author: TATE, Justice. CALOGERO, Justice, DENNIS, Justice, DENNIS, Justice.

text:
    SLAGLE-JOHNSON LUMBER COMPANY, INC., Plaintiff-Appellant-Relator, v. LANDIS CONSTRUCTION COMPANY, INC. and Seaboard Surety Company, Defendants-Appellees-Respondents.
    No. 63701.
    Supreme Court of Louisiana.
    May 21, 1979.
    Dissenting Opinion June 27, 1979.
    On Rehearing Jan. 28, 1980.
    R. L. Davis, Jr., Theus, Grisham, Davis & Leigh, Monroe, for plaintiff-appellant-relator.
    Wood T. Sparks, Thompson, Sparks, Cudd & Dean, Monroe, for defendants-appellees-respondents.
   TATE, Justice.

The plaintiff lumber company seeks recovery from a general contractor (Landis) and its surety (Seaboard) for some twelve thousand dollars of lumber and nails used to construct wooden forms for pouring of concrete. The forms were used in the construction of a concrete football stadium for a state university, pursuant to a public contract between the state and the general contractor. The materials had been sold to a defaulting subcontractor.

The plaintiff’s suit was dismissed. 366 So.2d 206 (La.App. 2d Cir. 1978). The trial and intermediate courts held that the statutory lien granted to materialman and suppliers for construction of public works, La. R.S. 38:2241, 2242, did not extend to materials such as these, which were only indirectly used in construction, even though they were to an appreciable extent consumed during the performance of the construction contract.

In so holding, the previous courts followed our decision in Hayes Lumber Co. v. McConnell, 176 La. 431, 146 So. 14 (1932). There, we denied a statutory lien under facts similar to the present for lumber and nails used to make forms for concrete bridge piers constructed in performance of a public highway contract.

I.

We granted certiorari, 367 So.2d 379 (1979), to re-examine our holding in Hayes that materials entirely consumed in the performance of the contract, if not physically incorporated into the work, were not within the lien protection accorded those who do work, perform labor, or furnish material and supplies for the construction, alteration, or repair of public works. La.R.S. 38:2241-48, originally enacted as Act 224 of 1918 (sometimes referred to as the Public Works Act).

We entertained doubt as to the viability of the Hayes interpretation of so restricted a statutory intent, because of amendments to the original 1918 act which expanded the lien protection to materials or services used in the construction of the work, although not actually physically part of the completed construction. Likewise, we were concerned by the plaintiff’s arguments that a supplier who delivered materials to a job-site, ordinarily protected by a presumption of a statutory lien upon such delivery, Bernard Lumber Company v. Sayre, 230 La. 17, 87 So.2d 713 (1956), might be readily deprived of it upon the contractor’s diversion (or self-serving assertion of such diversion) of the lumber or other materials to a purpose other than of incorporation in the completed structure.

Further, the holding in Hayes is to some extent inconsistent with our earlier holding in Long Bell Lumber v. S. D. Carr Const. Co., 172 La. 182, 133 So. 438 (1931). Therein, we recognized a statutory lien for dynamite, fuses, and caps used in clearing ground in the performance of a highway contract, because these items were necessary to and entirely consumed in the performance of the highway construction contract.

Despite these persuasive considerations to the contrary, however, we decline to overrule Hayes, for reasons more fully stated below.

II.

The facts show:

Landis, the general contractor, had entered into a subcontract with a construction company (Crutcher) for it to construct the first and second level concourse platforms of the stadium and the ramps leading to it. Crutcher purchased the materials for the forms from the plaintiff lumber company (Slagle-Johnson), but defaulted after two months, with the subcontract then being about thirty percent complete. (Crutcher ultimately declared bankruptcy.)

Landis took over Crutcher’s subcontract, using some of the material purchased from Slagle-Johnson, which Crutcher had abandoned at the job-site. At the conclusion of the construction contract, the remaining materials used and re-used for the forms were stacked up and remained at the job-site. The evidence is conflicting whether this remainder is still re-usable, it having been sawed up into particular lengths and having been previously used one or more times.

The materials which were the basis of the lien consisted primarily of timbers or lumber (2 X 4’s, 2 X 6’s, and 4 X 4’s, etc.), ply-form (a special grade of plywood made especially for concrete forms), and nails. According to the record, to the knowledge of both buyer and seller the lumber and nails were purchased for the purpose of constructing the forms; there is no claim that, the seller was misled or ignorant as to the destination of the materials delivered by it to the construction site.

A contractor builds the forms to particular specifications for the concrete forms to be used, and he removes the material when the concrete is set. Some of the form material is damaged or destroyed in removing it; some of it is of such shape or size as to be of little or no further utility; but much of it can be cleaned, oiled, and re-used to build other forms as many as six times. Whether to use or discard a specific item is a judgment decision of the foreman, which is based upon his evaluation of the utility of the material (based upon its shape, size and condition) and the labor cost of cleaning and preserving the material or of transporting it to a new job-site.

In this particular case, much of the material was used and re-used on the job-site until it had become useless as forming material. Some of it survived and allegedly would have been suitable for use on another job, although actually it was abandoned by Landis (as well as Crutcher) at the job-site.

III.

The issue before us is whether the lumber and nails used to construct the forms are lienable “materials or supplies for the construction ” of a public work, La.R.S. 38:2242, within the meaning of the Public Works Act.

Both previous courts, citing Hayes, held that the material was not, within the statutory intention, “material or supplies furnished for the construction” of the stadium. The facts in Hayes are similar to the present case. Lumber and nails were used in the construction of concrete forms and trestles at the construction site. None of the timber or nails were permitted to remain and become a part of the completed structure. All of the nails and 75% of the lumber were materially injured or destroyed in the course of construction.

In Hayes, we held that the material was not lienable, since it “did not enter directly into the improvement, but only in an indirect and secondary manner, and, in no sense, goes to make up the completed improvement,” 146 So. 16, and was, similar to a tool used in construction, neither consumed nor incorporated into the construction. See footnote 3 above, for full quotation.

