author:
CALOGERO, Justice.
     REDMANN, Justice Pro Tern.,

text:
    STATE of Louisiana v. Elsie M. JONES.
    No. 81-K-0341.
    Supreme Court of Louisiana.
    June 22, 1981.

      Gilbert Wayne Aucoin, Ville Platte, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pu-cheu, Dist. Atty., Richard W. Vidrine, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

Elsie Mae Jones was charged by bill of information with four counts of issuing worthless checks, a violation of R.S. 14:71. A judge trial resulted in convictions on three of the four counts. The sentence imposed was a ten day jail term on each of the three counts, the terms to run consecutively, in addition to a fine of $50.00 plus court costs. Execution of sentence was suspended by the court on the condition that defendant make restitution to the complainant within ten days. We review this conviction upon a grant of supervisory writs. 396 So.2d 1347.

The following facts were adduced at trial. In October of 1980, defendant approached Cal Soileau, proprietor of Cal’s Grocery in Ville Platte, seeking to purchase groceries on a credit basis. Defendant lives on Supplemental Security Income and food stamps and is seldom possessed of ready funds with which to purchase goods. Soileau claims that he denied defendant credit, but did agree to supply her groceries in exchange for her check written for the amount of the purchase. It was the parties’ understanding that Soileau would hold the check until the end of the month, at which time defendant would pay the bill from monies she was to receive from her Supplemental Security Income. She was to get her check back from Soileau upon such payment. Soi-leau also told the defendant that he would, in the event of her default, process the cheek through the bank and exercise his right to file criminal charges against her.

Defendant paid her debts to Soileau under this arrangement for the months of October, November, and December of 1980, and for January of 1981. In February of 1981, because of an increase in defendant’s utility bill, she was unable to pay her grocery debts incurred during that month. After sending a ten day demand letter to defendant, which produced an unsatisfactory response, Soileau eventually filed criminal charges.

The issue presented by this case is whether there was sufficient evidence to convince a rational trier of fact that defendant was guilty of “issuing worthless checks” beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The law pertaining to the issuing of worthless checks is contained in R.S. 14:71, which provides in pertinent part:

“A. Issuing worthless checks is the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender had not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation. This provision shall not apply to payments on installment contracts or open accounts.
“B. The offender’s failure to pay a check, draft, or order, issued for value, within ten days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the address shown on the instrument or the last known address for such person shown on the records of the bank upon which such instrument is drawn or within ten days after delivery or personal tender of the written notice to said issuer by the payee or his agent, shall be presumptive evidence of his intent to defraud. * * * ” (Emphasis Provided.)

The defense argues in brief that the arrangement confected between defendant and Soileau should be classified as an open account, making the statute inapplicable to this case. We agree.

Regardless of Soileau’s denial at trial of having extended defendant credit, the facts of this case clearly indicate a credit arrangement. Defense counsel, on cross-examination, elicited testimony from several of the state’s witnesses to the effect that Soileau’s credit customers were handled in much the same way as defendant. These other accounts were kept on separate pages in a ledger book and inscribed as to the date of purchase. At the end of each month, when payment was made, the page of the ledger bearing the account was removed and given to the paying customer as proof of payment. In defendant’s case, the chécks were dated sometimes by the store clerk and sometimes not at all, and were similarly returned to defendant upon payment as proof of such payment. Soileau’s wife admitted that the checks were a method of accounting and recording defendant’s weekly purchases, indicating how much was bought and when the purchase was made.

The record indicates that defendant was free to purchase goods under this arrangement at will. It is also obvious that, notwithstanding Soileau’s classification of the relationship to the contrary, credit was extended and defendant was permitted to purchase on open account at Cal’s Grocery. R.S. 14:71, issuing worthless checks, is by its express terms not applicable to this open accounts transaction.

Defendant’s conduct falls short of that proscribed by R.S. 14:71 for another reason. An essential element of the crime of issuing worthless checks is that defendant at the time of the issuing be possessed of intent to defraud. State v. Smith, 262 La. 39, 262 So.2d 362 (La.1972); State v. McLean, 216 La. 670, 44 So.2d 698 (1950). In the instant case, the state did not prove, so that a rational trier of fact could find beyond a reasonable doubt, that defendant intended to defraud Soileau at the time of the issuance of the checks.

Decree

For the foregoing reasons defendant’s sentence and conviction are reversed and set aside and defendant is ordered released.

REVERSED; DEFENDANT ORDERED RELEASED.

REDMANN, Justice Pro Tern.,

dissenting.

This Court is unconstitutionally constituted and an accused is denied due process of law by his or her case’s being referred to it instead of the Louisiana Supreme Court as constituted by La.Const. Art. 5 §§ 1, 3 and 4, to which this Court should order this case referred.

See the writer’s dissent, State v. Petterway, La.1981, 403 So.2d 1157, 1161.

       Judges William V. Redmann, Thomas J. Klie-bert of the Court of Appeal, Fourth Circuit, and Judge Cecil C. Cutrer of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr., and Harry T. Lem-mon.

      . Defendant was acquitted of one of the counts wherein she was charged not with affixing her signature to the check but rather with simply authorizing another to do so.

      . Defendant has no right of appeal to this Court as a sentence exceeding six months or a fine of more than $500.00 was not imposed. La.Const. art. V, § 5(D) (1974).

      .The check itself was supplied to defendant by Soileau or by his employee. Soileau stated at trial that he never inquired as to whether the defendant had an account at the American Security Bank of Ville Platte, on which the checks were drawn. It is clear that by requiring “credit” customers to draft checks for their purchases, complainant is seeking to afford himself the leverage of threatened criminal prosecution under R.S. 14:71 as a security device by which to enforce collection.

      . Defendant’s testimony at trial indicates that she tendered partial payment for her February debts which Soileau declined to accept.


source: Caselaw Access Project

author:
BLANCHE, Justice.
     REDMANN, Justice Pro Tern.,

license: Public Domain

text:
    STATE of Louisiana v. Stephen V. BLANTON.
    No. 81-K-0394.
    Supreme Court of Louisiana.
    June 22, 1981.

      Roy Y. Ladner, Jr., Jacob Kansas, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, George T. Mustakas, II, Asst. Dist. Attys., for plaintiff-respondent.
   BLANCHE, Justice.

Defendant, Stephen Y. Blanton, was charged with possession with intent to distribute cocaine in violation of R.S. 40:967. Defendant made a motion to suppress all the evidence seized by the narcotics agents. The trial judge suppressed the cocaine discovered in the defendant’s briefcase, but held admissible the cocaine seized from the defendant’s person. Defendant now raises three assignments of error to this pre-trial ruling. The following facts were brought forth at the evidentiary hearing on the defendant’s motion to suppress.

In mid-afternoon on September 17, 1980 the defendant drove to the New Orleans International Airport and picked up Steve and Carmen Basil, who were returning from South America. Narcotics Agent Drum of the Jefferson Parish Sheriff’s Office, who was conducting an investigation of the Basils, noted that this was the first time he had seen the defendant. Agent Drum attempted to follow the three from the airport but lost them in traffic.

Agent Drum then went to the Basil home and set up surveillance there. Approximately lVz hours later, the three drove up to the Basils’ residence. Then, after an hour, the defendant emerged alone and drove off. Agent Drum and his partner followed the defendant until he got to Interstate 10. At that point, they decided to return to the Basils’ home to continue their surveillance and wait for a search warrant.

Agent Drum radioed Agents Hurley and Moore and asked them to be on the lookout for a male driving a white over blue Dodge. It is disputed, and the testimony is conflicting, whether he gave them the license number of the car. Agent Drum said he was interested in the vehicle in connection with a drug investigation. Agents Hurley and Moore spotted a blue and white Dodge and followed it for awhile on Interstate 10. They radioed in to check the license number. When Agent Drum heard this, he told them that was the proper car.

Defendant pulled off the interstate at the Veterans Highway exit and pulled into the Pizza Hut Restaurant where he was employed as Assistant Manager. The two agents pulled up behind him with their flashing lights on and stopped the defendant. The agents told the defendant he was being stopped because he was an armed robbery suspect. At the hearing the agents both admitted this was a blatant lie, with Agent Hurley saying he didn’t believe the defendant should have been told a drug investigation was underway. The agents also testified at the hearing that the real reason they stopped the defendant was because his license plate was improperly illuminated. However, they did not tell him that was the reason he was being stopped, nor did they issue him a traffic citation for that offense.

