text:
    STATE of Louisiana v. Salvadore BURTON.
    No. 66090.
    Supreme Court of Louisiana.
    April 7, 1980.
    John J. Dolan, New Orleans, for defendant-relator.
    William J'. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

Defendant Salvadore Burton was charged by bill of information with a violation of R.S. 40:1788 in that he “did willfully and unlawfully have in his possession an unregistered pistol on which the serial number had been obliterated.” He filed a motion to quash the bill of information contending that R.S. 40:1788 violates constitutional guarantees under the Fifth and Fourteenth Amendments of the United States Constitution and Article 1 §§ 2, 13 and 16 of the Louisiana Constitution. After the trial judge denied the motion to quash relator sought writs here and we granted. 377 So.2d 857 (La.1979).

Louisiana Revised Statute 40:1788 provides in full:

“A. Each manufacturer, importer, and dealer in any firearm shall identify it with a number or other identification mark approved by the department and shall mark or stamp or otherwise place the number or mark thereon in a manner approved by the department.
“B. No one shall obliterate, remove, change, or alter this number or mark. Whenever, in a trial for a violation of this Sub-section, the defendant is shown to have or to have had possession of any firearm upon which the number or mark was obliterated, removed, changed, or altered, that possession is sufficient evidence to authorize conviction unless the defendant explains it to the satisfaction of the court.”

Our concern in granting the writ focused upon whether this statute, which makes possession of a firearm upon which the number has been obliterated, removed, changed or altered “sufficient evidence to authorize conviction” for obliterating the number, shifts, to the defendant the burden of establishing his innocence. The constitutionality of presumptions such as this one has been considered in a number of recent state and federal decisions. The presumption in R.S. 40:1788(B) appeared to us to be constitutionally suspect under our recent decision in State v. Searle, 339 So.2d 1194 (La.1976) and the United States Supreme Court decision in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).

Upon reviewing the record in this case, however, we find that the issue of the constitutionality of the presumption in R.S. 40:1788(B) need not be decided. Relator’s motion to quash should have been granted for a reason unrelated to the constitutionality or unconstitutionality of that provision.

The bill of information does not charge a violation of R.S. 40:1788. Defendant was charged with possessing a pistol on which the serial number had been obliterated. R.S. 40:1788 simply makes criminal obliterating, removing, changing or altering the number or mark on a firearm. It does not proscribe the possession of such a weapon.

Inasmuch as the bill of information does not charge defendant with conduct which is criminal under R.S. 40:1788, defendant’s motion to quash the bill should have been granted. We, therefore, need not consider the constitutionality of the presumption created by the second sentence of section B of R.S. 40:1788.

Decree

For the foregoing reasons the ruling of the trial court denying relator’s motion to quash is reversed. The motion to quash is granted.

TRIAL COURT RULING REVERSED; MOTION TO QUASH GRANTED.

      The Honorable Edward A. de la Houssaye 111 participated in this decision as an Associate Justice pro tempore.

      . In that motion defendant contended that the presumption created by R.S. 40:1788(B) is unconstitutional because it requires a defendant to prove his innocence, to give evidence against himself, and to waive his right to remain silent.

      . In State v. Searle, supra, this Court held that the presumption in R.S. 15:432 that the person in unexplained possession of recently stolen property is the thief could not be judicially extended to a burglary charge. There we observed that before the “jury can be told that if it finds one proven fact it must presume that another is true, the inference must be one which reasonable minds beyond a reasonable doubt could draw from the proven fact.”
      The statutory presumption that a person found in possession of marijuana also had knowledge that it had been illegally imported was found unconstitutional in Leary v. United States, supra. The United States Supreme Court held that “a presumption must be regarded as ‘irrational’ or ‘arbitrary’ and hence unconstitutional, unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend."

      . The entire bill of information in pertinent part reads as follows:
      “that one SALVADORE BURTON, late of the Parish of Orleans, on the twenty-fourth day of May in the year of our Lord, one thousand nine hundred and seventy-nine in the Parish of Orleans aforesaid, and within the jurisdiction of the Criminal Court for the Parish of Orleans, did wilfully and unlawfully have in his possession an unregistered pistol on which the serial number had been obliterated, contrary to the form of the Statute of the State of Louisiana in such case made and provided and against the peace and dignity of the same.”


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    Jo Ann Chatelain, wife of/and Clayton CHATELAIN and Nobie Evans v. Cora L. PAYZANT.
    No. 66093.
    Supreme Court of Louisiana.
    April 7, 1980.
    Darleen M. Jacobs, New Orleans, for plaintiffs-respondents.
    James H. Drury, Drury & Lozes, New Orleans, for defendant-applicant.
   WATSON, Justice.

This is a lawsuit arising out of an inter-sectional collision in the City of New Orleans. Jo Ann Chatelain, the owner and driver of one of the automobiles, joined with her husband Clayton and guest passenger Nobie Evans to claim damages from the owner and driver of the other automobile, Cora L. Payzant. Defendant Payzant reconvened against the Chatelains asking indemnification or contribution as to any judgment in favor of Nobie Evans. The trial court concluded that the accident re-suited solely from the negligence of Jo Ann Chatelain. Judgment was rendered in favor of defendant, dismissing plaintiffs’ suit, and plaintiffs appealed. After reargument before a five judge panel, the Court of Appeal concluded that both drivers were negligent and reversed in part to award guest passenger Evans damages of $12,800 against defendant Payzant. A writ was granted at the instance of Cora L. Payzant to review the judgment.

Defendant Payzant contends that the Court of Appeal erred in finding her guilty of negligence and, in the alternative, if she should be found guilty of negligence, that she is entitled to recover against Jo Ann Chatelain on her reconventional demand.

Prior to the collision, defendant Payzant was in the process of making a U-turn through the neutral ground of Carrollton Avenue. Ms. Chatelain had been stopped at a stop sign on Pritchard Place, an intersecting street. Pritchard Place forms a T-intersection with Carrollton. The impact involved the left front bumper of the Chate-lain truck and left front fender of the Pay-zant car. Both Jo Ann Chatelain and Nobie Evans said that the Chatelain panel truck was already in the neutral ground of Car-rollton Avenue when the Payzant automobile turned into it from the lake-bound lanes of Carrollton. According to Mrs. Pay-zant, she had her left blinker on and was completing her U-turn from the neutral ground into the river-bound lanes of Car-rollton when the Chatelain truck suddenly pulled out from the stop sign into her path.

The damage to. both vehicles was very minor. The three judge majority of the Court of Appeal stated that Cora Payzant was negligent in leaving her place of safety in the neutral ground and failing to see the Chatelain truck. Cora Payzant said she expected the truck to remain stationary at the stop sign. The location of the damage indicates that defendant Payzant was turning to the left when the collision occurred.

The first question is whether the Court of Appeal was correct in finding defendant Payzant as well as plaintiff Chate-lain negligent. Cora Payzant’s U-turn necessitated two left turns, one into the neutral ground and one out of that area. She was required to yield the right-of-way to other vehicles. LSA-R.S. 32:122. Both drivers were proceeding at a slow speed and the inescapable conclusion is that the slight impact could have been avoided if they had been properly alert and attentive. The Court of Appeal did not err in finding Cora Payzant’s negligence to be a cause in fact of the accident.

The second question is whether the Court of Appeal was correct in not awarding defendant Payzant judgment on her reconventional demand for contribution against the Chatelains. Defendant Payzant did not appeal or answer the appeal but contends that it was not necessary because the reconventional demand was not disposed of by the trial court judgment, which dismissed plaintiffs’ suit.

It has been held that a judgment for plaintiff by implication rejects a reconven-tional demand on the part of defendant. Rester v. Davidson, 29 So.2d 527 (La.App. 1 Cir. 1947). However, where, as here, there is a judgment in favor of defendant, there is no implied rejection of defendant’s recon-ventional demand.

In Walker v. Jones, 257 La. 404, 242 So.2d 559 (1970) it was held that the trial court was not divested of jurisdiction over a third party action when that action had not been adjudicated and was not reviewable on appeal.

At the time this judgment was signed, the trial court could not have decided the reconventional demand because it only asked indemnification or contribution, if Cora Payzant was cast in judgment. The judgment was in her favor and it was unnecessary to decide the reconventional demand. When the Court of Appeal reversed the trial court judgment in part, the trial court retained jurisdiction over the recon-ventional demand. It was unnecessary for defendant Payzant to appeal or answer the appeal because the reconventional demand had never been decided. Therefore, the matter will be remanded to the trial court for judgment on Cora Payzant’s reconven-tional demand for contribution against Clayton and Jo Ann Chatelain.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

       Honorable Edward A. de la Houssaye, III participated in this decision as Associate Justice ad hoc.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Huey P. BEAVERS.
    No. 66097.
    Supreme Court of Louisiana.
    April 7, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., R. Greg Fowler, Asst. Dist. Atty., for plaintiff-appellee.
    Stephen E. Everett, Alexandria, for defendant-appellant.
   DENNIS, Justice.

