author: DIXON, Chief Justice. DENNIS, Justice, WATSON, Justice, BLANCHE, Justice LEMMON, Justice,

text:
    Kathleen THAMES v. Clebert ZERANGUE, Jr. and Safeco Insurance Company.
    No. 81-C-1978.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.

      Elizabeth Dugal, Lafayette, for plaintiff-relator.
    Charles A. O’Brien, III of Franklin, Moore & Walsh, Baton Rouge, for defendants-respondents.
   DIXON, Chief Justice.

This suit for personal injuries arose when plaintiff’s car was struck from the rear by Clebert Zerangue’s pickup truck. The jury returned a verdict for the defendants. The Court of Appeal affirmed. 401 So.2d 648 (La.App.1981). We granted writs, and reverse.

On May 29, 1979 Zerangue was traveling in the left lane, heading south on Highway 167 approaching an intersection near North-gate Mall in Lafayette, Louisiana. He testified he was looking at a stalled car in the right lane, and failed to see plaintiff’s car that had stopped for a line of traffic at the Willow Street intersection. Defendant’s truck struck Kathleen Thames’ car from the rear, and forced it into the vehicle ahead of her. The impact was so severe that it caused Miss Thames’ seat to break loose from the car; fortunately, she was wearing a seat belt and shoulder harness. The rear end of the ear was crushed so that it took fifteen minutes to extract a suitcase from the trunk. Defendant admitted to the investigating officer that he had not seen plaintiff’s car until immediately prior to the collision. Zerangue had pleaded guilty to a charge of “following too close,” for which he was fined $30.00 and costs.

When plaintiff got out of the car her neck hurt, and was difficult to move. She was crying and had a severe headache. After the officer completed investigation, plaintiff drove her wrecked car to work. Her employer instructed an employee, Donna Fontenot, to drive her to the hospital because she was in so much pain. At the emergency room plaintiff complained that her neck and shoulders were numb. The nurse packed sandbags around her neck to prevent movement. X-rays were taken of her neck and spine, and she was given a prescription for a pain reliever.

Plaintiff did not return to work until the second day after the accident. She tried to avoid taking the pain medication that had been prescribed, but found the medicine was necessary for her to function at work. The medicine, however, did not allow full movement of her neck. She visited an orthopedist, Dr. Cobb, the second week following the accident because of problems with her neck. She did not keep her second appointment with Dr. Cobb because her neck was feeling better two weeks later.

The jury returned a general verdict for defendants despite Zerangue’s admission of negligence. The verdict for defendants is clearly wrong in view of Zerangue’s admission of fault. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978)..

The Court of Appeal relied on our recent decision in Napoli v. State Farm Mutual Automobile Insurance Co., 395 So.2d 720 (La.1981), and noted that we had affirmed a jury award of “$0” where plaintiff had failed to prove trauma related injuries. Napoli is distinguishable from the case at bar. In Napoli, the jury returned a verdict in favor of plaintiff, but awarded “$0” damages. The jury in this case rendered a general verdict in favor of defendants, and consequently assessed no damages. The verdict is clearly contrary to the law and evidence. Zerangue admitted he had caused the accident because he was following too close and failed to see the plaintiff’s car in time to prevent the collision. Ze-rangue’s uneontroverted admission of fault requires rendition of judgment in favor of plaintiff.

It is true Miss Thames did not prove that all her claimed injuries were caused by the accident, but she undoubtedly suffered pain and inconvenience from the accident. In Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967), plaintiff was involved in a rear end collision and sustained whiplash injuries. The trial judge entered judgment in favor of plaintiff, but felt her injuries were greatly exaggerated; he also did not believe the testimony of plaintiff’s doctor because the physician had given similar whiplash testimony in other cases. The trial judge awarded plaintiff the nominal sum of $250.00 as compensatory damages and $150.00 for medical expenses. This court, in an opinion by Justice McCaleb, found the trial judge abused his discretion by not giving credence to the physician’s uncontro-verted testimony, and held that an award of $1800.00 would properly compensate plaintiff for her pain and suffering.

Plaintiff is entitled to compensatory damages for inconvenience, loss of wages, medical expenses and any other damages she suffered which were caused by this accident.

In Jordan v. The Travelers Insurance Co., 257 La. 995, 1006-1007, 245 So.2d 151, 155 (1971), we held that:

“One injured through the fault of another is entitled to full indemnification for the damages caused thereby. La.Civil Code Art. 2315. Another general princi-pie deduced therefrom and applicable here may be stated as follows:
Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case. Civil Code Art. 1934(3); Brantley v. Tremont & Gulf Ry. Co., 226 La. 176, 75 So.2d 236 (1954), and decisions therein cited. ...”

The record shows that Safeco, defendant’s insurer, paid for all plaintiff’s medical expenses through August 15, 1979. The bills were previously paid by plaintiff’s group health insurer, Metropolitan, and it was reimbursed by Safeco. Plaintiff does not argue that she is entitled to recover medical expenses for which she has been reimbursed. Therefore, the only medical expenses at issue are represented by the deductible portion of plaintiff’s group health insurer, which amount to $126.96.

The lost wages suffered by the plaintiff because of this accident, uncontradicted by any evidence, are $528.00.

The tortfeasor takes his victim as he finds her. In Reck v. Stevens, 373 So.2d 498, 502 (La.1979), this rule was held applicable to a plaintiff who had a history of emotional problems in the following passage:

“Unquestionably, the severity and persistence of the subjective symptoms (headaches, dizziness, disorientation) in part resulted because of an underlying (but until-then controlled) emotional instability of the plaintiff, a non-specific schizophrenic process of long standing. Nevertheless, a tortfeasor takes his victim as he finds him, and he is responsible in damages for the consequences of his tort although the damages so caused, are greater because of a prior condition of the victim which is aggravated by the tort. Restatement of Torts, 2d, Section 461; see many Louisiana cases including, e.g., Johnson v. Ceaser, 304 So.2d 855 (La.App. 4th Cir. 1974).”

Plaintiff in this case was described by her family physician, Dr. Hill, as having “psychological problems.” Dr. Hill had treated her since she was twelve years old, and related that she usually had a “laundry list” of complaints. In the months which followed the accident in this case, plaintiff complained of visual problems, a swollen and painful arm, neck pain, and stomach pain.

The plaintiff had complained of visual problems and a swelling in her arm before the accident. These complaints were received by the doctors who examined her as serious complaints. She was given numerous tests, including two CAT scans, extensive x-rays, and neurological examinations, for which examinations she was hospitalized on four different occasions. She was referred by her treating physician to another physician, who in turn referred her to other physicians. She did not employ a lawyer until months after the accident, and her lawyers did not refer her to any of the physicians who testified. Among those who treated her were her family physician, an orthopedist, a neurosurgeon and a psychiatrist. Her doctor visits were frequent and her complaints were numerous.

In following up the plaintiff’s complaints of stomach pain, it was learned that she had a gastric ulcer, which was treated and “cured” before the trial. The cause of the ulcer was attributable to stress. The only source of stress in the record is that which arose as a consequence of the automobile accident.

It is hard to imagine an automobile accident in which an automobile is demolished that does not cause stress to the occupant. One of Miss Thames’ complaints was that, in replacing the demolished automobile with a model only one year newer, her automobile notes increased $25.00 a month. Miss Thames lived alone and her only income was her. salary as a newspaper reporter. She testified that the constant press of medical bills caused her great concern, and required her to borrow money from her father and from a bank. It was brought out on cross-examination that almost all the plaintiff’s medical bills were paid for her by an insurance company, and that the sums she borrowed from the bank were not attributable to medical bills.

Miss Thames countered, however, by demonstrating that she was required to pay cash for examinations and treatments, and was not reimbursed for two or three months. She apparently lived up to the limits of her modest salary.

Miss Thames’ ulcer was related to the accident by the evidence. Her complaints about visual problems were only remotely related to the accident, the experts being of the opinion that they were related to a migraine condition, which was possibly affected by stress. The swelling and painful arm was not seen by physicians. One physician did notice a condition in the muscles of a hand for which he made extensive neurological tests, without a conclusion. The arm complaint, like the visual condition, was not shown by the testimony to have been caused by the accident.

Although there was some effort to prove that the plaintiff’s “lifestyle” was changed for the worse as a result of the accident, the record will not support a conclusion that the plaintiff was disabled for any great length of time, nor that she was in pain and discomfort continuously. There was no evidence that the disability caused by the accident would continue past the date of trial.

Consequently, the plaintiff is entitled to a judgment in the amount of $3000.00 for her pain, suffering and inconvenience, which should be added to the $126.96 listed above for uncompensated medical expenses and $528.00 for lost wages.

For these reasons, the judgments of the lower courts are reversed, and there is now judgment in favor of plaintiff, Kathleen Thames, and against the defendants, Cle-bert Zerangue, Jr. and Safeco Insurance Company, in the amount of $3654.96 with 10% interest from the date of judicial demand until paid, and all costs.

DENNIS, J., concurs with reasons.

WATSON, J., concurs and assigns reasons.

MARCUS, J., dissents.

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

DENNIS, Justice,

concurring.

