author: LEMMON, Justice. DENNIS, Justice, WATSON, Justice,

text:
    STATE of Louisiana v. Jimmy R. ROBINSON
    No. 81-KA-1801.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves and David C. Loeb, Asst. Dist. Atty., for plaintiff-appellee.
    A.J. Boudreaux, Metairie, William No-land, New Orleans, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of first degree murder and a sentence of death. Although we affirm the conviction, we must set aside the sentence because of the prosecutor’s improper closing argument to the jury. We accordingly remand the matter for the trial court to conduct a new sentencing hearing.

Facts

On August 5, 1980, defendant and Keith Stewart knocked at the door of the apartment of Mrs. Joyce Waites, who managed an apartment complex. They told Mrs. Waites that they wanted to apply for a job, but they left when she advised that there were no positions available. Approximately 30 minutes later, Mrs. Waites answered another knock at the door and was confronted by the same two men, who drew guns and demanded money. When Mrs. Waites pointed to her purse, defendant placed a gun against her head and told her to lie on the floor.

Defendant held the gun to Mrs. Waites’ head, while Stewart searched the house for valuables. Mrs. Waites warned that her husband was coming home for lunch soon and begged them to leave, but they did not do so. When the husband arrived, defendant and Stewart used the gun to require him to lie on the floor next to Mrs. Waites. Defendant then made Mrs. Waites accompany him upstairs to search for more money. When they came back downstairs, defendant again told her to lie on the floor next to her husband.

Mrs. Waites told defendant that she could not stop shaking and asked for a cigarette, which defendant gave her. At defendant’s instruction, she placed her head on the floor and closed her eyes. When she heard a shot, she looked up and started screaming when she saw that her husband had been shot. Defendant placed the gun against her head and told her to shut up or she would be next. Shortly thereafter, defendant and Stewart left the apartment with the stolen money in the Waites’ car.

Mr. Waites died of a gunshot wound to the head. Later the same day, defendant was arrested and confessed to the shooting, but claimed that the gun went off accidentally. Defendant admitted, however, that the hammer of the gun was cocked prior to the shooting.

Review of Guilt Phase

The evidence clearly supports the jury’s finding that defendant committed the murder, with specific intent to kill, and was engaged in the perpetration of an aggravated burglary. R.S. 14:30. While armed with a dangerous weapon, defendant entered an inhabited dwelling without authority and with the intent to commit a theft therein. R.S. 14:60. Defendant’s cocking of the gun’s hammer and his subsequent threat to kill Mrs. Waites militate against defendant’s claim of accident and support the jury’s finding of a specific intent killing.

Defendant’s only contentions with regard to the guilt phase of the trial are that the trial judge erred in refusing to allow him to waive the jury trial and in refusing to allow him to plead guilty without capital punishment.

While an accused in Louisiana has a statutory right to waive a jury trial in noncapital cases, La. Const. Art. I, § 17 (1974) requires that a capital case shall be tried before a jury of 12 persons. Furthermore, an accused’s Sixth Amendment right to a jury trial does not carry with it the privilege of insisting on the opposite of that right. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). An accused in a capital case does not have an independent statutory or constitutional right to be tried by a judge alone. State v. Whitt, 404 So.2d 254 (La.1981).

Although this court has recognized the trial court’s authority (with the state’s consent) to accept a plea of guilty in a capital case if both sides stipulate that a life sentence is to be imposed, the trial judge here properly refused to accept defendant’s unilateral offer to plead guilty and thereby deprive the state of the opportunity to seek capital punishment. State v. Jett, 419 So.2d 844 (La.1982). While C.Cr.P. Art. 557 only expressly prohibits a defendant in a capital case from entering an unqualified plea of guilty (thereby preventing “judicial suicide”), a defendant may not enter a “qualified plea” of guilty in a capital case unless the district attorney agrees to accept the plea. See C.Cr.P. Art. 558.

Review of Penalty Phase

Defendant argues several assignments of error concerning the penalty phase. However, since the prosecutor’s improper closing argument requires the setting aside of the death penalty, it is unnecessary to resolve the merits of defendant’s other contentions.

In closing argument, the prosecutor stated:

“[N]ow is the time when I have to ask you to do the most difficult thing that I can ask you to do. I have to ask you to recommend to the judge that the defendant be sentenced to death. But I’m not going to stand here and pretend to you that that recommendation is going to result in the certainty of the defendant’s execution. And I want you to be fully aware of this because I think it is important for you to consider during your deliberations. If you decide to recommend to Judge Currault that he sentence the defendant to death, then Judge Currault will have an opportunity to decide whether that is appropriate and if not, he has the power to grant the defendant a new trial. And if Judge Currault doesn’t do that then the law provides that this case will be reviewed by the seven Justices of the Louisiana Supreme Court and they also will review your recommendation of death.
“Article 905.9 of the Code of Criminal Procedure provides that ‘The Supreme Court of Louisiana shall review every sentence to determine if it is excessive. The Court by rule[s] shall establish such procedures as are necessary to satisfy constitutional criteria for review.’ Part of those criteria — and I’ll read them to you — ‘Every sentence of death shall be reviewed by this court,’ meaning the Louisiana Supreme Court, ‘to determine if it is excessive. In determining whether the sentence is excessive the court shall determine [a] whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors and (b) whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and (c) whether the sentence is disproportionate to the penalty imposed in similar cases considering both the crime and the defendant.’
“If the Louisiana Supreme Court finds that your recommendation is appropriate, then there is a very strong possibility— probability that this case will be reviewed by the Federal Court System and possibly eventually by the United States Supreme Court. And those nine justices will also sit in review of your decision to recommend the death penalty for this defendant.
“And if, after all of those judges have reviewed every single thing that we have done during the course of this trial, they feel that it is still appropriate, then and only then does it become possible to execute the defendant. And even then the Governor of this State must review what you have done to determine whether he feels it is appropriate.
“So, ladies and gentlemen, you are only the first step. Only the first step. I can’t even be honest and say that there is a strong possibility that we will get through all of that review.”
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“If there is such a strong possibility that the defendant will never see the electric chair why would I waste your time? Why would I waste this court’s time in going through all of the things we have gone through in the last few days? I’ve asked myself that question hundreds of times over the last several months and the answer is, ladies and gentlemen, we have to do something. We cannot sit idly by and be murdered in our own homes during the middle of the day. Some place, sometime, we have to say to our community that the activities, the killing committed by this defendant is not acceptable and we will not permit that sort of destruction of our community. We will not tolerate it. We have had enough of being murdered in our own homes during the middle of the day.”
% Hi % # !}; >fs
“If we are going to send a message to our community; if we are going to go home and live with ourselves, we have to do something. I’m not going to pretend to you that if you recommend that this defendant be sentenced to death we’re going to solve the problem of crime in the streets. I’m not going to even argue to you that it will make a significant contribution to that but ladies and gentlemen, we’ve got to do something. We can’t sit idly by and be murdered in our own homes during the middle of the day.”
“If ever there was a time when I can feel justified in saying to you that it is appropriate now to say to our community enough, this is the case. I know that the burden of making that decision is heavy indeed. I carry the same burden when I decided in this case to ask you for the death penalty. But as I know you must know, and as I told you earlier in this argument, you will not be alone in reviewing. After you have reviewed it, Judge Currault will review it; the seven Justices of the Louisiana Supreme Court will review it and the Justices of the United States Supreme Court will also have an opportunity to review it. But you have to take the first step. I have gone as far as I can go. I can do no more. Thank you.”

And in rebuttal closing argument, the prosecutor stated:

“If you come back and you recommend to Judge Currault that he impose a sentence of death, as I told you that recommendation will be reviewed and rehashed and reviewed and rehashed many, many times. Judges and lawyers will be looking at this case for years to come deciding whether what we’ve done here is correct, but if you don’t recommend the death penalty at the first instance it will never get to that. It will never get to that. You individually and you collectively will have to take that first step. You will have to make that recommendation. That is your burden. That is what I chose you to do. You have an opportunity, ladies and gentlemen. You have an opportunity to say, we have had enough. We’re not the guilty ones. We don’t deserve to have to put burglar bars on our windows and on our doors and alarms on our houses. We’re not guilty. We shouldn’t have to be afraid in our own homes. And we can do something. We can do something about it. I can’t pretend to you that it’s going to be much but it’s something. It’s better than sitting in our homes and being murdered.” (Emphasis supplied.)

The closing argument requires that the death sentence be set aside, because this court cannot determine that misleading and improper remarks of this magnitude did not influence the jury’s recommendation. See State v. Willie, 410 So.2d 1019 (La.1982).

The prosecutor informed the jury that the trial judge had the power to set aside an inappropriate death sentence (by granting a new penalty trial), that the entire federal court system could review such a sentence, and that the governor must review it. He then strongly suggested the improbability that a death sentence would be sustained when “we ... get through all of that review”. He ended his closing argument by telling the jurors that their decision was unlikely to “make a significant contribution” because of the extensive process of appellate review of capital cases. In rebuttal closing argument, the prosecutor reviewed the evidence of statutory aggravating and mitigating circumstances before concluding with a reminder that the jury’s decision would be “reviewed and rehashed . .. for years to come” and that the importance of their function in the capital sentencing process was not “going to be much but it’s something”.

