author: MARCUS, Justice.

text:
    Philip Glenn STRALEY v. CALONGNE DRAYAGE AND STORAGE, INC.
    Nos. 58850, 58858.
    Supreme Court of Louisiana.
    May 16, 1977.

      J. Fred Patín, Lake Charles, for applicant in No. 58850, respondent in No. 58858.
    Rene A. Curry, Jr., Drury, Lozes & Curry, New Orleans, for defendant-respondent Calongne Drayage & Storage, Inc.
    Lloyd W. Hayes, Adams & Reese, New Orleans, for defendant-respondent (third party), Smith-Willow Distributing Co., Inc. in No. 58850, applicant in No. 58858.
   MARCUS, Justice.

This suit involves a claim for damages for personal injuries sustained by Philip Glenn Straley when an elevator-hoist fell in a building owned by Calongne Drayage and Storage, Inc. and leased to plaintiff’s employer, Smith-Willow Distributing Company, Inc. Plaintiff filed suit against the building’s owner-lessor (Calongne), alleging that his injury resulted from the negligent design of the elevator-hoist involved in the accident. Calongne generally denied plaintiff’s allegations of negligence and alternatively pleaded that the accident was caused by the negligence of Smith-Willow or the contributory negligence of plaintiff. Cal-ongne additionally filed a third-party demand against Smith-Willow for indemnification for any amounts for which it might be cast in judgment under the terms and provisions of the contract for lease of the premises in effect between Calongne and Smith-Willow at the time. Aetna Casualty and Surety Company filed an intervention for workmen’s compensation benefits paid to plaintiff as a result of the accident.

Finding that the accident was caused by the unsafe elevator-hoist designed, constructed and installed by Calongne and that plaintiff’s actions relative to the accident were non-negligent, the trial judge rendered judgment against Calongne and in favor of plaintiff in the amount of $25,000 together with legal interest thereon from date of judicial demand until paid and also in favor of Aetna, intervenor, in the sum of $6,177.95 in reimbursement of compensation paid to plaintiff plus legal interest and for such additional compensation benefits as Aetna may pay to plaintiff in connection with the accident subsequent to trial. All costs, including the expert witness fee of Dr. Gerard L. Davis which was fixed at $150, were assessed against Calongne. Further finding that Smith-Willow’s conduct had not contributed to the accident and that the lease between Smith-Willow and Calongne did not contemplate an assumption of responsibility or agreement of indemnification for damages resulting from the unsafe elevator, the trial judge rendered judgment dismissing Calongne’s third-party demand against Smith-Willow.

From this judgment, Calongne appealed to the court of appeal whereupon a majority of a panel of five judges of the court of appeal, with two judges dissenting, reversed the judgment of the district court, finding that plaintiff failed to prove causation or fault on the part of Calongne and that plaintiffs own negligence was a cause of the accident. Upon separate applications of plaintiff and Aetna, we granted certiorari to review the correctness of this judgment.

On April 11, 1973, nineteen-year-old Philip Straley was employed as a warehouseman for Smith-Willow Distributing Company, Inc. He was stationed atop a balcony or mezzanine inside the Smith-Willow warehouse and was receiving furniture for storage at that level as it was sent up by means of a hoist-type elevator from a loading platform below. The hoist apparatus had been designed by R. Gerard Calongne, president of Calongne Drayage and Storage, Inc., and had been fabricated and installed in the warehouse by Calongne employees several years prior to the lease of the building by Calongne to Smith-Willow. Mr. Calongne first got the idea for the elevator-hoist from a boat hoist operated at a local yacht club. He personally modified the design to serve in his drayage and storage business, apparently without seeking the advice of an architect, engineer or safety consultant. The device consisted of an unenclosed 5' X 5' wooden platform framed at the top and four corners by angle iron and suspended by an open hook from an electrically-powered chain hoist motor mounted near the ceiling of the building. The hoist moved up and down inside an open angle iron superstructure when activated by applying continuous tension to either an “up line” or “down line,” which lines hung from the hoist motor on either side of the superstructure and dangled waist high at the loading platform level.

On the morning of the accident, plaintiff was removing furniture from the hoist on a hydraulic pallet, a relatively new piece of Smith-Willow equipment which rolled on round ball-bearing type wheels. Plaintiff, who had been working for Smith-Willow for only two months, was using the hydraulic pallet on the balcony level for the first time. As he removed a number of loads of furniture from the elevator-hoist, plaintiff experienced difficulty in rolling the pallet off of the hoist and onto the balcony storage level. Approximately one inch below the floor level of the balcony, a small ledge extended out all along the balcony’s edge. Thus, when the elevator-hoist was stopped at balcony level, a small aperture existed between the floor of the elevator and the floor of the balcony. This gap, approximately one inch deep and one inch wide, accounted for the difficulty in rolling the pallet off the elevator. In order to keep the wheels of the pallet from becoming stuck in this gap, plaintiff dropped a slat from an orange crate into the aperture. The piece of wood, only one-quarter inch thick, one inch wide and two and one-half feet long, was dropped into the aperture so that one of the one-quarter inch edges rested on the recessed ledge extending along the balcony’s edge and the other one-quarter inch edge created a surface between the floor of the elevator and the floor of the balcony. Plaintiff testified that the insertion of the slat in this fashion filled up the gap just enough to prevent the pallet wheels from becoming lodged in the opening. After unloading, plaintiff would remove the slat as he returned the hoist to the loading platform for more freight. Plaintiff had used this procedure without incident to remove furniture from the hoist on the morning of the accident disputed herein. Just prior to the occurrence of the accident, plaintiff had removed a loaded pallet from the hoist and started it downward. Since the hoist moved very slowly and continuous tension on the “down line” was necessary to keep it in motion, plaintiff secured the line to a nearby switch (as he had done on a number of other occasions) so that he could unload the pallet while the elevator was descending and be ready to receive another load when the hoist was sent up again. When the elevator had descended about six inches, plaintiff dropped to one knee to remove the orange crate slat. Suddenly the elevator plummeted down to the loading platform fifteen feet below. Plaintiff, who fell immediately behind it, found himself lying face up spread eagle across the top of the hoist with a badly broken arm and a lacerated head. The open hook from which Calongne had designed the elevator to hang had slipped out of the yoke on top of the hoist. Plaintiff was unable to account for why or how the hoist became disassociated from the hook. He remembered only that just before the elevator fell, he had heard a squeaking sound.

It is clear from the record that, when Calongne leased the warehouse building to Smith-Willow, all parties were aware that Smith-Willow intended to use the balcony level for storing furniture and would therefore be using the hoist apparatus to move freight up to that level. In fact, Calongne had similarly used the hoist to move appliances and heavy machinery up to the balcony. Although Mr. Calongne apparently issued instructions to his own employees prior to the lease that the elevator was to be operated only from the loading platform level, this instruction was never communicated to Smith-Willow or any of its employees. The owners of Smith-Willow were merely shown how to operate the lift by pulling the lines and told that no personnel should ride the hoist. There were no written or oral instructions concerning the use of the device; neither were there any oral warnings concerning dangers which might be encountered in operating the hoist. It is undisputed that plaintiff at no time received instructions inconsistent with his use of the apparatus on the day of the accident.

The primary issues presented for our consideration herein are (1) whether Cal-ongne Drayage and Storage, Inc. is liable to plaintiff for damages for the personal injuries sustained by him as a result of the accident, and (2) if so, what is the proper quantum of damages to be awarded?

La.Civil Code art. 2315 provides in relevant part:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

La.Civil Code art. 2316 further directs:

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.

Under these articles, the elements of a cause of action are fault, causation and damage. Pence v. Ketchum, 326 So.2d 831 (La.1976); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Weiland v. King, 281 So.2d 688 (La.1973).

This court has held that for alleged wrongful conduct to be actionable negligence it must first be found to have been a cause in fact of the resulting harm. Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976); Hill v. Lundin & Asso., Inc., 260 La. 542, 256 So.2d 620 (1972). Defendant’s conduct must be a necessary antecedent of plaintiff’s harm but it need not be the sole cause contributing to the harm. Pence v. Ketchum, supra. If the plaintiff can show that he probably would not have suffered injury absent defendant’s conduct, he has carried his burden of proof relative to cause in fact. Shelton v. Aetna Casualty & Surety Co., supra. The trial judge in his written reasons for judgment concluded:

The primary cause of this accident was the design, construction and installation of the home-made elevator or hoist by the defendant Calongne. It had no safety factors of any kind built into it. It was dangerous per se. .

It is manifest that the design of the elevator calling for suspension by an open hook rather than a closed hook or other device was a cause in fact of the accident. Absent such design, the elevator would not have become disassociated from the hoist motor cables and neither it nor plaintiff would have fallen.

