author: MARCUS, Justice . FORET, Justice Ad Hoc,

text:
    STATE of Louisiana v. Steven L. GREGORY.
    No. 81-K-0797.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Travis M. Holley, Bastrop, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy Adkins, Dist. Atty., Joseph A. Cusimano, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   MARCUS, Justice .

Steven L. Gregory was charged by bill of information with operating a vehicle while intoxicated, second offense, in violation of La.R.S. 14:98. After a bench trial, defendant was found guilty as charged. Prior to sentencing, defendant’s application for judicial review under our supervisory jurisdiction was granted. Defendant assigns three errors for reversal of his conviction. Finding reversible error in one of the assigned errors, we need not consider the others.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in admitting in evidence the results of a Photo-Electric Intoximeter (PEI) test without requiring the state to show that the individuals who performed the maintenance checks on the PEI unit used to test him were certified by the Department of Public Safety in accordance with its rules. He argues that improper admission of those results constituted reversible error.

At trial, Trooper B. L. Brossette testified that while proceeding on La. Highway 2 in Union Parish on August 31, 1980, she encountered two motorcycles coming from the opposite direction. Noticing that the motorcycles were weaving in their lane, she turned around and proceeded to follow them. The motorcycles continued to weave on the road and the cyclists were passing a can of beer between them. Trooper Bros-sette then stopped the cyclists, one of whom was defendant. Defendant was described as wearing only a pair of cut-offs, his eyes were blurry and very red, he was in a “happy-go-lucky” frame of mind, there was an odor of alcohol about his person, and he was swaying on his feet. The trooper placed defendant under arrest for DWI, read him his rights, and “asked him to come in and take a test.” Defendant was transported in the trooper’s vehicle to the sheriff’s office where he was read the “rights form” which was signed by him. Defendant was then administered the PEI test by E. T. Rushing, Chief of Police of the Town of Farmerville.

During the direct examination of Chief Rushing, the state introduced a copy of Chief Rushing’s certificate to conduct breath test analysis, the manufacturer’s certificate of the lot of ampuls used as to its standard of quality in reference to the chemical contents and tolerance, the machine recertification form for the instrument located in the sheriff’s office and the certification that the ampul lot numbers used were spot checked for performance. When the state sought to introduce the PEI check list showing the results of defendant’s test, defendant objected. The trial judge admitted the results subject to defendant’s objection reserving his ruling thereon. The PEI test indicated that defendant’s blood contained .11 per cent alcohol by weight, a percentage sufficient to give rise to the statutory presumption that defendant was under the influence of alcoholic beverages. La.R.S. 32:662(A)(l)(c). The trial judge subsequently overruled defendant’s objection but stated that he found defendant guilty based upon the “behavior characteristics” of defendant as observed by the arresting officer and the officer administering the test without considering the results of the PEI test.

In order for the state to avail itself of the statutory presumption of a defendant’s intoxication arising from a chemical analysis of his blood, La.R.S. 32:662, it must show (1) that the state has officially promulgated detailed methods, procedures and techniques to insure the integrity and reliability of the chemical tests including provisions for repair, maintenance, inspection, cleaning, chemical accuracy, and certification; and (2) that the state has strictly complied with the officially promulgated methods, procedures and techniques in the chemical analysis offered as evidence in the case on trial. State v. Goetz, 374 So.2d 1219 (La.1979); State v. Graham, 360 So.2d 853 (La.1978); State v. Jones, 316 So.2d 100 (La.1975). Under La.R.S. 32:663, the Department of Public Safety is authorized to approve satisfactory techniques or methods for chemical analyses of the person’s blood, urine, breath or other bodily substance, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the department. In the Breath and Blood Alcohol Analysis Methods and Techniques established by the Department of Public Safety, Rule 4d requires: “Maintenance checks will be performed on a routine basis at least once every four months, by the Louisiana State Police Crime Laboratory, Applied Technology Unit.” (The rule then lists particular items to be checked.) 4 La.Reg. 391 (1978). Rule 8 provides in part: “Maintenance: maintenance and/or repair work will be performed by Breath Analysis Inspectors working for the Applied Technology Unit of the Louisiana State Police Crime Laboratory, who are certified by the Louisiana Department of Public Safety to perform such.” (Emphasis added.)

In State v. Morrison, 392 So.2d 1037 (La.1980), this court held that where the state failed to offer any proof of the qualifications of the maintenance technicians, the trial judge erred in admitting the results of an Auto-Intoximeter test. We held that even though the trial judge stated that he considered the other evidence sufficient to find defendant guilty, we could not “speculate as to what decision the trier of fact would have or should have made” absent the inadmissible evidence. Considering the judgment of guilty so affected (or tainted) by the improper admission of the test results, we found reversible error.

In the instant case, under facts similar to those in Morrison, the state failed to produce evidence of the qualifications of the maintenance technicians who performed the required maintenance checks on the instrument used to test defendant in accordance with the rules promulgated by the Department of Public Safety. Despite the statement by the trial judge that he found defendant guilty based on evidence other than the results of the PEI test, the improper admission of those results so affected the due process rights of the accused as to constitute reversible error. La. Code Crim.P. art. 921.

DECREE

For the reasons assigned, the conviction is reversed and the case is remanded to the district court for a new trial.

WATSON, J., dissents.

FORET, J. ad hoc, dissents in part and concurs in part and assigns reasons.

FORET, Justice Ad Hoc,

concurring.

I concur in the reversal of the conviction, but I dissent from the remand to the trial court for a new trial. I am of the opinion that the case against the defendant should be dismissed.

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

      . La.R.S. 32:662(A)(l)(c) provides that, upon the trial of any criminal action arising out of acts alleged to have been committed by a person while driving under the influence of alcoholic beverages, the amount of alcohol in the person’s blood at the time alleged as shown by chemical analysis of the person’s blood shall give rise to the following presumption: If there was at that time 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages.

      . It was noted in Morrison that while much of the jurisprudence concerned requirements for admissibility of test results of the PEI, the principles underlying the pronouncements were concerned with the reliability of the findings and were equally applicable to the Auto-Intox-imeter, as were the regulations of the department.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Michael JEFFCOAT.
    No. 81-K-0811.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Clifford R. Strider, III, Louise Korns, Asst. Dist. Attys., for plaintiff-relator.
    James C. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-respondent.
   DENNIS, Justice.

This is a review of a trial court order suppressing evidence seized by police officers under a search warrant. We granted the state’s application for a writ and now reverse the trial court’s ruling. The issue presented is whether the warrant was based on probable cause for its issuance established by facts presented to the magistrate by a search warrant application which, in pertinent part, provided:

“On December 1, 1980 Officer Spears reports recieveing [sic] information from Mr. Kenneth Johansen. Mr. Johansen advised Officer Spears that he was the victim of a residence burglary on November 20, 1980. Mr. Johansen stated that the listed property was taken from his residence without his permission.
“Mr. Johansen further stated that he was told by a subject that his property was located in the residence of Mike Jeffcoat W/M about 25 yrs. The informer further stated that he had seen some property in the residence and had been told by Jeff-coat that the property was stolen. The informer stated that when he heard of Mr. Johansen’s burglary he thought property might be his. Mr. Johansen stated that after talking to the informer he called the police again.
“Upon Officer Spears’ arrival, he met with Mr. Johansen and received the information above. Spears at this time proceeded to the location of the informer. At that location Spears met with a subject and learned the following information:
“On November 23 the informer and Mike Jeffcoat were in Jeff coat’s residence 13039 River Road, N.O.La. smoking marijuana. The informer stated that he mentioned to Jeffcoat that he liked the T.V. he, Jeffcoat, had in the house. At this time Jeffcoat advised him that the T.V. was hot and that he had other hot stuff in the house. The informer stated that Jeffcoat showed him a stereo set, Sony with speakers. Jeffcoat then went into the bedroom of the house and returned to the living room with two “old time pistols” cap and ball type. Jeffcoat stated that the pistols were taken in a burglary in Plaquemines Parish. The informer stated that he observed a “rug” on the wall behind the sofa. The informer stated that he noticed the “rug” because it had some deer drinking from a stream, and trees on it. The informer advised Spears that Jeffcoat had a lot of good property and could not understand how he got it because he, Jeffcoat does not work. After talking to the informer Spears returned to Mr. Johansen’s residence.
“At the Johansen residence Spears spoke to Mr. Johansen about a more detailed description of the property stolen. Mr. Johansen provided Spears with a complete list of the stolen property. This list included a large Canadian Tapestry with a wooded background and deer drinking from a stream. The list also included a Sony Stereo set with 2 speakers. Mr. Johansen stated that he was not missing a T.V. set or pistols.
“Spears at this time proceeded to the Fourth District station where a check was made via N.C.I.C. and learned that Mike Jeffcoat had been arrest [sic] in N.O. for 1 misd. no conviction, and in J.P. for 4 city charges, 2 feleny [sic] and 17 misd., unknown if any convictions.
“Spears at this time contacted the Plaquemines Parish Sheriffs’ Office. It was learned from Officer Verdi that a residence in the Parish was broken into and a T.V. set and 2 ball and cap pistols were taken. Complete list of property stolen also attached.”

