author:
MARCUS, Justice.
     DIXON, Justice CALOGERO, Justice,

text:
    FIRST NATIONAL BANK OF CROWLEY v. GREEN GARDEN PROCESSING COMPANY, INC., et al.
    No. 64974.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
    Rehearing Denied April 7, 1980.

      Kenneth 0. Privat, Privat & Regan, Crowley, for defendant-applicant.
    Homer Ed Barousse, Jr., Edward, Stefan-ski & Barousse, Crowley, for plaintiffs-respondents.
   MARCUS, Justice.

The First National Bank of Crowley (Bank) instituted this action against Green Garden Processing Company, Inc. (Green Garden) to recover $95,528.12, representing the balance due on a promissory note executed by Green Garden, and for recognition of a collateral mortgage given by Green Garden to the Bank as security for the payment of said indebtedness. Also made party defendants were James B. Blackburn, John R. Leeper and Pierre Jules Maraist, who had executed separate continuing guaranties in the amount of $86,350.00 each.

After suit was filed, one of the guarantors, Leeper, received a discharge in bankruptcy and another, Blackburn, settled with the Bank for $33,000.00. The Bank then proceeded to trial before a jury on its claim against the remaining guarantor, Maraist, and to confirm a judgment of default against Green Garden. A verdict was returned by the jury in favor of the Bank and against Maraist for $33,000.00 which verdict was subsequently made the judgment of the court. The trial judge rendered a default judgment in favor of the Bank and against Green Garden in the amount of $75,062.66 plus attorney fees of $18,765.66. The judgment also recognized the collateral mortgage held by the Bank. The Bank appealed the judgment against Maraist. The court of appeal amended the judgment to increase the award to the Bank against Maraist to the sum of $57,566.66 plus $12,-510.44-as attorney fees and to make his liability in solido with Green Garden. On application of Maraist, we granted certiora-ri to review the correctness of this decision.

As surety for loans made by the Bank to Green Garden, three shareholders or prospective shareholders of the corporation, James B. Blackburn, John R. Leeper and Pierre Jules Maraist, signed separate but identical documents labeled “Continuing Guaranty.” Each guaranty was limited in amount to $86,350.00 plus interest and attorney fees. When Green Garden failed to pay, the Bank filed suit to recover the indebtedness. After suit was filed, Leeper received a discharge in bankruptcy and Blackburn settled with the Bank for $33,-000.00.

The sole issue presented for our consideration is the effect of the release of Blackburn on Maraist’s liability under the continuing guaranty agreement.

The agreement signed by Maraist is styled a “Continuing Guaranty.” By this contract, he guaranteed the payment of Green Garden’s indebtedness to the Bank. We consider the contract to be equivalent to a contract of suretyship. See Brock v. First State Bank & Trust Company, 187 La. 766, 175 So. 569 (1937); Citizens’ Bank & Trust Company v. Barthet, 177 La. 652, 148 So. 906 (1933). Accordingly, where the contract is silent, we may look to the provisions of the civil code governing the contract of suretyship to resolve differences between the parties. Where, however, the contract is not silent, the parties are bound by its contents, as agreements legally entered into have the effect of laws on those who have formed them. La.Civ.Code art. 1901; Louisiana Nat’l Leasing Corp. v. Family Pools, Inc., 345 So.2d 480 (La.1977).

Concerning the Bank’s right to release sureties, the Continuing Guaranty provides:

The Bank may, one or more times in its judgment grant extensions, take and surrender securities, accept compositions, release or discharge indorsers, guarantors or other parties, grant releases and discharges generally, make changes of any sort whatever in the terms of the contract or manner of doing business with the debtor and with other parties and •securities in relation thereto without notice to the undersigned, such notice being hereby specifically waived. [Emphasis added.]

We consider this provision to give the Bank the right to release sureties as it deems appropriate without affecting its right to full recovery from Maraist of Green Garden’s debts up to the dollar limit set in the contract. Because Blackburn is not a party before this court, we need not decide at this time whether, by this provision and by the Bank’s release of Blackburn, Maraist lost the right to seek contribution from him. We are concerned here only with the relationship between the creditor and the surety and not the relationship between the several sureties.

Maraist contends another clause of the contract mandates his discharge. That provision states:

I agree upon demand at any time, to pay to said Bank, its transferees or assigns, the full amount of said indebtedness up to the amount of this guaranty, plus all interest, attorney fees, other fees, and charges, as above set forth, becoming subrogated in the event of payment in full by me to the claim of said Bank, its transferees or assigns, together with whatever security it or they may hold against said indebtedness.

He argues that, because the Bank can no longer subrogate him to its right to collect from Blackburn, he need not pay.

Maraist misconstrues the agreement. It provides that the Bank shall subrogate him to whatever security it “may hold.” The Bank did not obligate itself to continue to hold for his benefit securities that it once may have held. Moreover, in the first of the above quoted provisions, Maraist specifically granted the Bank the right to take and surrender securities and to release and discharge guarantors in its judgment.

In sum, we hold that the release of Blackburn by the Bank did not discharge Ma-raist’s liability for the payment in full of Green Garden’s indebtedness to the Bank up to the amount of $86,350.00 plus interest and attorney fees.

The trial court rendered judgment against Green Garden in favor of the Bank for $75,062.66 plus $18,765.66 as attorney fees. The court of appeal rendered judgment against Maraist in favor of the Bank for $57,566.66 plus $12,510.44 as attorney fees. This amount is within the limits of the continuing guaranty. Accordingly, we must affirm the judgment of the court of appeal.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

SUMMERS, C. J., dissents.

DIXON, J., concurs with reasons.

CALOGERO and DENNIS, JJ., dissent and assign reasons.

DIXON, Justice

(concurring).

I respectfully concur in the result reached in the majority opinion, because it appears to me that the bank, by the three separate contracts of continuing guaranty, sought and received as much security as could be obtained from each guarantor, up to the limit expressed in each guaranty.

The contract is so broad in its effort to protect the bank in any contingency that it seems to have suggested exceptions where none exist. Each guarantor obligates himself for the payment of the indebtedness of Green Garden as if he himself (the guarantor) personally owed the money, making himself a party to the principal obligation and agreeing to pay the bank the full amount of Green Garden’s debt plus interest and fees, upon demand. Maybe because it is the print is so small that the obligation of Mr. Maraist has not been perfectly clear; nevertheless, the printed words of the contract leave him no room to defend, as long as Green Garden owes the bank: “I do furthermore bind and obligate myself, my heirs and assigns, in solido with said debtor, for payment of the said indebtedness precisely as if the same had been contracted and was due or owing by me in person, hereby agreeing to and binding myself, my heirs and assigns, by all terms and conditions contained in any note or notes signed or to be signed by said debtor, making myself a party thereto, hereby waiving all notice including notice of any such indebtedness and of demand, presetment (sic), protest or notice of demand or non-payment and of notice and all pleas of discussion and division and I agree upon demand at any time, to pay to said Bank, its transferees or assigns, the full amount of said indebtedness up to the amount of this guaranty, plus all interest, attorney fees, other fees, and charges, as above set forth, becoming subrogated in the event of payment in full by me to the claim of said Bank, its transferees or assigns, together with whatever security it or they may hold against said indebtedness.”

CALOGERO, Justice,

dissenting.

In my view, the Bank’s recovery should be limited to $43,175.00 plus interest and attorney’s fees thereon, defendant Maraist’s liability for such sums being in solido with Green Garden Processing Co., Inc., for the reasons which I express in detail hereinafter.

I take issue with the majority’s interpretation of the provisions of this Continuing Guaranty agreement. (See footnote 3 of the majority opinion for the text of the guaranty). I take issue with the majority’s refusal to respect the provisions of the Code on suretyship, in particular La.Civil Code art. 3058. And I also take issue with the majority’s conclusion that three continuing guaranties executed simultaneously for $86,350.00 (signed two months after a collateral mortgage note for the exact same amount, $86,350.00, and at a time when only $60,000.00 had been loaned) equals a gross exposure by the guarantors of $259,050.00 or three times $86,350.00 (facilitating the bank’s recovering more than $86,350.00, $37,440.75 from Blackburn and $57,566.66 from Maraist). I find this conclusion particularly untenable under the facts of this case because, here, the Court of Appeal found that the three guarantors were bound for a maximum of $86,350.00 (together) and the plaintiff did not seek writs here on that issue which should have made the issue final. Boswell v. Roy O. Martin Lumber Co., 363 So.2d 506 (La.1978); Jordan v. Travelers Lumber Co., 257 La. 995, 245 So.2d 151 (1971); and Footnote 7 of the majority opinion. Furthermore, to allow this result is to permit the Bank to accept Blackburn’s $37,440.75 (or $33,000.00 as the Court of Appeal and this Court have mistakenly determined) for an ostensible full release when in fact he is still liable for an additional sum which he will undoubtedly owe Maraist in contribution.

Because I view the facts in some respects differently from the majority (for example, the settlement with Blackburn was for $37,-440.75 not $33,000.00) I prefer to recite the facts in full notwithstanding that to some degree they are repetitious of what is in the majority opinion.

