text:
    STATE ex rel. William ROSS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0411.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      C. Frank Holthaus, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-respondent.
   LABORDE, Justice ad hoc.

Defendant William Ross was convicted of second degree murder in Caddo Parish in February of 1974 and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence for 20 years. Following an appeal to this Court wherein the only argument urged was the unconstitutionality of the second degree murder statute, defendant’s conviction and sentence were affirmed. State v. Ross, 304 So.2d 354 (La.1974). In September of 1975, a pro se application for writ of habeas corpus alleging ineffective assistance of counsel was filed in the District Court and summarily denied. In January of 1976, this Court granted defendant’s pro se writ application and ordered an evidentiary hearing held on the ineffective assistance of counsel claim. Following that hearing, the district court, in March of 1979, again denied the writ and this court denied defendant relief from that judgment. In August of 1980, defendant filed a pro se application in district court challenging his conviction on dual grounds of an alleged “unconstitutional jury instruction and insufficiency of evidence.” That application was denied by the district court and defendant now appears before this Court on a grant of supervisory writs.

FACTS

On December 5, 1973, defendant Ross, in a quick motion, pulled a gun from his pocket and fired it. The bullet struck and killed Katrina Yolanda Sibley, the three year old child of defendant’s girlfriend, Willie Faye Sibley. The shooting took place in Ms. Sib-ley’s apartment and occurred during an argument between Ross and Ms. Sibley. The defendant alleges that the gun accidentally discharged and that he had no intent to harm Ms. Sibley or her daughter. He asserts that he pulled the gun out simply to scare Ms. Sibley, as he had successfully done on two prior occasions. As set forth above, the jury found defendant Ross guilty of second degree murder. Defendant now urges the following arguments as grounds for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

By this assignment the defendant urges that the trial court erred in instructing the jury that “a man is presumed to intend the natural and probable consequences of his act,” in violation of the 1979 ruling of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and State v. Heads, 385 So.2d 230 (La.1980).

The trial judge gave the following instruction on intent to the jury:

“Criminal intent has been referred to in this case. The law of Louisiana provides in Article 10 of the Criminal Code criminal intent may be specific or general. Specific criminal intent: This is a state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. General criminal intent is present whenever there is specific intent and also when the circumstances indicate that the offender in the ordinary course of human experience must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.
The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of a criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions the term[s] ‘intent’ and ‘intentional’ have reference to general criminal intent. That concludes the definition of criminal intent as contained in the criminal code.
Although intent is a question of fact it need not be proven as a fact, and may be inferred from the circumstances of the transaction.
Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired and actually intended to accomplish the criminal consequences constituting the crime charged. This intent need not be proven by direct evidence. It is not possible to look into a person’s mind and discover his intentions. It may be inferred from the circumstances, such as the intentional use of a deadly weapon. A man is presumed to intend the natural and probable consequences of his action. The intent need not have existed for any material length of time. It is sufficient if it was in the mind of the accused at the time of the commission of the act. If a person intends to kill one person and unintentionally kills another, his guilt or innocence is to be determined as though the fatal act had caused the death of the person against whom the act was directed. You may consider all of the evidence in the case which you believe bears on the question of the intent of the defendant in order to reach a conclusion as to his criminal intention.”

The defense urges that this instruction violated the recent case of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and State v. Heads, 385 So.2d 230 (La.1980). In Sandstrom, supra, the United States Supreme Court found an instruction that “the law presumes that a person intends the ordinary consequences of his voluntary acts” suggestive of serious constitutional problems since such a presumption could have the effect in a deliberate homicide prosecution of shifting the burden to the defendant to show that he lacked the requisite mental state of the crime, or create a conclusive presumption of intent against the defendant. A jury’s inference that the presumption was mandatory and irrebuttable would alleviate the state’s burden of proving beyond a reasonable doubt every element of the crime charged, in violation of the mandate of In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

This Court applied the rationale of Sandstrom in State v. Heads, supra a first degree murder case where the same instruction was given, i. e., “a man is presumed to intend the natural and probable consequences of his acts.” This Court held:

“As in Sandstrom, the jury could have interpreted the instruction as either shifting the burden of proving intent to defendant or creating a conclusive presumption of intent against defendant. Since intent, an essential element of the crime charged, was the main issue in the case and was also the subject of the erroneous instruction, we are unable to say that the error was harmless beyond a reasonable doubt. Hence, we must remand the case to the district court for a new trial consistent with the views expressed by the United States Supreme Court in Sandstrom v. Montana, supra.

In light of defendant’s testimony that he intended to use the weapon but only meant to scare Ms. Sibley and had no intent to harm her or her daughter, the question of intent had become the critical issue at trial. Under the Sandstrom rationale, the instruction given in the instant case was prejudicial to the defendant. A serious problem arises, however, in that unlike either Sandstrom or Heads, defense counsel here made no objection to the instructions at trial. This Court has consistently held that erroneous jury instructions are not errors patent and absent a contemporaneous objection, a defendant may not on appeal complain of the judge’s charge to the jury. LSA-C.Cr.P. art. 841; State v. Craddock, 307 So.2d 342 (La.1975); State v. Mitchell, 319 So.2d 357 (La.1975); State v. Stramiello, 392 So.2d 425 (La.1980). In the recent case of State v. Harris, 383 So.2d 1 (La.1980), a Sandstrom challenge was made where the jury was instructed that “a sane person is presumed to intend the natural and probable consequences of his acts.” This Court denied relief finding that no contemporaneous objection was made below. The Court also stated that the jury charge made it clear that the state had the burden of proving specific intent to kill beyond a reasonable doubt. Harris, supra, 383 So.2d at 11. Cf., State v. Williamson, 389 So.2d 1328 (La.1980); Tyler v. Phelps, 622 F.2d 172 (5th Cir. 1980).

Failure to object below precludes the defendant from raising this argument in a collateral proceeding as well as on appeal. Hence, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

By this assignment, defendant contends that there is insufficient evidence to sustain his conviction for second degree murder under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under Jackson, a defendant’s challenge against sufficiency of evidence is judged by determining whether a rational jury, after construing the evidence in the light most favorable to the prosecution, could find proof of guilt beyond a reasonable doubt.

Applying this test to the facts of this case, we cannot say Ross is entitled to relief. Viewing the evidence in the light most favorable to the prosecution, the record evidences that William Ross, although married, had been seeing Willie Fay Sibley for approximately one and one-half years. During that time, Ross frequently stayed overnight at Ms. Sibley’s apartment. On the evening preceding the morning of the shooting, Ross and Ms. Sibley engaged in an argument. According to Ms. Sibley, Ross wanted her to have a child for him and became upset when she refused. She claimed he told her he disliked the idea that none of her three children was his and that everyday he walked around her house looking at evidence of some other man’s children. Ms. Sibley also testified that Ross told her he could understand her having the first two children because she was younger, but he could not understand why she had Katrina, the victim, because by that time she [Ms. Sibley] was eighteen years old and had sense enough to know what she was doing.

