author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Lillie Mae COLEMAN.
    No. 67303.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James D. Caldwell, Dist. Atty., George F. Fox, Asst. Dist. Atty., for plaintiff-appellee.
    Voelker, Ragland, Brackin & Crigler, Charles R. Brackin, Lake Providence, for defendant-appellant.
   DIXON, Chief Justice.

For approximately five years, Lillie Mae Coleman received welfare benefits. In order to demonstrate eligibility, she completed forms in which she represented that Anderson Coleman, her husband, neither lived with her nor supported her and her six minor children. The state, believing these statements to be false, charged Mrs. Coleman with three counts of theft. She was convicted and sentenced to three years at hard labor.

The state’s principal witness at trial was Daniel Mallette, a fraud investigator for the Office of Family Security. Mallette testified that he conducted a surveillance of Mrs. Coleman’s residence and had twice observed Anderson go there in the middle of the night. The rural mail carrier testified that she had delivered Anderson’s mail to Mrs. Coleman’s house, and had occasionally seen Anderson’s red pick-up truck parked in front of the residence. The operator of the local Otasco store testified that he had sold two refrigerators, a washing maching and other items to Anderson, who listed his address as that of Mrs. Coleman. The items were delivered to Mrs. Coleman’s residence. The vice president of a local bank testified that his bank extended several loans to Anderson and in all instances Anderson listed his address as that of Mrs. Coleman. The state also introduced signed statements by Anderson and Mrs. Coleman in which they admitted that they were living together while she was receiving the welfare benefits. The admissibility of these statements is challenged in this appeal. Because we find that the assignments of error lack merit, we affirm the conviction and sentence.

Assignments of Error Nos. 1 and 4

These assignments of error deal with a statement signed by Anderson admitting that he and his wife were living together while she was receiving welfare benefits. At trial, the state called Anderson as a witness. Anderson denied that he had lived with his wife while she was receiving the benefits. Furthermore, he told the prosecutor that he did not remember signing any statement in which he admitted living with his wife at that time. During direct examination, the state proceeded to impeach Anderson’s credibility pursuant to R.S. 15:487, which allows a party to impeach his witness because of surprise or hostility. Defense counsel did not object to the impeachment. In fact, he told the trial judge he realized that the state had a right to impeach Anderson and that the process was “perfectly legitimate.” Defense counsel did object, but his objections were directed to the voluntariness of the statement with which the state sought to impeach Anderson. While not objecting contemporaneously to the propriety of the impeachment, defense counsel, in his assignment of error No. 4, contends that the state knew all along that Anderson would deny having lived with Mrs. Coleman and therefore that the requirements of R.S. 15:487 were not met. This court will not review the propriety of the impeachment because no contemporaneous objection was made. See State v. Kelly, 375 So.2d 1344 (La.1979); State v. Valentine, 364 So.2d 595 (La.1978); State v. Holstead, 354 So.2d 493 (La.1977).

Regarding the objection actually lodged, defendant contends that the trial judge erred in ruling that Anderson’s statement was free and voluntary. She claims that the state did not meet the requirements of R.S. 15:451, which provides:

“Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.”

By advancing this argument, defense counsel assumes that this article is applicable to statements introduced for the limited purpose of impeaching a witness’ credibility. R.S. 15:451, however, is designed to protect the constitutional rights of the defendant. By imposing an affirmative burden on the state to show that a defendant’s confession was freely and voluntarily given, that article safeguards a defendant’s Fifth Amendment protection against self-incrimination. R.S. 15:451 is a corollary of R.S. 15:452, which provides that “[n]o person under arrest shall be subjected to any treatment designed by effect on body or mind to compel a confession of crime.”

Furthermore, even if we were to find R.S. 15:451 to be applicable to confessions of guilt by witnesses in criminal prosecutions, R.S. 15:451 would still not be applicable in the instant case. The statement by Anderson, in which he admitted living with his wife, is not a “confession” as that term is defined in R.S. 15:449:

“The term ‘admission’ is applied to those matters of fact which do not involve criminal intent; the term ‘confession’ is applied only to an admission of guilt, not to an acknowledgment of facts merely tending to establish guilt.”

Anderson’s admission that he had been living with his wife simply does not evince criminal intent. See generally State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); Comment, Confessions in Louisiana Law, 14 La. L. Rev. 642 (1954). For the foregoing reasons, there was no burden on the state to prove, as a prerequisite to admissibility, that Anderson’s statement was freely and voluntarily given. Assignment of Error No. 4 lacks merit.

In her first assignment of error, defendant contends that the judge erred in denying her motion for a mistrial when Mallette told the jury that Anderson had admitted living with Mrs. Coleman. The judge sustained defendant’s objection and admonished the jury to disregard the remark. As discussed above, the statement was later admitted into evidence for the limited purpose of impeaching Anderson’s credibility, and Mallette was called upon to testify about the circumstances surrounding the taking of the statement from Anderson.

There was no error in denying the motion for a mistrial, and no merit in this assignment.

Assignment of Error No. 2

This assignment of error concerns Mallette’s unsolicited, unresponsive answer to the question: “What can you personally testify to that would lead us to believe . .. [t]hat, in fact, he did live there and he did support them.” Mallette’s response consisted of summaries of things that he heard Anderson had done. Defense counsel objected to the testimony as hearsay, but his objection was overruled. While this court agrees with defendant that the statement constituted impermissible hearsay, testimony by other witnesses clearly established most of the factors mentioned by Mallette. Due to the cumulative nature of Mallette’s testimony, any error here was harmless. C.Cr.P. 921; State v. Williams, 366 So.2d 1365 (La.1978).

This assignment of error lacks merit.

Assignment of Error No. 3

Defendant contests the trial judge’s admission of a written statement signed by Mrs. Coleman in which she admitted that her husband had been living with her. The defendant contends that the state had not “affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducement or promises.” R.S. 15:451.

Mrs. Coleman testified for the limited purpose of showing the circumstances surrounding the taking of the statement. On direct examination the following exchange occurred:

“Q. Well, Mrs. Coleman, would you tell the Court what happened the day that ... do you recall signing the statement?
A. I signed it, Your Honor, but I didn’t know what it was.
Q. You didn’t know what it was.
A. No sir.
Q. What did you believe was going to happen?
A. Well, [Mrs. Robinson] told me just start to paying the payment back. It wouldn’t be nothing to it.
Q. Is that why you sign (sic) it?
A. Yes, sir.”

In direct contrast to Mrs. Coleman’s version was the testimony of Mallette and Mrs. Nettie Robinson, an eligibility worker for the Office of Family Security. Mallette wrote down the statement after questioning Mrs. Coleman; Mrs. Robinson, who was present, witnessed the event. They testified that Mrs. Coleman was advised of her Miranda rights, that no force or intimidation was used, and that no promises or inducements were made. Defense counsel in brief urges that the confession was procured by promises that Mrs. Coleman would not be prosecuted if she paid back the money. This allegation is thoroughly refuted by the testimony of Mallette and Mrs. Robinson. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are not supported by the evidence. State v. Gaines, 354 So.2d 548 (La.1978); State v. Hutto, 349 So.2d 318 (La.1977); State v. Adams, 347 So.2d 195 (La.1977). In the instant case there is ample evidence in the record to support the trial judge’s determination that the confession was voluntary.

This assignment lacks merit.

Assignment of Error No. 5

By this assignment of error defendant contests the trial judge’s refusal to give the jury a special charge on entrapment. The judge’s refusal was based on his conclusion that employees of the Office of Family Security are not law enforcement officials of the state. Pretermitting that issue, it is clear that defendant presented no evidence to justify this special charge. Mrs. Robinson testified that her office did not solicit people to apply for food stamps, and there is no evidence that people were induced to lie in order to receive food stamps or other forms of welfare. The trial judge properly refused to give defendant’s special charge. Louisiana State Bar Association v. Quaid, 368 So.2d 1043 (La.1979); State v. Fox, 251 La. 464, 205 So.2d 42 (1967); State v. Johnson, 250 La. 85, 193 So.2d 794 (1967).

This assignment is without merit.

Assignment of Error No. 6

In this assignment of error defendant contends that because twenty-three of the sixty prospective jurors comprising the petit jury venire were either excused or absent, she was deprived of a trial by jury composed of a fair cross section of the community. No evidence (except the fact of high absenteeism) was adduced to support this contention. When allegations of prejudice are not substantiated by any evidence offered as proof of that fact, this court will not overturn the trial judge’s ruling. State v. Badon, 338 So.2d 665 (La.1976); State v. Bluain, 315 So.2d 749 (La.1975); State v. Elie, 257 La. 130, 241 So.2d 515 (1970); State v. Ceaser, 249 La. 435, 187 So.2d 432 (1966).

This assignment of error lacks merit.

Assignment of Error No. 7

In this assignment defendant contends that the trial judge erred in denying her motion for new trial on the basis of newly discovered evidence. The burden on a defendant in obtaining a new trial on this basis is twofold: first, he must demonstrate that the evidence was not discoverable before or during trial despite the exercise of reasonable diligence; second, he must show that “if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty ...” C.Cr.P. 851(3). Neither burden has been met in this case.

Mrs. Coleman offered no evidence at trial. At the hearing on the motion for a new trial, she offered the testimony of a good friend who attended the same church and the testimony of a relative by marriage who has lived across the street since 1976. Neither witness had been asked to testify at the trial. Defense counsel’s assertion in brief that “defendant was unable to find witnesses willing to come forward in her behalf because they did not want to get involved ...” does not satisfy the requirement of reasonable diligence.

Assuming, however, that these witnesses were not discoverable until after the trial, it does not seem that their testimony probably would have changed the verdict. The church friend testified that Anderson and Mrs. Coleman came to church in separate vehicles, and did not sit together. However, that witness also testified that Anderson was a deacon and that deacons did not sit with the general congregation. The neighbor testified that he saw Anderson over at Mrs. Coleman’s only occasionally, and that Anderson never stayed long. The testimony of these two witnesses is inconclusive and not so material that it probably would have changed the verdict.

