text:
    STATE of Louisiana v. James K. VARNELL.
    No. 81-K-2382.
    Supreme Court of Louisiana.
    March 1, 1982.

      J. Stacey Freeman, M. Randal Fish, Bossier City, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Anne S. Goodman, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Chief Justice.

Defendant James Varnell was charged by bill of information with possession of marijuana, in violation of R.S. 40:967. After the trial judge overruled defendant’s motion to suppress the marijuana seized from his vehicle, defendant pleaded guilty to the offense, reserving his right to seek review of the ruling in this court.

On April 29, 1981, Officers Robert Skaife and Delbert Green of the Shreveport Police Department were proceeding north on Hearne Avenue in Shreveport when Officer Skaife noticed a pickup truck in the inside lane headed in the same direction. Officer Skaife pointed out to Officer Green that defendant, who was driving the truck, was wearing a “peculiar hat” and smoke was coming out from under the brim of the hat. He asked Officer Green to pull up beside the truck so that he could get a closer look. He noticed that defendant was smoking a rather large hand-rolled cigarette. “It looked almost like it was a cigar, it was so big,” was the only other description of the cigarette. Suspecting that the cigarette was made with marijuana, the officers attempted to stop defendant, but the flashing light on their vehicle would not work. The officers sought the assistance of two other officers that were in the vicinity. While defendant was waiting for the traffic light to change to green, Officers Skaife and Green pulled their vehicle behind him and the other officers pulled in front of him. Officer Skaife got out of the vehicle and approached defendant’s truck. As he opened the door to the truck, he began to identify himself as a police officer. He placed his hand on defendant’s arm, and as defendant attempted to get out, the truck began to roll forward. Defendant tried unsuccessfully to put his other foot on the brake, but the truck struck the police car that was parked in front. Officer Skaife approached defendant again and informed him that he was being stopped “for the suspected marijuana cigarette.” Noticing the cigarette burning on the floorboard of the truck, the officer retrieved it. He also found two baggies of marijuana near the same spot. Defendant was arrested and charged with possession of marijuana.

In ruling on defendant’s motion to suppress the marijuana, the trial judge was of the opinion that there was no way the officers could have known whether the cigarette was a roll of tobacco leaves or a roll of marijuana; and although he doubted whether there existed probable cause to arrest defendant, he concluded that the officers’ conduct could be justified as an investigatory stop, from which they found the marijuana. In so doing, the trial judge attempted to distinguish the facts of this case from State v. Davis, 359 So.2d 986 (La.1978), which was relied on by defendant.

The trial judge found it significant that in the present case defendant was charged with possession of marijuana and the marijuana was actually seized, whereas in Davis the defendant was charged with possession with intent to distribute heroin although the officers stopped him for suspicion of smoking marijuana but never found the marijuana cigarette. In expressing his uncertainty as to the proper ruling, the trial judge stated:

“... This if (sic) obviously a very close case in the light that the Supreme Court of our state, in the Davis case, has already held a similiar (sic) type situation as unconstitutional. In other words, violated the right against unreasonable search and seizures. But this Court is going to give the Supreme Court, if it chooses to do so, another chance to look at that question in the light of this case for the reason that the man still had the cigarette in his possession... . ”

Here, as in Davis, the trial court failed to focus its inquiry first on the legality of the initial stop or detention of defendant. In Davis, the legality of the initial stop of the defendant was first examined. Once we determined that the initial detention was unlawful, we concluded that all evidence seized subsequent to that detention was tainted and, therefore, inadmissible.

To lawfully stop a person for investigation, the officer conducting must, at least, have articulable knowledge of particular facts which, with reasonable inferences drawn therefrom, are sufficient to provide reasonable grounds to suspect the person of involvement in criminal activity. State v. Bickham, 404 So.2d 929 (La.1981); State v. Blanton, 400 So.2d 661 (La.1981); State v. Ault, 394 So.2d 1192 (La.1981); State v. Edsall, 385 So.2d 207 (La.1980).

At the hearing on the motion to suppress, Officer Skaife testified that his attention was first attracted to defendant because of the “peculiar hat” he was wearing, and that he noticed smoke coming out from under the brim of the hat. Upon noticing that defendant was smoking a “rather large hand-rolled cigarette,” he immediately suspected that the cigarette was made with marijuana. It is on this suspicion the officers stopped defendant and seized the marijuana in question. The trial judge was apparently convinced, despite his ruling on the motion, that the officers had no way of knowing whether the cigarette was a roll of marijuana or tobacco. The officers did not testify that they possessed “articulable knowledge of particular facts” from which reasonable inferences could be drawn that defendant was actually smoking marijuana and not tobacco. Smoking a “rather large hand-rolled cigarette” is not, alone, a characteristic so restricted to marijuana smokers as to arouse reasonable suspicion of unlawful conduct. The stop and detention of defendant were unlawful, and the evidence seized as a result of that unlawful detention is inadmissible.

The state’s argument that the marijuana should, nevertheless, be admissible because it was in plain view when it was seized is rejected. But for defendant’s unlawful detention, the officers would never have observed the marijuana.

For these reasons, defendant’s plea of guilty is set aside, the ruling of the district judge on the motion to suppress is reversed, the motion to suppress is granted, and the case is remanded for proceedings not inconsistent with this opinion.

WATSON and MARCUS, JJ., dissent.

      . In State v. Davis, 359 So.2d 986 (La.1978), the defendant rode past the front of a police car at a distance of about twelve to fifteen feet. The officers observed that the defendant was smoking a hand-rolled cigarette, holding it between his thumb and index finger, a style of smoking they had observed among some users of marijuana. As they drove around the block, they observed the defendant discarding the cigarette. The officers approached the defendant and demanded to know where the cigarette was. After questioning the defendant for about three minutes, a scuffle ensued between the defendant and the officers. The defendant was subdued and handcuffed. A search of his person revealed several marijuana cigarettes in his front pocket and an envelope containing heroin in his left rear pocket. He was placed under arrest for possession of heroin and marijuana, resisting arrest and assault. Defendant was subsequently tried and convicted of the heroin charge. We reversed that conviction because the officers’ initial actions in stopping the defendant amounted to an unreasonable seizure, and, consequently, the evidence produced as a result of that seizure was tainted and inadmissible.


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    HOTEL DIEU and Seton Professional Building, Inc. v. Erroll G. WILLIAMS, Acting Director, Department of Finance, Frederick D. Rubins, Tax Collector, City of New Orleans, City of New Orleans, and Louisiana State Tax Commission.
    No. 81-C-2628.
    Supreme Court of Louisiana.
    March 1, 1982.
    William J. Guste, Jr., Atty. Gen., Louis M. Jones, Robert L. Danner, Jr., Asst. Attys. Gen., Salvador Anzelmo, City Atty., Galen S. Brown, Deputy City Atty., Joseph N. Naccari, Asst. City Atty., for defendants-applicants.
    Otto B. Schoenfeld of Denechaud & De-nechaud, New Orleans, for plaintiffs-respondents.
   WATSON, Justice.

The issue is whether a nonprofit corporation which operates an office building and parking garage adjacent to Hotel Dieu Hospital is exempt from ad valorem taxes under Art. 7, § 21(B)(1) of the Louisiana Constitution of 1974. That constitutional provision exempts “[pjroperty owned by a nonprofit corporation or association organized and operated exclusively for religious ... charitable, health ... or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or member thereof and which is declared to be exempt from federal or state income tax.”

The office building and garage are constructed on land owned by Hotel Dieu Hospital, a nonprofit corporation organized solely “for charitable, religious, and educational purposes.” Its members are the Daughters of Charity of St. Vincent de Paul. The structures are owned and operated by Seton Professional Building, Inc., a nonprofit corporation organized for charitable purposes. Any profits made by Seton go to Hotel Dieu for treatment of the indigent and other hospital activities. Seton’s membership is controlled by Hotel Dieu. It is an alter ego of the hospital. The Seton Corporation has operated at a deficit since the building opened in January of 1976. Both Seton and Hotel Dieu are exempted from federal and state income taxes.

There are sixteen tenants in the Seton building. Seton leases space only for medical purposes; nonmedical applications have been rejected. All the individual physicians in the Seton Building are members of the medical staff of Hotel Dieu. Ninety percent of these physicians send all of their patients to Hotel Dieu and the other ten percent send a substantial portion to Hotel Dieu. Other tenants consist of the New Orleans Academy of Ophthalmology, a pharmacy, two laboratories and LSU’s private medical clinic which occupies two floors. Of the eighty-five doctors staffing the LSU clinic, sixty-four are members of the medical staff of Hotel Dieu. The hospital works closely with LSU in medical education including internships, residencies, and fellowships in surgery, renal medicine, orthopaedics, arthritis, family practice, internal medicine and urology.

A restaurant is the only Seton tenant with nonmedical activities. It is described as a necessary eating facility for physicians, staff members, patients and their families. The parking garage is open to the public, but its customers are primarily those who have business at the hospital or the professional building. Of its two hundred and eighty-one spaces, one hundred and eighty-one are contracted by physicians and other employees at Hotel Dieu, LSU and Seton.

Hotel Dieu and Seton brought suit to recover ad valorem taxes assessed against Seton and paid under protest to the City of New Orleans. The trial court held that the Seton Building was not exempt from ad valorem taxes because it was not exclusively operated for tax exempt purposes. The Court of Appeal reversed. Hotel Dieu v. Williams, 403 So.2d 1255 (La.App. 4 Cir. 1981). A writ was granted to review the judgment. 409 So.2d 646 (La.1981).