Having determined that the hoist design employed by Calongne was a cause in fact of the accident, we must next consider whether or not Calongne breached a legal duty to protect against the particular type of risk involved. Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. United States Fidelity and Guaranty Co. v. State of Louisiana through the Department of Highways, 339 So.2d 780 (La.1976). In all cases, duty can be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Pence v. Ketchum, supra. Accordingly, we have stated that the proper test to be applied in determining a landowner’s liability under articles 2315 and 2316 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others. Shelton v. Aetna Casualty & Surety Co., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). In the instant case, Calongne Drayage and Storage, Inc. is more than simply the owner of the premises where the injury occurred. In addition, the president of Calongne undertook to design and install a piece of equipment which he knew would be used by his own employees and subsequently by the employees of the lessee in hauling freight up to the building’s balcony storage level. In our view, when an owner of commercial property undertakes to design and install on his property equipment which he knows will be used by others in the course of their employment, he has an obligation to use reasonable care to assure that the design he adopts does not present discernible serious safety hazards. If a design does present unreasonable hazards within the range of the equipment’s foreseeable uses, the designer-landowner has a further duty to either provide adequate warnings or safety devices to guard against those hazards. The evidence demonstrates that defendant did not conform to this standard of conduct which is imposed to protect against the very type of risk and harm encountered in this case. Mr. Calongne admitted in his testimony at trial that it would have been safer to suspend the hoist from a closed hook ,in order to avoid its coming loose from the lift frame. He further acknowledged that it would have been a simple matter to do so but that hp had simply not thought of it. In sum, Mr. Calongne did not give due consideration to the safety aspects of the open hook design and incorporated in the hoist neither safety devices nor warnings of any kind. Having breached a legal duty of reasonable care, Calongne is at fault within the meaning of Louisiana Civil Code articles 2315 and 2316.

Defendant contends that plaintiff’s own actions in operating the hoist constituted contributory negligence. The party relying upon contributory negligence has the burden of proving it. Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own safety and protection, that standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.1973). In the absence of any warnings or instructions to the contrary, we cannot say that plaintiff’s actions in operating the elevator-hoist were unreasonable. He had used the same procedure in the past without incident. The hoist had never to his knowledge become disassociated from the open hook at or near the balcony level. Accordingly, we do not find that plaintiff’s right of recovery is barred by contributory negligence.

The next issue for our consideration is the amount of damages for personal injuries sustained by Philip Glenn Straley as a result of the accident. The record establishes that plaintiff received a laceration of the scalp which was sutured and a severe compound fracture of both bones in the left forearm. The attending physician and orthopedic expert, Dr. Gerard L. Davis, testified that plaintiff was hospitalized for six days, during which time surgery was performed in order to insert a six to eight inch pin into the larger of the two bones, the radius. A metal plate was also used to hold the ends of the bone together. The smaller bone, the ulnar, was so badly broken that it could not be joined and its condition is clinically classified as disunion. The accident has resulted in a 5-10% impairment of normal use of the arm, and Dr. Davis does not recommend that plaintiff return to any work requiring heavy lifting or stress on the arm. The injury is expected to cause continuing intermittent discomfort and surgery has left plaintiff with disfiguring scars on his forearm. The trial judge considered $25,000 to plaintiff, plus intervenor’s claim for compensation benefits paid and to be paid as a result of the accident, to be a fair and adequate award for plaintiff’s pain and suffering. We agree and find no abuse of discretion in the amount fixed as damages for personal injuries. La.Code Civ.P. art. 1934(3); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974).

Finally, we note that Calongne Drayage and Storage, Inc. filed a third-party demand seeking indemnification from Smith-Willow under the terms and provisions of the written lease between the parties. The trial judge found in favor of the third-party defendant (Smith-Willow) and against Cal-ongne on this claim. Calongne appealed from this judgment as well as from the judgment in favor of the plaintiff in the principal demand. Inasmuch as the court of appeal ruled in favor of Calongne on the principal demand finding no liability to Philip Glenn Straley, it did not reach the question of Calongne’s right to indemnification from Smith-Willow under its third-party demand. Hence, this issue was not resolved in the court of appeal. Calongne had no cause to apply for relief to this court concerning its third-party demand against Smith-Willow which had not been adjudicated in the court of appeal. As a result of our reversal of the judgment of the court of appeal in the principal demand, the third-party demand is now in a posture for adjudication. Accordingly, we consider it appropriate to remand this case to the court of appeal for its determination of the merits of Calongne’s third-party demand against Smith-Willow.

DECREE

For the foregoing reasons, the judgment of the court of appeal in the principal demand is reversed and set aside, and the judgment of the district court in favor of plaintiff, Philip Glenn Straley, and interve-nor, Aetna Casualty and Surety Company, and against defendant, Calongne Drayage and Storage, Inc., is reinstated; the case is remanded to the court of appeal to determine the merits of the third-party demand of Calongne Drayage and Storage, Inc. against Smith-Willow Distributing Co., Inc.

      . 337 So.2d 887 (La.App. 4th Cir. 1976).

      . 341 So.2d 405 (La.1977).

      . See Hall v. Hartford Accident & Indemnity Co., 278 So.2d 795 (La.App. 4th Cir. 1973), writ refused, 281 So.2d 753 (La.1973).

      . Cf. McCoy v. Pacific Coast Fire Insurance Co., 248 La. 389, 178 So.2d 761 (1965).


source: Caselaw Access Project

license: Public Domain

text:
    T. H. DAVIDGE et al. v. Phillip MAGLIOLA.
    No. 59002.
    Supreme Court of Louisiana.
    May 16, 1977.

      Arthur W. Macy, Macy, Kemp & McIntyre, Autley B. Newton, Newton & Baham, Hammond, for plaintiff-applicant.
    Rodney C. Cashe, Mentz & Cashe, Hammond, for defendant-respondent.
   MARCUS, Justice.

Plaintiffs, David Davidge and T. H. Davidge, instituted a possessory action against defendant, Phillip Magliola, claiming possession of certain immovable property located in Tangipahoa Parish, Louisiana. Defendant filed an exception of ten years acquisitive prescription thereby asserting title in himself and converting the suit into a petitory action. On December 30, 1975, judgment was rendered irnfavor of defendant sustaining his exception of prescription and declaring him owner of the property in question. On plaintiffs’ petition, an order of suspensive appeal was granted on January 23, 1976. The order set the return day of the appeal at March 24, 1976 and fixed the appeal bond at five hundred dollars. On February 6, 1976, plaintiffs furnished the appeal bond and in addition paid to the clerk of the trial court the filing fee due to the clerk of the appellate court for lodging the appeal as well as certain listed costs due to the clerk of the trial court for preparation of the record on appeal exclusive of the cost of the transcript. It was indicated on the face of the clerk’s bill that a separate bill for the transcript cost would be forwarded by the court reporter. On application of the deputy clerk preparing the record of appeal in which it was represented that the transcript would not be completed by the return day (March 24), the trial judge timely ordered the return day extended to May 21,1976. The transcript was completed by March 29 and the court reporter mailed a bill for her fee to the attorney representing David Davidge while counsel for T. H. Davidge received no notice of the fee for the transcript. When payment of the fee was not forthcoming, the court reporter refused to file the transcript with the clerk of the trial court. Not until forty days after the extended return day (June 30) was the complete record including the transcript of evidence adduced at trial lodged in the appellate court. Defendant filed a motion to dismiss the appeal on the ground that the failure of plaintiffs to pay the court reporter her fee for the transcript resulted in the record not being timely filed in the court of appeal prior to the extended return day. On September 20, 1976, the court of appeal dismissed the appeal. We granted certiorari to review the correctness of this ruling.

The law favors appeals. Thus, they are to be maintained unless a legal ground for dismissal is clearly shown. Howard v. Hardware Mutual Company, 286 So.2d 334 (La.1973); Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970); Favrot v. Favrot, 252 La. 192, 210 So.2d 316 (1968). In line with this policy, La.Code Civ.P. art. 2161 provides in pertinent part:

An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant.

La.Code Civ.P. art. 2126 provides that:

The appellant shall pay to the clerk of the trial court, not later than three days prior to the return day or extended return day, all costs of preparing the record on appeal, and the filing fee required by the appellate court to lodge the appeal. (Emphasis added.)

Which fees are encompassed within the phrase “all costs of preparing the record on appeal” are set forth in La.R.S. 13:4445 which in pertinent part provides:

A. Not later than three days before the return day, or extended return day, of the appeal fixed by the trial court, the appellant shall pay to the clerk of the trial court:
(1) The fees to be due the clerk of the appellate court for filing the record of appeal, under the applicable provision of R.S. 13:126 or R.S. 13:352; and
(2) The cost of transmitting the record of appeal to the clerk of the appellate court and all other fees due the clerk of the trial court for preparing the record of appeal.

Among the fees exacted for preparing the record on appeal which the appellant is obligated to pay in accordance with the above provisions is the cost of transcribing the trial testimony since the transcript is an integral and essential part of the appellate record.

While appellant has the obligation to timely pay the clerk of the trial court all costs of preparing the record on appeal as well as the filing fee required by the appellate court to lodge the appeal (La.Code Civ.P. art. 2126), the statutes also impose two obligations on the clerk of the trial court, the first of which is to prepare the record on appeal. La.Code Civ.P. art. 2127. The other duty imposed on the clerk of the trial court is set forth in La.Code Civ.P. art. 2125, which states:

The return day of the appeal shall be fixed by the trial court at not more than sixty days from the date the appeal is granted, but may be extended by the trial court for sufficient cause, on the application of the clerk, or of the deputy clerk preparing the record of appeal. (Emphasis added.)

