text:
    Mrs. Viola VANDERDOES, (Deceased) v. OCHSNER CLINIC, Paul T. DeCamp, M.D., John Doe, M.D., Jane Doe, M.D., and any undisclosed insurance company.
    No. 66852.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Robert S. Vanderdoes applying for writ of certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 10455.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    SUCCESSION of Elsie BLOCK, widow of Dr. George S. Bel.
    No. 66858.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Emily Dunn, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of. Orleans. No. 10,025.

Writ denied.


text:
    STATE of Louisiana v. Lloyd B. JOHNSON.
    No. 66865.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Lloyd B. Johnson, applying for writ of certiorari. Parish of St. John the Baptist. No. 1730.

Writ denied.


text:
    STATE of Louisiana v. Jeffery G. BROWN, Terry M. Carr and David S. Hollowell.
    No. 66875.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re State of Louisiana, through the District Attorney, James Lynn Davis, applying for writs of certiorari, mandamus, and prohibition. Parish of DeSoto. No. 40,114.

Denied.

MARCUS, J., would grant the writ.


text:
    H. L. SMITH, INC. v. Honorable Thomas J. LeBLANC, Clerk of Court, Parish of West Baton Rouge, and Metal Service Corp.
    No. 66877.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Metal Service Corp., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of West Baton Rouge. No. 13,066.

Writ denied.


author: DIXON, C. J.,

text:
    CITY OF BATON ROUGE v. Archie PERRY.
    No. 66878.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Archie Perry, applying for writ of review. Parish of East Baton- Rouge. City Court, T-69323.

Writ denied.

DIXON, C. J.,

dissents. This defendant is entitled by law to an appeal on the record. He did not get it. Half the record was not transcribed. He is entitled to a new trial.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Jeffery BERTRAND.
    No. 66879.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Jeffery Bertrand, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Vermilion. No. 79-T-253.

Writ denied.


text:
    STATE of Louisiana v. Frank C. FEEBACK and Irma Jean Wilhite.
    No. 66883.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Frank C. Feeback and Irma Jean Wilhite, applying for writs of certiorari, prohibition and mandamus. Parish of Oua-chita. Nos. M:41470 and 38942.

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


text:
    STATE of Louisiana ex rel. Warren BATISTE v. Sheriff Charles C. FOTI, Orleans Criminal Judicial District Court.
    No. 66916.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Warren Batiste, applying for remedial writs. Parish of Orleans. No. 266-727.

Writ denied.


text:
    STATE of Louisiana v. David LOLLAR.
    No. 65893.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re State of Louisiana, through the District Attorney, Ossie Brown, applying for supervisory writs. Parish of East Baton Rouge. Number unknown.

Granted. Record ordered lodged as an appeal, see La.Const. Art. 5, § 5(D)(1) (1974).


text:
    STATE of Louisiana ex rel. Clarence BRENTLY v. Hayden DEES, Warden/Dixon Correctional Institution and C. Paul Phelps, Secretary/Louisiana Department of Corrections.
    No. 65253/65315.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Clarence Brently, applying for writ of certiorari. Parish of East Baton Rouge. No. 222-740.

Granted.


text:
    STATE of Louisiana v. Charlie F. LINDSAY.
    No. 66872.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Charlie F. Lindsay, applying for writs of certiorari, prohibition, and mandamus. Parish of St. Tammany. No. 67,637.

Writ granted.


text:
    STATE of Louisiana ex rel. Werner OBLETON, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66278.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Werner Obleton, Jr., applying for remedial writs. Parish of Jefferson. No. 74-939.

Granted. The sentence imposed without a lawyer is vacated and the case is remanded for resentencing with the assistance of defendant’s lawyer. See State v. White, 325 So.2d 584 (La.1976).


text:
    STATE of Louisiana v. Ricky D. PERRY.
    No. 66896.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Ricky D. Perry, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. No. 104,593.

Denied. This application is denied because the record before us does not disclose reasonable grounds to doubt the mental capacity to proceed. C.Cr.P. 643.

DENNIS, J., concurs because of insufficient showing to satisfy grant.


text:
    In the Matter of L. A. “Red” LLOYD, Tommy Huff, Camille Adam Gomez, Plaquemines Parish Commission Council, Gerald D. Kimble, Stephen C. Braud, Nick Jackson and Robert McBride.
    No. 66886.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re L. A. “Red” Lloyd et al., applying for writs of certiorari, mandamus prohibition and stay order. Parish of Plaque-mines. Nos. 56-818, 57,373, 57,449, 57-450, 57-478, 57,479.

Granted in part; denied in part. Assignments one (1) through three (3) have no merit. As to assignment number four (4) (contempt), inasmuch as there was no order for movers to appear on February 14th, merely a fixing of a hearing on the motion to quash, the judge’s order directing movers to show cause is set aside.


text:
    In the Matter of L. A. “Red” LLOYD, Tommy Huff, Camille Adam Gomez, Plaquemines Parish Commission Council, Gerald D. Kimble, Stephen C. Braud, and Nick Jackson and Robert McBride.
    No. 66951.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re James C. Hoffman applying for writs of certiorari, mandamus and prohibition and/or review. Parish of Plaquemines.

Granted in part; denied in part. See order in 66,886.


text:
    STATE of Louisiana ex rel. Douglas Ray LEVERETT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65830.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Judge Robert M. Fleming, 16th Judicial District Court, applying for reconsideration. Parish of St. Mary. No. 83,819.

Application for reconsideration denied. It is ordered that hearing previously ordered be held forthwith.

delaHOUSSAYE, J., recused.


text:
    STATE of Louisiana v. Willie GREEN.
    No. 66457.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Willie Green applying for remedial writ. Orleans Parish. No. 251-453.

Not considered. Relator must first file with district court.


text:
    STATE of Louisiana ex rel. Bobby Wayne FALL v. 27TH JUDICIAL DISTRICT COURT.
    No. 66530.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Bobby Wayne Fall, applying for remedial writs. Parish of St. Landry. Number unknown.

Not considered. Relator must first file his application for post-conviction relief in the district court.


text:
    Stephen PADELEWSKI v. Judge Lawrence CHEHARDY; Jim Garrison, Judge; and John T. Hood, Jr., Judge, 4th Circuit Court of Appeal.
    No. 66674.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Stephen Padelewski, applying for remedial writs. Parish of Orleans. No. 76-14297.

Not considered.


text:
    STATE of Louisiana ex rel. Mose MURRAY v. STATE of Louisiana.
    No. 66741.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Mose Murray, applying for writ of habeas corpus. Parish of Orleans. No. 262-884.

Not considered. Relator must first file his application for post conviction relief in the district court.


text:
    STATE of Louisiana ex rel. Billy Ray SELF v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 65750.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Billy Ray Self, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 1-73-2965.

Denied.

DIXON, C. J., and CALOGERO and DENNIS, JJ., dissent.


text:
    STATE of Louisiana ex rel. Lloyd DELISLE v. Honorable Judge Israel M. AUGUSTINE, Jr., Criminal Judicial District Court, Parish of Orleans.
    No. 65796.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Lloyd Delisle, applying for writs of mandamus and prohibition. Parish of Orleans. No. 220-866.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Baron A. SMITH v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 65823.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Baron A. Smith, applying for writ of mandamus. Orleans Parish. No. 234-392.

Writ denied.


text:
    STATE of Louisiana ex rel. Willie E. OATIS v. H. J. DEES, Warden, Dixon Correctional Institution.
    No. 66251.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Willie E. Oatis, applying for remedial writs and writ of habeas corpus. Orleans Parish. No. 259-538.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Roynell JOSHUA v. Judge Rudolph BECKER, III, Orleans Criminal Judicial District Court.
    No. 66309.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Roynell Joshua, applying for writ of mandamus. Parish of Orleans. No. 253-212.

Writ denied. The application is moot. The district court has acted.


text:
    STATE of Louisiana v. Ardis ALLEN, III.
    No. 66406.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Ardis Allen, III, applying for writs of certiorari, review and for a stay order. Parish of Webster. No. 46,738.

Denied.


text:
    STATE of Louisiana ex rel. Herman NICHOLS, Jr. v. Warden BLACKBURN, Louisiana State Penitentiary.
    No. 66446.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Herman Nichols, Jr., applying for writs of certiorari, prohibition, mandamus or habeas corpus. Parish of Caddo. No. 110,056.

Writ denied.


text:
    STATE of Louisiana ex rel. George E. HELD v. 15TH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE.
    No. 66449.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re George E. Held, applying for remedial writs. Parish of Lafayette. No. 42-402.

Denied. Moot.


author: DENNIS, J.,

text:
    STATE of Louisiana ex rel. Antonio MELENDEZ v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 66453.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Antonio Melendez applying for writ of habeas corpus. Parish of Ouachita. Number unknown.

Writ denied.

DENNIS, J.,

would transfer to district court for consideration- of a contention of relator here, not yet raised in the district court.


text:
    STATE of Louisiana ex rel. Earnest CULPEPPER and Douglas Coody v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66468.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Earnest Culpepper and Douglas Coody, applying for writ of certiorari. Parish of Winn. No. 18849.

Denied.


text:
    STATE of Louisiana v. Aristile DOMINO.
    No. 66493.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Aristile Domino applying for writ of mandamus. Orleans Parish. Number unknown.

Denied. Moot. Counsel has been appointed to represent defendant on appeal.


text:
    STATE of Louisiana ex rel. Edward BROUSSARD v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66499.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Edward Broussard applying for writ of mandamus. Parish of Jefferson. No. 77-2118.

Writ denied. The application is moot. The district court has acted.


text:
    STATE of Louisiana ex rel. Ronald BRAUD v. STATE of Louisiana.
    No. 66503.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Ronald Braud applying for remedial writ. Orleans Parish. No. 268-294.

