author:
DENNIS, Justice.
     WATSON, J., GUIDRY, Justice ad hoc,

text:
    STATE of Louisiana v. Amon G. Hill.
    No. 80-KA-1464.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Nancy Gilliland, Asst. Dist. Atty., for plaintiff-appellee.
    Travis R. Holley, Bastrop, for defendant-appellant.
   DENNIS, Justice.

Defendant Amon G. Hill was charged by bill of information with driving while intoxicated, third offense, La,. R.S. 14:98(D). He filed a motion to quash the bill based upon the lack of proper Boykinization at his two previous DWI guilty pleas. The motion was denied by the trial court and defendant entered a plea of guilty, reserving his right to appeal. See State v. Crosby, 338 So.2d 584 (La. 1976). Defendant was sentenced to three years imprisonment without hard labor. His sentence was suspended and he was placed on supervised probation for a period of five years with the special condition that he serve one year in jail.

Whenever a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives (a) his privilege against compulsory self-incrimination, (b) his right to trial and jury trial where it is applicable and (c) his right to confront his accusers, and to make sure that the accused has a full understanding of what the plea connotes and of its consequence. State v. John L. Jones, 404 So.2d 1192 (La.1981).

In the present case, the defendant was not advised of his privilege against self-incrimination, or of his right to confront his accusers at the time he entered his guilty plea in connection with one of the prior DWI convictions used to convert his subsequent misdemeanor into a felony. Accordingly, we are required to set aside the defendant’s conviction of driving while intoxicated, third offense, La. R.S. 14:98(D), the defendant’s underlying guilty plea, and the defendant’s sentence herein.

The case is remanded to the trial court for further proceedings not inconsistent with this opinion.

CONVICTION AND SENTENCE VACATED AND CASE REMANDED.

WATSON, J.,

concurs although he personally disagrees with State v. Jones, 404 So.2d 1192 (La. 1981).

GUIDRY, J. Ad Hoc, concurs and assigns reasons.

SWIFT, J. Ad Hoc, dissents.

GUIDRY, Justice ad hoc,

concurring.

I concur in the result reached in this case for the reasons assigned by Justice Lemmon in State v. John L. Jones, 404 So.2d 1192 (La. 1981).

       Honorables E. L. Guidry, Jr., G. William Swift, Jr. of the Court of Appeal, Third Circuit, and Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore joined by Associate Justices Calogero, Dennis, Watson and Lem-mon.


source: Caselaw Access Project

author: WATKINS, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. Joseph WILSON, Jr. and Henry A. Moses.
    No. 80-KA-2879.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Manoul-ides, Dist. Atty., Patrick Leitz, Kerry Hogan, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    William Noland, Lawrence J. Boasso, Robert Garrity, Indigent Defender Board, New Orleans, for defendant-appellant.
   WATKINS, Justice Ad Hoc.

This is an appeal from a conviction of Joseph Wilson, Jr., and Henry A. Moses of first degree murder in the shooting death of Henry Ball, III. Wilson and Moses were sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence upon the jury’s recommendation. The jury was all white. Wilson and Moses are blacks, and the victim, Ball, was white.

Three principal assignments of error are urged by defendants’ counsel on appeal. Because we find one assignment to be correct, we set aside the conviction and sentence on the basis of that ground, without it being necessary for us to consider the other assignments of error raised.

The incident, which had obvious racial overtones, took place on Sunday, September 17, 1978, at the Oakwood Shopping Center, Gretna, Louisiana. The victim, Ball, and approximately eighteen other white males had gathered in the Oakwood Shopping Center parking lot. Most of these individuals belonged to a group known as the King of Kegs. The group was drinking beer and generally conversing among themselves. The defendants, Wilson and Moses, were also in the parking lot when a confrontation took place between them and the group of white males, in the course of which the defendants pulled out their guns and fired several shots. One of the bullets struck Ball, fatally wounding him. Immediately thereafter, some of the whites in the group severely beat one defendant, Moses, and ran over the other defendant, Wilson, with a van, for the ostensible purposes of self-defense, or arrest, or both.

Defendants contend that remarks made to the jury in the assistant district attorney’s closing argument and rebuttal had the obvious effect of arousing racial prejudice among members of the jury, which was all white, and were totally irrelevant to the crime of murder which was allegedly committed. We find the assistant district attorney’s statements out of place, irrelevant to the proceedings, and of a clearly inflammatory racial nature.

The closing argument of the assistant district attorney is filled with direct and indirect appeals to the racial prejudices of the all white jury. We quote the first remark, and the objections of counsel, motion for mistrial, and the manner in which the assistant district attorney continued:

(MR. LIETZ, ASSISTANT DISTRICT ATTORNEY)
“Why is it a black Sunday? Because these two animals decided to shoot white honkies.
MR. PARENT:
Objection, Your Honor.
MR. TOOLEY:
May it please the Court, this is gross. I ask for a mistrial.
THE COURT:
I deny your motion.
The jury will disregard that statement.
MR. PARENT:
Note our objection, Your Honor.
MR. LIETZ:
They were going to shoot white honkies. They were going to shoot them. There is no question in their mind what they had to do.
You saw the pictures. You saw the keys in the car. You saw where the car was parked, way away from everything. That was the getaway car. They were going to go shoot white honkey. What did they mean? They meant business.”

The assistant district attorney then went on to say:

“Ladies and gentlemen, both of these men were in this together. They left Oakwood Shopping Center, armed themselves and came back to shoot whitey, to kill whitey, and that’s exactly what they did.
* * * * # *
These gentlemen had the opportunity to leave at any time, at any time. Nobody forced them into that shopping center with guns to kill whitey.”

Counsel for defendants did not object to these latter remarks at that time or move for a mistrial.

After closing arguments of defense counsel, the assistant district attorney, in rebuttal, made further racial remarks, which we quote, together with counsel’s objections, and motion for a mistrial.

“Ladies and Gentlemen, yes, they said I am fostering racial prejudice. Ladies and Gentlemen, they started yesterday on voir dire about prejudice. They took the stand and said niggers. I didn’t say niggers. I didn’t start this off. Ladies and Gentlemen I don’t care if they are black, white, green. They are murderers. These witnesses they said, Mouse said these two fellows said Mouse said, ‘Let’s get the Niggers.’ How come none of the other boys heard that. Mr. Tooley says Moses is innocent. He shot in the air. Ladies and gentlemen, do you think these two black males or any kind of males, these two animals over here—

MR. TOOLEY:
Objection, Your Honor.
MR. PARENT:
Objection, Your Honor.
MR. TOOLEY:
I ask for a mistrial.
THE COURT:
It’s not necessary to use these kinds of terms.
The jury will disregard it.”

Under Louisiana law, a mistrial is mandatory when a prosecutor refers “directly or indirectly” to race or color, where “the remark or comment is not material and not relevant and might create prejudice against the defendant in the mind of the jury.” LSA-C.Cr.P. art. 770(1); State v. Kaufman, 278 So.2d 86, 96 (La.1973).

In Kaufman, supra, this Court stated:

“The purpose of this mandatory prohibition of our 1966 code is to avoid the use of racial prejudice to obtain convictions. This is in accord with our jurisprudence since our earliest days as an American jurisdiction. It is, of course, founded upon a stringent requirement that trials be conducted in accordance with law and that convictions be founded on evidence of guilt and not upon prejudice. Without this mandatory rule of law, the convictions of innocent defendants may be secured, not because of their guilt, but because of their race.” (278 So.2d at 98)

This article of the Code of Criminal Procedure has been applied in numerous decisions of this Court. See, e. g., State v. Jones, 283 So.2d 476 (La.1973); State v. Snedecor, 294 So.2d 207 (La.1974). This article is not a development in our law but rather is a codification of a long standing rule traditionally recognized by us. See State v. Brown, 148 La. 357, 86 So. 912 (1921); State v. Moore, 212 La. 943, 33 So.2d 691 (1947). See also discussion and cases cited in State v. Kaufman (on rehearing), supra.

It is true that defense counsel did not object and move for a mistrial on each occasion when the assistant district attorney made remarks appealing to racial prejudice in his closing remarks. However, it is apparent from a reading of Louisiana jurisprudence (see cases cited above) that race is such a sensitive matter that a single appeal to racial prejudice furnishes grounds for a mistrial, and that a mere admonition to the jury to disregard the remark is insufficient. See especially State v. Moore, supra. Thus, it was unnecessary for defense counsel to move for a mistrial on each occasion when a racial remark was made. Such repeated objection to improper closing remarks is not expected of defense counsel, particularly as the effect of such repeated objection in the presence of the jury might be to call the jury’s attention to remarks that defense counsel would wish to be overlooked. State v. Lee, 346 So.2d 682 (La.1977). Also, the effect of defense counsel’s repeated objections, as noted in Lee, might be to further alienate the jurors against the defendant. Particularly would this be the case where the jury is all white and blacks are charged as the result of a shooting of whites. In such a case, objection would further arouse the latent racial prejudices of the jury, and heighten the chances that the jury would enter a verdict of guilty. Furthermore, it will be noticed from the portions of the record quoted above that defense counsel did again move for a mistrial when the assistant district attorney made further racial remarks in his rebuttal.

It might be argued that since the alleged crime arose as a result of a racial incident references to race were relevant to a determination of the case, and hence the remarks did not fall within the grounds for a mistrial set forth in LSA-C.Cr.P. art. 770. As we stated in State v. Kaufman, supra, the purpose of this provision of law is to avoid the use of racial prejudice to obtain convictions. When the alleged criminal conduct arises out of an incident among persons filled with racial animosity our system of criminal justice requires that those charged with the responsibility for the conduct of criminal trials strictly avoid any actions which might influence the jury to decide the guilt or innocence of the accused upon prejudice rather than on the law and the evidence. We set forth our views at length in State v. Jones, supra, wherein we stated that racial remarks are not permissible if they appeal to racial prejudice and are not relevant either to prove the elements of the crime or to explain a relevant fact. Here, the repeated references to “whitey” and “white honkies” in connection with the defendants’ supposed characterization of whites, and “animals” as a description of the defendants were obviously intended to appeal to racial prejudice, as they had no relevance to the elements of the crime of murder with which defendants were charged, and did not tend to enlighten the jury as to a relevant fact.