This provision clearly imposes a duty on the clerk to apply to the trial court for extensions of the return day with the court then determining whether sufficient cause exists under the circumstances to justify an extension, for the responsibility of weighing the merits of extending the return day rests with the court, not the clerk of court. Consequently, where an appellant fails to advance all costs of preparing the record on appeal (including the cost of the transcript) and the filing fee required by the appellate court to lodge the appeal, the clerk is obligated to seek an extension of the return day. Upon this application, the trial court may grant the extension if sufficient cause has been demonstrated for the appellant’s failure to pay the fees or it may refuse any further delay. Non-compliance with this duty is fault attributable to the clerk of court and cannot prejudice an appellant’s right of appeal. To the extent that our former decision of Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970) is inconsistent with our views expressed herein, it is overruled.

Applying the aforesaid principles to the instant case, when appellants failed to advance the cost of the transcript within the delay designated by La.Code Civ.P. art. 2126 and La.R.S. 13:4445, they violated an obligation imposed on them by these provisions. However, this breach on their part did not relieve the clerk of the trial court of his obligation to seek an extension of the extended return day from the trial court. His failure in this regard precluded judicial determination of the merits of extending the extended return day to afford appellants an opportunity to pay the cost of the transcript. This neglect is not imputable to appellants. Therefore, we consider that the appeal was improperly dismissed. La.Code Civ.P. art. 2161.

DECREE

For the reasons assigned, the judgment of the court of appeal dismissing this appeal is reversed and the case is remanded to that court for consideration of the merits. The costs in this court are taxed against respondent. The assessment of all other costs will await the final outcome of the appeal.

SANDERS, C. J., concurs in the result.

DIXON, J., concurs.

DENNIS, J., concurs, being of the opinion that fees due the court reporter were not fees due the clerk of court for preparing the record under R.S. 13:444(A)(2).

      . La.App., 339 So.2d 418.

      . La., 341 So.2d 418.

      . Subsequent to the present proceedings in the courts below and therefore not applicable here, La.Code Civ.P. art. 2126 was amended by La. Acts 1976, No. 708, § 2, eff. Oct. 1, 1976, to read as follows:
      The appellant shall pay to the clerk of the trial court, not later than twenty days after the granting of the order of appeal, all costs as estimated by said clerk for the preparation of the record on appeal, and the filing fee required by the appellate court to lodge the appeal.
      The twenty-day time limit may be extended once for not more than twenty additional days by the district judge. Such extension shall be in written form.
      Any difference between the estimated costs and the actual costs shall be remitted by the clerk of the trial court or paid by the appellant, as the situation may require, not later than three days prior to the return day or extended return day.

      .La.R.S. 13:4445(A) was amended by La.Acts 1976, No. 708, § 3, eff. Oct. 1, 1976 (not applicable here) as follows:
      A. Not later than twenty days after the granting of the order of appeal, the appellant shall pay to the clerk of the trial court:
      (1) The fees as estimated by the clerk of the trial court to be due the clerk of the appellate court for filing the record of appeal, under the applicable provision of R.S. 13:126 or R.S. 13:352; and
      (2) The cost of transmitting the record of appeal to the clerk of the appellate court and all other fees due the clerk of the trial court for preparing the record of appeal.
      The twenty-day time limit may be extended once for not more than twenty additional days by the district judge. Such extension shall be in written form.
      Any difference between the estimated costs and the actual costs shall be remitted by the clerk of the trial court or paid by the appellant, as the situation may require, not later than three days prior to the return day or extended return day.

      . La.Code Civ.P. art. 2127 provides in pertinent part:
      The clerk of the trial court shall have the duty of preparing the record on appeal.

      . La.Code Civ.P. art. 2125 was amended by La.Acts 1976, No. 426, § 2, eff. Oct. 1, 1976 (not applicable here) to read as follows:
      The return day of the appeal shall be fixed by the trial court at not more than sixty days from the date the appeal is granted on the application of the clerk, or of the deputy clerk preparing the record of appeal. The trial court may grant only one extension of the return day for the appeal of a civil suit, and such extension shall be not more than thirty days. A copy of said extension shall be filed with the appellate court. Subsequent extensions of the return day shall be granted by the appellate court for sufficient cause.
      La.Code Civ.P. art. 2125.1 was added by La. Acts 1976, No. 708, § 1, eff. Oct. 1, 1976 (not applicable here) to read as follows:
      When a subsequent extension of the return day is granted by the appellate court in accordance with the provisions of Article 2125, notice thereof shall be given by mail by the clerk of the trial court to counsel of record of all parties, and to parties not represented by counsel. The failure of the clerk of the trial court to mail such notice does not affect the validity of the appeal, nor does any error or defect that is not imputable to the appellant affect the validity of the appeal.

      . La.R.S. 13:961 provides in pertinent part:
      Except in pauper cases, the payment of the fees shall be made primarily by the plaintiff, immediately upon the transcription of such evidence, and the court reporter shall not be required to file the transcript with the clerk before payment. Should the plaintiff fail or refuse to make such payment, the defendant or any other party to the suit may make the same and have it assessed as costs. No fee shall be charged for taking evidence on bills of exception, motions, or other pleadings in criminal cases. All copies required to perfect appeals shall be furnished at no additional cost.

      . Under La.Code Civ.P. art. 2088, the trial court retains jurisdiction after the granting of the order of appeal and the timely filing of the appeal bond to “extend the return day of the appeal, as provided in Article 2125.”

      . It was stipulated by all counsel in oral argument before this court that the clerk did not apply to the trial court for an extension of the extended return day (May 21).


author: DENNIS, Justice. DIXON, Justice

text:
    STATE of Louisiana v. Miles Anthony WILLIAMS.
    No. 58706.
    Supreme Court of Louisiana.
    May 16, 1977.

      Gary R. Steckler, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Thomas Robert Shelton, Lafayette, for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Miles Anthony Williams, was charged by bill of information with the attempted murder of Kenneth Ryder, La.R.S. 14:27 and La.R.S. 14:30, and pleaded not guilty and not guilty by reason of insanity. A jury of twelve found him guilty as charged and the court sentenced him to serve twenty years at hard labor. On appeal, defendant relies upon nineteen assignments of error for reversal of his conviction and sentence. We affirm.

ASSIGNMENT OF ERROR NO. 1

The victim of the alleged offense, Kenneth Ryder, was a police officer. During the voir dire examination of prospective jurors, defense counsel requested that Ryder, a state witness, be excluded from the courtroom. The State argued that Ryder’s presence during voir dire would be helpful in ascertaining whether he was known to any of the prospective jurors, and further asked that he be permitted to remain throughout the trial in order to assist the prosecutor in “putting together the sequence of events.” Defense counsel did not attempt to counter these arguments but stated that he might make some rebuttal at the time of his motion to sequester the witnesses. The trial court then denied the defense motion to remove Ryder.

The defense invoked the rule of sequestration after the jury had been em-panelled but made no objection to Ryder’s exemption from the rule. Thus, although defendant assigns as error the judge’s ruling permitting Ryder to remain in court during the voir dire examination and throughout the trial, no timely objection was entered to the court’s ruling exempting Ryder, and hence the issue is not properly presented for our review. La.C.Cr.P. art. 841. Nevertheless, we conclude that defendant was not prejudiced by Ryder’s presence at each stage of the proceedings.

Louisiana Code of Criminal Procedure article 764 provides the rule for the sequestration of witnesses:

“Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.”

The often repeated purpose of the rule is to prevent witnesses from being influenced by prior testimony and to strengthen the role of cross-examination in developing the facts. State v. Johnson, 343 So.2d 155 (La.1977); State v. Bias, 337 So.2d 426 (La.1976), and cases cited therein. The trial judge may, however, modify his exclusion order “in the interest of justice,” and should he choose to do so his ruling will not be disturbed on appeal absent an abuse of discretion. State v. Griffin, 329 So.2d 693 (La.1976); State v. Brevelle, 270 So.2d 852 (La.1973); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971).

Clearly, the purpose of the sequestration rule was not endangered by Ryder’s attendance during the voir dire examination of prospective jurors and before any testimony was taken in the case. The record in this case reflects no error in denying defense counsel’s motion to have Ryder removed at that time.

Although we are not persuaded that it was “in the interest of justice” to allow the prosecuting witness to remain in the courtroom during the course of the trial, we do not find that defendant was prejudiced thereby. The two state witnesses who preceded Ryder in testifying recounted the events of the armed robbery committed by defendant which caused the officer to be summoned to the scene. They were not witnesses to the attempt upon Ryder’s life and there was little overlap between their testimony and his, which focused upon the events transpiring after he intercepted defendant in flight. Thus, the salient portions of Ryder’s testimony were based solely upon facts within his own knowledge and could not have been influenced by the introductory statements of the first witnesses. Ryder was not called on rebuttal. Therefore, we conclude that defendant was not harmed by the witness’ exclusion from the sequestration order.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant complains that the court improperly restricted the scope of his voir dire examination of prospective jurors by refusing to allow him to propound the following question:

“Now, the Court will also instruct you as to the definition of an insane mind. Will you have any difficulty in following that law; that persons of insane mind, are those who do not enjoy the exercise and use of reason; after they have arrived at an age at which they ought, according to nature, to possess it. Whether the defect results from nature or accident.”

The definition of insanity suggested by the question was taken directly from Louisiana Civil Code article 31, relating to “Insane Persons.” The court sustained the prosecutor’s objection that this was an incorrect statement of the criminal law of insanity and advised defense counsel to rephrase his question.