I respectfully concur. I agree that the verdict was contrary to the evidence. The defendant’s admission of fault is merely one item of evidence, however, and should not be viewed as conclusive proof.

WATSON, Justice,

concurring.

This court erred in reaching precisely the opposite result on essentially identical facts in Napoli v. State Farm Mut. Auto. Ins. Co., 395 So.2d 720 (La., 1981), see dissent. Now we have a correct result which has the effect of destroying whatever precedential value Napoli may have had. Quaere: what does plaintiff Napoli think?

I respectfully concur.

BLANCHE, Justice

(dissenting).

I respectfully dissent.

The opinion is correct in holding that the plaintiff was entitled to a judgment, especially since the jury heard the defendant, Zerangue, admit his negligence. The opinion is wrong in awarding damages.

Surely the jury would know plaintiff would not have to prove that which was admitted. This left for jury consideration the only remaining issue — namely, the plaintiff’s entitlement to compensatory damages. The jury rejected plaintiff’s claim for damages and awarded her nothing when they found in favor of the defendant.

The court of appeal, in an excellent opinion by Judge Cutrer, exhaustively examined the evidence on the question of whether plaintiff established that she suffered injuries as a result of the accident. That court found that the evidence would support a finding that plaintiff’s complaints were not related to the accident. It also stated, “The appeal court should not disturb the findings of the trier of fact in the absence of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Manifest error means clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).”

I would not substitute our judgment on the issue of damages and resolve the matter as was done in Napoli v. State Farm Mutual Automobile Ins. Co., et al, 395 So.2d 720 (La.1981).

LEMMON, Justice,

dissenting.

If the jury’s verdict in favor of defendants was necessarily based on a factual finding that plaintiff sustained no damages whatsoever (or that defendants were not negligent), then the verdict would have been clearly erroneous. However, defendants paid almost $4,000 of plaintiff’s damages prior to suit, and plaintiff’s suit demanded the damages caused by defendants’ fault in excess of that amount. I cannot say on this record that the jury was clearly wrong in deciding that plaintiff failed to prove that her damages resulting from the accident exceeded $4,000. The judgments based on that verdict should be affirmed.

      . Settlement was reached for the property damage suffered by plaintiff. Safeco, Ze-rangue’s insurer, paid plaintiff $3800.00 for her 1978 Toyota that was a total loss as a result of the accident.

      . The verdict stated the following:
      “We, the Jury, find in favor of defendant, CLEBERT ZERANGUE, JR., and SAFECO INSURANCE COMPANY, and consequently assess no damages.”

      . In Napoli v. State Farm Mutual Automobile Insurance Co., 395 So.2d 720 (La.1981), the jury returned this verdict:
      “Judgment in favor of plaintiff, Peggy J. Na-poli, and against the defendants in the amount of $0.”

      . The trial judge in Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967) was John A. Dixon, Jr.

      . In this situation, in which defendants paid plaintiff the amount of damages that defendants believed was due, a verdict in favor of the defendants cannot be regarded as a determination that plaintiff has sustained no damages whatsoever.

      . It is of no consequence that defendants paid the sums to plaintiff as reimbursement for special damages.
      There was only a general verdict, and there were no special interrogatories requiring the jury to award separate amounts for each item of damages claimed. The jury could well have decided on this record that defendants overpaid plaintiff for property damages or medical expenses (or both) caused by this accident and could have attributed to general damages part of the amounts paid as special damages.


source: Caselaw Access Project

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

license: Public Domain

text:
    David L. WILKINSON, Individually and as Administrator of the Estate of his Minor Son, David Len Wilkinson v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, et al.
    No. 81-C-2228.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.

      Chris Smith, III, of Smith, Ford & Clark, Leesville, for plaintiff-applicant.
    David A. Hughes, of Gist, Methvin, Hughes & Munsterman, Alexandria, for defendants-respondents.
   MARCUS, Justice.

David L. Wilkinson, individually and as administrator of the estate of his minor son, David Len Wilkinson, instituted this action against Joseph L. Rivers, Rapides Parish School Board, and Hartford Accident and Indemnity Company to recover damages for personal injuries sustained by David Len in an accident that occurred in the gymnasium lobby of the Glenmora High School. Hartford was the general liability insurer of the school board. After trial on the merits, the trial judge rendered judgment in favor of defendants and against plaintiff dismissing plaintiff’s suit at his cost. In written reasons for judgment, the trial judge, while finding no negligence on the part of Rivers, concluded that the school board was negligent but denied recovery to plaintiff because of the contributory negligence of David Len. The court of appeal affirmed. On application of plaintiff, we granted cer-tiorari to review the correctness of that decision.

The facts are generally not in dispute. On November 8,1978, David Len Wilkinson, age 12, attended his seventh grade physical education class conducted by Joe Rivers, athletic coach, in the high school gymnasium. The gymnasium was originally constructed in 1965 with ordinary glass installed in all windows. When entering the gymnasium through the front doors, the first area encountered is a lobby or foyer extending from left (south) to right (north) about seventy feet with glass panels extending from the floor to the ceiling at each end of the lobby. A concession stand is located immediately in front of the entrance doors, about seven feet back, and rest room facilities are located on either side of the front doors. A water fountain is outside each rest room. To reach the spectator area from the front door of the gymnasium, it is necessary to walk into the lobby, turn left or right and walk about thirty feet in either direction to a door which leads from the lobby to the bleachers. Each door is about five feet from the glass panels at the end of the lobby. There is a wall immediately behind the concession stand with openings or doorless “portages” on either side which provide direct access between the lobby and the basketball court. The panel at the north end of the lobby was safety glass (the original plate glass panel having been replaced several years earlier following an incident in which a visiting coach walked through the glass) and the south panel was the original plate glass.

On the day of the accident, the physical education class was being conducted on the east half of the basketball court (side nearer to the lobby). Another cl;ass was being conducted on the other half. Coach Rivers had divided the boys into about six teams of five boys each. Relay races were being conducted between two teams at a time. At the conclusion of each race, the participants were instructed to sit along the inside east wall of the gymnasium and await their next turn. Coach Rivers was supervising the races at the time. While the boys had been instructed not to linger or engage in horseplay in the lobby, they were permitted to go into the lobby to get water from the fountains. Following one of the races, David Len and the other members of his team went into the lobby to get a drink of water from the north fountain. It was decided at that time to conduct a race of their own between David Len and another boy in order to determine the order they should be positioned in the next race. The ráese was to be from the north water fountain to the south glass panel and back again. The other boy reached the panel first and turned but when David Len reached the glass panel, running at his full speed, he pushed off the panel with both hands causing the glass to break. He fell through the glass onto the outside. He sustained multiple cuts on his arms and right leg and was bleeding profusely. Coach Rivers came immediately to the scene and administered first aid. David Len was then taken to the hospital for further treatment. After the accident, the school board replaced the south panel with safety glass.

The issues presented are the alleged negligence of Coach Rivers in failing to properly supervise the physical education class and/or that of the school board in maintaining a plate glass panel in the foyer of the gymnasium and if either or both was negligent, whether plaintiff’s action is barred by the contributory negligence of David Len.

The trial judge found that Rivers exercised reasonable supervision over the physical education class commensurate with the age of the children and the attendant circumstances. The court of appeal agreed. Our review of the record supports the conclusion reached by the courts below. Hence, we conclude that Coach Rivers was not negligent.

The trial court found that the negligence of the school board was a cause of the accident. A school board is liable if it has actual knowledge or constructive knowledge of a condition unreasonably hazardous to the children under its supervision. R. L. Ardoin, et al v. Evangeline Parish School Board, 376 So.2d 372 (La.App. 3d Cir. 1979). The evidence in the record amply supports the conclusion that the school board had actual and constructive knowledge that the existence and maintenance of plate glass in the foyer of the gymnasium was dangerous. An identical panel at the north end of the foyer was broken when a visiting coach walked into the plate glass several years earlier. The panel had been replaced by safety glass. Moreover, we consider that the plate glass in the foyer of the gymnasium less than five feet from the traffic pattern of spectators of all ages and directly accessible to the basketball court was so inherently dangerous that the school authorities should have known of the hazard it created. The court of appeal agreed with the finding of the trial court that the school board was negligent. We agree. Accordingly, we conclude that the school board was negligent.

Having found that the school board was negligent, we must next consider whether David Len, age 12, was contributo-rily negligent. While a child of 12 can be guilty of contributory negligence, such a child’s caution must be judged by his maturity and capacity to evaluate circumstances in each particular case, and he must exercise only the care expected of his age, intelligence and experience. Plauche v. Consolidated Companies, Inc., 235 La. 692, 105 So.2d 269 (1958). Defendant bears the burden of proving contributory negligence by a preponderance of the evidence. Dofflemyer v. Gilley, 384 So.2d 435 (La.1980).

The race in the lobby of the gymnasium was simply an unsupervised extension of the relay races being conducted on the basketball court in the main area of the gymnasium. We consider that it was normal behavior for 12-year-old boys to do what David Len and his teammates did under the circumstances despite a previous warning to refrain from engaging in horseplay in the lobby. Moreover, David Len had no reason to be aware that the panel through which he fell was plate glass as opposed to safety glass or to anticipate that pushing against this panel would cause it to shatter. Hence, we do not find that defendants met their burden of proving contributory negligence on the part of David Len. The trial judge was clearly wrong in holding otherwise, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), and the court of appeal erred in affirming that result.

