author:
CALOGERO, Justice.
     PER CURIAM.

text:
    STATE of Louisiana v. Gregory FALCONE et al.
    No. 65300.
    Supreme Court of Louisiana.
    April 7, 1980.
    Rehearing Denied June 6, 1980.

      Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, Edwin Marger, Atlanta, Ga., for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Research and Appeals Div., for plaintiff-appellee.
   CALOGERO, Justice.

The principal issue presented by this appeal is whether the prosecution of defendants in the instant case is barred, and should have been dismissed before trial, by their prior conviction of possession of marijuana with intent to distribute and conspiracy to possess marijuana with intent to distribute in another parish. Defendants’ pre-trial motion to quash the indictment on the basis of double jeopardy was denied. Defendants were then tried and convicted of possession of marijuana with intent to distribute.

On February 22, 1977 defendants Steven Lukefahr, Gregory Falcone, and Joseph Trotta were arrested for possession of marijuana with intent to distribute, a violation of R.S. 40:966(A)(1). A total of seven persons were arrested on that date in three different parishes relating to a single marijuana distribution operation. On May 16, 1977 a bill of information was filed in Livingston Parish charging the three defendants and others with possession of marijuana with intent to distribute. On November 9, 1977 defendants herein entered pleas of guilty to an amended bill of information charging them with possession of marijuana with intent to distribute and conspiracy to possess with intent to distribute. Meanwhile, on September 17, 1977 defendants had been charged in these proceedings in Washington Parish, with possession of marijuana with intent to distribute. On March 7, 1978 defendants were tried in Washington Parish and found guilty as charged. Defendant Lukefahr was sentenced to eight years at hard labor and defendants Falcone and Trotta each to six years at hard labor. Each defendant was also fined $15,000. Defendants now appeal the Washington Parish convictions relying on sixteen assignments of error grouped into nine arguments. Because we find merit in their argument concerning double jeopardy, we reverse the convictions and sentences.

Before trial defendant filed a motion to quash the indictments in this Washington Parish prosecution on the ground that their convictions in Livingston Parish of possession of marijuana with intent to distribute bar their prosecution in Washington Parish for the present offense. Defendants argue that their convictions in Livingston Parish were for one continuous course of conduct which involved the simultaneous possession throughout two parishes of parcels of an original single source import shipment of marijuana and that, therefore, the prosecution in Washington Parish placed them in jeopardy a second time for conduct which had constituted part of that for which already convicted in Livingston Parish.

At the hearing on the motion to quash officers involved in the investigation testified that in the middle of April of 1976 a “loose” surveillance began on three farms located in Livingston, Washington, and Tangipahoa Parishes for suspected drug smuggling activities. Because of increased activity on and between the farms on February 21, 1977 the surveillance was increased shortly before midnight. In the early morning hours of February 22 officers observed a blue refrigerated van leave the Livingston Parish farm and drive to the farm in Washington Parish. At the Washington Parish farm, officers observed a brown pickup which had been seen on the Livingston Parish property, and an eighteen wheel truck. Five individuals were observed moving constantly between the three vehicles, apparently loading and/or unloading what appeared to be marijuana. The blue van then left the farm and proceeded on Highway 16. The eighteen wheeler and the brown pickup driven by defendant Lukefahr, and with Falcone and Trotta as passengers, followed shortly thereafter. The blue van was stopped by officers and searched, with officers discovering 3800 pounds of marijuana. The brown pickup was also stopped. Officers found 9.1 pounds of marijuana in the back of the open vehicle. Defendants were then arrested. Shortly after the arrests, officers obtained a warrant to search the Livingston Parish farm where they found approximately 32,000 pounds of marijuana. The Washington Parish and Livingston Parish prosecutions were thereafter instituted.

After hearing testimony on the motion to quash in this Washington Parish prosecution, the trial court found that although there had been an attempt to show that the marijuana discovered in Washington Parish was once a part of the larger quantity found in Livingston Parish, there was no evidence of this and concluded that the Washington Parish marijuana came from a source unknown. The court concluded, however, that even if the marijuana in Washington Parish was once part of the marijuana in Livingston, once it was separated and carried into Washington Parish, possession if it was a complete offense chargeable separately as such.

Article I § 15 of the Louisiana Constitution of 1974 and the Fifth and Fourteenth Amendments of the United States Constitution prohibit placing a person in jeopardy twice for the same offense. “Double jeopardy” in Louisiana is defined in La.Code Cr.Pr. art. 596 as follows:

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

The Official Revision Comment to La. Code Cr.Pr. art. 596 explains the need for the inclusion of subpart 2 in the article:

“Clause (2) of the above provision [Article 596] is necessary to prevent multiple prosecutions for continuous offenses. For example, possession of stolen goods or narcotics may continue over a long period of time and may involve more than one object. Yet, obviously, there should be only one prosecution for what is in effect one criminal course of conduct.”

An examination of the record in the prosecution of the defendants in Livingston Parish makes it clear that defendants were charged in that parish with a continuous offense which involved possession and transportation of marijuana throughout several parishes. The amended bill of information to which the defendants pled guilty charged that defendants did

“have in their possession with intent to distribute a controlled dangerous substance, to wit: MARIJUANA, which offense involved possession and transportation of marijuana through several parishes including the Parish of Livingston each part of a continuous offense, in violation of La.R.S. 40:966.”

and Count II, that defendants did

“conspire to possess with intent to distribute a controlled dangerous substance, to wit: MARIJUANA, which conspiracy was part of a continuous offense throughout several parishes, including Livingston Parish, in violation of La.R.S. 40:979.”

The state’s answers to the defendants’ motion for a bill of particulars filed in Livingston Parish on July 19,1977 also indicates that a continuous offense in both Livingston and Washington Parishes was the basis for the charge and that the Livingston prosecution encompassed the marijuana possessed by defendants in both parishes. To defendants’ request for the names of the persons who observed defendants commit the charged offense, the state named officers who observed defendants “Lukefahr [David?] and Stout” and responded that as to “all other defendants [presumably referring to, among others, Steven Lukefahr and his two co-defendants herein],” “they will be tied into the case through the overall scheme which had to do with Washington Parish farms, Tangipahoa farms, and Livingston Parish farms.” In response to defendants’ question as to whether any physical evidence was seized from defendants, the state answered that evidence was seized in both Livingston and Washington Parishes. Additionally when asked what the exact quantities were that were seized, the state’s answer included the substantial amounts of marijuana that were seized in Washington Parish.

It seems clear from the record of the prosecution of defendants in Livingston Parish that the state charged them with a continuous offense throughout the several parishes which involved an overall scheme of possession of marijuana with intent to distribute. Furthermore the state’s election to prosecute defendants in this manner was logical based on the facts of the case. At the hearing on the motion to quash Drug Enforcement Agent Larry Carver testified that it was the conclusion of the DEA officials who participated in the investigation that the marijuana seized in Livingston, Washington, and Tangipahoa Parishes was all part of one large cache brought into the area for distribution. He testified that the marijuana seized in Livingston Parish was packaged basically the same as all of the other marijuana found in the other parishes. Officer Thomasson of the Louisiana State Police also testified that it was his conclusion that all of the marijuana seized had been obtained from the same source.

Based on the record of the prosecution in Livingston Parish we conclude that the state has already prosecuted defendants in Livingston Parish for the marijuana possession in Washington Parish as part of the charge in Livingston Parish. The documents in that prosecution indicate that the state chose to include the possession in both Washington and Livingston Parishes in the charge. And while we do not reach the issue of whether the state might have been able to prosecute these defendants for a separate chargeable offense in Washington Parish had the Livingston prosecution not. included the marijuana possessed in Washington Parish, the state, having prosecuted defendants in Livingston Parish for marijuana possessed in both parishes, can not now prosecute defendants for possession of that part of the marijuana in Washington Parish.

One additional issue must be addressed in this appeal. Shortly after this case was scheduled for oral argument, the state filed a motion to stay or dismiss the appeal on the grounds that the defendants had “skipped bail” and were fugitives from justice. The state argued that because defendants chose to “flaunt the judicial process” they ought not be afforded the benefits of an appeal.

We have determined to consider the defendants’ appeal notwithstanding the fact that they are fugitives from justice because the law in this area is settled. Former R.S. 15:548 provided that “if an appellant be a fugitive from justice on the return day or the day fixed for the hearing of his appeal, the appeal will be dismissed.” In the new Code of Criminal Procedure effective January 1,1967 there is no comparable provision. The Official Revision Comment under La. Code Cr.Pro. art. 919 explains the omission of the provision as follows:

“Former R.S. 15:548 provided that if the appellant was a fugitive from justice on the return day or the day fixed for hearing on this appeal, the appeal would be dismissed. The provision is omitted from this Code, because it is unfair to the defendant. For example, if a man appealed from a death sentence and he escapes, under the provisions of former R.S. 15:548, the effect is to make the escape a capital offense, since he loses his right to appeal. Furthermore, the more frightened a convicted defendant is, the more likely he is to attempt to escape, and he should not be denied his right to an appeal because of such circumstances.”

And in State v. Lampkin, 253 La. 337, 218 So.2d 289 (1969) this Court reviewing this very issue determined that despite the fact that a defendant is a fugitive at the time of his appeal, the appeal should be considered.

Decree

For the foregoing reasons the convictions and sentences of defendants are reversed and the charges herein ordered dismissed.

REVERSED; CHARGES ORDERED DISMISSED.

BLANCHE, J., dissents.

Upon Application for Rehearing

PER CURIAM.