Parties must be afforded wide latitude in the conduct of their voir dire examination; pertinent inquiries which either might show grounds for a challenge for cause or which will enable counsel to make intelligent use of their peremptory challenges should be permitted. State v. Monroe, 329 So.2d 193 (La.1976); State v. Brumley, 320 So.2d 129 (La.1975); State v. Jones, 282 So.2d 422 (La.1973). However, Article 786 of the Louisiana Code of Criminal Procedure vests the trial judge with discretion to regulate the scope of the examination and that discretion is not abused when he disallows an improper question. See, State v. Clark, 325 So.2d 802 (La.1976).

The question at issue here purported to probe the jurors’ ability to accept the law as given to them by the court, see, La.C.Cr.P. art. 797(4), and would have been appropriate had defense counsel correctly represented the law. See, State v. Brumley, supra. This he did not do, but rather attempted to inject into the proceedings a definition of insanity not pertinent to the issues at hand. The law defines mental incompetence differently for different purposes. Compare, La.C.C. art. 31, La.C.Cr.P. art. 641 and La.R.S. 14:14. See also, State v. Glover, 343 So.2d 118 (La.1977). The definition embodied in Civil Code article 31, which defense counsel incorporated into the subject question, might have been applicable to a determination of defendant’s capacity to enter into a contract, see, Symposium, Contractual Incapacity in the Louisiana Civil Code, 43 Tul.L.Rev. 1093, 1099 (1973), but had no bearing upon the issue of defendant’s criminal responsibility. Criminal responsibility is not negated merely by the existence of a mental disease or defect; the disease or defect must be of such a nature as to render the offender “incapable of distinguishing between right and wrong with reference to the conduct in question”. La.R.S. 14:14.

Through earlier questioning, defense counsel had ascertained whether the jurors were able to accept and apply the prevailing “right or wrong” test. We find no error in the court’s refusal to allow a further question which was likely to confuse or mislead the jurors as to the applicable standard in criminal cases.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

In order to depict for the jury the manner in which the crime occurred, the State asked Officer Ryder to step down from the stand and physically reenact his encounter with defendant (the prosecutor, directed by the witness, substituted for defendant), during which the officer was shot several times. At the conclusion of this exhibition, defense counsel objected that the procedure was inflammatory and prejudicial; he assigns the overruling of that objection as error.

Of dramatic communication, Wigmore has said:

“Man does not communicate by words alone, and it may occur that words become inferior to action as a mode of communicating a correct impression of a scene observed. Certainly, in an appropriate case, it is proper and customary for the trial court in its discretion to sanction a departure from the ordinary or verbal medium and permit the witness to make clearer his own observed data by representing them in gesture, dumb-show, or other dramatic mode. Whether it is more useful to do so must depend much on the circumstances of the case. The only general and disfavoring consideration to be noted is that the witness’ dramatic expression may be calculated to give unfair emphasis and create improper emotional effects, but this can rarely occur.” 3 Wigmore, Evidence § 789 (Chadbourne Rev. 1970) (footnotes omitted).

Where, as here, verbal explanation would suffice, it is the favored mode of communication. With all due respect to Professor Wigmore, dramatic expression calculated to give unfair emphasis and create improper emotional effects can easily occur in criminal cases. However, we note that defendant did not object in time for the court to intervene and put a stop to the exhibition. Additionally, the record reflects that the witness made no attempt to appeal to the emotions of the jury but merely illustrated the relative positions of defendant and the witness during the shooting. Therefore, we conclude that defendant was not prejudiced by the display.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant complains that the court erred in admitting certain items into evidence without requiring the State to establish the chain of custody. The basis of the complaint is that the officer who received the evidence at the crime lab was not produced in court.

In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), we stated:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The 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 is offered in evidence.
“The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case. A preponderance of the evidence is sufficient, [citations omitted]
“The lack of positive identification goes to the weight of the evidence, rather than to its admissibility. Ultimately, connexity of physical evidence is a factual matter for determination by the jury, [citations omitted] 256 So.2d at 608.

In the instant case, Sergeant Paul Stelly testified that he recovered the disputed items from the scene of the crime, tagged them, enclosed them in plastic bags, and placed them temporarily in the trunk of his car beforehand delivering the evidence to Ralph Huval at the Acadiana Criminalistics Laboratory. Travis Owen, the director of the crime lab who analyzed the evidence, stated that he kept it in his custody until it was brought to trial. He also identified Ralph Huval’s signature on the evidence envelope, which indicated that Huval had received it at the crime lab. In addition, Sergeant Stelly made a visual identification of the evidence as being that which he had retrieved from the scene of the crime.

This testimony established the probability that the crime scene evidence was the same as that introduced, and the failure of Ralph Huval to testify went to the weight, rather than to the admissibility of the evidence. See, State v. Brown, 337 So.2d 484 (La.1976).

ASSIGNMENT OF ERROR NO. 5

After a photograph depicting the site of the crime had been admitted into evidence and exhibited to the jury, defendant complained that he had been prejudiced by the jurors’ inspection of the label on the reverse side of the exhibit which in addition to other identifying information included: “OFFENSE: att. murder; NAME: Kenneth Ryder.”

The label communicated nothing more than the bill of information read to the jury at the outset of the trial, and was clearly intended only to identify the photograph with the case in which it was to be used. We fail to see how defendant was prejudiced by the exhibition of the photograph and the printed material on its reverse side to the jury.

There is no merit in this assignment.

Assignment of error number six has been abandoned.

ASSIGNMENT OF ERROR NO. 7

Defendant asserts that the trial court erred in allowing the State to introduce into evidence certain oral inculpatory statements. He argues that he received inadequate and untimely notice of the State’s intention to use the statements and that because he lacked the mental capacity to make an intelligent waiver of his constitutional rights, the statements were not voluntary.

Defendant’s complaint regarding the alleged defects in the State’s notice of intent is not properly before us since no objection was made on this ground either at the time notice was given or at the time the statements were introduced. La.C.Cr.P. art. 841; State v. Schamburge, 344 So.2d 997 (La.1977). However, defendant’s contentions are meritless. The notice was timely given prior to the State’s opening statement, La.C.Cr.P. art. 768, State v. Clark, 340 So.2d 1302 (La.1976), and sufficiently apprised defendant of the specific statements involved. See, State v. Sneed, 316 So.2d 372 (La.1975).

Defendant’s second argument relates to his alleged inability to waive his constitutional rights intelligently. At trial the State laid the following predicate to the introduction of the inculpatory statements. Sergeant James Romero testified that after defendant’s arrest and while en route to the police station, he advised defendant of his Miranda rights. When asked whether he understood his rights, defendant responded, “Yes.” Sergeant Romero then asked defendant “why he had shot the policeman” and defendant answered, “I shot him because he shot at me.” The officer claimed that he did not exercise any form of duress upon defendant to induce him to make a statement.

On cross-examination, however, Sergeant Romero admitted that he had known defendant for approximately two years and “had a feeling” that defendant had received treatment for a mental disorder but did not know definitely whether or not he had. Because the officer suspected defendant had a mental disorder, the defense argues, the State failed to carry its heavy burden of proving that the defendant knowingly and intelligently waived his constitutional rights as required by Miranda and Art. I, § 13 of La.Const. of 1974. However, interrogating officers are entitled to rely upon reasonable appearances of understanding and consent. State v. Welch, 337 So.2d 1114 (La.1976).

In the absence of a clearer indication that the defendant’s reasoning capacity was impaired, other than a mere “feeling” of the policeman, we find that under the circumstances Sergeant Romero was entitled to rely on the defendant’s apparent knowing and willing waiver of his rights.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 8, 9 and 11

These assignments variously relate to defendant’s difficulty in placing his medical history before the jury in connection with his insanity defense.

Defendant’s sole witness at trial was Dr. William E. McCray, a member of the sanity commission appointed to examine defendant in October of 1973. After Dr. McCray stated that he had had access to medical reports of defendant from the Evangeline Guidance Center and the Acadi-ana Mental Health Unit, defense counsel, attempting to lay the foundation for an expert opinion that defendant was insane at the time he committed the offense, asked the doctor to recite the defendant’s medical history from those reports. Additionally, defense counsel attempted to introduce the reports directly into evidence as exhibits. The court sustained the State’s objections to both proffers on the grounds that the contents of the reports were hearsay.

The contents of the reports which were not prepared by the witness himself were indeed hearsay and as such were inadmissible, La.R.S. 15:434 and La.R.S. 15:463, unless offered in compliance with the hospital records exception to the hearsay ban. La. R.S. 13:3714.

An exception to the hearsay rule established by La.R.S. 13:3714 allows the introduction of certified copies of hospital records:

“Whenever a certified copy of the chart or record of any hospital in this state, signed by the director, assistant director, superintendent or secretary-treasurer of the board of administrators of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.”

Because the records were not admitted and are therefore not included in the record before us, we do not know whether the records offered complied with the statutory requirements, an essential prerequisite to their admission. See, State v. Trahan, 332 So.2d 218 (La.1976). However, the trial judge did not base his ruling on the fact that the necessary formalities were not followed and we can only conclude that he was persuaded by the State’s argument that the records were incompetent hearsay, without adverting to the statutory exception. In this conclusion, we find that the trial judge was in error.

However, we find that the error was not prejudicial to the defendant. Although the jury was not allowed to view the reports or to hear the witnesses read verbatim passages from them, both the defense and state medical experts were permitted to refer freely to the facts in the reports in stating their understanding of the defendant’s past medical history and explaining how this history related to their opinions expressed at trial.