In sum, we find that Joseph L. Rivers was not negligent. However, we do find that the Rapides Parish School Board was negligent but do not find that David Len Wilkinson was contributorily negligent. Hence, the negligence of the Rapides Parish School Board was the sole cause of the accident and the school board is responsible to plaintiff for damages sustained by David Len as a result of the accident. La.Civ. Code arts. 2315 and 2316.

Our finding of negligence and liability under La.Civ.Code arts. 2315 and 2316 makes it unnecessary for us to consider the application of La.Civ.Code arts. 2317 and 2322. Since the court of appeal denied recovery against the school board because of the contributory negligence of David Len, it did not reach the issue of the amount of damages. We consider it more appropriate to remand the case to that court for its review of that issue.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the court of appeal to consider the issue of the amount of damages not reached in its original opinion.

LEMMON, J., concurs and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

LEMMON, Justice,

concurring.

It is unnecessary to discuss negligence, because the Rapides Parish School Board was strictly liable under C.C. Art. 2322.

The School Board had a duty to install safety glass (or to replace plate glass with safety glass) in areas where plate glass presented an unreasonable risk of injury. The plate glass in the gym foyer, less than five feet from the traffic pattern and directly accessible to the basketball court, presented an unreasonable risk that young persons using the gym or engaging in horseplay associated with gym activities would crash into the glass. Moreover, there was an ease of association between the risk which requires imposition of the duty and the injury which actually occurred after the School Board breached the duty. Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972).

Finally, the breach of duty in this case cannot be excused on the basis of victim fault. The victim’s conduct cannot be both the foreseen risk which is the basis for imposing the duty and at the same time a defense to an action resulting from a breach of the duty. Outlaw v. Bituminous Ins. Co., 357 So.2d 1350 (La.App. 4th Cir. 1978), cert. denied, 359 So.2d 1293.

BLANCHE, Justice

(dissenting).

Both lower courts found for the defendant, believing that plaintiff’s 12 year old son indulged in conduct in “gross disregard of his own safety in the face of known, understood and perceived danger.” Simmons v. Beauregard Parish School Board, 315 So.2d 883 (La.App. 3rd Cir. 1975), writ den. 320 So.2d 207 (La.1975).

This writer agrees that a high degree of care would have required the school board to have safety glass panels in the gymnasium foyer because they should be held to know that young people might engage in “horseplay” in the school hallways or foyers, although having been instructed to the contrary. Nevertheless, a 12 year old boy, in this writer’s opinion as well as the opinion of both lower courts, should know that pushing off a glass panel was dangerous, that the glass might break, and that he might be injured. Accordingly, I am of the opinion that the judgments of both lower courts on this issue was correct.

I respectfully dissent.

      . 400 So.2d 705 (La.App. 3d Cir. 1981).

      . 406 So.2d 623 (La. 1981).

      . In 1972, the legislature enacted La.R.S. 40:1711-1715 which imposes a criminal sanction for the failure to use “safety glazing material” in any hazardous location. The law became effective on January 1, 1973, but expressly directs that it is not to be retroactive. Hence, it does not apply to the Glenmora High School gymnasium.

      . R.S. 40:1711-1715 are criminal statutes relating to this duty. Although the statute cannot be used to impose criminal sanctions as to buildings constructed prior to 1973, the statute may be applied by analogy as one of the factors to be considered in determining the School Board’s civil duty to replace the plate glass in dangerous areas of existing buildings. Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970).


author: DENNIS, Justice. BLANCHE, Justice

text:
    Don THOMPSON v. SOUTH CENTRAL BELL TELEPHONE COMPANY and New Orleans Public Service, Inc.
    No. 81-C-2305.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.
    Charles R. Moore, of Moore & Walters, Baton Rouge, for plaintiff-applicant.
    Daniel Lund, Sylvia Landry Holder, and Gus A. Fritchie, III, of Montgomery, Barnett, Brown & Read, Michael E. Wanek, of Hulse, Nelson & Wanek, Floyd Greene, Raymon G. Jones, of Deutsch, Kerrigan & Stiles, New Orleans, for defendants-respondents.
   DENNIS, Justice.

Plaintiff, Don Thompson, was working for W. S. Cifers Construction Company, Inc., as a jackhammer operator breaking up concrete and digging an underground pathway for a conduit on Tchoupitoulas Street in the City of New Orleans, Louisiana. Thompson was shocked, burned and severely disfigured when the airhammer he was operating came in contact with a buried cable carrying 13,000 volts of electricity.

Thompson filed suit against South Central Bell Telephone Company and others. He alleged that South Central Bell owed him a duty to warn against and provide accurate information concerning the buried electrical cable by virtue of the fact that it had contracted with Thompson’s employer, Cifers Construction Company, to dig the underground pathway for a telephone conduit. He made two claims of negligence against South Central Bell: (1) Failing to warn him of the presence of the cable; and (2) Providing his employer with a map incorrectly showing the location of the cable.

South Central Bell filed a timely motion for summary judgment. The trial court granted it and the plaintiff, Thompson, appealed unsuccessfully. Thompson v. South Central Bell Telephone Company, 402 So.2d 799 (La.App. 4th Cir. 1981). This court granted certiorari to review the previous courts’ rulings.

Summary judgment under La.C.C.P. arts. 966-969 is based on Federal Rule 56. Although it is an extremely useful device for putting an end to unnecessary litigation, it must be used with caution. “Summary judgment procedure is not a catchpenny contrivance to take unwary litigants into its toils and deprive them of a trial.” Whitaker v. Coleman, 115 F.2d 805, 307 (5th Cir. 1940). Rather, it is available only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.C.C.P. art. 966; Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981); Chaisson v. Domingue, 372 So.2d 1225 (La.1979). Whenever there remain factual issues in dispute, a court should not grant summary judgment but should set the case for trial. For reasons given below, we believe that a material factual issue is in dispute, that mover is not entitled to judgment as a matter of law, and accordingly we reverse and remand for trial.

Thompson’s allegations that South Central Bell committed acts of negligence which caused him damage are not disputed by the telephone company in this proceeding. South Central Bell asserts, however, that it cannot be held liable or obliged to repair the damage as normally would be required under Civil Code Article 2315 because of special statutes which exempt it from such liability.

The worker’s compensation statute, La. R.S. 23:1032, provides that an employee’s right to compensation for a work-related injury “shall be exclusive of all other rights and remedies ... against his employer, or any principal ... of such employer * * *.” In order for a person to be a principal he must have undertaken to execute “work, which is a part of his trade, business, or occupation or which he had contracted to perform and contracts with any person” for the execution thereof.

South Central Bell filed an affidavit and depositions in an effort to show that the material facts are undisputed that the work which the telephone company had contracted with Thompson’s employer to perform was a part of South Central Bell’s trade, business or occupation. In the affidavit, a division staff manager of the company said that (1) construction of underground telephone lines is an integral and necessary part of the company’s trade, business or occupation; (2) Thompson’s employer had contracted with the company to break up concrete and dig an underground pathway for such a telephone line; (3) Thompson was injured while working for his employer in performance of its obligation under the contract; (4) although the telephone company “does not utilize its own equipment and employees to perform the type of work” being done by Thompson’s employer “said work could be performed by South Central Bell Telephone Company with its own equipment and employees;” (5) South Central Bell Telephone Company presently operates and has for many years operated a construction department whose operations presently consist of the installation, placement, rearranging and removal of cable facilities and conduits necessary to the providing of telephone services to subscribers; (6) said department could at any time be expanded by the addition of more employees to perform precisely the type of work which plaintiff and his employer, W. S. Cifers Construction Company, Inc., were performing on November 20, 1978. In one deposition, the construction manager of the company testified that its construction department does not tear up streets, install conduits or set poles in the ground, but only places telephone cable on the poles or in the conduits. In the other deposition, the project engineer of the company testified that it does not have any employees which do the work that Thompson’s employer was performing. In both depositions the telephone company employees continually disclaimed any responsibility for supervision or safety conditions of the work.

Since the burden is on the party moving for summary judgment to demonstrate that there is no genuine issue of material fact, he must also show that the contents of his affidavit would be admissible at trial. La. C.C.P. arts. 966, 967; see also C. Wright & A. Miller, Federal Practice and Procedure, § 2738 at n. 30 (1973 and Supp.). Ultimate or conclusory facts and conclusions of law cannot be utilized on a summary judgment motion. United States v. W. H. Hodges & Co., 533 F.2d 276 (5th Cir. 1976); Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir. 1976); Donnelly v. Guion, 467 F.2d 290 (2d Cir. 1972); Wright & Miller, supra, § 2738 at n. 32.

From the facts alleged in the affidavit which would be admissible at trial and the depositions it appears that the telephone company itself never peforms the work which it agreed to pay Thompson’s employer to do. The affiant’s statement that construction of underground telephone lines is a part of South Central Bell’s trade, business or occupation is an ultimate or conclu-sory fact or a conclusion of law and cannot be utilized on a summary judgment motion. The only pertinent evidentiary or subsidiary facts stated by the affiant were that Thompson was injured while working for Cifers, that Cifers was breaking concrete and digging an underground pathway pursuant to a contract with South Central Bell, and that South Central Bell does not utilize its own employees for this type of work.

