author: LEMMON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Jimmy Lee HERNANDEZ.
    No. 81-K-1669.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    Rehearing Denied Feb. 5, 1982.

      R. Perry Pringle, of Pringle & Herzog, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Herman Lawson, Asst. Dist. Attys., for plaintiff-respondent.
   LEMMON, Justice.

This court granted defendant’s pretrial application for supervisory writs to determine the correctness of the trial court’s denial of defendant’s motion to suppress. La.Const. Art. V, § 5 (1974).

I.

On February 6, 1981 at about 5:30 a. m. Deputy Robert Davidson of the DeSoto Parish Sheriff’s Office received a telephone call at his home from an informant. The informant told Deputy Davidson that defendant was bringing some marijuana to sell to the informant that day at the Brown and Root construction site where defendant and the informant were both employed. The informant further stated that defendant had given instructions to bring money to work that day because defendant was going to have marijuana available for sale. The vehicle which defendant would be driving was described by the informant as a black Chevrolet truck bearing license number T600-568. The informant further advised that defendant usually arrived for work at the construction site between 6:30 and 7:00 in the morning and that the marijuana would be somewhere under the seat of the truck.

The informant was known to the deputy and had provided accurate information to him on several prior occasions. In order to intercept defendant the deputy acted immediately on the tip by having Deputy Melton pick him up and then driving .20 miles to the construction site. Upon arrival the two deputies advised Otis Miller, the chief of security, of their purpose and secured his assistance.

When defendant drove the described truck into the parking lot at the construction site, the three waiting men followed defendant to the spot where he parked and intercepted him just as he and another man were getting out of the truck. The officers immediately identified themselves and advised defendant that they suspected the presence of marijuana in his truck. Defendant handed a large Playmate-type lunch box to the other occupant of the vehicle, but the deputies recovered the box and allowed the other man to go on to work. Over defendant’s protest the deputies and the security chief searched his lunch box and truck. Deputy Davidson discovered a plastic Tupperware container in the cab of the truck behind the front seat, and the security chief removed it from the vehicle. He and Deputy Davidson then opened the plastic container and found eight “lids” of marijuana. The deputies thereafter advised defendant of his “Miranda” rights and placed him under arrest.

II.

The trial court properly determined that the warrantless search of the truck and seizure of the Tupperware box suspected of containing marijuana were not unreasonable under the Fourth Amendment or La.Const. Art. I, § 5 (1974). The warrant-less search of the truck, leading to the discovery of the opaque Tupperware container, was manifestly reasonable under settled principles. Based on the detailed tip of a proven reliable informant who purported to have first-hand knowledge of the revealed facts, the officers clearly had probable cause to believe that the pickup truck would contain marijuana. This court stated the test for evaluating probable cause based on an informant’s tip in State v. Jeffcoat, 403 So.2d 1227 (La.1981), as follows:

“The facts necessary to show probable cause may be established by hearsay evidence. Jones v. United States, 362 U.S. 257 [80 S.Ct. 725, 4 L.Ed.2d 697] (1960); State v. Paciera, 290 So.2d 681 (La.1974). The Supreme Court in Aguilar v. Texas, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723] (1964), laid down the test by which information given the affiant by an unidentified informant could be considered by the magistrate in determining if there was probable cause upon which a search warrant should issue. ‘[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were there where he claimed they were and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed .. . was “credible” or his information “reliable”.’ 378 U.S. at 114-115 [84 S.Ct. at 1513-14].
“A careful analysis of Aguilar reveals, that its two-part test is designed to perform different functions. The first part is designed to insure that the informant obtained his information by personal observation, or in some other dependable manner rather than through mere rumor. This ‘basis of knowledge’ test is a corollary of the Fourth Amendment’s requirement that the magistrate, and not the police officer-affiant or his informant, shall weigh the facts and decide whether they establish probable cause. See Spinelli v. United States, 393 U.S. [410] at 424 [89 S.Ct. 584, at 593, 21 L.Ed.2d 637]; State v. Cann, 392 So.2d 381, 384 (concurring opinion); Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 751-752 (1974).
“The second prong of Aguilar's two-prong test is aimed at determining the veracity of the source of the hearsay information. Aguilar held that this test could be satisfied in either of two ways: (1) the affidavit may recite facts from which the magistrate could conclude that the informant is credible, or (2) it may recite facts from which the magistrate could conclude that the informant’s information is credible. The ‘veracity prong’ of Aguilar's two-part test is designed to perform the same function that the oath and the magistrate’s direct observation serve in evaluating the truthfulness of the affiant. As the oath serves as a hedge against issuing an affidavit based on false allegations, so too does the requirement that there be included in the affidavit facts which indicate a reason for believing in the veracity of the source of the information. Where the internal recitation about the informant or about the circumstances under which the information was furnished fails to establish that the informant was ‘credible’ or that his information was otherwise ‘reliable’, then the independent observations made by the officers-affiants themselves might be looked to by way of verification. See Spinelli v. United States, supra; State v. Paciera, supra; State v. Cann, supra, Moylan, supra, at 750-751.” 403 So.2d at 1229-1230.

See also State v. Bible, 389 So.2d 42 (La.1980), rev’d on other grounds, 406 So.2d 138 (La.1981) (No. 66,584); State v. Paciera, 290 So.2d 781 (La.1974).

Furthermore, the evidence established that the deputies reasonably decided to act immediately in order to intercept defendant and secure the marijuana before he had an opportunity to dispose of any of it. The officers did not know who had access to the truck or when defendant would remove the marijuana in order to make the sales. This case therefore does not present a-situation in which the officers actively sought to create an emergency in order to avoid the initial scrutiny of their probable cause by a magistrate. See State v. Tant, 287 So.2d 458 (La.1973); State v. Nieto, 395 So.2d 733 (La.1981). There was nothing unreasonable about their decision to locate defendant and his truck immediately upon his arrival at the construction site and to preclude any opportunity for distributing drugs (as by bringing them with him in his lunch box) while they applied for a search warrant.

We further note that this court, for purposes of the “automobile exception” to the search warrant requirement, has not distinguished between a vehicle stopped while in motion and then searched (obviously, a vehicle must first be stopped before it is searched) and a vehicle parked in a public place accessible to persons who might either move it or remove evidence from the vehicle. See State v. Lewis, 378 So.2d 396 (La.1979); State v. Green, 404 So.2d 977 (La.1981), Dennis, J., concurring. For constitutional purposes, given probable cause, it was reasonable for the officers to immediately search the inherently mobile conveyance rather than merely to immobilize it and then secure a warrant before searching it. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court rejected the contention that the war-rantless immobilization or seizure of an automobile was a “lesser” intrusion than the immediate search of the immobilized movable. The Court stated that “given probable cause, either course is reasonable”. The Court has also recognized that the diminished expectations of privacy in the automobile (as opposed to a home or a repository for personal effects such as a footlocker or suitcase) justifies the determination that warrantless searches of automobiles are reasonable when supported by probable cause. See United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). See also Belton v. New York, 453 U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Thus, we have no difficulty in concluding that the search leading to the discovery of the Tupperware container was lawfully conducted.

III.

The search of the Tupperware box presents a complex constitutional problem. While the officers had probable cause to believe marijuana would be found in the pickup truck, their tip did not focus on any particular type of container. The officers had been advised that the marijuana would probably be found under the seat, and the closed Tupperware container (designed to keep vegetable matter fresh) was certainly a likely spot.

Once the chief pf security had the Tupperware box in his possession, the chances were highly unlikely that anyone could capture it from him and destroy its contents. Thus, here, as in Robbins v. California, 453 U.S. -, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) and Arkansas v. Sanders, above, officers had probable cause to believe that a closed container (whose contents could not be inferred from its outward appearance) located in a mobile vehicle contained contraband.

In Arkansas v. Sanders, above, the Court declared illegal the warrantless search of a suitcase taken from the trunk of a taxicab that had been legally stopped, despite the fact that the officers had probable cause to believe the suitcase contained marijuana. The Court refused to extend the rationale of the Carroll and Chambers cases to luggage being carried in the trunk of a vehicle.

In the Sanders case the officers had probable cause to believe that defendant would arrive at the Little Rock Airport with a green suitcase containing marijuana. They saw the defendant disembark from an aircraft carrying a green suitcase and leave in a taxi. They then stopped the taxi and seized and searched the suitcase. The Court found that “a suitcase taken from an automobile stopped on the highway is not necessarily attended by any lesser expectation of privacy than is associated with luggage taken from other locations”. 442 U.S. at 764, 99 S.Ct. at 2593. Once the suitcase was immobilized and taken into police custody, the court found no justification or greater need for a warrantless search of luggage taken from an automobile than of luggage taken from any other location. See Chadwick v. United States, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

In a concurring opinion in the Sanders case Chief Justice Burger opined that the decision did not bar the warrantless search of luggage located in a vehicle under all circumstances. The opinion noted, for example, the case in which officers have probable cause to believe that the contraband is located somewhere within a stopped vehicle, but do not know whether it is located in a piece of luggage, or in the glove compartment, or elsewhere in the car.

