author: WATSON, Justice.

text:
    STATE of Louisiana v. Joe Buddy OLIVER.
    No. 66918.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Sp. Prosecutor, for plaintiff-ap-pellee.
    Wellborn Jack, Jr., Jack, Jack, Cary & Cary, Shreveport, for defendant-appellant.
   WATSON, Justice.

Defendant, Joe Buddy Oliver, was tried and found guilty of first degree murder. LSA-R.S. 14:30. After the sentencing hearing, the jury was unable to agree on a recommendation, and the trial court sentenced him to life imprisonment, without benefit of probation, parole or suspension of sentence. LSA-C.Cr.P. art. 905.8. Defendant appeals from the conviction and sentence, relying on fifteen assignments of error.

Bobby Nix and Billy Gordon were murdered on January 17, 1978. Either defendant Oliver or Roy Spearman was in the back seat of the automobile occupied by the four young men and fired the fatal shots. Nix, who was involved in drug activity with Oliver and Spearman, was the primary target. Gordon had the misfortune of being present. Prior to this trial, Spearman pleaded guilty to second degree murder and was sentenced to life imprisonment. He and Oliver gave conflicting testimony; each named the other as the person firing the shots.

Assignments of error number five, six, twelve and thirteen, relating to the prosecutor’s argument that Oliver, a white man, had previously raped a black woman, have merit. The other assignments of error will not be considered.

Oliver had one prior conviction of attempted armed robbery. He had been accused of raping one of the victims of that crime. The prosecution advised the defense that this fact would be brought before the jury. Counsel for defendant argued the extreme prejudice to his client and asked that the prosecution be instructed not to ask about rape. (Tr., Vol. 5, pp. 11-26) The court ruled that the facts of the prior conviction were proper subjects for jury consideration, relying on State v. Jackson, 307 So.2d 604 (La., 1975). An objection was made to the ruling.

Jackson, supra, has been severely criticized. See 36 La.L.Rev. 662; State v. Williams, 339 So.2d 728, (La., 1976); the concurrence by Justice Tate in State v. Dupar, 353 So.2d 272 (La., 1977); the dissent by Justice Calogero in State v. Chenier, 343 So.2d 177 (La., 1977); and 38 La.L.Rev. 899. Even the leeway allowed by Jackson has its limits. The trial court has the duty of restricting an inquiry into details of a past conviction within reasonable bounds. State v. Brown, 371 So.2d 746 (La., 1979). However, regardless of the merits of the Jackson decision, it cannot control the result here.

Despite the trial court’s ruling, there is no evidence in this record that Oliver ever raped anyone. The prosecutor first established that the victim of the prior robbery was black and then read from what he referred to as a “Judgment” the following:

“tell me if this is correct or not. ‘After the Defendant had taken the victim’s money, he then forced her in the back seat of the automobile where he had intercourse with her’?” (Tr., Vol. 7, p. 95)

Defense counsel’s objection to the question was overruled, but it was never answered. The prosecution proceeded as though there had been an affirmative reply.

In closing argument, the prosecutor was trying to convince the jury that Oliver rather than Spearman fired the fatal shots. He argued the prior offense, stating:

“There wasn’t anybody in the back seat of that car at Walker’s Restaurant but him. One person pulled a knife on that woman, but him. Wasn’t but one person that robbed her and raped her, but him.” (Tr., Vol. 8, p. 290)

Defense counsel made a strenuous objection and the trial court ruled that there would be “. . . no further comment about that.” (Tr., Vol. 8, p. 290). It is not clear to whom the remark was addressed. The prosecutor went on after the court spoke:

“You recall Joe Buddy Oliver’s testimony, when I was reading to him the facts. Yes, that is what he was convicted of.” (Tr., Vol. 8, p. 290)

Subsequently, in rebuttal, the prosecutor referred to Oliver as: “The man that committed an armed robbery and rape.” (Tr., Vol. 8, p. 315) After objection, the trial court asked that the remark not be repeated but failed to reprimand the prosecutor, as requested. The jury should have been admonished to disregard the remark. LSA-C.Cr.P. arts. 770, 771. Compare State v. Sykes, 364 So.2d 1293 (La., 1978). The prosecutor then alluded to “the facts” and “details” of the “other crime”, which “they” didn’t want the jury to hear. (Tr., Vol. 8, p. 316). Throughout his rebuttal, the prosecutor referred, directly and indirectly, to armed robbery and rape. The rape was not even in evidence. In addition to its appeal to prejudice, the argument exceeded the scope of proper rebuttal. LSA-C.Cr.P. art. 774.

The prosecutor did not use the evidence of a prior conviction to impeach Oliver’s credibility, as allowed by LSA-R.S. 15:495. There is nothing in the record to show that Oliver was ever even charged with rape. Yet, the prosecutor presumed for jury argument that there was a conviction. The irrelevant details of a prior course of conduct were used not only to attack Oliver’s credibility, but to secure a conviction in violation of LSA-R.S. 15:491 and 15:494.

Jackson, supra, involved cross-examination of a witness other than the defendant. None of the cases extending the ruling of Jackson to defendants testifying in their own behalf involved the extreme prejudice presented here. Jackson must be narrowly, rather than broadly, construed and care must be taken to avoid prejudice to the rights of the accused by expansive. reference to details of a former conviction.

In State v. Morrison, La., 343 So.2d 182 “There was no impermissible reference to other criminal conduct by the prosecution.” 343 So.2d 184. In State v. Elzie, 351 So.2d 1174 (La., 1977) defendant was charged with rape, had three prior convictions and also admitted to a rape accusation in connection with a prior simple battery charge. Although the evidence was prejudicial, it at least concerned a crime similar to the one with which defendant was charged. There is no indication that the prosecution exploited the evidence. In State v. Dupar, 353 So.2d. 272 (La., 1977) and State v. Carter, 363 So.2d 893 (La., 1978) the questions about a prior conviction were directed only at defendant’s credibility. In State v. Thompson, 364 So.2d 908 (La., 1978) the facts elicited from defendant about his former convictions on minor charges actually minimized the nature of those crimes. State v. Sykes, supra, involved a defendant convicted in the past of manslaughter who was asked at trial if he had been charged with murder. An objection to the question was sustained and the jury was admonished to disregard the question. State v. Chenier, 343 So.2d 177 (La., 1977) was a case where the details elicited appear on the surface to be innocuous.

The jury must have thought Oliver to be a rapist and hence disposed to violence. This inference, drawn solely from the prosecutor, was highly prejudicial. A past accusation was used to convict Oliver of these murders. There was a clear violation of LSA-R.S. 15:495 and 15:446.

The evidence was that Spearman rather than Oliver had a motive to kill Nix. A psychiatrist testified that Oliver’s personality made him a follower of leader Spearman. It is quite possible that the jury would have brought in a different verdict if the irrelevant evidence about the details of the alleged rape had not established defendant to be capable of violent criminal acts. The record strongly indicates that this evidence, which had no probative value, led the jury to convict Oliver because he was a bad person who had probably committed this double murder. The substantial prejudice prevented a fair trial. LSA-C.Cr.P. art. 921; LSA-Const. Art. 1 § 16. The conviction and sentence must be reversed.

For the foregoing reasons, the conviction and sentence of defendant are reversed, and the matter is remanded for a new trial.

REVERSED AND REMANDED.

      . LSA-R.S. 15:495 provides:
      “Impeachment by Evidence of conviction; condition precedent to proof by others; prohibition against cross-examination as to indictment or arrest
      “Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

      . LSA-R.S. 15:491 provides:
      “When the general credibility is attacked, the inquiry must be limited to general reputation, and can not go into particular acts, vices or courses of conduct.”

      . LSA-R.S. 15:494 provides:
      “It is not competent to impeach a witness as to collateral facts or irrelevant matter.”

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


source: Caselaw Access Project

author: BLANCHE, Justice.

license: Public Domain

text:
    Jerry D. KIRK v. TOWN OF WESTLAKE et al.
    No. 67283.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.

      Jerry D. Kirk, in pro. per.
    John L. Van Norman, III, Rester, Van Norman & Wright, Lake Charles, for defendants-appellants.
   BLANCHE, Justice.

This case was consolidated for argument with Baehr, et al. v. City of Lake Charles, 387 So.2d 1160 (La.1980) as the two involve the same issue: whether the court below was correct in its determination that portions of the zoning ordinances of the respective cities are unconstitutional by application of the rule enunciated by this court in Summerell v. Phillips, 282 So.2d 450 (La.1973). The zoning ordinances are so alike as to be virtually the same, and the portions declared unconstitutional follow almost word for word. This case is before us on appeal pursuant to La.Const. art. V, § 5(D) (1974).

In the instant case, plaintiff owns a tract of land in the Town of Westlake. Plaintiff sought to obtain a building permit in order to construct a mobile home park on the property. This permit was denied by the town’s building inspector on the grounds that the application failed to comply with the town’s zoning ordinance because plaintiff had not obtained the “approval and issuance of a mobile home park permit” in advance. Plaintiff was unable to obtain this mobile home park permit for the reason that the property was not zoned for a mobile home park but was, in fact, zoned R-l for Single Family Residence and R-M for Multi-Family Residence. An earlier attempt by plaintiff to have the property rezoned to the classification T-l, for Mobile Home Park, Type A, culminated in a denial by the Town of Westlake. In a court challenge to that denial, the Third Circuit Court of Appeal found the town’s present classification of the property to be reasonable and found that the town acted within its power in denying the rezoning. We denied writs in that case.