In an application for rehearing the state argues that under State v. Sawyer, 220 La. 932, 57 So.2d 899 (1952), Washington Parish had exclusive jurisdiction over the continuous offense committed in Livingston, Washington, and Tangipahoa Parishes because of defendants’ arrest in Washington Parish. The state argues that because exclusive jurisdiction was in Washington Parish, the prosecution in Livingston Parish is not a bar to further prosecution in Washington under double jeopardy principles.

State v. Sawyer, whatever its merit, is distinguishable from the instant case. In Sawyer the Court relied upon former R.S. 15:78 to find that arrest of a defendant vests exclusive jurisdiction in that parish. In the present Code of Criminal Procedure the comparable provision (see West’s concordance table) is Article 315 which provides as follows:

“Art. 315 Authority to fix bail
The following magistrates, throughout their several territory jurisdictions, shall have authority to fix bail:
(1) District courts having criminal jurisdiction, in all cases;
(2) City or parish courts having criminal jurisdiction, in cases not capital;
(3) Mayor’s courts and traffic courts in criminal cases within their trial jurisdiction;
(4) Juvenile and family courts in criminal cases within their trial jurisdiction; and
(5) Justices of the peace in cases not capital or necessarily punishable at hard labor.”

The purpose of Article 315 is obviously to give magistrates and judges the authority to fix bail within their respective jurisdictions; the statute does not confer jurisdiction for the purposes of prosecution or make the jurisdiction in which a defendant is arrested the exclusive jurisdiction for prosecution.

Accordingly the state’s application for rehearing is denied.

LEMMON,' J., not participating.

DENNIS and BLANCHE, JJ., would grant rehearing.

       Chief Judge Paul B. Landry, Jr., retired, participated in this decision as an Associate Justice Ad Hoc.

      . The initial bill filed in Livingston Parish charged David Lukefahr, Steven Lukefahr, Thomas Lukefahr, John Shields, Paul Stout, Joseph Trotta, and Gregory Falcone as defendants. The bill was later amended to delete David and Thomas Lukefahr, and Paul Stout as defendants.

      . This truck was driven by defendant’s brother, Thomas Lukefahr. Thomas was convicted of possession of marijuana with intent to distribute in a separate Washington Parish prosecution. His conviction was affirmed by this Court at 363 So.2d 661 (La.1978).

      . The original bill of information filed against defendants charged that they did “have in their possession with intent to distribute a controlled dangerous substance, to wit: MARIJUANA.” The bill was at some point amended to add that the “offense involved possession and transportation of Marijuana through several parishes including the Parish of Livingston, each part of a continuous offense, in violation of La.R.A. [La.R.S.] 40:966.” The final bill to which the defendants pled guilty also included a second count for conspiracy to possess with intent to distribute, which count was apparently added as a part of a plea bargaining agreement between defendants and the state.

       Former R.S. 15:78 provided as follows:
      “The judges and other magistrates of all courts having criminal jurisdiction throughout the state, are hereby vested with jurisdiction over any person arrested for any crime or for the violation of any ordinance under and within their respective jurisdictions, from the moment said person is arrested and taken into custody by any peace officer, with power and authority to immediately parole or release on bail such person so arrested over whom they have jurisdiction as aforesaid, provided the offense charged be bailable.”


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Louisiana v. Larry SHARPER.
    No. 66593.
    Supreme Court of Louisiana.
    May 28, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen, Ossie B. Brown, Dist. Atty., Richard E. Chaffin, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-ap-pellee.
    M. Michele Fournet, App. Counsel, A. L. Carbonette, Trial Atty., Alton T. Moran, Director, Baton Rouge, for defendant-appellant.
   PER CURIAM:

Defendant Larry Sharper was charged by bill of information with the Crime of armed robbery in violation of La.R.S. 14:64. He pleaded not guilty and was tried by a jury of twelve persons. A verdict of guilty as charged was returned by the jury and defendant was sentenced to twenty-one (21) years without benefit of parole, probation or suspension of sentence. Defendant appeals his conviction and sentence relying on one assignment of error. After this appeal was perfected, defendant’s original sentence was vacated and he was resentenced as a multiple offender under La.R.S. 15:529.1 to a term of forty-nine and one-half years. (49V2).

This Court has reviewed defendant’s assignment of error relating to the issue of guilty and found no error that warrants reversal. However, since the trial court was without jurisdiction to impose the enhanced sentence, see La.C.Cr.P. Art. 916, said sentence will be set aside and the original twenty-one year sentence will be reinstated. Should defendant be resentenced as a multiple offender subsequent to this appeal, his right to appeal his enhanced sentence is reserved to him.


author: PER CURIAM.

text:
    STATE of Louisiana v. Tommy JACKSON.
    No. 66627.
    Supreme Court of Louisiana.
    May 28, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Patrick G. Quinlan, Asst. Attys. Gen., for plamtiff-appellee.
    William L. Lowe, Shreveport, for defendant-appellant.
   PER CURIAM.

Affirmed.

WATSON, J., dissents.


text:
    STATE of Louisiana ex rel. Allen CROSBY, Sr. v. STATE of Louisiana.
    No. 67196.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Allen Crosby, Sr., applying for remedial writ. Parish of Orleans. No. 271-972.

Denied. Inasmuch as O.I.D.P. has on April 1, 1980 been appointed to represent relator in connection with his pending appeal, the application is now moot.


text:
    STATE of Louisiana v. Alvin James DARNELL.
    No. 67451.
    Supreme Court of Louisiana.
    May 1, 1980.
   In re Alvin James Darnell, applying for writs of review. Parish of Ouachita. No. 39374.

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


text:
    In re the MONTGOMERY COUNTY, ALABAMA GRAND JURY INVESTIGATION.
    No. 67500.
    Supreme Court of Louisiana.
    May 7, 1980.
   In re Fred Nolan, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Ouachita, 4th Judicial District Court.

Granted. Stay order continued in effect.


text:
    STATE of Louisiana ex rel. Carl SANGER a/k/a James Wilson v. STATE of Louisiana.
    No. 66531.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Carl Sanger a/k/a James Wilson applying for reconsideration of denied writ on January 18,1980. Parish of Caddo. No. 109,527.

Denied.


text:
    STATE of Louisiana v. A. J. GLENN.
    No. 67480.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re A. J. Glenn, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. No. 111,562.

Denied.

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


text:
    STATE of Louisiana v. Levy JOHNSON.
    No. 67463.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Levy Johnson, applying for writs of certiorari, prohibition, mandamus, stay order. Parish of East Baton Rouge. No. 1-80-833.

Denied.


text:
    STATE of Louisiana v. Daniel SOILEAU.
    No. 67436.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re State of Louisiana through the District Attorney, Norval J. Rhodes, applying for writs of certiorari and review. Parish of Terrebonne. Nos. 95,533, 95,534.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Louis WILLIAMS v. ORLEANS PARISH CRIMINAL DISTRICT COURT, SECTION “I”.
    No. 67424.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Louis Williams applying for writ of mandamus. Parish of Orleans. Number unknown.

Denied. Moot.


text:
    STATE of Louisiana v. David G. PHILLIPS.
    No. 67423.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re David G. Phillips, applying for supervisory writ of certiorari. Parish of Iber-ville. Nos. 99-80, 100-80 and 101-80.

Denied.


text:
    Major CARDNER v. MINNIE, INCORPORATED.
    No. 67421.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Minnie, Inc., applying for certiorari, or writ of review to the Court of Appeal, First Circuit. No. 13,071. Parish of Ascension.

Writ denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Albert FOURNETTE and William Sam v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67414.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Albert Fournette and William Sam, applying for writ of habeas corpus and mandamus. Parish of Orleans. No. 244-076.

Denied.


text:
    Leander H. PEREZ, Jr., District Attorney for the 25th Judicial District Court for the Parish of Plaquemines v. PLAQUEMINES PARISH COMMISSION COUNCIL.
    No. 67411.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Plaquemines Parish Commission Council, applying for supervisory writs. Parish of Plaquemines. No. 21,971.

Denied. Relator has filed an identical application into the Court of Appeal, which is pending.


text:
    STATE of Louisiana v. Gary Neil WILSON.
    No. 67409.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Gary Néil Wilson, applying for remedial writs. Parish of LaSalle. No. 20,-207.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Hans SCHROEDER and Henry Mender.
    No. 67376.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 275-367.

Writ denied.


text:
    STATE of Louisiana ex rel. Allen CROSBY, Sr. v. STATE of Louisiana.
    No. 67196.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Allen Crosby, Sr., applying for reconsideration of denied writ on April 18, 1980. Parish of Orleans. No. 271-972.

Denied. Relator’s offer of proof filed as a reconsideration of the writ denied on April 18, 1980 sets forth no issue for the Court’s present determination.


text:
    STATE of Louisiana ex rel. Raymond MORGAN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67146.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Raymond Morgan applying for writ of certiorari. Parish of Orleans. Nos. 208-567 and 208-568.

Denied.


text:
    STATE of Louisiana ex rel. Maurice G. Morlan, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67145.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Maurice G. Morían, Jr. applying for writs of habeas corpus, mandamus and cer-tiorari. Parish of Vermilion. No. 20-867.

Denied.


text:
    STATE of Louisiana ex rel. Leroy MADISON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67144.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Leroy Madison, applying for writ of certiorari, prohibition, mandamus and habe-as corpus. Parish of Terrebonne. No. 58,-349.

Denied.


text:
    STATE of Louisiana ex rel. Daniel E. GROVE v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67123.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Daniel E. Grove applying for writs of certiorari, mandamus, prohibition, habeas corpus and review. Parish of East Baton Rouge. No. 12-79-288.

Denied; relator must file in Orleans Parish District Court.


text:
    STATE of Louisiana ex rel. Jack Wesley DENNIS v. Judge Garland PAVY, 27th Judicial District Court, Parish of St. Landry.
    No. 67114.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Jack Wesley Dennis, applying for writ of mandamus. Parish of St. Landry. Nos. 26,367, 26,368, and 26,369.

