text:
    DIVISION OF ADMINISTRATION, FACILITY PLANNING AND CONTROL v. Joseph GOSSEN.
    No. 82-C-0671.
    Supreme Court of Louisiana.
    March 23, 1982.
   In re Division of Administration, Facility Planning and Control, applying for supervisory writs. Parish of East Baton Rouge. State Civil Service Commission. No. 2735.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Lloyd E. LAZARD.
    No. 82-K-0702.
    Supreme Court of Louisiana.
    March 24, 1982.
   In re Lloyd E. Lazard, applying for writs of certiorari, prohibition, mandamus and stay order. Orleans Parish. No. 287-270.

Denied. Adequate remedy by appeal in event of conviction.


text:
    STATE of Louisiana ex rel., James V. MITCHELL v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-KH-0106.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re James V. Mitchell, applying for writ of certiorari, habeas corpus, 4th Judicial District Court. Parish of Ouachita. Nos. 39970, 39993 and 40049.

Denied.


text:
    William ROBINSON v. ESTATE OF Donald W. HAYNES, et al. William L. MILLER, et al., v. RAGUSA BROTHERS, INC., and Hanover Insurance Company. John BELLARD v. RAGUSA BROTHERS, INC., et al. Phillip DOMIANO v. Succession of Donald W. HAYNES, et al. Kim ROBINSON, Individually and as Natural Tutrix of the Minor Children, Tammaka Robinson and Myneshia Robinson v. William L. MILLER, et al. Barbara WASHINGTON v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al. INSURED LLOYDS v. STATE of Louisiana, Through the DEPT. OF TRANSPORTATION AND DEVELOPMENT, OFFICE OF HIGHWAYS, et al.
    No. 82-C-0717.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re State of Louisiana, through the Dept, of Transportation and Development, applying for writs of certiorari, prohibition, mandamus, supervisory writs and stay order. Parish of Tangipahoa. Nos. 59610, 59972, 61649, 60011, 61650, 61651, and 61652.

Denied.


text:
    STATE of Louisiana v. Vincent ORLANDO.
    No. 82-K-0685.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Vincent Orlando, applying for writs of certiorari or review. Parish of Rapides. Nos. 200647B and 200648B.

Granted. The ruling of the trial judge is reversed; the amended Article 701 is applicable to this defendant. The case is remanded to the district court for a contradictory hearing pursuant to Article 701 D and E.

MARCUS and WATSON, JJ., would deny the application.

LEMMON, J., dissents from the order.


text:
    STATE of Louisiana v. Oscar L. BANNISTER.
    No. 82-K-0734.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Oscar L. Bannister, applying for writs of certiorari, mandamus, and stay order. Parish of Vernon. 30th Judicial District Court. No. 35627.

Denied.


text:
    STATE of Louisiana, ex rel., Willie L. JACKSON v. CLERK OF COURT, 2ND JUDICIAL DISTRICT COURT, PARISH OF JACKSON.
    No. 82-KH-0235.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Willie L. Jackson, applying for writ of mandamus. Parish of Jackson.

Granted. Transfer to district court for action.


text:
    STATE of Louisiana ex rel. Robert L. THIBODEAUX v. CLERK OF COURT, SECTION “A”, CRIMINAL DISTRICT COURT, ORLEANS PARISH, STATE of Louisiana.
    No. 82-KH-0427.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Robert L. Thibodeaux, applying for writ of mandamus. Parish of Orleans. No. 260-072.

Granted. The trial court is ordered to rule on relator’s motion for transcripts.


text:
    STATE of Louisiana v. Henry JOHNSON, Charles Johnson and L. B. Johnson.
    No. 82-K-0574.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Henry Johnson, Charles Johnson and L. B. Johnson, applying for writ of certiorari, and review, to the 11th Judicial District Court. Parish of Sabine. Nos. 1009 and 1007.

Granted. The trial judge is ordered to allow relators to live in Texas with reasonable reporting restrictions, pending trial.

BLANCHE, J., dissents from the order.


text:
    STATE of Louisiana v. Bruce W. HARDY.
    No. 82-K-0615.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Bruce W. Hardy, applying for writs of certiorari and mandamus. Parish of Jefferson. No. 81-1189.

Granted. It is ordered that relator be returned to Jefferson Parish pending appeal.


text:
    Edward J. ALLOR v. BELDEN CORPORATION.
    No. 82-C-0532.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Edward J. Allor, applying for cer-tiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 410 So.2d 1184.

Denied.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Henri LORIDANS.
    No. 82-O-0071.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Henri Loridans, applying for reinstatement of Henri Loridans. Parish of Caddo.

It is ordered that the attorney be reinstated to the Bar.


text:
    In re Lloyd E. HENNIGAN, Jr.
    No. 82-O-0387.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Lloyd E. Hennigan, Jr., applying for reinstatement to the Louisiana State Bar Association. Parish of Winn.

Granted. Reinstatement ordered.


text:
    STATE of Louisiana ex rel. Ervin Ray DENNY v. Frank C. BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 81-KH-2057.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Ervin Ray Denny, applying for reconsideration. Parish of Concordia. No. 72-2055.

Denied.


text:
    STATE of Louisiana, ex rel. Walter L. PRICE, Jr. v. STATE of Louisiana.
    No. 81-KH-2486.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Walter L. Price, Jr., applying for remedial writs. Parish of Orleans. No. 246-011.

Denied.


text:
    STATE of Louisiana ex rel. Charles WILLIAMS v. Ross MAGGIO, Jr., Warden.
    No. 81-KH-2866.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Charles Williams, applying for supervisory writ and writs of certiorari, mandamus and habeas corpus. Parish of East Baton Rouge. No. 3-77-638.

Denied.


text:
    STATE of Louisiana ex rel. Elbert STEWART v. John T. KING, Secretary, Louisiana Department of Corrections.
    No. 81-KH-3075.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Elbert Stewart, applying for writ of certiorari, review and a stay order. Parish of Caddo. No. 105-812-HC.

Denied.


text:
    STATE of Louisiana v. Charles DELAVALLADE.
    No. 81-K-3206.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Charles Delavallade, applying for writ of certiorari, mandamus and prohibition. Parish of Orleans. No. 276-163.

Denied.

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


text:
    STATE of Louisiana ex rel. Lawrence MITCHELL and Ronald Demery v. J. D. MIDDLEBROOKS, Warden, Louisiana Correctional Institute.
    No. 81-KH-3213.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Mitchell and Demery, applying for remedial and supervisory writs, to the 9th Judicial District. Parish of Rapides. No. 141-972.

Denied.


text:
    STATE of Louisiana, ex rel. Herbert JOSEPH v. STATE of Louisiana.
    No. 81-KH-3277.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Herbert Joseph, applying for writ of habeas corpus. Parish of Lafayette. No. 36597.

Denied.


text:
    STATE of Louisiana ex rel. Murray SUTTON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0051.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Murray Sutton, applying for remedial writs. Parish of Orleans. No. 276-502.

Denied.


text:
    STATE of Louisiana ex rel. Shedrick NOBLE v. STATE of Louisiana.
    No. 82-KH-0077.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Shedrick Noble, applying for writs of certiorari, habeas corpus and mandamus. Parish of Orleans. No. 242-872.

Denied.


text:
    STATE of Louisiana ex rel. Carl SANGER, a/k/a James Wilson v. FIRST JUDICIAL DISTRICT COURT.
    No. 82-KH-0078.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Carl Sanger a/k/a James Wilson, applying for writ of mandamus. Parish of Caddo. No. 109527.

Denied.


text:
    STATE of Louisiana ex rel. Bradley David HEBERT v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0116.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Bradley David Hebert, applying for writs of certiorari and habeas corpus. Parish of Cameron. Nos. 15036, 15037 and 15038.

Denied.


text:
    STATE of Louisiana, ex rel. Foster SHIVERS v. CADDO PARISH SHERIFF OFFICE, et al.
    No. 82-KH-0162.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Foster Shivers, applying for supervisory writs. Parish of Caddo. No. 111797.

Denied.


text:
    STATE of Louisiana, ex rel. Cleon Dun HURST v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0163.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Cleon Dun Hurst, applying for writ of habeas corpus. Parish of St. Tammany. No. 58794.

Denied.


text:
    STATE of Louisiana ex rel. Bruce LECHE v. CLERK OF COURT, Mr. Edwin Lombard, Criminal District Court Building.
    No. 82-KH-0233.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Bruce Leche, applying for remedial writs. Parish of Orleans. No. 278-997.

Denied.


text:
    STATE of Louisiana ex rel. Jack D. REYNOLDS v. 14TH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, State of Louisiana.
    No. 82-KH-0169.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Jack D. Reynolds, applying for writ of mandamus. Parish of Calcasieu. No. 3390-77.

Denied.


text:
    STATE of Louisiana, ex rel. Keith D. ELLIOTT v. Roger AUCOIN, Warden, East Baton Rouge Parish Prison.
    No. 82-KH-0251.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Keith D. Elliott, applying for supervisory writs. Parish of East Baton Rouge. No. 6-81-298-258.

Denied.


text:
    STATE of Louisiana, ex rel. Abraham BONNIER v. CLERK OF COURT, 9TH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES.
    No. 82-KH-0362.
    Supreme Court of Louisiana.
    March 26, 1982.
   In. re Abraham Bonnier, applying for writ of mandamus. Parish of Rapides. No. 172174.

Denied.


text:
    STATE of Louisiana v. James E. CHISHOLM.
    No. 82-K-0370.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re James E. Chisholm, applying for writ of review. Parish of East Baton Rouge. No. 8-81-236.

Denied.

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


text:
    STATE of Louisiana, ex rel. Lyman B. THOMPSON v. Ross MAGGIO, Jr., State of Louisiana.
    No. 82-KH-0406.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Lyman B. Thompson, applying for remedial writs. Parish of Ouachita. No. 39175.

Writ denied.


text:
    STATE of Louisiana, ex rel. Alvin JOHNSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0418.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Alvin Johnson, applying for remedial writs. Parish of Orleans. No. 243-278.

