author: DIXON, Chief Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Wiley Young WILLIAMS.
    No. 81-K-3153.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.
    James E. Franklin, Jr., Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Herman L. Lawson, Asst. Dist. Attys., for plaintiff-respondent.
   DIXON, Chief Justice.

On February 25, 1976 Wiley Young Williams and Robert Lee Jordan were indicted by the DeSoto Parish Grand Jury for armed robbery. (R.S. 14:64). They allegedly robbed C. B. Yarbrough, doing business as Lee Martin’s Men’s Store in Mansfield, Louisiana, on January 14, 1976 while armed with a dangerous weapon. Although an arrest warrant was issued in DeSoto Parish in 1976, Williams was not arrested until June 11, 1981. Williams filed a motion to quash the indictment, based on expiration of the time limitation in C.Cr.P. 578, since the state was attempting to begin trial more than two years after the institution of prosecution. The trial court denied the motion. We granted defendant’s application for writ of certiorari, and reverse.

Defendant alleged in his motion to quash that he was a resident of San Augustine, Texas at the time of his indictment. The record consists of a stipulation made by the prosecution and the defense, but it contains no reference to defendant’s 1976 residence except for the state’s denial of knowledge of defendant’s residence at that time. The stipulation indicates defendant was arrested in 1976 in San Antonio, Texas, but that DeSoto Parish authorities were unaware of this detention. Defendant was arrested in Oklahoma City in 1977. The State of Louisiana attempted to extradite defendant, but failed to do so.

A letter dated February 2, 1977 from the Oklahoma City sheriff’s office informed the DeSoto sheriff’s office that defendant was in custody, but that the Governor’s extradition warrant was needed by March 1, 1977 for an extradition hearing; that hearing was continued until May 1, 1977 allowing the state a longer period for extradition. The DeSoto Parish district attorney wrote to the Oklahoma City sheriff on February 10, 1977 stating that necessary paperwork for Williams’ extradition had been sent to the Attorney General of Louisiana. On March 2, 1977 the district attorney mailed copies of the 1976 arrest warrants that had been issued in DeSoto Parish to the Oklahoma authorities. A letter of May 23, 1977 from the DeSoto Parish district attorney’s office to an office of the Louisiana Attorney General indicates that the Oklahoma City authorities had not received the Governor’s extradition warrant before expiration of the time that defendant could be held on the fugitive complaint. The district attorney stated that the Attorney General should proceed with the extradition because the defendant was still in the vicinity of Oklahoma City. On June 24,1977 the Oklahoma Department of Corrections sent a letter to the Oklahoma City sheriff enclosing the Louisiana Governor’s warrant for defendant. The record contains no further correspondence between the Louisiana and Oklahoma authorities.

The stipulation shows that defendant remained in Oklahoma City for another three or four years working for the same employer, a cement company, although the state in argument denied knowledge of defendant’s whereabouts. Defendant returned to Mansfield at the end of 1980, and in 1981 was arrested on a charge of disturbing the peace; that arrest led to the discovery of outstanding arrest warrants on the armed robbery charge.

The two year period for the commencement of trial has obviously been exceeded in the span between February 25, 1976 and June 11, 1981, the time of defendant’s arrest. Unless there was an interruption or suspension of the prescriptive period as provided in C.Cr.P. 579 and 580, the indictment should have been dismissed under C.Cr.P. 581. The second article of the Code of Criminal Procedure provides:

“The provisions of this Code are intended to provide for the just determination of criminal proceedings. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.”

This court has consistently held that the state bears a “... heavy burden of showing that it is excused from trying an accused on a charge later than the period mandated by Article 578. ... ” State v. Driever, 347 So.2d 1132, 1133 (La.1977). See also State v. Guidry, 395 So.2d 764 (La.1981) and State v. Devito, 391 So.2d 813 (La.1980). In Devi-to we held that the state’s failure to extradite the defendant within the period mandated by Article 578, due to delays encountered by the state in extradition, could not be imputed to the defendant. In Guidry the state knew the whereabouts of defendant and had the opportunity to act, but failed to do so within the allotted time. Consequently, the indictment against Gui-dry was dismissed.

In this ease, Williams was released from jail in Oklahoma City because the extradition papers were not timely filed in Oklahoma despite a two month continuance of the extradition hearing. Defendant remained in Oklahoma City for more than three years following his release. At the hearing on defendant’s motion to quash, the district attorney denied knowledge of defendant’s whereabouts after his release from jail. However, the record reveals that the DeSo-to Parish district attorney was aware that defendant was still in the Oklahoma City area after his release. In a letter dated May 23, 1977 from the district attorney to the Louisiana Attorney General, the district attorney advised that office that the defendant was still in the Oklahoma City area.

The state had ample time to locate defendant through the authorities in Oklahoma and have him rearrested for extradition. The evidence produced at the motion to quash showed that the State of Louisiana failed to pursue the extradition after learning that defendant had been released. The state never attempted to establish that Louisiana was defendant’s usual place of abode. Absent a showing of cause beyond the state’s control that would interrupt prescription, the two year time limit for a noncapital felony continued to run. The state has failed to carry its burden of showing that limitations on trial established in C.Cr.P. 578 have been interrupted or suspended. See State v. Guidry, supra; State v. Devito, supra; State v. Driever, supra. Defendant’s motion to quash the indictment should have been granted.

The ruling of the trial court on the motion to quash the indictment is reversed. The indictment is dismissed, and the defendant is discharged.

MARCUS, J., dissents and assigns reasons.

LEMMON, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

La.Code Crim.P. art. 579 provides:

The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.
The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

In my view, defendant either fled from the state or was outside of the state with the purpose to avoid detection, apprehension, or prosecution or could not be tried because his presence for trial, at least part of the time, could not be obtained by legal process. In either case, there was an interruption under art. 579 of the time limitation established by art. 578(2). Moreover, I consider that State v. DeVito, 391 So.2d 813 (La.1980), should be overruled. Accordingly, I respectfully dissent.

      . The defense notes in brief that no further proceedings were had against Jordan following a preliminary hearing in 1976. The state does not dispute this allegation.'

      . The record is unclear, but it appears that Williams was released by Oklahoma City authorities in early May, 1977.


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    Charles L. KELLY v. CITY OF NEW ORLEANS.
    No. 81-C-3167.
    Supreme Court of Louisiana.
    May 17, 1982.
    Rehearing Denied June 18, 1982.

    Joseph W. Thomas, & Belhia V. Martin, New Orleans, for plaintiff-applicant.
    Robert R. Gisevius, Deputy City Atty., for defendant-respondent.

       Lemmon, J., recused.

   WATSON, Justice.

The issue in this suit for workers’ compensation benefits is whether corrective surgery on plaintiff’s left shoulder was required as the result of employment related accidents. LSA-R.S. 23:1031.

On May 30, 1978, plaintiff, Charles L. Kelly, a City of New Orleans policeman, was riding in a patrol car which was hit by a motorcycle. He and his partner were on duty, answering an emergency call, when the motorcycle struck Kelly’s side of the ear with a heavy impact. His left shoulder dislocated and then pushed back into place, leaving severe pain. Dr. D. S. Condie, an expert general surgeon, treated Kelly’s shoulder with diathermy, muscle relaxants, sedatives, analgesics and heat. According to Dr. Condie, Kelly’s ligaments were damaged as a result of the automobile accident, and the accident, combined with an earlier injury as a police cadet, increased the possibility of future dislocations.

Kelly reported to the New Orleans Police Department, on May 81, 1978, that he had severe pain in the left shoulder and a prior injury to the same shoulder at the police academy. The report indicates no preexisting disability. Two “Injury Reviewing” police officers determined that Kelly was entitled to compensation benefits. Kelly missed work for four and one half weeks, from June 4 to July 7. However, no compensation or medical expenses were paid by the City.

On July 7,1978, Dr. Condie released Kelly for light or limited duty at a desk job. However, Kelly testified he was required to resume full duty at that time. Dr. Condie recommended activity and exercise, but did not want Kelly to engage in the full duties of a police officer. On July 14, 1978, at a regular appointment with Dr. Condie, Kelly reported that he had again dislocated and reduced his shoulder while swimming. He was referred to an orthopaedic surgeon. According to Dr. Condie, the swimming accident exacerbated Kelly’s condition. Kelly continued at his job until July 22, missed two days and then returned to work.

Dr. C. Roy Marrero, an orthopaedic surgeon, saw Kelly on July 20, 1978. Kelly stated that he had dislocated his shoulder while in police training, had another dislocation in the automobile-motorcycle accident, and then the swimming dislocation. According to Dr. Marrero’s examination and Kelly’s history, Kelly had a recurrent dislocating left shoulder. The ligaments in the shoulder had been weakened. If a shoulder dislocates twice in a young individual, Dr. Marrero recommends surgery. In Kelly’s age group there would otherwise be a seventy-five percent chance of recurrence. Dr. Marrero operated on Kelly’s shoulder at Touro Infirmary on August 23, 1978, moving a piece of bone and inserting a screw. The hospitalization cost $1,234.30 and the surgeon’s fee was $678. Kelly used sick and annual leave from August 23 until October 12 and authorized leave without pay from then until December 2, 1978, when he apparently returned to work.

Kelly was returned to full duty by Dr. Marrero on January 30, 1979. He has a ten percent permanent disability of the shoulder as a result of the surgery.

The trial court concluded that Kelly was entitled to four and one half weeks compensation at $95 per week for the time lost after the patrol car accident. Also awarded was the $315 medical bill of Dr. Condie and restoration of the sick leave Kelly had utilized in lieu of compensation. The City was cast for penalties, costs and attorney’s fees of $750. Benefits for the surgery, Dr. Marrero’s fee, and the time lost from work as a result of the hospitalization were denied.