Once they stopped the defendant, they asked him for identification, and if he had any weapons on him. Defendant stated that a .25 caliber handgun was under the driver's seat, which he turned over to the agents. A records check of the defendant’s identification revealed there was an outstanding attachment out for the defendant for a traffic offense in St. Tammany Parish. Defendant was then arrested and searched. An amber plastic vial IV2 inches long was taken from the defendant’s front trouser pocket. Its contents were field-tested and determined to be cocaine. Defendant was then also charged with possession.

The agents had learned the blue and white Dodge belonged to the defendant’s girlfriend. Supposedly to secure it, they drove it to a less conspicuous portion of the Pizza Hut parking lot, though it was not blocking traffic where the defendant had originally parked it. Agent Hurley had taken the defendant’s briefcase off the front seat and opened it even though defendant told him not to do so. Agent Hurley admitted this at the hearing. The briefcase contained $794 in cash and 13 more small vials of cocaine. Defendant was then additionally charged with possession with intent to distribute cocaine. This evidence was suppressed by the trial judge.

At the hearing the trial judge stated he did not think the agents stopped the defendant for an improperly illuminated license plate. However, he ruled the agents had reasonable grounds to stop the defendant because of the ongoing drug investigation.

Finding merit in the defendant’s contention that the cocaine on his person should also have been suppressed as the product of an unlawful stop and seizure, we need not address the other assignments of error raised by the defendant.

We do not believe Agents Hurley and Moore had the authority to stop the defendant in the first place. Code of Criminal Procedure art. 215.1 provides in pertinent part:

“A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.”

First, we find no error in the trial judge’s statement that he did not think the agents stopped the defendant for an improperly illuminated license plate light. We observe that the agents followed the defendant down Interstate 10 and radioed in for a check of the license number in the late evening; therefore, they must have been able to see the license plate in the dark. Upon stopping the defendant, they did not tell him he was being stopped because of his license plate light, but fabricated the armed robbery suspect story. No traffic citation was issued to the defendant, though the agents admitted they have given citations before. Finally, the defendant never knew there was a problem with the license plate light until the hearing when this excuse for stopping him was made. The car has a valid safety inspection sticker and no one had observed the deficiency before. Considering all of these facts we also do not believe the agents stopped the defendant for an improperly illuminated license plate, and this can not serve as a valid justification for stopping the defendant.

However, we must disagree with the trial judge’s determination that the agents could stop the defendant because of the ongoing drug investigation. We have previously held:

“Reasonable cause for an investigatory stop or detention is something less than probable cause. Nevertheless, it requires the detaining officer to have articulable knowledge of particular facts sufficient reasonably to suspect the detained person of criminal activity.” State v. Ault, 394 So.2d 1192 (La.1981); State v. Edsall, 385 So.2d 207 (La.1980).

These agents did not have reasonable grounds to suspect the defendant of criminal activity.

Agents Hurley and Moore were just informed by Agent Drum to be on the lookout for the defendant’s vehicle as Agent Drum was interested in the vehicle in connection with a drug investigation. They were merely to watch the vehicle and to see what they could learn from such a surveillance.

Even assuming Agents Hurley and Moore could properly identify the defendant’s vehicle on Interstate 10 and had known all Agent Drum knew about the defendant (which they did not), that would still be insufficient for an art. 215.1 stop. All Agent Drum knew about the defendant was that he had met the Basils at the airport and had driven them home; never before was this defendant linked to any aspect of this ongoing drug investigation.

Just because the defendant met some people who were under surveillance for drug violations and drove them home does not give the police the right to stop and search him. We have repeatedly upheld the principle that one is not guilty or subject to an unlawful stop and seizure merely because of his associations. State v. Jones, 308 So.2d 790 (La.1975) wherein defendant left the house suspected to contain marijuana; State v. Saia, 302 So.2d 869 (La.1974) wherein defendant exited a residence known as a drug outlet; State v. Kinnemann, 337 So.2d 441 (La.1976), wherein defendant left a house where marijuana was being sold. In all these cases we suppressed the evidence found on the defendant because the initial stop was not valid. The United States Supreme Court has addressed a similar issue, and in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) said:

“The inference that people who talk to narcotics addicts are engaged in the criminal traffic of narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s security.”

In the above cited cases, the police were not allowed to conduct an investigatory stop when the defendants left known drug outlets or were seen with known drug addicts. In this case, the evidence is far shorter than that, for the defendant was merely seen picking up and leaving the presence of those under surveillance for possible drug violations. There were no “known” drug outlets or addicts involved in this case.

As we said in Kinnemann, supra:

“The actions of this person, a stranger to the police, were more consistent with innocence than with guilt. Unless the after-the-stop discovery of the contraband clouds our judgment, we must find that the reasonable probabilities when Sahu-gue emerged from 1620 Dante Street weighed more heavily on the side of innocence than of guilt.”

Again, in this case, unless the after-the-stop discovery of cocaine clouds our judgment, we must conclude the agents had no reasonable grounds to suspect the defendant of criminal activity and their initial stop and seizure was unlawful.

Finding no reason for the agents to stop the defendant because of deficiencies in the automobile or his conduct, we conclude the agents could not make an art. 215.1 investigatory stop. Therefore, the cocaine seized from his person as a product of this invalid stop was unlawfully seized and should have been suppressed. We reverse the trial court’s refusal to suppress the cocaine seized from the defendant’s person, and the case is remanded for further proceedings not inconsistent with his opinion.

REVERSED AND REMANDED.

REDMANN; J. pro tern., dissents with reasons.

REDMANN, Justice Pro Tern.,

dissenting.

This Court is unconstitutionally constituted and an accused is denied due process of law by his or her case’s being referred to it instead of the Louisiana Supreme Court as constituted by La.Const. Art. 5 §§ 1, 3 and 4, to which this Court should order this case referred.

See the writer’s dissent, State v. Petterway, La.1981, 403 So.2d 1157, 1161.

       Judges William V. Redmann and Thomas J. Kliebert of the Court of Appeal, Fourth Circuit and Judge Cecil C. Cutrer of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Joseph G. MADERE. Joseph G. MADERE v. STATE of Louisiana, et al.
    No. 81-C-0665.
    Supreme Court of Louisiana.
    June 22, 1981.
    Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Howard P. Elliott, Jr., General Counsel, Baton Rouge, Robert E. Winn, of Sessions, Fishman, Ro-senson, Boisfontaine & Nathan, New Orleans, for defendants-appellants.
   DENNIS, Justice.

This is an appeal by the state from a district court judgment declaring uncohsti-tutional La.R.S. 15:31 insofar as it subjects gambling devices to immediate confiscation and destruction even when they are not used for gambling. The judgment is reversed. A gambling device, as defined by La.R.S. 15:31(B), constitutes contraband. Accordingly, a statute requiring its confiscation and immediate destruction does not violate due process or property rights under either the state or federal constitution. Brown v. State, etc., 392 So.2d 415 (La.1980).

REVERSED.

WATSON and LEMMON, JJ., dissent.


text:
    STATE of Louisiana v. David SINGLETON.
    No. 81-K-1026.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re David Singleton, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Madison. No. 31680.

Granted.


text:
    STATE of Louisiana v. Reginald DUNCAN.
    No. 81-K-1028.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Reginald Duncan, applying for writs of certiorari or review. Parish of Orleans. No. 279-914.

Granted. The sentence is vacated as illegal, and the case is remanded for resentenc-ing.


text:
    STATE of Louisiana ex rel. Ken SEAVEY a/k/a Randy Tucker v. Judge Frank MARULLO, Orleans Criminal District Court.
    No. 80-KH-2652.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Ken Seavey, applying for reconsideration of denied writ of December 15, 1980. Parish of Orleans. No. 269-183.

Granted. The trial court is directed to act on petitioner’s new trial motion.


text:
    STATE of Louisiana v. Brenda M. BOUDREAUX.
    No. 81-K-0587.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re State of Louisiana, through the District Attorney, Norval J. Rhodes, applying for reconsideration of writ granted in part on April 6, 1981. Terrebonne Parish. Nos. 100726 and 100727.

