text:
    Dwight R. WALTON v. WILLIAM WOLF BAKING COMPANY, INC., Paul M. Teeney and Liberty Mutual Insurance Company.
    No. 81-C-1209.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      John L. Lanier, of Pugh, Lanier & Pugh, Thibodaux, for defendant-applicant.
    Robert J. Prejeant, of Watkins, Walker & Prejeant, Houma, for plaintiff-respondent.
   WATSON, Justice.

The only issue is whether the quantum of damages awarded by the trial court is so excessive that it represents an abuse of discretion. LSA-C.C. art. 1934(3).

Plaintiff, Dwight R. Walton, received a judgment for $317,573.60. In reasons for judgment, the trial court stated that plaintiff will never be able to engage in gainful employment and would receive $75,000 for pain and suffering, $5,000 for future psychiatric and orthopaedic care, $56,084 for loss of past wages, and $164,917.67 for loss of future wages. Walton was injured in an automobile collision with a truck driven by Paul M. Teeney, owned by William Wolf Baking Company, Inc., and insured by Liberty Mutual Insurance Company. Liability of these three defendants was not an issue at trial.

The Court of Appeal affirmed the judgment. 396 So.2d 962 (La.App. 1 Cir. 1981). The Court of Appeal concluded that the trial court was not clearly wrong and that the award did not represent an abuse of discretion. A writ was granted to review the judgment. 400 So.2d 1379 (La., 1981).

Defendants contend that the conclusion that plaintiff is completely disabled is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978). Further, defendants argue that the award for past lost wages is excessive; that there was no basis to award future medical expenses; and that $75,000 for pain and suffering and $164,917.67 for loss of future wages represent a clear abuse of discretion.

Walton worked as a driller for Delta Drilling Company and earned slightly over $2,000 a month in 1977. In 1976, his wages were $21,226.00. He has a sixth grade education and was fifty-four years old when the accident occurred. In the two years between the accident and trial, Walton incurred medical expenses of $16,571.93. Walton’s initial injuries consisted of a moderate to severe cervical strain, moderate to severe cervical spondylosis, and degenerative cervical changes. However, he developed a depressive reaction secondary to a pain syndrome. According to the trial court, fourteen doctors regard Walton’s complaints as unique, but sincere. The medical findings were summarized as follows:

“. .. cervical strain superimposed upon cervical osteoarthritis; increased deep tendon reflexes of lower extremities; lack of normal lodortic curvature of the spine with formaminal encroachment on the right at C-4 and C-5; cervical spon-dylosis further degenerative diseases at C-4; grossly abnormal MMPI showing psychophysiological conversion type pattern of a chronic nature; diminished sensation involving the palm and radial aspect of the hand; bilateral absence of deep tendon reflex; moderately severe degenerative changes of C-3, C-4, C-5 and C-6 disc spaces; pain syndrome making normal range of motion of the neck difficult; headaches; insomnia; chronic pain; four periods of hospitalization to-talling 48 days. . .. ” (Tr. 50)

Defendants contended at trial and now that Walton is a malingerer. The trial court found a disparity between Walton’s subjective and objective disability, but attributed the differential to the psychosomatic overlay from the accident. Defendants introduced surveillance films, but the court noted:

“Practically all of the footage shows plaintiff walking in a stiff and deliberate manner and corroborates the findings of the physicians.” (Tr. 51)

The court observed Walton for two days during trial and was convinced that malingering would be totally out of character with his history and the appearance presented to the court. Also, the court noted: “The common thread to the many doctors’ opinions in the record is that Mr. Walton is not a malingerer.” (Tr. 51)

The accident occurred late in the afternoon on May 31, 1977. Walton was unconscious for the first few minutes after the impact. His wife called a doctor that evening. Walton could not see the physician without going to the hospital and decided to put it off until the next day. His wife helped him dress the following morning. He worked in pain that day. When he came home from work, he looked extremely worn and his wife made an appointment for him to see Dr. Phillip Cenac the next afternoon. Walton has been unable to return to work since seeing the doctor. His incapacity has increased with the passage of time. Traction and physical therapy have not improved his condition, although the therapy provides some pain relief. At the time of trial, Walton was faithfully going to a physical therapy clinic three times a week. Some days are not as painful as others; he has good and bad days. Walton can let his left arm hang down but it hurts when he does so and therefore he carries it above the waist with his other hand.

Except for an ulcer operation in 1956 or 1957, Walton enjoyed excellent health before the accident. According to the testimony of both spouses, Walton has largely abandoned his hobbies of fishing, hunting, and gardening. His wife encourages him to cut the grass. Their garden has been reduced in size. Walton attempts as much physical activity as he can and helps cut the grass around his house with a power mower.

Walton started working in the oil field as a roughneck at the age of seventeen and has remained in that field except for a period of service with the government. He had been a driller since 1945. A driller supervises the operations of a rig drilling crew but is required to take an active part in the operation. Walton once tried to do some dairy work but his wife had to assist him because he did not have the education and clerical skills to make out the bills.

Walton testified that he went to see Mr. Maten, a tool pusher for his former employer, Delta Drilling Company. Maten told him he could not drill anymore, so he went to the state employment office in Houma. The state employment office recommended that he talk to the vocational rehabilitation office where he had an interview with one Hornsby. Hornsby told Walton that he could not recommend anything to him.

Dr. Christopher E. Cenac testified as an orthopaedic expert about his treatment of Walton. Walton came to him on referral from Dr. Phillip Cenac’s office and was first seen on June 16, 1977. Walton was diagnosed as having an acute cervical strain and admitted to the hospital on June 23 for four days of cervical traction and physical therapy. Physical therapy was continued after release from the hospital, but Walton complained of weakness in the left upper extremity. Walton was referred to Dr. Michael E. Carey, professor of neurosurgery at the L.S.U. Medical Center. Dr. Carey performed a myleogram; it did not indicate a surgical situation. Dr. Carey’s report states Walton’s “MMPI. . . is grossly abnormal and showed a psychophysiological conversion type of pattern of chronic nature.” Dr. Carey also felt that Walton had “cervical osteoarthritis and cervical sprain consequent to his automobile accident.” Dr. Ce-nac continued to see Walton who complained of shoulder and arm pain. Dr. Ce-nac noted a diminishing range of motion in the cervical spine, and possible dystrophy of the left upper extremity. Arrangements were made for admission to the Mercy Hospital Pain Unit.

Dr. Richard H. Morse, a psychiatrist, is director of the Mercy Hospital Pain Center. The pain unit specializes in chronic pain problems which have originated in a physical cause, have not responded to medical or surgical intervention and have developed an emotional overlay. Walton was admitted on April 27, 1978, and stayed four weeks as an inpatient. He was seen by an internist, a neurologist, an orthopaedist, a neurosurgeon and a psychologist. When Walton was admitted, he was taking Tylenol and Placidyl, a sedative. Dr. Morse prescribed Elavil, an antidepressant, and Prolixin, a tranquilizer, but Walton had a low tolerance for these medications. When he was discharged, he was taking a muscle relaxant, Dantrium, twenty milligrams twice a day.

The psychological evaluation of Walton at the pain unit revealed a reactive depressive neurosis. The report of Dr. Robert A. McFarlain, a clinical psychologist, states that Walton has “a significant depression and that his pain complaints are being exacerbated by his depression.” In the opinion of the doctors, Walton was depressed because of loss of his earning capacity and ability to work. During treatment, Walton reached a less depressed state. There was no evidence of job avoidance.

The doctors at the pain unit felt that Walton had “truly anatomical pain” (Morse Depo., p. 16). They said Walton is “a very honest and nonmalingering person” who “actually did feel the pain he described” (Morse Depo., p. 22). His descriptions reflect a genuine pain experience. In Dr. Morse’s opinion, Walton suffers chronic pain on a constant daily basis. He does not respond well to nerve blocks. Walton was described as a person of strong personal morality who would find it difficult to dissemble or lie, a “sincere and salt-of-the-earth person” (Morse Depo., p. 23).

Dr. Morse defined Walton as a person of limited education from a hard background whose main identity was that of a good worker. The loss of working ability at his age represented a hopeless situation to him. According to the tests at the pain unit, Walton has good dexterity and average intelligence, but limited endurance.

When Walton was discharged, Dr. Morse believed that he could perform “light to moderate physical work activity” (Morse Depo., p. 22). However, Walton “. . . could not, as he formerly did, engage in heavy lifting”, climb steps, move quickly or work in hazardous circumstances (Morse Depo., p. 27). In Dr. Morse’s opinion, Walton could work as a drilling supervisor “provided he would have some ability to pace himself and he did not go into hazardous exposure such as bad weather, slippery equipment” (Morse Depo., p. 36).