In so concluding, we distinguished our earlier decision in Long Bell Lumber Company v. S. D. Carr Const. Co., 172 La. 182, 133 So. 438 (1931), wherein dynamite and caps were held to be protected by the lien because they were destined for consumption into the construction. As noted above (footnote 3), Hayes stated that in the Long Bell case “by direct use and consumption of the material on the proposed bed of the roadway a desired condition was brought about, which formed a permanent and necessary part of the roadway. In that sense it may be said the material entered into the completed work.” 146 So. at 16. See footnote 3 above.

IV.

We agree with the plaintiff that the distinction between Hayes and Long Bell is a fragile one. The lumber in plywood forms, to the extent that it is destined to be rendered useless by repeated use on the job-site, seems to “enter into the completed work” to the same extent as the dynamite. It is “consumed” even though it may not be “incorporated into” the final product; arguably, it is used “for the construction of” the work under the literal terms of the statute.

Nevertheless, however fragile the distinction, it seems to have been workable in practice. The construction industry does not seem to have found practical difficulty in accommodating itself to the distinction that lumber and supplies delivered to a job-site and incorporated in the completed construction are lienable, while those delivered and intended for use for purposes merely incidental to the construction are not. See Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545 (1941). To solve particular difficulties, the legislature has amended La.R.S. 38:2241 and 2242 on several occasions, but nevertheless has not seen fit to address the alleged difficulties to suppliers presented by Hayes and by that decision’s alleged discrepancy in rationale with Long Bell.

The Hayes interpretation of the ambiguous statutory language reflects a choice of policy values as to those interests which should be protected by lien. In the absence of clear showing that the former interpretation is unwise or impractical, legislative amendment rather than judicial re-interpretation is appropriate to accomplish any change.

We are re-enforced in this view by the facts of the present case.

Once material is delivered to the job-site by a supplier, the burden is upon those who oppose his lien to prove that the material was not used in the construction. Bernard Lumber Company v. Sayre, 230 La. 17, 87 So.2d 713 (1956); Laney Company v. Airline Apartments, 223 La. 1000, 67 So.2d 570 (1953). If lumber and nails intended for use for forms were lienable if entirely consumed in the work (as the plaintiff contends) under this principle the plaintiff would here be entitled to recover for all lumber or nails delivered to the job-site, even though none of it was incorporated in the final structure and though an appreciable part of it was (according to the record) re-usable: for no records are (or could practicably be) kept as to how much of the lumber is consumed by the forms, and how much is available for re-use on other construction projects.

The Hayes line of lienability, i. e., the incorporation into the completed construction or directed consumption (dynamite) into the work, while difficult to accept as totally logical, has served over the years fairly well to delineate and limit those items covered by the lien. To afford liena-bility to other items indirectly consumed in the construction, such as tools which break or wear out, scaffolding, ropes, and disposable forms, might create uncertainty and afford lienability to incidental costs of construction not intended by the legislature to be protected by the Public Works Act.

As our brothers of the Second Circuit noted above, that law was essentially designed to protect only the contractor and subcontractor and their respective creditors for constructing a work of fixed and permanent value to be surrendered to the owner for whom the work is done. It should not be judicially extended beyond its intent to protect those who furnish materials or supplies not directly used as part of the construction of the work and (except where otherwise authorized by statute) not incorporated therein.

Decree

Accordingly, we affirm the judgment of the court of appeal, which denied the plaintiff lien protection for material used to make forms for concrete, where such forms were incidentally and indirectly used in the construction of the public work and were not physically incorporated into the completed structure.' The plaintiff is to bear all costs of these proceedings.

AFFIRMED.

DENNIS and CALOGERO, JJ., dissent and assign reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent, being of the opinion that H. R. Hayes Lumber Co. v. McConnell, 176 La. 431, 146 So. 14 (1933) is incorrect and should be overruled.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Plaintiff asserts that he is entitled to a statutory lien for the value of lumber and nails used to build concrete forms in connection with a construction under public contract. La.R.S. 38:2241 provides, in pertinent part:

“[The responsible public official] shall require of the contractor a bond, with good, solvent, and sufficient surety in a sum not less than fifty percent of the contract price for the faithful performance of the contract with an additional obligation for the payment by the contractor or subcontractor for all work done, labor performed, or material or supplies furnished for the construction, alteration, or repair of any public works, or for furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works.”

The statute itself does not make actual incorporation into the completed structure a requisite for the attachment of the statutory lien. Although the evidence in the present case is inconclusive as to whether the material supplied by the plaintiff was entirely consumed during the course of construction, it is established that much of the material had become useless and that all of the material was eventually abandoned at the jobsite. Given these facts, I believe that the material was “furnished for construction” of this public work within the meaning of the statute.

The Miller Act, which creates a statutory lien in connection with federal public works projects, contains language similar to the language at issue in the present case. See 40 U.S.C.A. §§ 270a, 270b. In interpreting this statute, federal courts have expressly refused to distinguish between materials incorporated into the completed building and materials which were used up, or essentially used up in the construction process. See, e. g., Continental Casualty Co. v. Allsop Lumber Co., 336 F.2d 445 (8th Cir. 1964), cert. denied 379 U.S. 968, 85 S.Ct. 662, 13 L.Ed.2d 561 (1964); United States v. Endebrock-White Co., Inc., 275 F.2d 57 (4th Cir. 1960); United States v. Fire Association of Philadelphia, 260 F.2d 541 (2d Cir. 1958); Fourt v. United States, 235 F.2d 433 (10th Cir. 1956); Glassell-Taylor Co. v. Magnolia Petroleum Co., 153 F.2d 527 (5th Cir. 1946); United States v. Continental Casualty Co., 224 F.Supp. 857 (D.C.Pa.1964).