The function of the jury, while important in every case, is particularly critical in the bifurcated trial of capital cases, because the jury alone has the prerogative to impose a death sentence. C.Cr.P. Arts. 905 and 905.-3. It is therefore imperative that the jury’s sentencing discretion be protected from the influence of arbitrary and inappropriate factors.

Remarks concerning appellate review of death sentences are generally inappropriate, because such remarks may suggest to a conscientious juror that his awesome responsibility is lessened by the extensive system of subsequent review, thus diverting the juror’s attention from the central sentencing issue of whether death is the appropriate punishment for this offense and this offender. See State v. Berry, 391 So.2d 406 (La.1980). Because the jury’s function is to weigh the aggravating and mitigating circumstances in deciding whether to recommend a death sentence, remarks concerning postsentence review proceedings are generally irrelevant. Moreover, the jury’s recommendation is virtually unassailable when supported by the evidence and when the penalty trial was free of arbitrary and prejudicial considerations. Any suggestion that the jury’s responsibility is lessened by appellate review or that the jury’s recommendation is just a “beginning step” in the process can easily mislead a layman who is unfamiliar with the limitations governing appellate review. See State v. Willie, above.

In State v. Berry, above, this court warned:

“Any prosecutor who refers to appellate review of the death sentence treads dangerously in the area of reversible error. If the reference conveys the message that the jurors’ awesome responsibility is lessened by the fact that their decision is not the final one, or if the reference contains inaccurate or misleading information, then the defendant has not had a fair trial in the sentencing phase, and the penalty should be vacated.
“But virtually every person of age eligible for jury service knows that death penalties are reviewed on appeal. There is no absolute prohibition against references to this fact of common knowledge, and this court should not impose an absolute prohibition, since such a reference does not necessarily serve to induce a juror to disregard his responsibility. The issue should be determined in each individual ease by viewing such a reference to appellate review in the context in which the remark was made.” (Footnote omitted.)

The court affirmed the death sentence in the Berry case because the prosecutor’s remarks on appellate review, which were included in a commentary on the fairness of the legislative scheme for capital punishment, did not serve to lessen the jurors’ appreciation of the significance of their role in the overall scheme.

The remarks in the present case, unlike those in Berry, tended to convince the jurors that their role in imposing the death penalty was minimal because of extensive appellate safeguards. This is especially true in view of the prosecutor’s suggestion that there was a “strong possibility that the defendant [would] never see the electric chair” despite the jury’s death penalty recommendation.

Because we cannot say that the jury’s sentencing discretion was unaffected by the prosecutor’s repeated and often misleading references to the largely irrelevant consideration of appellate review of death sentences, we must set aside the death sentence and remand for a new sentencing hearing.

Accordingly, the conviction is affirmed, but the sentence is set aside and the matter is remanded for a new sentencing hearing.

DIXON, C.J., concurs.

MARCUS, J., concurs and assigns for reasons assigned by WATSON, J.

DENNIS, J., concurs with reasons.

WATSON, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

I respectfully concur but object to and disagree with the procedure employed by the majority in its footnote number 1. First, the footnote says that it will not address the issue of whether defendant’s confession containing other crimes evidence is admissible. Second, it then goes on to give several reasons why the evidence should be admissible. Third, it justifies its failure to address any of the forceful arguments presented in defendant’s brief with the questionable statement that “we intimate no inclination on the merits of these issues.” This treatment of a very important issue is perplexing. If the majority wishes to “intimate no inclination” it should not present an argument for introduction of thé evidence. On the other hand, if it wishes to decide the issue, commit this court to a position and give guidance to the trial court, it should forthrightly address both sides of the argument and resolve it decisively in the text of its opinion.

WATSON, Justice,

concurring.

As a general rule, prosecutors and defense counsel should be allowed considerable latitude in arguing cases to the jury.

Jurors are told over and over at every stage of the proceedings that the opening statements and closing statements are not to be regarded as evidence but only as argument.

It is naive to believe that a few words in a closing argument can fill modern-day jurors with prejudice and passion against the defendant, causing them to ignore the evidence and the law and convict. Likewise, a brief and correct statement concerning the possibility of pardon does not interject such an arbitrary factor into deliberations in a capital case as to require setting aside the sentence.

Therefore, I have been strongly disinclined to reverse convictions or sentences in otherwise fair trials on the basis of a few poorly chosen or misguided words from the prosecutor in closing argument.

However, the prosecutor’s argument here represents a most thorough and most persistent attempt to minimize the jury’s role in deciding whether the defendant is to receive capital punishment. In at least eight different examples by actual count, the prosecutor advised the jury that some other authority would review their decision as he belittled the role of the jury. The prosecutor’s remarks represent a gross disregard for confining argument to the law and the evidence. LSA-C.Cr.P. art. 774. Reversal of the sentence is required.

I concur with the majority in affirming the conviction, reversing the sentence and remanding for further proceedings.

      . Because we are remanding for a new penalty hearing (and for the selection of a new subsequent sentencing jury), we need not consider defendant’s other complaints regarding the conduct of the penalty hearing. Any complaints defendant may have regarding the excusing of prospective jurors based on their attitude toward imposition of the death penalty are moot, because the recommendation of that jury is being set aside. See State v. Edwards, 406 So.2d 1331 (La.1981). The alleged “Wither-spoon” error does not affect the guilt determination and thus is moot in view of our reversal of the death penalty. See State v. Kent, 391 So.2d 429 (La.1980). Compare State v. Turner, 253 La. 763, 220 So.2d 67 (1969). For guidance on the “Witherspoon” issue in the selection of the new penalty jury, see Williams v. Maggio, 679 F.2d 381 (5th Cir. 1982); C.Cr.P. Art. 798.
      We are also-not required to resolve defendant’s complaint regarding the admissibility at the penalty trial of defendant’s confession (determined in the guilt phase to be voluntary) that he committed a series of other burglaries and a robbery in close temporal proximity to the commission of the offense in question. The evidence was offered to prove the statutory aggravating circumstance that defendant had a “significant prior history of criminal activity”. C.Cr.P. Art. 905.4(c). Defendant, citing Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976), argues that the aggravating circumstance is unconstitutional, because the statute does not set forth sufficiently clear and objective standards.
      On the other hand, the disputed portion of C.Cr.P. Art. 905.4(c) arguably is an appropriate corrollary to the statutory mitigating circumstance of the lack of a significant prior history of criminal activity. C.Cr.P. Art. 905.5(a). And even without the express inclusion of “pri- or significant history of criminal activity” (which was added to C.Cr.P. Art. 905.3(c) by Act 74 of 1979), such evidence could perhaps be introduced to negate the existence of the mitigating circumstance, which the trial judge reads to the jury in his instructions, whether or not either side introduces evidence. Further, the offenses were proved by reliable evidence (defendant’s own voluntary confession), of which defendant clearly had notice. In addition, the other crimes evidence related to offenses which were committed in close temporal proximity to the first degree murder and which could fairly be described as part of the same “crime spree”.
      Although the issues of the admissibility of “other crimes” evidence and the constitutionality of the “significant prior history” addition to C.Cr.P. Art. 905.3(c) may be presented again if the subsequent sentencing jury is exposed to such evidence and again recommends the death penalty, our resolution of the merits of those issues at this point would involve reaching a constitutional issue which need not now be decided, in view of our setting aside the death sentence on other clear grounds. Therefore, we intimate no inclination on the merits of these issues.

      . This statement was inaccurate because, under the statutory scheme adopted by Acts 1978, No. 758, amending R.S. 15:567, the trial court, rather than the Governor, orders defendant’s execution and sets the date. The Governor may exercise his constitutional authority to commute a death sentence, but this step requires an affirmative intervention by the chief executive. La. Const. Art. IV, § 5(E).

      . The quoted statement was made in a per curiam denial of rehearing on November 26, 1980. The closing argument in the present case was made on January 8, 1981, after the warning in Berry.

      . See, for example, dissents in State v. Jordan, 420 So.2d 420 (La., 1982) and State v. Brown, 414 So.2d 689 (La., 1982). Also see State v. Sharp, 418 So.2d 1344 (La., 1982).


source: Caselaw Access Project

author: WARD, Justice Pro Tern.

license: Public Domain

text:
    STATE of Louisiana v. Donald ARBUTHNOT.
    No. 82-KA-0217.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearing Denied Nov. 24, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., A. Zach Butterworth, Asst. Dist. Atty., for plaintiff-appellee.
    Thomas C. McKowen, IV, Clinton, for defendant-appellant.

       Dixon, C.J., Calogero and Dennis, JJ., would grant a rehearing.

   WARD, Justice Pro Tern.

Donald Arbuthnot, while confined in the State Penitentiary at Angola after his conviction for armed robbery, was charged with the crime of attempted simple escape from that institution. After trial, a jury of twelve persons returned a verdict of guilty as charged. The Trial Judge thereafter sentenced Arbuthnot to serve two years consecutively, meaning in addition to the sentence he was serving for armed robbery.

Arbuthnot has appealed both his conviction and his sentence. He contends that his conviction should be reversed because, first, the verdict was based upon an invalid bill of information, and second, because the verdict is not supported by the evidence. As to his sentence, Arbuthnot believes that it is excessive, and he has requested this Court to vacate it and to remand his case to the Trial Judge for resentencing.

