author: DENNIS, Justice. SUMMERS, C. J.,

text:
    Floy Taylor BATEN v. Ruby Mae Baten TAYLOR.
    No. 63660.
    Supreme Court of Louisiana.
    Oct. 8, 1979.

      Thomas J. Sibley, Beaumont, Tex., Gerald LeVan, Baton Rouge, for defendant-applicant.
    Raymond A. Beyt, Beyt & Beyt, Lafayette, for plaintiff-respondent.
   DENNIS, Justice.

This case presents the question of whether a testator can make a valid will bequeathing his property to his wife, upon the condition that she survive him for thirty days, or, if the condition is not fulfilled, to his nephews.

The testator’s sister unsuccessfully attacked the will in the district court and appealed. The court of appeal reversed, holding that the disposition is null because it conflicts with Civil Code Article 1520, which prohibits any disposition constituting a substitution as defined by that article, and Article 1609, which gives the universal legatee seizin of the succession immediately at the testator’s death. Accordingly, the intermediate court decreed that the deceased’s estate, which was his separate property, must be transferred as an intestate succession, effectively depriving the widow of her husband’s property even though she had survived him for thirty days. We reverse, upholding the will, because the double conditional legacy is not a prohibited substitution as defined by the code and does not prevent seizin of the succession immediately at the testator’s death. .

Decedent, Gordon D. Baten, died testate on February 2,1974 at his domicile in Beaumont, Texas, leaving separate immovable property situated in Louisiana. He was survived by his widow, Floy Taylor Baten, and his sister, Ruby Mae Baten Taylor. He left no ascendants or descendents.

The testament, valid in form, contains the following dispositive provisions:

2.
I give, devise and bequeath all of my property, real, personal or mixed, wheresoever located to my beloved wife, Floy Baten, should she be living at my death.
3.
In the event my said wife shall have predeceased me, or should my said wife and I die under circumstances that there is not sufficient evidence to determine the order of our deaths or if she shall die within a period of thirty (30) days after the date of my death, then all bequests, devises and provisions made herein to or for her benefit shall be void; and my estate shall be administered and distributed in all respects as though my said wife, Floy Taylor Baten, had predeceased me.
4.
In the event of any of the happenings set forth in paragraph numbered 3 of this my will, I then give, devise and bequeath all of my property, real, personal or mixed, as follows:
(a) An undivided one-fourth (Vi) thereof to Virgil Taylor, Box 3283, Radford, Virginia;
(b) An undivided one-fourth (Vi) thereof to Jon Taylor, who is the son of Virgil Taylor, and who teaches at the University of Jacksonville, Florida;
(c) An undivided one-fourth (!A) to Dan Taylor, Radford, Virginia;
(d) An undivided one-fourth (Vi) to Bill Taylor, who resides in the State of Oregon.

Mrs. Baten survived her husband for thirty days, fulfilling the condition of survivor-ship. She instituted ancillary probate proceedings resulting in a judgment of possession on January 19, 1977, which recognized her as the surviving spouse of the decedent and, as legatee under his will, entitled to the ownership of all Louisiana property belonging to him.

On October 14,1977, the decedent’s sister, Ruby Mae Baten Taylor, filed a petition of intervention in the ancillary probate proceedings, seeking to annul the will and to have that portion of the judgment of possession recognizing Mrs. Baten’s legacy set aside. Mrs. Taylor alleged that, as the decedent’s sole intestate heir, she should be placed in possession of all of his Louisiana property, because the legacy to his widow contained a prohibited substitution and was therefore null.

The matter was tried on a joint stipulation of facts. The interpretation and validity of the testament were the only issues presented. After the trial, the district court rejected Mrs. Taylor’s attack upon the will and upheld the universal legacy to the widow, Mrs. Baten. Mrs. Taylor appealed to the court of appeal.

• The court of appeal, holding that the conditional bequest was prohibited by law, concluded:

At the outset, we find that the first difficulty encountered in the legacy involves our concept of seizin and le mort saisit le vif. By his very terms, the testator attempted to keep title to his property in abeyance for an indefinite period following his death. Under a literal interpretation of the will, no one would get title to the property until either one of the two things occurred: (1) The expiration of thirty days, or (2) [t]he death of the wife. This does not conform to our law on successions.
******
However, if the wife is considered seized of the property under the testament from the moment of the testator’s death, a second difficulty arises because the will then contains a prohibited substitution in violation of Article 1520 of the Civil Code. 364 So.2d 226, 228-29 (La. App. 3d Cir. 1978).

Preliminarily, we must decide whether the condition attached to the wife’s bequest is suspensive or resolutory. The condition of survivorship for thirty days is suspensive under a common sense interpretation, considering the nature and purpose of the clause. The brief period stipulated and the other provisions of the will indicate the testator’s intention was to avoid multiple taxes and a transfer of the succession to his wife’s heirs if she died closely following him. Thus, the survivorship clause is very similar to standard suspensive conditions employed for these purposes by practitioners in Louisiana and other states. See, Rubin & Rubin, Louisiana Trust Handbook, 164, 177 n. 16 (1968); Oppenheim, 10 Louisiana Civil Law Treatise, Successions and Donations, § 128, p. 252; Atkinson, Atkinson on Wills, 828 (2d ed. 1953); Murphy, 1 Murphy’s Will Clauses, 27 (1978). Although the testator’s language is ambiguous, we do not think he intended to create the possibility of a vesting of full ownership in his wife for a period of less than thirty days and a subsequent transfer to his nephews.

The issues presented are: (1) whether a double conditional legacy, whereby the first legatee’s bequest is subject to a suspensive condition that he survive the testator for thirty days and the second legatee’s bequest is conditioned upon the lapse of the first legacy, is a substitution prohibited by Civil Code Article 1520 and (2) whether a universal legacy dependent upon a suspensive condition is in conflict with the rules of seizin.

1. Prohibited Substitution

The double conditional legacy is not a prohibited substitution because it does not: (1) constitute a double disposition, in full ownership, of the same thing to persons called to receive it one after another; (2) impose upon the first beneficiary a charge to preserve and transmit the succession property; and (3) establish a successive order that causes the property to leave the inheritance of the burdened beneficiary and enter into the patrimony of the substituted beneficiary. A prohibited substitution, as defined by Civil Code Article 1520, must have all of these characteristics.

Louisiana Civil Code Article 1520, as amended in 1962, provides:

Substitutions are and remain prohibited, except as permitted by the laws relating to trusts.
Every disposition not in trust by which the donee, the heir, or legatee is charged to preserve for and to return a thing to a third person is null, even with regard to the donee, the instituted heir or the legatee.

The Louisiana State Law Institute, in its report to the Legislature accompanying the Trust Code, explained the essential elements of a prohibited substitution, defined by Civil Code Article 1520, as follows:

The second paragraph of Article 1520 specifies and defines the disposition prohibited in the first paragraph, which is identical with its French counterpart, Article 896, C.N., except for the provisions relating to trusts. It is, for example, a disposition conceived in these terms: “I bequeath my farm Blackacre to Paul, and I charge him to preserve and transmit it at his death to LeDoux.”
The constituent characteristics of this prohibited substitution that are implicit in this definition are:
(1) A double liberality, or a double disposition in full ownership, of the same thing to persons called to receive it, one after the other;
(2) Charge to preserve and transmit, imposed on the first beneficiary for the benefit of the second beneficiary;
(3) Establishment of a successive order that causes the substituted property to leave the inheritance of the burdened beneficiary and enter into the patrimony of the substituted beneficiary.
This is in accord with settled French doctrine and jurisprudence, and it is in this sense that the term “substitution” is used in the Civil Code, and by derivation from the Code in the Constitution. Report-Trust Code 3A LSA.-R.S. p. XXXIII, XXXVIII (1965).

We are convinced that the Law Institute’s interpretation of Article 1520 is correct. As its report indicates, the Article implies the foregoing definition of a prohibited substitution, and the term is used in this sense in French doctrine and jurisprudence. 3 Civil Law Translations, Aubry & Rau § 694, pp. 307-23; 3 Planiol, Civil Law Treatise §§ 3278-83, pp. 593-95. Moreover, the report of the Law Institute is entitled to great weight as reflecting legislative intent in this instance. The Institute, to open the way for a new trust code which it had been instructed to draft by the Legislature, prepared amendments to Article 1520 to clarify the meaning of a prohibited substitution and to remove any obstacle to an effective trust device in Louisiana. See Oppenheim, Trust Code — Introductory Comment 3A LSA.-R.S. XXVII p. XXIX (1965). The Legislature evidently endorsed the Law Institute’s definition of a prohibited substitution by adopting the amendments and enacting the new trust code on the basis of its report.

The definition of a prohibited substitution which we infer from Article 1520, furthermore, is consonant with the original legislative motive for prohibiting substitutions. The reasons assigned for the prohibition are to prevent the making of gratuities to future generations; to prevent property left to an existing generation from being made inalienable, 3 Planiol, supra, § 3197; and to ward off all of the objectionable consequences from such dispositions. See Tucker, Substitutions, Fideicommisa and Trusts in Louisiana Law: A Semantical Reappraisal, 24 La.L.Rev. 439, 454 (1964).

The disposition at issue in the present case has none of the characteristics of a prohibited substitution, as defined by Article 1520. First, it does not make double disposition of the same thing, in full ownership, to persons called to receive it one after another. Since the widow’s legacy was subject to a suspensive condition, she would not have received the succession in full ownership if she had failed to survive the testator for thirty days. The second legacy to the nephews was under condition of the failure of the condition of the widow’s legacy. As a result of the retroactivity of the condition, the nephews could have received the property only in default of the widow’s legacy, not after her.