This assignment of error lacks merit.

For the foregoing reasons, the conviction and sentence are affirmed.

WATSON, J., dissents.

      . The bill of information charges Mrs. Coleman with the following counts:
      “Count No. 1- Between February, 1973 and June 1978, Lillie Mae Coleman committed theft of Food Stamps, having a value of $5,792.00, Count No. 2- Between November, 1972 and June, 1978, Lillie Mae Coleman committed theft of Aid to Families with Dependent Children checks having a value of $8,041.00.
      Count No. 3- Between October, 1973 and June, 1977, Lillie Mae Coleman committed theft of Medical Vendor Payment checks having a value of $3,362.29.”
      The six member jury convicted Mrs. Coleman of “theft of property of approximately $17,000 in value,” one of the “responsive verdicts to the offense charged.” Apparently, the state treated the criminal conduct as one offense.

      . Immediately before defense counsel objected to Mallette’s testimony as hearsay, Mallette had stated that Anderson “was seen at the house at night.” After the objection was lodged, the witness blurted out: “I saw him. I saw him.” Id. It was on this basis that the objection was overruled. Defense counsel did not clarify his objection at that time and arguably no contemporaneous objection was made. Nevertheless, we have addressed the merits of the objection.


source: Caselaw Access Project

license: Public Domain

text:
    Robert M. BREITHAUPT, Jr. v. Luke SELLERS.
    No. 67332.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William Henry Sanders, Jena, Martzell, Montero & Lamothe, New Orleans, Wilson Montero, for plaintiff-applicant,
    Gold, Little, Simon, Weems & Bruser, Charles S. Weems, III, Herbert J. Mang, Jr., Alexandria, for defendant-respondent.
   DIXON, Chief Justice.

Robert Breithaupt, Jr. was the victim of a hunting accident. Breithaupt, who had himself been hunting deer, was shot in the left thigh by another hunter. He contends that Luke Sellers is the man who shot him, and has instituted this tort action against Sellers. After the close of the plaintiff’s case, the trial judge directed a verdict for the defendant, ruling as a matter of law that plaintiff’s contributory negligence barred his recovery. The Court of Appeal affirmed. 380 So.2d 1257 (La.App.3d Cir. 1980). Both the trial court and the Court of Appeal reasoned that, inasmuch as R.S. 56:143 requires hunters to wear fluorescent material known as “Hunter orange,” a victim of a hunting accident is barred from recovering for his injuries if he was a hunter who was not wearing “Hunter orange.” Because we disagree with this reasoning, we reverse.

The motion for directed verdict, a new device in Louisiana, was first made available in civil jury trials in 1977. C.C.P. 1810, added by 1977 La. Acts, No. 699. Although it created the device, the legislature did not provide the standard of proof by which the judge must decide whether or not to grant the motion, and the judges of this state have undertaken the task of formulating the appropriate standard. See Rawls v. Damare, 377 So.2d 1376 (La.App. 4th Cir. 1979), cert. denied, 380 So.2d 72 (La.1980); Campbell v. Mouton, 373 So.2d 237 (La.App.3d Cir. 1979); Dupree v. Pechinay Saint Gobain Co., 369 So.2d 1075 (La.App. 1st Cir. 1979), cert. denied, 371 So.2d 1341 (La.1979); Roncal v. Commercial Union Assurance Co., 367 So.2d 24 (La.App.2d Cir. 1978); Duplechin v. John Doe, Rimmer & Garrett, Inc., 365 So.2d 53 (La.App.3d Cir. 1978).

In the instant case, the Court of Appeal adopted the following test:

“. .. could reasonable persons, viewing all the evidence in a light most favorable to plaintiff, have reached different conclusions as to whether plaintiff was con-tributorily negligent.” 380 So.2d at 1259. (Footnote omitted).

Utilizing the standard adopted by the Court of Appeal, and viewing the evidence in the light most favorable to the plaintiff, the accident occurred in the following manner:

On the afternoon of November 30, 1977, plaintiff went deer hunting at the South Olla Oil Field near Jena. The land, although privately owned, was not posted. Thus, plaintiff violated R.S. 56:143 when he did not wear “Hunter orange.” After sitting at his stand for approximately one hour, he spotted another hunter from a distance later determined to be 833 feet. The man momentarily disappeared into the woods. When the man reappeared, the plaintiff stood up, waved his rifle over his head, and, believing the man had seen him, began walking toward the figure. After another brief disappearance, the man dropped to one knee, aimed at the plaintiff, and fired. At some point prior to the accident, the plaintiff says he looked at the man through the scope of his own rifle, and saw a man with a narrow lined face, light grey hair, wearing camouflage coveralls and a “Hunter orange” vest. Additionally, Breithaupt noticed that the weapon was a bolt action rifle with a scope and a sling. Breithaupt later identified Sellers as the man he had seen.

On the face of the record, a major obstacle to the plaintiffs credibility is the fact that, until this trial, he apparently never told anyone that he had “scoped” the hunter who shot him. Furthermore, plaintiff at trial “forgot” his prior testimony that he had initially accused his friend Grayson Walpole of having shot him. Nonetheless, it is not the function of this court to judge the credibility of the plaintiff’s story. Credibility determinations are within the province of the trier of fact. We accept the facts in a light most favorable to plaintiff in order to assess the propriety of the trial judge’s ruling granting the motion for directed verdict. When the evidence is viewed in this manner, this court cannot accept the Court of Appeal’s conclusion that plaintiff was eontributorily negligent as a matter of law.

Even assuming that Breithaupt was negligent in failing to wear “Hunter orange,” plaintiff’s conduct could not eon-stitute contributory negligence unless such negligence also was a legal cause of his accident. Weber v. Phoenix Assurance Co. of New York, 273 So.2d 30 (La.1973). The threshold inquiry in the determination of legal cause is whether the act was a substantial factor in causing the injury. As stated by this court in Dixie Drive It Yourself System New Orleans co. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962):

“Negligent conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm. Under the circumstances of this case, the negligent conduct is undoubtedly a substantial factor in bringing about the collision if the collision would not have occurred without it. A cause-in-fact is a necessary antecedent. If the collision would have occurred irrespective of the negligence of the driver of the R C Cola Truck, then his negligence was not a substantial factor or cause-in-fact. . . .” 242 La. at 482, 137 So.2d at 302. (Footnotes omitted).

In determining Breithaupt’s conduct to be a cause-in-fact of his injury, the Court of Appeal reasoned:

“We do not believe we are assuming too much in believing plaintiff would not have been shot had he been properly attired. The evidence clearly established conditions of visibility such that, had plaintiff been attired with ‘hunter’s orange’, any hunter would have noted this fact. We feel that we can assume that reasonable persons would have responded properly by concluding that plaintiff was a human being and not a game animal-a deer. Such a reasonable person would not have fired at plaintiff. The assumption that whoever shot plaintiff was a reasonable person is warranted because we are dealing with the question of plaintiff’s negligence. If plaintiff had been clothed in ‘hunter’s orange’ but had nevertheless been shot, the inquiry then would be whether the shooter acted unreasonably, and contributory negligence on plaintiff’s part would not have been a factor.” 380 So.2d at 1260.

We disagree with this reasoning. As we stated in Dixie Drive It Yourself System, the inquiry is whether the- accident would have occurred regardless of whether Brei-thaupt wore “Hunter orange.” If Brei-thaupt’s story is believed, then the jury might be willing to infer that, since plaintiff could discern the hunter’s facial features, the hunter should have been able to detect that plaintiff was a man and not a deer. The jury might have been willing to believe that the hunter fired without adequately looking at his target and that the accident would have happened regardless of whether Breithaupt wore “Hunter orange.” Whether plaintiff’s conduct was a cause-in-fact of his injury is a question of fact appropriate for the jury’s consideration. The Court of Appeal, in assessing the causative role of plaintiff’s negligence, assumed that the other hunter acted reasonably. In so doing, the Court of Appeal has assumed the most difficult factual issue presented by this case. If one assumes that the hunter acted reasonably, then one is led to the inescapable conclusion that the only cause of the injury was plaintiff’s own negligence.

If the other hunter, through the use of reasonable care, could have detected that plaintiff was a man and not a deer, then he had a duty to refrain from shooting regardless of whether his victim was an innocent picnicker or a fellow hunter who has violated R.S. 56:143. We note that this statute is of limited utility, since it does not apply if an individual is not hunting deer, or if he is hunting on private, posted land. Had the statute been inapplicable, then under the reasoning of the Court of Appeal, the plaintiff could have recovered. This would mean that hunters who shoot men in the woods are free from liability only when they shoot fellow hunters who violate R.S. 56:143. Hunters who violate R.S. 56:143 do not, for that reason alone, deserve to be shot.

A motion for directed verdict would have been appropriate only if reasonable men could not have disagreed on the issue of plaintiff’s contributory negligence. Whether this plaintiffs conduct contributed to his injury is a factual issue that should have been presented to the jury. For the foregoing reasons, a directed verdict was inappropriate in this case.

The judgment of the Court of Appeal is reversed, and the case is remanded to the trial court for a new trial. Allocation of costs is to await final judgment.