According to the evidence, the argument between Ross and Ms. Sibley subsided and both went to bed with neither one speaking to the other. Ross got up at 4:00 the next morning, returned home to his wife, and left from there about 6:45 a.m. to go to work. That same morning, Ross called Ms. Sibley from work in order to apologize. She was still upset and informed him that she no longer wanted to see him. Ross asked to be excused from work stating that his son was sick and he needed to take him to the hospital. Instead, Ross went directly to Ms. Sibley’s apartment, parking his car in an alley down the street instead of near the apartment where he usually parked. Ross went inside and he and Ms. Sibley continued their argument as Ross began gathering his things together in order to take them home. It was while they were in Ms. Sibley’s 9' X 15' bedroom that Ross pulled out a double action .32 caliber pistol to, as he claims, scare Ms. Sibley with it. The gun fired and its bullet hit and killed Katrina who was approximately five feet away sitting on a bed near ■ her mother. The police arrived at the scene shortly and Ross told them that he was removing the gun from a chest of drawers when it accidentally discharged and struck the child. Ross later revised his statement to the present version that he pulled his gun out to scare Ms. Sibley and it accidentally fired, killing the child.

We hold that based upon this evidence, a rational fact finder could, after construing it in a light most favorable to the prosecution, conclude that Ross, beyond a reasonable doubt, had the intent to kill or to do great bodily harm. Since Ross’ claim of insufficiency of evidence goes only to the question of his intent, his second argument lacks merit.

DECREE

For the foregoing reasons, the conviction and sentence of defendant is affirmed.

       Judges J. Burton Foret, Jimmy M. Stoker and P.J. Laborde, Jr. 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 Watson.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    Lawrence LoBRONO, et al. v. GENE DUCOTE VOLKSWAGEN, INC., et al.
    No. 81-C-0412.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Dan R. Dorsey, River Ridge, for plaintiffs-applicants.

      Adrianne L. Baumgartner and D. J. Mitchell of Porteous, Toledano, Hainkel & Johnson, Robert E. Winn and J. David For-syth of Sessions, Fishman, Rosenson, Bois-fontaine & Nathan, New Orleans, Jacob J. Amato, Jr., of Amato & Creely, Gretna, Michael D. Zelden, New Orleans, for defendants-respondents.
   MARCUS, Justice.

These consolidated suits arose out of an automobile accident that occurred on October 10, 1978, when Mrs. Mary A. LoBrono drove her 1977 Volkswagen Dasher station-wagon, owned by her husband, Lawrence LoBrono, into the residence of Mr. and Mrs. Arthur L. Leonard. Prior to the collision, the automobile struck Dana LoBrono, the minor daughter of the LoBronos.

In the first-filed suit, Lawrence LoBrono sought recovery for the personal injuries to his minor daughter and for the property damage to his automobile. Made defendants were Gene Ducote Volkswagen, Inc., seller of the vehicle, and Volkswagen of America, Inc., manufacturer of the vehicle. It was alleged that the accident was caused by a defect in the accelerator linkage system and/or brakes of the automobile and/or the failure to properly repair the vehicle. Ducote and Volkswagen separately answered generally denying the allegations of the petition and third-partied Mary A.' LoBrono seeking indemnification and/or contribution based on a claim that the accident was caused by the negligent operation of the vehicle by Mrs. LoBrono. Cumis Insurance Society, Inc., plaintiff’s insurer, intervened against Ducote and Volkswagen seeking recovery of its subrogated interest in the cost of repairing the LoBrono vehicle.

In the other suit, Arthur L. Leonard, owner of the residence struck by the LoBro-no automobile, and his insurer, State Farm Fire and Casualty Company, sought recovery for damage to the Leonard home caused by the accident. Made defendants were Mr. and Mrs. LoBrono and their insurer, Cumis, and Ducote and Volkswagen. It was alleged that the accident was caused by the negligence of Mr. and Mrs. LoBrono and/or a defect in the accelerator linkage system and/or brakes of the automobile and/or the failure to properly repair the vehicle. Volkswagen and Ducote separately answered generally denying the allegations in the petition and further asserted a third party demand against Mary A. LoBro-no based on the same grounds as set forth in their third party petition in the first suit. The LoBronos and their insurer, Cumis, also answered generally denying the allegations of the petition and further answered by alleging that the accident was caused by Ducote and Volkswagen on the same grounds as set forth in Mr. LoBrono’s petition in the original suit.

The two suits were consolidated for trial. Prior to trial, the LoBrono claims against Ducote and Volkswagen, including all incidental demands, were settled. The matter then went to trial on the intervention by Cumis against Ducote and Volkswagen in the first suit and on the claims of Mr. Leonard and State Farm against Mr. and Mrs. LoBrono and their insurer, Cumis, and Ducote and Volkswagen as well as on all third party demands in the second suit.

The trial judge, finding that the accident was caused by the “negligence” of both Mary A. LoBrono and Volkswagen rendered judgment in favor of State Farm and Mr. Leonard in the sums of $4,997.77 and $100 respectively, plus legal interest and costs, and against Cumis and Volkswagen in soli-do. No liability was found on the part of Ducote. All other claims were dismissed.

Cumis and Volkswagen appealed. The court of appeal found that the trial judge erred in his finding that the plaintiffs and intervenor had carried their burden of establishing that the accelerator stuck under normal use. However, the court concluded that under the circumstances of the case the trial judge did not manifestly err in his factual conclusion that the damage resulted from the negligent operation of the vehicle by Mrs. LoBrono. Hence, the court of appeal reversed the judgment of the trial court insofar as it held Volkswagen liable; otherwise, it affirmed. Upon application of Cumis, we granted certiorari to review the correctness of that decision.

The accident occurred when Mrs. LoBro-no was driving her daughter and her daughter’s friend to a sorority meeting at the Matlick residence. Upon reaching their destination, Mrs. LoBrono parked the car with the passenger side to the curb in front of the Matlick residence and turned off the ignition. The girls exited from the car and Miss LoBrono proceeded to the driver’s window to give her mother directions to return home. She instructed her mother to go forward to the end of the block, turn around, and then come back down the same street. Mrs. LoBrono testified that when she turned the ignition key and attempted to put the car in drive, it locked in reverse and began racing up to 45 or 50 miles per hour. She then tapped the accelerator because her husband had told her to do that if the automobile revved up. However, her testimony is unclear as to whether she tapped the accelerator while the car was still in park or was already in reverse. She stated that both the accelerator and brake pedal were to the floor of the car. She explained, “Really, it was like a dream, but it [the car] spun, spun around . . . . ” According to Mrs. LoBrono, the car went backward, hitting her daughter and knocking her daughter’s friend down before it ran between two trees on the Leonard’s front yard located directly across the street from where the car was originally stopped and collided with the front brick wall of the Leonard residence. Mrs. LoBrono further stated that neither she nor her husband or daughter had previously experienced any problem with the accelerator sticking. Dana LoBrono also stated that she had driven the car prior to the accident and had never encountered a problem with the accelerator.