On April 8, 1975, Green Garden Processing Co., Inc. executed a Collateral Mortgage Note for $86,350.00. This note was given in pledge to plaintiff to secure a loan. As further security, on June 4, 1975, three shareholders or prospective shareholders of the corporation, James Blackburn, John Leeper and Pierre Jules Maraist, signed separate but identical documents labeled “Continuing Guaranty.” These guaranties were executed in favor of plaintiff and were limited in amount up to $86,350.00 (the same amount as the collateral mortgage note) plus interest and attorney’s fees. At this time the corporation was indebted to the Bank for $60,000.00. Each guarantor bound himself in solido with the principal debtor, Green Garden. By a note executed by the corporation on May 2, 1977, the corporation’s indebtedness to plaintiff was increased to $116,724.00.

Plaintiff instituted this action on November 10, 1977 to recover from Green Garden and the three individual guarantors the indebtedness due by the defendant corporation to the bank. On the date suit was filed, the corporation’s debt had been reduced to $95,528.12. On March 1, 1978, Leeper received a discharge in bankruptcy and was thereafter apparently dismissed from the litigation. The defendant Blackburn was also apparently dismissed by reason of settlement with plaintiff bank, for on August 7, 1978, a motion was filed by plaintiff requesting removal from the court record of the original guaranty executed by Blackburn. In that motion, plaintiff asserted that “this matter has been settled with defendant, James B. Blackburn.”

The case proceeded to trial before a civil jury against Maraist only, a default judgment against Green Garden being confirmed on the same trial date. A jury verdict was returned in favor of the bank and against Maraist for $33,000.00 plus interest and costs.

Plaintiff bank appealed, seeking an increase in the award to the full amount of its guaranty. Maraist answered the appeal, contending among other things, that his contract of guaranty was invalid for lack of consideration, and asking that the judgment be reversed. The Court of Appeal concluded that the judgment should be increased from $33,000.00 to $57,566.66 plus $12,510.44 attorney’s fees for the following reasons.

The court relied on the case of Louisiana Bank and Trust Co. of Crowley v. Boutte, 309 So.2d 274 (La.1975), interpreting it as requiring that the principal debtor and the individual guarantors all be included in determining the virile shares of each. Thus they concluded that the virile share of each guarantor (Maraist, Blackburn and Leeper) along with the principal debtor, Green Garden, was one-fourth of $86,350.00 and that their shares were increased by Leeper’s bankruptcy and consequent exclusion, to one-third. The court further concluded that after the settlement with Blackburn, his virile share (one-third) had to be deducted, leaving Maraist (along with Green Garden) liable solidarily for the remaining two-thirds of the $86,350.00 debt, or $57,-566.66. As so amended the Court of Appeal affirmed the judgment of the trial court.

Maraist’s first contention in the Court of Appeal, and now in this Court, is that there was no valid consideration to support Ma-raist’s contract of continuing guaranty. The Court of Appeal discussed this contention at length and recited the evidence in the record concerning the facts which gave rise to the execution of the continuing guaranties. I agree with their conclusion that this contention is without merit and the reasons given in their opinion.

Defendant’s second contention, in effect that the increase of the award to $57,566.66 is not supported by law and the evidence, is properly before us.

First of all, I believe that the Court of Appeal was correct in finding that the jury’s (and trial court’s) award of $33,000.00 was clearly wrong. There is simply no rational legal basis for an award in this sum. Presumably the jury chose that figure because it was the same amount which was paid by Blackburn in satisfaction of his obligation to the bank, according to the testimony of the bank’s agent Mr. Simo-neaux. On the other hand, the Court of Appeal’s award of $57,566.66 likewise cannot be substantiated.

As stated above, in order to gain an extension of credit to Green Garden, three individuals, Blackburn, Leeper and Maraist, stockholders or proposed stockholders of at least 20% of the stock of Green Garden, each signed a continuing guaranty dated June 4, 1975, in favor of the bank. In the guaranties, it was stated that they were executed in consideration of the bank’s extending credit to Green Garden. The guaranties were limited, only covering, I believe a maximum of $86,350.00 plus interest and attorney’s fees.

The majority opinion, in effect, has concluded that the three guarantors bound themselves for $86,350.00 each, equaling a gross exposure among them of $259,050.00 (three times $86,350.00). I think that a closer analysis of the facts surrounding the signing of these guaranties would lead to the conclusion that the three guarantors together bound themselves for $86,350.00 total. The continuing guaranties were executed less than two months after the execution of a Collateral Mortgage Note for $86,-350.00, the exact same amount as the guaranties. The guaranties were executed on the same day, signed by the same notary, and witnessed, with one exception on one instrument, by the same witnesses. At the time the guaranties were signed the corporation only owed the bank $60,000.00. It seems reasonable to assume that if the bank, an institution that deals with these types of transactions regularly, would have intended to secure $259,050.00, it certainly would have clearly stated that intention. This belief is reinforced by the fact that the Court of Appeal found that the total secured was $86,350.00 and the plaintiff did not seek writs here protesting the error of that conclusion. Additionally, since writs were not sought on this issue, it should not be changed by the majority in favor of the plaintiff. (See the majority’s own footnote 7 for the authority for this point.)

As stated in the majority opinion, a continuing guaranty agreement is the equivalent of a contract of suretyship, and where the contract is silent we must look to the provisions of the Code governing suretyship to resolve differences between the parties. However, I disagree with the majority’s position that the issue presented in this case is expressly covered by the continuing guaranty agreement that was signed by the parties.

The issue in this case, as stated by the majority, is the effect of the Bank’s release of Blackburn on Maraist’s liability to it.

The majority quotes the following section of the Continuing Guaranty and considers it conclusive on the issue:

“The Bank may, one or more times in its judgment grant extensions, take and surrender securities, accept compositions, release or discharge endorsers, guarantors or other parties, grant releases and discharges generally, make changes of any sort whatever in the terms of the contract or manner of doing business with the debtor and with other parties or securities in relation thereto without notice to the undersigned, such notice being hereby specifically waived.” (emphasis provided)

The majority has concluded that this sentence gives the Bank the right to release some sureties without affecting the rights of other co-sureties. I believe this determination is in error. In my view, this sentence deals only with notice requirements. It does no more than give the Bank the right to grant releases and discharges without notice to the signatory. Surely it can not seriously be contended that, by the signatory’s waiver of his right to be notified of the release by the Bank of another party, he has waived all his legal rights as a co-surety.

My Brother Dixon, in his concurrence, calls our attention to another sentence in the continuing guaranty. He contends that this sentence makes each signatory a principal obligor on any indebtedness of the corporation. I concede that this would be the literal meaning of the sentence if it were considered alone. However, it can not be considered in . a vacuum. The whole instrument and the intent of the parties must be considered.

This sentence is contained in an instrument which is styled “Continuing Guaranty.” As stated by the majority a guaranty is the equivalent of a suretyship. The suggestion that this sentence makes the signatory a principal obligor on any indebtedness of the corporation is absolutely inconsistent with the essence and nature of suretyship. It is of the very nature and essence of suretyship that there is an original principal obligation between a creditor and a debtor upon which the surety makes the accessory promise to the creditor to satisfy the debt if the debtor does not. La.Civ.Code art. 3035. If there is no such accessory obligation then there is no suretyship. The instrument that was signed by Maraist has never been alleged by the plaintiff to be anything other than a guaranty, and it can not be a guaranty and obligate the signatory as a principal obligor at the same time. To allow this result is to allow the Bank to present to the unwary party a document called a Guaranty, to tell him he is becoming a guarantor (as was done in this case) and to have him sign the “Guaranty” only to find out later that he is now a principal obligor.

At the least, this inconsistency creates a clear ambiguity in this instrument and it is well settled that ambiguities in a contract are interpreted against the confector. Kuhn v. Stan A. Plauche Real Estate Company, 249 La. 85, 185 So.2d 210 (1966); and La.Civ.Code art. 1958.

I believe, therefore, that the continuing guaranty is in fact silent on the question of the effects on one co-surety of the Bank’s release of another, and being silent, I believe that the provisions of the Code on Suretyship are controlling.

In every suretyship transaction there is a principal obligation between a creditor and the principal debtor upon which the surety-ship is based. La.Civ.Code art. 3035. Then, with respect to the suretyship transaction, there are three separate relationships as recognized by the Code: (1) the relationship between the creditor and the sureties which creates the accessory obligation; (2) the relationship between the principal debtor and the sureties; and (3) the relationship of the sureties among themselves. Each of these relationships is governed by articles contained in separate sections of the Code. Title XVI, Chapter 2, Section 1, Articles 3045-3051; Section 2, Articles 3052-3057; and Section 3, Article 3058, respectively.

The obligation of the principal debtor is, of course, to perform the obligation as he has contracted. The obligation of the surety, generally, is to perform the principal obligation if the principal debtor defaults. La.Civ.Code art. 3035. In a simple surety-ship where there is more than one surety, each surety has the right to plead division, requiring the creditor to divide the debt among the sureties, and to collect only their proportionate shares from each. La.Civ. Code art. 3049. The surety also has initially, the right to have the principal debtor’s property seized, or discussed, before the surety himself may be called upon to perform. La.Civ.Code art. 3045. However, La.Civ.Code art. 3045 further provides that the surety is allowed to waive this right of discussion by renouncing it, or effectively doing so by binding himself in solido with the principal debtor.