In Robbins a highway patrolman stopped a vehicle for a traffic infraction and detected the aroma of marijuana. After finding marijuana in the passenger compartment of the vehicle, the officer placed Robbins into his patrol car. He then proceeded to open the tailgate of Robbins’ station wagon and to search a recessed luggage compartment, where he found two packages wrapped in green opaque plastic. Unwrapping the packages, he discovered each to contain 15 pounds of marijuana.

The Court in Robbins ordered the marijuana suppressed. A plurality of the justices concluded that, despite probable cause, “such a container may not be opened without a warrant, even if found during the course of the lawful search of an automobile”. 453 U.S. at -, 101 S.Ct. at 2847. The plurality reasoned that the diminished expectation of privacy in the automobile generally did not extend to such closed containers (as long as the container did not have such a “distinctive configuration” as to “proclaim its contents”). Compare State v. Casillas, 393 So.2d 694 (1981).

Nevertheless, for several reasons we do not find Robbins to be controlling in the present case.

In the first 'place Robbins may best be characterized as a “container” case rather than an “automobile exception” case. In his concurring opinion in Robbins Justice Powell was willing to join the plurality by sharing the “assumption that the police had probable cause to search the container rather than the automobile generally”. 101 S.Ct. at 2849. Chief Justice Burger, who also concurred in the result, had earlier in Sanders clearly distinguished “container” cases from “automobile” cases. The concurrences of Justice Powell and Chief Justice Burger were necessary to suppress the evidence in Robbins, because Justices Black-mun, Stevens and Rehnquist dissented, believing the search immediately following the lawful seizure was reasonable and valid. Thus, it appears plain that future cases must be dealt with in these terms and classified as “container” cases or “automobile exception” cases.

In the “container” cases (those in which the officers have probable cause to search only a particular container, whether seized from a movable vehicle or elsewhere), the validity of the search of the container should be determined without reference to the coincidental fact that the container was seized while located in a movable vehicle. But in “automobile” cases (those in which the officers have probable cause to search the entire vehicle), the officers may search any portion of the automobile and any container, lawfully seized during the lawful search of the automobile, which is reasonably likely to contain contraband.

The present case clearly falls into the “automobile exception” cases. The informant’s tip gave the deputies probable cause to search the pickup truck generally rather than to search any particular container that may have been found in the pickup truck or elsewhere after removal from the truck. Therefore, when one considers the views expressed in the dissenting opinions in Robbins combined with the “container” versus “automobile exception” reasoning expressed in the concurring opinions in Robbins and in Sanders, it is reasonable to conclude that five justices of the eight Robbins justices now on the Court would hold that the officers reasonably and validly opened the Tupperware container immediately after lawfully seizing it.

Another basis for distinguishing this case from Robbins is that the Robbins decision turned on a finding of high expectation of privacy. Any expectation of privacy as to closed containers of the sort searched in the present case was significantly diminished by the company policy, known and agreed to by defendant, which subjected all vehicles located in the parking lot and their contents to search by company security officers ‘for the purpose of discovering controlled dangerous substances. Although we are not prepared to treat this ease as one in which defendant consented to the search, as in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), we nevertheless emphasize that defendant was aware the chief of security might at any time examine his lunch box and other likely containers located within his vehicle for drugs (especially if, as here, the chief of security were to be alerted to the probable presence of such drugs by law enforcement officers). Under these circumstances defendant cannot reasonably be viewed as having “manifested an expectation that the contents would remain free from public examination”. Robbins, 101 S.Ct. at 2846, quoting United States v. Chadwick, 433 U.S. at 11, 97 S.Ct. at 2483. Therefore, since the Robbins’ decision emphasized a non-diminished expectation of privacy in the packages searched in that case, we find the circumstances clearly distinguishable here.

The ruling of the trial court denying defendant’s motion to suppress is affirmed.

DENNIS, J., dissents with reasons.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion because I do not believe there were exigent circumstances present in this case justifying the warrantless search of defendant’s truck.

It is well settled that a warrantless search is per se unreasonable and violative of the Fourth Amendment to the United States Constitution. Robbins v. California, - U.S. -, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). Although the United States Supreme Court has identified some exceptions to this warrant requirement, the Court has emphasized that these exceptions are “few”, “specifically established” and “well-delineated.” Katz v. United States, supra, 88 S.Ct. at 514.

Among the identified exceptions is the one relied on in this case to justify the warrantless search of defendant’s truck, the “automobile exception.” In Robbins v. California, supra, the Court stated that a warrant is unnecessary under the “automobile exception” “ ‘where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.’ Chambers v. Maroney, [399 U.S. 42] 90 S.Ct. 1975 [26 L.Ed.2d 419].” In other words, there must be a combination of probable cause coupled with exigent circumstances. State v. Nieto, 395 So.2d 733 (La.1981).

This Court has defined exigent circumstances as those which render the obtaining of a warrant impracticable due to the pos-siblity that valuable evidence may be lost during the interim necessary to procure the warrant. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Wilkins, 364 So.2d 934 (La.1978). In the present case, while there was probable cause to search the truck, there were no exigent circumstances present to justify the immediate search without the officer first obtaining a warrant.

The probable cause for the search was supplied by the officer’s testimony that he had been telephoned the morning of the search by an informant who told the officer that the defendant would have marijuana in his truck that day. The informer told the officer that the defendant had told the informer to bring money with him to work that day and that the defendant would sell him some marijuana. The officer testified that this informant had given him information in the past that had led to several arrests and convictions establishing the informant’s credibility and reliability. However, this credible and reliable source also told the officer that it was defendant’s usual practice to sell the marijuana from his truck in the parking lot after work. The informant made the call to the officer at about 5:30 a. m. Defendant was to begin a routine day-long work shift at 6:30 or 7:00 that morning. The truck would be left locked in the parking lot for the entire day. Therefore, the officer had the entire day to obtain the search warrant without the risk that the “evidence may be lost during the interim necessary to procure a warrant.” There were simply no circumstances involved in this case that made the officer’s obtaining a warrant prior to the search impracticable.

Since there were no exigent circumstances to justify this search under the “automobile exception” to the warrant requirement, nor any other facts that would justify it, the search was in violation of the Fourth Amendment to the United States Constitution and the evidence illegally seized should be suppressed. For these reasons, I dissent.

      . The deputy testified that the informant provided information which solved about 15 burglaries in DeSoto Parish and between 70 to 80 burglaries in other parishes in the area. The informant had also supplied accurate information in connection with a previous drug case.

      . The fact that defendant would normally not leave work for several hours and that the informant advised that defendant normally disposed of marijuana after work does not render unreasonable the decision to act immediately. The officers were not required to risk detection and possible destruction of the evidence by a prolonged surveillance. Nor were they required to assume defendant would not place the marijuana in his Playmate lunch box for possible distribution at the worksite.
      The officers’ action in this case was vastly different from that of officers who observe suspected contraband, but wait until it is placed in an automobile, arguably for the purpose of creating exigent circumstances.

      . In cases of searches of automobiles the Supreme Court of the United States and this court have held that officers acting with probable cause may stop and search moving vehicles. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); State v. Tant, 278 So.2d 458 (La.1974). This position has been adopted, despite the usual preference for a judicial determination of probable cause prior to a search, in part because of the diminished expectation of privacy in an automobile and in part because of the inherent mobility of the automobile. When probable cause exists, the courts have not required officers merely to stop vehicles and detain them pending the issuance of a search warrant. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975).
      The Sanders decision discussed and recognized that the societal cost of an inflexible requirement to obtain a warrant to search a legally stopped automobile outweighed the value of presenting probable cause to a neutral magistrate, stating:
      “In Chambers, if the Court had required seizure and holding of the vehicle, it would have imposed a constitutional requirement upon police departments of all sizes around the country to have available the people and equipment necessary to transport impounded automobiles to some central location until warrants could be secured. Moreover, once seized automobiles were taken from the highway the police would be responsible for providing some appropriate location where they could be kept, with due regard to the safety of vehicles and their contents, until a magistrate rules on the application for a warrant. Such a constitutional requirement therefore would have imposed severe, even impossible, burdens on many police departments.” 442 U.S. at 765, 99 S.Ct. at 2594.

