author: BLANCHE, Justice.

text:
    CAPITOL CITY LEASING CORPORATION v. Sidney D. HILL d/b/a Hill Logging Contractor, et al.
    Nos. 81-C-0538, 81-C-0585.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      Michael W. Lee of Burgess & Lee, Livingston, for defendant-applicant in 81-C-0538, and defendant-respondent in 81-C-0585.
    Andrew Jack Bennett, Jr. of Bennett & McLaughlin, Baton Rouge, for plaintiff-respondent in 81-C-0538, and defendant-respondent in 81-C-0585.
    Michael R. Connelly of Rogers & Connelly, Baton Rouge, for plaintiff-applicant in 81-C-0585, and plaintiff-respondent in 81-C-0538.
   BLANCHE, Justice.

We granted writs, 399 So.2d 597 and 399 So.2d 603, to review the decision of the court of appeal, 394 So.2d 1264. We fully agree with and adopt that court’s factual findings relative to the issues on appeal as follows:

On December 7, 1976, Sidney Hill leased two used Bombardier log skidders from Capitol City Leasing Corporation for a 24-month term with a rental of $836.80 per month for each skidder. Hill had previously obtained the skidders from Minton Equipment Company, Inc. for a trial period. Unable to obtain the proper financing to purchase the equipment himself, Hill contacted Capitol City in an attempt to arrange financing. V. W. Williamson, Capitol City’s vice president, agreed to purchase the two skidders from Minton Equipment. Hill, in turn, agreed to lease the skidders from Capitol City for the above quoted rent. Capitol City paid Minton $16,905.00 for each skidder. There was no option to purchase under the lease.

Each lease agreement contains a waiver of warranty on the back page which reads as follows:

“WARRANTIES. Lessor will request the supplier to authorize Lessee to enforce in its own name all warranties, agreements or representations, if any, which may be made by the supplier to the Lessee or Lessor, but Lessor itself makes no express or implied warranties as to any matter whatsoever, including, without limitation, the condition of equipment, its merchantability or its fitness for any particular purpose. No defect or unfitness of the equipment shall relieve Lessee of the obligation to pay rent or of any other obligation under this lease.”

On the front page of each lease agreement, printed in block letters, is the phrase: “THE TERMS AND CONDITIONS SET FORTH ON THE REVERSE SIDE OF THIS PAGE ARE A PART OF THIS LEASE.”

During the negotiation for the lease of the skidders the lessor made clear to the lessee, and all parties so testified, that the lessor would not warrant the used skidders in any manner. However, the lessor verbally told the lessee that all warranty rights would flow from the seller of the equipment to the lessee. The testimony at trial indicates that there was an express warranty running from the seller to the lessee for a thirty-day period following confection of the leases. There was no waiver of the seller’s implied warranty of fitness. La. C.C. art. 2476.

Almost from the time he began using the skidders, Hill experienced numerous problems with them. Although both skidders had been rebuilt by Minton prior to their sale to Capitol and lease to Hill, the machines experienced steering problems, wench problems, problems with the chain coming off of the wench pulley, problems with the universal joint in the drive shaft breaking, and numerous other problems rendering the skidders unfit for the logging business. Minton Equipment made a number of repairs to the machines during the 30-day express warranty period and continued to make repairs thereafter amounting to the sum of $2,250.69, which Minton is presently seeking against Hill.

Around March or April of 1977, Hill asked Capitol City if it would take the equipment back, but Capitol City refused. Williamson, vice president of Capitol City, testified that he had bought the equipment strictly for Hill’s use and that he had no use for two used log skidders. Williamson said he agreed, however, for Hill to take the equipment back to Minton with the understanding that the rental payments would remain due and owing under the lease contract. Having become frustrated with the constant breakdown of the machines, Hill had Minton Equipment take the machines to its yard in Alexandria, Louisiana in the late spring of 1977, with the understanding that Minton would attempt to sell the skid-ders.

Capitol City filed suit to accelerate the rentals under the lease in June, 1977. Some 15 months later, while the suit was pending, Capitol City obtained the two skidders from Minton and sold them at a public auction on August 20, 1978. It received $8,000 for each skidder for a total of $16,000. Hill was not notified of the sale of the skidders until after the sale.

In addition to the clause of the contract assigning all warranties of the equipment to Hill, an additional clause must also be considered in granting relief. That clause reads as follows:

“DEFAULT — Upon any default, Lessor shall have the right, at its option, but shall not be obligated, to do any one or more of the following: ... (4) Lessor may sell at private sale any and all of the equipment for cash or on credit and then file an ordinary proceeding to recover from Lessee all of the costs of taking possession, storing, repairing, and selling of the equipment plus an amount representing liquidated damages in the sum of the rental payments thereafter accruing under the terms of the lease until the termination of the lease, had the Lessee not defaulted on the lease obligation, less the net proceeds of such sale.”

The trial court rendered judgment in favor of the lessee, Sidney D. Hill d/b/a S. D. Hill Logging Contractor (Hill), and against the lessor, Capitol City Leasing Corporation (Capitol), cancelling both lease agreements and restoring to Hill a sum which represented the rentals paid on the two log skid-ders. Hill was also awarded attorney’s fees. Judgment was rendered in favor of Capitol and against the seller of the skid-ders, Minton. That judgment rescinded the sale of the skidders and ordered the return of the purchase price. Minton was ordered to reimburse the lessor for all the sums the lessor paid to Hill plus a sum representing costs of sale and repair and attorney’s fees. Minton was given a credit in the amount for which the skidders had sold at public auction. The demands of the lessor, Capitol, and the seller, Minton, against the lessee were dismissed, as were the demands of the lessee against the seller.

The court of appeal reversed in part and amended in part the decision of the trial court. The appellate court granted judgment in favor of Capitol City Leasing Corporation against Sidney Hill and Robbie C. Hill, the lessee’s guarantor, in the amount of $35,145.60, which represented the rentals due and owing under the lease, together with legal interest from date of judicial demand. That award was subject to a credit of $16,000, the amount received for the skidders at the auction. There was also judgment in favor of Capitol against Sidney Hill and Robbie Hill for $5,110.18, which represented the cost of sale and preparation for sale, together with legal interest from date of judicial demand, plus the sum of $3,829.12 for attorney’s fees, which represented 20 percent of the accrued rentals due and owing by the lessee. The court then ordered judgment in favor of Sidney Hill and Robbie Hill against Minton Equipment Company for all amounts the Hills had been cast to pay unto Capitol, plus $3,000 in attorney’s fees and costs.

We agree with the appellate court’s finding that Capitol validly assigned all its warranty rights against the seller to Hill. An assignment of warranty rights is not prohibited by the Civil Code. Civil Code art. 2541 provides that a buyer may bring an action for a reduction in price. However, this must be read in light of C.C. art. 11, which allows individuals freedom to contract as they choose so long as their contracts do not derogate from laws made for public order or good morals, or affect the rights of others, or go contrary to the public good. The assignment of rights in this case neither derogates from public order nor good morals, nor does it affect the rights of others. By assigning its rights to Hill, Capitol did not change the rights and obligations of Minton; it only changed the party entitled to enforce them.

Minton’s Liability to Hill

The court of appeal correctly determined that Minton should be considered a manufacturer after it rebuilt the machines with all new parts. See Spillers v. Montgomery Ward and Co., Inc., 294 So.2d 803 (La.1974). However, we disagree that redhibition was the proper basis upon which to grant relief. Redhibition is the avoidance of a sale because of some vice or defect in the thing sold. It requires the seller to return the purchase price and the buyer to return the thing purchased. After Capitol sold the two skidders at public auction on August 20, 1978, it could no longer return the skidders to the seller; thus, a redhibition action was no longer available. However, a reduction in price can be granted in this circumstance. To determine the correct amount in which the price should be reduced, one must look to the price which a reasonable buyer would have paid for the thing as warranted by the seller, and to the price a reasonable buyer with knowledge of the defects would have paid. In the case at bar, the original sale price for each skidder when Minton sold to Capitol was $16,905. When Capitol re-sold the skidders at auction, the buyer, who knew of the defects, paid Capitol $8,000 for each skidder. In this case, the Court will accept these sums as reflecting the amounts a reasonable buyer would pay both before and after knowledge of the defects. Although a credit for the purchaser’s use of a thing may be awarded in some instances, no such credit is warranted here. Mr. Hill’s attempts to use the machines were interrupted frequently by serious and ongoing problems caused by defects in the machines. In Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978), the Court, through Justice Dixon, stated, “A credit for a purchaser’s use of a product may be proper in certain instances, even in favor of a bad faith seller. Compensation for the buyer’s use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair.” Such is the case here and, accordingly, no credit will be awarded for the purchaser’s use. Minton will be ordered to reimburse Hill the sum of $8,905 for each skidder representing the reduced value of the skidders.

Since a manufacturer is considered a bad faith seller, Hill is entitled to additional relief from Minton. Civil Code art. 2544 provides that an action for a reduction in price is subject to the same rules and limitations as a redhibition action; therefore, C.C. art. 2545, which provides that a bad faith seller is liable for the price, repayment of expenses (including attorney’s fees), and damages, should be considered in this case.