The Court of Appeal quoted from the records of the Louisiana Constitutional Convention of 1973. These transcripts establish that an operation owned by a nonprofit corporation can retain its exemption even though some of its activities can be classified as commercial. One factor in determining exemption is location of the commercial activity. It is more easily classified as related to the exempt purpose if it is in an adjoining facility, like that here. These adjacent buildings are obviously related to the exempt purposes of the hospital.

The Seton Corporation’s structures are owned, operated, leased and used for purposes related to the exempt purposes of the Hotel Dieu Hospital. None of the earnings inure to the benefit of any private shareholder and the income of Hotel Dieu and the Seton Corporation is exempt from federal and state income taxes. The property in question meets the criteria of Article 7, § 21(B)(1) of the Louisiana Constitution of 1974, and is exempt from ad valorem taxes.

For the foregoing reasons the judgment of the Court of Appeal is affirmed.

AFFIRMED.


author: CALOGERO, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. John A. FONTENOT.
    No. 81-K-2809.
    Supreme Court of Louisiana.
    March 1, 1982.

      Steven L. Mayer of Hamilton & Mayer, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Aubert D. Talbot, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

The principal question presented in this case is whether the trial judge erred in refusing to suppress marijuana and a controlled dangerous substance (diazepam) found , on defendant’s person following his arrest for disturbing the peace while attending the 1981 Jambalaya Festival in Gonzales, Louisiana. The answer to the above question turns upon whether the Gonzales police officer made a lawful arrest.

Procedurally, the case comes to us as a Crosby appeal. State v. Crosby, 338 So.2d 584 (La.1976). Following the trial judge’s denial of the motion to suppress, defendant entered conditional guilty pleas to possession of marijuana (La.R.S. 40:967), possession of the controlled dangerous substance, diazepam, (La.R.S. 40:969) and disturbing the peace (La.R.S. 14:103, subd. A(2)). Each of these pleas was entered with a reservation of the right to seek review of the adverse ruling on the motion to suppress. We granted defendant’s application for writs. State v. Fontenot, 409 So.2d 631 (La.1981).

The trial judge’s ruling might have been based upon an unsound premise, that is, that defendant had failed to produce proof of what, or indeed that anything, was seized from him. On the other hand, the trial judge’s comment that there was “ample probable cause to arrest [defendant]” for disturbing the peace indicates to us that he also ruled on the legal issue raised by the motion to suppress: that is, that seizure of the drugs was legal.

According to the testimony of the Gonzales Chief of Police, the Gonzales Police Department had a long-standing rule that those attending the Jambalaya Festival must wear shirts “to preserve the integrity and morality of the festival.” Chief Bo-urque said that this rule had been in effect since the festival began some twelve or thirteen years prior to 1981.

The arresting officer, one Israel Moreno, was perhaps under the mistaken impression that there existed a city ordinance which required that shirts be worn, for it was his testimony that pursuant to that ordinance he several times instructed defendant to put his shirt on. Defendant’s neglect to keep the shirt on gave rise to the confrontation which resulted in his arrest for disturbing the peace. On the third occasion when Officer Moreno told him to put his shirt on (which defendant testified occurred as he was leaving the Festival via the main gate), defendant exhibited his displeasure at being so told by “hollering and cursing,” according to the officer.

The bill of information charges defendant with having violated La.R.S. 14:103, subd. A(2), disturbing the peace. That statute reads in pertinent part:

A. Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public:
(2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty;

Defendant’s application raises several issues concerning the arrest for disturbing the peace. Defendant questions whether “hollering and screaming” at an officer violates the statute. He further questions whether his actions were done in such a manner as would foreseeably disturb or alarm the general public. Additionally, defendant argues that a person can legally resist unlawful interference with his personal liberty. Finally, defendant questions whether his words were offensive, derisive or annoying as required by the statute, that is, whether they were intended to deride, offend or annoy the officer or to prevent him from performing his duties.

We find it unnecessary, however, to answer these questions, for it is evident from the record that the policeman did not arrest defendant because defendant’s conduct was likely to disturb or alarm the public; nor because he felt that defendant’s cursing and hollering did, in fact, disturb the peace. Rather, this arrest occurred because defendant refused to comply with the officer’s command to put on his shirt and keep it on. Officer Moreno made the arrest because defendant was challenging his authority.

Officer Moreno’s testimony makes this clear. He testified that after he had told defendant to put on his shirt or leave, defendant responded that he was going to do neither. Officer Moreno said that he informed defendant “if you don’t leave I’m going to place you under arrest for disturbing the peace.” According to the policeman, defendant “told me I couldn’t place him under arrest, and I couldn’t make him leave.” Officer Moreno continued his testimony by saying that defendant then began cursing him out and “well I wasn’t gonna accept it.”

The foregoing convinces us that defendant’s arrest was thus not legal. There was no ordinance banning shirtlessness and defendant was not really arrested for disturbing the peace, even assuming that he could constitutionally have been so arrested. Consequently, the marijuana and diazepam were not found during a search incident to a lawful arrest and must be suppressed.

There remains for our consideration the matter of defendant’s guilty plea to the disturbing the peace charge. There was a single hearing, which, as is evident from the transcript, was on the motion to suppress. The evidence in that connection necessarily included evidence concerning defendant’s “disturbing the peace.”

After the trial judge denied the motion to suppress, defense counsel observed that defendant would change his plea to guilty “at this time” with the “reservation of our rights to file writs, and appeal the ruling of the court on the motion to suppress.”

Technically it is possible for defendant to enter a valid guilty plea on the disturbing the peace charge while protesting that there had been an unlawful arrest simply for purpose of the motion to suppress. However, the transcript makes it evident that defendant was entering a simultaneous plea of guilty to all three charges with the reservation of having all three convictions set aside, should he be successful on review in having the trial judge’s denial of the motion to suppress reversed. Under these circumstances we determine that defendant’s guilty plea to disturbing the peace was not voluntary or made unconditionally and must be set aside.

jDecree

For the foregoing reasons, the trial judge’s ruling on the motion to suppress is reversed. Defendant’s guilty pleas are vacated and the case remanded to the trial court for such further proceedings as may be appropriate.

REVERSED AND REMANDED.

LEMMON, Justice,

dissenting.

Officer Moreno did not arrest defendant when he refused to put on his shirt, but only after he cursed and yelled at the officer who was trying to control crowd behavior. Cursing and yelling at a policeman in a crowd is very inciting conduct and constitutes perhaps one of the worst forms of alarming or disturbing the public.

The majority seems to suggest that defendant’s conduct, even if alarming to the public, was justified under the circumstances. Although Officer Moreno arguably gave defendant an illegal command to put on his shirt (since he mistakenly believed there was a city ordinance requiring the wearing of shirts), defendant’s behavior was hardly justified as a reasonable or lawfully acceptable response to the officer’s illegal command. If defendant had peacefully ignored the officer’s command and had been arrested, defendant would clearly not be guilty of disturbing the peace, and the arrest (for refusing to obey the illegal command) would be unlawful. However, if defendant had punched the officer in response to the illegal command, he would surely be guilty of simple battery and could have been lawfully arrested for that offense.

Here, defendant decided wrongfully to disturb the peace, rather than to challenge the officer’s authority by appropriate lawful means. In my opinion Officer Moreno properly arrested defendant on account of this conduct, and the drugs were validly seized incident to that lawful arrest.

      . A plea of guilty generally waives all non-jurisdictional defects in the pre-plea proceedings. However, by virtue of this Court’s decision in State v. Crosby, 338 So.2d 584 (La.1976), a defendant may condition his plea upon the reservation for appellate review of specified pre-plea errors. In the present case defendant reserved his right to obtain review of the trial court’s denial of his motion to suppress. See also State v. Aguillard, 357 So.2d 535 (La.1978).

      . At the time of the hearing on the motion to suppress, defendant had not yet received discovery answers from the state. He had, however, been served with a report from the State Police Crime Laboratory, showing that the materials submitted for analysis had been determined to be marijuana and diazepam. Furthermore, it is evident from the colloquy among the prosecutor, defense counsel and the judge that the motion to suppress was directed at the marijuana and drugs which were the object of the possession charges. The prosecutor informed the court that subsequent to defendant’s arrest, he was taken to the jail and during an inventory search marijuana and drugs were found.

      . Defendant relies upon City of Monroe v. Ducas, 203 La. 971, 14 So.2d 781 (1943), in which we said:
      The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary. 14 So.2d at 784.
      Accord: White v. Morris, 345 So.2d 461 (La. 1977).

      . The record before us does not contain the words defendant is alleged to have said to Officer Moreno. We therefore cannot make an independent determination whether these words are “offensive, derisive, or annoying” as required by the statute. However, we do observe that in City of New Orleans v. Lyons, 342 So.2d 196 (La. 1977), we found that the epithets “S_” and “F_you” were not words which, when addressed to a policeman would normally incite the officer to an immediate breach of the peace. We noted Justice Brennan’s concurrence in Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), to the effect that a police officer is trained to exercise a higher degree of restraint than the average citizen.

      . Cases such as White v. Morris, 345 So.2d 461 (La. 1977), have upheld the right to resist an unlawful arrest. However, these cases should not be expanded to immunize unjustified criminal behavior in response to “unlawful commands” given by officers.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Stewart MARSHALL.
    No. 81-K-2856.
    Supreme Court of Louisiana.
    March 1, 1982.

      Samuel Thomas, Tallulah, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James D. Caldwell, Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice.