The facts necessary to show probable cause may be established by hearsay evidence. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); State v. Paciera, 290 So.2d 681 (La.1974). The Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), laid down the test by which information given the affiant by an unidentified informant could be considered by the magistrate in determining if there was probable cause upon which a search warrant should issue. “[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were there where he claimed they were and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed .. . was ‘credible’ or his information ‘reliable.’ ” 378 U.S. at 114—15, 84 S.Ct. at 1514, 12 L.Ed.2d at 729.

A careful analysis of Aguilar reveals that its two-part test is designed to perform different functions. The first part is designed to insure that the informant obtained his information by personal observation, or in some other dependable manner rather than through mere rumor. This “basis of knowledge” test is a corollary of the Fourth Amendment’s requirement that the magistrate, and not the police officer-affiant or his informant, shall weigh the facts and decide whether they establish probable cause. See Spinelli v. United States, infra, 393 U.S. at 424, 89 S.Ct. at 584, 21 L.Ed.2d at 648 (White, J., concurring); State v. Cann, 392 So.2d 381, 384 (La.) (concurring opinion); Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741, 751-52 (1974).

The second prong of Aguilar’s two-prong test is aimed at determining the veracity of the source of the hearsay information. Aguilar held that this test could be satisfied in either of two ways: (1) the affidavit may recite facts from which the magistrate could conclude that the informant is credible, or (2) it may recite facts from which the magistrate could conclude that the informant’s information is credible. The “veracity prong” of Aguilar’s two-part test is designed to perform the same function that the oath and the magistrate’s direct observation serve in evaluating the truthfulness of the affiant. As the oath serves as a hedge against issuing an affidavit based on false allegations, so too does the requirement that there be included in the affidavit facts which indicate a reason for believing in the veracity of the source of the information. Where the internal recitation about the informant or about the circumstances under which the information was furnished fail to establish that the informant was “credible” or that his information was otherwise “reliable,” then the independent observations made by the officers-affiants themselves might be looked to by way of verification. See Spinelli v. United States, supra 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; State v. Paciera, supra; State v. Cann, supra; Moylan, supra, at 750-51.

The affidavit in this case is sufficient as measured by each prong of the Aguilar test.

It passes the “basis of knowledge” test because the magistrate was informed of the underlying circumstances from which the informant concluded that property stolen from Johansen’s house was located in defendant Jeff coat’s residence at 13039 River Road. The informant claimed to have seen the property which fit the description of some of the items stolen while visiting the Jeffcoat residence. This provided an adequate basis to assure that the informant, if credible, obtained his information by personal observation, and not through mere rumor.

The affidavit also passes the “veracity” test because the affidavit recited circumstances under which the information was furnished, including partial verification of the informant’s story by the officer-affi-ant’s independent investigation, from which the magistrate reasonably could conclude that the informant was credible or that his information was reliable. The informant described the articles he had seen in the Jeffcoat residence, some of which were unusual, such as the deer-scene rug and the cap-and-ball type pistols. The affiant officer’s independent investigation verified that the informant’s description of the articles fit that of property recently taken in burglaries of the Johansen house and a Plaque-mines Parish residence. The informant stated that Jeffcoat informed him the property had been stolen and that the pistols were taken in a Plaquemines Parish burglary. This admission by Jeffcoat appeared plausible because it was unlikely the informant would furnish information regarding a crime in which he was involved and unlikely that he would have any source of knowledge, other than Jeffcoat, that the items were stolen. Altogether these facts included in the affidavit provided a reason for believing in the veracity of the source of information.

The ruling of the trial court granting the motion to suppress is reversed and the case is remanded for further proceedings.

SUPPRESSION OF EVIDENCE REVERSED.

       Judges Frederick S. Ellis, Morris A. Lottinger, Jr. and Elven E. Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Watson and Lemmon.


author: STOKER, Justice Ad Hoc.

text:
    STATE of Louisiana v. Glenn C. LEMOINE.
    No. 81-K-0889.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      Jim W. Wiley, Winnfield, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Joseph P. Beck II, Dist. Atty., George N. Wampler, Asst. Dist. Atty., for plaintiff-respondent.
   STOKER, Justice Ad Hoc.

The defendant, Glenn Lemoine, was charged with reckless operation of a vehicle, in violation of LSA-R.S. 14:99. On February 18, 1981, the defendant was found guilty of that offense after a bench trial. The defendant was sentenced to 90 days in the parish prison and fined $200. On April 7, 1981, this court granted defendant’s application for writs of certiorari, prohibition, mandamus, supervisory and review and for a stay order and ordered defendant released on bail pending review of these writs, 397 So.2d 1368.

The following facts were adduced at trial. On October 27, 1980, at approximately 1:00 PM, a red Chevrolet pick-up truck with “mag” wheels and a loud muffler, allegedly owned and driven by the defendant, traveled through the city limits of Colfax on Highway 158 at a “high rate of speed.” People were setting up tents for the Pecan Festival and it was raining.

Officer Swafford, a Deputy Marshal for the Town of Colfax, observed the subject vehicle from a sidewalk in front of a True Value store. It is unclear how far away Officer Swafford was from the vehicle. He stated that the distance was the length of the court room and beyond, possibly to the other side of the street on which the court house was located. There were no pedestrians or vehicles on the highway when the subject vehicle traveled through the city at what Officer Swafford called “a high rate of speed.” The posted speed limit was not established. When Officer Swafford was asked what the posted speed limit was, he replied, “I think 25 miles per hour.” Although there is no estimation in the record as to how fast this vehicle was traveling, Officer Swafford was of the opinion that the truck was traveling in excess of 25 miles per hour.

Officer Swafford was apparently on foot and the defendant was not apprehended at that time. Officer Swafford obtained an arrest warrant for the defendant. He stated he knew the defendant personally and was positive that the defendant was driving the vehicle. The arrest warrant was executed by Deputy Briggs a few days later.

ASSIGNMENT OF ERROR NO. 1

Defendant chose not to brief assignment of error number one. Therefore, it is considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

ASSIGNMENT OF ERROR NO. 2

The defense argues that Officer Swaf-ford’s qualifications to give an estimation of speed were not established in the trial court.

When the prosecutor first asked Swaf-ford to estimate defendant’s speed on the day in question, counsel objected that the State had not laid a proper foundation for the officer’s opinion. In response to the prosecutor’s questions, the officer testified that he had been employed as a deputy marshal for approximately eight years, and had issued other tickets for reckless and careless operation of a vehicle, not all of them based solely on radar unit indications. Over counsel’s objection, the prosecutor then obtained Swafford’s opinion that defendant had traveled at a high rate of speed in excess of the posted limit. Although asked by the prosecutor, Swafford never estimated defendant’s speed in miles per hour.

Defense counsel argues that the State’s foundation was not sufficient to qualify the officer as an expert by virtue of special training and expertise under LSA-R.S. 15:464. He therefore concludes that the officer’s opinion testimony should have been excluded.

The State’s foundation established at the least that Swafford had served as a police officer for eight years and had dealt with traffic violations in the past. In State v. Stewart, 357 So.2d 1111 (La.1978), this court upheld the testimony of an officer concerning the rate of speed of a vehicle. It is not necessary that a witness giving testimony as to the speed of an automobile be qualified as an expert. In Stewart this court held that a police officer with fifteen months experience could infer on the basis of personal observations whether the defendant’s vehicle was proceeding at a lawful rate of speed. We would not characterize the foundation laid by the State as a model. Perhaps it was barely sufficient. Nevertheless, we do not consider that the meager foundation laid was so inadequate that permitting Deputy Swafford to express his opinion was error.

Counsel concedes that Stewart appears to allow testimony from experienced police officers with regard to the speed of moving vehicles. He argues, however, that a factor in the present ease distinguishing it from Stewart is that Swafford’s vantage point was from a sidewalk at an uncertain distance from the moving vehicle instead of directly behind it. The distinction urged appears to go only to the weight accorded the officer’s opinion, not to its admissibility under Stewart.

This assignmént lacks merit.

ASSIGNMENT OF ERROR NO. 3

The defense argues that the trial court erred in convicting the defendant of reckless operation of a vehicle based solely upon evidence of speeding and particularly in the absence of any clear evidence of the actual speed involved.

Reckless operation of a vehicle is defined by LSA-R.S. 14:99 and 14:12. These two provisions of our Criminal Code were construed in State ex rel Palermo v. Hawsey, 377 So.2d 338 (La.1979), where this court said:

“R.S. 14:99 provides that reckless operation ‘. . . is the operation of any .. . vehicle ... in a criminally negligent or reckless manner,’ and R.S. 14:12 defines criminal negligence as conduct ‘amount[ing] to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.’ Criminal negligence is thus an essential element of the offense under R.S. 14:99, City of Shreveport v. Baylock, 236 La. 133, 107 So.2d 419 (1958)...".

