author:
DIXON, Chief Justice.
     MARCUS, Justice

text:
    STATE of Louisiana v. Willie James CHANEY, Jr. STATE of Louisiana v. Chad WATSON.
    No. 66796.
    Supreme Court of Louisiana.
    May 19, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan S. Kemp, III, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
    William L. Brooks, Amite, for defendants-relators.
   DIXON, Chief Justice.

Willie James Chaney, Jr. and Chad Watson were arrested and incarcerated on December 17, 1979. On January 10, 1980— more than three weeks later — they appeared before a judge for the first time, and then for the purpose of a hearing on their applications for writs of habeas corpus. In their applications the prisoners alleged that they were unlawfully confined and they prayed for their release. The basis for their applications was C.Cr.P. 230.-1, which provides:

“A. The sheriff having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel. Saturdays, Sundays, and legal holidays shall be excluded in computing the seventy-two hour period referred to herein.
B. At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail.
C. If the arrested person is not brought before a judge in accordance with the provisions of Paragraph A of this Article, he shall be released forthwith.
D. The failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.”

The trial court denied their applications and this court granted writs to review that ruling.

There is no question that the letter of article 230.1 was violated. Chaney and Watson were not brought before a judge for the purpose of appointment of counsel within seventy-two hours from the time of their arrests. At the hearing on their habe-as corpus applications it was shown, however, that within this period both prisoners were interviewed by an investigator who is also an attorney, employed by the Public Defenders’ Office of the Twenty-first Judicial District. The investigator testified that it is his policy to interview all arrested persons within ninety-six hours of their incarceration, unless they are released on bond. The interview is designed to elicit information about the circumstances of the arrest (that is, whether the prisoner was advised of his rights, made any confessions or inculpatory statements, whether some type of search was involved, whether there were co-defendants or witnesses) and about the prisoner’s prior record and current needs. At the interview the investigator also informs the prisoner of the amount of bond that has been set and determines whether he can meet the bond or whether a bond reduction hearing will be necessary. After the information obtained by the interview is conveyed to the Public Defenders’ Office in Amite, attorneys in that office may file for a hearing to set or reduce bond before they are officially appointed to represent an indigent defendant. On the basis of this testimony, the trial judge concluded that “the spirit of Article 230.1 has been more than fulfilled,” and he denied the writs of habeas corpus.

The trial judge was certainly correct in commending the Twenty-first Judicial District Public Defenders’ Office for its efficiency and proficiency. We cannot agree, however, that mere fulfillment of the “spirit” of a statutory provision constitutes adequate compliance with the statute. In State v. Murray, 222 La. 950, 953, 64 So.2d 230, 231 (1953), we stated that where the “language used in the applicable provision . is express and unequivocal . (it) is to be given effect as written.” The language of C.Cr.P. 230.1 is express and unequivocal: it commands the sheriff to bring an arrested person before a judge within seventy-two hours for the purpose of appointment of counsel, and it orders that the prisoner be released forthwith if this procedure is not observed. These mandates must be given effect as written.

We also cannot agree that the spirit of this provision was fulfilled when Chaney and Watson were interviewed, in jail, by an investigator-attorney. C.Cr.P. 230.1, Acts 1972 No. 700, was presented in 1972 as Senate Bill # 342, a bill for early appointment of counsel after arrest. Comments prepared in support of the bill referred to a study of the Louisiana court system, made in 1971-1972 by the Institute of Judicial Administration. The study showed that the average lapse of time between arrest and arraignment, the proceeding at which the court was required to appoint counsel by C.Cr.P. 512, was eighty days; in ten per cent of the cases the time lapse was between one hundred forty-five and three hundred thirty-four days. Statistical Appendix to A Study of the Louisiana Court System at 57 (1972). The study recommended that all cases be brought under early court control by means of a first judicial hearing, to be held within a maximum of seventy-two hours after arrest. Among the functions to be performed by this mandatory hearing were the appearance of the arrested person before a judicial officer, the appointment of counsel and the setting of bail. A Study of the Louisiana Court System at 111 (1972). The Comments also indicated that prompt appointment of counsel was required by the due process right to adequate trial preparation and by the need to protect the other constitutional rights of an accused. While the interviews conducted by the Public Defenders’ Office were a first step in this direction, it cannot be said that an accused’s rights are adequately protected, or that preparation of his case is actually begun, until an individual attorney is appointed to assume full responsibility for his representation.

It should also be noted that article 230.1 requires not only that counsel be appointed within seventy-two hours, but also that an arrested person be brought before a judge at this time. This mandatory “first appearance” before a member of the judiciary itself serves a highly significant function, forming a dividing line between an initial period during which an accused is detained by and under the sole control of the law enforcement branch of the criminal justice system, t and the time when responsibility for his custody is assumed by the judicial branch. Even when police officers are scrupulous in observing an arrested person’s rights, an accused’s prompt appearance before a judge enhances the protection afforded to him. This appearance must also be of significance to an accused, as symbolic of the involvement of a neutral official. In McNabb v. United States, 318 U.S. 332, 342-344, 63 S.Ct. 608, 614-615, 87 L.Ed. 819, 825-826 (1943), the United States Supreme Court addressed the necessity for a prompt first appearance before a judge in the following terms:

“. . . Similar legislation, requiring that arrested persons be promptly taken before a committing authority, appears on the statute books of nearly all the states.
The purpose of this impressively pervasive requirement of criminal procedure is plain. A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The lawful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection. A statute carrying such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application.”

In its compendium of state statutes providing for a prompt first appearance, the McNabb court included articles 79 and 80 of the 1932 Louisiana Code of Criminal Procedure. Those articles provided that any person arrested, whether with a warrant or without a warrant, should be brought before a judge “without unnecessary delay.” Article 82 further provided that the judge should remand the prisoner for trial or for preliminary examination if the accused was entitled to such an examination, should set bail and should sign a commitment specifying the offense charged, if bail was unavailable or could not be met.

The same provisions appeared in the Revised Statutes of 1950 as 15:79-82, but they were omitted from the 1966 Code of Criminal Procedure, apparently because the first appearance procedure had fallen into disuse. Note, 36 La.L.Rev. 1050 (1976). Instead, in article 228 the new code retained an earlier provision, formerly R.S. 15:77, which required that an arrested person be booked promptly; article 229 added the requirement that the booking officer inform him of certain rights. These booking procedures at least assured that a particular jail or police station would promptly become responsible for the custody of an accused, that his identity and the nature of the charge against him would be recorded, and that he would be notified of his rights. They were deficient, however, in that they failed to provide for his prompt appearance before a neutral member of the judicial branch. With the enactment of C.Cr.P. 230.1 six years later, this deficiency was corrected: an arrested person must now appear before a judge within seventy-two hours of his arrest. In the cases before us, Chaney and Watson were deprived of their right to a first appearance, and we cannot find that their interview with an investigator, conducted in jail, constituted compliance with the spirit of 230.1, much less with the statute’s express language.

Article 230.1 also states, in express and unequivocal language, that an arrested person “shall be released forthwith” if the state fails to comply with its provisions. Because prior cases involving violations of this article’s provisions have reached this court on appeals from convictions, and § D of 230.1 provides that failure to comply with its requirements has no effect on subsequent proceedings, we have not yet had an opportunity to address the interpretation of the sanction for non-compliance. However, in one of those cases, State v. Durio, 371 So.2d 1158, 1163 (La.1979), we made the following observation:

“. . . While the trial court’s denial of the motion to have defendant released may have been error, and may have prompted this Court to order him released had he sought supervisory writs to review the ruling at the time, we review this ruling after defendant has been convicted and sentenced. The issue at this point in the proceeding is now certainly moot.”

In interpreting the language of article 230.1, we also note that in State v. Johnson, 249 La. 950, 972, 192 So.2d 135, 144 (1966), this court had occasion to interpret articles 80 and 81 of the 1928 Code of Criminal Procedure, which provided that if an affidavit setting forth the charge against a prisoner was not made upon his prompt appearance before a judge, the judge should “order him forthwith to be discharged from custody.” The court found that upon failure to comply with these provisions, “the arrested [person] is entitled to be released.” Although article 230.1’s sanction is phrased in terms of “release” rather than “discharge from custody,” this difference is without significance; the Code of Criminal Procedure uses these terms interchangeably. See C.Cr.P. habeas corpus articles 361, 362 (“discharge from custody”) and 365, 369, 370 (“release”).

The state argues that even if we should find that the release sanction of the statute is applicable here, and that it means exactly what it says, this issue is moot as to these defendants because they have already been “released” on bail. In Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54, 65 (1975), the United States Supreme Court found that a prompt neutral determination of probable cause is required whenever restraint of an accused’s liberty is threatened, and it noted that “[e]ven pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty,” citing a federal statute which includes pretrial bail as an example of such burdensome conditions. Similarly, the Preliminary Statement to Title VIII, Bail, of the Code of Criminal Procedure acknowledges the fact that release on bail is a “conditional release.” We also note that in the study of Louisiana courts prepared by the Institute of Judicial Administration, that body recommended, with regard to the mandatory first appearance, that “[i]f charges have not been filed within the designated time, the defendant should be released from custody if he is detained or, if he has already been released, he should be relieved of his obligation on his bond if he so requests.” A Study of the Louisiana Court System at 110 (1972). There is no reason to believe that the redactors of article 230.1 meant to pull the teeth of the sanction provided for non-compliance by conditioning mandatory release on the ability to give bail. It is also impossible to believe that an accused who is unable to give bail should be granted a complete release, while an accused with greater resources is only entitled to a conditional release. That the sanction of release, when imposed by the Code of Criminal Procedure, is intended to be unconditional also appears clearly from C.Cr.P. 296, which provides that upon a finding of no probable cause at a preliminary examination, the court shall order the defendant’s release “from custody or bail.” This more specific language is not required by the situation generally contemplated by article 230.1, one in which there has not yet been an opportunity to set bail, but there is no doubt that the release required by that article is also an unconditional release, without bail.

