author: LEAR, Justice Ad Hoc.

text:
    STATE of Louisiana v. Michael WATSON.
    No. 80-KA-1966.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 29, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet, John B. Cornish, Frank J. Gremillion, Baton Rouge, for defendant-appellant.

       Lemmon, J., concurs in denial of rehearing. Blanche, J., would grant a rehearing.

   LEAR, Justice Ad Hoc.

Defendant Michael Watson was charged by bill of information with the July 26, 1979, armed robbery of Linda Burton, a violation of La.R.S. 14:64. Following trial before a twelve-member jury, defendant was convicted and sentenced to twenty years’ imprisonment at hard labor. By this appeal, defendant urges five arguments as grounds for reversal of his conviction and sentence.

The record indicates that shortly after 9:30 a. m. on July 26,1979, a masked assailant approached Linda Burton as she arrived at the Baton Rouge Burger King Restaurant which she managed. After stopping Ms. Burton, the assailant produced a BB pistol and demanded cash. Mistaking the weapon for a .38 calibre revolver, Ms. Burton surrendered her purse to the unknown male, who then fled on foot.

Several days later, investigating officers received information implicating the accused in the robbery of Ms. Burton. A former classmate of the defendant, Tad Hodges, informed police that he had loaned a BB pistol replica of a .38 calibre revolver to the accused shortly prior to the instant offense. When Hodges later questioned defendant as to the whereabouts of the pistol, defendant stated that it was in the back of a vehicle belonging to Danny Sides.

The police then followed up on this information by contacting Sides and asking him to report to police headquarters for questioning. In complying with this request, Sides confessed that he had driven the getaway vehicle involved in the heist, which had actually been perpetrated by the accused. Officers proceeded to contact the accused, who voluntarily appeared at police headquarters and admitted responsibility for the robbery.

Over defense objection, the accused and his co-defendant, Danny Sides, were subsequently tried in a single proceeding which utilized dual juries. During the course of this proceeding, the state adduced testimony from Ms. Burton concerning the factual setting of the robbery. However, because Ms. Burton was unable to identify her assailant, the prosecution was forced to rely upon the defendants’ confessions to establish their complicity in the crime. To avoid confrontation problems under Bruton, the Sides jury was removed from the courtroom during testimony regarding appellant’s confession and the Watson jury was removed during the introduction of Sides’ confession. In addition, the trial court made every effort to insure that there was no contact between the two juries, which remained separated throughout trial.

Due to the admission of each defendant’s confession, the only disputed issue at trial concerned the classification of the accused’s BB pistol as a dangerous weapon. The Sides jury resolved this issue in the defendant’s favor, convicting Sides of simple robbery. However, the Watson jury thought differently and convicted appellant of armed robbery.

ARGUMENTS NOS. II AND III

(Supplemental Assignments of Error Nos. 1, 2 and 3)

In these arguments, defendant contends that the trial court erred in using two juries to try two separately-billed defendants in a single proceeding. As authority for this position the defense relies upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In Bruton v. United States, supra, the prosecution had introduced in a joint trial the confession of one of the defendants. The trial court admitted the confession but cautioned the jury that it could not be considered as evidence against the code-fendant. In reviewing this procedure, the Supreme Court held that the inculpating statements contained in the confession made the defendant a witness against his codefendant. As the defendant giving the confession chose not to testify, he was unavailable for cross-examination. In consequence the codefendant’s sixth amendment right to confront the witness against him was violated.

Ever since Bruton was decided, trial judges have suggested various alternative procedures by which defendants might be tried jointly, even though one had given a statement to the police. Such alternatives have included: deletion of prejudicial references to, a codefendant, see ABA Standards Relating to Joinder and Severance, § 2.3(a); use of a bifurcated joint trial, where the confession is withheld from evidence until the jury returns a verdict as to the implicated codefendant, United States v. Crane, 499 F.2d 1385 (6th Cir. 1974); and joint trials utilizing a separate jury for each defendant, with each jury hearing only that evidence admissible against the defendant as to whom it is to render a verdict, United States v. Sidman, 470 F.2d 1158 (9th Cir. 1972). By use of such procedures, various trial courts have sought to obey the command of Bruton while simultaneously achieving the substantial savings of judicial time that may be accomplished through a joint trial.

Propriety of Dual Jury Trial As Alternative to Severance

The use of dual juries to avoid the confrontation problems present in Bruton was first considered in United States v. Sidman, supra. In that case, the court found that exclusion of the Sidman jury during the introduction of his codefendant’s confession effectively allowed Sidman a joint trial with his codefendant on all of the evidence that was admissible against both, and a separate trial on the evidence admissible only against him pursuant to Bruton. The court further stated that use of this procedure in no way deprived the accused of any constitutional or statutory rights to which he was entitled. Despite this conclusion, however, the Ninth Circuit Court declined to endorse such a dual jury procedure, instead holding only that Sidman had not been prejudiced as a result.

This court addressed a state request for the use of dual juries in the case of State v. Thomas, 319 So.2d 789 (La.1975). In Thomas, jointly indicted defendants were afforded an option to be tried under the jury provisions of the Constitution of 1921 (jury of five, all of whom must concur to render a verdict), or to elect trial under the jury provisions of the Constitution of 1974 (six-member jury, five of whom had to concur to render verdict). When each of these defendants elected a different mode of trial, the state proposed to preserve their joint trial by impaneling two separate juries.

In considering this request, the Thomas court noted that Louisiana’s statutory law made no provision for such a dual jury procedure. While conceding that such a procedure might be ordered under its supervisory jurisdiction, the court felt that numerous complications could result, and that for this reason, separate trials were necessary.

Though not specifically mentioned by the Thomas court, it seems apparent that just the physical difficulties of seating and separating two juries in a single courtroom would require tremendous vigilance by the trial court. (In this case, the Sides jury was forced to occupy the front row of the courtroom.) The possibility of juror speculation as to the justification for such unique procedures could never be completely eliminated. In the case at bar, defendant Watson claims that the dual jury procedure prejudiced his case: (1) because his jury did in fact discover the substance of Sides’ confession, and (2) because it forced speculation by his jury as to the verdict which would be returned by the Sides jury.

(a) Alleged Bruton Violation

The contention that Watson’s jury actually discovered the existence of his codefend-ant’s confession and its implication of defendant Watson formed the subject of defense motions for mistrial on at least two occasions during trial. See Assignments of Error Nos. 2 and 3. During its case-in-chief, the prosecution . questioned Baton Rouge City Police Officer William Denicola as follows:

“Q Did you-uh-arrest either of the defendants?
A Yes, sir. I did.
Q You-uh-interrogated these defendants with reference to this incident?
A Yes, I did.
Q Both of ’em?
A Yes, I did.”

Following this line of questioning, both juries were excused and each defendant’s counsel moved for a mistrial on grounds that this inquiry had undermined the very rationale for use of the dual jury procedure by informing each jury that both defendants had confessed their responsibility for the Burton robbery.

The other motion for mistrial came when, on the morning of the second day of trial, an article appeared in the Baton Rouge Morning Advocate concerning the unique nature of defendants’ dual jury trial and explaining the reason why such joint trials of confessing codefendants are normally prohibited. Paragraph two of this article noted that both Sides and Watson had given written statements to the police in which they admitted that Watson had used a BB pistol during the holdup of Linda Burton.

When polled at defense request, seven members of the Watson jury admitted seeing the article, though only two jurors had read much beyond the headline. However, when questioned further as to whether the article had supplied any information that was not already known, one of these jurors, a Mr. Jimmy R. Causey, specifically stated that he had not previously known that both defendants had signed confessions. Despite Causey’s further disclaimer that this knowledge would not affect his verdict, it is clear that Causey’s discovery had effectively undermined the theory behind the dual jury trial. In fact, the very rationale behind the Bruton decision was that a trial court’s instruction to disregard the inculpatory. statement of a codefendant in determining the guilt or innocence of a jointly-tried defendant would be insufficient .to cure the confrontation violation worked by such hearsay testimony.

Nevertheless, in case at bar, the Watson jury’s discovery of Sides’ confession does not warrant reversal of defendant’s conviction. Under the rule of State v. Hopper, 253 La. 439, 218 So.2d 551 (1969), joint trial is permissible where the confessions involved are so substantially identical or interlocking as to minimize the risk of “prejudicial spillover” incrimination that the lack of ability to cross-examine is reduced to an insignificant level. See also State v. McSpaddin, 341 So.2d 868 (La.1977); United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (3d Cir. 1973), cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973); State v. Stubbs, 239 So.2d 241 (Fla.1970).

