author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Stephen RAGSDALE.
    No. 65764.
    Supreme Court of Louisiana.
    March 3, 1980.

      Jeanette G. Garrett, New Orleans, Caddo Parish Indigent Defender Office, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant, Stephen Ragsdale, was charged by bill of information with possession of methamphetamine in violation of La.R.S. 40:967. He pleaded not guilty and filed a motion to suppress the introduction of the methamphetamine into evidence on the basis that it was obtained by means of an illegal search and seizure. Following the trial court’s denial of the motion to suppress, defendant withdrew his plea of not guilty and entered a plea of guilty, reserving his right to appeal the trial court’s ruling on the motion to suppress. The trial judge subsequently sentenced defendant to eighteen months at hard labor.

I. FACTS.

The following facts were ascertained at the hearing on the motion to suppress. In 1977, the defendant was' convicted of possession of marijuana with intent to distribute. His sentence of five years was suspended, and he was placed on probation on the condition that he undergo drug treatment at a facility in New Orleans. Defendant absconded, and as a result, a warrant was issued for his arrest.

In September, 1978, a confidential informer told a Probation Officer Wyche that defendant had a girlfriend named Cindy Light who lived in Shreveport. Ms. Light was interviewed and admitted knowing defendant, but claimed she no longer associated with him.

In April, 1979, Probation Officer Wyche again spoke with the confidential informer. The informer stated that the defendant was staying in Bossier City with a Mr. Hawthorne. On the following day, the informer told Wyche that defendant might be staying at the Southside Villa Apartments with a man named “Scott” who drove a red, dirty-looking Volkswagen.

The evening, Probation Officer Wyche and plain-clothes Shreveport policemen followed Ms. Light from her place of employment. She drove past the Southside Villa Apartments into a housing subdivision, doubled back, and entered the Southside Villa Apartments. None of the officers saw what apartment she entered.

After this observation, Detective Wyche, Probation Officer Wyche’s brother, spoke with the confidential informer at an unspecified location. The informer again stated that defendant was possibly staying at the Southside Villa Apartments with a friend named “Scott” who drove a red Volkswagen. The police officers subsequently searched for and found a red Volkswagen in the parking lot. A check on the Volkswagen’s registration showed that it belonged to a Scott Geist, who resided in the Southside Villa Apartments. They then obtained Scott Geist’s apartment number from the apartment manager.

The officers decided to knock on Scott Geist’s apartment door, but first sent Officer McGaha to guard the rear exit because the confidential informer had said defendant might have a sawed-off shotgun, and the officers feared a violent confrontation. The rear door of the apartment opened onto a patio which was completely enclosed by a wooden fence with a wooden gate. Officer McGaha testified that he lifted the gate’s latch and entered into the patio purportedly because he was afraid he would be in danger if someone from the apartment entered the patio and saw him outside the fence. Once inside the patio, McGaha was able to see through an opening in the kitchen window’s curtains and into the apartment. Based upon his familiarity with defendant’s photograph, McGaha recognized the defendant sitting in the living room with Ms. Light. McGaha observed the defendant run from the living room area when the officers at the front knocked on the apartment’s front door. McGaha left his post and informed the other officers, who were outside the door, of his observations.

Awakened by the officers’ knocking, Scott Geist opened the front door and they entered the apartment. At the time, all officers had their guns drawn. After entering the apartment, the officers noticed drugs, which appeared to be methamphetamine, and drug paraphernalia openly displayed on the living room coffee table. Defective Wyche searched for the defendant and found him hiding in the bathroom behind the shower curtain. Wyche noticed two small, bloody puncture marks on defendant’s forearm. A syringe was found on the bathroom floor.

The officers brought the defendant, Scott Geist, Ms. Light and a Ms. Devanguardia, who was also in the apartment, into the living room and advised them of their Miranda rights. A narcotics agent, Robert Scaif, arrived between ten and thirty minutes after the initial entry and again advised the four suspects of their rights. Scaif and another officer then took Scott Geist into the bedroom and requested that he sign a consent to search form. Geist agreed after he was told “It didn’t make any difference, I was going to search the place anyhow ... I’d just get a search warrant.” During the subsequent search, police officers discovered marijuana seeds in a nightstand drawer, and more “crystal meth” in the refrigerator’s freezer compartment. Based upon these facts, the trial court denied defendant’s motion to suppress.

II. REQUIREMENTS FOR LEGAL SEIZURE OF THE METHAMPHETAMINE.

Defense counsel contends the methamphetamine was seized by means of an illegal search because the policemen’s initial entry into Scott Geist’s apartment to effect defendant’s arrest was not based upon probable cause to believe defendant would be found within the apartment. It is clear that if the officers legally entered the apartment, the methamphetamine on the coffee table was properly seized because it was in plain view. Coolidge v. N. H., 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed. 564.(1971); State v. Pomes, 376 So.2d 133 (La.1979).

The question of . what requirements must be met before policemen may conduct a search of a third person’s private home for a suspect for whom they have a valid arrest warrant is res nova in Louisiana. Article 224 of the Louisiana Code of Criminal Procedure provides:

“In order to make an arrest, a peace officer, who has announced his authority and purpose, may break open an outer or inner door or window of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, where the person to be arrested is or is reasonably believed to be, if he is refused or otherwise obstructed from admittance. The peace officer need not announce his authority and purpose when to do so would imperil the arrest.” (Emphasis added).

The United States and Louisiana Constitutions prohibit unreasonable searches and seizures. La.Const. art. 1, § 5 (1974); U.S. Const, amend. 4. As a general rule, police searches must be based upon probable cause. Draper v. U.S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Culotta, 343 So.2d 977 (La.1976); State v. Morgan, 376 So.2d 99 (La.1979); State v. Hearn, 340 So.2d 1365 (La.1976)

Probable cause for a search exists when facts within the officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a reasonable man in the belief that the place to be searched will contain the object of the search. State v. Boneventure (and Buchanan), 374 So.2d 1238 (La.1979); State v. Morgan, supra. Also, as a general rule, a warrantless search is, per se, unreasonable absent one of the well-delineated exceptions. State v. Lain, 347 So.2d 167 (La.1977); State v. Aguillard, 357 So.2d 535 (La.1978); Coolidge v. N. H., supra. The warrant is required to insure a prior judicial determination of probable cause for the search. Schmerber v. Calif., 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Without deciding whether police must obtain a search warrant prior to searching a third person’s home for a suspect for whom they have a valid arrest warrant , we con-elude that the entry into Geist’s residence was illegal because the officers did not have a reasonable belief, or probable cause to believe, that the defendant would be found in Geist’s home as is required by C.Cr.P. art. 224 and by the Louisiana and United States Constitutional provisions prohibiting unreasonable searches and seizures. La.Const. art. 1, § 5 (1974); U.S.Const, amend. 4. Consequently, the methamphetamine must be excluded from introduction into evidence. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 1081 (1961); Weeks v. U.S. 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); State v. Matthews, 366 So.2d 1348 (La.1978); State v. Davis, 359 So.2d 986 (La.1978). Any other result raises the possibility of police use of the arrest warrant, with no limitation, as carte blanche to search any residence in which they may believe a suspect is hiding. Such arbitrary invasion of the privacy of a person’s home is exactly what the constitutional prohibitions of unreasonable searches seeks to prevent. State v. Jones, 358 So.2d 1257 (La.1978).

III. DETERMINATION OF PROBABLE CAUSE FOR THE ENTRY.

It is well-settled that a finding of probable cause may be based upon the hearsay allegations of a confidential informer. State v. Paciera, 290 So.2d 681 (La.1974); State v. Wilkens, 364 So.2d 934 (La.1978); State v. Wilson, 366 So.2d 1328 (La.1978). In Paciera, this Court held:

“If we can deduce a rule from these cases, it is this: The affidavit submitted to the magistrate may be based entirely upon hearsay, but, if so, it must set forth underlying circumstances and details sufficient to provide a substantial factual basis by which the magistrate might find reliable both the informant and the information given by him. Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the credibility of the information reported include (a) direct personal observation by the informant, or (b),. if the informantion came indirectly to the informant, the reasons in sufficient factual detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly-obtained information,” (State v. Paciera, 290 So.2d at 685-686). See also State v. Smith, 350 So.2d 1178 (La.1977); State v. Linkletter, 286 So.2d 321 (La.1973).

These same principles should apply in cases where hearsay statements of a confidential informer form the basis of a warrantless search of a third party’s residence for a suspect for which policemen have an arrest warrant.

In the instant case, Probation Officer Wyche and Detective Wyche testified that they did not know how the informer obtained his information. They did not know if the information was based upon the informer’s direct personal observations or upon what someone had told him. The naked assertion of the informer was the only basis for the officer’s belief that the defendant was in Scott Geist’s apartment.

Although the officer’s independent investigation corroborated some of the facts in the informer’s story (e. g. that Ms. Light had associated with the defendant and that a person named Scott lived in Southside Villa Apartments and owned a red Volkswagen), it is important to note that none of the information about the defendant’s relationship with Scott Geist was corroborated by police investigation. We believe that the informer’s unsupported statements concerning defendant’s location could not support a reasonable belief that defendant could be found in Scott Geist’s apartment because the officers had no way of evaluating the reliability of the informer’s information. State v. Paciera, supra.