Quite the contrary. The jury is a time-honored and respected institution, indispensable to our system of criminal justice, and its members are expected to arrive at a verdict in a calm and detached fashion, without having latent racial prejudices, which are sometimes strong, aroused by brutal incitements to convict and thereby obtain revenge inherent in racial remarks such as those made by the assistant district attorney in this case. We cannot lend the sanction of the laws of this state, which we deem sacred, to the achievement of such base purposes. Our Codal law and our jurisprudence, compel a reversal of defendants’ conviction.

Hence, we hold that a mistrial should have been granted in the murder trial of defendants, Joseph Wilson and Henry A. Moses. We set aside their convictions, vacate their sentences, and remand the case for a new trial.

REVERSED AND REMANDED.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . LSA-C.Cr.P. art. 770 provides in pertinent part:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      ******
      An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”


author:
LOTTINGER, Justice Ad Hoc.
     LEMMON, Justice, DENNIS, Justice,

text:
    STATE of Louisiana ex rel. Vemell RICHARDSON v. Frank C. BLACKBURN, Warden.
    No. 80-KH-2918.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      Nettie Ann Woolhandler, Michael Collins, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph Meyer, John Craft, Louise S. Korns, Asst. Dist. Attys., for plaintiff-respondent.
   LOTTINGER, Justice Ad Hoc.

This matter is before this court on a writ of habeas corpus.

In September of 1975 defendant Vernell Richardson was convicted of a first degree murder which occurred on August 5, 1973. Defendant was originally sentenced to death on October 21, 1975. In 1976 the death penalty provision of the 1973 First Degree Murder Statute was held unconstitutional. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). In January, 1977 defendant’s death sentence was vacated and he was resentenced to life imprisonment without parole or probation for 40 years. In December of 1977 defendant was resentenced again, this time to life imprisonment without parole or probation for 20 years. Following an appeal to this court in 1979, defendant’s conviction and sentence were affirmed by per curiam (No. 63,725). Defendant now appears before this court urging two arguments as grounds for reversal of his conviction and sentence.

FACTS

On August 5, 1973 Richardson shot and killed Fred Bailey in a bar in New Orleans. According to eyewitness testimony, the defendant shot Bailey once. Bailey fell to the floor and defendant stood over him and continued to shoot. Bailey died of five gunshot wounds. The victim owed defendant Richardson $80.00 and had failed to pay it back as promised. The defendant asserted that the death resulted from a drug transaction.

SUFFICIENCY OF EVIDENCE

By this assignment the defendant urges that there was insufficient evidence to support a first degree murder conviction under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1978). This court has adopted the Jackson standard of review of state convictions as to the sufficiency of evidence. State v. Harveston, 389 So.2d 63 (La. 1980).

The state based its charge of first degree murder on the theory that Richardson was attempting an armed robbery at the time he shot and killed Bailey. The elements of armed robbery are a theft (taking property of another with intent to deprive permanently), by use of force or intimidation, while armed with a dangerous weapon. There is little doubt that Richardson used force against Bailey, and that he was armed with a dangerous weapon. The only question is whether Richardson intended to take Bailey’s property away from him.

The evidence adduced at trial shows that Bailey owed Richardson $80.00. Bailey’s live-in girlfriend testified that Richardson had begged Bailey for the money and said he did not want to hurt him for it. Bailey promised he would pay back the money in two weeks. Some two weeks later Bailey was murdered. During the trial an oral statement made by Richardson while under police custody was introduced into evidence wherein Richardson said that Bailey came into the bar while Richardson was there and Richardson asked Bailey for the money owed him. Bailey refused, demanding a refund of money already paid Richardson because the drugs purchased were no good. The fatal altercation followed.

The defense argues that there was insufficient evidence of attempted armed robbery because Richardson did not attempt to take anything from Bailey after the shooting occurred. Without evidence of a money dispute between the parties, there could be little inference of an armed robbery unless the victim’s pockets were rifled. But because there is evidence that Richardson pulled a gun on Bailey because he was out to get back money owed him (even though Richardson claimed he pulled the gun because Bailey was “crowding” him), the failure of Richardson to bend over the body does not preclude a finding that Richardson intended to rob Bailey of the money owed him. It was just as reasonable for the jury to have concluded (as they apparently did) that Richardson wanted to get back the money, but that he abandoned the attempt after firing five shots, such abandonment being caused by hysteria or panic. This would be supported by testimony that Richardson was seen leaving the bar and driving away in an automobile while firing shots into the air.

We are convinced that by pulling the gun on Bailey, a rational trier of fact could have found that this constituted an attempt to get the money back. As such, we find the Jackson standard has been satisfied.

RESPONSIVE VERDICTS

By this assignment the defendant urges that the trial court erred in failing to list second degree murder as a responsive verdict to the crime charged. At the time of the crime in question, August 1977, second degree murder was responsive to first degree murder. The trial judge’s charge to the jury is not a part of the record. A typed list of the responsive verdicts, however, does appear in the record and reads, guilty as charged, guilty of manslaughter and not guilty. Thus second degree murder was apparently not given as a responsive verdict.

The basis of defendant’s argument is that if second degree murder had been listed as a responsive verdict, then he could have possibly been found guilty of such rather than first degree murder, and could have received the penalty commensurate with second degree murder. What defendant fails to recognize is that the sentence he is presently serving is that prescribed for second degree murder. Thus he fails to show any prejudice by failure to list second degree murder as a responsive verdict. We agree that the failure to list second degree murder as a responsive verdict was error, however, same is nonprejudicial.

Considering the foregoing, the application for the writ of habeas corpus is denied.

LEMMON, J., concurs and assigns reason.

DENNIS, J., dissents in part, concurs in part, and assigns reasons.

LEMMON, Justice,

concurring.

The record does not establish beyond a reasonable doubt that defendant attempted to take anything of value from the victim either before or after the shooting. Therefore, the evidence is insufficient to support a verdict of first degree murder under the 1973 statute.

However, the record clearly supports a finding of a specific intent to kill, and the jury, by returning a first degree murder verdict, necessarily found that defendant had a specific intent to kill. The jury therefore made the necessary findings for a second degree murder verdict. The case should be remanded for entry of a judgment of conviction of second degree murder and for resentencing. State v. Byrd, 385 So.2d 248 (La.1980). Nevertheless, since defendant has already been sentenced as though he had been convicted of second degree murder, the question is academic, and I merely concur in the result. See State v. Roberts, 340 So.2d 263 (La.1976); State v. Jenkins, 340 So.2d 157 (La.1976).

DENNIS, Justice,

dissenting in part and concurring in part.

I respectfully dissent in part and concur in part.

In my opinion the evidence does not constitutionally support a finding beyond a reasonable doubt that the offender was engaged in the perpetration or attempted perpetration of armed robbery at the time of the offense. Although the consequences of this court allowing to let stand an unconstitutional conviction of first degree murder may not be immediately foreseeable, they are certainly not academic. The defendant’s sentence should be affirmed, but the judgment of conviction should be amended to provide that the defendant is adjudged guilty of second degree murder.

       Judges Ellis, Lottinger, and Ponder of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Dennis, Watson, and Lemmon.


author: WATKINS, Associate Justice Ad Hoc. LEMMON, Justice,

text:
    STATE of Louisiana v. Edward BELL.
    Nos. 80-KA-2956, 81-KA-0292.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Shirley Wimberly, Steven Wimberly, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Joseph Tosh, Gretna, for defendant-appellant.
   WATKINS, Associate Justice Ad Hoc.

Defendant Edward Bell was charged with theft and receiving stolen property, a violation of LSA-R.S. 14:67 and 14:69, respectively. These alleged offenses arose from an alleged single incident, viz. taking merchandise from Godchaux’s Store, Lakeside Shopping Center, Jefferson Parish. Although a defendant may be charged with both offenses, theft and receiving stolen property, arising out of a single incident, he may be convicted of only one or the other. State v. Robertson, 386 So.2d 906 (La.1980); State v. Williams, 359 So.2d 115 (La.1978).

This case was tried by the judge. Although the language of the trial court in finding Bell guilty is ambiguous, we will assume that the trial court acted in accordance with the requirements of the two cited cases, Robertson and Williams, supra, and convicted Bell of but one offense, theft, a violation of LSA-R.S. 14:67. Sentencing was deferred pending multiple billing, as defendant was a dual or multiple offender. A bill of information was subsequently filed in a separate proceeding charging Bell with being a multiple offender, having had four (4) prior felony convictions. The theft conviction is before us as 81-KA-0292 and the multiple billing is before us as 80-KA-2956.

Defendant’s counsel appeared in open court in the multiple billing proceeding and acknowledged that defendant was a second offender. No mention was made of the bill charging four prior offenses. We are uncertain whether defense counsel’s acknowl-edgement of one prior offense was the result of error on the part of all concerned or the result of plea bargaining.