In the instant case, the confessions of both Sides and Watson attributed the actual perpetration of the robbery to Watson while describing Sides as the driver of the getaway vehicle, while Watson’s confession was more detailed as regards the details of the offense (Sides knew little of the actual robbery), there were no allegations con-tamed in Sides’ version of the robbery that were not admitted by Watson. Thus, at least as to defendant Watson, the confessions at issue here are identical and could have been admitted even in a joint trial before a single jury without prejudice to the accused. For this reason, the mere fact that Watson’s jury learned of Sides’ confession during the course of their joint “dual jury” trial did not sufficiently prejudice Watson’s defense as to merit reversal.

(b) Speculation As To Verdict Of Sides’ Jury

Conceding that the sole issue below was whether or not the unloaded BB pistol used in this offense constituted a dangerous weapon, appellant argues that his jury was coerced into returning a “guilty of armed robbery” verdict in order to ensure that Watson, whose actual involvement in the robbery was greater than that of Sides, would be convicted of at least as great a grade of the offense as would his codefend-ant. Thus, according to appellant, jury resolution of the dangerous weapon element in his favor would then trigger a secondary inquiry as to whether the Sides jury would reach a similar conclusion.

This contention constitutes pure conjecture of the part of appellant, there being no evidence to support the theory that Watson’s jury failed to follow the trial judge’s instruction that their verdict be based solely upon evidence adduced at trial. Normally, jurors’ reasoning processes may be assailed only on the ground that the evidence adduced at trial was legally insufficient to support their finding of guilt; other inquiries into the deliberations of a properly instructed jury are generally frowned upon (as, for example, where the jury returns a lesser verdict despite the apparent sufficiency of the evidence to support conviction of a greater offense).

In the present case, appellant makes no contention that the evidence was insufficient to support the conclusion that the BB pistol, as used in the Burton robbery, constituted a dangerous weapon. Assuming this to be the case, the conclusions of the respective juries would appear readily supportable. Ms. Burton genuinely believed the weapon wielded by defendant Watson to be a .38 calibre revolver. The appellant’s reckless behavior in pointing this replica of a .38 calibre revolver in Ms. Burton’s face while demanding cash could easily be used to support the inference that defendant intended to create a “charged atmosphere” in which the possibility of death or great bodily harm existed. State v. Bonier, 367 So.2d 824 (La.1979); State v. Byrd, 385 So.2d 248 (La.1980). However, appellant’s behavior did not support a similar inference of intent on the part of his codefendant Sides. Sides played no role in procuring the weapon and his participation was limited to driving the vehicle used to aid appellant in his escape. Thus, in each instance, it cannot be forcefully argued that the jury verdicts were not motivated by a proper regard for evidence introduced at trial.

CONCLUSION

Since the appellant has failed to demonstrate prejudice arising out of the trial 'court’s utilization of two juries to permit trial of the appellant and his codefendant in a single proceeding, it is presently unnecessary for the court either to approve or to reject such a dual jury procedure as a viable alternative to severance pursuant to Bru-ton. See United States v. Sidman, supra. However, it is clear that such a procedure is not specifically authorized under the Louisiana Code of Criminal Procedure. As vividly demonstrated in the instant case, this procedure also presents numerous physical and legal complications, the possible drawbacks of which would appear to argue against approval of this dual jury procedure in future cases.

To select two juries to determine guilt or innocence of two defendants may suggest to the respective juries that the defendants should be treated differently or that perhaps one defendant may be more guilty than the other or more involved in the offense.

We must, therefore, discourage the utilization of “dual juries” until such time as the necessary guidelines are incorporated into our Code of Criminal Procedure.

DECREE

Accordingly, the conviction and sentence of the defendant, Michael Watson, are affirmed.

AFFIRMED.

       Judges Covington, Chiasson and Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.

      . Use of this dual jury procedure came at the state’s request.

      . Two distinct jury venires were used during the selection process. Twelve jurors were first impaneled to serve in the Watson case and then excused while selection of the Sides jury was completed. See R. pp. 4-6. The judge explained to each jury that there would be two juries, one to try the guilt or innocence of Watson and the other to try the guilt or innocence of Sides. The trial court further instructed the jurors that removal of one or both juries would be necessary from time to time during the course of trial and that they should not speculate as to reasons for their removal. During trial, the Watson jury was seated in the regular jury box while the Sides jury occupied the front row of the courtroom.

      .Appellant’s original brief presented only a single argument relating to the voluntary character of the accused’s confession. For purposes of continuity, this contention, captioned Argument No. I, will be dealt with later. See discussion, infra.

      . Actually, Sides gave only an oral statement to this effect.

      .In reaching this conclusion, the Hopper court stated:
      “Here, however, in the context of the circumstances presented, we have the codefend-ants’ admissions standing side by side with each confessor acknowledging in his own confession the same criminal conduct ascribed to him by the other. The hearsay statements are corroborated by each code-fendant’s extrajudicial statement or vice ver-sa. Under such a situation, it is wholly unnecessary to speculate whether the cautionary instructions of the judge may not have effectively prevented the jury from disassociating each confessor’s inculpation of his codefendant in determining the latter’s guilt. For, as we see it, the hearsay caused no injury and did not deprive either defendant of a substantial constitutional right because, if each defendant had taken the stand, it is difficult to perceive what benefit either could have gained by cross-examining the other anent- the same criminal conduct to which each had already voluntarily confessed extra-judicially.” 253 La. at 450, 218 So.2d at 554-555.

      . Of course, Watson’s jury did not know the precise text of Sides’ confession, though the article contained in the Morning Advocate did state that Sides had given a written statement to the effect that Watson had perpetrated the Burton holdup. Since this information coincided with the admissions contained in Watson’s own statement, there is no reason to distinguish Hopper here.

      . In any event, Sides’ confession had no bearing whatsoever on the “dangerous weapon” element which formed the sole controverted issue at the defendants’ trial.

      . Where there is evidence in the record to support conviction for a greater offense, this evidence will support conviction of a lesser offense which has been made responsive by the legislature so long as the elements of the lesser offense are included in the greater offense. State v. Booker, 385 So.2d 1186 (La.1980); cf. State v. Gisclair, 382 So.2d 914 (La.1980); State v. Qualls, 353 So.2d 978 (La.1978).

      . Dangerous weapon is defined by La.R.S. 14:2(3) as an “instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” The dangerousness of the instrumentality by reason of the manner in which it is used is a question of fact for the jury to decide. State v. Murff, 215 La. 40, 39 So.2d 817 (1949).

      . Under La.R.S. 14:24, not all principals are automatically guilty of the same grade of offense. One who aids and abets in the commission of a crime may be charged and convicted with a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Holmes, 388 So.2d 722 (La.1980),

      . Had the confessions of the two defendants in this case failed to meet the rule set forth in Hopper, supra, a different result would have been necessary here.


source: Caselaw Access Project

author: DENNIS, Justice. MARCUS, Justice

license: Public Domain

text:
    Floyd W. LOPEZ v. BLUE CROSS OF LOUISIANA.
    No. 80-C-1953.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 18, 1981.
    Kenneth N. Simmons, of Davis & Simmons, Many, for plaintiff-applicant.
    Joe Payne Williams, of Brittain & Williams, Natchitoches, for defendant-respondents.
   DENNIS, Justice.

The issue in this case is whether the insurance company had just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard against an unjust claim, in denying the insured’s hospitalization expense claim because there was no medical necessity for the confinement.

The plaintiff, Floyd W. Lopez, had a hospitalization policy of insurance with defendant, Blue Cross of Louisiana, which covered plaintiff and his wife, June Lopez, for the payment of hospitalization benefits and for doctors’ expenses.

Mrs. Lopez was hospitalized at Brent-wood Hospital, Inc. in Shreveport, from January 16, 1978 until February 13, 1978 and was treated for depressive mental neurosis during this time. Her hospital bills ■ were $2,888.31 and doctors’ bills were $615.00. She was transferred to Schumpert Memorial Hospital in Shreveport on February 13, 1978 and remained there until February 20, 1978, incurring $597.15 additional hospitalization expenses.

Blue Cross refused to pay all but $139.00 of plaintiff’s claims based on these hospitalization expenses. Plaintiff sued the insurer for the unpaid balance, penalties and attorney’s fees.

Dr. Andrew J. Mullen, a psychiatrist, was Mrs. Lopez’s attending physician, and testified in great detail about his examination and treatment of Mrs. Lopez. He testified that, in his opinion, Mrs. Lopez needed hospitalization to treat her condition of depressive neurosis.

