author:
SUMMERS, Chief Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Loyers FORD.
    No. 64045.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Claude R. Sledge, Public Defender, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SUMMERS, Chief Justice.

In an indictment returned by the Grand Jury of DeSoto Parish appellant Loyers Ford was charged with the first degree murder of Vera Salone. La.Rev.Stat. 14:30. A jury found appellant guilty as charged. At the sentence hearing which followed, the jury recommended life imprisonment without benefit of probation, parole or suspension of sentence, and appellant was sentenced accordingly. La.Code Crim.Proc. arts. 905-905.9.

During the trial the State offered as evidence a .22 caliber pistol containing one cartridge and five spent cartridges, together with five lead pellets extracted from the body of the victim. Appellant objected that the pistol and cartridges were seized without a search warrant in violation of Section 5 of Article I of the Louisiana Constitution and were therefore inadmissible under the exclusionary rule made mandatory on the States under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

In the late afternoon of September 10, 1977 Yera Salone entered “Allen Ford’s Joint” in Longstreet, DeSoto Parish, where a number of customers were present playing pool. When appellant entered the room Vera was at one end of a pool table. “What are you trying to prove?” appellant demanded of Vera. He then drew a .22 caliber pistol and fired several times at Vera. Frantically she ran from the building to Allen Ford’s house next door. Meantime appellant left “Allen Ford’s Joint”, entered his car and drove off.

When Vera Salone entered Allen Ford’s house she collapsed. She was then transported to the hospital where she subsequently died of a heart attack secondary to a gunshot wound of the heart.

The next day Deputy Pete Lyles was called to investigate the homicide. He drove to Allen Ford’s residence where he obtained information relating to the shooting of Vera Salone by appellant. From a transmission over his car radio he learned that appellant had turned himself in at the DeSoto Parish jail, asking to be locked up for his own protection.

While the deputy was investigating and trying to locate the weapon used in the shooting, an anonymous tipster approached his automobile and asked if he was looking for the murder weapon. The deputy replied that he was and the tipster departed, returning shortly with the .22 caliber pistol containing the cartridge and the five spent cartridges which were later introduced in evidence over defense objection.

Testing at the crime laboratory established that this gun was the same which fired the bullets found in the victim’s body.

Appellant argues that the pistol and cartridges delivered to the sheriff’s deputy were obtained without a warrant and that none of the well-defined exceptions to the warrant requirements are applicable here. Introduction of the weapon was therefore in violation of the exclusionary rule, he claims. His contention is based upon the guarantees of Section 5 of Article I of the Louisiana Constitution that

“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”

A search warrant is required only if a justifiable expectation of privacy is to be invaded. If the accused has no reasonable expectation of privacy in the area invaded, neither a warrant nor an exception to the warrant requirement is needed for the evidence to be admissible. It is incumbent on the accused to make a prima facie showing that his expectation of privacy has been violated in a warrantless search and seizure. State v. Mitchell, 360 So.2d 189 (La.1978).

Once the accused makes the initial showing that a warrantless search occurred the burden shifts to the State to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Franklin, 353 So.2d 1315 (La.1977). Implicit in this requirement is the necessity for the defense to show, in disputed cases, that the authorities searched a protected area, as there is no need for a warrant to search where defendant has no expectation of privacy.

The initial inquiry, then, is whether there was a search or seizure at all. In this context, to constitute a search or seizure prohibited by the Constitution, it must be established that the .22 caliber pistol delivered to the sheriff’s deputy by the anonymous tipster was obtained from an area under the direct control of the defendant.

In an effort to satisfy this inquiry appellant argues in brief that, although it was not brought out on direct or cross-examination, it can only be assumed that the weapon was recovered under the direct control of the defendant. Appellant does not in argument supply a basis for such an assumption. Conceivably the assumption could be based upon the fact that Deputy Lyles was near appellant’s residence when he received the gun, an area in which appellant may have had a justifiable expectation of privacy either by his presence or by his placement of the gun in his residence. However, such a basis for the assumption is untenable. The weapon could not then have been under the direct control of appellant, for he was at that time voluntarily incarcerated in the parish jail. Nor is there evidence in this record that appellant had secreted the gun in his residence or other place where he had a reasonable expectation of privacy.

It was appellant’s burden to establish where the tipster obtained the gun; still he made no effort to elicit this information from Deputy Lyles, not even to ask Lyles if he had queried the tipster concerning where he obtained the gun. Where the anonymous tipster obtained the gun therefore remains a mystery, just as the tipster’s identity and whereabouts are likewise unknown.

Thus a showing that an invasion of privacy occurred is lacking. It is not shown therefore that appellant’s constitutional rights are violated. The gun was therefore properly admissible in evidence and the ruling to that effect by the trial judge was correct.

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

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur in the result reached by the majority because the evidence does not show that there was a search, seizure or invasion of privacy.

       Jesse N. Stone participated in this decision as Associate Justice ad hoc.


source: Caselaw Access Project

author:
BLANCHE, Justice.
     DENNIS, Justice, SUMMERS, Chief Justice

license: Public Domain

text:
    STATE of Louisiana v. Dennis R. NALL.
    No. 65124.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      Martin L. Laird, III, Law Firm of Kramer & Laird, Alexandria, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., for plaintiff-respondent.
   BLANCHE, Justice.

Defendant, Dennis R. Nall, was arrested for the murder of Guy Kimball. His defense counsel filed motions entitled “Motion for a Preliminary Examination” and “Motion to Compel Compliance with Plea Bargain and Alternatively to Suppress for all Purposes any Evidence Obtained from the Defendant or any Other Person as a Result of Said Plea Bargain and/or Grant of Immunity.” The plea bargain at issue provided that the state would reduce the charge against defendant to manslaughter and that defendant would receive a ten year sentence. In return for this agreement by the state, the defendant would agree to plead guilty to manslaughter, accept the ten year proposed sentence and further, give a confession which involved the participation in the crime of James Burgess. The defendant would also testify against James Burgess in the state’s forthcoming prosecution of the said Burgess.

Following the hearing on these motions, the court ruled that the state had probable cause to hold the defendant, denied the defense motion to compel compliance with the plea bargain, but granted the alternative motion to suppress any evidence arising out of the plea bargain agreement. Defendant sought, and we granted, writs to determine the validity of the plea bargain, and the admissibility of a confession obtained as a result thereof.

The facts revealed in the record before us indicate that on March 8,1979, Guy Kimball was shot to death in his home near Pine-ville, Louisiana. The police investigation of this homicide began to center on the defendant, Dennis Nall, and on April 5, 1979, he agreed to participate in a polygraph examination regarding his possible involvement in the offense. Following his failure of the test, Nall gave a statement to police officers in which he admitted that he had shot the victim after the victim had threatened him and attempted to force him, at gunpoint, to engage in unnatural sexual activities. Following this statement, defendant was arrested and charged with first degree murder.

Defense counsel, who had been retained to represent the defendant, had a chance meeting with one of the assistant district attorneys, announced the fact of his representation of the defendant, and discussed with the assistant district attorney the possibility of a plea bargain. After consultation with defendant, he again approached the assistant district attorney, and this time, told him what facts the defendant had represented to him as being the true facts surrounding his involvement in the crime. These facts revealed that Nall and James Burgess were burglarizing Kimball’s house when Kimball unexpectedly returned. It was then that Burgess and defendant had shot him, but defendant claims that Burgess had been the one to actually kill Kim-ball and that after killing him, Burgess had turned his gun on Nall and forced him to fire another shot into Kimball’s dead body.

After further discussions with the district attorney and following these amazing revelations, an agreement was reached between defense counsel and the assistant district attorney, and accepted by defendant. This agreement, as related above, would permit the defendant to plead guilty to manslaughter in return for his confession and testimony against Burgess. This agreement had the final approval of a district judge.

Thereafter, and pursuant to this agreement, plaintiff did give a second statement to the police on April 30, 1979, but lo and behold, it was not the one that the assistant district attorney had counted on. The statement bore no resemblance to that which the defendant had given to defense counsel which in turn had been related to the district attorney and which, in fact, had formed the basis of their plea bargain. In this last statement, defendant related that he had actually hired Burgess to assist him in the murder of Kimball and that he had agreed to pay Burgess $10,000 for his services. The two then premeditated the crime, laid in wait for the victim and murdered him when he entered his home after work. Nall now claims that he had fired the first shot and that the motive for the crime was his romantic involvement with Kimball’s wife.

After this statement was obtained and reviewed by the district attorney’s office, the district attorney then withdrew from the agreement. Defendant filed the motions which are the subject of the matter now before us.

It is clear that there was an agreement between the defense counsel and the assistant district attorney and equally clear that it was based upon the defense counsel’s representation that Nall had been forced to shoot a dead man.

A plea bargain is a contract between the state and one accused of a crime. Consent is one of the requisites for a valid agreement (contract). LCC art. 1779. One of the defects of consent which may vitiate an agreement is error. Art. 1819. Error may be of fact or of law. Art. 1820. The error of fact which can invalidate a contract “must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.” Art. 1823. Article 1824 states:

“Art. 1824. The reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there be no such cause where the one was supposed to exist, or if it be falsely represented, there can be no valid consent.”

