text:
    STATE of Louisiana v. Paul A. WILEY.
    No. 80-K-2103.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Paul A. Wiley, applying for writs of certiorari and review. Parish of Catahoula. No. 946.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Calvin WARE v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2112.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Calvin Ware, applying for writ of certiorari, review and mandamus. Parish of St. Landry. No. 33811.

Writ denied.


text:
    STATE of Louisiana ex rel. Lester R. ALLEN v. PARISH OF ORLEANS.
    No. 80-KH-2181.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Lester R. Allen, applying for remedial writs. Parish of Orleans. No. 275-987.

Denied. Appeal pending.


text:
    STATE of Louisiana v. Louis T. GRAHAM, Jr.
    No. 80-K-2272.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Louis T. Graham, Jr., applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. 114292.

Denied.

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


text:
    STATE of Louisiana ex rel. Larry J. CONFORTO v. 24TH JUDICIAL DISTRICT COURT, PARISH of JEFFERSON.
    No. 80-KH-2275.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Larry J. Conforto, applying for writ of mandamus. Parish of Jefferson. No. 78-1597.

Writ denied. The District Court has indicated that from a search of their records the writ was not filed in that Court. Relator should file again with the District Court.


text:
    STATE of Louisiana v. Henry McNEIL.
    No. 80-K-2334.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Henry McNeil, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 276-961, Sec. F.

Denied; adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana ex rel. Craig E. WHITT v. Sheriff Charles C. FOTI, Orleans Parish.
    No. 80-KH-2339.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Craig E. Whitt, applying for writ of mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Marcel ST. ANDRIE.
    No. 80-K-2343.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Marcel St. Andrie, applying for remedial writs. Parish of Grant. Nos. 36128 and 36132.

Writ denied.


text:
    STATE of Louisiana v. Stanley ADKINS and Frankie Wise.
    No. 80-KH-2039.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 277368, Sec. D.

Writ denied.

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


text:
    STATE of Louisiana v. Charlie D. LOVE.
    No. 80-K-2389.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Charlie D. Love, applying for writs of certiorari, prohibition, and mandamus. Parish of East Carroll. Nos. 21109 and 20806.

Denied.


text:
    STATE of Louisiana ex rel. Michael J. KARENKO v. STATE of Louisiana.
    No. 80-KH-2419.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Michael J. Karenko, applying for writ of habeas corpus. Parish of St. Tammany. No. 81724.

Denied.


text:
    STATE of Louisiana in the Interest of Barbara Ann LEPLEY.
    No. 80-K-2429.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Barbara Ann Lepley, applying for supervisory writs. Parish of Jefferson. Juvenile Court. No. 55451.

Denied, on showing made. Relator’s right is reserved to apply to court of appeal to review preliminary examination.


text:
    STATE of Louisiana v. Steven L. BROWN. STATE of Louisiana v. James W. McCARSTLE.
    No. 80-K-2442.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Steven L. Brown and James W. MeCarstle, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 80-774.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana ex rel., Ronnie Tyronne WILLIAMS v. STATE of Louisiana.
    No. 80-KH-2448.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Ronnie T. Williams, applying for motion for appeal bond. Parish of Orleans.

Denied.


text:
    HAUSERMAN, INC. v. ROUSSEL-HART GENERAL CONTRACTORS, etc. et al.
    No. 80-C-1800.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Hauserman, Inc., applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 385 So.2d 455.

Granted.


text:
    S. J. PATTON v. SILVEY COMPANIES and Palmer-Jones Timber Company, Inc.
    No. 80-C-1874.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re S. J. Patton, applying for writ of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Sabine. 385 So.2d 537.

Granted.


text:
    Lemindia Maples HALL v. Mitchell ALLRED et al.
    No. 80-C-1855.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Lemindia Maples Hall, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 385 So.2d 593.

Denied.

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


text:
    Arthur TROXCLAIR et al. v. OIL AND MARINE CORPORATION OF LOUISIANA, James M. Gill and Robert G. Claitor.
    No. 80-C-1872.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Oil and Marine Corporation of Louisiana, James M. Gill and Robert G. Claitor, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist. 385 So.2d 522.

Denied.

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


text:
    Vance Joseph TROXLER, Individually and in his Capacity as Natural Tutor of Minor Children, Lee G. Troxler, Vance J. Troxler, Christy, Ted J., and Terry Marie v. HERTZ CORP., U. S. Fidelity and Guaranty Co., Home Insurance, Metal Services, Lynn Burkhardt, Walter Cannon, Rodney Oil Field Comp., John N. Huff, Salem Leasing Corp., Comfort Chair Comp, and Carl Hefner.
    No. 80-C-1895.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Vance Joseph Troxler, et al, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 385 So.2d 507.

Denied.

LEMMON, J., would grant the writ.


text:
    Roger T. BOES v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 80-C-1903.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Roger T. Boes, applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 78-1274.

Writ denied.


text:
    Warren P. BOURGEOIS, Individually and as Administrator of the Estate of his Minor Son, Bentley J. Bourgeois v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Royal Globe Insurance Companies, and Ben Alexander, Jr., Individually and as Administrator of the Estate of his Minor Daughter, Nina M. Alexander.
    No. 80-C-1917.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Royal Globe Insurance Companies, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist. 385 So.2d 584.

Writ denied.


text:
    ADAMS INDUSTRIES, INC. v. CITY OF MONROE et al.
    No. 80-C-1925.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Adams Industries, Inc. applying for writ of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Ouachi-ta. 385 So.2d 896.

Denied.

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


text:
    Marie WALL v. VILLAGE OF TALLULAH.
    No. 80-C-1939.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re City of Tallulah, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Madison. 385 So.2d 905.

Denied.


text:
    Bobby HUNTER and Gail Hunter v. OFFICE OF HEALTH SERVICES AND ENVIRONMENTAL QUALITY OF the DEPT. OF HEALTH AND HUMAN RESOURCES of the State of Louisiana and Frances Everett Brander, Indiv. and as Representative of those Certain Underwriters at Lloyds, London and Louisiana Dept. of Health, Maintenance, and Ambulatory Patient Services et al.
    No. 80-C-1940.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Office of Health Services and Environmental Quality of the Dept, of Health & Human Resources of the State of Louisiana, and Frances Everett Brander, individually and as representative of those certain Underwriters at Lloyds, London & Louisiana Dept, of Health, Maintenance and Ambulatory Patient Services, et al., applying for writs of certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of DeSoto. 385 So.2d 928.

Denied.


text:
    Bobby HUNTER and Gail Hunter v. OFFICE OF HEALTH SERVICES AND ENVIRONMENTAL QUALITY OF the DEPARTMENT OF HEALTH & HUMAN RESOURCES of the State of Louisiana, and Frances Everett Brander, Indiv. and as Representative of those Certain Underwriters at Lloyds, London and Louisiana Dept. of Health, Maintenance, and Ambulatory Patient Services et al.
    No. 80-C-1942.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Louisiana Department of Health, Maintenance and Ambulatory Patient Service, et al., a/k/a Office of Health Services and Environmental Quality of the Dept, of Health and Human Resources of the State of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of DeSoto. 385 So.2d 928.

Denied.


text:
    Giselle COOPER v. Vera M. ANDERSON.
    No. 80-C-1944.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Bellefonte Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 385 So.2d 1257.

Denied.

LEMMON, J., would grant the writ.


text:
    Dudley G. BEENE v. Clara Columbia Geottell WILBUR.
    No. 80-C-1976.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Dudley C. Beene, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 388 So.2d 435.

Denied.


text:
    Janice Kinche, wife of Randolph M. HOWES v. Randolph M. HOWES.
    No. 80-C-2296.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Randolph M. Howes, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 388 So.2d 1182.

Denied.


text:
    J. L. RUMOLD & COMPANY, INC. v. RAULT PETROLEUM CORPORATION et al.
    No. 80-C-1990.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Rault Petroleum Corporation, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 385 So.2d 1237.

Denied.


text:
    D. H. WHITTINGTON v. LOUISIANA-PACIFIC CORPORATION.
    No. 80-C-1997.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re D. H. Whittington, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Winn. 385 So.2d 863.

Denied.

BLANCHE, J., would grant the writ.


text:
    Margaret Jean HALL v. The CITY of NEW ORLEANS, New Orleans Police Department, Detectives Charles Schlosser and Dale Bonura, District Attorney Harry F. Connick, Robert K. Brondum, Leonard C. Brondum, Joann Mershad, Larry J. Wood, Sr., Robert K. Brondum and Associates, Inc., Midland Insurance Company and Christopher Eardley Hall.
    No. 80-C-2036.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Margaret Jean Hall, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 385 So.2d 1253.

Denied.


text:
    Fred WANNAGE v. EMPLOYERS INSURANCE OF WAUSAU et al.
    No. 80-C-1989.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Fred Wannage, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 386 So.2d 1076.

Writ denied.

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


text:
    Mrs. Jewel Buckel, wife of/and John E. BUCKEL v. MAISON BLANCHE CORPORATION, Otis Elevator Company and Travelers Insurance Company.
    No. 80-C-1916.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Mrs. Jewel Buckel and John E. Buckel, applying for writ of certiorari, or review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 386 So.2d 1385.

Writ denied.

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


text:
    Floyd W. LOPEZ v. BLUE CROSS OF LOUISIANA.
    No. 80-C-1953.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Floyd W. Lopez, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Sabine. 386 So.2d 697.