We affirm both the conviction and sentence.

Arbuthnot makes two arguments why his conviction should be reversed. The first argument is directed to the wording of the bill of information, and his counsel made a motion in the Trial Court after the jury was selected but outside their presence, asking the Trial Judge to quash what counsel believed to be a faulty bill of information. Arbuthnot argued then, as he does now, that the bill is invalid as a so-called long form of information because it does not allege all of the elements of the crime, and he argues that it is invalid as a short form of information because it does not follow the exact wording prescribed by statute. Hence, he contends it is not acceptable as either a long or a short form bill of information.

The bill charged Arbuthnot with attempted simple escape by using the following language:

“Donald Arbuthnot committed attempted simple escape from Louisiana State Penitentiary, a place where he was lawfully confined, wherein human life was not endangered.”

The bill obviously does not meet the requirements of a long form of information, but we nevertheless believe it is a valid short form information.

La.CICr.P. Art. 465, which authorizes the use of short forms to charge crimes, suggests the form of an information which may be used to charge the crime of attempted simple escape. Yet the suggested language of the short form is not so sacrosanct that words may not be added if it contains the other necessary averments. Statements of additional facts pertaining to the offense charged will not affect the sufficiency of the short form bill of information. La.C.Cr.P. Art. 465(B). So the phrase “wherein human life was not endangered” added to the short form did not destroy its validity. Furthermore, Arbuthnot’s motion to quash, made after the jury was selected, was not timely filed. La.C.Cr.P. Arts. 535(A)(2) and 761. For both these reasons, therefore, the Trial Judge was correct in denying Arbuthnot’s motion to quash the bill.

Arbuthnot’s second argument is that his conviction should be reversed because the evidence was insufficient to support the jury verdict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) held that due process requires more than some evidence of guilt to support a verdict of guilty, which was formerly the Louisiana standard, and the United States Supreme Court established what is now the sufficiency of evidence test: a verdict of guilty must be set aside if a reasonable trier of fact, viewing the evidence in the light most favorable to the State, could not conclude the crime had been proven beyond a reasonable doubt. Arbuthnot, relying on the Jackson case, now argues that the State did not prove a specific intent to commit the crime of simple escape (one of the elements of the crime of attempted simple escape) and that no reasonable trier of fact could conclude the crime had been proven beyond a reasonable doubt, even when the evidence is construed in the light most favorable to the State.

A synopsis of the uncontested facts is necessary to understand why Arbuthnot believes the verdict must be reversed. In 1976, a jury convicted Arbuthnot of armed robbery, and he was sentenced to the custody of the Director of the Department of Corrections, who ordered Arbuthnot transferred to Angola. Shortly thereafter, Ar-buthnot became a trustee, a status which gave him a measure of freedom in the barracks area on the penitentiary grounds, and, although confined to the dormitory housing, he was free to move from place to place, as long as he reported to his assigned duties. Nonetheless, on November 30,1976, although Arbuthnot was present at his dormitory at 7:00 a.m., he was absent from the regular 4:15 evening roll call. A search party was formed immediately, but Arbuth-not was not found until 5:00 p.m. the next day, hiding underneath another dormitory about two hundred yards from his own. A hole had been smashed in that dormitory’s foundation of cinder blocks and Arbuthnot had crawled through the hole and concealed himself by lying on top of ventilation ducts on top of the dormitory. .

As counsel for defendant contends, one of the elements of the crime of simple escape is a specific intent to escape.

“Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10.

And as counsel also points out, this court, in a remarkably similar case, reversed a conviction of escape because it believed there was insufficient evidence to support a verdict of guilty where an essential element of the crime, a general criminal intent to escape, had not been proved beyond a reasonable doubt. State v. Liggett, 363 So.2d 1184 (La.1978).

In spite of the similarities, however, there are substantial differences. In the Liggett case, Liggett disappeared in the morning when he failed to appear for a work detail. He was found the same afternoon in the prison cannery, hiding in a conveyor, lounging on one of the belts with a pillow under his head, reading a pocket novel. In this case, Arbuthnot also was last seen in the morning, but he was not found until the next afternoon, more than thirty hours later, hiding not in the languid style of Lig-gett, but furtively, in cramped quarters, under a dormitory on top of ventilation ducts.

We believe that Arbuthnot’s motion for a new trial was properly denied because there is sufficient evidence to support the jury verdict. Arbuthnot’s absence of more than thirty hours, his entering the hiding place through a hole smashed in a cinder block foundation, and his spending the November night in cold, cramped quarters rather than in his dormitory bed, are evidentiary facts which, when considered in the light most favorable to the State, might well convince a reasonable trier of fact that the State had proved beyond a reasonable doubt that Ar-buthnot had a specific intent to escape.

Finally, Arbuthnot contends that his sentence is excessive. The Trial Judge, after considering the sentencing guidelines of La.C.Cr.P. Art. 894.1, explained the reasons for his sentence.. He indicated that he considered the seriousness of this offense to be of great importance in determining an appropriate sentence, meaning Arbuthnot must consider the consequences of attempts to escape. We agree; the sentence is not excessive.

Both the conviction and sentence are affirmed.

       Judges William H. Byrnes and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Pro Tempore, with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.


author: PER CURIAM.

text:
    STATE of Louisiana v. Eldridge BROADNAX.
    No. 82-K-1402.
    Supreme Court of Louisiana.
    Oct. 22, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Jacks Peebles and John Craft, Asst. Dist. Attys., for relator.
    Robert Glass, New Orleans, for respondent.
   PER CURIAM.

Defendant was charged in two bills of information with possession of pentazocine with intent to distribute in violation of La. R.S. 40:967. A second count in one of the informations also charged him as a convicted felon with possession of a firearm, La. R.S. 14:95.1. On May 25, 1982, the trial court granted defendant’s motion to suppress the evidence in both cases, and the state sought review of those rulings in this Court. We granted the state’s application for supervisory writs, 416 So.2d 936 (La.1982), and set the case for oral argument. However, proof of defendant’s death has been filed in this Court. The prosecution is therefore abated against defendant. State v. Clayton and Isom, - So.2d - (La.1982), Nos. 82-KA-0730, 81-KA-1514; State v. Hamilton, 370 So.2d 874 (La.1979); State v. Ferina, 351 So.2d 1200 (La.1977); State v. Morris, 328 So.2d 65 (La.1976).

Accordingly, we.withdraw the grant of the state’s writ application and remand this case to the trial court with instructions to dismiss the bills of information.

WRIT GRANT VACATED; CASE REMANDED.


author: MARCUS, J.,

text:
    Gail A. Cucurollo, wife of/and Michael J. DUCOTE v. Arthur H. ARNOLD, Sr. & Cecil A. McConnell a/k/a A.J. McConnell, Jr. d/b/a Arnold Construction Company.
    No. 82-C-2113.
    Supreme Court of Louisiana.
    Oct. 29, 1982.
    DIXON, C.J., would deny because the result is correct.
   MARCUS, J.,

would grant because of the award of $5,000 for inconvenience and mental anguish. I consider the award contrary to Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976).

DENNIS, J., votes to deny the application.

BLANCHE, J., would grant for reasons assigned by MARCUS, J.


text:
    STATE of Louisiana ex rel., Wendell A. MARTIN v. Jerome WINSBERG, Judge, Sect. C., Crim. Dist. Ct., Par. of Orleans.
    No. 80-KH-2141.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In re Wendell A. Martin, applying for writ of mandamus. Parish of Orleans. No. 263-888.

Denied.


text:
    STATE of Louisiana v. Donald LANDRY.
    No. 82-KH-1985.
    Supreme Court of Louisiana.
    Oct. 15, 1982.
   In re Donald Landry, applying for writ of mandamus. Parish of Orleans, Criminal District Court. No. 281-015.

Granted. The district court is ordered to act on relator’s motion for bail pending appeal within five days.


text:
    Lewis BUSLER, Jr. v. Pamela Kersh BUSLER.
    No. 82-C-2533.
    Supreme Court of Louisiana.
    Oct. 15, 1982.
   In re Lewis Busier, Jr., applying for supervisory writs. Parish of Jefferson, Twenty-fourth Judicial District Court. No. 257-952; 5th Circuit, Court of Appeal. No. 82-C-116.

Denied.


text:
    STATE of Louisiana ex rel. Larry JONES v. Ross MAGGIO, et al.
    No. 82-KH-1250.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Larry Jones, applying for remedial writs. Parish of Tangipahoa. No. 44456.

Granted. It is ordered that the detainer on relator be recalled and removed from his record.


text:
    STATE of Louisiana v. Anthony Wayne MORROW.
    No. 82-K-2081.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Anthony Wayne Morrow, applying for supervisory and remedial writs. Parish of St. Tammany. Twenty-second Judicial District Court. No. 53767.

Granted.


text:
    STATE of Louisiana, ex rel., Allen BURTON v. 21ST JUDICIAL DISTRICT COURT.
    No. 82-KH-2476.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Allen Burton, applying for remedial writs. Parish of Tangipahoa.

Granted. Trial court is ordered to rule on relator’s application not later than 10/27/82.


text:
    STATE of Louisiana v. Robert Lee HUMPHRIES, Jr.
    No. 82-KH-2477.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Robert L. Humphries, Jr., applying for remedial writs. Parish of Vernon.