Writ denied. This Court has previously reviewed the 1969 habeas transcript.


text:
    STATE of Louisiana ex rel. Arthur EVANS v. STATE of Louisiana.
    No. 67096.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Arthur Evans, applying for remedial writs. Parish of Orleans. No. 271778.

Denied; moot.


text:
    STATE of Louisiana ex rel. Donald JACKSON v. Judge Matthew BRANIFF, Orleans Parish Criminal District Court.
    No. 67093.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Donald Jackson, applying for writ of mandamus. Parish of Orleans. No. 249-699.

Denied.


text:
    STATE of Louisiana ex rel. Robert HARRISON, Jr. v. STATE of Louisiana.
    No. 66942.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Robert Harrison, Jr., applying for writ of habeas corpus. Parish of Orleans. No. 273-803.

Denied on the showing made.


text:
    STATE of Louisiana ex rel. Matthew THOMAS v. Ms. Louise GOODMAN, Court Reporter, 24th Judicial District Court, Section “J”.
    No. 66929.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Matthew Thomas, applying for writ of mandamus. Parish of Jefferson. No. 77-1063.

Denied.


text:
    STATE of Louisiana ex rel. Tyronne J. FORREST v. Edwin LOMBARD, Clerk of Court, Orleans Criminal Judicial District Court.
    No. 66910.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Tyronne J. Forrest, applying for remedial writs. Parish of Orleans. No. 269-672.

Denied.


text:
    STATE of Louisiana ex rel. Arnel NELSON v. SECTION “D” ORLEANS PARISH CRIMINAL DISTRICT COURT.
    No. 66665.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Arnel Nelson applying for writ of mandamus. Parish of Orleans. No. 248-419.

Writ denied. The application is moot, The district court has acted.


text:
    STATE of Louisiana v. Larry DAVIS.
    No. 67259.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Larry Davis, applying for remedial writs. Parish of Caddo. No. 67,259.

Dismissed.


text:
    STATE of Louisiana v. William JACKSON.
    No. 67405.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re State of Louisiana through the District Attorney, Harry Connick, applying for writ of certiorari, prohibition, and mandamus. Parish of Orleans. No. 254-847.

Granted.


text:
    STATE of Louisiana v. Nolan DAUZAT, Jr.
    No. 67398.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Nolan Dauzat, Jr., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Avoyelles. No. 42,161.

Writ granted. Trial court is ordered to allow relator to proceed on appeal in forma pauperis. Remanded for further proceedings.


text:
    In re Ronald J. RAKOSKY.
    No. 67365.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Ronald J. Rakosky, applying for writ of certiorari and stay order. Parish of Orleans. Magistrate Court. Number unknown.

Granted. Finding no evidence to substantiate the conviction for contempt, conviction and sentence are reversed.


text:
    STATE of Louisiana v. Kenneth MANNING, Sr.
    No. 67355.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re State of Louisiana through the District Attorney, applying for supervisory writs. Parish of East Baton Rouge. No. 1-79-451.

Writ granted.


text:
    STATE of Louisiana ex rel. Noble LEWIS v. STATE of Louisiana.
    No. 67321.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Noble Lewis applying for remedial writ. Parish of Orleans. No. 267-897.

Writ granted. Trial judge ordered to act forthwith.


text:
    STATE of Louisiana v. Dale GUILLOT.
    No. 67232.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Dale Guillot, applying for remedial writs. Parish of Avoyelles. No. 42645.

Granted.


text:
    STATE of Louisiana v. Marc R. SNODDY.
    No. 67200.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Marc R. Snoddy applying for writs of certiorari, prohibition, mandamus. Parish of East Baton Rouge. No. 5-79-609.

Granted.


text:
    STATE of Louisiana ex rel. Timothy A. JACKSON v. STATE of Louisiana.
    No. 67186.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Timothy A. Jackson applying for remedial writ. Parish of Orleans. Number unknown.

Writ granted and transferred for action to district court.


text:
    STATE of Louisiana ex rel. Charles MOSELEY v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67059.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Charles Moseley, applying for writ of mandamus. Parish of Avoyelles. Number unknown.

Granted. Application transferred to district court for action forthwith.


text:
    STATE of Louisiana v. Ervin Charles ST. AMAND.
    No. 66231.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Ervin Charles St. Amand applying for remedial writs. Orleans Parish. Number unknown.

Granted. An evidentiary hearing is ordered to determine whether the plea bargain was kept.


text:
    STATE of Louisiana v. O’Dowl WATSON.
    No. 66137.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re O’Dowl Watson, applying for writ of mandamus and writ of habeas corpus. Orleans Parish. No. 258-216.

Granted. Application transferred to district court for action forthwith.


text:
    Belva Shuffield HEBERT v. Robert Paul HEBERT.
    No. 67431.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Robert Paul Hebert, applying for writs of certiorari, prohibition, and mandamus. Parish of Terrebonne. No. 59644.

Not considered. Not timely filed. See Rule 10, Section 5(b).


text:
    Charles W. FRAZIER et ux. v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS.
    No. 67342.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Charles W. Frazier applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. No. 15476.

Writ denied.


text:
    Harry AYMOND et al. v. Danny STEELE et al.
    No. 67341.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Danny Steele et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Acadia. No. 7322.

Denied.

BLANCHE, J., would grant the writ.


text:
    Mary Derouen BONE v. Bohna BONE, Jr.
    No. 67339.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Bohna Bone, Jr. applying for remedial writ, 32nd Judicial District Court. Parish of Terrebonne. No. 57189.

Denied.


text:
    Edison RANDLE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67160.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Edison Randle applying for writ of mandamus. Parish of St. Mary. Number unknown.

Writ denied. Transcript of preliminary examination would be of no avail to relator who had pleaded guilty to charge of armed robbery.


text:
    STATE of Louisiana ex rel. Ray C. HAYES v. Roger AUCION, Warden.
    No. 67291.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Ray C. Hayes applying for writ of habeas corpus. Parish of East Baton Rouge. No. 7-79-497, Sec. 5.

Denied.


text:
    Faye Ross, Wife of/and E. L. CLEMENTS, Jr. v. Ashton J. RYAN and United China and Glass Company.
    No. 67276.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Faye Ross, wife of/and E. L. Clements, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 10883.

Writ denied.

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


text:
    STATE of Louisiana ex rel. Tom GREEN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67260.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Tom Green applying for remedial writs. Parish of East Baton Rouge. No. 89950.

Denied.


text:
    STATE of Louisiana ex rel. Napoleon HARPER v. STATE of Louisiana.
    No. 67250.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Napoleon Harper applying for writ of habeas corpus. Parish of Webster. No. 47,606.

Denied.


text:
    STATE of Louisiana ex rel. Harold J. VINCENT v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67241.
    Supreme Court of Louisiana.
    May 9, 1980.
   In ■ re Harold J. Vincent applying for writs of certiorari and habeas corpus. Parish of Vernon. Nos. 23,807 and 23,808.

Denied.


text:
    STATE of Louisiana ex rel. Arthur JOHNSON v. Frank C. BLACKBURN et al. Warden, Louisiana State Penitentiary.
    No. 67237.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Arthur Johnson applying for writ of habeas corpus. Parish of Jefferson. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Michael MYERS v. CLERK, COURT REPORTER, CRIMINAL DISTRICT COURT, SECTION “H”.
    No. 67223.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Michael Myers applying for writ of certiorari and mandamus. Parish of Orleans. No. 255-666, Section “H”.

Denied.


text:
    STATE of Louisiana ex rel. Sherrill LAWSON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 67219.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Sherrill Lawson, applying for remedial writs of certiorari and habeas corpus. Parish of Rapides. No. 182,457.

Writ denied.


text:
    STATE of Louisiana ex rel. McArthur JOHNSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67202.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re McArthur Johnson applying for writs of certiorari, and habeas corpus. Parish of Bossier. Nos. 55-234, 55-235.

Writ denied.


text:
    STATE of Louisiana ex rel. Eddie Ray JACKSON a/k/a Eddie Roy Jackson v. Frank C. BLACKBURN et al. Warden, Louisiana State Penitentiary.
    No. 67194.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Eddie Ray Jackson a/k/a Eddie Roy Jackson applying for writ of habeas corpus, mandamus, certiorari. Parish of DeSoto. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Howard ZENO v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67189.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Howard Zeno, applying for writs of certiorari and review. Parish of St. Landry Parish. No. 31,572.

Denied.

CALOGERO, J., would grant an eviden-tiary hearing.


text:
    STATE of Louisiana ex rel. Junious JONES v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67158.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Junious Jones, applying for writ of certiorari. Parish of Orleans. No. 247-189.

Denied.


text:
    Sharon R. HOLUBAR, Individually, etc. v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS et al.
    No. 67368.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re State of Louisiana, through the Department of Transportation and Development, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. 19th Judicial District Court. Parish of East Baton Rouge. No. 204,178.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Kenneth E. JAYE.
    No. 67349.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Kenneth E. Jaye applying for writs of certiorari, or review. Parish of Orleans. Criminal District Court. No. 271-005.

Writ granted and sentence set aside. Remanded for resentencing, trial judge to consider correct sentence range. There is no minimum sentence.

MARCUS, J., would deny the writ.


text:
    Emile F. LE ROUGE v. NEW ORLEANS PUBLIC SERVICE, INC., Norco Construction Company, Inc., and Middle South Utilities, Inc.
    No. 67326.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Emile F. Le Rouge applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 76-17263.

Denied.


text:
    James Paul WOOD v. AMSTAR CORPORATION.
    No. 67348.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Amstar Corporation applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. No. 30-797.