Writ granted.


text:
    Bobby LEWIS, et ux. v. Leslie Michael TILL et al.
    No. 80-C-1977.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Bobby Lewis, et ux., applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Rapides. 387 So.2d 706.

Granted.


text:
    Jake CRATER et ux. v. The CITY OF LAKE CHARLES.
    No. 80-C-1992.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Jake Crater and Delores Crater, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 387 So.2d 623.

Denied.


text:
    Chester G. BOND, III, et ux. v. COMMERCIAL UNION ASSURANCE COMPANIES, et al.
    No. 80-C-1994.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Dorothy M. Bond and Virginia Phie Bond Maddox, applying for writ of certiora-ri, to the Court of Appeal, Third Circuit. Parish of Rapides. 387 So.2d 617.

Denied.


text:
    Charles J. DEESE v. Vera Ann DEESE.
    No. 80-C-2370.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Charles Deese, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. 387 So.2d 671. Parish of Jefferson Davis.

Denied.

LEMMON, J., would grant the writ.


text:
    Floyd W. LOPEZ v. BLUE CROSS OF LOUISIANA.
    No. 80-C-2148.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Blue Cross of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. 386 So.2d 697. Parish of Sabine.

Writ denied.


text:
    STATE of Louisiana v. Sharon McCATHERN and Daniel McCathern.
    No. 80-K-2102.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 277401.

Writ granted.


text:
    STATE of Louisiana v. Alfred NIETO.
    No. 80-K-1937.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 277-385.

Writ granted.


text:
    Peter V. CUCCIA v. PANELING WAREHOUSE SALES, INC.
    No. 80-C-2192.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Peter V. Cuccia, applying for certio-rari, or writ of review, from the 24th Judicial District Judge, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 388 So.2d 483.

Writ denied.

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


author: DIXON, C. J.,

text:
    Joanne JAMES v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 80-C-2267.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Joanne James, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 388 So.2d 389.

Denied. The result is correct.

DIXON, C. J.,

concurs in the denial; the instructions complained of are incorrect, but the result is not.


text:
    James R. PICTON v. SEWERAGE AND WATER BOARD.
    No. 80-C-2012.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Sewerage and Water Board of New Orleans, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of New Orleans. 385 So.2d 1259.

Denied.


text:
    Succession of Elizabeth Gerard TEDDLIE also known as Betty G. Tedane.
    No. 80-C-1938.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Joan Levering Jack, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 385 So.2d 902.

Writ denied.

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


text:
    Mrs. Arthur P. BURDON v. Robert HARVEY and W. G. Wiegand d/b/a W. G. Wiegand Company.
    No. 80-C-1918.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re W. G. Wiegand d/b/a W. G. Wie-gand Company, applying for writ of certio-rari, or review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 385 So.2d 514.

Denied.

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


text:
    PENINSULAR FIRE INSURANCE COMPANY v. LOUISIANA DEBATING & LITERARY ASSOCIATION and Travelers Insurance Company.
    No. 80-C-1897.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Peninsular Fire Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 385 So.2d 510.

Denied.

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


text:
    GOOD HOPE REFINERIES, INC. v. OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL, LOCAL 4-447.
    No. 80-C-2023.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Oil, Chemical & Atomic Workers International, Local 4-447, applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 386 So.2d 378.

Granted.


text:
    Ethel Bergeron PONS, w/o and Francis Anthony Pons, Sr. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Sentry Insurance Company, Loretta Tarto, w/o and Jack Tarto, in Solido.
    No. 80-C-1982.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Loretta Tarto, wife of and Jack Tarto, in solido, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 387 So.2d 47.

Granted.


text:
    Chester G. BOND, III et ux. v. COMMERCIAL UNION ASSURANCE CO. et al. Chester G. BOND, III et ux. v. Cindy G. JACK et al.
    No. 80-C-1965.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Lumbermens Mutual Casualty Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 387 So.2d 617, 387 So.2d 613.

Granted.


text:
    E. J. MARTIN et al. v. Michael ESPONGE et al.
    No. 80-C-1943.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Louis J. Sandras, Jr., et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 388 So.2d 128.

Denied.

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


text:
    Mrs. Ruby WHITE, et vir v. Dr. E. Edward McCOOL et al.
    No. 80-C-2280.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Ruby White and Stafford White, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 388 So.2d 122.

Granted.


text:
    Ernest JOHNSON v. Henry MARICLE and Sam Cloud.
    No. 80-C-2074.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Allstate Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vernon. 386 So.2d 677.

Denied.

DENNIS, J., would grant the writ.


text:
    Daryl C. Sins, wife of Alvin R. CHILDRESS, III v. Obie JOHNSON, Jr., and Shirley Mae Johnson.
    No. 80-C-2294.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Daryl Claire Sins, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. 387 So.2d 1217.

Writ denied.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Philip Foto SALLES.
    No. 80-C-2285.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re State of Louisiana through the Department of Highways, applying for certio-rari, or writ of review, 'to the Court of Appeal, First Circuit. Parish of St. Tammany. 387 So.2d 1278.

Denied.


text:
    Eileen Y. JACOMET v. ST. LANDRY PARISH SCHOOL BOARD AND ADMINISTRATOR, Office of Employment Security of the Department of Labor.
    No. 80-C-2238.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Eileen Y. Jacomet, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 386 So.2d 1056.

Denied.


text:
    Shellie J. SEALS v. Eugene MORRIS, et al. Sylvester L. HARRY v. Eugene MORRIS et al.
    No. 80-C-2291.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Shellie J. Seals and Sylvester L. Harry, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Washington Parish. 387 So.2d 1220.

Granted.


text:
    LOUISIANA WHOLESALE DISTRIBUTORS ASSOCIATION, INC. et al. v. The DEPARTMENT OF REVENUE AND TAXATION et al.
    No. 80-C-2268.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Louisiana Wholesale Distributors Association, et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1257.

Writ denied.

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


text:
    Thelma Leroy THRASH v. Willie THRASH.
    No. 80-C-1967.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Thelma Leroy Thrash, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchi-toches. 387 So.2d 21.

Denied.

DIXON, C.J., and MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Brian EASTWOLD et al. v. Marcel GARSAUD, Jr. et al.
    No. 80-C-2194.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Brian Eastwold, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 387 So.2d 682.

Denied.

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


text:
    Wayne ATTAWAY et al. v. Louis CULPEPPER.
    No. 80-C-2198.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Louis Culpepper, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchi-toches. 386 So.2d 674.

Denied.


text:
    James A. JEWELL v. Rickey E. THOMPSON et al.
    No. 80-C-2199.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Lonnie Blackmon, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Beauregard. 386 So.2d 689.

Denied.


text:
    Edgar W. JOHNSON v. AETNA CASUALTY & SURETY CO. et al. Jessie Mae JOHNSON v. AETNA CASUALTY & SURETY CO. et al.
    No. 80-C-2202.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Aetna Casualty and Surety Company and Triangle Timber, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. 387 So.2d 1340.

Writ denied.

MARCUS, WATSON, and LEMMON, JJ., would grant the writ.


text:
    Leo VASSEUR and Gladys Isreal Vasseur v. EUNICE SUPERETTE, INC.
    No. 80-C-2170.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Leo Vasseur and Gladys Isreal Vasseur, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 386 So.2d 692.

Writ denied.


text:
    Rodney FONTENOT et al. v. Margaret K. PETMECKY et al.
    No. 80-C-2172.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Rodney Fontenot and Gregory K. Fontenot, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Allen. 386 So.2d 702.

Writ denied.

DENNIS, J., would grant the writ.

WATSON, J., recused.


text:
    Carey N. KLEINPETER et ux. v. Reginald L. MURRELL et al.
    No. 80-C-2156.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Curtis Elliott, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 387 So.2d 1388.

Denied.

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


text:
    Curtis ELLIOTT et al. v. AETNA CASUALTY AND SURETY COMPANY et al.
    No. 80-C-2157.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re State Farm Mutual Automobile Insurance Company, applying for certiorari, or writ of review, to the Court of Appeals, Third Circuit. Parish of LaSalle. 387 So.2d 1383.

Denied.

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


text:
    Robert D. GUSTAFSON v. AETNA CASUALTY AND SURETY COMPANY et al.
    No. 80-C-2158.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Curtis Elliott, individually, etc., et al. and State Farm Mutual Automobile Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 387 So.2d 1389.

Denied.

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


text:
    Darryl HOYCHICK v. GULF STATES TOYOTA, INC.
    No. 80-C-2117.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Darryl Hoychick, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 386 So.2d 681.

Denied.


text:
    Jack M. LINZAY, Sr. v. TANGIPAHOA PARISH FARM BUREAU et al.
    No. 80-C-1830.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Jack M. Linzay, Sr., applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Tangipahoa Parish. 387 So.2d 1343.

Denied.

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


text:
    Dewey SMITH v. BOARD OF TRUSTEES OF LOUISIANA SCHOOL EMPLOYERS RETIREMENT SYSTEM.
    No. 80-C-2295.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Dewey Smith, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 387 So.2d 1291.

Granted.


text:
    STATE of Louisiana v. Morris BURTON.
    No. 80-K-2412.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Morris Burton, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 12-77-56.

