author: LABORDE, Justice Ad Hoc.

text:
    STATE of Louisiana v. Raymond ROCHON.
    No. 80-KA-1723.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., L. Paul Gianfaia, Asst. Dist. Atty., for plaintiff-appellee.
    Bertrand DeBlanc, Lafayette, for defendant-appellant.

       Blanche, J., did not participate in rehearing.

   LABORDE, Justice Ad Hoc.

Defendant Raymond Rochon was indicted by an Acadia Parish Grand Jury in connection with the April 30, 1978 aggravated rape of one Gloria Ann Francis, a violation of La.R.S. 14:42. Following trial before a twelve member jury, defendant was convicted and sentenced to life imprisonment at hard labor. The present appeal urges five arguments as grounds for reversal of the accused’s conviction and sentence.

STATEMENT OF FACTS

During the late evening of April 29th, 1978, defendant picked up Carol Washington and Gloria Ann Francis under the pretext of giving them a ride to a nearby sandwich shop in Rayne, Louisiana. Instead, defendant drove to a dark gravel road outside of Rayne, stopped the car, produced a rifle and, after firing several shots near the victims, forced each of them to have sexual intercourse with him. After this incident, defendant then drove the pair back to Rayne, where they exited the vehicle and ran to a nearby house.

Defendant was apprehended shortly thereafter and pleaded not guilty to charges of aggravated rape at his arraignment on May 11, 1978. However, subsequent prosecution of the accused was delayed when a court-appointed sanity commission twice concluded that defendant was incapable of understanding the nature of the proceedings against him and that he was unable to assist in the preparation of his defense. Following lengthy treatment in the Forensic Division of the East Louisiana State Hospital, the accused’s psychotic illness was brought under control through use of medication and he was adjudged competent to stand trial. At the conclusion of this latest competency hearing on March 27, 1979, defendant withdrew his previous plea of not guilty and tendered to the court a plea of not guilty and not guilty by reason of insanity.

As the accused’s trial began on December 6, 1979, the selection of prospective jurors was repeatedly interrupted by the defendant’s disruptive behavior. Immediately pri- or to the start of voir dire examination, the courtroom was cleared and the trial court cautioned defendant to remain quietly seated during the course of trial. Defendant ignored the court’s warning, interrupting voir dire examination just moments later with the following protestation:

MR. ROCHON: I don’t want this attorney ... because they’re not going to represent me very well, and I can’t be proved innocent on very well. They’re not even familiar with my case, and they’re not going to represent me, so you do what you want.

For this outburst, defendant was held in contempt, and, outside of the jury’s presence, again instructed to behave. However, defendant responded only by raising his shirt and scratching his navel.

The state and the defense then completed voir dire examination of the first group of prospective jurors, ten of whom were selected to serve. No sooner were these jurors sworn than defendant resumed his disruptive antics, this time by removing all of his clothes in open court. Jurors and prospective jurors were quickly hustled out of the courtroom and defendant was again held in contempt. To prevent a repetition of this behavior, the trial court ordered that defendant be placed in an adjacent room where a full mechanical sound system was installed which would enable the defendant to hear all of the proceedings taking place in the courtroom. Accompanied by John Craton, one of his court-appointed attorneys, defendant was then led into the adjacent room, where he was handcuffed and shackled. A deputy sheriff was also on hand to guard the accused.

Before voir dire examination was resumed, Judge Fontenot questioned those jurors who had already been seated as to whether they could set aside defendant’s behavior and decide the case solely on the basis of evidence adduced at trial. Each juror responded affirmatively. Jury selection was then completed and court was adjourned for the day.

Court was reconvened on the following day. On the request of counsel for the defendant, the Clerk announced that defendant had been rearraigned following his most recent competency hearing, at which time he had entered a plea of not guilty and not guilty by reason of insanity. Though both counsel for the state and for the defendant claimed surprise at this plea, neither side requested either a mistrial or a recess. The defense did request that voir dire examination be reopened to permit questions as to the jurors’ understanding of the defense burden of proof in an insanity case and their ability properly to apply a preponderance of evidence standard in face of an insanity defense.

Following the denial of this motion, defense counsel moved for a mistrial, claiming that the accused was again unable to assist in his defense and that he did not understand the nature of the proceedings against him. In response, the state requested that members of the previously-appointed sanity commission re-examine the defendant and report their findings to the court. When the defense indicated its agreement with this procedure, Dr. Wyatt, a psychiatrist of fifteen years experience, and Dr. Robert McManus, the Acadia Parish Coroner, were summoned to the courthouse.

After completing his examination of defendant, Dr. Wyatt was called to testify in support of defendant’s motion for mistrial. Dr. Wyatt stated that he had previously examined the defendant on December 11, 1978 and had found at that time that the defendant was unable to assist in his defense in this case. Subsequently, he reexamined the defendant on March 27, 1979, whereupon Dr. Wyatt concluded:

“Since my last examination, December 1978, the patient had had in-patient treatment at the psychiatric hospital. There is no overt evidence of psychosis at this particular time. He is maintained on chemotherapy, which helps to control the symptoms. He is more organized in his thinking, but still has some limitations in his ability to recall things during the time when he was more acutely disturbed. However, I feel he is improved enough to assist in his defense.”

Dr. Wyatt saw defendant on three or four more occasions between March 27,1979 and September, 1979. On each occasion, he felt that defendant “had appropriate concern” about his upcoming trial.

In connection with Judge Fontenot’s request that he determine the accused’s present capacity to proceed with trial, Dr. Wyatt twice examined the defendant — on December 6, 1979, the first day of trial, for about twenty minutes, and again on December 7, 1979 for about forty-five minutes. As regards these examinations, Dr. Wyatt testified as follows:

Q. Would you give us the approximate time and location and circumstances under which you spoke to Mr. Rochon yesterday?
A. I spoke to him at the Judge’s request here in the outer Chamber, and as I understood it, the purpose of the request of the Judge was to see if I could calm Mr. Rochon down, and I did go in and tried to engage him in a conversation, and it was obvious that he was quite agitated, extremely distressed, quite angry, rejecting. He would not really look directly at me, nor would he respond verbally to any direct questions. I quite often had the feeling that he was preoccupied and did not hear some of the things I addressed to him, but, of course, again, that’s speculation, because I have no way of proving that. I had no way of conducting, in any manner, an organized mental status examination because of his inaccessibility, or his refusal.
Q. You did in fact were able to talk to him about certain matters, is that correct?
A. I asked questions. I got very little in response.
Q. Now, you stated that you did not have an opportunity to conduct an in-depth analysis of Mr. Rochon yesterday. Since that time have you visited, and we are now twelve thirty-five (12:35) of December 7th? Have you had an occasion since then to, since yesterday, to conduct a more detailed analysis of Mr. Rochon?
A. I spent more time with him today; would say a total of about forty-five (45) minutes today whereas yesterday was much briefer, fifteen (15), maybe twenty (20).
Q. As a result of you spending the forty-five (45) minutes in Chambers with Mr. Rochon, were you able to come to any conclusions regarding his present ability to assist in his defense at this time, considering that the trial is now in progress and we have to assist at the present time?
A. It is my opinion that he is not capable of assisting in his defense.
Q. Doctor, are these self-induced just because he doesn’t want to, or are there any psychotic or mental illnesses that this is a result of?
A. As I said earlier, my best opinion now would be that he is experiencing an exascerbation of some psychotic illness, and that this is interfering with his ability to relate in a fashion that would be helpful.