Denied.


text:
    STATE of Louisiana ex rel. Joseph D. WILLIAMS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66505.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Joseph D. Williams, applying for writ of habeas corpus. Parish of La-fourche. Number unknown.

Writ denied.


text:
    Earl M. HALL, Individually and in his capacity as Administrator of the Estate of his Deceased son, James Ray Hall, and Loner Lee Franks, wife of Earl M. Hall v. Guy LEMIEUX, in his capacity as President of Board of Commissioners of Orleans Levee also known as the Orleans Levee Board; the Board of Commissioners of Orleans Levee; Hartford Accident and Indemnity Co.; Ellis Laborde, in his capacity as Director of New Orleans City Park Improvement Assn.; Fidelity and Guaranty Insurance Co., City of New Orleans; and Travelers Insurance Co.
    No. 66873.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Earl M. Hall, etc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 130.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Allen GAUTHIER, Milburn Baudin, Willie Jackson, Cecil E. Sayes, Carl Dufour, Victor Armand, Stenett J. Bordelon, Kenneth Bordelon, Sam Hewlett, Daniel Lachney, Dyrel Dauzat, Orney Dauzat, Marvin B. Gremillion, Wiley V. Lemoine, Webster Guillot, E. J. Rabalais, Armold Firmin and Edsel G. Rabalais v. BOGARD SEED CO.
    No. 66725.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Allen Gauthier et al., applying for reconsideration of denied writ of February 22, 1980, Third Circuit Court of Appeal. No. 7234. Parish of Avoyelles.

Not considered.


text:
    Stanley J. WEBER, Jr., and Stanley J. Weber, III v. BON MARCHE PHARMACY, INC.
    No. 66871.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Bon Marche Pharmacy, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 520.

Denied.


text:
    Pearl DICKENS v. Osmond J. YOUNG.
    No. 66864.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Osmond J. Young, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 378 So.2d 132.

Denied.


text:
    Vince DUNN, Sr. v. R. T. SUTTON, Commissioner of Conservation, Department of Conservation of the State of Louisiana.
    No. 66692.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Vince Dunn, Sr., applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 378 So.2d 485.

Granted. Considering the absence of a stipulation by the parties to consolidate the trial on the merits for a permanent injunction with the trial of the rule for a preliminary injunction, the matter is remanded to the trial court for further proceedings in accordance with law.


text:
    Mary Francis MULLINS et al. v. STATE of Louisiana et al.
    No. 66854.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Mary Francis Mullins applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 378 So.2d 503.

Writ granted.


text:
    CITY OF NEW ORLEANS v. NEW ORLEANS CANAL et al.
    No. 66860.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re New Orleans Canal et al., applying for certiorari, or writ of review, to' the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 995.

Granted.


text:
    Kathryn TAGLIAFERRI et al. v. WEISS BROS. STORES, INC., d/b/a Gus Mayer Stores, Inc., et al.
    No. 66870.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Kathryn Tagliaferri et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 186.

Writ granted.


text:
    Herrick J. LANE, Jr. v. Katherine Ernst LANE.
    No. 66136.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Katherine E. Lane, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 375 So.2d 660.

Writ denied.

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


text:
    Herrick J. LANE, Jr. v. Katherine Ernest LANE.
    No. 66139.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Herrick J. Lane, Jr., applying for certiorari, or writ of review, to the Court of Appeal; Fourth Circuit. Parish of Orleans. 375 So.2d 660.

Writ denied.

DENNIS, J., would grant.


text:
    J. B. LAHAYE FARMS, INC., et al. v. LOUISIANA DEPARTMENT OF HIGHWAYS et al.
    No. 66839.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Louisiana Department of Transportation and Development, applying for cer-tiorari or writ of review to the Court of Appeal, Third Circuit. Parish of Evangeline. 377 So.2d 1286.

Denied.

MARCUS, J., would grant the writ.


text:
    In re SUCCESSION of Frederick A. ZIIFLE.
    No. 66844.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Mrs. Mireya Ponce, widow of Frederick A. Ziifle, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 378 So.2d 500.

Denied.

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


text:
    Robert S. VANDERDOES et al. v. ST. CLAUDE GENERAL HOSPITAL OF NEW ORLEANS, LTD, Frederick A. Pou, M.D., Insurance Company of North America, ABC and XYZ Insurance Companies, John and Jane Does.
    No. 66851.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Robert S. Vanderdoes applying for writ of certiorari or review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 207.

Denied.


text:
    Mrs. Bertha W. SEIDENBACH, Mrs. Joan Seidenbach Berenson and Dr. Gerald S. Berenson v. CANAL-GALVEZ FROSTOP, INC.
    No. 66863.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Mr. and Mrs. Theo Landos, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 199.

Writ denied.


text:
    Lillian Schon SMALL v. Judge S. Sanford LEVY.
    No. 66862.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Mrs. Lillian Schon Small, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 201.

Writ denied.

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


text:
    STATE of Louisiana v. Melvin LUTCHER.
    No. 67105.
    Supreme Court of Louisiana.
    March 19, 1980.
   In re Melvin Lutcher, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 79-2408.

Denied. Moot.


text:
    STATE of Louisiana v. Darryl MILES.
    No. 67099.
    Supreme Court of Louisiana.
    March 20, 1980.
   In re Darryl Miles, applying for writs of certiorari and mandamus. • Parish of Orleans. No. 268-292.

Denied.


text:
    CITY OF BATON ROUGE v. Jimmy A. SCOTT.
    No. 66768.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Jimmy A. Scott, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. Nos. 17775, 19876 and 19877.

Granted. Sentence is set aside and the matter is hereby remanded to the trial court with instruction to proceed according to law in this contempt proceeding.

WATSON, J., would deny the writ.


text:
    STATE of Louisiana ex rel. Frankie MORRISON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66743.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Frankie Morrison, applying for remedial writs. Orleans Parish. Number unknown.

Granted. The application is transferred to the trial court for action.


text:
    STATE of Louisiana ex rel. Clyde BURNS v. Sheriff Frank HOWARD.
    No. 66716.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Clyde Burns, applying for writ of habeas corpus. Parish of Vernon. Nos. 29,500; 29,503; 29,504; 29,505; 29,515; 29,-516; 29,517; 29,518; 29,519; 29,520.

Writ granted. Relator’s application transferred to district court for action.


text:
    STATE of Louisiana ex rel. Alfred SMITH, Jr. v. Hon. Bernard BAGERT, Judge, Orleans Criminal Judicial District Court, Section “H”.
    No. 66234.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Alfred Smith, applying for writ of mandamus. Parish of Orleans. No.- 257-216.

Granted and transferred to district court for action.


text:
    STATE of Louisiana ex rel. Donald HUMBLE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 66940.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Donald Humble, applying for writ of mandamus. Parish of Plaquemines. No. 45-377.

Granted. It is hereby ordered that Judge Preston Hufft be and he is hereby ordered to consider relator’s writ application and either act thereon in accordance with law or recuse himself and appoint another judge to hear the matter in accordance with law.


text:
    STATE of Louisiana v. Donald BEST.
    No. 65520.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Donald Best, applying for remedial writ. Parish of Orleans. No. 269-398.

Not considered. Informational copies to this Court of filings with the district court were inadvertently filed as an application for writs. Relator must formally seek relief here if he is dissatisfied with trial court rulings.


text:
    Roy HRYHORCHUK v. Roy M. SMITH et al. Roy HRYHORCHUK v. CALCASIEU PARISH POLICE JURY.
    No. 67027.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re State Farm Mutual Automobile Insurance Co., applying for certiorari; or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. Nos. 7267 and 7268.

Granted.


text:
    Roy HYRHORCHUK v. Roy M. SMITH et al. Roy HYRHORCHUK v. CALCASIEU PARISH POLICE JURY et al.
    No. 67021.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Roy M. Smith and State Farm Mutual Automobile Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. Nos. 7267 & 7268.

Granted.


text:
    STATE of Louisiana ex rel. Robert Wayne YOUNG v. PRESIDING JUDGE, 32ND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE.
    No. 66752.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Robert Wayne Young, applying for writ of mandamus. Parish of Terrebonne. Number unknown.

Denied. Moot. District court has acted.


text:
    STATE of Louisiana v. Johnnie MELANCON.
    No. 66625.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re State of Louisiana, applying for writs of certiorari, prohibition mandamus. Parish of Orleans. No. 273-271.

Denied.


text:
    STATE of Louisiana ex rel. Lionel McGRUDER, Jr. v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66321.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Lionel McGruder, Jr., applying for writ of habeas corpus. Parish of Orleans. No. 255-056.

Denied.


text:
    STATE of Louisiana ex rel. Lionel McGruder, Jr. v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66281.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Lionel McGruder, Jr., applying for writs of habeas corpus. Parish of Orleans. No. 255-056.

Denied.


text:
    STATE of Louisiana ex rel. Woodrow BARKSDALE, II v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66174.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Woodrow Barksdale, II, applying for writ of certiorari. Parish of Orleans. No. 254-966.

Denied.

DIXON, C. J., dissents.


text:
    STATE of Louisiana ex rel. John L. WHITE v. 30TH JUDICIAL DISTRICT COURT, VERNON PARISH.
    No. 65074.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re John L. White, applying for writ of mandamus. Vernon Parish. No. 28286A.

Denied. Relator must first make application to the district court for the relief sought.


text:
    STATE of Louisiana v. Bobby R. EAKER.
    No. 65849.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Bobby R. Eaker, applying for writs of review. Parish of Ouachita. No. M— 41842.

Granted. The ruling of the trial court is reversed. R.S. 3:2773. (Last sentence).


text:
    STATE of Louisiana ex rel. Gilbert FRANKLIN v. Warden Roger AUCOIN.
    No. 66735.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Gilbert Franklin, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 7-79-207.