Denied.


text:
    Sheryl A. LEDET v. CONTINENTAL GRAIN et al.
    No. 67340.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Sheryl A. Ledet applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 24th Judicial District Court. No. 214-173.

Denied.


text:
    Robert M. BREITHAUPT, Jr. v. Luke SELLERS.
    No. 67332.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Robert M. Breithaupt, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 380 So.2d 1257.

Granted.


text:
    Melba Campbell ADAMS v. Dolvis Eric ADAMS.
    No. 67327.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Melba Campbell Adams applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 380 So.2d 737.

Granted.


text:
    Sidney BAZLEY v. Sordo TORTORICH, Aetna Life and Casualty Co., and Fireman’s Fund Insurance Companies.
    No. 67318.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Fireman’s Fund Insurance Companies, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 380 So.2d 727.

Writ granted.


author: WATKINS, Judge.

text:
    YORKWOOD SAVINGS AND LOAN ASSOCIATION v. CHARLIE HARDISON & SONS, INC., et al.
    No. 13129.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Sharon E. May, Baton Rouge, for plaintiff-appellee Yorkwood Savings & Loan Ass’n.
    Michael J. Uter, Joseph A. Perrault, Jr., Baton Rouge, for defendant-appellant Charlie Hardison & Sons, Inc.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action for a declaratory judgment to declare an act of sale of a mobile home null and void, and to declare plaintiff owner of the mobile home. Defendant has reconvened seeking a declaratory judgment that the act of sale in question is valid and ordering the delivery of the certificate of title to the mobile home in question to defendant.

It appears that plaintiff held a chattel mortgage on a Corsicana house trailer, model 24 X 60, 1972, bearing serial number 4-60-1203. The certificate of title (introduced as Exhibit P-1) issued by the Louisiana Department of Public Safety shows the owners of the mobile home to be John W. Dowty and Mattie R. Dowty. The Dowtys abandoned the mobile home, which was located near Boyce, Louisiana. Neal Delloco-no, an employee of Gulf Union Corporation, which is the servicing agent for plaintiff on its loans, found out that the mobile home had been abandoned by the Dowtys. Following Gulf Union’s usual procedure, Gulf Union contacted several mobile home dealers, who saw the trailer. Only one, Steve Allen, d/b/a AA Mobile Homes, made a bid. Allen’s mobile home lot was on the Airline Highway in Baton Rouge. Gulf Union accepted Allen’s bid. Allen had dealt with Gulf Union before, and had bought three or four mobile homes from plaintiff. The usual procedure with Allen and all other mobile home dealers was for the mobile home to remain on the site on which it was abandoned until the bid was submitted and accepted. This procedure was followed in the present case. Allen would then haul the mobile home out or leave it on the site, and bring a certified check. Title would then be released to Allen. Allen had always paid in the past.

Plaintiff alleges in its petition, and defendant admits in its answer, that the mortgagees acquired the mobile home as a result of a release signed by the mortgagors (the Dowtys). This release was never introduced in evidence, although plaintiff introduced an Affidavit of Possession of Motor Vehicle by Mortgagee, which was signed by Alan J. Weitz, Trustee, beneath the typed words “YORKWOOD SAVINGS AND LOAN ASSOCIATION”, as Exhibit P-2. This affidavit indicates that plaintiff had taken possession of the mobile home in question on June 8, 1977, and had obtained a voluntary surrender form signed by the mortgagors.

Gulf Union, following its usual practice, then prepared what is known as a “Pickup Order”. This pickup order, which was introduced as Exhibit Hardison-1, was dated “1-21-77”. (Why the date of the pickup order precedes the date of repossession given in the affidavit of possession is not explained in the record or briefs, but this problem is not at issue here.) The pickup order was addressed to Steve Allen, and asked him to pick up the mobile home in question. A map was attached which indicated that the mobile home was located near Hot Wells, Louisiana. As was the usual procedure, no funds were paid out prior to the pickup order’s going out.

Allen was contacted about picking up the mobile home in January of 1977 according to Dellocono’s testimony. Allen did not, and gave various excuses or reasons for not doing so. At the beginning of June, Allen said he was ready to buy the mobile home. The back of the certificate of title was endorsed in blank by Alan J. Weitz as trustee before a notary public, whose signature is illegible. All the papers of sale were prepared. Allen came by Gulf Union without the money, so Allen was never given a bill of sale. Gulf Union at all times had and retained possession of the certificate of title on the mobile home.

Charles Hardison, president of defendant corporation, which had a lot at Golden Meadow, Louisiana, on which twenty mobile homes were located, but which used the mobile homes for various purposes and was not a dealer, was contacted by Allen by telephone. Allen had heard that Hardison was looking for a mobile home. Allen told Hardison that he had several mobile homes on his lot. Hardison drove to Allen’s lot in Baton Rouge, and did not find any mobile homes that he liked. Allen told him that he had another trailer at Boyce. Allen, Allen’s wife or girlfriend, Hardison, and Grace Hodges, bookkeeper for defendant corporation, drove to Boyce in the same car, went farther out into the country, and Hardison looked at the mobile home in question, which, after some discussion on the way back to Baton Rouge, Hardison agreed to buy. A bill of sale (introduced as Hardi-son-2) was prepared, which was signed by Allen and Hardison on behalf of defendant. The bill is dated “2-3-77” and the purchase price is given as $8,350.00, including sales tax. Gulf Union, as has been stated, had possession of the certificate of title. Hardi-son never asked Allen for documents which indicated Allen owned the mobile home. Hardison took it for granted that Allen owned the mobile home.

Some work needed to be done on the mobile home, which was in bad condition. It was agreed that Hardison would not pay Allen for the trailer until the work was completed and the mobile home hauled down to Hardison’s lot. Hardison on behalf of defendant issued a check (introduced as Hardison-3) dated “February 18, 1977”, for $6,500.00 when the trailer was delivered and part of the work completed. A second check in the amount of $950.00 (introduced as Hardison-4), dated “3-15-77”, was issued when the work was completed, marked in the same handwriting as that of the signer “Paid in Fulll” (sic). (The two checks did not make up the full sales price because a third check, introduced as Hardi-son-5, was issued by defendant for carpeting, dated “Feb. 23, 1977”, payable to the order of U. S. Rushing & Son, in the amount of $816.78).

Defendant corporation appears still to be in physical possession of the trailer. Allen has absconded with the money. Delloeono found out about the purported sale from Allen to defendant from Harry Lilly, who had a mobile home lot next to Allen’s lot, in September or October of 1977. The present suit was then filed.

The trial court held that the purported sale from Allen to defendant was null and void, declared plaintiff the owner of the mobile home, and dismissed defendant’s re-conventional demand, all costs to be borne by defendant. We affirm.

The Motor Vehicle Certificate of Title Law (La.R.S. 32:701 et seq.) applies. The Motor Vehicle Certificate of Title Law applies not only to the sale and mortgaging of motor vehicles but to the sale and mortgaging of all vehicles which must be licensed under Chapter 4 of Subtitle II of Title 47 of the Louisiana Revised Statutes of 1950,” which Chapter and Subtitle specifically include trailers (see La.R.S. 47:462). With certain specific exceptions not here pertinent, no purchaser has a marketable title to a vehicle unless he has a certificate of title to the vehicle. Neither Allen nor defendant corporation had or has a certificate of title. The certificate of title was at all times in the possession of Gulf Union. Hence, we hold that defendant does not have title or marketable title, and that the purported act of sale from Allen to defendant was null and void. In view of the fact that the mortgagors, the Dowtys, are alleged by plaintiff and admitted by defendant to have released the mobile home to plaintiff, plaintiff must be considered the owner of the mobile home.

It is true that a judicial exception to the Motor Vehicle Certificate of Title Law may have been created by two cases, Flatte v. Nichols, 233 La. 171, 96 So.2d 477 (1957) and Gomez v. Security Insurance Co. of Hartford, 314 So.2d 747 (La.App.4th Cir. 1975), which are based upon the doctrine of estop-pel. However, these cases differ from the present case in the factual situations presented.

In Flatte, one Carley bought a car from Cargile Motor Company in Texarkana, Arkansas, acquired a manufacturer’s certificate, and immediately applied for a Texas title certificate. Carley sold the car to plaintiff, a Texas dealer, and delivered the receipt for a Texas license, this being the only muniment of title that Carley possessed. Plaintiff then delivered the car personally to Murphy, a dealer in Cleveland, Mississippi, with whom plaintiff had previously done business. Plaintiff gave Murphy the title papers he had received from Car-ley, and gave Murphy an invoice of sale, signed by plaintiff’s bookkeeper and notarized by plaintiff, which indicated that the sale was for “cash”. The purchase price was paid by check. The check was refused, for insufficient funds. Plaintiff knew that Murphy was a dealer, and would resell the car. Mississippi at the time had no motor vehicle certificate of title law. Before the check was .ultimately refused, Murphy resold the car to defendant, delivering the documents Carley had delivered to plaintiff, the invoice signed by plaintiff, and the mu-niments of title in Mississippi. After the sale from Murphy to defendant the Texas certificate of title was issued and delivered to plaintiff. Defendant later resold the car, but this sale did not affect the result. Plaintiff sued defendant for the return of the car or its value. Defendant pleaded estoppel. The Louisiana Supreme Court held that plaintiff could not recover because he was estopped from doing so. It stated: “It is settled jurisprudence that where one of two innocent parties must suffer loss through the fraud of another, the burden of the loss should be imposed on him who most contributed to it.” (96 So.2d. 477, 480).