      . Justice Powell said in pertinent part:
      “The dissenters argue, with some justice, that the controlling question should be the scope of the automobile exception to the warrant requirement. In their view, when the police have probable cause to search an automobile, rather than only to search a particular container that fortuitously is located in it, the exigencies that allow the police to search the entire automobile without a warrant support the warrantless search of every container found therein. See post, at 2859 & n. 13 (STEVENS, J., dissenting). This analysis is entirely consistent with the holdings in Chadwick and Sanders, neither of which is an “automobile case,” because the police had probable cause to search the double-locked footlocker and the suitcase respectively before either came near an automobile. See Chadwick, supra [433 U.S. 1] at 11 [97 S.Ct. 2476, at 2483]; Sanders, supra, [442 U.S. 753] at 761 [99 S.Ct. 2586 at 2592]; see also id. at 766 [99 S.Ct. at 2594] (BURGER, C. J., concurring). Adoption of the dissenters’ view would require, however, rejection of a good deal of the reasoning in the latter case.
      “Resolving this case by expanding the scope of the automobile exception is attractive not so much for its logical virtue, but because it may provide ground for agreement by a majority of the presently fractured Court on an approach that would give more specific guidance to police and courts in this recurring situation — one that has lead to incessant litigation. I note, however, that this benefit would not be realized fully, as courts may find themselves deciding when probable cause ripened, or whether suspicion focused on the container or on the car in which it traveled.
      “The parties have not pressed this argument in this case and it is late in the Term for us to undertake sua sponte reconsiderations of basic doctrines. Given these constraints, I adhere to statements in Sanders that the fact that the container was seized from an automobile is irrelevant to the question whether a warrant is needed to search its contents. Some future cases affording an opportunity for more thorough consideration of the basic principles at risk may offer some better, if more radical, solution to the confusion that infects this benighted area of the law.” 453 U.S. at - - -, 101 S.Ct. 2850-2851.

      . In Sanders Chief Justice Burger pointed out:
      “The breadth of the Court’s opinion and its repeated references to the ‘automobile’ from which respondent’s suitcase was seized at the time of his arrest, however, might lead the reader to believe — as the dissenters apparently do — that this case involves the ‘automobile’ exception to the warrant requirement. See ante, [442 U.S. 753] at 762-765, and n.14 [99 S.Ct. 2586, at 2592-2593, and n.14]. It does not. Here, as in Chadwick, it was the luggage being transported by respondent at the time of his arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent’s arrest does not turn this into an ‘automobile’ exception case. The Court need say no more.
      “This case simply does not present the question of whether a warrant is required before opening luggage when the police have probable cause to believe contraband is located somewhere in the vehicle, but when they do not know whether, for example, it is inside a piece of luggage in the trunk, in the glove compartment, or concealed in some part of the car’s structure.” 442 U.S. at 767, 99 S.Ct. at 2595.

      . At the hearing on the motion to suppress the state proved that defendant was given a booklet of company regulations which clearly provided that lunch boxes and vehicles brought onto the job site would be searched from time to time on an unscheduled basis. The state proved that such searches by company security officers were conducted for the purpose of controlling narcotics and theft. Company policy prohibited all narcotics from being brought on the premises and made special provisions for drugs prescribed by a physician. In cases of prescription drugs special work assignments were often made. The state offered into evidence a statement signed by defendant acknowledging his awareness of these regulations and agreeing to comply with them as a condition of employment. The signed statement came from defendant’s personnel file.
      The state also proved that a large sign appeared on the guard gate with the following language: “NOTICE. ALL VEHICLES OF PERSONNEL ENTERING OR LEAVING THE PREMISES SUBJECT TO SEARCH.”

      . Since we have distinguished this case from Robbins on the basis of being an “automobile exception” case, rather than a “container” case, and being a case of significantly diminished expectation of privacy, it is not necessary to address the retroactivity of Robbins. The Robbins plurality considered that decision an application, rather than an extension, of Sanders and Chadwick.

      However, newly announced prophylactic rules extending the exclusionary rule to enforce Fourth Amendment principles have not been given retroactive effect. In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1971) the Court noted that the deterrent purposes of the exclusionary rule are not furthered by suppressing fruits of good faith actions taken in reliance on existing standards. See also United States v. Williams, 622 F.2d 830 (5th Cir. 1980). In Peltier, the Court said:
      “It is indisputable ... that in every case in which the court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the fact finding process, the court has concluded that any such new constitutional principle would be accorded only prospective application.” 422 U.S. at 535, 95 S.Ct. at 2316. (Emphasis supplied.)
      See also Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), holding that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was not to be given retroactive effect.
      Thus, if Robbins announced a new constitutional principle or extended a previously announced exclusionary rule, the search in this case, occurring on February 6, 1981, would not be governed by principles and standards announced in Robbins on July 1, 1981.


source: Caselaw Access Project

author:
GARRISON, Justice Ad Hoc .
      DIXON, Chief Justice

license: Public Domain

text:
    STATE of Louisiana v. Thomas E. FONTENOT.
    No. 81-KA-1098.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    Rehearing Denied Feb. 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Dist. Atty., Terry Johnson, Abbott J. Reeves, Charles W. Richard, Asst. Dist. Attys., for plaintiff-appellee.
    Charles Schrumpf of Sumpter & Schrumpf, Sulpher, for defendant-appellant.
   GARRISON, Justice Ad Hoc .

Thomas E. Fontenot was involved in an automobile collision on April 9, 1980, and on May 5,1980, an Information was filed by an assistant district attorney of the 14th Judicial District of the State of Louisiana charging him with negligent homicide arising out of that accident. The Bill of Information specifically charged that:

“Thomas E. Fontenot, at the Parish of Calcasieu, on or about the 9th day of April in the year of our Lord, One Thousand Nine Hundred and Eighty (Negligent Homicide) did kill one Johnnie D. Long, by the criminal negligent operation of a motor vehicle, to-wit: by driving it while intoxicated and by running a stop sign into the said, Johnnie D. Long, in violation of LSA-R.S. 14:32.”

On January 23, 1981, Fontenot pleaded guilty to the charges of driving while intoxicated and running a stop sign and was sentenced on that same date. Subsequently, the defendant filed a motion to quash the negligent homicide prosecution on the ground of double jeopardy. The motion was denied. Thereafter, the defendant pleaded guilty to the negligent homicide charge, reserving his right to appeal the ruling against him on the motion to quash.

This case appears clearly to address the issue of double jeopardy. More specifically, the defendant-appellant contends that the district judge erred in denying his motion to quash for the following reasons: That it would constitute double jeopardy under the Fifth Amendment of the U.S. Constitution, Art. 1, § 15 of the Louisiana Constitution, and Art. 591 of the La.C.Cr.P. to prosecute the defendant after a valid sentence has been imposed upon him on the driving while intoxicated and running a stop sign charge, the conduct and facts upon which the negligent homicide prosecution is based.

The defendant points out that Art. 596 in the La.C.Cr.P. sets forth the criteria with regard to the existence of double jeopardy. It is his contention that Louisiana has formulated or used the “same evidence” test for determining whether or not a prosecution is barred under the doctrine of double jeopardy.

In that regard he makes the following arguments: That the precise test in Louisiana is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. [Citing State v. Foster, 156 La. 891, 101 So. 255 (1924)] It is unnecessary that one offense be a greater or lesser offense than another. [Citing State v. Suire, 319 So.2d 347 (La., 1975), wherein Justice Tate stated that under Louisiana law it is immaterial if the first prosecution is for a misdemeanor and the second is for a felony. Citing further State v. Diddier, 262 La. 364, 263 So.2d 322 (La., 1972), as well as State v. Foy, 401 So.2d 948 (1981).]

In summary, the central argument of the defendant is that the gravemen of the second offense is essentially included within the offense for which he was first tried — as a result of which the second prosecution is barred because of former jeopardy. The gravemen of the negligent homicide, he argues, is the driving while intoxicated and running a stop sign, which caused the accident and death.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, applicable to the State’s Fourteenth Amendment, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Art. 1, § 15 of the 1974 Louisiana Constitution contains a similar guarantee.

Whether two offenses are the same for purposes of double jeopardy is established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932):

“. . . The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not . . . . ”

284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed.2d at 309. This same rule is constitutionally required of the states. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

La.C.Cr.P. art. 596 states the requirements for finding that a defendant has twice been placed in jeopardy. That article provides:

“Double jeopardy exists in a second trial only when the charge in that trial is:
“(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
“(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”

In determining whether the present offense is the “same offense” or a different grade of it, this court has applied the “Blockburger” test. State v. Steele, 387 So.2d 1175 (La., 1980) State v. Doughty, 379 So.2d 1088 (La., 1980), and the “same evidence” test; State v. Solomon, 379 So.2d 1078 (La., 1980); State v. Smith, 323 So.2d 797 (La., 1975); City of Baton Rouge v. Jackson, 310 So.2d 596 (La., 1975).

In the case at hand, the defendant pleaded guilty of operating a vehicle while intoxicated and running a stop sign. He then moved to quash the negligent homicide charge on the ground of double jeopardy. Applying the “Blockburger test”, or “distinct fact” test, each crime requires proof of an element that the other does not. Operating a vehicle while intoxicated is defined as “the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbituates.” R.S. 14:98. In order to convict an accused of driving while intoxicated the state need only prove that (1) defendant was operating a vehicle or other conveyance; and (2) that defendant was under the influence of alcoholic beverages or some type of drug. In order to convict a defendant of negligent homicide, however, the state must prove (1) that defendant was criminally negligent, i.e., that there was such disregard of the interest of others that the offender’s conduct amounted to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances; and (2) that a killing resulted from this conduct. Each crime requires proof of a fact not required by the other and the “Blockbur-ger” test is satisfied.