Dr. Richard B. Langford, who testified for the defendant, said that he had treated Mrs. Lopez prior to the episode of her hospitalization, and that while he did not see her during her stay in Brentwood, and accordingly could not testify in that respect, he did treat her from February 13, 1978 through February 20, 1978, during her stay at Schumpert. The trial judge found that Dr. Langford was evasive and equivocal as to some of the questions propounded to him, but noted that the doctor conceded that during the time she was in Schumpert, and he was treating her, “... she was not ready to be discharged.” Dr. Langford also testified that Dr. Mullen saw Mrs. Lopez at least once while she was in Schumpert and on that occasion made recommendations as to medicine for her emotional illness.

The trial court found that the hospitalization of Mrs. Lopez was necessary as ordered by her attending physicians, and that the refusal of Blue Cross of Louisiana to pay her medical expenses, all of which are covered under the terms of the policy, was arbitrary and capricious. The trial judge noted that, although the defendant’s doctors spoke in glowing terms of Dr. Mullen, Blue Cross took the position that Mrs. Lopez’s hospitalization was unnecessary from a mere reading of the records, and without seeing or examining Mrs. Lopez, and for no good reason that the company could give.

The trial judge found that defendant’s refusal to pay under the circumstances, according to the provisions of La.R.S. 22:657, subjects defendant to a penalty payable to Mr. Lopez of double the amount of the benefits sued for, i. e., $3,960.86, plus interest as provided by law from judicial demand, and all costs of court, including expert witness fees, fixed at $50.00 for Dr. Richard B. Langford and $125.00 for Dr. Andrew J. Mullen. In addition, the trial judge found that Mr. Lopez was entitled to attorney’s fees in the sum of $3,000.00.

Blue Cross appealed to the court of appeal which affirmed in part and reversed in part, finding no error in the trial judge’s ruling that the hospitalization was medically necessary, but holding that the trial court was clearly wrong in awarding attorney’s fees and penalties because Blue Cross did not make an arbitrary or capricious decision. 386 So.2d 697. We granted certiorari to review the reversal of the trial court’s award of penalties and attorney’s fees.

Whether plaintiff is entitled to recover penalties and attorney’s fees in this case is governed by La.R.S. 22:657(A) which, in pertinent part, provides:

“All claims arising under the terms of health and accident contracts issued in this state, ... shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent business man on his guard, exist .... Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court .... ”

The statutory language is clear and unambiguous. Whenever a claim is properly presented under a health and accident contract, it must be paid within 30 days, unless just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard that the claim is unjust, exist. The statute was evidently enacted to effect a speedy collection of just claims without diminution and without unnecessary delay and expense.

Applying this rule to the facts of this case, we conclude that the insurer’s failure to pay the plaintiff’s properly filed claim within 30 days was without just and reasonable grounds because the company had no information which would have placed a reasonable and prudent businessman on his guard that the claim was unjust. The defendant’s staff physician testified that coverage was disavowed because the hospital records which were sent to him, along with letters from two different doctors who certified that Mrs. Lopez’s hospitalization was required, did not contain certain details sufficient according to company guidelines to establish the medial necessity of the hospital admission. Another defense witness, a physician consulted' after suit was filed, only added his opinion that according to the guidelines the record submitted did not establish a recoverable claim. These same guidelines, however, were never made available to either the treating physician or the insured; indeed, there is no indication that either was even aware such guidelines existed. Moreover, the claim was denied without any attempt to request additional information from Mrs. Lopez’s physician. Testimony by both defense witnesses acknowledged that evaluation of a patient is best done by the treating physician rather than another physician who studies records only and never sees the patient. Both witnesses further testified that they knew Mrs. Lopez’s physician and had a high opinion of his professional competence. We conclude that the insurer could not have been reasonably put on its guard against an unjust claim on the basis of this evidence.

Blue Cross contends that it was entitled to rely upon the language of its policy which provides:

“Basic and Supplemental Benefits are NOT [sic] provided for the following types of hospital admissions or portions of admissions — Not medically necessary — i. e., when in the judgment of the Carrier the medical services did not require the acute hospital bedpatient (overnight) setting, but could have been provided in a physician’s office, the outpatient department of a hospital, or in a lesser facility without adversely affecting the patient’s condition or the quality of medical care rendered.”

Defendant does not make clear, however, exactly how this policy provision would enable it to avoid payment of a penalty in this case. If its contention is that the policy provision supersedes the commandment of the penalty statute, the argument is rejected. The statute clearly was enacted for the preservation of public order and good morals, and the parties to the insurance policy could not by contract derogate from the force of such a law. La.C.C. art. 11. See A. Yiannopoulos, Louisiana Civil Law System, § 42 (1977).

For the reasons assigned, the judgment of the court of appeal is reversed in part and the judgment of the trial court is reinstated at defendant’s cost.

REVERSED IN PART; TRIAL COURT JUDGMENT REINSTATED.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents being of the opinion that the judgment of the Court of Appeal is correct.

MARCUS, Justice

(dissenting).

The court of appeal, while finding that the trial judge’s conclusion that plaintiff’s hospitalization was medically necessary was not clearly wrong, concluded that the trial judge erred in finding that the insurer (Blue Cross) did not have, based on the doctors’ and hospital’s records, just and reasonable grounds for denying plaintiff’s claim. I agree. Accordingly, I respectfully dissent.


author: BOUTALL, Justice Ad Hoc.

text:
    STATE of Louisiana v. Ray Matthews KORMAN.
    No. 80 KA 2344.
    Supreme Court of Louisiana.
    April 6, 1981.
    Rehearing Denied May 18, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Marilyn Castle, and Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Robert D. Downing, Baton Rouge, for defendant-appellant.
   BOUTALL, Justice Ad Hoc.

Ray Matthews Korman was charged with violation of LRS-40:966(A)(1), possession of a controlled dangerous substance (marijuana) with intent to distribute. After a bench trial he was found guilty as charged and sentenced to serve three years in the Department of Corrections and to pay a fine of $700, or, in default of payment to serve 60 days in the Parish jail. He appeals his conviction on the basis of four assignments of error.

The first assignment of error by defendant asserts that the trial judge erred in denying his motion for acquittal pursuant to C.Cr.P. Article 778 after the state concluded its presentation of evidence. The defendant contends that there was no evidence of guilty knowledge and that whatever circumstantial evidence was offered did not exclude every reasonable hypothesis of innocence. LRS-15:438.

The evidence offered by the state disclosed that the narcotics division of the East Baton Rouge Sheriff’s Office had received some information from an informant, and as a result had placed under surveillance an apartment in an apartment complex occupied by the defendant. While the premises were under surveillance, the defendant was seen leaving his apartment and going outside to his automobile, opening the trunk, extracting an army type duffel bag made of green canvas, and carry the bag back to his apartment. A search warrant was then obtained, and pursuant to the warrant a search was made of the apartment during which some 22 and Vz pounds of marijuana were discovered. The marijuana was found in various places in the bedroom, and was in a number of bags, some plastic and some brown paper, ranging from 1 Vz to 2Vz pounds each as follows: One bag on the top shelf of the bedroom closet, one bag in a grey ice chest on the floor in the bedroom, three bags were found on the floor of the bedroom closet, and the army duffel bag was found closed on the floor of the closet, containing four packages.

At the time of the search, the defendant was not in the apartment, but was in an apartment on an upper floor, from which he was brought down and placed under arrest. It is his contention that he had no knowledge of the presence of the marijuana (he later testified that he was keeping the duffel bag and the ice-box for a friend) and that the state’s proof of intent was based solely on circumstantial evidence not sufficient to exclude other reasonable hypotheses. To this we point out that the record contained testimony by a sergeant of the narcotics division, without objection, that his investigation showed the defendant to be the occupant of the premises and the owner of the automobile. Additionally, the witness testified over objection that after arrest of defendant, the defendant admitted that he was the occupant of the apartment. The state did not offer evidence of continued surveillance from the time when this latter witness left the scene to return with a search warrant, a matter of lVz to 2 hours.

We conclude that this issue is-resolved by applying the standard used in reviewing the sufficiency of evidence as enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Succinctly stated, that standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant is guilty. We have adopted this view in the cases of State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Hartman, 388 So.2d 688 (La.1980). Considering the widespread distribution of the numerous bags of marijuana, and the bulk thereof, together with the unobjected testimony as to the occupancy of the premises, ownership of the car, the transportation of the duffel bag from the car to the apartment, the close proximity in time, and applying those facts with the evidence as a whole, we conclude that the standard is satisfied in this case. This assignment lacks merit.