The state argues that Officer McGaha’s observation from inside the patio of the defendant sitting in Geist’s apartment gave the officers reasonable grounds for entry into the apartment to arrest the defendant. Resolution of this question turns on whether McGaha’s entry into the patio violated any reasonable expectation of privacy of the defendant which is constitutionally protected. If defendant had a reasonable expectation of privacy, the constitutional provisions against unreasonable searches, La. Const, art. 1, § 5 (1974), U.S.Const. amend. 4, protect against this intrusion because it would be a search conducted without a warrant and without probable cause. Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Lamartiniere, 362 So.2d 526 (La.1978).

The test for determining whether one has a reasonable expectation of privacy is not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable. State v. Wilbourn, 364 So.2d 995 (La.1978); State v. Dupuis, 378 So.2d 934 (La.1979).

The patio which Officer McGaha entered was completely enclosed by a wooden fence. The slats which made up the fence were close enough to each other and tall enough so that the fence completely blocked any view into the apartment itself. In addition, closed curtains covered the window facing into the patio except for a narrow gap, the width of which is in dispute, through which the officer observed the defendant.

We conclude the defendant could reasonably have expected the enclosed patio to assure his privacy from public view. The officer’s entry into that patio without a warrant and without probable cause violated defendant’s constitutional right to privacy. La.Const. art. 1, § 5 (1974); U.S.Const. amend. 4; State v. Lamartiniere, supra; State v. Wilbourn, supra. Consequently, his observations from inside the patio cannot be the basis for probable cause to enter the apartment to arrest the defendant. State v. Lamartiniere, supra.

IV. VALIDITY OF GEIST’S “CONSENT”.

The state also contends that even given an illegal entry into the apartment, the methamphetamine was properly seized because Scott Geist signed a consent to search form. Defense counsel counters that the consent was coerced.

Valid consent searches constitute one well-recognized exception to the requirement of a valid search warrant, and also to the requirement of probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Angel, 356 So.2d 986 (La.1978). Where a consent to search is obtained after an illegal detention or entry the issue is whether the post-arrest consent is the product of free will or the result of exploitation of the previous illegality. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); State v. Mitchell, 360 So.2d 189 (La.1978). In deciding this issue, we have previously stated that:

“[T]he court should take into account not only whether the governmental officers adequately informed the accused that he need not comply with their request, but also the temporal proximity between the arrest and the act (consent) allegedly to be coerced, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.” State v. Mitchell, supra, at 360 So.2d 191.

At the time Scott Geist signed the consent form, approximately thirty minutes had elapsed since the initial police entry. He was already under arrest for drugs and drug paraphernalia found on the coffee table. This arrest followed an illegal entry into his apartment without probable cause and in violation of his constitutional right to be protected against unreasonable searches and seizures. While several officers stood as armed guards of the other suspects, two armed officers took Geist into the bedroom and requested that he sign the consent to search form. He was told that his failure to do so would not prevent the search since the officers would merely procure a search warrant. Given the fact that Geist was already under arrest for possession of drugs found as a result of an illegal entry into his home and given that he was told that the officers could obtain a warrant regardless of his consent, we believe that Geist’s consent to search was coerced through exploitation of the prior illegal entry.

DECREE

Accordingly, the conviction and sentence is reversed, the motion to suppress is granted, and the case is remanded for a new trial in accordance with law.

REVERSED AND REMANDED.

WATSON, J., dissents.

       Chief Judge PAUL B. LANDRY, retired, participated in this decision as an Associate Justice Ad Hoc.

      . Recent Federal cases have dealt with this issue. The Third Circuit has indicated that absent exigent circumstances, a search warrant must be obtained before searching a third party’s home for a suspect for whom a valid arrest warrant has been issued. Government of Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974), cert. denied 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975). The District of Columbia Circuit has reasoned that a search warrant is not needed as long as there is probable cause to believe the suspect is in the third party’s residence. U.S. v. Brown, 151 U.S.App.D.C. 365, 467 F.2d 419 (U.S.App.D.C. 1972). However, the Court in that case discussed exigent circumstances in its determination of the existence of probable cause. The Fifth Circuit has held that “in addition to probable cause to believe that the suspect is inside, there must be exigent circumstances to support an entry [without a search warrant] to make a warranted arrest in a third party’s home.” However, the Court concluded that, although the war-rantless entry in that case was illegal, the drugs seized after the entry were still admissible into evidence because the arrest by warrant was valid. The drugs, which were in ‘plain view’ were seized in a warrantless search incident to a lawful arrest. U.S. v. Cravero, 545 F.2d 406 (5th Cir. 1976).


source: Caselaw Access Project

author: PAUL B. LANDRY, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. Phililer JOHNSON.
    No. 65816.
    Supreme Court of Louisiana.
    March 3, 1980.
    W. Orie Hunter, III, Johnston, Thornton, Dawson & Hunter, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Richard S. Feinberg, Asst. Dist. Atty., for plaintiff-respondent.
   PAUL B. LANDRY, Justice Ad Hoc.

Supervisory writs were issued herein to review the nonappealable conviction of defendant Phililer Johnson of the offense of entering the premises of Continental Trailways bus station, Shreveport, Louisiana, in violation of La.R.S. 14:63.3(A) and his sentence to pay a fine of $100.50 and costs, or serve 10 days in jail, 60 days suspended jail sentence, and unsupervised probation for one year. The jail sentence and unsupervised probation are subject to the condition that defendant not reenter the bus station premises during the probationary period. We reverse.

La.R.S. 14:63.3(A) entitled “Entry on or remaining in places after being forbidden”, pertinently states:

“A. No person shall without authority go into or upon or remain in or upon or attempt to go into or upon or remain in or upon any structure, watercraft, or any other movable, or immovable property, which belongs to another, including public buildings and structures, ferries, and bridges, or any part, portion, or area thereof, after having been forbidden to do so, either orally or in writing, including by means of any sign hereinafter described, by any owner, lessee, or custodian of the property or by any other authorized person. For the purposes of this Section, the above mentioned sign means a sign or signs posted on or in the structure, watercraft, or any other movable, or immovable property, including public buildings and structures, ferries and bridges, or part, portion or area thereof, at a place or places where such sign or signs may be reasonably expected to be seen.”

The facts are uncontroverted. On May 6, 1979, defendant entered the bus terminal premises at approximately 1:00 A.M., and remained thereupon without incident until approximately 2:15 A.M., at which time he left and went to his car parked across the street in a lot belonging to another establishment. As he was driving out of the lot, defendant’s vehicle was blocked by an automobile driven by a security guard in the employ of Continental Trailways. Defendant was arrested and charged with the offense in question.

A. G. Sims, Jr., a member of the Shreveport City Police Department, was serving as off duty security guard at the bus terminal on the day of the alleged offense. He was seated in his automobile parked across the street from the bus station. While he did not see defendant enter the premises, he noted defendant’s presence inside the station at about 1:00 A.M. Sims kept defendant under visual observation because he had personally on several prior occasions warned defendant to keep away from the terminal and not reenter the premises for any reason whatsoever. During the period of observation Sims did not speak with defendant. At approximately 2:15 A.M., Sims observed defendant leave the terminal cafeteria and go to defendant’s car parked across the street. As defendant attempted to drive out of the lot, Sims blocked defendant’s automobile with Sims’ own vehicle and placed defendant under arrest. Sims conceded that he at no time requested defendant to leave the premises on the date in question because of his prior warnings and admonitions to defendant. He could not state how recently his last prior warning had been given. It is also conceded that no one in the employ of Trailways requested defendant to leave the premises on the occasion of the arrest.

Defendant readily admitted having been warned on prior occasions not to reenter the bus terminal premises. He too, could not recall the last time such a warning had been given. He observed that he did not understand the admonitions meant he had to remain away permanently and added that an employee had told him the cafeteria was open to everyone at all times. Defendant testified he had been called by a friend who had been denied the purchase of a bus ticket for the friend’s daughter because the friend was intoxicated. In response to the call defendant went to the parking lot, arriving about 1:00 A.M. He found his friend drunk in the latter’s automobile. Defendant then went into the terminal cafeteria and partook of food while waiting for the friend to sober up so that defendant could converse with him and get the money to purchase the ticket his friend desired. After rousing his friend, defendant obtained the ticket money, reentered the bus station, purchased the ticket, went back to the parking lot, gave the ticket to his friend and then went to his own car to leave. As defendant was driving away, his vehicle was stopped and defendant’s arrest ensued.

Defendant concedes that Sims, acting as security guard for Trailways, is an “authorized person” within the purview of subject statute. Nevertheless, it is contended that proof of a contemporaneous request or warning to leave one’s premises is an essential element of the offense proscribed by subject statute. On this premise it is argued that no such request was shown and, consequently, the record shows on its face the lack of proof of an essential element of the offense, a deficiency reviewable as a matter of law. In so contending, defendant cites and relies upon State v. Allien, 366 So.2d 1308 (La.1978), It is not contended that subject statute is unconstitutional.

In rejecting defendant's argument that a contemporaneous warning is an essential element of the offense charged herein, the trial court referred to but did not cite another statute which the court believed to require such a warning. Presumably the court was referring to La.R.S. 14:103.-1(A)(4), Disturbing the Peace, which provides that the offense of Disturbing the Peace is committed by one who, with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby, refuses to leave the premises of another when requested to do so.

We have been cited no authority on the precise question presented for resolution herein. Our independent research has failed to disclose jurisprudence on the subject. It appears that the matter is one of first impression.