Granted for the limited purpose of transferring application to the court of appeal for consideration.


text:
    STATE of Louisiana v. Herbert VENTRESS.
    No. 82-KH-2457.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Herbert Ventress, applying for writ of mandamus. Orleans Parish. No. 290-318.

Granted and transferred to the court of appeal.


text:
    STATE of Louisiana ex rel., Eddie LeBLANC v. STATE of Louisiana.
    No. 82-KH-2814.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Eddie LeBlanc, applying for remedial writs. Parish of Orleans. No. 264-016.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Michael JUENGAIN v. Presiding Judge, Frank M. MARULLO, “D” Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 81-KH-1295.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Michael Juengain, applying for writ of mandamus. Parish of Orleans. No. 255-402.

Denied. Moot.


text:
    STATE of Louisiana ex rel., Samuel J. TROPEZ, Jr. v. PRESIDING JUDGE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS SECTION “D”, STATE OF LOUISIANA.
    No. 81-KH-1347.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Samuel J. Tropez, Jr., applying for remedial writs. Parish of Orleans. Nos. 194-683 and 200-178.

Denied.


text:
    STATE of Louisiana, ex rel., Gary JEFFERSON v. Judge Matthew S. BRANIFF, Criminal District Court, New Orleans, Louisiana.
    No. 81-KH-1914.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Gary Jefferson, applying for writ of mandamus. Parish of Orleans. No. 264-186.

Denied.


text:
    STATE of Louisiana, ex rel., Marvin MILLER v. STATE of Louisiana.
    No. 81-KH-1915.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Marvin Miller, applying for remedial writs. Parish of Orleans. No. 251-951.

Denied. Relator must apply first to district court.


text:
    STATE of Louisiana v. Barry J. MURPHY.
    No. 82-K-1693.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Barry Murphy, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 81-239.

Writ denied.

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


text:
    STATE of Louisiana v. Daniel SAUNIER.
    No. 82-K-1776.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Daniel Saunier, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Jefferson. No. 81-3763.

Denied.

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


text:
    STATE of Louisiana, ex rel. Bobby Joe VIDRINE v. Honorable Mike CANNON, Clerk of Court, 19th Judicial District Court, Parish of East Baton Rouge, Louisiana.
    No. 82-KH-1834.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Bobby Joe Vidrine, applying for writ of mandamus. Parish of East Baton Rouge. Nos. 30050; 27459 and 27459%.

Denied. Relator has not paid the required filing fee in the district court.

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


text:
    STATE of Louisiana, ex rel., Ronald MOUTON v. Honorable Lucien C. BERTRAND, Jr. Judge, Fifteenth Judicial District Court, Parish of Lafayette.
    No. 82-KH-1842.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Ronald Mouton, applying for writ of mandamus. Parish of Lafayette. No. 40981.

Denied.

DIXON, C.J., and CALOGERO, J., would grant and order an evidentiary hearing.


text:
    STATE of Louisiana v. Richard CHILDRESS.
    No. 82-AW-1863.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Richard Childress, applying for remedial writs. Parish of DeSoto. Eleventh Judicial District Court. No. 45805-A.

Writ denied.


text:
    Viola JOHNSON v. HOSPITAL AFFILIATES INTERNATIONAL INC., et al.
    No. 82-C-1909.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Viola Johnson, applying for writ of certiorari or review. Parish of East Baton Rouge. First Circuit, Court of Appeal. No. 14798.

Denied.

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


text:
    STATE of Louisiana v. Todd TRAHAN.
    No. 82-K-2009.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Todd Trahan, applying for writs of review, certiorari, and supervision. Parish of Orleans. No. 82-1349.

Denied.

CALOGERO, J., would grant the writ.


text:
    Rayfield WHITE, Sr. v. JOHNS-MANVILLE PRODUCTS CORPORATION.
    No. 82-C-2040.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Rayfield White, Sr., applying for certiorari, or writ of review, to the Court of Appeal, from the Twenty-fourth Judicial District Court. Parish of Jefferson. No. 5-242.

Denied.


text:
    EMPLOYERS INSURANCE OF WAUSAU, et al. v. Roosevelt LEWIS.
    No. 82-C-2041.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Roosevelt Lewis, applying for writ of certiorari or review from the Third Circuit, Court of Appeal. Parish of Natchi-toches. No. 8776.

Denied.

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


text:
    Renee WHITE (STATE ex rel.) v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-2160.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Renee White, applying for writ of certiorari from the Twenty-fifth Judicial District Court. Parish of Plaquemines. No. 67980.

Denied.

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


text:
    STATE of Louisiana ex rel., Hugo COX v. Clerk H.M. Mike CANNON, Sheriff A. Amos.
    No. 82-KH-2227.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Hugo Cox, applying for writ of mandamus. Parish of East Baton Rouge. No. 2-77-206.

Denied. District court has, on 7/23/82 denied relator’s request for documents. [Relator] presents no particularized need for the requested documents which, incidentally were earlier furnished relator’s appellate counsel.


text:
    STATE of Louisiana ex rel., Darryl TERRANCE v. Alvin V. OSER, Judge, Criminal District Court, Section “J”.
    No. 82-KH-2323.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Darryl Terrance, applying for writ of mandamus. Parish of Orleans. No. 275-363.

Denied.


text:
    STATE of Louisiana ex rel., Rickie Alexander BANE v. CLERK OF COURT, PARISH OF IBERIA, 16TH JUDICIAL DISTRICT COURT.
    No. 82-KH-2403.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Rickie Alexander Bane, applying for writ of mandamus. Parish of Iberia.

Denied. Moot.


text:
    STATE of Louisiana v. Jessie LAFAYETTE.
    No. 82-K-2442.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Jessie Lafayette, applying for writ of certiorari. Parish of East Baton Rouge. No. 9-80-384; First Circuit, Court of Appeal. No. 82-KW-0671.

Denied.

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


text:
    STATE of Louisiana ex rel. Roger Dale YATES v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS and Edwin A. Lombard.
    No. 82-KH-2191.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Roger Dale Yates, applying for writ of mandamus. Parish of Orleans. No. 248-553.

Granted. Trial court is ordered to rule within 14 days on relator’s 7/15/82 petition.


text:
    Alan V. ANDRIES v. GENERAL MOTORS CORPORATION, Delco Batteries Division, et al.
    No. 82-C-1953.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Alan V. Andries, applying for cer-tiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 417 So.2d 479.

Granted.


text:
    Betha Lou CULP v. BELDEN CORPORATION.
    No. 82-C-1968.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Betha Lou Culp, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. LaSalle Parish. 416 So.2d 1811.

Granted.


text:
    Armantine M. SMITH v. TRAVELERS INSURANCE COMPANY, et al.
    No. 82-C-2054.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Armantine M. Smith, applying for writ of certiorari or review Fourth Circuit, Court of Appeal, 418 So.2d 689. Orleans Parish.

Granted.


text:
    Davetta Caughey FARIA and Roy Dunscomb Gregory Caughey v. Karl Randall SMOAK, State Farm Mutual Automobile Insurance Company, and Casualty Reciprocal Exchange.
    No. 82-C-2083.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Davetta Caughey Faria and Roy Dunscomb Gregory Caughey, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Red River. No. 13783.

Granted.


text:
    STATE of Louisiana v. Edward LEWIS, Jr.
    No. 82-KH-2438.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Edward Lewis, Jr., applying for a remedial writ. Parish of Orleans. No. 290-155.

Granted. The matter is transferred to the Fourth Circuit Court of Appeal.


text:
    Raymond LEMIEUX, Jr. v. PRUDENTIAL INSURANCE COMPANY.
    No. 82-C-1720.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Raymond Lemieux, Jr., applying for reconsideration of denied writ of October 1, 1982. First Circuit Court of Appeal. Parish of East Baton Rouge. 420 So.2d 454.

Denied. The judgment is definitive. C.C.P. Art. 2167.


text:
    J. Charles COLLINS, Jr. v. Louis E. CHENEL, et al.
    No. 82-C-2033.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re J. Charles Collins, Jr., applying for writ of certiorari and review from First Circuit, Court of Appeals. St. Tammany Parish. 416 So.2d 945.

Writ denied.


text:
    Kay Fowler DEAN v. Douglas DEAN.
    No. 82-C-2037.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Douglas Dean, applying for writ of review from the Fourth Circuit, Court of Appeals. St. Bernard Parish. 416 So.2d 334.

Denied.


text:
    Adelaide L. LANDRY v. Adley LEBLANC.
    No. 82-C-2038.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Adley LeBlanc, applying for writ of review from the Third Circuit, Court of Appeal. St. Martin Parish. No. 8792.

Denied. Result correct.


text:
    John A. DURRETT v. STATE of Louisiana, et al. John A. DURRETT, Jr., et al. v. STATE of Louisiana, et al. FIREMAN’S FUND INSURANCE COMPANY v. STATE of Louisiana, et al. WRIGHT LEASING COMPANY v. STATE of Louisiana, et al.
    No. 82-C-2042.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re City of Baton Rouge, et al., applying for writ of certiorari from the First Circuit, Court of Appeal. Parish of East Baton Rouge. 416 So.2d 562.