We shall consider the next two assignments of error together because each is based upon the State’s introduction of an inculpatory statement of the defendant during the course of its presentation of evidence.

While the State was in the process of questioning Sergeant J. Thompson of the narcotics division, and the Sergeant was in the process of relating the events of the search and subsequent arrest, the witness testified that the defendant Korman was upstairs in another apartment, that he was then brought down to the apartment being searched and placed under arrest, and advised of his rights. At that time he related that the defendant had made a statement, to which the defense attorney objected for failure of the State to give notice of the intent to use an inculpatory statement as provided by Code of Criminal Procedure Article 768. After argument, the court overruled the objection and permitted the officer to testify that the defendant made a statement saying “ * * * * ‘ “But Ya’ll have the wrong address” ’ He said ‘ “I live here, but ya’ll got the wrong address” ’ ”

The defendant urges that the plain wording of Article 768 requires written notice to be given before such a statement may be introduced in evidence, and the failure to give that notice requires the in-culpatory statement to be barred from evidence. We have held that in non-jury trials, the State was not required to give advance notice under C.Cr.P. Article 768 of its intent to use a confession and inculpato-ry statements of the defendant. State v. Cleary, 262 La. 539, 263 So.2d 882 (La.1972); State v. Himel, 260 La. 949, 257 So.2d 670 (La.1972). However, see the discussion in the case of State v. Sneed, 316 So.2d 372 (La.1975) a jury case in which error in the notice was ruled not prejudicial. We also note in this case that there was no showing of defendant that he was surprised or prejudiced in his defense by virtue of the introduction of the statement. Indeed, there had been a motion to suppress filed earlier in this case in which the search warrant was attacked on the ground that it described the wrong premises. Accordingly, the defendant was well aware that occupancy of the apartment was an expected issue.

The next error urged in this regard is that the defendant did not knowingly and willfully waive his jury trial because he was not aware that such a waiver may permit the use or introduction of the statement in this judge trial, without notice, when he would be entitled to written notice in a jury trial. We point out that the waiver of jury trial was made with the District Attorney on the basis that one wished to avoid a long jury trial, and the other wished to avoid the appearance of the informant against him as a witness. The trial judge questioned both parties as to this agreement and persisted in asking defendant if he was aware of the consequences of the waiver, whereupon he was assured by the defendant that he wished to waive. It is obvious that at that time the defendant desired the waiver as being advantageous to him, and we see no reason to annul the waiver when the results of the trial did not turn out as he hoped. We conclude that a knowing and intelligent waiver of the right to a jury trial was made within the principles announced in State v. Johnson, 389 So.2d 1302 (La.1980).

We find no reversible error in these two assignments of error.

The last assignment of error is that this court erred in failing to grant defendant’s motion to suppress in our earlier decision in State v. Korman, 379 So.2d 1061 (La.1980) wherein we held that the trial court had erred in its consideration of the validity of the search warrant and in granting defendant’s motion to suppress the evidence. The defendant urges to us that our decision was incorrect and should be reviewed and overturned.

With the denial of the rehearing petition in that case on March 3, 1980, the decision became final. We gave that matter our careful consideration, and there is no showing of new evidence that would cause us to reconsider, accordingly, we refuse to reconsider our previous decision.

The conviction and sentence are affirmed.

CALOGERO, J., concurs.

      . Judges Gulotta, Boutall and Schott of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon, Justices Caloge-ro, Dennis and Watson.


author: PER CURIAM.

text:
    STATE of Louisiana v. Charles C. FESTERVAND.
    No. 80-KA-2710.
    Supreme Court of Louisiana.
    April 15, 1981.
    Rehearing Denied May 18, 1981.

    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Dist. Atty., A. L. Blondeau, Asst. Dist. Atty., for plaintiff-appellee.
    Larry Johnson, John Landrem, Jr., Shreveport, for defendant-appellant.

       DIXON, C. J., and DENNIS, J., would grant a rehearing as to sentence.

   PER CURIAM.

Affirmed.

DENNIS, J., dissents.


text:
    STATE of Louisiana, ex rel. Robert Charles WADDELL v. STATE of Louisiana.
    No. 81-KH-0717.
    Supreme Court of Louisiana.
    March 19, 1981.
    As Amended April 6,1981.
   In re Robert Charles Waddell, applying for remedial writs (Bond Reduction). Parish of Rapides.

Granted. The pro se motion withdrawn by relator’s appointed counsel is ordered reinstated. The trial court is ordered to conduct a hearing on the pro se application for bond reduction.


text:
    STATE of Louisiana, ex rel. Melvin LADD v. STATE of Louisiana.
    No. 81-KH-0147.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Melvin Ladd, applying for remedial writs. Orleans Parish. No. 273-913.

Denied.


text:
    STATE of Louisiana v. David Lee ROUSH.
    No. 81-K-0212.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re David Lee Roush, applying for writs of certiorari and review. Parish of Ouachi-ta. No. 39812.

Denied, adequate remedy by review in the event of conviction.

DIXON, C. J., and WATSON, J., would grant the writ.


text:
    STATE of Louisiana, ex rel. Jimmy Lee ROBINSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0237.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Jimmy Lee Robinson, applying for writs of certiorari, mandamus and habeas corpus. Bossier Parish. No. 53327.

Denied.


text:
    STATE of Louisiana, ex rel. Stanley SULLIVAN, Sr. v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 81-KH-0284.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Stanley Sullivan, Sr., applying for writs of habeas corpus, certiorari and remedial writs. Parish of East Baton Rouge. No. 9-74-3922.

Denied.


text:
    STATE of Louisiana v. Charles BROWN and Randall Ezell.
    No. 81-K-0296.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Charles Brown and Randall Ezell, applying for writs of certiorari, review, prohibition and mandamus. St. Tammany Parish. No. 81267.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. Donald Lee MURPHY and Lois Marie Murphy.
    No. 81-K-0305.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Donald Lee Murphy and Lois Marie Murphy, applying for writs of certiorari, mandamus and prohibition. Parish of Sabine. Nos. 28127 and 28128.

Writ denied.

DIXON, C. J., would grant the writ.


text:
    STATE of Louisiana v. Colin Scott CAMPBELL.
    No. 81-K(A)-0318.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Colin Scott Campbell, applying for remedial writs. Parish of Bossier. No. 56576.

Denied.

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


text:
    STATE of Louisiana v. Carl J. ATKINSON.
    No. 81-K(A)-0336.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Carl J. Atkinson, applying for remedial writs. Parish of Orleans. No. 269-665.

Denied.


text:
    STATE of Louisiana, ex rel. Randall ALMARAZ v. STATE of Louisiana.
    No. 81-KH-0379.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Randall Almaraz, applying for remedial writs. Parish of Terrebonne. No. 86563.

Denied.


text:
    STATE of Louisiana, ex rel. Tracy LEWIS v. Honorable Sam C. CASHIO, District Attorney, 18th Judicial District Court et al.
    No. 81-KH-0404.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Tracy Lewis, applying for remedial writs. Parish of West Baton Rouge. No. 222-741 Div. F.

Writ denied.


text:
    STATE of Louisiana v. Alvin J. CLARK, Jr.
    No. 81-K-0409.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Alvin J. Clark, Jr. applying for remedial writs. Parish of West Feliciana. No. 7218.

Denied.


text:
    STATE of Louisiana v. William B. CUNNINGHAM, Jr.
    No. 81-K-0417.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re William B. Cunningham, Jr., applying for remedial writs of certiorari, prohibition, and mandamus. Parish of Caldwell. No. 19346.

Writ denied. Relator has an adequate remedy by review in the event of conviction.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Chester BABINEAUX.
    No. 81-K-0419.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Chester Babineaux, applying for writs of certiorari and review. Parish of Iberia. No. 30679.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Carlous T. LEWIS.
    No. 81-K-0423.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Carious T. Lewis, applying for remedial and supervisory writs of certiorari, prohibition and mandamus. Parish of Union. No. 25960.

Denied. Adequate remedy by review in event of conviction.


text:
    Jane NALTY v. CITY OF NEW ORLEANS PUBLIC LIBRARY and/or City of New Orleans, Wayne J. Lefebure and ABC Insurance Company.
    No. 81-C-0425.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re City of New Orleans Public Library and/or City of New Orleans, Wayne J. Lefebure and ABC Insurance Company, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 11469.