The principal issue in this case is whether the state proved beyond a reasonable doubt that defendant was criminally negligent in driving his vehicle at a high rate of speed under the circumstances.

A convicted defendant’s attack upon the sufficiency of the State’s evidence to prove his guilt is presently judged by determining whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Morgan, 389 So.2d 364 (La.1980); State v. Landry, 381 So.2d 462 (La.1980).

It was raining and the area itself was crowded with people setting up tents for the Pecan Festival. However, there were neither pedestrians nor vehicles on the highway itself while the defendant traveled it. Several persons lined the side of the road as they put up the festival tents. The defendant was heading out of town on a clear highway. There is no indication exactly how fast the subject’s vehicle was moving, although if Swafford’s opinion were believed, the car was traveling in excess of 25 miles per hour.

In State ex rel. Palermo v. Hawsey, supra, this court reversed a reckless operation of a vehicle conviction where the defendant was spinning his wheels while accelerating out of a parking lot. This court made the following comment in reversing the conviction:

“But we find no evidence in the record that defendant was speeding, weaving in his lane, crossing the center line, or giving any other indication he was operating his vehicle recklessly or in violation of any other traffic provision.”

Defendant suggests that this language is significant in urging that he was not guilty of careless and reckless driving. The description of conduct listed in the comment should not be taken as an exclusive listing of the modes by which one may violate LSA-R.S. 14:99. Certainly speed under certain circumstances might constitute careless and reckless driving. Speed alone, however, should not necessarily be determinative. No doubt circumstances may exist in which one would be careless and reckless to drive within the posted speed limit.

The trial judge commented in explanation of why he found defendant guilty. He indicated he thought circumstances existed which made it a violation of LSA-R.S. 14:99 for defendant to drive at an “excessive rate of speed.” The pertinent portion of his comment is as follows:

“BY THE COURT: * * * This individual was charged with reckless driving on October 27, 1980, during the Pecan Festival. There were tents being placed over next to the railroad track. Of course, the testimony of Mr. Swafford stated that there were people over there. They were putting up tents and during the Pecan Festival is a very crowded time. People in town that’s . . . it’s really too big of a crowd here. With the fact that he was driving in an excessive rate of speed on that day where people were around putting up tents and moving back and forth either during the Pecan Festival or preparing for it would . . . the State certainly made out a case of reckless driving.”

The question, it seems to us, is whether the testimony in the record establishes the existence of circumstances of such a nature that traveling at any speed in excess of 25 miles per hour would constitute criminal negligence. The essential question is whether the record reveals evidence from which the trial court could make a finding of violation of LSA-R.S. 14:99 under the test of Jackson v. Virginia, supra; State v. Morgan, supra; and State v. Landry, supra.

We have reviewed the record and do not feel that it discloses the combination of circumstances necessary to show that the defendant by driving at an unspecified speed, thought to be in excess of the posted speed limit, committed a criminally negligent act. Officer Swafford could not estimate defendant’s speed. He could only state that he thought the posted speed limit was 25 miles per hour and that the defendant was exceeding that speed. Officer Swafford testified that there were neither persons nor vehicles in the street and that defendant did not almost run over anybody or any vehicles because the highway was clear. He further testified that people were setting up tents along the roadside in preparation of the Pecan Festival. This testimony is insufficient to establish that defendant’s conduct amounted to a gross deviation of the standard of care imposed by LSA-R.S. 14:12.

DECREE

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the writs of certiorari, prohibition, mandamus, supervisory and review herein be made peremptory and that there be judgment in favor of relator’s Glenn G. Lemoine, reversing defendant’s conviction and sentence and dismissing the charge against him.

REVERSED.

WATSON, J., dissents.

       Judges J. Burton Foret, Jimmy M. Stoker, and P. J. Laborde, of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, and Jack C. Watson.

      . LSA-R.S. 14:99 reads as follows:
      “Reckless operation of a vehicle is the operation of any motor vehicle, aircraft, vessel, or other means of conveyance in a criminally negligent or reckless manner.
      “Whoever commits the crime of reckless operation of a vehicle shall be fined not more than two hundred dollars, or imprisoned for not more than ninety days, or both.
      “On a second or subsequent conviction the offender shall be fined not less than twenty-five nor more than five hundred dollars, or imprisoned for not less than ten days nor more than six months, or both.”

      . Criminal negligence is defined by the Criminal Code in LSA-R.S. 14:12 as follows:
      “Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. David MALONE.
    No. 81-K-0308.
    Supreme Court of Louisiana.
    Sept. 8, 1981.

      J. Randolph Smith of Guerriero, Smith, Hingle & Anzalone, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Kenneth A. Rains, Allen Harvey, Asst. Dist. Attys., for plaintiff-respondent.
   CALOGERO, Justice.

David Malone was charged by bill of information filed by the Morehouse Parish District Attorney’s Office with the knowing and intentional manufacture and production of marijuana in violation of R.S. 40:967, an offense which allegedly occurred on August 14, 1980. Defendant filed motions to suppress physical evidence and in-culpatory statements. Following a hearing on these motions, the trial judge denied both. We granted defendant’s application to review those rulings. 396 So.2d 935 (La.1981).

In May 1976 defendant entered a guilty plea to a reduced charge of attempted possession of cocaine and received a two year suspended sentence. The trial judge placed defendant on probation for a period of five years. One of the conditions of probation was that defendant “permit the probation officer to visit him at his home or elsewhere at the option of the officer.” John Laird, defendant’s probation officer, testified at the hearing on the motions to suppress concerning the circumstances which culminated in discovery of the growing marijuana plants and the arrest of defendant. Mr. Laird was making his first visit at defendant’s new residence. Receiving no response to his knock, Laird returned to his automobile which was parked in defendant’s driveway. As he did, he noticed a garden hose stretching from defendant’s house into a wooded area. This situation aroused Laird’s curiosity because he knew that there was considerable cultivation of “contraband” being done in the area. Consequently, he followed the hose into the wooded area where he discovered what appeared to be growing marijuana.

Laird went to the nearby residence of an acquaintance from where he telephoned the Richland Parish Sheriff’s Office. The sheriff informed him that defendant’s residence was in Morehouse Parish and said that he would summon a police unit from that parish. Mr. Laird returned to defendant’s house, observed that the hose had been rolled up, and again knocked on the door. Defendant answered the door and requested that Mr. Laird wait a minute so that he could dry himself. Laird refused and asked to be let in immediately. Defendant complied. Once inside, Laird arrested defendant for violation of his probation.

Sheriff Foster Jones of Richland Parish, and shortly thereafter two deputies from Morehouse Parish, arrived. The group proceeded to the wooded area where defendant was given the Miranda rights and asked whether the marijuana was his. Defendant responded that he was growing the marijuana for a friend. Upon further questioning, defendant admitted that he had harvested one or two plants for himself. At the marijuana patch, defendant was informed by a deputy that he was under arrest for cultivating marijuana.

The state stipulated that no search warrant or arrest warrant was issued before the search and arrest took place. Consequently we must decide the validity of the warrantless search and arrest to determine whether the evidence and statements are admissible.

It is immaterial that the ownership of the wooded area was not established during the hearing on the motions to suppress. Even if defendant does not own the property, under La.Const. art. I, § 5, he may assert that the seizure is unlawful simply if he is adversely affected by it. State v. Green, 376 So.2d 1249 (La.1979).

As a general constitutional rule, warrantless searches are per se unreasonable under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Had defendant not been on probation, we would have no difficulty holding that the Fourth Amendment right to be free from unreasonable searches had been violated. However, defendant was on probation and that status requires that we carefully consider whether and to what extent defendant, as a probationer, had a reasonable expectation of privacy as relates to the type of intrusion involved here. In State v. Patrick, 381 So.2d 501 (La.1980), we noted that warrantless searches of a parolee’s person and residence by a parole officer have been upheld where the search was reasonable, even though less than probable cause was shown, citing cases from the United States Courts of Appeals for the Second and Ninth Circuits: United States ex rel Santos v. New York State Bd. of Par., 441 F.2d 1216, 1218 (2nd Cir. 1971), cert. den. 404 U.S. 1025, 92 S.Ct. 692, 30 L.Ed.2d 676 (1972); Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975), cert. den. 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975).

In Santos, supra, the court considered a warrantless search of a parolee’s apartment when the parolee was not at home. The police had received a tip that the parolee was dealing in stolen property and relayed this information to the parole officer. The parole officer and the police went to the parolee’s apartment and were admitted by his landlady. The policeman did not assist in the search which resulted in the discovery of stolen goods. In holding that the evidence need not be suppressed, the court reasoned that a parolee is released on the assumption that he will meet the conditions of his parole, one of which is to refrain from violating the law, and that the parole officer is charged with the duty of enforcing the conditions of parole. According to the court, “[t]o hold that evidence obtained by a parole officer in the course of carrying out this duty cannot be utilized in a subsequent prosecution would unduly immunize parolees from conviction.” 441 F.2d at 1218.