In this particular agreement, the cause for the state’s agreement was the diminished culpability of the defendant’s participation in the victim’s murder together with his testimony implicating James Burgess. Therefore, when the statement on which the defendant obtained the state’s agreement turned out to be false, the agreement between the parties fell because of a failure of cause. Accordingly, we agree with the district judge in dissolving the agreement and relieving the state from its obligation under the plea bargain agreement.

Defense counsel has argued that the principles of immunity apply to the arrangement between himself and the assistant district attorney. Undoubtedly, immunity may be bargained for in any criminal proceeding, but immunity was not bargained for in this plea bargain agreement. The troublesome concept of immunity is one in which a witness is compelled to give testimony and, in return for this forced infringement on his Fifth Amendment right to remain silent, then either the government may agree to forego prosecution of that witness for any charge arising out of the information which he gives in his testimony (transactional immunity), or agree that no use may be made of the testimony or of any fruits of that testimony (use immunity), even if the witness is subject to some subsequent prosecution. Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956); Piccirillo v. New York, 400 U.S. 548, 91 S.Ct. 520, 27 L.Ed.2d 596 (1971); C.Cr.P. art. 439.1. The case at bar does not involve any compelled testimony, and the question of immunity raised by defense is not validly applicable.

The trial judge in this case properly ruled that the statement which defendant Nall gave on April 30 must be suppressed because undoubtedly, when defendant gave the statement, he did so with the belief that the district attorney would honor their agreement to reduce the charge to manslaughter and accept his guilty plea. Under these circumstances, the statement could not be viewed as voluntary. The information learned from the statement and any fruits of the information cannot be used in any subsequent prosecution of the defendant.

AFFIRMED.

DENNIS, J., concurs with reasons.

SUMMERS, C. J., concurs in part and dissents in part and assigns reasons.

DENNIS, Justice,

concurring.

I respectfully concur in the result reached by the majority, but I am troubled by the opinion’s failure to analyze the case in any light other than the principles of contract law. While I agree that contractual principles may be helpful as analogies in deciding issues of fundamental fairness, ultimately the constitutional right of a person accused of a crime to fairness is wider in scope than that defined by the law of contract. Accordingly, constitutional decisions should not be made to turn in favor of the state, or give guidance to the decision of future cases, simply because of the niceties of contract law. See Cooper v. United States, 594 F.2d 12 (4th Cir. 1979).

SUMMERS, Chief Justice

(concurring in part; dissenting in part):

I have serious misgivings concerning that portion of the majority opinion which declares that the statement of April 30 was involuntary. Moreover, in the absence of some inducement on the part of the State to bring about this April 30 statement I see no sound reason under the circumstances of this case to suppress the information obtained as- a result of that statement.

Here the violation of defendant’s plea bargain enables him to virtually insulate himself from prosecution. For when he disclosed the true facts of the offense the majority holds those facts cannot be used against him.

A more realistic inference to be drawn from the facts of this case is that these events were deliberate and designed, not involuntary, on the part of defendant.

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


author: PER CURIAM.

text:
    STATE of Louisiana v. James L. CASS.
    No. 65244.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    William L. Lowe, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On September 14, 1974, defendant James L. Cass forced a young couple, at gunpoint, to perform various sexual acts together, attempted to rape the girl himself and then took a tape player, a speaker and the boy’s wallet and fled. The defendant was originally charged with and convicted of armed robbery and attempted aggravated rape. This Court affirmed the armed robbery conviction. State v. Cass, 356 So.2d 936 (La.1977). However, the attempted aggravated rape conviction was reversed. State v. Cass, 356 So.2d 396 (La.1977).

The State filed a new bill of information charging the defendant with two counts of aggravated crime against nature, in violation of La.R.S. 14:89.1, and one count of attempted aggravated rape, in violation of La.R.S. 14:42 and 14:27. A twelve man jury found the defendant guilty as charged on the count of attempted aggravated rape and guilty of attempted aggravated crime against nature on the remaining two counts. Defendant was sentenced to serve seven and one-half years imprisonment at hard labor on each of the convictions for attempted aggravated crime against nature, with said sentences to run concurrently. On the attempted aggravated rape conviction, a sentence of twenty years imprisonment at hard labor was imposed, this sentence to run consecutive to any other sentences received.

On appeal, defendant urges four arguments as grounds for reversal of his convictions and sentences.

We have reviewed these arguments and the eleven assignments of error presented, and find that they lack merit.

Decree

Accordingly, we affirm the defendant’s convictions and sentences.

AFFIRMED.

SUMMERS, C. J., concurs.

       The substance of appellant’s arguments were as follows:
      1. Trial court erred in allowing the state to mislead, voice personal opinion, and invade presumption of innocence to jury venire during voir dire.
      2. Trial court erred in allowing state to mislead jury venire during voir dire as to definition of crime against nature.
      3. Trial court erred in allowing prosecutor to elicit opinion testimony from witness to support credibility of another witness.
      4. Trial court erred in refusing to allow defendant, acting as defense counsel, to use photographic lineup for purposes of cross-examination.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Leroy ANDERSON, Jr.
    No. 65364.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      J. Michael Veron, Scofield, Bergstedt, Gerard, Hackett & Mount, Lake Charles, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Terry Johnson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-respondent.
   MARCUS, Justice.

Leroy Anderson, Jr. was charged by bill of information with simple burglary in violation of La.R.S. 14:62. At the arraignment, defendant entered a plea of not guilty. Subsequently, defendant filed a motion to suppress a written inculpatory statement made by him shortly after his arrest at the police station. It was alleged that, because of his mental retardation, defendant was incapable of knowingly and intelligently waiving his Miranda rights; therefore, the statement should be suppressed. After a suppression hearing, the trial judge denied the motion. Defendant’s application to this court was granted under our supervisory jurisdiction.

The following evidence was adduced at the suppression hearing. On November 29, 1978, defendant (a seventeen-year-old male) and three accomplices unlawfully entered Carver Elementary School in Lake Charles, Louisiana. Defendant and his accomplices were in the process of taking meat and other food items from the school cafeteria when the police arrived. Defendant was apprehended and charged with simple burglary. At the police station, defendant was allowed to call his mother. His mother spoke with Officer Dan Guillory and told him that defendant was a mental retardate. Nevertheless, defendant was read his Miranda rights. When it became apparent that defendant did not understand, Officer David Waggoner, another officer present at the interrogation, re-read defendant his rights and attempted to explain each sentence to him in more simple terms.

Officer Guillory, after stating that defendant indicated to him that he did not understand the explanation of his rights, testified as to why the officers took the statement from defendant when they knew he was mentally retarded: “I felt that we should go ahead and get the story. If . if the confession was thrown out, at least we would have his version of the story.” Officer Waggoner testified that defendant could not comprehend the meaning of his constitutional rights as read to him, though he did appear to understand when the officers explained the rights in a more simple context.

Mrs. Betty Howard, a teacher of special education who had had considerable contact with defendant when she administered several academic achievement tests to him in 1975, qualified as an expert in the field of special education. She testified that, when she tested defendant four years earlier, he was educable, though he was unable to read and had a comprehension level equivalent to an eight-year-old child. Because defendant had dropped out of school, she believed his ability to appreciate information had probably deteriorated: “I think he would have regressed overall, academically.” In addition, she stated that students involved in special education often agree with what is being communicated to them in an attempt to please and to be cooperative, though they often do not understand. At the conclusion of the hearing, the trial judge denied defendant’s motion to suppress his confession.

We have held that moderate mental retardation and low intelligence or illiteracy do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Collins, 370 So.2d 533 (La.1979); State v. Neal, 321 So.2d 497 (La.1975); State v. Nicholas, 319 So.2d 361 (La.1975); State v. Edwards, 257 La. 707, 243 So.2d 806 (1971). The critical factor in all such cases is whether or not the defendant was able to understand the rights being explained to him.

In State v. Collins, supra, we upheld a waiver of rights as knowing and intelligent where the defendant, a twenty-four year old male, was mildly retarded with an I.Q. of about 68. Two psychiatrists testified that, if the constitutional liberties were explained to Collins, he could understand them. In addition, Collins earned a living, supporting a wife and two children, and had been subjected to police interrogation before and knew its possible consequences from being a fugitive and serving a penitentiary sentence. His constitutional rights were explained to him extensively on several occasions during the investigation.

In the instant case, defendant is not nearly as sophisticated as the defendant in Collins. He was seventeen years old at the time of the crime and had the mental age of an eight year old; his I.Q. was stated to be between 50 and 69. There was no evidence of defendant’s being employed or supporting a family, factors which would tend to show his responsibility and ability to communicate. Though educable, he could not read; he was only able to print his name. The testimony of the special education teacher, the only expert to testify at the hearing and who had spent considerable time testing defendant previously, tended to show that defendant’s mental ability had probably regressed since that time. Finally, even the testimony of the police officers who took the statement from defendant was quite ambivalent as to whether defendant ever understood the rights which they attempted to explain to him.