After direct examination by defendant’s counsel and cross by the state, the trial court conducted its own examination of Dr. Wyatt. In response to the court’s questions, Dr. Wyatt stated that he believed the defendant to be of low average intelligence. Dr. Wyatt also conceded that defendant's behavior might be intentionally calculated to obstruct further proceedings:

THE COURT. If I were to tell you that Mr. Rochon, or it seems that Mr. Rochon was very articulate at the beginning of the trial, where he articulated all of his rights or many of them as contained in the United States Constitution, would that shed some light on the subject? A. Certainly, it would be meaningful. THE COURT. It would be meaningful to the extent that we could somewhat assume that Mr. Rochon knew where he was, knew that he was in a Courtroom and not only that, that he was bright enough to know that he had the right to remain in this Courtroom to hear all of the testimony.
A. I agree.
THE COURT. And if that he stated that and made that announcement to the Court, wouldn’t that indicate that this later subsequent pattern of behavior which was totally disruptive was calculated?
A. With that sequence and background, it would give more credence to that, that’s true.
THE COURT. If he was totally frustrated and became hostile, when he saw, for example, that he was going to have to go to trial.
A. That’s true. I would agree.
THE COURT. Even if we assume that Mr. Rochon suffers from paranoia-schizophrenia psychotic disorder, are paranoid-schizophrenics always completely out of touch with reality?
A. No. No, they’re not. This is a— there can be, you know, a remission of symptoms, even spontaneous at times. This can happen without treatment. The majority of them though the remission takes place under treatment, and the chemotherapy, as we’ve discussed, is the primary mode of treatment because it is the thought or mind altering drug.

However, even considering the behavioral patterns described by the Court, Dr. Wyatt again stated that, in his opinion, defendant was incapable of assisting in his defense.

The remaining member of the Sanity Commission, Dr. Robert McManus, was also called to testify in support of defendant’s mistrial motion. On direct examination, Dr. McManus testified that he had examined the defendant on numerous occasions in the past and that he had treated him in the Parish Jail for other medical problems. He testified that he too had examined the defendant on December 12, 1978 and, at that time, felt him to be in need of psychiatric care. Subsequently, in March, 1979, he reexamined the defendant and concluded that his improvement was such as to enable him to stand trial at that time. As a result of his later examination on December 7, 1979, Dr. McManus felt that defendant would not cooperate with his attorneys, but he explained that his behavior was largely “play acting” on the part of defendant. Dr. McManus further stated that he believed that defendant had the mental capacity and ability to put over such “play acting.”

On the basis of this testimony, as well as her own observations of the accused’s behavior, Judge Fontenot ruled that the defendant was fully competent to stand trial. In so ruling, the court necessarily denied defendant’s motion for mistrial. It is this denial which forms the heart of defendant’s first argument on appeal.

ASSIGNMENT OF ERROR NO. 1

By this assignment, defendant contends that the trial court erred in finding that the accused had sufficient mental capacity to proceed with trial when defendant’s behavior and expert psychiatric testimony indicated otherwise.

According to La.C.Cr.P. Art. 641, mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant lacks the capacity to understand the proceedings against him or to assist in his defense. Jurisprudence interpreting this article has held that the defendant carries the burden of establishing that he lacks the capacity to understand the object, nature and consequences of the proceedings against him, and that he is unable, in a rational as well as a factual manner, to consult with counsel in a meaningful way. State v. Weber, 364 So.2d 952 (La.1978); State v. Hamilton, 373 So.2d 179 (La.1979). The trial court’s determination of defendant’s mental capacity is entitled to great weight on appeal, but, as due process requires that a defendant be competent to stand trial, Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975), this Court must examine the record to determine if the judge abused her discretion. State v. Bennett, 345 So.2d 1129 (La.1977); State v. Weber, supra.

In State v. Bennett, supra, at 1138, this Court outlined the appropriate factors that the trial judge should consider in assessing the defendant’s capacity to proceed:

“The decision as to a defendant’s competency to stand trial should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case and the gravity of the decisions with which he is faced.... Appropriate considerations in determining whether the accused is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. Facts to consider in determining an accused’s ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to detei’iorate under the stress of trial....”

In the instant case, the defense failed to inquire as to the accused’s comprehension of the word “rape” or his understanding of an insanity plea. However, at the March 27th sanity hearing, both Dr. Wyatt and Dr. McManus stated that defendant could appreciate the seriousness of a rape charge as well as the consequences of conviction. At that time, defendant understood the nature of a rape charge and entered a plea of not guilty and not guilty by reason of insanity.

In large part, the inquiry into defendant’s competence was thwarted by his failure to respond to questions. For this reason, much of the doctors’ examination centered upon the accused’s ability to understand the questions which were put to him. In this regard, Dr. Wyatt felt that defendant’s failure to respond was due to his preoccupation with other matters. Dr. McManus disagreed, noting that defendant had shown a greater willingness to respond to questions from Dr. Wyatt than from himself. In view of his past experiences with defendant, Dr. McManus believed that defendant was wilfully refusing to cooperate. While Dr. McManus conceded that this attitude might hamper defense efforts, he emphasized that this result was not caused by any inability on defendant’s part:

THE COURT. So, it would be uncommon, if something made him unhappy, like having to go to trial, if he would experience what we experienced in this Courtroom yesterday, namely, loud talking, screaming and yelling and taking his pants off.
A. This has been — I think if you look back over his history and could get some of the people out at the jail, you’d find this has been his pattern for years. We’ve had him here for ten (10) years, off and on. We’ve had problems with him for ten (10) years.
THE COURT. If something doesn’t go his way he — (interrupted)
A. He has a tendency to pout and not answer questions.
THE COURT. That doesn’t mean that he didn’t understand the questions I was asking him though, does it?
A. No, ma’am.
THE COURT. In other words, it’s your candid, or our preferred opinion, that he knows where he is, he understands what’s going on here, and he just absolutely refuses to assist — (Interrupted)
A. Yes, I lean towards the fact that I think a lot of this is showmanship on his part, notwithstanding the fact that he probably does, and we certainly have to agree that he has some psychosis, but I think he’s very manipulative. I think he’s manipulated people in the past. It’s my opinion he’s manipulating us today. There’s only one other question I’d like to say. I asked him in there, specifically asked him, if what he wanted was for us to take the stand and say the he was unable to proceed, so that the Judge would then either declare a mistrial, or recess things to where he would have to be sent back to the hospital, and then, be brought back again for retrial, even though most of the time he wouldn’t even look at me after I asked him, all he did this time was raise his head and a little faint smile. So, I think I got through to him, and this was one of the things that made me think perhaps that he was — he heard what we were saying.
THE COURT. He understood you?
A. Yes.

Indeed, defendant appeared quite articulate when, at the start of voir dire examination, he clearly expressed his intent to obstruct further proceedings:

MR. ROCHON: I’ll sit quietly, but when I feel that I’m misrepresented, and when I feel that my rights have been violated, I’ll speak up for my rights, and if that’s wrong, take me where you want to take me.
THE COURT: All right, Mr. Rochon. I’m suggesting to you out of the presence of anyone who may serve on this jury that I will not tolerate any conduct from you which is the least bit disruptive. Do you understand that?...
MR. ROCHON: If you’re telling me to sit down and shut up when it’s right or wrong, I can’t do that. Because if it’s right, I’m going to shut up. If it’s wrong, I’m gonna speak, because I feel that I have freedom of speech.
THE COURT: Fine. You speak up to your lawyer, if you feel that anything is transpiring that is not correct.
MR. ROCHON: If he don’t want to speak to what I’m saying, I’ll speak for myself .... Your Honor, maybe I’m speaking out of turn, but I feel that I’m not — seems as though this a free trial, or whatever. I’m speaking in front of a Judge and in front of my attorney, and I feel and believe that all of my witnesses and people that are concerned of this — of what I’m accused of should be available to hear what is going on. I mean, why should it be a private court. I mean, I’m no special person; I’m an ordinary person, I mean why shouldn’t everybody be ran out, and why shouldn’t everybody hear what’s going on. If I misconduct myself, well, I feel and believe that they should know that I misconduct myself; I fail to believe that I have misconducted myself.
(Emphasis supplied.)