In Latta, supra, the court was faced with a slightly different situation in that the parolee had already been arrested when the search took place. The parole officer arrested the parolee at the home of an acquaintance and approximately six hours later searched the parolee’s home which was 30 miles away from the location of the arrest. Two police officers accompanied the parole officer, but the court noted that there was nothing in the record to indicate that the police initiated the search. The court observed that the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), had rejected the theory that parolees are in the constructive custody of the state. Nevertheless, the court found that the search was valid, stating that “[t]he purposes of the parole system give the parole authorities a special and unique interest in invading the privacy of parolees under their supervision.” 521 F.2d at 249. The court continued that the parolees’ “reasonable expectations of privacy are less than those of other citizens.” 521 F.2d at 250. The court then stated that a search is permissible when the parole officer reasonably believes that one is necessary, and that the decision may be made on less than probable cause. The court would even allow a search based upon a “hunch” arising from what the parole officer had learned or observed about the behavior and attitudes of the parolee.

Turning to the requirement of a warrant, the court held that a warrant is not a necessity. According to the court, the warrant would serve no real protective purpose because the magistrate would have to take the word of the parole officer because of the broad nature of that individual’s authority. Consequently, the warrant would be a “mere piece of paper.” The court, however, cautioned that it would not uphold every search by a parole officer, suggesting that those done for the purpose of harassment or intimidation would not be valid: “In short, we do not accept the notion that parole officers may conduct full-blown searches of parolees’ homes whenever and as often as they feel like it.” 521 F.2d at 252. Finally, the court rejected the contention that the evidence found during the search could only be used for the purpose of the parole revocation hearing and not for prosecution of a new criminal charge, and cited Santos, supra, in support of this holding. A strong dissent took exception to allowing warrantless searches, particularly when based upon a parole officer’s hunch.

The same day as it decided Latta, supra, the Ninth Circuit rendered United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975), and applied the same rationale to probationers which it had applied to parolees. The search in Consuelo-Gonzalez, however, was held unconstitutional because it was conducted by the police rather than by a probation officer.

The United States Court of Appeals for the Fourth Circuit has rejected the position that a parole officer may conduct a search without a warrant. United States v. Bradley, 571 F.2d 787 (4th Cir. 1978). Rather, that Circuit espouses the reasoning of the Latta dissent: “While we recognize the important governmental interests at stake, we conclude that they have the effect of diminishing the rigorousness of the standard of cause which the parole officer must satisfy to obtain a warrant, not of removing the judicial protection which the warrant requirement interposes between the parole officer and the search.” 571 F.2d at 790.

State courts ground their decisions on equally divergent reasoning and standards. Montana requires a search warrant based upon probable cause before a probationer’s residence may be searched, although his person and vehicle may be searched by a probation officer without a warrant. State v. Fogarty, 610 P.2d 140 (Mont.1980). Iowa holds that a parolee’s Fourth Amendment rights, privileges and immunities “be accorded the same recognition as [that of] any other person.” State v. Cullison, 173 N.W.2d 533, 537 (Iowa 1970), cert. den. 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970). The Cullison court also based its decision upon the Iowa Constitution which states that the only privileges lost by those convicted of a crime are the rights to vote and hold office. Nevada requires that the probation or parole officer “have reasonable grounds to believe that a violation of the parole or probation has occurred” to uphold a warrantless search. Seim v. State, 590 P.2d 1152 (Nev.1979). However, in the Seim case there was involved permission to search as a condition of probation. Ohio holds that probationers and parolees have Fourth Amendment rights, but that “these rights are more limited in scope than those possessed by others.” State v. Deener, 64 Ohio St.2d 335, 414 N.E.2d 1055 (1980).

Noting that probation is a privilege and not a right, North Dakota has upheld against constitutional attack a condition of probation which requires the probationer to submit to a warrantless search. State v. Schlosser, 202 N.W.2d 136 (N.D.1972). In United States ex rel. Coleman v. Smith, 395 F.Supp. 1155 (W.D.N.Y.1975), the court ordered the evidence suppressed where the parole officer was on a routine visit and decided to search, finding drug paraphernalia inside a suitcase under the bed. The court stressed that the parolee was not at home and consequently could not have aroused suspicion by his actions and that the parole officer could point to nothing in the way of information which he had received to justify the search. Nor would the court accept the rationale that the search was pursuant to a consent to search agreement which was a condition of parole. Because the consent to search provision was part of the parole package, the court held that the consent was involuntary.

Courts which allow warrantless searches by probation or parole officers are in agreement that the searches must not be a “subterfuge for criminal investigation.” E. g. United States v. Dally, 606 F.2d 861 (9th Cir. 1979). Regular police officers may not undertake the search and later seek to justify it by the parole status of the accused. In re Martinez, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734 (1970), cert. den. 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88 (1970).

With the foregoing as background, we now turn our attention to the case at hand. The Colorado Supreme Court espouses what we consider to be the preferred position regarding the interaction of the Fourth Amendment and the status of an individual as a parolee, a position which considered in the light of the discussed opinions is more of a middle course. People v. Anderson, 536 P.2d 302 (Colo.1975). A probationer has essentially the same status as a parolee; in our view both must necessarily have a reduced expectation of privacy. The Fourth Amendment prohibits only unreasonable searches. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). As we said in State v. Patrick, supra: “The test of reasonableness in cases of this nature depends upon the total atmosphere of each case.” 381 So.2d at 503. The Patrick opinion then quotes Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447, 481 (1979):

“The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it and the place in which it is conducted.” [cites omitted]

To determine whether the search in the instant case was reasonable we must therefore examine the total atmosphere in which it took place. In the words of Bell v. Wolfish, supra, we must consider (1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it and (4) the place in which it was conducted.

An individual on probation does not have the same freedom from governmental intrusion into his affairs as does the ordinary citizen. In the case before us, the probation officer was not following a tip that defendant was engaging in criminal activity. Mr. Laird was simply doing his job supervising defendant’s probation. It surely is not impermissible for a probation officer to walk into the yard of the person he is supervising. This is particularly true where the officer having become reasonably suspicious of the possibility of criminal activity, of a nature which generally and specifically violates the conditions of his probation, investigates that activity. Under these circumstances, Mr. Laird did not need a warrant to conduct his limited search. Having decided that a warrant was not required in this case, we must still consider whether Mr. Laird was justified in deciding to search. In our opinion, a probation officer’s decision to search must be supported by something more than a mere hunch; however, a reasonable suspicion that criminal activity is occurring will suffice. We will not require that the officer have probable cause to conduct the search. To hold otherwise would place unnecessary obstacles in the path of a probation officer who is performing his job of supervising the individual assigned to him.

Mr. Laird was following established and permissible procedure when he went to visit defendant. Although not incarcerated, defendant had been convicted of a crime. His continued freedom was predicated upon his conforming his activity to the terms of his probation (not engaging in further criminal activity) and it is one duty of the probation officer to determine that defendant is abiding by the conditions of his probation. To further the purposes of probation, rehabilitation of the convicted individual and protection of society, it is a standard condition of probation that the probationer allow the probation officer to visit his home at the option of the officer. Defendant’s conditions of probation included this provision and the probation officer was making a routine visit at the time of the search. Laird had no prior information that defendant was engaging in prohibited activity nor did he learn of the activity at an earlier visit and return later to search for contraband.

Defendant was on probation for a drug offense. Mr. Laird knew that marijuana was being cultivated in the general area. He was suspicious when he saw a garden hose attached to a faucet on defendant’s house leading to a wooded area. He had a right to be knocking on defendant’s door and have his car parked in defendant’s driveway. The garden hose was in his view from the driveway. We have no doubt that subjectively defendant may have expected the marijuana plants not to be discovered— they were located in a wooded area and one had to cross a fence to reach their location. Nevertheless, once Mr. Laird (with his knowledge of marijuana cultivation in the area and his knowledge of defendant’s past involvement with drugs) saw the garden hose leading into the woods, he had sufficient reason to follow the hose and learn why it was in that strange location. He certainly had an articulable and reasonable explanation for going into the woods to trace the garden hose.

Although Mr. Laird did cross a fence before he discovered the marijuana plants, the search was not especially intrusive. Laird did not force open a locked door or rummage for several hours through defendant’s possessions. We certainly do not consider this search to be a subterfuge for criminal investigation. The search was not initiated at the suggestion of the police; they only became involved following a phone call from the parole officer. Indeed the search which resulted in finding the marijuana was completed before the police were contacted.

The search in the instant case offends neither the Fourth Amendment nor La. Const, art. I, § 5. For the foregoing reasons, the trial judge correctly ruled that the marijuana should not be suppressed.

Defendant also contends that his inculpa-tory statements should be suppressed, arguing that they were the product of an illegal search and arrest and that they were made without Miranda rights having been given. We have already determined that the search was not illegal; we shall therefore consider defendant’s other rationale for suppressing the statements.

As soon as the parole officer entered defendant’s house, he placed defendant under arrest for violating probation. Recently, the United States Supreme Court held that a person may not be arrested in his home without a warrant, in the absence of exigent circumstances. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The state concedes that there was no warrant for defendant’s arrest.

