text:
    Michael E. CORCORAN v. PARISH OF JEFFERSON & Director of the Department of Public Utilities.
    No. 12076.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Rehearing Denied Nov. 20, 1981.
    Nathan Greenberg, Greenberg & Dallam, Gretna, for Michael E. Corcoran plaintiff-appellant.
    Hubert A. Vondenstein, Parish Atty., Pierre F. Gaudin, Asst. Parish Atty., Gret-na, for Parish of Jefferson & Directors of the Department of Public Utilities defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This is an appeal from an adjudication of the Jefferson Parish Council that certain lots of real estate owned by Michael E. Corcoran were deficient in grade requiring them to be filled. The issue is whether the owner was afforded due process of law at the hearing.

Jefferson Parish determined that several lots of real estate owned by Michael E. Corcoran were below curb grade and must be filled in accordance with the Jefferson Parish “Lot Fill Ordinance,” Section 9-8 of the Jefferson Parish Code of Ordinances. On two prior occasions, some portions of the ordinance had been declared unconstitutional, resulting in the amendment of the ordinance and the bringing of the present proceedings. The parish issued a notice of the deficiency and of a hearing to be held under the following provisions of the ordinance:

“Notice. The Parish of Jefferson shall give the property owners or their agents due notice by registered or certified mail that their property has been inspected and it had been found to be below grade. Said notice shall also include the estimated cost of the work which must be done to bring the property to proper grade. Hearing. The said notice shall inform the property owner that he must show cause at a meeting of the parish council why the property in question should not be raised to curb grade. The date of the said meeting shall be specified in the notice and shall take place no less than ten (10) days from receipt thereof. At said meeting, the property owner may raise whatever objection he may have to the filling of said property. Said notice shall also inform the property owner that if no objection is raised at the meeting, or if, after a hearing on the matter, the council determines that the property should be raised, the property owner shall be given thirty (30) days to perform the necessary work at his own expense.”

At the hearing, Corcoran’s attorney attempted to cross-examine the three witnesses produced by the Parish as to the condition of the land, and the Council refused to permit the cross-examination. No other witnesses were produced. The sole issue is whether the property owner is entitled to cross-examination of the Parish’s witnesses.

In the case of Tafaro’s Investment Company, Inc. v. Division of Housing Improvement, et al, 261 La. 183, 259 So.2d 57 (La.1972) the Louisiana Supreme Court discussed the difference between the legislative and judicial functions of public bodies stating that when a judicial function is involved, an analogy to judicial process is made and the procedural safeguards developed in the administration of justice must be observed. In that case, it was held that while the ordinance did provide for notice of hearing, the procedure was not followed in such a manner as to satisfy the due process requirements of reasonable notice and adequate hearing. The comparable facts of that case to this case require us to find that there was not an adequate hearing in this case to satisfy the due process requirements.

First, we refer to the Model State Administrative Procedure Act as adopted in LSA-R.S. 49:951 et seq. That act applies to judicatory hearings of the Jefferson Parish Council and Section 955 (C) requires the opportunity to all parties to conduct such cross-examination as may be required for a full and true disclosure of the facts. The action of the Jefferson Parish Council in refusing the right of cross-examination is in violation of that act.

Additionally, counsel for appellant has referred us to authorities which convince us that the denial of right of cross-examination constitutes a denial of constitutionally mandated due process of law. At issue here is a valuable property right, i. e., the right of an owner to use his property as he sees fit, and the requirement of the Parish that he expend a large sum of money, in excess of $17,000.00, in order to fill it to the grade selected by the council is an interference with those rights to somewhat the same degree as condemnation and expropriation cases. We cite with approval the following:

“The right to confront and cross-examine witnesses is a fundamental aspect of procedural due process, and such right applies not only in criminal proceedings, but also in noncriminal proceedings, including administrative or quasi-judicial proceedings. * * *” See 16A Am.Jur.2d, Constitutional Law, § 849, p. 1062 et seq.

A similar principle is approved in the cases of Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843 at page 1852, 23 L.Ed.2d 404 (1969), and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 at page 1021, 25 L.Ed.2d 287 (1970).

Accordingly, we reverse the judgment appealed from and order this matter remanded for another hearing before the Jefferson Parish Council at which Michael E. Corcor-an will be permitted to cross-examine the Parish’s witnesses, and for such other proceedings as may be appropriate.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    EDWARD N. FRAICHE, INC. v. Lawrence L. LAGARDE, Sr. d/b/a Plantation Golf & Country Club.
    No. 12081.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Rehearing Denied Nov. 20, 1981.
    Nathan Greenberg, Greenberg & Dallam, Gretna, for Edward N. Fraiche, Inc., plaintiff-appellee.
    Lawrence L. Lagarde, Jr., New Orleans, for Lawrence L. Lagarde, Sr., d/b/a Plantation Golf & Country Club, defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

This is a suit by a contractor for the amount due under an oral plumbing contract. Judgment was rendered in favor of the contractor subject to some credits, and the owner has appealed.

During September, 1976, Lawrence L. La-garde, Sr., entered into a cost plus oral contract with Edward N. Fraiche, Inc., for certain heating and plumbing services to be performed on the premises known as Plantation Golf and Country Club in Jefferson Parish. Payment for the services performed were to be made by Lagarde on a monthly basis. Disputes arose between the parties resulting in Lagarde’s refusal to pay the balance claimed to be due. Fraiche, Inc., sued for the balance due and Lagarde answered and filed a reconventional demand claiming damages. The trial judge rendered judgment in favor of Fraiche, Inc., for $9,748.33, subject to a credit in favor of Lagarde in the amount of $1,283.64. Lagarde has appealed.

As noted, this suit involves an oral contract and the first dispute between the parties is the terms thereof. Each party testified and produced witnesses to support his contention. The trial judge found that there was an oral contract between the parties originally for cost and material plus twenty per cent and later reduced to fifteen per cent, and that the plumbers were to be paid $18.00 an hour and helpers were to be paid $7.00 per hour. In the event there was both a helper and plumber on the job, the pay was $25.00 an hour. The issue is a simple one of credibility of the witnesses and the trial judge has obviously resolved that question in favor of the contractor. Additionally, it should be noted that the billing for the periodic payments supported the position of the contractor. We find no error in the judge’s findings and accordingly agree.

It is apparent from the record that although this contract was to be based upon the labor and materials furnished, that the records were rather loosely kept and there is considerable confusion in arriving at a precise figure. Basically, the trial judge granted Fraiche, Inc., a judgment for the amount that it finally concluded was due, but found that there were some errors for which credit should be granted, explaining each credit, and granting a total of $1,283.64 in credits. Lagarde contends that there are other items which are apparent on the face of the invoices and other documentary proof showing other credits to which he is entitled. Of these, we consider it necessary only to discuss two.

The first of these purported errors is that one of the invoices from a supplier, Pelican Plumbing Supply, Inc., No. G 41154, shows that Fraiche, Inc., was charged $779.62 ($750.00 plus sales tax) for copper nails, which amount Fraiche, Inc., then charged to Lagarde. It was later discovered that the unit price for the copper nails was billed $3.75 each rather than the correct price of 3.75 cents each. Pelican later issued a credit to Fraiche, Inc., for the difference amounting to $779.62. It is La-garde’s contention that this credit was never granted by Fraiche, Inc., to Lagarde, thus Lagarde was overbilled and paid that amount.

We conclude that the trial judge erred in not granting this credit. The documents in evidence show that the charge was made for nails in the statement rendered by Fraiche, Inc., to Lagarde dated March 23, 1977, which included the period, according to Fraiche, Inc., from February 3 through March 21. The later billing by Fraiche, Inc., its statement of June 7,1977, including the period March 22 through May 27, shows that no credit was granted. The only explanation offered by Fraiche, Inc., is that it did not bill the amount of that invoice in its June bill and thus, in effect, gave the credit by not billing that amount. Its records show otherwise and that the billing was made in the March 24 statement. Accordingly, Lagarde is entitled to a credit in this amount.

The other error which we comment upon is a charge of $300.00 for gravel, which Lagarde contends should only be $119.00, an overcharge of $171.00. The basis for this contention is a back-up note of Fraiche, Inc., reflecting that on October 29, 1976, Fraiche, Inc., paid Louisiana Industries only $119.00 for gravel. The record contains some evidence that there were two delivery dates of gravel, and although Fraiche, Inc., has no invoice from Louisiana Industries to show the amount of gravel delivered and the price therefor, there is testimony in the record that the gravel was delivered and used on the premises, and that the total price was $300.00. The trial judge apparently believed the testimony to that effect, and we cannot say that he is in error. There is no proof as to the total amount of gravel that was used, nor is there anything showing that the notation of $119.00 payment was for the total amount of gravel delivered. We cannot say that the trial judge was in error.

In addition to these two items, the appellant has contended that there are numerous defects in the work that was done, that some items were removed from the job site without credit to him, that there were delays by the plumbing contractor which caused him damages, that there were inefficiencies in the work done and a number of the items were installed in the wrong location necessitating a change, that there were labor over-charges and finally that there was structural damage to his building by the plumber’s operations. We have considered all of these complaints and have examined this rather voluminous record in detail to ascertain the correctness of the trial judge’s ruling that Lagarde was not entitled to credit for any of these items, nor was he entitled to damages in his reconven-tional demand.

