text:
    STATE of Louisiana ex rel. Herman WILLIAM v. Harry CONNICK, District Attorney & James Parson, Chief of Police.
    No. 80-KH-1630.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Herman William, applying for writ of mandamus. Parish of Orleans. No. 248-251.

Writ denied. Relator should apply first in the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Joseph ALPINE v. CRIMINAL DISTRICT COURT, SECTION C.
    No. 80-KH-1673.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Joseph Alpine, applying for remedial writ. Parish of Orleans. No. 266-289.

Denied. Appeal pending.


text:
    STATE of Louisiana v. Simon P. BARTMESS.
    No. 80-K-2444.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Simon P. Bartmess, applying for writs of certiorari and review. Parish of Catahoula. No. 80-884.

Writ denied. Adequate remedy be appeal.


text:
    STATE of Louisiana ex rel. Jimmy PUCKETT v. Judge Jerome WINSBERG, Orleans Criminal District Court.
    No. 80-KH-2633.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Jimmy Puckett, applying for writ of mandamus. Parish of Orleans. No. 263-663.

Writ denied. Application is moot. District Court has acted.


text:
    STATE of Louisiana v. Ronald Wade ENGLE.
    No. 80-K-2649.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Ronald Wade Engle, applying for writ of certiorari. Parish of Webster. No. 47785.

Denied.

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


text:
    STATE of Louisiana ex rel. Edward FURLOW v. Mr. Hayden DEES, Warden, Dixon Correctional Institute, State of Louisiana.
    No. 80-K-2694.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Edward Furlow, applying for writ of certiorari. Parish of Tangipahoa. No. 43054.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Mohammad Reza SALIMY.
    No. 80-K-2713.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Mohammad Reza Salimy, applying for writs of certiorari, prohibition, mandamus and supervisory writs. Parish of East Baton Rouge. No. 2-80-398.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Robert JACKSON.
    No. 80-K-2729.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Robert Jackson, applying for writ of certiorari, and remedial relief. Parish of Orleans. No. 272-897.

Writ denied.


text:
    STATE of Louisiana ex rel. Steven K. SMITH v. STATE of Louisiana.
    No. 80-KH-2747.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Steven K. Smith, applying for remedial writs. Parish of Terrebonne.

Denied. Relator must apply first to district court.


text:
    STATE of Louisiana ex rel. Lawrence C. JENKINS v. ORLEANS INDIGENT DEFENDANT PROGRAM.
    No. 80-KH-2749.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Lawrence C. Jenkins, applying for remedial writ. Parish of Orleans. No. 270-438.

Writ denied — O.I.D.P. counsel advised that he has furnished relator the transcript.


text:
    STATE of Louisiana ex rel. Henry ANDERSON v. CRIMINAL DISTRICT COURT, SECTION C et al.
    No. 80-KH-2769.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Henry Anderson, applying for writ of mandamus. Parish of Orleans. No. 260-387.

Denied. Moot.


text:
    STATE of Louisiana v. Donna DUNN.
    No. 80-K-2792.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 277-242, Sect. B.

Denied. The district attorney has available to him the action for declaratory judgment in the civil court.

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


text:
    Bruce J. TRAHAN v. The CITY OF NEW ORLEANS.
    No. 80-C-2802.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Bruce J. Trahan, applying for supervisory writs, Civil District Court. Parish of Orleans. No. 80-10286, Div. D.

Denied.

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


text:
    STATE of Louisiana v. Joyce B. STEPHENS.
    No. 80-K-2808.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Joyce B. Stephens, applying for writs of review. Parish of Ouachita. No. 44460.

Denied.


text:
    STATE of Louisiana ex rel. Louis Joseph CHANSON v. Judge Frank A. MARULLO, Orleans Parish Criminal District Court.
    No. 80-KH-2813.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Louis Joseph Chanson, applying for writ of mandamus or prohibition. Parish of Orleans. No. 269-012.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Travis HALL v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and Louisiana Department of Corrections.
    No. 80-KH-2825.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Travis Hall, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 2-80-644.

Denied.


text:
    STATE of Louisiana ex rel. Eddie Lee JOHNSON v. Judge Oliver P. SCHULINGKAMP, Orleans Criminal District Court.
    No. 80-KH-2858.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Eddie Lee Johnson, applying for remedial writs. Parish of Orleans. No. 263-814.

Writ denied.


text:
    Bennie ST. ROUMAIN STOUT v. Percy J. BUECHE & Madeline Brashear Bueche.
    No. 80-C-2863.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Bennie St. Roumain Stout, applying for remedial writs, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13663.

Denied.

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


text:
    STATE of Louisiana v. Michael Ralph MONTGOMERY.
    No. 80-K-2882.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Michael Ralph Montgomery, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. No. 115683.

Denied. Adequate by review in case of conviction.


text:
    STATE of Louisiana v. Phillip L. MACHADO.
    No. 80-K-2930.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Phillip L. Machado, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of St. Bernard. No. 57-674.

Denied. Adequate remedy by appeal.


text:
    STATE of Louisiana v. Victor WILLIAMS.
    No. 80-K-2932.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 276-212.

Denied. The District Attorney may seek a declaratory judgment in civil court.

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


text:
    STATE of Louisiana ex rel. Ronald J. DOUCET v. STATE of Louisiana.
    No. 80-KH-2939.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Ronald J. Doucet, applying for remedial writs. Parish of Evangeline.

Denied.


text:
    STATE of Louisiana v. Van R. EDWARDS.
    No. 80-K-2941.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Van R. Edwards, applying for remedial writs and stay order. Parish of La-Salle. No. 22000.

Denied.


text:
    STATE of Louisiana v. Randall C. TOBIN.
    No. 80-O-2868.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Randall C. Tobin, on motion to remand. Parish of Jefferson. No. 79-1440.

The motion to remand is granted, and the case is remanded to the district court for a hearing on the motion for a new trial.

MARCUS and BLANCHE, JJ., dissent.


text:
    JOHN JAY ESTHETIC SALON, INC. v. Frances WOODS and Neubie Culver.
    No. 80-C-2842.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Frances Woods and Neubie Culver, applying for writ of certiorari, prohibition, and mandamus, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 12123.

Denied.

LEMMON, J., recused.


text:
    Hugh R. LEE v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES.
    No. 80-C-2844.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Hugh R. Lee, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 391 So.2d 37.

Denied.

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


text:
    Timothy GAINES, Jr. v. James PHILLS, Jr. d/b/a Phills Construction Company.
    No. 80-C-2805.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re James Phills, Jr., d/b/a Phills Construction Company, applying for writs of certiorari and review, to the Court of Appeal, Second Circuit. Parish of Caddo. 389 So.2d 445.

Writ denied.

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


text:
    Jerry McINTOSH v. MONROE MUNICIPAL FIRE and POLICE CIVIL SERVICE BOARD.
    No. 80-C-2772.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Jerry McIntosh, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachi-ta. 389 So.2d 410.

Denied.

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


text:
    Danny LeGRAND v. The STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS and its Successor, the Department of Transportation and Development.
    No. 80-C-2774.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Danny LeGrand, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bossier. 390 So.2d 957.

Denied.


text:
    STATE of Louisiana ex rel. Robert E. PAUL v. STATE of Louisiana.
    No. 80-KH-1946.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Robert E. Paul, applying for remedial writs. Parish of Terrebonne. No. 86622.

Writ denied.


text:
    STATE of Louisiana ex rel. James WILLIAMS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2228.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re James Williams, applying for writ of mandamus. Orleans Parish. No. 251-470.

Denied. Moot.


text:
    Chalin O. PEREZ v. Mary Ellen Sheehan, wife of Chalin O. PEREZ.
    No. 80-O-2799.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re Mary Ellen Sheehan, wife of Chalin 0. Perez, applying for application for appointment of a Judge Ad Hoc pursuant to Article 158 of the Louisiana Code of Civil Procedure, to the 25th Judicial District Court, for the Parish of Placquemines. No. 17-426.

Denied.


text:
    STATE of Louisiana ex rel. Isaac BRAZIEL v. STATE of Louisiana.
    No. 80-KH-1935.
    Supreme Court of Louisiana.
    Jan. 16, 1981.
   In re Isaac Braziel, applying for remedial writs. Parish of Orleans. No. 256-058.

Granted. The trial court is ordered to fix a new return date in this matter 60 days from date of this order. In this regard the transcript shall be furnished at least 15 days prior to the return date. See, C.Cr.P. Art. 919 as amended by Acts 1980, no. 537.


text:
    Eunice Breaux PEOPLES v. Eula Breaux GUIDRY.
    No. 81-C-0018.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
   In re Eula Breaux Guidry, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Writ of mandamus, and prohibition. Parish of Vermillion. 391 So.2d 596.

Not considered. Application not timely filed. La.Sup.Ct.Rules, Rule 10, § 4(b).


text:
    STATE of Louisiana v. Stanley C. BRADLEY.
    No. 81-K-0229.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Stanley C. Bradley, applying for writs of certiorari, prohibition, mandamus, and for a stay order. Caddo Parish. No. 116645.

Writ granted. The trial judge is ordered to conduct a hearing to determine if the children have sufficient understanding to be witnesses. See R.S. 15:461, 469. La.C. Cr.P. Art. 442.

