author: DIXON, Chief Justice. LEMMON, Justice, DENNIS, Justice,

text:
    Charles MORTON and Dorothy Morton v. The JEFFERSON PARISH COUNCIL et al.
    No. 82-C-0410.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      Hubert A. Vondenstein, Parish Atty., Louis G. Gruntz, Jr., Asst. Parish Atty., for applicant.
    Jerry L. Gardner, Jr., Marie Healey, and C. Paul Baker, Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for respondent.
   DIXON, Chief Justice.

This is a zoning dispute in which defendant, the Jefferson Parish Council, sought certiorari from the court of appeal’s judgment ordering the council to issue a special use permit to plaintiffs. 408 So.2d 3 (La. App.1981).

In 1979 plaintiffs purchased a house and lot at 1335 Barataría Boulevard in Marrero, Louisiana where they planned to operate a nursery school. The property was located in a district zoned R-l, single family residential.

The Mortons applied for a permit on November 20, 1979; the application was accepted by the Planning Director. On January 8,1980 a public hearing was held before the Planning Advisory Board. The Planning Director and the Planning Advisory Board recommended that the application be denied. Thereafter, a public hearing was held before the council. The council accepted the recommendation of the board and denied the application.

The matter then proceeded to trial. The trial court ruled that the council’s refusal to grant a use permit was not based on the unconstitutional resolution and that the decision was neither arbitrary nor capricious. The court of appeal reversed, holding that the governing authority acted arbitrarily in two respects: (1) in failing to follow its own procedure by ensuring that the signatures on an opposition.petition introduced at the hearings belonged to property owners within 300 feet of the Morton property; (2) by not finding that the surrounding area contained considerable commercial development and therefore no loss of residential integrity would be occasioned by the nursery school.

Pursuant to Act 537 of 1954, the Jefferson Parish Council adopted a Comprehensive Zoning Ordinance. The ordinance provides for the regulation of the “location and use of buildings, structures, and land for trade, industry, residence or other purposes and for said purposes [to] divide the parish into districts; ...”

The R-l district is given this description: “This district is composed of certain lands and structures having a low density, single family residential character and additional open area where it is desirable and likely that such similar development will occur. Uses are limited to single family residences and such nonresidential uses as are intended primarily to provide service to the adjacent neighborhood.”

The ordinance proceeds to list several permitted uses in an R-l district, among them single family dwellings, churches, schools, parks, libraries, museums, community centers and home occupations. A nursery school is a permitted use “when approved by an ordinance by the Jefferson Parish Council, when the Council is satisfied that granting approval will not seriously affect any adjoining property or the general welfare.” In addition, conditions are placed on this use: a play area of at least 200 feet for each child must be provided and a fence of not less than 4 feet nor more than 6 feet must enclose the play area.

Initially, it should be noted that the instant case concerns a “special use” classification. Special uses have been defined as a:

“... group of uses neither absolutely permitted as of right nor prohibited by law. They are privileges, in a sense, which must be applied for and approved by some designated governmental body authorized to condition the grant of permission based on a number of relevant land use considerations. Such uses of property are permitted uses, generally compatible with the zoning district but not at every location therein nor without certain standards or other requirements being met.” P. Rohan, 6 Zoning and Land Use Controls § 44.01 (1981).

Inclusion of special permit uses in the zoning enactment presupposes a legislative determination that these uses are in harmony with the general zoning plan and will not adversely affect the community. Nevertheless, a permit is necessary precisely because of the possibility that the permitted use might be incompatible in certain respects with the applicable zoning in the area. See Copley Memorial Hospital, Inc. v. City of Aurora, 99 Ill.App.3d 217, 54 Ill.Dec. 628, 425 N.E.2d 493 (1981); City of Atlanta v. Wansley Moving & Storage Co., 245 Ga. 794, 267 S.E.2d 234 (1980); Elam v. Albers, 44 Colo.App. 281, 616 P.2d 168 (1980); County of Imperial v. McDougal, 19 Cal.3d 505, 138 Cal.Rptr. 472, 564 P.2d 14 (1977), ipp. dismissed 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 306 (1977); Tandem Holding Corp. v. Board of Zoning Appeals, 43 N.Y.2d 801, 402 N.Y.S.2d 388, 373 N.E.2d 282 (1977); State ex rel. Skelly Oil Co. v. Common Council, 58 Wis.2d 695, 207 N.W.2d 585 (1973); Kotrich v. County of DuPage, 19 Ill.2d 181, 166 N.E.2d 601 (1960), app. dismissed 364 U.S. 475, 81 S.Ct. 243, 5 L.Ed.2d 221 (1960), reh. denied 365 U.S. 805, 81 S.Ct. 466, 5 L.Ed.2d 463 (1961); R. Anderson, 3 American Law of Zoning § 19.01 (2d ed. 1977).

The authority to enact zoning regulations flows from the police power of governmental bodies and is valid if it bears a rational relation to the health, safety and welfare of the public. Folsom Road Civic Ass’n v. Parish of St. Tammany, 407 So.2d 1219 (La.1981); Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659 (La.1974). Zoning ordinances are presumed to be valid; the party attacking the ordinance bears the burden of proving that it is unconstitutional or that it was applied in an arbitrary and discriminatory manner. Furr v. Mayor and City Council of Baker, 408 So.2d 248 (La.1981); Folsom Road Civic Ass’n v. Parish of St. Tammany, supra; Southside Civic Ass’n v. Guaranty Savings Assurance Co., 339 So.2d 323 (La.1976). Special use classifications are entitled to the same standard of review as other zoning enactments. Copley Memorial Hospital, Inc. v. City of Aurora, supra.

However, a zoning ordinance which contains no standard for the uniform exercise of the power to grant or deny applications for permits is unconstitutional. Summerell v. Phillips, 282 So.2d 450 (La.1973); Gaudet v. Economical Super Market, Inc., 237 La. 1082, 112 So.2d 720 (1959); McCauley v. Albert E. Briede & Son, 231 La. 36, 90 So.2d 78 (1956). To be constitutional, a zoning ordinance must be sufficiently definite to notify citizens of their rights pursuant to the ordinance and must establish adequate standards to govern officials with respect to the uniform treatment of applications for permits under the ordinance. Summerell v. Phillips, supra.

In Summerell, a parish ordinance provided that no mobile home park could be established in certain districts unless an amendment was adopted to the ordinance which created a “T Trailer Park or Mobile Home District.” The amendment was to be considered in the manner provided in R.S. 33:4724-4725 and in the zoning ordinance. This court found that no objective standards existed for the creation of T districts. Thus, an applicant had no way of ascertaining what he must do in order to have his property zoned for a trailer court. The ordinance was declared unconstitutional because it vested unfettered discretion in the council to grant or deny applications.

This court followed Summerell in Tiber Petroleum, Inc. v. Parish of Jefferson, 391 So.2d 1178 (La.1980), in which another provision of the Jefferson Parish zoning ordinance was invalidated. The property in dispute was zoned M-2, heavy industrial. Permitted uses in this district included petroleum refining “Provided an ordinance of no objection is approved by the Jefferson Parish Council.” The council refused to issue an ordinance for the construction of a crude oil processing unit and suit ensued. The ordinance was held unconstitutional because it:

“. .. provides an exception for a particular category of heavy industry for no apparent reason. It is devoid of any guidelines for its application. No policy is stated in the enactment. The Council did not even indicate a minimal standard: that an ordinance of no objection would be approved if the proposed use did not present a hazard to the public. In the absence of any criteria for one petroleum facility to be approved and another disapproved, the ordinance is unconstitutional.... ” Tiber Petroleum, Inc. v. Parish of Jefferson, supra at 1180.

The only distinction between the wording of the ordinance before us and the defective provisions struck down in Tiber and Summerell is the inclusion of general criteria on which approval is contingent. The ordinance merely states that a permit will be given “when the Council is satisfied that granting approval will not seriously affect any adjoining property or the general welfare.” This language is insufficient to remove the decision of whether to grant or deny applications from the council’s unbridled discretion. In Gaudet v. Economical Super Market, Inc., supra, an ordinance containing language very similar to the language in this enactment was invalidated. There the court said:

“. .. the matter of granting or denying a permit addresses itself solely to the subjective opinions of the council members, and the administration of the ordinance is left entirely to the unbridled or ungoverned discretion of those officials.” Gaudet v. Economical Super Market, Inc., 237 La. at 1091, 112 So.2d at 723.

Likewise, no objective guidelines exist in this ordinance to prevent council members from making a decision on the basis of whim or caprice. Thus, the enactment must be declared invalid.

By peremptory exception filed in this court, defendant contends that the Mortons have no right or cause of action to contest denial of the permit application because a restriction in their title limits use of the property to “Strictly residential property, no business establishments.” In support of their argument, the council attached two exhibits to the exception, the act of sale from Mr. and Mrs. Louis Perrodin, Jr. to the Mortons and an act of sale from Mr. and Mrs. Evans Folse to the Perrodins in 1964. The earlier act contained the restriction above; the act by which the plaintiffs acquired the property was made subject to that restriction.