Where the court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268 (La. 1981); Vermilion Corporation v. Vaughn, 397 So.2d 490 (La.1981). When reasonable minds can differ on whether the mover is entitled to judgment on the facts before the court the motion for summary judgment should be denied. Cates v. Beauregard, 328 So.2d 367 (La.1976). We find that the evidence submitted on the motion is such that reasonable minds could differ and draw contrary reasonable inferences on the material issue of fact as to whether the work of Thompson’s employer was a part of the telephone company’s trade, business or occupation. Since the conclusory statement of ultimate fact or law contained in the affidavit cannot be utilized on a summary judgment motion, there is nothing in the record which indicates that the work of Cifers in breaking concrete and digging an underground pathway was a part of South Central Bell’s trade, business or occupation. Accordingly, we conclude that there is a genuine issue as to a material fact and that there is a reasonable inference to be drawn from the evidence under which mover is not entitled to judgment as a matter of law.

Perhaps on the trial of the case South Central Bell will be able to show enough evidentiary facts to convince a trier of fact that the work performed by Cifers was part of its trade or business. However, the evidence presented in support of the motion for summary judgment consists primarily of South Central Bell’s conclusion of ultimate fact or law, rather than detailed evidentiary facts from which a court can conclude that there is no dispute as to this ultimate fact and that South Central Bell is entitled to judgment as a matter of law. By granting this motion for summary judgment the courts would, in effect, permit South Central Bell to deprive the plaintiff of a trial on the basis of its own conclusion or opinion as to whether the work of Thompson’s employer was a part of its trade or business.

Since the motion for summary judgment was granted in error, the judgments of the court of appeal and the trial court are reversed and the case is remanded for trial.

REVERSED AND REMANDED.

BLANCHE, J., dissents and assigns reasons.

WATSON, J., dissents being of the opinion that the work was obviously part of Bell’s trade, business or occupation.

BLANCHE, Justice

(dissenting).

Laying telephone cable is a regular part of South Central Bell’s trace, business or occupation even if it had been subcontracted out from the day of its existence. It would seem to this writer that, from the nature of the work, it is an inescapable conclusion that the work was a part of their regular trade, business or occupation. The court of appeal opinion was correct.

      . Thompson also sued New Orleans Public Service, Inc., the owner of the electrical cable, and Surveys, Inc., which provided engineering and surveying services for the construction project. We are not concerned with these claims in this case.

      . South Central Bell also argues that because La.R.S. 45:781 entitles them to a right of way over the property necessary to construct telephone lines, and La.R.S. 45:782 imposes on it a duty to transmit all communications of persons offering to pay the usual rates, it is a statutory employer of plaintiff, and therefore enjoys tort immunity in this case, even in the absence of affidavits or other evidence. This contention is without merit. That the legislature has authorized South Central Bell to perform certain acts is not controlling in determining the factual question of whether the work being performed was part of their trade or business. The legislature may empower an entity to do something that it has never done, or that it used to do but has not done in a long time. See W. Malone and A. Johnson, Workers Compensation Law and Practice § 126 in 13 Louisiana Civil Law Treatise at 260 (1980).

      . La.R.S. 23:1061 contains a very similar definition:
      “Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; * * * ”

      . This case is distinguishable from Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978), in which the evidence supporting the motion for summary judgment established that both Sun Oil and other oil companies regularly performed the same type of work as was done under the contract at other facilities as part of their businesses with their own employees. See also Duvalle v. Lake Kenilworth, Inc., supra.


text:
    STATE of Louisiana v. Michael D. LEATHERWOOD.
    Nos. 81-KA-1450, 81-KA-1451.
    Supreme Court of Louisiana.
    March 1, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee.
    C. Allen Bradley, Jr., of Evans, Bradley & Wallace, DeRidder, for defendant-appellant.
   PRICE, Justice Ad Hoc.

By separate bills of information, defendant, Michael Dale Leatherwood, was charged with two counts of armed robbery in violation of La.R.S. 14:64. After trial by jury on the first count, defendant was found guilty of simple robbery, a responsive verdict (case No. 81-KA-1450). A separate trial by jury was held on the second count and defendant was found guilty as charged (case No. 81-KA-1451). Thereafter, defendant was sentenced to serve seven years at hard labor for the simple robbery conviction and fifteen years at hard labor without benefit of parole, probation, or suspension of sentence on the armed robbery conviction. Both sentences are to run concurrently. Defendant appeals these convictions and relies upon three assignments of error, two of which are common to both cases.

The record reflects that on August 24, 1980, defendant and three companions were involved in the armed robbery of D. N. Patel, a desk clerk at the Dormez Inn in Deridder, Louisiana. Later, on August 25, 1980, defendant and two companions robbed Mary E. McDaniels, a cashier at Bill’s Dollar Store In Merryville, Louisiana. Both offenses occurred in Beauregard Parish.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant argues the trial court erred in failing to grant defense motions to suppress certain written inculpatory statements made by defendant. Defendant contends the inculpa-tory statements were the product of an unlawful arrest made without probable cause. Furthermore, defendant contends that as a result of certain personality defects, he did not fully comprehend the nature of the waiver of his rights against self-incrimination.

The evidence elicited from the joint hearing on the motions to suppress establishes the following facts. On the date of his arrest, defendant was a member of the military stationed at Fort Polk in Vernon Parish, Louisiana. While investigating an armed robbery, Deputy Larry Smith of the Vernon Parish Sheriff’s Department received information from James Kellison, a soldier stationed at Fort Polk, concerning the commission of certain crimes outside of Vernon Parish. Specifically, Kellison informed Deputy Smith that defendant and other soldiers stationed at Fort Polk had told him of their involvement in various armed robberies in Beauregard Parish. Kellison also stated that these soldiers had been involved in the armed robbery and murder of a cab driver in Jackson, Mississippi on Saturday, August 23, 1980.

, After receiving this information, Deputy Smith contacted the Jackson Police Department and verified that a cab driver had been robbed and murdered in that city on August 23.

Based on this information, on August 29, 1980, Deputy Smith contacted Fort Polk and requested that defendant be detained. At approximately 11:00 a. m. defendant was placed in detention by military authorities. While in detention, defendant was not questioned, nor was he advised why he was being held.

Meanwhile, the Beauregard Parish Sheriff’s Department was conducting an investigation into the robbery at Bill’s Dollar Store in Merryville. Based on information gathered from this investigation, arrest warrants were issued for defendant on charges of armed robbery and aggravated kidnapping.

Deputy Smith was notified of the issuance of these warrants at approximately 3:00 p. m. Copies of the warrants were obtained and at approximately 3:30 p.m., defendant was released from military detention and placed under arrest by Vernon Parish deputies. Defendant was immediately apprised of the charges against him and was advised of his rights. While traveling to the Vernon Parish Sheriff’s office, defendant was once again advised of his rights.

Defendant was not questioned until approximately 5:15 p. m., after his arrival at the sheriff’s office. Prior to questioning, defendant was advised of his rights and was presented with a printed rights form which he signed, indicating that he understood his constitutional rights. After signing the waiver portion of the rights form, defendant confessed his involvement in the Dollar Store robbery.

At the conclusion of questioning, defendant was transported to Beauregard Parish for incarceration. On August 30, 1980, at approximately 11:30 a. m., defendant was again advised of his rights and again signed a waiver form. At this time, defendant confessed to the armed robbery at the Dor-mez Inn.

Defendant now contends that he was under arrest from the moment of his initial detention by the military authorities. This arrest, he contends, was without probable cause, therefore, the confessions should be suppressed as the product of an unlawful arrest.

A lawful arrest, whether warrant-less or pursuant to an arrest warrant, must be based upon probable cause. State v. Herbert, 351 So.2d 434 (La.1977); State v. Ranker, 343 So.2d 189 (La.1977).

Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Thomas, 349 So.2d 270 (La.1977); State v. Ranker, supra.

A confession which is obtained as the direct result of an arrest made without probable cause should be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). If the defendant challenges the admissibility of a confession on the ground that it was the result of an unlawful arrest without probable cause, the burden of showing admissibility is on the prosecution. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); State v. Edwards, 406 So.2d 1331 (La.1981); State v. Scott, 355 So.2d 231 (La.1977). The prosecution must establish that probable cause existed to arrest the defendant, or, if the arrest was unlawful, the prosecution must show the connection between the arrest and the subsequent confession was so attenuated that the confession could not properly be considered as a fruit of the illegal arrest. Wong Sun v. United States, supra; State v. Scott, supra.

Assuming that defendant was under arrest since his initial detention, we find Deputy Smith possessed sufficient information to establish probable cause for a war-rantless arrest. Deputy Smith testified the detention of defendant by military authorities was accomplished at his request. His action was based upon information received from James Kellison. Kellison claimed to be present when defendant and his companions admitted their involvement in several crimes, including the robbery and murder of a cab driver in Jackson, Mississippi, on August 23, 1980. By contacting the Jackson Police Department, Deputy Smith was able to establish that a cab driver had been robbed and murdered in Jackson on August 23. This independent corroboration of Kel-lison’s information was sufficient to establish his credibility and thereby create probable cause for the arrest of defendant. See State v. Rudolph, 369 So.2d 1320 (La.1979); State v. Paciera, 290 So.2d 681 (La.1974).