In any event, the trial court sentenced defendant as a multiple offender to two terms of two years imprisonment at hard labor, to run consecutively. The sentence was clearly improper. Defendant was convicted of having stolen merchandise worth $443.00. Under LSA-R.S. 14:67 the maximum sentence for theft in that amount would have been two years at hard labor had defendant been sentenced for theft. If defendant had indeed been convicted of four prior felonies, the minimum correct sentence for a multiple offender with four prior felony convictions was 20 years at hard labor. Only if defendant had had but one prior felony conviction would 4 years imprisonment have been a correct sentence. See LSA-R.S. 15:529.1. Even if 4 years imprisonment was the proper sentence, considering the acknowledgement of one prior conviction by defendant’s counsel, still that sentence should have been imposed as one single sentence of 4 years, not as two consecutive 2 year sentences. There should have been but one sentence, for double or multiple felonies. No separate sentence should have been imposed for theft, nor do we interpret the trial court’s sentencing to sentence separately for theft and dual or multiple felonies. In any event, a sentence of two consecutive terms of two years for a single offense, viz. being a dual or multiple offender, was clearly improper.

Defense counsel contends that photographs of the merchandise allegedly stolen were improperly introduced, when the best evidence was the merchandise itself. We cannot agree with this contention. Under LSA-R.S. 15:436.1 photographs of alleged objects of theft may be introduced if otherwise admissible, without regard to the availability of the property itself. See also State v. Dilworth, 358 So.2d 1254 (La.1978). The photographs not having been inadmissible for any other reason, they were properly admitted.

The store detective, Barnes, and a security officer, Newman, both testified as to the value of the merchandise stolen. Defendant contends that the testimony as to the value of the stolen goods was opinion testimony and inadmissible, as neither witness had qualified as an expert. However, the values of the merchandise were determined by looking at the price tags on the objects allegedly stolen. The witnesses were thus testifying as to facts, not giving opinion testimony.

Defendant’s sole assignments of error were that the photographs of the merchandise were improperly admitted in evidence, and that testimony as to the value of the merchandise was improperly admitted. Neither of these assignments of error has merit, as we have indicated. However, an error which is discoverable upon a mere inspection of the pleadings and proceedings may be considered by the court on appeal. LSA-C.Cr.P. art. 920(2). As we have noted, it is apparent that the entire sentencing process on the multiple billing is flawed. It is impossible to determine whether defendant was sentenced as having had four prior felony convictions, or one, and if the sentencing is indeed for four prior offenses, it is of incorrect duration. Nor should the sentencing have been for two consecutive terms, as the multiple felony statute contemplates a single sentence, not consecutive sentences.

For the reasons set forth, we affirm the conviction but vacate the sentence and remand the case for reimposition of sentence in accordance with the views expressed herein.

CONVICTION AFFIRMED; SENTENCE VACATED AND SET ASIDE AND CASE REMANDED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

Defendant, along with two other men, was charged in two counts with both theft and receiving stolen things. This proceeding bore Docket No. 79-1101. Defendant was found guilty on both counts and sentenced to two years on each count, the sentences to run concurrently.

Defendant was then billed as a multiple offender under Docket No. 80-1629, and he pleaded guilty to being a second offender. He was then sentenced to two years, to run consecutively with the sentence in No. 79-1101.

There were two sentencing errors. First, defendant could not be convicted of both theft and receiving stolen things based on the same conduct. Second, defendant should not have been separately sentenced on the charge of being a multiple offender, but should have been resentenced as a multiple offender on the underlying charge of theft (or receiving stolen things).

The preferable procedure would be to set aside both the conviction and the sentence and to remand with instructions to enter a judgment of guilty of either theft or receiving stolen things and to resentence as a multiple offender on the conviction thus entered. However, I cannot quarrel with the majority’s assumption that Bell was convicted of theft, because the evidence supports that covniction. On remand defendant should be sentenced for theft within the sentencing range for a second offender.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the First Circuit Court of Appeal participated in this decision as Asso-date Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . On the remand ordered by the majority the trial court should set aside the conviction of receiving stolen things.


author: DIXON, C. J., CALOGERO, J.,

text:
    Shirley Ballard AVANTS v. Charles M. AVANTS.
    No. 81-C-2412.
    Supreme Court of Louisiana.
    Oct. 16, 1981.
   Re Charles M. Avants, applying for writs of Certiorari, Parish of Livingston, Number 36,252.

Denied.

DIXON, C. J.,

is of the opinion that the writ should not be considered, because not timely filed.

CALOGERO, J.,

concurs in the denial. This interlocutory matter in ongoing civil litigation is timely submitted to this Court within the time given relator by the district court even though relator did not apply here within the 10 days following writ denial by the court of appeal allowed by Supreme Court Rule 10, § 5 (B).


author:
LEMMON, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Chester GREEN.
    No. 81-K-1087.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Michael W. Campbell, Asst. Dist. Attys., for plaintiff-relator.
    Douglas Wilson, New Orleans, for defendant-respondent.
   LEMMON, Justice.

We granted the state's application to review the trial court’s ruling which suppressed evidence of an armed robbery seized in a warrantless search. 400 So.2d 681 (La.). We now reverse. Facts:

The victim was held up at knifepoint while riding in the robber’s automobile, after accepting a ride home from work. His call to the police related the vehicle’s general description and license number. The police immediately determined that the license had been issued to defendant, Chester Green, of 3405 Urquhart Street in New Orleans. Officer McCaffery then proceeded to that location, where he observed on the street an unlocked vehicle fitting the general description. At McCaffery’s request the victim was transported to defendant’s residence, where he identified the parked vehi-ele as the one in which the robbery occurred.

In order to identify the interior of the car McCaffery shined a flashlight through the car’s closed windows, illuminating the inside of the automobile and revealing the unique design of the interior. The victim confirmed his previous identification. While looking at the interior, McCaffery and the victim also observed a knife on the floorboard of the driver’s side, and the victim identified the knife as the one used in the robbery. McCaffery then opened the door of the vehicle and retrieved the knife.

While McCaffery was still on the scene, defendant came out of the house and claimed the vehicle, identifying himself as Chester Green. McCaffery had the victim brought back to the scene, where the victim identified defendant as his assailant. The police arrested Green and searched his person. They found some money, but only seized $52.00, which was the amount reported as stolen by the victim.

Seizure of the Knife:

The state contends that the officer had probable cause to search the vehicle and that exigent circumstances justified immediate search and seizure without a warrant.

While a person’s privacy interest in an automobile (particularly when the vehicle is parked unlocked on the street) is less than his privacy interest in his home, probable cause to search a vehicle is not alone sufficient to dispense with the requirement of a warrant. A warrantless search of an automobile parked on a public roadway is justified only when the police have probable cause to search and the circumstances require immediate action. A search of the inherently mobile object without a warrant may be justified, particularly when the owner may have been alerted, because of the possibility of movement or destruction of evidence while a warrant is being obtained. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Furthermore, if probable cause and exigent circumstances exist which justify the search, then the officer may also seize evidence found within the car, as there is no appreciable difference in the degree of intrusion. Chambers v. Maroney, above.

In the present case the police officer had probable cause to search defendant’s car, which was solidly linked to the recent robbery by the license number and description provided by the victim and by the victim’s subsequent identification. Furthermore, the officer was faced with exigent circumstances requiring that he either seize and hold the vehicle before presenting the probable cause issue to a magistrate or carry out an immediate search without a warrant. The unlocked vehicle was parked during the early morning hours on a public road, accessible to anyone who might have reason to move it or remove evidence from it. Since the knife, visible to a passerby with a flashlight, might have been retrieved by the robbery suspect or some other person, there was immediate danger of loss of evidence and possible danger to the public.

Under the overall circumstances the officer’s decision to conduct an immediate limited search and seizure was reasonable and justified.

Seizure of the Currency:

While McCaffery was waiting for a tow truck to carry off the vehicle positively identified by the victim as the one driven by his assailant, defendant claimed the vehicle, identifying himself as Chester Green. Defendant’s name, address and ownership of the vehicle had already been established by a computer check, and defendant was positively identified as the robber when the victim returned to the scene. McCaffery then arrested and searched defendant, seizing currency from his wallet as evidence of the robbery.

Defendant was lawfully arrested, based on clearly established probable cause. As an incident to a lawful arrest a police officer may conduct a warrantless search of the arrestee’s person. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); State v. Williams, 398 So.2d 1112 (La.1981); State v. Gibson, 391 So.2d 421 (La.1980). We conclude that the currency was lawfully seized.

Decree

The judgment suppressing the evidence is reversed, and the motion to suppress is denied. The matter is remanded for further proceedings.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

Although the majority opinion does not make mention of it, this court in a unanimous opinion has previously considered the law and applied it to a similar situation almost identical to the present case. In State v. Lewis, 378 So.2d 396 (La.1979) we observed:

“[A] clear rule for determining when the police may invoke the automobile exception has yet to be fashioned by a majority of the high court. A plurality in Coolidge [v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564] stated that the lack of a warrant invalidated a search of the car after it was seized from the defendant’s driveway under circumstances in which there was no possibility that the car would be moved or any evidence destroyed. Therefore, ‘no possible stretch of the legal imagination [could make the case into one] where “it [was] not practical to secure a warrant.” ’ Coolidge, supra, 404 U.S. at 462, 91 S.Ct. at 2036. A different plurality in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), however, approved a warrantless seizure of an automobile for the purpose of inspecting its exterior and tires, and obtaining paint scrapings, emphasizing that the auto, unlike the Coolidge car, ‘was seized from a public place where access was not meaningfully restricted. 417 U.S. at 593, 94 S.Ct. at 2470, [41 L.Ed.2d 325.]’ ” Id. 398.

In State v. Lewis, supra, we concluded that although the automobile exception is uncrystallized, the facts of that case brought the search there within its ambit. Our remarks on that occasion are equally applicable here:

“The automobile was parked in a public place, a city street outside defendant’s Berry’s apartment. It was therefore accessible to anyone who might have a reason to move it or remove evidence from it, including defendant Berry’s common-law wife whom the police had no probable cause to arrest and allowed to remain at the apartment. Thus, the officers were faced with exigent circumstances requiring that they elect one of the two courses ‘reasonable under the Fourth Amendment.’ Chambers, supra, 399 U.S. at 52, 90 S.Ct. 1975, [at 1981], either immobilize the car until a warrant is obtained or carry out an immediate search without a warrant. Under all of the circumstances, the election of the latter reasonable course by the officers does not require that we invalidate their search.” Id. at 399.