Our examination of the record convinces us the trial judge was correct in his rulings. It is apparent that most of the difficulties that arose on this job were due to the fact that there were no detailed plans which would regulate the precise nature of the plumbing work. In the main, these issues resolve themselves into a credibility determination between the testimony of Mr. Lagarde, Mr. Carroccio (the general contractor) and Mr. Arnold (Mr. Lagarde’s son-in-law) on the one hand and the Fraiche Brothers and their employee on the other hand. The trial judge resolved this issue of credibility by adopting the testimony offered on behalf of Fraiche, Inc., and we cannot say that he is in error. It is axiomatic that in questions of credibility the findings of the trial judge are to be adopted unless we can show manifest error is present. In support of this finding, we point out that a considerable portion of the evidence sought to be introduced by La-garde was hearsay in nature, based upon the statements of other persons. Similarly, we note the lack of expert testimony to support the defendant’s contentions, especially those as to the amount of labor necessary to do particular jobs. After considering the various documents introduced into evidence, as well as the testimony of the witnesses on behalf of Fraiche, Inc., the trial court concluded that a prima facie case of recovery had been established. The trial judge found that Lagarde’s attempt to disprove the facts demonstrated by plaintiff were inadequate, and rendered judgment accordingly. With the sole exception of the charge for the copper nails discussed above, we agree. Accordingly, it is ordered, adjudged and decreed that the judgment appealed from be amended to show an additional credit due the defendant in the sum of $779.62, and as thus amended, the judgment is affirmed. The cost of this appeal is to be borne equally by each party.

AMENDED AND AFFIRMED.


author: CHEHARDY, Judge.

text:
    Lloyd D. FORTMAYER v. Donald SCHULINGKAMP.
    No. 12109.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Rehearing Denied Nov. 20, 1981.

      A. D. Barnes, Jr., New Orleans, for plaintiff-appellant.
    Adelaide Baudier, Metairie, for defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Lloyd D. Fortmayer, appeals a district court decision in favor of defendant, Donald Schulingkamp, maintaining the defendant’s exception of prescription and dismissing the plaintiff’s suit at his costs. In his judgment on this action for reduction in purchase price of a residence, the trial court judge noted that the exception of prescription was well-founded inasmuch as the house was purchased on June 14, 1976 and this petition was not filed until July 28, 1977.

Although the exception of prescription was timely filed by the defendant, the district court referred it to the merits of the case. At a trial on the merits the plaintiff testified that he purchased the residence which is the subject of this case from the defendant on June 14, 1976 for the sum of approximately $44,500 and that he had inspected the residence prior to the sale. He said that at that time he did not notice any cracks around the windows, doors or in the brick walls surrounding the house. He testified further that on the night of September 1, 1976, while he was in bed in the master bedroom of the house, he heard a loud noise like an explosion, crash or thunder. He stated upon inspection the next morning he found cracks by the window on the north side and also some on the left side of the house. Photographs of these cracks are part of the record before this court.

The defendant testified he acquired the property in question sometime during the 1950s and that in 1970 he added on “the back, the den and that little bedroom back there.” He also stated that when the property was sold to the plaintiff in 1976 its condition was good and there were no cracks or other settlement of the property. He stated the slab of the addition was laid approximately an inch or an inch and a half lower than the rest of the house to allow room for shag carpeting; but he said the floor was level although there were no pilings under the addition. The defendant also said he had obtained a building permit from the City of Gretna at the time he constructed the addition.

Walter Bonie, accepted by the court as an expert in the field of architecture and engineering, testified he examined the house and structure in question and took differential levels which were introduced as part of an exhibit in the case. His finding was that there was approximately a one- and one-half-inch differential in elevation from the rear of the addition to the portion of the addition which is attached to the home. He also concluded this differential was not intentional but the result of the foundation settling after construction was completed. He added that proper installation of pilings, a proper slab and proper gradings would have prevented the droppage. He said he had also examined the grade beam beneath the foundation of the addition and found the depth of the grade beam on the original building to be 20 inches, whereas the depth of the grade beam on the addition was only 10 inches. He said in his opinion the depths of the two grade beams should have been the same.

Eld Wetzel, accepted as an expert in the field of general construction and contracting, said the Veterans Administration requirement for residential construction of a brick veneer type, where piling is not required, is that the grade beam should be 24 inches deep, 16 inches wide, with steel rods reinforcing. He also said the damage done to the structure could not be repaired but he would have to replace the whole structure at an estimated cost of $21,600 plus a 15-percent increase from the date of the estimate to the trial date.

Berkley Traughber, accepted by the court as an expert in structural, geotechnical and civil engineering, stated that, upon inspection of the structure, he found a difference in settlement of one and one-half inches between the northeast and northwest corners. He also said he found two Vs-inch crack openings in the masonry where the mortar joints were separated.

Traughber said he did not consider his finding to be major damage and he would only repair by insertion of mortar to the joints. He stated he believed the settlement was at a standstill, but admitted he would not advise construction of an addition on a house using only a 10-inch grade beam when there was a 20-inch grade beam under the main structure.

Plaintiff contends on appeal that the district court judge was in error in dismissing his case on the ground that it had prescribed. He argues his suit was filed within one year of the discovery of the hidden defect in the addition and, therefore, was within the limitations of LSA-C.C. art. 2534. He further argues that because the defendant owned the house at the time the addition was added and admitted he knew there were no pilings under it, he is presumed to have knowledge of any defects in the structure.

We cannot agree, and we affirm the district court decision.

LSA-C.C. art. 2534 states a redhibitory action must be instituted within a year at the farthest, commencing from the date of the sale. The article adds that this limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.

LSA-C.C. art. 2541 provides that whether the defect in the thing sold be such as to render it useless or altogether unsuited to its purpose or whether the defect in the thing sold be such as to merely diminish the value, the buyer may limit his demand to a reduction of price. However, LSA-C.C. art. 2544 establishes that an action for reduction of price is subject to the same rules and the same limitations as the redhibitory action.

Apparently the district court judge determined, as does this court, that the “defect” shown by the testimony was the insufficiency of the grade beam used in the addition. All experts agreed, in fact, that a beam comparable to that used in the main structure should have been employed. From the testimony of the experts, however, we cannot conclude that the failure to employ pilings as support for the addition was necessarily a defect in the construction. It was not shown by any of the testimony, however, that the defendant was actually aware of any such defect as the difference in beam sizes under the main part of the house and the addition.

Although the plaintiff cites Aucoin v. Fontenot, 334 So.2d 773 (La.App. 3d Cir. 1976), in support of his request for reduction of price, we find this case to be distinguishable on its facts from the present one. In Aucoin, supra, the plaintiff sued for diminution after the slab piping in the building sold to him developed massive leaks to the end that all slab piping had to be abandoned. Testimony adduced at the trial on the merits indicated the defendant was aware that galvanized iron water pipes were located beneath the floor of the building and that they were not replaced when he remodeled it. The plaintiff, moreover, testified the defendant had assured him that all of the water piping was copper; the plaintiff’s statements in this regard were confirmed by his contractor, who said he had instructed the plaintiff to obtain this information from the defendant. Consequently, the district court judge rejected the defendant’s claim that he was not aware of any defect in the building, and the appellate court did not hold the trial court was in manifest error in reaching its factual conclusions. In the present case, however, as noted above, it was not established the defendant actually knew the beam used under the main house differed in size from that used in construction of the addition.

Nor can this court find merit in the plaintiff’s argument the defendant in the present case must be presumed, under jurisprudence, to have known of the defect, citing the cases of Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952); Brown v. Dauzat, 157 So.2d 570 (La.App. 3d Cir. 1963); and Hermeling v. Whitmore, 140 So.2d 257 (La.App. 1st Cir. 1961). In those cases the vendors of the structures were presumed to have had knowledge of the vice of the dwellings or residences sold since they were built and constructed by the defendant contractors.

In explaining the authorities employed in reaching this legal conclusion, however, the court explained in Tuminello v. Mawby, supra, at 668-669:

“Under the French law as well as under the jurisprudence of this state the artisan, craftsman, builder, or manufacturer is presumed to know of the vice or defect in the article he constructs, manufactures, or builds.
“In Templeman Bros. Lumber Co., Inc., v. Fairbanks, Morse & Co., 129 La. 983, 57 So. 309, 315, this court overruled a plea of prescription of one year under Article 2534, and in permitting plaintiff, the purchaser of an engine, to recover had this to say with reference to knowledge of the defect in the vendor: ‘The vice in the present case consisted in the inadequacy of the gas producer, and in the defective installation of the machine. Of both of these defects the defendant must be held to have had full knowledge. The manufacturer of a machine is held to the knowledge of even latent defects * * *; and the inadequacy of the gas producer must be held to have been patent to the defendant, though not to the plaintiff, since plaintiff was not supposed to have, and, in fact, had, no special knowledge of machinery. And the defendant must also be held to have known that the engine had been defectively installed. It was its duty to know it, and it had full opportunity to know it. It must, therefore, be presumed to have known it. * * * ’
“In the case of Doyle v. Fuerst & Kraemer, Ltd., 129 La. 838, 56 So. 906, 907, 40 L.R.A.,N.S., 480, plaintiff instituted an action for damages for a vice in certain goods sold under Article 2545, and this court in discussing the knowledge of the defendant that the goods sold by it were defective said: ‘The principle which governs in this case is that every one ought to know the qualities, good or bad, of the things which he fabricates in the exercise of the art, craft, or business of which he makes public profession, and that lack of such knowledge is imputed to him as a fault, which makes him liable to the purchasers of his fabrications for the damage resulting from the vices or defects thereof which he did not make known to them and which they were ignorant of.’
“The court therein quoted as follows from the French commentators:
‘From Pothier, Vente, § 214:
‘ “There is a case where the vendor, although he was entirely ignorant of the vice of the thing sold, is nevertheless bound to repair the damage which this vice may have caused the vendee in his other property; it is the case where the vendor is a workman or a merchant who sells the fabrications of the art or trade of which he makes profession. Such workman or merchant is bound to repair whatever damage the buyer may have suffered from the vice of the thing sold in putting it to the use for which it was intended, even if such workman or merchant should pretend to have been ignorant of said vice.
‘ “The reason is that a workman, by reason of the profession which he makes of being skilled in his craft * * * (makes the solemn promise, or gives the solemn pledge, of his proficiency in his art). He renders himself responsible towards all those who contract with him, for the things he makes being fit for the use to which they are naturally destined. His unskillfulness or lack of knowledge in all that concerns his art is a fault which is imputed to him, as no one should publicly make profession of an art if he is not possessed of all the knowledge necessary for exercising it well; * * * (incompetency is reckoned a fault). Dig.L. 132, Reg. Juris.”
‘From Dalloz, Codes Annotes, art 1645, Nos. 15, 16: '
‘ “But there is an hypothesis under which the purchaser will not be required to make this proof (the proof that the vice was apparent, or that the vendor had knowledge of it). It is where, by reason of the profession which he exercises, the vendor should have known even the hidden defects of the things he sells.
‘ “Thus, even though the vendor was ignorant of the vices of the thing sold, if by his profession he was bound to know them, he is in fault and ought to indemnify the purchaser for the damage suffered; good faith does not exclude ineom-petency’ — citing * * * Baudry-Lacantin-erie & Saignat, Vente, No. 436.
‘This last reference, loe. cit., reads as follows:
‘ “However, it is generally conceded that the vendor is presumed to know the vices of the thing sold when he is a workman or manufacturer selling the things of his own fabrication ; he ought to know their defects, and, if he makes the sale without revealing these defects to the purchaser, he ought to repair the damage which the latter may suffer therefrom; he ought to know what he sells, since it his own production, and, if he does not know it, there is on his part an incompetency which is a professional fault whereby he is rendered responsible for the damage.” ’
“In the case of George v. Shreveport Cotton Oil Co., 114 La. 498, 38 So. 432, 434, this court in discussing the knowledge of the vendor of the vice or defect of the thing sold stated: ‘We are of the opinion that the doctrine announced in [Kellogg Bridge Co. v. Hamilton] 110 U.S. [108], 3 S.Ct. [537], 28 L.Ed. [86] (the same as that expressed by Laurent) is conservative, and that a manufacturer who disposes of the things which he himself has manufactured can properly and legitimately be held presumptively to a knowledge of the qualities of the things he sells; and we apply that presumption to the case before us.’ ”

It was not established by the plaintiff that the defendant in the present case acted as his own contractor in the construction of the main residence or the addition or that Schulingkamp can be considered a vendor-contractor in the sense that this term is used in the cases cited by the plaintiff. The defendant cannot, therefore, be presumed to have known of the defect existing in the addition. For these reasons, the plaintiff’s cause of action was prescribed when it was filed on July 28, 1977, more than one year subsequent to the purchase of the residence.

The district court decision is affirmed.

AFFIRMED.


text:
    Emmette J. GREMILLION v. BABST SERVICES, INC., and U. S. F. & G. Insurance Company.
    No. 5-10.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Rehearing Denied Nov. 20, 1981.

      Kronlage, Dittmann & Maselli, Albert S. Dittmann, Jr., New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, S. Frazer Rankin, New Orleans, for defendants-appellees.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiff, Emmette Gremillion, appeals a district court decision in favor of defendants, Babst Services, Inc., et ais., and against the plaintiff, dismissing his claims for workmen’s compensation benefits at his costs.

As part of his judgment, the trial court judge stated:

“Petitioner Emmette Gremillion contends that he is totally and permanently disabled due to the inhalation of carbon monoxide fumes while he operated a machine called a ‘cherry picker.’
“The machine did not have a cab, and Mr. Gremillion sat on one end while the exhaust was at the opposite end, at least 10 feet away.
“After considering the testimony of the various witnesses, medical and otherwise, the Court cannot conclude that Mr. Grem-illion proved that his disability, whatever it is, was causally related to his operation of the ‘cherry picker’.
“The preponderance of the medical evidence indicates that Mr. Gremillion is hypertensive and has borderline retardation of long standing but no organic brain damage due to his employment.”

At a trial on the merits of the case the plaintiff testified that on December 11, 1974 he was employed by Babst Services, Inc., as a heavy equipment operator, and specifically he had been operating a piece of machinery or vehicle commonly called a “cherry picker” for a year and a half or two years prior to his disability. He described it as having four rubber wheels and a boom, and he stated it used gasoline as fuel. He added that the machine had no cab for the driver, nor did it have a windshield.

The plaintiff testified he operated the machine five days a week, eight hours a day, sometimes also doing “a lot” of overtime. When asked about the condition of the cherry picker, Gremillion said it smoked a lot and that smoke would come from both sides and whichever way the wind would be shifting “sometimes it would come right up in your face from the bottom.”

The plaintiff further testified that on December 10, 1974 he started feeling weak, was making a lot of mistakes, and he assumed he must have passed out because he urinated on his clothes. He added that on December 11, 1974 he began to feel weak and dizzy and left work, later passing out on the highway and subsequently calling his wife who took him to a hospital.

Dr. Joseph Braud, a general practitioner, testified that on examining the plaintiff in the emergency room of Flint-Goodrieh Hospital on December 11, 1974 he found him to be apprehensive, confused and talking irrationally; that he had difficulty walking; and that he had multiple complaints in reference to his head, back and legs. He said he received positive findings on the Babin-ski test done on the plaintiff indicating some neurological damage, but that a skull x-ray and electroencephalogram were normal. He felt at the time that the plaintiff had an acute brain syndrome. The doctor added that plaintiff’s blood pressure was 160 over 120.

Dr. Braud had continued to see the plaintiff over the intervening years and up until the time of trial. He noted that Gremil-lion’s generalized complaints of nervousness, headaches, dizziness, pain in his back and upper legs continued. Dr. Braud opined that the plaintiff was in need of maintenance and supportive therapy on an indefinite or perhaps a permanent basis and explained he has treated him with various tranquilizers, muscle relaxants, as well as medications for the headaches and dizziness. As of June 1976 Dr. Braud’s reports indicated he thought Gremillion may have a conversion reaction and should be evaluated by a psychiatrist. He also said that based on the history of his condition, he felt in all probability the plaintiff had had a reaction from inhaling toxic fumes and, subsequently, his acute brain syndrome led into a conversion type of reaction. This physician did not feel the plaintiff would ever be able to work again.

Dr. Charles Moan, a clinical psychologist, testified he had examined and tested the plaintiff and the overall results of the testing indicated a person of borderline intelligence who seemed to be displaying no specific brain damage, no localized brain damage, but that borderline retardation was found indicating a generalized organic problem. Dr. Moan stated he did not test the plaintiff for a conversion reaction nor did his testing rule out his having had an acute brain syndrome in December of 1974.

Dr. Robert Davis, a psychiatrist, evaluated the plaintiff on three occasions in 1976, 1977 and 1979 and testified there was evidence of organic brain dysfunction manifested primarily by his confusion and disorganization. He stated the findings of a CAT scan, a sophisticated x-ray of the brain, which he ordered for the patient to undergo, was normal. He also stated that when he received the results of a neurological examination done by Dr. Maria Palmer he revised his diagnosis to a conversion reaction, a psychological response to stress which is a type of neurotic mental illness. Dr. Davis also said that assuming Gremil-lion had had an acute brain syndrome, such a severe stress could trigger off the conversion reaction. He also stated that, in his opinion, the plaintiff was disabled to the extent he could no longer be a heavy equipment operator.

Dr. Palmer, a neurologist, testified that when she examined the plaintiff in January of 1977 her impression, from his history and symptoms, was that he had been exposed to something that had caused him to have an acute organic brain syndrome which was characterized by the headaches and confusion and passing out. She added that exposure to carbon monoxide can be cumulative, depending on how severe it is.

Dr. Raeburn Llewellyn, a neurosurgeon, testified he examined the plaintiff in May of 1975. At that time, he said he was impressed with his uncomfortableness, felt that he was incapacitated and should have hospitalization. He also said the symptoms he found in the plaintiff at that time could have been precipitated by inhalation of fumes in December of 1974, although he stated a problem such as that falls within the specialty of the medical neurologist.

Dr. Tom Oelsner, an expert in the field of internal medicine, said he examined Gremil-lion in May of 1976. In regard to whether the symptoms exhibited in the past and at the time he saw the plaintiff could be due to any toxic substance which he inhaled, the physician explained:

“Well I think that sufficient exposure to gasoline exhaust fumes can produce some of these symptoms on an acute basis. That is if one gets sufficient carbon monoxide in particular then one can be overcome by it and actually lose consciousness but prior to losing consciousness one might develop dizziness and headaches and ultimately confusion and ultimately lose consciousness. However, once the patient is removed from the exposure to these exhaust fumes and provided he survives the exposure to the exhaust fumes then the carbon monoxide are exhaled over the succeeding time usually a maximum of twenty-four hours so the symptoms should be gone. The fact that he was never overcome by the fumes during exposure would indicate to me that the symptoms that he was experiencing subsequent to the exposure are not related to it. In other words, the worse symptoms are during exposure and they would diminish with the passage of time. In his case his symptoms were less severe during exposure and got worse on his way home.”