On the basis of this evidence, it is difficult to say that the trial court abused its discretion in concluding that defendant’s aberrant behavior and apparent unresponsiveness formed a deliberate scheme on his part to prevent further proceedings against him. Though the trial court was unable to delve into all the factors enumerated by Bennett, this inability was clearly attributable to the accused, who seemed quite capable of assisting in his own defense. Under these circumstances, the trial court’s refusal to order a mistrial on grounds of defendant’s incapacity was not erroneous.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, defendant claims that the trial court erred in denying his request to reopen voir dire examination when counsel for both the state and the defense had conducted such examination under the erroneous belief that the accused had entered a plea of not guilty rather than a plea of not guilty and not guilty by reason of insanity. Defendant argues that the trial court’s refusal to permit further inquiry into the jurors’ understanding of the defense burden in an insanity case effectively undermined his right to conduct a full voir dire examination. La.Const. 1974, Art. 1, § 17; Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931); State v. Dixon, 365 So.2d 1310 (La.1978).

This Court accepted a similar defense argument in the recent case of State v. Hawkins, 376 So.2d 943 (La.1979). In that case, the accused urged insanity in defense to charges of attempted murder. Despite this line of defense, the trial court refused to permit defense counsel to inquire into a prospective juror’s understanding of the term “preponderance of the evidence” as distinguished from “proof beyond a reasonable doubt.” Holding that such a restriction of voir dire was erroneous, this court stated:

“A defendant who pleads insanity as a defense is certainly entitled to have jurors who understand the burden of proof required to prove his plea of insanity at the time of the commission of the offense. Even those of us purportedly well-versed and trained in legal terminology are not without difficulty in understanding “preponderance of evidence” vis a vis “beyond a reasonable doubt” as a degree of proof. On the assumption that jurors might not understand these critical legal principles so vital to his defense, it follows that the trial judge erred when he cut off all examination by the defense on this issue.
We have previously rejected the contention that restrictions on voir dire examination concerning the presumption of innocence were cured by a general instruction that the jurors must follow the law as given to them by the court. State v. Monroe, 329 So.2d 193 (La.1975). Therefore, the judge’s explanation of the law to the jurors and their answer under oath to accept and apply it satisfies only a part of the inquiry. The other part is whether or not the juror really understood the legal principle involved. Counsel should have had the opportunity to assure himself that the juror did understand the vital legal principal at issue here.”
376 So.2d at 950.

Unlike Hawkins, the defense in the case at bar failed to introduce any evidence to establish the accused’s insanity at the time of the offense and, despite defendant’s plea, made no effort to urge this defense in closing argument. The accused’s disruptive trial court behavior properly had a bearing only on the issue of capacity to proceed and therefore, did little to suggest the defendant’s insanity at the time of the offense. Under these circumstances, the refusal to reopen voir dire examination in no way prejudiced the defense. La.C.Cr.P. Art. 921.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

By this assignment defendant argues that the trial court erred in permitting Detective Kenneth Goss to read into evidence a statement taken from the victim, Gloria Ann Francis, on grounds that said statement contained references to the rape of Carol Washington.

This contention is totally without merit. As noted previously, the defendant abducted both women under the pretext of providing transportation to a nearby sandwich shop. He then drove to a dark gravel road outside of Rayne, where he forced each woman to engage in sexual relations with him. In this factual scenario, the aggravated rape of Gloria Ann Francis which forms the basis of the present charge and the subsequent rape of Carol Washington formed one continuous transaction. As such, evidence of the rape of Ms. Washington was properly admitted as part of the res gestae of the charged offense. La.R.S. 15:447, 15:448; State v. Joseph, 341 So.2d 861 (La.1977); State v. Tornabene, 337 So.2d 214 (La.1976).

In any event, this “other crimes” objection is raised for the first time in brief to this Court. Since no contemporaneous objection was raised by the defense at trial, the error alleged herein has not been properly preserved for review by this Court. La.C.Cr.P. Art. 841; State v. O’Blanc, 346 So.2d 686 (La.1977); State v. Davis, 357 So.2d 1125 (La.1978).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 7

This assignment concerns the denial of defendant’s oral motion to discharge his trial counsel, Kenneth Privat.

Following selection of the initial panel of prospective jurors, defendant’s objections to Mr. Privat’s continued representation in this matter were noted for the record. Though defendant failed to avail himself of the opportunity to explain the precise basis of this objection, it is apparent from defense counsel’s record statement that the accused had expressed a belief that Mr. Privat was not acting in his best interest. Construing these remarks as a motion to dismiss counsel, the trial court denied defendant’s request.

As trial proceeded, it became apparent that defendant and counsel were in serious disagreement as to the defense theory of the case. Not only did Mr. Privat claim to be unaware of his client’s previous insanity plea, but he also completely disregarded this line of defense in presenting the accused’s case to the jury. Viewed in this context, the defendant’s earlier protestations that Mr. Privat knew nothing about his case took on a somewhat prophetic character.

Nevertheless, it is generally held that a trial court does not abuse its discretion in refusing, on the morning of trial, to grant the accused’s motion to discharge his court-appointed counsel. State v. Wiggins, 337 So.2d 1172 (La.1976); State v. Anthony, 347 So.2d 483 (La.1977). Under these decisions, the delay in raising this contention until the day of trial is viewed as signaling an intent to interfere with the fair administration of justice.

In the case at bar, several factors suggest the use of the motion to dismiss counsel as a dilatory tactic. Defendant had selected Mr. Privat from a list of available attorneys to serve as his court-appointed counsel following his dismissal of two previously appointed attorneys, Jerry Harmon and T. Barret Harrington. Since the time of Mr. Privat’s appointment, the accused had appeared before the trial court on numerous occasions without any complaint made as to counsel’s representation. Defendant’s repeated disruptions of trial are also seriously suggestive of an intent to forestall further proceedings. In view of these factors, it is difficult to argue that the trial court abused its discretion in denying defendant’s motion to dismiss Mr. Pri-vat as his trial counsel.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 8, 9 and 10.

By these assignments, defendant contends that the trial court’s decision to remove him from the courtroom effectively deprived him of the right to be present during trial and to confront the witnesses against him. La.Const. 1974, Art. 1, § 16; La.C.Cr.P. Art. 831.

This contention is totally without merit. In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the United States Supreme Court held that “a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.” 90 S.Ct. at 1060. The Court went on to state three permissible ways of dealing with an obstreperous defendant: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.

In the case at bar, the accused was repeatedly warned to remain quietly seated during the course of voir dire examination and trial. In face of these warnings and a contempt citation, defendant clearly indicated an intent to continue his disruptive behavior. When the accused made good on this promise by disrobing in front of the jury, the trial court had little choice but to remove the defendant from the courtroom. However, in the present case, even this banishment was effected with the greatest possible respect for defendant’s rights. A sound system was set up in the anteroom where defendant was held so as to enable him to hear the proceedings against him. Furthermore, co-counsel John Craton sat with defendant during the entire trial, thereby providing a means by which defendant could communicate with his trial counsel, Kenneth Privat. Through use of these safeguards, the trial judge was able to maintain courtroom decorum with little infringement on the accused’s rights. Under these circumstances, the trial court did not commit reversible error in ordering defendant removed from the courtroom. State v. Burnette, 337 So.2d 1096 (La.1976) and State v. Passman, 345 So.2d 874 (La. 1977).

This assignment lacks merit.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

       Judges Guidry, Foret and Laborde of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Lemmon.

      . In Acadia Parish, the findings of a court-appointed sanity commission are reported by means of a form which parrots the factors enumerated in Bennett. By so structuring the competency inquiry, the trial court is deprived of any factual basis on which to base a finding of capacity to stand trial.

      . Following trial, the State was permitted to adduce evidence which showed that defendant had in fact conversed with his attorney on several occasions while seated in the court’s anteroom during trial.

      . In any event, the time for challenging jurors has passed where said jurors have already been seated and sworn. La.C.Cr.P. Art. 795; State v. Schmitt, 354 So.2d 1339 (La.1978). At this point, the defendant’s only available remedy was mistrial.

      . This objection arose when defense counsel attempted to impeach Ms. Francis’ credibility by calling Detective Goss to the stand to testify as to facts surrounding the taking of Ms. Francis’ original statement. At trial, Ms. Francis admitted giving a statement to Detective Goss, but claimed that the written statement in Goss’s possession did not accurately reflect her original story. At the insistence of the district attorney, Ms. Francis’ prior statement was read to the jury in its entirety. It was this procedure which was objected to by the defense. Tr., Vol. II, pp. 221-225. No “other crimes” objection was ever lodged. In fact, allusions to the rape of Ms. Washington had been made throughout trial.