      . The presentation of plaintiff’s case in chief lasted five days and consisted of seventeen witnesses and a jury view of the scene. At the close of plaintiff’s case, the defense moved for a directed verdict on the theory that plaintiff was contributorily negligent as a matter of law because of his failure to wear “Hunter orange.” Prior to oral argument, the trial judge was unreceptive to the motion, because he believed that “... the real issue is not, whether failure to wear hunter’s orange is negligence or not. It’s a question of whether or not that caused the accident.” Defense counsel then argued that under Tolbert v. Ryder, 345 So.2d 548 (La.App.3d Cir. 1977), violation of a statute creates a presumption of negligence, and the burden of proof shifts to that party to exculpate himself. Defense counsel pointed out that in the instant case, plaintiff had not carried his burden because he had shown neither that “Hunter orange” was unavailable to him, nor that the accident would have occurred anyway. Plaintiffs attorney responded:
      “That’s right Your Honor, there was no testimony on that point. I will agree with him that the testimony on that part of it, uh, just wasn’t there. And, I’m not joining in this motion, but that testimony was awful, awful weak, I remember that, it wasn’t in there.”
      After hearing additional argument, the trial judge granted the motion, announcing to the jury that “[t]his Court will not be placed in a position of being the only lawyer in the courtroom who disagrees with [defense counsel’s] arguments.” The trial judge’s initial reaction was correct.

      . R.S. 56:143 entitled “ 'Hunter orange’ display by deer hunters with guns,” is a criminal statute found in title 56, “Wild Life, Fisheries, and Forestry.” It provides:
      “Any person hunting deer shall display on his head or chest, and/or back a total of not less than four hundred square inches of material of daylight fluorescent orange color known as ‘Hunter orange’. These provisions shall not apply to persons hunting deer on property which is privately owned and legally posted, or to archery deer hunters except when bow and arrow are used to hunt deer on wildlife management areas where a gun season for deer is in progress.
      Whoever violates the provision of this section shall be fined not more than $100 or imprisoned for not more than ninety days, or both.”

      . Prior to this tort action, there had been an unsuccessful criminal prosecution against Sellers. The record is unclear regarding the specific criminal statute alleged to have been violated by Sellers. Breithaupt testified at the criminal trial that he “could make out his features.” He did not, however, indicate that the basis of his identification was anything other than what he had seen with his unaided eyes.

      . Grayson Walpole, a friend of plaintiff, was the first person who came to Breithaupt’s rescue. At the criminal trial Breithaupt testified that the first thing he told Walpole was: “Damn, Walpole, I think you shot me.” During cross-examination in the tort action, he testified that he did not remember making such a statement.

      .In order to bar a plaintiffs recovery because of his contributory negligence, a court must find both that the plaintiff was negligent and that the negligence was a legal cause of his injury. The plaintiff’s attorney in brief has argued that plaintiff was not negligent in failing to wear “Hunter orange” since he had terminated his hunting activities and thus no longer required to wear “Hunter orange.” Alternatively, the plaintiffs attorney argued that the accident occurred after legal hunting hours so the statute was inapplicable. As a final argument, the plaintiffs counsel argued that R.S. 56:143 is not an appropriate standard of care in a civil case inasmuch as it is not designed to promote safety but is designed to enable game wardens to spot hunters. Because this court has found that a factual issue exists regarding whether plaintiff’s conduct was a legal cause of his injury, we pretermit the issue of whether plaintiffs conduct was negligent. We assume for purposes of this opinion that plaintiff was negligent in failing to wear “Hunter orange.”


author: CALOGERO, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. Calvin MILLS.
    No. 67366.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    Miriam G. Waltzer, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Terry Q. Alarcon, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

Alexander Ash, relator herein, complains of a judgment decreeing forfeiture of an appearance bond and of the trial court’s refusal to rescind the forfeiture.

On September 12, 1975, relator and his girlfriend, Hilda Mills, signed a $5,000.00 property bond for the criminal court appearance of Hilda’s brother, Calvin Mills, who had been charged with possession of heroin with intent to distribute in violation of R.S. 40:966. The property owned by relator at 1532 Gen. Ogden, New Orleans, was security for the bond. Subsequent to the posting of the bond and prior to October 7, 1976, Calvin Mills appeared in court on numerous occasions. On October 7, 1976, Mills failed to appear for trial. He did however again appear in court on several occasions following that date and on October 26,1977, the district attorney nolle pros-equied the charge. On September 16,1979, Mills was killed.

Defendant’s failure to appear in court for trial on October 7, 1976, prompted the scheduling of another trial date for October 18, 1976, and an attempt to serve sureties relative to appearance on that date. On that date, neither defendant nor relator was present and judgment was rendered ordering the bond forfeited.

Ash later learned of the inscription of bond forfeiture on his property and inquired about it. This inquiry prompted a demand upon him to pay the judgment. Ash secured counsel and filed a motion to set aside the judgment of bond forfeiture. The trial judge denied the motion and relator applied to this Court for review.

On the appearance bond, Calvin Mills gave his address as 3324 S. Robertson Street, New Orleans. This same address appears on the coroner’s death certificate four years later. Sureties Alexander Ash and Hilda Mills gave, as their address, the Gen. Ogden address of the property securing the bond.

The chronology of the scheduled court appearances as shown by the minutes is as follows:

Sept. 11,1975-Defendant in court. Hearing for attorney set for Sept. 19, 1975.
Sept. 19, 1975-Defendant in court. Continued until Sept. 24, 1975.
Sept. 24, 1975-Defendant in court. Trial set for Nov. 26, 1975.
Nov. 26, 1975-Trial continued until Dec. 17, 1975.
Dec. 17, 1975-Trial continued until Jan. 12, 1976.
Jan. 12, 1976-Case transferred from Section “D” to Section “B”.
June 24, 1976-Trial continued by agreement until July 21, 1976.
July 21, 1976-Trial continued by the court to July 28, 1976, due to jury trial in another case.
July 28, 1976-Trial continued by the court due to jury trial in another case. To be reset.

The next minute entry is for October 7, 1976, and shows that defendant did not appear for trial. On September 30,1976, a subpoena had issued for Calvin Mills ordering him to appear for trial on that date, October 7th. The back of this subpoena contains the notations: “This is projects”, “Name not on reg”, “No info from neighbors”, and “Need more info”. The “Return on Domiciliary Service” portion of the subpoena is signed and states that it was received by the deputy sheriff on October 5, 1976. The remainder of the blanks are empty. The “neighbors” who had no information about Calvin Mills are not listed. The record contains no indication that a subpoena was issued to the sureties for October 7, 1976.

Following defendant’s failure to appear in court on October 7th, subpoena was issued to both sureties to inform them that defendant had not appeared on October 7, 1976, and that trial was reset for October 18, 1976. The subpoena contains the warning “The failure of said defendant to appear on said latter date will result in the forfeiture of your Bond, without further notice and according to law.” Service thereof, upon sureties, apparently was attempted on October 11, 1976. The reverse on this subpoena carries the notation: “Mrs. Hogan who lives at 1532 Gen. Ogden St. said Alexander Ash does not live there.” A notation on the “Return on Domiciliary Service” portion of the form states “Not live there.” The record does not contain a subpoena addressed to Calvin Mills for the October 18, 1976, court appearance.

Defendant, needless to say, failed to appear on October 18th. Sureties also apparently made no appearance through counsel or otherwise on October 18th. (The subpoena itself only relates that defendant is being directed to appear, not sureties.) The state moved that bond be forfeited. The trial court granted the motion. Copies of this judgment were sent to the sureties by certified mail. These letters were returned to the clerk of court marked “Moved, left no address”.

Relator argues that the lack of notice makes the judgment of bond forfeiture void ab initio. Notice and opportunity to be heard are essential elements of procedural due process. Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). Both the federal and Louisiana constitutions guarantee that one may not be deprived of property without due process of law.

Louisiana Revised Statutes 15:85 A(l), the law applicable to bond forfeiture, reads:

“A. All bonds taken to secure the appearance of any person before any district court, except at a preliminary examination, shall be forfeited and collected as follows:
(1) If at the time fixed for appearance such person fails to appear and answer when called, the judge, on motion of the district attorney, upon hearing of proper evidence including service or attempted service upon the defendant and service upon the surety, shall forthwith enter a judgment decreeing the forfeiture of the bond and against such person and his sureties in solido for the full amount thereof. After entering the fact of such failure to appear in the court minutes, the clerk of court shall promptly mail notice of the forfeiture to the surety on the bond whose address is on the face thereof and shall execute an affidavit of the mailing and place it in the record. A copy of the notice shall also be mailed to the agent of the surety who posted the bond. Mailing the notice to the agent alone shall not constitute compliance with this Section. Failure to mail the proper notice within sixty days after the entry of the forfeiture shall release the surety from all obligations under the bond.” (Emphasis provided.)

The pertinent inquiry is whether the trial judge, before ordering the forfeiture, heard “proper evidence including service or attempted service upon the defendant and service upon the surety.” Regarding the service or attempted service of the October 7th subpoena upon the defendant, the record clearly shows that defendant was not in fact served. The notation on the back of the subpoena does not clearly establish that the sheriff attempted service at the 3324 S. Robertson Street address, defendant’s given address, whereat he had presumably been served prior notices. The notation does show that the sheriff went to the office of the housing project in which 3324 S. Robertson Street is apparently located. It also indicates that the sheriff spoke with some people in that area who did not know defendant, but the names and addresses of these people are not included in the information. Neither is the date of such attempt included in the sheriff’s notation.

The serving officer is to make a return showing the date and manner in which service was made. R.S. 15:30; C.Cr.P. art. 736. Article 736 further states that when the person cannot be found, the sheriff must set out in his return every fact that in his opinion justifies the return. Although the article is specifically addressed to the subpoenaing of witnesses, the same diligence must be exerted to serve a defendant with notice of his trial.