For the reasons assigned, the judgment of the trial court denying petitioners’ applications for writs of habeas corpus is reversed. Petitioners are ordered discharged from custody and from bail forthwith.

MARCUS, J., concurs and assigns reasons.

WATSON, J., dissents.

MARCUS, Justice

(concurring).

I agree with the majority that, because the language used in La.Code Crim.P. art. 230,1 is express and unequivocal and must therefore be given effect as written, petitioners must be “released forthwith.” However, it should be noted that section (D) of art. 230.1 provides that “[t]he failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.” This language must also be given effect as written. Therefore, as soon as petitioners are released, they may be arrested again without a warrant if the arresting officer has probable cause to believe that petitioners have committed an offense. La.Code Crim.P. art. 213. I recognize this result is unsatisfactory; nevertheless, any change in the statute addresses itself to the legislature. Accordingly, I respectfully concur.

       Chief Judge FREDERICK STEPHEN ELLIS, Louisiana Court of Appeal, First Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . See also C.C, 13, which provides:' “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

      . As originally enacted in 1972, the statute established a period of six days and permitted its extension for an additional six days by written order of a judge “upon a showing of good cause.” It also provided for release upon noncompliance, "unless good cause is shown.” The 1977 amendment not only shortened the period to three days but also deleted the provision for an extension and the “good cause” exception to mandatory release. See note 3, infra.

      .In its original form, article 230.1 provided:
      “A. The sheriff having custody of an arrested person shall bring him promptly, and in any case within one hundred forty-four hours from the time of the arrest, before a judge for the purpose of appointment of counsel. Saturdays, Sundays, and legal holidays shall be excluded in computing the one hundred forty-four hour period referred to herein. The time limit prescribed herein may be extended by written order of a judge for an additional maximum period of one hundred and forty-four hours upon a showing of good cause. The order shall state the reason for the extension and shall be communicated to the arrested person.
      B.At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail.
      C. If the arrested person is not brought before a judge in accordance with the provisions of Subsection A of this article, he shall be released forthwith, unless good cause is shown.
      D. The failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.”

      . It should be noted that this mandatory appearance before a judge did not function to determine probable cause. This fact highlights the significance of the appearance before a member of the judiciary, in and of itself.

      . For cases finding this issue moot because it was raised in the context of subsequent proceedings, see State v. Guzman, 362 So.2d 744 (La.1978); State v. Gibson, 357 So.2d 1092 (La.1978); State v. Calloway, 324 So.2d 801 (La.1976); State v. Brown, 322 So.2d 211 (La.1975); State v. Epperson, 289 So.2d 495 (La. 1974). State v. Daigle, 353 So.2d 287 (La.1977), concerned a writ application complaining that the statutory period had elapsed without an appearance for appointment of counsel. However, counsel had been appointed at the time the writ application was filed. The application was denied by a majority of the court but three justices would have granted it. They were of the opinion that article 230.l’s unequivocal language required the defendant’s immediate release, despite the fact that an attorney had finally been appointed.
      In a supplemental brief on the issue of the sanction for non-compliance, the state cites statutes and cases from several other jurisdictions, but these are without relevance because the statutes do not provide specific sanctions for failure to comply, as the Louisiana statute does. Among the jurisdictions to which the state’s brief refers us, only Georgia provides that a person who is arrested without a warrant “shall be released” if he is not brought before an officer authorized to issue warrants within forty-eight hours; and the Georgia courts have interpreted this provision to mean release “from imprisonment or custody” until a warrant is obtained. Ga.Code Ann. § 27-212; Peters v. State, 115 Ga.App. 743, 156 S.E.2d 195, 197 (1967); Blake v. State, 109 Ga.App. 636, 137 S.E.2d 49 at 53 (1964).

      . At oral argument it was stated that both defendants had been released on bail.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Brogan YOUNG.
    No. 66702.
    Supreme Court of Louisiana.
    May 28, 1980.
    Rehearing Denied July 7, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Paul Katz, Robert F. Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM.

Affirmed.

DENNIS, J., dissents and would remand for a Brady-Agars hearing.


author: LEMMON, Judge,

text:
    Cecil SULLIVAN v. GULF STATE UTILITIES COMPANY and Boh Brothers Construction Company, Inc.
    No. 67453.
    Supreme Court of Louisiana.
    May 30, 1980.
   In Re: Cecil Sullivan, applying for Cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 19th Judicial District Court, 382 So.2d 184.

Denied.

WATSON, J., would grant the writ.

LEMMON, Judge,

dissents.

It is wrong to impose a duty on defendant to protect motorists from striking an object in the roadway which is virtually imperceptible at night and then to excuse defendant’s violation of that duty because the motorist did not see the object.


text:
    CADDO PARISH SCHOOL BOARD et al. v. BOARD OF ELECTIONS SUPERVISORS OF CADDO PARISH et al.
    No. 67175.
    Supreme Court of Louisiana.
    May 8, 1980.
    Fred H. Sutherland, M. Thomas Arcen-eaux, Beard, Arceneaux & Sutherland, Shreveport, for plaintiffs-applicants.
    William J. Guste, Jr., Atty. Gen., Donald E. Walter, David L. Smelley, Sp. Asst. At-tys. Gen., for defendants-respondents.
   DIXON, Chief Justice.

Plaintiffs in this case are the Caddo Parish School Board and several of its members. Defendants are the Governor, the Secretary of State, the Caddo Parish Clerk of Court, the Registrar of Voters for Caddo Parish and the Board of Elections Supervisors and its individual members. At issue are Act 506 of 1978 and Act 749 of 1979, identical provisions which require the Caddo Parish School Board to reapportion itself on January 1, 1980 in accordance with certain specified procedures. Plaintiffs petitioned for a declaratory judgment declaring these acts to be illegal, unconstitutional and ineffective, and asked that the defendants be enjoined from enforcing the acts. On cross-motions for summary judgment, the trial court found that there were no disputed issues of fact and that as a matter of law, legislative enactment of the statutes was authorized by the state Constitution.

From the trial court’s order granting summary judgment to defendants and dismissing plaintiffs’ suit, plaintiffs sought supervisory writs from this court and we granted their application.

The nature of the legislation under attack here can best be understood in the context of the entire constitutional and statutory scheme for the creation and composition of school boards, as this scheme has changed in recent years. Article 8, § 9(A) of the 1974 Constitution authorizes the legislature to create new parish school boards and to provide for the election of their members, while Article 8, § 10(A) provides for the recognition and regulation of those school board systems already in existence. Until recently, R.S. 17:51, 52 and 57, enacted under the authority of provisions of the 1921 Constitution, Article 12, §§ 10 and 11, which were almost identical to those cited above, provided the basic rules for the creation of school boards and the election of members: a parish school board for each parish; the election of members from districts consisting of police jury wards, one member to be elected for each police juror; the election of members in three groups, serving six year over-lapping terms; and certain special provisions for parishes containing municipalities. The New Orleans School Board had been specially created by legislative act by 1870 and its differential treatment continued under subsequent statutes. In 1946 legislation concerning the East Baton Rouge Parish School Board was enacted, providing for the number of members, the districts from which they were to be elected, and their terms of office. In 1952 similar legislation was enacted concerning the Jefferson Parish School Board, and in 1954 similar provisions were enacted concerning the school board of Caddo Parish. All of this legislation was subsequently amended, but the basic structure remained the same: general rules governed the composition of all parish school boards except those of Cad-do, East Baton Rouge, Jefferson and Orleans Parishes, for which special rules were provided.

During the decade of the 1960s it became apparent that these regulations for the election of parish school board members would eventually be scrutinized in the light of the constitutional principles enunciated by the United States Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) and Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). Those cases held that government officials, even when members of local governing bodies, may not be elected from districts of substantially unequal population. In order to comply with this new “one man, one vote” requirement, a group of new statutes was enacted in 1968, directing school boards to develop and execute plans for reapportionment in order to replace their current elective districts, usually police jury wards, with districts of substantially equal population.

R.S. 17:71.6 states that in providing for compliance with the requirements of recent United States Supreme Court decisions, “[i]t is also the purpose and intent of this Subpart to permit such school boards as much latitude and discretion as possible in accomplishing such reapportionment within the limits set forth herein.” That statute also provides that during the interim period between its effective date and the reapportionment of a school board, the present laws regarding the election of school board members shall remain in full force and effect.

R.S. 17:71.1-71.5 set forth the general rules for the reapportionment process. Each city and parish school board is authorized to reapportion itself into compact and contiguous districts of equal population, on the basis of either the 1970 census or a special census taken for this purpose; the number of school board members may be changed to no less than five and no more than the greater of fifteen and the number presently authorized; terms of office shall be six years except where they are presently four years; each board may fashion its own plan for maintaining the system of overlapping terms of office, if so desired by accomplishing reapportionment over a six year period; and each board is further authorized to reapportion itself on the basis of the 1980 census, thereafter no more often than every ten years.

