author: MARCUS, Justice.

text:
    William C. ROBERTS v. STATE of Louisiana, Through the LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION.
    No. 81-C-0974.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      Daniel E. Broussard, Jr., of Broussard, Bolton & Halcomb, Alexandria, for plaintiff-applicant.
    Steven R. Giglio, Baton Rouge, for defendant-respondent.
   MARCUS, Justice.

William C. Roberts instituted this action against the State of Louisiana, through the Department of Health and Human Resources, to recover damages for personal injuries sustained in an accident in the lobby of the United States Post Office Building in Alexandria, Louisiana. Roberts fell after being bumped into by Michael Burson, the blind operator of the concession stand located in the lobby of said building. He alleged that since Burson was employed by the state and acting within the course and scope of his employment at the time of the accident, the state was vicariously liable. Additionally, plaintiff alleged that the state was negligent in failing to properly train and supervise Burson in the operation of the concession stand. Though charged with negligence, Burson was not made a party to the action.

Following a trial on the merits, the district judge rendered judgment in favor of the state and against plaintiff, dismissing plaintiff’s suit at his cost. In his written reasons for judgment, the trial judge stated that, finding no employer-employee relationship between the state and Burson, the state was not vicariously liable. He further found that the state had no duty to provide on site mobility training to the blind operator. The court of appeal affirmed the judgment of the district court, concluding that plaintiff failed to prove that Burson was negligent. The court of appeal did not reach the employment relationship issue. On plaintiff’s application, we granted cer-tiorari to review the correctness of that decision.

The facts are generally not in dispute. Michael Burson, who was totally blind, operated the concession stand in the lobby of the post office building. On September 1, 1977, at about 12:45 in the afternoon, he left his concession stand to go to the men’s bathroom located on the second floor of said building. As he was walking through the lobby toward the elevator, he bumped into plaintiff causing plaintiff to fall to the floor. Burson was not using a cane at the time of the accident. The plaintiff, an eighty-five-year-old attorney, sustained a fractured hip as a result of the accident.

The State of Louisiana, through the Division of the Blind of the Department of Health and Human Resources (formerly the Department of Public Welfare), has been providing services to the blind since 1928. Programs of services to the blind are presently authorized by La.R.S. 46:331-334. One of the nine services and programs listed in the Division for the Blind Manual, Chapter VII. Services of the Division for the Blind, is the vending stand and small business enterprises program. The vending stand program has its genesis in the Randolph-Sheppard Act passed by Congress in 1936. This act gave authorization for the establishment of vending stands by blind persons in federal buildings. The act was subsequently broadened to include industrial plants and other private locations. The Division for the Blind has been federally designated as the state licensing agency for the operation of the vending stands in this state since 1955. Approximately eighty percent of the monies expended for the implementation of the program is in the form of federal matching funds. There were some one hundred and fourteen vending stands operated by blind persons in publicly and privately owned buildings in this state at the time of the trial of this matter.

A vending stand is defined in the Division Manual as a small business concession, usually in the lobby of a public building or private location, for the purpose of selling such articles as are agreed upon by the custodian of the building and the Department. The stated objective of the vending stand program is to provide blind individuals with remunerative employment. The Division Manual further states that the program has proved to be “one of the most effective means of affording a blind person the opportunity to earn his own living.”

The procedure for setting up a vending stand is set forth in the Division Manual. Sites are selected and procured by the Department which builds the stand, purchases the equipment and provides the initial stock valued at approximately one thousand dollars. The right, title to and interest in the vending stand equipment and initial stock is vested in the Department.

Operators for vending stands are selected from a pool of applicants who have successfully completed a training program conducted by the Division. A license is issued to the operator for an indefinite period but may be terminated by the Department when the stand is not being operated in accordance with its rules and regulations.

The Department, through its vending stand supervisors, regularly and systematically reviews the operation of the facilities. A supervisor visits the stand monthly and evaluates the general appearance of the operation, methods of merchandising, quality and variety of the stock, inventory estimates and prices being charged. The testimony of Department personnel makes clear that management services are provided to insure that this form of business opportunity remains available for the blind persons of Louisiana. If, in the opinion of the supervisor the stand is being operated in such a manner as to jeopardize either the continuance of the location or the operator’s ability to make a living, the blind individual will be counseled regarding necessary modifications. A licensed operator is entitled to a hearing if dissatisfied with any action arising from the operation or administration of the vending stand program.

The blind operator receives all profits generated by the concession. The state does not withhold any taxes from the operators nor does it extend any state benefits to the operators. Once the Department has paid for the initial stock, all transactions regarding merchandise are between the vending stand operator and his chosen supplier. Prices for the items are fixed by the operator within the prescribed guidelines of the Department. When an operator moves out of a stand, he is required to notify the Department in writing and is obliged to reimburse the Department for any shortage in the inventory below the one thousand dollar inventory initially provided. If the stock in the stand is valued in excess of the initial inventory, the new operator has to pay that amount to the outgoing concessionaire.

The issues presented for our consideration are: (1) whether the state was the employer of Burson, the blind operator of the concession stand, and therefore vicariously liable for his alleged negligent conduct and, if so, whether Burson was negligent, and (2) whether the state committed an independent act of negligence.

La.Civ.Code art. 2320 provides the basis for holding an employer liable for the negligent acts of his employees: “Masters and employers are answerable for damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” To come within the scope of art. 2320, the plaintiff must show the existence of an employer-employee relationship. In evaluating the sufficiency of such proof, courts have been mindful that, by its nature, vicarious liability mandates strict construction. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968); Keen v. Pel State Oil Co., Inc., 332 So.2d 286 (La.App. 2d Cir. 1976) (on rehearing), writ denied; Strawder v. Harrall, 251 So.2d 514 (La.App. 1st Cir. 1971).

The definition of an employee is set forth in La.Civ.Code art. 163:

Free servants are in general all free persons who let, hire, or engage their services to another in this state, to be employed therein at any work, commerce or occupation whatever for the benefit of him who has contracted with them, for a certain price or retribution or upon certain conditions.

The single, most important factor to consider in deciding whether the employer-employee relationship exists for the purposes of art. 2320 is the right of the employer to control the work of the employee. Hickman v. Southern Pacific Transportation Company, 262 La. 102, 262 So.2d 385 (1972); Blanchard v. Ogima, supra. In Blanchard, we stated:

It is the right of control of the time and physical activities in the other party and the existence of a close relationship between the parties which determine that one is a servant.

We further stated:

“Servant” must be interpreted as that particular kind of agent who has a very close economic relation to, and is subject to very close control by the principal. A servant is one who offers his personal services for a price. He is an integral part of his employer’s business and must submit to the control of his physical conduct as well as of his time.

In the instant case, Burson as an operator of the concession stand, had not engaged his services to the state. Moreover, the benefit of his toil inured to him and not to the state. All profits generated from the stand were income to Burson. The state neither shared in the profits nor did it pay him any form of remuneration. While Burson used the state-owned facility and equipment, he was obliged to reimburse the state for losses sustained with respect to the initial inventory supplied by the state.

Burson operated strictly under a license issued to him by the state. The services of the Department in the ongoing operation of his vending stand were in the form of supervision and business counseling. The license required him to abide by the rules and regulations promulgated by the state and federal agencies but these guidelines are clearly distinguishable from the traditional concepts of control used in defining an employer-employee relationship. As a blind person, Burson was not hired or paid wages to do work for the state. He was licensed and supervised in order to be successfully independent.

In the words of Mr. Guy DeCharry, Bur-son’s supervisor:

[O]ur program is to rehabilitate the blind. . . . He’s not working for us. He’s working for himself. . . . • [I]t is not that we want to force them to do something, you know, from the agency’s standpoint, but just merely from the standpoint of keeping our program going. ... He’s not an employee. In other words he is an independent person. We are in there to counsel him on any of these subjects but ... we can’t tell him what to do.

If aggrieved by any agency action, Burson was entitled to a hearing with numerous due process guarantees. While his license was subject to revocation for violations of the regulations, the state’s authority to cancel a license, even in a closely supervised occupation, must not be confused with the employer’s right of dismissal.

Accordingly, we conclude that under the general principles of the master-servant doctrine as applied to the relationship between the state and Michael Burson in this case, the state was not the employer of Burson at the time of the accident and therefore is not vicariously liable for his alleged negligent conduct. Finding no employment relationship, we do not reach the issue of whether Burson was negligent.

Plaintiff also urges that we find the state to have been independently negligent for its failure to instruct Burson that he must use a cane when traversing the lobby of the post office building.

La.Civ.Code art. 2315 provides in pertinent part:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

La.Civ.Code art. 2316 further directs:

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Under these articles, the elements of a cause of action are fault, causation and damage. Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976). The existence of a legal duty coupled with a breach of that duty are p1rerequisites to any determination of fault. Pence v. Ketchum, supra. Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. In all cases, duty can be stated generally as the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Straley v. Calongne Drayage & Storage, Inc., supra.

In the instant case, the state issues licenses only to those blind applicants who have successfully completed training programs in the operation of vending stands. While the state counsels licensees in the operation of the stands, it cannot be said that the state owes a duty to instruct them in the proper method of mobility outside the vending stands. Accordingly, we find no merit in plaintiff’s contention that the state was independently negligent in this case.

DECREE

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

DENNIS, J., dissents with reasons.

WATSON, J., dissents.

      . On motion of Richard L. Crowell, the duly appointed Provisional Administrator of the Succession of William C. Roberts, Jr., Probate No. 20285, Ninth Judicial District Court, Parish of Rapides, State of Louisiana, we granted an order authorizing him to be substituted as the legal successor of William C. Roberts, who died on August II, 1981, during the pendency of this action.

      . 396 So.2d 566 (La.App. 3d Cir. 1981).

      . 400 So.2d 667 (La.1981).