In State v. Mizell, 341 So.2d 385, 388 (La.1976), we said:

“A return on a subpoena must show what steps have been taken to find an accused’s witnesses, what inquiries have been made, from whom, and where those inquiries were made. It is not enough that an officer assert that a witness cannot be found; he must state every fact which justifies this conclusion on his part. This done, the essential question is whether there has been on the part of the officer that diligent search without which the accused might be deprived of the right of compulsory process. State v. Scott, 110 La. 369, 34 So. 479 (1903). We have held that a sheriff in serving a subpoena may not rely on the account of others that a witness is not home or out of the jurisdiction without making further inquiry as to where the witness might be found or when he might return. State v. Bickham [208 La. 1026, 24 So.2d 65 (1945)] supra; State v. Owens [167 La. 1016, 120 So. 631 (1929)] supra.”

From the record, it is equally clear that the sureties were not in fact served. The state suggests that attempted service is sufficient in light of the provision of C.Cr.P. art. 328 that the surety’s address shall be conclusively presumed to continue for all proceedings on the bond until he files in the court a written declaration changing the address. We pretermit a decision on this issue at the present time because our resolution of this case in its present posture does not require such. However, we do observe that a literal application of R.S. 15:85 A(l) would preclude a judgment of bond forfeiture whenever the surety is not in fact served. Arguably such a result may not have been intended by the legislature in light of the unamended presence of C.Cr.P. art. 328 imposing upon the surety the duty to notify the clerk of court of a change in his address.

Our inquiries into service or attempted service on the defendant and service on the sureties are hampered by the absence of an adequate record in this case. We do not have before us any transcript of proceedings in court on October 18, 1976, when the district attorney moved for bond forfeiture. Consequently, we cannot determine whether the judge considered as “proper evidence” anything beyond the returns on the subpoena before decreeing forfeiture of the bond. On the present limited record before us, we are inclined to conclude that considering R.S. 15:85 A(l), the motion to rescind the bond forfeiture should have been granted. However, we decline to so decide where the record is so incomplete, especially where evidence was not presented at the hearing on the motion to rescind.

For these reasons, we determine that fairness to both the state and relator would better be served by upsetting the judgment of bond forfeiture and remanding this case for a full evidentiary hearing, whereat the trial court can properly resolve whether the requirements of R.S. 15:85 A(l) were met.

Decree

Accordingly, the judgment of bond forfeiture is set aside and the case remanded to the trial court.

JUDGMENT SET ASIDE; CASE REMANDED.

DIXON, C. J., dissents with reasons.

WATSON, J., agrees with the result, but would not remand; therefore, he concurs in part and dissents in part.

DIXON, Chief Justice

(dissenting).

I respectfully dissent, and would reverse on the record before us.

      . While the bond indicates that the property is owned by both Alexander Ash and Hilda Mills, we presume that it is owned only by Alexander Ash, for he alone filed the motion to set aside the bond forfeiture and the application in this Court.

      . The minute entries for scheduled court appearances after October, 1976, are as follows:
      Sept. 19, 1977-Pre-trial unavailing. Trial set for Sept. 23, 1977.
      Sept. 23, 1977-Trial continued by court due to trial of another case. Set for status hearing on Oct. 6, 1977.
      Oct. 6, 1977-Status hearing continued until Oct. 7, 1977. Defendant remanded to Parish Prison.
      Oct. 7, 1977-Status hearing continued until Oct. 11, 1977. Defendant remanded to Parish Prison.
      Oct. 11, 1977-Counsel for defendant failed to appear. Status hearing continued until Oct. 12, 1977. Defendant remanded to Parish Prison.
      Oct. 12, 1977-Trial set for Oct. 26, 1977. Defendant remanded to Parish Prison.
      Oct. 26, 1977-State nolle prosequied charge against defendant. Defendant discharged.

      . In brief relator vigorously protests the truth of the fact that on October 11, 1976, one “Mrs. Hogan” resided at 1532 Gen. Ogden Street.

      . While the record in its present posture is silent in this regard, counsel in brief contends that the judge would not hear evidence when the motion to rescind was taken up.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Egbert ANDERSON.
    No. 67377.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., J. Kevin McNary, David R. Paddison, Asst. Dist. Attys., for plaintiff-appellee.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   DENNIS, Justice.

Defendant, Egbert Anderson, was convicted of first degree murder in violation of La.R.S. 14:30. The unanimous jury recommended a life sentence without benefit of parole, probation or suspension, and the trial judge sentenced the defendant accordingly. Defendant appeals his conviction on the basis of fourteen assignments of error, only ten of which are argued here. We find no merit to these assignments and therefore affirm.

The defendant was charged with shooting a man at close range in the early morning hours of October 20, 1979. The state’s three eyewitnesses testified that the defendant shot the victim at close range with a pistol and one witness testified further that he saw the defendant bend over the victim and remove something from his body. The defense witnesses-the defendant’s mother, sister, and a family friend, all testified that Anderson was with them at a neighborhood bar during the time the killing took place.

ASSIGNMENT OF ERROR NO. 1

By this assignment, the defendant argues that the trial court erred in denying his motion to quash the jury panel, or alternatively, to grant a continuance until another jury panel could be assembled.

Defendant alleges that the January, 1980 jury panel considered twelve first-degree murder trials in one month, that after these trials assistant district attorneys told certain jurors that defendants who do not take the witness stand probably have criminal records, and that the jury panel was exposed to extensive media coverage of a rash of murders early that year. However, defendant failed to present any evidence to prove these allegations. La.C.Cr.P. art. 419. Neither does the defendant show an abuse of the trial judge’s denial of his motion to continue. La.C.Cr.P. art. 712.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 4

The defendant here contends that the trial court erred in overruling his motion to suppress identification and in failing to require the state to furnish the name and criminal record of a state witness who testified at the hearing on the motion and later at trial. The defendant claims to have been prejudiced by the state’s withholding of the witness’ full name and by its giving the defendant an “incomplete and defective ‘rapsheet.’ ”

The record, however, reflects that the defendant knew the witness’ name at the motion to suppress and that she was fully identified at trial. The record also shows that the state gave the defendant the only “computer rap sheet” that it had on the witness. Defense counsel questioned this witness at length at trial about her past convictions and also impermissibly elicited admissions regarding other illegal activity. The defendant does not claim that the witness had any convictions other than those disclosed. Thus, we disagree with the defendant that his ability to cross-examine this witness effectively was impaired or that the state withheld any material information regarding this witness in its possession. This case is distinguishable from State v. Harvey, 358 So.2d 1224 (La.1978), in which the trial judge did not require the prosecutor to respond to a specific request by the defendant for any conviction records of prospective state witnesses it had.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 7

The defendant maintains that the trial court erred in admitting three photographs of the victim and scene of the offense. He asserts that the photographs were cumulative and irrelevant. The photographs in this case were relevant however, to establish the manner and cause of death. See State v. Vernon, 385 So.2d 200, 204 (La.1980). Although the photographs are not in the record before us, the defendant does not allege that they were gruesome or inflammatory. Thus, even if the probative effect of the photographs was not great, the trial court did not err in allowing their admission in the absence of any inflammatory effect. See State v. Gilmore, 332 So.2d 789, 795-96 (La.1976).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 8

The defendant by this assignment alleges that the trial judge erred in overruling his objection to the proposed testimony by state’s witness, a police detective, concerning the reasons anonymous phone calls are made to him. An anonymous caller had given the police information which had contributed to the arrest of Anderson. The prosecutor asked Detective Rice, who had received the particular anonymous tip in this case, why he got such anonymous calls in murder cases. The defendant objected on the grounds that the detective did not know the reasons. The trial judge overruled the objection, allowing the detective to answer if he knew. The detective thereupon stated that he believed the callers wanted to see the perpetrator brought to justice, but avoid having to testify in court.

Courts have generally discouraged the use of opinion evidence because it is less positive than strictly factual testimony, may unduly influence the fact finder, and undercuts judicial economy. Opinion and Expert Evidence Under the Federal Rules: Federal Rules Symposium, 36 La.L.Rev. 123, 124, 126 n. 24 (1975). See 3 J. Wig-more, Evidence §§ 1918, 1920, 1924 (1st ed. 1904). According to La.R.S. 15:463, a lay witness in a criminal case is only allowed to testify as to facts within his knowledge, not as to his impressions or opinions. A more liberal approach to the admission of opinion testimony by lay witnesses is taken in FRE 701 which allows the admission of opinions and inferences which are rationally based on the perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. We have stated that a lay witness may draw natural inferences from facts personally observed by him. State v. Stewart, 357 So.2d 1111, 1115-16 (La.1978); State v. Stripling, 354 So.2d 1297, 1305 (La.1978).

We think the trial judge erred in allowing the detective to give his opinion regarding the reasons he gets anonymous calls. His opinion is not an inference drawn from facts obtained first-hand, neither does his testimony bear on a fact in issue. A generalized opinion on why anonymous tips are made is not relevant to a material issue in this case. However, it does not appear reasonable that the expression of this opinion by the officer would have contributed to the defendant’s conviction.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 10

The defendant challenges the admissibility of the victim’s statement just before he died, “Please don’t let it go down this way.” He contends that the statement is hearsay and does not fall into a recognized exception to the hearsay rule.

However, we believe the victim’s statement is not subject to a hearsay objection since it does not appear to have been admitted to prove the truth of the matter asserted. State v. Martin, 356 So.2d 1370, 1373-74 (La.1978). The statement does not incriminate the defendant, but rather seems to express the victim’s remorse over his unhappy end.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 11

The defendant next contends that the trial court erred in allowing the state to re-emphasize testimony on redirect that was not the subject of cross-examination in violation of La.R.S. 15:281. A state witness on redirect was asked to identify and describe a photograph of the murder scene. The witness had testified about the scene on direct examination, but this was not expressly delved into on cross-examination.