After considering the issue, the district court ruled that the ordinance was unconstitutional for the reason that “[t]he council could refuse a ‘T’ district upon the application of one individual and yet grant it for another similarly situated, [and] [t]he zoning ordinance does not set forth sufficient guidelines and criteria to insure that all those similarly situated will be treated alike”, relying on our decision in Summerell, supra.

In Summerell we were faced with a situation which was quite different from the one herein. In that case, the ordinance at issue contained a specific provision that a trailer park would be permitted, with the approval of the zoning authority, in certain specified districts, i. e. in districts which had already been classified and zoned otherwise in the zoning ordinance but which were specifically listed as susceptible of having areas designated within them which the zoning authority could reclassify so as to permit construction of mobile home parks. However, that ordinance provided no criteria as a guide for the zoning authority to follow in order to determine whether individual permits would be granted or denied, and plaintiff in that case was denied a permit in a manner deemed arbitrary. Crucial to the holding in the issue was the finding that the ordinance left it entirely within the discretion of the zoning authority to grant or deny the permit, and this facet of the ordinance led us to rule that it was unconstitutional.

In the present case, the ordinance involved makes no provision for the establishment of trailer parks in districts already bearing some other designation. Trailer parks are restricted to those areas zoned only for that purpose, and areas zoned R-l and R-M (such as the property here in question) are restricted to specified uses, among which is not included use as a mobile home park. Thus the question with which we are faced is substantially different to the question which we faced in Summerell. There, full discretion was given to the zoning authority to vary the classification in the district in question, but no criteria were provided for the exercise of that power; here, no such power is given in the first place. Once an area has been zoned for a specified purpose, it is restricted in use to whatever use is set out in that classification. The use may only be changed if the area is rezoned. A rezoning denial has already been judicially determined to have been properly refused plaintiff, and there may be no use of this property for the purpose of construction of a trailer park.

The court below was in error in applying the jurisprudential rule which we enunciated in Summerell in a situation which is quite different and to which the rule is inapplicable.

Plaintiff raises a second issue that the ordinances prohibiting the use of his land as a mobile home park were improperly promulgated and, therefore, null. This issue was not addressed by the district court in its written opinion; we make no ruling on this, preferring to remand the case for full consideration of this question by the lower court.

The decision of the district court on the issue of the constitutionality of the ordinance is, therefore, reversed and the case is remanded for disposition on those issues not previously considered.

REVERSED AND REMANDED.

      . Kirk v. Town of Westlake, 373 So.2d 601 (La.App. 3d Cir. 1979), writ den. 376 So.2d 1268 (La.1979).

      . The sections of the ordinance affected by the ruling of the court below stated:
      Section 12-3003 Permit.
      Prior to the issuance of a building permit by the building inspector, the town board shall approve a mobile home park permit, “A” or “B” type. Application for a permit shall be made in writing to the town engineer, signed, and shall contain the name and address of the applicant; location and address of the mobile home park; legal description of the property to be used for the mobile home park; and accompanied by a site plan and by the deposit of a fee of $75; provided however, the town engineer shall reserve the right to refuse to examine any incomplete, unintelligible or indefinite drawings or plans, and such proposed mobile home parks, type “A” or “B” plans shall conform to the minimum standards as set out in sections 12-3005 and 12-3006 respectfully of this chapter. All petition? for a mobile home park permit shall be submitted in accordance with section 12-2011 of this part, with respect to public hearings of planning commission and town board.
      Section 12-3004 Building permit required.
      No person shall erect, or construct or proceed with the erection or construction, add to, enlarge, improve, alter, repair, convert, extend or demolish any mobile home park, type “A” or “B,” mobile home coach stand, building structure, fence or any part thereof, or install any plumbing, electrical or mechanical equipment as a part of the site, building or structure, or make any,other improvements to any mobile home coach lot as defined herein without obtaining a building permit from the building inspector: provided, further, that in the case of lots situated in a mobile home park type “A” or “B,” the building permit shall be granted only after a permit for a type “A” or “B” mobile home park, as set out in section 12-3003 of this chapter has been granted by the town board and that such conforms to the permit approved and/or granted by the town board and on file in the planning department. (Ord. No. 186 as amended by Ord. No. 204 and Ord. No. 231, 8/13/77, Sec. 1(D)).


text:
    Thomas BAEHR et al. v. CITY OF LAKE CHARLES.
    No. 67284.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Glen A. James, Sulphur, for plaintiff s-appellees.
    Michael K. Dees, McHale, Bufkin & Dees, Lake Charles, for defendant-appellant.
   BLANCHE, Justice.

This case is a companion to Kirk v. Town of Westlake, et al, 387 So.2d 1157 (La.1980). The cases were consolidated for argument as both involve the issue of the correctness of the ruling below which held unconstitutional portions of the zoning ordinances of each city.

In the instant case, plaintiffs own a tract of land which is within the City of Lake Charles and which is zoned R-l, Single Family Residential. Plaintiffs applied to the Lake Charles Planning and Zoning Commission to have the property rezoned T-l so that they could build a mobile home park. Following a public hearing, the commission denied plaintiffs’ request for rezoning. Later, at a meeting and public hearing, the City Council also rejected plaintiffs’ proposal to rezone and followed the recommendation of the Planning and Zoning Commission in denying a change in the zoning of the property.

This suit followed in which plaintiffs claimed that the ordinance requiring them to obtain a trailer park permit before establishing a trailer park was unconstitutional since no objective standards for granting or denying the permit were set forth in the ordinance. Second, they claimed that the refusal of the city to rezone the property was (among other things) arbitrary, capricious, and an abuse of discretion.

Addressing the first issue, the district court granted summary judgment in favor of plaintiffs and ordered the issuance of a building permit. Basing its ruling upon our decision in Summerell v. Phillips, 282 So.2d 450 (La.1973), the court below found the situation in that case to be the same as the one herein and held that two sections of the ordinance involved were constitutionally invalid. The district court did not reach the second issue. This appeal followed pursuant to the authority of La.Const. art. V, § 5(D) (1974).

The Summerell and Kirk cases involved suits contesting the denial of building permits for mobile home parks. The instant case concerns the denial of a request for rezoning. Plaintiffs herein never applied for a permit of any type and, therefore, were never denied a permit. As a general rule, the constitutionality of a statute or ordinance is only open to attack by a person whose rights are affected thereby, and a showing must be made that enforcement of the statute or ordinance will be an infringement of his rights. McCauley v. Albert E. Briede & Son, 231 La. 36, 90 So.2d 78 (1956); Vieux Carre Property Owners and Associates, Inc. v. City of New Orleans, 246 La. 788, 167 So.2d 367 (1964). Since no permit was requested and denied, plaintiffs are in no position to claim prejudice resulting from the permit scheme. In ruling that the permit procedure found in the ordinance was unconstitutional, the district court was deciding an issue not properly before it in a case involving a refusal to rezone.

Plaintiffs’ contention that the denial of the zone change was unconstitutionally refused was not addressed by the district court when it granted plaintiffs a summary judgment and ordered the issuance of a building permit. Since we have no record upon which to make our own determination of this issue, we prefer to remand the case for full consideration of this question by the lower court.

The judgment of the district court granting summary judgment in favor of plaintiffs is, therefore, reversed and the case is remanded for disposition of the issue not previously considered.

REVERSED AND REMANDED.

      . “Sec. 3. Permit
      “Prior to the issuance of,a building permit by the Building Inspector, the City Council shall approve a trailer park permit. Application for a permit shall be made in writing to the Director of Planning, signed, and shall contain the name and address of the applicant, location, and address of the trailer park, legal description of the property to be used for the trailer park, and accompanied by a site plan and by the deposit of a fee of Seventy-Five Dollars ($75.00) provided, however, the Director of Planning shall reserve the right to refuse to examine any incomplete, unintelligible or indefinite drawings or plans, and such proposed trailer park plans shall conform to the minimum standards as set out in Section 5, of this Article. All petitions for a trailer park permit shall be submitted in accordance with Article XV of this Ordinance, with respect to Public Hearings of Planning Commission and City Council. Permits for mobile home subdivisions shall be obtained in the same manner as for trailer parks. In addition, mobile home subdivisions must conform to both the minimum standards of Section 6 of this Article, and all the requirements as set forth in the Subdivision Regulations of Article XI of this Ordinance.” “Sec. 4. Building Permit Required
      “No person shall erect or construct, or proceed with the erection or construction, add to, enlarge, improve, alter, repair, convert, extend or demolish any trailer park or mobile home subdivision, trailer coach stand or mobile home stand, building structure, fence or any part thereof, or install any plumbing, electrical or mechanical equipment as a part of the site, building or structure, or make any other improvements to any mobile home lot or trailer coach lot or cause the same to be done within a mobile home subdivision or trailer park as defined herein without obtaining a building permit from the Building Inspector, provided further that said building permit shall be granted only after a permit for a trailer park or mobile home subdivision, as set out in Section 3 of this Article has been granted by the City Council and that such conforms to the permit approved and/or granted by the City Council and on file in the Planning Department.”

      . Were this issue properly before this Court at this time, we would be constrained to follow the holding and rationale of the companion case, Kirk v. Town of Westlake, supra, since the ordinances involved and facts presented are almost identical.


author:
DENNIS, Justice. MARCUS, Justice CALOGERO, Justice,
      WATSON, Justice,

text:
    Mrs. Anna K. GELE et al. v. Earl MARKEY and Hanover Insurance Company.
    No. 65291.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.
    George O’Dowd, New Orleans, for plaintiffs-applicants.
    John W. Waters, Jr., New Orleans, for defendants-respondents.
   DENNIS, Justice.