Reconsideration denied.


text:
    William C. ROBERTS v. STATE of Louisiana, Through the LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION.
    No. 81-C-0974.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re William C. Roberts, applying for writs of certiorari, or review to the Court of Appeal, Third Circuit. Parish of Rapides. 396 So.2d 566.

Granted.


text:
    John B. MASSENGILL v. AETNA LIFE INSURANCE COMPANY.
    No. 81-C-0991.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re John B. Massengill, applying for writ of certiorari, or review to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 394 So.2d 764.

Granted.


author: MARCUS, J.,

text:
    Clyde C. WEBER v. CRESCENT FORD TRUCK SALES, INC.
    No. 81-C-0809.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Crescent Ford Truck Sales, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 393 So.2d 919.

Denied.

MARCUS, J.,

would grant to consider whether or not attorney fees are due under the facts here presented.


text:
    The BOARD OF COMMISSIONERS OF the ORLEANS LEVEE DISTRICT v. ALL TAXPAYERS, PROPERTY OWNERS, AND CITIZENS OF the ORLEANS LEVEE DISTRICT (Including Particularly the Citizens of the Parish of Orleans and Parish of St. Bernard) and Nonresidents owning Property or Subject to Taxation Therein, and all other Persons Interested in or Affected in any way by the Issuance of Marina Bonds, Series 1980A of the Orleans Levee District.
    No. 81-C-0927.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re The Board of Commissioners of the Orleans Levee District, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 396 So.2d 502.

Denied.


text:
    Lee LEACH v. Bill FREEMAN d/b/a Freeman’s Automotive Service.
    No. 81-C-0964.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Lee Leach applying for writ of certiorari or review to the Court of Appeal, Third Circuit. Parish of Rapides. 395 So.2d 440.

Denied.

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


text:
    John B. MASSENGILL v. AETNA LIFE INSURANCE COMPANY.
    No. 81-C-0970.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Aetna Life Insurance Company, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 394 So.2d 764.

Denied.

DIXON, C. J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Charles B. W. PALMER v. FIREMAN’S FUND INSURANCE COMPANY.
    No. 81-C-0999.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Charles B. W. Palmer, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. 395 So.2d 396.

Writ denied.,.


text:
    James J. DAVIS et al. v. LOUISIANA COMPUTING CORPORATION et al.
    No. 81-C-1014.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Louisiana Computing Corporation, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 394 So.2d 678.

Denied.

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


text:
    Charlotte G. HILL v. Richard N. HILL, Jr.
    No. 81-C-1019.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Richard N. Hill, Jr., applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 394 So.2d 676.

Denied.


text:
    SUCCESSION OF Eugene J. MARCEL, Sr.
    No. 81-C-1020.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Lorine Scott and Gordon Hackman, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 395 So.2d 394.

Denied.


text:
    Diane Lee ARCENEAUX v. Mrs. Jerri BELLOW et al.
    No. 81-C-1030.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Jerri Bellow, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 395 So.2d 414.

Denied. Judgment not final.


text:
    Kenneth L. KNOTTS et ux. v. DEPARTMENT OF HIGHWAYS, State of Louisiana.
    No. 81-C-1031.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re J. W. McDonald applying for writ of certiorari, or review to the Court of Appeal, Third Circuit. Parish of Natchitoches. 395 So.2d 419.

Denied.

MARCUS, J., would grant the writ.


text:
    Ruth Woodard MITCHELL v. D. L. BERTOLLA. D. L. (Denny) BERTOLLA v. Ruth W. MITCHELL et al.
    No. 81-C-1040.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Ruth Woodard Mitchell, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Bienville Parish. 397 So.2d 56.

Writ, denied.


text:
    Talmadge KINNEBREW v. NELSON ELECTRIC COMPANY.
    No. 81-C-1043.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Talmadge Kinnebrew, applying for writs of certiorari, and/or writs of review, to the Court of Appeal, Second Circuit. Parish of Claiborne. 397 So.2d 521.

Denied.


text:
    Kenneth L. KNOTTS et ux. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS et al. (J. W. McDonald).
    No. 81-C-1050.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re State of Louisiana, Department of Transportation and Development, applying for writs of certiorari, or review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 395 So.2d 419.

Denied.

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


text:
    Kenneth L. KNOTTS et ux. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS et al.
    No. 81-C-1063.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Kenneth L. Knotts, applying for writs of certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches.

Denied.

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


text:
    Kenneth L. KNOTTS et ux v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS et al.
    No. 81-C-1078.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Allstate Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches.

Denied.

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


text:
    STATE of Louisiana v. Ray THIBODEAUX.
    No. 81-K-1183.
    Supreme Court of Louisiana.
    May 6, 1981.
   In re Ray Thibodeaux, applying for cer-tiorari, or writ of review. Parish of Orleans. No. 280-571.

Writ denied.


text:
    Kenneth Dale RAINS v. DIAMOND M COMPANY et al.
    No. 81-C-1011.
    Supreme Court of Louisiana.
    May 7, 1981.
   In re Application of Diamond M Company, for stay of execution and enforcement of judgment pending review, to the United States Supreme Court.

Denied.

LEMMON, J., would grant.


text:
    Honorable Charles A. IMBORNONE v. Honorable Thomas A. EARLY, Jr., et al.
    No. 81-CA-0388.
    Supreme Court of Louisiana.
    May 7, 1981.
   In re Charles A. Imbornone, applying for stay order.

Denied.


text:
    Raymond P. SCOTT et al. v. Woodrow W. “Woody” DUMAS, Mayor President, et al.
    No. 81-C-0872.
    Supreme Court of Louisiana.
    May 8, 1981.
   In re Raymond P. Scott, et al., on motion for an order granting stay of mandate. East Baton Rouge Parish.

Stay denied.


text:
    STATE of Louisiana v. Jerry P. LUKE.
    No. 81-K-1189.
    Supreme Court of Louisiana.
    May 8, 1981.
   In re Jerry P. Luke, applying for writ of review and stay order. Parish of Terre-bonne. No. 98765.

Denied.


text:
    STATE of Louisiana v. Leon ROBBINS.
    No. 81-K-1190.
    Supreme Court of Louisiana.
    May 11, 1981.
   In re Leon Robbins, applying for supervisory and remedial writs. Parish of Caddo. No. 117911.

Writ denied.


author: LEMMON, J.,

text:
    Hubert LINCECUM v. ADSERV CORPORATION.
    No. 81-C-1208.
    Supreme Court of Louisiana.
    May 11, 1981.
   In re Adserv Corporation, applying for remedial writs and stay order. East Baton Rouge Parish. No. 236368.

Denied.

LEMMON, J.,

would grant a stay order, subject to appropriate restraints on expenditures and transfers of property.


text:
    STATE of Louisiana v. Ronald BURNETTE.
    No. 81-K-1217.
    Supreme Court of Louisiana.
    May 11, 1981.
   In re Ronald Burnette, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 117734.

Writ denied. The sheriff promptly brought the arrested person before a judge for the purpose of appointment of counsel, and counsel was appointed within 72 hours of the sheriff’s acquisition of custody.


text:
    STATE of Louisiana, In the Interest of Gerald HICKERSON.
    No. 81-CK-1245.
    Supreme Court of Louisiana.
    May 14, 1981.
   In re Gerald Hickerson, through the State of Louisiana applying for writs of certiorari and review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 14529.

Proceedings stayed pending action of this Court in State in interest of Banks No. 81-K-0712. It is ordered that relator be returned from LTI to the E.B.R. juvenile detention facility pending further action of this Court.

MARCUS,,, J., dissents from the order.


text:
    STATE of Louisiana v. Ronnie M. LYLES.
    No. 81-K-1246.
    Supreme Court of Louisiana.
    May 14, 1981.
   In re Ronnie M. Lyles, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 81— 231.

Denied. Adequate remedy by appeal in event of conviction.


text:
    STATE of Louisiana v. Bruce STUCKE.
    No. 81-K-1274.
    Supreme Court of Louisiana.
    May 15, 1981.
   In re Bruce Stucke applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 81-252.

On the showing made, the application is denied.


text:
    STATE of Louisiana ex rel. John D. MORRIS v. Frank C. BLACKBURN, et al., Warden, Louisiana State Penitentiary.
    No. 80-KH-2006.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re John D. Morris, applying for writ of mandamus. Parish of Orleans. No. 197-757.