The Court of Appeal concluded that the City was not liable for Dr. Condie’s bill because that doctor is a salaried employee of the City. Since the City had misplaced the accident report about Kelly’s injury at the police academy, the Court of Appeal remanded for a determination of whether or not there was a connection between that injury and the subsequent shoulder problem. Appellate attorney’s fees of $500 were awarded. Kelly v. City of New Orleans, 384 So.2d 546 (La.App. 4 Cir. 1980).

Dr. Condie had testified that he does not have a contract with the City, and his salary from the police department does not cover his office expenses. Police personnel come to him as private patients, and are free to go to other physicians.

On remand, Kelly’s injury report from the police academy accident, dated February 14,1977, was introduced in evidence. It relates: “while taking the police agility test, I was injured, when crawling through a window. I slip down in the mud and fell on my left shoulder, causing my left shoulder to separate ... left shoulder was dislocated.” After that injury, Kelly went to Charity Hospital.

A Charity Hospital record corroborates this report. On February 14, 1977, Kelly was diagnosed as having a dislocation of the left shoulder. He was advised of the possibility of redislocation, and the shoulder was put in a sling. A follow-up report on March 2,1977, reported that the patient was doing well but still had some pain.

After remand, the trial court did not award any further benefits. After a second appeal, the judgment of the trial court was affirmed, with one judge dissenting. 406 So.2d 759 (La.App. 4 Cir. 1981). A writ was granted to review the judgment. 410 So.2d 761 (La., 1982).

The trial court, after remand, stated:

“The evidence is that he [Kelly] has had similar separations, at least one, which was not work-related at all. The plaintiff’s condition is anatomical and it relates back to his birth. He was born with a defective shoulder that could be easily separated. On the two occasions on which his shoulder separated while at work, he has been compensated by the City. There is no requirement in the workmen’s compensation statutes that an employer incur the expense of correcting birth defects in injured workmen.”

These statements and conclusions are totally unsupported by the evidence in the record and are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1979).

Kelly had a shoulder separation while testing for the police academy and a subsequent shoulder dislocation in a patrol car in the course and scope of his employment. There is no evidence of a birth defect or any accidents prior to his police employment. Even if Kelly had a defective shoulder from birth, a work-related accident aggravating that condition would be compensable. Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La., 1978). The undisputed medical evidence is that the first two injuries predisposed Kelly to the swimming injury. The latter occurred while Kelly was still partially disabled and under treatment by Dr. Condie. An aggravation of a work-related injury is compen-sable even if it occurs away from work. Bolden v. Georgia Casualty & Surety Co., 363 So.2d 419 (La., 1978); Stewart v. Hospitals Affiliates International, Inc. of Baton Rouge, 404 So.2d 944, 945 (La., 1981). The surgical correction by Dr. Marrero was required because of Kelly’s employment accidents.

Kelly is also entitled to benefits for a ten percent permanent disability of the left shoulder, which restricts his arm motion. Calculation of this amount would be based on two hundred weeks, loss of use of an arm, under the schedule of LSA-R.S. 23:1221; but the percentage of loss would not equal the minimum compensation benefits under LSA-R.S. 23:1202. Therefore, plaintiff is entitled to the minimum. Slocum v. LaMartiniere, 369 So.2d 201 (La.App. 3 Cir. 1979), writ denied 372 So.2d 569.

The City produced no evidence that the services rendered by Dr. Condie to Kelly are among those for which Dr. Condie receives a salary from the City. Therefore, the City must pay Dr. Condie’s bill for Kelly’s treatment.

While there was no error by the trial and appellate court in awarding penalties and attorney fees in the original judgment, the City was not clearly arbitrary in failing to pay benefits and expenses accruing by reason of the surgery.

For the foregoing reasons, the judgment of the trial court is affirmed insofar as it awarded compensation benefits for four and a half weeks, Dr. Condie’s medical bill, penalties, and attorney’s fees of $750. The additional award of $500 appellate attorney’s fees is affirmed.

However, the judgments of the trial and appellate courts after remand are reversed. It is ordered that there be additional judgment in favor of plaintiff, Charles F. Kelly, and against the defendant, City of New Orleans, as follows:

(1) Compensation benefits from July 22 through July 24, 1978;
(2) Compensation benefits from August 23, 1978, through December 2, 1978;
(3) All related medical expenses including, but not limited to, the bills of Dr. Condie, Dr. Marrero, and Touro Infirmary;
(4) Restoration of all sick and annual leave used during the compensable periods; and,
(5) Minimum weekly compensation benefits for two hundred weeks. (LSA-R.S. 23:1202)

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

       Judge Melvin A. Shortess of the Court of Appeal, First Circuit participated in this decision in place of Lemmon, J., recused.


author: CALOGERO, Justice,

text:
    MARTIN EXPLORATION COMPANY v. JHJ LIMITED I and JHJ Drilling Company.
    No. 82-C-1280.
    Supreme Court of Louisiana.
    May 25, 1982.
   In Re: JHJ Limited I and JHJ Drilling Company Applying for Writ of Certiorari or Review and Stay Order, Parish of Livingston, No. 39,097. .

Denied on showing made.

CALOGERO, Justice,

concurs in the denial, but is of the view that the ruling does not preclude relators seeking an expedited ruling from the trial court (even prior to May 28, 1982) relative to the rule to show cause heard on May 21, 1982 (and taken under advisement by the trial court) in which relator seeks an injunction order allowing plugging and abandonment of the well and removal of drilling equipment and materials.

MARCUS, J., would grant and set aside ruling of the court of appeal and reinstate the judgment of the district court dated May 22, 1982.


author: DIXON, Chief Justice, LEMMON, Justice,

text:
    In the Matter of James D. McELVEEN v. Francis E. LEJEUNE, et al.
    No. 82-C-1035.
    Supreme Court of Louisiana.
    May 28, 1982.
   Re: James D. McElveen, applying for Writ of Review, Fourth Circuit Court of Appeal, Parish of Jefferson, No. 5-525.

Granted; appeal is reinstated.

DIXON, Chief Justice,

concurring.

Although this is a summary proceeding under provisions of R.S. 40:1299.47(C)(6) the judgment is not “interlocutory.” It denied the only relief sought, and is a final, appeal-able judgment.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring in reinstatement of appeal.

An appeal may be taken from an interlocutory judgment which may cause irreparable injury. C.C.P. Art. 2083. When the error complained of in an appeal from an interlocutory judgment cannot as a practical matter be corrected in a subsequent appeal from the final judgment, then the injury is irreparable.

In the present case, plaintiff sought to have a court reporter transcribe the proceedings before the medical review panel in a malpractice case. When the trial judge denied plaintiffs request, plaintiff appealed. If plaintiff is entitled to have the proceeding transcribed and if the trial court erred in denying plaintiff’s request, then he must have relief now or never. There is no adequate remedy by an appeal after a final judgment on the merits of the case. Therefore, this judgment causes irreparable injury and is appealable.

Since this is the type of judgment which should be reviewed immediately in order to prevent delay in the litigation, perhaps the preferable procedure would have been for plaintiff to apply for supervisory writs and for the court of appeal to review the judgment immediately on the merits of the application. The procedural scheme governing appealable interlocutory judgments and supervisory writs needs some clarification and modification, but plaintiff is entitled to immediate review by some procedure.

      . An absurd result could have occurred under the court of appeal judgment, which dismissed the appeal as one taken from a non-appealable judgment. Plaintiff could still have applied for supervisory writs, since the judgment was not final. Then, another panel of the court of appeal would have been required to review the merits of an issue which the present panel had just refused to review because plaintiff chose to write “Appeal” instead of “Writ” at the top of his pleading requesting review.
      That is exactly what happened in Treme v. Doe, 295 So.2d 8 (La.App. 4th Cir. 1974), in which the first panel of the court of appeal dismissed plaintiffs appeal on the basis that plaintiff should have applied for supervisory writs, and a second panel, on plaintiff’s subsequent application for supervisory writs to review the same ruling of the trial court, granted plaintiff the relief to which he was clearly entitled.


text:
    Albert G. DAIGRE, Sr. v. Loris Erwin DAIGRE.
    No. 82-C-1091.
    Supreme Court of Louisiana.
    May 28, 1982.
   Re: Albert G. Daigre, Sr., applying for Supervisory Writ of Review, Parish of Orleans, No. 13126.

Denied.

DENNIS, J., concurs. Relator may apply for an expedited hearing of his appeal.

CALOGERO, J., would grant and remand to the Court of Appeal to entertain application on its merits.


author: LEMMON, Justice,

text:
    Larry G. MOBLEY v. REGO COMPANY, et al.
    No. 82-C-1156.
    Supreme Court of Louisiana.
    May 28, 1982.
   In Re: State of Louisiana, through the Louisiana Liquefied Petroleum Gas Company, applying for Certiorari, or Writ of Review, to the Court of Appeal, Second Circuit, No. 14,799, Lincoln Parish.

Denied, 412 So.2d 1143.

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

LEMMON, J., concurs in the denial and assigns reasons.

LEMMON, Justice,

concurring in the denial of certiorari.

While the state owes no duty to plaintiff to provide him with a safe place to work, the party who owed plaintiff that duty relied on the state’s inspection and approval. Under these peculiar circumstances, legal liability is imposed on the state for affirmatively contributing to the creation of the hazard.


text:
    STATE of Louisiana v. Shelby “Spike” ARABIE.
    No. 82-K-0920.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re State of Louisiana, applying for writ of certiorari. Parish of Lafayette, 15th Judicial District Court. No. 45805.

