author: CUTRER, Judge. STOKER, Judge,

text:
    John WALLACE, Plaintiff-Appellee, v. PAN AMERICAN FIRE & CASUALTY CO., et al., Defendants-Appellants.
    No. 82-436.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Writs Denied April 5, 1983.
    Stoker, J., concurred and assigned reasons.

      Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for plaintiffs-appellants-appellees.
    Gist, Methvin, Hughes & Munsterman, H.B. Gist, Jr., Alexandria, for plaintiffs-ap-pellees-appellants.
    Bolen & Erwin, Ltd., James A. Bolen, Jr., Alexandria, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This case was consolidated for trial with the suit of McMullen v. Pan American Fire & Casualty Company, Number 82-435 on the docket of this court. These suits are consolidated on appeal and, since the law and relevant facts are common to both, our opinion in this case is equally applicable. However, we render a separate judgment for such consolidated case of McMullen v. Pan American Fire & Casualty Company, 426 So.2d 229 (La.App. 3rd Cir.1982).

These appeals are the third set of appeals arising out of this protracted litigation which arose out of a gas explosion in the Evans High School in Vernon Parish. The original plaintiffs were John Wallace and H.F. McMullen who were severely injured in the explosion. After trial on the merits, judgment was rendered in favor of the plaintiffs and against several defendants. Upon appeal, this court affirmed the trial court judgment with respect to the issues of liability and damages but the cases were remanded to the trial court for a determination of several third party demands which had not been disposed of in the original judgment. Wallace v. Pan American Fire & Casualty Company, 352 So.2d 1048 (La.App. 3rd Cir.1977) and McMullen v. Pan American Fire & Casualty Company, 352 So.2d 1058 (La.App. 3rd Cir.1977), writs ref’d, (both cases), 354 So.2d 209 (La.1978).

The second set of appeals, Wallace v. Pan American Fire & Casualty Company, 386 So.2d 158 (La.App. 3rd Cir.1980) and McMullen v. Pan American Fire & Casualty Company, 386 So.2d 164 (La.App.3rd Cir.1980), were concerned with only a portion of the third party demands for contribution or indemnity among some of the several defendants. This court affirmed the trial court’s dismissal of a portion of such third party demands and again remanded to the trial court for a consideration of the remainder of the third party demands for indemnity.

This third set of appeals concerns the trial court’s dismissal of the remaining third party demands seeking indemnity.

The third party demands at issue on this appeal are as follows:

(1) Jessee Scoggins, d/b/a Star Butane Company (Star Butane) and its insurer, Pan American Fire & Casualty Company, against H.L. Hunt (Hunt) and its insurer, Fidelity & Casualty Company of New York; and
(2) Wanda Petroleum Company (Wanda) and its insurer, Insurance Company of North America against Hunt.

The third party demands by Wanda and Scoggins seek indemnity from Hunt. The trial court rendered judgment dismissing the third party demands. Wanda and Scog-gins appealed. We affirm.

This appeal presents the following issues:

(1) Whether Wanda and Scoggins are entitled to indemnity from Hunt on the ground that Hunt was “actively” negligent while any negligence of Wanda and Scoggins was only “passive;” or,
(2) Whether Wanda and/or Scoggins are entitled to indemnity under the theory of redhibition; or
(3) Whether Wanda would be entitled to indemnity under its contract with Hunt.

ACTIVE/PASSIVE NEGLIGENCE

Wanda (wholesale distributor of the gas) and Scoggins (retail distributor) both contend that since Hunt was the manufacturer of the gas, it had the duty to properly odorize same. They argue that Hunt’s failure to properly odorize the gas in question was “active” negligence while their negligence was only “passive” as they were merely the wholesale and retail distributors respectively. The trial judge, in his opinion on the trial of the case, did not rule on the active/passive issue as he was concerned with the negligence of the defendants toward the plaintiffs.

On the first appeal of the case, however, this court agreed with the trial court’s findings which have the effect of disposing of this active/passive negligence.

In the first appeal of Wallace v. Pan American Fire & Casualty Company, 352 So.2d 1048 (La.App. 3rd Cir.1977), this court stated as follows:

“The trial judge next determined that the LPG supplied to the Evans School was either unodorized or under-odorized determining that under the Louisiana LPG Commission regulations, a duty is imposed upon all manufacturers and distributors of LPG to use proper means to insure that a malodorant is applied to all gas that is destined for public consumption. He further concluded that Hunt, the manufacturer, was negligent in failing to properly odorize the gas sufficient to act as a warning agent; that Wanda, the wholesaler, was negligent in its failure to take appropriate steps to insure that malodorant was added to the gas which it owned and sold to Star Butane; and, that Star Butane, the retail distributor, was negligent in its failure to take affirmative steps to see that malodorant was being added to the gas purchased by it from Wanda at the Clear Creek Plant. The court next found that the failure to add malodorant or a sufficient amount thereof to the gas delivered to the Evans school constituted a cause in fact of plaintiffs’ injuries. Accordingly, these three defendants were found solidarity liable with Hicks for the injuries sustained by both plaintiffs.
“The trial court found that although the manufacturer, wholesaler and distributor of LPG gas are not insurers against damage or injury, they are charged with a duty of exercising a high degree of care. The trial judge concluded that defendants did not under the circumstances of this case exercise the degree of care required. All State Insurance Co. v. Town of Ville Platte, 269 So.2d 298 (La. App. 3rd Cir.1972.)
“We discern no manifest error in the trial court’s determination that the LPG supplied to the Evans school was unodor-ized or, in any event, under-odorized. Although the evidence in this regard is in conflict, we find a reasonable factual basis in the record to support the trial judge’s conclusion....”

The effect of this ruling is that each of these parties, Wanda, Scoggins and Hunt, breached an affirmative duty to guard against and protect others from the inherent dangers ensuing from the public use of unodorized or underodorized gas. This duty of properly odorizing is specifically placed upon all manufacturers and distributors of liquified petroleum gas by the regulations of the Louisiana LPG Commission. Under these circumstances, Wanda, Scoggins and Hunt each breached the affirmative duty of properly odorizing the gas. The negligence of Wanda and Scoggins each emanates solely from their breach of the same duty that was owed by Hunt. For this reason Wanda’s and Scoggins’ claims for indemnity against Hunt on the ground of active/passive negligence is without merit.

REDHIBITION AS A BASIS FOR INDEMNITY

Wanda and Scoggins claim the trial court erred in denying their third party demands in redhibition against Hunt. The appellants cite the second paragraph of LSA-C.C. art. 2531 as the basis of their recovery:

“In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect. (Amended by Acts 1974, No. 673 § 1.)”

To be successful in a redhibition action the appellants must prove a defect, its existence at the time of the purchase, the defect’s non-apparent and unknown character, and the seller’s refusal or inability to correct the defect when given the opportunity. Broussard v. Breaux, 412 So.2d 176 (La.App. 3rd Cir.1972), writ den., 416 So.2d 115 (La.1982); Associates Financial Services Co. v. Ryan, 382 So.2d 215 (La.App. 3rd Cir.1980); LSA-C.C. articles 2520, 2521, 2530, 2531.

An apparent defect is defined in the Civil Code as that which might have been discovered by simple inspection. Wanda and Scoggins would have discovered improper odorization had they performed even a simple inspection, but their duty surpassed that of a simple inspection. They had, not only a duty to inspect, but they had an affirmative duty to discover the improper odorization and to remedy it.

Since Wanda’s and Scoggins’ affirmative duty of odorization is the same as that of Hunt’s, it cannot be said that the lack of proper odorization was a “hidden defect” such as would make redhibition available to Wanda and Scoggins for indemnity from Hunt.

The trial judge correctly resolved this issue when he stated:

“Finally the plea of redhibition (C.C. Article 2545) must be rejected, because that claim presupposes a hidden defect. In this case, repetitious as this may be, it was incumbent under the law and under the regulations of the governing commission for Wanda and Star Butane to discover the inadequacy of the malodorant. They had a corresponding or equal responsibility.”

WANDA’S CLAIM FOR INDEMNITY BY CONTRACT

Wanda contends that Hunt breached its contract with Wanda and that Wanda is entitled to indemnity under the provisions of LSA-C.C. art. 2769. Wanda relies on the following provision of its contract with Hunt for its position:

“Seller warrants that goods sold or services furnished under this purchase order were produced in full and complete compliance with all applicable [laws] and regulations including, among others, the Fair Labor Standard Act as amended.”

Wanda’s position is without merit for the following reasons.

The Legislature specifically created the Louisiana LPG Commission for the purpose of regulating the Liquified Petroleum Gas industry. It is well recognized that this industry handles a product that possesses dangerous propensities which require close regulation for the protection of the public consumers.

The Commission, pursuant to its duties, has adopted detailed regulations which establish the standards which must be followed by all persons who manufacture, handle or distribute this ultrahazardous product.

These regulations include the requirement that all manufacturers and distributors of Liquified Petroleum Gas shall use the proper means to insure that the gas is properly odorized. In this case, Hunt, Wanda and Star Butane each had a separate duty to use the proper means to insure that the gas they handled was properly odorized.

By requiring the manufacturer (Hunt), the wholesaler (Wanda) and the retailer (Star Butane) to perform this vital and important duty, the Commission is, in effect, giving the consumer maximum protection against injury by requiring proper odorization at three different stages of the processing and delivery of the gas. This stringent Commission regulation, of requiring odorization at these three different levels, is an expression of public policy of protection for the consumer of this dangerous product.