Denied.


text:
    STATE of Louisiana v. William JOHNSON.
    No. 80-KH-2265.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re William Johnson, applying for writ of mandamus. Parish of Orleans. No. 263-196.

Denied.


text:
    STATE of Louisiana ex rel. William S. JOHNSON v. STATE of Louisiana.
    No. 80-KH-2974.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re William S. Johnson, applying for remedial writs. Parish of Orleans. No. 263-196.

Writ denied.


text:
    STATE of Louisiana ex rel. Tyronne FORREST, St. v. STATE of Louisiana.
    No. 81-KH-0317.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Tyronne Forrest, applying for remedial writs. Orleans Parish.

Denied.


text:
    Robert M. BREITHAUPT, Jr. v. HOUSTON GENERAL INSURANCE COMPANY.
    No. 81-C-0833.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Robert M. Breithaupt, Jr., applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of LaSalle. No. 7215.

Writ denied.


text:
    STATE of Louisiana ex rel. Edward W. BODLEY, Jr. v. STATE of Louisiana.
    No. 81-KH-0835.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Edward W. Bodley, Jr., applying for remedial writs. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Harry James REED v. Warden Roger AUCOIN, East Baton Rouge Parish Prison.
    No. 81-KH-0960.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Harry James Reed, applying for remedial writs. Parish of East Baton Rouge. No. 12-80-1105.

Denied. Hearing set for May 28, 1981.


text:
    STATE ex rel. William BERSCH v. 5TH JUDICIAL DISTRICT COURT, William R. Coenen, Esq., Asst. D. A. Theo J. Coenen III, Esq., Idb, Att. James C. Boies, Idb, Att. State of Louisiana.
    No. 81-KH-1024.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re William Bersch, applying for writ of certiorari, habeas corpus and mandamus. Parish of Richland. No. 14920.

Denied.


text:
    STATE of Louisiana v. Milton MARTIN.
    No. 81-K-1029.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 280-793.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. William R. RICHARD v. LIVINGSTON PARISH SHERIFF’S OFFICE.
    No. 81-KH-1034.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re William R. Richard, applying for writ of habeas corpus. Parish of Livingston. No. 3523-2354.

Denied.


text:
    STATE of Louisiana v. Milton OSBORNE, Jr.
    No. 81-K-1051.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Milton Osborne, Jr., applying for writs of certiorari, review, prohibition and mandamus. Parish of Iberville. No. 3688-80.

Denied.


text:
    STATE of Louisiana In the Interest of Troy WRIGHT.
    No. 81-CK-1054.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Troy Wright, applying for writs of certiorari, prohibition and mandamus, Juvenile Court. Orleans Parish. No. 190-983.

Denied.


text:
    STATE of Louisiana ex rel. Jimmie MORCEAUX v. STATE of Louisiana and Parish of Calcasieu.
    No. 81-KH-1056.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Jimmie Morceaux, applying for remedial writ. Parish of Calcasieu. No. 13757-76.

Denied.


text:
    STATE of Louisiana ex rel. Johnny R. COLLINS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1074.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Johnny R. Collins, applying for remedial writs. Parish of Bossier. No. 54685.

Denied.


text:
    Daniel L. GIBBS, dba Dan Gibbs Dozer Contractor v. BERNARD McMENAMY CONTRACTOR, INC.
    No. 81-C-1079.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Daniel L. Gibbs, applying for writs of certiorari, or review, to the Court of Appeal, Second Circuit. Parish of Ouachi-ta. No. 14421.

Writ denied.

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


text:
    STATE of Louisiana v. Edward Michael LYNCH.
    No. 81-K-1084.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Edward Michael Lynch, applying for remedial writs. Parish of Caddo. Nos. 114814, 114-814A and 116370.

Denied. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana ex rel. Melvin BOWMAN v. STATE of Louisiana.
    No. 81-KH-1111.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Melvin Bowman, applying for writ of habeas corpus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Vincent C. ALLNET, Sr. v. STATE of Louisiana.
    No. 81-KH-1112.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Vincent C. Allnet, Sr., applying for writ of habeas corpus. Parish of St. Tammany. No. 80683/4.

Denied.


text:
    STATE of Louisiana ex rel. Douglas Wayne JOHNSON v. STATE of Louisiana.
    No. 81-KH-1113.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Douglas Wayne Johnson, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 10-77-541.

Denied.


text:
    STATE of Louisiana v. Roland LUSK and Annie Jackson.
    No. 81-K-1129.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Roland Lusk and Annie Jackson, applying for writs of certiorari, review, prohibition and mandamus, from the Criminal District Court. Parish of Orleans. No. 280-308.

Denied.


text:
    STATE of Louisiana ex rel. Roy SAWYER v. Frank BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 81-KH-1132.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Roy Sawyer, applying for remedial writs. Parish of Orleans. No. 257-047.

Denied.


text:
    Edward HALL, Jr., STATE ex rel. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1133.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Edward Hall, Jr., applying for a writ of habeas corpus, mandamus, certiora-ri, prohibition or other remedial writ and memorandum of authorities, from the Criminal District Court. Parish of Orleans. No. 202-640.

Denied.


text:
    STATE of Louisiana ex rel. Howard Lee GOODS v. STATE of Louisiana.
    No. 81-KH-I135.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Howard Lee Goods, applying for remedial writs. Parish of Catahoula. No. 80-168.

Denied.


text:
    STATE of Louisiana ex rel. Theodore L. HUNSUCKER v. STATE of Louisiana and Charles C. Foti, Jr.
    No. 81-KH-1154.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Theodore L. Hunsucker, applying for writ of habeas corpus. Parish of Orleans.

Writ denied. We have been informed that petitioner has been released.


text:
    STATE of Louisiana ex rel. Ken SEAVEY (alias Randy Tucker) v. Edwin LOMBARD, Esq., Clerk of Court.
    No. 81-KH-1155.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Ken Seavey (alias Randy Tucker), applying for writs of habeas corpus. Parish of Orleans. Nos. 268-919 and 269-183.

Writ denied.


text:
    STATE of Louisiana ex rel. Melvin TRIBBIT v. STATE of Louisiana.
    No. 81-KH-1156.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Melvin Tribbit, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 76-2282.

Denied.


text:
    STATE of Louisiana ex rel. Joseph MALATESTA v. COURT REPORTER, SECT. “B” ORLEANS PARISH CRIMINAL COURT.
    No. 81-KH-1158.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Joseph Malatesta, applying for writ of mandamus. Parish of Orleans. No. 273-727.

Denied.


text:
    STATE of Louisiana ex rel. Evans BROWN v. STATE of Louisiana.
    No. 81-KH-1161.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Evans Brown, applying for writs of certiorari and review. Parish of Orleans. No. 253-368.

Writ denied.


text:
    STATE of Louisiana ex rel. Willie VALENTINE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1168.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Willie Valentine, applying for remedial writs. Parish of Orleans. No. 213 — 432.

Denied.


text:
    STATE of Louisiana v. Elmo JAMES.
    No. 81-K-1211.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Elmo James, applying for supervisory writs and stay order. Parish of Orleans. No. 281-691, Magistrate Section.

Denied.


text:
    STATE of Louisiana v. Joseph K. FRANCE.
    No. 81-K-1251.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Joseph K. France, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 80-1874.

Denied.


text:
    STATE of Louisiana v. Lewis VICTOR.
    No. 81-K-0023.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Lewis Victor, applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. 114948.

Granted. Out of time appeal ordered.


text:
    STATE of Louisiana ex rel. Monroe SMITH, Jr. v. STATE of Louisiana.
    No. 81-KH-0518.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Monroe Smith, Jr. applying for writ of prohibition and motion to dismiss. Parish of Union. No. 25638.

Granted. It is ordered that petitioner’s case be set for trial during the next jury term.


text:
    STATE of Louisiana ex rel. Ervin Ray DENNY v. Richard P. BOYD, Jr., Judge et al., 7th Judicial District Court, Parish of Concordia.
    No. 81-KH-0693.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Ervin Ray Denny, applying for writ of mandamus. Parish of Concordia. No. 72-2055.

