author:
MARVIN, Justice Ad Hoc.
     LEMMON, Justice

text:
    STATE of Louisiana v. Clyde N. THOMPSON, Charles M. Hubbs and Colvin L. Wines.
    No. 80-K-2521.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied July 2, 1981.
    Dissenting Opinion July 21,1981.
    See 400 So.2d 1080.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay Larson, Louise S. Korns, and J. Kevin McNary, Asst. Dist. Attys., for relator-applicant.
    Richard B. Stricks and Bernard Bagert, of Bagert, Bagert & McDonald, New Orleans, for defendants-respondents.
   MARVIN, Justice Ad Hoc.

Writs were granted by this court to review the correctness of the trial court’s suppression of an alleged inculpatory statement made by the defendant Thompson to a police officer without Thompson being advised of the right to counsel afforded him by Art. 1, § 13, La.Constn. and by Miranda. We find the alleged statement was made in a non-custodial situation and reverse.

The issue concerns whether an inculpato-ry statement was made as a response to police interrogation while Thompson was in custody or was significantly detained. State v. Menne, 380 So.2d 14 (La.1980); Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

The record states Policeman Hughes’ summary of the conversation which took place in the presence of the victim, the three defendants, and two other police officers in the lobby of a small New Orleans motel, but does not recite details of the conversation. The defendants were Thompson, Wines, and Hubbs.

Officer Hughes testified:

“I was having ... coffee ... at ... [a] donut shop and was approached by the complainant [Schoen] who alleged he had been the victim of a battery committed upon him by several persons ... I returned with him to the parking lot of the [motel] ... where ... Wines was standing ... We discussed the altercation with him ... The course of the inquiry took us into the lobby ... and ... the elevator door opened and ... Thompson and ... Hubbs came out of the elevator. Wines ... came in with me and the victim or complainant was walking through the front door with [the other officers.] [Schoen identified Thompson as a perpetrator when the door opened.] I noted what appeared to be some blood spatters or spots on ... Thompson’s shirt. I asked him who he was, he identified himself to me, the' other subjects identified themselves, and I asked Thompson how he came by the blood spots on his shirt and apparently looking over my shoulder at the victim who entered the lobby he said an incident had occurred between them at another location as he was located in the parking lot and they assaulted him without any provocation.
“Who?
“Wines and Hubbs.
“Did he make any other statements to you?
“There was a general discussion at the time about who they all were.”

Apparently the trial court concluded that Hughes said that Thompson said “ ... an incident had occurred between them [Thompson, Wines, and Hubbs, on the one hand, and Schoen, on the other] ... and they [Wines and Hubbs] assaulted him [Schoen] without any provocation,” for it is only in this sense that the statement is inculpatory of any defendant. The quoted testimony obviously is subject to other reasonable interpretations.

Only Hughes and Schoen testified at the suppression hearing. Schoen testified that Officer Hughes first asked Thompson when Thompson stepped out of the elevator, “May I see you for a moment?” Schoen said that he did not hear all of the details of the Hughes-Thompson conversation and Schoen was not asked what else he heard.

Defendants were not arrested or physically detained during or after the conversation, but were given a summons to appear in municipal court apparently on the authority of CCrP 211. Defendants made no move or attempt to leave the motel lobby while the police officers were there. A bill of information was later filed against the defendants charging them with second degree battery, a felony, under LRS 14:34.1.

In Menne, this court held that our constitution, by providing in Art. 1, § 13, that a person who is detained in the connection with the investigation of any offense must be fully advised of his rights, requires “that investigating officers give the warnings anytime such a citizen is deprived of his liberty in a significant way or was not free to go as he pleases.” 380 So.2d at p. 17. Emphasis supplied.

The determination of whether the detention is significant is to be made objectively from the totality of the circumstances. Menne, supra. Factors relevant to the determination include (1) whether the police officer had reasonable cause under C.Cr.P. 213(3) to arrest the interrogee without a warrant; (2) the focus of the investigation on the interrogee; (3) the intent of the police officer, determined subjectively; and (4) the belief of the interrogee that he was being detained, determined objectively. Whether or not there is a custodial interrogation under federal terminology or a significant detention under Louisiana terminology must be determined on a case-by-case basis. State v. Ned, 326 So.2d 477, 479 (La.1976).

The conversation in the motel lobby was described as “brief” and was prefaced by the apparent request, “May I see you for a moment?” Officer Hughes testified that he did not consider the defendants were in a custodial situation but that they were “... not free [to leave] until he concluded the business [of the investigation].” In response to the hypothetical what-if question, Hughes speculated that “... had [defendants] said [they] were going to leave ... I would have reassessed what to do ... I believe I would have said you will have to be arrested, I have to take action.”

Hughes had alternative courses of action. Under CCrP 213(3) he had the discretionary authority to arrest Thompson without a warrant (may arrest with reasonable cause). Under CCrP 215.1 he had the discretionary authority to stop Thompson and ask him to explain his circumstances (actions) and to identify himself (may do this upon reasonable suspicion that that person has committed an offense). Hughes’ initial assessment of Schoen’s story caused Hughes not to choose to arrest under 213, but to inquire under 215.1(A):

“A law enforcement officer may stop any person in a public place whom he reasonably suspects ... has committed ... a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.” Emphasis supplied.

Hughes asked Thompson to identify himself and, in effect, to explain his apparent actions (the circumstance of apparent blood on Thompson’s shirt). After that inquiry, Hughes did not further interrogate Thompson, did not decide to arrest Thompson, but instead, to issue him a municipal court summons under CCrP 211, which may be issued when it is lawful to arrest without a warrant for a misdemeanor. It is apparent that Hughes determined to exercise and act upon probable cause to arrest without a warrant by issuing the summons after the conversation in the lobby.

This court observed in State v. Weeks, 345 So.2d 26, 28 (1977) that

“ . .. Miranda warnings are not a prerequisite to the admissibility of statements taken by officers during non-custodial, general, on-the-scene investigations, conducted to determine the facts and circumstances surrounding a possible crime, absent a showing that the investigation has passed the investigatory stage and has focused on the accused. See also State v. Anderson, 332 So.2d 452 (La.1976); State v. Ned, 326 So.2d 477 (La.1976); State v. Roach, 322 So.2d 222 (La.1975).”

Similarly, this court has held that a general investigatory and pre-custodial inquiry at the home of a defendant does not require Miranda warnings. State v. Hodges, 349 So.2d 250, 257 (La.1977). In Anderson, supra, a deputy sheriff had been told of Anderson’s involvement in a homicide at Soileau’s Grocery. The deputy knew Anderson and went from the grocery to Anderson’s home where he advised Anderson only of his right to remain silent. The Deputy then asked, “What happened at Soi-leau’s place?” Anderson’s answer, that he had intended to shoot Williams and had not intended to shoot the female victim, was held admissible as a non-custodial response.

A motel is more analogous to one’s home than is a courthouse or police station. Compare State v. Ned, supra. In this instance, the parking lot of the motel was the scene of the alleged battery. Hughes’ inquiry (who are you, how did you get blood on your shirt?) was interrogative but was not reasonably likely to elicit an incriminating response, if indeed Thompson’s response, as summarized by Officer Hughes in the quote above, is considered incriminating. Innis, supra, 100 S.Ct. at p. 1689. Sometimes what appears to be blood turns out to be another substance. It is also not unlikely that a person suspected of a battery, who himself is somewhat bloody, will explain that he is the victim of another’s battery, a good Samaritan, or perhaps has been accidentally bloodied.

“ ... [A] non-custodial situation is not converted to one in which Miranda applies simply because a ... court concludes that, even in the absence of any ... restraint on freedom of movement, the questioning took place in a ‘coercive environment.’ Any interview of a person suspected of a crime will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned suspect is the one whom the police suspect. Miranda warnings are required only when there has been such a restriction of a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977). On the other hand, the U.S. Supreme Court has said that the Miranda principle should apply to questioning that takes place in a suspect’s home after he has been arrested and is no longer free to go where he pleases. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).

In State v. Collins, 370 So.2d 533 (La.1979), the police learned that Collins, while wearing pink pants and a flowered shirt, had departed a grocery store with a 13-year-old girl who was later determined to have been the victim of a sexual assault and homicide. When police found Collins at a neighbor’s home and noticed he was dressed in different colored clothing, they asked him if he had worn different clothing earlier in the day. When Collins replied that he had worn different clothing earlier that day, the police immediately gave him the required Miranda warnings and later arrested him after finding the pink pants and the flowered shirt in the home. This court, observing that the question whether the officers began custodial interrogation before the initial Miranda warnings was a “close one,” stated:

“The defendant was standing outside his friend’s house ... He was not threatened with any physical restraint. The officers’ preliminary questions as to his previous whereabouts and apparel did not necessarily indicate that defendant was under suspicion or that he would be prevented from leaving .. . Under the circumstances, the officers were entitled to learn if in fact the defendant was the person in pink flowered apparel who was at the store at the time in question ... When the defendant confirmed that he was present during the time ... but gave information controverting that of other witnesses as to the description of his clothing, the officers immediately advised him of his constitutional rights ... Accordingly, defendant was not subjected to custodial interrogation without being informed of his constitutional rights.” 370 So.2d at p. 538. See also annotation, “Custodial Interrogation — Miranda Rule, 31 A.L.R.3d 565.

Whether a person has been significantly detained so as to mandate the advice of rights is a question which must be judicially determined, objectively and in retrospect, in the light of all of the circumstances of the particular case (Menne, Ned, supra). No one factor, such as time, place, type of question, police intent, suspect belief, focus of investigation, probable cause to arrest without a warrant, will solely control every determination. The strength of cause for arrest will vary with the magnitude of the intrusion and with the alternatives available to the policeman. State v. Billiot, 370 So.2d 539, 543 (La.1979). Similarly the legal character of the detention varies with the alternatives available to the policeman and with the restraint actually imposed by either or both the policeman’s words or actions. See C.Cr.P. 201.