The distinction which forms the basis of the majority’s opinion is, in my opinion, both fragile and unworkable. A supplier of materials must now determine, if he can, prior to delivery whether materials requested by a builder are to be entirely incorporated into the finished structure or are to be used in construction and then discarded. If the items are not to be entirely incorporated into the finished structure, then the supplier may find it necessary to demand cash in advance in order to secure payment. When dealing in materials such as nails and lumber, it may be virtually impossible in most circumstances to determine how much of the materials will end up in the finished building.

ON REHEARING

DENNIS, Justice.

We granted a rehearing to consider again the question of • statutory construction presented by this case: whether the Public Works Act, La.R.S. 38:2241 et seq., provides a privilege to persons who furnish materials for the construction of public works, if the materials are consumed in construction but not incorporated in the permanent structure. Upon further consideration and review, we hold that suppliers of such materials are protected by the statute. Accordingly, we reverse the judgments of the trial and intermediate appellate courts, which rejected the materialman’s claims entirely, and remand the case to the district court for further proceedings.

This is a suit under the Public Works Act, La.R.S. 38:2241 et seq., by Slagle-Johnson Lumber Company against Landis Construction Company, the primary contractor for the construction of a football stadium at Northeast Louisiana University, and its surety, Seaboard Surety Company. Slagle-Johnson sold building materials, primarily nails, lumber and plyform, to a Landis subcontractor, N. D. Crutcher Construction Company, and delivered the materials to the stadium construction site. Crutcher failed to pay Slagle-Johnson for the materials and defaulted on its subcontract with Landis. Slagle-Johnson unsuccessfully sought to collect from Crutcher and Landis and filed a lien against the job. Landis took over and completed Crutcher’s part of the contract using the materials furnished by Slagle-Johnson.

Crutcher’s subcontract called for it to build forms for the pouring of concrete to construct stadium ramps and concourses. The trial judge found that none of the materials furnished by Slagle-Johnson had been removed from the site. In his written reasons he stated that “[s]ome of the material is damaged or destroyed in removing it; some of it is of such shape or size as to be of little or no further utility; much of it can be kept and re-used to build most forms . . Apparently, whatever Crutcher left on the job has either been ‘junked’ or is still being used . . .”

Slagle-Johnson filed this suit against Landis and Seaboard Surety Company, the surety on the bond filed by Landis. The trial and intermediate appellate courts rejected Slagle-Johnson’s demands, basing their decisions on H. R. Hayes Lumber Company v. McConnell, 176 La. 431, 146 So. 14 (1933) in which this Court held that materials furnished for the construction of public works must be actually incorporated in the permanent structure to entitle the material supplier to a privilege. We granted writs to consider whether our holding in the Hayes ease should be overruled.

H. R. Hayes Lumber Company v. McConnell, supra, must be overruled because the Public Works Act clearly provides a privilege to all materialmen who furnish materials consumed in the construction of public works, regardless of whether the materials are physically incorporated in the permanent structure. The Public Works Act, in pertinent part, provides:

“[A bond shall be required] for the payment by the contractor or subcontractor for all work done, labor performed, or materials or supplies furnished for the construction, alteration, or repair of any public works . . .” La.R.S. 38:2241.
U * * *
“Any person to whom money is due for doing work, performing labor, or furnishing materials or supplies for the construction, alteration, or repair of any public works, or furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works, . . . may . . . file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done. After the filing and recordation of claims, any payments made by the governing authority without deducting the amount of the claims so served on it shall make the authority liable for the amount of the claims.” La.R.S. 38:2242

The statute draws no distinction between furnished materials which are incorporated in the public works and those which are merely consumed in their construction. Indeed, under the literal wording of the statute a privilege is granted whenever materials are furnished for the construction of a public work, regardless of whether they are consumed or incorporated in the edifice. We conclude, however, that the statute implies a requirement of consumption or incorporation of the materials furnished for construction of the public work before a privilege shall attach.

A different interpretation cannot be justified by the rule that statutes conferring privileges are to be strictly construed. Cf. La.C.C. art. 3185; Lumber Products, Inc. v. Crochet, 244 La. 1060, 156 So.2d 438 (1933). The rule is one of statutory construction requiring courts to adopt the reasonable interpretation which is more favorable to the obligor in case of an ambiguity. Even a strict construction of a statute, however, must be a reasonable one. The words of the Public Works statute cannot be reasonably interpreted as conditioning a mate-rialman’s lien upon the incorporation of each item supplied into the completed structure. By adding the requirement of “actual incorporation” to the statute this Court has not merely adopted a strict construction of the law; it has engaged in unwarranted legislation which altered the statute beyond the scope of its original meaning.

Moreover, the statutory construction adopted by this Court in H. R. Hayes Lumber Company v. McConnell was contrary to the underlying legislative policy. The Public Works Act was adopted to protect those who furnish labor or materials for public works. In accord with this policy, and the clear wording of the statute, it is the opinion of this Court that as against the statutory obligors a materialman may recover under the Act where he has sold and delivered material to the construction site which is effectively consumed or used up in the construction of the public work. Neither the policy nor the language of the legislature suggests an intention to afford protection only to materialmen whose materials end up being physically incorporated in the building.

The mere fact that the legislature has not seen fit to amend the statute following interpretation of it in H. R. Hayes Lumber Company v. McConnell does not require that we perpetuate a construction plainly inconsistent with the-legislative intent. The theory that courts may presume from the legislature’s silence its adoption of a statutory construction is not without limits. Where the judicial interpretation exceeds the bounds of reasonable construction of an ambiguous statute, as in the Hayes case, the legislature’s failure to amend the statute does not warrant perpetuation of the judicial error.

Since the trial and intermediate courts did not reach the problem of determining how much of the materials furnished by Slagle-Johnson was effectively consumed or used up in the course of constructing the public football stadium, it will be necessary that the ease be remanded for further factual findings. Our review of the record indicates that it may be necessary for the trial judge to take additional evidence on the issue. Accordingly, the judgments of the district court and court of appeal are vacated and the case is remanded to the district court for further proceedings consistent with our opinion herein, including, within the trial judge’s discretion, the taking of additional evidence.