On the showing made, writ denied.


text:
    STATE of Louisiana ex rel. Peter MERCADEL v. Frank J. SHEA, Judge, Criminal District Court, Section G, Parish of Orleans.
    No. 66706.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Peter Mercadel, applying for remedial writs. Parish of Orleans. Number unknown.

Denied. Moot.


text:
    STATE of Louisiana v. Sammy HUFFMAN and Donald Rains.
    No. 66976.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Sammy Huffman and Donald Rains applying for writ of review, to the 32nd Judicial District Court. Parish of Terre-bonne. No. 87,635 and 87,636.

Writ denied. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana ex rel. Edward E. PARR v. Judge Charles A. WARD, Orleans Criminal Judicial District Court.
    No. 66776.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Edward E. Parr, applying for writ of mandamus. Parish of Orleans. No. 257-177.

Denied. •


text:
    Gary Edward TWIDWELL v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE.
    No. 66884.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Gary Edward Twidwell, applying for certiorari, or writ of review to the Court Parish of East of Appeal, First Circuit. Baton Rouge. No. 13,055.

Writ denied.


text:
    STATE of Louisiana v. Henry Lee LEWIS.
    No. 66900.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Henry Lee Lewis, applying for writs of .certiorari, prohibition, mandamus and review. Parish of Morehouse. No. 28,-500.

Writ denied. ■ The District Attorney has dismissed the charge and the application is moot.


text:
    STATE of Louisiana ex rel. Johnny WILSON v. 20TH JUDICIAL DISTRICT COURT, PARISH OF EAST FELICIANA.
    No. 66909.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Johnny Wilson, applying for remedial writs. Parish of East Feliciana. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. Sheriff Charles C. FOTI, Jr., et al., Orleans Parish.
    No. 66926.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re. Garrett Decatur Richardson, applying for remedial writs. No. 267-196.

Denied.


text:
    STATE of Louisiana ex rel. Ulysses ROBINSON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66933.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Ulysses Robinson, applying for motion for stay order. Parish of Orleans. No. 64,469.

Denied.


text:
    STATE of Louisiana v. Hughie P. JERNIGAN.
    No. 66934.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Hughie P. Jernigan, applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. First Parish Court. No. 379-211.

Writ denied.


text:
    STATE of Louisiana v. James TOLES.
    No. 66955.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re State of Louisiana through District Attorney Harry F. Connick. Orleans Parish. No. 273-991.

In view of the trial judge’s expressed willingness to change his ruling relative to particular queries 7 and 8, the state’s application is denied.


text:
    Henrietta FRANKLIN v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.
    No. 66972.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Henrietta Franklin, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. No. 7261. Parish of ‘ Rapides.

Denied.

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


author: WATSON, J.,

text:
    STATE of Louisiana v. Amos DUHART.
    No. 66974.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Amos Duhart, applying for writs of certiorari, prohibition, mandamus and stay ■ order. Parish of Caddo. No. 113,176.

Writ denied.

WATSON, J.,

would grant and remand for pre-sentence investigation and full articulation of reasons for sentence.

BLANCHE, J., would grant for reasons assigned by WATSON, J.


text:
    Donald Ray DEVILLE v. Mr. and Mrs. Lloyd LAGRANGE, Sr.
    No. 66997.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Mr. and Mrs. Lloyd Lagrange, Sr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Martin. 379 So.2d 37.

Granted.


text:
    Succession of Mildred Margaret MILLER.
    No. 66853.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Albertha Screen Meyer- applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 543.

Granted.


text:
    Jo Juanna Wiggins ATTEBERRY v. Winston ATTEBERRY, Jr.
    No. 66989.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Jo Juanna Wiggins Atteberry, applying for certiorari’ or writ of review. Court of Appeal, Third Circuit. Parish of Lafayette. 379 So.2d 18.

Granted and remanded to trial court to determine whether best interest of children required granting custody of children to mother or father.


text:
    Roy HRYHORCHUK v. Roy M. SMITH et al.
    Roy HRYHORCHUK v. CALCASIEU PARISH POLICE JURY.
    No. 67014.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Roy Hryhorchuk applying for cer-tiorari or writ of review, to the Court of Appeal, Third Circuit. Calcasieu Parish, Louisiana. 379 So.2d 281.

Granted.


text:
    Mrs. Madlyn M. Clague, Widow of Harold J. FRISARD, Sr. v. Weldon A. HEISSER.
    No. 66803.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Weldon A. Heisser, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 127.

Denied.

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


text:
    SOUTHERN STATES EQUIPMENT CO., INC. v. JACK LEGETT COMPANY, INC.
    No. 66861.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Jack Legett Company, Inc., applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 379 So.2d 881.

Denied.


text:
    H. R. LOTT et al. v. LOUISIANA POWER & LIGHT CO. et al.
    No. 66869.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re H. R. Lot-t et al, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 377 So.2d 1277.

Denied.

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

WATSON, J., recused.


text:
    Rosalyn F. WEXLER v. A. R. Kaye OCCHIPINTI, d/b/a Cabana Club Apartments and Allstate Ins. Co.
    No. 66885.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re A. R. Kaye Occhipinti, etc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 378 So.2d 1073.

Denied.


text:
    Herbert E. MILLS v. Struby L. DRUMM, Jr., Drumm and Associates, et al.
    No. 66893.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Herbert E. Mills, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 379 So.2d 79.

Denied.


text:
    D. G. MAYES v. LOUISIANA-PACIFIC CORPORATION.
    No. 66897.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Louisiana-Pacific Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 379 So.2d 46.

Denied.


text:
    Donald J. LAUNEY, Jr., et al. v. Lee THOMAS et al.
    No. 66908.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Donald J. Launey, Jr., et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline. ' 379 So.2d 27.

Denied.

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


text:
    Doshie P. AINSWORTH et vir v. BITUMINOUS CASUALTY CORPORATION et al.
    No. 66954.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Doshie F. Ainsworth, et vir, applying for certiorari, or writ of review to the .Court of Appeal, Third Circuit. Parish of Rapides. 379 So.2d 1187.

Denied.


text:
    Geneva McKINNEY v. Larry GREENE et al.
    No. 66959.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re The Sabine Parish School Board, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Sabine. 379 So.2d 69.

Denied.

CALOGERO, J., would grant the writ.


text:
    Eula Cahanin SMITH v. V. V. SHARPE CO., INC., et al.
    No. 66963.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re V. V. Sharpe Co., Inc., and the Travelers Ins. Co. applying for certiorari, or writ of review, to the Court' of Appeal, ■ Third Circuit. Parish of Acadia. 379 So.2d 1216.

Denied.


text:
    Preston J. MAUBOULES v. BROUSSARD RICE MILLS et al.
    _.T No. 66965.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Preston J. Mauboules, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia. 379 So.2d 1196.

Denied.


text:
    JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY v. WILLETT TIMBER CO., INC.
    No. 66971.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re John Deere Industrial Equipment Company, applying for certiorari or writ of review to the Court of Appeal, Third Circuit. Parish of Rapides. 380 So.2d 182.

Denied.


text:
    Doshie P. AINSWORTH et vir v. BITUMINOUS CASUALTY CORPORATION et al.
    No. 66973.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Anita D. Ainsworth, et vir, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 379 So.2d 1187.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    Robert HESSE and James Hesse v. Benjamin BUSBY et al.
    No. 66991.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Robert Hesse and James Hesse v. Benjamin Busby et al., applying for certio-rari or writ of review. Court of Appeal, Third Circuit. Parish of Lafayette. 379 So.2d 25.

Denied. The result is correct.


text:
    James Henry WILLIAMS v. Harry FRIEDMAN, Jr.
    No. 66994.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Harry Friedman, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third' Circuit. Parish of Natchi-toches. 379 So.2d 277.

Denied.

WATSON, J., recused.


text:
    John W. HUMBLE, Sr., et al. v. JOHN W. NUGIER REAL ESTATE AND INSURANCE AGENCY, INC.
    No. 66995.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re John W. Nugier Real Estate & Insurance Agency, Inc., applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Acadia Parish. 380 So.2d 206.

Denied.


text:
    Herbert C. PORTERFIELD v. James A. SPURGEON.
    No. 66996.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Herbert C. Porterfield, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vernon. 379 So.2d 56.

Denied.


text:
    The FISK CORPORATION v. Terry McKENDREE.
    No. 67009.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re The Fisk Corporation, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 379 So.2d 854.

Denied.


text:
    Michael J. MEDUS v. Mathilda T. MEDUS.
    No. 67013.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Mathilda T. Medus, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Lan.dry. 379 So.2d 21.

Denied.


text:
    Geneva McKINNEY v. Larry GREENE et al.
    No. 67020.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Geneva McKinney, applying for cer-tiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Sabine. 379 So.2d 69.

Denied.


text:
    Laura Louise Moga, Wife of Norris Paul DUBROC v. Norris Paul DUBROC.
    No 66902.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Laura Louise Moga, wife of Norris Paul Dubroc, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 380 So.2d 672.

Granted.


text:
    Harry T. BEGG, III, et al. v. The ROMAN CATHOLIC CHURCH OF the ARCHDIOCESE OF NEW ORLEANS et al.
    No. 66941.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Harry T. Begg et al., applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 380 So.2d 666.

Writ denied.


text:
    Lincoln LACOUR Mrs. Doris Robinson Lacour v. Nelson CHATELAIN, William Krause, State Farm Fire & Casualty Company.
    No. 66939.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Mrs. Doris Robinson Lacour et al., applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 380 So.2d 663.

Denied.


text:
    Karen Perkins, Wife of/and Michael PERKINS v. BULK TRANSPORT, INC.
    No. 66917.
    Supreme Court of Louisiana.
    March 21, 1980.
   In re Bulk Transport, Inc., and Joseph Tinson, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 380 So.2d 662.