Denied.


text:
    Hezzie HOLDEN, et al. v. CLEARVIEW DODGE SALES, INC. et al.
    No. 82-C-2051.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Fleetwood Enterprises, Inc., applying for writ of certiorari, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 416 So.2d 335.

Denied.

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


text:
    BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, et al. v. LOUISIANA COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 82-C-2056.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Board of Commissioners of the Port of New Orleans, et al, applying for writ of certiorari or review First Circuit, Court of Appeal. Parish of East Baton Rouge. 416 So.2d 231.

Denied.


text:
    Pete PENNINGTON v. F.G. SULLIVAN, Jr., Contractors, et al.
    No. 82-C-2063.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re F.G. Sullivan, Jr., applying for writ of certiorari or review First Circuit, Court of Appeal. Parish of East Baton Rouge. 416 So.2d 192.

Denied.


text:
    John DURRETT v. STATE of Louisiana, et al. John A. DURRETT, Jr., et al. v. STATE of Louisiana, et al. FIREMAN’S FUND INSURANCE COMPANY v. STATE of Louisiana, et al. WRIGHT LEASING COMPANY v. STATE of Louisiana, et al.
    No. 82-C-2064.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re State of Louisiana through the Department of Transportation and Development, applying for writ of certiorari, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 416 So.2d 562.

Denied.


text:
    TRANSCONTINENTAL GAS PIPE LINE CORPORATION v. James F. TERRELL, Jr., et al.
    No. 82-C-2069.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Transcontinental Gas Pipe Line Corp., applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 416 So.2d 571.

Writ denied.


text:
    MARYLAND CASUALTY COMPANY AND SOUTHERN EQUIPMENT, INC. v. WATSON MARINE REPAIR & CLEANING SERVICE, INC.
    No. 82-C-2070.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Maryland Casualty Company and Southern Equipment, Inc., applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 416 So.2d 194.

Denied

BLANCHE, J., would grant the writ.


text:
    Mary Lucy WILLIAMS v. DELTA HAVEN, INC.
    No. 82-C-2074.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Mary Lucy Williams, applying for writ of certiorari Second Circuit, Court of Appeal. Parish of Madison. No. 81-129.

Denied.


text:
    Hezzie HOLDEN, et ux. v. CLEARVIEW DODGE SALES, INC., et al.
    No. 82-C-2077.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Mr. and Mrs., Hezzie Holden, applying for writ of certiorari, Fourth Circuit, Court of Appeal. Parish of Orleans. 416 So.2d 335.

Denied.


text:
    Bobby Joseph GAUTHIER v. Sara Reneé Crifasi LOSAVIO, et al.
    No. 82-C-2078.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Sara Reneé Crifasi Losavio, applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 400 So.2d 921.

Denied.

MARCUS, J., would grant the writ.


text:
    Joseph Norris GRIFFIN v. D.B. LITTLEFIELD, et als.
    No. 82-C-2082.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Joseph N. Griffin, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 416 So.2d 198.

Denied.


text:
    STATE of Louisiana v. Marese TOOMER.
    No. 82-K-2086.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Marese Toomer, applying for writs of habeas corpus. Parish of Washington. No. 34935.

Denied.


text:
    SALES PURCHASE CORPORATION v. Edgar Clive PUCKETT, et al.
    No. 82-C-2087.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Sales Purchase Corporation, applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 417 So.2d 137.

Denied.

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


text:
    Tom Ed ROE v. Douglas D. SOMERSON and Nationwide Mutual Insurance Company (AKA Nationwide General Insurance Company & Nationwide Insurance Co.).
    No. 82-C-2088.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Tom Ed Roe, applying for writ of certiorari or review First Circuit, Court of Appeal. East Baton Rouge Parish. 419 So.2d 1249.

Denied.

LEMMON, J., would grant the writ.


text:
    WES-T-ERRE DEVELOPMENT CORPORATION v. The PARISH OF TERREBONNE, Through the POLICE JURY OF the PARISH OF TERREBONNE, Louisiana.
    No. 82-C-2090.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Wes-T-Erre Development Corp., applying for writ of certiorari, to the Court of Appeal, First Circuit. Parish of Terrebonne. 416 So.2d 209.

Denied.

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


text:
    John A. DURRETT v. STATE of Louisiana, et al. John A. DURRETT, Jr., et al. v. STATE of Louisiana, et al. FIREMAN’S FUND INSURANCE COMPANY v. STATE of Louisiana, et al. WRIGHT LEASING COMPANY v. STATE of Louisiana, et al.
    No. 82-C-2092.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Marjory Durrett, et al., applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 416 So.2d 562.

Denied.


text:
    STATE of Louisiana, ex rel., Leonard BARNES v. 39TH JUDICIAL DISTRICT COURT, DIVISION B.
    No. 82-KH-2454.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
   In re Leonard Barnes, applying for writs of certiorari, review, and mandamus. Parish of Vernon. No. 27881.

Denied.


text:
    Paul L. LOEWENWARTER v. Henry M. MORRIS, Superintendent of Police, New Orleans Police Department.
    No. 82-C-2559.
    Supreme Court of Louisiana.
    Oct. 22, 1982.
   In re Henry M. Morris, Superintendent of Police, New Orleans Police Department, applying for writs of certiorari and prohibition. Parish of Orleans, Civil District Court. Court of Appeal, Fourth Circuit. 420 So.2d 550.

Denied. The result is correct.


author: REDMANN, Chief Judge.

text:
    DECATUR-ST. LOUIS COMBINED EQUITY PROPERTIES, INC. VENTURE v. R. Clyde ABERCROMBIE et al.
    No. 12858.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1982.
    Rehearing Denied Nov. 19, 1982.
    James E. Stovall, Jackson & Stovall, New Orleans, for plaintiff-appellant.
    Frank J. D’Amico and Joseph V. Bologna, New Orleans, for defendants-appellees.
    Before REDMANN, C.J., and AUGUSTINE and CIACCIO, JJ.
   REDMANN, Chief Judge.

Three persons took title to an immovable. One of those three and a partnership in commendam sued the other two title-holders in a suit still pending for a declaratory judgment that the three had taken title for the partnership and that the partnership in truth owns the property. The partnership thereafter filed this possessory action, alleging that defendants had disturbed its possession in that they “refused to allow” the payment of rent to plaintiff by its tenant (a corporation) and they changed the door locks on the property. Plaintiff now appeals from a judgment dismissing this suit on an exception. We reverse.

The exceptions recited as their grounds lis pendens, improper cumulation of actions, res judicata, and no cause of action.

Lis pendens, La.C.C.P. 531, is inapplicable because the object of the two suits is not the same. One demands a declaration of ownership and the other demands restoration to possession. Res judicata, La. C.C. 2286, is a related ground, the distinction between the two grounds being only that in the first the suit is still pending and in the second it has been finally decided. See Mitchell v. Bertolla, 340 So.2d 287 (La.1976). There is no other similar preclusion device, such as the common law doctrine of judicial estoppel, in Louisiana. Mitchell; Doyle v. State Farm (Mut.) Ins. Co., 414 So.2d 763 (La.1982).

The grounds of improper cumulation and of no cause of action are both urged on the basis that C.C.P. 3657 prevents a plaintiff from maintaining both petitory and possessory actions. That legal premise may be sound, but plaintiff’s first action was not a petitory action under C.C.P. 3651 but a declaratory judgment action allowed under C.C.P. 3654. Plaintiff alleges it was in possession through its lessee and its first action was thus not by a claimant “who is not in possession,” C.C.P. 3651, and was therefore not a petitory action.

It was therefore error to maintain the • exception.

Reversed and remanded.


text:
    Sam CONLEY, Jr. v. LIBERTY MUTUAL INSURANCE COMPANY and Schwerman Trucking Company.
    No. 13163.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 30, 1982.
    Rehearing Denied Nov. 19, 1982.
    R. Ray Orrill, Jr., Victor A. Marsiglia, Jr., New Orleans, for plaintiff-appellee.
    Victor A. Dubuclet, III, Borrello & Huber, Metairie, for defendants-appellants.
    Before REDMANN,' C.J., and AUGUSTINE and CIACCIO, JJ.
   REDMANN, Chief Judge.

Defendant employer appeals from a judgment for workers’ compensation benefits, with penalties and attorney’s fees. Defendant argues that plaintiff’s injury was caused by his own intoxication and is therefore not compensable, La.R.S. 23:1081.

The question is whether the trial judge erred in concluding that defendant had proved neither plaintiff’s intoxication nor its causation of the accident. Defendant’s proof consists of the deposition of the Lafayette police officer who assisted in investigating the accident and who administered photoelectric intoximeter tests to plaintiff and the deposition of a pathologist concerning the implication of the test results. Plaintiff’s proof consists of his own testimony-.

We conclude that the resolution of our case is effectively guided by Parker v. Kroger’s, Inc., 394 So.2d 1178 (La.1981). The circumstances of our accident are somewhat comparable to those of Parker. There an employee drove, at 8:45 at night, through a barricade; our plaintiff drove, at 12:38 in the afternoon, in clear weather, into an area where construction blocked one lane of a two-lane interstate highway bridge. One factor present here but not in Parker was the involvement of a second vehicle. An automobile driver (who plaintiff testified was moving at the same 50-mph speed as plaintiff) moved from the lane that was blocked into plaintiff’s lane (plaintiff says that the automobile was only ten or 12 feet ahead of him at the time, and that it immediately applied its brakes for no obvious reason). Plaintiff applied his brakes, leaving skid marks for 132 feet (less the truck’s length?) before rear-ending the automobile and knocking it out of the travel lanes. Plaintiff’s truck continued to leave skid marks for a total of 222 feet from first application of its brakes (during only 142 feet of which did the front wheels leave skid marks); 129 feet after impact it struck the concrete median wall and continued another 156 feet, damaging 155 feet of “hurricane” fence atop that wall, thus travelling a total of 285 feet after impact.