      . La.R.S. 46:331-334 provided at the time of this suit as follows:
      § 331. Prevention of blindness; vocational training and rehabilitation
      The state department of public welfare may establish and administer an adequate system of conservation of sight and prevention of blindness, vocational training and rehabilitation for the blind and may make the rules and regulations necessary for the efficient administration thereof.
      § 332. Powers of department of public welfare
      The state department of public welfare may:
      (1) Make and promulgate such rules and regulations as are necessary or desirable for carrying out the provisions of this Subpart and such rules and regulations shall be binding upon parishes or other local units and their agents and upon those private agencies and individuals who participate in the benefits of this Sub-part.
      (2) Administer and supervise a state-wide program for the conservation of sight and the prevention of blindness through lectures, posters, exhibits and such other methods as is deemed necessary; act in close cooperation with other state departments and private agencies; encourage vision testing in schools and the early correction of eye defects where found; and establish sight-saving classes where needed.
      (3) Provide an active register of the blind to be kept up-to-date in the department of public welfare.
      (4) Promote a system of economic security for the blind by administering and supervising a state-wide program of vocational training and rehabilitation for the blind by providing the necessary facilities in private and public agencies.
      (5) Provide adequate home teachers who meet the required standards of training and experience.
      (6) Provide the necessary facilities, equipment and initial stock, for the operation of vending stands and such other small business enterprises as may be found feasible for operation by blind persons.
      (7) Assist other departments, agencies and institutions of the state and federal government, when so requested, by performing services in conformity with the purpose of this Sub-part.
      (8) Administer such federal, state, parish, municipal or private funds as may be available for the prevention of blindness, vocational training and rehabilitation for the blind.
      (9)Act as agent of the state to cooperate with the federal government in any matter relating to sight conservation and the welfare of the blind.
      § 333. Blind persons not to be disturbed in operation of vending stands
      No blind person under this Sub-part shall be required to pay any fee, service charge or other equivalent thereof upon the operation of a vending stand in a public building nor shall the blind person be disturbed in the security of the operation of the vending stand in any way.
      § 334. Sheltered industries program for the blind
      The state department of welfare may administer an adequate sheltered industries program by supplying materials to individual workers and workshops and, when the individuals, workshops and products meet the standards established by the state department, assist in the sales of the finished products as follows:
      (1) Designate central gathering points where the products can be concentrated, and the state department shall keep itself informed of the number of manufactured products available at the gathering points with which any order by the State and its subdivisions may be filled in accordance with the provisions of this Sub-part.
      (2) After consultation with the various departments of the state, fix standards of manufacture of the products and inform interested parties by circular letter to the end of encouraging blind persons affected by this Sub-part.
      (3) If the state department deems necessary, fix a differential above market price in favor of blind persons and their products not to exceed forty percent above market quoted prices for equipment of like standard.

      . The rules require that the licensee operate the vending stand in accordance with all applicable health laws and regulations, keep books and make inventories, devote full time to the stand and notify the Department in case of sickness or inability to continue, employ necessary competent staff to assist him in conducting his business properly and obtain approval of the Department in the hiring, discharging and setting of pay scales of such help, show preference to blind persons in the selection of his staff, pay cash for all merchandise, be responsible for damaged equipment, keep the stand open for business during agreed upon hours, and maintain a standard of personal conduct which will not reflect unfavorably upon the vending stand program.
      The operator is prohibited from purchasing any equipment without the permission of the Department, extending credit to customers, using games of chance, buying, selling or possessing alcoholic beverages in the vending stand location, operating any entertainment devices in the vending stand, representing himself as owner of the stand and altering any equipment without written consent of the Department.

      . The standards and procedures to be followed in hearings are set forth in Division for the Blind Manual, Chapter VII, 7-316(C):
      (1)An operator shall have the right to be represented at the hearing by counsel or by a friend; (2) Hearings shall be held within a reasonable time after the request therefor and at a time and place reasonably convenient to the operator;
      (3) The operator shall have an adequate opportunity to present his case and for cross-examination;
      (4) The director will designate a responsible official or panel acting for the department to hold the hearing;
      (5) The decision shall be based upon the information adduced at the hearing. If the official or panel which held the hearing does not have authority to make the final decision, the verbatim transcript of the testimony and exhibits (or an official report containing the substance of what transpired at the hearing) together with all papers and reports filed in the proceedings, and the hearing officer’s or panel’s recommendation, shall constitute the exclusive record for decision by the commissioner and shall be available to the operator;
      ' (6) The decision shall be in writing and shall set forth the issue, the relevant facts brought out at the hearing, the pertinent provisions in law and agency policy, and the reasoning that led to the decision. The operator shall be forwarded a copy of the decision immediately upon its issuance;
      (7) The decision shall constitute the official action of the department in relation to the action which was the subject of the hearing.


source: Caselaw Access Project

author: KLEES, Justice ad hoc . WATSON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. David SINGLETON.
    No. 81-K-1026.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      Leroy Smith, Jr., Leroy Smith, Jr., Ltd., Tallalah, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James David Caldwell, Dist. Atty., Crawford A. Rose, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   KLEES, Justice ad hoc .

Defendant David R. Singleton was charged by bill of information filed June 17, 1980 with resisting an officer in violation of La.R.S. 14:108. After a trial before a judge alone, defendant was found guilty. On the date set for sentencing defendant filed a motion for a new trial. The trial judge denied the motion and sentenced defendant to two months in jail and a fine of $100.00. Defendant appears before this Court on writ of certiorari seeking review of his conviction and sentence. He relies on two assignments of error.

FACTS

On May 30, 1980, State Police Officer Damon Williams was alerted by Tallulah City Policeman Reginald Davis that the defendant was operating his vehicle on U.S. Highway 65. Trooper Williams had earlier informed the City and Parish law enforcement officers that defendant’s driver’s license had been suspended. Upon being advised by Officer Davis that defendant was operating a vehicle Trooper Williams proceeded in search of defendant. He then received a call from District Attorney Investigator Bugs Gilbert, who notified him that he had the defendant under surveillance. A short time later, Trooper Williams arrived at the scene. Trooper Williams testified that he observed the defendant pull to the left side of the street and exit the car from the driver’s side. The defendant admits that both Officer Davis and Investigator Gilbert saw him driving his vehicle, but states that Trooper Williams had not seen him because he was sitting in the parked vehicle when Trooper Williams arrived.

After approaching the defendant, Trooper Williams requested to see his driver’s license. The defendant refused and began to argue with the officer. Williams stated that when he then told the defendant that he had previously warned him that he would be apprehended if he was seen driving while his driver’s license was suspended. Williams then again asked for his license and defendant still would not produce it, and continued to argue. A person referred to as Stoughter then came out of his yard and began arguing with Trooper Williams, asserting that the defendant was not driving the vehicle. Officer Williams said that because he realized physical force would be necessary he went back to the patrol car and requested a driver’s license check on the defendant. The call confirmed that defendant was still under suspension. Trooper Williams then walked back to the defendant, and Stroughter continued to argue that Officer Williams had not seen defendant driving the vehicle. Trooper Williams moved toward the defendant and the defendant stepped back still insisting that he was not driving and placed himself behind Stroughter. At that time, Trooper Williams advised the other man, Stroughter, that he was also under arrest. Stroughter than attempted to attack him. At the same time, another person named Stroughter attempted to attack Trooper Williams from behind but was stopped by Investigator Gilbert. Officer Williams then pulled his revolver. The defendant was then searched, handcuffed and placed in the patrol car. Defendant was charged with resisting an officer and driving while his license was suspended.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant contends that the verdict is contrary to the law and evidence in that mere denial of guilt or argument does not constitute resisting an officer in violation of R.S. 14:10s.

In counsel’s view, defendant’s actions in simply arguing with the officer did not constitute intentional opposition to an otherwise lawful arrest under R.S. 14:108.

This record is clear, as the trial court found, that Trooper Williams had probable cause to arrest defendant on the traffic violation. The trooper had knowledge of defendant’s prior suspension, and insisted at trial that he had personally seen defendant pull over from the centerline to the shoulder of the road and emerge from the driver’s side. In the officer’s view, defendant’s stubborn insistence (against the facts) that he had not been driving went beyond mere argument and constituted a refusal to submit to’ lawful custody, especially when joined in the debate by Stroughter. According to Trooper Williams, in backing up, the defendant had attempted to maneuver Stroughter between them, while continuing to argue and inciting his friend. “. . . Stroughter is an important factor here,” Williams explained, “in the sense that he was running interference for [defendant] where I could not get to him in the sense that I was going to more over towards him to apprehend Mr. Singleton but Stroughter at the same time turned around and tried to attack me.” “It was like I was double teamed”, the officer complained. When asked by defense counsel whether his main problem was with Stroughter and not with the defendant, Trooper Williams thus replied, “It wouldn’t have been no problem if Mr. Singleton had of gone ahead and submitted to arrest . . . [a]ll he had to do is tell his friend to just back off . . . there’s no problem and he could have went on and gone peacefully.” However, in response to counsel’s question, “Did Mr. Singleton do anything, did he say Mr. Stroughter, would you argue with Mr. Williams or Mr. Stroughter would you help me or even, Stroughter, would you assist me in any manner?”, the officer admitted, “By his actions, not by words.. . he continued to argue ... and ... in a sense urging his friend on to deny it with him.”

The standard used in reviewing the sufficiency of evidence as enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 367, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant is guilty. State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Hartman, 388 So.2d 688 (La.1980).

Our careful review of the record in light of the standards set forth above reveals no abuse of the trial court’s findings of guilt.

We find that the defendant’s repeated and drawn-out argument and failure to submit to Trooper Williams after being placed under arrest, defendant’s stepping back, maneuvering and manipulation of Stroughter between himself and Trooper Williams and defendant’s other actions caused a delay in the actual arrest, allowed a crowd to form and placed Officer Williams in a potentially dangerous situation which constituted resistance and opposition to Trooper Williams.

ASSIGNMENT OF ERROR NO. 2

By this assignment, defendant argues that La.R.S. 14:108 is unconstitutional as construed by the trial court.