      . This contention is urged at defendant’s request.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    Edward J. ALLOR v. BELDEN CORPORATION.
    No. 67243.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      Roy S. Halcomb, Jr., Broussard, Bolton & Halcomb, Alexandria, for plaintiff-applicant.
    Joseph Wilson, Gaharan and Wilson, Jena, for defendant-respondent.
   DENNIS, Justice.

In this workers’ compensation case, the injured worker suffered lumbosacral strain as a result of an on-the-job accident. Both the trial court and court of appeal awarded the plaintiff total temporary disability benefits calculated on the formula applicable for those employed on a “unit, piecework, commission or other basis.” La.R.S. 23:1021(7)(d). We believe that the lower courts erred in determining the extent of the plaintiff’s disability and the method for calculating his benefits. Accordingly, we must reverse with respect to these errors.

Allor, age 31, worked as a wire drawer for Belden Corporation and had been employed by that company approximately one year prior to his accident on March 16,1978. He had worked 15 years before the accident doing strenuous manual labor without any physical problems. Allor became stiff and sore at work the day before the accident, but his low back pain became intense while he was lifting heavy spools of wire on March 16. He notified his supervisor who made an appointment with Dr. Sirikul, a local general practitioner. Dr. Sirikul examined Allor on March 20 and March 23. He found the plaintiff suffered from muscle spasms and tenderness in the lumbo-sacral area. The doctor took X-rays of the claimant’s back which showed nothing abnormal. Dr. Sirikul diagnosed acute lumbo-sacral strain and referred Allor to Dr. Gam-burg, an orthopedic surgeon in Alexandria. Dr. Sirikul stated that he believed that Al-lor’s accident at work caused his back problems.

Dr. Gamburg treated Allor for several months and examined him numerous times. He confirmed Dr. Sirikul’s diagnosis of lum-bosacral strain. After three examinations, Dr. Gamburg found that the symptoms of Allor’s back condition, i. e., pain and restricted mobility, had disappeared, and he released him to work in May, 1978. Upon returning to work, Allor again experienced severe localized lower back pain and muscle spasms and had to be hospitalized. Dr. Gamburg and a consulting neurologist found no disc herniation or neurological abnormalities. Dr. Gamburg diagnosed the claimant’s condition as recurrent lumbo-sacral strain. The doctor testified that he thought Allor could again return to work as of July 19,1978 on a trial basis although he admitted that Allor’s symptoms could reappear if the claimant returned to work.

Allor tried a second time to resume work several weeks later but found that the pain recurred and was too severe to allow him to continue. He sought additional medical treatment, but because Dr. Gamburg had moved his practice, Allor was thereafter treated by Dr. Weiss, also an orthopedic surgeon. Dr. Weiss first saw Allor in August, 1978 and continued periodic examinations through March, 1979. He also confirmed earlier diagnoses of lumbosacral strain and prescribed a back brace for Allor to wear which seemed to help the claimant. It was his opinion that Allor should not attempt to return to his job as a wire drawer or to any other heavy manual labor. Although Dr. Weiss thought Allor’s lumbo-sacral strain would heal sufficiently by July, 1979 to allow him to be symptom-free and to pursue lighter work, the doctor predicted that Allor’s lumbosacral injury would most likely recur if he tried heavy manual work.

The virtually uncontradicted evidence of the attending physicians and of the lay witnesses prove that, following the work accident, the employee suffered painful symptoms typically related to a low back injury which will recur upon his attempt to return to his former occupation and which prevent his undertaking other heavy physical labor. The lower courts ruled that this evidence supported an award of benefits to the plaintiff only during the temporary period in which he manifested physical symptoms resulting from the work accident. The primary question before us is whether a causal connection between the work accident and the plaintiff’s permanent inability to return to heavy manual work has been shown by the plaintiff.

CAUSATION

The employee in a workers’ compensation proceeding has the burden of establishing the disability and causal relation with the employment accident by a preponderance of the evidence. Nevertheless, it is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover. The complaint need show only by a preponderance of the evidence that somehow the work accident caused the disability. Lucas v. Ins. Co. of North America, 342 So.2d 591, 595 (La. 1977); Malone & Johnson, Workers’ Compensation, § 252, p. 547 (2d ed. 1980).

On the specific issue of the causal connection between the accident and the disability, the claimant is entitled to the benefit of a presumption in certain cases. If an otherwise healthy worker suffers an accident at work and is thereafter disabled, it is presumed that there is a causal connection between the two, so long as the medical evidence establishes a reasonable possibility of such a connection. See Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978); Haughton v. Fireman’s Fund American Ins. Cos., 355 So.2d 927 (La.1978); Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977); Bertrand v. Coal Operators Cas. Co., 253 La. 1115, 221 So.2d 816 (1969); Malone & Johnson, supra, § 259, p. 572-3. This presumption is not conclusive, but it forces the defendant to come forward with sufficient contrary evidence to rebut it.

Also we note that an injured worker is still entitled to compensation even though the work accident would not have been disabling to the average healthy employee. Numerous disability awards to injured employees have been granted when the evidence showed that some preexisting deficiency contributed to the disabling consequences of a work accident, even though the disease or condition might have brought about disability in any event in its ordinary course of progress. E. g., Roberson v. Liberty Mut. Ins. Co., 316 So.2d 22 (La.App.3d Cir. 1975); Jones v. Douglas Public Service, 264 So.2d 267 (La.App.4th Cir. 1972); Lum v. Employers Mut. Liability Ins. Co. of Wisconsin, 216 So.2d 889 (La.App.2d Cir. 1968).

The defendant relies heavily on segments of Dr. Weiss’s testimony to rebut the plaintiff’s prima facie showing of a causal connection between the accident and the disability. The doctor refused to state that an accident precipitated the employee’s inability to return to heavy manual work because he had not been given a “history of a specific accident on the job.” He testified that he preferred to say that engaging in labor too heavy for a slight body had caused Allor’s disability. Dr. Weiss also stated at one point that Allor would not suffer “any permanent impairment” from his injury.

When read in the context of his whole testimony and the entire record, however, these passages of Dr. Weiss’s testimony do not constitute sufficient contrary evidence to rebut the presumption that there was a causal connection between Allor’s work accident and his disability. First, it is clear Dr. Weiss only meant that Allor would suffer no permanent impairment insofar as his ability to perform light physical work was concerned. He testified repeatedly that Al-lor should not return to his job as a wire drawer or other heavy manual labor because this would reactivate his lumbosacral injury. Second, it is understandable that Dr. Weiss was reluctant to relate Allor’s disability to an accident since the doctor did not have a “history of a specific accident on the job,” although it is hard to understand why he was without a history of an accident which was well documented by the other attending physicians. Third, when he was asked whether he would relate Allor’s “continued complaints” to a specific incident of heavy lifting, assuming that it occurred, the doctor said, “I think it is contributory [in] the sense that we know he got it, and that he will probably get it again if he goes back to doing heavy work.”

The thrust of Dr. Weiss’s testimony seems to be that Allor’s physical disability was inevitable given the claimant’s physique and work history. However, this does not prevent the claimant’s accident from being a legal cause of his disability. We have said, “[i]t is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor.” Parks v. Insurance Company of North America, 340 So.2d 276, 281 (La. 1976). See Bertrand v. Coal Operators Cas. Co., 253 La. 1115, 221 So.2d 816 (1969). We have held, moreover, that an accident which aggravates or accelerates a pre-existing condition is compensable even where disability is not caused by a single or specific incident. Parks v. Insurance Company of North America, supra, 340 So.2d 276; Chism v. Kaiser Aluminum & Chemical Corp., 332 So.2d 784 (La.1976).