Here, then, appears to be the resolution of the initially apparent problem of the instant case. Driving while intoxicated does not require proof of death of the victim. Negligent homicide does. Conversely, negligent homicide requires proof of killing someone. Driving while intoxicated and running a stop sign do not.

Accordingly, each offense requires proof which the other does not and the various offenses, therefore, are not subject to the plea of double jeopardy. Consequently, the argument of the defense is found to be without merit.

For the foregoing reasons, the conviction and sentence of the defendant for the crime of negligent homicide is affirmed.

AFFIRMED.

DIXON, C. J., concurs with reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur in the conclusion that there is no double jeopardy here under the Blockburger test. Obviously, as the majority finds, a homicide is an essential element of one offense and not of the other. Driving while intoxicated is an essential element of the other, and would not be an essential element of the negligent homicide, except that it was specified that the negligent homicide was committed “by driving it while intoxicated and by running a stop sign” into the deceased.

It is easily conceivable that a driver might be involved in a fatal accident when driving while intoxicated, or when he has run a stop sign, without being guilty of “criminal negligence,” that is, without having “such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” R.S. 14:12.

Criminal negligence, therefore, an essential element of negligent homicide (R.S. 14:32) is the “additional fact” in negligent homicide which is not essential to D.W.I. The Blockburger test is therefore satisfied, since defendant pleaded guilty to criminal negligence — a gross deviation below the standard of care of a reasonable man, when he ran a stop sign while drunk and collided with the victim.

       Judges James C. Gulotta and Jim Garrison of the Court of Appeal, Fourth Circuit, and Bernard J. Bagert of the Criminal District Court, Parish of Orleans, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr. and Fred A. Blanche, Jr.


author: CALOGERO and WATSON, JJ.,

text:
    The CONTINENTAL GROUP, INC. v. J. L. ALLISON, Jr., et al.
    No. 67188.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   CALOGERO and WATSON, JJ.,

dissenting.

We would consider this Motion to Vacate and Set Aside Judgment as an application for rehearing and grant same. Applicant has been afforded no opportunity in this Court to raise the issue presented in this motion. It was only after this Court denied the rehearing application that applicant received a copy of the concurring opinion of one Justice of this Court, creating a vote lineup which is the substance of the pleading presently filed. Since our rules do not provide for second application for rehearing by a given losing party, we would consider the complaint under our supervisory jurisdiction, forge a reasonable rehearing opportunity and entertain the complaint now, rather than have applicant protest the effect of this judgment again in the trial court or seek relief on alleged constitutional violations in the Federal courts.

The issue raised is a serious one. We should at least entertain it. Applicants contend that four, perhaps five members of this Court have concluded that vendors retained the lignite rights, and only three members of this Court have held that their right to explore for that lignite has prescribed. Yet they have lost their valuable mineral deposits.

Not considering this application should not be the course taken at this juncture by this Court.


author: ELLIS, Judge:

text:
    Oliver MAJOR, et al. v. Mrs. Joyce Major MORGAN, et al.
    No. 14,376.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Rehearing Denied Feb. 2, 1982.
    C. E. Laborde, Jr., Laborde & Lafargue, Marksville, for plaintiffs-appellees.
    C. Jerome D’Aquila, D’Aquila & Parks, Catherine D. Kimball, New Roads, for defendants-appellants.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

Mary Langlois Major was married first to Aminthas Major, of which marriage four children were born. In 1913, after the death of her first husband, she married Albin Major, of which marriage five children were born. Albin Major died intestate in 1932, survived by his widow and five children, who were recognized as such by judgment in his succession, and sent into possession of his estate. Mary Langlois Major died intestate in 1949, survived by her nine children, born of her two marriages.

After the death of Mrs. Major a dispute arose between the children of her first marriage and the children of her second marriage, as to the assets of her succession and as to claims for and against her succession. In order “to adjust all matters and avoid litigation” the parties on January 20, 1950, entered an agreement “to compromise their differences.” By the terms thereof, the children of the second marriage (therein referred to as the parties of the first part) paid $34,000.00 to the children of the first marriage, (therein referred to as the parties of the second part) and transferred to them all of their interest in a 97.37-acre tract of land, and a V32 royalty interest in another tract. In return the children of the first marriage transferred to the children of the second marriage 34 different items of immovable and movable property, which are recited to be the entire interest in the property acquired by them from the succession of Mrs. Major. The agreement also contains the following provisions:

“Parties of the Second Part do hereby declare that it is their intention to transfer, and they do hereby transfer, to the said parties of the First Part any and all right, title and interest, of whatever nature and kind, which they have or may have in and to the Succession of their deceased mother, Mrs. Mary Langlois Major, except as to the realty and royalty rights herein transferred to said parties of the Second Part by said parties of the First Part, and the personal effects belonging to the Succession of their deceased mother, such as clothing and jewelry, and silverware and furniture and other household effects located in home of decedent, which are to be divided among the parties to this agreement or auctioned as hereinabove set forth, within thirty (30) days from date of this agreement.”
“Parties of the First Part and parties of the Second Part do hereby agree that as a further consideration for this agreement and sale and transfer of property the parties of the Second Part transfer to the parties of the First Part any and all rights which the said parties of the Second Part may have in and to any property acquired by Albin Major, deceased, during the community existing between him and Mrs. Mary Langlois Major, including the above described real estate, ...”

In 1923, Albin Major acquired 30 acres of land from John Gerage, which was never sold and which was not included in his succession or in the succession of his wife. This suit was filed by the children of the second marriage, or their descendants, against the children of the first marriage, or their descendents, for a declaratory judgment declaring the said property to belong to the plaintiffs.

After trial on the merits, the trial judge found that the children of the first marriage had divested themselves of any interest in the said property by virtue of the above quoted language in the compromise agreement, and rendered judgment in favor of plaintiffs. Defendants have appealed.

In this court, defendants argue that the trial court erred in characterizing the agreement as a transaction or compromise rather than a partition; and in failing to apply Article 1380 of the Civil Code which provides:

“If, after the partition, a discovery should be made of some property not included in it, the partition must be amended or made over again, either in totality, or of the discovered property alone.”

What defendants overlook is that property not specifically described in the agreement is nonetheless included therein by the express and unambiguous terms thereof, as hereinabove quoted. The fact that the property is included by omnibus description rather than specifically does not affect the validity of the transfer between the parties thereto. Williams v. Bowie Lumber Co., 214 La. 750, 38 So.2d 729 (1948). Valvoline Oil Company v. Krauss, 335 So.2d 64 (La.App.3rd Cir. 1976).

By virtue of the agreement of January 20,1950, however characterized, the defendants, in consideration of $34,000.00 cash and certain specifically described property, transferred all of their interest in the succession of their mother, as well as all property acquired by Albin Major during his marriage to their mother. The property which is the subject of this suit was necessarily included therein.

The judgment appealed from is therefore affirmed, at defendants’ cost.

AFFIRMED.


author: PONDER, Judge.

text:
    CREDIT BUREAU OF MORGAN CITY-BERWICK, etc. v. ELECTRICAL SYSTEMS & SERVICE, INC., et al. DRILLING & MARINE ELECTRIC SUPPLY COMPANY, INC. v. ELECTRICAL SYSTEMS & SERVICE, INC., et al.
    Nos. 14377, 14378.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Rehearing Denied Feb. 2, 1982.
    R. Scott Ramsey, Jr., Berwick, for plaintiff.
    Risley C. Triche, Triche, Sternfels & Nail, Napoleonville, for Sermac Elec. Systems, defendant in rule.
    Joseph T. Tynan, Burke & Mayer, New Orleans, for Zigler Shipyards, defendant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

SerMae Electrical Systems, Inc., claimant to some funds in the hands of a garnishee, appealed the judgment awarding the funds to the judgment creditors who had garnished the funds.

The issue is the propriety of summary procedure to resolve conflicting claims to garnished funds.

We affirm.

Electrical Systems and Service, Inc. which had a contract with Zigler Shipyards for some electrical work and which was in financial difficulties, agreed with SerMae that the latter would do the work with employees of both firms. In the meantime Credit Bureau of Morgan City-Berwick, Inc., and Drilling & Marine Electric Supply Company, Inc., secured judgments against Electrical Systems and Service. They garnished the proceeds of the contract with Zigler, naming both Zigler and SerMae as garnishee. Zigler answered the garnishment interrogatory that both Electrical Systems and SerMae had submitted invoices for work done by employees of both firms and that it did not know whether it owed Electrical Systems or not. SerMae answered denying it held any assets belonging to Electrical Systems.

Plaintiffs filed a rule to determine the rights to the money held by Zigler. SerMae filed exceptions of no cause of action, no right of action, and unauthorized use of summary proceedings. The court overruled these and held that the money had accrued to Electrical Systems because of the contract and that it was subject to seizure by Electrical Systems’ creditors.