Second, there was no charge to preserve resting on the first legatee. It is not necessary for the creation of a substitution that the disposer make use of the identical terms found in Article 1520. It suffices that the charge to preserve and to deliver necessarily result from the tenor of the disposition, or, what amounts to the same thing, that it is impossible to execute the disposition without preserving and making restitution of the property given or bequeathed. See, 3 Aubry & Rau, supra, § 694, p. 315. The disposition at issue in the present case, however, by its wording, purpose and tenor, does not imply a charge to preserve. If the suspensive period had been longer, it could be argued that the legacy would be impossible to execute without a charge to preserve. The brief thirty-day suspensive period, however, allows execution of the disposition without this effect.

Finally, for the same reasons that there was no double disposition, the will does not establish a successive order whereby the property could leave the inheritance of the first beneficiary and enter into the patrimony of the substituted beneficiary.

The type of double conditional legacy presented in this case has been approved repeatedly by the French Courts and commentators. French jurisprudence has held that there is no prohibited substitution “when a legacy, though made in full ownership, is made to depend on a suspensive condition, with the clause that in case the condition fails, the thing shall be given to a third person.” 3 Aubry & Rau, supra § 694, p. 309. An illustration of this double conditional legacy is the legacy made to Primus on the condition that he marries, or that he marries before a certain age, or that he lives to a certain age, with the stipulation that, if this condition is not accomplished, the property will be bequeathed to Secundus. Tucker, supra, at 481; 3 Aubry & Rau, supra, at 309; 3 Planiol, supra, § 3295, p. 601.

The underlying considerations upon which French jurisprudence has based its approval of such dispositions, according to John H. Tucker, Jr., are as follows:

(1) It constitutes two legacies under a suspensive condition, the first legacy under the condition described in the illustration, the second legacy under the condition of the failure of the condition of the first legacy.
(2) As a result of the retroactivity of the condition, the second legatee (Secun-dus) is considered as receiving the property not after the first legatee (Primus), but in default of him, and there is no successive order.
(3) There is no real charge to preserve and render resting on the first legatee.
(4) In such a case, the testator will be considered to have bequeathed the usu-fruct to Primus for the period intervening between his receipt of the legacy and the failure of the condition, even if he has' not so specified.
(5) In some instances, the courts have annulled a conditional legacy (e. g., “I bequeath my property to X if he attain 21 years; if he die before that this legacy will fail and be as not written.”), as containing a resolutory condition. However, the jurisprudence generally has validated double conditional legacies of the type given in the illustration, where the testator intends to maintain the first legacy, only if the legatee attains a certain age, or accomplishes a fact before a certain age without being concerned with whether the condition is resolutory or suspen-sive.
* * * * * *
Tucker, supra, at 481-82.

The court of appeal reasoned that, because the disposition in the present case is indistinguishable from a classic substitution, its enforcement would render Article 1520 and the jurisprudence developed around it meaningless. The rationale is based on a faulty postulate, however, because a classic substitution is one which contains all of the characteristics stated or implied by the second paragraph of Article 1520 and listed in the Law Institute’s Report. Thus, it is a disposition bequeathing property to A in full ownership, but requiring that he preserve the property and that, upon his death, it be delivered to B in full ownership. Since the disposition at issue in this case contains none of the three characteristics of a substitution, its enforcement does not conflict with Article 1520. Also, as the appellate court recognized, a review of the Louisiana cases reveals none in which a double suspensive conditional legacy was evaluated. The enforcement of the disposition here, therefore, does not conflict with the holdings in our previous opinions.

There is language in some of the cases which, if followed, would nullify conditional donations outside the ambit of Article 1520’s strict definition of a prohibited substitution. Many of those decisions may be disregarded as obsolete because they were focused on prohibiting the common law trust in Louisiana, now adopted to some extent in our trust code. See, Succession of Walters, 261 La. 59, 259 So.2d 12, 16 (1972) (Barham, J., concurring); Crichton v. Succession of Gredler, 256 La. 156, 235 So.2d 411, 421 (La.1970) (Sanders, J. dissenting). Fundamentally, however, all of the jurisprudence defining and applying the law of former Article 1520 must be reassessed in light of the amendments by which the Legislature has harmonized our definition of substitutions with French doctrine and the rule that penal and prohibitory laws should be strictly construed. Report — Proposed Trust Code 3A LSA-R.S., p. XLI. See, State v. Executors of McDonogh, 8 La.Ann. 171, 230 (1853); Heirs of Cole v. Cole’s Executors, 7 Mart.N.S. 414 (1829).

We conclude, for these reasons, that the disposition in the present case is not a substitution prohibited by Article 1520.

2. Seizin

The Civil Code articles pertaining to seizin do not prevent a testator from making a universal legacy subject to a suspen-sive condition. Immediately after the death of the deceased person, one of three classes of heirs is seized of the succession under the civil code schemfe. Seizin is given first to the forced heirs of the deceased. In default of a forced heir, it is given to the universal legatee. Finally, in the absence of a member of the first two classes, the legitimate heirs are seized of the deceased’s property. La. Civil Code arts. 887, 915, 940, 1607, 1609, and 1613. Consequently, when there are no forced heirs and the universal legatee has been installed under a suspen-sive condition, as in the present case, the legitimate heirs acquire seizin, under the codal order of priority, and remain provisionally seized of the succession until the condition is fulfilled. 3 Aubry & Rau, supra, § 719, p. 473; 21 Demolombe, Cours de Code Napoleon, § 561, p. 493; 3 Troplong, Droit Civil Explique des Donations Entrevifs et des Testaments § 1815, pp. 363-65; Planiol et Ripert, Traite Pratique de Droit Civil Francais § 653, pp. 818-20.

The Civil Code does not expressly or impliedly prohibit a universal legacy subject to a suspensive condition. The Code permits a testator to impose any conditions he pleases, whether suspensive or resolutory, provided they contain nothing contrary to law or good morals. La.Civ.Code arts. 1519, 1527, 1698, and 1699; 3 Aubry & Rau, supra, § 715. It makes no exception in the case of a universal legacy subject to a sus-pensive condition. To infer from the Code such an exception so as to maintain an immutable hierarchy of seizin would attribute to the lawmakers a bizarre sense of values. Under this interpretation of the law, the Courts would be required to thwart the testator’s will by declaring a universal legacy under a suspensive condition null whenever there were no forced heirs, rather than allow seizin to pass to the legitimate heirs. We therefore reject the contention that the redactors of the Code intended to create such an arbitrary restriction on the testator’s authority. Congruously, nothing we have found in the French jurisprudence or doctrine suggests that the concept of seizin either restricts or conflicts with the testator’s authority to make conditional legacies of all kinds. 3 Civil Law Translations, Aubry & Rau, § 694 n. 7-7 at 311; 3 Civil Law Translations, Aubry & Rau, Ch. 1, Part VII (Of the Permissible or Prohibited Conditions in Matters Pertaining to Intervivos or Testamentary Dispositions) §§ 691-97, pp. 285-358; Part IX (Preservation, Execution and Interpretation of Testaments. The Legacy) §§ 711, 719, and 723, pp. 434, 440, 473, and 484; 4 Civil Law Translations, Aubry & Rau, Ch. Ill (Of the Transmission of the Inheritance to the Heirs) § 609, pp. 97-106; 3 Planiol, Civil Law Treatise, Ch. Ill (Fiduciary Bequests or Substitutions) §§ 3265-98, pp. 587-604; Ch. I (Seizin of Heirs by Law) §§ 1929-43A, pp. 601-08.

Furthermore, since the enactment of the Code of Civil Procedure in 1961, the question of whether an heir has seizin is of less practical consequence. Article 3211 of the Code of Civil Procedure provides that the succession representative is deemed to have possession of all property of the succession and shall enforce all obligations in its favor. La.Code Civ.P. art. 3211; Cf. La.Code Civ.P. art. 685. According to the redactors, this provision is a deliberate departure from the former law relating to seizin and, as a practical matter, gives the succession representative full seizin of all the property of the deceased. La.Code Civ.P. art. 3211, Official Revision Comment (a). See generally, Nathan, supra, at 51; Comment, 49 Tul.L.Rev. 1110, 1122 (1975). Consequently, seizin is not suspended by the enforcement of the testator’s disposition of his property.

The court of appeal saw the concept of seizin as an obstacle to the enforcement of the will because it mistakenly equated seizin with ownership. Seizin is not ownership, however, but the legal investiture of one class of heirs with possession of the succession upon the death of the deceased, enabling the heirs who acquire seizin, from the instant of death, to bring all the actions which the deceased could have brought. Lazarus, The Work of the Louisiana Appellate Courts for the 1971-72 Term, 33 La.L.Rev. 199, 201-02 (1973); 3 Marcade, Explication Du Code Civil no. 47, at 33 (7th ed. 1873) as cited in Lazarus, supra, at 202 n. 12. Ownership, on the other hand, is transmitted by operation of law at the moment of death to heirs and legatees designated by the Code, regardless of whether they have seizin of a particular succession or whether they can ever have seizin. For example, although a legatee under a particular title cannot acquire seiz-in, he has ownership of the thing bequeathed to him from the day of the testator’s death. La.Civ.Code art. 1626. In order to be eligible for seizin, an heir must be either a forced heir, universal legatee or legitimate heir; and the latter two classes acquire seizin only in default of those preferred to them. Whether an heir acquires seizin depends, therefore, not on his ownership of succession property, but on whether he is a member of the class of heirs entitled to seizin of a particular succession according to the codal order of priority.

The redactors of the Code of 1825 made the distinction between ownership and seiz-in clear when they adopted the French system of succession, which embodies two different concepts: (1) Ownership rights of the heir are vested from the moment of the death, and (2) seizin, the faculty of claiming and exercising possession, is acquired by either the forced heirs, the universal legatee or the legitimate heirs at the moment of death. Lazarus, supra, at 201; Comment, 49 Tul.L.Rev. 1110,1111 (1975); 1 Louisiana Legal Archives, Projet of the Civil Code of 1825 at 115. In other words, as Planiol observes:

Seizin has nothing to do with the transfer of property, which takes place immediately, whether it is in favor of heirs who have seizin, or who are deprived of it. It affects only the taking of possession of the estate, which takes place in two forms, one for the property in kind, the other for the rights of action. 3 Planiol, supra § 1938, pp. 604-05.