Because we find exigent circumstances to support defendant’s warrantless arrest in his home, we need not here decide whether Payton is applicable where a person is arrested in his home for probation violation and the arrest is effectuated by his probation officer. Nor need we decide whether R.S. 15:574.8 (see footnote 7) and its provision that a parole officer’s arrest of a parolee may be without a warrant has been rendered unconstitutional by Payton’s requirement that a person’s arrest in his home must be pursuant to an arrest warrant.

On Mr. Laird’s initial visit to defendant’s home, the garden hose stretched along a well-worn path into the wooded area. When Mr. Laird returned to defendant’s home after contacting the sheriff’s office, he noticed that the garden hose no longer stretched into the woods. Instead, the hose lay coiled in defendant’s yard. During the short time Mr. Laird had been gone, someone had removed the hose from the wooded area and placed it in a position which presumably would attract less attention. Mr. Laird testified that he could observe the road on which defendant’s house is located from the time he left the woods to call the sheriff until he returned from making the phone call. No cars used the road during that period. Nevertheless, defendant answered the door the second time Mr. Laird knocked, thus indicating that he had been in the house at the time of Laird’s initial visit. The coiled hose indicated, perhaps, that at least defendant was concerned that the outstretched hose had caused or might cause suspicion to focus on the patch.

While it could always be argued that a person might destroy evidence and leave the jurisdiction before a warrant could be obtained, that alone might not supply the exigent circumstances which would be necessary to obviate the requirement of a warrant. In the instant case, however, someone had already moved the hose to a less conspicuous position. A person alerted that his illegal activity has been discovered is aware that arrest may be imminent and is particularly likely to avoid that arrest by destroying the evidence or leaving the area. In our view, this presents sufficient exigent circumstances to allow a warrantless arrest, albeit in defendant’s home.

Finally, we must consider defendant’s argument that the statements should be suppressed because they were not preceded by the required Miranda warnings. It is true that Mr. Laird did not give the warnings when he placed defendant under arrest for violation of the conditions of his probation. In State v. Lassai, 366 So.2d 1389 (La.1978), we held that a defendant’s admissions to his probation officer were properly admitted in spite of the absence of Miranda warning. In the case before us, defendant made no admissions to his probation officer. The inculpatory statements were made after the group reached the marijuana patch and the record clearly establishes that defendant received Miranda warnings before being questioned by the sheriff’s deputy concerning the growing plants.

The trial judge’s ruling that the statements are admissible is correct.

Decree

For the foregoing reasons, the rulings of the trial judge are affirmed.

AFFIRMED.

REDMANN, J. ad hoc, dissents and assigns reasons.

       Judges William V. Redmann and Thomas J. Kliebert of the Court of Appeal, Fourth Circuit, and Judge Cecil C. Cutrer of the Court of Appeal, Third Circuit, participated in this decision as associated justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Fred A. Blanche, Jr. and Harry T. Lem-mon.

      . Included in the conditions of his probation was defendant’s duty to refrain from violating any law and to refrain from illegally consuming, possessing or using any controlled dangerous substances.

      . The dissent cited Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), in support of its position. In these cases, the United States Supreme Court held that warrants are required for administrative searches, but that the warrants may issue on something less than probable cause. The dissent further noted that only when dealing with administrative searches of federally licensed dealers in liquor and firearms has the Supreme Court negated the warrant requirement and then only within the context of the statutory or regulatory scheme. Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972).

      . We need not in this case consider the extent to which and the circumstances under which a probation officer may or may not be entitled to conduct a warrantless search inside probationer’s home.

      . In Commonwealth v. Brown, 240 Pa.Super. 190, 361 A.2d 846 (1978), the court ordered the evidence suppressed because the parole officer had first noticed the television set and suspected it might be stolen in early January but did not conduct the search until mid-January and then had police assistance. In the eyes of the court, the delay and involvement of the police indicated that the parole officer was acting as a policeman rather than an administrator. Although Mr. Laird brought the police into the case, he did so immediately upon discovering the marijuana.

      . In both these situations, courts have ordered the evidence suppressed. State v. Cullison, supra; however Iowa accords parolees full Fourth Amendment rights; Commonwealth v. Berry, 265 Pa.Super. 319, 401 A.2d 1230 (1979).

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

      . R.S. 15:574.8 authorizes a parole officer to arrest a parolee if the officer has reasonable cause to believe that the parolee is violating a condition of his parole. This arrest may be without a warrant.


text:
    Derrell J. HEBERT v. George E. BRAZZEL, et al. (two cases). Maxine ROMERO, et al. v. George E. BRAZZEL, et al. (two cases).
    Nos. 80-C-1827, 80-C-1922.
    Nos. 80-C-1828, 80-C-1921.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Rehearing Denied Sept. 28, 1981.

      Francis J. Mooney, Jr., of Curtis, Hyde, Mooney & McEachin, New Orleans, for plaintiffs-applicants.
    Allen L. Smith, Jr., of Plauche, Smith, Hebert & Nieset, James E. Williams, of Woodley, Barnett, Cox, Williams & Fenet, Lake Charles, for defendant-respondent.
   DENNIS, Justice.

The original plaintiff, Derrell J. Hebert, brought an action for damages against the manufacturer of a valve. After his death, his widow and children were substituted for him as plaintiffs in that action, and a wrongful death suit was filed against the manufacturer by his widow individually and for his children. The cases were consolidated and tried before a jury and the plaintiffs appealed from the judgment in favor of the defendant manufacturer. The court of appeal affirmed, 393 So.2d 135 (La.App. 3d Cir. 1980) and this court granted writs.

Hebert was injured during the course of his employment as a driller for Brazzel Well Service, at a well site in Beauregard Parish. The accident occurred as Hebert was removing a threaded gate valve from the top of a pressurized water tank. He thought he had opened the valve giving vent to all of the compressed air in the tank, but as he unscrewed the valve it was suddenly blown out of its fitting striking him in the chest. Hebert was treated for a ruptured esopha-ghus and other internal injuries. His condition improved somewhat but approximately one year after the accident he suffered a pulmonary embolism and died while undergoing treatment as a result of his injuries.

A valve manufactured by NIBCO, Inc. was introduced into evidence. Its valve stem was broken, and its handwheel was broken off. As originally designed and manufactured, however, the valve could be opened and shut by turning a 2% inch hand-wheel. The handwheel was attached to a threaded valve stem which protruded from the valve. When the stem was turned, it raised or lowered a gate inside the valve which had the effect of opening or closing the valve’s flow line. The gate had a threaded aperture through which the stem extended, so that the gate rode up and down the stem as it was turned. The valve stem and handwheel did not rise or descend as they were turned. Because the valve stem was broken on the valve introduced into evidence, the gate which blocked the flow line could not be opened by turning the valve stem.

Hebert’s co-workers testified that the NIBCO valve introduced into evidence was the one which caused the accident. All of the evidence indicates that the accident resulted from a broken stem in the valve. Hebert used a wrench to turn the valve stem because the handwheel was broken off. His turning of the stem failed to vent the pressurized tank either because the valve stem was already broken or because the stem snapped as Hebert turned it with the wrench, allowing the gate to fall down into a closed position. Hebert’s co-employees corroborated the latter theory by testifying that they heard air escaping through the valve for several seconds as he turned the stem with the wrench. The evidence was inconclusive, however, as to whether the valve stem was broken by its being forced beyond a normal open or closed position or due to some other reason. In any event, the valve’s failure to open properly prevented a release of all the pressure from the tank causing the accident which occurred when Hebert unscrewed the valve from its fitting. Ultimately, the crucial issues presented to the jury were whether the accident was caused by a defect in the valve or by Hebert’s use of excessive force with the wrench, and, if the latter, whether the danger of breaking the valve stem with the wrench was one which would be contemplated by an ordinary consumer or user.

In response to special interrogatories the jury found:

(1) That the valve in question was not defectively designed or manufactured by NIBCO.

(2) That the valve was not in normal use at the time of its failure.

(3) That the valve was not unreasonably dangerous to normal use.

(4) That if the valve was defectively designed or manufactured by NIBCO, that that defect was not the proximate cause of Derrell Hebert’s injuries and death.

(5) That Derrell Hebert assumed the risk of his injuries.

(6)-(8) That Hebert’s widow and children were not entitled to recover damages.

A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who, without fault on his part, sustains an injury caused by a defect in design, composition or manufacture of an article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i. e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect. Weber v. Fidelity & Casualty Ins. Co. of N. Y., 259 La. 599, 250 So.2d 754, 755 (1971).

In reviewing findings of fact, an appellate court should not disturb a determination by the jury or the trial judge unless it is clearly wrong considering all the evidence. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Although the court of appeal correctly stated this standard of review in its opinion, it did not discuss the evidence from which it concluded that the factual findings of the jury were not clearly wrong. Without the court of appeal’s discussion of the evidence to guide us, we granted writs on the basis of plaintiffs’ claims that the jury erred manifestly in finding the facts and applying the rules of strict tort liability. After conducting our own review of the evidence and considering the arguments of the parties, however, we conclude that the decisions by the jury and the appellate court should be affirmed.