Denied.


text:
    STATE of Louisiana, ex rel. Ernest LARSEN v. Judge Alvin OSER.
    No. 81-KH-0430.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Ernest Larsen, applying for writ of mandamus. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Jimmie L. PUCKETT v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 81-KH-0431.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Jimmie L. Puckett, applying for remedial writs. Parish of Orleans. No. 263-663.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Derrick BELL v. STATE of Louisiana.
    No. 81-KH-0480.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Derrick Bell, applying for remedial writs. Parish of Orleans. No. 40171.

Denied.


text:
    STATE of Louisiana v. Dexter BAPTISTE, Henry Barrio and Darryl Every.
    No. 81-K-0492.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Dexter Baptiste, Henry Barrio and Darryl Every, applying for writs of certio-rari, review, prohibition, mandamus and stay order. Parish of Orleans. No. 278-699.

Denied. Adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana, ex rel. Mitchell MINOR v. STATE of Louisiana.
    No. 81-KH-0512.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Mitchell Minor, applying for writ of habeas corpus. Parish of East Feliciana. No. 9-78-942.

Writ denied.


text:
    STATE of Louisiana, ex rel. Aaron THOMAS v. STATE of Louisiana.
    No. 81-KH-0516.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Aaron Thomas, applying for writ of mandamus. Parish of St. Landry. Nos. 26852 and 26853.

Denied.


text:
    STATE of Louisiana, ex rel. Bruce CHOYLE v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0532.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Bruce Choyle, applying for the writs of habeas corpus and mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Beatrice LEDET.
    No. 81-K-0542.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Beatrice Ledet, applying for writs of certiorari, review, prohibition and mandamus. Parish of Orleans. Nos. 276-623 and 276-626.

Denied.


text:
    POINTE COUPEE CITIZENS FOR A BETTER COMMUNITY, INC. v. Roland ALBERT et al.
    No. 81-C-0546.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Roland Albert, et al., applying for supervisory and remedial writs of prohibition, mandamus and certiorari. Parish of Pointe Coupee. No. 16461.

Denied.


text:
    STATE of Louisiana, ex rel. Thurmond CAMPBELL v. STATE of Louisiana.
    No. 81-KH-0569.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Thurmond Campbell, applying for remedial writs. Parish of Caddo. No. 114189.

Writ denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Henry A. REED v. STATE of Louisiana.
    No. 81-KH-0572.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Henry A. Reed, applying for remedial writs. Parish of Orleans.

Denied. It is not necessary that the lawyer be dismissed. His employment has ended.


text:
    STATE of Louisiana v. Monroe McELVEEN.
    No. 81-K-0584.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re State of Louisiana, through the District Attorney Marion B. Farmer. Parish of Washington. No. 36048.

Denied. The state has the right to appeal from a ruling holding a statute unconstitutional, but may not apply for writs from such a ruling of the trial court after the time for appeal has expired.


text:
    STATE of Louisiana v. Richard R. ROBINSON.
    No. 81-K-0637.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Henry N. Brown, Jr., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Bossier. No. 58004.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Vernon Deville DONALDSON.
    No. 81-K-0722.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Vernon Deville Donaldson, applying for writ of certiorari, prohibition and mandamus. Parish of Ouachita. No. M45075.

Denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Lorin ANDRE
    No. 81-K-0735.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Lorin Andre, applying for writs of certiorari, prohibition, mandamus and stay order. Jefferson Parish. No. 80-1981.

Denied.


text:
    STATE of Louisiana v. Jerry BALDWIN.
    No. 81-K-0773.
    Supreme Court of Louisiana.
    March 26, 1981.
   In re Jerry Baldwin, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. No. 115982.

Granted. Trial court is ordered to permit defendant to represent himself and to have assistance of counsel. C.Cr.P. art. 511; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


text:
    CITY OF MONROE v. James T. JACOBS, Jr.
    No. 81-K-0489.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re James T. Jacobs, Jr., applying for writ of certiorari, City Court of Monroe. Parish of Ouachita. No. M41550.

Transferred to District Court for treatment as an appeal. R.S. 13:1896(B).


text:
    STATE of Louisiana v. Brent KING.
    No. 81-K-0832.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Brent King, applying for writs of remedial writ and a stay order. Parish of Terrebonne.

Granted. The bond is reduced to $15,000.


text:
    P. H. A. C. SERVICES, INC. v. SEAWAYS INTERNATIONAL, INC., Pennzoil Company, and Pennzoil Producing Company. ACOUSTICAL SPRAY INSULATORS, INC. v. PENNZOIL COMPANY et al.
    No. 80-C-2915.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re P. H. A. C. Services, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 393 So.2d 115.

Granted.


text:
    Jean W. DUNAWAY v. BANKER’S LIFE AND CASUALTY COMPANY and Life Insurance Company of North America.
    No. 81-C-0545.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Jean W. Dunaway, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 387.

Denied.

LEMMON, J., would grant the writ.


text:
    Paul K. COBB v. COLEMAN OLDSMOBILE, INC.
    No. 81-C-0537.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re BMW of North America, Inc., Third Party Defendant, applying for writ of cer-tiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 402.

Denied.

MARCUS, J., would grant the writ.


text:
    William D. OLIVER, Sr. v. Meridel Vincent OLIVER.
    No. 81-C-0536.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re William D. Oliver, Sr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 192.

Writ denied.


text:
    Lynda Shipp EFFERSON v. Chester Clay EFFERSON.
    No. 81-C-0534.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Lynda Shipp Efferson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 394 So.2d 1294.

Denied.

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


text:
    EXXON CORPORATION v. Conrad ROBICHAUX, Jr., Rufus B. Naquin and Charles E. Silva, Sr.
    No. 81-C-0530.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Conrad Robichaux, Jr., Rufus B. Naquin and Charles E. Silva, Sr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 393 So.2d 224.

Denied.

LEMMON, J., would grant the writ.


text:
    GULF-WANDES, CORP., et al. v. VINSON GUARD SERVICE, INC., et al.
    No. 81-C-0526.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Vinson Guard Service, Inc., Admiral Insurance Co., Houston General Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 207.

Denied.


text:
    Charles BINDER v. Edgar D. McGEHEE et al.
    No. 81-C-0504.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Edgar D. McGehee, George A. Broom and the St. Tammany Parish Sheriff’s Office, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 393 So.2d 334.

Denied.


text:
    Lewis MOHR v. Jacqueline JENKINS et al.
    No. 81-C-0499.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Lewis Mohr, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 245.

Denied.

CALOGERO, J., would grant the writ.


text:
    UNITED BRIDGE CO., INC. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-0494.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re United Bridge Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 319.

Denied.

LEMMON, J., would grant the writ.


text:
    Louis H. FAXON v. ALBERT H. HART CORPORATION et al.
    No. 81-C-0493.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Albert H. Hart Corporation, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. East Baton Rouge Parish. 393 So.2d 237.

Writ denied. The result is correct.


text:
    Nick PARRINO, Jr. and Mary Parrino v. Debra Hess PARRINO.
    No. 81-C-0485.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Debra Hess Parrino, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 761.

Denied.


text:
    John C. THIBODEAUX v. Alex OLIVIER and Fireman’s Fund Insurance Company and Commercial Union Insurance Company.
    No. 81-C-0469.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re John C. Thibodeaux, applying for certiorari or writ of review to the Court of Appeal, Third Circuit. Parish of St. Landry. 394 So.2d 684.

Denied.

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


text:
    LESON CHEVROLET COMPANY, INC. v. Donald TRAPP.
    No. 81-C-0459.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Donald Trapp, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 391 So.2d 1371.

Denied.

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


text:
    E. W. JOHNSON v. FORD LIFE INSURANCE CO., et al.
    No. 81-C-0456.
    Supreme Court of Louisiana.
    March 27, 1981.
   ' In re E. W. Johnson, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. 393 So.2d 275.

Denied.


text:
    Buhlar O. PRATS v. Louise H. MOFFETT et al.
    No. 81-C-0445.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Louise H. Moffett and United Services Automobile Association, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 391 So.2d 1299.

Denied.

MARCUS, J., would grant the writ.


text:
    George S. GUION, Jr. v. STATE of Louisiana DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-0444.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re State of Louisiana Department of Transportation and Development, applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 391 So.2d 1367.

Denied.

MARCUS, J., would grant the writ.


text:
    Shirley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana v. FIRST COMMERCE CORPORATION.
    No. 81-C-0392.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Shirley McNamara, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 392 So.2d 467.

Denied.

DENNIS, J., would grant the writ.