On May 10,1979, defendant Huey P. Beavers was charged with the crime of operating a motor vehicle while intoxicated, fourth offense, in violation of La.R.S. 14:98(E). He pleaded not guilty and was tried by a jury which delivered a verdict of guilty as charged. Defendant was thereafter sentenced to a term of imprisonment at hard labor for ten years. In this appeal, defendant relies on two assignments of error, arguing that the minimum mandatory sentence of ten years’ imprisonment at hard labor for DWI fourth offense is unconstitutionally cruel, excessive or unusual. We hold that a penalty of ten years’ imprisonment at hard labor is not cruel, excessive or unusual punishment for an offender who has been found guilty of DWI at least four times within a five year period. The defendant’s conviction and sentence are affirmed.

Huey P. Beavers was arrested by officers of the Alexandria Police Department on May 9, 1979 and was charged with driving while intoxicated, fourth offense. According to the arresting officers at the time of the arrest defendant’s breath smelled strongly of alcohol; his speech was mumbled and slurred; he almost fell down when he got out of his car; and prior to his arrest, defendant’s vehicle was swerving all over the road. From defendant’s numerous convictions of DWI, the state used the prior convictions of January 1977, April 1977, and March 1978 as the three previous convictions required by La.R.S. 14:98 for a valid charge of DWI fourth offense. The April 1977 and March 1978 convictions resulted from the prosecution’s acceptance of defendant’s guilty plea to DWI third offense after he had been charged originally with DWI fourth offense.

The defendant does not attack his conviction of DWI fourth offense, but contends that the mandatory ten-year minimum sentence for this crime is cruel, excessive and unusual punishment. Under both the federal and state constitutions the imposition of punishment which is deemed cruel or unusual is prohibited. U.S.Const. 8th Amend.; La.Const. 1974, Art. 1, § 20. Although there is no specific prohibition against excessive punishment in the federal constitution, in determining what is cruel and unusual punishment under the Eighth Amendment, excessiveness is a proper consideration. See, e. g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2681, 53 L.Ed.2d 982 (1977); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Excessive punishment under the Eighth Amendment’s prohibition against cruel and unusual punishment is punishment that is grossly out of proportion to the severity of the crime. Coker v. Georgia, supra; Gregg v. Georgia, supra; Weems v. United States, supra.

The Louisiana constitution specifically prohibits “cruel, excessive or unusual punishment.” La.Const. 1974, Art. 1, § 20. In State v. Terrebonne, 364 So.2d 1290 (La. 1978) and State ex rel. Mallery v. Blackburn, 364 So.2d 1283 (La.1978), in holding a mandatory minimum sentence of life imprisonment for distribution of heroin was not cruel, excessive or unusual punishment, we considered the punishment and the crime in light of the harm to society caused by its commission and determined that the penalty was not so disproportionate to the crime committed as to shock the sense of justice.

It is evident that the legislature’s purpose in providing for a ten-year minimum sentence for DWI fourth offenders was to protect the public from the high potential of danger caused by the habitual drunken driver. The punishment is admittedly severe, yet we believe that it reasonably corresponds to the risk that innocent people will be killed or harmed by drivers convicted of driving while intoxicated on at least four occasions within a five-year period. The risk of harm to society is so great that the legislature deemed it necessary to increase the severity of the punishment substantially for each subsequent conviction.

It must' be emphasized that the statutory scheme does not impose the mandatory ten-year minimum sentence on all those convicted of driving while intoxicated. This sentence is reserved for those who have been convicted at least three times previously of driving while intoxicated; all four convictions must have occurred within a five-year period. The fact that a person has at least three previous convictions is certainly an aggravating circumstance militating in favor of a severe penalty.

In light of the high potential for harm to the innocent public and the statutory requirement that before the minimum penalty of ten years imprisonment can be imposed, the offender must have been convicted of DWI at least four times within a five year period, we do not believe that the sentence is unconstitutionally cruel, excessive, or unusual. The penalty imposed is not so grossly disproportionate to the severity of the crime involved to shock our sense of justice.

We hold that the ten year minimum sentence mandated by La.R.S. 14:98 for DWI, fourth offense, is not unconstitutional. Defendant’s conviction and sentence are affirmed.

AFFIRMED.

       The Honorable Edward A. de la Houssaye, III participated in this decision as an Associate Justice pro tempore.

       Moreover, La.R.S. 14:98 does not deprive the defendant of the possibility of parole. La.R.S. 15:574.4.


author: GULOTTA, Justice Ad Hoc. DIXON, Chief Justice MARCUS, Justice

text:
    Fred DANIELS v. Halcott L. CONN et al. and State of Louisiana.
    Nos. 66104, 66416.
    Supreme Court of Louisiana.
    April 7, 1980.

      James J. Brady, Gravel, Roy & Burnes, Alexandria, for defendant-applicant in 66416 and for defendant-respondent in 66104.
    Steven R. Giglio, Louisiana Dept, of Health and Human Resources, Baton Rouge, for defendant-applicant in 66104 and for defendant-respondent in No. 66416.
    Kramer & Davis, James M. Buck, Antoon, Dalrymple & Beck, Joseph T. Dalrymple, Alexandria, for plaintiffs-respondents in both cases.
   GULOTTA, Justice Ad Hoc.

Plaintiff, the father of a mentally retarded young man killed in a pedestrian-automobile accident while a resident at Pine-crest State School, was awarded a judgment against the State of Louisiana and also Halcott L. Conn, a Pinecrest employee and driver of the vehicle. Based on a showing of Conn’s inability to respond to the fullest extent of the $35,000 damage award, the trial judge held the State of Louisiana and Halcott L. Conn liable in solido for $6,000. He held the State solely liable for the remaining $29,000.

Concluding that the “inability of a defendant to pay” doctrine is inapplicable when a joint tortfeasor, liable in solido, is solvent, the court of appeal amended the trial court’s judgment to hold the State of Louisiana and Halcott Conn liable in solido for the entire amount of the $35,000 award.

Both the State and .Conn applied for writs to this Court and both applications were granted. The State complains that the trial judge and the court of appeal erred in concluding that the Pinecrest State School breached its duty of care to protect the resident, Roy Daniels. Recognizing the school’s duty to promote patient safety, the State contends it provided reasonable care to properly and adequately supervise Daniels, consistent with his particular needs, and also with the approved open therapeutic treatment program followed at Pine-crest.

Defendant Conn contends the court of appeal erred in holding that the inability to pay rule is inapplicable where there is a solvent joint tortfeasor liable in solido with the insolvent tortfeasor. Conn argues the trial judge properly applied the rule in concluding that Conn could respond only to the extent of $6,000 of the $35,000 judgment.

We find no error by either the trial judge or the court of appeal in concluding that the State of Louisiana and Halcott Conn are joint tortfeasors. Moreover, we find the court of appeal correctly refused to apply the inability to pay rule under the circumstances in this case. Accordingly, we affirm the court of appeal judgment.

Roy Daniels had been a patient at the Pinecrest State School for approximately 12 years before the accident occurred. His chronological age was 28, but his mental age was seven and one-half years, as determined by the trial judge and supported by the record. On November 12, 1977 he was killed when struck by a car driven by Hal-cott Conn. Conn, an electrician employed by the school, was returning to his employer-provided residence located on the school grounds. At the time of the accident, Roy was walking near the middle of one of the school’s main two-way streets, pulling a small wagon containing phonograph records and recording equipment. As had been his usual duty over a period of more than ten years, Roy was transporting the records, which had been played at a school dance earlier that evening. He was taking the records from a recreation hall on the school grounds to the office where the records were kept.

According to Conn, on the Saturday night on which the accident occurred, he was returning to his home at approximately 8:15 p. m. He testified that he had left the grounds about 3 p. m. that day to go hunting. Returning from his outing, he had stopped on his way home at a bar, where he drank approximately five beers. The weather was clear, and there were no curves in the roadway approaching the accident site. It was dark, but the street was lighted with street lights.

Conn stated that he saw Roy approximately twelve feet in front of the automobile, but was unable to stop in time to avoid hitting him. Roy was walking in the direction of the oncoming automobile, near or in the middle of the street, pulling the wagon. Conn was traveling approximately 25 mph in the posted 15 mph area. According to the investigating Louisiana State Police officer, the intoximeter test and his own observations confirmed that Conn was intoxicated at the time of the accident. There were no skid marks at the scene.

LIABILITY OF HALCOTT CONN

Conn’s liability is undisputed. The circumstances surrounding the accident clearly' established Conn’s liability for Roy Daniels’ death. Furthermore, no serious contention is made before this Court that plaintiff’s claim is barred by Roy’s contributory negligence. '

LIABILITY OF THE STATE OF LOUISIANA

A. RESPONDEAT SUPERIOR

In his “tentative” oral findings of fact, apparently dictated immediately after the matter was submitted, the trial judge concluded that no showing had been made to establish liability of the State based on re-spondeat superior. Although the court of appeal did not address the respondeat superior question, we feel compelled to do so. Conn was an employee of Pinecrest State School, which was under the supervision of Louisiana Department of Health and Human Resources, a state agency.

The question arises whether, at the time of the accident, while returning to his employer-furnished home on the school grounds after normal working hours, he was within the course and scope of his employment. The test to be applied was whether he was performing some function for his employer and for which he was employed. LSA-C.C. art. 2320; Orgeron v. Sweatman, 367 So.2d 1199 (La.App. 4th Cir. 1978), writ denied, Cheramie v. Sweatman, La., 371 So.2d 615. More specifically, the inquiry is whether the employee’s tortious conduct “was so closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests.” LeBrane v. Lewis, 292 So.2d 216, 218 (La. 1974).

