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

text:
    STATE of Louisiana v. Sam BOOKER, Jr.
    No. 65384.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    On Rehearing July 7, 1980.

      Lemmon, J., concurred and assigned reasons.
    Dixon, C. J., concurred for reasons assigned by Lemmon, J.
    Marcüs, J., dissented and assigned reasons.
    Blanche, J., concurred in part and dissented in part for reasons assigned.
    Watson, J., dissented and assigned reasons.

      Wellborn Jack, Jr., Jack & Jack, Shreveport; Claude R. Sledge, Mansfield, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., Herman L. Lawson, Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant was charged by bill of information with attempted first degree murder in violation of R.S. 14:27. The jury, by a vote of 10 to 2, found defendant guilty of attempted second degree murder. R.S. 14:27. Defendant was sentenced to 36 years at hard labor.

At the end of the trial, defense counsel moved for a new trial on the basis that no evidence of one of the essential elements of second degree murder was presented to the jury. Defense counsel also objected to the sentence by alleging that the trial judge failed to follow the sentencing guidelines of C.Cr.P. art. 894.1 and that a 36-year sentence for this particular defendant is excessive. The trial judge denied both motions and defendant appeals.

The shooting for which defendant was convicted occurred in a barroom which defendant was managing on the night of the crime. On January 20, 1979, the victim, Willie Brady Hambrick, and defendant’s stepdaughter, Jeanette August, got into an altercation which resulted in Hambrick trying to hit Miss August after she threw catsup on him. The defendant, with gun in hand, broke up the fight and told Hambrick to leave. Hambrick began heading for the door, but when he neared the door, the defendant fired two shots, the second of which hit Hambrick in the side. At the trial, defendant claimed self-defense, testifying that he fired the gun when he saw the victim reaching into his pocket for what the defendant thought was a gun.

Based on these facts, the jury convicted the defendant of attempted second degree murder. Under the applicable law, second degree murder was defined as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill.

Defense counsel argued that the conviction should be reversed because no evidence was presented at trial of an essential element of second degree murder, that is, that defendant was engaged in the perpetration or attempted perpetration of any of the felonies enumerated in the definition of second degree murder.

In C.Cr.P. art. 814, our legislature has expressly provided the responsive verdicts for certain well-known crimes. That provision designates attempted second degree murder as a responsive verdict to a charge of attempted first degree murder. C.Cr.P. art. 814. The state relies upon established jurisprudence that in Louisiana, if there is sufficient evidence in the record to support a conviction for a greater offense (which includes the one for which the defendant is convicted), the evidence necessarily and automatically will support a conviction of the lesser offense which has been made responsive by legislative action. State v. Cooley, 260 La. 768, 257 So.2d 400 (1972); State v. Peterson, 290 So.2d 307 (La.1974); State v. Madison, 319 So.2d 912 (La.1975); State v. Hoffman, 345 So.2d 1 (La.1977); State v. Qualls, 353 So.2d 978 (La.1978).

We note that in these cases, the responsive verdicts were lesser and included offenses in that the essential elements of the lesser crimes found by verdict were essential elements of the greater crime charged. This case presents a unique problem because the redefinition of second degree murder in 1978 resulted in an essential element of second degree murder, the commission of an enumerated felony not being an essential element of the crime of first degree murder.

Prior to the 1978 revision of the second degree murder statute, a conviction of first degree murder required proof of the specific intent to kill or inflict great bodily harm. The jury could impose the death penalty upon proof of an aggravating circumstance, one of which was the commission of one of several enumerated felonies. A second degree murder conviction required proof of either (1) the specific intent to kill or inflict great bodily harm or (2) the perpetration of one of several felonies. Thus, the definition of first degree murder included all the essential elements (killing with specific intent) of one type of second degree murder.

In 1978, the legislature redefined second degree murder to be the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of one of several enumerated felonies, even though the offender has no specific intent to kill or to inflict great bodily harm, making felony murder the only type of second degree murder. The definition of first degree murder remained killing with specific intent. Second degree murder also remained a statutory responsive verdict to a charge of first degree murder. See C.Cr.P. art. 814. Thus, under the 1978 scheme, an essential element of second degree murder, the perpetration or attempted perpetration of an enumerated felony, is not included within the definition of first degree murder. As a consequence, the evidence required to prove first degree murder no longer proved second degree murder.

We have recognized that, notwithstanding that the legislature has provided statutorily for a responsive verdict, this Court cannot approve such a provision if it offends some constitutional principle. State v. Peterson, supra. In Peterson, we tested the rational basis for the legislature’s determination that manslaughter was a responsive verdict to first degree murder by analyzing whether the greater offense necessarily includes the elements of the lesser offense. We held manslaughter to be a proper responsive verdict to first degree murder because the heat of passion provision in the definition of manslaughter was found to be in the nature of a defense mitigating the killer’s culpability and not an element of the crime of manslaughter. Indeed, we have recognized that whether the elements of the lesser offense are included in the definition of the greater offense is the appropriate test for determining permissible responsive verdicts for crimes not provided for in C.Cr.P. art. 814. State v. McCoy, 337 So.2d 192 (La.1976); State v. Stewart, 292 So.2d 677 (La.1974).

An application of the Peterson analysis to the applicable definitions of first and second degree murder can only result in our concluding that no rational basis exists for making second degree murder responsive to first degree murder. A jury can acquit a defendant of first degree murder, thus finding no specific intent to kill, and find him guilty of second degree murder, even though no evidence exists to support a conclusion that the defendant was engaged in the perpetration or attempted perpetration of one of the felonies enumerated in the 1978 definition of second degree murder, an essential element of the crime. This is exactly what occurred in the instant case, and prompts our holding that due process of law requires that responsive verdicts provided for in statutory enactments by the legislature not invite the jurors to arbitrarily choose a verdict which clearly is not supported by the evidence and which is not a lesser included offense of the greater offense charged. La.Const. art. 1, § 2; U.S. Const. Amend. 14. Accordingly, the defendant’s conviction is reversed.

In so holding, we do not overturn case law holding that if there is some evidence in the record to support a conviction for a greater offense, the evidence will support a conviction of the lesser offense which has been made responsive by the legislature, see e. g. State v. Cooley, supra, so long as the elements of the lesser offense are included in the greater offense. A defendant has not been prejudiced if the evidence shows guilt of a greater offense because by proving the greater offense, the state has necessarily proved the elements of a lesser and included offense. In such a situation, the defendant cannot be heard to complain that he committed a crime more serious than the one of which he was convicted. State v. Peterson, supra; State v. Madison, supra.

For the above reasons, the conviction and sentence is reversed and the case is remanded to the district court with orders to dismiss the prosecution against the defendant.

REVERSED.

DENNIS, J., concurs and will assign reasons.

DIXON, J., dissents with reasons.

MARCUS and WATSON, JJ., dissent for reasons assigned by DIXON, J.

DIXON, Justice

(dissenting).

I respectfully dissent.

If the verdict is guilty of a crime made responsive by the legislature to the offense charged in the bill, the test is:

“If there is sufficient evidence in the record to support a conviction for a greater offense (which includes the one for which the defendant is convicted), the evidence necessarily and automatically will support a conviction of the lesser offense which has been made responsive by legislative action.” State v. Cooley, 260 La. 768, 773, 257 So.2d 400, 402 (1972).

ON REHEARING

DENNIS, Justice.

On rehearing we conclude that (1) our original decision to reverse defendant’s conviction of attempted second degree murder was correct for the reasons hereinafter assigned; and (2) the ease should be remanded for further proceedings consistent with this opinion.

On original hearing we reversed defendant’s conviction because, at the time of the offense in question, a charge of attempted first degree murder provided no rational basis for a conviction of attempted second degree murder. This holding was correct. Some of the explicatory language of our initial opinion departed from this rationale, however, and may incorrectly imply that our decision actually was based on the state’s failure to present sufficient evidence to prove that the homicide occurred when the offender was engaged in the perpetration of a separate felony. Therefore, in order to avoid misinterpretation, we explain anew the controlling principles of our decision.