LEMMON, J., recused.


text:
    AMERICAN FIDELITY FIRE INSURANCE COMPANY v. PAVIA-BYRNE ENGINEERING CORPORATION et al.
    No. 81-C-0387.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Pavia-Byrne Engineering Corp., and Edgar H. Pavia, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Lincoln. 393 So.2d 830.

Denied.

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


text:
    LOUISIANA DIVISION OF the HORSEMAN’S BENEVOLENT AND PROTECTIVE ASSOCIATION et al. v. LOUISIANA STATE RACING COMMISSION et al.
    No. 81-C-0418.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Louisiana Division of the Horseman’s Benevolent and Protective Association, et al., applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 391 So.2d 589.

Not considered. Not timely filed.


text:
    Helen SCIACCA v. Louis POLIZZI, M. D. and Julius Schmid Company a/k/a Schmid Laboratories, Inc.
    No. 81-C-0533.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Louis Polizzi, M. D., applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 394 So.2d 1319.

Granted.


text:
    TERREBONNE PARISH POLICE JURY v. Carroll MATHERNE.
    No. 81-C-0531.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Carroll Matherne, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. 394 So.2d 1302.

Granted.


author: DIXON, C. J.,

text:
    Ernest E. VAPPIE v. AMERICAN HOME ASSURANCE COMPANY.
    No. 81-C-0405.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Ernest E. Vappie, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 392 So.2d 188.

Denied.

DIXON, C. J.,

concurs in the denial. The Court of Appeal reached the right conclusion because the policy provision terminated the benefits not because the insurance was terminated.

LEMMON, J., would grant the writ.


text:
    L. D. BRINKMAN & COMPANY, INC. v. C & J CARPETS, INC., et al.
    No. 81-C-0447.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re L. D. Brinkman & Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 392 So.2d 174.

Denied.

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


text:
    Clarence J. MAHL, Jr. v. BOARD OF TRUSTEES OF the FIRE FIGHTERS PENSION AND RELIEF FUND FOR the CITY OF NEW ORLEANS.
    No. 66068.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Clarence J. Mahl, Jr., applying for reconsideration of denied writ of November 30, 1979 and denied reconsideration of February 15, 1980, Court of Appeal, Fourth Circuit. Parish of Orleans. 376 So.2d 581.

Reconsideration denied.


text:
    John Wayne ERWIN v. EXCELLO CORP., et al.
    No. 80-C-2282.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re The Great Atlantic & Pacific Tea Company, Inc., et al., applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. -387 So.2d 1288.

Writ denied.


text:
    Paula K. COBB v. COLEMAN OLDSMOBILE, INC.
    No. 81-C-0561.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Paula K. Cobb, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 402.

Denied.


text:
    BAKER BANK & TRUST COMPANY v. Donald R. CHAUSSE et al.
    NO. 81-C-0549.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Donald R Chausse, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 261.

Denied.

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


text:
    Lawrence Lo BRONO et al. v. GENE DUCOTE VOLKSWAGEN, INC., et al.
    No. 81-C-0412.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Cumis Insurance Society, Inc., and Lawrence Lo Brono, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 391 So.2d 1360.

Writ granted.

WATSON, J., recused.


text:
    Edward McGUIRE, Jr. v. Katherine D. HONEYCUTT; James A. Welch; and the Military Department, State of Louisiana.
    No. 80-C-2462.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Edward McGuire, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 387 So.2d 674.

Denied; the result is correct.


text:
    Salvador VILARDO v. Jacqueline MAJORS.
    No. 81-C-0548.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Salvador Vilardo, applying for cer-tiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. No. 13779.

Denied.


text:
    STATE of Louisiana ex rel., Bobby D. WELLS v. Frank C. BLACKBURN, Warden et al.
    No. 81-KH-0448.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Bobby D. Wells, applying for remedial writs. Parish of Jefferson. No. 74346.

Writ denied.


text:
    STATE of Louisiana ex rel., Donald D. BLACKWELL v. CLERK OF COURT, 1ST JUDICIAL DISTRICT COURT, PARISH OF CADDO.
    No. 81-KH-0467.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Donald D. Blackwell, applying for writs of mandamus. Parish of Caddo. No. 113822.

Granted. Trial judge is ordered to furnish relator with copy of Boykin transcript; otherwise denied.


text:
    SUCCESSION OF Walter Lincoln MURRELL.
    No. 81-C-0831.
    Supreme Court of Louisiana.
    March 30, 1981.
   In re Georgialene Arceneaux, Nettie Byrd Shelton and Walter Bennett, applying for petition to remove defense counsel and in the alternative, application for writs of certiorari or review and stay order. Parish of Rapides. No. 18372.

Granted and remanded to the trial court to rule on motion to disqualify and remove defense counsel (DeWitt Methvin) as counsel of record.


text:
    STATE of Louisiana v. Elbert A. COBB.
    No. 81-K-0842.
    Supreme Court of Louisiana.
    March 30, 1981.
   In re Elbert A. Cobb, applying for remedial writs. Parish of Jefferson. No. 79-1870.

Out of time appeal granted; defendant is ordered re-released on the $15,000.00 appeal bond previously posted.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. LULING INDUSTRIAL PARK, INC.
    No. 81-C-0846.
    Supreme Court of Louisiana.
    March 30, 1981.
   In re Luling Industrial Park, Inc., applying for supervisory and/or remedial writs and stay order. Parish of St. Charles. No. 14633.

Granted. The judgment of the Court of Appeal is reversed and the judgment of the district court is reinstated.

MARCUS and BLANCHE, JJ., would deny the writ.


text:
    Georgialene ARCENEAUX et al. v. GUARANTY BANK AND TRUST COMPANY et al. (Succession of Walter Lincoln Murrell).
    No. 81-C-0830.
    Supreme Court of Louisiana.
    March 30, 1981.
   In re Georgialene Arceneaux, Nettie Byrd Shelton and Walter Bennett, applying for writs of certiorari or review, and stay order. Parish of Rapides. No. 18372.

Denied.


text:
    STATE of Louisiana, ex rel. David S. SMITH v. STATE of Louisiana.
    No. 81-KH-0888.
    Supreme Court of Louisiana.
    April 3, 1981.
   In re David S. Smith, applying for writ of certiorari. Parish of Jefferson.

Writ denied. Trial judge has advised this court that previous order denying bail will be rescinded and new order issued fixing bail hearing for April 7, 1981.


text:
    STATE of Louisiana v. Colin CLARK.
    No. 81-K-0881.
    Supreme Court of Louisiana.
    April 3, 1981.
   In re Colin Clark, applying for stay of execution and for oral argument, and for supervisory and other writs. Parish of East Baton Rouge. No. 8-78-742.

Denied.

DIXON, C. J., and CALOGERO, J. would stay the execution and order an evidentiary hearing on the factual allegations concerning the intemperance of counsel.

DENNIS, J., not present.


text:
    Etna STAFFORD v. CITY OF BATON ROUGE, and Parish of East Baton Rouge.
    No. 81-C-0556.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Etna Stafford, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13749.

Granted.


text:
    STATE of Louisiana v. Omar Scott CRAWFORD.
    No. 81-K-0715.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Omar Scott Crawford, applying for writs of certiorari, prohibition and mandamus and stay order. Parish of De Soto. Nos. 42860 and 42861.

Writ granted.


text:
    STATE of Louisiana v. Willie CLAY.
    No. 81-K-0815.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Willie Clay, applying for writs of certiorari, mandamus and stay order. Parish of St. Martin.

Granted. The trial judge is directed to enter order of appeal.


text:
    STATE of Louisiana ex rel. Edward ADAMS aka Edward Bledsoe v. Honorable Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 80-K-1457.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Edward Adams aka Edward Bled-soe, applying for reconsideration of denied writ of October 24,1980. Parish of Orleans. No. 250-426.

Denied; relator’s application was and is moot. His conviction and sentence were affirmed on appeal in No. 80-KA-1412 on November 19, 1980.


text:
    STATE of Louisiana ex rel., John FULFORD, and All Inmates At Louisiana State Penitentiary In Class Action v. Frank BLACKBURN, Warden & C. Paul Phelps, Secretary of Dept. of Corrections.
    No. 80-KH-1568.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re John Fulford, et al., applying for writs of certiorari and remedial and motion to proceed in forma pauperis. Parish of East Baton Rouge. No. 230232, Div. I.