Considering all these factors, we find that the defendant did not understand his rights nor did he appreciate the possible consequences thereof. Hence, we conclude that defendant, because of his mental retardation, was incapable of knowingly and intelligently waiving his Miranda rights. The trial judge erred in not sustaining defendant’s motion to suppress his confession. We must reverse.

DECREE

For the reasons assigned, the ruling of the trial judge denying defendant’s motion to suppress is reversed and set aside; defendant’s motion to suppress his confession is sustained; .the case is remanded to the district court for further proceedings in accordance with law.

      . 375 So.2d 948 (La.1979).


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. James H. KILLCREASE.
    No. 65378.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      Jeffrey C. Calmes, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Joseph N. Lotwick, Warren Hebert, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant was charged with possession of an unregistered sawed-off shotgun in violation of La.R.S. 40:1785 and 40:1791. Defense counsel filed a motion to suppress the introduction into evidence of the shotgun on the basis that it was obtained as a result of an illegal and warrantless search and seizure. The state argued that the shotgun was seized during a valid inventory search. The trial court denied defendant’s motion to suppress, and subsequently, defendant was convicted of the charges and placed on probation for eighteen months.

Two Louisiana State Police officers stopped defendant’s pick-up truck as it was heading south on Florida Blvd. near Steven-dale Rd. in Baton Rouge. Defendant was the sole occupant of the vehicle. Following a field sobriety test, defendant was arrested for driving while intoxicated. He has since plead guilty to the DWI charge. Pursuant to a standard inventory form, the officers proceeded without a warrant to search defendant’s truck at the arrest scene and found a sawed-off shotgun on the floorboard of the truck.

The United States and Louisiana Constitutions prohibit unreasonable searches and seizures. La.1974 Const, art. 1, § 5; U.S. Const. Amend. 4. These provisions prohibit all warrantless searches in general, except in limited and exigent circumstances established by well-recognized exceptions. State v. Lain, 347 So.2d 167 (La.1977); State v. Aguillard, 357 So.2d 535 (La.1978). The true inventory search of a motor vehicle is one of these exceptions. State v. Jewell, 338 So.2d 633 (La.1976); S. Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

A valid inventory search is conducted not on probable cause to secure evidence, but merely to inventory the vehicle’s contents in order to safeguard them, as an incident to the vehicle’s necessarily being taken into lawful police custody. The justification for the inventory search of a vehicle is to protect the occupant of the vehicle against loss of his property or the law enforcement agency against the occupant’s claim for the failure to guard against such loss. State v. Jewell, supra; State v. Gaut, 357 So.2d 513 (La.1978).

Because the inventory search is a narrow exception to the requirement of a warrant and the requirement of probable cause, it must be strictly limited to these practical purposes for which it is justified. State v. Gaut, supra. We have recognized that law enforcement officials on occasion have attempted to use this procedure as a subterfuge for a warrantless search without probable cause, for the primary purpose of seizing evidence for criminal proceedings. State v. Rome, 354 So.2d 504 (La.1978); State v. LaRue, 368 So.2d 1048 (La.1979). Thus, where the conduct of the police was inconsistent with their contention that the search was conducted for inventory purposes, we have found the search to be unlawful. Some of the factors which are significant in determining that a so-called inventory search was merely subterfuge are: that formal impoundment procedures were not followed; that the search was conducted “in the field”; that a tow truck was not called before commencing the search; that the car owner was not asked for his consent to the search, if his car contained valuables, if he would waive an inventory search, or if he could make other arrangements within a reasonable amount of time and with reasonable effort, to have someone pick up the vehicle. State v. LaRue, supra; State v. Schmidt, 359 So.2d 133 (La.1978); State v. Hatfield, 364 So.2d 578 (La.1978).

Some circumstances in the instant case do indicate the police conducted the search as an inventory for valuables. An inventory list was filled out, and apparently some discussion as to valuables ensued because the police were aware that defendant had certain valuables in the truck (a tool box in the back and a CB radio). Also, the officers called for a wrecker to pick up the truck. It is not clear, however, whether the call was made before or after the search. The officers claim they searched the truck after the call for the wrecker, whereas the defendant testified the officers started the search during the field sobriety test, indicating the search was conducted prior to the call for a wrecker. The police reports, which give the time of the search and the time of the call for a wrecker, also indicate the search was made prior to the call for a wrecker.

Even if the officers made the search after they called for a wrecker, we believe an illegal inventory search took place. The officers made no attempt to determine if an inventory search could have been avoided. Admittedly, they never asked the defendant if he consented to the search of the truck, or if he would waive his rights of a civil suit against the police department in the case of lost or stolen items, or if he could make other arrangements to have the vehicle picked up. At the motion to suppress, defendant testified that the officers refused his request that he be allowed to call his wife, who was three miles down the road, and ask her to come and get the truck. One officer testified that he did not remember the request, but if it was made, it would not have been granted.

If the defendant could have easily made arrangements for the vehicle other than having it impounded, or if he had been willing to waive his rights against the law enforcement agency for failure to guard against loss of his valuables, a justification for the inventory search would not have existed. In our opinion, the totality of the facts of the case indicate the search of defendant’s vehicle was not reasonably restricted in scope so as to constitute a true inventory search. The search without a warrant was unreasonable and in violation of constitutional guarantees against unreasonable searches and seizures. The trial judge committed reversible error in denying defendant’s motion to suppress the shotgun seized in the search.

For the reasons assigned, the conviction and sentence are reversed and set aside and the case is remanded for a new trial consistent with law and the views herein expressed.

Reversed and Remanded.

WATSON, J., dissents.


text:
    STATE of Louisiana v. Arthur HILLS.
    No. 65445.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      Robert F. Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., David J. Cortes, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Arthur Hills was charged by bill of information with aggravated burglary in violation of La.R.S. 14:60. After trial by jury, defendant was found guilty. After conviction, but prior to sentencing, the district attorney filed an information accusing defendant of a previous felony conviction pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found defendant to be an habitual offender and sentenced him to serve sixty years at hard labor with credit toward service of his sentence for time spent in actual custody prior to imposition of sentence. On appeal, defendant relies on seven assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in admitting in evidence his oral confession. He argues that the state failed to prove that the statement was free and voluntary.

At trial, outside the presence of the jury, Officer Daniel Pierson testified that he and his partner, Officer Doyle Berry, responded to a report of a prowler at the residence of the victim, an elderly man. He observed one subject flee the scene and the other,' defendant, open the rear screen door as if to leave and then retreat back inside the house. The officers followed defendant into the house and immediately apprehended him in the rear room. Berry held defendant in custody while Pierson proceeded toward the front of the house and found the victim unconscious on the floor of his ransacked bedroom. Pierson testified that Officer Barry placed defendant under arrest and advised him of his Miranda rights. It was at this point that defendant made an oral statement. Officer Pierson stated that defendant was not promised anything to make the statement nor was he threatened or coerced in any manner. Defendant offered no evidence. The trial judge ruled that “the statement, whatever it was, was made freely and voluntarily.” Defendant objected to this ruling. The jury was returned to the courtroom.

Before a confession may be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and was not made under the influence of fear, duress, intimidation, menaces, inducements or promises. La.R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A confession need not be the spontaneous act of the accused and may be obtained by means of questions and answers. La.R.S. 15:453. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are not supported by the evidence. State v. Matthews, 354 So.2d 552 (La.1978).

After reviewing the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the confession was freely and voluntarily made after defendant had been advised of his Miranda rights. Accordingly, the trial judge did not err in admitting the confession in evidence.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in disallowing in evidence a copy of the transcript of the testimony of Officer Doyle Berry at the preliminary examination contrary to La.Code Crim.P. art. 295.

Officer Doyle Berry, the sole witness at the preliminary examination, testified on that occasion concerning the circumstances of defendant’s arrest. Prior to trial, Berry, no longer a member of the police department, moved to an unknown location outside the state and thus was not available to testify at trial. During cross-examination of Officer Pierson, defendant offered in evidence the transcript of Berry’s testimony at the preliminary examination and requested that it be read to the jury for the purpose of impeaching Pierson’s testimony. The state objected on the ground of hearsay. The trial judge ruled that the transcript of Berry’s testimony was inadmissible because it could not be used for the purpose of impeaching Pierson’s testimony and because a proper foundation had not been laid for its introduction. Defendant objected to the trial judge’s ruling. Later in the trial, after the state had rested its case, defendant reurged his request that the transcript of Berry’s testimony at the preliminary examination be admitted in evidence. He offered the transcript as a defense exhibit. The trial judge ruled that the transcript could be read aloud to the jury but that a copy of the transcript would not be admitted in evidence. In response to the ruling, defense counsel informed the court, “Well, Your Honor, I think that it’s indispensable for the Defense, and we do, very respectfully urge the admission of that, and we will be satisfied if that’s the way Your Honor wants it, to have it just read to the jury.” Thereafter, the entire transcript of the preliminary examination (consisting of Berry’s testimony) was read to the jury by defense counsel.