It is Wanda’s contention that the provision of the contract quoted herein releases Wanda from any duty to odorize the gas and further creates a basis for damages or indemnity by Hunt in favor of Wanda for a failure to odorize. If we were to agree with Wanda’s contention we would be allowing Wanda to delegate the duty of odor-ization to Hunt by contract thereby reducing by contract the number of effective check points for odorization of the gas as it travels from the manufacturer to the consumer. To so lower the protection of the consumer of this ultrahazardous product would violate the express public policy of this state. To the extent that the contract between Wanda and Hunt attempts to negative such public policy, it is unenforceable, and Wanda is entitled to no damages or indemnity from Hunt. The trial court correctly denied Wanda’s claim for indemnity on this basis.

For these reasons the judgment of the trial court is affirmed. The costs of this appeal are to be paid one-half by Wanda Petroleum Company and one-half by Jesse Scoggins, d/b/a Star Butane Company.

AFFIRMED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the result reached by the majority opinion applicable to this case. Absent substantial distinction, I should think that we should reach the same result here as was reached in Kalmn, Inc., v. Empiregas Corp., 406 So.2d 276 (La.App. 3rd Cir.1981). In the Kalmn case a third party demand was granted under Article 2475 of the Civil Code.

However, the issue in the two cases before us do not appear to have been focused upon in Kalmn.

In support of the third party claims reference is made to the principle that a tort-feasor only technically or constructively at fault may recover from the party primarily responsible for the act that caused the damage. Appalachian Corp. v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539 (1922). It has been held all along in the litigation flowing out of the explosion, incident at Evans High School that Wanda and Scog-gins were not at fault only technically or constructively. They were both guilty of fault in not making certain that the gas in question contained maloderant. This point does not appear to have been considered in Kalmn.

In Green v. Taca International Airlines, 304 So.2d 357 (La.1974) the respective duties of defendants in a high risk industry, that of common carriers, were considered along with the right to recover indemnity. In that case the airline (TACA) made similar arguments as are made by Wanda and Scoggins. The Louisiana Supreme Court held TACA’s fault constituted negligence which was a proximate cause of the accident in which Mrs. Green fell when she tripped on a hole in the concrete of the airport apron, a safety ground installation usually marked with yellow paint as a warning. “Thus, (said the Supreme Court) TACA cannot be said to have been constructively or technically at fault; its fault was active.” TACA’s third party claim against the New Orleans Aviation Board, which operated the airport was denied. I consider that the rule of the TACA case is applicable here. As noted above, this rule does not appear to have been given consideration in Kalmn.

Wanda argues that it should have indemnity under its written contract with Hunt in which Hunt warranted that the gas sold was “produced or furnished in full and complete compliance with all applicable laws and regulations ...’’.

In the TACA case the Louisiana Supreme Court said:

“Agreements have the effect of law between the parties, and the courts are bound to give effect to all such contracts according to the true intent of the parties. That intent is determined by the words of the contract when they are clear and explicit. La.Civil Code art. 1945 (1870). Additionally, a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms. This rule is equally applicable whether the damage is caused by the sole negligence of the indemnitee or the concurrent negligence of the in-demnitee and indemnitor.5 Thus, since the basis of the Aviation Board’s liability to plaintiffs is its own negligence and not the negligence of TACA, no indemnity is due.”

Therefore, unless Wanda’s contract with Hunt expressed an unequivocable intent on the part of Hunt to indemnify Wanda in situations in which Wanda itself was guilty of negligence which was a cause in fact of the damage suffered, I am of the opinion that Wanda’s written warranty would not cover the right of indemnification.

I agree with the trial court and the majority opinion that appellants may not rely on redhibition because the lack of maloder-ant in Hunt’s gas was or must have been readily apparent upon the simplest inspection. Hence, LSA-C.C. art. 2521 bars the third party claims. ■ However, Scoggins urges that it has a redhibition claim under the seller’s rights over against a manufacturer provided in the second paragraph of LSA-C.C. art. 2531. As I understand it, this paragraph of the article was designed to give a right over in favor of sellers who have themselves been held liable in redhibi-tory actions. However, even if the provision is not so restrictive, I am of the position that the apparent nature of the defect of lack of odorization of the gas would bar Scoggins’ redhibition claim.

      . Before trial was completed Scoggins and Pan American settled the claims against them and were released by the plaintiffs. The trial judge found Scoggins negligent along with Wanda and Hunt. Accordingly, the judgment of each plaintiff was reduced by one-fourth.

      . LSA-C.C. art. 2521 provides:
      “Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

      . LSA-C.C. art. 2769 provides:
      “If an undertaker fails to do the work he has contracted to do, or if he does not .execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his noncompliance with his contract.”

      . LSA-R.S. 40:1841-40:1850.

      . LSA-C.C. art. 11 provides:
      “Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.
      “But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.”


source: Caselaw Access Project

license: Public Domain

text:
    H.F. McMULLEN, Plaintiff-Appellee, v. PAN AMERICAN FIRE & CASUALTY CO., et al., Defendants-Appellants.
    No. 82-435.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.
    Writs Denied April 5, 1983.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for plaintiffs-appellants-appellees.

      Gist, Methvin, Hughes & Munsterman, H.B. Gist, Jr., Alexandria, for plaintiffs-ap-pellees-appellants.
    Bolen & Erwin, Ltd., James A. Bolen, Jr., Alexandria, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

For the reasons assigned in Wallace v. Pan American Fire & Casualty Company, 426 So.2d 224 (La.App. 3rd Cir.1982), the judgment of the trial court is affirmed. The costs of this appeal are to be paid one-half by Wanda Petroleum Company and one-half by Jesse Scoggins, d/b/a Star Butane Company.

AFFIRMED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

For the reasons given in my concurring opinion, Wallace v. Pan American Fire & Casualty Co., et al., 426 So.2d 224, (La. App. 3rd Cir.1982), concur the result reached in the majority opinion.


author: ALFORD, Judge.

text:
    Robert D. BOENEKE, et al. v. W.D. TROTTER.
    No. 82 CA 0446.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.
    Rehearing Denied Feb. 17, 1983.
    William Janney, Baton Rouge, for plaintiffs.
    Jerry Finley, Denham Springs, for defendant.
    Before COVINGTON, LANIER and ALFORD, JJ.
   ALFORD, Judge.

Plaintiffs-appellants, Robert Darrel Boe-neke and Marie C. Boeneke, purchased a 1974 Wellcraft V-20 boat from defendant-appellee, W.D. Trotter, for the sum of $4,000.00. After purchasing the boat the Boenekes allegedly discovered a hidden defect, namely, a rotted-out transom.

Petitioners’ amicable demand for reduction of the purchase price was refused and they instituted an action in quanti minoris. Their petition was met with an exception of prematurity based on Civil Code Article 2531 in that the boat had not been tendered for repairs prior to the filing of suit. The trial judge held that the suit was premature because defendant had not been given the opportunity to repair.

This matter is now before this court on plaintiffs’ specification of error that the trial court incorrectly held that their suit was premature. Thus, the only issue presented on this appeal is whether Civil Code Article 2531 mandates that a buyer of an allegedly defective product tender it to the seller for repair prior to instituting an action for a reduction of the sales price. We hold that it does not.

Although Civil Code Article 2544 provides that actions in redhibition and reduction of price are subject to the same rules and limitations, the courts of this state have consistently held that tender for repair is not a prerequisite to an action for reduction of price. Coffin v. Laborde, 393 So.2d 915 (La.App. 4th Cir.1981), writ denied 396 So.2d 1349 (La.1981); Dunn v. Pauratore, 387 So.2d 1227 (La.App. 1st Cir.1980); Rausch v. Hanberry, 377 So.2d 901 (La.App. 4th Cir.1979); Sokol v. Bob McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4th Cir.1975).

Inasmuch as the petition herein was one for reduction of the sale price and not one in redhibition, petitioners did not have to tender the thing to defendant for repairs, remedy or correction of the vices of the thing sold.

The suit for reduction of the sales price was not premature and defendant’s exception should have been denied.

The judgment of the trial court is reversed and the matter remanded to that court for the purpose of trial on the merits. Appellee is cast with the costs of this appeal, with all other costs awaiting final disposition of the matter.

REVERSED AND REMANDED.


author: COVINGTON, Judge.

text:
    James Albert RAGLAND, et ux. v. Howard Preston VIATOR, II, et al.
    No. 82 CA 0284.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.

