author: HERSEY, Judge.

text:
    Ethel Mae LACY, Appellant, v. STATE of Florida, Appellee.
    No. 79-883.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1980.
    Rehearing Denied Oct. 1, 1980.

      Jon H. Gutmacher and Thomas Cazel, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant was found guilty by a jury of the crime of manslaughter. She appeals the judgment and sentence on three grounds: insufficiency of the evidence, illegality of the sentence and erroneous jury instructions. The first two grounds are without merit. The third basis urged for reversal raises an issue which requires clarification.

The jury instruction which appellant complains of is a standard jury instruction which reads as follows:

Excusable homicide is homicide which is committed by accident and misfortune in doing any lawful act by lawful means with usual, ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.
Homicide is excusable and lawful if committed by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat without any dangerous weapon being used and not done in a cruel or unusual manner. But if such killing is done by the use of a dangerous weapon or in a cruel or unusual manner, it is manslaughter.
A sudden and sufficient provocation is something which would naturally and instantly produce in the mind of an ordinary person the highest degree of anger, rage, resentment or exasperation.
The heat of passion is anger, rage, resentment, or exasperation so intense as to overcome or suspend the use of ordinary judgment and to render the mind of an ordinary person incapable of calm reflection.
A dangerous weapon is any weapon which taking into account the manner in which it is used is likely to produce death or great bodily harm. (Emphasis added.)

See Florida Standard Jury Instructions in Criminal Cases, Excusable Homicide. Appellant maintains that this instruction is ambiguous and confusing.

The statute upon which appellant’s defense rested, Section 782.03, Florida Statutes (1979), provides: *

Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

The instruction is a nearly verbatim quotation of the statute with some additional language. We are loathe to fault the trial court for correctly stating the law in his charge to the jury. Where standard jury instructions are involved, having been approved by the supreme court in In re Standard Jury Instructions in Criminal Cases, 327 So.2d 6 (Fla.1976), we are understandably reluctant to find grounds for reversal absent a clear showing that the rights of the accused have been meaningfully prejudiced by the instruction under review. It is, of course, appellant’s position that her case was so prejudiced by this particular instruction. Her specific contention is that the jury could have interpreted the instruction in the following manner:

A homicide is excusable:
(1) when the homicide is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent and without a dangerous weapon being used;
(2) when the homicide is committed by accident and misfortune in the heat of passion, úpon any sudden and sufficient provocation, without a dangerous weapon being used;
(3) when the homicide is committed upon a sudden combat, without a dangerous weapon being used and not done in a cruel or unusual manner.

There is nothing either in the record or arising by implication from the verdict which suggests that the jury adopted such an interpretation of the law applicable to this case. We do not speculate with appellant that the verdict was inextricably bound to such an interpretation, particularly since the evidence strongly supports the contrary view. We are required to presume that the jury acted properly as to matters which necessarily inhered in its verdict. Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976).

The victim, appellant’s husband, was a police officer. After almost ten years of marriage he began having an affair with Sally, a -former girl-friend. Appellant threatened divorce. A property settlement agreement was executed followed by a futile attempt at reconciliation. On the day of the shooting, appellant, by prior arrangement, met with Sally at a restaurant to discuss the situation. Sally testified that appellant stated she would kill her husband rather than give him up. The exact quotation was: “Well, you won’t have him. I am going to kill him if I have to kill him today when he goes to work.” Appellant’s version of the conversation was that she stated that she was going to fight to keep her husband. After this conversation and upon seeing her husband drive into the parking lot of the restaurant, appellant ran out, drawing a .38 caliber revolver from her purse. She aimed it at his head and ordered him into the car. She fired the gun once into the air then got into the car beside him. He drove the car out of the parking lot.

Appellant testified that, once out of the parking lot, she put the uncocked gun in her lap with two fingers resting on the trigger. She suddenly lost her balance, her arm struck the dashboard and the gun accidently fired killing her husband.

There was testimony to the effect that after the incident, appellant, in reply to a question as to why she shot her husband, stated that it was because he was having an affair with another woman. There was also testimony that she said she had shot her husband but didn’t mean to do it, that the car hit a bump causing the gun to be fired accidentally.

Appellant’s argument is that since a dangerous weapon was admittedly involved, the jury was prevented from considering her defense of accident in a proper light because the instruction was ambiguous. Necessarily, then, if the offending language “if such killing is done by the use of a dangerous weapon . . . it is manslaughter” were totally removed from the charge to the jury, a different verdict could have resulted. This can be tested analytically.

The first phrase of the excusable homicide instruction reads:

(1) Excusable homicide is homicide which is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent

While it might be possible for a jury to believe that appellant did not intentionally pull the trigger while aiming the revolver at the victim’s head, there is simply no interpretation that could be placed upon the circumstances involved here that would support a finding that appellant was doing a lawful act by lawful means, let alone acting with usual, ordinary caution. By her own admission she committed assault and was in the process of a kidnapping. Her actions could only be described as both reckless and lawless. Thus, whether the jury believed that the homicide could only be considered excusable if no dangerous weapon were involved is totally immaterial. They could not have acquitted appellant under this paragraph of the instruction in either event.

The next portion of the instruction is as follows:

Excusable homicide is homicide which is committed ... by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation

The events leading up to the shooting here extended over several months. There was no sudden provocation nor heat of passion to bring this part of the instruction into play. Again, whether the jury believed that the use of a dangerous weapon would negate the applicability of the defense of accident under this part is totally immaterial. It simply did not apply.

And finally, the third paragraph of the instruction, dealing with a sudden combat, is limited by the unequivocal language of the statute to those situations where no dangerous weapon was involved. Even if it were not, there is no evidence of a sudden combat and appellant’s testimony supports a conclusion that there was none.

We therefore conclude that the instruction, whether or not ambiguous in the manner appellant suggests, could not have prejudiced her rights in view of the facts in this case.

While not essential to our holding in this case we observe that appellant failed to preserve this point for appeal. At the charge conference there was some discussion as to the clarity and meaning of the charge for excusable homicide but there was no clear objection made. Rule 1.470(b) of the Florida Rules of Civil Procedure, referring to instructions to the jury and particularly to the charge conference provides in pertinent part:

At such conference all objections shall be made and ruled upon and the court shall inform counsel of such general charges as it will give. No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same.

We affirm the judgment and sentence in all respects.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


source: Caselaw Access Project

author: ELLIS, Justice Ad Hoc. CALOGERO, Justice,

license: Public Domain

text:
    Karen Townsend BROWN v. Donald R. BROWN.
    No. 66429.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied Sept. 19, 1980.

    Kenneth Rigby, Love, Rigby,' Dehan, Love & McDaniel, Shreveport, for plaintiff-applicant.
    Allen Howard Coon, Monroe, for defendant-respondent.

       Calogero, Watson and Lemmon, JJ., would grant a rehearing.

   ELLIS, Justice Ad Hoc.

Plaintiff Karen Townsend Brown was divorced from her husband, Donald R. Brown, by judgment of the Chancery Court of Union County, Arkansas, on June 10,1977. In that suit she prayed for and was granted the divorce, and custody of four minor children. Alimony was not prayed for and the judgment was silent on that point.

This suit was filed in August, 1978, asking that the Arkansas judgment be given full faith and credit; that she be awarded custody of the children; and that she be awarded alimony and child support. Defendant did not contest his obligation to pay child support, but filed a peremptory exception of res judicata as to the demand for permanent alimony. The exception was sustained in the trial court, and that judgment affirmed in the Court of Appeal. Brown v. Brown, 377 So.2d 438 (La.App. 2nd Cir. 1979). We granted certiorari to review the propriety of the judgment.

The common law rule of res judicata is much broader than the civilian rule which applies in Louisiana. Arkansas applies the broader common law rule. In Miller v. Miller, 209 Ark. 505, 190 S.W.2d 991 (1945) the Arkansas Supreme Court said:

“In the case of Nelson v. Nelson, 146 Ark. 362, 225 S.W. 619, 620, this court said:
Tt follows also that the allowance of attorney’s fees must be reversed. At Section 49 of the article on Alimony in 1 R.C.L., at page 902, the law is announced as follows: ‘As a general rule, an action for alimony cannot be brought after the rendition of a judgment for divorce, even though the decree is silent on the matter; for, as the question of alimony might, and should, have been litigated therein, such decree operates as res judicata as to the question of alimony.’ See, also, 7 R.C.L., p. 792.
‘The original decree undertakes to settle, and did adjudicate, the marital rights of the parties. The divorce granted was an absolute one, and terminates the husband’s liability for his wife’s obligations. He would thereafter be no more liable for her lawyer’s fees than he would be for any other contractual obligation which she had incurred.’

“In American and English Annotated Cases, vol. 40 (Ann.Cas.1916B), page 875, there is an extensive note or annotation on ‘Doctrine of Res Judicata as Applicable to Divorce Proceedings’; and on page 898 of that annotation, the rule is stated:

‘All questions concerning alimony which are or ought to be determined in a divorce proceeding are res judicata in a subsequent proceeding in the same jurisdiction.’
“See also 17 Am.Juris. 442, 482, 484. “There was no language in the divorce decree of September 25, 1944, reserving the question of alimony for subsequent disposition. When Mrs. Dessie Miller failed, either to have monthly payments of alimony provided in the decree of divorce, or to have the question of alimony reserved for further consideration, she allowed the decree to become res judicata on the question of alimony; . . .”