Denied.


text:
    STATE of Louisiana v. Jeffery La Vance WILLIAMS.
    No. 67133.
    Supreme Court of Louisiana.
    March 24, 1980.
   In re Jeffery La Vance Williams, applying for writ of certiorari and stay order. Parish of Jefferson. No. 152-253.

Writ denied.


text:
    STATE of Louisiana v. James E. LISENBY.
    No. 67131.
    Supreme Court of Louisiana.
    March 24, 1980.
   In re James E. Lisenby, applying for remedial writs and stay order. Parish of LaSalle. Nos. 21,099 and 18,896.

Granted. The ruling of the trial judge revoking the probation which had been previously set for March 24 is reversed and set aside. The trial judge may fix another date for a revocation hearing and proceed according to law. See the following: Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

MARCUS and WATSON, JJ„ would deny the writ.


text:
    STATE of Louisiana v. James E. DOKES.
    No. 67086.
    Supreme Court of Louisiana.
    March 27, 1980.
   In re James E. Dokes, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Tangipahoa. No. 43436.

Denied.

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


text:
    STATE of Louisiana v. Walter MARTIN, Sr.
    No. 67103.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Walter Martin, Sr., applying for writs of certiorari, mandamus and prohibition. Parish of Orleans. No. 272,043.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Michael Slade LEWIS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67102.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Michael Slade Lewis applying for writs of certiorari. Parish of Orleans. No. 262-292.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    CITY OF BATON ROUGE v. Keith D. KEMBER.
    No. 67089.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Keith D. KEMBER, applying for remedial writs. Parish of East Baton Rouge. No. 11719.

Denied.


text:
    STATE of Louisiana v. Ralph HOLMES.
    No. 67084.
    Supreme Court of Louisiana
    March 28, 1980.
   In re State of Louisiana, through the District Attorney, Hon. Ossie Brown, applying for supervisory writs of certiorari, prohibition and mandamus to the Parish of East Baton Rouge. No. 1-79-353 and 354.

Denied.


text:
    STATE of Louisiana ex rel. Roy CLARK, Jr. v. Frank BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67044.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Roy Clark, Jr. applying for remedial writs. Parish of St. Tammany. No. 46,011.

Denied.


text:
    STATE of Louisiana v. Peter L. BOUTTE.
    No. 67041.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Peter L. Boutte applying for writ of review to the 32nd Judicial District Court. Parish of Terrebonne. Nos. 87,652 and 87,653.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Robert LAGARDE.
    No. 67032.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Robert Lagarde applying for writs of certiorari to the Orleans Parish Criminal District Court. No. 271-922.

An out of time appeal is hereby ordered, otherwise the writ is denied.


text:
    STATE of Louisiana v. Vernon Ray CHAPMAN.
    No. 67028.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Vernon Ray Chapman applying for writs of certiorari, prohibition and mandamus, to the 22nd Judicial District Court. St. Tammany Parish. No. 71,385.

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


text:
    STATE of Louisiana v. Bill JONES.
    No. 67001.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Bill Jones, applying for writs of review, mandamus and certiorari. Parish of East Baton Rouge. No. 879-142.

Writ denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Douglas JOHNSON v. STATE of Louisiana.
    No. 66980.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Douglas Johnson, applying for remedial writs. Parish of East Baton Rouge. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. John F. CHAMBERS v. CLERK OF COURT, 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON.
    No. 66907.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re John F. Chambers, applying for writ of review. Parish of Jefferson. No. 78,0093.

Writ denied. Relator not entitled to the relief sought.


text:
    STATE of Louisiana v. Ronald L. MERLO.
    No. 66859.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Ronald L. Merlo, applying for writs of certiorari, prohibition and mandamus and a stay order. Parish of Jefferson. No. 79-43.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana ex rel. Willie JENKINS v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 66602.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Willie Jenkins applying for writ of mandamus. Parish of Orleans. No. 263-763.

Denied. Moot. The district court has acted.


text:
    STATE of Louisiana ex rel. Douglas JOHNSON v. 20TH JUDICIAL DISTRICT COURT, PARISH OF EAST FELICIANA.
    No. 66558.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Douglas Johnson, applying for writ of certiorari, mandamus and prohibition. Parish of East Feliciana. No. 15,421.

Writ denied. An appeal is pending.


text:
    STATE of Louisiana ex rel. Alvin LEWIS v. Edwin A. LOMBARD, Clerk of Criminal District Court.
    No. 66541.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Alvin Lewis applying for remedial ■ writs. Parish of Orleans. No. 270-218.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Myles ALLEN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66534.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Myles Allen, applying for writ of habeas corpus. Ascension Parish. Nos. 26,-095 and 36-66314.

Writ denied.


text:
    STATE of Louisiana ex rel. Larry M. LANDRY v. STATE of Louisiana.
    No. 66532.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Larry M. Landry, applying for writ of habeas corpus. Parish of Orleans. No. 254-451.

Denied.


text:
    STATE of Louisiana ex rel. Bradley SCOTT v. Edwin LOMBARD, Clerk, Criminal District Court, Parish of Orleans.
    No. 66529.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Bradley Scott, applying for writ of mandamus. Orleans Parish. No. 260-851.

Denied. Relator not entitled to relief sought.


text:
    STATE of Louisiana ex rel. George WILLIAMS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66520.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re George Williams applying for writ of habeas corpus. Parish of Terrebonne. No. 78,043.

Denied.


text:
    STATE of Louisiana ex rel. Steven Jerome DREW v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66508.
    Supreme Court of. Louisiana.
    March 28, 1980.
   In re Steven Jerome Drew applying for remedial writs. Parish of Caddo. No. 111—909HC.

Writ denied.


text:
    STATE of Louisiana v. Virgil L. PUGH.
    No. 66388.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Virgil L. Pugh, applying for writs of certiorari, prohibition, and mandamus. Parish of Rapides. No. 189,129.

Writ denied. Moot. Relator has been released from confinement.


text:
    STATE of Louisiana ex rel. Roosevelt McGEE v. Frank C. BLACKBURN, Warden, et al.
    No. 66071.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Roosevelt McGee applying for writ of mandamus. Orleans Parish. No. 253-297.

Denied. Moot. District Court has acted.


text:
    STATE of Louisiana v. Ulysses S. FRANKLIN.
    No. 65763.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Ulysses S. Franklin, applying for remedial writs. Parish of Jefferson. No. 78-1741.

Denied.


author: MARCUS-and WATSON, JJ.,

text:
    STATE of Louisiana v. Jimmy L. DENTON.
    No. 67090.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Jimmy L. Denton, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 80-108.

Writ granted. The ruling of the trial court is reversed and set aside. The trial judge is ordered to set a hearing on the motion for discovery.

MARCUS-and WATSON, JJ.,

concur, being of the opinion that relator should be made to comply with the court’s rules.


text:
    STATE of Louisiana v. Johnnie T. WILSON.
    No. 67075.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Johnnie T. Wilson, applying for writ of certiorari, prohibition, and mandamus. Parish of Plaquemines. No. 51,991.

Granted.


text:
    STATE of Louisiana v. Robert STEELE.
    No. 67039.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 271-963.

Writ granted.


text:
    STATE of Louisiana v. Arnold DYER.
    No. 67030.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition and mandamus to the Criminal District Court of Orleans Parish. No. 274,530.

Writ granted.


text:
    STATE of Louisiana ex rel. Carl SANGER a/k/a James Wilson v. STATE of Louisiana.
    No. 66999.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Carl Sanger, applying for writ of mandamus to the Parish of Caddo. No. 109,527.

Granted. Application transferred to district court for action.


text:
    STATE of Louisiana v. Debra Ann McCALL.
    No. 66899.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Debra Ann McCall applying for writs of certiorari, mandamus and prohibition. Parish of Caddo. No. 106,849.

Writ granted.


text:
    Goldie H. KIZER v. Jack S. BURK.
    No. 66874.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Jack S. Burk applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. No. 13,030. Parish of East Feliciana.

Writ granted.


text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 66465.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re McArthur Johnson, applying for writ of habeas corpus. Bossier Parish. No. 54,874.

Granted; the defendant is granted an evidentiary hearing to establish, if he can, that his plea was based on erroneous information concerning the availability of the death penalty.


text:
    STATE of Louisiana ex rel. Carlton WILLIAMS v. Hon. Rudolph BECKER, III, Judge, Section E, Criminal District Court, Orleans Parish.
    No. 67198.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Carlton Williams applying for writ of certiorari. Parish of Orleans. Number unknown.

Writ denied.


text:
    STATE of Louisiana v. Michael G. FERGUSON.
    No. 66958.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Michael G. Ferguson, applying for supervisory writs. Parish of East Baton Rouge. No. 8-79-12.

Granted. Writ transferred to the trial court with instructions to act on merits of relator’s application. See C.Cr.P. Art. 879.


text:
    Robert THIBODEAUX v. KING-WILKINSON, INC.
    No. 67088.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re King-Wilkinson, Inc., applying for writs of certiorari and review. Parish of St. Landry. No. 77-737-2.

■ Granted and remanded to the Court of Appeal to consider the writ application on the merits. Irreparable injury is the test for appealability of an interlocutory judgment. See C.C.P. Art. 2083 comment (d).


text:
    STATE of Louisiana v. Ellis GUILLOT.
    No. 66334.
    Supreme Court of Louisiana.
    March 28, 1980.
   In re Ellis Guillot, on motion to remand. Orleans Parish. No. 262-375.