Dr. McCray testified: that defendant had for an extended period of time experienced hearing voices in his head and hallucinating; that he was treated for this affliction at the Evangeline Area Guidance Center and subsequently, in 1963, at the state hospital at Mandeville; that more recently, defendant had been a patient at the Acadia-na Mental Health Unit but has discontinued treatment there about a year before Dr. McCray’s examination because he “was tired of taking them pills;” and that during the course of his treatment at various facilities, he had been diagnosed by several doctors as schizophrenic.

Dr. McCray diagnosed defendant’s illness as schizophrenic reaction and chronic brain syndrome. He concluded on the basis of defendant’s medical history and his own observations that when defendant was not on medication, as he was not at the time of the offense, he was psychotic and unable to distinguish between right and wrong.

Defendant complains that the court permitted the State’s expert, Dr. James Blackburn, to testify regarding defendant’s medical history, which he had obtained from reviewing medical records, although Dr. McCray had been prevented from doing so.

The record reflects that the court extended to Dr. Blackburn the same privilege which had been accorded to defendant’s expert: he was allowed to refer to the records as a basis for his expert medical opinion. Moreover, Dr. Blackburn gave approximately the same history of defendant’s medical treatment as had been related by Dr. McCray; his testimony on this point was corroborative of rather than contradictory to that of defendant’s expert.

There was no dispute at trial as to the fact of defendant’s chronic mental illness. Like Dr. McCray, the State’s medical expert testified that deféndant was suffering from a form of schizophrenia and that his judgment was severely impaired. The two experts differed only in their judgments regarding defendant’s ability to distinguish between right and wrong at the time of the offense. Defendant does not specifically describe any information that was denied the jury or show how the direct introduction of or reading from the medical records could have shed any light upon this controversy. Therefore, it does not appear that defendant was prejudiced because of his inability to introduce the medical records or have them read to the jury.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant argues that the court erred in sustaining the State’s objection to the following question, asked of Dr. McCray: “Are you of the opinion that [the defendant] needs further treatment?” The court ruled that the question was immaterial and the witness was not permitted to answer. Defendant contends that the information sought was crucial to the jury’s understanding of the consequences of a verdict of not guilty by reason of insanity.

The legal effect of an acquittal on ground of insanity in a non-capital felony case is prescribed by Louisiana Code of Criminal Procedure article 654:

“When a defendant is found not guilty by reason of insanity in any other felony case, the court shall remand him to the parish jail or to a private mental institution approved by the court and shall promptly hold a contradictory hearing at which the defendant shall have the burden of proof, to determine whether the defendant can be discharged or can be released on probation, without danger to others or to himself. If the court determines that the defendant cannot be released without danger to others or to himself, it shall order him committed to a proper state mental institution or to a private mental institution approved by the court for custody, care, and treatment. If the court determines that the defendant can be discharged or can be released on probation, without danger to others or to himself, it shall either order his discharge, or order his release on probation subject to specified conditions for a fixed or an indeterminate period.”

In State v. Babin, 319 So.2d 367 (La.1975), we held that the consequences of a verdict of not guilty by reason of insanity, not commonly understood by the layman, must be explained to the jury upon defendant’s or the jurors’ request. We were concerned that in the absence of clarifying instructions the jury would falsely assume that a verdict of not guilty by reason of insanity would immediately free the defendant and would refuse to return such a verdict even if it were warranted by the evidence.

The determination whether a defendant is to be released or institutionalized after a verdict of not guilty by reason of insanity is to be made by the court after the verdict is entered, La.C.Cr.P. art. 654, and any inquiry at trial into the defendant’s present need for treatment is immaterial. The trial court’s charge to the jury, which included the substance of Article 654 and other pertinent provisions adequately protected defendant against the jury’s misunderstanding of the not guilty by reason of insanity verdict.

This assignment lacks merit.

Assignment of error number twelve has been abandoned.

ASSIGNMENT OF ERROR NO. 13

When the State’s expert, Dr. Blackburn, stated that he had been assisted in making his diagnosis of defendant by records from the Acadiana Mental Health Unit, defense counsel asked to see the records. The State objected and defense counsel’s request was ruled improper by the court.

Defendant has offered no reason why he should have been permitted to view the requested materials. Defendant does not argue that Dr. Blackburn’s testimony regarding his medical history was at variance with fact nor has he shown that he did not have his own copy of, or access to, the medical records. On the contrary, the testimony of defendant’s own expert, Dr. McCray, that he had studied the Mental Health Unit reports indicates that these were available to defendant. Furthermore, Dr. Blackburn did not consult the records while testifying and there is no indication that he even had them with him at trial.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends that the trial court erred in refusing to give the jury a requested special charge entitled “Effect of Mental Disorder on Specific Intent.”

A requested special charge must be given by the court if it does not require qualification, limitation or explanation and if it is wholly correct and pertinent. However, it need not be given if it is included in the general charge. La.C.Cr.P. art. 807; State v. May, 339 So.2d 764 (La.1976).

In the present case, the substance of defendant’s requested charge was conveyed by the judge’s general charge which explained at some length the principle that insanity negates criminal responsibility. Under Article 807, the trial court properly refused defendant’s charge.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 15

Defendant argues that the court erred in including within its general charge instructions regarding the crime of armed robbery. He claims that since he was on trial for attempted murder, the armed robbery definition was irrelevant and amounted to a judicial comment on the evidence.

Included in fhe definition of first degree murder at the time the crime was committed was “the killing of a human being . when the offender has a specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of . armed robbery”. La.R.S. 14:30(1), as amended by Acts 1973, No. 109, § 1. The evidence adduced at trial showed that defendant, after committing the armed robbery of a Triple-Quick grocery, shot a policeman who had responded to a radio dispatch alerting him that the crime was in progress in his patrol section. Accordingly, the definition of armed robbery was part of the law applicable to the case and was properly included in the charge. La.C.Cr.P. art. 802(1).

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 16

Defendant contends that the prosecutor’s suggestion, made during his closing statement and while pointing at several of the jurors, that this crime could have been committed on them was improper argument and that the court erred in failing to grant his request for a mistrial.

Louisiana Code of Criminal Procedure article 774 delineates the proper scope of argument:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.”

Although the prosecutor’s remarks were not appropriate inferences from the facts and improperly appealed to emotion, we do not find that they were so prejudicial as to warrant the drastic remedy of mistrial. In State v. Dennis, 250 La. 125, 139, 194 So.2d 720, 725 (1967), we held:

“Under the jurisprudence of this Court, before a verdict approved by the judge is set aside on the ground of improper argument, this Court must be thoroughly convinced that the jury was influenced by the remarks, and that they contributed to the verdict.” See also, State v. Chaffin, 324 So.2d 369 (La.1976).

We do not consider the error to have been of sufficient magnitude to warrant a reversal on this ground.

ASSIGNMENTS OF ERROR NOS. 17 and 18

These assignments relate to the court’s refusal to grant a directed verdict of not guilty by reason of insanity. As there is no statutory authority for a trial judge to take such action, the request was properly refused.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 19

Defendant complains of the court’s denial of his motion for a new trial which urged that the verdict was contrary to the law and evidence. Attached to the motion was an affidavit by a member of the jury stating that the jurors had been convinced of defendant’s insanity but had been averse to rendering a verdict of not guilty by reason of insanity because of their fear that defendant would be prematurely released and would commit further crimes.

In criminal cases, the scope of our appellate jurisdiction extends only to questions of law. La.Const. of 1974, Art. 5, § 5(C). An allegation that there is a total lack of evidence of the crime or an essential element thereof presents a reviewable question of law; but a motion for new trial challenging the sufficiency of the evidence, which is a question of fact, presents nothing for our review. La.C.Cr.P. art. 858. State v. Finley, 341 So.2d 381 (La.1976).

The testimony summarized in connection with prior assignments constituted some evidence of each essential element of the offense and of defendant’s sanity at the time of the offense.

Furthermore, the impeachment of a verdict by a juror is prohibited by La.R.S. 15:470:

“No juror, grand or petit, is competent to testify to his own or his fellows’ misconduct, or to give evidence to explain, qualify or impeach any indictment or any verdict found by the body of which he is or was a member; but every juror, grand or petit, is a competent witness to rebut any attack upon the regularity of the conduct or of the findings of the body of which he is or was a member.”

We are bound by this rule of law to ignore the juror’s affidavit. See, State v. Fortenberry, 307 So.2d 296 (La.1975); State v. Hatch, 305 So.2d 497 (La.1975).

Accordingly, the trial court did not err in denying defendant’s motion for a new trial.

This assignment is without merit.

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

DIXON, J., dissents with reasons.

SUMMERS and MARCUS, JJ., dissent for reasons assigned by DIXON, J.

DIXON, Justice

(dissenting).

I respectfully dissent.

In examining the pleadings and proceedings below, following the submission of the case to us for review, I have found the bill of information charging the attempted murder to be defective. C.Cr.P. 920(2). For that reason, the conviction and sentence of the defendant should be reversed.

The bill of information charges that the defendant “Miles Anthony Williams at the Parish of Lafayette on or about the 27th day of August in the year of our Lord, one thousand nine hundred and Seventy-three (1973) attempted to murder one Kenneth Ryder . . .” The facts of the case indicate that the victim, Kenneth Ryder, was a patrolman in the Lafayette Police Department and that he was engaged in the performance of his duties at the time he was shot by the defendant. The defendant had allegedly perpetrated the armed robbery of a Triple-Quick store in Lafayette minutes before the shooting, and he shot the patrolman while attempting to flee. It is clear from the record that the defendant was being tried for attempted first degree murder, R.S. 14:27, 30. The information, however, merely charges that the defendant “attempted to murder one Kenneth Ryder . .