In the present cast the timing of the proven disability can not be explained in any reasonable manner other than that the accident caused the disability. It is implausible to suggest that the disability would have occurred in the same manner and at the same time had the accident not occurred. Before his accident the plaintiff exhibited no disabling symptoms and adequately met the extreme physical demands of his employment. Allor passed his pre-employment physical with Belden. The lay testimony establishes that the claimant was a good worker. Wage records indicate that Allor’s output was consistently above that of the average wire drawer operator. After the accident and two attempts to return to work, the plaintiff is no longer able to perform his old job. Thus, we find not only did the claimant’s accident cause him to be totally disabled for the temporary period in which he experienced substantial pain, but also caused his permanent inability to engage in heavy manual work without recurrence of these disabling symptoms.

EXTENT OF DISABILITY

We next reach the question of the extent of the plaintiff’s disability. We find that Mr. Allor is now permanently and partially disabled within the meaning of La. R.S. 23:1221(3). We find that the preponderance of the evidence shows that Mr. Allor can no longer perform the “duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience.”

The medical testimony established that resumption of heavy manual labor would be detrimental to Mr. Allor’s health and likely cause recurrence of his back problems. Indeed, Mr. Allor tried twice unsuccessfully to resume work. Dr. Weiss advised against the claimant resuming work which required he£i.vy lifting, repeated bending or stooping, or standing for prolonged periods. Thus, any same or similar employment would be more physically demanding than the plaintiff could satisfactorily perform. Dr. Weiss did not rule out a wide range of jobs with lesser physical requirements however. It was his opinion that Mr. Allor could perform these type jobs without substantial pain or detriment to his health.

Mr. Allor completed ten and one-half years of school and obtained a high school equivalency degree. He has a varied work history having operated heavy equipment, driven trucks and wreckers, tended bar, and managed a service station. He was trained in the Marine Corps as a heavy equipment engineering mechanic. Also at the time of his accident, he was a cook in the Louisiana National Guard. He resigned his position after the accident during his period of severe pain. We do not find that the claimant has established a prima facie case of odd-lot status so as to be entitled to total, permanent disability benefits. His education, training, and physical condition are such that it cannot be said he is at a severe disadvantage in competing with others in any recognized labor market. See Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). We believe less strenuous jobs could be performed by the plaintiff without detriment to his health or incurring substantial pain. We agree with the lower courts that Mr. Allor was totally disabled until June 27, 1979 and that this total disability was only temporary.

COMPUTATION FORMULA FOR AVERAGE WEEKLY RATE

Both lower courts ruled that Mr. Allor was employed on a “unit, piecework, commission or other basis,” and thus, his average weekly wage should be calculated by resort to the formula provided in La.R.S. 23:1021(7)(d). It is undisputed that using the first formula, Mr. Allor is entitled to $99.28 weekly, whereas, if he is deemed an hourly worker, his weekly benefit amount would be $130, the maximum allowed.

While employed at Belden as a wire drawer, Mr. Allor received a base hourly rate of $3.325. He received overtime pay for any hours worked over forty each week at one and one-half his base hourly rate. In addition to the above, Mr. Allor got a “production percentage” depending on the amount of wire he produced. This incentive bonus was a varying percentage of his base hourly rate. The court of appeal found that in the four-week period immediately preceding his accident, the plaintiff’s production percentage averaged 40%. Allor v. Belden Corp., 382 So.2d 206, 209 (La. App.3d Cir. 1980). This can be equated to $1.33 more an hour (40% X $3.325) thus making Mr. Allor’s hourly rate $4.655. Id. Despite the relative ease of making the above computation, the court of appeal, nevertheless, found that Section 1021(7)(a) “clearly contemplates a fixed, definite and unvariable rate of pay.” Allor v. Belden, supra, 382 So.2d at 211. Overtime pay must be figured in the Section 1201(7)(a) calculation and often varies from week to week causing at least as complicated calculations as the production percentage involved here. See, e. g., Skinner v. Boise Southern Co., 364 So.2d 223 (La.App.3d Cir. 1978). The court of appeal cited no authority for its contention that to be deemed an hourly worker one must receive a fixed and unvariable rate of pay, nor do we find any. We think the varying calculations for determining a worker’s average weekly wage reflect a legislative attempt to protect adequately and equitably the earning capacity of injured workers who are compensated in differing ways. We find no intention by the legislature to make Section 1021(7)(d) a favored residual category so that all workers not precisely fitting any other category should be herded into it, indeed, the opposite seems true. “[Sub-section (d)] was apparently intended for situations in which the employee is paid solely on a unit or commission basis.” Malone & Johnson, Workers Compensation § 323 in 14 Louisiana Civil Law Treatise 91 (1980). [emphasis added] Professors Malone and Johnson further state that the multiplier of four in sub-section (d) was a concession to the logging industry in which many employees are paid on a per unit basis. Id. pp. 91, 100-101. It would be inequitable to deny Mr. Allor the full benefit of his production percentage which averages 40% of his hourly rate, nor would it clearly reflect his earning capacity. Thus, Mr. Allor’s benefits should be computed under 1021(7)(a) since he is paid on an hourly basis. It is conceded that this will result in compensation payments of $130 per week minus wages Mr. Allor earns in any week after June 27, 1979 in accordance with La.R.S. 23:1221(3).

In summary, we conclude that the plaintiff is entitled to total, temporary disability compensation from the date of his accident, March 16, 1978, until June 27, 1979 at the rate of $130.00 per week. After June 27, 1979, the plaintiff is entitled to permanent, partial disability compensation in the amount of $130.00 per week minus any wages earned by him during the week. We find no error in the court of appeal’s award of penalties, attorney’s fees, medical, and travel expenses and thus affirm this award. We order that an additional $500.00 in attorney’s fees be assessed against the defendant to cover the expenses incurred in prosecuting this appeal.

COURT OF APPEAL REVERSED IN PART, AFFIRMED IN PART, AND AMENDED.


author: CALOGERO, Justice.

text:
    Luke BONURA, Jr. v. COMMERCIAL UNION INSURANCE COMPANY et al.
    No. 67585.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Frank J. D’Amico, Gerald E. Meunier, Vincent J. Glorioso, Jr., Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiff-applicant.
    Wood Brown, III, Montgomery, Barnett, Brown & Read, James H. Drury, Drury, Lozes & Curry, New Orleans, for defendants-respondents.
   CALOGERO, Justice.

In this case we must decide whether the Missouri manufacturer of a dredge is liable to a longshoreman who was injured while the dredge was in the process of being loaded onto a ship in the port of New Orleans. The basic facts of the case are undisputed.

Dixie Dredge Company of St. Louis, Missouri, built a dredge for use in South America. The dredge was loaded onto a car of the Illinois Central Gulf Railroad and shipped to New Orleans. In New Orleans, Texla Stevedores, Inc., was responsible for loading the dredge onto a National Bulk Carriers ship. During the loading process a plywood covering over the middle section of the dredge (it was shipped in three parts) collapsed and plaintiff fell into the dredge, injuring himself.

Plaintiff sued all of the companies involved in the manufacture, shipment and loading of the dredge. In addition he sued Commercial Union Insurance Company as the insurer of Edward Cook, plaintiff’s supervisor during the loading operation and a Texla “executive officer”, under Commercial’s liability insurance policy issued to Texla. Mr. Cook died as a result of the same accident in which plaintiff was injured. Prior to trial National Bulk Carriers compromised and settled with plaintiff. Illinois Central Gulf Railroad was dismissed from the suit upon motion for summary judgment.

The bench trial against the two remaining defendants resulted in a judgment in favor of plaintiff against Dixie Dredge Company and Commercial Union Insurance Company in solido in the sum of $179,197.79 of which plaintiff was entitled to receive $175,000.00, the remainder representing a workmen’s compensation lien vested in Commercial Union. Both defendants appealed.

Prior to oral argument in the Court of Appeal, Commercial Union paid $175,000.00 to plaintiff and took a release of all his claims against it, but reserved “all rights, remedies, and causes of action against .. . Dixie Dredge Company and its insurers.” Plaintiff agreed to refund $87,500.00 to Commercial Union in the event Dixie’s appeal was concluded favorably to plaintiff (presumably plaintiff in that event would have been able to recover $87,500.00 from Dixie and, with Commercial Union’s $175,-000.00 reduced by $87,500.00, the respective solidary judgment debtors would each therefore bear one-half of the $175,000.00 judgment).