The defendant appears to be technically correct that the redirect exceeded the scope of questioning generally allowed. Under La.R.S. 15:281, the trial judge is given discretion to allow such deviations, but the opposing side is to be given the opportunity to recross on the new matter. The deviation allowed by the trial judge in this case was not an abuse of discretion because it did not contribute to the conviction of the defendant. La.C.Cr.P. art. 921.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 12

Defendant complains that the trial judge erred in allowing a police officer to testify that he was present at the photographic line-up at which one state witness identified the defendant. We find no reversible error in this assignment, however, because the officer never actually testified that the state’s witness had identified the defendant, only that an identification had been made.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. IS

The defendant filed seventeen special jury charges. The trial judge granted the request for five special charges and denied the remainder. The defendant now argues that the trial judge erred in denying charges numbers three, four, and six through thirteen.

Charges three and twelve include defendant’s definition of reasonable doubt and charges four and thirteen contain his definition of the presumption of innocence. The court is not required to define these terms under La.C.Cr.P. art. 804, but did so in its general charge. Thus, the trial court did not err in denying the defendant’s special charges concerning the same.

The defendant requested in special charges six and seven that the jury be instructed regarding the definitions of negligent homicide and criminal negligence. It does not appear that the charges were pertinent, thus the trial court did not err in denying them. La.C.Cr.P. art. 807. No evidence was introduced from which the jury could have inferred that the defendant was guilty of criminal negligence or negligent homicide and not of manslaughter or murder. See State v. Marse, 365 So.2d 1319 (La.1979).

The defendant’s request for special charges numbers eight through eleven (duty of jury to deliberate with view toward reaching a verdict; statements and arguments of counsel not evidence; indictment not evidence; and duty of jury to find facts) were properly denied as included within the trial court’s general charge. La. C.Cr.P. art. 807.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 14

In this last assignment, the defendant lists several grounds for asserting that the trial court erred in denying his motion for a new trial.

He first argues that two essential elements of first degree murder were not proved beyond a reasonable doubt, i. e., that he acted with specific intent to kill or inflict great bodily harm and that the killing was committed during an armed robbery. We believe the record contains ample evidence upon which a rational jury could have found 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).

Secondly, the defendant contends that the state intentionally refused to provide him with an accurate rap-sheet on a state witness. For the reasons discussed under assignments of error numbers two and four, this assignment is without substance.

The defendant next complains that ballistics information was withheld by the state that would have been exculpatory. The defendant does not contend that he requested such information or explain how such would be exculpatory. We find that the defendant has failed to make a substantial showing that the state withheld exculpatory evidence. See State v. Landry, 384 So.2d 786 (La.1980).

Lastly, the defendant alleges that the state made a “deal” with one of its witnesses in exchange for his testimony. The witness denied that any deal existed on cross-examination and the defendant has failed to offer anything more than his own speculation that any deal exists. Thus, we find no error in the denial of defendant’s motion for new trial.

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: MARCUS, Justice.

text:
    Benny RICARD v. STATE of Louisiana.
    No. 67456.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      Dennis R. Whalen, Whalen & Theriot, Baton Rouge, for plaintiff-applicant.
    Sera H. Russell, III, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for defendants-respondents.
   MARCUS, Justice.

This is a suit by Benny Ricard brought pursuant to 42 U.S.C. § 1983 against the State of Louisiana, through the Department of Public Safety, Division of State Police, and Steve Jones, a state police trooper. Plaintiff alleges that he was pistol-whipped by a state trooper after he was apprehended for driving in excess of the speed limit and as a result he suffered lacerations of the head. He further claims that Jones was present at the time but took no action to stop or prevent the pistol-whipping. Plaintiff prayed for actual damages in the amount of $30,100, punitive damages in the sum of $50,000, attorney fees and costs. Defendants filed an exception of no cause or right of action and alternatively a motion for summary judgment directed to that portion of plaintiff’s claim for punitive damages. The trial judge granted defendants’ motion for partial summary judgment and dismissed plaintiff’s claim for punitive damages, reserving to plaintiff the remaining claims asserted in his petition. The court of appeal affirmed. On application of plaintiff, we granted certiorari to review the correctness of that decision.

The narrow issue before us is whether punitive or exemplary damages may be awarded in a suit brought under 42 U.S.C. § 1983 in our state courts. We think not.

42 U.S.C. § 1983, derived from § 1 of the Civil Rights Act of 1871 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Absent congressional intent to vest exclusive jurisdiction of federal claims in federal courts, state courts have concurrent jurisdiction to enforce rights under federal statutes. Since jurisdiction over suits brought under § 1983 has not been restricted to federal courts, an action thereunder may also be maintained in a state court. Rzeznik v. Chief of Police of Southampton, 374 Mass. 475, 373 N.E.2d 1128 (Sup.Jud.Ct.Mass.1978); Brody v. Leamy, 90 Misc.2d 1, 393 N.Y.S.2d 243 (1977); Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977); Clark v. Bond Stores, Inc., 41 A.D.2d 620, 340 N.Y.S.2d 847 (1973); Dudley v. Bell, 50 Mich.App. 678, 213 N.W.2d 805 (1973); Lakewood Homes, Inc. v. Board of Adjustment, 52 Ohio Op.2d 213, 23 Ohio Misc. 211, 258 N.E.2d 470 (1970), aff’d. in part and rev’d. in part, 25 Ohio App.2d 125, 267 N.E.2d 595 (1971). In enacting § 1983, Congress did not address the question of the type of damages which should be awarded when a citizen’s constitutional rights are violated by a state official nor has the United States Supreme Court ever awarded punitive damages for a § 1983 violation. On the other hand, it is clear that our state’s general statutory provision on damages, La. Civ.Code art. 1934, has been judicially construed to imply that punitive or exemplary damages are not allowed in this state. Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978); Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978); Fowler v. Western Union Tel. Co., 357 So.2d 1305 (La.App.3d Cir.), writ denied, 359 So.2d 196 (1978); Fassitt v. United T.V. Rental, Inc., 297 So.2d 283 (La.App. 4th Cir. 1974); Boutte v. Hargrove, 277 So.2d 757 (La.App. 4th Cir.), writ denied, 281 So.2d 744 (1973), affirmed, 290 So.2d 319 (La.1974). See also Baggett v. Richardson, 473 F.2d 863 (5th Cir. 1973); Fagot v. Ciravola, 445 P.Supp. 342 (E.D.La.1978).

In Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the Supreme Court, while recognizing that Congress did not address directly the question of damages in enacting § 1983, stated:

To the extent that Congress intended that awards under § 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages.

435 U.S. at 256-57, 98 S.Ct. at 1048. However, in a footnote following this declaration, the Court noted that several lower courts had awarded punitive damages in § 1983 cases with the specific purpose of deterring or punishing violations of constitutional rights. Plaintiff contends that this footnote expresses approval by the Court of the award of punitive damages in § 1983 controversies. We disagree. In the same footnote, the Court also stated:

Although we imply no approval or disapproval of any of these cases, we note that there is no basis for such an award in this case.

435 U.S. at 257, n. 11, 98 S.Ct. at 1049, n. 11. We consider the statement in the text of the opinion to be a more authoritative expression of the Court regarding the type of damages to be awarded for violations under § 1983.

Plaintiff further argues that in the recent decision of Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Supreme Court approved the award of punitive damages for violations of a citizen’s constitutional rights. Carlson is clearly distinguishable from the instant case. Carlson is a Bivens suit in which plaintiff was requesting relief for violation of his constitutional rights by federal officials under a judicially-created remedy while plaintiff in the instant case brought a § 1983 action for damages for alleged violations by state officials pursuant to a federal statute. Our reading of Carlson brings us to the conclusion that the Supreme Court did not address nor decide the question of whether punitive damages would be awarded in a Bivens suit. 100 S.Ct. at 1473. Moreover, we consider the Court’s statement implying that punitive damages are available in a proper § 1983 action, citing Carey v. Piphus, supra, 435 U.S. at 257, n. 11, 98 S.Ct. at 1049, n. 11, as dicta and neither controlling nor persuasive in our instant decision. We prefer to follow those statements made in the text of the Carey opinion finding compensatory damages to be an adequate remedy for a § 1983 violation.

Moreover, we are of the opinion that an application of our state law is proper in determining the availability of damages for a § 1983 violation when the suit is brought in our state court system; therefore, our statutory provision on damages, La.Civ. Code art. 1934, as judicially construed, requires a denial of punitive or' exemplary damages. Although § 1983 has no remedial provisions, 42 U.S.C. § 1988, a companion to §§ 1983,1985 and 1986, provides that in the areas where federal law is unsuited or deficient in the provisions necessary to furnish suitable remedies or punish offenses against the law, a court must turn to the common law as modified and changed by the constitution and statutes of the forum state, as long as these are not inconsistent with the constitution and laws of the United States. In absence of remedial provisions in § 1983, we should draw upon state substantive law to fashion an appropriate remedy for civil rights violations as long as it is not inconsistent with the constitution and laws of the United States.

In Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), in a § 1983 suit brought in the federal district court in Louisiana, the Supreme Court was confronted with the issue of whether an executor could be substituted when plaintiff died, leaving no surviving parents, wife, children or siblings, or whether the action must be dismissed on the ground of abatement. The Court, relying on § 1988, discerned a deficiency in federal law to the extent that it was silent on the issue of the survival of a § 1983 action. The Court applied state law, finding nothing in the statute or its underlying policies to indicate that a state law causing abatement of a particular action should invariably be ignored in favor of absolute survivorship. The Court noted:

A state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation. ... [§ 1988] quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby.

436 U.S. at 593, 98 S.Ct. at 1997. In Carey, the Court recognized that § 1988 authorizes courts to look at the law of the states where this is necessary to furnish suitable remedies under § 1983. 435 U.S. at 258, n. 13, 98 S.Ct. at 1049, n. 13. And recently in Carlson, the Court noted that contra to a Bivens suit, it would make sense to allow aspects of § 1983 litigation to vary according to the laws of the states under whose authority § 1983 defendants work. 100 S.Ct. at 1475, n. 11. Although § 1988 is directed to federal district courts, it provides, by analogy, even greater justification for a state court to apply state law when the federal cause of action is adjudicated in the state court system. See, e. g., Dudley v. Bell, supra. (Relying upon § 1988, a Michigan state appeals court applied state law on the issue of vicarious liability resulting in the dismissal of a § 1983 action against a sheriff for the acts of his deputies.) Thus, we find that La.Civ.Code art. 1934(3), as judicially construed, is the correct law to be applied in the award of damages in a § 1983 action filed in the state court.