Minton will be liable for Hill’s attorney’s fees in all proceedings. However, we disagree with the court of appeal’s finding that Minton should be required to reimburse Hill for Capitol’s attorney’s fees. In an action for redhibition or quanti minoris, a bad faith seller or manufacturer is liable for the purchaser’s attorney’s fees. In this case the purchaser, Capitol, assigned all its redhibition rights to Hill. Therefore, Min-ton should be liable for Hill’s attorney’s fees since Hill now stands in the purchaser’s shoes for all redhibition purposes. Minton should not, however, also be required to reimburse Hill for Capitol’s attorney’s fees. Hill’s liability for Capitol’s attorney’s fees arose out of the lease contract between Hill and Capitol. Minton was not a party to this contract and any provisions in it cannot affect his liability under the redhibition articles. To hold that Minton must reimburse Hill for the attorney’s fees Hill owes unto Capitol would, in effect, force Minton to pay the attorney’s fees of both the original purchaser and that purchaser’s assignee. The assignment of all warranty rights was valid and, from that point forward, Minton was liable only unto Hill in any warranty action. To hold Minton responsible for both Capitol’s and Hill’s attorney’s fees would double the seller’s liability for attorney’s fees as a result of an assignment which is prohibited under C.C. art. 11. This article, which does not allow two contracting parties to affect the rights of a third person, reads as follows:

“Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.
But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.”

Hill will also be allowed to recover from Minton compensation for the actual damages he suffered because of the defects in the skidders. Although the lease contract between Hill and Capitol provided for liquidated damages between those two parties for breach of the lease, this provision is not conclusive as to the actual damages suffered by Hill because of equipment failure. We disagree with that portion of the court of appeal’s order basing Hill’s damages on this contractual amount. Minton will be cast for the sum of actual damages to be proven by Hill. That amount will be determined by the trial court on remand.

Hill’s Liability to Capitol City Leasing

Hill’s liability to Capitol has been determined, to a great extent, by the provisions of the lease contract between them. This contract is set forth in pertinent part in the statement of facts. Hill will be cast to pay the liquidated damages due under the lease. The liquidated damages are computed as the amount of the accelerated rental payments minus the net proceeds from the sale of the skidders at auction. In addition, Hill will pay Capitol’s attorney’s fees in the amount specified in the lease as 20% of the liquidated damages.

Additionally, Hill will be required to reimburse Capitol for the costs of taking possession, storing, repairing and selling the equipment. He will not, however, have to pay Capitol for the costs of repairing the equipment since Capitol will not be required to pay Minton for the repairs for the following reasons. Capitol had Minton repair the equipment so that it could re-sell the equipment at auction for the highest possible price. At auction, Capitol received $8,000 for each skidder. This Court accepted the $8,000 figure to represent the amount which a reasonable buyer, who knew of the defects, would pay for a skidder. We then used this amount to determine the reduced value of each skidder in granting relief in quanti minoris. Since the skidders brought $8,000 each at auction, Minton only had to reimburse Hill $8,905 for each skidder. Had Minton not repaired the skidders prior to the sale, they would have brought less at auction. Therefore, Minton would have been required to pay more to Hill to compensate for the difference in the value of the skidders as warranted by Minton and the value of the skidders with the defects. For example, in this case, each skidder cost $16,905. Capitol re-sold each skidder for $8,000, which meant Minton only had, to reimburse Hill for $8,905 for each. However, if Capitol had sold the skidders at auction without having Minton repair them prior to sale, and they had brought only $4,000 each, Minton would have had to pay Hill $12,905 for each. Min-ton has been compensated for the value of the repair work done on the skidders because Minton will have to pay less money to Hill in the action for a reduction in price. Since they have already been compensated for the value of their repair work once in having to pay less to Hill, Minton cannot collect again for the cost of the repairs by charging them to Capitol. To allow Minton the benefit of paying a lower amount to Hill and then to receive payment for the repairs from Capitol would allow them to recover twice. The failure of the skidders to work because of the defects attributable to Minton’s work was a major factor in the present litigation. It is enough that Minton will be compensated for repairing the skid-ders for resale by paying less to Hill. He will not be allowed to make a profit on it by also charging Capitol for the repairs. Since Capitol will not be required to pay Minton for the repairs, Hill owes Capitol no money to cover the cost of repairs.

This case is remanded to the trial court to determine the amount of actual damages Hill suffered as a result of the defective equipment and, thereafter, that court shall render a judgment granting relief according to the views expressed herein.

LEMMON, J., dissents.


source: Caselaw Access Project

author: LEMMON, Justice.

license: Public Domain

text:
    UNITED STATES DAUGHTERS OF 1812—CHALMETTE CHAPTER v. LOUISIANA DEPARTMENT OF CULTURE, RECREATION AND TOURISM and the Louisiana State Museum Board, Inc.
    No. 81-C-0629.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Evelyn T. Brooks, Asst. Attys. Gen., for defendant-applicant.
    Stanley E. Loeb, Moise W. Dennery, New Orleans (amicus curiae), for plaintiff-respondent.
   LEMMON, Justice.

The issue in this case is whether plaintiff corporation, who obtained as seller in an act of sale the right to use the lower floor of a particular building for the duration of its corporate existence, loses that right by the expiration of 30 years.

In 1921 the State of Louisiana acquired from plaintiff a building in New Orleans known as the Jackson' House. As partial consideration for the sale plaintiff was given the use of the ground floor of the Jackson House for its meetings and for the exhibition of historic objects.

Plaintiff used the premises without interruption until 1935 or 1936 when the building, which had fallen into disrepair, was rebuilt. During the reconstruction the state provided plaintiff free use of another public building for its activities. When construction was complete, plaintiff reoccupied the premises and remained there until 1965 when fire hazards required the state to perform extensive renovations. Again the state provided plaintiff with free use of another building during construction.

After renovation of the Jackson House the State Museum Board notified plaintiff that its right to use the premises had prescribed and that the ground floor of the Jackson House would be returned to public use. The state did offer, however, to provide plaintiff with other free accommodations for its meetings.

Plaintiff then filed this suit, seeking a declaratory judgment recognizing its entitlement to the occupancy and use of the ground floor of the Jackson House. The state filed an exception of no cause of action, arguing that the right granted in the 1921 act of sale was a “right of use” or a “usufruct” and that, because the plaintiff is a corporation, the right in its favor had expired under C.C. Art. 612 after 30 years, that is, in 1951. The trial court maintained the state’s exception and dismissed the action.

The court of appeal reversed, holding that plaintiff is entitled to the use of the ground floor of the Jackson House subject only to the limitations and obligations imposed upon the corporation by the contract granting that right. 395 So.2d 455. The court of appeal reasoned that the act of sale did not create a usufruct, but rather a personal right governed only by the rules of contract so that the 30 year limitation of usufructs held by corporations was inapplicable. We granted certiorari. 399 So.2d 607.

In determining that the right granted by the contract was not a “use" or a “usu-fruct”, the court of appeal relied heavily upon the fact that the right did not include the entitlement to “fruits”, “profits” or any other “advantage” which might be produced by the premises nor the obligation of a usufructuary to pay taxes and repair the premises. The court also suggested that the state’s obligation to provide alternative accommodations to plaintiff in the event of the destruction of the Jackson House also characterized the right as something other than a usufruct or use.

In Lasyone v. Emerson, 220 La. 951, 57 So.2d 906 (1952), this court was faced with a similar fact situation. In that case a vendor sold an undivided one-half interest in a lot and building to a Louisiana corporation. The act of sale provided that the “[v]endee shall have the use, without rental, of the lower story of the two story brick building situated on said property, to assume the upkeep, repairs and improvements of said lower story as needed.” A later purchaser of the vendor’s undivided one-half interest sued for partition. This court held that the language in the act of sale created a usu-fruct and that the usufruct granted the corporation had terminated under C.C. Art. 612 upon the lapse of 30 years.

Although in Lasyone the contract expressly provided that the corporation was obligated to assume responsibility for upkeep and repairs, the right granted in that contract is essentially the same as the right created by the contract in the instant case. The corporation did not receive any “fruits”, “profits” or “advantages” other than the free use of the premises. The fact that the corporation agreed in the contract to assume responsibility for the upkeep and repairs of the premises does not sufficiently distinguish the right from that granted plaintiff in the instant case.

Even if the right granted in the present case does not precisely comply with all codal requirements for either a right of use or of usufruct, the parties clearly intended that the right was a real right in particular immovable property. The actual right, whatever its legal denomination, is sufficiently similar to use or usufruct that it should be governed by the codal limitations and provisions relating to such rights, applied by analogy. Compare Farrell v. Hodges Stock Yards, Inc., 343 So.2d 1364 (La.1977).

A usufruct in favor of a natural person generally terminates upon the death of the usufructuary. The underlying policy for limiting the right of a corporation to a real right such as a usufruct is to prevent a legal entity, which does not have a natural life span, from possessing rights in immovable property in perpetuity. The reason for the limitation on the term of a usufruct is explained:

“The dismembership of ownership [which occurs in a usufruct] may render great service, under certain circumstances. It however creates a state of affairs which is unfortunate. The law does not want it to continue.” 1 M. Planiol, Traité Élém-entaire de Droit Civil, § 2838 (La.St.L. Inst.Trans.1959).

The codal provision limiting usufructs in favor of corporations accords with the public policy against holding property out of commerce. See Frost-Johnson Lbr. Co. v. Sailing’s Heirs, 150 La. 756, 91 So. 207 (1922); Gueno v. Medlenka, 238 La. 1081, 117 So.2d 817 (1960). If the right of use claimed by plaintiff in this case is permitted to continue for the duration of plaintiff’s corporate existence (which may bé perpetual), then the contractual provision will effectively take the ground floor of the Jackson House out of commerce indefinitely and perhaps perpetually.