      Carolyn Pratt Perry, Baton Rouge, for plaintiffs-appellees James Albert Ragland and Loretta Lasseigne Ragland.
    Carey J. Guglielmo, Baton Rouge, for Du-gas Pest Control, defendant-appellee.
    A. Michael Dufilho, A. Shelby Easterly, III, Baton Rouge, for defendants-appellants Howard Preston Viator, II and Marlaine Mundt Viator.
    Dale M. Maas, Baton Rouge, for defendants-appellees Dugas Pest Control and Mut. Fire and Inland Marine.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

James and Loretta Ragland (the Rag-lands), vendees of a home, brought suit against Howard and Marlaine Viator (the Viators), vendors, for quanti minoris and damages on the grounds that the home was structurally defective due to powder post beetle infestation, roof leakage, and other specific defects, and that the Viators knew of these defects but failed to inform the Raglands thereof. Also named as defendants were Dugas Pest Control, Inc. (Dugas), which inspected the home and issued a “termite certificate”, and its insurer, Mutual Fire Marine and Inland Insurance Company (Mutual). The Viators answered the petition and filed a third party demand against Dugas for full indemnity or, in the alternative, for contribution. Both Dugas and Mutual answered the third party demand by the Viators. In that same pleading, Dugas assumed the position of a third party plaintiff against the Viators, but the prayer of that third party demand seeks judgment in favor of Dugas and Mutual against the Viators for full indemnity or, in the alternative, for contribution “of any sum for which DUGAS PEST CONTROL INC. and MUTUAL FIRE & INLAND MARINE may be cast in the main demand, plus reasonable attorney’s fees and all costs of these proceedings.” Dugas and Mutual answered the original petition by a separate pleading. A supplemental and amending third party demand against the Viators was filed in the name of Dugas and Mutual, but in that pleading only Dugas prayed that the amending and supplemental third party petition be filed. The pretrial order indicates that third party demands “have been filed by Dugas Pest Control, Inc. against Howard Preston Viator, II and Marlaine Mundt Via-tor and by Howard Preston Viator, II and Marlaine Mundt Viator against Dugas Pest Control, Inc.”

The trial court rendered judgment in favor of the Raglands and against the Via-tors, Dugas and Mutual, in solido in the sum of $16,161.53 for the powder post beetle damage to the home. The trial court also rendered judgment in favor of the Rag-lands and against the Viators in the sum of $5,480.66, representing damages for the other defects in the home, and ordered the Viators to pay the Raglands a $2,000.00 attorney fee. The Viators, Dugas and Mutual were cast in solido for all costs. The trial court further ordered “that the third party demands of all defendants against each other be and are hereby dismissed;

The Viators took a devolutive appeal from the judgments against them in the trial court. The Raglands answered the appeal taken by the Viators and sought an increase in their awards for damages and for additional attorney fees. After this appeal was lodged, the Raglands, the Via-tors and Mutual entered into a written compromise agreement. The Raglands compromised all of their claims against the Viators for $10,564.22. The Raglands compromised all of their claims against Mutual for $20,-968.97. The Viators agreed to pay any outstanding court costs. The Raglands agreed to, and subsequently did, dismiss their answer to the appeal filed by the Viators. The Viators and Mutual specifically reserved any rights which they “may have against each other or any other party.” In a separate provision, Mutual reserved “any rights it may have against all other defendants with whom they are solidarily cast, including Howard Preston Viator, II and Marlaine Mundt Viator, for indemnification and/or contribution, ...”

Mutual has filed a motion to dismiss the appeal of the Viators alleging that the appeal is now moot because Mutual has paid the full amount of the solidary judgment rendered against itself, Dugas and the Via-tors, that the Viators have not made any payments on that judgment, and that, accordingly, the Viators have no right to indemnification and/or contribution. In connection with their appeal, the Viators asserted six specifications of error. The first five specifications pertained to the judgments against them in favor of the Rag-lands. The compromise agreement between the Raglands and the Viators authorized the cancellation of the judgments in favor of the Raglands as being paid and satisfied in full. The Viators did not reserve the right to continue their appeal with reference to the judgments in favor of the Rag-lands. The Viators have thus acquiesced in those judgments and can no longer maintain the portions of their appeal pertaining to them. La.C.C.P. art. 2085; Williams v. Sentry Ins. Co., 370 So.2d 901 (La.App. 1st Cir.1979), writ denied 372 So.2d 1055 (La.1979); Theriot v. Castle, 343 So.2d 399 (La. App. 3rd Cir.1977). That portion of the appeal of the Viators contesting the validity of the judgments by the Raglands against them is dismissed.

However, acquiescence in part of a judgment does not preclude an appeal as to other parts of such judgment. La.C.C.P. art. 2085. In the compromise agreement, the Viators specifically reserved any rights that they might have against any other party, which obviously included Mutual. The sixth specification of error urged by the Viators complains about the dismissal of their third party demand against Dugas and Mutual. Accordingly, that portion of the judgment has not been acquiesced in and is validly before this court on appeal. Strickland v. Tesoro Drilling Company, 419 So.2d 1281 (La.App. 1st Cir.1982), writ denied 423 So.2d 1162 (La.1982).

The trial judge correctly determined that the obligation by the Viators, Dugas and Mutual in favor of the Raglands was solidary. Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982). How the solidary obligation is divided among the debtors depends upon the nature of the obligation. La.C.C. art. 2103. The right to enforce contribution does not mature until there has been payment of the common obligation (or at least payment of more than the virile share). La.C.C. art. 2104; Thomas v. W & W Clarklift, Inc., 375 So.2d 375 (La.1979); United States Fidelity and Guaranty Company v. Safeco Insurance Company of America, supra. However, procedurally a defendant who is sued on a solidary obligation may file a third party demand against a co-debt- or to recognize his right to future enforcement of contribution, even though that right has not matured. La.C.C. art. 2103; La.C.C.P. art. 1111. The trial court committed error by dismissing the third party demand of the Viators and not recognizing their right to enforce contribution in the future should that right mature.

The joint stipulation of facts filed in this court by counsel for the parties shows that Mutual paid the Raglands $20,968.97 to compromise the judgment against it. The original judgment against the Viators, Du-gas and Mutual was for $16,161.53. By our calculations, $3,277.97 in legal interest accrued on this judgment from the date of judicial demand to the date of settlement. La.C.C. art. 2924. The amount of court costs is not in the record. It thus appears that all, or almost all, of the judgment has been satisfied by Mutual. Any remaining balance is certainly less than the portion owed by the Viators. Thus, the right of the Viators to enforce contribution cannot mature because the common obligation has been paid by another. Accordingly, we dismiss the third party demand of the Viators as unenforceable.

APPEAL DISMISSED.

      . Dugas and Mutual did not appeal the judgments against them in favor of the Raglands or dismissing their third party demand against the Viators, nor did they answer the appeal.

      . Although the compromise agreement did not release Dugas, since Dugas was solidarily bound with Mutual and the Viators, and because the Raglands did not reserve any rights against Dugas, Dugas was also released. United States Fidelity and Guaranty Company v. Safeco Insurance Company of America, 420 So.2d 484 (La.App. 1st Cir.1982).


text:
    Betty ALLEN v. DHHR, RUSTON STATE SCHOOL.
    No. 82 CA 0409.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.

      James R. Dawson, Johnston, Thornton, Dawson, Hunter & Feinberg, Shreveport, for appellant.
    Sidney Hall, Dept, of Health and Human Resources, Legal Div., Baton Rouge, for appellee.
    Robert Boland, Jr., Dept, of Civil Service, Baton Rouge, for Herbert Sumrall, Director, Dept, of State Civil Service.
    Before COVINGTON, LANIER and ALFORD, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the State Civil Service Commission upholding the removal of the appellant, Betty Allen, from her position as Resident Training Specialist I at the Ruston State School, Department of Health and Human Resources. We affirm the judgment.

Prior to July, 1979, Allen was a classified employee of DHHR, Ruston State School. By letter dated November 10,1980, over the signatures of the Interim Facility Administrator and the Training Coordinator, she was given formal notice of termination effective immediately. The reasons for this action were stated as follows:

On Sunday, July 22,1979, on the porch of Cottage 7, at approximately 11:00 AM, while assisting resident Donna Hildebrand, to church services in the school gymnasium, you did pull this resident’s hair. This was witnessed by a co-worker, Minnie Holman. We were also informed by another co-worker Sharolyn Shyne, that this was not an unusual occurrence as she had witnessed your pulling Donna’s hair on previous occasions. Another co-worker, Gladys Roberson, has made a written statement to the effect that on July 22, 1979, you stated to her that you pulled Donna’s hair while returning from church “so hard until you thought you had pulled her scalp out.” Mrs. Roberson’s written statement also indicates that you stated to her that on July 22, 1979, while returning from church services in the gymnasium, you “whipped” Donna. Investigation also revealed that at approximately 11:00 AM, July 22,1979, in the T.V. Room of Cottage 7, you struck Donna with a ruler on the leg. It appeared that you were trying to get Donna to walk. Your actions were witnessed by several residents, namely: Tammy Bex-ley, JoAnn McCarter, Lori Lewis, Mary Alice Nellams, and Delsine Toussant.

Allen timely appealed her dismissal, contending that there was no basis for the charges made against her.

A public hearing was held in this case in Shreveport on November 3,1981, before the Commission. At the hearing there was testimony from the personnel director at Ru-sten State School, who testified to the termination letter. She also testified that there are superintendent’s policies making it a violation to pull a resident’s hair and to strike a resident with a ruler.

Two fellow employees testified to observing Allen pulling the hair of Donna Hildebrand on July 22, 1979. It was stipulated that two residents would testify that they saw Betty Allen pull Donna’s hair and spank her with a ruler on that date. The school nurse corroborated the testimony of these witnesses from her observation of red welts on Donna’s thigh. The nurse received a report at that time regarding the incident in question. She also testified that Donna had many brief seizures that same afternoon.

Betty Allen denied pulling the resident’s hair. She also denied spanking Donna with a ruler. She admitted that she knew that striking a resident or pulling a resident’s hair violated the rules and regulations of the school.