If Hughes had reasonable cause to arrest Thompson without a warrant, Hughes chose not to exercise this discretionary authority under CCrP 213. If Hughes had reasonable cause under CCrP 213, he also had the lesser “reasonable suspicion” under CCrP 215.1 to stop Thompson in a public place and demand that Thompson explain how he had the apparent blood on his shirt. This stop and demand or inquiry was prefaced by a request (May I see you for a moment?) and was generally an investigatory inquiry under CCrP 215.1. Even if this stop is a detention under Art. 1, § 13 of the Constitution, it was not an inquiry reasonably likely to elicit an incriminating response.

Under these circumstances, we hold that the stop or detention was not a significant detention mandating the constitutional advice. The circumstances do not indicate that Thompson was deprived of his freedom or was detained in any significant way. Menne, supra at p. 15.

The rules governing admissibility of confessions apply as well to the admissibility of inculpatory statements. State v. McGraw, 366 So.2d 1278 (La.1978). This court has observed that the question of admissibility in such cases is, in the first instance, a question for the trial judge whose conclusions on credibility and weight of testimony pertaining to voluntariness will not be overturned unless they are not supported by evidence. State v. Matthews, 354 So.2d 552 (La.1978). In this instance we have no credibility issues where only Officer Hughes and the alleged victim offered testimony and the trial judge based his ruling solely upon the legal effect of the circumstances which were revealed by the testimony. In such cases this court must exercise its responsibility and make the ultimate determination that the statement or confession is or is not legally admissible. See State v. Payne, 338 So.2d 682 (La.1976); State v. Peters, 315 So.2d 678 (La.1975).

Under C.Cr.P. 703 D, the State has the burden of proving the admissibility of a purported confession or statement by the defendant, and particularly that the confession or statement was made freely and voluntarily. This burden exists on the hearing of a motion to suppress. State v. Johnson, 327 So.2d 388 (La.1976). The record supports the conclusion that the State has met its burden in this respect, and Thompson does not contend otherwise.

MOTION TO DISMISS

Defendants have filed in this court a motion to dismiss this prosecution on the grounds that LRS 14:34.1 is unconstitutionally vague and overbroad and that there is not sufficient evidence of “protracted and obvious disfigurement” or of “protracted loss or impairment of a bodily function". The contention that there is not sufficient evidence of an element of the crime is premature. No evidence has been adduced, no trial has been had, and no verdict has been rendered. Analogizing this motion for dismissal to a motion to quash, we conclude that questions of factual guilt or innocence of the offense charged are not properly raised by such a pre-trial motion. See State v. Atkins, 360 So.2d 1341 (La.1978) and State v. Marcal, 388 So.2d 656 (La.1980). The merit (or lack of) the State’s case is not a proper basis for a motion to quash. Marcal, supra. This basis for dismissal is without merit.

Defendants argue that L.R.S. 14:34.1 is unconstitutional because it allows a victim’s subjective perception of “extreme physical pain” to be determinative of a crime. They further argue that the failure of the statute to define “extreme physical pain” improperly vests the jury with a legislative function. A statute is unconstitutionally vague if men of common intelligence must guess as to its meaning. See State v. Cannon, 383 So.2d 389 (La.1980). The phrase “extreme physical pain” describes a condition which most people of common intelligence can understand. The fact that the term is subjective in nature and susceptible to interpretation does not mean that it is violative of due process or will not necessarily be applied constitutionally. This phrase gives adequate warning of the conduct proscribed and provides a workable standard for judges and juries to fairly administer the law. See Cannon, supra; Boyce Motor Lines, Inc. v. United States, 432 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952); State v. McCoy, 395 So.2d 319 (La.1980).

CONCLUSION

Defendants’ motion to dismiss is denied. The sustaining of the motion to suppress is overruled and the case is remanded for further proceedings.

LEMMON, Justice

concurring in denial of rehearing and assigning reasons.

On application for rehearing defendant persuasively argues that since the officer’s question as to how the blood got on defendant Thompson’s shirt was reasonably likely to elicit an incriminating response, the Innis rationale is not applicable. Nevertheless, the overall circumstances do not establish the type of custodial setting to which Miranda was intended to apply. The . setting in this case cannot reasonably be viewed as coercing defendant into making an involuntary statement which was not likely to be reliable.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones, of the Court of Appeal, Second Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lemmon.

      . The State answered defendants’ motion for discovery [of statements made by defendants] that
      “The defendant Thompson stated that he and Wines and Hubbs beat the victim, although unprovoked because Thompson saw the victim with his girlfriend. This statement was made on August 1, 1980, at approximately 3:00 a. m. in the 3600 block of St. Charles Avenue to Police Lt. John Hughes and Police Lt. C. Bankston. The defendant Hubbs stated that he just tried to separate Thompson and the victim during the altercation. The defendant Wines had no comment.”

      . Any inquiry or remark made by the police to a person after he is in custody will be deemed the equivalent of custodial interrogation where it is shown that the police inquiry or remark is reasonably likely to elicit an incriminating response. Innis, supra.


source: Caselaw Access Project

author: JASPER E. JONES, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. Franklin Edward DAVIS
    No. 80-KA-2489.
    Supreme Court of Louisiana.
    May 18, 1981.
    On Joint Motion for Rehearing/Clarification June 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Sturgeon, Dist. Atty., Glenn B. Gremillion, Asst. Dist. Atty., for plaintiff-appellee.
    Jerry B. Daye, Ferriday, for defendant-appellant.
   JASPER E. JONES, Justice Ad Hoc.

Defendant, Franklin Edward Davis, was charged by Grand Jury indictment on August 17, 1978, with the crime of second degree murder of Norah Wright, a/k/a as Norah Rice, in violation of LSA-R.S. 14:30.-1. On March 8, 1979 defendant was convicted by a jury of twelve. On March 20, 1979 defendant was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence for forty years.

The state adduced the following facts at trial:

In the early morning hours of July 30, 1978 defendant entered Rice’s Grocery and Bar in Clayton, Louisiana. Shortly after his arrival defendant became involved in a heated argument with Norah Rice, owner of the establishment. The brief confrontation was witnessed by most of the ten or twelve customers who were in the establishment. Defendant left the establishment immediately after the argument and some of the customers heard him say he would be back. As defendant left the area outside the bar one witness heard him say that he would return with his “shit”. (This witness said this word was a local expression for gun.). About twenty minutes after the defendant left, the customers heard a gunshot and saw Norah Rice slumped over bleeding from the head. He died later that day from a bullet wound to the brain. There was one witness who testified he saw defendant in the area not far from where the shot was fired about two or three minutes before he heard the gunshot. This witness stated that defendant did not have a gun. Defendant testified he went home immediately upon leaving the bar and went to bed. He denied he returned to the bar and shot the victim. The police were called and upon their arrival at the scene interviewed the witnesses and learned of the earlier altercation between the victim and the defendant. The officers determined that the shot which struck the victim had been fired from outside the building through a window.

The officers proceeded to defendant’s house which was a short distance from the bar and arrested defendant. Defendant was asleep upon a couch in one room of his two-room house at the time of his arrest. Zane Ellis who lived in the house with defendant was asleep on another couch in the same room with defendant at the time the arrest was made. Simultaneous with the arrest the officers seized a .22 rifle which was lying on a bed in the room adjoining the one in which defendant was sleeping. The rifle belonged to Zane Ellis.

Defendant, on appeal, relies on five of his nine assignments of error for reversal of his conviction and sentence. He abandoned four of his five assignments of error in brief. Because we find an error complained of in Exception # 9 requires reversal, we pretermit consideration of the other errors complained of.

On November 1, 1978 defendant filed a “Motion For Bill of Particulars” wherein he “moved to require the State of Louisiana” to disclose to him a description of “all documentation or other exhibits” which it was to use in evidence “for his examination and use.”

The answer to the Motion for Bill of Particulars dated November 22,1978 stated that the state had a diagram of the scene of the crime, a .22 rifle, alleged to be the murder weapon, and clip, a .22 caliber bullet removed from the head of the victim, a statement taken from the defendant, and his rap sheet.

During the trial of defendant on March 7, 1979 the state called Bob Bruce as its last witness before resting its case in chief. This witness was the fingerprint expert for Concordia Parish Sheriff’s Department. He testified that sometime during the day of the early morning shooting he examined the .22 rifle which was seized in defendant’s home for the purpose of determining if there were any fingerprints on it. He stated there were no prints found on any part of the rifle except on the removable bullet clip. He photographed a palm print found on the clip. The expei't obtained a palm print from defendant’s hand which he also photographed. He compared the print found on the clip with the print taken from defendant’s hand and concluded defendant had placed the print on the-bullet clip. The expert testified the palm print had been on the clip no longer than 24 hours. The defendant objected to the fingerprint exhibits and testimony relating to them for the reason the state failed to disclose these exhibits which had been in the possession of the state since July 30, 1978, in its answer to the Bill of Particulars filed November 22, 1978.

The trial court stated the evidence was not prejudicial to defendant and overruled the objection.

The following provisions of our criminal procedure discovery statute authorized the defendant to obtain from the state the fingerprint exhibits:

LSA-C.Cr.P. art. 718 — “Subject to the limitation of Article 723, on motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies of portions thereof, which are within the possession, custody, or control of the state, and which:
(1) are favorable to the defendant and which are material and relevant to the issue of guilt or punishment, or
(2) are intended for use by the state as evidence at the trial, or
(3) were obtained from or belong to the defendant.
The court may determine whether evidence is subject to the provisions of Paragraph (1) hereof by in camera inspection.” LSA-C.Cr.P. art. 719 — “Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. Exculpatory evidence shall be produced under this article even though it is not intended for use at trial.”

We construe defendant’s Motion for a Bill of Particulars as a motion for discovery contemplated by the cited Articles as it requests the identification of the exhibits which are in possession of the state intended to be used by the state as evidence and requests that these exhibits be furnished to him for his examination and use.