See also Ellis v. Ellis, 220 Ark. 639, 249 S.W.2d 302 (1952); Taylor v. Taylor, 153 Ark. 206, 240 S.W. 6 (1922).

We think it clear that plaintiff would be precluded from recovering alimony in Arkansas, since she neither asked for it in the Arkansas suit nor reserved her right to do so in the future.

Plaintiff, however, claims that Louisiana is not bound to apply the Arkansas rule of res judicata in its own courts. It is, of course, settled that this State will give fpll faith and credit to divorce decrees of other states which are unassailable in those states. U.S. Constitution, Art. 4, Sec. 1; Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966). In Golson v. Golson, 351 So.2d 100 (La.1977), this Court said:

“Article 4, Section 1 of the United States Constitution provides:
‘Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.’
“Pursuant to this grant of authority, Congress enacted the following statute:
‘The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory, or Possession thereto.
‘The records and judicial proceedings of any court of any such State, Territory, or Possession or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
‘Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.’ [Emphasis supplied.] 28 U.S.C. 1738.
“Under the statute, therefore, Louisiana should give the Tennessee divorce the same effect that Tennessee would give it. New York v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947); Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488 (1947).”

We therefore hold that the Arkansas judgment is entitled to full faith and credit, and we must give it the same preclusive effect that it would have in Arkansas. Plaintiff is precluded by that judgment from obtaining permanent alimony.

For the foregoing reasons, and for the reasons most capably expressed in the opinion of the Court of Appeal, the judgment is affirmed, at plaintiff’s cost.

Affirmed.

CALOGERO, J., dissents and assigns reasons.

WATSON, J., dissents.

CALOGERO, Justice,

dissenting.

I am not certain that res judicata bars assertion of a Louisiana right to post-divorce alimony in this case where both spouses now live in Louisiana and where the alimony issue was not litigated in the Arkansas divorce proceeding. This case appears to fall within the issue left open in Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269 (1933). In Yarbor-ough, supra the Supreme Court held that South Carolina was required to give full faith and credit to a Georgia judgment terminating a father’s obligation to support his daughter upon payment of a lump sum to a trustee for his daughter. The daughter in Yarborough was domiciled in South Carolina, but the father at the time of suit was still a resident of Georgia. The court noted however, that they did not decide whether South Carolina would have had the power to require the father if he were domiciled in South Carolina to make further provision for the support, maintenance, or education of his daughter. 290 U.S. at 213, 54 S.Ct. at 185.

Justice Stone, dissenting in Yarborough, supra, stated that full faith and credit “does not command that the obligations attached to a status, because once appropriately imposed by one state, shall be forever placed beyond the control of every other state, without regard to the interest in it and the power of control which the other may later acquire.” 290 U.S. at 219, 54 S.Ct. at 188. Justice Stone pointed out that it was universally accepted that a divorce decree which by its terms or by operation of law forbids remarriage could have no effect outside the state which rendered it. 290 U.S. at 217, 218, 54 S.Ct. at 187, 188.

In this case we should determine whether Louisiana under the circumstances presented here has sufficient interest in the subject matter to award post-divorce alimony notwithstanding the Arkansas jurisprudential rule that “what might have been” pleaded is barred by res judicata. See Reese and Johnson, “The Scope of Full Faith and Credit to Judgments,” 49 Col.L.R. 153 (1949). Because the majority takes a mechanistic approach to full faith and credit and does not squarely face this issue, I respectfully dissent.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Donald Reed BROWN.
    66195.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearing Denied Sept. 12, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Jr., Dist. Atty., Terry Johnson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Ulysses Gene Thibodeaux, Lake Charles, for defendant-appellant.
   DIXON, Chief Justice.

Donald Reed Brown was convicted of armed robbery (R.S. 14:64) and sentenced to fifty years at hard labor. In this appeal he complains that his warrantless arrest in his home was constitutionally deficient and tainted both the line-up which immediately followed the arrest and the subsequent in-court identification by the victim.

We hold that: “unless special circumstances are present, warrantless arrests in the home are unconstitutional” (Payton v. New York, 445 U.S. 573 p. 575, 100 S.Ct. 1371 p. 1374, 64 L.Ed.2d 639); the line-up was a product of the unconstitutional arrest; the in-court identification is clearly free from the taint of the illegal arrest.

On October 9, 1978 Kathy Crocker, working at a convenience store in Lake Charles, was robbed by a young black male with a gun. On November 14, 1978 J. S. Fairfield, a probation officer, received an anonymous telephone call reporting that Donald Reed Brown had committed an armed robbery about five weeks before. Within a couple of days of that call, police Sergeant Hyatt also received a telephone tip, naming Brown as a robber. Fairfield and the police met in the station, discussed the tips, located a report of the October 9 robbery, and prepared a “photo line-up” which included a five or six year old picture of defendant.

On November 20 Ms. Crocker saw the photographs and made a tentative identification, but she would not say positively that the picture was that of the robber.

At 7:48 a. m. on November 22 the police arrested Brown at home in bed, without a warrant. They asked the elderly woman who met them at the door if Donald Reed Brown was there; when she answered yes, and turned to go to his room, the police followed her toward the bedroom. The testimony was that defendant was arrested for parole violation and booked for armed robbery.

On that evening or the next, in a liné-up at the jail, the victim positively identified the defendant.

The first assignment of error is directed at the trial court’s overruling the motion to suppress the photo line-up and the identification at the physical line-up.

No error is shown in connection with the photo line-up. Defendant’s picture was included because of two anonymous tips. The victim failed to make a positive identification of defendant. This failure, in fact, led to the arrest and physical line-up.

The police officers recognized the lack of probable cause for the arrest-they said they lacked a positive identification. They attempted to justify the arrest for the purpose of the line-up as a response to the parole officer’s order. The parole officer, however, had no more “reasonable cause” (R.S. 15:574.8 B) to believe the defendant had violated his parole than the police had “probable cause” to believe he had committed a crime. Admittedly “technical” violations (such as failure to notify about job changes, address and associating with felons) each had been the subject of prior interviews between the parole officer and defendant, and each had been explained to the parole officer to his apparent satisfaction.

Even if probable cause to arrest existed, the arrest was illegal. “We . hold that the Fourth Amendment to the United States Constitution . . prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” Payton v. New York, supra, page 576, 100 S.Ct. p. 1375. Such a warrantless arrest in a home is also prohibited by Article 1, § 5 of the Louisiana Constitution of 1974. See State v. Ranker, 343 So.2d 189 (La.1977).

Even though the arrest in this case was made in violation of both the state and federal constitutions, and for the purpose of obtaining a positive identification of the defendant (see Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969)), the erroneous ruling on the motion to suppress does not necessarily require the reversal of this conviction. Although the lineup was the product of the illegal arrest, the victim’s in-court identification had a source independent from the arrest and was clearly not affected by the line-up. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980).

Ms. Crocker was in the store alone with defendant from 1:00 a. m. until 1:30 a. m., except for one minute when another customer was in the store. She talked with him, and looked up the phone number of a taxi company. When defendant went outside to use the pay phone he returned, she thought, too quickly, and asked if he could wait for the cab. Ms. Crocker at that moment concluded that a robbery was imminent.

Defendant asked about cold medicine, asked more questions, including whether Ms. Crocker was afraid, working all alone late at night. The victim continued to busy herself with cleaning and restocking in the store, following the precautionary instructions she had received from her employer. When the inevitable gun appeared, she screamed. The money was placed in the sack, and she was herded to the back of the store, near a bathroom door. She refused to disrobe, and, after being threatened with a gun in her face, told defendant, “You’re just going to have to shoot me to get my clothes off.”

Defendant relented when the victim showed him a place where he could lock her up, and took his departure. When the police responded to her call, her description was complete and apparently accurate. Nothing in her testimony indicated that her identification had any source other than the robbery itself. There was no error in admitting the in-court identification.

Defendant’s final complaint is the severity of the fifty year sentence. The trial judge reviewed his juvenile record, his adult probation for receiving stolen goods, a fifteen year prison sentence for two counts of distribution of heroin and eleven counts of forgery, from which he was on parole at the time of the instant robbery. The sentence is not excessive, in view of defendant’s record and the serious nature of the offense.

The conviction and sentence are affirmed.

       Honorable Richard H. Gauthier, Judge, Thirty-fourth Judicial District, participated in this de-cisión as an Associate Justice Ad Hoc.

      . After consideration of the written report, the chief probation and parole officer shall, with all practicable speed, make a preliminary determination, and shall either order the parolee’s release from detention or proceed promptly in accordance with R.S. 15:574.7.” R.S. 15:574.8 B.

      . “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.” Article 1, § 5, La. Const, of 1974.

      .The prosecution, of course, does not depend on a valid arrest, and the motion to quash was properly overruled.


text:
    STATE of Louisiana v. Harry DeKAY, Jr. and Robert Pitard.
    No. 66367.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearing Denied Sept. 12, 1980.