Granted in part. Trial judge is ordered to hold a Prieur hearing in order to reconsider earlier ruling on the issue. Otherwise, denied; adequate remedy by appeal in event of conviction. See, State v. Davis, 389 So.2d 71 (La.1980).


author: LEAR, Judge.

text:
    Ruth Spears HEATLY v. DOLESE READY-MIX CONCRETE COMPANY.
    No. 13720.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    George R. Covert, Baton Rouge, counsel for plaintiff-appellant, Ruth Spears Heatly.
    Gerald L. Walter, Jr., Baton Rouge, counsel for defendant-appellee, Dolese Ready-Mix Concrete Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This case involves a death claim under the Louisiana workmen’s compensation act, the issue being whether or not the decedent suffered an “accident” during the course and scope of his employment as defined by said act.

When plaintiff rested his case at a trial on the merits, the court, on motion of defendant, granted a directed verdict dismissing plaintiff’s suit. Plaintiff appeals specifying three errors by the trial court, these being, first, that the court used the failure by plaintiff to sustain the burden of proof standard, rather than, the standard of whether the evidence was such that a reasonable and fair-minded man could have arrived at a verdict in favor of plaintiff; secondly, that the opinion of the court was contrary to the law and the evidence; and lastly, that the court was in error in excluding testimony of a psychologist.

The facts show that on the morning of his death, plaintiff’s husband, Burnell Heatly, arrived at work at approximately 7:00 a. m. He notified his supervisor that he thought the front end of his concrete truck was out of alignment and was advised to take the truck to the maintenance shop, a fifteen to twenty minute drive, for inspection. Shortly after 9:00 a. m., Mr. Heatly was found dead on the floor of the maintenance shop and according to the death certificate had suffered a cardiac arrest.

Appellant cites as authority for his first assignment of error the case of Campbell v. Mouton, 373 So.2d 237, La.App. 3rd Cir. (1979). This case involved a trial by jury. The instant case was trial by judge rather than jury and Campbell does not apply. In civil cases, tried without a jury, the trial judge has the responsibility to weigh and evaluate all evidence and render a decision based upon a preponderance of evidence. Sevin v. Shape Spa for Health & Beauty, Inc., 384 So.2d 1011, La.App. 4th Cir. (1980). In a jury trial, the jury rather than the judge is the trier of fact. At the conclusion of plaintiff’s evidence, the judge’s determination rests solely upon whether or not a factual dispute exists which must be resolved by the jury. In a non-jury trial, the judge is the trier of fact and at the conclusion of plaintiff’s evidence must decide whether or not plaintiff has made out a prima facie case.

The second alleged error is a conclusion. The issue here focuses upon whether or not there was any causal connection between the “accident” and death. Generally, in these types of cases, the courts look at the work being performed by the employee at the time he suffers a stroke or heart attack. In the instant case, the decedent was apparently waiting for his truck to be repaired and was not engaged in stress or heavy work. Decedent had a history of treatment for hypertension, arteriosclerosis and congestive heart failure. Based upon the evidence presented by plaintiff, the court was of the opinion that plaintiff had not carried the burden of proving that the death was job related. There is nothing in the testimony of Dr. Zimmerman, a psychologist, nor in the proffer, which convinced the trial court, nor this court, that decedent was suffering from a high state of anxiety created by driving his truck some ten miles to the maintenance shop. Therefore, we find no merit to plaintiff’s third assignment of error.

For the above reasons, the judgment of the trial court is affirmed, appellant to pay all costs.

AFFIRMED.

      . The Louisiana Workmen’s Compensation Act, L.R.S. 23:1031, states in pertinent part:
      “If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.”


author: COVINGTON, Judge.

text:
    Mary Evans HARRIS, Individually and as Tutrix of the Estate of David H. Williams v. BOGALUSA CITY SCHOOL BOARD et al.
    No. 13734.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.

      Richard P. Massony, Covington, for plaintiff.
    James S. Farmer, Bogalusa, for defendants, Bogalusa City School Bd., Gary Holcomb, Jr. and Acy Calvin Hartfield.
    Sondra A. Cheek, Gallaspy & Paduda, Bogalusa, for defendant, Velma Moses.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is a personal injury suit by the mother and natural tutrix, Mary Evans Harris, on behalf on her minor son, David H. Williams, a seventh grade student at Bogalusa Junior High School in Washington Parish, Louisiana. Suit was brought against the Bogalusa City School Board, the principal of Bogalusa Junior High School, Gary Holcomb, the assistant principal, Velma Moses, and the industrial arts teacher, Acy Calvin Hartfield. Suit was also instituted against Cletis (Cletis) Harris, the minor who was involved in the altercation with the plaintiff’s son, and Harris’ mother, Ruby Harris Manning.

In a well-reasoned and carefully considered opinion, which we adopt as a part of our own and attach as “Appendix A” the district judge thoroughly discussed the evidence adduced at the trial and properly applied the law to the facts at hand in finding that there was no liability on the part of the school board or the individual school personnel. He rendered judgment adversely to the plaintiff on her claims against these defendants. Judgment was rendered in favor of plaintiff against Cletis Harris and Ruby Harris Manning. They have not appealed, so that aspect of the case is not before us.

We affirm the judgment.

It is contended that there was negligence on the part of the Bogalusa City School Board through its employees, the principal and teachers involved, in failing to properly supervise and control the students involved in the fight. The courts have repeatedly held that “(t)he fact that each student is not personally supervised every moment of each school day does not constitute fault on the part of the School Board or its employees.” Lewis v. St. Bernard Parish School Board, 350 So.2d 1256, 1258 (La.App. 4 Cir. 1977); Partin v. Vernon Parish School Board, 343 So.2d 417 (La.App. 3 Cir. 1977); McDonald v. Terrebonne Parish School Board, 253 So.2d 558, 562 (La.App. 1 Cir. 1971), writ denied, 260 La. 128, 255 So.2d 353 (1971); Bourgeois v. Indemnity Ins. Co. of North America, 60 So.2d 718 (La.App. Orl.1952).

In the case of Prier v. Horace Mann Insurance Company, 351 So.2d 265, 268 (La. App. 3 Cir. 1977), writs denied, 352 So.2d 1042, 1045 (La.1977), the Court stated:

“Our jurisprudence is settled that a school board is not the insurer of the lives or safety of children. School teachers charged with the duty of superintending children in the school must exercise reasonable supervision over them, commensurate with the age of the children and the attendant circumstances. A greater degree of care must be exercised if the student is required to use or to come in contact with an inherently dangerous object, or to engage in an activity where it is reasonably foreseeable that an accident or injury may occur. The teacher is not liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, and did not do so. It also is essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between that lack of supervision and the accident.”

The instant situation is analogous to the one in Collins v. Wilson, 331 So.2d 603 (La. App. 1 Cir. 1976), wherein the Court found that the teacher had no reason to anticipate another fight after the first scuffle, and therefore no duty to guard against such an attack; hence, the teacher was not negligent.

We find that the record reflects that the school personnel in the instant case did everything reasonably possible to prevent the further altercation, but could not do so. Under the circumstances of this case, the teachers and staff could not have prevented the act which caused the damage. LSA-C.C. art. 2320; Collins v. Wilson, supra.

Accordingly, we affirm at the appellant’s costs.

AFFIRMED.

APPENDIX A
MARY EVANS HARRIS, INDIVIDUALLY 22ND JUDICIAL DISTRICT COURT and AS THE TUTRIX OP THE ESTATE
OP HER MINOR CHILD, DAVID STATE OF LOUISIANA H. WILLIAMS
VERSUS PARISH OP WASHINGTON
BOGALUSA CITY SCHOOL BOARD, ET ALS DOCKET NUMBER 42.458

REASONS FOR JUDGMENT

This is a suit by the tutrix of David Williams against the mother of Cletus Harris, the Bogalusa School Board, Mr. Gary Holcomb, Mrs. Velma Moses and Acy Calvin Hartfield, for damage to Williams’ left eye in a fight with Cletus Harris on May 24, 1976 on the Bogalusa Jr. High School campus. Williams was 14 when the incident occurred.

The fight started in Mr. Hartfield’s industrial arts class during fourth period when, after words, Williams got a belt from a fellow student and Harris took off his own belt, and they began striking each other. Mr. Hartfield and a fellow teacher, Mr. Pope, broke up the fight. Pope took Williams and Hartfield took Harris and they talked to them, calmed them down, and gave the belts back. Hartfield then proceeded to take Williams and Harris to the office of be dealt with by the principal. The office was located some distance north of the class.

As the three proceeded to the office, Williams and Harris continued cursing each other, and they attempted to begin another altercation, but Hartfield got the belt from Harris and they continued to the office.

When they got to the office the assistant principal, Mrs. Moses was there, and in charge. They began a discussion relacing to sending the boys home and Harris grabbed his belt, which Hartfield had laid on the counter, and ran out of the building. Hartfield watched Harris disappear south towards the bicycle rack. This was also the direction Harris would have to go in order to go home. He remained in the office with Williams while Williams attempted to call his parents who he was unable to reach. He and Williams then stepped out the office door where they discussed for a few moments where Williams lived. Hartfield told Williams to remain at the office while he went back to his class. He advised Williams that he would send a student back to the office with Williams’ books. As he started to go back to his class, Harris came back by the office on his bike, heading north, some 25 feet away. The boys cursed each other again and Williams ran after Harris, although Hartfield shouted a warning for him not to do so. They went around the corner of the building and Hartfield ran after them. When he got around the corner he noted that Williams and Harris had started fighting again. He then ran back to the office door and shouted for Mrs. Moses to call the police. He ran back around the building and the boys were some 40 feet away circling each other. Harris had a belt and an Afro comb commonly called a “pick” in his hands. Williams took the belt away from Harris and struck him with it, and they tied up, and Harris stabbed Williams with the “pick” over the left eye.