The Commission’s findings of fact were, as follows:

1. Joseph L. Sanders was delegated appointing authority verbally, which delegation was confirmed in writing, and therefore, Joseph L. Sanders, was the proper authority to levy the action in this matter.
2. Donna Hildebrand, a fifteen year old student at Rusten State School, had a history of seizures and had recently been hospitalized for one and a half to two weeks for these seizures.
3. Donna Hildebrand was a resident of Cottage 7 and was in the custody and charge of the appellant, who was the Cottage Parent of Cottage 7.
4. The regulations of the institution prohibit hair pulling of student residents and prohibit child abuse. Appellant admits that she was aware of the prohibition against hair pulling.
5. Appellant had been seen on past occasions pulling the hair of student residents and, specifically, had been seen pulling the hair of Donna Hildebrand on July 22, 1979.
6. On July 22, 1979, Donna Hildebrand had become unconscious and had had between twenty and forty brief seizures and developed a temperature of 103.8°.

The standard of appellate review of findings of fact in Civil Service Commission cases necessarily must be the same as that which exists for cases arising in the trial courts, i.e., the reviewing court is not to disturb the factual findings of the trier of fact in the absence of manifest error. Brook v. Louisiana State University, Baton Rouge Campus, 405 So.2d 1216 (La.App. 1st Cir.1981).

In the instant case the Commission found as a fact that, contrary to the policy and regulations of the institution and in spite of previous warnings, appellant pulled the hair of a resident on July 22,1979. The resident had a history of seizures and recently had been hospitalized for this problem. Later on the day of the incident, she became unconscious and had a high fever and experienced numerous seizures. These facts are supported by sufficient and competent evidence and, as a matter of law, the facts justify the action taken. Stiles v. Department of Public Safety, Drivers’ License Division, 361 So.2d 267 (La.App. 1st Cir.1978).

Abuse of a resident in a state school directly contravenes the purpose of the school and constitutes disruption of the operation of the school, which is sufficient cause for termination. There was legal cause for the termination; the conduct complained of, i.e., hair pulling, is in direct violation of the institution’s policy and previous warning to the employee, impaired the efficiency of the public service and disrupted the orderly operation of the state school at which appellant was employed. Thornton v. DHHR, 394 So.2d 1269 (La. App. 1st Cir.1981). Allen’s conduct on the date in question constitutes abuse of a resident, and in this case is particularly objectionable because of the resident’s history of seizures.

There is no manifest error in the factual findings or conclusions of law of the commission, and we affirm. Sanders v. Department of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir.1980), writ denied 399 So.2d 602 (La. 1981).

We thus hold that the appointing authority sustained its burden of proving that the action taken against Ms. Allen, i.e., termination, was proper and warranted under the circumstances of this case. Shelfo v. LHHRA, Pinecrest State School, 361 So.2d 1268 (La.App. 1st Cir.1978), writ denied 364 So.2d 122 (La.1978).

Appellant further contends that she was denied constitutional due process in that she was not afforded a pretermination hearing. Due process does not insist upon a pretermination hearing. The review procedure provided by La. Const. Art. 10, § 8 (1974) furnishes adequate safeguards to assure that a classified employee will not be unfairly or unduly deprived of the rights bestowed upon her. See Glenn v. Newman, 614 F.2d 467 (5th Cir.1980). The decision in the Glenn case fully answers all constitutional objections raised by the appellant in the instant case. Procedural due process and its relation to the field of administrative law was discussed in Hamilton v. L.H.H.R.A., 341 So.2d 1190 (La.App. 1st Cir. 1976). From the record before us on appeal, we find that Ms. Allen’s right to due process of law has not been violated.

On the question of failure to give the appellant prompt and adequate notice, we find that under the circumstances of this case Ms. Allen was given prompt and adequate notice. Originally the appellant was notified on July 26, 1979 of her termination for the causes related to the July 22, 1979 incident. In the Commission’s opinion of October 22, 1980, Allen was successful in having her removal set aside because the appointing authority had failed to comply with Civil Service Rules in levying the disciplinary action. That appeal was not heard on the merits but was granted in favor of the employee on the ground that the appointing authority was procedurally deficient in its handling of her termination. After the rendition of the October 22, 1980 decision, the appointing authority, for the same cause as stated in the original notice of removal, again notified Ms. Allen on November 10, 1980, only 19 days after the Commission’s decision, that she was being removed from her classified position as Resident Training Specialist I. We do not find the actions of the appointing authority to be unreasonable under the circumstances of the instant case.

Accordingly, and for the above reasons we affirm, at appellant’s costs.

AFFIRMED.

      . Article 10, section 8 of the La. Const, of 1974 provides for written notice of the cause for the disciplinary action and accords the classified employee an appeal to the appropriate administrative body. Such employee is also given a right of judicial appeal from the administrative decision.


text:
    Harold Joe CLARY v. Johnnie Elizabeth Chadwick CLARY.
    No. 82 CA 0427.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.
    James E. Kuhn, Baton Rouge, for plaintiff-appellee.
    Arthur Macy, Hammond, for defendant-appellant.
    Before COVINGTON, LANIER and ALFORD, JJ.
   COVINGTON, Judge.

This matter involves a claim for visitation privileges by maternal grandparents, John and Doris Chadwick, who intervened in the divorce action of Harold Joe Clary against their daughter, Johnnie Elizabeth Chadwick Clary. After custody of the minor children, Cary Chadwick Clary and Amy Beth Clary, had been awarded to the father, the inter-venors moved for visitation privileges pursuant to LSA-R.S. 9:572(A).

The children involved were ages 17 and 11 years at the time of the hearing. They have been in the custody of their father since October 1, 1976, with their mother having the right of visitation for one weekend a month on the second weekend of each month at the home of the maternal grandparents from 6:00 o’clock p.m. Friday until 6:00 o’clock p.m. Sunday. After hearing, the trial judge denied visitation on behalf of the maternal grandparents.

The paramount consideration in determining visitation privileges is the welfare of the children. Woods v. Woods, 386 So.2d 959 (La.App. 3rd Cir.1980). As such, the trial court is vested with a broad discretion in fixing visitation privileges, and its decision will not be disturbed in the absence of an abuse of discretion. Reavill v. Reavill, 370 So.2d 175 (La.App. 3rd Cir.1979).

Finding no abuse of discretion in the trial court’s ruling, we affirm the judgment of the trial court at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 9:572(A) provides:
      If one of the parties to a marriage dies, or the obligation to live together is terminated by an action of separation from bed and board or the marriage is terminated by divorce, and there is a minor child or children of such marriage, the parents of the deceased, or separated or divorced party without custody of such minor child or children, 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 interest of the child or children.

      . Because appellant has not caused the testimony taken at the hearing on the visitation privileges of the grandparents, to be transcribed, we can only assume from the trial court’s judgment that the evidence heard by that court supports its factual conclusion that such visitation privileges would not be in the best interests of the children.


text:
    Margaret Williams PERKINS v. Larry D. PERKINS.
    No. 82 CA 0445.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.
    Hayden Berey, Livingston, for plaintiff in rule.
    Marlene K. Bonds, Baton Rouge, for defendant in rule.
    Before COVINGTON, LANIER and ALFORD, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the district court ordering Larry D. Perkins and Margaret Williams Perkins to deposit the sum of $500, plus all costs of the rule, with the Clerk of Court of Livingston Parish on or before a certain date.

The matter commenced as a suit for separation brought by Margaret Williams Perkins against her husband, Larry D. Perkins, based on cruel treatment, and for recognition of the wife’s interest in the community property. During the course of the proceedings, there was almost constant harassment by the parties against each other, causing unimaginable difficulties which finally forced the trial judge to remark: “This is a very difficult case. The difficulty is not made any — is not lessened in any way because we’re dealing with two intelligent individuals. But y’all have done a terrific job of making this very difficult. You’re in the process, if you stay on the road that you’re on now, of completely ruining yourselves financially.” Both parties have been in contempt of court for deliberately disobeying court orders. The parties were unable to amicably resolve the community property problem, due to a certain extent because each of the parties operated a going business (the wife, a plant nursery; the husband, a cabinet shop), but neither was content to mind his or her own business. In any event, it became necessary to have an inventory of the property made; so the court appointed an attorney practicing in the parish as notary to make an inventory of the community of acquets and gains existing between Mr. and Mrs. Perkins. The inventory was then made by the notary, taking the better part of two days, in the presence of the two appraisers and the two competent witnesses. The notary then made a proces verbal of the inventory, listing each item of property individually and showing movable property amounting to $138,864.27 (the immovable property was handled through arrangements made by the parties). In addition to household furnishings, the major portion of the movable property consisted of the two businesses (a nursery and a cabinet shop). The inventory was not traversed by either Mr. Perkins or Mrs. Perkins.

On January 27, 1982, the notary filed a contradictory rule against both parties to have them pay an additional sum of $500 for the notary’s fee. The rule was heard on February 4, 1982, with the judgment thereon being rendered February 17, 1982, ordering Mr. and Mrs. Perkins to deposit the additional sum of money sought by the notary. This appeal followed. We affirm.

On appeal, the appellants question the manner in which the inventory was made. As stated, the appellants failed to traverse the inventory in the court below. They are not now in a position to attack the inventory on appeal. A motion to traverse the inventory in the trial court is the proper procedural device for raising objection to the inventory or to its approval by the court. See LSA-C.C.P. art. 3135; Succession of Smith, 247 La. 921, 175 So.2d 269 (1965). We have reviewed the inventory in the record and find no irregularities contained therein. The record does not support appellant’s assertions in brief that the appraisers and witnesses were not present during the taking of the inventory. The proces verbal of the notary states that the appraisers and witnesses were present and properly performed their respective duties. Nothing in the record refutes the proces verbal, which, under the law, must be accepted as prima facie proof of all matters shown therein. LSA-C.C.P. art. 3135.