Prior to sentencing defense counsel addressed the trial court concerning its desire to file a motion for a new trial. He stated that the grounds for the motion were that the verdict as it stood violated defendant’s right under the First and Sixth Amendment to the United States Constitution. He argued that the verdict denied defendant freedom of speech because the only efforts defendant made were verbal, in that he disagreed with the police officer as to whether he was driving the car.

Defendant cites State v. Scott, 123 La. 1085, 49 So.2d 715 (1909), for the proposition that words alone are not sufficient to constitute conduct which would amount to resisting arrest. In Scott this Court found that “[i]n order that words should constitute the offense of resisting an officer, it would be necessary that they should have been spoken under circumstances affording the officer reasonable ground to believe he could not proceed with the arrest without incurring evident risk of serious injury.” Scott, supra 123 La. 1085 at 1086, 49 So.2d at 715 (1909).

Freedom of speech is protected by the First and Fourteenth Amendments to the United States Constitution. Also, Louisiana Constitution (1974) Article 1, § 7 states that “No law shall curtail or restrain the freedom of speech or of the press.” It has been established however, that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been through to raise any constitutional problem. According to Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), these “include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting words’ — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”.

As set forth in Assignment of Error No. 1, the evidence at trial presented a question of whether defendant merely exercised his right of free speech with Trooper Williams, or whether the physical activity constituted a resistance or obstruction to Trooper Williams. If defendant merely argued with Trooper Williams, the facts and circumstances in this case would have shown that the clear and present danger necessary in order to justify the state’s interference with defendant’s right to speak freely was not presented by defendant’s actions. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919). This was not the case. As we found above, the defendant’s actions constituted more than an exercise of free speech. They were positive activities designed to oppose the defendant’s being placed under arrest; and we find this assignment of error without merit.

For the reasons assigned, defendant's conviction is affirmed.

AFFIRMED

GUIDRY, J., Ad Hoc, concurs.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

The defendant was convicted of resisting an officer in violation of LSA-R.S. 14:108.

State Trooper Damon Williams undertook to arrest the defendant, who argued that he was not guilty, when one Stroughter, apparently defendant’s cousin, interjected himself into the discussion and even attempted to physically attack the trooper. The record suggests strongly that Stroughter was probably guilty of resisting an officer, but Singleton was convicted for what Stroughter did.

The only evidence in the record concerning Singleton’s guilt of the resisting offense is as follows:

“LEROY SMITH: What did — excuse me, Your Honor. What did Mr. Singleton do? What action did he take?
“DAMON WILLIAMS: No action except back up.
“LEROY SMITH: How far did he back up?
“DAMON WILLIAMS: No more than a step or two.
“LEROY SMITH: And he — and that was the resisting?
“DAMON WILLIAMS: Yes is was.”

The majority states that Singleton placed Stroughter between himself and the officer in an apparent attempt to avoid arrest, but Trooper Williams clarified the situation in the following testimony:

“LEROY SMITH: But he would have come past Mr. Stroughter or through Mr. Stroughter to get to you. Isn’t that correct?
“DAMON WILLIAMS: He had to walk by him, but it wasn’t like he was just standing right between us. He was standing to — like I was facing Singleton and Stroughter was standing to my left. “LEROY SMITH: Okay. And how much distance between you?
“DAMON WILLIAMS: It was uh, three or four feet. It was enough that when— okay, I have to bring up Mr. Stroughter again. It was enough that when Mr. Stroughter came after me, I was able to step back to keep from being attacked and had enough time for three people to grab him.”

The evidence simply does not prove beyond a reasonable doubt that defendant Singleton was guilty of resisting an officer.

His conviction and sentence should be reversed. I respectfully dissent.

       Judges E. L. Guidry, Jr., and F. William Swift, Jr., of the Court of Appeals, Third Circuit and Judge Robert J. Klees of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson and Harry T. Lemmon.

      . Resisting an officer, is the intentional opposition or resistance to or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
      The phrase “obstruction of’ as used herein shall, in addition to its common meaning, signification and connotation mean:
      (a)Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
      (b) Any violence toward or any resistance or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
      (c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
      (d) Congregates with others on a public street and refuses to move on when ordered by the officer.
      Whoever commits the crime of resisting an officer shall be fined no more than five hundred dollars or be imprisoned for not more than six months, or both.


author: DENNIS, Justice. MARCUS, Justice

text:
    Carolyn Ann Shockley LEWIS v. Robert Lee LEWIS, Jr.
    No. 81-C-1082.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      Glynn W. Reynolds, Alexandria, for plaintiff-applicant.
    James C. Downs, of Downs & Downs, Alexandria, for defendant-respondent.
   DENNIS, Justice.

This case, here on certiorari to the Third Circuit Court of Appeal, presents an important question under the Full Faith and Credit Clause and state law. It is whether a Louisiana decree in a separation proceeding awarding plaintiff $100 per month alimony pendente lite and $375 per month child support survived a Texas divorce decree which was subsequently granted to the defendant.

The parties were married in 1964 and lived together in Louisiana until they separated on September 25, 1976. In 1977 the wife filed a separation suit in the Ninth Judicial District Court for Rapides Parish and obtained an order awarding her custody of the three minor children born of the marriage, $375 per month child support and $100 per month alimony pendente lite. The husband had entered a general appearance in these proceedings.

The husband moved to Texas and instituted an action for divorce. The wife was served in Louisiana with a copy of the divorce petition but entered no appearance in the Texas proceedings. In January, 1978, the Texas court, finding that defendant had been a bona fide domiciliary of Texas for the preceding six months, granted him an absolute divorce and ordered him to pay $225 per month child support. The judgment was silent as to alimony.

After entry of the Texas decree the defendant ceased paying alimony and reduced his child support payments to $225 per month. Thereupon the wife filed a rule against the husband to make executory past due alimony and child support under the pendente lite judgment. Defendant appeared in the action and filed a plea of abatement maintaining that the alimony and child support provided by the Louisiana judgment had terminated by reason of the Texas decree. The trial court denied the motion and granted plaintiff judgment for the arrears. The judgment was reversed by the court of appeal which held that the Louisiana awards of alimony pendente lite and child support were dissolved by the Texas decree. 395 So.2d 426.

A divorce decree granted by a state to one of its domiciliaries is entitled to full faith and credit in another state insofar as it affects the marital status of the parties, even though the forum did not have personal jurisdiction over the other spouse. U.S.Const. art. 4, § 1; Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948); Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942) (Williams I). While the finding of domicile by the court that granted the decree is entitled to prima facie weight, it is not conclusive in a sister state but might be relitigated there. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945) (Williams II); Esenwein v. Commonwealth of Pennsylvania, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608 (1945). The latter course was followed in this case, as a consequence of which the Louisiana trial court found, in accord with the Texas court, that defendant was a bona fide domiciliary of Texas. The result in this situation is to make the divorce divisible — to give effect to the divorce decree insofar as it affects marital status and to make it ineffective as to those issues over which the Texas court lacked jurisdiction, i. e., alimony and child support. Estin v. Estin, supra.

Consequently, whether a foreign ex parte divorce decree affects the alimony provisions of a prior separation decree of another state depends ultimately upon that state’s local law. If under the local law of the prior separation forum a valid divorce does not automatically terminate the alimony order, a valid foreign ex parte divorce decree cannot affect the alimony award. On the other hand, in those jurisdictions where prior alimony orders automatically terminate upon divorce, a valid divisible foreign decree brings the alimony to an end because the decree must be given full faith and credit insofar as it affects marital status. See R. Leflar, American Conflicts Law § 227 (3d ed. 1977); Krauskopf, Divisible Divorce and Rights to Support, Property and Custody, 24 Ohio St.L.J. 346 (1963); Morris, Divisible Divorce, 64 Harv.L.Rev. 1287 (1951); 49 A.L.R.3d 1266 (1973); see also Brady v. Brady, 151 W.Va. 900, 158 S.E.2d 359 (1967).

In Louisiana, alimony pendente lite, i. e., support for the wife during pendency of suit for separation or divorce, automatically terminates upon divorce. La.C.C. arts. 148, 160; Golson v. Golson, 351 So.2d 100 (La.1977); White v. Morris, 236 La. 767, 109 So.2d 87 (1959); Bienvenue v. Bienvenue, 186 La. 429, 172 So. 516 (1937); Bowsky v. Silverman, 184 La. 977, 168 So. 121 (1936). Accordingly, even though the Texas divorce decree in the present case is divisible, and has no direct effect on the provisions of alimony pendente lite and child support in the Louisiana judgment, its ultimate consequence is to terminate the alimony penden-te lite because under Louisiana’s own law this type of support ends with the marriage.

The question of when the spousal support provisions of a separation decree are effectively cut off, however, is res nova in this Court. See Golson v. Golson, 341 So.2d 1229 (La.App. 1st Cir. 1977) reversed on other grounds 351 So.2d 100 (La.1977). Some jurisdictions have taken the position that the right to support automatically terminates upon the effective date of the foreign divorce, since the marital relationship upon which the separate support is based is thereby dissolved. Brewster v. Brewster, 204 Md. 501, 105 A.2d 232 (1954); Jelly v. Jelly, 327 Mass. 706, 100 N.E.2d 681 (1951); Shaw v. Shaw, 332 Ill.App. 442, 75 N.E.2d 411 (1947); State v. Lynch, 42 Del. 95, 28 A.2d 163 (1942). See also, 49 A.L.R.3d 1308 (1973). Other courts hold that the support provisions of the separate maintenance decree will remain in effect until the foreign divorce is brought to the attention of the support court. Jackson v. Jackson, 200 A.2d 380, (D.C.App.1964); Bloedorn v. Bloe-dorn, 64 App.D.C. 199, 76 F.2d 812, cert. den. 295 U.S. 746, 55 S.Ct. 658, 79 L.Ed. 1691 (1935). See also, 49 A.L.R.3d 1309 (1973). Since there is no express law on the issue, we are bound to proceed and decide according to equity. La.C.C. art. 21.