The resolution of this issue, as we view it, depends to a large extent on whether Conn, employed as an electrician, was on duty after working hours at the time of the Saturday night accident, regardless of the fact that he was returning to his employer-furnished house located on the school grounds. In this connection Conn testified that he was paid a monthly salary, lived on the grounds, and was subject to 24-hour call if emergencies arose. Normal working hours for electricians were 7:30 a. m. to 4 p. m., Monday through Friday. Although there were other electricians employed by the school, only Conn and Donald Guadag-noli, the electrician foreman, lived on the school grounds in housing provided by Pine-crest. According to Conn, he was on call every Saturday and Sunday, except when arrangements were made for other people to be on call. He described “on call” as being available for emergency calls after 4 p. m. and being able to respond to an emergency within 30 minutes of the call. This required informing his wife or others where he could be located in the event he was not at home. He stated that on the night of the accident, he was on call and was returning home for that purpose.

According to Guadagnoli, however, he was on duty on the weekend of the accident, while Conn had the weekend off. Guadagnoli testified that another electrician had worked on Saturday from 7:30 to 4 p. m. and Guadagnoli’s on-call duty for emergencies commenced at 4 p. m. The foreman stated that he had received and responded to two calls on that evening. He explained that the electricians who lived on the grounds are not necessarily on call on a 24-hour basis. The agreement among them was that each would work every third or fourth weekend. He further testified there were two or three other electricians in addition to Conn and himself. Conn disagreed with Guadagnoli’s testimony that Conn had not been on duty on the fateful Saturday night.

Coates Stuckey, the school administrator, corroborated Guadagnoli’s testimony. He stated that employees who lived on the grounds were not expected to be on call 24 hours a day, seven days a week, 365 days a year. According to Stuckey, usually the electrician foreman and the electrician living on the grounds reached an understanding that one or the other would be on call during off hours.

In the trial judge’s “tentative findings”, he accepted Guadagnoli’s testimony regarding whether Conn was on call on the night of the accident. This finding obviously is based on a credibility determination. Considering Conn’s activities on November 12th, together with Guadagnoli’s testimony and its corroboration by Stuckey, we are led to conclude, as did the trial judge, that Conn was not “on duty” on the date of the accident. Having so concluded, we find no error in the trial court’s rejection of liability against the State based on respondeat superior.

B. FAILURE TO PROVIDE SUPERVISION AND PROTECT DECEDENT

In Hunt v. Bogalusa Medical Center, 303 So.2d 745, 747 (La.1974), this Court, setting forth the care required to be exercised toward a patient, stated:

“A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.”

We accept the State’s argument that recent legislation amending the Louisiana Mental Health Law reflects “legislative resolve to provide involuntary treatment that is at once ‘medically appropriate’ and ‘least restrictive of the patient’s liberty’.” Nevertheless, we conclude under the circumstances of this case that the State failed to provide proper supervision and care to protect Roy Daniels from danger. The risk of injury by vehicles is within the ambit of the duty of care and supervision the Pine-crest State School owed this particular resident.

According to Stuckey, there are approximately 2100 residents and 1700 employees at Pinecrest. There are paved and blacktopped roads traversing the approximately 300-acre grounds. Vehicles enter and leave the school grounds through one entrance, and the balance of the area is completely fenced. Stuckey testified that a security officer is at the gate from 7 a. m. to 4 p. m., seven days a week. After 4 p. m., the entrance to the school grounds is unattended and open, permitting vehicles to enter and leave at any time, as there actually was no gate at the entrance. One patrol car makes rounds of the area after 4 p. m., and makes routine checks of the entrance. Significantly, Stuckey testified that the school did have problems in the nature of people driving too fast on the grounds. The purpose of the patrol was to curtail this driving at excessive speeds, and there were speed limit signs posted throughout the school grounds. Stuckey also testified there were mercury vapor lights along the streets that operated on a photo-electric switch, going on at sundown and off at sunrise.

Eddie Gaspard, a security officer at Pine-crest, stated that the sign at the gate merely stated “Drive Carefully”. It did not .indicate that pedestrians had the right-of-way. According to Gaspard, there was a traffic sign in the area of the accident which stated, “Stop for Pedestrians in Crosswalk”. He testified that classes on safety were conducted and that in some areas of the school grounds there were sidewalks, but in others there were none. There were no “safety bumps” on the street to force vehicular traffic to maintain a slower speed. Residents were given the right-of-way over vehicular traffic and patients generally were allowed to roam freely around the campus grounds. According to Gaspard, Pinecrest depends to a large extent on the discretion of adult drivers.

Gaspard also testified that he knew Roy and was aware that Roy had a habit of walking in the middle of the street. He had cautioned Roy on several occasions to get on the sidewalk or to walk on the side of the street, particularly when he was pulling his wagon or riding a bicycle. He stated that he had never talked about Roy’s dangerous habit to persons responsible for Roy’s privileges and responsibilities.

Coates Stuckey and Peter Chandler (the assistant superintendent and director of psychological services at the institution) explained that the extent of the privileges and supervision accorded to each resident is determined by a committee. This committee is usually composed of a physician, a social worker, a pathologist and a staff representative living on the school grounds. Chandler described the school as a free-open environment, conducive to and leading to a more rapid improvement. He stated that residents had freedom to move as they willed. Based on his observations of Roy, Chandler did not feel that additional supervision or restrictions were required for him. He pointed out that Roy had permission to go off the school grounds. According to Chandler, Roy was in the upper population group which required less supervision, but he did not have total freedom. He had a work responsibility, was assigned to a job, and was supervised within limits. According to Chandler, merely because a resident violated traffic safety regulations did not necessarily mean he should be more closely supervised. Chandler did state, however, that if a patient habitually walked into the street, or disregarded the vehicular traffic, he might require an attendant or an escort.

Royce Eznak, the recreation supervisor, testified he knew Roy and had watched Roy on the night of the accident as he left the dance to transport the records. Roy was alone and unescorted. The distance he had to cross between the recreation hall and the office was approximately three or four blocks. According to Eznak, some patients were brought to and from the recreation hall in buses. Those who walked traveled in groups supervised by employees. Eznak testified that, had he seen Roy pulling the wagon in the middle of the street prior to the accident that evening, he would have attempted to supervise, lead or help him. Significantly, Eznak testified that on the night of the accident, an employee had preceded Roy by bus in order to open the gate at the entrance of the office where the records were stored. The employee went by bus. Roy walked unescorted.

Stuckey described Roy as one who had a great love for people, liked to be included in things, was quick to learn, and took pride in his work. All things considered, Stuckey stated, Roy had an unusual mechanical aptitude. Stuckey indicated that Roy did not require an escort. He had been allowed to leave Pinecrest unescorted, in the daytime, on three separate occasions. On other occasions, he had been permitted to leave the school grounds accompanied either by an employee or by his family. Stuckey testified that Roy was not capable of living in society away from Pinecrest without supervision. Neither Roy nor other residents were permitted to be off campus after dark, unescorted.

The Pinecrest school grounds were an open environment, in which vehicles had complete and unrestricted freedom to enter in evenings, and there were 1700 employees who had access and use of these streets. There were no protective street barriers to reduce the vehicular speed. Moreover, the school failed to provide an escort to, or to supervise at night, a patient known to have a seven and one-half year old mentality and a habit of walking in the middle of the street. Considering all these circumstances, we are led to conclude, as did the trial judge and the court of appeal, that the state school violated its duty to Roy by failing to provide adequate supervision for his safety. Although we recognize the therapeutic value of encouraging residents to be more self-reliant, the scope of the school’s duty encompassed the risk that Roy might be struck by an automobile while walking unescorted at night on the school grounds. The injury was foreseeable, regardless of whether or not the driver was intoxicated. Accordingly, we conclude the trial judge and the court of appeal were correct in finding the State of Louisiana liable.

QUANTUM

The trial judge awarded plaintiff $35,000 in general damages for loss of love and affection. He made no award for pain and suffering because the evidence showed Roy was knocked unconscious by the accident and remained in that condition until he died a few hours later, while being transported in an ambulance to a Baton Rouge hospital. We conclude under these circumstances, plaintiff failed to show entitlement to damages for pain and suffering. Both plaintiff and Roy’s sister, however, testified regarding the close relationship between Roy and his father. Fred Daniels made faithful visits to the school approximately twice a month. On holidays and on other occasions, he took Roy home on visits, as well as on hunting trips. His description of the enjoyment both he and Roy derived from these visits were corroborated by Roy’s sister. This evidence considered, we find no abuse of discretion in the amount of the award for loss of love and affection.

APPORTIONMENT OF THE AWARD

Based on testimony that Halcott Conn was impecunious at the time of trial, the trial judge invoked the “inability to pay” doctrine and limited Halcott Conn’s in soli-do liability with the State to $6,000. In addition, the judge held the State solely liable for an additional $29,000. The court of appeal reversed, concluding that where one of several joint tortfeasors is solvent, the rule requiring the court to consider a defendant’s inability to pay is inapplicable. The thrust of Conn’s argument is that the court of appeal erred in refusing to consider his inability to pay and in holding him liable in solido with the State for the entire $35,-000 award.