Motion to remand is denied. Defendant’s motion for a new trial based on newly discovered evidence was filed more than one year after the verdict or judgment of the trial court. La.Code Crim.P. art. 853. Moreover, we will not consider the motion as an application for post-conviction relief at this time since an appeal is pending. La.Code Crim.P. art. 363. After finality of the appeal, defendant may seek relief from the district court.


author: GULOTTA, Judge. LEMMON, Judge,

text:
    Mrs. Susan J. BRAUNINGER, Individually and as Natural Tutrix of the Estate of Her Minor Child, Chanda Marie Brauninger v. Perry J. DUCOTE, Sr., Mildred Ducote, Perry J. Ducote, Jr., and Old Reliable Fire Insurance Company.
    No. 10412.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1979.
    Rehearing Denied April 18, 1980.
    Montelepre & Montelepre, Philip Monte-lepre, New Orleans, for plaintiff/appellant.
    Christovich & Kearney, C. Edgar Cloutier, New Orleans, for defendants/appellees.
    Before LEMMON, ■ GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Plaintiff appeals from a judgment maintaining “the exception of no right or cause of action.”

In this personal injury suit, plaintiff, individually, and as tutrix of her five year old minor daughter alleges that defendants’ seventeen year old son committed the crime of aggravated rape upon plaintiff’s minor child. The • original petition, directed against the parents of the seventeen year old boy alleges further that the defendants failed to exercise proper supervision, diligence and control over, the activities of their son. According to the petition, plaintiff claims that as a result of the incident it became necessary for her to seek medical treatment for the child for which substantial expenses have been incurred. Damages are sought on behalf of the child for “mental trauma” suffered by the child.

Additionally, damages are sought for “mental anguish, emotional trauma and stress (past, present and future)” suffered by plaintiff individually. Also alleged by plaintiff is the fact that she and the defendants are neighbors and as a result of her criminal complaint against the defendants’ minor son she has “suffered abusive telephone calls, verbal threats against her life and. that of her child . . .” She claims further that she has suffered damage to her home and personal property and has been the object of libelous statements, bribes and extortion in an attempt to persuade her to dismiss the criminal charges. Plaintiff also alleges “general emotional trauma.”

The thrust of the no cause or right of action exception is that “mental anguish, emotional trauma and distress caused by injury to one’s child are not compensable.”

In brief, plaintiff recognizes the plethora of jurisprudence supporting the rule that claims for damages for mental anguish, emotional trauma and stress brought by persons who were not personally injured by the tort itself are not compensable.

Commencing with the case of Black v. Carrollton Railroad Co., 10 La.Ann. 33 (La.1855) and followed by Sperier v. Ott, 116 La. 1087, 41 So. 323 (La.1906), the Louisiana Supreme Court has not permitted recovery for emotional stress or mental suffering resulting from personal injuries sustained by another person. See also Brinkman v. St. Landry Cotton Oil Co., 118 La. 835, 43 So. 458 (La.1907); Kaufman v. Clark, 141 La. 316, 75 So. 65 (La.1917).

This Court reached the same results in Womack v. New Orleans Public Service Inc., 5 La.App. 71 (Orl.1926); Covey v. Marquette Casualty Co., 84 So.2d 217 (La.App.Orl.1956); Vinet v. Checker Cab Co., 140 So.2d 252 (La.App. 4th Cir. 1962), certiorari denied 1962; Sabatier v. Travelers Insurance Co., 184 So.2d 594 (La.App. 4th Cir. 1966); Robertson v. Aetna Casualty and Surety Co., 232 So.2d 829 (La.App. 4th Cir. 1970); Cambrice v. Fern Supply Co., Inc., 285 So.2d 863 (La.App. 4th Cir. 1973); and, Voelker v. Liberty Mutual Insurance Co., 190 So.2d 136 (La.App. 4th Cir. 1966).

Similárly our brothers on the First Circuit came to the same conclusion in the following cases. Honeycutt v. American General Insurance Co., 126 So.2d 789 (La.App. 1st Cir. 1961); Laplace v. Minks, 174 So.2d 895 (La.App. 1st Cir. 1965), writs refused, 248 La. 123, 176 So.2d 452 (1965); Duet v. Cheramie, 176 So.2d 667 (La.App. 1st Cir. 1965); Dudley v. State Farm Mutual Automobile Ins. Co., 255 So.2d 462 (La.App. 1st Cir. 1971); Newman v. City of Baton Rouge, 260 So.2d 52 (La.App. 1st Cir. 1972), writs denied, 261 La. 1064, 262 So.2d 43 (1972); Hickman v. Parish of East Baton Rouge, 314 So.2d 486 (La.App. 1st Cir. 1975), writs denied, 318 So.2d 59 (La.1975).

The same view was adopted by our brothers on the Second and Third Circuits. See Parker v. St. Paul Fire and Marine Ins. Co., 335 So.2d 725 (La.App. 2nd Cir. 1976), writs denied, 338 So.2d 700 (La.1976); Warr v. Kemp, 208 So.2d 570 (La.App. 3rd Cir. 1968); Bertrand v. State Farm Fire and Casualty Co., 333 So.2d 322 (La.App. 3rd Cir. 1976), writs denied in part, granted in part, 337 So.2d 875 (La.1976).

Nevertheless, plaintiff’s well briefed and convincing argument points ■ out that the apparent views taken by our Louisiana Supreme Court in the earlier cases and on writ denials in later cases are wrong. Plaintiff calls to our attention the inconsistency in the jurisprudence which permits damages for emotional stress sustained where one’s property is damaged and denies recovery to a parent who has suffered emotional trauma when a child has sustained injury.

In Cambrice v. Fern Supply Co., Inc., supra, we were compelled to reduce an amount awarded by a jury which included an award for a mother’s mental anguish and distress resulting from physical injury to her son. While recognizing the long line of jurisprudence which disallowed compensation in those cases, this court stated:

“Thus apparently the Louisiana Law is that mental suffering from injury to one’s property is compensable, and mental suffering from injury to one’s child is not. Here, for example, the mother’s grief over the bloodied and torn clothing of her son might be compensable, but her grief over his bloodied and torn leg is not. However, while this appears incongruous, the latest Supreme Court expression we find is its refusal of writs in Newman, supra, and we therefore refuse compensation for mental suffering for injury to one’s child.”

Indeed, the inconsistency in the historical position of our courts is difficult to logically explain. See Stone, Ferdinand F., “La. Tort Doctrine: Emotional Distress Occasioned by Another’s Peril,” 48 Tulane Law Review 782 (1974); Stone, Ferdinand F., La. Civil Law Treatise, “Tort Doctrine”, Vol. 12, Sections 170-171, (1977). However, because of the denial of writ applications by the Louisiana Supreme Court in those cases where awards for mental anguish, or mental stress, or mental suffering have been held not to be compensable, we cannot disregard the Supreme Court’s apparent signal. We use the word “apparent” because we have found no recent Supreme Court cases which have addressed the issue, except, inferentially, by the denial of writ applications.

Perhaps in an appropriate case the Supreme Court will reconsider the problem and either reaffirm the holdings in Black v. Carrollton Railroad Co., supra, and Sperier v. Ott, supra, or repudiate those cases and the long line of appellate decisions. It would appear that consistency would require either no recovery for emotional stress for one’s property damage or for one’s child, or recovery in both cases. We might add that it would be far easier to explain if our courts were to recognize damages for emotional stress resulting from injury to one’s child but not to one’s property, rather than the converse, as existing under the present state of our jurisprudence.

A further consideration might be whether or not a distinction might be made between intentional tort cases and negligence cases where emotional stress is suffered by a person arising out of injury to another.

Nevertheless, because a departure from the present state of our jurisprudence falls within the authority of our Supreme Court, we are compelled to affirm the trial court’s judgment insofar as it maintains the exception of no cause of action to that part of plaintiffs petition which seeks damages individually for mental anguish, emotional trauma and stress resulting from the alleged act of aggravated rape inflicted upon her child.

However, as stated hereinabove, the petition filed by the mother as tutrix of the minor child additionally seeks expenses incurred on behalf of the child and damages for mental anguish, emotional trauma and stress suffered by the child as a result of the alleged rape. Plaintiff also seeks damages suffered by her individually resulting from abusive telephone calls, verbal threats against her life and that of the child’s, damages to her property, libelous statements and attempted bribes and extortion. Clearly, these allegations of the petition state a cause of action by plaintiff individually and also state a cause of action by plaintiff as tutrix of the child.

Accordingly, the exception of no cause of action directed against that part of. the claim asserted by plaintiff individually for threats, etc., allegedly received by her from the defendants, and as natural tutrix for mental anguish, emotional trauma and stress, (past, present and future) allegedly suffered by the minor child as a result of the alleged rape, and for the claimed medical expenses incurred on behalf of the child is overruled. The exception of no cause of action insofar as plaintiff’s claim, individually, for mental anguish, emotional trauma and stress (past, present and future) allegedly sustained by her as a result of the incident, is maintained.

Consistent with the foregoing, the matter is remanded to the trial court for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring and assigning reasons.

The principal argument against allowing damages for emotional distress caused by injury or peril inflicted upon another person is that many false claims will be presented to the courts. Nevertheless, this problem (like most legal problems) is one of where to draw the line, and the drawing of lines must be done rationally.

It is far more rational to compensate only the carefully scrutinized valid claims of tort-caused emotional distress than to deny compensation in all cases because some (or even most) claims are not valid. The difficulty of the problem does not warrant the unjustness of the present solution. Indeed, the present solution disregards the very essence of the judicial process.

Just as the courts have responded to the challenge of just adjudication of difficult claims of traumatic neuroses, the court should accept and meet the challenge of these difficult but often real claims of emotional damages.

In the present case the mother asserts that the existence and causation of her mental distress can be established by solid mediqal evidence. If existence and causation are proved, these damages appear to be reasonably contemplated as compensable by C.C. art. 2315. Nevertheless, reconsideration of prior decisions on the basis of questionable logic must be undertaken by the higher court which rendered the prior decisions.