In this latter situation, the creditor can sue the surety on the debt without having first tried to collect from the principal debt- or. However, the surety’s obligation is still an accessory one and he may in turn recover all of what he has had to pay, from the debtor. La.Civ.Code art. 3052. If there is more than one surety for the same debtor and for the same debt (regardless of whether the sureties are bound in solido as among themselves), although any one of the sureties may be required to pay the whole debt to the creditor, such surety has, in addition to his rights against the debtor, a secondary right of recovery against the other sureties in proportion to the share of each. La.Civ. Code art. 3058.

In the present case, there was a loan transaction between First National Bank and Green Garden, constituting the principal obligation. This principal obligation was secured by the continuing guaranties of Blackburn, Leeper and Maraist. These three sureties each respectively bound themselves in solido with the principal debt- or, Green Garden. Their liability, together or separately, was limited to $86,350.00. At the time suit was filed there was an unpaid balance due of $95,528.12. Leeper was discharged in bankruptcy, exonerated from the debt and dismissed from the suit, thereby increasing the proportionate share of the other two sureties to one-half each as between themselves. La.Civ.Code art. 2058. Because each had bound himself in solido with the principal debtor, the creditor could sue either one of the two for the whole amount of the debt (up to the limits of the guaranty, $86,350.00) with each of them, sureties, having the right to claim contribution over against the other, his co-surety. La.Civ.Code art. 3045; and La.Civ.Code art. 3058. Plaintiff then settled with one of the two, Blackburn, discharging him from the debt. It is the import and/or consequence of this discharge which is at issue in determining the extent of Maraist’s remaining liability.

We turn to the applicable section of the Code, Title XVI, Chapter 2, Section 1, “Of the effects of Suretyship Between the Creditor and the Surety,” in particular Article 3045, since the sureties here had each bound themselves in solido with the principal debt- or. That article provides:

“The obligation of the surety toward the creditor is to pay him in case the debtor should not himself satisfy the debt; and the property of such debtor is to be previously discussed or seized, unless the security should have renounced the plea of discussion, or should be bound in solido jointly with the debtor, in which case the effects of his engagement are to be regulated by the same principles which have been established for debtors in soli-do.” (emphasis provided)

The jurisprudential interpretation of that article requires that the provisions governing solidary obligors be used to determine the effects of the suretyship between the creditor and the surety who has bound himself in solido with the principal debtor. Elmer Candy Co. v. Baumann, 150 So. 427 (La.App.2d Cir. 1933); and Louisiana Bank and Trust Co. of Crowley v. Boutte, supra.

In particular, with respect to the obligations involved between the creditor and the surety when the creditor settles with one of the sureties, La.Civ.Code art. 2203 requires the creditor to deduct the portion of the debt of the person to whom he has made the remission, from the total due, and to recover only the rest of the debt from the remaining obligor(s). However, in order to determine the portion of Blackburn’s which must be deducted, we have to look to the articles on suretyship, because this question concerns the relationship of the sureties among themselves, and that is governed by the suretyship articles. As stated in Aiavolasiti v. Versailles Gardens Land Dev. Co., 371 So.2d 755 (La.1979) while the relationship of surety to creditor is governed by the principles applicable to solidary obligors when the sureties bind themselves in solido with the principal debtor, “[i]t is an oversimplification of the relationship between the principal debtor, . . . and the individual guarantors to view them as co-debtors in solido for all purposes.” 371 So.2d 755 at 758.

Where several sureties for the same debt- or and for the same debt, bind themselves in solido with the principal debtor, renouncing the pleas of discussion and division, as was done here, each of them becomes liable to the creditor for the whole of the debt without the creditor having to first execute against the principal debtor. La.Civ.Code art. 3045. However, as between the sureties each surety owes only his virile share and the surety who pays the debt has his remedy against the other sureties for their shares. La.Civ.Code art. 3058.

Therefore, when we subtract the share of the discharged surety, Blackburn, as required by the second paragraph of La.Civ. Code art. 2203 (see footnote 6) We reduce the obligation of the sole remaining surety, Maraist, by one — half.

At the time of Blackburn’s release, the debt due was in excess of $86,350.00, the liability limit as contracted in the guaranty. Maraist’s maximum exposure of $86,350.00 was reduced by one-half with the release of the only remaining surety, Blackburn, to $43,175.00, plus a corresponding proportion of the attorney's fees and interest due and owing on Green Garden’s debt (the Green Garden note called for 25% attorney’s fees and certain prescribed interest).

Inasmuch as the bank prepared the contract and there ware no provisions within the guaranty expressly waiving the surety’s rights over against a co-surety, I believe that the contract does not abrogate or change the effects of the Code as outlined above.

Therefore, I respectfully dissent.

       Honorabie Jesse N. Stone, Jr. served as Justice Ad Hoc in the vacancy created by the resignation of Tate, J.

      . 371 So.2d 1294 (La.App. 3d Cir. 1979).

      . 373 So.2d 546 (La.1979).

      . Each agreement provided as follows:
      CONTINUING GUARANTY
      BEFORE ME, the undersigned Notary Public, and in the presence of the undersigned witnesses personally came and appeared:
      who do by these presents in CONSIDERATION OF THE FIRST NATIONAL BANK of Crowley, Crowley, Louisiana, at my (our) request, giving or extending terms of credit to
      GREEN GARDEN PROCESSING COMPANY, INC.
      POINT BLUE, EVANGELINE PARISH, LA. 70586
      hereinafter called “debtor.” I hereby give this continuing guaranty to the said First National Bank of Crowley, Crowley, Louisiana, hereinafter called “Bank” its transferees or assigns, for the payment in full, of any indebtedness, direct or
      contingent whether secured or unsecured, of said debtor to said Bank up to the amount of--EIGHTY SIX THOUSAND THREE HUNDRED FIFTY AND NO CENTS -DOLLARS,

        (S 86.350.00 \ plus all interest, attorney fees, other fees, and charges of whatsoever nature and kind, whether due or to become due and whether now existing or hereafter arising. The Bank may, one or more times in its judgment grant extensions, take and surrender securities, accept compositions, release or discharge indorsers, guarantors or other parties, grant releases and discharges generally, make changes of any sort whatever in the terms of the contract or manner of doing business with the debtor and with other parties and securities in relation thereto without notice to the undersigned, such notice being hereby specifically waived. The Bank may, without any notice to or consent of the undersigned, also apply all monies received from the debtor and others, or from securities, as it may think best, without in any way being required to marshal securities or assets, and any such application of monies shall not in any way alter, affect, limit or lessen the liability of the undersigned under this Guaranty. The Bank shall not be bound to exhaust its recourse against the debtor or other persons or upon the securities it may hold before being entitled to payment from the undersigned of the amount hereby guaranteed. I do furthermore bind and obligate myself, my heirs and assigns, in solido with said debtor, for payment of the said indebtedness precisely as if the same had been contracted and was due or owing by me in person, hereby agreeing to and binding myself, my heirs and assigns, by all terms and conditions contained in any note or notes signed or to be signed by said debtor, making myself a party thereto, hereby waiving all notice including notice of any such indebtedness and of demand, presentment, protest or notice of demand or non-payment and of notice and all pleas of discussion and division and I agree upon demand at any time, to pay to said Bank, its transferees or assigns, the full amount of said indebtedness up to the amount of this guaranty, plus all interest, attorney fees, other fees, and charges, as above set forth, becoming subrogated in the event of payment in full by me to the claim of said Bank, its transferees or assigns, together with whatever security it or they may hold against said indebtedness.
      IN THE EVENT this Continuing Guaranty is executed by more than one individual, it is understood and agreed that each individual shall be bound by all of the provisions of this continuing guaranty and for the payment in full of the entire amount stated above, plus all interest, attorney fees, other fees, and charges of whatever nature and kind in the same manner as if each individual were the only person executing this continuing guaranty. It is understood and agreed that this continuing guaranty does not supersede nor cancel pre-existing guaranty or guaranties given by any of the undersigned on behalf of the borrower named above but to the contrary shall be in addition thereto.
      IT IS EXPRESSLY AGREED that this continuing guaranty is absolute and complete, and that acceptance and notice of acceptance thereof by the Bank are therefore unnecessary and they are hereby expressly waived, and the same shall continue in force until written notice of its discontinuance shall be delivered to one of the executive officers of the said Bank, but such discontinuance shall not affect my liability on any debts and/or obligations of the debtor then existing, whether matured or not, nor the liability of any other party in the premises.
      THUS DONE, READ AND SIGNED before the witnesses and Notary hereinafter undersigned this 4 day of_JUNE_, 1975 .
      WITNESSES:
      Notary Public

      . La.Civ.Code art. 1901 provides:
      Agreements legally entered into have the effect of laws on those who have formed them.
      They can not be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.
      They must be performed with good faith.

      . La.Civ.Code art. 3058 provides:
      When several persons have been sureties for the same debtor and the same debt, the surety who has satisfied the debt, has his remedy against the other sureties in proportion to the share of each; but this remedy takes place only, when such person has paid in consequence of a lawsuit instituted against him.