Proof of the basis for the exception must appear from the record. C.C.P. 2163; Capital Bank & Trust Co. v. Lacey, 393 So.2d 668, 670 (La.1981). This court will not receive evidence in the absence of stipulation. The documents offered here were matters of public record of which defendant must have been aware when pleadings were filed and trial had in the district court. No actions of the plaintiffs prevented defendant from raising and litigating the issue which it now raises. The defendant parish has clearly waived any right it might have had to inject this issue. We will not remand the case to permit further litigation, nor could we, with any confidence in the decision, decide the case on those instruments alone.

Mandamus is an appropriate procedural device to compel approval by a governing authority of a permit application that was wrongfully denied. Further, the last amended petition prayed for a declaratory judgment. To the extent that the decree of the court of appeal was technically incorrect in ordering issuance of the permit (that being a function of the Department of Inspection and Code Enforcement), the decree is amended to order approval of plaintiffs application. In all other respects, the judgment of the court of appeal is affirmed at defendant’s costs.

LEMMON, J., concurs and assigns reasons.

DENNIS, J., dissents with reasons.

LEMMON, Justice,

concurring.

While I am not convinced that the zoning ordinance is unconstitutional for failure to state objective guidelines for issuance or denial of special permits, I concur in the result reached by the majority. The Jefferson Parish Council acted arbitrarily and car priciously in denying the permit under the facts of this case.

DENNIS, Justice,

dissenting.

I respectfully dissent from the unduly narrow view of permissible zoning regulations adopted by the majority opinion. As noted by the majority, local governing authorities have been vested with broad powers to regulate municipal development under the Louisiana constitution and statutes. However, this broad grant is tempered by the express statutory purpose, R.S. 33:4723, and the possibility of “judicial review on the grounds of abuse of discretion, unreasonable exercise of the police powers, an excessive use of the power herein granted, or the denial of a right to due process.... ” R.S. 33:4721 Further protection against the abuse of discretion lies in a guaranteed hearing and the standards enumerated in the ordinance.

Zoning ordinances are only designed to prescribe general standards to guide the local planning council in the exercise of its power. Such ordinances cannot specifically delineate the galaxy of potential adverse uses of property within an area. Arming the local council with the authority to determine facts or conditions upon which its actions will depend should not render a zoning ordinance unconstitutional. See Yokley, Zoning Law and Practice, § 7-21 (4th ed. 1978). The requirement that the proposed use “not seriously affect any adjoining property or the general welfare,” as determined by a public hearing and subject to judicial review, offers sufficient protection against the imagined abuses which were absent here.

      . Plaintiffs opened the day care center without first obtaining a permit as required by the Comprehensive Zoning Ordinance for Jefferson Parish. (The premises had been inspected and approved by the health and fire departments). A parish safety department inspector notified the Mortons that they were in violation of the ordinance. Suit was then instituted by the Mortons seeking issuance of a permit. An exception of prematurity was sustained by the trial court on the ground that the Mortons had not applied for a permit; the court instructed the council to accept the application when made.
      It appears that the Mortons had not filed a formal application because they were informed by a parish employee that an application would not be accepted due to neighborhood opposition to the nursery school. This statement was probably based on Resolution # 30949 adopted in 1977 which amended a prior resolution to the effect that no application would be put “in summary” (placed on the council’s agenda) if there was opposition from owners of property within 300 feet of the applicant’s property. The purpose of the resolution was “to avoid holding public hearings when it [the council] has no intention of approving such application.” In the earlier suit, the trial court ruled that this provision was an unconstitutional delegation of legislative power.

      . Only the first page of the recommendation was introduced into evidence. According to defense counsel, the remainder of the report consists of a map of the neighborhood, a petition signed by twenty-four opposing landowners and the testimony of six witnesses for the Mortons. An objection by parish counsel to introduction of this transcript due to his inability to cross-examine the witnesses was sustained by the trial court and that portion of the report excluded from the record.

      . Article 14, § 29(a) of the Louisiana Constitution of 1921 empowered Jefferson Parish “to zone its territory; to create residential, commercial and industrial districts, and to prohibit the establishment of places of business in residential districts.” Zoning authority is granted to all local governmental subdivisions under the 1974 Constitution. Art. 6, § 17 La.Const. (1974). This grant is implemented in R.S. 33:4721 et seq.

      . The section read in part that a permit for parking facilities on residentially zoned property would be granted if:
      “ ‘... the City Council has been satisfied that such a land use will not have an unduly detrimental effect upon the character of the neighborhood, traffic conditions, public utility facilities or other matters pertaining to the public health, public safety or general welfare, ...’” Gaudet v. Economical Super Market, Inc., 237 La. at 1091, 112 So.2d at 722.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Floyd WEBB.
    No. 81-KA-2787.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Margaret A. Coon, William R. Alford, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    S. Austin McElroy, Covington, for defendant-appellant.
   MARCUS, Justice.

Floyd Webb was indicted by the grand jury for the first degree murder of Randy Sebble in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged. After a sentencing hearing before the same jury that determined1 the issue of guilt, the jury was unable to unanimously agree on a recommendation of a sentence of death or life imprisonment without benefit of probation, parole or suspension of sentence. Therefore, in accord-anee with La.Code Crim.P. art. 905.8, the trial court imposed a sentence of life imprisonment without benefit of probation, parole or suspension of sentence. On appeal, defendant relies on seven assignments of error for reversal of his conviction and sentence.

FACTS

On July 31, 1980, at about 9:00 p. m., Owen R. Meilleur, Jr., age seventeen, was approached by defendant in the parking lot of a Fat City lounge in Jefferson Parish. Defendant, who had jumped out of a car driven by Vincent Allnet (Owen’s uncle), began chasing and beating Owen and forced him into the car where Vincent and Richard Allnet, Kim Kohler and Randy Seb-ble were already sitting. Once inside the car, Owen noticed that Randy, a sixteen-year-old boy who worked for Vincent All-net, had been beaten. As the group drove toward Slidell, defendant and Vincent All-net repeatedly accused Owen of having stolen their jewelry and threatened to kill him if it was not returned. After briefly stopping to buy beer, Vincent Allnet parked the car in a marshy area in St. Tammany Parish on a small shell road off the main highway. After dragging Owen from inside the car to the front of the car where Randy was already standing, defendant and Vincent Allnet beat the boys further and defendant began firing a pistol in the direction of Owen’s feet. When Owen fell to the ground, he looked up to see that Vincent and Richard Allnet were both standing over him with shotguns. Moments later, Vincent shot him. As Richard ran back to the car, Owen, who was pretending to be dead, heard defendant say something about leaving no witnesses and saw him shoot Randy Sebble. Defendant and the others then drove off but returned a few minutes later. One of the four men got out of the car and kicked each of the boys to be sure they were dead, then got back into the car which- sped away. Owen, who was able to drag himself to the side of the main highway, was eventually aided by a passing motorist who transported him to the hospital. Randy Sebble died as a result of a single gunshot wound to the chest. On the basis of information provided by Owen, defendant, the Allnets and Kohler were arrested the next day and subsequently charged as aforesaid.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion to quash the indictment. He essentially argues that the entire statutory scheme for first degree murder is unconstitutional in that it permits the state to challenge for cause jurors who are unable to impose the death penalty prior to the guilt phase of the bifurcated trial.

La.Code Crim.P. art. 905 provides that following a verdict of guilty in a capital case, a sentence of death may be imposed only after a sentencing hearing. Article 905.1 provides that the sentencing hearing shall be conducted before the same jury that determined the issue of guilt.

La.Code Crim.P. art. 798 provides in pertinent part:

It is good cause for challenge on the part of the state, but not on the part of the defendant that:
(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt; ....

Article 798 was amended to conform with the decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), wherein the United States Supreme Court held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.” On the other hand, the Court found no constitutional bar to excluding jurors who stated in advance of trial that they could not even consider returning a verdict of death or that their attitude about the death penalty would prevent them from making an impartial decision as to defendant’s guilt. State v. George, 371 So.2d 762 (La.), cert. denied, 444 U.S. 953, 100 S.Ct. 430, 62 L.Ed.2d 325 (1979). Our examination of the Wither-spoon decision discloses that the statute involved therein provided for a bifurcated proceeding similar to ours. Hence, defendant’s contention is without substance. The trial judge did not err in denying defendant’s motion to quash.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motions for mistrial based on two questions by the state which made reference to a narcotics transaction. He argues that these questions were references to another crime as to which evidence was not admissible.

Owen Meilleur, Jr. testified that he had lived with Vincent Allnet for about two months prior to the shooting and that during that time defendant had made numerous visits to the house. On redirect examination, the district attorney questioned Meilleur as follows:

Q. Owen, what do you think was the motive for shooting you?
A. Well, I honestly—
Q. Did you ever see any narcotics transaction—

At this point, defendant objected; the objection was sustained. Defendant then moved for a mistrial. Outside the presence of the jury, defendant stated his reasons for the motion:

If the court please, there has been no suggestion of narcotics connected with this trial. This is an attempt on the part of the state to inject prejudice into this case. There has been no allegation, whatsoever, no reason to believe that this defendant has been connected in any way with narcotics. Counsel has earlier stressed the fact in questioning witnesses that there was frequent visits by Floyd Webb to the Allnet home. Now he is trying through this witness to imply that narcotics trade was being conducted there and that Allnet was engaged in it. I don’t think it has any place in this case, whatsoever.