The inability to pay rule was recognized as early as 1886 in the case of Williams v. McManus, 38 La.Ann. 161. In that case, in an action for damages for slander, the court pointed out, in passing, that the defendant was a “laborer” and of “limited means” and that the jury had not made a “proper and commensurate allowance and went beyond the limits to be observed in such cases.” The court then reduced the judgment from $2,000 to $500. See also, Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (1898), in which the court stated that a person’s circumstances may be considered in estimating damages to be awarded in a personal injury case. The obvious purpose of the rule is based on the equitable principle that courts will not grant vain and useless relief or render a judgment incapable of execution. Williams v. Garner, 268 So.2d 56 (La.App. 1st Cir. 1972).

Recognition of the inability to pay doctrine is not the problem in the instant case. Rather, the question is whether the doctrine is applicable where there are joint tortfeasors liable in solido, one solvent and the other insolvent. Relying on LSA-C.C. arts. 2098, 2103, 2104 and 2324, and Qua- tray v. Wicker, 178 La. 289, 151 So. 208 (1933), the State argues that a debtor’s insolvency is a personal defense which may be asserted only when the solvent co-debtor seeks contribution from the insolvent co-debtor after payment of the judgment or obligation. Accordingly, the State contends that any evidence of the defendant’s inability to pay is premature, and inadmissible, in determining the amount to be awarded to a plaintiff on the trial on the merits in a tort suit. We agree.

In Howell v. Knight, 193 So.2d 282 (La.App. 1st Cir. 1966), the court stated that where codefendants are cast jointly and in solido, the evidence must show the inability of all defendants to respond before a judgment is rendered in a lesser amount than would ordinarily be assessed against solvent defendants. In the instant case, defendant Conn acknowledges that where there exist solvent and insolvent co-debtors in solido, evidence of insolvency may not be considered for the purpose of reducing the amount to be awarded plaintiff. He contends, nevertheless, that such evidence is admissible at trial on the merits, as between the co-obligors, to limit the liability of the insolvent defendant. We do not agree. LSA-C.C. art. 2324 provides:

“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

As this article states, each joint tort-feasor is liable to the fullest extent for the damages caused plaintiff. See also, LSA-C.C. art. 2315 and 2091. Because either of the two solidary obligors may be responsible for payment of the amount of the judgment, the inability of one solidary co-obli-gor to pay does not become relevant until the solvent co-obligor seeks contribution from the insolvent one.

In Brown v. New Amsterdam Casualty Company, 243 La. 271,142 So.2d 796 (1962), this Court stated that, although the injured party’s cause of action against either or both of two joint tortfeasors comes into being and the obligation of each tortfeasor to the injured party commences at the time a tort is committed, the rights and obligations as between the joint tortfeasors do not then arise, because the obligations between the joint tortfeasors are not created by the commission of the tort, but rather spring from the principle of contribution.

In accordance with Brown, we conclude that where there are solvent and insolvent joint tortfeasors liable in solido, evidence of the insolvent defendant’s inability to pay may not be considered by the trial judge in determining damages to be awarded to the plaintiff, or in apportioning damages as between those joint tortfeasor defendants at the trial on the merits of plaintiff’s claim. Having so concluded, we affirm the judgment of the court of appeal, with the exception that costs are to be paid by the State. As amended, affirmed.

AMENDED AND AFFIRMED.

DIXON, C. J., concurs with reasons.

EDWARD A. de la HOUSSAYE, J. ad hoc, concurs and assigns reasons.

MARCUS, J., dissents and assigns reasons.

DIXON, Chief Justice

(concurring).

In addition, since Conn lived on the grounds as a condition of his employment, respondeat superior should apply.

EDWARD A. de la HOUSSAYE, Justice Ad Hoc, concurring.

I concur with the majority decision affirming the award to plaintiff; finding liability on defendants Daniels and the State of Louisiana, in solido, and the quantum of damages.

However, in discussing the apportionment of the award, the majority appears to adopt a rule that

“where there are solvent and insolvent tortfeasors liable in solido, evidence of the insolvent defendant’s inability to pay may not be considered by the trial judge (trier of fact) in determining damages to be awarded to the plaintiff, or in apportioning damages as between those joint tortfeasor defendants at the trial on the merits of plaintiff’s claim.”

If I interpret this, and other language in the opinion correctly, the majority would preclude the admissability of evidence, at the trial on the merits, of defendant’s inability to pay, in assessing damage.

This view is, in my judgment, incorrect. Initially, it would appear that no determination can be made as to which, if any, defendants at trial, either solvent or insolvent, are liable, until the trier of the facts has rendered a verdict. It may only then be determined which of the defendants, if any, are held liable. If only the solvent defendant(s) are cast, no problem arises. But if only the insolvent defendant is held liable, or if the insolvent and solvent defendants) are held liable in solido, after verdict, and the insolvent defendant has been precluded from admitting evidence of his inability to pay, how then could that insolvent defendant limit his liability?

It would appear to me the better rule would be to allow the insolvent, or impecunious defendant to introduce evidence at trial of his inability to pay, and after ver-diet on the issue of liability of the parties, allow the trier of the fact to determine the issue of the insolvent defendants’ inability to pay.

I do not reach the issue of contribution between joint tortfeasors, liable in solido, as that issue is not before us.

MARCUS, Justice

(dissenting).

I agree with all findings of the majority except its finding that the state is liable. I consider the state provided reasonable care and adequately supervised Daniels, consistent with his particular needs, and also with the approved open therapeutic treatment program following at Pinecrest. Accordingly, the award for damages should be limited to six thousand dollars in view of Conn’s inability to pay. I respectfully dissent.

      . A curator ad hoc was appointed to represent Ruby Howell Daniels, absentee mother of the decedent and divorced wife of plaintiff. Her intervention in the suit was dismissed with prejudice, and there was no appeal on her behalf.

      . Roy was described by the director of psychological services at Pinecrest as educable or mildly mentally retarded, with an I.Q. range of between 49 and 60.

      . LSA R.S. 28:1 et seq., as amended by Acts 1977, No. 714, § 1; Acts 1978, No. 680, § 1; Acts 1978, No. 782, § 1, effective July 17, 1978. See also, 52 Tul.L.Rev. 542 at 544, 545 (1978).

      . Conn testified that he was not working due to a ruptured disc, nor was he receiving workmen’s compensation, and he had no income other than that derived from his wife’s occasional substitute teaching. He testified he owned two acres of land on which is a small house in disrepair, having an approximate value of $5,000; that he had three children, ages 16, 14 and 7; and that he and his family existed on loans from his brother-in-law. Conn was an uninsured motorist at the time of the accident.

      . This well-established rule has been followed by the courts of this state in numerous cases. See e. g., Nugent v. U-Haul Company, 368 So.2d 781 (La.App. 2nd Cir. 1979); Tarver v. U Haul Company, Inc., 362 So.2d 1157 (La. App. 2nd Cir. 1978); Barnett v. Vanney, 360 So.2d 617 (La.App. 4th Cir. 1978); Landry v. Martin, 353 So.2d 449 (La.App. 3rd Cir. 1977), writ denied, La., 355 So.2d 257; Raggio v. Volkswagen Insurance Company, 327 So.2d 505 (La.App. 3rd Cir. 1976); Urk v. Southern Farm Bureau Casualty Insurance Co., 181 So.2d 69 (La.App. 2nd Cir. 1965), writ denied, 248 La. 909, 182 So.2d 661.

      .Arts. 2098, 2103, 2104 and 2324 read as follows:

        “Art. 2098. A codebtor in solido, being sued by the creditor, may plead all the exceptions resulting from the nature of the obligation, and all such as are personal to himself, as well as such as are common to all the codebtors. He can not plead such exceptions as are merely personal to some of the other codebtors.”

        “Art. 2103. When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi contract, an offense, or a quasi offense, it should be divided between them. As between the solidary debtors, each is liable only for his virile portion of the obligation.
      A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce contribution, if he is cast, against his solidary co-debtor by making him a third party defendant in the suit, as provided in Article [Articles] 1111 through 1116 of the Code of Civil Procedure, whether or not the third party defendant was sued by the plaintiff initially, and whether the defendant seeking to enforce contribution if he is cast admits or denies liability on the obligation sued on by the plaintiff. (As amended by Acts 1960, No. 30, § 1, effective Jan. 1, 1961.)”

        “Art 2104. If one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each.
      If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent codebtors and him who has made the payment.”

        “Art. 2324. He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.”

      . With the establishment of comparative negligence, in Louisiana by Act 431 of 1979, Art. 2324 has been changed to provide for apportionment of damages' among in solido joint tort-feasors according to degrees of negligence. However, section 4 of the Act provides it shall not apply to claims arising from events that occurred prior to the effective date of the Act (Aug. 1, 1980).

      . Arts. 2315 and 2091 read as follows:
      “Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
      The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
      The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. A right to recover damages under the provisions of this paragraph is a property right which, on the death of the survivor in whose favor the right of action survived, is inherited by his legal, instituted, or irregular heirs, whether suit has been instituted thereon by the survivor or not.
      As used in this article, the words ‘child’, ‘brother’, ‘sister’, ‘father’, and ‘mother’ in-elude a child, brother, sister, father, and mother, by adoption, respectively. (As amended by Acts 1960, No. 30, § 1, effective Jan. 1, 1961).”
      “Art. 2091. There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.”


author: de la HOUSSAYE, Justice Ad Hoc.

text:
    Adam BADEAUX v. Warren PITRE.
    No. 66121.
    Supreme Court of Louisiana.
    April 7, 1980.
    Leon C. Vial, III, Hahnville, for plaintiff-applicant.
    Norman J. Pitre, Opelousas, for defendant-respondent.
   de la HOUSSAYE, Justice Ad Hoc.