The problem of this case is that at the time of the offense in question first degree murder was defined as a homicide with specific intent to kill or to greatly harm, whereas second degree murder was defined exclusively as a killing when the offender is engaged in the perpetration of a major felony, even though he has no intent to kill or to greatly harm. The defendant in this case was charged with attempted first degree murder but convicted of attempted second degree murder. Thus, the defendant was convicted of criminal conduct which actually was not included within a charge of attempted first degree murder, viz., attempting to kill a person when the offender is engaged in the perpetration of a major felony. See La.Acts 1976, No. 657; La.Acts 1978, No. 796.

No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in all courts, state or federal. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). It is a violation of due process either to send an accused to prison following conviction of a charge on which he was never tried or to convict him upon a charge that was never made. DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1936); Cole v. Arkansas, supra; Re Oliver, supra; cf. State v. Duhon, 142 La. 919, 77 So. 791 (1918). Accordingly, it was a violation of due process to convict the defendant upon a charge of attempted second degree murder, a charge of which he was not given adequate notice and against which he had no chance to defend.

A lesser offense is included in the charge of the greater offense if all of the elements of the lesser crime are included in the definition of the greater offense. State v. McCoy, 337 So.2d 192 (La.1976); State v. Stewart, 292 So.2d 677 (La.1974); State v. Poe, 214 La. 606, 38 So.2d 359 (1948); State v. Roberts, 213 La. 559, 35 So.2d 216 (1948); cf. La.R.S. 14:5. Since the definition of the crime of attempted first degree murder did not include the element that the offender must be engaged in perpetration of a felony at the time of the offense, an essential element of second degree murder in this case, it is plain from the definitions of the two crimes that all elements of the lesser offense were not necessarily included in the greater offense. See La.Acts 1976, No. 657; La.Acts 1978, No. 796. Two simple illustrations suffice to demonstrate: (1) In attempted first degree murder, commission of a separate felony is not essential, whereas the offender’s contemporaneous perpetration of one of the statutorily prescribed felonies was a necessary ingredient of attempted second degree murder at the time of the homicide herein, and (2) If A intentionally shot at B, missing him, he was amenable to a charge of attempted first degree murder, but he was not amenable to a charge of attempted second degree murder unless he was perpetrating one of the statutorily prescribed felonies at the time of the shooting.

When the legislature’s 1978 amendment to the definition of second degree murder partially excluded that offense from a charge of first degree murder, corresponding legislation was required to remove the lesser crime from the list of responsive verdicts provided by La.C.Cr.P. art. 814 when the indictment charged first degree murder. The legislature’s failure to repair Louisiana Code of Criminal Procedure Article 814 in this instance, however, did not make a charge of first degree murder include or constitute notice of a charge of second degree murder. The main function of La.C.Cr.P. art. 814 is to resolve which verdicts are responsive for the most common crimes by definite restrictive lists. See La.C.Cr.P. art. 814 Official Revision Comments (a)-(c). Substantive definitions of crimes are not provided for in La.C.Cr.P. art. 814 and the criteria for determining whether elements of lesser crimes are totally included within greater offenses are not codified in the Code of Criminal Procedure. See La.C.Cr.P. art. 814, Official Revision Comment (c). Although the legislature’s classification of an offense as a responsive verdict is entitled to great weight in deciding whether it is included in the charged offense, see State v. Hoffman, 345 So.2d 1 (La.1977); State v. Peterson, 290 So.2d 307 (La.1974); State v. Edwards, 287 So.2d 518 (La.1973), constitutionally the substantive elements of the crime definitions must govern in determining whether due process notice of lesser charges is included in an indictment. See In the Interest of Batiste, 367 So.2d 784 (La.1979).

Since we have concluded that the defendant was denied a safeguard guaranteed by due process of law, his conviction and sentence are reversed and the case is remanded to the district court for proceedings not inconsistent with this opinion. Because this reversal does not result from evidentiary insufficiency or constitute a decision that the state failed to prove its case, the double jeopardy clause does not bar further prosecution of defendant in connection with the alleged criminal activity. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The jury’s verdict herein, however, operates as an acquittal and bar of a second prosecution of defendant on the charge of attempted first degree murder. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 221 (1957).

REVERSED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

DIXON, C. J., concurs for reasons assigned by LEMMON, J.

BLANCHE, J., concurring in part and dissenting in part for reasons assigned.

MARCUS and WATSON, JJ., dissent and assign reasons.

LEMMON, Justice

(concurring).

Although the majority opinion correctly concludes that one element of the lesser offense is not included in the definition of the greater offense, the primary reason that defendant’s conviction of attempted second degree murder must be set aside is that it is impossible for one to attempt the conduct constituting the offense of second degree murder under the statutes existing at the time.

In January, 1979 second degree murder was defined as the killing of a human being when the offender is engaged in the perpetration of certain enumerated offenses (not applicable here), even though the offender has no intent to kill or to inflict great bodily harm. Attempt requires that the offender act with a specific intent. R.S. 14:27. In a logical analysis one cannot specifically intend (attempt) to do something that one does not intend to do. One therefore cannot attempt to kill a human being in the course of perpetrating another crime without intending to kill the victim. In other words there can be no such crime as attempted felony murder. See State v. Adams, 28 So.2d 269 (La.1947); Reporter’s Comment, R.S. 14:27.

The trial court erred in instructing the jury that they could return a verdict of attempted second degree murder (although the true error was caused by legislative retention of that crime as a responsive verdict to attempted first degree murder). See State v. White, 315 So.2d 301 (La.1975); State v. Comeaux, 277 So.2d 647 (La.1973); C.Cr.P. art. 813. The error requires reversal. However, since the reversal was not based on insufficiency of evidence and since the jury may have concluded on the evidence (but for erroneous instruction) that defendant was guilty of attempted manslaughter or some other lesser and included offense, defendant may be retried for other lesser and included offenses to the crime of attempted first degree murder.

BLANCHE, Justice

(concurring in part, dissenting in part).

I concur in the majority opinion’s reversal of defendant’s conviction, but dissent from that part of the opinion remanding the case to the district court for further proceedings for reasons previously assigned.

I further disagree with that part of the opinion which finds that defendant had no notice of the crime of which he had been convicted, because as a matter of law, it was a responsive verdict to the crime of which he had been charged.

MARCUS, Justice

(dissenting).

I would not reverse the conviction and sentence for attempted second degree murder because it is a responsive verdict to the crime charged (attempted first degree murder). Accordingly, I respectfully dissent.

WATSON, Justice,

dissenting.

I respectfully dissent for the reasons assigned by Blanche, J.

      .La.Acts 1976, No. 657 amending La.R.S. 14:30. First degree murder was defined as “the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm.” In 1979, the definition of first degree murder was changed to:
      § 30. First degree murder
      First degree murder is the killing of a human being:
      (1) when the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery;
      (2) when the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties;
      (3) when the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or
      (4) when the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing.
      For the purposes of Paragraph (2) herein, the term peace officer is defined to include any constable, marshal, deputy marshal, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, attorney general, assistant attorney general, attorney general’s investigator, district attorney, assistant district attorney, or district attorney’s investigator.
      Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury, (approved June 29, 1979)

      . La.Acts 1976, No. 694 adding La.C.Cr.P. art. 905.3. The procedure is the same today.

      . In La.Acts 1977, No. 121 amending La.R.S. 14:30.1, second degree murder was defined as:
      “A. The killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill; or
      B. The killing of a human being when the offender has a specific intent to kill, under circumstances that would be first degree murder under Article 30, but the killing is accomplished without any of the aggravating circumstances listed in Article 905.4 of the Louisiana Code of Criminal Procedure.”

      . La.Acts 1978, No. 796 amending La.R.S. 14:30.1. Second degree murder was redefined to be:
      "... the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.”
      In 1979 the definition of second degree murder was changed to:
      §-30.1. Second degree murder
      Second degree murder is the killing of a human being:
      (1) when the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, (approved June 29, 1979)

      . For similar analysis and conclusion, see Baker, Jr., J., “work of Appellate Courts — 1975-1976”, 37 La.L.R. 562 (1977).


source: Caselaw Access Project

author:
BLANCHE, Justice.
     MARCUS, Justice

license: Public Domain

text:
    LOUISIANA HOTEL-MOTEL ASSOCIATION, INC., Louisiana Restaurant Association, Inc., and Baton Rouge Chapter of the Louisiana Restaurant Association v. PARISH OF EAST BATON ROUGE and the City of Baton Rouge through members of the City-Parish Council and W. W. Dumas, Mayor-President.
    No. 67070.
    Supreme Court of Louisiana.
    June 23, 1980.