SerMac contends that summary proceedings are not the procedure to determine title to contested funds in the hands of a garnishee, and cites Pelican Well Tool and Supply Co. v. Smith, 176 La. 896, 147 So. 27 (1933) and National Park Bank v. Concordia Land and Timber Co., 159 La. 86, 105 So. 234 (1925). We distinguish both cases. Pelican Well involves a contest between a garnishee and a third party. SerMac was made a garnishee originally but its negative answer was not traversed and it ceased being a garnishee. National Park Bank involved the garnishment of an unliquidat-ed tort claim.

First State Bank v. Burton, 222 La. 1030, 64 So.2d 421 (1953) stated that a garnishee, making no claim to the garnished funds but faced with conflicting claims could provoke a concursus or could resist the garnishment by stating that there were claimants other than the judgment debtor and require the plaintiff to bring in the other claimants. Zigler has pursued the second alternative. We approve that procedure.

For these reasons, the judgments are affirmed at appellant’s costs.

AFFIRMED.


author: WATKINS, Judge.

text:
    Julius W. CERDES v. Howard R. WRIGHT, et al.
    No. 14397.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 23, 1981.
    Rehearing Denied Feb. 2, 1982.

      Jon A. Gegenheimer & Kenneth A. Beou-bay, Gretna, for plaintiff.
    T. J. Seale, III, Hammond, for defendant, Howard R. Wright.
    Allen B. Pierson, Jr., Ponchatoula, for Ponchatoula Homestead Association.
    Robert W. Troyer, Ponchatoula, for Irene Collins.
    Rodney Cashe, Hammond, for Southern Pipe & Supply Co., Inc.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

Plaintiff, Julius W. Cerdes (Cerdes), a contractor, filed this suit seeking, among other things, to recover the remaining amount due under a building contract and certain “extras” allegedly necessitated by requested change orders. Made defendants were Howard R. Wright (Wright), the prospective owner of the home which Cerdes contracted to build, and Ponchatoula Homestead Association (Ponchatoula), which financed the building for Wright. Wright answered, denying that Cerdes was entitled to the remainder of the contract price, and reconvened, seeking a reduction of the contract price due to redhibitory defects, liquidated damages for delay on Cerdes’ part, attorney’s fees, and mental anguish. Wright also third-partied Ponchatoula, seeking damages for failure to perfect the building contract and for failure to supervise construction, as well as attorney’s fees. Wright also subsequently made Irene Collins (Collins), Cerdes’ surety on the building contract, a third-party defendant. Poncha-toula deposited the remainder of the contract price ($15,260.00) in the registry of the court and requested the court to disburse the proceeds.

Trial was held March 12 and 13, 1979. During trial, the trial court granted Collins’ oral motion for summary judgment, dismissing her from the case. At the close of trial, the case was taken under advisement by the trial court. Approximately one and a half years later, the trial court issued written reasons for judgment, finding that Cerdes substantially completed the home and awarding him the remainder of the contract price, $15,260.00. However, the trial court also ordered that materialmen’s and laborers’ liens amounting to $10,625.49 be paid from that amount. Further, the trial court found in favor of Wright on his reconventional demand against Cerdes and awarded him a total of $20,387.58, representing $10,000.00 for redhibitory defects in the home; $6,137.58 for the expenses of employing additional contractors to finish the project; $2,250.00 in liquidated damages for delay in completing the home within a reasonable time, and $2,000.00 in stipulated attorney’s fees. The trial court further rendered judgment dismissing Wright’s third party demand against Ponchatoula. From the judgment of the trial court, Cerdes has perfected this suspensive appeal.

The record reveals that Cerdes reached an agreement with Wright whereby Cerdes undertook to construct a home for defendant for a price of $43,150.00. Because Wright could not meet the payment clause specified in their agreement, he sought financing from Ponchatoula, which agreed to finance the construction for Wright. Concomitantly, a building contract was entered into between Cerdes and Ponchatoula, acting as Wright’s agent, whereby Cerdes agreed to construct a home according to plans and specifications submitted by Wright. Cerdes then began construction of the home.

Approximately nine months after the agreement was reached, Wright obtained an injunction ordered Cerdes to stop work on the job due to his delay in completing the job. Subsequently, Wright had other subcontractors complete construction of the house. Shortly thereafter, Cerdes filed suit, initiating the instant litigation.

On appeal, Cerdes contends that the trial court erred in reaching the following factual conclusions:

(1) In finding that Wright requested no change orders;
(2) In finding that Wright did not make any deviations from the plans and specifications upon which they had originally agreed;
(3) In finding that Cerdes was not entitled to an amount above the price set in the contract;
(4) In finding that Wright was entitled to an award of $20,387.58 on his re-conventional demand against Cerdes, and
(5) In finding that Cerdes was liable for the materialmen’s and laborers’ liens amounting to $10,625.49.

The scope of appellate review of factual conclusions of the trial court is limited to a review of the entire record to determine if those conclusions are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Hence, we will scrutinize the record in the instant case in light of that standard of appellate review.

Cerdes’ first and third contentions on appeal are closely related. Cerdes asserts that the trial court erred in finding that Wright had not requested change orders which resulted in extra costs to him.

The record reveals that Cerdes testified that Wright requested change orders which resulted in an extra cost of $3,914.00 to him. Wright denied that he requested these “extras” and no documentary evidence was offered to verify the requests. Under these circumstances, the trial court was correct in rejecting Cerdes’ demand for the extra costs.

Cerdes’ second contention on appeal is that the trial court erred in finding that Wright had not made deviations from the original plans and specifications. Cerdes argues that it was these deviations which resulted in the substandard work of which Wright complains and the alleged delay in completing the job. Again, there is no evidence other than Cerdes’ uncorroborated testimony to support a conclusion that Wright made the alleged deviations. We do not find that the trial court abused its discretion in rejecting that testimony.

Next, Cerdes asserts that the trial court erred in awarding $20,387.50 to Wright on his reconventional demand. Cerdes only generally attacks the award and does not give specific reasons why it should be reduced or eliminated. The first item of the award is $6,137.58 for payments made by Wright to various subcontractors, who completed the job. In support of his claim for these expenses, Wright testified as to the amounts expended to each contractor and introduced his cancelled checks to verify these costs. We find that this item of damages is supported by the record.

The second item of damages specified by the trial court is $2,250.00 in liquidated damages for delay in completion of the project. Cerdes contends that any delay in the project was caused by the alleged change orders and deviations requested by Wright and by inclement weather and shortage of materials in the area. The record reveals that the home was not completed until over nine months after Cerdes and Wright initially reached agreement.

A reading of the building contract shows that the blank providing for a com.pletion date was not filled in. Where no time for performance is stipulated, a reasonable time is implied, to be determined by the circumstances of the case. Owens v. Robinson, 329 So.2d 766 (La.App.2d Cir. 1976); Richard v. Foods and Services, Inc., 162 So.2d 213 (La.App. 1st Cir. 1964), writ denied, 246 La. 347, 164 So.2d 351 (La.1964). In the instant case, the trial court concluded that six months was a reasonable period for completion of the project. It also found that- Cerdes had caused a delay of three months failing to furnish materials and labor to the job site promptly. The trial court then awarded $25.00 per day liquidated damages for the delay as stipulated in the building contract. The evidence in the record supports the trial court’s conclusions. See Arceneaux v. Domingue, supra.

The next item of damages awarded to Wright by the trial court was a $10,-000.00 reduction in the contract price for redhibitory defects. It is well established that when a contractor substantially performs his obligation under a building contract, he is entitled to the contract price less the cost of completion and correction of unfinished or defective work. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961). Furthermore, damages for redhibitory defects are not available under a building contract. Airco, supra.

In the instant case, the fact that the contract in question is a building contract is not disputed. Moreover, Wright does not dispute, and the record supports, the trial court’s conclusion that Cerdes did substantially perform the contract. Airco, supra. See also Hemenway Company, Inc. v. Bartex, Inc. of Texas, 373 So.2d 1356 (La.App. 1st Cir. 1979), writ denied, 376 So.2d 1272 (La.1979). Hence, Wright was limited to recovery of the costs mentioned above for completion of the unfinished job and may not recover redhibitory damages. Accordingly, the trial court’s judgment will be amended to delete the award of $10,000.00 for reduction of the contract price.

Cerdes also contends that Wright is not entitled to attorney’s fees. However, the building contract specifically provides for attorney’s fees of $2,000.00 to be paid to the owner in the event that any controversy arises under the contract. Hence, the trial court was correct in awarding attorney’s fees pursuant to the contract.

Finally, Cerdes asserts that the court erred in ordering payment of the previously mentioned liens out of the proceeds deposited with the court. In brief, Cerdes does not provide the court with any reason why he should not be required to pay these liens. Our review of the record convinces us that the trial court was correct in its ruling.