Accordingly, we conclude that there is no conflict between a suspensively conditional universal legacy and the civil code’s seizin provisions. In the present case, the universal legatee having been installed under a suspensive condition, the legitimate heirs acquired seizin at the moment of death under the civil code scheme and remained provisionally seized until the legacy’s suspensive condition was fulfilled. Furthermore, the succession representative is given full seizin of the deceased’s property, as a practical matter, by Article 3211 of the Code of Civil Procedure. The survivor-ship clause in the present will, therefore, does not suspend seizin of the succession, but is a valid disposition of ownership subject to suspensive conditions.

Conclusions

The will in the present case contains a disposition made to depend on two suspen-sive conditional legacies. The disposition is not a prohibited substitution as defined by Louisiana Civil Code Article 1520, and it does not have the effect of suspending seiz-in of the succession. Accordingly, the testator’s will and the universal legacy to his wife are not contrary to law and should be enforced.

The judgment of the court of appeal is reversed and the judgment of the district court is reinstated at plaintiff-appellee’s cost.

REVERSED; DISTRICT COURT JUDGMENT REINSTATED.

BLANCHE, J., concurs in result without reasons.

SUMMERS, C. J.,

dissents for the reasons assigned by the Court of Appeal, 364 So.2d 226.

      . The court of appeal and the opponent of the will agreed with the wife that, literally construed, the thirty-day survivorship proviso attached to the wife’s universal legacy is a sus-pensive condition. Because of their premise that such a suspensive condition would be contrary to law, however, the appeal court and the opponent maintain that the clause should be construed as a resolutory condition. We are not constrained to give the clause this interpretation, however, because we conclude ultimately that their premise is incorrect. We instead view the condition as suspensive to carry into effect the intention of the testator.

      . Compare, Nathan, Common Disasters and Common Sense in Louisiana, 41 Tul.L.Rev. 33, 36 (1966).

      . Several well respected Louisiana commentators agree with the Court of Appeal’s position. See, Oppenheim, 10 Louisiana Civil Law Treatise, § 128, pp. 252-53; Kelleher, The Marital Deduction Under Louisiana Law, 26 Tul.L.Rev. 154 (1952); Nathan, Common Disasters and Common Sense in Louisiana, 41 Tul.L.Rev. 33 (1966). Their writings were more in the nature of practical advice to the drafters of wills, however, and their counsel to beware of the possible pitfalls of survivorship clauses was good advice given the status of Louisiana jurisprudence and doctrine at that time.

      . See Lazarus, supra, at 202 where he states:
      Although not as clearly formulated as they might have been, the pertinent articles of the Louisiana Civil Code do in effect make this distinction between the actual transmission of the inheritance to the heir, and the possession thereof which is rightfully deemed to be in the legitimate heir, although not actually so. Thus, article 940 speaks of the acquisition of the inheritance by the heir immediately upon the death of the deceased, whereas articles 942 and 943 speak of the possession thereof which is continued in the person of the heir “with all its defects as well as all its advantages, the change of proprietor producing no alteration in the nature of the possession.” (footnotes omitted).
      See also La.Civ.Code arts. 870, 871, 1626 and cf. art. 949.


source: Caselaw Access Project

author: DIXON, C. J.

license: Public Domain

text:
    STATE of Louisiana ex rel. Ogie RICHARDSON v. Frank C. BLACKBURN et al.
    No. 65476.
    Supreme Court of Louisiana.
    June 13, 1980.
   In Re: Ogie Richardson, applying for Writ of Mandamus, Orleans Parish (Number Unknown).

Denied.

DIXON, C. J.

concurs in the denial. The filing in the district court cannot be located. The relator must file again in the district court.


text:
    In the Interest of Stacy EDLER.
    No. 67612.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Carol Vicknair Edler, Wife of/and Walter Edler, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, 382 So.2d 267. Parish of St. John The Baptist, 29th JDC. No. 10763.

Writ denied.

DENNIS, J., concurs in the denial for the reason that the result is correct.

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


text:
    Henry LeBOYD et al. v. Wilbert JENKINS.
    No. 67615.
    Supreme Court of Louisiana.
    June 13, 1980.
   In Re: Henry LeBoyd, et al., applying for Certiorari, or writ of review, to the Court of Appeal Fourth Circuit, Parish of St. Charles, Number 10388, 381 So.2d 1290.

Denied.

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

DENNIS, J., concurs in the denial for reason that the result is correct.


author: DIXON, Chief Justice. MARCUS, Justice LEMMON, Justice, BLANCHE, Justice

text:
    STATE of Louisiana v. WALDEN BOOK COMPANY, Southland Corporation, General Host, Pearson’s Pharmacy, Shreveport News Agency, Inc. et al.
    No. 67768.
    Supreme Court of Louisiana.
    July 3, 1980.
    Concurring Opinion Aug. 15, 1980.

      David W. Robertson, Gravel, Robertson & Brady, Alexandria, for relator-intervenor.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Edward E. Roberts, Asst. Dist. Atty., for respondents.
   DIXON, Chief Justice.

The question in this case is whether the June, 1980 issue of Penthouse magazine is protected under the First Amendment of the United States Constitution and Article 1, § 7 of the Louisiana Constitution of 1974 (freedom of the press). Certain pornography is not accorded the protection of the First Amendment, and may be regulated by the states under strictly drawn statutes and under federal constitutional standards as found by the United States Supreme Court. In Louisiana pornographic material is regulated under the carefully drafted “obscenity” statute, R.S. 14:106.

Louisiana’s statutory scheme for the regulation of obscene conduct and material in R.S. 14:106 defines the crime of obscenity in several ways, and makes criminal the display, distribution and sale of “obscene material,” which is further defined in some detail. Before there can be any prosecution, or even arrest, for distribution of obscene material (except for “explicit, closeup depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts”) there must be an adversary hearing, the sole issue at which "shall be whether the material is obscene.”

On May 19,1980 the state instituted such an adversary hearing under R.S. 14:106 F against five Rapides Parish booksellers, seeking a declaration that the June, 1980 issue of Penthouse magazine is obscene. All five defendants, instead of contesting the proceeding, chose to remove the publication from their shelves. Penthouse, Ltd., publisher of the magazine, intervened to defend the obscenity charge. The district judge found the magazine to be obscene. We reverse the ruling of the district court and find that the June, 1980 issue of Penthouse magazine is not obscene because the publication, taken as a whole, does not lack serious literary, artistic, political, or scientific value under R.S. 14:106A(3).

The district court’s determination that material is or is not obscene presents an issue of law fully reviewable by this court. See R.S. 14:106F(3). The factual determination of obscenity by the district judge is subject to full appellate review, to meet constitutional standards designed to effectuate freedom of expression. Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974); State v. Luck, 353 So.2d 225 (La.1977). The United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) recognized that every obscenity case involves an exercise of constitutional judgment, and that the scope of review must be broader than that of a more conventional factual determination. For this reason there must be an independent review to determine if the challenged material is in fact “obscene.”

The United States Supreme Court established basic guidelines governing obscenity in the Miller case, supra, and these guidelines have been followed in R.S. 14:106. That statute defines obscene material as:

“. . . any tangible work or thing which the trier of fact determines (a) that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest, and (b) depicts or describes in a patently offensive way, hard core sexual conduct . . . and (c) the work or thing taken as a whole lacks serious literary, artistic, political, or scientific value.”

In State v. Luck, supra, this court established the rule that the state bears the burden of proving that material is obscene beyond a reasonable doubt. This rule accomplishes the statutory purpose of preventing undue invasions or inhibitions of constitutionally protected expression. See McKinney v. Alabama, 424 U.S. 669, 96 S.Ct. 1189, 47 L.Ed.2d 387 (1976). Therefore, proof of each of the three elements of obscene material must be established beyond a reasonable doubt.

An examination of the magazine reveals that the state has proven beyond a reasonable doubt that: the magazine taken as a whole appeals to the prurient interest at least in effect (the sexual orientation is neither minor nor subordinate); and depicts or describes in a patently offensive way, hard core sexual conduct. Whether the magazine, taken as a whole, lacks serious literary, artistic, political, or scientific value requires a closer analysis.

There has been hardly any development in the jurisprudence of this essential element of “obscene material” since Miller v. California, supra. The meaning of “work, taken as a whole,” occupies a significant position in the test for obscenity. In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the United States Supreme Court held that an entire book could not be condemned as obscene because of isolated obscene passages in it. “Taken as a whole” reflects a standard which would permit the banning of unarguably obscene work only as a discrete unit.

The United States Supreme Court has examined several magazines, using the “taken as a whole” standard since the isolated excerpt approach was first rejected in Roth. In Manual Enterprises v. Day, 370 U.S. 478, 489, 82 S.Ct. 1432, 1438, 8 L.Ed.2d 639, 648 (1962), the court rejected the government’s “isolated excerpt” approach, stating:

“. . . Whether ‘hard-core’ pornography, or something less, be the proper test, we need go no further in the present case than to hold that the magazines in question, taken as a whole, cannot, under any permissible constitutional standard, be deemed to be beyond the pale of contemporary notions of rudimentary decency. We cannot accept in full the Government’s description of these magazines which, contrary to Roth . . ., tends to emphasize and in some respects overdraw certain features in several of the photographs, at the expense of what the magazines fairly taken as a whole depict.