In the present case, unlike Flatte, the plaintiff never entered into an act of sale with the intermediary (in this case Allen, in the Flatte case Murphy). The most that plaintiff or Gulf Union in the present case ever executed was a pickup order, which was executed by Gulf Union, and which was not an act of sale. In Flatte, the plaintiff’s bookkeeper executed, and plaintiff notarized, an invoice of sale. Furthermore, in Flatte, the intermediary Murphy, delivered the invoice of sale to the defendant. In the present case, Allen did not deliver, or even show to defendant, the pickup order, which was not an act of sale, nor did he show to defendant any papers that would indicate that, title to the mobile home had been delivered to Allen. There were none, as we have stated.

In Gomez, if plaintiff, Gomez’s, version of the facts is correct, one Rigger came to plaintiff’s house, accompanied by a person identified as a mechanic, in response to a newspaper advertisement offering for sale a car owned by plaintiff. Plaintiff, Rigger, and the “mechanic” took a test ride. Rigger indicated he was interested in buying the car, asked to see the title certificate as a protection against liens, and wrote a check for $1,250.00. Plaintiff showed Rigger the title certificate but refused the check, stating that he preferred to wait until the weekend was over to close the transaction. Rigger asked permission to show the car to another mechanic and left but never returned. Unknown to plaintiff, Rigger had taken the title certificate, which was endorsed in blank, and left the check. Plaintiff called the police, who informed plaintiff that they could take no action until the check was refused. On Monday morning, plaintiff learned that the check was drawn on an account Rigger had set up an hour before plaintiff saw him with a deposit of $25.00. The car was found in a used car lot, but Rigger had disappeared. Rigger had sold the car for $600.00 to the dealer. Rigger had delivered the certificate of title, endorsed, to the dealer and given him a bill of sale. Upon payment of the sum of $600.00, plaintiff recovered the car. The car was insured against theft by defendant. When defendant refused plaintiff’s claim for $600.00, plaintiff filed suit, and defendant filed a third party petition against the used car dealer under the subro-gation clause of the policy.' The Court of Appeal concluded that indeed a theft had occurred, and rendered judgment for plaintiff on the principal demand. It, however, denied defendant’s third party demand against the used car dealer, stating that of the two innocent parties plaintiff, not the used car dealer, was the more blameworthy, as plaintiff had consented to Rigger’s obtaining temporary possession of the car and had allowed him whether voluntarily or involuntarily, to obtain the certificate of title endorsed in blank. Citing Flatte, it said that plaintiff’s subrogee, the insurer, must bear the loss.

If this case constitutes an exception to the provisions of the Motor Vehicle Certificate of Title Law in looking to the equities as well as to the certificate of title, it should be borne in mind that the used car dealer in Gomez was delivered the certificate of title, endorsed in blank. The ease thus rests in part on the Motor Vehicle Certificate of Title Law. In the present case, Gulf Union, plaintiff’s servicing company, at all times had possession of the certificate of title. Allen never had the certificate of title. Furthermore, Gomez’s negligence in permitting Rigger to obtain temporary possession of the car far surpasses any possible negligence on the part of Yorkwood and Gulf Union.

We therefore, conclude that the doctrine of estoppel, if .it indeed constitutes an exception judicially created to the Motor Vehicle Certificate of Title Law, does not apply in the present case.

A third case, cited by defendant in its brief, Port Finance Co. v. Ber, 45 So.2d 404 (Orl.La.App.1950), is not in point, as it involves a sale of an automobile which took place on May 6, 1948, before the Louisiana Motor Vehicle Certificate of Title Law was enacted .(see Louisiana Act No. 342 of 1950).

There is nothing in the factual situation presented in the present case that would suggest that Allen or AA Mobile Homes was ever an agent of Yorkwood or Gulf Union for the sale of the mobile home.

Judgment of the trial court is affirmed, all costs of the trial court and this appeal to be borne by defendant.

AFFIRMED.


text:
    Janet Carol Mayo HOLLIS v. Joseph HOLLIS.
    No. 13148.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    On Rehearing May 5, 1980.

      Joe Thompson, Baton Rouge, of counsel, for plaintiff-appellee Janet Carol Mayo Hollis.
    Don Moss, Baton Rouge, of counsel, for defendant-appellant Joseph Hollis.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented. Furthermore, no brief had been filed on behalf of appellant, nor had any motion been filed for a continuance.

Pursuant to Rule 7, Section 5(b) of the Uniform Rules — Courts of Appeal, this court, ex proprio motu, considers this appeal abandoned. Therefore, it is. ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.

ON REHEARING

This case comes to us on rehearing from our judgment dismissing the appeal from a judgment of the Family Court for East Baton Rouge Parish. We dismissed the appeal under Rule 7, Section 5(b) of the Uniform Rules — Courts of Appeal considering the appeal as abandoned for failure of appellant to have timely filed brief.

On application for rehearing the Court was convinced that appellant’s brief was timely filed and rehearing was granted.

The Family Court for East Baton Rouge Parish decreed a divorce between the parties and awarded Janet Carol Mayo Hollis $125.00 per month permanent alimony and $250.00 per month child support. The former husband, Joseph Hollis, appealed. We affirm.

Janet Carol Mayo Hollis and Jospeh Holt lis were married October 18, 1974. Of the marriage, one child was born, Shannan Elizabeth Hollis, of whom the mother was awarded custody in the proceedings discussed below.

On January 3, 1978, Mrs. Hollis sued Mr. Hollis for a separation from bed and board. On January 12, 1978, by consent judgment, alimony pendente lite for Mrs. Hollis was set at $350.00 per month and child support was set at $175.00 per month. On application of Mr. Hollis, alimony was reduced to $200.00 per month and child support was continued at $175.00 per month, judgment dated March 6, 1979.

On April 10, <1979, Mr. Hollis filed a petition for divorce and elimination of alimony. Mrs. Hollis reconvened seeking a fixing of permanent alimony at an amount increased from the amount awarded pendente lite and also seeking increased child support.

The trial court awarded permanent alimony of $125.00 per month (a reduction of $75.00 per month from the amount previously awarded), and child support of $250.00 per month (an increase of $75.00 per month from the amount previously awarded). The defendant, Joseph Hollis, has appealed, contending the trial court erred in awarding alimony to Mrs. Hollis when she has sufficient means for her support, and in increasing the award of child support without any showing in the record of change in circumstances.

The only change in circumstance shown since March of 1979 is the $36.50 per week expense for nursery school for Shan-nan, which we must assume was the basis for the increase of child support. On a monthly basis this expense would average out to approximately $150.00 per month, so that the trial court’s award has the effect of requiring the father, Mr. Hollis, to pay one-half on the additional expense. The mother, Mrs. Hollis, will presumably have to bear the remainder of this expense for child support. Both parents are obligated to support the children (child) born of the marriage. LSA-C.C. art. 227; Savoie v. Curtis, 354 So.2d 705 (La.App. 4th Cir. 1978); McCain v. McCain, 374 So.2d 135 (La.App. 1st Cir. 1979). As Mrs. Hollis is also obligated to support the child, and as her net income is substantially less than Mr. Hollis’ net income, we find no error in his contributing a substantially larger amount toward the support of the child.

Appellant’s contention that appellee, Mrs. Hollis, has “sufficient means” for her support and is consequently not entitled to permanent alimony presents a more difficult question. The record shows that Mr. Hollis has a net monthly income of $960.00. Mrs. Hollis now has a job which pays her a net income of $520.00 per month. Deducting the amount of $250.00 for child support from Mr. Hollis’ net income leaves him the sum of $710.00 per month for his support. Deducting the amount of $75.00 per month which we estimate Mrs. Hollis will pay toward child support leaves her the sum of $445.00 per month for her support. Considering the needs of Mrs. Hollis as shown by the record, we cannot find that $445.00 per month would provide her with sufficient means for her support. We are dealing here with relatively small sums of money for the support of the parties in view of the present cost of living. The trial court’s award of $125.00 per month as alimony to Mrs. Hollis has the effect of reducing Mr. Hollis’ net income for his support to $585.00 per month, and of increasing Mrs. Hollis’ net income for her support to $570.00 per month, a .position of approximate financial equality, yet sums that will have to be managed prudently by the parties in order to maintain a minimum standard of living. We cannot agree with appellant’s, Mr. Hollis’, contention that the trial court awarded alimony and child support as a lump sum without considering the merits of each award. Accordingly, we find no clear showing of an abuse of discretion on the part of the trial court. See Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir. 1975); Johnson v. Johnson, 293 So.2d 213 (La.App. 3rd Cir. 1974).

The judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: SARTAIN, Judge.

text:
    Frank Harlan AUGUSTINE, Plaintiff-Appellant, v. WASHINGTON PARISH POLICE JURY et al., Defendant-Appellee. Frank Harlan AUGUSTINE, Plaintiff-Appellant, v. Charley SPEARS et al., Defendant-Appellee.
    Nos. 12976, 12977.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      Lemuel E. Hawsey, III, and Glenn A. Koepp, Baton Rouge, for plaintiff-appellant.
    John W. Anthony of Talley, Anthony, Hughes & Knight, Bogalusa, for Washington Parish Police Jury and Commercial Union Ins. Co.
    Marion B. Farmer, Covington, for Charley Spears.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   SARTAIN, Judge.

The incident giving rise to this litigation was an altercation between Frank H. Augustine (Augustine) and Charley Spears (Spears), both of whom at the time were employees of the Washington Parish Police Jury (Police Jury). Augustine brought suit against the Police Jury and Commercial Union Insurance Company (Commercial Union), the Police Jury’s workmen’s compensation insurance carrier, for compensation benefits under the act. He also brought a delictual action against Spears and Commercial Union, which also carried the liability insurance for the Police Jury. These suits were consolidated for trial. The delictual action was tried to the jury and the workmen’s compensation case was tried to the district judge. Augustine now appeals from adverse judgments in both suits. We affirm.