Dr. Oelsner further said that assuming the plaintiff had exposure to carbon monoxide in open atmosphere he doubted he would get significant symptoms at all. Relative to his being exposed outdoors, he said he would have to question whether something else was causing his illness.

Dr. William Martin testified he examined the plaintiff in January of 1979 and found very little evidence to suggest a significant organic brain syndrome. He said if a man had enough exposure to carbon monoxide to cause an organic brain dysfunction or damage to a brain, then an electroencephalogram ought to show that, particularly if it were taken on the same day as the injury. He added most Babenski signs are unreliable. He also said the effect of inhalation of fumes cannot be a cumulative thing unless he was continuously working for 24 hours a day because if exposure is interrupted the carbon monoxide is replaced with oxygen.

The plaintiff’s wife confirmed Gremil-lion’s description of the events of December 11, 1974 and she also testified he was in perfect health before that date.

Emile Babst of Babst Service, Inc., testified the machine operated by the plaintiff did not smoke abnormally. He said Gremil-lion came to see him some weeks or months after he left his employ and seemed depressed. Although he was having a lot of financial problems, the plaintiff was not sick and did not mention that he had inhaled any fumes from machinery.

Bulton Brindall, superintendent on the job where Gremillion was working in December of 1974, stated the gas-operated machine used by the plaintiff did not smoke excessively and he did not receive complaints in that regard. He said he had received complaints from the plaintiff’s coworkers about mistakes he was making on the job. He also said when he called the plaintiff in, Gremillion stated the doctor had suggested he take several weeks off and that was the last time Brindall ever saw him. Harry Kovner, another superintendent at Babst in December of 1974, also testified the machine used by Gremillion was completely open, without a windshield, and that he knew nothing of the machine smoking excessively.

Edward A. Coon, Jr., the foreman on the job worked by Gremillion at the time of his illness, testified the machine used by the plaintiff did give off an excessive amount of smoke, that either the muffler or pipe was broken on it, and also that the smoke had a tendency to blow over the machine; however, he also said, contrary to the statements of the plaintiff and all other witnesses in this regard, that the machine had a front windshield.

In the recent case of Lindsey v. H. A. Lott, Inc., 387 So.2d 1091, 1092 (La.1980), the court stated:

“As in any other civil suit the plaintiff in a workmen’s compensation action has the burden of establishing his disability and the causal relation between it and the accident by a preponderance of the evidence. This court has held, however, that a claimant’s disability is presumed to have resulted from an accident if, before the accident, the injured person was in good health, the symptoms of the disabling condition appearing after the accident and manifesting themselves continuously afterwards, providing there is a reasonable possibility of causal connection between the accident and the disabling condition. Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977); Gradney v. Vancouver Plywood Co., 299 So.2d 347 (La.1974); Johnson v. Travelers Insurance Co., 284 So.2d 888 (La.1973).”

In that case, moreover, the court also said at 1092-1093:

“As noted above, if a plaintiff in good health continually suffers from a disabling condition after an accident, and there is a reasonable possibility that the accident caused the condition, the condition is presumed to have been caused by the accident. In this case the evidence is uncontradicted that the plaintiff had no problems with his hand and arm before the accident, but that afterwards he was in continuous pain. The medical testimony was clearly to the effect that the accident was at least a reasonably possible cause of the condition for which the plaintiff was diagnosed. It was therefore error for the trial court to fail to apply the well established presumption that such conditions are caused by the incidents which they follow. We conclude that the plaintiff has met his burden of proving by a preponderance of the evidence that his disabling condition was caused by the accident he suffered while in the employ of the defendant.”

The court specifically noted in Lindsey v. H. A. Lott, Inc., supra, however: “In this case it is not disputed that the plaintiff had an accident while on the job, which he reported to his superiors.”

In this case of Prim v. City of Shreveport, 297 So.2d 421 (La.1974), the court also made the following statement at 422:

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971); Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286 (1965); Hogan v. T. J. Moss Tie Co., 210 La. 362, 27 So.2d 131 (1946); White v. E. A. Caldwell Contractors, Inc., La.App., 276 So.2d 762 (1973); Richard v. Guillot, La.App., 271 So.2d 719 (1972); Nellon v. Harkins, La.App., 269 So.2d 542 (1972).” (Emphasis ours.)

Our reading of Prim v. City of Shreveport, supra, in combination with statements made by the court in the Lindsey case, therefore, leads us to conclude that in a workmen’s compensation case there are two separate issues to be addressed, i. e., whether an employment accident occurred and, additionally, whether it had a causal relation to the disability. Although, as noted in the Lindsey case, a claimant’s disability is presumed to have resulted from the accident if, before the accident, the claimant was in good health, this presumption does not relieve a claimant from the additional burden of showing that, more probably than not, an employment accident of some kind did occur. Prim v. City of Shreveport, supra.

As noted above, there was some medical testimony that exposure to carbon monoxide can be cumulative and there was also some medical testimony the plaintiff evidenced organic brain dysfunction. Contrary to what was said by Brindall, Babst and Kovner, there was also testimony by the plaintiff and his foreman, Coon, that the machine did smoke excessively. However, as the court aptly stated in Southern Bell Tel. & Tel. Co. v. Roy Cook & Sons, Inc., 218 So.2d 404 (La.App. 2d Cir. 1969) at 407:

“It is a well settled principle that the trial judge’s findings on questions of fact, and particularly questions involving credibility of witnesses who testify before him are entitled to great weight on appeal and will not be disturbed unless clearly erroneous. Barlotta v. Walker, 223 La. 157, 65 So.2d 122 (1953); Fairman v. Robert, La.App., 181 So.2d 459 (1st Cir. 1965); United Public Insurance Company v. Levy, La.App., 154 So.2d 80 (4th Cir. 1963). Even when the trial judge makes no written findings of fact the resolution of conflicting testimony is necessarily made in rendering judgment and the presumption of correctness applies with equal force. Rembert v. Bonvillain, La.App., 202 So.2d 320, 323 (1st Cir. 1967); Dupuy v. Iowa Mutual Insurance Company, La.App., 113 So.2d 830, 832 (1st Cir. 1959); Fruge v. White, La.App., 125 So.2d 426, 427-428 (3rd Cir. 1960).”

The testimony of Dr. Oelsner and Dr. Martin, as well as the testimony that the machine did not have a cab, in combination with testimony from Brindall, Babst and Kovner that the machine did not even smoke excessively, all strongly support the district court’s conclusion the plaintiff failed to establish that more probably than not there was an employment accident, in spite of the fact it was established the plaintiff did become ill while he was employed by Babst Services, Inc.

For the reasons assigned, the trial court decision is affirmed.

AFFIRMED.


author: KLIEBERT, Judge.

text:
    Dudley Johnnie MEAUX, Jr. v. Jessie ALEXANDER, Ben Groil, Tom Hicks Transfer Company, Inc., and the Ranger Insurance Company.
    No. 12087.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    Rehearing Denied Nov. 20, 1981.

      Gerald T. LaBorde, New Orleans, for plaintiff-appellee.
    E. Phelps Gay, Christovich & Kearney, New Orleans, for defendant-appellee.
    Raymon G. Jones, Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

In September, 1975, Dudley Johnnie Meaux, Jr. (hereafter Meaux), an employee of G. & T. Crane Service, Inc., was injured when he crawled beneath a tractor-trailer, owned by Tom Hicks Transfer Company, to unhook a shackle, owned by G. & T. Crane Service, Inc., which had been used to lift the lowboy tractor-trailer from a “stuck” or “hung-up” position on a bridge.

Tom Hicks had rented a crane, owned by G. & T. Crane and on which Meaux was a helper, to assist in the unloading of a large vessel or tank from a railroad car onto a lowboy trailer and in moving the trailer across Peters Road and, thereafter, to unload the lowboy trailer and assist in setting up the vessel in Tom Hicks’ yard in Harvey, Louisiana. In the process of moving across Peters Road, the lowboy trailer, being pulled by a truck tractor, became “stuck” or “hung up” on a bridge. G. & T. Crane’s employees refused to use the rented crane to pull the tractor-trailer from its stuck position. Employees of Tom Hicks obtained and used one of their cranes with a sling and shackles loaned by G. & T. Crane to pull the lowboy from its “stuck” position. After the tractor-trailer became unstuck, but while the Tom Hicks crane was still tied onto the tractor-trailer, Meaux, along with other employees of G. & T. Crane, crawled underneath the tractor to unhook the sling and shackles. While Meaux was in the process of unhooking the shackles, the tractor-trailer moved, causing the tires of the tractor-trailer to roll over Meaux’s lower extremities.

Meaux brought this suit in tort against Tom Hicks Transfer Company; Jessie Alexander, the employee of Tom Hicks who was operating the tractor-trailer; Ben Groil, the employee of Tom Hicks who was the operator of the Tom Hicks crane; and their insurers. Continental Insurance Company (hereafter Continental), the workmen’s compensation carrier for G. & T. Crane intervened seeking reimbursement for compensation benefits previously paid and being paid to Meaux. In defense, the alleged tort-feasors contended Meaux was a “statutory employee” or a “borrowed employee” of Tom Hicks; hence, the Louisiana Workmen’s Compensation Act barred this suit and additionally pled contributory negligence on the part of Meaux as a bar to recovery in tort. Motions for summary judgment based on the “statutory employee” and “borrowed employee” defenses were heard and denied by the trial judge.