The discharge summary on Walton from the pain unit notes that he has a depressive reaction which exacerbates his pain. He has a “perplexing” intensity of pain and disability. He is reported as “overwhelmed” by “paper and pencil tasks”. The report recommends that Walton continue with physical therapy on the outside. It is noted that Walton rapidly resumes “his splinting posture and frozen neck” after physical therapy and nerve blocks. Under “Current Problems”, the summary states:

“VOCATIONAL-EDUCATIONAL: The patient expresses a very strong desire to return to work. Prognosis of returning to his former occupation remains very guarded in light of the patient’s age, and the heavy labor he formerly pursued.”

Dr. Eugene J. Dabezies, an expert in or-thopaedic surgery, treated Walton at the Mercy Pain Unit and testified in deposition that Walton has cervical spondylosis, a chronic pain problem, psychological overlay and an arthritic neck. Dr. John F. Schuh-macher, a neurosurgeon, evaluated Walton in association with the Mercy Hospital Pain Clinic. He diagnosed Walton as having a stiff neck, degenerative disc changes, spurring in the spine, preexisting cervical spon-dylosis aggravated by the accident and psychological overlay.

After Walton’s discharge from the pain clinic in July of 1978, he continued to have pain and edema in the left upper extremity and hand. Dr. Cenac admitted him to the hospital for treatment of reflex sympathetic dystrophy, a progressive disease process in which an extremity swells, reddens, and sweats. The afflicted individual holds his hand or foot in a fixed position and maintains that posture until the extremity becomes useless. One of the components of dystrophy is causalgia, a constant burning pain. The disease is associated with trauma but is probably caused in part by Walton’s conversion reaction. Its origin has never been precisely determined in anyone. It was evident in Walton as early as August, 1977. The initial treatment is oral medication to which Walton did not respond. Dr. Cenac then tried cervical or stellate ganglion blocks to decrease sympathetic nervous system activity and increase the blood flow to the extremities. The blocks reverse the disease process for a period of seventy-two hours. As in thirty percent of the cases, the blocks failed here and surgery would also have been useless. On August 28, 1978, Walton again had dystrophy of the left hand. He was unresponsive to oral medication and was admitted to the hospital on September 10, 1978, for five successive cervical blocks. The pain, swelling, and stiffness in the left hand, shoulder, neck and arm were undiminished and it was felt that neuropsychiatric care was in order. Walton was referred to Dr. Keller, a specialist in rheumatoid diseases, and Dr. Homer Kurgis, a neurosurgeon.

Dr. Karl E. Keller, a rheumatologist, reported that Walton suffers from moderately severe cervical spondylosis and a pain syndrome, but no rheumatic disease. The deposition of Dr. Homer Kurgis is not significant.

At Dr. Christopher Cenac’s last examination, the day before trial, Walton was diagnosed as having reflex sympathetic dystrophy in the left upper extremity, ankylosis of the cervical spine subsequent to a traumatic sprain of the neck, osteoarthritic changes in the neck, and anxiety conversion reaction and significant cervical spondylo-sis. Walton has gross hand function, but lacks coordinated fine movements of the hand, shoulder and elbow.

In Dr. Cenac’s opinion, Walton’s reflex sympathetic dystrophy is causally related to the trauma of the automobile accident. Walton’s complaints of constant daily pain are consistent with Dr. Cenac’s clinical findings. Dr. Cenac examines people for work in the oil field. In his opinion, Walton is unemployable as a driller or oil field worker. Due to Walton’s limited educational background, age, loss of function of an entire upper extremity and limited range of motion of the cervical spine, the chances of successful vocational rehabilitation training are minimal. Walton was described as totally disabled.

Dr. Cenac testified that Walton will require orthopaedic and psychiatric treatment in the future. The primary treatment regime will be psychiatric but Walton will need approximately $500 a year in ortho-paedic treatment for at least three years, or a total of $1,500.

Three employees of Equifax Services did surveillance of Walton and filmed him mowing his lawn, driving a pickup and carrying groceries. Dr. Cenac testified again after viewing these films and said they demonstrated more range of motion than he had observed during treatment. Although Walton did not display a normal range of motion, he showed more function than he had displayed in the doctor’s office. From a purely orthopaedic standpoint, the movies indicated Walton can return to some gainful employment. However, Dr. Cenac still would not approve him for oil field work because of his dysfunction and abnormal posture. Walton’s symptomatology is unique in Dr. Cenac’s experience.

Kenneth Anderson Barrilleaux, a physical therapist, treated Dwight Walton from June 14, 1977, through the month of trial, seeing him three to five times a week. In twenty-five years, Barrilleaux had not seen anyone with Walton’s degree of disability and pain, but he has no reason to believe that Walton is faking or malingering.

Dr. Clayton Byron Edisen, a board certified psychiatrist, testified as an expert in that field. Dr. Edisen also practices neurology and has had neurological training. Dr. Edisen saw Walton on April 10, 1979, almost two years after the accident on May 31, 1977. Walton was supporting his left hand and had his chin down in a stiff position. In Dr. Edisen’s opinion, the posture was caused by a physical condition, holding the left arm in a slinglike manner and keeping the neck rigid being the most comfortable for the patient. Dr. Edisen felt the position was voluntary in the sense that Walton was avoiding pain. Dr. Edisen said Walton is depressed, with unmotivated sadness, an apathetic face, decrease in libido, insomnia, self-isolation and difficulty in concentration. In Dr. Edisen’s opinion, Walton’s self-concept of himself as “a little mule”, a person that could work as hard as anyone, had been wiped out by the accident. (Tr. 146)

Dr. Edisen did not believe Walton was feigning his symptoms and thought the patient too unsophisticated to consciously present a classic syndrome of depression. Walton was described as honest, sincere and cooperative. In Edison’s opinion, Walton was not suffering from compensation neurosis and his depression would not be alleviated by a cash award. Edisen reviewed eighteen reports in evaluating Walton. Dr. Edisen diagnosed a depressive neurosis reaction secondary to the accident and failure to improve physically following the accident. Dr. Edisen concluded that Walton is incapable of doing manual labor and will remain depressed because of his inability to work.

Apart from his depression, Walton has tingling sensations in the fingers of both hands, numbness and weakness of grip strength in the left hand, headaches, dizziness, difficulty with balance, inability to rotate the head, some weakness in grip strength in the right hand, stiffness in the fingers of both hands, an involuntary muscle tremor of the left arm, palpable muscle spasms in the neck and shoulders, an absent reflex in the left biceps, and a decreased reflex on the right. Although the palpable muscle spasms in the neck are a physical symptom, depression may contribute to the spasms. Walton displays classical symptoms of cervical spondylosis. In Dr. Edi-sen’s opinion, the pain and muscle spasms would render Walton incapable of manual labor even if he were not depressed. To Dr. Edisen, Walton’s prognosis is bleak.

Dr. James A. Knight, a professor of psychiatry at the L.S.U. School of Medicine, testified as an expert. He saw Walton in March of 1979 and described him as obviously depressed with the same rigid posture noted by Dr. Edisen. To Dr. Knight, Walton’s major problems were psychological. On the basis of the MMPI test Dr. Knight concluded that Walton had had a well established neurotic pattern before the accident. His condition was diagnosed as a depressive reaction. In Dr. Knight’s opinion, physiotherapy, some other “modalities of treatment”, (Tr. 192) supportive therapy and end of the litigation could restore Walton to a functional state.

Dr. Kenneth J. Boudreaux, a professor of economics and finance at the Tulane Graduate School of Business, testified as an expert on behalf of defendants. At the time of the accident Walton’s work life expectancy was eleven years. As of trial, the work life expectancy was 9.2 years. Using an annual salary of $24,000 and discounting at the rate of 8.5% per annum, Dr. Bou-dreaux calculated Walton’s loss of earnings for the remainder of his work life expectancy at a present value of $158,609.55. Using a 4% annual inflation figure, the loss of earnings would be $184,827.10. If Walton had received a 2.5% annual increase in wages, his loss of income would be $204,-187.87. In view of Walton’s age, this expert would not consider significant wage increases a valid factor. Walton’s loss of income from the date of the accident to the date of the trial was calculated at $50,715.

