author: STONE, Justice Ad Hoc. SUMMERS, C. J., MARCUS, Justice

text:
    STATE of Louisiana v. Wilfred DAVIS and Eddie L. Johnson.
    No. 64895.
    Supreme Court of Louisiana.
    Feb. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for defendant-appellant.
    Lyall G. Shiell, Jr., New Orleans, for plaintiff-appellee.
   STONE, Justice Ad Hoc.

Eddie Lee Johnson appeals from his conviction of attempted armed robbery of a McDonald’s Restaurant and the second degree murder of the restaurant’s assistant manager. He received concurrent sentences of twenty-five years at hard labor and life imprisonment. On appeal, he raises eight assignments of error, three of which we find to have merit.

Assignments of Error Nos. 2, 3 and 4

Defendant contends that the trial court erred in denying his motion to suppress oral inculpatory statements made to Detective Fricki, and in overruling his objection to the finding that the statements were freely and voluntarily made.

At the hearing on the motion to suppress, Detective Fricki testified to the following sequence of events: he arrested Johnson at a South Robertson Street address and drove with Johnson, Officer Brink and Sergeant Kastner in an unmarked police car for about two hours in an attempt to locate two other suspects, before finally taking him to Central Lockup for booking. According to Detective Fricki, he advised defendant of his rights upon placing him in the police car; thereupon defendant responded to questioning about the offenses with which he was charged, expanding upon his responses in the course of the ensuing two hour ride. Fricki stated that defendant’s statements were not obtained through the use of any psychological, physical or emo-. tional force. Although two other officers were present in the police car during this period, according to Fricki’s testimony, they were not called by the state to testify at the motion to suppress hearing.

When the defendant took the stand at the hearing, he told a different story. Johnson stated that Detective Fricki was not present when he was arrested at the South Robertson Street address, but instead joined the arresting officers when the police car made a stop at the First District Police Station. By this time, according to the defendant, the arresting officers (“a Sergeant and some more police officers”) had already forced him to make a statement by beating him about the face and body and “busting” his gum with a thumbnail; only after he had made all his statements were his rights read to him. Johnson testified that after Fricki joined the other officers in the police car, he repeated his statement to Fricki in order to avoid being beaten again. He also claimed that upon his arrival at Central Lockup, he asked the booking officer to send him to the hospital because of the injuries sustained during his interrogation, but that the officer refused.

Our review of the conflicting testimony presented at this hearing leads us to conclude that the state did not adequately rebut the defendant’s testimony on the critical issues of whether Detective Fricki was indeed present during the entire period between Johnson’s arrest and booking, and of whether physical force was used during his interrogation. Both the state and the defendant agreed that at least two other police officers accompanied defendant during this two hour period. The testimony of one or both of these officers would have served to contradict defendant’s allegation that Fricki was not present during his initial interrogation, and to rebut his testimony that his statements were elicited by the use of physical force.

The law governing the admission of confessions is clear. Before a confession can be admitted, the state must affirmatively show that the confession “was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” R.S. 15:451. In making this showing, the state must prove voluntariness beyond a reasonable doubt. State v. Peters, 315 So.2d 678 (La.1975). The state’s burden of proof is not met by the general testimony of a police officer to the effect that there was no coercion. Particularly where, as in this case, the defendant ' makes specific charges of coercion and abuse, it is incumbent upon the state to bring forth rebuttal testimony. State v. Simmons, 328 So.2d 149 (La.1976); State v. Monroe, 305 So.2d 902 (La.1974); State v. Simien, 248 La. 323, 178 So.2d 266 (1965). The proper procedure for the state to follow in such a situation was delineated in State v. Honeycutt, 216 La. 610, 616, 44 So.2d 313, 315 (1950):

“. . . Under the facts and circumstances of this case, we think it was incumbent upon the State to call other witnesses to corroborate the testimony of the deputy who took the confession and to rebut defendant’s own testimony with reference to his mistreatment. The State could have called for this purpose some or all of the . . . other officers who were with the deputy and the prisoner

This the state has failed to do. There is therefore merit to the assignments of error which concern the trial court’s finding that the oral inculpatory statement was freely and voluntarily made.

Assignments of Error Nos. 1, 5 through 8

Upon review of defendant’s other assignments of error, we find these to be without merit. In assignment # 1, defendant contends that the trial court erred in overruling his motion to suppress the photographic identification made by an eyewitness eleven days after the offense. He claims that the photographic display presented to this eyewitness was unduly suggestive because defendant’s photograph was “not similar” to the others. The transcript of the hearing on this motion shows, however, that defendant failed to prove that the identification procedure was suggestive. Even if a showing of suggestiveness had been made, the circumstances under which the eyewitness viewed defendant at the time of the offense precluded any likelihood of misidentification.

In assignment # 5, defendant claims that the trial court erred in its charge to the jury concerning reasonable doubt. It appears, however, that defense counsel waived any objection to this charge when he failed to make a contemporaneous objection and declined to submit any other charges to the court.

Assignment of Error No. 6 is based upon the contention that the trial court failed to charge the jury properly concerning the responsive verdict of attempted simple robbery. Because it appears that no contemporaneous objection was made to this portion of the charge, this matter is not properly before us. We note, however, that the charge defining simple robbery appears to have been adequate.

In Assignment of Error No. 7, defendant contends that the trial court erred in charging the jury that it might accept defendant’s inculpatory statements in whole or in part. Because no objection to this portion of the charge appears in the record, this issue was not preserved for review. Additionally, defendant’s argument that because R.S. 15:450 requires that a statement be introduced into evidence in its entirety, the jury must accept or reject a statement in its entirety, is without merit.

In Assignment of Error No. 8, defendant urges this court to consider any errors patent on the face of the record and the errors set forth in his motion for a new trial. We find no merit to this assignment.

Because we find that the only trial errors were those concerning the finding that defendant’s statements were freely and voluntarily made, it is not necessary that we now reverse his conviction and order a new trial. The state’s failure to carry its heavy burden of proof on this issue might be corrected upon a second hearing on the motion to suppress. If the trial court determines, after such a hearing, that the statements are inadmissible, we reserve to it the power to grant a new trial. If, on the other hand, the trial court determines that the statements are admissible, the right to appeal from such a ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed. State v. Stevenson, 374 So.2d 1189 (La.1979); State v. Simmons, supra.

The case is therefore remanded to the district court for further proceedings in accordance with this opinion.

SUMMERS, C. J.,

dissents from remand. The State has no right to patch up an unsuccessful phase of a prosecution without violating the prohibition against former jeopardy.

BLANCHE, J., dissents.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I dissent from the remand of this case to the trial court for a new hearing on the voluntariness of defendant’s conviction. In my view, the record fully supports the trial judge’s ruling that the confession was freely and voluntarily made. Accordingly, I respectfully dissent.

      . We note that discrepancies between Detective Fricki’s testimony at the motion to suppress hearing and his testimony at trial suggest that he may have contradicted himself on the critical issue of whether the police brought Johnson to the First District Police Station immediately after his arrest. His testimony during the suppression hearing suggests that the police car containing the defendant proceeded directly from the site of the arrest to a suspect’s home in Kenner:
      “Q. . . . The arrest was made where?
      A. At 1240 South Robertson Street.
      Q. Alright now, you said you deviated .
      A. Right.
      Q. What was this deviation?
      A. The deviation was that we had the defendant, Eddie Lee Johnson in custody. We went with him after he was uduer (sic) arrest to Kenner, Louisiana, in Jefferson Parish, looking for the address, looking for the house of their other subject .
      But, during the trial, Fricki said that a stop was made at the police station:
      “Q. But you did go to the First District Police Station did you not?
      A. We did make a stop there, that is correct.

      Q. Where were you going from the sweet shop at the time you stopped off at the First District?
      A. To the residence of Wilfred Davis.

      Q. And did you pick anyone up at the First District?
      A. Not that I recall sir.
      Q. Did you bring the defendant inside the First District Police Station?
      A. The defendant remained in the police car.
      Q. By himself?
      A. By himself, yes sir.”
      This contradiction points up the importance of rebuttal testimony from independent sources when the words of the defendant and the state’s only witness are in conflict.


source: Caselaw Access Project

author: STONE, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. John GRIDER.
    No. 65039.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, Dist. Atty., for plaintiff-appellee.
    C. Allen Bradley, Jr., Evans & Bradley, DeRidder, for defendant-appellant.
   STONE, Justice Ad Hoc.

The defendant, John Grider, was charged by Bill of Information with the offense of simple escape in violation of LSA-R.S. 14:110(A)(1). The jury found him guilty as charged and he was sentenced to serve five (5) years at hard labor. The defendant appeals to this court on two assignments of error regarding sentence.

By assignment number one, the defendant contends that the trial judge erred in relying upon “otjher crimes” for which the defendant was neither convicted or charged.

Following defendant’s escape from Louisiana Correctional and Industrial School at DeQuincy, defendant and an escapee, Manuel Knapp, stole a truck and the two left Louisiana, abandoning the truck near Houston, Texas when it ran out of gasoline. They then stole a car and were apprehended near Flagstaff, Arizona. The theft of the truck and car constituted the “other crimes.” No threats or injury are claimed. The information in reference to “other crimes” was contained in the presentence report. The trial judge stated he knew of the theft of the truck from other sources and that the theft of the car was irrelevant to the sentencing. (Trans, pp. 3-5, 12).

At the sentence hearing, the court stressed that the theft of the truck was in evidence in the Knapp trial. (Trans, p. 13). The judge also referred to an oral statement made about the theft by the defendant, though the statement was held inadmissible at trial of defendant. It does not appear that the trial judge, in sentencing the defendant, relied entirely upon a pre-sentence investigation or report containing statements denied by defendant. He relied, at least in part, upon an oral statement of defendant himself. We find assignment of error number one to be without merit.

For assignment of error number two, the defendant claims the sentence of five years at hard labor to be excessive. We agree.

