author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Charles HAYES, Appellant.
    No. 56615.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.
    Arthur J. Boudreaux, III, Barnes & Barnes, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Alton T. Moran, James E. Boren, Asst. Dist. Attys., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of armed robbery, La.R.S. 14:64, found to be a multiple offender, La.R.S. 15:529.1, and sentenced to sixty years at hard labor. The defendant appeals.

On appeal, the defendant argues eleven assignments of error. Assignments 2, 5, and 11 present the most arguable issúes.

Assignment 2:

The most serious issue is presented by the denial of a mistrial sought under La.C.Cr.P. art. 775: “A mistrial may be ordered, and in a jury case the jury dismissed, when: * * * (6) False statements of a juror on voir dire prevent a fair trial.”

After intensive voir dire examination, a juror was accepted. On being asked his employment, he had stated that he was an investigator for a state agency. There is no indication of any intentional concealment during the examination; nevertheless, the juror neglected to mention that he also had part-time employment in a convenience store on weekends. (The present offense concerned robbery of another convenience store maintained by the same firm, but at another location.)

This circumstance developed during a weekend recess, after the juror was sworn and the trial had commenced. At a conference in chambers attended by both counsel, the trial court satisfied itself of the impartiality of the juror, despite this circumstance and despite the juror having seen a trial witness at the store over the weekend (although no conversation about the trial occurred).

With some reservations, we find no reversible error resulted from the trial court’s denial of a mistrial under the circumstances shown.

We principally base our finding on the lack of prejudice exhibited by the ruling. La.C.Cr.P. art. 921. The trial court’s finding that the juror was unbiased and that his continued service did not militate against a fair trial seems to be corroborated by the subsequent circumstance that the juror in question was one of the two jurors voting against conviction. See supplemental transcript.

Asssignment 5:

By information filed May 28, 1974, the defendant was charged with committing an armed robbery on March 19. The trial commenced November 13. In the course of the state’s case, it was discovered that the robbery had actually occurred on March 9, ten days earlier then initially charged.

As authorized by La.C.Cr.P. art. 488, the state moved for and was granted an amendment of the indictment to reflect the correct date of the offense. (The date of an armed robbery is not essential to the offense. State v. Pickett, 261 La. 237, 259 So.2d 307 (1972). See also La.C.Cr.P. art. 468.)

The defendant’s counsel objected to the amendment, urging that, although no alibi defense was claimed for the date originally charged, he had investigated and prepared his defense against a charge of an offense committed then, not eleven days earlier.

It was mid-afternoon. The trial court recessed the trial until 10:00 a.m. the following morning.

When court opened the following morning (Thursday), the defense counsel moved for a mistrial and, when it was denied, for a continuance (recess). This motion was granted, with the state being first permitted to finish its case. The state rested in mid-afternoon, and the defendant was granted a recess to prepare and present its case until the following Monday morning.

The defendant’s counsel did not object at that time, Tr. 108, nor did he object or request more time when the trial resumed after the three-day recess, Tr. 160.

Under the circumstances shown (pretermitting whether the defendant’s lack of objection to the continuance (recess) granted precludes his present attack on it as insufficient remedy, La.C.Cr.P. art. 841), the continuances (recesses) granted by the trial court were adequate to correct any prejudice (insofar as shown) which was sustained by the defendant due to the initially mistaken date of the charge.

Despite counsel’s persuasive argument to the contrary, we are not convinced that he has shown any prejudice resulting to his client from the ruling now complained of. No error is shown by this assignment.

Assignment 11:

After conviction, the state charged the defendant with being a second offender for purposes of securing an enhanced sentence. La.R.S. IS :529.1.

The state proved that the defendant was the person charged with the first offense by fingerprint identification. To prove the first conviction (the plea of guilty by a person of the same name), state called the lawyer who had been appointed to represent the accused on that first charge. After objection was overruled, the lawyer-witness identified the present defendant as the same person whom he had represented on the first charge and who had pleaded guilty to it.

The objection was raised as follows: When the attorney-witness was asked if he knew “Charles Hayes” (the defendant’s name), he claimed the attorney-client privilege. The defendant also objected.

The trial court ruled that the privilege protected any communication made to the attorney during his representation or information obtained as a result of it, La.R.S. 15:475 , but that .the privilege did not under the present facts extend to the fact that he had represented him, a matter of public record.

We find no error in this ruling under the present circumstances. The weight of legal authority does not extend the lawyer-client privilege to the fact that an attorney represented a given client, except under limited circumstances not here present. McCormick on Evidence, Section 90 (2d ed., 1972). The defendant cites no contrary authority.

Other Assignments:

By reason of settled principles clearly unapplicable, the other assignments do not present any substantial issue for review.

Decree

Accordingly, we affirm the conviction and sentence.

Affirmed.

SUMMERS, J., concurs.

      . La.R.S. 15:475 provides: “No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client’s express consent, to disclose any communication made to him as such legal adviser by or on behalf of his client, or any advice given by him to his client, or any information that he may have gotten by reason of his being such legal adviser.”

      . E. g., that testimony of injuries were unduly inflammatory, that fingerprint testimony was inadmissible, that testimony was hearsay, or not relevant or introduced without proper foundation, etc.


source: Caselaw Access Project

license: Public Domain

text:
    LEE LUMBER COMPANY, LTD. v. INTERNATIONAL PAPER COMPANY.
    No. 57228.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Lee Lumber Company, Ltd. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides. 321 So.2d 42.

Writ denied. Case has been remanded. Therefore judgment is not final. All rights of the applicant are reserved pending disposition of the remand.

DIXON, J., dissents from the denial, being of the opinion the lease might be null, having been contracted on a potesta-tive condition.


text:
    STATE of Louisiana ex rel. William DOYLE v. Richard CRANE, Attorney for Director, Department of Corrections, et al.
    No. 57310.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: William Doyle applying for Writ of Mandamus and Remedial Writs.

Application denied. See Per Curiam.

PER CURIAM RELATIVE TO DENIAL OF WRIT APPLICATION

Petitioner here seeks an order citing for contempt the attorney for the Director of the Department of Corrections, and/or the issuance of a certificate of discharge in connection with his conviction and sentence arising out of Criminal District Court, Parish of Orleans, Docket No. 242-169.

Apparently petitioner was convicted in those proceedings of a violation of R.S. 14:69 (receiving stolen things) and received on April 8, 1975, a sentence of 14 months with credit for time served. Apparently he was thereafter charged as a multiple offender because of the same conviction and received a thirty year sentence. Apparently both sentences, appearing as independent sentences, are reflected on records of the Department of Corrections.

An appeal from that conviction had been recently pending in this Court when this same applicant filed a motion to dismiss his appeal setting forth that he had already fully served the fourteen month sentence incident to the conviction. In that motion he asked that this Court direct the Director of the Department of Corrections, State of Louisiana, to serve upon him a certificate of discharge of the hereinbefore shown sentence of 14 months.

On November 18, 1975, in response to that motion to dismiss appeal, the Honorable Chief Justice of this Court signed a motion ex parte “Motion granted and appeal dismissed.”

Based upon that dismissal and the underlying motion incorporating the request for certificate of discharge, petitioner seeks now to have the certificate of discharge issued.

The attorney for the Department of Corrections was correct in refusing to issue the certificate of discharge upon the grounds that this Court’s order simply meant dismissal of the appeal. It did not order issuance of any discharge.

We now realize that petitioner who sought dismissal of his pending appeal of a conviction which gave rise to a fourteen month sentence may not have wanted the appeal dismissed without the issuance of the discharge. Our dismissal may therefore have been improvidently granted. In the event petitioner prefers to reinstitute his appeal he may do so, either by asking this Court to revoke a purportedly improvidently granted dismissal of appeal, or by petitioning in the district court for a writ of ha-beas corpus seeking an out-of-time appeal.

Furthermore, the records of the Department of Corrections may be incorrect in showing two sentences, one for 14 months and one for 30 years when in fact it appears that the 30 year sentence imposed under the multiple offender bill was possibly intended to supersede the earlier 14 month sentence. If this is the case, and if the petitioner seeks from the Department of Corrections, a correction of their records in this regard, such request might properly be entertained at that time.


text:
    STATE of Louisiana, Appellee, v. Darrell TAYLOR and Claude Quest, Appellants.
    No. 56233.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    J. Daniel Rivette, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendants were convicted of armed robbery, La.R.S. 14:64, and each sentenced to forty-five years at hard labor. On their appeal, they rely upon five assignments' of error. Finding no reversible merit to any, we affirm.

Motion to Suppress Identification

The most arguable of the defendants’ contentions is based upon the denial of their motion to suppress their identifications. Assignment No. 4. It is contended that the victim’s out-of-court identification of them was impermissibly suggestive and thus unconstitutionally tainted, and that therefore his in-court identification of them as the robbers was inadmissible. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 1247 (1967); State v. Wallace, 285 So.2d 796 (1973).

The victim was unable to attend a physical line-up in which the present two suspects were placed. The line-up of eight men included suspects in other robberies and other fill-ins, all of similar appearance to the accused. A photograph of the lineup was made and subsequently shown to the victim. He immediately identified the two defendants as his robbers without any suggestive indication that the suspects of his own robbery were included. He had on previous occasions denied identification to photographs of other individuals when exhibited to him.

The defendants chiefly argue that the photographic line-up thus conducted was improper on the basis of abstract propositions : A physical line-up is preferable to a photographic; It is difficult to conduct a line-up at which suspects of several crimes are included, since normal dissimilarities of offenders tend to accentuate and make unduly suggestive to the victim of a particular crime any member of the line-up who resembles the offender in his particular crime.