The state failed to comply with the disclosure requirements of the cited discovery provisions because it failed to disclose to defendant that it had fingerprint exhibits which it intended to use as evidence at trial and failed to make these exhibits available for his examination and reproduction.

The quoted criminal discovery provisions were enacted by the legislature in 1977. In State v. Pool, 361 So.2d 1202 (La.1978), this court construed the state’s failure to comply with the discovery provisions contained in the 1977 legislation as analogous to the state’s giving inaccurate or misleading answers in response to a motion for a bill of particulars.

If a defendant is misled by an answer to a bill of particulars relative to the state’s possession of an oral inculpatory statement and is lulled into a misapprehension of the strength of the state’s case and suffers prejudices when the statements are subsequently introduced at trial, basic unfairness results which constitutes reversible error. State v. Boothe, 310 So.2d 826 (La.1975); State v. Jenkins, 340 So.2d 157 (La.1976); State v. Sharp, 338 So.2d 654 (La.1976); State v. Hatter, 350 So.2d 149 (La.1977); State v. Pool, supra.

In Pool, supra, the court found that the state’s failure to disclose fingerprint tests which were later proved at trial was not reversible error because the defendant suffered no prejudice. Pool was convicted of receiving a stolen automobile and his fingerprints taken from the car were not disclosed by the state. Defendant was arrested driving the stolen car by three officers. The eyewitness testimony of these officers conclusively placed defendant in the stolen car, and the evidence that defendant’s fingerprints were found in the car added nothing to the state’s case.

Here the state failed to comply with the disclosure requirements of the quoted discovery provisions and if defendant has been prejudiced by the state’s failure to disclose he is entitled to a reversal. State v. Meshell, 392 So.2d 433 (La.1980).

The state’s case against defendant is based entirely upon circumstantial evidence. Defendant denies he shot the victim. He denied in a statement taken on the day of the shooting which was admitted into evidence that he had ever handled or shot the gun which was seized at the time of the arrest. The state established that the bullet which was removed from the victim’s head was fired from a .22 rifle that was constructed in the same manner as the seized gun, and that this rifle was a relatively uncommon gun. Joe Summerville, a state’s witness, testified that the gun was fired in target practice at the home of defendant and Zane Ellis on the afternoon before the killing, by Zane Ellis, to whom the gun belonged, and three of his friends. Defendant was not present when the gun was fired. Summerville testified at the conclusion of the target practice Zane Ellis laid the gun upon the bed in his house. This bed where Ellis put the gun may have been the same bed from which it was taken at the time it was seized. Summerville was at Norah Rice’s establishment the morning of the killing and left the place between the time that defendant left and the shooting occurred.

The non-disclosed fingerprint evidence which tended to establish that defendant had handled the clip of the alleged murder weapon within 24 hours of the lifting of the print from the clip, was an important link in the state’s circumstantial evidence case against the defendant. No other prints were found on the gun and the inference which the jury may well have found from this evidence is that defendant left the print on the clip when he put the cartridge into it with which he shot the victim. This fingerprint evidence was the only evidence that directly linked Zane Ellis’s rifle to the defendant who at trial reiterated his earlier statement to the sheriff’s deputy that he had never fired the gun and admitted only having picked up the gun at a time remote from the date of the murder for the purpose of placing it on a gun rack.

Defendant contends that had the state disclosed the fingerprint exhibits to him he would have secured his own fingerprint expert to examine and evaluate the prints.

In the case of Barnard v. Henderson, 514 F.2d 744 (1975), a decision of this court affirming a trial ruling which denied a defendant’s request to have an alleged murder weapon examined by an expert of his selection was reversed. The case involved a murder case based upon circumstantial evidence where the state had produced expert testimony that the murder bullet had been fired from a pistol traced to defendant’s possession. Defendant desired to have his expert examine the gun and the bullet. The court there recognized that if defendant had been given the opportunity to secure his own expert “he may have been able to shake the identification testimony (i. e., identifying the bullet with the gun) of the state’s experts.” This court quoted with approval retired Associate Justice Barham’s dissent in Barnard, supra:

“.. the only means by which the defendant can defend against expert testimony by the State is to offer expert testimony of his own.” Id. at 746.

The court stated:

“Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.” Id. at 746.

If defendant here had secured a fingerprint expert he may have acquired evidence with which he could have refuted or weakened the state’s damaging fingerprint evidence. At the very least such an expert could have advised defendant that the fingerprint evidence was conclusive proof that defendant had handled the gun within 24 hours of the killing.

In the case of State v. Meshell, supra, this court held that the state’s failure to disclose its possession of the defendant’s rap sheet in response to defendant’s discovery motion in compliance with the provisions of LSA-C. Cr.P. art. 717, was reversible error because defendant was prejudiced by the nondisclosure. The state did not furnish defendant with a copy of his rap sheet until the state rested its case. The court stated defendant was denied the right to prepare his defense based upon an expectation that the state would produce the rap sheet at trial. The court further found the non-disclosure denied defendant an opportunity to evaluate his prosecution in light of possession of the rap sheet by the state.

“If the state had furnished defense counsel with a copy of defendant’s rap sheet prior to trial, counsel might have attempted to negotiate a plea bargain by pleading his client guilty.” Id. at 435.

Defendant here was denied the opportunity to examine the expert’s fingerprint evidence which is authorized by LSA-C. Cr.P. arts. 718 and 719 because the existence of the evidence was never disclosed to him. Defendant did not have an opportunity to prepare a defense to the state’s fingerprint evidence. Even if defendant had not secured the expert which he now says he would have secured if he had known of the fingerprint exhibits, had the disclosure been properly made he could have evaluated the strength of the state's case in light of the damaging fingerprint evidence and perhaps entered into a plea bargain which could have resulted in a sentence substantially less severe than the one he received as result of his conviction of second degree murder.

We conclude that defendant was prejudiced by the state’s violation of the discovery statute. Accordingly, the defendant’s conviction and sentence are reversed and set aside and the case is remanded to the district court for further proceedings in accordance with law.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones of the Court of Appeal, Second Circuit participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, and Harry T. Lemmon.

      . LSA-C.Cr.P. art. 716(B) — .
      Upon motion of the defendant, the court shall order the district attorney to inform the defendant of the existence, but not the contents, of any oral confession or statement of any nature, made by the defendant, which the district attorney intends to offer in evidence at the trial, with the information as to when, where and to whom such oral confession or statement was made.”

      . St. v. Barnard, 287 So.2d 770 (La.1973). This case was decided prior the 1977 legislation providing our present broad criminal discovery rules.


author: PER CURIAM. LEMMON, Justice,

text:
    STATE of Louisiana v. Rodney R. LOTT.
    No. 80-KA-2745.
    Supreme Court of Louisiana.
    May 29, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Sonia D. Peters, Asst. Dist. Atty., for plaintiff-appellee.
    Howard M. Fish, Shreveport, Indigent Defender Office, for defendant-appellant.
   PER CURIAM.

Defendant was initially charged in a single bill of information with four counts alleging the distribution of controlled substances in violation of La.R.S. 40:967. Three of the four counts involved the sale to undercover agents of a total of five preludin tablets; the fourth, sale of a small quantity of marijuana, again to one of the agents. In response to a defense motion to sever, the state dismissed the original bill and filed two new informations containing two counts each. On June 16,1980, defendant withdrew his former pleas of not guilty and pleaded guilty as charged to count one in each information, the first and third counts of the original bill charging sales of the preludin tablets. In return for the plea, the state then dismissed both second counts. On September 25, 1980, the day of sentencing, the trial court denied counsel’s motion for the appointment of a sanity commission in order to determine defendant’s competency to proceed. La.C.Cr.P. Article 641. It then sentenced defendant to five years’ imprisonment at hard labor on one of the counts, and two years at hard labor on the second, the sentences to run concurrently. Defendant has now appealed his conviction and sentence to this Court, urging two assignments of error. He argues that the trial court erroneously denied the motion for the sanity commission, and erred further in imposing excessive sentences.

We have reviewed the record of the sentencing hearing and find no abuse of discretion by the trial court in ruling on the request for a mental examination of defendant. Cf., State v. Clark, 367 So.2d 311 (La.1979). To this extent, the trial court did not err in proceeding to sentence defendant on September 25. We note, however, that at the hearing, the trial court imposed five years at hard labor “on count one relative to distribution of Preludin, and two years at hard labor on count two, distribution of marijuana....” [emphasis supplied]. The marijuana charge had, in fact, been dismissed by the state when defendant entered his guilty pleas. The trial court repeated the mistake when it filed its written reasons for sentence into the record.

We are unable to determine whether the trial court simply misstated the charge when it imposed sentence, or misunderstood the nature of the defendant’s guilty pleas. Distribution of preludin and distribution of marijuana carry the same penalties under La.R.S. 40:967(B)(2). Nevertheless, we cannot say that the error, if made, could have had no impact on the trial court’s sentencing determination for either count, or its articulation of sentencing reasons under La. C.Cr.P. Article 894.1. We are therefore unable to review defendant’s claim of exces-siveness on the present record. Accordingly, we affirm defendant’s convictions, but vacate the sentences imposed and remand the case for resentencing on both counts. The trial court is again to state for the record, in light of the correction noted here, its reasons for sentence, and the factual basis therefor, as required by La.C.Cr.P. Article 894.1. We reserve to defendant the right to appeal from that new sentencing determination.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND CASE REMANDED FOR RESENTENCING.

LEMMON, Justice,

concurs in remand for resentencing and assigns reasons.

Defendant’s claim of excessiveness is without merit. However, the result is correct, since the matter must be remanded simply to correct the inadvertent reference to the marijuana charge.


text:
    STATE of Louisiana v. Wilson GAGE.
    No. 80-KA-2472.
    Supreme Court of Louisiana.
    June 5, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Alan Dus-souy, Asst. Dist. Attys., for plaintiff-appel-lee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM.

