author: BLANCHE, Justice. CALOGERO, Justice,

text:
    Severino RODRIGUEZ, et al. v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 80-C-2881.
    Supreme Court of Louisiana.
    June 22, 1981.

      Floyd F. Greene, New Orleans, for defendant-applicant.
    Ronald F. Plaisance, New Orleans, for plaintiff-respondent.
   BLANCHE, Justice.

Rodolfo Rodriguez was injured during an altercation which occurred aboard a streetcar operated by New Orleans Public Service, Inc. (NOPSI). Rodolfo’s father, individually and in behalf of his son, sued NOP-SI for damages in the First City Court for the Parish of Orleans. That court rendered judgment for plaintiff in the amount of $1300.75 and the Fourth Circuit Court of Appeal affirmed the judgment. This Court granted a writ of certiorari to consider the duty of the defendant to protect passengers from the intentional torts of other passengers. 396 So.2d 910.

The facts of this case have been accurately summed up by the court of appeal as follows:

Rodolfo Rodriguez,,a 14-year-old white male, boarded a St. Charles Avenue streetcar at its intersection with Calhoun Street. He was accompanied by his young friend, Michael Hammer. Already on the streetcar were two young black females and at least two adults, referred to in the testimony as “tourists”. Rodriguez and Hammer testified that shortly after they boarded the streetcar the two females commenced to make derogatory and insulting remarks toward them. They got up and moved a few seats away. The insulting epithets continued for approximately 20 blocks. At one point, Rodriguez and Hammer stated that the insults were so loud that the “tourists” turned and looked to their direction. Throughout this period of time the motorman on the streetcar, John Yancy, gave no indication that he was aware of the incidents taking place behind him.

As the streetcar reached the intersection of Carrollton and Oak Streets the two females arose to exit. As they passed young Rodriguez a large handbag of one of the females “slapped me across the face.” Young Rodriguez reacted instantly by throwing up his arms and rising. In doing so, he knocked one of the females over and against one of the seats across the aisle. Immediately thereafter one of the females attacked Rodriguez with a seam ripper, inflicting superficial wounds on his lower left forearm, upper left arm, upper right arm and right chest. Yancy stopped the streetcar immediately and separated the youths. The females immediately left the scene. Rodriguez and Hammer got off the street ear and went across the street to a local drug store to obtain first aid assistance.

After having received first aid assistance young Rodriguez and Hammer boarded another streetcar, and as they approached the end of the line they saw Yancy. Yancy then made inquiry concerning the extent of Rodriguez’ injuries and called for a supervisor to investigate the matter. .

Yancy’s testimony is to the effect that he was totally unaware of any disturbance on his streetcar until the scuffling ensued. He did not hear the verbal abuse directed to the youths by the two females. He stated that he did not call his supervisor at Car-rollton and Oak because he thought that a supervisor would be waiting at the Carroll-ton and Claiborne intersection. While he did admit to observing blood on Rodriguez’ clothing and some blood on the seat of the streetcar, he still determined to wait until he reached the Carrollton and Claiborne intersection before reporting the incident.

There is testimony establishing that defendant’s company rules require the operators of its vehicles to immediately report any incident involving personal injury. In this respect, Yancy should have called for supervisory assistance at the Carrollton and Oak intersection. It is also company policy that its operators should do everything reasonably within their power to avoid altercations that might result in injury to its fare-paying customers.

Plaintiff’s contention is that the failure of the defendant’s motorman to do anything between the time the female passengers began insulting Rodolfo and his companion and the time of the attack constituted a breach of defendant’s duty of care. Given the factual posture of the case, we disagree.

In Gross v. Teche Lines, 207 La. 354, 21 So.2d 378 (1945), this Court approved a doctrine which states that a carrier of passengers is not an insurer of safety but, rather, is required to exercise the highest degree of care and is liable for the slightest negligence. This Court further stated that when a passenger is injured in an accident and has failed to reach his destination in safety, the burden is on the carrier to prove itself free from fault, i. e., that it acted with the highest degree of care or that the accident did not occur. See also Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979); Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963). The reason for the first rule is the notion that one who is in the business of providing transportation for a fee should be a more professional transporter than the “reasonably prudent” driver with respect to hazards associated with the transportation of passengers. In keeping with the reason for the rule, the courts of this state have consistently applied it in cases involving vehicular collisions involving public passenger carriers or other injuries related to the operation of carriers’ vehicles.

More recently, the duty of highest care has been applied, with differing interpretations, to injuries arising from batteries inflicted upon passengers by trespassers or other passengers. It is obvious however that injury resulting from a battery is totally unconnected with the hazards generally associated with transportation. Because of the lack of any connexity between transportation by public carriers and batteries upon passengers other than the location of the injuries, an application of the “highest care” standard to attacks committed on public carriers’ vehicles would go beyond the reason for the rule and treat public carriers specially for all purposes rather than for those risks associated with the conducting of its business. Such a result cannot be sanctioned and is expressly disapproved.

Merely because the defendant will not be held to the highest degree of care to prevent intentional batteries upon its passengers does not mean that the law will absolve it from liability any time a passenger is attacked. Since defendant is essentially operating a business that permits the public to enter its premises, it should be held to the same duty as a reasonable business establishment with respect to hazards not associated with the peculiar nature of carriage of passengers.

Owners of businesses who permit the public to enter their establishments have a duty to exercise reasonable care to protect those who do enter. Ferrington v. McDaniel, 336 So.2d 796 (La.1976); Kavlich v. Kramer, 315 So.2d 282 (La.1975); Rigney v. Howard Bros. Discount Stores, Inc., 387 So.2d 38 (La.App. 3rd Cir. 1980); Martel v. South Farm Bureau Cas. Ins. Co., 368 So.2d 1192 (La.App. 3rd Cir. 1979). This duty extends to keeping the premises safe from unreasonable risks of harm or warning persons of known dangers. Williams v. Winn Dixie of La., Inc., 393 So.2d 680 (La.1981). When the independent, intentional tortious or criminal acts of a third person constitute the unreasonable risk, this duty does not require the proprietor to risk physical injury or civil or criminal liability by physical intervention. Rather, the duty can be discharged by the summoning of those entrusted by law with the power of immediately maintaining the peace, the police, at the time the proprietor knows or should reasonably know of the third person’s intention and apparent ability to execute the intended acts. See Guidry v. Toups, 351 So.2d 1280 (La.App. 1st Cir. 1977), writ den. 353 So.2d 1036 (La.1978); Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir. 1976); Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir. 1973); Rodney v. Mansur, 219 So.2d 305 (La.App. 1st Cir. 1969). In addition, the proprietor would have to, as far as is practicable under the circumstances, warn others of the danger prior to the arrival of the police so that they might take actions to avoid the danger. Anderson v. Clements, supra; see also Williams v. Winn Dixie of La., supra.

The undisputed testimony establishes that motorman Yancy did more for Rodolfo Rodriguez than the law required of him when he intervened in the scuffle seconds after it started and separated Rodolfo and the weapon-wielding assailant. In addition, Rodriguez procured his own medical attention. Thus, the only remaining question is whether Yancy should have reasonably anticipated the attack with sufficient time to prevent it.

The record is devoid of any testimony which would indicate that Yancy should have known that Rodriguez would be attacked. Even assuming that Yancy was aware that the assailant was uttering insulting words at Rodriguez and his companion, this alone could not suffice as reason for belief that a battery would occur, for, as Rodriguez put it, “[t]hat always usually goes on, all that kind of insulting stuff.” Further, Rodriguez did not inform Yancy that he was in need of any assistance but instead changed seats to one in which he felt more comfortable just blocks before the attack.

In light of the evidence, viewed most favorably to the plaintiff, the worst that can be said about Yancy’s actions is that, he permitted a low level of decorum to continue on his streetcar. The tolerance of a set level of decorum not involving criminality or harm to others is a business choice that must be made by defendant based upon its calculations of what effect permitted conduct will have on ridership. See Brown v. New Orleans Public Service, Inc., 376 So.2d 176 (La.App. 4th Cir. 1979). Further, even if it could be said that the defendant had a duty to prevent another passenger from insulting Rodriguez, it would not extend to the risk of harm associated with a later attack on Rodriguez while the other passenger was preparing to exit, since it is impossible to state that failure to prevent noise is easily associated with a physical attack by the noisemaker upon the person of Rodriguez.

Since defendant did not breach any duty owed to plaintiff or his son, the judgment of the lower court is reversed.

REVERSED.

DIXON, C. J., concurs in the result only.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents and will assign reasons.

CALOGERO, Justice,

dissenting.

I would affirm the judgment of the court below in favor of plaintiffs. As the majority states, the insulting remarks continued for approximately 20 blocks and were sufficiently disturbing to draw the attention of the “tourists.” Under these circumstances, the Court of Appeal found that “for a distance of 15 to 20 blocks Yancy had every opportunity to discern the events taking place...” While the trial court did not state reasons for its judgment, a similar finding is inherent in its judgment for plaintiffs.

The injury did not occur on a crowded vehicle; nor was a large group of individuals involved in the attack. Apparently there were only six people on the streetcar during the time the incident took place. Under these circumstances it is not unreasonable to expect the motorman to be aware that a potentially injurious situation is developing and instruct the offenders to cease their activity.

For the foregoing reasons, I respectfully dissent.

      . The Gross and Wise cases involved vehicular collisions. See also Woods v. Hinton, 116 So.2d 208 (La.App. 2nd Cir. 1959).