We commence our discussion by noting that defendant herein is not charged with disturbing the peaee or in any wise acting in an offensive, abusive, unruly or obstreperous manner. The record is clear that while on the premises of the bus company, defendant caused no incident or disturbance and was not, on the occasion, in question requested by anyone whomsoever to leave.

In our judgment, it is significant that the premises involved is a facility devoted to serving the public at large, namely a bus terminal and its accompanying facilities dedicated to serving the needs and convenience of the members of the public desiring to travel by motor bus. It is conceded that the cafeteria portion of the facility is open to all the public at all times, including persons who have no desire or intent to utilize Trailways’ transportation facilities.

Equally noteworthy is the fact that the statute under review makes it an offense merely to remain on the premises of another following a request to leave even though the party asked to leave is creating no disturbance and his intentions may be entirely peaceable and lawful. Pursuant to the statute, the mere whim or wish of the owner that the other party leave, for any reason, or no reason whatsoever, gives rise to the offense if • the request to leave is unheeded. In this respect subject statute varies considerably from LSA-R.S. 14:103.-1(A), above.

We conclude that a logical interpretation of the statute at hand requires a reasonably contemporaneous or written request to leave as an indispensable element of the offense proscribed therein. While “reasonably contemporaneous” as applied in this instance does not necessarily mean a request immediately preceding the arrest of an alleged violation. We deem a request to be reasonably contemporaneous if given a few hours prior to the arrest, the same day as the arrest or such other pre-arrest interval reasonable under the facts and circumstances of each particular ease. We expressly hold it is patently unreasonable to hold that the legislature intended a citizen with peaceful intent could be permanently and perpetually barred from the premises of a public transportation facility without a warning to leave given reasonably contemporaneously prior to arrest for remaining on the premises contrary to the wishes of the owner.

In this instance defendant had been requested on prior occasions not to return to any part of the premises. What is not shown, however, is when these warnings were given in relation to the time of the arrest. Defendant was observed on the premises by the security guard who had given at least some of the prior warnings. Despite the previous admonitions, the guard allowed defendant to remain on the premises for more than an hour without repeating the warnings or requesting that defendant leave. Under such circumstances defendant could well have reasonably concluded that the previous proscription no longer pertained.

La.Const.1974, Article 5, Section 5(C) provides that the scope of appellate review in criminal cases is limited to questions of law only. In criminal cases the Supreme Court may not consider the sufficiency of the evidence; its review is confined to the question of whether there is any evidence at all of some essential element of the crime charged. State v. Alexander, 339 So.2d 818 (La.1976).

Our examination of the record discloses no proof whatsoever of the essential element of a reasonably contemporaneous request that defendant leave the premises. This presents an issue of law reviewable by this Court. Finding such a fatal defect in the proof of the commission of the alleged crime, the conviction must be annulled and set aside.

Defendant’s conviction is reversed and set aside and the charge against defendant ordered dismissed.


author: PAUL B. LANDRY, Justice ad hoc.

text:
    STATE of Louisiana v. Lawrence PATRICK.
    No. 65838.
    Supreme Court of Louisiana.
    March 3, 1980.

      Frank G. DeSalvo, Gretna, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Michelle E. Roberts, Asst. Dist. Atty., for plaintiff-relator.
   PAUL B. LANDRY, Justice ad hoc.

On application of the State of Louisiana (Relator), writs were granted herein to review the pre-trial suppression of evidence (a marijuana cigarette) seized in a warrantless pat-down search of a work-release inmate who was en route back to his detention facility after completion of daily work-release employment. We reverse and remand for trial.

Defendant, a work-release inmate in Orleans Parish, was allowed to act as process server for the Second City Court of Orleans Parish on weekdays. In this role he traveled to and from his employment by means of public transportation. In May, 1979, the Orleans Parish Criminal Sheriff’s Office received a confidential tip from another work-release inmate that defendant was using and possibly selling marijuana as defendant travelled to and from his work-release employment. Based on this disclosure and being apprehensive that defendant would dispose of the contraband before returning to the detention facility, two members of the Sheriff’s Office intercepted defendant as he returned from his job on Monday, May 14, 1979. When defendant disembarked from the Canal Street Ferry, defendant and a fellow work-release inmate were met by the officers. The officers escorted both men out of the way of pedestrian traffic and conducted a pat-down search of both parties. On order from the officers, defendant emptied his pockets. Among the contents was a cigarette package containing two tobacco cigarettes and one marijuana cigarette. Defendant was arrested and charged with possession of marijuana in violation of La.R.S. 40:967.

The trial court suppressed the evidence thus seized on finding that the search thus conducted was in violation of defendant’s constitutional right to privacy.

The State argues the seizure was justified on two grounds: (1) probable cause was supplied by the confidential tip (which source had previously supplied information resulting in disciplinary action against other work-release inmates) and the attending exigent circumstances; and (2) as a work-release inmate defendant did not have a reasonable expectation of privacy as regards the search involved.

Because we find that defendant did not have a reasonable expectation of privacy as regards the search, and consequently no constitutional right was involved, we pre-termit the issue of probable cause.

Federal and state constitutional protections against unreasonable searches and seizures do not extend to defendant in this instance. U.S.Const. Amend. IV; La.Const. 1974, Article 1, See. 5; Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967); State v. Dupuis, 378 So.2d 934 (La.1979); State v. Williams, 375 So.2d 364 (La.1979); State v. Wilbourn, 364 So.2d 995 (La.1978).

In State v. Lamartiniere, 362 So.2d 526 (La.1978), we adopted Justice Harlan’s guideline for determining the issue of reasonable expectation of privacy as set forth in his concurring opinion in Katz v. United States, supra, namely:

“. . . My understanding of the rule that has emerged from prior decisions is that there is a two-fold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’ . . .” 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring) quoted in State v. Williams, supra, at 370 and State v. Lamartiniere, supra, at 528.

While we have recognized that prisoners are not totally bereft of Fourth Amendment rights by virtue of their incarceration, we have also declared these rights are diminished in nature and scope because of confinement for criminal conduct. We have expressly recognized and declared that an inmate’s expectations of privacy are considerably less than those of the free members of our society in general. State v. Dauzat, 364 So.2d 1000 (La.1978); See also Bell v. Wolfish, 441 U.S. 520, 60 L.Ed.2d 447, 99 S.Ct. 1861 (1979), which upheld war-rantless room searches and visual body cavity searches of inmates.

Defendant, though not incarcerated at the time of search, was nevertheless in custody as an inmate of a detention facility to which he returned daily for nightly incarceration. As such, he was subject to the rules governing the work-release program in which he participated. These regulations included a prohibition against the use or possession of drugs. Also, defendant was aware that he would be searched upon his re-entry into the detention facility at the end of each day. Defendant’s expectations of privacy were minimal, if any, under the circumstances. Because defendant had no expectations of privacy from the search involved, there was no violation of his Fourth Amendment rights. State v. Williams, supra.

The test of reasonableness in cases of this nature depends upon the total atmosphere of each ease. State v. Nine, 315 So.2d 667 (La.1975). In this connection, in Bell v. Wolfish, supra, the United States Supreme Court declared:

“The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it and the place in which it is conducted.”

We find the limitation of defendant’s expectations of privacy reasonable by prevailing, acceptable social standards, thereby satisfying the second aspect of the Katz, inquiry. Society in general has a valid interest in limiting the expectations of privacy on the part of a person incarcerated in a detention facility for convicted criminals; including those inmates at conditional or qualified liberty on work-release programs intended for humane and rehabilitation purposes.

[5] In somewhat analagous cases (parolees) warrantless searches of the parolee’s person and residence by parole officers have been upheld where the search was reasonable even though less than probable cause was shown. Latta v. Fitzharris, 521 F.2d 146 (9th Cir. 1975); Santos v. New York State Board of Parole, 441 F.2d 1116 (2d Cir. 1971), cert. den. 404 U.S. 1025, 92 S.Ct. 692, 30 L.Ed.2d 676 (1972). We recognize a difference between the relationship of a parole officer to a parolee and that of a custodian of a work-release inmate. We add that a parolee is free to remain at home each night and has far more freedom of movement and activity than a work-release inmate who must return to a detention facility each night. We deem it evident that a parolee has a far greater expectation of privacy than does a work-release inmate.

Notwithstanding defendant would have been searched on his return to the detention facility, we deem his en route search reasonable. Mere possession of marijuana was a violation of detention facility rules. In all likelihood defendant had no intention to bring the contraband into the facility knowing that he would be searched before re-entry. It is more probable that defendant intended to either sell the drug or use it himself before reporting back to the facility, thus effectively thwarting detection of his rules infraction.

Viewing the totality of circumstances, we deem it illogical to conclude that society is prepared to accept the reasonableness of an expectation of privacy under the circumstances shown.

The judgment of the trial court suppressing the marijuana cigarette as evidence is reversed and set aside and this matter remanded to the trial court for further proceedings consistent with the views herein set forth.

Reversed and remanded.


author:
DIXON, Justice.
     WATSON, Justice,

text:
    In the Interest of Joseph GENUSA a/k/a Joseph DeMarco.
    No. 65987.
    Supreme Court of Louisiana.
    March 3, 1980.
    Bradley N. Gater, Supervising Atty., New Orleans, Tulane Juvenile Law Clinic, Zoe Smith Wong, Student Practitioner.
    Jerome A. Friedman, Metairie, for Dept, of Health and Human Resources.
    James W. Blackman, Marreno, New Orleans Legal Assistance Corp., for parents of Joseph Genusa.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Melvin Zeno, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-respondent.
    Ann Clark Lazzara, Gretna, Richard L. Ducote, Gretna, amicus curiae for Jefferson Parish Foster Parent Assoc.
   DIXON, Justice.