      Willim J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Garon, Brener & McNeely, Milton E. Brener, New Orleans, James A. McPherson, New Orleans, for Robert Pitard, defendant-appellant.
    Carol B. Hart, New Orleans, for Harry DeKay, defendant-appellant.

       Marcus and Lemmon, JJ., would grant a rehearing.

   DIXON, Chief Justice.

Defendants, Harry DeKay, Jr. and Robert Pitard, were convicted of public bribery and conspiracy to commit public bribery. R.S. 14:118 and R.S. 14:26. Given two year sentences for each offense, suspended, defendants were placed on probation for five years. On appeal, they rely on four arguments. A review of the record discloses no merit in defendants’ arguments, and their convictions and sentences are therefore affirmed.

On April 16, 1978 defendant DeKay, who was head of Prytania Private School in New Orleans, was arrested in Waveland, Mississippi for engaging in crimes against nature against R.S. At that time, the Orleans Parish District Attorney’s Office began to investigate DeKay in connection with other alleged crimes against nature. The investigation revealed that DeKay had allegedly committed sex offenses with J.K. and J. and T.D. in Waveland, and also with R.S. in New Orleans.

DeKay employed Pitard as his attorney; Pitard, with the assistance of two women, contacted the families of the boys involved and offered to “settle the case.” On November 5, 1978 Mrs. D., the mother of two of the victims, accepted $5000 from Pitard in return for which she signed an affidavit which provided:

“I, T.D., acting individually and through my parent, C.D., court appointed Tutrix, hereby release Harry B. DeKay, Jr. and Prytania Private School from any responsibility or liability concerning any alleged actions of impropriety that were alleged to have happened during the year 1978. I also admit that any statements that I may have made regarding actions of impropriety by Harry B. DeKay, Jr. were false and misleading, and that Harry B. DeKay, Jr. is guilty of no wrongdoing to me whatsoever. This release is made for the sum of Five Thousand ($5000.00) Dollars”

On November 8, 1978 a bill of information was filed against DeKay charging him with two counts of crime against nature with R.S. Subsequently, defendants DeKay and Pitard were charged with public bribery and conspiracy to commit public bribery in that they offered to give, and did give, the sum of $5000 to C. and T.D., persons about to be called as witnesses, with the intent to influence their conduct as witnesses in criminal proceedings before the Orleans Parish Grand Jury and at the trial of DeKay.

Argument No. 1

In this argument defendants contend that the trial court erred in denying the motion for a directed verdict and for a new trial on the grounds that there was no evidence that T. or C.D. were about to be called as witnesses and no evidence of intent to commit public bribery.

R.S. 14:118 defines the crime of public bribery as follows:

“Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
(4) Witness, or person about to be called as a witness, upon a trial or other proceeding before any court, board, or officer authorized to hear evidence or to take testimony.”

Defendants argue that the Ds. may have been victims, but were not witnesses because at the time the settlement agreement was entered into they had not yet been subpoenaed to testify against DeKay in the crime against nature case. The Official Reporter’s Comment to R.S. 14:118 provides that the “person does not have to be actually summoned to be regarded as a witness, but need be only ‘about to be called as a witness.’ ”

The record reveals that on November 7, 1978 J.K. and Mrs. D. (in place of her son T., who was emotionally unstable), testified before the Orleans Parish Grand Jury in connection with the crimes against nature investigation of DeKay. According to the testimony of Assistant District Attorney David Jennings, at the time of Pitard’s arrest on November 5, he intended to call both T.D. and J.K. as “system and intent” witnesses in the prosecution against DeKay. T.D. and Mrs. D. fell within the class of persons who were “about to be called as witnesses.”

Defendants argue that Pitard did not have the requisite intent to change the testimony of the Ds. Pitard, he said, believed that he could settle the criminal charges against DeKay because he had been told by his brother-in-law an assistant district attorney in Orleans Parish, that he could enter into settlement agreements with victims, but not with witnesses. Pitard, a practicing attorney for twelve years, testified at trial that he did not realize that he was engaged in illegal conduct until the bribery statute was read to him after his arrest. At that time he realized that in criminal cases victims were often witnesses.

R.S. 14:17 provides in part: “Ignorance of the provision of this Code or of any criminal statute is not a defense to any criminal prosecution.” Although Pitard may not have thought that his actions were criminal, both he and DeKay clearly intended to influence the conduct of potential witnesses. As for DeKay, on November 3, he contacted Mrs. Roth, one of the go-be-tweens, and pleaded for her to help him because he was about to be indicted.

There was sufficient evidence of intent to support defendants’ convictions.

There is no merit to this argument.

Argument No. 2

Defendants contend that the trial court erred in failing to order the state to furnish the defense with dates on which witnesses were subpoenaed to appear before the grand jury and in denying the defense motion to quash.

Counsel for Pitard filed a motion for a bill of particulars in which he requested that the state furnish the date on which C. and T.D. were summoned to testify before the grand jury. The state responded that the defense was not entitled to this information, and the district court agreed. Similarly, a motion to quash the indictment was filed on the ground that the Ds. were not persons about to be called as witnesses and the motion was denied.

Defendants claim that they were prejudiced by these rulings because if the subpoenas were not issued until after the bribes were made, the Ds. were not yet “witnesses” under the statute. The Reporter’s Comment to R.S. 14:118 does not support the narrow definition adopted by the defense. According to that Comment, a person need not actually be summoned to be regarded as a witness. A “witness” not only testifies, but is one who has personal knowledge of something.

The state had, in response to a defense discovery request, informed counsel of the date on which the grand jury in question was empaneled. Defendants were sufficiently informed of the nature and the cause of the charges against them and were provided with sufficient information to properly prepare their defense. State v. Thornton, 351 So.2d (La.1977); C.Cr.P. 484.

This argument lacks merit.

Argument No. 3

Defendants complain that the trial court erred in denying defense motion for a new trial and in not allowing into evidence results of polygraph tests.

At trial the results of DeKay’s polygraph tests were sought to be introduced by Pi-tard as evidence of Pitard’s belief that he was not engaged in illegal activity at the time he agreed to act as DeKay’s attorney and enter into settlement agreements with the victims, for the reason that DeKay’s polygraph tests tended to confirm DeKay’s innocence of the sex crimes. The state’s objection that the defense was employing an indirect method of getting into the record inadmissible evidence was sustained. At the hearing on the motion for a new trial, the defense reurged the argument that the results of the polygraph tests were admissible to prove defendant Pitard’s state of mind.

The evidence (of the tests) was merely cumulative. At any rate, Pitard’s belief that DeKay was innocent of the crime against nature allegations is irrelevant as to whether Pitard intended to influence the conduct of witnesses by the payment of money. Therefore, the actions of the trial judge in excluding the results of the polygraph tests did not prejudice the defendant.

This argument is without merit.

Argument No. 4

Defendants argue that the trial court erred in denying defendants’ motion to set aside the verdict and dismiss the prosecution.

After trial the defense filed a motion to set aside the verdict and dismiss the prosecution on the grounds that the district attorney’s office should be estopped from prosecuting defendants since Pitard’s brother-in-law, an assistant district attorney, advised him that one could settle with victims, but not with witnesses.

At the hearing on these motions, William Wynne, Pitard’s brother-in-law, testified that Pitard had presented him with a hypothetical question, asking how to get charges dropped. Wynne told him that in some cases it was proper to get the victim to sign an affidavit and arrange for restitution from the defendant; but he never advised Pitard that it was proper to pay a victim not to testify.

The equitable principle of estoppel has been recognized in criminal law only to the extent that it is the theory behind the defense of entrapment. See Perkins on Criminal Law, 2d Ed., Chapter 10, § 9, pp. 1035-1036. There is no evidence of entrapment in this case, and no reason to dismiss the prosecution or to set aside the verdict.

This argument has no merit.

Por the reasons assigned, defendants’ convictions and sentences are affirmed.


author: CALOGERO, Justice. PER CURIAM.

text:
    Raymond CORDOVA v. HARTFORD ACCIDENT & INDEMNITY COMPANY and Dr. A & Dr. B.
    No. 66585.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearing Denied Sept. 12, 1980.
    Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for plaintiff-applicant.
    Landry, Watson & Bonin, Alfred Smith Landry, New Iberia, Mouton & Jeansonne,

      Welton P. Mouton, Jr., Lafayette, for defendant-respondents.
   CALOGERO, Justice.

Plaintiff’s medical malpractice claim against Dr. John Tolson, III, Dr. A1 Beac-ham and their insurers was dismissed by the trial court on a exception of prescription. The Court of Appeal affirmed the trial court judgment. Plaintiff complains of the ruling. We granted his application for writs.

The facts as disclosed by the pleadings and by evidence taken at the hearing on the exceptions of prescription are as follows:

On April 9, 1975, Raymond Cordova consulted Dr. John Tolson, III, about performing a voluntary bilateral vasectomy and surgically correcting a right hydrocele. Dr. Tolson discovered that Cordova had a left inguinal hernia and after a general surgeon was consulted, Cordova agreed to have the hernia repair performed at the same time.