Moreover, we consider that the award of compensatory damages will allow full and complete recovery to an injured party alleging deprivation of civil rights. Our statutory provision on damages has been broadly construed to include such items as physical and mental pain and suffering, loss of wages, permanent disfigurements and disabilities and actual medical and related expenses. La.Civ.Code art. 1934(3); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955); Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir. 1974); Barrols v. Service Drayage Co., 250 So.2d 135 (La.App. 4th Cir. 1971). See also Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979). Thus, there is no need to introduce punitive damages into our state substantive law. Clearly, an award of compensatory damages will serve the same deterrent purpose as an award of punitive damages.

In sum, we conclude, as did the courts below, that punitive or éxemplary damages may not be awarded in a suit brought under 42 U.S.C. § 1983 in our state courts. Hence, the granting of defendants’ partial summary judgment directed to that portion of plaintiff’s claim for punitive damages was correct.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

      . 382 So.2d 190 (La.App. 1st Cir. 1980).

      . 385 So.2d 785 (La. 1980).

      . The Court recognized that § 1988 did not apply to the judicially-created Bivens action and should not by analogy since Bivens defendants are federal officials brought into federal court for violating the federal constitution. No state interests are implicated by applying purely federal law to them. On the other hand, state interests are inherent in a § 1983 suit since it is an action against a state official in a state court for the violation of constitutional rights within the jurisdiction of that court.


author: BLANCHE, Justice. LEMMON, Justice, DIXON, Chief Justice.

text:
    STATE of Louisiana v. Robert Dale STATUM.
    No. 67525.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Dist. Atty., Terry Johnson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    James A. Smith, Smith & Wise, Lake Charles, for defendant-appellant.
   BLANCHE, Justice.

Defendant, Robert Dale Statum, was indicted by a grand jury for manslaughter, R.S. 14:31. The defendant’s motion to suppress all of his oral and written inculpatory statements was tried before Judge Yelver-ton of the 14th Judicial District Court and was denied. The defendant was tried before a twelve person jury and was convicted by a vote of 11 to 1. The defendant was sentenced to seven years in the custody of the Louisiana Department of Corrections.

The facts in this case are deduced from the motion to suppress hearing, the defendant’s two statements, and the transcribed portions of the trial court which were sent to this Court.

On Saturday, July 28, 1979 the victim, Tammy Lonidier, was a passenger in the defendant’s car. Tammy was the sister of the defendant’s wife and was 13 years old at the time of her death. During that day, the defendant had several beers and some wine that night. That evening, he told his wife he wanted to “have sex” with her sister, Tammy, and his wife, though upset, went along with the idea in order to “save her marriage”. Later that night, on the pretext of going to borrow some money, the defendant, his wife, their,two children and Tammy got into the car and drove around the block. Defendant let everyone out of the car and his wife told Tammy to get back in the car with the defendant, who said he wanted to talk with Tammy. Instead of driving around the block, the defendant began driving toward a local skating rink. While the car was going 50 to 55 miles per hour, Tammy opened her door and exited the vehicle. This incident occurred around midnight. She died the next day of multiple injuries suffered from the fall.

After she jumped, defendant returned to his wife and they searched for Tammy without success. They then went to defendant’s sister’s house and from there, to the DeQuincy Police station to obtain assistance in finding Tammy. The police on duty returned to the area, immediately found Tammy, and called an ambulance.

Since the defendant and his wife were so shaken up and had become hysterical, and because their car would not start, one of the officers gave them a ride back to their trailer home. After taking the defendant and his wife home, the DeQuincy Police got a call from the Lake Charles Sheriff’s Office to bring the defendant and his wife in for questioning as to the incident. The police went to the defendant’s trailer that morning and asked the defendant and his wife to come in to Lake Charles with them, which they agreed to do.

At the Lake Charles Sheriff’s Office, the defendant and his wife were separately interrogated. The defendant made a written statement which, in essence, said his wife had been in the car with him and Tammy, that he and his wife had been arguing, and that Tammy had jumped out of the moving car. No mention was made of the defendant’s desire to have sex with Tammy nor the scheme which he and his wife developed toward this goal. The defendant and his wife were then returned by the police to their trailer around dawn.

That Sunday morning, Deputy Albanese came on duty at the Lake Charles Sheriff’s Office. After receiving a call from Sheriff Reid and himself wondering about the incident, he dispatched a deputy to go to the defendant’s trailer to ask the defendant and his wife to come back in for further questioning. This was done, and the defendant and his wife drove in on their own at 1:00 p. m. on Sunday, July 29, 1979. Again, they were questioned separately. The defendant made a second written statement where he told the true story of his desire to have sex with Tammy, and how they were alone when she exited his car at 50 to 55 miles per hour. Defendant admitted lying at the first written statement, saying he did so because he didn’t think anyone would believe him.

At each interrogation session, the defendant was advised of his constitutional rights and he signed a written waiver. The police clearly testified that neither the defendant nor his wife were under arrest, nor did they have probable cause to arrest them, when the statements were made. The police said they were merely investigating the incident and were seeking the defendant’s and his wife’s assistance. The two statements made by defendant constituted the bulk of the case against him.

Defendant makes two assignments of error. This Court at oral argument asked for and received from the defense and from the state supplemental briefs on a third issue.

Assignment of Error Number 1

Defendant contends the trial court erred in overruling his motion to suppress all oral and written inculpatory statements made by him, as such statements were made at a time when the defendant was under arrest without probable cause in violation of the Fourth Amendment of the United States Constitution.

The state admits the defendant was not arrested until approximately 8:00 p. m. on July 29, 1979 after he had made the second statement. It is the state’s position that the defendant and his wife were requested to come to the Lake Charles Sheriff’s Office for the first statement to give the initial information about the incident. At that time the police did not know the cause of the incident; some were even terming it a suicide. The defendant and his wife were requested to come in for the second statement when Deputy Albanese, the Chief of Special Investigations, had a suspicion about the ease and had been called by Sheriff Reid to look into the matter.

The state contends that both of the statements were taken as part of the overall investigation and that the defendant was not under arrest at any time until after the second statement revealed his involvement. Several deputies testified the defendant was not forced to go make the statements and, once there, he was free to leave any time he wished.

The defendant argues that when he was taken by the police from his trailer to Lake Charles in the early morning hours following the incident that he was, in fact, arrested without probable cause. The resulting first statement should be suppressed for this reason. He then says he was, in fact, ordered to drive into Lake Charles to make the second statement and, in effect, was again placed under arrest without probable cause. He feels that the resulting second statement should be suppressed for this reason, and because of the taint from the first arrest. Additionally, the defendant’s wife testified she felt they were under arrest because of the presence of the police with uniforms and guns (though not drawn) at their trailer, and the fact that the police interrogated her and her husband separately and wouldn’t let her join her husband until her statement was complete. She said they drove back to the Sheriff’s Office at 1:00 p. m. that Sunday to make the second statement because they were ordered to do so and felt they had to comply as if they were arrested.

The issue squarely is was the defendant arrested without probable cause such that his statements should have been suppressed? Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We find that he was not under arrest when he made either of these statements; rather, he was voluntarily assisting in the investigation into Tammy’s death. Even if his presence in the Lake Charles Sheriff’s Office is regarded as a detention for custodial interrogation, we deem it was based on his consent. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

The sequence of events leading up to each statement affirms this finding. Immediately after the incident, the defendant, his wife and sister went to the DeQuincy Police station to obtain assistance in finding Tammy. They initiated the police involvement. Once Tammy was found, the police drove defendant and his wife home because they were hysterical. It was obvious they weren’t going to be of any assistance at that time in ascertaining what had happened.

Later, the Lake Charles Sheriff’s Office asked the DeQuincy Police to bring the defendant and his wife in for questioning. By now, the defendant and his wife had had time to compose themselves and to let the authorities know what had happened since they were a part of the incident and had initiated the police involvement.

The officers picked up the defendant and his wife in the early morning for the trip to Lake Charles. There was no arrest, were no drawn guns, no handcuffs, no threats-nothing was used to force the defendant and his wife to go to Lake Charles. The defendant and his wife voluntarily went to Lake Charles, made their statements (his was false), and were driven home by the police. At no time were they taken into custody by the police or restrained by the police, as it was testified by several deputies that they were free to go as they pleased. C.Cr.P. art. 201.

Later that morning, the defendant and his wife were requested to come back to the Lake Charles Sheriff’s Office by 1:00 p. m. This they did of their own accord, as they drove the 30 miles in their vehicle without any police involvement other than the initial request. They consented freely to drive to the Sheriff’s Office and were not under anyone’s custody or restraint. C.Cr.P. art. 201.

The defendant was not arrested when he freely left his trailer with the police in the early morning to provide information to an investigation that he initiated. He made his statement and was brought back by the police to his trailer. Again, he was not arrested when he voluntarily drove in to make a second statement to the police, who were further investigating the incident. Only when the defendant’s first statement was exposed as a lie was his liberty restrained, as then, the police had probable cause to arrest him.

For the above reasons, this assignment of error is without merit.

Assignment of Error Number 2

Defendant contends the trial court erred in refusing to grant defendant’s motion for mistrial after the state used evidence which it had denied was in its possession, and denied it had any intention of using at trial.