Again, in Ginsburg v. United States, 383 U.S. 463, 466, 86 S.Ct. 942, 945, n.5, 16 L.Ed.2d 31, 35 (1966), the court stated:

“Our affirmance of the convictions for mailing EROS and Liaison is based upon their characteristics as a whole, including their editorial formats, and not upon particular articles contained, digested, or excerpted in them. Thus we do not decide whether particular articles, for example, in EROS, although identified by the trial judge as offensive, should be condemned as obscene whatever their setting.”

The language of Manual Enterprises and Ginsburg supports the idea that magazines generally are to be considered as whole works even though they are made up of separate articles. Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353 (C.A. 5th Cir. 1980). An exception occurs when there is a sham attempt to insulate obscene material with non-obscene material. See Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972). The classic example of such a sham is the insertion of obscene material between books of the Bible.

Only by taking the magazine as a whole can it be determined whether it lacks serious literary, artistic, political, or scientific value. The requirement that the value be “serious” does not mean that humorous or irreverent vehicles for value are to be rejected. The addition of the “serious” element allows the trier of fact to look to the intent upon which the insertion of literary, artistic, political, or scientific material is based. If that intent is to convey a literary, artistic, political, or scientific idea, or to advocate a position, then the intent is “serious.” See Schauer, The Law of Obscenity, The Bureau of National Affairs, Inc. (1976).

In order to determine whether the magazine, taken as a whole, lacks serious value, it is necessary to weigh those portions of the magazine which possess serious value against those which do not. The contents of the magazine must be balanced quantitatively and qualitatively to take the work as a whole.

An analysis of the magazine reveals the following quantitative results:

Total pages, 228;
Full page advertisements (of nationally advertised products), 65;
Articles with serious value, 67 pages;
Articles lacking serious value, 96 pages.

The editorial policy of Penthouse magazine is to provide entertainment for men. The features in the June, 1980 issue of Penthouse are consistent with the editorial philosophy. Included is an article about how the economy is affected by the interactions of OPEC and the United States banking industry; an article about the execution of a Saudi Arabian princess which was the subject of a controversial PBS television documentary; an essay entitled “Stop the Draft” which explores why the volunteer army is not working; an interview with child evangelist Michael Lord; an article discussing the pros and cons of various cameras; an excerpt from a new novel about the goings on in a circus; a fashion layout showing swimwear; a consumer report on the Volkswagen Rabbit convertible; reviews of travel spots, movies, books and music, in addition to stories and articles dealing with sex-related subjects and photographs of nude women which depict hardcore sexual conduct.

Each serious article bears the name of the author, who is further identified with picture and thumbnail sketch in an introductory essay. Like the national advertising, the articles are like those to be found in many other periodicals which contain little or no “obscene” material. The subject of Robert Sherrill’s article on OPEC and the American banking and financial interests is of great political and economic importance, is advertised on the cover of the magazine, reviewed by the editors in the introductory essay, and is probably the most important article in the magazine. It is authoritatively presented and is a product of substantial research and expertise.

“The Death of a Princess” is an article of current interest on a subject of sociological importance by Andrew Duncan, who is introduced as an “expert on the Arab world.”

The excerpt from “Walking on Air” by Pierre Delattre is identified as part of a novel “which will be published by Houghton Mifflin.” This court is not prepared (nor qualified) to say it lacks serious literary value. “Stop the Draft” is a serious, if not frantic, exposition of the reasons opposing a political problem peculiarly affecting the audience likely to be attracted to the sexual content of the magazine.

These articles are not a sham; they are not counterfeit. They are of a kind frequently and traditionally found in periodicals of general interest, particularly those not directed to a female audience. The subject matter is important and current. These articles convey ideas, and purport to convey serious information. They do not lack serious political and scientific value, nor even serious literary value.

Even though a magazine depicts hard core sexual conduct which appeals to the prurient interest and is patently offensive, under our statute it cannot be obscene unless “taken as a whole, it lacks serious value.” We cannot say that this magazine, taken as a whole, lacks serious political or scientific or literary value beyond a reasonable doubt.

Therefore, the district court’s finding that the June, 1980 issue of Penthouse magazine is obscene is reversed.

MARCUS and LEMMON, JJ., dissent and assign reasons.

BLANCHE, J., concurs and assigns reasons.

MARCUS, Justice

(dissenting).

In my view, we need consider the whole magazine only where there is some connection between the patently offensive section and the magazine as a whole. In the instant case, there is no such connection. Therefore, we need consider only the patently offensive section which clearly lacks any serious literary, artistic, political or scientific value. Since it also appeals to the prurient interest and depicts hard-core sexual conduct in a patently offensive way, I consider it to be obscene. Accordingly, I respectfully dissent.

LEMMON, Justice,

dissenting.

When applied to a magazine containing numerous unrelated articles, the phrase “taken as a whole” in R.S. 14:106A(2) means that each article must be examined in its entirety for serious literary, artistic, political or scientific value. The majority’s interpretation of that phrase allows a publisher to publish 96 pages of obscene materials, which iould not legally be published alone, and to evade the statutory prohibition by adding 67 pages of totally unrelated materials which themselves have literary, artistic, political or scientific value. Approval of the sham procedure does violence to the letter and the spirit of the obscenity statute.

BLANCHE, Justice

(concurring).

The procedural posture of the case is unique and requires examination. It began as a criminal prosecution of five places of business (named as defendants) which are accused of violation of R.S. 14:106(F) by selling material defined as obscene by R.S. 14:106(A)(3). According to the procedure established by this statute, before the defendants can be convicted there must first be a determination that the material involved is obscene. The material in question is the June, 1980 issue of “Penthouse” magazine.

At the hearing held for the purpose of determining the preliminary question of obscenity, four of the defendants did not appear. However, a legal representative for the publisher, Penthouse International, Ltd., filed a petition of intervention alleging significant economic interest in the case; the attorney for one of defendants, Walden, also represented the intervenor. Penthouse was permitted to “intervene” in the case. Upon a finding by the court below that the June issue of the magazine was obscene, the intervenor alone applied to this Court for writs, which we granted.

The question of the propriety of this procedure is one which should be addressed and resolved before addressing the substantive question as to whether this issue of “Penthouse” fits the legal definition of obscenity.

The procedural law established in this state does not provide for intervention in a criminal proceeding, though intervention does exist in civil proceedings. The determination made at the preliminary hearing pursuant to R.S. 14:106 is criminal. State v. Luck, 353 So.2d 225, 228 (La.1977). Though not specifically established by the law of this state, when a question has a direct effect on the First Amendment rights of one who produces material which is alleged to be obscene, that person (whether a real person or a legal person, such as a corporation) must also be before the court, and the constitutional guarantees of due process require that no ruling as to the obscenity be made in the absence of the one whose fundamental rights may be affected. Otherwise, there may well be a taking of property without due process. Judicial efficiency will best be served by litigating questions which affect producers (e. g. filmmakers, writers, publishers) in the same hearing with the criminal prosecution of those selling or distributing the material, when the preliminary issue in such a criminal trial is whether the material (book, magazine, film, etc.) is obscene under the law. To that extent, though not specifically provided for by the statutory scheme, due process requires that a producer be made a party to the proceedings when the question is whether the material is obscene; the producer should be regarded as a party whose presence is indispensible and who must be given the opportunity to be heard before there can be any ruling of the court resolving the question of obscenity. The producer may intervene if he is not joined; his joinder could be had under the Long Arm Statute if he is out of the state. By thus making an analogy to the civil procedure for purposes of those non-criminal issues affecting the producer, all issues will be disposed of at one hearing rather than piecemeal. Furthermore, it must be recognized that, unless the producer is among those prosecuted under the criminal statute, his role in the proceedings is not that of a criminal defendant; thus, the burden of proof questions to which the courts must address themselves will differ when some parties are criminal defendants and others are being affected in a non-criminal matter. In the case of the former, proof must be beyond a reasonable doubt; in the latter case, because the matter is civil in nature, the standard to be used is proof by a preponderance of the evidence. Any review of the ruling dealing with the issue of obscenity must be by this Court, as a major facet of the ruling below is criminal, and the hearing must be held before a district court exercising criminal jurisdiction. This not only serves judicial efficiency by preventing multiple litigation of the same question, but it provides a logical and cohesive handling of a proceeding which originates as a preliminary step in a criminal prosecution. Because the First Amendment rights of the producer are so inextricably bound in the determination made under R.S. 14:106(F)(1), he must always be given the opportunity to be heard by the Court before that determination can be made.

I agree with the principle expressed by the majority, that it is proper to treat a magazine as a discrete unit for purposes of applying the three-part test of R.S. 14:106(A)(3). However, I do not believe that either Manuel Enterprises v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962) or Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966) are dispositive of the issue, as the majority would hold, since they make no definitive holding on the question. Federal jurisprudence since Roth v. United States, 354 U.S. 476, 77 5.Ct. 1304, 1 L.Ed.2d 1498 (1957), as well as the jurisprudence of this state (e. g. State v. Luck, supra), does treat magazines as a unit for the purposes of applying the tests of obscenity, but no firm holding has been based upon this principle nor full exposition of the question made by either this Court or the Supreme Court of the United States. Other federal courts have dealt with the question at greater length, e. g. Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353, 1366 (C.A. 5th Cir. 1980).

In applying the section 106(A)(3) test to the issue of “Penthouse” here in question, I agree that it does not constitute obscenity because it fails to fit into the third part of the test which requires that “the work or thing taken as a whole lacks serious literary, artistic, political, or scientific value.” I cannot say that this issue of the magazine does lack such value, when viewed as a whole; therefore, it cannot be considered obscene under the law of this state. Though portions of this issue of the magazine do meet the tests for obscenity, when taking it as a whole, as I believe we must do, I cannot find it obscene.

Though contrary to the holdings of this Court and the United States Supreme Court, this writer regards restriction by government of what type of literature our citizens may or may not read as the most obscene element in the case.