The Leonards, who were at their next door neighbor’s house when the accident occurred, went to investigate and stated in their depositions introduced at trial that they found the rear of the Volkswagen protruding through the brick wall into their kitchen. Mr. Leonard stated that he as well as a fireman and a policeman who came to investigate the accident tried the brakes of the car and they seemed fine. He further stated, without objection, that when Mr. LoBrono arrived at the scene and got into the car a neighbor heard him say that “there wasn’t a damn thing wrong with the car.” Mrs. Leonard stated that when she later asked Mrs. LoBrono what happened she told her that her brakes had failed, causing her to spin and end up colliding with the house.

Mr. LoBrono testified that when he drove the automobile away from the accident scene that evening he had no trouble with the accelerator sticking or with the brakes. Although he stated that he complained to Ducote prior to the accident about the car “racing when he started it,” no complaints were indicated on the repair orders and the service manager testified that Mr. LoBrono had never told him that the automobile was improperly accelerating or that the accelerator was sticking. The car was approximately one year old and had been driven about 11,000 miles at the time of the accident.

Fred Liebkemann, a mechanical engineer, was called to testify by Cumis. He stated that he examined the car two days after the accident at the LoBrono home. He particularly examined the accelerator linkage for evidence of what may have caused the accident. He explained how the accelerator linkage worked:

[I]n the car, there is an accelerator pedal, the normal type that is found in most cars, you’ve got an accelerator cable that goes through the fire-wall into the engine compartment and over to an arm that operates off the fuel rack, so as to move it, and because the engine could speed up and slow down, the cable consists of a hollow outer tube with a brass plated bushing on each end, and inside that cable runs a metal, a steel strip about a quarter inch wide, about thirty or forty thousandths inch thick that moves back and forth inside the cable. When the operator pushes the accelerator down, it moves the arm to cause the engine to increase RPM’s. When the operator’s foot is removed from the accelerator, there is a spring return that brings it back to idle speed.

Upon examining the system, he found that where the accelerator cable containing the metal strip comes out of the bushing, there was a tendency for the strip to “bind up or kink.” However, he admitted that several times when he started the engine, revved it up and took his foot off the accelerator, the accelerator never stuck on its own. Moreover, no hangup occurred when the same test was performed by Mr. LoBrono. When Mr. Liebkemann manually depressed the accelerator cable about a foot away from the bushing down to a position about an inch further than where it was normally situated, the cable did kink, causing excessive friction so that the spring return was insufficient to bring the system back to idle. He concluded by stating that the tendency of the accelerator linkage to hang up or kink could possibly explain what Mrs. LoBrono had reported as taking place. The tests were performed while the car was parked in the LoBrono driveway and covered a period of thirty minutes to an hour. Mr. Liebkem-ann also tested the brakes and found no problem with them.

Richard Berger, Ducote’s service manager, stated that October 26,1978, about two weeks after the accident, was the first time that, upon request of the LoBronos, he inspected the automobile for evidence of the accelerator sticking. He stated that on the occasions that the car was brought in for service prior to the accident, there had been no complaints about the accelerator but that new brake pads had been placed on the car at the request of Mr. LoBrono. Du-cote’s service department found no excessive bind of the accelerator cable and found no evidence of sticking. After driving the car three or four times, Mr. Berger as well as Volkswagen’s field representative, Wolfgang Guder, could find no defect or problem in the accelerator cable. Mr. Berger explained that the cable was designed to be flexible and even if bent would operate properly. The only way to cause improper operation would be to bend the cable to a full forty-five degree angle.

The sole issue presented for our determination is whether the accident was caused by a defect in the accelerator linkage system of the automobile or by the negligence of Mrs. LoBrono or by the fault of both. Resolution of this issue will determine the rights and liabilities of the parties involved in this litigation.

In products liability cases, the rule is well established that a manufacturer of a product that involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part sustains an injury caused by a defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. The plaintiff claiming injury has the burden of proving that the product was defective, that is, unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect. Weber v. Fidelity and Casualty Insurance Co. of New York, 259 La. 599, 250 So.2d 754 (La.1971).

We conclude that the evidence does not establish that the accident was caused by a defective accelerator linkage system in the Volkswagen Dasher stationwagon owned by Mr. LoBrono. Mr. Liebkemann testified that several times when he started the engine, revved it up, and took his foot off the accelerator, the accelerator never hung up or kinked. Only when he manually depressed the accelerator cable was an angle created in the cable that was so severe as to cause a kink so that the spring return was insufficient to bring the system back to idle. At most, he could only conclude that because of its design, there was a tendency for the cable to hang up or kink. The LoBronos had owned the vehicle for almost a year and had driven it some 11,000 miles yet Mr. LoBrono, Mrs. LoBrono and Dana LoBrono all testified that the accelerator had never stuck previously. The service records of Ducote as well as the testimony of Ducote’s service manager indicated that the LoBronos had never registered any complaints regarding this alleged defect prior to the accident. Mr. LoBrono further testified that he had driven the vehicle home that evening and had no trouble with the accelerator sticking. Examination of the vehicle by Ducote’s service manager and Volkswagen’s field representative revealed no evidence of accelerator sticking or problems in the accelerator cable. In sum, we conclude, as did the court of appeal, that the plaintiffs and intervenor failed to carry their burden of proving that the accident was caused by an accelerator linkage cable that was defective, that is, unreasonably dangerous to normal use. Therefore, Volkswagen is not liable. The trial judge was clearly wrong in finding otherwise.

Having found that the vehicle was not defective, we must conclude that the accident was caused by the negligent operation of the vehicle by Mrs. LoBrono. Mrs. LoBrono’s testimony, although not clear, when taken as a whole suggests that in accordance with her husband’s advice, she tapped the accelerator after she started the engine and placed the car in reverse. She stated that she could not take the car out of reverse and that pressing on the brakes did not stop the movement of the car. Consequently, the car spun uncontrolled into the Leonard Home. Although plaintiff and in-tervenor argue that the accelerator cable was defective, Mrs. Leonard stated that Mrs. LoBrono told her that the brakes had failed and caused the car to spin resulting in the accident. Mrs. LoBrono further stated that the entire event was really “like a dream,” illustrating her inability to explain what occurred and why. Under the circumstances, we have no difficulty in concluding that Mrs. LoBrono’s negligence in inadvertently stepping on the accelerator when she attempted to apply the brakes after the car was placed in reverse and in her failing to neutralize the vehicle once it began to proceed in a backward direction was the sole cause of the accident and resulting damages. Hence, the court of appeal was correct in concluding that the trial judge did not manifestly err in his factual conclusion that the damages resulted from the negligent operation of the vehicle by Mrs. Lo-Brono.