Article I, § 10 of the Louisiana Constitution of 1921 (effective as of the date of the crime and the filing of the information) provided in pertinent part:

“In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him; . . . ”

In addition, on the date that the alleged attempted murder was committed, no crime of “murder” existed in Louisiana. Only four types of criminal homicide were recognized in Louisiana: first degree murder, R.S. 14:30; second degree murder, R.S. 14:30.1; manslaughter, R.S. 14:31; negligent homicide, R.S. 14:32.- See R.S. 14:29. Similarly, no crime of attempted murder was recognized, but rather attempted first degree murder, attempted second degree murder and attempted manslaughter. See C.Cr.P. 814. Therefore, the information is defective on its face for failure to charge a crime under Louisiana law. See e. g., State v. Fontenot, 256 La. 12, 235 So.2d 75 (1970).

The only question remaining is whether, in light of this court’s decision in State v. James, 305 So.2d 514 (La.1974), the failure of the information to charge a crime punishable under Louisiana law should result in dismissal of the prosecution.

Prior to State v. James, supra, the rule in Louisiana was to the effect that a fatal defect in an indictment must be noticed by a court even after conviction and even where the sufficiency of the indictment had not been challenged. When the defect was recognized the prosecution was dismissed, since it was founded on a defective indictment. C.Cr.P. 382. See State v. Smith, 275 So.2d 733 (La.1973) and cases cited in the concurring opinion at page 737. However, in James this strict construction was relaxed in order to foreclose postconviction attack on indictments in certain circumstances:

“We now conclude that, for reasons to be elaborated, where in fact an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here, no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.” (Emphasis added). 305 So.2d at 516-17.

In addition, in James this court made the following observation:

“We note that we do not have before us an indictment that does not, by any reasonable construction, charge the offense for which the defendant is convicted. Nor do we here have an offense charged so imprecisely or uncertainly that there is any real doubt, both for purposes of pretrial notice as well as for subsequent double jeopardy purposes, of the crime-transaction against which the defendant had to defend.” 305 So.2d at 517.

Similarly, in State v. Anderson, 332 So.2d 452, 455 (La.1976), this court said:

“Defendant has raised the discrepancy for the first time on this appeal. This Court has consistently held that the alleged deficiencies in the Bill of Information or Indictment cannot be raised for the first time after conviction where in fact the defendant has been fairly informed of the charge against him, where the indictment does in fact charge a crime, when the defendant may be protected against further prosecution by the double jeopardy provision, and when he has not been prejudiced by surprise or lack of notice. State v. James, La., 305 So.2d 514 (1974). . . .” (Emphasis added).

Here, the indictment does not charge a crime punishable under Louisiana law. The defendant was not “informed of the nature and cause of the accusation against him ...” La.Const. (1921) art. I § 10. No valid sentence may be imposed pursuant to a fatally defective indictment. C.Cr.P. 872.


author: DENNIS, Justice.

text:
    V. L. HASKINS v. Ben J. CLARY, Superintendent of Utilities, John W. Perritt and John F. Emory, et al.
    No. 58896.
    Supreme Court of Louisiana.
    May 16, 1977.

      Hale M. Walker & O. L. Waltman, Jr., Waltman, Napper & Madden, Ruston, for defendants-appellees.
    Bobby L. Culpepper, Baker, Culpepper & Brunson, Jonesboro, for plaintiff-appellant.
   DENNIS, Justice.

J. L. Haskins brought this action against the City of Ruston and its Superintendent of Utilities, Ben J. Clary, for damages in the amount of $15,000, resulting from an alleged breach of contract by the City. The trial court sustained defendants’ exception of no cause of action and dismissed plaintiff’s suit; the court of appeal affirmed, 338 So.2d 166. We granted certiorari to consider whether the lower courts’ decisions were based solely upon deficiencies appearing from the face of plaintiff’s petition. Finding that they were not, we reverse in part and affirm in part.

The peremptory exception of no cause of action tests the legal sufficiency of the petition, and is triable on the face of the papers. For the purpose of determining the validity of the exception, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Pence v. Ketchum, 326 So.2d 831 (La.1976); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Louisiana State Board of Medicai Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968).

Liberal rules of pleading prevail in Louisiana and each pleading should be so construed as to do substantial justice. La.C.C.P. art. 865; Pence v. Ketchum, supra; Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971). When it can reasonably do so, the court should maintain a petition so as to afford the litigant an opportunity to present his evidence. Pence v. Ketchum, supra; Hero Lands Company v. Texaco, Inc., supra; Eschete v. City of New Orleans, supra; Erath Sugar Company v. Broussard, 240 La. 949, 125 So.2d 776 (1961).

Plaintiff’s petition alleged in substance: that he had negotiated a verbal contract with the City of Ruston through its authorized agent, Ben J. Clary, whereby the City agreed to convey to plaintiff a large transformer as compensation for his obtaining a purchaser for generating equipment which the City desired to sell; that he located a buyer; but that the City, in violation of its verbal agreement with plaintiff, conveyed to the buyer, along with the other equipment sold pursuant to an ordinance adopted for the transaction, the transformer which had been promised to plaintiff.

Defendants’ exception of no cause of action was based on the failure of plaintiff’s petition to allege compliance with La.R.S. 33:4712, which provides that before a municipality may dispose of property not needed for public purposes, an ordinance must be introduced setting forth the terms of the transaction, and notice of the proposed ordi-. nance must be advertised to afford citizens an opportunity to oppose its adoption or to apply to the court for restraint of the disposition. While this argument may constitute a valid defense on the merits, it is not properly raised in an exception of no cause of action because it calls upon the court to assume facts favorable to the defendants which are not contained in the petition.

Louisiana Code of Civil Procedure Article 931, which prohibits the introduction of evidence to support or controvert the objection that the petition fails to state a cause of action, limits the availability of such an objection as a vehicle for affirmative defenses to those which are disclosed by the petition itself. See, Steeg v. Lawyer’s Title Insurance Corporation, 329 So.2d 719 (La.1976); American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970); Roloff v. Liberty Mutual Insurance Company, 191 So.2d 901 (La.App. 4th Cir. 1966); Smith v. Williams, 152 La. 948, 94 So. 859 (1922); McMahon, The Exception of No Cause of Action in Louisiana, 9 Tul.L. Rev. 17 (1934-35).

The general rule applicable to trial of such exceptions is that an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based; that is, unless plaintiff has no cause of action under any evidence admissible under the pleadings. West v. Ray, 210 La. 25, 26 So.2d 221 (1946); Babineaux v. Southeastern Drilling Corp., 170 So.2d 518 (La.App.3d Cir. 1965). Because a petition is subject to more than one interpretation or is vague, does not mean that it is fatally deficient. A vague, uncertain, -or indefinite petition is subject to an exception of vagueness, but not to an exception of no-cause of action. Brunson v. Mutual Life Ins. Co. of N. Y., 189 La. 743, 180 So. 506 (1938); Goldsmith v. Virgin, 122 La. 831, 48 So. 279 (1909).

Of course, plaintiff’s petition is fraught with vagueness and from it a reasonable inference may be drawn that no ordinance was adopted authorizing the city to sell him the transformer. Nevertheless, the allegations admit to other reasonable hypotheses under which the plaintiff would have a cause of action, e. g., that the ordinance pursuant to which the city sold the transformer to plaintiff’s principal was drawn broadly enough to serve also as authority for its sale to plaintiff; or that the city adopted a second ordinance authorizing sale of the transformer to him.

Plaintiff was not required to negate in his petition the myriad of possible arguments assailing the validity of the alleged contract. He specifically alleged that a contract had been entered into and breached by the city. This was sufficient to state a cause of action.

However, we find that the exception was properly maintained as to Ben J. Clary, individually. Plaintiff’s petition alleges that Clary participated in the contract negotiations as an authorized agent for the City, but does not assert that Clary bound himself personally in the agreement. Louisiana Civil Code Article 3013 states:

“The mandatary is responsible to those with whom he contracts, only when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers.”

Since plaintiff did not claim any personal responsibility on Clary’s part, the suit was correctly dismissed with respect to this defendant.

For the reasons assigned the judgment of the court of appeal sustaining the exception of no cause of action against the City of Ruston is reversed and the exception is overruled; the judgment sustaining the exceptions against Ben J. Clary in his individual capacity is affirmed; and the case is remanded to the district court for further proceedings according to law. All costs in this Court and the court of appeal are assessed against the defendant City of Ru-ston. All other costs are to await the outcome of the suit.


author: DENNIS, Justice. MARCUS, Justice

text:
    Leonard SCHEXNAYDER et ux. v. James R. CARPENTER et al.
    No. 58920.
    Supreme Court of Louisiana.
    May 16, 1977.

      J. Winston Fontenot, Fontenot, Gau-treaux & Andrus, Lafayette, for plaintiffs-applicants.
    John M. Duhe, Jr., Caffery, Duhe, Oubre & Gibbens, New Iberia, for defendants-respondents.
   DENNIS, Justice.