Plaintiff was admitted to Lafayette General Hospital for the three surgical procedures on April 27, 1975. Dr. Tolson performed the right hydrocelectomy and the vasectomy. Dr. Edgar Breaux performed the left inguinal hernioplasty. Plaintiff makes no allegation of malpractice concerning the hernioplasty performed by Dr. Breaux. On May 1, 1975 plaintiff was discharged from the hospital.

After leaving the hospital plaintiff telephoned Dr. Tolson’s office several times complaining of pain. On May 7, 1975, Dr. Tolson examined Cordova at his office as a result of Cordova’s complaint of pain and swelling of the right testicle. He found no indication of tenderness, fluid or pus in the scrotum. He considered the swelling an expected result of the operation. This May 7th visit was the last time Dr. Tolson treated Cordova.

On May 13, 1975, plaintiff called Dr. Tol-son’s office and spoke with Dr. Beacham, Dr. Tolson’s partner. Plaintiff told Dr. Beacham that he had fever, severe pain and swelling in the right testicle. Dr. Beacham saw plaintiff immediately, made a diagnosis of a right testical abscess with pus in the scrotal cavity, and then admitted him to the hospital on the same day.

Plaintiff was treated by Dr. Beacham with warm compresses and antibiotics. When there was no response to this treatment, Dr. Beacham recommended surgery and informed plaintiff that his right testicle might have to be removed. On May 15, 1975, Dr. Beacham performed surgery during the course of which he removed the right testicle. Plaintiff was discharged from the hospital on May 21, 1975.

Following the surgery plaintiff saw Dr. Beacham at his office seven times between May 24, 1975 and June 18, 1975. Plaintiff resumed sexual relations with his wife at the beginning of June, 1975. For a period of time thereafter plaintiff had a normal sex life, but then he experienced a gradual decline in his sex drive. He began suffering from depression and experienced suicidal tendencies.

On April 7, 1976, plaintiff returned to Dr. Beacham complaining of possible high blood pressure, dizziness, and decreased sex drive. At this time plaintiff’s remaining testicle had shrunk to the size of an olive, approximately one-half its normal size. Dr. Beac-ham found that plaintiff had minimal pros-tratitis for which he prescribed sulfa. No medication was given plaintiff for his complaint of loss of libido, i. e., loss of sexual desire.

Dr. Beacham saw plaintiff again on April 21, 1976, at which time laboratory studies were made. On June 22, 1976, plaintiff returned to Dr. Beacham, complaining of frank impotence. By this time the left testicle had almost completely atrophied. Dr. Beacham administered a synthetic male hormone shot and prescribed synthetic male hormone pills. Plaintiff claims that it was at this time that he learned that for all practical purposes he had lost both testicles. On August 11, 1976, Dr. Beacham recommended that plaintiff see a reproductive biologist in Houston.

On August 23, 1976, Cordova was examined by Dr. Emil Steinberger, a Houston reproductive biologist. Dr. Steinberger found that plaintiff’s remaining testicle measured 1.2 by 2 centimeters as opposed to a normal range of 2.75 by 4.75 centimeters. He concluded that the remaining testicle was heavily scarred and that the testicles must have been suffering from a primary disease making them unable to produce male hormones. Steinberger started treating plaintiff with male hormone injections with apparent success, but plaintiff’s left testicle remains atrophied and unable to produce male hormones.

Suit was filed in Acadia Parish on March 18, 1977, and service was made on March 21, 1977. Defendant’s exceptions of improper venue were sustained and the suit was transferred to Lafayette Parish. Under R.S. 9:5801 prescription is interrupted by filing of a civil action if that action is filed in a court of competent jurisdiction and in the proper venue. When the suit is filed in a court of improper venue the running of prescription is not interrupted until defendants are served with process. Mayeux v. Martin, 247 So.2d 198 (La.App. 3rd Cir. 1971). Thus prescription in this case was first interrupted on March 21, 1977.

In summary the pertinent dates for our consideration are as follows:

April 9, 1975 — Consultation with Dr. Tol-son for hydrocele, hernia repair, and vasectomy.

April 27, 1975 — Hospitalized for surgery by Dr. Tolson.

May 1, 1975 — Plaintiff discharged from hospital.

May 7,1975 — Cordova complains of swelling and pain in the scrotum to Dr. Tolson.

May 13, 1975 — Patient complains of severe pain and swelling, admitted to the hospital by Dr. Beacham.

May 15, 1975 — Plaintiff has surgery in which Dr. Beacham removes the right testicle.

May 21, 1975 — Cordova discharged from hospital.

June 18,1975 — Last office visit by Cordo-va in 1975.

April 7, 1976 — Plaintiff complains of possible high blood pressure, dizziness, and loss of libido.

April 21, 1976 — Laboratory studies done.

June 22, 1976 — Plaintiff complains of frank impotence, contends that he first learned that he had virtually lost both testicles.

August 11, 1976 — Dr. Beacham recommends that plaintiff see a reproductive biologist in Houston.

August 23, 1976 — Plaintiff sees a Hous-, ton reproductive biologist who is apparently successful in treating plaintiff for his loss of libido and impotence complaints.

March 21, 1977 — Defendants are served with process.

The trial court assigned no reasons in sustaining defendants’ exceptions of prescription. The Court of Appeal affirmed the trial court judgment that plaintiff’s claim had prescribed under R.S. 9:5628, the medical malpractice statute.

In deciding the prescription issue the Appeal Court noted that plaintiff was a sophisticated person who had had numerous operations as a child and several as an adult. But they based their decision sustaining the prescription exception primarily upon plaintiff’s testimony that within a year after the surgery his left testicle has shrunk to fifty percent of its normal size. The Appeal Court concluded that by this time (March 1976, more than one year prior to service of the lawsuit on March 21,1977) plaintiff knew or should have known sufficient facts to excite his attention and put him on inquiry that the operations by Doctors Tolson and Beacham may have been negligently performed. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (La.1970).

That conclusion does not give sufficient weight to the crux of our opinion in Young v. Clement, 367 So.2d 828, 830, where we stated:

“Prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring a malpractice action as long as such ignorance is not willful and does not result from his neglect.”
See Henson v. St. Paul Fire & Marine Insurance Co., 363 So.2d 711 (La.1978); Dean v. Hercules Incorporated, 328 So.2d 69 (La.1976); Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (La.1972); Penn v. Inferno Manufacturing, 199 So.2d 210, writ den. 251 La. 27, 202 So.2d 649 (1967); Walter v. Caffall, 192 La. 447,188 So. 137 (La.1939); Comment, The Scope of the Maxim Contra Non Valentem in Louisiana, 12 Tul.L.Rev. 244 (1938).

Plaintiff’s failure to connect the gradual shrinkage of his left testicle and decline of interest in sex with an operation performed ten months previously was not the result of neglect or willful ignorance. Cordova’s previous operations were unrelated to sexual problems and gave him no special insight into the possible causes of his malady. The law does not impose upon a layman the obligation to self-diagnose a psychopathological condition which reproductive biologists themselves do not fully understand. Plaintiff had confidence in his physicians’ skill and judgment.

It was not unreasonable for plaintiff not to be aware that defendants may have negligently performed the operation, considering that he resumed normal sexual relations with his wife three weeks after the right testicle was removed and continued to have satisfactory sexual relations for some time thereafter. The mere apprehension by plaintiff that “something was wrong” is not sufficient to start prescription unless plaintiff knew or should have known by exercising reasonable diligence that there was a reasonable possibility that his problem condition, the loss of libido and/or impotence, may have been caused by acts of malpractice. We are not prepared to charge plaintiff with such knowledge prior to June, 1976, when he became impotent and learned that he had virtually lost both testicles. Even if we were to impose a stricter standard of inquiry upon Cordova, i. e., his attention was or should have been excited and he was put on his guard when he noticed a sharp decline in his interest in sex, that knowledge was acquired shortly before April 7, 1976, within one year of his filing suit.

Decree

For the foregoing reasons the judgments of the trial court and Court of Appeal granting defendants’ exceptions of prescription are reversed and the case is remanded to the trial court for further proceedings.

REVERSED; REMANDED TO THE DISTRICT COURT.

ON APPLICATION FOR REHEARING

PER CURIAM.

Dr. John Tolson, III, while stating that he is not a party to these proceedings, makes an application for rehearing complaining of the introductory language of our opinion which he contends infers that he was a party defendant to these proceedings. It is applicant’s contention that he has never been served with any pleading herein, nor has he ever made any appearance relative to the matter, and that issue as to him has never been joined.

Without examining the record to determine the accuracy of these allegations, one may observe that the language complained of makes no adjudication as to the identity of the parties to this proceeding.

Accordingly, the application for rehearing filed by Dr. John Tolson, III, is denied.

DENIED.

      . Cordova v. Hartford Accident & Indemnity Company & Doctor A and Doctor B, 378 So.2d 1088 (La.App. 3rd Cir. 1980).

      . A hydrocele is a sac containing fluid located within the scrotum and surrounding a testicle.

      .In September of 1975 plaintiff was treated for prostratitis by another physician.