We conclude that the parties to the 1921 contract intended to grant a species of use which conferred a real right in particular immovable property similar to the right of use or usufruct and that the right granted in the contract is extinguished in the same manner as the right of use and usu-fruct. Although the parties may also have intended that the right be permanent, the law limited the duration of such rights as a matter of public policy. The right granted in the sale was therefore extinguished by the passage of 30 years.

Accordingly, the judgment of the court of appeal is reversed, and the judgment of the trial court is reinstated.

      . The pertinent part of the sale provided:
      “And as a further consideration of said sale, the Board of Curators of the State Museum hereby agrees to give to the United States Daughters of 1776 and 1812, the use of the ground floor of the premises herein conveyed, said use to continue as long as the said Association shall continue its corporate existence, and shall desire to continue to occupy the said premises, subject however, to the condition that no stoves, fires, or other elements liable to increase the fire hazard, shall be used in the said building for cooking purposes, and if the said Board of Curators shall provide a heating system, then none other shall be used for heating purposes; and the said United States Daughters of 1776 and 1812 shall put nothing in the said premises which shall increase the fire hazard; that it shall not use the said premises for other purposes than the exhibition of historic, art and literary objects and especially those pertaining to the wars of 1776 and 1812, and for its meetings, conventions and entertainments.”

      .As to use of other property during reconstruction, the sale provided:
      “It is also agreed that in the event of the destruction of the said premises by a fortuitous event, or for reconstruction, improvement or other purposes, the said Board of Curators shall afford said United States Daughters of 1776 and 1812, meeting and exhibition rooms in the State Museum of equal size and facilities; but no reconstruction or improvement, the effect of which shall be to deprive said United States Daughters of 1776 and 1812 of the permanent right of use herein given, shall be made without their consent, and in any improved or reconstructed building they shall be entitled to the use of rooms equally as suitable for their purposes as herein set forth as the ones now existing.”

      . At the time of the sale, C.C. Art. 612 limited usufructs in favor of corporations to 30 years. That provision now appears as C.C. Art. 608.

      . C.C. Art. 544 provides that fruits produced during the usufruct belong to the usufructuary; C.C. Art. 533 provides that the usufructuary is entitled to profit, utility and advantage produced; and C.C. Art. 571 imposes the obligation on the usufructuary to make needed repairs.

      . The fact that the state, in addition to granting the right to use the Jackson House, agreed to provide alternative accommodations does not change the character of the right granted. Plaintiffs personal contractual right to demand alternative lodging from the state is an ancillary right, unrelated to the right plaintiff now seeks to enforce.

      . A right of use under the present law is perhaps not automatically extinguished after 20 years. See C.C. Art. 644 (as amended in 1976). However, under the law in effect at the time of this contract a right of use was extinguished in the same manner as usufruct. See former C.C. Art. 628. When the 1976 amendments were enacted, more than 30 years had elapsed since the right was created by the contract in this case.


author: WATSON, Justice.

text:
    Theresa T. STEWART v. HOSPITALS AFFILIATES INTERNATIONAL, INC. OF BATON ROUGE d/b/a Doctors Memorial Hospital.
    No. 81-C-0680.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Richard S. Vale, Metairie, for defendant-applicant.
    Jack N. Rogers, Baton Rouge, for plaintiff-respondent.
   WATSON, Justice.

This is a workmen’s compensation case. The issue is whether plaintiff’s suit was timely filed.

Plaintiff, Theresa T. Stewart, was employed as a nurse’s aid by defendant, Hospital Affiliates International, Inc. of Baton Rouge d/b/a Doctors Memorial Hospital. She injured her back lifting a hospitalized patient in December of 1975 and had a laminectomy. She was given a leave of absence for the surgery and remained an employee of defendant until June 30, 1976. She fell at home in January of 1977 and reinjured her back. Suit was filed June 2, 1977. The trial court overruled an exception of prescription because suit was brought within two years of the accident and within one year from the time plaintiff’s employment was terminated.

The Court of Appeal affirmed the trial court, concluding that the fall at home was causally connected to the initial injury at work. Stewart v. Hospitals Affiliates Intern., Inc., 394 So.2d 647 (La.App. 1 Cir. 1980). A writ was granted to review the judgment of the Court of Appeal, 399 So.2d 597 (La., 1981).

Dr. James A. Poche, Jr., an expert in the field of neurosurgery, saw Theresa Stewart after the first accident. She had a restricted range of motion and walked with a limp favoring her left leg. After a myleogram, ruptured discs at L-4 and L-5 were partially removed. Following this surgery, Dr. Poche wrote a letter to the employer advising that Theresa Stewart could return to work if she avoided heavy lifting. Subsequently, Theresa Stewart was involved in two automobile accidents, but a myleogram after the second one showed an essentially normal back. A bath tub fall on January 17, 1977, resulted in a recurrent disc at L-4 and a new ruptured disc at L-3. Surgery was performed, but Theresa Stewart is now totally disabled.

In post-trial answers to interrogatories, Dr. Poche stated that Theresa Stewart’s disability prior to her fall in the bath tub was five percent; the fall aggravated the pre-existing injury. He did not think that the initial disability substantially contributed to the fall. However, Theresa Stewart testified that her leg gave way in the tub “like it had been doing.” (Tr. Ill) She had had weakness in her left leg from the time of her initial injury. A co-worker, Mary Hsu, said she started dragging her leg after the first accident. Apparently this weakness was never corrected. A radiologist’s report after the first surgery showed post-operative defects on the left side at L-4 and L-5. Dr. Poche’s follow-up on that surgery indicated occasional leg pain. Theresa Stewart’s testimony that she fell in the bath tub when her leg gave way is consistent with her history of pronounced weakness in the left leg from the time of the initial accident.

The initial work related injury was aggravated by the subsequent fall in the bath tub. Although Dr. Poche did not think Theresa Stewart’s disability “substantially contributed” to that fall, he was not present at the time and his statement is conjectural. Plaintiff’s positive testimony, corroborated by other evidence of continued weakness of her leg, was accepted by the trial court and the Court of Appeal. There is no clear error.

Theresa Stewart’s initial injury caused the fall in the bath tub which aggravated that injury. Absent the first work related accident, Theresa Stewart would not be totally and permanently disabled. When a work related injury is subsequently exacerbated, the aggravation is regarded as a development of the initial accident even though it occurs away from the employer’s premises after employment has terminated. Bolden v. Georgia Cas. & Sur. Co., 363 So.2d 419 (La., 1978). Theresa Stewart’s present back condition is related to her initial injury at work. Lester v. Rebel Crane & Service Co., 393 So.2d 674 (La., 1981). Suit was filed within two years of that first accident. LSA—R.S. 23:1209. Theresa Stewart’s disability did not fully develop until January of 1977. Suit was filed within one year, on June 2, 1977, and was timely.

For the foregoing reasons the judgments of the trial and appellate courts are affirmed.

AFFIRMED.


author: DIXON, Chief Justice.

text:
    Frank T. CACIOPPO and Bennie L. Ippolito v. TANGIPAHOA PARISH SCHOOL BOARD.
    NO. 81-C-0869.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      Cyrus J. Greco, Leu Anne Lester Greco, of Law Offices of Cyrus J. Greco, Baton Rouge, for plaintiff-applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., Gail K. Sheffield, Abbott J. Reeves, Asst. Dist. Attys., for defendant-respondent.
   DIXON, Chief Justice.

The United States Congress donated land to Louisiana and other states for public educational purposes. 43 U.S.C. § 871a. Known as “Sixteenth Section” lands, they were sold to parish school boards to be used for educational purposes. R.S. 41:631. It is the policy of the Tangipahoa Parish School Board to deposit Section Sixteen revenue into its general fund. The board keeps a record of how much Sixteenth Section revenue is produced by each ward, and disburses the funds exclusively to the schools within the ward that produced them.

Plaintiffs live in a ward that does not have Sixteenth Sections. They asserted this policy was contrary to R.S. 17:59, 30:154 and 41:718, and sought injunctive relief to prevent defendant from disbursing these funds. Plaintiffs alternatively prayed for a writ of mandamus directing defendant to credit all Sixteenth Section revenues to its general fund for the equal benefit of all schools within the Parish of Tangipahoa.

The trial court granted a temporary restraining order because the funds were nonrecurring revenue, and if spent they could not be replaced out of the general fund. The trial judge disagreed with the policy of the board, but dissolved the temporary restraining order, finding no violation of state law. The Court of Appeal affirmed, and held the policy to be within the board’s discretion. 396 So.2d 344 (La.App. 1st Cir. 1981).

The record consists of a stipulation of facts between the parties and testimony of the plaintiffs, whose opinions are that the schools in their ward are deteriorating. Plaintiffs have asserted the board has no reason to maintain separate accounts except to provide advantages to the schools in those wards. Although there was a possibility that separate accounts might have been kept to show that there was an equal distribution of the total income throughout the parish, the board stipulated that its policy is to spend Section Sixteen funds exclusively for schools in the wards from which they originate, and that the funds “are treated as though they constitute separate funds of the respective wards in which the particular Sixteenth Section lands generating said funds are located.” The only reasonable inference to be drawn from this policy, and the practice of maintaining separate accounts, is that the board wishes to provide an advantage to schools in wards where the Sixteenth Sections lie.