       Judges E. J. Guidry, Jr. and G. William Swift, Jr. of the Third Circuit Court of Appeal and Robert J. Klees of the Fourth Circuit Court of Appeal participated in this decision as justices ad hoc along with Associate Justices Calogero, Dennis, Watson and Lemmon.


author: PER CURIAM:

text:
    Howard Leo SIBLEY, Jr., et al. v. Randy MENARD, et al.
    No. 13808.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 1981.
    On Denial of Rehearing March 23, 1981.
    William J. Staser, Baton Rouge and Haydn S. Berey, Livingston, for plaintiff.
    Gerald L. Walter, Jr., Baton Rouge, for Southwestern Ins.
    John Bivins, Lafayette, for appellants.
    James B. Doyle, Baton Rouge, for Lafayette Concrete.
    John W. King and Wm. J. Doran, Baton Rouge, for Dept, of Transp. and Development.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   ON REHEARING

PER CURIAM:

We granted a rehearing on briefs previously filed, to reconsider that portion of our original decree, 398 So.2d 590, which amended the judgment appealed by reducing each award by one-half.

We were in error. The settlement agreement was with defendant Southwestern Insurance Company in its capacity as the uninsured motorist carrier of the deceased tort victim, Howard Leo Sibley, Sr. The insurer is thus not a joint tortfeasor and the compromise settlement between plaintiffs and Southwestern, with reservation of right against the others cast in judgment, does not prejudice the right of the co-tortfeasor, State of Louisiana, to seek contribution against its co-tortfeasors Randy L. Menard and Wills Trucking Company, Inc.

Therefore, the judgment of the trial judge is affirmed.

AFFIRMED.


author: STOKER, Judge. PER CURIAM.

text:
    Deborah Kaye HARDY et al., Plaintiffs-Appellants-Appellees, v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS et al., Defendants-Appellees-Appellants.
    No. 8276.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 13, 1981.
    Rehearings Denied Oct. 14, 1981.

      Doran & Kivett by William T. Kivett, Baton Rouge, for defendant-appellant, State of Louisiana.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendant-appellee, City of Natchi-toches.
    Troy E. Bain, Shreveport, for defendant-appellee, Shirley Campbell.
    Kelly & Salim, Robert L. Salim, Natchi-toches, for plaintiff-appellee, Deborah K. Hardy.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, Bolen & Erwin, James A. Bo-len, Alexandria, Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, Brittain, & Williams, Jack O. Brittain, Natchitoches, for defendants-appellees.

      Before CUTRER, STOKER and BIENVENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, partici- . pated as Judge Ad Hoc in this decision.

   STOKER, Judge.

The several matters discussed in this opinion grow out of an intersectional collision between two automobiles. On June 18, 1979, vehicles driven by James D. Campbell and Teresa McFerrin Parish collided at the intersection of Louisiana Highway 6 and Louisiana Highway 3110 within the city limits of Natchitoches, Louisiana. Four cases including certain interventions were consolidated for trial and are involved in this appeal. Separate opinions are being rendered this date in the three other actions.

The accident occurred because of the malfunctioning (or misalignment) of one or perhaps two signal lights at the intersection. The defendants in the case brought by Deborah Kaye Hardy include the two drivers, the State of Louisiana through the Department of Transportation and Development (State) and the City of Natchitoches (City). Other defendants include Hartford Accident and Indemnity Company (Hartford), insurer of the City of Natchitoches; Natchitoches Motor Company, Ltd., employer of James D. Campbell; Liberty Mutual Insurance Company (Liberty Mutual), insurer of Natchitoches Motor Company, Ltd., and Southern Farm Bureau Casualty Insurance Company (Southern Farm), insurer of Teresa M. Parish.

Various incidental demands were made between the parties.

As the only defendant found liable and cast in judgment the State through the Department of Transportation and Development appeals from that holding and also from the finding of the trial court which absolved the City of Natchitoches from liability and which failed to find that James D. Campbell was guilty of negligence which was either the sole cause of the accident or a contributory cause of the accident. The State also complains of the refusal by the trial court to allow Dr. Ted Norton to testify as an expert. The State has not complained of the quantum of the awards made to the various claimants in the several cases. The City of Natchitoches and Hartford complain that the awards in the death and personal injury cases are excessive.

Deborah Kaye Hardy, plaintiff, appealed individually and for her minor children, but only as to the failure of the trial court to hold the City of Natchitoches and Hartford liable in solido with the State. All other appellants have taken this same position. We reverse as to the trial court’s finding and judgment concerning the City of Natchitoches and its insurer, Hartford.

ISSUES

The principal issues on appeal are whether the State, the City or the two drivers, or any of the parties, were guilty of negligence which was a legal cause of the accident. Other issues include the applicability to the State of strict liability under LSA-C.C. art. 2317 and the effect of a contract between the State and City for maintenance of the highways, including the semaphore signal lights at the intersection.

At the intersection Louisiana Highway 6 runs generally east and west and Louisiana Highway 3110 (actually the Natchitoches bypass for Louisiana Highway 1) runs generally north and south. Although the intersection is within the city limits of Natchi-toches, it is on the outskirts of the city. Both highways are major highways. A string of overhead hanging signal lights controls traffic at the intersection. Louisiana Highway 6 is split by a median with two lanes on either side. Highway 3110 is quite wide. It is conceded that at least one of the signal lights was turned from its normal direction resulting in a section of the light which normally faced east being turned to face the southbound traffic traveling on Louisiana Highway 3110.

Involved in the collision was a 1979 Ford automobile owned by Natchitoches Motor Company, Ltd., and driven by James D. Campbell. The vehicle was proceeding south on highway 3110 approaching the intersection. Aubrey M. Hardy was a guest passenger in this vehicle. At the same time, a 1978 Ford station wagon driven by Teresa McFerrin Parish was proceeding east on Highway 6, approaching the intersection. The two vehicles entered the intersection and collided. As a result of the accident, Aubrey M. Hardy was killed and James D. Campbell and Teresa M. Parish sustained injuries.

Liberty Mutual provided the general liability and workmen’s compensation coverage to Natchitoches Motor Company, Ltd., at the time of the accident. Hartford provided general liability coverage to the City of Natchitoches. Southern Farm provided the automobile liability and physical damage coverage to the Parish vehicle. American Road Insurance Company provided the physical damage coverage on the Natchi-toches Motor Company, Ltd., vehicle. The latter and American Road Insurance Company intervened to recover the loss sustained as a result of damages to the automobile driven by Campbell.

A number of suits, interventions and third party demands were filed by and against the several parties. The State and the City filed third party demands against one another, each contending responsibility lay with the other based on a maintenance agreement, as well as legal duty, with regard to the traffic lights in the City, including the lights at the bypass intersection. James D. Campbell and Teresa M. Parish were made defendants by various claimants based on alleged negligent operation of the vehicles driven by each.

Following trial on the merits the State was held solely responsible for the accident and resulting damages sustained by the various claimants because of its failure to timely correct the traffic light condition. The City of Natchitoches, James D. Campbell and Teresa M. Parish were absolved of negligence.

Damages awarded included those to the widow and two children of Aubrey M. Hardy for wrongful death; personal injuries to Mrs. Parish; and automobile damages to the owners and collision insurers of the two vehicles. Since it was found that Hardy and Campbell were in the course and scope of their employment with Natchitoches Motor Company, Ltd., at the time, Liberty Mutual, its workmen’s compensation insurer was awarded certain compensation benefits paid to Campbell and the Hardy survivors.

The court left open the damages relating to the injuries of Mr. Campbell who, at the time of trial, was scheduled to undergo physical therapy treatment in an out-of-state hospital for several weeks.

The State sets forth several specifications of error in its brief which we will address in appropriate order. The quantum of the awards has not been complained of by any parties with the exception of the City of Natchitoches and its insurer.

CAUSE-IN-FACT OF THE ACCIDENT

Specification of error number one of the State reads:

“The court erred in concluding there was a preponderance of evidence establishing that a faulty traffic light was the cause-in-fact of the accident.”

Of the two parties traveling south Aubrey M. Hardy was killed and James. D. Campbell’s condition apparently will not permit him to testify. The eastbound party, Teresa Parish, could only state that she had a green light for her lane of eastbound traffic. Lisa McFerrin, sister of Teresa Parish, was following immediately behind Teresa Parish in a separate vehicle. Lisa McFerrin testified that the signal light for traffic in the eastbound lane was green. Given the circumstances the State urges that the plaintiffs have not shown that the signal light problem was the cause-in-fact of the accident. At least one light had been defective for two days prior to the accident. It had been reported numerous times, in some cases by City and State employees. At the time of the accident a State unit was on the way from Alexandria to repair the light. The circumstantial evidence is abundant to support a finding that at least one defective light was so turned as to give both drivers a green light.

As indicated the evidence is not clear that only one light was defective. Tony Mafouz, an employee of the City of Natchitoches, undertook to repair a defect in a signal light at the intersection at 5:00 PM on Sunday, June 17, 1979, which was the day before the accident. His testimony is to the effect that he performed corrective work but it is not at all clear that he worked on one light only, nor is it clear which light or lights he worked on.

Further explanation is appropriate. Louisiana Highway 6 running east and west is sepai’ated by a wide median in the vicinity of the intersection. Louisiana Highway 3110 is not separated by a median. The separated portions of Louisiana Highway 6 are one-way with the southernmost part carrying eastbound traffic (the direction the Parish vehicle was traveling) and the northernmost carrying westbound traffic. Some seven traffic signal lights control traffic at the intersection which in effect is a double intersection. See Exhibit Campbell 6-C. The double intersection results because of the wide separation made by the median which causes two distinct crossings of Louisiana Highway 6 by Louisiana Highway 3110. Three signal lights are located at the northernmost intersection and four at the southernmost intersection.