These abstract propositions may well be correct. The present may well be a practice that should be utilized cautiously. However, in this particular case, it is not claimed or shown that this particular photographic line-up was impermissibly suggestive, or that it was comprised of other members dissimilar in appearance to the present accused.

Further, the record reflects no reason to discredit the victim’s positive testimony that he had full opportunity in the several minutes of this daytime robbery to observe and remember the robbers. Under the totality of the circumstances shown, we are unable to say that this independent basis for identification of the defendants was not reliable. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

We do not find reversible merit to this bill.

The other assignments do not require extended discussion:

Assignments 1 and 2:

In response to motions for oyer and for a bill of particulars, the state furnished certain evidence and further denied it had any evidence exculpatory of the accused. The defendants complain of the state’s failure to furnish pre-trial discovery also of the prosecutor’s file and of written statements of witnesses. Under present state law, (in the absence of a showing that exculpatory evidence is withheld) denial of such pre-trial discovery does not afford a ground for reversal on appeal of a subsequent conviction. State v. Thomas, 310 So.2d 517 (La.1975); State v. Thomas, 290 So.2d 317 (La.1974).

Assignment 3:

No abuse of discretion is shown in the trial court’s failure to grant a continuance sought by the defendant. La.C.Cr.P. arts. 707, 712; State v. Brewer, 301 So.2d 630 (La.1974). The sole ground on which the continuance was sought is that the preliminary motions were not tried until just before the merits-trial. No actual prejudice is shown by the court’s denial of a continuance and its proceedings to the trial on the date previously fixed, immediately after hearing and determination of the preliminary motions.

Assignment 5:

The uncontradicted evidence shows the oral confession of the defendants to the robbery to have been made voluntarily and without coercion, after full explanation to them of their Miranda rights.

Decree

For the reasons assigned, we affirm the convictions and sentences.

Affirmed.


author: DIXON, Justice.

text:
    LOUISIANA POWER & LIGHT COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 56634.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Andrew P. Carter, Eugene G. Taggart, Monroe & Lemann, New Orleans, for plaintiff-appellant.
    Marshall B. Brinkley, Gen. Counsel, Louisiana Public Service Commission, Baton Rouge, for defendant-appellee.
    Stanwood R. Duval, Jr., Houma, for in-tervenor-appellee.
   DIXON, Justice.

Plaintiff, Louisiana Power & Light Company (LP&L), filed a complaint with the Louisiana Public Service Commission alleging that intervenor, South Louisiana Electric Cooperative Association (SLE-CA), had violated either R.S. 45:123 by extending its electric line beyond the 300 foot radius provided therein, or the Commission’s General Order of March 12, 1974. Finding no merit in this contention, the Commission dismissed LP&L’s complaint. From the district court judgment affirming the Commission’s disposition, LP&L appeals directly to this court. La. Const, of 1974, art. 4, § 21(E).

The dispute between LP&L and SLECA concerns the right to provide electrical service to South Coast Corporation at its building located at the intersection of Woodlawn Ranch Road and Louisiana Highway 57 in Terrebonne Parish. Upon customer request, SLECA rendered service to the building. In this action, LP&L seeks to have SLECA’s lines removed and to have LP&L recognized as the sole utility authorized to provide service to South Coast’s building. .

Previous to the time SLECA rendered service to South Coast Corporation, it owned a distribution line running along Highway 57, a distance in excess of 300 feet from the metering point of the building. From this distribution line ran a service drop which provided service to the street light at the intersection of the two thoroughfares and to construction crews during the construction of the building. This service line is within 300 feet of the metering point.

LP&L owned a transmission and distribution line which ran along Woodlawn Ranch Road, easily within 300 feet of the metering point.

LP&L argues that the term “electric line” as used in R.S. 45:123 does not contemplate a service drop such as used in the case before us to service the street light and construction crews.

R.S. 45:123 reads in relevant part:

“No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service. is being served by, or which is not being served but is located within 300 feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility; provided, however, that nothing contained herein shall preclude (a) any electric public utility from extending service to an applicant for service at an unserved point of connection located within 300 feet of an existing electric line of such electric public utility, unless (i) such line was not in operation on April 1, 1970 and (ii) the point of connection is located within 300 feet of an existing electric line, of another electric public utility, which line was in operation on said date, or (b) any electric public utility from extending service to its own property, or to another electric public utility for resale; and provided further that any consumer who feels aggrieved with the electric service being received by him may apply to the Louisiana Public Service Commission for an order directed to his present supplier to show cause why the consumer should not be released from said supplier, and if the commission shall find that the service rendered to such consumer is inadequate and will not be rendered adequate within a reasonable time the release shall be granted.
“As used in this section, an 'electric line’ is a line constructed and operated for the transmission and/or distribution of electricity and which was not originally constructed for the principal purpose of preempting territory.”

The Commission found that the service drop did qualify as an “electric line,” that it was within 300 feet of the metering point and, therefore, that because both utilities had existing lines within 300 feet of the metering point the choice was left to the customer.

According to the settled jurisprudence of this court, the decisions of the Commission are to be accorded great weight and are not to be disturbed unless found to be clearly erroneous or unsupported by the evidence. Monochem, Inc. v. Louisiana Public Service Com’n., 253 La. 1047, 221 So.2d 504 (1969); Arkansas & La. Mo. Ry. Co. v. Louisiana Public Service Com’n., 251 La. 963, 207 So.2d 760 (La.1968).

We cannot find that the Commission’s conclusion is clearly erroneous. The evidence shows clearly that the service drop distributed electricity not only to the street light but also to the construction site during construction of the building. The definition of “electric line” provided by the statute includes any line which is operated for the “transmission and/or distribution of electricity” and is not limited to lines which are labeled transmission or distribution lines by the utility industry. Hence the Commission’s finding that the service drop here involved constitutes an “electric line” for purposes of R.S. 45:123 is supported by the record before us.

LP&L further argues that SLECA violated the Commission’s General Order of March 12, 1974, which reads in relevant part as follows :

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

Yet the Commission’s finding in the case before us refuted this contention:

“We further find that the difference of construction costs would not merit the application of this Commission’s General Order dated March 12, 1974 dealing with Duplication of Electric Service since both utilities can serve South Coast Corporation in an economic and justifiable matter (sic).”

The Commission heard conflicting testimony as to the difference in the cost of the service offered by each utility. The only evidence supporting LP&L’s contention is testimony by one of its employees, Mr. Williamson, to the effect that LP&L could construct the line for $800 less than SLE-CA could. This estimate, however, was based on Mr. Williamson’s suggestion that the figure to which SLECA’s witness testified was erroneous. Mr. Williamson testified that he “knew for a fact” that SLE-CA could not purchase transformers for the price quoted in the estimate. This does not provide a basis for the contention that the action taken by the Commission was clearly erroneous or unsupported by the evidence.

The judgment of the district court is affirmed, at plaintiff’s cost.


author: BOLIN, Justice.

text:
    LOUISIANA POWER AND LIGHT COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 56633.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Andrew P. Carter, Eugene G. Taggart, Monroe & Lemann, New Orleans, for plaintiff-appellant.
    Stanwood R. Duval, Jr., Duval, Arce-neaux, Lewis & Funderburk, Houma, for intervenor-appellee.
    Marshall B. Brinkley, Baton Rouge, for L.P.S.C., defendant-appellee.
   BOLIN, Justice.

This is an appeal by Louisiana Power and Light Company from the judgment of the district court of East Baton Rouge Parish which modified an order of the Public Service Commission. Because the aforesaid order of the Commission does not definitively dispose of all the issues presented by this case, we remand the entire matter to the Commission for clarification and for whatever proceedings it deems proper in light of this opinion.

The present controversy involves the Public Service Commission’s regulation of competition between two electric public utilities in Terrebonne Parish near Houma. South Louisiana Electric Cooperative Association (SLECA) has had for a number of years a powerline along the parish road which parallels Big Bayou Black. On May 21, 1973, Louisiana Power and Light Company (LP&L) began constructing an electric line along Savanne Road in Terre-bonne Parish ostensibly to service a street light at the southern end of the line. The line, which extends for five miles, was completed and energized on May 25, 1973.

Soon thereafter, SLECA filed a petition for a cease and desist order and a complaint with the Public Service Commission alleging first that the street light installed at the southern extremity of the LP&L line was within 300 feet of SLECA’s existing powerline along the Big Bayou Black Road. SLECA alleged that the LP&L line had been constructed in contravention of La.R.S. 45:123. (This generally prohibits construction of electric facilities within 300 feet of an existing electric line of another utility.) SLECA alleged the LP&L line had been constructed without proper authority and solely for the purpose of gaining the privilege of preempting power distribution within 300 feet of the line under the provisions of La.R.S. 45:123. SLECA prayed that LP&L be required to dismantle its Savanne Road powerline because its construction and maintenance were wasteful and illegal.

Before answering SLECA’s complaint, LP&L moved the streetlight in question to a distance in excess of 300 feet from the SLECA Bayou Black line. In the meantime, beginning on May 25, 1973, SLECA constructed its own 7000-foot powerline along Savanne Road, paralleling and running ten to twenty-two feet from the LP&L line. At the northern end of the SLECA line were a nightwatchman light erected by SLECA and a water pump operated by the owner of property adjacent to Savanne Road. SLECA’s claimed motive for building the line was to provide electric power for the light and pump.