La.Code Crim.P. art. 295 provides in pertinent part:

The transcript of the testimony of any other witness who testified at the preliminary examination is admissible for any purpose in any subsequent proceeding in the case, on behalf of either party, if the court finds that the witness is dead, too ill to testify, absent from the state, or cannot be found, and that the absence of the witness was not procured by the party offering the testimony.
The transcript of testimony given by a person at a preliminary examination may be used by any party in a subsequent judicial proceeding for the purpose of impeaching or contradicting the testimony of such person as a witness.

In view of the foregoing article, we conclude that the trial judge erred in refusing to admit the transcript of Officer Berry’s testimony at the preliminary examination. However, since the entire transcript of his testimony was read to the jury, defendant suffered no prejudice. Hence, it was not a reversible error.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in allowing in evidence a “rights of arrestee” form (S-l). He argues that the form was irrelevant.

Officer Daniel Pierson testified that it was from this form that defendant was orally advised of his rights prior to making his statement. It contained the time and date defendant was advised of his rights and was signed by the officer (Berry) who administered the rights and the witness (Pierson) thereto. The form was executed after the statement had been made.

Clearly, the document was hearsay. State v. Martin, 356 So.2d 1370 (La.1978). However, La.Code Crim.P. art. 841 provides that a party must state at the time of his objection the “grounds therefor.” The only ground stated for the objection was relevancy. The document was clearly relevant. In any event, the admission of the document in evidence was harmless error.

Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in denying his motion for a continuance of the trial based on the absence of a witness.

After the trial had commenced, defendant moved for a continuance to enable him to locate an absent witness, Doyle Berry, the officer who had arrested him. The motion was denied; however, the trial judge ordered that an instan ter subpoena be issued for Berry and granted a recess until the following morning so that defendant could attempt to locate the witness. The trial judge further ordered that the state furnish defendant any information it possessed relative to Berry’s location. Despite defendant’s efforts, Berry could not be located.

A continuance is not permitted after a trial has commenced; defendant apparently intended to move for a recess, La.Code Crim.P. art. 708. Officer Daniel Pierson, who was present when officer Berry arrested defendant, testified at trial concerning the circumstances of defendant’s arrest. Moreover, the testimony of the absent witness, Officer Berry, was read to the jury at trial. Under the circumstances, we do not find that defendant was prejudiced by the ruling of the trial judge. Hence, the trial judge did not abuse his discretion in denying defendant’s motion.

Assignment of Error No. 4 is without merit.

ASSIGNMENTS OF ERROR NOS. 5 AND 6

Defendant contends the trial judge erred in admitting in evidence the videotaped testimony of Paul Booker at the preliminary hearing. He argues that the videotapes (S-4 and S-5) were “technically flawed” due to a “gap in the middle of the testimony” (Assignment of Error No. 5) and in denying his motion to suppress the tapes grounded on the claim that defense counsel lacked adequate time to prepare for the hearing because counsel was not appointed until the day prior to the hearing (Assignment of Error No. 6).

On July 6, 1978, on motion of defense counsel, John M. Blanchard, the trial judge allowed Blanchard to withdraw as counsel for defendant and appointed Frederick J. King, Jr., in his stead. On motion of the state, a preliminary hearing to preserve the testimony of the victim, Paul Booker, was held on July 7, 1978. At the time, Booker, an elderly invalid, was preparing to leave the state for Wisconsin so that he could be cared for by his daughter. Booker was deceased at the time of trial. Booker’s testimony at the preliminary hearing was videotaped as well as transcribed. He was examined by the state and cross-examined by defendant concerning his knowledge of the crime with which defendant was charged. (Transcription of Booker’s testimony consisted of twenty-two pages, seventeen of which covered his cross-examination.)

On December 4, 1978, defendant filed a motion to suppress the testimony grounded on the claim that counsel was not afforded sufficient time to prepare for the preliminary hearing. At the request of the state and the defendant, the trial judge viewed the videotapes at the suppression hearing. The motion to suppress was denied.

At trial, the videotapes (S-4 and S-5) were admitted in evidence and were presented to the jury. Because of some technical difficulty with the videotapes, the prosecutor read a certain portion of the transcribed testimony to the jury. After preséntation of the videotaped testimony of Booker, each juror was furnished a copy of his transcribed testimony to which defendant specifically stated that he had no objection.

The record reflects that defendant made no objection at the preliminary hearing based on counsel’s lack of time for preparation. The trial judge noted in a per curiam to this assigned error that defense counsel made no written or oral request for additional time in which to prepare for the hearing.

It is well settled that, before testimony given at a prior hearing inay be introduced in evidence at a subsequent trial, without offending the confrontation and cross-examination clauses of the federal and state constitutions, certain conditions must be met: (1) defendant must have been represented by counsel at the earlier hearing; (2) the witness testified under oath; (3) the witness was cross-examined or else there was a valid waiver of the right to cross-examination; (4) at the time of the trial, the witness (whether out of state or not) is unavailable or unable to testify; and (5) the state has made a good faith diligent effort to obtain the presence of the witness, including by its out-of-state subpoena powers where appropriate. State v. West, 363 So.2d 513 (La.1978); State v. Kaufman, 304 So.2d 300 (La.1974), cert. denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 591 (1976). All factors were satisfied here. Moreover, any claim of inadequate time to prepare for the hearing was waived by defendant’s failure to object at the time of the hearing. La. Code Crim.P. art. 841. Finally, defendant’s contention that the videotapes were improperly admitted in evidence because they were “technically flawed” due to a gap therein is equally without merit. Any possible prejudice resulting from a flaw in the tapes was remedied by the fact that each juror was supplied with a copy of Booker’s transcribed testimony at the preliminary hearing. In sum, the trial judge did not err by admitting the videotaped testimony of Booker at the preliminary hearing in evidence at the trial.

Assignments of Error Nos. 5 and 6 are without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant contends the trial judge erred in denying his motion for a new trial in that he failed to decide whether the evidence was sufficient to support the verdict of the jury, citing State v. Jones, 288 So.2d 48 (La.1973).

The motion for new trial was grounded on the claim, inter alia, that the verdict was contrary to the law and the evidence. We are unable to assume that the failure of the trial judge to assign reasons for the denial of a new trial constitutes a failure to decide whether the evidence supports the verdict of the jury. The minutes simply recite that the “Court in due consideration of the evidence, denied the Motion for a New Trial.” The trial judge noted in a per curiam to this assigned error that a new trial was denied because defendant had failed to show any injustice had been done to him. Accordingly, it can be assumed, absent anything in the record to the contrary, that the trial judge, in denying defendant’s motion for a new trial, concluded that the evidence supported the verdict of the jury. State v. Flowers, 337 So.2d 469 (La.1976); State v. Strahan, 325 So.2d 231 (La.1975). State v. Jones, 288 So.2d 48 (La.1973) is clearly distinguishable from the instant case.

Assignment of Error No. 7 is without merit.

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.


author: WATSON, Justice.

text:
    Patricia GUY, Individually and on behalf of her minor child, Sean Chambers v. Robert L. TONGLET.
    No. 65478.
    Supreme Court of Louisiana.
    Jan. 28, 1980.

      Edwin R. Fleischmann, Jr., Andry & An-dry, New Orleans, for defendant-respondent.
    Michael R. Zsembik, Bagert, Bagert & McDonald, New Orleans, for plaintiff-applicant.
   WATSON, Justice.

The issue here is whether discovery directed to the ability of a defendant to satisfy a potential judgment is permissible under Louisiana’s statutory discovery procedure. The trial court ordered defendant to answer a question about what real estate he owned, and plaintiff contends that the appellate court erred in vacating the order.

The suit seeks recovery for personal injuries sustained a minor tricycle rider in an accident with an automobile. Plaintiff is Patricia Guy, mother of the child, and defendant is Robert L. Tonglet, the driver of the automobile.

On June 8,1979, the deposition of Tonglet was taken, and counsel for plaintiff propounded a question relative to the defendant’s ownership of real estate in Orleans Parish during the preceding ten years. On advice of counsel, defendant refused to answer the question on the grounds of irrelevancy. The deposition was terminated pursuant to Louisiana Code of Civil Procedure article 1444; a Motion to Compel Answers was filed by the plaintiff; and, a judgment in plaintiff’s favor ordered defendant “to answer all discovery inquiries pertaining to the nature and extent of his personal assets.” A writ of mandamus by the Fourth Circuit Court of Appeal directed the trial court to vacate its order. We granted writs to review the ruling of the Fourth Circuit.

The defendant contends that his financial status is irrelevant to the issues of liability or damages and is therefore not within the scope of pretrial discovery.

The scope of discovery is set forth in the Louisiana Code of Civil Procedure article 1422, which provides in pertinent part:

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Acts 1976, No. 574 § 1.”

As was stated in Ogea v. Jacobs, 344 So.2d 953, 960 (La., 1977) “[T]he test of discoverability is not the admissibility of the particular information sought, but whether the information appears reasonably calculated to lead to the discovery of admissible evidence”. With discovery devices the parties should have all the facts necessary to fully prepare them for trial, even if some of those facts are inadmissible at trial. Picou v. Louisiana Land and Exploration Co., 345 So.2d 509 (La.App. 1 Cir. 1976).