Endeavoring to decide equitably, we conclude that a valid foreign ex parte divorce is effective to terminate a prior Louisiana spousal support order only when that divorce is brought to the attention of this jurisdiction by the filing of a duly authenticated copy of the judgment in a Louisiana court either in a separate ordinary proceeding to have the decree recognized and made the judgment of a Louisiana court, or as a defense in the recipient’s action for arrearages, the result being that the recipient spouse will be allowed to recover as arrearages all those payments which fell due after the effective date of the divorce up to the time that the support-providing spouse brings appropriate proceedings in a Louisiana court. A divorce terminates alimony pendente lite, but it does not necessarily cut off the right to alimony after divorce. When a needy spouse has not been at fault, he or she has a right to alimony after divorce, which shall not be denied on the ground that one spouse obtained a valid divorce in a court of another state or country which had no jurisdiction over the person of the claimant spouse. La.C.C. art. 160. A requirement that pleadings be filed in this state before a valid ex parte foreign divorce may operate to terminate alimony pendente lite does not place an undue burden on the non-resident spouse. At the same time, it promotes an early determination of the jurisdictional validity of foreign divorces which often is in the interest of both parties. But, most importantly, it will help prevent the interruption of spousal support in those cases in which the recipient has not been at fault and is in need of support.

The parental obligation of child support, however, does not terminate with the dissolution of the marriage. The obligation on the part of the parent to support the child does not arise from the marriage but from the fact of paternity. La.C.C. art 227; State v. Seghers, 124 La. 115, 49 So. 998 (1909); 1 M. Planiol, Civil Law Treatise, pt. 2, § 1681 at p. 40 (12 ed. La.St.L.Inst. Transl.1959). The divorce of the parents “shall not in any case deprive the children born of the marriage, of any of the advantages which were secured to them by law, or by the marriage contract of their father and mother. * * *” La.C.C. art. 158. In fact, the obligation of the parents to support their dependent children is one of the circumstances which the court must consider in determining the entitlement and amount of alimony after divorce. La.C.C. art. 160. Accordingly, the judgment awarding support for a child has a legally independent basis and is not a mere incident of the separation decree which terminates with the dissolution of the marriage. If it is customary to deal with this matter in the same suit as that of divorce or separation, it is nevertheless true that it cannot be identified with the subject matter of the divorce or separation suit or be considered incidental to it. See Pascal, The Work of the Louisiana Supreme Court for the 1955-1956 Term — Persons, 17 La.L.Rev. 303, 311 (1957). Our previous opinions holding that support awarded to minor children ceases upon the rendition of a judgment of divorce were in error and are overruled to the extent they are inconsistent herewith. White v. Morris, supra; Thorton v. Floyd, 229 La. 237, 85 So.2d 499 (1956); Bowsky v. Silverman, supra.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. The judgment of the trial court cannot be reinstated, however; a new decree must be entered fixing the effective date of the foreign divorce decree, terminating alimony pendente lite, cumulating child support and rendering judgment in accordance with this opinion. The case is remanded for this purpose.

REVERSED AND REMANDED.

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

WATSON, J., dissents.

MARCUS, Justice

(concurring in part and dissenting in part).

I agree with the majority’s disposition relative to child support; however, I consider that the alimony pendente lite automatically terminated on the effective date of the foreign divorce. Accordingly, I concur in part and dissent in part.


author: MARCUS and BLANCHE, JJ.,

text:
    Application of Sabinos A. MEGWA.
    No. 81-O-2639.
    Supreme Court of Louisiana.
    Oct. 6, 1981.
   Re: Sabinus A. Megwa, applying for Application for Admission to the Louisiana Bar, Parish of Orleans, Number Unknown.

Granted. Relator is ordered admitted to the Louisiana State Bar on October 9, 1981.

MARCUS and BLANCHE, JJ.,

dissent from the order, being of the opinion that relator should first be qualified as a “resident alien” as defined in the immigration statutes before being admitted to the Louisiana State Bar.


author: PER CURIAM.

text:
    STATE of Louisiana v. Calvin DUNNS.
    No. 81-KA-0527.
    Supreme Court of Louisiana.
    Oct. 8, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Kevin McNary, Tom Cowan, Asst. Dist. Attys., for plaintiff-appellee.
    Philip Johnson, George E. Escher of Kat-ner & Escher, New Orleans, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury on June 11, 1979, he was found guilty as charged. On June 18, 1979, the trial court sentenced him to forty (40) years’ imprisonment at hard labor. Defendant has now appealed his conviction and sentence to this Court, urging the four assignments of error filed below. We have reviewed the assignments as they relate to the jury’s verdict in the case and find they lack merit. Accordingly, defendant’s conviction is now affirmed. However, we agree with counsel that in imposing an apparently severe sentence, the trial court failed to comply with the sentencing guidelines in La.C.Cr.P. Art. 894.1. We therefore vacate defendant’s sentence and remand this case to the trial court. State v. Cox, 369 So.2d 118 (La.1979).

The trial court began the hearing on June 18, 1979 by denying counsel’s motion for a pre-sentence investigation. As a prelude to sentencing defendant, the judge then gave his views on the societal impact of the offense of armed robbery, “. . . • that every day that passes throughout this country, people are in arms about this. . .[a]rming themselves in their homes to the TV Although La.R.S. 14:64 prohibits the suspension of sentence and probation, the trial court ultimately concluded that if probation were available, defendant posed an undue risk of committing another crime as “[h]e has shown the proclivity to do so without a doubt.” At the same time, the trial court noted defendant’s youth and that “. . . a sentence approaching the maximum would be equivalent to taking away the rest of his life.” The forty-year sentence followed accordingly, a balance, in the court’s view, of defendant’s interests and the “.. . social responsibility for the legislature, the judiciary, somebody, by harsh sentence, or relatively not harsh, to try to put an end to this within the frame work of the law.”

Despite this effort to weigh defendant’s youth against the seriousness of his crime, we find the trial court’s reasons inadequate under La.C.Cr.P. Art. 894.1. In State v. Guiden, 399 So.2d 194, 200 (La.1981), this Court emphasized that “[w]hile the trial judge need not articulate every aggravating and mitgating circumstance presented in La.C.Cr.P. Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” The record left of sentencing should therefor indicate that the trial court considered not only the seriousness of the offense and the past record of defendant, but also defendant’s personal history (age, mental status, dependents, family ties, work record, mental, emotional and physical health) and his “. .. potential for rehabilitation.” State v. Molinet, 393 So.2d 721, 722 (La.1981); see also, State v. Jones, 398 So.2d 1040 (La.1981); State v. Jackson, 360 So.2d 842 (La.1978).

The trial court in this case was surely entitled to consider the seriousness of armed robbery in Louisiana, an offense “strongly condemned by our legislature.” State v. Douglas, 389 So.2d 1263, 1267 (La. 1980) [footnote omitted]. Nevertheless, we find no basis in the record for the trial court’s conclusion that defendant manifests a propensity for felonious behavior. Compare, State v. Douglas, supra. Although it appears from the trial record that defendant has a prior misdemeanor conviction for carrying a concealed weapon, he is a first felony offender. Moreover, whatever the trial court’s larger sociological concerns in sentencing, we cautioned in State v. Jackson, supra, 360 So.2d 843 that “[a]rticle 894.-1. . . requires that the sentence be individualized.” The record indicates that defendant is married and has a family to support, circumstances in his favor evidently not considered by the trial court. Cf., La.C. Cr.P. Art. 894.1(B)(11).

Accordingly, we agree with counsel, that the present record will not allow us to decide whether the sentence imposed in this case is excessive. Therefore, defendant’s conviction is affirmed, but his sentence is vacated and the case remanded to the trial court for resentencing under La.C.Cr.P. Art. 894.1 in accord with the views expressed herein.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

      . The ordering of a pre-sentence investigation lies within the discretion of the trial court under La.C.Cr.P. Art. 875, State v. Bell, 377 So.2d 275 (La.1979). We note, however, that such an investigation appears clearly desirable in cases where the sentencing range is extremely wide and the need to avoid arbitrary sentencing decisions is correspondingly greater.


text:
    COMMON CAUSE/LOUISIANA, et al. v. STATE of Louisiana, et al.
    Nos. 81-O-2544, 81-CA-2621.
    Supreme Court of Louisiana.
    Oct. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Asst. Atty. Gen., Camille F. Gravel, Jr., Alexandria, for defendants-appellants.
    David Price, Kathleen Stewart Richey, of Richey & Price, Baton Rouge, for plaintiffs-appellees.
   PER CURIAM.

Appeal dismissed and stay order recalled. The matter is not appealable to this court. The trial judge’s ruling on the exception of no cause of action is not a final judgment and does not determine the merits of the case in whole or in part. There is no allegation of fact showing that the interlocutory judgment will cause irreparable injury. Accordingly, the case is not one in which a law has been declared unconstitutional by a final judgment or by an interlocutory judgment that may cause irreparable injury. La.Const. art. V, § 5(D); La.C.C.P. art. 2083; Everett v. Goldman, 359 So.2d 1256 (La. 1978); Derouen v. Kolb, 397 So.2d 791 (La. 1981); Cf. Burmaster v. Gravity Drainage District No. 2, 366 So.2d 1381 (La. 1978).

The case is remanded for further proceedings.


text:
    Fannie GODWIN v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al.
    No. 81-C-0946.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Fannie Godwin, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. East Baton Rouge Parish. 403 So.2d 72.

Granted.


text:
    STATE of Louisiana v. John VANASSELBERG and August Vanasselberg.
    No. 81-K-2254.
    Supreme Court of Louisiana.
    Aug. 21, 1981.
   In re John Vanasselberg and August Va-nasselberg, applying for remedial writs and stay order. Parish of Grant.

Writ denied.


author: DIXON, C. J.,

text:
    STATE of Louisiana v. Willie PETERS.
    No. 81-K-1854.
    Supreme Court of Louisiana.
    Aug. 24, 1981.
   In re State of Louisiana, applying for supervisory writs. Parish of Orleans. No. 275-874, and 275-814.

Granted.