As disclosed by the pictures in evidence there are no four-way signals at any part of the intersection or intersections. Some are one-way signals and some are two-way signals. At the northernmost crossing (where westbound traffic crosses Louisiana Highway 3110) a vehicle traveling south on Louisiana Highway 3110, as the Campbell vehicle was traveling, is confronted with three signals. A one-way signal light on the left faces east and controls westbound traffic on Louisiana Highway 6. In the center a two-way signal (with red, amber and green lights) faces east and north to control west and southbound traffic. A third two-way signal faced by southbound traffic is located to the right. It faces north and has a fourth light below the customary red, amber and green lights. This fourth light controls traffic turning right (west).

Under the arrangement described above a southbound driver such as James D. Campbell would be faced with two two-way signals with lights facing in the driver’s direction. Mr. Mafouz found that at least one of the two two-way signals was twisted on its axis and he performed a temporary repair which caused it to face properly. Nevertheless, the testimony establishes that at least from the time Mr. Mafouz performed his work until after the accident when the State made repairs the two two-way signals at the two separate intersections were registering the same colors at the same time. The testimony developed the ' fact that there were numerous near accidents before the occurrence of the tragic accident with which we are involved in this case.

We find that it was more probable than not that at the time of the accident James D. Campbell was confronted with green lights only and further that Teresa Parish, who was traveling east was also confronted with green lights. Under these circumstances we consider that the signal light problem was the cause-in-fact of the accident. McDaniel v. Welsh, 234 So.2d 833 (La.App. 1st Cir. 1970), writ refused, 256 So.2d 616, 237 So.2d 397 (La.1970). Cf. Garrison v. State of Louisiana through the Department of Highways, 401 So.2d 528 (La.=App. 2nd Cir. 1981).

LIABILITY OF THE STATE (DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT)

The negligence of the State is manifestly clear. It had adequate notice of the problem at the intersection. A State employee, Wilbur Welsh, noticed the malfunctioning of the signal light as early as 6:30 AM on Saturday, June 16,1979. He reported the condition to the State’s maintenance barn which is about 500 yards from the intersection. It appears that it was necessary to send a repairman from Alexandria, some fifty-odd miles away. This was done on Monday morning, but the repairs did not occur until after the accident. If the local maintenance crew did not include a technician capable of making the necessary repairs, the State had the duty to put up appropriate warning devices and put a flagman on duty temporarily until the situation was corrected. The State also had a duty to notify local police authorities so that traffic could be directed manually until repairs could be made. Gaspard v. Stutes, 380 So.2d 201 (La.App. 3rd Cir. 1980) and Doise v. Richard, 311 So.2d 286 (La.App. 1st Cir. 1975).

Aside from the liability based on negligence the State is liable under LSA-C.C. art. 2317. Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980); Shipp v. City of Alexandria, 395 So.2d 727 (La.1981) and Garrison v. State of Louisiana, through the Department of Highways, supra. The intersection in question involved two State highways. Custody of the signal lights was in the State and no contract with the City of Natchitoches could relieve the State of control and custody as contemplated by LSA-C.C. art. 2317. In negligence cases a contract between the State and a municipality cannot relieve the State of its fundamental responsibility for maintenance work on State highways located within corporate limits of municipalities. Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir. 1977), writ denied, 356 So.2d 434 (La.1978).

LIABILITY OF THE CITY OF NATCHITOCHES

Other than making a finding that the City of Natchitoches as a defendant was not negligent, the trial court’s reasons for judgment do not discuss the role of the City of Natchitoches. We disagree with the trial court’s finding that there was no negligence on the part of the City and reverse that portion of the judgment.

Although the State had and retained basic responsibility for the signal lights an extremely dangerous situation existed for the traveling public within the city limits. Irrespective of whose responsibility it was to make repairs of the signal light or lights, the City of Natchitoches at least had a duty to see that the drivers of vehicles on the two highways were warned of the danger until it could be corrected. Gaspard v. Stutes, supra. The City seeks to excuse itself on the grounds that its police force was completely absorbed in other duties of an emergency nature. This excuse cannot exonerate the City from the responsibility for its negligent failure to make provision for warnings.

Both highways at the intersection are beyond the principal built up area of Natch-itoches and the situation is more in the nature of highways in open country side. The speed limit on both highways is 55 miles per hour. Under the circumstances the possibility and probability of serious accident through intersectional collision was so great that the dangerous condition should have had a very high priority for attention by the police department. Moreover, the City certainly must have had other personnel who could have been sent to control and warn traffic. Public works or street maintenance employees should certainly have been capable of acting as emergency traffic controllers and could have put up warning notices. In addition, the City might have sought assistance from the State Police or the Parish Sheriff’s office. The City contented itself with making calls to the State to repair the signals. The call to the Alexandria office of the State was apparently not made until Monday morning, with the result that the repair crew of the State did not arrive until after the accident.

The City should have provided some type of warning. Gaspard v. Stutes, supra. Cf. Travelers Insurance Company v. Ragan, 202 So.2d 302 (La.App. 1st Cir. 1967); Carlisle v. Parish of East Baton Rouge, 114 So.2d 62 (La.App. 1st Cir. 1959); LeJeune v. State Farm Mutual Automobile Insurance Company, 107 So.2d .509 (La.App. 1st Cir. 1958); and Hodges v. State, Department of Highways, 370 So.2d 1274 (La.App. 3rd Cir. 1979), writ denied, 374 So.2d 660, 661 (La. 1979).

Aside from the question of negligent failure to warn, the City undertook to repair the signal or signals and negligently did so. In McDaniel v. Welsh, supra, it was held that a political subdivision which assumed the task of correcting a malfunctioning signal was negligent in not doing so properly. Evidently Mr. Mafouz’s efforts on the day before the accident resulted in an inadequate inspection and failure to locate all the trouble or a failure to properly remedy the misalignment or both. Such failure was a cause-in-fact of the accident. McDaniel v. Welsh, supra.

For the reasons stated the City of Natchitoches is liable in solido with the State to plaintiffs.

LIABILITY OF THE DRIVERS

The trial court correctly found neither of the drivers to have been negligent in the operation of their vehicles. Teresa M. Parish and her sister Lisa McFerrin, who was following immediately behind her, testified that the signal was showing a green light for traffic on Louisiana Highway 6. This testimony is uncontradicted.

We have already dealt with the situation which faced James D. Campbell. While he is unable to testify we have concluded that under the evidence he was faced with one if not two green signal lights. In defense of this suit it is suggested that James D. Campbell should have been faced with one red light at least. It is urged that of two lights facing him, if a malfunctioning light showed green, the other would nevertheless have been red. We do not believe this was the case. However, in Gaspard v. Stutes, supra, one of the drivers, Stutes, was faced with a red light and a green light because one particular light was misaligned. This court affirmed the trial court’s finding that both drivers were free of negligence in entering the intersection. Assuming that the contentions of the defense that there was at least one red light facing Campbell are correct, we nevertheless find under such circumstances that Campbell was not negligent.

This holding answers any charge of contributory negligence leveled at Campbell or his guest passenger, Hardy.

THIRD PARTY DEMAND OF THE STATE AND CITY AGAINST ONE ANOTHER

The State and the City have each impleaded the other seeking indemnity from the other in the event of their being found liable to plaintiffs. The basis fór the indemnity claims is a contract for maintenance of streets and signal lights within the City of Natchitoches which are within the State system of highways. This maintenance contract was entered into pursuant to the authority contained in LSA—R.S. 48:193 and 261. The contract was in effect at the time of the accident. While the State may not contract away its basic responsibility, it may contract with a municipality such as the City to perform certain maintenance and repair functions on State highways within a municipal area. LSA—R.S. 48:193(A) and (D) and LSA-R.S. 48:261.

As one of the maintenance obligations assumed by the City, as contained in Article IV of the agreement, it agreed to “maintain and operate traffic signals.” The State retained responsibility for certain functions. Article IX is a mutual hold harmless agreement in which the City is referred to as the “Municipality” and the State as “Office”. The provision reads:

“ARTICLE IX. It is understood and agreed that the Municipality shall hold Office harmless for any and all claims for damages to person or property arising by reason of any negligence attributed to failure of proper maintenance of any of the facilities assumed by said Municipality and likewise Office shall hold said Municipality harmless of any and all such claims arising by reason of its undertakings herein.”

The position of the City is that under the contract it is not responsible for “major” repair or “significant” maintenance of traffic signal lights affected by the contract. The lights at the intersection of Louisiana Highway 6 and Louisiana Highway 3110 are included in the contract. As we read the contract the words “maintain and operate traffic signals” appear to be all embracing. Article VII of the contract provides:

“It is further understood that the signal lights listed in this agreement shall be acceptable to the Office for the purpose of execution of this agreement. However, under the authority granted the Office under La.R.S. 48:193 the Office shall exercise full control over the replacement of these signal lights when such replacement becomes necessary.”

Irrespective of how the contract might be interpreted standing alone, we think the obligation of the parties was materially altered by a general directive of the State published on January 1, 1977, over the signature of W. T. Taylor, Jr., Assistant Secretary of the Department of Transportation and Development. See Natchitoches Exhibit # 2 at Tr. 48. The directive applies generally to such agreements as the one in question between the State and the City. It bears the significant subject title: “Official Interpretation of Maintenance Agreements Between the Department and Municipalities Regarding Traffic Signals” and bears the designation PPM No. 19. We reproduce the directive in full as an appendix to accompany this opinion.