      . This figure represents the amount owed to the Bank, including interest, at the time of the trial. It includes a credit for the amount the Bank received in return for its release of Blackburn ($33,000.00). See La.Civ.Code art. 2206.

      . We recognize that the judgment of the court of appeal is less than the amount of the judgment against Green Garden and less than the limits of the continuing guaranty. However, we cannot increase the award because the Bank did not appeal. Boswell v. Roy O. Martin Lumber Co., 363 So.2d 506 (La.1978); Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971); Polizzi v. Lotz, 240 La. 734, 125 So.2d 146 (1960).

      .There is some conflict in the facts as to the precise amount of Blackburn’s settlement. Two different releases (one was attached to the plaintiff’s brief to this Court and one was attached to defendant Maraist’s brief to this Court) indicated that Blackburn settled upon paying $8,000.00 cash and furnishing a promissory note for $29,440.75 ($37,440.75 total). However, the testimony at trial by plaintiffs witness was to the effect that the bank received $33,000.00 in payment from Blackburn. The bank’s ledger sheet, which was filed into evidence, shows a payment of $29,440.75 and a payment of $3,559.25, which together come to $33,000.00 (in addition to certain other unidentified payments or credits). However, for reasons stated later in this dissent, I do not feel that the exact amount of the settlement is critical to the determination of the issues presented.

      . This particular issue was not addressed in Boutte. As indicated in footnote two of that opinion, the question of the amount of each surety’s virile share was not before the Court.

      . Interestingly, not even the bank’s own ledger sheet reflected a balance on the principal debt that large. While the facts are a bit confusing, it is evident from the bank’s ledger relating to this loan transaction, that after crediting various payments, including the two by Blackburn totalling $33,000.00, there was on August 25, 1978, the date of the last entry, a balance due of only $48,354.81.

      . There are two other provisions in the continuing guaranty which could arguably be read to constitute an implied waiver of some of the rights of a surety; however, in view of the intent of the parties at the time of entering into the contract (that this was to be a guaranty or suretyship) we find that those provisions do not expressly or impliedly state that the signatories thereon agreed to forego the legal rights of a co-surety established by the Civil Code.
      The first of these provisions states:
      “The Bank, may without any notice to or consent of the undersigned, also apply all monies received from the debtor and others, or from securities, as it may think best, without in any way being required to marshal securities or assets, and any such application of monies shall not in any way alter, affect, limit or lessen the liability of the undersigned under this Guaranty.”
      The most likely meaning and/or intention of this language is that the bank reserves the right to apportion money received in connection with any debt of the prime debtor to such loan or loans of the debtor as it sees fit, without the signatory having the right to complain if not first applied to the debt upon which the signatory is the guarantor.
      Given its literal application, the language is nonsensical in at least one situation. Where there is only one debt of the debtor and a payment is applied, surely this language can not mean that the bank may receive it without in any way altering, affecting, limiting or lessening the liability of the signatory, for the signatory can not be made to pay $86,350.00 if the debt has been reduced below that sum by credited payments, by whatever source.
      Furthermore, there is nothing inconsistent in having the bank receive and apply money without its affecting the signatory’s legal obligation to the bank, on the one hand, and the signatory’s retaining the rights and privileges over against a co-surety as given him by the Code. What purports to hurt the bank here is not merely the receipt and application of a payment, but rather the bank’s releasing the co-surety with the attendant effect upon the right of the remaining co-surety. There is nothing in, the continuing guaranty about the bank’s having the right to release a surety notwithstanding the adverse legal effect upon a remaining co-surety.
      The third provision comprises the third to last paragraph of the instrument and reads as follows:
      “IN THE EVENT this Continuing Guaranty is executed by more than one individual, it is understood and agreed that each individual shall be bound by all of the provisions of this continuing guaranty and for the payment in full of the entire amount stated above, plus all interest, attorney fees, other fees, and charges of whatever nature and kind in the same manner as if each individual were the only person executing this continuing guaranty. It is understood and agreed that this continuing guaranty does not supersede nor cancel pre-existing guaranty or guaranties given by any of the undersigned on behalf of the borrower named above but to the contrary shall be in addition thereto.”
      This section is by its terms applicable only if a given continuing guaranty instrument is executed by more than one individual. That was not the case here as each continuing guaranty was signed separately by the respective sureties. Furthermore, and more significantly, the import of the paragraph is simply to assure that if there is more than one signatory (or surety), each will be bound for the full $86,-350.00 as between each surety and the creditor. This provision, like the two provisions above, does not indicate that the signatory waived his rights as a co-surety against his fellow co-sureties for contribution. If it did so provide, it would be inconsistent with an earlier provision in the contract recognizing the signatory’s rights of subrogation to any claims of the bank, and as such it would create ambiguity in the contract which, as stated above, is to be interpreted against the confector. Kuhn v. Stan A. Plauche Real Estate Co., supra.

      . La.Civ.Code art. 3058 provides as follows:
      “When several persons have been sureties for the same debtor and for the same debt, the surety who has satisfied the debt, has his remedy against the other sureties in proportion to the share of each; but this remedy takes place only, when such person has paid in consequence of a lawsuit instituted against them.”

      . La.Civ.Code art. 2203 provides:
      “The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.
      “In the latter case, he can not claim the debt without making a deduction of the part of him to whom he has made the remission.”

      . The principal debtor is not counted as a co-obligor in determining each surety’s share of the debt. Suretyship is an accessory obligation. La.Civ.Code art. 3035. The surety binds himself for another who is already bound. The principal debtor remains liable for the whole of the debt no matter how may sureties secure that debt. The principal debtor’s share of the debt is never less than the entirety (as between him and one or more of the sureties) irrespective of the release of one or more sureties. The sureties have a right to collect the whole of what they are forced to pay, from the principal debtor, and not merely a virile share. La.Civ. Code art. 3052. The principal debtor never becomes a solidary obligor with the sureties in the sense that as between them they are equally liable. He always remains liable for the whole debt, and the surety who pays the debt may recover the whole from him. This is the surety’s primary source of recovery. As a secondary source of recovery, the surety who has paid the debt may recover a proportionate share from each of the other sureties, and the proportions are determined by the number of sureties. La.Civ.Code art. 3058.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    Ira MAY v. MARKET INSURANCE COMPANY et al.
    No. 65635.
    Supreme Court of Louisiana.
    March 3, 1980.

      Oscar W. Boswell, II, Reggie, Harrington & Boswell, Crowley, for intervenor-appli-cant, Louisiana Bank and Trust Co.
    Arthur I. Robison, Allen, Gooch & Bourgeois, A Professional Law Corporation, Lafayette, for defendants-respondents.
   MARCUS, Justice.

Ira May instituted this action against several insurance companies to recover for a fire loss covered under certain insurance policies issued by them. Plaintiff also sought penalties and attorney’s fees. Louisiana Bank and Trust Company intervened as mortgagee of the insured property claiming part of the insurance proceeds under the mortgage clauses of the insurance policies, plus penalties and attorney’s fees.

After trial on the merits, the court concluded that the fire loss was in excess of the total insurance coverage and that defendants had arbitrarily, capriciously and without probable cause failed to make payment within sixty days after receipt of satisfactory proofs of loss and demands therefor. Accordingly, the trial court rendered judgments in favor of plaintiff and against defendants for the full amounts of their respective insurance policies, plus penalties and attorney’s fees. Judgment was also rendered in favor of intervenor and against plaintiff for the remaining secured debt owed by plaintiff at the time of the judgment to be paid from the proceeds received by plaintiff from defendants. The trial court also awarded intervenor judgment against defendants for attorney’s fees. Defendants appealed. Intervenor answered the appeal.

The court of appeal affirmed the trial court judgment insofar as it awarded to plaintiff the full limits under the policies with statutory penalties and attorney’s fees as against each insurer; however, it reduced the award of attorney’s fees to plaintiff, amended the trial court judgment as to the date from which legal interest began on the face amounts of certain of the policies, and reversed the trial court judgment insofar as it awarded attorney’s fees to interve-nor. Plaintiff and intervenor applied to this court for writs of certiorari. We denied plaintiff’s application, but granted that of intervenor to consider whether in-tervenor is entitled to penalties and attorney’s fees from defendants.

La.R.S. 22:658 provides:

All insurers issuing any type of contract other than [life and health and accident insurance] shall pay the amount of any claim due any insured including any employee under [the workmen’s compensation law] within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.

Under the above statute, in order for inter-venor to be entitled to recover penalties and attorney’s fees from the insurers, interve-nor must be an “insured” within the meaning of said statute.

Intervenor’s right to the insurance proceeds arises under the mortgage clauses of the several insurance policies. Mortgage clauses fall into two forms, the open or simple mortgage clause and the standard or union mortgage clause. The simple mortgage clause merely provides in effect that the proceeds of the policy shall be paid first to the mortgagee as his interest may appear; but the so-called standard or union mortgage clause is somewhat more specific in that it also provides that the mortgagee shall be protected against loss from any act or neglect of the mortgagor or owner, so that it shall not defeat the insurance so far as the interest of the mortgagee is concerned. Couch on Insurance § 42:648 (2d ed. 1963).