We granted writs upon application of Adam Badeaux, to review an adverse ruling of the Court of Appeal, Fourth Circuit.

Plaintiff Badeaux brought a petitory action in the District Court seeking to establish title to a tract of land in Bayou Gauche, St. Charles Parish, claiming title by continuous, open, notorious and adverse possession for a period in excess of 30 years, against defendant Pitre. The District Court found that plaintiff had made out a good and valid title as to all of the property through 30 years acquisitive prescription. The trial court also found that plaintiff Badeaux had granted to Harry Saucier, Pitre’s ancestor in title, a servitude of use on a portion of the property upon which Saucier had constructed his camp, wharf, and boatshed. This servitude of use was found to have been transferred to Pitre when he purchased these structures from Saucier. Defendant appealed from the adverse ruling.

The Court of Appeal, which ordered the case be re-argued before a 5 judge panel, reversed the District Court, finding no cause of action as to plaintiff, concluding that the judgment appealed from had no basis in law and fact.

The trial transcript reflects that Badeaux had been in possession of the above described property since 1946. This tract is described as:

A CERTAIN PIECE OR PORTION OF GROUND, together with all the buildings and improvements thereon, and all rights, ways, privileges, servitudes and advantages thereunto belonging or in anywise appertaining, situated in Section 10, T. 15 S., R. 20 E., Bayou Gauche, St. Charles Parish, Louisiana, and according to a survey of properties claimed by Adam Ba-deaux and Irvin Bernard, Sr., by R. P. Bernard, Surveyor, dated October 31, 1977, the property claimed by Adam Ba-deaux commences at a point on the south side of Louisiana Highway 306 a distance of 573 feet from the south side bridge abutment on Grand Bayou, thence runs South 9 degrees 39 minutes East for a distance of 165 feet, more or less, to the north shore of Bayou Gauche, thence runs westerly along Bayou Gauche for a distance of 275 feet, more or less, to a point; thence North 9 degrees 39 minutes West a distance of 70 feet, more or less, to Louisiana Highway 306 and thence runs 258 feet, more or less, along the south right of way of said highway to the point of beginning.

Saucier testified that when he sold Pitre the house, wharf, and boatshed in 1972, he had occupied the structures built under Ba-deaux’s authorization for nine years. There were papers drawn up at the Act of Sale of 1972, but none to verify the antecedent verbal agreement between Badeaux and Saucier. Saucier testified that at no time did he pretend to own any of this land. Subsequent to the sale to Pitre in 1972, plaintiff alleges that defendant began to exert an adverse claim by setting stakes to mark boundary lines, and by removing No Trespassing signs placed by Badeaux.

In this petitory action plaintiff claims that defendant is in possession of the property without title, and that defendant refuses to deliver possession of said property to plaintiff Badeaux. In his suit, plaintiff prayed to be recognized as “. true and lawful owner of the above described property, and as such, entitled to the full and undisturbed possession thereof, and ordering said defendant to deliver possession of said property to plaintiff.”

The Court of Appeal based its opinion on a finding that Badeaux’s petition did not disclose a cause of action as a petitory action under the tenets of C.C.P. Article 3651:

The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff’s ownership.

The Court of Appeal then states of its ' own motion that pursuant to C.C.P. Art. • 927 “[a]t best, plaintiff may state a cause of action for a possessory action” under C.C.P. Art. 3655:

“The possessory action is one brought by the possessor of immovable property or of a real right to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.”

Then, in straining to apply this article to these particular facts, the Court concludes a possessory action would not lie, stating;

“Thus the nature of Badeaux’s claim is unclear from his pleadings and is even more so when the evidence is considered.”

We disagree, finding that a petitory action would lie as the proper petition. Young v. Anderson, La.App.1950, 43 So.2d 280. Clampitt v. Davis Bros. Timber Co., Ltd., La.App.1972,266 So.2d 248, writ refused 263 La. 109, 267 So.2d 212; Dupuy et a 1. v. Shannon, La.App.1961, 136 So.2d 111. Badeaux is claiming against another who has taken steps which show his exertion of an adverse claim against the property by exercising adverse possession against Ba-deaux.

Plaintiff’s action to establish title is proper since defendant is found to be in possession of the land, this affecting only the burden of proof imposed upon Badeaux. (See La. C.C.P. Article 3653). We find that plaintiff has met that burden:

“Although it be true that the plaintiff in a petitory action, must succeed on the strength of his own title, and not on the weakness of his adversary’s yet, when the latter has no title at all, he cannot, as a trespasser, take advantage of any defect in the former’s muniments of title. In such cases, a title apparently good, is all that is required to maintain the petitory action.” Zeringue v. Williams 15 La.Ann. 76.

In further support of plaintiff’s properly having filed a petitory action, we note that plaintiff concludes his petition with a prayer that he be recognized as rightful owner of the property. In his dissent, Judge Bou-tall underscores this course of action to be consistent with a petitory action, but not with a possessory one. Vermillion Parish School Bd. v. Muller, La.App.1957, 92 So.2d 77; Peck v. Bemiss, 1855, 10 La.Ann. 160; Reine v. Frederick, La.App.1955, 79 So.2d 190; Montgomery v. Breaux, 297 So.2d 185 (La.1974); Garrett v. Ernest, La.App., 369 So.2d 713.

In proceeding to clarify plaintiff’s rights, and the effect of defendant’s possession, we note that a more accurate description of defendant’s quality of possession than that outlined by the Court of Appeal would be found in La.C.Code 3490.

“Precarious possession
The circumstance of having been in possession by the permission or through the indulgence of another person, gives neither legal possession nor the right of prescribing.
Thus, those who possess precariously, that is, by having prayed the master to let them have the possession, do not deprive him thereof, but, possessing by his consent, they possess for him.”

Plaintiff has properly established 30 yrs. acquisitive prescription by open and corporeal possession of the tract upon which he had lived since 1942, and that Pitre was well aware that he was purchasing the structures only, and not any real property. In his dissent, Judge Boutall states:

“The dealings between these parties convince us that Badeaux had no intention of renouncing his possession of the property and his right of possession, as demonstrated by the conditional permission to build and occupy that he gave ... I conclude therefore that the possession of Badeaux continued through the possession of Saucier, and in 1972, Badeaux had acquired the necessary 30 yr. period of possession for acquisition of ownership of the property.”

Thus having established that Ba-deaux laid claim to the land as owner, and not as possessor, we find that a petitory action did lie as the proper cause of action for plaintiff. Inasmuch as we have found that Pitre held by precarious possession, his presence on the land did not disturb the running of the 30 yrs. acquisitive prescription as to the whole tract claimed by Ba-deaux.

We next focus upon the mention at trial of a letter from the Department of Natural Resources which possibly indicated that title to the tract claimed by Badeaux rested in the State. The trial transcript indicates that both plaintiff’s as well as defendant’s counsel make this admission. The Louisiana Constitution of 1974, Art. 9, Section 4(B) provides:

Land and mineral interests of the state, of a school board, or of a levee district shall not be lost by prescription.

The State was not made a party to this proceeding, nor was the letter allowed to expand the pleadings. Therefore, we find it unnecessary to pass upon the validity of the State’s claim, and find it only necessary to underscore that the State would be unaffected by any adjudication between these parties.

For the foregoing reasons, the decision of the Court of Appeal is reversed, and the decision of the Trial Court is reinstated.

REVERSED.


author: PER CURIAM.

text:
    STATE In the Interest of Roger JOHNSON.
    No. 66182.
    Supreme Court of Louisiana.
    April 7, 1980.
    George Mouledoux, New Orleans, for respondent.
    Harry F. Connick, Dist. Atty., Ronald D. Bodenheimer, Asst. Dist. Atty., for relator.
   PER CURIAM.

By petition filed in the Orleans Parish Juvenile Court on March 22, 1979, sixteen year old Roger Johnson was charged with armed robbery, a violation of R.S. 14:64. Pursuant to the provisions of R.S. 13:1571.-1(D) the state, on July 27, 1979, filed a motion to transfer proceedings in this matter to the Orleans Parish Criminal District Court. A hearing on the state petition was held on September 12, 1979, following which the trial court denied the state’s motion. The state now assigns this ruling as error and appears in this Court by virtue of a grant of supervisory writs. La.Const. Art. 5, § 5(A).

In denying the state’s transfer request, the trial court foúnd that the state had in fact sufficiently established the prerequisites to transfer stated in R.S. 13:1571.1:

(1) Roger Johnson had attained the age of fifteen at the time of the alleged conduct.

(2) All parties concerned, including the juvenile, his mother, his grandmother, and his attorney had been given notice in writing of the time, place, and purpose of the hearing at least ten days before the hearing.

(3) There was probable cause to believe that Roger Johnson had committed the armed robbery.