Certiorari was granted to decide whether a tenant may recover damages for emotional distress resulting from the destruction of his property caused by a defect in the premises. The trial court awarded damages for property damage and emotional distress to the plaintiffs, who operated a grocery in building space leased from defendant, because a defective ceiling collapsed, destroying merchandise and resulting in termination of the business. The court of appeal, 379 So.2d 763, affirmed the award of property damages, but set aside the award for emotional distress because the lease did not have intellectual enjoyment as its principal purpose, citing Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). Although the court of appeal’s reasoning may be questioned insofar as it would withhold emotional distress damages as a matter of law from a tenant whose property is damaged by a premises defect, we conclude that its result is correct because the plaintiffs failed to prove they actually suffered emotional distress.

The lessees, Mr. and Mrs. Gele, an elderly couple, owned and operated a grocery store in building space leased from Earl Markey. The business had been conducted by the Geles at the same location for nearly twenty years. On February 6, 1975, after the Geles had closed the store and gone home, the ceiling collapsed, damaging most of their merchandise and equipment. This calamity, the unstable financial condition of the business, and Mr. Gele’s poor health caused the elderly couple not to reopen.

The trial judge found that, despite marginal profitability, the Geles maintained the grocery as their primary activity, purpose, and source of hope and fulfillment. In the judge’s words, “Because of Mr. Gele’s illness, the store, though a marginal operation, represented the couple’s only hope, until the ceiling literally fell in on them. Their desperation was depicted by Mrs. Gele’s appearance on the stand more graphically than mere words could ever describe.” He awarded Mrs. Gele $4,500, and Mr. Gele $3,000 for mental anguish or distress in addition to $3,200.05 for property damage.

The court of appeal affirmed the award for property damage, but held that the Geles were not entitled to recover for mental anguish because “damages for mental anguish for breach of contract are not allowed in Louisiana unless the object of the contract is intellectual enjoyment.” Gele v. Markey, 379 So.2d 763 (La.App. 4th Cir. 1979).

Several underlying concerns prompted us to review the court of appeal’s decision. First, there appeared to be a good possibility that a principal object of the lease contract was the Geles’ intellectual enjoyment of operating a monetarily unprofitable, but sentimentally rewarding, family business. Second, the application of the Meador interpretation of Article 1934(3) to this case seems to work injustice, if the Geles suffered real, substantial emotional distress or loss of intellectual enjoyment because of the violation of the lessor’s obligation. Third, the court of appeal did not appear to have considered whether the record would support an award of emotional distress damages as the result of a delict or quasi-delict.

The availability of mental distress damages in actions for breach of contract was restricted substantially in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). In that case we held that under a proper interpretation of Civil Code article 1934(3), nonpecuniary damages could be awarded in an action for breach of contract only if the contract had as a principal object gratification of some intellectual enjoyment. We acknowledge that this rather inflexible rule has received judicial and scholarly criticism. See, e. g., Meador, supra, 332 So.2d at 438 (Dixon, J., dissenting); Johnson, The Work of the Louisiana Appellate Courts for the 1976-1977 Term-Obligations, 38 La. L. Rev. 345 (1978); Litvinoff, Moral Damages, 38 La. L. Rev. 1 (1977). We are also aware that courts both before and after Meador have awarded mental distress damages when adequately proved in cases similar to the instant one. E. g., Tidwell v. Meyer Bros., 160 La. 778,107 So. 571 (1926); Elston v. Valley Electric Membership Corp., 381 So.2d 554 (La.App. 2d Cir. 1980); Nacol v. Wail, Inc., 219 So.2d 333 (La.App. 1st Cir. 1969); Nickens v. McGehee, 184 So.2d 271 (La.App. 1st Cir. 1966). Certain other lower court opinions in redressing plaintiffs for lessor’s breach of the obligations imposed on him in Civil Code article 2695 have included strict liability language, indicating perhaps that a delic-tual cause of action is available. See, e. g., Pollard v. Roberts, 306 So.2d 801 (La.App. 2d Cir. 1975); Evans v. Does, 283 So.2d 804 (La.App. 2d Cir. 1973); King v. Allstate Ins. Co., 224 So.2d 42 (La.App. 1st Cir. 1969); Anselm v. Travelers Ins. Co., 192 So.2d 599 (La.App. 3d Cir. 1966). Elements of contract and tort are sometimes so intertwined that cases cannot be easily labelled one or the other. E. g., Hoffman v. All Star Ins. Corp., 288 So.2d 388 (La.App. 4th Cir. 1974); Holland v. St. Paul Mercury Ins. Co., 135 So.2d 145 (La.App. 1st Cir. 1961). Under our system of fact pleading such labelling should be of little importance. Meador, supra, 332 So.2d at 439 (Dixon, J., dissenting). As stated in Meador, it is well established that damages for mental anguish are recoverable in tort actions. 332 So.2d at 438. See Cooks, Mental Anguish Arising From Property Damage, 3 So. Univ. L. Rev. 17 (1976).

Upon examination of the record, however, we conclude that the court of appeal reached the correct result because the plaintiffs failed to prove that they suffered real, substantial emotional distress or loss of intellectual enjoyment because of the ceiling’s collapse. Because of her husband’s illness, which was unrelated to the destruction of their store, Mrs. Gele was the only witness for the plaintiffs. During her testimony, Mrs. Gele stated that before the accident she and her husband had hope of making the store profitable; she testified that after the accident they were “distraught”. Beyond this one word she did not attempt to explain their mental states. Moreover, her testimony was ambiguous as to whether they were distraught because of her husband’s poor health, the destruction of their merchandise, or for other reasons. Nor is there any real evidence that the Geles derived substantial intellectual enjoyment from the operation of their store. Mrs. Gele testified that they would have considered selling it for a “nice amount” and indicated their main motive in staying in business had been to “feed five kids.”

Even the doctrinal writers who advocate a more liberal, flexible approach to the award of moral damages in contract actions caution that, in a commercial or business context, such awards would be rare and appropriate only if the damages were clearly proven. Johnson, supra, 38 La. L. Rev. at 351; Litvinoff, supra, 38 La. L. Rev. 20, 27. The record in the present case does not support a finding that the Geles suffered this type of loss because of the collapse of the ceiling in their grocery store. Accordingly, the judgment of the court of appeal is affirmed.

AFFIRMED.

MARCUS and CALOGERO, JJ., concur and assign reasons.

SUMMERS, C. J., concurs in the decree only.

BLANCHE, J., dissents.

WATSON, J., dissents and assigns reasons.

MARCUS, Justice

(concurring).

I concur, being of the opinion that the court of appeal correctly stated the law as set forth in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), that the plaintiffs were not entitled to recover for mental anguish because “damages for mental anguish for breach of contract are not allowed in Louisiana unless the object of the contract is intellectual enjoyment.” In Meador, we held that under a proper interpretation of La.Civ. Code art 1934(3), pecuniary damages could be awarded in an action for breach of contract only if the contract had as its principal object gratification of some intellectual enjoyment. Such is not the case here.

CALOGERO, Justice,

concurring.

I joined in the writ grant in this case, not because of any displeasure with Meador, nor because there was likely any serious contention that a principal object of the contract in this case was intellectual enjoyment, but rather to consider the possibility that La. Civ. Code art. 2695, concerning this lessor-lessee relationship, might facilitate collection of damages without limit, including those for emotional distress.

Because we conclude that plaintiffs failed to prove that they suffered real, substantial emotional distress because of the ceiling’s collapse, it becomes unnecessary to determine whether the present case is distinguishable from Meador.

WATSON, Justice,

dissenting.

If the majority is correct that plaintiffs proved a cause of action for emotional distress, then the difficulty of assessing damage does not prevent an award. The judgment of the trial court is not clearly wrong and should be reinstated.

I respectfully dissent.

      . La. Civ. Code art. 2695 provides in pertinent part as follows:
      . . and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”


author:
BLANCHE, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Richard Michael DOWLING.
    No. 66364.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Dissenting Opinion Sept. 24, 1980.
    Rehearing Denied Oct. 6, 1980.

      Henry C. Walker, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant, Richard Michael Dowling, was indicted by a grand jury on charges that he “Did knowingly and intentionally produce a Schedule I Controlled Dangerous Substance, namely marijuana (R.S. 40:964(C)(10), Schedule I), contrary to L.R.S. 40:966(A)(1).” A jury tried and convicted Dowling of this offense. The trial judge sentenced him to three years imprisonment at hard labor, suspended the sentence and placed defendant on probation for the three-year period. The court further ordered that he exercise an option of either serving one year in prison or paying a fine of $5,000. On appeal, defendant raises three assignments of error, contending that: (1) his indictment was invalid; (2) the trial court erred in denying his motion to suppress; and (3) the sentence-for his offense was improperly imposed and is excessive.

The record from the trial court reflects the following series of events which led to defendant’s arrest and conviction for the above offense. On November 6, 1978, sometime after 11:00 p. m., defendant telephoned either the operator or the Minden City Police (there is conflicting testimony on this point) requesting an ambulance and reporting that a shooting had occurred at his residence in Minden, Louisiana. The police dispatcher relayed this information to the two City Police officers on duty that night, and the officers proceeded to defendant’s residence. Defendant’s wife testified that prior to the arrival of the police, and after her husband telephoned for aid, she phoned the Minden Police and asked that they “please, please get somebody over here fast and call an ambulance, too.”