Next, the appellants contend that the court’s approval of the notary’s fee constituted an abuse of discretion. Under LSA-R.S. 9:1423, the trial court is charged with the responsibility of fixing the notary’s fee for taking an inventory and such fee is taxed as costs. It is implicit within the statute that the fixing of the fee is discretionary with the trial judge. See Watson v. Watson, 395 So.2d 361 (La.App. 1st Cir.1981).

We find no error in the trial court’s setting of the notary’s fee at $1600, and requiring both parties to deposit the additional $500 with the clerk of court (together with all costs of the rule), so that the notary can be fully paid for his services. Considering all of the factors involved in the making of this inventory, we do not find any abuse of the trial court’s discretion.

Therefore, for the reasons assigned, the judgment of the trial court is affirmed. The appellants are cast for costs of this appeal.

AFFIRMED.

      . In connection with the inventory, the parties were ordered, by judgment dated June 27, 1981, to pay into the registry of the court the sum of $1,000 ($500 each).

      . At the time of the rule, the notary had been paid the sum of $1100 on his fee, leaving the alleged amount of $500 due (the sums included the appraiser fees).

      .Parenthetically, the inventory consists of about 400 categories of items, some of which contain more than 1,000 individual items; e.g., 2,400 1-gallon gardenia plants.


author: LANIER, Judge.

text:
    Floyd A. ROBICHAUX v. TERREBONNE PARISH SCHOOL BOARD.
    No. 82 CA 0436.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.

      Jerry H. Schwab, Houma, for plaintiff and appellee.
    Joseph A. Reilly, Jr., Houma, for defendant and appellant.
    Before COVINGTON, LANIER and ALFORD, JJ.
   LANIER, Judge.

This is a suit for workmen’s compensation benefits for total and permanent disability, medical payments and statutory penalties. Judgment was rendered in the trial court in favor of the worker awarding him compensation benefits for total and permanent disability at the rate of $134.13 per week, medical bills and expenses of $340.00, and statutory penalties, including a $2,000.00 attorney fee. This suspensive appeal followed.

I. PACTS

On July 25, 1977, Floyd A. Robichaux commenced working for the Terrebonne Parish School Board (School Board) as a building custodian. On July 23,1979, Robi-chaux was assigned to the Elysian Fields School in Terrebonne Parish as the head janitor. As part of his duties, he was required to lift and empty heavy garbage cans into a garbage bin for collection.

On or about January 20, 1980, Robichaux was lifting a garbage can to empty it into the bin and he felt something snap in his back. Thereafter, he felt a burning sensation accompanied by pain. He went into the school kitchen where his wife worked, told her about the incident and rested until the pain eased. Mrs. Robichaux corroborated this testimony at the trial. Robi-chaux indicated that he reported this incident to Robert George, the school principal. George testified that during January of 1980, Robichaux told him that “his back was bothering him and he was thinking of going to see a doctor to get it checked.”

On January 21, 1980, Robichaux went to see Dr. Gary Guidry. Robichaux gave a history of back pain, but did not relate it to any specific injury. Dr. Guidry’s examination revealed paravertebral muscle spasms bilaterally. Robichaux’s ankle jerks were weak. X-rays of Robichaux’s back showed osteophytic formation in the lumbar spine with narrowing of the L-5 disc space. Dr. Guidry determined that Robichaux was temporarily disabled at that time. On February 4 and 18, 1980, and March 3, 1980, Robichaux was again examined by either Dr. Dexter Gary or Dr. Richard Landry. After the March 3rd examination, Robi-chaux’s condition was diagnosed as degenerative disc disease with a possible disc herniation. This condition rendered him disabled from doing janitorial work.

On March 24, 1980, Robichaux went to the School Board office and saw Charles C. Collins, Jr., the Director of Business Affairs. Robichaux advised Collins that he was not returning to work, but did not mention a job related injury. Robichaux discussed retirement with Collins, but Collins indicated that he did not think that Robichaux was eligible. Robichaux submitted some medical bills for payment under the School Board hospitalization policy. No claim for workmen’s compensation benefits was made at this time by Robichaux. The School Board records indicated that Robichaux left work to retire under either Social Security or the School Lunch Employees Retirement System.

On April 16,1980, Dr. Dexter Gary sent a letter to the School Board which stated that: “By history, Mr. Robichaux sustained no specific injury although the type of work he was doing could be the cause of his injury.” Robichaux subsequently consulted with an attorney and on June 19,1980, the attorney sent a demand letter to the School Board for workmen’s compensation benefit and medical payments. This suit was filed on October 13,1980.

II. ACCIDENT

If an employee receives personal injury by accident arising out of and in the course of his employment, his employer is liable for compensation benefit and medical payments. La.R.S. 23:1031. An accident occurs in the course of employment when it happens during the time of employment and at a place contemplated by the employment. An accident arises out of the employment when it results from some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. When the performance of the usual and customary duties of a workman causes or contributes to a physical breakdown, the statutory requirements for an “accidental” injury are present. Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626 (La.1982). A worker’s pre-existing condition does not bar his recovery under the Louisiana Workmen’s Compensation statute. An employer takes the worker as he finds him. An abnormally susceptible worker is entitled to no less protection under the compensation statute than a healthy worker. It is immaterial that the diseased or weakened condition eventually might have produced disability outside the employment situation. Guillory v. United States Fidelity & Guaranty Insurance Company, 420 So.2d 119 (La.1982).

The testimony of Robichaux, corroborated by his wife, shows that he felt a snap in his back while he was lifting a garbage can to dump the garbage in a bin. Immediately thereafter, he felt a burning sensation and pain. This testimony was apparently accepted by the trial judge. These facts show an “accident” as contemplated by the Louisiana Workmen’s Compensation law. In addition, Dr. Dexter Gary testified that the activities of Robichaux in his job of a janitor, and particularly the lifting of heavy garbage cans, aggravated a pre-existing degenerative disc condition in Robichaux’s lumbar spine. Thus, the performance by Robichaux of the usual and customary duties assigned to him contributed to his physical breakdown.

Considering this evidence, we cannot say that the trial judge was clearly wrong in determining that a compensable accident occurred under the facts of this case. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

III. CAUSATION

The chain of causation required by La.R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability. Where there is proof of an accident and of the following disability without any intervening cause, it is presumed that the accident caused the disability. It is not necessary to determine the exact cause of the disability. Guillory v. United States Fidelity & Guaranty Insurance Company, supra.

The testimony and the medical evidence establishes a causal connection between the accident and the resulting disability by a preponderance of the evidence. Robichaux was capable of performing the duties required by his job prior to January 20, 1980. Although Robichaux had some back problems prior to that date, these problems did not keep him from working. The medical evidence shows that bending and lifting will aggravate a degenerative back condition. In the instant case, Robi-chaux’s job activities, including the incident of January 20,1980, caused and/or contributed to his physical breakdown.

Based on this evidence, we cannot say that the trial judge was clearly wrong in determining as a matter of fact that there was a causal relationship between Robi-chaux’s job “accident” and his resulting disability. Arceneaux v. Domingue, supra.

IV. DISABILITY

A workmen’s compensation claimant is totally and permanently disabled if he is unable to engage in any gainful employment. La.R.S. 23:1221(2). Louisiana has also adopted the “odd-lot” doctrine which provides that a claimant is also totally and permanently disabled if he can establish that because of his physical impairment and other factors, such as mental capacity, education, and training, he can perform no services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). A claimant who is able to engage in some employment, though not necessarily the type of employment he was engaged in at the time of the accident, is considered to be only partially disabled. La.R.S. 23:1221(3).

At the time of the “accident”, Robichaux was 58 years of age and had a fifth grade education. He testified that since the “accident”, his back has constantly hurt him and that he can do no work.

Dr. Dexter Gary diagnosed Robi-chaux’s condition as an aggravation of a pre-existing degenerative disc disease causing pain and muscle spasm. This condition precluded Robichaux from doing laborious work requiring lifting and bending. Specifically, Dr. Gary testified that, based on Robichaux’s medical history, clinical evidence and X-rays, he was disabled from performing his janitorial work. Robi-chaux’s condition is progressive and will not improve. Robichaux’s back is a class # 5 on the radiographic scale of classifications, which means it is the worst classification of back. Dr. Gary indicated that Robichaux could only obtain employment if it were given to him as a gratuity.

Considering this evidence, the trial judge was not clearly wrong in determining that Robichaux was totally and permanently disabled. Arceneaux v. Domingue, supra.

V. STATUTORY PENALTIES

Under La.R.S. 23:1201.2, if an employer fails to make workmen’s compensation benefit and medical payments, and this failure is found to have been arbitrary, capricious, or without probable cause, the employer may be compelled to pay a penalty of 12% of the total amount of the claim, together with all reasonable attorney fees incurred by the claimant in the prosecution of the claim. This statute is penal in nature and must be strictly construed. It should be utilized only in those instances in which the facts negate probable cause for nonpayment. Martin v. H.B. Zachry Company, 424 So.2d 1002 (La.1982); Adams v. New Orleans Public Service, Inc., 418 So.2d 485 (La.1982). Where there is a serious defense presented in good faith, the assessment of the statutory penalties is not appropriate. Furtado v. Alton Ochsner Medical Foundation, 413 So.2d 528 (La.App. 4th Cir.1982), writ denied 420 So.2d 171 (La.1982).