The trial court noted that the 1978 amendment (Act 460 of 1978) to Louisiana’s juvenile transfer statute eliminated the requirement that the state demonstrate the juvenile’s non-amenability to treatment through facilities available to the juvenile court as a prerequisite to transfer. Finding that deletion of the non-amenability clause (which had been in the juvenile transfer statute prior to amendment by Act 460 of 1978, at R.S. 13:1571.1A(4)) left the transfer statute in Louisiana without standards, the trial judge applied the criteria for juvenile transfer stated in the opinion of the United States Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). In that connection he found that the state had not shown the existence and/or failure of efforts to rehabilitate this juvenile. Although determination of the juvenile’s non-amenability to rehabilitation was not a statutory prerequisite to transfer at the time the trial judge ruled, the court felt that absence of attempt to rehabilitate the juvenile was an important factor to consider in making his decision. The court found that the state had not met its burden of proof, primarily because of this absence of rehabilitative efforts.

We granted this writ because the trial judge’s use of the Kent guidelines obviously went beyond the three statutory prerequisites to transfer of R.S. 13:1571.1 as amended by Act 460 of 1978. However, after granting the writ we have held in State v. Hunter, 382 So.2d 1003 (La.1980), that Act No. 460 of 1978 which amended and reenacted R.S. 13:1571.1 is unconstitutional. In Hunter, supra, we further held that passage of this unconstitutional act (Act 460 of 1978) did not effect repeal of the former statute. Therefore the juvenile transfer proceedings in this case (as those in Hunter) are governed by the provisions of R.S. 13:1571.1 as it existed prior to the passage of Act No. 460 of 1978.

Earlier, in State v. Everfield, 342 So.2d 648 (La.1977) we held that Louisiana’s juvenile transfer statute does not contravene the due process guidelines contained in Kent and in some instances goes beyond those requirements in protecting juvenile’s rights. We stated in Everfield, 342 So.2d at 655, 656, that in considering whether a child is amenable to treatment or rehabilitation, and thus whether the case should be transferred to the Criminal Courts, a court should review the following factors:

“age, maturity and sophistication of the juvenile; the nature and seriousness of the offense charged; prior acts of delinquency, if any, and their nature and seriousness; past efforts at rehabilitation and treatment and the juvenile’s response thereto; whether the juvenile’s behavior might be related to physical or mental problems; and the techniques, programs, personnel and facilities available to the juvenile court system which might be competent to deal with the problems of the particular juvenile whose transfer is being considered.”

The trial court’s consideration of guidelines contained in Kent and Everfield complied with R.S. 13:1571.1 (prior to the 1978 amendment) and ordinarily his ruling would not be disturbed absent a finding that the trial judge abused his discretion. However, in this case prior to the trial judge’s ruling, the state was prevented from presenting evidence of defendant’s non-amenability to treatment or rehabilitation by R.S. 13:1571.4A which stated in pertinent part:

“Only such evidence may be introduced at a transfer hearing which pertains to the transfer criteria stated in R.S. 13:1571.1 .” At the time of trial Act 460 of 1978 amending and reenacting R.S. 13:1571.1 (which had not yet been declared unconstitutional and therefore was presumptively valid, See Everfield, supra) stated that only three criteria were to be considered in a transfer proceeding; the age of the juvenile, proper notice of the transfer hearing, and that probable cause exists that a juvenile committed the enumerated crime charged.

Now, however, in light of our decision in Hunter, supra, the former R.S. 13:1571.1 is the applicable statute and it is proper for the state to be given the opportunity to present evidence showing that efforts were made to rehabilitate this juvenile and that those efforts were unsuccessful because the juvenile is not amenable to such treatment. Accordingly, we remand this case to allow the state to attempt to introduce evidence of defendant’s non-amenability to treatment or rehabilitation.

Decree

Judgment of the trial court is set aside and the case is remanded for further proceedings in accordance with the views expressed in this opinion.

JUDGMENT SET ASIDE; CASE REMANDED.

       Chief Judge PAUL B. LANDRY, retired, participated in this decision as an Associate Justice Ad Hoc.

      . The juvenile transfer guidelines contained in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) are as follows:
      “1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.
      “2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.
      “3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.
      “4. The prosecutive merit of the complaint, i. e., whether there is evidence to return an indictment (to be determined by consultation with the United States Attorney).
      “5. The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults who will be charged with a crime in the U.S. District Court for the District of Columbia.
      “6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.
      “7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.
      “8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.”


text:
    STATE of Louisiana In the Interest of Larry Michael MOORE.
    No. 66197.
    Supreme Court of Louisiana.
    April 7, 1980.

      Leon M. Pliner, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

Larry Michael Moore, age sixteen, was charged in the juvenile court with three counts of aggravated kidnapping in violation of La.R.S. 14:44 and one count of armed robbery in violation of La.R.S. 14:64. The offenses were alleged to have been committed on July 17, 1979. Pursuant to La.R.S. 13:1571.1, the state sought to transfer Moore to the district (adult) court.

After a hearing, the juvenile court judge ordered the case transferred to the district court. Upon Moore’s application to this court, we granted a writ of certiorari under our general supervisory jurisdiction to consider the contention that the 1978 amendment to the juvenile transfer act rendered the transfer procedure unconstitutional.

In State of Louisiana In the Interest of Erin A. Hunter, No. 65,512 (La., March 3, 1980), this court found Act No. 460 of 1978, which amended and reenacted La.R.S. 13:1571.1, unconstitutional. In Hunter, we further held that passage of this unconstitutional act (Act No. 460 of 1978) did not effect repeal of the former statute. Therefore, the juvenile transfer proceedings in this case (as those in Hunter) are governed by the provisions of La.R.S. 13:1571.1 as it existed prior to the passage of Act No. 460 of 1978. Hence, the juvenile court’s decision transferring this case to the district court must be reversed in view of Hunter and the case remanded to the juvenile court for a new transfer hearing under the provisions of La.R.S. 13:1571.1 as it existed prior to the passage of Act No. 460 of 1978.

DECREE

For the reasons assigned, the order of the juvenile court is reversed and the case is remanded to the juvenile court for further proceedings in accordance with law.

       Chief Judge PAUL B. LANDRY', retired, participated in this decision as an Associate Justice Ad Hoc.

      . La. Acts 1978, No. 460, § 1.

      . 377 So.2d 1037 (La. 1979).


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Sharon M. TRULL.
    No. 66222.
    Supreme Court of Louisiana.
    April 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
    Michael K. Dees, McHale, Bufkin & Dees, Lake Charles, for defendant-relator.
   BLANCHE, Justice.

Defendant was convicted of violation of R.S. 14:91, unlawful sales to minors. She was sentenced to serve twenty days in jail and to pay a fine of $100 plus costs. In the event of nonpayment of the fine, she was to serve an additional thirty days in jail. The twenty-day sentence was suspended and defendant was placed on unsupervised probation for a period of six months. We granted writs.

On the evening of June 1, 1979, a male juvenile seventeen years of age, the son of a Lake Charles Police officer, was working with the Lake Charles Police, and entered the convenience store in which defendant was employed as cashier. The juvenile, who was described as being approximately 6 ft. 1 inch in height, weighing 175 pounds and wearing a senior class ring, was driven to the store by two police officers for the purpose of making a purchase of beer. According to plan, he entered the store, picked up a six-pack of beer, and proceeded to the check-out counter. Defendant then and there accepted payment for the beer without making any attempt to ascertain his age or require him to show any identification. With beer in hand, he left the store and reported his successful purchase to the officers. Later that evening, the police returned to the store and arrested Miss Trull for selling alcoholic beverages to a minor. This prosecution followed.

Defendant argues that the state did not prove an essential element of the offense, i. e. that the defendant who made the sale was over the age of seventeen. The statute, R.S. 14:91, which defendant is charged of having violated, reads as follows:

“Unlawful sales to minors is the selling, or otherwise delivering for value by anyone over the age oí seventeen of any alcoholic beverage either of high or low alcoholic content, or any firearm or other instrumentality customarily used as a dangerous weapon, to any person under the age of eighteen. Lack of knowledge of the minor’s age shall not be a defense.
“Whoever commits the crime of unlawful sales to minors shall be fined not more than three hundred dollars, or imprisoned for not more than six months, or both.” (emphasis ours)

Thus, the words “selling ... by anyone over the age of seventeen” would require the state to offer proof of the defendant’s age as an essential element of the offense.

On this issue, the state produced only one witness, Captain E. P. Smith, the booking officer who prepared the booking sheet. Smith testified that during the booking process, he learned that defendant’s age was nineteen, and he made an entry to that effect on the arrest report.

Initially, the prosecutor inquired of Smith what the arrest report reflected regarding defendants age. When the defense attorney objected that the report probably was based upon defendant’s admission, of which no notice was received , the prosecutor elicited from Smith that he generally copied historical data from an arrestee’s “driver’s license or some other document.” On the basis of that declaration, the defense objected to the introduction of hearsay. Since the defense objection had related to Smith’s reporting defendant’s age as reflected in the arrest record, the prosecutor sought to circumvent the problem by introducing the arrest record itself. On defense counsel’s objection that the state had not established the source of the information in the record, it too was excluded. The prosecutor then asked Smith whether he had “determined that defendant was over the age of eighteen”. Smith’s response that he had done so was followed by a defense objection which was sustained on the same ground. Trying a more devious route, the prosecutor asked Smith to explain the differences between booking procedures for juveniles and those for adults, and to describe by what procedures defendant was booked. Counsel’s objection to this line of inquiry led to a conference in chambers. This was not recorded.