DIXON, C. J., and MARCUS, J., dissent.


text:
    STATE of Louisiana THROUGH the DEPARTMENT OF HIGHWAYS v. CENTURIES MEMORIAL PARK ASSOCIATION, INC.
    No. 81-C-0061.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Centuries Memorial Park Association, Inc., applying for writ of certiorari, or review, to the Court of Appeals, Second Circuit. Parish of Caddo. No. 223-867.

Denied.

DENNIS, J., would grant the writ.

DIXON, C. J., is recused, having signed the order of expropriation. C.C.P. 151(3).


text:
    STATE of Louisiana v. Richard Glen NAAS.
    No. 81-K-0053.
    Supreme Court of Louisiana.
    Feb. 6, 1981.
   In re Richard Glen Naas, applying for writ of certiorari. Parish of Ouachita. No. 39666.

Writ denied. See Code of Cr. Procedure art. 465(A)(11) and 465(B).


text:
    STATE of Louisiana v. David WILLIAMS.
    No. 80-K-2840.
    Supreme Court of Louisiana.
    Jan. 9, 1981.
   In re State of Louisiana, applying for writ of certiorari. Parish of Orleans. No. 276-576.

Granted.


author: LOTTINGER, Judge.

text:
    Robert RODRIGUEZ v. ILLINOIS CENTRAL GULF RAILROAD COMPANY.
    No. 13953.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.
    L. B. Ponder, Jr., Amite, for plaintiff.
    David S. Kelly, New Orleans, for Illinois Cent. Gulf R. R. Co.
    Ben W. Lightfoot, Baton Rouge, for International Paper Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This truck-train collision suit was brought by Robert Rodriguez against Illinois Central Gulf Railroad Company (ICG) for $5,750.00 in damages incurred when the defendant’s train struck a log truck driven by the plaintiff’s employee. ICG filed a third party demand against International Paper Company seeking attorney’s fees and indemnity or contribution under the terms of a 1972 trackage agreement between the paper company and the railroad. From a trial court judgment holding the railroad liable for $4,500.00 in damages and dismissing the railroad’s claim against the paper company, ICG perfected this suspensive appeal.

Though requested to do so by ICG, the trial court gave no written reasons for its judgment. The primary issue on the principal demand on appeal is whether the trial court erred in concluding that ICG’s negligence was solely responsible for the plaintiff’s damage. ICG also contends that the trial court erred in failing to award indemnity and attorney’s fees against the paper company.

On June 1,1977, at a private grade crossing located at the International Paper Company wood yard near Roseland, Louisiana, a tractor-trailer log truck driven by Leroy Stevenson, employee of plaintiff, was westbound attempting to exit the paper company wood yard. The weather was clear, the sun was shining and the temperature was hot. The ICG train was heading south on the southbound mainline track, one of four railroad tracks in the immediate vicinity of the paper company wood yard. The southbound mainline track is the westernmost of the four tracks. Paralleling it to the east is the northbound mainline track, an eastern siding track and the International Paper Company spur track. Heading west, Stevenson had crossed the other three tracks before crossing the southbound mainline track. Stevenson apparently did not see or hear the train, which was traveling at about 40 to 45 miles per hour. He pulled out onto the southbound track and his trailer was struck by the oncoming train as soon as the cab had cleared the tracks.

Plaintiff’s main contention on appeal is that his employee could not and did not see the oncoming train until he was on the track because idle box cars or flat cars obstructed the view of the train. Stevenson testified that he did not hear the train’s whistle until the train was only 200 feet away from him. He said he did not have time to back up so he tried to get across the track. Prior to trial, Stevenson told an insurance agent investigating the accident for the railroad that he first heard the whistle blowing when the train was 800 to 900 feet away. However, he reiterated on cross exam at trial that the train was only 200 feet away when he first heard the whistle.

The train engineer, conductor and brakeman all testified that the train bell and horn were turned on some 1,200 to 1,300 feet from the crossing. They spotted the truck when the train was about 900 to 1,000 feet from the crossing. Contrary to Stevenson’s testimony, all three crewmen on the train testified that there were no railroad cars impeding the view of the truck driver. However, the truck driver’s view may have been impeded, they said, because the passenger window on the truck, which was the window facing the oncoming train, was rolled up and somewhat covered with mud.

Photographs taken at the scene some 30 to 45 minutes after the accident were introduced by the defendant into evidence. These photographs show clearly and beyond doubt that there was no obstruction to the view of the truck driver before he crossed the track of the oncoming train. The photographs reveal that the truck driver could have easily seen the train had he been attentive. The preponderance of the testimony shows that there was no movement of any cars from the railroad tracks between the time of the accident and the time the photographs were taken, indicating that the photographs depicted the scene as it existed at the time of the accident. However, there was some scant testimony by plaintiff’s witnesses to the effect that some railroad cars were moved after the accident but before the pictures were taken. Stevenson’s testimony was that the cars blocking his view were located on the wood yard spur line. Thus, if there was any movement of cars between the time of the accident and the time the pictures were taken, the movement would have occurred on the spur track and not on any of the other three tracks, which the testimony shows were free of railroad cars at the time of the accident. Therefore, even if plaintiff’s view were blocked by railroad cars on the spur track, his view became unobstructed by the time he crossed the eastern siding track.

Since the trial judge rendered judgment in favor of plaintiff, he must have found that the train crew breached a duty and that the truck driver was not contributorily negligent. We conclude that because of the conflict in the testimony between plaintiff’s witnesses and the train crew as to when the whistle and bell were sounded, the trial judge was not in error in finding a breach of duty.

However, a close reading of the record and the testimony, and particularly a review of the photographs introduced by the defendant, convinces us that the trial court erred manifestly when he failed to hold that the plaintiff was contributorily negligent. Had Stevenson been even somewhat attentive he easily could have seen the train and probably could have heard the bell and whistle before he attempted to cross the southbound mainline track. As we noted above, even if we concede that there were box cars or flat cars on the spur track, those cars would in no way have obstructed Stevenson’s view after he crossed the spur line track. The record shows there is a distance of some 61 feet between the western edge of the spur line and the eastern edge of the southbound mainline track, which is more than sufficient to have given Stevenson time to notice the oncoming train had he been attentive. A motorist approaching a railroad crossing is charged with the responsibility of seeing and hearing what he could have seen and heard. Theriot v. Texas and N.O.R. Co., 220 So.2d 563 (La.App. 4th Cir. 1969) writ refused, 254 La. 142, 222 So.2d 886 (1969); McCray v. Illinois Cent. R.R. Co., 244 So.2d 877 (La.App. 1st Cir. 1971). See La.R.S. 32:171(A)(4) and La.R.S. 45:563. The contributory negligence of plaintiff’s employee is a bar to plaintiff’s recovery in this case. The trial court’s decision casting ICG liable for the damages is therefore reversed.

THIRD PARTY DEMAND

In its third party demand, ICG contends that under the terms of a May, 1972 track-age agreement the paper company agreed to hold the railroad harmless and to indemnify the railroad company for damages and attorney’s fees for any injury or property damage which occurred at the crossing and which was not caused by the sole fault of the railroad. The trackage agreement was apparently an arms length transaction between two business entities. In return for allowing the paper company to establish a crossing at this particular location, the railroad required that the paper company agree to hold it harmless and to indemnify it for any accidents which might arise at the crossing, provided that they were not solely caused by the fault of the railroad. It is certainly understandable that a railroad would seek such a hold harmless and indemnity agreement because the addition of a new crossing on the tracks increases the likelihood of an accident occurring thereon.

The paper company contends that the hold harmless and indemnity agreement is only operable when there is some negligence attributable to the paper company. We do not read the trackage agreement this way. Under the specific terms of the agreement, the only time the paper company will be relieved under the hold harmless and indemnity clause is when the accident is caused solely by the negligence of the railroad. As we found above, the railroad was not solely at fault for the accident in this case because the plaintiff substantially contributed to the damage which occurred. The paper company will therefore bear the costs of the railroad’s defense in this case, which the record shows was $1,750.00.

Therefore, for the above and foregoing reasons, the decision of the trial court on the principal demand is reversed and ICG is absolved from liability to the plaintiff. On the third party demand, International Paper Company is cast in the amount of $1,750.00 for ICG’s attorney’s fees.

REVERSED AND RENDERED.


text:
    Floyd TIMMONS v. The MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD OF the CITY OF BOGALUSA.
    No. 14046.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.

      Leonard A. Washofsky, Hess & Washof-sky, New Orleans, for plaintiff.
    John N. Gallaspy, Gallaspy & Paduda, Bogalusa, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

Floyd Timmons, a patrolman first class with the Bogalusa Police Department, was dismissed from his job on August 16, 1979. The letter of termination charged him with (1) unwillingness or failure to perform the duties of his position in a satisfactory manner and (2) insubordination. La.R.S. 33:2500(A)(1), (4).

Timmons appealed his dismissal to the Municipal Fire and Police Civil Service Board of the City of Bogalusa, which upheld the dismissal on October 9, 1979. He then appealed his case to the Twenty-Second Judicial District Court for the Parish of Washington, where his dismissal was again upheld on March 26, 1980. This is an appeal from the decision of the Civil Service Board and the district court.