On the date set for the trial on the merits, Meaux stipulated in the record a settlement of his claim with the alleged tort-fea-sors and their insurers. When the settlement agreement was consummated, he filed a motion to dismiss his claims against the defendants; i. e., Tom Hicks and his employees, Jessie Alexander and Ben Groil and their insurers. The intervening compensation carrier, Continental, elected to try his claim against these defendants rather than settle. After two days of trial, Continental obtained a continuance, and in the interim, amended its petition in intervention, made Meaux a defendant, and claimed a right to reimbursement out of the settlement proceeds received by Meaux.

Based on the factual findings that Meaux was a statutory employee of Tom Hicks and contributorily negligent, after trial the district judge dismissed the intervenor’s claims and pursuant to the motion filed by the plaintiff for a dismissal (at the time the settlement was consummated), dismissed all of Meaux’s claims against the defendants. The intervenor appealed.

Under R. S. 23:1061, the principal for whom a contractor is performing work which is part of the principal’s “trade, business or occupation” is liable to the contractor’s employees for compensation benefits. Hence, under R. S. 23:1032, the injured employee’s remedy for injuries incurred while performing the work of the principal is exclusively in compensation as to the principal (his statutory employer) and the contractor (his payroll employer). At the time of Meaux’s injury in 1975, to fall within the purview of these statutory provisions, the contractor’s employees must have been engaged in an activity which is part of the principal’s business with the following essential elements being present: (1) The relationship of principal-contractor (as distinguished from some other relationship, such as vendor-vendee) must exist; (2) A contract between the principal and the contractor for the whole or a part of the work being undertaken by the principal must exist; (3) The work which is the subject of the contract must be part of the principal’s trade, business or occupation; and (4) The contractor’s injured employee must be engaged in this work when injured. See Vincent v. Ryder, 352 So.2d 1061 (La.App. 3rd Cir. 1977) and the cases cited therein.

According to the testimony of Mr. Joseph Chimento, the yard superintendent of Tom Hicks, corroborated by other employees of Tom Hicks and G. & T. Crane, it was part of the regular day-to-day work at Tom Hicks Storage Yard in Harvey, La., for Tom Hicks’ employees, using Tom Hicks’ cranes and trucks, to unload and/or move equipment or pipe from the freight cars or the storage yard on one side of Peters Road to the storage yard on the opposite side of Peters Road. On the particular move involved here, it was essential to Tom Hicks’ business to move the vessel and to free the truck which got “hung up” in the course of making the move. The G. & T. Crane Service was contracted to assist in making the move involved here because none of Tom Hicks’ cranes were large enough to handle the weight of the particular vessel being moved and Tom Hicks had a working agreement with G. & T. Crane for G. & T. Crane to supply cranes and helpers for a stated price when called upon to do so. The employees of G. & T. Crane manning the crane were under the control and direction of Tom Hicks’ employees.

Given these facts, we believe the trial judge had sufficient evidence on which to conclude Meaux was the “statutory employee” of Tom Hicks. The arguments advanced by the appellant as to the existence of a vendor-vendee relationship between Tom Hicks and G. & T. Crane, as well as appellant’s argument that the work being done was not part of Tom Hicks’ trade, business, or occupation, are not supported by the evidence in the record. Upholding the trial court’s finding that Meaux was a statutory employee of Tom Hicks bars Meaux’s recovery from Tom Hicks and, likewise, bars the intervenors’ claims against Tom Hicks. The trial judge also concluded that Meaux was contributorily negligent and, therefore, dismissed the in-tervenors’ claims against Tom Hicks’ employees and their insurers. In our view there is ample basis in the record to support his actions.

As pointed out by the trial judge, it is difficult to pin the cause of the accident on any one person, but it is evident that Meaux was among the individuals who contributed to his own accident. Mr. Chimento denies he authorized or instructed anyone to commence unshackling the truck-trailer. It is unclear whether Gus LeBourgeois asked or told Meaux to get beneath the truck. Everyone, including Meaux, however, admitted the slings could have and should have been unshackled from the crane before attempting to unshackle the sling from the lowboy trailer. Meaux admitted he placed himself in a position of danger without speaking to the operator of the truck or of the crane and without determining whether the “unhooking” operation was completed. In essence, Meaux got beneath the truck to unshackle the lowboy believing it was safe to do so, where in fact, it was not.

While challenging the trial court’s finding of contributory negligence, the appellant contends the test of contributory negligence here should be that of a pedestrian-motorist similar to that applied in Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978). We do not agree. The Baumgartner decision does not apply to each and every case involving some type of motor vehicle. Baumgartner involved the duty owed by a motorist to a pedestrian crossing a city street. Here Meaux was an industrial worker assisting in the moving of a large vessel with the use of heavy equipment including a motor vehicle. Meaux, as well as the operators of the heavy equipment, had a duty to exercise reasonable and ordinary care in the performance of their work. Meaux voluntarily and knowingly exposed himself to the danger which resulted in his injury. Crawling beneath a tractor-trailer, with its motor running, while it is shackled to a crane with its motor running is a known and obvious danger. Had Meaux used ordinary care for his safety, he would not have been injured. Since Meaux was contributorily negligent, neither he nor the intervenor was entitled to recovery from Tom Hicks’ employees or their insurers.

This leaves for consideration the interve-nor’s right to recover from Meaux from the settlement proceeds he received from the tort-feasors. Although not developed in his brief, the appellant’s contention in this regard apparently stems out of his interpretation of R. S. 23:1103. Similar contentions were previously answered by the Supreme Court in Crabtree v. Bethlehem Steel Corporation, 284 So.2d 545 (La.1973) and by the First Circuit Court of Appeal in Roberson v. Fontenot Petroleum Co., Inc., 322 So.2d 287 (1st Cir. 1975), Writ refused, 325 So.2d 277. In the Crabtree case, at page 555, Justice Tate said:

“. . . sums received by way of compromise are not paid to satisfy a ‘legal liability to pay damages’, La.R.S. 23:1101, so as to be under the statutory scheme subject to apportionment between the employer and the employee.”

In essence, under the interpretation of the compensation act established by this line of jurisprudence, the injured employee and his employer have a claim against the tort-feasor and in the event of a favorable judgment against the tort-feasor, the employer has first preference for reimbursement of compensation benefits paid to the employee. Either party can file suit against the tort-feasor but upon filing must give notice and an opportunity to be heard to the other. No compromise with the tort-feasor by one party shall be binding upon or affect the rights of the other unless assented to by him.

Simply stated, in the present case, the injured employee elected to compromise his claim rather than gamble on a trial. The intervenor, however, elected to try his claim and lost. The intervening compensation carrier’s present contention that Meaux confessed judgment or consented to a recovery by the compensation carrier from the proceeds of his compromise at the time the judgment in the compensation case was entered into is not supported by the record. Accordingly, the judgment of the trial court is affirmed. All costs to be borne by the appellant.

AFFIRMED.


author: STOKER, Judge.

text:
    Carolyn Crowe GLASSCOCK, Plaintiff-Appellee, Blythe C. Glasscock, Intervenor-Appellant, v. Robert E. GLASSCOCK, Defendant-Appellee.
    No. 8395.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 14, 1981.
    Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, for intervenor-appellant.
    Simon & Dauterive, J. Minos Simon, Lafayette, for defendant-appellee.
    Gerald C. deLaunay, Lafayette, for plaintiff-appellee.
    Before CUTRER, STOKER, and LA-BORDE, JJ.
   STOKER, Judge.

Where a first wife brings an action seeking to nullify a judgment of divorce between herself and the defendant husband, is a second wife who married the husband after the judgment of divorce an indispensable party to the action? This is the threshold or preliminary issue in this case.

In this appeal the second wife also raised issues relative to the merits of the action of nullity but she did not have an opportunity to raise them in the trial court below. The first wife did not make the second wife a party to first wife’s suit to nullify the divorce decree. The action went to trial with the first wife and the husband as the only two parties. The trial court declared the divorce decree to be a nullity. The second wife then attempted to enter the case after the judgment of nullity. Upon being denied a hearing, the second wife appealed. The first wife and the husband are the appellees. The husband acquiesces in the nullity judgment and joins the first wife in resisting the second wife’s attempt to enter the case.

In order to give full consideration to the issues we must set forth the procedural history of the case in some detail.

Carolyn Crowe Glasscock (the first wife) and Robert E. Glasscock were married in 1967. Carolyn Glasscock obtained a judgment from Robert Glasscock on May 14, 1974. After the passage of one year and sixty days Robert petitioned for a divorce under the provisions of LSA-R.S. 9:302. A judgment of divorce was granted to Robert on September 15,1975. Subsequently Robert married Blythe C. Glasscock (the second wife) who is the appellant in the matter before us. In the judgment of separation of May 14, 1974, Carolyn was awarded custody of the minor child of her marriage with Robert, $300.00 per month as alimony, and $350.00 per month as child support. The divorce judgment of September 15, 1975, confirmed the custody award and the $300.00 per month alimony award and the $350.00 child support award.

On May 4, 1979, plaintiff-appellee brought a “Suit to Declare Community Property Settlement Null and for an Accounting”. The petition alleged that a “purported community property settlement agreement” entered into May 14, 1974, was null, void and unenforceable. The record before us does not indicate whether this suit was ever followed up. On July 24, 1979, Carolyn Glasscock brought an action by rule against Robert Glasscock seeking an increase in child support. Robert countered on November 2, 1979, with a rule seeking to terminate the alimony obligation owed to Carolyn. Carolyn then sought by rule to have the alimony increased. Her petition for the rule for increase in alimony was filed on November 28, 1979. All of the rules were consolidated for trial, and the trial court handed down reasons for judgment May 1, 1980, and a judgment was signed on May 5,1980. That judgment was the subject of the appeal in 398 So.2d 95 (La.App. 3rd Cir. 1981) in which we affirmed the trial court. The judgment increased child support from $350.00 per month to $600.00 per month and terminated the obligation to pay alimony to Carolyn applying the tests appropriate under LSA-C.C. art. 160.

