author: PER CURIAM..

text:
    STATE of Louisiana v. Andre DONNAWAY.
    No. 81-KA-1389.
    Supreme Court of Louisiana.
    Feb. 3, 1982.
    Rehearing Denied March 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., R. Cody Mayo, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Howard M. Fish, Asst. Indigent Defender, Shreveport, for defendant-appellant.
   PER CURIAM..

Defendant was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After trial by jury on February 3, 1981, he was found guilty as charged. Thereafter, the trial court sentenced him to twelve (12) years’ imprisonment at hard labor. Defendant has now appealed his conviction and sentence to this Court relying on four assignments of error filed below.

We have reviewed defendant’s assignments as they relate to the jury’s verdict and find them without merit. Defendant’s conviction is therefore affirmed. We have also considered defendant’s claim that the sentence imposed by the trial court is excessive and find that it lacks merit as well. Nevertheless, we note that defendant is on probation for a prior misdemeanor conviction and that the trial court in this case has stipulated that defendant’s present sentence is to run consecutively with any other sentence he may receive. In the event of revocation on that prior offense, however, only the court originally granting the suspension of sentence and probation may determine whether defendant will serve the sentences concurrently or consecutively, La.C.Cr.P. art. 901(2); State ex rel. Brantly v. Dees, 388 So.2d 386 (La.1980).

Accordingly, while we affirm defendant’s conviction, we vacate the sentence imposed and remand this case to the trial court for resentencing in accord with the views expressed herein.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Bryan Jerome SHANK.
    No. 82-K-0308.
    Supreme Court of Louisiana.
    Feb. 8, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Jr., Dist. Atty., for plaintiff-relator.
    Richard P. Ieyoub, Skipper M. Drost, Lake Charles, for defendant-respondent.
   PER CURIAM.

Writ granted. The trial court ruling that defendant may proceed to defend himself in this capital murder case is reversed. A defendant has a federal constitutional right of self-representation and may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In the present case, however, unlike Faret-ta, the defendant has no complaint about the competence, diligence or workload of his two court appointed attorneys. Instead, his motivation for electing to represent himself is that he wishes to be found guilty of first degree murder and sentenced to death. In effect, he requests that he be allowed to defend himself because he fears that the lawyers appointed to represent him will be effective advocates and obtain an acquittal or a sentence of less than death. Furthermore, the record reflects that the defendant is 19 years old, has completed eight grades of school, and has a history of mental illness, although he has been found mentally capable of standing trial. Under these circumstances we conclude that the trial court erred in granting the defendant’s request.

When an accused manages his own defense, he relinquishes many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forego those relinquished benefits. Faretta v. California, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta v. California, supra, 422 U.S. at 835, 95 S.Ct. at 2541; Adams v. United States ex rel McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The record in this case does not affirmatively show that the defendant was sufficiently advised and made aware of the dangers and disadvantages of self-representation. Moreover, a defendant’s election to represent himself for the purpose of acquiescing in his conviction of a capital offense and in his death sentence cannot be sanctioned as an intelligent choice.

REVERSED AND REMANDED.


author: LEMMON, Judge,

text:
    STATE of Louisiana ex rel. Larry LAFLEUR v. Jack DONNELLY/Warden Dixon Correctional Institute.
    No. 81-KH-2654.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   Re: Larry LaFleur, applying for writs of Certiorari, Parish of Evangeline, Number 24,243, 24,402, and 24,403.

Granted. Limited to claim that plea of guilty was not knowingly and intelligently entered.

LEMMON, Judge,

concurring.

Relator was apparently misinformed that he would be eligible for parole in two years. However, the entire plea bargain will probably have to be set aside and the matter returned to its pre-plea status, leaving the district attorney free to pursue all charges and the trial judge, in the event of conviction, free to select any sentences within the statutory range.


author: CALOGERO, Judge,

text:
    STATE of Louisiana, ex rel. Rev. Thurman L. CAMPBELL, Jr. v. Carl G. HAMMONDS, Supt. of Caddo Correctional Institute.
    No. 82-K-0137.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In Re: Rev. Thurman L. Campbell, Jr., applying for Writ of Certiorari and Habeas Corpus, Parish of Caddo, No. 119,971 — HC.

Denied.

CALOGERO, Judge,

concurring in the denial.

While defendant was not specifically told at plea by trial judge of right hot to testify, the record reasonably indicates from attorney’s voir dire of jury in defendant’s presence that explanation of the rights “to defendant” preceded his entry of plea.


author: BLANCHE, J.,

text:
    STATE of Louisiana v. William N. NEWMAN, Sr.
    No. 80-K-2575.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re William N. Newman, Sr., applying for writs of certiorari, prohibition, and mandamus. Parish of Ouachita. No. 39396.

Ruling denying motion to quash information for DWI 3 is remanded on ground that the June 8, 1977 conviction for DWI 2 is invalid under State v. Jones, 404 So.2d 1192 (La.1981). Case remanded.

BLANCHE, J.,

would deny as to plea # 1 as it was properly Boykinized. As to plea # 2 this writer would grant and write on issue of whether defendant could under statute waive his right to be present and authorize his counsel to enter plea for him without violating Boykin.

WATSON, J., dissents.


text:
    STATE of Louisiana v. Roy L. MOBLEY.
    No. 81-K-1584.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re Roy L. Mobley, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. 45228.

Granted. The ruling on the motion to quash is reversed; the motion to quash is sustained and the case is remanded. See State v. Jones, 404 So.2d 1192 (La.1981).

WATSON, J., dissents.


text:
    STATE of Louisiana v. John B. PERRYMAN.
    No. 81-K-1375.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re John B. Perryman, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. 45519.

Granted. Ruling of trial judge denying motion to quash set aside. Case remanded to district court for further proceedings. See State v. Jones, 404 So.2d 1192 (La.1981).

WATSON, J., dissents.


text:
    STATE of Louisiana v. Mary J. WRIGHT.
    No. 81-K-1075.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re Mary J. Wright, applying for writs of certiorari, or review. Parish of Ouachi-ta. No. 39915.

Granted. Ruling of trial judge denying motion to suppress two prior convictions reversed. Case remanded to district court for hearing as to whether or not defendant was properly Boykinized in connection with her 1977 and 1979 DWI guilty pleas as required by State v. Jones, 404 So.2d 1192 (La.1981).

WATSON, J., dissents.


text:
    STATE of Louisiana v. William G. SLADE.
    No. 81-K-0982.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re William G. Slade, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Ouachita. No. 45490.

Granted. Trial court ruling reversed. Motion to quash granted. Case remanded for proceedings on first offense DWI charge. See State v. Jones, 404 So.2d 1192 (La.1981).

WATSON, J., dissents.


text:
    STATE of Louisiana v. Van Douglas TAYLOR.
    No. 81-K-0891.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re Van Douglas Taylor, applying for writs of certiorari, prohibition and mandamus. Parish of Lincoln. No. 26010.

Granted. The ruling on motion to quash information charging DWI-3 is reversed on grounds that both prior convictions are invalid under State v. Jones, 404 So.2d 1192 (La.1981). The motion to quash is granted. Case remanded to the trial court, where relator may be tried for DWI-1.

WATSON, J., dissents.


text:
    STATE of Louisiana v. James L. BRITT.
    No. 81-K-0859.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re James L. Britt, applying for writs of certiorari, and review. Parish of Ouachi-ta. No. S-81-885.

Granted. Ruling on motion to suppress evidence of prior conviction is reversed on grounds that both prior convictions were invalid under State v. Jones, 404 So.2d 1192 (La.1981). The case is remanded to the district court, where relator may be tried for DWI-1.

WATSON, J., dissents.


text:
    STATE of Louisiana v. David W. GATES.
    No. 81-K-0858.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re David W. Gates, applying for writs of certiorari, or review. Parish of Ouachi-ta. No. S-81-884.

Writ granted. The judgment overruling the motion to suppress relators conviction for DWI in the 3rd Judicial District Court vacated and set aside as relator was not Boykinized as per State v. Jones, 404 So.2d 1192 (La.1981). The case remanded for further proceedings in accordance with law.

WATSON, J., dissents.


text:
    STATE of Louisiana v. James A. MOORE.
    No. 81-K-0083.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re James A. Moore, applying for writs of certiorari, prohibition, and mandamus. Parish of Oauchita. No. 39684.

Granted. Ruling denying motion to quash information quashing DWI 3 is reversed, and motion is granted on grounds that both earlier DWI convictions were invalid under State v. Jones, 404 So.2d 1192 (La.1981). The case is remanded to the trial court, where defendant may be tried for DWI-1.

WATSON, J., dissents.


text:
    STATE of Louisiana v. Wallace O. MOORE.
    No. 80-K-2114.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re Wallace 0. Moore, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Calcasieu. No. 5827-80.

Granted. Conviction of D.W.I.-2 set aside. Case remanded to trial court, where defendant may be tried for D.W.I.-1. See State v. Jones, 404 So.2d 1192 (La.1981).

WATSON, J., dissents for reasons assigned in dissent, State v. Jones, 404 So.2d 1192 (La.1981).


text:
    STATE of Louisiana v. Jack NOBLES, Jr.
    No. 80-K-2169.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re Jack Nobles, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. M 43713.

Granted. Conviction and sentence reversed and case remanded for trial on DWI, first offense charge. See, State v. Jones, 404 So.2d 1192 (La.1981).

MARCUS, J., would grant the writ.

WATSON, J., dissents.


text:
    CITY OF WEST MONROE v. Larry Wayne GRUBBS.
    No. 80-K-2048.
    Supreme Court of Louisiana.
    Nov. 27, 1981.
   In re Larry Wayne Grubbs, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. 56906.

Granted. The trial court ruling on motion to quash is reversed. The case is remanded for further proceedings. See State v. Jones, 404 So.2d 1192 (La.1981).

BLANCHE, J., would grant the writ and set for argument.

WATSON, J., dissents.


text:
    Oliver J. DONAHUE, d/b/a O. J. Donahue Construction Company v. BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT and the State Licensing Board for Contractors.
    No. 81-C-2762.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Oliver P. Donahue, d/b/a O. J. Donahue Construction Company, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 407 So.2d 421.

Granted. Consolidate with 81-C-2761.


text:
    STATE of Louisiana v. Joseph K. FRANCE.
    No. 81-K-3063.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Joseph K. France, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Jefferson. No. 80-1087.

Granted. Ruling of the trial judge, denying defendant’s motion to quash is reversed and set aside. Motion to quash information for armed robbery granted on double jeopardy grounds. State v. Robertson, 386 So.2d 906 (La.1980), and State v. Vincent, 387 So.2d 1097 (La.1980) are not inconsistent but rather both support the result reached herein.


text:
    Oliver J. DONAHUE, d/b/a O. J. Donahue Construction Company v. BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT and the State Licensing Board for Contractors.
    No. 81-C-2761.
    Supreme Court of Louisiana.
    Dec. 4, 1981.
   In re Stephen Lambert, Contractor, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 407 So.2d 421.

Granted. Consolidate with 81-C-2762.


text:
    STATE of Louisiana v. Romero MACHIAVELLI aka James Billiot.
    No. 81-K-3270.
    Supreme Court of Louisiana.
    Dec. 28, 1981.
   In re Romero Machiavelli aka James Billi-ot, applying for writs of certiorari and stay order. Parish of Orleans. No. 286-233, Section E.

Writ denied. Stay order previously issued recalled and set aside.


text:
    STATE of Louisiana ex rel. Ricky Lynn MURPHY v. STATE of Louisiana.
    No. 81-KH-3301.
    Supreme Court of Louisiana.
    Dec. 28, 1981.
   In re Ricky Lynn Murphy, applying for remedial writs. Parish of Rapides.

Granted. The trial court is ordered to conduct an immediate hearing on defendant’s motion to reduce the amount of bail.


text:
    STATE of Louisiana ex rel. Preston BEARB v. COURT REPORTER 15th JUDICIAL DISTRICT COURT.
    No. 81-KH-2226.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Preston Bearb, applying for writ of mandamus. Parish of Lafayette. Nos. 44062, 42770 and 42541.

Denied.


text:
    STATE of Louisiana ex rel. Eric I. WHITE v. Honorable Frank A. MARULLO, Judge, Criminal District Court, Section “D”.
    No. 81-KH-2018.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Eric I. White, applying for supervisory and remedial writs. Parish of Orleans. No. 275-205.

Denied.


text:
    STATE of Louisiana ex rel. Wallace SMITH v. CLERK OF COURT PARISH OF ORLEANS STATE of Louisiana.
    No. 81-KH-2408.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Wallace Smith, applying for remedial writs. Parish of Orleans. No. 281-331.

Writ denied.


text:
    STATE of Louisiana ex rel. Albert Otis HENRY v. COURT REPORTER 16TH JUDICIAL DISTRICT COURT PARISH OF ST. MARY.
    No. 81-KH-2286.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Albert Otis Henry, applying for writ of mandamus. Parish of St. Mary. No. 109-283.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. John FULFORD v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2490.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re John Fulford, applying for remedial writs or writ of review. Parish of East Baton Rouge. No. 239-885.

Denied.


text:
    STATE of Louisiana v. Paul BIGLANE.
    No. 81-K[A]-2468.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Paul Biglane, applying for remedial writs. Parish of Jefferson. No. 81-838.

Denied.


text:
    STATE of Louisiana ex rel. Randy TUCKER alias Ken Seavey v. Honorable Frank A. MARULLO, Judge.
    No. 81-KH-2527.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Randy Tucker, applying for remedial writ. Parish of Orleans. No. 269-183.

Denied.


text:
    STATE of Louisiana ex rel. Johnny COCKERHAM v. Honorable Rudolph F. BECKER, Judge, Criminal District Court, State of Louisiana.
    No. 81-KH-2688.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Johnny Cockerham, applying for remedial writs. Parish of Orleans. No. 269-437.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Patrick ZENO v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2558.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Patrick Zeno, applying for remedial writs. Parish of St. Landry. No. 31572.

Denied.


text:
    STATE of Louisiana ex rel. Sawyer LEWIS v. CRIMINAL DIST. COURT (SECTION “A”) PARISH OF ORLEANS.
    No. 81-KH-2686.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Sawyer Lewis, applying for writ of mandamus. Parish of Orleans. No. 257-998.

Writ denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Richard ROY v. STATE of Louisiana.
    No. 81-KH-2665.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Richard Roy, applying for remedial writs. Parish of Orleans. No. 285-063.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Gregory SOCKWELL v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-2581.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Gregory Sockwell, applying for remedial writs. Parish of Orleans. No. 250-914.

Denied.


text:
    STATE of Louisiana ex rel. Edward COOK v. CRIMINAL DISTRICT COURT PARISH OF ORLEANS, SECTION “H”.
    No. 81-KH-2635.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Edward Cook, applying for writ of mandamus. Parish of Orleans. No. 249-333.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Donald Joe FORD v. Numa V. BERTEL, Jr., et al. O.I.D.P. Criminal Division.
    No. 81-KH-2801.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Donald Joe Ford, applying for writ of mandamus. Parish of Orleans. Nos. 270-581 and 270-179.

Denied.


text:
    STATE of Louisiana ex rel. Michael DREW v. Jack DONNELLY/Warden Dixon Correctional Institute.
    No. 81-KH-2806.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Michael Drew, applying for writ of mandamus. Parish of Orleans. No. 270-569.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Norman CARROLL v. COURT REPORTER 24TH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON.
    No. 81-KH-2807.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Norman Carroll, applying for writ of mandamus. Parish of Jefferson.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Billy TAYLOR v. CLERK OF COURT, FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO.
    No. 81-KH-2816.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Billy Taylor, applying for writ of mandamus. Parish of Caddo. No. 106-179.

Denied.


text:
    STATE of Louisiana, ex rel. Creola BEZUE v. Johnnie JONES, Warden, Louisiana Correctional Institute For Women.
    No. 81-KH-2829.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Creóla Bezue, applying for supervisory writs of mandamus and habeas corpus. Parish of St. Tammany. No. 84184.

Denied. Moot.


text:
    STATE of Louisiana v. David T. SINGLETON.
    No. 81-K-2835.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re David T. Singleton, applying for writ of habeas corpus and writs of review. Parish of Orleans. No. 251-934.

Denied.


text:
    STATE of Louisiana ex rel. Vernell RICHARDSON v. Charles C. FOTI, Jr., Sheriff, et al.
    No. 81-KH-2851.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Vernell Richardson, applying for writ of mandamus. Parish of Orleans.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Willie Ray WALKER v. STATE of Louisiana.
    No. 81-KH-2865.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Willie Ray Walker, applying for remedial writs. Parish of Caddo. No. 112623.

Writ denied.


text:
    STATE of Louisiana ex rel. Willie TATE, Jr. v. The COURT REPORTER/SECTION “II” 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE.
    No. 81-KH-2868.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Willie Tate, Jr., applying for writ of mandamus. Parish of East Baton Rouge. No. 10-79-182.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Sherman GILLS v. Honorable Frank SHEA, Judge, et al.
    No. 81-KH-2876.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Sherman Gills, applying for writ of certiorari. Parish of Orleans. No. 261-754.

Writ denied.


text:
    STATE of Louisiana ex rel. Evans BROWN v. Bernard J. BAGERT, Judge, Criminal District Court, Parish of Orleans.
    No. 81-KH-2895.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Evans Brown, applying for writ of mandamus. Parish of Orleans. No. 272-734.

Denied.


text:
    STATE of Louisiana ex rel. Bradley David HEBERT v. 14TH JUDICIAL DISTRICT COURT PARISH OF CAMERON.
    No. 81-KH-2979.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Bradley David Hebert, applying for writ of mandamus. Parish of Cameron. Nos. 15036, 15037 and 15038.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Anthony SIMMONS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2815.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Anthony Simmons, applying for writ of habeas corpus. Parish of Tangipa-hoa. No. 42386-B.

Denied. Evidentiary hearing set for February 3, 1982.


text:
    STATE of Louisiana v. Beverly ASPINWALL and Francis H. Aspinwall.
    No. 81-K-2028.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Beverly Aspinwall and Francis H. Aspinwall, applying for writs of certiorari, prohibition, and mandamus. Parish of Tan-gipahoa.

Writ granted. The relator’s conduct was not contumacious. The judgment of the district court is set aside.


text:
    STATE of Louisiana v. Charles MORRIS.
    No. 81-K-3066.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Charles Morris, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 2-81-627.

Writ granted. Defendant’s underlying conviction for the 1980 DWI charge (# 4-80-621) should have been disallowed by the trial court because the minutes do not reflect that defendant was represented by counsel or waived the right to counsel when he entered his guilty plea. Defendant’s plea to the current charge of DWI 3, entered with a Crosby reservation, is set aside and the case remanded to the trial court for further proceedings.

DIXON, C. J., and LEMMON, J. dissent.


text:
    STATE of Louisiana ex rel. Truman McDONALD v. STATE of Louisiana.
    No. 81-KH-2702.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Truman McDonald, applying for writs of habeas corpus, certiorari, mandamus and remedial writs. Parish of Jefferson. Nos. 68558 and 68556.

Granted. Relator’s application transferred to the district court for action.


text:
    STATE of Louisiana ex rel. Joseph RICHEY v. Judge John S. COVINGTON 19th Judicial District Judge.
    No. 81-KH-2650.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Joseph Richey, applying for writ of mandamus. Parish of East Baton Rouge. No. 61990.

Granted: Relator’s writ application is transferred to the District Court for action.


text:
    STATE of Louisiana v. Gary Ray HORTON.
    No. 81-K-3082.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Gary Ray Horton, applying for writs of certiorari, prohibition and mandamus. Parish of Sabine. No. 26072.

Granted. The ruling of the district judge is reversed; the plea of guilty is set aside and the case is remanded.


text:
    STATE of Louisiana v. Wiley Young WILLIAMS.
    No. 81-K-3153.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Wiley Young Williams, applying for writs of certiorari, prohibition and mandamus. Parish of DeSoto. No. 32368.

Granted.


text:
    STATE of Louisiana ex rel. Robert MYLES v. CLERK OF COURT, Hon. Edwin Lombard, Criminal District Court, In and For the Parish of Orleans, State of Louisiana.
    No. 81-KH-2651.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Robert Myles, applying for writ of mandamus. Parish of Orleans. No. 244-742.

Granted in part. Relator is to be furnished a copy of his Boykin transcript in 244-742 A (1974); otherwise denied.


text:
    STATE of Louisiana, ex rel. James Earl WILLIAMS v. The Honorable Frank J. SHEA, Section “G”, Criminal District Court, Parish of Orleans, New Orleans, Louisiana.
    No. 81-KH-0885.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re James Earl Williams, applying for writ of mandamus. Parish of Orleans. No. 235-114.

Trial judge ordered to act on relator’s petition for habeas relief filed in November, 1980. Otherwise, denied.


text:
    STATE of Louisiana v. Malcolm ALEXANDER.
    No. 81-K-1853.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Malcolm Alexander, applying for reconsideration of denied writ. Parish of Jefferson. No. 81-0-1207.

Denied.


text:
    STATE of Louisiana ex rel. Sandy PUGH v. STATE of Louisiana.
    No. 81-KH-3331.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Sandy Pugh, applying for motion for a bond reduction. Parish of Terre-bonne. Nos. 113767 and 113769.

Denied.


text:
    STATE of Louisiana ex rel. James W. SIMMONS v. Honorable Frank SHEA Criminal District Court Section “B”.
    No. 81-KH-1679.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re James W. Simmons, applying for writ of mandamus. Parish of Orleans. No. 267-071.

Denied.


text:
    STATE of Louisiana ex rel. Darrell BARNES v. The COURT REPORTER, SECTION “A” CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-1831.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Darrell Barnes, applying for writs of mandamus. Parish of Orleans. No. 272-556.

Writ denied. Moot.


text:
    STATE of Louisiana, ex rel. Willie Scott THOMAS v. CLERK OF COURT, 16th JUDICIAL DISTRICT, ST. MARY PARISH, FRANKLIN, LOUISIANA.
    No. 81-KH-2004.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Willie Scott Thomas, applying for remedial writs. Parish of St. Mary. No. 108249.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Lawrence C. COLEMAN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2504.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Lawrence C. Coleman, applying for writ of certiorari. Parish of St. Tammany. No. 70071.

Denied.


text:
    STATE of Louisiana v. James WILLIAMS.
    No. 81-K-2779.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re James Williams, applying for supervisory writs. Orleans Parish. No. 251-479.

Denied.


text:
    STATE of Louisiana v. Doris SMITH.
    No. 81-K-2792.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Doris Smith, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Orleans. No. 280-087.

Denied.


text:
    STATE of Louisiana ex rel. Preston BROWN v. Frank C. BLACKBURN, Warden.
    No. 81-KH-2508.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Preston Brown, applying for writ of habeas corpus. Parish of Jefferson. No. 82-819.

Writ denied.


text:
    STATE of Louisiana, ex rel. Shirley F. PRITCHARD v. Johnnie JONES, Warden, Louisiana Correctional Institute For Women.
    No. 81-KH-2727.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Shirley F. Pritchard, applying for supervisory writ of mandamus and habeas corpus. Parish of LaSalle. No. 17226.

Denied. Moot.


text:
    STATE of Louisiana v. James Alton STOKES.
    No. 82-K-0146.
    Supreme Court of Louisiana.
    Jan. 18, 1982.
   In re James Alton Stokes, applying for writs of certiorari, prohibition and mandamus. Parish of Terrebonne. No. 79857.

Denied.


text:
    STATE of Louisiana, ex rel. Thomas E. LA MEAR v. H. Garland PAVY, Judge, Div. “A” 27th Judicial District Court, Parish of St. Landry, State of Louisiana.
    No. 81-KH-3220.
    Supreme Court of Louisiana.
    Jan. 18, 1982.
   In re Thomas E. LaMear, applying for writ of mandamus. Parish of St. Landry. No. 28915.

Denied.


text:
    STATE of Louisiana v. Darryl L. TATE.
    No. 82-K-0110.
    Supreme Court of Louisiana.
    Jan. 19, 1982.
   In re Darryl L. Tate, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 282-121.

Granted. The ruling of the trial judge, of which relator complains, is reversed; the trial is stayed pending further mental or neurological examination of the defendant; the sanity hearing shall be reopened upon a showing by defendant of new or additional-relevant evidence; the case is remanded to the district court for further proceedings.


text:
    Patricia Ford O'BRIEN, et al. v. DELTA GAS INC., et al.
    No. 82-C-0151.
    Supreme Court of Louisiana.
    Jan. 19, 1982.
   In re Helmerich and Payne, Inc., applying for remedial writs, civil district court. Parish of Orleans. No. 80-5067.

Denied.


text:
    STATE of Louisiana v. Jesse M. TREVATHAN.
    No. 82-K-0157.
    Supreme Court of Louisiana.
    Jan. 26, 1982.
   In re Jesse M. Travathan, applying for writ of review. Parish of Terrebonne. No. 112071.

Granted.


text:
    STATE of Louisiana v. William E. JENKINS, Jr.
    No. 82-K-0215.
    Supreme Court of Louisiana.
    Jan. 27, 1982.
   In re William E. Jenkins, Jr., applying for remedial writs. Parish of LaSalle. Nos. 18156 and 18157.

Denied.


author: CALOGERO and LEMMON, JJ.,

text:
    STATE of Louisiana v. Angelo TROSCLAIR, III.
    No. 82-K-0237.
    Supreme Court of Louisiana.
    Jan. 28, 1982.
   In re Angelo Trosclair, III, applying for writs of certiorari, mandamus, prohibition and stay order. Parish of Orleans. No. 282-580.

Denied.

CALOGERO and LEMMON, JJ.,

would grant the writ and order the motion hearing resumed affording defendant relator an opportunity to introduce evidence in rebuttal concerning the knowing and voluntary nature of defendant’s waiver of his right to trial by jury.


text:
    Mary Ann Seligman OHMAN v. John McDaniel OHMAN, her husband.
    No. 82-C-0261.
    Supreme Court of Louisiana.
    Jan. 29, 1982.
   In re John McDaniel Ohman, applying for writ of review, certiorari, prohibition, mandamus and a stay order. Parish of Orleans. No. 76-9806.

Denied.


text:
    STATE of Louisiana v. Sidney TOUSSAINT.
    No. 82-K-0257.
    Supreme Court of Louisiana.
    Jan. 29, 1982.
   In re Sidney Toussaint, applying for supervisory writs and for a stay order. Parish of East Baton Rouge. No. 10-81-664.

Denied.


text:
    STATE of Louisiana v. Timothy WASHINGTON.
    No. 82-K-0256.
    Supreme Court of Louisiana.
    Jan. 29, 1982.
   In re Timothy Washington, applying for writ of certiorari, mandamus, prohibition and stay order. 19th Judicial District Court. Parish of East Baton Rouge. No. 10-81-664.

Denied.


text:
    In re James Norris SCOTT, Applying for Permission to Take the Louisiana Bar Examination.
    No. 82-O-0245.
    Supreme Court of Louisiana.
    Jan. 29, 1982.
   In re James Norris Scott, applying for permission to take the Louisiana bar examination and contingent on passing the examination, to be certified for admission to the Louisiana State Bar Association.

Granted. It is ordered that petitioner be permitted to take the February, 1982 bar examination.


text:
    STATE of Louisiana v. Ramus BENOIT, Jr.
    No. 82-K-0246.
    Supreme Court of Louisiana.
    Jan. 29, 1982.
   In re Ramus Benoit, Jr., applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Calcasieu. No. 14729-81.

Denied, on the showing made.

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


text:
    LOUISIANA STATE EMPLOYEES' RETIREMENT SYSTEM, et al. v. STATE of Louisiana, Through the DEPARTMENT OF JUSTICE and Through the Attorney General William J. Guste, Jr.
    No. 82-C-0258.
    Supreme Court of Louisiana.
    Feb. 1, 1982.
   In re State of Louisiana, through the Department of Justice and through the Attorney General William J. Guste, Jr., applying for supervisory writs. Parish of East Baton Rouge. No. 243478.

Writ denied. Relator may apply for an expedited appeal in the court of appeal.


text:
    Jerry L. COOLEY v. Valerie Van Dyke COOLEY.
    No. 82-C-0130.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Valerie Van Dyke Cooley, applying for supervisory writs of certiorari, prohibition or mandamus. Parish of Beauregard. No. C-337-81.

Writ denied.

MARCUS, J., would grant. LEMMON, J., concurs. Relator may assert claim by appeal.


author: REDMANN, Judge.

text:
    Jose Orlando GARCIA-LOPEZ v. CENTRAL AIR, INC. et al.
    No. 12711.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 29, 1981.
    On Rehearing Feb. 9, 1982.
    David W. Oestreicher, II, Oestreicher & Whalen, New Orleans, for plaintiff-appel-lee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendants-appellants.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment which awarded worker’s compensation benefits for partial permanent disability and for medical expenses. Defendant argues that, notwithstanding that the partial disability claim was timely within La.R.S. 23:1209 because within three years of the last disability payment, the medical claim was not timely because not within one year. We affirm.

The statute, as amended, Acts 1975 No. 583, provides that all claims for payments are barred unless within a year payments have been made (or proceedings begun), but if payments are made, the limitation takes effect one year from the last payment, “except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment.” (Emphasis added.) The quoted provision was added by the 1975 amendment.

This is a case of partial disability, and therefore the limitation of § 1209 “shall not take effect until three years” after the last payment.

Defendant’s argument to the contrary is based on cases decided before the 1975 amendment. Devillier v. Hartford Acc. & Indem. Co., 219 So.2d 338 (La.App. 1 Cir. 1969), writ refused, 253 La. 1087, 221 So.2d 519, held that the payment of medical expenses within the prescriptive period did not interrupt prescription. Prejean v. Travelers Ins. Co., 234 So.2d 527 (La.App. 3 Cir. 1970), writ refused, 256 La. 760, 238 So.2d 531, reasoned that (assuming § 1209 were applicable) a claim for medical expenses (in excess of the statutory limit, under an insurance contract), incurred beyond the prescriptive period after the maximum 400 weeks of wage-replacement had been paid, was not prescribed because some medical payments were made after those 400 weeks. Rowley v. Lumbermen's Mut. Cas. Co., 247 So.2d 135 (La.App. 4 Cir. 1971), writ refused, 259 La. 63, 249 So.2d 203, like DeviUier, held that the payment of medical expenses did not interrupt prescription for wage-replacement benefits (but did interrupt prescription for further medical benefits). None of these cases suggest that medical expenses are governed by a different prescriptive period than the wage-replacement prescriptive period.

Nor is such a suggestion expressed in Wright v. Aetna Life & Cas. Co., 360 So.2d 235 (La.App. 1 Cir. 1978), also cited by defendant. Wright holds only that a claim for total and permanent disability benefits or for loss of a physical function is not affected by the three-year provision of § 1209 for partial disability.

We note that Ancelet v. Moreno's Air Cond., Inc., 331 So.2d 127 (La.App. 3 Cir. 1976), held that payment of wage-replacement benefits interrupted § 1209’s then one-year prescription for medical benefits. That the prescription has been changed to three years “in cases of partial disability” does not invalidate Ancelet’s reasoning. The purposes served by applying § 1209’s prescription to wage-replacement claims (despite intervening medical payments) are not served by applying that prescription to medical claims (despite intervening wage-replacement payments).

We repeat what we deem the 1975 amendment’s express purpose: “in cases of partial disability” the prescription for benefits related to the partial disability, including medical benefits, is three years.

By cross appeal plaintiff asks amendment of the judgment to award attorney’s fees and to fix the amount of wage-replacement benefits on the basis of wages at the time not of the accident but of the ultimate termination of employment almost two years later.

We award attorney’s fees and penalties against the insurer because it had no “probable cause,” R.S. 22:658, to deny the claim even for wage-replacement benefits on the basis of prescription, when R.S. 23:1209’s words as amended in 1975 are so clear. All the “good faith” in the world cannot support a contrary reading of R.S. 23:1209 as amended and therefore cannot supply the required “probable cause” to deny benefits. We believe an appropriate fee would be $2,000, arid the statute sets penalties at 12% of the amount not paid within 60 days of demand.

There is much merit from a humane viewpoint to plaintiff's argument that, in effect, qompensation payments should not be limited to wages at accident time. Not only in plaintiff’s case, but in every disabled worker’s case, two-thirds of wages at accident time may at that time provide an adequate subsistence but can become woefully inadequate in just a few years of the double-digit inflation of recent times. The social purpose of workers’ compensation laws will be to a large extent defeated if some remedy is not afforded. That, however, is a legislative problem far beyond our power to resolve by interpretation of the existing statute. The existing statute specifically declares, at R.S. 23:1021(7), “ ‘Wages’ means average weekly wage at the time of the accident.” We have no authority to provide any other definition, and we therefore affirm the amount of benefits as based on wages at the time of the accident. See also Bonnette v. Travelers Ins. Co., 367 So.2d 1261 (La.App. 3 Cir. 1979).

Amended to award 12% penalty on all compensation payments due but not paid within 60 days of demand and attorney’s fees of $2,000, as against the insurer, and otherwise affirmed.

AMENDED & AFFIRMED.

ON REHEARING

We now agree that there is no showing that as of the filing of this suit on September 16, 1980 defendant acted without probable cause in declining to pay workers’ compensation benefits for an accident two years earlier. Wage-replacement benefits had terminated on plaintiff’s return to work for the same employer less than three months after that accident, and plaintiff was still working for the same employer. Medical benefits had last been claimed and paid over a year and a half before the suit. Defendants were certainly entitled to a determination of causal connection and of the question of whether this was a case of partial disability, whose prescriptive period under the statute is three years rather than one year.

But as of December 8, when those questions were resolved in plaintiff’s favor, the medical expenses should also have been paid, and this suit should not have had to go to trial. The only basis for refusing the medical payments was the plea of prescription, which we hold to be without support under the clear wording of the amended statute. Defendants did not have probable cause, after December 8, 1980, to refuse medical benefits.

We erred, however, in awarding attorney’s fees for all services related to this litigation. We reduce our award to $1,000 as fees for services in collecting medical benefits by the trial and appeal of this lawsuit after December 8, 1980.

Original decree reinstated but attorney’s fees amended to $1,000.

AMENDED.


author: KLIEBERT, Judge.

text:
    STATE of Louisiana In the Interest of Kellie DRISCOLL, a minor.
    No. 12240.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 1982.

      William C. Credo, III, Asst. Dist. Atty., Gretna, for State of Louisiana.
    Wiley J. Beevers, Metairie, for Kellie Driscoll.
    George C. Ehmig, Gretna, for defendants-appellants.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

Based on a child abuse report, the State, with consent of the parents, obtained custody of the juvenile, Kellie Driscoll, for her care and treatment. When the parents failed to abide by the voluntary agreement, in accordance with the provisions of R.S. 14:403 et seq., first a preliminary hearing was held and temporary custody was granted to the State and thereafter, the District Attorney’s office filed a petition requesting the juvenile court to take formal jurisdiction and declare the child to be an abused child in need of care and, accordingly, issue such orders as it deemed necessary for the welfare of the child. The parents and child were informed of their Miranda rights and an attorney appointed to represent the child.

The hearing on the District Attorney's petition was held in September, 1980. The juvenile judge (having been informed of the situation by affidavits and reports) determined that the child had a genuine fear of her father; hence, in the best interest of the child, conducted an “in camera" examination of the child out of the presence of her parents. The “in camera” examination was made part of the record before us. Comparing it to the subsequent testimony of the social worker and the statements by the court, it is apparent the parents were fully informed as to the statements and testimony of the child. Evaluation reports were submitted by Dr. Culver, M.D., Psychiatrist, and by Dr. Klein, Ph.D., Psychologist. At the hearing, the State also showed the parents had refused to subject themselves to the psychiatric treatment ordered by the court at the earlier preliminary hearing. During the hearing the court made the observation that the father had elected to appear at the hearing without an attorney because he had spoken to two of them and for the reasons they gave him, he decided not to hire an attorney. In a colloquy between the trial judge and the child’s father, the father stated he did not obtain an attorney because he could not afford one and was unaware he could have requested assistance from legal aide. Although there was no particular inquiry into the family finances, the record shows the father exhibited diamond rings which he testified were fully paid for and also testified to owning a large boat.

On conclusion of the hearing, the juvenile judge made the following observation:

“The psychiatrist says ‘..., she (the juvenile) can best be described as having a psycho-neurotic disorder with depression, and obsessive sexual concerns relative to the circumstances of living with her father. The sexual preoccupation could lead to sexual deviancy.’ ... the psychiatrist and the psychologist also said to this, ‘this girl is living in a quasi-incestuous relationship with her father.’ Incest is not going on here. It’s almost like going on.’ ... I feel that she’s a victim of abuse and neglect, emotional, moral, physical, sexual. Not sexual in that you had incest with the girl, but in the sleeping arrangements you (father) permitted.”

Accordingly, the trial judge concluded the child was an abused child and in need of care and, therefore, continued the previous temporary custody order which required psychiatric treatment for the child and parents and ordered a review of the case in six months.

The parents employed an attorney and filed this appeal, urging the reversal of the juvenile court’s order because they were deprived of their constitutional right to the confrontation and cross-examination of the child and due to the failure of the State to appoint an attorney for them.

The attorney for the child filed a brief urging the better interest of the child requires the continued maintenance of the trial court’s order. The District Attorney’s office, in its brief and oral argument, urged the right of the trial court to proceed “in camera” under the circumstances of this case and further argued that the State was not required to furnish an attorney to the parents.

The record before us fully supports the trial judge’s finding that the juvenile was an abused child in need of care. The parents created an environment which was counter productive to the normál growth of the child’s mental and emotional well-being. Damage to the child’s well-being cried out for correction. Further, the child had justifiable reasons for and had a genuine fear of her father. Under those circumstances, the trial judge acted properly in conducting the “in camera” examination of the child. The parents were not prejudiced or burdened with an undue hardship. They were well informed of the child’s statements and the testimony and given ample opportunity to introduce contradictory evidence.

We now consider the parents’ contention as to the failure of the State to furnish them with an attorney. In his brief, counsel for the parents contends the trial judge granted permanent custody of the child to the State and placed her up for adoption. A thorough search of the record does not reveal any such action by the court. The actions involved here were neither a quasi-criminal nor a criminal proceeding. Pure and simple, it involved the suffering and endurance of emotional stress and anxiety by a child in an environment created by her parents which required acknowledgment of wrong and treatment of the child and parents to correct it. Unless corrected, the child would sustain permanent injury.

In State of Louisiana, ex rel the minor, Linda Howard, 382 So.2d 194 (La.App., 2d Cir. 1980), in a circumstance where indigent parents requested but were refused appointed counsel by the trial court, the Second Circuit reversed the trial court, but maintained custody in the State pending another evidentiary hearing with appointed counsel. We agree with our brothers on the Second Circuit, that the interest of the parents in the custody and control of their children is an interest or right subject to constitutional protection. We also agree the State’s interest in economy, efficiency and informality in the conduct of juvenile proceedings must yield to the greater interest of society in preserving and protecting family units and parents should not be unfairly deprived of custody and control of their child. In child abuse and neglect proceedings, however, we believe the paramount interest must be the well-being and welfare of the child. In so believing, we are not unmindful of the fact that the care of the State cannot and never will be a substitute for the love and affection of loving parents.

In reaching its decision, the Second Circuit pointed out that in its review of decisions in other jurisdictions which reached the same result as they, some of these courts had held that the right to appointed counsel should be determined on a case by case basis. Other courts have held that under a statute providing for the State to take custody for a reasonable time in an emergency threatening the welfare, health or safety of the child, it was not necessary to appoint counsel for the parents. Additionally, we note the holdings of the United States Supreme Court in the recent case of Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). There the United States Supreme Court found it unnecessary to appoint counsel where the State was granted permanent custody because of the particular facts involved there.

Here, the father had led the court to believe he would obtain private counsel and never requested appointment of counsel. Further, there is some indication the father was not in fact an indigent and hence not entitled to appointment of counsel. Under the circumstances of this case, and since it had not proceeded to the point where the State sought to remove permanent custody of the child from the parents and the trial court ordered periodic review, the trial judge did not err in failing to appoint counsel for the parents. Accordingly, the trial judge’s ruling is affirmed.

AFFIRMED.

      . Cleaver v. Wilcox, 499 F.2d 940 (U.S.Ct. of App. 9th Cir. 1974).

      . State ex rel LeMaster v. Oakley, 203 S.E.2d 140 (W.Va.1974).


text:
    Cynthia Bordelon SIERRA-MELENDEZ v. Senora Brown, wife of/and Dalton BROWN, Department of Highways of State of La., the Parish of Jefferson of State of La., through its Department of Roads and Bridges, Rita M. LeBlanc, wife of/and Lloyd J. LeBlanc, & Jenny Crabtree, wife of/and Amos H. Crabtree.
    No. 12244.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 1982.

      Frank Bruno, Jerry J. Blouin, Bruno, Bruno & Blouin, New Orleans, for plaintiff-appellant.
    Gerard M. Dillon and Georges M. Le-grand, Dillon & Cambre, New Orleans, for defendant-appellee.
    George P. Hebbler, Jr. and Emile L. Turner, Jr., Turner & Young, New Orleans, for defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

Plaintiff, Cynthia Bordelon Sierra-Melendez, (hereafter Sierra-Melendez) sued the Parish of Jefferson; the Department of Transportation, State of Louisiana; Lloyd and Rita LeBlanc; Jenny and Amos Crab-tree and Walton and Señora Brown for personal injuries arising out of a collision between an automobile being operated by plaintiff and one being operated by Señora Brown, which occurred on September 28, 1978 at the intersection of Randolph Street and Ames Boulevard, in Marrero, Parish of Jefferson. The intersection where the collision occurred is a “T-Intersection” at which the western tip of Randolph Street running east to west and forming the leg of the “T” intersects Ames Boulevard which runs north and south.

The crux of plaintiff’s alleged cause of action is stated in Paragraph VI of the original petition and Paragraph IV of the amended petition which read as follows:

VI. (Original Petition)
Immediately prior to this collision, which occurred at a time of day close to total darkness, defendant Señora Brown was traveling at a high rate of speed, without her lights on, in the far right lane of Ames Boulevard, and proceeding in a northerly direction. Defendants Rita M. LeBlanc, wife of/and Lloyd J. LeBlanc maintain a fence on their property at the corner of Randolph Street and Ames Boulevard, and they as well as defendants Jenny Crabtree, wife of/and Amos H. Crabtree have bushes, trees and shrubs growing out of, or near their backyards, which obscured the vision of petitioner as she looked to the left down Ames Boulevard to see oncoming traffic. The Department of Highways of the State of Louisiana, and the Parish of Jefferson of the State of Louisiana, through its Department of Roads and Bridges, failed to properly maintain, trim, or remove these trees, bushes and shrubs in such a manner as to allow motorists turning onto Ames Boulevard from Randolph Street a clear and unimpeded view of northbound traffic on Ames Boulevard.
IV. (Amended Petition)
When petitioner arrived at the intersection of Ames Boulevard and Randolph Street she stopped in obedience to a stop sign controlling traffic on the inferior street, Randolph Street, said stop sign being located several feet before the intersection of Ames Boulevard and Randolph Street, and looking to her left and right saw that her view of Ames Boulevard to her left was blocked by bushes, trees and shrubs growing at the left of the intersection and totally blocking her view of traffic travelling down Ames Boulevard to her left. Petitioner, finding herself unable to safely proceed into the intersection, edged forward cautiously, attempting to view traffic on Ames Boulevard, blocked now not only by trees and shrubbery growing in such manner as to continue to block the view, and further, but also by another tree down Ames Boulevard which blocked her view yet further. As petitioner cautiously edged further into the intersection attempting to gain a view of traffic on Ames Boulevard to her left allowing her to proceed safely into the traffic, now found herself in a position of peril from which she could not extricate herself. Plaintiff avers that she was proceeding with extreme caution due to the circumstances, being caused apprehension for her safety and that of her guest passenger, her mother.

After showing it had no maintenance obligation at the intersection, the Department of Transportation was dismissed from the suit on a motion for summary judgment. An exception of no cause of action filed by the Parish directed towards the petition as amended, i.e., containing the above quoted allegation IV, was denied. Thereafter, the Parish of Jefferson and the LeBlancs filed a motion for a summary judgment. Depositions taken of the plaintiff and her mother were filed in the record in support of the motion for summary judgment. The movers in the dismissal motions contended that under the facts shown the plaintiff was contributorily negligent and, hence, as a matter of law could not recover from them. After a hearing, without assigning written reasons, the trial judge granted the motion for summary judgment, thus dismissing the Parish and the LeBlancs from the action. Plaintiff appealed.

The legal issues involved here are the same as that involved in Pepitone v. State Farm Mutual Insurance Co., 369 So.2d 267 (La.App., 4th Cir. 1979), writ denied La., 371 So.2d 1343, and in Clements v. Allstate Insurance Company, 383 So.2d 1375 (La.App., 4th Cir. 1980), writ refused La., 385 So.2d 793. However, the facts upon which the trial judge predicated his dismissal here are different from the facts of both of these cases. In Pepitone, supra, the landowner was dismissed from the action because the facts showed no obstructions were on or emanated from the landowners’ property. Since the landowners had no duty to remove obstructions located within the road right of way, he was, as a matter of law, entitled to be summarily dismissed from the suit. As to the Parish, the critical issue was whether under the undisputed facts of the case the intersection with an obstructed sign, as a matter of law, constituted a trap to the motorist who approached the intersection on the unfavored street. After an analysis of the existing jurisprudence, this court held that an obstructed stop sign at a neighborhood intersection of two streets of equal dignity did not as a matter of law constitute a trap and, hence, summarily dismissed the Parish from the suit. The court’s ruling was predicated on the conclusion the Parish did not have a duty to warn a motorist approaching every intersection which was or appeared (due to an obstructed stop sign) to be an uncontrolled intersection that he could not enter the intersection without first ascertaining that it was safe to do so. Thus, the factual issue involved in Pepitone was the obstruction of the stop sign, not the view of the traffic flow at the intersection.

In Clements, supra, this court reversed two previous jury decisions. In doing so, it stated the basis for the reversal was an error of law rather than one of fact because the jury failed to apply the standard of care required of a motorist entering the favored street from an unfavored street. The plaintiff in Clements was operating his vehicle on the favored street. The question on liability, however, turned on whether the motorist on the unfavored street did that which he was required to do before entering the intersection. Upon reaching the stop sign at the intersection with the favored street, the motorist brought his vehicle to a stop abreast of the stop sign. At that point, his view of the traffic flowing on the favored street was obstructed by vehicles parked on the side of the favored street. Hence, before entering the intersection, he got out of his car, walked into the intersection, looked for oncoming traffic and seeing none, returned to his car and proceeded at a crawl into the favored street. Under those facts, this court held that the motorist’s failure to move his car to the point in the intersection where it could be protected by the parked cars on the favored street and then stop and look before proceeding into the favored street was a breach of his duty to exercise due care in entering the intersection from the unfavored street into the favored street. Thus, the factual issue involved was the manner in which the motorist entered the favored street upon being confronted with an obstruction of view at the intersection.

Although the legal issues in Pepi-tone arose on a motion for a summary judgment and the legal issues in Clements arose after a trial on the merits, in neither case was there a factual issue as to the nature, extent and/or location of the obstructions at the intersection or as to the method in which the motorist on the unfavored street proceeded into the favored street. The relevant facts in both cases were undisputed. The legal issue in both cases turned on the facts because neither the bordering landowners or the Parish are liable strictly because the intersection has obstructions which block the view of the traffic flow on the favored street. Likewise, the motorist using the intersection is not liable or contributorily negligent strictly because he is entering a favored street from an unfavored street.

Barring a specific governmental statutory or regulatory provision against the utilization of their property in the manner utilized, the landowner bordering the public road right of way owes no duty to the motorist using the roadway. The governmental agency, however, charged with the design and maintenance obligation of the roadway, owes a duty to the motorist that the roads will be reasonably safe for use by a motorist exercising due care. Wilson v. State of Louisiana, 364 So.2d 1313 (La.App., 3rd Cir. 1979). Whether the motorist exercised due care or whether the conditions of the highway (including obstructions at an intersection) is actually dangerous and hazardous to a prudent motorist is factual. Besnard v. Department of Highways, 381 So.2d 1303 (La.App., 4th Cir. 1980); Oliver, et al. v. Parish of Jefferson, et al., 408 So.2d 275 (4th Cir. 1981).

The legal issue in the present case must also turn on the factual issues, for there is no strict liability on the part of the landowners or the Parish, nor is the plaintiff-motorist contributorily negligent strictly because he knowingly moved from an unfavored street into a favored street. Crucial to a decision on the legal issues are the facts as to the nature, extent or location of the obstructions at the intersection as well as the facts as to the manner in which the plaintiff-motorist moved from the unfavored street into the favored street. Only after these are known can it be determined whether the collision would not have occurred “but for” the obstruction or “but for” the lack of due care by the motorist or “but for” the. obstruction and lack of due care.

The petition here alleged the intersection was obstructed by trees, bushes and shrubs growing at the intersection without specifying whether the trees, bushes or shrubs were located on the public right of way or on the landowners’ property. In her deposition the plaintiff stated the obstruction at the intersection was caused by trees, grass, signs, bushes and a fence. Further, she stated that she stopped at the stop sign in the intersection, and then stopped and creeped into the intersection at a slow rate of speed. On reaching a point past the stop sign, where the front of her car protruded into the roadway, and she had cleared the corner, she again came to a stop and at that point she could see up the favored street (Ames Blvd.) only three houses down, because a tree located at that point blocked her vision. Upon reaching a point midway into the intersection, she could see lights about a mile up the intersection, but denies ever seeing the vehicle which struck her. The plaintiff’s mother stated in her deposition that her daughter stopped several times while creeping out into the intersection. After her vehicle was out in the intersection, she could see the lights of a car about four blocks away. She denies this was the same car which collided into the vehicle in which she was riding.

There is a conflict in the statements of the mother and of the daughter as to the distance between the landowners’ apparent property line and the edge of the pavement. Further, although it is apparent there are obstructions at the intersection, the testimony of the plaintiff and her mother contained in the deposition is not sufficient for us to determine the cause of the collision. From the meager facts presented we cannot determine which, if any, of the obstructions at the intersection were the cause in fact of the accident or if the accident was caused in fact by or contributed to by the manner in which the plaintiff-motorist moved from the unfavored street into the favored street. There is, therefore, still a genuine issue of material facts; hence, the Parish and the LeBlancs are not entitled to be summarily dismissed from the suit.

Accordingly, the ruling of the trial court is reversed. All costs of the appeal to be borne by the movers in the summary rule.

REVERSED.


text:
    Mary RASBURY, wife of Joseph Roger Baudier v. Joseph Roger BAUDIER.
    No. 12253.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 1982.
    Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for plaintiff-appellant.

      Evangeline M. Vavrick, New Orleans, for defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

Mary Rasbury Baudier (hereafter the wife) and Joseph Roger Baudier (hereafter the husband) were divorced and entered into a community property settlement. The community, according to the Baudiers, consisted of the family home, its contents, boat, car and various life and burial insurance policies. No mention of a serviceman’s retirement pension was made in the settlement. More than five years after the settlement, the wife filed suit for an accounting on and the partition of the military service pension. The husband filed an exception of prescription which was upheld by the trial court. On an appeal, 370 So.2d 659 (1979), this court reversed the trial court’s ruling on the exception of prescription and remanded the case for further hearing. Following the hearing on the merits, the trial judge dismissed the wife’s claim and discharged the husband from any further accounting. The wife brought this appeal. She assigns error to the trial judge’s finding that the military retirement pay was considered in arriving at the community settlement but omitted from the Act of Partition because of a waiver by the wife. Further error is assigned to the trial court holding that the Federal Supremacy clause, Article VI, Clause 2 of the United States Constitution prohibited the application of the Louisiana Community Property Laws to the husband’s military retirement pension. We find no manifest error in the trial judge’s ruling.

On the hearing on the merits, the trial judge found the following relevant facts as to the retirement pension:

“On January 2,1941, Mr. Baudier enlisted with the U. S. Navy Department. Upon serving some twenty-two (22) years, eleven (11) months and one (1) day of active duty — twenty-one (21) years of which the litigants herein were married, Mr. Baudier retired from the Navy on December 2, 1963. He was thereafter transferred to the retired list of the U.S. Navy/Naval Reserve effective January 1, 1971.
Since January 1964, Mr. Baudier received his monthly navy retirement benefits. The said military service pension plan was not a contributory one in which deductions were made from the serviceman’s salary or in which matching funds were made by employer/employee. Rather, one had to be enlisted in the navy for some twenty (20) years in order to obtain retirement benefits. The navy retirement had no cash surrender value at dissolution of the community nor has it any present cash surrender value; the said pension ceases upon the retirant’s death.”

Ms. Vavrick, the notary who effected the original partition agreement testified that the retirement pension was discussed and considered; but omitted from specific mention in the act of partition because it had no cash surrender value and they did not want the agreement to be subject to attack on the grounds of lesion.

From the evidence submitted at the hearing, the trial judge concluded that the husband and wife were aware of the husband’s military retirement benefits, had discussed same with their respective attorneys and it was not included in the final settlement agreement because it had no cash surrender value. He concluded, therefore, that the failure to mention the retirement pay in the settlement agreement was not a mutual oversight, but rather, a waiver on the wife’s part to have it included in the act.

There is ample evidence in the record to support the trial judge’s finding of facts and his conclusion that the military retirement pension was discussed and omitted from the act of partition for a specific reason rather than as an oversight. However, assuming arguendo that he might be found in error in those conclusions, the trial judge went on to support the reasons for his ruling with an analysis of the legal issue involved in the United States Supreme Court’s holding in Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979).

These same legal issues were involved in DeDon v. DeDon, 390 So.2d 937 (La.App. 2nd Cir. 1980). There the wife relied on an earlier line of jurisprudence holding military retirement pay was subject to Louisiana community property laws. Since the trial judge in the DeDon case had written comprehensive reasons for following the United States Supreme Court ruling in the Hisquierdo case and the Alaskan Supreme Court case, Cose v. Cose, 592 P.2d 1230 (Alaska 1979), rather than this earlier line of jurisprudence, our brothers in the Second Circuit adopted the trial court’s reasons for judgment as their own. Likewise here, we are favored with a scholarly discussion by the trial judge of the legal issues in the Hisquierdo case. Hence, in affirming him, we adopted his reasons which follow as our own:

“Mr. Baudier relies upon Hisquierdo v. Hisquierdo, [439 U.S. 572,] 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), which held that the Railroad Retirement Act of 1974, 45 U.S. C.A. § 231 et seq. precluded a spouse’s community property claim to her former husband’s retirement benefits. The Court therein held that California community property law impermissably conflicted with the interests of Congress in drafting the Railroad Retirement Act, thereby precluding the state court from recognizing or awarding the wife an interest in the husband’s expected benefits under the aforesaid Act. The Supreme Court reasoned that to order the husband to pay his former spouse part of his benefits, or any offsetting award recognizing her interest in the benefits would be an undermining of the anti-attachment provision of the Act, 45 U.S.C.A. § 231m, which exempts such benefits from legal process, except for satisfaction of the legal obligation for child support or alimony. Social Security Act, 42 U.S.C.A. § 659.
Hisquierdo, supra, has had an impact on state jurisprudence elsewhere, although not specifically in Louisiana to date. In Cose v. Cose, 592 P.2d 1230 (Alaska 1979), the Supreme Court of Alaska held that an ex-wife’s claim to her former husband’s army retirement benefits had no merit since the federal supremacy claim prohibited the application of state community property laws to military retirement plans.
More particularly, this Court notes that Sec. 1450 of the military Survivor Benefit Plan contains an anti-attachment and anti-assignment provision similar to Sec. 231m of the Railroad Retirement Act, which the U.S. Supreme Court so heavily relied upon in Hisquierdo, supra. The Supreme Court of Alaska, in Cose, supra, found the legislative intent of the military retirement provision to be similar to the Congressional intent of the railroad statutes.
This Court concludes therefore that the Hisquierdo decision is controlling here, and, therefore, holds that the military service pension at bar would not be an asset of the community of acquets and gains accumulated by the Baudiers, assuming arguendo that it had been deleted from the Act of Partition and Community Property Settlement which was executed by them herein.”

The husband made no contribution to the retirement plan involved here. Hence, appellant’s alternative argument for reimbursement to the community based upon the use of community funds for pension contributions is not applicable.

Accordingly, the judgment of the trial court is affirmed. All costs to be borne by the appellant.

AFFIRMED.

      . Swope v. Mitchell, 324 So.2d 461 (La.App. 3rd Cir. 1975) Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir. 1977)


author: GULOTTA, Judge. REDMANN, Judge, BARRY, Judge,

text:
    Mary GONZALEZ and Ronald Peters v. Dennis E. LOCKETTE and ABC Insurance Company.
    No. 12233.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 18, 1982.
    Roy J. Di Vincenti, III, New Orleans, for plaintiffs-appellees.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for defendants-appellants.
    Bienvenu, Foster, Ryan & O’Bannon, John W. Waters, Jr., New Orleans, for in-tervenor-defendant in reconvention-appel-lee (Trinity Universal Ins. Co.).
    Before REDMANN, GULOTTA and BARRY, JJ.
   GULOTTA, Judge.

In this intersectional accident case, defendant-driver, Dennis E. Lockette, and his insurer appeal from a $75,000.00 lump sum jury verdict in favor of plaintiff-driver, Mary Gonzalez, for damages sustained in the accident. Both liability and quantum are in issue. We affirm.

The collision occurred on August 16,1977, at the intersection of S. Galvez Street and Tulane Avenue in the city of New Orleans. Tulane Avenue is a six-lane neutral ground thoroughfare with three traffic lanes heading toward the river and three lanes heading toward the lake. S. Galvez is a four-lane avenue with a neutral ground separating two lanes of traffic. The intersection is controlled by traffic lights.

Citing inconsistencies in the testimony, defendants contend the jury erred in awarding a judgment in favor of plaintiff. Defendants further argue that the jury erred in finding causation between plaintiff’s ruptured L5/L6 disc and the automobile accident. According to defendant, a subsequent, unrelated hospital accident in July, 1978 caused Mary Gonzalez’s ruptured disc, if indeed she suffered from a disc problem.

In answer to the appeal, plaintiff seeks an increase in the $75,000.00 award.

LIABILITY

On August 16,1977, at approximately 12:30 p. m., the defendant vehicle driven by Dennis Lockette was traveling in the center lane on Tulane Ave. toward the central business district. The Gonzalez vehicle driven by plaintiff was traveling in the right lane of S. Galvez St. toward Poydras and approached the intersection of Tulane and Galvez from defendant’s left. Both cars were traveling approximately 25 mph at the time of collision. The crucial question for the jury was the determination of who was favored with the green light at the time of the accident. Each driver claimed the other had entered the intersection on a red light.

Lockette testified that he was favored with a green light when he entered the Galvez intersection. He noticed plaintiff’s vehicle coming from his left just before reaching the intersection and slammed on his brakes but was unable to avoid the collision. According to Lockette, there were no cars ahead or behind him and there was nothing to obscure his vision of the traffic lights. The front of his vehicle struck the passenger side of plaintiff’s car. His version of the accident was corroborated by his wife’s testimony.

Another witness corroborating the Lock-ettes’ version of the accident was Perry McGee. He testified that while riding as a passenger in a truck traveling on Galvez in a direction opposite to plaintiff’s vehicle, he was stopped at a red light on Galvez on the Poydras side of Tulane Ave. and saw plaintiff’s vehicle enter the intersection on a red light and collide with defendant’s vehicle, favored with a green light on Tulane.

Mary Gonzalez testified, on the other hand, that as she approached the intersection of S. Galvez and Banks Streets, a short block before Tulane Ave., the traffic lights at the corners of Tulane and Galvez and Banks and Galvez, were red for Galvez traffic. She slowed for the light at Galvez and Banks but had not brought her car to a stop when the light at Tulane and the one at Banks both turned green in her favor. As she entered the intersection at Tulane and Galvez, while favored with the green light, Gonzalez noticed cars on Tulane Ave. lake-bound and a car riverbound stopped in obedience to the red light for Tulane. She did not see defendant’s car until it was “right up on her”, and she was unable to accelerate or brake to avoid the collision. Ronald Peters, a passenger in the Gonzalez vehicle, corroborated plaintiff’s version of the accident.

Another witness, Alvin Kennedy, who observed the collision from a store window on the corner of Tulane and Galvez, stated that the traffic light at Tulane had turned orange as the defendant vehicle approached the intersection and that the Lockette vehicle “speeded up and tried to make the caution light.” Kennedy testified that when Lockette entered the intersection the light was red for him and that he “ran” the red light. According to Kennedy, plaintiff’s vehicle did not enter the intersection prematurely.

Joseph Hughes, a cab driver, testified that while headed on Tulane in the direction opposite to defendants’ vehicle, he stopped for a red light at Galvez and Tulane. While stopped at the light and talking to a passenger, Hughes heard the crash. He testified that the light was red in his direction both before and after the impact.

Similarly, Lionel McGee testified that he was a passenger in a truck traveling on Galvez toward Canal St. in a direction opposite to plaintiff. After crossing Tulane and Banks Streets on lights green for Galvez traffic, he heard the crash. Though he did not see defendant’s car, he had noticed plaintiff’s vehicle stopped for a light at the intersection of Galvez and Banks before the accident. He also stated that as he crossed Tulane, the traffic on Tulane to his right heading lakebound opposite to defendants’ vehicle was stopped.

This testimony and evidence considered, we cannot say the jury’s finding of defendants’ liability was manifestly erroneous or clearly wrong. See Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Plaintiff’s testimony that she was favored with a green light as she crossed the intersection finds support in the testimony of her passenger and three other disinterested witnesses, Kennedy, Hughes and Lionel McGee. This testimony provides a substantial factual basis for finding defendant negligent and plaintiff not contributorily negligent. Although, as pointed out by defendants, certain inconsistencies existed in the testimony of plaintiffs witnesses, these discrepancies were apparently not of such significance in the jury’s mind to defeat plaintiff’s version of the accident. When we consider the inconsistencies, we cannot say that the jury erred in finding liability or that its verdict was not supported by “credible” evidence. Harrison v. Howell, 384 So.2d 464 (La.App. 4th Cir. 1980).

CAUSATION

Following the accident on August 16, 1977, plaintiff had complaints of neck, back and leg pain. After hospitalization on six occasions and diagnosis and treatment by four physicians, on September 13, 1978 Gonzalez underwent a lumbar laminectomy with the removal of a herniated L5/L6 disc.

It is defendants’ contention that the ruptured disc was caused by a hospital fall on July 7,1978, and not by the August 16,1977 automobile accident. According to defendants, the automobile accident caused nothing more than an aggravation of plaintiff’s pre-existing lumbar strain from an industrial accident predating the automobile accident from which plaintiff recovered by February, 1978. Accordingly, defendant argues that any award due plaintiff should be based, at most, on a six-month recovery period from August, 1977 until February, 1978. We disagree.

On June 9, 1977, before the automobile accident, plaintiff fell at work and was taken to Ochsner Hospital, treated and sent home to rest for a few days. Subsequently she was terminated by her employer, Union Carbide, for the reason that she was physically unable to do her job as a production technician.

On June 23, 1977, plaintiff saw Dr. John E. Lindner, a general practitioner, for injuries sustained in the June 9 fall. Her complaints were of neck, back and left leg pain. Dr. Lindner’s diagnosis was muscular, skeletal sprain, lumbar sprain and contusion of the left leg. He prescribed conservative treatment, including ultrasound therapy, pain pills and muscle relaxants. Plaintiff was seen again by Dr. Lindner on eight occasions between June 30 and August 16. Her pain persisted and her treatment continued during that time.

Dr. Lindner referred plaintiff to Dr. Ralph A. Gessner, an orthopedist, who saw her initially on June 29,1977. Dr. Gessner’s examination indicated soft tissue injury without evidence of fracture or dislocation. This doctor was of the opinion that plaintiff had sustained an acute strain of the neck and lumbar spine. On an August 12, 1977 visit, he found spasm of the lumbar musculature and advised plaintiff to continue diathermy and medication prescribed by Dr. Lindner.

After a scheduled visit with Dr. Lindner on the morning of August 16, 1977, the automobile accident occurred. Plaintiff was taken to Mercy Hospital where she was seen by Dr. Gessner. No fracture or dislocation was found at that time. Plaintiff remained in the hospital for two days on this occasion.

Upon readmission on August 18, 1977 for a female disorder, plaintiff was examined by Dr. Raeburn C. Llewellyn, a neuro-sur-geon, at the request of Dr. Lindner. Plaintiff’s complaints were of pain in the neck, low back area and both arms and legs. Again spasms but not fractures were found in the neck and low back areas. Conservative therapy was prescribed.

After release from the hospital on August 23, 1977, plaintiff was seen on August 30, and September 2 by Dr. Gessner. He found tenderness and spasm in the neck and lumbar areas and restricted motion. He also conducted a pinprick test that was suggestive of nerve root involvement or, some nerve disturbance. His findings indicated the possibility of a ruptured disc. Plaintiff was admitted to the hospital on September 13, 1977. A myelogram on September 20 was normal without evidence of pathology.

After continued visits to Dr. Lindner and Dr. Gessner, plaintiff was examined again by Dr. Llewellyn on November 7,1977. Dr. Llewellyn felt her complaints could be related to a sprain and not associated with a disc rupture. Again conservative treatment was prescribed. Dr. Lindner admitted her to the hospital again on November 16, 1977 with continued complaints of pain.

An “EMG” test administered during the November hospitalization was normal. Plaintiff also underwent a discogram administered by Dr. David M. Jarrott, a neu-ro-surgeon. Dr. Jarrott indicated that the L6/S2 disc was injured or symptomatic. Dr. Gessner testified that the discogram was “equivocal” and that plaintiff should be followed on a conservative basis before surgery was performed. Dr. Llewellyn, who again examined plaintiff after the disco-grams were performed, encouraged her to continue non-operative treatment in late September, 1977. Dr. Lindner felt that the discogram was questionable instead of negative and felt that plaintiff had a ruptured disc.

Plaintiff was again admitted to the hospital on February 6, 1978, with cervical and lumbar strain and a possible ruptured disc. Plaintiff was treated conservatively and was discharged on February 15. She continued under the care of Dr. Lindner from February until July, 1978.

After no marked improvement, plaintiff was admitted to Tulane Medical Center on July 5, 1978 complaining of back and bilateral leg pain with continuing neck, shoulder and arm discomfort. X-rays were normal and plaintiff underwent therapy. While hospitalized on July 7, plaintiff fell from a sitting position striking her head and face. Dr. Llewellyn was of the opinion that the fall did not aggravate the back problem. Plaintiff’s diagnosis on admission to Tulane was chronic lumbar disc syndrome and cervical spine strain. This diagnosis remained the same when she was discharged seven days later.

On July 18, 1978, plaintiff saw Dr. Kenneth E. Vogel, a neuro-surgeon, on referral from Dr. Lindner. Dr. Vogel’s examination of her low back region revealed a moderate degree of limitation of motion, muscle spasms and tenderness. This physician diagnosed plaintiff’s condition as chronic cervical strain and subcapsular herniated lumbar disc.

Plaintiff was re-admitted to the hospital on September 10, 1978 and a discogram showed herniation at the L5/L6 level. Plaintiff then underwent a lumbar laminec-tomy. After surgery, her condition improved somewhat but at the time of trial she was experiencing recurring back pain.

Dr. Vogel was of the opinion that the medical probability was that the automobile accident and not the earlier fall by plaintiff at work, had caused the herniated disc. He stated that although plaintiff had low back and neck pain pre-existing the automobile accident, the injury in all probability became a “bonafide herniated disc” at the time of the accident. According to this expert, plaintiff’s negative myelogram in September, 1977 did not rule out a ruptured disc. He indicated that the post-automobile accident evidence of nerve root involvement indicated causation between the herniated disc and the car accident.

Dr. Llewellyn, the treating neuro-sur-geon, first saw plaintiff on August 18,1977. He stated that, in his opinion, plaintiff had a “disc problem” from the first time he saw her. He felt her problem has been at the L5/L6 disc and the post-operative and surgical findings were consistent with the dis-cogram result found in November, 1977. Dr. Llewellyn testified that a disc rupture can be relatively mild and not immediately detectable before gradually worsening and resulting into a “full blown disc” problem.

Dr. Lindner, also was of the opinion that plaintiff suffered a ruptured disc which was related to the automobile accident. He felt that plaintiff’s condition had worsened from the time of the accident until surgery. He indicated that if plaintiff had not been in the automobile accident she probably would have recovered from the back injury sustained in the earlier fall. There was no doubt in Dr. Lindner’s mind that the automobile accident aggravated the pre-existing back condition.

Dr. Gessner also stated that although he did not clinically find suggestions of a ruptured disc, plaintiff’s subjective complaints were indicative of a rupture. He testified that plaintiff’s right leg pain after the automobile accident would suggest that it was a result of that accident, which aggravated the injury sustained in the earlier work-connected fall. He could not say however, whether the earlier fall or the automobile accident, was more responsible for plaintiff’s problem.

The jury also had the benefit of the testimony of Dr. Richard W. Levy, a neuro-sur-geon, who examined plaintiff on June 13, 1978 at the request of defendants. Dr. Levy testified that the examination was “totally normal” except for tenderness in the lower neck and left lower lumbar region. He found no evidence of a ruptured disc at that time. This physician was of the opinion that plaintiff’s fall on July 7, 1978 during hospitalization was the proximate cause of the ruptured disc found in September, 1978 absent any other known trauma in addition to that.

Dr. James T. Williams, an orthopedic surgeon, also examined plaintiff on February 1, 1978, at the request of the defense attorney. He found no evidence of a ruptured disc on that date and felt that plaintiff had objectively recovered from the effects of any prior injuries.

Our consideration of the medical evidence leads to a conclusion that plaintiff established causation between the automobile accident, the disc injury and the surgery. Accordingly, we find no error.

QUANTUM

The $75,000.00 “lump sum” award was subject to a credit in the sum of $8,502.12 owed to plaintiff’s subrogated insurer. Plaintiff’s special damages in hospital costs, physicians fees and a towing charge amounted to $21,117.83. According to plaintiff the $75,000.00 award represents only $45,380.04 in general damages, an amount she contends “grossly inadequate” and an abuse of the jury’s discretion. We disagree.

Although plaintiff testified at length concerning her pain and suffering and her inability to work for a sustained period since the accident, Dr. Vogel testified that plaintiff could probably “handle” some typing and filing job. This physician testified that even though statistically 10 or 20% of plaintiff’s previous back pain will persist, he would encourage her to try work recognizing that she may have some difficulty and pain. She should avoid work requiring her to lift, pull or push weights in excess of 30 pounds. The doctor indicated that he did not advise plaintiff she could not work.

As proof of loss of earning capacity, plaintiff’s actuary testified concerning her loss of future earnings based on assumed decreases in monthly income. Viewing this evidence in connection with Dr. Vogel’s testimony concerning plaintiff’s ability to work, together with the other evidence, we cannot say the amount awarded by the jury is an abuse of discretion. See Reck v. Stevens, 373 So.2d 498 (La.1979); CoCo v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Having so concluded, we affirm the judgment.

AFFIRMED.

REDMANN, Judge,

concurring.

I subscribe to the opinion of Judge Gulot-ta, but point out that the $8,500 subrogation is, at least for its $5,000 medical subro-gation, not an additional item of special damages, and therefore the award for general damages amounts to at least $50,380.

BARRY, Judge,

concurs.

I am concerned with the insufficiency of the $75,000.00 award.

Plaintiff suffered through several hospitalizations during which a discogram and myelogram were performed and eventually the lumbar laminectomy. She was twenty-four years old at the time of the accident and Dr. Vogel testified she has up to 20 percent disability and residual pain. After the accident she attempted to work as a bank teller, nurse, medical technician, and clerk; however, steady employment was impossible because of her back problems. Actuarial testimony shows a wage loss range of $145,000.00 (based upon a $500.00 per month decrease in wages) to $29,000.00 (based on a $100.00 per month decrease).

I feel $100,000.00 is a reasonable, minimum award for pain and suffering (which covers an anticipated fifty-year life-span of constant pain). Adding to this the minimum wage loss, considering the subrogated insurer’s credit of $8,500.00 and special damages of $21,000.00, an adequate award for this particular plaintiff considering her particular medical problem easily justifies raising the judgment to $160,000.00 which I feel is the lowest reasonable value.

      . The inconsistencies relate to the sequence in the signal light changes at the intersection; whether the Gonzalez vehicle stopped before entering the intersection; and, the time that a witness learned of the accident. The jury was apparently aware of these discrepancies in the testimony and awarded a judgment to plaintiff.

      . Plaintiff saw Dr. Lindner on October 6, November 2, and November 7, 1977 on continued complaints of back and leg pain. She saw Dr. Gessner on October 11, 1977.

      . Trinity Universal Insurance Company paid plaintiff $3,502.13 for property damage and $5,000.00 under the medical payments provisions of her policy.

      . Plaintiff did not work after her discharge from Union Carbide (prior to the automobile accident) until February, 1979, post-operation, when she attempted to work as a bank teller. She left this job after a month and a half because of medical problems.
      In April, 1979, plaintiff worked for one or two months as a nurse assistant for a physician, but was terminated because of absenteeism caused by back problems. Plaintiff also worked at Ochsner Clinic as a special procedure technician for about 3 months but left that job because it involved lifting and standing.
      At the time of trial, plaintiff was on sick leave from her current job as an insurance clerk and testified that whether she returned to work after trial depended on medical advice.

      .Plaintiff was twenty-four years old at the time of the accident and twenty-seven years old at date of trial. Based on her calculated work life expectancy of 343/io years, plaintiffs actuary projected a decrease in her earning capadty of $145,830.00, assuming a $500.00 per month decrease. He testified her loss of future earnings would be $87,497.00, assuming a $300.00 per month decrease; and $29,166.00, assuming a $100.00 per month decrease in earning capacity.


text:
    Jacqueline BOWMAN et al. v. NEW ORLEANS PUBLIC SERVICE, INC. et al.
    No. 12572.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 1982.

      Robert T. Hughes, New Orleans, for plaintiffs-appellees.
    James Maher, III, New Orleans, for defendant-appellant New Orleans Public Service, Inc.
    Before REDMANN, SCHOTT and KLEES, JJ.
   REDMANN, Judge.

Defendant’s complaint, in this appeal from a judgment in its favor on the merits of a tort suit, is that the trial judge cast it for the unsuccessful plaintiff’s costs when there exist no circumstances that make it “equitable” within La.C.C.P. 1920 to do so. Defendant does not ask that it be given judgment for its own costs but only that it not be made to pay plaintiff’s costs. We reverse.

C.C.P. 1920 provides:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

The basic rule is that all costs— both the prevailing side’s and his or her own — are to be paid by the party cast, although the court may make an “equitable” different provision for costs. The statutory limit to an assessment of costs other than against the party (or parties) cast is that such an assessment must be “equitable.” That limit denies to a trial judge the power either to deny his or her own costs to a prevailing party or to assess another party’s costs against a prevailing party unless some circumstances present in the case justify doing so. See Gonzales v. Southwest Mobile Homes, 309 So.2d 780 (La.App. 3 Cir. 1975), writ refused La., 313 So.2d 239.

The necessity for some flexibility in a rule for assessing costs is readily seen. A prevailing party may have expended or caused costs that were wholly unnecessary, as by subpoenaing pointless witnesses on his or her own or by doubtful continuances obliging the losing party to re-subpoena witnesses. Or a prevailing party’s communication-repelling behavior before suit might be such that he or she “deserved” to be sued or to have to sue even though he or she prevailed; and it might be equitable to oblige such a party to bear his or her own costs. See Custom Builders & S. Co. v. Revels, 310 So.2d 862 (La.App. 3 Cir. 1975).

But the trial judge ordinarily may not cast all costs against a prevailing party; Johnson v. Marshall, 202 So.2d 465 (La.App. 1 Cir. 1967), writ refused 251 La. 217, 203 So.2d 555; Dauzat v. Kroger Co., 323 So.2d 170 (La.App. 3 Cir. 1975), writ refused La., 325 So.2d 819; MFA Mutual Ins. Co. v. Fidelity & Casualty Co. of N.Y., 318 So.2d 666 (La.App. 3 Cir. 1975); although there may be circumstances justifying doing so, as in Green v. Orleans Parish Sch. Bd., 365 So.2d 834 (La.App. 4 Cir. 1978), writ refused La., 367 So.2d 393, and where defendant before suit is filed has tendered an amount at least equal to the judgment rendered, and plaintiff rejected the tender, plaintiff is’ cast for all costs, Liwerant v. Boston Ins. Co., 198 So.2d 925 (La.App. 4 Cir. 1967).

The underlying principle of Code and jurisprudence is that the party whose behavior unjustifiably causes costs to be incurred ought to pay them.

We might be able to find a certain “equitableness” to defendant’s paying its own costs here (a question not at issue) on a theory that by leaving its vehicle in a position to be stolen, it “deserved” to be sued, but plaintiffs can only have expected in this state, on the basis of prior decisions, to lose their suit, and their having brought the ill-founded suit is the unjustifiable behavior which caused their own costs. We find no circumstances in the record justifying the casting of defendants for plaintiffs’ costs.

The judgment on costs is reversed; each party is to pay its own costs.

      . Green did not specify the unusual circumstances upon which the costs decision was based. But the overall picture of the public school board control over the physical surroundings and athletic activity that resulted in the very great damages to the student and his family, and perhaps other circumstances not disclosed by the reported opinion, presumably persuaded the court that it was “equitable” that the public should bear not merely its own costs but those of plaintiffs as well.


text:
    Charlotte Suire DAVIS v. Edson L. DAVIS.
    No. 13025.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 1982.

      Floyd J. Reed, New Orleans, for relator.
    Garland R. Rolling, Metairie, for respondent.
    Before SAMUEL, C. J., and REDMANN, CHEHARDY, BARRY and KLEES, JJ.
   REDMANN, Judge.

We grant mandamus to declare at an end, upon the granting of a judgment of separation, an injunction against alienation of community property by a spouse and community-owned corporations.

“The judgment of separation from bed and board carries with it the separation of goods and effects .. .,” La.C.C. 155. Thus the judgment of separation terminates the community and constitutes the spouses simple co-owners of the formerly community property.

The consequence is that the judgment of separation automatically terminates any previous injunction restraining a spouse’s disposing of community property, issued under C.C. 149 and C.C.P. 3944 without bond (rather than under C.C.P. 3601 and following). Fisher v. Fisher, 261 So.2d 85 (La.App. 3 Cir. 1972); Guess v. Guess, 180 So.2d 808 (La.App. 4 Cir. 1965).

Accordingly, the trial judge’s reported view “that the preliminary injunction ... had expired by operation of law” is correct. The trial judge nevertheless denied, after contradictory hearing, the requested order that the injunction “be recalled, annulled, vacated and no longer in force or in effect.”

Because of applicant’s showing that his bank declines to do projected business (in respect to instruments of over $50,000 in value) with him or the formerly community corporations because of the injunction against him and them, applicant is entitled to a declaration that the injunction is no longer in effect (although, one might agree, not to an annulment or vacating of an injunction that was proper at the time it was granted). Such a declaration would not, of course, authorize either spouse to dispose of the other’s half interest in formerly community property, but each should be free to dispose of his or her own half. Nor would such a declaration authorize a spouse in control of a formerly community-owned corporation to abuse that control to enrich himself or herself at the expense of the other spouse-shareholder; but the corporation should be free to deal with its assets in good faith. It is therefore

ORDERED that the Honorable Thomas C. Wicker, Judge, Twenty-Fourth Judicial District Court, Parish of Jefferson, Division H, enter an order declaring that the injunction under C.C. 149 and C.C.P. 3944, restraining without bond the disposition of formerly community property, is terminated by the judgment of separation.

CHEHARDY, J., dissenting.

I dissent.

      . The wife in opposing this application complains that she is entitled to a sequestration of the formerly community assets. She makes no showing as to any particular item, but we note that corporate assets ordinarily belong to the corporation and not to the shareholders, so that the fact that she may now be a 50% shareholder in the formerly community-held corporation does not of itself give her any right, other than those of a shareholder, to control corporate acts.