Moreover, even if the initial detention of defendant was accomplished without probable cause, defendant’s subsequent confessions were so attenuated they could not be considered as a product of the initial detention. Defendant was held by the military authorities beginning at approximately 11:00 a. m. He was not questioned until approximately 5:15 p. m., a period of at least six hours. During that time, defendant was advised of his rights three times. Additionally, the issuance of arrest warrants based on probable cause established from independent evidence was a sufficient intervening circumstance to validate the subsequent confessions. Furthermore, there was no flagrant official misconduct which would ordinarily mandate suppression of the confessions.

Finally, defendant contends that because of certain personality defects, he did not fully comprehend the nature of a waiver of his constitutional rights. Dr. David Post, a clinical psychologist, testified as to defendant’s personality at the hearing on the motions to suppress. Based on tests he had conducted, Dr. Post believed defendant had a diminished capacity to act rationally in a stressful situation. Furthermore, Dr. Post testified that the results of his examination indicate defendant is a dependent individual who has a strong psychological need for approval. The doctor was of the opinion that defendant is more susceptible to suggestion and coercion in a stressful situation. Defendant testified that from the moment of his initial confinement he was confused and did not fully understand his rights.

Before a confession can be introduced into evidence, the state must establish beyond a reasonable doubt that the inculpatory statement was freely and voluntarily made. State v. Cobbs, 350 So.2d 168 (La.1977).

In addition to proving the vol-untariness of a confession, the state must show that a confession obtained during a custodial interrogation was preceded by Miranda warnings and a valid waiver of the defendant’s constitutional rights. See State v. Payne, 338 So.2d 682 (La.1970). Whether the defendant understood his rights and intelligently waived them is a determination to be made on the facts of each case. State v. Alexander, 339 So.2d 818 (La.1976).

In the instant case, defendant was advised of his rights three times before the first custodial interrogation. Prior to both interrogations, defendant indicated that he understood his rights, and he signed a waiver of rights form. The evidence establishes that defendant’s confessions were not induced by force, threats, or promises. At the time of this occurrence defendant was a literate eighteen-year-old who had dropped out of high school only six weeks before graduation.

This court has held that low intelligence, illiteracy, and mental problems do not necessarily preclude a valid waiver of Miranda rights. State v. Gaines, 354 So.2d 548 (La.1978); State v. Payne, supra. We conclude the record establishes that defendant voluntarily, knowingly, and intelligently waived his rights.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, defendant asserts the trial court erred in refusing to allow Dr. Post to testify at trial as to defendant’s mental condition at the time of the robberies. Defendant did not put forth an insanity defense but chose instead to argue that he committed the robberies through the compulsion of George Tokman, defendant’s companion in crime. Dr. Post’s testimony was intended to show that defendant lacked the ability to make rational decisions under stress and to his susceptibility to manipulation and intimidation. Defendant contends this evidence is crucial to the establishment of his justification defense and to prove he lacked the criminal intent necessary to commit the offenses for which he was charged.

Under La.C.Cr.P. Article 651, evidence of a mental condition or defect is not admissible when the defendant fails to plead “not guilty and not guilty by reason of insanity.” Moreover, a mental defect or disorder short of insanity will not serve to negate specific intent and reduce the degree of a crime. State v. Wade, 375 So.2d 97 (La.1979); State v. Lecompte, 371 So.2d 239 (La.1979). Since defendant did not plead an insanity defense, the testimony of Dr. Post was properly excluded from trial.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment of error, defendant contends the trial court erred in allowing the state to cross-examine defendant concerning the murder of a cab driver in Jackson, Mississippi.

During the trial for the Dollar Store robbery, defendant chose to take the stand and testify. Defendant testified that one of his companions in crime, George Tokman, had a violent temper and that defendant was fearful of him. Defendant contended that the only reason he took part in the Dollar Store robbery was because of his fear of Tokman.

On cross-examination, the state attempted to question defendant about a murder allegedly committed by Tokman in defendant’s presence. After an objection by defense counsel, the jury was removed and the trial court determined the reason for this line of questioning. The state’s purpose was to show defendant was not intimidated by Tokman, but rather voluntarily associated with him even after Tokman had demonstrated his violent tendencies on several occasions. The trial court limited the questioning about the alleged murder as follows:

... I will not permit you to question him about his involvement — but whether or not he saw, limited to saw, this man do whatever you contend he did ...

After the jury was returned, the objection was overruled and the state asked the following question:

Mr. Leatherwood, had you not, prior to August 25, 1980, witnessed Mr. Tokman stab with a knife and kill a cab driver in Jackson, Mississippi?

Defendant objects to this question, contending it relates to evidence of another crime for which no Prieur notice was given. Defendant claims this question was, in reality, an effort to link defendant to a homicide in Mississippi.

Prieur notice is required only where the state intends to offer evidence of other offenses under the exceptions provided in La.R.S. 15:445 and 446. State v. Hatcher, 372 So.2d 1024 (La.1979). Here the questioning of defendant was not designed to elicit evidence for the purpose of any of these exceptions. Rather the state was attempting to rebut defendant’s contention that he was acting under the compulsion of Tokman when he committed the robbery at the Dollar Store. Thus, there is no reason to exclude this information since it is relevant to refute defendant’s claim of justification.

This assignment lacks merit.

DECREE

For the reasons assigned, the convictions and sentences are affirmed.

DENNIS, J., dissents for reasons assigned by him in State v. LeCompte, 371 So.2d 239, at 246 (La.1979).

       Judges O. E. Price of the Court of Appeal, Second Circuit, John C. Boutall, Court of Appeal, Fourth Circuit, and Fred W. Jones, Jr., Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis, and Jack C. Watson.

      . La.R.S. 14:18 provides in pertinent part:
      The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances: .. .
      (6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed.

      . La.C.Cr.P. Article 651.
      When a defendant is tried upon a plea of “not guilty”, evidence of insanity or mental defect at the time of the offense shall not be admissible.
      The defenses available under a combined plea of “not guilty and not guilty by reason of insanity” shall be tried together.

      . La.R.S. 15:445.
      In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.

      . La.R.S. 15:446.
      When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.


author: CARTER, Associate Justice Ad Hoc.

text:
    STATE of Louisiana v. Jerry BUTTNER.
    No. 81-KA-1939.
    Supreme Court of Louisiana.
    March 1, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. .Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, William O’Hara, James B. Letten, Jennifer A. Olinde, J. Kevin McNary, Asst. Dist. Attys., for plaintiff-appellee.
    Warren DeArgano and Dwight Doskey, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   CARTER, Associate Justice Ad Hoc.

Defendant, Jerry Buttner, was charged by a Bill of Information filed March 31, 1980, with Attempted Second Degree Murder, in violation of La.R.S. 14:27 and 14:30.-I. Defendant was arraigned on April 3, 1980, and entered a plea of not guilty to the charge of attempt to commit second degree murder on one Henry Melliet. On June 30, 1980, the State nolle prossed the original Bill of Information filed March 31, 1980, and filed a “direct bill” against the defendant charging him with attempted first degree murder in violation of La.R.S. 14:27 and 14:30. Defendant waived formal arraignment and entered a plea of not guilty. On February 18,1981, after a trial by a jury of twelve, defendant was found guilty as charged. On February 25, 1981, the court sentenced the defendant to serve twenty-five years at hard labor.

Defendant appeals on one assignment of error, i.e., the trial court erred in proceeding with the trial when no valid Bill of Information had been filed. We agree and reverse the conviction.

Article 384 of the Louisiana Code of Criminal Procedure provides: “An Information is a written accusation of crime made by the District Attorney and signed by him. It must be filed in open court in a court having jurisdiction to try the offense, or in the office of the clerk thereof.”

Article 691 of the Louisiana Code of Criminal Procedure provides “The District Attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court. The dismissal may be made orally by the district attorney in open court, or | by a written statement of the dismissal signed by the district attorney and filed with the clerk of court. The clerk of court shall cause the dismissal to be entered on' the minutes of the Court.” The record is clear that there was only one Bill of Information pertaining to this offense filed against the accused, namely that Bill of Information containing on its front the charge “attempted to commit second degree murder on one, HENRY MELIET” and on the back thereof, “VIO.R.S. 14:27(30). The court minutes of June 30, 1980, clearly reflect that this Bill of Information was nolle prossed. Unquestionably, under Article 691 of the Louisiana Code of Criminal Procedure, the Assistant District Attorney has the authority to make an oral motion to nolle prosse in open court and this was accomplished. This leaves the defendant having been arraigned, tried and convicted on a non-existent charge since no written Bill of Information had been filed against him. Article 384 of the Louisiana Code of Criminal Procedure clearly provides that an Information is a “written accusation of crime ...” Where there is no written accusation of crime there can be no valid arraignment, trial or conviction. Since there was no valid indictment and no written Bill of Information the fact that no objection was lodged is of no consequence. An error patent and discoverable upon the mere inspection of the pleadings and minutes may be asserted at any time, and even if not asserted would be noted ex propria motu. La.Code Crim.P. article 920(2), State v. Oliveaux, 302 So.2d 266 (La., 1974), State v. Fontenot, 256 La. 12, 235 So.2d 75 (1970). In conclusion, the defendant was apparently arraigned, tried, convicted and sentenced on a nonexistent charge. An oral Bill of Information is no Bill of Information at all. This error patent on the face of the record requires a reversal of the conviction.