Thereafter Carolyn Crowe Glasscock discovered what she considered to be a fatal flaw in the proceedings leading to the judgment of divorce rendered against her on September 15, 1975. She then brought the present action before us to have the divorce judgment declared a nullity.

In her suit to annul the divorce judgment (filed February 23, 1981) Carolyn named Robert as the sole defendant. Robert filed an answer in which he generally denied Carolyn’s allegations. The case went to trial and judgment was granted in Carolyn’s favor on March 2, 1981, declaring the divorce judgment of September 15, 1975, to be null and void. The grounds on which Carolyn sought annulment (and upon which it was apparently granted) were that the divorce had been taken by default judgment and the record reflected the entry of a preliminary default prior to the running of fifteen days from the filing of suit and acceptance of service by Carolyn Glasscock.

In the meanwhile difficulties had apparently arisen between Robert Glasscock and his second wife, appellant Blythe Glasscock. On March 9, 1981, (that is, after judgment annulling the divorce) Blythe filed a peremptory exception of nonjoinder of an indispensable party, namely herself. Blythe alleges in paragraph 4 of her exception as follows:

“4.
“That your petitioner, Blythe Glas-scock, present wife of Robert E. Glas-scock, was and is an indispensable party to the litigation in that no complete and equitable adjudication of the controversy can be made in petitioner’s absence, and that the joinder of petitioner in this proceeding is absolutely necessary to protect her substantial rights.”

The court denied Blythe Glasscock’s motion to set the exception for hearing. Blythe then filed a motion for a new trial which the trial court also refused to set down for hearing.

It was at this point that Blythe Glasscock appealed.

WAS BLYTHE GLASSCOCK AN INDISPENSABLE PARTY?

If the marriage of Robert and Carolyn was not dissolved by the divorce decree of September 15, 1975, because the decree was a nullity then the status and marital rights of Blythe Glasscock are vitally affected. Interestingly, Robert as well as Carolyn takes the position in this appeal that the judgment decreeing their divorce to be null is correct.

The questions relative to the judgment decreeing the nullity of the divorce argued on appeal are two: (1) was the divorce judgment of September 15, 1975, actually defective in fact as alleged by Carolyn Glas-scock; and (2) if the divorce judgment was a nullity when rendered, did Carolyn acquiesce in the judgment so that she was disqualified from bringing the annulment action under LSA-C.C.P. art. 2003?

Of these two questions only the first received consideration in the trial court. However, in view of the husband-appellee’s present position, we are concerned as to whether serious opposition was made on his behalf. In any event, Blythe Glasscock was not a party to the trial and had no opportunity to challenge the position taken by the first wife, Carolyn Glasscock. While we express no opinion as to whether Blythe Glasscock has raised serious defenses in this appeal to the action to nullify the divorce judgment, or could do so in a trial de novo, we have concluded that she was an indispensable party to the proceedings.

In defense of the trial court’s action we note that there is authority for the trial court’s refusal to permit Blythe Glasscock to intervene, in effect, by refusing to grant her a hearing on her exception or hearing on her motion for a new trial. Pratt v. Livingston Parish Police Jury, 278 So.2d 897 (La.App. 1st Cir. 1973). Nevertheless, under LSA-C.C.P. art. 2086 a third person who could have intervened may appeal a judgment in a case whether or not any other appeal has been taken. Andrus v. Police Jury of Parish of Lafayette, 266 So.2d 535 (La.App. 3rd Cir. 1972).

LSA-C.C.P. art. 641 provides for compulsory joinder of indispensable parties as follows:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
“No adjudication of an action can be made unless all indispensable parties are joined therein.”

Giving liberal effect to this article, we conclude that Blythe Glasscock was an indispensable party to the action of nullity brought by Carolyn Glasscock. It might be that we could decide the ultimate issues (nullity or the divorce judgment or, alternatively, the question of acquiescence) on the state of the present record. However, in briefs filed before this court none of the litigants have addressed the issues raised by the action of Carolyn Glasscock in bringing the various suits and rules subsequent to the divorce decree. Without making any ruling thereon we feel that serious issues of acquiescence may exist. Rather than make a ruling on the issues in this appeal, we conclude that fairness to all parties requires that we remand the case to the trial court for a trial de novo consistent with our views holding Blythe Glasscock to be an indispensable party. To that end, we direct that the plaintiff-appellees make the appellant Blythe Glasscock a party defendant and that she be given the benefit of service and citation and all delays allowed by law for answering or otherwise responding to the suit.

For the foregoing reasons the judgment of the trial court on the merits and rulings of the trial court relative to the exception and motion for new trial filed by Blythe Glasscock are reversed and set aside, and this case is remanded to the trial court for a trial de novo consistent with the views expressed herein. Costs of this appeal are assessed to plaintiff-appellee, Carolyn Crowe Glasscock.

REVERSED AND REMANDED.

      . Carolyn Crowe Glasscock and Robert E. Glasscock were before us in a previous matter reported at 398 So.2d 95 (La.App. 3rd Cir. 1981). We erroneously stated in that opinion that these parties were divorced in 1974. The correct date of the divorce was September 15, 1975.

      . LSA-C.C.P. art. 2003 provides:
      “A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.”
      LSA-C.C.P. art. 2002 provides:
      “A final judgment shall be annulled if it is rendered:
      * * * * * *
      (2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; or
      ******
      Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.”

      . We do not regard Blythe Glasscock as being in the position of a party attempting to collaterally attack a judgment, i. e., the judgment of March 2, 1981, declaring null and void the divorce judgment of September 15, 1975. As an indispensable party Blythe Glasscock should have been made a defendant. LSA-C.C.P. art. 641. Carolyn Glasscock is the party seeking to nullify a judgment; Blythe Glasscock seeks to uphold it. In this regard any position taken by Blythe Glasscock will consist of defenses to a suit rather than a collateral attack on a judgment.


author: JULIAN E. BAILES, Judge Pro Tern. McBRIDE, Judge,

text:
    Roger Dalton SMITH v. LOUISIANA CEMENT COMPANY, INC.
    No. 11953.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 15, 1981.

      Martzell, Montero & Lamothe, Wilson M. Montero, Jr., New Orleans, for plaintiff-appellant.
    Normann & Normann, David R. Nor-mann, New Orleans, for defendant-appellee.
    Before SAMUEL, BAILES and McBride, jj.
   JULIAN E. BAILES, Judge Pro Tern.

This is a tort action brought by Roger Dalton Smith to recover damages for personal injuries sustained on the premises of Louisiana Cement Company, Inc. on August 29, 1975. The plaintiff at the time of his injury was employed as a truck driver by Quality Transport, Inc., a company which specialized in transporting bulk materials. The workmen’s compensation insurer, Texas General Indemnity Company, intervened herein to recover all workmen’s compensation benefits paid to plaintiff.

The suit was filed on August 3, 1976 and was ultimately tried on May 17, 1979, by which time in excess of $16,000.00 had been paid by intervenor in workmen’s compensation and $5,212.25 in medical expenses. On May 22,1979 the trial court denied recovery to plaintiff and intervenor, thus this appeal.

On the day of his injury plaintiff was dispatched with his transport unit consisting of a tractor and trailer, commonly called an 18-wheeler, to the defendant’s storage and dispensing facility located at 14900 Intracoastal Drive, New Orleans, to haul a load of bulk material to a Baton Rouge customer.

In the loading process the hauling unit acquires a residue of the loaded bulk material on its exterior parts. This deposit of the material, or “dust” as it was called, must be washed from the unit before leaving the premises of the defendant. The standard operating procedure is for the truck driver to move his unit to a wash area which is simply a concrete slab adjacent to which there is a water faucet and large hose. It should be noted that this concrete slab or wash pad was not large enough to accommodate more than the trailer. The tractor was necessarily located forward of the wash slab.

By reason of the repeated use of the wash rack water continuously accumulated around the entire area to such extent that when plaintiff stepped from the cab of the tractor he always stepped into the accumulated water and resultant mud.

After driving the trailer onto the wash rack and securing the water hose, the plaintiff washed down the lower portion of the unit and then ascended the ladder that was integral to the trailer on the rear, from which position he washed the under-portion of the trailer. As plaintiff descended the ladder his right foot slipped, causing his left knee to strike a rung. After recovering from the immediate intense pain of the injury he stepped off the ladder, mounted his truck and proceeded to deliver his cargo. Three days subsequently plaintiff sought medical assistance for his injury.

The record fully supports the following factual findings: the appellant, at the time of his injury, was an experienced truck driver who was thoroughly familiar with his equipment and with the area in which he was injured. He had driven, according to his own testimony, into the defendant’s premises and onto the wash rack area over one hundred times prior to the occasion of his injury. He was aware of the presence of the mud and the deposit of mud on his boots. He was aware that there was always mud in this area.

The issues on this appeal as contended by appellant are: (1) Whether the defendant-appellee was negligent in permitting an unreasonably dangerous condition to exist in the area of the wash rack, and (2) whether the plaintiff-appellant should be adjudged contributorily negligent.