(Emphasis added.) The district attorney responded:

That’s correct, Your Honor, that Allnet was engaged in some narcotics transactions. He [Owen] saw them in the house. He told them that the next day he was leaving. He was moving out of the house. His feeling is that that’s the reason they killed him ... the witness is not going to testify that he ever saw Floyd Webb [defendant] sell any narcotics at that house.

(Emphasis added.) The trial judge denied the motion for a mistrial. When the jury returned to the courtroom, the trial judge, on defendant’s motion, instructed the jury to disregard the last question made by the state to the witness.

Later in the trial, during cross-examination of defendant, the district attorney asked:

Isn’t it a fact that you all shot Owen Meilleur because he knew something about a narcotics deal?

Before defendant could answer the question, defendant objected and again moved for a mistrial. The objection was sustained; the motion for a mistrial was denied.

At the outset, we note that narcotics transactions or deals may constitute criminal conduct. La.R.S. 40:961, et seq. However, only a remark or comment, made within the hearing of the jury by the district attorney, referring to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible requires that a mistrial be ordered under La.Code Crim.P. art. 770(2).

In the instant case, we do not consider, nor does defendant allege, that the district attorney’s questions referring to a narcotics transaction were references to another crime committed or alleged to have been committed by defendant, Floyd Webb. Rather, in light of the context in which they were raised, we conclude that the questions were a reference to another crime alleged to have been committed by Vincent Allnet, the man who shot Owen Meilleur, Jr. Therefore, the questions were not within the scope of La.Code Crim.P. art. 770(2). Even assuming that the questions, concerning Vincent Allnet’s motive for attempting to murder Owen Meilleur, Jr. were irrelevant in the instant prosecution of defendant for the murder of Randy Sebble (a witness to the attempted murder of Meilleur), we do not consider that the questions created sufficient prejudice so as to deny defendant a fair trial. La.Code Crim.P. arts. 771, 775. Accordingly, the trial judge did not err in denying defendant’s motions for mistrial.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the trial judge erred in denying his motion for a mistrial on the basis that the state improperly referred to his silence after his arrest and his failure to testify in his own defense before the grand jury. He argues that the references violated the due process clause of the fourteenth amendment, citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

On direct examination, defendant generally admitted his participation in the events of the night in question but denied that he shot Randy Sebble. The essence of his testimony was that he was only an “accidental witness” to the shootings. On cross-examination, he admitted that he did not call the police and report what he had seen that night. He also stated that he did not tell the police what he had witnessed on the next day when he was arrested. When asked if he (defendant) was trying to convince the jury that he was an “innocent bystander,” defense counsel objected, stating: “Objection, Your Honor. He didn’t say he was an innocent bystander.” The objection was sustained. The cross-examination proceeded as follows:

Q. Do you recall that some twenty-one days later, three weeks later, you were given an opportunity to testify before the Grand Jury?
A. That’s correct, and Ms. Coon was there.
Q. She was there?
A. Yes, sir.
Q. Did she threaten you or intimidate you in any way?
A. No, sir.

At this point, defendant objected on the ground that since he had a right not to go before the grand jury and testify, the state should not be permitted to raise his failure to testify. The trial judge sustained the objection. Defendant then moved for a mistrial. The motion was denied.

Defendant’s first objection was based on the claim that the district attorney improperly stated that defendant testified he was an “innocent bystander” to the events of the evening. The objection was not based on a due process violation regarding defendant’s silence at the time of his arrest as set forth in Doyle v. Ohio, supra. This later basis is urged for the first time on appeal. It is well settled that a new basis for an objection cannot be raised for the first time on appeal. State v. Drew, 360 So.2d 500 (La.1978); State v. Kaufman, 331 So.2d 16 (La.), cert. denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591 (1976). Hence, defendant waived his objection on this ground.

Defendant’s second objection that the state’s questions referring to his appearance before the grand jury violated his right to due process under Doyle is without substance. Not only do the questions at issue fail to make any direct reference to defendant’s refusal to testify before the grand jury, they do not even impart an inference to that effect. Defendant’s objection was sustained. The matter was not pursued further.

In sum, the trial judge did not err in denying defendant’s motion for a mistrial. Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in overruling his objection to remarks made by the state during closing argument. He argues that the remarks constituted improper closing argument in violation of La. Code Crim.P. art. 774.

Evidence was introduced that the bullet that killed Randy Sebble was fired from defendant’s gun. Defendant admitted that he had used his gun to frighten Randy and Owen Meilleur at the murder scene but claimed that after Vincent Allnet shot Owen, he grabbed the gun from his hands and murdered Randy.

Referring to this testimony, the prosecutor stated in closing argument:

You know, I guess it’s because I see it all the time and so things sometimes seem comical to me that I know you wouldn’t think were funny. But, you know, the little dipsey-doodle over the gun is comical to me. I mean, you have to go through it a lot of times in order to try a song and dance around factors. You got to get a little absurd, you see. You got to get a little absurd. He knew we had the holster; knew it was a 25; that we had the cartridge. We have what we call discovery. We have to give reports and things to the defense, Crime Lab reports and things like that. And he knew that the facts were that there was only one 25 caliber on that scene. There’s only one pistol on that scene. So lo and behold, boy, I can just hear right now, “Boy, we got to get that gun out of your hands. We got to get that gun out of your hands.” So they do a little dipsey-doodle. Oh, man, snatch the gun right out—

At this point, defense counsel objected on the ground that the state was “insinuating we had put words into that witness’ mouth like that.” The trial judge overruled the objection. Defendant did not request an admonition or move for a mistrial.

La.Code Crim.P. art. 774 provides:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

The prosecutor was referring the jury to defendant’s explanation of how the murder weapon got from his hands into the hands of Vincent Allnet, the man he (defendant) claimed shot Randy Sebble. We do not consider that these remarks were intended to appeal to prejudice or inferentially cast aspersions on defense counsel; defense counsel was not even mentioned. Rather, we consider that they were intended to convince the jury that defendant’s version of the facts was incredulous. Hence, they were within the scope of proper argument. La.Code Crim.P. art. 774. Moreover, it is well settled that, before a verdict will be overturned on the basis of improper argument, this court must be thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Lindsey, 404 So.2d 466 (La.1981); State v. Carthan, 377 So.2d 308 (La.1979). Even assuming the remarks constituted improper argument, we do not consider that they influenced the jury and contributed to the verdict.

Assignment of Error No. 6 is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the trial judge erred in overruling his objection to the state’s reference to his right of appeal during voir dire. He further contends that a similar reference was made by the state in closing rebuttal argument.

During voir dire, the state questioned a panel of prospective jurors regarding their appreciation of the obligations of a juror. In emphasizing the tremendous responsibility, the prosecutor sought to make sure that the jurors felt that they could fulfill their responsibility because their actions would be reviewed by this court. Defendant’s objection was based on the contention that the state was trying to remove from the jurors the importance of their duty. The contention is without substance. On the contrary, the remarks emphasized the importance of their responsibility.

Defendant’s second contention is based on a reference to defendant’s right to appeal made by the state during closing rebuttal argument. Defendant did not object to the remarks either at the time of its occurrence or at the conclusion of the state’s argument. By his failure to timely object, defendant waived the alleged error. State v. Mallett, 357 So.2d 1105 (La.), cert. denied, 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 (1978). Furthermore, a prosecutor’s argument does not form part of the pleadings and proceedings which may be examined for patent error even in the absence of a formal objection. La.Code Crim.P. art. 920(2); State v. Mallett, supra. Hence, the alleged error is not presented for our review. In any event, the contention is without substance. Considering the context in which the reference to “appeals” was made, it was innocuous. Defendant suffered no prejudice as a result thereof.

Assignment of Error No. 7 is without merit.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

DIXON, C. J., concurs, disagreeing with the treatment of Assignment # 3.

ISRAEL M. AUGUSTINE, J. Ad Hoc, dissents.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judges Philip C. Ciaccio and Israel M. Augustine of the Court of Appeal, Fourth Circuit, participated in this opinion as associate justices, ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . Richard Allnet, Vincent Allnet and Kim Koh-ler were charged in the same indictment with Webb for having participated in the same offense. The tried judge granted Webb’s motion for severance. Webb was tried separately.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 2 and 4; therefore, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that the use for impeachment purposes of petitioners’ silence, at the time of arrest after receiving Miranda warnings, violated the due process clause of the fourteenth amendment.

      . In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), petitioners, in addition to claiming that reference to their silence at the time of arrest and after receiving Miranda warnings violated due process, also claimed constitutional error because each of them was cross-examined by the prosecutor as to why he had not told the exculpatory story at the preliminary hearing or any other time prior to trial. The Court, in footnote 6, stated that those averments of error presented different considerations from those raised in the post-arrest claim and expressly declined to reach those additional issues. Our research in the instant case has failed to locate any cases wherein Doyle has been extended to references by the state of defendant’s failure to testify in his own defense before the grand jury and none has been pointed out to us. In view of the disposition of this case, we find it unnecessary to reach this issue.


author: DENNIS, Justice. BLANCHE, Justice

text:
    Walter A. PACE, Jr. v. Sharon Porter CAGE, et al.
    No. 81-C-0547.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Edward W. Gray, Baton Rouge, for applicant.