Stewart Marshall was charged in the same information in separate counts with malfeasance in office in violation of La.R.S. 14:134 and with making a false allegation concerning the commission of a crime in violation of La.R.S. 14:126.1. After trial by a jury composed of six persons, defendant was found guilty as charged on both counts. Prior to sentencing, we granted defendant’s application for certiorari to consider a contention that the trial judge erred in excusing a juror for cause after having been accepted and sworn and replacing the excused juror with an alternate juror on the panel. La., 409 So.2d 631. Defendant argues that the action of the trial judge was contrary to certain decisions of this court.

After voir dire examination of prospective jurors, six jurors and one alternate were selected and sworn. The court then took a short recess. While the jury was still in recess, the state made a motion to challenge one of the jurors, Ms. Idell Rice, for cause on the ground that the juror was not impartial. It was argued that the ground for the challenge was not known to the state prior to acceptance. An eviden-tiary hearing was conducted outside the presence of the jury. Testimony of witnesses was to the effect that during the recess Ms. Rice was seen talking to the defendant in the hallway. She was also heard to say that “she was the only black on the jury and that she was going to hold everything up.” At the conclusion of the hearing, the trial judge sustained the state’s challenge for cause of Ms. Rice and replaced her on the jury with the alternate juror, Mrs. Elizabeth Cunningham. Defendant’s objection was overruled and his motion for a mistrial was denied. At this point, the trial proceeded with the reading of the information and defendant’s plea on arraignment to the jury.

The narrow issue presented for our consideration is whether a juror who has been accepted and sworn can be challenged for cause before the indictment is read to the jury on a ground not known by the challenging party prior to acceptance and, if so, whether the excused juror can be replaced on the jury with an alternate juror. We think so.

La.Code Crim.P. art. 795 provides in pertinent part:

A juror cannot be challenged for cause by the state or the defendant after having been accepted by the challenging party, unless the ground for the challenge was not known by the challenging party prior to acceptance. A challenge for cause must be made before the indictment [] is read to the jury.

La.Code Crim.P. art. 797 provides in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality.. ..

In the instant case, the challenge for cause of Ms. Rice was made by the state before the bill of information was read to the jury and the ground for the challenge of this juror was not known to the state prior to acceptance. Hence, it is clear under art. 795 that the state had a right to challenge Ms. Rice for cause. Moreover, we consider that the trial judge properly excused Ms. Rice for cause under art. 797(2) because the evidence was sufficient to conclude that the juror was “not impartial.” Even if the challenge for cause was improperly granted, defendant would have no cause for complaint because the state exercised only four of its six peremptory challenges allowed under art. 799. La.Code Crim.P. art. 800 provides that the erroneous allowance to the state of a challenge for cause does not afford the defendant a ground for complaint, unless the effect of such ruling is the exercise by the state of more peremptory challenges than it is entitled to by law.

Having concluded that the trial judge properly sustained the state’s challenge of Ms. Rice for cause, we must next consider whether the trial judge correctly replaced the excused juror with the alternate juror.

La.Code Crim.P. art. 789 provides in pertinent part:

The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who become unable to perform or disqualified from performing their duties prior to the time the jury retires to consider its verdict....

We consider that a finding that Ms. Rice was properly excused for cause on the ground that she was “not impartial” rendered her “unable to perform or disqualified from performing” her duties within the meaning of the above article. Hence, the trial judge properly replaced Ms. Rice with the alternate juror.

Defendant relies on this court’s decision in State v. Rounsavall, 337 So.2d 190 (La.1976), in which, under facts similar to those herein, we reversed the conviction and sentence on the ground that the trial judge erred in excusing the juror and allowing an alternate juror to serve in his stead. In State v. Buggage, 351 So.2d 95 (La.1977), under similar facts, we followed our previous holding in Rounsavall and reversed the conviction and sentence. Both Rounsavall and Buggage are contrary to our holding in the instant case. Accordingly, they are expressly overruled.

DECREE

For the reasons assigned, the writ previously granted is recalled and vacated and the case is remanded to the district court for further proceedings in accordance with law.

      . La.Code Crim.P. art. 782 provides that cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.

      . La.Code Crim.P. art. 461 defines “indictment” to include affidavit and information, unless it is the clear intent to restrict that word to the finding of the grand jury.

      . La.Code,Crim.P. art. 799 provides:
      In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant. In all other cases, each defendant shall have six peremptory challenges, and the state six for each defendant. (Emphasis added.)


author: DIXON, Chief Justice.

text:
    LOUISIANA & ARKANSAS RAILWAY COMPANY and Missouri Pacific Railroad Company v. LOUISIANA PUBLIC SERVICE COMMISSION Luria Brothers Company, Inc., Intervenor.
    No. 81-CA-3011.
    Supreme Court of Louisiana.
    March 1, 1982.

      John S. Odom, Jr., of Wilkinson & Carmo-dy, Shreveport, Robert K. Dreiling, John P. Legendre, Dallas Tex., for plaintiffs-appellants.
    Marshall B. Brinkley, Baton Rouge, for defendant-appellee.
    Edward B. Poitevent, II, and Raymond J. Salassi, Jr., of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for intervenor.
   DIXON, Chief Justice.

This controversy involves a dispute over the correct freight charges for certain shipments of scrap iron and steel over a wholly intrastate route.

On December 27, 1978, Luria Brothers & Company, Inc. filed a complaint with the Louisiana Public Service Commission challenging the freight charges imposed by the carriers. Luria alleged that the railroads improperly computed the rates by figuring in increases in the interstate rate which had not yet been approved by the LSPC with a letter-number supplement. The LPSC sustained Luria’s complaint in Order No. T-14090 with this statement:

“... The carriers have published ex parte items in their tariffs showing how these increases are to be applied.
The railroads are required to assess charges in accordance with their tariffs on file with the Commission and, in view of the evidence present in the record after hearing of the matter, it is ORDERED that the complaint is sustained.”

The Commission pointed out that by the language of the tariffs themselves, the increases will not apply on intrastate traffic “until authorized by letter-number (e.g., K-l, K-2, etc.) supplements.... ”

Pursuant to R.S. 45:1192, the railroads petitioned the Nineteenth Judicial District Court for review of the LPSC’s ruling. Luria intervened in the suit as a party defendant. The district court upheld the ruling of the Commission, finding no abuse of authority. An appeal to this court was then perfected by the carriers. See Art. 4, § 21(E) La.Const.1974; Louisiana Power & Light Co. v. Louisiana Public Service Commission, 369 So.2d 1054 (La.1979).

The parties stipulated to the following facts at the hearing before the Commission:

During February, March, April and May, 1977, the Missouri Pacific Railroad Company and the Louisiana & Arkansas Railway Company transported 104 carloads of scrap iron and steel from Avondale, Louisiana to Shreveport, Louisiana for Luria. The railroads billed Luria at a rate of $12.96 per Net Ton, calculated according to Southwestern Lines Tariff Bureau 2004-J, ICC 5160, Supplement 85, Item 13050-E, Commodity Rate Column 169 (tariff SW 2004-J). The rate took into account ex parte increases as of the date those increases became effective for interstate transportation even though the increases had not yet received letter-number supplements by the Louisiana Public Service Commission. Luria paid the freight charges on these shipments under protest, claiming an overcharge of $8129.01. The L & A refunded $1129.98 (because of an error in the weight of the shipments), leaving a sum of $6999.03 allegedly due Luria. An additional 286 carloads of scrap iron and steel were shipped for Luria from Avondale to Shreveport between May, 1977 and October, 1978. Luria paid an amount lower than that charged by L & A, computing the freight rate on the base tariff plus only those ex parte increases which had been approved by the LPSC with letter-number supplements. L & A claimed a balance due of $16,413.32.

J. S. McAndrew, the general traffic manager for Luria, testified that language in tariff SW 2004-J states that the ex parte increases will not take effect on intrastate movements until authorized by state regulatory bodies as letter-number supplements. Their interpretation of the tariff was that the master tariff level would continue to govern with regard to intrastate shipments until the local agency sanctioned the increases.

Luria also introduced into evidence an order by the LPSC on May 25, 1979 in a matter entitled Georgia Pacific Railroad Company v. Missouri Pacific Railroad Company and Illinois Central Gulf Railroad, T-14112. In that case, the complainant alleged that the carriers were charging rates in excess of the allowable rate under the filed tariffs. The Commission sustained the complaint, citing rule 55-h. The LPSC observed that the ex parte items in the tariffs are often made effective several months before the filing or effective date of similar intrastate increases. As in the instant case, the LPSC refused to allow the railroads to impose the higher rate until it had been approved for intrastate traffic.

In order to understand the issue in this case, a discussion of the formulation of rates for common carriers is necessary. The allowable freight charges for shipments carried by the railroads are published in tariffs. The railroads propose rates to the ICC; if the ICC adopts the carriers’ proposals, the rates are set forth in tariffs. Tariff SW 2004-J contains commodity rates for goods shipped in interstate commerce. Periodically, the railroads seek an increase in the tariff levels from the ICC. After a hearing, the ICC will decide whether to approve the recommended increase. If it is approved, the increase, termed “ex parte increase_” (e.g., X 343), will become the effective rate for interstate transportation. The carriers may then petition the appropriate state regulatory body to apply this increase to intrastate rates. If the increase is approved, a “letter-number supplement” is issued by the state agency. In the present case, certain ex parte increases, approved by the ICC, had not yet been published on the date of the contested shipments.

The railroads argue that there is only one interstate rate on any given day and that it is figured as the base level plus all ex parte increases, whether or not the increases have been adopted by the LPSC in letter-number supplements. It is their contention that the LPSC’s ruling effectively creates three rates: the intrastate rate, the true interstate rate (base rate plus all ex parte increases), and another interstate rate made up of the base rate plus ex parte increases approved by the LPSC in letter-number supplements. It is suggested that the purpose of rule 55-h is to insure parity between interstate and intrastate shippers. By allowing intrastate shippers the benefit of the lower interstate rate, the rule insures that the intrastate shipper will pay only the same rate as the interstate shipper. The railroads urge that this policy will be violated if the ex parte increases approved by the ICC are not considered in arriving at the interstate rate, and that not including the increases results in greater disparity between the higher intrastate rate and the already lower interstate rate.

