alleged offense, she, her daughter, and her two-year-old grandchild were visiting the residence of Charles Thibeaux. Defendant was preparing to go to a nearby store, when she observed the grandchild playing with a pistol.

Defendant took the weapon from the child and, rather than leave the pistol inside the house, placed it in the waistband of her pants. Thereafter, defendant left the house to go to a store in the area. Upon her return from the store, defendant was stopped by the police, who seized the weapon from her possession.

Defendant thus admitted that the pistol was in her possession when she was stopped by the police. She stated that she took the pistol away from her grandchild to prevent him from hurting himself and that she did not know whether the pistol was loaded or not. Upon cross-examination, defendant indicated that, at the time she took the pistol from the child, there were four adults inside the Thibeaux residence. She stated that she did not leave the pistol with one of the other adults because she “was in somebody else’s house.”

At the close of testimony, defendant furnished the trial court with a written list of suggested charges dealing with the defense of justification. The trial judge rejected these charges, stating that “[tjhere was no evidence to indicate that these changes be given.” Defendant objected to this ruling.

It is the duty of the trial judge to give a requested charge, which does not require qualification, limitation, or explanation and is not included in the general charge or in another special charge to be given, if it is wholly correct and pertinent to the case. La.Code Crim.P. art. 807; State v. Marse, 365 So.2d 1319 (La.1978); State v. Miller, 338 So.2d 678 (La.1976); State v. Youngblood, 235 La. 1087, 106 So.2d 689 (1958). This is a corollary of the trial judge’s basic obligation to charge the jury as to the law applicable to the case, under which he is required to cover every phase of the case supported by the evidence whether or not accepted by him as true. La.Code Crim.P. art. 802; State v. Marse, supra; State v. Miller, supra. It follows from these rules that the trial judge is required to charge the jury, in response to an otherwise proper request, as to the law applicable to any theory of defense which a jury could reasonably infer from the evidence. State v. Marse, supra. The requested charge, however, must be supported by the evidence, for the trial court is not required to instruct the jury on abstract principles of law. See State v. Fox, 251 La. 464, 205 So.2d 42 (1967); State v. Johnson, 250 La. 85, 193 So.2d 794 (1966).

The special charges requested by defendant reflect that her claim of justification was based upon the contentions that her conduct constituted “reasonable discipline of minors by their parents, tutors, or teachers,” (La.R.S. 14:18(4)) or was “in defense of persons or of property under any of the circumstances described in Articles 19 through 22” [La.R.S. 14:18(7)].

The testimony of the defendant clearly reflects that the trial court’s refusal to give the requested charges was correct. Assuming, but without deciding the applicability of the principle of justification to a prosecution of the crime charged herein, there is no evidence presented from which the jury could infer any theory of defense grounded upon the law of justification. No justification could apply at a point in time when defendant left the residence, proceeded to walk to a store in the area with a friend and with the pistol tucked in her waistband. There was ample time and opportunity, before leaving, to give the weapon to one of the other adults or to place the weapon in a safe place in the house. Hence, the trial judge did not err in rejecting defendant’s requested charges.

Assignment of Error No. 4 is without merit.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

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

      . The statute provides greater penalties for multiple offenders. Upon a second conviction, the offender shall be imprisoned with or without hard labor for not more than five years. La.R.S. 14:95(C). On third and subsequent convictions, the offender shall be imprisoned with or without hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence. La.R.S. 14:95(D).

      . The enumerated felonies are: first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the enumerated offenses. La.R.S. 14:95.1 A.

      . In her motion for a new trial, defendant alleged that defense counsel entered an appropriate objection at a bench conference requested by defense counsel. The record does indicate that an off-the-record discussion between counsel and the judge did occur immediately prior to the state’s cross-examination relating to the alleged 1957 conviction. There is, however, no indication as to the nature of the discussion, any ruling made by the trial judge during the discussion, or any defense objection as to any ruling so made by the trial judge. Immediately after this discussion, the state began questioning defendant as to the 1957 conviction. Again, no objection was entered by defense counsel during this questioning. We therefore consider that defendant failed at any time to enter a proper objection to the state’s alleged improper cross-examination of defendant.

      . In apparent conflict with this testimony, Charles Thibeaux later testified that defendant, her daughter, and the grandchild had been living with him for several months.

      . La.R.S. 14:19 provides as follows:
      “The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.”
      La.R.S. 14:22 provides as follows:
      “It is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person.”


author: SUMMERS, Chief Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. James F. QUAID, Jr.
    No. 58520.
    Supreme Court of Louisiana.
    March 5, 1979.

      Leonard Führer, Alexandria, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, John F. Pugh, Thibo-daux, A. Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, for Louisiana State Bar Ass’n Committee on Professional Responsibility.
    Milton P. Masinter, New Orleans, for defendant-respondent.
   DISCIPLINARY PROCEEDING

SUMMERS, Chief Justice.

James F. Quaid, Jr., was found guilty of the offense of burglary in Fulton County, Georgia, on December 14, 1973, in that he “did unlawfully, without authority, enter into the building and place of business of The Robinson-Humphrey Company, Inc., with intent to commit a theft, and did take and carry away from said building [list of property bonds] all of the value of $4,118,-000.00 and the property of The Robinson-Humphrey Company, Inc., as bailee, with the intention of depriving said owner of said property . . . .” He was thereafter sentenced to serve ten years at hard labor in the custody of the Georgia Department of Corrections. The conviction of the offense is now final, all appeals having been exhausted.