The record reflects that the School Board asserted a serious defense in good faith on the issue of whether or not a compensable “accident” occurred. When Robichaux advised the principal of the Elysian Fields School that he was going to see a doctor to get his back checked, he only indicated that his back was bothering him. He did not state the cause of the pain and did not relate the pain to a specific job incident. When Robichaux went to the School Board office to report to the Director of Business Affairs that he was not returning to work, he did not mention a job related injury. Robichaux only made inquiries about his health insurance and his eligibility for retirement. No accident report was filed by Robichaux with the School Board. The letter of April 16, 1980, from Dr. Gary indicated only that the type of work done by Robichaux could cause the injury. When Robichaux first consulted Dr. Guidry, he did not attribute his condition to a job related accident. Considering all of these factors, we believe that the School Board acted in good faith when it litigated this claim, and thus did not act arbitrarily, capriciously or without probable cause. The judgment of the trial court, assessing statutory penalties, is clearly wrong and is reversed. Bates v. International Paper Company, 424 So.2d 1134 (La. App. 1st Cir.1982).

VI. CONCLUSION

For the foregoing reasons, the judgment of the trial court determining that the employee was totally and permanently disabled and awarding weekly compensation benefits and medical payments is correct and is affirmed. The judgment of the trial court assessing statutory penalties is clearly wrong and is reversed. The School Board is cast for all costs of this appeal.

AFFIRMED IN PART AND REVERSED IN PART.


text:
    LIVINGSTON PARISH SCHOOL BOARD v. STATE of Louisiana Through the OFFICE OF EMPLOYMENT SECURITY, et al.
    No. 82 CA 0447.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.
    James D. Caldwell, Jonesboro, for plaintiff.
    Willie D. Maynor, Baton Rouge, Allen B. Pierson, Jr., Ponchatoula, for defendants.
    Before COVINGTON, LANIER and ALFORD, JJ.
   LANIER, Judge.

This is an appeal from an administrative determination by the Office of Employment Security (OES) that an employee was not disqualified for unemployment compensation benefits because of his failure to properly report parttime earnings.

I. FACTS

Prior to June 18, 1978, Harold G. Three-ton was employed full time with the Louisiana Department of Agriculture and was also employed on a parttime basis with the Livingston Parish School Board (School Board). In June of 1978, Threeton was laid off from his position with the Department of Agriculture and was advised to submit a claim for unemployment compensation benefits. Threeton’s claim for unemployment compensation benefits was effective June 18, 1978. When Threeton applied for the benefits, he advised OES of his parttime employment with the School Board. As part of the process for claiming benefits. Threeton was required to attend a Benefit Rights Interview. At the interview, he was given a packet of cards, one of which was to be mailed to OES for each week that benefits were claimed. Threeton was instructed on how to complete and fill out the questions on the cards. Question No. 2 on the cards pertained to whether or not he had worked during the week for which compensation was claimed. During the period from August 13, 1978, through December 30,1978, a period of eighteen weeks, Three-ton failed to fill out the information requested in Question No. 2 of the cards.

In February of 1979, the OES commenced an investigation into Threeton’s entitlement to benefits. Threeton refused to cooperate in the investigation and did not appear for three requested conferences. On September 26,1979, OES made an agency determination that Threeton obtained benefits by fraudulent means in violation of La.R.S. 23:1601(8), disqualified him from receiving benefits for fifty-two weeks from September 30, 1979, to September 28, 1980, and assessed him the sum of $1,980.00 for over-payments. Threeton appealed this agency action to the Appeal Tribunal (Referee) of OES. La.R.S. 23:1629. The Referee conducted a full hearing on December 13,1979. On March 3, 1980, the Referee determined, as a matter of fact, that Threeton had notified OES of both his full time employment and parttime employment when applying for benefits, that Threeton received $1,980.00 “to which he was not entitled” and that the failure of Threeton to report his earnings properly during the period of August 13, 1978, through December 30, 1978, did not constitute fraud under the particular facts and circumstances of this case. The Referee ordered that “the determination of the Agency assessing a disqualification for benefits for a 52 week period beginning September 30,1979 through September 28, 1980 be reversed and removed.” The Referee did not issue an order affirming, modifying or reversing the agency determination which assessed Threeton $1,980.00 for an overpayment.

The School Board appealed the decision of the Referee to the Board of Review for OES. La.R.S. 23:1630. The only issue before the Board of Review was the ruling of the Referee on the disqualification for benefits for the fifty-two week period. On May 23,1980, the Board of Review affirmed the decision of the Referee. The School Board then sought judicial review in the district court. La.R.S. 23:1634. On January 29,1982, the district court affirmed the decision of the Board of Review and cast the School Board for all costs of the district court proceedings. The School Board then appealed to this court asserting that the district court committed error by affirming the decision of the Board of Review and by assessing it with costs.

II. DISQUALIFICATION FROM BENEFITS

La.R.S. 23:1601(8) provides, in pertinent part, as follows:

“(8) For the week, or fraction thereof, with respect to which he makes a false statement or representation knowing it to be false, or knowingly fails to disclose a material fact in obtaining or increasing benefits, whether or not he is successful in obtaining or increasing benefits, or thereby receives any amount as benefits under this Chapter to which he was not entitled, and for the fifty-two weeks which immediately follow the week in which such determination was made all benefits shall be immediately due and on demand paid to the administrator for the fund and such individual shall not be entitled to further benefits until repayment has been made or the claim for repayment has prescribed....”

The record shows that Threeton failed to properly fill out his weekly application for benefits form. In particular, he did not declare his parttime wages earned from the School Board for a period of eighteen weeks. However, the testimony shows and the Referee found as a fact that Threeton declared his parttime employment with the School Board to OES when he applied for benefits in June of 1978. The Referee also determined as a matter of fact that Three-ton reasonably believed that he was legally entitled to benefits during the period in question.

Our jurisdiction in this appeal is confined to questions of law. The findings of the Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, are conclusive. La.R.S. 23:1634; Pinecrest State School v. State, Office of Employment Security, 417 So.2d 79 (La.App. 3rd Cir.1982); Standard Materials, Inc. v. Administrator, Division of Employment Security, Department of Labor, 401 So.2d 400 (La.App. 1st Cir.1981). After reviewing the entirety of the record, we conclude that there is sufficient evidence to support the factual findings of the Referee and the Board of Review that Threeton did not act fraudulently in securing benefits under the particular facts and circumstances of this case. The rulings of the Referee, Board of Review and district court determining that Threeton did not act fraudulently and reversing his disqualification for benefits under La.R.S. 23:1601(8) are affirmed.

III. ASSESSMENT OF OVERPAYMENT

Our review of this record indicates that Threeton appealed the assessment of overpayment against him to the Referee as well as the determination of fraud and disqualification from benefits. Although the Referee determined “that the claimant received $1,980 to which he was not entitled” and that “after review is still determined that the claimant is not entitled to such benefits ... ”, the Referee did not render a specific order concerning the assessment of the overpayment. Threeton is entitled to an adjudication of that issue through the proper procedural channels. Accordingly, we remand this matter to the Referee for a specific ruling and order on the issue of the assessment of the overpayment against Threeton in the sum of $1,980.00.

IV. COSTS

Generally, political subdivisions, such as the School Board, shall not be required to pay court costs “in any judicial proceeding instituted or prosecuted by or against ...” them in any court of this state. Such political subdivisions are only responsible for the “stenographers’ costs for taking testimony.” La.R.S. 13:4521. This case is not one in either tort or contract. La. Const, of 1974, art. XII, § 10(A); Segura v. Louisiana Architects Selection Board, 362 So.2d 498 (La.1978). However, in a suit “against” a political subdivision, a court “may award in favor of the successful party and against...” the political subdivision “such court costs under R.S. 13:4533 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.” La.R.S. 13:5112. The question posed for our resolution is whether or not the proceedings in the trial court and this court constitute a suit “against” the School Board. We perceive this case to be an appeal by the School Board against OES and Threeton and not a suit by Threeton and OES against the School Board. Accordingly, it is our opinion that there is no authority under the law authorizing the assessment of costs against the School Board in this ease.

Costs may not be assessed against OES. La.R.S. 13:5112(0); La.R.S. 23:1548. Costs may not be assessed against Threeton. La. R.S. 23:1692; Ducote v. Louisiana Office of Employment Security, Department of Labor, 401 So.2d 1087 (La.App. 3rd Cir.1981). Thus, it appears that no party to this litigation is legally responsible for the costs and they must be absorbed by the clerk of this court and the clerk and sheriff of the trial court. St. John the Baptist Parish Police Jury v. State, 384 So.2d 553 (La.App. 4th Cir.1980). Accordingly, the judgment of the trial court assessing costs against the School Board is reversed.

V. CONCLUSION

For the foregoing reasons, the judgment of the trial court, Board of Review and Referee setting aside the agency determination disqualifying Threeton from benefit payments for fifty-two weeks is affirmed. This case is remanded to the Referee for a specific ruling and order on the issue of the assessment of the alleged overpayment. The judgment of the trial court is reversed insofar as it casts the School Board for costs.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Failure to declare employment under other facts and circumstances can constitute fraud.


author: LANIER, Judge. LANIER, Judge.

text:
    STATE of Louisiana v. George RUPLE.
    No. 82 KA 0679.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 1983.