Before we address the issues on the merits, it is necessary that we dispose of two preliminary matters relating to the del-ictual action. Plaintiff re-urged at oral argument in this court his previously rejected motion to remand. He contends that the record is materially deficient in that it fails to contain a transcript of the voir dire examination, the opening and closing arguments of counsel, and several conferences held in chambers. While these items are not included in the transcript, counsel fails to show or even allege in his motion that improper questions were propounded to the prospective petit jurors, or that any prejudicial statements were made in the opening and closing arguments of opposing counsel, or to even identify the subject of those matters he avers were concluded in chambers and should have been included in the appellate record. It was for this reason that his earlier motion to remand was denied. Absent any further particularization as to error, his instant motion is without merit.

C.C.P. art. 2128 provides in pertinent part: “The form- and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution.” Rule 1, Section 3, of the Uniform Rules — Courts of Appeal, prescribes in detail the form and content routinely required of the record on appeal. Voir dire examination, opening and closing arguments, and routine preliminary matters agreed to in chambers are not listed as required contents of the record. They can be made a part of the record by timely request of counsel at the hearing on the merits or by raising an issue on appeal as to error in the form and content of the voir dire examination or the arguments of counsel. Fontenot v. Garland, 352 So.2d 251 (La.App. 3d Cir. 1977). Just the mere absence of these items in the record on appeal and nothing more does not warrant or justify a remand for their ultimate transcription and inclusion in the record.

The other preliminary matter relates to defendants’ motion to dismiss the appeal in the tort suit. Defendants contend that the plaintiff, by filing only a motion to remand (for reasons stated above) and no brief on the merits, has abandoned his appeal in the tort suit. We deny the motion.

Defendants undoubtedly rely on Rule 7, Section 5(b) of the Uniform Rules — Courts of Appeal, which authorizes the intermediate appellate courts of this state to consider as abandoned and dismiss the appeal in any case in which the appellant has failed to appear or file a brief prior to the tiihe the case is called for oral argument. The second sentence of the pertinent section of the rule, however, is abundantly clear. “Appearance” is classified as either “personal” or “the filing of a written instrument negating any intent to abandon the appeal . . . Counsel’s brief in support of his motion, filed two days before oral argument, and his appearance at oral argument re-urging the same are more than sufficient to negate any intent to abandon the appeal.

ON THE FACTS

As to be expected, there are two versions of the events leading up to the altercation between Augustine and Spears.

The record reflects that both were employed by the Police Jury as road maintenance personnel of District 3. The heavy equipment for this unit was kept at an equipment barn in Bogalusa. The normal workday was from 7:00 o’clock A.M. to 4:00 o’clock P.M. Spears, as unit supervisor, would generally arrive at 6:45 A.M., unlock the gate, and await the arrival of the crew working under his direction.

Some of the crew members arrived in their own transportation. They would remove the equipment, graders, front end loaders, and equipment trucks, from the barn, place their private vehicles in it, and then repair to the various work sites. On the Monday morning of December 1, 1975, Augustine, who was to operate a loader, was told by Spears to bring extra oil because the loader he was to use that day had developed a leak. He was also told to remove the defective part and bring it in with him that afternoon. The loader had been left over the Thanksgiving holidays on private property some distance away from the barn. From this juncture on, the factual versions of the remaining events of the day differ.

Augustine stated that he last used the loader on the previous Wednesday and that when he left it, it was not leaking oil. The machine had been used and moved over the weekend, he presumed by Spears. On his way to the new location he went by the old location and personally satisfied himself that, there being no oil on the ground, he had not been the operator to break the machine. After he had concluded his work for the day, he removed the broken line from the machine and brought it in with him. He placed it on a barrel in the barn. He claims to have arrived back at the barn around 3:20 P.M. There is no dispute over the fact that employees of the Police Jury are free to leave the barn upon their return and are not required to wait until 4:00 P.M.

Plaintiff stated that he did not leave the barn area because a fellow worker (Eugin) had not yet returned. He felt that as a courtesy to his follow employee he would go and get him if it were necessary.

Plaintiff further stated that as Spears drove up on a road grader he (Spears) started cursing him and accusing him. of breaking the machine. He claims that he followed Spears into the barn to give him the broken part and as the two were returning to their respective pickup trucks Spears became more aggravated, cursed him further, and made threatening gestures toward him. Believing that Spears was about to assault him, he returned to his truck to remove his glasses. Before he could look back to Spears’ direction, Spears struck him three times about the head with a hammer.

Spears’ version is that he returned to the lot between 4:15 P.M. and 4:20 P.M. He was driving a grader at the time. He got off, opened the gate, removed his truck from the barn, and drove the grader into the barn. He said that immediately on his arrival Augustine Started accusing him of having broken the loader. He said that Augustine followed him into the barn and then back out to where their respective pickup trucks were parked. He stated that he repeatedly told Augustine that it made no difference how the machine was broken or who broke it, that the Police Jury would pay to have it fixed and for him to go home because it was getting late. However, Augustine continued to follow and curse him. At one point, Augustine called him a “lying S. B.” and, according to Spears was eyeing a pine limb that was on the ground just a few feet away. Spears invited Augustine to take off his glasses and repeat the statement. He said Augustine removed his glasses by throwing them into the cab of his pickup truck and reached down and picked up the pine limb. Believing that he (Spears) was about to be assaulted, he turned to his truck which was just a few feet away and picked up a hammer to defend himself. Augustine was then standing there knocking the mud off the limb and grinding the bark off of one end to improve his grip. He claimed that Augustine then advanced on him swinging the limb. He ducked and hit Augustine on the side of the head with the flat side of the hammer. Augustine continued to advance and swing the limb again. Spears jumped back but the limb tore the buttons from his (Spears) jacket. He hit Augustine for the second and last time with the hammer. Augustine stumbled, grabbed some sand and gravel, and threw it into his face. He continued to retreat and Augustine to follow, swinging the limb, until he (Augustine) observed that he was bleeding and broke off the encounter. Augustine got in his truck and left. Spears waited for Eugin to arrive and then he left.

The only other witness to the fight was Mrs: Eugin. Her testimony generally corroborates that of Augustine. She said she arrived at the lot between 3:15 P.M. and 4:00 P.M. She observed Augustine follow Spears into the barn and then the two of them ás they walked back to their trucks. She next saw Augustine remove his glasses and place them in his truck. Spears at the time went to his truck and picked up “something.” Then the next thing she saw was Spears hit Augustine before the latter had turned back around. She did not hear any of the conversation between the two because her vehicle radio was on. She was totally surprised by the turn of events and immediately left. Her testimony in other respects, however, differs from that of Augustine and Spears, such as the time of her arrival, who was actually present, her friendship with Spears, etc. It is not necessary to relate these particular facts here. They are, in our opinion, sufficient to raise the credibility question.

Both Augustine and Spears denied that there was any prior ill feeling between the two. However, evidence was offered that Spears had replaced Augustine as foreman some three months before the incident. Further, Sheldon Crow, a fellow-worker, testified that after Augustine had returned to the lot and prior to Spears’ arrival, Augustine told him that he was going to wait for Spears if he had to wait “until 11:00.”

TORT SUIT

We will discuss the tort action first because as we will hereinafter note, the applicable law in this type of litigation varies somewhat from the rule applied in workmen’s compensation litigation. Because the judgment in the tort suit was the result of a jury verdict, we are not favored with specific findings of fact and can only look to the result. However, it is equally clear that whether the factual determination rests with the jury or judge, the scope of appellate review remains the same. “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.” Canter v. Koehring, 283 So.2d 716, 724 (La.1973). “Manifest error” was later emphasized to mean “clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). We find that the verdict of the jury in the tort claim was neither manifestly erroneous nor clearly wrong.

It is reasonable to assume and we so find, based on our own independent review of the record, that the jury concluded that both Augustine and Spears were at fault. Augustine in provoking the fray and grabbing the pine limb, and Spears for permitting words alone to cause him to challenge Augustine to remove his glasses. When the confrontation between the two reached this point, both were intent on doing bodily harm to the other. Either could have retreated; neither did.

Our jurisprudence is now well settled that mere words alone, even though designed to excite or irritate, can not excuse a battery. Morneau v. American Oil, 272 So.2d 313 (La.1973). This rule applies equally to the recipient of the verbal abuse (Spears) and tq the agitator (Augustine), where the latter accepts the challenge and both arm themselves with dangerous instru-mentalities with the avowed intent of settling their differences physically.

WORKMEN’S COMPENSATION SUIT

In reviewing Augustine’s claim for compensation benefits, the trial judge in his written reasons for judgment concluded that the altercation occurred after working hours and that under the circumstances Augustine was not entitled to any benefits under the act. In his written reasons for judgment, the judge a quo stated:

“When Mr. Augustine returned to the Parish barn on the afternoon of the injury and took his own private truck out of the barn, his work-day was ended and he was free to leave the premises of his employer. He had already left the broken piece of loader equipment in the barn or in Mr. Spears’ truck. He had no further duty of employment in respect to that matter. He did not need to wait for the return of Mr. Spears.
Mr. Augustine’s decision to remain on the premises after the completion of his work-day was entirely for personal reasons. He was under no duty whatever to await the arrival of Mr. Eugin who had not yet returned with a Parish truck. If anyone was under a duty to await Mr. Eugin’s arrival it was that of the foreman, Mr. Spears.
This case is distinguishable on the facts from Gorings v. American Sugar Refining Company, 222 So.2d 530 (La.App. 4th Cir. 1969).
Ample support for the Court’s decision is found in Lisonbee v. Chicago Mill and Lumber Co., 278 So.2d 5 (S.C.1973); Carter v. Lanzetta [249 La. 1098], 193 So.2d 259 (La.S.C.1966); and Blade v. Mervis, 226 So.2d 552, (La.App. 4th Cir. 1969).”