THE FACTS

Floyd Timmons was hired as a patrolman by the City of Bogalusa on March 19, 1976. From the time of his employment until the time of his termination Timmons was involved in a number of accidents which caused him to take some 419 days of sick leave during that period. Timmons missed three weeks of work when he fractured his shoulder while playing with his child; three months of work when he was involved in an automobile accident with his family; and 207 days during the year of trial for injuries received when he was involved in an accident with another police unit on November 16 or 17, 1978. In the accident with the other police unit, Timmons injured his neck. Disc surgery has been suggested by a physician.

Following the neck injury which resulted from the automobile accident, Timmons attempted to return to work on January 19, when he was again placed on full time duty. On January 24,1979, he was involved in an altercation with a suspect he was attempting to arrest and jammed the ring finger of his left hand. He apparently reinjured his neck at this time and, five days after the altercation, he complained to a doctor that he had cervical problems.

Under doctor’s instructions, Timmons returned to light duty following the altercation and was placed on the meter beat, which was a light duty type of work requiring him to ticket vehicles which were violating parking regulations. The meter beat required Timmons to walk a distance of about 1.2 miles once or twice a day and place tickets on the cars which were violating the regulations. On the first day of the meter beat, Timmons worked for about two hours but left the job complaining of “aches and pains.” He worked another two days on the meter beat but said he could not continue because of the pain and because of his fear that he might become involved in an altercation and exacerbate his neck injury. During his time on the meter beat, Timmons was required to wear a cervical collar under doctor’s orders. Timmons says he was willing to do some work which did not place him in danger of aggravating his neck injury, but there was no office work at the Bogalusa Police Department for him to do.

Timmons’ failure and/or refusal to work on the meter beat was the primary reason for the first charge against him. Bogalusa Police Chief Earl Glynn Penton admitted that 90 percent of the sick days taken by Officer Timmons were taken because of injury incurred in the line of duty. The assistant police chief said he had no complaints about Timmons’ performance while Timmons was on the job.

On August 14, 1979, while Timmons was off on sick leave, the assistant police chief saw Timmons’ car parked in front of the Disco Utopia Lounge in Bogalusa. Bogalu-sa Police Departmental Order 79-02 provides that “while on sick leave, no police officer or employee of the Bogalusa Police Department will be allowed to drink in a bar or lounge.” The assistant police chief and the chief of police both witnessed Tim-mons’ car at the lounge and the assistant police chief saw Timmons leave the lounge. The chief and his assistant spoke to a bartender, who they said told them that Tim-mons had consumed some beer while in the lounge. However, at the hearing before the Civil Service Board, the bar owner testified that he did not know whether Timmons had consumed any alcoholic beverages and generally denied that he had told the chief and the assistant that Timmons had. A man whom Timmons sat with at the bar said he and Timmons discussed a little league baseball banquet that they were organizing for their respective little league teams. This man testified that Timmons drank only orange juice while he was at the bar and did not drink any alcoholic beverages. This witness says Timmons remained in the bar for about 30 or 45 minutes discussing the little league banquet. Timmons testified, too, that he consumed no alcoholic beverages while he was at the Disco Utopia Lounge.

Police Chief Penton testified that the main reason he terminated Timmons’ employment was because of the barroom violation. The chief said the intent of departmental order 79-02 is to keep off duty police officers who are on sick leave out of the barrooms. “It doesn’t say that, I know it, but that was the intent of that,” the police chief testified in referring to the barroom prohibition. The chief also testified that Timmons was aware of the intent of the prohibition because he had been disciplined for violating the order on April 9, 1979.

ACTION OF THE CIVIL SERVICE BOARD

After hearing all of the testimony, the Civil Service Board voted unanimously to uphold the decision of the appointing authority in discharging Officer Timmons. Board chairman Durwood Alford made the motion to uphold the decision after making the following statement:

“We will reconvene and I guess we have been through the soul-searching part that we always have to do, and I think that this Board, that we fully recognize the seriousness of the matter and certainly the effect our decision has upon another human being, and we felt that with the two charges that were really made, that one of them really deals with a physical condition and whether he is physically able to work or not, and whether he is able to do the job or isn’t, that it certainly is less than clear, and since that issue is being litigated in the court, I think that whether Mr. Timmons is entitled to workmen’s compensation, that in the due process of law that that question is going Nto be answered. With regard to the second charge, the unanimous feelings of this Board is that Mr. Timmons knew very well the rule and what that meant with respect to being in barrooms. We were here for a considerable period of time on another occasion and talked specifically about the rule and whether or not police officers who are off sick should be in barrooms, and we feel that Mr. Timmons knew fully well what the intent of that rule was, and with that I will make a motion that we uphold the decision of the appointing authority.”

ACTION OF THE TRIAL COURT

On appeal to the Twenty-Second Judicial District Court for the Parish of Washington, the Civil Service Board’s decision was affirmed. The trial court first noted that under La.R.S. 33:2501, an appeal from a Civil Service Board determination “shall be confined to the determination of whether the decision made by the Board was made in good faith for cause.... ” The trial court went on to hold that although it appeared from Mr. Alford’s oral discourse that the first charge was pretermitted by the Board, “this deferral was an affirmation of the action of the appointing authority in firing Mr. Timmons. The court finds that the Board acted in good faith for cause in affirming the appointing authority on this point.”

The trial court further held that even if the Board did not consider the first charge, it properly considered the second charge and properly found that Timmons had violated the order. Timmons’ complaint that the Board had considered a past disciplinary action against him in deciding the present insubordination charge was untenable, the trial court found. “The court does not feel that this was a consideration of his prior service record which would preclude a fair and unpartial [sic] hearing and which would amount to a finding of bad faith. Rather, it is merely indicative of the fact that the Board recognized that Mr. Timmons was aware of the nature of the order, a finding which went to the heart of his defense of the violation of Departmental Order No. 79-02.” The trial court found no merit to Timmons’ constitutional challenges against the barroom order and upheld the Board’s action completely.

SPECIFICATIONS OF ERRORS

On appeal to this court, Timmons alleges that the district court erred in finding that he was terminated with legal cause, that the Board was in good faith after reviewing his past violation record, that the Board was in good faith in finding Timmons to be in violation of an order which was vague and subject to divergent interpretations, that the Board was in good faith for going forward with this hearing before Officer Timmons was adequately informed of the charges against him and in finding that the departmental order was constitutional.

FAILURE OR REFUSAL TO WORK

After a thorough reading of the pleadings and transcript of the Board in this case, especially the comments of Chairman Alford preceding his motion for upholding the termination, we are convinced that the Civil Service Board did not act on the charge of failure or refusal to work. As the chairman noted, whether Officer Tim-mons was or was not able to do his job “certainly is less than clear....” The Board in effect deferred action on the first ground given for Timmons’ termination. We so find and though the trial judge was in error as to this point, it is of no moment.

THE BARROOM ORDER

As noted above, Bogalusa Police Departmental Order 79-02 prohibits an officer on sick leave from drinking in a bar or lounge. The order was issued January 23,1979, with a letter to all members of the Bogalusa Police Department from Chief Penton. The letter addressed the past abuse of sick leave in the department and, in the second paragraph, stated: “In the past, employees on sick leave have been known to go fishing, hunting, and frequenting bars and lounges. This practice will cease.” Officer Timmons signed the attached certification indicating that he had received a copy of the new departmental order and the letter to employees.

Although the order itself does not explicitly prohibit an employee from simply being in a bar or lounge while on sick leave, the intent of the order as expressed in the letter to employees and as told to Officer Timmons on numerous occasions was to prohibit a police officer on sick leave from even being in a bar or lounge. The preponderance of the evidence taken at the disciplinary hearing shows that Timmons knew of the intent of the departmental order. We find, too, that there was a violation by Timmons of the express and literal terms of the departmental order. The order prohibits an officer on sick leave from drinking in a bar, and Timmons admitted on the stand that he was drinking orange juice in the Disco Utopia Lounge when he was discovered by the chief and assistant chief. Appellant’s argument that the order only prohibits the drinking of alcoholic beverages is without merit. The departmental order prohibits the drinking of anything in a lounge because the impression given by a person in a lounge with a glass in his hand is that he is drinking alcoholic beverages. Timmons therefore violated the letter and intent of the departmental order.

Timmons claims that the order is a violation of the constitutional guarantee of substantive due process. We disagree. A police departmental order prohibiting an officer on sick leave from drinking in a bar or lounge bears a real and substantial relationship to the appropriate governmental objective of maintaining public confidence in the police force. The departmental order bears a reasonable relation to the goal sought to be attained by the police department, i. e., integrity and confidence in the police force, and the order was adopted in the interest of the community as a whole. Everett v. Goldman, 359 So.2d 1256 (La.1978). It is clearly a valid objective of the police department to prevent off duty sick police officers from frequenting barrooms. Public confidence in the police force could be severely undermined if police officers who were allegedly sick were allowed to continue to frequent bars and lounges.

Also untenable is Timmons’ claim that the Board considered past disciplinary actions against him in deciding to dismiss him from the force in this case. The Civil Service Board, having fairly recently sat on a similar charge against Timmons, obviously was aware of the previous charge. We find, however, that the fact that Timmons had been disciplined previously for the same violation was used by the Civil Service Board only to show that Timmons knew the intent of the departmental order he was charged with violating.