Under Louisiana law, a defendant can assert evidence of his impecunious condition at the time of trial. The “inability to pay” rule dates back to Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (1898) and has been applied consistently by Louisiana courts ever since. The inability of the defendant to pay a judgment is a proper subject of consideration in assessing damages. Daly v. Kiel, 106 La. 170, 30 So. 254 (1901); Tarver v. U-Haul Co., Inc., 362 So.2d 1157 (La.App. 2 Cir. 1978); Davis v. Moore, 353 So.2d 740 (La.App. 4 Cir. 1977), writs denied 354 So.2d 1379, 1384. The theory behind the rule was stated in Cole v. Sherrill, 7 So.2d 205 (La.App. 2 Cir. 1942):

“It has never been considered good policy to bankrupt one to pay another even though the award granted is not in line with other cases involving the same injuries and might not fully compensate the plaintiff for the injuries he received. Fair justice between both parties must be arrived at.” 7 So.2d 211.

Plaintiff contends that she is entitled to discover information to counter a defense available to defendant. Defendant’s counsel states in brief that, should this information be held discoverable, he is prepared to stipulate that he will not raise as a defense, or in mitigation, either before or during trial, his poverty or inability to respond to a potential monetary judgment exceeding the coverage provided by his liability insurance policy.

The defendant relies on Benoit v. International Harvester, 251 So.2d 389 (La. App. 3 Cir. 1971). In Benoit, the defendant’s financial condition was held to be irrelevant to the issue of liability for negligence and therefore not discoverable. The court relied on cases from other jurisdictions in which similar questions had been considered: Hillman v. Penny, D.C., 29 F.R.D. 159 (1962); Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649 (1955); and, Clauss v. Danker, D.C., 264 F.Supp. 246 (1967). While none of these allow discovery into defendant’s financial affairs, the cases do not reveal whether evidence of a defendant’s inability to pay would have been admissible as a defense or mitigating factor. Generally, courts seem to be in agreement that when punitive or exemplary damages are claimed, the defendant’s financial status is discoverable since such information is relevant to the subject matter of the action. Coy v. Superior Court of Contra Costa County, 58 Cal.2d 210, 23 Cal.Rptr. 393, 373 P.2d 457 (1962); Doak v. Superior Court of County of Los Angeles, 257 Cal.App.2d 825, 65 Cal.Rptr. 193 (1968); Lewis v. Moody, 195 So.2d 260 (Fla.App. 1967); Gierman v. Toman, 77 N.J.Super. 18, 185 A.2d 241 (1962). Similarly, in Louisiana, since evidence of defendant’s financial situation is admissible as a defense or in mitigation of damages, it is relevant to the issue of damages and should be subject to discovery if the defense is to be raised.

Benoit was decided prior to the 1976 enactment of Louisiana Code of Civil Procedure article 1423 which expressly allows inquiry into the amount of insurance coverage afforded a defendant. Plaintiff contends that this article has no conceivable purpose other than to allow discovery of the assets available to satisfy a potential judgment, but insurance can be distinguished from other assets. Insurance is maintained specifically for the purpose of protecting a defendant against litigation; the insurance company ordinarily defends the litigation; and disclosure of the existence of liability insurance does not involve a significant invasion of privacy. It cannot be said that article 1423 was enacted to permit discovery of all aspects of defendant’s financial status.

In the recent case of Sutton v. Lafont, 376 So.2d 628 (La.App. 4 Cir. 1979) the defendant sought relief from a trial court order requiring him either to (1) produce his personal financial records, or (2) declare that he would not raise at trial the issue of his inability to pay a judgment which might be rendered against him. The court recognized that, although the plaintiff had a right to develop information necessary for trial, the defendant also had a right to privacy. However, since the order in question offered the defendant an opportunity to maintain his privacy by declaring that he would not raise the issue of inability to pay at trial, both parties were protected.

We agree with the approach adopted by the Fourth Circuit in Sutton v. Lafont, supra. Should a defendant raise the issue of his inability to pay a judgment, in defense or in mitigation, he has put his financial status at issue and the plaintiff is entitled to be prepared to present evidence in opposition. His financial status is otherwise irrelevant. However, since there is no requirement that inability to pay be pleaded affirmatively, LSA-C.C.P. art. 1005; Williams v. Garner, 268 So.2d 56 (La.App. 1 Cir. 1972); Washington v. Anglade, 359 So.2d 1330 (La.App. 4 Cir. 1978), and it might be raised by defendant at. trial, plaintiff is within her rights to discover information to combat a possible defense. Defendant here represents that he is prepared to stipulate that he will not raise the defense; he is entitled to do so.

Therefore, the unqualified order of the trial court must be amended to give the defendant the option of (1) declaring that he will not raise the issue of inability to pay, or (2) answering discovery inquiries pertaining to his ability to respond to a judgment.

For the reasons assigned, the judgment of the Court of Appeal is reversed and the matter is remanded to the trial court for entry of an order in accordance with this opinion.

REVERSED AND REMANDED.


author: SCHOTT, Judge.

text:
    Thomas J. BOU et al. v. NEW ORLEANS PUBLIC SERVICE, Jane Doe and Richard Roe.
    No. 10572.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1979.

      Philip E. Henderson, Henderson, Hane-mann & Morris, Houna, for plaintiffs-appellants.
    A. R. Christovich, Jr., New Orleans, for def endants-appellees.
    Before BOUTALL and SCHOTT, JJ., and JOHN T. HOOD, Jr., J., Assigned.
   SCHOTT, Judge.

Plaintiffs, Mr. and Mrs. Thomas J. Bou, have appealed from a judgment in their favor against defendants. They seek an increase in awards for medical expenses and general damages. The issue is whether some of the medical problems of Mrs. Bou diagnosed in May, 1977, were caused by the accident of August 15, 1974.

Mrs. Bou was a passenger on defendants’ bus when, as a result of the driver’s negligence in turning the bus, she was thrown from her seat into the seat ahead of her causing injury to her chest and knee. She felt considerable pain on the night of and the day following the accident and consulted her physician, Dr. Louis Balart, on August 16 complaining of pain in the sternum, the right knee, and the third intercostal space. Dr. Balart found a knot in the right sternum area and redness on both sides of the breastbone. According to plaintiff, she began taking medication and was planning to see an orthopedist, all on Dr. Balart’s advice, when she began to experience such severe pain in her chest that on September 5 she sought emergency treatment at Ochs-ner Clinic, where she was placed under the care of Dr. Charles B. Moore, a cardiologist.

Dr. Moore testified as follows: After plaintiff was examined in the emergency room a heart attack was suspected and she was admitted to the hospital. After extensive tests she was discharged on September 12 with the diagnosis of no heart disease and chest pain probably due to costochon-dritis, or an inflammation of the cartilage at the junction of the rib and sternum. Over the next several months she was treated on a regular basis by Dr. Moore who diagnosed anxiety, hyperventilation and cervical sprain. Between November and February her principal complaint was anterior chest wall pain aggravated by deep breathing and bending and Dr. Moore continued to diagnose costochondritis and anxiety. During this period of time she saw Dr. Walter Brent, an orthopedist, and Dr. Kenneth Vogel, a neurological surgeon. Both prescribed various medications and Dr. Vo-gel diagnosed costochondritis. On February 16, 1975, she was treated at the emergency room for severe chest pain and on June 16, when Dr. Moore examined her he diagnosed anxiety, hyperventilation and costochondritis. He continued to see plaintiff but by February, 1976, he could find no reason for the pains which she still described in the right costochondial area. In May she suffered an occurrence of substernal pain with radiation into the left shoulder and nausea leading to her hospitalization for ten days under the care of Drs. Reed and Bienvenu. On at least two occasions, once in March, 1975, and again in May, 1976, she had bouts of atrial fibrillation. Cardiac enzymes and electrocardiograms done on plaintiff were always normal, and even when a stress test was administered the electrocardiogram was normal, although the test was not run to a conclusion because plaintiff began to feel weak and dizzy.

Plaintiff was next treated by Dr. Robert G. Font and was under his care for over a year. Plaintiff did not call him as a witness and the record contains no medical report related to his treatment except for three records of hospitalization at Hotel Dieu: From September 24 to October 2, 1976, January 10 to January 15, 1977, and April 4 to April 6, 1977. The value of these hospital records for our purposes is questionable because they were not introduced as certified copies pursuant to R.S. 13:3714 but rather by stipulation between counsel but with the qualification by defendants and the stated understanding of the trial court that any conclusion or opinions in the hospital records would not be considered in evidence. In any event, having gotten no relief from her chest pains while under Dr. Font’s care she consulted Dr. Mario Blanco, an internist in Miami, Florida, who referred her to Dr. Humberto Machado, a cardiologist.