■Joseph Genusa was taken from his parents on October 5, 1979 by order of the Juvenile Court of the Parish of Jefferson. At that time Joseph was eighteen months old. The court ordered that he be placed in the custody of the office of Human Development of the Louisiana Department of Health and Human Resources, acting under R.S. 14:403 (relative to neglected children) and Code of Juvenile Procedure article 25 (relative to children in need of care). Both statutes provide for the appointment of counsel to represent a child taken from his parents. The court appointed Bradley N. Gater, supervising attorney of the Tulane Juvenile Law Clinic, to represent Joseph.

On October 16, 1979 the court held a hearing to determine continued custody. Before that hearing was held, representatives of the Tulane Law Clinic filed a motion to compel the disclosure of Joseph’s location and the identity of the foster parents in whose care Joseph had been placed. The trial court denied the motion. At the hearing the court ordered that Joseph remain in the custody of the office of Human Development pending an adjudication hearing. The next day, October 17, the Fourth Circuit Court of Appeal denied an application for supervisory writs filed by the Tulane Law Clinic seeking to overturn the trial court’s denial of the motion to compel disclosure of information as to the child’s location and the identity of the foster parents. This court granted writs to review the action of the trial court and the Court of Appeal.

The question presented is whether an attorney appointed to represent a child who has been taken away from his parents is entitled to information as to the child’s whereabouts and custodians while in the care of the Department of Health and Human Resources.

As noted above, both R.S. 14:403 and C.J.P. 95 provide for the appointment of counsel to represent the child. Neither statute delineates the responsibilities of an attorney so appointed. It is clear, however, that an attorney appointed to represent a minor child bears the same ethical and professional responsibilities toward his client as any other attorney representing a client in a criminal or civil case.

A lawyer’s primary duty is to represent his client zealously, within the bounds of the law. EC 7 — 1. He may act as either an advocate or an adviser. EC 7-3. In .so doing he must take care to exercise his professional judgment solely for the benefit of his client and free of compromising influences and loyalties. EC 5 — 1. As noted in EC 7 — 11, the lawyer’s responsibility may vary upon the intelligence, experience, mental condition and age of his client. A particularly onerous burden is placed on an attorney when his client is incapable of making a considered judgment on his own behalf, as in the present case. If the child has no legal representative to whom the attorney may look in making decisions for the child, he may be forced to make them himself. In such a 'situation, “the lawyer should consider all the circumstances then prevailing and act with care to safeguard and advance the interests of his client.” EC 7-12.

The above provisions make it clear, in cases such as Joseph’s, that the attorney must develop facts as to “all circumstances then prevailing” and exercise his judgment accordingly. The policy that an attorney be fully conversant with the facts of a case in which he is involved is well embedded in our law. It is this policy which is behind the ethical rule of confidentiality between lawyer and client, and behind the evidentia-ry privilege that protects a client’s confidences. EC 4 — 1. In elaborating on an attorney’s duty in this area, EC 4-1 states, in part, that a “. . . lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant.” In situations such as the present case, it is the duty of the attorney representing the child, in the exercise of his professional judgment, to determine which avenues of investigation he wishes to pursue. It is not the province of the court or of the Department of Health and Human Resources, which may have interests adverse to the child’s, to engage in such decision making. We must presume that the reason that the legislature provided for the appointment of counsel in these cases was to insure that such decisions would be made by an attorney with only the interests of the child at heart.

In. a proceeding such as the present case, the ultimate issue is whether a child should be taken away from his parents and given into other custody. In representing the child the attorney must constantly make decisions for which or¡ly he is responsible and for which he must be fully informed. It is part of the exercise of the attorney’s professional judgment to determine upon what facts those decisions should be predicated.

The Department of Health and Human Resources argues that the anonymity of foster parents must be preserved in order to insure that foster homes will serve as secure refuges for children who are taken from their parents and to protect foster parents from the unwanted intrusions by natural parents. That argument is unpersuasive in light of the requirement that an attorney keep the confidences of his client inviolate. In this case, as in any other, the attorney should act only on the fullest knowledge of the facts, and, as in any other case, he must preserve, where necessary, the confidentiality of those facts.

Nor does this case present an issue of “discovery.” If the attorney’s client were old enough to converse with his counsel, no one would suggest that the attorney would have to file, on behalf of his client, a motion for discovery in order to find out his client’s address. He could simply ask his client. The right of the attorney to know the whereabouts of his client go beyond the right of a party in an action to seek discovery from opposing parties. It is essential to the fundamental operation of his function as the person appointed to represent solely the child’s best interests. He should not be prevented from performing that function merely because of the happenstance that his client is unable to communicate with him. In fact, as noted above, the attorney’s duty is even higher in such situations than is normally the case.

We therefore hold that, in light of the determination by the legislature that such children as Joseph should be represented by counsel, it was error for the trial court to deny that counsel information pertaining to his client which the attorney, in the exercise of his professional judgment, considered to be material to the representation of his client.

For the reasons assigned, the juvenile court’s denial of the motion to compel the disclosure of the identity and location of Joseph’s actual custodians is reversed, and the case is remanded for further proceedings consistent with this opinion.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting:

The majority opinion allows an attorney appointed to represent a child in juvenile proceedings to have unrestricted access to the location of the child and the identity of the foster parents in whose care he has been placed. Overlooked is the fact that there are a number of reasons why the State agency prefers to keep this information confidential, not the least of which is the difficulty of obtaining suitable foster parents. Having multiple lawyers poking and prying about the premises can hardly be thought conducive to the welfare of the foster children living there.' The law places the responsibility for taking care of the children with the State. The responsibility for legal representation of the child is the appointed counsel’s task. There should be a showing of good cause before counsel learns the name of the foster parents and the location of the child. There is no justification for a blanket rule that appointed counsel is entitled to such information without any showing.

Therefore, I respectfully dissent.

       Chief Judge PAUL B. LANDRY, Retired, participated in this decision as an Associate Justice Ad Hoc.

      . We assume that Mr. Gater was appointed personally to represent Joseph, in the absence of anything to the contrary in the record. C.J.P. 95 provides that Joseph is entitled to counsel in these proceedings. It is doubtful if the appointment of the Tulane Juvenile Law Clinic, instead of an individual attorney,, satisfies that provision. See also Rule 20 of the rules of this court pertaining to the limited participation of law students in trial work through law school clinical programs.


author: PER CURIAM. CALOGERO and DENNIS, JJ.,

text:
    STATE of Louisiana v. Otis WADE.
    No. 65988.
    Supreme Court of Louisiana.
    March 12, 1980.
    Rehearing Denied April 7, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Thomas W. Davenport, Jr., Davenport, Files, Kelly, Marsh & Graham, Monroe, for defendant-appellant.
   PER CURIAM.

Affirmed.

CALOGERO and DENNIS, JJ.,

would remand for reconsideration of sentence in light of factors enumerated by C.Cr.P. art. 894.1.


author: PER CURIAM.

text:
    STATE of Louisiana v. Charles TAGUE.
    No. 62584.
    Supreme Court of Louisiana.
    March 14, 1980.
    Jack Quarles, Gretna, 24th Judicial Dist. Court, Indigent Defender Bd., for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Bárbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Clarence E. McManus, Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Charles Tague was charged by bill of information with armed robbery in violation of La.R.S. 14:64.. After trial by jury, he was found guilty as charged and was subsequently sentenced to serve sixty-five years at hard labor without benefit of parole. This Court affirmed the conviction and sentence on appeal. State v. Tague, 372 So.2d 555 (La.1979). The United States Supreme Court granted certiorari, reversed the judgment of this Court, and has remanded the case for further proceedings not inconsistent with its opinion. Tague v. Louisiana, - U.S. -, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980).

The basis for the reversal by the High Court was its holding that an inculpatory statement made by the defendant to the arresting officer and introduced at trial had been obtained in violation of defendant’s rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Since the statement was taken in violation of Miranda, it was inadmissible evidence and the defendant must be afforded a new trial. See, e. g. State v. Menne, 380 So.2d 14 (La.1980); State v. Weedon, 342 So.2d 642 (La.1977); State v. Welch, 337 So.2d 1114 (La.1976).

Accordingly, the conviction and sentence are reversed and set aside, and the case is remanded to the Twenty-fourth Judicial District Court, Parish of Jefferson, for further proceedings not inconsistent with the opinion of the United States Supreme Court and with other provisions of law.

       de la HOUSSAYE, J., not participating.


text:
    JUDICE-HENRY-MAY AGENCY, INC., et al. v. Ben R. FRANKLIN, III, et al.
    No. 66765.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Judice-Henry-May Agency, Inc., et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 376 So.2d 991.

Denied.


text:
    FORD MOTOR CREDIT COMPANY v. Katie M. DIFFEY, a/k/a Katie Diffey Harrison.
    No. 66772.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Katie M. Diffey, a/k/a Katie Diffey Harrison, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 378 So.2d 1032.

Denied.


text:
    Santos D. ACOSTA v. Willie DARDAR, Crowder Interest, Inc., Tenneco, Inc., and its wholly owned subsidiary, Tenneco Oil Company, Delta Maintenance, Inc., and the International Brotherhood of Boilermakers, Local 37.
    No. 66779.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Santos D. Acosta, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 379 So.2d 820.