LP&L answered SLECA’s complaint by stating the original placement of its streetlight was inadvertant and that it had been moved so it was no longer within 300 feet of SLECA’s Bayou Black line. It then denied it had constructed its powerline solely for the purpose of preempting electric distribution, arguing that the line’s purpose was to supply power to the streetlight it had erected and to later form part of a loop connection to other LP&L powerlines in the area. LP&L also filed a reconven-tional demand with its answer, alleging SLECA’s Savanne Road line was illegally constructed within 300 feet of its own existing line. It further alleged the line was not a true “electric line” within the meaning of La.R.S. 45:123 but was merely built to preempt. Thus, LP&L prayed that SLECA be ordered to dismantle its Sa-vanne Road line.

The Public Service Commission, after a hearing, ordered LP&L to dismantle its powerline along Savanne Road, finding that it did not meet the criteria of an “electric line” under La.R.S. 45:123 in that it was constructed to preempt territory. The Commission, however, did not pass directly upon LP&L’s reconventional demand, which contained substantially the same allegation against SLECA.

LP&L then appealed from the ruling of the Commission to the district court of East Baton Rouge Parish. That court took additional testimony and modified the order of the Commission. The court found that the LP&L line was constructed to serve the legitimate purpose of forming part of a loop with other powerlines in the area, and thus allowed the utility to retain the line and to use it for the limited purpose of looping with other facilities. LP&L then appealed from the judgment of the district court directly to this Court as allowed by La.Const. art. 4, § 21(E) (1974).

As mentioned earlier, the Public Service Commission has apparently failed to consider and resolve the issues presented by the reconventional demand filed in the instant suit. The order of the Commission could be interpreted as a tacit rejection of LP&L’s claims, presumably based upon the finding that the SLECA line was not constructed merely for the purpose of preempting the 300 foot corridor along the line. If this interpretation be accepted the Commission could understandably have rejected the other ground supporting LP&L’s demand (that SLECA’s construction of its powerline within 300 feet of the LP&L line violated La.R.S. 45:123) on the basis that the LP&L line was not a bona fide “electric line” with preemptive efficacy.

However, we do not choose to infer from the Commission’s silence that it has rejected the reconventional demand when the failure to dispose of the claim may have merely been an oversight. Moreover, we cannot effectively review a Commission ruling that the SLECA line is not to be dismantled unless we know the factual and policy bases upon which that ruling was made.

We also decline to review at this time that part of the case that is properly before us (the order of the Commission restricting the use of the LP&L powerline). The original complaint and the apparently unconsidered reconventional demand involve such similar legal and factual issues that the Commission’s disposition of one claim may well influence our estimation of the correctness of its resolution of the other. Moreover, should the Commission rule that SLECA must dismantle or restrict the use of its line, the utility will undoubtedly raise many of the same issues on appeal which have been urged herein by LP&L. In anticipation of this possibility, we prefer to defer our consideration of these arguments for the sake of judicial economy and a more orderly disposition of the entire case. If either or both parties are dissatisfied with the Commission’s eventual disposition of this whole case, the entire matter may be brought before this Court on appeal.

For the reasons assigned, this case is remanded to the Public Service Commission for proceedings consistent with this opinion.

      . La.R.S. 45:123 provides:
      “No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located within 300 feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility; provided, however, that nothing contained herein shall preclude (a) any electric public utility from extending service to an applicant for service at an un-served point of connection located within 300 feet of an existing electric line of such electric public utility, unless (i) such line was not in operation on April 1, 1970 and (ii) the point of connection is located within 300 feet of an existing electric line, of another electric public utility, which line was in operation on said date, or (b) any electric public utility from extending service to its own property, or to another electric public utility for resale; and provided further that any consumer who feels aggrieved with the elec-trie service being received by him may apply to the Louisiana Public Service Commission for an order directed to his present supplier to show cause why the consumer should not be released from said supplier, and if the commission shall find that the service rendered to such consumer is inadequate and will not be rendered adequate within a reasonable time the release shall be granted.
      “As used in this section, an ‘electric line’ is a line constructed and operated for the transmission and/or distribution of electricity and which was not originally constructed for the principal purpose of preempting territory.
      “The provisions of this section shall not apply to municipally-owned or operated utilities of the State of Louisiana or to the parish of Orleans. Nothing in R.S. 45:121, 45:123, 45:1161, 45:1175 or R.S. 12:426 shall alter the rights or authority of municipalities with respect to franchise.”
      We recently explained the meaning of this statute in the case of Louisiana Power and Light Company v. Louisiana Public Service Commission, 324 So.2d 430 (La.1975).

      . Commissioner Knight dissented from the order of the Commission on the basis that “ * * * both constructions violate the principle of plant economy and should be dismantled, to avoid the allocation of territory based on an improper act and expenditure.” Although this seems to indicate that the re-conventional demand was considered and rejected by the other two members of the Commission, we decline to infer such a rejection when the order of the Commission in no way disposes of or refers to LP&L’s allegations against SLEICA.


author: TATE, Justice

text:
    TOM SLAY, INC. v. CONTINENTAL CASUALTY CO.
    No. 57249.
    Supreme Court of Louisiana.
    Jan. 9, 1976.
   In re: Tom Slay, Inc., applying for Cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipa-hoa.

Writ denied. On the facts found by the Court of Appeal the result is correct. 321 So.2d 863.

TATE, Justice

(dissenting).

The written reasons of the trial judge, rendered at the time but only included in the record after the Court of Appeal opinion, made specific and reasonable evaluations of credibility of the opposing witnesses. The Court of Appeal was in error in substituting its own evaluation of credibility for the trier of fact, after the record was supplemented for consideration for the application for rehearing.

DIXON, J., dissents for reasons expressed by TATE, J.


author: PER CURIAM.

text:
    STATE of Louisiana v. Angela McCORMICK.
    No. 56593.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      C. R. Whitehead, Jr., Whitehead & McCoy, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Following her plea of guilty and sentence for possession of marijuana, defendant was granted an appeal.

We construe the sentence to be a fine of $500 and costs or six months in jail, and supervised probation for one year. (The minutes and transcribed colloquy of the sentencing show: “Let the accused be fined $500.00 and cost and six months in the Natchitoches Parish jail. If the fine and cost are paid the jail sentence is suspended and you, the accused, are placed on supervised probation for one year. If the above period of probation is successfully completed by you, . . . fine . will not be refunded.”

The sentence is not appealable. Const. of 1974, Art. 5, § 5(D)(2):

“In addition to other appeals provided by this constitution, ¿ case shall be appeala-ble to the supreme court if (2) the defendant has been convicted of a felony or a fine exceeding five hundred dollars or imprisonment exceeding six months actually has been imposed.”

Treating the present appeal as an application under our supervisory jurisdiction (see Louisiana Supreme Court Rule 1, sec. 10), we deny the application for review.

The penalty for possession of marijuana is (R.S. 40:966 D) “fined not more than five hundred dollars and/or imprisoned in the parish jail for not more than six months.” The instant sentence does not exceed the legal limits. It is within the specific possibilities explained to defendant in the colloquy at the plea of guilty. The judge can suspend any part of the sentence. C.Cr.P. 894.- The fact that sentence provides that the fine will not be returned on completion of the probation is an attempt to avoid a problem because of the provision in C.Cr.P. 894 that upon satisfactory conclusion of the suspended sentence “the court may set the conviction aside and dismiss the prosecution,” which “shall have the same effect as an acquittal . ” The statute does not require such action by the trial judge.

On the showing made, we conclude neither that the sentence is illegal nor that the sentence is excessive, as contended by the defendant.

The application is denied.

CALOGERO, J., concurs in the writ denied.


author: MARCUS, Justice.

text:
    SOUTHERN SUGAR TRANSPORT, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 56564.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      John Schwab, Baton Rouge, for plaintiff-appellant.
    Wilbert J. Tauzin, II, Thibodaux, for defendant-appellee A. E. Gravois & Sons.
    Marshall B. Brinkley, Gen. Counsel, Baton Rouge, for Louisiana Public Service Commission, defendant-appellee.
   MARCUS, Justice.

A. E. Gravois & Sons applied to the Louisiana Public Service Commission for a contract carrier permit authorizing the transportation by motor vehicle of raw sugar in bulk for Southdown Sugars, Inc. over irregular routes in the Parishes of Terrebonne, Lafourche, St. James and St. John the Baptist, Louisiana. Oppositions were filed by Rudy Fogleman Truck Line, Inc. and Southern Sugar Transport, Inc. A public hearing was held before the Public Service Commission. Gravois amended its application to restrict the requested authorized area of transportation to points of origin west of the Mississippi River. When this amendment was made, Fogle-man withdrew its opposition to the application. After the hearing, wherein evidence was adduced, the Commission issued Gra-vois a contract carrier permit to transport raw sugar in bulk for Southdown Sugars, Inc. over irregular routes in the Parishes of Terrebonne, Lafourche, St. James and St. John the Baptist, with the restriction that the transportation be limited to origins west of the Mississippi River. Plaintiff, Southern Sugar Transport, Inc., filed suit in the Nineteenth Judicial District Court against defendant, Louisiana Public Service Commission, seeking reversal of the Commission’s order. A. E. Gravois & Sons intervened in these proceedings. The district court affirmed the Commission’s order. Plaintiff appealed from this judgment.

The Public Service Commission’s statutory authority for the issuance of certificates of public convenience and necessity and contract carrier permits, and the standards for their issuance, are set forth in La.R.S. 45:164:

No motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of public convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be' clearly shown that the public convenience and necessity would be materially promoted thereby.
No motor carrier shall operate as a contract carrier without having had a public hearing and obtained from the commission a permit to do so, which permit shall not be issued unless in the public interest and until the applicant shall have complied with the requirements of R.S. 45:161 through R.S. 45:172.