Quaid was admitted to the Louisiana Bar in 1960, and served as an Assistant District Attorney for Jefferson Parish from 1967 to 1969. After his conviction, he was incarcerated in the Georgia penitentiary until his release in February 1977. He thereafter returned to Louisiana and is now employed in the airport and highway construction business. Quaid is presently on parole and is attempting to obtain a pardon from his conviction.

After his conviction in the Georgia courts, the Committee on Professional Responsibility made a thorough study of the statute violated and determined that the crime of which Quaid was convicted constituted a serious crime, a felony, one of the necessary elements of which, as determined by the statute defining such crime, reflects upon the attorney’s moral fitness to practice law. On September 30,1976, Quaid was suspended from the practice of law by order of this Court, and the Committee was ordered to institute the necessary disciplinary proceedings against him. Stephen T. Victory was appointed Commissioner to take evidence and to report to this Court his findings of fact and conclusions of law with respect to this respondent. The hearing was held September 21, 1978, and the Commissioner, after receiving evidence and testimony of mitigating circumstances, has recommended that the appropriate action in this case is disbarment.

After an attorney’s conviction of a felony or other serious crimes, the elements of which reflect upon the attorney’s moral fitness to practice law, has become final, that is, all appeals have been concluded or exhausted, the procedure shall be as follows:

“(a) The Committee will file a petition in the Supreme Court seeking disbarment or any other remedy that the Committee deems appropriate, and the petition will be served upon the respondent in the same manner as in ordinary proceedings.
(b) When the issue is joined by answer by the respondent, a Commissioner will be appointed by the Supreme Court to represent the Court in the same manner as in ordinary proceedings.
(c) At the hearing before the Commissioner, the certificate of the conviction of the respondent shall be conclusive evidence of his guilt of the crime for which he has been convicted.
(d) At the hearing based upon a respondent’s conviction of a crime, the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.
(8) Except as provided hereinabove in this Section, the procedure with reference to proceedings based on a conviction of a crime, shall be conducted in the same manner as in ordinary proceedings.” Louisiana State Bar Association, Articles of Incorporation, Art. XV, Section 8, Paragraphs 7(a)-(d). LSA Vol. 21-A.

The sole issue to be determined by the Supreme Court in a disciplinary proceeding based on conviction of a crime is whether the crime warrants discipline and, if so, the extent thereof. Louisiana State Bar Association v. Loridans, 338 So.2d 1338 (La.1976). The disciplinary procedure is designed to avoid a retrial of the criminal charge, of which the respondent has been convicted under constitutional safeguards in a court of competent jurisdiction. Louisiana State Bar Association v. Hennigan, 340 So.2d 264 (La.1976).

The offense in question, a felony involving theft of property bonds by an attorney from a firm acting as bailee, runs afoul of at least two basic tenets of the Code of Professional Responsibility:

Disciplinary Rule 1-102 provides in part:
“(A) A lawyer shall not:
******
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

A disbarment proceeding is not so much for the punishment of the attorney as it is for the preservation of the integrity of the courts and the salutary effect it has upon other members of the bar. Louisiana State Bar Association v. Shaheen, 338 So.2d 1347 (La.1976). It is submitted that Quaid’s conduct involves a breach of fiduciary duty so serious that it casts doubt on his ability to loyally represent his clients, and indicates a disregard of ethical standards which reflects his lack of moral fitness for the practice of law.

For the reasons assigned, it is ordered, adjudged and decreed that the name of James F. Quaid, Jr., respondent herein, be stricken from the Roll of Attorneys and his license to practice law in the State of Louisiana is revoked, effective September 30, 1976, the date of this Court’s order suspending respondent from the practice of law, respondent to bear all costs of this proceeding.

       Judge Pike Hall, Jr., participated in this decision as Associate Justice Ad Hoc sitting in the place of Justice Marcus.


author: DIXON, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION v. J. Daniel RIVETTE.
    No. 60906.
    Supreme Court of Louisiana.
    March 5, 1979.

      Nolan J. Edwards, Edwards, Stefanski & Barousse, Crowley, for defendant-respondent.
    Leonard Führer, Alexandria, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, John F. Pugh, Thibo-daux, A. Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, for Louisiana State Bar Association Committee on Professional Responsibility.
   DISCIPLINARY PROCEEDING

DIXON, Justice.

The Louisiana State Bar Association charged J. Daniel Rivette with the violation of disciplinary rules in two counts. First, the respondent is charged with receiving money from a client, John V. Ott, commingling and converting the funds to his own use, and failing to account for and repay the funds. Second, respondent is charged with accepting $200.00 from a client, John K. Tice, as a fee, then failing to perform the services for which he had been paid, and failing to account for and repay those funds.

After due proceedings and a hearing before Charles Hanemann, the Commissioner appointed by this court, respondent was found to have violated Disciplinary Rules 1-102(A)(4), 7-101(A)(2) and 9-102(A) and (B). The Commissioner recommended suspension for one year, a reprimand, and restitution to Tice. The Committee on Professional Responsibility made no recommendation. We agree with the Commissioner.