Denied.


text:
    Dorothy Jill SINGLETARY v. Wayne P. PARKER, Registrar of the Bureau of Vital Statistics of the City of New Orleans, et al.
    No. 66784.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Stanley G. Brown, Registrar of the Bureau of Vital Statistics of the City of New Orleans, applying for certiorari, or writ of review, to Court of Appeal, Fourth Circuit. Parish of Orleans. 379 So.2d 797.

Denied.

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


text:
    Katherine F. SALVANT, wife of/and James A. Salvant v. Emily P. FRITCHUE.
    No. 66808.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Katherine F. Salvant, wife of/and James A. Salvant applying'for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 379 So.2d 752.

Writ denied.


text:
    SUCCESSION of Linda DUBUISSON.
    No. 66809.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Robert M. Watson, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Tensas. 378 So.2d 1049.

Writ denied.

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


text:
    Wanda Lynn ALLEN v. The VOLUNTEERS OF AMERICA.
    No. 66810.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Wanda Lynn Allen, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 378 So.2d 1030.

Denied.


text:
    SUCCESSION of Andrew H. CAFFAREL, Sr.
    No. 66811.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Gary A. Caffarel, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 378 So.2d 202.

Writ denied.


text:
    George O. DAIGLE, III v. Samuel LANG, Leslie L. Inman, John M. Bee, Frederick S. Kullman, David A. Lang, Carl S. Downing, XYZ Insurance Company, New Orleans Saints, and ABC Insurance Company.
    No. 66815.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re George O. Daigle, III v. Samuel Lang, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 377 So.2d 1384.

Writ denied.

MARCUS, J., would grant on the indemnity issue.

WATSON, J., recused.


text:
    SUCCESSION of Thomas A. WILLIAMS. SUCCESSION of Mrs. Otelia Judice WILLIAMS.
    No. 66825.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Patricia E. Williams, Dana E. Williams and Ann W. Brierre, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 379 So.2d 755.

Denied.

BLANCHE, J., would grant the writ.


text:
    PLAQUEMINES PARISH COMMISSION COUNCIL and the Plaquemines Parish School Board v. Honorable Herman B. SCHOENBERGER, Sheriff and Ex-Officio Tax Collector for the Parish of Plaquemines.
    No. 66832.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Plaquemines Parish Commission Council and the Plaquemines Parish School Board, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Plaquemines. 378 So.2d 528.

Writ denied.


text:
    Doyle Wayne CRAIG v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al.
    No. 66836.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Travelers Indemnity Co., and Olan C. Holder, Jr., applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Sabine. 377 So.2d 1271.

Denied. The result is correct.


text:
    Frank OLDHAM, Jr. v. Bain B. GILCREASE.
    No. 66837.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Bain B. Gilcrease, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Grant. 377 So.2d 1281.

Writ denied.

WATSON, J., recused.


text:
    Jennie S. BILLEAUDEAU et al. v. Robert W. LEMOINE et al.
    No. 66680.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Allstate Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 377 So.2d 1344.

Granted.


text:
    Jennie S. BILLEAUDEAU et al. v. Robert LEMOINE et al.
    No. 66683.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re Jennie S. Billeaudeau, applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 377 So.2d 1344.

Granted.


text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. Yvonne MEYERS.
    No. 66835.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re General Motors Acceptance Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Sabine. 377 So.2d 1355.

Granted.


text:
    STATE of Louisiana ex rel. John SULLEN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66447.
    Supreme Court of Louisiana.
    March 3, 1980.
   In re John Sullen applying for remedial writs, and writs of mandamus and habeas corpus. Orleans Parish. No. 185,236.

Granted. Evidentiary hearing ordered on issue of alleged conflict of interest due to counsel representing codefendants. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).


text:
    STATE of Louisiana v. Kenneth R. POORE.
    No. 66984.
    Supreme Court of Louisiana.
    March 5, 1980.
   In re Kenneth R. Poore, applying for writs of certiorari, prohibition, mandamus, habeas corpus and for a stay order. Orleans Parish. No. 249-068/094.

Writ granted. Defendant ordered released or the district court show cause to the contrary on or before 10:00 a. m., Monday, March 10, 1980. See State v. Guillory, 363 So.2d 511 (La.1978); C.Cr.P. arts. 893 and 900.


text:
    STATE of Louisiana v. Robert HARRISON, Jr.
    No. 66992.
    Supreme Court of Louisiana.
    March 7, 1980.
   In re Robert Harrison, Jr., applying for supervisory review. Parish of Orleans. No. 273-803.

Granted. It is ordered that trial judge order a severance of the charge of Possession of Firearm by Person convicted of pri- or felony. (La.R.S. 14:95.1).


author: COLE, Judge.

text:
    BATSON LUMBER COMPANY, INC., Plaintiff and Appellee, v. Leona WEST, Defendant and Appellant.
    No. 12779.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 23, 1979.
    Henry A. Mentz, Jr., Hammond, for plaintiff and appellee.
    Jerome Friedman, Metairie, for defendant and appellant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: PONDER, Judge.

text:
    Jack TRAHAN, Mark Mayeux, David Harrod and Freddie Wilhite, Plaintiffs and Appellees, v. Loria R. DEMARCEY, Wife of/and Lloyd Demarcey, et al., Defendants and Appellants.
    No. 12941.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 27, 1979.

      Joseph L. Waitz, Houma, for plaintiffs and appellees Jack Trahan, David Harrod & Freddie Wilhite.
    Gordon Hackman, Boutte, for plaintiffs and appellees.
    Thomas E. Dunn, New Orleans, for inter-venor Belinda Chaisson Harrod.
    Jerry A. Oubre, New Iberia, for defendants and appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a motion to dismiss an appeal from an interlocutory judgment overruling an exception to venue.

Code of Civil Procedure Article 2083 provides that an appeal may be taken from an interlocutory judgment which may cause irreparable harm. Appellant in this case made a strong argument that irreparable injury was present because prescription would be a serious question if venue is not proper.

We are unable to grant any relief because the exception to venue was filed after a preliminary default was taken. Under Code of Civil Procedure Article 928 the declinatory and dilatory exceptions must be pleaded prior to answer or judgment by default. This means that the right to object to venue is waived when a preliminary default has been entered. Foster v. Breaux, 238 So.2d 803 (La.App. 1st Cir. 1970), reversed on other grounds, 270 So.2d 526 (La. 1972).

For these reasons the motion to dismiss is granted at appellants’ costs.

MOTION GRANTED.


author: COVINGTON, Judge.

text:
    Dwight KELLER v. The CITY OF BATON ROUGE et al.
    No. 12874.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 1979.
    Morton H. Katz, New Orleans, for plaintiff-appellee, Dwight Keller.
    Charles E. Pilcher, Baton Rouge, for defendants-appellants, The City of Baton Rouge and Parish of East Baton Rouge.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This appeal was submitted on the September 26, 1979 Docket and all attorneys of record were notified. The appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: ELLIS, Judge:

text:
    INSURANCE SERVICES OFFICE v. COMMISSIONER OF INSURANCE, State of Louisiana. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Sherman A. BERNARD, Commissioner of Insurance. ALLSTATE INSURANCE COMPANY v. Sherman A. BERNARD, Commissioner of Insurance, State of Louisiana.
    Nos. 12681-12683.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 8, 1979.
    Writ Refused Nov. 30, 1979.
    John R. Martzell, New Orleans, W. Scott Allen, Deputy Commissioner of Insurance, Baton Rouge, for defendant-appellant, Sherman A. Bernard, Commissioner of Insurance.
    Anthony J. Clesi, Jr., Baton Rouge, for plaintiff-appellee, State Farm Mut. Auto. Ins. Co.
    Charles W. Franklin, Baton Rouge, for plaintiff-appellee, Ins. Services Office.
    Joseph F. Keogh, Baton Rouge, for plaintiff-appellee, Allstate Ins. Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

On February 1,1978, the Commissioner of Insurance issued an order to the plaintiffs in these consolidated cases to show cause why they should not cease and desist from charging automobile insurance premiums based on a rating plan using age and sex as criteria. It was alleged that the rating plan was unfairly discriminatory and therefore in violation of the Insurance Code of Louisiana, Title 22 of the Revised Statutes.

The hearing by the Commissioner was convoked under the authority bestowed on him by R.S. 22:1215, which provides:

“The commissioner of insurance shall have power to examine and investigate into the affairs of every person engaged in the business of insurance in order to determine whether such person has been or is engaged in any unfair method of competition or in any unfair or deceptive act or practice prohibited by this Part.”

The unfair practice alleged herein is the violation of a prohibitory law of this state, as provided by R.S. 22:1214(12). The prohibitory laws allegedly violated are R.S. 22:1402 and 1404(2), which provide that insurance rates shall not be excessive, inadequate or unfairly discriminatory.

After the hearing, the Commissioner issued his ruling of April 14, 1978, in which he ordered the plaintiffs to “cease and desist from engaging in unfair discrimination on the bases of age and sex in the rating plans that are applied to the premiums charged to certain persons based on age/or sex, all in violation of Title 22, of the Louisiana Revised Statutes of 1950, Sections 1214(12), 1402 and 1404(2).”