When the two officers reached the Dowl-ing residence they found Mrs. Dowling standing in the driveway near the road. She told them that her husband had shot a man in their house, told them to go into the house, and described to one of the policemen where the bedroom was where the shooting had occurred, and where the victim lay. Defendant was standing at the rear entrance to the home when the officer entered there to locate the reported shooting victim. Defendant made no move to stop this policeman from entering his home, nor did he-request, at this point in time or later, that the law enforcement officials in any way limit their survey of his home and their investigation of the shooting he and his wife had reported. One of the policemen arrested defendant and took him to police headquarters after the other had located the victim in the room indicated by defendant’s wife, and had pronounced him dead.

At this point, the Minden City Policemen called the Webster Parish Sheriff’s Department for aid in the investigation of the shooting. The chief investigator for the Sheriff’s Department began reconstructing the events surrounding the shooting incident when he arrived at the scene. He concluded that two guns may have been fired that night at the Dowling residence-a gun found next to the victim’s body and one belonging to the defendant and which defendant’s wife turned over to the investigator in the course of the investigation.

He then searched for bullets and found several markings he thought to be bullet holes, including one (later determined to be a ricochet mark from a bullet) in the ceiling of the living room which adjoins the bedroom where the shooting occurred. After this discovery the investigator ordered a deputy to go up into the attic of the home and look to see whether a bullet at this location, or any other, had gone through the ceiling and into the attic. (The deputy testified that a bullet hole might be located by tracing light shining into a dark attic from below).

This deputy entered the attic by means of a pulldown stepladder type device, and began working his way, with a flashlight toward the area in the attic above the living room ceiling. While looking for bullet holes and bullets, the deputy encountered a hood hanging by ropes from the ceiling of the attic, with ultraviolet “grow lights” under it, and with an automatic timing device attached. Beneath the hood and lights were a number of pots, each containing several small plants. The deputy testified that he suspected, from the appearance of the plants (which other testimony indicates then averaged four to five inches in height) that they were marijuana plants.

He located the hood, lights, timing device and plants in the attic directly above the living room ceiling where the chief investigator initially suspected a bullet had entered the ceiling. After completing his search for bullet holes and bullets, he returned from the attic and told the chief investigator he had found marijuana growing in the attic. The chief investigator, another sheriff’s deputy and two city policemen then went up into the attic and indicated that they, too, believed the plants were marijuana, and the plants were ordered seized. It was later determined that there were twelve pots containing ninety-eight plants, which chemical tests confirmed were marijuana plants, in the Dowl-ing attic.

Subsequent to the above events, defendant was not prosecuted for any offense arising out of the shooting that occurred on November 6, 1978. A grand jury returned a “no true bill” in that matter. Defendant raises the following assignments of error in connection with the Production of Marijuana charge and conviction.

Assignment of Error Number 1

In defendant’s first assignment of error, he contends that the trial court erred in failing to sustain his motion in arrest of judgment wherein defendant alleged that his indictment for this offense contained an error of substance and was invalid. As indicated in the language quoted at the outset of this opinion, the indictment charges that defendant produced a Schedule I Controlled Dangerous Substance. The indictment is erroneous in that marijuana had been reclassified by the legislature as a Schedule II substance at the time of defendant’s arrest. Therefore, the indictment should have charged defendant with a violation of R.S. 40:967(A)(1), the statute dealing with production of Schedule II drugs, rather than R.S. 40:966(A)(1), which proscribes production of Schedule I drugs.

Notwithstanding this technical error, the indictment adequately informed defendant of the nature of the charges against him (producing a controlled dangerous substance, namely, marijuana), and defendant was not prejudiced by the defect. Furthermore, in answer to defendant’s request, the state furnished him a Bill of Particulars prior to trial which, in summary, charges that defendant produced marijuana in twelve pots located beneath an ultraviolet light equipped with a timing device and located in the attic of his home at 809 Center Street in Minden, Louisiana. A technical insufficiency in an indictment may not be raised for the first time after conviction where the indictment fairly informs the accused of the charge against him and the defect does not prejudice him. State v. Turner, 337 So.2d 1090 (La.1976); State v. Anderson, 332 So.2d 452 (La.1976); State v. Murray, 357 So.2d 1121 (La.1978). We affirm the trial court’s denial of defendant’s motion in arrest of judgment.

Assignment of Error Number 2

In his second assignment of error, defendant disputes the trial court’s denial of defendant’s motion to suppress. The trial court ruled, in a written per curiam opinion, that the warrantless search and seizure was justified and evidence found pursuant to the search admissible. The trial judge reasoned that the evidence sought to be suppressed was in “plain view”, and was found while the deputy was making a search incident to a lawful arrest in the course of a homicide investigation and was, therefore, in a place where he had a right to be.

We find that this warrantless search and seizure was justified on other grounds. It is a very well established rule that a search conducted without a valid warrant is per se unreasonable, and that there are only a few specifically established and well delineated exceptions to this rule. Katz v. United States, 389 U.S. 347, 88 S.Ct. 407, 19 L.Ed.2d 576 (1967); State v. Guzman, 362 So.2d 744 (La.1978). Consent to search the thing or premises in question is one of these specifically established and well delineated exceptions, Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946); State v. Jolla, 384 So.2d 370 (La.1980) and we find this exception to the warrant requirement applicable in this case.

The defendant himself telephoned either the operator or the City Police to report that a shooting had occurred in his home and to request medical aid for the victim. He watched silently as the police walked by him and into his home when they arrived at the scene. Defendant’s wife testified that she phoned the police before they arrived in response to the defendant’s call, asking that they “please get somebody over here fast.” She met the police outside her home and stated that her husband had shot a man in the house, directed them into the house, and gave them directions to the room where the shooting occurred and where the victim was to be found. At some point in the investigation which immediately followed, defendant’s wife gave defendant’s gun to the Sheriff’s Department investigators.

We find that under the facts of this case, the defendant and his wife gave their consent to law enforcement officials to search their home in their investigation of the November 6, 1978 shooting incident that occurred there. It is apparent that the Dowlings requested the presence of the police at their home and wanted them to investigate the facts surrounding the fatal shooting of someone in their home. Mr. Dowling did not retract or limit his consent to investigate when the police arrived, nor did Mrs. Dowling, who, in fact, affirmatively aided the officers in their investigation. Even had defendant not given his consent to the investigatory search, the consent of his wife is a valid authorization to search under these facts. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Dupuy, 319 So.2d 299 (La.1975).

In the course of the investigation, a sheriff’s deputy discovered what he believed to be marijuana plants growing in the attic. The deputy was legitimately in the attic in search of bullet holes and bullets, a search properly within the scope of an investigation of a shooting. The “plain view exception” (it is reasoned that there is no search where this exception is applicable) allows evidence found and seized without a warrant to be used against defendant where: (1) there is a prior justification for police intrusion into a protected area; (2) the evidence is discovered inadvertently; (3) it is immediately apparent without close inspection that the items are evidence or contraband. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Fearn, 345 So.2d 468 (La.1977). We find the plain view exception applicable under the facts of this case.

The prior justification for the police intrusion into the attic was the consent of defendant and his wife to investigate the shooting they reported. The evidence was inadvertently discovered when the deputy approached the area in the attic above the ceiling where a bullet hole was thought to be. It was immediately apparent to the investigating deputy that the ninety-eight plants averaging four to five inches in height, growing in twelve pots beneath a grow light with an automatic timer, were contraband (marijuana).

The deputy testified that he had been working for the Sheriff’s Department for six years, had seen “a lot of marijuana”, and from the appearance of these plants, believed them to be marijuana. Four other law enforcement officials on the scene expressed like beliefs before the plants were seized. It was sufficiently “immediately apparent” that the plants were marijuana, although there was no chemical confirmation until later. A police officer should not be required to get a search warrant or to perform chemical testing at the site where the contraband is found before seizing what is “immediately, apparently” contraband properly in plain view.

For the above reasons, the search of defendant’s home and the seizure of the marijuana plants did not infringe upon defendant’s constitutional rights to be free from unreasonable searches and seizures. The search of the house and seizure of the contraband was justified and we affirm the trial court’s denial of defendant’s motion to suppress.

Assignment of Error Number 3

In his last assignment of error, defendant contests the trial court’s application of the Production of Marijuana sentence to him. He urges that the legislature intended only to punish drug dealers in R.S. 40:967(A)(1), and that he was not, and was not proven to be, selling the marijuana he grew in his home. Defendant proposes that the Possession of Marijuana penalty is more appropriate to his offense. We find no distinction between producer/dealers and producer/non-dealers in the clear wording of the statute and will not read into what wording such an intent. The sentence for Production of Marijuana, the offense defendant has been charged with and convicted of, was properly applied to him.

Defendant also contends that the sentence imposed by the trial court is excessive. The possible sentence for a conviction for Production of Marijuana is imprisonment at hard labor for not greater than ten years and, additionally, a possible fine of not greater than $15,000. Defendant was actually sentenced to a three-year suspended prison sentence and placed on probation for the three-year period. He was further fined $5,000 and given the option of serving a one-year prison term in lieu of payment of this fine.