      Ossie B. Brown, Dist. Atty. by Glen R. Petersen, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    John R. Dowden, Baton Rouge, for defendant-appellant.
    Before COVINGTON, LANIER and ALFORD, JJ.
   LANIER, Judge.

The defendant, George Ruple, was convicted by a jury of indecent behavior with a juvenile, in violation of La.R.S. 14:81. He was sentenced to serve four years at hard labor in the custody of the Louisiana Department of Corrections, which sentence was suspended and he was placed on supervised probation for a period of five years subject to various conditions (most of which are set forth in La.C.Cr.P. art. 895), including requirements that he be evaluated at the Baton Rouge Mental Health Center and serve twenty-six consecutive Sundays on the East Baton Rouge Sheriff’s litter detail.

SPECIFICATION OF ERROR NO. 1— SUFFICIENCY OF THE EVIDENCE

In State v. Mathews, 375 So.2d 1165 (La.1979), a majority of the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Louisiana Supreme Court has . indicated that this appellate review of the evidence by a state court is required by the due process clause of the Fourteenth Amendment of the United States Constitution. State v. Graham, 422 So.2d 123 (La.1982). When reviewing a conviction based upon circumstantial evidence, it must be determined that, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence has been excluded. La.R.S. 15:438; State v. Ennis, 414 So.2d 661 (La.1982); State v. Austin, 399 So.2d 158 (La.1981).

The crime of indecent behavior with a juvenile is defined in La.R.S. 14:81, as follows:

“Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person. Lack of knowledge of the child’s age shall not be a defense.”

The elements of the offense as charged in this case are: (1) the defendant is a person over the age of seventeen; (2) the juvenile is a person under the age of seventeen; (3) there is an age difference greater than two years between the defendant and the juvenile; (4) the defendant committed a lewd or lascivious act upon the person of the juvenile; and (5) the act committed by the defendant was with the intention of arousing or gratifying the sexual desires of either person.

The record shows that the defendant was born on December 25,1950, and the juvenile was born on May 5, 1965. The incident which resulted in the charge occurred on June 23,1980. At that time, the defendant was over seventeen (age 29), the juvenile was under seventeen (age 15), and there was an age difference greater than two years between the defendant and the juvenile.

The evidence most favorable to the prosecution in the record is the testimony of the juvenile, in pertinent part, as follows:

“A. —and so then I went back into the kitchen and sat down, and so he was a minute coming back in there, and so he had two cans of worms on the table. Some of them — one can was completely dead and another can he must have just bought. I don’t know.
“Q. This — these are live worms?
“A. Yeah.
“Q. Like for fishing bait or what?
“A'. Yeah.
“Q. Okay.
“A. So I commented on how big they were, and he — he compared them. In his own words he said those things — let’s see — he said they were big. Then he said that they weren’t nearly as big as his dick—
“Q. Okay.
“A. —in his own words.
“Q. All right, what happened after that?
“A. Okay, then he said, ‘Speaking of dicks, let’s see how big yours is’. Then he reached over. While he was doing that, he — he asked where it is — in hibernation, and then he asked if I was having a hard on.
“Q. Okay. Did he ever touch you?
“A. Yes.
“Q. Where did he touch you?
“A. Between my legs.
“Q. Okay. What — what did you do at that point?
“A. I got up and left.
“Q. As silly as this sounds, was his touching without your consent?
“A. Yes.
“Q. Did he touch your genitals?
“A. Yes.”

The juvenile’s testimony shows that the defendant touched the juvenile on his genitals (apparently through his clothing) without his consent. This is sufficient evidence to show that the defendant committed a lewd and lascivious act upon the person of the juvenile.

Indecent behavior with a juvenile is a specific intent crime. Specific intent is a state of mind in which “the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” In order to have an indecent behavior, the state must prove that the lewd or lascivious act upon the juvenile was “with the intention of arousing or gratifying the sexual desires of either person.” La.R.S. 14:10 and 11; State v. Duncan, 390 So.2d 859 (La.1980); State v. Johnson, 368 So.2d 719 (La.1979); State v. Fontenot, 256 La. 12, 235 So.2d 75 (1970). Although a specific intent may be proven by direct evidence, such as by statements of the defendant, it need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. La.R.S. 15:445; State v. Boyer, 406 So.2d 143 (La.1981); State v. Williams, 383 So.2d 369 (La.1980). The testimony of the juvenile indicates that the defendant asked him how big his penis was, reached over and touched him on his genitals, and asked if he were having an erection. This evidence shows both directly and circumstantially that the defendant had the specific intent of arousing or gratifying the sexual desires of himself and the juvenile. From this evidence, the jury could validly conclude beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded and that the defendant had the requisite specific intent to commit the offense.

Assignment of error number 1 is without merit.

ASSIGNMENT OF ERROR NO. 2—EX-CESSIVENESS OF SENTENCE

A majority of the Louisiana Supreme Court has held that Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment, and that although a sentence may be within statutory limits, it may violate a defendant’s Constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). A trial judge’s reasons for sentence, as required by Articlé 894.1, are an important aid to an appellate court when called upon to review a sentence complained of as excessive. However, the trial judge is given a wide discretion in the imposition of sentences within' statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Douglas, 389 So.2d 1263 (La.1980); State v. Spencer, 374 So.2d 1195 (La.1979).

The record reflects that the trial court did not adequately consider the 894.1 guidelines in particularizing the sentence of the defendant. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979). However, where a sentence imposed is not “apparently severe” and is in the “lower range” of the sentencing scale, this court will not remand for compliance with Article 894.1. State v. Jones, 412 So.2d 1051 (La.1982); State v. Bowick, 403 So.2d 673 (La.1981); State v. Day, 391 So.2d 1147 (La.1980).

The maximum authorized sentence for indecent behavior with a juvenile is a fine not more than $5,000 or imprisonment with or without hard labor for not more than five years or both. The sentence actually imposed does not assess a fine. The sentence does provide for four years in the custody of the Department of Corrections, but this portion of the sentence is suspended. The probation imposed is for the maximum length of time authorized (La.C.Cr.P. art. 893) and is subject to the standard conditions of probation contained in La.C. Cr.P. art. 895. The two special conditions imposed, requiring evaluation at the Mental Health Clinic and twenty-six consecutive Sundays on the litter detail, are reasonable in view of the nature of the offense and its gravity. Because the sentence to confinement in this case was suspended, it is not apparently severe and the sentence as imposed is not an abuse of the much discretion granted to a trial judge.

Assignment of error number 2 is without merit.

DECREE

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

APPENDIX NO. 1

“In pronouncing this sentence and in accordance with the provisions of Article 894.1 of the Louisiana Code of Criminal Procedure, the court cites that probation is appropriate because the defendant has no history of convictions for criminal activity before the commission of the instant crime, and the court cites the accused’s lack of criminal record as presented to the court by the Division of Probation and Parole. Also the defendant is likely to respond affirmatively to probationary treatment, and the court cites that the accused has a rather extensive formal education including off and on attendance at LSU for a period of five years. The court also notes that the Division of Probation and Parole recommends probation in this case.”

COVINGTON, LANIER and ALFORD, JJ., specially concurring.

LANIER, Judge.

We concur in the result reached in this case but do not adhere to the proposition that this court has jurisdiction to review facts in criminal cases.

On January 13,1973, the third day of the Louisiana Constitutional Convention of 1973, Rule 22B was adopted which required that the Secretary of the Convention “keep a verbatim record and a sound recording of all sessions of the Convention....” Volume I, Records of the Louisiana Constitutional Convention of 1973: Journal of Proceedings, page 26. The debate on Rule 22 may be found in Volume V, Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts at pages 67 to 73. A review of the debates shows that the large majority of delegates felt that a verbatim transcript was necessary for the courts of Louisiana to properly interpret the meaning and intent of the framers of our new Constitution. At page 68 of the debate Delegate Stagg, Chairman of the Rules Committee, observed in pertinent part as follows:

“One of those points of view was that as you know, when questions of Constitutional law and rights are concerned the Courts pay attention to legislative history of the formation of the Constitutional Document.
“There was no counterview to the fact that it was of historical and legal significance to have the proceedings of the convention in a form of a written record and that is now reflected in the language of Subparagraph B.”

On page 69 of the debate, Delegate De-Blieux observed as follows:

“But I can say this, probably if we had a written record, verbatim record of the Convention of the states in the year of 1787, we probably could have saved a lot of expenses as it has taken the Supreme Court to interpret what that Constitution meant. I hope that we won’t have as many court decisions trying to find out what we meant because of the documents we adopted. I think this can be very helpful in that extent.”

Also on page 69 of the debate, Delegate Jenkins observed as follows:

“But the importance is that it would provide hopefully for generations to come with the spirit and feeling of what we’re doing at this Convention. The few words that we’re putting down in the document only tell part of the story. I don’t care how precise you are in writing something; it can be interpreted in many ways. And what is said in the debate on this floor — not in things like rules, but when we get to the substance of this convention — can be all important in future court decisions. It can mean, literally, millions of dollars in the long run in court decisions compared to probably a few thousand spent in this Convention and, more important, not simply from dollars and cents but from the standpoint for the rights and liberties of our people. It could mean all of those things. Now, keeping a transcript is not uncommon. Most Constitutional Conventions do.”

On page 70 of the debate, Delegate Ar-nette observed as follows:

“Now the second thing is, it’s very necessary for the future use in law suit purposes for interpretation of the Constitution. I’m sure everyone understands this is a very important point to consider.”