R.S. 17:61.1, the statute at issue here, was enacted as Acts 1978, No. 506 and Acts 1979, No. 749 to provide specifically for the reapportionment of the school board of Cad-do Parish. It provides that on the date of the 1980 congressional elections, nine school board members are to be elected from nine single member districts whose parameters are to be established first by the proposal submitted by an independent firm commissioned by the incumbent board to formulate a reapportionment plan, then by a public hearing on that proposal. Members are to serve for four year terms; to provide for overlapping terms, five members elected in 1980 will serve for four years, the other four new members for two years. School board members elected pursuant to this procedure will take office on January 1, 1981. On that date, the offices of the eighteen incumbent members are to be vacated. Thereafter, the school board may reapportion itself no more often than every ten years, on the basis of the federal census. R.S. 17:62.

A comparison of the general reapportionment plan with the plan provided specifically and uniquely for Caddo Parish reveals significant differences. First, the Caddo Parish plan requires the removal from office on January 1, 1981 of the twelve incumbent members whose six year terms would otherwise have continued. In fact, it vacates the offices to which they were elected. The general plan, on the other hand, permits a school board to maintain its incumbent members in office by phasing in members from the newly drawn districts every two years, as the staggered terms of the predecessors expire. Second, the Caddo Parish plan provides for a mandatory number of districts and member representatives, while the general plan establishes only a minimum number and a maximum. Third, the Caddo Parish plan requires that public funds be spent to engage an independent firm to formulate a reapportionment proposal; under the general plan, a school board may simply utilize federal census data. Finally, the Caddo Parish plan requires. that reconstitution of the school board be accomplished by January 1, 1981. The general plan, on the other hand, permits a school board to change its composition over a period of six years from the time its apportionment plan is adopted. In these respects, the Caddo Parish plan affords little opportunity for the exercise of latitude and discretion by the present school board, one of the goals expressed by the general legislation.

With one exception, plaintiffs’ attack on this statute does not challenge these differences (and apparent inequities) in themselves. Rather, plaintiffs contend that the statute violates the constitutional prohibition against legislative enactment of local or special laws regulating the management of parish public schools, as provided by Article 3, § 12(A)(8). In order to evaluate this contention, it is necessary to determine, first, whether the legislation complained of does constitute a local or special law. In State v. Slay, 370 So.2d 508, 510 (La. 1979), we distinguished general laws from local or special laws in the following terms:

“. . .A statute is considered special or local if its restrictions can affect only a portion of the citizens or a fraction of the property embraced within the created classification. Davenport v. Hardy, 349 So.2d 858 (La. 1977); State ex rel. Miller v. Henderson, 329 So.2d 707 (La. 1976). A general law, on the other hand, ‘operates equally and uniformly upon all persons brought within the relations and circumstances for which it provides or operates equally upon all of a designated class, founded upon a reasonable and proper classification.’ State v. LaBauve, 359 So.2d 181, 182 (La. 1978).
However, the mere fact that a statute’s enforcement is limited to a particular locality does not by itself render the statute a local or special law, simply because the conditions under which it operates may not prevail in all localities. State v. LaBauve, supra; Davenport v. Hardy, supra. The salient characteristic of a special or local law is that it operates in one locality without the possibility of extended coverage to other areas if the requisite criteria of the statutory classification are determined to exist there, or that it affects only a certain number of persons within a class, and not all persons possessing the class characteristics. State ex rel. Miller v. Henderson, supra.

See also Johnson, Legislative Process, 36 La.L.Rev. 549 (1976); Comments, General and Special Laws in Louisiana, 16 La.L.Rev. 768 (1956). In Nomey v. State, 315 So.2d 709 (La. 1975), we found that a statute authorizing parishwide local option referen-da in twelve enumerated parishes, but not in the remaining parishes of the state, was a local law. Similarly, in State v. LaBauve, 359 So.2d 181, 183 (La. 1978), which involved a statute prohibiting the use of gill nets only in certain portions of Terrebonne and Lafourche Parishes, we found that “if its operation is limited solely by its specific designation of certain parishes, it must be considered a local law violative of our constitution.” The statute at issue refers only to and has effect only upon the school board of Caddo Parish. There is no doubt, therefore, that it is a local law.

A further question is presented by the fact that not all local or special laws are prohibited by the Constitution. Instead, Article 3, § 12 enumerates ten types of local or special laws which are reprobated. Other kinds of local or special laws may be enacted, but only after compliance with the provisions of Article 3, § 13 for publication of intent to introduce such laws a procedure which was in fact followed in introducing the legislation at issue. In the list of local laws which are totally prohibited, Article 3, § 12(8) specifies laws “[r]egulating the management of parish or city public schools, the building or repairing of parish or city schoolhouses, and the raising of money for such purposes.” The question, then, is whether a law which controls the composition of a school board by vacating its current offices and by specifying the number of members of which the new school board is to be comprised, the date of their election, and the length of their terms, is a law which regulates the management of the parish school system.

In answering this question we note, first, that the management of parish public schools is entrusted to school boards by R.S. 17:54 and 17:81-85. These statutes authorize school boards to elect school superintendents, to determine the number of schools and their location, and the number of teachers; to select teachers and fix the terms of their employment and their salaries; to secure funds for school operation; to recover for damages to school property; to appoint clerical, medical and maintenance staff and fix their salaries; and to conduct in-service educational programs for teachers. In addition, the school board president is empowered to sign all deeds and contracts for the schools. In Mendel v. Gennaro, 154 So.2d 531 (La.App. 4th Cir. 1963), the court of appeal found that the duties entrusted to school boards do constitute “management” of the schools and that a statute affecting school board membership does “regulate” such management. That holding was overruled in Jefferson Parish School Board v. Jefferson Parish Democratic Executive Committee, 246 La. 51, 163 So.2d 348 (1964). In that case, this court found that “management” concerns curricula, teaching methods, physical training, classroom procedures and scheduling, disciplinary methods, and some aspects of financing. The court also found, however, that a statute providing for the number of school board members and the procedure for their election was not one which controlled members of the school board in the performance of these management functions, and that the statute itself did not treat of the management of public schools. We agree with the Mendel and Jefferson Parish holdings in finding that a school board does indeed manage the public schools under its authority. We note, however, that to “regulate” is “to bring under the control of law or constituted authority.” Webster’s New International Dictionary, Second Edition, Unabridged, 1955. (Emphasis added). A statute which vacates an existing school board’s offices and dictates the number of new school board members and the process by which they are to be elected is one which determines the very constitution of that managing authority, thereby regulating the management functions. To this extent, the Jefferson Parish School Board case is overruled.

One final question is presented by Article 8, § 10(A) of the 1974 Constitution, which provides:

“Parish and city school board systems in existence on the effective date of this constitution are recognized, subject to control and supervision by the State Board of Elementary and Secondary Education and the power of the legislature to enact laws affecting them.”

As we have noted, the Caddo Parish School Board system was established by legislative act in 1954, so that it was in existence on the effective date of the 1974 Constitution. The meaning of this provision’s authorization of “laws affecting” such preexisting boards becomes clear when the provision is viewed in context. Article 8, § 9 empowers the legislature to create new school boards and to provide for the election of their members. Article 8, § 10(A) is therefore necessary in order to authorize the enactment of general legislation as it pertains to those school boards already in existence. This section does not, however, provide an exception to the express prohibition against local or special laws regulating the management of parish public schools, although its predecessor, Article 12, § 11 of the 1921 Constitution, did so provide:

“Municipal or parish school boards and systems now in existence by virtue of special or local legislative acts are hereby recognized, subject to control by and supervision of the State Board of Education, and the power of the Legislature to further control them by special laws.”

The Records of the Louisiana Constitutional Convention of 1973 Convention Transcripts indicate that this change in language was made without debate. We must therefore assume that the deletion of the prior exception to the prohibition against enactment of special laws brought special or local legislation concerning the Caddo Parish School Board within the ambit of that prohibition.

We find, therefore, that R.S. 17:61.1 was enacted in contravention of a constitutional prohibition and that it is null, void and without effect. We also find that defendants must be enjoined from enforcing this invalid statute. In State ex rel. Forsythe v. Ellis, 42 La.Ann. 1104, 8 So. 305 (1890), plaintiffs sought to enjoin an enumeration of population to be performed pursuant to a legislative act, allegedly unconstitutional, providing for the creation of a new parish. Defendants claimed that no court had the power to enjoin the execution of a legislative act of this nature, but this court rejected that contention, finding that any attempt to enforce a law which exceeds constitutional authority is a void exercise of power, which the courts can and must stop. Similarly, in City of Gretna v. Bailey, 140 La. 363, 367, 72 So. 996, 997 (1916), we stated that “[i]njunction is the proper remedy to restrain an officer from acting under an unconstitutional statute.”