It is evident from these reasons that the trial judge did not address the legal consequences growing out of the altercation itself. Stated another way, he simply concluded that the injuries allegedly received by Augustine did not arise out of his employment because he chose to remain on the premises after his work for the day was concluded and he was privileged to leave. We cannot affirm on so narrow a holding.

If the altercation itself were removed from the facts and plaintiff was otherwise injured, i. e., slipped and fell on the premises while waiting for a fellow employee to return, we have grave doubts if he would be denied recovery. See: Carter v. Lanzetta, above, Crane v. Patterson & Yeary Steel Company, 357 So.2d 49 (La.App. 4th Cir. 1978), writ refused 359 So.2d 196 (La.1978); Serean v. Kaiser Aluminum & Chemical Corporation, 277 So.2d 732 (La.App. 4th Cir. 1973); Singleton v. Younger Brothers, Inc., 247 So.2d 273 (La.App. 4th Cir. 1971), writ refused 259 La. 59, 249 So.2d 202 (1971); Huett v. Insurance Company of North America, 329 So.2d 222 (La.App. 4th Cir. 1976), writ denied 332 So.2d 863 (La.1976). Plaintiff’s workmen’s compensation claim must stand or fall on the applicability of R.S. 23:1081 and the facts surrounding the altercation.

R.S. 23:1081, in pertinent part, provides:

“§ 1081. Deliberate or wilful injuries, etc.; defenses; burden of proof
No compensation shall be allowed for an injury caused (1) by the injured employee’s wilful intention to injure himself or to injure another
In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employer.”

The leading case on the subject is Velotta v. Liberty Mutual Insurance Company, 241 La. 814, 132 So.2d 51 (1961). In this case the court rejected the aggressor rule, generally a defense in a tort action, and stated: pp. 53-54

“The appellate courts of this State in many instances have heretofore based their decisions interpreting this provision of the Compensation Act on the aggressor doctrine, generally denying recovery to the injured employee who provoked the assault which resulted in his injury.8 Although the results reached in these cases would not necessarily be erroneous, it would appear that the statutory provision involved does not require a resort to doctrines not there enunciated. The inquiry, under the mandate of the statute, it appears to us, should be limited to whether the employee’s injury resulted from the employee’s wilful intention to injure himself or another. Impulsive conduct, such as a push, shove, or a fist-blow, does not render the conduct of the employee sufficiently serious or grave, and there is no wilful intention to injure one’s self or another under such circumstances. 4 The mere fact that the employee seeking recovery may have been to blame for the fray is not adequate to meet the test — there must be more. Johnson v. Safreed, 224 Ark. 397, 273 S.W.2d 545. The test should involve an inquiry into the existence of some premeditation and malice on the part of the claimant, coupled with a reasonable expectation of bringing about a real injury to himself or another. If the retaliation which flows from his misconduct is not such as could be reasonably expected, his intention could not be held to envision that result and hence is not within the purview of the quoted provisions of the Act.” (Footnotes omitted)

See, also, 99 C.J.S. Workmen’s Compensation ¶ 264; 58 Am.Jur. Workmen’s Compensation, sec. 200; Law of Workmen’s Compensation by Arthur Larson, vol. 1, sec. 11.15(d); Louisiana Workmen’s Compensation Law and Practice by Wex Malone, sec. 345, p. 457.

The cases following Velotta, above, have further emphasized that the burden of proof rests with the defendant and it is a stern one. In Velotta, the plaintiff’s action in throwing a pair of trousers into a fellow-employee’s face was considered impulsive and lacking in intent to injure. In Crane v. Patterson & Yeary Steel Company, above, an ensuing fist fight between plaintiff and his supervisor over a paycheck was deemed to have resulted from plaintiff’s impulsive act and did not constitute “premeditation and malice.” However, in Buchert v. Metropolitan Insurance Company, 219 So.2d 584 (La.App. 4th Cir. 1969), plaintiff was denied recovery because his “wilful intention was to engage in a fight which he knew, or should have known, would injure himself or another.” In Relish v. Hobbs, 188 So.2d 479 (La.App. 3rd Cir. 1966), writ refused 249 La. 737, 190 So.2d 242 (1966), the plaintiff, who threw a hammer, at a co-employee, then knocked him down and started choking him, although considered impulsive, was denied recovery because such acts disclosed wilful intent to injure. Citing Garner v. Avondale Marine Ways, Inc., 134 So.2d 703 (La.App. 4th Cir. 1961) and Relish v. Hobbs, above, as factually similar, the court in St. Pierre v. Baifield Industries, Inc., 225 So.2d 96 (La.App. 2d Cir. 1969), denied recovery to a plaintiff who had followed his superior from one office to another, cursing and threatening him along the way, and who was in the act of striking him when the supervisor turned around and retaliated in self-defense. Finally, in Armstrong v. Jefferson Disposal Company, 258 So.2d 213 (La.App. 4th Cir. 1972), writ refused 261 La. 532, 260 So.2d 318 (1972), the plaintiff, who suffered a gunshot wound, was denied recovery where it was determined that he had threatened and slashed at his opponent with a knife.

In applying the statute (R.S. 23:1081) and the above cited jurisprudence, we find that the plaintiff is not entitled to workmen’s compensation benefits. In so holding, we apply the same facts as we noted above in the tort action, namely,, that both Augustine and Spears were equally intent on inflicting serious bodily injury to the other. Both had armed themselves (limb and hammer) with dangerous instrumentalities under circumstances that cannot be considered impulsive.

For the above reasons, the judgments of the district court (Nos. 12,976 and 12,977) are affirmed at appellant’s costs.

AFFIRMED.

      . Suit No. 12,976.

      . Suit No. 12,977.

      . The jury also rejected Spears’ reconventional demand against Augustine where the latter was charged with provoking the altercation. Spears did not appeal this decision nor answer Augustine’s appeal.

      . See note 2 above.

      . Rule 7, Section 5(b), Uniform Rules — Courts of Appeal
      “Consider abandoned and dismiss the appeal in any case in which the appellant has neither appeared nor filed brief prior to the time the case is called for oral argument, or the time the case is submitted without oral argument on the docket of the court. By ‘appearance’ is meant personal appearance in open court, or the filing of a written instrument negating any intent to abandon the appeal, or the filing of a written pleading; and * * ”


author: COLE, Judge.

text:
    Velma JOHNSON et al. v. Malcolm EDMONSTON, Sr. et al.
    No. 13119.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      Raymond C. Vinet, Sr., Baton Rouge, Allen H. Danielson, Jr., New Orleans, for plaintiff and appellant.
    Robert J. Vandaworker, Baton Rouge, for defendants and appellees Hubert W. James, Carroll Parr, Arthur L. Robbins, Virginia Schexnayder.
    Anthony J. Clesi, Jr., Baton Rouge, for defendants and appellees Jerome Braud, Kleve Stevens, Ronald F. Brock, Leon De-laune, Benjamin Delaune, Paul D. Elisar, Sr., Edward M. Gautreau, John E. Horton, Jr., Alfred W. Moore, Roy B. Tregre, Ronald W. Griffin, Donnie Smith, State Farm Ins. Co. and State Farm Fire & Cas. Co.
    Joseph F. Keogh, Baton Rouge, for defendants and appellees Esau Girlinghouse, Victor Poirrier, Thurman Tanner and Dennis Watson.
    Michael J. Matthews, Gonzales, for defendant and appellee Cline Braud.
    W. Arthur Abercrombie, Jr., Baton Rouge, for defendants and appellees East Ascension Academy and Travelers Ins. Co.
    Ralph Tureau, Gonzales, for defendants and appellees Wilson Longanecker and Jimmy Berthelot.
    James B. Doyle, Baton Rouge, for defendant and appellee J. E. McCrory.
    Arthur Howell Andrews, Baton Rouge, for defendant and appellee Milton Martinez.
    James E. Moore, Baton Rouge, for defendant and appellee James Burleigh.
    William C. Kaufman, III, Baton Rouge, for defendant and appellee Carlton Leblanc, Sr.
    Gordon R. Crawford, Gonzales, for defendants and appellees Jerome P. Leblanc, Stanley Dixon, Arthur L. Robbins, and Virginia Schexnayder.
    Glusman, Moore, Lopez & Wilkinson, Baton Rouge, for Lynwood Landry and Commercial Union Assurance Companies.
    Miriam T. Attaya, Gonzales, for defendants and appellee Malcolm Edmonston, Sr.
    Daniel R. Atkinson, Baton Rouge, for defendants and appellee Stanley Dixon.
    David L. Ray, Baton Rouge, for defendant and appellee Ansell McAllister.
    Vincent J. Sotile, Donaldsonville, for defendant and appellee East Ascension Academy.
    John L. Rarick, St. Francisville, for defendants and appellees Gordon Nickens, Edward Heintze, Ellis Babin, Sam Frederic and William Con tine.
    Joseph Gautreau, in pro. per.
    Dale Nolan, in pro. per.
    Walter Downs, in pro. per.
    Mathew Moran, in pro. per.
    Calvin E. Hardin, Jr., Baton Rouge, for defendant-appellees Matthew Gautreau, et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Plaintiff appeals the dismissal of forty defendants on motions for summary judgment and on the peremptory exception raising the objection of no cause of action.