As set forth in State v. Spencer, 374 So.2d 1995, 1202 (1979):

(9,10) La. Const. art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La. Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Sepulvado, supra.

LSA-R.S. 14:110 provides:

Whoever having been sentenced to the Department of Corrections commits the crime of simple escape shall be imprisoned with or without hard labor for not less than two years and not more than five years; provided that such sentence shall not run concurrently with any other sentence.

The trial judge in the instant case stressed that the escape occurred only a few days after the defendant arrived at the Louisiana Correctional and Industrial School. He apparently thus concluded that defendant’s lack of disciplinary write-ups while institutionalized were due to the short time that he had been incarcerated. The trial judge sought to fully comply with the mandate of Code of Criminal Procedure Art. 894.1 and has made comments for the record which are helpful to this court on review. It is also apparent from the record that the court in question makes great effort to individualize each sentence as is mandated by Art. 894.1. The legislature obviously intended that escape from a penal institution be treated as a serious offense as it carries a. mandatory minimum sentence of two years and provides a maximum sentence of five years, thus leaving great latitude and discretion, however, for the trial judge.

The trial judge referred to this case as “the most aggravated circumstances of escape from Louisiana Correctional and Institutional School that I have been confronted with as far as sentencing is concerned.” (Trans, pp. 30-21). He further stated that “given the opportunity, defendant might well leave again.” (Trans, p. 29). Thus, while the trial judge considered this case to present the most egregious circumstances he had reviewed, the case, never the less, does not represent the outer limits of egregious escape.

We believe that maximum punishment in matters such as this should be reserved for those escapes which at least approach these outer limits. Moreover, we find it difficult to discern the basis for the conclusion reached by the court concerning the defendant’s proclivity to escape a second time. It follows, therefore, that in our opinion the sentence is excessive and defendant’s sentence should be reversed and the case remanded for sentencing.

Conviction affirmed; sentence vacated and case is remanded for resentencing.

CALOGERO, J., concurs.

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


author: SUMMERS, Chief Justice.

text:
    STATE of Louisiana v. Michael COLEMAN and Donald H. Smith.
    No. 65218.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
    Nathan S. Fisher, Bryan E. Bush, Baton Rouge, for defendants-appellees.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., David Miller, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellant.
   SUMMERS, Chief Justice.

On August 14, 1978 defendants Michael Coleman and Donald H. (“Tony”) Smith were arrested pursuant to arrest warrants issued August 12, 1978 and charged with distribution of cocaine in violation of the Controlled Dangerous Substances Act. La. Rev.Stat. 40:967(A)(2). The arrest warrants referred to March 16,1978 as the date of the alleged offense and described defendants’ activity as selling a quantity of cocaine to an undercover police agent. The defendants were subsequently charged by bill of information with the offense. After a preliminary examination was held defendant Smith filed a motion to quash in which defendant Coleman joined.

On July 2, 1979 at the hearing on the motion to quash, the trial judge ruled that the five-month delay between the date of the alleged offense and the time of the arrest violated the due process rights of the defendants, thus granting defendants’ motion. From this ruling the State objected and gave notice of its intention to apply for writs, which this court granted. The State assigns as error the ruling granting the motion to quash.

In State v. Malvo, 357 So.2d 1084 (La.1978), this court was faced with the similar issue of whether a defendant was denied due process of law through a preindictment delay. The defendant in Malvo was indicted almost seven months after his alleged sale of heroin to an undercover agent. On appeal after conviction defendant claimed that the trial court erred in denying his motion to quash the indictment. In rejecting defendant’s contention that the prein-dictment delay caused prejudice to his defense as a violation of due process, this court held that “the proper approach in determining whether an accused has been denied due process of law through a prein-dictment or pre-arrest delay is to measure the government’s justifications for the delay against the degree of prejudice suffered by the accused.” Id., 357 So.2d at 1087. In affirming the conviction, this court concluded that the government’s interests in continuing a successful undercover operation justified the delay. Even though the defendant in Malvo claimed that a “ ‘material’ witness” had died during the delay, this court found that this claimed prejudice was only “minimal”, so that the defendant had not demonstrated the “significant prejudice” required to outweigh the delay which was justified by the State’s interests in protecting its investigations. Id.

In the instant case the undercover operation conducted by the Louisiana State Police in the Baton Rouge area commenced in the latter part of February 1978 and continued until April or May. In this particular case the undercover agent, who was employed as a member of the Felony Action Squad of the New Orleans Police Department, had been commissioned by the State Police for the duration of the operation. Her duties involved making contacts with various individuals in and around Baton Rouge in order to secure information concerning their activities which would enable her to enter into drug transactions. Although the only instance during which this agent gained information leading to the arrest of these two defendants was the alleged March 16, 1978 sale of cocaine, she had occasion to come into contact with them later.

So even though the pertinent portion of the investigation relating to these defendants only involved the alleged sale on March 16, 1978, the State claims the delay from this time until the end of the undercover operation was necessary to avoid jeopardizing the success of this entire operation. The State also contends that the two-and-a-half to three-month delay from the end of the operation until the arrest warrants were issued was necessary in order for law enforcement officials to sift through the information gathered by the various agents assigned to the investigation and to decide upon the presence of probable cause among the undercover agent’s various contacts. The State argues that this delay was not inordinate for making such an important decision.

Defendants claim in response that since the undercover operation was complete as it related to their activities on March 16,1978, the delay from this time until their August arrest was not justifiable. Defendants assert that the State’s reason for the delay has no basis and that the delay after the termination of the operation was unnecessary and avoidable because the whereabouts of defendants were known to the law enforcement officials at all times. Defendants claim that because of the lengthy delay they were rendered unable to establish an alibi or obtain witnesses for their defense, although no specific proof of resulting prejudice is asserted in this regard.

Because the undercover agent admitted that she had to refer to her notes to refresh her memory before she testified at the preliminary examination in April 1979, defendants advance this fact in support of their contention that the pre-arrest delay was prejudicial. Although the undercover agent did not confess any lack of independent recollection of the events of the alleged sale in her testimony at the preliminary hearing, defendants claim that she expressed a possible inability to recall the details of the incident. This contention is not supported by the record.

At the time of the preliminary examination, which was held more than one year after the alleged incident, the undercover agent was no longer employed by the New Orleans Police Department but was employed by the Drug Enforcement Administration in Florida. In her testimony she admitted that her memory may not have been exact as to precise times and order of events because she had handled many cases other than this one, but nothing in her testimony indicates that she lacked independent recall of the facts relating to probable cause or the essential elements of the charge.

Defendants claimed further that certain telephone records which might have been helpful to their defense were destroyed during the delay. These telephone records allegedly contained information concerning long distance calls made by the undercover agent involved in this case, but defendants have not shown how this information was relevant to their defense. Since undercover agent Cox was not from the Baton Rouge area but was a New Orleans Police Officer when she was retained for this investigation, the fact that she made long distance telephone calls from her apartment in Baton Rouge is quite understandable. In the absence of any specific showing of actual prejudice resulting from the unavailability of these telephone records, defendants’ claims here are not supported.

The defendant in State v. Malvo, supra, also claimed that prejudice resulted from the delay because of the death of an allegedly material defense witness which rendered any possible alibi defense unavailable. In rejecting this claim of prejudice, this Court found that “[i]t is significant that it was not shown that the ‘material’ witness who was no longer available for trial in fact had testimony which would aid defendant’s case. Instead, all that is known is that the witness might have been able to assist the defendant in tracing his actions on the night of the offense.” 357 So.2d at 1087. Defendants’ claims of prejudice here seem extremely speculative. Although a defendant should not be required to prove every possible defense he might have had but for a pre-arrest delay, the materiality of allegedly unavailable evidence becomes relevant in weighing the degree of prejudice suffered by a defendant due to such a delay.. In the case before us, defendants have not shown the substantial degree of prejudice required under this court’s approach in Malvo, supra, in order to find that the delay constituted a violation of due process.

We agree with the State’s position that the delay from the time of the alleged sale until the end of the undercover operation was justified by the need to protect the secrecy required for a successful undercover operation. Therefore, the only pre-arrest period in question is that from the end of the operation until the time of the actual arrest. As the State asserts, this delay was justified by the need to compile the information gathered by the undercover agent from her various contacts in order to make a fully-informed probable cause determination. Surely such a thorough prosecutorial decision-making process should be encouraged by allowing complete compilation of all information before prosecution is instituted. See, e. g., United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

As this Court has recognized, the legislature has acted to set forth statutes of limitations to guard against the most prejudicial delays. State v. Stetson, 317 So.2d 172 (La.1975). In providing these safeguards, the legislature has determined that certain delays create a likelihood of possible prejudice to the accused. When these provisions are not applicable, actual prejudice must be clearly demonstrated in order to make a valid claim under the guarantees of due process. Mere pre-arrest delay, without a concrete showing of substantial prejudice resulting from such a delay, does not warrant finding that a defendant has been denied due process. Especially where, as here, the delay was justified by considerations of effective law enforcement activities and well-considered probable cause determinations, the occurrence of a delay before an arrest should not abort a criminal prosecution in the absence of proof of facts and circumstances showing this prejudice.

For the reasons assigned, the ruling of the trial judge is reversed and the case is remanded for trial.


text:
    STATE of Louisiana v. Willie D. JACKSON.
    No. 65404.
    Supreme Court of Louisiana.
    Feb. 15, 1980.

      Jack P. Owens, Jr., Reeves & Owens, Jonesville, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Ferriday, William G. Avery, Asst. Dist. Atty., for plaintiff-respondent.
   SUMMERS, Chief Justice.

Willie D. Jackson was charged by bill of information with aggravated criminal damage to property by shooting an airplane. The defense filed motions to quash the information and to suppress as evidence a shotgun and shells seized from his automobile after a search pursuant to a warrant executed by Catahoula Parish Sheriff’s Deputies. After a contradictory hearing on the motions, the trial court denied them. We granted certiorari on defendant’s application. 375 So.2d 947.