Writ denied.


text:
    STATE of Louisiana v. Glenn LEMOINE.
    No. 81-K-0889.
    Supreme Court of Louisiana.
    April 7, 1981.
    As Amended April 8, 1981.
   In re Glenn Lemoine, applying for writs of certiorari, prohibition, mandamus, supervisory and review and for stay order. Parish of Grant. No. 36946.

Granted. Relator is ordered released on bail pending further action by this Court.


author: STOKER, Judge.

text:
    J. H. NEEDHAM, Plaintiff-Appellee, v. Mark DEMETTE, Defendant-Appellant.
    No. 8271.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 13, 1981.
    Dragon & Kellner, Robert A. Dragon, Jr., Lafayette, for plaintiff-appellee.
    Marcia Finkelstein, Acadiana Legal Services, Lafayette, for defendant-appellant.
    Before STOKER, GUIDRY and DOU-CET, JJ.
   STOKER, Judge.

MOTION TO REMAND

The plaintiff-appellee, J. H. Needham, moves to remand this suit to the trial court to enable him to traverse the right of the defendant-appellant, Mark Demette, to proceed with his appeal in forma pauperis. The motion is unopposed. We remand.

On October 29,1980, the appellant moved for and was granted an appeal in forma pauperis. The appellee believes the appellant is able to pay the costs incurred in the suit and seeks to traverse the appellant’s right to proceed in forma pauperis. The appellee filed a motion to remand on January 14, 1981.

The jurisprudence is well settled that where a devolutive appeal had been taken in forma pauperis without allowing the appellee sufficient time in which to traverse the affidavits of poverty, the appellate court may, upon timely application therefore, remand the cause to give the appellee the opportunity to do so. Oldham v. Hoover, 140 So.2d 417 (La.App. 1st Cir., 1962).

Under the facts of this case, the movers have had an insufficient opportunity to traverse in the district court, and thus are clearly entitled to an opportunity to do so. Ross v. Hatchette, 247 So.2d 399 (La.App. 3rd Cir., 1971); Darby v. Travelers Ins. Company, 272 So.2d 798 (La.App. 3rd Cir., 1973); Shepard v. Shepard, 349 So.2d 1026 (La.App. 3rd Cir., 1977).

The appeal is hereby remanded to the trial court for the purpose of allowing the mover to traverse the appellant’s right to proceed with his appeal in forma pauperis.

APPEAL REMANDED.


author: LOTTINGER, Judge.

text:
    Ridgely CANTY, Individually and as Administrator of Minor Children Sharon Elizabeth Canty and Shane Michael Canty and Christina LeCompte Canty v. TERREBONNE PARISH POLICE JURY, Terrebonne Parish, Louisiana and City of Houma, Houma, Louisiana.
    No. 13870.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 1981.
    Rehearing Denied May 12, 1981.
    Writ Denied June 22,1981.

      Gordon Hamner, Houma, for plaintiff and appellant.
    Philip Henderson, Houma, for defendant and appellee Terrebonne Parish Police Jury.
    A. Deutsche O’Neal, Sr., Houma, for defendant and appellee City of Houma.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by a Terrebonne Parish property owner for loss of land and house damage allegedly resulting from the defendant’s dredging of a drainage canal which flows through the plaintiff’s property. The plaintiff claims the dredging pierced a firm clay soil layer in the canal and caused loose silty soil beneath the surface of his property to ooze into the canal. His land subsequently subsided and his house sunk, causing cracks in the walls and floors and requiring him to repeatedly jack up the foundation.

Ridgely Canty originally instituted the suit against the Terrebonne Parish Police Jury and the City of Houma, alleging that they were jointly responsible for his damages. Later, the city was dismissed without prejudice from the litigation but the suit against the police jury went forward. From a trial court judgment finding á lack of causation and relieving the police jury of liability, the plaintiff brought this appeal.

A number of issues have been raised by the plaintiff in his specification of errors but all of them center around questions of causation, negligence and strict liability.

THE FACTS

Canty and his wife purchased a house and lot at 308 Carolyn Avenue in Houma, Louisiana in August, 1976. The eastern edge of the lot was near the western bank of Bayou Sale, a small ditch-like canal which flows through part of Houma. Canty’s title to the property and a survey prepared in connection with his acquisition show that he owns that portion of Bayou Sale which traverses his property. Canty testified that, except for a few small cracks in the driveway and a leaning support pillar at one corner of the house, the property was in good shape at the time of acquisition. The house and land were level.

Prior to Canty’s acquisition, somewhere in the mid-1960’s, the City of Houma apparently dredged and widened Bayou Sale to enhance drainage in the area. The widening allegedly caused Canty’s ancestor in title to suffer a sudden loss of land along the bayou bank, and the city thereafter built a bulkhead to prevent further erosion. The bulkhead purportedly accomplished its intended purpose until late 1977 and early 1978, when the loss of land complained of in this suit allegedly began to occur.

In the early 1970’s the Terrebonne Parish Police Jury began constructing forced drainage projects in many areas of the parish to relieve persistent flooding problems. One of those projects, Project 1-5, was built around the area where Canty’s residence is located. Bayou Sale is used as the main drainage artery through which runoff flood and rain water in the Project 1-5 area is collected. Forced drainage Project 1-5 was completed and accepted by the police jury on April 24, 1974. It is maintained in conjunction with the City of Houma. It was designed and built to accommodate about 3,500 acres of land in the east Houma area. Five 48 inch pumps are used to pump rain and flood waters out of the area.

As part of its maintenance of the Project 1-5 system, the Terrebonne Parish Police Jury let a contract in August, 1974, for dredging or cleaning of Bayou Sale. The purpose of the contract was to remove silt and debris which had collected in the canal and had hindered efficient operation of the forced drainage system. Testimony at trial was conflicting as to whether Bayou Sale near Canty’s residence was actually dredged or merely swept clean. An engineer representing the firm which designed the sweep out and the contractor who performed the job testified that the canal near Canty’s residence was merely swept out— only loose silt on the bottom and trash and debris were removed. There was no dredging of any solid soils, they claimed. Their testimony indicated that an oral change order resulted in the clean out near Canty’s residence in lieu of the dredging called for by the plans.and specifications.

However, Charles Hair, a geotechnical engineer who was qualified as an expert for the plaintiff, testified that the canal had indeed been dredged and that the dredging pierced a layer of thick clay soil on the bottom of the bayou. When the clay layer was dredged away, loose silt and soil which underlay Canty’s residence began oozing into the bayou through the action of ground water and the weight of the land on top of the silty soil. When the soil flowed into the bayou, the waters which flowed through the bayou entrained the soil and carried it away, the expert testified. As the soil oozed out, the land upon which Canty’s residence was situated began to subside. Canty testified he constructed a fence about 8 feet from the bayou bank when he first acquired the property, but only a few feet of land remained between the fence and the bayou at the time of trial. Canty said the fence now leans towards the bayou and he had to tie it back to prevent it from falling into the bayou. He also claimed that the land behind the bulkhead which had been built by the city had subsided about 10 inches. Trees which had grown near the bayou bank also began leaning towards the canal.

Canty’s expert said his opinion that the bayou had actually been dredged was based on the fact that engineering charts depicting the bayou prior to the dredging showed the bayou at a depth above that at which it was at the time of trial. Also, the bayou depth at the time of trial was almost exactly the depth which the engineers had planned for the bayou to be when the dredging contract was completed. The expert said the effect of the dredging was like uncapping a tube of toothpaste. When the cap of the tube (the firm clay layer) was removed, the toothpaste (the silt beneath Canty’s residence) was squeezed out. The expert also said that while it is possible that another clean out at another time or the installation of culverts under a nearby street might have caused Canty’s problems, he believed the 1974 dredging was the triggering mechanism.

A recent engineering report prepared for the City of Houma and introduced into evidence states that the drainage capacity of Bayou Sale is “severely hampered by such problems as siltation due to eroding banks, trash being thrown into the channel, clogged trash screens and other related problems.” Testimony at trial showed that the police jury, after being informed of Canty’s problems, put up a trash screen to help prevent a backwash effect which some parish officials blamed for Canty’s problems.

A former occupant of the house testified that there did not appear to be any difference as to the amount and level of the property in 1976 compared with the property as it existed at the time of trial. She also testified that her father, who owned the house before Canty, told Canty how to jack the house up and also told Canty that he had jacked the house up in the past. Canty generally denied these statements, although he acknowledged that the former owner may have lifted the house on one occasion to straighten the corner foundation on the northern side of the house.