The following statutes govern the treatment of Sixteenth Section funds:

R.S. 17:59 provides:

“The general school fund of the parish school boards shall consist of the state public school fund, police jury appropriations, and such other school funds as many be provided in the constitution or other laws of the state, except such as are appropriated or designated for special purposes.
No special advantage shall be given out of the general school funds to the high schools. Buildings, additions to buildings, repairs, supplies, sites, and equipment may be provided out of the general funds. Communities desiring better facilities and longer sessions than can be provided by a distribution of the general funds giving equal session to all schools shall secure the same by voting special taxes or obtaining funds from other sources than the public or the general school funds.”

R.S. 30:154 C and D states:

“C. In all cases where sixteenth section or school indemnity lands are leased, either by the State Mineral Board or the school board, all funds realized from these leases shall be paid to the school board of the parish where the lands are situated and credited to the current-school fund of that parish, except that in the case of school indemnity lands, the lease shall be made by the State Mineral Board only and the funds credited to the parish school board entitled thereto.
D. In all cases where title to land exclusive of sixteenth section or school indemnity lands has been acquired by a school board for the benefit of a particular school or school district, funds realized from a lease of such lands either by the school board or the mineral board, shall be paid to the school board. The school board shall credit these funds to a special account and apply them to the uses of the particular school for whose benefit the grant was made.
If the particular school specified in the grant no longer exists, the funds shall be placed in the general fund of the school board.”

R.S. 41:718 A provides:

“A. In all cases of the lease of sixteenth section school lands, or of the sale of the timber thereon, the cash payment after deducting sufficient amount to cover the actual expenses incurred by the election and making the sale or lease, shall be credited to the account of the current school fund of the parish where the sixteenth section school lands are located. Notes representing deferred payments shall be placed in the hands of the parish school treasurer for collection, and when collected also credited to the current school fund of the parish, to be used for general school purposes.”

The requirements are that Sixteenth Section funds be deposited into the current school fund, and be used for general school purposes. “General school purposes” is left to the discretion of duly elected school boards, but the policy of this board to disburse Section Sixteen funds to the wards that generated them is contrary to their discretionary use. The spending is not based on needs of parish schools, or general school purposes, but is based solely on the fact the funds were generated within a certain ward. This policy is inconsistent with that of R.S. 17:59 and 41:718, requiring funds to be spent on general school purposes.

Article XII, § 15 of the Louisiana Constitution of 1921 provided that “. .. funds shall not be subdivided, apportioned or separated in any manner whatsoever, nor shall they be paid to any ward, district, or other subdivision, but such revenue shall be dedicated and used exclusively, to pay the cost of the current operation of ... schools within the parish ... as provided for by the laws of the State.” (Emphasis added). The relevant provisions of both R.S. 30:154 and R.S. 41:718 were in effect during the life of the Constitution of 1921. This constitutional provision prohibited what the Tangipa-hoa Parish School Board is now doing. It was eliminated, however, from the 1974 Constitution, and was not placed in the Revised Statutes. The statutes remained in effect, however, and no legitimate inference can be drawn that the legislative intent to prohibit favoritism in school board spending was changed by the adoption of the 1974 Constitution.

R.S. 17:59 originated as § 21 of Act 100 of 1922; it defines general school fund and prohibits special advantages to high schools. It allows communities desiring better facilities or longer sessions to secure funds for those purposes by special taxes or sources other than the general school fund. Sixteenth Section funds are part of the general school fund under 17:59, and may not be expended to provide advantages to schools in certain wards.

The policy and practice of the Tangipa-hoa Parish School Board is one of the problems the legislature intended to avoid when it required parishes to establish general school funds.

Therefore, the decisions of the lower courts are reversed. Defendant is enjoined from allocating or disbursing Section Sixteen funds exclusively to the wards or school districts in which they originated. A writ of mandamus is hereby issued directing defendant to credit all Sixteenth Section revenues to its general fund for the equal use and benefit of all schools within the Parish of Tangipahoa. All costs are to be borne by the defendant.

WATSON, J., dissents.


author: MARCUS, Justice.

text:
    A.I.U. INSURANCE COMPANY v. F. J. ROBERTS, Jr., et ux. F. J. ROBERTS, Jr., et ux. v. Neil B. BURRIS, et al.
    No. 81-C-1001.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      Stephen K. Peters, Baton Rouge, for defendant-applicant.
    James E. Moore, of Franklin, Moore & Walsh, J. Byron Stringer, Baton Rouge, for plaintiff-respondent.
   MARCUS, Justice.

F. J. Roberts, Jr. and his wife, Margaret B. Roberts filed suit against Neil B. Burris and his employer, Pat’s Furniture Showroom of New Orleans, Inc., seeking damages sustained by them as a result of an accident on July 13, 1978 between an automobile driven by Mrs. Roberts and owned by her husband and an automobile driven by Burris allegedly in the course and scope of his employment. American International Insurance Company (A.I.U.), plaintiffs’ uninsured motorist carrier, was added as a party defendant by an amended and supplemental petition. It was alleged that Burris was uninsured at the time of the accident. A.I.U. answered generally denying the allegations of plaintiffs’ petition and amended petition and third partied Burris seeking indemnity for any amounts paid by A.I.U. to plaintiffs. Plaintiffs’ demands against Pat’s Furniture Showroom were dismissed in a summary judgment.

Subsequently, A.I.U. filed a petition for declaratory judgment against Mr. and Mrs. Roberts seeking to limit its uninsured motorist coverage to $5,000. Upon motion of A.I.U., the two suits were consolidated for trial.

After trial on the merits, the judge, finding the accident was caused solely by the negligence of Burris, rendered judgment in favor of Mr. Roberts and against Burris for $1,825 for property damage and $943.39 for medical expenses and in favor of Mrs. Roberts and against Burris and A.I.U. for $14,-000. The liability of A.I.U. was limited to $5,000. Judgment was rendered on the third party demand in favor of A.I.U. and against Burris for $5,000. All awards included legal interest from date of judicial demand until paid and costs. In a separate judgment, the liability of A.I.U. was limited to $5,000 under the uninsured motorist coverage applicable to Mrs. Roberts. Mrs. Roberts appealed from both judgments. The only issue on appeal was the limitation of A.I.U.’s liability to $5,000. The court of appeal affirmed the judgments of the district court. Upon application of Mrs. Roberts, we granted certiorari to review the correctness of that decision.

The sole issue presented for our resolution is whether the liability of A.I.U. should be limited to $5,000 under the uninsured motorist coverage applicable to Mrs. Roberts.

Under Louisiana law, uninsured motorist coverage is provided for by statute and embodies a strong public policy. Therefore, the question of uninsured motorist coverage must be determined in light of La.R.S. 22:1406. This statute has been amended several times with regard to the right to reject coverage or to select lower limits and the form and effect of such rejection or selection.

By Act 137 of 1972, effective January 1, 1973, the legislature mandated that all automobile liability insurance policies delivered or issued for delivery in this state provide uninsured motorist coverage in not less than the limits described in the Motor Vehicle Safety Responsibility Law unless “any insured named in the policy shall reject the coverage.” The statute did not specify the method to be used in rejecting coverage.

The extent of coverage was further provided for in Act 154 of 1974, effective July 31, 1974. This statute required uninsured motorist coverage in not less than the limits of bodily injury liability provided by the policy. Such coverage, however, was not required “where any insured named in the policy shall reject the coverage or select lower limits.” Once again, the statute remained silent as to the mode by which coverage was rejected or lower limits were selected.

Act 494 of 1975, effective September 12, 1975, appeared to create some confusion in the law. The same coverage provisions were retained but such coverage was not required to be “provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.” Thus, once a valid rejection of coverage or selection of lower limits was made, such rejection or selection was applicable to subsequent renewals. Some confusion may have been created when this version of the statute was mistakenly read as requiring a written rejection or selection. Landry v. Government Employees Insurance Co., 390 So.2d 1385 (La.App.3d Cir. 1980); Myers v. Thibeaux, 365 So.2d 266 (La.App.3d Cir. 1978).

Act 438 of 1977, effective September 9, 1977, attempted to clarify the law with respect to the form of rejection or selection of lower limits. Uninsured motorist coverage as previously mandated was required unless the insured “shall reject in writing the coverage or selects lower limits.” Furthermore, the rejection of such coverage or selection of lower limits was presumed to be a part of the policy “irrespective of whether physically attached thereto.” Thus, for the first time, the statute contained a requirement that rejection of coverage or selection of lower limits be in writing.

In the instant case, A.I.U. originally issued an automobile liability insurance policy to Mr. Roberts on June 6, 1974, with bodily injury liability coverage of $25,000 per person and uninsured motorist coverage of $5,000 per person. On July 31, 1974, the uninsured motorist coverage was increased to the same limits as the bodily injury liability coverage by operation of Act 154 of 1974. uninsured motorist coverage was dropped as per oral request of Mr. Roberts in December of 1974. In January of 1975, Mr. Roberts orally requested that the uninsured motorist coverage be reinstated in the amount of $5,000 per person. Mr. Roberts continuously renewed the policy at six-month intervals until the accident of July 13, 1978.

A.I.U. contends that at the time of Mr. Roberts’ selection of $5,000 uninsured motorist coverage in January of 1975, the law did not require that rejection of coverage or selection of lower limits be in writing. A.I.U. argues that the oral request for lower limits constituted a valid selection and was applicable to subsequent renewals. Thus, when the policy in effect on the date of the accident was last renewed on June 6, 1978, the lower limits originally selected by Mr. Roberts automatically applied. We do not agree.