The Public Service Commission, pursuant to this provision, is authorized to issue a contract carrier’s permit when to do- so would be “in the public interest.” The statute seems to impose a greater burden of proof upon applicants for certificates of public convenience and necessity, who must also show that the public convenience and necessity would be materially promoted by the issuance of a new or additional certificate under a route where there is an existing certificate. Since Gravois applied for a contract carrier permit, this additional showing need not be made. However, Gravois has the burden of showing that the issuance of a contract carrier permit is “in the public interest.”

Prior decisions of this court have delineated the scope of judicial review of orders granting or refusing certificates of public convenience and necessity. We believe that these cases are applicable to the review of orders granting or refusing contract carrier permits. It is settled that, upon judicial review, a court must not overturn an order of the Commission granting or refusing a certificate unless it is shown that its action was arbitrary and capricious. Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644 (1965). When there is some evidence upon which the Commission could reasonably base its determination, its order is not to be disturbed. Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972).

At the hearing before the Commission, Ernest A. Gravois, a partner of A. E. Gravois & Sons, testified that his business was located in Vacherie and had, since 1972, been hauling raw sugar for South-down Sugars, Inc. from the latter’s raw sugar mills in Thibodaux and Vacherie to its refinery in Houma. In 1972, Gravois operated under a permit issued to LeBouef Truck Line, and in 1973, under a permit held by Rudy Fogleman Truck Line. In 1973, Gravois purchased from Fogleman all of its equipment for hauling raw sugar. Mr. Gravois further testified that Fogle-man indicated that he would no longer haul raw sugar for Southdown. There is further testimony in the record to the effect that LeBouef had sold its business. Hence, no duplication of existing service will result from the issuance of the permit at issue.

Furthermore, Gravois operates in close proximity to Southdown’s raw sugar mills and refinery, all of which are located within the territory covered by the permit. While plaintiff holds a certificate of public convenience and necessity and has the apparent capacity to haul raw sugar, it is located at Plaquemine in Iberville Parish and does not presently haul raw sugar in any of the parishes in which Gravois was granted a permit. Mr. Herbert C. Vaccarro of Southdown Sugars, Inc. testified at the hearing that his company had limited storage facilities and thus requires sugar to be hauled at irregular intervals during its operation (sometimes on one, two or three shifts). Therefore, it was important that transportation facilities be located nearby. He further testified that Southdown has used sugar haulers located in the immediate vicinity for twenty-five years. Fogle-mau’s withdrawal from the sugar hauling business leaves the company with no local carrier other than Gravois. Finally, Mr. Vaccarro stated that he had been satisfied with Gravois’ performance under the Le-Bouef and Fogleman permits, that its equipment would fulfill Southdown’s needs, and that Southdown supported its application.

In our view, the record fully supports the Commission’s finding that the issuance of a contract carrier permit to A. E. Gravois & Sons was “in the public interest.” Gravois has clearly met its burden of proof. Therefore, since orders of the Commission are to be accorded great weight by the courts and since there is no showing that the Commission acted arbitrarily or capriciously in this instance, we shall not disturb the judgment of the district court affirming the Commission’s order.

DECREE

For the reasons assigned, the judgment appealed from is affirmed; plaintiff is to pay all costs.

      . A certificate of public convenience and necessity is issued to a “common carrier by motor vehicle,” which is defined in La.R.S. 46:162 (4) as any person, the essential nature of whose business comprises engaging in, soliciting or accepting persons or property for transportation for hire, charge, or compensation as an employment or holding himself out as so available to the public generally and indiscriminately for such business, whether or not the business is conducted over a regular route, between fixed termini, within a defined area, or upon a regular or irregular schedule. A contract carrier permit is issued to a “contract carrier by motor vehicle,” which is defined in part as any person who transports passengers or property by vehicle for compensation or hire under special and individual contracts or agreements. La.R.S. 45:162(5).


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Katherine Faye JUNEGAIN et al.
    No. 56521.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Katherine Faye June-gain, Edward Hall, Jr., and Ronnie Lee Francois with possession of heroin with intent to distribute in violation of LSA-R.S. 40:971. The jury found Hall and Francois guilty as charged and Katherine Faye Ju-negain guilty of attempted possession of heroin. The court sentenced Hall to serve fifteen years at hard labor. Francois was sentenced to serve twenty years at hard labor, and Junegain was sentenced to two years at hard labor. They appeal their convictions and sentences, relying on three assignments of error.

On March 6, 1972, New Orleans police officers conducted a surveillance of 3923 Duplessis Street in New Orleans. Officer Ben took photographs of activities which appeared to be narcotic transactions. On March 11, 1972, pursuant to a search warrant, the officers conducted a search of the apartment and seized 96 glassine envelopes of heroin and narcotics paraphernalia, including a plastic eye-dropper, a hypodermic needle, and a bottle cap with heroin residue in it.

When the officers arrived to conduct the search, Ronald Francois and Katherine Ju-negain were in the apartment. Junegain ran out of the door but was later arrested and charged. Francois ran upstairs to a bedroom where the narcotics were found, and he was arrested there. Defendant Hall, who had left the apartment earlier, was arrested when he returned to the apartment while the officers were executing the search warrant.

ASSIGNMENT OF ERROR NO. 1

Defendants objected to the introduction at trial of State’s Exhibits Nos. 1-17 on the grounds that they were irrelevant. The exhibits included an envelope containing a glassine envelope of heroin and silver tin foil, an envelope containing a pink handkerchief and a bottle cap, seven photographs, a search warrant, some brown paper, a bundle of glassine envelopes, and three field arrest reports.

Katherine Junegain contends that with the exception of the field arrest report, none of the State’s evidence is relevant to the State’s case against her. She specifically alleges that neither the heroin nor the heroin paraphernalia were taken from her or linked to her. In addition, she neither resided at the apartment at 3923 Duplessis Street nor was identified in any of the photographs introduced at trial.

Her assertions, however, do not make the exhibits irrelevant. Officers Howard and Branham saw her at the residence when they arrived to execute the search warrant. Both officers testified that she ran out of the apartment when they appeared. She, herself, testified that she was Ronnie Francois’s girl friend and later his wife, and that she frequently went to 3923 Duplessis Street to meet Francois.

Her actions and testimony are sufficient to make the State’s exhibits relevant. The photographs offered into evidence are relevant to corroborate the officers’ testimony concerning the activities observed during their surveillance of 3923 Duplessis Street. The narcotics and narcotics paraphernalia, search warrant, and the application for the search warrant were all relevant to the prosecution of the case against defendant Junegain.

Ronnie Francois makes the same objection, contending that he did not reside at 3923 Duplessis. Francois, however, was at the address when the officers executed the search warrant. He ran upstairs to a bedroom in which the narcotics and the narcotics paraphernalia were found. There was some evidence that the room Where he was found was his bedroom.

He also contends that because he was not in any of the photographs offered in evidence, the photographs were not relevant. We disagree. The photographs accurately depict activities witnessed by police officers at the apartment where the defendants were seen and the narcotics were found. Although defendant Francois was not photographed, the photographs are relevant to show the activities which took place and to corroborate the testimony of the police officers.

Hall objects to the introduction of State’s Exhibits 8 and 9, which are photographs depicting what the testifying officers believed to be a narcotics transaction. Although the unknown black male in the photographs is not a defendant in this case, the photographs are nonetheless relevant. They corroborate the testimony of the State’s witnesses concerning narcotics transactions at that location.

LSA-R.S. IS :435 provides :

“The evidence must be relevant to the material issue.”

Applying this statute in State v. Moore, La., 278 So.2d 781 (1973), we stated:

“The impact of this bland little sentence is easily overlooked. Its English counterpart is: ‘. . . nothing may be given in evidence which does not directly tend to the proof or disproof of the matter in issue.’ (Emphasis added.) Arch-bold, Pleading, Evidence & Practice in Criminal Cases, 34th Ed., §§ 1015, 1016. Correctly interpreted, R.S. 15:435 means that, in a criminal case, no evidence shall be admitted that is not relevant to (tending to prove or disprove) the matter in issue.”

On the question of relevancy of evidence, much discretion is vested in the trial judge. State v. Pierre, 261 La. 42, 259 So.2d 6 (1972). A ruling of the trial judge as to relevancy should not be disturbed in the absence of clear showing of abuse of discretion. State v. Davis, 259 La. 35, 249 So.2d 193 (1971). We conclude that there was no abuse of discretion here.

The assignment of error is, therefore, without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendants assign as error the trial court’s sustaining of a hearsay objection. An investigator for the Orleans Parish Indigent Defender Program was testifying concerning information which defendant Hall furnished to him. Anticipating hearsay testimony, the State objected. Defense counsel asked the witness to read the address given by Hall from the investigative report. The objection was reurged, and the court sustained the objection.

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. State v. Varnado, La., 310 So.2d 111 (1975); State v. Gonzales, 258 La. 103, 245 So.2d 372 (1971); Pugh, Louisiana Evidence Law, pp. 388—389 (1974). As a general rule, hearsay is inadmissible as evidence. LSA-R.S. 15:434.

The portion of the report sought to be introduced was nothing more than an out-of-court statement by the defendant Hall,- who did not testify, offered to prove his place of residence. Hence, it was hearsay.

Defendants argue, however, that since it was part of an investigative report in the office of Orleans Parish Indigent Defender Program, it was a business record admissible under an exception of the hearsay rule. We think not.