In the instant case, the several mortgage clauses are identical and provide:

Loss or damage, if any, under this policy (on building) shall be payable to the mortgagee (or trustee) named in this policy, as its interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property nor by the occupation of the premises for purposes more hazardous than are permitted by this policy. Provided that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same. Provided, also, that the mortgagee (or trustee) shall notify this Company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee), and unless permitted by this policy, it shall be noted thereon and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of use thereof; otherwise this policy shall be null and void.
This Company reserves the right to cancel this policy at any time as provided by its terms, but in such ease this policy shall continue in force for the benefit of the mortgagee (or trustee) for ten days after notice to the mortgagee (or trustee) of such cancellation, and shall then cease, and this Company shall have the right, on like notice, to cancel this agreement. Whenever this Company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owner, no liability therefor existed, this Company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made under all securities held as collateral to the mortgage debt, or may at its option pay to the mortgagee (or trustee) the whole principal due, or to grow due, on the mortgage, with interest and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subro-gation shall impair the right of the mortgagee (or trustee) to recover the full amount of his, her or their claim.

Clearly, these mortgage clauses are standard mortgage clauses. Intervenor is the named mortgagee in each of the policies.

Concerning the effect of the standard mortgage clause, Couch, supra § 42:694 provides:

Under the standard or union mortgage clause, an independent or separate contract or undertaking exists between the mortgagee and the insurer, which contract is measured by the terms of the mortgage clause itself. There are accordingly in substance two contracts of insurance, the one with the mortgagee, and the other with the mortgagor.
The mortgagee does not have the status of a beneficiary, and the effect is the same as though the mortgagee had procured a separate policy naming himself as the insured.
The consideration for the insurer’s undertaking with respect to the mortgagee under the standard clause is the consideration for which the policy was itself issued to the mortgagor, and a standard mortgage clause creates a separate contract between the insurer and the mortgagee, and is enforceable by the mortgagee, even though it is merely engrafted onto the policy delivered to the mortgagor. [Footnotes omitted.]

The jurisprudence of this state is in accord with the view that a standard mortgage clause creates a separate contract of insurance between the insurer and the mortgagee. In Capital Building & Loan Ass’n v. Northern Ins. Co., 166 La. 179, 116 So. 843 (1928), we permitted a mortgagee who sued for a fire loss under a standard mortgage clause to recover penalties and attorney’s fees as provided by statute. Three years later, in Hardy v. Commercial Standard Ins. Co., 172 La. 500, 134 So. 407 (1931), we again faced the issue of whether a mortgagee under a mortgage clause may collect statutory penalties and attorney’s fees. We stated:

The extent of its [mortgagee’s] interest was the amount of its debt with interest and attorneys’ fees. Beyond that, it had no claim on the policy or its proceeds. The fact that it held the policy under such conditions did not make it an assured.

In the instant case, the court of appeal concluded that Hardy rejected the holding in Capital by denying the mortgagee’s claim for statutory penalties. We do not agree. Hardy did not involve interpretation of rights under a standard mortgage clause; the mortgage clause was of the open or simple variety. The difference between the two types of clauses was restated only one year after Hardy in Officer v. American Eagle Fire Ins. Co., 175 La. 581, 143 So. 500 (1932). While Officer involved a simple mortgage clause, the court stated in dicta (quoting Collinsville Savings Society v. Boston Ins. Co., 77 Conn. 676, 60 A. 647 (1905)) that, where the insurance policy contains a standard or union mortgage clause, as in the instant case, the effect is

to bring the insurer and the mortgagee into relations of privity, to convert the mortgagee into a party to the contract of insurance, to give to the mortgagee separate and distinct protection to his interest, to create in him an interest under the policy distinct from that of the property owner and to in fact make him the assured. [Emphasis added.]

We further noted in Officer that

the authorities are “unanimous in holding that a union mortgage clause in a policy of insurance operates as a separate and independent insurance of the mortgagee’s interest.” [Quoting Annot., 25 L.R.A. (N.S.) 740 (1910).]

Where separate and independent insurance of the mortgagee’s interest exists, there must be both an insurer and insured. Therefore, we consider intervenor to have been constituted an insured by the inclusion of the standard mortgage clauses in the insurance policies. Accordingly, we hold in-tervenor to be an insured within the meaning of La.R.S. 22:658 and as such entitled to penalties and attorney’s fees from defendants based on the share of insurance proceeds that should have been paid to it within sixty days after receipt by defendants of satisfactory proofs of loss and demands therefor.

Although the trial court did award intervenor attorney’s fees, there is no evidence in the record sufficient to sustain that award, which was solely based upon a stipulation between plaintiff and intervenor as to the attorney’s fees due on the mortgage between them. The stipulation is irrelevant to a determination of reasonable attorney’s fees under La.R.S. 22:658 which provides for attorney’s fees for prosecution and collection of insurance proceeds. Additionally, the trial court made no finding as to the share of the insurance proceeds that should have been paid to intervenor within sixty days after receipt of satisfactory proofs of loss and demands therefor. Accordingly, we must remand the case to the trial court for these determinations.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed insofar as it denied intervenor penalties and attorney’s fees and the case is remanded to the district court for a determination of these amounts; otherwise, the judgment of the court of appeal is affirmed.

BLANCHE, J., dissents and will hand down reasons.

       Chief Judge Paul B. Landry, retired, participated in this decision as an Associate Justice Ad Hoc.

      . The secured debt had been reduced since the institution of this action by the application of deposits made by two of the defendants and by proceeds of an unrelated sheriff’s sale of property belonging to plaintiff.

      . 373 So.2d 763 (La.App. 3d Cir. 1979).

      . 376 So.2d 960 (La.1979).

      . 376 So.2d 958 (La.1979).

      . The lower courts have concluded that the insurer arbitrarily, capriciously and without probable cause failed to pay within sixty days after receipt of satisfactory proofs of loss and demands therefor. Defendants did not apply for writs to this court. Therefore, those issues are final and cannot be reviewed by this court. Polizzi v. Lotz, 240 La. 734, 125 So.2d 146 (1960); Labat v. Labat, 232 La. 627, 95 So.2d 129 (1957); Bertucci v. Bertucci, 224 La. 364, 69 So.2d 502 (1953). Accordingly, we need only consider whether intervenor is an “insured.”

      . Accord, Peerless Ins. Co. v. Bailey Mortgage Co., 345 F.2d 14 (5th Cir. 1965); Citizens State Bank v. American Fire & Cas. Co., 198 F.2d 57 (5th Cir. 1952); Federal Ins. Co. v. Tamiami Trial Tours, Inc., 117 F.2d 794 (5th Cir. 1941); Home Ins. Co. v. Currie, 54 F.2d 203 (5th Cir. 1931); National Cas. Co. v. General Motors Accept. Corp., 161 So.2d 848 (Fla.App.1964); Hennessey v. Helgason, 168 Miss. 834, 151 So. 724 (1934); Haskin v. Greene, 205 Or. 140, 286 P.2d 128 (1955).

      . We realize that the effect of this decision will be to make defendants pay double penalties on the share of the proceeds that were owed to intervenor. In the ordinary case, penalties are prorated between the insureds as their respective interests appear. In the instant case, however, defendants were cast in judgment for penalties owed to plaintiff and did not apply to this court for writs. Therefore, we cannot reduce the award of penalties made to plaintiff.


author: DENNIS, Justice.

text:
    STATE of Louisiana in the Interest of Erin A. HUNTER.
    No. 65512.
    Supreme Court of Louisiana.
    March 3, 1980.
    For Dissenting Opinion Oct. 28,1980.
    See 389 So.2d 390.

      Mark S. McTernan, New Orleans, New Orleans Legal Assistance Program for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph DePaoli, Louise S. Korns, Asst. Dist. Attys., for plaintiff-respondent.
   DENNIS, Justice.

The issue presented by this case is whether a juvenile transfer statute may constitutionally authorize a juvenile court judge to transfer to adult court any fifteen year old whom there is probable cause to believe has committed a major violent felony without statutorily prescribing definite standards to govern the judge’s determination. We conclude that the absence of any standards sufficient for these purposes renders the transfer act under review in this case unconstitutional. A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves judges free to decide, without legally fixed criteria, when an individual must suffer the imposition of burdens or forfeiture of rights. A statute fails to fulfill the mandate of the state constitution if it permits a juvenile to be excepted from the general rule of non-criminal treatment without requiring that prescribed standards be applied to each case on its individual merits.

Relator, Erin A. Hunter, a fifteen year old juvenile, in a petition filed in juvenile court was alleged to be a delinquent child because he had committed armed robbery. The state moved to transfer the child for prosecution to the adult criminal court. Relator made timely objections to the validity of the statute authorizing such transfers on several grounds including an objection that the statute is unconstitutionally vague in violation of the Fourteenth Amendment’s Due Process Clause and the Louisiana Constitution because it authorizes juvenile judges to transfer juveniles to adult criminal courts, without prescribing definite standards to govern the judge’s determination or to require that he apply the standards to each individual case on its own merits. The juvenile court judge overruled the juvenile’s objections. We granted cer-tiorari to consider the constitutional issues raised.