The trial judge properly considered the sentencing guidelines mandated by C.Cr.P. art. 894.1. In considering two of these guidelines, the trial judge specifically stated that he gave the defendant the benefit of the doubt as to whether he would respond to probation and that the most important consideration in this case was the excessive hardship imprisonment would entail to himself, his dependents and his employees. In light of these factors, the judge suspended the prison sentence, but imposed the $5,000 fine or one year additional prison term. He stated that he did so because he felt that due to the seriousness of the offense, the defendant should pay a substantial fine or serve a prison term. We note that the sentence and fine imposed by the trial judge is far below the maximum for this offense, and find that under the circumstances of this case the sentence is not excessive.

For these reasons, the conviction and sentence of defendant are affirmed.

AFFIRMED.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Under the circumstances of this case, Mary Dowling’s action in admitting the police to her home constituted consent for the police to- enter the house to conduct a prompt and diligent investigation of the shooting incident. While an investigation may be instituted and a valid search and seizure may be made without a warrant where an individual consents, a consent search is reasonable only if kept within the bounds of the actual consent. See United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971). “A defendant’s consent may limit the extent or scope of a warrantless search in the same way that the specification of a warrant limit a search pursuant to that warrant.” United States v. Dichiarinte, supra ; LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 8.1, 627 (1978). See also State v. Koucoules, Me., 343 A.2d 860 (1978); People v. Superior Court of Los Angeles, 10 Cal.App.2d 122, 89 Cal.Rptr. 316 (1970).

Under the present facts, Mary Dowling’s consent should be construed as being limited to a search of only those parts of the house which were necessary to the investigation of the killing. The police, under these facts, had the right to enter the attic based upon the need to determine whether a bullet fired during the shooting-incident had entered the attic.

Although the officer had the right to enter the attic, the seizure of the marijuana plants was invalid because the conditions necessary for the applicability of the “plain view” doctrine were not present. The following conditions are necessary for the applicability of the “plain view” doctrine: (1) there must be a prior justification for an intrusion into a protected area, (2) in the course of which evidence is inadvertently discovered, and (3) where it is immediately apparent without close inspection that the items are evidence or contraband. State v. Banks, 363 So.2d 491 (La.1978); State v. Parker, 355 So.2d 900 (La.1978). Despite the officer’s right to enter the attic in search of bullets, he did not inadvertently discover the plants and it was not immediately apparent to him, without close inspection, that there was evidence or contraband under the hood. The only possible justification for the officer’s warrantless entry into the attic was to determine whether a mark on the bedroom ceiling was a bullet hole leading into the attic. The evidence reflects that, in fact, no bullets pierced the bedroom ceiling and that the mark was left by a bullet’s ricochet. The testimony and photograph in evidence further convince me that the officer should have determined that no bullet entered the attic at the site of the ricochet mark and concluded his search without searching the entire attic or closely inspecting the potted sprouts with his flashlight. The consent to conduct a warrantless search of the premises in connection with the homicide investigation did not extend beyond a reasonable inspection of the attic related to the single possible : bullet hole.

       Honorable Richard H. Gauthier participated in this decision as Associate Justice Ad Hoc.


author: LEMMON, Justice. DENNIS, Justice, MARCUS, Justice

text:
    BENGLIS SASH & DOOR CO. v. A. P. LEONARDS, d/b/a Chennault 2-10 Properties, and Benny King.
    No. 66427.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.
    Concurring Opinion Nov. 4, 1980.

      Woodley, Barnett, Cox, Williams & Fen-et, Robert W. Fenet and John Lawrence Cox, Jr., Lake Charles, for plaintiff-applicant.
    McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for respondents.
   LEMMON, Justice.

This suit to collect the reasonable retail value of bay windows ordered by defendant Leonards’ architect (with admitted authority) presents the issue of whether a valid contract was struck although the parties at the time of contracting did not state a price certain in money.

Leonards had employed the architect in connection with the renovation of a building into apartments. While Leonards was out of the country, his wife selected certain bay windows for the building, and the architect contacted plaintiff, a building material wholesale dealer, to furnish the windows. Plaintiff had previously furnished other materials to defendant for this and other jobs. Since the desired windows were not stock items, it was necessary to order them specially from the manufacturer. Plaintiff estimated that delivery would take about eight to ten weeks, and the architect indicated satisfaction, without requesting a guaranteed delivery date or otherwise indicating a need for delivery within a certain period. The price of the windows was not discussed, and plaintiff did not require the usual deposit for a special order because of the previous dealings between the parties. Plaintiff placed the order on July 22, 1977 and received delivery on October 6, about 11 weeks later.

In the meantime Leonards had returned home and, being displeased with the progress of the renovation, fired his office manager. Leonards claimed he wrote a letter to plaintiff on September 24, cancel-ling the order because of failure to deliver within the time promised, but plaintiff denied receiving the letter. When the windows arrived, plaintiff contacted Leonards for delivery instruction, whereupon Leon-ards refused to accept the windows. This suit ensued, with Leonards’ sole defense being that the windows were not delivered within the agreed time.

After trial on the merits the trial court found that delivery was timely and rendered judgment awarding plaintiff the invoice price of the windows and interest, but denying attorney’s fees and other items of damages. The court of appeal reversed and dismissed the suit, holding that there was never an enforceable contract, since the parties had never agreed upon a price as required by C.C. arts. 2439 and 2464. 378 So.2d 992. We granted certiorari. 380 So.2d 97.

The four requisites of a valid contract are capacity of the parties, their consent, a certain object and a lawful purpose. C.C. art. 1779. Particular types of contracts, such as a contract of sale, may have other requisites, and if the requisite is missing there is either no contract or a contract of another description. C.C. art. 1764.

C.C. art. 2439 defines the contract of sale and states the circumstances which must concur for the perfection of the contract. Thus, the contract of sale is perfected when one party consents to give a certain thing for a price in money and the other consents to give the price in order to have that thing. Although there must be consent to give and to accept a price, it is not essential that the specific sum of the sales price be stated at the time of contracting. The parties can agree that the price may be ascertained by computation or that the price may be fixed by arbitration. Or the parties can consent to buy and to sell a certain thing for a reasonable price, and when they do, the contract of sale has been perfected. The essential thing is that there be a meeting of the minds (as opposed to a disagreement) as to price.

The crucial question in this case is whether the parties expressly or impliedly agreed to buy and to sell these specific windows at a reasonable price, or stated otherwise, whether there was a meeting of the minds as to price. Since the parties did not discuss price at all at the time of contracting, there was no express agreement to buy and to sell at a reasonable price. However, C.C. art. 1811 provides that the proposition and the assent to a contract may be either express or implied, and there are factors indicating the parties consented to buy and to sell those windows at a reasonable price.

The parties had a history of dealings in which Leonards ordered materials and paid the price stated on the delivery invoice. In the present transaction, moreover, Leon-ards’ authorized agent ordered a specific item which had to be specially ordered from the manufacturer. Although an exact price was not immediately ascertainable, Leon-ards did not object to the price which was eventually charged. Under these circumstances one could reasonably infer that Leonards and plaintiff intended to buy and sell these particular windows at a reasonable price. Thus, the case differs from those cases relied on by defendant such as Stupp Corp. v. Con-Plex, Div. of U. S. Indus., 344 So.2d 394 (La.App. 1st Cir. 1977), in which the parties negotiated price but failed to agree, thereby creating circumstances under which one could not reasonably infer the parties’ implied consent to a reasonable price.

We accordingly hold that consent of the parties to buy and sell the specific item at a reasonable price may be implied from the circumstances of this case and that the contract of sale was perfected before plaintiff ordered the windows from the manufacturer in reliance thereon. The contract was valid and may be enforced by plaintiff.

Since no specific time of delivery was sought or promised, the trial court correctly found that plaintiff did not breach the contract by failure to deliver timely. And since there is no dispute that the price charged was reasonable, we reinstate the award of the trial court in that amount.

Plaintiff also sought to recover (1) the loss of the profit it would have gained if it had been able to reinvest the sales proceeds into its business and (2) attorney’s fees under R.S. 9:2781 for a suit on an open account.

The loss plaintiff characterizes as loss of profits is actually a loss occasioned by the delay in payment, and the only award of damages due for delay in performance of an obligation to pay money is interest. C.C. art. 1935. Since interest was elsewhere awarded, plaintiff’s demand for damages for the so-called loss of profits was properly rejected. However, all debts bear interest from the date due, rather than from judicial demand, and interest should have been awarded from October 6, 1977.

As to attorney’s fees, it is unnecessary to review the trial court’s holding that this was not a suit on an open account, inasmuch as plaintiff did not comply with the statute’s requirement for a written demand.

Accordingly, the judgment of the court of appeal is reversed, and the judgment of the trial court is reinstated, except that interest is awarded from October 6, 1977. All costs are assessed against defendant.

REVERSED AND RENDERED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur in the result reached by the majority, but I respectfully decline to join in the conclusion that the contract between the parties was that of a sale. There is ample codal, jurisprudential and doctrinal authority that a contract which cannot be considered a sale for the lack of certain price can, nevertheless, be construed as an enforceable innominate contract. La. C.C. arts. 1777, 1778; Thielman v. Gahlman, 119 La. 350, 44 So. 123 (1907); Helluin v. Minor, 12 La.Ann. 124 (1857); 1 S. Litvinoff, Obligations, §§ 113-115 in 6 Louisiana Civil Law Treatise 197-99 (1969); Hebert and Lazarus, Some Problems Regarding Price in the Louisiana Law of Sales, 4 La. Law Review, 378, 384-87 (1942); Mashaw, A Sketch of the Consequences for Louisiana Law of the Adoption of “Article 2: Sales” of the Uniform Commercial Code, 42 Tul.L.Rev. 740, 746-47 (1968). See also H. T. Cottam & Co. v. Moises, 88 So. 916 (La.1921).