Dr. John W. Chisholm, plaintiff’s expert economist, testified that Walton had a work life expectancy of 11.7 years at the time of the injury. Dr. Chisholm said that Walton’s lost wages between the accident and the trial were $43,064.50. Assuming no wage increases during the remainder of his working life, Chisholm estimated loss of future earnings of $223,334.50. Discounted at five percent, the amount would be $183,638.66; discounted at six percent, the present value would be $177,163.72. Dr. Chisholm pointed out that for Walton, a man of limited education and investment sophistication, the five percent figure is more realistic. According to Dr. Chisholm, the average annual productivity increase in wages in the United States from 1950 through 1975 was 2.8 percent. Assuming an annual wage increase of 2.8 percent, Walton’s future wages discounted at five percent would amount to $195,271.12; discounted at six percent the figure would be $186,052.58. Adding an inflation figure of four percent, the sum would be $230,204.77 at a five percent discount, and $218,834.39 at a six percent discount.

Dr. Chisholm testified that the annual inflation figure has been over three percent for the last fifteen years. In his opinion, the four percent inflation figure is ultraconservative to the point of being unrealistic., Dr. Chisholm testified that the probability was that Walton would have continued working until the age of 65.7 years, the statistically average retirement age.

Irby Hornsby, Jr., a counselor with the State Department of Vocational Rehabilitation, testified that his job involves trying to place handicapped individuals back in employment. Walton was referred to his office by the Louisiana State Employment Agency. Hornsby testified that, because of Walton’s age, then fifty-six, educational background, overall intelligence, poor memory, and physical symptoms, he was not “rehabilitation material” (Tr. 266). On the Wechsler intelligence test, Walton scored 84 whereas the average is between 90 and 110. In Hornsby’s opinion, Walton is incapable of returning to full-time gainful employment and it would be difficult to place him in part-time employment, despite his interest in returning to work.

There is no real conflict in the medical evidence. There is some uncertainty about the exact degree of Walton’s physical disability. The films show a limited range of motion for short periods of time. Some physical disability is clear from the palpable muscle spasms still present in the neck. Even if these spasms result from Walton’s rigid posture, they are unfeigned and involuntary. They relate back to the accident and are compensable. See Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La., 1974). Dr. Edisen’s diagnosis of Walton’s physical condition is challenged by defendants as being beyond that doctor’s expertise. However, Dr. Edisen has had neurological training and practices neurology-

There is no dispute among the experts about Walton’s mental incapacity. Dr. Knight indicated that Walton was predisposed toward neurosis. Although he functioned well before the accident, his reaction to the injury was more severe than that of most people. This does not lessen the tort-feasor’s responsibility to compensate Walton for all the consequences of the accident. A tort-feasor takes the victim as he finds him. Perniciaro v. Brinch, 384 So.2d 392 (La., 1980); Reck v. Stevens, 373 So.2d 498 (La., 1979). Dr. Knight felt that the depression could be successfully treated. Dr. Edisen did not agree. The trial court adopted Dr. Edisen’s view that Walton will remain depressed and unemployable.

Defendants rely heavily on Dr. Morse’s testimony to establish that Walton is able to work. However, the limitations which Dr. Morse prescribed are incompatible with oil field work, Walton’s only field of expertise. Walton is incapable of clerical work according to the discharge summary from the pain unit and his own testimony. The state employment office and the state office of vocational rehabilitation offered him no prospect of employment or rehabilitation. His peculiar posture would certainly deter prospective employers. The trial court's conclusion that Walton is unable to work is reasonable and certainly not clearly wrong.

The jurisprudence cited by defendants’ able attorney is of little assistance in gauging whether this award is excessive. No two cases are exactly alike, and each must stand on its own facts. Reck v. Stevens, 373 So.2d 498 (La., 1979); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

Walton’s testimony about the pain he has endured is corroborated by the medical history. Recompense for pain and suffering “. . . cannot be calculated with any mathematical precision.” Boutte v. Hargrove, 290 So.2d 319 at 322 (La., 1974). The $75,000 award for pain and suffering is not excessive.

Walton’s future orthopaedic treatment was estimated at $1,500. Defendants’ expert, Dr. Knight, agreed with Drs. Cenac and Edisen that future psychiatric treatment will be needed. There is no testimony about the estimated cost. Considering the price of Walton’s past treatment, the $3,500 awarded by the trial court for this item of damages is not excessive. Where the right to damages is clear but there is no exact estimate of cost, a reasonable assessment can be made by the trier of fact. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971).

The $56,084 awarded for loss of past wages is higher than the figure of $50,715 calculated by Dr. Boudreaux. However, Dr. Boudreaux assumed that Walton’s wages would not have increased. Since Walton received a raise of almost $3,000 between 1976 and 1977, the trial court could have assumed similar raises between 1977 and 1979. Loss of wages can be computed on the amount a plaintiff would in all probability have been earning at the time of trial. Coco v. Winston Industries, Inc., 341 So.2d 332 (La., 1976). Damages for loss of past wages are not necessarily limited to a multiplier of the amount earned at the time of injury. Folse v. Fakouri, 371 So.2d 1120 (La., 1979). The award for loss of past wages does not represent an abuse of discretion.

A larger amount for future loss of wages could have been justified on the evidence presented.

The evidence supporting the trial court’s award of damages is overwhelming. Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La., 1974).

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

      . The liability of Liberty Mutual Insurance Company was limited to its policy limits of $250,000.

      . His parents died at the ages of eighty-seven and eighty-six, both of old age.

      . Walton first saw his trial attorney about a year after the accident.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    Willie O. NASH et ux. v. WESTERN CASUALTY AND SURETY COMPANY et al.
    No. 81-C-1308.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      Edwin Dunahoe of Thomas & Dunahoe, Natchitoches, for plaintiffs-applicants.
    Fred S. Gahagan of Gahagan & Gahagan, Natchitoches, for defendant-respondent.
   DIXON, Chief Justice.

Two suits are involved in this case. The first was a suit for damages by Willie 0. Nash and his wife against Leonard Johnson, arising from a fire which destroyed the Nash’s house, and which was caused by the installation of an unvented gas space heater, by Johnson, under a contract to renovate the Nash home. That suit went to final judgment in the district court, and was not appealed. The suit was confirmed on default; Johnson appeared and testified, but was not represented. The Western Casualty and Surety Company, Johnson’s contractors’ liability insurer, was notified of the claim, but declined to appear and defend because of its belief that the policy did not cover the Nash loss.

The Nashes then filed this suit — a declaratory judgment action against Western Casualty. It was tried before another judge, and plaintiffs lost in both the district court and the court of appeal. Neither court reached the question of coverage; both found that plaintiffs had failed to prove that Johnson’s breach of the building contract by not venting the space heater in the living room was the cause of the fire.

Both courts below were in error to litigate this issue a second time. Johnson had been cast in judgment for damage arising from the building contract.

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A. bodily injury or
Coverage B. property damage
to which this policy applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”

Western’s right, and perhaps its duty, to litigate the cause of the damage was in the first suit, and it chose to take no action. It can escape its liability to its insured only if there is no coverage under the policy.

And we find that there is no coverage. Among the exclusions (“This policy does not apply:”) is (q) ... property damage included within the completed operations hazard ...” Property damage is “damage which occurs during the policy period . . .,” according to the definitions. “Completed operations hazard,” however, “includes . .. damage arising out of operations .. . but only if the . . . damage occurs after such operations have been completed or abandoned . . . Operations which may require further service or maintenance work, or correction, or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.”

A fair reading of the evidence is conclusive that Johnson was through with the work, did not intend to install the vents for the heaters, and assured the Nashes that there was no fire danger. Mr. Nash signed a completion certificate; 'although he could not read, he testified that he signed it “so Johnson could get his money.” The heaters were in use from the time they were installed. The fire occurred about three weeks after the completion certificate had been executed. There is no evidence that anyone considered that there were yet “operations to be performed by or on behalf of the named insured ...”

For these reasons the judgment of the court of appeal and the district court are affirmed at relator’s cost.

WATSON, J., dissents.


author: DENNIS, Justice. LEMMON, Justice,

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. Wilson J. SONNIER.
    No. 81-C-1315.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      J. Minos Simon and Gerald J. Block of Simon & Dauterive, Lafayette, for defendant-applicant.
    Richard Meaux and M. Candice Hattan of Davidson, Meaux, Sonnier & Roy, Lafayette, for plaintiff-respondent.
   DENNIS, Justice.

The issue presented here is whether an insurer that pays medical and funeral expenses under its automobile insurance policy may be subrogated conventionally to its insured’s right against a third party tortfeasor, and, if so, whether it may enforce the right prior to its insured’s recovery of the entire amount due him. Both lower courts decided that the insurer is entitled to be paid in preference to its insured out of any proceeds either recovers from the tortfeasor. Southern Farm Bureau Cas. Ins. v. Sonnier, 396 So.2d 996 (La. App. 3d Cir. 1981). We reverse. An insurer that makes payment to its insured pursuant to its medical payments coverage may enforce a conventional subrogation agreement contained in its policy. Subrogation cannot injure the insured, however, and if he has been paid only in part for his damages, he may exercise his right for what remains due in preference to his insurer.