On the morning of February 24, 1979 Deputy Pete Toler of the Catahoula Parish Sheriff’s Office was in Jonesville, Louisiana. He received a telephone call from Officer Frank LaPrarie of the Jonesville Police Department who told him that the Sheriff’s Office had ■ in custody Willie D. Jackson, that the Jonesville Police had arrested Jackson- and that Jackson’s automobile was impounded at an automotive yard in Jonesville. Although Toler was not told what LaPrarie had been doing at the yard, he was told LaPrarie had been standing outside the vehicle and had seen through the window what he thought were marijuana cigarette butts on the floor boards by the driver’s seat. Toler telephoned the Sheriff’s Office, Deputy Roosevelt Savage went into the jail to speak with Jackson, and Jackson executed a written form granting the deputies permission to search his vehicle. In pertinent part, the form read:

“I, Willie D. Jackson, have been informed by Deputy Roosevelt Savage and Deputy Charles Randall who made proper identification as (an) authorized law enforcement officer(s) of the Catahoula Parish Sheriff Department of my CONSTITUTIONAL RIGHT not to have a search made of the premises and property owned by me and/or under my care, custody and control, without a search warrant.
“Knowing of my lawful right to refuse to consent to such a search, I willingly give my permission to the above named officer^) to conduct a complete search of the premises and property, including all buildings and vehicles, both inside and outside of the property located at Babin Storage yard (one 1974 Chevrolet Belair 4 Door white CAR.) Bearing LA. Lie. # 84E630.)
“The above said officer(s) further have my permission to take from my premises and property, any letters, papers, materials or any other property or things which they desire as evidence for criminal prosecution in the case or cases under investigation.
“This written permission to search without a search warrant is given by me to the above officers) voluntarily and without any threats or promises or any kind, at 11:15 A.M. on this 24 day of Feb. 1974 at 11:15 AM.”

The form was signed by Willie D. Jackson and witnessed by the two Deputy Sheriffs named in the form. Deputy Savage then drove to Jonesville where he, Deputy Toler and Officer LaPrarie obtained the vehicle’s keys from the yard’s wrecker driver and searched Jackson’s vehicle for marijuana. Deputy Toler later testified that the butts on the floor appeared likely to have contained marijuana but were burned to the point'where only cigarette papers were left; in addition, some “burned seeds” were found. In the course of the search Toler saw a 12 gauge single-barrel shotgun in the car and a 12 gauge 2¾" Magnum shell loaded with # 1 buckshot, Super-X brand, on the seat. He looked in the glove compartment for any marijuana that might have been hidden there; in the glove compartment was a shotgun shell box which he picked up and shook. The box rattled as though partially full of shells and he replaced it without, he testified, looking into it.

Three or four days later Toler learned that sometime between the afternoon of February 23 and the afternoon of February 25, that is, between Friday and Sunday afternoons, someone unknown had fired at an airplane parked at the Jonesville Airport. The plane showed the marks of a number of shotgun pellets and an empty Super X 12 gauge 2¾" Magnum shell which had been loaded with No. 1 Buckshot was found lying about thirty feet from the damaged plane. He also learned that Jackson had been seen in Jonesville and that he had been in jail that week end, that is at the time the permission to search the car was given, after having been arrested by Jones-ville Police officers for criminal damage to property at the Block High School which he testified is located about one mile from the airport. Remembering the shotgun and shell of the appropriate brand and type in Jackson’s car and putting that together with the circumstances of Jackson’s arrest, Toler said Jackson became “the best suspect that we had.”

On February 28,1979 Toler went before a judge of the Seventh Judicial District Court and executed an affidavit for a search warrant. The specifications and allegations of fact in the affidavit were:

“THAT A SEARCH WARRANT SHOULD ISSUE FOR THE SEARCH OF A WHITE 1974 CHEVROLET 4 DOOR CAR OWNED AND OR IN THE POSSESSION OF WILLIE D. JACKSON. VEHICLE BEARING CURRENT LOUISIANA TAG NUMBER 84E630. FOR THE PURPOSE OF SEIZING THE FOLLOWING DESCRIBED PROPERTY: ONE .12 GA. SINGLE BARREL SHOTGUN AND ANY SUPER X .12 GA. 2¾ INCH MAGNUM NUMBER 1 BUCKSHOT SHELLS IN THE ABOVE DESCRIBED VEHICLE.
“FOR THE FOLLOWING REASONS: 1 — SOMETIME BETWEEN FRIDAY AFTERNOON 2-23-79 AND SUNDAY AFTERNOON 2-25-79 COMEONE SHOT AN AIRPLANE BELONGING TO OWEN HOLLAND WHILE IT WAS PARKED AT THE JONESVILLE AIRPORT. ON MONDAY AFTERNOON AFTER HEARING OF THE DAMAGE DONE TO THE HOLLAND AIRPLANE, ROY TRUE WENT TO CHECK THE OTHER PLANES AND FOUND A SPENT SUPER X .12 GA. 2¾ INCH MAGNUM NUMBER 1 BUCKSHOT SHELL APPROXIMATELY 30 FEET IN FRONT OF WHERE THE HOLLAND PLANE WAS PARKED. THE SHELL APPEARED TO BE FRESH.
“2 — ON SATURDAY 2-24-79 at 11:45 AM I HAD OCCASION TO SEARCH THE ABOVE DESCRIBED VEHICLE BELONGING TO WILLIE D. JACKSON IN JONESVILLE IN RELATION TO ANOTHER CASE AND I PERSONALLY OBSERVED A .12 GA. SINGLE BARREL SHOTGUN IN THE VEHICLE. I ALSO OBSERVED ONE SUPER X .12 GA. 2¾ INCH MAGNUM NUMBER 1 BUCKSHOT SHELL LYING ON THE FRONT SEAT OF THE VEHICLE. I OBSERVED MORE OF THE SAME TYPE SHELLS IN THE GLOVE COMPARTMENT OF THE JACKSON VEHICLE.
“3 — THIS OFFICER REQUESTS THAT THIS WARRANT SHOULD BE ISSUED TO SEARCH THIS VEHICLE AND SEIZE THE SHOTGUN AND SHELLS IN AN ATTEMPT TO MATCH THE FIRING PIN INDENTATION AND SHELL EXTRACTOR MARKS MADE BY THIS SHOTGUN WITH THE SHELL FOUND AT THE AIRPORT.

The warrant was issued upon that affidavit that same day and served by Deputy Toler that same evening. He found and seized a Stevens Model 940E 12 gauge shotgun and one Super-X 12 gauge 2¾" Magnum shell loaded with Number 1 Buckshot, but later testified that the partial box of shells in the glove compartment was missing at the time of the search. The gun and shell were submitted for forensic examination; on March 13 Toler received a report from the laboratory identifying the shotgun seized from Jackson’s car as the one that fired the shell found at the airport. Toler executed an affidavit for an arrest warrant, the warrant was issued and Jackson was arrested and charged with the shooting at the airport.

The defense filed pretrial motions to quash the bill of information on the ground that the State had failed to present a prima facie case against the defendant, and to suppress as evidence all objects seized on the ground that the reasons specified in the affidavit for the search warrant were insufficient to constitute probable cause. At the hearing on the motions the sole witness was Deputy Toler who testified to the facts recited above. The State argued that a motion to quash must be founded on the statutory grounds specified in Articles 532 and 534 of the Code of Criminal Procedure, that failure to present a prima facie case is not one of those authorized grounds, and that failure to present a prima facie case is rather the proper subject of a motion for a directed verdict at the close of the State’s case. The defense argued that the motion to quash was intended to be heard at the conclusion of the hearing on the motion to suppress; the trial judge ruled that the motion to quash was overruled because the State would have a right to proceed to try the ease even were the motion to suppress granted.

The defense argued that Deputy Toler’s seeing the shotgun and shell on his first search of the vehicle was insufficient ground for his later application for a search warrant, the State did not argue the motion and the trial court denied the motion to suppress.

In his application here seeking a supervisory writ, the defendant made but one assignment of error: that the trial court should have suppressed the evidence seized because the defendant presented evidence that rebutted the validity of the search and seizure.

From the three assignments argued in brief our attention is drawn to that which pertains to the adequacy of the application for the search warrant, a matter which can be reviewed by inspection of the pleadings and proceedings and thus within the scope of the rule we have adopted by analogy from Article 920 of the Code of Criminal Procedure and State v. Spears, 350 So.2d 603, 605 (La.1977).

The allegations contained in the application for the warrant are only three: 1) that an airplane had been shot up; 2) a used shell of a specific type found in the near neighborhood of the plane; and 3) that a shotgun of the appropriate gauge and shells of the same type had been seen in the defendant’s car. The affidavit closed with the expression of the affiant’s desire to seize the shotgun and shells in the car for comparison with the shell found at the airport. Even overlooking the absence of any allegation that the airplane appeared to have been shot up with a shotgun, let alone a 12 gauge shotgun, and even accepting arguendo that the magistrate might permissibly have inferred from the recital of the finding of the shotgun shell at the airport that it was in. some way connected with the shooting, the affidavit is silent as to any alleged connection between the defendant and the shooting or between the shotgun and shells found in his car and the individual shell found at the airport.

Affiant may have had some such reasons dehors the affidavit, but where there was no testimony that additional sworn evidence was given orally before the magistrate, the sufficiency of the warrant must be tested within the four corners of the affidavit.