      . See Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1975); Skipper v. New Orleans Public Service, Inc., 338 So.2d 771 (La. App. 4th Cir. 1976); Jones v. New Orleans Public Service, Inc., 254 So.2d 652 (La.App. 4th Cir. 1971), writ den. 260 La. 402, 256 So.2d 289 (1972).

      .This was the approach taken by the Court of Appeal in the instant case, 400 So.2d 917 at 918 (4th Cir. 1981). See also Imig v. New Orleans Public Service, Inc., 391 So.2d 72 (La. App. 4th Cir. 1980); Orr v. New Orleans Public Service, Inc., 349 So.2d 417 (La.App. 4th Cir. 1977); Campo v. George, 347 So.2d 324 (La. App. 4th Cir. 1977); Vaughn v. New Orleans Public Service, Inc., 314 So.2d 545 (La.App. 4th Cir. 1975); Aime v. Hebert, 282 So.2d 566 (La. App. 4th Cir. 1973).

      . As a practical matter, some of the lower courts have been using substantially the same approach involving intentional torts and criminal acts of third persons on public passenger carriers’ vehicles notwithstanding their purported adherence to the “highest care” standard. Orr v. New Orleans Public Service, Inc., supra; Aime v. Hebert, supra. See also Brown v. New Orleans Public Service, Inc., 376 So.2d 176 (La.App. 4th Cir. 1979); Higgins v. New Orleans Public Service, Inc., 347 So.2d 944 (La.App. 4th Cir. 1977); Vaughn v. New Orleans Public Service, Inc., supra.


source: Caselaw Access Project

author:
CUTRER, Justice Ad Hoc.
     LEMMON, Justice,
      REDMANN, Justice Pro Tem.,

license: Public Domain

text:
    STATE of Louisiana v. Mibon HUDGINS.
    No. 80-KA-2887.
    Supreme Court of Louisiana.
    June 22, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John Craft, Louise Korns, Asst. Dist. Attys., Beverly Zervigon, student practitioner, for plaintiff-appellee.
    Michael Gallagher, John Standesh, Loyola Law School Clinic, New Orleans, for defendant-appellant.
   CUTRER, Justice Ad Hoc.

Defendant, Mibon Hudgins, was charged by bill of information with the theft of property valued at $160.86, a violation of La.R.S. 14:67. Defendant filed a motion to suppress evidence on February 21, 1980. A hearing was held on February 25, 1980. The trial court denied defendant’s motion on March 10, 1980. On March 13, 1980, after defendant waived trial by jury, he was found guilty of theft of property valued at $107.89. Defendant waived delays and was sentenced to serve six months in parish prison. Sentence was suspended and the accused was placed on active probation for one year. Defendant now weeks review of the trial court’s denial of his motion to suppress before the court. The defendant appeals on the basis of two assignments of error.

ASSIGNMENT OF ERROR NUMBER I

The first assignment of error brings up the issue of whether the trial court erred by overruling defendant’s motion to suppress the evidence. This assignment encompasses two issues.

The defendant first argues that there was not reasonable cause for his detention. The defendant further contends that the search of the shopping bag, which he carried, was illegal.

Evidence adduced at the hearing on the motion to suppress showed the following:

Horace J. Thomas was employed as a store detective by Maison Blanche, Inc., at their Canal Street store in the city of New Orleans. The 72 year old defendant, Mibon Hudgins, was also employed by Maison Blanche as a security guard. Each Sunday at 9:00 A. M. Thomas would arrive at the closed store to relieve the defendant who worked the night shift. Thomas testified that he had been relieving the defendant each Sunday for approximately 9 years. The defendant customarily left the store carrying a shopping bag. The bag, each Sunday, appeared to be only partially filled and did not present any particular basis for concern by Thomas. For several Sundays, prior to the day in question, however, Thomas had noticed that defendant would leave with a full shopping bag or, on one occasion, a box which was closed and tied. Thomas informed his supervisor of defendant’s recent activity but it was decided to wait and further observe the activities of the defendant.

On January 6,1980, when Thomas arrived to relieve the defendant, the accused was again carrying a very full shopping bag with a napkin placed over the top which obstructed the view of the contents. Thomas asked to check the bag as the two stood in the store’s doorway. The defendant replied that it contained his personal belongings and attempted to walk away, heading for the sidewalk. Thomas pulled him back into the store and reloeked the door. He reminded defendant of the store’s policy that an employee may be searched for packages upon demand. The defendant again refused to allow his bag to be checked. Thomas then went to a telephone and attempted to call his supervisor and, as he did, the defendant started to walk back into the store. Thomas approached the defendant and began wresting the bag from him. The bag fell to the floor and the merchandise (including aprons, bowls and a cookie maker) was exposed and could be seen by Thomas. The defendant was then handcuffed and held for the police.

La.C.Cr.P. art. 215 provides as follows:

“A. A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.
‘A peace officer may, without a warrant, arrest a person when he has reasonable grounds to believe the person has committed a theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee shall constitute reasonable cause for the officer making the arrest.”

This statute provides that a person may be detained if the detaining officer, merchant or employee has reasonable cause to believe that such person has committed a theft of goods held by a merchant.

Reasonable cause for an investigating detention is something less than probable cause. It requires, however, that the detaining officer have articulable knowledge of particular facts sufficiently reasonable to suspect the detained person of criminal activity. State v. Edsall, 385 So.2d 207 (La.1980).

The determination of whether a merchant, employee or officer had reasonable cause to detain a person suspected of shoplifting is a factual question to be decided by the trier of fact. The decision of the trial judge that reasonable cause to detain the defendant existed in this case will not be reversed in the absence of a manifest abuse of discretion. Under the facts and circumstances, as heretofore reiterated, the trial court’s ruling, that defendant’s detention was lawful, cannot be considered an abuse of discretion.

Having held the defendant’s detention valid under art. 215, we next inquire into the legality of the search.

Article 215 allows the use of “reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes.” Implicit in this provision for detention is the authority to search the person of the suspect, or articles in his possession. That search, of course, must be reasonably related to the investigatory purposes of the detention, and conducted in a reasonable manner. State v. Nelson, 354 So.2d 540 (La.1978).

In this case, Thomas physically prevented the accused from leaving the store once he refused to allow inspection of his shopping bag. The defendant was escorted back into the store where Thomas attempted to call his supervisor. Defendant again made an attempt to leave by going back into the store. Thomas’ belief, that either the defendant might escape or that the evidence would be lost, destroyed or returned to its rightful places in the store, would justify Thomas’ actions which consisted of wresting the bag from defendant, which bag fell to the floor, exposing the merchandise. The force used by Thomas in the face of defendant’s attempt to avoid a detention and search was reasonable and legally justified under the facts presented.

This case is distinguishable from that presented in State v. Nelson, supra, where the suspect shoplifter was cuffed, strip-searched and, when it was believed that the stolen merchandise was in his mouth, grabbed around the neck and held until he spat blood. The unreasonable physical measures used in that case were not present here.

As the initial detention of defendant and subsequent search of his possessions were reasonable and valid under the circumstances, this assignment has no merit.

ASSIGNMENT OF ERROR NUMBER II

In this assignment, defendant complains that the trial court erred by allowing hearsay testimony to prove the identity of the merchandise and its value.

At defendant’s trial, the state witness (and sole witness), Horace Thomas, the store detective who detained the accused, was asked to identify the shopping bag the defendant had attempted to remove from the store and the items that were found in it. Thomas was asked if he could identify the merchandise as having come from Mai-son Blanche. Defendant objected on the ground that the witness hadn’t been qualified to make such an identification. The State then proceeded to qualify Thomas to make such identification.

In response to the prosecutor’s questions, the witness testified that pursuant to his employment as a store detective at Maison Blanche he had been given authority to testify on behalf of the store in court proceedings. Thomas stated that he had acted in such a capacity in the past and had also served as an agent of Maison Blanche. ■ He further stated that he was familiar with the method in which the store tagged its merchandise and could easily identify the items as property of Maison Blanche. The defendant then repeated his objection which was overruled by the trial court. The defendant assigns that ruling as error, asserting that the testimony was hearsay.

As set forth in State v. Bazile, 386 So.2d 349, 352 (La.1980):

“Hearsay evidence is testimony in court, or written evidence, of an out-of-court statement offered.to show the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court asserter. State v. Martin, 356 So.2d 1370 (La.1978); McCormick on Evidence, § 246 (2d ed 1972). The traditional exclusion of hearsay evidence is based upon considerations of unreliability and of potential unfairness to the accused to permit the introduction of out-of-court statements which cannot be test ed by cross-examination of the out-of-court declarant. State v. Arbuthnot. 367 So.2d 296 (La.1979).”

The testimony of Thomas was not hearsay, however. Before the admission of this testimony, the State laid an adequate foundation for such identification testimony. The witness then identified the exhibits as the merchandise that was seized from the defendant when he was detained in the store. The witness also identified the evidence as having originally been the property of Mai-son Blanche by recognizing his identification marks and the price and inventory tags that were attached thereto.

The identification testimony of Thomas was properly admitted into evidence. In the case of State v. Paster, 373 So.2d 170 (La.1979), this court stated:

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case.. .. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. Lack of positive identification goes to the weight of the evidence rather than to its admissibility. Ultimately, connexity is a factual matter for determination by the trier of fact. State v. Drew, 360 So.2d 500 (La.1978).”

The identification of objects by Thomas goes to the weight of such evidence rather than its admissibility.

The defendant also contends that Thomas was not qualified to testify as to the value of the merchandise. The record reflects that Thomas was asked to identify each item as being one of the items contained in the bag of defendant. As he identified each item he read the price reflected on the price tags of ten of the thirteen items sought to be introduced. The remaining three items contained no price tags but the price was marked upon the item. Thomas was not called upon to express any opinion as to value.