Pursuant to C.Cr.P. art. 718, the defendant filed a Motion for Discovery and Inspection on August 30,1979, which requested in part that the state:

“. .. be ordered to permit and authorize the defendant to inspect photographs and tangible objects which are in the possession, custody or control of the state, and which are intended for use by the state as evidence at the trial.”

The state answered using a standard form and in the portion that pertained to defendant’s above request, the state answered “no”, which meant it had no photos or tangible objects to be used at trial. Additionally, the state gave the defendant an authorization to inspect all photos and objects at the Sheriff’s Office.

At trial, during the direct examination of Deputy Viator, the Department’s Criminal Investigator, the state offered in evidence photos (exhibits S-8 through S — 17) taken by that officer the morning after the incident. At that time, the defense counsel objected to their introduction on the basis of lack of relevancy and the state’s failure to lay a proper foundation. The court overruled the objection and admitted the photographs. No defense objection was made based on the state’s failure to properly answer defendant’s discovery motion.

Deputy Viator then described each photograph and the location and time it was taken. He said that Exhibit S-12 was a photo of the front, driver’s side floorboard of the defendant’s vehicle, and that the picture revealed a knife and a wallet on the floorboard just under the front seat. He further testified that he retrieved these items from the vehicle and had brought them to court that day. Defense counsel again objected and moved for a mistrial, solely on the basis of the lack of a proper foundation having been laid. The jury was removed and defense counsel also objected to the introduction of the knife on the same ground. The judge overruled the objections and the jury was returned.

Next the state displayed a large manila envelope, Exhibit S-18, which Deputy Via-tor explained contained the knife and wallet he had retrieved from the defendant’s vehicle. Defense counsel repeated his improper foundation objection and finally added that the state had denied the existence of any photographs or tangible evidence in its answers to the defendant’s discovery motion. The jury was again removed.

The trial court ruled that due to the state’s failure to advise the defendant of the existence of the knife in response to defendant’s discovery motion, it would not be admitted in evidence. However, since the defendant had not objected on this proper ground when the photos were admitted, he let them stand. Noting the potential prejudice of the knife and the state’s failure to comply with the discovery rules, the judge ruled that no further reference was to be made to the knife by this witness, either attorney, or either side in its closing arguments.

We have previously held that where the defendant is lulled into a misapprehension of the strength of the state’s case and suffers prejudice when the statements are subsequently introduced at trial, basic unfairness which constitutes reversible error results. State v. Boothe, 310 So.2d 826 (La.1975); State v. Hatter, 350 So.2d 149 (La.1977). Now, we stand fast to that principle that the state should not be allowed to deceive the defendant by its discovery answers; however, we feel the trial judge properly resolved the situation by his order. According to C.Cr.P. art. 729.5, in pertinent part:

“... during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal as may be appropriate.”

Here, the judge promptly prohibited the state from introducing the knife in evidence and, further, did not allow the parties to refer to it in any manner.

Additionally, it is noted that the assistant district attorney conducting the trial did not complete the discovery answer, and the district attorney’s office had attached an authorization for the defendant to examine photographs and items at the Sheriff’s Office, clearly showing no intent to deceive the defendant. Furthermore, the judge commented that the photograph admitted was so nondescript that it took him 60 seconds to locate the knife in the photo, and he knew what he was looking for. None of these factors alone excuse the state from properly answering the defendant’s discovery motion, but when added to the judge’s prompt action, we are of the opinion that the defendant suffered no prejudice and that the trial judge was correct in continuing the trial.

We certainly do not condone the trickery that can evolve from the misuse of the discovery motions and answers. The penalties of C.Cr.P. art. 729.5 are readily at hand for the trial judge to employ, as was done in this case. If they are not used, and the situation warrants, this Court will not hesitate to reverse. Such is not the situation here and, for these reasons, this assignment is without merit.

Assignment of Error Number 3

At oral argument on October 14, 1980, this Court asked the state and the defendant to file supplemental briefs on the issue of whether all the elements of manslaughter were met in this occurrence. We find that they were.

The pertinent part of R.S. 14:31 states:

“Manslaughter is: ... (2) A homicide committed, without any intent to cause death or great bodily harm, (a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person ...”

The felony which the defendant was attempting to perpetrate was R.S. 14:80, Carnal Knowledge of a Juvenile.

By the defendant’s own statement, he and his wife scheme so that he could get Tammy alone and have sex with her. The defendant, a 31 year old male, had this in mind when he drove Tammy, a 13 year old female, toward the skating rink, and she exited the car obviously because of this attempt.

The defendant did not succeed in his intention, for Tammy exited the car before the defendant reached his destination; therefore, he was guilty of Attempt, as defined in R.S. 14:27:

“A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”

The defendant had this juvenile female in the car alone with him and, by his own admission, was going to have sex with her. Clearly, he is guilty of Attempted Carnal Knowledge of a Juvenile. Since this crime is a felony not enumerated in R.S. 14:30 or R.S. 14:30.1, it squarely falls within R.S. 14:31(2)(a) as quoted above.

For this reason, the defendant is guilty of Manslaughter as all the elements of the crime were satisfied.

The defendant’s two assignments of error and this Court’s question are all resolved against the defendant for the reasons given above. The defendant’s conviction and sentence are affirmed.

AFFIRMED.

DIXON, C. J., dissents with reasons.

DENNIS, J., dissents for reasons assigned by DIXON, C. J.

WATSON, J., dissents on the basis of assignment of Error # 3.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

The only rational explanation for the victim’s jumping from a vehicle traveling at 55 miles per hour was to avoid an immediate sexual assault (which defendant admitted he intended). In the light of the evidence most favorable to the prosecution (defendant’s own statement), a rational trier of fact would find beyond a reasonable doubt that defendant did some act in furtherance of his admitted intention and caused the victim’s jump. Thus, this was a homicide which occurred when defendant was at least engaged in the attempted perpetuation of an intentional misdemeanor directly affecting the person, and the jury properly found defendant guilty of manslaughter. R.S. 14:31(2)(a) and 14:36 and 37.

DIXON, Chief Justice.

I respectfully dissent, finding no evidence of a homicide nor of an attempted felony.

      . For a factually similar case with an interesting discussion of this problem, see Patterson v. State, 181 Ga. 698, 184 S.E. 309 (1936).


author: LANDRY, Justice ad hoc.

text:
    Preston DAVIS v. A COPELAND ENTERPRISES, INC. and Liberty Mutual Insurance Company et al.
    No. 67598.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      Patrick M. Reily, New Orleans, for plaintiff-applicant.
    Donald O. Collins, Jones, Walker, Waeeh-ter, Poitevent, Carrere & Denegre, New Orleans, for defendants-respondents.
   LANDRY, Justice ad hoc.

On application of Plaintiff, Preston Davis, an employee of Refrigeration Equipment Company (Refrigeration), writs were granted herein to review the judgment of the trial and appellate court dismissing plaintiff’s tort action against defendant, A Copeland Enterprises, Inc. (Copeland) and Copeland’s insurer Liberty Mutual Insurance Company (Liberty). Plaintiff sues for injuries sustained accidentally while performing repairs to the refrigeration system of a cold storage warehouse leased by Copeland from Robert F. Morrow. The trial court sustained Copeland’s motion for summary judgment and the appellate court affirmed. We reverse.

In June, 1975, while acting during the course and within the scope of his employment by Refrigeration, plaintiff was recharging the ammonia refrigeration system in the warehouse Copeland had under lease from Morrow. While so engaged a hex bushing broke. Plaintiff was sprayed with ammonia and suffered serious burns. In August, 1975, plaintiff brought suit against Copeland, Liberty, Morrow and Morrow’s insurer seeking recovery for his injuries.

In September, 1978, Copeland and Liberty filed a motion for summary judgment dismissing the action as to them on the ground that Copeland is a principal or statutory employer of plaintiff pursuant to LSA-R.S. 23:1032 and LSA-R.S. 23:1061 and as such liable to plaintiff for Workmen’s Compensation Benefits only.

The motion for summary judgment is predicated on the ground that Copeland operates cold storage warehouses as part of its business as owner and franchisor of the enterprise known as Popeye’s Fried Chicken. An integral part of the business is said to be furnishing food products to franchisee’s as well as Copeland’s wholly owned corporate outlets. It is further contended that in furnishing such products Copeland must maintain cold storage warehouses and the refrigeration machinery and equipment required in the operation of such facilities, which maintenance is regularly and customarily contracted to third parties.

The motion for summary judgment was supported by affidavit of D. M. Kimball. The affidavit, dated August 31, 1978, recites:

“He is the Vice President of Purchasing of A. Copeland, Inc., and he is well and truly familiar with its business operations. He is aware of the fact that A. Copeland Enterprise, Inc., did lease a warehouse at 3601 Lousaps Street, Me-tairie, Louisiana, from Robert F. Morrow and did secure the services of Weston G. Strauch to service the ammonia refrigeration system located therein. That A. Copeland Enterprises, Inc., in its business as a franchisor of fast food restaurants, a/k/a Popeye’s Fried Chicken (sic) and must specifically maintain refrigeration equipment in warehouses sufficient to store the necessary food items required to supply its own corporately owned stores, as well as those owned by franchiseee (sic). That in the operation of A. Copeland Enterprises, Inc’s business it is the normal and usual thing to contract with an outside contractor to perform the necessary maintenance and repair work on the refrigeration equipment used by it in its warehouse operations.”

Plaintiff did not offer a counter affidavit. The record however contains a copy of Morrow’s lease to Copeland which Morrow attached to his answer to interrogatories propounded by plaintiff. The record also contains Morrow’s affidavit in support of his motion for summary judgment. Morrow’s affidavit recites that at no time prior to the accident was he informed of any defect in the refrigeration equipment; that he never personally or for his own account activated or operated the refrigeration equipment in question; and that he had leased the premises to Copeland as evidenced by the attached lease agreement.