The jury’s determination that the plaintiffs failed to establish that the valve was defectively manufactured was not clearly wrong considering all of the evidence. The defendant manufacturer introduced substantial evidence from which the jury could have found that the valve stem probably was broken by excessive torque and not due to an internal weakness.

Defendants’ experts conducted tests on similar valve stems which tended to show that the stem in question could withstand force applied by an ordinary man with a 2% " handwheel but not stress generated directly on the valve stem by the same man using a 24" pipe or stillson wrench. In the experiment, the torque created by the wrench was roughly 2V2 times that applied by the handwheel. Plaintiffs’ experts, who testified that the valve stem in question had been cast defectively as evidenced by its centerline shrinkage, based their opinions on visual inspections without performing any physical strength tests. Their testimony was contradicted by defendants’ witnesses who stated that centerline shrinkage was not uncommon and that their tests demonstrated that this phenomenon did not reduce the strength of the valve stem in question to a dangerous level in normal use. Accordingly, we conclude that the jury acted reasonably and within its proper function in finding that the valve stem was not defectively manufactured.

Nevertheless, plaintiffs’ counsel argues that the valve was defectively designed because it had no indicator to show when the valve was fully open or closed. He contends that use of a wrench on a valve with a broken handwheel is normal in oil field operations, but that it involves a danger of breaking the stem by forcing it beyond the ordinary stopping point. Hence, this court is urged to conclude that the jury was clearly wrong in failing to find that the valve was thus unreasonably dangerous in normal use.

Although there may have been sufficient evidence from which the jury could have reached a different result, we do not think the trier of fact erred manifestly in finding that the plaintiffs failed to establish that the valve was defectively designed. A product is unreasonably dangerous when it is dangerous to an extent beyond that which would be contemplated by an ordinary consumer or user. DeBattista v. Argonaut-Southwest, 403 So.2d 26 (La.1981); Foster v. Marshall, 341 So.2d 1354 (La.App. 2d Cir. 1977); Loyacano v. Continental Ins. Co., 283 So.2d 302 (La.App. 4th Cir. 1973); cf. Welch v. Outboard Marine Corporation, 481 F.2d 252 (5th Cir. 1973). See also Crawford, Products Liability — The Cause of Action, 22 La.Bar J. 239, 247-48 (1975). The expert witnesses testified that this type valve was commonly used and considered acceptable in the industry. The plaintiffs presented no evidence that an ordinary user would fail to contemplate the danger involved in opening the valve with a wrench. The jury reasonably could have concluded that an ordinary oilfield worker would appreciate the danger involved in greatly multiplying the torque to the valve stem by turning it with a 24" stillson wrench.

Plaintiffs also argue that the manufacturer failed to warn of the dangers which would accompany use of a wrench to operate the valve. A manufacturer must give warning of any danger inherent in his product’s normal use which is not within the knowledge of an ordinary user. Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978); cf. Rey v. Cuccia, 298 So.2d 840 (La.1974); Foster v. Marshall, supra; Amco Underwriters of Audubon Ins. Co. of American Radiator & Standard Corp., 329 So.2d 501 (La.App. 3d Cir. 1976). However, as we noted in discussing the jury’s finding that a design defect had not been proven, the record provides sufficient basis for a reasonable trier of fact to conclude that the danger of breaking the valve stem with a large wrench due to excessive torque was obvious to an ordinary worker.

The jury found that the defendant manufacturer had proven its affirmative defenses of abnormal use and assumption of risk. Since we affirm the jury’s decision that plaintiffs failed to establish a case of strict liability, however, the issues raised by these affirmative defenses will be set to one side, as irrelevant to our review in this case.

Plaintiffs contend that the trial judge erred in allowing the manufacturer to introduce experimental evidence. Defendants’ experts testified that they performed tests measuring the torsional strength of valve stems similar to the one in question in this case. They related that the valve stems used in the experiments had been reproduced from the same pattern, using the same alloy, the same dimensions, and the same thread pattern as were employed in making the valve in question in the 1950’s.

Plaintiffs’ counsel objected to the introduction of the experimental evidence on the grounds that the experiments were conducted under dissimilar conditions. Defendants’ experts conceded on cross-examination that there were twenty-one individual differences between conditions during the experiments and those surrounding the accident. These variations merely demonstrated that the conditions were not identical, however, and do not establish that the experiments lacked probative value.

The lack of similarity between the conditions of the experiment and those of the accident concerned such matters as the use of different workmen and lathes to make test valve stems, the possibility that the points of fracture on the valve stems may have been different, a difference in the design of the handwheels, the possibility that the strength of the men who turned the stems may have varied, and the fact that centerline shrinkages in valve stems, like fingerprints, are never identical. Plaintiffs failed to present any evidence that these variations destroyed the substantial similarity of conditions insofar as they were relevant in demonstrating the torsional strength of the valve stem in question.

As noted by McCormick:

“Usually the best gauge of the probative value of experiments is the extent to which the conditions of the experiment were identical with or similar to those obtaining in respect to the litigative happening. Accordingly, counsel in planning experiments must seek to make the conditions as nearly identical as may be, and in presenting the evidence he must be prepared to lay the foundation by preliminary proof of similarity of conditions. Though the similarity formula is sometimes overrigidly applied, most courts will recognize that the requirement is a relative one, so that where a high degree of similarity is not attainable, the court might still conclude that the results of the experiment are of substantial enlightening value to the jury to admit the evidence. Manifestly, if the trial judge is to be given responsibility for exercising such an indefinable value-judgment he must be accorded a reasonable leeway of discretion reviewable only for abuse.” McCormick on Evidence, pp. 485-86 (2d ed. 1972). We think the trial judge acted within the reasonable discretion accorded him in determining that the degree of similarity attained sufficiently approached identicalness to be of substantial enlightening value to the jury without being misleading.

Plaintiffs contend it was error for the trial court to allow introduction of the deposition of a plaintiffs’ expert witness because 1) the witness was deceased at the time of the trial, 2) his testimony was hearsay, 3) his testimony was based on privileged information supplied by plaintiffs’ counsel, 4) the deposition was inaccurately transcribed, and 5) the deposition contains irrelevant material and gross suppositions not in evidence.

Article 1450 of the Code of Civil Procedure provides that at trial, so far as admissible under the rules of evidence applied as though the witness was then present and testifying, the deposition of a witness may be used for any purpose if the court finds that the witness is dead. See Maraist, 24 La.Bar J. 161, 167 (1976). Accordingly, the witness’s death did not prevent use of his deposition. Since the rules of evidence applied as though the witness was present and testifying at trial, that he related hearsay facts given him by plaintiffs’ counsel did not justify the exclusion of his testimony. He was called as an expert witness and the facts upon which he based his opinion were admissible. Moreover, these facts were consistent with the other evidence of the accident introduced at trial.

The remaining grounds asserted for excluding the deposition are equally meritless. Our review of the deposition fails to disclose that the trial judge neglected to exclude hearsay, that the testimony was irrelevant or contained gross supposition, or that the jury was informed of the existence of other original parties to the suit. The plaintiffs have failed to even point out for us the portions of the deposition which they contend were inaccurately transcribed.

Accordingly, the judgment of the court of appeal is affirmed.

AFFIRMED.

      . Before trial the plaintiffs settled tort claims with the following defendants: 1) George Braz-zel, president and chief executive officer of Brazzel Well Service, Inc., Hebert’s employer; 2) A. C. Company of South Louisiana, Inc., alleged to have designed and constructed the water tank to which the valve was attached; 3) Joseph Gibson, Vice-President of Brazzel Well Service and president of A. C. Company; and 4) their insurers.
      In addition, before trial, McDonald Well Service, Inc., which sold the water tank to Brazzel Well Service, and Hunt Oil Co. and the Estate of H. L. Hunt, whose employee allegedly was supervising Hebert at the time of the accident, and their insurers were dismissed by summary judgment.


author: DENNIS, Justice. DIXON, Chief Justice

text:
    Joe BERRY v. LIVINGSTON ROOFING COMPANY, et al.
    No. 81-C-0506.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Rehearing Denied Sept. 28, 1981.
    Joseph A. Gladney, Joseph A. Gladney & Associates, Baton Rouge, for plaintiff-applicant.
    Daniel R. Atkinson, Owen, Richardson, Taylor, Mathews & Atkinson, Baton Rouge, for defendants-respondents.
   DENNIS, Justice.

The issue in this worker’s compensation suit is whether the plaintiff sufficiently established a causal connection between his work-accident and his subsequent disability. Both lower courts concluded that he had not. Because the credibility determinations made below are not clearly wrong, we affirm.

On January 24, 1977, plaintiff, a twenty-seven year old roofer, was unloading his employer’s truck when he lost his balance and fell from the truck bed to the pavement below. It is uncontested that plaintiff suffered injuries to two teeth, fractured both wrists, and received some facial lacerations. He received compensation benefits for those injuries through May, 1977 and suffers no residual disability from them.