      Walter G. Monsour, Jr., Parish Atty., Larry S. Bankston, Asst. Parish Atty., William J. Guste, Jr., Atty. Gen., for defendants-appellants.
    Edward F. Glusman, Glusman, Moore & Wilkinson, Baton Rouge, for plaintiffs-ap-pellees.
   BLANCHE, Justice.

Plaintiffs are the Louisiana Restaurant Association, Inc., the Baton Rouge Hotel-Motel Association and the Baton Rouge Chapter of the Louisiana Restaurant Association.

Plaintiffs herein filed suit seeking (1) a declaratory judgment that a resolution of the City of Baton Rouge and of the Parish of East Baton Rouge be declared “arbitrary, unreasonable, discriminatory and vio-lative of the Constitution^] of the United States and the State of Louisiana and the statutes thereof;” and (2) “a preliminary injunction directed to the Defendants restraining, enjoining and prohibiting Defendants, [their] agents, employees, and all other persons, acting or claiming to act in their behalf, from enforcing the provisions of City Resolution # 9542; and Parish Resolution # 15949.”

The Resolutions in question stated:

“DECLARING A MORATORIUM ON THE ISSUANCE OF LICENSES TO SELL OR DISPENSE ALCOHOLIC BEVERAGES FOR A PERIOD OF SIX (6) MONTHS SUBJECT TO CERTAIN EXCEPTIONS.
“BE IT RESOLVED by the Parish Council of the Parish of East Baton Rouge and the City Council of the City of Baton Rouge that these Councils declare a moratorium on the issuance of licenses to sell or dispense alcoholic beverages for a period of six (6) months, effective the date of adoption of this resolution, such moratorium being subject to the following exceptions:
“1. Those individuals taking over existing businesses holding licenses to sell or dispense alcoholic beverages as of the date of adoption of this resolution; and
“2. Those individuals with a letter of intent to obtain such a license filed with the Treasurer’s Office as of 5:00 o’clock P.M. on the date of adoption of this resolution.”

The Parish and the City filed peremptory exceptions claiming (1) plaintiffs had no justiciable interest in prosecuting the action “for the reason that plaintiffs are not individuals, partnerships, or corporations which have applied for a license to sell or dispense alcoholic beverages in the Parish of East Baton Rouge” and (2) that plaintiffs’ petition “discloses no cause or right of action against [defendants] for the reason that plaintiffs are not affected by the ordinances which they wish to declare unconstitutional.”

The trial court ruled in favor of plaintiffs. In his reasons for judgment the district judge overruled defendants’ exception of no right of action saying:

“The Baton Rouge Chapter of the Louisiana Restaurant Association is alleged to be a non-profit corporation. While it could not apply for a liquor permit, on behalf of its membership it is vitally interested in the development of the hospitality industry in this community. Without question, the availability of a liquor permit is of significant interest to its membership. In Louisiana Independent Auto Dealers Association [v. State], 295 So.2d 796 (La.1974), the Supreme Court specifically held that an unincorporated association of non-franchised used automobile dealers and two association members had standing to bring an action to test the constitutionality of provisions of Consumer Credit Act. Numerous other cases have sanctioned the standing of associations and representative groups to question the constitutionality of statutes where a close relationship exists between the association and its members and the issues clearly affect its individual members. N. A. A. C. P. v. Burton [Button], [371 U.S. 415] 83 S.Ct. 328 [9 L.Ed.2d 405] (1963); La. Wholesale Distributors Association v. Rosenweig, 214 La. 1, 36 So.2d 403 (1948). The Court is satisfied that the petitioner has an interest and standing in this court to litigate the suit. Therefore, the exception of no right of action is overruled.”

On the merits, the judge held the resolutions to be “unconstitutional as violating the equal protection laws of the United States and Louisiana Constitutions.” The court then made the rule absolute and issued a temporary injunction to prevent enforcement of the resolutions. The suspen-sive appeal to this Court followed.

On appeal, defendants again argue that plaintiffs are without any justiciable interest and so have no right of action and no cause of action.

Those who assert the “right” must have both the capacity to assert it (must be among those who have an interest to assert the right) and a cause which they are able to assert (must have a remedy afforded by law). In our opinion, plaintiffs here suffer on both counts. It is questionable whether the plaintiffs, all associations, have either the capacity or the interest to bring the action. Plaintiffs make no allegation that they ever applied for a license or intended to apply for one so as to make the showing that any future or present harm was applicable to themselves. Nor has any allegation been made that any of their members have applied for a license and been refused. It would appear that, as their members already possess licenses, they could not be harmed by the resolution. Taxing our own imagination, it may be that plaintiffs could have alleged and shown that some businesses or persons sought membership in their organizations or would have applied except for the moratorium, but again, no such allegations were made.

We are of the opinion that, in all respects, plaintiffs have failed to show that there exists, either on their part or the part of their members, any real or actual interest to attack the ordinances or that the enforcement of the ordinances would result in an injury to themselves or any of their members.

Plaintiffs are all associations; one is incorporated and the other two have an unknown status. Whether incorporated or unincorporated, the right that any association has to assert a cause of action before a court in this state is limited to the assertion of a right which belongs to that association. C.C.P. arts. 681, 689, 690.

We note that C.C.P. art. 681 is analogous to, and partly derived from, rule 17(a) of Federal Rules of Civil Procedure which establishes the requirement that one who asserts a cause must have standing to do so. Thus, Federal jurisprudence is of assistance to us in determining what constitutes an actual interest assertable before our courts.

An analysis dealing with the requirement that a plaintiff show that it has an interest in the suit, because of some actually existing or probable future harm to itself, is that made by the U.S. Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). In Hunt, the court indicated three criteria (which it found to be present) which would have to be present in any suit that an association would bring in behalf of its members. Those criteria are:

“(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt, supra, 97 S.Ct. at 2441.

In Hunt, the court noted that the Association was a state-created one charged by statute with the “duty of promoting and protecting the state’s apple industry”, that the Association had shown clear, direct, economic injury to the members thereof, and that no individualized proof would be necessary in order to have the courts grant the relief sought. In the case now before us, the plaintiffs have not shown that the members of their organizations could bring a suit; they have not shown any harm (present or probable for the future) which would occur to the members. There has additionally been no showing of the purposes for which these organizations were formed. Nothing in the record before us would indicate that the claims being made would relate to a purpose for which any of the organizations exist. Plaintiffs have also made no showing or claim that the relief being sought does not require the participation of the individual members.

Plaintiffs have argued that the Louisiana jurisprudence, particularly Louisiana Independent Auto Dealers Association v. State, 295 So.2d 796 (La.1974) and Louisiana Wholesale Distributors Association v. Rosenweig, 214 La. 1, 36 So.2d 403 (1948) [see also 212 La. 1015, 34 So.2d 58 (1947)] support their claim. We note that the case involving the Auto Dealers not only included individual dealers among the plaintiffs, but also demonstrated actual, substantial economic injury to the dealers. In the Wholesale Distributors case, there was no issue made of the right of the Association to bring suit, so there was no ruling by the court on this point. Additionally, the first time it was before this Court, there was an allegation by plaintiff that it had, itself, suffered damage. The posture and the claims of the reported Louisiana jurisprudence are not apposite to the case presently at bar. In this case, plaintiffs are in a position more analogous to that of the plaintiff in Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943), who failed to show that he had suffered or would suffer any harm from the application of the state statute of which he complained.

In conclusion we find that plaintiffs have shown neither standing to prosecute nor an injury which might have been redressed, and the peremptory exception should have been sustained. C.C.P. art. 934 directs that on the sustaining of a peremptory exception, plaintiff be given another opportunity to state a right and/or cause of action. Accordingly, we remand the case to the district court and grant plaintiffs 15 days from the effective date of this decision to amend their petition. Upon failure to comply with the Court’s order in the above stated time, plaintiffs’ suit will be dismissed.