      Dan B. Cornett, Taylor & Cornett, Ltd., Horace C. Lane, Lane & Clesi, Kenneth E. Barnette, Seale, Smith & Phelps, Baton Rouge, for respondent.
   DENNIS, Justice.

We granted writs in this case to resolve a conflict between the court of appeal opinion herein and a recent decision of this court. After reviewing the record and considering arguments of counsel we conclude that the result reached by the court of appeal was correct, although it was based on incorrect legal precepts. The court of appeal’s conclusion that an uninsured motorist insurer which makes payment to its insured cannot become conventionally sub-rogated to its insured’s cause of action against the tortfeasor is disapproved expressly as being in conflict with this court’s decision in Bond v. Commercial Assurance Co., 407 So.2d 401 (La.1981) (On Rehearing). The court of appeal’s decision, which in effect, sustained the third-party defendant’s exception of no cause of action was, nevertheless, correct in this case. The parties stipulated that, before the uninsured motorist insurer made any payment to the insured the insured had completely discharged the tortfeasor from any obligation to the insured in return for a cash payment of $5,000. Consequently, at the time the uninsured motorist carrier made payment to the insured the insured had no rights against his former debtor to subrogate to the insurer. See La.C.C. arts. 2159 et seq.; 2 M. Planiol, Civil Law Treatise, pt. 1, no. 480 at 274 (11th ed. La.St.L.Inst. trans. 1959).

For the reasons assigned, the judgment of the court of appeal sustaining the exception of no cause of action is affirmed.

AFFIRMED.

BLANCHE, J., dissents and hands down reasons.

BLANCHE, Justice

(dissenting).

The majority opinion fails to address the primary issue of this case.

La.R.S. 22:1406(D)(4), as interpreted by the trial judge, entitles an uninsured motorist insurer an independent right to recover against a tortfeasor. The appellate court held that an uninsured motorist insurer had no such independent right of recovery. Subrogation is not an issue.

Bond v. Commercial Union Assurance Co. 407 So.2d 401 (La., 1981) did not answer the question which is advanced by the appellant in the present case. As stated in Bond, “The major question of law in this case is whether an insurer that makes payment to its insured under uninsured motorist coverage may enforce a conventional subrogation agreement contained in its policy.”

Bond, supra, held that an uninsured motorist insurer could recover from a tort-feasor due to a subrogation provision which was included in the insurer’s policy. The discussion of whether La.R.S. 22:1406(D)(4) allows an uninsured motorist insurer an independent right to recover against a tort-feasor was pretermitted as a result of the resolution of the case on grounds of conventional subrogation.

This writer believes that La.R.S. 22:1406(D)(4) grants an independent right of recovery to the uninsured motorist insurer against the tortfeasor. No inequities would result by this construction.

The tortfeasor is the only party found to be at fault. He should be liable to the full extent of the damages incurred by the plaintiff. By settling this suit for an amount equal to the limits of his own insurance policy but less than the full amount of the damages sustained by the plaintiff, the tortfeasor has released himself from further liability. The tortfeasor, in effect, profits by the fact that he is underinsured and the plaintiff has uninsured motorist insurance.

To prevent this inequity, the legislature enacted La.R.S. 22:1406(D)(4) to allow the uninsured motorist insurer to recover from the tortfeasor any amount for which the former is answerable. This statute correctly places the full burden on the shoulders of the tortfeasor.


author: DENNIS, Justice. MARCUS, Justice

text:
    FLUKER COMMUNITY CHURCH v. F. B. HITCHENS, et al.
    No. 81-C-3286.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Lawrence Blake Jones, Scheuermann & Jones, New Orleans, for applicant.
    Nelson D. Taylor, Gail Horne Ray, Baton Rouge, Gilbert Stampley, New Orleans, for respondents.
   DENNIS, Justice.

This case presents the question of whether a local church which has disaffiliated from an international hierarchical church may have the latter enjoined from erecting a building on property of which the rebel local church is the titleholder. After the trial court confirmed the local church’s title to the property and enjoined further construction, the court of appeal, 405 So.2d 1223, reversed, awarded title to the hierarchical church and vacated the injunction. We vacate the judgments of both previous courts and dismiss plaintiff’s suit at its cost. Applying neutral principles of contract and property law to the hierarchical church’s discipline and the local church’s deed to the property, we conclude that exclusive authority over the property was vested in the hierarchical church when the local church disaffiliated.

The Fluker Community Church is an unincorporated association which has functioned as a religious society in Tangipahoa Parish for almost one hundred years. Shortly after the turn of the century, Fluker became associated with the African Methodist Episcopal Church, a hierarchical religious corporation organized under the laws of Pennsylvania. Fluker has received all of its ministers from A.M.E., has paid regular assessments to A.M.E., has submitted itself to the discipline and doctrine of A.M.E., and has at times called itself “Fluker Chapel A.M.E. Church.” We agree with the court of appeal’s finding that Fluker by these acts fully affiliated itself as a member of A.M.E. On the record as a whole, the trial court’s determination to the contrary is clearly incorrect.

This case centers around a parcel of land, which we will call Tract A, which was transferred from Fluker Farms, Inc. by an act of sale (“credit deed”) to “Fluker Chapel A.M.E. Church, Fluker, Louisiana” on October 1, 1969. The provisions in the deed are to be contrasted with those contained in the act of donation of another tract, which will be referred to as Tract B. Tract B, which is not directly involved in this lawsuit, was donated by Fluker Farms, Inc. to the “Board of Trustees, Fluker Colored Community Church” by act of donation dated October 10, 1952. The act provided “[t]his donation is made to the Board of Trustees of the church now or to be hereafter located upon the property herein donated, regardless of its organizational affiliations, although at present same is affiliated with the African Methodist Episcopal Church * * *.” At the time this controversy arose Tract A was vacant and Fluker’s church building was located on Tract B.

The present dispute began when A.M.E. refused a request by Fluker members to divert funds from A.M.E.’s African missions to maintain and repair Fluker’s church building on Tract B. After Fluker had submitted several complaints to A.M.E. and its Bishop, a majority of Fluker members at a meeting on September 23, 1979 voted to disaffiliate from A.M.E. Members of the local congregation notified A.M.E. of Fluker’s intention to be independent.

A handful of Fluker members remained loyal and continued to worship under the pastorship of an A.M.E. minister. In 1980 this remnant of the local congregation, acting with the express authorization and approval of A.M.E., began to erect a new building on Tract A.

Fluker brought this suit for possession of Tract A and an injunction of the construction against A.M.E. and several of the loyalists. After a trial, the district court confirmed Fluker’s title and enjoined A.M.E. and the loyalists from interfering with the local association’s ownership rights. On appeal, the appellate court vacated the injunction, granted title to Tract A to A.M.E., and awarded title to Tract B to Fluker.

We think both judgments below were incorrect. Ownership of property is not at issue in this case. The deed places title to Tract A in Fluker and none of the parties has questioned the validity of that instrument. The question actually presented is whether A.M.E. has the right to control the actions of the titleholder of Tract A, and thereby to control the use of Tract A. On the other hand, Tract B does not appear to be directly involved in this lawsuit at all.

The First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). Most importantly, the First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice. Id.; Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710, 96 S.Ct. 2372, 2381, 49 L.Ed.2d 151 (1976).

But it is now clear that a state, as a means of adjudicating a church property dispute, is constitutionally entitled to adopt a “neutral principles of law” analysis involving consideration of the deeds, state statutes governing the holding of church property, the local church’s charter, and the general church’s constitution and laws. The First Amendment does not require a state to adopt a rule of compulsory deference to religious authority in resolving church property disputes, where no issue of doctrinal controversy is involved. Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979).

Indeed, we think the safeguards against laws establishing religion and prohibiting the free exercise thereof contained in the First Amendment and in Article I, § 8 of our state constitution necessitate our adoption of the “neutral principles” approach. Whatever authority a hierarchical organization may have over associated local churches is derived solely from the local church’s consent. Refusal to adjudicate a dispute over property rights or contractual obligations, even when no interpretation or evaluation of ecclesiastical doctrine or practice is called for, but simply because the litigants are religious organizations, may deny a local church recourse to an impartial body to resolve a just claim, thereby violating its members’ rights under the free exercise provision, and also constituting a judicial establishment of the hierarchy’s religion. A. Adams & W. Hanlon, Jones v. Wolf: Church Autonomy and the Religion Clauses of the First Amendment, 128 U.Penn.L.Rev. 1291 (1980). Cf. Hargrave, Louisiana Constitutional Law, 42 La.L.Rev. 596 (1982).

The application of the neutral principles approach, of course, is not wholly free of difficulty. The method, as it has evolved in Georgia, and as approved by the Supreme Court in Jones v. Wolf, requires a civil court to examine certain religious documents, such as a church constitution, with an attitude of neutrality and non-entanglement. As the high court observed:

“In undertaking such an examination, a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust. In addition, there may be cases where the deed, the corporate charter, or the constitution of the general church incorporates religious concepts in the provisions relating to the ownership of property. If in such a case the interpretation of the instruments of ownership would require the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body. 443 U.S. at 604, 99 S.Ct. at 3026, 61 L.Ed.2d at 785.