Defendant Wilson Gage was charged by grand jury indictment with two counts of distribution of heroin in violation of La.R.S. 40:966(AX1), Acts 1973, No. 207, § 3. After trial before a jury on February 9, 1976, he was found guilty as charged on both counts. The trial court sentenced him on each count to life imprisonment at hard labor, the sentences to run consecutively. On February 15,1980, we granted the defendant leave to proceed with an out-of-time appeal. He is now before the Court, urging by a single assignment of error that the trial court’s sentencing reasons do not adequately explain the sentences imposed.

The record does not contain a full statement of the trial court’s sentencing reasons. The trial court, having strongly condemned the drug traffic and its serious effect on society, did indicate that it felt it had “no control” over the penalties under the statute. On the basis of these brief remarks made at the hearing, a fuller explanation from the trial court of the sentences imposed appears necessary in two respects: eligibility of the defendant for probation under the appropriate law in effect at the time of the offenses, see, State v. Foret, 380 So.2d 62 (La.1980); State v. Whitehurst, 319 So.2d 907 (La.1975); and the availability of concurrent, as opposed to consecutive sentences, under La.C.Cr.P. Art. 883.

Accordingly, we affirm defendant’s convictions but vacate the sentences imposed and remand the case for resentencing in conformity with the sentencing guidelines set forth in La.C.Cr.P. Art. 894.1.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND CASE REMANDED FOR RESENTENCING.

LEMMON, J., dissents with reasons.

LEMMON, Justice,

dissenting.

The trial judge, while commenting that he had “no control” over a life sentence for distribution of heroin, chastized defendant about the havoc caused by the “commodity you deal with on the streets” and imposed consecutive life sentences. Since the judge demonstrated his intent to punish severely and stated the reasons therefor, there is no reasonable basis to suppose that the judge was unaware he could suspend the sentence or that he erroneously believed he was required to impose consecutive sentences.

Inasmuch as the trial judge did not abuse his discretion by imposing consecutive sentences and clearly intended to do so, I would affirm the sentences.

      . Under the law in effect at the time of this offense defendant was eligible for parole on a life sentence.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Willie WATSON, Jr.
    No. 81-K-1472.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re: State of Louisiana, through the District Attorney, Harry J. Morel, Jr., applying for Writs of Certiorari, Mandamus, Prohibition and Stay Order, Parish of St. Charles, No. 81-069.

Denied.

BLANCHE, J., would grant the writ.

LEMMON, J.,

dissents.

While any person may be called as a witness, the application complains about specific questions and answers which are anticipated. In my opinion evidence at a sentencing hearing is properly limited to mitigating circumstances of the offense. Opinion evidence attacking the morality of the death penalty in general should be excluded.


author: LABORDE, Judge.

text:
    James HERNANDEZ, Plaintiff-Appellee, v. CITY OF LAFAYETTE, City Council of Lafayette, Defendants-Appellants.
    No. 8098.
    Court of Appeal of Louisiana, Third Circuit.
    March 26, 1981.
    Rehearing Denied May 8, 1981.

      Charles L. Siemon, Wendy U. Larsen, of Ross, Hardies, O’Keefe, Babcock & Parsons, Chicago, Ill., Voorhies & Labbe, John W, Hutchison, Allen R. Ingram, Lafayette, for defendants-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, John G. Torian, II, and Michael G. Durand, Lafayette, for plaintiff-appellee.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

Appellants, the City of Lafayette and the City Council of the City of Lafayette appeal an adverse judgment of the district court in an action for declaratory and injunctive relief filed by James E. Hernandez, appellee, challenging the validity of the zoning ordinance of the City of Lafayette as it applied to land owned by Hernandez. The trial court rendered judgment in favor of Hernandez and directed the City of Lafayette to rezone plaintiff’s property from R-l-A to B-l-O.

The issue on appeal is the validity of the zoning ordinance of the City of Lafayette as applied to the Hernandez property. We reverse the decision of the trial court. The presumption of validity which attaches to legislative enactments can be overcome or defeated only by proof that no competent evidence has been adduced to support the result of the legislature’s action. We find that the zoning decision of appellants as it applies to the Hernandez property is supported by substantial and competent evidence adduced in proceedings which were regular and orderly.

THE FACTS

On three (3) separate occasions beginning on August 12, 1975, Hernandez sought to have his property rezoned from R-l-A residential (single family detached and townhouse) to B-l-M (medical office), R-2 (apartments) and B-1-0 (professional office). All three (3) legislative attempts failed to become law under the provisions of the charter of the City of Lafayette. In his petition, Hernandez alleged that the City’s failure to rezone his property as requested violated the Louisiana Municipal Zoning Regulations, LSA-R.S. 33:4721 et seq. and the constitutions of the State of Louisiana and the -United States.

The Hernandez property is a 16.7 acre highly irregular tract of land located in the City of Lafayette immediately south of the intersection of West Bayou Parkway and South College Road. (See appendix “1” attached hereto. The Hernandez property is shaded.) The property located to the north, east, south, and west of the Hernandez property is zoned R-l-A. To the northwest, across West Bayou Parkway from the narrow neck of the Hernandez property is a tract of land zoned R-2 which has been developed into townhouses. A tract of land zoned B-l-M is located to the northwest on the opposite side of South College Road. To the east of the Hernandez tract is Coulee Mine, a fifty foot drainage canal. To the south of the Hernandez tract is the largest sewerage treatment plant in the city of Lafayette. The sewer plant was constructed prior to most of the development in the neighborhood, including the Hernandez residence. The property is traversed by a series of utility easements. The property is currently improved with two single-family detached residences, and has been used for residential purposes for many years. The Hernandez property is zoned R-l-A.

In his written reasons for judgment dated June 9, 1980, the trial judge concluded that:

“After reviewing the law and the evidence and hearing the arguments of counsel, the Court finds the denial of the rezoning of the Hernandez property to have been an arbitrary, capricious, unreasonable and excess use of the police power. In addition, this Court finds this denial of rezoning bears no substantial relation to the promotion of the public health, safety, morals or general welfare of the citizens of the City of Lafayette.”

On June 25, 1980, the trial court entered judgment in favor of Hernandez and directed the City of Lafayette to rezone the Hernandez property to B-l-O.

The appellants urge four (4) trial court errors:

“1.
The trial court erred by exceeding the proper scope of judicial review by considering evidence of motives of the city.
2.
The trial court erred by exceeding the proper scope of review by substituting its judgment for that of the city’s.
3.
The trial court erred by its findings of facts which are so contrary to the manifest weight of the evidence that they and the court’s ruling are clearly erroneous.
4.
The trial court erred in .excluding expert testimony based on hearsay during defendants’ case.”

Assignments of error 1 and 2 will be considered and discussed together. In view of our decision we pretermit discussion of errors 3 and 4 assigned by appellant.

The validity of the zoning ordinance of the City of Lafayette as applied to the Hernandez property is the issue on appeal. We have previously stated that the presumption of validity which attaches to legislative enactments can be overcome or defeated only by proof that no competent evidence had been adduced to support the results of the legislature’s action. Clearly, we will not exceed that scope of review.

THE PROPER JUDICIAL SCOPE OF REVIEW

The standards or principles by which zoning regulations are tested by Louisiana courts are well-established. See, e. g., Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659 (La.1975); State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440 (1923); West v. City of Lake Charles, 375 So.2d 206 (La.App. 3rd Cir. 1979), writ refused, 378 So.2d 435 (La.1979); Trustees Under the Will of Pomeroy v. Town of Westlake, 357 So.2d 1299 (La.App. 3rd Cir. 1978), writ denied, 359 So.2d 205 (La.1978).

“It is well settled in our jurisprudence that duly enacted zoning ordinances are presumed to be valid.” (Emphasis added)

West v. City of Lake Charles, 375 So.2d at 209.

Zoning, as a legislative power, is presumed valid and one challenging a zoning enactment bears an extraordinary burden to overcome the presumption of validity. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Four States Realty Co., Inc. v. City of Baton Rouge, supra; and Henry v. City of Monroe, 349 So.2d 1006 (La.App. 2nd Cir. 1977).

“The court will uphold the ordinance unless it is clearly shown that the action of the governing authority was arbitrary or unreasonable, or that the action taken violated a provision of the constitution or of the enabling statutes.”

Kirk v. Town of Westlake, 373 So.2d 601 at 602 (La.App. 3rd Cir. 1979), writ denied, 376 So.2d 1268 (La.1979). Doubtful cases will be resolved in favor of the validity of the challenged zoning enactment. Four States Realty Co., Inc. v. City of Baton Rouge, supra; and Kirk v. Town of Westlake, supra.

And, in testing the validity of an ordinance, the courts have nothing to do with the wisdom or good policy of the ordinance. This judicial deference to legislative discretion in the enactment of laws, zoning or otherwise, is a cornerstone of the doctrine of separation of powers.

“[Although it has been indicated in some decisions that a court may be given by statute power to substitute its judgment for that of a city government relative to zoning matters, a statute so providing has been deemed unconstitutional on the ground that the legislative functions of adopting zoning plans and laws may not be performed by the- judicial department of government.”

Meyers v. City of Baton Rouge, 185 So.2d 278 (La.App. 1st Cir. 1966).