For the foregoing reasons, the judgment of the trial court is amended to reduce the award to Howard R. Wright by $10,000.00. In all other respects, the judgment of the trial court is affirmed.

Costs of appeal are to be divided equally between Julius W. Cerdes and Howard R. Wright.

AMENDED AND AFFIRMED.

      . The trial court’s dismissal of Collins was not raised as an issue on appeal.


author: JASPER E. JONES, Judge.

text:
    OUACHITA EQUIPMENT RENTAL COMPANY, INC., Plaintiff-Appellee, v. Tommy TRAINER, et al., Defendants-Appellants.
    No. 14709.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Pipes & Pipes by William F. Pipes, Jr., Monroe, for plaintiff-appellee.
    Kostelka, Swearingen & Street by C. Daniel Street, Monroe, for defendant-appellant Trainer.
    Greenlee & Hurd by Edward R. Green-lee, Monroe, for defendant Brown.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

This is a suit on a truck lease. One of the defendants, Tommy Trainer, appeals from a judgment awarding damages to the lessor for breach of the lease and rejecting defendants’ reconventional demand. The other defendant, Jerry Brown, did not appeal.

Trainer is the owner of a service station in Monroe, La. He also owns and drives a truck and trailer rig. Brown took a training course to become a truck driver shortly before this controversy developed, and at times he had helped Trainer drive his truck. The defendants wanted to go into business together by acquiring a truck for Brown to drive. Brown was to receive twenty percent of the gross income from the operation of the truck as compensation for his services as driver. Defendants planned to split the net income from operation of the truck equally between them.

The defendants went to Rivers’ Ford, Inc. in Monroe to look for a truck. There they first contacted George Bennett, a salesman. Since Bennett was not experienced with truck sales he referred defendants to O. J. Whittington, the Sales Manager of Rivers’ Truck Department.

Defendants, particularly Trainer, due to his experience as a trucker, wanted certain features on their truck. It was Trainer who primarily handled the negotiation of the lease for the defendants. They wanted a certain size tires, a Ranger 13 speed transmission, a Cummins engine and an air ride cab on the truck. The tires, transmission and engine were available on most brands of trucks, but the air ride cab was an exclusive Ford feature. The Ford air ride cab produces an exceptionally smooth ride which makes it highly desirable for use in long haul trucking. The air ride cab is apparently vastly superior to air ride seats which are offered by almost all manufacturers. Rivers’ did not have a truck on its lot equipped as defendants desired, so Whit-tington began trying to locate one.

When Whittington got a suitable truck the defendants were to lease it from Oua-chita Equipment Rental Company, Inc. (sometimes hereinafter called OER), the plaintiff. The record shows that OER and Rivers’ Ford are very closely related corporations. OER and Rivers’ have some common owners and at one time were located in the same building.

The plan was for Whittington to locate a suitably equipped truck at another Ford dealer. Rivers’ would then buy the truck and sell it to OER which would lease it to defendants. The defendants then planned to lease the truck to Melton Truck Lines of Shreveport and operate it for them.

In the weeks following the defendants’ visit to Rivers’ Ford, Whittington was able to locate several trucks. However, they were either unsuitable or unavailable by the time Whittington could contact Trainer, who was often on the road. Finally, Whit-tington located a truck in Greenville, Miss, that appeared suitable and contacted Trainer.

Rivers’ refused to get the truck from the Greenville dealer before Trainer and Brown signed the lease with OER. Thus, the defendants were required to sign the lease while the truck was still in Greenville. After Trainer and Brown signed, Rivers’ dispatched a driver to Greenville to bring the truck to Monroe.

Once the truck was brought to Monroe the defendants examined it. They noted several minor defects including a damaged shock absorber, a missing radio speaker, a missing mattress in the sleeper and damage to the exhaust stack. Trainer also saw a piece of equipment underneath the cab that he took to be the air ride cab suspension. Rivers’ corrected the problems with the truck and made arrangements to have Adair’s install a fifth wheel on the truck.

Trainer drove the truck the twelve to fifteen blocks from Rivers’ to Adair’s. Trainer left the truck there for the work to be done.

The following Monday morning the defendants picked up the truck from Adair’s. They then took the truck to Shreveport to make their arrangements with Melton. Brown drove the truck and Trainer drove a second vehicle. On the trip to Shreveport the truck rode very roughly.

Upon arrival in Shreveport, the defendants drove to the Melton terminal to have the truck inspected by Melton and to sign the necessary contract with Melton. While they waited for the truck to be inspected Trainer regaled the Melton inspectors with his description of the virtues of the new truck, especially its air ride cab. Soon after beginning their inspection the inspectors noticed that the truck was not equipped with an air ride cab, and they so informed Trainer.

Once Trainer recovered from his initial surprise at this information he told Brown and together they went into the terminal and Trainer called Whittington. Brown listened to the conversation on an extension phone. The two versions of the conversation differ slightly.

According to defendants, once Whitting-ton was told the truck was not equipped with an air ride cab he instructed them to return it. Whittington claims that Trainer said they were returning the truck and he merely replied that they could do so as far as he was concerned. Following the conversation the defendants returned to Monroe, left the truck with Rivers’ and have not had it since.

Because the defendants had the truck for only one day they refused to make any of the payments due under the lease and OER brought this action for the amount due under the liquidated damages provisions of the lease, interest and attorney’s fees. Trainer and Brown filed separate answers contending that the lease was invalid on account of fraud and/or error and both reconvened for damages for lost profits. After a trial on the merits the district court rendered judgment in favor of OER on the main demand and rejected the reconven-tional demands against it. Trainer appealed. We amend and affirm.

Trainer makes four assignments of error. First, that it was error to find that the parties had entered into a valid lease. Second, that the trial judge erred in finding that the lease was not vitiated by fraudulent misrepresentations or error as to the principle motive of the contract. Third, that the trial judge erred by awarding damages that are unreasonable and unconscionable in amount and not supported by law or evidence. Fourth, that it was error to reject Trainer’s reeonventional demand. We address only the second and fourth assignments of error.

The second assignment addresses the trial judge’s failure to find the lease vitiated by fraud or error as to the principal cause of the contract.

Consent to a contract can be invalid if produced by an error of fact. LSA-C.C. arts. 1819 and 1820. There is an error of fact when one is ignorant of a fact which exists or believes in the existence of a fact which actually does not exist. LSA-C.C. art. 1821.

Article 1825 of the Civil Code provides: “The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive and means that consideration without which the contract would not have been made.” (emphasis in original)

Civil Code Article 1826 provides:

“No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.”

Error as to the thing which is the subject of a contract invalidates the contract if the error is of the substance or some substantial quality of the thing. LSA-C.C. art. 1842. However, even error as to other qualities of the thing invalidate the contract when they were the principal cause or motive of the contract. LSA-C.C. art. 1845.

Thus, a contract may be invalidated for unilateral error of fact as to the motive when the other party knew or should have known what the motive of the contract was. Scoggin v. Bagley, 368 So.2d 763 (La.App. 2d Cir. 1979); Deutschmann v. Standard Fur Company, Inc., 331 So.2d 219 (La.App. 4th Cir. 1976); Jefferson Truck Equipment Co. v. Guarisco Motor Co., 250 So.2d 211 (La.App. 1st Cir. 1971). For Trainer’s defense of error to prevail it was necessary for him to prove three facts: his motive; that there was error as to that motive; and that OER knew or should have known of his motive.

That the trial court did not sustain this defense implicitly means that it found at least one of those facts not to have been proved. The trial judge in his written reasons for judgment made the following finding of fact:

“The Court cannot find from the evidence presented that there is sufficient justification for the position of the defendants that this was not the truck which they ordered and therefore finds that the plaintiff is .entitled to judgment as prayed for. . . The Court again states that it does not feel that the defendant met its special defenses in ascertaining that the truck delivered was not the one which was the subject of pre-contractural agreement.”

The district court here makes a finding of fact that appellant did not order a truck with an air ride cab and that the truck delivered without the air ride cab was the truck ordered by appellant.

This factual determination, which was the basis for the trial judge’s rejection of appellants’ defense of error, must be evaluated based upon a review of the evidence to determine if under the rule of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), it is clearly wrong, or if it is supported by substantial evidence, and for that reason cannot be disturbed on appeal.

The evidence in the record clearly shows that the motive of the defendants in leasing a Ford was to get a truck with an air ride cab. Trainer testified:

“. . I told him what I wanted, and I specified from day one that I wanted an air suspension cab. That was my whole purpose in buying something that had FORD on it. I can buy a 13 speed Ranger or 350 Cummins in any kind of truck, but I specified that I wanted the air suspension . . air ride suspension on the cab, and that’s why I wanted a Ford.” (emphasis in original. Tr. p. 130).

The same theme shown in the above excerpt appears repeatedly throughout the testimony of Trainer and Brown. They specified that the truck have an air ride cab, they wanted an air ride cab, and that was the only reason they were getting a Ford.