Granted. Ruling of trial judge sustaining defendant’s objection to the testimony of Officer Bernard Jones relating to information received through radio dispatch is reversed and set aside. State v. Monk, 315 So.2d 727 (La.1975). Case remanded for further proceedings.


text:
    RIVER CITIES CONSTRUCTION COMPANY, INC., et al. v. BARNARD AND BURK, INC.
    No. 82-C-0994.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re River Cities Construction Company, Inc., et al., applying for supervisory writs. Parish of East Baton Rouge. No. 224961.

Denied. The result is correct.

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


text:
    STATE of Louisiana, ex rel. Clifford KEYS v. Sheriff Howard ZERANGUE.
    No. 82-KH-1176.
    Supreme Court of Louisiana.
    May 14, 1982.
   In re Clifford Keys, applying for writ of mandamus. St. Landry Parish.

Denied.


text:
    STATE of Louisiana v. Gerard HUBBARD.
    No. 82-K-1162.
    Supreme Court of Louisiana.
    May 14, 1982.
   In re Gerard Hubbard, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 287-937.

Stay denied. See State v. Williams, 392 So.2d 448 (La.1980).


text:
    In the Matter of the SUCCESSION OF Ted F. DUNHAM, Sr.
    No. 82-C-1030.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Richard Henry Malone, applying for supervisory writs. Parish of East Baton Rouge. No. 29870.

Denied.


text:
    STATE of Louisiana v. Scott LINGLE.
    No. 82-K-1184.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Scott Lingle, applying for supervisory and remedial writs. Parish of Orleans, Criminal District Court. No. 288-356.

Bond reduced to $150,000.00.

CALOGERO, J., recused.


text:
    Doris SHERMAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al. Raymond SHERMAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 82-C-1033.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re State Farm Mutual Automobile Insurance Company, et al., applying for writ of certiorari or review, to the First Circuit, Court of Appeal. Parish of Livingston. 413 So.2d 644.

Denied.


text:
    STATE of Louisiana v. Gary TONEY and John Kelly.
    No. 82-K-0695.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Gary Toney and John Kelly, applying for reconsideration of a denied writ of April 16, 1982. Parish of East Carroll. 413 So.2d 504.

Denied. See Rule 9 § 6, Louisiana Supreme Court Rules.


text:
    Calvin E. BATISTE v. Conway P. GUITEAU, Jr., et al.
    No. 82-C-1019.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Calvin E. Batiste, applying for writs of certiorari or prohibition, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. 413 So.2d 559.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Robert L. NATHAN.
    No. 82-K-1185.
    Supreme Court of Louisiana.
    May 18, 1982.
   In re Robert L. Nathan, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of St. Mary. No. 112123.

Writ granted. Total bond for all offenses arising out of this occurrence reduced to $500,000.


text:
    STATE of Louisiana v. U. P. LACHNEY.
    No. 82-K-1217.
    Supreme Court of Louisiana.
    May 18, 1982.
   In re U. P. Lachney, applying for writs of certiorari or review. Parish of Franklin. No. 19840.

Writ denied.


text:
    STATE of Louisiana ex rel. Timothy George BALDWIN v. Ross MAGGIO, Warden, Louisiana State Penitentiary, et al.
    No. 82-K-1222.
    Supreme Court of Louisiana.
    May 18, 1982.
   In re Timothy George Baldwin, applying for stay of execution. Parish of Ouachita. No. 38292.

Denied.


text:
    STATE of Louisiana v. Kevin Douglas GAIDE, David Miles LaClare and Ron Richard Polacyzk.
    No. 82-K-1205.
    Supreme Court of Louisiana.
    May 18, 1982.
   In re Kevin Douglas Gaide, David Miles LaClare and Ron Richard Polacyzk, applying for writs of certiorari, prohibition and mandamus. Parish of St. Mary. Nos. 112491, 112492, and 112497.

Denied.


text:
    STATE of Louisiana v. Jeffrey Wayne MANN.
    No. 82-K-1237.
    Supreme Court of Louisiana.
    May 20, 1982.
   In re Jeffrey Wayne Mann, applying for writ of review, prohibition and stay order. Parish of Ouachita, 4th Judicial District Court. No. 40686.

Writ denied. Relator has an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Charles G. HARPER.
    No. 82-K-1215.
    Supreme Court of Louisiana.
    May 24, 1982.
   In re Charles G. Harper, applying for writs of review, and stay order. Parish of Jackson. No. 20579.

Denied.

WATSON, J., would grant the writ. Criminal court is no place to collect civil debts, and assistant District Attorneys should avoid the appearance of impropriety.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Kenneth B. McCALEB.
    No. 82-K-1269.
    Supreme Court of Louisiana.
    May 25, 1982.
   In re Kenneth B. McCaleb, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Grant.

Granted. The bond is reduced to $25,000. The trial judge may impose appropriate conditions.


text:
    CITY OF NEW ORLEANS v. Patricia JONES, et al.
    No. 82-K-1295.
    Supreme Court of Louisiana.
    May 25, 1982.
   In re Patricia Jones, Pamela Walker, Michelle Smith and Robin Johnson, applying for writs of certiorari, mandamus and review, municipal court. Parish of Orleans. No. 265-068.

Writ granted. Relators bond is reduced to the sum of $250 each.


author: DIXON, C. J.,

text:
    STATE of Louisiana v. Fird GROVER.
    No. 82-K-1286.
    Supreme Court of Louisiana.
    May 25, 1982.
   In re Fird Grover, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson.

On the showing made, denied.

DIXON, C. J.,

concurs in the denial; relator may raise any 5th amendment violation at the appropriate time and place.


text:
    STATE of Louisiana v. Edward JOSEPH.
    No. 82-K-1300.
    Supreme Court of Louisiana.
    May 25, 1982.
   In re Edward Joseph, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 81-2654.

Denied on the showing made. Relator has adequate remedy on appeal in the event of conviction.


text:
    STATE of Louisiana v. Eric DUNN.
    No. 82-K-1311.
    Supreme Court of Louisiana.
    May 27, 1982.
   In re Eric Dunn, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Orleans. No. 288-889.

Granted. Preliminary examination ordered.


text:
    STATE of Louisiana v. Leonard AMAVI.
    No. 82-K-1313.
    Supreme Court of Louisiana.
    May 27, 1982.
   In re Leonard Amavi, applying for supervisory writs. Parish of Vermilion. No. 22966.

Writ granted. Relator’s bond is reduced to the sum of $5,000.00.


text:
    STATE of Louisiana v. Douglas W. FREEZE, Jr.
    No. 82-K-1258.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Douglas W. Freeze, Jr., applying for writs of certiorari, prohibition, and mandamus. Parish of Cameron, 38th Judicial District Court. No. 33759.

Granted. Bond reduced to $10,000.00.


text:
    STATE of Louisiana ex rel. Almeca BARRETT v. Johnnie JONES, Warden, Louisiana Correctional Institute For Women.
    No. 81-KH-2685.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Almeca Barrett, applying for supervisory writ of mandamus and habeas corpus. Parish of Orleans. No. 246-819.

Writ granted. Trial court is ordered to act on relator’s petition within fourteen days.


text:
    STATE of Louisiana ex rel. Terry BASS v. N. Burl CAIN/Warden, Dixon Correctional Institute.
    No. 82-KH-0186.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Terry Bass, applying for writ of mandamus. Parish of Orleans. Number Unknown.

Granted. The trial judge is ordered to rule within 14 days.


text:
    STATE of Louisiana v. Alvin Scott LLOYD.
    No. 82-K-0747.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Alvin Scott Lloyd, applying for remedial writs and stay order. Parish of St. John The Baptist. No. 69-81.

Writ granted.


text:
    STATE of Louisiana, ex rel. Alexander DURKINS v. N. Burl CAIN, Warden, Dixon Correctional Institute.
    No. 82-KH-0775.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Alexander Durkins, applying for writ of mandamus. Parish of Terrebonne. No. 97-598.

Writ granted. The district court is ordered to act on relator’s petition forthwith.


text:
    STATE of Louisiana ex rel. John NEILLY aka John Fales v. FIRST JUDICIAL DISTRICT COURT, Probation Officer, Emmett White, Probation Parole Director, William E. Dunn, Administrator For Probation, David M. Ledet, District Attorney, For Caddo Parish Shreveport, Louisiana.
    No. 82-KH-1024.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re John M. Neilly aka John Fales, applying for writ of mandamus. Parish of Caddo.

Granted. Transferred to trial court for action; otherwise denied.


text:
    STATE of Louisiana ex rel. John Peter ARNOTH v. Honorable Edward M. MOUSER, Judge 33rd Judicial District Court.
    No. 82-KH-1026.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re John Peter Arnoth applying for writ of mandamus. Parish of Allen.

Writ granted. The district court is ordered to act on relator’s petition which is attached hereto.


text:
    STATE of Louisiana v. Mark DOUCET.
    No. 82-K-1057.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re State of Louisiana, through Asst. District Atty., Kay Kirkpatrick, applying for supervisory writs. Parish of East Baton Rouge. No. 5-81-516.

Granted.


text:
    Susan Perry HARGROVE v. John and Juanita Istre GASPARD.
    No. 82-C-1065.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Susan Perry Hargrove, Larry Wayne Perry, and Nancy Gail Perry, applying for writs of certiorari, prohibition and mandamus. Parish of Vermilion. No. 81-42917.

Granted.


text:
    Clarence NARCISE v. ILLINOIS CENTRAL GULF RAILROAD COMPANY; Pullman Incorporated, et al.
    No. 82-CC-1245.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Certification from the United States, Court of Appeals, Fifth Circuit. No. 81-3599.