REVERSED AND REMANDED.

WATSON, J., concurs in the result.

MARCUS, J., dissents.

      . The general contractor and its surety are nevertheless liable to the subcontractor’s suppliers for materials used (within the meaning of the Public Works Act) in the construction of a public work. La.R.S. 38:2241 (1975); Thurman v. Star Electric Supply, Inc., 307 So.2d 283 (La.1975).

      . See amendments incorporating the lien protection accorded by present La.R.S. 38:2242 to: materials or supplies for use in machines used in connection with such contracts, Act 271 of 1926; claims for services of architects and engineers, Act 537 of 1966; transportation costs for delivery of materials, Act 344 of 1975.

      . In rejecting (over the dissent of one justice) the argument that the lumber and nails for the concrete forms in Hayes were as effectively consumed in the performance of the public contract as was the dynamite in Long Bell, we stated in Hayes, 146 So. 16:
      “The [Long Bell] case was one where, by the direct use and consumption of the material on the proposed bed of the roadway, a desired condition was brought about, which formed a permanent and necessary part of the roadway. In that sense it may be said the material entered into the completed work. On the other hand, the present case is one in which the lumber and the nails were not used directly on the work, but indirectly on it, once removed, as it were, from the highway construction, much, though not quite so far, as was the saw that sawed the lumber. In this view, there is a clear distinction between this case and the Long Bell Lumber Co. case — a distinction that it is necessary to observe, otherwise the act of 1918, which is intended to protect certain classes of claimants, will be made virtually of no value by the letting in of a large number of claimants, never intended by the Legislature, whose claims are far removed from the improvement under way. It may be said that it was not the intention of the majority of the court, in the Long Bell Lumber Co. case, to depart from prior jurisprudence, as appears from the face of the decision itself. It may also be said that the question presented is not one of equity, but is one of law, and of that kind which must be construed strictly, and the jurisprudence under it must be uniform, for there is a vast amount of material furnished monthly in this state under the statute, the furnishers looking largely to the statute for protection.
      “Since the [forming] material furnished did not enter directly into the improvement, but only in an indirect and secondary manner, and, in no sense, goes to make up the completed improvements, and since the act of 1918 has not been amended so as to bring the material furnished within its scope, there is nothing to do but to amend the judgment appealed from by rejecting the demand of the H. R. Hayes Lumber Company. * * * ”

      . Other decisions which have held materials to be not lienable by the applicable statute are B & G Crane Service, Inc. v. Anderson Bros. Corp., 132 So.2d 681 (La.App. 1st Cir. 1961) (files, nails, pipe cable, wedges, potato forks, and rope); and Terrebonne Lumber and Supply Co. v. Favret, 2 So.2d 256 (La.App. 1st Cir. 1941) (lumber for scaffolding and mortar box forms).

      . These amendments have both expanded and narrowed the scope of the lien. See, Act 59 of 1960 (excluding from section 2242 “persons to whom money is due for the lease of rental of movable property”); Act 537 of 1966 (including in section 2242 availability of the lien for architects and consulting engineers); Act 344 of 1975 (expanding both sections to include transportation costs for delivery of materials); Act 253 of 1977 (amending section 2242 to specify conditions under which architects and consulting engineers will be entitled to the lien.) See also Act 271 of 1926 (“furnishing material or supplies for use in machines used in connection” with public contracts).

      . In the instant case, our brothers of the Second Circuit in our view perceptively analyzed and decided the issue before us, 366 So.2d 208-209:
      “The material in question here (plywood, lumber and nails) was not incorporated into the completed concrete structure. The use of the material was temporary and not permanent and fixed. The material was not surrendered to the university for whom the work was done. Once the concrete hardened, the material was removed from the structure. In many jobs there are things which are used temporarily that do not become part of the completed structure. Examples in the cases include material used for making forms, scaffolding, lumber, nails, wedges, rope, cables, material in temporary embankments, temporary piling as well as tools and implements. Some of these things are ‘effectively consumed’, greatly damaged, or worn out by the temporary use to which they are employed. Nonetheless, they are not directly consumed in or by the work and exist in tangible form after the work is completed. An implement, no matter how specialized, which is used to create a particular shape required by a public contract, and no matter what its worth after, does not become a part of the work, and unlike dynamite directly employed to create a shape for the foundation of a work, it is not directly consumed so as to become a part of the work. This is the express pronouncement of the cases beginning in 1928 and ending in 1976, as we have reviewed them.”

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

       The purpose of the statute is evident from both its text and the title indicative of its object. The Public Works Act title, in pertinent part, provides that it was enacted:
      to protect persons doing work, performing labor or furnishing material for the construction, erection, alteration or repair of public buildings, public roads or public works of any character; . . Act No. 224 of 1918.


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Willie OATIS.
    No. 64545.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    George M. Strickler, Jr., New Orleans, Supervising Atty., Stefanie J. Allweiss, Student Counsel, App. Advocacy Program, Tulane University School of Law, 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.
   DIXON, Justice.

This writ was granted on defendant’s application, La., 374 So.2d 678, which complained that the Louisiana Department of Corrections incorrectly calculated his prison term by treating two sentences as consecutive, in spite of the fact that the trial judge imposed a concurrent sentence on the second conviction. An interpretation of the last paragraph of C.Cr.P. 901 was involved.

The Department of Corrections has now granted defendant the relief he requested-— that the sentence imposed on February 17, 1978 will run concurrently instead of consecutively with the sentence he is presently serving. Therefore, the issue is moot, and the writ is dismissed.


text:
    STATE of Louisiana v. Larry Wayne SMITH.
    No. 66658.
    Supreme Court of Louisiana.
    Jan. 23, 1980.
   In re Larry Wayne Smith, applying for writs of certiorari, mandamus, prohibition and review and for a stay order. Parish of Bossier. No. 59088.