A challenge to a zoning decision in Louisiana is not an appeal from the decision of a lower tribunal wherein the court scrutinizes the record below to test the accuracy of the City’s decision; rather it is a de novo proceeding which tests whether the result of the City’s legislation (here the R-l-A classification) is “arbitrary and therefore a taking of property without due process of law.” Westside Lumber & Supply v. Parish of Jefferson, 357 So.2d 1384, 1385 (La.App. 4th Cir. 1978). In Meyers v. City of Baton Rouge, supra, the First Circuit noted that even where no competent evidence to support a zoning decision was adduced in front of the governing body, the resulting legislation will nevertheless be upheld if the result is supported by evidence adduced at trial. The Meyers court explained:

“The initial action by appellants herein is not an appeal but rather a suit attacking the validity of a duly adopted municipal ordinance ...” (at 281)

And

“that the hearings required are designed solely to afford interested parties an opportunity to be heard before the governing authority makes a decision under its police power ... How, when and where the local authorities gain knowledge of the subject matter is of no concern to the courts. What is said at the required public hearings is not necessarily the criteria of reasonableness when an ordinance of such nature is attacked as being arbitrary or discriminatory. The test to be applied is whether it is in fact arbitrary, unreasonable and discriminatory in the light of all attending circumstances.” (at 282-83) (Emphasis added)

In Westside Lbr. & Supply v. Parish of Jefferson, supra, the Fourth Circuit reversed a trial court’s decision because it had applied the wrong test in reviewing a local legislative zoning decision. The trial court had ruled that the test was “simply to determine whether or not the board acted arbitrarily.... and whether or not the decision of the board was supported by substantial and competent evidence adduced in proceedings which were regular and orderly.” In reversing the trial court, the Fourth Circuit reaffirmed the distinction between review of administrative and legislative decisions of local government. The proper test for legislative decisions is not whether the board acted arbitrarily in light of the evidence it had before it at the time of decision but whether the resulting “legislation is so arbitrary and therefore a taking of property without due process of law.”

THE HERNANDEZ CHALLENGE TO THE ZONING ORDINANCE

One challenging a zoning enactment has the difficult burden of proving to the Court that the existing classification is unreasonable, that is, that it bears no substantial relationship to the public health, safety, morals or general welfare of the municipality. It is not enough to show that the new zoning sought is reasonable. West v. City of Lake Charles, supra. Nor is it enough to show that reasonable men might reach a different conclusion from that reached by the City, Maher v. City of New Orleans, 516 F.2d 1051, 1061 (5th Cir. 1975), cert. denied 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 because courts do not substitute their judgment for that of the legislative branch of government.

“But courts may not become virtual zoning boards and it is not our function to judge the zoning merits of the proposed change or the wisdom of the Council in turning it down. We may disagree with the Planning Director and the Parish Council, and had we been sitting on the Parish Council we may have voted for the change, but that is not to say that plaintiffs are now as a matter of law entitled to invalidate the action taken by the Parish Council.”

Paternostro v. Parish of Jefferson, 289 So.2d 327, 331 (La.App. 4th Cir. 1973), writ refused, 293 So.2d 183 (La.1974).

In our view the trial court failed to perform this duty. The record contains substantial evidence to support an objective determination that the property should remain zoned R-l-A, residential, rather than be rezoned under a commercial classification.

Evidence adduced at trial shows that rezoning of the subject property from residential to commercial could be incompatible with and have an adverse effect on the surrounding areas. For one, the vast majority of the developed land in the general vicinity of the subject property is zoned residential. In fact, except for the fifty-foot neck of plaintiff’s property, the subject tract is surrounded by residentially zoned or residentially used property. In this regard, there was considerable testimony showing legitimate concern that allowing a commercial intrusion into the residential neighborhood may initiate a chain of further commercial rezonings thus destroying the neighborhood’s residential character. Plaintiff’s own planning expert, Dr. Dennis Ehrhardt, testified that such rezoning would be likely to cause this so-called “domino effect.” His testimony was corroborated by testimony of Mr. Bert Landry, a former director of city planning whose deposition was introduced into evidence by plaintiff. Mr. Landry stated:

“The [city] would be hard pressed to deny similar uses .... it would make the ultimate character of the area commercial.” (Tr. 1081)

Another adverse impact on the surrounding area is the increased traffic congestion which would result from a commercial rezoning of plaintiff’s land. The record in this regard shows that development of the property for non-residential uses would produce unsafe traffic conditions. For example, Mr. Richard Gern, a traffic expert with 23 years of practical experience throughout the nation, testified regarding the traffic impact of R-l-A, R-2, B-1-0 and B-l-M zonings of the subject property. Based on his analysis of known trip generation rates adjusted to reflect local traffic factors in Lafayette, Mr. Gern testified that unsafe traffic conditions would result if the property were developed as R-2, B-l-M or B-1-0. In contrast, he testified that R-l-A would have no adverse impact on adjacent roads because the traffic system had available capacity for such uses. Mr. Gern further testified that in order to accommodate the traffic generated by the more intense use classification, substantial changes in the character of roads through established neighborhoods would be required to the substantial detriment of those neighborhoods. In Gern’s opinion, such changes would have serious adverse impacts upon the city as a whole. In addition, any nonresidential classification would substantially decrease intersectional capacity and result in traffic 36% over design capacity which, according to Mr. Gern, would undoubtedly lead to unsafe conditions.

Upon our review, we hold that the record in this case does reveal a valid, objective basis upon which the City of Lafayette could reasonably conclude that retaining the R-l-A zoning classification of the subject property serves the public health, safety and welfare.

Upon our finding that the City of Lafayette did not act unreasonably in retaining the R-l-A zoning classification, our inquiry continues. We now must determine whether the City acted arbitrarily or in an unconstitutional manner in refusing to reclassify plaintiff’s property.

That the City of Lafayette did not act arbitrarily is evident from its zoning history, not only of the area surrounding the subject property, but of other areas throughout Lafayette as well.

The Director of Planning, the City’s Zoning Administrator, an expert land use planner and a traffic engineer testified in regard to the planning issues involved in the R-l-A classification as applied to plaintiff’s property. According to the record the property is located in a “planning” area circumscribed by South College Road, Pin-hook Road, the Vermilion River, Brentwood Boulevard and Johnston Street. Within that neighborhood are two high intensity use corridors — one along Johnston Street and the other along South College Road. The zoning history of the vicinity of the subject property reveals that the southern border of the high intensity zone along South College — the boundary plaintiff asks the Court to extend down West Bayou Parkway — has been intact since 1963 and that the City has never waivered in its treatment of the subject property.

Mr. W. Anthony Wiles, a land use planner with 18 years of experience in land planning and development, after being qualified as an expert, described in detail a series of zoning and planning analyses he conducted. These analyses were based on an examination of the zoning ordinances adopted by the City of Lafayette, along with its zoning maps and all ordinances rezoning property since 1963. According to Mr. Wiles this examination revealed several distinct policies:

“1. that the area of the subject property has always been maintained as low density single-family residential with the exception of a high intensity corridor along South College and Johnston.
2. that the zoning actions of the City reflect a very strong relationship between the arterial network and major concentrations of commercial development within the City.
3. that large scale commercial development has been confined to the intensity corridor, along South College and Johnston Streets, the central business district, the oil center, or the periphery of the City.
4. that property previously zoned R-1-A has very rarely been rezoned unless the action would conform to the aforementioned policies.” (Tr. 1652, 1654)

The City’s zoning decisions have been uniform in confining commercial and business districts to frontage on the City’s arterial road network.

Mr. Wiles’ study also showed that South College has been designated for high intensity uses since the area was annexed into the city. Moreover, the natural boundary at the intersection of West Bayou Parkway and South College between the high intensity corridor and the R-l-A district has not waivered in 17 years.

We find the City’s denial of rezoning in the instant case to be consistent with its prior land use policies. Hence, we hold that the City did not act arbitrarily.

We next determine whether the City’s action denies plaintiff due process by depriving him of all beneficial use of his property.

Louisiana courts have held that a regulation which deprives a landowner of all beneficial use of his property deprives him of his property without due process of law. Hardy v. Mayor and Board of Aldermen et al., 348 So.2d 143 at 149 (La.App. 3rd Cir. 1977), writ refused, 350 So.2d 1212 (La.1977); Dufau v. Parish of Jefferson, 200 So.2d 335, 337 (La.App. 4th Cir. 1967). However, the fact that a zoning ordinance does not permit an owner the most advantageous economic use of his land does not render the ordinance invalid. West v. City of Lake Charles, supra.

Applying the above principles to the instant case, we hold that plaintiff failed to show that the subject property has no practical use under the present R-l-A classification. In fact, plaintiff’s own witnesses established the utility and value of the property for development under the R-1-A classification. For example, Dr. Eh-rhardt testified that, based on his familiarity with the housing market in Lafayette and his experience in real estate, the property is worth at least $1,000,000. In addition, the City’s expert appraiser, the only appraiser who testified as to land values, stated that his analysis (based on two separate appraisal approaches) indicated a value of $75,000 per acre which equals approximately $1,180,000 for the tract excluding the site of the Hernandez home.

In conclusion, our review of the record convinces us that plaintiff has failed to meet his burden of proving that the City’s classification of the property was unreasonable, arbitrary, or a denial of due process. Further, we do not find that there has been an abuse of discretion or excessive use of power by the City in refusing to rezone the Hernandez property.

For the foregoing reasons the judgment of the district court is reversed and set aside.

It is now ordered, adjudged and decreed that plaintiff’s suit against defendants be dismissed with prejudice. All costs in the trial court as well as the costs of this appeal are assessed against the plaintiff.

REVERSED AND RENDERED.

GUIDRY, J., concurs in the result.

APPENDIX “ í”

      . LSA-R.S. 33:4721 provides:
      “For the purpose of promoting health, safety, morals, or the general welfare of the community, the governing authority of all municipalities may regulate and restrict the height, number of stories, and size of structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of the buildings, structures, and land for trade, industry, residence, or other purposes; provided that zoning ordinances enacted by the governing authority of municipalities or the acts of the zoning commission, board of adjustment as herein provided for, or zoning administrator shall be subject to judicial review on the grounds of abuse of discretion, unreasonable exercise of the police powers, an excessive use of the power herein granted, or the denial of the right of due process, provided, further, that the right of judicial review of a zoning ordinance shall not be limited by the foregoing.”


author: EDWARDS, Judge. EDWARDS, Judge, PONDER, Judge,

text:
    Joseph Clifford FAULK, Sr. v. CAGLE SUPPLY, INC., Roland A. Authement, Jr., and State Farm Mutual Automobile Insurance Company.
    No. 14105.
    Court of Appeal of Louisiana, First Circuit.
    April 24, 1981.
    Rehearing Denied June 29, 1981.