Certification Accepted.


text:
    In re Philip J. SHAHEEN, Jr.
    No. 82-O-0771.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Philip J. Shaheen, Jr., petition for reinstatement to Louisiana State Bar Association.

Granted. Petitioner is reinstated.


text:
    STATE of Louisiana ex rel. Lloyd LEBAN v. Warden Frank BLACKBURN.
    No. 81-KH-0403.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Lloyd Leban, applying for remedial writs. Parish of Orleans. No. 260-382.

Denied.


text:
    STATE of Louisiana, ex rel. Theodore JACKSON v. CLERK OF COURT, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, LOUISIANA.
    No. 81-KH-1264.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Theodore Jackson, applying for writ of mandamus. Parish of Orleans. No. 248-545.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Joseph W. CAMPBELL v. STATE of Louisiana.
    No. 82-KH-0113.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Joseph W. Campbell, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of East Carroll. No. 23131.

Denied.


text:
    STATE of Louisiana, ex rel. William SAM v. Honorable Rudolph F. BECKER, Judge Section “E”, Criminal District Court, Parish of Orleans, State of Louisiana, et al.
    No. 82-KH-0286.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re William Sam, applying for writs of certiorari, habeas corpus, prohibition, and mandamus. Parish of Orleans. No. 244-076.

Denied.


text:
    STATE of Louisiana, ex rel. Otis DAWSON v. Ross MAGGIO, Jr., Warden.
    No. 82-KH-0337.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Otis Dawson, applying for remedial writs. Parish of Caddo. No. 109754.

Denied.


text:
    STATE of Louisiana, ex rel. William TOLIVER v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0363.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re William Toliver, applying for writs of certiorari and habeas corpus. Parish of Orleans. No. 251-483.

Denied.


text:
    STATE of Louisiana, ex rel. Milton REED, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0366.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Milton Reed, Jr., applying for writ of certiorari. Parish of Orleans. No. 260-736.

Denied.


text:
    STATE of Louisiana ex rel. Jeff David SCOTT v. Ross MAGGIO, Jr., Louisiana State Penitentiary, Angola, Louisiana.
    No. 82-KH-0641.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Jeff David Scott, applying for writs of certiorari, prohibition and mandamus. Parish of Rapides. No. 176-788.

Denied.


text:
    STATE of Louisiana, ex rel. Robert L. WADE v. John KING, Secretary, Louisiana Department of Corrections.
    No. 82-KH-0681.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Robert L. Wade, applying for writs of certiorari and habeas corpus. Parish of Orleans. No. 274-465.

Denied.


text:
    STATE of Louisiana ex rel. Sheila JAMES v. Johnnie JONES, Warden Louisiana Correctional Institute For Women.
    No. 82-KH-0705.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Sheila James, applying for writ of certiorari — habeas corpus. Parish of Orleans. No. 250-108.

Denied.


text:
    STATE of Louisiana, ex rel. Kenneth L. JOHNSTON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0844.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Kenneth L. Johnston, applying for writs of certiorari, prohibition, mandamus or habeas corpus. Parish of St. Landry. No. 27848.

Writ denied.


text:
    STATE of Louisiana ex rel. Jimmy P. RIVERS v. Ross MAGGIO, Jr., Warden.
    No. 82-KH-0905.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Jimmy P. Rivers, applying for writs of habeas corpus. Parish of Sabine. No. 27721.

Denied.


text:
    STATE of Louisiana, ex rel. Verdel M. FRANK v. Jerome M. WINSBERG, Judge, Criminal District Court, Parish of Orleans Section C.
    No. 82-KH-0906.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Verdel M. Frank, applying for writs of certiorari, mandamus and prohibition. Parish of Orleans. No. 281-293.

Writ denied.


text:
    STATE of Louisiana ex rel. Ronald SCRIVENS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0963.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Ronald Scrivens, applying for remedial writs. Parish of Calcasieu. Nos. 85086, 85087 and 88190.

Denied.

CALOGERO, J., would grant an eviden-tiary hearing.


text:
    CITY OF BASTROP v. Ronald D. TRAMMELL.
    No. 82-K-1060.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Ronald D. Trammell, applying for writs of review and/or certiorari, Bastrop Municipal Court. Parish of Morehouse. No. 37888.

Denied.


text:
    STATE of Louisiana v. Rogers WILSON.
    No. 82-K-1082.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re State of Louisiana, through the District Attorney, J. William Pucheu, applying for writ of certiorari. Parish of Evangeline. No. 26486.

Denied, not final.


text:
    STATE of Louisiana, ex rel. John Thomas CZERE, III v. Frank C. BLACKBURN, Warden Louisiana State Penitentiary.
    No. 82-K-1097.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re John Thomas Czere, III, applying for writs of certiorari, prohibition and mandamus. Parish of St. Tammany. No. 65012/3.

Denied.

CALOGERO, J., would order an eviden-tiary hearing.


text:
    Larry JOHNSON v. Gothard RECK, United Services Automobile Association, and Coty Michell, a/k/a Coty Michel.
    No. 82-C-1111.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Gothard Reck, Coty Michel, and United States Automobile Association, applying for supervisory writs. Parish of Orleans. No. 81-1480.

Denied.

DIXON, C. J., and BLANCHE and WATSON, JJ., would grant and reverse, ordering the recusal of the trial judge.


text:
    STATE of Louisiana v. Rogers J. RICHARD.
    No. 82-K-1123.
    Supreme Court of Louisiana.
    May 28, 1982.
   In re Rogers J. Richard, applying for writ of certiorari. Parish of Lafayette. No. 80-7531.

Denied.


author: WATSON, Judge. DOUCET, Judge, STOKER, Judge. WATSON, Judge,

text:
    Herbert HEYMANN v. Carolyn Cecile LEWIS.
    No. 6995.
    Court of Appeal of Louisiana, Third Circuit.
    June 15, 1979.
    On Rehearing Nov. 12, 1979.
    Reggie, Harrington & Boswell by Oscar W. Boswell, II, and Edmund M. Reggie, Crowley, for defendant-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Joseph Onebane and Daniel G. Foumerat, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON, SWIFT, STOKER and DOUCET, JJ.
   WATSON, Judge.

This is the appeal of a judgment changing custody of two girls from the mother to the father. The principal issue posed is whether the best interests of the children require that the custody be changed.

Herbert Heymann and Carolyn Cecile Lewis (sometimes referred to as Ms. Hey-mann) were married on February 20, 1948. Of their union, three children were born, but the eldest, Claire, is not involved in these proceedings except as a witness.

The custody of the two younger children, Lila Rosamond, age 12, and Joan Germaine, age 11, is disputed in this rule proceeding.

The Heymanns were separated by judgment of October 7, 1977, which granted a separation in favor of Herbert Heymann, but awarded custody of Lila and Joan to Carolyn Cecile Lewis while reserving “broad and reasonable visitation rights” to the father. (TR. 145-146).

Much of the suit record is composed of proceedings relative to the substantial properties owned by the parties. There is no indication that evidence was taken concerning the custody of the children, and apparently, the allocation of their custody to the mother in the judgment of separation was by agreement. Thus, the custody disposition was not a “considered decree” within the contemplation of Fulco v. Fuleo, 259 La. 1122, 254 So.2d 603 (1971).

On June 1, 1978, Herbert Heymann filed a rule against his separated wife to show cause why custody should not be changed to him, alleging that Carolyn Cecile Lewis had failed to provide a stable homelife for the children; that she had exposed them to improper influences; that she was not a fit person to rear the children; and that their best interests would be served by placing them in his custody. (TR. 339).

The rule was tried with the presentation of several witnesses on behalf of each party.

The trial court, stating that it was applying the amended Art. 157 of the Civil Code in accordance with the case of Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La., 1978), (which states that the courts must look less to the jurisprudence and more to the legislative will), entered an order changing custody from the mother to the father, reserving “broad visitation rights” to the mother. (TR. 445-446). The mother has appealed.

No purpose would be served by reviewing, in detail, the testimony presented for the reason that much of it had little or no relevancy to the custody issue. However, we will summarize the evidence as follows:

Carolyn Cecile Lewis was cross-examined at length concerning her trips in connection with her antique business and her encounters with one Jerry Garner, a merchant seaman, in whom she had a romantic interest. However, the trial court found, and we agree, that “... There is no testimony whatsoever of an adulterous relationship between Mr. Garner and Ms. Heymann and no evidence of any impropriety in front of the children.” (TR. 444).

Mr. Heymann testified that his principal objection to his separated wife’s having custody was that he did not like some of her friends. He admitted that he also had a romantic interest, one Janice Ingham, who had been on skiing trips with him.

The eldest Heymann child, Claire, and her separated husband, William Clark, testified in favor of Mr. Heymann.

Certain of William Clark’s testimony related to an unlawful substance which Mr. Heymann testified he found in Ms. Hey-mann’s purse while Clark was present. While testimony was adduced as to the nature of this substance, no mention was made by the trial court concerning this topic in the reasons for judgment. We perceive no reason to assign weight to this testimony.

One witness testified as to the use of bad language by James Garner, who incidentally did not testify.

Two witnesses, longtime friends of the family, a Ms. Cashere and a Ms. Miciotto, stated their opinion that Ms. Heymann takes very good care of the two young girls and that they would be in a better situation under her continued custody than that of Mr. Heymann.

While this court recognizes that much weight is to be given the trial court’s judgment in matter of custody, we find no basis whatsoever for the change of custody in the present case. This court has taken the position that the so called “double burden” rule of Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955), has been severely limited, if not entirely abrogated. Bushnell v. Bushnell, 348 So.2d 1315 (La.App. 3 Cir. 1977); Bourque v. Leger, 322 So.2d 784 (La.App. 3 Cir. 1975). Nevertheless, a litigant who demands a change in custody must prove his case, that is, he must make a showing that the best interests of the child or children require that the custody be changed. Absent such a showing, the litigant’s demands must be rejected.