The case of Dumez v. Houma Municipal Fire and Police Civil Service Board, 365 So.2d 603 (La.App. 1st Cir. 1978) is distinguishable. In Dumez, the court found that the Civil Service Board had considered the previous service record of the officer and that the record of prior disciplinary actions influenced the Board members “to a considerable degree.” There was also evidence in that case that the Board members had discussed the charges prior to the hearing. Under those circumstances, the court found the officer did not have a fair and impartial trial. In the case at bar, as mentioned previously, the fact of the prior disciplinary hearing was used by the Board only to show that Timmons knew of the intent of the order. There was no indication that the prior disciplinary actions against Timmons influenced the Board members in this case to any degree or that the Board members discussed the case prior to the hearing.

Timmons claims that the departmental order prohibits him from freely associating with others. This claim, too, is without merit. Timmons could have discussed the little league banquet at his house or at the house of the friend he met at the bar. He was not prohibited by the order from associating with anybody. He was prohibited from drinking in a bar or lounge and he violated this prohibition. We find that the Civil Service Board acted in good faith for cause in dismissing Officer Timmons.

Finally, Timmons’ contention that he was not adequately informed of the charges against him is unfounded. The dismissal letter sent to Officer Timmons clearly sets forth the rules he was accused of violating.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: ELLIS, Judge: WATKINS, Judge,

text:
    Calvin LAPOINT et al. v. Phillip P. BREAUX et al. Elmer E. HOWARD et al. v. Phillip P. BREAUX et al.
    Nos. 13902, 13903.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.
    Writ Refused April 27, 1981.

      Kim P. Stansbury, Lippman, Mahfouz & Martin, Morgan City, for Elmer E. Howard.
    Charles B. Plattsmier, William D. Hunter, Ltd., Morgan City for Calvin Lapoint.
    David M. Kaufman, Roy & Forrest, New Iberia, and A. D. Barnes, Jr., Cucullu & Barnes, New Orleans, for Howard Trucking Co. and Automobile Ins. Co.
    Nan M. Landry, Landry, Watkins & Bo-nin, New Iberia, for Dairyland Ins. Co.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

These two consolidated cases arise out of an accident between an automobile operated by Keith Howard, in which Glen Lapoint was a guest passenger, and a truck-trailer rig owned and operated by Phillip P. Breaux, and leased to Howard Trucking Company. In the accident both Howard and Lapoint were killed. Suits were filed for their wrongful death by their surviving parents, with Breaux, Howard Trucking Company, and Automobile Insurance Company, their insurer, as defendants. Dairy-land Insurance Company, Howard’s insurer, was named as an additional defendant in the Lapoint case.

Trial on the merits was held before a jury, which rendered a verdict finding that both Breaux and Howard were negligent and that Lapoint had assumed the risk of injury. Pursuant to those findings and a holding by the trial judge that the doctrine of last clear chance could not be invoked by plaintiffs, judgments were rendered dismissing both suits, and plaintiffs have appealed.

The collision occurred just after midnight, on U.S. Highway 90 in Morgan City, Louisiana. At the point of the accident, Highway 90 is a four-lane, undivided highway, running east and west, the lanes each being 11 feet nine inches in width. About 135 feet west of the point of the accident is the intersection of Highway 90 and East Boulevard, which is controlled by a stoplight.

Mr. Breaux was driving a pickup truck-gooseneck trailer rig about 51 feet long. He and another driver, who had a similar rig, were parked in a lot east of the intersection on the south side of Highway 90. They were planning to head west on Highway 90 from that place. The other driver left the lot first and negotiated a left turn into the outside westbound lane of the highway and pulled up to the stoplight, which was red for traffic on the highway. Mr. Breaux came out of the lot right behind the first truck. He testified that he looked to the left, and saw a car approaching from the west, a good distance away, and noticed that the light was red for traffic on Highway 90. He looked to his right and saw a car approaching from the east nearer than the other car, but still far enough away for him, in his opinion, to enter the highway safely. He then pulled out across the highway, and, when the trailer was completely blocking the eastbound or southerly two lanes of the highway, he saw the Howard car as it approached the trailer, just before the collision.

The point of impact was probably in the outside eastbound lane, about 135 feet west of the center of the intersection of East Boulevard and Highway 90. The testimony indicates that the light turned green for traffic on Highway 90 shortly after Mr. Breaux pulled out, and before the Howard car reached the intersection. Mr. Breaux and his companion driver both testified that the Howard car was being driven at a high rate of speed. Two eyewitnesses, who worked at a filling station at the northeast corner of the intersection, testified that they estimated the speed of the Howard vehicle at about 45 miles per hour. An expert accident reconstruction expert testified that the speed of the Howard vehicle was about 47 miles per hour at the time of the impact. There is nothing to indicate that Howard applied his brakes before the accident.

The sidelights on the trailer were found by investigating officers to be in accordance with the law, which requires that they be visible from a distance of 500 feet. R.S. 32:311. Other evidence in the record indicates that the area in which the accident happened was fairly well lit because of street lighting, and the lights on commercial establishments in the vicinity.

The accident reconstruction expert testified that it would have taken the truck-trailer rig about four seconds from the time it pulled out to reach the position it occupied at the instant of the collision. He also testified that the perception-reaction time for a driver on the highway would vary from one and one-half to four seconds, depending on the conditions. The trial judge sustained an objection to the question when the expert was asked what the perception-reaction time would have been under the circumstances existing at the time of the accident. The jury, therefore, was not aware that the expert’s opinion was that the perception-reaction time that night would have been four seconds. Since this type of testimony lies within the area of expertise of the accident reconstruction expert, the testimony should have been admitted.

Based on the foregoing facts, and not considering the question of Keith Howard’s intoxication, which is a major defense contention, we find that the jury correctly found negligence on his part. Assuming that the Howard vehicle was going 45 miles per hour, and that it took the truck-trailer rig four seconds to reach its position at the time of the collision, the Howard vehicle was over 250 feet away when the truck began to pull out. At this distance, which is less than a block, Howard should have been able to see the truck and trailer, which were fully and legally lighted, and which were in a fairly well lighted area. Even if he did not see the rig until he passed under the stoplight, there was still time to slow his vehicle, and room to pass to the rear of the trailer on the shoulder. We are not impressed with the opinion of the accident reconstruction expert that the perception-reaction time was four seconds, under the conditions at the time of the accident. Drivers on highways are obligated by law to keep a proper lookout and to see what is there to be seen. Keith Howard evidently failed in this duty, since he never applied his brakes. We think the jury properly found him to be guilty of negligence which was a cause of the accident.

We further find that the record supports the verdict of the jury that Breaux was guilty of negligence which was a cause of the accident. He pulled out into the highway at a time when it was not safe to do so, as is evidenced by the occurrence of the accident.

Defendants seek to defend against Glen Lapoint on the theory that he assumed the risk of the accident. They contend that Keith Howard was intoxicated, that his condition was obvious, and that, by riding with Howard in the car, Lapoint assumed the risk of any accident substantially caused by Howard’s intoxication. If this be true, La-point would be precluded from recovery, from Howard or from any third party whose negligence was a contributory cause of the accident. Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1976); Viator v. Grain Dealers Mutual Insurance Company, 182 So.2d 165 (La.App. 3rd Cir. 1966).

The principal evidence as to Howard’s intoxication is the results of two tests made of his blood after the accident. This evidence was objected to by plaintiffs on the ground that the chain of possession of the blood samples, between the time they were drawn and the time the tests were made, was not sufficiently proven. In Pearce v. Gunter, 238 So.2d 534 (La.App. 3rd Cir. 1970), the court said:

“It is fundamental in the law of evidence that an article or substance which is introduced as demonstrative evidence, or as to which a witness is asked to testify, must be sufficiently identified as the one involved in the occurrence in question. ... The foundation must connect the specimen with its source, show that it was properly taken by an authorized person, properly labeled and preserved, properly transported for analysis, and properly tested.”

In this case, it is shown that the blood samples were drawn by the coroner who conducted the autopsy. He testified that he usually labelled the samples himself, but that in some cases they would be la-belled by his assistant. He had no independent recollection of who labelled the samples in this case. One of the samples was forwarded by mail to the State Crime Lab in New Iberia. There is no evidence as to who mailed the sample or how it was received. The person who actually conducted the test was deceased and unable to testify. His supervisor, who reviewed his work, did testify as to the results of the test. We find that this chain of circumstances was not sufficient to satisfy the requirements of law for admissibility of the test results, and the results of the test should have been excluded.

The evidence shows that the other sample was picked up by a man from the Medical Pathology Laboratories, Inc., and by him delivered to that laboratory, where it was immediately tested. The man who picked up and delivered the blood sample did not testify nor did the person who delivered the sample to him. The person who actually performed the test testified as to how samples were customarily picked up and delivered, as to how the test was conducted, and the results thereof. There is, therefore, nothing but the label on the sample to connect the testimony of the coroner and that of the person conducting the test. We find that this chain of circumstances does not satisfy the requirements of the law, and the evidence as to the result of the second test should have been excluded.

The clear preponderance of the other evidence bearing on Howard’s intoxication is to the effect that he showed no signs of intoxication when he drove off with La-point shortly before the accident.

Under those circumstances, Lapoint did not assume the risk of the accident which occurred, and is entitled to recover, in soli-do, from both of the parties whose negligence caused the accident.