As reflected by the court of appeal opinion, the parties stipulated the following facts:

“Mr. and Mrs. Wilson J. Sonnier’s son died in a car-train collision on August 9, 1974. Southern Farm, pursuant to a medical payments clause in the insurance policy, paid Wilson J. Sonnier $2758.40 for his son’s funeral expenses. The Sonniers sued Missouri-Pacific in federal district court for the wrongful death of their son. On June 3, 1977, the jury found Missouri-Pacific negligent and awarded the Sonni-ers $103,160 in damages. The award included $3,160 to Wilson J. Sonnier for his son’s funeral expenses. Missouri-Pacific appealed.
“Southern Farm learned of the suit from a newspaper clipping forwarded by an agent to its Baton Rouge offices six days after the judgment. Southern Farm contacted Sonnier’s attorney to collect the $2758.40, relying upon a subrogation clause contained in the insurance policy. Before it could be determined whether Sonnier would honor Southern Farm’s claim, the Sonniers settled their suit against Missouri-Pacific for $90,000 on March 21, 1978. The next day, Sonnier’s attorney informed Southern Farm Sonnier would not honor its claim. Southern Farm filed suit on March 28, 1978.” 396 So.2d at 997.

The automobile insurance policy issued by Southern Farm in Sonnier’s favor contained the following clause:

“11. Subrogation. Upon payment of any loss covered under this policy, the Company shall succeed to all the rights of recovery of the insured, or any other person in whose behalf payment is made, and they shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights, and shall do nothing after loss to prejudice such rights.”

The court of appeal correctly held that when Southern Farm paid the loss of medical and funeral expenses covered under its policy it became subrogated to the extent of this payment to Sonnier’s claim against Missouri-Pacific Railroad Company. Conventional subrogation occurs when the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor; this subrogation must be “expressed and made at the same time as the payment.” La. C.C. art. 2160. However, when Article 2160 says of the conventional subrogation that it must be “made at the same time as the payment,” it does not mean that the agreement of subrogation cannot be entered into before, or in anticipation of, the payment, but simply that it cannot be entered into after the payment. Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La.1974); Cooper v. Jennings Refining Co., 118 La. 181, 42 So. 766 (1907); State Farm Fire & Casualty Co., et al. v. Sentry Indemnity Co., et al., 346 So.2d 1331 (La. App. 3d Cir. 1977); 2 M. Planiol, Civil Law Treatise, pt. 1, no. 480(2) (11th ed. La. St. L. Inst. Trans. 1959).

Nevertheless, subrogation cannot injure the creditor, since, if he has been paid but in part, he may exercise his right for what remains due, in preference to him from whom he has received only a partial payment. La. C.C. art. 2162. Thus, when the creditor has received from the subrogee a partial payment only, the credit is divided between them; the original creditor remains creditor for the unpaid portion and the subrogee becomes creditor to the extent of the payment he has made. 2 M. Planiol, supra, nos. 515, 516 at 286. As this court observed in Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848, at 856:

“[I]n a subrogation the interest of a creditor ... in receiving payment of his debt in return for subrogating the third party to his right to recover it, outweighs the interest of the debtor ... in avoiding the division of the debt he owes into multiple claims, the policy preventing partial assignments.” [citations omitted]

According to French jurisprudence dating back as far as 1712, the original creditor or subrogor is always preferred to the subro-gee in such a case; he comes before the latter, and the subrogee can only claim that which remains after the subrogor has been paid. This was the rule in the time of Pothier and the Civil Code (C.N. 1804, art. 1252) expressly recognizes this right of preference accorded to the subrogor against the subrogee. 2 M. Planiol, supra. Accordingly, when an insurer pays his insured only part of the damages to which the insured is entitled from a tortfeasor, the insurer becomes only partially and subordinately sub-rogated to the insured’s right, and the insured is entitled to exercise his right for the balance of the partially paid claim in preference to the insurer-subrogee. See Carter v. Bordelon, 370 So.2d 113 (La. App. 1st Cir. 1979); Legendre v. Rodrigue, 358 So.2d 665 (La. App. 1st Cir. 1978).

Moreover, in a partial subrogation the debt is divided between the subrogor and subrogee, making them either joint or several obligees, and allowing each to exercise his right without prejudice to the other. See Cox v. W. M. Heroman & Co., Inc., supra. The reason that the original creditor or subrogor is always preferred to the subrogee in a partial subrogation is explained by means of an implied agreement. “Pothier, who was quite familiar with the origin of this rule, says: ‘The creditor who is paid with the money of another is not obliged to subrogate the payor, except insofar as it will not be prejudicial to him; consequently, in subrogating the payor to the mortgages ... securing his credit, he is considered as having reserved to himself a right of preference as to what remains unpaid.’ ” 2 M. Planiol, supra, no. 516. See 7 M. Planiol and M. Ripert, Traité pratique de droit civil franeais 647 (2 me ed. Esmein 1954). In accordance with this underlying policy, we conclude that the partial subro-gee is accorded merely the right of a joint or several obligee. It would be inconsistent with the legislative scheme to allow the partial subrogee to exercise the prerogatives of a solidary obligee. As Planiol observed, solidarity between creditors is almost without application in civil matters and may be considered a dead institution; its capital inconvenience being that it puts all of the creditors at the mercy of one of them, since each can, at maturity, collect the total and appropriate it to himself or dissipate it. 2 M. Planiol, supra, nos. 725, 731. Furthermore, active solidarity may be created by contract or by testament, but it is never established by operation of law. La. C.C. art. 2088; 2 M. Planiol, supra, no. 726; 4 C. Aubry and C. Rau, Droit civil franeais § 298a (6th ed. Bartin) in A. Yian-nopoulos, 1 Civil Law Translations 12 (1965). It is unnecessary for us to decide in this case whether the subrogor and subro-gee in a partial subrogation are joint or several obligees, since either type of obli-gee enjoys an independent substantive right which he may exercise against the debtor. From a procedural standpoint, however, it should be noted that if there has been a partial subrogation, and the suit is brought only by the subrogor or the subrogee, there is a non-joinder of a necessary party. See La. C.C.P. art. 642; art. 697; and Comment (c) under 697; see also, La. C.C. art. 2085; 1 S. Litvinoff, Obligations, § 22 in 6 Louisiana Civil Law Treatise 41 at n. 71 (1969). If the defendant fails to object timely to the non-joinder of a necessary party, in a case of partial subrogation, the objection is waived and the court may make an adjudication. But if, in such a case, the partial subrogation is proven, the plaintiff may recover only his interest in the partially subrogated claim. See Comment (c) under La. C.C.P. art. 697.

Accordingly, we conclude that, upon Southern Farm’s payment to its insured, the debt of the railroad was divided between it and Sonnier, causing them to become either several or joint obligees, and that the subsequent actions of Sonnier in exercising his right to collect his part of the credit had no prejudicial effect upon the insurance company’s right. Moreover, Son-nier, as a partial subrogor, had a lawful cause of preference over the insurer for payment out of his debtor’s property and was entitled to pursue his legal remedies for what remained due him. La. C.C. art. 2162. We set to one side without deciding the remaining issues discussed in the court of appeal opinion. Since the additional questions are not relevant in view of our decision, we express neither approval nor disapproval of the court of appeal’s disposition of them.

For the reasons assigned, the judgments of the trial court and court of appeal are reversed and judgment is rendered herein in favor of Wilson Sonnier rejecting Southern Farm’s demands and assessing all court costs to the insurance company.

REVERSED AND RENDERED.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

Missouri-Pacific owed the full amount of damages to Sonnier. Distribution of the proceeds of the claim for damages was a matter of concern between Sonnier and Southern Farm Bureau. Had Missouri-Pacific paid Sonnier the full amount of damages, Southern Farm Bureau would not have been precluded from asserting its sub-rogation right against Sonnier. Neither should Missouri-Pacific’s payment to Sonnier of a discounted amount of damages (in settlement of the pending appeal) preclude Southern Farm Bureau from asserting its subrogation claims against Sonnier, when Sonnier knew at the time of settlement that Southern Farm Bureau was still seeking reimbursement.

Since Sonnier settled for 87% of the total damages, I would award Southern Farm Bureau 87% of its subrogation claim, minus the amount of attorney’s fees due Sonnier’s attorney for recovery of that amount.