The Ott complaint arose in an unusual way. Rivette had attended law school with Ott’s cousin. (Rivette had been admitted to the bar sixteen years before the hearing). In the late fifties or early sixties, when Rivette moved to New Orleans to practice law, he and Ott lived together on Royal Street. Ott and his wife were separated. Rivette later represented Ott in an uncontested divorce proceeding brought by his wife, and in the termination of the community property settlement. Ott was never billed for services, but said he gave Rivette a watch as sort of a fee.

After the divorce, Ott and his wife made some arrangements about support for Ott’s children. Apparently, Ott convinced his wife to reduce the child support payments and permit Ott to put away some money periodically to be used in the future for the educational needs of the children., -Rivette did not participate in these arrangements, but agreed that Ott would send him money for this purpose. From April of 1965 to February of 1966 Ott sent twelve checks to Rivette (who was then practicing in Church Point) in amounts ranging from $75.00 to $200.00, totaling $1150.00. At the hearing Ott and Rivette agreed that Ott expected the return of his money on demand, plus interest. Rivette said Ott had given permission to use the money; Ott said he had not considered the matter.

The account in which Rivette deposited Ott’s checks was specified as Rivette’s “special” account, and was closed October 20, 1967. It was apparently at this time that Ott traveled to Lake Charles with Rivette to visit one of Ott’s cousins. Rivette told Ott on this trip that he was leaving the private practice, closing his accounts, and trying to pay his bills. Rivette told Ott that he had no money, but would borrow from a bank to pay Ott. Ott, still a “close personal friend,” discouraged Rivette from borrowing the money to make the repayment, saying he did not need the money at that time.

Sometime later, Ott purchased a house, needed the money, and wrote Rivette but did not get a reply. Ott then made an effort to locate Rivette in several places in Louisiana without success. One day while at work as a pharmacist at Schwegmann’s, one of Ott’s customers showed him a note written on the back of Rivette’s business card. With this information, Ott consulted a lawyer who referred him to the Bar Association. On December 14, 1975, ten years after Ott had given the money to Rivette, Ott wrote the Louisiana State Bar Association about his inability to get his money back from Rivette. On April 7, 1977 the Committee notified Rivette of an investigative hearing to be held May 28. After this, Rivette paid Ott the money, plus $500.00 as “interest.”

The Commissioner overruled a “plea of prescription” filed by Rivette, found that the funds were received by Rivette in connection with his practice of law and were not only commingled with Rivette’s own funds, but were used, and used up, by Riv-ette. The Commissioner correctly found that “friends and relatives are entitled to the same high standards of integrity from their attorney as are strangers.”

The Commissioner considered all the factors submitted to him on behalf of Riv-ette in mitigation of the offense. The long passage of time influenced his decision, as it does ours. The repayment of the funds is a factor in mitigation but, as found by the Commissioner, should not be given great weight when repayment is accomplished only after the institution of formal charges by the Bar Association. The Commissioner was also impressed by Rivette’s intention to limit his future practice to that of a salaried governmental employee who would not have the responsibility for receiving, accounting for, and repaying clients’ funds. We agree with the Commissioner’s recommendation that Rivette be suspended from the practice of law for one year, and reprimanded for his violation of Disciplinary Rule 9-102.

There is a more serious factual dispute with reference to the second specification against Rivette. John K. Tice, in July, 1976, gave two checks to Rivette. One was for $200.00, the other for $65.00. Tice testified that the $200.00 was to pay Rivette to institute proceedings to obtain the custody of Tice’s child from Tice’s former wife; the $65.00 was to be for court costs. The $200.00 check was cashed; the $65.00 check never cleared the bank, and no more information was obtained concerning its disposition. Rivette maintained that, while employed as an indigent defender in Orleans Parish, he undertook to represent Tice in a separation suit. Rivette claims that he received two checks for $200.00 from Tice; that the first was in part payment for representing Tice in the separation action, and the second was also in part payment of the same fee, which Rivette claimed to have been fixed at $500.00.

Tice claims that Rivette had accepted $200.00 as the full fee for representing him in the separation suit, and had accepted the second $200.00 check after the separation, to attempt to gain the custody of Tice’s child.

Unfortunately, Rivette kept no books or records which might shed light on the arrangement between him and Tice and never sent Tice a bill. However, Rivette has maintained his version of the arrangement, and has not yet repaid Tice the $200.00.

Because of the many contradictions in the record in Rivette’s testimony, the Commissioner accepted Tice’s version as more nearly correct. When Tice belatedly discovered that Rivette had failed to institute custody proceedings, he discharged Rivette and sought the return of his money.

We agree with the Commissioner that Rivette’s testimony and his business practices entitled him to little credence. When he agreed to institute the proceedings on behalf of the client, he should have done so. If he did not intend to institute the proceedings, he should have made it abundantly clear. If there existed any uncertainty about the fee, it was the lawyer’s duty to clarify it.

Although it is to Rivette’s credit that he did not spend Tice’s $65.00, the admitted existence of that check is more consistent with Tice’s version than with Rivette’s. If Rivette did not intend to file the rule for custody, there was no reason for Tice to give him a separate check for $65.00 for advance court costs.

We agree with the Commissioner that respondent violated Disciplinary Rule 7-101(A)(2) in that he intentionally failed to perform the services for which his client had paid him.