Plaintiffs applied to the 19th Judicial District Court for review of the above order. The trial judge found the order of the Commissioner to be manifestly erroneous, and ordered it “reversed, annulled and set aside.” From that j'udgment, the Commissioner has appealed, arguing that the trial judge applied an improper standard of review, and that he erred in finding the order of the Commissioner to be manifestly erroneous.

R.S. 49:964(G) provides as follows:

“The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.”

The Commissioner argues that plaintiffs must show both substantial prejudice to their rights and (in this case) manifest error on the part of the agency making the determination. He asserts that, even if his factual conclusions are manifestly erroneous, the reviewing court cannot reverse his finding unless substantial prejudice to the rights of plaintiffs has also been shown.

Although we do not agree with this interpretation of that language, it is not necessary that we so hold. In this case, the Commissioner seeks to change the basis for the rate schedule for automobile insurance. He selected the companies who are parties to these cases. We do not need evidence to know that substantial rights are involved in the case, and would be prejudiced by a ruling adverse to the companies.

Turning now to the merits of the determination made by the trial judge, we find that there is no question of.manifest error involved in this case. The manifest error doctrine relates only to factual findings of the trier of fact, and has no application to conclusions of law or of public policy. We find no disputed questions of fact in the case. The record reflects, without contradiction, that drivers under the age of 25 constitute 26% of the driver population and have 38% of the accidents; that women drivers have fewer accidents than male drivers; and that drivers over 65 have a smaller incidence of accidents than do other drivers. All of these classes of drivers, by age and sex, pay a greater or lesser share of the policy premiums collected, depending on the accident record of their class as a whole. The Commissioner found, and now contends, that a rate structure based on age and sex, factors over which the driver has no control, unfairly discriminates against those individuals with good driving records who are forced to pay higher premiums because of membership in a class with a poor driving record. It is this conclusion, which is one of public policy, that the trial judge found to be “manifestly erroneous”.

Under R.S. 22:1401 et seq., the responsibility for regulation of casualty insurance rates is vested in the Louisiana Insurance Rating Commission. R.S. 22:1404(3)(b) provides as follows:

“Risks may be grouped by classifications for the establishment of rates and minimum premiums. Rates may be established on the basis of any classifications submitted by any insurer or group of insurers, provided such classifications are found to be reasonable. Classification rates may be modified to produce rates for individual risks in accordance with rating plans which establish standards for measuring variations in hazards or expense provisions, or both. Such standards may measure any differences among risks that can be demonstrated to have a probable effect upon losses or expenses.”

The evidence taken by the Commissioner indicates that there exists a sound statistical basis for using classifications based on age and sex in fixing insurance rates. It further appears that any classification system which results in different classes paying different rates for the same protection is, to some extent, discriminatory. If, for instance, age and sex are not used as factors in establishing classifications in automobile insurance rates, women and all those over 24 years of age, or about 75% of the drivers, would pay a higher premium, while those under 25 years of age, about one-fourth of the drivers, would pay substantially less than they are now paying. The older and more experienced drivers would therefore be discriminated against by having to subsidize the higher risk class of younger drivers.

R.S. 22:1404 requires that the classifications used in establishing rates be reasonable, and not unfairly discriminatory. We agree with the trial judge that classifications based on age and sex are not unreasonable, and, although there is discrimination against the good, young driver, it is not unfair or unreasonable.

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

AFFIRMED.


text:
    Willard HAMILTON v. Suzanne HAMILTON.
    No. 12748.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 8, 1979.
    Mary Olive Pierson, Charles L. Miller, Baton Rouge, Donna D. Fraiche, New Orleans, for plaintiff-appellee Willard Hamilton.

      Dennis R. Whalen, Baton Rouge, for defendant-appellant Suzanne Hamilton.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit for partition of certain property held in common by Willard Hamilton and Suzanne Hamilton, who were married in 1973, legally separated in 1977, and subsequently divorced. At issue is the status of certain items which were shower gifts, received prior to the marriage.

Mrs. Hamilton claims them to be her separate property, because they were given to her as manual donations at a miscellaneous shower given for her prior to the marriage. Mr. Hamilton claims that the gifts were made to both of the parties in contemplation of the marriage. There is no evidence in the record as to whether the donors intended the gifts to be for Mr. Hamilton, Mrs. Hamilton or both of them.

The items in question include eight dinner plates, one salad plate, one bread and butter plate, three cups and saucers and a vegetable bowl; two ice tea glasses and two water glasses; some monogrammed glasses; two silver trays; a ceramic soap dish, a cake and pie saver, a candle holder, wooden salt and pepper shakers, a coffee percolator and some towels. The trial judge was of the opinion that these items were “obviously for the use of plaintiff and defendant jointly”, and concluded that the parties owned them in common.

Article 1539 of the Civil Code provides:

“The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.”

The validity of the manual donation is dependent on the intention of the donor to give and the delivery of the thing to the donee. The intention of the donor controls the identity of the donee or donees. The delivery may be made to the donee, or to one of them, if there be more than one, or even through a third party. See Aubry et Rau, Droit Civil Francais, Civil Law Translations, v. 3, § 659; Planiol, Traité Élémentaire de Droit Civil, v. 3, part 2, § 2538 et seq. (Louisiana State Law Institute Translation); Faison v. Patout, 212 La. 37, 31 So.2d 416 (1947).

Although the gifts in this case were made at a shower given for the bride, Mrs. Hamilton, before the wedding, we find that the intent of the donors is the fact controlling the present ownership of the gifts. We agree with the trial judge that, absent any proof as to the intent of the donors, it must be presumed that gifts of the nature here involved, which would appear to be for use by both parties, are therefore jointly owned by them.

The judgment appealed from is therefore affirmed, at the cost of defendant, Mrs. Hamilton.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Robert BARRILLEAUX, Plaintiff and Appellee, v. Florence Hinkson BARRILLEAUX, Defendant and Appellant.
    No. 12742.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 1979.

      T. J. Seale, III, Hammond, for plaintiff and appellee.
    J. Thomas Anderson, Hammond, for defendant and appellant.
    Before CHIASSON, EDWARDS and COLE, JJ.
   CHIASSON, Judge.

This is a suit for custody of a male child nine years of age born of the marriage between Robert Barrilleaux, plaintiff-ap-pellee, and Florence Hinkson Barrilleaux, defendant-appellant. The parties are now legally divorced.

On November 14, 1977, Robert filed a rule for permanent custody of the child, Robert Clay Barrilleaux. Florence opposed the rule and prayed that permanent custody of the child be granted to her.

On February 13, 1978, the trial court granted to Robert the temporary custody of the child. In that judgment the trial court ordered the Division of Family Services of the Department of Health and Human Resources to make an investigation of the mother’s and father’s home environment for the purpose of advising the court as to the child’s welfare.

On August 14, 1978, another hearing on the rule for permanent custody was heard. On September 21, 1978, a judgment was signed granting temporary custody to Robert. Florence appeals that judgment.

In all, there have been three judgments granting temporary custody of the child to Robert without prejudice to defendant to seek the permanent custody of the minor. We note that the final order granting temporary custody of the child to Robert Bar-rilleaux was given after a divorce had been granted to Robert.

We find that the trial court should have made an award of permanent custody of Robert Clay Barrilleaux to one of his parents. The trial court held two hearings where testimony was taken only as to the subject of permanent custody, December 2, 1977 and August 14, 1978. We find the evidence from these two hearings provided sufficient information on which the trial court could have based an award of permanent custody. Because there is no pending litigation as to the divorce of the parents and because only permanent custody of the child has been sought by both parents, we can find no reason why an award of permanent custody should not be made in accordance with the mandatory provisions of La. C.C. art. 157.

For these reasons we remand the case to the trial court to make a determination of the permanent custody of Robert Clay Bar-rilleaux based on the evidence presented at the two prior hearings on custody and any other evidence which the trial judge may order. Costs of this appeal are divided equally between the parties.

REMANDED.


text:
    James JACKSON and Sandra Faye Jackson v. Eddie W. GORDON and Curtie Lucille Garner Davis.
    No. 13171.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 12, 1979.

      See also, La.App., 381 So.2d 520.
    Samuel J. Dileo, Jr., Hammond, for appellants.
    E. Lynn Singleton, Greenburg, for appel-lees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Appellees have filed an “Original Motion and Memorandum on Behalf of Defendants-Appellees To Dismiss Appeal of Plaintiffs-Appellants.”

Their assertions-seem to be that appellants have no right or cause of action to appeal; that an affidavit attached to appellants’ original petition does not constitute an acknowledgement of illegitimate children; that plaintiffs have introduced no evidence that the decedent was their father; and that plaintiffs have not pled unconstitutionality of any statute. Appellees contend that we should therefore dismiss the appeal.

First, we have no procedure allowing the plea of no cause or right of action filed against an appeal as distinguished from that filed against the original petition in the trial court.

All the other assertions address themselves to the sufficiency of the proof, which question can be answered only after the hearing on the merits, not on a summary motion to dismiss the appeal.

MOTION DENIED.


text:
    James JACKSON and Sandra Faye Jackson v. Eddie W. GORDON and Curtie Lucille Garner Davis.
    No. 13171.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    See also, La.App., 381 So.2d 519.