      . The operations performed in April and May of 1975 as to which plaintiff is charging negligence (although he also contends that defendants negligently treated him prior to the operations) occurred prior to the adoption of R.S. 9:5628. Pertinent to this case R.S. 9:5628 is no different than the prior rule on malpractice prescription — that the patient has one year from discovery of the act of malpractice in which to bring suit.

      . The Attorney’s Textbook of Medicine states “Libido or sexual desire is wholly dependent upon unconscious mental processes. Any significant stress in the life of an individual may temporarily cause impotence.” (emphasis provided) Gordy-Gray, 4B Attorney’s Textbook of Medicine, § 301.32, p. 301-46. The fact that plaintiff had had a testicle removed would not necessarily alert him to the possibility that his sexual problems may have been caused by negligent performance of the operations: “Impotence can be, but rarely is due to physical causes. Even when an adult male is castrated (has his testicles removed) he is usually not impotent.” Benjamin F. Miller M.D., The Complete Medical Guide, p. 297, 1956.

      . We express no opinion as to the merits of plaintiffs allegation of medical malpractice, the only issue before us being whether plaintiffs claim has prescribed.

      . We note that in the application for rehearing filed by Dr. Tolson, he states:
      “. . . Reasons for judgment by the trial court judge did dismiss Dr. John Tolson, III from the suit and judgment was prepared in accordance with these reasons and affirmed by the Court of Appeal for the Third Circuit.”


author: MARCUS, Justice. WATSON, Justice,

text:
    STATE of Louisiana v. Cody DENTON et al., on behalf of David Johnson and Jack Hutchinson. STATE of Louisiana v. Cody DENTON et al.
    Nos. 65468, 66438.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearings Denied Sept. 12, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., Sidney A. Ordoyne, Jr., Asst. Dist. Atty., for plaintiff-appellee-respon-dent.
    James A. Wood, Gerald A. McGill, Nathan E. Eden, Leslie J. Clement, Jr., Thiba-daux, Macrino Trelles, Baton Rouge, for defendants-appellants-relators.
   MARCUS, Justice.

This is an appeal by certain defendants from their convictions and sentences resulting from the entry of guilty pleas and a trial by jury. The primary issue in all the appeals is whether the trial judge erred in denying their joint motion to suppress a large quantity of marijuana (38,500 pounds) seized from the eighteen-wheel and ten-wheel tractor trailers and a shrimp boat, MR. PETER, during the course of an unloading operation at the Bayou Fish Company located on the bank of Bayou Lafourche in Lafourche Parish, Louisiana. The argument is that the evidence was obtained as a result of unconstitutional searches and seizures.

We have reviewed the record and find that the trial judge accurately set forth in his per curiam comments the facts as they relate to the searches and seizures. Accordingly, we adopt the following statements of facts as our own:

On August 13,1978, agents of the United States Customs Service and the Louisiana State Police boarded the abandoned vessel, LADY DOLLY, in the Gulf of Mexico west of Marsh Island below Morgan City, Louisiana. Approximately ten tons of marijuana was [sic] found in the hold of the vessel and seized. Subsequently, eight persons were found on an old oil rig approximately one quarter of a mile from where the LADY DOLLY was seized. No evidence was introduced to connect these individuals with the LADY DOLLY.
Two of these eight individuals were David Johnson and Cody Denton. Subsequent investigation revealed that they were connected with the Bayou Fish Company operating out of Leeville in the Parish of Lafourche, Louisiana.
On August 20, 1978, Sergeant Mark Zeringue, a narcotics officer with the Louisiana State Police, met with United States Customs agents and Federal Drug Enforcement agents concerning information that they possessed about a smuggling transaction that would be taking place in several days at the Bayou Fish Company. The evidence does not reveal the source of this information nor the facts upon which this information is based. As a result of this meeting, agents of the United States Customs Service, the Drug Enforcement Agency and the Louisiana State Police set up a twenty-four hour off-premises surveillance of the Bayou Fish Company.
The Bayou Fish Company is located on the right or west descending bank of Bayou Lafourche between La. Hwy. 1 and the waters edge (locally known as the batture) approximately two and a half to three miles north of the Leeville bridge in the Leeville Community in the southern part of the Parish of Lafourche, Louisiana. On these premises are located a wharf, fish house, loading dock, small office, parking area, freezer, and house. Off-premises surveillance of this property continued for the next seven days with the officers noting the routines and patterns of business operations and vehicular traffic.
On the evening of Saturday, August 26, 1978, all but one of the lights of the fish house were turned off at approximately 10:00 o’clock p. m. Between approximately 9:30 p. m. on August 26, 1978 and 12:30 a. m. on August 27, 1978, small groups of individuals arrived on the premises at different times until there were approximately eleven to fourteen persons present. Cody L. Denton, and David Johnson were identified as two of the parties present. The police officers divided into different teams to observe the activities of the fish house from various positions off of the premises.
Between 10:15 p. m. on August 26,1978 and 1:30 a. m. on August 27, 1978, a white Ford Thunderbird was observed leaving the Bayou Fish Company premises and returning on several occasions. The vehicle would leave the premises and travel south on La. Hwy. 1 at a high rate of speed to a point south of the Leeville bridge and return.
At approximately 1:00 o’clock a. m. on Sunday, August 27, 1978, Sergeant Paul Trahan of the Louisiana State Police observed the shrimp boat, MISS EVERGLADES, towing the shrimp boat, MR. PETER, in a northerly direction in Bayou Lafourche near the Fagan Enterprises dock south of the Leeville bridge. At 1:38 a. m. on August 27, 1978, the MISS EVERGLADES and MR. PETER docked at the wharf on the Bayou Fish Company premises. An eighteen wheel and a ten wheel tractor and trailer were observed parked on the premises with their back-ends against the loading dock of the fish shed.
Subsequently, Sergeant Mark Zeringue and Sergeant Paul Trahan of the Louisiana State Police, were driven to a service station located on the bayou side, south of the Bayou Fish Company across La. Hwy. 1 from Boudreaux’s Motel. They then proceeded on foot in a northerly direction and established an observation post under the back porch of John Boudreaux’s residence which is the first property south of the Bayou Fish Company. The back porch of John Boudreaux’s home is on pilings and is located approximately one hundred feet from the south side of the small office, fish house and wharf on the Bayou Fish Company property.
At approximately 2:55 or 3:00 o’clock a. m. on August 27, 1978, the ten wheel truck and trailer which had been parked at the fish house was observed to leave.
Using a night scope, Sergeant Trahan commenced observations of the activities taking place on the Bayou Fish Company property. Both Sergeants Zeringue and Trahan heard voices but were unable to distinguish words and heard bumping sounds made by cargo being moved. The window and door on the south side of the fish shed were open. There was a six to eight foot gap between the side wall of the fish house and the parking lot end of the loading dock of the fish shed. See State Exhibits 3, 4, and 5. The court made an optic inspection of the south side of the Bayou Fish Company property from the places where Sergeant Trahan made his observations on the night in question. This inspection confirmed that Sergeant Trahan had a clear field of vision from about one hundred feet and that the physical layout of the premises was as he described.
Through the night scope, Sergeant Tra-han observed people carrying bales of marijuana from the direction of the MR. PETER through the fish shed across the loading dock and into the eighteen wheel truck. On two previous investigations, Sergeant Trahan had observed similar offloading operations involving trucks and vessels and on a previous occasion had witnessed a loading operation at a farm house. Some of the individuals had head lumps (bull-eyes) and some had flash lights. Sergeant Trahan observed the lights going back and forth from the vessel to the truck.
At approximately 3:10 a. m., after observing the off-loading operations for about six to eight minutes, Sergeant Tra-han advised Lieutenant Donald Breaux of the Louisiana State Police by radio that he observed bales of marijuana being off loaded from the vessel to the truck. Based on this information, at 3:15 a. m. Lieutenant Breaux gave the order for the various law enforcement officers in the area to proceed to enter the property of the Bayou Fish Company, arrest the persons off loading the marijuana and seize the illegal contraband. Immediately thereafter, he ordered State Police Officers Richard Hazelwood and Larry Le-Jeune and Customs officers Harry Benjamin, Jim Eubanks and R. C. Johnson to set up a road block just south of Golden Meadow near the Texaco Company dock to stop the ten wheel tractor and trailer which previously left the Bayou Fish Company premises. The officers then entered the property of the Bayou Fish Company and observed that the doors of the eighteen wheel tractor and trailer were opened and against the sides of the truck and through these opened doors bales of marijuana were observed. The front and rear doors of the fish house were open and a trail of marijuana residue was observed on the floor of the fish house leading from the MR. PETER to the loading dock and the trailer. There were several bales of marijuana on the deck of the MR. PETER and marijuana could be observed in the hold of this vessel through its opened hatch. When the police officers went onto the property of the Bayou Fish Company, many of the persons present attempted to flee the scene by running from the loading area. Others (at least five) jumped into Bayou Lafourche and commenced swimming. The defendant, Orestes Estrada, was arrested in the small office building immediately adjacent to the fish shed.
State Trooper Ronald Theriot was ordered to commence north of La. Hwy. 1 and identify the ten wheel tractor and trailer which previously left the premises to the police officers at the road block. The radio communications from the law enforcement agents at the Bayou Fish Company confirmed to the agents at the road block that marijuana had in fact been found on the premises prior to the time that the ten wheel tractor and trailer was stopped. When this vehicle was stopped at the road block it was being driven by Albert Kibode.aux [sic]. His wife, Bernice D. Kibodeaux [sic], was a passenger in the vehicle, Mr. and Mrs. Kibodeaux [sic] were ordered out of the vehicle. Officer Hazelwood requested and received the keys to the trailer from Mr. Kibodeaux [sic]. He gave these keys to Officer Benjamin, who then opened the lock on the rear doors of the trailer, opened same and found many bales of marijuana partially hidden behind two rows of boxes of seafood.