      . See La. C.C. arts. 2077, et seq., 1 S. Litvinoff, Obligations § 22 in 6 Louisiana Civil Law Treatise 41 at n. 71 (1969); see 4 C. Aubry and C. Rau, Droit civil franeais § 198 (6th ed. Bartin) in A. Yiannopoulos, 1 Civil Law Translations 12 (1965).

      . See La. C.C.P. art. 643, comment (a); Preliminary Statement Book I, Title 111, Chapter 1, Joinder, La. C.C.P.; McMahon, Joinder of Parties in Louisiana, 19 La. L. Rev. 1 (1958); Brown, Substantive and Procedural Aspects of Joint, General and Joint and Several Obligations, 14 La. L. Rev. 828 (1954).


author: BLANCHE, Justice. LEMMON, Justice,

text:
    Gene SOILEAU v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 81-C-1368.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      Richard C. Broussard of Domengeaux & Wright, Lafayette, for plaintiff-applicant.
    Edward B. Dubuisson of Dubuisson & Dubuisson, Opelousas, for defendant-respondent.
   BLANCHE, Justice.

Gene Soileau instituted this action against South Central Bell Telephone Company to recover damages for personal injuries sustained by him when he tripped over a temporary telephone service wire. After a jury trial, judgment was rendered in favor of plaintiff and against defendant in the sum of $65,000. Defendant appealed this award to the Third Circuit Court of Appeal. That court reversed the lower court judgment and held that plaintiff’s recovery was barred by contributory negligence. We reverse.

The facts set forth in the opinion of the court of appeal are as follows: During October of 1977, Mrs. Penny Soileau, plaintiff’s wife, contacted South Central Bell Telephone Company and requested telephone service for their residence in rural St. Landry Parish. On November 2, 1977, Bruce Jennings, an employee of the defendant, connected the requested service to the Soileau home. Due to a defective ground wire, the connection of service necessitated the installation of a temporary drop wire which was laid upon the surface of the ground. The wire employed by Jennings was approximately one-quarter inch in diameter and flat black in color. The drop wire was attached to a “protector” located on the side of the Soileau residence and strung across a sidewalk at the side of the house and continued approximately 100 feet to a terminal located near the roadway passing in front of the Soileau residence. Approximately three weeks after the temporary drop line was installed, Mrs. Soileau contacted defendant requesting that defendant send an employee out to the bury the wire. Subsequently, Mrs. Soileau made numerous calls requesting that the wire be buried, however, this was not done until May 5, 1978 approximately six months following its installation. Testimony at trial indicated that to leave a temporary drop wire exposed for such a lengthy period of time is highly irregular and contrary to telephone company policy.

On January 28, 1978, at approximately 10:15 p. m., plaintiff, intent on feeding his animals, went to the front porch of his home to obtain some feed and then walked briskly alongside and toward the rear of his residence where he kept his animals. It was a dark night and according to the plaintiff, the security light located approximately 100 feet away did not illuminate that portion of the sidewalk upon which the temporary drop wire was located. The actual trip and fall was described by plaintiff during his testimony during which he stated:

“A. When I got in to the spot, you know, where my butane tank is there, I touched — felt something was on my foot like that and I realized what it was when I felt it. I knew it was that wire and I was coming close to my back sidewalk that runs sideways like that so I going to jump that sidewalk, untangle my foot and as I jumped like that, I felt the wire come off my right foot. I thought I was free, kept on going and when I knew something, man, it pulled me to a dead stop, cracked my leg like that and I fell sitting down. It was hooked on my left foot.”

The law applicable in this case was set forth in Siau v. Rapides Parish School Board, 264 So.2d 372, 375 (La.App. 3d Cir. 1972), writ den. 262 La. 1148, 266 So.2d 440 (La.1972).

“Negligence is a failure to observe or do something that one ought to have observed and done, and would have done or noticed with ordinary care. Plaintiff is held to have seen that which he should have seen. Although plaintiff was not required to keep his eyes glued to the pathway, he was required to look sufficiently well to see if his path was clear. Bamburg v. Standard Oil Co. of La., 199 So. 411, 412 (La.App. 2d Cir. 1940).

Contributory negligence is a matter of fact to be determined in the light of the circumstances of each case. McKowen v. Gulf States Utilities Company, 358 So.2d 675 (La. App. 1st Cir. 1978). Questions of fact are generally left to the jury and their findings should not be disturbed unless they are clearly wrong. Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3d Cir. 1979). On the record before us we cannot say that the jury’s factual determination was clearly wrong.

The evidence was sufficient for the jury to conclude that the plaintiff was using ordinary care at the time of the accident even though he did not remember the presence of the wire until he was entangled. Mr. Soileau testified that he had not been along the front sidewalk where the wire was located since December because he usually went out the back door. This indicates that he had not used the sidewalk for up to two months prior to the time of the accident. The security light did not illuminate this portion of the sidewalk because of shadows cast by nearby trees and a butane tank. The accident occurred late on a winter night while Mr. Soileau was hurrying to feed his animals and get back inside for supper. The jury could have found that under these circumstances, a man exercising ordinary care might still have tripped over the wire. A person is not required to exercise the utmost caution at each moment to avoid every hazard of which he was ever aware. Even the “reasonable man” is permitted an occasional lapse of memory.. The critical inquiry is whether or not he was exercising ordinary care for his own safety at the time of the accident and whether or not it was reasonable to forget the presence of the wire. In this case we are of the opinion that the jury’s findings should have been relied upon.

The defendant cited Artigue v. South Central Bell Telephone Co., 390 So.2d 211 (La.App. 3d Cir. 1980), which involved a similar factual situation. In that case, a gray drop line rested on the surface of some short grass alongside the home of the plaintiff’s brother, veering a few feet into an adjoining vacant lot at several intervals. This lot separated the plaintiff’s home from the home of his brother, and the plaintiff crossed the lot frequently. Artigue tripped over the wire around dusk one evening as he was returning from the home of his brother. The jury in Artigue found that the plaintiff had been contributorily negligent.

The case at bar can be distinguished from Artigue on a factual basis. Soileau tripped on a drop line which was flat black in color at 10:00 p. m. as he was walking along a darkened sidewalk which he seldom used. Further, the court in Artigue correctly stated, “While the facts are such that a different jury or trier of facts might have found in favor of plaintiff-appellant, the jury in this case did not.” In the case at bar, another jury might have found that Mr. Soileau had been contributorily negligent; however, the jury assigned to try this case did not. The standard for changing a finding of fact by a jury on appeal is clear error and that standard has not been shown.

The court of appeal placed great significance upon the portion of Mr. Soileau’s testimony describing the fall, which was set forth in the statement of facts. The court of appeal felt that this testimony indicated that the plaintiff encountered the wire before falling and still attempted to jump the sidewalk to disentangle his foot. However, a review of his testimony as a whole shows it could support a finding that Mr. Soileau was already off balance and falling at the time he jumped and was just attempting to clear the walk so he would fall on the grass instead of the sidewalk. We agree with the dissent written in the court of appeal that the record contains ample proof to support the jury’s finding of fact. We will not substitute our judgment for that of the jury unless there is clear error.

For the foregoing reasons, we reverse the judgment of the court of appeal and reinstate the judgment of the trial court.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

The court of appeal erred, as a matter of law, in placing the burden on plaintiff to remember moment after moment for three months the existence of a non-apparent hazard on his premises, while relieving defendant from the responsibility for creating the hazard and allowing it to continue in existence.


author: WATSON, Justice.

text:
    Roy B. SCHAEFER, Jr. v. Bill LYNCH and the Times Picayune Publishing Corporation.
    No. 81-C-1409.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      Jack M. Weiss, Rutledge C. Clement, Shaun B. Rafferty of Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, F. W. Middleton, Jr. of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-relator.
    Robert L. Kleinpeter of Kleinpeter, Kleinpeter & Kleinpeter, Baton Rouge, for plaintiff-respondent.
   WATSON, Justice.

The issue in this defamation case is whether defendants are entitled to a summary judgment.

Plaintiff is Roy B. Schaefer, Jr. and defendants are Bill Lynch and the Times Picayune Publishing Corporation. Schaefer alleged that a news article which was printed in the New Orleans States-Item Newspaper was false and defamatory. He also alleged that Bill Lynch wrote the article with the malicious purpose of discrediting Schaefer and effecting his removal as Director of the Louisiana State Employees Retirement System. The States-Item Newspaper, now defunct, was owned by the Times Picayune Publishing Corporation.