      Samuel J. Dileo, Jr., Hammond, for plaintiffs.
    E. Lynn Singleton, Greensburg, Ronald F. Plaisance, New Orleans, for defendants.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Plaintiffs, James Jackson and Sandra Faye Jackson, claiming to be the illegitimate children of the decedent, James B. Gordon, sued to annul a judgment of possession in favor of defendants, Eddie W. Gordon and Curtie Lucille Garner Davis. Plaintiffs argue Louisiana’s succession laws discriminate against illegitimate children and are, in that regard, unconstitutional.

The trial court found for defendants without giving written or oral reasons. We affirm on the ground that plaintiffs have failed to prove the decedent was their father. We do not reach the issue of constitutionality.

This is the second time this suit has been before us. The first appeal was from the trial court’s granting of defendants’ motion for a summary judgment. We reversed and remanded on finding a genuine issue of material fact. Jackson v. Gordon, 366 So.2d 936 (La.App.1st Cir. 1978).

On remand, counsel entered into a joint stipulation which resolved the factual discrepancy which had concerned this court. The stipulation covered the birthdates of the two plaintiffs and the dates on which the decedent and Helen Walker were married and divorced. Apparently no other evidence was offered at trial. The record does not contain a transcript of the trial nor any exhibits constituting evidence. Attached to and forming a part of plaintiffs’ petition were copies of an affidavit and letter. While they relate to paternity, they were not introduced into evidence at trial and thus cannot be considered as evidence in our review of the judgment on the merits. The documents are not evidence; they are simply a part of the pleadings. C.C.P. art. 853. To treat them as evidence would be to deny defendants a right to object to their admissibility.

It is true this court did not discuss the issúe of paternity on the first appeal. At that point, we were reviewing a summary judgment and the fact of paternity was not disputed since it had been alleged in the petition and had not been contested by countervailing affidavits or other evidence. C.C.P. art. 967. However as there was no partial final judgment on this issue, paternity remained an essential element for plaintiffs to prove at trial.

For the foregoing reasons, the judgment appealed is affirmed. Costs of these proceedings are to be paid by plaintiffs-appellants.

AFFIRMED.


author: CUTRER, Judge. FORET, Judge,

text:
    Albert SINITIERE, Jr., et al., Plaintiffs-Appellees, v. Gerald W. LAVERGNE et al., Defendants-Appellants.
    No. 7424.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1980.
    Rehearing Denied April 2, 1980.
    Chris B. Fruge, Ville Platte, for defendant-appellant-appellee, Dept, of Transp.
    Onebane, Donahoe, Bernard, Torian, Diaz, McNamara & Abell by Henry C. Per-ret, Jr., Jones, Walker, Waechter, Poitev-ente, Carrere & Denegre, Anthony M. Faz-zio, Lafayette, for Gerald Lavergne.
    J. Minos Simon, Edward J. Milligan, Lafayette, for the plaintiffs-appellees.
    McBride & Brewster, Norman P. Foret, Logan, deLaunay & States, Gerald C. de-Launay, Lafayette, Roy & Forrest, Alex A. Lopresto, III, New Iberia, for defendant-ap-pellee.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This suit was consolidated in the trial court and on appeal with the case of Lavergne v. Department of Transportation and Development et al., 381 So.2d 528 (La.App. 3rd Cir. 1979). Separate judgments were rendered in the trial court and separate judgments are rendered on this date in each case on appeal.

These consolidated suits are for damages arising out of a two vehicle accident in which Florentine Sinitiere and Cyrillia Sini-tiere Henry were killed, and Gerald W. Lavergne was injured.

The basic facts are set forth by the trial judge in his written reasons as follows:

“On May 19, 1977, at approximately 3:00 P. M., CYRILLIA HENRY was driving a 1974 Monte Carlo in a westerly direction on Louisiana Highway 182 near its intersection with Captain Cade Road in St. Martin Parish, Louisiana. FLORENTINE SINITIERE, her guest passenger, was in the right front passenger seat. At the same time GERALD WAYNE LAVERGNE, while acting within the course and scope of his employment with MICROFILM CONSULTANTS, INC., was operating a 1968 Ford van in an easterly direction on Louisiana Highway 182. As LAVERGNE rounded a curve in the highway, he caused the right front and back wheels of the van to veer off of the travel portion of the roadway onto the shoulder of the highway. In an attempt to maneuver the van back onto the travel portion of the highway, LAVERGNE lost control of his vehicle. He crossed the center line of the highway directly into the pathway of the oncoming HENRY vehicle. A headon collision resulted — the left front of the LAV-ERGNE van hit the left front of the HENRY vehicle. Both vehicles came to rest in the westbound lane, the area of impact. MRS. HENRY was apparently killed immediately; MRS. SINITIERE was severely injured and died approximately two hours after the accident.
“Louisiana Highway 182 is an undivided blacktopped highway approximately 23 feet 10 inches wide. The lanes of traffic are marked by a white divided center line and are delineated from the adjoining 8 foot shoulders by a 4 inch wide reflectorized line. There was a 3V2-4 inch drop from the travel portion of the highway to the shoulder on the eastbound shoulder side of the highway at the site of the accident. This 3V2-4 inch drop, which existed throughout the curve of the highway, ran from 30 to 40 feet (in length). On the day of the accident, the weather was clear and the road was dry. There were no ‘low shoulder’ warning signs in the area."

Suit was filed by Albert Sinitiere, Jr., son of Florentine Sinitiere, and by Byran Henry, as surviving spouse of Cyrillia Sinitiere Henry, and as tutor of their minor son, Steven C. Henry. Suit was also filed by George Seiber as tutor for the minor children of the former marriage between Seiber and Cyrillia Sinitiere Henry. These children are Donnie, Troy and Derek Seiber.

Defendants were Gerald W. Lavergne, Microfilm Consultants, Inc. (Microfilm), Lavergne’s employer, and the State of Louisiana through the Department of Transportation and Development (Department). An intervention was filed by State Farm Mutual Automobile Insurance Company (State Farm), as subrogee, to recover payments made to Albert Sinitiere, Jr. and Bryan Henry under the medical and/or collision coverage of policies issued by State Farm to these persons.

A third party demand was filed by Lav-ergne against Southeastern Fidelity Insurance Company (Southeastern), his alleged insurer, the Department, and the heirs of decedents.

Lavergne also filed suit (our Docket Number 7425) against the Department for personal injuries he received in the accident.

The trial court in this suit (Docket Number 7424) rendered judgment in favor of plaintiffs and intervenor against defendants, Lavergne, Microfilm, and the Department, in solido.

The trial court also ordered reciprocal contribution as between the defendants, Department, for one-half of the judgment and Lavergne and his employer, Microfilm, for one-half thereof. The trial court also rendered judgment on Lavergne’s third party demand in favor of Lavergne and against Southeastern, third party defendant, in the amount of $10,000.00.

In the companion case (Docket Number 7425), judgment was rendered in favor of the Department and against Lavergne, dismissing Lavergne’s suit.

The Department appealed from the judgment rendered against it in Docket Number 7424. Lavergne appealed in both suits.

The issues presented for review are as follows:

(1) Whether the Department was negligent in its maintenance of the shoulders of the highway;

(2) Whether Lavergne was negligent in the operation of the Microfilm vehicle; and

(3) Whether the awards to the plaintiffs are excessive.

We will discuss the issues in the order enumerated.

NEGLIGENCE OF THE DEPARTMENT

The duties of the Department and its responsibilities to the public using the highways was set forth by this court in the recent case of Brown v. Louisiana Dept. of Highways, 373 So.2d 605 (La.App. 3rd Cir. 1979), as follows:

“The legal responsibility of the Department as to highway accidents was generally stated by this court in LaBorde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974), writ denied, 303 So.2d 182 (La.1974) as follows:
‘The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver; and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it’
Also, see U.S.F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976) and Guin v. State Through Dept. of Highways, 360 So.2d 1185 (La.App. 3 Cir. 1978).
“Included within the Department’s duties is the maintenance of the shoulders of the highway in a reasonably safe condition. Rue v. State, [Through] Dept. of Highways, 372 So.2d 1197 (La.1979).

The Department contends that the plaintiffs failed to satisfy requirement number (2) of the above, that is, it was not proved that the Department had actual or constructive notice of the existence of the defect and failed to correct same within a reasonable time. The resolution of this issue, being a question of fact, depends upon the existing facts and circumstances of each case. The trial court, in its reasons for judgment, found that:

". . . the Department of Transportation was negligent in failing to correct the 3V2 to 4 inch drop from Louisiana Highway 182 to the shoulder despite its actual and constructive knowledge of the defect.

The court further stated that:

“Louisiana Highway 182 was inspected 3 or 4 days prior to the accident. Witnesses testified that the drop off had existed for some time prior to the accident'. Mr. Whitney Lasseigne, St. Martin Parish Highway Superintendent [for the Department of Transportation] testified that a 2 inch drop from the highway to the shoulder is dangerous. The guidelines followed by his department, prepared by the Department of Highways, states that more than a one (1) inch drop should not be allowed."

An examination of the record reveals evidence which fully supports the trial court’s conclusion that the Department had actual or constructive notice of the defect in the shoulder and failed to repair same within a reasonable time. Millard Segura, who worked at a nearby golf course, heard the collision of the vehicles and went to the scene of the accident. He testified that he saw the rut or drop-off alongside the hard surface when he arrived at the scene. He further stated that the defective condition had existed for some time before the accident. He wasn’t sure for how long, however.

Sidney Hebert traveled the road twice a day going to and from work. He arrived at the scene of the accident soon after its occurrence and noticed the rut or drop-off alongside the hard surfaced road. Hebert had observed the existence of this condition on other occasions, stating that the condition had existed from four to eight weeks.