DIXON, C. J.,

would grant and order, summarily, that the grand jury testimony in question be submitted to the trial judge who should, at the appropriate time, determine whether he is entitled to it.


text:
    STATE of Louisiana v. Anthony BAGLEY.
    No. 81-K-2310.
    Supreme Court of Louisiana.
    Aug. 27, 1981.
   In re Anthony Bagley, applying for writs of certiorari, review, prohibition, mandamus, and a stay order. Parish of Tangipa-hoa. No. 45182.

Execution of sentence stayed until further orders of this Court, provided relator posts bail in an amount to be fixed by the trial court.


text:
    STATE of Louisiana v. William THOM, Sr.
    No. 81-K-2275.
    Supreme Court of Louisiana.
    Aug. 27, 1981.
   In re William Thom, Sr., applying for remedial writs. Parish of Jefferson. No. 80-884 G.

Granted. Trial judge ordered to fix bail pending appeal to permit defendant’s release only to obtain required medical treatment. Further ordered that defendant be returned to Jefferson Parish pending appeal. See Louisiana Code Criminal Procedure article 914.


author: DENNIS, J.,

text:
    STATE of Louisiana, ex rel. Mid SIMMONS v. Honorable L. H. COLTHARP, Jr., Judge, 36th Judicial District Court.
    No. 81-K-2302.
    Supreme Court of Louisiana.
    Aug. 28, 1981.
   In re Mid Simmons, applying for supervisory writs. Parish of Beauregard. No. CR-863-80.

Denied.

DENNIS, J.,

would grant relator an evi-dentiary hearing on whether relator is entitled to bail.

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


text:
    Daniel David ADAMS v. Vivian Carriere ADAMS.
    No. 81-C-2318.
    Supreme Court of Louisiana.
    Aug. 31, 1981.
   In re Daniel David Adams, applying for writ of certiorari. Parish of LaSalle. No. 17706.

Proceedings stayed until further orders of this Court.


text:
    STATE of Louisiana v. Johnny KOULATSIS.
    No. 81-K-2283.
    Supreme Court of Louisiana.
    Aug. 31, 1981.
   In re Johnny Koulatsis, applying for writ of certiorari and review. Parish of Orleans.

Granted. Relator is ordered released until and unless there is a finding of probable cause by a magistrate.


text:
    STATE of Louisiana v. Anthony BAGLEY.
    No. 81-K-2328.
    Supreme Court of Louisiana.
    Aug. 31, 1981.
   In re Anthony Bagley, applying for writs of certiorari, (review), prohibition and mandamus. Parish of Tangipahoa. No. 45182.

Granted. Bail is reduced to $1,000.


text:
    STATE of Louisiana v. T. C. SLAVEN.
    No. 81-K-2235.
    Supreme Court of Louisiana.
    Aug. 31, 1981.
   In re T. C. Slaven, applying for writs of certiorari, prohibition and mandamus. Parish of Washington. No. 35441.

Denied.


text:
    STATE of Louisiana v. Carey EDWARDS.
    No. 81-K-2324.
    Supreme Court of Louisiana.
    Aug. 31, 1981.
   In re Carey Edwards, applying for writs of certiorari, review, prohibition, mandamus. Parish of Jefferson. No. 81-2731.

Denied, on the showing made.


text:
    STATE of Louisiana v. Lorphy J. BOURQUE, Jr.
    No. 81-K-2269.
    Supreme Court of Louisiana.
    Aug. 31, 1981.
   In re Lorphy J. Bourque, Jr., applying for writ of review. Parish of Terrebonne. Nos. 103119 and . 103120.

Writ denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Lance S. BARTON.
    No. 81-K-2291.
    Supreme Court of Louisiana.
    Sept. 4, 1981.
   In re Lance S. Barton, applying for writ of review. Parish of Terrebonne. Nos. 101960, 101961 and 101962.

Granted. Bail reduced to $40,000.00.


text:
    STATE of Louisiana v. William THOM, Sr.
    No. 81-K-2394.
    Supreme Court of Louisiana.
    Sept. 4, 1981.
   In re William Thom, Sr., applying for writ of certiorari. Parish of Jefferson. No. 80-884 G.

Granted. Bail reduced to $250,000.


text:
    STATE of Louisiana v. Darrell JETT.
    No. 81-K-2378.
    Supreme Court of Louisiana.
    Sept. 4, 1981.
   In re Darrell Jett, applying for supervisory writs and stay order. Parish of Avo-yelles. No. 45414.

Writ denied.


text:
    The BANK OF NEW ORLEANS & TRUST COMPANY v. H.P.B., Jr. DEVELOPMENT CO., INC., et al.
    No. 81-C-2338.
    Supreme Court of Louisiana.
    Sept. 4, 1981.
   In re H.P.B., Jr., Development Co. and Carlos J. Marcello, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 12729.

Writ granted. The trial court is ordered to try the dilatory exception of prematurity and decide it in advance of the trial of the case on September 9, 1981. See CCP Art. 929.


text:
    In the Matter of Vernon P. THOMAS.
    No. 81-K-1858.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
   In re Vernon P. Thomas, applying for emergency writs and stay of sentence. Parish of Orleans. No. 276-267.

Writ denied and stay order recalled.


text:
    STATE of Louisiana v. James E. COPELAND.
    No. 81-K-2339.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
   In re James E. Copeland, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Tangipahoa. No. 44713.

Construing the trial judge’s order of September 8, 1981 as a recusal of himself from the case, he is hereby recused and the order for defense counsel to appear on September 9, 1981 is vacated.


text:
    STATE of Louisiana v. Ben SMITH and Tyrone Smith.
    No. 81-K-2404.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
   In re Ben Smith and Tyrone Smith, applying for remedial writs and stay order. Parish of Orleans. No. 281-123.

Denied.

DIXON, C. J.,

concurs in the denial, but if the issue is preserved for review on appeal, it will be before the Court for consideration. This denial, in itself, is not an approval of the selection of a “hanging jury” in a case that is not a genuine death case.

CALOGERO and DENNIS, JJ., would [grant the writ] and bring it before the Court.


text:
    Raymond Carl HORN, et al. v. Virginia May SHORT.
    No. 81-C-2438.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Raymond Carl Horn, applying for writs of certiorari, review, and stay order. Parish of Orleans. No. 81 — 13855.

Denied.


text:
    STATE of Louisiana v. Renee MORRIS.
    No. 81-K-2444.
    Supreme Court of Louisiana.
    Sept. 14, 1981.
   In re Renee Morris, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 9-77-85.

Denied.


text:
    STATE of Louisiana v. Bennie G. SMITH.
    No. 81-K-2449.
    Supreme Court of Louisiana.
    Sept. 15, 1981.
   In re Bennie G. Smith, applying for writs of certiorari, review, prohibition, and mandamus. Parish of Livingston.

Writ denied.


text:
    STATE of Louisiana v. Bennett L. ROSS.
    No. 81-K-2448.
    Supreme Court of Louisiana.
    Sept. 15, 1981.
   In re Bennett L. Ross, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 6-81-97.

Denied in part; granted in part. Trial judge ordered to conduct preliminary examination within 48 hours; otherwise, defendant should be ordered released. Otherwise, the writ is denied.

DIXON, C.J., CALOGERO, and DENNIS JJ., would grant and order the immediate release of relator, who is in jail after a finding of no probable cause by the court.


text:
    STATE of Louisiana v. Edward GATTO.
    No. 81-K-2497.
    Supreme Court of Louisiana.
    Sept. 17, 1981.
   In re Edward Gatto, applying for supervisory writs. Parish of Jefferson. No. 813353.

Granted. Bond reduced to the sum of $2,000.00.


text:
    Dorothy Robinson HUFFT v. Arthur J. MORRIS, M.D., et al.
    No. 81-C-2079.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Arthur J. Morris, M.D., et al. applying for writ of review. Parish of Orleans. No. 12640.

Denied.


text:
    STATE of Louisiana v. Samuel COREY.
    No. 81-K-2091.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Samuel Corey, applying for supervisory and remedial writs of certiorari and review. Parish of Orleans. No. 245-715.

Denied.


text:
    Edward BERRY v. ALLSTATE INSURANCE COMPANY.
    No. 81-C-2105.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Allstate Insurance Company, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 247— 305.

Denied.

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


text:
    STATE of Louisiana ex rel. David Wayne STAFFORD v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2153.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re David Wayne Stafford, applying for remedial writs. Parish of Rapides. No. 162360.

Denied.


text:
    STATE of Louisiana ex rel. Lionel FIELDS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2191.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Lionel Fields, applying for writ of habeas corpus. Parish of Orleans. No. 254-588.

Denied. Relator must first apply to District Court.


text:
    STATE of Louisiana ex rel. Clarence WALKER v. Charles E. McCONNELL and Clerk of Court, Parish of Webster.
    No. 81-KH-2214.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Clarence Walker, applying for writ of mandamus, Parish of Webster. No. 46674.

Denied.


text:
    STATE of Louisiana ex rel. Edward R. WYNN v. STATE of Louisiana.
    No. 81-KH-2237.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Edward R. Wynn, applying for remedial writ. Parish of Orleans. No. 272-897.

Writ denied.


text:
    STATE of Louisiana ex rel. Bobby R. HALL v. STATE of Louisiana.
    No. 81-KH-2332.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Bobby R. Hall, applying for remedial writs. Parish of Caddo. No. 110856.

Writ denied.


text:
    STATE of Louisiana ex rel. Ken SEAVEY (alias) Randy Tucker v. Honorable Frank MARULLO, Judge, Honorable Edwin Lombard, Clerk.
    No. 81-KH-1553.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Ken Seavey, (alias) Randy Tucker, applying for remedial writs. Parish of Orleans. No. 269-183.

Writ denied.


text:
    STATE of Louisiana ex rel. Reuben TACKNO and Milton Armstead v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1582.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Reuben Tackno and Milton Arm-stead, applying for remedial writs. Parish of Orleans. No. 249-185.

Denied.


text:
    STATE of Louisiana ex rel. Tyronne J. FORREST v. STATE of Louisiana.
    No. 81-KH-1600.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Tyronne J. Forrest, applying for remedial writ. Parish of Orleans. No. 166-206.