The juvenile transfer statute, as amended in 1978, provides that a juvenile charged with delinquency based on criminal conduct, who was fifteen years of age at the time of the alleged offense, may be transferred to adult court by the juvenile judge, after notice and a hearing as provided by law, if the judge finds that there is probable cause to believe the child committed murder (first or second degree), manslaughter, rape, armed robbery, aggravated burglary, or aggravated kidnapping. The statute no longer contains any standards that the juvenile judge must apply to individual cases to determine which fifteen year olds accused of the designated crimes should be transferred or which ones should remain in the juvenile court system. The former transfer law, which required the judge to find “reasonable grounds to believe that the child is not amenable to treatment or rehabilitation through facilities available to the juvenile court,” was amended in 1978 to delete this criterion.

1.

The juvenile transfer statute fails to meet the requirements of due process because of vagueness caused by its failure to set forth standards to enable juveniles to protect themselves against arbitrary and discriminatory forfeiture of the special rights and immunities of juvenile court jurisdiction. Since proceedings to waive juvenile jurisdiction must measure up to the essentials of due process and fair treatment, the relator cannot be transferred to adult court pursuant to the present statute, which is void for vagueness.

Because it is implicit in the juvenile court scheme that non-criminal treatment is to be the rule, see State v. Everfield, 342 So.2d 648 (La.1977), and that adult criminal treatment is the exception which must be governed by the particular factors of individual cases, the waiver of jurisdiction is a critically important action determining vitally important statutory rights of the juvenile which may be taken only after a hearing that measures up to the essentials of due process and fair treatment. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); see also In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); United States ex rel. Turner v. Rundle, 438 F.2d 839 (3d Cir. 1971); State v. Everfield, supra.

A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leave judges and jurors free to decide, without any legally fixed standards, whether to impose burdens or forfeiture of rights. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). Accordingly, a statute is “void for vagueness” either where there has been a delegation of legislative authority with standards which are not sufficient to bar arbitrary or discriminatory action or where the statute is so unclear in what it permits or forbids that a person cannot know what the law expects of him. See Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); In re Juvenile, 364 Mass. 531, 306 N.E.2d 822 (1974).

The juvenile transfer act, since its amendment in 1978 deleting the criterion for determining waiver of juvenile jurisdiction, is void for vagueness because it leaves juvenile court judges free to cause forfeiture of important rights without any legally fixed standards and provides juvenile ac-cuseds no protection against arbitrary or discriminatory action. The juvenile court’s original and exclusive jurisdiction confers on the child special rights and immunities. He is shielded from publicity. He may be detained, but with rare exceptions he may not be jailed with adults. He may be confined, but only until he is twenty-one years of age. The court is admonished by statute to give preference to retaining the child in custody of his parents unless his welfare and the safety of the public cannot be adequately safeguarded without removal. The child is protected against consequences of adult conviction such as the loss of civil rights, the use of adjudication against him in subsequent proceedings, and the stigma of a permanent criminal record. See Code of Juvenile Procedure arts. 2, 69, 89 and 125. Cf. State v. Everfield, supra; In re Dino, 359 So.2d 586 (La.1978), Note, A Cautious Step Forward, 39 La.L.Rev. 278 (1978). A waiver of juvenile jurisdiction results in the child’s loss of these benefits. Considering that in relator’s case a waiver also determines whether, potentially, he may be confined as a juvenile for approximately five years or incarcerated at hard labor without benefit of parole for ninety-nine years as an adult offender, the relator will unquestionably be penalized or suffer a forfeiture by a transfer to adult criminal court. Accordingly, we conclude that a juvenile faced with the prospect of transfer to adult court for criminal prosecution is entitled to protection against vague or insufficient waiver standards as one of the “essentials of due process and fair treatment,” see Kent v. United States, supra, and that the juvenile transfer statute as presently written fails to measure up to the requirements of the Due Process Clause.

The state contends that the Code of Juvenile Procedure articles stating general purposes and general disposition policy, if read in pari materia with the transfer statute, provide sufficient legal standards for governing the determination of jurisdictional waiver. Essentially, these articles provide that non-criminal treatment of a juvenile is to be favored and call for the least restrictive disposition which the court finds will be conducive to his welfare and the best interests of the state. Code of Juvenile Procedure articles 2, 86. Several courts have concluded that similar standards were sufficiently definite to bar arbitrary and discriminatory action. Clemons v. State, 162 Ind.App. 50, 317 N.E.2d 859 (1974); State in the Interest of Salas, 520 P.2d 874 (Utah 1974); Donald L. v. Superior Court, 7 Cal.3d 592, 102 Cal.Rptr. 850, 498 P.2d 1098 (1972); State v. Halverson, 192 N.W.2d 765 (Iowa 1971); State v. Williams, 473 S.W.2d 382 (Mo.1971); Lewis v. State, 86 Nev. 889, 478 P.2d 168 (1970). We do not reach or decide whether such criteria meet the requirements of due process by enabling juveniles to be protected from arbitrariness and discrimination. The juvenile transfer statute itself contains no such statement of purpose or policy. Instead, the act specifically provides that no evidence may be introduced at a transfer hearing unless it pertains to the criteria stated in the transfer statute. La. R.S. 13:1571.4. Since the juvenile’s non-amenability to rehabilitation was deleted from the criteria in 1978, it is clear that a juvenile judge is prohibited from considering evidence pertaining to whether a juvenile could benefit from juvenile court treatment and programs. Accordingly, we are foreclosed from finding implicit in the statute an intention that the general purposes of the Code of Juvenile Procedure or other policy statements may be applied as standards governing waiver of juvenile jurisdiction. If evidence cannot be taken and considered relative to such standards in individual cases, such standards would be meaningless and provide no protection against arbitrary or discriminatory transfers.

2.

The legislature, in amending and reenacting the juvenile transfer statute, exceeded the bounds of its limited state constitutional authority to establish a procedure by which a juvenile court “may waive such special juvenile procedures in order that adult procedures would apply in individual cases.” La.Const. of 1974, art. 5, § 19. The words, structure and convention history of the constitutional provision granting this authority reflect that the legislature’s power to create a waiver device is limited to its authority to establish procedures for the judicial application of relevant standards to individual cases in determining which juveniles are unsuited to the juvenile court system. The constitution does not empower the legislature to institute a statutory vehicle for transferring juveniles to the adult court system by category or without reference to standards relevant to the purposes of the juvenile court system.

The wording of Article 5, § 19 of the 1974 Louisiana Constitution only authorizes a process for the transfer of juveniles to adult court in “individual cases.” It is evident that the constitution does not permit the legislature to authorize a transfer of juveniles by category, such as, for example, according to the type of crime with which they have been accused.

The structure of Article 5, § 19 also indicates that the legislature is authorized to create a transfer procedure which permits waiver of juvenile jurisdiction as to individual children for reasons pertinent to the objectives of the juvenile court system, and not a procedure which allows transfer by classification or without regard to relevant standards. Under the constitutional section, two classes of persons alleged to have committed crimes prior to their seventeenth birthdays are established, (1) those fifteen years old or older who are alleged to have committed a capital offense or attempted aggravated rape, and (2) all other accused of a crime committed before their seventeenth birthday. Members of the first group are excepted from non-criminal treatment in the constitution itself by category. Members of the second group may be removed from the juvenile system by the judicial decision, according to a transfer procedure established by two-thirds vote of each legislative house, to apply to individual cases. Had it been the intention to authorize transfer by act of the legislature, without regard to factors peculiar to individual cases, there would have been no need to provide for judicial transfer to establish a transfer procedure, or to restrict its application to individual cases.

The convention debates confirm our interpretation of Article 5, § 19 as reflecting a concern for the individualized treatment of juveniles, and a design to safeguard them against arbitrary and discriminatory action. Delegate Derbes, an author of the amendment which became the final version of the section, stated:

“The flexibility . . . that this particular act provides is quite clear. The legislature may establish a procedure by which the juvenile court would decide on a case by case basis, whether a person should be tried under adult procedures or juvenile procedures. If the person is a recidivist, if the person has committed a particularly heinous crime, or even for particular categories of crimes, the legislature may authorize waiver, but the waiver must be by the juvenile court, based on the totality of circumstances.” [emphasis supplied] Louisiana Constitutional Convention of 1973 Verbatim Transcript, Vol. IX, 118th day, January 15, 1974, at 3375.

Accordingly, while the legislature may enact or modify the procedures and standards for transfer of juveniles to adult court, it may not adopt a procedure without standards or one which invites a court to transfer juveniles without regard to the individual merits of each case.

3.

Since the constitutional deficiency of the present juvenile transfer procedure consists of its failure to prescribe definite standards to govern the judge’s determination in individual cases, the statute may not be preserved by severing an invalid provision or item. Accordingly, Act. No. 460 of 1978, which amended and reenacted La.R.S. 13:1571.1, is declared unconstitutional.