There is nothing in the present record that establishes a reason for making a change; in fact, the contrary appears. It was established that these are girls of an age approaching puberty. They have always lived with their mother. These circumstances alone strongly militate for the continuation of their care, custody and control by the mother. The present record indicates that in their mother’s custody they will continue to live in the same familiar surroundings in which they have always lived. They enjoy regular and frequent visitation with Mr. Heymann.

Analyzed under the wording of Civil Code Article 157, quoted at footnote (2) supra, which is that custody is to be awarded in “the best interest of the child or children”, the record does not support the judgment in favor of Mr. Heymann. The only two disinterested witnesses supported the mother. The eldest daughter favored Mr. Heymann because she finds her mother’s boyfriend “crude”. (TR. 667). The age and sex of the children favor the mother’s custody. As loath as we are to disagree with our esteemed brother of the trial court, we find he clearly erred in awarding custody to Mr. Heymann. The evidence simply does not support the conclusion that their best interests lie in being in their father’s custody.

Therefore, the judgment of the trial court is reversed and set aside. The provisions of the judgment of October 7, 1977, awarding the custody of Lila Rosamond Heymann and Joan Germaine Heymann to Carolyn Cecile Lewis Heymann, together with all other incidents of the said judgment, are reinstated.

Costs of these proceedings, at trial and on appeal, are taxed to Herbert Heymann.

REVERSED AND RENDERED.

DOUCET, J., dissents and assigns written reasons.

CULPEPPER, J., dissents for the reasons assigned by DOUCET, J.

DOUCET, Judge,

dissenting.

The principles governing custody awards were set forth by our Supreme Court in the following language from the opinion in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971):

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958) and jurisprudence therein cited; see also Moosa v. Abdalla, 248 La. 344, 178 So.2d 273.

“(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958); Boatner v. Boatner, 235 La. 1, 102 So.2d 472 (1958); Tullier v. Tullier, 140 So.2d 916 (La.App.1962) (citing numerous decisions of this court to such effect). “(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952); Nugent v. Nugent, 232 So.2d 521 (La.App.1970) (citing numerous court of appeal decisions to such effect).

“(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952).”

The issue of the continued viability of the “maternal preference rule” set forth in paragraph (2) of the above quote has aroused much debate before both this court and the trial court. The majority notes that the trial court stated that it was applying amended Article 157 in accordance with Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978). It is clear from a reading of the trial court’s written reasons for judgment that it did not consider the maternal preference rule to be valid and binding on the courts of this state. I believe that position to be absolutely correct.

Although the majority does not invoke that rule to support its decision to reverse, as I view the facts, its application (although erroneous) provides the only reasonable justification for that decision. Otherwise, violence is done to the other principles set out in Fulco v. Fulco, supra.

The maternal preference rule was developed by the courts and used by them in implementing the directive contained in Article 157 of the Civil Code. Prior to 1977 the first sentence of that provision read:

“In all cases of separation and of divorce the children shall be placed under the care of the party who shall have obtained the separation or divorce unless the judge shall, for the greater advantage of the children, order that some or all of them shall be entrusted to the care of the other party.”

In recent years, the rule has not been applied to the extent prescribed in Fulco v. Fulco, supra. For example, in Welch v. Welch, 307 So.2d 737 (La.App. 2nd Cir. 1975), the mother was specifically found not to be unfit, yet custody was awarded to the father. See also, Caraway v. Caraway, 321 So.2d 405 (La.App. 2nd Cir. 1975). In cases such as these, the rule was said to merely establish a rebuttable presumption, operating in favor of the mother. Thus, the jurisprudential rule was said to have suffered considerable erosion. See Hays v. Hays, 365 So.2d 563 (La.App. 1st Cir. 1978).

Article 157 was amended by Act 448 of 1977; the first sentence now reads:

“In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children.”

The obvious purpose of that amendment was to equalize the positions of the parents in custody disputes. The standard to be applied is the furtherance of the best interests of the children. By imposing such an intentionally broad standard, unembellished by the legal presumption created by the maternal preference rule, the legislature vested the trial court with wide latitude in making its determination. Apparently cognizant of this fact, the legislature in the 1977 amendment to LSA-Civil Code Article 157 aided the trial court in its task by making it mandatory that custody hearings be held in the private chambers of the judge. The trial court is thus given a better opportunity to enjoy the benefit of pertinent testimony, relative to personal and private matters, which the witnesses might otherwise be more reluctant to freely discuss in a spectator-filled courtroom.

Article 157, in its present form, does not establish a preference for either parent. I believe that to continue to adhere to the maternal preference rule is to repeat the error pointed out by our Supreme Court in Ardoin v. Hartford Ace. & Ind. Co., supra, wherein the Court stated:

“[T]he appeals court measured the enactment solely against language contained in a judicial opinion. The basic error in this method of interpretation is that it not only ignores the first principles of our law but it also assumes that jurisprudence is equivalent to legislation instead of treating it as judicial interpretation which may or may not adequately reflect the meaning of the laws for contemporary purposes.”

Much could be said about what prompted our legislature to amend Article 157, including the changing roles of men and women in our contemporary society. However, whatever the reasons, our legislature has clearly spoken, and we should act in accordance with this sound directive from our highest court.

As the majority points out, the original custody award in this case was not a “considered decree” within the contemplation of Fulco v. Fulco, supra. Therefore, Mr. Hey-mann did not bear the heavier burden of proof in such cases, which was detailed in paragraph (3) of the above language from that opinion. See also, Monsour v. Monsour, 347 So.2d 203 (La.1977) and Hays v. Hays, supra. His burden was simply to show that his custody of his children would be in their best interest.

The record shows that Mrs. Heymann has exhibited behavior which is not conducive to a stable and harmonious home life for these children. In addition to pursuing a romantic relationship which has obviously caused her family and friends a great deal of discomfort, she has frequently been absent from the home. Her activities are conducted in an erratic and unpredictable manner, which is disconcerting to those who depend on her. According to Mrs. Hey-mann’s testimony, her daughters, ages 11 and 12, are well versed on the subject to their physical maturation and development, the responsibility for their education in that area having been largely assumed by their school.

In contrast to the above, the record shows that Mr. Heymann is a man of regular, dependable and temperate habits. He has tried to make himself available to his daughters when they might need his assistance in their studies, etc. The family has always had the means to employ others to assume many of the domestic burdens of their everyday life. The record shows that the employees who are presently performing these services for the children have been with the family for some time and could continue to do so in Mr. Heymann’s home. The Heymanns’ eldest daughter, Claire, testified that on several occasions she has assisted her younger sisters, when they needed guidance on matters of dressing and grooming. She evidently would continue to be available in this capacity if necessary.

After hearing all of the testimony of the various witnesses, including the parties, the trial court determined that it would be in the best interest of these children for them to be placed in their father’s custody, subject to broad visitation rights reserved to their mother. That determination is entitled to great weight and should not be disturbed in the absence of manifest error. Fulco v. Fulco, supra; Schexnayder v. Schexnayder, 364 So.2d 1318 (La.App. 4th Cir. 1978); Craft v. Craft, 184 So.2d 758 (La.App. 3rd Cir. 1966).

Despite the fact that the trial court was in a far better position to evaluate the conduct and character of the parties as well as the. credibility of the other witnesses, the majority has substituted its judgment, based on a reading of an inanimate record. I believe that Mr. Heymann has borne his burden here. Although I believe that the maternal preference rule has been legislatively eliminated, the remaining principles expressed in Fulco v. Fulco, supra, are still applicable. Because I feel that the action taken by my brothers of the majority does not conform to those wise directives, I respectfully dissent.

Before CULPEPPER, WATSON, SWIFT, STOKER and DOUCET, JJ.

ON REHEARING

STOKER, Judge.

This matter was before the court on original hearing to determine whether the best interests of the children of the parties required that the custody be changed. The trial court had ordered a change, and we reversed through a majority vote. On application for rehearing by the plaintiff father, we granted a rehearing limited to the question of whether the interests of the children would best be served by a remand of the case to the district court for the taking of additional evidence and deciding the question anew based upon such evidence as might be shown. In his application, plaintiff-appellee, Herbert Heymann, moved alternatively for such a remand. The basis for the alternative relief requested was that certain facts which were relied upon by the majority on original hearing were no longer true. This fact was the assumption that the mother of the children, defendant Carolyn Cecile Lewis, would maintain her home and that of her children in Lafayette and the State of Louisiana. In connection with the motion to remand, it was suggested to the court through affidavit form that this assumption was not true, and the basis for the majority opinion was in error.

Although we may not take cognizance of matters not included in the record of trial, special considerations apply here. It is basic and axiomatic that questions of child custody and visitation rights are never final. Changes in circumstances may justify a change or adjustment in custody and visitation rights. Citation of authority is unnecessary for this legal principle. While the views of the judges who heard this case on original hearing, which were in fact divided, have not changed, a majority have voted to remand. This majority takes this action based upon several considerations.

To begin with, it will result in speedier judicial administration. We recognized that, if the facts and situation upon which our majority opinion was based have actually changed, plaintiff-appellee could bring a new action for custody change based on the alleged changed circumstances. However, inasmuch as we have no res judicata considerations to prevent a remand, we regard a remand as the most appropriate course. If, in fact, new evidence justifies the trial court’s award of custody to plaintiff-appel-lee, the welfare of the children involved requires that it be acted upon expeditiously and without delay.

A further point influencing us in our decision to remand is that such action, in the normal course of judicial administration and procedure, will bring the matter before the same district judge who heard the case originally.