Having concluded that the accident was caused solely by the negligence of Mrs. Lo-Brono, we affirm the judgment of the court of appeal in favor of State Farm and Mr. Leonard against Cumis in the sums of $4,997.77 and $100 respectively, plus legal interest and costs, and dismissing all other claims.

DECREE

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

       Judge Frederick Stephen Ellis of the Court of Appeal, First Circuit, participated in this decision as Associate Justice Ad Hoc in place of Associate Justice Watson, recused.

      . Upon reaching the age of eighteen, Dana Lo-Brono’s motion to be substituted as party plaintiff in place of her father as the administrator of her estate was granted.

      . 391 So.2d 1360 (La.App. 4th Cir. 1980).

      . 397 So.2d 1364 (La.1981).

      . Cumis intervened against Ducote in the first suit for its subrogated interest in the cost of repairing the LoBrono vehicle. Mr. Leonard and State Farm made Ducote a party defendant in the second suit for recovery of the property damage to the Leonard house. The trial court found no liability on the part of Ducote. Mr. Leonard and State Farm did not appeal nor answer the appeal. Hence, the dismissal of their claim against Ducote is final. Cumis appealed. The court of appeal affirmed the dismissal of Cumis’ intervention against Ducote. While we granted Cumis’ application for a writ of review, Cumis neither assigned as error, briefed nor argued the liability of Ducote. Hence, we consider its claim against Ducote to have been abandoned. In any event, the record does not support a finding of any liability on the part of Ducote.

      . Volkswagen argues that no party met the burden of establishing its status as manufacturer of the automobile or any other connection between Volkswagen and the subject vehicle. Since we conclude that the automobile was not defective and therefore Volkswagen is not liable, we will pretermit this issue.


author: BLANCHE, Justice.

text:
    Helen SCIACCA v. Louis POLIZZI, M.D. and Julius Schmid Company, a/k/a Schmid Laboratories, Inc.
    No. 81-C-0533.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Carey J. Guglielmo and Richard Creed, Jr., of Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendant-applicant.
    Mark Alan Jolissaint, Slidell, for plantiff-respondent.
    Jerry L. Saporito, and B. Frank Davis of Bernard, Cassisa, Babst & Saporito, Metair-ie, for Julius Schmid Co. a/k/a Schmid Laboratories, Inc.
   BLANCHE, Justice.

Plaintiff, Helen Sciacca, filed suit on May 13, 1976 against Louis Polizzi, a physician, and Julius Schmid Co. a/k/a Schmid Laboratories, Inc. She styled her suit as a “Petition for Damages Due to Breach of Contract.” Plaintiff alleged therein that she suffered numerous injuries and damages as a result of Dr. Polizzi’s improper insertion of a “Safety Coil” intrauterine device (IUD) into her uterus and/or because of a defect or defects in the “Safety Coil” IUD manufactured by Schmid Laboratories. Both defendants filed exceptions of prescription. The trial court sustained the exceptions and dismissed plaintiff’s suit. The court of appeal affirmed the ruling on Schmid Laboratories’ exception, but reversed the trial court ruling on Dr. Polizzi’s exception, overruling that exception and remanding the case to the trial court for further proceedings. This Court granted Dr. Polizzi’s application for a writ of certiorari to review the court of appeal decision on his exception.

FACTS

According to Helen Sciacca’s petition, on or about April 18, 1972 she entered into a contract with Dr. Polizzi under the terms of which Dr. Polizzi was to perform medical services and supply to her a means of preventing conception. In the course of the performance of this contract, the doctor recommended a “Safety Coil” a/k/a “Saf-T-Coil” intrauterine device as the method of birth control for plaintiff. Plaintiff alleges that Dr. Polizzi warranted to her that this IUD was harmless and that insertion of the device in the uterus was safe.

On April 18, 1972 at Slidell Memorial Hospital, Dr. Polizzi inserted the IUD in Ms. Seiacca’s uterus. Plaintiff began to experience severe abdominal pains in January of 1974 and on February 9,1974 doctors surgically removed the IUD. According to Ms. Sciacca, the IUD had punctured her uterus and otherwise caused damage to her reproductive organs necessitating removal of both fallopian tubes and one ovary in order to save her life. As a result, plaintiff alleges she is permanently sterile.

Ms. Sciacca also alleges severe post-operative complications. Approximately six months after the February 9 surgery, she underwent emergency surgery to remedy massive infection and blockage in the small intestine and other areas of her abdomen due to a union of the small intestine and uterus in the course of the healing of the puncture wounds from the IUD. She was subsequently hospitalized after this surgery because of severe abdominal bleeding and swelling and another infection and small intestine obstruction. Plaintiff also developed a “serum sickness” or allergic reaction to some of the medication prescribed to her in the course of her treatment and her neck became swollen and her body covered with hives. Plaintiff alleges that this “serum sickness” is permanent.

At issue in this case is the prescriptive period applicable to a suit by a patient against her physician. Plaintiff contends that the allegations of her petition set out a suit in contract (for damages for the breach of that contract) and that the ten year liberative prescriptive period for personal actions provided by Civil Code art. 3544 governs her suit. Defendant takes the position that plaintiff’s action is in tort and that the controlling prescriptive period for that action is the one year period applicable to quasi-offenses provided by Civil Code art. 3536.

Retroactivity of R.S. 9:5628

In 1975 the Louisiana Legislature promulgated a law specifically limiting the time period in which an action for damages for injury or death may be filed against a physician. That statute, R.S. 9:5628, provides as follows:

“A. No action for damages for injury or death against any physician, chiropractor, dentist, or hospital duly licensed under the laws of this state, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
“B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.” Added by Acts 1975, No. 808, § 1. Amended by Acts 1976, No. 214, § 1.

This Court determined in Lott v. Haley, 370 So.2d 521 (La. 1979) that this prescriptive statute, which became effective on September 12, 1975, would not be applied retroactively to the facts of that case. We recognized that, although statutes of limitation are remedial in nature and are generally applied retroactively, a retroactive application of this statute would operate to eliminate the plaintiff’s vested right to sue on his preexisting January 21, 1972 cause of action since the statute did not provide a reasonable period following its enactment for the assertion of a claim within its purview. The plaintiff’s action would have prescribed had the statute been applied since his suit was filed more than three years from the date of the alleged act, omission or neglect, but would not have prescribed under preexisting law.