Therefore, the respondent, J. Daniel Riv-ette, in addition to the suspension mentioned above, is reprimanded for his violation of Disciplinary Rules 1-102(A)(4) and 7-101(A)(2), and is ordered to return $265.00 to John K. Tice.

CALOGERO, J., concurs in part, would prefer to impose a six months suspension.

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

      . “(A) A lawyer shall not:
      (4) Engage in [illegal] conduct involving dishonesty, fraud, deceit, or misrepresentation.” DR 1-102(A)(4).

      . “(A) A lawyer shall not intentionally:
      (2)Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.” DR 7 — 101(A)(2).

      . “(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      (1) Funds reasonably sufficient to pay bank charges may be deposited therein.
      (2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
      (B) A lawyer shall:
      (1) Promptly notify a client of the receipt of his funds, securities, or other properties.
      (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.
      (3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
      (4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.” DR 9-102(A) and (B).

      . Although the $65.00 check has not cleared the bank, it is still outstanding, and was last in Rivette’s hands. Since Rivette did not produce the $65.00 check, Tice is entitled to $200.00 plus $65.00.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Carl LaRUE.
    No. 62394.
    Supreme Court of Louisiana.
    March 5, 1979.

      John M. Madison, Jr., Wiener, Weiss, Madison & Howell, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Terry L. Lindsey, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

Defendant Carl LaRue was charged with possession of marijuana in violation of R.S. 40:966. He filed a motion to suppress the marijuana seized from his automobile without a warrant. It was denied. He thereupon entered a plea of guilty with reservation of his right to seek review of the trial court’s ruling on the motion to suppress, and filed application for writs to review the conviction and sentence in this Court. We granted a writ of certiorari to review the trial court’s ruling on defendant’s motion to suppress. 363 So.2d 915 (La.1978).

At approximately 4:00 p. m. on January 25,1978 defendant and a companion, Robert Lawson, were driving from Texarkana, Texas to Shreveport, Louisiana to purchase tickets for a concert. As defendant was driving his vehicle near Vivian, Louisiana, a Caddo Parish deputy sheriff observed defendant’s vehicle cross a double yellow line while passing another vehicle. After stopping defendant’s vehicle, and having the driver and passenger disembark, the officer arrested them both. He later charged defendant with driving while intoxicated and driving without a driver’s license. He charged the passenger with public drunkenness. The officer conducted what he contends was an inventory search of the car and found marijuana in the console between the front seats. Although the officer asserted that both arrests were made because both occupants smelled of alcohol and had bloodshot eyes and slurred speech, the only alcohol found in the car was two partially empty beer cans. No field sobriety test was given either occupant. Moreover, the blood alcohol test performed on defendant’s blood revealed an alcohol level under 0.10 percent, the amount which gives rise to a statutory presumption of intoxication. R.S. 32:662.

Defendant’s only assignment of error relates to the trial court’s denial of his motion to suppress illegally seized evidence. Article I, Section 5 of the Louisiana Constitution of 1974 prohibits “unreasonable searches, seizures, or invasions of privacy” by government officials. Under this provision, and a similar provision contained in the Fourth Amendment to the United States Constitution, a search warrant is required as a general rule for a search to be constitutionally authorized. To this general rule, however, historical and practical exceptions have developed justifying warrant-less searches under certain circumstances. The United States Supreme Court has explicitly held that when a car is impounded standard police procedure in making reasonable “inventory searches” to preserve a car owner’s property and protect the police against claims of lost or stolen property does not constitute an unreasonable search which offends the Fourth Amendment to the United States Constitution. South Dakota, v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); see also Cady v. Dombroski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). This Court has adopted the United States Supreme Court’s reasoning on the issue of inventory searches. State v. Hatfield, 364 So.2d 578 (La.1978); State v. Banks, 363 So.2d 491 (La.1978); State v. Doucet, 359 So.2d 1239 (La.1978); State v. Schmidt, 359 So.2d 133 (La.1978); State v. Gaut, 357 So.2d 513 (La.1978); State v. Rome, 354 So.2d 504 (La.1978); State v. Jewell, 338 So.2d 633 (La.1976). However, once a defendant makes an initial showing at a hearing on a motion to suppress that a warrantless search occurred, the burden of proof shifts to the state to affirmatively show that a search was justified under one of the exceptions to the rule requiring a search warrant. State v. Franklin, 353 So.2d 1315 (La.1977).

While the above cited jurisprudence allows true inventory searches, it does not allow such a search to be used as a subterfuge for rummaging through an ar-restee’s vehicle without a warrant for the primary purpose of seizing evidence. See State v. Rome, supra and State v. Jewell, supra. This Court examines the totality of the circumstances surrounding the search to determine if it was a legitimate inventory search. State v. Hatfield, supra. Some of the factors which this Court has found to be significant in determining that a so-called inventory search was merely subterfuge are: that formal impoundment procedures were not followed; that the search was conducted “in the field”; that a tow truck was not called before commencing the search; that the car owner was not asked for his consent to the search, if his car contained valuables, if he would waive an inventory search, or if he could make arrangements to have someone pick up the vehicle. See State v. Schmidt, supra and State v. Hatfield, supra.