Finally, we believe that if the matter is to be recognized, a remand will be the least expensive mode of doing so, and will be less burdensome on the judicial system than would the filing of a new suit by plaintiff-appellee.

With respect to authority to remand the case for the purpose of taking new evidence, our authority is broad. LSA-C.C.P. art. 2164. The remanding of cases for additional proof of evidence to serve the ends and interest of justice is well settled. Turpin v. Turpin, 175 So.2d 357 (La.App. 2nd Cir. 1965) appeal after remand 186 So.2d 650 (La.App. 2nd Cir. 1966), application denied 249 La. 580, 187 So.2d 741 (1966); State, Through Department of Highways v. Pommier, 270 So.2d 274 (La.App. 3rd Cir. 1972); McKinney v. Levy, 212 So.2d 279 (La.App. 3rd Cir. 1968) and Poirier v. T. L. James & Co., Inc., 163 So.2d 171 (La.App. 4th Cir. 1964).

For the foregoing reasons the ends of justice and the best interests of the children involved require that we remand this case to the trial court for a reopening of the case, for the taking of additional evidence as may be relevant, and for disposition by the trial court thereafter on the basis of such additional evidence as may be received.

Therefore, it is ordered that the judgment of the trial court be, and it is hereby, annulled, avoided, reversed and set aside; the judgment and decree of this court on original hearing is likewise set aside; it is now ordered that this cause be, and it is hereby, remanded to the district court for further proceedings, for the introduction of additional evidence by either party, and the trial court is instructed to render such judgment as may be warranted by the evidence already contained in the record and such new evidence as the parties may see fit to introduce. Plaintiff-appellee is east for the costs of this court.

DECREE ON ORIGINAL HEARING SET ASIDE, REVERSED AND REMANDED.

WATSON, J., dissents and assigns reasons.

WATSON, Judge,

dissenting.

After studying the application to remand, I have concluded to vote against it. I would have voted for a remand if an application had been made prior to the rendering of the original opinion. It seems to me that the usual procedure of requiring the father, at this juncture, to file a new rule for custody would be better than remanding for additional evidence. I share the opinion advanced by counsel for the mother that there are many custody cases in which circumstances change and in which an application for remand might be filed while the matter is on appeal. To remand now is not in the interest of the orderly administration of justice.

Therefore, I respectfully dissent from the order granting the remand.

      . It is interesting to note that two doctors, presumably psychiatrists or psychologists, attended the hearing and remained present during the testimony. Counsel for plaintiff-in-rule requested that they be allowed to listen to the other witnesses because of their expert status. They were not called as witnesses. We find unnecessary a consideration of the persuasive argument by counsel for defendant-in-rule that a presumption should follow the failure of plaintiff-in-rule to present their testimony.

      . LSA-C.C. art. 157:
      “A. In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children. Such custody hearing shall be held in private chambers of the judge. In no event shall the pendente lite custody rights presently existing be affected by this Act. The party under whose care the child or children is placed, or to whose care the child or children has been entrusted, shall of right become natural tutor or tutrix of said child or children to the same extent and with the same effect as if the other party had died.
      “B. If subsequent to the granting of a divorce or separation one of the parties to the marriage dies and is survived by a minor child or children of the marriage, the parents of such deceased party may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interests of the child or children.”

      . All members of the court do not agree; see dissent by Domengeaux, J., in Bushnell. Neither do the Circuits. See Languirand v. Languirand, 350 So.2d 973 (La.App. 2 Cir. 1977). The problems involved in working out rules or “guidelines” for custody cases are not easily solved. Observe the difficulties encountered by the Note at 38 La.L.Rev. 1096, in criticizing Bushnell for using “rigidly applied rules” (38 La.L.Rev. 1107) while calling for “a precisely worded set of guidelines”. (38 La.L.Rev. 1108).

      . An ex parte affidavit attached to a motion for remand can form no part of a record on appeal but may be noted on a question of whether or not to remand a cause for taking additional evidence. State, Through Department of Highways v. Pommier, 270 So.2d 274 (La.App. 3rd Cir. 1972).


author: CUTRER, Judge.

text:
    Oscar SYLVESTER, Jr., Plaintiff-Appellant-Appellee, v. ST. LANDRY PARISH POLICE JURY, et al., Defendants-Appellees-Appellants.
    No. 8458.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.
    Writ Denied June 21,1982.

      Pucheu, Soileau & Cored, C. Brent Cored, and Fruge & Vidrine, Jack C. Fruge, Sr., Vide Platte, for plaintiff-appellant-appellee.
    Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for defendants-appel-lees-appellants.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This case was consolidated for trial with the suit of Oscar Sylvester, Jr. v. St. Landry Police Jury, et al., Number 8459 on the docket of this court. These suits remained consolidated on appeal and, since the law and relevant facts are common to both, our opinion here is equally applicable. However, we render a separate judgment for such consolidated case of Oscar Sylvester, Jr. v. St. Landry Police Jury, et al., 414 So.2d 796 (La.App. 3rd Cir. 1982).

FACTS

Due to a multiplicity of pleadings arising from these suits and the appeals by the parties, we feel that a chronological explication of the major procedural activities will be beneficial in clarifying the issue presented in these appeals.

Oscar Sylvester, Jr., owns a tract of land in the northwest corner of St. Landry Parish. The only access to his property is by gravel road commonly referred to as “Oscar Sylvester Road” but designated on the highway map of St. Landry Parish as “Parish Road 5-245.” This road traversed property owned by Milbert St. Amand (the pleadings erroneously refer to him as Mil-burn St. Amand).

On July 6, 1977, the Police Jury, by resolution, declared Road 5-245 a public road and also expressed the intention of maintaining it. On July 28,1978, Sylvester filed a suit for a declaratory judgment seeking to have Road 5-245 declared a public road pursuant to LSA-R.S. 48:491, or, alternatively to have a servitude of passage by ten •years acquisitive prescription recognized in his favor. Defendants in that suit were St. Amand and the Police Jury. After the suit was filed, the Police Jury, on September 6, 1978, by resolution declared Road 5-245 to be a private road.

On June 1, 1979, Sylvester filed a “Petition for a Writ of Injunction” seeking a temporary restraining order and preliminary injunction to prevent St. Amand from constructing a gate or fence across the road which would prevent Sylvester’s access to his property. The petition for injunction alleged that St. Amand had begun the construction of a gate across the road and that an injunction was necessary to prevent such action since the previously filed petition for a declaratory judgment was pending. Such litigation was filed for the purpose of determining whether the road was public or private. A temporary restraining order was issued and a hearing date set; however, the parties entered into a “Consent and Stipulated Judgment.” The substance of the judgment was that St. Amand granted Sylvester the use of the road for passage to and from his farm for an annual consideration of $2,500.00. This judgment was signed June 25, 1979.

On July 6, 1979, Sylvester filed this second “Suit for Declaratory Judgment and for Damages,” alleging the public nature of Road 5-245. The petition also alleged that the Police Jury had, by resolution, abandoned Road 5-245 on April 3, 1979. The petition attacks the validity of that resolution.

An exception of no cause of action was filed by the Police Jury in the consolidated declaratory judgment cases. An exception of res judicata was filed in the cases by St. Amand. The trial court overruled the Police Jury’s exception of no cause of action and granted St. Amand’s exception of res judicata. The suits were dismissed as to St. Amand.

The Police Jury appealed the trial court’s overruling of the exception of no cause of action in both cases. A motion to dismiss that appeal by the Police Jury has previously been granted by this court which ruled that the trial court’s overruling of the exception of no cause was a non-appealable interlocutory judgment. Sylvester v. St. Landry Parish Police Jury, 401 So.2d 689 (La.App. 3rd Cir. 1981).

In a footnote, this court stated:

“The plaintiff, Oscar Sylvester, Jr., appealed the judgment of the trial court sustaining defendant’s peremptory exception of res judicata. That appeal is not affected by the dismissal of the appeal taken by the St. Landry Parish Police Jury.”

ISSUE

We must now make a determination as to whether the trial court erred in granting St. Amand’s exception of res judicata.

Defendant, St. Amand, bases his exception of res judicata upon the “Consent and Stipulated Judgment” between himself and Sylvester arising out of the suit for injunction. St. Amand argues that this “judgment” fully and finally resolves the issues set forth in the declaratory judgment suits as well as the suit for a temporary restraining order and a preliminary injunction. We disagree.

RES JUDICATA

The essential elements of res judicata were discussed by the Supreme Court in the case of Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978):

“As a result of civilian heritage, res judicata under Louisiana Law is perceived to be much narrower in scope than its counterpart in common law jurisdictions. See 52 Tul.L.Rev. 611 (1977); Maloney, Preclusion Devices in Louisiana; Collateral Estoppel, 35 La.L.Rev. 158 (1974). Louisiana legislative authority for res judicata establishes a presumption of correctness and precludes relitigation of the object of the judgment only when there is (1) an identity of the parties, (2) an identity of ‘cause’ and (3) an identity of the thing demanded. C.C. 2285-2287, 3556(31); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sliman v. McBee, 311 So.2d 248 (La.1975); Scurlock Oil Co. v. Getty Oil Co., 294 So.2d 810 (La.1974). The absence of any of these identities is fatal to a plea of res judicata.”