An unconstitutional statute which purports to repeal a prior statute by specific provision is ineffective to do so where, under standard rules governing separability a hiatus in the law would result from the impossibility of substituting the invalid affirmative provisions for the legislation that was repealed. See Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886); Stewart v. Waller, 404 F.Supp. 206 (N.D.Miss.1975); State v. Steely, 600 P.2d 367 (Okl.Cr.App.1979); State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978); State v. Dixon, 530 S.W.2d 73 (Tenn.1975); Vennekolt v. Lutey, 96 Mont. 72, 28 P.2d 452 (1939); State v. Cameron, 342 Mo. 830, 117 S.W.2d 1078 (1938); Sands, Sutherland, Statutory Construction, §§ 2.07 and 23.24 (1972). Thus, Act No. 460 of 1978, which purported to repeal all former versions of La.R.S. 13:1571.1 by amending and reenacting the statute in a manner violative of due process and state constitutional requirements, is ineffective to repeal the former juvenile transfer statute and leave a hiatus in the law. Accordingly, the juvenile transfer proceedings in this case shall be governed by the provisions of La.R.S. 13:1571.1 as it existed prior to the passage of Act No. 460 of 1978.

Conclusion

The juvenile court judge’s decision overruling relator’s objections to the validity of Act No. 460 of 1978 is reversed, and the case is remanded for further proceedings under the juvenile transfer statute in existence prior to the ineffective repealing act.

REVERSED AND REMANDED.

SUMMERS, C. J., dissents.

BLANCHE, J., dissents and will hand down reasons.

      . Other objections were that the statute violates the Equal Protection Clause of the Fourteenth Amendment and the Louisiana Constitution and the separation of powers article of the latter. We do not reach or decide these questions.

      . As the Supreme Court remarked in declaring void for vagueness a Pennsylvania statute which authorized a jury, without fixing any legal standards, to decide whether to impose criminal court costs in an acquitted defendant, a state statute which deprives one of liberty or property “whether labeled ‘penal’ or not must meet the challenge that it is unconstitutionally vague.” Giaccio v. Pennsylvania, 382 U.S. at 402, 86 S.Ct. at 520.

      . In the absence of a requirement that the juvenile court judge apply any definitive standards in making the decision to transfer, we cannot suggest considerations relevant to application of the standards as we did prior to their deletion from the statute. See State v. Everfield, supra, at n. 9.


author: DIXON, Chief Justice.

text:
    Harrell LINDSEY v. H. A. LOTT, INC., Contractors and Engineers.
    No. 64999.
    Supreme Court of Louisiana.
    April 7, 1980.
    Sydney B. Nelson, Nelson, Hammons & Johnson, Shreveport, for plaintiff-applicant.
    Caldwell Roberts, Mayer, Smith & Roberts, Shreveport, for defendants-respondents.
   DIXON, Chief Justice.

On September 20, 1973, while employed by the defendant as a carpenter in the construction of the First National Bank Building in Shreveport, the plaintiff, fifty years old and illiterate, suffered an accidental injury to his right arm when the bit of the thirty-five pound drill he was using hit a metal rod, causing the drill to twist in his hand until the drill was disconnected from its power source. Subsequently the plaintiff suffered severe pain in his right arm and hand. He was diagnosed to suffer from both thoracic outlet syndrome and cervical disc disease.

The plaintiff filed this suit on September 19, 1974, alleging that his pain was the result of the accident he had while employed by the defendant and that he was therefore entitled to workmen’s compensation benefits. The case was not tried until after December 17, 1977, when the plaintiff obtained new counsel who took the necessary steps to have the matter resolved. The trial court found that the plaintiff had failed to prove by a preponderance of the evidence that the accident was the cause of either the thoracic outlet syndrome or the cervical disc disease, and denied benefits. The Court of Appeal affirmed. This court granted writs to review the action of the lower courts.

The issue presented is whether the trial court erred in finding that the plaintiff was not entitled to workmen’s compensation benefits because of its conclusion that the accident was not the cause of the plaintiff’s pain and suffering. We conclude that it did.

As in any other civil suit the plaintiff in a workmen’s compensation action has the burden of establishing his disability and the causal relation between it and the accident by a preponderance of the evidence. This court has held, however, that a claimant’s disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, the symptoms of the disabling condition appearing after the accident and manifesting themselves continuously afterwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977); Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974); Johnson v. Travelers Insurance Co., 284 So6.2d 888 (La.1973).

In this case it is not disputed that the plaintiff had an accident while on the job, which he reported to his superiors. The next day he was referred by his employer to Dr. E. E. Rushing, who indicated that the injury was not serious and recommended hot packs and aspirin. The plaintiff’s employment was terminated shortly thereafter. The plaintiff testified without contradiction that a month or two after the accident he called the job site to inquire about further medical care and was told by the secretary there that the defendant did not care to furnish any medical treatment. On July 15, 1974 the plaintiff visited Dr. Charles B. Itzig, who diagnosed the plaintiff’s condition as thoracic outlet syndrome, which involves the compression of nerve tissue running into the arm, causing pain in the arm and hand. Surgery, including the removal of the first rib, and physical therapy followed. When treatment for that condition did not prove entirely successful in relieving the plaintiff’s pain, Dr. W. W. Fox III was consulted. He found plaintiff suffered from a disease of the cervical vertebrae, a condition which also involves the compression on nerve tissue causing pain in the arm and hand. Dr. Fox treated the condition by fusing three discs in the plaintiff’s cervical spine.

Moreover, it was the uncontradicted testimony of the plaintiff and his witnesses that he was in constant disabling pain from the time of the accident until he went to see Dr. Itzig. There was no evidence introduced that suggests that the plaintiff was suffering from such pain prior to the accident. Nor was there any evidence that the plaintiff had undergone any trauma between the accident and the time he sought treatment from Dr. Itzig that could have caused the symptoms.

Dr. Itzig was of the opinion that the thoracic outlet syndrome had been caused by the plaintiff’s work accident. Dr. Fox was of the opinion that, absent other significant trauma, plaintiff’s accident caused the injury.

Dr. Fox first saw plaintiff in December, 1974 and operated on him January 21, 1975. He described nineteen visits, at each of which plaintiff complained of pain. Both doctors found objective evidence of nerve root pressure. The right arm of plaintiff diminished in size at first, but returned to normal over the years. Dr. Fox could not account for plaintiff’s complaint of pain and disability, and last saw him on April 24, 1978, a month before the trial.

As noted above, if a plaintiff in good health continually suffers from a disabling condition after an accident, and there is a reasonable possibility that the accident caused the condition, the condition is presumed to have been caused by the accident. In this case the evidence is uncontradicted that the plaintiff had no problems with his hand and arm before the accident, but that afterwards he was in continuous pain. The medical testimony was clearly to the effect that the accident was at least a reasonably possible cause of the condition for which the plaintiff was diagnosed. It was therefore error for the trial court to fail to apply the well established presumption that such conditions are caused by the incidents which they follow. We conclude that the plaintiff has met his burden of proving by a preponderance of the evidence that his disabling condition was caused by the accident he suffered while in the employ of the defendant.

For the reasons assigned, the decisions of the courts below are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion to determine the amounts due plaintiff, at defendant’s cost.

BLANCHE, J., dissents, being of the opinion that the court of appeal and trial court judgments were correct.

SUMMERS, C. J. (Retired) serving as J. ad hoc, dissents and will assign reasons.

       Honorable Jesse N. Stone, Jr. served as Justice Ad Hoc in the vacancy created by the resignation of Tate, J.


author: WATSON, Justice. MARCUS, Justice DENNIS, Justice,

text:
    Ethel B. WHITAKER, Individually and as Administrator of the Estate of her Minor Child Jimmy Dell Whitaker v. CHURCH’S FRIED CHICKEN, INC., et al. Ethel B. WHITAKER, Individually and As Administrator of the Estate of her Minor Child Jimmy Dell Whitaker v. Charles BATISTE and the Fireman’s Fund Insurance Company.
    No. 65401.
    Supreme Court of Louisiana.
    April 7, 1980.
    Concurring Opinion Oct. 3, 1980.

      Breazeale, Sachse & Wilson, Henry D. Salassi, Jr. and Jay G. McMains, Lane & Clesi, Frank A. Fertitta, Watson, Blanche, Wilson & Posner, David Robinson, Baton Rouge, for defendants-respondents.
    Smith & Osborne, J. Arthur Smith, III, Baton Rouge, for plaintiff-applicant.
   WATSON, Justice.

These consolidated lawsuits involve claims for workmen’s compensation benefits and tort damages. As to the tort claim asserted against Charles Batiste and Fireman’s Fund Insurance Company, the trial court concluded that Whitaker was barred from recovery by his contributory negligence. The judgment of the trial court was affirmed by the Court of Appeal. See 373 So.2d 1371. The trial court was not clearly in error and was correctly affirmed. We likewise affirm the judgment insofar as it dismisses the claim for damages.

The workmen’s compensation suit was brought by Mrs. Ethel B. Whitaker, individually and as administrator of the estate of her minor child, Jimmy Dell Whitaker, against his employer, Church’s Fried Chicken, Inc., and its insurer, Fireman’s Fund Insurance Company, seeking benefits under the Compensation Act. Plaintiff, Jimmy Dell Whitaker, was injured on April 27, 1976, at the age of sixteen, while employed by Church’s; he was substituted as plaintiff upon reaching majority. The compensation suit presents more difficult issues: (1) Does Whitaker suffer substantial pain resulting from his injuries in attempting to work, and (2) if so, is he totally and permanently disabled within the contemplation of the Workmen’s Compensation Act.