On May 13, 1977, Dr. G. Gernon Brown, an orthopedist, took x-rays of plaintiff’s lower back and found that plaintiff had spondylolisthesis, a condition characterized by slight forward displacement of the last lumbar vertebra. According to Dr. Brown, this condition probably developed in plaintiff’s childhood and was definitely not caused by any recent trauma. Other than the x-rays, no objective clinical evidence of back trouble was observed. Dr. Brown testified that persons with spondylolisthesis should not engage in heavy manual labor because of their susceptibility to back injury and that, in his opinion, plaintiff was medically disabled from performing such work both before and after the accident.

Aggravation of a pre-existing physical deficiency is compensable, however. E. g., Allor v. Belden Corp., 393 So.2d 1233 (La.1981); Parks v. Ins. Co. of North America, 340 So.2d 276 (La.1976). Therefore, the question presented is whether plaintiff established that the accident caused his preexisting condition to become symptomatic or aggravated it in some way.

A presumption of causal connection between the accident and the ensuing disability is available to ease the injured worker’s burden of proof when he is able to show that before the accident he was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence establishes a reasonable possibility of such a connection. Lucas v. Ins. Co. of North America, 342 So.2d 591, 596 (La.1977). See, e. g., Allor v. Belden, supra; Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978). The record does not indicate that plaintiff had experienced any back problems prior to the accident. He had worked for the defendant about three years with only two minor injuries, neither relating to his back. Dr. Brown testified that the plaintiff’s fall from the truck was capable of causing the spondylo-listhesis to become symptomatic. In his opinion, it would be medically reasonable to find such an accident the precipitating cause of the symptoms if these symptoms appeared within a few days following the accident, but not if several months passed without complaint.

The first undisputed complaint of back problems to a physician by the plaintiff was made to Dr. Brown on May 13, 1977, three and one-half months after the accident. Both lower courts were unconvinced by plaintiff’s evidence of earlier complaints. Although the trial judge was reluctant to brand any witness a liar, he clearly found that the more reliable and credible testimony had been presented by the defendant. After a careful review of the record, we do not find these determinations clearly wrong.

Plaintiff testified that he first noticed pain in his lower back two or three days after the accident. He surmised that until then acute pain of his other injuries masked his back problems. Plaintiff testified that since that time he has been constantly bothered by his back. His complaints of back pain following the accident were corroborated by his mother, niece, brother, sister, and two close family friends. According to them, the plaintiff complained often about his back, his movement was restricted, and he was at times visibly in pain. The lower courts discounted the testimony of plaintiff’s family and friends because it contained inconsistencies and because of the witnesses’ understandable lack of detachment. Other witnesses including co-employees and examining physicians did not remember any complaints of back pain by the plaintiff or notice his movement being restricted.

The trial court was most impressed by the fact that plaintiff had not complained about his back to Dr. Lloyd Perez in the numerous office visits between January 26, 1977 and May 10, 1977. The plaintiff testified that he had complained once to Dr. Perez on February 4th, but the doctor had no recollection of that particular visit nor of any back complaints ever being made. Plaintiff also claimed to have told the insur-anee adjuster about his back pains on February 3rd, but the adjuster testified oppositely and the accident report he filed contained no references to back ailments.

Reasonable evaluations of credibility made by the trier of fact should be accorded great weight by a reviewing court. Cadiere v. West Gibson Products Co., Inc., supra, 364 So.2d at 999; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring Co., 238 So.2d 716, 724 (La.1973). We accept the trial court’s finding that the plaintiff failed to establish that the accident triggered an onset of disabling symptoms. The finding is reasonable in light of all the evidence of record. Therefore, the presumption of causation is not applicable, and causation is inconsistent with the medical evidence.

Plaintiff also argues that defendant should pay for additional dental work which he says the accident caused. The record shows, however, that this work was not recommended until after the plaintiff fell hitting his mouth on a nightstand in December, 1977. Plaintiff did not adequately demonstrate any causal connection between the work-accident and this additional dental damage necessitated by the second fall at home.

For the reasons assigned above, the judgment below is affirmed.

AFFIRMED.

CALOGERO and WATSON, JJ., dissent.

DIXON, C. J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

It seems to be undisputed that plaintiff’s back pain was diagnosed by his orthopedic surgeon as symptomatic spondylolisthesis three and one-half months after a fall in which he suffered damage to his face and teeth and broke two wrists. There is no evidence that the back injury came from any cause other than the fall. There is evidence that the fall caused the injury. This court denies recovery because it finds that plaintiff failed to complain earlier of his back injury. We require greater wisdom and foresight from an injured workman than we should,


author: PRICE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Alex WATSON, Defendant-Appellant.
    No. 14603.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 1981.

      Watson & Watson by Philip B. Watson, Jr., St. Joseph, for defendant-appellant.
    George E. Wall, Jr., Sp.Asst.Dist.Atty., Tallulah, for plaintiff-appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

In this suit the state seeks to have the defendant, Alex Watson, declared the father of Johnny and Kimberly Robinson, so as to establish his responsibility for child support. As a condition for receiving Aid to Families with Dependent Children (AFDC) payments, the mother, Katie Robinson, assigned to the Department of Health and Human Resources her rights to establish paternity and obtain child support. From a judgment declaring him to be the natural father of the children and ordering him to pay support “arrearages” defendant appeals. We affirm the judgment insofar as it declares Alex Watson the natural father, but reverse and modify the judgment insofar as it orders defendant to reimburse the state for payments made to the mother for support of the children before this suit was filed.

The mother testified that Johnny Robinson (born 1/20/74) and Kimberly Robinson (born 8/14/78) were both the children of defendant. She testified that she began dating defendant around January 1973 and had sexual relations with him on the first date. She continued this relationship until the birth of Johnny. After Johnny was born in January 1974, defendant continued to visit the mother about twice a month and these meetings continued until Kimberly was born in August 1978. The mother testified that she had no sexual relations with or even dated anyone other than defendant subsequent to her initial date with him in January 1973. She has lived in her mother’s house with her mother and aunt the entire time of her relationship with defendant and has never lived with him. Defendant has provided no support for the two children other than to bring two bottles of milk to the mother shortly after the birth of Johnny in 1974.

The state filed this suit on October 12, 1978, for the purpose of asserting the rights assigned by the mother to establish paternity and obtain child support. At the close of the state’s evidence at the trial on the merits, the trial court dismissed defendant’s motion for directed verdict and ordered the parties to submit to blood tests. These tests were inconclusive in that defendant could not be eliminated as the father.

The trial court rendered judgment declaring defendant to be the father of Johnny and Kimberly Watson and ordering him to pay to the state the sum of $2,756 representing AFDC payments made to the mother between December 1975 and July 1980. On appeal defendant contends that the trial court erred in finding him to be the father. Defendant also contends that even if the judgment establishing paternity should stand, the award for “arrearages” must be reversed since child support is only due for periods subsequent to judicial demand and judgment fixing the amount.

The two issues on appeal are the following:

(1) Was the trial court clearly wrong in its finding that Alex Watson is the biological father of Johnny and Kimberly Robinson?
(2) Did the trial court err in ordering defendant to reimburse the state for AFDC payments expended before the date of judicial demand?

PATERNITY

The pertinent Civil Code Articles for establishment of illegitimate filiation are the following:

Illegitimate children, who have not been legally acknowledged, may be allowed to prove their paternal descent. C.C. Art. 208.
In the case where the proof of paternal descent is authorized by the preceding article, the proof may be made in either of the following ways:
1. By all kinds of private writings, in which the father may have acknowledged the bastard as his child, or may have called him so;
2. When the- father, either in public or in private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such;
3. When the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time when the child was conceived. Art. 209.
The oath of the mother, supported by proof of the cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having had an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child. Art. 210.

At the outset we note that the record does not reveal sufficient evidence to establish acknowledgement under C.C. Art. 209. With the possible exception of bringing milk on one occasion to the baby boy born in 1974, defendant has not demonstrated in any way an intent to treat either of these children as his own.

Testimony of the mother reveals that she gave birth to a child out of wedlock in 1972, naming one Bert Thomas as the father. She stated that she had never had sexual relations with anyone prior to Thomas and defendant is the only other person she has ever dated.

Defendant contends that the mother is barred from establishing paternity by the terms of Art. 210 since she has admittedly had “an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child.” Although Art. 210 may arguably be subject to such a strict interpretation, this court has previously chosen not to apply it in such a manner.

In Wilson v. Ernst, 367 So.2d 891 (La.App.2d Cir. 1979), writ denied 369 So.2d 1365 (La.1979), we refused to hold that an admitted prior sexual relationship by the mother would disqualify her from proving paternity under Art. 210. In Wilson, the mother admitted having sexual relations with a man whom she stopped dating in January 1975. The child, whose paternity was at issue, was born in February 1977. Thus, in Wilson, evidence of sexual relations which ended two years prior to the birth of the child in question was insufficient to establish that the mother was a woman of “dissolute manners” at the time of conception.