      . There have been a few departures from this long line of no recovery cases. In Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App.Orl.1951) the Orleans Court of Appeal allowed recovery to parents for mental anguish as a result of injury to their unborn child when the pregnant mother was a passenger on a bus involved in an accident. See also the companion cases of Jordan v. Fidelity & Casualty Company of New York, 90 So.2d 529 (La.App. 2nd Cir. 1956) and Jordan v. Fidelity & Casualty Company of New York, 90 So.2d 531 (La.App. 2nd Cir. 1956). In Holland v. St. Paul Mercury Insurance Co., 135 So.2d 145 (La.App. 1st Cir. 1961) the First Circuit compensated parents for their mental anguish following consumption by their child of poison placed on the parents’ premises by the defendant-exterminator. However, in this latter case the Court indicated that the recovery was based on a breach of contract theory.

      . See McGee v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21 (1944); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955); Brown v. Crocker, 139 So.2d 779 (La.App. 2nd Cir. 1962); Belgarde v. City of Natchitoches, 156 So.2d 132 (La.App. 3rd Cir. 1963); Cooper v. Christensen, 212 So.2d 154 (La.App. 4th Cir. 1968), writs denied, 252 La. 894, 214 So.2d 718 (1968) and 252 La. 899, 214 So.2d 720 (1968) companion case; Jardell v. Sabine Irrigation Co., Inc., 346 So.2d 1365 (La.App. 3rd Cir. 1977); Hymel v. Tom Alexander Brokerage Co., 348 So.2d 104 (La.App. 4th Cir. 1977), writs denied, 350 So.2d 894 (La.1977).

      . See Black, Sperier, Brinkman, Kaufman, Vinet, Voelker, Honeycutt, and Laplace, supra.

      . Actually, the trial court should have overruled the exception on the established rule of law that an exception of no cause of action is properly overruled when the petition states a cause of action as to any portion of the demand. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975).
      the proper procedure-is for the trial court, at the trial on the merits after the exception has been overruled, to exclude evidence pertaining to non-compensable items of damages. The evidence can then be presented by means .of a proffer under C.C.P. art. 1636, and an appeal following the complete trial on the merits will allow all issues to be reviewed at one time, thus avoiding multiple trials of separate issues and multiple appeals.


author: GUIDRY, Judge.

text:
    Roy HRYHORCHUK, Plaintiff-Appellant, v. CALCASIEU PARISH POLICE JURY et al., Defendants-Appellants-Appellees.
    No. 7268.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 4, 1980.

      Drewett, Jacques & Thomas, Robert W. Thomas, Lake Charles, for plaintiff-appellant.
    Plauche, Smith, Hevert & Nieset, Reid K. Hebert, Stockwell, Sievert, Viecellio, Clements & Shaddock, John S. Bradford, Lake Charles, Robert H. Marve, III, Woodrow W. Wyatt, Baton Rouge, Allen, Gooch & Bourgeois, Raymond M. Allen, Lafayette, Stephen R. Streete, Rester, Van Norman & Wright, Kenneth M. Wright, Hall, Lestage & Hall, H. 0. Lestage, III, DeRidder, Rag-gio, Cappel, Chozen & Berniard, Fred L. Cappel, Camp, Carmouche, Palmer, Barsh & Hunter, G. Michael Bourgeois, Woodley, Barnett, Cox, Williams & Fenet, E. E. Woodley, Scofield, Bergstedt & Gerard, J. Michael Veron, Alvin B. King, Lake Charles, for defendants-appellants-appel-lees.
    Before CULPEPPER, GUIDRY and YELVERTON, JJ.
   GUIDRY, Judge.

For the reasons this day assigned in the companion matter entitled Hryhorchuk v. Smith et al., 379 So.2d 281 the judgment appealed from is affirmed.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Dolly Darlene Reppond RUSHING v. STATE of Louisiana, THROUGH LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION, et al.
    No. 12996.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.
    William Charles Bradley, Ronald W. Wall, Baker, for plaintiff-appellee Dolly Darlene Reppond Rushing.

      Lawrence W. Bell, Gonzales, Cyrus S. Baldwin, Jr., Donald E. Puckett, Baton Rouge, for defendants-appellants Louisiana Health & Human Resources Adm., East Louisiana State Hospital.
    Terry F. Hessick, E. Michael Harrison, Baton Rouge, for defendants-appellees Dr. Theus Newton Armistead and Paul Bennett.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Appellant, State of Louisiana, through Louisiana Health and Human Resources Administration, seeks review of the trial court’s judgment awarding $75,000 to ap-pellee, Dolly Darlene Reppond Rushing, for the death of her husband, Robert J. Rushing.

On or around March 16, 1975, Robert Rushing, his brother and another companion set out to go frog hunting in a lake located in East Feliciana Parish and on the grounds of East Louisiana State Hospital. After arriving at this location, they put an aluminum bateau in the lake and commenced hunting. The frog grabber used was apparently a homemade device consisting of metal conduit with a frog holding apparatus on one end and was approximately 12 to 14 feet in length. After a frog had been pointed out to him, decedent stood up and raised the frog grabber which came into contact with an electric line located about 12 feet above the lake. Robert Rushing was electrocuted and died instantaneously.

Appellant was subsequently named in a wrongful death suit filed on behalf of Mrs. Rushing. After trial, judgment was rendered against the State in the sum of $75,-000, plus interest and cost. It was the trial judge’s opinion that the State’s activity in maintaining a hot electric line 12 feet above a lake was unreasonable in view of the probability of harm to others. He went on to find that maintenance of such a line was a willful breach of a duty owed the deceased and accordingly found that La.R.S. 9:2791(A) did not release the State from liability.

Appellant contends that the trial judge erred in finding that La.R.S. 9:2791 did not release it from liability and, more specifically, in finding that the death of decedent was “deliberate and willful or malicious.”

La.R.S. 9:2791(A) provides that:

“A. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing or boating or to give warning of any hazardous conditions, use of, structure or activities on such premises to persons entering for such purposes. If such an owner, lessee or occupant give permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.”

In the present case, the State is owner of the premises which were.entered upon by others for the purpose of hunting. Therefore, the trial judge properly held that the statute is applicable.

Section B of La.R.S. 9:2791 sets out instances when liability will not be excluded. It provides as follows:

“B. This Section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property, nor does it create any liability where such liability does not now exist. Furthermore the provisions of this Section shall not apply when the premises are used principally for a commercial, recreational enterprise for profit; existing law governing such use is not changed by this Section.” (Emphasis supplied).

Appellant argues that the death of Robert Rushing was not deliberate and willful or malicious and that it is therefore excluded from liability by the statute. We agree.

Since the statute applies, the liability of the State necessarily turns upon the definition of “deliberate and willful or malicious.” When these terms are construed “in their most usual signification” as mandated by Civil Code Article 14, it is apparent that the maintaining of an electric line 12 feet above the water of this small pond does not constitute a deliberate and willful or malicious act designed to cause injury to persons or property.

Citing Louisiana cases, Black’s Law Dictionary, Revised Fourth Edition, defines “deliberate” as follows:

“Well advised; carefully considered; not sudden or rash; circumspect; slow in determining. McClendon v. Louisiana Cent. Lumber Co., 17 La.App. 246, 135 So. 754, 756. Willful rather than merely intentional. Cole v. List & Weatherly Const. Co., La.App., 156 So. 88, 90. Formed, arrived at, or determined upon as a result of careful thought and weighing of considerations, as a deliberate judgment or plan; carried on coolly and steadily, especially according to a preconceived design; given to weighing facts and arguments with a view to a choice or decision; careful in considering the consequences of a step; slow in action; unhurried; characterized by reflection; dispassionate; not rash. People v. Thomas, 25 Cal.2d 880, 156 P.2d 7, 17, 18. The word carries with it an implication of some obstinacy, head-strongness, foolish daring, or intentional wrongdoing. Brown v. Kansas City Bridge Co., La.App., 191 So. 755, 757.”

The Supreme Court case of Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965) in the context of a workmen’s compensation case further states that deliberate implies more than mere negligence or a voluntary and intentional failure to use guard or protection.

In addition to meeting the above definition of deliberate, the State’s action must also be found to be willful since deliberate and willful are used in conjunction.

“Willful”, as defined by Black’s Law Dictionary, Revised Fourth Edition, in pertinent part is as follows:

“Proceeding from a conscious motion of the will; voluntary.
“Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary.
“Conscious; knowing; done with stubborn purpose, but not with malice.
“Premeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification.” (Citations omitted).

One Supreme Court case addressing the meaning of willful states that there should be an inquiry into the existence of some premeditation and malice coupled with a reasonable expectation of bringing about a real injury to himself or another. Velotta v. Liberty Mutual Insurance Company, 241 La. 814, 132 So.2d 51 (1961).

Another Supreme Court case approvingly quotes the following from Corpus Juris, to wit: . . (W)illfulness cannot exist without purpose or design, and a willful injury will not be inferred when the result may be reasonably attributed to negligence or inattention.’ State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942).

Throughout these definitions runs the concept of conscious design. The action of the State may have been negligent by a reasonable man standard, but it is not purposeful and knowing conduct from which one can conclude that the owners of the premises had a conscious design to injure.

Only small boats were used in the pond which apparently had been used for frog hunting purposes or fishing by several persons for a considerable length of time without incident until this unfortunate accident. The State cannot reasonably be expected to foresee that anyone would use a frog grabber with a metal handle of the size involved herein. It cannot, therefore, be charged with maintaining the electric line with indifference to the natural consequences. Therefore, there was no deliberate and willful injury.

Next we must consider whether the injury was malicious. Malicious injury as defined by Black’s Law Dictionary, Revised Fourth Edition, is an injury committed against a person at the prompting of malice or hatred toward him, or done spitefully or wantonly.

Again the concept of some conscious design arises. Since none existed in the present case, the judgment of the trial court is reversed and judgment is rendered herein in favor of the State of Louisiana, through Louisiana Health and Human Resources Administration, dismissing plaintiff-appellee’s demands at her costs.