Dr. Machado gave the following testimony: He first saw plaintiff on May 20 and on May 23 he performed an echocardiogram. This indicated a thickening of the pericardium and a fluid accumulation between the pericardium and the heart muscle. The heart rhythm was abnormal, in a condition of atrial fibrillation. On the basis of his clinical tests he diagnosed pericardial disease and effusion as well as organic heart disease. For the former he recommended a surgical biopsy of the pericardium and for the latter condition, he arranged for cardiac catheterization. The catheterization revealed that plaintiff had coronary artery disease consisting of a single lesion in the left anterior descending branch of the coronary artery. Because of the lesion’s location and the fact that only a single vessel was involved Dr. Machado concluded .that it was caused by blunt cardiac trauma as opposed to arterial sclerosis. The pericardial biopsy was performed by Dr. Robert Sherman, a cardiovascular surgeon, and the pathology report confirmed pericarditis. Dr. Machado regarded these as separate findings, both caused by trauma in the accident of August, 1974.

Dr. Sherman testified as follows: In performing the biopsy on the pericardium it appeared to be normal. Some excess fluid was found in the pericardial space which might be caused by inflammation or by inefficient functioning of the heart itself. He made a larger cut in the pericardium than was usual for a biopsy in order to permit drainage into the chest cavity. During the procedure, he examined the heart itself and found a tiny scar on the wall of the heart which was probably due to the artery blockage. He thought it possible that the blow to the chest could cause damage to the artery, but the blow would have to be severe considering the anatomical protection around the heart. He would not express a firm opinion that plaintiff had pericarditis because his function as a surgeon was to make the biopsy and then leave the diagnosis to the pathologist who examined the tissue. However, he explained that the biopsy would serve not only a diagnostic purpose but also a therapeutic purpose since it would provide for drainage of fluid in the future.

According to plaintiff she had no more pain in the chest after the surgery was performed by Dr. Sherman except on one occasion when she had lifted a heavy suitcase and experienced pain. However, she continued to have irregular heart beats which led her to consult a Dr. Dhurandhar, who likewise did not testify but who admitted her to Touro Infirmary Hospital between February 17 and February 23, 1978. The certified copy of the record is in evidence in accordance with R.S. 13:3714. It shows that her pain was much less severe since the time of her operation until the morning of admission when she had an onset of severe pain, diagnosed as angina.

At the conclusion of the trial before a Commissioner, he provided the court with a lengthy report of his findings and the following conclusions:

“After considering all evidence presented the Court is of the opinion that it remains as uncertain that plaintiff had pericardi-tis. This determination was diagnostically made by Dr. Machado from a pathology report. But neither the pathologist who performed the pericardial biopsy nor the cardiology specialist who performed the cardiac catheterization were produced as witnesses. In contrast, Dr. Sherman, who performed the operation to determine whether or not plaintiff did have pericar-ditis, made it quite clear in his testimony that pericarditis was not his diagnosis, and that his interpretation of the microscopic diagnosis was that the pericardium was essentially normal.
The Court is of the opinion that the most positive objective evidence of cardiac contusion is a change in heart activity and that this would have been evidenced by the tests taken during plaintiff’s first hospitalization following the mini-bus incident. From the evidence presented it must be concluded that upon her initial hospitalization in September of 1974, there were no indications from electrocardiograms taken that plaintiff had intrinsic heart disease. And during that hospitalization, in order to determine if there was any damage to the heart muscle, serial enzymes were obtained over a three day period. These were always normal. Prior to her discharge a stress test for three minutes and five seconds showed no changes on the electrocardiogram, no segments of depression and no irregularity of the heartbeat.
The Court finds that plaintiff, on August 15, 1974, sustained soft tissue injury to her chest, contusion of her right knee and hand.
The plaintiff husband should recover medical expenses incurred through the hospitalization of October 9, 1974, amounting to $2,279.05.
The plaintiff wife should recover in damages for her injuries, pain and suffering and for some ten weeks of disability, resulted from the mini-bus incident, the sum of $4,000.00.”

We readily agree with the Commissioner that plaintiff did not establish to a reasonable degree of certainty that the obstructed or damaged artery was caused by the accident. While Dr. Machado was quite definite in his opinion of traumatic cause, Dr. Moore, also a cardiologist, expressed the opinion that Dr. Machado’s reasoning was fallacious and that trauma would be at the bottom of the list of possibilities for a cause of this condition. Considering that these two medical specialists were of relatively equal professional ability and experience, and their opinions were diametrically opposed to each other, we are not in a better position than the Commissioner was to resolve the conflict, and we leave his finding undisturbed with the result that plaintiff is not entitled to recover for the blocked artery or for the scar on the heart which probably resulted from the damaged artery. All of the symptoms plaintiff had after the pericardial biopsy in May, 1977, are attributable to angina resulting from the blocked artery for which plaintiff is not entitled to recover.

The other conclusions of the Commissioner have provided us with some difficulty. He limited recovery for pain and suffering and spoke of ten weeks of disability in connection therewith, but this conclusion is not supported by the record. Dr. Moore, as late as June, 1975, diagnosed cos-tochondritis based on symptoms and findings which continued from the time of her first visit. Notably the Commissioner did not even mention costochondritis in his report, so he may have overlooked this aspect of plaintiff’s condition entirely in reaching his conclusions. Since the record does not support the award for only ten weeks’ duration of suffering and disability, we conclude that this was a manifestly erroneous finding and that plaintiffs are entitled to recover general damages for pain and suffering and medical expenses, at least until June, 1975, based on the costochondritis.

The final question is with respect to the Commissioner’s rejection of plaintiff’s claim for damages because of the pericarditis. He was not convinced that plaintiff ever had pericarditis and he dismissed Dr. Ma-chado’s opinion as depending upon the report of a pathologist who was not produced as a witness.

However, this conclusion overlooks the fact that Dr. Machado clinically diagnosed pericarditis before the biopsy was run. He testified that he performed an echocardio-gram which indicated a thickening of the pericardium and a fluid collection between the pericardium and the heart muscle, both symptoms of pericarditis. Furthermore, he found atrial fibrillation which had also been found on two occasions by Dr. Moore, and he explained that fibrillation is the result of pericarditis. The pathologist’s report simply confirmed his earlier opinion. Furthermore, under the circumstances of the case we are not inclined to hold that this particular report was inadmissible.

In the first place the report standing alone is meaningless and proves nothing. After giving the volume, color and consistency of the fluid examined it contains the following comment: “There are numerous lymphocytes, macrophages and mesothelial cells present.” There was no further opinion or interpretation in the report.

Dr. Machado testified, over the objection of defendants, lymphocytes are a type of white cells seen in inflammatory processes and their presence with the macrophages and mesothelial cells indicated inflammation of the pericardium.

Had the pathologist’s report contained any diagnostic opinions it would be clearly inadmissible but it simply records the microscopic findings as to the sample.

The hearsay rule serves the interests of justice by guaranteeing to a party the right of confrontation and cross examination. Therefore, it seems appropriate to consider what, in all probability, would have been the result of cross examining this pathologist. The deposition of Dr. Machado was taken over a year after the pathologist made his report. In all probability the deposition of the pathologist taken at the same time would have resulted in his testimony that he has no recollection of this particular specimen of fluid and his simply repeating the words of the report.

Finally, we are influenced by the fact that Dr. Machado’s deposition was taken in Miami where he and the pathologist practiced. At the time of the trial the pathologist was probably not subject to subpoena. The objection to the pathologist’s report was made during the deposition and thereby perpetuated, but the Commissioner did not make a specific ruling on the objection. Had he done so plaintiffs could have, at least, asked for a continuance or arranged to take the pathologist’s deposition or even propounded written interrogations to him for inclusion in the record. Instead, nothing was said about the report of the objection until the Commissioner issued his report after the trial.

We believe our conclusion that the report was admissible under all these circumstances is consistent with prevailing jurisprudence. See the Annotation in 19 ALR 3rd 1008.

Dr. Machado’s testimony that plaintiff had pericarditis was not contradicted. Dr. Sherman did not say that plaintiff did not have pericarditis. He said that his function was to perform a biopsy for diagnostic purposes and would defer to the opinion of the pathologist who examined the tissue. Nevertheless, he testified that there was an excessive amount of fluid in the pericardial cavity, an abnormal condition, but that plaintiff had only a minimal degree of pericarditis, if any. Furthermore, Dr. Sherman’s testimony that the opening remaining in the pericardium after the biopsy would result in continued drainage of fluid from the cavity, and plaintiff’s testimony that she had no more pain following the operation tends to prove that she had pericarditis, this caused pain, and Dr. Sherman’s operation alleviated that pain. Consequently, we have concluded that plaintiff is entitled to recover damages for pain and suffering and expenses from the pericardi-tis.

Accordingly, the judgment is affirmed but amended to increase the judgment in favor of plaintiff Thomas J. Bou to the sum of $17,312.63, and to increase the judgment in favor of Mrs. Bou plaintiff, to the sum of $25,000 against the defendants jointly and in solido with legal interest from date of judicial demand and all costs.

AFFIRMED AND AMENDED.