A search warrant may issue only upon an affidavit reciting facts establishing to the satisfaction of a neutral and detached magistrate that probable cause exists to search the premises named for the object sought. La.Code Crim.Pro. art. 162; State v. Morgan, 376 So.2d 99 (La.1979); State v. Boksham, 370 So.2d 491 (La.1979); State v. Paciera, 290 So.2d 681 (La.1974). Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a person of reasonable caution to believe that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Morgan, supra; State v. Boksham, supra; State v. Koncir, 367 So.2d 365 (La.1979); State v. Turnipseed, 362 So.2d 486 (La.1978); State v. Richards, 357 So.2d 1128 (La.1978). Inherent in this formulation is the requirement that the evidence or contraband to be sought be evidence of or contraband proceeding from that offense the existence of which has been reasonably demonstrated. The judicial officer must be supplied with enough information to support' an independent judgment that probable cause exists for the issuance of a warrant. State v. Sierra, 338 So.2d 609 (La.1976).

In State v. Morgan, supra, we recently granted a motion to suppress where the affidavit for a warrant recited merely that the affiant had observed marijuana growing in proximity to the buildings the search of which was sought. In State v. Daniel, 373 So.2d 149 (La.1979) we also reversed a trial court’s denial of a motion to suppress where the affidavit for a search warrant recited that certain drugs were known to be missing from a hospital pharmacy during a limited period of time in which the defendant was the only person to have had access to the pharmacy; although the warrant was for the search of the defendant’s residence this Court struck down the warrant on the ground that the affidavit recited neither that the apartment was the defendant’s residence or that the drugs were known to have been delivered to that address.

The instant case is similar to Morgan and Daniel. The affidavit offered the magistrate no grounds upon which he could reasonably have concluded that the defendant’s gun was probably connected with the airport shooting and therefore evidence of a crime. Particularly in a rural parish of our state, which blazons the words “Sportsman’s Paradise” on its license plates, suspicions may be raised by the possession of a shotgun of a common gauge and shells bearing a major national brand name, loaded with a common size of shot, but “the suspicions aroused are far outweighed by the possibilities of innocent behavior, considering all of the circumstances.” State v. Thomas, 349 So.2d 270 (La.1977).

For the- reasons assigned, the ruling of the trial judge denying the motion to suppress is reversed, and the case is remanded for proceedings not inconsistent with this opinion.


author: PER CURIAM.

text:
    STATE of Louisiana v. Don E. SPANO, Jr.
    No. 66256.
    Supreme Court of Louisiana.
    Feb. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., for plaintiff-respondent.
    Kenneth E. Badon, Henry R. Liles, Lake Charles, for defendant-relator.
   PER CURIAM.

On August 31, 1979, defendant Don E. Spano, Jr. pleaded guilty to a charge of simple battery, La.R.S. 14:35. After studying a presentence investigation report and conducting a hearing in which defendant was given an opportunity to rebut the allegations of the report, the trial court imposed the following sentence:

“. . . defendant is ordered to serve 91 days in jail, the sentence is suspended and defendant placed on supervised probation for a period of 2 years, with a special condition of probation being that he serve 15 days in jail and that he not go to or about a commercial establishment whose principal commodity is entertainment or the sale of alcoholic beverages. Defendant is ordered to pay costs.”

On defendant’s representations that he had committed the offense under strong provocation, we granted writs to consider his argument that the sentence was excessive. Our review of the entire record discloses numerous aggravating circumstances offsetting the mitigating circumstances urged in defendant’s behalf.

Accepting, as did the trial court, defendant’s account of initial provocation by the victim, we also concur in the finding that defendant’s attack on the victim, which occurred after the police had broken up their fight and separated them for questioning, represented an “intolerable . defiance of the authority of the officers . present to control the situation.” Moreover, defendant’s lengthy record of arrests, originating primarily in barroom incidents, supports the imposition of a two-year probationary term, with the special conditions of a brief jail term and the avoidance of bars. These sanctions were thoughtfully tailored to defendant and the offense, and were not excessive.

However, as stated into the record, defendant’s sentence includes a probationary condition that we do not think the trial court intended. When sentence was originally imposed on October 31,1979, the court directed that defendant “may not go to or habituate any place of business whose principal commodity for entertainment is the sale or consumption of alcoholic beverages.” (emphasis supplied). A week later, the court vacated the sentence and imposed that recited above, with the condition that defendant avoid any “commercial establishment whose principal commodity is entertainment or the sale of alcoholic beverages.” (emphasis supplied). Defendant’s exclusion from bars, we have observed, is recommended by his record. The same cannot be said of his exclusion from all commercial places of entertainment, a condition that bears no relationship to the present offense and would not serve the sentencing goals of deterrence and rehabilitation. Because that condition would impose an excessive, unwarranted hardship on defendant, we vacate the sentence and remand the case for resentencing in accordance with the views herein expressed.

SENTENCE VACATED; REMANDED

DENNIS and WATSON, JJ., concur in the decree only, being of the opinion that the prior arrests, not resulting in convictions, do not justify the severe sentence imposed.

      . Initially, the court sentenced defendant to serve 91 days in jail, suspended all but 15 days of that sentence and imposed the described probationary term; subsequently, it made the 15-day incarceration a condition of defendant’s probation. See, La.C.Cr.P. Art. 894.


text:
    STATE of Louisiana v. Alfredia MORMAN.
    No. 65647.
    Supreme Court of Louisiana.
    Feb. 22, 1980.
    On Denial of Rehearing April 7, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon H. Whit-ten, Dist. Atty., George H. Meadors, Asst. Dist. Atty., for plaintiff-appellee.'
    Robert E. Piper, Jr., Piper & Brown, Shreveport, for defendant-appellant.
   PER CURIAM.

Affirmed.

CALOGERO, DENNIS and WATSON, JJ., dissent.

CALOGERO & DENNIS, J.J., would grant a rehearing.

WATSON, J., would grant the rehearing, being of the opinion that defendant should have been sentenced under R.S. 14:27(D)(2) for attempted theft.


text:
    Mrs. Anna K. GELE et al. v. Earl MARKEY and Hanover Insurance Company.
    No. 65291.
    Supreme Court of Louisiana.
    Oct. 8, 1979.
   In re Mrs. Anna K. Gele et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 379 So.2d 763.

Granted.


text:
    Elden BRUNET v. EVANGELINE PARISH BOARD OF SUPERVISORS OF ELECTIONS; Johnny Chapman; Hebert Fontenot, Jr., Registrar of Voters; Walter Lee, Clerk of Court; and Paul J. Hardy, Secretary of State.
    No. 66098.
    Supreme Court of Louisiana.
    Nov. 12, 1979.
   In re Johnny Chapman, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline. 376 So.2d 633.

Writ denied.


text:
    STATE of Louisiana ex rel. John F. BOISSIERE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66564.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re John F. Boissiere applying for remedial writs. Parish of West Feliciana. No. 60,324.

Denied.

DIXON and CALOGERO, JJ., would grant the writ. There was nothing more than an attempted escape.

DENNIS, J., would grant the writ. There was no departure from a place where defendant was legally confined. See State v. Gaines, 372 So.2d 552.


text:
    STATE of Louisiana ex rel. Albert FOURNETT and William Sam v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66140.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Albert Fournette and William Sam, applying for writ of habeas corpus, certiora-ri and prohibition. Parish of Orleans. No. 244-076.

Granted. The case is remanded to the trial court for consideration in light of State v. Hopkins, 367 So.2d 346 (La.1979).


author: MARCUS, J.,

text:
    Irene M. KELLER et al. v. Mr. and Mrs. Gerald KELLEY et al.
    No. 66394.
    Supreme Court of Louisiana.
    Feb. 8, 1980.
   In re Mr. and Mrs. Gerald W. Kelley and Cherokee Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 378 So.2d 1006.

Writ denied.

MARCUS, J.,

would grant, being of the opinion that the case is contrary to this court’s decision in Latham v. Aetna Cas. & Surety Co., 377 So.2d 350 (La.1979).

BLANCHE, J., would grant the writ.


author: DENNIS, J.,

text:
    Jewel Ray FRANKLIN et ux. v. HAUGHTON TIMBER COMPANY et al.
    No. 66569.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Jewel Ray Franklin, et ux., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of DeSoto. 377 So.2d 400.

Writ denied.

DENNIS, J.,

would grant. The statute prohibiting employment of a minor in connection with power-driven machinery imposes civil liability on the principal employer for the minor’s death. Cf. Boyer v. Johnson, 360 So.2d 1164 (La.1978). This cause of action is independent of any right granted or preempted by the workmen’s compensation act, La.R.S. 23:1031 et seq., because the “act” which caused the damage was the unlawful hiring of the minor, which preceded the employment in the course of which he was injured. La.C.C. Arts. 2315, 2320.


text:
    STATE of Louisiana ex rel. Thomas GRAYER v. T. N. ARMISTEAD, Superintendent, East Louisiana State Hospital.
    No. 66608.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
   In re Thomas Grayer, applying for supervisory writs of certiorari or review. Parish of Orleans. Nos. 271-056 and 273-415.

Writ granted. The trial court is instructed to order a report from East La. State Hospital and to proceed thereafter according to law. See Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); State v. Williams, 363 So.2d 441 (La.1978).


text:
    STATE of Louisiana v. Nathan THOMAS, Jr., et al.
    No. 65662.
    Supreme Court of Louisiana.
    Feb. 21, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition, mandamus and stay order. Orleans Parish. No. 271-937.

Denied. See State v. Rodriguez, 379 So.2d 1084 (La.1980).


author: EDWARDS, Judge.'

text:
    Hugh M. CARLETON v. DIVISION OF ADMINISTRATION, LOUISIANA CIVIL SERVICE COMMISSION and Department of Civil Service, State of Louisiana.
    No. 12989.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Writ Granted April 18, 1980.
    William R. Carruth, Jr., Baton Rouge, for appellant.
    R. Gray Sexton, Baton Rouge, for appel-lee.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   EDWARDS, Judge.'

Hugh M. Carleton, an employee of the Division of Administration, appeals a decision of the Civil Service commission upholding a ruling by the Director of the Department of Civil Service which reduced his salary. We reverse.

Appellant was employed by the Division of Administration on May 9, 1977, as the Director of State Purchasing. His initial monthly salary of $2,500.00 was later raised to $2,575.00, where it remained until March 15, 1979.