Bennett testified that Trainer had told him that they wanted an air ride cab the first time and every other time they talked about the truck. Bennett testified that when the truck arrived from Greenville all assumed it was equipped with an air ride cab:

“I think we all assumed that it was there really.” (Tr. p. 124)

Whittington admitted that Trainer had repeatedly requested the air ride cab feature in his conversations with him about getting a truck. Whittington admitted that he had placed the air ride cab upon the list of requirements for the truck that appellant had specified. Whittington further admitted that he had never specifically advised appellant that the truck obtained from Greenville and leased to appellant did not have the air ride cab:

“I did not ... did not tell him it did not have air ride but I went over the air ride seats and the other items that this truck did have.” (Tr. p. 47)

Further, as soon as it was learned that the truck did not have an air ride cab the defendants called long distance to complain and immediately returned the truck.

The evidence in the record so strongly shows that the defendants’ motive for leasing a Ford was to get an air ride cab that the factual determination to the contrary by the district judge is clearly wrong.

There is no doubt from the record that the truck was not equipped with an air ride cab. Thus, there was clearly an error of fact as to the motive, the defendants believed the truck they leased had an air ride cab when it did not.

The determinative question then is: did OER know or should it have known that the defendants’ motive for leasing a Ford was to get a truck with an air ride cab?

We note that the record shows that the defendants had relatively little contact with employees of OER. Ms. Diane Rowsey, an OER employee, took the lease to Trainer’s service station where defendants signed it so that Rivers’ would get the truck from the dealer in Greenville. A review of the description of the truck contained in the lease establishes that it contains no detailed description of the truck other than:

“1978 Ford CLT9000 with sliding fifth wheel No. X98LVCG5292.”

The description of the truck in the lease would not convey to appellant that it was not equipped with an air ride cab. The record contains a copy of a letter addressed to defendants from Walter Hastings, General Manager of OER, authorizing defendants to lease the truck to Melton Truck Lines, Inc., which was written before defendants discovered the truck did not have the air ride cab, but almost all of the contact between OER and defendants appears to have occurred after defendants returned the truck. It appears that no one who was directly employed by OER knew the defendants’ motive at the time the lease was signed. However, due to Whittington’s relationship with OER his knowledge of appellant’s motive in leasing the truck must be imputed to OER.

An agency may be established by a party’s conduct even though he did not intend to create it. Busby v. Walker, 84 So.2d 304 (La.App. 2d Cir. 1955) Cason v. Cecil, 194 La. 41, 193 So. 362 (1939). The knowledge of the agent is imputed to the principal even if the agent neglects to specifically convey that information to the principal. Marpco, Inc. v. South States Pipe & Supply, 377 So.2d 525 (La.App. 3d Cir. 1979); Bank of Louisiana v. Argonaut Insurance Company, 248 So.2d 349 (La.App. 4th Cir. 1971).

Hastings testified that Whittington worked closely with OER in its leasing operations. It was Whittington who negotiated the lease with Trainer and Brown. Whittington took the OER credit application from the defendants. Whittington assisted OER in its leasing business. OER knew and took advantage of that assistance. That conduct by OER established an implied agency. Thus, what Whittington knew or should have known as to the appellant’s motive must be attributed to OER.

The record shows that the air ride cab was an exclusive Ford feature designed to give a smoother ride. Defendants specified that their truck have an air ride cab the first time they talked to Whittington and Bennett, and Trainer repeatedly mentioned their desire for that feature in his later conversations with them.

Whittington had a list of features defendants wanted on their truck, and that list included an air ride cab. The other requested features mentioned in the record were certain tires, a Ranger 13 speed transmission and a Cummins diesel engine. Those features would have been available on many other brands of trucks but an air ride cab was an exclusive Ford feature.

Under the circumstances Whittington knew or should have known that the defendants regarded it as essential that the truck be equipped with an air ride cab. The factual finding of the trial judge which necessarily indicated Whittington and OER were unaware of this fact was manifestly erroneous.

The defendants’ motive was to lease a truck with an air ride cab. OER, through Whittington, should have known that was defendants’ motive. The defendants were in error when they leased the truck because they believed it was equipped with an air ride cab. Thus, there was error as to the defendants’ motive, and, therefore, the lease is invalid.

A similar conclusion was reached by this court in Ouachita Air Conditioning, Inc. v. Pierce, 270 So.2d 595 (La.App. 2d Cir. 1972). There the parties had a contract for the installation of an air conditioning condensing unit. The buyer’s home was equipped with a York system. When it failed he contacted plaintiff through a York serviceman and a York distributor. The parties agreed that plaintiff would install a new condensing unit. Neither party mentioned brand names but the buyer expected and wanted a York unit since the rest of his system was York. The plaintiff installed an Amana unit. Once the unit was installed the buyer refused to pay for it and the seller brought suit.

The court found that the buyer’s principal cause was to have a York unit rather than any other manufacturer’s unit installed. Plaintiff should have been aware of that under the facts, the court concluded, and since a York unit was not installed the contract was found invalid on ground of error.

In Gour v. Daray Motor Co., Inc., 373 So.2d 571 (La.App. 3d Cir. 1979), the court considered a case where the plaintiff had purchased an Oldsmobile which, unknown to him, was equipped with a Chevrolet engine. Plaintiff contended that his principal cause was to get an Oldsmobile equipped with an Oldsmobile engine. The court agreed on the ground that when one shops for an Oldsmobile it is reasonable to believe that he wants it equipped with an Oldsmobile engine rather than some other brand engine. The court found it should be presumed that the defendant knew of that motive because of the way the substitution of engines was concealed. The contract was found to be invalid.

These cases show that even though the thing delivered is very near what was requested by the party if it differed in the aspect which caused the party to enter the contract then there is error as to the motive or principal cause. Just as it is not enough that a party gets an Amana unit when he wanted a York unit or Chevrolet engine when he wanted an Oldsmobile engine, it is not sufficient that these parties got a truck when they wanted a truck with an air ride cab.

This case is also similar to Gour in that in both cases the difference between the thing desired and the thing delivered was not set out to the party. In Gour the court noted that General Motors carefully avoided mentioning the substitution of engines. In fact, it placed on top of the Chevrolet engine an air filter cover that made it appear to be an Oldsmobile engine.

Here Whittington never mentioned that this truck was not equipped with an air ride cab. However, he did state that it had air ride seats which could have easily misled defendants into believing the truck was properly equipped.

Appellant testified that he only became familiar with the air ride cab in a truck by once taking a ride in a truck equipped with the air ride cab. He stated the truck rode much smoother than any other truck in which he had ever ridden and it was for this reason that he wanted a truck equipped with an air ride cab. Appellant was unaware of how an air ride cab would look or of any particular observation which he could make to determine if a truck was equipped with an air ride cab. He stated that his inspection of the truck at the time he accepted delivery of it did not reveal to him that the truck was not equipped with an air ride cab. There is substantial evidence in the record to the effect that unless you know what you are looking for that a normal observation of a truck would not reveal to you whether or not the truck was equipped with an air ride cab. We find it entirely reasonable that appellant was unaware that the truck was not equipped with an air ride cab following his inspection of the truck and acceptance of the delivery of it.

The two supreme court decisions relied upon by OER in its brief, Stack v. Irwin, 246 La. 777, 167 So.2d 363 (1964), and Cryer v. M & M Manufacturing Company, Inc., 273 So.2d 818 (La.1973), are not contrary to any of the authorities hereinabove cited as they both recognized that error as to principal cause can form the basis for invalidating a contract.

Our decision on assignment two makes it unnecessary for us to consider assignments one and three. We now turn to assignment number four which goes to the district court’s failure to award damages for the lost profits claimed by Trainer in his recon-ventional demand. We conclude that demand was properly rejected.

The burden is on the party claiming damages to prove each and every element of them by a preponderance of the evidence. Roncensky v. Smith, 390 So.2d 1377 (La.App. 3d Cir. 1980); Davis v. Transamerica Insurance Company, 289 So.2d 862 (La.App. 4th Cir. 1974).

The evidence as to lost profits is found only in the testimony of Trainer. He estimates an average month’s gross income and then estimates certain expenses which would be deducted to arrive at the lost profit.

The estimate of gross income is unsupported by any underlying data. There is no showing that the business was available to produce the income. Further, there is some evidence in the record that shortly after the truck was returned there was a strike in the trucking industry.

The evidence in the record is insufficient to prove that there would have been any profit from the operation of the truck. Assignment four is without merit.

Defendant Brown did not appeal therefore the judgment as to him is not before us. The judgment of the district court is reversed insofar as it awards damages, interest, attorney’s fees and costs against Tommy Trainer, and it is amended to reject OER’s demands against Tommy Trainer.