Denied.


text:
    STATE of Louisiana v. Larry Gayle HOLLIE and Sean Donald Yates.
    No. 66637.
    Supreme Court of Louisiana.
    Jan. 24, 1980.
   In re Larry Gayle Hollie and Sean Donald Yates, applying for writs of certiorari, prohibition and mandamus. Parish of Calca-sieu. Nos. RC 10-80 and RC 11-80.

Application denied.


text:
    STATE of Louisiana v. Leon and Annie Lee JOLLA.
    No. 66638.
    Supreme Court of Louisiana.
    Jan. 24, 1980.
   In re State of Louisiana, applying for supervisory writs. Parish of East Baton Rouge. No. 5-79-905.

Granted.


text:
    Fred DANIELS v. Halcott L. CONN et al.
    No. 66416.
    Supreme Court of Louisiana.
    Jan. 24, 1980.
   In re Halcott L. Conn, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. No. 7153.

Granted.

WATSON, J., recused.


text:
    STATE of Louisiana v. Courtland SMITH.
    No. 66644.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
   In re Courtland Smith, applying for writs of certiorari, review, prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 7-79-124 and No. 2-79-576.

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

DIXON, CALOGERO and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. Billy GUICE and Howard Claxton, Sr.
    No. 66371.
    Supreme Court of Louisiana.
    Jan. 30, 1980.
   In re Billy Guice and Howard Claxton, Sr., applying for writs of certiorari, mandamus and prohibition and stay order. Parish of Madison. Nos. 30446 and 30449.

Denied.

CALOGERO, J., would grant the writ application.


text:
    STATE of Louisiana v. Franklin D. TOUPS.
    No. 66705.
    Supreme Court of Louisiana.
    Jan. 30, 1980.
   In re Franklin D. Toups, applying for supervisory writs. Parish of Jefferson. No. 79-1225.

Writ denied.


text:
    STATE of Louisiana v. George McCORMACK.
    No. 66717.
    Supreme Court of Louisiana.
    Jan. 30, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari and stay order. Orleans Parish. No. 273-765.

Writ denied on the showing made.


author: FORET, Judge.

text:
    Robert W. DOMINGUE, Plaintiff, v. LUKE FRUGE, INC., et al. Defendants. (Trinity Universal Insurance Company, Appellant).
    No. 7301.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 1979.
    Rehearing Denied Feb. 12, 1980.
    Mouton & Jeansonne, Welton P. Mouton, Jr., Lafayette, for defendant-appellant.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Fred H. Sievert, Jr., Plauche, Smith, Hebert & Nieset, Allen L. Smith, Jr., McClain, Morgan & Greenwald, R. Scott McClain, Brame, Bergstedt & Brame, David A. Fraser, Lake Charles, Voorhies & Labbe, D. Mark Bienvenu, Nicholas Gachassin, of Cole & Guidry, Lafayette, for defendant-ap-pellee.
    Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, Raleigh Newman, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   FORET, Judge.

The issue presented by this appeal is whether indemnity is available after a settlement agreement, prior to trial, between one of several defendants and the plaintiff where a subsequent jury verdict completely exonerates from liability the settling defendant. The district court held that indemnity is not available. We affirm.

Plaintiff, Robert Domingue , sustained injuries, from which he died ninety days later, when he fell from the derrick of a work-over rig owned by his employer, Luke Fruge, Inc. The accident occurred on June 4, 1976. The Luke Fruge rig was on location for Exchange Oil and Gas Corporation (hereafter Exchange), the owner of an oil well which was situated on inland waters in Cameron Parish, Louisiana.

Exchange had chartered two barges to facilitate the work-over operation. One barge was moored to the well structure, and the truck-mounted work-over rig of Luke Fruge, Inc. had been positioned on the deck of the barge for well operations. The second barge chartered by Exchange had been towed to location and tied on to the first barge. On the deck of the second barge were several vehicles, including a wireline truck owned by Otis Engineering Corporation (hereinafter Otis), the insured of Highlands Insurance Company.

Made defendants in the case were Exchange Oil and Gas Corporation; Luke Fruge, Inc. and his alleged insurer, Great Falls Insurance Company; Ivan Fuselier and his alleged insurer, Trinity Universal Insurance Company, who then third-partied Otis Engineering Corporation and its insurer, Highlands Insurance Company. The case was tried to a jury in Cameron Parish, and the jury was asked to answer detailed interrogatories in rendering its verdict. On the day of the trial, but immediately prior to the trial, Trinity Universal Insurance Company, insurer of Ivan Fuselier, and Ivan Fuselier entered into a settlement with the plaintiff for $100,000.00, in full settlement of all claims against Trinity,.and presumably Ivan Fuselier. Plaintiff reserved all of his rights against all of the other defendants.

Ivan Fuselier was allegedly an independent contractor who was hired by Exchange to perform “drilling supervisor” duties and to oversee Exchange’s interest in the well operations. Trinity Universal denied that its policy of insurance issued to Ivan Fuselier covered the allegations in the Domingue law suit. However, as mentioned above, prior to the commencement of trial, Trinity Universal entered into a settlement agreement with the plaintiff for the settlement of all claims of plaintiff against Trinity and presumably Ivan Fuselier.

The jury found, pursuant to instructions under the Federal Admiralty and Maritime Laws, that Robert Domingue, decedent, was a seaman; that Exchange Oil and Gas Corp. was negligent; and that the work-over barge on which Domingue was working was unseaworthy. Luke Fruge, Inc., Ivan Fuse-Her, and Otis Engineering Corporation were all found not guilty of any negligence. Finally, Robert Domingue was found to have been 5% contributorily negligent, and the jury granted an award totalling $397,698.07.

The only appeal taken was by Trinity as a result of the trial court’s finding, on a motion for new trial on that single issue, that Trinity was not entitled to indemnification from any of the other defendants or their insurers.