Denied.


text:
    STATE of Louisiana, ex rel. Mark A. FORD v. Honorable Edwin LOMBARD, Clerk of Court, Orleans Criminal District Court.
    No. 82-KH-0429.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Mark A. Ford, applying for writ of mandamus. Orleans Parish. No. 238-989.

Denied.


text:
    Richard CARTER v. TRAVELERS INDEMNITY COMPANY, et al.
    No. 82-C-0501.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Richard Carter, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Avoyelles. No. 8524.

Denied.


text:
    D. M. GREENUP AND SONS, INC. v. Dollie M. POWELL.
    No. 82-C-0528.
    Supreme Court of Louisiana.
    March 26, 1982.
    Reconsideration Granted May 7, 1982.
   In re Dollie M. Powell, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 12802. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Jimmy HOLLAND.
    No. 82-K-0529.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Jimmy Holland, applying for supervisory writs. Parish of Lincoln. No. 26360.

Denied.

DIXON, C. J., and DENNIS, J., would grant on the Boykin issue; otherwise denied.


text:
    STATE of Louisiana v. Charles Edward TENNER.
    No. 82-K-0573.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Charles Edward Tenner, applying for supervisory writs of certiorari, prohibition and mandamus, to the 19th Judicial District Court. Parish of East Baton Rouge. No. 10-81-67.

Denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. Edward LEWIS.
    No. 82-K-0601.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Edward Lewis, applying for writ of review. Parish of Terrebonne. No. 102674.

Denied.


text:
    STATE of Louisiana v. Bruce CLINTON.
    No. 82-K-0618.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Bruce Clinton, applying for supervisory writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 4-81-702.

Denied.


text:
    Gary Neil FONTANA v. Kay Marie FONTANA.
    No. 82-C-0680.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Gary Neil Fontana, applying for remedial and supervisory writs. Parish of Ouachita. No. 129494.

Denied.


text:
    Kim ROBINSON, Individually and as Natural Tutrix of the Minor Children, Tammaka Robinson and Myneshia Robinson v. William L. MILLER, et al.
    No. 82-C-0708.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re State of Louisiana, Department of Transportation and Development, Office of Highways, applying for writ of certiorari, prohibition, mandamus and supervisory writs and a stay order. Parish of Tangipa-hoa. No. 59972.

Denied.


text:
    Donald J. PALMISANO, et al. v. LAKE FOREST BOULEVARD MEDICAL DEVELOPMENT, et al.
    No. 82-C-0557.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Donald J. Palmisano, et al., applying for writ of certiorari, supervisory writs, prohibition and mandamus. Parish of Orleans, Civil District Court. No. 79-19200.

Denied.

DIXON, C. J., and WATSON, J., would grant the writ.


text:
    Vera GIANECHINI, Individually and as Natural Tutrix of the Minor Child David Gianechini and Executrix of the Estate of Ernest Gianechini v. CITY OF NEW ORLEANS, New Orleans Fire Department, Arthur Turner, Joseph Fricano, Early American Insurance Company and XYZ Insurance.
    No. 82-C-0596.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Vera Gianechini, Individually and as Tutrix of the Estate of David Gianechini and as Executrix of the Estate of Ernest Gianechini, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 410 So.2d 292.

Denied.


text:
    Jacob A. WORTMANN v. Louise FRENCH, Divorced Wife of Jacob Wortmann.
    No. 82-C-0593.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Jacob A. Wortmann, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. 410 So.2d 290.

Denied. The result is correct.

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


text:
    Diane DELERY, Wife of and Carl Delery, Individually v. Marvin J. SCHNEIDER, Owens Country Sausage, Inc., and Employers Casualty Company.
    No. 82-C-0582.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Marvin J. Schneider, Owens Country Sausage, Inc., and Employers Casualty Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 410 So.2d 857.

Denied.

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


text:
    Arnold D. WHITE, Jr., et al. v. Mikell I. PATTERSON, et al.
    No. 82-C-0584.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Arnold D. White, Jr., and Mary Ann White, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 409 So.2d 290.

Denied.


text:
    Martha LAWRENCE, Individually and as Administratrix of the Estate of Her Minor Son, Bruce Lawrence v. GRANT PARISH SCHOOL BOARD, et al.
    No. 82-C-0561.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Martha Lawrence, individually and as Administratrix of the Estate of her Minor Son, Bruce Lawrence, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Grant, 409 So.2d 1316.

Denied. The result is correct.

DIXON, C. J., and MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Honora F. GRAVOIS v. Louis OCKMOND and Mildred O. Landry.
    No. 82-C-0404.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Honora F. Gravois, applying for writ of review, to the Fourth Circuit Court, Court of Appeal. Parish of St. James. 409 So.2d 400.

Writ denied.

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


text:
    Mrs. George M. COX v. Mrs. Medorah Head SANDERS, Jerry Head Sanders, and Thomas A. Sanders, Jr.
    No. 82-C-0482.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Mrs. Medorah Head Sanders, Jerry Head Sanders and Thomas A. Sanders, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 409 So.2d 1257.

Granted.

DENNIS, J., recused.


text:
    Randall S. DEWITT v. The WALDINGER CORPORATION.
    No. 82-C-0620.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Scaffolding Rental and Erection Services Inc., applying for writ of certiorari or review. Parish of St. Charles. No. 20-911.

Denied.

MARCUS, J., would grant the writ.


text:
    Julius W. CERDES v. Howard R. WRIGHT, et al.
    No. 82-C-0547.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Julius W. Cerdes, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 408 So.2d 926.

Denied.


text:
    CREDIT BUREAU OF MORGAN CITY-BURWICK, INC., etc. v. ELECTRICAL SYSTEMS & SERVICE, INC., et al. DRILLING & MARINE ELECTRIC SUPPLY COMPANY, INC. v. ELECTRICAL SYSTEMS & SERVICE, INC., et al.
    No. 82-C-0542.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re SERMAC Electrical Systems, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 408 So.2d 925.

Denied.


text:
    LOUISIANA POWER & LIGHT COMPANY v. Harry D. ROBERTS, Jr., & Mary Catherine Wishum Roberts.
    No. 82-C-0530.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Harry D. Roberts, Jr. and Mary Catherine Wishum Roberts, applying for certiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 408 So.2d 49.

Denied.

DIXON, C. J., would grant the writ.


text:
    AUTO PAINT & SUPPLIES CO., INC. v. Huey HALE; James E. McCrory (Intervenor).
    No. 82-C-0509.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Auto Paint & Supplies Co., Inc., applying for certiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 408 So.2d 346.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Guy Wesley BUTLER.
    No. 82-K-0460.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Guy Wesley Butler, applying for writs of certiorari or review. Parish of Ouachita. Nos. M: 47365 and M: 47366.

Denied.


text:
    Reverend Walter COOK v. Mister Charlie GAYDEN and Mrs. Lullabelle Gayden.
    No. 82-C-0589.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Reverend Walter Cook, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 12564. Orleans Parish, First City Court.

Denied.


text:
    Charles MORTON and Dorothy Morton v. The JEFFERSON PARISH COUNCIL, et al.
    No. 82-C-0410.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re The Jefferson Parish Council and the Parish of Jefferson, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 408 So.2d 3.

Granted.


text:
    UNITED STATES FIDELITY GUARANTY COMPANY v. VICTORY LAND COMPANY, INC., Tupper Supply Co., John P. Hall, Jr. and John P. Hall, Sr., Junior Hall, III and General Accident Insurance Company and New Orleans Public Service, Inc. SECURITY INSURANCE COMPANY, et al. v. NEW ORLEANS PUBLIC SERVICE, INC., et al. FEDERAL INSURANCE COMPANY, et al. v. NEW ORLEANS PUBLIC SERVICE INC., et al. FIREMAN’S FUND INSURANCE COMPANY v. NEW ORLEANS PUBLIC SERVICE INC., et al.
    No. 82-C-0608.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re New Orleans Public Service Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 410 So.2d 359.

Denied.

DIXON, C. J., dissents from the refusal of the Court to apply sanctions for the use of intemperate accusations in the brief.


text:
    William H. DOWTY, Walter Nunes, Henry J. Knoll, Jr., and Steven Kahn v. BLUE CROSS OF LOUISIANA, d/b/a Louisiana Health Service and Indemnity Company.
    No. 82-C-0559.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Louisiana Health Service and Indemnity Company d/b/a Blue Cross of Louisiana, applying for writs of certiorari and review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 410 So.2d 332.

Writ denied.


text:
    Naomi CARTER and William E. Carter v. CITY PARISH GOVERNMENT OF EAST BATON ROUGE, et al. Mrs. Mary JONES v. STATE of Louisiana THROUGH the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 82-C-0594.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Naomi Carter and William E. Carter, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 409 So.2d 345.

Granted as to assignment of error number 1, the claim against State Farm; otherwise denied.


text:
    Naomi CARTER and William E. Carter v. The CITY PARISH GOVERNMENT OF EAST BATON ROUGE, et al. Mrs. Mary JONES v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 82-C-0677.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Mary Jones, Individually and on behalf of the Minor Children, Larry Davis, Jr., DeJean Davis and Roy Jevaugh Davis, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 409 So.2d 345.

Denied.


text:
    Leopold GOUDCHAUX v. STATE FARM FIRE & CASUALTY COMPANY.
    No. 82-C-0508.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Leopold Goudchaux, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 407 So.2d 1317.

Denied.

DENNIS, J., would grant the writ.


text:
    Mr. and Mrs. Keith M. DESSELLES, Individually and on Behalf of Their Minor Child, Brian Desselles v. Fred O. BRUMFIELD, M. D., and Southern Baptist Hospital.
    No. 82-C-0510.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Southern Baptist Hospital, applying for supervisory and/or remedial writs. Parish of Orleans. No. 79-19156.

Writ denied.


text:
    Ms. Rubayah Abdul MALEK, As Next Friend on Behalf and in the Interest of a Conceived, Unborn and Unnamed Infant v. Seyed Nasrollah YEKANI-FARD: and the Conceived, Unborn and Unnamed Infant.
    No. 82-C-0621.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Ms. Rubayah Abdul Malek, applying for remedial writs of certiorari and review. Parish of East Baton Rouge. No. 57250.