On the other hand, Luria and the LPSC contend that language in the tariff indicates that the correct interstate rate for purposes of rule 55-h is composed of the base level plus those ex parte increases approved by the LPSC in letter-number supplements. Moreover, the shipper asserts that an exception printed in each ex parte increase, put there by the railroads themselves, unequivocally states that the ex parte increases will not be considered in setting intrastate rates until implemented by the letter-number supplements. Luria points out that it is the responsibility of the carriers to petition the Commission for ex parte increases. To allow the carriers the benefit of the increases immediately upon approval of the ICC would circumvent the function of the LPSC to sanction those increases for intrastate traffic.

To compute intrastate rates, rule 55-h, promulgated by the LPSC pursuant to its constitutional grant in Art. 4, § 21(B) La. Const.1974, provides:

“... where two or more freight rates on the same commodity apply for intrastate application, except on petroleum and its products, between points in the State of Louisiana, the lower rate shall in all instances be applied for intrastate applica-tion_” Order 57, August 27, 1922.

The parties stipulated that the interstate rate was lower at all pertinent times than the corresponding intrastate rate. Thus, under rule 55-h, the interstate rate would apply to the shipments; the question becomes a determination of the correct interstate rate on the date of shipment.

Item 650 explains application of the tariff to intrastate traffic:

“Except where expressly provided to the contrary in individual items or in connection with particular rates, this tariff applies on intrastate traffic only in the States of Arkansas, Louisiana (Notes 1 and 2), Missouri, New Mexico and Oklahoma.
This tariff does not apply on Texas intrastate traffic.
NOTE 1 — Rates and charges determined by use of ‘Commodity Rate Column’ published in this tariff have application on Louisiana intrastate traffic only when interstate rates or charges are observed as a maximum on Louisiana intrastate traffic in accordance with terms of Rule 55(h) of the Louisiana Public Service Commission.
NOTE 2 — Rates apply not subject to Louisiana Public Service Commission Rules 60a, 64a and 64b.”

In all pertinent ex parte increases, the following exception is found:

“EXCEPTION 1 — The provisions of this item will NOT apply: (Note 1)
(a) On Intrastate traffic moving between points in and transported wholly within any State, nor to rates or charges on intrastate traffic ... until authorized by letter-number (e.g., K-l, K-2, etc.) supplements to Tariff of Increased Rates and Charges X-330, referred to above, which shall specify the increases applicable to such rates and charges, and which shall be filed with the Interstate Commerce Commission and State Commissions. NOTE 1 — Reference to Item 20255 formerly shown and not brought forward herein is hereby eliminated; no application.
EXCEPTION 2 — The provisions of this item will not apply on rates in Part 2 of Item 19800.”

An order of the Commission will not be overturned unless it is shown to be arbitrary, capricious or abusive of its authority. While a decision of the Commission may be deemed arbitrary unless supported by some factual evidence, when there is some evidence upon which the Commission could reasonably base its determination, this court will not upset the Commission’s ruling. Central Louisiana Electric Co. v. Louisiana Public Service Commission, 370 So.2d 497 (La.1979); South Louisiana Electric Cooperative Assn. v. Louisiana Public Service Commission, 367 So.2d 855 (La.1979); Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972). Upon judicial review a court will not disturb orders such as the one in this case unless after looking at the evidence it concludes that the Commission’s action was arbitrary, capricious and a clear abuse of its power. Dreher Contracting & Equipment Rental v. Louisiana Public Service Commission, 396 So.2d 1265 (La.1981); Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644 (1965); Rubion Transfer & Storage Co. v. Louisiana Public Service Commission, 240 La. 440, 123 So.2d 880 (1960); Comment, The Scope of Judicial Review of Administrative Agencies in Louisiana, 33 Tul.L.Rev. 200, 205 (1958).

It is well settled that the carriers have a duty to adhere to the tariff schedules and may not charge a different compensation than the applicable rates permit. Despite the clear wording of the above language, the carriers attempted to charge a greater rate than is permissible under the rate schedules. The LPSC expounded on its order in a reply memorandum filed in the district court thusly:

“The Commission has merely held that a brand new rate, or a changed rate found in SWFB 2004 J is, by the wording of the tariff itself, not applicable to rates and charges on intrastate traffic until the railroads have published and been authorized to use that new or changed rate by letter-supplement.”

This record contains sufficient evidence upon which the Commission could reasonably conclude that only those ex parte increases approved by it would be computed into the interstate rate for purposes of rule 55-h. The language in Item 650 coupled with the exception repeated in each ex parte increase makes it clear that the increases will not apply to the interstate rate for intrastate transportation. Only those increases approved by the LPSC in letter-number supplements may be added to the base level under tariff SW 2004-J. Therefore, the Louisiana and Arkansas Railway Company and the Missouri Pacific Railroad Company erroneously computed the interstate rate when they included ex parte increases which had not been implemented by letter-number supplements on the date of shipment.

The order of the Louisiana Public Service Commission and the judgment of the district court are affirmed at appellants’ cost.

CALOGERO, J., concurs.

LEMMON, J., dissents.

      . R.S. 45:1192 provides:
      “If any of the persons, mentioned in R.S. 45:1191, or other party in interest, shall be dissatisfied with any order entered by the commission, adopting, fixing, changing, altering, or modifying, any rate, classification, rule, charge, or general regulation, the dissatisfied person may, within three months after the order made by the commission becomes effective, file in a court at the domicile of the commission, a petition setting forth the particular cause of objection to the order or regulation of the commission complained of. All such cases shall be tried in the same manner as civil cases and shall be given precedence over all other civil cases in the court, and shall be heard and determined as speedily as possible. The court may affirm the order of the commission complained of, or it may change, modify, alter, or set it aside, as justice may require.”

      . The parties stipulated to the following increases and effective dates which are reproduced here in graph form for simplicity:

      . Luria paid the freight bills at these levels: from May, 1977 to November 13, 1977, $11.87 NT under ex parte 313; from November 13, 1977 to February 22, 1978, $12.34 NT under ex parte 336-A; from February 22, 1978 to July 1, 1978, $12.96 NT under ex parte 330-A; from July 1, 1978 to September 1, 1978, $13.61 NT under ex parte 343; from September 1, 1978 to October 6, 1978, $13.35 NT under ex parte 349 (due to rollback).

      . The carriers assert that this “lag time” between passage of an ex parte increase by the ICC and a correlative increase on intrastate rates by the LPSC is solely the fault of the Commission. While there is evidence in the record that the LPSC may be slow to act in certain situations, the record also indicates that the railroads often fail to request a letter-number supplement within a short time after ICC approval of the increase. It is up to the carriers to petition the LPSC for supplements; the agency will not raise the intrastate rates before it is asked to do so.

      . The Commission recognized this policy in its order. It noted that rule 55-h is applied in instances such as the present case when the only applicable intrastate rate is a class rate.
      “... Disparities in the level of rates occur in connection with Ex Parte General increases which generally are made effective on an interstate basis several months prior to the effective date or filing of an application for like increases on intrastate traffic.... ” Order No. T-14090.
      The applicable intrastate rate is a class rate and the applicable interstate rate is a commodity rate. Commodity rates are generally lower than class rates; they are usually established when a shipper requests such a rate for a certain product from a carrier. Due to competition among various means of transport, the carrier may find it advantageous to seek a commodity rate from the regulatory body in order to be competitive for the shipper’s business. There is no commodity rate on file with the LPSC for scrap iron and steel; commodity rates do exist for caustic soda, pulpwood, sugar cane, and sand and gravel. The parties estimated that the class rate for scrap iron and steel would be $25.00 NT.

      . The duty of a common carrier has been voiced as follows:
      “... By virtue of the Interstate Commerce Act, common carriers have the duty to adhere to the tariff schedules and may not charge a greater or lesser or different compensation for the transportation of property than the rates applicable to such transportation as specified in such schedules. The rates named in the schedule become the legal rate for the services rendered and must be charged by the carrier and paid by the shipper or consignee without deviation therefrom....” Haskins Trucking Co. v. Lynn Lake Transportation Co., 350 So.2d 964, 966 (La.App.1977).


author: WATSON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Ronnie BAILEY.
    No. 81-K-2173.
    Supreme Court of Louisiana.
    March 2, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Oliver Johnson, Louise S. Korns, Asst. Dist. Attys., for plaintiff-relator.
    A. Miles Pratt, III, Metairie, for defendant-respondent.
   WATSON, Justice.

The issue is whether the police acted reasonably in confiscating a battery charger from defendant, Ronnie Bailey. USCA-Const.Amends. 4 and 14; LSA-Const.Art. 1 § 5.