For the above and foregoing reason the conviction is reversed and the sentence set aside.

REVERSED.

       Judges Melvin A. Shortess, Burrell J. Carter and Felix N. Savoie, Jr. of the First Circuit Court of Appeal participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Marcus and Dennis.

      . On the front of the Bill of Information the defendant is charged with . attempt to commit second degree murder of one HENRY MELIET. . and on the back of the Bill of Information the charge reads “VIO.R.S. 14:27(30)”.

      . The court minutes of June 30th state “Defendant appeared with counsel, Walter Sen-tenn, Esq. In case # 275,699, the State filed a direct bill against the defendant charging R.S. 14:27(30) and nolle prossed the original bill charging R.S. 14:27(30.1). The defendant waived the reading of the direct bill and pleaded not guilty and was granted ten days for pleadings.”

      . It is not clear to this court whether defendant was being tried for attempted second degree murder or attempted first degree murder. Apparently the trial judge, prosecutor and defense counsel assumed that the defendant was being tried for attempted second degree murder as will appear from the responsive verdict sheet which follows:
      STATE OF LOUISIANA CRIMINAL DISTRICT COURT
      VERSUS PARISH OF ORLEANS
      JERRY I. BUTTNER SECTION “F" NO. 275-699
      CHARGE IN BILL OF INFORMATION: ATTEMPTED SECOND DEGREE MURDER

        RESPONSIVE VERDICTS

      You may render any one of the following responsive verdicts:
      1. GUILTY AS CHARGED
      2. GUILTY OF ATTEMPTED MAN-
      SLAUGHTER
      3. GUILTY OF AGGRAVATED BATTERY
      4. NOT GUILTY
      You are to pay no attention whatsoever to the numerical order in which these verdicts are listed.
      (s) Oliver P. Schulingkamp
      OLIVER P. SCHULINGKAMP, JUDGE
      SECTION “F”,
      CRIMINAL DISTRICT COURT
      New Orleans, Louisiana
      February 18, 1981

      .Emphasis provided by the Court.

      . The Court has previously noted the contradiction between the front and the back of the Bill of Information.

      . See State v. Fontenot 256 La. 12, 235 So.2d 75 (1970).


author: WATSON, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. James FRISCO.
    No. 81-KA-1525.
    Supreme Court of Louisiana.
    March 2, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Richard Petre, Asst. Dist. Attys., for plaintiff-appel-lee.
    Dwight Doskey, and Numa Bertel, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   WATSON, Justice.

Defendant, James Frisco, was charged with armed robbery of Andrew Washington in violation of LSA-R.S. 14Í64. A motion to suppress the victim’s pretrial identification was denied. Evidence of an uncoun-seled pretrial lineup identification was introduced at trial. Defendant was convicted of armed robbery and sentenced to fifty years imprisonment.

The only issue on appeal is whether trial evidence of the uncounseled lineup identification constitutes harmless error.

FACTS

On January 26, 1981, at approximately 1:00 P.M., Andrew Washington, a driver of a Purolator Armored Car, was returning to the car with bags of cash and checks from a bank in the Lake Forest Plaza shopping center. An unknown man thrust a gun into his side and said: “Give it up.” The assailant then “snatched the bag”, shoved Washington and fired the gun at his face. (Tr. 28) Washington was struck in the left ear but not seriously injured. Washington chased the perpetrator with his own weapon and fired it, accidentally hitting a bystander. He could not catch the assailant.

A few days later, on February 2, 1981, Washington was shown six photographs of different people and picked out a photograph of Frisco. Although almost certain that this was the perpetrator, Washington said he would have to see him in person to be absolutely sure.

Frisco was arrested on February 3, 1981. Counsel was appointed prior to the preliminary examination on February 9, 1981. Frisco subsequently retained attorney Jay Zainey. When a physical lineup was conducted on February 19, Frisco did not have an attorney present.

The record does not reflect whether Frisco had an attorney when the lineup was conducted. Frisco said he did not know “whether they [his family] had hired you [Zainey]” at the time. (Motion to Suppress, p. 13) Frisco testified that he did request Zainey’s presence at the lineup. Ronald Richards, the detective supervising the lineup, did not recall whether defendant told him he had an attorney.

At the hearing on the motion to suppress, Washington said he was not given any instructions or suggestions by the police prior to the lineup. Washington said he and defendant were “chest to chest” and “face to face” for thirty to sixty seconds (Motion to Suppress, p. 6). He described defendant’s light beige suit, low hair style and narrow face. He did not recall whether or not defendant had a moustache. However, Washington was positive in his identification, testifying:

“Because he was so close to me, I will never forget his face, if you call me to testify a year from now I won’t forget anybody who tried to take my life, man.” (Motion to Suppress, p. 9)

At trial Washington gave a detailed description of his assailant’s color, height, weight, build, narrow face, light beige three piece suit, brown tie, low hairstyle, medium to heavy eyebrows and mustache. Washington pointed out the defendant in the courtroom and said there was no doubt in his mind about the identification. The State then asked Washington about the photographic and physical lineups. Washington stated that he was not completely sure about the picture selection because the man in the picture had a much heavier mustache. He was certain about his choice in the physical lineup and said no one suggested his selection or even talked to him at the physical lineup. Washington gestured toward the defendant as the man he had identified. Washington then testified that he could identify the man who robbed him solely from his recollection of the day he was robbed and did so.

Defendant attempted to establish an alibi defense. Ms. Adrian Williams, his neighbor, testified that Frisco spent almost the entire morning and afternoon of January 26 watching soap operas at her house. He was not wearing a suit and left only to pick up some diapers about 10:30 or 11:00 A.M. He was gone an hour or an hour and a half. She remembered that day because her mother had called about the robbery while James Frisco was there. The call came around 1:00 or 1:30 P.M., either during “One Life to Live” or “General Hospital”. Both programs are on Channel 8. Frisco had missed work that day, which was a Monday or a Tuesday. When her mother called, Mrs. Williams already knew about the robbery from the T.V. news.

Frisco testified that he missed work the day of the robbery because his alarm clock malfunctioned. While watching the soap operas with Ms. Williams, he saw a news break or bulletin about a Purolator Armored Car guard being wounded in an armed robbery.

Jim Kemp, the news director of Channel 8, testified in rebuttal that the station did not have a news bulletin or flash about the robbery on the afternoon it occurred.

Trial was held on March 23, 1981, just over a month after the physical lineup.

LAW

A defendant has the right to have counsel present at a physical lineup after adversary judicial proceedings are initiated. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Art. 1, § 13, La. Const, of 1974. A preliminary examination is an “adversary judicial criminal proceeding”. Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); LSA-C. Cr.P. art. 293; State v. Friddle, 396 So.2d 1242 (La., 1981). After the right to counsel attaches, trial evidence of an uncounseled pretrial lineup identification can constitute harmless error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Moore, supra. An error is harmless if there is little likelihood that it would have changed the result. It must be clear beyond a reasonable doubt that the constitutional error did not contribute to the conviction. Chapman, supra; State v. Gibson, 391 So.2d 421 (La., 1980). When the courtroom identification is reliable and based on an independent source, it is unlikely that the pretrial identification affected the jury’s verdict, and the error is harmless. U.S. ex rel. Moore v. People of State of Ill., 577 F.2d 411 (1978).

A courtroom identification with an independent origin is purged of its primary taint. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Factors which can establish an independent basis for the identification include: the circumstances existing when the witness saw the criminal; the length and extent of the observation; lack of discrepancies between the initial description and the defendant; absence of conflicting identifications; photographic selection prior to the physical lineup; the certainty of the witness; a short interval between the crime and the lineup; prior acquaintance of the parties; and conduct of the lineup in a proper manner. Wade, supra; State v. Frank, 344 So.2d 1039 (La., 1977); State v. Kenner, 384 So.2d 413 (La., 1980); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

CONCLUSION

There is no indication that the lineup procedure used here was suggestive. This was not a one-on-one confrontation. Compare State v. Kenner, supra. Washington testified that he viewed the lineup without any coaching or hints from the police.

Washington gave a convincing explanation for remembering Frisco’s face; Washington feared for his life. When the bullet was fired at his face, Washington had a surpassing reason for memorizing the face of the gun man. Washington’s description of Frisco was detailed and indicated a close observation. The crime occurred near midday. In view of the time, the proximity of the two, and the riveting effect of Frisco’s gun, Washington should have been able to identify his assailant. The period of observation was not long. However, the identification was unequivocal both before and during trial. Washington was never confused or doubtful. Compare State v. Frank, supra. Washington selected Frisco’s photograph a few days after the crime and identified him in the physical lineup only two weeks later.