Granted. Consolidate with 82-C-0644.


text:
    Ms. Rubayah Abdul MALEK, as Next Friend on Behalf and Interest of a Conceived Unborn and Unnamed Infant v. Seyed Nasrollah YEKANI-FARD and the Conceived, Unborn and Unnamed Infant.
    No. 82-C-0644.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Unborn and Unnamed Infant, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 57250.

Granted. Consolidate with 82-C-0621.


text:
    Vernon MICHAELMAN v. Sheriff J. Al AMISS, Warden Rodger Aucoin, the Parish of East Baton Rouge and the State of Louisiana.
    No. 82-C-0619.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Vernon Michaelman, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 409 So.2d 365.

Writ denied.


text:
    Joseph RENNIER v. Joe JOHNSON, Jr., Baker Manufacturing Co., and Employers Insurance of Wausau.
    No. 82-C-0539.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Baker Manufacturing Co., and Employers Insurance of Wausau, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 410 So.2d 1149.

Denied.

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


text:
    SOUTHERN-GULF MARINE CO. NO. 9, INC. v. CAMCRAFT, INC.
    No. 82-C-0566.
    Supreme Court of Louisiana.
    March 26, 1982.
   In re Camcraft, Inc., applying for writ of certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Martin. 410 So.2d 1181.

Denied. The result is correct.


text:
    STATE of Louisiana v. Nathaniel SMALL.
    No. 82-K-0742.
    Supreme Court of Louisiana.
    March 30, 1982.
   In re Nathaniel Small, applying for writs of certiorari, prohibition and mandamus. Parish of Tensas. 6th Judicial District. No. 29097.

Denied. Relator may appeal following sentence. See C.Cr.P. 363.


text:
    STATE of Louisiana v. John E. BORRAS, Jr.
    No. 82-K-0784.
    Supreme Court of Louisiana.
    April 2, 1982.
   In re John E. Borras, Jr., applying for writs of certiorari, review, prohibition and mandamus. Parish of Jefferson. No. 82-K-0784.

Denied.


text:
    Mary LAMBERT v. Barbara J. ADAMS, the Hertz Corporation, et al. Mrs. Mary P. LAMBERT Wife of/and Kenneth Lambert and Mrs. Urshline Douga, Wife of and Ernest Douga v. LIFT & EQUIPMENT SERVICE, et al.
    No. 82-C-0647.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Barbara J. Adams and The Hertz Corporation, applying for writs of prohibition and mandamus. Parish of Orleans. No. 81-6979.

Denied.


text:
    Jerry L. ROBINETT v. SCHWERMAN TRUCKING CO., INC., and J. H. Jeansonne.
    No. 82-C-0648.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Jerry L. Robinett, applying for writs of mandamus and prohibition. Parish of Orleans. No. 80-904.

Writ denied on the showing made.


text:
    STATE of Louisiana v. Bertha M. BRAUD.
    No. 82-K-0651.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Bertha M. Braud, applying for writs of certiorari. Parish of Ascension. No. 8577.

Denied.


text:
    STATE of Louisiana ex rel. Clarence RANDOLPH v. Numa BERTEL, Indigent Defender Program and Edwin A. Lombard, Orleans Parish Criminal District Court’s Clerk.
    No. 82-KH-0692.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Clarence Randolph, applying for writs of mandamus and prohibition. Parish of Orleans. No. 282-026.

Denied.


text:
    STATE of Louisiana ex rel. Vernon BRANAUGH v. STATE of Louisiana.
    No. 82-KH-0098.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Vernon Branaugh, applying for writ of certiorari, habeas corpus and mandamus, to the 19th Judicial District Court. Parish of East Baton Rouge. No. 7-75-763.

Granted. An evidentiary hearing is ordered.

MARCUS, J., dissents.


text:
    STATE of Louisiana, ex rel. Paul LONG v. CLERK OF COURT AND COURT REPORTER, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION E.
    No. 82-KH-0313.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Paul Long, applying for writ of mandamus. Parish of Orleans. No. 272-233.

Granted. Respondent is ordered to furnish relator with a transcript of the Boykin examination.


text:
    Katherine R. KRAMPE v. Edward J. KRAMPE.
    No. 82-C-0638.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Katherine R. Krampe, applying for writs of certiorari, mandamus, and prohibition. Parish of Lafayette. No. 80-4209.

Writ granted. The motion to compel discovery is granted.


text:
    William ROBERTSON and Vicki C. Robertson v. GULF SOUTH BEVERAGES, INC.
    No. 82-C-0640.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re William Robertson and Vicki C. Robertson, applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 14433.

Granted.


text:
    STATE of Louisiana v. Kevin Gene DEES.
    No. 82-K-0673.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Kevin Gene Dees, applying for writs of certiorari. Parish of Calcasieu. Nos. 5668-81, and 15,188-81.

Treat as an appeal.


text:
    Mayor Joe SAMPITE v. NATCHITOCHES MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD and James E. Reichel.
    No. 82-C-0748.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re James E. Reichel, applying for appointment of judge ad hoc. Natchitoches Parish. No. 50064.

Denied.


text:
    CITY OF PINEVILLE v. Paul D. HOLLEY.
    No. 81-K-2365.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Paul D. Holley, applying for remedial writs. City Court of Pineville. Parish of Rapides. Nos. 27308 and 27309.

Writ denied.


text:
    STATE of Louisiana v. Thomas David KELLY.
    No. 81-K[A]-2485.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Thomas David Kelly, applying for remedial writs. Parish of Avoyelles. No. 46505.

Denied. Treating the matter as a writ application, it is denied on the showing made.


text:
    STATE of Louisiana ex rel. Albert A. DOBBS v. C. Thomas BIENVENU, Jr., Judge, Division “A”, 16th Judicial District Court, Parish of St. Mary, State of Louisiana.
    No. 82-KH-0005.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Albert A. Dobbs, applying for writ of mandamus. Parish of St. Mary.

Denied.


text:
    STATE of Louisiana, ex rel. Patricia CHERAMIE v. Johnnie JONES, Warden, Louisiana Correctional Institute For Women.
    No. 82-KH-0161.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Patricia Cheramie, applying for supervisory writ of habeas corpus. Parish of Orleans. No. 276-827.

Denied.


text:
    STATE of Louisiana, ex rel. Albert REY v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-KH-0221.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Albert Rey, applying for writs of certiorari review and stay order. Parish of Orleans. No. 248-426.

Denied.


text:
    STATE of Louisiana, ex rel. Jesse POWELL v. Donald R. GUILLORY, Warden, Wade Correctional Center.
    No. 82-KH-0225.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Jesse Powell, applying for writ of habeas corpus and post conviction relief. Parish of Rapides. No. 176769.

Denied.


text:
    STATE of Louisiana, ex rel. Toney CARNEY v. N. Burl CAIN, Warden, Dixon Correctional Institute.
    No. 82-KH-0236.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Toney Carney, applying for writs of certiorari. Parish of Orleans. No. 270-406.

Denied.


text:
    STATE of Louisiana v. Carl WATKINS.
    No. 82-K-0623.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Carl Watkins, applying for writs of certiorari prohibition, mandamus and a stay order. Parish of East Baton Rouge. No. 12-81-316.

Denied.


text:
    STATE of Louisiana v. Judith S. McWhorter.
    No. 82-K-0625.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Judith S. McWhorter, applying for writ of review. Parish of Jefferson. No. 76-2726.

Writ denied.


text:
    STATE of Louisiana v. Benton H. GASTON, Jr.
    No. 82-K-0639.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Benton H. Gaston, Jr., applying for writ of certiorari. Parish of Caldwell. No. 23221.

Denied.


text:
    Anne Smith ABERNATHY, et al. v. Richard W. VARNADO, et al.
    No. 82-C-0669.
    Supreme Court of Louisiana.
    April 5, 1982.
   In re Anne Smith Abernathy, applying for writ of certiorari, or review. First Circuit, Court of Appeal. 409 So.2d 682. Parish of Ascension.

Denied.


text:
    STATE of Louisiana, ex rel. Raymond ROSS v. STATE of Louisiana.
    No. 82-KH-0803.
    Supreme Court of Louisiana.
    April 6, 1982.
   In re Raymond Ross, applying for an appeal bond. Parish of Terrebonne.

Denied. Relator must apply first to the district court.


text:
    STATE of Louisiana, ex rel., Jerry P. PLESSLA, Jr. v. STATE of Louisiana.
    No. 82-KH-0804.
    Supreme Court of Louisiana.
    April 6, 1982.
   In re Jerry P. Plessla, Jr., applying for an appeal bond. Parish of St. Mary. No. 110885.

Denied.


text:
    STATE of Louisiana, ex rel., Benjamin A. BERRY v. John T. KING, Secretary of Department of Corrections and Ross Maggio, Warden, State Prison.
    No. 82-K-0823.
    Supreme Court of Louisiana.
    April 6, 1982.
   In re Benjamin A. Berry, applying for motion for clarification and to vacate warrant of execution and/or emergency stay order. Parish of Jefferson. No. 78-2151.

Granted. Warrant for relator’s execution is vacated. A habeas corpus application was filed here on December 22,1981, and an order issued staying the execution pending further orders of this Court. An evidentia-ry hearing was ordered and evidence has been taken in the trial court, but the transcript of the testimony has not yet been filed in this Court. This Court has not had an opportunity to rule on the matter. The warrant for relator’s execution was therefore issued prematurely.

BLANCHE, J., recused.


text:
    STATE of Louisiana v. Glenn M. STOKES.
    No. 82-K-0838.
    Supreme Court of Louisiana.
    April 7, 1982.
   In re Glenn M. Stokes, applying for writs of certiorari, mandamus, prohibition and stay order. Parish of Jefferson. No. 81-4066.

Denied. Defendant has not been required to make any incriminating communication, and need not do so.


text:
    STATE of Louisiana v. Robert J. BOUTON.
    No. 82-K-0847.
    Supreme Court of Louisiana.
    April 8, 1982.
   In re Robert J. Bouton, applying for writ of review. East Baton Rouge Parish. No. 11-81-121.