Although the jury exonerated Fuselier of any negligence, Trinity Universal sought a full indemnification and repayment from the other exonerated defendants and/or their alleged insurers of the $100,000.00 that it paid in settlement to plaintiff. It now prosecutes this appeal and seeks full indemnity or, in the alternative, contribution from several insurers including Highlands Insurance Co., Stonewall Insurance Co., and Niagara Fire Insurance Co. on the basis of proration of the various applicable insurance policies. Trinity bases its claim for indemnity and/or contribution upon the rule enunciated in the case of Wisconsin Barge Line, Inc. v. The Barge Chem 300, 546 F.2d 1125 (5th Cir. 1977).

A reading of the Wisconsin Barge case immediately reveals its distinction from the instant case. In Wisconsin Barge, the Jones Act employer who settled with one of his crewman for injuries sought indemnity from the owner of a barge, the charterer of the barge and the wharfinger, contending that their negligence resulted in his Jones Act liability. Judge Fay, in writing the decision, pointed out that a Jones Act employer has significant responsibilities toward a crewman which might not result from an overt act of negligence on the part of the Jones Act employer. As a matter of fact, in the Wisconsin case there was also pending an Illinois state action in which the employer faced serious justiciable issues and potential liability (Footnote 3, pg. 1129 supra). The Court found the employer’s exposure realistic, its settlement justified and, upon further finding that the employer had not, in fact, been negligent, nor was the vessel unseaworthy but that the wharfinger was the sole and proximate cause of the accident, granted indemnity.

This is entirely different from what Trinity seeks to do in the instant case. Wisconsin Barge recognized the right of indemnity from a negligent third party. Here, Trinity seeks indemnity or contribution from alleged insurers of its own non-negligent insured.

In the instant case, its insured, Ivan Fuselier, was exonerated from negligence. That means that neither Ivan Fuselier nor anybody who might provide insurance coverage for Ivan Fuselier is liable for anything. Trinity, however, who wrote a policy covering Fuselier, believed that Fuselier might have been negligent and chose to settle its liability, if any, without a trial. The other insurers, believing that they did not cover any liability of Fuselier, went to trial and the issue of any coverage for Fuselier was rendered moot when it was found by the jury that Fuselier was not negligent and, hence, there was no “legal liability” for which any insurance coverage was necessary.

It should be noted that the same Judge Fay is the author of a recent Fifth Circuit opinion concerning contribution among joint tort feasors in Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir. 1979).

In the Leger case, a Jones Act claimant filed suit against his employer and several other defendants as a result of personal injuries. The plaintiff settled his claims with his employer on the morning of the trial, and the plaintiff, Leger, tried his case solely against one of the defendants.

The district court ultimately held that the negligence of all three defendants was at issue and directed the jury to assign percentages of negligence to each. The Court then apportioned the jury’s award on the basis of the percentage of negligence which each defendant played in causing the damages and required Dresser to pay only its share of liability. This portion of Leger is of no moment to this appeal. What is of interest in this appeal, however, is the very frank discussion of Judge Fay about the court’s attitude concerning settlement of parties in pending litigation.

In the Leger case, one of the issues by the remaining defendant in the lawsuit, Dresser Industries, was whether Dresser Industries got any credit against the plaintiff’s judgment for the sums paid by Drilling Well Control, plaintiff’s employer, and Continental Oil Company. The jury found the aggregate negligence of both Drilling Well Control and Continental to have been 20%. Those defendants, however, had paid in settlement a sum in excess of 20% of the jury verdict. Dresser Industries, the sole defendant in the lawsuit, wanted a full dollar for dollar credit against the judgment. In denying this dollar for dollar credit, Judge Fay had the following comments to make concerning settlement:

“Intervening cases justify our departure from prior case law in this area. See Billiot v. Sewart Seacraft, Inc., 382 F.2d 662 (5th Cir., 1967); Loffland Brothers Co. v. Huckabee, 373 F.2d 528 (5th Cir., 1967). The prior rule, as enunciated in Billiot and Loffland, provided that, where one jointly negligent maritime defendant had settled before trial, the injured party could recover from the remaining defendant' an amount determined by reducing the total damages by the amount of the settlement. This method was designed to prevent the plaintiff from receiving a double recovery for his injuries. In our view, the Leger rules accommodate the interests of fairness and deterrence without sacrificing the policy against double recovery upon which Billiot and Loffland were founded.
“In this case, Leger did not receive a double recovery for his injuries. In accord with its ground rules, the trial court rendered judgment against Dresser for $127,840.00, representing Dresser’s percentage of negligence (45%) multiplied by Leger’s damages as found by the jury ($284,090.00). Although Leger nominally received $310,171.05 by virtue of the settlement and the judgment, we do not consider this a double recovery. Leger merely obtained a favorable settlement. By releasing DWC and Continental in exchange for $182,331.05, Leger “sold” or relinquished any claims which he had against them. See Rose v. Associated Anesthesiologists, 163 U.S.App.D.C. 246, 501 F.2d 806 (1974) (characterizing a settlement as a pro rata sale of the plaintiff’s claim). At the time of the settlement negotiations, no one knew how a jury would apportion fault or in what amount it would find damages. By settling with Continental and DWC, Leger took the risk that he was foregoing a larger amount possibly to be obtained at trial. Likewise, Continental and DWC must have considered the amount for which they settled to be less than their exposure at trial would have been. Dresser made a different assessment. By going to trial it took the risk that the jury would find substantial damages and a high degree of negligence on its part. With the benefit of hindsight it is clear that only Leger correctly charted his course. However, according to the rules which we adopt today, Leger could have lost a great deal. For example, if he had settled with DWC and Continental for $182,331.05 and if the jury had found $1,000,000 in total damages, but that Dresser was only 5% negligent, Leger would have been left with the $182,331.05 in settlement with DWC and Continental and $50,000 in judgment against Dresser (5% of $1,000,000). He would have released a claim subsequently found to be worth $950,000 in exchange for $182,-331.05. He could not then complain that he made a poor settlement and that he should receive more based on the jury’s assessment of his total damages at $1,000,000. Whether the plaintiff obtains a favorable or unfavorable settlement, he may only recover once for each wrongdoer’s percentage of fault.
“The encouragement of settlements is the final factor which must be considered in this case. Whether the plaintiff or any of the defendants are ultimately found to have made a favorable settlement, we will ‘respect the aleatory nature of the settlement process . . . .’ Doyle v. United States, 441 F.Supp. 701, 711 n.5 (D.S.C.1977). If Dresser were allowed to reduce Leger’s recovery against it by the dollar value of Leger’s settlement, Dresser would be left to pay a small portion ($284,090.00 total damages minus $182,-331.05 settlement minus $99,400 for plaintiff’s contributory negligence equals $2,358.95) of the total damages even though its negligence was the main contributing factor in causing them. Thus, Dresser would benefit substantially from its intransigence or miscalculation in refusing to settle the case. We refuse to adopt an approach which would reward a defendant for refusing to settle. If the party decides to try a case, it must be prepared to accept whatever benefits or burdens flow from its decision.”