The Court finds the above to be the facts pertaining to the case. The liability of the defendants will be considered individually.

Gary Holcombe

Holcombe was the Principal. He was not present when the incident occurred and took no part. The evidence indicates no policy of his that would create liability on his part. He will be dismissed from the suit.

Mrs. Moses

Mrs. Moses was in charge of the office as Assistant Principal. The contention against her is that her ordering the boys home was negligence. It is not necessary to consider whether it was or not, simply because the incident occurred on the campus, at the office when neither boy had left to go home, and when the available supervision was still present. Consequently, the instruction to go home was not casually related to the eventual damage.

As far as Mrs. Moses physically breaking up the fight, all of the testimony indicates both the boys were students who would require literal physical man-handling once they were determined to fight, and both had been involved in several incidents before this one. Williams, for instance, had been expelled the year before for striking a teacher with a stick. In dealing with students of this type the Court knows of no legal requirement that a teacher or school administrator should place themselves in present danger of physical injury to avoid being held negligent for injuries resulting from an altercation between the students. The suit will be dismissed against her.

Mr. Hartfield

The only basis for holding Mr. Hartfield negligent would be his failure to physically separate the two after the fight began. He had, in fact, separated them at least twice before this. He might have had the opportunity to separate the two after telling Mrs. Moses to call the police and returning to the fray. By that time Harris was armed and Hartfield was fully aware of the physical risk to himself. For the Court to impose a duty on a teacher in Hartfield’s situation to risk physical injury to himself would be extremely onerous. The Court simply cannot say that Hartfield acted unreasonably in not trying to physically subdue the boys involved in the incident. The suit against Hartfield will be dismissed.

Bogalusa School Board

The agents or employees of the School Board not being liable, there is no liability on the part of the Board. There is no negligence with reference to policy. After this incident a policy was instituted barring afro combs, but there is no evidence that prior to this there was any reason for such policy. The suit against the School Board will be dismissed.

CLETUS HARRIS AND RUBY HARRIS MANNING

The incidents’ origination was probably mutual. However, Harris did not appear at Court, and the testimony of Williams is uncontradicted that when the final confrontation occurred Harris, being on a bicycle, was in a position to stay out of the final fight and did not do so. Harris also came back by the office on the bicycle immediately prior to the final fight, when it was unnecessary for him to do so in order to reach his home. Consequently, Harris and his mother are liable.

DAMAGE

There was unquestionably severe pain, and physical and emotional trauma on the part of Williams. An operation was necessary to repair the left eye and remove the “pick”. Williams claims he can see only a blur at this point. However, a June 16, 1977 report from Dr. Cotten indicates a 20/60 visual acuity in the left eye without a contact lens, but 20/20 with contact lens, although use of the contact lens apparently causes some double vision which might require an additional operation to cure. An award of $40,000.00 appears appropriate under the circumstances with an additional $338.00 for the bill of Dr. Haik.

Judgment in accordance with the above will be signed when presented.


author: WATKINS, Judge.

text:
    The CITY OF BATON ROUGE and the Parish of East Baton Rouge v. Hon. H. M. “Mike” CANNON, Jr., Clerk of Court, Charles Carter and Company, Inc., Insurance Company of North America et al.
    No. 13362.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Arthur J. Boudreaux, III, Baton Rouge, for defendant-appellant, Charles Carter and Company, Inc.
    Curtis K. Stafford, Jr., Baton Rouge, for defendant-appellee, International Stone and Erectors, Inc.
    Charles W. Franklin, Baton Rouge, for defendant-appellant, Pierce-King, a Joint Venture, Fire Fund Ins. Co. and American Ins. Co.
    Dan Edward West, Baton Rouge, for defendant-appellant, Ins. Co. of North America.
    Walter Monsour, Jr., and Jos. Keogh, Baton Rouge, for plaintiff-appellant, City of Baton Rouge, Parish of East Baton Rouge.
    Charles S. McGowan, Jr., Baton Rouge, for defendant-appellee, Southern Steel Co.
    Jimmie R. Major and Clifton O. Bingham, Jr., Baton Rouge, for defendant-appellee Viccinelli Sheet Metal & Roofing Co., Inc.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This appeal grows out of a concursus proceeding provoked by the City of Baton Rouge and the Parish of East Baton Rouge (City-Parish) to have judicially determined the rights of third parties in and to the sum of $1,094,342.14, which amount was deposited with the Clerk of Court for the Parish of East Baton Rouge, who is made one of the defendants herein.

Charles Carter and Company, Inc. contracted with the City-Parish in May 1973 to construct the present Governmental Building. Notice of Acceptance by the City-Parish was filed on November 28, 1977. Within a short period of time thereafter, liens were filed totaling $2,588,713.97.

By order of the court, the City-Parish was granted leave to deposit the sum of $1,094,342.14 into the registry of the court, and subsequently was ordered to augment this sum in the amount of $204,234.63, thereby increasing the total to $1,298,-576.77.

After contradictory proceedings were held, the lower court ultimately entered judgment against Charles Carter and Company, Inc., his surety, Insurance Company of North America, and the City of Baton Rouge and the Parish of East Baton Rouge in the amount of $293,610.24. This judgment represented recognition of the claims of five lienholders:

AMOUNT AMOUNT SOUGHT AWARDED
1. Southern Steel Company $ 1,412.50 $ 1,412.50
2. Gulf States Utilities 16,320.33 6,251.94
3. Menzie Tile Co., Inc. 62,766.38 17,683.90
4. Saia Electric, Inc. 211,355.49 211,000.00
5. Viccinelli Sheet Metal & Roofing Co., Inc. 57,261.90 57,261,90
TOTAL $349,116.60 $293,610.24

Yet to be decided are the claims of six other lienholders, of whom only one, Pierce-King, has appealed:

1. Pierce-King, A Joint Venture
2. International Stone & Erectors, Inc.
3. Orleans Material & Equipment Company, Inc.
4. Babst Services, Inc.
5. Vance Louque, Painting Contractor
6. Louisiana Glass Company

Pierce-King filed in its answer in the trial court a counter-claim against the City of Baton Rouge and Parish of East Baton Rouge in the sum of $204,234.63. This is precisely the additional sum that was subsequently deposited after concursus proceedings were initiated, as we noted before. Other counter-claims and cross-claims as between various subcontractors on varying tiers were filed, but only Pierce-King has appealed. We are, therefore, unable to find that any subcontractors who are parties appellant have any outstanding claims against subcontractors who are appellees, and we do not base our decision upon this factor.

However, the judgment of the trial court in this ease was only a partial judgment, rendered after only a partial trial which heard the claims of only some of the claimants, the claims of the other claimants to be heard and decided at a later date. Under the Code of Civil Procedure, a partial judgment may be rendered in only four situations. The pertinent provision is LSA-C. C.P. art. 1915, which reads as follows:

“A final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the plaintiffs, defendants, third party plaintiffs, third party defendants, or in-terveners;
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969;
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969; or
(4) Renders judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in the case.”

The situation presented in this case does not fall within any of the types of situations in which a partial judgment is permitted. The situation that confronted this court in the recently decided case of City of Baton Rouge v. Cannon, 376 So.2d 994 (La. App. 1st Cir. 1979), in which this court affirmed a partial judgment that had been rendered in a concursus proceeding differs from the present situation because in that case the judgment was rendered on a motion for summary judgment, and the quoted article of the Code of Civil Procedure specifically permits a partial judgment to be rendered on motion for summary judgment. The present partial judgment was rendered after a partial trial on the merits. The Codal article does not permit partial judgment in that situation. We can find no other jurisprudential holding that could conceivably be construed to permit the granting of partial judgment in the present situation.

Therefore, the decision of the trial court granting partial judgment in the present concursus proceeding is reversed, and the case remanded to the trial court with instructions not to grant a judgment in the matter until the claims of all claimants are tried and decided.

The assessment of costs for this appeal to await final decision by the trial court.

REVERSED AND REMANDED.


author: ELLIS, Judge:

text:
    MAGEE MOTORS, INC. v. Jerry MORAN.
    No. 13777.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    See also, La.App., 393 So.2d 760.

      Delos R. Johnson, Jr., Johnson & Kuhn, Franklinton, for plaintiff.
    H. Gregory Briese, Seal, Lee, Branch & Brown, Bogalusa, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This case, which is consolidated with the case of Moran v. Magee Motors, Inc., 393 So.2d 760, for trial, arises out of the sale of a truck to Jerry Moran by Magee Motors, Inc., on March 9,1976. Magee arranged for Mr. Moran to borrow $1,500 from Washington Bank and Trust Company for the down payment. The remainder of the price was financed by Parish National Bank, which obtained a chattel mortgage. Shortly after Mr. Moran purchased the truck, he began to have difficulty with it, and brought it in for repairs. At that time, there were just over 2,200 miles on the odometer. It was discovered that the oil pump had frozen up, damaging the engine heavily. After obtaining the authorization of General Motors, Magee installed a new short block on the truck.