      . The state objects to the intervention, correctly noting the absence of statutory provisions permitting intervention in a criminal case. Our obscenity statute purports to regulate otherwise constitutionally protected conduct. Standards and procedures otherwise unknown to Louisiana criminal law are found there. This court has in the past treated contested elements of the statute as if their validity depended only upon compliance with directives of United States Supreme Court cases interpreting the First Amendment. See State v. Luck, 353 So.2d 225, 235 (La. 1977). Our statute requires an “adversary hearing” before an arrest can be made or a prosecution begun. No one is more interested nor better able to defend such a proceeding than the publisher, particularly, as here, the distributors did not oppose the state’s efforts. The intervention is not improper.

      . Expressions to the contrary in State v. Gambino, 362 So.2d 1107, 1111 (La.1978) are not correct, and to the extent it is in conflict with our opinion, the case is overruled.

      . (1) Except for those motion pictures, printed materials, and photographic materials showing actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, close-up depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts, no person, firm, or corporation shall be arrested, charged, or indicted for any violations of a provision of this Section until such time as the material involved has first been the subject of an adversary hearing under the provisions of this Section, wherein such person, firm, or corporation is made a defendant and, after such material is declared by the court to be obscene, such person, firm, or corporation continues to engage in the conduct prohibited by this Section. The sole issue at the hearing shall be whether the material is obscene.
      (2) The hearing shall be held before the district court having jurisdiction over the proceedings within seventy-two hours after receipt of notice by the person, firm, or corporation. The person, firm, or corporation shall be given notice of the hearing by registered mail or by personal service on the owner, manager, or other person having a financial interest in the material; provided, if there is no such person on the premises, then notice may be given by personal service on any employee of the person, firm, or corporation on such premises. The notice shall state the nature of the violation, the date, place, and time of the hearing, and the right to present and cross-examine witnesses.
      (3) The state or any defendant may appeal from a judgment. Such appeal shall not stay the judgment. Any defendant engaging in conduct prohibited by this Section subsequent to notice of the judgment, finding the material to be obscene, shall be subject to criminal prosecution notwithstanding the appeal from the judgment.
      (4) No determination by the district court pursuant to this Section shall be of any force and effect outside the judicial district in which made and no such determination shall be res judicata in any proceeding in any other judicial district. In addition, evidence of any hearing held pursuant to this Section shall not be competent or admissible in any criminal action for the violation of any other Section of this Title; provided, however, that in any criminal action, charging the violation of any other Section of this Title, against any person, firm, or corporation that was a defendant in such hearing, involving the same material declared to be obscene under the provisions of this Section, then evidence of such hearing shall be competent and admissible as bearing on the issue of scienter only.

      . Petition filed in court May 19, 1980. Intervention filed in court May 21, 1980.

      . C.C.P. art. 1031, et seq.; 1091, et seq.

      . For comparison, it should be noted that the federal case of Penthouse International, Ltd. v. McAuliffe (also titled Playboy Publications, Inc. v. McAuliffe), 610 F.2d 1354 (C.A. 5th Cir. 1980), is a civil case in which a number of publishers sued to enjoin action by a county solicitor general in Georgia. The plaintiffs complained that the actions of this prosecutor constituted impermissible prior restraint of their magazines and so violated the First, Fifth and Fourteenth Amendments of the U. S. Constitution. Plaintiffs sought injunctive relief against the prosecutor’s actions (which consisted of such acts as arrests of distributors) which had the effect of causing significant economic loss to the publishers, who were affected even though they were not subject to the criminal prosecutions in the State of Georgia. Plaintiffs also sought declaratory relief as to the issue of obscenity of the publications in question. The Fifth Circuit overruled the decision of the district court as to the obscenity of the magazines, holding that two of the three in question were obscene. However, the court of appeal did uphold the court below and find that there was unconstitutional and impermissible prior restraint in the conduct of the solicitor general, and the district court’s granting of injunctive relief was affirmed.

      . Note that the question of whether a particular thing is found to be obscene is a question of law. State v. Luck, supra, at 230; see also William B. Lockhart and Robert C. McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 116 (1960).

      . R.S. 13:3201, et seq.

      . This test is derived from Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Ronnie BAZILE.
    No. 66661.
    Supreme Court of Louisiana.
    July 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Robert Brinkman, Asst. Dist. Atty., for plaintiff-appellee.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for defendant-appellant.
   CALOGERO, Justice.

Defendant Ronnie Bazile was charged by bill of information with armed robbery. After a jury found him guilty as charged, the trial court sentenced him to fifteen years at hard labor. Defendant now appeals his conviction and sentence relying on four assignments of error.

Around midnight on September 23, 1976 two black males, one tall, one short, walked into the Canal Service Station in Krotz Springs and told the attendant they had run out of gas. When the attendant told them that he had no container in which to put gas, the men walked to a nearby restaurant where they obtained a container. When they returned to the station, the shorter man went into the station office while the other stayed outside with the attendant. In the office the shorter man placed a gun to the attendant’s girlfriend’s head and demanded that she open the cash register. The taller man joined the other in the office; together they emptied the register, then fled. After obtaining a description of the perpetrators of the armed robbery from the victims and employees of the nearby restaurant and having been told by a patron of the restaurant that he had nearly been run off the road by a 1969 Cougar with Colorado license plates heading east on highway 190, an officer began chase in that direction. The officer, after crossing into Point Coupee Parish, finally overtook the vehicle. Defendant and the other man in the car were then arrested.

ASSIGNMENT OF ERROR NO. 1

By this assignment defendant contends that the procedure employed by the trial court in selecting the jury panel violated Code of Criminal Procedure Article 784 in that the panel was not selected “indiscriminately” and that it unfairly allowed the state the advantage of excluding certain individuals from the jury.

The procedure employed by the trial court to select the jury panel was as follows: The names of the prospective jurors were drawn by lot in open court and placed into panels of twelve, the panels being designated as Panel 1, Panel 2, Panel 3, etc. until all of the names in the petit jury venire were exhausted. The twelve jurors selected for Panel 1 were sworn on voir dire. After the state and the defense exercised challenges to exclude jurors from Panel 1 (in fact six of that first twelve were challenged), the remaining jurors (six) were sworn in. Thereafter the twelve jurors from Panel 2 were sworn on voir dire and questioned. Thereupon the first six of these twelve jurors in Panel 2 were designated as the group to which peremptory and other challenges were invited. Four of these six were challenged peremptorily; two were accepted and were sworn. The next four jurors in Panel 2 were then designated as a group to which challenges were invited (there being only four unfilled places on the jury at that time). The process continued through Panel 3 until twelve jurors were selected.

After the twelve jurors had been selected and sworn, the defense before opening arguments on the following day objected to the procedure and requested that the jury panel be stricken. Because it was evident in advance which specific jurors in the successive panels would be considered next, as and when jurors were challenged, defendant contends that the state was able to exercise its challenges with the advantage of knowing in advance which jurors would next substitute for challenged jurors.

Article 784 of the Code of Criminal Procedure provides that in selecting a jury panel, “names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court.” Other than the selection being indiscriminate and by lot in open court, the procedure of selection from the petit jury venire is expressly left to the discretion of the district court. See State v. Hegwood, 345 So.2d 1179 (La.1977). Because the trial court selected the names indiscriminately and by lot in open court, the procedure did not violate the express provisions of Article 784.

The issue of whether the procedure, even if not in violation of Article 784, gave the state an unfair advantage (contra due process?) in its selection of the jury need not to be reached in this case, for defense counsel failed to object timely to this procedure. Defendant’s objection came after the jury had been selected and sworn, just before opening arguments. Article 841 provides that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. . . ” Therefore, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

At a hearing on a motion to suppress defendant called the arresting officer, Michael O’Pry, who testified that he arrested defendant in Point Coupee Parish early on September 24, 1976. He testified that the arrest was made without a warrant and that he searched defendant’s car after defendant signed a search and seizure form giving him permission to do so. On cross-examination, Officer O’Pry testified that no force, threats, promises, or intimidation were used to persuade defendant to sign the form. At this point defense counsel closed his case and the state informed the court that it did not intend to introduce any evidence.

In argument defense counsel contended that because there was no probable cause to stop and arrest defendant, the search of the vehicle, even with the defendant’s consent, was illegal. After the court began questioning the prosecutor on the issue of probable cause to arrest and the state refused to concede that defendant was arrested without probable cause, the court granted the state leave to introduce evidence on the issue. Thus Officer O’Pry was called back over the defendant’s objection, reopening the evidence, to testify on the state’s behalf on the issue of probable cause.

Defendant argues that the trial court erred in allowing the state to introduce evidence after argument on the motion had begun. Defendant contends that the state had sufficient opportunity to question the officer when he was initially on the stand and that allowing the state to recall him to answer a direct inquiry of the trial court gave the state an unfair advantage.

In State v. Landry, 339 So.2d 8 (La.1976) this Court held that the trial judge erred in granting the state a rehearing to produce further evidence after the defendant’s motion to suppress had been sustained. The Court found that because there was no provision in the Code of Criminal Procedure for a rehearing of a motion once the trial court had ruled, allowing the state to produce further evidence was error.

In the present case the trial court did not rule on the motion before allowing the state to introduce further evidence on the issue of probable cause. In fact the trial court specifically stated that it was not deciding the case before allowing the state to introduce further evidence. The trial court ruled on defendant’s motion only after the state introduced the evidence of probable cause to arrest. Therefore the holding in Landry is not controlling here.

We do not find that the trial court’s allowing the state to introduce evidence on the issue of probable cause was error. The state initially relied upon the consent of the defendant to uphold the validity of the search. It was only after the defendant raised the issue of whether there was probable cause to arrest in oral argument that the court’s attention was focused on the arrest. Because the trial court had not ruled on the motion before allowing further evidence to rebut defendant’s contention in oral argument that there was no probable cause to arrest, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment defendant contends that the trial court erred in allowing hearsay evidence to establish probable cause to arrest and that the state’s reliance on the inadmissible hearsay led the court to err in denying the motion to suppress.