When they returned to the courtroom, defense counsel restated for the record his objection to Smith’s relating information whose source he could not recall. The objection was sustained. The prosecutor then attempted to establish how' Smith had learned defendant’s age. Smith replied that he believed he had taken it from defendant’s driver’s license. The prosecutor then asked: “Captain Smith, can you testify now, of your own knowledge, with any information at all as to the age of the defendant?” Smith answered that he was “convinced” defendant was nineteen. Defense counsel argued that the answer, unresponsive to the yes-or-no question, had undercut his opportunity to block the introduction of the hearsay response. After a protracted discussion, the trial judge, plainly exasperated with the entire issue, ruled that if defense counsel could demonstrate on cross-examination that there was an inadequate foundation for Smith’s testimony, it would be stricken from the record. Further inquiry established that Smith did not recall how he had ascertained defendant’s age. Although it was his policy to obtain a driver’s license or some other document to verify this fact, he did not remember what he had relied upon on this occasion. In the end, the trial court overruled the defense objection to Smith’s testimony.

Clearly, Smith’s testimony, which is based upon a source beyond his personal knowledge, is hearsay. Because the source of his knowledge is unknown, it is difficult, if not impossible, to fit his testimony within any of the exceptions to the rule against hearsay. In all conceivable exceptions to the hearsay rule, the trustworthiness of the evidence is- the primary criterion for admissibility. In this case, trustworthiness cannot be assessed because the source of the information is not known.

Although the testimony as to defendant’s age slipped past defense counsel, he made every effort to prevent the testimony before it was given and properly objected upon it being given. He cannot be deemed to have waived any objection thereto.

The trial court was in error in accepting Captain Smith’s testimony over defense objections. The testimony was clearly inadmissible as hearsay and should have been excluded. Absent this testimony, the state has failed to prove an essential element of the offense, i. e., the age of the one accused of selling the alcoholic beverages to the minor. We consider the evidence not to have been presented in this case.

For the above reasons, we reverse the conviction and sentence and remand the case to the district court with instructions to dismiss the proceeding against defendant.

REVERSED AND REMANDED.

       Judge EDWARD A. DE LA HOUSSAYE, HI. participated in this decision as Associate Justice Ad Hoc.

      . The defense had filed a request under C.Cr.P. art. 716(C) seeking to determine whether the state intended to use any statements by the defendant which were inculpatory in nature. The state had replied that it had no admissions from the defendant and so would be precluded from using any at trial.

      . Had Smith learned defendant’s age from her, it could have been introduced as an admission, presuming that the state had complied with its obligation under C.Cr.P. art. 716. Had he offered defendant’s driver’s license, birth certificate, or similar document into evidence, it might have been admissible as a public record if the proper foundation and identification were made. But Smith could not relate what a missing document stated as to defendant’s age, nor could he even say with certainty that he had seen such a document. His uncertainty as to the source of his information clearly establishes the unreliability of his evidence.


text:
    STATE of Louisiana v. William COOPER a/k/a William Gary.
    No. 66404.
    Supreme Court of Louisiana.
    April 7, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. Gregory Ar-nette, Jr., Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Research and Appeals, for plaintiff-appellant.
    Donald R. Jory, Jennings, Vernon Jean-sonne, Lake Arthur, for defendant-appellee.
   WATSON, Justice.

The issue is whether the trial court was correct in quashing an indictment on the ground that Act 74 of 1979 is unconstitutional because it contains more than one object.

William Cooper was indicted for the first degree murder of Gladys Burchenal in violation of LSA-R.S. 14:30, as amended by Act 74 of 1979. The Act became law on June 29,1979, and the crime was committed on July 18, 1979. Defendant contended in the motion to quash that the Act violates Article 3, Section 15(A), of the Louisiana Constitution of 1974, which provides:

“Section 15. (A) Introduction; Title; Single Object; Public Meetings. The legislature shall enact no law except by a bill introduced during that session, and propose no constitutional amendment except by a joint resolution introduced during that session, which shall be processed as a bill.' Every bill, except the general appropriation bill and bills for the enactment, rearrangement, codification, or revision of a system of laws, shall be confined to one object. Every bill shall contain a brief title indicative of its object. Action on any matter intended to have the effect of law shall be taken only in open, public meeting.”

Defendant successfully contended that Act 74 of 1979 is unconstitutional because it provides for two different purposes or objects, and the trial court sustained defendant’s motion to quash. The State has appealed.

Defendant argues that because the Act contains amendments to both substantive and procedural law and because the aggravating circumstances listed in the Act are to be considered by the jury in sentencing in all capital cases (not only in first degree murder cases) the Act contains more than one object and is invalid under Article 3, Section 15 of the Constitution.

In State v. Dooley, 261 La. 295, 259 So.2d 329 (1972), the purpose of the single object requirement of the 1921 Constitution (Article 3, Section 16) which is very similar to Article 3, Section 15 of the 1974 Constitution, was stated to be the restriction of legislative acts. A legislator should not have to consider the validity of two unrelated objects in deciding how to vote on a bill. One act, therefore, cannot include incongruous and unrelated matters. See A & M Pest Control Services, Inc. v. LaBurre, 247 La. 315, 170 So.2d 855 (1965), and State v. Hertzog, 243 La. 647, 146 So.2d 149 (1962).

The Constitution does not prohibit the legislature from dealing with several branches of one subject or from providing in one act the necessary means for carrying out its object. State v. Craig, 158 La. 866, 104 So. 744 (1925). As the Court stated in Wall v. Close, 203 La. 345, 14 So.2d 19 (1943):

“ ‘If all the parts of a Statute have a natural connection and reasonably relate, directly or indirectly, to one general and legitimate subject of legislation, the statute is not considered as being open to the objection of plurality, no matter how extensively it deals with the details, looking to the accomplishment of the main legislative purpose.’ ”

14 So.2d 25.

Here, the definitions of first and second degree murder and the list of aggravating circumstances to be applied in capital cases are not unrelated and incongruous matters. First degree murder is a capital crime. In an attempt to enact a constitutionally acceptable statutory scheme for imposition of the death penalty, the Louisiana legislature modeled our murder statute after those approved in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Accordingly, under Louisiana law today, the trial in a first degree murder case is composed of two phases, the determination of guilt or innocence and the sentencing hearing. If defendant is found guilty , of first degree murder during the initial stage of the proceeding, the jury must then consider evidence relative to aggravating and mitigating circumstances before sentencing. Since the legislature’s adoption of this bifurcated procedure in 1976, the circumstances contained in LSA-C.Cr.P. art. 905.4 have been inextricably linked to the substantive murder provisions contained in LSA-R.S. 14:30. Therefore, it was not unreasonable for the legislature to consider the aggravating and mitigating circumstances to be applied in capital cases in the same bill which defined the capital offense of first degree murder.

It is true that the aggravating and mitigating circumstances contained in LSA-C. Cr.P. art. 905.4 are to be considered in all capital cases (not only in first degree murder cases) but this is made clear in both the title and body of the Act. In light of the per curiam opinion of the United States Supreme Court in Eberheart v. Georgia, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (1977), invalidating the death penalty for aggravated kidnapping (See State v. Polk, 376 So.2d 151 (La.1979), the only capital offenses in existence in Louisiana today are first degree murder (LSA-R.S. 14:30) and treason (LSA-R.S. 14:113). Therefore, the aggravating circumstances enunciated in LSA-C.Cr.P. art. 905.4 ostensibly apply to both first degree murder and treason. However, the primary legislative intent was obviously to provide sentencing considerations for first degree murder cases. Accordingly, the amendment to LSA-C.Cr.P. art. 905.4 is not so unrelated to the amendment of the first degree murder statute as to render their joinder in one act unconstitutional.

Therefore, the trial judge erred in ruling that Act 74 of 1979 was unconstitutional and in ruling that defendant would have to be prosecuted under the pre-amendment murder statute. Accordingly, the judgment of the trial court quashing the indictment is reversed and the case is remanded for further proceedings consistent with the opinions expressed herein.

REVERSED AND REMANDED.

       Honorable Edward A. de la Houssaye, III, participated in this decision as Associate Justice ad hoc.