At approximately 1:15 A.M. on June 16, 1981, Officer Ronald Jenkins and his partner were in a patrol car at the intersection of Prytania and Terpsichore Streets in New Orleans. The streets were deserted at that hour. The officers’ attention was attracted by a couple walking on Terpsichore Street. The man was pulling or rolling a “commercial-sized” battery charger of a type generally seen in a garage or service station. After the police car went around the block, the officers observed the couple proceeding at a faster pace with the man carrying the battery charger on his back. The officers interviewed the two people. The man said he was Arthur Williams, a resident of Algiers, but could furnish no identification. The woman also could not furnish identification and stated that she was a drug addict. Neither owned an automobile. The battery charger was said to have been borrowed from Ike’s Garage on Carondelet Street at 1:00 P.M. the day before. Ike’s Garage, only two blocks away, was closed. The responses made were described as babbling and incoherent. Since there was no reasonable explanation of why these two people without an automobile were carrying a borrowed battery charger through the streets at 1:00 A.M., the officers attempted a computer check to see if the battery charger was stolen. The computer was out-of-order. The officers then confiscated the battery charger and gave a receipt to the man identified as Arthur Williams. Williams was advised that the battery charger could be retrieved from the police evidence and property room. Subsequently, it developed that the battery charger was stolen and defendant, Ronnie Bailey, alias Arthur Williams, was charged with two counts of simple burglary. Defendant’s motion to suppress the battery charger was sustained by the trial court and a writ was granted to consider the ruling. 405 So.2d 322 (La.1981).

There is some question whether the initial encounter between the couple and the officers constituted an investigatory stop. “A ‘stop’ involves an element of force or duress, temporary restraint of a person’s freedom to walk away.” State v. Salazar, 389 So.2d 1295, at 1298 (La.1980). There is no indication of coercion; there was no search and no physical contact. Even if characterized as a “stop”, it was permissible in view of the unusual conduct exhibited by the defendant and his companion. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The officers naturally wondered why a machine usually found at a place of business was being transported down the street in the early morning hours. When the couple quickened their pace and changed the mode of transporting the battery charger, there was further ground for suspicion. Possible criminal activity was manifest from the time of night, the unusual activity and the suspects’ reaction to police observation. United States v. Cortez, 449 U.S. 411 at 417, 101 S.Ct. 690 at 695, 66 L.Ed.2d 621 at 629 (1981); State v. Abadie, 390 So.2d 517 (La.1980). Compare Daugherty v. United States, 272 A.2d 675 (D.C.App.1971) where the seizure took place at 2:30 P.M. and the item itself, a television set, was commonplace.

After the investigatory stop, the officers received a confused and unbelievable explanation of the suspicious circumstances. The suspects could not relate their activity to any innocent purpose. The account of a loan from Ike’s Garage could not be corroborated, and the purpose of such a loan was not explained. Although no report of a theft was available, absence of a reported crime at the time of an investigation does not determine the constitutionality of police conduct. State v. Abadie, supra. Jenkins v. United States, 284 A.2d 460 (D.C.App. 1971); Wray v. United States, 315 A.2d 843 (D.C.App.1974).

Defendant did not claim that he owned the battery charger, but alleged that it was “borrowed”. Evidence that an item belongs to a third party is significant in determining whether an inference of theft is reasonable. United States v. Wallace, 283 A.2d 32 (D.C.App.1971).

“... [S]ome seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity.” Michigan v. Summers, 452 U.S. 692 at 699, 101 S.Ct. 2587 at 2592, 69 L.Ed.2d 340 (1981). Thus a temporary “seizure” of a person may be made without the degree of probable cause which would justify an arrest. Terry, supra; Michigan v. Summers, supra. Such a seizure is justified when there is a reasonable belief of criminal activity. Similarly, a police officer with a reasonable belief that certain property has been stolen can temporarily detain that property until its ownership can be determined. Such a temporary seizure does not necessarily require probable cause.

In a similar situation, it has been held that there was probable cause for an arrest and seizure. Brooks v. United States, 159 A.2d 876 (D.C.Mun.App.1960). In Brooks, an officer observed two men with prior larceny convictions carrying a record player through the streets. After inconsistent and contradictory answers to questions, the officer arrested both men and seized the record player. Suspicious activity followed by a patently implausible explanation can establish probable cause for arrest. Nixon v. United States, 402 A.2d 816 (D.C.App.1979).

The officers, in confiscating the battery charger, picked the lesser intrusion on defendant’s right to be let alone. There were exigent circumstances. The property was being moved, and neither of the parties could furnish any identification. “[T]he scope of the particular intrusion, in light of all the exigencies of the case, [is] a central element in the analysis of reasonableness.” Terry, supra, footnote 15, 392 U.S. at 18, 88 S.Ct. at 1878, 20 L.Ed.2d at 904.

The officers reasonably inferred that this property was stolen. It was properly confiscated. “The less intrusive course can hardly render illegal a seizure which could have been made incident to a valid arrest.” Dissent in United States v. Panned, 387 A.2d 736 at 738 (D.C.App.1978). The fact that the officers did not make an arrest does not give defendant ground to complain about seizure of the “borrowed” property. A suspect has no constitutional right to be arrested as soon as the police have probable cause to do so. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

For the foregoing reasons, the ruling of the trial judge is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

DIXON, C. J., concurs.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs with reasons.

CALOGERO, Justice,

concurring.

I concur in the majority opinion because I believe that where, as here, there was probable cause to make a warrantless arrest coupled with sufficient exigent circumstances to justify a warrantless seizure of property, the seizure alone was not illegal because not simultaneous with an arrest.

The officers saw the defendant walking along at 1:00 a. m. pushing a battery charger. As they circled the block the defendant had picked up the battery charger on his back to quicken his pace. This provided more than reasonable cause for the officers temporarily to detain the suspect and question his actions. La.C.Cr.P. art. 215.1. At that time, defendant gave unclear answers, with no reasonable explanation of his actions. He stated that the battery charger was “borrowed” from the service station, which was at that time closed preventing verification of the claim. Defendant stated that he lived across the river and had no explanation for why he was on this side of the river. Finally, defendant was in possession of a battery charger, but stated that he had no automobile and provided no explanation of why he had the battery charger. He also could not produce any identification.

Based on these circumstances, it appears that the officers had the requisite probable cause to make a legal arrest of this defendant and, of course, an accompanying seizure of the battery charger. The fact that the officers chose a less intrusive alternative, to seize the battery charger, giving the suspect a receipt, without making the arrest, where the arrest was also justified, does not make the seizure of the battery charger illegal. For these reasons, I concur.

      . The trial court noted: “... it’s an injustice to sustain this motion to suppress.... ”

      . Compare State v. Sinclair, 523 P.2d 1209, 11 Wash.App. 523 (1974) where dicta indicates that probable cause is necessary to support such a seizure.

      . LSA-C.Cr.P. art. 215.1, Louisiana’s “stop and frisk” law, provides as follows:
      “A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.
      “B. When a law enforcement officer has stopped a person for questioning pursuant to this Article, and reasonably suspects that he is in danger of life or limb, he may search the outer clothing of such person for a dangerous weapon or for any other thing the possession of which may constitute a crime.
      “C. If the law enforcement officer finds a dangerous weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”
      Section B, supra, provides that a policeman, in fear of life or limb, may search for dangerous weapons or anything else “the possession of which may constitute a crime”. Under Section C, the fruit of such a search may be retained during questioning, but the officer must then either return the item or arrest the person. Section C of the statute relates back to Section B, which primarily concerns weapons. Indeed, unless an officer has reason to believe that a suspect is armed and dangerous, the search is unconstitutional. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); State v. Bolden, 380 So.2d 40 (La.1980). The only purpose justifying Sections B and C is the protection of fearful officers during the course of questioning. Sibron, supra. Absent probable cause for arrest, weapons and other instruments of crime must then be returned. Sections B and C of the statute were not intended to apply to fruits of crime which are not themselves dangerous. Moreover, there was no “search” here. Sections B and C, supra, are irrelevant.


author: CALOGERO and BLANCHE, JJ.,

text:
    The ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC., et al. v. BOSSIER PARISH POLICE JURY, et al.
    No. 82-C-0468.
    Supreme Court of Louisiana.
    March 3, 1982.
   Re: The Associated General Contractors of America, Inc., Louisiana Highway, Heavy, Municipal & Utilities, Branch, and Grace Construction Co., applying for Supervisory Writs of Mandamus, Prohibition and Certiorari, Bossier Parish, No. 58,193.

Denied. We are unable to say that the courts below erred in denying relators the relief sought.

CALOGERO and BLANCHE, JJ.,

would grant the writ believing that the Public Bid Law prevents the parish from constructing the bridge in question when the cost exceeds the $30,000 limit provided for by LSA 38:2212 A(l). It is our further opinion that building a bridge to replace an old bridge is by its nature, a construction project and is not “maintaining ... public properties ...” so as to except the project from the Public Bid Law.


author: LEMMON, Justice,

text:
    T. J. IVY, Sr. v. AMERICAN ROAD INSURANCE COMPANY.
    No. 81-C-1092.
    Supreme Court of Louisiana.
    March 12, 1982.
   LEMMON, Justice,

dissenting from the Denial of the Application for Rehearing.

I dissent from the denial of application for rehearing insofar as the judgment of the district court (reinstated by the decision of this court, 409 So.2d 549) awarded penalties and attorney’s fees for the insurer’s arbitrary refusal to pay the claim.

This case raised a difficult and complex issue on the merits of the claim under the policy. While the trial court granted recovery to the insured, the court of appeal, 398 So.2d 165, unanimously ruled in favor of the insurer, and only four members of this court voted in favor of granting the insured’s application for certiorari. Thereafter, the unanimous judgment of this court in favor of the insured resulted from a persuasive opinion, based on logic and sound legal reasoning, rather than from any precedents in prior opinions.

While I am convinced that we correctly decided the merits of the claim under the policy against the insurer, the award of penalties and attorney’s fees requires a conclusion that the insurer knew or should have known that this would be our final decision and was arbitrary in refusing to anticipate this and to pay the claim without litigation.