A copy of directive PPM No. 19 dated January 1, 1977, was forwarded to Mayor Joe Sampite on October 19, 1980, by the Department of Transportation and Development in response to a request by letter from Mayor Sampite asking for a clarification of the responsibilities of the City regarding traffic light maintenance under Article IV of the agreement concerning the meaning of the words “maintain and operate traffic signals.” In the letter the Department stated that since directive PPM No. 19 governed the responsibility of the City there was no need to rework the contract as had been suggested by Mayor Sam-pite.

Giving effect to the State's interpretation of the contract in effect on the date of the accident involved here as shown by the Department’s letter of October 12, 1980, there is no basis for a claim of indemnity against' the City by the State. We see no need for interpretation by us in view of the interpretation placed on the contract by the Department itself.

We see no basis for an indemnity claim by the City against the State. The statutory law of this State places the responsibility for signal light maintenance and repair on the State. Contracts with political subdivisions of the type involved here authorized by statute merely permit the State to contract for some of its duties to be performed by political subdivisions and for payment of compensation to the subdivisions which perform the work. Hence, the third party demands of the State and the City will be denied.

We should note that the contract just discussed has no bearing on the liability of the State and the City to the plaintiffs in the various cases before the court arising out of the accident in question. Both the State and City are guilty of acts of negligence which were causes-in-fact of the accident and the State is liable without fault under LSA-C.C. art. 2317. Hence, these defendants are solidarily liable to the plaintiff.

CITY’S DEFENSE OF INABILITY TO PAY

The City filed an amended petition asserting that it is destitute and unable to pay a judgment in favor of plaintiff Deborah Kaye Hardy and her children. Tr. 220. It is admitted that the City is insured by Hartford. Assuming that this defense is available to a political entity and was proven, the City cannot avail itself of the defense under the circumstances of this case. In Daniels v. Conn, 382 So.2d 945 (La. 1980) the Louisiana Supreme Court held:

“.. . where there are solvent and insolvent joint tortfeasors liable in solido, evidence of the insolvent defendant’s inability to pay may not be considered by the trial judge in determining damages to be awarded to the plaintiff, or in apportioning damages as between those joint tort-feasor defendants at the trial on the merits of plaintiff’s claim.”

The City has not shown the State to be insolvent and we presume it to be solvent.

FAILURE TO ALLOW THE STATE’S EXPERT WITNESS TO TESTIFY

The State lists as one of its specifications of error the refusal of the trial court to permit Dr. Ned Walton to testify as expert on behalf of the State or to permit a proffer of his testimony. The State contends it was prejudiced by this action of the trial court. Dr. Walton testified he held a Phd degree which he described as a combined degree in highway design, traffic engineering and human factors engineering. The State established that Dr. Walton had impressive qualifications and tendered him as an expert in the “field of traffic engineering, which includes traffic control devices.” Tr. 734. Opposing counsel traversed Dr. Walton and questioned him with regard to what his expertise in visibility consisted of. His expertise in that area was objected to and the trial court ruled that Dr. Walton was not qualified and competent to testify as an expert. Tr. 737.

It was never clear that Dr. Walton was being offered as an expert to testify concerning questions of mechanics of signal devices or highway engineering. As to expertise in visibility Dr. Walton testified as follows on cross examination:

“Q. What is an expert in visibility, Dr. Walton?
A. Let me contrast it for you with vision which is medical physiological phenomena. Vision is how we see. Visibility is the study of relationships between people characteristics, their vision characteristics, and the detection conspicuity, the ability to see objects, things, people, features. If we’re talking about visibility in the strictest sense on a transportation facility, we’re talking about visibility of roadway features, traffic control devices, pedestrians, signs, signals, markings, from a human factors point of view.
Q. Did you take courses in visibility?
A. Oh, yes. I’ve taught courses in visibility as well.
* * * # * *
Q. What are courses in human factors?
A. What are courses in human factors? Human factors engineering, I’ll contrast that to pure human factors, which is psychology. Pure human factors is psychology. Human factors engineering is the application not only of psychological phenomena but physiological capabilities as well. So, human factors, we’re talking about human capabilities, abilities and limitations within some system. And usually when you’re talking about human factors engineering, you’re talking about a man-machine system interfacing and put together, highways in particular, a driver-vehicle, a roadway, roadway environment.”

In attempting to relate the expertise in visibility described by Dr. Walton to the issues of this case, we are unable to conceive of how he might have assisted the court. We consider the question, not so much as to the qualifications of Dr. Walton in the field he described, but rather whether there were any factual issues which might have been more easily resolved had he been allowed to testify. The scene of the accident was familiar to the court and pictures introduced in evidence adequately depict the scene. We do not find any issues raised as to the design of the highway intersection or its signal control system. The evidence established the misalignment of at least one signal light. Hence, Dr, Walton’s testimony could not have been relevant to any of these matters. As to what a person might see, parties at the scene before and after the accident gave testimony as to what they saw. Under the circumstances we see no prejudice to the State in the court’s refusal to allow Dr. Walton to testify. We make no ruling as to the trial court’s refusal to allow a proffer of the testimony.

QUANTUM

In a supplemental brief the City and Hartford urge alternatively, in the event they be held liable to plaintiffs, that “the amounts awarded . . . Mrs. Hardy and the two children were grossly excessive and constitute abuse of discretion accorded the trial judge.” No suggestion is made as to what awards would be within the trial court’s discretion.

The trial court awarded general damages of $100,000.00 to Deborah Kaye Hardy and $40,000.00 to each of the minor Hardy children. The sum of $2,000.00 was awarded to Mrs. Hardy and her children in the survival action to cover Aubrey M. Hardy’s personal injuries and pain and suffering prior to his expiration. Special damages awarded consisted of $760,000.00 in loss of earnings, $2,133.26 in funeral expenses and $136.20 in medical expenses.

We do not find that the trial court abused its discretion in making these awards.

At the time of his death Aubrey M. Hardy was approximately 26V2 years old. He and Deborah Kaye Hardy had been married since August of 1972. They had two children. At the time of the accident, Brian was 2 months old and Christopher was 2V2 years old. Aubrey M. Hardy was employed by Natchitoches Motor Company, Ltd., as a salesman and was also self-employed as a locksmith. In addition, he dealt in independent vehicle sales for profit.

Testimony by close relatives and friends indicate that Aubrey M. and Deborah Kaye Hardy and their children enjoyed a very close family relationship and that Aubrey M. Hardy’s death was a significant personal loss to them. The unexpected death of her husband came as quite a shock to Deborah Kaye Hardy. It has been somewhat difficult for Christopher to adjust to his father’s death, a loss which he has difficulty in understanding. Aubrey M. and Deborah Kaye Hardy not only enjoyed a fine home life together with their children but also enjoyed social activities together.

The attending physician who saw Aubrey M. Hardy testified that when he saw him in the emergency room Aubrey M. Hardy told him that he could not breathe. Aubrey M. Hardy had a torn vessel in his chest and was bleeding rapidly. He soon lost consciousness. His injury was a crushing injury to the chest which resulted in massive internal bleeding. The award of $2,000.00 for pain and suffering experienced by Aubrey M. Hardy prior to his death does not appear to be excessive.

Aubrey M. Hardy died at approximately 9:30 AM on the day of the accident.

Dr. David Townsend, professor of economics and finance and Dean of the college of business at Northwestern State University testified as an expert concerning probable future earnings of Aubrey M. Hardy. He estimated that Aubrey M. Hardy had a work life expectancy of 38 years. Based upon earnings as an automobile salesman and locksmith, Dr. Townsend estimated a future loss of earnings in the amount of $750,000.00. Dr. Townsend estimated that Hardy would earn approximately $10,000.00 a year from each of the two endeavors. Based on the evidence in the record we cannot find that the trial court abused its discretion in making the awards discussed above. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979).

CONCLUSION

For the foregoing reasons as respects ap-pellee Deborah Kaye Hardy individually and on behalf of her minor children, the judgment of the trial court is affirmed in all respects except as to its holding relative to the City of Natchitoches and Hartford Accident and Indemnity Company. As to them the judgment of the trial court is reversed. They are now cast in judgment in solido with the State of Louisiana, Department of Transportation and Development and the trial court judgment is amended accordingly.

As intervenors American Road Insurance Company and Natchitoches Motor Company, Ltd., recovered the sums of $4,465.83 and $100.00 representing the total subrogat-ed and deductible damages to the automobile driven by James D. Campbell. Tr. 925. Judgment was granted against the State alone. The intervention made the City of Natchitoches and Hartford Accident and Indemnity Company, defendants, and the intervenors appealed from the dismissal of their intervention against these two defendants. As to the City of Natchitoches and Hartford Accident and Indemnity Company as defendants-appellees in this intervention, we reverse to cast them in solido with the State in conformity with the disposition made above in the principal case of Deborah Kaye Hardy.

REVERSED IN PART AND AMENDED: AFFIRMED AS AMENDED.

APPENDIX

Louisiana R.S. 48:193 permitted the Department of Transportation and Development, Office of Highways, to enter into maintenance agreements with municipalities for certain phases of maintenance on State maintained highways through the municipality. These maintenance agreements state, in part, that the municipality shall maintain and operate traffic signals.

The implementation of these agreements pertaining to traffic signals as it applies to all municipalities except those with full maintenance agreements, namely Baton Rouge, Shreveport and New Orleans, will be as follows:

1. The municipality shall pay the power bill for operation of the signal; and
2. The municipality shall replace inoperative light bulbs and burned-out fuses as their responsibility for routine maintenance.
3. In cities where efficient personnel are retained by the City to perform signal maintenance of a more complicated nature, the Office of Highways shall continue to welcome such additional maintenance as is done by these forces.
4. In cases where the municipality cannot, or refuses to pay power bill, relamp or replace burned-out fuses, the Office of Highways should terminate this portion of the contract, assume full maintenance of the signals and pay power charges.
5. In the event that a signal is knocked down and/or demolished, and Office of Highways forces are not immediately available to make repairs or reinstalla-tions, if the City desires to do so, they may reinstall the signal with their own forces.
Upon proper evaluation of such an installation, the Office of Highways shall (1) remove and return the existing equipment to the City and replace it with equipment, or (2) if the installation is satisfactory to the Office of Highways and agreeable with the City, the Office of Highways shall replace in kind from stock the equipment used by the City for the installation.
6.In replacing any equipment or in installing new signals in any municipality, consideration should be given to the municipality’s preference for a certain brand of equipment, provided other signals in the municipality are of that brand and provided this type is available from DOTD stocks.