The courtroom identification by Washington was reliable and based on an independent source. When Frisco’s alibi evidence was rebutted, the jury could have had little question about his guilt. It is clear beyond a reasonable doubt that the constitutional error in admitting trial evidence of the uncounseled pretrial identification did not contribute to Frisco’s conviction. Chapman, supra. The error is, therefore, harmless. Moore, supra; Chapman, supra.

For the foregoing reasons, the conviction and sentence of defendant, James Frisco, are affirmed.

AFFIRMED.

CALOGERO, J., concurs.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

In this case evidence of a pretrial identification of the defendant as the culprit was introduced at trial. By its failure to distinguish this situation from one in which no evidence of a pretrial lineup was introduced, the majority has fallen into error.

In Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977), the United States Supreme Court held that the defendant’s Sixth Amendment right to counsel attached at the time of his preliminary hearing, which marked the initiation of adversary judicial criminal proceedings against him, that the state should not have been allowed to buttress its case-in-chief at the trial by introducing evidence of pretrial identification made in violation of the defendant’s Sixth Amendment rights, regardless of whether there was an independent source for the victim’s identification of the defendant, and the case would be remanded for a determination of whether the failure to exclude the evidence was harmless error.

The Court in Moore distinguished the cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). In Wade witnesses to a robbery who had identified the defendant at the uncounseled pretrial lineup testified at trial on direct examination by the prosecution that defendant was the man who had committed the robbery. The prosecution did not elicit from the witnesses the fact that they had identified the defendant at the pretrial lineup. The Court held that this testimony should have been excluded unless the prosecution could establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification. 388 U.S. at 240, 87 S.Ct. 1926, at 1939, 18 L.Ed.2d 1149.

In Gilbert the prosecution, in its case-in-chief, elicited testimony that witnesses had identified the accused at an uncounseled pretrial lineup. The Court recognized that such testimony would “enhance the impact of a witness’ in court identification on the jury and seriously aggravate whatever derogation exists of the accused’s right to a fair trial.” 388 U.S. 263, at 273, 87 S.Ct. 1951, at 1957, 18 L.Ed.2d 1178, at 1187. Because that testimony was the direct result of the illegal lineup come at by exploitation of the primary illegality (Wong Sun v. United States), the high court held that the prosecution was not entitled to an opportunity to show that the testimony had an independent source. Id., at 272-283, 87 S.Ct. 1951, at 1956-1959, 18 L.Ed.2d 1178; see also, Wade, supra, 388 U.S. at 240 n.32, 87 S.Ct. 1926, at 1939, 18 L.Ed.2d 1149. This exclusionary rule was applied in the belief that such a sanction would help assure that the accused’s constitutional right to the presence of his counsel at the critical lineup will be respected by the law enforcement authorities. Gilbert, supra, 388 U.S. at 273, 87 S.Ct. 1951, at 1957, 18 L.Ed.2d 1178.

The majority opinion finds that the courtroom identification by the victim of the robbery was reliable and based on an independent source. The prosecution in this case elicited testimony in its case-in-chief that the victim had identified the accused at a pretrial lineup. The witness was questioned about his identification made at the pretrial lineup immediately before making the in court identification:

Q. I’m going to show you a photograph which I will mark or which has been marked as S-l for identification purposes. Does this photograph accurately depict the lineup which you attended on February 19th?
A. Yes, it does.
Q. Now, sir, as far as the six people featured in this lineup, do you see the person in the lineup who robbed you on January 26th?
A. Yes, I do.
Q. What’s the number of the person?
A. Number one.
Q. What is the number of the person whom you identified on February 19th?
A. Number one.
Q. Do you see number one in Court?
A. I do.
Q. Would you point to him please?
A. Right there (indicating).

In Wade, supra, the prosecution did not elicit information from the witnesses regarding their pretrial identification of defendant and, therefore, was permitted to justify the admission of the in-court identification by showing with clear and convincing evidence that the in-court identifications were based on observations of the suspect other than the lineup identification. In cases such as the one at hand, however, where the prosecution buttressed its casein-chief by introducing evidence of a pretrial identification made in violation of the accused’s Sixth Amendment rights, even if the state can prove that the pretrial identification had an independent source, the identification is inadmissible. Because the prosecution made use of the pretrial lineup in its case-in-chief, the petitioner in this case is entitled to the benefit of the strict rule of Gilbert. Gilbert v. California, supra; Moore v. Illinois, supra. The only determination to be made by us as a reviewing court, therefore, is not whether the in-court identification had an independent basis, but rather whether failure to exclude the identifications was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967). See Moore v. Illinois, and State v. Gibson, 391 So.2d 421 (La.1980).

In determining whether an error involving federal or state constitutional rights is harmless, the test to be applied is “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and that the “court must be able to declare a belief that the error was harmless beyond a reasonable doubt.” Chapman v. California, supra; State v. Gibson, supra.

The pretrial lineup identification of the defendant by the victim was mentioned in front of the jury at least five separate times. Even the in-court identification of the victim was inextricably linked to the ouCof-court identification at the lineup conducted in violation of defendant’s Sixth Amendment rights. The only other identification of the defendant as the robber was that of the victim who selected a picture of the defendant out of a photograph lineup before the initiation of the adversary process which triggers the defendant’s Sixth Amendment right to counsel. Although admissible, this identification was tentative. The victim testified before the jury that he couldn’t be certain of this identification because “the man at the time didn’t have a heavy mustache like that photograph showed.” A witness for the defense testified that she had known the defendant for about two years and that Frisco had had his mustache for at least the last two years, and that it always looked like it did at the time of the trial.

Considering the tentative nature of the one admissible identification of the defendant and the numerous occasions on which the jury was informed and reminded of the unconstitutional identification made at the lineup, there is a reasonable possibility that the evidence complained of contributed to the conviction and the error cannot be declared harmless beyond a reasonable doubt. Moore, supra; Chapman, supra; Gibson, supra.

      . LSA-R.S. 14:64 provides:
      “A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
      “B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Jerome P. PRIESTLEY.
    No. 81-KA-1834.
    Supreme Court of Louisiana.
    March 12, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., Abbott J. Reeves and John L. Peytavin, Asst. Dist. Attys., for plaintiff-appellee.
    Wilbur W. Reynaud, Lutcher, Indigent Defender Board, Michael K. Heltz, Gramer-cy, for defendant-appellant.
   PER CURIAM.

Affirmed.

LEMMON, J., concurs. All assignments of error are more appropriately raised in a post conviction proceeding, in which defendant can present evidence in support of his complaint.


text:
    William BATSON v. CHEROKEE BEACH AND CAMPGROUNDS, INC., et al.
    No. 81-C-3095.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re William Batson, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. 407 So.2d 766.

Granted. Appeal reinstated. Walker v. Jones, 253 La. 908, 221 So.2d 44 (1969).

DENNIS and BLANCHE, JJ., would grant and set for argument.


text:
    STATE of Louisiana v. Charles W. MORRIS, Sr.
    No. 81-K-3067.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Charles W. Morris, Sr., applying for writs of review, prohibition, mandamus and for a stay order. Parish of East Baton Rouge. No. 2-81-627.

Writ granted. The trial court’s refusal to accept defendant’s underlying conviction for the 1978 DWI charge (ticket # 31471) is reversed. State v. Jones, 404 So.2d 1192 (La.1981), upon which the judge relied is not applicable here because that decision by its terms, applies prospectively only, or to cases pending in this Court at the time the decision was rendered, and the present prosecution was not pending in this Court at the time Jones was rendered. Defendant’s plea to the current DWI 3 charge, entered with a Crosby [State v. Crosby, La., 338 So.2d 584] reservation, is set aside and the case remanded to the trial court for further proceedings.


text:
    STATE of Louisiana v. Nina WAGNER.
    No. 81-K-2676.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Nina Wagner, applying for remedial writs. Parish of East Baton Rouge. No. 7-79-448.

Granted. The language employed at sentencing by the sentencing judge is ambiguous. Accordingly we interpret it, favorably to defendant, as a suspension of the imposition of sentence and remand the case, instructing the present trial judge to exercise the discretion afforded him by La.C.Cr.P. art. 894(B).


text:
    STATE of Louisiana ex rel. Wendell A. MARTIN v. Judge Jerome WINSBERG, Section “C” Criminal District Court, Parish of Orleans.
    No. 81-KH-2590.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Wendell A. Martin, applying for writ of mandamus. Parish of Orleans. No. 263-888.

Denied. Transcript of hearing on motion for new trial has been furnished to defense counsel.


text:
    STATE of Louisiana ex rel. Lawrence ADAMS v. Judge Charles R. WARD.
    No. 81-KH-1038.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Lawrence Adams, applying for writs of mandamus. Parish of Orleans. No. 241-468.

Granted. Trial court is ordered to act or rule on relator’s petition within 30 days.


text:
    STATE of Louisiana ex rel. Alex ELAIRE v. Frank C. BLACKBURN, Warden.
    No. 81-KH-2629.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Alex Elaire, applying for remedial writs. Parish of Avoyelles. No. 41288.

Writ granted.


text:
    STATE of Louisiana ex rel. Melvin BOWMAN v. COURT REPORTER DIV., A CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-2808.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Melvin Bowman, applying for writ of mandamus. Parish of Orleans. No. 233-076.