This Court has recognized the admissibility in evidence of a regular entry made in the course of business under narrowly defined circumstances. See State v. Graves, 259 La. 526, 250 So.2d 727 (1971). Assuming arguendo that the document otherwise qualifies, we note that the entrant, the investigator, was available to testify. See Builliard v. New Orleans Terminal Co., 185 La. 924, 171 So. 78 (1936); Pugh, Louisiana Evidence Law, pp. 482-483 (1974); McCormick on Evidence (2nd Ed.) § 311, p. 728 (1972). Moreover, the testimony does not reflect that the entrant had first-hand knowledge of the place of residence. If so, he could have testified as to the place of residence himself. See McCormick, supra, § 310, p. 725. For these reasons alone, the investigative report does not qualify as an admissible business record.

We conclude that these assignments of error are without merit.

For the reasons assigned, the convictions and sentences are affirmed.


author: TATE, Justice. MARCUS, Justice SUMMERS, Justice SANDERS, Chief Justice

text:
    Daniel F. LOESCHER, Sr., Plaintiff-Appellant-Relator, v. George PARR and State Farm Fire and Casualty Company, Defendants-Appellees-Respondents.
    No. 56402.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Dissenting Opinion of Sanders, C. J., Dec. 22, 1975.
    Rehearing Denied Jan. 16, 1976.

      Rudolph R. Schoemann, New Orleans, for plaintiff-appellant-relator.
    Dale E. Branch, Seal, Lee, Branch & Brown, Bogalusa, for defendants-appel-lees-respondents.
   TATE, Justice.

The plaintiff Loescher’s automobile was demolished when a tree from a neighboring lot fell across it. He sues Parr, the owner of the neighboring lot, and Parr’s homeowner’s liability insurer (State Farm).

The court of appeal affirmed the district court’s dismissal of the suit, holding that no negligence on Parr’s part is proven. 312 So.2d 347 (La.App. 1st Cir. 1975). We granted certiorari, 313 So.2d 833 (La. 1975), to consider the correctness of the holding that the owner of a diseased tree cannot be held for damage caused to a neighbor (who is himself without fault) by the fall of the tree because of its diseased condition.

The Facts

The tree which fell was a magnolia tree some sixty feet high. From the outside, the tree did not appear to be obviously diseased. However, in fact, the magnolia was 90% rotted out and hollow beneath its outside structure of the bottom portion of the trunk. The tree was situated on the defendant Parr’s home lot six feet from his home.

At 3:00 a. m. the tree fell across the property line and onto the plaintiff Loescher’s Cadillac on the neighboring lot. The vehicle was parked in the parking lot of the apartment house into which Loescher had moved three weeks earlier.

The primary cause of the fall was the diseased condition of the tree. The weather was windy, of a nature that occurs in the vicinity about thirty times a year; but the wind was not even of storm nature. The only tree that was damaged or fell in the town was the present one.

The Legal Issue

The trial and intermediate courts held that Parr could not be held liable for the fall of his diseased tree in the absence of proven negligence on his part. These previous courts accepted his testimony that, from the outside, the tree did not appear to be diseased. They rejected testimony, as mistaken, of a tree surgeon that, shortly before the accident, he had warned the defendant’s wife of the defective condition of the tree and recommended its removal.

We are not prepared to hold that the trial court committed error in its appreciation of the facts. Canter v. Koehring, 283 So.2d 716 (La.1973). Thus, we accept the factual holding that the tree was internally diseased but that the owner could not reasonably realize its defective condition, although such defect of the tree constituted an unreasonable hazard of injury to those upon whom it might foreseeably fall.

The issue remains whether, nevertheless, the owner of a tree with such a defect may be held liable to others injured by reason of such defect, even in the absence of negligent conduct or inattention on his part.

The plaintiff argues that the owner is liable for damage caused by the defect of a thing in his custody. Civil Code Article 2317. The plaintiff further contends that, at any rate, the owner should be held liable for the fall of a diseased tree, analogously to the strict liability of an owner of a building for its fall due to a structural defect or to his neglect to repair it. Civil Code Articles 670, 2322.

Liability of an Owner for the Fall of His "Building”

At the least, the liability of an owner for harm caused because of a defect in his building is illustrative of the strict liability here sought to be imposed upon the owner of a tree for harm caused through its defect.

Under Louisiana law, founded on Articles 670 and 2322, the owner of a building is liable to a neighbor or passer-by injured through the fall of his building due either to a vice in its original construction or to his neglect to repair it. His fault is founded upon the breach of his obligation to maintain or repair his building so as to avoid creation of risk of undue injury to others.

Neither ignorance of the condition of the building, nor circumstances that the defect could not easily be detected, absolve the owner from his liability for damages so caused. He is absolved from such liability only if the thing- owned by him falls, not because of its defect, but rather because of the fault of some third person or of the person injured thereby, or because the fault is caused by an irresistible cause or force not usually foreseeable, Article 3556(14), (15) (usually, an act occasioned exclusively by violence of nature without the interference of or contribution by any human agency).

See: Klein v. Young, 163 La. 59, 111 So. 495 (1927); Thompson v. Commercial National Bank, 156 La. 479, 100 So. 688 (1924); Barnes v. Beirne, 38 La.Ann. 280 (1886); Camp v. Church Wardens, 7 La.Ann. 321 (1852); Crawford v. Wheless, 265 So.2d 661 (La.App. 2d Cir., 1972); Anslem v. Travelers Insurance Company, 192 So.2d 599 (La.App. 3d Cir., 1966); Green v. Southern Furniture Company, 94 So.2d 508 (La.App. 1st Cir., 1957); Comment, 42 Tul.Law Rev.. 178 (1967).

In arguing for similar liability here, the plaintiff Loescher points out that a tree is an immovable thing considered as part of the land to which it is attached. Articles 462, 465.

If the tree can be considered a “building”, its fall is within the strict liability envisioned by Articles 670, 2322. Davis v. Royal-Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1970). See also: Cothern v. La Rocca, 255 La. 673, 232 So.2d 473 (1970). However, as the reasoning of the latter decision indicates, under our jurisprudence there is substantial doubt as to whether a tree can be considered a “building” for purposes of the owner’s strict liability under Articles 670, 2322.

Nevertheless, as will be set forth more fully below, Article 2317 (to be quoted below) provides for the liability of an owner of things for damages caused through their defect. In the scheme of the Civil Code of Louisiana, which is based upon the scheme of the French Civil Code, this article rather than Articles 670 and 2322 is the code basis of the fault of an owner in possessing and failing to properly maintain a tree on his property which, through its defect, falls and causes injury to a neighbor or passer-by who is himself without fault.

We pretermit, therefore, whether by analogy the strict liability of an owner for damages caused through a defect of buildings on his premises might not also include a liability for damages caused by fault or ruin of any other immovable part of his premises, such as a tree. But see Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).

The "Fault” Scheme of the Civil Code

Articles 2315 through 2324 of the Louisiana Civil Code comprise the code’s entire chapter of legal principle regulating offenses and quasi-offenses.

The underlying principle is provided by Article 2315: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * ” The remaining articles constitute amplifications as to what constitutes “fault” and under what circumstances a defendant may be held liable for his act or that of a person or thing for .which he is responsible.

Article 2316 provides for delictual (tort) responsibility for negligent acts or omissions: “Every person is responsible for the damage he occasions not merely by his act, but his negligence, his imprudence, or his want of skill.” However, negligence is not necessarily a basis for the obligation to respond in damages for harm caused by-persons or things for which we are responsible as provided by the subsequent Articles 2317 through 2322.

We have already noted that the owner of a building is held to strict liability under Article 2322 for damage caused by a defect in his building, without regard to his own personal negligence. Likewise, under Article 2320 it has long been settled that a master (employer) is liable for the harm caused through his servant’s (employee’s) unreasonable creation of risk of injury to others (negligence), despite the freedom from personal negligence of the master thus vicariously held liable. See Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), citing long-established jurisprudence.

Recently, upon examination of the code scheme of fault liability, we held that under Article 2318 the parent of a minor child is liable for the damage caused by the child’s conduct which creates an unreasonable risk of injury to others, even though the parent himself is not personally negligent and the child is too young to be personally negligent. Turner v. Bucher, 308 So.2d 270 (La.1975), following Mullins v. Blaise, 37 La.Ann. 92 (1885) and overruling intervening jurisprudence. Likewise reverting to earlier jurisprudence, in Holland v. Buckley, 305 So.2d 113 (La.1974) we held that under Article 2321 the owner of an animal which creates an unreasonable risk of injury to others is liable for the harm done by that animal because of its deficient conduct, even though the owner himself was not personally negligent.

The principle of legal fault thus recognized under Articles 2318, 2320, 2321, and 2322—and indicated as applicable under Article 2319—, it is argued, should also be held to apply to the liability under Article 2317 of the guardian (in this case, the owner) of a thing for damages caused by its defect.

Summary of Principles of Legal Fault under Articles 2318, 2320, 2321 and 2322

To summarize the principle of legal fault thus already recognized in favor of an injured person himself without fault:

When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others.

The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom-society allots the supervision, care, or guardianship (custody) of the risk-cr'eating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.

This jurisprudence recognizes that the injured person must prove the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice. Once this is proved, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.

The legal fault thus arising from our code provisions has sometimes been referred to as strict liability.

The plaintiff argues that Article 2317 by its express terms statutorily mandates these principles of legal fault as applicable when an innocent neighbor or bystander is damaged because of the vice or defect of a thing (the tree) ; just as we have already recognized these principles of legal fault as applicable and mandated by the companion articles (2318, 2320, 2321, 2322) in the series mandating legal fault for the acts of persons or things for which we are responsible.