Although our case does not have the concession by the driver of his earlier drinking and his falling asleep that Parker had, our case is perhaps stronger on the showing of intoxication. Parker noted a blood test showing 0.104% blood alcohol without, as far as the opinion shows, scientific verification of the accuracy of that test. Our case has a 0.25% blood alcohol level established by PEI test, verified by the police officer who was trained and certified to administer such tests and who discussed his procedure for standardizing the test both in general and in this case in great detail. We do not, however, have expert testimony on the calibration of the PEI machine itself from one qualified in calibration; we have only the officer’s testimony that calibration occurred no less often than every four months and that he verified that the machine had been calibrated within the previous four months and would not use the machine unless its tag showed calibration not over four months earlier.

Apparently the trial judge rejected the police officer’s PEI test results because of the defendant’s failure to offer proof by the expert who calibrated the machine to establish that it was properly calibrated at the time of the tests. That failure might be fatal to a criminal prosecution, where the standard of proof is proof beyond a reasonable doubt; see, e.g., State v. Graham, 360 So.2d 853 (La.1978). But the standard of proof in civil cases is not so strict; a civil litigant need only establish a fact as more probable than not; Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972). The police officer in our case showed by copies of his certificate and re-certifications that he was qualified to administer the PEI tests (and did not merely so testify, as was held insufficient in State v. Jones, 316 So.2d 100 (La.1975), for a criminal prosecution). He testified in meticulous detail as to his own use of the machine with standardized samples and provided a copy of his written report on the testing which included the adjustments of the machine required for proper evaluation of test results. We are obliged to conclude that the civil burden of proof was met, and that it is established as more probable than not that plaintiff had a blood alcohol level of 0.25% when measured about an hour and a half after the accident with no intervening consumption of alcohol. His blood alcohol level at the moment of the accident might have been somewhat less than that (if he had alcohol in his stomach not yet digested into his bloodstream) or more than that (if he last drank alcohol so long before the accident that it had all entered his bloodstream at that time and its then concentration had meanwhile been reduced by the normal bodily processes). Parker’s blood test also occurred an hour and a half after the accident, and it was held sufficient. We deem our PEI test sufficient to show that plaintiff had a blood alcohol level in the vicinity of 0.25%.

The expert pathologist testified that “100% of the population at that alcohol level would not be safe drivers”; “100% would show significant impairment of all faculties”; and some “normal” persons would be unconscious.

We therefore conclude that plaintiff was intoxicated at the time of the accident.

We also conclude, from the circumstances of the accident, that plaintiff’s intoxication more probably than not caused the accident. The alternative explanation,- that testified to by plaintiff, is that the automobile traveling at the same speed as plaintiff pulled in front of plaintiff when only ten to 12 feet ahead of him and began to brake. That explanation is not nearly as probable an explanation of the long braking and travel distances of plaintiff’s truck both before and after impact. The more probable explanation of this accident is plaintiff’s gross inattentiveness to the road conditions ahead, resulting in his failure to appreciate the slow speed of the automobile (it was knocked only 33 feet or so, leaving no skid marks) ahead of him by far more than ten or 12 feet. And the most probable explanation of plaintiff’s inattentiveness and failure to appreciate the conditions ahead is his intoxication. Parker indeed may have been a ease in which intoxication was the only reasonably probable explanation of the accident, but ours is a case in which intoxication is a more probable cause of the accident than the cause alleged by plaintiff, and that is all that the burden of proof in civil cases requires.

Reversed; dismissed.


author: FORET, Judge. STOKER, Judge.

text:
    Nora Jean Hamilton CHAUDOIR, Plaintiff-Appellant, v. Richard E. CHAUDOIR, Defendant-Appellee.
    No. 82-308.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 13, 1982.
    On Rehearing Oct. 25, 1982.

      MacAllynn J. Achee, Baton Rouge, for plaintiff-appellant.
    Downs & Downs, James C. Downs, J. Marc Lampert, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   FORET, Judge.

MOTION TO DISMISS

The defendant-appellee, Richard E. Chau-doir, moves to dismiss the appeal of the plaintiff-appellant, Nora Jean Hamilton Chaudoir, on the grounds that the appellant’s appeal was not timely taken. We dismiss the appeal.

The facts succinctly stated are as follows:

Nora Jean Hamilton Chaudoir, plaintiff-appellant, filed a rule against Richard E. Chaudoir, defendant-appellee, for past due alimony and child support and for an increase in amount of child support fixed by a previous judgment signed July 2, 1975. A rule was filed by Richard E. Chaudoir against Nora Jean Hamilton Chaudoir to terminate alimony fixed by the July 2, 1975 judgment and to fix certain visitation rights with the minor child, Elizabeth Jean Chaudoir. Both rules were tried together and a joint judgment was rendered on August 7,1981; the judgment was signed November 30, 1981 and notice of judgment mailed the same day. The plaintiff-appellant filed a motion and order for appeal on January 29, 1982.

Applicable here are LSA-C.C.P. arts. 3942-3943, as follows:

Art. 3942. Appeal from judgment granting or refusing annulment, separation, or divorce
An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(1)-{3).
Such an appeal shall suspend the execution of the judgment in so far as the judgment relates to the annulment, separation, or divorce.
Art. 3943. Appeal from judgment awarding custody or alimony
An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.

It is clear from a reading of the above articles that plaintiff-appellant’s appeal was not timely perfected. The judgment was signed November 30, 1981 and no notice of judgment was required or requested. Therefore, the delays for filing a motion for a new trial began to run on the next day, November 81, 1981, and expired on the seventh day thereafter, exclusive of legal holidays, or on December 9, 1981. The plaintiff-appellant did not apply for a new trial, therefore the appeal delays began to run on December 10, 1981. The last day on which plaintiff-appellant could have timely appealed was January 8, 1982. The appeal is therefore dismissed at defendant-appellant’s costs.

APPEAL DISMISSED.

ON REHEARING

STOKER, Judge.

This matter came up on appeal from a judgment on rule granting the appellant an award of $9,300.00 as unpaid alimony and child support, increasing child support to $350.00 per month, terminating alimony, and granting the appellee visitation rights. The judgment was signed on 30 November 1981. The appellant filed a motion and order for appeal on 29 January 1982, 59 days following the notice of the signing of the judgment by the trial court.

The appellee moved to dismiss the appeal on the grounds that the appeal was not perfected within the delays enumerated by Code of Civil Procedure Articles 3942 and 3943. The court, finding the appeal was filed more than 30 days after the delay for requesting a new trial, dismissed the appeal.

The appellant subsequently submitted a petition for rehearing alleging that the court erred in the dismissal of the appeal. The appellant alleges that an appeal from a judgment granting past due alimony and child support is not governed by the provisions of C.C.P. Articles 3942 and 3943. We agree.

In our initial review of this appeal, we failed to recognize that one of the issues on appeal was the trial court’s failure to grant legal interest on the award of past due alimony and child support.

“A rule to fix past due alimony is not a ‘judgment awarding ... alimony’ within the contemplation of LSA-C.C.P. Art. 3943.” Mertens v. Mertens, 308 So.2d 506 (La.App. 3rd Cir.1975).

The appellant timely filed the appeal under the provisions of C.C.P. Art. 2087 which provides a sixty day limitation. Therefore, the appeal from that portion of the judgment not awarding legal interest on the past due alimony and child support is hereby reinstated. The dismissal as to all other elements of the appeal is affirmed at appellant’s cost.

APPEAL DISMISSED IN PART, MAINTAINED IN PART.


author: GULOTTA, Judge.

text:
    Elise M. BELLARD v. DEPARTMENT OF STREETS.
    No. 13130.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Nov. 19, 1982.

      Dorsey & Marks, Steve V. Barbre, New Orleans, for plaintiff-appellant.
    Charles J. Willoughby, Asst. City Atty., Salvador Anzelmo, City Atty., New Orleans, for defendant-appellee.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   GULOTTA, Judge.

Plaintiff seeks a reversal of the decision of the New Orleans Civil Service Commission (the Commission) dismissing her appeal from her termination of employment with the Department of Streets. Finding no error in the Commission’s conclusion that plaintiff was a probationary employee when discharged and thus not entitled to an appeal before the Commission, we affirm.

Plaintiff began employment as a probationary employee on January 19,1981 under a six month “working test” extending until July 19,1981. On July 17, two days prior to the expiration of the probationary period, plaintiff’s supervisor told her that she was terminated from her position and handed her a letter of termination, dated July 13, from the Director of Streets, dismissing her as of the close of business on July 17. Although the copy of the letter handed to plaintiff was unsigned, she received the signed original by Certified Mail on July 21, 1981.