In the instant case we are not satisfied from the record that a true inventory search took place. The search was conducted “in the field” rather than upon impoundment; the car owner was not asked if his car contained valuables or if he could make arrangements to have someone pick up the vehicle. He was not allowed to leave the car locked and parked on the side of the road, as he stated he preferred to do, because it was against police policy; nor did the officer testify that the tow truck was called before the search was made. See State v. Schmidt, supra and State v. Hatfield, supra.

It does appear that impoundment procedures were followed and that a standard inventory form was filled out. However, the officer’s only justification for the “inventory search” and refusal to allow defendant to either leave his vehicle on the side of the road or make other arrangements for its removal was that he acted in accordance with standard police policy. In State v. Jewell, supra; the Court stated:

“The claim is made that the search was conducted pursuant to a departmental regulation. If so, a police inventory procedure of this nature — which permits arresting police officers unlimited discretion and without probable cause to make on-the-spot searches of vehicles at the scene of an arrest — cannot (however standard it may be with a local department) supersede the provisions of our state constitution restricting all agents of government from making unreasonable searches and seizures. Unconstitutional searches cannot be constitutionalized by standardizing them as a part of normal police practice.”

The facts in this case are almost identical with those in State v. Rome, supra. And the law to be applied is the same. The state here has not borne its heavy burden of proving there legitimately existed in this instance an inventory search exception to the warrant requirement.

Decree

Defendant’s motion to suppress should have been sustained. The conviction and sentence are therefore reversed and set aside.

REVERSED.

SUMMERS, C. J., dissents.

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

      . Defendant was sentenced to pay a fine of $300.00 and court costs and to serve a period of four months in the parish jail, which jail term was suspended.

      . While filling out the inventory form the officer did ask defendant if he had any preference concerning the wrecker which was to be called to tow the car away. Defendant stated no preference other than to request that the car be permitted to remain on the side of the road.


text:
    Rebecca DAVIS, widow of Frank Schief, Jr., et al. v. John P. OWEN and New Orleans Public Service, Inc. Donna SCIPIO, wife of/and Lester Nicholas v. NEW ORLEANS PUBLIC SERVICE, INC., and John B. Owens. Jeanette JOHNSON, wife of/and Warren Johnson v. NEW ORLEANS PUBLIC SERVICE, INC., and John B. Owens. Patricia SANDERS and Edna Leon v. NEW ORLEANS PUBLIC SERVICE, INC., et al. Debra ALEXANDER v. NEW ORLEANS PUBLIC SERVICE, INC., and John B. Owens. Pedro CHAMORRA et al. v. NEW ORLEANS PUBLIC SERVICE et al. Johnnie JOHNSON v. John P. OWEN and New Orleans Public Service, Inc.
    Nos. 62552 to 62557 and 62564.
    Supreme Court of Louisiana.
    March 5, 1979.

      Floyd F. Green, New Orleans, for defendants-respondents.
    Warren M. Simon, Jr., John J. McCann, Herman M. Schroeder, New Orleans, for Davis, et al.
    George W. Reese, New Orleans, for Scipio, etc.
    Janine Dingleman, Martzell & Montero, New Orleans, for Jeanette Johnson, etc.
    Daniel J. Caruso, New Orleans, for Sanders, etc.
    Mrs. Bernette J. Johnson, New Orleans, for Alexander.
    David A. Kattan, New Orleans, for Cha-morra, et al.
    Charles R. Maloney, New Orleans, for Johnnie Johnson.
   CALOGERO, Justice.

We granted writs in seven cases consolidated for trial below which arose out of an automobile-bus collision, to review a Court of Appeal decision which reversed district court judgments favorable to the plaintiffs. Johnson v. Owen, 359 So.2d 272 (La.App. 4th Cir. 1978), writs granted in 362 So.2d at 784, 785 and 786.

We recite the basic facts, which are undisputed, as they are alleged by the defendant, New Orleans Public Service, Inc. (hereafter, NOPSI). i

These seven personal injury lawsuits stem from an intersectional collision between a Cadillac automobile and a NOPSI bus. Seven bus passengers received various injuries ranging from mild to moderate in degree. Davis v. Owen, No. 62,552 in this Court, is a suit by the widow and heirs of one Frank Schief which alleges that his death was caused when a blow to his lower right abdominal quadrant sustained during the accident resulted in peritonitis secondary to trauma.

The accident took place at the intersection of Elysian Fields Avenue and North Prieur Street in New Orleans. The bus was on Elysian Fields Avenue travelling in the direction of the lake, following a path in the first moving lane next to the parking lane. The Cadillac automobile was proceeding on North Prieur Street in a downtown direction, toward Gentilly, or away from Canal Street. There were no other vehicles in the vicinity at the time of the accident.

A description of the intersection and area is as follows: Elysian Fields Avenue is a wide neutral ground boulevard. Each side of Elysian Fields Avenue has three moving lanes for traffic and a parking lane; each lane is approximately twelve feet wide. The lakebound and riverbound sides of Elysian Fields Avenue are separated by a neutral ground having a width of sixty-two feet (62'). North Prieur Street is a two-way street for traffic going uptown and downtown. It measures thirty feet in width. There are stop signs facing North Prieur Street before entry to Elysian Fields Avenue. Both streets are asphalt paved.