TRIAL COURT’S FINDINGS

In written reasons for judgment, the trial court found as a fact that the dredging operation performed by the jury’s contractor in 1974 was actually a cleanout of Bayou Sale. The court found that an. oral change order had changed the contract from a dredging operation to a cleanout. In regard to the plaintiff’s expert’s testimony, the court stated that the expert “very carefully noted” that the subsidence and erosion could have begun prior to the 1974 cleanout, and could have been caused by the placement of culverts beneath the nearby street. While the sweeping or cleaning out of the bayou may have accelerated the erosion problem by increasing the flow of water in the bayou, the trial judge held that the increased erosion “[cjertainly ... was not a foreseeable consequence.” The judge concluded that the plaintiff failed to prove a causative connection between the jury’s operation and the plaintiff’s damages.

SPECIFICATIONS OF ERRORS

The plaintiff claims on appeal that the trial court erred: (1) in finding that the police jury made an oral change order in the contract for the dredging of Bayou Sale; (2) in finding that the jury’s cleanout operation was not the cause of the subsidence; (3) in finding that the jury was not negligent or not liable under a theory of strict liability; and (4) in denying the plaintiff the right to call certain purported agents of the police jury under cross examination.

CAUSATION

Whether the plaintiff seeks recovery under a negligence or strict liability theory, he must prove that the negligent act or defect complained of was a cause-in-fact of the injury.

Conduct is a cause-in-fact of an injury or damage if it is a substantial factor in bringing about the harm. Follins v. Barrow, 354 So.2d 609 (La.App.1st Cir. 1977), writ denied 356 So.2d 434 (La.1978); and Hall v. State through Department of Highways, 231 So.2d 169 (La.App.3rd Cir. 1968), writ refused 252 La. 959, 215 So.2d 128 (1968). In the instant case we are of the opinion that the depth of Bayou Sale was a substantial factor in bringing about the rapid subsidence which took place; thus, it was a cause-in-fact.

It certainly could be argued that subsidence was already taking place at an unnoticeable rate because culverts under a nearby roadway located at a corner of the property had previously pierced the clay layer. However, any loss of the substrata silty material caused by this piercing of the clay layer did not result in any appreciable subsidence. We conclude that the piercing of the clay layer near Canty’s residence, either by man or nature, was a cause-in-fact of the rapid subsidence which took place. The trial judge was clearly wrong in finding a lack of causal connection between the depth of the bayou and the subsidence on Canty’s property. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

NEGLIGENCE

Conduct is negligent if it “falls below the standard established by law for the protection of others against unreasonable risk of harm. It is a departure from the conduct expectable of a reasonably prudent man under like circumstances.” Pence v. Ketchum, 326 So.2d 831, 835 (La.1976). Although the result in Pence has been seriously questioned, Thrasher v. Leggett, 373 So.2d 494 (La.1979), the court’s statement of what constitutes negligent conduct remains the law. See also Prosser, Law of Torts, Section 31, page 145 (4th Ed.1971).

We are of the opinion that the police jury’s conduct in cleaning or dredging the drainage artery was not negligent. The record is void of any evidence of rapid subsidence in the area prior to the dredging which would or should have put the jury and its agents on notice that such a condition might occur if the bayou was cleaned or dredged. There was no indication of a soft layer of silt beneath the firm clay layer which encased the bayou and a part of Canty’s property. The jury and its agents undertook the dredging operation in a reasonable manner and caused no damage which they reasonably could have foreseen. The duty of the jury, its contractor and its engineer was to use reasonable care in designing and implementing the dredging or cleaning operation. Based on the evidence in the record we conclude that there was no breach of a duty, and therefore no negligent conduct.

STRICT LIABILITY

Plaintiff also sued under a strict liability theory, citing La.C.C. art. 667. In a request for supplemental briefs this court expanded the strict liability inquiry to La.C.C. art. 2317.

To succeed in an Article 2317 action, the plaintiff must prove that a “thing” within the care or control of the defendant caused damage because of a defect which created an unreasonable risk of harm to another. Loescher v. Parr, 324 So.2d 441 (La.1975). The immovable drainage ditch called Bayou Sale is certainly a “thing,” La.C.C. arts. 448, 450 and 462; and, as a drainage artery, it is arguably under the care or control of the Police Jury.

However, we do not find that this drainage artery contained a defect which created an unreasonable risk of harm to another.

We disagree with the theory expressed in Marquez v. City Stores Company, 371 So.2d 810 (La.1979), that an unusual occurrence in and of itself is proof of a defect. See Stablier v. City of Baton Rouge and Parish of East Baton Rouge, 393 So.2d 148 (La.App.1 Cir. 1980). In any event, it is not unusual for land to subside in south Louisiana where substrata of silty or spongy material are known to exist.

Even if we conceded that Bayou Sale is defective under the coverage of Ar-tide 2317, we would still conclude that the defendant bears no legal responsibility for the subsidence and resulting damage to the plaintiff. It is clear that substrata silty material existed under the plaintiff’s property. Only through the simultaneous occurrence of two factors—the depth of the drainage artery and the pool of substrata silty material underlying plaintiff’s property—did the subsidence occur. Stated another way, the artery alone did not cause the subsidence. The plaintiff’s property, over which he had control, played an equal if not greater part in the resulting subsidence. If there was a defect in the bayou, there was also a defect in the plaintiff’s property.

If a damaged thing in the plaintiff’s care or custody is itself defective and if the resulting harm would not have occurred without the defect in the plaintiff’s thing, then the damage which is caused substantially by the plaintiff’s defective thing must be borne by the plaintiff. This defense—that the plaintiff’s thing itself was defective and was substantially to blame for its own deterioration—is somewhat analogous to the defense of victim fault in the sense that the primary harm-causing instrumentality was under the victim’s care or custody, and the victim should therefore bear the loss incurred because of the defective instrumentality over which he had control.

The three defenses to an Article 2317 strict liability suit, as outlined in Loescher v. Parr, supra, are fault of the victim, fault of a third person or irresistible force. These defenses, along with the defense of defect in the victim’s property, are available whether the plaintiff sues under Article 2317 or Article 667. Assumption of the risk has been held to be a defense in all strict liability cases. Daniel v. Cambridge Mutual Fire Insurance Company, Andover, Mass., 368 So.2d 810 (La.App.2nd Cir. 1979) writ denied La., 369 So.2d 1063; Romero v. Town of Welsh, 370 So.2d 1286 (La.App.3d Cir. 1979). So should the other strict liability defenses.

CROSS EXAMINATION OF POLICE JURY AGENTS

Plaintiff argues that the trial judge erred when he disallowed the plaintiff to present testimony under cross examination of Stanley Marchand, Mark Rogers, Emmett Pres-tenback, and J. David Bergeron. Marc-hand, Rogers and Bergeron were employees of the engineering firm under contract with the police jury to design and supervise the dredging operation. Prestenback was the owner of the firm with which the jury contracted to do the work.

The plaintiff argues that La.C.C.P. art. 1634 allows an adverse party to call “any party or his representative” on cross examination, and that “ ‘representative’ * * * means an officer, agent or employee having supervision or knowledge of the matter in controversy, in whole or in part, whether or not he is in the employ of or connected with the party at the time testimony is taken.”

When the trial judge rules that testimony of a witness is inadmissible, an offer of proof, La.C.C.P. art. 1636, can be made. In Hopkins v. Department of Highways, 350 So.2d 1271 (La.App.3rd Cir. 1977), the court held that it was error to refuse an offer of proof of testimony from a disqualified witness. See also Liberty Mutual Insurance Company v. Bryant, 191 So.2d 747 (La.App.2nd Cir. 1966), writ refused 250 La. 16, 193 So.2d 528 (1967). Thus, an offer of proof would be proper when the trial judge refuses to allow the testimony of a witness called under cross examination, and it would be error to deny such a proffer. However, no offer of proof was attempted in this case. Since plaintiff failed to avail himself of the opportunity to make an offer of proof, as he is entitled to do under La.C.C.P. art. 1636, he cannot complain on appeal. Carroll v. Guillot, 337 So.2d 310 (La.App.3rd Cir. 1976).

ORAL CHANGE ORDER

It is not the legality of the oral change order to a public works contract that is in question, but rather what work was done under the contract. We find no error in the trial judge’s conclusion that the contract merely swept clean Bayou Sale rather than dredging same.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

EDWARDS, J., concurs for the reasons assigned by the trial judge.

      . Ridgely Canty sued individually and as administrator of his three minor children. His wife, Christina LeCompte Canty, was also named as a plaintiff. We will refer to Canty as plaintiff.

      . “Art. 667. Limitations on use of property “Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

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