Appellant argues that as he occupied the status of an invitee the appellee owed him the duty of reasonable ordinary care, which duty included the prior discovery of such dangerous conditions, to correct these dangerous conditions or to warn appellant of such conditions. The theory of appellant’s case is that the large mud hole around the concrete wash pad or rack was an unreasonably dangerous condition of which appellee had knowledge. In the discharge of his duties as a truck driver there was no way in which he could avoid the danger. He was required to drive his unit into the undrained muddy area in order to wash the residue from his equipment. This was a danger he could not avoid if he was to comply with the standard operating procedure of his employer. Further, two factors combined to put the appellant in his untenable position — the failure of the appellee to drain the area and his failure to provide an adequate concrete wash rack area. In alighting from his tractor he was obligated to step into the area of the mud. It was in this manner that mud was placed on his boots and it was this mud which caused his right foot to slip, propelling his left knee into the ladder rung.

The defendant’s argument in defense is based in part on the principles enunciated in Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La. 1976). The issue appears to be whether in the management of his property the defendant has acted as a reasonable man in view of the probability of injury to others.

The cause in fact of the plaintiff’s accident was the mud on plaintiff’s boots which was present because of the lack of adequate drainage on the property of the defendant. However, this does not establish liability on the part of the landowner. Before there is liability on the part of the landowner it must be established that the landowner breached a legal duty to protect the plaintiff against this particular risk involved. To determine if there was a duty owed by the landowner we must examine the particular facts before us. We find and so hold that the landowner owed plaintiff a duty to discover any unreasonably dangerous condition on the premises and to either correct the condition or to warn him of its existence.

Apropos to this case is the following statement from Shelton v. Aetna Casualty & Surety Company, supra:

“The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus, the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner. Alexander v. General Accident Fire and Life Assurance Corp., supra, [98 So.2d 730 (La.App. 1st Cir. 1957)]; Crittenden v. Fidelity and Casualty Co., 83 So.2d 538 (La.App.2d Cir. 1955).”

We are compelled to find that the appellant was fully cognizant of the existing condition and he must be found to have assumed this risk attendant to the discharge of his duty of washing the dust from the exterior of his trailer. Assuming ar-guendo that the defendant was guilty of negligence in permitting the undrained area to persist on its premises, the full knowledge of this condition thereof possessed by the appellant denies his recovery.

Accordingly, for the foregoing reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

McBRIDE, J., dissents with reasons.

McBRIDE, Judge,

dissenting.

Although liability was not found in these cases, Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La. 1976); and Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La. 1979), the Supreme Court has defined the requisites for recovery which are present in this case, and I must dissent.

The inquiry here focuses on the duty and standard of care owed by this defendant to this plaintiff considering the facts and circumstances of this case.

What duty did defendant have to plaintiff? Defendant had the duty of exercising reasonable care for the safety of persons on its premises and the duty of not exposing such persons to unreasonable risks of injury or harm. Shelton v. Aetna and Walker v. Union, supra.

Defendant’s business required the wash slab; and the plaintiff and all other truck drivers were required to wash down before entering the highway as not to be in violation of R.S. 32:289-B. Therefore the question as to whether defendant managed its property as a reasonable man in view of the probability of injury to others must be answered from the facts.

The facts clearly show that the narrow wash slab required expert backing as the slab is to narrow to accommodate tractors and any deviation from perfect would necessarily cause the trailer wheels to drop into the muddy mire that surrounded the slab. Additionally, plaintiff was required to alight from his tractor into the mud and walk some distance in it to obtain a large hose (approximately IV2" in diameter), and to climb to the top of his rig on a straight steel ladder and wash down the truck.

The conditions described existed for some time. One must conclude that they were known to defendant.

It is not only reasonable to conclude but necessary to conclude that defendant could foresee harm to others from this condition and that it did not manage it’s property as a reasonable man and created an unreasonable risk of injury.

The presence of plaintiff on defendant’s property arose out of mutual interests which was beneficial to defendant and therefore plaintiff’s status was that of an “invitee”. The duty owed by defendant was to maintain it’s premises in a reasonably safe condition for such use by the invitee as is consistent with his purpose. Mercer v. Tremont, 19 So.2d 270 (La.App.2nd Cir. 1944).

“The duty owed an invitee includes the use of reasonable care and the discovery of reasonably foreseeable conditions which may be dangerous and result in injury, especially where there is time for the correction of the condition or the giving of warning to the invitee of the danger...”
Howard v. Early Chevrolet-Pontiac-Cadillac, Inc., 150 So.2d 309 (La.App. 2nd Cir. 1963)

The Supreme Court while denying liability in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La. 1976) abolished the classification of invitee, et cetera, as being of little value in applying C.C. 2316(15); and in Shelton and Walker, supra, adopted the duty-risk approach by a particular person to a particular person rather than by common law categories. The facts in this case show the duty and the violation of the duty and that plaintiff had no choice other than to act as he did.

The condition of defendant’s premises and the mud on plaintiff’s boot was the cause in fact of plaintiff’s injury and was there due to defendant’s negligence.

No negligence has been proved against plaintiff nor does the record establish that he assumed the risk. The defendant furnished the wash slab in furtherance of it’s business in selling cement materials and I submit that it’s duty to the truck drivers was the same as an employer or executive officer as the drivers had no other alternative and that the theory and holdings of the following cases are controlling.

“. . . a workman’s superior cannot create or permit danger and send the workman into it with a warning (none given here) and escape liability on a theory that the workman was contributorily negligent merely by going into the danger. The workman’s only other alternatives are to tell his superior how to run the job or quit.”
“. . . The test of negligence is reasonableness. While it may be true that the reasonable man would wish to avoid the known risk here, an employee is not entirely free to do so. He cannot simply decline to do the work, because he would then subject himself to a loss of his job and his means of support for self and family.. .”
“... When the party charged with the responsibility of observing safety factors fails to do so, it is grossly unjust to place the blame for a resulting accident on the person who poured the last cup of water before the defective dam broke, unless that person also exercises a substantial amount of knowledgeable control over the dangerous situation. There was no such knowledge or control by plaintiff in the present case. We concluded that the plaintiff’s conduct was reasonable under the circumstances...”
“... he is not to be judged as contributo-rily negligent just because he fails to stop, to analyze the possible alternatives and with some superior wisdom, calculate the relative advantages and disadvantages of the alternatives before he acts. In other words, if the safe alternative is as readily available and as obvious to the workman as is the danger of not choosing it then the workman is guilty of contributory negligence in performing the dangerous task.” Galloway v. Employers Mutual of Wausau, 286 So.2d 676 (La.App. 4th Cir. 1973—Cert, denied)—Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir. 1970). “We therefore conclude that the trial judge properly rejected the defense of assumption of risk.” Mitchell v. Hepinstall Steel Co., 264 So.2d 325 (La.App. 4th Cir. 1972 — Cert, denied). “We conclude, as apparently did the jury, that the appellants failed to prove contributory negligence or assumption of risk on the part of O’Keefe. The duties of his work required him to be where he was, and he was doing his best to discharge those duties.” O’Keefe v. Warner, 288 So.2d 911 (La.App. 1st Cir. 1973—Cert, denied).
“We believe that by the term ‘a readily available reasonable alternative’ is meant that another option was open to the employee; he could have worked elsewhere, at a place which was both safe and free of any risk of harm. As regards an alternate means of access to the muffler pits, none existed or was furnished. There was no other means of ingress into and egress from, the muffler pits other than the steps upon which plaintiff Billedeaux fell.” Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3rd Cir. 1978 — Cert, denied on liability).

All requirements for recovery have been met and plaintiff should have been awarded substantial damages.


author: HAWKINS, Justice,

text:
    Walter OWENS, III v. STATE of Mississippi.
    No. 52869.
    Supreme Court of Mississippi.
    Nov. 4, 1981.
    Stanfield, Holderfield & Hall, Percy S. Stanfield, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Walter Owens, III, appeals from a conviction of murder in the Circuit Court of the First Judicial District of Hinds County. We reverse and remand the case.

The main issue on appeal is whether reversible error was committed by the State in calling the wife of the appellant as a witness. He contends that the State’s action forced him to object to her testimony in the presence of the jury. He further argues that the error was compounded during his cross-examination when the State asked him about his wife’s presence during the fatal difficulty, without eliciting any material fact other than her presence.

Ellis M. Hubbard, also called James Hubbard, owned and operated a rooming house located at 928 Hunt Street in Jackson. J. T. Tillman and his sister, Bertha, were residents of the rooming house along with Hubbard.

Martha Tillman Owens, a sister of J. T. and Bertha, was married to Owens, and they had four children. Martha separated from the defendant about three months pri- or to November 30, 1979, and she and the children moved into the house on 928 Hunt Street.

Owens visited his children fairly frequently, “every other day” or so, according to the record. He was unemployed.

Around 6:30 p. m. on November 30, 1979, Owens went to the house and wanted to take the children out, but Martha objected and he left. Around 7:30 p. m. he returned. According to Owens, he was going into the kitchen for some food for his daughter, and Hubbard, who had not eaten, got into an argument with him. Since this case must be reversed for a new trial we will not detail the recorded particulars of what transpired. Suffice it to say, the argument continued, and Owens went out to his car, got a pistol, and shot and killed Hubbard, who was standing in the front doorway of the house. Martha Owens was not involved in any manner in the controversy between Hubbard and Owens.

Owens later arrested and admitted killing Hubbard. Sufficient evidence was presented to warrant his conviction of murder.

J. T. Tillman testified as a witness for the State. While the record reflects the district attorney at first was perhaps confused as to the relationship of the parties living in the rooming house, Tillman clarified the matter, testifying that Martha and Owens were married, but were separated, as far as he knew. He did not know how long they had been separated prior to the slaying. Tillman further testified that Bertha was not at the rooming house at the time of the fatal difficulty.