In the instant case we find that plaintiff discovered or should have discovered the existence of facts that would entitle her to bring suit against defendant by at least February 9,1974 when the IUD inserted by defendant was surgically removed and it was determined that there was damage to her reproductive organs. For the reasons discussed below we find that Ms. Sciacca’s suit had prescribed prior to the May 13, 1976 filing date either in accordance with our interpretation of the law as it existed prior to the enactment of R.S. 9:5628 or by application of that statute. Therefore, it is unnecessary to rule on the retroactive application of the statute in this case.

Prescriptive Period Applicable to Medical Malpractice Suits

The controlling prescriptive period in medical malpractice suits that are not governed by R.S. 9:5628 is determined by the nature of the plaintiff’s cause of action. There is a conflict among the states as to the applicable prescriptive period, 61 Am.Jur.2d, Physicians, Surgeons, etc., § 316, p. 466, and among the appellate courts within this jurisdiction (see discussion below). The conflict results from differing opinions as to whether a suit by a patient against his physician for alleged wrongdoing is a suit in tort, which would be governed in our jurisdiction by the one year prescriptive period of Civil Code art. 3536, or a suit in contract, in which case the ten year prescriptive period of Civil Code art. 3544 would apply.

The issue was first directly addressed in the context of Louisiana law in Kozan v. Comstock, 270 F.2d 839 (5th Cir. 1959). The Fifth Circuit applied Louisiana law and concluded that absent a special warrant or contract a malpractice suit against a physician is a tort action that is subject to the tort prescriptive period. Judge Wisdom set out the following rationale for this conclusion:

“It is the nature of the duty breached that should determine whether the action is in tort or in contract. To determine the duty one must examine the patient-physician relationship. It is true that usually a consensual relationship exists and the physician agrees impliedly to treat the patient in a proper manner. Thus, a malpractice suit is inextricably bound up with the idea of breach of implied contract. However, the patient-physician relationship, and the corresponding duty that is owed, is not one that is completely dependent upon a contract theory. There are instances in which the relationship exists though there is clearly no contractual relationship between the patient and the physician. Thus, the patient may be incapable of contracting or a third person may have contracted with the physician for the treatment of the patient. Even in these instances in which no contract is present the physician still owes a duty to the patient. The duty of due care is imposed by law and is something over and above any contractual duty. Certainly, a physician could not avoid liability for negligent conduct by having contracted not to be liable for negligence. The duty is owed in all cases, and a breach of this duty constitutes a tort. On principle then, we consider a malpractice action as tortious in nature whether the duty grows out of a contractual relation or has no origin in contract. This view that malpractice suits are tortious in nature probably represents the majority view.
“We do not mean to say that there can never be a contractual action against a physician. Generally, a physician undertakes only to utilize his best skill and judgment. When he negligently fails to do so he may have committed a tort. However, a physician may, by express contract, agree to effect a cure or warrant that a particular result will be obtained. In such instances an action in contract may lie against a physician. However, in the absence of a special warranty or contract, a malpractice suit against a physician is an action in tort and is subject to the limitation period for tort actions.”

270 F.2d at 844-845.

This Court basically took the same approach in Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963), as had the Fifth Circuit in Kozan, and reached the same result. Writing for a unanimous Court, Chief Justice Fournet held that when a physician undertakes the treatment of a case he doesn’t guarantee a cure and the law does not impose an implied undertaking to cure, but only an undertaking to use ordinary skill and care. The Court noted that a physician could specifically contract to cure, and would be liable on his contract should he fail to do so. After concluding that the defendant in that case (a dentist) had made no contract warranting any particular result, the Court dismissed plaintiff’s claim.

We recently reaffirmed the view that medical malpractice claims are subject to a tort prescriptive period. In Lott v. Haley, supra, in the course of discussing the retro-activity of R.S. 9:5628, we stated:

“Prior to enactment of La.R.S. 9:5628, medical malpractice claims were subject to a one-year prescriptive period, commencing to run from the date the injured party discovered or should have discovered the existence of facts that would entitle him to bring suit. La. Civil Code arts. 3536, 3537; Cartwright v. Chrysler Corp., 255 La. 598, 232 So.2d 285 (1970).” 370 So.2d at p. 523.

The First Circuit Court of Appeal in the instant case did not follow these cases but instead held that a negligent act of malpractice by a physician can constitute either an offense or a breach of contract for services entered into between the doctor and his patient. The court held that plaintiff had stated a cause of action in contract which would prescribe in ten years despite the fact that it did not find a warranty or guarantee of a specific result. The court followed its previous holding in Henson v. St. Paul Fire & Marine Ins. Co., 354 So.2d 612 (1st Cir. 1977), reh. den. 1978, writ granted 1978. This Court affirmed the result in Henson without reaching the issue of the applicable prescriptive period, 363 So.2d 711 (La. 1978), reh. den. 1978.

There is a split among the circuits of this jurisdiction on the issue of the applicable prescriptive period in medical malpractice suits. The Fourth Circuit indicated in Creighton v. Karlin, 225 So.2d 288 (4th Cir. 1969), writ den., 254 La. 842, 227 So.2d 590 (1969), that an express warranty of result was not required for an action in contract. Again, the First Circuit also subscribes to this view. The Second and Third Circuits follow the Phelps rule that a medical malpractice action is delictual in nature unless the physician warrants or promises a particular result. Ball v. Siess, 351 So.2d 845 (2nd Cir. 1977); Carroll v. Aetna Casualty & Surety Co., 363 So.2d 726 (2d Cir. 1978); Sumerall v. St. Paul Fire & Marine Insurance Co., 366 So.2d 213 (2nd Cir. 1978); Zeno v. Lincoln General Hospital, 376 So.2d 1284 (La.App. 1979), reh. den. 1979; Steel v. Aetna Life & Casualty, 304 So.2d 861 (3rd Cir. 1974), writ den., 315 So.2d 144 (La. 1975); Dauzat v. St. Paul Fire & Marine Ins. Co., 336 So.2d 540 (3rd Cir. 1976).

We hold that the better view is the one adopted in Phelps v. Donaldson, supra, and we continue to ascribe to that view. The appellate eases to the contrary are expressly overruled. Unlike engineers, mechanics and shipbuilders, a physician does not, simply by undertaking the treatment of a case, contract with a patient for a specific result. When a patient is injured by the negligence of his physician, his action against that physician is one in tort, unless the physician has contracted with the patient for a specific cure or result. The action is essentially one for injuries caused by negligence, and the statute of limitations governing negligence actions is the applicable statute regardless of the form of action by which liability is sought to be enforced. 61 Am.Jur.2d, Physicians, Surgeons, etc., § 316. See also Prosser, Law of Torts, Chapter 16, “Tort and Contract”, p. 613.