In June, 1976, when the truck had over 10,000 miles on it, the engine froze up. At that time, Mr. Moran obtained counsel and tendered the truck to Magee, demanding rescission of the sale and the return of the purchase price plus other damages. The claim was denied on the ground of owner abuse, and these two suits have resulted.

Mr. Moran stopped making payments to Parish National Bank, which foreclosed on the truck. It was purchased by Philip Ray Thomas at the Sheriff’s sale. Magee paid Mr. Moran’s note at Washington Bank.

Magee filed the first suit to recover the amount of the Washington Bank note which it paid, and Moran reconvened, imp-leading General Motors, seeking rescission of the sale, the return of the purchase price and various items of damage consequent thereto. The second suit is by Mr. Moran against Magee and General Motors, seeking the same relief sought in the reconventional demand.

After trial on the merits, judgment was rendered in favor of Magee in the first suit, on the note, as prayed for, and in favor of Mr. Moran on his reconventional demand for certain damages incurred while using a replacement vehicle lent him by Magee. In the second suit, judgment was rendered dismissing Mr. Moran’s demands. He has appealed both judgments.

To prove his redhibition case, Mr. Moran offered his own testimony detailing his difficulties with the truck, and the fact that, in June, it suddenly froze up on him as he was driving it. He offered no expert testimony as to the cause of the difficulty.

The various Magee employees who worked on the truck, and who saw it after it was purchased by Mr. Thomas at the Sheriff’s sale, testified that the crankshaft and two rods were badly burned. Although they found the engine to be full of oil when the truck was brought in, they testified that that type of damage occurs when an engine is run without sufficient oil. No witness found any flaw or defect in the vehicle after it had been repaired the first time.

There is testimony that, at one time, Mr. Moran threatened to drain the oil out of the crankcase of the truck, run it until it was ruined, and then replace the oil. Magee’s witnesses testified that Mr. Moran had been advised that the truck which he purchased was too light for the purpose for which he intended to use it. Mr. Moran denied that he was given any adverse advice relative to the truck.

The trial judge found that Mr. Moran had failed to bear his burden of proof in the redhibitory action.

The plaintiff in a redhibitory action is obliged to prove that there is a latent defect in the thing bought which existed before the sale to him, and which renders the thing useless, or its use so inconvenient that he would not have purchased it had he known of the defect. Articles 2520, 2530, Civil Code. He need not prove his case by direct or expert testimony. He need only show that the thing failed to perform in the intended manner under conditions of normal use. Rey v. Cuccia, 298 So.2d 840 (La. 1974); Neck v. Coleman Oldsmobile, Inc., 356 So.2d 532 (La.App. 1st Cir. 1977).

In this case, plaintiff proved that the engine seized up about 8,000 miles after it had been repaired. Defendant’s witnesses testified that the use to which plaintiff put the truck was beyond its capacity; that it appeared to have been run without oil; and that plaintiff had threatened to do just that to the truck. Under those circumstances we find no manifest error in the trial judge’s finding that Mr. Moran failed to carry his burden of proof in the redhibi-tory action.

Relative to the suit on the note, Magee placed in evidence the note, which was in its possession, but not endorsed or assigned in writing by the bank. Mr. Robert Magee, president of Magee Motors, testified that he had paid the note because of an agreement which he had with the bank, and Washington Bank delivered it to him. However, no written agreement with the bank was produced.

Magee cannot recover on the note as a holder, because it is payable to the order of Washington Bank, and is not endorsed. Nor can it recover as a surety, since a contract of surety must be expressed and cannot be proven by parol evidence. Articles 2278, 3035, 3039, Civil Code; Altex Ready-Mixed C. Corp. v. Employers Com’l U. I. Co., 308 So.2d 889 (La.App. 1st Cir. 1975). There is no conventional subrogation, which must be expressed, in favor of Magee, and no legal subrogation to the bank’s rights against Moran. Arts. 2159 et seq. Civil Code. Therefore, the testimony by Robert Magee, president of Magee Motors, Inc., that he paid the note is not sufficient to establish either title to the note or some other legal relationship which would enable Magee Motors to recover on the note. The judgment in the first case must therefore be reversed insofar as it awards judgment on the note in favor of Magee. However, since it appears that Magee Motors may be able to supply evidence of its ownership of the note, we will dismiss its suit without prejudice. Articles 1673 and 1844, Code of Civil Procedure; Rapides Savings & L. Ass’n. v. Lakeview Develop. Corp., 326 So.2d 511 (La.App. 3rd Cir. 1976).

The last matter raised by Mr. Moran bears on the damage award made on his reconventional demand. While the truck was being repaired the first time, Magee lent Mr. Moran another truck to use in his business of hauling live fish. After Mr. Moran picked up a load of fish, the truck broke down in Jackson, Mississippi, leaving Mr. Moran and the fish stranded. The trial judge awarded Mr. Moran all of the expenses incurred by him in connection therewith except the loss of the fish, which Mr. Moran testified he had to throw away. The trial judge found that Mr. Moran’s testimony as to what he paid for the fish and what happened to them, without further corroboration, was insufficient. Mr. Moran complains of the ruling in this respect.

After a review of the testimony, we find no manifest error in the conclusion of the trial judge in that respect. Mr. Moran’s testimony as to the price he paid for the fish, and as to their ultimate disposition, is vague and imprecise. We cannot say the trial judge was clearly wrong in disregarding it.

In case No. 13,777, the judgment on the main demand is reversed and set aside, and there will be judgment herein in favor of defendant Jerry Moran, dismissing the demands of Magee Motors, Inc., without prejudice, at its cost. In all other respects, the judgment is affirmed.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


author: ELLIS, Judge.

text:
    Jerry MORAN v. MAGEE MOTORS, INC. et al.
    No. 13778.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    H. Gregory Briese, Seal, Lee, Branch & Brown, Bogalusa, for plaintiff-appellant.
    Delos R. Johnson, Jr., Johnson & Kuhn, Franklinton, Henry A. Mentz, Jr., Mentz & Cashe, Hammond, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

This case was consolidated with Magee Motors, Inc. v. Moran, 393 So.2d 757, for trial. For the reasons expressed therein, the judgment herein is affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    John Brock BUNCH v. Sam BOYET.
    No. 13781.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.
    Writ Refused April 6, 1981.
    Ray W. Breland, Jr., Bogalusa, for plaintiff-appellant.
    Ronald J. Brumfield, Franklinton, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a suit to annual tax sale, brought by John Brock Bunch against Sam Boyet. Mr. Boyet reconvened, asking that his tax title be confirmed and quieted. After trial on the merits, judgment was rendered confirming and quieting Mr. Boyet’s tax title, and dismissing plaintiff’s demands. Plaintiff has appealed.

Mr. Bunch was the owner of 43.47 acres of land in Section 12, Township 2 South, Range 13 East, Washington Parish, Louisiana. Mr. Bunch received no tax notice of the 1973 taxes for that parcel of ground, because the address shown on the tax rolls was incorrect. A registered notice was sent to Mr. Bunch, at the improper address, and was returned to the Sheriff of Washington Parish with the notation that the addressee had moved and left no forwarding address. No further effort was made by the Sheriff to locate Mr. Bunch, and his property was duly advertised for sale and was adjudicated to Sam Boyet by tax deed dated May 1, 1974, and recorded on May 15, 1974, in the conveyance records of Washington Parish. This suit was brought within the five-year peremptive period provided by La.Const. Art. 7 § 25.

The record further reveals that Mr. Bunch owned several other pieces of property in Washington Parish, in a different ward from the property sold to Mr. Boyet, and that his correct address was given in the assessments for those properties.

Plaintiff alleges that the tax adjudication to Mr. Boyet is null and void for failure to give proper notice of the sale to him. He contends that the Sheriff is required by law to exercise due diligence in ascertaining the proper addresses of those who have not received the notices required by law, and that, since the proper address was shown for other assessments made to plaintiff, the exercise of due diligence would have disclosed the proper address.

In Sheridan v. Commercial Guaranty & Brokerage Corp., 292 So.2d 317 (La.App. 1st Cir. 1974), we said:

“It is well established that LSA-R.S. 47:2180, and its statutory predecessors, require that notice of delinquency be given a taxpayer before his property may be sold for nonpayment of taxes. It is also well settled that where mailing of such notice is required, and a mailed notice is returned to the tax collector undelivered or unclaimed, it is incumbent upon the tax collector to take additional reasonable steps to notify the taxpayer, and failure of the tax collector to perform this obligation renders a tax sale null and void. Robinson v. Mafrige, 299 La. 376, 86 So.2d 72; Salsman v. Bloom, 172 La. 238, 133 So. 760; Messina v. Owens, 207 La. 967, 22 So.2d 286; Miller v. Cormier, La. App., 16 So.2d 82.”

In the Sheridan case, we also held that there was no duty on the part of a tax debtor to notify the tax collector of a change of address.

In this case, no effort whatsoever was made to ascertain plaintiff’s correct address, which was, in fact, readily available to the tax collector in his own records. There was, therefore, no notice given plaintiff, as required by law, and the tax sale is null and void for that reason.

The judgment appealed from is reversed, and there will be judgment in favor of John Brock Bunch and against Sam Boyet, annulling the tax sale for 1973 taxes, dated May 1,1974, and recorded in COB 249, folio 613 of the records of Washington Parish, purporting to convey “43.57 Acres Part of Fract. SE Vi, Sec. 12-2-13,” and ordering same cancelled and erased from the records of Washington Parish. Defendant shall pay all costs.

REVERSED AND RENDERED.


text:
    Nick PARRINO, Jr. and Mary Parrino v. Debra Hess PARRINO.
    No. 13790.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.
    Rehearing Denied Jan. 26, 1981.

      James R. Coxe, III, Baton Rouge, counsel for plaintiffs-appellants, Nick Parrino, Jr. & Mary Parrino.
    Steven R. Giglio, Baton Rouge, counsel for defendant-appellant-appellee, Debra Hess Parrino.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge.

On December 9, 1976, the following instrument was executed by Nick Parrino, Jr., Mary Parrino, Dennis P. Parrino and Debra L. Parrino:

“In consideration of ONE ($1.00) DOLLAR and other good and valuable consideration the receipt of which is hereby acknowledged paid by “THE CELOTEX CORPORATION, a Delaware Corporation, whose mailing address is P. O. Box 22602, Tampa, Florida 33622, the undersigned do hereby jointly, severally and unconditionally guarantee payment in accordance with said corporation’s terms of sale for all purchases heretofore and hereafter made by
CDS Baton Rouge
Division of American Specialty Corp.
P. O. Box 65287
Baton Rouge, Louisiana 70896
from CRAWFORD DOOR, NORTH AMERICAN DOOR, EDWARDS POWER DOOR, and BUILDERS MANUFACTURING, DIVISIONS OF THE CELO-TEX CORPORATION and further guarantee payment of all indebtedness now existing and owed by said customer to one or more of the said DIVISION(S) OF THE CELOTEX CORPORATION.
“The undersigned expressly waive presentment for payment, notice of nonpayment, default, demand, and notice of protest, and extension or extensions of time of payment granted by DIVISION^) OF THE CELOTEX CORPORATION to said customer.
“It is mutually understood that this is a continuing guarantee and shall remain in full force and effect until written notice of its termination is received by said DIVISION^) OF THE CELOTEX CORPORATION at its address shown above. Notice of acceptance of this guarantee is hereby waived. It is understood that there are no limitations to this undertaking except those expressed herein and after execution no alteration, change or modifications shall be made except by writing signed by the undersigned and the said DIVISION(S) OF THE CELO-TEX CORPORATION.
“The undersigned expressly acknowledge and represent that the sums herein guaranteed are for the use and benefit of said customer in which the undersigned acknowledges a business interest.”

American Specialty Corporation, the principal debtor in the above agreement, became unable to meet its obligations, and Celotex Corporation called upon Nick Parri-no, Jr., and Mary Parrino to pay the account. After negotiation, Nick and Mary Parrino reached the following agreement with Celotex, on November 26, 1979:

“WHEREAS, American Specialty Corporation d/b/a CDS Baton Rouge, has account balances with Celotex Corporation d/b/a Builders Manufacturing and Jim Walter Door on which there is a disputed balance due to accounting and claims of defective materials and workmanship and other matters:
“WHEREAS, Nick Parrino, Jr. and Mary Parrino have a continuing guarantee for the obligation of American Specialty Corporation to Celotex Corporation that in order to settle the dispute between the respective parties hereto, Nick Parrino, Jr. and Mary Parrino have paid this date the sum of Twenty-One Thousand Six Hundred Sixty-six and no/100 ($21,-666.00) dollars by check and agree to pay an additional sum of Sixteen Thousand Two Hundred Fifty and no/100 ($16,-250.00) dollars in full satisfaction of this account in ninety (90) days.
“That Celotex Corporation d/b/a Builders Manufacturing and Jim Walter Door agree to accept the foregoing settlement of this disputed account from its guarantors and agree to release any and all claims it has against Nick Parrino, Jr. and Mary Parrino and American Specialty Corporation when ever this agreement is complied with in full by said guarantors.
“Further, Celotex Corporation authorizes American Specialty Corporation and Nick Parrino and Mary Parrino to collect all account balances of American Specialty Corporation in which Celotex Corporation d/b/a Builders Manufacturing or Jim Walter Door may have a joint interest. Said Celotex Corporation releasing any claims it has to such monies.”

This suit was filed by Nick and Mary Parrino on December 21, 1979, against Debra Hess Parrino for $10,833.00, alleging the above facts and attaching to their petition the above documents. To the petition, Debra Parrino filed exceptions of no cause and no right of action. After a hearing, the exception of no cause of action was sustained and judgment was signed dismissing plaintiffs’ suit. After a new trial was denied, plaintiffs appealed. Defendant has answered the appeal and in addition took a protective appeal as to the failure of the trial court to rule on her exception of no right of action.

The trial judge rendered no written reasons, but, according to defendant’s brief, found that the parties were not bound in solido, and therefore plaintiffs were precluded from recovery by Article 3058 of the Civil Code, which permits a co-surety who has paid the debt to recover from his co-sureties only if he has paid in consequence of a lawsuit against him.

We note, however, that the parties hereto bound themselves “jointly, severally and unconditionally” for the payment of purchases made by American Specialty Corporation. It is clear that this language created a solidary obligation, not only with the principal debtor but among the sureties themselves. Articles 2082, 2088, Civil Code; Johnson v. Jones-Journet, 320 So.2d 533 (La.1975).

In Louisiana Bank and Trust Co., Crowley v. Boutte, 309 So.2d 274 (La.1975), the court said:

“Among the co-obligors, however, bound in solido, the legal relationships may be governed by the rules of suretyship. Both the simple surety and the solidary surety who pay the debt have a right of recourse against the principal debtor. (Citations omitted)
“There are exceptions, and sometimes the relationships among solidary sureties are not governed by the rules of suretyship. A simple surety who pays the whole debt can enforce contribution against the other sureties, but only when he has paid ‘in consequence of a lawsuit instituted against him.’ C. C. 3058. But a solidary surety need not await suit before paying, in order to preserve his right of contribution. There is no reason to require such a delay, since pleas of discussion and division are not available to him.” (Citations omitted)

It seems clear, therefore, that plaintiffs have alleged a cause of action against defendant, and the exception was improperly sustained.

We find no merit in defendant’s arguments that her obligation to plaintiffs is extinguished by confusion and by novation. Neither of those concepts exist in this case.

The judgment appealed from is therefore reversed and set aside, and the case will be remanded to the trial court for further proceedings, in accordance with law. Defendant is granted 15 days from the date on which this judgment becomes final to file her answer.

REVERSED AND REMANDED.


author: CHIASSON, Judge.

text:
    LOUISIANA INSURANCE GUARANTY ASSOCIATION v. Sherman A. BERNARD, Commissioner of Insurance, Etc.
    No. 13826.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1980.

      George Mathews, Charles A. Schutte, Jr., Baton Rouge, for plaintiff-appellee Louisiana Ins. Guaranty Association.
    Robert D. Hamlett, Jr., Louisiana Dept, of Ins., Baton Rouge, for defendant-appellant Sherman A. Bernard, Commissioner of Insurance.
    Gibson Tucker, Jr., New Orleans, for in-tervenor-appellant Regal Ins. Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Sherman A. Bernard, Commissioner of Insurance, defendant-appellant, and Regal Insurance Company, intervenor-appellant, appeal the judgment of the Nineteenth Judicial District Court reversing an order of the Commissioner denying a hearing, rescinding an order of merger and revoking a Certificate of Authority issued by the Commissioner to Regal.

Appellants’ brief does not contain any “specifications of error.” We glean from their argument in brief that they are contending:

(1) The procedures listed in La.R.S. 22:1387 are exclusive to the extent that the Louisiana Insurance Guaranty Association (LIGA) must utilize those procedures before taking any other action;
(2) The discretionary authority to grant or withhold a Certificate reposes on the Commissioner, who is not bound by the findings of one of his financial examiners.

We find no merits in any of appellants’ arguments, including, in addition to those listed above, those dealing with the validity of the merger and of the Certificate issued to Regal.

All of appellants’ contentions were presented to and correctly ruled upon by the District Court. We adopt the well written Reasons for Judgment of the District Court as our own and attach a copy hereto.

The District Judge did not hold that the Commissioner is bound by the findings of his examiners, but rather held that the Commissioner is bound by the law dealing with the issuance of a Certificate of Authority.

We wish to make clear that the situation in this case, the invalidity of a merger order and of a Certificate of Authority, is to be distinguished from that in which a valid Certificate of Authority had been issued and thereafter the LIGA detects the authorized company is in financial distress.

For these reasons and those set forth by the District Judge, the judgment of the Nineteenth Judicial District Court is affirmed at appellants’ costs.

AFFIRMED.

LOUISIANA INSURANCE GUARANTY ASSOCIATION * NUMBER 230,825 DIVISION “M”
VERSUS 19TH JUDICIAL DISTRICT COURT
SHERMAN A. BERNARD, COMMISSIONER OF INSURANCE (APPEAL FROM AN ADMINISTRATIVE HEARING, NUMBER * PARISH OF EAST BATON ROUGE
104 ON THE DOCKET OF THE COMMISSIONER OF INSURANCE) STATE OF LOUISIANA
***********#****#.},* *******************

WRITTEN REASONS FOR JUDGMENT

Petitioner, Louisiana Insurance Guaranty Association (the Association) seeks judicial review of an order of defendant Bernard, Commissioner of Insurance of the State of Louisiana (the Commissioner). It is asserted that the right of review in the Association’s favor is found in La.R.S. 22:1360. If there is a right of review, it is conceded that the proper venue (as provided in the statute) is in the Nineteenth Judicial District Court. La.R.S. 22:1360.

Petitioner commenced this action by the filing of a petition for review, praying for a judgment reversing the Commissioner’s order or in the alternative for a judgment remanding the matter to the Commissioner for further proceedings. Service upon the Commissioner was sought and obtained. No other pleadings were filed.

Upon the day set for hearing of this matter, however, an appearance was made by counsel for Roger Williams Insurance Company, Regal Insurance Company, and Regal Group, Inc., and a “brief in opposition to” the appeal of the Association was filed on the same day.

Following a stipulation by the interested parties that the matter was to be submitted to the court for decision on the basis of the transcript taken in the administrative proceedings before the Commissioner’s representative, the court took the matter under advisement.

Because of the stipulation of the parties (a copy of that stipulation having been filed in the record by the court) and the absence of any responsive pleadings, the court treats the present posture of the matter as one of appeal by the Association, to which no formal answer is necessary.

The case presents issues of both a procedural and substantive nature. The procedural issue, for want of a better term, is one of standing of the Association to provoke a hearing and object to an action taken by the Commissioner. The substantive issue is whether the action taken by the Commissioner was within his authority. The procedural issue necessarily must be disposed of at the outset.

Procedural Issue of Standing

On May 9, 1979, the Association filed with the Commissioner a formal demand for a hearing, for the purpose of challenging the Commissioner’s order of April 10, 1979, approving the merger of Roger Williams Insurance Company into Regal Insurance Company. The Commissioner scheduled a hearing for May 31, 1979.

On the day fixed for the hearing, Regal appeared through counsel and filed various “responsive pleadings,” such as a petition for intervention, an answer and various exceptions. The hearing was not held that day, but was continued until July 27, 1979. In the interim, Regal was permitted to intervene by the Commissioner’s order of July 12, 1979. However, its exceptions of no right and no cause of action were referred to the merits and the other exceptions were overruled.

The hearing scheduled for July 27, 1979, was apparently not held. An evidentiary hearing was held, however, on August 17, 1979, before Louis Jordan, Hearing Officer. Ultimately, the hearing officer ruled that the exceptions of no right and no cause of action were meritorious and sustained them. The date of that ruling was November 6, 1979. On November 30, 1979, the Commissioner signed an order reflecting that ruling. On December 4, 1979, the Association filed the present petition for review.

The interested parties concede that the right of review must be found primarily in the language of La.R.S. 22:1360, which reads in pertinent part:

§ 1360. Review from commissioner of insurance’s order
A. Any person aggrieved on account of any official action or threatened action of the commissioner of insurance, or of his failure to act if such failure is deemed to constitute an act under any provision of this Code, may demand a hearing thereon as provided in R.S. 22:1351, and may have the court review any order of the commissioner of insurance made pursuant thereto. The petition for such review shall be filed only in the district court in and for the parish of East Baton Rouge and shall be taken only from an order refusing a hearing or an order on hearing. Such action may be taken by any person aggrieved by such order refusing a hearing or by such order on hearing.
* * * * * *

The parties also apparently concede that the right to hearing is contained in La.R.S. 22:1351, which appears to have a similar standard:

§ 1351. Hearings
The commissioner of insurance, or any qualified employee of the insurance department designated by him for the purpose, may hold a hearing for any purpose within the scope of this Code as he may deem necessary. He shall hold a hearing.
* * *
(2) Upon written demand for a hearing made by any person aggrieved by any act, threatened act, or failure of the commissioner of insurance to act, if such failure is deemed an act under any provision of this Code, or by any report, promulgation or order of the commissioner of insurance other than an order on a hearing of which such person was given actual notice or at which such person appeared as a party, or order pursuant to the order on such hearing.
* * * * * *

It follows that the right of the Association to ask for a hearing, and its right to ask this court for a review if dissatisfied with the outcome of the hearing, depends upon its characterization as a “person aggrieved” by an act of the Commissioner.

The Association was created by Act 81 of 1970. Act 81 creates the Association as “a nonprofit unincorporated legal entity.” La.R.S. 22:1380. It is given certain mandatory duties, and among its powers is the power to “sue or be sued.” La.R.S. 22:1382(2)(c). Also among its powers in the same portion of the statute is the power to “perform such other acts as are necessary or proper to effectuate the purpose of this Part.” Moreover, La.R.S. 22:1378 provides that the entirety of Act 81 “shall by liberally construed to effect the purpose under ... R.S. 22:1376, which shall constitute an aid and guide to interpretation.”

The purpose referred to, found in La.R.S. 22:1376, is—

“... to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers.”

From these provisions, the court concludes that the Association is clearly a “person” insofar as the Insurance Code is concerned. It would be difficult to conceive of an entity with the power to sue and be sued as other than a person in the legal sense. Indeed, it is not seriously contended that the Association is not such a person.

However, there is serious dispute as to whether the Association is “aggrieved” by the Commissioner’s order of April 10, 1979. This matter cannot be resolved without a passing reference to the substance of the dispute. The Commissioner permitted the merger of Roger Williams Insurance Company with Regal Insurance Company. Roger Williams Insurance Company had apparently been authorized in April of 1977 to write bail bonds in Louisiana, a form of fidelity and surety insurance requiring $1,000,000.00 in capital and surplus. La. R.S. 22:71. Roger Williams was at the time a foreign insurer. In August of the same year, Roger Williams “converted” from a foreign insurer to a domestic insurer, which “conversion” is part of the matter under discussion. At about the same time, Regal Insurance Company was authorized to write only vehicle physical damage insurance, with a minimum capital and surplus requirement of $250,000.00.

The order of the Commissioner permitted Roger Williams to merge into Regal, and authorized Regal to service the obligations of Roger Williams of a fidelity and surety nature. The Association asserts that the merger is invalid for several reasons, primarily that the Insurance Code does not authorize a merger between two such entities and that the merger violates the capital and surplus requirements of La.R.S. 22:71(A) and (B).

It is against this factual background that the court must determine whether the Association is a person “aggrieved” by the Commissioner’s order. The court has uncovered no Louisiana decision in which the phrase has been interpreted in this context, nor have the parties presented any such authority. It is worthy of note, however, that in Brown v. Bernard, 376 So.2d 1034 (La.App. 1st Cir. 1979), the District Attorney of East Baton Rouge Parish, as a plaintiff, challenged the “conversion” of Roger Williams from a foreign insurer to a domestic insurer. The opinion of the appellate court did not contain any discussion of his lack of standing to litigate the issues in question, and the record in the case reveals that the issue was never raised in the trial court. The basis of the District Attorney’s challenge was indubitably the fact that Roger Williams Insurance Company had been certified to write bail bonds, and that the District Attorney had an interest in the solvency of an insurer authorized to write such bonds.

The decision in Brown v. Bernard, though not squarely dealing with the present plaintiff, is instructive on the issue of standing to challenge an order of the Commissioner. The statutes creating the Association reveal that the Association has an interest in the order of the Commissioner at least the equivalent of that of the District Attorney in Brown v. Bernard.

Among other purposes, the Legislature provided that the purpose of the creation of the Association was to “... avoid financial loss to claimants or policyholders because of the insolvency of an insurer” as well as to “... assist in the detection and prevention of insurer insolvencies ...” La.R.S. 22:1376. The Association, to that end, is required to assess member insurers certain amounts to cover insolvencies. La.R.S. 22:1382(l)(c). It is also mandated by the same section to assume the obligations of an insolvent insurer. Other specific duties are placed upon the Association, and it is granted, among other discretionary powers, the power to “perform such other acts as are necessary or proper to effectuate the purpose” of the creating act.

The legislative intent in creation of the Association seems clear. Not only must it attempt to detect and prevent insolvencies, it must be responsible if they occur. It is authorized to take acts “necessary and proper” to effectuate this purpose and others, and the court is instructed to interpret that phrase and the entire act liberally to carry out that purpose. Following these tenets, we must conclude that an entity which must detect insolvencies and answer for them if they occur is “aggrieved” by an order of the Commissioner which might promote insolvency. The gravamen of the Association’s complaint strikes at the heart of potential insurer insolvency: whether the Commissioner has followed the capital and surplus requirements of the insurance code. To conclude that the Association does not have standing to provoke a hearing upon such a complaint is to ignore the clear purpose of the statutes.

It is contended on behalf of Regal Insurance Group in its two-page opposition brief that no section of the insurance code applicable to the Association grants it the authority to do what it seeks to do in this proceeding. There is almost no discussion of the contention, but the court assumes that Regal Insurance Group is relying upon its earlier contentions in the hearing before the Commissioner (Tr. 12-22) that only La. R.S. 22:1387 can be used to define the Association’s authority. Section 1387 begins simply, “To aid in the detection and prevention of insurer insolvencies ...” It proceeds to list a number of things which the board of directors of the Association shall do or may do if it suspects insolvencies. Counsel for Regal infers that the section is exclusive in nature, i. e., that the powers there granted are the only powers which the Association has in the face of suspected insolvency. Unfortunately for counsel’s position, the section does not contain such an expression of exclusivity. And as demonstrated above, a reading of that section with the remainder of the act demonstrates that the powers granted in section 1387 must be supplementary in nature. Were it otherwise, other sections of the act would be rendered meaningless. The interpretation placed upon the act by counsel for Regal is too narrow and would do violence to the express purpose of the legislature in creating the Association.

Though Louisiana opinions have not discussed the meaning of “aggrieved person,” some opinions in other jurisdictions have, and support the interpretation here given. In Mississippi Insurance Underwriting Association v. Standard Products, Inc., 271 So.2d 405 (Miss.1972), the plaintiff Association sought a review of the order of the Mississippi Insurance Commission instructing it to issue a certain policy. The Association appears to be a sort of “assigned risk pool” for certain types of property. It was created by statute and all insurers writing such insurance were mandated to participate and to bear the costs. A prospective insured requested coverage from the Association and was denied, on the ground that the Association felt the risk was beyond the scope of its statutory responsibility. The prospective insured appealed to the Insurance Commission, which ordered the issuance of the policy. The Association’s request for review in the district court was dismissed, and it appealed to the Supreme Court of Mississippi. The issue was whether the Association was a person “aggrieved” by the Commission’s order under Mississippi statutes. The supreme court held that it was, and that it had a right to appeal. The court commented:

If the Association is not a party to an appeal from an order of the Insurance Commission, the question arises, who would be the appellees if the Insurance Commission had upheld the decision of the Association and Standard (the prospective insured) had appealed to the Chancery Court of Jackson County. There would be no insurer because no policy would have been issued, but every property insurer doing business in the state would have a financial interest in upholding the order of the Insurance Commission. It would therefore appear that all property insurers doing business in the state should be named as appellees. Certainly the legislature did not intend any such result. The legislature clearly intended that the decisions of the Insurance Commission concerning matters originating with the Association were subject to judicial review. The logical “person” to appeal this case is the Association who was ordered specifically by name to “provide insurance coverage” to Standard. Absent a clear statutory identification of “persons aggrieved” by the Insurance Commission’s order, we hold that the Association may prosecute the appeal. 271 So.2d at 407.

A similar argument is made against the Association’s petition in the present case. Counsel for Regal argues that since Roger Williams purportedly has never issued any policies, there is nothing about which the Association may complain. But this argument ignores the primary role and concern of the Association, which is to help prevent insolvencies without reference to whether the damaging conduct is already under way or is about to start.

Decisions in other states similarly permitting persons to sue as “aggrieved” by an administrative insurance decision are Massachusetts Association of Independent Insurance Agents and Brokers, Inc. v. Commissioner of Insurance, 367 N.E.2d 796 (Mass.1977) (association of agents and brokers has standing to present their collective objections to mass merchandising plan authorized by Commissioner of Insurance) and Cravey v. Southeastern Underwriters Association, 214 Ga. 450, 105 S.E.2d 497 (1958) (insurance rating organization created by statute to propose rates aggrieved by order of Commissioner of Insurance suspending rates after they had already been agreed upon). See also Couch on Insurance 2d, § 21:16. Indeed, the only decisions discovered in which complaints were dismissed involved persons whose grievances were remote at best, not at all approaching the complaint made by the Association in the present case. Nader v. Altermatt, 166 Conn. 43, 347 A.2d 89 (1974) (consumer advocate Ralph Nader and others without standing to object to purchase of Hartford Fire Insurance by IT&T); Virginia Association of Insurance Agents, 201 Va. 249, 110 S.E.2d 223 (1959) (association representing independent agents not aggrieved by rate-setting decision which included reference to commission to be paid to agents upon sale of policies; decision-making body had no authority over commission to be paid in any event, since this was a matter of private contract between the agents and the companies).

For the foregoing reasons, the court holds that, under the statutes, the Association is a person aggrieved by the order of the Commissioner, and that it has both a right to a hearing by the Commissioner and a right of review in this court of an order issued following such a hearing. It follows that the exceptions of no right and no cause of action sustained by the hearing officer are without merit and are therefore overruled.

The Merits

It is unnecessary to make extended comments about the merits of the controversy. Uncontroverted evidence at the hearing demonstrates that the various statutory requirements needed to support the Commissioner’s order were not followed.

There are two actions of the Commissioner which the Association contests. The first is his approval of the merger between Roger Williams Insurance Company and Regal Insurance, and the second is the certificate of authority issued to Regal to write vehicle physical damage insurance. Both were contained in an order of April 10, 1979.

The Merger

Early in the year 1977, Roger Williams Insurance Company (a foreign insurer) requested a certificate of authority to issue fidelity and surety insurance (bail bonds only). It filed with the Commissioner a balance sheet, with the intention of satisfying the requirements of La.R.S. 22:71 and 22:981. These statutes require of a foreign insurer seeking to write such insurance a minimum total of paid-in capital and surplus of $1,000,000.00. The balance sheet of Roger Williams contained an asset figure of some $1.2 million and was examined by Examiners Robertson and Willis of the Commissioner’s office.

Willis determined, and so advised the Commissioner and so testified at the hearing (Tr. 99-115), that the capital and surplus of Roger Williams was impaired in at least two particulars: (a) an asset of $600,000.00 in preferred stock was shown, a figure in excess of the 2%-of-assets maximum permitted by La.R.S. 22:844(A)(9); and in any event, the stock was valued at $40.00 per share when the Manual of the Securities Evaluation Office of the National Association of Insurance Commissioners fixed its value at $10.00 per share (and Roger Williams’ own annual statement showed it at $18.00 per share). Willis’ conclusion that the capital and surplus requirement had not been met by Roger Williams was presented to the Commissioner. About three months later, the Commissioner issued a certificate of authority to Roger Williams to write “bail bonds only.” There is nothing in the record at the hearing to establish any change in the capital and surplus of Roger Williams in the interim between Willis’ report and the Commissioner’s order. Moreover, there is no evidence in the record to contradict Willis’ testimony. Upon the record, the court must conclude that the capital and surplus of Roger Williams was impaired when its certificate of authority was issued, and the Commissioner’s approval of the certificate was contrary to La.R.S. 22:71 and 22:981.

At this point, Roger Williams remained a foreign insurer and holder of an invalid certificate of authority to write bail bonds in Louisiana. About four months after the certificate was issued (about August 1, 1977), Roger Williams “converted” from a foreign insurer to a domestic insurer. Its “conversion” apparently consisted of amending its articles of incorporation to refer to a Louisiana domicile rather than its previous Rhode Island domicile.

The Insurance Code provides various steps which must be followed in order for an entity to become a domestic insurer. La.R.S. 22:31, 22:35. It also provides for certain payments for capital stock, and ownership of shares by directors. La.R.S. 22:72, 22:81. The record does not reveal that these steps were taken, and the court must conclude that the “conversion” was of no effect. Roger Williams remained a foreign insurer. Indeed, the conclusion of the trial judge in another division of this Court, affirmed by the First Circuit Court of Appeal, is identical on this point, i. e., that the conversion was without legal effect. Brown v. Bernard, 376 So.2d 1034 (La.App. 1st Cir. 1979).

By his order of April 10, 1979, the Commissioner purported to authorize a merger between Roger Williams Insurance Company and Regal Insurance Company. This can be seen in no other light than as the merger between a foreign insurer and another insurer. La.R.S. 22:731 authorizes mergers of domestic insurers under certain conditions and according to certain procedures. La.R.S. 22:732 extends other rights under the Insurance Code to insurers generally or persons purporting to be doing an insurance business here. But the same Section 732 specifically excludes from that general grant of authority mergers under Section 731. It follows clearly that Section 731 cannot be used to permit an insurer other than a domestic insurer to merge with another company. Since Roger Williams was not domestic insurer, there was no authority in the Commissioner to permit its merger with Regal under Section 731. Moreover, to the extent Regal will now service any bail bonds issued by Roger Williams, the merger may violate the requirements of La.R.S. 22:71. Counsel for Regal has not favored the court with citation of any other section under which the merger could be valid. Accordingly, the court holds that the purported merger between Roger Williams Insurance Company and Regal Insurance Company was invalid and it is rescinded.

The Certificate of Authority Issued to Regal

In the order of April 10, 1979, the Commissioner authorized Regal Insurance Company to write vehicle physical damage insurance. The writing of such insurance requires a minimum of $250,000.00 in paid-in capital and surplus. La.R.S. 22:71. The transcript and exhibits made available to this Court do not show that this requirement has been satisfied. Moreover, La.R.S. 22:1028 requires a domestic insurer to deposit $100,000.00 with the State Treasurer in money or governmental bonds prior to the issuance of a certificate of authority. The record and exhibits do not show that this requirement was satisfied prior to the issuance of the certificate. Indeed, the record affirmatively shows that the deposit had not been made in the name of Regal at the time of the hearing (Tr. 197-198).

In light of the evidence, this Court gave Regal Insurance Company fifteen days to comply with the capital and surplus requirement and with the deposit requirement of La.R.S. 22:1028. The Court has received no indication that this has been done.

The Court can only conclude that the certificate of authority issued to Regal Insurance on April 10, 1979, to write vehicle physical damage insurance was invalidly issued and must be rescinded.

Judgment will be signed accordingly.

Baton Rouge, Louisiana, this 2nd day of April, 1980.

/S/Charles William Roberts

Judge, 19th Judicial District Court