Uninsured motorist coverage is to be determined not only by the provisions of the contract but also by applicable statutes. In the absence of a specific rule, general insurance law controls. While it is true that prior to 1977, La.R.S. 22:1406 did not require selection of lower limits to be in writing, La.R.S. 22:628 then provided:

No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance.

In determining the applicability of La.R.S. 22:628, the provisions of La.R.S. 22:1406 must be examined more closely. La.R.S. 22:1406 mandates the inclusion of uninsured motorist coverage in any automobile liability policy delivered or issued for delivery in this state. Coverage is required in limits not less than the limits of bodily injury liability provided in the policy unless the insured selects lower limits. It is of no moment that the policy in the instant case provided lower limits since the coverage was read into the policy by the terms of the statute. Since selection of lower limits conflicted with the coverage written into the policy law, such selection was required to be in writing and attached to the policy. The oral waiver of uninsured motorist coverage was therefore invalid as being in contravention of La.R.S. 22:628 notwithstanding the fact that the version of La.R.S. 22:1406 in effect at the time did not contain a writing requirement. Ewing v. Sanson, 394 So.2d 849 (La.App.3d Cir. 1981); Landry v. Government Employees Insurance Co., supra; LeBoyd v. Louisiana Transit Co., 375 So.2d 749 (La.App. 4th Cir. 1979); Walker v. Coleman, 367 So.2d 395 (La.App.2d Cir. 1979), writ denied, 369 So.2d 1365. Clearly, prior to September 9, 1977, the effective date of Act 438 of 1977, any selection of lower limits, to be valid, had to be in writing and attached to the policy.

In the instant case, there was never a written selection of lower limits. Thus, Mr. Roberts’ oral request for lower limits in January 1975 was ineffective and not applicable to subsequent renewals. Accordingly, plaintiff is entitled to uninsured motorist coverage in an amount not less than the limits of bodily injury liability of $25,000 provided in the policy. The courts below erred in limiting A.I.U.’s liability to $5,000. We must reverse.

In the alternative, plaintiff contends that under the authority of La.R.S. 22:1406{D)(l)(c), she is entitled to stacked coverage of $10,000 over the primary coverage awarded. Since we find that plaintiff is entitled to $25,000 uninsured motorist coverage under the A.I.U. policy, we do not reach this issue.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed insofar as it limits the liability of American International Insurance Company to $5,000 and amended to permit third party plaintiff, American International Insurance Company, to recover against Neil B. Burris all sums paid by said third party plaintiff to Margaret B. Roberts; otherwise, it is affirmed in all other respects.

      . 395 So.2d 375 (La.App. 1st Cir. 1981).

      . 399 So.2d 620 (La.1981).

      . Reference to “uninsured motorist coverage” in this opinion should be deemed to read: “uninsured or underinsured motorist coverage.”

      . Act 137 of 1972 amended and reenacted La. R.S. 22:1406(D)(1) to provide:
      No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.

      . Act 154 of 1974 amended and reenacted La. R.S. 22:1406(D)(1) to read as follows:
      No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.

      . Act 494 of 1975 amended and reenacted La. R.S. 22:1406(D) to read as follows:
      The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      (l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.

      .Act 438 of 1977 amended and reenacted La. R.S. 22:I406(D)(l)(a) to read as follows:
      The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      (l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage’ or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.


text:
    STATE of Louisiana v. Jon D. JACKSON.
    No. 81-KA-1121.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty.Gen., Barbara Rutledge, Asst.Atty.Gen., Ossie Brown, Dist.Atty., Kay Kirkpatrick, Wiley Dial, Asst.Dist.Attys., for plaintiffs-appellants.
    Frank J. Gremillion, Baton Rouge, for defendant-appellee.
   MARCUS, Justice.

Jon D. Jackson was charged by bill of information with having negligently failed to maintain reasonable and proper control of his vehicle while operating on a public road in violation of La.R.S. 32:58. On the day of trial but prior to commencement thereof, defendant made an oral motion to quash the information on the ground that La.R.S. 32:58 was unconstitutionally vague. The trial judge took the motion under advisement and proceeded to trial. After a trial without a jury, defendant was found guilty as charged. Sentencing was deferred until a later date to permit the filing of a written motion to quash and a hearing thereon. After a hearing, the trial judge, finding La.R.S. 32:58 unconstitutionally vague, granted the motion to quash and set aside the conviction. The state has appealed that ruling to this court under the authority of La.Const. art. 5, § 5(D).

The sole issue presented for our consideration is whether La.R.S. 32:58 is unconstitutionally vague.

Under article I, section 2 of the Louisiana Constitution of 1974 and the fourteenth amendment to the United States Constitution, words and phrases used in statutes must not be so vague and indefinite that any penalty prescribed for their violation would constitute a taking of liberty or property without due process of law. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); Connick v. Lucky Pierre’s, 331 So.2d 431 (La. 1976). This constitutional guarantee requires that penal statutes and ordinances describe the unlawful conduct with sufficient particularity and clarity that ordinary persons of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. Embodied in this concept is the requirement of fair notice of the proscribed conduct.

La.R.S. 32:58 provides:

It shall be unlawful for the driver of any vehicle to negligently fail to maintain reasonable and proper control of said vehicle while operating the vehicle on the public roads of this state.

The attack of vagueness is directed at the words “reasonable” and “proper” in the above statute. We agree that such words, when considered in the abstract, are vague and indefinite. No one could be expected to know what is reasonable and proper without regard to a particular type of conduct. La.R.S. 32:58 makes it unlawful for a driver of a vehicle to negligently fail to maintain reasonable and proper control of his vehicle while operating it on a public road. The words “reasonable” and “proper” must be considered with the particular conduct which they are used to describe.

The trial judge stated that our decision in State v. Dousay, 378 So.2d 414 (La.1979), compelled his finding that the statute was unconstitutional. In Dousay, we were confronted with a constitutional attack on section 10:22 of the sanitary code on the ground of vagueness. That section required every person with authority over and control of the maintenance or operation of a sewage treatment plant or sewage disposal system to take all useful and reasonable measures and precautions to secure and ensure the proper operation and maintenance of such systems. We held that even if we limited our evaluation of the definiteness of the words “usual,” “reasonable” and “proper” to the question of whether those within the reach of this regulation (ordinary reasonably intelligent operators of sewage treatment plants or disposal systems) can discern the meaning of these words and conform their conduct thereto, these words were so vague and indefinite that these businessmen would be forced to guess their meanings. Accordingly, we found section 10:22 of the sanitary code to be unconstitutionally vague.

We did not hold in Dousay that words such as “reasonable” and “proper,” themselves, were impermissibly vague. Nor did we say that these words could never be used in a statute. We simply held that even ordinary reasonably intelligent operators of sewage treatment plants or disposal systems could not be expected to know what is usual and reasonable to ensure the proper operation of such systems. In the instant case, the words “reasonable” and “proper” are used to describe the conduct of controlling a vehicle while operating it on a public road. Clearly, a person of ordinary reasonable intelligence can be expected to know what is reasonable and proper in the control of his vehicle while operating it on a public road and conforming his conduct thereto. The words “reasonable” and “proper” are not vague when considered with the conduct they are used to describe. Hence, the statute provides fair notice of the prohibited conduct. Accordingly, La.R.S. 32:58 is not unconstitutionally vague. The trial judge erred in holding otherwise. We must reverse.

DECREE

For the reasons assigned, the rulings of the trial court granting the motion to quash and setting aside the conviction are reversed and the case is remanded to the trial court for further proceedings according to law.

DIXON, C. J., dissents.

       Judges Grover L. Covington, Luther F. Cole and J. Louis Watkins, Jr. of the Court of Appeal, First Circuit, participated in this decision as associated justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.


author:
WATSON, Justice.
     LEMMON, Justice,

text:
    STATE of Louisiana v. Corbie Lynn WILLIAMS.
    No. 81-K-1124.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      Daryl Gold, Leesville, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William E. Til-ley, Dist. Atty., Mark H. Kramar, Asst. Dist. Atty., for plaintiff-respondent.
   WATSON, Justice.

Defendant, Corbie Lynn Williams, was convicted of reckless operation of a vehicle and resisting an officer, in violation of LSA-R.S. 14:99 and LSA-R.S. 14:108. He was given two concurrent ninety day sentences plus a fine of $350 or an additional ninety days. A writ was granted to consider defendant’s contention that he was denied his right to trial by jury. 400 So.2d 906 (La.). Two interrelated issues are posed: Was the defendant entitled to trial by jury and, if so, did he waive that right?

In the early morning hours, Williams was driving a group of friends to Leesville, Louisiana, when state trooper William Withers attempted to stop the car for speeding. After a high-speed chase, Williams was stopped and charged with three offenses: speeding, LSA-R.S. 32:61; reckless operation of a vehicle, LSA-R.S. 14:99; and resisting an officer, LSA-R.S. 14:108. Three bills of information were filed. Williams, represented by counsel, pleaded guilty to the speeding charge prior to trial. Defendant’s counsel did not object to consolidation of the remaining charges for trial, and a consolidated trial was held.

At no time was trial by jury mentioned. There was no request for trial by jury nor was the possibility of trial by jury alluded to by the court or the prosecution.