MARCUS, J., dissents and assigns reasons.

WATSON, J., recused.

MARCUS, Justice

(dissenting).

I agree with the court of appeal that there was never an enforceable contract since the parties had never agreed upon a price as required by La.Civ.Code arts. 2439 and 2464. Section 2-305 of the Uniform Commercial Code provides in pertinent part that the parties may conclude a contract for sale even though the price is not settled. In such a case, the price is a reasonable price at the time of delivery if nothing is said as to the price. However, the Louisiana legislature did not adopt this section of the Uniform Commercial Code. Accordingly, the articles in the Civil Code on sales should control.

I respectfully dissent.

      . At trial Leonards testified the price of the windows did not affect his decision not to accept them.

      . C.C. art. 2439 provides:
      “The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
      “Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.”

      . See General Fin. Corp. of N. O. v. Harrell, 188 So.2d 211 (La.App. 1st Cir. 1966).

      . Shell Oil Co. v. Texas Gas Transmission Corp., 210 So.2d 554 (La.App. 4th Cir. 1968).


author: CALOGERO, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Kirk P. VOSLOH.
    No. 66553.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Rehearing Denied Oct. 6, 1980.
    Dissenting Opinion Nov. 10,1980.
    See 389 So.2d 1336.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Harry Hardin, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Arthur F. Dumaine, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

Defendant Kirk P. Vosloh was charged by bill of information with possession of marijuana with intent to distribute in violation of R.S. 40:967. Following trial, the twelve member jury returned a ten to two verdict of guilty of attempted possession with intent to distribute. Defendant was sentenced to serve two and one-half years at hard labor. On appeal to this Court, defendant argues one assignment of error.

By assignment of error No. 3 defendant claims that the trial judge erroneously overruled an objection made during the state’s closing argument.

During closing argument, the prosecutor commented that the amount of marijuana seized would make approximately 6,000 cigarettes, far more than could be explained by personal use. The prosecutor then said: “He is selling it to children.” Defense counsel objected to this statement on the grounds that there was no evidence that defendant sold any marijuana to children. The trial judge overruled the objection stating: “You will have your opportunity to argue counsel. As I have told this jury, argument of counsel is argument of counsel. Now that is the conclusion he brought up, Mr. Dumaine. . . . Objection overruled.”

The prosecutor’s statement was improper because unsupported by the evidence (See La.C.Cr.P. art. 776), and the objection should have been sustained. However, to reverse the conviction on this ground we would have to be convinced that the challenged remarks influenced the jury and contributed to the verdict. State v. Harris, 383 So.2d 1 (La.1980); State v. Heads, 370 So.2d 564 (La.1979); State v. Lee, 364 So.2d 1024 (La.1978). We are not so convinced. The remark was an isolated comment in the prosecutor’s argument, one which was strenuously disputed by defense counsel in his own argument. Furthermore, while the trial judge did not sustain the objection and admonish the jury to disregard the comment, he did in effect admonish them to give to the prosecutor’s statement only such weight as the evidence warranted when he told them that “argument of counsel is argument of counsel.”

Assignment of error No. 3 does not present reversible error.

Decree

Defendant’s conviction and sentence are accordingly affirmed.

AFFIRMED.

LEMON, J., concurs and assigns reasons.

DENNIS, J., dissents with reasons. [Editor’s note: The dissenting opinion was not filed in time to permit publication with the opinion of the court; it will be separately published.]

LEMMON, Justice,

concurring.

The statement complained of was purely inflammatory and implied possession of evidence not introduced at trial. I am disinclined to encourage such conduct by calling the error harmless, but since I am convinced the isolated statement, when considered with the indirect admonition, did not affect the verdict, I respectfully concur.

      . Defendant was originally tried before a judge and found guilty of the completed offense of possession of marijuana with intent to distribute. Defendant’s motion for new trial on the ground that he had not made knowing and intelligent waiver of the right to trial by jury was granted. The new trial resulted in the verdict from which the defendant takes this appeal.

      . Assignments of Error Nos. 1, 2, 4, and 5 were merely restated in brief and argued neither in brief nor orally. Hence, it is appropriate that this Court not consider them. State v. Sterling, 377 So.2d 58 (La.1979); State v. Johnson, 372 So.2d 1217 (La.1979). Notwithstanding, these assignments lack merit.


author: WATSON, Justice. DENNIS, Justice, MARCUS, Justice

text:
    STATE of Louisiana V. Robert J. STEELE.
    No. 67039.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    Concurring Opinion Sept. 24, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., G. Fred Ours, Louise Korns, Asst. Dist. Attys., Russell Stegeman, Legal Intern, for plaintiff-relator.
    Carey R. Varnado, Jacob Kansas, New Orleans, for defendant-respondent.
   WATSON, Justice.

The State proceeded to. prosecute Steele for negligent injuring subsequent to a plea bargain under which he pled guilty to D.W.I. and the State dismissed a charge of reckless driving. Steele contends that he is being subjected to double jeopardy and the trial court granted his motion to quash. The issue is whether there is double jeopardy under the “same evidence test”.

On August 16, 1979, defendant, Robert J. Steele, attempted to change lanes near the intersection of St. Claude Avenue and Desire Street in New Orleans. His car struck a taxi and propelled it into a pedestrian, Charlotte Nesbitt, standing on the corner. Steele was arrested and charged with reckless operation of a vehicle, driving while intoxicated and negligent injuring. As a result of a plea bargain in Traffic Court for the City of New Orleans, the charge of reckless operation of a vehicle was dismissed and Steele pleaded guilty to driving while intoxicated. Subsequently, the State undertook to proceed on the negligent injuring charge in Criminal District Court. The trial court quashed the charge on the ground of double jeopardy. Upon application of the State, a writ of certiorari was granted to review that ruling.

Both the Louisiana and United States Constitutions prohibit placing a person twice in jeopardy of life or limb for the same offense. United States Constitution, Amendment 5; Louisiana Constitution of 1974, Art. 1, § 15.

LSA-C.Cr.P. art. 596 provides:

“Double jeopardy exists in a second trial only when the charge in that trial is:
“(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
“(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”

Separate statutory crimes need not be identical in constituent elements or in actual proof to be the same within the meaning of the constitutional prohibition. Brown v. Ohio, 423 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); 1 J. Bishop, New Criminal Law, § 1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L.J. 262, 268-269 (1965); State v. Doughty, 379 So.2d 1088 (La., 1980).

The test enunciated by the United States Supreme Court for determining whether two offenses are the same for double jeopardy purposes is whether each statute requires proof of an additional element which the other does not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The “same evidence” test is used in Louisiana. State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Didier, 262 La. 364, 263 So.2d 322 (1972). If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. See State v. Doughty, supra.

The “same evidence test” is somewhat broader in concept than Blockburger, the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct.

The test must be applied first to the charge of D.W.I. and negligent injuring. The two crimes in question do not, according to their definitions, appear to be the same offense. Operating a vehicle while intoxicated is defined as “the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbituates.” LSA-R.S. 14:98(A). Negligent injuring is “the inflicting of any injury upon the person of another by criminal negligence.” LSA-R.S. 14:39. Clearly, there are several elements involved in D.W.I. which are not involved in negligent injuring while the latter charge involves elements not required in D.W.I. The same evidence could not convict of both charges.

Thus, each offense requires proof which the other does not and the two offenses are not subject to a double jeopardy plea.

The “same evidence test” must next be applied to the charges of reckless driving and negligent injuring, since the reckless driving charge was dismissed as a result of a plea bargain and could not be resurrected against defendant. Reckless operation of a vehicle is defined in LSA-R.S. 14:99 as “the operation of any motor vehicle, aircraft, vessel, or other means of conveyance in a criminally negligent or reckless manner.” Under a theoretical application of the Blockburger test, each crime requires proof of an element that the other does not. Reckless operation requires proof that some type of a vehicle was being utilized; negligent injuring does not. Negligent injuring requires proof of an injury; reckless operation does not.

Under the same evidence test, applied in the context of the present case, the proof of the second offense, i. e., driving the vehicle in a criminally negligent manner and injuring the pedestrian would have been sufficient to convict of the first offense, i. e., reckless driving. Therefore, the prosecution of defendant for negligent injuring following the dismissal of the reckless operation charge amounted to a violation of the plea bargain with the defendant by the State. The State was relabeling the offense to charge defendant a second time with the same criminal conduct.

For the reasons assigned, the judgment of the trial court granting defendant’s motion to quash based on double jeopardy is affirmed.

AFFIRMED.

DENNIS, J., concurs with reasons.

BLANCHE, J., dissents.

MARCUS, J., dissents and assigns reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

Applying the distinct fact test, see Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Doughty, 379 So.2d 1088 (La.1980), there is only one offense in this case because the evidence required to support a conviction on the negligent injuring charge would have been sufficient to warrant a conviction on the reckless driving charge. No additional fact, beyond that necessary to prove the negligent injuring charge, was required to warrant a conviction on the reckless driving charge.

MARCUS, Justice

(dissenting).