The parties’ principal arguments in the Court of Appeal related to Dixie’s liability, contributory negligence and quantum.

The Court of Appeal found no reason to address the quantum issue and did not specifically resolve the liability and contributory negligence issues although language in the opinion inferred that, were liability an issue to be reached, the exclusively liable defendant would have been found to be Commercial. Bonura v. Commercial Union Ins. Co., 381 So.2d 1265 (La. App. 4th Cir. 1980).

Rather, the Court of Appeal, concluding that Commercial had “paid the judgment”, treated plaintiff’s pursuit of judgment against Dixie as one in truth where “Cook’s insurer [Commercial] pursues Bonura’s claim, as by subrogation to obtain contribution.” 381 So.2d at 1266. Considering the case in this posture, the Court of Appeal concluded that Dixie was not liable in contract to Commercial (even if both might be liable to Bonura). In other words, there was no merit to Commercial’s third party claim against Dixie. Instead, according to the Court of Appeal, the reverse would be true; if anything the long-shore stevedore owed “Ryan type” indemnity to Dixie, manufacturer and presumed owner of the dredge and the party with whom Texla contracted to do a workmanlike loading job (although, in fact, there was no contract between Dixie and Texla).

For this reason the Court of Appeal did not reach the question whether Dixie is liable to Bonura. It simply denied “contribution” to Cook’s insurer Commercial. The Court then dismissed the appeal as moot because plaintiff personally no longer had a real interest in the judgment.

Neither party had taken this particular posture in the Court of Appeal in brief or otherwise. In fact, there was no contractual arrangement of any sort between Texla Stevedores and Dixie. Texla’s contract for loading was with National Bulk Carriers. Before this Court, counsel for Dixie concedes as much in brief and admits there is no way that Commercial (Texla) could be held liable to Dixie for Bonura’s injuries, under contract or otherwise, based on Tex-la’s negligent performance of the loading.

On application for rehearing the Court of Appeal recognized that plaintiff did retain a real interest in the judgment because he had not collected from Commercial the legal interest due on the principal amount. It nonetheless denied the application for rehearing for reasons which track the essential rationale of the opinion regarding indemnity, concluding that “Bonura cannot now collect from Dixie because Bonura, by accepting the payment ‘in full satisfaction of the judgment’ as against Cook’s insurer, has defeated Dixie’s right to indemnity against Cook’s insurer.” 381 So.2d at 1268.

The issue which should have been decided in the Court of Appeal and which we address now is whether Dixie is liable to Bon-ura for damages sustained when Bonura and others fell into the dredge.

Dixie built the three section dredge in St. Louis. The center section of the dredge had an open area, approximately 12 feet by 35 feet, which was not covered by a steel deck as were the two end sections. Much of the piping and wiring of the dredge was located in this open area and thus would be exposed to the elements (and perhaps vandals and trespassers). To keep out the elements and intruders Dixie covered the open area with plywood. The 4' X 8' sheets of plywood were supported by 2" X 4"’s running the width of the opening and placed on four foot centers. These 2" X 4"’s were supported in the middle by 2" X 4" posts. There was no lengthwise support running the full length of the open area. Approximately fifteen sheets of plywood were used to cover the opening.

At the request of Texla Stevedore, Inc., Dixie sent Mr. Charles Medley to New Orleans to discuss the proper method of rigging the dredge so that it did not sag and become damaged during the lift onto the ship. Mr. Medley testified that the method of rigging which he proposed did not require that anyone stand on the plywood covering to attach the rigging used for the lift. In addition to discussing the proposed method, Mr. Medley made a sketch showing the attachment locations and left this sketch with Mr. Cook, the foreman for Texla, who was in charge of loading the dredge into the ship. Mr. Medley stated that he noticed that one sheet of the plywood had been removed so that the lack of undersupport was apparent to an observer. The fact that the plywood was only one-fourth inch thick was also apparent at this point in time. After fulfilling his job of instructing the Texla representative regarding the manner in which to lift the dredge onto the ship, Mr. Medley returned to St. Louis and, consequently, was not in New Orleans when the accident occurred.

Captain Murphy of National Bulk Carriers testified by way of deposition and stated that, although not directly involved in the loading operation, he had taken photographs as the rigging was being done. One of these pictures had been taken less than ten minutes before the accident. This picture shows that several sheets of the plywood had been removed. Three men are standing on the remaining plywood and a chain fall is about to come to rest on the plywood. Planks, resting only on the plywood and not extending from coaming to coaming, have been placed across the open space created by the removal of the plywood sheets.

Plaintiff’s fellow workers testified that immediately prior to the accident there were four of them on the plywood awaiting instructions from Mr. Cook who was to join them on the top of the dredge to supervise the rigging and lifting. Mr. Cook did not testify, having died as a result of the same accident. The stevedores described Mr. Cook as a large man, weighing approximately 300 pounds. The stevedores also testified that Mr. Cook had told them that the plywood was rather thin. When Mr. Cook arrived on the top of the dredge, he instructed the men to begin the rigging process and the men walked to the area where the planks had been placed to attach the chain fall around the suction pipe of the dredge. As the men converged on this area, the planks and/or plywood collapsed and the men fell several feet into the dredge.

None of the witnesses knew just why the additional sheets of plywood had been removed and the planks placed across the open space thus created. They speculated that the sheets were removed so that there would be easier access to the suction pipe and that the planks were placed to provide a stronger, safer place to walk. The photograph clearly shows, and no witness testified to the contrary, that these planks did not extend to the steel sides (coamings) of the dredge. Rather, the planks only reach from plywood to plywood.

Mr. Medley of Dixie introduced the sketch he had drawn to illustrate the method of rigging he had proposed. To rig in the suggested manner, it was not necessary that a stevedore stand on the plywood. Mr. Medley’s rigging plan contemplated that the stevedores would stand on the steel floor of the dredge and attach the chain fall to the suction pipe from that level rather than from the plywood above the pipe. Mr. Medley acknowledged that the plywood was only Vi inch thick and only strong enough to hold the one or two carpenters who had installed it in St. Louis. Mr. Medley emphasized that the plywood was not intended to serve as a floor from which the stevedores could work, that it was only meant to protect the interior parts of the dredge from weather and intruders during the trip from St. Louis to New Orleans and while the dredge was on the wharf waiting to be loaded in the hold of the ship. After the dredge was secured in the ship, the plywood would no longer be needed because the hold would be closed with watertight covers.

The trial judge held that plaintiff’s injuries were caused by the “joint and combined negligence” of Dixie Dredge Company and Mr. Cook. Plaintiff asserts another rationale for holding Dixie liable in addition to negligence in the use of thin plywood to cover the dredge. Plaintiff contends that liability attaches to Dixie under Article 2317 of the Civil Code which imposes responsibility for the damage occasioned by “things which we have in our custody.”

To recover under Article 2317, a plaintiff must show, inter alia, that the thing which caused the damage was in the care or custody of the defendant owner. In the instant case, Dixie had entrusted the dredge to other parties for shipment to its place of use. On the wharf in New Orleans, Dixie did not have control over the dredge. No Dixie representative was present when the accident occurred. Texla Stevedore, Inc., had full responsibility for loading the dredge into the ship. Texla exercised this responsibility to the degree that it even disregarded the suggested plan of rigging which had been requested from and proposed by Dixie.

Under the reality as it existed at the time plaintiff was injured, Dixie was not the party responsible for the dredge. Plaintiff has not shown that the thing which caused his injury was in the care or custody of Dixie. Dixie had transferred the custody of the dredge to Texla who bore such a relationship to the dredge as to itself have the care of it. Article 2317 does not support recovery for plaintiff.