Subsequent to the decision in Smith v. Division of Administration, 362 So.2d 1101 (1978), the Director of the Department of Civil Service established a pay range for the position of Director of State Purchasing. That range extended from $1,666.00 to $2,462.00 per month. On March 9,1979, Mr. Carleton was notified that his new salary, as determined by the Director, would be $1,780.00 per month, effective March 15, 1979. This amounted to a reduction in annual salary from $30,900.00 to $21,360.00, a loss of $9,540.00.

Appellant sought review by the Civil Service Commission and alleged that the Department of Civil Service had improperly established a pay plan. Alternatively, Carleton alleged that Civil Service Rules 5.6 and 6.12(d) should have been applied in his case.

The Director of the Department of Civil Service filed a motion for summary disposition on the ground that Mr. Carleton had no basis for an appeal under Civil Service Rule 13.10. In addition, the Director urged that Rule 6.28 and not 6.12(d) applied to the case.

Following a hearing on the motion for summary disposition, the Civil Service Commission issued its opinion, No. 2101, on May 14, 1979. Carleton’s appeal was denied and the use of Rule 6.28 was found to have been proper. Carleton then sought judicial review.

Two issues are raised. First, what status in the Civil Service did appellant occupy beginning May 9,1977? Second, was appellant’s salary properly determined?

Smith v. Division of Administration, supra, attempted, but apparently failed, to end the intragovernmental struggle between the Division of Administration and the Civil Service Commission. The Supreme Court stated in Smith:

“Judgment is entered herein in favor of the intervenor, Department of State Civil Service, declaring employees of the Division of Administration classified employees of the State of Louisiana under Article 10, § 2(A) of the Louisiana Constitution of 1974.”

Appellant urges that the Smith Case afforded protection to Division of Administration employees by giving them classified status.

The Department of Civil Service maintains that the Supreme Court in Smith never meant to

“wire into the classified service without competitive examination or appointment and at salaries they had arbitrarily been assigned by the Commissioner of Administration the very individuals whose positions in the State service had been successfully challenged by the State Department of Civil Service in the Smith case.”

In briefing this case, counsel for Civil Service stated that:

“Carleton obviously was not occupying the class of position of Director of State Purchasing at the time the range for that position was established but, to the contrary, was occupying, illegally, in an unclassified status a position created by the Commissioner of Administration.”

We do not agree with this position.

When Smith was decided, the Supreme Court placed great emphasis on the long-established view that employees of the Division of Administration were classified employees.

“Since the ‘creation’ of the Division of Administration in 1948, its employees have continuously been treated as classified employees. Despite the Civil Service Amendment adopted in 1952, which listed as part of the unclassified service employees of the ‘offices of the Governor,' the State Civil Service Commission in 1953 ruled that the Division of Administration was not in the office of the governor within the meaning of the constitutional amendment. Apparently accepting the Civil Service Commission’s interpretation, the legislature in Act 42 of 1956 deleted from Act 133 of 1948, by then R.S. 39:1, the words ‘whose employees shall be employees of the office of the Governor.’ W. W. McDougall, Director of the Department of State Civil Service from March 1, 1953, to November, 1968, testified at the hearing conducted to investigate possible violations of civil service law by the Division of Administration that the Division of Administration had consistently not been considered a ‘part of the Governor’s office’ and that its employees were considered in the classified service. The construction placed by the Civil Service Commission has been accepted by every Governor and Commissioner of Administration, including the present one, since that ruling.” 362 So.2d at 1105.
“Even if the Legislature in 1948 did intend, as the 1976 Legislature proclaimed, that the employees of the Division of Administration be in the unclassified service, such intention is irrelevant.” 362 So.2d at 1107.

The obvious conclusion is that all employees in the Division of Administration have been, and are considered to be, in the classified service and are entitled to the protection such status warrants.

Counsel for Civil Service would have us believe that from the day In re Division of Administration, 343 So.2d 277 (La.App. 1st Cir. 1977), was handed down until the day of the Smith decision, all employees hired by the Division of Administration were employed contrary to law and are not entitled to Civil Service protection. This unprotected period would, therefore, extend from February 14, 1977, until September 5, 1978, and appellant would be numbered among the unfortunate.

Counsel’s interpretation of the Smith and In re Division of Administration cases is mistaken. In re Division of Administration became a definitive judgment when the Supreme Court refused writs. Thus, it was the law that from February 14, 1977, until September 5, 1978, all Division of Administration employees were unclassified. Employees hired by the Division during that period, including the appellant, were hired outside of Civil Service guidelines, but they nevertheless were lawfully hired employees. Smith v. Division of Administration was a separate case which overruled but did not reverse the holding of In re Division of Administration. Smith merely determined the status of all Division of Administration employees without any distinction as to how, when, or by whom they were employed. Every Division employee, including the appellant, was instantly given the protected status of a classified employee.

We note that on at least one occasion, the Civil Service Commission has taken the same position, contrary to their posture vis-á-vis Mr. Carleton. On the same day the Commission handed down its opinion in appellant’s case, it also handed down an opinion in the case of Stafford v. Division of Administration, Civil Service Commission Docket No. 1996.

In that case, Mrs. Retha M. Stafford, a Division of Administration employee, appealed her September 30,1977, termination. The Division urged that from February 14, 1977, until September 5, 1978, the Civil Service Commission had no jurisdiction. However, Mr. R. Gray Sexton, attorney for the Department of Civil Service in both that case and Mr. Carleton’s, had informed Mrs. Stafford that she might be able to appeal her termination to the Civil Service Commission. The Civil Service Commission, in opinion No. 1996, agreed insofar as the question of its jurisdiction extending to the Division of Administration employees at all times. Referring to the Smith case, the Commission stated that:

“It is implicit in this decision of the Supreme Court that the employees of the Division of Administration (with the exception of its appointed head and those occupying the unclassified positions permitted by Civil Service law) are in the classified service of the state and have continued to serve in the classified service of the state, without interruption, since the establishment of the Division of Administration in the Office of the Governor by Act 133 of 1948.”

Since the Commission made no distinction between employees hired prior to and after In re Division of Administration, and since the Commission saw fit to extend Civil Service protection to Mrs. Stafford, it would be illogical and inconsistent not to extend protection likewise to Mr. Carleton.

Therefore, we hold that Hugh M. Carle-ton, legally hired by the Division of Administration, has been in the classified service since his employment on May 9, 1977, and merits the appropriate safeguards.

In determining which rule must be used to fix appellant’s salary, counsel for Civil Service argues that:

“Rule 6.12(d) provides for the narrow situation where a person, occupying a particular class of position in the State service, finds himself being paid in excess of the maximum of the range for that position because of a reduction in the range provided by an amendment of a Uniform Pay Plan.”

We cannot agree that Rule 6.12(d) necessarily must be interpreted in so restrictive a manner. But regardless of Rule 6.12(d)’s scope, we find that appellant does fall within its purview. Therefore, his prior salary of $2,575.00 per month must be lowered only to $2,462.00 and not to $1,780.00.

Civil Service urges that if appellant is found to have always been a classified employee, then the proper measure for his beginning salary would be the lowest one in that class, $1,666.00 monthly, pursuant to Rule 6.4. This rule is inapplicable in the present case where appellant was occupying a position for which he had been properly hired and the range of pay was changed. However, even if Rule 6.4 were to apply, appellant might well have been hired at a salary above the minimum. Rule 6.4(d) allows such appointments.

Finally, appellant contends that the pay plan implemented by the Department of Civil Service on March 15, 1979, required specific gubernatorial approval. Appellant cites Article 10, Section 10(C) of the Louisiana Constitution of 1974 for this proposition. Section 10(C) reads:

“Any rule or determination affecting wages or hours shall have the effect of law and become effective only after approval by the governor or the appropriate governing authority.”

In the present case, we find that Civil Service merely fixed a salary range for appellant. What was done regarding other employees is not at issue in this case.

For the foregoing reasons, the denial of appellant’s appeal is reversed and it is ordered, adjudged and decreed that there be judgment in favor of appellant, Hugh M. Carleton, fixing his salary as Director of State Purchasing at $2,462.00 per month, retroactive to March 15, 1979.

All costs for which it is liable are to be paid by the Department of Civil Service.

REVERSED AND RENDERED.

      . Pay range is the entire spectrum of possible salaries for a given position.

      . “ ‘Pay Plan’ means all the rates of compensation prescribed by the Commission and approved by the Governor for classes of positions in the Classified Service.” Civil Service Rules. Definition 1.24.

      . Rule 5.6
      “Status of Incumbent When Position Reallocated.
      (a) When a position is reallocated the incumbent shall be entitled to serve therein without change in status, provided
      1. He is qualified under the standards in effect, at the time of the reallocation, for the class to which his position is reallocated; and
      2. He attains or has attained a passing grade in such written examination as may be in use, at the time of the reallocation, for the class to which his position is reallocated.
      (b) The Director, in his discretion, may waive the written test requirement.”
      Rule 6.12(d)
      “When a Pay Plan is Established or a Range is Changed:
      (d) The rate of pay of an employee who is being paid in excess of the maximum prescribed for his class shall be reduced to such maximum.” ,

      . Rule 13.10 lists the grounds on which a person may appeal to the Civil Service Commission. Counsel for Civil Service urges that the grounds are exclusive. We need not decide that issue since Rule 13.10(c) clearly allowed Mr. Carleton an appeal based on his allegation that the wrong rule had been used in reducing his salary. The deprivation of a right (here, a salary loss) through the proper application of an improperly selected rule is just as appeala-ble a deprivation as is the improper application of a properly selected rule. We will not permit Rule 13.10 to be read so narrowly as to deprive an employee whose salary has been cut by $10,000 per year of his right of appeal.
      Rule 13.10(c) reads:
      “An appeal may be made to this Commission by
      (c)Any person in the Classified Service who alleges that he has been deprived of any right, discriminated against, or adversely affected by the violation of any provision of the Article or of any Rule of this Commission.”