When two or more charges are joined for trial, the aggregate punishment which may be imposed determines whether the right to trial by jury exists. If the total potential punishment exceeds six months imprisonment, an accused is entitled to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970); Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974). LSA-Const. Art. 1, Sect. 17; State v. McCarroll, 337 So.2d 475 (La., 1976).

Williams was charged with separate offenses in separate bills of information. Two or more bills of information may be consolidated if the offenses could have been joined in a single bill. LSA-C.Cr.P. art. 706. When consolidated, the law considers all charges as if they were originally joined in a single bill. When charges are joined the total possible punishment is the sum of the maximum possible for each. The maximum possible imprisonment for the offense of reckless operation of a vehicle is ninety days; for the offense of resisting an officer, six months. Since the total possible punishment exceeded six months imprisonment, Williams was entitled to trial by jury.

One who is entitled to trial by jury can waive that right. However, jury trial waiver is not presumed.

“Although the right to a jury trial may be waived in a non-capital case, Art. 1, Sect. 17 requires that the waiver be ‘knowingly and intelligently’ made. Therefore, we must indulge every reasonable presumption against waiver of this fundamental right.” State v. McCarroll, supra, 337 So.2d at 480.

See also State v. Muller, 351 So.2d 143 (La., 1977).

Nothing in this record shows that Williams knowingly and intelligently waived his right to trial by jury. There is no indication that Williams was informed by the court or counsel of his right and no suggestion of waiver. The presumption against waiver has not been rebutted.

For the foregoing reasons, the convictions and sentences are reversed and the case is remanded for a new trial.

REVERSED AND REMANDED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

This is a direct appeal in which defendant contends he was denied his constitutional right to a jury trial. The minutes are silent as to whether defendant waived that right. However, defendant, assisted by counsel, proceeded into a bench trial without objection.

Since the defendant did not object to the consolidation of the two bills of information for trial in a single proceeding, the issue was not preserved for review on direct appeal, and defendant should be relegated to a post-conviction attack.

In a post-conviction attack defendant would have the burden of proving he was unaware of his rights, since only then does the question of waiver have constitutional dimension. Although the omission from the minutes would be favorable evidence for the defense, the prosecution should have the opportunity to show that defendant, through the court or counsel or some other source, was aware of his jury trial right and waived it by proceeding without objection.

I would affirm the conviction.

       Judge Edmond L. Guidry and G. William Swift of the Court of Appeal, Third Circuit, and Judge Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson and Lemmon.

      . Defendant alleged other errors which are pre-termitted.

      . There is no complaint about the guilty plea on the speeding charge.

      . Cf. State v. Jones, 396 So.2d 1272 (La., 1981) which reversed defendant’s convictions and sentences where the state was allowed to sever properly joined offenses solely to deny defendant a jury trial.

      . LSA-Const. 1974, Art. 1, Sect. 17:
      “.. . Except in capital cases, a defendant may knowingly and intelligently waive his right to trial by jury.”


author: SWIFT, Justice Ad Hoc.

text:
    STATE of Louisiana v. John Reed CAMPBELL.
    No. 81-K-1212.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Bridget Bane, Louise Korns, Asst. Dist. Attys., for plaintiff-relator.
    Julian R. Murray, Jr., New Orleans, for defendant-respondent.
   SWIFT, Justice Ad Hoc.

John Reed Campbell was charged with conspiracy to commit aggravated crime against nature between September 24,1974, and September 10, 1976. La.R.S. 14:26 and 89.1. The trial court sustained the defendant’s motion to quash the bill of information on the basis of prescription, i. e., failure to commence his trial without two years from when he was joined in the bill. La.Cr. C.P. Art. 578. The state has assigned this ruling as error and the case is now before this court on a writ of certiorari.

On September 10, 1976, the defendant’s residence at 7936 West Laverne Street in New Orleans was searched by the city police pursuant to a search warrant. They seized pictures, slides, magazines, books and letters apparently pertaining to sex acts between young boys and adult males. The defendant was not arrested at this time although he was at home during the search. He left New Orleans two days later and except for two brief visits did not return to Louisiana for over three and one-half years. Wanted reports were filed by the New Orleans Police Department on September 14, 1976, and September 21, 1976. On September 24,1976, Campbell’s name was placed in the department’s computer along with his wanted status. A warrant for his arrest was issued on November 8, 1976. Defendant was formally charged in a bill of information on July 13,1977, but was not located until April 23, 1980, when he was arrested in Yuma, Arizona.

The state contends that prescription was interrupted under La.C.Cr.P. Art. 579(1).

On the contrary, the defendant maintains that he had no knowledge there were charges against him or that he was wanted therefor until shortly before his arrest in 1980. Further, he contends that his absence from this state was for business purposes, not to avoid detection, apprehension or prosecution so as to interrupt the two year prescription.

At the motion hearing the defendant testified he went to the district attorney’s office after his home was searched and was told that he was not wanted for anything by the police. Thereafter, he left the city to fulfill two out-of-town commitments that he had made months in advance. He said he spent the rest of his absence painting in various states to enhance his national reputation as an artist. The defendant denied receiving any information during his absence indicating that he was wanted by the authorities for a criminal charge until two or three days before his arrest. However, he admitted his tenants told him in telephone conversations that the police wished to question him, but defendant said he thought this concerned charges against other persons.

The defendant’s testimony in this respect was corroborated by Glen Morgan, one of the two attorneys he had consulted at this time about this matter. However, Mr. Morgan acknowledged that he was told by Campbell that his first lawyer had informed him he was wanted by the police.

Detective Mason Spong, one of the officers assigned to investigate what was referred to as the “Boy Scout Cases” wherein several adults were charged with crimes against nature involving some young scouts, testified that from September, 1976 to April, 1980, he and other detectives attempted to locate the defendant. They contacted Campbell’s tenants, friends and his attorney and left word that he was wanted by the police. However, these efforts were fruitless.

Mrs. June Weisheit, a tenant of Campbell’s, testified that the defendant had been away on business before, but usually for only a couple of weeks at a time. She also stated that she had telephone conversations with Campbell during his lengthy absence and she informed him in these calls that he was wanted by the police.

When asked about this at the hearing the defendant testified:

Q. How about your tenants? Did either one of them ever give you any indication that the police wanted you for the purposes of talking with you?
A. That’s the impression I got.

Campbell also admitted that he “got that impression” from another detective, Ronald Canatella. However, Canatella testified he told attorney Morgan that Campbell was wanted by the police and he would personally handle his arrest if he gave himself up. He stated he also said this to the defendant when the latter phoned in March, 1977, but Campbell failed to surrender.

During his testimony the defendant was asked the following by the prosecutor:

Q. Did Mr. Canatella ever tell you that if you gave information on Mr. (Dale) Edwards that he would have the charges dropped against you?
A. No, Ms. Bane, he didn’t say anything like that.
Q. Did you ever write to anyone and tell them that he had said that to you?
A. Not at all.

Despite this testimony, Campbell identified a letter that he wrote to a Mr. Pohili-berto in March of 1979 “about comming (sic) to N. 0. to take care of the problem.” It states in part the following:

I talked to Ronald Canatella, a detective, who said that all charges would be dropped if I would help him locate Dale Edwards.”

Other remarks in the same letter corroborated the state’s assertion that defendant knew of the charges pending against him. For instance, with reference to the activities of the police in the beginning Campbell wrote:

“This was before any charge was made.” and:

“What I think has happened, that the police want me to look guilty because they had a fake search warrant and had to falsely charge me to protect themselves and now because Connick told me to come in and see him, he is or may be angry at me.”

On the second page of this letter Campbell added:

“If this (one of his plans) fails, then I would want all my friends to take the matter to the D. A.; that is, all the art students, friends, would go to see Harry Connick, read my story, testimony to him, ask him to drop these false charges (conspiracy to commit a crime).”

Also, in the letter of March, 1979, the defendant instructed Mr. Philiberto to use the name “Larry Rogers” when referring to him. Obviously, this was a ruse to avoid identification and detection. Before the letter was produced Campbell testified that he had never used an alias except in one real estate transaction.

The defendant wrote another letter to a man named “Richard” on June 12, 1979, asking for advice and help in solving his “problem.” He told the addressee that he was afraid to call, because he first wanted to tell him how to talk over the telephone. He requested Richard to address him as “Jerry Rogers” in future telephone conversations. In this letter, among other things, the defendant inquired about hiring another lawyer, talking to the district attorney again and an attempt by a friend to obtain amnesty for him from the governor. Of great significance to this case is the following:

“I want your opinion as to what to do? Give me your thoughts on the following:
Stall off for more time (Hoping the statues (sic) of limitations will help me.”

In sustaining the motion to quash the trial judge found that the defendant possibly anticipated he might become involved in the “Boyscout imbroglio”, but the state failed to establish he knew charges were pending against him and his absence from the state was caused by this rather than legitimate business purposes. We reverse.

The burden of proving that the defendant’s purpose in remaining outside the state was to avoid detection, apprehension, or prosecution and thus interrupted the two year prescription as to prosecution rests, of course, on the state. In State v. Gendusa, 193 La. 59, 190 So. 332 (La.1939), such burden was said to require proof beyond a reasonable doubt. However, later cases indicate the burden is simply a “heavy” one in which the record must “clearly” establish that the purpose of the defendant’s absence was to avoid detection, apprehension or prosecution. State v. Driever, 347 So.2d 1132 (La.1977); State v. Guidry, 395 So.2d 764 (La.1981); State v. Wicker, 391 So.2d 845 (La.1980). Be that as it may, we are convinced in this case that under either test the state has established that prescription was interrupted.