REVERSED AND REMANDED WITH ORDER.

DIXON, C. J., specially concurs.

MARCUS, Justice

(dissenting).

La.Const. art. 5, § 5(D) provides that a case shall be appealable to this court if “a law or ordinance has been declared unconstitutional.” Here, the trial judge held a resolution of the City of Baton Rouge and of the Parish of East Baton Rouge unconstitutional. Hence, we do not have appellate jurisdiction in this case. Accordingly, I respectfully dissent.

       Chief Judge Frederick S. Ellis participated in this decision as Associate Justice Ad Hoc.

      . The Louisiana Hotel-Motel Association, Inc. was originally a plaintiff but withdrew prior to any decision in the district court.

      . Note that the resolutions are identical; the different numbers are the result of the form of govemment applicable within East Baton Rouge Parish.

      . The appeal is one directly to the Supreme Court under the provisions of La.Const. (1974) art. 5, § 5(D).

      . “Art. 681. Real and actual interest required. Except as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.”
      “Art. 689. Unincorporated association. An unincorporated association has the procedural capacity to sue to enforce its rights in its own name, and appears through and is represented by its president or other authorized officer.”
      “Art. 690. Domestic corporation or insurer. Except as otherwise provided in Articles 692 and 693, a domestic corporation, and a domestic insurer, has the procedural capacity to sue to enforce its rights in the corporate name.”

      . Rule 17.
      “(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Edward Charles COLLINS.
    No. 66798.
    Supreme Court of Louisiana.
    July 2, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan S. Kemp, III, Dist. Atty., Abbott J. Reeves, William M. Quin, Asst. Dist. Attys., for plaintiff-appellee.
    William L. Brooks, Amite, for defendant-appellant.
   PER CURIAM.

Affirmed.

CALOGERO, J., dissents.


text:
    STATE of Louisiana v. Ervin Lee THIBODEAUX.
    No. 66826.
    Supreme Court of Louisiana.
    July 7, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Ralph K. Lee, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    John W. Porterfield, Jeanerette, for defendant-appellant.
   PER CURIAM.

Affirmed.

Defendant’s sixth challenge was directed toward an alternate juror; he had not exhausted his peremptory challenges before the jury was selected.


text:
    STATE of Louisiana v. Johnnie T. WILSON.
    No. 67075.
    Supreme Court of Louisiana.
    July 7, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander Perez, Jr., Dist. Atty., Frank Klein, Asst. Dist. Atty., for plaintiff-respondent.
    Martin S. Sanders, Jr., Sanders & Cas-tete, Ltd., Winnfield, for defendant-relator.
   PER CURIAM.

Writ recalled. The record before us does not support the allegations of the defense application.


text:
    STATE of Louisiana v. Steve MARTIN.
    No. 80-K-1375.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re State of Louisiana, through the District Attorney, Leonard Knapp, Jr., applying for writs of certiorari, prohibition, and mandamus. Parish of Calcasieu. No. CR 10754-79.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. William Monroe BLACK v. SHERIFF AND DISTRICT ATTORNEY, PARISH OF ST. LANDRY.
    No. 66822.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re William Monroe Black, applying for writ of habeas corpus. Parish of St. Landry. No. SL-15675.

Denied. All detainers in St. Landry Parish have been lifted and the writ is moot.


text:
    Mary Margaret Forry BESNARD and William H. Besnard v. DEPARTMENT OF HIGHWAYS, State of Louisiana and the City of New Orleans.
    No. 67603.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Department of Highways, State of Louisiana and the City of New Orleans, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 381 So.2d 1303.

Denied.


text:
    STATE of Louisiana v. Norbert BLAKE.
    No. 67848.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Norbert Blake, applying for writs of certiorari, mandamus and prohibition. Parish of Caddo, 1st Judicial District Court. No. 113,229.

Denied. Adequate remedy on review in event of conviction.


text:
    STATE of Louisiana v. Mike DAVIS.
    No. 80-K-1364.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Mike Davis, applying for writ of habeas corpus. Parish of Lafayette, 15th Judicial District Court. No. 42804-F.

Denied.


text:
    STATE of Louisiana ex rel. Alfred SMITH, Jr. v. Frank BLACKBURN, Warden.
    No. 80-K-1367.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Alfred Smith, Jr. applying for writs of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Orleans. No. 257-216.

Denied.

DIXON, C. J., and CALOGERO, J., would grant an out-of-time appeal.


text:
    STATE of Louisiana v. Mark PARHAM.
    No. 80-K-1374.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re State of Louisiana, through the District Attorney Leonard Knapp, applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu. No. CR-6883-78.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Norris L. VESSELL v. STATE of Louisiana.
    No. 80-K-1382.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Norris L. Vessell, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 257-212.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Ronald Gene WIKBERT v. Ms. Donna McGHEE, Record’s Clerk Louisiana State Penitentiary and Louisiana Board of Pardons.
    No. 80-K-1383.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Ronald Gene Wikbert, applying for writ of mandamus in forma pauperis. Parish of Lafayette, 15th Judicial District Court.

Denied. Moot.


text:
    STATE of Louisiana v. Patsy B. RICHARD.
    No. 80-K-1388.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re State of Louisiana, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson Davis, 31st Judicial District Court No. 1150-80.

Denied.


text:
    Mark C. SMITH, III v. Ray TALLEY.
    No. 80-C-1391.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Ray Talley, applying for writ of review. Parish of Orleans. No. 79-17556.

Denied.


text:
    STATE of Louisiana v. Randall Keith BLOUNT.
    No. 80-K-1393.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Randall Keith Blount, applying for writs of certiorari, prohibition and mandamus. Parish of Livingston, No. 3042.

Denied.


text:
    STATE of Louisiana v. Newton “Fig” GRAHAM.
    No. 80-K-1394.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Newton “Fig” Graham, applying for writs of certiorari, prohibition and mandamus. Parish of Livingston, 21st. Judicial District Court No. 3034.

Denied.


text:
    Carlo GOVERNALE v. OMNI FOODS, INC., Omni Capital Worldwide, Ltd., Richard Friedberg and Michael Stern.
    No. 80-C-1396.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Richard Friedberg and Michael Stern, applying for writs of prohibition, cer-tiorari and mandamus. Parish of Jefferson. No. 235-358.

Denied.

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


text:
    CITY OF BAKER v. William H. DAVIS.
    No. 80-C-1397.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re William H. Davis, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13,217.

Denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Susie GARRETT.
    No. 80-K-1407.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Susie, applying for writs of certiora-ri or review. Parish of Natchitoches, 10th Judicial District Court. No. 53,595.

Denied.


text:
    STATE of Louisiana ex rel. Ervin Charles ST. AMAND v. Judge Frank J. SHEA, Criminal District Court, Section “G”, et al.
    No. 80-K-1425.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Ervin Charles St. Amand applying for writ of mandamus. Parish of Orleans. No. 268-635.

Denied.


text:
    STATE of Louisiana v. Barbara A. HENDERSON.
    No. 80-K-1428.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Barbara A. Henderson, applying for writ of certiorari. Orleans Parish. No. 276-804.

Writ denied.


text:
    RENE BRUNET, INC. v. Marion and James BIJOU.
    No. 80-C-1439.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Rene Brunet, Inc., applying for writs of certiorari, prohibition and mandamus. First City Court for the Parish of Orleans. No. 171-600.

Denied.

MARCUS, J., would grant the writ.


text:
    Franklin J. FOWLER v. LOUISIANA POWER AND LIGHT COMPANY.
    No. 80-C-1472.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Franklin J. Fowler, applying for remedial writs and stay order. Parish of Concordia. No. 18,895.

Denied.


text:
    STATE of Louisiana v. Charles H. WESTBROOK.
    No. 65132.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re State of Louisiana, through the District Attorney, Leonard Knapp, applying for rehearing of granted writ of June 6, 1980. Parish of Calcasieu. No. 11686-78.

Granted.


text:
    STATE of Louisiana ex rel. Peter WILLIAMS v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 66590.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Peter Williams applying for writ of certiorari. Parish of Orleans. No. 274-545.