Granted. Relator’s application transferred to district court for action.


text:
    CITY OF DENHAM SPRINGS v. Patrick A. KRAUSE.
    No. 81-K-0877.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Patrick A. Krause, applying for writ of certiorari. Parish of Livingston. No. 36046.

Granted.


text:
    STATE of Louisiana v. Jack TATE.
    No. 81-K-0878.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re State of Louisiana, applying for remedial writ. Parish of East Baton Rouge. Nos. 3-80-40 and 9-80-105.

Writ granted.


text:
    STATE of Louisiana v. Jack TATE.
    No. 81-K-0908.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re Jack Tate, applying for writ of certiorari. Parish of East Baton Rouge.

Writ granted.


text:
    NEW ORLEANS AUTO TITLE CO., INC. v. STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY.
    No. 81-C-1052.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re New Orleans Auto Title Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 12,393, Parish of Orleans.

Granted. In view of the payment by relator after the action of the court of appeal, relator’s suit is reinstated as to all matters except the temporary restraining order. The matter is remanded to the trial court for a hearing on the remaining issues.


text:
    STATE of Louisiana v. Chester GREEN.
    No. 81-K-1087.
    Supreme Court of Louisiana.
    May 18, 1981.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 280-510.

Writ granted.


text:
    STATE of Louisiana v. Ronald BURNETTE.
    No. 81-K-1217.
    Supreme Court of Louisiana.
    May 22, 1981.
   In re Ronald Burnette, applying for reconsideration of denied writ of May 11, 1981. Parish of Caddo. No. 117734.

Reconsideration denied.

DIXON, C. J., concurs in the denial. There is no showing of abuse in this case.

LEMMON, J., concurs.


author: KLIEBERT, Judge. SAMUEL, Judge,

text:
    Johnny Earl PARKER v. TRAVELERS INSURANCE COMPANY et al.
    No. 11760.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.

      Klein & Rouse, a Professional Law Corp., Henry L. Klein, New Orleans, for plaintiff-appellee.
    Bienvenu, Foster, Ryan & O’Bannon, Hugh M. Glenn, Jr., New Orleans, for inter-venor-appellee.
    John J. Weigel and Madeleine Fischer, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, New Orleans, for defendants-appellants.
    Before SAMUEL, KLIEBERT and BAILES, JJ.
   KLIEBERT, Judge.

Plaintiff, Johnny Earl Parker (hereinafter Parker), was an operator at the Ten-neco Oil Company Refinery (hereinafter Tenneco). He was injured while working at the refinery on March 24, 1976. Parker sued Tenneco, Travelers Insurance Company (hereafter Travelers — Tenneco’s insurer), Charles Kilgore (hereafter Kilgore — the refinery’s general manager), Charles Lambert (hereafter Lambert — the refinery’s head of operations), Ray Brooks (hereafter Brooks — supervisor of safety & security), Rawlin DeLaughter (hereafter DeLaughter — safety engineer), A1 Thomas (hereafter Thomas — acting foreman), and Linn Perri-era (hereafter Perriera — foreman). Travelers also intervened as Tenneco’s workmen’s compensation carrier for the amounts paid to plaintiff under the workmen’s compensation policy.

After a jury trial on the merits, judgment was rendered in the amount of $517,-531.68 against Travelers, Kilgore, Brooks and Perriera, in solido. Additionally, there was judgment in favor of Travelers and against the plaintiff (Parker) for $29,429.08 as reimbursement for the workmen’s compensation benefits paid by Travelers up to the time judgment was rendered. The suit was dismissed as to Lambert, DeLaughter and Thomas.

The facts leading up to the suit are as follows: On March 24, 1976, Parker, a 31 year old operator, was working the seven A.M. to three P.M. shift at Tenneco’s oil refinery in Chalmette. At approximately 7:30 A.M., pursuant to his job requirement, he went to check the gauges on the Fluid Catalytic Converter Unit (F.C.C. Unit). The gauges were mounted several feet above his eye level. In order to read the gauges, Parker walked up a “shop made” three tier steel step, read the gauges, then turned around on the top step and started walking down the steps. As he stepped off the last step onto the floor, his feet went out from under him. He landed on the steel steps, causing serious injury to his back. In November 1976, following conservative treatment, Parker was operated on for a ruptured disc. Subsequently, in October 1977, he had a total laminectomy and a fusion. According to Parker, he fell because of oil on the cement floor. The oil was leaking from the base of the “booster blower”. Parker predicated his claim for damages (as opposed to workmen’s compensation benefits) on the contention the defendants failed in their duty to provide him with a safe place to work.

Appellants list four specifications of error by the jury: (a) the finding of liability on the part of Kilgore and Brooks was manifestly erroneous, (b) the trial court’s charges on proximate cause was erroneous and hence, caused an erroneous verdict, (c) the jury failed to find the plaintiff had assumed the risk and/or was contributorily negligent, and (d) the award was excessive.

I.

Appellants contend the jury’s findings of liability as to executive officers, Kilgore and Brooks, was manifestly erroneous since the evidence clearly showed neither of these defendants had breached a personal duty to plaintiff or had actual or constructive knowledge of the alleged safety defect.

Kilgore, as general manager of the Ten-neco Oil Refinery in Chalmette, had responsibilities which were delegated to four major departments: Operations, technical, administration and maintenance. Under the “operations” department, the delegation of responsibility was as follows: Kilgore (refinery general manager), then Charles Lambert (head of operations), then Clark Johnson (superintendent of operations), then the operating foreman, A1 Thomas. Kilgore admitted he and all levels of management had the responsibility of providing a safe place to work, but contended he did not have the direct responsibility for operation of the F.C.C. Unit. Kilgore further denied any knowledge of a leak on the booster blower and testified that he relied primarily on the operating foreman for knowledge of day-to-day conditions at the unit.

Brooks, as supervisor of safety and security at Tenneco, was in charge of safety, fire protection and security. He denied having any responsibility for or in connection with operation or maintenance of the booster blower unit. Brooks conducted safety meetings and inspected the refinery for compliance with company rules and OSHA rules and made recommendations for improvements. Moreover, he had the authority to write a work order should he find violations. Annual mock OSHA inspections of the entire plant were conducted by Brooks. He had personally participated in the F.C.C. Unit inspections in early 1975 and early 1976 (the time period during which the leaking booster blower was left unremedied). It was admitted by Brooks that oil in the area where Parker was injured was a common, recurring problem.

Claude Rome, chairman of the union’s health and safety committee, was on the joint (labor and management) health and safety committee along with the defendants, Brooks, Lambert and DeLaughter. Rome testified that he had apprised these defendants of the oil leak problems in the general area as early as March 1975 and as recent as two weeks prior to the accident in March 1976. Rome characterized the booster blower leaks as a common problem of continuous leaking.

According to Lambert, operations manager, Linn Perriera, as the operating foreman of the unit, was directly responsible for the operation and maintenance of the F.C.C. Unit.

Canter v. Koehring, 283 So.2d 716 (La. 1973) enunciated the criteria for imposing individual liability on executive officers.

Unquestionably, Tenneco, as Parker’s employer, had a duty to provide him with a safe place to work. This duty was delegated by Tenneco to Charles Kilgore who in turn delegated his duty to responsible subordinates, namely, Charles Lambert, Clark Johnson, Linn Perriera and Ray Brooks.

Since Kilgore properly and prudently delegated these responsibilities to subordinates who were not shown to be incompetent, he should not have been found personally at fault in creating the dangerous condition. Further, there is no evidence he had personal or constructive knowledge of the condition which led to Parker’s injuries. Hence, under the criteria set out in Canter v. Koehring, supra; Payton v. Travelers Ins. Co., 373 So.2d 1324 (La.App.1979), the jury’s finding of liability on Kilgore was manifestly erroneous. Accordingly, we hold that the jury’s conclusion of negligence as to Kilgore was “clearly wrong” and hence, is reversed as to this defendant.

Although Perriera was on vacation at the time of Parker’s fall, he was the regular operating foreman charged with the duty of providing maintenance of the booster blower unit. From the evidence presented, the jury could and apparently did conclude negligence on his part due to his failure to remove the cause of the oil leak.

Clearly, under the criteria of Canter, supra, Ray Brooks and Linn Perriera breached their delegated duty to provide a safe place for Parker to work. Therefore, we hold the jury’s finding of liability on the part of the defendants, Ray Brooks and Linn Perriera to be correct.