Writ granted. Continuance granted.


text:
    STATE of Louisiana v. Lee MATTHEWS.
    No. 82-K-0914.
    Supreme Court of Louisiana.
    April 14, 1982.
   In re Lee Matthews, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson.

Denied.


author: WATKINS, Judge.

text:
    Sheldon R. McNEAL and Kay K. McNeal v. DIVISION OF STATE POLICE, DEPARTMENT OF PUBLIC SAFETY, State of Louisiana.
    No. 14540.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Rehearing Denied April 13, 1982.
    Writ Denied May 28, 1982.

      David W. Robinson, Baton Rouge, for Sheldon R. McNeal and Kay K. McNeal.
    Gerald L. Walter, Jr., Vincent P. Fornias, Baton Rouge, for Division of State Police, Dept, of Public Safety, State of La.
    Kenneth E. Barnette, Baton Rouge, for H Moving & Storage, Inc., Charles R. Gates and Transamerica Ins. Co.
    Walter Monsour, Jr., Frank J. Gremillion, Baton Rouge, for City of Baton Rouge.
    John Michael Parker, Baton Rouge, for Travelers Ins. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action for wrongful death arising from a rear end collision between the front of a large truck and trailer (an 18-wheeler) driven by Charles Gates and owned by H Moving & Storage, Inc., Kileen, Texas, and the rear of a Volkswagen driven by Michael Blane McNeal, son of plaintiffs, who was killed in the accident. Defendants are the Division of State Police, Department of Public Safety, State of Louisiana, and the City of Baton Rouge. An action for wrongful death was simultaneously brought by the same plaintiffs in the United States District Court for the Middle District of Louisiana against H Moving & Storage, Inc., Charles Gates, and their liability insurer. That suit was settled for $80,-000.00. Before trial of the present suit, counsel stipulated that in the event defendants should be found liable, judgment would be reduced to account for the share of the previous defendants already released in the federal suit.

After trial, the trial court rendered judgment for defendants, giving oral reasons, dismissing plaintiffs’ state court action with prejudice. Plaintiffs perfected a devolutive appeal to this court. We affirm.

The basis of plaintiffs’ claim against the State of Louisiana and the City of Baton Rouge is that the police of these governmental entities failed to impound the truck driven by Gates, or otherwise to prevent Gates from driving the truck, although they knew the vehicle had defective air brakes.

The versions of events leading up to the accident given by the state police in testimony in open court differ from the version of those events given by Gates in testimony by deposition. The trial court did not believe Gates’ testimony. In that evaluation of Gates’ testimony, we find no manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). Particularly is this the case when we note that Gates’ testimony differed in material details from that given by the other witnesses. Therefore, in reciting the facts, we shall recite the facts as stated by the witnesses other than Gates, except in one particular relating to the instructions Gates testified he received from the State Police, in which we shall give both versions.

On October 3, 1977, Charles Gates was driving an 18-wheeler truck through Baton Rouge on his way to Slidell, Louisiana. He experienced difficulty with his air brakes and was concerned about continuing to operate the truck under these conditions. Since he felt that his boss would not permit him to take the truck off the road unless ordered to do so, he decided to seek assistance from law enforcement officials.

Consequently, he called Troop A headquarters from the site where he had pulled his truck off on the shoulder of Airline Highway (approximately seven or eight miles north of Troop A), and spoke to a Sergeant Baxter. He described the situation to Baxter and suggested that the State Police “redline” or “deadline” the truck, i.e., take it off the road. Although Baxter testified that he could not recall whether or not Gates specifically told him that he was having brake trouble, the record indicated that he did. In any event, Baxter advised him that he could either contact the City Police to get help or bring the truck into Troop A to have it checked.

Gates then flagged down a Baton Rouge City Police car and spoke to Officer Seale. Officer Seale radioed his superior, Sergeant McLendon and told him that Gates’ boss wanted Gates to drive the truck, although it had defective brakes. McLendon misunderstood the communication, understanding Seale to say Gates’ boss wanted the truck off the road. McLendon instructed Seale to tell Gates all the City Police could do was call a wrecker, which offer Gates refused. Gates said he might drive the truck to Troop A headquarters. Officer Seale and Gates left in their respective vehicles.

McLendon alerted the State Police at Troop A headquarters to the situation. Gates drove the truck down the Airline Highway to the headquarters and parked it on the shoulder across from Troop A. Gates spoke to Sergeant Wisner of the State Police and told him that his brakes lacked air pressure. Trooper Fournet was contacted on the highway to come check the brakes, and he returned to Troop A headquarters. Wisner instructed Gates to drive the truck into the Troop A parking lot, which manuever necessitated making a U-turn in the truck. Fournet inspected the air brakes and said they were bad, Sergeant Wisner then telephoned Gates’ boss, Mr. Henderson, in Texas, and told him that the air brakes were bad and that the truck could not be moved. After Wisner talked to Henderson, Gates was permitted to talk to Henderson on another telephone. It is not known what Henderson said to Gates. Fournet relieved Wisner at the desk briefly while Wisner was meeting with a superior officer. When Gates’ conversation with his boss was ended, Gates called various repair shops. He then walked up to Fournet and told Fournet, who was at the desk, that he had found someone to fix the truck. In reply to Fournet’s inquiry, Gates told him he would have to take it to the repair shop, but that he wanted to talk to his boss again. Since Sergeant Wisner was returning just then, Fournet told Gates to finish this up with Wisner. Fournet did not relate to Wisner what Gates had just told him about the repairs. Fournet then left. Troop A headquarters.

Here, the versions differ. The version testified to by Wisner is that Gates simply told Wisner that he was going to have the truck fixed. Gates testified that he found that Cummins Diesel, which was on the Airline Highway about a mile away, would repair the brakes, and that he asked Wisner directions to get there, which Wisner gave. Wisner denied Gates’ testimony that he told Gates it would be alright for him to drive the truck to the place where it was to be repaired. We do not believe that the trial court was guilty of manifest error in refusing to believe Gates’ testimony. Arceneaux v. Domingue, supra; Canter v. Koehring Company, supra. That view is supported by the testimony of Richard Gele, Service Manager of Cummins Diesel, that Cummins Diesel did only engine repair on Cummins engines (and Perkins engines as well, to a lesser extent), but did no work on brakes.' Gele further testified that he did not recall receiving a call from anyone on the day of the accident requesting brake repairs.

In any event Gates drove his truck back onto Airline Highway, supposedly on his way to have the brakes repaired. After driving a short distance down the road, Gates approached a traffic signal that was red. His air brakes would not work. He tried the mechanical hand brake, but it would not work. He then unsuccessfully tried to put the vehicle into reverse. Gates was driving in the lane closest to the median or neutral ground. He attempted to drive the truck into the ditch to his right. He did not succeed, and plowed into the back of McNeal’s Volkswagen dune buggy. Rescue efforts were made, but McNeal died a short time thereafter. Gates testified that his brakes failed as a result of which he was unable to avoid the collision.

Plaintiffs contend that both the City of Baton Rouge and the State Police were guilty of an actionable offense in failing to take the truck off the highway, arguing, basically, first, that permitting Gates to operate the truck upon the highway was actionable negligence, and, second, that release of the vehicle from the custody by first the City Police and then the State Police constituted a basis for strict liability under LSA-C.C. art. 2317.

First, we find that any negligence of the City Police in permitting Gates to operate the truck upon Airline Highway after being flagged down by Gates was too remote from the accident that occurred to constitute an actionable cause of the accident. Many acts and omissions occurred after the truck was not detained by the City Police that broke the chain of causation and that made the negligence, if any, of the City Police recede in time and causation as the force behind the accident. After Gates left Officer Seale, the Baton Rouge city policeman, Gates drove the truck down the Airline Highway to a point opposite Troop A headquarters; he was permitted by the State Police to make a U-turn on Airline Highway to enter the Troop A parking lot; the brakes were inspected and found to be faulty; the State Police made no physical restraint upon the use of the vehicle, and Gates entered Airline Highway and proceeded down the same until the accident occurred. These acts and omissions replace any negligence of the City Police as the cause of the accident and preclude a finding of negligence on the part of the City of Baton Rouge.

As to the theory of plaintiffs that the State Police were guilty of actionable negligence, it appears to this court that the State Police acted reasonably under the circumstances and that they were entirely free of actionable negligence.

As the enforcement arm of the Department of Public Safety, the State Police have a general statutory duty to enforce the provisions of the Highway Regulatory Act, of which LSA-R.S. 32:341 and 343 are parts. LSA-R.S. 32:3. However, this Act does not provide for any specific action to be taken when vehicles are found to be in violation of these provisions. LSA-R.S. 32:392 provides that the State Police may impound vehicles in violation of any provisions of this Act, but does not mandate that such action be taken. LSA-R.S. 32:392, in pertinent part, provides:

“Upon discovery of any vehicle in any manner operated in violation of this Chapter, the vehicle may be impounded forthwith by any state policeman, any authorized representative of the commissioner. ...”

The statute uses the permissive verb “may”, rather than the mandatory verb “shall”. It thus authorizes the State Police to impound a defective vehicle, rather than requires that a defective vehicle be impounded. Im-poundment of a vehicle in the present day world is a harsh remedy, as it deprives a motorist of his means of movement, and thus should be exercised with due restraint. The question of whether or not all vehicles known by the State Police to be defective should be impounded by them is a question that addresses itself to the Legislature, not to the courts. Under the present statute, the State Police are merely permitted to impound vehicles that are found to be defective. And that remedy should be applied with due restraint.

Thus, it can be seen that the State Police do not have a specific duty to impound a vehicle it knows to have bad brakes. Obviously, however, the State Police do have a duty to, in general, enforce the Highway Regulatory Act, including LSA-R.S. 32:341 and 343, and to ensure that vehicles known to have faulty brakes do not operate on public roadways. Since no statutory directives or guidelines are given, it would seem that the defendant may enforce these provisions by whatever means it deems appropriate under the circumstances.