The judgment of the court below is reversed, and there is now judgment in favor of plaintiffs and against defendants, enjoining them against enforcing R.S. 17:61.1 and 17:62, at defendants’ cost to the extent provided by law.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

In my view, Jefferson Parish School Board v. Jefferson Parish Democratic Executive Committee, 246 La. 51, 163 So. 2d 348 (1964), was correctly decided. Hence, I do not consider La. R.S. 17:61.1, which vacates an existing school board’s offices and dictates the number of new school board members and the process by which they are to be elected violates La. Const, art. 3, § 12(8)’s prohibition of local or special laws regulating the management of parish or city public schools. However, I consider the statute to be unconstitutional for other reasons. La. Const, art. 10, §§ 24-26 provide for impeachment, removal by suit, and recall. In my view, these are the only methods by which elected officials may be removed from office. La. R.S. 17:61.1 declares the Caddo Parish School Board offices to be vacated and in effect removes the officials elected to serve on it. This procedure is not authorized by the constitution. Therefore, its use must be enjoined by this court. Accordingly, I respectfully concur.

       Honorable EDWIN W. EDWARDS, Justice Ad Hoc, recused.

      . R.S. 17:61.1, Acts 1979, No. 749, provides:
      “Caddo Parish School Board; reapportionment; single-member districts; public hearing; terms of office; compensation, qualifications, vacancies
      A. Effective January 1, 1981, the offices of the members of the Caddo Parish School Board shall be vacated and the board shall be re-created and shall be composed of nine members elected from single-member districts. The Caddo Parish School Board shall adopt a reapportionment plan, as otherwise provided in this Section, to provide for such districts. The Caddo Parish School Board shall commission an independent firm to formulate a reapportionment plan, and is hereby authorized to expend its funds for this purpose. The proposed reapportionment plan required herein shall provide for nine single-member districts. Such districts shall be comprised of as equal population as practicable, utilizing the latest and recognized population data for Caddo Parish and the city of Shreveport, and shall be compact and contiguous.
      B. Prior to the adoption of an apportionment plan by the board, the Caddo Parish School Board shall order a public hearing on the proposed plan formulated by the independent firm and shall cause to be published in a newspaper published within the parish at least twenty days prior to the date of such hearing a public notice which shall include the day, time, and place of the public hearing, a general summary and map of the proposed plan, and the times and places where copies of the proposed plan shall be available for public inspection prior to the date of the hearing. Based on the plan formulated by the independent firm and on such hearings, the board shall adopt an apportionment plan for the election of the members of the board, which plan shall meet the criteria established in Subsection A hereof.
      C. The reapportionment plan adopted by the board pursuant to this Section shall become effective commencing with the election for school board members to be held at the time of the congressional elections in 1980. One member shall be elected from each of the nine single-member districts provided in such plan. Members so elected shall serve overlapping terms with five members being elected in 1980 to serve four-year terms and the remaining four members being elected in 1980 to serve two-year terms. Thereafter, all successors shall be elected to serve overlapping four-year terms.
      D. Members of the board in office on July 10, 1980, shall serve until January 1, 1981, at which time the terms of the members elected at the congressional elections in 1980 shall commence. The terms of the successors of the members taking office in 1980 shall commence on January 1, of the year following their election.
      E. Members of the Caddo Parish School Board shall receive the same remuneration, possess the same qualifications, and qualify as candidates for election in the same manner as is now or hereafter provided by law for members of other parish school boards. A vacancy occurring on the board shall be filled in the manner now or hereafter provided for filling of vacancies in other parish school boards.”

      . These acts are identical. Introduction of the 1979 bill was recommended by the Attorney General because presentation of the 1978 bill failed to comply with the notice procedures for permissible special or local legislation required by Article 3, § 12 of the Constitution.

      . An initial reapportionment, providing for the present eighteen member board, was accomplished in 1972 under order of the United States District Court for the Western District of Louisiana and was found valid and constitutional by that court. Plaintiffs contend that this statute therefore requires the school board to reapportion itself within eight years, while the general rule prohibits reapportionment at intervals of less than ten years. They also claim that the board had formulated plans to reapportion itself at the end of the statutory ten year period, in 1982, reducing its size to twelve members without truncating the terms of incumbent officers, and utilizing 1980 federal census data.

      . Plaintiffs contend that by vacating all school board offices on January 1, 1981, the statute reduces the compensation of members during the terms for which they were elected, in violation of Article 10, § 23 of the Constitution.

      . Article 3, § 12 of the 1974 Constitution provides:
      “Prohibited Local and Special Laws
      Section 12. (A) Prohibitions. Except as otherwise provided in this constitution, the legislature shall not pass a local or special law:
      (1) For the holding and conducting of elections, or fixing or changing the place of voting.
      (2) Changing the names of persons; authorizing the adoption or legitimation of children or the emancipation of minors; affecting the estates of minors or persons under disabilities; granting divorces; changing the law of descent or succession; giving effect to informal or invalid wills or deeds or to any illegal disposition of property.
      (3) Concerning any civil or criminal actions, including changing the venue in civil or criminal cases, or regulating the practice or jurisdiction of any court, or changing the rules of evidence in any judicial proceeding or inquiry before courts, or providing or changing methods for the collection of debts or the enforcement of judgments, or prescribing the effects of judicial sales.
      (4) Authorizing the laying out, opening, closing, altering, or maintaining of roads, highways, streets, or alleys; relating to ferries and bridges, or incorporating bridge or ferry companies, except for the erection of bridges crossing streams which form boundaries between this and any other state; authorizing the constructing of street passenger railroads in any incorporated town or city.

        (5) Exempting property from taxation; extending the time for the assessment or collection of taxes; relieving an assessor or collector of taxes from the performance of his official duties or of his sureties from liability; remitting fines, penalties, and forfeiture; refunding moneys legally paid into the treasury.
      (6) Regulating labor, trade, manufacturing, or agriculture; fixing the rate of interest.
      (7) Creating private corporations, or amending, renewing, extending, or explaining the charters thereof; granting to any private corporation, association, or individual any special or exclusive right, privilege, or immunity.
      (8) Regulating the management of parish or city public schools, the building or repairing of parish or city schoolhouses, and the raising of money for such purposes.
      (9) Legalizing the unauthorized or invalid acts of any officer, employee, or agent of the state, its agencies, or political subdivisions.
      (10) Defining any crime.
      (B) Additional Prohibition. The legislature shall not indirectly enact special or local laws by the partial repeal or suspension of a general law.”
      Similar provisions have appeared in the Constitutions of Louisiana since 1879.

      . We also take notice of the fact that the statute additionally violates Article 3, § 12(A)(1), supra note 5. It is a local or special law for the holding and conducting of schooi board elections, and there is no exception to this constitutional prohibition.

      . The situation before us here should be distinguished from that presented in Dubuisson v. Board of Supervisors of Election of Parish of St. Landry, 123 La. 443, 49 So. 15 (1909), in which this court found that injunction of a particular election was not an appropriate remedy. In Dubuisson, a legislative act provided for the creation of a new parish by majority vote, but the Constitution required a two-thirds vote of qualified electors for such a purpose. The court noted that an unconstitutional act may be enjoined when it is a statute having the force of law in itseif, but it found that the act before it was merely a legislative proposition which required ratification by popular vote. R.S. 17:61.1 is a statute which has the force of law in itself: current school board offices are vacated and new positions created by legislative fiat, and the 1980 election functions only to fill the legislatively created new positions.


author: STOKER, Judge.

text:
    The HOME INDEMNITY COMPANY, Plaintiff-Appellant, v. CENTRAL LOUISIANA ELECTRIC COMPANY, et al., Defendants-Appellees. TOLMAK, INC. v. SERVITRON, INC. and Home Indemnity Company.
    Nos. 7497, 7498.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearings Denied June 18, 1980.
    Scofield, Bergstedt, Gerard & Mount, Richard E. Gerard, Jr., Lake Charles, for intervenor-appellant.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for defendants-appel-lees.
    Raggio, Cappel, Chozen & Berniard, Richard A. Chozen, Lake Charles, for plaintiff-appellant.
    Before CUTRER, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This appeal involves two consolidated actions in which Tolmak, Inc., seeks indemnity or contribution from Central Louisiana Electric Company (CLECO) and its insurer, Continental Casualty Company, and from Servitron, Inc., and its insurer, The Home Indemnity Company. The Home Indemnity Company brought one of the suits, and Tol-mak, Inc., intervened in that suit against CLECO and Servitron, Inc., and their insurers. The other action was brought by Tol-mak, Inc., itself as principal plaintiff. The issues are:

(1) Whether Tolmak, Inc., may properly intervene to seek indemnity or contribution from CLECO and its insurer in the suit of The Home Indemnity Company v. Central Louisiana Electric Company (suit number 14,396 on the docket of the district court in Beauregard Parish and docket number 7497 in this Court of Appeal).

(2) Whether the original suit referred to in (1) above was abandoned on the ground that no steps were taken in its prosecution or defense within a five-year period. Resolution of this issue involves the further question of whether filing of the intervention was such a “step” in prosecution or defense that it would prevent the running of the five-year period.

Although two separate cases appear to be before us, and were consolidated in the trial court, and have traveled together to this court, the trial court rulings appealed from were made in the action bearing our docket number 7497 and the trial court docket number 14,396. Nothing is before us in the other suit which is entitled Tolmak, Inc. v. Servitron, Inc., et al., docket number 7498 on the docket of this court and docket number 17,049 in the trial court. This appeal deals entirely with procedural matters, and much of the factual background of the case consists of its procedural history.