II.

Defendants-appellants contend the trial court’s charge on proximate cause was an incorrect statement of the law and resulted, in a verdict contrary to the evidence.

The charge made by the trial court was as follows:

“As to the requirement that plaintiff’s injury be caused by defendant’s conduct, I do not mean that the law recognizes only one cause of any injury, consisting of only one factor or thing, or the conduct of only one person. On the contrary, many factors or things may operate at the same time, either independently or together, to cause injury or damage. You should resolve this question by deciding whether plaintiff would probably not have suffered the claimed injuries in the absence of defendant’s conduct. If plaintiff probably would have suffered those injuries regardless of what the defendant did, then you must conclude that the injuries were not caused by the defendant, and render a verdict for that defendant. If, on the other hand, plaintiff probably would not have suffered the claimed injuries in the absence of defendant’s conduct, then you must conclude that defendant’s conduct did play a part in plaintiff’s injury and you must proceed to the next element.”

Counsel for defendant argues the charge was erroneous because it omitted the “substantial factor” test first enunciated in Dixie Drive-It-Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

The instruction given does, in essence, state the principle that where the defendant’s conduct is not a cause in fact of the accident (i. e., where the conduct is not a substantial factor in causing plaintiff’s harm), then he cannot be held liable. By instructing that “if . .. plaintiff probably would not have suffered the claimed injuries in the absence of defendant’s conduct ...” the court below, in our view, sufficiently covered the “substantial factor” test, and as such did not misstate the law. This is particularly so when the portion of the charge quoted is viewed in the light of the general charges. For example, the general charge contained the following statements:

“You should consider what I say about the law as a whole. You should not single out any one sentence, or individual point or idea, and ignore the others.”

Accordingly, we conclude that the charge made by the trial judge was not a misstatement of the law, nor is it a cause for reversing the jury’s verdict.

III.

Appellant contends the failure of the jury to find that Parker had assumed the risk and/or was contributorily negligent was manifestly erroneous. In essence, the contention is grounded in the view that since plaintiff was aware of the presence of the oil on the cement floor, he must be presumed to have consented to take the risk associated with the dangerous condition or to have been contributorily negligent in walking through the oil.

Parker testified that it was his job to check the pressure gauges on the F.C.C. Unit every two hours. In his view, the only way to read the gauges was to go up the ladder — as he did when he was injured. According to Parker, the leak from the base of the booster blower was “a pretty severe leak” which he could not have fixed himself. Parker contended there was always an accumulation of oil beneath the booster blower. At previous times, he had tried to clean up the oil with rags, but the safety department had said to stop doing this because it was a fire hazard. At the time of the accident, Parker was wearing safety shoes he had purchased through Tenneco. In essence, Parker’s testimony was to the effect that the oil leak was a known hazardous situation which his employer was requested to remedy but failed to do so.

Under cross-examination, Parker admitted he had seen the oil prior to stepping in it, and there was no emergency or hurry to get it cleaned at the time. Generally the night shift would clean the oil at the end of its shift and the day shift would let it accumulate. On re-direct, Parker stated it would take approximately thirty minutes to clean the accumulated oil, but his duties would not permit him to do that every time he checked the gauges. Parker further stated that he was never supplied with any type of chemicals or other cleansing agents to clean the oil which had accumulated from the leak.

Thomas Fitzgerald, operator at Tenneco, had worked on the shift prior to plaintiff’s shift and had cleaned the oil prior to Parker’s arrival at work. Fitzgerald stated that oil leaks had existed on the booster blower for one year prior to Parker’s injury and that an operator could not climb the ladder and check the gauges without walking through oil slicks.

Albert Thomas, Linn Perriera and Charles Lambert, defendants, all testified that “housekeeping” (cleaning up oil) is required of all employees. Both Thomas and Perriera denied ever ordering any employee to walk through oil.

For an employee to be held contribu-torily negligent and/or to have assumed the risk of harm which results in injury, defendant must prove, by a preponderance of the evidence, that plaintiff voluntarily and knowingly exposed himself to the danger which resulted in his injury. It must be found that (1) a known and obvious danger existed and (2) a readily available reasonable alternative was available. Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3rd Cir. 1978); and cases cited therein.

It has been established by a preponderance of the evidence that a known and obvious danger (i. e., the oil puddle) existed. However, it has not been proven by a preponderance of the evidence that a readily available reasonable alternative was available which would have allowed Parker to pursue another course of action.

The law does not require the worker to be placed in a position of working in danger and then be blamed for his injuries. Payton v. Travelers, supra; Canter v. Koehring, supra; O’Keefe v. Warner, 288 So.2d 911 (La.App. 1st Cir. 1974); Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir. 1970).

Apparently the jury believed the appellant’s claim of assumption of the risk by Parker lacked merit. We concur.

We now turn to the defense of contributory negligence. For it to apply, it must be established that the dangerous condition was of an obvious character which displayed to all concerned to use a high degree of care and caution in negotiating the area where the substance was present. Marino v. Clark, 349 So.2d 429 (La.App. 4th Cir. 1977), writs refused 351 So.2d 177.

He who claims contributory negligence must prove by a preponderance of the evidence that the injured party failed to act as a reasonable and prudent man and that his negligence was a contributing cause of the accident. Watson v. Illinois Central Gulf Railroad, 355 So.2d 1366 (La. App. 1st Cir. 1978).

While defendants have shown knowledge of the oil leak on plaintiff’s part, they have not shown that plaintiff failed in his duty of exercising ordinary care for his own safety. Parker was wearing safety shoes at the time of the accident and was using stairs required to be used in the course of his occupation. The stairs did not meet OSHA safety regulations (as testified to by a safety professional) since they had no hand-rail. Parker had attempted to clean the leak previously, to no avail.

In our view, the jury had ample basis to conclude Parker was not contributorily negligent. Hence, we cannot say it was manifestly erroneous in its decision.

IV.

Appellants contend the jury’s award of $500,000.00 in damages was grossly excessive and constituted an abuse of the jury’s discretion.

Dr. Robert E. Ruel, Jr., an orthopedic surgeon, treated Parker. Initially, Dr. Ruel diagnosed plaintiff’s injuries as a back sprain. A myelogram and discogram were subsequently conducted and a laminectomy was performed on the L-5, S-l disc on November 8, 1976. In February 1977, Parker returned to light duty but was re-admitted to the hospital in October 1977 because he was not responding to conservative treatment and he was complaining of leg and back pains. A total laminectomy at the L-4, L-5 and L-5, S-l levels was completed and a fusion was performed. Parker then wore a back brace'for six months. Dr. Ruel believed Parker should not have a job which requires frequent climbing, bending, stooping or lifting of weights over twenty-five pounds. In addition, Dr. Ruel referred Parker to a psychiatrist because of Parker’s need for pain medication.

Dr. Richard Levy, a neurologist, examined Parker after both operations. After the first operation, Dr. Levy ascribed a 5 to 10% partial permanent disability to the body as a whole and an undetermined additional disability after the second operation. It was Dr. Levy’s opinion that Parker could do moderate secondary work in which he could lift thirty to forty pound weights.

Dr. William Super was Parker’s treating psychiatrist. Super related Parker’s depression over his loss of mobility, his inadequacy in dealings with his wife and small children, and his trouble coping with the permanent nature of his injury. Dr. Super prescribed anti-depressant drugs and tranquilizers for Parker, and diagnosed him as “depressive-neurotic, post traumatic.” In Dr. Super’s opinion, Parker’s mental condition was a direct result of his accident. However, he also related his belief that plaintiff is a good candidate for rehabilitation because he does not want to concede defeat.

Susan Smith, a vocational rehabilitation and occupational therapist, testified that Parker is limited in his functional capacity, primarily because of his inability to perform activity with any spontaneity or agility. It was her opinion that Parker, even though highly motivated, will have a long struggle to obtain a job which he could maintain, with said job having to be a “highly selective job” which would not put a strain on his back. It was Smith’s further opinion that Parker had plateaued insofar as developing functional, physical skills were concerned.