In the present case the State Police told Gates, after the brakes were checked by Trooper Fournet and found to be defective, that he was not to drive the truck on the highway. Thus, Gates in driving the truck away from the Troop A parking lot and onto Airline Highway to the scene of the tragic accident was acting in defiance of a State Police order. The only other remedy available to the State Police was physical restraint, either of Gates or of the truck. Restraint of Gates was out of the question as he had committed no traffic offense and had manifested a cooperative attitude to the State Police, having sought them out rather than having been arrested. Gates sought to be ordered by the State Police not to drive the truck on the highway. He was so ordered. He seemed to be alarmed over the possibility that his driving the truck down the highway might kill someone. He stated he would not drive the truck until the brakes were repaired. The State Police thus acted properly and reasonably in not physically restraining Gates. Nor, for the same reasons, having ordered Gates not to drive the truck, were the State Police under a duty to impound the truck.

Gates’ statements to Wisner and Fournet could conceivably be taken to mean that Gates would drive the truck away from Troop A headquarters to a repair shop. However, the more reasonable interpretation of his remarks, in the context of the events which had transpired up to that point, is that he would call a wrecker or in any event take no further action until he talked to his boss a second time, which course of action naturally would appear to Fournet to be reasonable since Gates stated he had located a repair shop. When Gates said this, the only possible further action for the State Police, which had already ordered Gates not to drive the truck, was force, applied either to the truck or Gates. It must be remembered that Gates had voluntarily sought out the police because he did not want to drive the truck with the defective brakes on the highway. Since he had taken the truck off the highway, it was reasonable to assume that he would not go back onto the highway until the brakes were repaired. As Gates had manifested a conscientious and cooperative attitude, and had indicated he would not drive the truck until the brakes were repaired, it was not unreasonable for the State Police to believe that impoundment was unnecessary. The trust placed by the State Police in Gates and their failure to use force to detain Gates or the truck were both reasonable and mandated by our tradition of respect for personal freedom. We find the State Police free from negligence.

With respect to strict liability, plaintiffs correctly state that LSA-C.C. art. 2317 imposes strict liability upon the custodian of a defective thing. Loescher v. Parr, 324 So.2d 441 (La.1975). Strict liability may be imposed not only upon a private custodian of a defective thing, but upon a governmental agency if the governmental agency has the defective thing in its custody, under many recent cases, originating in Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980). Plaintiffs contend that the police of the City of Baton Rouge and the State Police were guilty of an actionable offense in releasing from custody the truck which they had first held in custody. Even if we assume that the City or State Police ever had the truck in custody in a legal or physical sense, which assumption is questionable as neither ever impounded the truck or took any physical action to prevent the truck from being moved, still the basis of the claim of liability is a release of the vehicle from custody, which release quite obviously takes the case outside of art. 2317 coverage, as under art. 2317, the thing must be in one’s custody, not, obviously, not be not in one’s custody. The fact of the matter is that the truck never having been impounded never fell under State Police custody. Indeed the failure of the State Police to take the truck into its custody or to impound it is the very basis of plaintiffs’ complaint. If we were to expand the coverage of art. 2317 to cases in which a thing is not in one’s custody, when the court feels it should be in one’s custody, we would be expanding art. 2317 far beyond its obvious meaning, substituting our judicial will for the intent of the redactors of the Civil Code. We thus reject appellant’s contention that there is art. 2317 strict liability on the part of the City or State.

If we had found an actionable offense had been committed, we would have to pass another hurdle, the recently jurisprudentially adopted “public duty” doctrine. Under that doctrine, a governmental agency is freed from liability for an otherwise actionable offense if the offense is a breach of duty owed the general public, but, conversely not freed from liability if the duty is owed a particular class of individuals. Dufrene v. Guarino, 343 So.2d 1097 (La.App. 4th Cir. 1977), writ denied 343 So.2d 1069 (La.1977); Fusilier v. Russell, 345 So.2d 543 (La.App. 3d Cir. 1977), writ denied 347 So.2d 261 (La.1977); Guillot v. State, 364 So.2d 254 (La.App. 3rd Cir. 1978), writ denied 366 So.2d 576 (La.1979). A recent decision of the Louisiana Supreme Court, Stewart v. Schmieder, 386 So.2d 1351 (1980), found in a case involving the wrongful death of workmen injured when a building collapsed as a result of a faulty or non-existent building inspection, that there had been a breach of a duty owed a particular class of citizens, viz, construction workmen, and that, therefore, it was unnecessary to determine whether the “public duty” doctrine constituted a part of this state’s law. However, the result was diametrically opposite the result earlier reached by the Fourth Circuit Court of Appeal in Dufrene v. Guarino, supra, in which the Supreme Court denied writs, which holding under similar factual circumstances found no liability for failure to conduct a proper fire inspection which resulted in bar patrons being burned to death, because the duty breached was a “public duty” owed the general public. We note that by finding a particular class of individuals to have been particularly subject to injury by breach of a “public duty”, for example, bar patrons, workmen, pedestrians, tenants, or for that matter users of the public highways, the “public duty” concept can in practical effect be eliminated as an active concept in our law.

However, we need not find whether or not the “public duty” doctrine or its exception in the case of injury to a particular class of individuals applies to the present case, as the “public duty” concept presupposes an otherwise actionable offense.

Here, as we have seen, neither the City of Baton Rouge nor the State was guilty of an actionable offense.

Hence, the judgment of the trial court is affirmed, all costs to be paid by appellants.

AFFIRMED.


author: PONDER, Judge. LOTTINGER, Judge,

text:
    Harold E. CLARK v. ALLSTATE INSURANCE COMPANY and Glenn J. Broussard.
    No. 14543.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Concurring Opinion March 3, 1982.

      Fred H. Belcher, Jr., Lee Herrington, Baton Rouge, for Harold E. Clark.
    Daniel R. Atkinson, Baton Rouge, for Allstate Ins. Co. and Glenn J. Broussard.
    Calvin E. Hardin, Baton Rouge, for W.J.M. Const., Inc.
    M. O’Neal Walsh, Terrence C. McCrea, Baton Rouge, for Ceco Corp.
    Edward J. Rice, Jr., New Orleans, for Bituminous Cas. Corp. or Bituminous Ins. Corp.
    Felix R. Weill, Baton Rouge, for Roy Bell, d/b/a Overhead Doors by Windsor, Bell Const. Co., and Bell Gen. Const. Corp.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

The plaintiff and four third party plaintiffs appealed the dismissal of claims against Bituminous Casualty Corporation on a motion for summary judgment.

The issue is the propriety of the summary judgment. To decide that we have to determine if there exist genuine issues of material fact especially in regard to whether the installation of a garage door was a completed operation of the assured of Bituminous.

We reverse and remand.

Glenn J. Broussard is the owner of a home built by W. J. M. Construction, Inc. Roy Bell, Roy Bell d/b/a Overhead Doors by Windsor or Bell General Construction Corporation, all insured by Bituminous, had installed an overhead garage door. After Broussard moved into his home he encountered some difficulty with the door. He and plaintiff were attempting to repair the door when the accident occurred.

After a number of pleadings, amended petitions, and third party demands had been filed, Bituminous, which was a defendant and third party defendant along with its insured Bell, filed a motion for summary judgment on the basis that it did not insure Bell on completed operations and that the installation was a completed operation.

It depends upon the following provisions of the policy:

“It is agreed that such insurance as is afforded by the Bodily Injury Liability Coverage and the Property Damage Liability Coverage does not apply to bodily injury or property damage included within the Competed Operations Hazard or the Products Hazard.”
* ’ * * * * *
“... Operations shall be deemed completed at the earliest of the following times:
(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed,
(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
(3) when the portion of the work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
“Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.”

The door was evidently designed to work manually by pulling a chain that disengaged a worm gear allowing the door to be raised or lowered without mechanical assistance, by pushing an electrical switch to activate a motor to raise or lower the door and electronically by means of a transmitter that caused the electric motor to operate in much the same manner as though the electric switch had been turned on. Admittedly, during the installation some defects were encountered that prevented the door’s activation by electrical or electronic means. The defect was not repaired or replaced and the transmitters were not supplied until after the accident occurred. It is disputed as to whether the door could be operated manually, Bituminous insisting that such operation was possible based on testimony that the door had been seen in an open position. Those who testified by deposition were not present at the time of installation. The testimony of the installers was not taken.

Plaintiff was injured while he was attempting to aid Broussard in repairing or releasing the door so that it could be closed.

Under the circumstances, we believe that Bituminous has not borne its burden of proving that there is no genuine issue of material fact and that the trial court committed error in so holding.

For these reasons the judgment is reversed and the case is remanded for further proceedings not inconsistent with these reasons. Bituminous is cast with the cost of this appeal. All other costs are to await the outcome of the case.

REVERSED AND REMANDED.

LOTTINGER, Judge,

concurring.

The majority opinion apparently bases reversal of summary judgment in favor of Bituminous on the premise that the garage door was not operable electrically and manually at the time of the accident.

However, the policy definition states in part that operations are deemed completed when the portion of the work out of which the injury arises has been put to its intended use by any person other than another contractor or subcontractor working on the same project. The portion of the work which caused Clark’s injury was the spring to the garage door. This spring was used to open the door electrically and manually. Thus, the intended use of the door spring does not depend on the proper functioning of the electric operator. If the garage door was in fact operated manually, then the spring, which was the portion of the work out of which the injury arose, would have been put to its intended usage, and operations would be deemed completed under the policy definition.

Nonetheless, because one deponent stated that he was able to open the garage door manually, and another deponent stated that he was not, I believe that whether the garage door was operable manually at the time of the accident is a genuine issue of material fact which bears significantly on whether operations were deemed completed pursuant to sub-part three of the policy definition.

Accordingly, I concur in the result reached by the majority.


author: MARVIN, Judge. SEXTON, Judge,

text:
    Willie DAVIS, Plaintiff-Appellee, v. FRANKLIN PARISH SCHOOL BOARD, et al., Defendants-Appellees, F. B. Etheridge, Defendant-Appellant, Reed & Sons Hardwood, Inc., Intervenor-Appellee.
    No. 14766.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    En Banc. Rehearing Denied April 12, 1982.
    Writ Denied June 4, 1982.