This memorandum supersedes Louisiana Department of Highways Director’s Policy and Procedure Memorandum 64. All other directives, memoranda or instructions issued heretofore in conflict with this memorandum are hereby rescinded.

This policy will become effective on January 1, 1977.

/s/ W. T. Taylor

W. T. TAYLOR, JR.

ASSISTANT SECRETARY

ON APPLICATION FOR REHEARING

PER CURIAM.

In this and the companion cases consolidated with it, the State of Louisiana, Department of Transportation and Development, the City of Natchitoches and Hartford Accident & Indemnity Company have applied for a rehearing. The applications for rehearing are denied. Hartford has called our attention in the application on its behalf to the fact that its policy of insurance contains limits of liability for bodily injury, which includes death, of $200,000. In our judgment on original hearing we cast Hartford in solido with the City of Natchitoches and with the State. Hartford’s policy in evidence does in fact indicate a limitation for bodily injury including death of $200,000 for each occurrence. Hartford’s liability, of course, cannot exceed its limits. The policy also indicates a limitation of $50,000 for property damages for each occurrence and an aggregate of $100,000. In view of the policy limits we amend the judgment to provide that Hartford shall not be liable for more than its limits.

As pointed out in our opinion on original hearing, we do not have before us the claim of James D. Campbell because no judgment had been rendered in this case when the several appeals in this and the other cases were heard and acted upon. Therefore, our amendment as to Hartford relating to bodily injury coverage applies to the death claim of Deborah Kaye Hardy, et al. (Number 8276), the personal injury claim of Teresa McFerrin Parish (Number 8279), Parish v. Liberty Mutual Ins. Co., 404 So.2d 996 (La.App.), and the claim for reimbursement of workmen’s compensation filed by Liberty Mutual Insurance Company (Number 8277 Liberty Mutual Ins. Co. v. State, through Department of Transportation and Development, 404 So.2d 994 (La.App.) and as asserted through intervention in this, the Hardy suit). Any damages for property damages are payable out of the property damage coverage rather than the $200,000 in bodily injury coverage. These limits shall be apportioned between the claimants before this court as provided by law including the claim on behalf of James D. Campbell.

The City of Natchitoches has complained in its application for rehearing that our decision on original hearing did not follow (or distinguish) the decision of our brothers of the Second Circuit in Garrison v. State of Louisiana, Through the Department of Highways, cited supra, in our opinion in the original hearing in connection with certain issues. The facts of the Garrison case and the facts of the case before us are distinguishable relative to issues not connected with ownership of the signal lights or the obligation to maintain them. This is manifest from a reading of the two opinions. Nevertheless, as the point has been raised on rehearing, we will point out the distinction.

In the Garrison case the City of Monroe was exonerated and was found not to be negligent. We found the City of Natchi-toches had no responsibility for the condition of the defective lights. The Second Circuit arrived at a similar conclusion but on different grounds. However, we found the City of Natchitoches to have been negligent in two respects. It was negligent for failure to safeguard the intersection after notice of the dangerous situation caused by the malfunctioning light or lights. This same point was considered in the Garrison case in which the Court of Appeal for the Second Circuit noted that after notification to the City of Monroe an officer was immediately sent to the location but apparently did not arrive before the accident. Therefore, the Second Circuit held that the City of Monroe was not negligent in failing to safeguard the intersection. These facts are clearly distinguishable from the facts involving the inaction of the City of Natchi-toches which had notice over a considerable period of time. The .second respect in which we held the City of Natchitoches to have been negligent was in connection with the attempt of is employee to repair the light or lights on the day previous to the accident. There was no such undertaking in the Garrison case. We consider the facts of the two cases to be clearly distinguishable.

Both applicants for rehearing urge that this court erred in not making a ruling on the trial court’s refusal to allow the State to make a proffer of the expert testimony of Dr. Ned Walton. While we think the trial court was in error in refusing to allow the proffer, LSA-C.C.P. art. 1636, we indicated on original hearing that the expert opinion disallowed by the trial court would not alter the result of our finding. Under the circumstances there is no need to discuss the issue.

APPLICATIONS FOR REHEARING DENIED.

      . The other three actions are: Liberty Mutual Insurance Co. v. State of Louisiana, Through Department of Highways, et al, 404 So.2d 994 (La.App. 3rd Cir. 1981) our docket number 8277; Southern Farm Bureau Casualty Insurance Company v. Liberty Mutual Insurance Co., et al, 404 So.2d 995 (La.App. 3rd Cir. 1981) our docket number 8278; and Parish v. Liberty Mutual Insurance Co., et al, 404 So.2d 996 (La.App. 3rd Cir. 1981) our docket number 8279.
      The claim of James D. Campbell is not before us. His cause of action was asserted through intervention in this suit of Deborah Kaye Hardy. Tr. 51, 77, 105, 107 and 190. The intervention on his behalf, in which he is represented by Shirley Campbell, provisional curator, was left open. Tr. 869 and 919. Although an appeal was entered on behalf of James D. Campbell (Tr. 5A, Supplemental Record on Appeal dated June 3, 1981), insofar as we can determine from the record no judgment on behalf of James D. Campbell has been rendered.

      . The caption lists the Department of Highways in both the petition and in this appeal. The petition referred to the “State of Louisiana, Department of Transportation" and the State answered as “the State of Louisiana, Department of Transportation and Development.”

      . By stipulation at the beginning of the trial the claims of various plaintiffs based on the alleged negligence of James D. Campbell and Teresa M. Parish were dismissed. As a result the trial proceeded against the State, the City of Natchi-toches and its insurer as the sole defendants. Tr. 323-324.

      . The State repairman who arrived after the accident and repaired the signals raised one of the signals controlling southbound traffic. He found this signal was 14 feet three inches above the highway and raised it to 16 feet above the highway, its normal distance from the highway. Apparently the signal had been struck by a passing vehicle.

      . While we do not have the claim of James D. Campbell before us in this appeal (see footnote 1, supra), his alleged contributory negligence was made an issue in the claim of Deborah Kaye Hardy. See the defense asserted by the City of Natchitoches in its First Supplemental Answer adding paragraph 35 (Tr. 114) wherein the City urged that Aubrey M. Hardy was on a joint mission with Campbell, his host driver, and that all acts of negligence of Campbell were imputed to Hardy barring claims by him. A survival action was asserted on behalf of Mrs. Hardy and her children for the pain, suffering and injuries suffered by Aubrey M. Hardy prior to his death.

      . The Department’s letter on its letterhead stationery reads as follows:
      “October 16, 1980
      MAINTENANCE AGREEMENT CITY OF NATCHITOCHES
      Honorable Joe Sampite Mayor — City of Natchitoches P. O. Box 37 Natchitoches, LA 71457
      Dear Mayor Sampite:
      Reference is made to your letter of October 14, 1980 concerning clarification of the responsibilities of the City regarding traffic light maintenance under Article IV of the original agreement “maintain and operate traffic signals.”
      The responsibility for the City is detailed in the attached copy of PPM No. 19 from the Department’s Assistant Secretary’s Policy and Procedure Manual.
      I hope this will clarify any questions you have and resolve the need for reworking the current maintenance agreement. Should any additional information or action be required, please advise.
      Very truly yours, GORMAN S. POUNDERS CHIEF MAINT. & OPERS. ENGINEER s/ L. N. Hunsinger, Jr. L. N. HUNSINGER, JR. ROAD MAINT. ENGINEER”

      . With respect to the intervention of Liberty Mutual Insurance Company we dispose of that case in a separate opinion rendered in the companion suit of that insurer, our docket number 8277.


text:
    LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al., Defendants-Appellants.
    No. 8277.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 13, 1981.
    Rehearing Denied Oct. 14, 1981.
    Doran & Kivett by William T. Kivett, Baton Rouge, for defendant-appellant, State of Louisiana.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendant-appellee, City of Natchi-toches.
    Troy E. Bain, Shreveport, for defendant-appellee, Shirley Campbell.
    Kelly & Salim, Robert L. Salim, Natchi-toches, for plaintiff-appellee, Deborah K. Hardy.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, Bolen & Erwin, James A. Bo-len, Alexandria, Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, Brittain & Williams, Jack 0. Brittain, Natchitoches, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU, JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   STOKER, Judge.

For the reasons stated in the companion case of Hardy v. State of Louisiana, Department of Highways, 404 So.2d 981 (La.App. 3rd Cir. 1981), in which a separate opinion is being rendered this date, the judgment of the trial court in this case is affirmed in all respects except as to its holding relative to the City of Natchitoches and Hartford Accident and Indemnity Company. As to them the judgment of the trial court is reversed. The City of Natchitoches and Hartford Accident and Indemnity Company are now cast in judgment in solido with the State of Louisiana, Department of Transportation and Development, and the judgment is amended accordingly.

The relief sought in this action being the same relief sought through an intervention by Liberty Mutual Insurance Company in Hardy v. State of Louisiana, Department of Highways, supra, we make our disposition of the claim of Liberty Mutual Insurance Company in this separate case rather than in the companion case, it being understood and decreed that Liberty Mutual Insurance Company is entitled to only one recovery.

The cost of the appeal in this case is assessed one-half to the State and one-half to the City of Natchitoches and Hartford Accident and Indemnity Company.