Denied. Relator must first file in District Court.


text:
    STATE of Louisiana ex rel. David GREEN v. STATE of Louisiana, Honorable Harry F. Connick.
    No. 81-KH-2074.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re David Green, applying for supervisory writ and remedial writ. Parish of Orleans. No. M-109383.

Writ denied.


text:
    STATE of Louisiana ex rel. Osby BRYANT, Jr. v. CADDO INDIGENT DEFENDER PROGRAM.
    No. 81-KH-1479.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Osby Bryant, Jr., applying for writ of remedial writ. Parish of Caddo. No. 65436.

Denied.


text:
    STATE of Louisiana ex rel. George WILLIAMS v. Honorable Frank MARULLO, Criminal District Court, Orleans Parish State of Louisiana.
    No. 81-KH-1532.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re George Williams, applying for writ of mandamus. Parish of Orleans. No. 244-214.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Sterling D. LAVIGNE v. ORLEANS INDIGENT DEFENDER PROGRAM; Court Reporter.
    No. 81-KH-1552.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Sterling D. LaVigne, applying for remedial writ. Parish of Orleans. No. 275-205.

Writ denied.


text:
    STATE of Louisiana ex rel. Marcel LETENDRE v. Municipal Court Judge “Eddie L. SAPIR”.
    No. 81-KH-2279.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Marcel Letendre, applying for writ of habeas corpus. Parish of Orleans. Number Unknown.

Writ granted. The matter is transferred to Division A, Municipal Court, City of New Orleans for action.


text:
    COMMON CAUSE/LOUISIANA, et al. v. STATE of Louisiana, et al.
    No. 81-O-2544.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re State of Louisiana, through Attorney General, William J. Guste, Jr., applying for request for emergency stay pending appeal. Parish of East Baton Rouge. No. 248263.

The judgment of the District Court is hereby stayed pending appeal.


text:
    STATE of Louisiana ex rel. Aristle ALBERT v. The COURT REPORTER/SECTION “I”, ORLEANS CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-1974.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Aristle Albert, applying for writ of mandamus. Parish of Orleans. No. 255-681.

Granted. Trial judge is ordered to furnish relator a Boykin transcript. The writ is otherwise denied.


text:
    In re Jimmy GRIMES, Leoncio Ponce Aquino, Ava Jones, et al.
    No. 81-O-2443.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Jimmy Grimes, et al., applying for order promulgating new rules governing the selection of persons appointed to serve on the committee on bar admissions and its grading of the Louisiana State Bar Examination and Certification Procedures. Parish of Orleans.

The application is referred to the Bar Association Committee on Revision of Rules on Admissions. Otherwise, denied.


text:
    STATE of Louisiana ex rel. Donald Joe FORD v. Honorable Frank SHEA, Judge, Criminal District Court, Section G.
    No. 81-KH-0482.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Donald Joe Ford, applying for writ of mandamus. Parish of Orleans. No. 270-581.

Denied. Moot.


text:
    STATE of Louisiana ex rel. James WILLIAMS v. COURT REPORTER, CRIMINAL DISTRICT COURT, SECTION “F”, PARISH OF ORLEANS.
    No. 81-KH-1321.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re James Williams, applying for writ of mandamus. Parish of Orleans. Nos. 244-954 and 246-514.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Johnny BANKS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1487.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Johnny Banks, applying for supervisory remedial writs. Parish of East Baton Rouge. No. 6-79-137.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Gregory ROBERTSON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-1780.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Gregory Robertson, applying for writs of certiorari, habeas corpus and mandamus. Parish of Jefferson. No. 72-1109.

Granted. Evidentiary hearing ordered to determine voluntariness of 1973 guilty plea.


text:
    STATE of Louisiana v. Barry P. WALKER.
    No. 81-K-0814.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Barry P. Walker, applying for writs of certiorari (review), prohibition, and mandamus. Parish of Livingston. No. 1962J.

Granted. Reversed. No evidence of being in destitute or necessitous circumstances.


text:
    STATE of Louisiana ex rel. James COURNELIUS v. CLERK OF COURT & COURT REPORTER, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION “I”, STATE OF LOUISIANA.
    No. 81-KH-1162.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re James Cournelius, applying for remedial writs. Parish of Orleans. No. 250-813.

Writ granted. Relator is to be furnished with another copy of Boykin transcript.


text:
    STATE of Louisiana v. Vernon WAGNER.
    No. 81-K-1886.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Vernon Wagner, applying for writ of certiorari, and a stay order. Parish of Orleans. No. 280-099.

Granted.


text:
    STATE of Louisiana ex rel. Oliver FRANCIS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1973.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Oliver Francis, applying for remedial writs. Parish of Orleans. No. 260-679.

Granted. Evidentiary hearing ordered.


text:
    Kenneth H. LAVALLAIS v. DAIRYLAND INSURANCE COMPANY.
    No. 81-C-2009.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Kenneth H. Lavabais, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. No. 8152.

Granted. The ruling of the Court of Appeal to the effect that the car could not be a total loss because the cost of repair did not exceed its stipulated value is reversed, and the case is remanded to the Court of Appeal to fix the damages for the car in an amount which will compensate for the damages as nearly as possible on the record before it.


text:
    Beverly Ann Samuelson Katz, Wife of Norman Edward KATZ v. Norman Edward KATZ.
    No. 81-C-2011.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Beverly Ann Samuelson Katz, wife of Norman Edward Katz, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12642.

Granted.


text:
    STATE of Louisiana v. James MOSLEY.
    No. 81-K-2025.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 282-124, Section C.

Writ granted.


text:
    STATE of Louisiana ex rel. Robert J. ROBERSON v. Warden DONNELLY.
    No. 81-KH-2072.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Robert J. Roberson, applying for writ of mandamus. Parish of East Baton Rouge. No. 5-80-52.

Granted. Boykin transcript ordered furnished.


text:
    STATE of Louisiana ex rel. Clarence S. STRONG v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1955.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Clarence S. Strong, applying for writ of habeas corpus. Parish of St. Bernard.

Writ denied.


text:
    STATE of Louisiana ex rel. Danny WELCH v. STATE of Louisiana, Through Bernard J. BAGERT, Sr., Judge, Criminal District Court, Parish of Orleans.
    No. 81-KH-2003.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Danny Welch, applying for supervisory writ. Parish of Orleans. No. 257-211.

Writ denied.


text:
    STATE of Louisiana ex rel. Bernell THOMPSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2005.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Bernell Thompson, applying for remedial writs. Parish of St. Bernard. No. 34-579.

Writ denied.


text:
    STATE of Louisiana ex rel. Johnny LAWRENCE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2020.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Johnny Lawrence, applying for writs of certiorari and review. Parish of Concordia. No. 77-2316.

Writ denied.


text:
    STATE of Louisiana v. Sidney Paul DUFRENE.
    No. 81-K-2027.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Sidney Paul Dufrene, applying for writs of certiorari, prohibition and mandamus. Parish of Terrebonne. No. 88640.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph A. BRADBERRY v. Honorable Gayle HAMILTON, Judge, Caddo Parish.
    No. 81-KH-2043.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Joseph A. Bradberry, applying for writ of mandamus. Parish of Caddo. No. 65214.

Trial judge ordered to furnish relator a copy of Boykin transcript of January 11, 1978 (simple escape); otherwise, denied.


text:
    STATE of Louisiana v. Anthony H. CHESTER.
    No. 81-K-2046.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Anthony H. Chester, applying for writs of certiorari, prohibition and mandamus. Parish of Sabine. No. 28817.

Writ denied.


text:
    STATE of Louisiana v. Lawrence Bob GREEN.
    No. 81-K-2047.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Lawrence Bob Green, applying for writ of certiorari on writ of habeas corpus. Parish of Calcasieu. No. 3041-81.

Denied.


text:
    STATE of Louisiana ex rel. Manuel DRAYDEN v. STATE of Louisiana.
    No. 81-KH-1608.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Manuel Drayden, applying for remedial writ. Parish of Caddo. No. 108-057.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert G. ROCKY v. CLERK OF COURT, SUPREME COURT OF LOUISIANA.
    No. 81-KH-1624.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Robert G. Rocky, applying for remedial writs. Parish of Orleans. No. 66110.

Writ denied.


text:
    STATE of Louisiana ex rel. Ricky GRAY v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1627.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Ricky Gray, applying for writs of certiorari, or mandamus. Parish of Lincoln. No. 25425.

Denied.


text:
    CITY OF MONROE v. Albert Nation DAY.
    No. 81-K-1765.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Albert Nation Day, applying for writ of certiorari. Parish of Ouachita. No. 304.

Denied, on showing made.


text:
    STATE of Louisiana v. Ronald D. EDWARDS.
    No. 81-K(A)-1826.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Ronald D. Edwards, applying for remedial writs. Parish of Jefferson. No. 79-510.

Denied.


text:
    STATE of Louisiana ex rel. Albert DAWSON v. STATE of Louisiana.
    No. 81-KH-1895.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Albert Dawson, applying for writ of mandamus. Parish of Evangeline. No. 14106.

Denied.


text:
    STATE of Louisiana ex rel. Charles K. WALLACE v. STATE of Louisiana.
    No. 81-KH-1913.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Charles K. Wallace, applying for writs of certiorari, review, mandamus and habeas corpus. Parish of St. Bernard. No. 40-582.

Writ denied.

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


text:
    James M. THOMPSON and Ruby Nell Davis Thompson v. Wilburn R. PARDUE and Sallie Mae Guss Pardue.
    No. 81-C-1926.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re James M. Thompson, et ux, applying for writs of certiorari and review, to the Court of Appeal, Second Circuit. Parish of Jackson. No. 14557.

Writ denied. The result is correct.


text:
    STATE of Louisiana ex rel. Alex BRANT v. COURT REPORTER, SECTION “B”, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-1930.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Alex Brant, applying for writ of mandamus. Parish of Orleans. No. 260-447.