This is a personal injury suit arising out of an automobile accident. The cause was tried by a jury, which returned a verdict in favor of plaintiff, Dorothy M. Schexnayder, for $59,000, and in favor of her husband, plaintiff Leonard Schexnayder, for $4,040.60. The court of appeal affirmed the district court’s judgment pursuant to the jury verdict, but reduced the amount awarded Mrs. Schexnayder to $15,000. Defendants conceded the issue of liability in the court of appeal. Schexnayder v. Carpenter, 338 So.2d 344 (La.App.3rd Cir. 1976). On application of the plaintiffs we granted a writ of certiorari to review the reduction in the jury award to Mrs. Schex-nayder.

The accident occurred on October 21,1973 in Iberia Parish, Louisiana. Mrs. Schexnay-der, who was approximately 50 years old at the time, had set out to take her two year old grandson to a horse show. The child became ill-tempered, however, and she decided to return home. As she was attempting to make a left turn into a driveway off Louisiana Highway 14, her Pinto station wagon was struck in the side by a cane truck and trailer. The truck was owned by defendant Carpenter, and was being driven by his employee, who was attempting to overtake and pass the Schexnayder vehicle.

Before trial, on March 10, 1976, the parties stipulated that due to the accident it was necessary for Leonard Schexnayder to incur and pay the following: doctors’ bills, $1,213; hospital bills, $75; other medical expenses, $75.45; automobile repair costs $810.42; and automobile rental expense, $1,293.18. It was stipulated that Mrs. Schexnayder lost $574 in wages because of the accident. These amounts, which comprise the $4,040.60 award to Mr. Schexnay-der, are not in dispute.

Plaintiffs contend that the court of appeal reduced the award for damages to Mrs. Schexnayder in violation of Louisiana Civil Code article 1934(3) and the principles announced in Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974); Revon v. American Guarantee & Liability Ins. Co., 296 So.2d 257 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974); Fox v. State Farm Mutual Automobile Ins. Co., 288 So.2d 42 (La.1974); Walker v. Champion, 288 So.2d 44 (La.1974); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963).

Recently, in reviewing the reduction of a jury award in Coco v. Winston, 341 So.2d 332 (La.1977), we approved the statements of law contained in many of these decisions. In the Coco case we said:

“ * * * [BJefore a Court of Appeal can disturb an award made by a trial court . . . the record must clearly reveal that the trier of fact abused its discretion in making its award, [citations omitted] Ohly after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court, [citations omitted] It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what is considers an appropriate award on the basis of the evidence.” 341 So.2d at 335.

Since the jury does have, under the law, much discretion in fixing damages, the appropriate procedure for testing whether the jury abused its discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury. See, Spillers V. Montgomery Ward & Co., supra. We will follow this procedure and attempt to set forth such an interpretation of the evidence.

The collision between the Pinto station wagon and the trailer-truck caused Mrs. Schexnayder’s head and body to violently strike interior portions of her vehicle. She suffered a concussion and remained unconscious for several minutes. Upon reviving she remembered screaming with fright for herself, and out of fear that her grandchild, who had been on the rear seat, had been thrown from the vehicle. After being reassured that he was unharmed, she became alarmed that the accident would upset the child’s mother who was pregnant at that time. Mrs. Schexnayder was bleeding from a laceration over the eye and had broken glass in her hair, which later necessitated its being closely cropped. Her face was badly bruised, and for several days she experienced dizziness, weakness, nausea, blurred vision and lapses of memory. She was taken from the accident site to the hospital where she was given first aid by a doctor in the emergency room and sent home to remain in bed for two days.

On the third day after the collision, October 24, 1973, Mrs. Schexnayder was able to visit her family physician, Dr. J. L. Co-meaux. He testified she had a black eye and complained of pain in the neck region, and multiple aches and pains over her body. She was also very nervous and anxious about her pain and possible disability. The doctor detected tenderness and muscle spasm in her neck muscles and an elevation in her pulse rate. He prescribed muscle relaxants and tranquilizers. She was unable to return to work for approximately one month. Although she continued under Dr. Comeaux’s care and he strengthened her dosage of tranquilizers, the symptoms persisted. The doctor suspected she was suffering from degenerative arthritis of the neck, which had been aggravated by the accident. After five to six months of treatment without significant improvement, however, Dr. Comeaux concluded that her problems were possibly psychogenic. He referred her to Dr. James Blackburn for psychiatric evaluation and treatment if indicated.

In order to rule out the possibility of damage to her nervous system, Dr. Blackburn referred Mrs. Schexnayder to Dr. Daniel C. Dunlap, a neurologist, for an examination. She was first seen by Dr. Dunlap on June 18, 1974. His impression was that she was having residual cervical pain from a concussion and neck injury. He prescribed muscle relaxant drugs and a course of physical therapy with Mr. Lindsey Dumond, a physiotherapist. Between June 25, 1974 and August 4, 1975, she received thirty-three physical therapy treatments consisting of motorized traction, heat treatments with hydrocollated packs, and ultra sound or deep heat applications. Also, under Mr. Dumond’s direction, she bought and used a traction apparatus at home.

During this time she also visited Dr. Dunlap on five occasions. On August 8, 1974, he took X-rays of her neck region that showed narrowing of disc spaces, which he said was evidence of degenerative arthritis, that could have been aggravated by the accident. On September 16, 1974, Dr. Dunlap detected tightness of her neck muscles which he said was the same thing as muscle spasm. On January 6, 1975, he still detected tenderness in the back of her neck and prescribed a six day course of drugs for inflammation as well as a neck halter. Dr. Dunlap testified that if her neck condition continued to degenerate it is possible she would need a cervical disc fusion, which would require myelography and surgery. These procedures would involve hospitalization for ten to fourteen days and expenses of approximately $3,000. However, Dr. Dunlap testified that she did not need a fusion at the time he last saw her on August 5, 1975.'

At the time of the accident Mrs. Schex-nayder was educational director of the Iberia Parish Headstart Program, and sometime before the date of the trial she was also made educational director in St. Martin Parish. Her job required a great deal of driving. In addition to motoring to work every day, it was necessary that she visit regularly the nine headstart centers scattered throughout the two parishes. She testified that when she returned to work her neck pains increased steadily and that she developed a fear of driving which grew continually. When asked if Mrs. Sehexnay-der’s personality had altered after the accident, her husband responded affirmatively, stating there had been quite a change. He testified that she had become significantly more irritable than before, and that her fear of accidents had on occasion caused her to grab the steering wheel from him while she was riding as a passenger.

Dr. Blackburn, the psychiatrist, first examined Mrs. Schexnayder on May 10, 1974. He testified that when she began to drive after the accident the level of tension in her neck and shoulders increased. However, the doctor explained, because she was a determined individual she forced herself to resume work. The inner conflict between her desire to perform her duties and her fear of driving resulted in her being completely exhausted at the end of each day causing even more intense pain, as well as difficulty in sleeping. She had recurrent dreams of accidents in which she was being struck, crushed or killed by vehicles or huge objects. While awake she experienced increased anxiety and nervousness whenever she saw, read or heard of ail 'accident. Using hypnosis, Dr. Blackburn caused Mrs. Schexnayder to relive the experience of two previous automobile mishaps in an attempt to eliminate some of the fear and anxiety she had accumulated. He found that in her subconscious there was a very vivid and frightening memory of these accidents as well as the one of October 21, 1973. Mrs. Schexnayder was resolute and, according to the psychiatrist, “too motivated” in her wish to overcome her problems, so that her treatment progressed more slowly than it would have otherwise. At the time of the trial on March 10, 1976, she needed further psychiatric treatment, he said, but she was “eighty, ninety per cent better now than she was initially.” Dr. Blackburn testified that, in the absence of additional trauma, such as another accident, an operation on her neck, or something that produces a threat of disability, his patient would require three to six months of additional psychiatric care. He stated that she was still taking tranquilizers and muscle relaxants, as well as continuing to use her traction device at home. Dr. Blackburn recommended that she continue the medicine and traction for an indefinite period.

After construing the evidence from the reasonable point of view most favorable to the plaintiff, and according to the action of the trial court the much respect to which it is entitled, we conclude that the court of appeal was correct in deciding that the trier of fact clearly abused its discretion in making its award. A careful consideration of the record clearly reveals that the award was excessive, particularly since the evidence does not realistically support a finding of any permanent injury, disability, or extreme pain and suffering. We cannot agree, however, with the court of appeal that it interpreted the evidence in the light most favorable to plaintiff or that the award it fixed for her injuries is generous. Instead, it appears to us that the court of appeal based its award upon its opinion of the most. reasonable version of the facts rather than upon the version most favorable to the plaintiff which is also reasonable. .•■■ ■

Bearing in mind our own precepts that, after properly finding the trier of fact abused its discretion by making an excessive award, an appellate court may not simply substitute its judgment of what it considers an appropriate award on the basis of the evidence, but may only lower the award to the highest point which is reasonably within the discretion afforded the trier of fact, Coco v. Winston Industries, Inc., supra, the decree of the court of appeal is amended by partially restoring the award made to the plaintiff, Dorothy M. Schex-nayder, and rendering judgment in her favor against the defendants, in solido, in the sum of $30,000. In all other respects the judgment of the court of appeal is affirmed. The costs of the proceedings in this Court are assessed to the defendants-respondents.

AMENDED AND AFFIRMED.

SANDERS, C. J., dissents, being of the opinion that the judgment of the court of appeal is correct. See 338 So.2d 344.