Copeland’s lease is for a period of one year commencing June 15, 1975, with renewal privileges. The accident occurred June 19, 1975. The lease recites that the subject premises are leased for use as a cold storage warehouse. Copeland as lessee is obligated to maintain and repair all elevators, lifts and machinery on the premises and carry stipulated insurance coverage. The lease recites that Copeland inspected the premises prior to signing and is satisfied with the condition of the premises including the refrigeration equipment and machinery.

As authorized by LSA-R.S. 9:3221, the lease states:

“Lessee assumes responsibility for the condition of the premises and Lessor will not be responsible for damage caused by leaks in the roof, by bursting pipes, by freezing or otherwise, or by any vices or defects of the leased property, or consequences there of, except in the case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from Lessee of such defects and the damage caused thereby. Should Lessee fail to promptly so notify Lessor in writing of any such defects, Lessee will become responsible for any damage resulting to Lessor or other parties.”

The foregoing lease provision effectively releases Morrow, as owner of the leased premises, from legal liability for the condition of the premises and from liability for injuries caused by defects therein to the lessee Copeland or anyone on the premises who derives from Copeland his right to be thereon, unless Morrow knew or should have known of the defect or had received notice thereof and failed to remedy the defect within a reasonable time.

On October 13, 1978, the trial court rejected Copeland’s motion for summary judgment. The case was transferred to another division of the trial court and on April 10,1979, Copeland again moved for summary judgment on the strength of Kimball’s affidavit of August 31, 1978. The trial court granted the motion. On appeal, a three judge panel, with one judge dissenting, affirmed.

Plaintiff concedes that pursuant to LSA-R.S. 23:1032 and 1061, Copeland must be deemed a principal or statutory employer if Copeland was in fact engaged in maintaining cold storage warehouses as part of its business at the time of subject accident and Copeland contracted for such maintenance as a usual and. normal part of its business venture.

Plaintiff argues, however, that whereas his rights are limited to recovery of compensation benefits against a principal or statutory employer, LSA-R.S. 23:1101 reserves his right to recover from a third party responsible for his injuries. This third party liability, according to plaintiff is not limited to actions in tort but includes any legal liability of such a third party, even the strict liability or liability without fault imposed by LSA-C.C. Articles 670 and 2322 upon an owner for the things under his control or the condition of his premises.

It is plaintiff’s contention that in assuming the strict liability imposed by Articles 670 and 2322, above, Copeland in effect appears in a dual capacity. The first is that of principal or statutory employer if Copeland does in fact meet the test of LSA-R.S. 23:1061. Copeland’s alleged second capacity is that of one who has contractually assumed the strict liability of a third party otherwise liable for plaintiff’s injuries but released therefrom because of Copeland’s assumption thereof. Plaintiff argues that Copeland and Morrow cannot contract to defeat or negate Morrow’s liability to plaintiff, at least not without Copeland becoming liable in Morrow’s stead. Any other result, according to plaintiff would effect an unconscionable and unconstitutional deprivation of plaintiff’s rights against Morrow pursuant to LSA-C.C. Articles 670 and 2322, above. Therefore, according to plaintiff, summary judgment may not lie herein because plaintiff, in effect, has a claim against Copeland who stands in Morrow’s place.

A motion for summary judgment may be granted only when the pleadings, depositions on file, answers to interrogatories and affidavits, if any, show the absence of dispute as to a genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. Article 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

In a summary judgment proceeding the burden of showing absence of dispute as to a genuine issue of material fact and that mover is entitled to judgment as a matter of law, is incumbent upon mover. Any doubt concerning whether or not summary judgment should be granted must be resolved against mover and in favor of trial on the merits. Chaisson v. Domingue, above.

Plaintiff contends that Copeland’s affidavit is defective as to form in that it is not made on personal knowledge and merely states that Kimball is “aware” of certain facts. Plaintiff also contends the affidavit is substantively deficient in that it was made three years after the accident and fails to allege Kimball’s connection with Copeland in 1975, if any, and also fails to specifically allege the nature of Copeland’s business when the accident occurred.

Copeland stresses plaintiff’s failure to file a counter affidavit and cites LSA-C.C.P. Article 967 in support of the rule that when a motion for summary judgment is supported by affidavit the adverse party may not rely on the pleadings and denials therein but must respond by counter affidavit.

Copeland also argues that absent a motion to strike, the fact that an affidavit is not made on personal knowledge is a formal defect deemed waived. Barnes v. Sun Oil Company, 362 So.2d 761 (La.1978). We agree but, nevertheless a motion for summary judgment may be granted only when the pleadings, affidavits and interrogatories show absence of a dispute as to a genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. Article 966, above.

Copeland maintains that as a matter of law it may not be held liable to plaintiff under its assumption of Morrow’s ownership liability. It is suggested that Morrow is in the business of leasing warehouses and repairing and maintaining equipment therein. Consequently, Morrow’s liability to plaintiff, if any, would be that of principal or statutory employer.

We deem Kimball’s affidavit inadequate in that it does not specify with certainty either the nature of Kimball’s connection with Copeland at the time of the accident or the precise nature of Copeland’s business at that crucial time. It does not sufficiently reflect facts which would constitute Copeland as a principal or statutory employer at the time of the accident.

Additionally, this case poses the novel, intricate and unresolved issue of whether the limitative effects of LSA-R.S. 23:1032 and 1061 shields a statutory employer or principal from contractually assumed liability of a third party otherwise strictly liable to an injured employee. We believe this issue to be of far reaching consequences; so much so that it should be decided only upon a full hearing. We, of course, express no opinion at this time as to how the issue should be resolved.

We find no merit in Copeland’s claim that plaintiff is limited to recovery of workmen’s compensation benefits from Morrow because Morrow’s business is leasing warehouses and maintaining and repairing equipment therein. The record falls far short of showing this to be an undisputed fact. We note, only in passing that Morrow’s affidavit appears to refute this position.

The judgment of the trial court and court of appeal are reversed and set aside, the motion for summary judgment is denied and dismissed and this matter remanded to the trial court for further proceedings consistent with the views herein expressed; all costs incident to this writ to be paid by Copeland and Liberty.

Reversed and remanded.

DIXON, C. J., and MARCUS, J., concur.

      . LSA-C.C. Article 670. Keeping buildings in repair.
      Everyone is bound to keep his buildings in repair, so that neither their fall, nor that of any of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.

      . LSA-C.C. Article 2322. Damage caused by ruin of building.
      The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.


author: PER CURIAM.

text:
    STATE of Louisiana v. Levi Matthew JOHNSON.
    No. 67364.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Wiley Dial, Asst. Dist. Attys., for plaintiff-appellee.
    Frank J. Saia, Baton Rouge, for defendant-appellant.
   PER CURIAM.

This appeal follows the revocation of defendant’s probation and involves the authority of a trial court to suspend the imposition as well as execution of sentence in felony and misdemeanor cases. La.C.Cr.P. Arts. 893 and 894. On January 31, 1977, defendant entered pleas of guilty to unrelated charges of unauthorized use of a movable, R.S. 14:68, a misdemeanor, and simple burglary, La.R.S. 14:62, a felony offense. On May 3, 1977, the trial court suspended the imposition of sentence in both cases and placed defendant in each case on active probation for a period of five years under similar conditions: that defendant not commit another crime of theft or violence. On February 4, 1980, the trial court revoked defendant’s probation on the basis of a recent conviction for armed robbery. La. R.S. 14:64. Accordingly, the trial court sentenced defendant to six months’ imprisonment in the parish jail for the offense of unauthorized use of a movable, and nine years at hard labor for the simple burglary charge, maximum terms for the offenses at that time. The trial court ran these sentences consecutively with each other, and with any other sentence imposed. Defendant has now appealed his convictions and sentences to this Court, urging a single assignment of error filed below, a challenge to the penalties imposed as excessive. We agree with counsel that defendant’s total sentence is excessive, but only to the extent that the trial court could not, some three years after deferring the proceedings, impose any sentence on the misdemeanor conviction.

The trial court sought to suspend the imposition of sentence for the offense of unauthorized use of a movable under authority of La.C.Cr.P. Art. 894(A). That article provides in pertinent part:

“When a defendant has been convicted of a misdemeanor, except criminal neglect of family, the court may suspend the imposition or the execution of the whole, or any part of the sentence imposed and place the defendant on unsupervised probation upon such conditions as the court may fix, where suspension is not prohibited under the law. Such suspension of sentence and probation shall be for a period of one year or such shorter period as the court may specify.” [Emphasis supplied].

Although lawful in a felony case such as simply burglary, La.C.Cr.P. Art. 893, the five-year probationary period imposed by the trial court for the misdemean- or offense exceeded its authority under Art. 894(A). In addition, defendant’s revocation in February, 1980, clearly did not take place within the one-year limit established by Art. 894(A). As the maximum lawful period of probation had run before defendant’s revocation, the trial court lacked any basis for imposing sentence on the misdemeanor offense. Cf. La.C.Cr.P. Art. 898.

Accordingly, we affirm defendant’s convictions and his sentence to nine years’ imprisonment at hard labor for the simple burglary offense. The sentence for the unauthorized use of a movable, however, is vacated and set aside.

       We have held that a defendant has no right of appeal from the revocation of probation. State v. Manuel 349 So.2d 882 (La. 1977). In this case, however, the trial court did not impose the sentences challenged here until after it revoked defendant’s probation. In addition, defendant does not dispute the merits of the underlying revocation proceeding. For these reasons, we have therefore treated defendant’s complaint here as an appeal rather than an application for supervisory writs.


text:
    STATE of Louisiana ex rel. Eldridge WILLIAMS v. Warden BLACKBURN, Louisiana State Penitentiary.
    No. 67095.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Eldridge Williams, applying for writ of mandamus. Parish of Orleans. No. 269-352.

Denied. Moot.