The identification testimony of Thomas was properly admitted by the trial court. The trial court was free to give the testimony such weight as it saw fit in making a determination of identification and value.

The record reflects that thirteen items were identified by Thomas but three of those items contained no price tag. The price was marked upon the item by Thomas’ supervisor, after he ascertained the value by calling Maison Blanche. The record reflects that the trial court did not consider these three items in arriving at a total value of the merchandise introduced into evidence. The trial court, in arriving at the value of $107.89, only considered the value set out on the identified price tags of the remaining ten items. We find no error in this determination of value of the property stolen.

This assignment of error lacks merit.

For these reasons the conviction and sentence of defendant are affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

REDMANN, J. Pro Tem., dissents with reasons.

LEMMON, Justice,

concurring.

I do not necessarily agree with the statement in the majority opinion that C.Cr.P. art. 215 implicitly grants a merchant the authority to search a person who has been legally detained “for questioning” under the article. It is not necessary, however, to decide that issue in this case.

Here, Thomas was a commissioned officer who had the right to search defendant, because he had reasonable grounds to believe defendant had committed a theft of goods held for sale by the merchant.

REDMANN, Justice Pro Tem.,

dissenting.

This Court is unconstitutionally constituted and an accused is denied due process of law by his or her case’s being referred to it instead of the Louisiana Supreme Court as constituted by La.Const. Art. 5, §§ 1, 3 and 4, to which this Court should order this case referred.

See the writer’s dissent, State v. Petterway, La.1981, 403 So.2d 1157, 1161.

       Judges Cecil C. Cutrer, Court of Appeal, Third Circuit; William V. Redmann and Thomas J. Kliebert, Court of Appeal, Fourth Circuit; participated in this decision as Associate Justices ad hoc; joined by Associate Justices Pascal F. Calogero, Jr; James L. Dennis; Fred A. Blanche, Jr. and Harry T. Lemmon.

      . This witness testified that he had been issued a commission by the city.

      . Also given the store’s policy authorizing the search of employees’ packages-upon demand, defendant here had little or no reasonable expectation of privacy in his shopping bag.

      . It is necessary for the State to establish the value of the property subject to a theft as La.R.S. 14:67 establishes severity of penalties according to the value of the property stolen.

      . Moreover, as an employee defendant had consented to having his packages searched on demand when leaving the store.


author: MARCUS, Justice. DIXON, Chief Justice

text:
    DRYADES SAVINGS AND LOAN ASSOCIATION v. Frank LASSITER, Commissioner of Financial Institutions For the State of Louisiana, et al.
    No. 81-CA-0508.
    Supreme Court of Louisiana.
    June 22, 1981.
    C. Allen Hennesy, Edward J. McCloskey, of McCloskey, Dennery, Page & Hennesy, New Orleans, for plaintiff-appellant.
    William J. Guste, Jr., Atty. Gen., Kenneth C. DeJean, Asst. Atty. Gen., for defendant-appellee.
   MARCUS, Justice.

Dryades Savings and Loan Association instituted this action against Frank Lassi-ter, Commissioner of Financial Institutions, and the Department of Commerce, State of Louisiana. It is alleged that Dryades, a building and loan corporation organized under the laws of this state and domiciled in the City of New Orleans, is doing business in the Parishes of Orleans, Jefferson, St. Bernard, Plaquemines and St. Charles. Pursuant to La.R.S. 6:852, Dryades made application to establish a branch office in Slidell, St. Tammany Parish, Louisiana, following the guidelines set forth in section C thereof. Nonetheless, the Commissioner disapproved Dryades’ application for a branch office stating “that there is no need for a branch office in Slidell at this time.” Dryades prayed for judgment declaring La. R.S. 6:852(C) unconstitutional as an improper delegation of legislative authority and revoking, vacating and setting aside the disapproval of its request by the Commissioner to open a branch office in Slidell. Alternatively, Dryades prayed that, should the statute be declared constitutional, judgment be rendered in its favor revoking, vacating and setting aside the denial of its application on the ground that the action of the Commissioner was arbitrary and capricious and that the Commissioner be ordered to approve the establishment of a branch office at a designated location in Slidell.

Defendants then filed an exception of no cause of action alleging that the district court was bound by the decision of First Federal Savings and Loan Association of Concordia Vidalia v. Smith, 327 So.2d 657 (La.App. 1st Cir.), writ denied, 329 So.2d 431 (La.1976), which affirmed the constitutionality of La.R.S. 6:852(C). The district court maintained the exception. The court of appeal reversed and remanded, finding that First Federal Savings and Loan Association of Concordia Vidalia v. Smith, supra, did not address the issue of whether La.R.S. 6:852(C) delegated to the Commissioner power constitutionally reserved to the legislative branch. Dryades then filed a motion for summary judgment, requesting that La. R.S. 6:852(C) be declared an unconstitutionally broad delegation of legislative power. The district court granted summary judgment declaring the statute invalid “as an unconstitutional delegation of legislative authority.” Defendants appealed that judgment to this court in accordance with La.Const. art. 5, § 5(D) (1974).

The sole issue presented for our review is whether the district judge properly granted a summary judgment. Finding that he erred in doing so, we reverse and set aside the summary judgment in favor of plaintiff and remand the case to the; district court for further proceedings witjhout reaching the issue of the constitutionality of La.R.S. 6:852.

La. Code Civ.P. art. 966 provides in pertinent part:

The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavit^, may move for a summary judgment in his favor for all or part of the relief for wh'ich he has prayed. (Emphasis added.)'

It is clear that a summary judgment may grant less than all of the relief prayed for. La. Code Civ.P. arts. 968 and 1915. However, a summary judgment must grant at least some of the relief prayed for by one of the parties. La. Code Civ.P. art 966; Smith v. Hanover Insurance Co., 363 So.2d 719 (La.App. 2d Cir. 1978); Beckham v. Hartford Accident and Indemnity Co., 137 So.2d 99 (La.App. 3d Cir. 1962).

In the instant case, plaintiff’s prayer for relief in its petition requested that there be judgment “declaring La.R.S. 6:852(C) unconstitutional and revoking, vacating and setting aside the disapproval of petitioner’s request to opén a branch office in Slidell, Louisiana made pursuant to said unconstitutional statute.” (Emphasis added.) Alternatively, petitioner prayed that, should the statute be found constitutional, judgment be rendered in its favor revoking, vacating and setting aside the Commissioner’s disapproval of its application and ordering him to approve the establishment of the requested branch office. Plaintiff’s motion for summary judgment, however, requested only that La.R.S. 6:852(C) be declared unconstitutional. It did not ask the court to revoke, vacate or set aside the Commissioner’s denial of the application, nor did the summary judgment motion request the alternative relief prayed for in the petition. Consequently, the summary judgment rendered by the district court declared only that the statute was unconstitutional. The judgment did not determine whether the Commissioner’s denial of plaintiff’s application should be revoked, vacated or set aside and thus neither adjudicated nor affected the rights of the parties to the lawsuit. Hence, we conclude that the summary judgment neither granted nor denied any of the “relief in whole or in part” claimed by the moving party and was thus unauthorized by our code of civil procedure.

In addition, the use of a motion for summary judgment to determine the issue of the constitutionality of the statute in controversy would result in piecemeal adjudication and appeal. As Judge Pike Hall, Jr. stated in Smith v. Hanover Insurance Co., supra:

Plaintiff’s use of the motion for summary judgment to obtain a ruling on his cause of action without seeking any part of the relief he claims is an unauthorized use of a procedural vehicle and illustrates the problem of piecemeal adjudication and appeal which can result from the misuse of provisions intended to streamline our civil procedure.

In the instant case, if plaintiff’s use of a motion for summary judgment were allowed to obtain a ruling on an issue of law, that is, whether or not La.R.S. 6:852(C)is an unconstitutional delegation of legislative authority, our courts would still be required to adjudicate plaintiff’s claim for relief, that is, whether or not it is entitled to a judgment revoking or setting aside the Commissioner’s denial of its request to establish a branch office. The problem of piecemeal adjudication and appeal referred to in Smith would be present in this case. We therefore conclude that the district judge erred in granting plaintiff’s motion for summary judgment on the constitutional issue alone.

DECREE

For the reasons assigned, the summary judgment in favor of plaintiff is reversed and set aside, plaintiff’s motion for summary judgment is denied and the case is remanded to the district court for further proceedings; judgment for costs to await the final determination of the cause.

DIXON, C. J., dissents with reasons.

DENNIS and LEMMON, JJ:, dissent.

DIXON, Chief Justice

(dissenting).

The statute might not be unconstitutional but the summary judgment procedure ought to be available to plaintiff to test that issue.

I respectfully dissent.

      . Suit was initially filed against only the Commissioner in the Civil District Court for the Parish of Orleans. Upon defendant’s exceptions of improper venue, lack of procedural capacity and unauthorized use of summary proceeding, the district court sustained the exception of improper venue and transferred the action to the Nineteenth Judicial District Court for the Parish of East Baton Rouge. The district judge noted in his reasons for judgment that the Department of Commerce was the proper party defendant and that “this matter is not a summary proceeding, ... the issue other than the constitutionality being a factual one.” Subsequently, Dryades amended its petition adding the Department of Commerce as a party defendant.