Dr. Seymour Goodman, an economist, testified that Parker’s past lost earning income was $37,443.20 (this was net wages less industrial pay, including overtime, but not deducting workmen’s compensation) and future lost earning income was $674,630.17 (computed using a 6%% discount rate and a 28.4 year life expectancy and after deducting the industrial pay to which Parker was entitled). The future loss of earnings income was also computed with the view Parker would find a job paying minimum wages and hold it for the remainder of his life expectancy. On cross-examination, Dr. Goodman testified the past lost earnings income would be $34,618.67 if overtime earnings in the year 1976 was deleted. In addition, he testified future loss earning income would be reduced to $429,505.53 if a 63/4% discount figure was used, and, instead of using minimum wages pay, the disability benefits payable by Tenneco were available for 28.4 years of life expectancy. Using a 10% discount rate in lieu of 63A% rate would reduce the earned income loss to $315,-777.79.

In our view, there is ample evidence to conclude Parker would no longer be able to perform the work he did perform prior to his injuries and as a result would sustain a minimum loss in future earning income of at least $315,000.00 and perhaps as much as $674,000.00.

Johnny Parker, plaintiff, was active prior to his injury, with hunting and fishing being important pastimes. He cannot do either of them now, nor play with his two small children. In addition, if he walks, stands, or sits for too long a period of time, the pain in his back and legs worsens. At the time of trial (in early 1980), Parker was still taking pain pills, tranquilizers and muscle relaxants. In the light of this evidence, the jury concluded $500,000 was a fair and just award for the damages sustained.

A jury award for damages will not be modified on appeal unless it can be determined that the amount awarded was clearly wrong. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1980). We cannot say the award made by the jury was “clearly wrong”.

The compensation payments have continued since the date of the trial. Subsequent to submission of this matter, a stipulation was entered into the record showing the amount of medical expenses and workmen’s compensation payments made to Parker from the inception of his injuries to now.

Accordingly, the judgment herein is amended to read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment over in favor of JOHNNY EARL PARKER and against defendants, RAY BROOKS, LINN PERRIERA and THE TRAVELERS INSURANCE COMPANY, in solido, in the sum of FIVE HUNDRED EIGHTEEN THOUSAND, ONE HUNDRED THIRTY-SEVEN AND 32/100 ($518,137.32) DOLLARS, together with legal interest from date of judicial demand and for all costs of these proceedings.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment over in favor of TRAVELERS INSURANCE COMPANY, as intervenor, and against plaintiff and the above named defendants for the sum of SIXTEEN THOUSAND, NINE HUNDRED NINETY-FOUR AND 40/100 ($16,-994.40) DOLLARS in workmen’s compensation benefits and for the further sum of EIGHTEEN THOUSAND, ONE HUNDRED THIRTY-SEVEN AND 32/100 ($18,137.32) DOLLARS in medical benefits, and that the sums of workmen’s compensation benefits be increased at the rate of EIGHTY-FIVE AND NO/100 ($85.00) DOLLARS per week until cessation of workmen’s compensation benefits.
AMENDED AND AFFIRMED.

SAMUEL, J., dissents with written reasons.

SAMUEL, Judge,

dissenting.

As I understand the record, Tenneco refinery employees, particularly the plaintiff in this case, were required to clean up oil spills. Further, the danger of using the ladder with the oil at or near its base had to be obvious to the plaintiff (in this connection, it is difficult for me to understand how the floor of any oil refinery reasonably could be expected to be free from oil).

In my view, plaintiff’s claim should be barred by both assumption of the risk and contributory negligence. Additionally, even assuming liability, the $500,000.00 award is so excessive as to constitute an abuse of the jury’s discretion.

Accordingly, I respectfully dissent.

      . $500,000.00 was the amount of the jury verdict. An additional $17,531.68 was added to cover medical expenses pursuant to a stipulation entered into by the parties.

      . Note that one of the defendants, Linn Pern-era, was not included in this specification of error.

      . The regular operating foreman in charge of the F.C.C. Unit was Linn Perriera. A1 Thomas was his vacation relief. Both were included as defendants.

      . The criteria are as follows:
      “1. The principal or employee owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.
      2. This duty is delegated by the principal or employer to the defendant.
      3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk of others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.
      4.With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiffs damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or malperformance and has nevertheless failed to cure the risk of harm.”


author: BAILES, Judge.

text:
    Grady KENT v. William E. DE LA CRUZ and Huey Mayronne.
    No. 11998.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 1981.
    Rehearing Denied July 13, 1981.

      Guy W. Olano, Jr., Kenner, for plaintiff-appellee.
    Martin A. Welp, New Orleans, for defendants-appellants.
    Before KLIEBERT, STOULIG and BAILES, JJ.
   BAILES, Judge.

This is an appeal by William E. De La Cruz, the co-owner of certain property which the plaintiff-appellee, Grady Kent, sought to purchase. A purchase and sell agreement was entered into between Grady Kent and William E. De La Cruz; however, the co-owner, Huey Mayronne, did not agree to the sale and refused to sign the agreement.

Suit was brought by plaintiff-appellee against both co-owners to enforce specific performance and, alternatively, for damages incurred by plaintiff because of the failure of the defendants to transfer title.

At the beginning of the trial plaintiff dismissed his suit against co-owner Huey Mayronne and pursued his action against defendant-appellant, William E. De La Cruz. The trial court rendered judgment denying specific performance but granted a money judgment in the amount of $4,618.00 in special damages and $1,918.13 as attorney fees. From this judgment the defendant has appealed. The plaintiff neither appealed nor answered the appeal. Therefore, the only issue of this appeal is the correctness of the judgment awarding damages and attorney fees. Specific performance is no longer an issue herein.

It appears that sometime before plaintiff contacted William E. De La Cruz regarding the purchase of the subject property he made an independent investigation of ownership in order to make contact with the owners. He visited the Jefferson Parish assessor’s office for this purpose. He learned that the owners were William E. De La Cruz and Huey Mayronne. He contacted Mr. De La Cruz about the purchase and ultimately Mr. Kent and his wife as well as Mr. De La Cruz signed the purchase and sell agreement; however, Mr. Huey May-ronne, the other co-owner, did not sign the agreement. Mr. Kent was aware of the fact that Mr. Mayronne had not signed. He stated, though, that he thought Mr. May-ronne was agreeable to the sale.

Prior to the time Mr. Kent became interested in the purchase of the property extensive fire damage had been incurred. The City of Gretna was insisting that the owners raze the damaged structures because of their unsightly appearance. The record is not clear as to which party initiated the removal of the debris from the property. It appears that both plaintiff and defendant were equally interested in clearing the property. The plaintiff’s interest was primarily that of getting possession of the property, and the defendant’s interest certainly being to avoid the expense about to be incurred if the City of Gretna should undertake the razing through public bids. At any rate Mr. De La Cruz did obtain from the City of Gretna the required permit which he posted on the property. Immediately thereafter Mr. Kent, by utilizing certain hired assistance and heavy equipment, succeeded in clearing the property. Also, certain fill work was performed.

Aside from the expenses arising from the clearing, cleaning and backfilling of the property, plaintiff went to some expense in preparing to purchase the property. Even though he knew Mr. Huey Mayronne had not signed the purchase-sell agreement he insists that he was never informed that Mr. Mayronne was not going to come to the sale of the property. There is no showing that Mr. Kent was notified by Mr. De La Cruz that Mr. Mayronne was not in agreement with the sale of the property.

We find it was through the action of defendant-appellant in obtaining the permit for clearing the property and his inaction in not definitely advising the plaintiff that co-owner, Huey Mayronne, was not going to transfer his ownership in the subject property that caused the plaintiff to incur the expenses attendant to preparation for acquiring title and in the clearing of the debris from the lot and the fill work.