      . Rule 6.28
      “Pay Upon Change from Unclassified Service to Classified Service.
      When the status of an employee in the State service is changed from the unclassified to classified the Director, upon request of the appropriate appointing authority, may fix his rate of pay at such step or intermediate step in the range for his class of position for which he would have attained eligibility under the provisions of Rule 6.15 had his status been classified during his unclassified service; provided:
      1. The nature and quality of such service is recognized as qualifying under the examination specifications prescribed for the class of position; and
      2. The Director may not fix the employee’s rate of pay at a figure in excess of that he was receiving at the time of his change of status, unless his rate of pay while serving with unclassified status did not equal or exceed the minimum rate of the range for his class of position.”

      . Rule 6.4(d)
      “When an appointing authority makes an emergency appointment, he may fix the pay of the employee at any step within the range for the class, provided that with the approval of the Director the rate may be fixed at an amount in excess of the maximum.”


author: LEAR, Judge.

text:
    CHARLES CARTER & COMPANY, INC. v. DIXIE ELECTRIC MEMBERSHIP CORPORATION.
    No. 12943.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Walton J. Barnes, Baton Rouge, of counsel, for plaintiff-appellant Charles Carter & Co., Inc.
    Athena B. Piedrahita, Baton Rouge, of counsel, for defendant-appellee Dixie Elec. Membership Corp.
    Robert L. Kleinpeter, Baton Rouge, of counsel, for third party defendant-appellee Holton Intern., Inc.

      Donald S. Zuber, Baton Rouge, of counsel, for third party defendant-appellee Miller, Smith & Champagne, Inc.
    Before EDWARDS, SARTAIN and LEAR, JJ.
   LEAR, Judge.

Charles Carter & Company, Inc. (Carter) and Dixie Electric Membership Corporation (Dixie) entered into a contract in late 1973 for the construction of Dixie’s Zachary branch office. Ten thousand dollars of the contract price remained unpaid and Carter filed suit for it and for the additional sum of Fourteen Thousand Two Hundred Fifty-nine and 22/100 ($14,259.22) Dollars for work performed above and beyond the requirements of the contract.

In its answer to the suit, Dixie admitted holding said ten thousand dollars, but alleged that the asphalt storage area was constructed in such a way that it began to deteriorate immediately. By supplemental reconventional demand, Dixie alleged that it would take the sum of Thirty-five Thousand Nine Hundred Nine and 90/100 ($35,-909.90) Dollars to repair this condition and put the storage area in good condition. Also Dixie, in its third party demand, sued its architects, Miller, Smith & Champagne, Inc. (architects), and sought to hold them liable in the event that it was cast for any amount on the main demand filed by Carter. This third party demand was based on the grounds that the architects specified an inadequate material for use as a soil stabilizer for the storage area. The architects filed a third party demand, suing Holten International, Inc. (Holten), manufacturer of a product called Pen-E-Pac, and alleged that it was not fit for the purposes intended and inadequate for use as a soil stabilizer in connection with the construction of the storage area. Arrow Construction Company (Arrow), Carter’s sub-contractor for the paving portion of the contract, was also made a third party defendant. Arrow did not appear and Carter confirmed a default judgment against Arrow in the amount of Fifteen Thousand Five Hundred Thirty-three and No/100 ($15,533.00) Dollars, plus costs.

There were a number of photographs offered in evidence which corroborate the testimony relative to the failure of this paved storage area. The sub-contract between Carter and Arrow specified outdoor storage paving, soil cement, stabilized with Pen-E-Pac soil stabilizer.

In the contract between Dixie and Carter, Section 2.3-04 provides that this contractor shall construct the drives, parking and storage area in accordance with standard specifications of the Department of Highways, State of Louisiana. Paragraph 2.3-05, Sub-paragraph B, provides that soil cement base course shall consist of a foundation course for the surface course. The base shall be composed of a combination of sand, clay gravel and portland cement uniformly mixed, moistened and compacted in accordance with Louisiana highway specifications. Sub-paragraph C, Section 4, states that in lieu of soil cement base course this contractor shall use the Pen-E-Pac liquid soil stabilizer in the storage area.

Pen-E-Pac is a trade name for a soil stabilizer which, according to the testimony of an expert, lubricates the soil to the extent that friction is removed and it is more easily compacted. According to this expert and to Holten’s brochure, Pen-E-Pac was offered in good faith but without warranty, and was recommended for use in conjunction with lime and/or cement stabilization. There is nothing in the brochure to indicate that Pen-E-Pac would strengthen the soil, but merely aid in compacting.

The trial court stated, in written reasons:

“It should not take a chemist or engineer, upon reading these specifications, to immediately question Pen-E-Pac’s strength, as it was to be substituted for soil cement, whose properties are well known in the construction industry.”

It was recommended that Pen-E-Pac, which is a liquid, was to be mixed in a ratio of two gallons of Pen-E-Pac to one thousand gallons of water and spread on the soil to be compacted.

Appellant has cited numerous cases in which the courts have held that the builder or contractor does not guarantee the sufficiency of the specifications. We agree with appellant, inasmuch as neither party makes such guarantee unless such is spelle'd out in the contract or specifications. We also agree with cases cited by appellant that where the owner, through his architect, can be regarded as having superior knowledge and represents to the builder the feasibility of such plans or specifications, the owner is responsible for any defects resulting from such representations. As stated in Brasher v. City of Alexandria, 215 La. 887, 41 So.2d 819, on rehearing:

“It is the duty of one, who proposes to enter into a building contract to examine the contract, plans and specifications, and to determine whether it is possible to do the work before entering into the engagement [to do the work], or to insist upon some stipulation covering that matter.”

In the instant case, Carter admitted having no familiarity with Pen-E-Pac prior to bidding on the contract, yet Carter offered a reduction of the bid price if such was used. It seems apparent that a study of the specifications and the alternate (Pen-E-Pac as opposed to the known characteristics of soil cement) would require Carter to make an inquiry before bidding to perform the work.

The trial judge felt that both Carter and Arrow were under a duty to inquire as to the properties of Pen-E-Pac before contracting to use it. The court likewise was of the opinion that the architects were at fault in permitting the substitution, with which we agree.

A careful review of the record does not disclose manifest error or abuse of discretion; therefore, the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.

AFFIRMED.


text:
    Lynn A. DUPUY v. Dr. Joe C. TILLEY.
    No. 12967.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.
    Writ Refused April 18, 1980.

      Arthur Cobb, Kathleen W. Marcel, Baton Rouge, for plaintiff-appellant Lynn A. Du-puy.
    F. W. Middleton, Jr., W. Luther Wilson, Thomas H. Benton, Baton Rouge, for defendant-appellee Dr. Joe C. Tilley.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   LEAR, Judge.

Plaintiff-appellant appeals from an adverse jury verdict in a medical malpractice suit. The facts show that Lynn Dupuy began developing acne at about twelve years of age and that the condition worsened until, by the time he became an adult, most of his body was affected. He first saw Dr. Tilley and his partner, Dr. Thomas Graves, both dermatologists, in late 1970. He was treated primarily by Dr. Graves until July, 1975, at which time he began seeing Dr. Tilley, who treated him until December, 1976. Dr. Tilley and Dr. Graves had severed their partnership back in 1974. The record discloses that Dupuy was given numerous medications. However, the most effective drug seemed to be cortisone, an anti-inflammatory agent.

Expert medical testimony indicates that cortisone can have serious side effects on glands and cause osteoporosis, or demineral-ization of the bone. The hypothalamus, pituitary and adrenal glands are suppressed by cortisone, necessitating slow withdrawal of the drug. Both Dr. Graves and Dr. Tilley testified that they discussed the side effects of cortisone with plaintiff and advised him of the signs to watch for and to report to the physician should any signs appear.

Plaintiff, while under treatment by Dr. Tilley, developed Cushing’s Syndrome, which is an indication of excessive cortisone in the body. He was hospitalized and diagnosed as having Iatrogenic (physician-induced) Cushing’s Syndrome. There was also a notation on the hospital record indicating cortisone being self-induced, which information was part of the history given by plaintiff. Neither defendant nor Dr. Graves had any specific knowledge as to whether plaintiff refilled any prescriptions for cortisone tablets. Additionally, there was testimony by the plaintiff that when he had a flareup of acne, he would take extra pills.

During the course of cross examination, appellant’s attorney referred Dr. Tilley to a reference book, Dermatology, by Maschella, Pillsbury and Hurley. That portion of the text relevant to this matter reads as follows:

“A. Treatment is difficult and often ineffective. Intense antibiotic therapy is necessary, with frequent bacteriologie-an-tibiotic sensitivity studies to guide the selection and use of antibiotics as the disease progresses. Systemic corticosteroids are effective in controlling the process, but long-term therapy is necessary and their discontinuance often leads to a flare-up of the disease. Because the daily long-term use of systemic steroids will bring the risk of side effects, these drugs should be reserved for the most severe cases and be administered every other day when possible; the therapeutic risks must be weighed against the gains.
“The course of acne conglobata is chronic, and the prognosis is poor. Severe and disfiguring scars as well as the chronicity of the process often cripple patients with this condition both physically and mentally.”

La.R.S. 9:2794 reads as follows:

“A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261, et seq., or a dentist licensed under R.S. 37:751, et seq., the plaintiff shall have the burden of proving:
“(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing in the same community or locality to that in which the defendant practices; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty-
“(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
“(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
⅝ ¾5 ‡ ⅜ ‡ ⅜
“C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician or dentist. The jury shall be further instructed that injury alone does not raise a presumption of the physician’s or dentist’s negligence. The provisions of this Section shall not apply to situations where the doctrine res ipsa lo-quitur is found by the court to be applicable.”