After the state was allowed to reopen its evidence on the issue of probable cause to arrest, Officer O’Pry was recalled to the stand. He testified that several individuals had given him information describing the robbers. He further testified that he was given information that a vehicle with Colorado license plates was speeding without its headlights away from the vicinity of the robbery. Each time the officer related the information he had received from others, defendant objected to the testimony on the basis that it was inadmissible hearsay.

Hearsay evidence is testimony in court, or written evidence, of an out-of-court statement offered to show the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court asserter. State v. Martin, 356 So.2d 1370 (La.1978); McCormick on Evidence, § 246 (2d ed.1972). The traditional exclusion of hearsay evidence is based upon considerations of unreliability and of potential unfairness to the accused to permit the introduction of out-of-court statements which cannot be tested by cross-examination of the out-of-court declarant. State v. Arbuthnot, 367 So.2d 296 (La.1979).

The testimony of Officer O’Pry is not hearsay because it was not offered for the truth of the matter asserted therein. The officer’s testimony was not introduced to show that the defendant fit the descriptions given by the out-of-court declarants. Rather it was presented to establish the basis for the officer’s arrest of defendant. The statements of the out-of-court witnesses to the crime whether true or not formed the basis for the officer to believe that an offense had been committed and that the defendant had committed the offense. Therefore this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

By this assignment defendant contends that the trial court erred in placing the burden of proof upon the defendant at the hearing on the motion to suppress. At the beginning of the hearing the trial court stated that the defendant had the burden on the motion to suppress: “Let’s see, on a motion to suppress defendant has the burden?” The state responded that under La. C.Cr.P. art. 703 the defendant does have the burden.

Under Article 703, the defendant does in fact have the burden on a motion to suppress. However, that article has been construed in light of United States Supreme Court decisions to mean that once the defendant makes the initial showing at a motion to suppress hearing that a warrantless search occurred, the burden shifts to the state to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Franklin, 353 So.2d 1315 (La.1978).

Although the court in the instant case may have initially stated that the burden was on the defendant at the hearing, the record reveals that the proceedings did not depart from the established rule that once a defendant shows that a warrantless search occurred, the state has the burden to show that the search was justified. At the hearing the defense established that the search was without a warrant. The state then in cross-examination established that the defendant consented to the search, introduced the consent form, and questioned Officer O’Pry as to whether the consent was obtained through force, threats, promises or inducements. Furthermore when the defendant in oral argument raised the issue of lack of probable cause to arrest, the state recalled Officer O’Pry to show that there was probable cause to arrest defendant.

Because the state satisfied its burden at the hearing on the motion to suppress, the assignment is without merit.

Decree

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

AFFIRMED.

      .Article 784 at the time of trial provided as follows:
      “In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court.”
      The article was amended by Acts 1977, No. 556, § 1 effective July 15, 1977, after the date of trial to provide a special rule for those district courts in which a jury pool is authorized by law.

      . The official revision comment to Article 784 notes that “[djetails such as whether the jurors should be called singly or by groups of two, three, etc. are left to the court’s discretion.”

      . It should be noted that defendant enjoyed whatever advantage the state did from this procedure for it too had advance knowledge of which jurors would next be considered.


author: CALOGERO, Justice,

text:
    In re Grand Jury Subpoena Issued to Kathleen Renee GRAHAM.
    No. 80-K-1586.
    Supreme Court of Louisiana.
    July 14, 1980.
   In re: Kathleen Renee Graham and James E. Franklin, Jr., applying for writs of certiorari, prohibition, mandamus and stay order, Parish of Caddo, No. 114,292.

Denied.

CALOGERO, Justice,

concurring.

In my opinion, implicit in our decision in Graham, is that the attorney, as agent for the minor witness, may discuss grand jury testimony with that witness, his client, as well as with the other persons enumerated in C.Cr.P. art. 434.


text:
    STATE of Louisiana v. Jeff E. TURNER.
    No. 67826.
    Supreme Court of Louisiana.
    July 23, 1980.
   In re: State of Louisiana through the District Attorney, Harry F. Connick, applying for reconsideration of granted writ of June 23, 1980.

Rehearing granted.


text:
    CLARCO PIPELINE COMPANY v. PARISH OF EAST BATON ROUGE, INC., et al.
    No. 67025.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Clareo Pipeline Company applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 383 So.2d 1296.

Dismissed. Moot.


text:
    Woody H. NICHOLS, Individually and as the Curator of the Interdict, Lynda Leona Nichols v. Reubin K. HODGES et al.
    No. 67391.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Reubin K. Hodges, Prine Bldg. Materials, Inc., and Louisiana Farm Bureau Mutual Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 385 So.2d 298.

Denied.


text:
    John G. THOMPSON and Faye M. Thompson v. Luis Leonard SICARD, Lurline McMillan Sicard and First of Georgia Underwrites Company.
    No. 67404.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re John G. Thompson and Faye M. Thompson applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 385 So.2d 334.

Denied.

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


text:
    Eula Marie GUIDRY v. Conrad SERIGNY d/b/a Leeville Seafood Restaurant and Lounge.
    No. 67396.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Eula Marie Guidry, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 385 So.2d 295.

Denied.


text:
    NATIONAL FOOD STORES OF LOUISIANA, INC. v. Leroy J. CHUSTZ.
    No. 67422.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Leroy Chustz, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of Pointe Coupee. 385 So.2d 374.

Denied.

WATSON, J., would grant the writ.


text:
    SOUTH CENTRAL BELL TELEPHONE CO. v. HARTFORD ACCIDENT AND INDEMNITY CO. et al.
    No. 67335.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Hartford Accident and Indemnity Co. et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 19th Judicial District Court. 385 So.2d 830.

Denied.


text:
    STATE of Louisiana In the Interest of Les MANCIL.
    No. 67446.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Randal Wayne Winstead, Les Man-cil, Charles Gilliland, Darryl Tate, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 385 So.2d 313.

Denied.


text:
    Dr. Victor H. TIENSUU v. The BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY AND A & M COLLEGE.
    No. 67443.
    Supreme Court of Louisiana.
    May 19, 1980.
   In re Dr. Victor H. Tiensuu, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, 19th Judicial District Court. Parish of East Baton Rouge. No. 13,183. 385 So.2d 322.

Writ denied.


author: LEMMON, J.,

text:
    Orelia HANZY v. Clarence SAM, Affiliated Foods, Inc., and United States Fidelity and Guaranty Company.
    No. 67481.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Orelia Hanzy, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne, 32nd Judicial District Court. 385 So.2d 355.

Denied.

LEMMON, J.,

would grant believing that relator may be entitled to damages for loss of earning capacity.


text:
    Clamie Guillory GOLMAN v. DIXIE INSURANCE COMPANY et al.
    No. 67455.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Clamie Guillory Golman, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, 19th Judicial District Court. Parish of East Baton Rouge. 385 So.2d 309.

Denied.


text:
    Pat BROWN, Jr. v. STATE of Louisiana, Through DEPARTMENT OF PUBLIC SAFETY, DIVISION OF LOUISIANA STATE POLICE.
    No. 67720.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re State of Louisiana, through Department of Public Safety, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 19th Judicial District Court. 385 So.2d 436.

Granted.


text:
    B. J. LUCAS v. W. E. “Conn” DEVILLE et al.
    No. 67024.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re W. E. “Conn" Deville, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lasalle. 385 So.2d 804.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Ivy BABIN v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al.
    No. 67727.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Ivy Babin, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 19th Judicial District Court. 385 So.2d 849.

Denied.


text:
    Horace WHITE v. DEPARTMENT OF HEALTH & HUMAN RESOURCES, Charity Hospital at New Orleans.
    No. 67669.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Horace White, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Orleans. 385 So.2d 400.

Denied.


text:
    Sylvia BLOUNT v. Eldon Roy BLOUNT, Sr.
    No. 67719.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Eldon Roy Blount, Sr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston. 385 So.2d 476.

Denied.

CALOGERO, J., would grant the writ.


text:
    Lizzie Roberson DOUGLAS v. Norris DOUGLAS.
    No. 67718.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Lizzie Roberson Douglas, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of West Baton Rouge, 18th Judicial District Court. 385 So.2d 402.

Denied.


text:
    Julianna COURTNEY, Individually and as Administratrix of the Estate of Shane Abel Courtney v. BASF WYANDOTTE CORPORATION et al.
    No. 67736.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Julianna Courtney, Individually and as Administratrix of the Estate of Shane Abel Courtney, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 19th Judicial District Court. 385 So.2d 391.

Denied.


text:
    B. J. LUCAS v. W. E. “Conn” DEVILLE et al.
    No. 67029.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Market Insurance Company, applying for writ of certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lasalle. 385 So.2d 804.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Clifton E. HAGOOD, Jr. et al. v. Kenneth E. PICKERING et al.
    No. 67770.
    Supreme Court of Louisiana.
    June 23, 1980.
   In re Clifton E. Hagood, Jr., et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 385 So.2d 405.

Granted. The applicant has been denied his right of appellate review. The case is remanded to the court of appeal to determine whether the ruling of the district judge (that the commissioner was not arbitrary in his denial) was correct.


text:
    Leola M. FACUNDUS v. STATE of Louisiana, DEPARTMENT OF HEALTH & HUMAN RESOURCES, et al.
    No. 67740.
    Supreme Court of Louisiana.
    June 23, 1980.
   In re Canal Indemnity Co., Levelle Four-tenberry and Michael W. Dufrene, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 385 So.2d 485.

Denied.


text:
    COLLECTOR OF REVENUE v. WELLS FARGO LEASING CORPORATION. COLLECTOR OF REVENUE v. WELLS FARGO TRANSPORT LEASING CORPORATION.
    No. 67762.
    Supreme Court of Louisiana.
    June 23, 1980.
   In re Shirley McNamara, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 385 So.2d 388.