      . La.R.S. 6:852 provides:
      A. A branch office is a legally established place of business of the association, other than the home office, authorized by the board of directors and approved by the commissioner.
      B. Each association shall be operated from the home office. All branch offices shall be subject to direction from the home office.
      C. No association may establish or maintain a branch office without the prior written approval of the commissioner. Notwithstanding the definition of “primary lending area”, no branch office shall be established or maintained except within one hundred miles of the place where the association is domiciled. Each application for approval of the establishment and maintenance of a branch office shall state the proposed location thereof, the need therefor, the functions to be performed therein, the estimated volume of business thereof, the estimated annual expense thereof, and the mode of payment therefor. Each such application shall be accompanied by a budget of the association for the current earnings period and for the next succeeding semiannual period, which reflects the estimated additional expense of the maintenance of such a branch office. Upon the receipt by the commissioner of such an application, he shall determine whether the establishment and maintenance of such office will unduly injure any properly conducted existing association or federal association in the community where such branch office is proposed to be established. If he finds that no undue injury is likely to result and that the establishment and maintenance of such branch office is advisable, he may approve the application.

      .393 So.2d 165 (La.App. 1st Cir. 1980).


author: PER CURIAM

text:
    STATE of Louisiana v. Melvin ECROYD and Jo Ann Ecroyd.
    No. 81-KA-0166.
    Supreme Court of Louisiana.
    July 1, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Margaret A. Coon, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Salvador J. Liberto, Jr., Indigent Defender Program, for defendant-appellant.
   PER CURIAM

Affirmed.

WATSON, J., dissents as to the sentence of Jo Ann Ecroyd.


author: PER CURIAM.

text:
    STATE of Louisiana v. Andrew JOSEPH, Jr.
    No. 80-KA-2787.
    Supreme Court of Louisiana.
    July 2, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David Paddison, Lance Africk, Louise Korns, Asst. Dist. Attys., for plaintiff-appellee.
    John M. Lawrence, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
   PER CURIAM.

Affirmed.

CALOGERO, J., dissents, being of the view there is merit in assignment of error 9.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Joseph N. MARCAL, III, Respondent.
    No. 64889.
    Supreme Court of Louisiana.
    July 2, 1981.
   ORDER

Based upon this Court’s concurrence with the opinion of the Committee on Professional Responsibility that the crimes of which Joseph N. Marcal, III has been convicted constitutes serious crimes, the necessary elements of which reflect upon said attorney’s moral fitness to practice law:

IT IS ORDERED BY THE COURT, that JOSEPH N. MARCAL, III be and he is hereby suspended from the practice of law and said attorney’s license to practice is hereby suspended.

It is further ordered that the Committee institute the necessary disciplinary proceedings against JOSEPH N. MARCAL, III, seeking his disbarment or other remedy deemed appropriate, all in keeping with Article XV of the Articles of Incorporation of the Louisiana State Bar Association.


author: DENNIS, Justice,

text:
    STATE of Louisiana v. Edmond GUIDRY.
    No. 67193.
    Supreme Court of Louisiana.
    July 21, 1981.
   DENNIS, Justice,

dissenting.

I would affirm the trial court’s decision to grant the motion to suppress. The search of defendant’s residence was unreasonable and prohibited by our constitutions because the affidavit in support of the search warrant did not establish probable cause to believe stolen property was located at the residence at that time.

Accordingly, I respectfully dissent.


author: DENNIS, Justice, dissenting.

text:
    Dennis ROPER v. Pamela J. DAILEY.
    No. 67019.
    Supreme Court of Louisiana.
    July 21, 1981.
   ON REHEARING

DENNIS, Justice, dissenting.

I respectfully dissent.

The majority opinion overrules the longstanding precedent that a party attacking the return of the officer on citation must establish facts to the contrary by clear and convincing evidence. In my opinion the rule was a wise one based on the practical consideration that busy deputies cannot possibly recall the details of each personal service months or even years after the event. The interest of society and the judicial system in the finality and security of default judgments should not be taken lightly. Because of these considerations, a party attacking a judgment on the grounds he was not served with citation should not be allowed to capitalize on a deputy’s lack of perfect recall, which few humans possess, to nullify a court’s judgment on a bare pre-vponderance of evidence.


text:
    Donald DEVILLE v. Mr. and Mrs. Lloyd LAGRANGE.
    No. 66997.
    Supreme Court of Louisiana.
    July 21, 1981.
   DENNIS, Justice,

dissenting.

The trial judge was in the best position to assess what the majority describes as “a voluminous amount of largely conflicting evidence” received regarding whether the natural father was not entitled to custody because of neglect, abandonment and mental unfitness. I would uphold his ruling and reverse the court of appeal decision which awards custody to the natural father. Therefore, I respectfully dissent.


text:
    STATE of Louisiana v. Terry BAYLIS.
    No. 65327.
    Supreme Court of Louisiana.
    July 21, 1981.
   DENNIS, Justice,

dissenting.

I respectfully dissent. Defendant’s statements to law enforcement officials and the evidence obtained as a result of those statements should have been suppressed. I believe the state did not bear its burden of proof of showing that the statement made to the sheriff was made freely and voluntarily. Nor did the state prove that the seizure of the murder weapon was not tainted by defendant’s prior wrongfully induced statement made to the district attorney.


text:
    STATE of Louisiana v. Sam BOOKER, Jr.
    No. 65384.
    Supreme Court of Louisiana.
    July 21, 1981.
   DENNIS, Justice,

concurring.

I respectfully concur. Although I feel that the defendant was denied due process because he was convicted upon a charge of which he was not given adequate notice and against which he had no chance to defend, I disagree with the majority’s rationale suggesting that insufficiency of the evidence is the basis for the reversal of the defendant’s conviction.


text:
    STATE of Louisiana v. James WILLIAMS.
    No. 65199.
    Supreme Court of Louisiana.
    July 21, 1981.
   DENNIS, Justice,

dissenting.

I dissent for the reasons assigned by Chief Justice DIXON and by Justice CAL-OGERO.


text:
    Alain R. SELIGMAN v. Darryl J. TSCHIRN.
    No. 81-C-0535.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Darryl J. Tschirn, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. No. 13964.

Denied, on the showing made.

DIXON, C. J., and CALOGERO and DENNIS, JJ., would grant the writ.


author: DENNIS, J.,

text:
    STATE of Louisiana, ex rel. Roy Aloysius AUDLER v. Warden Frank BLACKBURN et al., Louisiana State Penitentiary.
    No. 81-KH-0410.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re Roy Aloysius Audler, applying for writ of habeas corpus, and/or supervisory writs. Parish of Jefferson. No. 76-2624.

Denied.

DENNIS, J.,

would grant an evidentiary hearing on relator's claim that he was not properly Boykinized in view of -the absence of a transcript of the Boykin proceedings.


text:
    Robert JAMES et al. v. George E. BARNES and Central Mutual Insurance Company.
    No. 81-C-0936.
    Supreme Court of Louisiana.
    April 27, 1981.
   In re George E. Barnes and Central Mutual Insurance Company, applying for remedial writs. Parish of Orleans. No. 80-8946.

Writ denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Eugene BROXTON.
    No. 81-K-0823.
    Supreme Court of Louisiana.
    May 1, 1981.
   In re Eugene Broxton, applying for writ of habeas corpus. Parish of Vernon. No. 24814.

Denied.

DENNIS, CALOGERO and BLANCHE, JJ., would grant the writ.


text:
    STATE ex rel. James M. LEWIS v. Frank BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-1008.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re James M. Lewis, applying for writs of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Claiborne. No. 10420 and 10421.

Granted. Trial court ordered to furnish relator with transcript of Boykin hearing.


text:
    STATE of Louisiana ex rel. Larry SALTZMAN v. Sheriff Freddie PITRE and Warden Alfred Embry.
    No. 81-KH-0900.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Larry Saltzman, applying for writs of certiorari. Parish of Iberville.

The motion to withdraw application is granted.


text:
    STATE of Louisiana ex rel. Floyd A. ST. ANDRE v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-1134.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Floyd A. St. Andre, applying for writ of habeas corpus. Parish of East Baton Rouge.

Application transferred to district court for action thereon.


text:
    STATE of Louisiana In the Interest of Randy Lee BOWLING.
    No. 81-C-0910.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Office of Human Development of the Department of Health and Human Resources of the State of Louisiana, applying for reconsideration of granted writ of April 17, 1981, on writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 12,245.

Reconsideration denied.


text:
    STATE of Louisiana, ex rel. William S. JOHNSON v. STATE of Louisiana, Jenny S. Hampton, Criminal District Court Reporter, Section “B”.
    No. 67320.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re William S. Johnson, applying for remedial writs. Parish of Orleans. Criminal District Courts. No. 263-196.

Denied. Contentions relating to inaccuracies in the trial transcript can be explored in connection with relator’s pending appeal.


text:
    STATE of Louisiana ex rel. Kevin E. SEWARD v. CRIMINAL DISTRICT COURT.
    No. 67752.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Kevin E. Seward, applying for remedial writ. Parish of Orleans. No. 263-19.

Writ denied.


text:
    STATE of Louisiana ex rel. Napolean HARPER v. STATE of Louisiana.
    No. 80-KH-1621.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Napolean Harper, applying for writ of habeas corpus. Webster Parish. No. 47606.

Writ denied.


text:
    STATE of Louisiana ex rel. William S. JOHNSON v. Charles C. FOTI.
    No. 80-KH-1660.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re William S. Johnson, applying for remedial writ. Parish of Orleans. No. 263-196.

Denied.


text:
    STATE of Louisiana v. Weldon HILL.
    No. 81-K-1276.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Weldon Hill, applying for writs of certiorari, prohibition, and mandamus. Orleans Parish. No. M-109-387.