The records show that Glen Lapoint was 18 years of age, lived with his parents and held a full-time job. He contributed to his parents’ support. Dr. Seymour J. Goodman, professor of economics, Graduate School of Business Administration, Tulane University, was accepted as an expert witness in the field of economics. He testified that the current median age for first marriage for males in the United States was 22.9 years. Based on this figure he used a five year period to calculate the loss of future income to Lapoint's parents. Assuming that Lapoint would use some of his earnings for his own benefit, Dr. Goodman testified that the present value of the net loss of support to the parents would be approximately $30,000.00. We, therefore, find that the parents of Lapoint, Calvin Lapoint and his wife, are entitled to loss of support from their son, Glen Lapoint, in the sum of $30,000.00.

The parents of Glen Lapoint, Mr. and Mrs. Calvin Lapoint, were very fond of their child, and his loss was a great blow to them. We, therefore, find that each parent is entitled to an award of $50,000.00 for loss of companionship, love, and affection. See Walker v. St. Paul Ins. Companies, 343 So.2d 251 (La.App. 1st Cir. 1977); Williams v. State Farm Mut. Auto. Ins. Co., 349 So.2d 1275 (La.App. 1st Cir. 1977); Youngblood v. Oil Well Chemical Co. of La., 352 So.2d 316 (La.App. 4th Cir. 1977).

Glen Lapoint survived the accident by several hours. The evidence shows that he was unconscious during this period but that he uttered a deep moan when he was moved. We award the parents of Glen Lapoint, Mr. and Mrs. Calvin Lapoint, together, the sum of $2,000.00 for his pain and suffering.

Accordingly, the judgment of the trial court is reversed and judgment is rendered in favor of Calvin Lapoint in the sum of $66,000.00, and in favor of Eula Mae La-point, wife of Calvin Lapoint, in the sum of $66,000.00, against Phillip P. Breaux, Howard Trucking Co., Inc., Automobile Insurance Co., and Dairyland Insurance Company, in solido. The liability of Dairyland Insurance Company is subject to the $5,000.00 limit of liability in its policy. All costs shall be paid by defendants.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

WATKINS, Judge,

dissenting.

I dissent from that part of the holding of the majority that finds Howard was contributorily negligent, and hence holds his survivors cannot recover.

The majority holds that the blood tests used to indicate possible intoxication on the part of Howard were inadmissible. As the jury was in all probability strongly influenced by the results of the blood tests, and as these were material to the issue of Howard’s negligence, we must assume that the majority opinion was written as if this Court was the initial trier of fact. The majority opinion is postulated upon Howard’s sobriety, and is founded upon negligence of another type, failure to stop or even to apply the brakes when approaching a truck 4 seconds away.

The Breaux vehicle in entering the highway from the parking lot had to traverse the eastbound lanes in making its left turn into the westbound lanes. Breaux, therefore, was making a left turn. Whether the approaching vehicle is coming at a 180 deg. angle or a 90 deg. angle is totally irrelevant; the danger of negotiating a left turn across a lane of travel occupied by an oncoming vehicle is equally great. The jurisprudence of this state is replete with holdings that one negotiating a left turn and crossing another vehicle’s lane of travel has a very high standard of care imposed upon him, and that the burden is on the person negotiating a left turn to show that he exercised that degree of care. The reason for the strict duty is the obvious danger to the oncoming vehicle whose lane of travel is being traversed. Bennett v. United States Fidelity & Guaranty Co., 373 So.2d 1362, writ den. 376 So.2d 1269 (1979), is clearly in point. In that case, defendant made a left turn in the face of plaintiffs car. Plaintiff in that case may or may not have been intoxicated at the time of the accident, but was clearly speeding at the time the accident occurred. We held that the burden was on the defendant who was making a left turn to show that the accident could have been avoided had plaintiff been going within the posted speed limit or if plaintiff had not consumed alcohol.

In the present case defendants failed to produce a single witness who could testify that Howard could have avoided the accident, although the burden was undoubtedly upon them to do so. The evidence preponderates quite clearly to the contrary. The only expert called to testify was Mr. Sylva-nous Walker, whose testimony, if admitted, would have indicated that Howard’s perception reaction time was four seconds, the exact time-distance the Breaux truck was in front of Howard when it first entered Howard’s lanes of travel on the highway. Mr. Walker’s testimony, therefore, establishes the fact that the perception reaction time of Howard under existing conditions was approximately four seconds, and the clear weight of the evidence that it took Breaux approximately four seconds to arrive at the point of impact from the time he entered the highway, lead to the inescapable conclusion that Howard did not have time to avoid colliding with Breaux’s vehicle which was blocking the two eastbound lanes of travel at the time of impact.

I agree with the majority that Lapoint did not assume the risk, as absent the blood test results, there was no substantial evidence that Howard was intoxicated.

I respectfully dissent.


author: ELLIS, Judge:

text:
    STATE of Louisiana in the Interest of Rhonda JARRELL.
    No. 13965.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.

      Roy K. Burns, Jr., Sp. Prosecutor, Cov-ington, for plaintiff.
    Carole B. Shauffer and Steven Scheck-man, American Civil Liberties Union of La., New Orleans, Thomas J. Ford, Indigent Defender’s Office, Covington, for defendant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

Rhonda Jarrell, age 13, was adjudicated a delinquent child in need of supervision, and committed to the custody of the Department of Corrections for not more than two years, by judgment dated January 14,1980. On March 7, 1980, an application for a writ of habeas corpus was filed on her behalf, and a full hearing was held thereon on March 14,1980. The application was denied from the bench on that date, according to the transcript. No formal judgment has been signed.

According to a letter in the record, a notice of appeal was mailed to the Clerk of Court, but was not received. A copy of the motion was forwarded on April 3,1980, and received by the Clerk on April 7, 1980. It was not signed by the judge, however, and on April 25,1980, the motion for appeal was withdrawn.

An application for writ of certiorari was then filed with the Supreme Court, which, on August 21, 1980, 387 So.2d 598 transferred the application to this court. On September 8, 1980, the application was denied with the notation: “Relator has an adequate remedy by appeal. La.C.C.P. art. 3831.”

A second application for writs was made to the Supreme Court, which, on October 3, 1980, 392 So.2d 676, granted the writ, and ordered this court “to recall its writ denial and grant the writ, treating the matter as an appeal, and to decide the merits.” We assume that the Supreme Court intended for this court to decide this case despite the fact that there has been no final judgment signed, no appeal taken, and that any judgment signed would be appealable. Article 24, Code of Juvenile Procedure; Articles 1911, 2083, 2087, 3831, Code of Civil Procedure.

In compliance with that order, we recalled our denial of the writ, issued a writ of certiorari ordering the record to be sent up, and ordered that, on the lodging of the record, the matter be treated as an appeal.

The application for the writ of habeas corpus is based on the contention that the guilty plea entered by Rhonda Jarrell, on which the finding of delinquency was based, was not voluntarily and intelligently given.

The record shows that Rhonda and her nine-year-old sister were charged with attempted second-degree murder and aggravated arson, following a fire in which the mobile home where they lived was totally destroyed and their parents seriously injured. Rhonda and her sister were picked up by authorities the next day and were brought before the court on the day following, January 14, 1980.

Thomas J. Ford, Jr., a member of the staff of the Indigent Defender Office of St. Tammany Parish was named by the court to defend both Rhonda and her sister. He testified that he fully explained to Rhonda and her sister who he was and what he was doing, the nature of the charges against them; the various options available to them, the consequences of a plea of guilty and of a plea of not guilty; and of their right to remain silent. He was of the opinion that both girls fully understood what he had told them. Salvador J. Liberto, Jr., Director of the Indigent Defender Office, was present during a portion of the interview with the girls, and was of the opinion that they had been fully “Boykinized,” and that they understood what was going on.

After speaking with Rhonda and her sister, Mr. Ford then entered into a plea bargain with the prosecuting attorney, by virtue of which the girls were to plead guilty to the charge of aggravated arson, and the State would nol. pros, the charge of attempted murder.

The trial judge interrogated Rhonda, advised her of her rights, of the consequences of a plea of guilty, and of her right to remain silent. Rhonda then admitted that she had set the fire, knowing that her parents were in the trailer asleep, after which the judge accepted her guilty plea, found that she was a delinquent juvenile and in need of confinement, and committed her as aforesaid.

When it appeared that the nine-year-old sister did not fully understand the proceedings or the import of her plea of guilty, the plea was withdrawn on her behalf by Mr. Ford.

In this court, Rhonda Jarrell alleges that the proceedings leading up to the acceptance of her guilty plea and her commitment to the Department of Corrections were deficient in a number of respects.

First, she alleges that she was not adequately informed of the consequences of her plea. Specifically, she points out that the judge did not advise her of the maximum period of time, eight years, during which she could be confined. The judge did tell her that she could be confined for “a certain length of time” and that, if she were an adult she could be imprisoned for “a long, long time.”

She also complains that the judge did not explain what Louisiana Training Institute was, and what she would be doing there. At the time of the hearing Rhonda was in a juvenile detention center in Slidell. The judge told her that she would be held “in a similar place,” and that she would be going to a school “under a similar circumstance of where you are staying right now.”