REVERSED AND RENDERED.


author: GREENE, Judge.

text:
    Major GARDNER v. MINNIE, INCORPORATED.
    No. 13071.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.
    Ronald C. Levy, David L. Morgan, Jr., New Orleans, for plaintiff and appellee.
    Donald T. Carmouche, Talbot, Sotile, Car-mouche, Waguespack & Marchand, Donald-•sonville, for defendant and appellant.
    Before EDWARDS, LEAR and GREENE, JJ.
   GREENE, Judge.

This workmen’s compensation case comes before this Court a second time, having been remanded to the trial court in decision reported in 339 So.2d 1247 (La.App. 1st Cir. 1976) for the introduction of further medical evidence to determine the question of disability. Additional evidence was als© sought on remand to determine whether the worker should be classified as a common, semi-skilled or skilled laborer. This Court determined in the original opinion that plaintiff was injured while working within the scope and during the course of his employment with defendant. Since the accident occurred on October 31, 1972, the old workmen’s compensation law applies.

After taking further evidence on remand, the trial court found plaintiff to be a skilled worker and totally and permanently disabled. From this judgment defendant appeals.

Appellant alleges the trial court made the following errors:

“I. It was error for the lower court to allow any evidence of Major Gardner’s present condition or disability; the court should have only considered the two doctors’ medical reports as to Major Gardner’s disability.

“II. Error to allow Major Gardner to testify as to his condition.

“HI. Error to find total permanent disability proof still lacking whether plaintiff could operate a cane loader as a result of alleged disability.

“IV. Error for lower court to find that Major Gardner’s condition arose from his work related accident rather than from his failure to follow his doctor’s exercise program.”

The first two specifications of error are of no import. The question before this Court is simply whether the record supports disability.

The question of whether plaintiff is totally and permanently disabled is determined by whether he is disabled to perform work of the same or similar description, kind or character (not necessarily the identical position) to that which the claimant was accustomed to perform or was undertaking when the injury occurred. Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695 (1952). No hard and fast rule can be laid down for guidance in the application of this rule to the many variations of fact existing in these cases. Brannon v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1 (1953). Malone, in his work on the Louisiana Workmen’s Compensation Law and Practice, Section 275, suggests that the Louisiana jurisprudence shows that a major consideration in classifying employment as skilled or unskilled is the degree of diversity inherent in the employment.

Plaintiff operated a cane cutter and a cane loader for appellant. He was hired to operate a cane loader and operated only these two pieces of equipment during his employment. One of these machines was operated with hydraulic levers and manual steering. The Court, in Wright, supra, found the operator of an asphalt distributor, which is a large mechanical device used in surfacing blacktop roads, to be a skilled laborer. The record supports the finding of the lower court that plaintiff was a skilled laborer. The question for decision is whether plaintiff can do work of a similar description to the work being performed by him when the accident occurred.

Dr. G. Gernon Brown, orthopedic surgeon, testified in deposition that plaintiff suffered from this work related injury a loss of 15 to 20 degrees supination and pronation of his right arm, which is turning the palm of his hand up and down, and a loss of 30 degrees of the extension of his right elbow. Dr. Brown concluded that plaintiff had sustained a 20 to 25% permanent impairment of the use .and function of the right upper extremity. He was of the opinion that plaintiff would be unable to move levers on a machine for eight hours at a time but felt .he could perform this type activity for shorter periods of time. He also testified that plaintiff’s right hand hurt when he had to grab anything with it. Finally, Dr. Brown felt that plaintiff would have trouble climbing.

Dr. Herbert K. Plauche, also an orthopedic surgeon, felt plaintiff would have difficulty climbing into a cane cutter. He also gave plaintiff a 20% permanent loss of physical function of his right upper extremity as of May, 1977.

The record supports the finding of the lower court that plaintiff is totally and permanently disabled.

Appellant’s fourth specification of error has no merit. Dr. Brown testified that the deterioration of plaintiff’s elbow was caused by the injury; not a lack of exercise. He further stated that he had no knowledge of plaintiff not properly exercising his elbow. There is no other testimony in the record on this point. We agree with the lower court that plaintiff’s condition arose from a work related accident rather than from his failure to follow his doctor’s exercise program.

Plaintiff-appellee, in his brief, alleges that the trial court committed two errors. Since appellee did not file an answer to the appeal under Louisiana Code of Civil Procedure, Article 2133, nor appeal the lower court’s judgment, these errors can not be considered by this Court.

The judgment is affirmed at appellant’s costs.

AFFIRMED.


author: REDMANN, Judge. LEMMON, Judge,

text:
    BROWN & ROOT et al. v. MISSOURI PACIFIC RAILROAD CO. et al.
    No. 11092.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 1980.
    Rehearing Denied April 18, 1980.
    Robert Henry Sarpy, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Monsanto Co. and The Travelers Ins. Co.
    Esmond Phelps, II, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Missouri Pac. R. Co.

      Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

Free-rolling cars of Missouri Pacific Railroad damaged Brown & Root equipment and Monsanto facilities on April 5, 1976. On March 31, 1977, Brown & Root and its insurer sued Missouri Pacific, which on May 23 reconvened for its damages and also third-partied Monsanto for those damages and for indemnity or contribution. Monsanto answered on July 29,1977, and almost a year later, on June 16, 1978, it filed an “intervention or reconventional demand” for its own damages against Missouri Pacific. Monsanto now appeals from a judgment dismissing that last demand as prescribed. We affirm.

We first note that La.C.C.P. 424’s allowance of a prescribed claim as a defense is not determinative because (prior to La. Acts 1979 No. 431) Missouri Pacific’s claim against Monsanto can only succeed if no negligence by Missouri Pacific contributed to the accident and, in that case, Monsanto’s claim for Missouri Pacific’s negligence must fail. If, on the contrary, Missouri Pacific was negligent and thus Monsanto’s claim is valid, then Missouri Pacific’s claim must fail. In either case, Monsanto’s claim cannot be valid as a defense or offset under C.C.P. 424, although it could be valid in its own right if it is unprescribed.

It is, however, prescribed by the one-year tort prescription of La.C.C. 3536. La. R.S. 9:5801 does not save Monsanto’s petition because the original petition by Brown & Root did not interrupt prescription except as to “the cause of action therein sued upon,” which was Brown & Root’s own cause of action and not Monsanto’s cause of action: the damage to Monsanto’s facilities is an essential element of Monsanto’s cause of action but is not an element of . Brown & Root’s cause of action.

Allstate Ins. Co. v. Theriot, La.1979, 376 So.2d 950, traces and explains the correct application of R.S. 9:5801. Beginning with National Surety Corp. v. Standard Acc. Ins. Co., 1965, 247 La. 905, 175 So.2d 263, Theri-ot notes that in every case the late-filer sued upon a claim already presented, in part, by the original petition. In National Surety, for example, the workmen’s compensation insurer’s demand for reimbursement from the third-party tortfeasor presented every element of the late-filing injured employee’s cause of action under C.C. 2315: fault of the tortfeasor, causation, and damage to the employee. The employee’s late-filed petition did not allege a different cause of action, with an essential element foreign to the cause of action stated by the insurer’s petition: National Surety is comparable to the case of a tort victim who timely demands specified damages and then, over' a year after the accident, amends to seek greater damages. Our case, on the other hand, is comparable not to the late filing by the employee in National Surety but to a late filing, say, by a stranger (not paid benefits by the insurer) who happened to be hurt by the same tort.

Similarly, in Allstate Ins. Co. v. Louisiana Gas Serv., La.1978, 354 So.2d 503, affirming La.App. 4 Cir.1977, 344 So.2d 386, the timely cause of action was that of an insurer asserting by subrogation part of the late-filer’s cause of action.

Theriot, 376 So.2d at 954, n. 4, explains two Court of Appeal cases similarly, including Carona v. Radwin, La.App. 4 Cir.1967, 195 So.2d 465, writ refused 250 La. 639, 197 So.2d 897. In Carona the timely third-party demand by a tort defendant for contribution necessarily included all elements of the plaintiff’s cause of action in tort against the third-party defendant; thus, when plaintiff added the third-party defendant as a defendant over a year after the accident, plaintiff’s cause of action against the third-party defendant had already been sued upon by the timely third-party demand (notwithstanding that the third-party demand failed because the original defendant was held not a joint tortfeasor: indeed, had he been, interruption of prescription as to all joint tortfeasors by suit against any, C.C. 3552, would have made reliance on R.S. 9:5801 unnecessary).

R.S. 9:5801 only saves a late-filer from prescription when the late-filer’s own cause of action has been sued upon in a timely-filed demand. That is not our situation. Monsanto’s damages were not sued for by Brown & Root’s timely petition. The cause of action for Monsanto’s damages prescribed upon the passage of one year after the accident.

Affirmed.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring and assigning reasons.

The decision in this case extends the holding of Allstate Ins. Co. v. Theriot, cited above. The Theriot case involved a subsequent claimant who was “closely connected in relationship and identity of interest with the original plaintiff”; this case does not.

The rationale of the Theriot decision loses its logic if extended to a subsequent claimant whose demand is completely unrelated to the timely filed demand of the original claimant. Furthermore, under the notice approach utilized in the Theriot decision, Brown & Root’s petition did not fully apprise Missouri Pacific of a claim to enforce its liability for damages caused to Monsanto.

If Monsanto had filed its demand within 90 days from service of the third party demand, a different result might obtain. That issue, however, is not presented by the facts of this ease.

      . All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. .


author: REDMANN, Judge.

text:
    HIGHLANDS INSURANCE COMPANY v. UNITED STATES FIDELITY AND GUARANTY CO. et al.
    No. 11095.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 1980.
    Rehearing Denied April 18, 1980.
    Terry Christovich Gay, Christovich & Kearney, New Orleans, for plaintiff. J ’ r

    Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for U. S. Fidelity & Guaranty Co., First Commerce Real Estate Corp. and The Judian Corp.