      Gravel, Robertson & Brady by David W. Robertson, Anna E. Dow and Dee D. Drell, Alexandria, for defendant-appellant, F. B. Etheridge.
    North La. Legal Assistance Corp. by Randy Hillhouse, Winnsboro, for plaintiff-ap-pellee.
    Glynn D. Roberts, Asst. Dist. Atty., Ray-ville, for defendant-appellee, Franklin Parish School Bd., et al.
    Farrar, Perry & Jefferson by Stephen A. Jefferson, Monroe, for intervenor-appellee, Reed & Sons Hardwood, Inc.
    Before MARVIN, SEXTON and NORRIS, JJ.
   MARVIN, Judge.

F. B. Etheridge, a co-defendant with the School Board, appeals a judgment which among other things, declared null, and enjoined implementation of, a lease of the Board’s 16th section lands to Etheridge, and rejected Etheridge’s demands for damages against the School Board.

We affirm the judgment annulling the lease but reverse and render judgment for Etheridge for the expenses Etheridge incurred that we find are not in excess of the value of the benefits received from his services and labor. Coleman v. Bossier City, 305 So.2d 444 (La.1974); Smith v. Town of Vinton, 216 La. 9, 43 So.2d 18 (1949).

The lease arose out of the Board’s desire that its wooded lands in the 16th section be cleared and drained and made suitable for farming, and out of the Board’s verbal instructions to prospective bidders that it would consider a bid for a farm lease of its lands in return for the lands being cleared and drained.

The Board ran this advertisement:

“The Franklin Parish School Board advertises for sealed bids for the clearing and drainage of the wooded acreage contained in the 16th Section property located in Ward 3 ... at the Franklin Parish School Board Office, 805 Jackson St., Winnsboro, Louisiana 71295.
“Specifications may be obtained at the School Board Office. * * * ”

There were no written plans or specifications. Etheridge was the successful bidder among four bidders, all of whom offered to clear and drain the lands in return for a lease of the land for a number of years. The president of the defendant Board was authorized to, and did, execute a lease to Etheridge on May 2, 1979, to be effective June 1, 1979, for a term of eight years. Between those dates, Etheridge hired timber cruisers, sold the timber to Reed and Sons Hardwood, Inc., and contracted with others and began preliminary work with bulldozers.

This action was filed and a TRO issued on May 31, 1979, to halt further work on the project. Etheridge’s timber purchaser intervened and Etheridge brought a third party demand against the Board.

The trial court annulled the timber deed from Etheridge to the intervenor purchaser and gave judgment in favor of that interve-nor and against Etheridge for $94,300, the amount that was paid Etheridge for the timber deed on May 7, 1979.

PLAINTIFF’S RIGHT OF ACTION

The threshhold issue questions plaintiff’s standing or right to bring the action. CCP 927, 681. LRS 38:2220 B. Plaintiff is not a property owner or parent of school children, but resides with his mother in the parish a few hundred yards from the wooded lands where he sometimes hunts wild game. He does pay sales taxes in the parish which accrue to the defendant Board. In League of Women Voters v. City of New Orleans, 381 So.2d 441 (La.1980), the Supreme Court was careful to point out that where a citizen was seeking to restrain unlawful action by a public entity, that citizen was not required to have the special and peculiar or particular interest required of a plaintiff who was seeking to compel the performance of a public duty.

“In Bussie v. Long, supra, .. . the Court of Appeal recognized an exception to the requirement of a particular or special interest ...
“Unlike the taxpayers in Bussie, supra, plaintiffs here do not seek to restrain .. . Instead, they seek to compel ...” 381 So.2d at p. 447.

Insofar as League of Women Voters applies to circumstances such as are presented here, we must respectfully disagree with the observation in Pierce v. Board of Supervisors, Etc., 392 So.2d 465, 467 (La.App. 1st Cir. 1980), that League of Women Voters “.. . appears to ... overrule .. . Stewart v. Stanley, 199 La. 146, 5 So.2d 531 (1941); Woodard v. Reily, 244 La. 337, 152 So.2d 41 (1963); Upper Audubon Association v. Audubon Park Commission, 329 So.2d 206 (La.App. 4th Cir. 1976), writ denied ... ”. This plaintiff is attempting to restrain action by a public body that affects the public fisc, and we must find that he has an interest, however small and indeterminable, sufficient to afford him a right of action. See Woodard v. Reily, supra; Stewart v. Stanley, supra; Upper Audubon Association v. Audubon Park Commission, supra.

Where a public body substantially complies with the Public Lease Law or the Public Bid Law, mere irregularities and in-formalities in the procedures leading up to the eventual contract do not necessarily render the contract null and void. See West Calcasieu, Etc. v. Cajun Marine, Etc., 348 So.2d 169 (La.App. 3d Cir. 1977), writ refused; Tide Equipment Co. v. Pointe Coupee Par. Police Jury, 312 So.2d 154 (La.App. 1st Cir. 1975), writ refused.

The Public Lease Law requires that the public body shall advertise a short summary of the terms and conditions and the purpose of the proposed lease. LRS 41:1214.

The Public Bid Law expressly requires that all public work be advertised and let by contract to the lowest responsible bidder who has bid according to the contract, plans, and specifications as advertised, and that a good and solvent bond or guarantee be executed for the performance of the contract. LRS 38:2212 A, 2216. The requirement for the “advertisement”, as well as the requirement in § 2212 B that addenda to the specifications be advertised, necessarily contemplates that somewhere, if not in the advertisement, the specifications for the work be in writing and available to prospective bidders. See 64 Am.Jur.2d, “Public Works and Contracts”, §§ 50-53, 74. See also W. R. Aldrich & Co. v. Gravity Drainage District No. 1, 238 La. 190, 114 So.2d 860 (1959).

The advertisement may contain only a general description of the work and does not have to contain the detailed specifications. Where the advertisement states only that the public body solicits bids for the clearing and drainage of specified lands and refers to specifications being available, those specifications should at least be in writing and should state the purpose for which the clearing and drainage is to be done, no matter how broadly they are written.

We find then that under the circumstances of this case, the Board neither followed the Public Bid Law nor the Public Lease Law in executing the contract of lease to Etheridge. We do not say that the procedures under the two laws might not, with some ingenuity, be combined into one advertisement and written specifications to accomplish what the Board desired. Compare the effort to combine the procedures of two industrial development laws in Adams Industries, Inc. v. City of Monroe, 385 So.2d 896 (La.App. 2d Cir. 1980).

Similarly to LRS 38:2216, LRS 38:2241 provides that whenever a public body enters into an applicable public works contract, the representative of that body shall require a bond with good, solvent, and sufficient security, for the faithful performance of the contract. Etheridge estimated at the trial that it would cost at least $360 per acre to clear and drain the 500 wooded acres, according to his understanding of what was necessary to “clear and drain”. Section 2216 requires that the party to whom the public contract is awarded shall furnish a good and solvent bond for the faithful performance of his duties. Any public works contract made contrary to the provisions of the Public Bid Law shall be null and void. § 2220 subd. A.

The failure to give the required bond for a public work is not a mere formality or irregularity but is a substantial enervation of the Public Bid Law and renders the contract null and void. §§ 2216, 2220, 2241. See Construction Materials v. American Fidelity, 388 So.2d 365 (La.1980). The protection of the law, usually spoken of in terms of the interest of those who furnish labor and material for the public work, ultimately inures to the interest of the public because of the good and solvent bond or guarantee that the work will be performed at the price contracted for, and free and clear of liens or claims against the public fisc. LRS 38:2241. See Slagle-Johnson Lumber v. Landis Const. Co., 379 So.2d 479 (La.1979); State v. Miller, 169 La. 914, 126 So. 422 (1930).

The Public Lease Law should have been followed because the Board, on its own initiative, was seeking to give a farm lease and the timber on the lands in return for the clearing and draining of the land for farming purposes. The Public Works Law should have been followed, and a performance bond required, because the Board was advertising for a public work of clearing and draining its lands. The trial court’s judgment annulling the contract is correct because the Board did not substantially comply with either of the applicable laws.

ETHERIDGE’S DEMANDS AGAINST THE BOARD

It has long been recognized that one who performs in reliance upon a prohibited, but good faith, contract is entitled to recover the cost of services and materials, without overhead and profit, expended that inured to the benefit of the other contracting party. See Coleman v. Bossier City, supra, and authorities discussed therein by former Justice Tate. As Coleman explains, this recovery may be allowed under several theories (as are argued here), but the “. . . essential purpose is to afford a recovery to a person who has changed his position in reliance upon a nonenforceable contract, at least to the extent of the expenses so incurred by him which are not in excess of the value of the benefits received by the other party.” 305 So.2d at 444. Emphasis ours.

An earlier pronouncement observed:

“An enforced settlement of this kind not only does justice and equity between the parties, but also it provides the protection to the taxpayers that the statute under consideration contemplates. At the same time it is notice to contractors and fur-nishers of materials that their dealings in the future with public agencies must be conducted in accordance with the law’s provisions; otherwise the anticipated profits and attendant expenses will be denied them and their efforts will go for naught.” Smith v. Town of Vinton, 216 La. 9, 43 So.2d 18, 22 (1949), quoting Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627, 631 (1943). Emphasis ours.

Etheridge testified that after the May 2, 1979, lease was executed, he obtained authorization to begin work from the Board, he hired timber cruisers, executed the timber deed for which he received $94,300, and contracted with Givens by paying them $45,000 in advance which they would work out at $75 per hour per tractor (bulldozer) in the clearing operation. Four tractors were moved from various locations to the job site and worked, according to Ether-idge, about 10 hours a day for four days. These tractors were moved from the site after the work was enjoined. Etheridge paid a total of $366.47 for the moving of the tractors to and from the site.

Etheridge also claimed to have paid $4,750 for the rental of a truck and trailer but could not or did not explain to whom this expenditure was made or how the expenditure related to the site work. He also claims to have paid or incurred almost $6,000 in attorney fees in this action.