The issue as presented by plaintiff concerned the question of whether or not Dr. Tilley should have treated Dupuy with cortisone. The experts differed as to whether or not cortisone should be used and with the question of how much should be used and the frequency with which it should be administered. None of the experts would voice an opinion as to whether or not Dr. Tilley’s treatment of Dupuy amounted to malpractice. It should be noted that this matter was tried for several days in the district court before being presented to the jury and that the jury returned a unanimous verdict in favor of defendant, rejecting plaintiff’s demands.

In discussing the issues of this case, we must keep in mind the pronouncements of this court in Dupree v. Pechinay Saint Gobain Company, et al., 369 So.2d 1075, February 12, 1979, wherein this court held that before examining the evidence, under the rule of Canter v. Koehring Company, 283 So.2d 716 (La.1973), a reviewing court must give great weight to factual conclusions of the trier of fact. A jury verdict should be maintained, unless the record reflects that its conclusions of fact are not supported by the evidence and/or its application of the law is clearly erroneous. Moreaux v. Argonaut Insurance Company, 350 So.2d 240 (La.App. 3d Cir. 1977), writ refused November 11, 1977. In the absence of manifest error, the appellate court is not to disturb, on appeal, the finding of the jury which has evidence before it furnishing a reasonable, factual basis for its verdict, based on its reasonable evaluation of credibility.

Looking at the record in this case, there is ample testimony to support the use of cortisone in the treatment of plaintiff’s condition. Inasmuch as this case was tried before a jury, we are not knowledgeable as to the reasoning of the jurors in arriving at their verdict. There was testimony and evidence that the plaintiff, by taking pills against the orders of his doctor, may have caused his own condition. There was testimony by one of the witnesses that cortisone makes a patient “feel good”.

Based upon the evidence, the jury may have determined that Dr. Tilley was guilty of no negligence in the manner in which he treated the plaintiff or they may have found that plaintiff’s own negligence had caused his new problem of Cushing’s Syndrome when he took additional cortisone against the advice and without the knowledge of his doctor. A careful reading of the record clearly shows that there was evidence in the record supporting the jury verdict.

Therefore, under the cases cited above, we must give great weight to the verdict of the jury and we should maintain said verdict where the record reflects that the evidence supports such verdict and that the jury’s application of law in this case is not erroneous.

Therefore, the holding of the jury in the trial court will be affirmed, appellant to pay all costs.

AFFIRMED.


author: ELLIS, Judge:

text:
    SUCCESSION OF Moody U. DIXON.
    No. 12928.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    John A. Lieux, Gonzales, for plaintiff and appellee.
    Gordon R. Crawford, Gonzales, for defendants and appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit for a declaratory judgment, in which Bertha Ory Dixon seeks to have declared her rights under the will of her late husband, Moody U. Dixon. Defendants are the 11 children of the decedent by his first marriage to Julia Courtney Dixon.

Most of the facts in the case are stipulated. Julia Courtney Dixon died on September 10,1964. Her succession has never been opened. On March 27, 1965, Moody Dixon entered into an act of partition with his 11 children, by virtue of which they divided a tract of land containing 148.839 acres, which was owned in the proportion of an undivided one-half to Mr. Dixon and an undivided one-half to the children. Under the terms of the partition, the land was divided into 11 parcels, one of which went to each child. Mr. Dixon received ownership of the improvements on Tract No. 3 as well as the usufruct of the said tract, as his share of the partition. It is stipulated that the land was worth $3,000.00 per acre at the time of Mr. Dixon’s death.

On April 8, 1965, Mr. Dixon married Bertha Ory Dixon. He died on August 28, 1975, leaving a valid testament which contained the following relevant provisions:

“I give and bequeath to my wife, Bertha Ory Dixon, all of my right, title and interest in and to all cash and funds on deposit in checking or savings accounts which I may leave at my death.
“I direct that the remainder of my estate be disposed of in accordance with the laws of intestate successions.”

At the time of his death, he left funds on deposit in various accounts totalling about $41,663.99. There was also about $6,700.00 in cash in his home.

The following accounts are stipulated to be property of the community between Moody and Bertha Dixon:

Bank of Gonzales Savings Account

No. 50-1253-9 $17,521.97

Bank of Gonzales Checking Account

No. 15-4809-3 9,464.89

Bank of Gonzales Checking Account

No. 15-4602-3 190.67

Bank of Gonzales Checking Account

No. 11-2261-4 140.00

TOTAL $27,317.53

Bank of Gonzales Savings Account No. 50-0028-5, which contained $14,346.46, had a balance of $7,608.31 on the date of the marriage of Moody and Bertha Dixon. It is stipulated that half of the increase in that account since the marriage belongs to the defendants herein, and the other half to the community between Moody and Bertha Dixon. From this stipulation we conclude that one-half of the $7,608.31 or $3,804.15, is the separate property of Moody Dixon, and the other half the property of the defendants. The increase in the account is $6,738.15, and one-half of that, or $3,369.08, belongs to the community between Moody and Bertha Dixon.

As to the $6,700.00 in cash, defendants claim it to be the property of the first community. They bear the burden of proving this fact, and we find from the record that they have failed to overcome the presumption that the funds are property of the second community. Article 2405, Civil Code.

Insofar as the cash and bank accounts are concerned, therefore, Moody Dixon’s estate contains $3,804.15 in separate property, and $37,386.61 in community property, of which latter figure, one-half, or $18,693.30, belongs of right to Mrs. Dixon, the surviving spouse in community. The decedent’s total interest in the cash and bank accounts equals $22,497.46.

The record further reveals that he died leaving the improvements on Tract No. Three which are separate property and for which no value is given. He also left 350 shares of stock in Union Tank Car Company and 350 shares of Trans Union Corporation, for which no value is given, and which are stipulated to be property of the first community. He also left a 1967 Ford Falcon, a bush hog and miscellaneous household goods and effects, which are stipulated to be property of the second community, and for which no value is given. The value of the estate of Mr. Dixon at the time of his death would be the total of $22,497.46, plus the value of the improvements, one-half the value of the stock and one-half the value of the car, the bush hog and the household goods.

The major contentions made by the parties hereto involve the treatment of the act of partition entered into in 1965. Defendants claim that Mr. Dixon’s undivided one-half of the property was worth $223,258.50, and that he received only the ownership of the improvements on Tract Three and the usufruct of the tract in return, and that the partition must be considered as a donation. They further argue that the donation exceeds the disposable portion of his estate, and that the disposition made to Mrs. Dixon in the will therefore is null because it infringes on the forced portion of the children.

Article 1510 of the Civil Code provides: “When the value of donations inter vivos exceeds or equals the disposable quantum, all dispositions mortis causa are without effect.”

The above provision of the Civil Code is found in the section thereof which treats the reduction of donations made to the prejudice of the forced heirs. If the act of partition was in fact a donation, which is not clear, it was made to the forced heirs and is therefore not to their prejudice. Such a donation may not be used by the forced heirs to. reduce donations mortis causa made thereafter. See Articles 1493 et seq., and Articles 1227 et seq. Civil Code. The latter articles, dealing with collation, indicate that the Code intends that donations made to forced heirs prior to the death of the donor are presumed to be advances on what they might one day expect to inherit. We find defendants’ contention to be without merit.

Mrs. Dixon, on the other hand, argues that the property allegedly donated by Mr. Dixon to his children must be included in his estate for the purpose of determining if the disposition in favor of Mrs. Dixon impinges on the legitime of the forced heirs. In other words, she wants to collate the property allegedly donated. Article 1235 of the Civil Code provides:

“The obligation of collating is confined to children or descendants succeeding to their fathers and mothers or other ascendants, whether ab intestate or by virtue of a testament.
“Therefore this collation can not be demanded by any other heir, nor even by the legatees or creditors of the succession to which the collation is due.”

Under the clear language of the above article, Mrs. Dixon is not entitled to demand collation.

We find that Mr. Dixon’s estate is as hereinabove outlined. Its total can be arrived at by taking evidence as to the value of the items described above, and adding that to his interest in the bank accounts. He can leave one-third of that amount to his widow, limited only by the value of his interest in the cash and bank accounts. It will be necessary to remand the case to the trial court for further proceedings to establish the values of the unappraised items in the estate.

The judgment appealed from is therefore amended so as to declare the bequest valid insofar as it does not impinge on the forced portion of the defendants, which shall be computed as hereinabove set forth. All costs of this appeal shall be shared by the parties hereto, with all other costs to await final disposition hereof on its merits.

AMENDED AND REMANDED.


author: CHIASSON, Judge.

text:
    CAPTAIN KEVIN CORPORATION v. BAY DRILLING CORPORATION et al.
    No. 12913.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      Robert B. Butler, III, of Schwab & Butler, Houma, for plaintiffs, appellants in de-volutive appeal, appellees in suspensive appeal, Captain Kevin Corporation, R. A. Toups, Inc., Joseph Toups, Dallas A. Toups, Inc.
    John D. Fitzmorris, Jr., New Orleans, Donald L. Peltier, Thibodaux, for defendants, appellant in suspensive appeal, appel-lee in devolutive appeal, Bay Drilling Corporation Texaco, Inc.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is a suit by the owners of oyster leases of State land for damages to their oysters allegedly caused by the negligent drilling of an oil well by the drilling contractor of the mineral lessee of the same land. The owners of the oyster leases are plaintiff-appellee Captain Kevin Corporation (Leases Nos: 22563, 18967, 22565, 22567, 18966 and 19761); plaintiff-appellee Joseph Toups (Leases Nos: 22564, 16961, 16962 and 22734); and Dallas Toups (Leases Nos: 22508 and 22511). Plaintiff-appellee R. A. Toups, Inc. used and operated Leases Nos. 16962 and 22734 and was the owner of the oysters located thereon by agreement with Joseph Toups. Plaintiff-appellee Dallas A. Toups, Inc. used and operated Leases Nos. 22508 and 22511 and was the owner of the oysters located thereon by agreement with Dallas A. Toups.