As part of its neutral principles analysis, a state may adopt a presumption that, absent some indication to the contrary, a voluntary religious association is represented by a majority of its members. Any rule of majority representation can be overcome either by providing in the corporate charter or the constitution of the general church, that the identity of the local church is to be established in some other way, or by providing that the church property is held in trust for the general church and those who remain loyal to it. Indeed, a state may adopt any method of overcoming the majoritarian presumption, so long as the use of that method does not impair free exercise of rights or entangle the civil courts in matters of religious controversy. Jones v. Wolf, supra, 443 U.S. at 607-608, 99 S.Ct. at 3027-28, 61 L.Ed.2d at 787-88.

Although we have not before expressly adopted the neutral principles approach, the method has been employed in practice by this court and our courts of appeal with increasing frequency. See, Bourgeois v. Landrum, 396 So.2d 1275 (La.1981); Katz v. Singerman, 241 La. 103, 127 So.2d 515 (1961); Wilkerson v. Battiste, 393 So.2d 195 (La.App. 1st Cir. 1980); see also, Hargrave, supra. Louisiana has legislatively adopted a presumptive rule of majority representation with respect to alienation or encumbrance of an unincorporated non-profit association’s immovable property defeasible upon a showing of a contrary intention in its constitution, charter, by-laws, rules or regulations under which it is organized, governed, and exists. La.C.C. art. 446 (Supp.1980).

Applying these precepts to the facts of the present case, we conclude that the presumptive rule of majority control of use of Tract A has been overcome in favor of the hierarchical organization by provisions contained in its discipline and in the deed of acquisition.

The act of sale recites that the tract was sold by Fluker Farms, Inc. to “Fluker Chapel A.M.E. Church, Fluker, Louisiana.” [emphasis added] The church was represented by the church pastor, an A.M.E. minister, and the church secretary. The sale of Tract A did not contain any language such as that included in the donation of Tract B which tended to exclude A.M.E.’s control or use of Tract B. Consequently, Fluker acted solely within its capacity as an A.M.E. local church in acquiring Tract A.

Moreover, A.M.E.’s discipline contains regulations which effectively vest control of Tract A in the hierarchy. Under Section 3, pertaining to local church property, a proposed transfer of local church property must be approved by the trustees of the annual A.M.E. conference of which the presiding A.M.E. bishop is president. Under Section 2, pertaining to general church property, the discipline provides that if any church property is abandoned as a consequence of the disbanding of the “society” the title of said property shall vest in the A.M.E. annual conference in which it is located. From another portion of the discipline entitled “General Rules of the United Societies,” it is apparent that “society” is the historical appellation for a local A.M.E. church congregation.

Applying the neutral principles which are evoked by our examination of the documents in purely secular terms, we conclude that it was the intention of the parties, agreed upon before the dispute arose, that Tract A may not be alienated without A.M. E.’s consent, and will be considered abandoned to A.M.E. upon Fluker’s disbanding as an A.M.E. society. Accordingly, because of Fluker’s disaffiliation without a prior valid transfer of Tract A, A.M.E. has become vested with the exclusive right to control its use and to compel the transfer of its title if necessary. Since Fluker does not have a right, which the law will recognize, to be immune from the use and control of Tract A by A.M.E., it is not entitled to injunctive relief. Terrebonne Police Jury v. Matherne, 405 So.2d 314, 318 (La.1981).

The court of appeal correctly recognized that there are significant distinctions between the donation of Tract B and the circumstances surrounding the acquisition of Tract A. It may be that an application of the neutral principles approach would yield a different result as to Tract B. However, insofar as the record discloses, the present controversy is limited to Tract A. If any dispute should arise over Tract B, it must be resolved at that time by further litigation or, preferably, by agreement between the parties.

For the reasons assigned, the previous courts’ judgments are vacated and the plaintiff’s suit is dismissed at its cost.

JUDGMENTS VACATED; PLAINTIFF’S SUIT DISMISSED.

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

LEMMON, J., dissents in part and will assign reasons.

MARCUS, Justice

(dissenting in part and concurring in part).

I disagree with the majority’s conclusion that title to Tract A is in the local disaffiliated church subject to the “exclusive right” of A.M.E. “to control its use and to compel the transfer of its title if necessary.”

Rather, I consider that the title to Tract A is vested in the local congregation loyal to A.M.E. When the local church became affiliated with A.M.E., it became subject to the disciplines of the hierarchical organization. See Katz v. Singerman, 241 La. 103, 127 So.2d 515 (1961). The disciplines seem to prohibit the withdrawal of a local congregation from the central A.M.E. Therefore, title to Tract A remains in the local members of A.M.E. and is subject to their ownership and control. Hence, the injunction sought by the local church that withdrew from A.M.E. (plaintiffs) was properly denied.

Accordingly, I dissent from the majority’s vacating the judgment of the court of appeal awarding title to Tract A to the faction of the local congregation loyal to A.M.E. but concur in the majority’s denial of an injunction to plaintiffs.


author: BLANCHE, Justice. CALOGERO, J., LEMMON, J., DIXON, Chief Justice

text:
    Shirley Rae MEYERS as Administratrix of the Estate of her minor child, Sheila Denise Meyers v. Kenneth J. SMITH, Dobbs Leasing, Inc., Brooks Products, Inc. and Aetna Casualty and Surety Company.
    No. 82-C-0109.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    P. Michael Cullen, David Charles Loeb, Edwards, Cullen & Loeb, Gretna, for applicant.
    William S. Penick, Gerald J. Talbot, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for respondents.
   BLANCHE, Justice.

Plaintiff challenges an appellate court judgment holding that the exceptions to the general rules of venue contained in C.C.P. art. 42 are not applicable to suits under the direct action statute, R.S. 22:655. We affirm the decision of the court of appeal.

On behalf of her minor daughter, plaintiff seeks to recover for the wrongful death of the child’s father, Erroll Meyers. Meyers was killed in an automobile collision which occurred on April 1, 1980 in St. John the Baptist Parish. Plaintiff filed suit in Jefferson Parish naming as defendants: Kenneth L. Smith, a domiciliary of Tangipahoa Parish; Brooks Products, a California corporation with its principal business establishment in Louisiana in St. John the Baptist Parish; their insurer, Aetna Casualty and Surety Company, a foreign corporation licensed to do business in this state; and Dobbs Leasing, Inc., a foreign corporation not licensed to do business in Louisiana.

Plaintiff’s suit was met with declinatory exceptions of improper venue filed by all defendants. After a hearing, the trial court denied the exceptions, reasoning as follows:

This suit arises out of an automobile accident which occurred in St. John the Baptist Parish. None of the defendants have a residence or domicile in Jefferson Parish. However, it has been stipulated by counsel that Aetna Casualty and Surety Company, a named defendant sued under the Direct Action Statute, is handling this claim out of its Metairie office in Jefferson Parish. The Court holds (1) that the Direct Action Statute does not preclude the application of Article 77 of the Code of Civil Procedure and (2) that Article 77 does create proper venue in Jefferson Parish in this case. Therefore, the defendants’ Exception to the Venue will be overruled.

The court of appeal, holding that C.C.P. art. 77 is inapplicable to suits under the direct action statute, issued a peremptory writ reversing the decision of the trial court, sustained the exception of improper venue, and ordered transfer of plaintiff’s suit to St. John the Baptist Parish.

Louisiana’s direct action, R.S. 22:655, provides in pertinent part:

... The injured person or his or her survivors or heirs hereinabove referred to, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Art. 42, Code of Civil Procedure.

Plaintiff argues that the exceptions to the general rules of venue were incorporated into the direct action statute by virtue of that statute’s adoption of the rules provided in Article 42. In support of her position, plaintiff relies heavily upon the following language from this Court’s opinion in Surridge v. Benanti, 261 La. 282, 259 So.2d 324 (1972):

Prior to Act 471 of 1962, R.S. 22:655 (the Louisiana direct action statute) provided for venue at the “principal place of business” of either the insured or the insurer. That portion of the statute was removed by the 1962 amendment which substituted the rule that an action could be brought against either the insured or the insurer “under the general rules of venue prescribed by Art. 42, Code of Civil Procedure.” Since article 42 contains the general rule of venue, it is to be understood that the 1962 amendment also incorporated the exceptions to the general rules of venue which follow Article 43 of the Code of Civil Procedure, which states: “The general rules of venue provided in Article 42 are subject to the exceptions provided in Articles 71 through 83 and otherwise provided by law.”

To this argument, the appellate court responded: Surridge v. Benanti “does not control. There the court did not find that proper venue was in Orleans Parish where the office of the insurance company supervising the post-accident claim was located so that the court’s discussion of the C.C.P. Article 77’s applicability was dicta.” We agree.

The venue provisions of the direct action statute are substantive law, and are in derogation of the general venue rules as set out in the Code of Civil Procedure. As such, the language regarding proper venue under the direct action statute should be narrowly construed. By its express language, the direct action statute incorporates only the general rules of venue provided by Article 42. No mention is made of the exceptions to those rules provided by Article 43, although the legislature could have easily incorporated those exceptions had it desired to do so.