Liability of the Owner-Guardian of a Thing under Article 2317

Article 2317 provides: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of things which we have in our custody. This however, is to be understood with the following modifications.”

This provision of our 1870 civil code was also found in our civil codes of 1808 and 1825. Civil Code 1808, p. 320, Art. 20, par. 1; Civil Code of 1825, Article 2296. In French text, it is identical to French Civil Code Article 1384(1) (which, however, does not contain the last sentence).

The provision that one is responsible for damage “which is caused by the act- . of things which we have in our custody” is a translation of the provision of the French article, taken verbatim from the French Civil Code, that one is responsible for damage “qui est cause par le fait . . . des choses que l’on a sous sa garde.” See Article 2317 La.C.C.Comp.Ed. in 17 West’s LSA-C.C. p. 17 (1972).

Articles 2315 through 2322 express the same concepts and represent the same scheme as French Civil Code Articles 1382 through 1386, of which they are to a large part verbatim translations. See Articles 2315-17 La.C.C.Comp.Ed. in 17 West’s LSA-C.C. pp. 14-21 (1972). In this context, in applying the French verbatim counterpart code provision, the liability of the guardian of a thing for damages caused through the vice or defect of the thing has been interpreted as providing for liability of the guardian without personal negligence on his part, his legal fault (as also in the case of the owner of a building or of an animal) being based upon the breach of his legal obligation to keep his thing in such condition or in such control that it does no damage to others. These interpretations have been reached not only in France but also in Belgium and in Quebec, which like Louisiana adopted a civil code scheme of articles and concepts based almost verbatim on the articles of the French Civil Code.

See: Tunc, Louisiana Tort Law at the Crossroads, 48 Tul.L.Rev. 1111 (1974); Starck, The Foundation of Delictual Liability in Contemporary French Law, 48 Tul.L.Rev. 1043 (1974); Stone, Liability for Damage Caused by Things, 11 International Encylopedia of Comparative Law, chapter 5, nos. 24-29 (1970). See also H. L. & J. Mazeaud, Traite Theorique et Pra-tique de la Responsibilitie Civile, Volume 2, Nos. 1009-18, 1138-1273 (6th ed. 1970) ; Verlander, We are Responsible . . . , 2 Tulane Civil Law Forum, No. 2 (1974).

We find no reason why Civil Code Article 2317 should not be interpreted as incorporating a similar concept of legal fault. As with the French, Canadian, and Belgian counterparts — each found in the same code scheme of delictual liability- — , the code provision for the liability of the owner of a thing for damages caused by its vice would be unnecessary if the basis of code liability thus expressly provided were only for negligence, a basis already provided by the preceding Article 2316 (and its preceding counterparts in the French, Canadian, and Belgian codes).

Further, as noted, we have previously adopted the concept of legal fault without personal negligence of a parent for the deficient act of his child (Article 2318), of an employer for the deficient act of his employee (Article 2320), of an owner for the damage caused through the deficient act of his animal (Article 2321), and of an owner for the damage caused by the defect of his building (Article 2322). It is logically consistent and in accord with the scheme of delictual responsibility represented by these companion code articles to hold that, similarly, Article 2317 embodies the concept of the legal fault of the guardian of a thing for the damage caused by the defect of his thing.

The implication to the contrary in Cartright v. Firemen’s Insurance Co., 254 La. 330, 223 So.2d 822 (1969) is inconsistent with the earlier jurisprudence interpreting Articles 2320 and 2322, cited above, and with the later jurisprudence interpreting Articles 2318 and 2321, also cited above (as well as with the interpretations by other civilian jurisdictions of comparable provisions of their civil codes set in similar code context as Louisiana’s Article 2317). The interpretation of Article 2317 we reach today is more in accord with jurisprudence interpreting companion code articles and with the functional intent of Article 2317 within our Civil Code’s general scheme of fault liability.

The Fall of a Tree

With regard to liability for the fall, the tree, is a thing, see Civil Code Articles 462, 465. In civilian jurisdictions, such as France, Belgium, and Spain, the owner of a tree is liable for the fall of a tree due to its disease or decay, without negligence on the owner’s part. Stone, cited above, Nos. 81-89. Mazeaud, cited above, No. 1269. See also Demogue, Responsabilite pour la chute d’un arbe, Rev.Trim.Dr.Civ. 345 (1936). These authorities note that the owner may be liable, though the tree’s fall results also from an external force such as a wind or an accident in the course of felling it.

See also French decisions, such as: Civ., June 11, 1936, S. 1936.1.346, Gaz.Pal. 1936.-2.265; Civ., Dec. 1946, S. 1947.1.46, Gaz. Pal. 1947.1.129; Civ., Jan. 5, 1962, D. 1962, somm. 98; Civ., May 12, 1966, D. 1966.700, Note by Azard; Chambery, June 21, 1961, D. 1961.710.

Our brothers of the Second Circuit analogously have held a landlord liable to his tenant for damages caused by the fall of a tree, although it fell without negligence on the landlord’s part. Pollard v. Roberts, 306 So.2d 801 (La.App.2d Cir. 1975). The liability imposed was essentially founded upon the strict liability of an owner-landlord to his tenant for vices or defects in :he premises, Civil Code Articles 2692, 2695, a liability similar in nature to the strict liability of an owner to a neighbor or passerby for damage caused by vices or defects of his building.

Application of these Principles to the Present Facts:

In the present case, the plaintiff neighbor has proved (a) that the thing (tree) which caused the damage was in the care (custody) of the defendant owner, (b) the defect or vice of the tree, and (c) that his damage occurred through this defect or vice. The owner-guardian of the defective tree is therefore liable for his legal fault in maintaining the defective tree and in preventing its vice from causing injury, unless he prove that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.

The owner contends that the high wind of the night constituted such an intervening force exculpating him from liability. However, the force contemplated by the jurisprudence is an event which happens from an irresistible cause or force not foreseeable, usually a vis major or act occasioned exclusively by the violence of nature without the contribution by legal fault of any human. Article 3556(14), (IS); Thompson v. Commercial National Bank, 156 La. 479, 100 So. 688 (1924); Barnes v. Beirne, 38 La.Ann. 280 (1886).

Here, the wind, although high and gusty, wás not so abnormal as to be unforeseeable. The wind was not, for instance, of hurricane force, so as to permit its being classified as a reasonably unforeseeable violent manifestation of nature causing the damage independent of any defect of the tree, since a healthy tree as well as a diseased one might be overblown.

The defendant owner-guardian of the tree, therefore, is not exculpated of liability, for the wind was not under our code a fortuitous event. The gust of wind which contributed to the fall of the diseased tree was not unforeseeable in the vicinity, nor was it of irresistible force. No showing is made that the fault of the victim or of any third person contributed to (i. e., was a substantial factor in) the fall of the tree.

The record establishes the damages sustained at .$2,741.43, the amount of the estimate and incidental costs of towing and storage. The plaintiff claims that a greater loss of value is proved, but we agree with the defendant that in this instance the record does not preponderantly support a great award.

Decree

For the reasons assigned, we reverse the judgments of the district court and of the court of appeal. We render judgment in favor of the plaintiff, Daniel P. Loescher, Sr., and against the defendants, George Parr and the State Farm Fire and Casualty Company, holding these defendants solidarity liable for the sum of Two Thousand Seven Hundred Forty-One and 4S/ioo ($2,-741.43) Dollars, together with legal interest from date of judicial demand until paid and for all costs of these proceedings.

Reversed and rendered.

BOLIN, J., concurs.

MARCUS, J., dissents and assigns reasons.

SUMMERS, J., dissents and assigns reasons.

SANDERS, C. J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I respectfully dissent.

Articles 2315 and 2316 of the Civil Code announce the general rule of delictual liability, that is, one is obliged to repair the damage he occasions to another through his own act or failure to act. Recovery under these articles is allowed only when the author of the damage is proved to be at fault. In addition to damage caused by our own act or failure to act, we are responsible for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. La. Civil Code art. 2317 (1870). Articles 2318-22 delineate the rules of civil responsibility for the damages caused by the minor children and wards, insane persons, employees, students, animals, and buildings in one’s custody. Recently, this court held that pursuant to articles 2318 and 2321 the responsible party is liable for the damage caused by his minor children or animals whether or not he was at fault. Turner v. Bucher, 308 So.2d 270 (L.1975); Holland v. Buckley, 305 So.2d 113 (La.1974). Even assuming the correctness of these decisions, which were themselves departures from settled, considered Louisiana jurisprudence, I cannot agree with the result reached by the majority in this case.

Article 2317 (the counterpart of French Code civil art. 1384, par. 1) does not, in my view, decree that one is liable despite absence of fault for the damage occasioned by all things or persons in his custody, as the majority states. There is no doubt that, at the time of its redaction in 1804, article 1384, par. 1 had for its only purpose to announce certain special responsibilities for the damage caused by certain things: animals (art. 1385) and buildings (art. 1386). In other cases of damages caused by things, the victim had to prove the fault of the person (in “custody” of the thing) sought to be held responsible. In what the late Boris Starck, Professor of Civil Law at the University of Paris, has described as an “audacious interpretation” of French Code civil article 1384, par. 1, the Court of Cassation held in 1896 that the article could be applied to the acts of things other than those later enumerated. Cass, civ.', June 16, 1896, S. 1897.1.17. Hence, “[tjhis text, isolated from the others that, in truth, it was intended to introduce, was taken as having posited an autonomous rule: One is responsible for the act of things that are in one’s custody (care); therefore, the victim was excused from proving the fault of the party responsible.” Starck, The Foundation of Delictual Liability in Contemporary French Law: An Evaluation and a Proposal, 48 Tul.L.Rev. 1043, 1050 (1974) (emphasis in original). Prior to this decision, the principle that liability without fault could be imposed for the damage caused by things in one’s custody was strictly interpreted, in accordance with the redactors’ aforesaid original intent. See 2 H. L. & J. Mazeaud, Traite theorique et pratique de responsabilite civile, nos. 1014, 1141 (6th ed. 1970).