In McConkey v. Pinto, 305 So.2d 469 (La.1975), although finding evidence of ac-knowledgement under Art. 209, the Supreme Court discussed the disqualification of Art. 210 as follows:

The purpose of this disqualifying provision is to prevent a dissolute mother from choosing as the father of her illegitimate child any one of several men with whom she had been intimate at the time of conception.

Using a similar rationale, the Third Circuit has also refused to disqualify a woman from utilizing the article solely because she had been “guilty” of one prior “illicit connection.” See Bertrand v. Warren, 326 So.2d 505 (La.App.3d Cir. 1976).

We do not mean to imply that evidence of other sexual relations is significant only when in the time frame of possible conception when construing the disqualification provisions of Art. 210. For example, evidence of numerous indiscriminate sexual relationships even remote in time from the birth of the child in question could very well be relevant to support the premise that the mother was a woman of dissolute character at the time of conception. At the other extreme, evidence of only one prior act of sexual misconduct occurring many years prior to conception of the child whose paternity is at issue would have little relevance to the same premise. It is the weight to be given the mother’s testimony that is affected by evidence of other sexual relations, not the burden of proof. Succession of Washington, 308 So.2d 892 (La.App.2d Cir. 1974).

The evidence in this record fails to establish the mother as such a woman of dissolute manners. She testified that she had only dated two men in her life and had started dating defendant exclusively more than a year prior to the birth of the oldest child whose paternity is at issue in this case. She testified that she had sexual relations with no one other than defendant subsequent to the birth of her oldest child, who is about two years older than Johnny Robinson, the oldest of the children at issue in this case. Her testimony was substantially corroborated by her mother, aunt, and brother. Defendant did not testify to deny or contradict the mother’s testimony. We therefore conclude that the evidence substantially supports the trial court’s finding that defendant is the biological father of Johnny and Kimberly Robinson.

SUPPORT PAYMENTS

When the parties to this litigation arrived in court on January 27, 1981, for signing of the judgment, the state announced that it was “only asking for arrearages” since the mother had previously been removed from the AFDC rolls in July 1980. Over the objection of defendant that the petition did not seek arrearages and that he was unprepared to argue the point, the trial court reopened the case to allow testimony which established that the state had paid a total of $2,756 to the mother in AFDC payments from December 1975 to July 1980. This is the amount defendant was ordered to pay.

Defendant contends that a judge has no authority to allow alimony prior to judicial demand. He contends that when the law mentions arrearages, it undoubtedly has reference to an amount becoming due after the alimony has been fixed by the court. This argument has merit.

In Coney v. Coney, 215 La. 667, 41 So.2d 497 (1949), the Supreme Court held that alimony pendente lite was only due and payable from the date of judicial demand. In Cumpton v. Cumpton, 283 So.2d 846 (La.App.2d Cir. 1973), this court interpreted Coney to say that the trial court cannot make alimony retroactive to a date prior to judicial demand. In Re Greene, 300 So.2d 516 (La.App.2d Cir. 1974), writ denied 302 So.2d 621 (La.1974), held that the rules established by Cumpton and Coney apply to the commencement of support payments in paternity/support of illegitimate children cases.

We consider it almost self-evident that defendant should not be held responsible for AFDC payments made before he was ever adjudicated the father of the children and before any court order had been rendered establishing the amount of his support obligations. The provisions of the statute which provide for the assignment by the mother of her rights to claim support by virtue of her accepting AFDC payments clearly seems to contemplate that the assignment shall be applicable only to earlier court ordered child support payments. La. R.S. 46:236.1(F) in pertinent part:

The amount of such child support shall be set only by order of a court of competent jurisdiction or by consent of the party-

We conclude, therefore, that the judgment appealed must be reversed insofar as it orders defendant to reimburse the state for AFDC payments made before this suit was filed.

For the reasons assigned, the judgment appealed is amended to reduce the sum payable by defendant to One Thousand Seventeen and 50/100 ($1,017.50) Dollars, which represents' AFDC payments apportioned to Johnny and Kimberly Robinson subsequent to October 1978. The judgment is otherwise affirmed. Costs of this appeal are assessed to appellant.

      . La.R.S. 46:236.1 now provides in pertinent part:
      § 236.1 Family and Child Support Programs
      * * * * * *
      E. By accepting aid to families with dependent children assistance for or on behalf of a child or children, the applicant or recipient shall be deemed to have made an assignment to the department of any right, title, and interest to any support obligation or ar-rearages owed to or for such child or children or caretaker up to the amount of public assistance money paid to or on behalf of such child or children or caretaker for such term of time as such public assistance moneys are paid; provided, however, that the department may thereafter continue to collect any outstanding debt created by such assignment which has not been paid by the responsible person. The applicant or recipient shall also be deemed, without the necessity of signing any document, to have appointed the SES Program Administrator as his or her true and lawful attorney-in-fact to act in his or her name, place, and stead to perform the specific act of endorsing any and all drafts, checks, money orders or other negotiable instruments representing support payments which are received on behalf of such child or children or caretaker as reimbursement for the public assistance moneys paid to such applicant or recipient.
      * * * * * *

      . Articles 208 and 209 were amended, and Article 210 was repealed by Acts 1980, No. 549. Nevertheless, these paternity articles being substantive legislation are not retroactively applicable to the instant case.

      . We find it significant in this case that there is no mention of arrearages in the petition filed by the state. The prayer of relief is as follows:
      WHEREFORE, petitioners pray that there be judgment herein declaring Alex Watson be recognized as the biological father and awarding to the State of Louisiana child support in the amount to be set by this Honorable Court payable through the Louisiana Department of Health and Human Resources (DHHR), Office of Family Services, and awarding all costs of this proceeding.


author: REDMANN, Judge.

text:
    Mr. & Mrs. Vick C. CANDELLA, v. CONVENIENCE CENTER, INC.
    No. 12029.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1981.

      John F. Tooley, Jr., Zoe Smith Wong Too-ley, Waldmann & Weidner, Gretna, for plaintiffs-appellants.
    John C. Bono, Lee, Martiny & Caracci, Metairie, for defendant-appellee.
    Before REDMANN, SCHOTT and KLIE-BERT, JJ.
   REDMANN, Judge.

Plaintiffs in July 1974 subleased part of a building being constructed, agreeing to pay any increase in real estate taxes “after the first full year that the demised premises shall be assessed as improved property.” (Emphasis added.) The land upon which the building today stands had been assessed as of January 1 (tax day) in 1973 as vacant land with a $211.65 tax, and in 1974 (six months prior to plaintiffs’ sublease) as land and improvement (because building construction had begun by January 1, 1974) with a $1,326.50 tax. Construction was completed before January 1, 1975, and the tax for 1975 was $2,764.94 for land and the entire building.

Plaintiff brought this action for a declaratory judgment after defendant billed plaintiff for the 1976 tax increase (and later that of 1975) above the 1974 tax. The trial judge agreed with defendant. We reverse.

First we note as a matter of law, that the “demised premises” (the part of the building subleased to plaintiffs) are not separately assessed at all and thus are not “assessed as improved property.” Louisiana assesses the land together with all improvements by one assessment.

Second, as a matter of fact, the “demised premises” were not yet assessed as of January 1, 1974 because the “demised premises” were not yet in existence (although a part of them were, in that construction had begun and the land existed). Thus, to the extent that it can be said that the demised premises are assessed because included within the assessment of land and the whole building, it cannot be said that the demised premises were assessed prior to January 1, 1975, the first tax day after their existence.

Third, there is no assessment in Louisiana for a partial year, and therefore “the first full year that the demised premises shall be assessed as improved property” makes no sense. The word full would have no meaning.

Fourth, if in July 1974 the lessor intended that the January 1974 taxes should be the base above which increases should be paid (notwithstanding that construction was not yet complete in January), why should the lease use such complicated language instead of “In the event the real estate taxes shall hereafter be increased”?

We conclude that the quoted language of this contract will not support the construction that defendant urges. The best defendant might argue is that there is a doubt as to the meaning of that language; but La.C.C. 1958 would oblige a construction favorable to plaintiffs because defendant drafted the contract.

We construe the'contract to provide that the “demised premises,” that is, the completed leased part of the building, had to be assessed (included within the assessment), that is, must have had its effect upon the assessment as of January 1 of the tax year (the probable meaning of the otherwise inexplicable “first full year”), before the amount of taxes for the year constitutes the base above which increases are payable by plaintiffs.

Reversed; judgment for plaintiffs at defendant’s cost, that 1975 is “first full year that the demised premises [were] assessed as improved property.”

      . In the event the real estate taxes levied and assessed against the demised premises shall be increased after the first full year that the demised premises shall be assessed as improved property, then and in that event, the Lessee shall pay as additional rent, the amount of any increase, within ten (10) days after demand, and upon delivery to Lessee of photo copies of the tax bill for the first full year as assessed property and any tax bill showing any increase as herein provided, in proportion to the square feet demised herein bears to the total square footage of the entire building.

      . But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.