Ms. Sciacca discovered or should have discovered the existence of facts that would entitle her to bring suit against defendant by February 9, 1974. On that date surgeons removed the IUD from her uterus, allegedly found that her uterus had been perforated by the IUD, determined that her reproductive organs were damaged, and removed both fallopian tubes and one ovary. Plaintiff did not file this suit until May 13, 1976. Plaintiff’s tort suit is clearly prescribed either under the one year prescriptive period applicable to medical malpractice suits prior to the enactment of R.S. 9:5628, or under the terms of that statute.

Suit for Breach of Contract

Plaintiff argues that defendant warranted the IUD which he inserted into her uterus, and also warranted that the insertion of the IUD was safe. She argues that she has alleged sufficient facts to bring her suit within the Phelps “warranty exception” to the general rule that medical malpractice suits are governed by tort prescription. Plaintiff strongly urges that the burden was on defendant, Dr. Polizzi, who raised an exception of prescription to her suit, to refute her allegations of warranty, and that defendant did not do so. If plaintiff’s suit does fall within the warranty exception her suit will be timely since the ten year prescriptive period of Civil Code art. 3544 would be applicable.

In Phelps v. Donaldson, supra, this Court expressed its view that where a physician warranted a result to a patient, that patient may have an action against the doctor for breach of contract. In the instant case, plaintiff does not allege that Dr. Polizzi warranted a result (e.g. that the IUD would be successful in performing its function and Ms. Sciacca would not become pregnant), but warranted a device — the IUD. Even assuming that the warrant of a device used by a physician in the course of his treatment of a patient establishes an actionable contract between the physician and the patient, our review of the hearing on defendant’s exception of prescription shows that defendant met his burden of proof and refuted any warranty of the IUD.

Dr. Polizzi was the sole witness on the trial of the exception. He testified that plaintiff, a registered nurse, came into his office requesting an IUD. He did not enter into any written contract with Ms. Sciacca and he considered their relationship a normal doctor/patient relationship. Dr. Polizzi testified as follows in response to pertinent questioning at the hearing on the exception of prescription:

“Q. Did you in fact insert an intrauterine device in Ms. Sciacca?
A. Yes, I Did.
Q. In that connection, did you ever tell her that you guaranteed that this device would prevent her from being pregnant, for example?
A. No, I did not.
Q. Did you ever tell her that you guaranteed that there were no — and would be no complications from the insertion of this device?
A. No, I did not.
Q. Did you guarantee to her any of your services — that your services would produce a given or particular result?
A. No, I did not.
Q. Did you use any words other than the word “Guarantee” as to — in a nature of making assurances to Mrs. Sciacca, and if so, what did you say, if anything?
A. Not any more than we tell anyone going to surgery, that complications are possible; we didn’t expect any, but there were complications that could happen.”

Defendant did testify that there were “package inserts” in the packages sent to him from the manufacturer or supplier of the IUD, and that there were statements in these inserts that the IUD could be retained in the uterus indefinitely. He stipulated however that he was not sure that he gave the insert to Ms. Sciacca. There was information on the packages to the effect that the IUD could perform its single purpose, to prevent conception safely, with no untoward side effects. Dr. Polizzi stated that he doubts that he would have communicated this information to the plaintiff in this manner since he does not agree with that statement.

Plaintiff points to the following testimony in support of her position that defendant did not refute the warranties she alleged in her petition:

“Q. . . . Now, you have testified that you knew that Helen Sciacca was an R.N. and that she should have known all about this, or known all about IUDs, as I understood your testimony.
A. Yes. She requested the IUD. I assume she knew all about it.
Q. Is it your testimony then perhaps that you did not fully discuss all of these different aspects, varying aspects, of the IUD with her?
A. I don’t know what I discussed. That’s been a long time.
Q. In other words, you can’t remember the specific discussion at hand?
A. No, I can not.”

In our view, defendant adequately refuted the warranties alleged by plaintiff. At the outset of his testimony, he specifically refuted any warranty of the IUD. He was unsure whether he had given Ms. Sciacca any package inserts from the manufacturer of the IUD. He testified that there were statements in the inserts that the IUD could be retained in the uterus indefinitely. Even assuming that Dr. Polizzi gave the insert containing this information to plaintiff and that he adopted this statement of the manufacturer as his own warranty of the product, we do not regard this language in the insert as constituting a warranty of the IUD. Dr. Polizzi further testified that he did not agree with the statement on the IUD package that the IUD could perform its single purpose, to prevent conception, safely with no untoward side effects and doubts that he would have communicated such information to his patient.

Finally, Dr. Polizzi’s testimony, which is emphasized by plaintiff, that he did not remember a certain discussion with Ms. Sci-acca regarding various aspects of the IUD does not negate or contradict Dr. Polizzi’s specific denial of any warranties. This particular testimony can most fairly be taken to show that the doctor may not have fully discussed all of the different and varying aspects of the IUD with her, rather than an indication that he may have warranted the IUD.

For the above reasons we hold that plaintiff’s suit against Dr. Polizzi constituted a tort action, i.e. a suit for damages for personal injuries resulting from alleged improper insertion of an IUD or the insertion of an unsafe device in plaintiff’s uterus. Plaintiff’s suit in tort has prescribed. We reverse the court of appeal ruling that a malpractice suit against a physician, even absent warranties by the physician, is a suit in contract. Although plaintiff alleged in her petition that Dr. Polizzi made certain warranties to her which might serve as the basis for a suit for breach of contract, in which case plaintiff’s suit would not be prescribed, defendant adequately refuted those warranties. Consequently, we dismiss plaintiff’s suit against defendant.

REVERSED.

DIXON, C. J., concurs.

DENNIS, J., dissents with reasons.

      "17 Miller, the Contractual Liability of Physicians and Surgeons, 1953 Wash. U.L.Q. 413; Note, 32 Ind.L.J. 528 (1957); 41 Am.Jur. Physicians and Surgeons § 122; 70 C.J.S. Physicians and Surgeons § 57.

      "18 if the physician has guaranteed a cure or warranted a certain result then the courts of other states are more prone to look upon an action by the patient as one in contract. See cases annotated in 74 A.L.R. 1262 and 15 A.L.R. 1031.”


author: LEMMON, Justice. MARCUS, Justice

text:
    Etna STAFFORD v. CITY OF BATON ROUGE and Parish of East Baton Rouge.
    No. 81-C-0556.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      Guy A. Módica, of Guy A. Módica, Ltd. (A Professional Corporation), Baton Rouge, for plaintiff-applicant.
    Walter G. Monsour, Jr., Parish Atty., Samuel R. Cicero, Asst. Parish Atty., for defendant-respondent.
   LEMMON, Justice.

This case presents the issue of whether the requirements of R.S. 23:631 et seq., pertaining to the duty of an employer to pay wages due to an employee upon discharge or resignation, apply when a governmental agency is the employer. We hold that the statutes apply equally to both private and governmental employers.