On July 20, after oral dismissal by her supervisor, but before receipt of the certified letter, plaintiff notified the Director of Personnel of the City Civil Service that she wished to appeal the July 17 termination. Thereafter, the City filed an exception of no right or cause of action on the ground plaintiff was a probationary employee when terminated and not entitled to an appeal before the Commission. After hearing the testimony of plaintiff and her supervisor concerning the circumstances of plaintiff’s dismissal, and further argument by counsel, the Commission dismissed plaintiff’s appeal.

Plaintiff’s argument in this court is twofold. She claims that she was not a probationary employee at the time of her dismissal since she did not receive a signed letter of termination until after July 19,1981, and that the Department of Streets failed to prove the original letter of termination was signed by the Director during her probationary period. Alternatively, she contends that, even if she were a probationary employee, LSA-R.S. 33:2417 entitles her to receive written notice of the proposed termination ten days prior to the expiration of the working test period. She argues that failure to notify her properly was tantamount to a recognition that her work was satisfactory and invalidated her dismissal.

We find no merit to plaintiff’s contention that she was not a probationary employee when terminated. It is undisputed that plaintiff’s immediate supervisor told her she was terminated on July 17, and gave her copy of the letter of termination. Significantly, in the written request for appeal, on July 20, 1981, plaintiff recognized that she had been terminated on July 17.

According to Rule VII Sec. 1.1 of the City Civil Service Rules a probationary employee may be removed for cause at “any time during his working test period, after the first two months”. The appointing authority must “forthwith” report to the Director and the employee the reason for the removal. In our case, plaintiff’s receipt of the letter of termination setting forth the reasons for dismissal within four days of the oral notification to her during the probationary period constituted compliance with the rule. Under these circumstances, we conclude that a showing was made that plaintiff was dismissed and properly notified of her termination during her probationary period.

We likewise find no merit to plaintiff’s second contention, that she is entitled to a written notice of her proposed termination ten days prior to the expiration of her working test period as provided for in R.S. 33:2417. This statute has been superseded by LSA-Const. 1974, Art. 10, Sec. 10(A)(1), which provides, in pertinent part:

Sec. 10. (A) Rules. (1) Powers. Each commission is vested with broad and general rule-making and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established.

See also LSA-Const. Art. 10, Sec. 10(A)(4), which provides that Civil Service rules shall have the effect of law.

The provision in the City Civil Service Rules for a ten-day notification period prior to the expiration of a working test period concerns extension of the probationary period. The City Civil Service Rules clearly provide that a probationary employee may be removed during his working test period for cause. Other than the requirement that the authority “forthwith” report to the employee of the reason for his removal, which has been satisfied in our case, we find no ten-day notice requirement as provided in LSA-R.S. 33:2417. Insofar as this statute, which predated the Constitution of 1974, conflicts with the Constitution and Civil Service Rules adopted pursuant to the Constitution, the latter supersedes the statute and prevails.

Having so concluded, we find no error in the Commission’s conclusion that plaintiff was removed during her probationary period and was notified timely of the reasons for her removal. Plaintiff was not entitled to an appeal before the commission.

The judgment is affirmed.

AFFIRMED.

      . LSA-R.S. 33:2417 provides, in pertinent part: Ten days prior to the expiration of an employee’s working test period, the appointing authority shall notify the director in writing whether the services of the employee have been satisfactory and whether he will continue the employee in his position. A copy of the notice shall be given to the employee ten days prior to the expiration of his working test period. Upon approval by the director of a favorable report, the appointment of the employee shall be complete at the expiration of the working test period. Failure by an appointing authority to give the ten days’ notice to the director and a copy thereof to the employee shall have the same force and effect as a satisfactory report.

      . Rule VII, Sec. 1.1 of the City Civil Service Rules, provides in pertinent part: “At any time during his working test period, after the first two months thereof, the appointing authority may remove an employee if, in the opinion of the appointing authority, the working test indicates that (1) the employee is unable or unwilling to perform his duties satisfactorily, or (2) his habits and dependability do not merit his continuance in the service; provided not more than three (3) employees shall be removed successively from the same position. Upon the removal, the appointing authority shall forthwith report to the Director and to the employee removed his action and the reason therefor”.

      . Rule VII, Sect. 1.3 & 1.4 provide:
      1.3 Extension of time. The director may, upon the written request of an appointing authority, and a copy to the employee made not later than ten (10) days before the expiration of a working test period, extend the duration of such working test. No extension shall be allowed which would make the total working test period longer than one year.
      1.4 Failure by an appointing authority to give the ten (10) days prior written notice to the Director and a copy thereof of the employee shall have the same force and effect as a satisfactory report.

      . LSA-Const. Art. 14, § 18 provides:
      § 18. Existing Laws
      Section 18. (A) Retention. Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution, shall remain in effect until altered or repealed or until they expire by their own limitation.
      (B) Expiration of Conflicting Law. Laws which are in conflict with this constitution shall cease upon its effective date.
      See also the well-written, well-considered opinion of the Civil Service Commission.
      BY THE COMMISSION: The commission rules that the statute cited by the appellant, R.S. 33:2417, does not shorten the working test period by ten days according to its terms, because it is clear under the statute that an employer may still dismiss during the full six months, notwithstanding the fact that he may or may not have submitted an unsatisfactory report. In addition, the Commission holds that the statute was passed in 1944 prior to the effective date of the Louisiana Constitution of 1974, the Commission’s Rules preempt the effect of the statute in this regard, particularly Rule VII, Section 1.3 and 1.4. Under the Civil Service Rules, failure to give notice ten days prior to the termination of the working test period has no effect on the working test period as contended by the appellant.


author: SCHOTT, Judge.

text:
    SUCCESSION OF Anita Carriere ANCAR.
    No. 13157.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Nov. 19, 1982.
    J. Courtney Wilson, New Orleans, for plaintiff-appellant.
    Louis A. Heyd, Jr., New Orleans, for respondents-appellees Iona Morris and Louis A. Heyd, Jr.
    Before SCHOTT, GARRISON and WILLIAMS, JJ.
   SCHOTT, Judge.

Mrs. Joyce Anear Fauria, in her capacity as administratrix of the succession of her mother, obtained a temporary restraining order on September 24, 1980, against Iona Morris, also a daughter of decedent, preventing her from transacting any business on her individual bank account. She also filed a rule for a preliminary injunction which was set for October 3. On the day of the hearing Morris filed a motion to dissolve the restraining order and for damages and attorney’s fees. The trial court dissolved the restraining order and awarded Morris damages of $300 and attorney’s fees of $300. In this appeal from that judgment Pauria concedes that the restraining order was wrongfully obtained and issued, but she contends that the record does not support an award for damages or attorney’s fees because no evidence was taken at the hearing. Alternatively, she argues that the amounts of the damages and attorney’s fees are excessive.

LSA C.C.P. Art. 3608 provides as follows: “The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.”

This article vests the trial judge with much discretion in allowing some damages to Morris simply by virtue of the fact that she was deprived of access to her bank account for almost ten days. Pauria concedes this, stating in her brief: “The wrongful issuance of restraining order is only prima facie evidence of damages and attorney’s fees.” However, she complains that evidence should have been taken so that she could rebut this presumption. There is no indication in the record that the trial judge curtailed Fauria’s right to present evidence at the hearing. The judgment shows that her attorney was present in court so that she had the opportunity to subpoena and call witnesses at the hearing had she wished to do so. The damages allowed Morris were nominal and were within the discretion of the trial court to compensate her for the inconvenience and embarrassment she suffered.

As to the attorney’s fees, Morris’ entitlement to them is likewise based upon the discretion vested in the trial judge under Art. 3608. Although she did not offer any evidence to establish the proper amount of the attorney’s fees, the trial judge, in such a case, is able to estimate the value of such services within the discretion vested in him by Art. 3608. Craddock v. Crowe, 388 So.2d 69 (La.App. 1st Cir.1980).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Bobby Venard SCHAEFFER v. Steve K. DUVALL and Vinson Detective Agency, Inc.
    No. 13093.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Nov. 19, 1982.

      Joel P. Loeffelholz, Jacobs, Loeffelholz & Trestman, New Orleans, for plaintiff-defendant in reconvention-appellant.
    Clare V. Holden, Robert H. Sarpy, Jr., Jones, Walker, Waechter, Poitevent, Carr-ere & Denegre, New Orleans, for defendant third party plaintiff-appellee.
    Before BARRY, BYRNES and CIACCIO, JJ.
   BARRY, Judge.

Plaintiff Bobby Schaeffer appeals the dismissal of his lawsuit for personal injuries sustained from a gunshot in a tavern on Sunday, November 10, 1974 shortly after 9:00 a.m. Steve Duvall, co-defendant herein, an armed security guard employed by co-defendant Vinson Detective Agency, had completed an 11:00 p.m. to 7:00 a.m. shift and after waiting 45 minutes for a bus decided to walk home. Duvall passed a tavern across the street from his house and Percy Holloway, the owner, called to Duvall to go in as he had something to tell Duvall. Duvall entered the bar still wearing his Vinson uniform and a .38 caliber pistol on his hip. Shortly thereafter the plaintiff, Bobby Schaeffer, entered the bar. At this point versions of the incident differ.