There is no jurisprudence from Louisiana appellate courts or the Louisiana Supreme Court on point in this case. Even assuming for the sake of argument that the Wisconsin Barge case is not distinguishable from the case at bar, and even ignoring the language in the Leger case, we would be disinclined to follow Wisconsin Barge for the very reasons stated in Leger. Trinity, whose own insured was completely exonerated from negligence ultimately, very simply achieved an out-of-court settlement which, at the time, it apparently believed to be in its and its insured’s best interest. Trinity did not enter into an agreement with plaintiff or any other of the defendants or their insureds whereby the latter agreed to indemnify Trinity wholly, or partly, for any of the settlement money which Trinity paid out in its settlement. To order indemnity or contribution in this case, in our view, would greatly alter the course of future settlement negotiations in cases such as this and would certainly be a radical departure from our long standing jurisprudential concept that settlements are to be encouraged rather than discouraged.

Trinity further claims that Ivan Fuselier was an omnibus insured under insurance policies, such as the one issued by Highlands Insurance, insurer of Otis Engineering. We find no merit in this contention. Our resolution of the first issue renders the second issue moot. Further, since the jury determined that all parties except Exchange were not negligent, and hence not liable, we see no need to discuss whether or not Fuse-lier was an employee of Exchange and whether or not the truck to which the derrick was attached was a vehicle within the meaning of the applicable policy or policies.

For the reasons given above, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against appellant, Trinity Universal Insurance Company.

AFFIRMED.

      . Following Robert Domingue’s death, his surviving spouse, Stella Domingue, was substituted as party plaintiff.


author: LEE, Justice, for the Court:

text:
    Mrs. Gary MINOR v. STATE of Mississippi.
    No. 51238.
    Supreme Court of Mississippi.
    Sept. 5, 1979.

      Brown, Alexander & Sanders, Everett T. Sanders, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Special Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice, for the Court:

Mrs. Gary Ann Minor was indicted, tried and convicted in the Circuit Court of the. First Judicial District of Hinds County (Honorable William F. Coleman, presiding) for embezzlement and was sentenced to five (5) years in custody of the Mississippi State Department of Corrections. She appeals and assigns five (5) errors in the trial below.

I.

Was the verdict against the overwhelming weight of the credible evidence?

Appellant was employed by the First National Bank of Jackson, Mississippi, from October 4,1976 to November 22,1977, when she was terminated. During May, 1977, and particularly on May 9, appellee was a clerk and was totally in charge of, and responsible for, the Christmas Club accounts of said bank. On that date, appellant prepared a debit slip on a non-existent Christmas Club account in the sum of four hundred dollars ($400.00), presented it to Mrs. Fran Rhodes, a teller at the bank, and received the $400.00 in cash. Appellant denied receiving the money. The evidence further reflects bank rules provided that a Christmas Club account could not be partially withdrawn, but that on May 9, 1977, appellant made a partial withdrawal from the customer Christmas Club account of Mrs. Sally Allen in the amount of one hundred dollars ($100.00). Subsequently, Mrs. Allen received a check in the sum of four hundred dollars ($400.00) for her account, when the correct amount should have been five hundred dollars ($500.00). She declined to accept same and then was paid $500.00 by the bank. All withdrawals from the Christmas Club accounts were required to be made through appellant.

The rule applicable to motions for directed verdicts and requests for peremptory instructions in criminal cases apply on the question here presented. All facts favorable to the State together with all reasonable inferences flowing therefrom are considered as true and, if they are sufficient to support a verdict of guilty, then the question is resolved against the appellant. Warn v. State, 349 So.2d 1055 (Miss.1977).

The proof for the State here was sufficient to support the verdict and it was not contrary to the overwhelming weight of the evidence.

II.

Did the trial court err in admitting in evidence incompetent and prejudicial matters?

Appellant assigns three (3) errors relating to incompetent, irrelevant, and prejudicial evidence. She contends that the court erred in (1) admitting appellant’s bank statements and deposit slips over a period from December 7, 1976 through December, 1977, together with testimony in regard to them, (2) that Exhibits 1 through 6 constituted hearsay evidence, and (3) that Exhibits 2, 4, 5 and 6 (computer printouts) should not have been admitted upon the testimony of Charles Bailey, since he was not an expert, supervising those computer printouts.

The bank statements and deposit slips of appellant reflected cash deposits into her account, which were in addition to her admitted income, and were competent to shed light upon the charge against her. In 29 Axn.Jur.2d Evidence § 266, at 315 (1967) the general rule is stated:

“The modern doctrine is extremely liberal in the admission of any circumstances which may throw light upon the matter being investigated, and great latitude must be given the prosecution in the production of its evidence in proof of criminal charges .... [W]here the proper determination of a fact depends upon circumstantial evidence, the safe practical rule to follow is that in no cases is evidence to be excluded of facts or circumstances connected with the principal transaction from which an inference can be reasonably drawn as to the truth of a disputed fact.”