Certainly Etheridge should recover the expense of moving the tractors to and from the job site ($366.47) and the expense of hiring or operating the tractors on the site for four days. The Board does not contest the assertion that the site work benefitted the Board. Etheridge testified that two tractors were rented from Givens for $75 each per hour and charged against the $45,000 advanced to Givens. Etheridge testified that he “charged” [others?] $65 per hour for one of his tractors and $55 per hour for the other. Rather than extending this already protracted litigation by a remand, we shall assess the award in this area:

Givens tractors rental: $6,000
Etheridge tractors, discounted from the amount that would have been charged others: 4,320
TOTAL $10,320.

Before the contract, the Board assumed that the timber on its 16th section lands was worth about $15,000 and that this timber would be “given” to the successful bidder along with a farm lease. Etheridge hired expert timber cruisers to reveal a much greater quantity of timber. The Board now knows the exact quantity of timber and should be able to use this knowledge to the public benefit in dealing with the property. Etheridge expended $3,465 for the timber cruise. We will include this amount in the recoverable damage. Etheridge’s other attendant expenses that did not benefit the Board will not be awarded. Smith, supra; Coleman, supra.

We do not consider Etheridge’s attack on the constitutionality of the Public Lease Law because this issue was not raised in the lower court. Johnson v. Welsh, 334 So.2d 395 (La.1976); Greer v. Greer, 346 So.2d 846 (La.App. 1st Cir. 1977), writ denied. Reed and Sons Hardwood, Inc. did not appeal or answer the appeal and Etheridge does not complain about that judgment against him.

For reasons assigned, the judgment appealed, insofar as it rejected Etheridge’s demands against the Board, is in that part REVERSED and that part of the judgment is hereby rendered to award judgment in favor of Etheridge and against the School Board for $14,151.47 with legal interest from judicial demand, and in all other respects, the judgment appealed is AFFIRMED at the cost of the defendant Board, here and below.

SEXTON, Judge,

concurring.

This public body wanted to clear its “school lands” so it could farm them as soon as possible for revenue purposes. The Board let it be known that it would trade a free lease for the suitable clearing of the section.

The majority requires that the Public Bid Law and the Public Lease Law be read together and conformed to under these circumstances. I view this action of the Board as a public work rather than a lease — the lease being simply the consideration the school board “paid” for the clearing of the land. I would therefore only require that the Board adhere to the Public Bid Law. The Public Lease Law requires that the property be leased to the highest bidder and the Public Bid Law requires that the work be given to the lowest bidder. The Public Lease Law is somewhat more technical that the Public Bid Law but both have the same basic purpose, to protect the public fisc. However, in my view, a public body cannot be expected to conform to both.

I agree with all other aspects of the majority opinion and the result, being of the view that the Public Bid Law was not substantially complied with.

      . The lease required the lessee to:
      “1. Cut, pile, and burn all woodlands on 16th Section.
      “2. Dispose of all timber on said land as contractor deems necessary.
      “3. Drain lowlands suitable for farming when land can be drained into existing ditches—elevations permitting.
      “4. Cut timber and spread spoil on old ditches.”
      The lease imposed forfeiture conditions and maintenance obligations on the lessee and provided that all improvements placed on the premises would become the property of the lessor.

      . $75 X 10 hrs. X 4 days per tractor.

      . $65 -$6.50, or $58.50 per hour for one tractor. $55-$5.50, or $49.50 per hour for the other tractor.


author: NORRIS, Judge.

text:
    Clayton S. GREEN, Plaintiff-Appellee, v. FARMERS INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 14798.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.

      Bruscato & Loomis by Albert E. Loomis, III, and Sam N. Poole, Jr., Monroe, for plaintiff-appellee.
    Wilkinson & Carmody by John S. Odom, Jr., Shreveport, for defendants-appellants.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   NORRIS, Judge.

This suit for personal injuries arises out of a collision between a pulpwood truck in which plaintiff was a passenger and a tractor-trailer rig in Lincoln Parish. In a well written, comprehensive opinion, the trial court granted judgment in favor of plaintiff and against defendants in solido in the following particulars:

(1) General damages.$ 50,000.00
(2) Loss of past earnings . 24,705.93
(3) Loss of future earnings and earning capacity .83,746.54
(4) Special damages.4,789.31
TOTAL $168,241.78

Additionally, the trial court recognized the right of Intervenor, Georgia Casualty and Surety Co., to recover the actual amount of workmen’s compensation benefits and medical expenses paid to or on behalf of plaintiff in accord with the stipulation of the parties.

It is from this judgment that defendants appeal limiting their appeal to the awards made by the trial court relative to past earnings, future earnings and earning capacity.

At the time of the trial on December 17, 1980, plaintiff was seven days from being fifty-nine years old. As a result of the accident, plaintiff received serious injuries to his right shoulder, including a dislocation of the glenoid humoral joint, associated fracture of the humoral neck, concomitant and adhesive capsulitis, and a torn rotater cuff, which resulted in a twenty per cent permanent disability of that shoulder. The torn rotater cuff required surgery, and at the time of trial plaintiff continued to require an “airplane splint.”

The record, including but not limited to the medical testimony, substantiates the trial court’s findings that plaintiff was disabled rendering him unable to work from the date of the accident until at least April or May.of 1981, and permanently unable thereafter to return to the heavy manual labor which he had engaged in throughout his work career because of the permanent impairment, to his right shoulder. The trial court further found that plaintiff’s earning capacity at the time of his injuries was that of a heavy construction worker receiving union wages although at the time of the accident he was working as a pulpwood cutter making $20.00 per load of pulpwood cut and hauled. It is the earnings awards based thereon of which appellants complain.

There is extensive testimony from plaintiff at trial concerning his work record. He served in the armed services from 1941-1946 working in an area which required physical labor. Immediately following his return to civilian life, he performed heavy physical labor at Planters Peanuts in Virginia, worked on a commercial fishing boat out of Norfolk for approximately four years, installed fences at an air force base in Maine for approximately eight months, loaded heavy cow hides for Mid-Town Packing Company for approximately seven years, and engaged in heavy construction work for Stone & Webster in Boston from 1964-1971.

Subsequently, plaintiff moved to Port Arthur, Texas, where he became a member of the construction and general laborers local No. 853. His union card as well as the testimony of Mr. Raymond Scott, secretary-treasurer of local No. 853 corroborates partially plaintiff’s testimony regarding his union construction work. As a member of No. 853, plaintiff did heavy manual labor for C. A. Turner until October 29, 1976, after which he began working for Bomac clearing one hundred pound stumps until January 14, 1977. He then went to work for Stone & Webster operating a jack hammer and tamper until April 15,1977, and on April 25, 1977, he began working for Gulf Refining Company engaging in the same types of activities until June 2,1977. Following this employment, he worked for Spar Glass doing construction work until he went to Boston in early 1978. All of the aforedescribed jobs are entered on the work card which was introduced into evidence. The testimony of both the plaintiff and Scott was to the effect that union wages were paid to plaintiff for these jobs.

Additionally, plaintiff testified to his having remained in Boston for approximately seven months working as a general laborer (non union) making $6.40 per hour for a forty hour week. After leaving Boston, he returned to Port Arthur where he was employed on a non union job doing basically the same type of work. His last job in Port Arthur was with Texaco making union wages of $7.81 per hour. This employment was terminated as a result of a strike and he moved to Lincoln Parish in the Spring of 1979. After coming to Ruston, he worked in the pulpwood business for others as well as Dunnaway.

Plaintiff further testified that at the time of the accident he intended to return to Port Arthur and the construction trade because he knew more about this work as well as he made a greater salary from it. However, he did state that he had not made any contacts in Port Arthur prior to the accident because he intended to make a trip to Boston prior to his returning to Port Arthur. Additionally, he stated that he can barely read and write and that he had never held a job that did not involve manual labor.

Although plaintiff testified that he had someone file income tax returns for him during his residence in Port Arthur, a search revealed no such records. No employment data was available from Stone & Webster although requested because of the company’s record retention schedule.

After considering all of the available evidence, the trial court concluded:

The plaintiff had worked for several years as a heavy construction worker and a union member drawing union wages as a Group A laborer, the highest category of the groups of members of the union based on the length of time in the area and the work. (Tr. test., Raymond Scott, p39, LL. 18-26.) There is nothing to show that at the time he was injured he was not able to do this same kind of work he had pursued for several years, even though he was not then so employed. Thus, his earning capacity at the time of his injuries and disability was that of a heavy construction worker receiving union wages, although he was at the time working as a pulpwood cutter. A 20 percent permanent disability in the use of the right shoulder of a right-handed man would appear to render him totally and permanently disabled to engage in either of these occupations.

Finding from our review of the record that these factual findings are not clearly in error, we leave them undisturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Cadiere v. West Gibson Products, Inc., 364 So.2d 998 (La.1978); and Danna v. Howard Griffin, Inc., 388 So.2d 446 (La.App. 2nd Cir. 1980).

After arriving at its conclusions of fact, the trial court determined its award for plaintiff’s loss of past and future earning capacity utilizing the principles set forth in Folse v. Fakouri, 371 So.2d 1120 (La.1979) as follows:

The jury was entitled to determine from these and other factors in the record the probabilities and estimates of plaintiff’s ability to earn money. What plaintiff earned before and after the injury does not constitute the measure. Even if he had been unemployed at the time of the injury he is entitled to an award for impairment or diminution of earning power. And while his earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Damages should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury.
While the general rule set forth in the Civil Code is that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. La. Civil Code art. 1934(3). While this rule is stated in the Code to be applied where the contract has for its object the gratification of some intellectual enjoyment, the principle announced there may be applied by analogy to the loss of earning capacity where “damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party.” It is a rule of reason and common sense applicable to contracts and torts alike.
Because the Court of Appeal apparently disregarded the claim for loss of past earning capacity, and considering the fact that there was evidence in the record, including the expert opinion of the actuary, which would support the jury award, we find no abuse of the “much discretion” which “must be left to the . .. jury.” in its award for loss of past earnings and past earning capacity. Schexnayder v. Carpenter, 346 So.2d 196 (La.1977); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).
Logically, a like result should apply to the claim of loss of future earning capacity. The Court of Appeal reduced this award from $100,000 to $58,500. The reduction was based upon the rationale applied to the reduction of the award for loss of past earnings. As noted in the discussion relating to the loss of past earnings and earning capacity, the Court of Appeal based the reduction there on the amount lost by calculating altogether on the pecuniary loss, without considering the contention that there was also a loss of earning capacity, disregarding the expert testimony that bus drivers earned at least $10,000 per annum.
Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.