Writ granted. We have been informed that a preliminary examination on one of the alleged offenses will be held at 9:30 a.m. Wednesday, May 20, 1981. It is ordered that the preliminary examination shall be held at that time on all offenses which relator has allegedly committed or relator shall be released without bail, on charges as to which there has been no probable cause determination.


text:
    Henry SALLES, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 81-C-1094.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Warren A. Smith and McLean Trucking Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 395 So.2d 942.

Denied.

MARCUS and WATSON, JJ., would grant the writ.


text:
    James Keith EAVES v. McLEOD BROTHERS CONTRACTORS, INC., et al.
    No. 81-C-1088.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re James Keith Eaves, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Allen. 395 So.2d 437.

Denied.

DIXON, C. J., and BLANCHE, J., would not consider this application because it was not timely filed.


text:
    TOLEDO BEND PROPRIETORS v. SABINE RIVER AUTHORITY of the State of Louisiana, and the Joint Operating Board, Toledo Bend Project.
    No. 81-C-1066.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Sabine River Authority of the State of Louisiana and the Joint Operating Board, Toledo Bend Project, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Sabine. 395 So.2d 429.

Denied.


text:
    Charles R. CASSIDY, et al. v. BILLY M. CORPORATION.
    No. 81-K-1064.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Charles R. Cassidy, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Jefferson Davis. 396 So.2d 951.

Denied.

WATSON, J., recused.


text:
    TRUNKLINE GAS COMPANY v. Alfred RAWLS, Jr. and John D. Smith.
    No. 81-C-1053.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Trunkline Gas Company, applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of West Carroll. 394 So.2d 1250.

Denied.


text:
    Joseph Maxie PIERCE v. COLORING PROPERTIES, INC.
    No. 81-C-0935.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Joseph Maxie Pierce, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 396 So.2d 528.

Denied.

CALOGERO, DENNIS and LEMMON, JJ., would grant the writ.


text:
    T. J. IVY, Sr. v. AMERICAN ROAD INSURANCE COMPANY.
    No. 81-C-1092.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re T. J. Ivy, Sr., applying of certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 398 So.2d 165.

Granted.


text:
    Alice Miller, wife of/and Zigmund BIELAWSKI v. Alvin J. LANDRY, Jr.
    No. 81-C-1099.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Alice Miller, wife of/and Zigmund Bielawski, applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 397 So.2d 861.

Writ denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana, et al. v. WILCO CONSTRUCTION CO., INC., et al.
    No. 81-C-1149.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re State of Louisiana, et al., applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 398 So.2d 1150.

Denied.

CALOGERO, J., would grant the writ.


text:
    Annie Lou BRANCH, et vir. v. Edward J. O’BRIEN, et al.
    No. 81-C-1093.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re State Farm Mutual Automobile Insurance Company, applying for writs of cer-tiorari, or review, to the Court of Appeal, Second Circuit. Parish of Caddo. 396 So.2d 1372.

Denied.


text:
    Tommie Laine DOTSON v. Stanley Keith DOTSON.
    No. 81-C-1278.
    Supreme Court of Louisiana.
    May 21, 1981.
   In re Stanley Keith Dotson, applying for writ of certiorari, review, mandamus, and/or prohibition and request for stay order. Parish of Ouachita. No. 80-1989-DR.

Denied.


text:
    Norris D. JACKSON v. TRI-STATE ELEVATOR COMPANY, INC., et al.
    No. 81-C-1285.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Norris D. Jackson, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Catahoula. 398 So.2d 199.

Denied.


text:
    STATE of Louisiana ex rel. Roy CLARK, Jr. v. STATE of Louisiana.
    No. 81-KH-0827.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Roy Clark, Jr., applying for writs of mandamus. Parish of St. Tammany. No. 46011.

Writ granted. The District Court is ordered to act on the petition.


text:
    STATE of Louisiana ex rel. Lloyd WILSON v. STATE of Louisiana.
    No. 81-KH-0955.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Lloyd Wilson, applying for writs of mandamus. Parish of East Baton Rouge. No. 10-73-6968.

Granted. Boykin transcript ordered provided relator.


text:
    STATE of Louisiana v. Charles BUTLER.
    No. 81-K-1089.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Charles Butler, applying for writs of certiorari or review. Parish of Orleans. Number 251-482.

Writ granted.


text:
    STATE of Louisiana v. Corbie Lynn WILLIAMS.
    No. 81-K-1124.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Corbie Lynn Williams, applying for writs of certiorari, prohibition and mandamus. Parish of Vernon. Nos. 33421 and 33422.

Granted.


text:
    STATE of Louisiana, ex rel. Frederick JOHNSON v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-1173.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Frederick Johnson, applying for writs of certiorari, and habeas corpus. Parish of Vernon. No. 27875.

Granted. Out of time appeal ordered.


text:
    STATE of Louisiana v. John Reed CAMPBELL.
    No. 81-K-1212.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 256-975.

Granted.


text:
    STATE of Louisiana ex rel., Michael ROBERTSON v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION “A” State of Louisiana.
    No. 81-KH-1238.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Michael Robertson, applying for remedial writs. Parish of Orleans. Nos. 270— 083 and 271-81.

Granted. Relator is to be furnished a copy of his Boykin transcript.


text:
    STATE of Louisiana v. Malcolm ALEXANDER.
    No. 81-O-1207.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Malcolm Alexander, on motion for leave to appeal out-of-time. No. 80-1260. Parish of Jefferson.

Out of time appeal granted.


text:
    STATE of Louisiana v. Debbie J. HOLLENDER.
    No. 81-K-1232.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Debbie J. Hollender, applying for writ of review. Parish of Terrebonne. Nos. 102701-102703.

Writ granted in part, denied in part. State is ordered to advise relator whether arrest was by virtue of an arrest warrant and if one exists to furnish relator copies of warrant and affidavit in support thereof.


author: DIXON, C. J.,

text:
    STATE of Louisiana, ex rel. James O’CONNER, Jr. v. EAST BATON ROUGE PARISH, 19TH JUDICIAL DISTRICT COURT.
    No. 80-KH-2230.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re James C. O’Conner, Jr., applying for reconsideration of denied writ, of February 2, 1981. Parish of East Baton Rouge. No. 8-76-48.

Denied.

DIXON, C. J.,

concurs in the denial. Relator’s argument is based on his own miscalculation of his good-time release date as January instead of March.


text:
    STATE of Louisiana, ex rel. Ernest M. SERIO v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0241.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Ernest M. Serio, applying for reconsideration of denied writ of May 6, 1981. Parish of Jefferson. No. 76-2281.

Writ denied.


text:
    STATE of Louisiana, ex rel. Roy Aloysius AUDLER v. Frank BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 81-KH-0410.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Roy Aloysius Audler, applying for reconsideration of denied writ of April 27, 1981. Parish of Jefferson. No. 76-2624.

Writ denied.


text:
    STATE of Louisiana v. Eugene BROXTON.
    No. 81-K-0823.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Eugene Broxton, applying for reconsideration of denied writ of May 1,1981. Parish of Vernon. Nos. 24813 and 24814.

Denied.


text:
    STATE of Louisiana, ex rel. Tyronne WRIGHT, Sr. v. Rudolph F. BECKER, Judge, Parish of Orleans.
    No. 81-KH-0753.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Tyronne Wright, Sr., applying for writ of habeas corpus. Parish of Orleans. No. 265-580.

Writ application transferred to district court for action on petition.


text:
    STATE of Louisiana, ex rel. Eric JONES aka Earl Coleman v. Honorable Frank A. MARULLO, Judge, Criminal District Court, Section D.
    No. 80-KH-1691.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Eric Jones aka Earl Coleman, applying for writ of mandamus. Parish of Orleans. No. 205-978.

Denied.


text:
    STATE of Louisiana, ex rel. Douglas Wayne JOHNSON v. Warden Roger AUCOIN.
    No. 80-KH-2216.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Douglas Wayne Johnson, applying for writ of mandamus. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana, ex rel. Roy SAWYER v. Matthew BRANIFF, Judge, Criminal District Court.
    No. 80-KH-2423.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Roy Sawyer, applying for writs of mandamus and prohibition. Parish of Orleans. No. 257-074.

Denied.


text:
    STATE of Louisiana, ex rel. Feltus STEWART v. STATE of Louisiana.
    No. 81-KH-0024.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Feltus Stewart, applying for writs of certiorari and mandamus. Parish of Orleans. No. 251-454 Section “D”.

Denied.


text:
    STATE of Louisiana, ex rel. Maurice G. SMITH v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0189.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Maurice G. Smith, applying for writ of habeas corpus. Parish of Orleans. No. 267-354.

Denied. Relator must apply first to district court.


text:
    STATE of Louisiana, ex rel. James W. SIMMONS v. Edwin A. LOMBARD, Clerk, Criminal District Court, et al.
    No. 81-KH-0314.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re James W. Simmons, applying for writ of mandamus. Orleans Parish. No. 267-071.

Denied. Clerk has agreed to furnish all requested documents to relator except transcript, which will be furnished to relator’s attorney.


text:
    STATE of Louisiana, ex rel. Earnest TURNER, Jr. v. Ross MAGGIO, Warden.
    No. 81-KH-0437.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Earnest Turner, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of Natchitoches.