As we examine the “Consent and Stipulated Judgment” rendered in the suit for injunction, it becomes readily apparent that the trial court erred in sustaining the exception of res judicata. There is an absence of identities in the “thing demanded” in the suit for injunctive relief and both declaratory judgment suits. In the suit for injunc-tive relief, Sylvester merely wanted to insure his use of Road 5-245 pending the outcome of the declaratory judgment suit. The effect of the stipulated judgment was to dispose of the suit for such injunctive relief but such judgment did not dispose of Sylvester’s demand for a declaratory judgment to have the road declared a public road. The “object of the judgment” or the “thing demanded” in the injunctive suit is not the same as the “thing demanded” in the declaratory judgment suits. The absence of the identity of the “thing demanded” in these suits is fatal to the plea of res judicata. See Simon v. Broussard, 216 So.2d 668 (La.App. 3rd Cir. 1969). The trial court’s judgment sustaining the exception of res judicata filed by St. Amand will be reversed and set aside.

For the reasons assigned, the judgment of the trial court is hereby reversed and set aside. The case is remanded for further proceedings according to law and the views expressed herein. The costs of this appeal shall be paid by St. Amand. The costs of the trial court shall await the outcome of the trial on the merits.

REVERSED AND REMANDED.

      1. LSA -C.C: art. 2286 provides:
      “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”


text:
    Oscar SYLVESTER, Jr., Plaintiff-Appellant-Appellee, v. ST. LANDRY PARISH POLICE JURY, et al., Defendants-Appellees-Appellants.
    No. 8459.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.
    Writ Denied June 21, 1982.
    Pucheu, Soileau & Coreil, C. Brent Cored, and Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for plaintiff-appellant-appellee.
    Edwards, Stefanski & Barousse, Nolan J. Edwards, Crowley, for defendants-appel-lees-appellants.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

For the reasons assigned in Oscar Sylvester, Jr. v. St. Landry Parish Police Jury, et al., 414 So.2d 793 (La.App. 3rd Cir. 1982), Docket Number 8458, judgment is reversed and set aside. The case is remanded for further proceedings according to law and the views expressed herein. The costs of this appeal are to be paid by St. Amand. The costs of the trial court shall await the outcome of the trial on the merits.

REVERSED AND REMANDED.


author: DOMENGEAUX, Judge.

text:
    Levy DYER, Plaintiff-Appellant, v. Robert GOLEMAN, Defendant-Appellee.
    No. 8630.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Stephen E. Everett, Alexandria, for plaintiff-appellant.
    Broussard, Bolton & Halcomb, Frank R. Bolton, Jr., Alexandria, for defendant-ap-pellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   DOMENGEAUX, Judge.

In this workmen’s compensation suit plaintiff-appellant, Levy Dyer, seeks workmen’s compensation benefits from the defendant-appellee, Robert Goleman. From a judgment rejecting his demand, plaintiff has perfected this appeal.

The only issue on appeal is whether or not the trial court erred in holding that plaintiff is not entitled to workmen’s compensation benefits because he was not an employee of defendant within the meaning of the Louisiana Workmen’s Compensation Act.

Plaintiff, a carpenter by trade and a neighbor of defendant in the Hineston community of Rapides Parish was hired by defendant to help with some carpentry work on a barn. The property on which the barn was located is defendant’s residence and is afforded homestead exemption by the Rap-ides Parish tax assessor.

On or about August 4, 1980, while performing carpentry work on defendant’s barn, plaintiff fell from a rafter fracturing his knee. He was treated for this injury and returned to his former occupation sometime in February, 1981.

This suit was filed by plaintiff on October 27, 1980, for workmen’s compensation benefits, medical benefits, and statutory penalties and attorney’s fees. Defendant is uninsured for workmen’s compensation coverage. Trial was held on May 22, 1981, reasons for judgment were delivered on June 16,1981, and judgment was signed June 19, 1981, denying compensation benefits to plaintiff. He appeals from this denial. We affirm.

The sole legal question to be decided by this court is based upon the application of the foregoing factual situation to the provisions of La.R.S. 23:1035.

La.R.S. 23:1035 reads as follows:

“The provisions of this Chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his own trade, business, or occupation, or in the course of his employer’s trade, business, or occupation, except that the bona fide president, vice-president, secretary, and treasurer of a corporation who owns not less than ten percent of the stock therein, or a partner with respect to a partnership employing him, or a sole proprietor with respect to such sole proprietorship may be written agreement elect not to be covered by the provisions of this Chapter. Such election shall not be limited, but shall apply to all trades, businesses, or occupations conducted by said corporations, partnerships, or sole proprietorships. Such an election shall be binding upon the employing corporation, partnerships, and sole proprietors and the widow, relatives, personal representative, heirs, or dependents of the officer, partner, or sole proprietor so electing. No salary or compensation received by any such bona fide corporate officer, partner, or sole proprietor so electing shall be used in computing the premium rate for workmen’s compensation insurance.”

Prior to 1979, the pertinent provisions of the Louisiana Workmen’s Compensation Act, Section 1035, provided as follows:

“Provisions of this chapter shall also apply to every person performing services or arising out of and incidental to his employment in the course of his employers trade, business or occupation .... ”

In 1979, by Act 465, the legislature amended this statute to read, in pertinent part, as follows:

“The provisions of this chapter shall also apply to every person performing services arising out of and incidental to his employment in the course of his own trade, business or occupation or, in the course of his employers trade, business or occupation _”

It is plaintiff’s contention that the addition of the lánguage “in the course of his own trade, business, or occupation” was intended to expand the coverage of the Workmen’s Compensation Act to provide coverage for any person performing manual labor so long as they were engaged in their own trade, business or occupation, regardless of whether they were engaged in the furtherance of their employer’s trade, business, or occupation. We disagree.

We opine that the basic intent of the statute as amended was to enable persons who are working contractors to provide their own workmen’s compensation coverage and to be covered by workmen’s compensation insurance if they are engaged in their own trade, business or occupation. The obvious problem with plaintiff’s interpretation would be that anyone who comes to a private residence and does manual labor would subject the homeowner to workmen’s compensation liability, even though the labor was not performed in furtherance of the trade, business or occupation of the homeowner.

Furthermore, we feel that such an expansion of coverage, as argued by plaintiff, was not intended by the legislature. This is evident from the passage of Act No. 827 of 1981 entitled “Workmen’s Compensation— Exclusion of Persons Employed by a Private Residential Household” which in pertinent part, added Subsection B to La.R.S. 23:1035 which reads as follows:

“B. There is exempt from coverage under this Chapter all labor, work, or services performed by any employee of a private residential householder in connection with the private residential premises of such householder and which labor, work, or services are not incidental to and do not arise out of any trade, business, or occupation of such householder. With respect to such labor, work, or services and any employee performing the same, a private residential householder shall have no liability under the provisions of this Chapter either as employer or as a principal; however, any person who is engaged in the trade, business, or .occupation of furnishing labor, work, or services to private residential premises shall be liable under the provisions of this Chapter to his employees or their dependents for injury or death arising from and incidental to their employment in rendering such labor, work, or services.”

It is also clear to this court from a reading of the record that plaintiff was not employed in the course of defendant’s trade, business or occupation so as to be covered under the workmen’s compensation act. The evidence indicates that the defendant owned a few acres of land with a home and some outbuildings, including a barn and a shed. The defendant has worked as a steady employee for the U. S. Forest Service for many years, and does not engage in any other work or occupation.

Plaintiff contends that at the time of the accident defendant was engaged in a “business” within the meaning and intendment of the Workmen’s Compensation Statute. The evidence indicates that defendant does have some horses and chickens, and had three cows at the time of the accident in question. He utilizes the products from his stock and garden for consumption by him and his family and on one occasion he sold one of his calves for $100.00.

The trial court determined that the products from his stock and garden are for his personal use only, and are not a result of his occupation or trade. An appellate court will not disturb a trial court’s factual determinations unless the record reveals that the trial court’s decision is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We cannot say that the trial court’s determinatiqn is clearly wrong.

In conclusion plaintiff had the right, under the 1979 amendment to La.R.S. 23:1035 to provide his own workmen’s compensation coverage which would have provided benefits for an injury to himself while he was performing services arising out of and incidental to his employment in the course of his trade as a carpenter. Plaintiff chose not to provide himself with such coverage, and as such, is not entitled to recover workmen’s compensation from defendant inasmuch as he was not engaged in the trade, business or occupation of the defendant.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against the plaintiff-appellant.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Sallie Ann GUILLORY v. AVONDALE SHIPYARD, INC., and The Travelers Insurance Company. Merlin PONTIFF v. AVONDALE STEEL SALES; Division of Avondale Shipyards, Inc., et al.
    Nos. 14554, 14555.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied June 23, 1982.

      Michael J. Samanie, Houma, for plaintiff and appellee in No. 14555.
    Joseph A. Reilly, Jr., Houma, for defendants and appellants.
    Felix A. DeJean, III, Opelousas, for plaintiffs and appellees.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

This action ex delicto raises issues involving the correctness of a directed verdict for plaintiff and the reasonableness of the amount of damages awarded to plaintiff.

Plaintiffs, Sallie Guillory and Merlin Pontiff, were riding a motorcycle in an eastbound direction on Louisiana Highway 20. Guillory was the owner of the motorcycle, but Pontiff was driving. Guillory and Pontiff had become separated from a friend, Eric Aucoin, who was riding on another motorcycle and they were attempting to catch up to him. Pontiff came up behind a line of four vehicles. The lead vehicle was an automobile, followed by Aucoin. There were two tractor-trailer trucks behind Au-coin. The first belonged to Avondale Shipyards and was driven by Clifford Collins. The second truck was driven by Charles Stansbury. Pontiff passed the truck driven by Stansbury without incident and began to pass the Avondale truck. When the motorcycle carrying Guillory and Pontiff was even with the cab of the Avondale truck, Collins began to change lanes, striking the motorcycle. The impact of the collision caused the motorcycle to leave the road, resulting in serious injuries to both Guillory and Pontiff.