When plaintiff was discharged from her employment with the City-Parish of East Baton Rouge, she immediately demanded the wages owed to her. Defendant at first denied any wages were due, but after plaintiff filed this suit, defendant moved for a summary judgment, asserting the inapplicability of the statute to governmental employers. The trial court granted the summary judgment, and the court of appeal affirmed. 393 So.2d 399. We granted cer-tiorari to review these rulings. 397 So.2d 1367.

In Barcena v. City of New Orleans, 221 La. 652, 60 So.2d 74 (1952) this court held that the obligation imposed by R.S. 23:631 upon a “person, individual, firm or corporation” to pay wages to discharged employees within a specific period does not apply to municipalities. Although the court did not state the reasoning underlying its decision and did not expressly refer to governmental immunity, that doctrine prevailed in the state at the time and undoubtedly influenced the court’s decision.

The doctrine of governmental immunity has since been rejected jurisprudentially and by express provision in the 1974 Constitution. In rejecting the doctrine, this court found no compelling basis for treating a tort committed by a state employee differently from a tort committed by a private citizen or by the employee of a private corporation.

Using the same rationale, we expressly overrule the Barcena case and its progeny, finding no compelling reason to relieve a governmental employer from the statutory obligation imposed on all employers to pay wages to an employee immediately upon discharge or termination. The employees of governmental agencies need their wages upon cessation of employment just as urgently as the employees of individuals or of private corporations. Furthermore, the Legislature, although expressly recognizing this special need of all employees to receive wages due him immediately upon discharge or termination, has not seen fit to distinguish between governmental and private employers in imposing the obligation upon employers to pay immediately the wages due upon cessation of employment. We decline to imply that the Legislature intended such a distinction, and we have not been shown any rational basis for a constitutional classification if the Legislature did intend to distinguish between employers.

Accordingly, the summary judgment rendered by the trial court and affirmed by the court of appeal is reversed. The matter is remanded to the trial court for further proceedings.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., concurs.

MARCUS, Justice

(dissenting).

In my view, La.R.S. 23:631 is not applicable here. The statute is penal in nature and therefore subject to strict construction. In Barcena v. City of New Orleans, 221 La. 652, 60 So.2d 74 (1952), we held that Act 138 of 1936 which imposed upon “a person, individual, firm or corporation” the duty of paying their discharged employees within 24 hours after dismissal, did not apply to those engaged in public service. We noted that the term “corporations,” appearing in the statute, was used in its ordinary sense meaning private corporations and was not intended to include municipalities. Therefore, the Court of Appeal, First Circuit, in Hayes v. Louisiana Wildlife and Fisheries Com’n, 165 So.2d 556 (La.App. 1st Cir. 1974), writs refused, held that the word “person” substituted in the Revised Statutes of 1950 for the phrase “person, individual, firm or corporation” contained in Act 138 of 1936 included in its common and ordinary sense natural persons and corporations but not state agencies and municipalities. I agree as did the courts below. Accordingly, I respectfully dissent.

      . See Board of Comm’rs of the Port of N.O. v. Splendour Shipping & Enterprises Co., 273 So.2d 19 (La.1973); La.Const. Art. XII, § 10(A) (1974).

      . Plaintiff received the wages due her 22 months after her termination, according to the facts stated in the trial court’s reasons for judgment.

      . In Lewis v. Orleans Parish Sch. Bd., 371 So.2d 328 (La.App. 4th Cir. 1979) the court declared in dicta that R.S. 23:1201.2(A), which provides for attorney’s fees in the event of an arbitrary refusal to pay workmen’s compensation, is applicable when a governmental agency is the employer. The statutes in the Lewis case and in the present case were designed to protect employees from arbitrary actions by employers.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Louis RUFFIN, Jr.
    No. 81-K-0612.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    William G. Conly, of Hargrove, Guyton, Ramey & Barlow, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Chief Justice.

At issue here is the effect on a plea of guilty by a defendant whose probation had been revoked, when the judgment revoking the probation was later rescinded.

Louis Ruffin, Jr. pleaded guilty to simple burglary on May 2, 1978; he was sentenced to four years at hard labor, suspended, and was placed on active probation for five years, subject to serving nine months in the parish jail.

More than a year later — on September 5, 1979 — defendant pleaded guilty to simple battery in the Shreveport City Court; he was sentenced to six months in jail, consecutive to any other sentence. Based on that plea of guilty, defendant’s probation was revoked in the district court on November 21,1979. Then on January 14, 1980 defendant pleaded guilty to a misdemeanor theft charge arising out of conduct which occurred on June 23, 1979; he was sentenced to six months in jail, concurrent with any other sentence.

On November 7, 1980 defendant filed a post conviction proceeding in the city court seeking to set aside the plea of guilty to battery entered September 5, 1979. The city court vacated the sentence, the defendant was allowed to withdraw his guilty plea, and the prosecutor entered a nolle pros.

Then, in the district court, defendant attacked the probation revocation of November 21, 1979; at this point came the order, the effect of which is at issue. The court rescinded the probation revocation order and ordered the defendant released.

A week later, on January 20, 1981, the probation officer petitioned the court to revoke the probation for the January 14, 1980 plea of guilty to misdemeanor theft. On February 13, 1981 the probation was revoked and the original four year sentence was reinstated, with credit for time served.

We granted defendant’s application on his argument that he was not on probation on January 14, 1980; that his probation had been revoked on November 21,1979; that if he had not believed that he had nothing to lose by a six month concurrent jail sentence (he was then serving his four year prison sentence) he would have never pleaded guilty to the theft charge; that his plea of guilty was not knowingly and intelligently made, and should be set aside; and, finally, since his second probation revocation was based on an invalid plea, that revocation should be rescinded.

The record belies defendant’s argument. Defendant testified that he knew that a guilty plea could be used to revoke his probation. What defendant did not know was: that he would receive a favorable ruling on December 15, 1980 that his September 5, 1979 plea of guilty was invalid because he was not advised of his right to counsel; that on January 13, 1981 the district court would rule in defendant’s favor and rescind the order revoking his probation.

On January 14, 1980 defendant’s plea was knowingly and intelligently made. The trial judge is not required to inform the accused of all the possible consequences of the plea, nor of all the possible peripheral effects the plea might have in the future. State v. Muse, 367 So.2d 789 (La.1979); State v. Lewis, 366 So.2d 1355 (La.1978); State v. Jackson, 362 So.2d 1082 (La.1978); State v. Hoffman, 345 So.2d 1 (La.1977).

No grounds for setting aside the January 14, 1980 plea of guilty appear in the record. Therefore, the February 13, 1981 ruling of the district court revoking the defendant’s probation and reinstating the original four year sentence with credit for time served was correct.

The ruling of the district court is affirmed.