We are unable to agree with defense counsel’s contention that because interruption of prescription involves a question of fact this court is prohibited by Article 5, § 5(C), of the Louisiana Constitution of 1974 from reviewing the trial court’s decision thereon. In State v. Guilot, 200 La. 935, 9 So.2d 235 (La.1942), this court stated:

“Although the plea of prescription presented in a criminal case is a question of fact, it is not a question of fact relating to the guilt or innocence of the accused. The decision of the trial judge as to whether the offense charged is prescribed is reviewable by this court on the same facts upon which the decision was based.”

However, it is quite clear that in reviewing a trial judge’s ruling on a preliminary motion this court attaches great weight to his factual determinations and will not disturb them unless they are clearly erroneous. State v. Holley, 362 So.2d 1089 (La.1978).

Although the determination of this defendant’s purpose in remaining out of the state involved conflicting testimony from him and his former attorney as opposed to the state’s witnesses, Campbell’s own letters clearly and unquestionably refute his assertion that he was unaware of any pending criminal charges against him while he was out of the state. On the contrary, he mentioned therein the “scout scandal”; that he had a “problem”; that certain events occurred before and after a “charge” was filed; that he was told by Detective Canatella that “all charges would be dropped” if he helped locate a missing witness; that he was in need of another lawyer; that he wanted his friends to ask the district attorney “to drop these false charges (conspiracy to commit a crime)”; that his correspondents should use aliases in communicating with him about the matter; that he was interested in a friend’s efforts to obtain amnesty from the governor; and that he needed an opinion as to whether he should “[s]tall off for more time (Hoping the statues (sic) of ¡imitations ” would help him. While it is obvious from the letters that the defendant had no intention of returning to New Orleans and facing the authorities while the charges were pending, there is no mention therein of any business in which he was engaged that caused him to remain out of the state.

It is clear to us from this, as well as other circumstances disclosed by the record, that the trial judge’s finding was clearly wrong and that defendant Campbell did in fact leave and remain outside the state for the purpose of avoiding “detection, apprehension, or prosecution,” either of which would cause the two year prescription applicable to prosecution to be interrupted under La.C. Cr.P. Art. 579(1).

Accordingly, the judgment of the trial court is set aside, the motion to quash the bill of information if overruled and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

      Judges E. L. Guidry, Jr. and G. William Swift, Jr. of the Court of Appeals, Third Circuit, and Judge Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson and Harry T. Lemmon.

      . The period of limitation established by Article 578 shall be interrupted if:
      (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state;

      . Neither of whom now represent the defendant.

      . All emphasis in the quotations have been added by this court.


author: KLEES, Justice Ad Hoc .

text:
    STATE of Louisiana v. James MARTIN.
    No. 81-K-1225.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Dist. Atty., R. Harmon Drew, Jr., Asst. Dist. Atty., for plaintiff-relator.
    John W. Montgomery, Minden, for defendant-respondent.
   KLEES, Justice Ad Hoc .

On December 13, 1980, Gloria Martin was shot to death in a domestic dispute with her husband, defendant, James Martin. The defendant received a gunshot wound to the head. Police Investigators at the scene found three pistols belonging either to the decedent or the defendant. The defendant made several inculpatory statements; he admitted shooting his wife and claimed that his wound was self-inflicted.

On January 5, 1981, the defendant was indicted for the second degree murder of his wife, a violation of La.R.S. 14:30.1. He was arraigned and pled not guilty on January 12, 1981. On March 6, the state filed a motion alleging that a bullet imbedded in the defendant’s head was probative in the prosecution of this matter, as an analysis of the bullet is essential to establishing its course among the three pistols found at the scene, and requested an order requiring the defendant to submit to a medical examination to determine the feasibility of the surgical removal of this evidence. A hearing was conducted on this motion on April 6, 1981. At the hearing, the state requested the appointment of a three-doctor panel charged to examine the defendant and report on the feasibility of the desired operation. At the hearing the state presented the testimony of Dr. George M. McCormick, III, forensic pathologist and coroner of Bossier Parish and special deputy coroner of Webster Parish. Dr. McCormick testified that he examined the defendant and made x-rays of his person. He found the bullet located between the scalp and defendant’s skull and noted that it could be moved about with pressure from a finger and that to do so did not appear to cause the defendant any pain. He concluded by stating that the bullet could be removed in a minor surgical procedure, under local anesthetic, and with minimal risk to the defendant. The trial court denied the state’s request. The matter is now before this Court on a writ by the state seeking review of the trial court’s rejection of the three-doctor panel. 401 So.2d 359.

ARGUMENT

At the hearing and in brief the state argued that a three-doctor panel was the necessary first step in a procedure designed to best guarantee a proper balance of the defendant’s interest in his privacy and health and the state’s interest in securing probative evidence, citing for guidance United States v. Crowder, 543 F.2d 312 (D.C.Cir.1976). The trial court rejected this proposal stating:

“There’s no Louisiana cases that the computer could find or that the researchers could find in this connection. I do not want to have this parish go to the expense of me appointing and having medical experts testify in this matter when I am not firmly convinced and have doubts in my mind that this procedure requested is authorized, therefore, I’m going to deny the motion of the State.”

As the trial judge correctly noted, this Court has yet to consider whether and under what circumstances an accused can be forced to submit to a surgical procedure for the recovery of evidence. Consequently, the jurisprudence of the several state and federal courts may be helpful to this inquiry.

The principal decision by the Supreme Court on the subject of body-intrusion searches is Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In that case the defendant was arrested in a hospital while receiving treatment for injuries received in an automobile accident. The police, without a search warrant or a court order, directed the physician at the hospital to withdraw a sample of blood from the defendant’s body. The sample was analyzed and found to contain evidence of alcohol intoxication.

The Supreme Court rejected defendant’s claim that his rights to due process and to the privilege against self-incrimination had been violated. It then considered his claim that the body-intrusion violated his fourth amendment right against unreasonable search and seizure. In overruling this contention, the Court stated, “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” 384 U.S. at 768, 86 S.Ct. 1834. The Court noted that the police might reasonably believe an immediate seizure was necessary to preserve evidence which the defendant’s body might metabolize in the time needed to get a warrant. The Court then observed that the extraction of the blood sample was done according to medically acceptable procedures involving minimal risk to the defendant.

The Court summarized its holding in these words:

“We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. 384 U.S. at 772, 86 S.Ct. at 1836.

Since Schmerber, several state courts have considered whether and when body-intrusion searches are prohibited by the Fourth Amendment. Most have adopted a case-by-case approach in which the legality of the search turns on its reasonableness under the circumstances. See, e. g., State v. Overstreet, 551 S.W.2d 621 (Mo.1977) (operation unreasonable where insufficient proof that intrusion into buttocks would be harmless and where defendant not afforded (1) an adversary hearing on-the need for, and for reasonableness, of intrusion and (2) an opportunity to appeal the order to operate prior to the intrusion); Bowden v. State, 256 Ark. 820, 510 S.W.2d 879 (1974) (search warrant authorizing removal of a bullet from the accused’s spinal canal unreasonable where operation would result in a major intrusion involving trauma, pain, a risk of serious complications and the possible loss of life); Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972), (trial court order to remove bullet from subcutaneous fat of the right side of chest not unreasonable where procedure required only local anesthetic and presented “no risk” to the defendant.) But see, Adams v. State, 260 Ind. 663, 299 N.E.2d 834 (1973) cert. denied sub nom. Indiana v. Adams, 415 U.S. 935, 94 S.Ct. 1452, 39 L.Ed.2d 494 (1974) (court found that court ordered surgical removal of bullet fragments violated the Fourth Amendment and adopted a rule declaring all such procedures as per se violative of the Fourth Amendment.)

In United States v. Crowder, 543 F.2d 312 (D.C.Cir.1976) cert. denied, 429 U.S. 1062, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977) the Circuit Court affirmed a surgical search procedure in which a bullet was removed from the defendant’s forearm. The bullet was “lying superficially beneath the skin”, and the operation was judged to entail no risk of harm or injury. In finding the procedure reasonable and justified under the circumstances, the Court noted that it considered the following salient factors: (1) the evidence sought was relevant, could have been obtained in no other way, and there was probable cause to believe that the operation would produce it; (2) the operation was minor, was performed by a skilled surgeon, and every possible precaution was taken to guard against any surgical complications, so that the risk of permanent injury was minimal; (3) before the operation was performed the trial court held an adversary hearing at which the defendant appeared with counsel, and (4) thereafter, and before the operation was performed, the defendant was afforded an opportunity for appellate review.

We find that the procedure proposed by the state in this case is reasonable and likely to afford the defendant protection of his rights and health. In our opinion the prosecuting authorities have made a well reasoned and commendable effort to establish a basis for searches of this kind. The trial court’s ruling while reflecting caution commendable in such a sensitive area, is in error.

For the reasons assigned, this matter is remanded to the trial court for further proceedings consistent with this decision.

       Judges E. L. Guidry, Jr., and G. William Swift, Jr., of the Court of Appeal, Third Circuit, and Judge Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson, and Harry T. Lemmon.


text:
    J. Douglas STEPHENSON v. Linda Carr STEPHENSON.
    No. 81-C-1459.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    John A. Lieux, Gonzales, for defendant-applicant.
    Ralph D. Hillman, Thibodaux, for plaintiff-respondent.
   BLANCHE, Justice.