Writ denied.


text:
    STATE of Louisiana, ex rel. Charles ROBINSON v. HONORABLE JUDGES OF the 15TH JUDICIAL DISTRICT COURT, PARISH OF VERMILION.
    No. 81-KH-0463.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Charles Robinson, applying for writ of mandamus, and motion to proceed in forma pauperis. Parish of Vermilion, No. 203-95 — CR162-76.

Denied.


text:
    STATE of Louisiana, ex rel. Randall FRANKS v. PRESIDING JUDGE, ORLEANS CRIMINAL DISTRICT COURT.
    No. 81-KH-0479.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Randall Franks, applying for writs of certiorari, mandamus and habeas corpus. Parish of Orleans. No. 262-307.

Denied.


text:
    STATE of Louisiana, ex rel. Eric JONES a/k/a Earl Coleman v. Frank A. MARULLO, Judge, Criminal District Court, Section “D”.
    No. 81-KH-0509.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Eric Jones a/k/a Earl Coleman, applying for writ of habeas corpus and remedial writs. Parish of Orleans. No. 226753.

Writ denied.


text:
    STATE of Louisiana, ex rel. Jerome POSEY v. STATE of Louisiana.
    No. 81-KH-0783.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Jerome Posey, applying for writ of certiorari, prohibition and mandamus. Parish of'Orleans. No. 249-014.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Ronald LITTLE v. Judge Rudolph F. BECKER, III, Section “E” Criminal District Court, Parish of Orleans.
    No. 81-KH-0886.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Ronald Little, applying for writs of mandamus. Parish of Orleans. No. 268-040.

Writ denied. Moot.


text:
    STATE of Louisiana, ex rel. Thomas JOHNSON, Jr. v. CLERK OF COURT, 21st Judicial District Court, Parish of Tangipahoa, State of Louisiana.
    No. 81-KH-0951.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Thomas Johnson, Jr., applying for remedial writs. Parish of Tangipahoa. No. 42386.

Writ denied. Moot.


text:
    STATE of Louisiana, ex rel. Joseph C. ANDERSON v. Patrick J. CANULETTE.
    No. 81-KH-1006.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Joseph C. Anderson, applying for remedial writ. Parish of St. Tammany. No. 78998.

Writ denied.


text:
    STATE of Louisiana, ex rel. Leonard J. NICHOLAS v. STATE of Louisiana.
    No. 81-KH-1061.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Leonard J. Nicholas, applying for remedial writs. Parish of Orleans. No. 279-419.

Denied.


text:
    STATE of Louisiana, ex rel. Donald Wayne MOORE v. N. H. KNOX, Custodian, (Warden, Superintendent, Jailor, or Authorized Person Having Custody of Petitioner).
    No. 81-K-1096.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Donald Wayne Moore, applying for writ of certiorari. Parish of Madison. No. 78-602.

Writ denied.


text:
    STATE of Louisiana v. Michael D. HARGROVE.
    No. 81-K-1106.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Michael D. Hargrove, applying for writs of certiorari, or review. Parish of Caddo. No. 115081.

Denied.


text:
    STATE of Louisiana, ex rel. Charles L. CLARK v. Frank C. BLACKBURN, Warden.
    No. 81-KH-1131.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Charles L. Clark, applying for writs of habeas corpus. Parish of Bossier.

Denied.


text:
    STATE of Louisiana v. Katherine H. BUESS.
    No. 81-K-1138.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Katherine H. Buess, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Union. No. 25593.

Denied.


text:
    STATE of Louisiana, ex rel. Robert JONES, and Lloyd Stewart v. Honorable H. Charles GAUDIN, the 24th Judicial District Court, Parish of Jefferson, Division “G”, State of Louisiana.
    No. 81-KH-1167.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Robert Jones and Lloyd Stewart, applying for writ of mandamus. Parish of Jefferson. No. 76-1224.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Samuel PROCTER v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1169.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Samuel Procter, applying for remedial writs. Parish of Terrebonne. No. 66446.

Writ denied.


text:
    STATE of Louisiana, ex rel. Michael A. GAYLOR v. Warden, Donald R. GUILLORY, Wade Correctional Center.
    No. 81-KH-1172.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Michael A. Gaylor, applying for writs of habeas corpus, certiorari and mandamus. Parish of Ouachita. No. 37-015.

Denied.


text:
    STATE of Louisiana, ex rel. Glenn RICHARDSON v. Frank C. BLACKBURN, Warden.
    No. 81-KH-1185.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Glenn Richardson, applying for remedial writs. Parish of Calcasieu. No. 7838-73.

Denied.


text:
    STATE of Louisiana, ex rel. Wallace E. COLEMAN, Jr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1186.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Wallace E. Coleman, Jr., applying for writ of certiorari, review and stay order. Parish of Vermilion. No. 20942.

Writ denied.


text:
    STATE ex rel. Jimmy TROSCLAIR v. Frank C. BLACKBURN, Warden et al.
    No. 81-KH-1187.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Jimmy Trosclair, applying for writs of habeas corpus, supervisory and certiorari. Parish of Jefferson. No. 75-640.

Denied.


text:
    STATE of Louisiana v. Shelby DELAHOUSSAYE.
    No. 81-K-1193.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re State of Louisiana, applying for writs of certiorari, or review. Parish of Orleans. No. 278-276.

Denied.


text:
    STATE of Louisiana, ex rel. Anthony PARKER v. Frank C. BLACKBURN, Warden et al.
    No. 81-KH-1201.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Anthony Parker, applying for writs of habeas corpus. Parish of Orleans. No. 261-213.

Denied.


text:
    STATE of Louisiana v. Carlwynn J. TURNER.
    No. 81-K-1213.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Carlwynn J. Turner, applying for writ of review, prohibition, mandamus and for a stay order. Parish of Tangipahoa. No. 44535.

Writ denied Adequate remedy by review m event of conviction.


text:
    STATE of Louisiana v. Allen Tracy LANE.
    No. 81-K-1215.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Allen Tracy Lane, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 107877.

Denied.


text:
    STATE of Louisiana v. Zane Lanier GREENE.
    No. 81-K-1216.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Zane Lanier Greene, applying for writs of certiorari, prohibition, and mandamus. Parish of East Baton Rouge. No. 10-80-701.

Denied.


author: SARTAIN, Judge.

text:
    Severino RODRIGUEZ v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 10872.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Ronald F. Plaisance, New Orleans, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for defendant-appellant.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   SARTAIN, Judge.

New Orleans Public Service, Inc. appeals the judgment of the First City Court for the Parish of Orleans which awarded the plaintiff damages for medical expenses and personal injuries sustained by his son as a result of an altercation which occurred on one of its street cars. We affirm.

Rodolpho Rodriguez, plaintiff’s 14-year old son, boarded a St. Charles Avenue street car at its intersection with Calhoun Street. He was accompanied by his young friend, Michael Hammer. Already on the street car were two young females and at least two adults, referred to in the testimony as “tourists.” Rodriguez and Hammer testified that shortly after they boarded the street car the two females commenced to make derogatory and insulting remarks towards them. They got up and moved several seats away. The insulting epithets continued for approximately 20 blocks. At one point Rodriguez and Hammer stated that the insults were so loud that the “tourists” turned and looked to their direction. Throughout this period of time the motorman on the street car, John Yancy, gave no indication that he was aware of the incidents taking place behind him.

As the street car reached the intersection of Carrollton and Oak Streets the two females arose to exit. As they passed young Rodriguez a large handbag of one of the females “slapped me across the face.” Young Rodriguez reacted instantly by throwing up his arms and rising. In doing so he knocked one of the females over and against one of the seats across the aisle. Immediately thereafter one of the females attacked Rodriguez with a seam ripper, inflicting superficial wounds on his lower left forearm, upper left arm, upper right arm and right chest. Yancy stopped the street car immediately and separated the youths. The females immediately left the scene. Rodriguez and Hammer got off the street car and went across the street to a local drug store to obtain first aid assistance.

After having received first aid assistance young Rodriguez and Hammer boarded another street car, and as they approached the end of the line they saw Yancy. Yancy then made inquiry concerning the extent of Rodriguez’s injuries and called for a supervisor to investigate the matter.

Yancy’s testimony is to the effect that he was totally unaware of any disturbance on his street car until the scuffling ensued. He did not hear the verbal abuse directed to the youths by the two females. He stated that he did not call his supervisor at Car-rollton and Oak because he thought that a supervisor would be waiting at the Carroll-ton and Claiborne intersection. While he did admit to observing blood on Rodriguez’s clothing and some blood on the seat of the street car he still determined to wait until he reached the Carrollton and Claiborne intersection before reporting the incident.

There is testimony establishing that defendant’s company rules require the operators of its vehicles to immediately report any incident involving personal injury. In this respect Yancy should have called for supervisory assistance at the Carrollton and Oak intersection. It is also company policy that its operators should do everything reasonably within their power to avoid altercations that might result in injury to its fare-paying customers.

Although a common carrier is not an insurer of its passengers’ safety, it is held to a high degree of care and is liable for the slightest negligence which contributes to an accident that causes injury to a passenger. Gross v. Teche Lines, 207 La. 354, 21 So.2d 378, 382 (La.1945). Failure of a fare-paying passenger to reach his destination safely creates a prima facie case of negligence and places the burden of proof on the carrier. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979).