The fundamental question to be decided in this case is whether the plea of guilty entered by Rhonda Jarrell is in violation of federal constitutional standards. In the case of State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), the court said:

“Accordingly, we reach the merits of the petitioner’s contention — that his plea of guilty of February 24, 1970, must be set aside, as taken in violation of the federal constitutional standards prescribed by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
“In Boykin, the United States Supreme Court held:
‘It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary. [395 U.S. 242, 89 S.Ct. 1711] * * * Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record. [395 U.S. 243, 89 S.Ct. 1712.]’ (Italics ours.)
“The high court further noted that the trial judge must make sure that the accused ‘has a full understanding of what the plea connotes and of its consequence’. 395 U.S. 244, 89 S.Ct. 1712. It further quoted with approval the observation that, if guilty pleas “are to be insulated from attack, the trial court is best advised to conduct an * * * examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences.” 395 U.S. 244, 89 S.Ct. 1713.”

In this case, Rhonda’s court appointed counsel conferred with her for over an hour and testified that he had fully explained to her her constitutional rights, the nature of the charge against her, her right to a trial and the consequences of a guilty plea. He did not specifically testify that he told Rhonda anything relative to the maximum or minimum sentences which she might expect. He was of the opinion that Rhonda fully understood everything he told her.

After the discussion with Rhonda, counsel then entered into a plea bargain with the district attorney, under which Rhonda would plead guilty to the charge of aggravated arson and the state would enter a nolle prosequi of the charge of attempted murder.

The trial judge then determined that Rhonda was 13 years of age and in the seventh grade. The colloquy between the judge and Rhonda seems to satisfy all of the Boykin requirements, except that the permissible range of sentences was not discussed. Rhonda was only told that she could be “confined to the Louisiana Training Institute for a certain length of time,” and that L.T.I. is “a similar place” to the detention facility where she had been held after being taken into custody.

Although we think it clear from the record that both counsel and the trial judge exhibited great concern for the protection of Rhonda’s constitutional rights and for her welfare, we must hold that, in failing to disclose fully the possible consequences of a plea of guilty, they failed to meet the standards imposed by the Boykin case, supra.

It is therefore ordered that the plea of guilty entered by Rhonda Jarrell, and the sentence imposed as a consequence thereof be set aside, and the case be remanded for further proceedings, according to law.

REVERSED AND REMANDED.


text:
    Cynthia LLOYD, Individually and as Tutrix of Doris Lloyd and Eric Lloyd v. STATE of Louisiana.
    No. 13968.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.

      Dennis R. Whalen, Baton Rouge, for plaintiffs-appellants Cynthia Lloyd, Ind., & as Tutrix of Doris Lloyd & Eric Lloyd.
    Ben W. Lightfoot, Baton Rouge, for defendants-appellants Frank M. Edwards, Jr., and Jack Liuzza.
    Arthur E. Stallworth, Dept, of Justice, Baton Rouge, for defendant-appellee State of Louisiana, through Dept, of Corrections.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a suit by Cynthia Lloyd, individually and as tutrix of Doris Lloyd and Eric Lloyd, for the wrongful death of their mother, Vertie Lloyd. Made defendants are the State of Louisiana, through the Department of Corrections, Walter Wren, Jr., Frank M. Edwards, J., and Jackie Liuz-za. After trial on the merits, judgment was rendered in favor of plaintiffs and against Wren, Edwards and Liuzza for a total of $130,000.00. The final judgment was silent as to the State of Louisiana, and we assume that plaintiffs’ claim as to it was dismissed. From that judgment, Edwards and Liuzza have appealed. Plaintiffs have answered that appeal, asking for damages for a frivolous appeal, and have appealed from the dismissal of the State of Louisiana.

The record shows that in 1972 Walter Wren, Jr., was sentenced to the state penitentiary for life for the murder of his wife. He was incarcerated at De Quincy until 1975, when, pursuant to a court order, signed by a Tangipahoa Parish District Judge, he was returned to the Tangipahoa Parish Jail. Edwards, who was at that time Sheriff of Tangipahoa Parish, testified that he probably arranged to have Wren returned to the parish jail. After a few months in the jail, Wren went to work on a dairy farm, leased by Edwards from Liuzza, who was Warden of the parish jail. He was given room and board and paid $35.00 per week. Edwards testified that the money went to Wren’s family and was paid by him personally. At the dairy farm, Wren had access to a pickup truck, in which he delivered milk to the parish jail, and was relatively unrestricted in his movements. He also had access to a shotgun.

During the next two years, the State inquired after Wren on several occasions, but received no answers to the inquiries, and never followed up on any of them.

Wren struck up a relationship with Vertie Lloyd, plaintiffs’ mother, while he was living at the dairy farm. After some time, they began to have difficulties, and on March 20,1977, Wren murdered Mrs. Lloyd by shooting her in the head with a 12-gauge shotgun, which he had obtained at the dairy farm. He then surrendered himself and the gun to Liuzza, and, eventually, pled guilty to second degree murder and was again sentenced to life imprisonment.

The trial court found that both Edwards and Liuzza owed a duty to law abiding citizens to protect them “from a convicted shotgun murderer” whom they permitted “to have complete and unfettered use of a shotgun, ammunition and a pickup truck.” In this court, Edwards and Liuzza argue that the murder of Mrs. Lloyd by Wren was not a foreseeable consequence of allowing Wren such freedom, in view of his record, which was entirely clear except for the murder of his first wife, and that they were therefore not negligent in their conduct.

We think it clear from the record that there was no legally constituted work relief program in effect in Tangipahoa Parish during the time Wren worked on the dairy farm, although Act 188 of 1968, which permitted such programs, was then in effect. We can find no provisions of the law which permit a felon to be returned to a parish jail from the custody of the Department of Corrections for no reason other than to work for a public official. Certainly, both Edwards and Liuzza exceeded their authority in pursuing this course of conduct. However, this conduct, of itself, does not necessarily subject them to civil liability for the torts of the prisoner. In Green v. State, 91 So.2d 153 (La.App. 1st Cir. 1956), an escape case, we said:

“An institution’s duty to restrain a convicted criminal is not based upon the purpose of protecting the general public from all harms that the prisoner might inflict if he were allowed to escape. A convicted person may be as dangerous on the day of his legal release as he was on the first day that he was confined, although the institution may still be under a legal duty to detain or to release him. There is no more reason for the State to be civilly responsible for the convict’s general misconduct during the period of his escape than for the same misconduct after a legal release, unless there is some further causal relationship than the release or escape to the injuries received.”

The record reveals that the record of Walter Wren, Jr., was exemplary prior to and after the murder of his first wife. One employer characterized him as “dependable, honest, intelligent, hardworking, and ambitious” and another said he was “a leader, hard-worker, honest and very aggressive, cooperative, and dependable.” He was incarcerated in LCIS at De Quincy from August, 1972, until March 21, 1975, and his record was clear. He was granted four furloughs home during that time, without incident.

After being returned to Tangipahoa Parish, in March, 1975, he remained in the parish jail for a few months, and then was sent to the dairy farm. He worked there without incident until he killed Yertie Lloyd on March 20, 1977, a period of about two years.

Under the above circumstances, we cannot find any liability on the part of Edwards, Liuzza or the State. Considering Wren’s record, there was little reason to foresee that he would commit a second murder. We do not think that a sufficient connection has been established between Wren’s release and the murder of plaintiffs’ mother. We find that the judgment as to Edwards and Liuzza must be reversed.

Plaintiffs have asked for damages for the emotional trauma suffered by them when they discovered the dead body of their mother. The trial judge held that there was no authority for such an award. We agree. Plaintiffs are entitled to recover for their mental pain and anguish because of the wrongful death of their mother. However, they have no right to recover damages for whatever trauma they may have suffered as a result of finding their mother’s mutilated body. Dupuy v. Pierce, 285 So.2d 321 (La.App. 3rd Cir. 1973).

The judgment below is therefore reversed and set aside insofar as it gives judgment against Edwards and Liuzza, and plaintiffs’ suit will be dismissed as to them. In all other respects, the judgment is affirmed, at plaintiffs’ cost.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.


text:
    Willis BELL, Jr. v. John BAIRD et al.
    No. 13973.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.
    J. Arthur Smith, III, Baton Rouge, for plaintiff-appellant Willis Bell, Jr.
    Eric L. Pittman, Hammond, James E. Kuhn, Denham Springs, for defendant-ap-pellee Lester Taylor Agency, Inc.
    John W. Swanner, Baton Rouge, for defendant-appellee Horace Mann Life Ins. Co.

      William E. Woodward, First Asst. Dist. Atty., Clinton, for defendant-appellee E. Feliciana Parish School Bd.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a suit by Willis Bell, Jr., for benefits allegedly due him under a hospitalization insurance policy. According to the record, plaintiff was employed by the East Feliciana Parish School Board as a school bus driver. Prior to October 1, 1978, employees of the' School Board were covered by a group insurance policy written by Southern Health Benefit Plan. On October 1, 1978, and thereafter, coverage was afforded by a policy written by Horace Mann Life Insurance Company.