In Davis v. Hanover Insurance Co., 289 So.2d 292 (La.App. 3rd Cir. 1974), the Third Circuit held that the direct action statute incorporated only the general rules of venue set out in Article 42. The court stated:

We reject as unwarranted insurers’ arguments that the Legislature intended to incorporate all general rules of venue found in the Code of Civil Procedure. Had the Legislature so intended, it would not have limited its reference to Article 42. ... [T]he Legislature only referred to Article 42 and did not incorporate the exceptions.

As did the Third Circuit in Davis, we reject the plaintiffs contention that the exceptions to the general rules of venue are incorporated into the direct action statute.

In the instant case, the fatal accident occurred in St. John the Baptist Parish, and none of the named defendants are amenable to suit in Jefferson Parish. The court of appeal properly ordered transfer of plaintiff’s suit to St. John the Baptist Parish.

Accordingly, the decision of the court of appeal is affirmed.

AFFIRMED.

DIXON, C. J., dissents with reasons.

CALOGERO, J.,

dissents. The more reasonable interpretation of RS 22:655 is that the venue reference to C.C.P. Art. 42 incorporates as well the exemption to C.C.P. Art. 42.

DENNIS, J., dissents.

LEMMON, J.,

concurs. C.C.P. Art. 77 is not applicable to confer jurisdiction in this case.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

It is very difficult to adopt a rule without the existing exceptions without saying it in so many words. Surridge v. Benanti, 261 La. 282, 259 So.2d 324 (1972).


author: BLANCHE, Justice.

text:
    Willie W. JOHNSON v. James A. ALEXANDER, et al.
    Nos. 82-C-0270 c/w, 82-C-0284.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      Robert E. Morgan, McClain, Morgan & Savory, Lake Charles, for applicant in No. 82-C-0270 and respondent in No. 82-C-0284.
    Kathleen E. Drew, Baton Rouge, William M. Bass, Voorhies & Labre, Lafayette, Charles R. Moore, Baton Rouge, La Trial Lawyers Ass’n, for respondents in No. 82-C-0270.
    Christopher M. Trahan, Raggio, Cappel, Chozen & Berniard, Lake Charles, for applicants in No. 82-C-0284 and respondents in No. 82-C-0270.
    William M. Bass, Voorhies & Labbe, Lafayette, for respondent in No. 82-C-0284.
   BLANCHE, Justice.

This case involves the limitations placed on an injured employee’s right to maintain a tort action by our Workmen’s Compensation Act, R.S. 23:1021, et seq. Plaintiff, Willie Johnson, was employed by Vincent Construction Company as a pipefitter. During the course and scope of his employment, Johnson was injured when a steel pipe accidentally fell on his foot. The pipe was being transferred from pipe jacks to the ground by a backhoe tractor operated by James Alexander, an employee of Du-pont and Alexander Equipment Corporation. Vincent Construction, the principal contractor, had contracted with Dupont and Alexander as subcontractor for the rental of the backhoe and the services of its operator.

Johnson brought suit against Alexander, an employee of the subcontractor; the subcontractor, Dupont and Alexander; and the subcontractor’s liability carrier, Western World Insurance Company. Vincent Construction’s workmen’s compensation carrier, USF&G intervened in the action, seeking recovery of the benefits it had paid to Johnson.

The trial judge found James Alexander negligent, and that his negligence was the cause in fact of the accident. Further, the court reasoned that, because the backhoe operator was neither a borrowed servant nor a statutory employee of Vincent Construction (the principal contractor), defendants were subject to proceedings in tort. Accordingly, judgment was rendered against all defendants, in solido, in the amount of $102,476.06 with interest until paid. USF&G was also allowed to recover its expenditures, with preference, out of plaintiff’s award.

The court of appeal, 406 So.2d 1378, agreed the backhoe operator’s negligence was a cause in fact of plaintiff’s injuries. However, the court was of the opinion that, because a principal-subcontractor relationship existed between Vincent Construction and Dupont and Alexander, the backhoe operator was a statutory employee of Vincent Construction and, as such, a co-employee of plaintiff. Pursuant to this reasoning, the appellate court concluded plaintiff’s suit was statutorily precluded and Johnson’s sole remedy was in workmen’s compensation. Because plaintiff’s suit was dismissed, the court of appeal never addressed the issues of Johnson’s alleged contributory negligence and assumption of risk, as well as defendant’s claim of an excessive award of damages.

We granted writs to determine whether an employee of a principal who is injured by an employee of a subcontractor at the jobsite can maintain proceedings in tort against the tortfeasor, the subcontractor and the subcontractor’s liability insurer.

Workmen’s compensation is a compromise whereby the employer surrenders immunity from fault and the employee surrenders the right to sue the employer for the full amount of his damages. Malone & Johnson, Workmen’s Compensation, Sec. 32 in 13 Louisiana Civil Law Treatise 40 (1980). By its nature, workmen’s compensation is a remedy between the employer and his employee. Without the employer-employee relationship, the injured employee cannot recover benefits. Wofford v. Dow Chemical, 335 So.2d 536 (La.App. 1st Cir. 1976).

To prevent an employer from evading his compensation responsibility by imposing an insolvent subcontractor between himself and his employees, the legislature “statutorily” created an employer-employee relationship between a principal and the employees of the subcontractor. Travelers Ins. Co. v. Paramount Drilling Co., Inc., 395 So.2d 849 (La.App. 2nd Cir. 1981); Wofford v. Dow Chemical Co., supra. Thus, when a principal employs a subcontractor to execute the whole or any part of the principal’s trade, business or occupation, the principal’s liability to any injured employee of the contractor is limited to the same extent as if the injured employee had been immediately employed by the principal. R.S. 23:1061. As a result, recovery of workmen’s compensation benefits is the exclusive remedy of the “statutory” employee against his own employer, as well as the principal and employees of such employer or principal. R.S. 23:1032. Redler v. Louisiana Power & Light, 383 So.2d 409 (La.App. 4th Cir. 1980).

However, there is no provision in the statutory scheme which creates an employer-employee relationship between the subcontractor and the principal’s employees. As a result, the subcontractor has no liability for compensation payments to injured employees of the principal. Without any obligation to pay benefits, the subcontractor has not participated in the mutual compromise contemplated by our workmen’s compensation law and is not immune from suit in tort. See Wofford v. Dow Chemical Co., supra; Malone & Johnson, supra, Sec. 368 in 14 Louisiana Civil Law Treatise.

Further, though workmen’s compensation benefits are a statutory employee’s exclusive remedy when injured by employees of the principal, there is no provision in our workmen’s compensation act which grants immunity from suit to a “statutory co-employee” who injures the principal’s employee during the course and scope of employment. Absent a statutory provision to the contrary, the employees of the subcontractor must be considered third persons as far as the employees of the principal are concerned and subject to proceedings in tort. Benoit v. Hunt Tool Co., 53 So.2d 137 (La.1951); Malone v. Johnson, supra, Sec. 368 in 14 Louisiana Civil Law Treatise. Because the subcontractor may be liable for injuries sustained by an employee of the principal, the subcontractor’s liability carrier, as a solidary obligor, is also liable for plaintiff’s injuries. Ewing v. Sanson, 394 So.2d 849 (La.App. 3rd Cir. 1981), writ dismissed 398 So.2d 532; Pearson v. Hartford Accident & Indemnity Co., 281 So.2d 724 (La.1973). Consequently, plaintiff was not precluded from bringing suit against Alexander, Dupont and Alexander Equipment, and Western World Insurance Company.

The appellate court, by dismissing Johnson’s suit, pretermitted consideration of the issues concerning contributory negligence, assumption of risk and the trial court’s award of damages. These issues are to be addressed on remand of the case.

For these reasons, the judgment in favor of defendants is reversed and the case is remanded to the court of appeal for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . See R.S. 23:1101-1103.

      . R.S. 23:1061 provides:
      Where any person (in this section referred to as a principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.

      . R.S. 23:1032 provides, in pertinent part:

        The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof, (emphasis added)

      . The authors, in discussing the very issue presented by the case, give the following example:
      If Driller is involved in the business of drilling oil wells and has its employees on a drilling site, and has contracted with Tool Fisher to perform this specialized aspect of the drilling business, it is apparent that if Driller’s employees injure Tool Fisher’s employees, the remedy of the latter is only in compensation, as against both Driller’s employees and Driller itself (Driller is a principal). But if Tool Fisher’s employees injure Driller’s employees, there is nothing in the Act to take away from Driller’s employees the right to proceed in tort against Tool Fisher’s employees and against Tool Fisher. Tool Fisher does not owe compensation to Driller’s employees in any event, and thus is not entitled to tort immunity. Similarly, if Driller or its insurer pays compensation to the employees of Driller, it may seek reimbursement from Tool Fisher or its employees.


author: BLANCHE, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Michael VERRETT.
    No. 82-K-0696.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Leon A. Cannizzaro, Nancy Sharpe, Asst. Dist. At-tys., for relator.
    Robert Zibilich, Orleans Indigent Defender Program, New Orleans, for respondents.
   BLANCHE, Justice.

Defendant was being tried for the first degree murder of Willie Ellis when the judge declared a mistrial because of references made in the state’s opening argument to declarations made by the victim after he was attacked. The declarations complained of were those made by the victim identifying defendant as his assailant. Before the date set for the second trial to begin the state filed a pre-trial motion in order to obtain a ruling from the court declaring that the victim’s statements were admissible under the dying declaration exception to the hearsay rule. The trial court ruled that the statements were inadmissible and we granted the state’s writ to review the correctness of the trial court’s ruling.