Several cases of assault on one passenger by another passenger have arisen in recent years. In Aime v. Hebert, 282 So.2d 566 (La.App. 4th Cir. 1973), the court held that “a carrier can be liable for an assault by one passenger on another passenger where there is reason for the carrier employee to anticipate the assault and a failure on his part to take such action as may be practicable under the circumstances to prevent the assault from being committed or to interfere with its execution.” See also Higgins v. New Orleans Public Service, Inc., 347 So.2d 944 (La.App. 4th Cir.1977); Orr v. New Orleans Public Service, Inc., 349 So.2d 417 (La.App. 4th Cir.1977); Campo v. George, 347 So.2d 324 (La.App. 4th Cir. 1977); Carter v. New Orleans Public Service, Inc., 335 So.2d 105 (La.App. 4th Cir. 1976); and Skipper v. New Orleans Public Service, Inc., 338 So.2d 771 (La.App. 4th Cir.1976).

While we are not favored with oral or written reasons from the trial judge it is inherent in his decision that he determined that Yancy, the operator of the street car, had failed to discharge the duty he owed a fare-paying passenger. We find no manifest error in this determination. The only witnesses to this incident were the operator (Yancy) and the two youths (Rodriguez and Hammer). The identities of the two females were never determined.

It is apparent from reading the record that for a distance of 15 to 20 blocks Yancy had every opportunity to discern the events taking place to his rear and that his actions under these circumstances were insufficient to relieve the defendant of liability.

For the above reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: LEAR, Judge.

text:
    Evelyn REED v. GENERAL MOTORS CORPORATION, Right Way, Inc. and Duplessis Cadillac, Inc.
    No. 14011.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied July 27, 1981.
    Stephen Miller Irving, Baton Rouge, for Evelyn Reed.
    James T. Curtis, Garland, Tex., John C. Combe, Jr. and John G. Gomila, Jr., New Orleans, for Wright-Way, Inc.
    Ben Louis Day, Baton Rouge, for Duples-sis Cadillac, Inc.
    Stephen K. Conroy, Metairie, for General Motors Corporation.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Appellant, the purchaser of a new 1978 Cadillac automobile, brought suit against the manufacturer (General Motors Corporation), the seller (Duplessis Cadillac, Inc.) and the manufacturer-supplier of optional hand controls (Wright-Way, Inc.), which optional equipment was installed in appellant’s automobile by defendant, Duplessis. The bases of appellant’s suit is an alleged defect in the automobile and an alleged defect in the optional equipment and its negligent installation by defendant Duples-sis.

Appellant alleges in her petition that the above referred to defects caused four separate and distinct accidents, which appellant has dated as follows: (1) immediately prior to June 12, 1978; (2) immediately prior to September 27, 1978; (3) October 12, 1978; and (4) November 5, 1978.

This instant action, seeking to recover the damages sustained (both to property and personal injury) in all four accidents, was filed by appellant on September 28, 1979. Thereafter, all three defendants filed peremptory exceptions of prescription and/or improper cumulation, alleging that appellant’s cause of action as to accidents numbers one and two had prescribed. These exceptions were sustained by the trial court and appellant’s claims with respect to the alleged accidents numbers one and two were dismissed with prejudice. Appellant seeks review of that judgment.

Although there was extensive discussion and argument in the trial court and in the briefs submitted to this court concerning the characterization of appellant’s cause of action, as being either in tort or redhibition, for the reasons set forth below, we find it unnecessary for us to make such a determination.

Generally, prescription does not commence to run until plaintiff has actual or constructive knowledge of the tortious act, the damage and the causal relation between the tortious act and the damage. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970); Duhon v. Saloom, 323 So.2d 202 (La.App. 3rd Cir., 1975), writs refused 325 So.2d 794 (La.1976). In discussing constructive notice, the Supreme Court, in Cartwright, supra, stated:

“... Whatever is notice enough to excite attention and put the owner on his guard and call for an inquiry is tantamount to knowledge or notice of every thing to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription.”

The doctrine of contra non valentem agere nulla currit praescriptio, relied upon by appellant, which means that prescription does not run against a person who could not bring his suit, can be applied where either (1) the cause of action has not manifested itself with sufficient certainty to be susceptible of proof in a court of justice, or (2) the defendant concealed information or misled and lulled the plaintiff into inaction. Brown v. State, Through Department of Correction, 354 So.2d 633 (La.App. 1st Cir., 1977). This doctrine applies, however, only when the plaintiff’s ignorance, as to the existence of such facts that would entitle him to bring suit, is not willful and does not result from negligence. Cartwright, supra.

Each of the first two accidents were very minor in nature and caused only minimal property damage to appellant’s automobile. After each accident, appellant brought her car to Duplessis to have the property damage repaired and to have minor adjustments made to the car. Appellant testified that on each of these occasions, when she returned the automobile to Duplessis for repair, she discussed with the service employees a “high idle” problem she was having with the car and asked that this be checked.

Concerning her knowledge of the cause of these accidents, appellant testified that “.... I did not know what was causing my continued difficulties . ... ” and “I had no idea that that [improperly installed hand controls] was the difficulty. I was grasping at anything I could find. I suggested that. I also suggested it might be the carburetor.”

Nowhere in appellant’s testimony does she state that she believed at that time that any particular problem had caused the accidents and she, in fact, testified that she at first did not even connect the first and second accident with each other. We also note that there is no evidence that appellant ever informed any of the defendants, including the Duplessis service employees, that she believed that they [defendants] were responsible for the damage which these accidents caused to her automobile. Further, appellant testified that, upon having the car returned to her after each servicing, Duplessis’ employees merely informed her that she would have “no more trouble with it.”

From the evidence introduced at the hearing on the exception, it appears that defendant Duplessis’ service employees did not inform appellant of the existence of any defect in her automobile, and in fact led her to believe that no problem (defect) existed which had caused these minor accidents.

Even assuming that the facts known to appellant at the time of the first and second accidents may have created in her a legal duty to inquire, it appears that she made reasonable inquiry and based on defendant’s service employees’ statements to her, formed what she now alleges to be the mistaken belief that no defect then [at the time of the first and second accidents] existed in her automobile.

In this instant case, appellant had some vague problem with her automobile, which she alternately attributed to the accelerator or the idle setting or even possibly the carburetor. Her speculation in attempting to assist the service employees and request that they “check” what she thought might be a problem, does not indicate sufficiently certain knowledge by áp-pellant of any defect, which may have existed in the automobile. Thus, we believe that appellant’s cause of action had not, at the time of the first and second accidents, manifested itself with sufficient certainty to be susceptible of proof in a court of justice. This seems even more true when we consider the fact that defendant’s service employees, who we assume to be experts in the field of automobile defects and repair, apparently could not themselves find any defect which they causally linked to appellant’s minor accidents. It seems clear from appellant’s testimony that they at least did not inform appellant of any defect, and appellant relied upon this in assessing the situation.

For these reasons, we find that the running of prescription was suspended as to accidents one and two. Thus, as to these causes of action, appellant’s suit was timely filed and the judgment of the trial court is in error. Therefore, the judgment of the trial court dismissing appellant’s suit as to accidents numbers one and two is reversed and this cause is remanded to the trial court for further proceedings in conformity herewith. All costs of this appeal are to be paid by defendants-appellees.

REVERSED AND REMANDED.

      . The petition and judgment refer to one of the defendants as “Right Way, Inc.”; defendant’s pleadings indicate that its proper name is “Wright-Way, Inc.”


author: COVINGTON, Judge.

text:
    Sara Renée Crifasi LOSAVIO v. Bobby Joseph GAUTHIER et al.
    No. 14152.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied July 27, 1981.

      Peter J. Losavio, Jr., Baton Rouge, for plaintiff-appellant Sara Renée Crifasi Losa-vio.
    A. L. Carbonette, Baton Rouge, for defendant-appellee Bobby Joseph Gauthier.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the District Court ordering the cancellation of the judicial mortgage on certain immovable property described as Lot 753, Villa del Rey Subdivision, Parish of East Baton Rouge, Louisiana.

On September 3,1976, a money judgment was signed in favor of plaintiff, Sara Renée Crifasi Losavio, against Bobby Joseph Gau-thier, for the amount of $6,671.59, plus interest, attorney’s fees and costs, which judgment was duly recorded in Mortgage Book 2805, Page 744, of the mortgage records of East Baton Rouge Parish. The judgment was rendered in suit No. 193,420, brought by Losavio against Gauthier and William T. Winfield. Gauthier was sued as the maker of a promissory note and Win-field as the party who had assumed payment of the note in an act of sale with assumption of mortgage dated December 18, 1969. The judgment reserved both Lo-savio’s and Gauthier’s rights against Win-field. Plaintiff was not a party to the transaction between Gauthier and Winfield, and did not release Gauthier from his obligation on the note. Thereafter, on September 21, 1976, judgment in favor of Losavio against Winfield was signed.

Subsequently, on August 25, 1977, Gau-thier filed for bankruptcy, No. 77-373 U.S. District Court for the Middle District of Louisiana. He listed the Losavio debt in the proceeding. The Bankruptcy Judge, on May 9, 1978, disclaimed Lot 753, Villa del Rey Subdivision, East Baton Rouge Parish, Louisiana, sometimes referred to as Palisades Drive, and Lot 76, Belfair Homes Subdivision, East Baton Rouge Parish, Louisiana, sometimes referred to as Bateman Circle, which were owned by Gauthier and his wife. Discharge in bankruptcy was granted the bankrupt on February 2, 1978.

Then, Gauthier instituted this action on August 4, 1980, by filing a rule to show cause pursuant to LSA-R.S. 9:5166 against Losavio and the Clerk of Court and Ex-Officio Recorder of Mortgages to have the inscription of the aforesaid judicial mortgage cancelled from the official records of the parish. On August 22,1980, the rule was heard, resulting in the trial court’s judgment signed August 29, 1980, ordering the cancellation of the mortgage only insofar as it affected the Palisades Drive property; the Bateman Circle property was not affected by the order of cancellation. From this judgment, Losavio perfected a suspen-sive appeal.