       Judges J. Burton Foret, Jimmy M. Stoker and P. J. Laborde, Jr. of the Third Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


text:
    STATE of Louisiana v. Edward L. HATHAWAY.
    Nos. 81-K-0616, 81-K-0617.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Larry Arbour, West Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Lavalle Salomon, Asst. Dist. Attys., for plaintiff-respondent.
   BLANCHE, Justice.

We granted writs of certiorari to consider the overruling of the Cotton Belt Insurance Company’s (referred to as Cotton Belt) motion to be released from all obligations under bond.

In the case bearing docket number 81-K-0616 in this Court the defendant, Edward L. Hathaway, was arrested for possession of cocaine with the intent to distribute. He initially posted bond through a personal surety, Camille Hathaway, on May 7, 1979. Subsequently, on October 25, 1979, that bond was posted by a professional surety, Cotton Belt, for $3,000.

Defendant ultimately pleaded guilty on March 18, 1980 and was ordered to appear for sentencing on April 30, 1980. When the defendant failed to appear, he was called on his bond.

On May 12, 1980 a signed judgment was rendered decreeing the forfeiture of the defendant’s appearance bond against the defendant and Camille Hathaway. This was error, as Camille Hathaway had been released as surety and the judgment should have been rendered against Cotton Belt.

On September 11, 1980 an amended judgment was rendered against the defendant and Cotton Belt for the defendant’s failure to appear for his sentencing on April 30, 1980. The Clerk of the Fourth Judicial District Court mailed the Notice of Forfeiture to Cotton Belt on September 15, 1980. This was the first and only notice given to Cotton Belt that the defendant had failed to appear for sentencing on April 30, 1980, and simple calculation reveals that that notice came to Cotton Belt over 120 days after the judgment decreeing the bond forfeiture.

In the case bearing docket number 81-K-0617 in this Court, the same defendant, Edward L. Hathaway, was arrested for possession of cocaine, possession of marijuana (second offense) and possession of marijuana (second offense). The defendant made bond through Cotton Belt on October 25, 1979 for a total amount of $5,000.

Ultimately, as a result of a plea bargain, the defendant pleaded guilty on March 18, 1980 to one count of simple possession of marijuana and one count of attempted possession of a controlled dangerous substance. The defendant was ordered to appear for sentencing on April 30, 1980. When the defendant failed to appear, he was called on his bond.

On May 12, 1980 a signed judgment was rendered decreeing the forfeiture of defendant’s appearance bond against the defendant and Cotton Belt for $3,500. This was error, as Cotton Belt was responsible for $5,000, not $3,500.

On September 11, 1980 an amended judgment was rendered against the defendant and Cotton Belt for the defendant’s failure to appear for his sentencing on April 30, 1980. This amended judgment was for $5,000. Notice of the bond forfeiture was mailed to Cotton Belt on September 11, 1980; however, the bond total was stated to be $3,000. This was the first and only notice given to Cotton Belt that the defendant had failed to appear for sentencing on April 30, 1980, and simple calculation reveals that that notice came approximately 120 days after the judgment decreeing the bond forfeiture.

On February 12, 1981 Cotton Belt filed a motion to be released from all obligations under bond pertaining to both 81-K-0616 and 81-K-0617. Cotton Belt based its motion on the ground that they did not receive the notice of forfeiture as required by R.S. 15:85. The motion was heard on February 23, 1981 and overruled the next day.

We find merit in Cotton Belt’s assertion that the notice requirements of R.S. 15:85(A) were not met, and we reverse the trial court’s ruling on that basis alone. R.S. 15:85(A) provided in pertinent part:

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

Clearly, under this statute, this surety should be released from all of its obligations under bond in these eases, for Cotton Belt was not notified within sixty days of the entry of forfeiture. As discerned from the foregoing factual recitation, it is obvious that Cotton Belt was not notified until approximately one hundred and twenty days had elapsed.

Recently, we said in State v. DeLa-Rose, 391 So.2d 842 (La.1980), that in order to obtain a judgment of bond forfeiture against a surety, the state must comply strictly with the terms of the statute regulating bond forfeitures. We affirm that position and find that the state did not comply strictly with the terms of the then applicable statute as Cotton Belt, the surety, was not given proper notice within sixty days after the entry of forfeiture.

Even using the most liberal calculation in favor of the state by using May 12, 1980 as the date for the judgment of bond forfeiture instead of April 30, 1980, we find the state did not approach the sixty day requirement. In both 81-K-0616 and 81-K-0617, a signed judgment was rendered. In 0616, the wrong surety was given, and in 0617, the wrong amount was given. These clerical errors can only be attributed to the state. Then in both cases, Cotton Belt was not informed until the amended judgment on September 11,1980 at the earliest. That is, by far, greater than sixty days from when the original signed judgment was rendered against the defendant and the surety (May 12, 1980).

We choose not to excuse these clerical errors, for the surety should have been promptly notified of the defendant’s failure to appear so that he, the surety, could have had a reasonable chance of locating the vanished defendant.

We find that the four month delay between the judgment forfeiting the defendant’s bond in 81-K-0616 and 81-K-0617 and the mailing of the judgment of forfeiture was not in compliance with the then applicable R.S. 15:85(A). For this reason, the ruling overruling Cotton Belt’s motion to be discharged from its obligations under the bond is reversed and Cotton Belt is discharged from this obligation in both cases.

REVERSED.

      . The minute entry for April 30, 1980 shows that the defendant was not present in court for sentencing and was “called on his bond”. This procedure is irregular for the court was required by statute, R.S. 15:85(A), to forfeit the defendant’s bond “forthwith” after proof of the defendant’s failure to appear, and service or attempted service on the surety, on the motion of the district attorney. The formal signing of the judgment of bond forfeiture was not the date on which the bond was forfeited, as the formal signing on May 12, 1980 does not comply with the “forthwith” provision of the statute. However, for the purposes of this case we will use May 12, 1980 as the date on which the bond was forfeited for the defendant’s failure to appear, for the minute entry for the first time shows a judgment of bond forfeiture on that date.

      . Cotton Belt’s other assignment of error contends that the initial judgment forfeiting the bond is invalid, for it, as surety, never received service of the fixing for defendant’s appearance at his sentencing on April 30, 1980, which is likewise a violation of R.S. 15:85(A). The state answers by citing C.Cr.P. art. 337, which provides that if the principal appears in open court and the proceeding is continued to a specific date, the surety need not be given notice of the new appearance date. Since Hathaway had appeared March 18, 1980 to enter his guilty plea and was ordered to return for sentencing on April 30, 1980, the state argues no notice to the surety was required. We need not determine the validity of the initial judgment, for even assuming it was properly rendered, we reverse for the reasons given in this opinion.

      . R.S. 15:85(A) was amended by Acts 1980, No. 639, § 1, effective September 12, 1980. It changed the 60 day period to 6 months. However, by the effective date of the amendment, Cotton Belt’s rights had vested.