The mistrial was declared before testimony was elicited from any of the witnesses who had been present when the victim made the statements. No evidence was taken at the hearing on the pre-trial motion, as the matter was submitted on brief. Accordingly, there is no evidence in the record to establish the circumstances surrounding the declarations. The principal factual account available is that contained in the state’s opening statement and that recitation is not evidence; it is only what the state intends to prove. State v. Green, 343 So.2d 149 (La.1977); State v. Shaffer, 257 So.2d 121 (La.1971). Other evidence came from a doctor who examined the victim and two police officers who arrived on the scene after the victims made the statements.

We assume that the trial judge considered that an evidentiary hearing was unnecessary, as the issue could be decided on the basis of the contents of the opening statement, which revealed that the victim’s statement was made in response to a question and there were no words uttered by the declarant indicating an awareness of his impending demise before the statement was made. We feel fortified in this assumption by virtue of the fact that both counsel, in argument and in brief, addressed these issues as the basis of the trial judge’s ruling.

The relevant part of the opening statement is as follows: On December 4, 1980, Willie Lee Ellis was fatally stabbed in the heart. After he was stabbed at his residence at 2354 St. Claude Avenue, he staggered into Bill’s Coffee Shop, located at 2348 St. Claude Avenue. Billy Meyers, who was seated at the counter inside the coffee shop, saw Mr. Ellis leaning up against the restaurant door. Mr. Meyers went to the door and Mr. Ellis stumbled in holding the left side of his chest, which was bleeding heavily. Mr. Ellis asked for help as he slouched down on the floor. Mr. Meyers asked, “What happened Slim?” (Slim was Willie Lee Ellis’ nickname.). Mr. Ellis replied, “They tried to rob me.” Mr. Meyers then ran out of the coffee shop to call the police. George Raines, the owner of the shop, ran from the back and saw Ellis on the floor. Mr. Raines questioned, “Slim, what happened?” Mr. Ellis replied, “They tried to rob me.” Mr. Raines asked, “Who tried to rob you?” and Mr. Ellis responded by stating the name of Michael Verrett at least two times. This declaration was witnessed by Ernest Payton, a cook at the coffee shop, and by Margaret Meyers, a waitress there. Mrs. Meyers was asked to write down the name of Michael Verrett, and she did so. Mr. Ellis then said, “Get me to a hospital, I’m getting weaker and weaker.” Minutes later, he died.

A dying declaration is one made under the sense of impending death. The test of the admissibility of a statement offered in evidence as a dying declaration is: Did the deceased, at the time of making the statement, believe in the reality of his impending death? Such belief being a mere mental operation, its existence can be evidenced only by outward expression and surrounding circumstances. The declaration of the deceased that he was going to die, uncorroborated by the circumstances of the case, has rarely been held, of itself, a sufficient foundation for the admission of his statements as dying declarations; and, while no absolute rule can be laid down by which to decide with certainty whether the declarant, at the time of making his statement, really expected to die, yet when the wound is from its nature mortal, and when, as a matter of fact, the deceased shortly after making his statement died, the courts have uniformly held that the declarant really believed that death was impending, and his statement has been admitted as a dying declaration. State v. Augustus, 129 La. 617, 56 So. 551 (1911).

This Court has previously held that a victim’s statement may be admissible as a dying declaration even if the statement is elicited by questions. State v. Trivas, 32 La.Ann. 1086 (1880); State v. Ashworth, 50 La.Ann. 94, 23 So. 270 (1898); State v. Pierfax, 158 La. 927, 105 So. 16 (1925). Defendant’s contention that the victim’s statements were inadmissible because they were made in response to a question lacks merit.

A statement is admissible as a dying declaration if made when the declarant is conscious of his condition and aware of his approaching demise. State v. Unger, 362 So.2d 1095 (La.1978); State v. Vincent, 338 So.2d 1376 (La.1976). However, the necessary state of mind may be inferred from the facts and circumstances surrounding the making of the declaration and the victim need not express this belief in direct terms. State v. Moore, 165 La. 163, 115 So. 445 (1928); State v. Jones, 47 La.Ann. 1524, 18 So. 515 (1895).

From the opening statement, it appears that the state was prepared to prove that the victim was fatally stabbed in the heart; that witnesses would be able to testify as to a deteriorating physical condition when he entered the restaurant, and that he died within 5 minutes of making the statement. Other evidence is the doctor’s testimony that the victim died of a single stab wound to the heart, and the officer’s testimony that there was a great deal of blood between the cafe and the victim’s residence. All such evidence would be relevant to the victim’s condition at the time the statements were made, and would have bearing on the pivotal question concerning the de-clarant’s belief in his approaching demise at the time the statement was made.

We do not believe that it is sacramental that the victim declare that he feels the end is near if such belief may be reasonably presumed from the facts and circumstances surrounding the declaration. State v. Moore, supra; State v. Jones, supra. In this connection we note, as a reasonable conclusion, that the more serious the injury and impairment of the declarant’s physical condition, the more probable is his belief that the end is near. State v. Augustus, supra; G. Pugh, Louisiana Evidence Law, at p. 466 (1974).

We conclude that, as a matter of law, the statement should not be excluded simply because no words were uttered by the declarant indicating an awareness of his impending demise before the statement was made.

For the foregoing reasons, we vacate and set aside the ruling of the trial judge and remand the case for a new trial in accordance with law.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

When the prosecutor, prior to the second trial, filed a pretrial motion to determine the admissibility of the victim’s dying declarations, the trial court should have conducted a hearing on the motion.

Rather than dealing with this issue on the basis of the factual assertions in the state’s opening statement (and brief), this court should remand with instructions to the trial court to conduct a pretrial evidentiary hearing and to decide the issue of admissibility within an explicit factual context and in accordance with stated legal principles. Nevertheless, because I agree with the views expressed in the majority opinion and because the trial court erred in ruling (on the basis of the record before him) that the statement was inadmissible, I concur.

      . Although challenged on another basis, see State v. Foote, 379 So.2d 1058 (La.1980) for a more recent case where this Court held a statement to be a dying declaration even though clearly in response to a question.

      . When the trial court excludes evidence offered by the prosecution and the trial results in a verdict of acquittal, the prosecution has no right of appeal. Furthermore, because appellate courts are reluctant to interfere with a trial in progress, an application for supervisory writs to review the evidentiary ruling is seldom successful. Thus, the motion for a pretrial determination regarding the admissibility of evidence is a useful device under appropriate circumstances, such as when the disputed evidence is the sole basis for proving guilt and may conveniently be ruled on prior to trial. Although such actions are not specifically provided for by the Code, this court has recognized the authority of trial courts (under C.Cr.P. Art. 3) to consider such matters in advance of trial. See State v. Wilkerson, 259 So.2d 871 (La.1972); State v. Humphrey, 381 So.2d 813 (La.1980).


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Sammy HUFFMAN.
    No. 81-KA-2612.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellee.
    Keith Whipple, Vanessa L. Guidry, Whipple & Boquet, Houma, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction on four counts of possession of controlled dangerous substances. The principal issue is the validity of the search warrant which was the basis for the search of defendant’s apartment and the seizure of the drugs.

On February 26, 1979, a confidential informant (revealed at trial to be Thomas Colomb) met with two state troopers in Lafayette and reported that defendant had told him earlier the same day that he (defendant) had morphine and other drugs for sale. On instructions from the troopers, Colomb placed a phone call to defendant to arrange for a purchase of narcotics.

Colomb and the troopers later traveled in two cars from Lafayette to Houma, where defendant lived. In Houma, Colomb telephoned defendant for directions to his apartment, and defendant sent someone to meet Colomb, who followed defendant’s messenger to the apartment.

While they were in defendant’s apartment, defendant showed Colomb a large quantity of preludin and amphetamines and told Colomb that morphine and tuinal would be available for purchase later that evening. Colomb returned to defendant’s apartment at 8:45 p. m., but the narcotics had not yet arrived. Approximately an hour later, Colomb returned to defendant’s apartment for a third time, and he and defendant negotiated a price of $2,200 for the purchase of the morphine and tuinal. As Colomb left the apartment to retrieve the purchase money from his car, he flashed a prearranged signal to three policemen who were conducting a surveillance of the apartment. Defendant, who had followed Colomb out of the apartment, recognized the police, ran back into his apartment, and attempted to slam the door. The policemen followed defendant and immediately executed a search warrant, which had been issued at 9:20 p. m. They recovered a bottle of tuinal, some morphine tablets, a bottle of preludin, two bottles of amphetamine tablets and a pistol.

Defendant argues that the trial court erred in refusing to suppress the drugs seized in the search pursuant to the warrant. Specifically, he contends that the affidavit contained no reference to criminal activity, noting that preludin and amphetamine were legally obtainable with a prescription and that nothing in the affidavit suggested the drugs were possessed illegally without a prescription. Compare Cerna v. Rhodes, 341 So.2d 1157 (La.App. 1st Cir. 1976), cert. denied, 343 So.2d 1067.