It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable under the fourth amendment, subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 93, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Gordon, 332 So.2d 262 (La.1976). One of these exceptions is the so-called “automobile exception.” This exception is based upon the existence of probable cause to search the vehicle and exigent circumstances which render it impractical to secure a warrant. Coolidge v. New Hampshire, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Spencer, supra; State v. Gordon, supra. This exception applies equally to a vessel. United States v. Weinrich, 586 F.2d 481 (5th Cir. 1978) cert. denied, Blair v. U. S., 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 243 and 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979).

In the instant case, the officers clearly had probable cause to believe that the truck located at the Bayou Fish Company and the vessel docked at the wharf adjacent thereto and the truck which had left the premises contained contraband which they were entitled to seize. The officers had received information that a smuggling transaction would be taking place in several days at the Bayou Fish Company. An immediate surveillance of the premises was set up which continued until the night in question (seven days later). On that night, all lights at the fish company were extinguished contrary to the previous evenings. Thereafter, the arrival of eleven to fourteen persons and the activity of an automobile along the highway between the draw bridge on the bayou and the fish company further aroused the officers’ suspicion. Moreover, two individuals were identified who had been previously involved in a possible attempted smuggling operation. Thereafter, a shrimp boat, being towed by another shrimp boat, was observed proceeding in a northerly direction in Bayou Lafourche. The vessels docked at the wharf of the fish company. An eighteen-wheel tractor-trailer and a ten-wheel tractor-trailer were observed parked on the premises. Subsequently, Sgts. Zeringue and Trahan moved to a location under a porch of a house about one hundred feet from the fish company. Trahan testified that he observed the unloading of what appeared to be marijuana. He stated that, while looking through a night scope and with the unaided eye, he could see silhouettes of people, some using head lamps or flashlights, carrying burlap bales and traveling in a pattern from the direction of the wharf through the fish house to a loading dock and into trucks parked at the loading dock. He further stated that he could see into the fish house through an open window and door. He also stated that he could hear the sound of bales hitting the wharf and recognized the burlap bales as similar to those he had seen utilized to effect the “offloading” of marijuana from vessels during two previous investigations. Trahan testified that, while binoculars magnify what you can see, a night scope only “clarified what I was looking at with the naked eye. Trahan reported his observations to Lt. Donald Breaux who commanded the operation. Breaux immediately ordered the police officers to close in on the fish company and to stop the ten-wheeler already traveling on La. Highway 1 (a roadblock had previously been set up). The officers seized the marijuana from the eighteen-wheeler and the shrimp boat at the fish company site and the officers at the roadblock stopped the ten-wheeler on the highway and seized the marijuana contained therein. Clearly, there was probable cause to make the searches and seizures. Moreover, exigent circumstances existed since one of the trucks had already departed loaded with marijuana and defendants were in the process of unloading the marijuana from the vessel into the eighteen-wheeler. Hence, the searches and seizures were proper. State v. Dupuis, 378 So.2d 934 (La.1979); State v. Spencer, supra.

Defendants also contend that the search was unreasonable because the observations of Trahan were made while he was on another’s property and with the aid of a night scope. In determining whether one has a reasonable expectation of privacy, the test is not only whether the person had an actual or subjective expectation of privacy but also whether his expectation of privacy is of the type which society at large is prepared to recognize as being reasonable. Katz v. United States, 389 U.S. 347, 83 S.Ct. 507,19 L.Ed.2d 576 (1967); State v. Dupuis, supra; State v. Wilbourn, 364 So.2d 995 (La.1978), cert. denied, 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979). Trahan’s observations were made from the property of another within one hundred feet from the fish company. Although the officer was on the property of another, defendant had no reasonable expectation of privacy on the wharf and the area immediately adjacent thereto. Although it was a private dock, it was located on a public navigable waterway (Bayou Lafourche) and their actions could have been viewed by anyone passing on the waterway. Hence, we conclude that Trahan’s observations of defendants from the adjoining property did not violate defendants’ fourth amendment rights since defendants had no reasonable expectation of privacy under the circumstances.

We further reject defendants’ contention that Trahan’s use of the night scope was violative of the fourth amendment. The United States Court of Appeal, Fifth Circuit, in United States v. Grimes, 426 F.2d 706 (1970), stated:

Special Investigator Griffith testified that through binoculars, he observed the appellant, a known liquor violator, placing two large cardboard boxes (each of which contained six gallons of untaxed whiskey), in a 1961 Buick. The observations were made from a field belonging to another, about 50 yards from the appellant’s house. This did not constitute an illegal search. [Citations omitted.]

See also Fullbright v. United States, 392 F.2d 432 (10th Cir. 1968), cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1968); United States v. Minton, 488 F.2d 37 (4th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287 (1974). In the instant case, we see no significant difference between binoculars that magnify and a “night scope” that clarifies the observations made by the naked eye. Hence, we conclude that Trahan’s observations of defendants from an open area on property belonging to another, about one hundred feet from a private wharf located on a public navigable waterway, did not constitute an illegal search.

In sum, we conclude that the officers acted properly in searching and seizing the contraband contained in the two tractor-trailers and the shrimp boat. The trial judge did not err in denying the motion to suppress the evidence. Hence, Assignment of Error No. 1 is without merit.

Having reviewed the remaining assignments of error asserted by Delton Demere, Weylen Demere, Hamilton and Estrada, we find that they present no reversible error and do not require published explanation because they do not present any question of unsettled law. Therefore, these assignments of error are discussed in an unpublished but publicly-recorded appendix to this opinion.

DECREE

Defendants’ convictions and sentences are affirmed.

WATSON, J., concurs and assigns reasons.

DENNIS, J., concurs for the reasons assigned by WATSON, J.

WATSON, Justice,

concurring.

I concur in the affirmation of the convictions and sentences.

However, I do not agree with the comments in the majority opinion which approve of the reliance on observations through a nightscope to establish probable cause. As I understand this device, it not only magnifies what the viewer could see with the naked eye, but also makes possible the observation of activities which the viewer could not see because of darkness. There is little difference, therefore, between a nightscope and electronic bugging devices or telephone wire-tapping instruments. By electronic means, the investigator is able to gather evidence which could not be obtained without the use of ingenious scientific devices.

The constitution does not authorize the invasion by electronics of the reasonable expectations of privacy enjoyed by our citizens. In the present case, the evidence is that the investigating officers could see and did see sufficient with the naked eye to give them probable cause for arresting defendants.

Therefore, I concur in the result.

      . Cody L. Denton, Jack N. Hutchinson, James E. Calíais, Eric R. Guidry, Bernice D. Kibodaux, Albert Kibodaux, David R. Johnson, Benjamin F. Kelley, Sr., Charles K. Singletary, Dennis H. Cannon, Walter C. Marshall, Larry J. Schouest, Orestes F. Estrada, Delton Demere, Weylen Demere and John D. Hamilton were charged by the grand jury in the same indictment with possession with intent to distribute marijuana in violation of La.R.S. 40:966(A). Defendants entered pleas of not guilty. All defendants except Callis and Schouest filed a motion to suppress the marijuana seized. After a hearing, the motion was denied.
      Johnson and Hutchinson withdrew their former pleas of not guilty and entered guilty pleas to amended charges of possession of marijuana. After selection of the jury on the day of trial, Denton, Marshall, Cannon, Singletary, Kelley and Guidry withdrew their former pleas of not guilty and entered pleas of guilty to amended charges of attempted possession with intent to distribute marijuana.
      Albert Kibodaux withdrew his former plea of not guilty and entered a plea of guilty as charged (possession with intent to distribute marijuana).
      Each of the aforesaid defendants reserved his right to appeal the ruling of the trial judge denying the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976).
      On joint motion of the state and defendant, a mistrial was declared as to Bernice D. Kibo-daux and she was severed from the proceedings; subsequently, the charge against her was nolle pressed.
      After trial by jury, Delton Demere, Weylen Demere, Hamilton and Estrada were found guilty as charged (possession with intent to distribute marijuana). Calíais testified against them at trial. Calíais and Schouest were not prosecuted.
      Denton, Marshall, Cannon, Singletary and Kelley were each sentenced to serve five years at hard labor and to pay $400 of the court costs. Guidry was sentenced to four years and three hundred and sixty-four days at hard labor and to pay $400 of the court costs.
      Johnson and Hutchinson were each sentenced to serve six months in the parish jail and to pay $400 of the court costs.
      Albert Kibodaux was sentenced to serve seven and one-half years at hard labor and to pay a fine of $5,000 and $2,852.02 of the court costs and in default thereof to serve an additional year consecutively with the sentence previously imposed.
      Delton Demere, Weylen Demere, Hamilton and Estrada were each sentenced to serve ten years at hard labor and to pay a fine of $15,000 and $2,750 of the court costs and in default thereof to serve an additional year consecutively with the sentence previously imposed.