In any event, the Louisiana Civil Code expresses even more clearly than the French Code civil the limitations in the principle that article 2317 announces. For article 2317 states that the principle establishing responsibility for the' acts of persons for whom we are answerable and for things we have in our custody is to be understood with the following modifications. This sentence, absent from the French text and Louisiana Civil Code of 1808, was added by the redactors of the Civil Code of 1825. The “following modifications” are the next five articles of the Code, which enumerate the specific classes of persons or things for whose damage one is responsible regardless of his lack of fault. Therefore, article 2317 was intended by the redactors of the Civil Code of 1825 to be a transitional article, rather than an autonomous rule of civil liability.

Because “trees” are not among the “things” named in articles 2321-22, plaintiff is not entitled to recover damages under article 2317. Nor can plaintiff recover under articles 667 or 670, as he contends. Article 667 imposes liability without fault upon proprietors for their constructions or activities. Chaney v. Travelers Insurance Co., 259 La. 1, 249 So.2d 181 (1971). Defendant did not conduct any activities on his property resulting in plaintiff’s damages. Article 670 imposes liability without fault only for the damages caused by the fall of buildings, or a material part thereof, to neighbors or passengers.

The only articles involved in this case are 2315 and 2316. The court of appeal found, as a factual matter, that defendant committed no act that contributed to the tree’s disease, and that he was not aware before its collapse of its defective condition. The majority does not dispute these findings of fact. Clearly, defendant was not at fault. Therefore, no recovery is possible under these articles.

Accordingly, I would affirm the judgments of the trial court and the court of appeal, dismissing plaintiff’s suit at his cost.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by Mr. Justice Marcus.

SANDERS, Chief Justice

(dissenting).

I agree with the well-reasoned dissent of Mr. Justice Marcus and adopt his views as my own.

      . Article 670 provides:
      “Elvery one is bound to keep his buildings in repair, so that neither their .fall, nor that of any part of the materials composing them, may injure the neighbors or passengers [passers-by], under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.”

      . Article 2322 provides:
      “The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it it the result of a vice in its original construction.”

      . Article 2317 provides for liability for damages caused by a person for whom we are responsible or by a thing in our custody. Article 2318 provides for liability of a parent or tutor for acts done by a minor for whom he is responsible. Article 2319 provides for liability of a curator for damage done by his interdict. Article 2320 provides for the liability of an employer for the act of his employee in the exercise of the employment. Article 2321 provides for the liability of an owner of an animal for harm done by it. Article 2322 provides for the liability of an owner of a building for damage occasioned by its fall.

      . This concerns the liability of a curator for the act of an insane person under his care. See: Turner v. Bucher, 308 So.2d 270, 275-76 (1975); Scott v. McCrocklin, 29 So.2d 619 (La.App. 2d Cir. 1947), Noted, 8 La.L.Rev. 144 (1947); Yancey v. Maestri, 155 So. 509 (La.App.Orl.1934); Stone, Tort Doctrine in Louisiana, 17 Tul.L.Rev. 159, 189-92.

      . The “modifications” are set forth by the “following” Articles 2317-2322. Thus, an employer is answerable for the damage occasioned by his servants “in the exercise of the functions in which employed.” Article 2320. The owner of an animal is answerable for the damage it causes, unless “the animal had been lost, or had strayed more than a day” in which case a different measure of responsibility is provided. Article 2321. The owner of a building is reponsible for the damage caused “by its ruin.” Article 2322. The other articles in the series do not provide any other modification of the liability of the owner of other things for the damage they cause.

      . At this point, however, we should note that the English translation of “sous sa garde” as “in our custody” does not fully express the concept of the “garde” of a thing — the legal responsibility for its care of keeping — , so that one may lose the custody of a thing without losing its “garde”. H. L. & J. Mazeaud, Traité Théorique et Pratique de la Respon-sabilité Civile, Volume 2, No. 1160 (6th ed. 1970) ; Verlander, We are Responsible . . . , 2 Tulane Civil Law Forum No. 2, p. 61 (1974).
      At Note, Things in One’s Custody, 43 Tul. L.Rev. 907, 912 (1969), a French legal dictionary is quoted as defining “garde” as: “Obligation imposed by the law on the proprietor of a thing or of an animal or on the one who avails himself of it to prevent this thing or this animal from causing damage to others.” It is there noted that French doctrinal writers afford the term an even broader definition.

      . In Verlander, We are Responsible . . . , 2 Tulane Civil Law Forum, No. 2, p. 64 (1974), which contains a perceptive and thorough analysis of the French, Quebecois, and Louisiana interpretations, it is suggested : “ [T] he things in one’s care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. This relationship will ordinarily be associated with ownership, but the guardianship will also belong to the bailee, the lessee, the usufructuary, the borrower for use and the repairmen, among others. It will not belong to the agent or the mandatory, the employee or the servant, or to anyone else for whom there is a responsible principal. The owner may transfer the guardianship by transferring the thing to another who will bear such a relationship to the thing as to himself have the care of it. He may also lose the care of this thing, principally by the theft of the thing.”

      . For that reason, I dissented in both cases. Likewise, I must dissent to the overruling by this case of Cartwright v. Firemen’s Insurance Co., 254 La. 330, 223 So.2d 822 (1969).


text:
    STATE of Louisiana, Appellee, v. Leroy BELL, Appellant.
    No. 56524.
    Supreme Court of Louisiana.
    Dec. 8, 1975.

      Edward G. Koch, Jr., New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.
   TATE, Justice.

The single issue raised by this appeal is the validity of an enhanced sentence imposed upon the defendant Bell as a second offender, as authorized by La.R.S. 15:529.-1, our multiple (habitual) offender law.

Thé defendant was convicted in September, 1974, of possession of barbiturates. La.R.S. 40:968C. On October 1, 1974, he was sentenced to five years at hard labor and sent to the state penitentiary.

When he took the stand in this September trial, he disclosed a prior conviction for theft in the same parish four years before. He had been convicted in October, 1970, of simple robbery, La.R.S. 14:65, and sentenced to two years in the parish prison.

On October 15, 1974, two weeks after his present initial narcotics sentence, a bill of information was filed charging defendant as a second offender La.R.S. 15:529.1. This charge, of course, was based upon the present (narcotics) conviction as having been for a second offense committed within five years after the first (robbery) conviction.

Due to difficulties in securing his return from the penitentiary, he was not tried upon this enhanced-penalty charge until December 3, 1974, or two months after the first conviction. On March 18, 1975, his initial five-year sentence was set aside and he was re-sentenced, as a second offender, to eight years at hard labor.

(1)

The only substantial argument raised by the single assignment of error concerns whether the state is precluded from charging the accused as a multiple offender because of its failure to do so until after he had commenced serving the sentence on the latest (narcotics) conviction, where the prosecutor knew of this earlier conviction before the sentence for the second offense wus imposed.

Under the statute, a district attorney is authorized to charge a defendant as a multiple-offender “If, at any time, either after the conviction or sentence, it shall appear that a person convicted of a felony” has previously been convicted of another felony. La.R.S. 15:529.1D. We have held that, under the statute, the prosecution of a convicted defendant to secure enhanced punishment as a multiple offender must at the latest be instituted before completion of the sentence initially imposed in the latest conviction. State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974).

As Williams noted, the institution of such a prosecution is further governed by constitutional guarantees of a speedy trial to a defendant. Sixth Amendment, United States Constitution; Art. 1, Section 16, Louisiana Constitution of 1974. Accordingly we have held that a multiple-offender bill must be filed within a reasonable time after the prosecution knows that the defendant has a prior felony record. State v. McQueen, 308 So.2d 752 (La.1975). See also La.C.Cr.P. art. 874: “Sentence shall be imposed without unreasonable delay.”

When a district attorney knows of a prior felony conviction, undoubtedly the better practice is for him to file the multiple-offender bill (after conviction of the latest crime) before imposition of the sentence which is to be enhanced. American Bar Association Standards Relating to Sentencing Alternatives and Procedures, Standards 3.3(b) and 5.5(a).

As Commentary (b) of the latter standard notes, reasons of judicial economy and of correctional policy support a single sentencing hearing at which all of the factors supporting an enhanced sentence and its length should be finally determined and known to the offender before his imprisonment commences.

Nevertheless, under the circumstances here shown, we are not prepared to hold that the delay in instituting the multiple-offender prosecution was so unreasonable as to preclude the imposition of the enhanced penalty. Further, no prejudice is claimed or shown by the slight delay in ultimate sentencing so occasioned.

We therefore do not find merit to the contention urged.

(2)

In brief, counsel additionally argues that the first conviction was uncounselled and thus could not serve as a valid sentence for purposes of enhanced punishment as a second offender. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). We note that no objection was raised in the present proceedings as to this basis for the alleged use of the first conviction.