This is a dispute over child custody. On November 30,1979 Douglas Stephenson was granted a divorce from Linda Stephenson on the ground of adultery. Temporary custody of the couple’s minor daughter was awarded to Mrs. Stephenson. A separate hearing was held on January 15, 1980 and Mrs. Stephenson was awarded permanent custody. Douglas Stephenson appealed the custody award. The First Circuit Court of Appeal reversed the ruling of the trial court and granted permanent custody of the child to Mr. Stephenson. 398 So.2d 48. Linda Stephenson now challenges the judgment of the court of appeal.

Douglas and Linda Stephenson were married in Indiana on December 10, 1973. The couple moved to Louisiana in 1974 and eventually settled in Prairieville. One child, Candice Ann, was born of the marriage. Candice was 4 years old at the time trial of this matter was originally held.

In January of 1979 Douglas Stephenson moved to Thibodeaux, Louisiana, taking the family trailer home with him. Mrs. Stephenson remained in Prairieville with Candice Ann. Problems in the Stephenson marriage began to appear early in 1977. Mrs. Stephenson committed several acts of adultery while still living with her husband. Mr. Stephenson admitted at least one act of adultery committed at a “bump and grind party” held at their home some years earlier. At trial, each spouse accused the other of having refused marital relations during the last two years of the marriage.

Some months after the couple had separated in fact in 1979, Mrs. Stephenson began dating Eddie Gunby. A short while later, she and Candice Ann moved into Mr. Gunby’s trailer home. When he learned that his wife and child had been living with Mr. Gunby, Mr. Stephenson filed suit for an immediate divorce and sought permanent custody of his young daughter.

A judgment of divorce was granted after trial in which Mrs. Stephenson freely admitted her adultery with Mr. Gunby. Eddie Gunby, also married and in the process of obtaining a divorce at the time of trial, was called to testify. Both he and Linda Stephenson testified that they planned to marry as soon as both divorces became final. Other testimony at trial dealt with Linda Stephenson’s fitness for custody of Candice Ann. All witnesses, including Douglas Stephenson, testified that Mrs..Stephenson had provided proper care for her daughter, assuming full financial responsibility for Candice from the time the couple separated in fact in January, 1979. For his part, Douglas Stephenson acknowledged that he had provided almost no support for his child during the time the couple were separated.

At the time of trial, Mrs. Stephenson was still residing with Eddie Gunby. In his reasons for judgment at the conclusion of the divorce temporary custody proceeding, the trial judge stated:

“There is no doubt about the wife’s adultry [sic] which was freely admitted. It is also apparent that the Court cannot permit the custody to remain in the wife under the present circumstances. However, the Court feels that it would be to the best interest and welfare of the child if the custody could be continued in the mother.
“Therefore, the Court will continue the temporary custody in the mother but will award the permanent custody to the father unless within the next six weeks she either establishes a domicile separate and apart from the man with whom she is presently living and conduct herself in a manner which is appropriate for the rearing of a small child or marries the man in question.”

A separate hearing was held on January 15, 1980 to determine the issue of permanent custody. At this hearing, Linda Stephenson testified that Mr. Gunby moved out of the trailer home the couple had been sharing shortly after the initial trial. She also testified that she and Eddie Gunby planned to marry that afternoon as Mr. Gunby’s divorce was to become final that day. Blood tests taken by Mrs. Stephenson and Mr. Gunby in preparation for their marriage were introduced in evidence to corroborate her testimony. At the conclusion of the hearing, the trial court took the matter under advisement. Three days later, the trial court checked the courthouse records and ascertained that Linda Stephenson and Eddie Gunby had, in fact, married.

On February 28, the trial court signed judgment granting permanent custody of Candice to Linda Stephenson. In his written reasons for judgment, the trial judge specifically found that it would be in the best interest of the minor child that custody be given to her mother.

“[T]he Court has reached the conclusion that the welfare of the child will best be served by continuing custody in the mother. Although not morally perfect the evidence preponderates in favor of the conclusion that she has otherwise been a good mother to her young daughter. She is now married and can provide a suitable moral environment for the child. The child has always lived with her mother and a change of custody to the father would result in her being relocated in another state. The father’s asserted moral superiority is marred by his own admitted misconduct on one occasion, and his professed concern for the welfare of his daughter weakened by his total failure to provide for her support during a period of time when he knew or should have known that his wife had inadequate resources of her own to properly care for the child.”

The court of appeal disagreed. Its reversal of the custody award was based on Schexnayder v. Schexnayder, 371 So.2d 769 (La. 1979), wherein this Court reversed an award of custody to the mother of three small children. As in the instant case, the trial judge had granted custody of the minor children to their mother in spite of her admission of adultery. The court of appeal upheld the ruling of the trial court. Noting that proof of adultery does not necessarily render morally unfit parent who is otherwise suited for custody, we nevertheless reversed the decisions of the lower courts and awarded permanent custody to the father, for this reason:

“However, when the mother has consistently engaged in a course of open and public adultery in defiance of generally accepted moral principles and in disregard to the embarrassment and injuries which might be sustained by the children, then the court is justified in depriving her of the care of the children, and in awarding custody to the father, or to some other person lawfully entitled to it.” (citations omitted)

In Schexnayder, the mother had clearly engaged in open and public adultery, without regard for her children’s well-being. However, comparison of the facts of Schex-nayder to those of the instant case reveals significant differences between the two. While still living with her husband, Mrs. Schexnayder became sexually involved with a man of another race. She would meet her lover behind a school, a church, or other such building and proceed with him to a motel or other location and engage in sexual relations. On one occasion, Mrs. Schex-nayder parked her car in the parking lot of a small town bar and walked to her lover’s van, which was also in the lot. She then drove with him to the levee, where they had sexual relations inside the van. The couple were so indiscreet in the conduct of their affair that their relationship became common knowledge and the subject of much gossip in the small town in which the Schexnayders resided. At the trial for custody pendente lite, Mrs. Schexnayder admitted continuing the affair in spite of the detrimental effect she knew it would have on her marriage and her children.

By contrast, Mrs. Stephenson had been living separate and apart from her husband for some time before she became involved with Eddie Gunby. Her relationship with Mr. Gunby, even after she and Candice began living with him, engendered none of the notoriety which marked Mrs. Schexnay-der’s affair. In comparison to the flagrant sexual misbehavior of Mrs. Schexnayder and her lover, Mr. Gunby and Mrs. Stephenson seem to have conducted themselves with considerable discretion.

Perhaps most pertinent to the issue of child custody, testimony in the Schexnayder case indicated that Mrs. Schexnayder had neglected the basic needs of her children during her affair. The children were invariably sent to their grandparents’ home when their mother wished to meet her lover. The grandmother testified that she took “pity” on them and would feed them, bathe them and put them to bed. The quality of the children’s home environment was also doubtful in light of the grandmother’s testimony that it took her and a maid eight days to clean the house after Mrs. Schexnayder had moved out.

In the instant case, the testimony is undisputed that Mrs. Stephenson has provided excellent care for her young daughter, supplying all her needs of food, clothing and shelter during the time since the couple separated in fact. Mr. Stephenson acknowledged that his wife had always properly cared for their child. He must have felt that Candice was receiving adequate care, for he failed to provide support for her after his move to Thibodeaux.

As demonstrated by the above factual comparison, the court of appeal incorrectly analogized this case to Schexnayder v. Schexnayder, supra. The instant case bears more similarity to Cleeton v. Cleeton, 383 So.2d 1231 (La. 1979). In Cleeton, the mother of three daughters, aged 7 to 15, became involved with another man after separation in fact from her husband. This man, Dave Breedlove, spent a great deal of time at the home of Mrs. Cleeton and her daughters, frequently staying overnight or for whole weekends. As in this case, the trial court found that the children were accustomed to the care of their mother. Evidence at the trial failed to establish that Mrs. Cleeton had neglected any of the needs of her children, or that her children had otherwise suffered because of their mother’s affair. The trial court noted that the mother’s relationship with Dave Breedlove had not adversely affected the children at the time of trial and that she had discontinued her open association with him. The court of appeal reversed the custody award made by the trial judge. On rehearing, this Court, acknowledging the great weight to be given to the determinations of the trial court in a custody proceeding, reversed the court of appeal and reinstated the trial judge’s award of custody to Mrs. Cleeton.

In this case, no evidence has been presented to indicate that Mrs. Stephenson’s relationship with Eddie Gunby has had a detrimental effect on her young daughter. The trial judge specifically found that no impropriety had been conducted within the sight or hearing of the child. As in the Cleeton case, Mrs. Stephenson was no longer living with Mr. Gunby at the time of the permanent custody hearing.

Upon appellate review, the determination of the trial judge in child custody cases is entitled to great weight and will not be disturbed unless a clear showing of abuse of discretion is made. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Schexnayder v. Schexnayder, supra. Reviewing the record in this case, we are unable to say that the trial court abused its discretion in awarding custody of Candice Ann to Mrs. Stephenson. Admittedly, the trial judge erred in going beyond the record for confirmation of the marriage of Mrs. Stephenson and Eddie Gunby. However; evidence which is in the record amply supports the intention of this couple to marry. The trial court’s award of custody on the basis of this evidence is within his discretion.

For the foregoing reasons, the opinion of the court of appeal is reversed and the judgment of the trial court awarding permanent custody of Candice Ann Stephenson to Linda Stephenson is reinstated.

DENNIS, J., concurs.