      Nicholas F. Larocca, Jr., Lippman, Mahfouz & Martin, Morgan City, for plaintiff-appellant.
    P. Robert Viguerie, Jr., Logan, de Launay & Stutes, Lafayette, L. Albert Forrest, New Iberia, for defendants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Joseph Clifford Faulk, Sr., a mailman, was injured on January 18, 1978, when the postal truck he was occupying was backed into by a truck driven by Roland A. Authement, Jr., owned by Cagle Supply, Inc., and insured by State Farm Mutual Automobile Insurance Company.

Faulk brought suit against Authement, Cagle and State Farm seeking $350,000 in damages and requesting trial by jury. Following trial, an unanimous jury awarded Faulk $14,000. The trial court signed judgment pursuant to the jury verdict and also awarded interest and all costs including $850 in expert witness fees. A check for $17,857.91, amounting to the entire judgment due, was deposited into the registry of the court by defendants.

Plaintiff appeals claiming that 1) the jury improperly failed to award the stipulated damages and 2) the total award made was so low as to shock the conscience.

A careful reading of the record indicates that defendants never stipulated to liability for all the special damages claimed. To the contrary, only the amounts claimed were stipulated to.

Dr. Lawrence J. Russo, an orthopedic surgeon, testified that plaintiff initially suffered from a lumbar strain; that, through the use of muscle relaxants and conservative treatment, plaintiff’s condition seemed to improve; that plaintiff was cooperative, was not feigning injury, and had a positive attitude toward recovery; that, despite treatment, plaintiff continued to suffer from pain; that his second diagnosis was chronic back strain with spasm in the lumbar area, restricted motion and pain; and that by November of 1980, he believed plaintiff should retire.

Dr. William Preston Cloyd, a psychiatrist, testified that plaintiff was a perfectionist-type compulsive, a “driving-type person” who, as a result of the accident, developed a psychoneurotic depressive reaction and had “problems of keeping in touch.”

Dr. Kenneth E. Vogel, a neurologic surgeon, testified that plaintiff had a chronic lumbar strain and suffered “a five percent residual impairment of the body as a whole.” Dr. Vogel also testified that plaintiff twice underwent both a myelogram and a lumber facet rhizotomy.

Dr. Robert L. Applebaum, a neurosurgeon, saw plaintiff once in April of 1980. At that time, plaintiff complained of intermittent aching pain which decreased with rest and increased with exertion. Dr. Ap-plebaum testified that, in addition to the present injury, plaintiff had suffered a back injury twenty years previously; that plaintiff had no muscle spasm, no impaired range of motion, no curvature of the lumbo-sacral spine, no muscle weakness or wasting, no sensory variation to a pinprick test, no disease or damage to the spinal cord or nerve roots and no lumbosacral abnormality; that he did not perform rhizotomies, that rhizotomies were being done less and less, and that plaintiff had not needed either one; that plaintiff showed no evidence of disability, had no true injury at the time of examination and that there was no physical basis for pain; and that there was no reason plaintiff could not return to work. Dr. Applebaum also testified that at one point, plaintiffs reactions to a leg raising test showed inconsistent responses.

Obviously, the jury chose to place more emphasis on the evidence given by Dr. Ap-plebaum than on that of Drs. Russo, Cloyd and Vogel, all of whose testimony was more favorable to plaintiff. The jury apparently did not believe plaintiff needed the great amount of treatment he sought. Nor did the jury believe plaintiff had lost so much in wages as was claimed. Babineaux v. Firemen’s Insurance Company of Newark, New Jersey, 381 So.2d 904 (La.App. 3rd Cir. 1980).

We do not try cases — we review them. We are unable to articulate sufficient reasons from which we could conclude that the jury’s result was clearly wrong.

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are to be paid by Joseph Clifford Faulk, Sr.

AFFIRMED.

EDWARDS, J., concurs and assigns reasons.

PONDER, J., dissents and assigns reasons.

EDWARDS, Judge,

concurring.

The dissenting opinion in this case illustrates, once again, the difficult position in which intermediate appellate courts find themselves when called on to review quantum awards.

In Walton v. William Wolf Baking Company, Inc., 396 So.2d 962 (La.App. 1st Cir. 1981), this same panel of judges affirmed a judgment for $317,573.60. Today we affirm a judgment for $14,000.00. In both cases the affirmance was by a divided panel with Judge Ponder dissenting — in Walton because he found the award too high and today because he finds it too low.

In both cases I have had grave doubts as to the result’s correctness. I, too, believed the award in Walton to be excessive and the award today to be insufficient.

Given the reality of fact review and the presumed supremacy of constitutional provisions over codal authority, I see no reason why a higher court should not be free to change the result of a lower court judgment without having to provide detailed justification. This argument was set forth in scholarly fashion by Judge Beer in Gaudet v. Allstate Insurance Company, 346 So.2d 333 (La.App. 4th Cir. 1977), writ denied 350 So.2d 892 (1977).

Nevertheless, because Reck v. Stevens, 373 So.2d 498 (La. 1979), and Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1977), dictate otherwise and because I was, and am, unable to articulate sufficient reasons to justify changing the judgments below, I concur.

PONDER, Judge,

dissenting.

I dissent. I think it is manifest error to award a total, of $14,000.00 when the special damages, stipulated to or not, exceed $30,-000.00.

The contested issues are really the length of disability and the necessity of some of the treatment, not the existence of the disability. I think the preponderance of the evidence is that plaintiff suffered greatly, incurred large sums for treatment and lost a considerable amount of wages.

I recently dissented to an award of $317,-573.60 in a case that had some remarkable points of similarity to the present case. That award “shocked my conscience.” The present award “shocks my conscience.” The disparity of the two awards really “shocks my conscience.”


author: REDMANN, Judge.

text:
    ORIGINAL CABOOSE, INC. d/b/a Tina’s Dress Shop v. Chris ULLO.
    No. 11909.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 1981.

      Harold E. Molaison, Gretna, for plaintiff-appellant.
    George B. Richard, Marrero, for defendant-appellee.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal on exception of prescription of its demand for damages from fire originating in an adjacent building owned by defendant.

The question is whether citation and service of process upon a person who is mistakenly sued individually as the owner of the offending property interrupts prescription as to the true corporate owner, when the person sued is president and agent for service of process of the corporation. (Plaintiff filed a pleading, after prescription would have accrued, seeking to amend its petition to substitute the corporation for the individual defendant.)

The answer is found in Andrepont v. Ochsner, La.App.Orl. 1955, 84 So.2d 63, and Norwich Union Ind. Co. v. Judlin & Whitmire, La.App.Orl. 1927, 7 La.App. 379, writ refused. In both Andrepont and Norwich, timely suit against the corporate president was ruled sufficient notice to the corporation to interrupt prescription. Presumably the trial judge ruled as he did because Andrepont is said by McClendon v. Security Ins. Co. of Hartford, La.App. 4 Cir. 1976, 340 So.2d 426, to have been impliedly overruled (by Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., La. 1974, 296 So.2d 271.) That dictum of McClendon was not part of its ratio, however, and McClendon itself pointed out the factual distinction between itself and Andrepont, namely McClendon’s timely suit against the corporation as not constituting notice to the president, as opposed to Andrepont’s timely suit against the president as constituting notice to the corporation. We point out that Majesty was simply not a case concerning interruption of prescription as to a corporation by suit against its president or vice versa. Majesty was a suit against a nonexistent defendant at a nonexistent place and it is not controlling here.

Andrepont controls. Timely suit against the corporate president, even in his individual capacity, was sufficient to interrupt prescription as against the corporation.

Reversed.


author: SARTAIN, Judge.

text:
    Juan ACOSTA v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, and Christian A. Frey.
    No. 11495.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1981.

      August J. La Nasa, New Orleans, for plaintiff-appellee.
    O’Keefe, O’Keefe & Berrigan, Cerio A. Di Marco, New Orleans, for defendants-appellants, Dept, of Transp. and Development.
    Garon, Brener & McNeely, Jacques F. Bezou, New Orleans, for defendant-appellant, Christian A. Frey.
    Robert E. McDonald, Miles Mark, Metair-ie, for intervenor, Allstate Ins. Co.
    Before GULOTTA, SCHOTT and SAR-TAIN, JJ.
   SARTAIN, Judge.

The accident giving rise to this litigation occurred at about 7:30 p. m. on April 5,1977 on Louisiana Highway 46 near its intersection with Ricouard Road in St. Bernard Parish. Juan Acosta sustained serious bodily injuries when his automobile was involved in a head-on collision in its own lane of travel with a vehicle owned and operated by Christian Frey. Frey contends that he lost control of his vehicle when he attempted to reenter the paved portion of the highway after either his right rear or both of his right wheels fell into a rut on the shoulder of the road bed. Acosta named as defendants Frey and the State of Louisiana through the Department of Highways (Department). Allstate Insurance Company intervened to recover sums paid to or on behalf of Acosta under the uninsured motorist and medical pay provisions of its policy on the Acosta vehicle.

The Department and Frey interposed the defense of contributory negligence to Acosta’s claims and filed third party and recon-ventional demands respectively against each other for full indemnification and, alternatively, contribution for any award against either of them in favor of Acosta.

Following trial on the merits the district judge awarded judgment in favor of Acosta and against the Department and Frey, individually, jointly and in solido, in the net amount of $18,010.00, together with legal interest and costs. The same defendants were similarly cast in favor of Allstate in the sum of $7,771.00. The third party demand of the Department and the reconven-tional demand of Frey were dismissed. The Department (suspensively) and Frey (devol-utively) entered timely appeals.- We affirm.

The Department contends that the decision of the trial court is in error in that it (1) found the Department negligent, (2) failed to hold that the actions of Frey were the sole cause in fact of the accident, and (3) failed to hold Acosta contributorily negligent. Frey contends that the trial judge erred in concluding that his negligence was a cause in fact of the accident.