Plaintiff’s assertion that Dixie is liable to him because it negligently covered the dredge with Vi inch plywood presents a closer question for our decision. As we explained in Hill v. Lundin, 260 La. 542, 256 So.2d 620, 622 (1972): “if the defendant’s conduct of which the plaintiff complains is a cause in fact of the harm, we are then required in a determination of negligence to ascertain whether the defendant breached a legal duty imposed to protect against the particular risk involved.” There is no doubt that the thin plywood was a cause in fact of plaintiff’s injury. The proper focus for our inquiry is whether Dixie breached a legal duty to protect plaintiff against the risk that five men and a piece of heavy machinery would be placed on admittedly weak plywood.

Mr. Medley of Dixie acknowledged that had he known that the stevedores would stand on the plywood to rig the dredge, he would have felt an obligation to warn them about the nature of the plywood and its limited purpose. Mr. Medley, however, had no such knowledge. Mr. Medley, instead, had provided Mr. Cook with a sketch showing the manner in which to rig the dredge and the procedure suggested did not require that stevedores stand on the plywood. Rather than follow the rigging plan suggested by Mr. Medley, the Texla foreman, Mr. Cook, devised and used a rigging plan of his own. To effectuate this plan, Mr. Cook had the stevedores stand on the plywood.

Texla carpenters removed several sheets of plywood for reasons unknown. Perhaps the stevedores needed a larger hole through which to feed the chains and cables of the chain fall. With these plywood sheets no longer in place, there was an opening across which the stevedores could not step. Texla carpenters placed boards across this open space. These planks were variously described as 2 inch boards, six to twelve inches wide, and several feet long. The boards, however, did not reach to the steel sides of the dredge; instead, the boards rested only on the adjacent sheets of plywood. Physically, the planks placed across the plywood did little more than add weight to the already insubstantial structure. Additionally, the planks created an illusion of safety and stability which realistically did not exist. The stevedores stated that they thought the planks had been placed in position to create a safe and strong place on which to walk. Texla through its officer Cook made an unwise choice of materials and their placement for use in the loading of the dredge onto the ship. Dixie cannot be blamed for the actions of Texla. Texla was a specialist in the field of loading ships.

Recognizing the unusual construction of the barge, Texla requested and received a proposed method of rigging. In addition to discussing the plan with the Texla representative, Mr. Medley from Dixie left a sketch of the suggested rigging with Mr. Cook. The stevedores testified that Mr. Cook warned them that the plywood was rather thin. Even knowing that the plywood was thin, Mr. Cook discarded the suggested rigging plan which would not have required the stevedores to be on the plywood. Instead, Mr. Cook used a substitute plan of his own which required the men to stand on the thin plywood.

We find the case before us similar to Hill v. Lundin, supra. In Hill, a building contractor had left a ladder standing against the side of a house after completing a repair job. An unknown party moved the ladder so that it was lying on the ground. Plaintiff, who worked for the homeowner, tripped over the ladder as it was on the ground. We held that the contractor was not liable to plaintiff because defendant had not breached a legal duty imposed to protect against the particular risk encountered by plaintiff. Rather, the risk encountered by the plaintiff, and which caused her injury, was the ladder in its position on the ground. The action of the third person created that risk. We noted that there was no evidence in the record tending to establish that defendant could have reasonably anticipated that a third party would move the ladder and leave it in the dangerous position. Consequently, defendant was not liable to plaintiff.

In the instant case, while the thin plywood was a cause in fact of plaintiff’s injury, the particular risk Bonura encountered was created by the action of a third party. Dixie proposed a rigging plan to be used by Texla. Texla specifically requested such a plan. For whatever reason, Mr. Cook decided to use another method of rigging, a method which required the stevedore to stand on the plywood. Dixie’s proposal would not have placed the stevedores in that location. Besides disregarding Dixie’s proposal for rigging, Mr. Cook, although he could see that the plywood upon which the planks rested was quite thin, created an illusion of safety by having planks placed in such a manner that the stevedores viewed them as a walkway. Like the third party in Hill who moved the ladder into the new position, Mr. Cook changed the conditions on the dredge and thus created the particular hazard legally responsible for plaintiff's injuries. Considering the totality of the circumstances, we hold that Dixie is not liable to plaintiff.

Decree

The judgment of the Court of Appeal, amending the district court judgment, is set aside. The judgment of the district court, insofar as it cast defendant Dixie Dredge Company in solido along with Commercial Union Insurance Company, is reversed. With reference to plaintiff’s claim against Dixie, plaintiff’s petition is dismissed with prejudice at plaintiff’s cost.

COURT OF APPEAL JUDGMENT SET ASIDE; DISTRICT COURT JUDGMENT REVERSED IN PART; PLAINTIFF’S PETITION DISMISSED IN PART.

LEMMON, J., concurs and assigns reasons.

      . The Court of Appeal opinion states that “Dixie would be entitled to full indemnity from Cook’s insurer.” 381 So.2si at 1266. This indicates that Cook’s insurer, Commercial Union, must bear the entire judgment: a situation which would not occur unless Commercial were determined to be the defendant exclusively liable to plaintiff. Vis-a-vis themselves, parties liable in solido are each responsible for a virile share of the judgment.

      . In this regard, we note that, although Commercial had paid the principal amount of the judgment, plaintiff had not received the legal interest due on that amount and therefore still had a real interest in the litigation.

      .In Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), the United States Supreme Court held that a stevedoring company must indemnify the shipowner cast in judgment to an injured longshoreman when his claim was based on the unseaworthiness of the vessel due to faulty loading by the stevedores. The Court reasoned that the stevedoring company had contracted to do the job in a workmanlike manner and its failure to do so was the cause of the claim against the vessel.

      . But see note 2 supra and text infra.

      . Some witnesses described these as “little sticks.”


text:
    COLLECTOR OF REVENUE v. WELLS FARGO LEASING CORPORATION. COLLECTOR OF REVENUE v. WELLS FARGO TRANSPORT LEASING CORPORATION.
    No. 67762.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      Art B. Haaek, W. Steven Mannear, Baton Rouge, for plaintiff-applicant.
    Stephen A. Cooper, Martha L. Daetwyler, San Francisco, Cal., Nigel E. Rafferty, Edward T. Meyer, Monroe & Lemann, New Orleans, for defendant-respondent.
   DENNIS, Justice.

The Collector of Revenue assessed deficiencies against both related corporate defendants, Wells Fargo Leasing Corporation and Wells Fargo Transport Leasing Corporation, for failure to pay the Louisiana Occupational License Tax as imposed by La. R.S. 47:341 and 47:386. The Wells Fargo corporations have successfully resisted paying this tax; the Board of Tax Appeals, district court and court of appeal all rendered judgments in the proposed taxpayers’ favor. Because we believe that the taxpayers’ local activities fairly constitute the “pursuing of business in the state” and the presence of a business office in the state is not a prerequisite to imposition of the occupational license tax, we reverse.

The Collector of Revenue assessed deficiencies totaling just over $550 owed by both Wells Fargo corporations for delinquent occupational license taxes. The corporations sought a redetermination of these assessments before the Board of Tax Appeals. In their petition for redetermination, the proposed taxpayers alleged that they were not subject to the tax because they maintained no office in Louisiana and all transactions were handled and closed by an office outside the state relying on a 1950 opinion of the Louisiana Attorney General. No agent of the Wells Fargo Corporation actually appeared before the Board. The attorney for the Department of Revenue did appear and conceded that the Wells Fargo companies had no office in this state, nor was he aware that either company had any agents or employees residing in the state. The Collector’s attorney argued, however, that a discrete place of business in the state is not required by the statutes and that the Wells Fargo corporations had sufficient contacts with the state to justify a finding that they were pursuing business in the state, specifically, the business of leasing movable property within the contemplation of La.R.S. 47:341 and 47:386. According to the Collector’s attorney, company helicopters were used by a lessee in the state, Wells Fargo probably had personnel come into the state periodically to inspect their equipment, the companies were authorized to do business in Louisiana and had a registered agent to accept service of process, the companies collected use tax on Louisiana rental income, and were afforded all the protections and privileges accorded Louisiana domiciliaries — police and fire protection, access to Louisiana courts, etc.