Defendants moved for a summary judgment, contending that they had printed no false statements of fact. The trial court denied the motion on the ground that the words, even if true, had a libelous imputation. The First Circuit Court of Appeal declined a writ of review and this court granted one. Schaefer v. Lynch, 401 So.2d 1193 (La.1981).

Summary judgment is designed to dispose of frivolous demands and defenses. It is appropriate only when there is no genuine issue of material fact and mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. There is no right to appeal from a court’s refusal to render a summary judgment. LSA-C.C.P. art. 968. Official revision comment (d) under that article states:

“Since a trial court’s action in overruling a motion for judgment on the pleadings, or for summary judgment, is merely an interlocutory judgment causing no irrepa-rabie injury, it cannot be appealed, except under the appeal from the final judgment rendered in the case.”

However, a defendant is constitutionally entitled to summary dismissal of a libel suit unless plaintiff can show malice. Batson v. Time, Inc., 298 So.2d 100 (La.App. 1 Cir. 1974), writ denied 299 So.2d 803 (La.). Otherwise, the threat of litigation would have a “chilling” effect on freedom of the press. The writ was granted to determine whether trial on the merits of this libel action would infringe on the rights of freedom of speech and freedom of the press guaranteed under the First and Fourteenth Amendments of the United States Constitution. Batson v. Time, Inc., supra.

Since the news article involves a matter of public interest and a public official, it is governed by the principles enunciated in New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

Madison v. Bolton, 234 La. 997, 102 So.2d 433 (1958) held that a truthful statement conveying a defamatory insinuation is actionable. Lynch’s article conveys the impression that Schaefer used his official position to influence lending institutions for the benefit of his investment in the Beef Corral restaurant. An affidavit by Hazen A. Ross, Jr., indicates that this innuendo was motivated by ill-will. Lynch told Ross “. .. he would run Roy B. Schaefer, Jr., out of state government if it was the last thing he did.”

Schaefer specifically admitted in deposition that, as far as he knew, there was nothing factually incorrect in the article. However, “the way people looked at the thing” he was accused of misusing state funds for personal benefit (Depo. p. 49). Schaefer admitted that, if he had not been honest, he could possibly have manipulated the investments he made in certificates of deposit. However, he said that he tried to avoid even the appearance of wrongdoing. As a result of the article, business at the Beef Corral suffered. The business went bankrupt and Schaefer was left with some of the loan obligations.

There is evidence of malice and ill-will on the part of Lynch. Malice, in the sense of New York Times Co. v. Sullivan, supra, requires publication of falsehoods with knowledge of their falsity or with a reckless disregard of their truth or falsity. Here, there is actual malice but no untruth.

The article is defamatory in the sense that it tends to diminish the public’s respect for Schaefer. A defamatory meaning is insinuated. See Cooper v. Greeley, 1 Denio N.Y. Reports 347 (1845). When truthful statements carry a defamatory innuendo, the implication should also be true to justify publication. See Spiegel, “Defamation by Implication — In The Confidential Manner”, 29 So.Cal.L.Rev. 306. Nonetheless, the publication of true statements is generally encouraged even if published “. . . for no good reason or for the worst possible motives.... Prosser, Law of Torts, 4th Ed., West, p. 797. The United States Supreme Court has established that there is no liability for publication of the truth about public officials regardless of motive. Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). “Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned.” Garrison, supra, 379 U.S. 64, at 74, 85 S.Ct. 209 at 216, 13 L.Ed.2d 125 at 133 (1964). Even a publication which intentionally inflicts harm on a public official is not actionable unless false. Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965).

Madison v. Bolton, supra, correctly held that truthful statements which carry a defamatory implication can be actionable. However, that is only true in the case of private citizens and private affairs. Even false statements about public officials are constitutionally protected unless known to be false or printed with a reckless disregard for the truth. New York Times Company v. Sullivan, supra. It surely follows that all truthful statements are also constitutionally protected. Even though a false implication may be drawn by the public, there is no redress for its servant. Where public officers and public affairs are concerned, there can be no libel by innuendo. The holding of Madison v. Bolton, supra, that a public officer can recover damages for truthful statements containing false and defamatory implications, is overruled. A public official cannot recover damages because a defamatory publication is motivated by ill-will unless the publication is also false. Compare Mihalik v. Duprey, - Mass.App. -, 417 N.E.2d 1238 (1981).

For the foregoing reasons, the judgment of the trial court herein is reversed and the case is remanded for entry of a summary judgment in favor of defendants.

REVERSED AND REMANDED.

CALOGERO, J., concurs.

DENNIS, J., concurs with reasons.

      . The news article was as follows:
      “RETIREMENT CHIEF ACKNOWLEDGES
      LOANS”
      “By Bill Lynch
      “States-Item bureau
      “BATON ROUGE — Roy Schaefer, director of the State Employees Retirement System, obtained $290,000 in loans, including one unsecured loan, from banks the system did business with, to finance a restaurant in which he was a partner.
      “Schaefer acknowledged the loans to The States-Item, but denied there was any impropriety involved.
      “He said he paid the going rate of interest on the loans and the retirement system received the maximum benefit on its transactions.
      “The veteran state employee said that the entire matter is being investigated by Atty. Gen. William Guste as part of a legislative inquiry into retirement system investment practices.
      “Schaefer is a partner in the Beef Corral, a cafeteria-style restaurant in Hammond. He says he owns 42 per cent.
      “A $250,000 SMALL Business Administration loan was obtained from the Capital Bank and Trust Co. of Baton Rouge for the Beef Corral, which opened in November, 1974.
      “In January, 1974, Schaefer negotiated on behalf of the retirement system an agreement to participate with the Capital Bank and Trust Co. in $1.5 million worth of SBA loans.
      “In February, 1975, he obtained an unsecured loan of $15,000 from the First National Bank of St. Bernard Parish for the Beef Corral.
      “The retirement system had purchased certificates of deposit from the St. Bernard bank in $2-million increments for 30-day periods during the previous four months.
      “A certificate of deposit, or CD, as it is commonly called, is sold by banks as a means of obtaining deposits for a guaranteed period.
      “In March, 1975, Schaefer and his original partner, Thomas Demo, obtained a $25,000 loan from the Citizens Bank & Trust Co. of Hammond.
      “The retirement system had been purchasing CD’s from the bank over a two year period, with as much as $3 million outstanding at one time.
      “Schaefer also obtained a $6,000 unsecured loan from the Hibernia National Bank of New Orleans in February, 1975, but the director said the retirement system did not do business with that bank.
      “SCHAEFER SAID he had asked the advise (sic) of the attorney for the state Ethics Commission about the propriety of the loans and was advised there was nothing wrong with it because he was paying interest.
      “R. Gray Sexton, the attorney for the ethics commission who gave the advice, also was attorney for Schaefer on closing of the SBA loan and was paid $1,300, according to the director.
      “Sexton has represented the State Employees Retirement System on a number of real estate loans which have come under scrutiny by a legislative committee and the attorney general’s office.
      “Schaefer said that his business venture has not fared well and he is faced with possible loss of everything he has. He blamed the problems on cost overruns and high interest rates.
      “He said he did not at any time ask for any special treatment because of the retirement system’s business dealings with the banks.

        “He said he went to the Capital Bank and Trust Co. for the SBA loan because it was doing a lot of SBA business in the state. He said he was charged an 11 per cent interest rate because money was tight at the time.
      “The retirement system, Schaefer said, received a good interest rate of 8.75 per cent in its participation agreement on the Capital Bank’s SBA loans. He said all of the system’s share was guaranteed.
      “Schaefer and Demo each put up $12,500 mortgage collateral on their homes for the $25,000 loan from the Citizens Bank of Hammond, he said.
      “THE RETIREMENT system bought a $1 million CD from the bank in October, 1973, for a 14-month period. Then it purchased additional CD’s during the period, mostly for 30-day periods.
      “From September through December of 1974, the system held $3 million in CD’s from the Citizens Bank of Hammond.
      “Interest rates varied from 11 per cent to 7.6 per cent, but Schaefer said he received the maximum available for the retirement system.
      “The $15,000 loan from the St. Bernard bank, he said, was used to pay off an overdraft of $10,000 and insurance of $5,000. He said he only needed to sign his name for a personal loan and did not have to put up any collateral.
      “The retirement system bought a $2-million certificate of deposit from the St. Bernard Bank in October, 1974. It was a 30-day CD and was renewed over the next four months.
      “Schaefer said that he originally owned 49 per cent and Demo 51 per cent of the Beef Coral stock, but they sold 12'/2 per cent to a third person.
      “He said that with 38 years of state service he is eligible to retire at full salary but has been staying on because he is president of a national organization of retirement system officials.
      “Schaefer’s name was mentioned prominently in connection with stories a year ago about the retirement system’s real estate loans, one of which went into default before the first payment.”