      . This includes the following expenses:
      Ochsner Clinic & Hospital $ 3,773.66
      Hotel Dieu 2,302.69
      American Hospital 5,386.44
      Hialeah Hospital 1,784.70
      Hialeah Medical Center 225.00

        East Jefferson Hospital 103.00
      Brpwne-McHardy Clinic 146.00
      Dr. Machado 235.00
      Dr. Sherman 1,050.00
      Dr. Barrera 110.00
      Dr. Font 295.00
      Dr. Wells 889.00
      Dr. Richter 155.00
      Dr. Unkauf 157.50
      Dr. Brent 45.00
      Dr. Vogel 100.00
      Prescription Drugs 554.64 Total $17,312.63


text:
    Katherine F. Salvant, Wife of/and James A. SALVANT v. Emily P. FRITCHUE.
    No. 10624.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1979.
    Writ Refused March 3, 1980.
    George W. Giacobbe, Kenner, for defendant-appellant Emily P. Fritchue.
    Walter R. Fitzpatrick, Jr., New Orleans, for third-party defendants-appellees Helen Schmidt and Clyde L. Newell.
    Kerry P. Camarata, Metairie, for plaintiffs-appellees.
    Before BOUTALL, SCHOTT, JJ., and JOHN T. HOOD, Jr., J., Assigned.
   SCHOTT, Judge.

Defendant, Emily P. Fritchue, has appealed from a judgment in favor of plaintiffs, Mr. and Mrs. James A. Salvant, for $4400 plus attorney’s fees based upon defendant’s breach of contract to purchase real estate from plaintiffs. The issue is plaintiffs’ entitlement to a judgment for damages as a matter of law under the facts found by the trial judge.

On June 8, 1977, defendant signed an offer to purchase plaintiffs’ property for $44,000. The offer which was obtained by real estate agent Helen Schmidt contained the following pertinent provisions:

“Upon acceptance of this offer, vendor and purchaser shall be bound by all its terms and conditions and purchaser becomes obligated to deposit with seller’s agent immediately 10% of the purchase price, $4,400.00, amounting to $1,000.00 cash & $3,400.00 by demand note, and failure to do so shall not void this agreement but shall be considered as a breach thereof and seller shall have the right, at his option, to demand liquidated damages equal to the amount of the deposit or specific performance and purchaser shall, in either event, be liable for agent’s commission, attorney’s fees and costs.” ******
“In the event the purchaser fails to comply with this agreement within the time specified, the seller shall have the right to declare the deposit, ipso-facto, forfeited, without formality beyond tender of title to purchaser; or the seller may demand specific performance.”
******
“This offer remains binding and irrevocable through Thursday, June 9, 1977.”

On the evening of June 8 when the agent presented the offer to plaintiffs they immediately accepted it.

Mrs. Schmidt testified that when she notified defendant of plaintiffs’ acceptance and requested the deposit defendant informed her that she changed her mind about buying the property and was looking for another house. According to defendant, Mrs. Schmidt took the offer with the understanding that it would not be submitted to plaintiffs since she (defendant) was considering the purchase of another house; and while she (defendant) was talking to another real estate agent about the purchase of the second house later that afternoon she called Mrs. Schmidt and was reassured that she was free to purchase the other house and that she (Mrs. Schmidt) would simply tear up the offer to purchase plaintiffs’ house. This conflict was specifically resolved by the trial judge in favor of Mrs. Schmidt as follows:

“This Court believes the testimony of Helen Schmidt that on the evening of June 8, 1977 she phoned defendant Emily P. Fritchue and advised her that her offer to purchase was accepted by the Salvants, plaintiffs herein, and thereupon demanded the stipulated deposit pursuant to the terms of the agreement.
In this telephone conversation, defendant Emily P. Fritchue responded she did not consider the agreement a binding agreement and she was withdrawing her offer and had no intention of buying the Trafalgar Street property. Several days later defendant Emily P. Fritchue entered into an agreement to buy another residence.”

Plaintiff, Mr. Salvant, gave the following testimony in reply to the question as to what happened after Mrs. Schmidt was informed by defendant that she would not make the deposit:

“I asked Helen — I said, ‘Now, what do we do?’ She said, ‘I don’t know. I’ve never had this happen before.’ And she said, ‘I’ll have to talk to Mr. Newell about it.’ And I don’t know for sure if Helen called me back that night or if it was the next day, but she said she was going to call Mrs. Fritchue and tell her that we would sue her if she did not, you know, live up to the bargain. And we left it in their hands to decide what would happen. You know, to negotiate it and see what would happen, and then the whole thing just fell through.”

Nonetheless, no further contact was made with defendant until on November 4 this suit was filed. Immediately after the telephone conversation plaintiffs authorized Mrs. Schmidt to continue in her efforts to sell the property. They accepted another offer on July 30 which was subsequently revised and resubmitted on August 12.

On the basis of these facts, the trial court reached the following conclusions:

“A putting in default under these facts would have been vain and useless as defendant Fritchue acknowledgedly was in the market solely to purchase a residence; this she did when several days after her repudiation of her agreement to purchase Trafalgar Street she entered into another agreement to buy a residence elsewhere. A putting into default was therefore unnecessary as a condition precedent to a suit for liquidated damages, which plaintiffs have opted to pursue under the remedies afforded by the agreement (line 31 which defendant Emily F. Fritchue breached.”

We do not agree with the trial judge that these circumstances as a matter of law obviated the necessity for any further action on plaintiffs’ part to put defendant in default.

The trial court relied principally on Lawton v. Louisiana Pacific Corporation, 344 So.2d 1129 (La.App. 3rd Cir. 1977) for the general proposition that anticipatory breach of contract is actionable in Louisiana and a placing in default is unnecessary where the circumstances indicate that such would be a vain and useless gesture on the part of the obligee. However, the case is distinguishable in that plaintiff wrote a letter to defendant demanding performance and defendant replied in a letter stating that it did not consider the contract valid. Furthermore, in the instant case the contract sued on contains language which obliged plaintiffs to place defendant in default:

“In the event the purchaser fails to comply with this agreement within the time specified, the seller shall have the right to declare the deposit, ipso facto, forfeited without formality beyond tender of title to purchaser; or the seller may demand specific performance.” (Emphasis supplied)

In Becker v. Johnson, 350 So.2d 1259 (La. App. 4th Cir. 1977) the following was said:

“Plaintiffs nevertheless neither pleaded nor proved the putting in default required both by general law, C.C. 1933, and (as to sellers’ right) the agreement itself. (Under the agreement the seller may declare the deposit forfeited ‘without formality beyond tender of title to purchase.’ [This] tender is a prerequisite even if — as the evidence may suggest— the purchaser gave some indefinite verbal indication he did not want to purchase. Schuler v. A. K. Roy, Inc., La.App.Orl. 1953, 65 So.2d 333.) Accordingly plaintiff sellers are not entitled to declare the deposit forfeited.”

In Heatherly v. Rosenberg, 372 So.2d 766 (La.App. 4th Cir. 1979) it was held that a letter by plaintiff’s attorney to defendants advising them that the act of sale would be passed before the deadline was sufficient to constitute a tender of title under LSA-C.C. Art. 1911(2) since the letter was a “demand in writing” as required by the article.

In Kraft v. Baker, 377 So.2d 871 (La.App. 4th Cir. 1979) the court made the following pertinent observation:

“The apparent purpose for the contractual requirement of tender of title by the seller is to provide the buyer with an explicit opportunity to comply with his contractual obligations or to declare expressly or implicitly his refusal to do so, for whatever reasons. By providing notice of a definite and reasonable time and place for the sale and by presenting himself at that time and place (with his wife available and the formal act also available within a matter of minutes), the seller has fulfilled the purpose and the spirit of the contractual requirement.”

We have thus concluded that defendant’s verbal statement to Mrs. Schmidt that she would not make the deposit and buy the property did not dispense plaintiffs from taking some action by way of tender of title or at least a written demand before causing defendant to forfeit her deposit.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of defendant, Emily P. Frit-chue, and against plaintiffs, Katherine F. Salvant and James Salvant, dismissing their suit at their cost.

REVERSED AND RENDERED.


text:
    SUCCESSION of Thomas A. WILLIAMS. SUCCESSION of Mrs. Otelia Judice WILLIAMS.
    Nos. 10626, 10717.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1979.
    Writ Refused March 3, 1980.
    James G. Derbes, Derbes & Derbes, New Orleans, for opponents-appellants Patricia E. Williams, Dana E. Williams and Ann W. Bruyere.
    Leon S. Cahn, Conrad Meyer, III, Robert R. Rainold, New Orleans, for testamentary executor-appellee Whitney National Bank of New Orleans.
    Before BOUTALL and SCHOTT, JJ., and JOHN T. HOOD, Jr., J., Assigned.
   SCHOTT, Judge.

This is an appeal by residuary legatees from a judgment dismissing their opposition to the executor’s first account and tableau of distribution. The only issue is whether the amount of the succession’s attorney’s fee is excessive.

Thomas A. Williams died in December, 1973, survived by his widow Otelia Williams. In his last will he left his property in trust for the benefit of his daughter, Patricia Williams, and her two children, Dana Williams and Ann Bruyere, subject to usufruct in favor of his widow. His succession was administered by his widow as executrix and culminated with a judgment of possession signed in May, 1975. Otelia Williams died on November 27, 1976. In her last will she also left her property in trust for the benefit of her daughter Patricia and the two grandchildren. She appointed the Whitney National Bank executor and trustee and Mr. Leon S. Cahn attorney for her succession. In August, 1977, Whitney filed its first account and tableau proposing to pay Mr. Cahn’s fee of $24,500 prompting the opposition now on appeal as well as oppositions to accountant’s fees and an allowance to Mr. Cahn for court costs. An opposition was also filed to an account of the Whitney Bank in its capacity as trustee in the succession of Mr. Williams, and all matters were consolidated for trial. While all of these matters were decided adversely to appellants they have confined this appeal to their attack on Mr. Cahn’s attorney’s fee.