The defendant-appellant took the position that the plaintiff sought permission to clear the property for the salvage of the unconsumed building materials. The trial court chose to accept the position of the plaintiff. We find no reason to disturb this ruling. It was a credibility call on the part of the trial court and absent manifest error this ruling will not be disturbed. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The defendant presented the testimony of Mr. Tooley who related that he had both Mr. De La Cruz and Mr. Kent in his office and that he advised both parties that both co-owners and Mr. Kent would be required to sign the purchase and sell agreement before it would be a binding contract. The trial judge ruled that even though it was admitted without objection Mr. Too-ley’s testimony could not be used to vary, alter or add to the terms of a written contract. Both appellant’s and appellee’s briefs discuss this principle of law. Admittedly, this is the law. See Edwards v. State, 244 So.2d 69 (La.App. 1st Cir. 1971). Also, appellee cites Wendel v. Dixon Real Estate Company, 232 So.2d 791 (La.App. 4th Cir. 1970) for the well recognized principle of law that one may lawfully contract to sell property that he does not own and that his agreement to do so does not warrant the assumption that the contract cannot be complied with. The contract is as binding on the party who owns an individual interest as it is on the purchaser. '

These cases have no application to the decision in this case. None of these pronouncements support the basis for the plaintiff recovering the damages for the improvements made on this property. Plaintiff is entitled to recover for the reason to deny him recovery would result in an unjust enrichment of the defendant at the expense.of the plaintiff.

The courts have repeatedly recognized certain conditions must coexist for an award to be grounded on the principle of unjust enrichment. These conditions are: An enrichment, an impoverishment, a connection between the enrichment and impoverishment, no justification for the enrichment and impoverishment, and the lack of other adequate remedy. All five of these conditions or requisites are present here. See Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

The plaintiff was moved to accomplish these improvements because he was led to believe he would be able to purchase the property. He was lulled into the belief that he would acquire title from the defendants; the defendant, De La Cruz, knew though that Huey Mayronne was not going to the sale. At the appointed time then even appellant De La Cruz did not appear at the sale.

We find no legal basis for the award of attorney fees. Unless the agreement between the parties or the law provides for payment of attorney fees none is due. See Chauvin v. LaHitte, 229 La. 94, 85 So.2d 43 (1956). It may be said that $434.00 of the $4,618.00 awarded as special damages was recoverable under the contract of purchase and sell; the balance of the damages recovered is for clearing and razing the ruins of the building and for the fill work on the lot for which there is no contract or statutory basis for recovery of the attorney fees.

To the extent that recovery was allowed for attorney fees the award will be reduced.

Accordingly, the judgment is reduced to the sum of $4,618.00. As amended the judgment is affirmed at appellant’s cost.

AMENDED AND AFFIRMED.


author: GARRISON, Judge.

text:
    Milledge Audley REECE v. SHELL OIL COMPANY.
    No. 11803.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 1981.
    Rehearing Denied July 13, 1981.
    Keaty, Keaty & Garvey, Robert B. Keaty, New Orleans, for plaintiff and appellant.
    Wiedemann & Fransen, Allain F. Hardin, New Orleans, for defendant and appellee, Gremillion Service Station Maintenance, Inc.
    Hailey, McNamara, McNamara & Hall, Laurence E. Larmann, Metairie, for defendants and appellees, Beacon Enterprises, Inc. and American Mutual Liability Insurance Company.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John G. Gomila, Jr., New Orleans, for defendants and appellees, Shell Oil Company and Paul K. Caraccioli.
    Before GARRISON, CHEHARDY and BARRY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing plaintiff’s suit for damages due to personal injuries allegedly sustained by him as a result of an accident occurring on April 19,1976, when a hydraulic automobile lift dropped. Plaintiff was employed as a mechanic at the time of the accident and was inspecting a vehicle for repairs when the accident occurred. The following legal and natural persons were parties to the suit:

1. Paul Caraccroli (various spellings throughout the record) — Operator of the University Shell Service Station — Plaintiff’s employer and lessee of the premises under a lease with Shell Oil Co.
2. Traveler’s Insurance Co. — Caraccroli’s workmen’s compensation insurer.
3. Shell Oil Co. — Owner—lessor of the premises and maintained a service contract with Caraccroli and with Beacon Enterprises.
4. Beacon Enterprises — held a service maintenance and repair contract prior to the accident.
5. American Mutual Liability Insurance Co. — Beacon’s insurer.
6. Aetna — Shell Oil Co.’s insurer.
7. Gremillion Service Station Maintenance, Inc. — held a service, maintenance and repair contract after the accident.
8. Western Manufacturing Co. — Manufacturer of the lift. Western was never served and was dismissed as a party.
9. Milledge Audley Reece — the plaintiff.

The district court judgment was rendered in conformity with a jury verdict. Two juries were impanelled; the first was dismissed and mistrial declared when one juror was discovered to have seen hydraulic lifts fall béfore and made remarks to that effect in the presence of the other jurors. The judgment rendered pursuant to the verdict of the second jury granted judgment in favor of Beacon Enterprises, Inc. and Shell Oil Company. Additionally, directed verdicts were granted in favor of Aetna Casualty Company, and Gremillion Service Station Maintenance, Inc. and all incidental demands were dismissed. From that judgment, which we affirm, plaintiff appeals.

On appeal plaintiff argues that the trial court erred in failing to instruct the jury on the issue of legal fault under C.C. Art. 2322, as requested by plaintiff, that the trial court erred in granting a mistrial on the first jury and that it erred in failing to hold Shell Oil Co. liable under C.C. Art. 2322 and Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1979).

I FAILURE TO INSTRUCT THE JURY

Upon review of plaintiff’s proposed jury charges, we note that two of his charges dealt with C.C. Art. 2322 liability. The first charge reads as follows:

“Under Louisiana law, by general rule, the owner of a building is answerable for the damage occasioned by its ruin, when this is caused by negligence to repair it, or when it is the result of a vice in its original construction.
L.S.A. Civil Code Article 2322; Gilliam v. Lumberman’s Mutual Casualty Co., 119 So.2d 657, La.App. (1960).” (Tr.Vol. II, p. 323).

We have reviewed the Gilliam case, supra, and note that it deals with negligence and contributory negligence under C.C. Art. 2322. It does not discuss legal fault under that Article.

Plaintiff’s second proposed jury charge dealing with C.C. Art. 2322 is a verbatim repetition of that article. (Tr.Vol. II, p. 324).

None of plaintiff’s proposed jury charges cite the Olsen case or specifically mention legal fault under C.C. Art. 2322. A number of his jury charges dealt with distinction such as invitees, business invitees, licensees and the duty of the landlord to discover defects and warn persons on the premises. However, these distinctions are based on actions in negligence and have, additionally, been repudiated by Louisiana courts. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La., 1976).

Article 1793 of the Code of Civil Procedure requires that proposed jury charges be written. Additionally, counsel must object to the trial judge’s failure to give a jury charge in order to raise this issue on appeal:

“At close of the evidence or at an earlier time during the trial as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its pro.posed action upon the requests prior to their arguments to the jury.
A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

In the instant appeal not only did counsel fail to object, but also no Olsen charge was submitted in writing. We note that the trial judge did read C.C. Art. 2322 to the jury in the course of his charge (Tr.Vol. IV, p. 89) and instructed the jury on negligence theory, but counsel’s failure to timely object means that this court cannot consider this issue on appeal.

II ERROR IN GRANTING A MISTRIAL

We note that by the stipulation of all counsel the recordation of voir dire was waived. Accordingly, we do not have a transcript of the juror’s alleged prejudicial remarks before us in this record. The trial judge “went on the record” when he declared a mistrial (Tr.Vol. Ill, pp. 5-8) and provided this court with his reasons as well as his memory of the juror’s remarks. We find that, both as a practical matter and as a point of law, we cannot review language which is not part of the record before us. Unlike some technical rulings made by this court where there is no transcript before us (example: Exceptions of no right of action), the very essence of this specification of error is the precise language used. In the absence of a transcript, we are unable to make any finding that the trial judge clearly abused his discretion on this matter.

Ill ERROR IN FAILING TO HOLD SHELL LIABLE

Finally, we note that appellant argues that the trial court erred in failing to hold Shell liable. In the instant case, the “trier of fact” was the jury. On factual questions, this court is bound by the manifest error rule. After a full review of the evidence and testimony contained in the record, we find that the record establishes that the findings of the jury are not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La., 1978). In spite of the presence of some evidence which, if believed, would not support the jury verdict, we find more than sufficient evidence indicating that the jury was not clearly wrong.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.

      . In Olsen, the United States Court of Appeals for the Fifth Circuit certified five questions to the Louisiana Supreme Court. In answering those questions, the Supreme Court stated that “(i)n the absence of another statute providing otherwise, the strict liability under Article 2322 .. . imposes a non-delegable duty . .. (for) repair and ... for harm caused by any defect in the structure or its appurtenances.” At 1291.