We are not favored with either oral or written reasons by the trial judge. However, inherent in his decision is the conclusion that each defendant was negligent and that their respective negligence substantially contributed to the accident. We agree.

Highway 46 at the scene of the accident is constructed of asphalt, 18' wide and bordered by shell and dirt shoulders. At the time of the accident the weather was clear and the roadway was dry. Each car was travelling at a reasonable rate of speed, not over 40 miles per hour, and had its lights on dim. The highway at this point has a slight curve but vision of approaching cars is not impaired.

Acosta testified that he had earlier stopped at a convenience store for cigarettes and was proceeding in an easterly direction when the first thing he noticed was the Frey vehicle bearing down on him. He only had time to brace himself for the impact. He did not observe the Frey vehicle leave the asphalt portion of the highway or its “fishtailing” movement upon its return to the asphalt. He insists that he was in his proper lane of travel at the time and there is no evidence in the record to the contrary.

Frey’s testimony is that he was proceeding in a westerly direction between 35 and 40 miles per hour. He turned his head to the right as he threw a package of cigarettes out of the window of his car. At this moment he thought that his right rear wheel left the pavement. He first applied his brakes and then accelerated his vehicle. As he re-entered the asphalt portion of the highway his car began to “fishtail”. Just as he got his vehicle straightened out, the impact occurred. He had not previously noticed the approach of Acosta. He also conceded that he was aware of the narrow pavement (18 feet) and the dangerous ruts.

The clear preponderance of the evidence is that the shoulder paralleling the westbound lane of travel was 3 to 5 inches lower than the asphalt. This difference in elevation was also referred to in the testimony as a “rut”. At one spot the “rut” was described as being 5 to 7 inches in depth. One witness stated that even after the shoulder was mechanically graded the “rut” would reappear in a matter of days and that this condition had existed for many years.

Frey relies on the following language in Rue v. State, Dept. of Highways, 372 So.2d 1197, 1199 (La.1979):

“A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely the Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself travelling on, or partially on, the shoulder.
“We conclude that plaintiff’s conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder. We therefore expressly overrule Hopkins v. Department of Highways, supra [167 So.2d 441 (La.App.)].”

and contends that his inadvertent departure from the paved portion of the highway was not legal cause in fact of the accident. We think his reliance on Rue is misplaced. In explaining Rue, the Supreme Court in Sinitiere v. Lavergne, 391 So.2d 821, 826 (La. 1980) stated:

“In Rue, supra, this court stated that a motorist’s duty to drive reasonably does not extend to the risk of injury from striking an unexpected and unexpectable hazard resulting from a negligently maintained highway shoulder. The reason for this statement was the jurisprudentially recognized rule that a motorist has a right to assume that highway shoulders are maintained in a reasonably safe manner in the absence of knowledge or reason to know of a defect. This language does not establish the highway shoulder as a ‘zone of recovery’ for every straying motorist. Rather, it states the simple principle that the law will not automatically bar a person from recovery or charge him with liability vis-a-vis third parties where the law does not charge that person with actual or constructive knowledge of an avoidable danger. Thus, if a person is chargeable with knowledge of a shoulder defect that could cause serious injury and, nevertheless, disregards his own safety and the safety of others, the law considers his actions in leaving the main travel portion of the roadway to be a breach of his duty to himself and to the others who can reasonably be expected to be injured by his actions. See Rodgers v. Department of Highways, 376 So.2d 1295 (La.App. 2nd Cir. 1979); Morrow v. Department of Highways, 377 So.2d 430 (La.App. 2nd Cir. 1979).”

The facts in Sinitiere are practically identical to those in the case now before us. In Sinitiere as here there was (1) a dangerous condition in the shoulder of the road, (2) the offending motorist was not confronted with a perceivable emergency reasonably dictating his departure from the pavement, (3) the motorist knew of the dangerous condition of the shoulder, and (4) the motorist also made a rapid and sudden movement to reenter the main roadway.

The Department offered expert testimony to the effect that the actions of Frey in applying his brakes and then accelerating his vehicle, coupled with his sudden turning to the left, caused him to lose control of his vehicle and that this would have occurred even without the existence of the “rut”. The trial judge rejected this conclusion and we find no error in his doing so.

Secondly, the Department contends that notwithstanding all of the testimony concerning the dangerous condition of the shoulder, it never received any notice thereof, direct or otherwise. The records of the Department which were offered into evidence reveal that the shoulders of the road in the unit comprising the scene of the accident were reshaped on March 2,1977, at which time some 70 yards of shells were used to grade the area. The Department’s inspector for that unit of the highway had retired by the time of trial and was not available to testify. Conceding that no direct notice was given to the Department by any of the parties living in the vicinity of the accident, the question is whether the Department is deemed to have had constructive notice of the dangerous condition of the shoulder by virtue of the existence of the “rut” over a period of many years. We hold that the Department had such notice. Willis v. State ex rel. La. Dept. of Highways, 321 So.2d 819 (La.App. 1st Cir. 1976); writ denied 325 So.2d 280 (La.1976); and, Jones v. La. Dept. of Highways, 338 So.2d 338 (La.App. 2nd Cir. 1976).

The Department and Frey contend that Acosta was contributorily negligent in not observing the Frey vehicle until the collision was inevitable. They reason that had he observed that which he should have seen he could have slowed his vehicle down and avoided the accident as Frey “was just getting his car under control.” We find no merit in this argument. Even Frey testified that the entire series of events, his dropping off into the “rut”, his return to the pavement, and the “fishtailing” of his vehicle, occurred in a matter of seconds.

The question of quantum was not raised on appeal.

For the above reasons the judgment of the district court is affirmed.

AFFIRMED.

      . Now the Department of Transportation and Development.

      . Allstate’s separate suit for these sums was consolidated for trial with Acosta’s suit.

      .Pain and suffering $ 7,750.00
      Residual disability 12,500.00
      Loss of wages 2,660.00
      $22,910.00
      Less uninsured motorist
      payment to Acosta by Allstate 4,900.00
      $18,010.00

      . A drop of some 3V2 to 4 inches from the travel portion of the highway to the abutting shoulder.


author: DOUCET, Judge.

text:
    Jeanette SMITH, Plaintiff-Appellee, v. HARTFORD ACCIDENT & INDEMNITY CO., et al., Defendants-Appellants.
    No. 7955.
    Court of Appeal of Louisiana, Third Circuit.
    May 18, 1981.
    Rehearing Denied July 8, 1981.

      Traylor & Kramer, Michael E. Kramer, Winnsboro, for defendant-appellant-appel-lee.
    Bean & Rush, Ernest L. Parker, Mouton & Jeansonne, David S. Cook, Lafayette, for defendants-appellees-appellants.
    Pucheu & Pucheu, Jacque B. Pucheu, Jr., Eunice, for plaintiff-appellee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   DOUCET, Judge.

Plaintiff, Jeanette Smith, brought this suit to recover damages for personal injuries that she sustained on December 9,1977 when she fell through the floor of a mobile home that she was renting from Tommy Myers. Defendants are Myers’ insurer, Hartford Accident & Indemnity Company (Hartford), and the manufacturer of the mobile home, Franklin Homes, Inc. (Franklin).

Plaintiff’s petition was filed on October 6, 1978. On January 12, 1979, Hartford answered and filed a third party demand against Franklin, seeking indemnification for any judgment rendered against it. On February 2, 1979, Franklin answered and filed third party demands for indemnification against Myers, Hartford and Albert LeBlanc Mobile Homes, Inc. (LeBlanc), the retailer that sold the mobile home to Myers.

Hartford and LeBlanc filed exceptions of prescription in response to Franklin’s third party demands. In addition, LeBlanc filed an exception of improper venue. Hartford’s exception was sustained; both of Le-Blanc’s were overruled.

Following a trial, the district court found that Myers, LeBlanc. and Franklin were joint tortfeasors with regard to the injuries suffered by plaintiff. Judgment was rendered (1) in favor of plaintiff and against Hartford and Franklin, in solido, in the sum of $41,495.51, (2) in favor of Hartford on its third party demand against Franklin in the sum of $13,831.84, and (3) in favor of Franklin on its third party demand against LeBlanc in the sum of $13,831.84. From that judgment, Hartford, Franklin and Le-Blanc have appealed.

FACTS

In 1976, plaintiff rented a mobile home in Eunice, Louisiana from Tommy Myers. In October, 1977, approximately one year after she had moved into it, plaintiff noticed a crack in the linoleum covering the hall floor. The linoleum immediately adjacent to the crack was discolored, and the floor appeared to be weakened. Plaintiff notified Myers of the problem, and after he had inspected the floor, her daughter placed a suitcase over the discolored area to prevent anyone from walking on it.

Myers contacted LeBlanc and Franklin. LeBlanc informed him that because the mobile home was three years old, it was no longer under warranty, and it disclaimed responsibility for the damage. Franklin sent out a factory representative, who found that the particle board floor had rotted due to water leakage into the walls. He caulked and sealed the roof and windows to prevent further water leakage. However, Franklin refused to repair the floor, claiming that it had found no manufacturing defects.

Myers took no further action, and on December 9, 1977, plaintiff fell through the floor, injuring her right leg, hip and back. The floor gave way approximately one foot away from the suitcase, which had been placed over the discolored area.

PRESCRIPTION

LeBlanc argues that the trial judge erred in overruling its exception of prescription based on LSA-C.C.P. Art. 1067, which provides:

“An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.”

LeBlanc contends that under this provision, Franklin’s third party demand was prescribed, because it was not filed within ninety days of the date of service of the main demand.