Also, appellant introduced testimony to explain her version of the deposits and the entries on the statements. The evidence was properly admitted.

Exhibit 1 was the $400.00 debit executed by appellant, Exhibit 3 was a miscellaneous savings transaction form, and Exhibits 2, 4, 5 and 6 were computer printouts. Those exhibits were introduced pursuant to the identification of Charles E. Bailey, Jr., senior vice president and comptroller of the First National Bank. He was in charge of the security department, had been employed by First National Bank twenty-three (23) years, worked with all the internal operating departments of the bank and department heads, and was security officer of the bank. He was knowledgeable with all types of accounts in the bank. Bailey testified that he was familiar with the operation of the computer, that he analyzed data received from same and was qualified to do so.

All of the State’s exhibits were kept and used in the normal course of business and were in the custody and control of Mr. Bailey, a high official in the bank. Their introduction was not objectionable on the ground of hearsay evidence.

Appellant further complains that the computer printouts, Exhibits 2, 4, 5 and 6, should not have been admitted because Mr. Bailey was not qualified as a computer expert. In Chrysler Credit Corporation v. Bank of Wiggins, 358 So.2d 714 (Miss.1978), quoting from King v. State, ex rel. Murdock Acceptance Corp., 222 So.2d 393 (Miss.1969), this Court stated the foundation for admitting a computer printout into evidence:

“ ‘(1) ■ • [T]he electronic computing equipment is recognized as standard equipment, and (2) the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded, and (3) the foundation testimony satisfies the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission.’ 222 So.2d at 398.” 358 So.2d at 718.

We are of the opinion that the evidence sufficiently showed the above requirements and that the printouts were properly admitted.

III.

Did the trial court err in permitting the district attorney to engage in prejudicial conduct?

Appellant argues that the trial court erred in permitting the State to cross-examine appellant’s husband as to the illegality of his gambling and the failure to report his gambling income on a tax return; also, in permitting examination by the State of the appellant as to her employment at Fidelity Bank and her discharge from that bank. Appellant’s husband testified that he had given cash sums of money to appellant and that he received those sums from gambling. She went into, and bi’ought out, evidence of the gambling income in an attempt to explain the source of cash flow to appellant’s account and both appellant and her husband testified to those facts. The district attorney was properly permitted to cross-examine the witness on such matters. Further, no objection was made to the cross-examination at the time such testimony was given.

When the appellant testified on cross-examination, the district attorney inquired about her employment at Fidelity Bank and whether she was terminated by that bank. An objection was interposed and sustained by the court. The testimony follows:

“Q. Did you work after you left the bank?
A. Yes, I did.
Q. Where did you work?
A. Fidelity Bank.
Q. Okay. Were you terminated at Fidelity Bank?
A. Yes, I was.
Q. Why were you terminated at Fidelity Bank?
BY MR. BROWN: Your Honor, we restate our objection to those questions and assume its been running all the time he’s asked them.
BY THE COURT: Objection is sustained.”

No objection was made to the question of whether or not she was terminated by Fidelity Bank. The objection was made when the question was asked why she was terminated and the objection was sustained by the Court. Appellant did not answer the question. Although appellant moved for a mistrial, which was overruled, she did not request the court to instruct the jury to disregard the question. We are of the opinion that no error was committed by the court.

Appellant complains of improper statements made by the prosecution during closing argument, but the record does not contain the argument and the point has not been preserved. There is no merit in this assignment.

IV.

Did the court err in granting Instruction S-l requested by the State?

The Instruction S-l follows:

“The Court instructs the Jury that if you believe from the evidence beyond a reasonable doubt and to a moral certainty that on May 9, 1977, Garry Ann Minor, the Defendant, being then and there the agent, servant, and employee of First National Bank, a banking corporation, did then and there by virtue of her employment as such agent, servant and employee, have in her possession and under her control $400.00 good and lawful money of the United States of America, the property of First National Bank, a banking corporation, and did then and there fraudulently appropriate that $400.00 to her own use, and did then and there wilfully, unlawfully and feloniously embezzle that $400.00 and convert the same to her own use with the wilful, felonious and fraudulent intent to cheat and defraud First National Bank, a banking corporation, then you must find the Defendant, Garry Ann Minor, guilty of embezzlement.”

Appellant contends that the court erred in granting the above instruction because the State’s case was based purely on circumstantial evidence and that the instruction did not impose upon the State the burden of proving the defendant guilty beyond every reásonable doubt, to a moral certainty and “to the exclusion of every other hypothesis than that of guilt.” The court did not err in giving the Instruction No. S-l for three reasons. (1) The record reflects that appellant objected to the instruction on the ground that it is vague and confusing to the jury, and did not specifically object for the reason that it failed to include the above phrase. Under Rule 42, Miss.Sup.Ct. Rules, this Court will not consider an assignment relating to an instruction where the specific reason for objection was not set forth. (2) The defendant was granted four instructions and they all only place the burden on the State of proving guilt beyond reasonable doubt. No instruction was requested by the appellant that the jury was required to believe guilt to the exclusion of every other reasonable hypothesis. (3) The evidence shows that Mrs. Minor had the sole responsibility on Christmas Club accounts and that she presented to Mrs. Fran Rhodes, teller, a debit drawn by her in the amount of $400.00 on a non-existent account. Mrs. Rhodes testified positively that appellant brought to her the $400.00 debit slip on May 9, 1977, that Mrs. Rhodes took it, cashed it, and gave the money to appellant after stamping her (Rhodes) number on the debit. This was direct, not circumstantial, evidence.

There being no reversible errors in the trial below, the judgment and sentence of the court are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


text:
    The ASTRO-LOUNGER COMPANY, INC. v. JESCO, INC.
    No. 51426.
    Supreme Court of Mississippi.
    Sept. 12, 1979.
    Kenneth M. Burns, Okolona, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Thomas D. Murry, Tupelo, for appellee.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

Before SMITH, P. J., and LEE and BOWLING, JJ.

AFFIRMED.