        Denton, Marshall, Cannon, Singletary, Kelley, Guidry and Albert Kibodaux appealed their convictions and sentences only on the issue of whether the trial judge erred in denying the motion to suppress, reserved at the time the guilty pleas were entered. Delton Demere, Weylen Demere, Hamilton and Estrada appealed, relying on seven assignments of error for reversal of their convictions and sentences (No. 66,438).
      We granted the application of Johnson and Hutchinson to review their convictions and sentences under our supervisory jurisdiction (No. 65,468). Since their convictions arise out of the same facts as those of the above appeals, we granted the joint motion of the state and defendants to consolidate the two cases.

      . Bayou Fish Company is located approximately fifteen miles from the Gulf of Mexico.

      . Surveillance revealed that the lights of the fish house were extinguished each evening at about 10:00 or 11:00 p. m., with the exception of one light inside the fish house which was left burning. On the night of August 26, 1978, however, all the lights were turned off and the fish company was in total darkness; that evening was the only night that the officers observed Bayou Fish Company to be totally dark.

      . Police surveillance had revealed that a ten-wheel and an eighteen-wheel tractor-trailer were parked on the premises of the fish company. Sgt. Trahan testified that, although he could observe that bales of marijuana were being loaded into the trucks, he could not observe into which of the two trucks the bales were being loaded.

      . When questioned whether he observed what was going on with his naked eye or the night scope, Sgt. Trahan replied:
      Well, at some stages I looked with the naked eye; other stages I was looking through the night scope. I didn’t utilize the night scope the entire six to eight minutes that I was underneath the porch. I could follow the small lights coming from behind there and going all the way through-that was real visible with the naked eye. When 1 utilized the night scope it was to itensify [sic] what I was looking at, and I could see individuals a lot clearer than with the naked eye.


author:
WATSON, Justice.
     BLANCHE, Justice MARCUS, Justice

text:
    Jerry HUNT, Individually and as the Administrator of the Estate of his minor son, David Hunt v. CITY STORES, INC. d/b/a Maison Blanche and the Travelers Insurance Company, Otis Elevator Company and Commercial Union Assurance Company.
    No. 66081.
    Supreme Court of Louisiana.
    June 23, 1980.
    Rehearing Denied Sept. 12, 1980.

      James H. Drury, Drury & Lozes, New Orleans, for defendants-respondents, Otis Elevator Co., et al.
    Prank J. Achary, Law Offices of James J. Morse, New Orleans, for defendant-applicant, City Stores, Inc., etc., et al.
    Paul Bonin, Levenson & Bonin, New Orleans, for respondent.

       Marcus and Blanche, JJ., would grant a rehearing.

   WATSON, Justice.

At issue is the propriety of a judgment granting plaintiff an award for personal injuries against the owner of an escalator but dismissing a third party demand by the owner against the manufacturer.

Plaintiff, Jerry Hunt, filed suit individually and as the administrator of the estate of his minor son, David, for damages sustained in an accident on an escalator in a New Orleans department store. Defendants are City Stores, Inc. d/b/a Maison Blanche; its insurer, Travelers Insurance Company; Otis Elevator Company, the manufacturer of the escalator; and its insurer, Commercial Union Assurance Company. Defendants City Stores and Travelers filed a third party demand against Otis for contribution and/or indemnification and against Mrs. Jerry Hunt, David’s mother, alleging that her negligence was the sole cause of the accident. The trial court rendered judgment in the amount of $5,184 in favor of plaintiff and against defendants, City Stores and Travelers, and dismissed all demands against Otis and Commercial Union. The Fourth Circuit Court of Appeal, 375 So.2d 1194, affirmed on the ground that Marquez v. City Stores Co., 371 So.2d 810 (La., 1979) controlled that result. Upon application of City Stores and Travelers, a writ of certiorari was granted to review the conclusion that the escalator’s defect warranted a judgment against City Stores under LSA-C.C. art. 2317, but not a judgment on the third party demand against the manufacturer under the rationale of Weber v. Fidelity and Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971).

On May 27, 1976, twelve year old David Hunt was shopping in the Maison Blanche store at Lake Forest Plaza shopping center in New Orleans. As he rode a descending escalator from the second to the first floor, his right tennis shoe was caught in the space between the moving tread and the escalator’s left side panel. Although David was accompanied by his mother and other family members, no one knew exactly why his shoe lodged in the escalator. There was no evidence that the child was misbehaving or that he deliberately wedged his foot in the machine. David testified that he was looking at glittering streamers which hung from the ceiling when the escalator “grabbed” his foot and pulled it into the side opening (Tr. 16). Both knees were injured. The escalator was stopped and David’s shoe was cut away to free his foot.

Marquez v. City Stores Co., 371 So.2d 810 (La., 1979), involved a three and one-half year old child who was injured on the same escalator. The key issue in Marquez was whether the escalator was defective. There was no proof of violation of national safety standards for escalators. Evidence of distinctive jolts and noises prior to the accident was rejected. The escalator caught the Marquez child’s shoe and this was . . an unusual occurrence in itself which would not have happened had this escalator not been defective.” 371 So.2d 813. Since the escalator was defective, City-Stores was liable under LSA-C.C. art. 2317, as interpreted in Loescher v. Parr, 324 So.2d 441 (La., 1975). Article 2317 and Loescher had previously been applied to hold a department store owner liable for injuries caused by a defective escalator in Wolverton v. City Stores Co. (Maison Blanche Division), 363 So.2d 1321 (La.App. 4 Cir. 1978).

LSA-C.C. art. 2317 imposes liability on the custodian of a defective person or thing which creates an unreasonable risk of harm to others. According to Loescher, the plaintiff must prove “the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice.” 324 So.2d 446-447. To escape liability, the defendant must show that the damage was due to fault of the victim, fault of a third party, or an act of God. Although “unreasonableness” is a traditional standard for the determination of negligence, it is also fundamental to a finding of strict liability under LSA-C.C. art. 2317. In both negligence and strict liability cases, the probability and magnitude of the risk are to be balanced against the utility of the thing. The distinction between the two theories of recovery lies in the fact that the inability of a defendant to know or prevent the risk is not a defense in a strict liability case but precludes a finding of negligence. See “Fault of the Victim: The Limits of Liability Under Civil Code Articles 2317, 2318 and 2321,” 38 La.L.Rev. 995 at 1013 (1978); “Does Louisiana Really Have Strict Liability under Civil Code Articles 2317, 2318, and 2321?,” 40 La.L.Rev. 207 (1979).

Here, the space between the moving threads and the escalator’s side panel was lVi6 to 3/i« of an inch, less than the maximum of % of an inch permitted by the National Safety Code for escalators. There was testimony that some space must be left between the side panel and the moving tread to prevent friction and scuffing and that the escalator does not move laterally under “normal conditions” (Tr. 128). There was no failure to comply with the standards of the escalator industry and no proof that the escalator could have been manufactured to prevent the entrapment of small feet in small spaces. The product was said to represent the latest and best in escalator design. Nevertheless, a great probability of this particular accident occurring was established. Marquez and Mire v. Otis Elevator Co., Inc., 357 So.2d 1326 (La.App. 4 Cir. 1978) both involved tennis shoes which lodged in the side of a moving escalator. According to Otis expert David Steel, the coefficiency of friction is a factor in trapping tennis shoes. The friction produces heat which softens the rubber which increases the coefficiency of friction. Walter Joseph Sarrat, administrator of the Maison Blanche Lake Forest store, admitted that children’s feet, the majority with tennis shoes, had been caught in the escalator of his store about four times before David Hunt’s accident. A small plaque on the base of the escalator warned against “Barefoot Children”, but did not caution against tennis shoes.

While the escalator was beneficial and convenient to Maison Blanche and its customers, the utility of its condition on May 27, 1976, was outweighed by the hazard to small children associated with its use. Although David Hunt only hurt his knees, the injuries to Marquez and Mire were severe enough to warrant partial toe amputations.

This escalator posed a threat to small children in tennis shoes. City Stores was aware of the danger and had a duty to warn of the risk of injury. It failed to do so. The store was at fault in not guarding the public against the risk of harm posed by the escalator.

Although Otis installed and serviced the escalator, its maintenance contract provided:

“It is agreed that we do not assume possession or control of any part of the equipment but such remains yours exclusively as the owner . . . ”. City Stores, Exhibit # 1, page 3.

Therefore, City Stores d/b/a Maison Blanche was custodian of the defective escalator. It has not carried the burden of showing any fault by victim Hunt or a third person which would relieve it of liability. LSA-C.C. art. 2317.