Additionally, plaintiffs Ernest Voisin, Roger Toups and Dallas Toups filed suit for mental anguish because of the destruction of the oyster crop, which claim was denied by the trial court. Plaintiff Motivatit Sea-foods, Inc. filed suit for loss of profits from preparation and sales of oysters which Captain Kevin Corporation was unable to supply and this claim was also denied by the trial court.

The trial court awarded damages to the owners of the oysters as follows:

Captain Kevin Corporation $50,627.00
R. A. Toups, Inc. $14,140.00
Joseph Toups $24,005.00
Dallas A. Toups, Inc. $17,360.00

The defendants-appellants are Bay Drilling Corporation (Bay), the drilling contractor, and Texaco, Inc., the mineral lessee. All costs were assessed against appellants.

Appellants Texaco and Bay appealed the judgment of the trial court awarding damages to the oyster owners and plaintiffs Ernest Voisin, Roger Toups, Dallas Toups and Motivatit Seafoods, Inc. appealed the judgment of the trial court dismissing their respective demands. The oyster owners answered the appeal of Texaco and Bay seeking an increase in the amount of damages awarded to them.

The record reveals that oysters in the Bay des Islettes area are planted generally in the fall and winter and are harvested in the following spring and summer. The oysters have to be harvested before the late summer because in the latter part of summer a significant number of conchs, a predatory snail, appear and kill the oysters.

In early May of 1976 appellees were harvesting and selling oysters from their leases. There were no problems from pollution or oil contamination. At this time the appellants were in the process of drilling a well from a submersible drilling barge. The well site was located to the northwest of appellees’ oyster leases. The net current flow in this area is from northwest to southeast, that is, from appellants’ well site over appellees’ leases.

The drilling of the well commenced on April 4, 1976 and was concluded on June 22, 1976. On May 6, 1976, the drill stem was sticking and Bay injected 90 barrels of diesel into the drilling mud. This did not prevent the sticking and on May 7 Bay injected 650 barrels of a special fluid known as “Black Magic”, which is composed of 75% diesel and which acts as a solvent and a lubricant to free a stuck pipe. On May 14 an additional 210 barrels of Black Magic was injected into the well.

On or about May 24 appellees began to receive complaints of an oily taste in their oysters. This was reported by the appellees to the Louisiana Wildlife and Fisheries Commission and on June 2, Robert Ancelet, a biologist with the Commission, made an investigation and took samples of the area for analysis by Shilstone Testing Laboratories. The analysis showed extremely high concentrations of barium and hydrocarbon in the sample taken 150 feet west of the drilling rig which is the area that the key-way of the rig faced.

On slightly varying dates in early June, appellees ceased harvesting oysters from the leases involved because of oil contamination. Tests were taken periodically thereafter but the harvest could not be resumed because of the contamination, except for a few oysters from the northernmost reefs.

Texaco and Bay list as assignments of error the following:

1. The Court erred in finding that plaintiffs’ oysters were oily.
2. The Court erred in finding as a fact that Black Magic was circulated out of the mud system and discharged into the waters.
3. The Court erred in finding that Bay and Texaco negligently conducted operations of their mineral activities.
4. The Court erred in finding that har-vestable populations of oysters remained on plaintiffs’ reefs.
5. The Court erred in awarding money damages to these plaintiffs.

Appellants correctly contend that they are entitled to a full and complete review of the facts under the provisions of the Constitution of 1974, Article 5, Section 10(B). Appellants also correctly set forth the standards of review by which we are bound. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Appellants argue that a review of the transcript and record in this case will clearly establish that there is no evidence which can reasonably be interpreted to support the trial court’s findings. We disagree.

As to appellants’ first specification of error, it is contended that appellees’ case rises or falls upon the credibility and validity of taste tests performed by Mr. Ancelet. They allege that Mr. Ancelet committed serious error by informing the tasters that the tests were being performed to check on a possible oil contamination problem. Appellants and appellees devote much of their argument in briefs to the validity of these tests. The trial judge did not comment upon the tests in his reasons for judgment.

We find that it is unnecessary for us to determine what weight should be given to the taste tests’ results because we find appellees did prove that the oysters were contaminated with oil by reasonably credible evidence apart from the tests. This fact was testified to by each of the appellees and corroborated by the testimony of buyers and their employees, of consumers, and of other disinterested witnesses.

By expert testimony appellants also contend that it was physically impossible for the amount of oil involved herein to contaminate appellees' oysters. One of the theories of the expert is that the oysters involved herein, being four to six feet under water at all times, could not be affected by the oil because oil floats on the surface of the water. Appellees produced expert testimony . that harmful ingredients in oil would diffuse throughout a column of water.

The trial judge, therefore, did not err in finding that appellees’ oysters had an oily taste.

As to specifications of error numbers two and three, the record reveals that the drilling of a well, insofar as relevant herein, consists of circulating drilling mud in the hole and, as it come up, running it across a shaleshaker. This device is basically a screen which shakes and allows the liquid mud to fall through and remain in the mud system while at the same time trapping the cuttings from the hole and depositing them into the “possum belly.” There is a constant stream of water pumped into the possum belly which washes the cuttings and any other material attached to them into the keyway. The stream of water continues on out under the bottom of the keyway into the bay carrying with it various particles. When the mud and cuttings are uncontaminated this method of operation does not cause any problems. When the mud and cuttings are contaminated with diesel it can be expected that oil will accumulate in the keyway. In this particular case, about 20 barrels of oil were removed from the key way by employees of appellants with the use of cans attached to a stick to remove the floating oil.

The testimony convinces us that all of the oil was not segregated and some was allowed to escape from the keyway.

This conclusion is supported by the testimony of witnesses who saw an oil sheen on the waters near the drilling barge; the testimony of Mr. Ancelet that a brownish material was billowing out from the key-way; the testimony of Texaco’s drilling and production foreman that if a stream of discolored water could be seen coming from the keyway, it would probably indicate that something was wrong; the testimony of a professional petroleum engineer and of a state pollution inspector that mud contaminated with diesel should not be allowed in the key way; and the inability of appellants to account for the disposition of the contaminated mud by credible evidence.

We therefore concur in the following findings by the trial judge:

“. . . (T)he court finds as a fact that the area in which the oyster leases in question were located was not polluted before the introduction by defendants into its well of diesel oil and Black Magic in early May of 1976. The court further finds that the evidence has proved that the area was polluted shortly after this substance was circulated out and discharged into the waters. Plaintiff has satisfied its burden by a preponderance of evidence that the contamination of the water was due to the negligence of defendants in its handling of the oil and Black Magic which it introduced into its well hole in an effort to free a stuck pipe and is, therefore, liable to plaintiffs for any damages suffered as a result thereof.”

The jurisprudence at the time of the occurrence of the damages herein was to the effect that the oyster lessee must prove negligence and lack of due care on the part of the mineral lessee in the exercise of its rights under the mineral lease and no recovery could be had in the absence of a showing of negligence. Trosclair v. Superior Oil Company, 219 So.2d 278 (La.App. 1st Cir. 1969); Jurisich v. Louisiana Southern Oil & Gas Co., 284 So.2d 173 (La.App. 4th Cir. 1973).

The finding of negligence resulting in appellants’ liability to appellees for damages to their oysters is amply supported by reasonable and credible evidence.

As to specifications of error numbers four and five, we find, as did the trial judge, that the nature of oyster planting and harvesting is such that an exact and minute calculation cannot be precisely determined. When oysters are planted they are not individually counted or packed in known quantity containers. They are loaded upon the deck of a boat of known dimensions and stacked to certain heights. The estimates of the quantity of oysters on each boat are not purely speculative. The trial judge did not err in accepting the amount of planted oysters as testified to by appel-lees and their witnesses. Nor did the trial judge err in his findings of the amount of unharvested oysters. There is overwhelming evidence that the method used by appellants’ expert to calculate the amount of oysters remaining on the reefs was not the best method. Nor is there any evidence to indicate that the oysters herein sued for were in fact harvested.

The approach used by the trial judge to compute appellees’ damages was to take the number of sacks planted and subtract therefrom the number of sacks harvested to arrive at the number of sacks of oysters remaining to be harvested. To this figure the trial judge added a 10% growth factor and subtracted 25% because of natural attrition from predators and the physical inability to recover 100% of the oysters planted. The trial judge then subtracted from this figure the cost of harvesting the remaining oysters at $1.00 per sack and arrived at the net loss to each appellee. To this figure he added, where appropriate, the cost to clean the reefs of unharvested oysters. All of these items are supported by the evidence.

We find this method of calculating damages to be reasonable under the circumstances. Lauzon v. J. C. Trahan Drilling Contractor, Inc., 247 So.2d 236 (La.App. 4th Cir. 1971) writ refused 259 La. 69, 249 So.2d 206 (1971); Skansi v. Humble Oil & Refining Company, 176 So.2d 236 (La.App. 4th Cir. 1965).

Appellees in their brief concede the reasonableness of this method and withdraw the request for an increase in damages contained in their answer to the appeal. Captain Kevin’s claim for damages was properly based on the sale price it was receiving per sack of oysters sold.

As to the appeal of Ernest Voisin, Roger Toups and Dallas Toups, we concur with the trial court’s holding that there is absolutely no evidence to sustain the claims for mental anguish.

As to the appeal by Motivatit Sea-foods, Inc., it appears that Captain Kevin Corporation was owned and controlled by Ernest A. Yoisin who also owned and controlled Motivatit Seafoods, Inc. Captain Kevin Corporation sold its oysters to Moti-vatit Seafoods, Inc. at a price 50 cents per sack below the going market price. Moti-vatit claims it lost a profit of 50 cents per sack for each sack of oysters Captain Kevin Corporation was unable to harvest because of appellants’ negligence. It seeks to recover this damage from appellants herein. We agree with the trial court’s holding that appellants’ liability cannot be extended to cover this loss.

For these reasons the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.