The Board of Tax Appeal rendered written judgment in favor of the Wells Fargo corporations on January 8,1976. The board offered no written findings of fact or conclusions of law on which it based its decision. Section 1410 of Title 47 requires the board to make written findings of fact. The Board of Tax Appeals, as an agency of the executive branch, La.R.S. 47:1401, is subject to the provisions of the Louisiana Administrative Procedures Act, La.R.S. 49:951, et seq. See particularly La.R.S. 49:951(2); 49:954.1(A). Section 958 of the act requires a final decision in an adjudication proceeding to include findings of fact and conclusions of law in writing or stated in the record. Such requirements are essential for proper judicial review by the district court and higher appellate courts since this record is the basis for any action on review, and any decision must be rendered upon such record. La.R.S. 47:1434.

The record in this case consists only of responses by the Collector’s attorney to questions posed by board members. The proposed taxpayers chose to rely on their pleadings — that they were not subject to the tax since they had no business office in the state and did not close any business transactions in the state. Apparently, the board accepted these allegations as true and considered them a sufficient basis to grant both Wells Fargo corporations the affirmative relief requested.

The district court found no manifest error in the board’s decision. The court of appeal, in interpreting principally La.R.S. 47:345, concluded that the occupational license tax could not be levied upon a taxpayer that does not have a place of business in Louisiana. Since the absence of a place of business was satisfactorily established by the record, it also affirmed the ruling for the Wells Fargo corporations.

The taxpayers have never contended that imposition of this tax on them would violate the commerce or due process clauses of the federal constitution. The question then is one of statutory construction: whether the taxpayers have sufficiently demonstrated that they are not subject to the occupational license tax. Even reading the pleadings and record in a light most favorable to the taxpayers, we find no warrant in the record or justification in the law for setting aside the assessments against them. We disagree with the taxpayers’ contention, which the court of appeal accepted, that the tax cannot be imposed on one who conducts business but has no place of business in the state.

Section 341 of Title 47 imposes “an annual license tax upon each person pursuing any trade, profession, vocation, calling or business in this state subject to license under Section 8 of Article X of the Constitution of 1921 . ...” The Wells Fargo corporations were assessed as “person[s] carrying on the business of leasing, renting, or licensing the use of movable property or property rights” within the meaning of La. R.S. 47:386. The language of Section 341— each person pursuing any business in the state — is broad in scope. Although taxing statutes must be construed strictly against the taxing authority, Treat v. White, 181 U.S. 264, 267, 21 S.Ct. 611, 613, 45 L.Ed. 853, 854 (1901); Gertrude Gardner Inc. v. McNamara, 359 So.2d 644 (La.App. 1st Cir. 1978), there is no exception from the occupational license tax for persons who carry on business in the state without maintaining a recognized business office. The taxpayer and the court of appeal attached significance to La.R.S. 47:345 which requires “a separate license for each class of business at each place of business.” This statute, it was argued, exempts a person who conducts a business without having a place of business in the state. Of course, most businesses will ordinarily have a recognized office in the state, but the statute does not provide that an office is essential to imposition of the tax. Section 345 merely makes it abundantly clear that a separate license is required for each class of business and allows the state to exact additional revenue from taxpayers who have more than one business location.

That a fixed place of business is not required under La.R.S. 47:341 is supported by express coverage under the occupational license tax of certain transient vendors, the applicable rate of tax being set in La.R.S. 47:381 and 47:385 in language that does not indicate that imposition on these taxpayers is in any way exceptional.

Wells Fargo has not raised any constitutional attack on our statute as applied, but in part relies on early interpretations of our statute that were affected by federal constitutional considerations. The permissible bounds of state taxation of interstate commerce were narrowly defined by early jurisprudence interpreting the federal commerce clause. See, e. g., Spector Motor Service v. O’Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573 (1951); overruled Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326; Nippert v. Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760 (1946). In order to avoid constitutional problems, courts were likely to find persons engaged solely in in-state solicitation of orders accepted out-of-state as lacking sufficient connection with the state to sustain the assessment. These assessments were said to fall directly on interstate commerce and thus violate the commerce clause. Nippert v. Richmond, supra; Graham Mfg. Co. v. Roliand, 191 La. 757, 186 So. 93 (1939); State v. Paramount Publix Corp., 178 La. 818, 152 So. 534 (1933). Recent commerce clause cases have repudiated the earlier stricter interpretations upon which our older cases relied. The United States Supreme Court has indicated that a state may constitutionally levy nondiscriminatory, properly apportioned taxes upon foreign corporations doing an exclusively interstate business when the tax is related to a corporation’s local activities and the state has provided benefits and protection for these activities for which it is justified in asking a fair and reasonable return. See, e. g., Mobil Oil Corp. v. Comm’r of Taxes of Vermont, 445 U.S 425, 100 S.Ct. 1223, 63 L.Ed.2d 510 (1980); Dept. of Revenue of State of Washington Stevedoring Cos., 435 U.S. 734, 98 S.Ct. 1388, 55 L.Ed.2d 682 (1978); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977); Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 95 S.Ct. 1538, 44 L.Ed.2d 1 (1975).

The taxpayers have relied on their lack of a business office in Louisiana to escape the occupational license tax. Since we have determined that such office is not necessary for imposition of the tax, there is nothing in the record to support a judgment in Wells Fargo’s favor. However, we also believe that the record, such as it is, demonstrates the existence of sufficient local activities to make such tax just.

The Wells Fargo corporations have qualified to do business in Louisiana, La.R.S. 12:301, and are on an equal footing with all domestic business concerns. It is also undisputed that the Wells Fargo corporations own property located in this state from which they derive substantial revenue by leasing to Louisiana lessees. As distinguished scholars in the field of state taxation have noted: “The ownership of property in the State (which is sometimes explicitly made a basis for taxation by statute) actively used in the trade or business normally gives rise to the tax.” J. and W. Hellerstein, State & Local Taxation 307 (4th ed. 1978). The Supreme Court of Hawaii, recently interpreting its similar privilege tax statute, found the taxpayer subject to the tax though it had no place of business within the state, no agent or employee residing in the state and all lease agreements were consummated outside the state. In Matter of Tax Appeal of Heftel Broadcasting Honolulu, Inc., 554 P.2d 242, 245 (Haw.1976). The Court stated that:

“unlike a sale of goods that takes place on the mainland with the goods being transported here, the license arrangement continued into this State wherein it was a source of income to the licensor. This continuing leasing of the telecast rights performable only in Hawaii for a rental charge, we believe, is the type of activity contemplated in the definition of ‘Business’ given in HRS § 237-2.” 554 P.2d at 246-47.

See also, J. C. Penney Co., Inc. v. Hardesty, 264 S.E.2d 604 (W.Va.1979).

Taken as a whole, we believe the extent and continuity of local activities, as opposed to merely incidental, isolated contact with the state, evidence a purposeful pursuit of business within the state. Accordingly, the assessments as originally calculated by the Department of Revenue are reinstated.

REVERSED.

      .A sufficient nexus between the taxpayer and the state exists:
      “whenever a company takes advantage of the economic milieu within the state to further its corporate goals. The state will be entitled to tax the company because the benefits it provides are a substantial and necessary economic factor in the success of its operations. Such benefits involve the maintenance of services and protection essential to the production or marketing of goods, the ownership of property or the employment of personnel.”
      Note, State Taxation of Interstate Commerce: An Analysis of Current Standards Promulgated by the United States Supreme Court — Department of Revenue v. Association of Washington Stevedoring Cos., 28 DePaul L.Rev. 205, 216 (1978).

      . Generally more business activity is required for qualification purposes than for taxing jurisdiction. See La.R.S. 12:302 (Supp.1972). Three Kinds of Doing Business, 23 Corp.J. 163 (1961). The context of the inquiry into “doing business” must thus be kept in mind.

      . Haw.Rev.Stat. § 237-13(10) imposes a tax “upon every person engaging or continuing within the State in any business, trade, activity, occupation, or calling .. .. ”