At issue is the insurer’s right to its day in court. Here, the insurer made a reasonable decision to contest the claim. The number of judges who voted in favor of the insurer supports a conclusion that the decision was reasonable. For this court to conclude that the decision was arbitrary is to tell insurers that they cannot make a reasonable decision to assert their right to a day in court, but must correctly anticipate that they will ultimately win the claim in order to avoid being held for penalties and attorney’s fees. Such an approach rewrites the statute which provides for penalties and attorney’s fees only when the insurer’s refusal to pay is arbitrary and unreasonable.


text:
    Frances DETRAZ, et al. v. Anthony J. FONTANA, Jr., et al.
    No. 81-C-3033.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Anthony J. Fontana, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Vermilion Parish. 406 So.2d 248.

Granted.


text:
    SUCCESSION OF Stella Lea WILLIAMS.
    No. 81-C-3074.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Rachel Williams Kleinpeter, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 405 So.2d 336.

Granted.


text:
    Raymond J. HEBERT v. COURNOYER OLDSMOBILE-CADILLAC-GMC, INC., et al.
    No. 81-C-3097.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Cournoyer Oldsmobile-Cadillac-GMC, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 405 So.2d 359.

Granted.


text:
    Mrs. Alcide GUIDRY, Indiv., etc. v. SLINE INDUSTRIAL PAINTERS, INC., et al.
    No. 81-C-3116.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Sline Industrial Painters, Inc. and Liberty Mutual Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 406 So.2d 303.

Granted.


text:
    Raymond J. HEBERT v. COURNOYER OLDSMOBILE-CADILLAC-GMC, INC., et al.
    No. 81-C-3136.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re General Motors Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 405 So.2d 359.

Granted.


text:
    STATE of Louisiana v. Julius ARNOLD.
    No. 81-K-3165.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re Cotton Belt Insurance Company, applying for writ of certiorari, prohibition, and mandamus. Parish of Terrebonne. No. 92359.

Denied.


text:
    Robert R. SANDERS v. UNITED DISTRIBUTORS, INC., et al.
    No. 81-C-3227.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re United Distributors, et al, applying for writ of certiorari, to the Fourth Circuit, Court of Appeal. Parish of Jefferson. 405 So.2d 536.

Denied. The result is correct.

DIXON, C. J., and MARCUS, J., would grant.


text:
    GURTLER, HEBERT AND COMPANY, INC. v. WEYLAND MACHINE SHOP, INC.
    No. 81-C-3246.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Cimini, Merio, Burns, Counce, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 405 So.2d 660.

Denied.

MARCUS, J., would grant.


text:
    Dudley CURRY and Shirley Curry v. IBERVILLE PARISH SHERIFF'S OFFICE, et al.
    No. 81-C-2927.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re North River Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Iberville. 405 So.2d 1387.

Denied.

MARCUS and BLANCHE, JJ., to grant.


text:
    RELIABLE CREDIT CORPORATION v. Nathan SMITH and Geraldine Smith.
    No. 81-C-3265.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Reliable Credit Corporation applying for writ of certiorari or review to the Court of Appeal, First Circuit. Parish of West Baton Rouge. 406 So.2d 231.

Granted.


text:
    Lucy Marie Bouffanie BOUSEGARD v. STATE FARM INSURANCE COMPANY. Nolan FREYOUX, et al. v. The ESTATE OF Leo J. BOUSEGARD, et al.
    No. 81-C-3271.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Nolan Freyoux, et al., applying for writs of certiorari or review, to the First Circuit, Court of Appeal. Parish of St. Mary. 405 So.2d 1236.

Granted. The judgment of the court of appeal is reversed. The case is remanded for trial on the merits.


text:
    Lucy Marie Bouffaine BOUSEGARD v. STATE FARM MUTUAL INSURANCE COMPANY. Nolan FREYOUX, et al. v. The ESTATE OF Leo J. BOUSEGARD, et al.
    No. 81-C-3272.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Lucy Marie Bouffaine Bousegard, applying for writs of certiorari, to the First Circuit, Court of Appeal. Parish of St. Mary. 405 So.2d 1236.

Granted. The judgment of the court of appeal is reversed. The case is remanded for trial on the merits.


text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. TEXACO, INC., et al.
    No. 81-C-3285.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re South Central Bell Telephone Company, applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of St. Mary. 407 So.2d 430.

Granted.


text:
    A. F. BLAIR CO., INC. v. Robert C. MASON, Robert C. Mason General Contractor and M and H Engineers and Construction Co. Millard BLANCHARD, d/b/a Blanchard Electrical Service v. Robert C. MASON, General Contractor and Hallmark Insurance Company.
    No. 82-C-0049.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Hallmark Insurance Company, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 406 So.2d 6.

Denied. The result is correct.


text:
    Myrtle R. MOORE and Argyle V. Moore v. MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS and Lake Providence Port Elevator, Inc.
    No. 82-C-0022.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Millers Mutual Fire Insurance Company of Texas and Lake Providence Port Elevator, Inc., applying for writ of certiora-ri, or review, to the Court of Appeal, Second Circuit. Parish of East Carroll. 406 So.2d 708.

Denied.

MARCUS and BLANCHE, JJ., would grant.


text:
    Samuel L. LIBER v. Durward RUST.
    No. 82-C-0024.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Samuel L. Lieber, M.D., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 388 So.2d 836.

Denied.


text:
    Ernest N. SOUHLAS v. Charles MARCHBANKS.
    No. 82-C-0037.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Ernest N. Souhlas, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 407 So.2d 797.

Denied. The result is correct.


text:
    Robert J. BODET v. Aaron BROUSSARD, Robert B. Evans, Jr., Lloyd F. Giardina, Willie Hof, Ken Hollis, James E. Lawson, Jr., J. T. “Butch” Ward and Council of the Parish of Jefferson.
    No. 82-C-0038.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Robert J. Bodet, applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 407 So.2d 810.

Denied.


text:
    Robert J. BODET v. Philip S. DeAMORE, Phillippi T. StPee, John J. Weigel & Personnel Board of the Parish of Jefferson.
    No. 82-C-0039.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Robert J. Bodet, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 407 So.2d 813.

Denied.


text:
    STATE of Louisiana In the Interest of Darryl MORRISON.
    No. 82-CK-0010.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re State of Louisiana, through the Assistant District Attorney Leonora C. Estes, applying for writs of certiorari and review. Parish of East Baton Rouge. 406 So.2d 246.

Denied.

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


text:
    Nat LITTLE v. KALO LABORATORIES, INC., et al. (and consolidated cases) Ivan O. MORRIS, Jr. v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY.
    No. 82-C-0012.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Southern Farm Bureau Casualty Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Morehouse. 406 So.2d 678.

Denied.


text:
    CITY OF HOUMA v. HOUMA MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD and Daniel Turner.
    No. 81-C-3303.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re City of Houma, applying for writ of certiorari to the First Circuit, Court of Appeal. Parish of Terrebonne. 405 So.2d 1132.

Denied.

BLANCHE and LEMMON, JJ., would grant.


text:
    Isabel JACONNE v. SCHWEGMANN BROTHERS GIANT SUPER MARKETS, INC.
    No. 81-C-3307.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Schwegmann Brothers Giant Super Markets, Inc., applying for writ of certiora-ri and review, to the Fourth Circuit, Court of Appeal. Parish of St. Bernard. 407 So.2d 513.

Denied.

BLANCHE, J., would grant.


text:
    Barbara Norkin, Wife of Ilee Magee JOSEPH v. Ilee Magee JOSEPH.
    No. 81-C-3323.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Ilee Magee Joseph, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 407 So.2d 519.

Denied.


text:
    LOUISIANA OFFSET PRINTERS, INC. v. Marion WHITE and Doris White d/b/a Opelousas LeMonde.
    No. 81-C-3327.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   • In re Marion White and Doris White d/b/a Opelousas LeMonde, applying for writ of certiorari, Opelousas City Court. Parish of St. Landry. No. 14389.

Denied.


text:
    GUARANTY SAVINGS ASSURANCE COMPANY v. NATIONAL AMERICAN BANK OF NEW ORLEANS, as Executor of the Succession of Seymour Weiss.
    No. 81-C-3332.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re National American Bank of New Orleans, as Executor of the Succession of Seymour Weiss, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 407 So.2d 795.

Denied.


text:
    Louise M. REED, Individually and as Administratrix of the Estate of Her Minor Children Barbara Reed and Karen Reed v. YOR-WIL, INC., et al.
    No. 81-C-3291.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Louis Reed, et al., applying for writ of certiorari and review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 406 So.2d 236.

Denied.


text:
    Leo JOHNSON v. BERRY BROTHERS GENERAL CONTRACTORS, INC., et al.
    No. 81-C-3284.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Leo Johnson, applying for writ of certiorari or review to the Court of Appeal, First Circuit. Parish of St. Mary. 405 So.2d 1234.

Denied.


text:
    Dudley CURRY and Shirley Curry v. IBERVILLE PARISH SHERIFF'S OFFICE, et al.
    No. 82-C-0064.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re State of Louisiana, applying for writ of certiorari, to the Court of Appeal, First Circuit. Parish of Iberville. 405 So.2d 1387.

Denied.

MARCUS and BLANCHE, JJ., to grant.


text:
    Wilma Lee HOLCOMB v. Eugene Edward KINCAID.
    No. 82-C-0011.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Wilma Lee Holcomb, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 406 So.2d 650.

Denied.

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


text:
    HIBERNIA NATIONAL BANK v. Annette Falcon, Wife of/and Marion J. PERRET, d/b/a Mari-Anne Stables.
    No. 81-C-2842.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Annette Falcon, wife of/and Marion J. Perret, d/b/a Mari-Anne Stables, applying for writ of certiorari. Parish of Jefferson. No. 245-752.