Granted.


text:
    Francis M. BATES v. FOREMOST-McKESSON, INC.
    No. 67724.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Foremost-McKesson, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 385 So.2d 478.

Granted.


author: MARCUS, J.,

text:
    Walter R. CHEVALIER, Jr. v. Charles ROBINSON and Gus Davis.
    No. 80-C-1470.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Charles Robinson and Gus Davis, applying for remedial writs. Parish of Orleans. No. A-169.

Denied.

BLANCHE, J., would grant the writ.

MARCUS, J.,

would grant writ for reasons assigned in dissenting opinion by BLANCHE, J., in Claire v. Stassi, 379 So.2d 1056 (La. 1980).


text:
    CHEVRON CHEMICAL COMPANY v. CRESCENT RIVER PORT PILOTS ASSOCIATION et al.
    No. 80-C-1442.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Chevron Chemical Company, applying for remedial writs. Parish of Plaque-mines. No. 22-153.

Denied.


text:
    Michael LaFLEUR, Manuel Curry and Raymond Curry, Individually and on behalf of the class of all City of New Orleans Police Officers v. The CITY OF NEW ORLEANS.
    No. 80-C-1553.
    Supreme Court of Louisiana.
    July 10, 1980.
   In re Michael LaFleur et al., applying for emergency stay order. Parish of Orleans. No. 80-7728. Civil District Court.

Stay order denied.


text:
    STATE of Louisiana v. Rafael BERMUDEZ.
    No. 80-K-1573.
    Supreme Court of Louisiana.
    July 11, 1980.
   In re Rafael Bermudez, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. Nos. 80-0481, 1, 3, 4, 80-1404.

Denied.


text:
    ORLEANS PARISH SCHOOL BOARD v. BOARD OF SUPERVISORS OF ELECTIONS FOR the PARISH OF ORLEANS; Edwin Lombard, Clerk of the Criminal District Court for the Parish of Orleans; Antonio E. Papale, Registrar of Voters for the Parish of Orleans; Milton A. Stire, Civil Sheriff for the Parish of Orleans; Jerry M. Fowler, State Commission of Elections; State Board of Election Supervisors; James H. Brown, Secretary of State, and David C. Treen, Governor.
    No. 80-C-1521.
    Supreme Court of Louisiana.
    July 16, 1980.
   In re Board of Supervisors of Elections for the Parish of Orleans et al., applying for emergency stay pending appeal. Parish of Orleans, Civil District Court. No. 80-8857.

Stay order denied. In event of appeal, motion for expedited hearing will be considered.


text:
    STATE of Louisiana v. Solomon JONES.
    NO. 80-K-1629.
    Supreme Court of Louisiana.
    July 18, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for supervisory writs. Parish of Orleans. No. 271-006.

Denied.


text:
    STATE of Louisiana v. Burnell LAWSON.
    No. 80-K-1608.
    Supreme Court of Louisiana.
    July 18, 1980.
   In re Burnell Lawson, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Lafourche. Nos. 92638 and 92639.

Writ denied.


text:
    STATE of Louisiana v. Joseph MURPHY.
    No. 80-K-1627.
    Supreme Court of Louisiana.
    July 23, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of habeas corpus. Parish of Orleans. No. 273-320.

Ruling on motion to quash reversed. Matter remanded to the trial court for determination of whether defendant has satisfied his sentence and, if not, whether trial court agrees to the surrender. C.Cr.P. art. 272(2).


text:
    William S. WIEDORN, Jr. v. Ann Campbell Coco WIEDORN.
    No. 80-C-1649.
    Supreme Court of Louisiana.
    July 23, 1980.
   In re William S. Wiedorn, Jr., applying for supervisory writs and stay order. Parish of Orleans. Civil District Court. No. 77-10447.

On the showing made, denied.


text:
    STATE of Louisiana ex rel. Tyronne J. FORREST v. Harry F. CONNICK, District Attorney, Judge Frank Shea, Orleans Parish.
    No. 80-KH-1570.
    Supreme Court of Louisiana.
    July 23, 1980.
   In re Tyronne J. Forrest, applying for writ of habeas corpus. Parish of Orleans. No. 269-672.

Denied.


text:
    SOUTHERN NATURAL GAS COMPANY v. Mrs. Billie Jean Cummings POLAND et al.
    No. 80-C-1536.
    Supreme Court of Louisiana.
    July 23, 1980.
   In re Steven W. Sutton, Darlene Lee Sutton, Larry C. Sutton, Judith W. Sutton, Bill C. Sutton, and Barbara Matthews Sutton, applying for certiorari or writ of review, to the Court of Appeal, Second Circuit. Parish of Bienville. Nos. 14,219-14,-227.

Denied.


author: LABORDE, Judge.

text:
    Robert ISTRE, Plaintiff-Appellant, v. HUDSON ENGINEERING CORPORATION, Defendant-Appellee.
    No. 7519.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    As Corrected On Denial of Rehearing July 18, 1980.
    Baggett, McCall, Singleton, Ranier & Iey-oub, Richard P. Ieyoub, Lake Charles, for plaintiff-appellant.
    Onebane & Associates, Dennis L. Doise, Lafayette, for defendant-appellee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This is a workmen’s compensation suit. Plaintiff, Robert Istre, contends that he sustained permanent and total disability as a result of an injury which he sustained in the course of his employment with defendant, Hudson Engineering Corporation. Following a trial, the trial judge, finding that plaintiff failed to prove causal connection between the accident and any disability, rendered judgment rejecting plaintiff’s demand. The principal issue is whether plaintiff sustained his burden of proving a causal connection between the accident and his disability.

The facts are that plaintiff was employed by Hudson Engineering Corporation as a carpenter’s helper. On October 26, 1976, plaintiff was operating an air powered drill in an attempt to penetrate a piling. As plaintiff was drilling the bit came out of the piling and struck plaintiff’s leg below his left knee, causing a cut. After the incident, plaintiff was taken to Dr. Russell. The doctor cleansed the cut, bandaged it, and sent plaintiff back to work. Plaintiff testified that when he returned to work his knee began to hurt to such an extent that he clocked out early. Approximately a week after the accident, plaintiff, complaining of pain in his left knee, was examined by Dr. Savoy. Dr. Savoy referred plaintiff to Dr. William Akins, an orthopedist. After Dr. Akins informed plaintiff that he could not find any objective evidence of a knee injury, plaintiff sought treatment from Dr. George Schneider, an orthopedic surgeon.

Dr. Schneider examined plaintiff for the first time on January 24, 1977, approximately three months after the accident. Plaintiff related a history to Dr. Schneider that his left knee began hurting after a drill bit had struck his leg, causing him to fall and twist his left leg.

After examining plaintiff, Dr. Schneider felt that plaintiff’s pain was a result of an internal derangement in his left knee caused by a spraining injury. On March 18, 1977, Dr. Schneider performed a lateral menisectomy and a chondrectomy of the left knee cap. Plaintiff contends he is disabled as a result of his knee injury.

The burden of proof in compensation lawsuits was described by the Supreme Court in Prim v. City of Shreveport, 297 So.2d 421 (La.1974) as follows:

Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971); Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286 (1965); Hogan v. T. J. Moss Tie Co., 210 La. 362, 27 So.2d 131 (1946); White v. E. A. Caldwell Contractors, Inc., La.App., 276 So.2d 762 (1973); Richard v. Guillot, La.App., 271 So.2d 719 (1972); Nellon v. Harkins, La.App., 269 So.2d 542 (1972).

The standard of review which we must apply to questions of fact was stated by the Supreme Court in Canter v. Koehring Co., 283 So.2d 716 (La.1973) as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.”

“Manifest error” was explained by the court in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) as follows:

We said the appellate court should not disturb this factual finding in the absence of manifest error. . “Manifestly erroneous,” in its simplest terms, means “clearly wrong.” We, said, then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong.

We feel the trial judge was clearly wrong for the reasons we shall set out herein.

In discussing causal relation in Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977), the court noted the Prim decision, supra, but said:

. . Nevertheless, “it is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover. The complaint need show only by a preponderance of the evidence that somehow the employment caused the disability.” Malone Workmen’s Compensation Law, Section 252 at p. 300 (1951).

The trial judge in his written reasons for judgment did not believe that “claimant’s lifestyle in either his working activities or his recreation ever changed very much.” He cites Johnson v. Travelers Insurance Company, 284 So.2d 888 (La.1973) for the rule that great weight attaches to a sudden change from health and ablebodiness to disability immediately after the accident. We agree, but believe on reviewing Johnson and the associated cases, Matte v. Power Rig Drilling Company, Inc., 260 So.2d 19 (La.App. 3rd Cir. 1972), writ refused 261 La. 1048, 262 So.2d 37; Ardoin v. Houston Fire & Casualty Company, 235 So.2d 426 (La.App. 3rd Cir. 1970); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969), that plaintiff need not demonstrate a drastic change or complete reversal of his lifestyle to meet this requirement.

In Bertrand, supra, the court on rehearing stated that:

Before this accident the plaintiff, though suffering from a cardiac or cardiovascular disease, exhibited no disabling symptoms of the disease, and adequately met the extreme physical demands of his employment. He was working with medical approval and with his employer’s full knowledge of his existing dormant disease. He has established an accident and his inability to return to work. Medical opinion recognizes that an accident (exertion) caused some kind of injury, that the plaintiff is unable to return to work because of disability, and that the accident manifested the disability. We must therefore conclude that the accident has caused the termination of employment because of disability.

In Johnson, supra, the court cited Bertrand for the rule that:

In a case such as the present one, where there is proof of an accident and of a following disability without any intervening cause, it is presumed that the accident caused the disability.
The court in Johnson continued, stating: In the present case, the presumption applies. The evidence reflects that the plaintiff suffered no back pain prior to July 16,1970. It establishes that on July 16, 1970, the plaintiff was involved in a work-related accident. The pain, which the plaintiff experienced had its inception with the accident and continued to the time of the trial.