I disagree with the majority’s finding that the prosecution of the negligent injuring charge constitutes double jeopardy. Louisiana applies the “same evidence test” for determining the identity of offenses where the plea of double jeopardy is raised. In State v. Nichols, 337 So.2d 1074 (La.1976), we stated:

[T]wo offenses are the same for double jeopardy purposes if the same evidence is required for the conviction of each offense. If one offense requires proof of additional facts which the other does not, then the accused may be tried and convicted on both offenses. State v. Cain, 324 So.2d 830 (La.1975), citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), unless the gravamen of the second offense is essentially included within the offense for which first tried, in which case the second prosecution is barred because of the former jeopardy. State v. Smith, 323 So.2d 797 (La.1975); City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State v. Didier, 262 La. 364, 263 So.2d 322 (1972); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972); State v. Foster, 156 La. 891, 101 So. 255 (1924); State v. Roberts, 152 La. 283, 93 So. 95 (1922).

The majority correctly concluded that the same evidence could not convict the defendant of both the driving while intoxicated and the negligent injuring charge. However, when the same evidence test is applied to the reckless operation of a vehicle and the negligent injuring charge, the result does not require the dismissal of the subsequent prosecution because the negligent injuring charge requires proof of an additional fact not essential to a charge of reckless operation of a vehicle, i. e., the injuring of a person. Furthermore, the gravamen of the negligent injuring charge is not essentially included within the reckless operation of a vehicle offense. The gravamen of negligent injuring is “the inflicting of any injury upon the person of another by criminal negligence.” La.R.S. 14:39. The reckless operation of a vehicle charge requires criminal negligence or recklessness while operating a vehicle but does not require an injury to the person of another. La.R.S. 14:99. Therefore, the gravamen of the second offense (negligent injuring) is not essentially included within the first offense (reckless operation of a vehicle).

Had the opposite situation occurred, i. e., defendant had plea bargained to the negligent injuring charge and subsequently been prosecuted on the reckless operation charge, then the prosecution would be barred due to former jeopardy because the gravamen of the reckless operation charge, i. e., criminal negligence, would be included within the negligent injuring charge.

Accordingly, I respectfully dissent.


author: PER CURIAM.

text:
    STATE of Louisiana v. Ernest J. MORGAN.
    No. 66668.
    Supreme Court of Louisiana.
    Sept. 10, 1980.
    William J. Guste, Jr., Atty. Gen.,- Barbara Rutledge, Asst. Atty. Gen., Harry Morel, Dist. Atty., Norman J. Pitre, Harry Morgan, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Gordon Hackman, Boutte, for defendant-appellant.
   PER CURIAM.

Defendant Ernest J. Morgan was charged by grand jury indictment with negligent homicide in violation of La.R.S. 14:32. After trial by jury on May 30, 1978, he was found guilty as charged, five of the six jurors concurring in the verdict. The trial judge sentenced defendant to serve five (5) years at hard labor. Defendant has appealed his conviction and sentence to this Court relying on eleven assignments of error. Finding merit in assignment of error number seven relating to defendant’s conviction by a less than unanimous jury, we now reverse.

In Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 1625, 60 L.Ed.2d 96 (1980), the United States Supreme Court held “that conviction by a non-unanimous six[-person] jury in a state criminal trial for a non-petty offense deprivefd] [the] accused of his constitutional right to [a] jury by trial.” Subsequently, we held the rule of Burch should not be applied retroactively to juries empanelled prior to the date of the Burch decision on April 17, 1979. State v. Brown, 371 So.2d 746 (La.1979). The Supreme Court has now overturned that decision. In Brown v. Louisiana, - U.S. -, 100 S.Ct. 2214, 2224, 65 L.Ed.2d 159 (1980), the Court has given retroactive effect to Burch for at least those cases on direct review “ . . .in which it can be shown that the vote was in fact less than unanimous.”

The record in this case clearly indicates that defendant was convicted by vote of five of the six jurors. Accordingly, we reverse his conviction under Brown v. Louisiana, supra, and remand the case to the district court for a new trial.

REVERSED AND REMANDED.

       In State v. Jackson, 370 So.2d 570 (La.1979), we then held that despite the provisions of La. Const. 1974, Art. I, § 17 and La.C.Cr.P. Art. 782, Burch compelled unanimous verdicts in cases tried by six-person juries empanelled after the date of decision in that case. The legislature has amended La.C.Cr.P. Art. 782, Acts 1979, No. 56, § 2 to reflect the constitutional requirement of unanimity established by Burch.

       As we read the opinion in Brown, no clear majority of the Supreme Court has emerged on the question whether Burch should be given retroactive application to all cases in which the vote was less than unanimous, or only to those cases still open on direct appeal. Relying on the opinion in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), the concurrences of Powell, J., and Stevens, J. in Brown suggest that retroactive application of Burch should be limited to the latter cases only. We do not reach that question here, as the present case is still on direct review. We think it is clear, however, that a majority of the Supreme Court requires retroactive application of Burch to at least those cases open on direct review, and have acted here accordingly.


text:
    STATE of Louisiana v. Darnell BROWN.
    No. 63171.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    John M. Lawrence, New Orleans, for defendant-appellant.
   PER CURIAM.

On August 23, 1978, after trial before a jury of six persons, defendant Darnell Brown was found guilty as charged of simple burglary, La.R.S. 14:62. The verdict was rendered by a vote of five to one. On appeal this Court affirmed the conviction, holding that although the United States Supreme Court had decided in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 1625, 60 L.Ed.2d 96 (1980) “that conviction by a non-unanimous six-person jury in a state criminal trial for a non-petty offense deprived the accused of his constitutional right to a jury trial,” the Burch rule should not be applied retroactively to juries em-panelled prior to the date of the Burch decision on April 17, 1979. State v. Brown, 371 So.2d 746 (La.1979). Upon application by defendant, the United States Supreme Court granted certiorari to review that holding, Brown v. Louisiana, 444 U.S. 990, 100 S.Ct. 520, 62 L.Ed.2d 419 (1979), and on June 16,1979, reversed the judgment of this Court and remanded the case “for further proceedings not inconsistent with this opinion.” Brown v. Louisiana, -U.S. -, 100 S.Ct. 2214, 2224, 65 L.Ed.2d 159 (1980).

Accordingly, in compliance with the mandate of the Supreme Court of the United States, that conviction and sentence of defendant Brown are reversed and set aside, and the case is remanded to the district court for a new trial before a jury of six persons, with the jury to be instructed that the verdict rendered must be unanimous.

      . In its decision, the High Court has given retroactive effect to Burch for at least those cases on direct review “. . .in which it can be shown that the vote was in fact less than unanimous.” As we read the opinion, no clear majority of that Court has emerged on the question of whether Burch should be given retroactive application in all cases in which the vote was less than unanimous, or only to those cases still on direct appeal. Relying on the opinion in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), the concurrences of Powell, J. and Stevens, J. suggest that retroactive application of Burch should be limited to the latter cases only. We do not reach that question here. See also State v. Morgan, 387 So.2d 1179 (La.1980), No. 66,668.

      . In accordance with La.Const. Art. 1, § 17 (1974), the defendant may elect to waive his right to a trial by jury.


author: WATKINS, Judge.

text:
    Joyce SHERVILLE et al v. NATIONAL UNION FIRE INSURANCE CO. of PITTSBURG, PENNSYLVANIA.
    No. 13244.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 1980.
    Dean M. Wattigny, Armentor & Wattig-ny, New Iberia, for plaintiff.
    James T. Guglielmo, Lewis & Lewis, Opelousas, for defendant.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a summary judgment in favor of defendant-appellee, National Union Fire Insurance Company of Pittsburgh, Pennsylvania (hereinafter called “appellee”) dismissing plaintiffs’ action for damages arising from the death of Vincent L. Sherville.

Appellee moved for summary judgment after issue was joined, attaching to its motion (among other attachments) a certified copy of its policy of insurance. It is clear from the oral reasons given by the trial judge that he relied upon definitions of “automobile” and “mobile equipment” which he assumed were contained in the certified copy of the policy of insurance, but which were in fact not contained in the certified copy of the policy of insurance as attached. The policy’s definitions of these terms are crucial to our decision, and, as it is apparent that the complete policy was not attached to the motion for summary judgment, we reverse the judgment granting summary judgment and remand the case to the trial court for further proceedings. As we assume that the complete policy was not attached through inadvertence of counsel for appellee, we assess all costs of this appeal to appellee.

REVERSED AND REMANDED.

ON REHEARING

In our original opinion, which we hereby vacate, we reversed and remanded for the reason that we could not find in the record pertinent portions of the insurance policy issued by National Union Fire Insurance Company of Pittsburg, Pennsylvania (hereinafter called National Union). We have since located the complete insurance policy.

This is an action for damages arising from the death of Vincent L. Sherville. Plaintiffs are (1) Joyce Sherville, widow of Vincent Sherville, in her individual capacity, in her capacity as administratrix of the succession of her late husband, and as natural tutrix of her minor child, Christopher Sherville, and (2) Christine Sherville, a major, daughter of Vincent Sherville. Named defendant is National Union Fire Insurance Company of Pittsburg, Pennsylvania, insurer of Bradley Sherville, d/b/a Sherville’s Scrap and Salvage, under a manufacturer’s and contractor’s liability policy.

National Union moved for summary judgment after issue was joined, attaching to its motion a deposition of Bradley Sher-ville and a certified copy of the policy of insurance issued by National Union. The trial court granted summary judgment, although it is clear from its oral reasons that it considered the issue to be very close. We reverse.