Granted. Evidentiary hearing ordered on whether relator waived his right of appeal.

DIXON, C. J., is of the opinion this Court should now order an out-of-time appeal.


text:
    STATE of Louisiana ex rel. Michael Jerome FERRAND v. CLERK OF COURT, ORLEANS PARISH CRIMINAL DISTRICT COURT.
    No. 67004.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Michael Jerome Ferrand, applying for writ of mandamus. Parish of Orleans. No. 239-818.

Granted. Trial judge ordered to require former court reporter to furnish Boykin transcript.

DIXON, C. J., would order an evidentiary hearing to determine whether the plea of guilty was voluntary and knowing and whether the plea bargain was broken.


text:
    STATE of Louisiana ex rel. Gary JEFFERSON v. STATE of Louisiana.
    No. 67065.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Gary Jefferson applying for remedial writ to the Parish of Orleans. No. 264-186.

Granted. Remanded for consideration on merits. Appeal is no longer pending.


text:
    STATE of Louisiana ex rel. Nolan GASPER v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67191.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Nolan Gasper applying for writ of mandamus. Parish of Orleans. Number unknown.

Granted. Trial judge ordered to act on relator’s application filed in the district court on January 2, 1980 forthwith.


text:
    STATE of Louisiana ex rel. Clifton SEARS v. STATE of Louisiana.
    No. 67413.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Clifton Sears, applying for writs of certiorari and mandamus. Parish of Orleans. No. 250-703.

Granted. Transferred to Section B of the Criminal District Court for action.


text:
    STATE of Louisiana v. Raymond R. CACCIOPPI and Andrew Q. Sercovich.
    No. 67829.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 275-044.

Granted.


text:
    STATE of Louisiana ex rel. Thomas E. TARR v. Frank C. BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 67845.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Thomas E. Tarr applying for remedial writ. Parish of East Baton Rouge. No. 1-75-6166.

Granted. Relator is entitled to receive a copy of his Boykin transcript; the trial court is ordered to furnish it.


text:
    STATE of Louisiana ex rel. William S. LIGHT v. STATE of Louisiana.
    No. 80-K-1431.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re William S. Light, applying for remedial writs. Parish of Caddo. No. 111,-844.

Relator is granted until September 2, 1980 to apply for a rehearing. Relator is also allowed access to the necessary documents for the purpose of preparing application for rehearing.


text:
    Curtiss DOUCETTE v. GULF OIL CORPORATION et al.
    No. 67775.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Curtiss Doucette, applying for cer-tiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 203-976.

Not considered. Not timely filed.


text:
    STATE of Louisiana ex rel. Lionel FIELDS v. DISTRICT ATTORNEY, PARISH OF ORLEANS.
    No. 65220.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Lionel Fields, applying for remedial writ. Parish of Orleans. No. 254-588.

Denied.


text:
    STATE of Louisiana ex rel. Henry ANDERSON v. CRIMINAL DISTRICT COURT, SECTION “C”.
    No. 66461.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Henry Anderson, applying for writ of mandamus. Orleans Parish. No. 260-387.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Robert GRIFFIN v. Honorable Edwin LOMBARD, Clerk, Orleans Parish Criminal Judicial District Court.
    No. 66738.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Robert Griffin, applying for writ of mandamus and supervisory writs. Parish of Orleans. No. 269-740.

Denied.


text:
    STATE of Louisiana ex rel. James WILKEN v. Judge Matthew BRANIFF, Orleans Criminal Judicial District Court.
    No. 66750.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re James Wilken, applying for remedial writs. Parish of Orleans. No. 255-455.

Denied.


text:
    STATE of Louisiana ex rel. Clarence WILLIAMS v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION “B”.
    No. 66764.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Clarence Williams, applying for writ of mandamus. Parish of Orleans. No. 252-551.

Denied. The application is moot.


text:
    STATE of Louisiana ex rel. Anthony MAYO v. STATE of Louisiana, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 66949.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Anthony Mayo, applying for writ of mandamus. Parish of Orleans. No. 255-778.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Russell ALEXANDER v. SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY.
    No. 66964.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Russell Alexander, applying for writ of mandamus. Parish of St. Mary. No. 791451.

Denied.


text:
    STATE of Louisiana ex rel. Lionel BOULIEU v. Warden Ross MAGGIO, Hunt Correctional Institute.
    No. 67115.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Lionel Boulieu, applying for remedial writs. Parish of Orleans. No. 255-698.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Alfred PATTERSON, Jr. v. COURT REPORTER, SECTION “B”, CRIMINAL DISTRICT COURT.
    No. 67161.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Alfred Patterson, Jr., applying for writ of mandamus. Parish of Orleans. No. 285-251.

Denied.


text:
    STATE ex rel. Rhynie SMITH v. Hayden J. DEES, Warden, and Donovan W. Parker, Judge, 19th Judicial District Court.
    No. 67224.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Rhynie Smith applying for writ of mandamus. Parish of East Baton Rouge. No. 5-78-199.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Ernest T. DURAND v. STATE of Louisiana.
    No. 67407.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Ernest T. Durand, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 273-283.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Jerry Wayne EWINS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67460.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Jerry Wayne Ewins, applying for remedial writs. 16th Judicial District Court. Parish of St. Mary. No. 98044.

Writ denied.


text:
    STATE ex rel. Asa ALDRIGE v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION I.
    No. 67477.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Asa Aldrige, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 238-760.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Daniel ELLIS a/k/a Patrick J. Taylor v. STATE of Louisiana.
    No. 67548.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Daniel Ellis a/k/a Patrick J. Taylor, applying for writs of certiorari, review, and mandamus. Parish of St. Tammany. 22nd Judicial District Court. No. 7477213.

Denied.


text:
    Percy L. TATE v. Honorable Frank A. MARULLO, Jr., Honorable Clerk of Court, Criminal District Court.
    No. 67552.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Percy L. Tate, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 255-943.

Denied. Moot.


text:
    STATE of Louisiana ex rel. John R. TAYLOR v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67555.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re John R. Taylor, applying for habeas corpus. Parish of Webster, 26th Judicial District Court. No. 44,658.

Denied.

DIXON, C. J. would grant out-of-time appeal.


text:
    STATE of Louisiana ex rel. Oliver WASHINGTON v. Frank C. BLACKBURN et al.
    No. 67649.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Oliver Washington applying for writ of mandamus relief. Parish of Terre-bonne. No. 12,013.

Denied.


text:
    STATE of Louisiana ex rel. William J. EVANS v. Judge Lemmie O. HIGHTOWER, 4th Judicial District Court, Parish of Morehouse.
    No. 67657.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re William J. Evans applying for writ of mandamus. Parish of Morehouse. Nos. 27,113 and 27,114.

Denied.


text:
    STATE of Louisiana ex rel. Gregory SOCKWELL v. COURT REPORTER SECTION “C”, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 67661.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Gregory Sockwell applying for writ of mandamus. Parish of Orleans.

Denied. Criminal district court states that the transcript was sent to relator on February 12, 1980. A check with the mail room at Angola indicates receipt by the prison of mail for relator from Criminal District Court on February 25, 1980. It thus appears that the transcript has been received.


text:
    STATE of Louisiana v. Taylor Leon BATES, III.
    No. 67665.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Taylor Leon Bates, III, applying for remedial writs. Parish of Ouachita, 4th Judicial District Court. No. 39,369.

Denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Lloyd H. LEBAN v. STATE of Louisiana.
    No. 67683.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Lloyd H. Leban applying for writs of supervisory and remedial. Parish of Orleans. No. 260-382, Sect. G.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Tyronne J. FORREST v. STATE of Louisiana.
    No. 67750.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Tyronne J. Forrest, applying for remedial writ. Parish of Orleans, Criminal District Court, Section G. No. 269-672.

Denied.


text:
    STATE of Louisiana ex rel. Elbert STEWART v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67760.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Elbert Stewart applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. 105,812-HC.

Denied.


text:
    STATE of Louisiana ex rel. Bobby Ray YOUNG v. STATE of Louisiana.
    No. 67767.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Bobby Ray Young applying for remedial writs. Parish of Orleans. Nos. 57,803 and 99,441.