Denied. Moot.


text:
    STATE of Louisiana ex rel. David STAFFORD v. STATE of Louisiana.
    No. 81-KH-1934.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re David Stafford, applying for remedial writs. Parish of Rapides. No. 162— 360.

Writ denied.


text:
    STATE of Louisiana ex rel. Walter CULBERTH, Jr. v. Honorable Oliver P. SCHULINGKAMP, Criminal District Court, Section “F”.
    No. 81-KH-1937.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Walter Culberth, Jr., applying for writ of mandamus. Parish of Orleans. No. 267-436F.

Denied.


text:
    STATE of Louisiana v. Joseph JONES.
    No. 81-K-1944.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Joseph Jones, applying for writs of certiorari, mandamus and review. Parish of East Baton Rouge. No. 1-81-876.

Denied.


text:
    STATE of Louisiana ex rel. Anthony SCOTT v. STATE of Louisiana.
    No. 81-KH-0903.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Anthony Scott, applying for writs of mandamus or prohibition. Parish of Orleans. No. 256-843.

Denied. Moot.


text:
    STATE of Louisiana ex rel. John FULFORD v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1896.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re John 'Fulford, applying for writs of certiorari and mandamus. Parish of East Baton Rouge. No. 239867.

Granted. The trial court is ordered to conduct an evidentiary hearing.


text:
    STATE of Louisiana v. John THOMAS.
    No. 81-K-2595.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re John Thomas, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Orleans. No. 284-066.

Denied. Adequate remedy by appeal in the event of conviction.


text:
    UNITED STATES FIDELITY & GUARANTY COMPANY v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-2125.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re United States Fidelity & Guaranty Company, applying for writ of certiorari, or review to the Third Circuit, Court of Appeal. Parish of Sabine. 400 So.2d 287.

Denied.

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


text:
    Garrison MOREAU v. Nancy Moreau MOREAU.
    No. 81-C-2104.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Nancy Moreau Moreau, applying for writ of review, to the Third Circuit, Court of Appeal. Parish of Rapides. 400 So.2d 294.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    Mary Brupbacher, Wife of/and Brian BARKER v. NEW ORLEANS CITY PARK IMPROVEMENT ASSOCIATION.
    No. 81-C-2102.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re New Orleans City Park Improvement Association, applying for writs of cer-tiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 400 So.2d 237.

Denied.


text:
    Gates W. CARLISLE, Jr. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-2088.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Gates W. Carlisle, Jr., applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Sabine. 400 So.2d 284.

Denied.

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


text:
    James Stanley BEESON, Jr., James Stanley Beeson, III and Lorraine Faye Beeson Dove v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-2065.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re James Stanley Beeson, Jr., James Stanley Beeson, III, and Lorraine Faye Beeson Dove, applying for writ of certiora-ri, or review. Parish of Sabine. 400 So.2d 278.

Denied.

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


text:
    SUCCESSION OF Evelene V. Hasse DUGAS. Anthony Donald HASSE, Sr., et al. v. Dalferes F. ROBICHEAUX, Jr., et ux.
    No. 81-C-2048.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Anthony Donald Hasse, Sr., et al., applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 400 So.2d 333.

Denied.

LEMMON, J., recused.


text:
    Aaron JOUBERT, et al. v. TEXAS INDUSTRIES, et al.
    No. 81-C-2029.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Sherry Joubert, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Rapides. 401 So.2d 571.

Denied.


text:
    George W. CROOKS v. DEPARTMENT OF PUBLIC SAFETY.
    No. 81-C-2024.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re George W. Crooks, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. 401 So.2d 638.

Denied.


text:
    GUY SCROGGINS, INC. v. EMERALD EXPLORATION, et al.
    No. 81-C-2007.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Guy Scroggins, Inc., applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of St. Martin. 401 So.2d 680.

Writ denied.


text:
    Chassie L. MEDIOUS v. TRAPMAR, INC. and Travelers Insurance Company.
    No. 81-C-2077.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Trapmar, Inc. et al., applying for writ of certiorari and review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 402 So.2d 735.

Denied.

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

LEMMON, J., would grant as to the issue of penalties and attorney fees.


text:
    LOUISIANA BAR ASSOCIATION v. Gilbert L. DOZIER.
    No. 81-B-1773.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Report of the Committee on Professional Responsibility Article XV, Paragraph 8, Section 8(2), et" seq.

Suspension under Article 15, Section 8(4) declined. The matter is referred back to the Committee for further proceedings.


text:
    Patricia McCarthy, Wife of Neal PENDLETON, Jacqulin Ann Delaune, Wife of Gerald Delaune, Virginia Fremaux, Wife of L. C. Soileau, III, Rose Mary Fremaux, Wife of Robert Schlicher, Jr. and Edward C. Fremaux v. SHELL OIL COMPANY.
    No. 81-C-1741.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Shell Oil Company, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 399 So.2d 1276.

Writ granted.


text:
    CARGILL INCORPORATED v. The CEMENTATION COMPANY OF AMERICA, INC., et al.
    No. 81-C-1943.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Midland Insurance Company, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of St. Mary. 402 So.2d 213.

Denied.


text:
    Lois B. OSTROLENK v. THE LOUISE S. McGEHEE SCHOOL.
    No. 81-C-2100.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Lois B. Ostrolenk, applying for writ of certiorari and/or review, to the Fourth Circuit, Court of Appeal. Parish of Orleans. 402 So.2d 237.

Denied.

WATSON, J., would grant the writ.


text:
    RELIANCE INSURANCE COMPANY v. LOUISIANA DEPARTMENT OF HIGHWAYS. Jana P. Usry, Widow of David P. USRY v. LOUISIANA DEPARTMENT OF HIGHWAYS.
    No. 81-C-2092.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Reliance Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 402 So.2d 240.

Writ denied.

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


text:
    Autherine Thurman, Wife of/and Quincy NEWELL v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 81-C-2060.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re New Orleans Public Service, Inc., applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 79-994, Section D.

Denied.


text:
    Jana P. USRY, Widow of David P. Usry v. LOUISIANA DEPARTMENT OF HIGHWAYS.
    No. 81-C-2055.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Reconsideration Denied Oct. 9, 1981.
   In re Jana P. Usry, Widow of David P. Usry, applying for writ of certiorari or review, to the Fourth Circuit, Court of Appeal. Parish of Jefferson. 402 So.2d 240.

Writ denied.

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


text:
    Thomas C. WYRE v. Thomas LOCKWOOD, Administrator of the Office of Employment Security; and, Custom Craft Mobile Homes.
    No. 81-C-2026.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Thomas C. Wyre, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of St. Helena. 402 So.2d 164.

Denied.


text:
    Joseph GUILLORY v. STATE POLICE RETIREMENT BOARD.
    No. 81-C-2016.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   Denied.


text:
    Charles Joseph BERGERON v. ILLINOIS CENTRAL GULF RAILROAD COMPANY.
    No. 81-C-2014.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Illinois Central Gulf Railroad Company and Walter M. Carlton, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 402 So.2d 184.

Writ denied.


text:
    BILL NOLAN LIVESTOCK, INC. v. Joseph SIMPSON.
    No. 81-C-2001.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Bill Nolan Livestock, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 402 So.2d 214.

Denied.


text:
    COPO FEDERAL CREDIT UNION v. Wanda F. HOLDEN, Co-Maker, Melvin Holden, and Leo J. Berggreen, Co-Maker.
    No. 81-C-1977.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Wanda F. Holden, Melvin Holden and Leo J. Berggreen, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. East Baton Rouge Parish. 402 So.2d 206.

Denied.


text:
    Nancy Lonardo REICHENPHADER v. ALLSTATE INSURANCE COMPANY.
    No. 81-C-2066.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Nancy Lonardo Reichenphader, applying for writ of certiorari and review, to the Fourth Circuit, Court of Appeal. Parish of Jefferson. 402 So.2d 311.

Granted.


text:
    Henry COLLINS, et ux. v. CAPITAL VALVE AND FITTING, INC., et al.
    No. 81-C-1976.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Henry Collins and Clara S. Collins, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 402 So.2d 224.

Granted.


text:
    Norris Dale JACKSON v. TRI-STATE ELEVATOR COMPANY, INC., et al.
    No. 81-C-1999.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Norris Dale Jackson, applying for writ of certiorari, or review. Parish of Catahoula. No. 12487.

Writ denied.

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


text:
    J. B. BOYDSTUN, Jr. v. Charles “Pat” JOHNSON.
    No. 81-C-2000.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Charles “Pat” Johnson, applying for writs of certiorari, and review, to the Court of Appeal, Third. Circuit. Parish of Natchi-toches. 401 So.2d 629.

Denied.


text:
    BUDD CONSTRUCTION COMPANY, INC., et al. v. CITY OF ALEXANDRIA, et al.
    No. 81-C-1954.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re J. W. Slocum, d/b/a Slocum Construction Company, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Rapides. 401 So.2d 1070.

Denied.

LEMMON, J., would grant the writ.


text:
    CARGILL, INCORPORATED v. The CEMENTATION COMPANY OF AMERICA, INC., et al.
    No. 81-C-1909.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re The Cementation Company of America, Inc., Royal Insurance Company and Canadian Indemnity Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 402 So.2d 213.

Denied.


text:
    CARGILL, INCORPORATED v. The CEMENTATION COMPANY OF AMERICA, INC., et al.
    No. 81-C-1953.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Commerce and Industry Insurance Company of Canada and CNA Assurance Company, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 402 So.2d 213.

Denied.


text:
    CARGILL, INCORPORATED v. The CEMENTATION COMPANY OF AMERICA, INC., et al.
    No. 81-C-1987,.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re The Cementation Company of America, Inc., et al., applying for writ of certiorari or review, to the First Circuit Court of Appeal. Parish of St. Mary. 402 So.2d 213.

Denied.


text:
    STATE of Louisiana, ex rel. Edward DUNCAN v. STATE of Louisiana.
    No. 81-KH-2534.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Edward Duncan, applying for writ of habeas corpus. Parish of DeSoto.