The collision took place in the lakebound moving lane, immediately adjacent to the parking lane, of Elysian Fields Avenue, in the middle of North Prieur Street. Both vehicles came to rest about four to five feet from impact, the bus still in its lane of traffic. The stop sign which faced the Cadillac was a stop sign on the west or Canal Street side of Elysian Fields Avenue adjacent to the riverbound lanes for traffic on Elysian Fields Avenue. As previously noted, the accident did not take place in the lanes for riverbound traffic. The Cadillac crossed four lanes of the riverbound side of Elysian Fields Avenue (approximately forty-eight feet), an additional width of the neutral ground (another sixty-two feet), and almost three full lanes of lakebound traffic (approximately another thirty to thirty-six feet) before the front end of the NOPSI bus struck the right side of the Cadillac.

The case was tried in the district court without a jury. The trial judge found:

1) The driver of the Cadillac automobile was negligent in failing to yield to the traffic on Elysian Fields Avenue, and in entering the intersection of North Prieur Street and Elysian Fields Avenue without regard to the dangerous situation created.
2) The NOPSI bus driver was also guilty of negligence in failing to use due care while driving his bus on Elysian Fields Avenue, and for failure to bring his bus under control after having seen the automobile in question.
3) The bus driver had ample time to bring his bus under control without the mishap occurring at North Prieur Street and Elysian Fields Avenue.

Accordingly, the trial court entered judgments against John P. Owen, the driver of the Cadillac, and NOPSI, in favor of the respective plaintiffs and in the respective amounts set forth: 1) Rebecca Davis, widow of Frank Schief, Jr., an amount of $141,-590.66; 2) Rose Mary Schief Fox, surviving daughter of Frank Schief, Jr., an amount of $1,000 for loss of love and affection; 3) Eva Lee Schief Lee, surviving daughter of Frank Schief, Jr., an amount of $500 for loss of love and affection; 4) Wallace Calvin Schief, surviving son of Frank Schief, Jr., an amount of $500 for loss of love and affection; 5) Donna Scipio, wife of/and Lester Nicholas, an amount of $2,460.00; 6) Jeanette Johnson, wife of/and Warren Johnson, an amount of $1,500; 7) Edna Leon, an amount of $1,937.65; 8) Patricia Sanders, an amount of $1,214.15; 9) Debra Alexander, an amount of $2,300.00; 10) Victoria Chamorra, wife of/and Pedro Chamorra, $2,330.00 and 11) Johnnie Johnson, $4,060.00.

Defendant NOPSI appealed, taking issue with the trial court finding on liability and, alternatively, with the trial court’s award to the Schief widow of $78,616 for loss of support and $50,000 for her husband’s pain and suffering. By way of answer to the appeal, Schief’s widow and his three major children took issue with the trial court’s awards for loss of love and affection made to them. The Schief children also sought to recover for their father’s pain and suffering the sums for which they had sued. (Each child had sued for $16,666 and identified that sum as one-third of one-half of the amount attributable to their father’s pain and suffering.)

In the Court of Appeal, after a three-judge panel split in favor of reversing the trial court, the case was reargued to a five-judge panel, which by a 3-2 vote, with one judge in the majority concurring, reversed the decision of the trial judge in all seven consolidated cases, rendering judgments in favor of appellant NOPSI and dismissing the plaintiffs’ suits.

Because the Court of Appeal decided the liability issue of the case in NOPSI’s favor it did not have to reach the alternative contentions of defendant challenging the cause of death of Frank Schief and the awards made to the Schief widow for loss of support and for pain and suffering. Likewise, the Court of Appeal did not have to decide the claims of Schief’s widow and children for additional recovery for loss of love and affection, nor the Schief children’s claim for an award recognizing their entitlement to recovery in consequence of their father’s pain and suffering.

We must first decide the matter of NOP-SI’s liability; all plaintiffs in the seven suits consolidated in the trial court urge us to reverse the Court of Appeal on this issue. Because a finding adverse to NOPSI requires that we also direct our attention to the other issues previously mentioned, we begin our discussion of the issues presented in this case by setting forth the basis upon which we determine to reverse the Court of Appeal judgment.

Because plaintiffs were fare-paying passengers on a public conveyance and were injured, defendant NOPSI had the burden of proving that it was without the slightest degree of negligence. As this Court stated in Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963).

“The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case.
# * ^ * * *
A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence.
The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such care.” (citations omitted)

The trial judge concluded that NOPSI failed to carry its burden, that its driver had not exercised the highest degree of care, that he was negligent. NOPSI appealed this finding.

In reviewing the questions of fact and conclusions of fact involved in this suit for damages, the Court of Appeal is mandated to leave undisturbed factual findings of the trial court based upon evidence which furnishes a reasonable factual basis for those findings, unless it finds manifest error. “Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). If, however, the appellate court concludes that the trial court’s factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Bound to impose upon NOPSI the burden of overcoming the presumption that its driver was negligent, the trial court held that NOPSI had failed in that regard. The trial judge determined that the bus driver had not used due care. The dissenting opinion filed in the Court of Appeal acknowledges the applicable standard of appellate review, articulates some of the record support for the trial court’s findings, then sets forth the opinion of the dissenters that under the proper standard of appellate review the trial court judgment on liability adverse to NOPSI should be affirmed. The dissent pointed out that at trial the NOPSI driver testified that the Cadillac stopped after entering the neutral ground, before entering the lakebound roadway of Elysian Fields Avenue upon which the bus was travelling, then commented:

“If one accepts Blackwell’s testimony at the trial that he saw Owen come to a stop in the neutral ground, the question becomes whether or not Blackwell had some duty to see Owen leaving the neutral ground and approaching his path before that point when Owen entered his lane just one and a half to five feet in front of him. Owen traversed 24 feet from his stopped position before Blackwell saw him again even though Blackwell had a clear and unobstructed vision of Owen’s path.
It is axiomatic that any driver who fails to see what is obvious to him is derelict in his duty. On the other hand, when Blackwell saw Owen come to a stop he was entitled to presume that he would remain stopped until the bus passed. But the fact remains that Owen did not remain stopped and from the moment he started to move Blackwell should have, seen that the two vehicles were on a collision course. Since Blackwell insisted that he never attained a speed in excess of fifteen miles per hour it is reasonable to infer that he was negligent in failing to stop before the two vehicles were five feet if not one and a half feet apart.”

The dissenting judges found support for this conclusion that the NOPSI driver’s negligence was a reasonable inference in light of the facts in the testimony of some of the passengers.

The Court of Appeal majority had noted that the bus driver estimated the time between brake application and impact to be a few seconds, had observed that a testifying passenger said that braking commenced “somewhere close about that time [when she reacted to her fellow passengers’ utterances of alarm, looked up and saw the Cadillac]” and had set forth that the witness corroborated the “few seconds” estimate of elapsed time between braking and impact of the bus driver when asked to testify about the elapsed time. From this testimony to which the majority adverts, it infers that the bus driver saw the Cadillac unexpectedly enter the bus path at about the same time that the passengers saw it.

A more reasonable inference from the record in our view is that some of the bus passengers saw the moving Cadillac and appreciated the imminent danger before the bus driver did. Thus, we believe that even accepting as true, for argument’s sake, the questionable fact that the Cadillac was seen by the NOPSI driver to stop in the neutral ground prior to entering the lakebound roadway wherein the collision occurred, there was a reasonable basis for finding that the bus driver failed to see that which he could have and should have seen.

The trial court expressly found a failure on the part of the bus driver to use due care; one element of due care in this case is just this duty, to see that which one could and should see. The Court of Appeal draws inferences from the testimony and concludes that the bus driver complied with his duty to see that which he should have seen. Our review of the record discloses ample evidence from which one can quite reasonably draw a contrary conclusion, one which is consonant with the trial court’s conclusion of failure to exercise due care.

The evaluations and inferences of the Court of Appeal in this case are not unreasonable. Nor, however, are those of the trial judge. In any event, our review of the record satisfies us that there was no manifest error in the trial court ruling, that the trial judge’s finding was not clearly wrong. (Canter v. Koehring, supra; Arceneaux v. Domingue, supra). Therefore, the Court of Appeal exceeded the proper scope of review by substituting its judgment for that of the trial judge. We find it instructive to note that prior to our consideration of this matter, six judges hearing the ease have split evenly; of course, the Court of Appeal is subject to the same limitations which hamper this Court’s consideration of cases it reviews — a “cold” record which presents no opportunity to hear first-hand the testimony of the witnesses or to observe their demeanor in court.

We therefore conclude that the Court of Appeal erred in reversing the trial court judgment on the issue of defendant, NOP-SI’s liability.

Having resolved the liability issue favorably to plaintiffs, we must now decide, in connection with the judgment in the Schief case (Davis v. Owen, No. 62,552) the causation issue and NOPSI’s claims that the trial court’s pain and suffering award and loss of support award are excessive. Additionally, we must review the awards for loss of love and affection made to the widow and the children of Frank Schief, alleged by them to be inadequate, and must decide the question of the children’s entitlement to recover damages in connection with their survival claim.

We have reviewed the record in connection with NOPSI’s argument to ascertain whether Schief’s death was caused by the accident. We conclude that such causation is clearly established. No contrary determination has heretofore been made in this case.

With respect to the award to Schief’s widow of $78,616.00 for loss of support, our study of the record leads us to conclude that there is no reason to reject the trial court’s determination that damages for loss of support should have been in that amount. The basis for NOPSI’s challenge of that award is the fact that Schief faced mandatory retirement. The evidence that the man was active, hard-working and in good health prior to the accident, coupled with the wife’s testimony that he was not going to retire on his sixty-fifth birthday (which he would have celebrated just months after the accident, had he survived), “ . . . not as ambitious as he was”, establishes a satisfactory basis for a substantial award for loss of support premised on the likelihood that other gainful employment would have been pursued.

Insofar as the $50,000 award for Schief s pain and suffering is concerned, we likewise conclude that there was no abuse in the amount awarded and that there is no adequate basis for either increase or reduction of that award. The record reveals that Schief’s physician, who saw Schief on the accident date and who attended him thereafter until his death, testified that Schief complained of pain from the time of the first visit and suffered severe pain during the intervening days which preceded his death. This testimony undermines NOP-SI’s claim that the pain and suffering award of $50,000 is excessive, which is based on the fact that Schief was ambulatory for a few days prior to his admission to the hospital, where he ultimately died. In connection with the pain and suffering award, the apportionment issue raised by the Schief children who seek to share equally with their deceased father’s widow will be discussed hereafter.