Denied.


text:
    Natchez Joseph MORICE, Jr. v. Liselotte Schroth MORICE.
    No. 67783.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Liselotte Schroth Morice, applying for rehearing of Per Curiam on application for writ of review, dated June 16, 1980, Court of Appeal, Fourth Circuit. No. 11,-287. Parish of Jefferson.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Bobby Lee SMITH v. 19TH JUDICIAL DISTRICT COURT, EAST BATON ROUGE PARISH.
    No. 67787.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Bobby Lee Smith applying for writ of mandamus. Parish of East Baton Rouge. No. 3-80-627, Section III.

Denied.


text:
    STATE of Louisiana ex rel. Floyd D. DOYLE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67788.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Floyd D. Doyle applying for remedial writ. Parish of Rapides.

Denied. Moot.


text:
    STATE of Louisiana v. Lawrence JAMES.
    No. 67790.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Lawrence James applying for remedial writ. Parish of Terrebonne. Nos. 78,-680 and 78,681.

Denied. Moot.


text:
    STATE of Louisiana v. Leroy THIBODEAUX.
    No. 67815.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Leroy Thibodeaux, applying for writs of certiorari, mandamus and prohibition. Parish of Orleans, Criminal District Court, Section B. No. 257-169.

Granted. Ruling of trial court is reversed. R.S. 13:1336 does not deprive the Orleans Criminal District Court of jurisdiction to act pursuant to C.Cr.P. Art. 648 as amended.


text:
    STATE of Louisiana ex rel. Earl GROS v. 21ST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON.
    No. 67791.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Earl Gros applying for writ of mandamus. Parish of Livingston.

Writ denied. Hearing has been set for September 9th, 1980 in district court.


text:
    Succession of Laura McCloskey CLEMENT.
    No. 67686.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Laura McCloskey Clement, applying for reconsideration of denied writ, of June 13, 1980. Parish of Orleans, Civil District Court. No. 78-5065.

Not considered, La.Sup.Ct. Rule 9 § 6.


text:
    STATE of Louisiana v. Henry F. DAVIS.
    No. 67804.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Henry F. Davis, applying for writs of certiorari, or review. Parish of Jefferson, 24th Judicial District Court, Division H. No. 80-544.

Denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana ex rel. Billy Wayne SINCLAIR v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67820.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Billy Wayne Sinclair, applying for writs of certiorari and review. Parish of East Baton Rouge, 19th Judicial District Court. No. 54,969.

Denied.

BLANCHE, J., recused.


text:
    STATE of Louisiana ex rel. Ulysses LONG v. Frank BLACKBURN, Warden.
    No. 67833.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Ulysses Long applying for writs of certiorari and habeas corpus. Parish of East Baton Rouge. No. 1-77-2.

Denied.


text:
    STATE of Louisiana v. James Milton HENNIGAN.
    No. 67835.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re James Milton Hennigan, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Grant. No. 24126.

Denied.


text:
    Claudette McMath WILLIAMS v. Carl Aubrey WILLIAMS.
    No. 67837.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Claudette McMath Williams, applying for writs of certiorari, mandamus and review. Parish of Rapides. No. 107,653.

Denied.


text:
    STATE of Louisiana v. Stephen A. MUDD.
    No. 67838.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Stephen A. Mudd, applying for writ of certiorari or review. City Court, Parish of Caddo. No. A-72376.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Wayne Robert FELDE.
    No. 67840.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re State of Louisiana, through the District Attorney, Paul J. Carmouche, applying for writs of certiorari, mandamus and prohibition. Parish of Rapides. No. 196,240.

Denied.


text:
    Clydia DAVENPORT, Candidate for Constable, First City Court, New Orleans, Louisiana v. Clyde F. BEL, Sr., Constable, First City Court, New Orleans, Louisiana.
    No. 67843.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Clydia Davenport, applying for cer-tiorari, or writ of review to the Court of Appeal, Fourth Circuit. No. 10667. of Orleans. Parish

Denied.


author: DOMENGEAUX, Judge.

text:
    William HARKINS, Plaintiff-Appellee, v. CONTINENTAL OIL COMPANY et al., Defendants-Appellants.
    No. 7561.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Jones, Patín, Tete, Nolen & Hanchey, Bret L. Barham, Lake Charles, for defendants-appellants.
    McHale, Bufkin & Dees, Louis D. Bufkin, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and CUTRER, Judges.
   DOMENGEAUX, Judge.

This suit was instituted by William Har-kins against his employer, Continental Oil Company, and its workmen’s compensation carrier, Hartford Accident & Indemnity Company, to recover workmen’s compensation benefits. Judgment was rendered in favor of the plaintiff finding him to be totally and permanently disabled and entitled to benefits. In addition, penalties and attorney’s fees were awarded. Defendants bring this appeal from that judgment.

On January 28, 1978, William Harkins was employed as a truck driver by Continental Oil Company working out of Continental’s terminal in Westlake, Louisiana. On that date, Harkins and his co-driver, Dan Richardson, departed from the West-lake terminal en route to Avenal, New Jersey, to deliver drums of chemicals.

Plaintiff claims to have suffered an accident which caused injury to his cervical region and his right knee while assisting in unloading the drums in New Jersey on January 30, 1978.

At trial, the defendants strenuously argued that the plaintiff did not have an accident or suffer an injury to either the cervical region or his right knee. On appeal, the defendants concede that Mr. Har-kins did sustain an accident and that he possesses the cervical disability found by the trial court. Their argument is limited solely to the plaintiff’s knee injury and to the award of penalties and attorney’s fees.

The critical issue on appeal is whether the trial court erred in its determination that there was a causal relation between the plaintiff’s knee problems and the accident in New Jersey. This is essentially a factual determination. We agree with the following observations made by the trial court:

“. . . All issues are factual and present a rather classic example of the necessity for the Court to assess the credibility of witnesses, not only from their testimony, but also from their demeanor, forthrightness, evasiveness, sincerity or reluctance.
Defendant has vigorously attacked the credibility of plaintiff, both as to the occurrence and reporting of the accident and has demonstrated numerous inconsistencies in his testimony. The Court notes those inconsistencies but determines that they do not sustain defendant’s contention that no accident occurred. There is more than ample support of the claim of an accidental injury.
Plaintiff’s co-driver, Dan Richardson, testified that plaintiff had in the past performed his portion of their heavy and strenuous work well and without complaints; that plaintiff was all right on the trip to New Jersey but was in apparent pain returning; that plaintiff told him of the injury in the truck during the unloading operation and that he took over the remainder of the work because plaintiff was holding his arm and that he, Richardson, did most of the driving on the return trip and could hear plaintiff moaning in the truck cab sleeper. While this witness’ testimony was attacked on the basis of the driving time logs, it was apparent to the Court that he was being facetious when he refused to admit under oath to falsifying the logs. In fact, the Court found this witness’ testimony to be the most credible of all the many witnesses.
Plaintiff did sustain an accidental injury to his knee which resulted in an onset of symptoms resulting in unsuccessful surgery and is now totally and permanently disabled within the context of the Workmen’s Compensation Act.
The orthopedist who treated plaintiff and performed the orthopedic surgery, Dr. Drez, stated his opinion that ‘there is a great probability that a traumatic episode was responsible for the conditions I treated him for’.
Plaintiff obviously at first discounted the knee injury as being minor and also obviously exaggerated some of his later symptoms during his testimony. This, however, does not render all of his testimony uncredible. Mrs. Harkins saw the bruised knee shortly after his first hospitalization, showed it to Dan Richardson, and complained because plaintiff would not then call it to the attention of a doctor. The uncontradicted testimony of these two witnesses, taken with the testimony of Dr. Drez, so corroborates plaintiff’s testimony concerning the knee injury that the Court must accept his description of the accidental injury to the knee.

The standard of appellate review in Louisiana is well settled. In Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), the Supreme Court stated:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.”

This standard was further refined in Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978), when the Supreme Court added:

“ ‘Manifestly erroneous’, in its simplest terms, means ‘clearly wrong’. Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding of the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong.”