Denied.


text:
    STATE of Louisiana, ex rel. Raymond ODOM v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-2828.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Ross Maggio, applying for writs of certiorari, prohibition, mandamus or habeas corpus. Parish of Caddo. Nos. 48375, 48376, 48210 and 58965.

Denied.


text:
    STATE of Louisiana ex rel. Ronald TONEY v. Ross MAGGIO, Warden.
    No. 81-KH-2820.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Ronald Toney, applying for remedial writs. Parish of St. John the Baptist. No. 74-79.

Denied.


text:
    STATE of Louisiana ex rel. Clarence HOLMES, Jr. v. STATE of Louisiana.
    No. 81-KH-2800.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Clarence Holmes, Jr., applying for writ of certiorari. Parish of Orleans. No. 275-900.

Denied.


text:
    STATE of Louisiana ex rel. Wilhelmina W. JOSEPH v. Charles C. FOTI, Jr.
    No. 81-KH-2796.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Wilhelmina W. Joseph, applying for writ of mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Clifton JONES v. Frank BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-2788.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Clifton Jones, applying for remedial writs. Parish of Orleans. No. 248-286.

Writ denied.


text:
    STATE of Louisiana ex rel. Sherman GILL v. Honorable Frank SHEA, Judge, et al.
    No. 81-KH-2876.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Sherman Gill, applying for reconsideration of denied writ of 1/8/82.

Denied.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Edmond G. MIRANNE and Edmond G. Miranne, Jr.
    No. 81-B-3235 and 81-B-3236.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Edmond G. Miranne and Edmond G. Miranne, Jr., applying for reconsideration of order issued on Jan. 15, 1982.

Reconsideration denied.

CALOGERO, MARCUS and LEMMON, JJ., would grant a reconsideration.


text:
    STATE of Louisiana ex rel. Aubrey DEVORE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2760.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Aubrey Devore, applying for writs of certiorari, prohibition, mandamus or ha-beas corpus. Parish of St. Landry. No. 27521.

Denied.


text:
    STATE of Louisiana, ex rel. Joseph Leon CHASE v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-2730.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Joseph Leon Chase, applying for motion to proceed in forma pauperis; motion for the appointment of counsel; and petition for writ of habeas corpus, and motion for an oral argument. Parish of West Baton Rouge. No. 57145.

Denied.


text:
    STATE of Louisiana ex rel. Daniel Eugene MALLERY v. STATE of Louisiana.
    No. 81-KH-2968.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Daniel Eugene Mallery, applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Beauregard. No. 471-80.

Denied.


text:
    STATE of Louisiana ex rel. Robert L. WADE v. C. Paul PHELPS, Secretary Louisiana Department of Corrections.
    No. 81-KH-2956.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Robert L. Wade, applying for writ of certiorari on writ of habeas corpus. Parish of Orleans. No. 274-465.

Denied.


text:
    STATE of Louisiana ex rel. Robert HOWARD v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2926.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Robert Howard, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of Orleans. No. 202256. Section F.

Denied.


text:
    STATE of Louisiana ex rel. Otho H. LINNEAR v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-2907.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Otho H. Linnear, applying for writs of certiorari and habeas corpus. Parish of Bossier. No. 54534.

Denied.


text:
    STATE of Louisiana ex rel. Rickey J. LEWIS v. Houston C. GASCON, District Attorney, Emile J. Leblanc, Chief of Police and C. E. Blunck, Parish Coroner.
    No. 81-KH-2893.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Rickey J. Lewis, applying for writ of certiorari and writ of mandamus. Parish of Iberville.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph RENEY v. CLERK OF COURT, 14TH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU.
    NO. 81-KH-2885.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Joseph Reney, applying for writ of mandamus. Parish of Calcasieu. Nos. 6872-78 and 8843-79.

Denied.


text:
    STATE of Louisiana ex rel. Ellis A. GOODWIN, Jr. v. Ross MAGGIO, Jr., Warden.
    No. 81-KH-2864.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Ellis A. Goodwin, Jr., applying for remedial writs. Parish of Beauregard. No. C-787-81.

Writ denied.


text:
    STATE of Louisiana ex rel. Kenneth Ray WALKER v. N. Burl CAIN/Warden Dixon Correctional Institute.
    No. 81-KH-2863.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Kenneth Ray Walker, applying for writ of certiorari. Parish of Ouachita. No. 38658.

Denied.


text:
    STATE of Louisiana ex rel. Joseph WOODS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2850.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Joseph Woods, applying for writ of certiorari and writ of habeas corpus. Parish of West Baton Rouge. No. 65089.

Denied.


text:
    STATE of Louisiana ex rel. Claude WOODS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2848.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Claude Woods, applying for writ of certiorari and writ of habeas corpus. Parish of West Baton Rouge. No. 65089.

Denied.


text:
    STATE of Louisiana ex rel. Dennis BURSE v. Honorable Bernard BAGERT, Judge, Parish of Orleans and State of Louisiana.
    No. 80-KH-2895.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Dennis Burse, applying for writs of prohibition and mandamus. Parish of Orleans.

Granted. Evidentiary hearing ordered to determine whether La. sentence was promised and ordered to be concurrent with Miss, sentence and to decide the merit of application of relator.


text:
    Melvin SMITH v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Office of Charity Hospital of Louisiana at New Orleans.
    No. 81-C-3283.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Department of Health and Human Resources, Office of Charity Hospital of Louisiana at New Orleans, applying for writ of certiorari or review, to the Court of Appeal, First Circuit. No. 15858. East Baton Rouge Civil Service Comm.

Writ Granted.


text:
    FLUKER COMMUNITY CHURCH v. F. B. HITCHENS, et al.
    No. 81-C-3286.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Fluker Community Church, applying for writ of certiorari, to the First Circuit, Court of Appeal. Parish of Tangipa-hoa. No. 14340.

Writ Granted.


text:
    STATE of Louisiana v. Donald CRAFT.
    No. 81-K-3326.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Donald Craft, applying for writ of certiorari. Parish of Orleans. Nos. 272-365 and 272-503.

Granted. An additional sanity hearing before trial is ordered.


text:
    BANK OF COUSHATTA v. Alice Maurine Hunter DRY.
    No. 82-C-0036.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Alice Maurine Hunter Dry, applying for writ of review, Second Circuit, Court of Appeal. Parish of Red River. No. 14733.

Granted.


text:
    STATE of Louisiana ex rel. Warren SCHMITT v. Judge Oliver SCHULINGKAMP, Orleans Criminal District Court.
    No. 80-KH-2111.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Warren Schmitt, applying for writ of certiorari. Parish of Orleans. No. 249-073.

Writ denied.


text:
    STATE of Louisiana v. Betty Williams PRESLEY.
    No. 81-K[A]-1616.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Betty Williams Presley, applying for remedial writ. Parish of Calcasieu. No. 1539-80.

Denied.


text:
    STATE of Louisiana ex rel. Pink LINDSEY, Jr. v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 81-KH-2566.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Pink Lindsey, Jr., applying for writs of certiorari, Prohibition, and Mandamus. Parish of St. Bernard. No. 49-358/359.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Rudolph JACKSON v. Edwin A. LOMBARD, In His Official Capacity as Clerk of the Criminal District Court.
    No. 81-KH-2580.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Rudolph Jackson, applying for writ of mandamus. Parish of Orleans. No. 277-593.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Rufus FISHER v. STATE of Louisiana.
    No. 81-KH-2666.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Rufus Fisher, applying for writ of habeas corpus. Parish of Natchitoches. Nos. 68726 and 68727.

Denied.


text:
    STATE of Louisiana ex rel. Elleaner V. EVEQUE v. CLERK OF COURT CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 81-KH-3101.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Elleaner V. Eveque, applying for writs of mandamus. Parish of Orleans. No. 268-142.

Denied.


text:
    STATE of Louisiana ex rel. Irvin E. WILLIAMS v. Honorable Fred S. BOWES, Judge 24th Judicial District Court Parish of Jefferson.
    No. 81-KH-3078.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Irvin E. Williams, applying for writs of mandamus. Parish of Jefferson. No. 74-215.

Denied.


text:
    STATE of Louisiana v. Darrell HARRIS.
    No. 81-K-3070.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Darrell Harris, applying for writs of certiorari, prohibition and mandamus. Parish of Beauregard. No. CR-338-81.

Denied.


text:
    STATE of Louisiana ex rel. Norman L. WATSON v. N. Burl CAIN/Warden, Dixon Correctional Institute.
    No. 81-KH-3007.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Norman L. Watson, applying for writ of certiorari. Parish of Orleans. No. 262-309.

Writ denied.


text:
    STATE of Louisiana v. Jerry Lee McMORRIS.
    No. 81-K-2986.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Jerry Lee McMorris, applying for remedial, supervisory, certiorari, prohibition and mandamus writs. Parish of West Baton Rouge. No. 93173.

Writ denied.


text:
    STATE of Louisiana, ex rel. Sidney MOORE, Jr. v. CLERK OF COURT, 4TH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA.
    No. 81-KH-2981.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Sidney Moore, Jr., applying for writ of mandamus. Parish of Ouachita. No. 39470.

Denied.


text:
    STATE of Louisiana v. Julius ARNOLD.
    No. 81-K-3165.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Cotton Belt Insurance Company, applying for reconsideration of denied writ of Jan. 8,1982. Parish of Terrebonne. No. 92359.

Denied.


text:
    Robert N. RANNEY v. Steve DURKIN.
    No. 81-C-1575.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Steve Durkin, applying for reconsideration of denied writ of July 2,1981, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 11899.