In Weber v. Fidelity & Casualty Insurance Co. of N.Y., supra, a rule of strict liability for manufacturers of defective products was enunciated. The court stated:

“A manufacturer of a product which 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. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect.
* * * * * *
“If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.” 259 La. 602-603, 250 So.2d 755-756.”

Thus, under Weber, the plaintiff in a products liability suit must only prove that the product was defective, i. e., unreasonably dangerous to normal use; that the product was in normal use at the time the injury occurred; that the product’s defect caused his injury; and that the injury might reasonably have been anticipated by the manufacturer. It is unnecessary to prove that the manufacturer was negligent because he knew or should have known of the dangerous condition of the product at the time of the manufacture or sale. The focus is on the product itself and whether it is unreasonably dangerous to normal use. See 43 Mo.L.Rev. 601, 604 (1978); “The Developing Definition of Defect in California Products Liability”, 8 Golden Gate Univ.L.Rev. 263, 286 (1978). A person injured by a product need not prove defective design or manufacture in order to recover from the manufacturer or retailer of the product. Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La., 1978). Again, a balancing test is mandated: if the likelihood and gravity of harm outweigh the benefits and utility of the manufactured product, the product is unreasonably dangerous. If the product is unreasonably dangerous to normal use, the manufacturer is ultimately responsible to one injured in the course of that use. See Phillips, “A Synopsis of the Developing Law of Products Liability,” 28 Drake L.Rev. 317, 322-325 (1978-1979).

Here, the risk of harm was known to Otis but not obvious to the public. Otis engineer David Steel admitted that the industry had experience with the problem of children’s tennis shoes getting caught. Roger Harris of Otis, an expert in escalators, testified that the stores advise Otis of incidents like this. He had “Probably” (Tr. 108) investigated similar cases where children in tennis shoes had gotten their feet caught. He said that the inconspicuous warning signs which caution against bare feet are the only ones used by Otis. John Michael Trahan, a former maintenance examiner for Otis, testified that the small warning signs at the base of the escalator were part of the equipment and came with the escalator. Despite knowledge of the danger presented to children in tennis shoes, Otis had not warned of that hazard. Penn v. Inferno Manufacturing Corporation, 199 So.2d 210 (La.App. 1 Cir. 1967) writ denied 251 La. 27, 202 So.2d 649; Chappuis v. Sears Roebuck & Co., supra. Accordingly, the courts below erred in dismissing the claims against the product manufacturer and its insurer.

There is an apparent conflict between the result here and that in Marquez as to manufacturer Otis. In Marquez also there was no appeal by plaintiff from dismissal of the claim against Otis and its insurer. However, in Marquez, the third party demand by City Stores against Otis was based solely on negligent performance of a maintenance contract. No negligence in performance of the contract was shown, and no other error by the trial court was assigned. Because City Stores failed to argue any other basis for liability, the demands against Otis by City Stores were dismissed.

Here, however, it was alleged that Otis failed to design and manufacture the escalator in a reasonably safe manner and failed to warn of the dangers attendant to its use. The escalator was shown to present an unreasonable risk of harm in normal use which could have been anticipated by the manufacturer. There was no warning of the defect. Otis is liable for the resulting injury. Therefore, the question presented is whether City Stores is limited to contribution or if it is entitled to indemnity.

LSA-C.C. art. 2103 provides in pertinent part that: “When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi contract, an offense, or a quasi offense, it should be divided between them. As between the solidary debtors, each is liable only for his virile portion of the obligation.” Here both City Stores and Otis failed to warn the public of a known hazard associated with use of this escalator. Because neither undertook to warn those using the escalator, and both were aware of the risk, both are equally at fault. While Otis might theoretically manufacture a safer product, Maison Blanche could purchase a better escalator, switch to stairs or use elevators. Otis is in a better position to improve the design of the machine than City Stores, but City Stores should not be allowed to keep a defective escalator and pass all liability to the manufacturer. In the absence of some greater fault being shown on the part of either, the obligation is solidary. The loss should be divided. Otherwise, the store owner has no incentive to warn the public, replace the escalator or otherwise prevent future accidents. Otis and its insurer are liable to City Stores and its insurer for contribution of one-half of plaintiff’s damages. Compare Leaber v. Jolley Elevator Corp., 354 So.2d 746 (La.App. 4 Cir. 1978).

Therefore, the courts below erred in dismissing the third party demand of City Stores and its insurer against Otis and its insurer. The judgment of the Court of Appeal is affirmed with respect to the plaintiff’s demand against City Stores and Travelers and is amended to award City Stores and Travelers judgment on its third party demand for contribution of one-half the amount awarded to plaintiff against Otis and Commercial Union.

AMENDED AND AS AMENDED AFFIRMED.

BLANCHE, J., dissents and hands down reasons.

MARCUS, J., dissents and assigns reasons.

EDWARD A. de la HOUSSAYE, J., dissents for reasons handed down by BLANCHE, J.

BLANCHE, Justice

(dissenting).

I respectfully dissent. Whether recovery maybe had either under C.C. art. 2317 or manufacturer’s product liability theory, the finding of a defect is common to both. This burden of proof is not met by simply showing an unusual occurrence, but requires that the plaintiff show by a preponderance of the evidence not only that a defect exists but that it caused the injury. The only basis for our finding a defective escalator in Marquez v. City Stores Co., 371 So.2d 810 (La.1979), is found in the following quote from that opinion:

“The fact that this escalator caught this child’s shoe is an unusual occurrence in itself which would not have happened had this escalator not been defective . If this escalator were safe for small children with small feet then James’ shoe could not have been caught in this opening.” Marquez, supra at 813-14. (emphasis added)

It does not logically follow that because a small child’s tennis shoe is found caught in an escalator that the occurrence of that event could only have happened because of a defect in the escalator.

Under either theory of recovery, a defect must be shown, and I am unable to equate “unusual occurrence” with proof of a defect.

MARCUS, Justice

(dissenting).

La.Civil Code art. 2317 as interpreted by Loescher v. Parr, 324 So.2d 411 (La.1975), requires proof of a defect or vice. I dissented in Marquez v. City Stores Company, 371 So.2d 810 (La.1979), because I did not consider that the mere occurrence of an accident on an escalator constituted proof the escalator was defective. The same is true here. Therefore, I would dismiss City Stores, Inc.’s third party demand against Otis Elevator Company. And, because City Stores, Inc. did not seek review of the judgment awarding plaintiff damages against it, that judgment is final and cannot be changed. Accordingly, I respectfully dissent.

       Honorable Edward A. de la Houssaye, III participated in this opinion as Associate Justice Ad Hoc.

      . The third party demand against Mrs. Hunt was not dismissed, or otherwise decided by the trial court. The Court of Appeal regarded the demand as abandoned and noted, correctly, that there is no evidence of negligence on her part.

      . Plaintiff Hunt did not appeal from the trial court judgment, which is therefore final as to plaintiffs claim against the manufacturer.

      . LSA-C.C. art. 2317 provides:
      “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”


author: BLANCHE, Justice.

text:
    Mrs. Frances H. HOOD v. U.S.I.F. WYNNEWOOD CORPORATION et al. Metry Cab Service and Consolidated Crescent Enterprises, Ltd., and Ernest J. Dufrene, Jr.
    No. 66575.
    Supreme Court of Louisiana.
    July 7, 1980.
    Rehearing Denied Sept. 12, 1980.
    Edwin R. Fleischmann, Jr., Gilbert V. Andry, III, Jerald N. Andry, New Orleans, for plaintiff-applicant.

      William H. Syll, Jr., Trial Atty., Bernard, Cassisa, Babst & Saporito, Metairie, for defendants-respondents.
   BLANCHE, Justice.

We approve the factual resume in the opinion of the Court of Appeal, 377 So.2d 480 (La.App. 4th Cir. 1979), and affirm its decision with the following revision.

The opinion of the Court of Appeal refers to Galland v. N.O.P.S.I., 370 So.2d 610 (La.App. 4th Cir. 1979). On writs of certiorari to this Court, we reversed that decision, stating that the mere showing of an injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence. Upon making such a showing, proof of the cause of the damage, or an act or failure to act on the part of the defendant and the fault or negligence of the carrier (La. C.C. arts. 2315 and 2316), will be treated by the courts as presumed, and the burden of proof then shifts to the carrier to show that the incident did not occur, or that the defendant exercised reasonable care, or that any negligence on its part was not the legal cause of the plaintiff’s mishap.

Had Mrs. Hood’s account of the incident ended with the showing that, as a fare-paying passenger, she had not reached her destination safely, she would have established a prima facie of negligence. However, her further testimony exonerated the carrier for, according to Mrs. Hood, she stepped blindly from the cab into the street after having effectively blocked her own scope of vision with a bag of groceries.

We, therefore, can only conclude that Mrs. Hood’s own negligence was the sole cause of the accident. For these reasons, the judgment of the court of appeal is affirmed.

AFFIRMED.

CALOGERO and DENNIS, JJ., dissent.

WATSON, J., concurs in the result.

LEMMON, J., recused.

      . Galland v. N.O.P.S.I., 377 So.2d 84 (La. 1979).