Plaintiff’s last day on the job was September 28, 1978. On the next day, he became ill and on September 30,1978, he was hospitalized with lung cancer, and did not work again. After his illness began, his school bus was driven by another driver, but plaintiff paid for the gasoline. He remained hospitalized for about a month, and incurred medical expenses in excess of $13,-000.00. From September 29, 1978, for a period of 125 days, plaintiff was paid sick leave by the School Board. A hospitalization insurance premium was deducted from those checks and paid to Horace Mann.

Southern Health refused to pay plaintiff’s hospital expenses because they were bankrupt and no longer writing the insurance. Horace Mann has refused to pay on the ground that plaintiff is not covered by their policy. After this suit was filed, Horace Mann filed a motion for summary judgment, attaching to it the policy, an affidavit, and plaintiff’s deposition, which together with the pleadings, reflect the facts here-inabove set forth.

The policy provision on which Horace Mann relies to escape liability reads as follows:

“When a new group is formed and eligible people enroll during the initial enrollment period, coverage is effective immediately, provided employees are actively at work and dependents are not hospital confined on the effective date of coverage.”

The trial judge found that plaintiff, who was hospitalized and on sick leave, was not “actively at work” on October 1, 1978, and therefore was not covered by the Horace Mann policy. From a judgment dismissing his suit as to Horace Mann, plaintiff has appealed.

Plaintiff contends that, as a contract employee, he was obligated only to provide a school bus to the Board, and pay for its operating expenses. The record shows that he continued to do this after his illness commenced and plaintiff claims that he was, therefore, actively at work. Horace Mann, on the other hand, argues that since plaintiff was physically unable to drive the bus, and was, in fact, in the hospital, he was not actively at work within the terms of the insurance contract.

Clearly, the terms of the contract between plaintiff and the Board are material facts, which are not now before the court and which are essential to a proper determination of the question presented. We therefore find that summary judgment should not have been rendered.

The judgment appealed from is reversed and set aside, and the case remanded to the trial court for further proceedings in accordance with law. Horace Mann shall pay all costs of this appeal, with all other costs to await final determination of this case on its merits.

REVERSED AND REMANDED.


author: WATKINS, Judge.

text:
    CLASSIC CAR IMPORTS, INC. v. Huey P. MARTIN.
    No. 13974.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.
    A. Edward Hardin, Middleton & Hardin, Baton Rouge, for appellee.
    John Samaha, Baton Rouge, for appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action on an open account for car repairs. The trial court rendered judgment in the amount of $845.17, representing the balance due on the account less the costs connected with the installation of an alternator, which proved defective. In addition, attorney’s fees in the amount of $100.00 were awarded. We affirm.

The questions involved, except with regard to attorney’s fees, are largely questions of fact. Although the trial court did not assign reasons for judgment, we find the determination of the trial court not to have been clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

On November 15, 1979, defendant, Huey P. Martin, brought a 1968 Mercedes-Benz, Model 200-D (the “D” indicating the car had a diesel engine) to plaintiff, Classic Car Imports, Inc., in Baton Rouge, (which was a dealer for Peugeot, not Mercedes-Benz) for repairs. When the car was brought to Classic, the car would not start unless it was shoved, water leaked from the radiator, and it had broken taillights. Martin testified that he told the people at Classic that he wanted everything necessary to be done to put the car in condition for his daughter to drive while she was at college. David Punch, General Manager and Service Manager at Classic, testified that Martin merely said he wanted the engine repaired so it would start, the water leak repaired, and the taillights repaired. In any event, Martin signed a repair order which in fine print provided for reasonable attorney’s fees (presumably in the event the bill was not properly or timely paid). Martin testified that he knew most work orders provided for attorney’s fees, but he did not read the fine print. Punch testified he went over the problems with the car before he made out the repair order. His testimony also at one point could be taken to indicate that the repair order contained a complete list of the items to be repaired when Martin signed it. This is apparently not the case, as the repair order sets forth the repairs in the past tense, e. g. “removed and redrilled & taped 3 bolts”. However, we find that the repairs were authorized by Martin’s general authorization to put the car in good condition, even assuming that Punch’s testimony is erroneous that he went over the repairs to be made with Martin.

Work on the car was performed by Classic and completed. Nothing was done to correct poor compression, which was one of the causes of the difficulty in starting the car, as Classic considered the job unduly expensive in view of the low value and age of the car.

The car was not picked up until January. Martin gave Classic a check which he asked Classic to hold until he could pay by cash the next day. The next day, Martin came by with the car and complained that the alternator was not working properly. Martin’s testimony indicates he did not pay by cash at that time because of the trouble with the alternator. Classic attempted to negotiate the check, and it was returned for lack of sufficient funds.

The car continued not to start and to leak water. Martin brought the car to Harry Womack, an experienced repairer of diesel engines, who later bought the car. He found the main problem to be lack of compression, and after he had purchased the car, rebored the cylinders, and put in new rings to correct this problem. Also, he repaired the leak by putting in an inexpensive can of radiator additive. Womack testified that he now has no problems with the car.

Martin contends that the work done by Classic was unnecessary, as it did no good. We have thoroughly reviewed the record, and conclude that, probably, the work done by Classic and that done by Womack both contributed to the ultimate repair of the car, and that, therefore, the work done by Classic fell within Martin’s broad authorization, even if it was not specifically verbally authorized. Classic repaired the taillights, and also put in new bolts in the block, replaced the gaskets, replaced the fuel injectors, and installed a block heater to heat the engine on cold days, all of which was done to improve the slow starting and end the leak. We cannot say that had this work not been done Womack’s work alone would have corrected the problems. There is ample evidence in the record to support a determination that the work of both Classic and Womack contributed to the car’s repair. The trial court was not clearly wrong in its apparent determination that the work was authorized, and was of benefit to Martin.

Martin contends that because on two pri- or occasions, he had brought his Mercedes to the Classic location for repair of a water leak, he is entitled to set-off or compensation for the amount expended on those two prior occasions, and for inconvenience and frustration. However, Classic did not work on Mercedes automobiles at those times; it rented out stalls at its dealership in Baton Rouge to Axel’s German Imports, a Mercedes dealer in Jackson, Mississippi, to make repairs on Mercedes automobiles. The work orders on those two prior occasions, which were signed by Martin, clearly indicated that the name of the repairer was Axel. We do not find that Axel’s failure to repair the water leak on those two prior occasions is a basis of set-off against Classic.

With respect to attorney’s fees, we see that Martin himself admitted that he knew work orders provided for attorney’s fees. Therefore, his failure to read the work order in question is no defense.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: PER CURIAM.

text:
    Willie Lee CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. WW-89.
    District Court of Appeal of Florida, First District.
    April 6, 1981.
    Michael E. Allen, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   REVERSED and remanded for new trial. Tascano v. State, 393 So.2d 540 (Fla.1980).

McCORD, ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.


text:
    Degusta Blake ZEIGLER, Appellant, v. STATE of Florida, Appellee.
    No. WW-151.
    District Court of Appeal of Florida, First District.
    April 6, 1981.
    Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

REVERSED and remanded for new trial. Tascano v. State, 393 So.2d 540 (Fla.1980).

McCORD, ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.


text:
    Lanier MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. UU-416.
    District Court of Appeal of Florida, First District.
    April 7, 1981.
    Michael E. Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., for appellee.
   PER CURIAM.

REVERSED and remanded for new trial. Tascano v. State, 393 So.2d 540 (Fla.1980).

McCORD, ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.


text:
    Joseph JOHNSON, Jr. v. CONTINENTAL INSURANCE COMPANIES et al.
    No. 14062.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.
    Gordon Hackman, Atty. at Law, Boutte, for plaintiff and appellant.
    Sidney L. Patín, Atty. at Law, Houma, for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

The sole issue on this appeal is whether future workmen’s compensation payments should be accelerated under La.R.S. 23:1333 because the employer’s insurer failed to pay compensation benefits to plaintiff for six successive weeks. The trial court held that payments should not be accelerated and dismissed plaintiff’s rule. The plaintiff took this appeal.

Plaintiff Johnson was injured in the course and scope of his employment on August 14, 1978. From the time of the accident until August, 1979, workmen’s compensation payments were made by the insurance company. Benefits were terminated at the end of August, 1979, because the defendant believed that the plaintiff was no longer eligible for them. Plaintiff filed suit seeking reinstatement of benefits, medical expenses, penalties and attorney’s fees. On March 26, 1980, the trial court ordered the defendants to pay weekly benefits of $130.00 during the period of plaintiff’s disability, not to exceed 450 weeks, expert fees of $600.00 and medical expenses. The defendants timely moved for a new trial on the issue of disability but the motion was denied, with the notice of judgment being mailed on May 30, 1980.

On June 5, 1980, an adjuster for Continental Insurance Company requested issuance of a draft to the plaintiff for all unpaid compensation plus interest through June 9,1980. At the same time the adjuster requested this payment, she made a notation on the written request that weekly compensation benefits should be resumed. The draft was issued to plaintiff but an administrative error at the insurance company’s office resulted in the failure to begin payment of the weekly compensation checks. The error was discovered on July 21,1980, at which time the company made a lump sum payment of $910.00 to the plaintiff to cover the seven week period which had transpired. Weekly payments were resumed thereafter.

Some four days after he received the $910.00 check bringing the weekly benefits up to date, the plaintiff filed the motion to accelerate all overdue and future payments. The matter was heard on August 22, 1980, and the trial court rendered this judgment in. favor of the defendants.