The affidavit contained the following assertions:

“On February 26, 1979 at 2:00 p. m. agents of the Louisiana State Police and the Terrebonne Parish Sheriff’s Office set up a surveillance of the above described apartment. While working this surveillance agents observed several subjects entering and leaving this apartment. One of these subjects was a confidential Informant. This Confidential Informant has been used by the Louisiana State Police in the past and on his information agents have arrested and convicted narcotics distributors, and seized contraband narcotics. Said Confidential Informant advised affiant that while in this apartment he (the C. I.) observed two white males known as J. C. and Harry, and a unknown white female in the apt. Informant also advised affiant that while in said apartment he (C. I.) observed being kept or stored there in the apartment a quantity of Preludin tablets, and amphetamine capsules known on the streets as Black Mollies.
“Also while working this surveillance agents observed a white male subject leave said apartment and walk to the front of the apartment complex, and there meet another white male. Agent observed the subject from the apartment sell to the other subject a quantity of what appeared to be marijuana.” (Misspellings in original text corrected.)

A search warrant may issue only upon probable cause established to the satisfaction of a judge by the affidavit of a credible person. La.Const.Art. I, § 5 (1974); C.Cr.P. Art. 162. Probable cause exists when the facts and circumstances, of which the affiant has personal knowledge or reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Wells, 253 La. 925, 221 So.2d 50 (1969). Furthermore, the facts establishing probable cause for a search warrant must be contained within the four corners of the affidavit. State v. Paciera, 290 So.2d 681 (La.1974).

The affidavit in the present case states that a reliable confidential informant, while in defendant’s apartment, personally observed defendant in the possession of a quantity of preludin and amphetamine tablets. Although there is no indication in the affidavit that the confidential informant saw a particularly large quantity of drugs or that the drugs were contained in nonla-beled bottles (facts which would indicate illegal possession), the informant stated that the drugs were being “stored” in the apartment and referred to the drugs in street terms indicative of illegal possession. Additionally, the affidavit states that the surveillance agents observed several individuals coming and going from the apartment and at one point witnessed a sale in front of the apartment of a substance which appeared to be marijuana.

A search warrant should be tested and interpreted by courts in a common sense and realistic manner, without technical requirements of elaborate specificity. The resolution of doubtful or marginal cases should be determined by according preference to warrants, so as to encourage police officers to submit evidence to a judicial officer before acting. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The facts in the affidavit in the present case, reviewed in a common sense and nontechnical manner, give rise to a reasonable belief that defendant’s apartment was being used as a place for the distribution or possession of various controlled substances. The trial judge correctly ruled that the warrant had been properly issued.

The conviction and sentence are affirmed.

       Judges Charles R. Ward, William H. Byrnes and David R. M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . Defendant’s other contentions lack any arguable merit and are treated in an unpublished appendix, which is attached to this opinion and is part of the official record in this case.

      . This is particularly true in situations, such as the present one, in which officers had available information which clearly established probable cause, but which was not included in the affidavit, obviously because of the haste with which the affidavit was prepared.
      Further, the officers in this case were faced with exigent circumstances (apparently not contrived or intentionally induced) when the defendant unexpectedly discovered their presence. Even if the search warrant affidavit was totally deficient, the immediate entry to search for destructible contraband arguably would have been justified based on the existence of probable cause and exigent circumstances. See Warden v. Heyden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) and State v. Abadie, 390 So.2d 517 (La.1980). However, in view of our conclusion regarding the sufficiency of the affidavit, we need not reach this issue.


author: LEMMON, Justice. DENNIS, Justice,

text:
    James Edwards BAGENTS v. Peggy Jean BAGENTS.
    No. 82-C-0183.
    Supreme Court of Louisiana.
    Sept. 7, 1982.

      Roy Maughan, Maughan, Atkinson & Martin, Baton Rouge, for applicant.
    Michael V. Clegg, Macy, Adcock, Kemp, Dupree, McIntyre, Shows & Clegg, Baton Rouge, for respondent.
   LEMMON, Justice.

This is a child custody matter. After the mother obtained an October, 1979 divorce on the ground of adultery and was awarded custody of her five-year old daughter, the father in May, 1980 filed a rule for change of custody, alleging that the mother was living with a man in the same apartment with the minor child. After a hearing, the trial court granted custody to the father. Shortly thereafter, the mother married her paramour and filed a motion for new trial, which was denied. The mother appealed, and the court of appeal affirmed. 408 So.2d 393. We granted certiorari to review the decisions of the lower courts. 411 So.2d 47.

James and Peggy Bagents were married in 1972, and their only child was born in 1974. When the mother filed for a divorce, the father admitted having an adulterous affair with a 17-year old girl. Shortly after the divorce, the father married his correspondent in adultery in January, 1980.

In December, 1979, the mother began living with Wade Bourgeois, who was not yet divorced from his wife. This liaison continued uninterrupted until the father filed a rule for a change of custody in May, 1980. The week before the trial, on the advice of counsel, the mother moved out of Bourgeois’ apartment.

At the hearing on the rule, the mother openly admitted that she had lived with Bourgeois, whom she planned to marry as soon as he secured his divorce. She also testified that “I do not think it’s wrong as long as it’s handled the right way”, explaining:

“I’m just raising her to believe it’s all right for us to live together as long as we’re not dressing in front of each other and stuff like that. If anything is done, it’s after she’s asleep. It’s never done-— nothing like that is ever done in front of her. We never undress or anything in front of her.”

The mother also testified that the child had been extremely upset after she and her husband separated, but became adjusted and happy after she and Bourgeois established their relationship. The mother asserted that the child had more of a family life under the present arrangement than she had when the father was living with them.

Other evidence showed that the child was doing well in school and was attending church regularly.

The father testified that although he had committed adultery before his separation from his former wife, he lived with his parents after the separation and did not begin living with his present wife until after they were married. He and his present wife also testified that she was not pregnant at the time of their marriage. There was also evidence of the father’s use of marijuana during the previous marriage, but he denied use for a period of one year prior to trial. While he asserted that he was seeking a change of custody because the mother’s relationship with Bourgeois had a detrimental effect on the child, he was aware of the relationship from its inception and did not object until an Easter Sunday fight over the late return of the child after weekend visitation. He asserted, however, that prior to the fight he had consulted an attorney about the change of custody.

Thus, the evidence showed that neither parent was a model of morality. The father had committed adultery and used marijuana during the marriage, and he was motivated, at least in part, to seek a change of custody because of a fight with his former wife. The mother, on the other hand, lived in open concubinage with a married man in the same apartment with the child and not only defended the propriety of the relationship, but also suggested that it was beneficial to the child.

Faced with such evidence, the trial judge placed emphasis on the fact that a child learns by example from parents and that the mother’s utter disregard for moral guidance and social standards is certain to affect the child adversely. Relying on the decisions in Bride v. Thon, 378 So.2d 152 (La.App. 1st Cir. 1979), and Beck v. Beck, 341 So.2d 580 (La.App. 2nd Cir. 1977), the trial court granted the change of custody. The trial judge in effect evaluated the mother’s overall character and fitness, noting that the mother had chosen a presumptively detrimental relationship over consideration for the welfare of the child. The court of appeal admitted the dilemma faced by the trial court, but found no clear abuse of discretion in the trial court’s determination that a change was in the child’s best interest.

The principal consideration in every child custody case is the best interest and welfare of the child. Past misconduct and moral unfitness, demonstrated in this case by the mother’s open concubinage in the home with the child, is a valid basis for determining the present suitability of a parent. Borras v. Falgoust, 285 So.2d 583 (La.App. 4th Cir. 1973). The present case is complicated by the fact (stipulated at the hearing on the motion for new trial) that the mother married her paramour as soon as it was legally possible to do so, thus eliminating the detriment from the child’s living in the environment of an illicit relationship. However, the marriage did not represent a change in the mother’s moral values or a desire to reform, and the trial judge on motion for new trial refused to recall the change of custody, again stressing that it was not in the best interest of the child to be raised by a parent with this mother’s selfish attitude and immoral outlook.

In performing its function of deciding custody cases, the trial court is vested with a vast amount of discretion. On appellate review, great deference must be accorded to the decision of the trial court, not only because of that court’s better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The decision reached by the trial court in this case is not necessarily the decision that the individual judges of this court would have reached. Nevertheless, this court’s function is not to substitute its collective decision for that of the trial court, but to review the decision for error of law. We cannot say in this case that the trial court erred as a matter of law in deciding that a change of custody was in the child’s best interest.

For these reasons, the judgment of the lower courts is affirmed.

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

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority fails to consider our decisions in Falco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), Monsour v. Monsour, 347 So.2d 203 (La.1977) and most recently Atteberry v. Atteberry, 381 So.2d 1231 (La.1980). If the majority wishes to abrogate the “reformation rule” established in these cases, then it should clearly say so. I do not feel that the simple statement, “the marriage did not represent a change in the mother’s moral values or a desire to reform” suffices to dispense with the reformation issue. In light of our past decisions, some guidance is due to members of the bench and bar as to why Mrs. Bagents’ remarriage did not constitute reformation of her past conduct.

      . The mother admitted that the move was prompted by legal reasons, rather than moral reasons.

      . Indeed, the mother contended that she had contacted her former husband, prior to allowing Bourgeois to move in with her and the child, and sought the father’s assurance that he would not try to change custody on the basis that “I’m unfit or something because I’m living with him”.