And at page 71 of the debate, Delegate Duval observed as follows:

“I think that the proceedings of the Convention are of enough historical significance to justify keeping a record. There are other good reasons, particularly dealing with questions before the Supreme Court of Constitutional interpretation.”

In New Orleans Firefighters Association v. Civil Service Commission of the City of New Orleans, 422 So.2d 402 (La.1982), the Louisiana Supreme Court observed that the proceedings of the Louisiana Constitutional Convention of 1973 “... are valuable aids, and should be given some weight, in determining the purpose, intent, and consequent meaning of provisions for those who find them doubtful.” On numerous occasions, the Louisiana Supreme Court has referred to convention records to determine the meaning and intent of constitutional provisions. State, Department of Highways v. Constant, 369 So.2d 699 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979); Succession of Robins, 349 So.2d 276 (La.1977); State v. Bryant, 324 So.2d 389 (La.1975); Hainkel v. Henry, 313 So.2d 577 (La.1975).

Article 5, Section 5(C) of the Louisiana Constitution of 1974 establishes the scope of appellate review of the Louisiana Supreme Court as follows:

“Except as otherwise provided by this constitution, the jurisdiction of the supreme court in civil cases extends to both law and facts. In criminal matters, its appellate jurisdiction extends only to questions of law.”
(Emphasis added).

When the criminal appellate jurisdiction was transferred to the Courts of Appeal in 1980 (effective July 1, 1982), this same constitutional prohibition against review of facts in criminal cases was included in Article 5, Section 10(B) as follows:

“Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts. In criminal cases its appellate jurisdiction extends only to questions of law.” (Emphasis added).

In explaining the constitutional prohibition against appellate review of facts in criminal cases at the Louisiana Constitutional Convention of 1973, the chairman of the Judiciary Committee observed that “[I]n criminal matters however the appellate jurisdiction is restricted to questions of law. This also is the present law in our Constitution and is continued without substance.” Volume VI, Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, page 721 on August 15,1973. Some of the reasons for this rule were explained by Delegate (then Justice) Tate as follows:

“Ms. Zervigon Judge Tate, you were on this committee. Did you all consider extending review of the facts to criminal cases?
“Mr. Tate That is another question. I don’t think we seriously did. I think someone proposed it. I don’t think it carried with a second. But that’s another question. I understand there is another amendment coming up on it.
“Ms. Zervigon Do you have any idea why serious consideration wasn’t given to review the facts on criminal cases?
“Mr. Tate Well, that requires an awful long answer. The reason possibly is, tradition, the fact that we inherited that law from the Anglo-Saxon which traditionally limits review in criminal cases to law. The fact that as a matter of administration of justice, many times people were afraid that, for instance, an appeal on facts in criminal cases might involve, although I don’t think it would, the district attorney being able to appeal the question of acquittal and things like that. I’m not giving you a completely square answer because it’s very complicated the question you asked why there shouldn’t be a review of facts in criminal cases. But for the administration of criminal justice, it’s generally felt that .... that has just not been extended.
“Mr. Perez Judge, isn’t it a fact that one of the reasons that you do not review the facts in criminal cases because a criminal case is always tried before a jury whereas most civil cases are tried before a judge without a jury.
“Mr. Tate That is a very good partial answer. Of course I think in misdemean- or cases, we only review law. But in the vast majority of cases that is true.”

Volume VI, Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, pages 728 and 729 on August 15, 1973.

By an express constitutional mandate, this court has no jurisdiction to review questions of fact in criminal cases. The Louisiana Supreme Court has consistently held in determining criminal appellate jurisdiction that where there is no evidence of an essential element of a crime, a question of law is presented that can be reviewed. Where there is some evidence of an essential element of a crime a question of the sufficiency of the evidence is presented which is an issue of fact over which there is no jurisdiction. State v. Marcal, 388 So.2d 656 (La.1980); State v. Williams, 383 So.2d 369 (La.1980); State v. Hudson, 373 So.2d 1294 (La.1979); State v. Victor, 368 So.2d 711 (La.1979); State v. Rollins, 351 So.2d 470 (La.1977); and State v. Madison, 345 So.2d 485 (La.1977). This jurisprudence was the law governing what was a question of law and a question of fact for determining jurisdiction at the time that the Louisiana Constitution of 1974 was adopted. As indicated by the convention discussion of this concept, this law was continued without substantive change. This jurisprudence has not been expressly overruled. Indeed, to do so would effect a substantial amendment to the Louisiana Constitution without a vote of the people as is required by Article 13 of the Constitution.

In State v. Graham, 422 So.2d 123 (La.1982), (at page 6 of the opinion), the Louisiana Supreme Court held as follows:

“The Due Process Clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded due process, and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).”
(Emphasis added).

The foundation case for this line of jurisprudence is State v. Mathews, 375 So.2d 1165 (La.1979). In Mathews at page 1168 of the Southern Reporter appears the following:

“Thus, in Jackson, the United States Supreme Court held that due process requirements of the federal constitution are offended by a lesser standard of review than that enunciated by it. Although the issue arose in terms of federal habeas review, the Jackson holding also applies, inferentially, to state or federal direct review, where due process would be equally offended by a lesser standard.”

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) came from a State where there is no appeal as of right from a criminal conviction. See Jackson v. Virginia, supra, 99 S.Ct. at page 2785 of the Supreme Court Reporter. Jackson was found guilty by a trial judge and took a writ to the Virginia Supreme Court which was denied. The United States Supreme Court did not comment on the constitutionality of the Virginia criminal appellate review scheme, and, obviously, made no comment about the constitutionality of the Louisiana criminal appellate review scheme. The specific holding of Jackson v. Virginia is found 99 S.Ct. at page 2792 of the Supreme Court Reporter as follows:

“We hold that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

■ We do not agree that Jackson v. Virginia mandates that state appellate courts or Louisiana appellate courts must have jurisdiction to review facts (sufficiency of evidence as opposed to absence of evidence) in criminal cases. Federal appellate due process does not require any appellate review. United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976); Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Rheuark v. Shaw, 628 F.2d 297 (5th Cir.1980); Joensen v. Wainwright, 615 F.2d 1077 (5th Cir.1980); Martin v. Blackburn, 521 F.Supp. 685 (E.D.La.1981); and State v. Fletcher, 341 So.2d 340 (La.1976). As long as the appellate procedures granted by a state are indiscriminately available to all persons convicted, a state may limit appeals on its own terms. State v. Bernos, 260 La. 1108, 258 So.2d 371 (La.1972); 16A C.J.S. Constitutional Law § 594 at pages 688-691. Thus, in State v. Petterway, 403 So.2d 1157, 1161 (La.1981), the court observed:

“Furthermore federal due process does not require a state in criminal cases or otherwise to provide an appellate system. Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973). Due process only requires that such procedural rights, including appeal, as are instituted by law, be indiscriminately afforded each person attempting to exercise same. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

If federal due process does not require a state appellate system, how can federal due process require appellate review of facts? If a state appellate system indiscriminately affords each person using it only an appellate review of law, how is federal due process violated? Is the scope of appellate review in criminal cases provided for in Article 5, Sections 5(C) and 10(B) of the Louisiana Constitution unconstitutional under federal due process because it limits jurisdiction to questions of law? We have not found any federal jurisprudence that specifically addresses or answers these questions.

We believe that the view expressed by Chief Justice Summers in his dissent in Mathews is correct. If it is determined that appellate courts in Louisiana should have jurisdiction to review the sufficiency of evidence (facts) in criminal cases for the proper administration of justice, a constitutional amendment should be submitted to the people to achieve that goal. The meaning and effect of the above constitutional provisions should not be changed jurisprudentially by inference, but only when there is a definitive judgment from the United States Supreme Court declaring that the Louisiana Constitutional scheme for the appellate review of criminal matters fails to meet federal constitutional due process muster. If federal courts wish to review the sufficiency of the evidence (facts) of all criminal convictions in state courts, that is their prerogative.

      . The testimony of the defendant repudiates that of the juvenile and gives a different version of the facts. The jury’s verdict indicates that it accepted the testimony of the juvenile and rejected that of the defendant.

      . See extract of transcript attached as Appendix No. 1.

      . In Bank of New Orleans and Trust Company v. Seavey, 383 So.2d 354 (La.1980), the court observed that when a constitutional provision is plain and unambiguous, its language must be given effect and should be applied according to the most usual signification in which the words are generally understood.

      . The only difference between the two provisions is that Article 5, Section 5, refers to criminal “matters” and has a comma after that word whereas Article 5, Section 10, refers to criminal “cases” and does not have the comma.

      . If reviewing the evidence (facts) to determine if it is sufficient to establish proof of each essential element beyond a reasonable doubt is a question of law, what then would constitute a question of fact?

      . We do agree that Jackson v. Virginia, supra, mandates that when a court, trial or appellate, has jurisdiction to review the sufficiency of evidence (facts) in a criminal case, the standard to be followed is that set forth in that opinion. For example, trial judges in Louisiana have jurisdiction to review the facts of a case when a motion for a new trial is made on the grounds that the verdict is contrary to the evidence (LSA-C.Cr.P. art. 851[1]) or when there is a motion for a judgment of acquittal in a trial before a judge alone. (LSA-C.Cr.P. art. 778). If the trial judge finds that insufficient evidence has been presented to satisfy the Jackson v. Virginia standard, a judgment of acquittal or an order for a new trial, as appropriate, can be entered. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).