We pretermit whether, for that reason, the right to raise this issue on this appeal was waived. Cf. La.d.Cr.P. art. 841. In the present record, the exhibits proving the first conviction affirmatively show that the accused was represented therein by appointed counsel. Accordingly, we find no merit to the contention thus urged.

Decree

For the reasons assigned, we affirm the conviction and sentence.

Affirmed.

      . No contention is raised that the defendant failed to appeal the later (narcotics) conviction because he had accepted the lighter sentence in a mistaken reliance upon the state’s failure to seek a heavier sentence by further charging him as a second offender. At any rate, the second-offender charge was filed before the delay for appealing the first sentence had expired.

      . On the initial sentencing the defendant received the maximum penalty of five years. La.R.S. 40:9680. We are not faced with a situation where, in imposing an initial sentence, the trial judge had already taken into consideration the earlier convictions; if he had done so in the present instance, the trial judge was not precluded under the statute from re-imposing the same sentence on the multiple-offender conviction, since five years is an excess of the minimum (one-third) of the longest term imposable for a first conviction, mandatorily required by the statute. La.R.S. 15:629.1(A)(1). See also Footnote 1 above.


author: SANDERS, Chief Justice. BOLIN, Justice

text:
    LIGHTING, INC. v. TRANS-GULF CONSTRUCTION COMPANY, INC., et al.
    No. 56038.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Herschel L. Abbott, Jr., Roy C. Cheat-wood, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-applicant.
    Trudy H. Oppenheim, Garon, Brener & McNeely, New Orleans, for plaintiffs-respondents.
   SANDERS, Chief Justice.

Trans-Gulf Construction Company, as contractor, and Lodian Enterprises, Inc., as owner, entered into a written contract for the construction of a motel, with Travelers Indemnity Company as surety on the contractor’s bond. Plaintiff, Lighting, Inc., furnished electrical supplies to a sub-contractor during the course of construction. When Lighting was not paid, it brought suit against the contractor, the owner, the sub-contractor, and the surety. No service of citation was made on the owner or subcontractor. The contractor did not answer, and a preliminary default was entered against it. The case went to trial on the pivotal issue of whether the demand against the surety for the cost of the electrical supplies was barred by prescription.

The district court rendered judgment in favor of plaintiff against the surety, holding that since the formal acceptance of the work by the owner was prematurely filed, the one-year statutory prescription never began to run. With a divided court, the Court of Appeal affirmed the judgment. See La.App., 307 So.2d 646. On application of the surety, we granted writs to review the Court of Appeal judgment. La., 310 So.2d 838. We reverse the judgment and dismiss the suit.

The present action is one against the surety on a contractor’s bond. The action is governed by LSA-R.S. 9:4814, which provides in pertinent part:

"B. . . . Any action against the surety must be brought within one year from the registry of acceptance of the work or of notice of default of the contractor. . . .
"C. Before any person having a direct contractual relationship with a subcontractor but no contractual relationship with the contractor shall have a right of action against the contractor or the surety on the bond furnished by the contractor, he must record his claim as provided in R.S. 9:4802 or give written notice to said contractor within thirty days from the recordation of the notice of acceptance by the owner of the work or notice by the owner or default, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor or service was done or performed. . . . ”

LSA-R.S. 9:4802.1 provides;

“Whenever any contract for the repair, reconstruction, erection, construction or improvement of any work on immovable property is entered into in accordance with the provisions of R.S. 9:4802, the owner may have recorded in the office of the Clerk of Court or the recorder of mortgages of the parish where work is executed an acceptance of said work, or of any specified area either on completion of the work accepted, or, at its discretion, upon substantial completion of the work or any specified area thereof, upon recommendation of the architect or engineer of the owner. ‘Substantial completion’ is defined for the purposes of this Chapter, as the finishing of construction, in accordance with contract documents as modified by any change orders agreed to by the parties, to the extent that the owner can use or occupy the works or use or occupy the specified area of the works for the use for which it was intended. The rec-ordation of an acceptance in accordance with the provisions of this Section upon substantial completion shall be effective as an acceptance for all purposes under this Chapter.” (Emphasis supplied.)

Under the above statutes, a furnisher of materials to a sub-contractor, who has no contractual relation with the contractor, has a right of action against the contractor’s surety only if he records his claim within thirty days after recordation of the acceptance. The furnisher of materials must then bring suit within one year from the registry of the acceptance.

In the present case, the owner recorded a written acceptance of the work on February 16, 1971. Plaintiff recorded its claim on March 29, 1971. Suit was brought on February 2, 1973. It is readily apparent, therefore, that absent an overriding legal exception, neither the claim nor the suit was timely filed. Plaintiff instituted its suit almost two years after the recordation of the acceptance.

The plaintiff contends, however, that the owner’s acceptance was recorded before substantial completion of the work and that the statutory prescription never began to run.

The Court of Appeal found that the work was not substantially complete on the date of the registry of the acceptance. It held that the acceptance was null and that prescription never began to run, declining to consider evidence that the work in any event was substantially complete three days after the acceptance. The Court of Appeal cited Capitol Hardware Co., Inc. v. Allen Construction Co., La.App., 248 So.2d 396 (First Cir., 1971).

Under the statute, a building is considered substantially complete when the construction in accordance with the contract has proceeded to a point that the owner can occupy the building for the intended use. Here, the factual question of whether the motel was substantially complete on February 16, 1971, the date of registry of the acceptance, is a close one. Nonetheless, assuming that substantial completion had not been achieved, as the Court of Appeal found, the project was substantially complete no later than February 24, 1971.

On February 19, the motel had a full opening staff of twenty. The staff included a manager, desk clerks, maids, housekeepers, and maintenance personnel. The initial occupational license for business operations commenced February 19, 1971. The Sales Tax Registration Certificate also had an effective date of February 19, 1971. The Jefferson Parish Department of Safety issued a certificate on February 19, 1971, that all electric wiring and equipment had been inspected and that no violations of the Jefferson Parish Electrical Code had been noted. A small delivery of glassware for the bath fixtures occurred on February 24, 1971, but the invoice fixes its value at less than ten dollars.

The holding of the Court of Appeal that a premature acceptance is null and that, as a result, the statutory prescription never commences to run has no support in law. It is true that Capitol Hardware Co. v. Allen Construction Co., supra, a decision of the intermediate Court of Appeal, made such a pronouncement, but it cited no authority for erasing the legal consequences that normally flow from the actual completion of a structure.

We find nothing in the statute which allows an owner’s premature acceptance to wipe out the one-year prescription in favor of the surety. To impose such a penalty on the surety should require clear statutory authority.

An acceptance is a notice of completion. It becomes operative when it conforms to the facts of construction. We think the better view is that a prematurely recorded acceptance is inchoate and becomes operative when the building is complete or substantially complete. At that time, the two essential factors concur: rec-ordation and completion. To hold otherwise would mean that the misjudgment of the owner in assessing substantial completion, though in good faith, would defeat the prescription in favor of the surety contrary to the legislative purpose.

We hold, therefore, that the owner’s acceptance became effective on February 24, 1971. Since the plaintiff’s suit was filed more than a year later, it was not timely.

For the reasons assigned, the judgment of the Court of Appeal is reversed. Judgment is rendered in favor of defendant, Travelers Insurance Company, and against the plaintiff, Lighting, Inc., sustaining the peremptory exception and dismissing plaintiff’s suit at its cost.

BOLIN, Justice

(dissenting).

I think the ruling of the District Court and Court .of Appeal are correct.

      . Contrast LSA-R.S. 9 :4816, subd. B, which provides that, under the special circumstances set forth in that section, an affidavit by the owner and contractor and the acceptance by the owner shall be deemed “conclusive evidence” of the date of completion.


author: SCHOTT, Judge. PER CURIAM

text:
    Albert J. BALDO v. Lester J. THIBODAUX.
    No. 7334.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 28, 1975.
    Rehearing Denied Jan. 13, 1976.
    Writ Refused Feb. 20 and March 19, 1976.
    Jesse S. Guillot, New Orleans, for plaintiff-appellee.
    Norman Mopsik, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT and MORIAL, JJ.
   MOTION TO DISMISS

SCHOTT, Judge.

This is before us on a motion by appel-i lee to dismiss the appeal taken by a lessee from a judgment signed on May 28, 1975, ordering his eviction from leased premises. Appellee’s motion is based on the ground that the appeal bond was not posted until June 10, more than 24 hours after the judgment was signed and beyond the time limit prescribed by LSA-C.C.P. Art. 4735.

Upon our own examination of the record we have concluded that the appeal must be dismissed, not because the bond was not posted on time although this was surely the case, but because the judgment of eviction itself was not rendered in compliance with the law.

C.C.P. Art. 4732 provides that “if the court finds the lessor or owner entitled to the relief sought . . . the court shall render immediately a judgment of eviction . . . ” In Herman v. Style Line Greetings, Inc., 289 So.2d 876 (La. App. 4th Cir. 1974) we held that this article does not permit a trial judge to take a rule for possession under advisement and subsequently render judgment out of the presence of counsel, and that the provisions of C.C.P. Art. 1913 are not applicable to eviction proceedings.

The judgment appealed from signed on May 28 recites that the case was heard on May 23. Because the trial judge did not comply with the mandate of Art. 4732 requiring an immediate judgment there is no valid judgment of eviction from which an appeal can be taken by the lessee, and accordingly the appeal is dismissed.

Appeal dismissed.

ON APPLICATION FOR REHEARING

PER CURIAM

Our recital that the bond was not posted on time meant not within 24 hours. Since there is no appeal from a non-judgment (which is why this appeal is dismissed), there is no applicable time schedule.

Application denied.