PARTIES TO APPEAL

Upon joint petition of appeal in both actions filed by Tolmak, Inc., and The Home Indemnity Company, the trial court granted a devolutive appeal to both parties. Tr. 147-148 (appeal number 7497) and Tr. 85-86 (appeal number 7498). (See Footnote 2.) The appellees are CLECO and Continental Casualty Company.

FACTS

Clarence Pullard and Milton Johnson were injured on August 26, 1969, while working in Beauregard Parish as employees of Servitron, Inc. Servitron, Inc., was constructing a railroad line in pursuance of a contract with Tolmak, Inc. The Home Indemnity Company paid workmen’s compensation benefits to Clarence Pullard and Milton Johnson. Pullard brought a tort suit in the United States District Court in Texas against numerous parties. Judgment was rendered in that Texas federal suit against Tolmak, Inc., in the amount of $144,955.70. Tolmak, Inc., satisfied the judgment by paying Pullard $156,655.41. CLECO was not a party to the federal suit in Texas.

On August 21, 1970, The Home Indemnity Company filed suit number 14,396 in Beauregard Parish against CLECO to recover workmen’s compensation which Home had paid to Pullard on behalf of Servitron, Inc. While not important to the issues in this case, other parties were sued by Home in suit number 14,396. CLECO and Continental Casualty Company, insurer of CLE-CO, filed an answer to Home’s suit number 14,396. Certain other defendants were voluntarily dismissed on motion of Home on May 26, 1971. Tr. 16.

No further action occurred in suit number 14,396 until April 2,1975. On that date Tolmak, Inc., filed an intervention claiming indemnity or contribution from Servitron, Inc., The Home Indemnity Company (liability carrier for Servitron, Inc.) and CLECO. Also on April 2, 1975, Tolmak, Inc., filed suit number 17,049 in Beauregard Parish styled “Tolmak, Inc. v. Servitron, Inc. and Home Indemnity Company”. In that suit Tolmak, Inc., made claims for contractual indemnity, tort indemnity and tort contribution.

DEFENSES FILED IN RESPONSE TO THE CLAIMS OF TOLMAK, INC.

SUIT NUMBER 14,396

May 9, 1975:

CLECO filed an exception of prescription to the intervention of Tolmak, Inc. (Tr. 23)

June 11, 1975:

The Home Indemnity Company filed a motion for summary judgment as to the intervention of Tolmak, Inc. (Tr. 25)

SUIT NUMBER 17,049

June 11, 1975:

Servitron, Inc., and The Home Indemnity Company filed a motion for summary judgment. (Tr. 7)

(On October 26, 1976, the motions for summary judgment filed in the two suits on June 11, 1975, were denied by the trial court. Tr. 82 in the appeal number 7497 and Tr. 64 in appeal number 7498.)

SUIT NUMBER 14,396

August 8, 1977:

CLECO and Continental Casualty Company filed an answer and exception of prescription of one year (Tr. 91) in suit number 14,396 in response to a First Supplemental and Amending Petition filed by The Home Indemnity Company on August 2, 1977, for judgment over against CLECO and Continental in the event Tolmak, Inc., should be granted judgment on its intervention. (The claim for judgment over was made with reference to the intervention in suit number 14,396 and the separate suit represented by suit number 17,049.)

October 26, 1978:

CLECO and Continental Casualty Company filed the following defenses:

1. Exception of no cause of action “and/or” no right of action directed to the claims for judgment over filed by The Home Indemnity Company. (Tr. 129)

2. Exception of improper use of intervention procedure directed to Tolmak’s intervention. (Tr. 134)

3. Motion to dismiss the main demand of The Home Indemnity Company for lack of prosecution, that is, abandonment for five-years. (Tr. 136)

ACTION OF THE TRIAL COURT

On June 22, 1979, the trial court handed down written reasons for judgment (Tr. 140 in appeal number 7497 and Tr. 75 in appeal number 7498) and rendered judgment the same day in which the following rulings were given:

1. Granted the motion of CLECO and Continental to dismiss the main demand (in suit number 14,396) for lack of prosecution.

2. Sustained the exception of improper use of intervention procedure filed by CLE-CO.

3. Overruled the exception of prescription of one year filed by CLECO and Continental Casualty on August 8, 1978, to the intervention of Tolmak, Inc.

4. Overruled the exceptions of no right of action and no cause of action filed by CLECO.

ISSUES ON APPEAL

A joint appeal was taken in the consolidated suits by The Home Indemnity Company as plaintiff in suit number 14,396 and Tolmak, Inc., as intervenor in suit number 14,396 and plaintiff in suit number 17,049. (Tr. 147 in appeal number 7497 and Tr. 80 in appeal number 7498.)

Appellant Tolmak, Inc., set forth as specifications of error the trial court’s (1) dismissal of suit number 14,396 on the ground of lack of prosecution for five years and (2) dismissal of the intervention of Tolmak, Inc., as improper because it was unrelated to the main demand.

Appellant The Home Indemnity Company filed no brief in this court, and therefore set forth no specification of errors. By letter, counsel for Home advised this court that Home and Servitron, Inc., adopted the brief filed on behalf of appellant, Tolmak, Inc. (Servitron, Inc., is not an appellant.) Home evidently appeals from the dismissal of its suit number 14,396 on the ground of lack of prosecution.

No appeal or answer to the appeal was filed by CLECO or its insurer, Continental Casualty Company. CLECO and Continental were the only parties aggrieved by the overruling of the exception of prescription and the exception of no cause “and/or” no right of action. As these parties have not complained on appeal as to those trial court rulings, and those issues were not briefed by them, those issues are not before us. The brief of Tolmak, Inc., (adopted by Home Indemnity Company) addresses the one-year prescription issue, but, as the issue is not before us, we do not address it. We only address the questions of improper intervention and abandonment for lack of prosecution.

The net result of the intricate procedural history traced above is that we do not have any issues before us in suit number 17,049, appeal number 7498.

ISSUE OF IMPROPER USE OF INTERVENTION

Appellant, Tolmak, Inc., refers us to no authorities in its brief to support its right to intervene in the suit of The Home Indemnity. The trial court’s written reasons for judgment are limited to the following (Tr. 77 in appeal number 7498) on this question.

Home sued for recovery of compensation benefits it had paid, and based it upon subrogation rights. Tolmak’s claim on the other hand, is for recovery of the amount it was required to pay in settlement of the judgment secured in the tort action. That intervention is improper for the reason that it is unrelated to the main demand.

Article 1091 of the Louisiana Code of Civil Procedure provides as follows:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff’s demand; or
(3) Opposing both plaintiff and defendant.

Appellant’s brief on the right to intervene sets forth the following, which, as noted above, contains no citations of authority which would assist us in interpreting LSA-C.C.P. art. 1091:

Clarence Pullard’s claim against Tol-mak, Inc. arose by virtue of an alleged tort committed by Tolmak which resulted in injury to Pullard. As a result of the injury, Pullard was paid workman’s compensation benefits by his employer’s workman’s compensation carrier, The Home Indemnity Company. As a result of payment of those benefits, Home Indemnity was subrogated to the rights of Clarence Pullard against Tolmak, Inc., to the extent of those payments. Home Indemnity exercised its right of subrogation by filing Suit No. 14396 against Central Louisiana Electric Company. In that lawsuit, Home Indemnity alleged that CLECO was negligent and that its negligence was a proximate cause of the damages suffered by Clarence Pullard. Although CLECO was not named as a party defendant in Pullard’s federal suit in Texas, it was certainly amenable to suit in Beauregard Parish by either Pullard himself or The Home Indemnity Company to the extent of its subrogation.
After the judgment in the federal suit in Texas against Tolmak became final, Tolmak intervened in the pending lawsuit in Beauregard Parish in an effort to obtain contribution or indemnity from CLE-CO. The demands of The Home Indemnity Company and Tolmak, Inc., in Suit No. 14396 arose from the same accident and were both predicated on the same acts of negligence alleged to have been committed by CLECO. The trial court was in error in holding that the intervention was not related to the main demand.

The above is the sole argument offered by appellant on its right to intervene. The essence of appellant’s argument is contained in the second to last sentence. That argument is that Home’s subrogation claim and Tolmak’s claim for indemnity or contribution are founded on the same accident and the same acts of negligence allegedly committed by CLECO which caused injury to Clarence Pullen. We agree with this position as we shall demonstrate.

Appellee, CLECO, urges that resolution of the question should focus on the language of LSA-C.C.P. art. 1091 which requires that the third party’s intervention must seek “to enforce a right related to or connected with the object of the pending action.” One of the three forms through which this may be done is the first stated in Article 1091: “Joining with plaintiff in demanding the same or similar relief against the defendant.” (Emphasis supplied) The plaintiff is The Home Indemnity Company which seeks to recover from CLECO, in a tort suit, workmen’s compensation paid to the injured employee. CLECO’s liability rests upon any tort liability it may have for the employees’ damages resulting from injury. Tolmak was required to pay these damages in the Texas suit to the employee. Tolmak claims it is entitled to full indemnity in tort from CLECO as the party actually at fault under circumstances in which Tolmak was only technically or constructively at fault. Appalachian Corp. v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539 (La.1922). Tomak, Inc., also claims contractual rights to indemnity. Alternatively, Tolmak, Inc., claims CLECO would owe contribution as a joint tort feasor. LSA-C.C. art. 2103.