This case arises out of an unfortunate accident which occurred in Ascension Parish on October 23,1977. Alton N. Johnson, the husband of plaintiff, was shot and killed while attending a garage sale at the Jerome Braud residence. A shotgun, which was being cleaned by Malcolm Edmonston, Jr., a minor, discharged hitting Johnson in the back. The garage sale was being sponsored by the ninth grade class of East Ascension Academy.

Suit for wrongful death was brought by Velma H. Johnson, the surviving spouse, individually and as tutrix of the decedent’s six minor children. Named initially as defendants were the parents of the three minors who were present at the garage sale, Malcolm Edmonston, Jr., Kim Braud, and Pam Stevens. In a supplemental and amending petition, the forty appellees were added as defendants along with East Ascension Academy. Appellees are the fathers and tutors of the members of the ninth grade class who were not present at the garage sale and Commercial Union Assurance Companies, the insurer of one of the parents. The parents were sued individually and as administrators of the estates of their minor children. Eight appellees were dismissed on motions for summary judgment. Thirty-seven appellees, including five who were also let out on motions for summary judgment, were dismissed when the court sustained their peremptory exception raising the objection of no cause of action.

In the original and two supplemental and amending petitions, plaintiff made the following pertinent allegations: that the defendant-minors held the garage sale to raise money for their class or school; that the three class members present at the sale were delegated by the class to conduct the sale as a joint venture; that the merchandise at the sale was donated by the parents; that the garage sale was held at the Jerome Braud home with the permission and consent of all parents as a joint venture; that at the sale Velma Johnson inquired about the shotgun she saw behind the counter and was told it was not for sale; that while Malcolm Edmonston, Jr. was cleaning the shotgun, it discharged killing Alton Johnson. Plaintiff lists the negligent acts of the minors as follows:

1. Failing to exercise due care for the safety of others;
2. Failing to prohibit loaded shotguns at the garage sale;
3. Failing to warn Alton N. Johnson of the loaded gun;
4. Failing to prohibit the cleaning of a shotgun at the garage sale;
5. Cleaning a loaded shotgun in a crowded area;
6. Failing to ascertain if the shotgun was loaded, or in ascertaining the shotgun was loaded, failing to take the requisite precautions;
7. Failing to see if the line of aim of the shotgun was free and clear; and
8. Any and all other acts of negligence which may be proven at the trial of the matter.

The negligence of the parents was specified as the following:

1. Failing to exercise due care for the safety of others;
2. Failing to prohibit loaded shotguns at the garage sale;
3. Failing to warn Alton N. Johnson of the loaded gun; '
4. Failing to prohibit the cleaning of a shotgun at the garage sale;
5. Failing to properly instruct said minors in the use of firearms;
6. Failing to ascertain if the shotgun was loaded, or in ascertaining the shotgun was loaded, failing to take the requisite precautions;
7. Failure to provide proper and adequate supervision for the garage sale to insure the safety of patrons; and
8. Any and all other acts of negligence which may be proven at the trial of this matter.

SUMMARY JUDGMENT

Code of Civil Procedure article 966 directs that a motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

Plaintiff complains the summary judgments dismissing eight appellees were improperly granted because there existed a relevant, genuine issue of fact, i. e. whether movers’ actions were negligent.

Plaintiff does not assert an issue of material fact existed with respect to the accident and the movers’ connection with the accident. The depositions, answers to interrogatories and affidavits on file reveal that the accident occurred essentially as alleged in the petition. These documents affirm that the movers were not present when the incident happened and had not been on the premises at any time that day. Their only connection with the garage sale was the children’s membership in the ninth grade class, which had agreed as a body to sponsor a garage sale to raise money for a prom. The evidence before the court on the motions for summary judgment also confirmed that the gun which killed Alton Johnson was completely unconnected with the sale, having been brought there by Malcolm on his return from a hunting trip. The only witnesses to the accident besides plaintiff were the three minors, Malcolm, Pam, and Kim, but an adult, Jerome Braud, was on the scene a short time thereafter.

Although the facts related to the occurrence and movers’ involvement are undisputed, questions remain as to whether movers’ conduct constitutes negligence and as to whether the relationship among the defendants was such as would be a basis for the imputation of negligence. Plaintiff argues that the existence of negligence is an issue of fact to be resolved at trial. We recognize that if the evidence presented on the motion for summary judgment is subject to conflicting interpretations or reasonable men might differ as to its significance, a summary judgment would be improper. However when reasonable minds must inevitably conclude the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted since in that case the reasonableness of conduct is an issue of law. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976); Cosse v. Schwegmann Bros. Giant Supermarkets, 336 So.2d 1074 (La.App. 4th Cir. 1976); Green v. Southern Bell Telephone & Telegraph Co., 204 So.2d 648 (La.App. 3d Cir. 1967).

We think this was a proper case for the rendition of a summary judgment. After consideration of the undisputed facts, reasonable men would have to conclude the conduct of movers was not negligent and in no way rendered them liable for the accident. As relates to movers, the shooting was entirely unforeseeable. They did not know a gun was present nor, under the circumstances, did they have a duty to discover the gun’s presence. When a child’s or parent’s only connection with a lawful activity, such as a garage sale, is the child’s membership in the group which sponsors it, the law will not impose a duty to protect against an entirely unforeseeable risk of harm arising from that activity. Under the facts of this case, movers’ failure to take positive steps to guard against such an accident was entirely reasonable.

Also, there is no basis for imputing to movers any negligence that might exist on the part of other defendants. Plaintiff’s pleadings label the garage sale a joint venture. The doctrine of imputing negligence to members of a joint venture has been recognized by Louisiana courts. Williams v. Barton, 81 So.2d 22 (La.App. 2d Cir. 1955). However the doctrine is inapplicable in the present case as an essential characteristic of a joint venture is missing — that of the right of control. Little v. Mississippi Chemical Express, Inc., 285 So.2d 267 (La.App. 3d Cir. 1973). Even though there might have been a common interest among all defendants, there is no evidence nor pleadings which indicate the movers, who were not even present, had an equal right of control.

NO CAUSE OF ACTION

The objection of no cause of action raises the question of whether the law affords any remedy to plaintiff under the allegations of the petition. It is triable on the face of the petition. For purposes of its determination, all well-pleaded facts are accepted as true and all doubts are resolved in favor of the sufficiency of the petition. C.C.P. arts. 927, 931. Elliot v. Dupuy, 242 La. 173, 135 So.2d 54 (1961); Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3d Cir. 1967).

According to the allegations in the original and two supplemental and amending petitions, appellees were not present when the shooting accident occurred. Nor is there an allegation that appellees had otherwise acquired any knowledge of dangerous conditions existing at the sale. The only alleged connections between appellees and the incident were the children’s membership in the class sponsoring the event, the parents’ donations of merchandise and the parents’ giving of permission to hold the sale. The petition also makes it clear that the gun which discharged was not an item of merchandise connected with the sale.

The specific acts of negligence plaintiff ascribed to the minors and parents are listed above. The first and eighth allegations made against both parents and children are of no import since they contain no specific factual allegations and thus cannot form the basis of a cause of action under our system of fact pleading. C.C.P. art. 891; Williams v. Chrysler Motor Company, 271 So.2d 551 (La.App. 1st Cir. 1972); Blanchard v. Employers Liability Assurance Corp., 197 So.2d 386 (La.App. 2d Cir. 1967).

Addressing first the allegations of negligence made against the children, we note the fifth allegation, “cleaning a loaded shotgun in a crowded area,” is not applicable to the appellees since the petition specifically stated it was Malcolm Edmonston, Jr. who was cleaning the gun. The other allegations all involve the minor-appellees’ failure to take certain actions with regard to the gun. We conclude these allegations do not state a cause of action as the alleged omissions do not constitute a breach of duty in light of the fact the minor-appellees were not at the sale and had no knowledge a gun was present. We do not think membership in the class sponsoring the sale is a sufficient basis for imposing on the minors such duties in regard to the gun.

Similarly, the allegations of negligence made against the parent-appellees fail to state a cause of action. Allegations 2, 3, 4 and 6 are the same as those made against the minors. As with the children, the failure of the parents to take the specified actions in regard to the shotgun did not constitute negligence as there was no breach of duty involved. The parent-appel-lees’ connection with the incident was too attenuated to carry with it such a legal duty. The fifth allegation is “failing to properly instruct said minors in the use of firearms.” Since any failure to provide instruction to the minors not present at the occurrence would not be a cause-in-fact of the accident, this allegation necessarily refers to the three minors present at the sale. Again we do not feel the appellees’ relationship to the garage sale and the three children present would create a duty to provide instruction in the use of guns. The final allegation is that appellees failed to provide adequate supervision for the sale to insure the safety of patrons. Even if we assume parent-appellees did breach a duty to provide supervision for the sale, we would have to conclude the risk of harm the decedent encountered was not encompassed within the ambit of that duty. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Appellees’ alleged connection with the garage sale was such that they could not reasonably have anticipated that the particular risk involved would have developed.

Additionally, under the facts as alleged we find no basis for imputing to appellees any negligence that might have been committed by other parties. Plaintiff alleges that the garage sale was conducted as a joint venture, but this is a conclusion of law and is of no significance in testing the petition for a cause of action. Williams v. Chrysler Motor Company, supra. The facts alleged do not establish that the relationship among defendants was that of joint venturers. The essential element of equal control is negated by the fact appellees were not present at the sale. Williams v. Barton, supra; Little v. Mississippi Chemical Express, Inc., supra.

For the foregoing reasons, the judgment of the lower court is affirmed. Costs of this appeal are to be borne by plaintiff-appellant.

AFFIRMED.

      . The term “parents” will be used to refer to the fathers and tutors named as party defendants. Unless another meaning is clear from the context, the terms “defendants,” “appellees,” and “movers” will refer to both the parents and their minor children who were named in the pleadings.