      Ronald S. Ruiz, New Orleans, for Monroe Jarrell.
    Ronald A. Johnson, Richard A. Cozad, Johnson & McAlpine, New Orleans, for Total Facility Services and Northern Assur. Co.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

We view as determinative of this case that the basic cause of action is a tort claim against the owner of a large office and garage building by a workman injured while working there for an employer who had contracted to daily remove trash from inside the building. (That contract was with a janitorial service company which had contracted with a management company to provide all janitorial services, and the management company had contracted with the owner to manage the building.)

We affirm the trial judge’s ruling that the building owner was the statutory employer of the injured workman. The owner conducted its office-rental business by renting with rather than without janitorial service, thus making janitorial service “work . . which [the principal] had contracted to perform,” La.R.S. 23:1061. Plaintiffs argue that trash removal to the dump is not part of the owner’s business, but that is not our problem: our facts are that the workman is injured while removing the trash from inside the building (while he was inside the building) and, while an owner may rent space in a building without obliging itself to remove trash, our owner did not.

Affirmed.

LEMMON, J., dissents.

      . We ignore an exception of prescription. Defendant insurer was timely sued as the insurer of the owner of the building, notwithstanding that the owner was not named- until a later pleading.
      More important, we ignore that the statutory employer-exclusivity defense was contained in an exception (titled “no right of action”, see C.C.P. 927(5)). There was an earlier motion for summary judgment, there was full opportunity to introduce evidence and to argue, and there is no dispute over the facts pertinent to the statutory employer defense.


author: SCHOTT, Judge. LEMMON, Judge,

text:
    Preston DAVIS v. Robert F. MORROW et al.
    No. 11116.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 1980.
    Rehearing Denied April 18, 1980.
    Patrick M. Reily, New Orleans, for plaintiff-appellant.

      Donald 0. Collins, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellees.
    Before REDMANN,' LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff Preston Davis has appealed from a dismissal of his claim against A. Copeland Enterprises and its insurer on a motion for summary judgment filed by these parties. In his petition, plaintiff alleged that he was injured on June 19, 1975, while employed by Refrigeration Equipment Company, Inc. and while servicing refrigeration equipment owned by Robert F. Morrow, in premises leased by him to Copeland and that the accident occurred as follows:

“VIII.
While petitioner was in the process of removing a ‘charging nipple’ from the said refrigeration equipment in a normal and careful manner, a hex bushing broke causing a large amount of ammonia to be rapidly released from the refrigeration system severely burning petitioner on the front and left side of his body from the groin to his face, including petitioners eyes.
“IX.
Petitioner alleges that the cause of the said accident was a defect in design or original manufacture and construction of the refrigeration system.”

In support of appellees’ motion for summary judgment they filed the affidavit of Copeland’s vice president for Purchasing in which he recites that Copeland leased the warehouse from Robert F. Morrow and secured the services of plaintiff’s employer-to service the ammonia refrigeration system located therein; that Copeland in its business as a franchisor of fast food restaurants must maintain refrigeration equipment in warehouses to store the necessary, food items it is required to supply to its chain stores; and that in the operation of Copeland’s business it is normal and useful for it to contract with an outside contractor to perform the necessary maintenance and repair work on the refrigeration equipment used in its warehouse operations.

In dismissing plaintiff’s suit the trial judge found that plaintiff was a statutory employee of Copeland under the provisions of LSA-R.S. 23:1061 and his exclusive remedy was in workmen’s compensation. In this court plaintiff contends that the trial judge erred in finding that plaintiff was a statutory employee of Copeland, but he emphasized a second position which was taken in the trial court but which was ignored in the reasons for judgment.

Plaintiff contends that, 1) his suit' is based on the strict liability of the owner of premises under C.C. Art. 2322 for defects which cause injury to a third party; 2) Copeland, under the terms of the lease of the premises from Morrow, became liable under R.S. 9:3221, which relieves the owner of and subjects the lessee to liability for defects in the premises; and 3) the defense based on R.S. 23:1061 is limited to tort claims but does not prevent plaintiff from asserting a claim based on the strict liability of C.C. Art. 2322, where Copeland stands in the shoes of the owner of the premises by virtue of the lease agreement.

The lease contains the following pertinent provisions:

“Lessee assumes responsibility for the condition of the. premises and Lessor will not be responsible for damages -caused by leaks in the roof, by bursting of pipes by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof, except in the case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from Lessee of such defects and the damage caused thereby. Should Lessee fail to promptly notify Lessor, in writing of any such defects, Lessee will become responsible for any damage resulting to Lessor or other parties.”
“Lessee acknowledges that he has inspected the herein leased premises and is satisfied with same in its present condition, including the refrigeration equipment and machinery. Further, lessee agrees that the refrigeration equipment ■ shall be operated continuously (less down time for repair, maintenance and service) and same shall be maintained and serviced on a regular basis to keep same in full operating condition during the terms of the lease and same shall be returned to lessor at the end of the lease in operating condition.”

Assuming that these provisions are sufficient to make R.S. 9:3221 applicable, plaintiff’s thesis falls. If Copeland is the statutory employer of plaintiff it is liable to him for workmen’s compensation as long as the injury was “by accident arising out of and in the course of his employment.” R.S. 23:1031. Under Section 1021(1) an accident is defined as an event happening with or without human fault. Thus, whether plaintiff’s injury was produced by the negligence of a fellow servant or by a defect in his employer’s premises he is entitled to workmen’s compensation benefits for injury. This remedy is “exclusive of all other rights and remedies . . . against his employer,” R.S. 23:1032, so that a determination that Copeland was plaintiff’s employer precludes his assertion of a claim against Copeland based on the strict liability of C.C. Art. 2322.

The affidavit of Copeland’s Vice President establishes that the use and maintenance of refrigeration equipment is an integral part of Copeland’s trade, business or occupation. In order for it to keep its outlets supplied with its perishable products it keeps them stored at a central refrigeration facility from which distribution can be accomplished. Rather than employ a refrigeration mechanic directly it contracted with plaintiff’s immediate employer. If this were a workmen’s compensation claim by plaintiff against Copeland he would surely prevail. The exclusive remedy defense is simply the other side of the give and take scheme of the Workmen’s Compensation Law which is primarily designed to protect the workman. See Wofford v. Dow Chemical Co., 335 So.2d 536 (La.App. 1st Cir. 1976).

Accordingly the judgment appealed from is affirmed.

AFFIRMED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge,

dissents and assigns reasons.

The one affidavit in this record does not establish that a refrigeration mechanic was regularly used in Copeland’s business at the time of the 1975 accident or that the particular service being rendered by plaintiff was regularly required in Copeland’s business at that time. The facts in this record are insufficient to establish that Copeland is a principal under R.S. 23:1061, and even if R.S. 23:1032 implicitly granted tort immunity to principals in 1975 (before the 1976 amendment expressly granting immunity), Copeland is not entitled to judgment as a matter of law. C.C.P. art. 966.


text:
    George KUTZGAR v. John M. YARBOROUGH, Jr., M. D.
    No. 11094.
    Court of Appeal of Louisiana, Fourth Circuit.-
    Jan. 31, 1980.
    Rehearing Denied April 18, 1980.

      George Kutzgar, in pro. per.
    . David S. Kelly, Albert H. Hanemaim, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal ■ of his medical malpractice suit against a dermatologist who performed hair “plug” transplants. Plaintiff correctly contends that he had a contract with defendant. Plaintiff contends the contract was written, composed of a leaflet given him by defendant and a consent by himself to the procedure. This position is not unreasonable, but it is not very helpful to plaintiff’s cause both because the writings do not purport to be (in any case) the entire contract and because the leaflet’s language contains neither promise nor (so far as the evidence shows) misrepresentation. Plaintiff cites specifically questions 16 through 18 (reproduced in footnote l), but we agree with the trial judge that defendant did not promise anything, to plaintiff or mislead him by those questions and answers. We simply do not agree with plaintiff’s reading of the documents involved.

Plaintiff’s factual complaints are that many of the hair plugs did not grow much hair and that he has numbness in the transplant area. He also complains of lack of informed consent as to those points but also in respect to “the scalp[’s being] cut the equivalent of a forty inch gash and . pulled from the skull in an area equivalent to one half inch wide and about three inches long for sessions of 55 transplants.”

Plaintiff introduced an expert neurologist’s testimony, based on plaintiff’s subjective reaction to pinprick and tuning fork tests on the scalp, that plaintiff had mild neurological damage consisting of numbness in a five-inch ovoid area of the scalp. But defendant’s expert dermatologist testified that, although he was president of a national society of hair transplant surgeons who shared significant knowledge, he was not aware of one case of permanent loss of sensory function of the scalp. That dermatologist also testified that he personally examined plaintiff and found no physical evidence of nerve loss of the skin. And, although he opined that patients may experience some “aberrations” in nerve regeneration in individual plugs, he evaluated plaintiff’s recovery as very good.

As to the failure to inform of the cutting involved, we conclude that the patient has to expect cutting. In respect to the pain involved, the leaflet represented that “postoperative pain is rare” and that “discomfort that may occur is mild and is readily relieved by a mild analgesic.” Plaintiff is apparently one of the rare patients who experience pain, but the leaflet did not fail to inform him that he might.

In summary, we find the trial judge’s judgment supported by the record and we agree with his reasons for judgment.

Affirmed.

      . Q. How long will the transplanted hair last?
      A. Indications that it will last a lifetime or at least as long .as hair continues to grow in the region from which the transplants were taken.
      Q. What percentage of grafts “take” or grow?
      A. Again the answer depends upon the individual patient and the experience and skill of the operator. In our experience, almost all grafts grow hair, provided they are not damaged by manipulation, combing, accidents, or infections.
      Q. How long does it take for the transplanted hair to grow?
      A. Within about one month most of the transplanted hair is shed. About two months later, hair starts to grow, and continues to grow at the normal rate of about one-half inch each month or at a normal rate of growth for hair in the site from which the graft was taken.