In reasons for judgment, the trial court said the statute relied upon by the plaintiff, La.R.S. 23:1333, applies only in the case of an employer who does not have insurance under the workmen’s compensation statute. Additionally, the trial court held that the statute only penalizes a “willful refusal” to pay benefits for a period of six successive weeks. The court held that “there is no willful refusal here in this case.” He found that the insurance company’s error was in good faith.

The plaintiff contends that the issue on appeal is whether demand is required before the acceleration penalty can be invoked.

La.R.S. 23:1333 provides:

“If the employer against whom a judgment awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; but if the employee or his dependant is adequately protected by insurance and receives payments thereunder this right shall not accrue.”

In Lytell v. Strickland Transportation Company, Inc., 373 So.2d 138 (La.1979), the court stated that La.R.S. 23:1333 “provides for a penalty against any employer who does not have adequate insurance protecting his employees and who, despite judg- ’ ment being awarded against him, still fails for six successive weeks to pay workmen’s compensation benefits so awarded.” 373 So.2d at 140. In a footnote, the Lytell court cited with ostensible favor earlier decisions which required that the employer’s failure to pay benefits for six successive weeks must be willful and that an employee who seeks to invoke the penalty must make a prior demand for the unpaid sums. See Mason v. Costanza, 166 La. 323, 117 So. 240 (1928); Eisel v. Caddo Transfer and Warehouse Company, 11 La.App. 408, 123 So. 496 (La.App. 2nd Cir.1929); see also Kirby v. Crystal Oil Refining Corporation, 14 La. 115, 129 So. 385 (La.App. 2nd Cir.1930). The Fourth Circuit has also held that the statute only penalizes willfulness that has endured through six successive installments. Bennett v. St. Louis Hotel, 341 So.2d 642 (La.App. 4th Cir.1977).

We, too, find that the purpose of the penalty statute will be effectuated only if the penalty provision is applied against employers who willfully refuse to pay the installment payments. A good faith mistake by the insurance company in failing to make the payments should not result in a penalty being invoked against the employer or the insurance company. We thus need not decide whether Section 1333 is applicable to an employer whose workmen’s compensation carrier fails to make the payments or whether prior demand is always required before the penalty provision can be invoked.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed. The plaintiff will bear the cost of this appeal.

AFFIRMED.


author: PONDER, Judge. EDWARDS, Judge,

text:
    Robert HOLLAND et al. v. HOME INSURANCE COMPANY et al.
    No. 14043.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.
    Writ Denied June 5,1981.

      Robert J. Mack, Hammond, for plaintiffs-appellants Robert Holland and Ellen Holland.
    Joseph F. Keogh, and John R. Keogh, Baton Rouge, for defendants-appellees Home Ins. Co., Welmon A. Harris and Gulf Coast Pre Mix Mud, Inc.
    Before LOTTINGER, EDWARDS a’nd PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the dismissal of her suit for damages resulting from an in-tersectional collision.

The sole issue is plaintiff’s contributory negligence.

We affirm.

Plaintiff was proceeding north in the inside lane of a four-lane divided highway at approximately fifty miles per hour. The weather was misty and the road slippery. Approaching a blinking yellow light, plaintiff observed from some distance defendant’s tractor-trailer rig slowly entering the intersection. A red blinking light and a stop sign controlled traffic entering from the side road. Plaintiff reduced her speed to forty-five miles per hour, but continued into the intersection, assuming defendant would stop in the median. Defendant, on reaching the median, observed plaintiff’s approach, but thought he could “beat her.” Plaintiff struck the rear of defendant’s rig.

The trial court found defendant negligent but barred plaintiff’s recovery because of her own contributory negligence.

Plaintiff claims she was not contributorily negligent. Citing Koob v. Cooperative Cab Co., 213 La. 903, 35 So.2d 849 (La.1948) and Duchmann v. Allstate Ins. Co., 389 So.2d 896 (La.App. 4th Cir. 1980), she argues that a motorist on a right-of-way street, approaching an intersection where traffic is required to come to a complete stop before entering the intersection, can assume that an approaching driver will stop before entering the intersection, until it becomes apparent that the latter driver is not going to observe the law. We find the cases inapplicable. A motorist approaching a flashing yellow light must exercise a greater degree of care and vigilance. LSA-R.S. 32:234; Pederson v. Schenck, 204 So.2d 316 (La.App. 1st Cir. 1967). A driver approaching a flashing yellow light may ordinarily rely on the fact that a driver approaching a flashing red light will stop before entering the intersection, but he is under a duty to exercise caution and vigilance so that he may ascertain whether he can cross with safety. Great American Insurance Company v. W. O. Turnage, 339 So.2d 1322, (La.App. 1st Cir. 1976).

We find no error in the court’s conclusion that plaintiff’s actions fell below this standard. Fully aware that defendant’s forty-seven foot tractor-trailer rig was proceeding across the intersection and would block all traffic, plaintiff continued .into the intersection on the assumption that the other driver would stop at the median. Caution and vigilance required plaintiff to slow and even stop her vehicle until she was sure that he would stop.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

EDWARDS, Judge,

dissents.

I respectfully dissent.

Plaintiff was not ever speeding — prior to the accident, she slowed down even further — a cautious maneuver in obedience to a caution light. She saw the defendant’s truck and reasonably believed he would not pull out in front of her. He said he thought he could “beat her across the road” — Airline Highway, no less!

To find plaintiff contributorily negligent is clearly wrong.

      . LSA-R.S. 32:234 (in part):
      “A. Whenever an illuminated flashing red or yellow signal is used in a traffic sign or signal, it shall require obedience by vehicular traffic as follows:
      (1) FLASHING RED (STOP SIGNAL)— When a red lens is illuminated with rapid intermittent flashes, drivers of vehicles shall stop before entering the nearest cross-walk at an intersection or at a limit line when marked, or, if none, then before entering the intersection, and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign.
      (2) FLASHING YELLOW OR AMBER (CAUTION SIGNAL) — When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through or past such signal only with caution.”


author: SMITH, Presiding Justice,

text:
    DEPOSIT GUARANTY NATIONAL BANK v. E. Q. SMITH PLUMBING & HEATING, INC. et al.
    No. 52198.
    Supreme Court of Mississippi.
    March 25, 1981.
    Robert C. Cannada and Stephen W. Ro-senblatt, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellant.
    William J. Johnson and Jerry L. Mills, Johnson & Mills, Clinton, for appellee.
   ON MOTION OF APPELLANT TO CORRECT JUDGMENT AND RECALL MANDATE

SMITH, Presiding Justice,

for the Court:

There came on for hearing before the Court, sitting en banc, the motion of Deposit Guaranty National Bank, appellant, to correct judgment and recall the mandate dated January 22, 1981, together with the answer thereto of E. Q. Smith Plumbing & Heating, Inc., appellee.

The Court, having examined and considered said motion and answer, together with the Court’s opinion heretofore handed down in this case on November 26,1980,392 So.2d 208, and the mandate issued on January 22, 1981 pursuant thereto, finds that appellant and appellee are in agreement that the mandate is incorrect and should be recalled and that a new and corrected mandate should be issued, although said parties are not in agreement as to what the latter should provide and order.

Having considered the said opinion, the mandate dated January 22, 1981, the motion of appellant and response of appel-lee thereto, we find that, because of an ambiguity in our said opinion, said mandate did not correctly and adequately reflect the decision and judgment of this Court, and that the motion of appellant to correct judgment and recall the said mandate should be, and is, sustained and the said mandate of January 22, 1981 is withdrawn and recalled.

In order more fully and accurately to reflect the decision and judgment of this Court, a new mandate is ordered to issue, said new mandate to set out that it is the decision of this Court that the decision and judgment of the Circuit Court of Hinds County is affirmed in part and reversed in part, as follows:

We affirm the action and judgment of the Circuit Court that:

(1) The lien of Deposit Guaranty National Bank under its deed of trust on Lot 196 was a first, paramount and superior lien thereon.

(2) The sale of said Lot 196 under conventional or statutory foreclosure of said deed of trust cut off and extinguished the liens of laborers and materialmen on said Lot 196.

The said circuit court erred and we reverse its decision and judgment which held:

(1) That the lien on said Lot 196 of E. Q. Smith Plumbing & Heating, Inc. was not cut off and extinguished by said conventional and statutory foreclosure sale under said deed of trust.

(2) That a judicial sale was necessary to cut off and extinguish the lien of said E. Q. Smith Plumbing & Heating, Inc. on said Lot 196.

(3) That E. Q. Smith Plumbing & Heating, Inc. notwithstanding said foreclosure sale, has a valid or enforceable lien on said Lot 196.

As to each of said above matters the decision and judgment of said circuit court is reversed and judgment is entered here that the lien of said E. Q. Smith Plumbing & Heating, Inc. on said Lot 196 was cut off and extinguished by said foreclosure sale and said E. Q. Smith Plumbing & Heating, Inc. has no lien upon said Lot 196.

We direct that the foregoing be published in the Mississippi reports immediately following the opinion in this case of November 26, 1980 as an addendum thereto and as a clarification of the decision of this Court in this case, and further direct that a new mandate issue in keeping herewith.

Motion to correct judgment and recall mandate sustained.

THE CASE IS AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

All Justices concur.