The question to be answered is: Did Tol-mak, Inc., in its intervention, join with the plaintiff (Home) in demanding the same or similar relief against CLECO? CLECO states it has found no cases covering the precise facts of this case. It urges, however, that we addressed a similar situation in Liberty Mutual Insurance Company v. Brawner, 353 So.2d 487 (La.App. 3rd Cir. 1977). CLECO points to certain dicta language in that case. That case did not involve an intervention or an interpretation of LSA-C.C.P. art. 1091. The issue was prescription of a claim for uninsured motorist benefits asserted in a suit filed earlier for property damages.

In the Brawner case, Stella Ardoin was a passenger in a vehicle owned by Bordelon Motors, Inc., and insured by Liberty Mutual Insurance Company. Liberty Mutual filed suit against the driver of the other vehicle involved, Brawner, asserting its subrogated claim for property damages. More than one year after the accident, Liberty Mutual amended its petition to seek recovery for uninsured motorist benefits paid to Ardoin. As the basis for one of its reasons for concluding that the amending petition was prescribed, this Court stated at page 491 as follows:

Assuming arguendo that Liberty Mutual became subrogated to the rights of Stella Ardoin, that right was a separate cause of action from that which Bordelon Motor Company had against defendant Brawn-er. The claims of Bordelon Motors and Stella Ardoin could not have even been brought in the same lawsuit, over objection by either, nor could Stella Ardoin have intervened in a suit by Bordelon Motors, and vice versa. (Emphasis supplied)

Of the three cases cited after the italicized dicta statement in Brawner, two are pertinent to the point at issue here. Klotz v. Nola Cabs, Inc., 209 So.2d 158 (La.App. 4th Cir. 1968) and Resor v. Mouton, 200 So.2d 308 (La.App. 4th Cir. 1967). These cases made a very restrictive application of LSA-C.C.P. art. 1091. We need not discuss them, for this circuit has specifically declined to follow them, Bellow v. New York Fire & Marine Underwriters, Inc., 215 So.2d 350 (La.App. 3rd Cir. 1968), and the Court of Appeal for the Fourth Circuit has specifically overruled Resor v. Mouton, supra, in Gallin v. Travelers Insurance Co., 323 So.2d 908 (La.App. 4th Cir. 1975), writ refused 329 So.2d 452 (La.1976). The case of Klotz v. Nola Cabs, Inc., supra, was not actually on point and merely contained a dicta statement with reference to an intervention for which the Resor case was cited as authority.

The primary authority for the more liberal interpretation of LSA-C.C.P. art. 1091, on the right of a third party to intervene, is the Bellow case referred to above, decided by this court in 1968 at 215 So.2d 350. Taking specific note of Resor and Klotz cases from the Fourth Circuit, this court rejected them and the restrictive approach. Instead, in Bellow, this court concluded that LSA-C.C.P. art. 1091, as written by the redactors of the Louisiana Code of Civil Procedure, was to be given a broad interpretation. In Gallin the Fourth Circuit noted our decision in Bellow, and decided to reject the restrictive approach of Resor and adopt the broad approach of Bellow.

In City of Natchitoches v. State, 221 So.2d 534 (La.App. 3rd Cir. 1969) this court further elaborated on LSA-C.C.P. art. 1091. There we stated that in adopting the Code of Civil Procedure in 1960, Louisiana enlarged the right of intervention and discarded the stricter tests for intervention established in the 1870 Code of Practice. We cited Bellow for our statements in this regard. We again mentioned Bellow in Texas Gas Transmission Corporation v. Gagnard, 223 So.2d 233 (La.App. 3rd Cir. 1969). In Gagnard we stated:

The Bellow decision notes the general policy of the 1960 Code to favor efficiency of judicial administration and to avoid a multiplicity of suits requiring multiple trials concerning the same facts. A similar policy is instanced by the Code’s provision strengthening the right of two or more parties to cumulate their actions where there is a community of interest arising out of their presenting the same factual issues. LSA-CCP Art. 463 (see especially Official Revision Comment (c)).

The Bellow decision and others are seen by some authorities as broadening LSA-C. C.P. art. 1091 to provide, jurisprudentially, a device similar to the cross-claim of federal practice. Briefly, the facts of the Bellow case were as follows. Bellow was a passenger in a bus which collided with a parked truck. Bellow sued the bus driver, Guillory, and the operator of the parked truck Joseph. Guillory then filed a pleading in which he sought judgment against Joseph and his employer to recover for damages to his truck and loss of income while it was being repaired. At the trial on the merits, the negligence of the truck operator, Joseph, was held to be the sole cause of the accident. On appeal it was contended that Guillory, the bus driver, could not recover from the truck operator because no procedural device permitted one defendant to recover his own damages from a co-defendant. (This would amount to a cross-claim.) Guillory’s pleading was treated as an intervention. As such this court held that, with respect to the claim of the plaintiff (Bellow) against the truck operator (Joseph), the bus driver (Guillory) was a “third person” within the contemplation of LSA-C.C.P. art. 1091. Finding that Article 1091 provided a greatly broadened right of intervention, Guillory was permitted to intervene because his claim arose out of the same facts and negligence as were asserted by the plaintiff in his principal demand against the truck operator.

In Bellow this court stated its application of the intervention article and its policy considerations as follows:

In our view, LSA-C.C.P. Article 1091 has broadened and thus increased the usefulness of the remedy of intervention. No longer is it essential that the interve-nor have such a direct interest in the pending action that he will obtain immediate gain or suffer immediate loss. Now it is sufficient that he have a justiciable right “related to or connected with the object of the pending action against one or more of the parties thereto.” To enforce this right he may proceed in one of the three ways listed in the code article. * * * In his capacity as intervenor, Guillory is a third person having an interest in the pending action. He seeks to enforce his own justiciable right to damages which arose out of the same accident. He does this by joining with the plaintiff in demanding similar relief against the other defendants.
This result serves the interests of justice and judicial administration. It tends to avoid a multiplicity of litigation and all of the evils attendant thereto.

In view of the foregoing discussion we find that intervention could properly be used by Tolmak, Inc., to assert its claim against CLECO. We find there was sufficient connexity between that claim for indemnity or contribution from CLECO and the principal or main demand of The Home Indemnity Company for recovery of workmen’s compensation paid to Clarence Pul-lard. Both claims arose out of the same accident and rest upon the same alleged acts of negligence of CLECO. Therefore, Tolmak’s intervention seeks “to enforce a right related to or connected with the object of the pending action.” Tolmak, Inc., seeks to join Home “in demanding similar relief against the defendant, CLECO.”

For the foregoing reasons we reverse that portion of the trial court’s judgment which holds that the intervention was improper.

ISSUE OF ABANDONMENT FOR LACK OF PROSECUTION

The Home Indemnity Company filed suit number 14,396 on August 21, 1970. Tolmak, Inc., filed its intervention in that suit on April 2, 1975. CLECO and Continental Casualty filed their motion to dismiss for lack of prosecution for five years under LSA-C.C.P. art. 561 on October 26, 1978. Mover alleged that the last step in the prosecution or defenses of suit number 14,396 was on May 26, 1971. On that date The Home Indemnity Company, plaintiff in suit number 14,396, voluntarily dismissed two of the original defendants, Boise Cascade Corporation and Employers Mutual Liability Insurance Company of Wisconsin. Tr. 16. It is apparently conceded that May 26, 1971, was the last date on which any step was taken in the prosecution or defense of Home’s action prior to the filing of the intervention by Tolmak, Inc. Therefore, unless the filing of the intervention and various other responses and filings constituted such a step or steps, the action was abandoned.

CLECO and Continental Casualty Company contend that intervention was not a step in the proceedings in suit number 14,396. Tolmak, Inc., and apparently The Home Indemnity Company, take the opposite position.

The critical codal provision in Article 561 of the Louisiana Code of Civil Procedure, which provides:

An action is abandoned when the parties fail to take any steps in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order or dismissal as of the date of its abandonment.
An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for a period of five years; and the appellate court shall dismiss the appeal summarily.

Appellants, Tolmak, Inc., and The Home Indemnity Company, rely upon Prall v. Peet's Curator, 3 La. 274 (1832) and Richardson v. Emmons, 250 So.2d 454 (La.App. 1st Cir. 1971), writ denied, 259 La. 776, 252 So.2d 670 (La.1971). It is urged that Pratt stands for the proposition that an intervention effects an interruption of prescription even though the intervention is improperly brought. Richardson v. Emmons, supra, is relied upon for the same proposition. We agree that the holding of these cases should have application here.

A Louisiana Supreme Court case, in our opinion, provides an interpretation of LSA-C.C.P. art. 561 which has applicability in the situation before us. The case is Reed v. Pittman, 257 La. 389, 242 So.2d 554 (La.1970). This case held that where separate suits are consolidated for trial, steps in the prosecution or defense of the consolidated proceedings are taken, not only in the principal suit, but also in others consolidated for trial with it. Suit One was a suit by a subcontractor, Reed, against the principal contractor, Pittman, for money allegedly due on the subcontract. Pittman had filed Suit Two against the owner of a housing construction project (HANO) to recover for all materials furnished and all work performed by Pittman and its subcontractors, including Reed. On an ex parte motion of Pittman the two suits were consolidated as related suits. Pittman brought a third party action against Reed in Suit Two for defective work in the subcontract. Reed reconvened in Pittman’s suit for what he had sued for in Suit One. Pittman recovered against HANO, but for some reason the trial court failed to pass on Reed’s claim against Pittman. When Reed attempted, after the conclusion of proceedings in the consolidated trial, to proceed in his Suit One, Pittman defended on the ground that Suit One had been abandoned for lack of prosecution over five years. The trial court and the Court of Appeal sustained Pittman’s position. The Supreme Court disagreed and reversed.