Following Tillman’s testimony, the State called Martha as a witness. The record reflects the following transpired:

Q. Would you state your name, please?
A. Martha Owens.
Q. And where do you live, Ms. Owens?
A. In Mendenhall, Mississippi.
Q. Are you married?
A. Yes.
Q. Who are you married to?
A. Walter Owens, III.
Q. Is Walter Owens, III in the courtroom today?
A. Yes.
Q. Would you point him out, please?
A. (Witness pointed.)
BY MR. FRAISER: Would you let the record reflect that the witness has identified the Defendant?
BY THE COURT: So reflect.
Q. And where did you say you live, Ms. Owens?
A. Mendenhall.
Q. In Mendenhall?
A. Um-hmm.
Q. I direct your attention back to the night of November the 30th, 1979, do you recall that date?
BY MR. POOLS» If the Court please, we object and we’d like to be heard. (R. 73)

In chambers the State further questioned Martha, and counsel for the defendant renewed his objection, which was sustained. Defense counsel then moved for a mistrial, which was overruled.

When Owens took the stand in his own behalf, the State compounded this error by insinuating, over the objection of the defense, that the defendant and Martha had an argument that night because he was not making child support payments, which Owens denied.

Further, and again over the objection of defense counsel, the State questioned the defendant about Martha being in the living room of the house and being a material witness to some of the trouble between Hubbard and the defendant.

Defense counsel made the following statement to the court in chambers:

BY MR. POOLE: If the Court please, the District Attorney has by the last questioning attempted to bring out once again the fact that here are certain things that the wife — his wife and he talked about and here are certain things that he and his wife — that his wife knew and therefore, she would be an ideal witness. Once again, we submit, Your Hon- or, in a sole effort to prejudice this Defendant in the eyes of the Jury because he has had to object to his own wife testifying and all of this in the presence of the Jury. I submit, Your Honor, that it is not just this error, but it’s an accumulation of errors on the part of the District Attorney that we submit — we humbly submit is a design on his part to feel that guilt or innocence is less relevant than winning or losing down in the lower court. We object to the — first we object to the line of questioning concerning the wife. (R. 146)

The court overruled the objection and permitted the State to question the defendant before the jury about the presence of Martha, and that she must have been an eyewitness to part if not all of the trouble. This could only have tended to affix in the minds of the jury that Martha was an eyewitness, and but for objection from the defendant, could testify to material facts concerning this difficulty.

We are not holding that a defendant may not be cross-examined to ascertain the persons present at the scene of the crime with which he is charged even if one of the persons is a spouse of the defendant. Where, however, the state has called the spouse of the defendant to the stand and defendant has objected to the testimony of his spouse, as in this case, it is error to permit the state to cross-examine the defendant about the presence of his spouse at the scene of the crime with which defendant is charged.

Mississippi Code Annotated § 13-1-5 (Supp. 1980) provides that in a criminal case such as this, where there was no controversy between the husband and wife, one spouse is not a competent witness against the other without the consent of both. As we stated in Warren v. State, 336 So.2d 726, 730 (Miss.1976), this right would mean little or nothing if the exercise of the right is made the means of prejudicing the jury against the accused.

The State can hardly claim it innocently placed Martha on the stand, unaware that she was Owens’s wife. In the first place, if her brother had not made it abundantly clear on direct and cross-examination that Martha was the wife of Owens and that they were not divorced, Martha could have told the State, had it chosen to ask her before putting her on the stand as a witness.

Although this Court has uniformly held it to be error for the State to call a spouse to the stand as a witness against the other, we have not always held it to be reversible error. See Bell v. State, 244 Miss. 867, 147 So.2d 624 (1962). We think, however, the facts in this case more closely resemble those in Warren and in Outlaw v. State, 208 Miss. 13, 43 So.2d 661 (1949). There is sound public policy supporting the law that one spouse should not be a competent witness against the other except in certain circumstances, as enunciated by statute.

Also assigned as error was the giving of a manslaughter instruction on behalf of the state incorporating culpable negligence. This instruction should not be asked for or given on retrial.

The State also adduced evidence of collateral matters pertaining to trouble between the defendant and his wife concerning child support, that the gun used by the defendant had been stolen, and events occurring after the shooting. These assignments of error would not otherwise be considered because they were not timely raised by an objection in the trial court. We do mention them, however, and suggest that the State, in event of a retrial, restrict the proof to pertinent, relevant facts. We rely upon the able State’s attorney and the trial judge to restrict the evidence within appropriate bounds.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: PER CURIAM. MADDOX, JONES and ADAMS, JJ.

text:
    Ex parte J. B. HUBBARD. (In re: J. B. Hubbard, alias, etc. v. State of Alabama).
    78-688.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Joel L. Sogol, Walter P. Crownover and Ralph Burroughs, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen., for respondent.
   ON SECOND APPLICATION FOR REHEARING

PER CURIAM.

The judgment rendered pursuant to the opinion of this Court dated March 7, 1980, and the denial of the application for rehearing dated April 4,1980, both reported at 382 So.2d 597, are set aside; the judgment of the Court of Criminal Appeals, 382 So.2d 577, is reversed; and the cause is remanded to the Court of Criminal Appeals on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Beck v. State, 396 So.2d 645 (Ala.1980); Ritter v. State, 403 So.2d 154 (Ala.1981); and Reed v. State, 407 So.2d 162 (Ala.1981).

REVERSED AND REMANDED.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

On remand, 405 So.2d 695.

MADDOX, JONES and ADAMS, JJ.

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala.1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala.1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 632 (footnote 7) 100 S.Ct. 2382, 2386 (footnote 7), 65 L.Ed.2d 392 (1980).


author: PER CURIAM.

text:
    J. B. HUBBARD, alias James Billy Hubbard, alias John Barney Hubbard v. STATE.
    6 Div. 715.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
   AFTER REMANDMENT

PER CURIAM.

This case is reversed and remanded on authority of the Alabama Supreme Court’s decision in Hubbard v. State, 405 So.2d 695 (1981).

REVERSED AND REMANDED.

All Judges concur

[Opinion originally published at 382 So.2d 577; affirmed, 382 So.2d 597.]


author: PER CURIAM. MADDOX, JONES and ADAMS, Justices

text:
    In the Matter of Thomas Milton WILSON v. STATE of Alabama.
    77-433.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    A1 Pennington and Reggie Stephens, Mobile, and William N. Clark, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Supreme Court of the United States, on June 30, 1980, 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1133, issued the following mandate in this cause:

ON WRIT OF CERTIORARI to the Supreme Court of Alabama.
THIS CAUSE having been submitted on the petition for writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the said Supreme Court [371 So.2d 943] in this cause is vacated, and that this cause is remanded to the Supreme Court of Alabama for further consideration in light of Beck v. Alabama, 447 U.S. 625, [100 S.Ct. 2382, 65 L.Ed.2d 392] (1980).

Therefore, pursuant to the mandate of the Supreme Court of the United States, this case is remanded to the Court of Criminal Appeals for consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and this Court’s decisions in Beck v. State, 396 So.2d 645 (Ala.1980); Ritter v. State, 403 So.2d 154 (Ala.1981); and Reed v. State, 407 So.2d 162 (Ala.1981).

REMANDED WITH DIRECTIONS.

All Justices concur, except MADDOX, JONES, and ADAMS, JJ., who concur specially.

On remand, Ala.Cr.App., 405 So.2d 696.

MADDOX, JONES and ADAMS, Justices

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala.1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala. 1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 2386, 65 L.Ed.2d 392, (footnote 7) (1980).


text:
    Thomas Milton WILSON Alias Tommy Wilks v. STATE.
    1 Div. 866.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
   AFTER REMANDMENT

PER CURIAM.

This case is reversed and remanded on authority of the Alabama Supreme Court’s decision in Wilson v. State, 405 So.2d 696 (Ala.1981).

REVERSED AND REMANDED.

All Judges concur.

[Opinion originally published at 371 So.2d 932; affirmed, 371 So.2d 943, vacated 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1133.]


text:
    In the Matter of Billy Ray WILLIAMSON v. STATE of Alabama.
    77-610.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Julian D. Butler and Steven R. Berry-man, Huntsville, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Supreme Court of the United States, on June 30, 1980, 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1132 issued the following mandate in this cause:

ON WRIT OF CERTIORARI to the Supreme Court of Alabama.
THIS CAUSE having been submitted on the petition for writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the said Supreme Court [370 So.2d 1066] in this cause is vacated, and that this cause is remanded to the Supreme Court of Alabama for further consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

Therefore, pursuant to the mandate of the Supreme Court of the United States, this case is remanded to the Court of Criminal Appeals for consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and this Court’s decisions in Beck v. State, 396 So.2d 645 (Ala. 1980); Ritter v. State, 403 So.2d 154 (Ala. 1981); and Reed v. State, 407 So.2d 162 (Ala. 1981).

REMANDED WITH DIRECTIONS.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

On remand, Ala.Cr.App., 405 So.2d 698.

MADDOX, JONES and ADAMS, Justices

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala. 1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala. 1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 2386, 65 L.Ed.2d 392 (footnote 7) (1980).


text:
    Billy Ray WILLIAMSON v. STATE of Alabama.
    8 Div. 3.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Julian D. Butler and Steven R. Berry-man, Huntsville, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala.1981), and Williamson v. State, 405 So.2d 697 (Ala.1981).

REVERSED AND REMANDED.

All the Judges concur.

[Opinion originally published at 370 So.2d 1054; affirmed, 370 So.2d 1066, vacated 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1132].