      . Counsel for plaintiff points out that technically Schaefer was a stockholder rather than a partner in the business, but Schaefer himself did not quarrel with his designation as a partner.

      . The New York Tribune stated, in reference to Cooper’s prospective libel action: “He will not like to bring it in New York, for we are known here, nor in Otsego for he is known there.” The innuendo that Cooper was in bad repute in Otsego was held to be libelous.


author: MARCUS, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Willie PETERS.
    No. 81-K-1854.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Reginald T. Blades, Jr., Asst. Dist. Attys., for plaintiff-relator.
    Martin E. Regan, Jr., New Orleans, for defendant-respondent.
   MARCUS, Justice.

Willie C. Peters and Edward Green were charged in the same incident by the grand jury for the first degree murder of William 0. Barges on March 23,1980, while engaged in the perpetration of an armed robbery in violation of La.R.S. 14:30(1).

Defendant, Willie C. Peters, filed a pretrial motion for discovery and inspection and for a bill of particulars requesting, inter alia, all exculpatory information in possession of the state. The state answered that it had no evidence favorable to defendant. The state’s answer further disclosed that defendant was arrested on information supplied by his sister, Margenette Peters, who had also been arrested and charged by the state. Thereafter, defendant moved to obtain the grand jury testimony of Margen-ette Peters. After a hearing, the trial judge granted defendant’s motion and ordered the state to turn over the transcript of her testimony before the grand jury to defendant. On the state’s application, we granted a writ under our supervisory jurisdiction to review the correctness of that ruling.

At the hearing, defendant contended that Margenette Peters’ testimony before the grand jury conflicted with statements she gave to the police, defense counsel and the court during previous motion hearings. At oral argument before this court, defense counsel stated that Margenette Peters told him that she had lied in her testimony before the grand jury because of pressure from the district attorney (due to her own involvement in the incident) and that she could not remember everything that she had said. Defense counsel further advised this court that the witness had granted defendant permission to read her testimony. Therefore, it is argued that the policy behind the secrecy of the grand jury would not be impaired. Defendant seeks the transcript for impeachment purposes and points out its importance because of the witness’ status as the state’s key witness in this capital case.

The state contends the grand jury proceedings are secret and are unavailable for impeachment purposes. Hence, the transcript of the witness’ testimony should not be turned over to defendant. Alternatively, the state suggests that the trial judge conduct an in-camera inspection to determine whether or not any inconsistencies exist and if so whether they are material to the issue of guilt or innocence before turning over the transcript of the witness’ grand jury testimony to defendant.

La.Code Crim.P. art. 434(A) provides:

Members of the grand jury, all other persons present at a grand jury meeting, and all persons having confidential access to information concerning grand jury proceedings, shall keep secret the testimony of witnesses and all other matters occurring at, or directly connected with, a meeting of the grand jury. However, after the indictment, such persons may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney, or the court, and may testify concerning them. Such persons may disclose testimony given before the grand jury, at any time when permitted by the court, to show that a witness committed perjury in his testimony before the grand jury. A witness may discuss his testimony given before the grand jury with counsel for a person under investigation or indicted, with the attorney general or the district attorney, or with the court.

This court has consistently held that a defendant is not entitled to production of a transcript of the secret grand jury proceedings against him. La.Code Crim.P. art. 434; State v. Sheppard, 350 So.2d 615 (La.1977); State v. Sneed, 328 So.2d 126 (La.1976); State v. Williams, 310 So.2d 528 (La.1975). The transcript may not be used at trial even in the conduct of cross-examination. The purpose of the rule is not to protect a defendant or witness at a subsequent trial, but to encourage the full disclosure of information about crime. State v. Sheppard, supra; State v. Ivy, 307 So.2d 587 (La.1975).

On the other hand, the United States Supreme Court held in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that upon request the state must produce evidence that is favorable to the accused where it is material to guilt or punishment. The Brady rule has been expanded to include evidence which impeaches the testimony of a witness where the reliability or credibility of that witness may be determinative of guilt or innocence. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Davenport, 399 So.2d 201 (La.1981); State v. Curtis, 384 So.2d 396 (La.1980); State v. Roussel, 381 So.2d 796 (La.1980). In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court stated:

In Brady the request was specific. It gave the prosecutor notice of exactly what the defense desired. Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.

An accused’s constitutional rights cannot be thwarted by state law. Hence, defendant’s specific pretrial request for the grand jury testimony of the only eyewitness in this capital case based on a claim that it conflicts with prior statement given by the witness and is therefore needed for impeachment purposes at trial cannot be rejected solely on the ground that it conflicts with state law protecting the secrecy of the grand jury proceedings. Rather, we consider that an in-camera inspection by the trial judge is a proper means of accommodating the secrecy of the grand jury and at the same time protecting defendant’s constitutional rights of confrontation and due process.

Accordingly, we must reverse the ruling of the trial judge ordering the state to turn over the transcript of the witness’ testimony before the grand jury and grant the state’s alternative demand and order the case remanded to the district court with instructions to the trial judge to conduct an in-camera inspection. On remand, the trial judge should determine whether or not the testimony of Margenette Peters before the grand jury is inconsistent with her recorded statements to the police and at the motion hearings and if so whether they are material to the issue of guilt or innocence before turning over her grand jury testimony to defendant.

REVERSED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

I concur in ordering an in camera inspection of the witness’ grand jury testimony prior to trial in this particular case, because (1) the witness is.the only eyewitness to the crime and will be the crucial witness at trial, and (2) defendant’s motion alleges facts which establish the probable impeachment value of the grand jury testimony.

The state argues that the witness’ grand jury testimony, which obviously was unfavorable to defendant, will not impeach her trial testimony and therefore is not exculpatory.

The exculpatory value of the grand jury testimony lies in its alleged inconsistency with other pretrial statements by this witness. While the other statements by the witness could be used during trial to impeach the witness’ trial testimony, without regard to how the witness testified before the grand jury, it is fundamentally unfair to require defendant to wait until the testimony (already given before the grand jury and recorded) is repeated at trial, when pretrial disclosure of the testimony (to which the witness has no objection) will afford defendant a significantly more meaningful opportunity to prepare a defense.

      . While not reflected in the record, during oral argument before this court, defense counsel asserted that Margenette Peters was the sole eyewitness to the alleged murder. The state conceded that, to the best of its knowledge, this was so.

      . 404 So.2d 1238 (La.1981).

      . At said hearing, defense counsel advanced the following argument:
      The reason we request this, your Honor, is that based on Margenette Peters’ testimony in here during the motion hearings in Willie Peters’ case, based on her statements that she made to the police when she was apprehended, and based on my interviews with her, with permission of her attorney, I believe that information she gave to the grand jury under oath will conflict with the testimony she’s given at other times, and we have a need to have this in order to defend Willie Peters at his trial; and we’d ask that the state provide the defendant with a copy of her testimony at the grand jury proceeding.


author: LEAR, Justice Ad Hoc.

text:
    STATE of Louisiana v. Kenneth WASHINGTON.
    No. 81-KA-0659.
    Supreme Court of Louisiana.
    Nov. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Patrick Leitz, Asst. Dist. Attys., for plaintiff-appellee.
    Robert Garrity, Jr., New Orleans & Joseph L. Montgomery, Metairie, of Indigent Defender Program, for defendant-appellant.
   LEAR, Justice Ad Hoc.

Defendant, Kenneth Washington, was charged by bill of information with the crime of armed robbery, a violation of R.S. 14:64. He entered a guilty plea to that charge on October 23, 1980. On that date, he was advised of his rights by the trial judge and, in connection with the plea a Boykin waiver form was executed and filed into the record. Delay in sentencing was waived by the defendant, and the trial judge imposed a sentence of ten years at hard labor. Defendant appeals on two assignments of error.

In Assignment of Error No. 1, defense counsel argues that the trial court committed reversible error in not properly advising and counseling the defendant prior to entry of his guilty plea. Defendant submits that he was not advised of his privilege against self-incrimination and his right to remain silent at trial.