Plaintiff testified he and Duvall got into an argument which “cooled down” and Schaeffer ordered a drink. Duvall, who was drinking a beer at the opposite end of the bar, walked behind Schaeffer “(a)nd Mr. Duvall say [sic], ‘What did you say?’ and I (Schaeffer) turned off the stool and next thing I knew he pulled his pistol out with his right hand and he put — he changed hand [sic], he put the pistol in his left hand and he fired” from approximately 10 feet.

Defendants, on the other hand, contend Schaeffer entered the bar and directed extremely abusive language toward Duvall’s old age and his uniform whereupon Duvall, before drinking any beer, decided to leave. Duvall testified as he walked past Schaef-fer, Schaeffer lunged toward him grabbing for his gun. A struggle ensued and the gun discharged, striking Schaeffer in the abdomen.

Plaintiff sued Duvall, Vinson Detective Agency and Percy Holloway. Duvall reconvened against Schaeffer and Vinson third partied Duvall. The suit against Holloway was dismissed.

The Trial Judge rejected plaintiff’s claim against Vinson reasoning that Duvall was on his way home and had entered the bar “purely for his own gratification and in contravention of the rules set down by his employer.” The lower court found Duvall negligent because he violated rules governing private security guards prescribed by the New Orleans Police Department and his negligence was a “cause in fact” of the altercation. However, adopting defendants’ version of the facts, the Trial Judge concluded Schaeffer was also at fault and dismissed his suit and all incidental demands. The Reasons for Judgment do not address the question of Vinson’s alleged negligent hiring and Article 2317 liability.

Plaintiff appeals urging Vinson’s liability based 1) on vicarious liability for the negligent and/or intentional tort of its employee, Duvall, and 2) on strict liability for placing a dangerous instrumentality in the hands of its employee without adequate screening, training or follow-up. Duvall’s negligence is not contested.

VICARIOUS LIABILITY

Vinson argues that since Duvall had departed his employment for more than two hours he clearly was not acting in the course and scope of his employment and there is no liability for the employee’s torts. The security company also asserts, arguen-do, if the employment relationship still existed after Duvall finished work, his deviation to the bar was in violation of Vinson’s strict rules and for Duvall’s own gratification which relieved Vinson of liability. Ruth v. Royal Indemnity Co., 83 So.2d 520 (La.App. 2d Cir.1955).

Vicarious liability in Louisiana charges the employer with responsibility for his employee’s misconduct if, at the time of the act, the employee is acting within the scope of his employment, i.e. “in the exercise of the functions in which ... employed.” LSA-C.C. Art. 2320. The fact that an employee’s conduct is in violation of the employer’s express rules is not, of itself, conclusive on the issue of scope of employment, but depends on the particular facts and circumstances of each case. If the conduct is closely related in time, place and causation to his employment duties, the resultant harm is attributable to the employer’s business which is liable for damages. Conduct motivated by purely personal considerations and extraneous to the employer’s interest is not imputable to the employer. The purpose of imposing vicarious liability is not served when the conduct occurs after the employee has long “abandoned or completed the employment and engages in a frolic which is in no manner related to service of the master.” Normand v. City of New Orleans, 363 So.2d 1220 at p. 1223 (La.App. 4th Cir.1978), writ denied 366 So.2d 573 (La.1979). See also LaBrane v. Lewis, 292 So.2d 216 (La.1974), Cain v. Doe, 378 So.2d 549 (La.App. 4th Cir.1979).

The trial court found Duvall entered the bar for his own gratification unrelated to the service of his employer, a conclusion we find clearly supported by the record. The evidence shows that Duvall completed his shift at 7:00 a.m. and waited approximately 45 minutes for a bus before walking home. Apparently the trip home took approximately one hour as the record shows the shooting occurred sometime after 9:00 a.m. Therefore, the “time” of the incident was more than two hours after his employment duties ceased; the “place” of the occurrence was far removed from his work place; and the “causation” or motive for Duvall’s presence in the barroom was purely personal and unrelated to his employment duties. Under these circumstances there is no legal justification to conclude that plaintiff’s injuries were caused by Du-vall’s acting in the course and scope of employment and accordingly there is no vicarious liability against the employer, Vinson.

ARTICLE 2317 STRICT LIABILITY

Plaintiff also urges strict liability on the employer under LSA-C.C. Art. 2317 predicated on Vinson’s deficient employment practices in screening, training and supervising its armed guards. Plaintiff asserts Vinson was .negligent in its hiring and training practices which were “in fact the real gut reason that this incident occurred.” He argues because Vinson placed a dangerous instrumentality in the hands of its employee it should be held to a higher duty of care and is responsible for this employee’s actions whether or not the act occurred in the course and scope of the employment. Citing Loescher v. Parr, 324 So.2d 441 (La.1975), Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971) and Canter v. Koehring Co., 283 So.2d 716 (La.1973), he urges the basis of Vinson’s fault is its “failure to prevent the person for whom he is responsible from causing such unreasonable risk of injuries to others.” Plaintiff contends Vinson had an “extraordinary duty” to be certain Duvall went directly home with his firearm after leaving work.

Vinson maintains its employment practices at the time of the incident were competent and not in violation of any statutes or ordinances pertaining to private security companies. Vinson stresses, however, under our law and jurisprudence, its hiring and training practices are irrelevant because the alleged tort occurred long after its employee left work and was inside a tavern which is clearly beyond and unrelated to any employment function. Vinson submits in the alternative, if “strict liability” suggested by plaintiff is appropriate, it takes the position that plaintiff’s conduct amounted to contributory negligence or “victim fault” barring his recovery. Dorry v. LaFleur, 399 So.2d 559 (La.1981), Stewart v. Sam Wallace Indus. Co., 409 So.2d 335 (La.App. 1st Cir.1981), writ denied 413 So.2d 497 (La.1982).

Admittedly, Vinson hires personnel with minimal qualifications, an apparent custom in the security business. Company training of its guards, including use of a gun, is nominal. Compounding this is the lack of governmental supervision at any level setting forth minimum criteria for the hiring, training and supervision of “special officers” allowed to carry firearms.

Loescher, Langlois and Canter, supra, relied on by plaintiff, are inapposite to these facts as those cases are based on a finding that the person/object causing the tort was, at the time of occurrence, under the care, supervision or control of the person or entity sought to be held responsible. At the time of this incident the employee was far removed from the control of his employer and under our present jurisprudence strict liability is not applicable.

However, even if strict liability were applicable, we feel it is negated by plaintiff’s conduct which was a substantial cause, if not the provocation, of the harm-producing incident. Stewart, supra. Whether the conduct be labeled “contributory negligence” or “victim fault” is of no moment since the cause here is more than sufficient to be a defense to Article 2317 liability.

The Trial Judge found “the plaintiff Bobby Schaeffer is at fault also in that he grabbed the defendant Duvall and attempted to wrest the gun from the holster and that the injuries were sustained in fighting for control of the gun.” On appeal, plaintiff maintains this finding was erroneous, that Duvall walked behind him, pulled out his gun and shot plaintiff from a distance of 10 feet. Plaintiff relies on the testimony of the investigating officer (who related statements made at the scene to him by the now deceased Percy Holloway) and Dr. Roy O’Connell, plaintiff’s attending surgeon, who opined the gun was fired from more than two feet. Defendants rest on the testimony of Duvall, Holloway’s deposition and his testimony at the criminal trial.

Dr. O’Connell candidly admitted he was not a ballistics expert and stressed his opinion on how far away the shot was fired was founded on an assumption the revolver was a “well-functioning .38.” He pointed out that no one mentioned the ballistics of this particular gun: the mass or speed of this missile. He also conceded if the bullet passed through several layers of clothing it could affect his conclusions. Based on this testimony we do not find Dr. O’Connell’s opinion persuasive to plaintiff’s cause.

This case involved findings of facts based upon conflicting testimony of witnesses. We are ever cognizant that on appellate review factual determinations of the Trial Judge are not to be disturbed in the absence of manifest error. This rule is particularly applicable here because the testimony is difficult, if not impossible, to reconcile. The Trial Judge’s responsibility is to evaluate the credibility of witnesses, Pounds v. Ecoff Trucking, Inc., 365 So.2d 934 (La.App. 4th Cir.1978), and we find no basis to disagree with his conclusions.

Accordingly, the judgment of the trial court is affirmed with plaintiff assessed all costs.

AFFIRMED.

      . II. E. Policy on use of firearms

      5. It shall be unlawful for a special officer (unless so assigned) to carry a dangerous weapon, concealed or otherwise, into any public hall, tavern, picnic grounds, place for shows or exhibitions or house or other place of public entertainment or amusement.
      VI. Restrictions
      C. A special officer cannot leave an assignment during the hours detailed. After the detail is completed, his deputized power of arrest will cease and he must go directly home and remove his uniform and weapon. He must not deviate from a direct route from the one place to the other.

      . The police received a call at 9:29 a.m., minutes after the accident.

      . LSA-C.C. Art. 2317 provides in part:
      “We are responsible not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable or of things which we have in our custody .... ”

      . Sergeant Ted Brister of the New Orleans Police Department, plaintiffs expert, testified there are no legal requirements imposed on private security companies with regard to hiring, training or following of armed guards. And, as far as he knows, the training, etc., was left completely to the individual security agency.

      . Duvall was found not guilty of aggravated battery in the Criminal District Court for the Parish of Orleans.