In the workmen’s compensation suit, the Court of Appeal reversed the trial court’s award of $25.00 per week for 75 weeks as benefits for permanent disfigurement on the ground that the scarring did not involve the face or head as required by LSA-R.S. 23:1221(4)(p). The trial court judgment was amended to award plaintiff Whitaker future medical payments as needed against Church’s Fried Chicken, Inc., and its compensation insurer, Fireman’s Fund Insurance Company.

A writ was granted by this court on Whitaker’s application to review the question of whether Whitaker is entitled to compensation benefits for total and permanent disability, LSA-R.S. 23:1221(2).

The trial and appellate courts concluded that Whitaker is not disabled from performing janitorial work, the same kind of work he was performing when he was injured. Both courts were impressed by the fact that Whitaker is working as a janitor, and they therefore failed to seriously address the question of whether Whitaker is disabled because he can only work in substantial pain and discomfort.

Whitaker suffered severe burns when he and a co-worker attempted to pour a barrel of hot grease into a larger barrel. When they lifted the barrel, their hands were burned, and they dropped it, spilling hot grease on plaintiff’s legs. The more severe injury is to the left leg.

The trier of fact relied to a large extent on the testimony of the company doctor, Dr. Perry L. Chesney, who initially treated Whitaker but discharged him and advised him that he could return to work on an unlimited basis as of August 25, 1976. The testimony of Dr. Chesney must be to some extent discounted because both of the two specialists in plastic and reconstructive surgery who later examined plaintiff agreed that he had needed further medical attention, which he did not receive, and which would have prevented development of his thick hypertrophic or keloid scars. Both of these specialists, Dr. Wendell Howard Eisner, who testified for defendant, and Dr. Delio D. Delgado, who testified for plaintiff, were of the opinion that, at the time of trial, on May 16, 1978, Whitaker needed additional medical treatment. Although Dr. Eisner would have recommended a conservative approach for six months, consisting of moisturizing agents and elastic wraps, Dr. Delgado felt that immediate surgery was advisable. Also, Dr. Chesney last examined plaintiff almost two years before the time of trial, and the other two doctors were not only specialists in the field, but evaluated plaintiff’s condition at a much later time.

The Court of Appeal concluded: “We do not find that any temporary itching caused by the permanent scars remaining after being burned by the hot grease affects in any manner his ability to perform his janitorial work.” The basis for finding the itching to be “temporary” is not in the record. Both of the specialists who examined plaintiff agreed that he had itching; that he would continue to have it; and that it would continue to bother him. The distinction in their testimony is that Dr. Delgado felt the itching was disabling whereas Dr. Eisner did not. Neither referred to it at any point as “temporary”. Dr. Eisner agreed with Dr. Delgado that Whitaker’s work is impaired by the itching and the psychological effect of the burns. Dr. Eisner said:

“I think that [the itching] would bother him.” and
“. . . he thinks about it a lot and that bothers him. ... I can’t say that if I had it I wouldn’t be thinking about it too.” Eisner Deposition, at page 33.

Dr. Delgado gave detailed testimony about the burn scars, which he regarded as unstable, subject to irritation, infection, and ulceration, followed by additional scarring in a vicious cycle. His testimony is not only more persuasive than that resulting from the more superficial examination of Dr. Eisner, but it was corroborated by the testimony of plaintiff and two lay witnesses. All testified without contradiction that Whitaker works in substantial and severe pain. Two other lay witnesses did not testify because their testimony would have been merely cumulative. Charles Michael Harris, a co-worker, had observed Whitaker scratching and grabbing his leg with severe pain. According to Harris, Whitaker has to pause in his work from time to time. Ethel Whitaker, with whom plaintiff has lived all of his life, testified that he has pain and severe itching in the leg, which causes him to dig and scratch at his scars. Whitaker says he hurts every day at work; his left leg gets weak, sweats and is tender. He has spasms of pain which last from ten to fifteen minutes. The pain increases after a day of work, causing the scars to sting and itch. The pain, tenderness, itching, and weakness interfere with his work. In hot weather the itching is worse and in cold weather the scar hardens, dries and feels as though it is going to crack.

Dr. Delgado felt that Whitaker could only work in a controlled environment in an indoor sedentary type of occupation. The testimony of George Cranford, an expert in job placement, was that Whitaker is unfitted for such employment because of his limited education. Whitaker had four years of grammar school before being placed in special education at Scotlandville Junior High School. He worked as a janitor at Scotlandville, and received further janitorial training at the Choctaw Vocational Center. Most indoor jobs require clerical skills, reading comprehension, and record keeping, all of which are beyond Whitaker’s meager abilities. According to Cranford, Whitaker can follow only simple instructions, and his job potential is limited to the public sector, since government entities are more likely to tolerate people with physical handicaps and disabilities. Whitaker was in fact working at the Baton Rouge Zoo at the time of trial.

The uncontradicted testimony of plaintiff and the lay witnesses is exactly that of Dr. Delgado, who testified that the constant itching which Whitaker experiences is characteristic of keloid scars; that Whitaker has an intolerance of temperature and climate changes; and, that his symptoms will be aggravated by any manual labor. Whitaker’s complaints of intermittent or episodic pain and near constant tenderness were, in Dr. Delgado’s opinion, completely consistent with his physical findings. Dr. Delgado testified that Whitaker will always be uncomfortable, even at rest, and that time will aggravate his scars. Since the unrebutted testimony of the lay witnesses completely supports Dr. Delgado’s testimony, the trial court erred in accepting Dr. Eisner’s opinion that Whitaker is not disabled. See West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Dr. Eisner’s medical idea of disability is not necessarily the legal one, and part of his testimony, quoted supra, confirms Dr. Delgado’s opinion.

The evidence that Whitaker works in constant pain greatly preponderates. A finding of substantial pain requires that plaintiff be held disabled. Phillips v. Dresser Engineering Co., 351 So.2d 304 (La.App. 3 Cir. 1977), writ denied 353 So.2d 1048 (La.1978); Rachal v. Highlands Insurance Co., 355 So.2d 1355 (La.App. 3 Cir. 1978), writ denied La., 358 So.2d 645; Wright v. Liberty Mutual Insurance Co., 357 So.2d 1213 (La.App. 3 Cir. 1978) writ denied La., 360 So.2d 1180; Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App. 3 Cir. 1978) writ denied La., 362 So.2d 1119; Bonnette v. Travelers Insurance Co., 367 So.2d 1261 (La.App. 3 Cir. 1979); Simmons v. State Department of Transportation, 368 So.2d 770 (La.App. 2 Cir. 1979); Jones v. Arnold, 371 So.2d 1258 (La.App. 3 Cir. 1979); Guidry v. Ford, Bacon & Davis Construction Corp., 376 So.2d 352 (La.App. 3 Cir. 1979). See the article by Professor H. Alston Johnson, III at 39 La.Law Review 883, which points out that the “working in pain jurisprudence”, 39 La.L.Rev. 886, continues to be viable under the definition of total disability in the 1975 amendments to the compensation act. It is noteworthy that even though Whitaker is still doing janitorial work, he has held a succession of jobs and has not remained long with any one employer. Whitaker is a marginal employee, at best, illustrated by the fact that his upper elementary and secondary education was in the field of janitorial training. The trial and appellate courts were clearly wrong in finding that Whitaker is not totally and permanently disabled, within the contemplation of the Workmen’s Compensation Act.

As a practical matter, Whitaker is unable to engage in any gainful occupation for wages. At present, fortified by his youth, he ignores that disability and works in pain.

DECREE

For the foregoing reasons, the judgment of the Court of Appeal is affirmed insofar as it awarded plaintiff Whitaker medical benefits. The judgment of the Court of Appeal is reversed insofar as it denied Whitaker benefits for total and permanent disability. There was no error in denying the claim for penalties and attorney’s fees.

Therefore:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiff, Jimmy Dell Whitaker, and against defendants, Church’s Fried Chicken, Inc., and Fireman’s Fund Insurance Company, for weekly compensation benefits commencing April 27, 1976, at the rate of $25.00 per week (This was the applicable minimum rate in effect on the date of the accident. LSA-R.S. 23:1202.) during the period of Whitaker’s disability, subject to credit for any weekly benefits previously paid, with legal interest on any unpaid benefits from due date until payment, and for medical benefits according to law.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

MARCUS, J., concurs and assigns reasons.

DENNIS, J., concurs with reasons.

MARCUS, Justice

(concurring).

I consider that an employee is totally and permanently disabled when substantial pain is encountered by him in every occupation for which he is qualified. In the instant case, Whitaker is unable to engage in physical labor without encountering substantial pain and because of his limited education, he is unqualified to engage in non-physical occupations. Therefore, Whitaker is unable “to engage in any gainful occupation for wages.” Accordingly, I respectfully concur.

DENNIS, Justice,

concurring.

I respectfully concur. In view of the 1975 amendment to La.R.S. 23:1211, I believe that substantial pain cases should be incorporated into the broader analysis of disability using the odd-lot doctrine. See Malone & Johnson, Workers’ Compensation § 277 in 13 Louisiana Civil Law Treatise 627 (2d ed. 1980).

      . LSA-R.S. 23:1221(4)(p):
      “In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks.”

      . LSA-R.S. 23:1221(2):
      “For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability."