author:
MARCUS, Justice. WATSON, Justice.

      MARCUS, Justice LEMMON, Justice, DENNIS, Justice,

text:
    Malcolm Y. BRIAN et al., v. Robert E. BOWLUS et al.
    No. 67728.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
    On Rehearing May 29, 1981.
    J. Glenn Dupree, Jeff Hughes, Adcock, Dupree & Shows, Baton Rouge, for defendants-applicants.
    Robert L. Kleinpeter, Kleinpeter, Klein-peter & Kleinpeter, Baton Rouge, for plaintiffs-respondents.
    Mack E. Barham, Barham & Churchill, New Orleans, for appellants.
   MARCUS, Justice.

Malcolm Y. Brian and his wife, Helena S. Brian, together with their son, David Brian, instituted this action for a declaratory judgment against Robert E. Bowlus, Ann M. Bowlus Trust, and William M. Bowlus Trust seeking recognition of the relocation of a servitude in accordance with an Act of Revocation and Relocation of Servitude executed by the plaintiffs on May 30, 1978.

The trial judge rendered judgment in favor of plaintiffs and against defendants recognizing the revocation and relocation of the servitude. Defendants appealed. The court of appeal affirmed, finding as did the trial judge that the act of sale by which Malcolm and Helena Brian sold to Robert Bowlus a certain enclosed parcel of land with a “servitude of way and passage” across the Brian property to a public road established a legal servitude and that the relocation of the servitude was proper. On defendants’ application, we granted certio-rari to review the correctness of that judgment.

At trial, the case was submitted by the parties on a stipulation of fact and evidence. By act of sale dated December 22, 1966, Malcolm Y. Brian and Helena S. Brian sold to Robert E. Bowlus a certain enclosed parcel of land with a “servitude of way and passage” across the Brian property to a public road. The parcel sold, as well as the servitude, was described with particularity in the act of sale. No specific consideration was mentioned for the servitude. By letter to Malcolm Brian dated the same day as the act of sale, Bowlus agreed that the servitude of passage would continue only until he was able to connect the property purchased to an access road through lands owned by a third party so that the Brian estate would be relieved of the servitude granted in the act of sale. However, he stated that he could not guarantee success in obtaining the “other contemplated access.”

Subsequently, on May 2, 1973, Bowlus transferred both the parcel of land and the servitude to the Ann M. Bowlus Trust and the William M. Bowlus Trust. Early in 1978, Malcolm and Helena Brian attempted to negotiate a relocation of the servitude on their property with defendants but were without success. On May 30, 1978, Mr. and Mrs. Brian unilaterally executed an Act of Revocation and Relocation of Servitude and forwarded notice to defendants. A new right-of-way was constructed at plaintiffs’ cost. On July 18, 1978, Mr. and Mrs. Brian sold their son David a certain parcel of land which included a portion of the original and relocated servitudes. David Brian subsequently built a personal residence over the original servitude. Plaintiffs filed this action on October 12, 1978.

The principal issue for our determination is whether the right of passage established in the act of sale was a legal or conventional servitude under the then-applicable articles of the civil code. This determination will govern the right of the owner of the servient estate to relocate the servitude.

La.Civ.Code art. 701 then provided:

It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor coparcener or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude.

Since art. 701 makes the vendor of an enclosed estate bound to furnish the purchaser with a right of passage across his land on which the right had been before exercised, we consider that the plaintiffs simply delineated and located the boundaries of the right of passage on their property by describing it in the act of sale. There is no indication that the servitude was bargained for or that any consideration was paid for it. The very language of art. 701 presupposes that the right of passage be delineated in the act of sale, as the last clause of the article provides that the vendor must furnish the purchaser of an enclosed estate with a passage gratuitously “and even when it has not been sold or transferred with the rights of servitude.” (Emphasis added.) Moreover, it is reasonable to infer from Bowlus’ letter dated the same day as the act of sale that the servitude was gratuitous in nature in that no part of the purchase price was contemplated to be returned to Bowlus when and if he could obtain another access to his property. The letter also reflected that Bowlus was not concerned with the particular location of the servitude as long as he had access to his property. Under these circumstances, we consider the parties intended to locate the servitude imposed by law by describing it in the act of sale. Hence, the servitude was legal and not conventional. Picard v. Shaubhut, 324 So.2d 517 (LaApp. 1st Cir. 1975), writ not considered, 326 So.2d 380 (La.1976); see Arcuri v. Cali, 244 So.2d 309 (La.App. 4th Cir. 1971).

Having determined that the right of passage established in the act of sale was a legal servitude, we must next consider whether plaintiffs’ action in relocating the servitude was proper under La.Civ.Code art. 695 which provides:

The owner of the enclosed estate has no right to the relocation of this servitude after it is fixed. The owner of the ser-vient estate has the right to demand relocation of the servitude to a more convenient place at his own expense provided that it affords the same facility to the owner of the enclosed estate.

The above article permits the owner of the servient estate to relocate the servitude to a more convenient place at his own expense provided that it affords the same facility to the owner of the enclosed estate. It is clear here that the relocation of the servitude was to a more convenient place as it allowed Mr. and Mrs. Brian to best utilize and develop their property in furnishing a homesite for their son. Based upon our view of the evidence as to the location, configuration and elevation of the new right-of-way constructed at plaintiffs’ expense, we conclude, as did the courts below, that the servitude affords the “same facility” to defendants as the original servitude.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

DIXON, C. J., and CALOGERO, J., dissent.

BLANCHE, J., recused.

ON REHEARING

WATSON, Justice.

This is a suit for a declaratory judgment approving the relocation of a predial servitude of passage. A rehearing was granted to consider the contentions that the servitude is conventional rather than legal and that the judgment recognizing the relocation by the owner of the servient estate is erroneous.

FACTS

On December 22, 1966, Malcolm Y. and Helena S. Brian sold Robert E. Bowlus an enclosed parcel of land with a servitude of passage across the Brian property to a public road. In a letter, Bowlus stipulated that he would use his best efforts to secure another access and relieve the Brian estate of the servitude. Brian wanted the servitude relocated to enable his son to construct a residence. The parties’ attorneys conferred about the matter, but no agreement was reached. On May 30, 1978, the Brians filed a unilateral act revoking and relocating the servitude. The Brians sold their son, David Brian, a portion of their tract on July 18, 1978. A road was constructed at the Brians’ expense at the new location and it was allegedly used by the Bowlus interests for access to their property. An affidavit by a Gulf States’ line foreman establishes that the new road can be and was utilized by large trucks. David Brian built a home in the path of the initial servitude. Malcolm Y., Helena S., and David Brian filed this suit for declaratory judgment on October 12,1978, to have the new servitude location judicially approved.

The trial court gave judgment for plaintiffs, finding that the new location affords “the same facility” to the Bowlus interests. (Tr. 40) The Court of Appeal, First Circuit, affirmed. A writ was granted. On original hearing, the judgment was affirmed. The servitude was described as legal rather than conventional. The opinion therefore relied on former Civil Code article 703 and new article 695 to conclude that the relocation was more convenient to the Brians and offered the same facility to defendants.

ISSUES

The issues on rehearing are: (1) whether the servitude established in 1966 was legal or conventional; (2) whether the new location is “equally convenient”; and (3) whether the judgment recognizing the relocation is correct.

CONCLUSION

On reconsideration, it appears that the servitude is conventional rather than legal. As pointed out by Professor A. N. Yiannopoulos in an article on Enclosed Estates at 23 Loyola L.Rev. 343: “.. ., a servitude established in favor of lands sold, exchanged, or partitioned, whether voluntarily to prevent an enclavement or by judgment under article 701, ought to be classified as a conventional servitude.” The article distinguishes between the right to demand the legal servitude of passage and the conventional servitude which is reflected in a contract — the latter, even if given because of a legal right, has been established by title and is a conventional servitude.

Picard v. Shaubhut held that the servitude granted in an act of partition was not a conventional servitude but merely a recognition of a legal servitude owed by one partitioned estate to the other. This is erroneous. When a servitude is established in a sale, exchange or partition, it has received the mutual assent of the parties. Their agreement establishes a conventional servitude.

DeFelice Land Corp. v. Citrus Lands of Louisiana, Inc. correctly held that a servitude of passage owed to an enclosed estate,' when established by title, is governed by Civil Code articles 777, 779 and 780, articles relating to conventional servitudes.

The right to relocate a conventional servitude of passage was given by former Civil Code article 777, which stated that the owner of the servient estate, if the servitude becomes “more burdensome”, can offer to the owner of the dominant estate “a place equally convenient”, and the latter “can not refuse it”. The present article, effective January 1,1978, is Civil Code article 748 which states that the owner of the servient estate, if he finds the location “more burdensome”, may provide another “equally convenient” location which the owner of the dominant estate is “bound to accept”. Present article 748 is based on former article 777. Both provide that a servitude that has become “more burdensome” can be moved to an “equally convenient” location. There is no question that this servitude became “more burdensome” to the Brians. Moreover, construction of the son’s home would constitute “advantageous repairs” and “useful improvements” to the servient estate. The trial court made a factual finding that the new location affords the “same facility” to the Bowlus interests. The exhibits support that conclusion. There is no significant difference between a servitude which affords “the same facility” and one which is “equally convenient.” Both phrases imply a location which is as suitable to the purpose as its predecessor. The servitude location established by the Brians meets this test. The Bowlus interests introduced no evidence that the new location discommodes them.

The Bowlus interests complain about the Brians unilaterally relocating the servitude after attempts to agree on the new location failed. However, when suit was filed for declaratory judgment, that complaint was moot. As the Court of Appeal pointed out, the Brians took the risk that the court would reject the new location. The fact that a servitude has been unilaterally established at a certain place does not require that the situs be either approved or disapproved by the courts. See Morgan v. Culpepper. The Brian suit alleged that the Bowlus interests had refused to agree to the relocation and asked that it be judicially approved. The only evidence indicates that the location is “equally convenient”. The Bowlus interests did not allege or prove in what respect the relocation is inconvenient and therefore are bound to accept it. The trial and appellate courts correctly decided that the Brians are entitled to have the servitude fixed at the new location.

For the reasons assigned, the result reached in the original' opinion is correct. The judgment of the Court of Appeal is affirmed.

AFFIRMED.

MARCUS, J., concurs and assigns reasons.

GARVEY, J., concurs for reasons assigned by MARCUS, J.

LEMMON, J., concurs in part and dissents in part and assigns reasons.

DENNIS, J., dissents with reasons.

CALOGERO, J., dissents.

MARCUS, Justice

(concurring).

I disagree with the majority’s finding that the servitude in question is conventional. Rather, I consider that the parties simply delineated and located the boundaries of the right of passage on the servient estate by describing it in the act of sale. There is no indication that the servitude was bargained for or that any consideration was paid for it. The very language of the then article 701 of the Civil Code presupposes that the right of passage be delineated in the act of sale, as the last clause of the article provides that the vendor must furnish the purchaser of an enclosed estate with a passage gratuitously “and even when it has not been sold or transferred with the rights of servitude.” (Emphasis added.) Moreover, as stated in the original opinion, it is reasonable to infer from Bow-lus’ letter dated the same day as the act of sale that the servitude was gratuitous in nature in that no part of the purchase price was contemplated to be returned to Bowlus when and if he could obtain another access to his property. The letter also reflected that Bowlus was not concerned with the particular location of the servitude as long as he had access to his property. Under these circumstances, I consider that the parties intended to locate the servitude imposed by law by describing it in the act of sale. In other words, the servitude in question was legal and not conventional. However, I concur in the result reached by the majority. Accordingly, I respectfully concur.

LEMMON, Justice,

concurring in part and dissenting in part.

When the owner of the servient estate desires to relocate a servitude, he must either obtain consent from the owner of the dominant estate or have the relocation approved and the new location fixed by the court. In the judicial proceeding the owner of the servient estate has the burden of proving (a) that the existing servitude has become more burdensome to him or that the servitude prevents him from making useful improvements on his estate and (b) that the new location is equally convenient to the owner of the dominant estate.

I agree that the stipulated evidence in the judicial proceeding supports the trial court’s approval of the relocation of the servitude to the new position on the ser-vient estate. I disagree, however, that the filing of the judicial proceeding rendered moot the issue of the propriety of plaintiff’s previous actions in unilaterally and extraju-dicially relocating the servitude against the will of the owner of the dominant estate, depriving him of his right to use the servitude established in the contract. Nevertheless, since the majority opinion does not pass on the propriety of plaintiffs’ actions prior to the filing of this suit, any damages to defendants resulting from those improper actions can be determined in supplemental proceedings in this matter or in another suit.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The owner of the servient estate is afforded a right to relocate the servitude if he can prove that (1) the servitude has become “more burdensome” to the servient estate since its original location, or (2) the servitude prevents the construction of “useful improvements” on his estate, and (3) he can provide another equally convenient location for the exercise of the servitude. La.C.C. art. 748 (La.Acts 1977, No. 514, § 1); La. C.C. art. 777 (before amended in 1977); Ogden v. Bankston, 398 So.2d 1037 (La.1981).

Plaintiff’s evidence consists principally of exhibits and a brief stipulation. The stipulation does little more than identify the exhibits. The majority opinion, the court of appeal opinion and the trial court reasons for judgment do not explain how this documentary evidence proves that the servitude had become more burdensome since its original location, or that it prevented the construction of useful improvements, and that the servient estate owner has provided another equally convenient location. In my opinion, the evidence does not prove these essential prerequisites for relocation of a servitude.

      . 386 So.2d 662 (La.App. 1st Cir. 1980).

      . 387 So.2d 597 (La. 1980).

      . Title IV of Book II of the Louisiana Civil Code, Predial Servitudes, previously consisting of arts. 646 to 822, was amended and reenacted by Acts 1977, No. 514, § 1, eff. Jan. 1, 1978, to consist of arts. 646 to 774. Hence, the prior articles which were in effect at the time of the creation of the servitude herein are applicable in the determination of this issue.

      . La.Civ.Code art. 694 replaced art. 701 but only reproduced the substance of the prior article and did not change the law. The wording of the new article is somewhat clearer on the point in question:
      When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.

      . Article 695 replaces former art. 703 which provided:
      When the place for the passage is once fixed, he to whom this servitude has been granted can not change it, but he who owes this servitude may change it from one place to another, in order that it may be less inconvenient to him, provided that it afford the same facility to the owner of the servitude.
      Plaintiffs’ action in relocating the servitude occurred after the effective date of art. 695. The comment under art. 695 states that “[t]his provision reproduces the substance of Article 703.... It changes the law as it makes relocation of the passage more burdensome for the owner of the servient estate.” Since we hereinafter conclude that plaintiffs met the more burdensome standard provided for in art. 695, we need not concern ourselves with the possible retroactive effect of the article.

       Honorable Richard Garvey participated in this decision as Associate Justice Ad Hoc in place of Blanche, J., recused.

      . On June 21, 1979, Mr. and Mrs. Bowlus transferred the property they had purchased from the Brians to the Ann M. Bowlus and William M. Bowlus trusts.

      . 386 So.2d 662 (La.App. 1 Cir. 1980).

      . 387 So.2d 597 (La. 1980).

      . LSA-C.C. art. 777 provided:
      “The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient. “Thus he can not change the condition of the premises, nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance. “Yet if this primitive assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer to the owner of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due can not refuse it.”
      LSA-C.C. art. 748 provides:
      “The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.
      “if the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate.”

      . Since the servitude is conventional rather than legal, LSA-C.C. art. 695 does not apply. The argument by counsel for the Bowlus’ interests, which relies on the word “demand" in that article, is therefore irrelevant.

      . W. R. Irby Professor of Law, Tulane University.

      . 23 Loyola L.Rev. 374.

      . 324 So.2d 517 (La.App. 1 Cir. 1975) writ refused 326 So.2d 380 (1976).

      . 330 So.2d 631 (La.App. 4 Cir. 1976).

      . “Insofar as the owner of the servient estate is concerned, this article [LSA-C.C. art. 703] gives him a right that he might also claim under the terms of article 777.” 23 Loyola Law Review 343 at 377.

      . They have taken no action at any time to protect or maintain the former location. Compare Burgas v. Stoutz, 174 La. 586, 141 So. 67 (1932) where the owner of the dominant estate filed suit to enjoin construction of a fence across his servitude. Also see Nelson v. Warren, 157 So.2d 762 (La.App. 2 Cir. 1963); McLure v. Alexandria Golf & Country Club, Inc., 344 So.2d 1080 (La.App. 3 Cir. 1977); and Ogden v. Bankston, 398 So.2d 1037 (La., 1981).

      . 324 So.2d 598 (La.App. 2 Cir. 1975) writ denied 326 So.2d 377, 378 (1976).

      . La.Civ.Code art. 701 then provided:
      It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor, co-parcener or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude.


source: Caselaw Access Project

author: JASPER E. JONES, Justice Ad Hoc.

license: Public Domain

text:
    STATE of Louisiana v. Thomas Rhuel SPELL.
    No. 67058.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied July 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Jack Derrick Miller, Asst. Dist. Atty., for plaintiff-appellee.
    Nolan Edwards, of Edwards, Stefanski & Barousse, Larry Dupuis, Crowley, for defendant-appellant.

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

   JASPER E. JONES, Justice Ad Hoc.

Thomas Rhuel Spell was charged' by grand jury indictment with the crime of second degree murder of Ricky Mire in violation of LSA-R.S.14:30.1. On December 20, 1979 defendant was convicted before a jury of twelve by a vote of eleven to one. The defendant was sentenced to life imprisonment without eligibility for parole, probation, or suspension of sentence for forty years.

Defendant appealed his conviction. While the case was pending on appeal, defendant filed a motion for new trial based upon a contention that he had discovered new evidence which, if it had been introduced at trial, would probably have changed the verdict of guilty. The defendant’s new trial motion contended that the new evidence could not have been discovered by him before or during the trial. This court remanded the case to the trial court for a hearing on defendant’s motion for a new trial. See State v. Spell, 388 So.2d 754 (La.1980).

Following a hearing on the new trial motion the trial court denied the new trial. The case is now before this court on the merits of the appeal which were not considered before the remand and on an assignment of error designated as No. 5 directed at the trial court’s refusal to grant a new trial.

The evidence at trial reflected the following facts:

On November 12, 1975, at about 4:00 p. m., Anthony Broussard was driving his car in the south part of Crowley, La. in the Parish of Acadia when he was stopped by defendant. Defendant asked Broussard to take him for a ride, and Broussard agreed to the request. Shortly after Broussard and defendant commenced their ride they observed Ricky Mire walking down the street. Defendant had Broussard stop and defendant went and talked to Mire. Mire returned to Broussard’s car with defendant and got into the car with Broussard and defendant.

At defendant’s direction Broussard drove to an isolated area in Crowley near a dried-up drainage canal and stopped. Mire and defendant got out of the car, and while Mire was standing near the front of the vehicle, defendant secured the car keys from Broussard, opened the trunk of the car and removed from it a tire tool. Mire and defendant then walked out of sight in the direction of the drainage ditch. Defendant carried the tire tool with him as he left the vehicle. Soon after defendant and Mire disappeared from view Broussard got out of the car and went in search of them and found them a short distance away, apparently over the drainage ditch levee. Broussard observed defendant push Mire who was in front of him. Broussard then returned to his car. After the elapse of about ten minutes defendant returned to Broussard’s vehicle without Mire and advised Broussard not to ask any questions and to return him to his car which he had left at the point where he had entered Broussard’s vehicle.

Broussard did not see the tire tool in defendant’s hands when he returned to the car, but he heard defendant drop it upon the floor. When the pair arrived back at defendant’s car, defendant got out of Broussard’s car and the tire tool was not left in Broussard’s vehicle. Broussard did not see defendant take the tire tool out of his car. (These facts were obtained from the trial testimony of Anthony Broussard).

At about 5:00 p. m. that afternoon, three horseback riders found Mire in the drainage ditch apparently unconscious with his head and face covered with blood. There was a lot of blood on the ground near Mire. They notified the sheriff’s office who obtained an ambulance and carried Mire to a Crowley hospital where his head was bandaged in the emergency room. The parish coroner arrived at 6:30 p. m. and observed that Mire was in a critical condition and ordered his immediate transfer to a Lafayette hospital where Mire died at 9:35 p. m. that night.

Mire’s body was returned to Crowley and examined by the parish coroner who testified he died from several head injuries that appeared to have been caused by a blunt instrument with a sharp end.

Defendant relies on five assignments of error for the reversal of his conviction and sentence.

ASSIGNMENT OF ERROR # 1

At trial a series of four black and white pictures designated as S-3 which were taken of Mire shortly after he was brought from the drainage ditch to the emergency room of the Crowley hospital, were admitted into evidence over defendant's objections. These pictures showed Mire’s bandaged head with his head, face, neck, and upper chest covered with dried blood.

Two black and white pictures were admitted into evidence designated as S-4 which were taken of Mire’s head after his body was returned from Lafayette to Crowley. These pictures of decedent’s shaved head showed the several cuts across decedent’s skull which the coroner testified showed multiple open skull fractures caused by multiple blows to the face and head. He expressed the opinion that the numerous injuries were inflicted with a blunt instrument, perhaps with a sharp, narrow end. He testified Mire died from massive brain damage caused by multiple skull fractures. He made this determination from the examination of Mire’s body and stated that the pictures reflected the extent of the injuries upon which he made his determination of the cause of death.

Defendant made no objection to the introduction into evidence of S — 4 but objected to the pictures designated as S-3 on the grounds they had no probative value and served only to inflame the jury. He contends that S-4 adequately shows the nature and extent of the wounds.

The test of admissibility of allegedly gruesome pictures is whether their probative value outweighs the possible prejudice that may result from their display to to the jury. State v. Myles, 389 So.2d 12 (La.1979); State v. Scott, 337 So.2d 1087 (La.1976); State v. Gilmore, 332 So.2d 789 (La.1976). Photographs of the deceased victim have generally been held relevant to prove the corpus delicti, to corroborate other evidence of the manner in which the death occurred, to establish the location, number and severity of wounds, and to establish the victim’s identity. State v. Myles; State v. Scott, supra; State v. Williams, 343 So.2d 1026 (La.1977).

The photographs here objected to have probative value in that they show the bloody head and face of the victim in a substantially similar condition as was the condition of the victim at the time he was found in the drainage ditch. The pictures were taken shortly after the victim was brought from the drainage ditch. The pictures corroborate the testimony of the witness who found the victim in the drainage ditch and testified that large amounts of blood were on the victim’s face and head and upon the ground near him. The pictures show the dried blood on the victim and corroborate the coroner’s testimony that because of the dried blood he believed the victim had sustained his fatal injuries some two hours before his examination at approximately 6:30 p. m. These pictures taken before Mire’s death supplement the pictures taken after his death and corroborate the testimony of the coroner as to the manner in which the death occurred and the location and severity of the wounds.

An examination of these black and white pictures showing substantial amounts of blood about the face and head of the victim is unpleasant, but the pictures are not unusually gruesome and we conclude that their probative value outweighs any prejudice to the defendant that may have resulted from their display to the jury.

This assignment of error is without merit.

ASSIGNMENT OF ERROR # 2

The state called the 16 year old victim’s half-sister as a witness. She testified, over defendant’s objection, that about two weeks before the murder the victim told her he was in love with defendant who was his homosexual lover.

Defendant objected to this testimony on the grounds that it was an inculpatory statement requiring notice to defendant of an intention to use at trial. LSA-C.Cr.P. art. 768 provides:

If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

It is clear that this provision applies only to inculpatory statements made by defendant and the objectionable testimony related to statements made by the victim, and for this reason this contention is without merit.

Defendant in brief argues that the statement was evidence of other crimes committed by defendant and for this reason he was entitled to the Prieur State v. Prieur, 277 So.2d 126 (La.1973) notice. Defendant failed to base his objection on this ground at the time he made the objection at trial and cannot assert it for the first time in brief on appeal. State v. Risen, 357 So.2d 531 (La.1978).

Defendant objected to the testimony as hearsay and contends it is inadmissible because it was not covered by any of the exceptions to the rule that hearsay evidence is inadmissible.

Hearsay is an out-of-court assertion introduced to prove the truth of its content. State v. Weedon, 342 So.2d 642 (La.1977). Hearsay is generally inadmissible because of its historic unreliability and because of the unfairness to defendant who cannot test the truth of the statement by cross examination. State v. Thompson, 331 So.2d 848 (La.1976); State v. Sheppard, 371 So.2d 1135 (La.1979); State v. Weedon, supra.

Out-of-court statements of the decedent made within a few hours of the crime which were relevant to the circumstances immediately preceding the murder have been held admissible by this court. State v. Raymond, 258 La. 1, 245 So.2d 335 (1971); State v. Sheppard, supra. See also State v. Albert, 381 So.2d 424 (La.1980). In Raymond as the victim observed the approach of defendant, he stated he was hiding behind a tree because defendant would want him to have abnormal sexual relations. This occurred several hours before the homicide. One issue in the case was whether the victim and defendant were together on the night of the murder which occurred several hours after the victim made the out-of-court statement. The court held the out-of-court declaration tended to establish the likelihood of a later contact between the victim and defendant and was evidence of the victim’s state of mind or emotional attitude toward defendant.

The state here contends the hearsay is admissible to show Mire’s state of mind and attitude towards defendant. The state argues the hearsay explains why Mire got into the car with defendant and Broussard and why a few minutes later he got out of the car with defendant alone and went voluntarily to the site where he received his fatal injuries.

The hearsay found admissible in Raymond and Sheppard and alluded to as admissible in Albert, supra, were all declarations made by decedents within a few hours before their death.

In State v. Weedon, supra, we quoted with approval a concurring opinion in Raymond which explained the state of mind exception as follows:

“... conduct or declarations of the decedent shortly before his killing may sometimes be admissible as tending to show the immediately antecedent circumstances explanatory of the killing and connecting the accused with it.” Id. at 646.

In Weedon this court without discussion found inadmissible hearsay statements of the victim that she intended to leave the defendant-husband which were made three and five weeks before the wife’s death, stating that these declarations “plainly do not fall within the Raymond rule.”

The Raymond exception is inapplicable here and the hearsay testimony was inadmissible as it only related to the state of mind of the victim two weeks before his death and was not a declaration of the deceased made shortly before his death.

The hearsay testimony to the effect that defendant committed unsavory and illegal acts with the victim inferred defendant was a bad character and was prejudicial to him before the jury.

The state’s witness Jenkins was called before the victim’s sister’s inadmissible hearsay was admitted. Jenkins testified that on October 5, 1979, while discussing the murder with defendant in the prison yard at Dixon Correctional Institute at Jackson, La., that the defendant told him of his homosexual relationship with the victim. Defendant told Jenkins that he killed Mire in order to prevent Mire from disclosing their relationship to defendant’s wife. It is therefore evident that all of the information which the state placed before the jury with the inadmissible hearsay testimony of Mire’s sister was already before the jury.

Inadmissible hearsay which is merely cumulative or corroborative of other testimony adduced at trial is considered harmless. State v. Sterling, 377 So.2d 58 (La.1979); State v. McIntyre, 381 So.2d 408 (La.1980).

The admission of the objectionable hearsay is harmless error and this assignment of error is without merit.

ASSIGNMENT OF ERROR # 3

Defendant contends that the trial judge erred in admitting over his objection the testimony of Ronald Jenkins that defendant had told him he had killed the victim. Defendant contends that these in-culpatory statements were made to Jenkins in confidence and were therefore inadmissible. Jenkins, an inmate of the prison, was assigned to the law library to help other prisoners with their legal problems by writing letters, preparing pleadings, and otherwise giving them whatever advice he could. Defendant contends that the information was a privileged communication because Jenkins was acting as an attorney in the law library at the Dixon Correctional Institute when the inculpatory statements were made to him by defendant. Defendant cites no authority for his contention.

Jenkins was not an attorney and did not hold himself out as a lawyer. Defendant knew that Jenkins was a fellow inmate in the prison and was not an attorney. He voluntarily gave the information to Jenkins. The communication is not subject to the attorney-client privilege. In the case of State v. Lassai, 366 So.2d 1389 (La.1978), the court rejected the contention that a communication given by the defendant to a counselor at a drug abuse center was privileged under LSA-R.S. 37:2714 where communications to certified social workers are classified. as privileged communication. The court there said:

“Nor does the record disclose a privilege which would prevent the evidentiary use of an admission by defendant to the director of counseling at the Euterpe Center; it was not shown that she was a social worker, and for that reason R.S. 37:2714 is not applicable. Privileges are narrowly construed, and will not be extended to the counselor solely because she was ‘in the same position’ as a physician (making R.S. 15:476 applicable) or social worker.” Id. at 1390-1391.

Defendant’s inculpatory statements to Jenkins were not subject to any privilege.

This assignment of error is without merit.

ASSIGNMENT OF ERROR # 4

During trial defendant’s request for an earlier written statement taken from state’s witness, Anthony Broussard, which was in possession of the prosecutor, was denied. Defendant contends that the statement contained statements inconsistent with Broussard’s trial testimony and he desired to use the written statement for cross examination, and that the trial judge committed reversible error when she denied him the request for the statement.

Louisiana Code of Criminal Procedure Art. 844 requires a party to designate those errors which are to be urged on appeal. The scope of review is limited to those errors designated in the assignments of error and those discoverable by a mere inspection of the pleading. LSA-C.Cr.P. art. 920.

Defendant did not include the assignment of error here urged in the assignments of error submitted to the trial judge, and for that reason this assignment of error argued in brief is not before the court for review. State v. Spears, 350 So.2d 603 (La.1977); State v. Marrero, 363 So.2d 494 (La.1978).

ASSIGNMENT OF ERROR # 5

This assignment of error is directed at the trial judge’s denial of defendant’s motion for new trial on the ground of newly discovered evidence.

During the trial the state called Ronald Jenkins, an inmate of Dixon Correctional Institute at Jackson, Louisiana, as a witness. Jenkins testified that one of his duties at this prison was to work at the law library and assist other prisoners with their legal problems. His work included the preparation of letters and pleadings designed to secure modification of their prison terms from authorities in the criminal justice system. Jenkins was no lawyer and had no paralegal training. He indicated he had acquired some knowledge of the law and judicial procedure by association with his wife who was a court reporter.

Jenkins testified that on October 1, 1979, Thomas Spell who was also an inmate at DCI, came into the law library and sought advice concerning the pending charge against him of the murder of Ricky Mire. Jenkins testified during their discussion of the case that defendant admitted he had killed Mire. Jenkins further testified that on October 5, 1979, while he and defendant were engaged in a conversation on the prison yard, defendant again stated that he killed Ricky Mire. Defendant stated he killed Mire to prevent Mire from disclosing to defendant’s wife that there was a homosexual connection between Mire and defendant.

After the trial Jenkins gave a deposition to defendant’s attorney wherein he stated that the testimony he had given at trial that defendant had told him he had killed Mire was false and untrue. In the deposition Jenkins intimated he gave this false testimony in return for a promise from the district attorney, who was prosecuting defendant, to assist Jenkins in some way in connection with Jenkins’ prison term.

Defendant relies upon the recantation by Jenkins of his trial testimony to support his motion for a new trial.

Grounds for a new trial are defined in LSA-C.Cr.P. art. 851 which provides in pertinent part:

“The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegation it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;

At the hearing on the motion for a new trial Jenkins repudiated his recantation given in the deposition taken by defendant’s attorney. Jenkins testified that his trial testimony to the effect that defendant twice told him he murdered Mire was true and correct. Jenkins testified the reason he changed his story after trial was that he was paid $2500 by defendant’s father to change his story.

Defendant now contends the trial judge was in error in denying his motion for new trial because if the jury could hear the testimony from Jenkins that he changed his trial testimony after trial and then again adopted his trial testimony at the hearing on the new trial motion, that Jenkins’ testimony would be so discredited that the jury would not believe him.

Defendant contends that because the evidence against him was only circumstantial with only Anthony Broussard and Ronald Jenkins giving testimony linking him directly with the crime, that when the effectiveness of Jenkins’ testimony is severely impaired this probably would change the verdict.

The test to be applied in considering a motion for new trial based upon newly discovered evidence is whether the new evidence is so material that it ought to produce a different result from the verdict rendered at trial. The trial court has considerable discretion in evaluating the impact of newly discovered evidence on the verdict and its ruling will be disturbed on appeal only when there is a clear showing of abuse of that discretion. State v. Williams, 362 So.2d 530 (La.1978); State v. Huckaby, 368 So.2d 1059 (La.1979); State v. Manning, 380 So.2d 54 (La.1980).

Recantation of trial testimony should be looked upon with the utmost suspicion. It was held in State v. McDonald, 387 So.2d 1116 (La.1980), and State v. Tyler, 342 So.2d 574 (La.1977), that the trial judge did not abuse his discretion in denying a motion for a new trial based upon the recantation of trial testimony by a key witness. See also State v. Linkletter, 345 So.2d 452 (La.1977).

While the witness Jenkins recanted his trial testimony, he reaffirmed his trial court testimony when he testified on the motion for new trial and gave an understandable explanation for his out-of-court recantation.

These circumstances together with the testimony of Anthony Broussard, which provides substantial evidence of circumstances which strongly indicated that Mire was murdered by defendant, provide sound reasons for the trial judge to conclude that defendant’s newly discovered evidence if introduced at trial would not have changed the verdict of guilty. We find no abuse of discretion in the trial judge’s denial of the motion for new trial.

This assignment of error is without merit.

DECREE

For the reasons assigned, defendant’s conviction and sentence are AFFIRMED.

       Judges Pike Hall, Jr., Charles A. Marvin, and Jasper E. Jones of the Court of Appeal, Second Circuit participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, and Harry T. Lemmon.

      . Defendant had been convicted in a trial before a judge alone on November 17, 1978, but upon defendant’s motion the trial court had granted him a new trial.

      . LSA-R.S. 15:475—Privileged communications between attorney and client—
      No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client’s express consent, to disclose any communication made to him as such legal adviser by or on behalf of his client, or any advice given by him to his client, or any information that he may gave gotten by reason of his being such legal adviser.

      . La.C.Cr.P. art. 844 — “The party appealing shall designate, in writing, those errors which are to be urged on appeal. This assignment of errors shall be filed within the time specified by the trial judge, but not later than five days prior to the return date.
      The trial judge may submit such per curiam comments as he desires.”

      . La.C.Cr.P. art. 920 — “The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” [emphasis supplied].


author: FEDOROFF, Justice Ad Hoc. MARCUS, Justice

text:
    James DORRY v. Goldman LAFLEUR.
    No. 80-C-2440.
    Supreme Court of Louisiana.
    May 18, 1981.
    Rehearing Denied July 2, 1981.

      Steven Broussard, Lake Charles, for plaintiff-applicant.
    Jack Rogers, Lake Charles, for defendant-respondent.
   FEDOROFF, Justice Ad Hoc.

This action for damages was brought by a patron of defendant’s skating rink, for personal injury sustained in a fall caused by water leaking through a defective roof. The district court, finding plaintiff had assumed the risk and was contributorily negligent, dismissed the suit. The court of appeal affirmed (La.App., 387 So.2d 690), finding that plaintiff had assumed the risk of injury.

If ordinary contributory negligence is a viable defense to plaintiff’s claim based on C.C. Art. 2322, we could not say the dismissal of plaintiff’s action here was clearly wrong. If, on the other hand, contributory negligence is not a defense under the facts of this case, the plaintiff here must recover since the record does not support the conclusion that plaintiff voluntarily assumed the risk of injury. The threshold issue posed by this appeal, therefore, is whether the “victim fault” identified in Loescher v. Parr as a defense in a strict liability case, may include ordinary contributory negligence.

The facts of the case at hand are not in dispute. On the evening of the accident, plaintiff had taken his wife, his three sons, ages ten, nine and five, with some of their friends to defendant’s roller skating rink, to celebrate the birthday of one of the sons. Soon after they arrived, it began to rain heavily and two large puddles developed on the south side of the rink opposite the entrance. Despite continuing efforts by the management to remove the water, the puddles spread and merged into an area of twenty or twenty-five feet by six feet. Plaintiff was aware of the wet areas and managed to skate around them safely for approximately one hour. However, there was a third leak at the northeast corner of the rink, which produced a small puddle about eighteen inches in diameter, which plaintiff did not notice until he fell in it.

In Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971), we suggested that in no case of strict liability would ordinary contributory negligence be a defense. The rejection of contributory negligence as a defense to Langlois’s claim based on Allied’s ultrahazardous activity was undoubtedly correct, but our suggestion that contributory negligence may never be a defense to a strict liability case was overbroad.

Where a plaintiff’s negligence contributes to his own damage, there is no reason to ignore his fault in every case simply because the defendant’s liability is based on some legal fault other than negligence. Quite to the contrary, the plaintiff’s negligence should carry more, not less, consequence when the defendant is strictly liable, but less culpable than the plaintiff.

The idea that contributory negligence is not a defense in a strict liability case was borrowed from the common law. Prosser, Law of Torts, 4th, page 522 attempts a justification:

“It frequently is said that the contributory negligence of the plaintiff is not a defense in cases of strict liability. This involves the seemingly illogical position that the fault of the plaintiff will relieve the defendant of liability when he is negligent, but not when he is innocent. The explanation must lie in part in the element of wilful creation of an unreasonable risk to others by abnormal conduct which is inherent in most of the strict liability cases; and in part in the policy which places the absolute responsibility for preventing the harm upon the defendant, whether his conduct is regarded as fundamentally anti-social, or he is considered merely to be in a better position to transfer the loss to the community.”

Such is not the case in Louisiana. As we have interpreted the code, strict liability has been found in circumstances or conduct apparently innocuous. Buckley’s pet dog, Bucher’s bicycle riding child, and Parr’s magnolia tree were neither ultrahazardous nor unnatural to the locality, and produced no income to the defendant. There is no policy reason to deny to these strictly liable defendants the defense of contributory negligence.

Under what circumstances a plaintiff’s contributory negligence should bar his recovery in a strict liability case should be developed on a case by case basis. Because the “ruined” building here housed a commercial enterprise to which plaintiff had paid the price of admission, we hold that in this case plaintiff’s contributory negligence is not a defense to his claim.

If, however, plaintiff can be said to have voluntarily assumed the risk of injury, his claim must be denied. As used here, assumption of risk does not merely bar plaintiff from recovery; rather it says in effect that because of a relationship voluntarily engaged by plaintiff, as to him the defendant has done nothing wrong. Professor Stone explains:

“The establishment of the defense of voluntary assumption of known risk (which as a pleading is not limited to actions based on negligence) means juridically that no tort was committed by the defendant and for that reason the plaintiff’s action against him fails. The rationale is that the plaintiff, having been free to assume or not to assume a known risk, chose to assume it and now cannot be heard to complain of damage caused by that risk.”

While the court of appeal was correct in applying the defense of voluntary assumption of risk to the case, in so doing it erroneously incorporated in the defense an objective element foreign to the doctrine. The crux of the court of appeal’s holding in this case and the error which compelled this writ is contained in this sentence:

“Although he testified that he did not see the puddle which ultimately caused his fall, Dorry knew or should have known that there was a good possibility that water would be present in areas other than the area which he avoided while skating.”

In finding that plaintiff “should have known there was a good possibility that (additional) water would be present.,” the court of appeal imputed knowledge to plaintiff that he did not actually possess, and thereby expanded the risk that plaintiff had himself knowingly assumed. This was error. Plaintiff knowingly assumed only the risk of the large puddle he actually observed and successfully avoided. The courts below were not free to enlarge the scope of his volition by adding to that which he actually saw, that which he should have seen.

The error was induced by language used by this court in the two cases cited by the court of appeal in the case at hand.

In Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976), we had said:

“Recovery is denied if the plaintiff knew or should have known of the risk involved. The defendant argues, and court of appeal also held, that Prestenbach should have known of the driver’s condition simply since he had spent most of the evening with him.
“However, for purposes of knowing assumption of risk, we impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when he actually makes those observations, and from them, should reasonably have known that a risk was involved.”

Again in Bass v. Aetna Ins. Co., 370 So.2d 511 (La.1979), we repeated:

“Knowledge is the mainstay of this assumption of the risk defense, and this court will impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved.’’

To these should be added Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978), (a strict liability products case):

“If Chappuis knew, or should have known of the danger, and chose, nevertheless, to use the dangerous instrument, he would have shared the fault of the manufacturer, and could not recover. Since he did not know, and could not reasonably have been expected to know, he did not share the fault for the accident.”

As was noted in LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Circ. 1980), at page 991:

“The Louisiana Supreme Court in Chappuis v. Sears, Roebuck & Co., 358 So.2d at 930, indicated that a victim would not be allowed recovery in an action for manufacturer’s failure to warn, where he “knew or should have known of the danger, and chose, nevertheless, to use the dangerous instrument.” Although this departs from the traditional formulation of voluntary assumption of the risk by objectifying the element of the victim’s knowledge (“should have known”), it in no way indicates an intention on the part of the Louisiana Supreme Court to expand available defenses to include all forms of contributory negligence.”

The “should have known” phrase was indeed a departure from the usual formulation of the doctrine. The Restatement, Second, Torts, Section 496 D provides:

“Except where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the defendant’s conduct unless he then knows of the existence of the risk and appreciates its unreasonable character.”

Comment b explains:

“The basis of assumption of risk is the plaintiff’s consent to accept the risk and look out for himself. Therefore, he will not be found, in the absence of an express agreement which is clearly so to be construed, to assume any risk unless he has knowledge of its existence. This means that he must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character and extent which make it unreasonable. Thus the condition of premises upon which he may enter may be quite apparent to him, but the danger arising from the condition may be neither known nor apparent, or if known or apparent at all, it may appear to him to be so slight as to be negligible. In such a case the plaintiff does not assume the risk. His failure to exercise due care either to discover or understand the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence.”

Also in 57 Am.Jur.2d “negligence” Sect. 281, we find:

“The defense of assumption of risk presupposes (1) that the plaintiff had some knowledge of the danger; (2) that he understood and appreciated the risk therefrom, and (3) that he voluntarily exposed himself to such risk. Therefore, except where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the defendant’s conduct unless he then knows of the existence of the risk and appreciates its unreasonable character, including the magnitude thereof, and voluntarily accepts the risk.”

Chappuis, Prestenbach and Bass each held the plaintiff had not assumed the risk, even applying the objective notion inherent in the phrase “should have known.” Since the imposition on plantiff of an objective standard did not defeat his case, the imposition of the more onerous standard might be considered dicta. Furthermore, the variation from the usual expression of assumption of risk was unexplained, and probably unintentional. In any event, we now subscribe to the formulation expressed in the Restatement.

This is not to say that the plaintiff’s disclaimer of knowledge or appreciation must be taken at face value. This is a fact question. And there are some risks that every man must be held to appreciate, (see Restatement, supra, comment d). There is a plain difference, however, between what one must have known (a finding of actual knowledge) and what one should have known (the imposition of an objective standard of care).

The trial court did not find that plaintiff must have been aware of the puddle which caused his fall. It found only that he should have been aware of it. But such a negligent failure to know is not a defense in a case where contributory negligence does not bar plaintiff’s recovery.

The question of damages was not addressed by the courts below and the case will be remanded to the court of appeal for an assessment of quantum. Chappuis v. Sears, Roebuck & Co., supra. Holland v. Buckley, 305 So.2d 113 (La.1974).

Reversed and remanded to the Court of Appeal, Third Circuit. '

DENNIS, J., concurs.

DIXON, C. J., concurs in the result only.

WATSON, J., concurs in the result.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

Whether or not contributory negligence is a valid defense to a claim of strict liability under La.Civ.Code art. 2322,1 am unable to say that the trial judge was clearly wrong in finding that plaintiff assumed the risk of injury. It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger because of the risk. McInnis v. Fireman’s Fund Insurance Co., 322 So.2d 155 (La.1975). Knowledge is the mainstay of this defense, and this court will impute knowledge to a plaintiff not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved. Bass v. Aetna Insurance Company, 370 So.2d 511 (La.1979); Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976).

In the instant case, plaintiff testified that he observed puddles of water which had been forming on the rink floor for approximately one hour before he fell and had been skating around them. I consider that from these observations, plaintiff should have known that the rink was dangerous due to puddles on the floor caused by a defective roof. Nevertheless, he voluntarily and knowingly exposed himself to any risks resulting from skating in the rink including skating and falling in the puddle which ultimately caused his injury. Accordingly, I respectfully dissent.

      .“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under the circumstances.” Smolinski v. Taulli, 276 So.2d 286, 290 (La.1973).

      . “The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”

      . 324 So.2d 441 (La. 1975).

      . Holland v. Buckley, 305 So.2d 113 (La.1974)

      . Turner v. Bucher, 308 So.2d 270 (La.1975)

      . Loescher v. Parr, 324 So.2d 441 (La.1975)

      .12 Louisiana Civil Law Treatise: Tort Doctrine, Sect. 51(A) Pg. 72.