Our review of the entire record reveals that the decision of the trial court is not clearly wrong. It is well supported by the record.

The defendants argue that due to plaintiff’s inconsistencies we should apply the doctrine of “falsus in uno, falsus in omnibus” and disregard his testimony. While we recognize the validity of that doctrine in some circumstances, it is harsh and should be applied with caution. Bennett v. U. S. Fidelity & Guaranty Company, 373 So.2d 1362 (La.App. 1st Cir. 1979). There is sufficient corroboration of the existence of the accident and the extent of the plaintiff’s injury to conclude that the trial court was correct in not discrediting the plaintiff’s testimony. As stated, the trial court’s decision is well supported by the record.

The second issue before us is whether the trial court erred in awarding penalties and attorney’s fees. The trial court found that the employer, Continental, had ample information from the plaintiff regarding his injury. The trial court found that Continental’s inquiry was, at best, a cursory one and that it restrained its insurer from doing more. Regarding this issue, the trial judge stated:

“Defendant employer received ample notice from medical reports, and eventually from plaintiff directly, that he claimed job related injuries. They certainly received sufficient information, if only through medical information, to place them on such notice as to require an adequate investigation. Even after contact by plaintiff’s counsel requesting compensation and payment of medical expenses, the claim was denied.
Dan Richardson, plaintiff’s co-driver, testified that (apparently in mid July, 1978) he was called into the office of his boss, Marion Palmore, Continental’s Lake Charles transportation manager, and was directed to talk by telephone with the insurance adjuster, apparently Mr. La-ture, and gave him the same information concerning the accident as that to which he testified in court. This was done in the presence of Mr. Palmore. The adjuster was not called to testify and Richardson’s testimony on this information stands uncontroverted.
Thereafter Continental specifically denied compensation and still does so.
The failure and refusal to provoke an adequate investigation of plaintiff’s claim and the denial of compensation benefits in light of their knowledge of facts makes the refusal of benefits arbitrary and capricious and subjects defendants to statutory penalties and fees of plaintiff’s attorney.”

We note that the trial court further found that on the day the plaintiff returned to Lake Charles from New Jersey he went to see Doctor Bennerscheidt, Continental’s examining physician, and complained of his neck injury. Doctor Bennerscheidt referred the plaintiff to Doctor Litel, a neurosurgeon, who performed a cervical operation. Doctor Litel designated a 15 percent permanent partial disability as a result of the surgery. As stated earlier, the trial court’s finding of this cervical disability is not contested on appeal, but it does indicate the notice the defendants had regarding the plaintiff’s injury.

Defendants argue strenuously that the award of $7,500.00 for attorney’s fees was an abuse of discretion. We agree and reduce the attorney’s fees to the sum of $5,000.00. Concerning attorney’s fees, the trial judge made the following comments:

“The assistance rendered to plaintiff by his counsel, as demonstrated by facts revealed during trial, was exceptionally great prior to trial, was exceptionally great upon trial, which itself was unusually protracted and difficult. Counsel not only managed to get plaintiff to the hospital for surgery on his knee but succeeded in getting his hospitalization insurance reinstated after it was cancelled when the employer terminated him at the end of his job benefits period of six (6) months.
The work of the attorney for plaintiff prior to trial and under the eyes of the Court, together with the accomplishment, justifies, and the Court fixes, the fees of said attorney at $7,500.00.”

It is very evident from a review of the record that plaintiff’s counsel rendered substantial assistance to plaintiff in this hard fought case. The trial itself lasted three days. We are fearful, however, that the trial judge committed error when he considered certain efforts made by plaintiff’s counsel in order to have plaintiff’s hospitalization insurance reinstated after it was cancelled by the hospitalization insurance company. This of course had nothing to do with plaintiff’s workmen’s compensation claim.

In Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3rd Cir. 1979), writ refused January 28,1980, we affirmed an award for attorney’s fees in a workmen’s compensation case in the amount of $5,000.00, citing four recent cases which had made similar awards. Our research on the subject fails to uncover any workmen’s compensation cases where attorney’s fees were awarded in a sum greater than $5,000.00.

Although we do not mean to suggest that $5,000.00 is a limit for attorney’s fees in workmen’s compensation cases, we feel that considering all aspects of this case, that such an award is proper and sufficient here.

For the above and foregoing reasons, the award for attorney’s fees rendered by the trial court is reduced from the sum of $7,500.00 to the sum of $5,000.00. Otherwise, the District Court judgment is affirmed.

Costs on appeal are assessed four-fifths to defendants-appellants, and one-fifth to plaintiff-appellee.

AFFIRMED, AS AMENDED.


author: STOKER, Judge. SWIFT, Judge,

text:
    Joy Howell THOMASEE, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellants.
    No. 7580.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendants-appellants.
    Whitaker & Doggett, John B. Whitaker, Natchitoches, for plaintiff-appellee.
    Before FORET, SWIFT and STOKER, JJ.
   STOKER, Judge.

This is a suit by plaintiff, Mrs. Joy Howell Thomasee, for workmen’s compensation benefits against her former employer, the City of Natchitoches and the city’s workmen's compensation insurer, Liberty Mutual Insurance Company.

At the time of her injury plaintiff was employed by the city in various capacities as a cashier collecting utility payments and as an accounts receivable clerk. On January 9,1979, the United States Post Office in Natchitoches was being temporarily used as the City Hall. Plaintiff was leaving work at approximately 8:00 P.M. and was to ride home with a fellow employee. The co-employee’s automobile was parked in the Police Jury Parking Lot across the street from the post office. The city employees who were temporarily working in the Post Office Building had been requested to park there in order to leave sufficient parking on the streets. On her way to the car it was necessary that Mrs. Thomasee climb twelve to twenty steps that led to the parking lot. This parking lot was elevated above street level because it had once been the foundation of St. Mary’s High School in Natchi-toches. These old steps which had once led to the school were broken and uneven, and there was no handrail.

As plaintiff ascended these steps she slipped and fell, and, in an attempt to break her fall, she injured the wrist on her left arm. After this injury on Tuesday, plaintiff missed work until the following Monday. She continued to work for the City of Natchitoches until she was fired on April 6, 1979. Her attorney wrote the city concerning her workmen’s compensation claim on April 9. Suit was filed on June 7, and trial was on July 9. The trial court awarded plaintiff workmen’s compensation of $91.66 per week, two-thirds of her average weekly wages of $550.00 per month, beginning on April 19, 1979, and continuing during the period of disability which disability was judged to be total and permanent.

Defendants make three assignments of error:

“ASSIGNMENT OF ERRORS
“1. The Trial Court erred in finding that the plaintiff’s accident occurred within the course and scope of her employment for the City of Natchi-toches.
2. The Trial Court erred in finding that the injury to the plaintiff’s left wrist disabled her from performing the duties required of her as a cashier or clerk thus causing her to be entitled to workmen’s compensation on a total and permanent basis.
3. The Trial Court erred in finding that the injury to the plaintiff’s left wrist disabled her from engaging in any gainful occupation for wages.”

We will deal with each of these issues as they have been raised by defendants.

I.
Did plaintiff’s accident occur within the course and scope of her employment for the City of Natchitoches?
R.S. 23:1031, states:
“If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.”

Malone and Johnson, in their recently published treatise on workmen’s compensation, state:

“The courts have consistently stated that an accident that befalls an employee while he is going to or returning from work does not occur in the course of his employment.”

An important exception to this rather stringent rule is contained in the “threshold doctrine”. Under this doctrine an employee who meets with an accident outside the employer’s premises while going to or coming from work can recover if he can prove there exists (1) a distinctive travel risk for the employee in going to or coming from work, and (2) this risk exists in an area immediately adjacent to his place of work.

The Louisiana Supreme Court in explaining the requirement of a distinctive travel risk in Templet v. Intracoastal Truck Lines, Inc., 255 La. 193, 230 So.2d 74 (1969), said the risk must be one “to which the employee is regularly and peculiarly exposed by reason of his employment to which the public generally, albeit also subjected to such hazard, is not usually exposed to the extent of the employee.”