It appears from plaintiffs’ petition and the deposition of Bradley Sherville that on or about March 26, 1977, Bradley Sher-ville was loading aluminum beams or duct work at Franklin High School. With him were his father, Vincent Sherville, who was waiting to see a school official, and his brother, Christopher Sherville, who was there to help. A 1963 GMC winch truck owned by Bradley Sherville was used to lift the beams. About fifteen or twenty feet away was a float also owned by Bradley Sherville on which the beams were to be loaded. To load the first beam, Bradley Sherville backed the winch truck up to a fence, the gin poles extending above the top of the fence, and raised the beam. He then drove the winch truck over to the float, loaded the beam, and drove back to the fence, the gin poles of the winch truck again extending over the top of the fence. It was in loading the second beam that the accident occurred. The hook on the winch was attached (plaintiffs allege insecurely) to a hole in the beam, and the beam was lifted. Immediately after the beam was lifted as high as it would go, the beam fell, striking Vincent Sherville, who for some unknown reason had walked under the beam, on the head, knocking him to the ground. Some five or ten minutes later, Vincent Sherville died.

National Union contends that its policy does not afford coverage to the type of risk presented by reason of an exclusion in its policy, but rather coverage is afforded under an automobile liability policy issued by another insurance company. Plaintiffs contend that the exclusion in the National Union policy does not apply to the facts of the present case for several reasons, only one of which need be considered to arrive at the conclusion we have reached here.

National Union’s policy contains the following exclusion:

“This insurance does not apply:
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or
(2) any other automobile or aircraft operated by any person in the course of his employment by any insured .

Assuming that Bradley Sherville is liable for his father’s death, the question arises as to whether or not National Union’s policy affords liability coverage, in view of the quoted exclusion. This turns on whether or not the bodily injury arose out of the “ownership, maintenance, operation, use, loading or unloading of . (an) automobile.

A situation rather similar to the facts of the present case was presented to the Louisiana Supreme Court (on consideration after granting of certiorari) in LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978). In that case, a sheriff’s car, operated by a deputy sheriff, failed to block an intersection for a funeral procession. A speeding motorist traveling at right angles to the funeral procession struck the hearse killing a passenger. The sheriff’s office had a professional liability policy and an automobile liability policy.

The professional liability policy provided that it did not apply “. . .to bodily injury arising out of ownership, operation, or use, loading or unloading, of land motor vehicles.”

The Louisiana Supreme Court stated:

“An exclusion clause in a liability policy is strictly construed against the insurer and in favor of coverage, if more than one interpretation is possible. Creole Explorations, Inc. v. Underwriter’s at Lloyds of London, 245 La. 927, 161 So.2d 768 (1964); Stanley v. Cryer Drilling Co., 213 La. 980, 36 So.2d 9 (1948); Couch on Insurance 2d, Section 44:414 (1964). Consonant with this principle, the decisions we could find hold that, where the automobile use exclusion clause is sought to be applied so as to avoid coverage for injuries otherwise covered by a general liability policy, the exclusion clause does not apply where the insured’s act is a result of negligence independent of, even though concurring with, his use of an automobile. State Farm Mutual Auto-moble Insurance Co. v. Patridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973); United States Fidelity & Guaranty Co. v. Breslin, 243 Ky. 734, 49 S.W.2d 1011 (1932); Assurance Company of North America, 108 Ga.App. 766, 134 S.E.2d 540 (1963); Couch, cited above, Section 44:532.
“Accordingly, the exclusion clause in Western World’s policy does not operate to exclude coverage of Deputy Smith’s negligence leading up to the collision. Although he could and should have used his police car to block the intersection and warn approaching drivers of the dangerous situation, it was not any use or abuse of his vehicle itself that led to his liability. Rather, it was his failure to supersede the automatic traffic signal and warn traffic approaching on the right-of-way highway that a funeral procession was going to pass through it, a function of his duties as law enforcement officer.
“The basis of Deputy Smith’s liability is his negligent failure to perform this law enforcement duty, the risk specifically insured by Western World’s policy. The circumstance that the deputy was to use his automobile in the performance of this duty was incidental to the breach of this law enforcement duty. His liability is not based upon the negligent use of his vehicle, but rather upon his negligence in failing to secure the intersection so as to alert approaching traffic of the danger involved. The damages to the injured victim arose out of the deputy’s breach of his law enforcement duties, not from the deputy’s use of his automobile.” (footnote omitted) (365 So.2d 471, 479)

Here, the insured’s (Bradley Sherville) act was a result of negligence (improperly attaching the cable to the beam, failing to warn Vincent Sherville or to see him) independent of, and not even concurring with, his use of the winch truck as a motor vehicle. It was not the use or abuse of the winch truck as a vehicle, but rather, the use of the winch truck as a winch, that led to Bradley Sherville’s possible liability. Bradley Sherville’s possible liability is based not upon the negligent use of his winch truck as a vehicle, but rather upon his negligence in failing properly to secure the cable and hook to the beam.

The Court in LeJeune went on to state that the professional liability policy and the automobile policy were supplemental to one another, and that, as it had found coverage under one, it would not find coverage under the other.

It then becomes pertinent to inquire whether in the present case coverage was afforded under Bradley Sherville’s automobile liability policy rather than under his manufacturer’s and contractor’s liability policy. Although the facts in Baudin v. Traders & Gen. Ins. Co., 201 So.2d 379 (La.App.1967), writ refused, 251 La. 224, 203 So.2d 557 (1967), differ entirely from the facts presented in the present case, the reasoning applies. In that case, a driver of a parked automobile negligently instructed a three year old child of his friend to go home, making it necessary for the child to cross the street. The child darted from behind the parked automobile into the path of a moving automobile, and was seriously injured. Named as defendants were the owner of the moving automobile and the liability insurer of the parked automobile. The liability insurer of the parked automobile moved for summary judgment on its behalf, on the basis of the following language in its policy:

“Part I-Liability
“Coverage A-Bodily Injury; * * * To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. Bodily injury, * * * arising out of the ownership, maintenance or use of the owned automobile. * * * ”
(201 So.2d 379, 381)

Summary judgment was granted and the case was appealed. The Third Circuit Court of Appeal thoroughly discussed the jurisprudence of Louisiana and other states on the meaning of the phrase “arising out of” the use of an automobile in an automobile liability policy, reversed the judgment granting summary judgment, and remanded the case. It summarized the tests that have been applied in the cases that were cited in its decision as follows:

“(1) The dangerous situation causing injury must have its source in the use of the automobile; (2) The chain of events resulting in the accident must originate in the use of the automobile and be unbroken by the intervention of any event which has no direct or substantial relation to the use of the vehicle; (3) The accident must be a natural and reasonable incident or consequence of the use of the vehicle for the purposes contemplated by the policy, although not necessarily foreseen or expected; (4) The accident must be one which can be ‘immediately identified’ with the use of the automobile as contemplated by the parties to the policy; (5) The accident must be of a type reasonably associated with the use 'of the automobile as contemplated by the contracting parties; (6) The accident must be one which would not hav.e happened ‘but for’ the use of the automobile.”
(201 So.2d 379, 384, 385)

In the present case, if we apply the tests set forth in Baudin, the injury and subsequent death of Vincent Sherville did not “arise out of” the use of the automobile (the winch truck) because under test (2) although the chain of events resulting in the accident could be said to have originated in the use of the winch truck as a vehicle, the chain of events was broken by the use of the winch truck as a winch, the improper attachment of the winch cable and hook to the beam, and the failure to see or warn Vincent Sherville while operating the winch. If the manufacturer’s and contractor’s liability policy and the automobile liability policy are supplemental, then the exclusion under the National Union policy does not apply, as the accident did not “arise out of” the use of an automobile. Hence, National Union’s policy affords coverage.

A federal case, Sparkman v. Highway Ins. Co., 266 F.Supp. 197 (D.C.1967), is also pertinent. In that case, a winch truck was dispatched to a well site, and while the winch was in operation on the day on which the truck arrived on location, plaintiff, who was directing the driver’s operations, was injured. The truck was immobile while the winch was being used. Plaintiff sued the owner of the winch truck and his general insurer. The general liability policy contained the following language:

“This policy does not apply: * * * (c) * * * to the ownership, maintenance, operation, use, loading or unloading of * * * (2) automobiles if the accident occurs away from such premises (rented to, owned or controlled by the insured) or the ways immediately adjoining * * * ”
“(b) Automobile. The word ‘automobile’ means a land motor vehicle, trailer or semitrailer, provided: * * *
(2) the following described equipment shall be deemed an automobile while towed by or carried on an automobile as above defined solely for purposes of transportation while being operated solely for locomotion, but not otherwise: if of the non-crawler type, any power crane * * *

The court held that the exclusion “. . . use of automobile . . . ” was ambiguous, and noted that three experts called to testify by plaintiff had stated that the insurance industry itself was uncertain as to the meaning of the exclusion. Although we do not have the advantage of those experts’ testimony, we believe it is relevant that a federal court, insurance experts, and the Louisiana Supreme Court all consider the “. . . use of automobile . . .” exclusion ambiguous. We agree with that conclusion. As we stated in the language quoted from LeJeune, supra, an ambiguity in an exclusion in a liability policy must be resolved against the insurer. Hence, we hold that under the facts as presented under the motion for summary judgment, the exclusionary clause in the National Union’s policy does not apply.

We reverse the judgment of the trial court granting summary judgment, and remand the case for further proceedings in accordance with the views expressed herein. Costs of this appeal are assessed to appellee.

REVERSED AND REMANDED.

      . It is interesting, but not determinative, to note that the plaintiffs in the present suit entered into a settlement with Insured Lloyd’s Insurance Company, Fort Worth, Texas, the automobile liability insurer, for the policy limits of $10,000.00.