LeBlanc’s argument overlooks the fact that LSA-C.C.P. Art. 1067 is an exemption rather than a prescriptive statute and applies to incidental demands which otherwise prescribe after filing of the main demand, allowing a 90-day extension for filing reckoning from service of the main or third party demand. Kelly v. Louisiana Stadium & Exposition District, 380 So.2d 669 (La.App. 4th Cir. 1980); Blue Streak Enterprises, Inc. v. Gulf Coast Marine, Inc., 370 So.2d 633 (La.App. 4th Cir. 1979). In this case, Franklin’s third party demand had not prescribed at the time of filing because prescription does not begin to run on a claim for indemnification and/or contribution until the party seeking it is, itself, cast in judgment. Blue Streak Enterprises v. Gulf Coast Marine, Inc., supra. Accordingly, we find that the trial judge was correct in overruling LeBlanc’s exception of prescription.

For the same reasons, we find that the trial judge erred in sustaining Hartford’s exception of prescription, which it filed in behalf of itself and its insured, Myers. Hartford’s exception was also founded on LSA-C.C.P. Art. 1067, which as explained above cannot bar a claim for indemnification on which prescription has not begun to run. The judgment sustaining Hartford’s exception is therefore reversed and set aside.

LIABILITY OF FRANKLIN

Franklin’s witnesses testified at the trial that nearly all mobile homes, including the one that plaintiff rented from Myers, must be periodically “sealed” to prevent wall and roof leakage. If this is not done, water enters the walls and eventually finds its way to the floor, where it causes rapid deterioration. These witnesses also testified that despite the obvious danger that this presents, Franklin did nothing to inform consumers of the need to have their mobile homes periodically sealed.

Under these circumstances, we find that the trial court correctly imposed liability on Franklin as the manufacturer of a product that was “unreasonably dangerous to normal use.” Weber v. Fidelity & Casualty Ins. Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971). We cannot agree with Franklin’s contention that the mobile home was not defective, because routine maintenance would have prevented the damage to the floor. Franklin was aware of the fact that the dangerous condition causing plaintiff’s injuries could arise through normal use of the mobile home. It therefore had a duty to warn buyers of the danger, and its failure to fulfill that duty constituted “fault” within the meaning of LSA-C.C. Art. 2315. Chappuis v. Sears Roebuck & Company, 358 So.2d 926 (La.1978).

In view of the above, we reject Franklin’s argument that the trial court erred in holding it liable for plaintiff’s injuries.

LIABILITY OF LeBLANC

The trial judge’s conclusion that LeBlanc was also liable for plaintiff’s injuries was based on a finding that it either knew or should have known of the need for periodically sealing the mobile home. On appeal, LeBlanc argues that that finding was erroneous. We agree.

The record before us does not contain any direct evidence of such knowledge on the part of LeBlanc. Franklin’s witnesses une-quivocably denied having informed LeBlanc of the need for sealing the mobile home, and there is no evidence showing that it acquired this information in any other manner. It is well established that a manufacturer is presumed to know the vices or defects of the things that it makes. Weber v. Fidelity & Casualty Ins. Co. of N. Y., supra; Reeves v. Great Atlantic & Pacific Tea Co., Inc., 370 So.2d 202 (La.App. 3rd Cir. 1979). However, there is no rule of law in Louisiana which imputes the knowledge of latent vices or defects to the seller of new products, where the seller is not the manufacturer of the product. Peltier v. Seabird Industries, Inc., 304 So.2d 695 (La.App. 3rd Cir. 1974).

Since it has not been shown that LeBlanc was aware of the defect when it sold the mobile home, we conclude that the trial court erred in holding it liable. Without that knowledge, it did not have a duty to repair the damaged floor, and its awareness of the damage prior to plaintiff’s accident was immaterial.

LIABILITY OF MYERS

It is well established that an owner-lessor is held to strict liability for personal injuries sustained by his tenant as a result of a defect in the leased premises. This liability attaches whether or not specific fault on his part can be shown. Thus, neither his ignorance of the defect nor its latency will defeat the injured tenant’s recovery. LSA-C.C. Arts. 670, 2322, 2693, and 2695; Anslem v. Travelers Insurance Company, 192 So.2d 599 (La.App. 3rd Cir. 1966); Wexler v. Occhipinti, 378 So.2d 1073 (La.App. 4th Cir. 1979); Kepper v. Continental Insurance Company, 340 So.2d 1033 (La.App. 1st Cir. 1976); Anderson v. Sciambra, 310 So.2d 128 (La.App. 4th Cir. 1975).

Myers argues that he nevertheless is not liable to plaintiff because her injuries were the result of Franklin’s fault in manufacturing the defective mobile home. We find no merit in that argument. It is true that in certain instances an owner may be exculpated from liability under the above provisions, if the victim is injured not by reason of the defect, but instead because of the fault of some third person. Loescher v. Parr, 324 So.2d 441 (La.1975). However, this is not such a case.

In order for the fault of a third person to exonerate an owner-lessor from his own obligation importing strict liability as imposed by LSA-C.C. Arts. 670, 2322, 2693 and 2695, the fault must be the sole cause of the damage. It must be of the nature of an irresistable and unforeseeable occurrence, and the resulting damage can have no causal relationship whatsoever to the fault of the owner-lessor in failing to keep his building in repair. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978). In the case at hand, there is clearly a direct causal relationship between Myers’ failure to keep his mobile home in repair and the injuries that plaintiff suffered. Therefore, Franklin’s fault, which has rendered it concurrently liable, cannot absolve Myers of his own liability. See also Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980).

DEFENSE OF VICTIM FAULT

Franklin, Myers and Hartford argue alternatively that even if they would otherwise be liable to plaintiff, she may not recover because she is guilty of “victim fault” or assumption of the risk. See Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971); and Loescher v. Parr, supra. In connection with this argument, Hartford has raised the interesting question of the relationship between the concept of victim fault, which is applicable to strict liability cases, and the concepts of contributory negligence and assumption of the risk, as they have been applied to actions based on the theory of negligence. We find it unnecessary to address this question, however, since we have been unable to find fault of any kind on the part of plaintiff.

The evidence shows that plaintiff was never fully apprised of the extent of the deterioration of the floor. Although Franklin’s factory representative reported to his employers, he did not advise plaintiff of the severity of the problem or warn her not to walk anywhere near the discolored area. Under these circumstances, we cannot agree with the argument that plaintiff’s failure to take the drastic measure of moving out of the mobile home was fault, which should bar her recovery. We find that she reasonably believed that the precaution that had been taken, i. e., placing the suitcase over the discolored area, was sufficient to protect her from harm. Accordingly, we find no error in the trial judge’s rejection of the defenses of victim fault or assumption of the risk.

QUANTUM

Myers and Hartford argue that the trial court’s award of $35,000.00 for general damages is excessive. They seek a reduction to between $10,000.00 and $15,000.00.

The only medical evidence pertaining to plaintiff’s injuries was the testimony of her treating physician, Dr. Rodney E. Landre-neau. Dr. Landreneau examined plaintiff shortly after her fall and continued to see her regularly until the time of trial. When he first examined plaintiff, he found multiple contusions and abrasions of her right calf, knee and thigh. These contusions and abrasions healed within a relatively brief period of time. However, plaintiff developed other problems, which in the opinion of Dr. Landreneau were caused by the fall.

He diagnosed these other problems as sciatica, irritation of the sciatic nerve, and aggravation of a preexisting arthritic condition affecting plaintiff’s lower back. As a result of these conditions, plaintiff has suffered severe to moderately severe pain since the time of the accident. By the time of the trial, the sciatica appeared to have been effectively cured. However, she continues to have arthritic pain, which cannot be completely eliminated by medication. A1-. though this pain is not disabling, it limits plaintiff’s physical activities, because it is increased upon physical exertion. Dr. Lan-dreneau expects this condition to continue for the rest of plaintiff’s life.

It is well established that an appellate court may disturb a trial court’s award of general damages only when the record clearly reveals that the trial court has abused its great discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979). In view of the fact that this 58 year old plaintiff has suffered considerable pain and will continue to do so for the rest of her life, we do not find that the trial judge’s award of $35,-000.00 for general damages was an abuse of his discretion. The cases cited by Hartford and Myers have failed to convince us that the award is excessive under the particular facts and circumstances of this case. Accordingly, the request for a reduction is denied.

CONCLUSIONS

For the foregoing reasons, we conclude that Franklin, Myers, and the latter’s insurer Hartford, to the limits of its policy, are solidarily liable for the injuries suffered by plaintiff. Since they are solidary obli-gors neither Franklin nor Hartford are entitled to indemnification as requested in their third party demands and therefore, such demands will be dismissed. Dupree v. Pechinay Saint Gobain Co., 369 So.2d 1075 (La.App. 1st Cir. 1979), writ denied, 371 So.2d 1341. Accordingly, for the reasons assigned the judgment of the trial court is affirmed in part, reversed in part and recast to read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Jeanette Smith and against Franklin Homes, Inc. and Hartford Accident & Indemnity Company, jointly and in solido in the principal sum of $41,495.51, together with legal interest thereon from date of judicial demand until paid, the liability of Hartford Accident & Indemnity Company however, being limited to the policy limits of the policy of insurance issued to Tommy Myers.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein dismissing the demands of third party plaintiff, Franklin Homes, Inc. against Tommy Myers, Hartford Accident & Indemnity Company and Albert LeBlanc Mobile Homes.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein dismissing the demands of third party plaintiff, Hartford Accident & Indemnity Company against Franklin Homes, Inc.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the expert witness fee of Dr. Landreneau be fixed at ONE HUNDRED FIFTY AND NO/lOO ($150.00) DOLLARS and charged as costs; that the Court Reporter’s fee for transcribing the deposition of Dr. Landreneau in the amount of FORTY AND NO/100 ($40.00) DOLLARS be charged as costs; and that the expert witness fee of Mr. Harry Sum-merlin be fixed at FIFTY AND NO/100 ($50.00) DOLLARS and charged as costs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the court costs in this matter be paid by Hartford Accident & Indemnity Company and Franklin Homes, Inc.”

All costs of this appeal are assessed against Hartford Accident & Indemnity Company and Franklin Homes, Inc.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . In neither of the third party demands do third party plaintiffs seek contribution.

      . Hartford’s policy provides coverage to Myers limited however, to the sum of $25,000.