According to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) a constitutionally valid guilty plea requires that the defendant expressly and knowingly waive his right to jury trial, confrontation of witnesses and privilege against self-incrimination. In Boykin the United States Supreme Court also advised (if it did not expressly require) the trial court to conduct an on-the-record examination of the defendant which should include an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences. Boykin, supra, 395 U.S. at 245 n. 7, 89 S.Ct. at 1713 n. 7 “Currently in every Louisiana felony case, the trial judge is required to articulate the three rights described in Boykin . . . . ” State v. Cusher, 400 So.2d 601 (La.1981); State v. Warren, 402 So.2d 662 (La.1981); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972). In State v. Williams, 384 So.2d 779 (La.1980) this court stated that in order to satisfy the Boykin mandate in a way which can be properly reviewed on appeal, the record should:

“.. . [cjontain on its face direct evidence that the accused was made aware by the trial judge of his right to a jury trial, his right to confront accusers, and his privilege against compulsory self-incrimination [citation omitted]. To allow any more indirect showing would be to satisfy Boykin’s requirement of an affirmative showing of defendant’s waiver of his constitutional rights by means of ‘murky memories’ — exactly what Boykin indicates is insufficient.” Williams, supra, at 781.

In the present case, the trial judge personally undertook the explanation of the nature of the crime to defendant and the consequences of pleading guilty. That explanation did not specifically address defendant’s privilege against self-incrimination at trial. Instead, after carefully explaining the right of trial by jury, and the right to confront his accusers, the trial court then asked simply, “Do you understand that by pleading guilty, you are telling this court that you have in fact committed the crime to which you are pleading guilty?” Defendant replied, “Yes.”

The record of the plea colloquy thus indicates that the trial court did not personally explain the privilege in the same kind of detail that it addressed the other Boykin rights. Instead, the court focused on the waiver of the privilege with the entry of the guilty plea. State v. Martin, 382 So.2d 933, 936 (La.1980), this court emphasized that, “. . . the choice to stand trial or not is the crux of the decision to plead guilty,” and that “[a]n accused cannot make this choice intelligently if he is unaware of the rights which he may exercise at trial.” Martin thus requires that the record adequately demonstrate not only defendant’s waiver of his right to remain silent at the plea taking, but also his “. . . intention to waive his right not to testify against himself at a trial.” Id. 382 So.2d at 936.

The record of the plea colloquy in this case may therefore be technically deficient under State v. Martin, supra. However, in State v. Dunn, 390 So.2d 525 (La.1980), this court upheld the trial court’s refusal to set aside a guilty plea although the colloquy between the trial judge and the defendant did not include an explanation to the defendant of his right against self-incrimination. This court found that the plea was constitutionally sufficient in that there was an affirmative showing in the record of an express and knowing waiver of the right. Thus, Dunn seems to hold that if there is an otherwise adequate plea waiver form in the record and the trial court has a basis for concluding that defendant has read the form, discussed it with counsel, and understood it, the conviction will be allowed to stand. Dunn signaled this court’s first retreat from a rigid application of the holding in Williams that the trial court must personally conduct the plea colloquy. In the recent case of State v. Halsell, 403 So.2d 688 (La.1981), Dunn has now taken deeper root. The opinion in Halsell reaffirms the importance of a contemporaneous record of the plea colloquy under Boykin, noting that “[w]hen the record is thus completed, the task of review is greatly facilitated, and the need for post conviction hearings is obviated.” The opinion also observes, however, that “[wjhile it is preferable for the trial judge to conduct a colloquy with a defendant to ascertain the validity of the plea, such a colloquy may not be indispensable, so long as the record contains some other affirmative showing to support the plea.”

In the instant case, defendant executed a form entitled “Defendant’s Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty.” This form (attached hereto) was signed by defendant, his attorney and the trial judge. The form advised the defendant of his privilege against self-incrimination. The defense counsel in the plea colloquy advised the court that he explained the form thoroughly to the defendant.

“MR. WEIDNER:
“Your Honor, also in connection with this matter, the Boykinization form, I have went over the form with Mr. Washington in detail. I have signed it and Mr. Washington signed it in my presence. However, I would like to inform the Court that Mr. Washington told me he can read, but he does not read very well. For that reason, I made certain to go through the form with him in detail.”

It appears from the record that there was an adequate plea waiver form in the record, and the trial court had a basis for concluding that defendant had read the form, discussed it with counsel and understood it. As Halsell, supra, notes, a trial court is entitled to rely on the representation of counsel, by way of his signature on the waiver form, and his statements in open court, that he explained fully defendant’s Boykin rights to him.

For these reasons, this assignment is without merit.

In Assignment of Error No. 2, defendant argues that the trial court erred in failing to articulate reasons for sentencing in compliance with Article 894.1 and further that the sentence imposed was excessive.

At the Boykin colloquy conducted on October 23, 1980, the trial court sought defendant’s assurance he understood that “.. . in the event I accept your plea of guilty . . . you would be sentenced as follows: ten years at hard labor without benefit of parole, probation or suspension of sentence, with credit for time served?” Defendant replied, “Yes, sir.” The printed waiver form filed into the record also reflects that understanding. At the close of the plea hearing, and after defendant waived all delays in sentencing, the trial court then made the following brief observation:

“[t]he facts of this case indicate that this defendant was the one who held the gun in connection with the armed robbery. That is a very serious offense. That the defendant is in need of correctional treatment, or custodial environment that can be provided most effectively by his commitment to an institution. That a lesser sentence would deprecate the seriousness of the defendant’s crime.”

This court has held that imposition of sentence even within statutory limits, may violate defendant’s right under the Louisiana Constitution against excessive punishment. Thus, it has been determined that excessiveness of sentence poses a question of law reviewable under the appellate jurisdiction of this court. State v. Sepulvado, 367 So.2d 762 (La.1979). The trial judge’s reasons in imposing sentence, as required by La.C.Cr.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Forshee, 395 So.2d 742 (La.1981); State v. Day, 391 So.2d 1147 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979). This court has held that a sentence may be vacated and a case remanded for resentencing when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Day, supra, 391 So.2d at 1151; State v. Daranda, 388 So.2d 759 (La.1980). The present case raises the issue of whether a trial judge can forego articulating the reasons for the sentence imposed when defendant has agreed to the recommended sentence in a plea bargain and whether such agreement precludes the defendant from attacking the sentence as excessive. The recent case of State v. Curry, 400 So.2d 614 (La.1981), answered these questions affirmatively. In Curry, defendant challenged his sentence as excessive and imposed by the court without enumerated reasons. The sentence was the result of a plea bargaining agreement and all parties agreed to the sentence to be imposed, including the trial judge, before its acceptance and imposition. This court stated that “[ujnder the circumstances we believe there was no necessity for listing enumerated reasons and that defendant cannot complain of excessive length.” See Dixon, C. J., concurring in State v. Williams, 340 So.2d 1382 (La.1976).

In this case, therefore, the trial court need not have made any of its closing remarks at the plea hearing. Standing alone, the reasons articulated by the trial court were arguably inadequate under Article 894.1 as they reflected no consideration of mitigating facts as well as aggravating circumstances. State v. Franks, 373 So.2d 1307 (La.1979). Nevertheless, they do indicate that the sentence was not imposed arbitrarily and that it was not excessive. State v. Williams, 397 So.2d 1287 (La.1981). Armed robbery is one of the most serious offenses in Louisiana. State v. Douglas, 389 So.2d 1263 (La.1980), and defendant’s sentence was only twice the minimum within a range of 99 years provided by R.S. 14:64. The trial court’s observation that defendant had been the one to wield the pistol, and thereby risk the harm that characterizes armed robbery as an offense, State v. Douglas, supra, provides a rational basis for the imposition of the sentence. Apart from the plea negotiations in the case, therefore, defendant’s sentence is not an apparently severe one, and no remand under Article 894.1 is necessary. State v. Davenport, 399 So.2d 201 (La.1981); State v. Russell, 397 So.2d 1319 (La.1981); State v. Day, supra, State v. Cox, 369 So.2d 118 (La.1979).

This assignment of error lacks merit.

AFFIRMED.

       Judges Chiasson, Edwards and Lear of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon, Justices Marcus, Blanche and Lemmon.

         In fact, in Brady v. United States, 397 U.S. 742, 747 n. 4, 90 S.Ct. 1463, 1468, n. 4, 25 L.Ed.2d 747 (1970) the Supreme Court emphasized that “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understanding^ and voluntarily.”

      . “In Martin we held that a-defect in the guilty plea to the predicate felony is a defense to a charge under LSA-R.S. 14:95.1 (being a felon in unlawful possession of firearms). However, subsequent to that decision, the United States Supreme Court held that 18 U.S.C.App. Sect. 1202(a)(1), the federal equivalent to LSA-R.S. 14:95.1, prohibits a convicted felon from possessing a firearm even if the predicate felony is subject to collateral attack on constitutional grounds. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). Thereafter, we specifically overruled Martin, but only as it relates to a charge brought under LSA-R.S. 14:95.1.