Mr. Cahn’s fee was 5% of the $497,000 value of Mrs. Williams’ estate. He testified that in his fifty years of law practice he had not made it a practice to keep records of time spent on succession matters but generally charged a percentage fee based on the value of the estate. However, he began to keep time records when this opposition was filed in September, 1977. These showed 47.5 hours spent until the date of the first trial date in March, 1978. He estimated that he would spend another 25 hours of time until the succession was completed, and that he had spent approximately 300 hours from the time of Mrs. Williams’ death until the date of the filing- of the oppositions. He admitted that this was a “guess” on his part. He stated that his hourly rate for services was $100. Two attorneys called by Mr. Cahn as expert witnesses, and another called by appellants, agreed that this hourly rate was appropriate.

Under the jurisprudence, the appropriate attorney’s fee in the administration of a succession depends upon the facts and circumstances of each case. In estimating the value of the attorney’s services consideration is given to the responsibility incurred, the extent and character of the work performed, the importance of the questions presented, the amount involved, the success attained and the legal knowledge, attainments and skill of counsel. Succession of D’Antoni, 342 So.2d 1281 (La. App. 4th Cir. 1977), Succession of Gilmore, 239 So.2d 462 (La.App. 4th Cir. 1970), Succession of Weil, 205 La. 214, 17 So.2d 255 (La.1944), Peltier v. Thibodaux, 175 La. 1026, 144 So. 903 (1932), Hunt v. Hill, 138 La. 583, 70 So. 522 (La.1915).

These cases, and many others which need not be cited, readily „ demonstrate that the attorney’s fee in a succession is not susceptible to simply mathematical computation; the fact that the fee at issue here is exactly 5% of the estate is of little or no moment in the resolution of the controversy. The various factors to be considered by the court in deciding the attorney’s fee are so nebulous and variable that much discretion is vested with the trial judge in making the decision. Succession of D’Anto-ni, supra. Consequently, appellants have the burden in this court of establishing the judgment of the trial court constituted an abuse of that discretion.

The crux of appellants’ argument is that this succession was simple, or relatively uncomplicated, so that a 5% fee is excessive under the jurisprudence, and Mr. Cahn’s estimate of 300 hours must be erroneous since it would not take 300 hours for an attorney of Mr. Cahn’s experience and ability to handle such a simple succession. The trial judge was apparently unconvinced by this argument and his decision is supported by the testimony of Mr. Cahn, some highlights of which are as follows:

Along with the usual preparation and filing- of pleadings which are a part of the record, such as the probate of the will, confirmation of the executor and preparation and filing of the descriptive list and various orders during the administration, much time was spent in gaining access to decedent’s personal effects, including her bank box, the location of some securities, the identification and the valuation of a claim in connection with an annuity policy, the identification and proper legal treatment of various sums advanced to decedent’s grandchildren, the proper legal treatment of various checks written by decedent to her grandchildren, decisions as to disposition of certain securities in order to secure the cash necessary for the payment of taxes and expenses of administration, apportionment of taxes and handling of a particular legacy in the amount of $10,000. The establishment of the multiple trusts provided for in the will was complex and involved so as to make a fair and equitable distribution of the assets among the trusts. Finally, the entire matter was unduly complicated because of the refusal on the part of decedent’s daughter and grandchildren to cooperate at any stage of the proceedings, making it necessary for him to spend an inordinate amount of time seeking out information which should have been readily available had any spirit of cooperation existed.

We are unable to dismiss Mr. Cahn’s description of his work, of which the foregoing is only a capsule, as work on a simple or uncomplicated succession. Furthermore, we are impressed with Mr. Cahn’s great experience, ability and integrity. His testimony that he spent approximately 300 hours from the date of decedent’s death until the oppositions were filed, if not reasonably accurate, is surely not a gross overstatement. Adding this estimate to his recorded 47 hours of time from the date of the oppositions until the trial, and his estimate of 25 hours to complete the succession, his fee of $24,500 for 372 hours is considerably less than the $100 per hour figure which is not questioned as a reasonable rate. Even if his estimate was over stated by more than one-third the fee he claims is still in order.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    AMERICAN HOME ASSURANCE COMPANY v. COMMERCIAL UNION ASSURANCE COMPANY.
    No. 10790.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1979.
    Rehearing Denied Feb. 20, 1980.
    Frank M. Adkins, Adams & Reese, New Orleans, for plaintiff-appellant.
    Steven M. Lozes, Drury & Lozes, New Orleans, for Commercial Union Assur. Co.
    Before BOUTALL, and SCHOTT, JJ., and JOHN T. HOOD, Jr., Assigned Judge.
   SCHOTT, Judge.

American Home Assurance Company has appealed from a summary judgment dismissing its claim against Commercial Union Assurance Company for $62,500 appellant paid to two injured workmen in settlement of their claim against executive officers who were insured against public liability by appellant and appellee. Appellant provided excess insurance over the primary coverage up to $300,000, provided by appellee.

After suing the executive officers and appellee, the workmen settled their claims with appellee for $214,000, reserving their right to continue their claim against the executive officers and appellant for amounts over and above the appellee’s $300,000 primary limits. Thereupon appellant assumed the defense of the executive officers in the suit and was faced with considerable exposure prompting it to make a settlement with the workmen. Appellant takes the position that its payment to the workmen fell within the limits of appellee’s —the primary insurer’s — policy, so that it is entitled to recovery under a theory of either subrogation or unjust enrichment.

In support of its subrogation theory appellant relies on Maryland Casualty Co. v. Marquette Casualty Co., 143 So.2d 249 (La. App. 4th Cir. 1962). In this case, Marquette was the primary insurer of Gulf Engineering Company with $5,000 limits. Maryland was Gulf’s excess insurer. Sued for over $400,000 Gulf called on Marquette to defend, was refused, and then called on Maryland to defend. The suit was eventually compromised for $4,375 with Marquette contributing $4,125 and Maryland $250. Had Maryland not contributed, Gulf would not have been included in plaintiff’s release. Maryland claimed the $250 against Marquette plus the cost it incurred in defending Gulf.

The court’s decision in Maryland’s favor was grounded on the fact that Marquette had the primary duty to defend Gulf but forced Maryland to assume Marquette’s obligation. Marquette abandoned Gulf and Maryland’s contribution of $250 not only secured Gulf’s release against liability but also freed Marquette of its obligation to defend Gulf. In the instant case the insureds were protected under the terms of the release from exposure up to $300,000 and the only exposure remaining was appellant’s, i. e., any amount in excess of $300,-000. Thus, unlike Maryland in the cited case, appellant did not pay anything in ap-pellee’s behalf and no basis for subrogation exists.

In any event, the Maryland v. Marquette case must yield to Futch v. Fidelity & Casualty Company, 246 La. 688, 166 So.2d 274 (1964). There the tort feasor was insured by Allstate for up to $5,000 per person and $10,000 per accident and by F & C for the same limits but as excess insurer over Allstate. Allstate settled with the two claimants for $6,000 and obtained releases for all potential defendants except F & C. The claimants proceeded with suit against F & C and were awarded a judgment for $1,893.70. F & C contended that its liability did not arise because the primary limits of Allstate were never exhausted, but the court reasoned:

“This proposition is without substance. Factually, Allstate has been released from all liability which simply means that it has been credited with its total primary coverage of $10,000. The circumstances that Allstate was able to settle its liability for $6,000 is of no consequence in determining the responsibility of F & C for excess coverage. Indeed, the trial judge evaluated the combined damages sustained by Janice Futch, Nan Tucker and Ann Tucker Stuckey at $11,893.70 or $1,893.70 over the $10,000 policy limit of Allstate. The judgments against F & C in favor of Ann Tucker Stuckey for $700 and in favor of Theos Futch for $1,193.70 conform with these findings.”

In the instant case, the only difference is that the case was settled by the excess insurer instead of the case proceeding to judgment. In making the payment to the injured workmen appellant settled its own liability, not appellee’s, and no basis for subrogation exists.

Likewise without merit is appellant’s release on enrichment lately discussed in Edmonston v. A-Second Mortgage Co. of Slidell, Inc., 289 So.2d 116 (La.1974). The first two necessary elements for the application of the doctrine are an enrichment to appel-lee and an impoverishment to appellant. Neither is present. We cannot agree that appellee was enriched when it settled a contested claim for an amount which was possibly in excess of the claim’s judgment value. As to appellant’s supposed impoverishment, it was on a risk in excess of $300,-000 up to $1,000,000 because it contracted for such and was paid premiums. The $62,-500 it paid was to settle only its own liability under its contract. This is not an impoverishment but simply a routine settlement of a disputed insurance claim.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.