Writ granted. The trial judge is ordered to furnish relator with a copy of his Boykin Transcript.


text:
    STATE of Louisiana ex rel. Nathaniel LAMBERO v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2908.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Nathaniel Lambero, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of East Baton Rouge. No. 4-79-198.

Granted. An evidentiary hearing is hereby ordered.


text:
    SUCCESSION OF Viola Alexander CLIVENS.
    No. 82-C-0125.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Dorothy Clivens Van tress, applying for writ of certiorari, or review. Court of Appeal, Fourth Circuit. Civil District Court. Parish of Orleans. No. 12669.

Granted.


text:
    STATE of Louisiana, ex rel. Thomas E. BAILEY, Jr. v. 31ST JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON DAVIS.
    No. 82-KH-0175.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Thomas E. Bailey, Jr., applying for remedial writs. Parish of Jefferson Davis. No. 594-79.

Granted. Trial judge is ordered to rule on July 16, 1981 motion.


text:
    James Edward BAGENTS v. Peggy Jean BAGENTS.
    No. 82-C-0183.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Peggy Jean Bagents, applying for certiorari, or review. Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 14459. .

Writ granted.


text:
    STATE of Louisiana v. Gary Loyd VAUGHN.
    No. 82-K-0185.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Gary Loyd Vaughn, applying for writs of certiorari review, prohibition or mandamus. Parish of Natchitoches. No. 62324.

Granted. Consolidate with the appeal.


text:
    Charlotte Suire DAVIS v. Edson L. DAVIS.
    No. 82-C-0268.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Charlotte Suire Davis, applying for remedial writs. Parish of Jefferson. No. 259-106.

Writ granted.


text:
    STATE of Louisiana v. Aaron Harold BRATTON, Jr.
    No. 82-O-0055.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re State of Louisiana, through the Asst. District Atty., Kermitt M. Simmons, applying for motion to dismiss appeal. Parish of Winn. No. 25558.

Motion granted; writ denied. Defendant’s motion for out-of-time appeal is granted. State’s application is dismissed as moot.


text:
    Mayor Joe SAMPITE v. NATCHITOCHES MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD, et al.
    No. 82-C-0282.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Mayor Joe Sampite, applying for writ of certiorari, review, remedial and stay order. Third Circuit, Court of Appeal. Parish of Natchitoches. No. 8861.

Writ denied. Stay order set aside.


text:
    STATE of Louisiana, ex rel. John Brad LACY v. Honorable Rudolph F. BECKER, Judge, Section “E” Orleans Criminal District Court.
    No. 81-KH-0597.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re John Brad Lacy, applying for writ of mandamus. Parish of Orleans. No. 244-762.

Denied. Moot.


text:
    STATE of Louisiana ex rel. William B. TAYLOR v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1583.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re William B. Taylor, applying for writs of remedial writ. Parish of Orleans. No. 261-821.

Denied. Moot.


text:
    STATE of Louisiana v. Derain A. DANIELS.
    No. 81-K-2469.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Derain A. Daniels, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 81-298.

Writ denied. Relator has an adequate remedy on appeal.


text:
    STATE of Louisiana v. Derain A. DANIELS.
    No. 81-K-2470.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Derain A. Daniels, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 80-3327.

Writ denied. Relator has an adequate remedy on appeal.


text:
    STATE of Louisiana ex rel. Lionel BOULIEU v. Mr. C. Paul PHELPS, Secretary, Louisiana Department of Corrections.
    No. 81-KH-2726.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Lionel Boulieu, applying for remedial writs. Parish of Orleans. No. 255-698.

Denied. Moot.


text:
    STATE of Louisiana ex rel. James M. LEWIS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-2794.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re James M. Lewis, applying for writ of certiorari, prohibition and mandamus. Parish of Claiborne. Nos. 10420 and 10421.

Denied.


text:
    STATE of Louisiana ex rel. Mack Charles GAY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary and 3rd Judicial District Court, Parish of Lincoln.
    No. 81-KH-2886.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Mack Charles Gay, applying for remedial writs. Parish of Lincoln. No. 24095.

Denied.


text:
    STATE of Louisiana, ex rel. Roderick A. BLUNT v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-2892.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Roderick A. Blunt, applying for writ of certiorari of review. Parish of Orleans. No. 279-041.

Denied.


text:
    STATE of Louisiana, ex rel. Clarence CELESTINE v. Ross MAGGIO, Warden.
    No. 81-KH-2906.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Clarence Celestine, applying for remedial writs. Parish of Lafayette. Nos. 42590, 42654 and 43052.

Denied.


text:
    STATE of Louisiana, ex rel. Robert Ernest PAUL v. STATE of Louisiana.
    No. 81-KH-2920.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Robert Ernest Paul, applying for supervisory .writs. Parish of Terrebonne. No. 86622.

Writ denied.


text:
    STATE of Louisiana, ex rel. Reuben TACKNO and Milton Armstead v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-2921.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Reuben Tackno and Milton Arm-stead, applying for remedial writs. Parish of Orleans. No. 249-185.

Denied.

LEMMON, J., would grant.


text:
    STATE of Louisiana, ex rel. John Charles STEIN, Jr. v. Frank C. BLACKBURN, Warden, et al. Louisiana State Penitentiary.
    No. 81-KH-2922.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re John Charles Stein, Jr., applying for writ of habeas corpus, and motion for supervisory writs. Parish of Caddo. Nos. 94-047, 94-048 and 99-012-HC.

Denied.


text:
    STATE of Louisiana, ex rel. John JACKSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2936.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re John Jackson, applying for writs of certiorari, and review. Parish of Orleans. No. 254-536.

Writ denied.

CALOGERO, J., would grant.


text:
    STATE of Louisiana, ex rel. Mack E. FORBES v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-2957.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Mack E. Forbes, applying for writs of certiorari, habeas corpus and mandamus. Caddo Parish. No. 111400-HC.

Denied.


text:
    STATE of Louisiana, ex rel. Ulysses ROBERSON v. STATE of Louisiana.
    No. 81-KH-2959.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Ulysses Roberson, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Bossier. No. 27239.

Writ denied.


text:
    STATE of Louisiana, ex rel. Roderick DAVIS v. STATE of Louisiana.
    No. 81-KH-2973.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
    Reconsideration Denied May 17, 1982.
   In re Roderick Davis, applying for remedial writs. Natchitoches Parish. Nos. 39525, 39526 and 39527.

Denied.


text:
    STATE of Louisiana, ex rel. Warren MASSEY v. Honorable Rudolph F. BECKER, III, Criminal District Court, Section “E”, Parish of Orleans, et al.
    No. 81-KH-2982.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Warren Massey, applying for writs of certiorari, supervisory and review. Parish of Orleans. No. 270-367.

Denied.


text:
    STATE of Louisiana, ex rel. Ezzard BOWMAN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2996.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Ezzard Bowman, applying for writs of certiorari, prohibition, and mandamus. Parish of East Baton Rouge. No. 10 — 77— 562, Section II.

Denied.


text:
    STATE of Louisiana, ex rel. Michael DREWS v. N. Burl CAIN, Warden, Dixon Correctional Institute.
    No. 81-KH-3008.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Michael Drews, applying for writ of certiorari. Parish of Orleans. No. 270-569.

Writ denied.


text:
    STATE of Louisiana, ex rel. Michael McCAFFERY v. COURT REPORTER, 21ST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON, et al.
    No. 81-KH-3170.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Michael McCaffery, applying for writ of mandamus. Parish of Livingston. No. 3135.

Denied. Moot.


text:
    STATE of Louisiana v. John WATLINGTON.
    No. 82-K-0026.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re John Watlington, applying for writ of certiorari. Parish of Tangipahoa. Nos. C-41341, C-41342 and C-41343.

Denied.


text:
    STATE of Louisiana v. James N. PRUITT.
    No. 82-K-0042.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re James N. Pruitt, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 6-81-1087.

Denied.

DENNIS, J., to grant.


text:
    STATE of Louisiana, ex rel. Wynn L. MARTIN v. Honorable Charles R. WARD, Judge, Criminal District Court Section “A” State of Louisiana.
    No. 82-KH-0052.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Wynn L. Martin, applying for remedial writs. Parish of Orleans. No. 279-973.

Writ denied.


text:
    SUCCESSION OF Edna LACROIX, Widow of Walter F. Poynot.
    No. 82-C-0060.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re William M. Duett, Henry Guidry, Harry R. Cabral, Jr., and Arthur C. Reuter, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12415.

Denied.

MARCUS, J., would grant.


text:
    STATE of Louisiana, ex rel. Charles A. STEWART v. Honorable M. BRANIFF, Judge Presiding.
    No. 82-KH-0105.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Charles A. Stewart, applying for writ of mandamus. Criminal District Court. Parish of Orleans. No. 252-328.

Denied.


text:
    Mary WEAVER, Divorced Wife of Peter Weaver v. WINN DIXIE OF LOUISIANA, INC.
    No. 82-C-0112.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Winn Dixie of Louisiana, Inc., applying for writ of certiorari or review. Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12362.

Denied.