The joining of Tolmak’s claim with Home’s claim by Tolmak’s intervention in Home’s original suit produces a stronger case than a situation involving consolidated suits as was the case in Reed v. Pittman.

After the filing of the intervention on April 2, 1975, various actions were taken in suit number 7497. On June 11, 1975, The Home Indemnity Company filed a motion for summary judgment seeking to have the intervention dismissed. Tr. 25. In that motion, The Home Indemnity Company appeared as insurer of Servitron, Inc., one of the parties from whom Tolmak, Inc., seeks indemnity on contribution. Apparently this is the motion for summary judgment rejected by the trial court in written reasons rendered on October 26, 1976. Tr. 85. Thereafter, on August 2, 1977, The Home Indemnity Company filed a First Supplemental and Amending Petition for judgment over against CLECO and Continental Casualty Company. Tr. 90. On August 8, 1977, CLECO and Continental filed their exception of prescription and answer to the First Supplemental and Amending Petition just mentioned. Tr. 91. On April 18,1978, CLECO moved for an order to show cause why there should not be a continuance of the hearing on the exception of prescription (set for May 2, 1978) until June 20, 1978. Tr. 104. On April 21, 1978, The Home Indemnity Company filed an answer to the intervention of Tolmak, Inc. The motion to dismiss for lack of prosecution apparently was filed on October 26, 1978. (See filing date indicated by the deputy clerk of court on the memorandum filed with the motion as appears in the record on transcript page 139.)

For the foregoing reasons the trial court was in error in holding that the suit of The Home Indemnity Company against CLECO and Continental Casualty Company, suit number 14,396, was abandoned under LSA-C.C.P. art. 561. That suit is still viable as a result of the intervention and the subsequent activity in the litigation outlined above.

Therefore, the trial court is reversed insofar as the issues on appeal are concerned, namely, the question of whether Tolmak, Inc., could properly intervene in suit number 14,396 and whether the suit had been abandoned. The case, together with suit number 17,049, is remanded to the district court for further proceedings consistent with the holdings in this opinion. All costs of this appeal shall be paid by Central Louisiana Electric Company and Continental Casualty Company.

REVERSED AND REMANDED.

      . Other parties were involved in the original suit brought by The Home Indemnity Company, but they are not involved in this appeal.

      . In the trial court (30th Judicial District Court for the Parish of Beauregard) a “Joint Petition For Appeal in Consolidated Cases” was filed by The Home Indemnity Company and Tolmak, Inc. The latter petitioned for, and was granted, an appeal as intervenor in district court suit number 14,396 and as plaintiff in suit number 17,049. Both cases, therefore, came up on appeal and were consolidated in this court. As will be explained in this opinion, the issues on appeal do not involve any issues in district court suit number 17,049, which is on our docket as number 7498. At least one issue was involved in the trial court’s considerations and rulings, but nothing in that suit is before us. Therefore, no separate opinion will be rendered in appeal number 7498 entitled "Tolmak, Inc. v. Servitron, Inc."

      . These motions were based on the allegations that Servitron, Inc., as employer of Clarence Pullard, had no tort liability for his injury, and The Home Indemnity Company, as its insurer, had none. Therefore, it was urged that they could not owe indemnity or contribution to Tolmak, Inc. The motions for summary judgment were denied on the ground that material issues of fact existed as to whether Servitron, Inc., owed contractual indemnity to Tolmak, Inc.

      . 30 La.L.Rev. 296 (1970); 37 La.L.Rev. 529 (1977) and 38 La.L.Rev. 507 (1978).

      . Cf. Andrus v. Police Jury of Parish of Lafayette, 266 So.2d 535 (La.App. 3rd Cir. 1972).

      . The principle involved as it applies here is not affected by the dissenting opinion in Reed v. Pittman, supra, filed by Mr. Justice Barham. Two points were made in the dissent. The first was that it was not certain that there had actually been a consolidation of the two suits; if no consolidation had taken place, then abandonment took place as to Suit One. On the other hand, if consolidation did occur, then the failure of the trial court to rule on Reed’s claim acted as a dismissal of it, or Reed was at fault for having failed to timely present a judgment for signature.


author: REDMANN, Judge.

text:
    ABRAXAS FILM CORPORATION v. Ronald A. WEINBERG.
    No. 10847.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.
    Rehearing Denied June 20, 1980.
    Robert C. Lowe, Sessions, Fishman, Ro-senson, Boisfontaine & Nathan, New Orleans, for plaintiff.
    Wayne E. Garrett, Charbonnet & Char-bonnet, New Orleans, for defendant.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment ordering him to deliver to plaintiff all property of the International Films partnership and to cease acting as general partner. We affirm.

As the trial judge went directly to the heart of this matter, so do we. Article II of the Settlement Agreement, by which Weinberg became general partner and sole manager of the partnership’s property, provides that

his [admitted] failure to comply with the minimum schedule of receipts shall automatically give the original General Partner the option to terminate his appointment as General Partner of International Films immediately, upon receipt of notice from Abraxas Film Corporation that it desires to have the General Partnership revert to it .

Weinberg attacks the settlement agreement for its lack of limited partners as signatories: but he may not both claim the advantages and reject the disadvantages of that agreement. The same reasoning defeats Weinberg’s argument that Abraxas’s and Smith’s resignations as part of the settlement terminated the partnership: that is simply not the bargain set forth in the settlement agreement, and there never was a quitting of the partnership.

Similarly Weinberg’s procedural arguments — e. g., that the partnership is an indispensable party — must be answered. The bargain quite explicitly was that on notice from Abraxas, Weinberg was to deliver, to any place Abraxas designated, every “item, the property of International Films, and shall cease and desist to act on behalf of International Films in any capacity whatsoever . . . .”

Finally, Weinberg argues that this is not a case for injunction, that is, for specific performance of the settlement agreement. We disagree. First, La.C.C. 1757 declares that a contract gives “the right of enforcing /ts performance by law” (emphasis added), and C.C. 1799 states the Louisiana “presumption of law that in every contract each party has agreed to confer on the other the right of judicially enforcing the performance of the agreement . . . ” (emphasis added). Even when a contract provides a penalty (as does this one), C.C. 2124 (titled “Specific performance in lieu of penalty”) provides that “The creditor, instead of exacting the penalty stipulated from the debt- or who is in default, may sue for the execution of the principal obligation.” Even if this were an obligation to do, rather than one to give or deliver, C.C. 1926 entitles the obligee “either to damages, or, in cases which permit it, to a specific performance of the contract, at his option . . . .” C.C. 1927 provides for damages in “ordinary cases, . . . but where this would be an inadequate compensation, and the party [obligor] has the power of performing the contract, he may be constrained to a specific performance . . . .” For further discussion of the Code provisions, see Comment, 1966, 40 Tul.L.Rev. 340.

Plaintiff’s right to specific performance is clearly established by law.

Affirmed.


author: GULOTTA, Judge.

text:
    Robert HARRISON, August Harris and Jacqueline Montana v. Robert HOWELL, Groendyke Transport, Inc., and Farmers Insurance Group (Truck Insurance Exchange).
    No. 10916.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1980.

      Occhipinti, Grace, Berger & Dunford, Christopher T. Grace, Jr., New Orleans, for plaintiff-appellee Jacqueline Montana.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, Me-tairie, for defendants-appellants.
    Before GULOTTA, SCHOTT and GARRISON, JJ.
   GULOTTA, Judge.

Defendants appeal from a trial court judgment awarding damages to three plaintiffs for injuries sustained from an automobile/tractor-trailer truck accident. We reverse.

On Friday, June 18,1976 Robert Harrison was driving an automobile in a southerly direction on Bienville Street. Other occupants of the vehicle were Jacqueline Montana, seated in the middle front, and August Harris, seated in the right front. Harris was the owner of the automobile. The tractor-trailer truck was also traveling in the same direction on Bienville Street. After having halted for a stop light at the intersection of Bienville and Broad, the truck struck the rear-end of the automobile when the vehicles had reached a location approximately 100-150 feet from the intersection of N. Rocheblave and Bienville Streets.

Plaintiffs’ version of the accident is that while traveling in the direction of South Claiborne Avenue, on Bienville Street in the vicinity of N. Rocheblave, a large depression or hole extending across the entire width of Bienville Street caused Harrison to slow the speed of his automobile. At this point, while their automobile was still moving slowly in a forward direction, it was struck in the rear by the tractor-trailer truck. The testimony of all three plaintiff-occupants supported this version.

Defendants’ version, as testified to by the truck driver, is that the plaintiffs’ vehicle had earlier passed the truck on the left in the vicinity of Broad and Bienville Streets. After the truck had stopped for a signal light between Broad and N. Rocheblave Streets and was traveling forward at a speed between 15 and 20 miles per hour in third gear, the plaintiffs' vehicle (directly in front of the truck) began backing up toward the truck until they collided. Although an investigation was made of the accident, no police report was offered into evidence and no testimony was received regarding the circumstances surrounding the accident, other than from plaintiffs and the defendant truck driver.