Pontiff filed suit for damages against Avondale Steel Sales, a division of Avon-dale Shipyards, Inc.; Clifford Collins; and The Travelers Insurance Company, Avon-dale’s liability insurer. Guillory also filed suit, naming as defendants Avondale Shipyard, Inc. and The Travelers Insurance Company. The defendants answered both petitions, denying any negligence on the part of Collins and asserting contributory negligence on the part of Pontiff as well as contributory negligence and assumption of the risk by Guillory. Additionally, the defendants filed a third party demand against Pontiff in the Guillory suit, alleging that his negligence was the cause of the accident and seeking indemnity or, alternatively, contribution. Upon defendants’ motion, the two cases were consolidated for trial on the merits. However, Pontiff’s suit against the defendants was compromised and settled and was, therefore, dismissed upon joint motion of the parties.

Guillory’s suit proceeded to a trial before a jury. After plaintiff and defendants rested their cases, the trial court, on motion of the plaintiff, directed a verdict in favor of Guillory and against Avondale on the issues of negligence, contributory negligence and assumption of the risk. The issue of quantum was submitted to the jury on the basis of a special verdict form. The trial court entered judgment on the jury verdict in favor of plaintiff as follows:

“a. Past physical pain and suffering_$ 50,000.00
b. Future physical pain and suffering_ 50,000.00
c. Past mental anguish_ 25,000.00
d. Future mental anguish_ 25,000.00
e. Disability_ 50,000.00
f. Disfigurement_ 50,000.00
g. Past medical expenses_ 11,359.89
h. Future medical expenses_ 75,000.00
i. Past loss of earnings_ 2,500.00
j. Future loss of wages_ 60.000.00
Total -$398,859.89"

Defendants’ motion for a new trial or, in the alternative, for a remittitur, was denied.

Defendants have appealed, raising several specifications of error. They assert that the trial court erred in directing a verdict in favor of plaintiff on the issue of liability. Additionally, they assert that the form of the special verdict contained duplicitous items of damages and that the amount of the award was excessive. Because our conclusion that the trial court erred in granting the directed verdict requires reversal, only the specification dealing with that issue will be considered.

Directed verdicts are authorized in civil jury trials by LSA-C.C.P. art. 1810, which provides, in pertinent part, as follows:

“A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

The standard for granting a directed verdict is that which is applied in the federal courts. Tirante v. Gulf States Utilities Company, 412 So.2d 128 (La.App. 1st Cir. 1982); Gunter v. Planche, 399 So.2d 727 (La.App. 1st Cir. 1981); Grimes v. Stander, 394 So.2d 1332 (La.App. 1st Cir. 1981); Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979). That standard was set forth in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969):

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

In granting the directed verdict, the trial court relied on our Supreme Court’s decision in Simon v. Ford Motor Company, 282 So.2d 126 (La.1973). Simon established a rule of strict accountability on the part of a driver who is involved in an accident outside of his own traffic lane:

“When a driver on his wrong side of the road collides with another car which is in its correct lane of traffic, the driver is required to exculpate himself of any fault, however slight, contributing to the accident.”

The trial court held that this strict accountability standard was applicable in the instant case because Collins’ truck was not in its lane of travel when the collision occurred. He concluded the defendants had not met their burden of showing that Collins was free from any fault, however slight, which contributed to the accident.

Defendants assert that the trial court erred in applying the Simon rule to the facts of the instant case. We agree. Application of the Simon standard requires more than the mere occurrence of an accident outside of the defendant’s lane of travel. The decision in Simon specifically refers to “the burden of the motorist who leaves his proper lane of the highway to injure a blameless person proceeding properly in the opposite lane.... ” In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the Supreme Court, presented with an accident where the defendant had struck the rear of the plaintiff’s vehicle, made the following observation:

“The normal burden of proof in a personal injury case is upon the plaintiff. However, in exceptional cases when a plaintiff-motorist is without fault (such as when he is in his own lane and is struck head-on by an oncoming motorist, as in Simon v. Ford Motor Co., 282 So.2d 126 (La.1973)), ‘the driver is required to exculpate himself of any fault, however slight, contributing to the accident.’ Simon v. Ford Motor Co. [La.1973], 282 So.2d 126, 133.”

It is clear that the Simon standard should be applied only in those “exceptional cases” which suggest, by their very occurrence, a negligent defendant and a blameless other driver. An accident between two vehicles proceeding in the same direction, while one is passing the other, is not such a case. A number of cases have applied the standard of Simon v. Ford Motor Co., but our search has turned up none which does so in the context of an accident which occurs in a passing situation between two automobiles traveling in the same direction. In fact, we have been unable to find any decisions which applied the Simon standard to accidents involving anything other than head-on collisions. We conclude that the accident scenario in the instant case, one vehicle striking another which is passing it on a two-lane highway, is not the type of “exceptional case” which warrants imposition of the Simon standard.

Having determined that the trial court improperly applied the Simon standard in this case, we now must decide whether the evidence supports the granting of a directed verdict on the issue of defendants’ liability. Five eyewitnesses testified with regard to the facts of the accident. They were Sallie Guillory, the plaintiff; Merlin Pontiff, driver of the motorcycle on which Guillory was riding; Eric Aucoin, a friend of Guillory and Pontiff who was riding the preceding motorcycle; Clifford Collins, driver of the Avondale truck; and Charles Stansbury, who was driving the truck which was the first to be passed by the motorcycle bearing Guillory and Pontiff.

Merlin Pontiff testified that he was attempting to catch up to Aucoin when the accident occurred. Pontiff testified that he passed the truck driven by Stansbury and pulled in between it and the Avondale truck. As soon as an oncoming vehicle passed, he then attempted to pass the Avon-dale truck. Pontiff estimated that the motorcycle was six feet to the left of the center line as he passed the truck and that the truck was two feet to the right of the center line. Although he estimated that the two vehicles were eight feet apart when Collins pulled his truck over, Pontiff testified that he had no time to react in order to avoid the collision.

Sallie Guillory’s testimony was substantially in accord with that of Pontiff. One significant variation, however, was her estimate that the motorcycle was two and one-half to three feet left of the center line when Collins pulled his truck over.

Eric Aucoin was in front of the accident when it occurred. However, he testified that he did look back as Pontiff was passing the Avondale truck and estimated that the motorcycle was about three feet from the center line.

Clifford Collins testified that he was driving west on LA 20 behind the motorcycle carrying Aucoin. He testified that Aucoin pulled his motorcycle to the right of the road, slowed down and motioned for him to pass. Collins stated that after waiting for oncoming traffic to pass, he looked in his lefthand outside rearview mirror and turned his head to the left, but saw nothing alongside his truck. Collins also testified that he did not expect a vehicle to be alongside because a van had just passed in the opposite direction. According to Collins, he then put on his left turn signal and pulled over to the left in order to pass Aucoin. He estimated that his truck was one and one-half to two feet over the center line when it struck the motorcycle carrying Guillory and Pontiff. Collins claimed that he never saw the motorcycle until the impact occurred. Defendants introduced a number of photographs which support their claim that there was a “blind spot” in which the motorcycle could not be seen. Collins conceded that he could have put his head out of the window and looked back in order to overcome the blind spot, but stated that this would have been a dangerous thing to do because there was traffic on the road in front of him which was slowing down.

Charles Stansbury, the only completely independent witness to the accident, testified that when Pontiff passed him, the motorcycle was on the center line of the highway and that it was still on the center line when Pontiff attempted to pass the Avon-dale truck. However, Stansbury was the only witness to testify that the impact occurred toward the back of the truck, all other witnesses agreed that the cab of the truck struck the motorcycle.

Our examination of the record reveals that the evidence, viewed in a light most favorable to defendants, might allow reasonable men to conclude that Collins was not negligent. It appears that the motorcycle bearing plaintiff was in Collins’ “blind spot”. Because another vehicle had just passed going in the opposite direction, Collins did not think that there could be anything alongside his truck. He testified that he checked his rearview mirror and looked out of his window before pulling over. He further testified that it would have been dangerous for him to put his head out of the window and look back because there were other vehicles in front of him. This testimony certainly could support a conclusion that Clifford Collins acted as a reasonable man under the circumstances.

Furthermore, still viewing the evidence in a light most favorable to the defendants, reasonable men could reach the conclusion that the sole cause of the accident was the negligence of Merlin Pontiff. The only independent witness to the accident, Stansbury, testified that Pontiff attempted to pass on the center line of the roadway. The plaintiff contends that Stansbury’s testimony should be given little weight because he was wrong with respect to the area of the truck where the impact occurred. However, questions of witness credibility should play no part in the evaluation of a motion for directed verdict. Campbell v. Mouton, supra. In considering such a motion, the trial judge must consider all facts and reasonable inferences in the light most favorable to the non-mover.

In light of the evidence before it, the trial court erred in granting the motion for directed verdict. When that evidence is examined in a light most favorable to the defendants, it is clear that reasonable men could have reached a contrary verdict. Therefore, the judgment of the trial court must be reversed and the case remanded for further proceedings consistent with this opinion. All costs of these proceedings are assessed against plaintiff-appellee.

REVERSED AND REMANDED.

      . See, e.g., Oliver v. Jones, 370 So.2d 638 (La. App. 4th Cir. 1979), aff’d per curiam, 376 So.2d 1256 (La.1979); Darbonne v. Allstate Insurance Company, 357 So.2d 1269 (La.App. 3rd Cir. 1978), cert. denied, 359 So.2d 622 (La.1978); Baham v. Patterson, 353 So.2d 366 (La.App. 1st Cir. 1977); Lapeyrouse v. LeCompte, 343 So.2d 1117 (La.App. 1st Cir. 1977), cert. denied, 345 So.2d 1193 (La.1977).