Nor, after examination of the record and consideration of the arguments of Schief’s widow and his major children, are we constrained to increase the awards made for loss of love and affection by the trial court. That court specifically noted that it was unimpressed with testimony of the Schief children relating closeness or overwhelming affection between them and their father. While the testimony of Rebecca Davis Schief indicates a relationship with her husband characterized by an abiding love and affection, we cannot say that the trial judge abused his discretion in awarding the $7,500.00 amount for the widow’s loss.

A more troublesome issue is posed with regard to the question of the Schief children’s entitlement to a portion of the $50,000 recoverable for pain and suffering. By virtue of the provisions of Civil Code article 2315, these children, although majors, are granted a right of action to recover, along with the wife of the deceased injured party, sums for their father’s pain and suffering which he could have claimed, had he survived. These children, having asserted their right in the petition for damages filed in the district court, were clearly entitled to recover a portion of the sum attributable to their father’s post-accident pain and suffering, and the trial court’s failure to award them damages was error. Although recognizing her step-children’s entitlement to recover damages for their father’s pain and suffering, Frank Schief’s widow argues that in the event we find (as we have) the $50,000 amount attributable to the pain and suffering endured by the deceased a correct award she should be entitled 1) to half of that award, on the basis that at the time the pain and suffering was endured by Mr. Schief she was his wife and the sum, had it been recovered by him, would have been community property (Civil Code articles 2334 and 2402) and 2) to a virile share (one-fourth) of the remaining one-half of that $50,000 award. The major children of Frank Schief, Jr. argue that the $50,000 award should be apportioned equally, so that each one of them and Rebecca Davis Schief would be entitled to one-fourth of the award for Frank Schief, Jr.’s pain and suffering.

On at least two occasions this Court has determined that survival damages should be shared equally by the survivors, Austrum v. City of Baton Rouge, 282 So.2d 434 (La.1973); McFarland v. Illinois Central Railroad Co., 241 La. 15, 127 So.2d 183 (1961). As we noted in Austrum “[tjhere is nothing in Article 2315 to indicate that there should be any preference among members of the primary class [“ . . . the surviving spouse and child or children of the deceased, or either such spouse or such child or children . . .”] of those to whom actions survive.” 282 So.2d 439. The Fourth Circuit Court of Appeal was correct when it stated in Clark v. Tenneco, Inc., 353 So.2d 418 (La.App. 4th Cir. 1978), writ refused 355 So.2d 266 (La.1978), that “Louisiana courts have refused to apply succession law to affect the determination of beneficiary under art. 2315.” It is only by virtue of the provisions of Article 2315 that a surviving spouse, husband or wife, may share, and then only with the children of the decedent, in sums representing the deceased spouse’s pain and suffering prior to death.

We therefore conclude that it is of no moment that a husband’s tort recovery for pain and suffering falls into the community while that of a wife does not. Neither husband nor wife would be able to recover after the death of the other for pain and suffering prior to death but for Article 2315 which creates the statutory cause of action for surviving spouse and children.

Thus, of the $50,000 award for Frank Schief’s pain and suffering each of the four primary class beneficiaries (the three children of Frank Schief and his widow) is entitled to one-fourth, or $12,500. Judgment will be rendered accordingly.

Decree

For the reasons stated hereinabove, the judgment of the Court of Appeal is reversed and the judgment of the district court is reinstated but amended to reduce the award to the widow which is attributable to Frank Schief’s pain and suffering (her portion of the survival claim) from $50,000 to $12,500 and to increase the award to each of Frank Schief’s three major children by $12,500 (their respective portions of the survival claim). As amended, the judgment of the district court is reinstated.

JUDGMENT OF COURT OF APPEAL REVERSED; JUDGMENT OF DISTRICT COURT AMENDED AND, AS AMENDED, REINSTATED.

SUMMERS, C. J., concurs.

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

      . The award to Rebecca Davis, widow of Frank Schief, Jr., encompasses the following amounts: $5,474.66 for funeral and medical bills; $78,616.00 for loss of future support; $50,000.00 for decedent’s pain and suffering and $7,500.00 for loss of love and affection.

      . There were plaintiffs who were not fare-paying passengers; they were persons having legal claims stemming from their relationships with fare-paying passengers.

      . At a deposition taken six months before trial, the NOPSI driver failed or neglected to mention this stop (admittedly, the direct question had not been asked him). The driver responded at trial to an inquiry seeking to learn if he recalled not having mentioned the Cadillac’s neutral ground stop at the deposition by saying: “I don’t recall not having been asked the question.”

      . We assume for the sake of argument this “fact” which may have been considered unproven by the trial judge who saw and heard the bus driver testify at trial.

      . For example, the testimony of the named testifying passenger-witness referred to in the Court of Appeal opinion is at least susceptible of an interpretation which would support an inference that she and the bus driver saw the Cadillac some time after the other passengers saw it, that is, some time after he should have. Exactly this inference was drawn by the Court of Appeal dissenters from this testimony.

      . Schief sustained a blow to his lower right abdominal area as a result of the collision. When examination indicated the necessity for exploratory surgery, a laparotomy was performed. An apparently traumatized and ruptured appendix, and peritonitis, were discovered. Schief died the day after surgery, ten days after the collision.