We have recently considered these principles in Hill v. Sills, et al., 404 So.2d 1323 (La.App.1981) wherein we stated:

It is now an established legal proposition in this state that a successful claimant is not only entitled to recover for his actual wage or income loss, but also for the effect of his disability on his capacity to earn. Even if unemployed at the time of injury, he may be entitled to an award for impairment of earning power. Such damages are calculated on the injured person’s ability to earn money rather than on what he actually earned before the injury. The rationale underlying this jurisprudential rule is that the injury inflicted may have deprived the claimant of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.

In an effort to help the lower court arrive at awards for loss of past earning capacity and loss of future earning capacity, both plaintiff and defendants offered the testimony of experts.

Dr. Charles 0. Bettinger, III, director for the Center for Business Research and Economic Research at Northeast Louisiana University was accepted by the court as an expert in the field of projecting past and future lost wages. He testified that plaintiff had a work life expectancy of 8.7 years at the time of the accident and 7.3 years at the time of trial. Bettinger utilized the net rate of wage increase method keeping wages and interest rates in balance with one another because both are affected by inflation rates. He used a discount factor of six percent and arrived at a net rate of increase of slightly under one and one-half percent per year compounded annually. Using his method and the union contract figures of $8.81 per hour from the date of the accident until April 1, 1980 and $9.41 per hour thereafter as supplied by Scott, Bettinger computed plaintiff’s loss of past earning capacity to be $26,800 from date of accident to date of trial.

To arrive at plaintiff’s loss of future earning capacity Bettinger used the union contract hourly figure of $9.41 per hour X a 40 hour work week X 52 weeks X 7.3 years of work life expectancy to arrive at a figure of $149,420.00, the amount plaintiff would have earned under the union contract as a Class A union laborer. From this amount he subtracted $51,432.00 which was the minimum wage plaintiff would have earned from March 2, 1981 throughout his remaining work life expectancy. His final opinion as to loss of future earning impairment was $97,988.00. Bettinger- did not deduct any workmen’s compensation benefits or income taxes from his figures. He used a discount rate of six percent and an annual wage increase of seven and one-half percent. He also incorporated into his computations such fringe benefits as hospitalization, pension and training programs.

Dr. Jerry M. Hood, defendant’s expert, is associate professor of Finance at Northeast Louisiana University and was also accepted by the court as an expert witness in the field of lost wages and future wages. His experience as an expert witness in court was not nearly as extensive as that of Dr. Bettinger.

Dr. Hood’s approach was not drastically different from Dr. Bettinger’s. However, he used a 7.9 year work life expectancy but the record is not abundantly clear whether this ran from the date of accident or date of trial. He used a 37.1 hour work week and 52 weeks a year. Hood testified that the 37.1 hour work week represented an average work week for a laborer in construction. Hood used the union contract figures of $8.81 per hour from July 31, 1979 through April 1, 1980 and the $9.41 figure thereafter. In computing loss of past earning capacity he deducted both workmen’s compensation benefits and income taxes. In computing loss of future earning capacity he only deducted income taxes. The amount of his deduction for income taxes was admittedly estimated. His computation for loss of past earning capacity from date of accident to date of trial was $17,-448.89. His estimate of loss of future earning capacity was $119,715.00 less what plaintiff could earn via minimum wage or $70,229.18. Without deducting income, taxes his figures would have been $20,548.89 plus the amount of workmen’s compensation benefits and $89,189.00 respectively.

Hood’s discount factor was eight percent and his inflation also eight percent. So in essence they cancelled each other.

The trial judge did not adopt either expert’s computations but instead substituted his own detailed computations. He used Dr. Hood’s average hourly work week for laborers of 37.1 hours stating that this figure appeared more realistic. Then using the hourly rate of $8.81 from July 31, 1979 to April 1, 1980 and the $9.41 hourly wage thereafter to date of trial he computed loss of past earning capacity to be $24,705.31. He made no deductions from this figure since plaintiff was not otherwise employed because he was unable to work during this period of time. He also noted that by recognizing the intervenor’s claim, compensation benefits would be deducted from any award granted to plaintiff.

The trial court then used Dr. Bettinger’s 7.3 years of work life expectancy from date of trial and the $9.41 hourly rate X the 37.1 hour work week X 52 weeks per year to compute the figure of $132,522.54 as plaintiff’s maximum earning capacity for the remainder of his work life. From this sum he subtracted $48,776.00 which was the amount plaintiff would have earned at minimum wage for seven years. The trial judge calculated that 0.3 years from the date of trial could carry plaintiff to the anticipated date he was expected to reach his maximum improvement and could begin earning minimum wages. The trial court’s final computation for plaintiff’s lost future earning capacity was $83,746.54.

The trial court’s formula did not use a discount factor or an inflation factor. However, according to Dr. Hood these factors were the same and effectively offset each other. Likewise, the trial court did not use Dr. Bettinger’s net rate wage increase of one and one-half percent annually. The trial court also did not take into consideration possible overtime, fringe benefits or the possibility that plaintiff on some jobs might receive more per hour than the base union scale.

Basically, appellants’ complaints concern whether or not plaintiff has sufficiently proven his claim for past and future lost earning capacity. They contend that the trial court abused its discretion in its computation of the disputed awards.

The trial court made a specific finding of fact that plaintiff’s testimony regarding his work experience was credible. This was partially corroborated by the testimony of Raymond Scott. The determination of credibility is a function allocated to the finder of fact at trial because of its better capacity to evaluate a live witness compared with the appellate court’s access only to a cold record. Canter v. Koehring, 283 So.2d 716 (La.1973); Williams v. Winn-Dixie of Louisiana, Inc., 404 So.2d 299 (La.App. 1st Cir. 1981). Since our review of the record is convincing that these factual findings are not clearly in error we leave them undisturbed. Arceneaux v. Domingue, supra.

In further support of our acceptance of the trial court’s finding relative to this issue, we note that although it is better to introduce corroborating testimony, claims for lost wages have been proven in the past by plaintiff’s own reasonable testimony, which was accepted as truthful. See Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (La.1971); Davis v. Bowman, 346 So.2d 225 (La.App. 4th Cir. 1977); Bize v. Boyer, 402 So.2d 110 (La.App. 3rd Cir. 1981).

In conclusion and in addressing the issue of the excessiveness of the trial court’s award, we note the mandate of the Supreme Court in Cheatham v. City of New Orleans, 378 So.2d 369 (La.1980) wherein it is stated:

The law on the issue of appellate review of damages is contained in La.Const. of 1974, art. V, § 10(B)8 and La.Civ.Code art. 1934(3).9 This Court has consistently held that Article 1934(3) does not violate the constitutional provisions of La.Const. of 1974, art. V, § 10. Revon v. American Guaranty and Liability Insurance Company, 296 So.2d 257 (La.1974). In interpreting Article 1934(3) this Court held in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976);
“before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award.... Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.... It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” (citations omitted).

In Robinson v. Graves, 343 So.2d 147, 149 (La.1977), the court states:

Future loss of earnings cannot be calculated with absolute certainty; this court has recognized that damages for the loss of future earnings are somewhat speculative in character. See e.g., Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968). Absent an abuse of discretion by the trier of fact, however, this degree of uncertainty does not permit the reviewing court to substitute its judgment for that of the trial court merely because the reviewing court believes that a different award would have been more appropriate. As this court stated in Bitoun v. Landry, supra [302 So.2d 278 (La.1974)]:
“.... The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, either up or down.” 302 So.2d at 279.

In Schexnayder v. Carpenter, 346 So.2d 196, 198 (La.1977), the court stated:

“Since the jury does have, under the law, much discretion in fixing damages, the appropriate procedure for testing whether the jury abused its discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury.”

It is also noted that in cases of this nature there is no “right” formula for establishing the loss. While net wages are sometimes used, the use of gross income is also appropriate. See Lute v. City of Lake Charles, et al., 394 So.2d 736 (La.App. 3rd Cir. 1981). We recently in the case of Hunter v. Office of Health Services, et al., 385 So.2d 928 (La.App. 2nd Cir. 1980) allowed the use of gross income in computing income in order to determine a loss of support award.

Therefore, adhering to the above well established legal principles, realizing that damages of the nature complained of in this appeal cannot be calculated with certainty but are somewhat speculative in nature, and finally recognizing that there is no “absolutely right” formula for establishing such a loss, we cannot say that the trial court abused the “much discretion” vested in it in its awards of loss of past and future earnings and earning capacity. Admittedly, the instant awards are in the higher range of the lower court’s discretion, but we find that they do not constitute an abuse of that discretion.

Accordingly, the judgment of the lower court is affirmed in its entirety. Appellants are cast for the costs of this appeal.

AFFIRMED.

      . Raymond Scott testified that he knew and recognized plaintiff who had worked out of his union and had been a member. He further testified that the present union contract in effect for his local afforded all members of the union its benefits. Pursuant to the contract on July 31, 1979, local No. 853 union members were drawing a base rate of $8.81 per hour as of April 1, 1980. He further testified that plaintiff was classified as a Group A Laborer with local 853 and stated that this was the highest laborer classification. He further indicated that the union conducted tests to determine if a worker was in fact a Class A Laborer. The $9.41 base rate was in effect at the time of trial and was the lowest rate a union member could receive and there were premiums for other types of construction work such as tamping or working with concrete.

      . Plaintiff was on his first day on the job with Dunnaway when the accident that produced his injuries and resulting disability occurred.

      . It should be pointed out that both experts also computed loss of past earning capacity and loss of future earning capacity based on plaintiffs wages as a pulpwood cutter. However, for the sake of brevity, we do not choose to incorporate these figures into this opinion.

      . Footnotes 8 and 9 referred to in Cheatham, supra, read as follows:
      8 La.Const. of 1974, art. V, § 10(B) provides the scope of review for appellate courts as follows: “Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.” 9 Louisiana Civil Code Article 1934(3) provides in pertinent part: “Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party...
      In the assessment of the damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none....” (Emphasis added).