Apparently immediately after the matter was submitted, the trial judge stated, in pertinent part:

“. . . The Court is of the opinion that none of the witnesses were able to tell the Court what really happened. The Court knows, for example, that there is no signal light between Broad and Mario Street on Bienville Street and there has not been any. The Court does know, or the Court believes, that an accident did happen. The Court does not believe these people were backing into this truck. The Court believes that it happened so quickly, that the driver of the tractor-trailer doesn’t know for sure what did happen. We know that an accident was investigated, and we know that, even in the words of the driver of the tractor-trailer, all three of the people appeared to be injured. . . . ”

It is clear from a reading of the trial court’s reasons that he accepted plaintiffs’ version of the accident and rejected defendants’ version. While apparently not casting doubt as to the truck driver’s veracity, it is apparent that his judgment is based upon a credibility determination after evaluation of the conflicting testimony.

Although we are cognizant of the advisability, if not the necessity of a trial judge rendering a judgment from the bench immediately after the matter is submitted, we are cognizant also that in some few instances the best of well-intentioned jurists commit error. Our evaluation of the testimony is one of those cases in which we conclude that the trial judge fell into manifest error.

We recognize and are often reminded of the pronouncement of Canter v. Koehring Company, 283 So.2d 716 (La.1973), in which the Supreme Court stated that when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluation and inferences are as reasonable. See also Arceneaux v. Domingue, 365 So.2d 1330 (La.1979), where the Supreme Court stated that the appellate court should not disturb a finding of fact unless it is clearly wrong, and Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976), in which the Supreme Court reiterated that the appellate court simply is not free to substitute its own version of the facts, however reasonable it may be, for facts as determined by the trial court unless the lower court committed manifest error by finding facts not reasonably supported by credible evidence in the record.

Relying on these jurisprudential mandates we could easily, in a superficial way, restate the oft-repeated reasons for not finding manifest error; but to do so in this case would constitute a dereliction of our constitutionally-placed responsibility to properly review both law and fact. See Sanders v. Hall, 345 So.2d 590 (La.App. 4th Cir. 1977), writ granted, 347 So.2d 248 (1977), on remand, 350 So.2d 262, writ refused December 2, 1977; Barry v. Billac, 250 So.2d 516 (La.App. 4th Cir. 1971).

Consistent with our duty, and after a review of the evidence, we are led to conclude that plaintiffs’ version of the accident is not supported by “credible” evidence. The innumerable and glaring inconsistencies and contradictions in the testimony of the three plaintiff witnesses (which become readily apparent after a reading, re-reading, and comparison of that testimony, not available to the trial judge) test credulity. We point out some of those inconsistencies as unfolded in the record.

The accident-prone Robert Harrison, driver of the automobile was involved in six accidents resulting in back injury between October 1974 and December 1, 1976. Five of these “injuries” resulted from automobile accidents and one resulted from a slip-and-fall incident. All of these incidents resulted in the filing of claims, or money settlements.

The first accident in which this plaintiff was involved occurred on October 24, 1974 when he slipped and fell in a Popeye’s Restaurant injuring his neck and back. This occurrence was followed by a November 19, 1974 automobile accident in which this plaintiff injured his back. Robert Harrison claimed that on May 20, 1976, while driving a truck, he sustained injury to his neck and lower back when another vehicle backed into the truck. Interestingly, August Harris, another of the plaintiffs in this case, was a passenger in the truck at the time of the May 20th accident and suffered injury to his neck and lower back. According to the history given to Dr. Alvin M. Cotlar, who testified in this case, Harris struck his head on the dashboard in the May 20th accident, as he did in the June 18th accident. Both of these plaintiffs at that time were treated by Dr. Cotlar and both were last seen by him on June 24, 1976.

The June 18, 1976 accident, with which we are concerned in this case, was followed by a June 21, 1976 accident at Canal and Claiborne Avenues. The three plaintiffs in our case were also occupants of the same automobile in the June 21st accident. According to their testimony, on the Monday following the June 18th accident, after seeing an attorney recommended by Harrison, and while on their way to the doctor’s office recommenced by the attorney, they were struck by another automobile which was in the process of negotiating a turn. The testimony indicates that all three parties received settlements from that accident. It is significant that although Harrison and Harris had been under the care of Dr. Cotlar from May 24th through June 24th, 1976, no mention was made to Dr. Cotlar on their June 24th visit of the June 18th accident or of the “serious” injuries sustained by them in that accident. Also significant is Dr. Cotlar’s testimony that in the history given to him by Harrison, he denied being involved in any previous accidents or sustaining any back or neck injury.

The next accident in which Harrison was involved, and in which he again sustained lower back injury, occurred on December 1, 1976 on Touro Street. According to his testimony, this claim was also settled. We reiterate that Harrison sustained back injuries from accidents in October 1974, November 1974, May 20, 1976, June 18,1976, June 21, 1976 and December 1, 1976. He was incarcerated in jail in March 1977 and apparently was still incarcerated at the time of trial on May 29, 1979.

Jacquelyn Montana, who was a passenger in the automobile driven by Harrison on two of the five occasions where accidents occurred, testified that on June 18th, while she was at a bus stop at the intersection of either Canal and Broad Streets, or Canal St. and Tulane Ave., Harrison and Harris “picked her up”. In describing her relationship with Harrison she stated that “we have always been friends, not real close.” Later in the record, however, in Robert Harrison’s testimony, he stated, “Jacqueline Montana has a son for me,” and “That’s what I am saying, we were common-law husband and wife.” Harrison contradicted Montana’s testimony when he stated that he did not pick her up accidentally on the street on June 18th, but picked her up at her house. Harrison contradicted his own testimony when he later described the relationship with Montana as “we were friends, that’s all.” Montana’s and Harrison’s child was about one or two months of age at the time of the accident.

Another interesting contradiction is Harrison’s testimony that the automobile involved in the June 18th accident had not been damaged before that accident and that he drove it frequently, indicating that he would have knowledge of and would have seen damage to the automobile in areas other than the rear. His testimony was contradicted by John B. Abadie, an appraiser. This appraiser stated the appraisal damage form indicated that an inspection of the vehicle revealed earlier damage to the car on the front, right and left fender and hood, which was not figured in the appraisal for the June 18, 1976 accident.

Dr. John Lindner, a general practitioner, to whom the three plaintiffs had been referred, saw them on June 21, 1976. Montana’s diagnosis was lumbar strain and contusion of the lower abdomen. Harrison’s diagnosis was acute, severe cervical sprain and strain of upper back and contusion of chest. Harris’ diagnosis was headache, pain and stiffness of neck and shoulder, acute cervical sprain, and acute sprain of back. All three received similar treatment which was in the nature of muscle relaxants, pain killers, heat treatment and therapy. Cervical collars were prescribed for Harrison and Harris. Montana was discharged on October 11, 1976; Harrison was discharged on October 19, 1976; and Harris was discharged on October 13, 1976. Montana’s bill was $535.00; Harrison’s bill was $550.00; and Harris’ bill was $565.00.

It is most significant that neither Harrison nor Harris mentioned the May 20, 1976 accident to the doctor. The failure to tell Dr. Lindner of the May 20th accident is particularly significant when connected with the fact that Harrison and Harris were under treatment of Dr. Cotlar from the earlier accident and made a last visit to him on June 24, after the first visit to Dr. Lindner. We also note that Harrison insisted Dr. Cotlar discharge him on that date, although Dr. Cotlar did not feel he was ready for discharge.

August Harris’ testimony added little, if anything, to clarify the June 18th accident. He testified that the accident happened on Bienville Street between Roeheblave and Tonti. According to Harris, something hit the back of the car and he hit his head. He does not remember the June 21st accident and suffers from loss of memory from a head injury. Although he remembers seeing Dr. Lindner he does not remember the type of treatment received. He stated that his loss of memory commenced in March 1978 and does not recall being in the May 20, 1976 accident.

Robert Howell, the truck driver, stated that while he was traveling on Bienville St., near the intersection of Broad, plaintiffs’ automobile, when attempting to pass, crowded the truck to the right and came within inches of hitting him. He testified that when the automobile was even with the cab of the truck “they were laughing and everything else. He was looking straight up at me and trying to play with me and I just slowed down so they could go ahead of me and keep away from any kind of accident.” Howell added that after he had stopped for a red light, he commenced moving forward and had reached third gear at a speed of approximately 15 or 20 miles per hour, when he suddenly saw the automobile coming back in reverse and it struck the truck. According to his testimony, he was unable to avoid the impact.

He testified that, although he was not familiar with the street names in New Orleans (he resides in Texas), he stopped for a signal light on Bienville St. between the Broad-Bienville intersection, and where the accident happened. As pointed out by the trial judge, Howell was mistaken as to the location of the signal light. Although his testimony was not entirely clear, we are led to conclude, when comparing his testimony with that of the three plaintiff witnesses, that Howell was telling the truth. Under these circumstances we place no credibility whatsoever in plaintiffs’ version of the accident.

Having so concluded, and having found manifest error, we reverse the judgment of the trial court and dismiss plaintiffs’ suit at their costs, and at their prejudice.

REVERSED AND RENDERED.

      . LSA-Const. 1974, Art. 5, Section 10(B) provides:
      “Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.”