As AMENDED, the judgment is AFFIRMED. All costs of this appeal are assessed against appellee, Ouachita Equipment Rental Company, Inc.


text:
    Linda P. REAGAN, Individually and on Behalf of her Minor Children, Plaintiff-Appellant, v. OLINKRAFT, INC. et al., Defendants-Appellees.
    No. 14712.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.
    En Banc.
    Rehearing Denied Jan. 18, 1982.
    Writ Denied March 19, 1982.
    Paul H. Kidd, Monroe, for plaintiff-appellant.
    Shotwell, Brown & Sperry by L. Michael Ashbrook, Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, Fontenot & Hurlburt by J. Winston Fontenot, Lafayette, for defendants-appellees.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

This is a wrongful death and survival action. Plaintiff appeals from a judgment sustaining an exception of no cause of action on the grounds that benefits under the workers’ compensation statute constitutes plaintiff’s exclusive remedy.

The decedent, Bobby Reagan, was employed as a back tender on a paper machine at a paper mill in West Monroe, Louisiana. Decedent worked very near to a paper machine which had large spinning rollers. While at work on October 6, 1979 decedent became entangled in the rollers and was pulled into the paper machine, crushed and killed.

Reagan’s widow, Linda, individually and as tutrix of her three minor children, brought this action against Olinkraft, Inc., the former operator of the mill, Manville Forest Products, Inc., the operator of the mill, Dominion Engineering of Quebec, Canada, a successor to the corporation which manufactured the paper machine, and seven individuals, James H. Willis, John W. Dollar, Leonard Deney, Ted McCroklin, John D. Mullens, Don Harrison and Don Woods, Sr., all of whom are officials in the mill. Plaintiff claimed damages totaling $4,765,000 for the death of her husband and father of her children.

All of the defendants, with the exception of Dominion Engineering, filed exceptions of no cause of action on the grounds that plaintiff’s sole remedy was for benefits under the workers’ compensation statute.

Plaintiff’s initial petition was drafted as an ordinary negligence action; she amended the petition in an effort to allege an intentional tort by amending paragraph 20 to read as follows:

Defendants Olinkraft, Inc. and Man-ville Forest Products Corporation, their agents, employees, and officers and particularly James H. Willis, John W. Dollar, Leonard Deney, Ted McCroklin, John D. Mullens, Don Harrison, and Don Woods, Sr., were well aware of the inherently dangerous operating condition and procedures associated with Number 3 Paper Machine in Plant Number 31 long before and on October 6, 1979. Said defendants were aware of prior accidents involving this same machinery and/or identical and/or essentially the same machinery. Safety and staff meetings at all levels of management involving all of defendants to discuss and to decide upon a future course of action, prior to October 6, 1979 as to the manner, method, modification, etc. of Number 3 Paper Machine and all other similar machines having the same inherently dangerous operating conditions and procedures. On each occasion of the various meetings, described above, two options were discussed, to-wit:
A. Shall we continue Number 3 Paper Machine and the other similar type machines which have the same inherently dangerous operating conditions and procedures in the way we have done in the past? or
B. Shall we spend the necessary moneys to modify and make safe Number 3 Paper Machine and other similar type machines to eliminate the inherently dangerous operating condition and procedures?
Full, complete, and detailed in-depth discussions with cost analysis for modifications were had by all of the defendants. Defendants were advised by each other and particularly by their Safety Director and his subordinates that a fatality could result from Number 3 Paper Machine and other similar type machines which were inherently dangerous, both as to operation and procedure of operation, unless modifications were made to the machinery to make them safe.
Defendants made a decision, being fully aware of all the ramifications as outlined above. They consciously and intentionally decided to continue the inherently dangerous operation and procedures of Number 3 Paper Machine and other similar or identical type machinery rather than spend the necessary moneys to make them safe. Defendants consciously refused to make the necessary safety modifications to Number 3 Paper Machine, which if they had been made would have prevented the death of Bobby G. Reagan. The above described intentionally and consciously perceptive acts of defendants constitutes the commission of an intentional tort because the results of their concious [sic] and perceptive decision to refuse to act could have been reasonably anticipated to result. (Johnson v. Chicago Mill and Lumber Co., [385 So.2d 878] La.App. 2d Cir. 1980). [sic] The acts of the individual above named defendants is imputed to Olinkraft, Inc. and Manville Forest Products, Inc. pursuant to the doctrine of respondeat superior.

The trial judge sustained the exceptions of no cause of action based on LSA-R.S. 23:1032. The action was dismissed as to Olinkraft, Manville, and the seven individual defendants.

On appeal plaintiff assigns as error the sustaining of the exceptions of no cause of action by the trial judge in view of the allegations of paragraph 20 of the amended petition. The issue is: does the petition allege an intentional tort? We conclude that it does not and affirm.

The crux of the allegations of amended paragraph 20 of the petition is that the defendants made an economically motivated decision not to improve the safety of the paper machine and that it could be “reasonably anticipated” that Reagan would die as a result. The allegations of paragraph 20 are the only ones not clearly within the scope of the provisions of R.S.23:1032 which provides plaintiff’s exclusive remedy under the workers’ compensation statute. For this reason we shall only consider the allegations of paragraph 20 in our determination of this appeal.

LSA-R.S.23:1032 limits the remedy of workers or their families to workers’ compensation rather than tort unless there is an intentional act involved in the injury. Under R.S.23:1032 intentional act means the same thing as intentional tort. Bazley v. Tortovich, 397 So.2d 475 (La.1981). Therefore, unless the petition alleges an intentional tort the exception of no cause of action is proper since Reagan was clearly within the course and scope of his employment at the time of his fatal injuries.

The function of the exception of no cause of action is to test the legal sufficiency of the petition. The language of the petition is construed in favor of its sufficiency. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). The well pleaded allegations of fact in the petition are taken as true and the exception is tria-ble on the fact of the pleadings. Eschete v. City of New Orleans, 258 La. 134; 245 So.2d 383 (1971). Thus, this case turns on whether or not, under any reasonable construction of the petition, assuming its allegations of fact to be true, there is an intentional tort alleged.

In Bazley, supra, the supreme court sets out what is required for an act to be intentional: the actor must either (1) desire the physical results of his act or (2) know that the consequences are certain, or substantially certain, to result. There is no allegation that the defendants desired the death of Bobby Reagan. Our inquiry is can the allegations of the petition be reasonably construed to mean that when the defendants decided not to alter the machine they knew that it was substantially certain that Reagan would be killed.

A comparison of the language used in the petition and the test set forth in the Bazley case is appropriate at this point. The petition alleges that the death “could have been reasonably anticipated.” In Websters New Twentieth Century Dictionary (2d Ed.) the definitions of anticipate include to foretaste or foreseen. Webster’s indicates that expect is a stronger word than anticipate. “Reasonably” means moderately or fairly. State v. Dority, 55 N.M. 12, 225 P.2d 1007 (1950); Horn v. Territory, 8 Okl. 52, 56 P. 846 (1899). Thus, the allegations of the petition could be restated as “moderately foreseen or “fairly foreseen.”

Bazley requires that the result be at least “substantially certain.” “Substantially” means about, practically, nearly, almost, essentially or virtually. St. Louis-Southwestern Railway Company v. Cooper, 496 S.W.2d 836 (Mo.1973); American Fed. of Government Emp. AFL-CIO v. Rosen, 418 F.Supp. 205 (N.D.Ill.1976). Websters includes “sure” and “inevitable” among its definitions of “certain.” The language of Bazley then might be restated as “virtually sure” or “nearly inevitable.”

It is evident that there is a wide gulf between what the petition alleges and what Bazley requires. This gap cannot be closed under the guise of liberal construction of pleadings. The best the petition can be said to allege is that the defendants knew there was a fair chance that Reagan’s death might result from their decision, while Baz-ley requires an allegation that the defendants knew there was almost no chance of anything other than death resulting.

Even if plaintiff proved all of the allegations of the petition, she would still be limited to workers’ compensation benefits by R.S.23:1032 since the allegations are insufficient to be an intentional tort even if proved. Thus, the exception of no cause of action was correctly maintained.

The result we have reached is supported by the case of McDonald v. Boh Bros. Const. Co., Inc., 397 So.2d 846 (La.App. 4th Cir. 1981). In McDonald an injured worker attempted to avoid R.S.23:1032 on the strength of allegations that he had been intentionally ordered to work in a dangerous way at a dangerous place( exposing him to great risk of harm. The court held those allegations were insufficient to state a cause of action because there was no allegation that the co-employee who gave the orders knew or should have known that the accident was substantially certain to follow.

. The substance of the allegation in McDonald was that the worker had been made to do a very dangerous job. The Fourth Circuit found that was not enough to allege an intentional act. That is the same situation we have here. Plaintiff alleges that Reagan was required to do a very dangerous job, but none of plaintiff’s allegations can reasonably be interpreted to mean that the defendants knew it was substantially certain that Reagan would be injured or killed. Thus, the allegations in plaintiff’s petition fail to allege that Bobby Reagan’s death was the result of an intentional act of appellees within the contemplation of R.S. 23:1032.

At appellant’s cost, the judgment is AFFIRMED.

      . R.S.23:1032: The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.