Denied.


text:
    Rena VINCENT v. Jerome J. ROMAGOSA, et al.
    No. 81-C-2598.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Rena Vincent, applying for writs of certiorari, mandamus and prohibition and/or review and a stay order. Parish of Lafayette. No. 792015.

Denied.


text:
    STATE of Louisiana, ex rel. Glenn ROCHE v. STATE of Louisiana.
    No. 81-KH-2457.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Glenn Roche, applying for writ of mandamus. Parish of Lafayette. No. 42319.

Writ denied. The Court considered relator’s post-conviction claim on the merits and denied relief on June 5, 1981, after reviewing the transcript of the evidentiary hearing supplied by the district court. There is no basis for granting the relief sought by relator; return to the district court.


text:
    STATE of Louisiana ex rel. Johnny Lee SULLIVAN v. Robert J. ZIBILISH, Appointed Counsel O.I.D.P. Criminal Courts.
    No. 81-KH-2361.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Johnny Lee Sullivan, applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Larry AARON.
    No. 81-K-2602.
    Supreme Court of Louisiana.
    Sept. 29, 1981.
   In re Larry Aaron, applying for writs of certiorari, prohibition, mandamus, and for a stay order. Parish of Grant.

Granted in part and denied in part. Bond is ordered reduced to $2500.00; otherwise denied.


text:
    STATE of Louisiana v. Leroy JULIAN.
    No. 81-K-2620.
    Supreme Court of Louisiana.
    Sept. 30, 1981.
   In re Leroy Julian, applying for writs of review. Parish of Orleans. No. 276-692.

Denied.


text:
    Hazel Patricia CARROLL, as Tutrix, Etc. v. NEWTRON, INC. v. CONOCO, INC.
    No. 81-C-2623.
    Supreme Court of Louisiana.
    Sept. 30, 1981.
   In re Conoco, Inc., applying for writ of certiorari and stay order. Parish of Calca-sieu. No. 81-3519.

Denied.


author: SCHOTT, Judge.

text:
    Gary E. PICOU v. Salvatore FERRARA et al.
    No. 11991.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 1981.
    On Rehearing Sept. 10, 1981.
    Paul A. Bonin, New Orleans, for plaintiff on motion to dismiss.
    John G. Gomila, Jr., Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for third-party defendant-appellant (Lumbermen’s Mut. Cas. Co.).
    Dennis M. Ferrara, New Orleans, Reid K. Hebert, A. Lane Plauche, Lake Charles, for defendants-appellants.
    Before REDMANN, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

This is before us on a motion by plaintiff, Gary E. Picou, to dismiss the appeal of Lumbermen’s Mutual Casualty Company, third-party defendant, from a summary judgment in favor of defendant and third-party plaintiff, Ferrara, Inc., decreeing that insurance coverage was afforded to Ferrara by Lumbermen’s for the alleged liability of Ferrara to Picou. This motion for summary judgment was heard at the same time as a motion for summary judgment by Lumbermen’s against Ferrara in which a declaration was sought that there was no insurance coverage afforded by Lumbermen’s to Ferrara. The issue is whether the judgment was a final judgment or simply an interlocutory judgment from which no appeal lies.

The situation is similar to that in Smith v. Hanover Ins. Co., 363 So.2d 719 (La.App. 2nd Cir. 1978) where there was an appeal by the defendant insurance company from a partial judgment in favor of the plaintiff decreeing that uninsured motorist coverage existed under the facts of the case, and leaving for determination at, trial the issues of fault and damages. The court made the following observation:

“It is evident that the isolated issue of insurance coverage is not ripe for merit-consideration on appeal at this time. Thus, the case should go back to the trial court because either the partial judgment is not appealable or the partial judgment is inappropriate procedurally. Defendant’s supplemental brief zeros in on the problem created by this ‘piecemeal’ judgment and appeal. Defendant takes the position that the judgment is appealable and the appellate court has jurisdiction, but the judgment rendered is not authorized by procedural law and, therefore, should be set aside. We believe this approach represents the correct resolution of the problem.”

The court reasoned that C.C.P. Art. 966 authorizes a party to move for summary judgment in his favor “for all or part of the relief for which he has prayed,” and that the partial summary judgment which simply granted recognition of insurance coverage did not grant or deny any of the relief claimed by the moving party. The court continued:

“Plaintiff’s use of the motion for summary judgment to obtain a ruling on his cause of action without seeking any part of the relief he claims is an unauthorized use of a procedural vehicle and illustrates the problem of piecemeal adjudication and appeal which can result from the misuse of provisions intended to streamline our civil procedure. The judgment must be set aside and the case remanded, without merit-consideration of the coverage issue.”

C.C.P. Art. 1841 provides that a judgment which does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment and such a judgment is not appealable under Art. 2083 unless it causes irreparable injury. Because we are not convinced that this ingredient of irreparable injury exists simply because the trial court has adjudicated the question of coverage in advance of the trial we do not consider the judgment ap-pealable.

Had Ferrara, Inc. not filed its motion for summary judgment asking for a decree of coverage this matter would not be presently before the court. Lumbermen’s motion for summary judgment seeking a decree that coverage was excluded was denied by the trial court and no appeal lies from the court’s refusal to render that summary judgment, C.C.P. Art. 968. It would be inconsistent to maintain an appeal from Ferrara’s summary judgment recognizing coverage when the no appeal lies from the trial court’s refusal to grant Lumbermen’s motion seeking a decree that coverage is excluded.

Accordingly, the motion to dismiss the appeal is granted.

MOTION TO DISMISS GRANTED.

ON REHEARING AND APPLICATION FOR SUPERVISORY WRITS.

This matter came to the court on an appeal by third party defendant, Lumbermen’s Mutual Casualty Company from the granting of a motion for summary judgment in favor of third party plaintiff, Ferrara, Inc. The court found that Lumbermen’s extended insurance coverage to Ferrara, Inc. for the alleged negligence of Fer-rara, Inc. in sending its employee on an errand in his automobile “when it knew or should have known of his physical infirmities and inabilities in safely operating a vehicle on the public streets.” The issue is whether Lumbermen’s general liability policy afforded coverage to Ferrara, Inc. for the alleged negligence notwithstanding an exclusion against liability arising out of the ownership, maintenance, operation or use of an automobile.

Plaintiff filed suit for damages he sustained when his motorcycle was struck by an automobile driven by Salvatore Ferrara. He amended his petition to join Ferrara, Inc. as a defendant on theories of vicarious liability and Ferrara, Inc.’s negligence in permitting Salvatore to run an errand in his automobile in the company’s behalf. Fer-rara, Inc. filed a third party demand against Lumbermen’s alleging insurance coverage and seeking enforcement of the contract of insurance between them, including Ferrara, Inc.’s cost of defending the suit.

Ferrara, Inc. filed a motion for summary judgment seeking declaration that there was insurance coverage, and Lumbermen’s filed a cross motion seeking a dismissal of the third party demand on the basis of the policy’s exclusion. The trial judge denied Lumbermen’s motion and granted Ferrara, Inc.’s motion only with respect to the claim asserted for “negligent entrustment” of the vehicle. He held that the claim based on vicarious liability was clearly excluded from coverage. From that judgment Lumbermen’s appealed.

Plaintiff moved to dismiss the appeal on the basis that the summary judgment would not dispose of the litigation and would have no effect on the pending trial in the district court since the matter would proceed to trial regardless of the outcome of the appeal. In our original opinion we granted the motion to dismiss; however, we granted a rehearing from this judgment on Lumbermen’s application and now treat the appeal as an application for supervisory writs, considering Herlitz Constr. Co. v. Hotel Investors of New Iberia, 396 So.2d 878 (La.1981).

In LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978) the court considered a tort claim based on the negligence of a deputy sheriff in failing to secure properly the intersection through which a funeral cortege was passing. The deputy had been assigned to escort the procession and the accident happened as the victims were in the procession going against a red light at an intersectionV- Western World Insurance Company’s professional liability policy excluded bodily injury arising out of the ownership, operation or use of an automobile. Noting that such an exclusion clause does not apply where the insured’s act of negligence is independent of, even though concurring with, the use of an automobile the court reasoned that it was not the deputy’s use of an automobile that lead to his liability, but rather, it was his failure to supersede the automatic traffic signal and warn traffic approaching the highway that a funeral procession was going to pass. The court continued that the basis for the deputy’s liability was his negligent failure to perform his law enforcement duty, not his negligent use of a vehicle.

In Connor v. Farmer, 382 So.2d 1069 (La.App. 4th Cir. 1980) this court had to construe an exclusion in an insurance policy which made the insurance inapplicable to injury or damage “arising out of the discharge .... of ... . toxic chemicals, liquids or gases, waste materials or other irritants . . . . ” The court held that the exclusion did not apply because the executive offi-eer’s liability arose out of his failure to provide appropriate protective apparel when sending workmen into an area known to contain irritants and not from the discharge of sandblasting matter per se. The instant case is analogous in that plaintiff’s suit against Ferrara, Inc. did not arise out of the use of the automobile but out of Ferrara, Inc.’s negligence in permitting Ferrara to operate an automobile on its behalf when Ferrara was incompetent to do so.

Also supportive of this position is Frazier v. State Farm Mut. Auto. Ins. Co., 347 So.2d 1275 (La.App. 1st Cir. 1977) in which suit was brought by the mother of a small child who was run over by the automobile driven by the daughter of a couple who were baby sitting for the child. Their home owner’s insurer sought to avoid coverage based on an exclusion against bodily injury arising out of the ownership, maintenance, operation or use of an automobile. However, the court concluded their negligence consisted in not properly attending to the child while baby sitting, not in the negligent operation of the motor vehicle by their daughter.

In the final analysis, Lumbermen’s problem is with the following proposition from Benton Casing Service, Inc. v. Avemco, Ins., 379 So.2d 225 (La.1979):

“Briefly stated, the law is to the effect that the insurer is required to clearly express exclusions to its insuring obligations and that any doubt or ambiguity is to be resolved against the insurer ... . ”

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.