The court concluded that the causal relationship had been established. Thus we believe that it is not necessary that plaintiff show that his life has been drastically altered to relate the disability to the accident, but that he need only show that an accident occurred and that he is now disabled where he was not prior to the accident.

The trial judge found that plaintiff was working for Hudson Engineering Corporation as a carpenter’s helper and that an accident occurred on October 25, 1976. He found that, regardless of how it happened, plaintiff was struck by a drill. He also found that plaintiff had worked at various jobs beginning in October 1977.

The trial judge noted that plaintiff testified that his activities were not curtailed, but we disagree. Plaintiff clearly testified that his social activities and athletic participation were curtailed.

The trial judge reviewed the medical evidence and, in doing so, stated that the first orthopedic surgeon to see plaintiff could not explain plaintiff’s complaints by a physical abnormality. He also related that the plaintiff recalls the doctor telling him it was in his head. Our review of Dr. Akins’ deposition shows that while he had not found any objective indications of knee problems, he did say that the lateral meniscus is one of the hardest injuries to clinically detect and that sometimes the abnormality would show up later. Additionally, we believe the trial judge misinterpreted plaintiff’s testimony. His testimony was:

Q. Why did you stop seeing Dr. Akins?
A. Because in my opinion he was giving me the run around. More or less . When I went the last time he more or less insinuated there was nothing wrong. It was in my mind.

This is apparently the basis of the trial judge’s observation that plaintiff expressed resentment when told that Dr. Akins’ did not foresee any permanent disability. Dr. Akins’ deposition neither precludes the injury or disability nor contradicts plaintiff’s testimony that his disability resulted from the accident of October 25, 1976.

The trial judge in reviewing the deposition of Dr. Schneider, the treating physician, found that he was of the opinion that plaintiff could return to his occupation. The deposition of Dr. Schneider reveals that while he had released plaintiff to return to work without restriction in September 1977 he had restricted plaintiff’s work activities based on his most recent examination.

The judge faults plaintiff for failing to consult an orthopedist initially. Plaintiff, with a high school education, should not be faulted for seeking medical care from a general practitioner who referred him to an orthopedist. The trial judge also notes that plaintiff’s problems differ little from those he experienced 10 years earlier. We feel this is only natural since both problems relate to cartilage injuries.

The trial judge also remarks that Dr. Schneider’s removal of cartilage (lateral meniscus) contributes little to resolving causation. In our view that is not the case. Dr. Schneider’s removal of the meniscus supports plaintiff’s testimony of pain and swelling between the injury and the operation, a period in which Dr. Akins found no objective sign of derangement within the knee but admitted that it could be present and undetectable in the period in which he examined plaintiff.

The judge, as we discussed earlier, felt there had been no change in plaintiff’s lifestyle. Much import was placed on the circumstances of plaintiff’s leaving his employment at T & S Refinery. Simply put, plaintiff informed his supervisor he was leaving for financial reasons, but testified at trial that he left both because of financial reasons and because of his physical discomfort in performing his work. This is borne out by the change in his rate of pay at T & S Refinery ($4.25 per hour) and Western Company ($4.10 per hour) and the testimony of a fellow employee, David Du-hon.

Further import was placed on a supposed lack of change in plaintiff’s life before and after the accident. Plaintiff’s testimony of pain and disability is borne out by Dr. Schneider’s examinations and subsequent surgery. None of the witnesses offered by defendant contradicts plaintiff’s testimony of reduced social and athletic activities since each of them only saw plaintiff on a few occasions.

Plaintiff has testified to his pain and discomfort in performing several jobs held since the accident. He has also presented co-workers who testified that he experienced either pain, swelling or both on strenuous exertion. Several witnesses also testified that prior to his accident plaintiff had not had either pain, suffering or both in performing strenuous activities. Defendant was only able to present witnesses who saw plaintiff less frequently and from a distance to say that he did not show signs of pain or swelling or limp while he was at work. Defendant also produced witnesses who testified as to plaintiff’s social and physical activities. These witnesses could not positively testify as to plaintiff’s performance or disability, but they had seen him engage in activities which he admittedly performed but less frequently than before his accident.

Therefore, with respect for the trial judge’s decision, we must disagree with him as we feel he is clearly wrong.

Regarding the issue of disability, the trial judge suggests plaintiff is not disabled but pretermits ruling on that issue. Therefore we must address the issue.

Plaintiff’s treating physician, Dr. Schneider, stated in his deposition that he would restrict plaintiff’s job capability insofar as a job required climbing, squatting, and kneeling. Additionally, he assessed a 15% permanent disability of the left knee.

Dr. Meuleman assessed plaintiff’s disability at 20-25% and stated he would have difficulty in squatting for any length of time without experiencing substantial pain. Dr. Morin assessed plaintiff’s disability at 15% due to recent injury and 30% of the joint including the childhood injury and stated that plaintiff would experience pain on prolonged standing, kneeling, squatting, or walking on uneven surfaces.

The testimony at trial was that plaintiff’s occupation, carpenter’s helper, required considerable stooping, squatting, and kneeling. Plaintiff also experienced pain and was incapacitated by climbing and squatting at a later job. We find plaintiff is disabled from returning to his prior employment because to do so would cause him substantial pain and discomfort.

LSA-R.S. 23:1221 provides that where an employee is disabled but able to be gainfully employed, the amount of compensation will be 66% per cent of the difference in his wages at the time of injury and subsequent to the injury.

Plaintiff was paid the maximum statutory compensation until September 3, 1978 and a reduced rate from September 4, 1978 through November 9, 1978. The total compensation paid plaintiff was $9,591.70. We hold that plaintiff is entitled to receive $11,270.35 in compensation through the date of this decision (April 9,1980) and thereafter at the appropriate rate and period according to LSA-R.S. 23:1221(3).

Plaintiff prayed for attorney fees and penalties as provided in LSA-R.S. 23:1201.2. The statutory test is whether the discontinuance is “arbitrary, capricious or without probable cause.” Defendant’s claim adjuster had in its possession the reports of Dr. Schneider and Dr. Morin. These reports both indicated that plaintiff was disabled but conflicted as to whether he was able to return to work. Due to the conflict present in the medical reports, we will not hold the employer “arbitrary, capricious or without probable cause” in its termination of benefits.

DECREE

The judgment appealed from is reversed. Judgment is rendered for plaintiff against defendant for past due workmen’s compensation benefits in the sum of Three Thousand Fifty-Seven and 43/100 Dollars ($3,057.43) and for future benefits according to law for a maximum of 425 weeks. Costs are assessed to defendant-appellee.

REVERSED AND RENDERED.

The judgment as amended is made the final judgment of this court. Further, except as set forth above, the application for rehearing by appellee is denied.

      . Record, p. 271.

      . Record, page 313, 315.

      . Record, page 254, 256, 257;

      . Record, page 252, 253, 256.

      . Record, page 322.

      . Record, page 157, 158.

      . Record, page 328.

      . Record, page 327.

      . Record, page 331.

      . Record, page 380.

      . Record, page 418, 419, 458.

      . Record, page 340, 343.

      . Record, page 143.

      . Record, page 107, 108.

      . Record, page 107, 108.

      . Record, page 361, 366.

      . Record, page 380.

      . Record, page 410, 411.

      . We calculate plaintiffs benefits as follows based on the record and according to LSA-R.S. 23:1221(3):
      “Average weekly wage at Hudson: $234.00
      WEEKLY WAGES EARNED COMPENSATION DUE (WEEKLY1
      11/06/76-09/30/77 (47 weeks)-0-$95.00

      10/01/77-12/31/77 (13 weeks)-125.00 72.67
      01/17/78-07/31/78 (30 weeks)-90.00 95.00
      08/01/78-10/25/78 (13 weeks)-0-95.00
      10/26/78-11/15/78 (03 weeks)-196.20 25.20
      11/16/78-11/25/78 (02 weeks)-. 176.00 38.67

        WEEKLY WAGES EARNED COMPENSATION DUE tWEEKLY!
      11/26/78-12/10/78 (02 weeks)- 247.40 $ -0-
      12/11/78-12/25/78 (02 weeks)- 238.92 -0-
      12/26/78-01/10/79 (02 weeks)- 258.14 -0-
      01/11/79-01/25/79 (02 weeks)-195.49 25.67
      01/26/79-02/10/79 (02 weeks)-199.86 22.76
      02/11/79-02/25/79 (02 weeks)-124.94 72.71
      01/26/79-03/02/79 (01 week )-78.42 95.00
      03/03/79-03/10/79 (01 week )-  -0-
      03/11/79-03/17/79 (01 week )-186.63 31.58
      03/18/79-03/24/79 (01 week )- 329.61 -0-
      03/25/79-03/31/79 (01 week )- 244.57 -0-
      04/01/79-04/07/79 (01 week )- 399.36 -0-
      04/08/79-04/14/79 (01 week )-167.31 44.46
      04/15/79-04/21/79 (01 week )-311.85 -0-
      04/22/79-05/27/79 (01 week )-  -0-
      05/28/79-04/09/80 (24 weeks)-166.25 45.17
      (Every other week (24 weeks)-140.00 62.67
      The compensation due as of April 9, 1980 is Twelve Thousand Six Hundred and Forty-Nine and 13/100 ($12,649.13) Dollars. Hudson Engineering has paid Nine Thousand Five Hundred and Ninety-One and 70/100 ($9,591.70) in benefits so they owe Three Thousand Fifty-Seven and 43/100 ($3,057.43) Dollars.”

       Statutory maximum.

       The record indicates plaintiff earned sufficient weekly wages during this period so as not to be entitled to benefits.

      . Plaintiff was injured October 25, 1976.