Under the provisions of LSA-R.S. 9:5166, a person discharged in bankruptcy is entitled to have all judgments against him cancelled unless the holders thereof can prove a secured interest in the property by showing that the debtor has an equity therein over and above all encumbrances bearing against it. Kayda v. Johnson, 252 So.2d 708 (La.App. 1 Cir. 1971).

To prove that she had a secured interest in the Palisades Drive property, Losavio offered only the testimony of Thomas A. Maher, an appraiser having about 25 years experience, mainly in the Baton Rouge area, who was accepted by the trial judge as an expert in the field of real estate appraisals. Mr. Maher made an appraisal at the request of Losavio’s counsel as of August, 1977 (the date of the bankruptcy). He determined the fair market value of the Palisades Drive property to be $127,000 by the market data method and $128,850 by the cost approach method. On behalf of Gauthier, Thomas B. Legleu, vice-president in commercial loans with American Bank and Trust Company of Baton Rouge, testified that as of August, 1977, the bank had two collateral mortgage loans in the amounts of $40,000 and $20,000 on Lot 753, Villa del Rey Subdivision (the loans were in excess of $60,000, but the mortgage only secured that amount); the mortgage balance owed to Capital Savings and Loan Association was stipulated to be $54,093.46. These mortgage loans total $114,093.46. Gauthier, who testified that he was a real estate broker and in the construction business, stated that he had the property up for sale at the time of his bankruptcy, and that the only offer to purchase that he received was for $95,000. He was unable to sell it at an asking price of $125,000. In the bankruptcy proceedings, Gauthier placed a valuation of $120,000 on the property. Bryce Brunette also testified on behalf of Gauthier that he had tried to sell the Palisades Drive house for Gauthier. The original asking price was $125,000, but it was reduced to $110,000 in June of 1977. He received no offers at either price.

The appellant objects that the trial judge did not use the proper criteria and held the defendant in rule (the judgment creditor) to too high a standard of proof in determining fair market value and whether or not she had a secured interest. The record does not support any conclusion but that the appellant was only required to prove her case by a preponderance of evidence. LSA-R.S. 9:5166 expressly places the burden on the judgment creditor to prove that she has a “secured interest” in the property affected by the judgment. Kohnke v. Justice, 280 So.2d 665 (La.App. 4 Cir. 1973). As mentioned above, the only evidence offered by Losavio was the expert opinion of her appraiser, Mr. Maher. The weight to be accorded such expert opinions is stated in State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972), as follows:

“Expert opinions are not ordinarily conclusive. They are generally regarded as advisory in character. Unlike testimony to a fact, an opinion seeks only to assist the court in its effort to determine the ultimate fact. Thus opinions as to value are not binding on the trier of fact. Peiser v. Grand Isle, 224 La. 299, 69 So.2d 51 (1953); Housing Authority of New Orleans v. Gondolfo, 208 La. 1065, 24 So.2d 78 (1945); La. Power & Light Co. v. Dixon, 201 So.2d 346 (La.App. 1967); State v. Wagner, 233 Minn. 241, 46 N.W.2d 676 (1951); 31 Am.Jur.2d, Expert and Opinion Evidence, § 183.
“And there is no rule that a party cannot prevail unless the evidence produced to establish his case is harmonious and consistent throughout. Indeed, if that were the rule, success would rarely attend an attempt to prove an ultimate fact. Primm v. Market St. Ry. R. Co., 56 Cal. App.2d 480, 132 P.2d 842 (1943); Bitsekas v. Parechanian, 67 Cal.App. 148, 226 P. 974 (1924); Cf. Biaggini v. Toye Bros. Yellow Cab Co., 163 So. 780 (La.App. 1935); 30 Am.Jur.2d Evidence, § 1082. “Justice does not require a court to accept as an absolute verity the opinion of the expert witness of a party simply because it involves a value of property lower than that of another expert tendered by the same party. State, through Department of Highways v. Rapier, 246 La. 150, 164 So.2d 280 (1964).
“Instead, the effect to be given to opinion testimony is governed by the weight the trier of fact accords to that testimony. The weight testimony is entitled to receive is determined by the professional qualifications and experience of the expert, the facts and studies upon which his opinion is based and, in case of land appraisals, his familiarity with the locality. La. Power and Light Co. v. Dixon, 201 So.2d 346 (La.App. 1967). In all cases the possible bias of the witness in favor of the side for whom he testifies and the witness’ character and credibility bear upon the weight of the testimony.
“These are all matters for the trier of fact. And when, as in this case, testimony of the witnesses is contradictory, the finding of the trier of fact will not be overturned unless manifest error appears in the record. We find none here. Housing Authority of New Orleans v. Gondolfo, 208 La. 1065, 24 So.2d 78 (1945); 31 Am.Jur.2d, Expert and Opinion Evidence, §§ 181-184.”

The creditor has failed to show a secured interest in the property affected by the judgment ordering the cancellation. See Braud v. Morgan, 372 So.2d 221 (La.App. 1 Cir. 1978); Ferguson v. Citizens Bank & Trust Company, 265 So.2d 250 (La.App. 1 Cir. 1972).

Further, there is no merit to appellant’s assignment of error that the trial court failed to award cost of compliance with subpoenas and the expert witness fees. Such fees and costs can be fixed by rule after the final judgment. LSA-R.S. 13:3666; Spearman v. Barron, 351 So.2d 856 (La.App. 2 Cir. 1977); Bentley v. Industrial Fire Protection, Inc., 350 So.2d 982 (La.App. 2 Cir. 1977).

For the foregoing reasons, we affirm the judgment of the District Court appealed herein; the appellant is cast for costs of this appeal.

AFFIRMED.

      . LSA-R.S. 9:5166 provides:
      “Upon rule to show cause by any interested party against the clerk of court and ex officio recorder of mortgages of the several parishes and the recorder of mortgages for the parish of Orleans, the judgment creditor and a judgment debtor discharged in bankruptcy, the court shall order the cancellation of the inscription of any dischargeable judgment rendered twelve months previously unless the judgment creditor can prove that he continues to possess a secured interest in the property affected by such judgment, or any judgment rendered in a tort proceeding wherein the judgment debtor’s liability arose out of his wilful negligence, or any judgment for taxes due or any other judgment otherwise not discharged in bankruptcy. Added by Acts 1970, No. 588, § 1.”


author: CHIASSON, Judge.

text:
    SOLAR SUPPLY, INC. v. ARTIC AIR, INC. and Gray Hodges.
    No. 14154.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied July 27, 1981.

      James Farrier, Baton Rouge, for plaintiff-appellant Solar Supply, Inc.
    Eric A. Kracht, Baton Rouge, for defendants-appellees Artie Air, Inc., and Gray Hodges.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

• The only question raised on appeal is whether an officer of a corporation signing in a representative capacity is individually bound for the debts of the corporation on an open account.

Solar Supply, Inc. appeals the ruling of the trial court finding no personal liability on the part of Artie Air’s Vice-President, Gray Hodges, and dismissing him from plaintiff’s suit.

Suit was instituted by Solar Supply against the defendants, Artie Air and Gray Hodges, based on an open account Artie Air had with the plaintiff. Before the open account was started, Solar Supply required a credit application to be filled out. An application by Artie Air was completed by one of the plaintiff’s employees with Hodges signing at the bottom of the application. Immediately above Hodges’ signature appeared this language in pertinent part.

“I hereby understand and agree that should it become necessary to place this account for collection I shall personally obligate myself and my corporation, if any, to pay the entire amount due including twenty-five per cent (25%) collection and/or attorney’s fee, and all cost of collection, including court costs.
SIGNED s/S GRAY HODGES V. P.

TITLE”

Judgment was rendered against the corporation for the total amount due. Plaintiff makes no claim against this ruling but objects to the dismissal of Hodges by the trial court.

The trial court held the case of Donald M. Clement Contractor v. Demon, Inc., 364 So.2d 204 (La. App. 4th Cir. 1978), to be controlling in this matter. In that case a president of a corporation signed a promissory note qualifying his signature with the word, “president.” The Fourth Circuit found that La. R.S. 10:3 — 402 required a person’s signature to be made in a representative capacity if the individual signatory is to be relieved of personal liability.

Although that case is factually different from the present one, we find that the principle announced is controlling in this matter. Under the Clement, supra, decision the court was faced with a negotiable instrument. We are faced with a credit application filled out by a representative of a corporation. The last paragraph tries to create a continuing guaranty or a surety-ship on the part of one of the corporate officers.

We find that Hodges was only binding the corporation with his signature as Vice-President. Although the intention of the plaintiff may have been to bind a corporate officer individually, Hodges only signed in his representative capacity and not in an unqualified personal capacity.

This position is supported by the analogy to the Clement case and their-reliance on La. R.S. 10:3-402. Secondly, it is supported by the requirement that a surety agreement cannot be presumed but must be expressed. La. C.C. art. 3039. We cannot hold, therefore, that Hodges expressly agreed to be bound individually for the debts of the corporation by way of his qualified signature. See Livingston State Bank & Trust Co. v. Steel-Tek, Inc., 335 So.2d 482 (La. App. 1st Cir. 1976); Bricks Unlimited, Inc. v. Lemoine Homes, Inc., 380 So.2d 714 (La. App. 4th Cir. 1980); Frank Brigsten, Inc. v. Alpha Builders, Inc., 351 So.2d 777 (La. App. 4th Cir. 1977).

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.