Whitney Lasseigne, Superintendent of the Department for St. Martin Parish, testified that his records indicated that on May 16, 1977, three days prior to the accident, the shoulder in the area of the accident was inspected by him and he noted that it needed “blading.” By “blading” he explained that the grader machine would be used to smooth out rough spots and depressions. Lasseigne stated that he didn’t send a grader to the area immediately due to the shortage of personnel and equipment. He didn’t think that the situation was dangerous enough to require emergency action. In the event of an emergency, Lasseigne stated that the regular work schedule would be interrupted and the dangerous condition would be repaired. Lasseigne further testified that he considered a shoulder drop-off to be dangerous if the drop-off was more than 1 to 2 inches. The Maintenance Superintendent’s Manual, issued by the Department to guide their superintendents, states that:

“ . . . anytime a shoulder is more than an inch low (or less in some cases) . it should be reshaped.”

The drop-off in this case was from S to 4 inches which extended from the area of the accident along the curve to the intersection of Captain Cade Road. This was the testimony of the investigating officers.

Our review of the record leads us to conclude that the trial court was not clearly wrong in its determination that the Department had actual or constructive notice of the hazardous shoulder condition and that its failure to correct the hazard was negligence.

Further, this negligence was a cause-in-fact of the accident. Had the Department not been negligent in its failure to maintain the shoulder, the accident would not have occurred. The duty of the Department to maintain reasonably safe shoulders encompasses the risk that a driver, who finds himself on the shoulder and who attempts to re-enter the paved portion of the roadway, will lose control of the vehicle because of the unsafe condition created by a low shoulder. Thus, the violation of the duty was a legal cause of the accident.

The trial court correctly determined that the Department was negligent, which negligence was a legal cause of the accident.

LAVERGNE’S NEGLIGENCE

The trial court found that Lavergne was guilty of contributory negligence (which was a legal cause of the accident) in that he allowed his vehicle to inadvertently leave the improved portion of the roadway. The court relied on the rule set forth in Hopkins v. Department of Highways, 167 So.2d 441 (La.App. 1st Cir. 1964), writs ref’d, 246 La. 885, 168 So.2d 268 (1964), that unless there is an emergency over which a motorist has no control, and which is not of his own making:

“ . . . it constitutes negligence for a driver to permit Tiis vehicle to leave the improved portion of a road or highway without reducing his speed and otherwise taking precautions to insure his retention of control thereof in the event he should encounter some unforseen defect on the shoulder of the thoroughfare.”

The application of the principles of Hopkins by the trial court was error. Hopkins was overruled in the recent case of Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979). We note, however, that the trial judge did not have the Rue case available to him at the time the judgments herein were rendered.

In Rue, the driver was negotiating a curve to the left when she inadvertently allowed her vehicle to drift off the paved portion of the highway. The right wheels struck a rut adjacent to the edge of the pavement upon her attempt to get back upon the highway, causing the driver to lose control of the vehicle which went across the highway where it flipped over several times before coming to rest in a field. The driver was driving within the speed limit at the time of the accident.

The Supreme Court, reversing the Court of Appeal (which had held the driver negligent under the doctrine of Hopkins), held as follows:

“Under a simple ‘but-for’ analysis the accident would not have occurred had either the Highway Department not been negligent in failing to maintain the shoulder or the plaintiff not been negligent (and for present purposes we assume her inadvertent meandering was negligence) in moving the vehicle onto the shoulder. But this does not conclude the inquiry. Focusing on plaintiff’s ‘substandard’ conduct the question is whether the risk of injury from striking an unexpected, negligently maintained highway shoulder was a risk reasonably related to plaintiff’s failure to drive entirely on the paved portion of the highway. We conclude that it was not. A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely, the Highway Department’s duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including a simple inadvertence, a motorist might find himself travelling on, or partially on, the shoulder.
We conclude that plaintiff’s conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder. We therefore expressly overrule Hopkins v. Department of Highways, supra.”

The facts in this case are strikingly similar to those found in Rue. Lavergne was negotiating a gradual curve to his left when he inadvertently allowed the van to leave the blacktop surface, dropping the two right wheels onto the shoulder where he struck a rut or drop-off of 3V2 to 4 inches deep. Upon his attempt to get back upon the blacktop, his right front wheel struck the edge of the hard surface, causing Lav-ergne to lose control of the van he was operating. The van went across the highway where it struck the plaintiff’s automobile. Under the doctrine of Rue, Lav-ergne’s conduct, if it was substandard, is no bar to his recovery of damages occasioned chiefly because the Department negligently failed to maintain a safe highway shoulder.

The Department contends that Lavergne was negligent by not turning his wheel at a higher angle as he attempted to get back upon the blacktop. Lavergne testified that after he went upon the shoulder, he took his foot off the accelerator and pressed his brake lightly. He then attempted to turn gradually onto the blacktop when the vehicle suddenly went upon and across the blacktop. As we consider the testimony of the witnesses, including the traffic safety experts, we conclude that Lavergne’s attempt to get back upon the blacktop was done in a reasonable manner, and his action was not negligent under the circumstances. Under the Rue doctrine, even if such a re-entry could be considered substandard, Lavergne would not be barred from a recovery of damages occasioned chiefly because the Department failed to maintain a safe highway shoulder. We hold that Lav-ergne was free of negligence in the operation of the vehicle he was operating.

We will therefore reverse the judgment of the trial court insofar as it imposes any liability upon Lavergne either as a defendant or third party defendant in this suit (Docket Number 7424).

DAMAGES

The Department contends that the damages awarded to the plaintiffs are excessive. No arguments were presented in brief on this issue. The trial court made the following awards:

“To ALBERT SINITIERE, JR., for mental anguish and grief and loss of love, affection and companionship, the sum of TWENTY FIVE THOUSAND AND NO/lOO ($25,000.00) DOLLARS.
“For pain and suffering of MRS. SINI-TIERE, FIVE THOUSAND AND NO/lOO ($5,000.00) DOLLARS.
“For special damages:
David Ambulance Service, Inc. $ 80.00
Dr. E. Weeks Dauterive 500.00
Dauterive Hospital, Inc. 955.30
Funeral Expenses 1,145.27
“To STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as intervenor, to be paid from the above sums awarded to ALBERT SINITIERE, JR., the sum of TWO THOUSAND THREE HUNDRED THREE AND 7/100 ($2,303.07).
“To BRYAN HENRY, for mental anguish and grief and loss of love, affection and companionship, the sum of FIFTY THOUSAND AND NO/lOO ($50,000.00) DOLLARS.
“For special damages:
Funeral Expenses $3,692.12
Loss of Family Vehicle 3,650.00
“To STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, as intervenor to be paid from the above sums awarded to BRYAN HENRY, the sum of FIVE THOUSAND SIX HUNDRED FIFTY AND NO/lOO ($5,650.00) DOLLARS.
“TO BRYAN HENRY, as natural tutor of STEVEN C. HENRY, for loss of love, companionship, and guidance, the sum of FORTY THOUSAND AND NO/lOO ($40,000.00) DOLLARS.
“To GEORGE SEIBER, as natural tutor of his minor children DONNIE JAMES SEIBER, the sum of FIFTEEN THOUSAND AND NO/lOO ($15,000.00) DOLLARS.
“TROY JOHN SEIBER, the sum of FIFTEEN THOUSAND AND NO/lOO ($15,000.00) DOLLARS.
“DEREK JAMES SEIBER, the sum of TWENTY THOUSAND AND NO/lOO ($20,000.00) DOLLARS.”

An examination of the record clearly indicates that the awards are not excessive, but are within the much discretion of the trial judge. We find no manifest error in these awards.

For the assigned reasons, the judgment of the trial court is reversed and the suit (Docket Number 7424) is dismissed insofar as it imposes liability on Gerald W. Lav-ergne as a defendant, and also as a third party defendant. The judgment is affirmed in all other respects. Costs of this appeal are assessed to the Department of Transportation and Development.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

FORET, J., concurs and assigns written reasons.

DOUCET, J., concurs for reasons assigned by FORET, J.

FORET, Judge,

concurring:

I reluctantly concur for two reasons: (1) while I find it difficult to vote in favor of the reversal of the trial court, and allow recovery to Gerald Lavergne, a dissent would cause a five-judge re-argument, which I would rather avoid, and (2) for the reason that although I disagree with the case of Rue v. State of Louisiana, Department of Highways, 372 So.2d 1197 (La.1979), we are nevertheless bound by it.

With reference to the future of Rue, I note with particular interest our recent case of Brown et al v. Louisiana Department of Highways et al, 373 So.2d 605 (La.App. 3 Cir. 1979), in which the Louisiana Supreme Court at 376 So.2d 1269, denied a writ of certiorari with two justices voting to grant the writ to “overrule Rue v. State Depart ment of Highways, 372 So.2d 1197 (La.1979)”.

      . We note that reasons for the judgment in this case were signed January 3, 1979, with the judgments being signed May 8, 1979 (Sinitiere-Henry, Number 7424), and July 13, 1979 (Lav-ergne, Number 7425). Rue appeared in the advance sheets dated August 23, 1979, of the Southern Reporter Second (the decision was handed down on June 25, 1979, with rehearing denied on July 27, 1979). Rue was thus not available to the trial judge when he wrote his reasons and signed the judgments.