MARCUS, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

La.Const. art. 5, § 10(B) (1974) defines the scope of appellate jurisdiction of the court of appeal as extending to law and “facts.” However, this court has on repeated occasions stated that in the assessment of damages the court of appeal must give “much discretion” to the trier of fact. La.Civ.Code art. 1934(3). Recently, in Coco v. Winston Industries, 341 So.2d 332 (La. 1977), a majority of this court concluded after reviewing the record that the court of appeal erred in reducing a jury verdict for damages from the sum of $350,000 to the sum of $40,000. Accordingly, the award of the jury was reinstated. This conclusion was based on a finding that the jury had not abused its much discretion in finding that plaintiff was due the sum of $350,000 for his injuries.

In the instant case, the jury awarded plaintiff $59,000. Finding that the jury abused its discretion, the court of appeal reduced the award to $15,000 based upon its review of the record. The majority of this court, after reviewing the record, agreed with the court of appeal that the jury had abused its much discretion in fixing damages at $59,000; however, relying on language in Coco, the majority restored the award to $30,000 finding that the court of appeal erred in basing its award on its own appreciation of the evidence rather than lowering the award to the highest point which was reasonably within the discretion afforded to the trier of fact.

I disagree with this reasoning. In my view,.the court of appeal has a constitutional obligation to review facts in the scope of its appellate jurisdiction. La.Const. art. 5, § 10(B) (1974). In the assessment of damages, La.Civ.Code art. 1934(3) and many decisions of this court require that much discretion must be afforded to the trier of fact. However, in my view, once the court of appeal finds that the trier of fact has abused its much discretion, the appellate court should then fix damages in an amount which in its opinion is supported by the record.

I agree with the majority in its finding that the court of appeal correctly concluded that the trier of fact abused its much discretion in awarding damages to Mrs. Schex-nayder in the sum of $59,000. However, I disagree with the majority in holding that the court of appeal, once having found that the trier of fact abused its discretion in awarding damages, should have lowered the award only to the highest point which was reasonably within the discretion afforded to the trier of fact. Rather, I consider the court of appeal correctly reduced the award to an amount based upon its appreciation of the record. I find that the record fully supports the amount ($15,000) found by the court of appeal to adequately compensate plaintiff for her injuries. Accordingly, I respectfully dissent.


author: PER CURIAM.

text:
    James A. MOREAU v. Richard A. TONRY et al.
    No. 59857.
    Supreme Court of Louisiana.
    May 17, 1977.
    Gibson Tucker, Jr., New Orleans, Luke A. Petrovich, Buras, Gilbert V. Andry, Jerald N. Andry, Joe Windmeyer, New Orleans, Leonce Malus, Chalmette, for plaintiff-appellant.
    John R. Martzell, Charles F. Gay, III, Martzell & Montero, New Orleans, J. Wayne Mumphrey, Chalmette, Theodore L. Jones, Baton Rouge, Kendall L. Vick, Carmack Blackmon, Asst. Attys. Gen., for defendants-appellees.
   PER CURIAM.

The court of appeal certified two questions of law to this court La. Constitution of 1974, Article 5, Section 11; Rules of Supreme Court of Louisiana, Rule 11 (1973).

The questions propounded, and our answers thereto, are as follows:

Question 1
In this action to annul a judgment dismissing an election contest suit, do the courts have the power and authority to declare Mr. Moreau the duly elected nominee of the Democratic party for the office of member of the United States House of Representatives from the First Congressional District of the State of Louisiana?

Answer: No. The judgment in the nullity action only has the effect at most of setting aside the judgment in the election contest suit.

Question 2
In this action to annul a judgment dismissing an election contest suit, do the courts have the power and authority to declare null and void the general election for that office held on November 2, 1976 and to order a new general election?

Answer: No. There is no authority for a candidate who contests the results of a primary election to have a general election set aside after the name of the candidate elected to Congress in a general election has been certified as provided by law.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Leon SIMMONS, Larry C. Harris, Chester R. Williams.
    No. 59041.
    Supreme Court of Louisiana.
    May 25, 1977.
    Thomas Mull, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Clifford KEYS.
    No. 59051.
    Supreme Court of Louisiana.
    May 25, 1977.
    J. Harold Fontenot, Opelousas, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, Dist. Atty., Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Roland WILLIAMS, Llewllyn Barber, and Jerome Carter.
    No. 59067.
    Supreme Court of Louisiana.
    May 25, 1977.
    Philip E. O’Neill, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. James DAVIS, Billy Fulbright, Mary Hatchett and Donald Bullock.
    No. 59112.
    Supreme Court of Louisiana.
    May 25, 1977.
    Barry Viosca, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Darell D. McELROY.
    No. 59166.
    Supreme Court of Louisiana.
    May 25, 1977.
    L. Howard McCurdy, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Charles JACKSON.
    No. 59195.
    Supreme Court of Louisiana.
    May 25, 1977.
    Thomas W. Mull, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Ronnie BAILEY.
    No. 59197.
    Supreme Court of Louisiana.
    May 25, 1977.
    Joseph V. Ferguson, III, New Orleans, for defendant-appellant.

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

Affirmed.


text:
    STATE of Louisiana v. Edward WILLIAMS.
    No. 59220.
    Supreme Court of Louisiana.
    May 25, 1977.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court, with instructions to sentence the defendant to imprisonment at hard labor for a period of twenty (20) years. Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); State v. Sledge, 340 So.2d 205 (La.1976); State v. Lee, 340 So.2d 180 (La.1976).


text:
    STATE of Louisiana v. Ogie RICHARDSON.
    No. 59221.
    Supreme Court of Louisiana.
    May 25, 1977.
    Bruce Ashley, Orleans Indigent Defender Program, New Orleans, for defendant-appellant. '
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Irvin STERLING.
    No. 59238.
    Supreme Court of Louisiana.
    May 25, 1977.
    Lyall G. Shiell, Jr., New Orleans, for defendant-appellant.

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

Affirmed.


text:
    STATE of Louisiana v. Sherman DIXON.
    No. 59239.
    Supreme Court of Louisiana.
    May 25, 1977.
    Bruce C. Ashley, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Leslie SMITH.
    No. 59240.
    Supreme Court of Louisiana.
    May 25, 1977.
    Maurice T. Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Robert FELTON, Jr.
    No. 59251.
    Supreme Court of Louisiana.
    May 25, 1977.
    Bernard E. Burk, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Joseph GLEASON.
    No. 59252.
    Supreme Court of Louisiana.
    May 25, 1977.
    Robert Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant’s conviction is affirmed, but the death penalty imposed is annulled and set aside, and the case is remanded to the district court with instructions to sentence the defendant to imprisonment at hard labor for a period of twenty years. Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); State v. Sledge, 340 So.2d 205 (La.1976); State v. Lee, 340 So.2d 180 (La.1976).


text:
    TRI-PARISH BANK & TRUST CO. et al. v. CITY OF EUNICE.
    No. 59849.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: St. Landry Bank and Trust Co. applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1121, Third Circuit, Parish of St. Landry.

Writ denied. The application has not established that the court of appeal erred as matter of law.

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


text:
    STATE of Louisiana v. John DEFRANCES, Jeffrey Defrances, Allen Defrances, Kimberly D. Bishop, Carolyn S. Gamble, Lynn Lewis and Tonya Baker.
    No. 59847.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: John Defrances, et al applying for writ of certiorari, review, prohibition and mandamus.

Writ denied. There is no final judgment. Applicant has an adequate remedy by review in the event of conviction.

DIXON, J., and CALOGERO, J., dissent from denial.


text:
    In re Commitment of Cindy MALVO.
    No. 59838.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Cindy Malvo applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1178, Third Circuit, Parish of Calcasieu.

Application denied; there was no error below on the constitutionality of the commitment statute; the showing made does not convince us that relator’s due process rights were violated in the application of the statute. O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 is distinguishable.


author: DIXON, J.,

text:
    Bernard E. REGAN v. Bernard E. CARR.
    No. 59837.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Bernard E. Carr applying for certiorari, or writ of review, to the Court of Appeal, 343 So.2d 1125, Third Circuit, Parish of Acadia.

Writ denied. The assignments of error are not meritorious.

DIXON, J.,

dissents from the denial; R.S. 9:3203 is a punitive law which must be strictly construed. This defendant did not “fail[s] to permit the lessee to occupy or cultivate”; he sold land with an unrecorded lease and the purchaser evicted the plaintiff.

DENNIS, J., is of the opinion the writ should be granted and also agrees with the reasons assigned by Dixon, J.


author: TATE, J.,

text:
    Leon GUILLORY v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 59817.
    Supreme Court of Louisiana.
    June 1, 1977.
   In re: Leon Guillory applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

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

TATE, J.,

concurs. The trier of fact here found that the present disability stems from a trauma completely independent of the initial work-injury and not causally related to it. The trial judge thus rejected the plaintiff’s factual contention that the later trauma resulted in a compensable aggravation into disability of a latent residual of the initial work-injury, i. e., a predisposition to re-injury or recurrence of the back disability due to a weakening or predisposition which resulted from the initial work-accident. I am unable to find manifest error in the trial court’s resolution of the facts of this case, even though conceding that the medical opinions’ failure to find a compensable predisposition to reinjury contrary to that established by the medical testimony in the decisions relied upon by the plaintiff.