Professors Malone and Johnson expound on this issue in their treatise in Section 169 at page 353:

“In order that the ‘threshold doctrine’ should apply, it is not necessary that the dangerous approach where the accident occurred should be the only available means of access to the premises. If it is a customary approach, this is enough. In Doyle v. Penton Lumber Co., for example, the court applied the doctrine to a worker who elected to walk down the railroad track rather than use the slightly longer road leading to the customary entrance to his employer’s plant. The court relied upon the fact that the deceased frequently used this approach with the knowledge of his employer, even though the use of the track was not customary among other workers.”

The trial court found that the plaintiff in the present case “was exposed to descending and ascending the parking lot steps on a daily basis, going to and from the parking lot across the street to the Post Office . ” The court concluded “that a distinctive travel risk for the plaintiff existed in going to and from the Post Office to the parking lot.” From the evidence in the record we cannot say that the trial court was clearly wrong in these findings.

Plaintiff testified that the steps were very old, having led to a high school which had been torn down. Her testimony indicated that about half way up the steps were broken all the way across, and “they’re off-set a little bit.” She further testified that “there’s one [step] that is shorter. And that’s what I tripped on.” There was no handrail.

Plaintiff’s boss, Deborah Manning, who was employed as Director of Finance by the City of Natchitoches, testified that the city employees had been instructed to park in the Police Jury parking lot while their offices were temporarily in the Post Office. Manning approximated the number of steps as roughly twenty. Plaintiff, Thomasee, testified that the city employees “had been told to park in the Police Jury parking lot.” She added that, although there are several entrances to the parking lot, the steps on which she fell are the nearest available route and the one most of the employees of the City Hall used.

In light of these facts we find no manifest error in the trial court’s holding that the steps upon which plaintiff was injured comprise a distinctive travel risk to plaintiff, thus meeting the first requirement for application of the threshold doctrine.

The second requirement for application of the threshold doctrine is that the distinctive travel risk exist in an area immediately adjacent to the employee’s place of work. The parking lot is located, in the words of the trial court, “immediately adjacent to her place of work,” with “the steps . as close as physically possible to the City of Natchitoches’ offices.”

We find no manifest error in this finding of the trial court. We find that the steps were immediately adjacent to plaintiff’s place of employment. Thus, the second requirement for application of the threshold doctrine has been met, so its application was proper.

II.
Did the Trial Court err in finding that the injury to the plaintiff’s left wrist disabled her from performing the duties required of her as a cashier or clerk thus causing her to be entitled to workmen’s compensation on a total and permanent basis?
and
III.
Did the Trial Court err in finding that the injury to the plaintiff’s left wrist disabled her from engaging in any gainful occupation for wages?

Plaintiff testified that her arm began to hurt her on the night of her accident after she had arrived home from work. The next day she went to Natchitoches Parish Hospital and the following day to an orthopedic specialist in Shreveport, Dr. E. Lee Ether-edge. On May 3, 1979, plaintiff changed physicians, after Dr. Etheredge said he had done all he could and could not understand her lack of improvement. He suggested she get a second opinion. She then began to see Dr. Lewis C. Jones who was still seeing her at the time of the trial. Medical evidence in this case consists of seven progress reports of Dr. Etheredge and the deposition of Dr. Jones.

Plaintiff testified that following the accident she worked in pain and was required to take strong pain tablets that made her sleepy. At the time of trial Dr. Jones had given plaintiff a leather type splint to wear around her wrist and forearm, which she testified she wore four hours a day and at night. He also placed her on medication, being Clinorial, an anti-inflammatory medication and Elavil, a mood elevator. Dr. Jones diagnosed Mrs. Thomasee’s problem as tenosynovitis of the distal radio-ulna joint in her left wrist, or in lay terms, inflammation of the tendons about the joint at the end of the forearm of the left wrist. He had initially placed her in a long arm cast for three weeks.

Defendants made much of several statements by Dr. Jones in his deposition. He stated that “as far as any specific objective findings, I didn’t really find any particular evidence of abnormalities, such as discoloration or some logical — physical deformity.”

In the course of testimony by deposition given by Dr. Jones the following question and answer resulted.

“Q. * * * I would like to know, as of this time, what percentage of physical impairment would you give her for that left upper extremity?
A. It would strictly be on a almost subjective basis, for the complaints of pain. I don’t have any good objective evidence to give her an impairment other than on pain.”

And again, in response to an inquiry posed by defense counsel, the following exchange took place.

“Q. * * * Again, your examination of her — there was nothing objective that you could find wrong with her; is that correct?
A. That is correct.”

These statements of Dr. Jones are very persuasive for the cause of defendants, but of even more significance are some of the doctor’s other statements:

“ * * * I feel that her pain, to a large degree, is real.” “ * * * I would say, thirty-five to forty percent of temporary physical impairment.”
In answer to the question:
“Do you feel that her pain is real, in your professional opinion?”

Dr. Jones replied, “The pain she experiences is real.”

When the attorney for the plaintiff stated that he wanted to get down to the “bottom line” this dialogue followed:

“Q * * *
Do you think that Mrs. Thomasee was faking her injury, or her pain?
A. I don’t think that she was faking the injury. I don’t think that she was deliberately faking the pain, or even pretending that she was having the pain.
As I stated earlier, I think the pain of the patient, which she is experiencing is real.”

An appellate court may not disturb a finding of fact by a district court unless it appears that the finding is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). The statements of Dr. Jones, Dr. Etheredge, and the plaintiff pertaining to her injury, when read along with the rest of the record, indicate that the determination of the district court that plaintiff is disabled was not clearly wrong.

Dr. Etheredge’s seven reports show Mrs. Thomasee was in pain, and she was required to wear splints and take medication during the time she saw him from January 11, 1979, through April 18, 1979. The doctor’s last report indicated Mrs. Thomasee was having trouble with typing and key punch. When she began seeing Dr. Jones he continued her in a splint and found her to have tenderness to palpation over the dorsum of the distal radio-ulna joint of the wrist, more simply described as an inflammation of the tendons and synovia about the joint. This inflammation was found to be located in the joints at the end of the forearm at the wrist. Dr. Jones had prescribed and continued to prescribe Clinorial, to decrease inflammation, and Elavil, a mood elevator. In addition she was referred to a physiotherapist, and a transcuta-neous neurostimulator was prescribed for her. This was a cumbersome device which Mrs. Thomasee attached to her arm at night. It sent out electric shocks that eased the pain to allow plaintiff to sleep.

As we have noted Dr. Jones estimated that plaintiff’s pain caused 35 to 40 percent temporary physical impairment. It was based on these facts that the trial court determined that plaintiff was disabled from performing her job for the City of Natchi-toches. The court awarded workmen’s compensation “on a total and permanent basis.” This was the proper award since the courts have said that it is a permanent and total disability when one cannot work without substantial pain. Phillips v. Dresser Engineering Co., 351 So.2d 304 (La.App. 3rd Cir., 1977), writ denied 353 So.2d 1048 (La., 1978); Rachal v. Highlands Insurance Co., 355 So.2d 1355 (La.App. 3rd Cir., 1978); Jones v. Arnold, 371 So.2d 1258 (La.App. 3rd Cir., 1979) and Whitaker v. Church’s Fried Chicken, Inc., Docket Number 65,401, Louisiana Supreme Court, April 7,1980.

For the above and foregoing reasons the action of the trial court is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.

SWIFT, Judge,

dissenting.

I must respectfully dissent from the majority’s decision as I am not convinced that the plaintiff was exposed by her employment to any distinct risk to which the public was not exposed generally. Templet v. Intracoastal Truck Lines, Inc., 255 La. 193, 230 So.2d 74 (La.1969).

      .Malone and Johnson, Workers' Compensation Law and Practice, 13 Louisiana Civil Law Treatise, Section 168 p. 344.

      . Id., Section 169 at p. 350.

      . 56 So.2d 774 (La.App. 1st. Cir., 1952).

      . Deposition of Dr. Lewis C. Jones, p. 15, lines 5-11.

      . Id., p. 27, lines 9-12.

      . Id., p. 15, lines 12 and 16-17.

      . Id., p. 15, lines 21-23.

      . Id., p. 36 beginning at line 23 and extending through p. 37, line 4.