REVERSED IN PART AND AMENDED; AFFIRMED AS AMENDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In this and the companion cases with which it is consolidated the State of Louisiana, Department of Transportation and Development, the City of Natchitoches and Hartford Accident & Indemnity Company have applied for a rehearing.

We amend our judgment rendered on original hearing in conformity with the per curiam attached to the opinion in Hardy, et al. v. State of Louisiana, Through Department of Highways, et al., 404 So.2d 981 (La.App. 3rd Cir. 1981), our docket number 8276 so as to give effect to the limits of liability set forth in the policy of Hartford Accident & Indemnity Company. Any recovery by plaintiff herein against Hartford shall be subject to apportionment as provided by law.

APPLICATIONS FOR REHEARING DENIED.

      . The trial court’s reasons for judgment address all claims in a single opinion bearing the captions of all the consolidated cases. The original judgment in favor of Liberty Mutual Insurance Company appears at transcript page 922 under the caption of the Hardy case and is dated September 26, 1980. After a remand from this court an amended judgment in this case was rendered and signed on May 22, 1981, dismissing all demands including incidental demands against the City of Natchitoches and Hartford Accident and Indemnity Company. Liberty Mutual entered appeals in the Hardy case and this case.


text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 8278.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 13, 1981.
    Rehearings Denied Oct. 14, 1981.
    Doran & Kivett by William T. Kivett, Baton Rouge, for defendant-appellant, State of Louisiana.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendant-appellee, City of Natchi-toches.
    Troy E. Bain, Shreveport, for defendant-appellee, Shirley Campbell.
    Kelly & Salim, Robert L. Salim, Natchi-toches, for plaintiff-appellee, Deborah K. Hardy.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, Bolen & Erwin, James A. Bo-len, Alexandria, Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, Brittain & Williams, Jack O. Brittain, Natchitoches, for defendants-appellees.
    Before CUTRER, STOKER, and BIEN-VENU , JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   STOKER, Judge.

For the reasons stated in the companion case of Hardy v. State of Louisiana, Department of Highways, 404 So.2d 981 (La.App. 3rd Cir. 1981), in which a separate opinion is being rendered this date, the judgment of the trial court in this case is affirmed in all respects except as to its holding relative to the City of Natchitoches and Hartford Accident and Indemnity Company. As to them the judgment of the trial court is reversed. The City of Natchitoches and Hartford Accident and Indemnity Company are now cast in judgment in solido with the State of Louisiana, Department of Transportation and Development, and the judgment is amended accordingly.

The cost of the appeal in this case is assessed one-half to the State and one-half to the City of Natchitoches and Hartford Accident and Indemnity Company.

REVERSED IN PART AND AMENDED; AFFIRMED AS AMENDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In this and the companion cases with which it is consolidated the State of Louisiana, Department of Transportation and Development, the City of Natchitoches and Hartford Accident & Indemnity Company have applied for a rehearing.

We amend our judgment rendered on original hearing in conformity with the per curiam attached to the opinion in Hardy, et al v. State of Louisiana, Through Department of Highways, et al, 404 So. 2d 981 (La.App. 3rd Cir. 1981), so as to give effect to the limits of liability set forth in the policy of Hartford Accident & Indemnity Company. Any recovery by plaintiff herein against Hartford shall be subject to apportionment as provided by law.

APPLICATIONS FOR REHEARING DENIED.


text:
    Teresa McFerrin PARISH, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 8279.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 13, 1981.
    Rehearings Denied Oct. 14, 1981.
    Doran & Kivett by William T. Kivett, Baton Rouge, for defendant-appellant, State of Louisiana.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for defendant-appellee, City of Natchi-toches.
    Troy E. Bain, Shreveport, for defendant-appellee, Shirley Campbell.

      Kelly & Salim, Robert L. Salim, Natchi-toches, for plaintiff-appellee, Deborah K. Hardy.
    Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, Bolen & Erwin, James A. Bo-len, Alexandria, Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, Brittain & Williams, Jack 0. Brittain, Natchitoches, for defendants-appellees.
    Before CUTRER, STOKER and BIEN-VENU , JJ.

       Judge C. Thomas Bienvenu, Jr., Sixteenth Judicial District Court, Parish of St. Martin, participated as Judge Ad Hoc in this decision.

   STOKER, Judge.

For the reasons stated in the companion case of Hardy v. State of Louisiana, Department of Highways, 404 So.2d 981 (La.App. 3rd Cir. 1981), in which a separate opinion is being rendered this date, the judgment of the trial court in this case is affirmed in all respects except as to its holding relative to the City of Natchitoches and Hartford Accident and Indemnity Company. As to them the judgment of the trial court is reversed. The City of Natchitoches and Hartford Accident and Indemnity Company are now cast in judgment in solido with the State of Louisiana, Department of Transportation and Development, and the judgment is amended accordingly.

In this case the City of Natchitoches and its insurer, Hartford Accident and Indemnity Company make complaint as to the quantum of the award in favor of Teresa McFer-rin Parish. It is described as grossly excessive. In particular it is suggested that the trial court abused its discretion by awarding $25,000.00 in general damages although the total medical expenses were only $107.50.

The trial court awarded Mrs. Parish $267.00 in- special damages. The amount awarded for general damages was $25,-000.00. Of the amount awarded $5,000.00 was for physical injuries and $20,000.00 was for mental and emotional trauma.

At the time of the accident on June 18, 1979, Teresa McFerrin Parish was unmarried and her wedding was scheduled for the Saturday following the Monday accident. Her physical injuries included bruises to her legs and knees and a strained muscle in her left shoulder. Clumps of hair were pulled out in the accident and she received cuts and bumps on her head. She apparently hit her head on the steering wheel and lost consciousness. She was taken to the emergency room at Natchitoches Parish Hospital and was seen by Dr. Robert R. Sills. X-rays were taken. Dr. Sills testified that Mrs. Parish complained of neck and chest pain and that she was visibly shaken. Sills prescribed a muscle relaxant. Following the accident Dr. Sills did not see Mrs. Parish again until August 17. At that time she was very nervous and he prescribed Librax. Dr. Sills estimated recovery time for the injuries sustained in the accident to be six weeks to three months.

Teresa McFerrin Parish testified that she was at first unaware of her injuries and was in a daze. Later at the police station she calmed down, realized she was hurt, felt pain and was taken to the hospital. After being examined at the hospital Teresa was taken home and remained in bed until the next morning. The accident was on a Monday. Teresa was to be married Saturday. She cried all day Tuesday and was very upset about Aubrey M. Hardy’s death.

Teresa married on schedule. She was in summer school and dropped one class because she missed one week of school recuperating and could not catch up. Her muscle injury resolved itself in about a month. She testified that she cannot handle her spare time. She tries to stay busy but is now often depressed. She cries frequently and is often irritable. Prior to the accident she did not have these problems.

Lisa McFerrin, Teresa’s sister, was traveling behind her at the time of the accident. She saw the accident happen. She testified that Teresa was bruised and was very upset for a week or so.

Bernice McFerrin, Teresa’s mother, testified that after the accident Teresa was crying, nervous and nearly hysterical. She was “emotionally torn to pieces.” According to Mrs. McFerrin, Teresa had bruises, scrapes, cuts, scratches, and her hair was pulled out in chunks. The bruises were on her legs, knees, shoulders, and elbow. Mrs. McFerrin feels that Teresa’s emotional state has changed; she is now nervous and short tempered. Mrs. McFerrin testified that as a parent she could see “a marked noticeable difference” in Teresa.

Teresa’s father, Norman McFerrin, testified that Teresa now has trouble keeping her composure. In contrast, before the accident she was very feisty and composed. After the incident Teresa did not want to talk about the accident, considered delaying her wedding and cried considerably.

David Parish, Teresa’s financé at the time of the accident and now her husband, testified that he dated Teresa for five years. David came upon the accident about ten minutes after it had occurred. He found Teresa bruised, shaken and in shock. She was in a daze and did not recognize him. He stayed with her from that time until he brought her home to her parents' who put her to bed. David stated that prior to the accident Teresa was very outgoing; now she is short-tempered and withdrawn. He does not like to leave her alone, but she does not like to go out. She has nightmares and crying spells two to three times a week. According to David, Teresa has changed emotionally since the accident.

While the trial court did not expatiate as to the reasons why it assessed plaintiff’s damages at $5,000.00 for physical injuries and $20,000.00 for mental and emotional trauma, the trial court was in a peculiar position to judge the particular damages in question as compared to this court on appeal. As to both physical and emotional injury the awards are on the liberal or high side. Nevertheless, we find it difficult to gauge the exact nature and extent of the injuries. With respect to the award for mental and emotional trauma, plaintiff was affected by two matters, both of which could be quite shattering to one’s emotional well-being and stability. One was Teresa's own injury which produced both physical and cosmetic injury and disability, however slight, at a time so close to her wedding day. The other matter is the fact that an individual was killed in the accident and another severely injured. Although Teresa does not consider herself responsible, and she has not been found so, who may know or judge the emotion generated by such an experience or know how long such feelings persist?

For the foregoing reasons we are of the opinion that we may not disturb the trial court’s award of damages. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) and Reck v. Stevens, 373 So.2d 498 (La.1979).

REVERSED IN PART AND AMENDED; AFFIRMED AS AMENDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In this and the companion cases with which it is consolidated the State of Louisiana, Department of Transportation and Development, the City of Natchitoches and Hartford Accident & Indemnity Company have applied for a rehearing.

We amend our judgment rendered on original hearing in conformity with the per curiam attached to the opinion in Hardy, et al v. State of Louisiana, Through Department of Highways, Et Al, 404 So. 2d 981 (La.App. 3rd Cir. 1981), so as to give effect to the limits of liability set forth in the policy of Hartford Accident & Indemnity Company. Any recovery by plaintiff herein against Hartford shall be subject to apportionment as provided by law.

APPLICATIONS FOR REHEARING DENIED.