Denied. The judgment is final.


text:
    STATE of Louisiana, ex rel. Roger C. GORDY v. COURT REPORTER, 30TH JUDICIAL DISTRICT COURT, PARISH OF VERNON, State of Louisiana, et al.
    No. 81-KH-2765.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Honorable Ted R. Broyles, Judge, applying for reconsideration of writ granted in part and denied in part, with order, of Jan. 25, 1982. Parish of Vernon. No. 31335.

Order of January 25, 1972 vacated; there was a trial and not a guilty plea in these proceedings.


text:
    THARPE AND BROOKS, INC. v. ARNOTT CORPORATION, et al.
    No. 82-C-0063.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Tharpe and Brooks, Inc., applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of St. Tammany. 406 So.2d 1.

Writ granted in part for the purpose of remanding the case to the Court of Appeal to reconsider the mathematical error in Neumiller’s claim. The writ is otherwise denied.


text:
    Edward C. LAMB v. Janet F. LAMB.
    No. 82-C-0154.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Janet E. Lamb, applying for writ of certiorari, mandamus and prohibition, to the Third Circuit, Court of Appeal. Parish of Lafayette. No. 82-17.

Granted. The ruling of the trial judge in adjudging relator in contempt is reversed.


text:
    STATE of Louisiana, ex rel. Larry R. PRICE v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 82-KH-0102.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Larry R. Price, applying for writ of mandamus. Parish of Orleans. No. 266-377.

Granted. The district court is ordered to furnish the relator with a copy of his Boy-kin transcript.


text:
    STATE of Louisiana v. Jessie COMMODORE and Darryl Simms.
    No. 82-K-0073.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re State of Louisiana, through the Asst. District Attorney, Oliver Johnson, applying for writ of certiorari. Parish of Orleans. No. 284-292.

Writ granted.


text:
    STATE of Louisiana v. Charles Lee ROGERS.
    No. 82-K-0056.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Charles Lee Rogers, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 117281.

Granted.


text:
    STATE of Louisiana v. Louis LACOUR.
    No. 82-K-0531.
    Supreme Court of Louisiana.
    March 4, 1982.
   In re Louis Lacour, applying for writs of certiorari, mandamus, prohibition and stay order. Orleans Parish.

Denied; the request for continuance is moot after the recess granted by the trial judge; the recess gives defendant the opportunity to file a motion for bill of particulars if needed, and allows the state time to answer the motion filed. Previous stay order recalled.

WATSON, J. would deny adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Henry GASTON and Horace Thomas.
    No. 82-K-0541.
    Supreme Court of Louisiana.
    March 4, 1982.
   In re Henry Gaston and Horace Thomas, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 82-487.

Denied. Upon advice by relators’ counsel that the charges about which he complains in this application have been refused by the District Attorney, we determine that this matter is now moot.


text:
    STATE of Louisiana v. Jimmy Lee RANDALL.
    No. 82-K-0449.
    Supreme Court of Louisiana.
    March 4, 1982.
   In re Jimmy Lee Randall, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Catahoula. Nos. 81-1775, 81-1776, 81-1777 and 81-1778.

Denied.


text:
    Reverend G. W. TYLER and Bethel Apartments, Inc. v. Reverend G. R. HAUGHTON.
    No. 82-C-0550.
    Supreme Court of Louisiana.
    March 5, 1982.
   In Reverend G. R. Haughton, applying for supervisory and remedial writs. Parish of Rapides. Nos. 121607, 121620 and 121621.

Denied.


text:
    STATE of Louisiana, ex rel. Joseph N. REDMAN v. STATE of Louisiana.
    No. 82-KH-0562.
    Supreme Court of Louisiana.
    March 9, 1982.
   In re Joseph N. Redman, applying for remedial writs. Parish of Terrebonne. No. 119965.

Denied.


text:
    STATE of Louisiana v. Stanley SMITH.
    No. 82-K-0592.
    Supreme Court of Louisiana.
    March 10, 1982.
   In re Stanley Smith, applying for writ of review, and stay order. East Baton Rouge Parish. No. 10-81-394.

Denied.


text:
    Thorre G. TERJERSEN v. Mary Louise Yancey, Wife of Thorre G. TERJERSEN.
    No. 82-C-0583.
    Supreme Court of Louisiana.
    March 11, 1982.
   In re Thorre G. Terjersen, applying for writ of certiorari and review, and stay order. Parish of Orleans. No. 81-16796.

Denied.

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


text:
    Wilma Lee HOLCOMB v. Eugene E. KINCAID.
    No. 82-0-0011.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Wilma Lee Holcomb, applying for reconsideration of denied writ of Jan. 25, 1982, Court of Appeal, Second Circuit. Parish of Caddo. 406 So.2d 650.

Not considered. See Rule No. IX § 6.


author: DOUCET, Judge. GUIDRY, Judge, FORET, Judge,

text:
    Joseph RENNIER, Plaintiff-Appellant, v. Joe JOHNSON, Jr., Defendant-Appellee.
    No. 8411.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1981.
    Writ Denied April 15, 1982.
    Alex D. Chapman, Jr., Ville Platte, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, H. B. Gist, Jr., Craven & Scott, Samuel H. Craven, Alexandria, for defendant-appellee.
    Before GUIDRY, FORET, SWIFT, DOU-CET and LABORDE, JJ.
   DOUCET, Judge.

The plaintiff-appellant was assaulted at work by a fellow employee allegedly acting in a supervisory capacity and subsequently received workmen’s compensation benefits due to the injuries suffered. Thereafter, the plaintiff brought suit against the tort-feasor, Joe Johnson, Jr., and his employer, Baker Manufacturing Co. and their insurer, the latter of which filed a motion for summary judgment seeking dismissal as to themselves and their insured. The trial judge granted the motion, apparently being of the belief that workmen’s compensation is the exclusive remedy insofar as the liability of the employer for the intentional tort of an employee is concerned. Appellees submit that the “sole issue” presented is whether workmen’s compensation is plaintiff’s exclusive remedy under the circumstances. The issue as to policy coverage, vis-a-vis employer Baker and Johnson, not having been briefed, will not be considered herein. We reverse and remand.

La.Code Civ.P. art. 966 provides that a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. Only when reasonable minds must inevitably concur, as a matter of law, on the facts before the court is a summary judgment warranted. Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir. 1980); Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). Any doubts as to genuine issues of material fact are resolved against the grant of summary judgment and in favor of a trial on the merits. Clement v. Taylor, supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

The applicable workmen’s compensation law, La.R.S. 23:1032, reads in pertinent part:

“. .. nothing in this chapter shall affect the liability of the employer, or any officer, director, stock holder, partner or employee or principal [sic] to a fine or penalty under any statutes or the liability, civil or criminal, resulting from an intentional act...” (Emphasis added)

Thus the exclusive nature of the workmen’s compensation remedy does not apply to intentional acts. “Intentional act” has been construed to mean the same as “intentional tort” in reference to civil liability. Bazley v. Tortorich, 397 So.2d 475 (La.1981). Plaintiff alleged in his petition, and appel-lee concedes for purposes of summary judgment, that the attack by Johnson was an intentional act. We hold that such an intentional act, when committed in the course and scope of employment, renders the employer liable in tort to the insured co-employee.

An employer is liable for a tort committed by his employee if, at the time, the employee is acting within the scope of his employment. LeBrane v. Lewis, 292 So.2d 216 (La.1974); La.Civ.Code art. 2320. In LeBrane it was found that the tortious conduct of the supervisor was so closely connected in time, place, and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business. Thus, the test of an employer’s liability in tort is similar to the “arising out of and in the course of employment” test applied in workmen’s compensation cases. The plaintiff alleges that Johnson was acting in a supervisory capacity at the time of the attack in that he was instructing appellant how to use certain tools for their employer. Appellee denies that Johnson was acting in a supervisory capacity and alleges that his actions were not within the scope of his employment.

From the aforegoing it appears that there are genuine issues of fact, regarding the applicability of the respondeat superior doctrine, material to the plaintiff’s right to recover in tort from the appellee and appel-lee is therefore not entitled to summary judgment as a matter of law. The plaintiff’s allegations of fact, viewed in a light most favorable to him, meet the intentional act exception to the exclusiveness of workmen’s compensation and state a cause of action for an intentional tort. Accordingly, the judgment of the trial court is reversed and set aside and this action is remanded to same for further proceedings. Costs of this appeal are assessed to appellees; all other costs to await final disposition of this action.

REVERSED AND REMANDED.

GUIDRY, J., concurs and assigns reasons.

FORET, J., dissents and assigns written reasons.

SWIFT, J., dissents for reasons assigned by FORET, J.

GUIDRY, Judge,

concurring.

I respectfully concur. LSA-R.S. 23:1032 specifically provides that nothing in Louisiana’s Worker’s Compensation Law shall affect the civil liability of the employer under any other statute resulting from an intentional act. It is well settled that an employer is liable for an intentional tort committed by his employee if, at the time, the employee is acting within the scope of his employment. LeBrane v. Lewis, 292 So.2d 216 (La.1974); LSA-C.C. Article 2320. If the legislature intended to restrict applicability of LSA-R.S. 23:1032 to employers who are natural persons as opposed to corporations and to situations where the employer, a natural person, himself, intentionally harms the employee, it could have done so.

FORET, Judge,

dissenting.

I respectfully dissent from the views expressed and the decision rendered by the majority.

Plaintiff has a cause of action under workmen’s compensation, and that cause of action is his exclusive remedy against his employer. There is no way in which this corporate employer, Baker Manufacturing Company, can be chargeable with having committed an intentional act in the case at bar. The statute is clear that unless the employer commits an intentional act against the employee, that the sole remedy of the employee against the employer is workmen’s compensation.