      . Act 74 of 1979:
      AN ACT
      To amend and reenact Sections 30 and 30.1 of Title 14 of the Louisiana Revised Statutes of 1950 and to amend and reenact Article 905.4 of the Louisiana Code of Criminal Procedure, relative to homicide, to provide for the definitions of the crimes of first and second degree murder; to provide a list of aggravating circumstances for the sentencing consideration of a jury in capital cases, and otherwise to provide with respect thereto.
      Be it enacted by the Legislature of Louisiana: Section 1. Sections 30 and 30.1 of Title 14 of the Louisiana Revised Statutes of 1950 are hereby amended and reenacted to read as follows:
      § 30. First degree murder First degree murder is the killing of a human being:
      (1) when the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery;
      (2) when the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties;
      (3) when the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or
      (4) when the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing.
      For the purposes of Paragraph (2) herein, the term peace officer is defined to include any constable, marshal, deputy marshal, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, attorney general, assistant attorney general, attorney general’s investigator, district attorney, assistant district attorney, or district attorney’s investigator.
      Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury.
      § 30.1. Second degree murder Second degree murder is the killing of a human being:
      (1) when the offender has a specific intent to kill or to inflict great bodily harm; or
      (2) when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
      Section 2. Article 905.4 of the Code of Criminal Procedure is hereby amended and reenacted to read as follows:
      Art. 905.4. Aggravating cricumstances [sic]
      The following shall be considered aggravating circumstances:
      (a) the offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, aggravated arson, aggravated escape, armed robbery, or simple robbery;
      (b) the victim was a fireman or peace officer engaged in his lawful duties;
      (c) the offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping or has a significant prior history of criminal activity;
      (d) the offender knowingly created a risk of death or great bodily harm to more than one person;
      (e) the offender offered or has been offered or has given or received anything of value for the commission of the offense;
      (f) the offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony;
      (g) the offense was committed in an especially heinous, atrocious, or cruel manner; or
      (h) the victim was a witness in a prosecution against the defendant, gave material assistance to the state in any investigation or prosectuion [sic] of the defendant, or was an eye witness to a crime alleged to have been committed by the defendant or possessed other material evidence against the defendant.
      (i) the victim was a correctional officer or any employee of the Louisiana Department of Corrections who, in the normal course of his employment was required to come in close contact with persons incarcerated in a state prison facility, and the victim was engaged in his lawful duties at the time of the offense.
      For the purposes of Subparagraph (b) herein, the term peace officer is defined to include any constable, marshal, deputy marshal, sheriff, deputy sheriff, local or state policeman, game warden, federal law enforcement officer, jail or prison guard, parole officer, probation officer, judge, attorney general, assistant attorney general, attorney general’s investigator, district attorney, assistant district attorney, or district attorney’s investigator.
      Section 3. This Act shall become effective upon signature by the governor or, if not signed by the governor, upon expiration of the time for’ bills to become law without signature by the governor, as provided in Article III, Section 18 of the Louisiana Constitution of 1974.

        Section 4. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared severa-ble.
      Section 5. All laws or parts of laws in conflict herewith are hereby repealed.


text:
    STATE of Louisiana v. Glenn DAUZAT.
    No. 67002.
    Supreme Court of Louisiana.
    April 16, 1980.
    Donald R. Wilson, Tucker L. Melancon, Marksville, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Eddie Knoll, Dist. Atty., Cliff Laborde, Asst. Dist. Atty., for plaintiff-respondent.
   On Writ of Certiorari to 12th Judicial District Court, Parish of Avoyelles; James N. Lee, Judge.

Writ dismissed as improvidently granted, La., 380 So.2d 1376. Relator has not made a showing of either mathematical disparity in representation nor suspect procedures sufficient to establish a prima facie case of discrimination against blacks in the selection of the Avoyelles Parish Grand Jury.


author: PONDER, Judge.

text:
    Manuel ZITO v. Royal TURNER et al. Manuel ZITO v. Tommy HAYDEL et al.
    Nos. 12885, 12886.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Floyd J. Falcon, Jr., James J. Zito, Baton Rouge, of counsel, for plaintiff-appellant, Manuel Zito.
    Emile C. Rolfs, III, Baton Rouge, of counsel, for defendants-appellees, David T. McLemone, Affiliated FM Ins. Co. & Tommy Haydel.
    John I. Hulse, IY, New Orleans, of counsel, for defendants-appellees, Royal Turner, Lester Haydel, American Manufacturers Mut. Ins. Co. & Tommy Haydel.
    Henry D. Salassi, Jr., Baton Rouge, of counsel, for intervenor-appellant, American Manufacturers Mut. Ins. Co.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment denying recovery in a tort suit against executive officers.

The issues are:, breach of duty by the executive officers and the contributory negligence of the plaintiff.

We affirm.

Plaintiff while transporting two scaffold boards stood in the back of the truck holding the boards while another man drove the pickup truck. The boards dragged on the ground and plaintiff fell from the truck and suffered injuries.

The trial court found that the driver’s actions did not cause the harm to plaintiff; that another defendant was not an executive officer; that a third defendant was an executive officer who had breached a duty to plaintiff to warn against unsafe practices, but that plaintiff was guilty of contributory negligence.

The trial court in detailed written reasons for judgment analyzed the facts of the case and correctly applied the law. We find no manifest error therein.

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

AFFIRMED.


author: ELLIS, Judge:

text:
    Nathan E. LEATHERS v. MOBILE HOME BROKERS, INC., et al.
    No. 12998.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Keith M. Whipple, Whipple, Bouquet & Freeman, Houma, for plaintiff.
    Dale H. Hayes, Leonard & Hayes, Morgan City, for defendants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is an action in quanti minoris, in which plaintiff Nathan E. Leathers seeks a reduction in the purchase price of a mobile home, manufactured by Clinton Manufacturing Corp., and purchased by plaintiff from Mobile Home Brokers, Inc., both of which were made defendants herein. Service was not made on Clinton, and the case was tried on its merits with Brokers only. From a judgment in favor of plaintiff, awarding $3,212.50 plus $1,070.83 as attorneys’ fees, Brokers has appealed.

On May 12, 1972, plaintiff ordered a mobile home from Brokers, which was to be manufactured to plaintiff’s specifications by Clinton. The total cash price, including tax and delivery, was $12,387.78. According to plaintiff the unit was to be complete except for the cabinet work, which was to be done by plaintiff. This work included the installation of the kitchen stove and the bathroom lavatories.

Defendant’s version of the contract was different. According to the testimony of its witnesses, plaintiff purchased a “stripped” unit, with no cabinets and all plumbing stubbed off at the floor. Plaintiff was to build his own cabinets, install the plumbing, and install the heating and air conditioning unit.

The trial judge found that the contract was as testified to by plaintiff, and we accept his finding in that respect. His rulings on the individual items of damages are necessarily related to his finding relative to the overall contract, but must be discussed individually.

An award of $327.00 for installation of the air conditioning and heating unit was made. Brokers claims it was not supposed to make the installation. The record and the holding of the trial judge are to the contrary. We find no error.

Plaintiff testified that defendant failed to deliver $251.00 worth of items, which plaintiff was forced to purchase himself. Defendant claims no contractual obligation to deliver these items. We find no manifest error in the finding of the trial judge to the contrary.

The same is true of the cost of an exhaust fan over the stove. The trial judge found that it should have been included in the contract.

Most of the defects of which plaintiff complained were remedied by him using his own labor. Charles Voclain, an expert in mobile home repair, testified as to what he would charge to remedy the said defects.

Plaintiff testified that there were no wires connecting eight of the electric outlets in the walls of the unit, and that he installed the necessary wiring. Mr. Voclain testified that he would charge $425.00 to do the work.

Mr. Voclain testified that it would cost $375.00 to connect the electric service line to the trailer, and $290.00 to connect the electric service line to the air conditioning unit. Defendant’s witnesses testified that they did not as a rule connect the service lines to all-electric units, such as plaintiff’s, and had no contractual obligation to do so in this case. We find no manifest error in the trial judge’s finding to the contrary.

The same is true as to the forced air vent over the stove, which Mr. Voclain testified would cost $150.00.

Two items concerning which Mr. Vo-clain testified, and which the judge awarded, are not substantiated by the record. One of these is a charge of $510.00 for rebuilding six shelves. Plaintiff did not testify that this was necessitated by any defect in the unit, or that it was done at all. The other is a charge of $35.00 for a door step. Plaintiff did not testify that the step was not delivered, and defendant’s witness testified that the door step was in the unit when it was delivered.

No complaint was made as to the other items testified to by Mr. Voclain. The trial judge allowed $120.00 additional to apply “Kool-Seal” to the roof to stop leaks. This item should not have been allowed, since Mr. Voclain included $90.00 for the same thing in his estimate. The total of all items' which should have been awarded by the trial judge comes to $2,547.50.

Generally speaking, the proper measure of damages in an action in quanti minoris is the difference between the value of the thing sold in its defective state and its value as warranted. Lemonier v. Coco, 237 La. 760, 112 So.2d 436 (1959). Various factors should be considered in arriving at the reduction in price to be made, including expert testimony as to the value of the thing with its defects; cost to restore the thing to its warranted condition; and actual damage caused by the defects. See Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir., 1975); Williamson v. Strange, 323 So.2d 875 (La.App. 2nd Cir., 1975); Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App. 4th Cir., 1974).

In this case, we think the trial judge was correct in finding the cost to restore the unit to warranted condition to be a proper measure of damages.

We recognize that some of the so-called latent defects complained of herein were, in fact, readily discoverable, and that plaintiff’s cause of action for those defects would be in breach of contract rather than in redhibition. However, since the measure of damages in each case would be the same, we have made no attempt to differentiate among them.

Defendant also alleges that it should not have to pay attorneys’ fees. Article 2545 of the Civil Code provides:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

The courts have interpreted the foregoing article to mean that a seller who knows or should know of a defect, and who failed to declare it to the buyer, is liable for attorneys’ fees. Wade v. Mclnnis-Peterson Chevrolet, Inc., supra. Defendant argues that it had no knowledge of the defects complained of. This may be true as to some of the items, but the major items of complaint should have been done under the original contract, to which defendant was a party, and were not properly carried out. Defendant is therefore charged with knowledge thereof and is liable for attorneys’ fees. However, we reduce the amount thereof to one-third of the reduction in price, or $849.16.

The judgment appealed from is therefore amended so as to reduce the amount thereof to $2,547.50 and the attorneys’ fees to $849.16, and, as amended, it is affirmed. Costs of this appeal shall be equally shared by plaintiff and defendant.

AMENDED AND AFFIRMED.